The Netherlands is a strictly regulated country, and the government is part of every household, so to speak, and is the silent, and sometimes loud, partner of every entrepreneur. The government makes decisions about your interests.
Thankfully, the government's power is limited. Whereas citizens can do everything unless prohibited, administrative bodies cannot do anything unless permitted by a legal regulation. This is called the legality principle.
Every government action, not just matters of state, have strong legal aspects. For each action by an authority, a national body and lower authorities, you can wonder if their action is permitted both in terms of content and the manner in which was acted. The regulations governing this government action and its supervision make up administrative law. The foundation for administrative law is the General Administrative Law Act.
Administrative law is a peculiar part of the law. To conduct proceedings in administrative law, you are not obliged to employ a lawyer or legal expert. A citizen can do everything themselves, much like you can press a clove on a rotten tooth and not go to the dentist.
The idea was to simplify administrative law and, as such, the rules of procedure for administrative law are simple enough. However, the rules the government must adhere to, intrinsic administrative law, is highly complicated in most cases. Civil servants, sometimes legal experts themselves, also have trouble finding their way. Administrative law varies from European law to decisions by local aldermen. On top of that, there are many policy regulations set by the government itself with which they must comply. And as you know, policy changes rapidly.
Even if the Bankruptcy Act has not changed much since 1893, European law with respect to food safety, for example, can hardly be kept up with. The former Product Board Animal Feed stopped keeping a collected work of this law for the same reason.
Administrative law is one of the most specialist parts of the law. A citizen without a lawyer will in fact be in the ring as an amateur versus a professional boxer. That boxer will not always be your friend, and even if they are friendly, they are still capable of hitting hard.
Most entrepreneurs come into contact with administrative law when they need a permit, such as an environmental permit in case of construction or changes to a building.
Permits are regularly wrongly denied. It is also often the case that citizens object to or submit a opinion against a permit.
And these decisions regarding permits are legal decisions. The government must comply with exact rules in terms of the content and manner of formation. These regulations are not in place just to make matters more complex, but to ensure that decisions are made carefully and in a well-informed manner without favouritism.
It is good to have legal aid when you are objecting to a permit or are applying for one. No matter the informal appearance of your contact, any objection will mean that the decision is based on the rule of law, administrative law.
You want to be sure that these rules are taken into account and that the proceedings are conducted correctly. This is even more important on the way to court, the court of appeals or the supreme court.
Besides knowledge of the rules, knowledge of the game matters, too. This applies equally to administrative law proceedings. The legal profession is a craft: how to best present a point of view, when is it best to use the most influence?
This influence is not only used in court or any prior objection procedure. Sometimes, it may be wise to be in contact with an administrative body before an objection is submitted, or a permit is requested. After all, the administrative body must have information to make a decision and must consider all interests involved. At this stage, it is good for you to give weight to your interests and present the right information convincingly. It is important to have knowledge of administrative law to know what you will need to present and when.
Objection is not possible for some decisions. In such proceedings, the option is provided to submit an opinion after a draft decision. The government can then take the submitted opinion into account when making the final decision. When submitting an opinion, it appears to be an informal procedure: having a say. Nevertheless, note that strict rules apply here and that the same criteria used in an objection apply here!
If you wish to bring a decision before the court, then you first need to submit an objection or an opinion. View this as a ladder of legal protection, and no rung can be skipped.
The government's decision-making process is a legal process in which giving your opinion is not that relevant. The criteria for a decision and demonstrating you meet these criteria is relevant.
Administrative law is especially about terms. Every step in legal protection is bound to a specific term. If you do not object to or appeal a decision within six weeks then the opportunity is gone. The decision has taken formal legal effect and is considered to be lawful in terms of its content and formation.
A special form of administrative law is spatial planning law. The government uses this tool, and the zoning plan that is a part of it, to plan and design our country. The various functions are distributed in such a way that everyone experiences as little nuisance and is in as little danger as possible: no nuclear power plant in a neighbourhood, a good distribution of nature and living space. Spatial planning determines what can take place in a specific place. Determining zoning plans, making decisions about exemptions and other aspects of spatial planning law are complicated procedures. On the one hand, political decisions play a part, but there are also strict regulations in place with respect to nature, safety and the environment.
Even though zoning plans can be altered, citizens must be able to derive some level of certainty from them. Hence, it is possible to claim loss resulting from government planning decisions if a situation deteriorates.
Where the government tries to ensure that citizens and companies do not get in each other's way by means of a sensible distribution of activities in an area, they attempt to regulate activities through environmental law with the same goal. Instead of increasing distance, limiting an activity will help where increasing distance is impossible or ineffectual.
In addition to setting rules, the government also issues subsidies by which the government stimulates desirable behaviour. Condition are often linked to subsidies, and naturally the appropriate expenditure of subsidies is checked. It often concerns a three-stage rocket: the approval of subsidy, determining advances, and finally (or on an annual basis) an inspection of whether or not all the conditions have been met followed by a settlement.
Many organisations depend on subsidies. In times of cutbacks and termination of subsidies there are harsh negotiations regarding contributing to the costs of reorganisation and sometimes about the continuation of the subsidy. Here, too, there is legal protection against decisions made by the government and it is even possible to successfully invoke this protection for a subsidy decision.
Another time citizens come into contact with the government is when rules are broken in their environment and the government asks for action, or when the government comes to check compliance with permit regulations or other imposed requirements: administrative supervision.
Supervisory bodies have access to every company and can request all necessary information as well as access and take any administration. There does not need to be a serious suspicion of a breach in regulations. Failing to cooperate is liable to punishment.
Once the authorities are of the opinion that they have identified a breach, you will have the chance to react to any intended enforcement. This could include imposing an order subject to a penalty, imposing an order under police enforcement, or an administrative fine. Permits or acknowledgements can also be revoked.
An order subject to a penalty means that the government wants to make the citizen do something or prohibit them from doing something for which a sum is owed if the citizen does not cooperate. The order subject to administrative enforcement goes one step further: the government will take action themselves and recoup the costs of action from the party in breach. This could entail demolishing illegal constructions, cleaning up the consequences of an environmental offence or closing a company that does not have a permit.
These are decisions the future of a company may depend on, or that may result in heavy costs for a citizen.
The government can, legislation permitting, also opt to impose a punishment through administrative law instead of criminal law. An administrative penalty could be very high. You can also go to court in case you object. A benefit of an administrative penalty is that there will not be a criminal record. However, this does not mean there will be no consequences. Any acknowledgements and certifications, such as those required for the execution of soil remediation, may be revoked due to involvement in a breach.
Another consequence of a breach can be that a permit is revoked as a measure to prevent any repeats and as a punishment. One trend in this is directors' and officers' liability. Directors and/or managers are held personally liable to an increasing extent.
Administrative law is about intrinsic regulations that differ per topic, and about rules of procedure. One part of this is about the formation of a decision, and will be the same for all decisions. The General Administrative Law Act assumes that a decision has formed in the correct manner.
The government must collect all relevant information. All facts and interests must be weighed against each other and the decision must be well-motivated.
Moreover, general principles of proper administration play a part; principles that are not always recorded in legislation. Based on the principle of equality, equal cases must be treated equally. A hindering factor is that there are often differences on a case by case basis, meaning that invoking the principle of equality is often unsuccessful.
The principle of legitimate expectations assumes that a promise by the government must offer a level of surety. It is important in this case that the promise must come from an authorised administrative body, whereas citizens usually only have contact with a civil servant meaning that invoking the principle of legitimate expectations is usually not successful. Furthermore, the principle of legitimate expectations does not apply if it is in conflict with the interests of other citizens. In such a case, at most damage can be claimed caused by acting based on the promise of the authorised body.
Government decisions or actions can also cause damage. Normally, there is more than enough time to consider an action after an unfortunate incident. Claims for compensation lapse very slowly. However, this is not the case for liability due to a wrongful decision. After a decision, there will be a six-week period to object or appeal. If a timely objection is not made, then the opportunity to act against the decision lapses. If no objection or appeal is made against a decision, then the decision will be take legal effect. It is then considered to be lawful in both its formation and its content. After that, no matter the size of any errors or any consequences resulting from it, there is no unlawful act, and thus, no grounds for compensation. In fact, the period of limitation is six weeks.
Thankfully it is possible in most cases to make a pro forma objection: a letter can be sent that briefly states that an objection is made. The grounds for the objection can then be submitted at a later time, but the period within which objection needs to be made has then at least been safeguarded.
If a decision is unlawful, then there will only be a chance for compensation of damage if another decision would have been made lawfully that would have resulted in the same consequences. Winning proceedings does not always entitle one to any compensation.
The summarised proceedings under administrative law are as follows.
After preparations, the administrative body will make a decision. Sometimes the preparatory phase is completed by means of a formal procedure. In that case, the decision is preceded by a draft decision. A citizen can submit an opinion against the draft decision.
In general, it is possible to object to the decision by submitting an objection. The objection must be submitted to the body that made the decision. But: if there was a draft decision, then an appeal must be filed to the court.
A citizen can appeal a decision made by the administrative body by submitting an appeal to the court.
The (draft) decision must always state how steps can be taken against the decision. Subsequently, if anyone disagrees with the court ruling, it is possible to appeal to a higher court. However, this is not always the case; some decisions require submitting an appeal directly to the highest court, the Council of State, the Central Council or the Central Appeals Tribunal, or the Trade and Industry Appeals Tribunal.
Citizens will be heard in every phase. It is wise to have your story on paper in advance, the so-called memorandum of oral arguments. The assistance of a lawyer can be of use here. It is advised to think properly about this memorandum and to not make it too long.
The citizen will not be charged with payment of costs of the proceedings unless they willingly and knowingly abuse their right to appeal knowing that they are unable to achieve their goal. The same applies to a legal entity. However, the government must pay if they lose. The costs of the proceedings are not the true costs, but a sum determined by law that is so low that professional legal aid can never be paid with it. The real costs of the proceedings are always higher.
Administrative law is complicated and often paired with major interests. Seek out expert help if you are confronted with it!
Administrative law often determines whether or not you can run a business. It is not about a single deal (as it is with contracts), but your entire livelihood. It look as if the government is engaging in conversation with you, but you are actually in the middle of a legal process. It is wise to seek out expert aid. You are looking for experts with respect to your books or vehicle pool maintenance. For legal questions, contact JPR Advocaten.
Administrative law is a different beast requiring expert knowledge. Major interests are involved. Use a law firm that has administrative experts. Together with you, they can assess how best handle a matter, prepare you and coach you so you can handle the sessions yourself if you wish. But be sure to seek expert guidance!