Objection Procedure against Dutch Decision

Dutch administrative law (bestuursrecht) offers legal protection against (unfair) government decisions (besluiten) or law enforcement in the Netherlands. As a Dutch administrative lawyer I litigate on decisions of government bodies.

Netherlands lawyer administrative law procedures (640x434)

Objection-procedure in the Netherlands

The objection procedure (bezwaarschriftprocedure) at the relevant Dutch administrative body (the municipality or other government institution) starts once the notice of objection is submitted in written form. A Dutch administrative lawyer can lodge the complaint on your behalf. The notice of objection needs to be submitted within the 6 week time limit, starting from the date of the decision. In the notice of appeal, the reason for appeal has to be clarified. The decision to which you are objecting is to be clearly noted and enclosed. Moreover, the interested party needs to express why he or she is an interested party. The Dutch General Administrative Law Act applies to the procedure.

Pro-forma notice of objection against administrative decision

Sometimes it may be sufficient to submit a pro-forma objection against the Dutch decision. This entails that the objection is submitted within the time limit but the grounds for appeal are submitted later. This is useful when the time limit has almost expired leaving little time to draft all ground for your objection. With a pro-forma appeal the appeal is secured, but this is option is not available in all procedures. If a pro-forma notice of objection is submitted, the administrative body will usually assign a new time limit wherein the full appeal has to be submitted.

Skipping the Netherlands objection-procedure

It is possible to skip the skip the objection-procedure in order to lodge an appeal directly with te Dutch Administrative Court. This can be done by submitting a request at the administrative body responsible for the decision. This is useful if you suspect that the notice of objection will not be of any effect at the administrative body. In this case, it may be more efficient to present your appeal to a professional judge. Discuss this with a lawyer. The government body is not under a durty to allow the request.

Administrative Procedure (Bezwaarschriftencommissie)

Generally, the bezwaarschriftencommissie (objection committee) produces an opinion about the appeal. This committee is also referred to as the interne commissie (internal committee) or the ambtelijke commission (civil servant committee). Only at the administrative court will an independent judge be present, at an interne commissie or ambtelijke commissie only civil servants of the municipality will consider the objection. This is usually a disadvantage since civil servants are not independent. This can be a reason to decide to skip the objection phase and appeal directly to a court with the help of a lawyer.

Dutch Summary Proceedings for provision relief

In urgent cases it may be necessary to file for provisional relief with the Provisonal judge of the Dutch Administrative Court. Usually the provisonal relief means that the administrative decision is suspended during the administrative procedure. For example; if a building permit is granted then a neighbour can request the provisional judge to suspend the building permit (and stop building activity) during the procedure.

Hearing following objection against administrative decision

Virtually always a hearing will take place wherein the grounds for appeal are explained. Only if the appeal is clearly inadmissible will the court dismiss the appeal without a hearing. The appellant, his or her lawyer or an authorised representative are allowed to explain the grounds for the objection. In the hearing, a person on behalf of the administrative body will appear to provide a defence (usually the civil servant who took the decision). Generally, a defence is prepared beforehand and revealed in the hearing. The members of the committee are allowed to ask questions and viewpoints can be rebutted.

Dutch Objection-procedure lawyer

You can submit your notice of objection yourself or you could decide to seek the help of a Dutch lawyer who can submit the objection for you. This is preferable if the issue is legally complex. Some examples of legally complex issues are: a zoning plan or catering regulations, Bibob cases, issues with permits and cases dealing with law enforcements (fine or an administrative order). Furthermore, a lawyer is also able to question the general principles of good governance and proper policy, like prohibition of arbitrariness, the principle of legal equality, the principle of legitimate expectations, improper purpose, fair play, duty of administrative care, equality of arms, marginal review, etc.

Decision period in the objection procedure

The objection needs to be addressed by the Dutch administrative body within the 12 week time limit. This can be delayed once by the administrative body. If within the time limit no decision is made by the court, it is possible to issue a notice of default. A notice of default will give the court a further 2 weeks to decide. If within these 2 weeks still no decision is made, appeal can be made to court on the basis of a fictitious rejection.

The Decision following the objection

On the basis of the advice of the committee, the administrative body will reach a decision. The advice of the committee is usually adapted but this is not always the case. If the advice is adapted the decision will be short and will refer to the advice of the committee which is adapted in its entirety. One clause of the decision will concern itself with the available remedies, in which it will state that the party can appeal within 6 weeks with the Dutch Administrative Court. The decision by the administrative body in response to the objection puts an end to the objection procedure.

Appeal against the decision regarding the objection

The objection procedure at e.g. the municipality ends with the decision by this administrative body in response to the objection. This decision is a decision within meaning of the word in law. This entails that an appeal is permitted given that it is submitted within the time limit of 6 weeks. The Dutch administrative appeal-procedure is initiated with a notice of appeal, this can be done with or without the help of a lawyer. I frequently handle appeal-procedures with the Dutch Administrative Court. One must be aware and cautious of the legal aspects of an appeal-procedure, if complex, it would be sensible to ask a lawyer to support you. With the Dutch Court, the department of administrative law will handle the appeal. A complex case is considered by three judges.

The Dutch appeal court in administrative law procedure

Only in the appeal-procedure will a ‘real’ judge review your case. This is a convincing reason to decide to appeal. Experience shows that many objections are dismissed in the objection-procedure. The committee mainly exists of civil servants from the same administrative body, for instance a jurist from a department of the municipality. An administrative judge is far more critical when considering your objections against the decision of the government. It is possible to request the administrative body dealing with your objection to skip the objection-procedure in order to obtain access to the ability to appeal (art. 7:1a AWB). My experience is that this request is usually dismissed.

Notice of appeal against the administrative decision

An appeal must be submitted to the court within the time limit of 6 weeks. This happens through a notice of appeal in which the grounds for appeal are formulated. An administrative lawyer can file the appeal on your behalf. One can also lodge a pro-forma appeal: an appeal to which its grounds are added later, usually this will extend the time limit another four weeks. The defendant (the administrative body) will submit a defence which is followed by an oral hearing. It can take months before the date for the oral hearing is set. The verdict follows 6 or 8 weeks after the oral hearing of the appeal (upon which the investigation is closed by the judge).

Appeal to the ‘Raad van State’ against court decision

The administrative body and the court are able to appeal to the decision of the Court, a time limit of 6 weeks applies. The Raad van State (Council of State) is the highest possible instance of your administrative case in the Netherlands. The Administrative Disputes Divison of the Raad van State deals with administrative decision I frequently have hearings at this court. It is difficult to manage the interests of the appellant (administrative body or court) at the highest instance. I do this to the best of my ability and with complete commitment. At the Raad van State three judges will consider the case. It is without saying sensible to have a Dutch administrative lawyer represent you, because the legal questions dealt with become more complex the higher in appeal you go.

Netherlands Administrative Jurisdiction Division

The Administrative Jurisdiction Division (of the Raad van State) is the highest general administrative court in the Netherlands. Dutch public lawyers will represent clients with this Administrative Court. It hears appeals lodged by individuals or companies against administrative decisions or orders given by any municipal or other government body, like the Netherlands Gambling Authority. Administrative disputes may also arise between two Dutch public authorities, e.g. regarding a zoning plan involving connected areas of municipalities.  Decisions or orders on which the Division gives judgment concern decisions in individual cases (like refusal of a permit for planning permission or an environmental license) or orders of a general nature of Dutch government body. Civil law acts like land purchase by a municipality or service contracts entered into by a government body are not subject to revision by the Raad van State.

Assessment of procedure against Dutch government decision

As a Dutch administrative lawyer I’m familiar with all aspects of public law and relevant Dutch rules and procedures. I can evaluate your legal matter and advise you as to your best legal course of action under Dutch administrative law. This area of Dutch law also deals with administrative law enforcement, like penalties from the Municipality or Dutch authorities. Or withdrawl of a Dutch permit, or refusal of a permit in the Netherlands. When necessary I take the cases to a Dutch court and litigate on behalf of clients. Don’t hesitate to discuss your case with me.

 

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