Introduction
The Dutch political and constitutional tradition has always been characterized by a limited role of the judiciary when it comes to judicial review of legislation. Article 120 of the Dutch Constitution, for example, prohibits the courts from testing Acts of Parliament against the Constitution (and against general legal principles). When the General Administrative Law Act (GALA, available in Dutch here and in English here) was enacted, the legislator opted to treat administrative decisions containing general binding regulations as legislation, instead of as ‘regular’ administrative decisions. This explains why administrative courts are competent to review decisions by administrative authorities, but they are not competent to directly review decisions containing so-called ‘general binding regulations’. However, in a judicial review procedure regarding a reviewable administrative decision, claimants may claim that the general binding regulation providing the legal basis for the decision, which is the object of the direct challenge, is unlawful. Such a plea of illegality requires the administrative courts to indirectly review administrative decisions containing general binding regulations.
Indirect review of general binding regulations: the administrative courts
If an interested party applies for judicial review of a single-case decision, this party may, in the context of that judicial review procedure, enter a plea of illegality, and in that way indirectly challenge the legality of the general binding regulation upon which the decision is based. The administrative court will then review whether this general binding regulation is lawful. Although interested parties must apply for judicial review against a decision within six weeks (article 6:7 GALA), there is no temporal limitation on the possibility of indirect judicial review of the general binding regulation that was the basis for the contested, reviewable decision. In other words, the ‘age’ of the challenged general binding regulation is not relevant, as long as the directly challenged administrative decision was not issued more than six weeks before the judicial review procedure.
What are the legal consequences of an administrative court ruling that the adoption of certain general binding regulations in a decision was unlawful, either in general or in a specific case? When an administrative court reaches such a conclusion, it will judge that the judicial review of the decision taken by an administrative authority based on that general binding regulation is well-founded (article 8:70 GALA) and the court is required to quash the disputed (reviewable) decision (article 8:72 GALA). The court ruling only formally affects the litigants involved in the procedure. However, any judgment that considers a general binding regulation to be unlawful in general will have a profound effect in practice. The administrative court will thus have ruled that the particular general binding regulation is not binding and therefore cannot form the basis of any administrative decision. When an administrative court rules that the application of a general binding regulation is unlawful only in a specific case, the legal consequences can be limited to the parties involved in the procedure. This would occur in situations where the court concludes that the administrative authority was not allowed to apply the general binding regulation in that particular case and that the general binding regulation should have remained inapplicable in that particular instance.
Refining the scope and the intensity of indirect judicial review
Over time, the Dutch courts’ review of general binding regulations has become increasingly intense. Milestones in this development are the Landbouwvliegers (Association of Crop-dusters) case of the Dutch Supreme Court in 1986 and the 2020 case law following an opinion of Advocate General Widdershoven.
The Landbouwvliegers case introduced the possibility of reviewing administrative decisions containing general binding regulations in light of unwritten general principles of law, but at the same time established that the review of the courts was to be restricted to the question of whether the administrative authority acted in violation of the prohibition of arbitrariness. This would only be the case, according to the case law, if a reasonable administrative authority would not have come to the conclusion reached in the measure. Administrative discretion was, therefore, still very much respected by the courts.
Although there have been some indications that the Dutch courts were willing to assess the legality of general binding regulations against other general legal principles, a clear break with the Landbouwvliegers case was decided in 2020. The administrative courts decided that the intensity of indirect judicial review of general binding regulations should go beyond the threshold of arbitrariness. From then on, the courts assess whether the content of the general binding regulation or how it was adopted, may have such serious shortcomings that it cannot serve as a basis for the reviewable act that is the subject of the direct judicial review claim. In this indirect judicial review of the general binding rules, general principles of law and good governance, including the proportionality principle (article 3:4 GALA), the principle of due care (article 3:2 GALA) and the (unwritten) principle to state proper and appropriate reasons, form an important guideline. This means that the highest administrative courts in the Netherlands decided that the scope of the indirect review is broadened to also encompass formal (unwritten) general principles of law.
Not only was the scope of the review enlarged, but as of 2020, the courts also exercise less restraint (less deference) when assessing the legality of general binding regulations. The intensity of the assessment depends on, among other things, the discretion of the administrative authority in light of the nature and content of the power awarded by the legislator, and the interests involved. The review will be more restrained where the authority has been granted broad discretion due to the factual or technical complexity of the matter, or where political considerations can have played a significant role when taking the decision. In the latter case, the court does not have the power to determine the value or social weight to be attached to the interests involved as it sees fit. As regards the interests to be accounted for, and the balancing of those interests, the more far-reaching consequences the general binding regulation has on the life of the interested parties, and the more fundamental rights it may affect, the more intensive the court’s assessment of the administrative authority’s weighing exercise will be.
Indirect judicial review in practice
What are the effects of this new scope and intensity of the indirect review of general binding regulations? For instance, how often do the administrative courts in the Netherlands indirectly review (the application of) general binding regulations? And if they do, what are the results? To obtain an answer to these questions, the case law of the administrative courts between 2010 and 2020 in the Netherlands has been examined.
While the number of cases involving indirect review varies annually, in general they were and are exceedingly rare. The lowest number of cases we found was 24 (2010), and the highest was 87 (2020). The differences between successive years are significant and not linear, so there is no way to conclude that there is a progressive yearly increase in the number of judgments issued by administrative courts that involve indirect review. The number of indirect review cases is also not evenly distributed among the different sub-areas of administrative law. It occurs, for example, relatively frequently in environmental and socio-economic administrative law, but not at all or hardly in tax law, social security law or immigration law.
Claimants may either argue that a general binding regulation that was the basis for the contested decision violates higher legislation, or that it conflicts with one or more general principles of law, such as the principle of due care or proportionality. When appellants request an indirect review, they are significantly more likely to argue the former than the latter. In 2010, five out of every six cases of indirect review alleged a violation of a higher regulation; in 2020, it was four out of every five cases.
If the court does indirectly review a general binding regulation, the appellant is considerably more likely to fail than to succeed. Of the judgments in which a plea of illegality was raised, only one out of six resulted in the judgment that the relevant general binding regulation was either non-binding or that it should be considered inapplicable in the particular instance. A successful indirect judicial review, in the vast majority of cases, resulted in the court deciding that the contested decision may not be based on the regulation in question in the particular case, and practically never that the regulation is non-binding.
What is to come?
The Netherlands has no constitutional court and Article 120 of the Dutch constitution does in principle prohibit assessing an Act of Parliament against the provisions of the constitution or general legal principles. Although there is discussion about a possible change in Dutch law that would allow all courts to evaluate Acts of Parliament against specific constitutional rights, no discussion seems to surface concerning the topic that we discussed in this blog piece: the indirect judicial review of administrative decisions containing general binding regulations. The recently intensified review of such administrative decisions by the administrative courts is generally well-received and accepted. There remains, however, discussion about the question of whether the administrative courts should be given the competence to directly review decisions containing general binding regulations. There is no consensus yet as to whether this is a promising idea. We expect that the debate about the current plans that allow for Acts of Parliament to be assessed against certain constitutional rights by all courts will also lead to more debate on the codification of the possibility and legal consequences of indirect judicial review.
Posted by Kars de Graaf, Bert Marseille, and Marc Wever (University of Groningen)
Suggested citation: K. de Graaf, B. Marseille, and M. Wever, “Rebalancing indirect judicial review of administrative action in The Netherlands”, REALaw.blog available at https://realaw.blog/?p=2278
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