LLS Week 3 – Administrative Law

Administrative authorities

Orders

Enforcement and administrative sanctions

Appealable orders

Interested party

Notice of objection procedure (preliminary procedure)

Appeal in court

❖ Preparing and taking of orders.

❖ How to dispute orders.

❖ Often combined with specific legislation.

❖ Central concepts: Authority, order, interested party 1:3 GALA and 8:1 GALA.

Type A:

Article 1:1 para. 1 under "A" - organ of a legal entity under public law

• Legal personality established by a public body through statute
• Organ of this legal entity with autonomous power.

E.g. DUO = Financial aid act, National insurance institute

Type B:

Article 1:1 para. 1 under "B" - another person or body

• Legal personality established under private law
• Invested with any public authority
• Person / body with public authority
• Clear-cut public task and power to make one-sided binding decisions

E.g. Closed cooperation (APK = Dutch car inspections)

1. Written

2. Of an administrative authority

3. Constituting a public law act

a) Public = Authority exercises public power

b) Law act = Intended legal consequence (conscious change in legal reality

Order of a general nature:

1. Generally Binding Regulations
2. Administrative Measures
3. Policy Rules

Orders not of a general nature.

4. Administrative Decisions

--> General written rule
--> Addressed to an indefinite number of people
--> Applicable to an indefinite number of case (rule repeatable)
--> Binding (no deviation possible)
--> Independent regulation

E.g. Prohibition to park and option of coercive action.

--> Effect specific as well as general
--> No independent legal character

E.g. Traffic sign

--> Article 1:3 para 4 GALA
--> Weighting interests
--> Determining facts --> Interpreting statutory legislation
--> Similar to general binding regulation
--> Instruction for civil servants
--> Deviation possible
--> Binding if policy rules were made public

E.g. Warning before imposing sanction and extenuating circumstances.

--> A specific person or specific object = not of general nature
--> Creates rights / duties or changes legal status
--> Favorable (e.g. a grant) or unfavorable (e.g. tax assessment)

E.g. Decision with notice of coercive action.

--> Application getting rejected = also an administrative decision!

1. Reparatory

2. Punitive

1. Coercive Action

2. Coercive Penalty Payment

Article 5:1, 5:2 para 1 under b and 5:21 GALA

• Instruction with threat of physical intervention and deadline
• After time limit: Costs reparation for wrongdoer

Article 5:1, 5:2 para 1 under b and 5:31 under d GALA

• Instruction under threat of paying sum of money and deadline
• After time limit: Collection of forfeited sum

• Alternative to coercive action: Article 5:32 GALA

Administrative Fine

▪ Direct (unconditional) obligation to pay sum of money

▪ Punitive: Article 5:40 para 1 GALA

▪ Transferred from criminal law to administrative law

▪ No judicial intervention beforehand, but access to court afterwards: Article 6 ECHR

Limits to power of public body or administrative authority and they are the substantive norms for decision-making.

▪ Prohibition against detournement de pouvoir - An administrative authority may not use a power to take a decision for a purpose other than that for which it was conferred.

▪ Principle of legitimate expectations - The aroused expectations in which an interested party may have reason ably trusted, must be honoured

▪ Principle of legal certainty - When the administration is guided by a set policy, it may not unexpectedly shift direction when citizens suffer demonstrable damage from it.

▪ Principle of proportionality - He adverse consequences of an order for one or more interested parties may not be disproportionate to the purposes served by the order.

▪ Principle of equality - Equal cases must be treated equally and unequal cases must be handled to the degree that they differ.

▪ Obligation to balance interests - In making a decision, the administration always has to weight interests, in so far as no limitation is placed on this duty by a statutory regulation or by the nature of the power to be exercised.

Three requirements:

1. Appealable order

2. Interested party

3. Preliminary procedure (administrative authority)

If requirements are met: access administrative court

• Generally binding regulation

• Policy rules

• Physical action

• Private disputes

Administrative Measures

Administrative Decisions (including refusal)

Article 8:3 GALA

One of the requirements to invoke legal protection in administrative law:

art. 1:2-1 GALA 'Interested party' means a person whose interest is directly affected by an order.

Two variants:

1. Directly interested party

2. Interested third party

Directly interested party:

Person (object) to whom order is addressed a.k.a. addressee

Person (object) who is directly affected: applicant or receiver of right/duty or confronted with a change of legal status.

1. Own interest - not caretaker
2. Personal interest - distinguishable from mass
3. Objective interest - not merely emotional
4. Current interest - not dependent on future event
5. Directly affected - causal connection between decision and interest (no intermediate link)

In other words.

Concern should be personal (distinguishable from the mass), objective (not merely emotional), current (not dependent on a future event), causal connection (directly linked to decision)

Notice of objection procedure - Article 8:1 and 7:1 GALA

Characteristics:

- Reconsideration of original decision by administrative authority, usually the original decision-maker

- Free of charge!

- Test = ex nunc (now), in court: ex tunc (then), thus: possibility of introducing new insights after decision

- Full reconsideration: both legal and functional aspects

Procedure aimed to be easily accessible check Chapter 6 & 7 GALA:

name + address, date, description order, grounds (6:5)

deadline in principle 6 weeks after decision (6:7)

duty to transmit to competent authority (6:15)

opportunity to be heard at hearing (7:2)

Notice of Objection Procedure (administrative authority)

If the applicant does not agree with the outcome he can then:

1. Address the District Court, then
2. Council of State, then
3. Central Court of Appeal, then
4. Trade and Industry Court

▪ Non-Competent = Other court jurisdiction

▪ Non-Admissible = Appeal filed too late or not an interested party

▪ Unfounded = Plaintiff loses

▪ Well-founded = Authority loses

▪ Judge has two possibilities when annulling
• Judge can send the case back to the administrative authority
• Or the judge can replace the decision himself