question
What does Substantive Administrative Law focuses on?
answer
Administrative authorities
Orders
Enforcement and administrative sanctions
Orders
Enforcement and administrative sanctions
question
What does Procedural Administrative Law focuses on?
answer
Appealable orders
Interested party
Notice of objection procedure (preliminary procedure)
Appeal in court
Interested party
Notice of objection procedure (preliminary procedure)
Appeal in court
question
In which book can we find Dutch Administrative Law and what does it cover?
answer
❖ 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.
❖ How to dispute orders.
❖ Often combined with specific legislation.
❖ Central concepts: Authority, order, interested party 1:3 GALA and 8:1 GALA.
question
What is an administrative authority and what types of administrative authorities are there?
answer
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)
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)
question
What constitutes as an order in administrative law?
answer
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
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
question
What types of orders are there?
answer
Order of a general nature:
1. Generally Binding Regulations
2. Administrative Measures
3. Policy Rules
Orders not of a general nature.
4. Administrative Decisions
1. Generally Binding Regulations
2. Administrative Measures
3. Policy Rules
Orders not of a general nature.
4. Administrative Decisions
question
What is a Generally Binding Regulation?
answer
--> 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.
--> 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.
question
What are administrative measures?
answer
--> Effect specific as well as general
--> No independent legal character
E.g. Traffic sign
--> No independent legal character
E.g. Traffic sign
question
What are policy rules?
answer
--> 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.
--> 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.
question
What is an administrative decision?
answer
--> 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!
--> 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!
question
What types of of enforcement/administrative sanctions are there?
answer
1. Reparatory
2. Punitive
2. Punitive
question
What type of reparatory sanctions are there?
answer
1. Coercive Action
2. Coercive Penalty Payment
2. Coercive Penalty Payment
question
What is Coercive Action?
answer
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
• Instruction with threat of physical intervention and deadline
• After time limit: Costs reparation for wrongdoer
question
What is Coercive Penalty Payment?
answer
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
• 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
question
What is the only form of Punitive Sanction in Administrative Law?
answer
Administrative Fine
question
What is an Administrative Fine?
answer
▪ 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
▪ 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
question
What are Principles of Good Governance?
answer
Limits to power of public body or administrative authority and they are the substantive norms for decision-making.
question
State some Principles of Good Governance and explain them:
answer
▪ 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.
▪ 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.
question
What are the three requirements to invoke legal protection in administrative law?
answer
Three requirements:
1. Appealable order
2. Interested party
3. Preliminary procedure (administrative authority)
If requirements are met: access administrative court
1. Appealable order
2. Interested party
3. Preliminary procedure (administrative authority)
If requirements are met: access administrative court
question
Which types of orders appeals will lead to a process in the Civil Court?
answer
• Generally binding regulation
• Policy rules
• Physical action
• Private disputes
• Policy rules
• Physical action
• Private disputes
question
Which types of orders appeals will lead to a process in the Administrative Court?
answer
Administrative Measures
Administrative Decisions (including refusal)
Article 8:3 GALA
Administrative Decisions (including refusal)
Article 8:3 GALA
question
What is an interested party?
answer
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
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
question
What is a directly interested party?
answer
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.
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.
question
What are the requirements for an interested third party?
answer
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)
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)
question
What is the Preliminary Procedure - Notice of Objection Procedure? (mention its characteristics)
answer
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
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
question
What are the requirements that must be fulfilled in order to resort to the notice of objection procedure?
answer
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)
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)
question
What are the possible administrative proceedings in Administrative Law?
answer
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
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
question
What are the Possible Verdicts?
answer
▪ 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
▪ 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