Proporcingumo peržiūra Nyderlandų administracinėje teisėje: kas pasikeitė?

Since 2 February 2022, the Dutch administrative courts review government decisions much more closely for proportionality. A decision that is formally correct can still be annulled if its consequences for you are disproportionate to its aim (Article 3:4(2) of the General Administrative Law Act, Awb). The main exception: a formal Act of Parliament itself cannot be tested by the court, and the room to set aside its application in an individual case is narrow.

This matters if you face an order subject to a penalty payment, the closure of your home or business premises, an administracinė bauda or the withdrawal of a permit. Below we explain the rule, the case law since 2022 and how to use it in an objection under administracinė teisė.

What does the principle of proportionality require?

The adverse consequences of a decision may not be disproportionate to the aims the decision serves. That is the literal standard of Article 3:4(2) Awb; Article 3:4(1) Awb first requires the administrative body to weigh all interests directly involved.

The principle does not mean that every adverse consequence must disappear. The government may pursue its aim, for example tackling drug dealing or illegal building, but it may not use means that hurt you more than necessary.

The same idea applies to policy rules. Under Article 4:84 Awb, the administrative body follows its policy rule, unless special circumstances would make the result for you disproportionate to the aims of that rule. This is the escape valve when a fixed policy produces an unfair outcome in your case.

How did the courts review proportionality before 2022?

Before 2022 the courts used a deferential arbitrariness test (willekeurtoets). The court only intervened if no reasonable administrative body could have taken the decision after weighing the interests.

In practice that threshold was very high. Citizens and companies hit hard by a decision usually lost, even when their personal situation was serious.

What changed with the rulings of 2 February 2022?

On 2 February 2022 the Administrative Jurisdiction Division of the Council of State (Raad van State) dropped the arbitrariness test as the starting point. In the leading case, the closure of a family home in Harderwijk under Article 13b of the Opium Act, the Division held that the mayor had paid insufficient attention to the interests of the tenant and his family (ECLI:NL:RVS:2022:285).

Where proportionality is disputed, the court now reviews the weighing of interests directly against Article 3:4(2) Awb. It can look at three points:

• Suitability: is the measure suitable to achieve the aim?
• Necessity: could a less far-reaching measure have achieved the same aim?
• Balance: are the consequences, all things considered, in reasonable proportion to the aim?

These three points are not a fixed three-step test in every case. The intensity of the review works on a sliding scale: the heavier your interests and the more a decision affects fundamental rights, such as the right to a home, the stricter the court reviews it.

Can the court also test an Act of Parliament or a bound decision?

Only to a limited extent. Article 120 of the Dutch Constitution forbids the courts to review the constitutionality of Acts of Parliament, and that ban still stands.

On 1 March 2023 a grand chamber of the Council of State ruled on childcare benefit (kinderopvangtoeslag) cases. The court may set aside the application of a statutory provision in an individual case only if special circumstances exist that the legislature did not take into account. In that case it found no such circumstances: the three-month limit on retroactive applications in the Childcare Act was applied in full (ECLI:NL:RVS:2023:772).

For bound decisions, where the administrative body has no discretion, the Trade and Industry Appeals Tribunal (CBb) has accepted that proportionality can still play a role. Because the general weighing of interests is already contained in the regulation, the review focuses on whether applying it in your individual case works out unreasonably harshly. A full new weighing of interests is not available.

Is new legislation on the way?

Yes, but it is not yet law. A bill to strengthen the safeguarding function of the Awb (Wet versterking waarborgfunctie Awb) aims, among other things, to broaden the proportionality standard in Article 3:4(2) Awb and to add procedural safeguards for citizens.

Separately, the government intends to amend Article 120 of the Constitution so that courts can test Acts of Parliament against certain fundamental rights. Until both changes are adopted and in force, the case law described above determines your legal position.

Where does the proportionality review make a difference?

Mainly in decisions with serious consequences for your home, business or income. Typical examples are:

• an order subject to a penalty payment (last onder dwangsom) or an order for administracinis vykdymas (last onder bestuursdwang);
• the closure of a home or business premises by the mayor, for example under Article 13b of the Opium Act;
• administracinė bauda;
• the refusal or withdrawal of a permit;
• recovery and revision decisions on benefits or allowances.

Punitive sanctions such as fines were always reviewed intensively. The 2022 case law means that remedial measures, such as an order subject to a penalty payment or a recovery decision, are now also reviewed more closely when proportionality is disputed.

How do you challenge a disproportionate decision?

You first file an objection (bezwaar) with the administrative body that took the decision, within six weeks (Article 6:7 Awb). The period starts on the day after the decision was announced (Article 6:8 Awb).

If the objection is rejected, you can appeal to the administrative law section of the district court (rechtbank), again within six weeks. Further appeal usually lies with the Council of State, the Central Appeals Tribunal (CRvB) or the CBb, depending on the subject.

An objection does not suspend the decision (Article 6:16 Awb). If, for example, your premises will be closed next week, you can ask the preliminary relief judge (voorzieningenrechter) for an interim measure (voorlopige voorziening) under Article 8:81 Awb when the matter is urgent.

The court decides on the basis of the notice of appeal, the documents and the hearing (Article 8:69 Awb), and it reviews proportionality in line with the grounds you put forward. A general complaint that a decision is “too strict” is therefore not enough: you must show concretely why the consequences are disproportionate in your case.

What should you check when you receive a government decision?

Check these points within the first days, because the six-week objection period runs from the day after announcement.

• The date on which the decision was sent or published, and the resulting last day for objection.
• The legal basis: does the body have discretion, does it apply a policy rule (Article 4:84 Awb), or is it a bound decision?
• Whether the decision mentions your personal circumstances, such as children, health, income or the continuity of your business.
• Whether a less far-reaching measure was available, such as a warning, a shorter closure or a longer compliance period.
• Whether you need an interim measure because the decision takes effect before the objection is decided.
• Which documents (medical statements, financial figures, leases) prove the consequences for you.

What can we do for you with a proportionality challenge?

Mūsų administracinė teisė team assists companies and individuals in objection and appeal proceedings against Dutch government bodies.

• We review the decision and calculate the six-week objection deadline.
• We file a pro forma objection to secure the deadline and then supplement the grounds.
• We build the proportionality argument: suitability, necessity and balance, supported by your documents.
• We request an interim measure from the preliminary relief judge when the decision takes effect immediately.
• We represent you at the objection hearing and in appeal before the district court and the Council of State.

Santrauka

• Article 3:4(2) Awb forbids decisions whose adverse consequences are disproportionate to their aim.
• Since 2 February 2022 (ECLI:NL:RVS:2022:285) the courts review proportionality on a sliding scale of suitability, necessity and balance instead of the old arbitrariness test.
• Acts of Parliament cannot be tested against the Constitution (Article 120); setting aside their application requires special circumstances.
• Pending legislation may strengthen the principle further, but is not yet in force.
• Object within six weeks and substantiate the disproportionality with concrete facts.

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