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Chronicle 1999, Administrative law / Droit administratif

A.J. Bok

E-mail: a.bok@law.uu.nl

Dr. Arie Jansse Bok is lecturer in constitutional and administrative law at the Utrecht University, The Netherlands.

This Chronicle has been published in: European Review of Public Law / Revue Européenne de Droit Public, London 2000, vol. 12.1, p. 193-214.

In 1994, in the Netherlands a number of important rules of administrative law have been codified in the General Administrative Law Act. This contribution discusses the draft of the so called Fourth Part of the General Act which appeared in 1999 and contains additional provisions on: publicity of administration, attribution of decision-making powers (especially to civil servants) and financial debts under administrative law. Most important issue of the Fourth Part is the administrative enforcement. In this field, in addition to the already existing provisions on administrative supervision, enforced execution and administrative penalties, a number of general provisions on administrative enforcement and a regulation of administrative fines are provided for.

1 Introduction

This Chronicle aims at informing the reader about the draft of so called Fourth Part of the Dutch General Administrative Law Act, which appeared in 1999.

In the Netherlands, in 1994, a number of important provisions of administrative law have been codified in the General Administrative Law Act (in Dutch: Algemene wet bestuursrecht, abbreviated further on as: Awb). [1] The Awb, however, was not established as a whole in one time. The Act is being established in so called `Parts'. The profit of such legislation divided in Parts is that the legislative process remains under control; realizing a complete codification of administrative law in one time would take too long and could even jeopardize the chances of realization as such. [2]

Thus, in 1994 the First and the Second Part of the Awb were established, after which the Third Part of the Awb came into entry in 1998. In september 1999 the so called Scheltema-Committee published a pre-draft of the Fourth Part of the Awb. [3]

Before discussing the contents of this Fourth Part, it may be useful to give the reader an overview of the current chapters of the Awb; in this way one gets an impression of the contents of the Awb as so far and also an insight in the place of the additional provisions of the Fourth Part in the Awb as a whole. The Awb at the moment consists of the following chapters:

  1.    Introductory provisions
  2.    Dealings between citizens and administrative bodies
  3.    General provisions on administrative decisions
  4.    Special provisions on administrative decisions
  5.    Enforcement
  6.    General provisions on objection and appeal
  7.    Special provisions on objection and administrative appeal
  8.    Special provisions on appeal to the courts
  9.    Complaint procedures
  10.    Provisions on administrative bodies
  11.    Final provisions [4]

In the draft of the Fourth Part Awb, in addition to the already existing provisions of the Act, the following issues are regulated:

  1.    The provisions on the publicity of administration which were laid down in 1980 in a separate Publicity of Administration Act, are being `transferred' to and incorporated in chapter 2 of the Awb, which already regulates the dealings between citizens and the administration in general.
  2.    In chapter 10 of the Awb which since 1998 contains provisions on mandate and delegation of decision-making powers, also some provisions about the attribution of such powers - especially to civil servants - are provided for.
  3.    In a new section of chapter 4 (Special provisions on administrative decisions) a regulation is provided about financial debts under administrative law.
  4.    The most important issue of the Fourth Part concerns the administrative enforcement. In 1998, in chapter 5 of the Awb, already provisions were laid down on administrative supervision, enforced execution and administrative penalties. These provisions are added with a number of general provisions on administrative enforcement and a regulation of administrative fines.

The Fourth Part of the Awb is only in the phase of a pre-draft. Submitting of the concerning bill to Parliament is to be expected in 2000/2001. The coming into entry of the Fourth Part - after parliamentary decision - is foreseen not earlier than in some years. [5] Is it, therefore, useful to discuss the provisions of the Fourth Part already now in this Review? The answer is affirmative, for one part because the Fourth Part Awb codifies, in many respects, already existing special legislation and case-law [6], and for another part because in Dutch doctrine, especially about administrative enforcement and administrative fines, already for years an active discussion is going on. Although the provisions of the Fourth Part will only come into entry after some years - and may, of course, be amended in detail during the legislative process - they nevertheless reflect a number of current themes in Dutch administrative law, reason to discuss these provisions already at this moment in this Review.

2 Publicity of administration

An open and transparent administration is not only dependent on orderly administrative decision-making procedures and the possibility to lodge objection or appeal against administrative decisions. [7] Also the publicity of documents which are under the administration is a contribution in this field. By means of this publicity the citizen can know documents which affect his legal interests or which interest him in other ways, whilst also a public control on the administration - especially by the press - is made possible.

As in other countries [8] also the Dutch Legislative had felt already earlier the need to establish rules about the publicity of administration. For that purpose, in 1980 the Publicity of Administration Act came into entry. [9] Publicity of administration is meanwhile, in Dutch opinion, a part of general administrative law and should - now the Algemene wet bestuursrecht has been established - preferably be incorporated in this Act, rather than a regulation by separate Act. For this reason the Fourth Part of the Awb transfers the provisions of the Publicity of Administration Act to chapter 2 of the Awb. [10] Apart from some technical adjustments, the contents of the Publicity of Administration Act are left totally intact; a material change of the publicity regime is not intended with the transfer to the Awb.

On behalf of the foreign reader here a - very short - outline of the Dutch rules concerning the publicity of administration is given, under the current Publicity of Administration Act and in the future under the Awb. A distinction is made between two categories of publicity: active and passive.

What concerns active publicity, an administrative body is obliged to give information on its own initiative about its policies, the preparation and the implementation thereof implied, as soon as this is in the interest of a good and democratic administrative process. The administrative body sees to it that the information is provided in a comprehensible form, in such a way that interested parties and citizens are being reached as much as possible and at such moments that they can make known their views to the administrative body in due time. [11]

Passive publicity is exercised, when the citizen lodges a request for information laid down in documents which are under the administrative body. The main rule is here that all documents, being under the administration, are freely accessible and are, therefore, made public on such a request. There are, however, exception grounds: the documents are for example not made public if the unity of the Crown, the safety of the State or the confidentiality of company-secrets would be endangered, or if the interest of publicity does not outweigh the interest of protecting privacy-sensible data. If the document has been made up on behalf of internal deliberations, the personal policy views of the administrators or civil servants concerned are not made public, or only in a form which is not reducible to individual persons. Publicity of a document occurs by providing copy of it, or by granting access to the document, giving an excerpt or a summary of it, or by providing statements about its contents, all to the decision of the administrative body. [12]

The decision to make public a document or not, and the decision in which way the information is made available, are regarded to be administrative decisions which can be appealed to at the administrative courts.

3 Attribution of decision-making powers, especially to civil servants

In traditional administrative law only administrative bodies have the power to make decisions. As a result of the increasing number of administrative decisions to be made it is, however, physically no longer possible for administrative bodies to make all decisions themselves. Apart from that, there is nowadays also often the desire, from a point of view of differentiating and spreading administrative duties, to confine decision-making powers to other institutions than `regular' administrative bodies. [13] For this purpose, in 1998 provisions were contained in chapter 10 Awb on mandate and delegation of decision-making powers.

In the case of mandate the decision is taken, on behalf and under the responsibility of the administrative body, by a representative. In many cases this will be a civil servant, belonging to the organization of the administrative body. The Awb, however, also provides the possibility of mandate to natural or legal persons which are not subordinated to the administrative body. [14] In the case of delegation, there is a displacement of the decision-making power: the power is further on exercised by the delegate, on his own account and responsibility. In view of this more far-reaching effect the Awb always requires a statutory authorization for the latter figure. [15]

Mandate and delegation are logically preceded by attribution, i.e. the original conferring of the decision-making power. Under the rule of law, such an attribution can only happen by or pursuant to an Act of Parliament (principle of legality: no administrative powers without a statutory basis). This is, therefore, also in the Netherlands the constitutional principle, be it that this principle is nowhere laid down in written form (for example in the Constitution or the Awb). [16]

In some cases, an Act of Parliament does not attribute a decision-making power to an administrative body, but to a civil servant (or a category of civil servants). Examples are the power to impose tax assessments which is conferred to the Tax inspectors, the power of the Inspectors for urban planning to oppose against draft urban plans, or the powers of the Labour inspectors concerning working conditions. A current example are also the powers according to the new Companies Competition Act of 1998, which to a great extent are laid down in the hands of the Director-General of the so called Dutch Competition Authority. The reason that in these cases the decision-making power is not conferred to an administrative body, but to a civil servant, is due to the specific expertise of the civil servants concerned, or the desire to bring the exercise of the powers in question out of the scope of politics. [17] Therefore, the traditional approach - attribution of the power to an administrative body; exercise by way of mandate by the civil servant - is regarded to be less suitable in these cases.

A difficult question is, which consequences the attribution of decision-making powers to civil servants has for the position of the administrative body - often a Minister - in whose organization these civil servants are working. [18] Does the attribution mean that the administrative body can no longer give instructions to the civil servant, with regard to the attributed power? That would also mean that the administrative body cannot be held politically responsible any more for the acts of the civil servant, although belonging to its organization. [19] The civil servant would then be some sort of a `free moving body' within the public administration which, from a point of view of democratic control, is not a very desirable perspective.

Dutch doctrine, therefore, is in majority of the opinion that, also in the case of attribution of decision-making powers to civil servants, the hierarchical relation between the administrative body and the civil servant is not broken up. Thus, also with regard to such powers, the administrative body is deemed to be able to give general and specific instructions - for which it can, at its turn, be held politically responsible. In view of democratic control this result is much more satisfying - be it that in this way little is left of the independence with which the civil servant was supposed - pursuant to the attribution - to exercise his powers.

The Fourth Part of the Awb, meanwhile, follows the current doctrinal opinion and stipulates that, if a decision-making power has been conferred to a person who works under the responsibility of an administrative body, the administrative body can give general and specific instructions concerning the exercise of this power. Furthermore it is stipulated that the person to whom the power is conferred shall provide the administrative body, on its request, with information about the exercise of the power. [20]

Thus, also under the Fourth Part of the Awb, the hierarchical subordination of a civil servant to whom decision-making power is attributed, is maintained. Must one be satisfied with this result? Strictly spoken not, because the Awb still accepts the ambivalent figure of attribution of decision-making powers to civil servants as such. This figure must be called therefore ambivalent and half-hearted because, basicly, it tries to combine two things which are irreconcilable: On the one hand one intends the civil servant to exercise the power with a certain degree of independence, but on the other hand one desires political responsibility for this, with a corresponding instruction power of the administrative body. These things cannot be realized at the same time; one has to choose for the one or for the other: tertium non datur. If one really wants an independent exercise of decision-making powers, it is much more indicated to confer these powers to an independent agency. Then a real choice is made, be it under the consequence that the higher administrative body - in most cases a Minister - cannot give specific instructions any more to the agency. [21]

In my personal opinion, therefore, the Legislative should refrain himself from conferring decision-making powers to civil servants. Where in reality this choice has been made by the Legislative in some cases, it is at any rate to be supported that the Fourth Part of the Awb makes it clear that also in these cases the administrative body remains responsible and can give specific instructions. An attribution to a civil servant under such conditions is, meanwhile, somewhat `watered-down' and cannot, frankly, be called a `genuine' attribution any more.

4 Financial debts under administrative law

It often happens that a citizen owns a certain financial sum to the administration. The best-known examples are payable taxes and contributions. Another example are the costs which the administration has made in the sphere of enforcement; these costs - especially those of enforced execution - are in principle payable by the offender and therefore bring about a financial claim of the administration. Such a claim also exists, if an administrative penalty or an administrative fine has been imposed.

On the other hand, also the administration can own money to the citizen. Think of the granting of allowances or subsidies, or the case that the citizen has paid too many taxes or contributions, so that he has a claim towards the administration on the ground of undue payment.

For both categories of debts - summarized under the term: `financial debts under administrative law' - the Fourth Part of the Awb contains a regulation. There is need for such a regulation, because as so far it was not very clear whether private or respectively public law is applicable to these debts. In principle also financial debts between the citizen and the administration are under the scope of the Civil Code; on the other hand, the decisions of the administration which are at the basis of these debts - tax assessments, enforcement decisions, allowance and subsidy decisions etc. - are under the jurisdiction of the administrative courts. These courts have also enlarged their jurisdiction by regarding re-claims of the administration as appealable administrative decisions. [22]

The Fourth Part of the Awb proposes a regulation in which the applicability of administrative law and the jurisdiction of the administrative courts is the principle; in some fields however - especially concerning the collection of the debt - an explicit referral is made to private law, whilst in other fields private law is declared applicable mutatis mutandis.

What concerns the originating of the debt, the main provision is that the obligation of a citizen to pay a financial sum to the administration - but in reverse also the obligation of the administration to pay a sum to the citizen - is always established by means of an administrative decision which can be appealed to at the administrative courts. An exception is made for the case that the debt directly originates on the ground of statutory provisions (for example the payability of VAT). [23]

As to the payment of the debt, the Fourth Part prescribes a uniform payment period of six weeks - both for the citizen and the administration - which meanwhile can be deviated from by statutory provision or an administrative decision. If payment does not occur within this period, legal interests are automatically due. The sum of the legal interests, however, has to be assessed by the administrative body by means of a separate - and again: appealable - decision. [24]

Financial claims of the administration towards the citizen - but also claims of the citizen towards the administration - prescribe, according to the Fourth Part Awb, five years after the moment of extinction of the payment period; in some cases this prescription period can be stopped or extended. [25]

Special statutory provisions can provide the administration with the power to collect a debt of the citizen by means of a unilateral writ of execution. [26] Such a writ is in principle not earlier issued, than after summoning the debtor to pay within two weeks. The citizen can oppose against the writ at the civil courts, by means of a so called execution litigation. The choice for the civil courts, rather than the administrative courts, is made here because private law offers of old an elaborated set of instruments for the collection of debts; a procedure at the administrative courts was regarded less suitable in this field. If the administration does not have the power to issue a writ of execution, it will have to collect the debt by means of the normal subpoena procedure at the civil courts; the same is the case if a citizen wants to collect a financial claim on the administration.

5 General provisions on administrative enforcement

As said before, chapter 5 Awb contains at the moment provisions on administrative supervision, enforced execution and administrative penalties. The Fourth Part Awb adds to these a separate regulation of administrative fines (see par. 6 of this contribution). [27]

Apart from this, also the need was felt to establish some general provisions on administrative enforcement in the Awb. These general provisions are required, considering that the employment of sanctions by the administration is a far-reaching power towards the citizen which must be provided with various legal guarantees. This notion is not only derived from national Dutch law, but also from the case-law concerning the European Convention on Human Rights. [28]

The Fourth Part Awb contains, with regard to the general provisions on administrative enforcement, firstly some definition provisions. Thus the notion of offence is described as: `a conduct which is in breach of obligations laid down by or pursuant to any statutory provision'. [29] In this definition the term `conduct' also implies a failing to act, whilst the term `in breach of obligations laid down by or pursuant to any statutory provision' expresses, that not only a direct breach of statutory provisions produces an offence, but also the breach of provisions of a lower rank, pursuant to the statute concerned, or the breach of prescriptions which are a part of an administrative permit or exemption, based on a statutory provision.

An offender is `the one who commits or participates in the offence', whilst for offences committed by legal persons also as an offender is regarded `the one who gave the order to the offence or was actually in charge of the offence'. [30] These wordings show that the Fourth Part of the Awb uses a so called functional notion of offender, which not only comprises the person who has physically committed the offence, but also the (natural or legal) person who socially can be held responsible for this. As a result of this, in the case of offences committed by companies, often the company itself, as a legal person, or the direction of the company can be regarded as the offender, although the offence itself was physically committed by an employee.

Furthermore the Fourth Part Awb distinguishes between administrative sanctions, reparatory sanctions and punitive sanctions. [31] `Administrative sanctions' is the general notion which serves as a demarcation towards penal sanctions. [32] Within the notion of administrative sanctions a further distinction is made between `reparatory sanctions', aimed at the reparation of the offence [33] and `punitive sanctions', aimed at punishment of the offender. [34] The latter distinction is of importance, because punitive sanctions must meet (even) higher standards than reparatory sanctions. See for example the nemo tenetur-principle, to be discussed hereunder.

The Fourth Part of the Awb stipulates a strict principle of legality with regard to administrative sanctions: `The power to impose an administrative sanction only exists in so far as it is conferred by or pursuant to an Act of Parliament'. [35] Administrative sanctions without a statutory basis are therefore prohibited. Also the nulla poena-principle is in force: `An administrative sanction shall only be imposed on behalf of a conduct which is in breach of obligations laid down by or pursuant to any statutory provision preceding to the conduct.' [36]

Both principles are declared applicable to all administrative sanctions, that is: not only to punitive, but also to reparatory sanctions. This can be approved, what concerns the requirement of a statutory basis: The employment of both punitive and reparatory sanctions is a far-reaching power of the administration towards the citizen (especially in view of the right of immediate execution), so that one would require a basis in statute in both cases.

The nulla poena-principle is applicable to punitive administrative sanctions, i.a. on the basis of article 7 ECHR. Whether this principle should also be fully applicable in the case of reparatory sanctions - as the Fourth Part Awb stipulates - is, however, questionable in my opinion: In modern legislation, especially in the socio-economical field, there is from time to time the need to prohibit certain acts with retrospective effect. If the administration were not able to react on offences against such prohibitions at least by means of a reparatory sanction, these prohibitions would be at risk of being illusory. If one accepts these prohibitions with retrospective effect as such, then also the possibility of reparatory sanctions with retrospective effect should be regarded as acceptable, in my opinion. [37]

With regard to punitive sanctions, the Fourth Part of the Awb imposes also the nemo tenetur-principle: `A person who can reasonably draw the conclusion from an act of an administrative body that a sanction, other than a reparatory sanction, will be imposed on him, is no longer obliged to give information about the offence, on behalf of this imposition. This shall be pointed out to the offender, before he is orally requested to give information, and in any case when he is given the opportunity to make known his views about the intention to impose the sanction.' [38]

These provisions must be read in relation to the current article 5:20 Awb, which obliges anyone to provide the full cooperation to an administrative supervisor which the latter can reasonably demand in the exercise of his powers. This obligation to cooperate with administrative supervisors can, in the case of the (intended) imposition of a punitive sanction, result in the obligation to deliver proof against one self, which is prohibited in the light of the innocence presumption and the corresponding nemo tenetur-principle, on the basis of article 6 ECHR. [39] For this reason, the Fourth Part Awb makes an exception to the obligation to cooperate, in the case of punitive sanctions, and grants the offender, from the moment that he may suspect that a sanction will be imposed on him, a right to keep silent. The corresponding obligation to give a caution (see above) is not implied by the ECHR as such, but is of course a useful complement to the right to keep silent, without which this right could turn out to be illusory. [40]

Finally, the Fourth Part Awb contains an anti-cumulation provision, in order to prevent the concurrence of several reparatory sanctions: `The administrative body shall not impose a reparatory sanction as long as another reparatory sanction on behalf of the same offence is in force.' [41] This provision prohibits, practically spoken, especially the concurrence of enforced execution and an administrative penalty, at the occasion of the same offence; such a concurrence is regarded to be a form of `bis in idem' which would lead to a disproportionably heavy sanctioning. [42]

The concurrence of a reparatory and a punitive sanction (for example enforced execution and an administrative fine) is not prohibited by the just mentioned anti-cumulation provision; in the Netherlands it is common opinion that a concurrence of such sanctions, aimed at different goals (reparation, respectively punishment) does not produce a disproportional `bis in idem'. Nor does the provision, as such, prohibit a concurrence of two punitive sanctions. [43]

6 Administrative fines

There has been much discussion about administrative fines in the Netherlands during the last few years. [44] The administrative fine especially has been paid attention to, in the light of the so called `enforcement gap'. Many offences in the Netherlands do not lead to enforcement action, which is in particular caused by the fact that often adequate instruments for a punitive administrative reaction are not available. In the absence of these, one has to lean back on penal prosecution, which is however problematic in view of the limited capacity of the penal jurisdiction and also considering that penal prosecution is an `ultimum remedium'. Therefore, in the past years the opinion has grown that there should be broader possibilities for the administration to impose administrative fines. The penal jurisdiction would be relieved by this, whilst also the compliance with regulations of public law would be improved by means of an efficient and immediate enforcement by the administration. [45]

In a number of fields of administrative law administrative fines are already existing. This is of old the case in the fields of tax-law and socio-economical law. Some years ago also a regulation of administrative fines in the field of social security has been established. Furthermore, in 1990 an important extension of the field of administrative fines took place, at the occasion of depenalizing minor traffic offences; these offenses are since also reprimanded by way of administrative fines. [46] However, general rules on the modalities under which administrative fines can be imposed were absent as so far. The Fourth Part of the Awb provides for such general rules.

The Awb does not confer the power to impose an administrative fine itself; the Act refers for this purpose to special legislation. When a special regulation has attributed the power to impose an administrative fine, the provisions of the Awb must, meanwhile, been observed in the exercise thereof.

An administrative fine is defined by the Fourth Part Awb as: `the administrative sanction consisting of an unconditional obligation to pay a financial sum, aimed at the punishment of the offender'. Not regarded as an administrative fine is `the withdrawal or modification of a claim on financial means'. [47]

Imposing an administrative fine requires a responsibility of the offender: `The administrative body shall not impose an administrative fine in so far as the offence cannot be reproached to the offender'. [48] However - according to the explanatory memorandum - in most cases the administration shall not have to prove the responsibility, but may assume this once the commitment of the offence has been established. The offender must, on the other hand, have the opportunity to deliver evidence to the contrary, on the basis of the innocence presumption of article 6 ECHR. [49] This possibility for the offender to disculpate himself is offered by the proposed provision.

In view of the innocence presumption of article 6 ECHR there is also the question, whether the lodging of objection or appeal against an administrative fine should have an automatic suspending effect, in order to prevent the offender from being obliged to pay the fine, already before the courts have decided on this. [50] From a point of view of an efficient enforcement this choice has not been made. The explanatory memorandum, however, does not exclude that special provisions can order such a suspending effect, especially if the amount of the fine is very high and the immediate collection of the fine would mean a disproportionably heavy burden for the offender. [51] Apart from this the offender can, already under the current article 8:81 Awb, request the President of the administrative court to grant a provisional remedy, consisting of the suspension of the fine, until the court has given a decision.

If, on the occasion of an offence, an administrative fine was imposed already earlier, another administrative fine may not be imposed (ne bis in idem). [52] The same principle is applicable with regard to a possible concurrence of an administrative fine and a penal prosecution: if a penal procedure has been started by the Public Prosecution, the administrative body refrains from imposing an administrative fine. Because, in the Netherlands, the Public Prosecution is free to abstain from prosecution (principle of opportunity), the administration must know whether the Public Prosecution will prosecute or not. For that purpose the administrative body must submit an offence, on behalf of which it intends to impose an administrative fine but which is also a penal offence, to the Public Prosecution. If the Public Prosecution notifies that it will not prosecute or if a reaction of the Public Prosecution is not received within thirteen weeks, the administrative body is free to impose the administrative fine. [53]

The maximum amount of an administrative fine is always to be established by an Act of Parliament. Within this statutory maximum, the amount of the administrative fine, as it is imposed actually, must also be proportional. Therefore, the Fourth Part of the Awb stipulates that the administrative body adjusts the amount of the fine to `the seriousness of the offence and the degree in which this can be reproached to the offender'. The administrative body also `takes into account, where necessary, the circumstances under which the offence has been committed'. [54] An exception is made for the case that the amount of the administrative fine is already fixed by statutory provision (which is often the case). If the amount of a fine is fixed by statute, the administrative body nevertheless imposes a lower fine, `if the offender makes it plausible that the amount of the fine is too high due to special circumstances'. [55] As such, it is to be approved that the Fourth Part of the Awb offers here a general anti-hardship clause, but it is also to be feared that justiciables will invoke this anti-hardship clause on a large scale. [56]

Dutch administrative courts review the question, whether the administration has balanced the interests of a case in a proper and proportional way, in general in a restrained manner. Should the courts review this question in a too extended way, they would be at risk to `duplicate' the administrative discretion and would - in a Dutch expression - `sit themselves on the chair of the administration'. [57] This is, however, otherwise if punitive sanctions imposed by the administration are at stake. In line with the case-law of the ECHR [58] also Dutch administrative courts review the question, whether the size of a punitive administrative sanction is proportional in respect to the seriousness of the offence, in an integral way. [59] The just mentioned provisions of the Fourth Part Awb concerning the amount of administrative fines - the anti-hardship clause included - will, therefore, be interpreted and applied by the administrative courts to a full extent.

The Fourth Part of the Awb pays in particular attention to the rights of defence, in the case of the imposition of an administrative fine. If an administrative fine is imposed or the intention thereof exists, the administrative body shall give the offender, on his request, the opportunity to examine and make copies of the data on which the imposition of the fine, respectively the intention thereof is grounded. [60]

In the case of so called major fines (higher than 340 Euro) [61] a report of the offence is always made up, which is dated and states the name of the offender, the offence as well as the breached statutory provision and, where needed, an indication of the place and time at which the offence has been committed. [62] The offender is, in the case of a major fine, also always given the opportunity to make known his views about the intention to impose the fine; the report is in that case already sent or issued to him, together with the invitation to make known his views. [63] In this way the offender is able to know all relevant data and circumstances with regard to the offence and can react on the intention to impose the administrative fine in due time - that is: preceding to the imposition itself. [64]

If a report of the offence has been made up, the administrative body decides within thirteen weeks after the date of the report about the imposition of the administrative fine. [65] This decision period is prescribed in order to prevent the offender from being in doubt too long about the question whether an administrative fine will be imposed or not. If a decision on the imposition is not given in due time, appeal against this is possible to the administrative courts. [66]

The power to impose an administrative fine expires, in the case of major fines, five years after the offence has been committed, and in the case of minor fines after two years. If an objection or appeal has been lodged against the administrative fine, the expiring period is suspended until the moment that an irrevocable decision has been given on the objection or appeal. [67]

7 Concluding remarks

One of the main purposes of the Awb, at its establishment in 1994, was to contribute to a more reciprocal legal relation between the citizen and the administration, in which both the citizen and the administration are entrusted with rights, but also with obligations. Both elements - rights and obligations - are also apparent in the Fourth Part of the Awb.

At first impression, especially the obligations of the citizen are highlighted in the Fourth Part: he must, for example, pay his debts to the administration and can be submitted to administrative enforcement, if he does not comply with regulations of public law. On the other hand, there are also strong obligations of the administration - and corresponding rights of the citizen - in these fields. Especially in the case of administrative sanctions the administration must meet high legal standards. This can be regarded as a form of increased juridification [68], but is nevertheless necessary under the rule of law, which demands that compulsory powers towards the citizen are to be exercised in a careful and proportional manner.

The Fourth Part Awb had to find, with regard to the various issues regulated in it, a balance between the necessary powers of the administration and, opposite to these, the rights of the citizen. The general impression is that it has succeeded well in this undertaking. Another question is of course, how the future provisions of the Fourth Part will work out in practice. Possibly, this question will be answered in this Review in some years.


Noten
[1] See about the codification of the general part of administrative law in the Netherlands, in the Algemene wet bestuursrecht, the Chronicle in this Review by Arnout Klap, ERPL/REDP 1994, p. 221 ff. An English text of the General Administrative Law Act is to be consulted (and can also be downloaded) at the website of the Dutch Ministry of Justice, at the address: http://www.minjust.nl/a_beleid/thema/awb/
[2] Cf. the establishing of the new Civil Code in the Netherlands which was undertaken in one time and took 45 years to complete (1947-1992). At a certain moment some scholars even proposed to stop the project, because it had already lasted too long.
[3] Voorontwerp Algemene wet bestuursrecht, Vierde tranche, The Hague 1999. The various Parts of the Awb are prepared by an semi-external Advisory Committee, chaired by Prof.dr. M. Scheltema, Governmental Commissioner for the general rules of administrative law. The products of this Committee are published by way of `pre-drafts'. Intensive comments are delivered on these drafts by scholars and other experts of administrative law. On the basis of these materials, a bill is prepared at the Ministries of Justice and of Home Affairs, which follows the normal legislative procedure.
[4] The `system' of the Awb is in a nutshell: introductory provisions (especially definition-provisions; chapter 1); general provisions on dealings between citizens and administrative bodies (chapter 2); the administrative decision-making process (chapters 3-4); administrative enforcement (chapter 5); litigious procedures: objection, administrative appeal and appeal to the administrative courts (chapters 6-8); complaint procedures (chapter 9); provisions on administrative bodies: mandate and delegation, approval and quashing by higher administrative bodies (chapter 10); final provisions (chapter 11). See for a short introduction, in English, to the Awb: J.G. Brouwer and A.E. Schilder, A survey of Dutch administrative law, Ars Aequi Libri, Nijmegen, The Netherlands, 1998, 95 pp.
[5] Expectedly not earlier than 2004, taking into account that after parliamentary decision also a certain period until coming into entry will be observed, in order to enable administrative bodies to prepare themselves to the new provisions of the Fourth Part Awb.
[6] This is especially the case with the provisions on publicity of administration and the attribution of decision-making powers and also, to a certain degree, with the provisions on administrative enforcement.
[7] See the chapters 3-4, respectively 6-8 Awb.
[8] See for example in France the Act of July 17th 1978, concerning the 'liberté d'accès aux documents administratifs'.
[9] Act of November 9th 1978, Stb. 581 (come into entry May 1st 1980), and replaced by the Act of October 31st 1991, Stb. 703 (come into entry May 1st 1992).
[10] This chapter regulates, as said before, the dealings between citizens and administrative bodies in general.
[11] Article 2.3.3.1 Fourth Part Awb.
[12] Sections 2.3.2 and 2.3.4 Fourth Part Awb.
[13] Especially in the strive for exercise of administrative duties by independent agencies or private institutions. With this, a more efficient and less politically `burdened' exercise of these duties is aimed at. See about independent agencies and privatization in the Netherlands: C.J.P. Goorden, M.M. den Boer and F.K. Bruin, Zbo's, verzelfstandiging en privatisering (`Agencies, making independent and privatizing the administration'), Consultative reports for the Dutch Association of Administrative Law, Alphen a/d Rijn 1997.
[14] Mandate to non-subordinated persons is especially used in the case of privatization. See for example the field of social security, which in the Netherlands is confined to the National Institution for Social Security (an independent agency). However, the actual exercise of the social security powers (conferring allowances and so on) is in the hands of a number of private companies. For this purpose, the National Institution has mandated its powers to these companies; the figure of mandate brings about that the National Institution remains legally responsible (especially towards the administrative courts).
[15] Article 10:15 Awb. Delegation often occurs to independent agencies. The legal construction is here that the original power is conferred to a Minister, who can delegate the power wholly or partially to an agency. In this way, the Minister is able to withdraw the delegation, if the agency appears not to exersise the power in the desired way.
[16] Other than for example in German law, where the principle of the `Gesetzmäßigkeit der Verwaltung' is explicitly written down in article 20 of the Grundgesetz.
[17] The latter for example in the cases of the Tax-inspectors and the Director-General of the Dutch Competition Authority.
[18] In the examples given above it concerns the relation: Tax inspectors - Minister of Finance; Urban planning inspectors - Minister of Urban planning; Labour inspectors - Minister of Social Affairs; Director-General of the Dutch Competition Authority - Minister of Economic Affairs.
[19] On the basis of the reasonment that one can only be held responsible for acts which one can influence, by way of instructions.
[20] Article 10.1.3.1 and 10.1.3.2 Fourth Part Awb.
[21] The independence of the agency is lying in the very fact that the Minister cannot give specific instructions. General instructions, on the other hand, are quite possible and very common. Cf. article 4:81 Awb, which confers an administrative body the power to establish policy rules in respect to powers which it has delegated to another body.
[22] See especially State Council, October 21st 1996, JB 1996, 232.
[23] Article 4.4.1.2 and 4.4.1.4 Fourth Part Awb.
[24] Article 4.4.2.3 Fourth Part Awb. A decision about the legal interests occurs both in the case that the citizen owns a debt to the administration as in the case that the administration owns money to the citizen.
[25] Section 4.4.3. Fourth Part Awb.
[26] Article 4.4.4.4 Fourth Part Awb. The Fourth Part does not open the possibility of a writ of execution in general, but refers in this field to special statutory provisions.
[27] In other countries, provisions about administrative enforcement are not contained in the general codification of administrative law, but in separate Acts of Parliament. Cf. German law, where administrative enforcement has not been regulated in the general Verwaltungsverfahrensgesetz, but in a separate Verwaltungsvollstreckungsgesetz. In Dutch opinion, administrative enforcement belongs to the general part of administrative law and should, therefore, be regulated in the Awb.
[28] Especially article 6 thereof, which will appear in the discussion below several times.
[29] Article 5.0.1, subsection 1 Fourth Part Awb.
[30] Article 5.0.1, subsections 2 and 3 Fourth Part Awb.
[31] Article 5.0.2 Fourth Part Awb. The Fourth Part Awb, actually, does not use the term `punitive sanctions', but merely distinguishes between `reparatory sanctions' and `sanctions, not being reparatory sanctions'. For the sake of presentation the latter sanctions are hereunder nevertheless referred to as `punitive sanctions'.
[32] The Awb is not applicable to penal sanctions; see article 1:6 Awb. However, also the imposition of administrative sanctions of a punitive nature is to be regarded as a `criminal charge' in the sense of article 6 ECHR, so that these sanctions are under the scope of this treaty-provision. Cf. the Öztürk-decision of the European Court of Human Rights, February 21st 1984, Series A, no. 73.
[33] Best-known examples are the enforced execution and the administrative penalty.
[34] The best-known example is here: the administrative fine. Also the withdrawal of a permit or exemption, in order to punish the offender, is to be regarded as a punitive sanction.
[35] Article 5.0.4, subsection 1 Fourth Part Awb.
[36] Article 5.0.4, subsection 2 Fourth Part Awb.
[37] Considering that a reparatory sanction aims at nothing more than to realize the compliance with an obligation, which had to be observed - in this case: with retrospective effect - by the citizen already in the first place. In other words: the main problem is here the question whether, and to what extent the Legislative may prohibit certain acts with retrospective effect, and not so much the admissibility of the - corresponding - reparatory sanction.
[38] Article 5.0.11, subsections 1 and 2 Fourth Part Awb.
[39] ECHR February 25th 1993, Series A, no. 256-A, Funke.
[40] NB. The right to keep silent and the obligation to give a caution are not applicable in the case of reparatory sanctions. In this case, the full obligation to cooperate, according to article 5:20 Awb, exists.
[41] Article 5.0.6 Fourth Part Awb.
[42] A concurrence of enforced execution and an administrative penalty was already earlier prohibited by case law and is - in line of this - at the moment prohibited by the articles 5:31 jo 5:36 Awb.
[43] Be it, that a concurrence of an administrative fine and a penal prosecution (the most probable concurrence of punitive sanctions) is prohibited elsewhere in the Fourth Part Awb; see the following par. 6 of this contribution.
[44] See, amongst others: F.C.M.A. Michiels, De boete in opmars? (`The administrative fine in progress?'), inaugural lecture, Zwolle 1994. Also the report of the so called Commission for Review of Legislative Projects on `Enforcement by administrative fines' (The Hague, 1993) has been of much influence on the proposed provisions of the Fourth Part Awb in this field.
[45] In - untranslatable - Dutch: a `lik-op-stuk beleid'.
[46] See the Act on Administrative Enforcement of Traffic Offences, Stb. 1989, 300, also known - after its designer - as the Lex-Mulder.
[47] Article 5.4.1.1, subsections 1 and 2 Fourth Part Awb. The second subsection of article 5.4.1.1 especially excludes the withdrawal or reduction of allowances and subsidies, by way of a sanction.
[48] Article 5.4.1.2 Fourth Part Awb.
[49] See ECHR October 7th 1988, Series A, no. 141-A, Salabiaku.
[50] In the `regular' system of the Awb the lodging of an objection or an appeal does not suspend the attacked decision; see article 6:16 Awb.
[51] Thus, article 63 of the Companies Competition Act 1998 stipulates that the lodging of objection or appeal against an administrative fine pursuant to this Act - which can rise up to 1,000,000 Dutch guilders or, if this is more, 10 percent of the turnover of the companies concerned - has a suspending effect.
[52] Article 5.4.1.4 Fourth Part Awb.
[53] Article 5.4.1.5 Fourth Part Awb. Submitting the offence to the Public Prosecution is not obligatory if such is stipulated so by a special statutory provision or if the Public Prosecution has agreed with the administrative body that submission does not have to take place. Furthermore, the Public Prosecution can, on behalf of the administrative body, draw up guidelines about the cases in which it will prosecute or not.
[54] Article 5.4.1.7, subsections 1 and 2 Fourth Part Awb.
[55] Article 5.4.1.7, subsection 3 Fourth Part Awb.
[56] Cf. the abundant case-law concerning the anti-hardship clause of article 63 of the General Act on Central Government Taxes, stipulating that the Minister of Finance has the power to deviate in particular cases or categories of cases from the provisions of tax-law, if the full-lenght application thereof would cause major unfairness.
[57] Cf. especially the so called Kwantum-decision of the Dutch State Council of May 5th 1996, JB 1996, 158, Rawb 1996, 104, which was discussed in the Chronicle by my hand in: ERPL/REDP 1999, p. 230.
[58] See for example ECHR Februari 10th 1983, Series A, no. 58, Albert and Lecompte and ECHR July 8th 1987, Series A, nos. 121-A and 121-B, W., B. and R. v. United Kingdom.
[59] For example: State Council July 4th 1996, JB 1996, 172, Rawb 1996, 110.
[60] Article 5.4.2.2 Fourth Part Awb.
[61] The Fourth Part Awb already anticipates to the currency which will be in force at the moment of coming of entry of the Act. 340 Euro is equal to 750 Dutch guilders.
[62] Article 5.4.2.1 Fourth Part Awb. Also in the case of minor fines (lower than 340 Euro) the administration is entitled to make up such a report, for example to dispose of adequate proof materials in a possible procedure before the courts. If an official report has been made up by an investigation officer, this takes the place of the administrative report.
[63] Article 5.4.2.3 jo 5.4.2.6 Fourth Part Awb. Normally, in the case of so called financial decisions, hearing the citizen occurs only on a facultative basis, to the discretion of the administrative body; article 4:12 Awb. With administrative fines, however, hearing the offender - or at least giving him the opportunity thereto - is obligatory.
[64] Of course, also in this hearing procedure, the offender may use his right to keep silent about the offence; see article 5.0.11 Fourth Part Awb, discussed above.
[65] Article 5.4.2.4 Fourth Part Awb. If the offence has been submitted to the Public Prosecution, concerning the question whether it will prosecute or not (see above) this period can be extended with, at the most, another thirteen weeks.
[66] Article 6:2 Awb. The request to the court will be here to issue an injuction to the administrative body that it shall take a decision about the imposition within a certain period.
[67] Article 5.4.1.6 Fourth Part Awb.
[68] See about the problems of juridification of the public administration the Dutch Chronicle in ERPL/REDP 1999, p. 223 ff.