Europeanisation of Dutch Administrative Law, by Rob Widdershoven

In May 2021, the Committee Europeanisation General Administrative Law of the Dutch Association of Administrative Law published a report about the influence of European rules and principles on the theory and practice of Dutch general administrative law. In it, it is examined which attitude the Dutch administrative law community could have towards two proposals for a European general administrative law act, the Model Rules on EU Administrative Procedures of ReNEUAL, and the proposal for a Regulation on the Administrative Procedures of the European Union’s institutions, bodies, offices and agencies of the European Parliament. According to the committee, both proposals contain many rules and concepts, which could mean a serious enrichment of Dutch general administrative law. Nevertheless, for several reasons the committee does not favour an obligatory application of these EU rules in the Netherlands, even not if the obligation would be limited to administrative action by Dutch authorities within the scope of Union law. On the other hand, bottom-up voluntary adoption of several European rules and principles by the Dutch courts or legislators is highly applauded. Recently, the administrative courts have especially seemed rather amenable to such an adoption.

1. From Committee to Report

It is good practice of the Dutch Association of Administrative Law (Vereniging voor Bestuursrecht) to establish every now and then a committee of administrative law experts which is assigned to study an important topic or development of administrative law and to do recommendations to the Dutch administrative law community about how to deal with it in future. In November 2016, such a committee, the Committee Europeanisation General Administrative Law, was asked to write a report about the influence of the development of general administrative rules and principles at European level on the theory and practice of Dutch general administrative law. The committee consisted of fourteen persons, coming from academia, the legal profession, the government, and the judiciary. Therefore, it more or less represents the Dutch administrative law community. In May 2021, it published its report Europa en het algemeen bestuursrecht (a summary in English can be accessed by clicking here). The report was well-received in a meeting of the Association of Administrative Law which took place on 25 June 2021.

Points of departure of the report are two proposals for a European general administrative law act, the Model Rules on EU Administrative Procedures of ReNEUAL, and the EP proposal for a Regulation on the Administrative Procedures of the European Union’s institutions, bodies, offices and agencies (2016/2610(RSP)). The reason for this choice, while both proposals are not applicable in the MS (Member States), is twofold. First, because they may be considered a European good practice, as they are based on thorough research of the case-law of the CJEU and of European sectoral codifications, and comparative research into general administrative rules and principles in several MS. Second, it is possible that parts of the proposals may indirectly become binding in the MS in future, either through the adoption of specific rules in the case-law of the CJEU or if they are mandatory prescribed in sectoral EU legislation in specific areas of law.

In the report, two main questions are discussed. First, which aspects of the proposals are a welcome addition to the current rules and principles of Dutch administrative law. Second, is it desirable for the proposals to apply to administrative action in the MS as well? Hereafter, the most important findings are summarised.

2. Inspiration by the European Model Rules for the Netherlands

According to the committee, both the ReNEUAL Model Rules and the EP proposal contain many rules and concepts, which could enrich Dutch general administrative law and should be adopted in Dutch law, arguably through adjustments in the Dutch General Administrative Law Act (GALA).

The committee is highly positive about the adoption in Dutch law of European principles of law which form the basis of both European proposals, in particular the principle of good administration. In line with the codification of the latter in Article 41 of the Charter, the committee favours a similar codification of good administration in the Dutch constitution. In addition, other principles and citizen rights, in particular, the principles of transparency and participation and the right to a service-oriented administration should be codified in the Dutch GALA. Moreover, existing national principles, in particular the principle of proportionality, should be further developed by the courts in line with their European equivalents. Such voluntary adoption of European principles enhances the legal unity within the Europan legal order and prevents frictions – both existing and future ones.

The model rules on single case decision-making in the EP proposal and in Book III of the ReNEUAL Model Rules offer much inspiration for adjustments in the Dutch GALA. In the first place, the procedure for taking initial decisions in the European proposals could be a model for the Netherlands, because it is more in line with the EU rights of defence than the current Dutch decision-making process. Second, the proposals provide inspiration in respect of a GALA chapter on evidence in the administrative phase, a chapter that is currently missing. Topics that could be part of such a chapter are the citizen’s duty to cooperate with the gathering of information; the party’s opportunity to ask the administration for an opinion about the information to be provided; witnesses and experts as means of evidence; and the exclusion as evidence of information gathered in breach of the privilege against self-incrimination. Third, the committee advises introducing, in line with the European rules, the responsible case official, who is the citizen’s point of contact and who guards the progress of decision-making and compliance with the rights of defence in practice.

Book V of the ReNEUAL Model Rules on mutual assistance is an important reason for the committee to propose several additions to the GALA regarding assistance duties of Dutch administrative authorities in their roles as requesting and requested authority under EU and international law. The first addition is the codification in the GALA of the EU principle of sincere cooperation of Article 4(3) TEU. This principle constitutes the legal basis for administrative assistance within the EU and is increasingly prescribed in EU sectoral legislation. Moreover, according to the Dutch administrative courts (eg Council of State 14 November 2007, ECLI:NL:RVS:2007:BB7789; Central Appeals Tribunal 14 January 2020, ECLI:NL:CRVB:2020:69), it also applies to the cooperation between Dutch authorities, if such cooperation is necessary for the effective application of EU law. Furthermore, the committee proposes to include in the GALA a standard arrangement concerning European/international administrative assistance, which can be made applicable in sector-specific legislation foreseeing such assistance. Inspired by Book V, the standard arrangement should contain rules regarding the following topics: Dutch authorities as requesting authority (competence, content of request, statement of reasons, withdrawal of a request, lawful use of information obtained), Dutch authorities as a requested authority (duty to cooperate, refusal grounds), transboundary communication between authorities and with residents of another country, and applicable safeguards and legal protection. Finally, the committee advises supplementing the inspection section of the Dutch GALA with specific provisions concerning extra-territorial inspections within the EU.

3. European model rules mandatory applicable in the Member States?

As already stated, the committee does not favour the obligatory application of the European proposals in the Netherlands, even if this obligation were limited to administrative action by Dutch authorities ‘within the scope of Union law’. According to the committee, even for such a limited applicability, a legal basis is currently missing in the Treaties. Moreover, such limited applicability would lead to the situation that Dutch administrative authorities within the – already wide and still increasing – scope of Union law would be obliged to apply the European rules, while outside this scope, the Dutch GALA would apply. This division would complicate administrative law even more and would undermine legal unity within the national legal order. Therefore, it would probably force the Dutch legislator to adopt the European proposals in purely domestic cases as well. Such a far-going consequence seems not acceptable for several reasons.

First, because full or limited applicability of the European proposals in the MS is not necessary, as there are no indications that the current implementation of EU law by means of different national administrative laws is generally problematic. Second, because imposing one uniform body of general administrative law on all MS does not do justice to the legal cultural differences existing between the MS. Third and finally, European model rules, if imposed by means of binding EU law instruments, are rather inflexible. Indeed every minor question of interpretation has to be referred by the national courts to the Court of Justice. Furthermore, due to the complex legislative EU process, it is not easy to modify the European model rules, even if modification might be necessary for societal reasons.

4. Voluntary adoption of EU concepts and spill-over effects

The committee’s rejection of the mandatory applicability of European model rules in the MS does not mean that these rules are, or should be, irrelevant for the Netherlands. On the contrary, as already stated in section 2, the committee strongly favours the voluntary adoption by the Dutch legislator and the courts of several rules, concepts, and principles in purely domestic cases. This voluntary adoption is preferred above mandatory imposition, as it allows a more harmonious integration of the European rules and principles in Dutch administrative law.

At the moment the courts seem rather amenable to voluntary adoption of EU concepts and principles in non-EU cases. Fairly recently, the Supreme Court (10 October 2014, ECLI:NL:HR:2014:2928) and the Council of State (3 February 2021, ECLI:NL:RVS:2021:205) have adopted the EU conditions for the direct effect of Union law, unconditional and sufficiently serious, to determine whether provisions of international treaties are self-executing. In addition, the administrative courts have developed a comprehensive doctrine on the distribution of limited public rights (since Council of State 2 November 2016, ECLI:NL:RVS:2016:2927), which is highly inspired by the CJEU’s case law on the EU principles of non-discrimination and transparency. Moreover, in 2020 the Council of State (28 October 2020, ECLI:NL:RVS:2020:2571) has extended the applicability of the EU enforcement conditions of the Greek Maize case (Case C-68/88, ECLI:EU:C:1989:339) –  effectiveness, dissuasiveness, and proportionality – to enforcement cases in general, including cases determined by national law only.

Finally, it can be noted that at the time of writing the question is pending before the administrative courts whether they should interpret the Dutch principle of proportionality in conformity with its European equivalent. So, as regards voluntary adoption in the Netherlands, these are certainly exciting times.

Posted by Rob Widdershoven (Professor of European Administrative Law at Utrecht University; chairman of the Committee Europeanisation General Administrative Law).

The full references of the report discussed in this blog are: Commissie Europeanisering algemeen bestuursrecht, Europa en het algemeen bestuursrecht. Burger en bestuur in de gemeenschappelijke rechtsorde, VAR-reeks 165, Den Haag: Boom juridisch 2021.

The members of the commission were: Henk Addink (Utrecht University), Jannetje Bootsma (attorney at Pels Rijcken), Jacobine van den Brink (University of Amsterdam), Rianne Jacobs (Ministry of Justice and Security, Vrije Universiteit Amsterdam), Oswald Jansen (attorney at Resolución, Tilburg University), Henk Lubberdink (Council of State), Anne Meuwese (Tilburg University), Adriënne de Moor-van Vugt (Council of State, University of Amsterdam), Saskia Nuyten (attorney at NautaDutilh), Monique van Oers (Authority for Consumers and Markets), Rolf Ortlep (University of Amsterdam, Open University), Frank van Ommeren (Vrije Universiteit Amsterdam), Raymond Schlössels (Radboud University Nijmegen), and Rob Widdershoven (Utrecht University, Council of State, chairman of the committee).

Suggested citation: R Widdershoven, “Europeanisation of Dutch Administrative Law”, REALaw.blog, available at https://realaw.blog/2021/11/02/713/