Leiden Law Cast #4: Changes to administrative law in the Netherlands with Prof. T. Barkhuysen
Leiden Law Cast is a podcast made by Leiden Law School, Leiden University, for everyone who wants to learn more about current legal issues.
Professor Tom Barkhuysen joins Leiden Law Cast to talk about potentially major changes to administrative law in the Netherlands. Following a decision of the Supreme Court on 2 February 2022, in a case that may firmly change the interpretation of judicial review, a fresh wind is now blowing through Dutch administrative law.
Tom studied constitutional and administrative law in Maastricht and subsequently European law in Leiden. He wrote his PhD thesis at Leiden University on the requirements that European law places on domestic legal protection. He has been working at Stibbe since 1998, a law firm renowned for its expertise in the field of administrative law. In addition to this position, he is Professor of Constitutional and Administrative Law at Leiden University.
Tom takes time to explain how Dutch administrative law works in practice. An administrative authority first takes a decision. If someone disagrees with this decision, they can make an objection to the administrative authority in question. If one of the parties is not satisfied with the outcome, they can lodge an appeal with the administrative court and higher courts. An administrative authority is part of the executive power. The Netherlands has a system of power known as the Trias Politica, in which the legislature, the executive, and the judiciary are separate powers.
After this general introduction, we delve deeper into the subject of judicial review. In the Dutch legal culture, the courts are reluctant to take over the role of the legislature or the executive: these tasks are laden with political and administrative considerations. The underlying principle is that the court will only intervene if no reasonable person would have made the choice that the administrative authority did.
Principle of proportionality
Tom explains that the principle of proportionality emerged in administrative law in 1994 via the Dutch General Administrative Law Act which took effect in that year. Article 3:4, 2nd paragraph, of this Act provides that the adverse consequences of an order by an administrative authority may not be disproportionate to the purposes to be served by the order. It seemed that the Dutch administrative court had to operate a ‘light switch’ when it came to judicial review. The switch was almost always set to ‘cautious review’. Sometimes the switch was set to ‘thorough review’ – in such cases, the court also looked at the substance of the weighing of interests by the administrative authority. The ‘thorough review’ setting for the switch was reserved for special cases which involved an administrative penalty for instance.
2 February 2022, however, will go down in the books as a historic day: the highest Dutch administrative court decided to replace the light switch with a dimmer switch: it has decided to make the intensity of the review adjustable per case. Depending on the impact on and fundamental rights of the parties involved, the court can decide using a sliding scale just how probing the review will be.
When podcast hosts Irem and Hamza ask the lawyer and professor about the relationship between the child benefits affair (discussed in the first episode with Alex-Geert Castermans) and this groundbreaking decision, Tom confirms that it may have been the proverbial straw that broke the camel’s back. Nevertheless, the discussion about the intensity of review that had been heard for decades should not be played down.
'It is always different.'
Being a true lawyer, it’s not surprising that Tom is cautious when it comes to commenting on the impact of this decision: time will tell whether the administrative courts are comfortable in making use of the room that has been provided to carry out a more probing review. He believes that this will depend on the judges, but that’s something we should welcome. It helps in balancing legal protection and democracy
To close, Irem and Hamza ask for some wise words for the listeners. Tom, who he says is not an edifying man by any stretch of the imagination, quotes here the motto of Hans Stibbe, founder of the law firm of the same name: “it’s always different”. These words serve as inspiration for all, but especially lawyers. If people didn’t dare to think differently when it comes to the law, judgments like this recent one would never take place.
Listen the episode here (in Dutch):
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More Leiden Law Cast episodes:
- Leiden Law Cast #1: Child benefits scandal & compassion with Professor A.G. Castermans
- Leiden Law Cast #2: The role of the criminal defence lawyer with Dr M. Lochs
- Leiden Law Cast #3: Damaged trust in claims policy with Dr G. Kuipers
More information about Leiden Law Cast here.