Publicaties van de faculteit Rechtsgeleerdheid van de Universiteit Utrecht. Deze publicatie is beschikbaar via de publicatiewebsite van het G.J. Wiarda Instituut, Utrechts Instituut voor Rechtswetenschappelijk onderzoek.

Chronicle 1998, 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 1999, vol. 11.1, p. 223-240.

In this contribution, two recent developments in Dutch administrative law are discussed. The codification of administrative law in a General Administrative Law Act (1994) has contributed much to this field of law, but has also caused additional legal complications for the administration. In 1997 the so called Van Kemenade-Committee has published a report in which these problems were brought into attention. As a reaction to this, in 1998 a governmental Point of view on the `Juridification of the public administration' appeared in which some adjustments of the General Administrative Law Act are announced. In 1998, the so called Leemhuis-Committee published a report on the organization and the management of the Judiciary. Most important proposition is the establishment of a `Council for the Judiciary' which will be responsible for a more adequate management of the Judiciary as a whole. In the Memorandum `The Judiciary in the 21st century' of 1998, the Government follows the propositions of the Leemhuis-Committee to a great extent. However, the proposed power of the Council for the Judiciary to direct binding policy rules to the courts is denied, because this would be in conflict with the judicial independence.

1 Introduction

`Movement and countermovement' can be the leading phrase of this contribution. As from January 1st 1994, in the Netherlands a General Administrative Law Act (in Dutch: Algemene wet bestuursrecht, abbreviated further on as: Awb) is in force. In this Act general rules of administrative law are codified, both concerning the primary decision-making process of the administration, as the following stages of objection and appeal to the administrative courts. Without doubt, the General Administrative Law Act has meant a decisive step forwards for Dutch administrative law. Important chapters of administrative law, which before only were to be found in diverse legislation and case-law, are now systematically brought together in a codification. Needless diversion of administrative regulations is avoided by the harmonizing provisions of the Awb. The Awb also contains, at some points, new rules of administrative law. [1]

However, the Awb has also contributed to an increased juridification of the public administration. Administrative procedures are regulated to a higher degree: see the obligation to hear the interested parties, contained in the articles 4:7 and 4:8 Awb, and the (extensive) public preparatory procedures, as meant in the Parts 3.4 and 3.5 of the Awb. Objection and appeal against administrative decisions are now - some exceptions provided - possible on a general scale. The entitlement of interest groups to make an appeal to the administrative courts is laid down with so many words in the Awb. Especially in the first years after the entry into effect of the Awb one could see that (lower) courts were rather severe in handling the provisions of the Awb, which as such was understandable from a point of view of an adequate implementation of the Awb, but caused also additional legal complications for the administration.

It is not to be astonished that, as a result of this developments, some sort of a `countermovement' came up. In November 1997 a Committee, chaired by the Royal Commissioner in the province of Noord-Holland, dr. J.A. van Kemenade, published a report called `Bestuur in geding'. [2] The general message of the report is that the juridification of the public administration has gone too far. The Awb has become, in some respects, too tightening for the administration. Especially the administrative courts are reproached for reviewing the administrative action in a too detailed manner and for acting as `substitute-administrators'.

Also as a reaction to the Van Kemenade-report the Government sent, in December 1998, a Point of view on the `Juridification of the public administration' to Parliament. [3] In this Point of view the conclusions of the Van Kemenade-Committee are partly adhered; also a number of action-points are formulated. The contents of the Van Kemenade-report and the governmental Point of view are further discussed in par. 2.

A `countermovement' of another nature is to be found in the report of the Committee `Equipment and organization of the Judiciary' which appeared in January 1998. This Committee - which was, unlike the Van Kemenade-Committee, officially established by the Government - was also under the chairmanship of a Royal Commissioner, in this case the Commissioner of the province of Zuid-Holland, mrs. J.H. Leemhuis-Stout. The Leemhuis-Committee was asked to undertake an investigation to the facilities with which the Judiciary can comply in the future to the demands of a swift and adequate adjudication, while preserving the quality thereof. The report of the Committee, with the title `Rechtspraak bij de tijd' [4], contains a large number of recommendations. The most important of these is the proposition to establish an independent `Council for the Judiciary', partly composed of judges and partly of persons outside the Judiciary, which will be primarily responsible for the management of the Judiciary.

The Leemhuis-report has been received ambiguously. Though it is generally acknowledged that the management of the Judiciary and the speed of dealing with the case-load are to be improved, a major point of criticism is that the propositions of the Committee may jeopardize the independence of the Judiciary. Regarded as especially problematic is the proposition to endow the Council for the Judiciary with the power to establish general rules of judicial policy which would be binding on the courts.

In December 1998, the Government gave a first reaction on the Leemhuis-report in the Memorandum `Rechtspraak in de 21e eeuw'. [5] The contents of the report of the Leemhuis-Committee and of the governmental Memorandum are discussed in par. 3.

2 Juridification of the public administration

The Van Kemenade-report

As pointed out, the Van Kemenade-Committee thinks that the juridification of the public administration has grown to a too extensive proportion. One of the most important considerations is that the numerous possibilities of appeal to the administrative courts existing today can be a threat to the political democracy. The public administration is responsible to elected representative bodies and has, in this way, a political legitimation. The courts may not interfere with decisions which are politically approved, by substituting these on behalf of their own appreciation. If they do so, the separation between the legislative, executive and judicial powers is at risk, in the opinion of the Committee.

In order to prevent a legal `incarceration' of the administration and a too prominent role of the courts, the Committee makes various propositions.

·	The courts should review discretionary powers of the administration in a restricted manner. According to the Committee, the balancing of interests by the administration should not be reviewed by the courts in an integral way; a judicial intervention is only at its place if there is such a distortion in the balancing of the interests, that the administrative body must be deemed not to have been reasonably able to come to the decision. The courts, in other words, must limit themselves to a review on manifest unreasonableness and may not duplicate administrative decisions, according to their own appreciation of the interests concerned.
·	Article 6:22 Awb allows, at the moment, to refrain from quashing of a decision if, in spite of an infringement of a procedural rule while preparing the decision, the infringement has not harmed the interests of the parties concerned. [6] The Committee suggests to introduce also the possibility of passing minor infringements in the field of material law.
·	The Committee is in favour of broader possibilities for administrative bodies to withdraw or modify a decision, whilst an objection or appeal is pending against this decision. [7] In this way the administration is able, to a larger extent, to rectify earlier mistakes and avoid a judicial quashing of the decision.
·	In the system of the Awb, before an appeal at the administrative courts can be lodged, first an objection must be made with the administrative body which made the original decision. [8] However, in some cases the positions of the administrative body and the opposed citizen are already so clear and irreconcilable, that there is no use to follow the objection procedure. The Committee proposes that in these cases the administrative body can decide that the phase of objection is to be passed, so that an appeal to the court can be lodged directly. In this way needless procedures and loss of time can be avoided.
·	As from 1994, an administrative body can be condemned to pay the costs of the appeal proceedings which the citizen has made. The citizen, on the other hand, can only be condemned to pay the costs of the administrative body, if he has made a manifestly unreasonable use of the right of appeal. [9] The Committee thinks that a condemnation of the citizen to pay the costs must be possible in the same way as is the case with the administrative body. Thus also the citizen would operate under a normal `risk of proceedings' which prevents appeals without chance of success. The Committee also proposes that the courts must limit their review strictly to the grounds of appeal which are brought forward by the citizen; expansion or improvement of these grounds ex officio by the courts should not be allowed. [10]

The governmental Point of view

In the governmental Point of view `Juridification of the public administration' of December 1998 a number of the above mentioned proposals of the Van Kemenade-Committee are followed.

·	Thus, also the Government intends to introduce the possibility of pardoning minor infringements of material law (enlargement of article 6:22 Awb). The suggestion that the administration should have broader possibilities to withdraw or modify a decision, whilst objection or appeal is pending (article 6:18 Awb), is followed too.
·	The Government does not support the opinion of the Van Kemenade-Committee that the courts are reviewing discretionary powers of the administration in a too extensive way. [11] However, the legal phrasing of the principles of fair administration - which are partly codified in the Awb and are also grounds for review for the courts - should, if possible, be formulated in the Awb in a more precise way.
·	The procedure of objection must, also in the opinion of the Government, be simplified in some respects. It is proposed especially that this procedure can be passed, if all parties agree with this, so that the dispute can be brought directly before the courts (possibility of prorogation). [12]
·	Not supported are the proposals to broaden the possibilities of condemning the citizen in the costs of the proceedings and to limit the judicial review to the grounds which are brought forward by the plaintiff. The first proposal neglects, in the opinion of the Government, the unequal position of the administration and the citizen in a procedure before the administrative courts. With respect to the second proposal the Government thinks that in a proper system of review the amplification ex officio of the legal grounds or the facts may not be excluded, be it that the courts should be cautious with this. [13]
·	In the governmental Point of view also some proposals are made which were not to be found in the Van Kemenade-report:
·	The Government is planning to introduce facilitating regulations for so called `complex decision-making' at short notice. This complex decision-making especially occurs with large infrastructural projects which bring about an accumulation of decisions, on the basis of various statutory provisions and by various levels of the administration - central government, provinces and municipalities. This accumulation of decisions causes, at its turn, a large number of appeals to the administrative courts. [14]
·	In order to speed up the proceedings before the administrative courts and, as a result of this, also avoiding time of loss for the administrative decision-making process, the Government intends to bind the proceedings before the courts to a statutory time-limit. [15] Finally, more categories of disputes than nowadays should be limited to a judicial review in one instance. [16]

Some remarks

What to think of the proposals, put forward by the Van Kemenade-Committee and the governmental Point of view on Juridification of the public administration? Let us say first that the sign which is delivered by the Committee and the governmental Point of view must be taken seriously: legal regulations and procedures are not a goal in itself. Administrative law may not impede an efficient administration, but must on the contrary facilitate this, where possible.

In an achieved society, on the other hand, also the rule of law must be upheld. Here is the crux of the matter. The mere reason of existence of administrative law is that the public administration is endowed with very large powers: it can unilaterally determine the legal position of the citizen. This position of power must be mitigated and regulated by (procedural and material) legal provisions. Moreover, also a review on the compliance with these provisions by independent courts must be available. [17] It is exactly for the further realization of these principles of the rule of law, that the Awb has been introduced in 1994. It may be that, in some respects, the legislative has gone too far with the provisions of the Awb and that the complications for an effective administration, at some points, were underestimated. Nevertheless, the principle of the rule of law - as laid down in the Awb - may not be affected in its essence. [18]

In addition, one can say that at least the analysis of the Van Kemenade-Committee is questionable at various points. [19] The Committee for example puts forward the primacy of political democracy, opposed to the primacy of the judiciary. However, as De Waard points out rightfully [20], the vast majority of administrative decisions is made out of sight of politics: Parliament or a municipal council do not interfere with each individual permit or subsidy, granted by a Minister or the municipal executive. Only in important, leading decisions the political responsibility is activated, but in these cases one can also see that the courts are cautious and do not intervene in the political decision-making process. At the occasion of most administrative decisions, meanwhile, the possibility of judicial review is the only `counterweight', which therefore cannot be done without.

Also the analysis of the Van Kemenade-Committee about the intensiveness of the judicial review can be subject to criticism. The courts are reproached not to limit themselves to a marginal review on unreasonableness, but to duplicate the balancing of interests by the administration. The Committee, however, neglects that the administrative courts themselves have indicated that the judicial review of discretionary powers of the administration has to be a restrained one. See especially the so called Kwantum-decision of the Jurisdictional Section of the State Council of May 5th 1996 [21] in which the State Council decided, in broad terms:

`Article 3:4, subsection 2 General Administrative Law Act stipulates that the adverse consequences of an administrative decision for one or more interested parties may not be disproportional in relation to the purposes served by the decision. With this provision, directed to the administration, the Legislative has not meant to intensify the judicial review in respect to the case-law which had been developed before the General Administrative Law Act. Also the explanatory memorandum on the Act shows that the Legislative has intended, with the double negation (`not-disproportional'), to oblige the courts to a restrained review of the balancing of interests by the administration. The courts, therefore, must limit themselves to answer the question whether there is such a distortion in the balancing of the interests concerned, that the administrative body must be deemed not to have been reasonably able to come to the decision.'

The governmental Point of view therefore rightfully points out - with a reference to this decision - that the courts themselves are already cautious about the separation between the legislative, the executive and the judiciary and that there is no need to restrict the judicial review by way of an intervention of the legislative. One can add that, had the propositions of the Van Kemenade-Committee on this point been realized indeed, this would have meant a jump-back of fifty years in time. [22]

The above does not mean to ignore that, also under the rule of law, attention must be paid to the effectiveness of administrative law. A critical look at the Awb - being the achievement as it is - is useful and necessary. The credits of the Van Kemenade-Committee - so much must be said - are that it has brought this into attention in an clear way. The message is now picked up in the governmental Point of view. It has to be seen to what degree the propositions thereof will be realized and how these will work out in the future. [23]

3 Organization and management of the Judiciary [24]

The organization and the management of the Judiciary are already for a longer period reason for concern in the Netherlands. As from 1990, a number of reports on these matters have been published [25] which were followed by the report of the Leemhuis-Committee of 1998.

Two problems are apparent. In the first place the management structure of the courts is poorly developed and unclear. The judicial coordination (for example preserving the consistency of the case-law) is handled by means of many informal deliberation structures. [26] The Praesidia of the courts, however, scarcely have possibilities to direct formal instructions to individual judges. With respect to the allocation of personnel and finance resources, the courts are dependent on the Ministry of Justice. This appoints, at each court, an Administrator of the court. The administrative and legal assistants are subordinated to him - not to the courts! The inadequate management structure of the Judiciary is also apparent at a higher level. Informal deliberation structures of the (highest) courts exist, but there is no official platform for the Judiciary to take care of the coordination between the courts or to negotiate with the Ministry of Justice.

Another important problem is the lack of speed of dealing with the case-load. Notorious is the lack of capacity in penal matters, which is to be worried about in view of the increasing appeal on the penal jurisdiction, especially caused by drugs-related criminality. Civil procedures are slow because of outdated procedural rules, whilst also the parties in civil litigations show little adequate proceedings behaviour, in which the courts have few possibilities to intervene. Finally, also the administrative courts have a huge case-load, so that a decision in an administrative procedure in the first instance is not to be expected within a year; if higher appeal is lodged, the procedure will take another two years.

Propositions of the Leemhuis-Committee

The Leemhuis-Committee makes several propositions to meet the problems mentioned above.

·	At the level of the courts, the Committee proposes to establish a `Management Board', composed of the President, a Director of quality (a judge) and a Director of administration (a non-judge). This Board is responsible for the whole of the administration of the court. It can summon the presidents of the civil, penal and administrative sections [27] with respect to the functioning of their departments. If needed, the Board can direct instructions or even a binding order to the individual judges.
·	At the national level, a `Council for the Judiciary' should be established, composed of three members of the Judiciary and two members outside of the Judiciary, and supported by an administrative apparatus of its own. [28] The Council is to be entrusted with a multitude of tasks and will be responsible for:
·	external affairs and public relations
·	the cooperation between the courts
·	the personnel and nominations policy
·	quality improvement and research policy
·	providing advice to the Minister of Justice
·	furthermore the Council will coordinate the court facilities, such as the housing and safe-keeping of the courts, the organization and automatization, and the administrative information exchange
·	finally, the Council has an important say in the budget procedure and the allocation of resources within the Judiciary; in view of this, the Council draws up the yearly draft-budget of the Judiciary which is presented to the Minister of Justice.
·	In the opinion of the Leemhuis-Committee a power of the Council to direct policy rules to the courts is necessary, from a point of view of an effective coordination. These policy rules will primarily concern the organization and the management, but the Committee does not exclude that also in the judicial field harmonizing policy rules can be established (for example with regard to discretionary powers of the courts or the applying of open norms). The policy rules will be binding on the courts, which can only depart from these in special circumstances. Individual judges will have a right of appeal against the policy rules.
·	The Council for the Judiciary is, at its turn, under the supervision of the Minister of Justice. The yearly planning of the Council is to be approved by him, whilst the Minister also has a power to give general instructions.
·	In order to guarantee the quality of the adjudication and to improve the speed of dealing with the case-load, the Committee proposes to enlarge the number of the judicial and assisting personnel to a considerable degree. Firm investments are also needed for a modern management.

Criticism with regard to the propositions

As pointed out before, the propositions of the Leemhuis-Committee have been received ambiguously. Major point of criticism is that the strong position of the Council for the Judiciary, with its power to direct policy rules to the courts, may affect the judicial independence. See especially Bovend'Eert [29], in whose opinion it is fundamentally unacceptable that the courts can be given instructions with respect to their judicial responsibilities. Supervision on the decisions of lower courts must be exercised by the well-known and approved means of higher appeal and cassation. Furthermore, the author indicates that the Minister of Justice, by means of his power to give instructions to the Council for the Judiciary, can obtain an indirect influence on the judicial policy, which is an undesirable intervention of the executive in the field of the judiciary.

Brenninkmeijer [30] is somewhat more clement in his criticism. He points out that, apart from the judicial independence, also requirements of quality and effectiveness must be met. These requirements ask for an adequate degree of organization and accountability, and a certain hierarchy. The author, nevertheless, is also doubtful about the power of the Council for the Judiciary to establish policy rules (an unneeded form of juridification); in any case, the proposed right of appeal of individual judges against these policy rules is regarded to be a legal monstrum.

What to think of these criticisms? It has to be observed that obviously the independence of the Judiciary is of great importance; however, one has to realize which form of independence one speaks about. The Leemhuis-Committee distinguishes three levels of independence: the independence of individual judges (micro-level), the independence of the courts (meso-level) and the independence of the Judiciary as a whole (macro-level).

In my opinion, it is a mistake to speak about the independence of individual judges. Not the judges, but the courts are independent. [31] The fact that individual judges are appointed for life [32] does not alter this: The irremovability of judges is a measure to prevent other powers of the trias (especially the executive) from influencing the decisions of the courts; independence of individual judges is not implied by this. The proposition of the Leemhuis-Committee to give the Management Board of the court the power to direct instructions or orders to individual judges is therefore, in my opinion, acceptable as such. [33]

It is of the greatest importance that the courts can give their decisions independently (the above mentioned meso-level). Here the `core business' of the judicial independence is at stake. From this point of view the power of the Council for the Judiciary to direct policy rules to the courts seems at least questionable - especially if these policy rules do not confine themselves to organisational or procedural matters, but also influence the contents of the judicial decisions. The objections could be taken away in some degree, if the policy rules were to be established in close cooperation with the courts [34], but the propositions of the Leemhuis-Committee rather seem to indicate a `top-down' establishment of these rules.

Apart from the power to provide policy rules, the establishment as such of the Council for the Judiciary is to be welcomed, from a point of view of the independence of the Judiciary as a whole (macro-level). Not only the Council will be able to contribute to a more consistent course of the Judiciary itself (which will also mean an improvement of the unity and the strength of the courts), but it will also be an effective `counter-partner' to the executive, especially the money-providing Minister of Justice. Some doubts can exist - as expressed by Bovend'Eert [35] - about the power of the Minister to give instructions to the Council, in so far as these instructions would also concern material questions of judicial policy.

The Memorandum `The Judiciary in the 21st century'

The Government, in the Memorandum `The Judiciary in the 21st century' of December 1998 - being a first reaction on the Leemhuis-report - has taken the criticisms mentioned above partly into consideration.

·	The proposition of establishing a Council for the Judiciary is firmly approved - the establishment of the Council is foreseen in the year 2002 - but the Council should, in the opinion of the Government, not been given the power to direct policy rules to the courts. Such a power would be in conflict with the independence of the Judiciary and could also affect the position of the Legislative. Thus an important point of criticism on the Leemhuis-report is taken away.
·	The Government, on the other hand, emphasizes that the establishment of the Council for the Judiciary may not diminish the governmental responsibilities - especially those of the Minister of Justice - in the fields of the budget and the financing. It seems that here the one hand takes away what the other hand has given. One of the better suggestions of the Leemhuis-Committee was to reduce the financial dependence of the Judiciary towards the executive, by means of an important say of the Council for the Judiciary with respect to the annual budget of the Judiciary. Of course the Government has a responsibility for the public budget as a whole, but one thinks that the financial `cage' of the Judiciary could have been opened somewhat more than is intended in the present Memorandum.
·	It has to be investigated, wether the establishment of the Council for the Judiciary makes a revision of the Constitution necessary. An advice of the State Council on this matter will be asked for. [36]
·	At the level of the courts, the Government follows the proposition of establishing a `Management Board' which will be responsible for the administration of the court. Also the organization and communication of the courts, as well as a helpful attitude towards the justiciable must be improved.
·	Furthermore, the Memorandum suggests to open more possibilities for litigation settlement outside the courts (`mediation'), whilst also a modernization of procedural law (especially in civil matters) is announced.
·	Every reorganization has its price. An extra financial impulse for the Judiciary of ca. 300 million guilders per year is foreseen for the next four years.

It has to be observed that the intentions of the Memorandum are formulated in rather general terms. The Government has without doubt - at major points - followed the propositions of the Leemhuis-Committee, but it is only in the years to come that the precise implementation of these propositions will become clear. It is, therefore, not to be excluded that the problematics of the organization and the management of the Dutch Judiciary will be discussed again in a coming number of this Review.

4 Concluding remarks

Administrative law is - in a Dutch expression - no `quiet possession'. The above shows that Dutch administrative law - also with the codification of the Awb in 1994, which as such meant an important consolidation of this field of law - is nevertheless `on the move' in several fields.

This is not to be astonished, because in administrative law - as elsewhere - often contradictory tendencies must be reconciled. What concerns the juridification of the public administration which was put on the agenda by the Van Kemenade-Committee, a field of tension is apparent between the requirements of the rule of law and the needs of an efficient administration. The Leemhuis-Committee had to operate between the desirability of a modern and adequate adjudication on the one hand and the preserving of classical guarantees such as the judicial independence on the other. [37] Administrative law must find a new balance in these fields. Unneeded traditionalism must be avoided here, but also important values and principles for which administrative law has always stood may not be done away with. Also in the coming years, the further `designing' of Dutch administrative law will be a social and intellectual challenge.

Noten

[1] See about the codification of the general part of administrative law in the Netherlands, in the General Administrative Law Act, 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 addresses: http://www.minjust.nl/a_beleid/thema/awb/teksten/awbeng/index.htm and: http://www.minjust.nl/a_beleid/thema/awb/teksten/download/algemeen.htm.

[2] In English: `The administration at risk'. Members of the Van Kemenade-Committee were especially administrators of local authorities. The Committee was not established officially, but was the private initiative of some local administrators. However - as will be pointed out below - the report of the Van Kemenade-Committee has been of considerable influence.

[3] The Van Kemenade-report was not the only reason for bringing out the Point of view. Already after the Evaluation of the Awb in 1995/1996 a governmental opinion was announced about the problems of juridification.

[4] In an - approximate - English translation: `Modern and adequate adjudication'.

[5] `The Judiciary in the 21st century', Parliamentary papers TK 1998/1999, 26 352, nos. 1-2.

[6] This possibility of `pardoning' procedural infringements is also to be found in other legal systems. Cf. in German administrative law the provision of § 46 Verwaltungsverfahrensgesetz. This provision has been at the origins of the Dutch provision of article 6:22 Awb.

[7] See the nowadays article 6:18 Awb: `The fact that an objection or appeal is pending against a decision shall not alter an existing power to withdraw or modify that decision which would also exist if no such objection or appeal had been pending.'

[8] Cf. article 7:1 Awb: `A person who has the right to appeal against a decision to an administrative court shall make an objection against the decision before appealing.' Also here equivalents in foreign law are present. Cf. the `Widerspruchsverfahren' in Germany, which also preceeds an appeal to the administrative courts.

[9] See article 8:75 Awb.

[10] Article 8:69, subsection 1 Awb nowadays stipulates that `the courts shall give judgment on the basis of the notice of appeal, the documents lodged, the proceedings during the preliminary examination and the examination in court.' The courts, however, `shall amplify the legal grounds on their own initiative' and `may amplify the facts on their own initiative' (subsections 2 and 3).

[11] Reference is made, in this respect, to the leading decision of the Jurisdictional Section of the State Council dd. May 5th 1996 (Kwantum-decision). This decision will be discussed more in detail below.

[12] The Government does not go as far as the Van Kemenade-Committee which proposed that the objection procedure can be passed if the administrative body decides so. Rightfully the Government thinks that the passing of a step in the litigious procedure, with it's loss of an instance, may not happen on the initiative of only one party.

[13] As they are indeed. Amplification of the legal grounds, on the initiative of the courts, only occurs if so called `provisions of public order' are at stake. Only a limited number of legal provisions is considered by the courts to be of this nature. Amplification of the facts by the courts is more current, but has to do with the duty of the courts to investigate the facts to their best ability (inquisitorial basis of the procedure before the administrative courts).

[14] Recent examples of complex decision-making in the Netherlands are the construction of the so called Betuwe-line (a new cargo-railway from the Rotterdam harbour to Germany) and the expansion or maybe the displacement of the national airport Schiphol.

[15] At the moment article 8:66 Awb stipulates that `the courts shall give judgment in writing within six weeks after the closing of the examination in court.' The Awb, however, does not prescribe a maximum time-limit for the proceedings before the courts as a whole.

[16] Currently, in most disputes with the administration a procedure in two judicial instances is possible.

[17] As is stipulated also by article 6 of the European Convention on Human Rights, when disputes about `civil rights and obligations' or `criminal charges' are at stake. One knows that - under the extensive case-law of the European Court for Human Rights - such disputes easily occur in the case of administrative decisions.

[18] One could say - in a Dutch proverbial way - that the Committee and the Government, in some respects, `throw away the child with the bath-water'.

[19] Cf. P.J.J. van Buuren, De halve waarheden van de werkgroep-Van Kemenade (`The semi-truths of the Van Kemenade-Committee'), Nieuwsbrief bij de informatiebank bestuursrecht, Alphen a/d Rijn, October 1997, p. 6-7. Also critical about the Van Kemenade-report: A.R. Neerhof, R.J.N. Schlössels and M. de Werd, Bestuur in geding, Enige tegenstrijdige opmerkingen naar aanleiding van het rapport-Van Kemenade (`Some contradicting remarks on the Van Kemenade-report'), Jurisprudentie Bestuursrecht 1997, p. 1254-1266.

[20] B.W.N. de Waard, Knellend bestuursrecht (`Coercing administrative law'), Reactie op het rapport van de werkgroep-Van Kemenade, Nederlands Tijdschrift voor Bestuursrecht 1998, p. 60-65.

[21] JB 1996, 158, Rawb 1996, 104. The procedure was about a building-permit which was granted on behalf of a megastore of the Kwantum company.

[22] In 1949 the Dutch Court of Cassation introduced in the famous case of the Doetinchem housing requisitioning (HR February 25th 1949, NJ 1949, 558, ARB 1949, p. 788) for the first time the (marginal) review of reasonableness of the balancing of interests by the administration. This decision is generally regarded by Dutch doctrine as the beginning of a genuine judicial protection against the administration. Cf. the English Wednesbury-case [1948], 1 KB 223 which appeared at about the same time and in which the Court of Appeal for the first time exercised the `unreasonableness'-test of administrative decisions.

[23] If useful, attention will be paid to the follow-up of the propositions of the governmental Point of view in a coming number of this Review.

[24] It may astonish that the developments on the organization and management of the Judiciary are discussed in a contribution about Dutch administrative law, because not only the administrative jurisdiction, but also the civil and penal jurisdiction are involved here. Nevertheless, the organization and management of the Judiciary can be regarded as a form of special administrative organisatonial law, which explains the vivid attention which has been paid to the propositions of the Leemhuis-Committee of 1998 by Dutch scholars of constitutional and administrative law. Also in other countries the organization and management of the Judiciary are regarded to be a part of administrative law. Cf. the situation in France where the Judiciary is viewed to be an organisational Service of the State (`Service public judiciare'), so that measures concerning the organization and management of the Judiciary are under the competence of the administrative courts; thus the Tribunal des Conflits in it's decision of November 27th 1952, Rec. 642, Préfet de la Guyane.

[25] Amongst others the report of the Hoekstra-Committee, chaired by the Secretary-General of the Prime Minister's Office (1995) and the report of the so called Initiating Conference, composed of judges, court administrators and representatives of the Ministry of Justice (1996).

[26] A detailed inventory of the deliberation structures within the administrative sections of the courts is given in the Evaluation report on the administrative court proceedings under the Awb (J.B.J.M. ten Berge e.a, Het bestuursprocesrecht, Ervaringen met de Awb, Deel 2, Deventer 1996, p. 365 ff.).

[27] Since the reorganization of the Judiciary of 1994, the courts in first instance have chambers, not only for civil and penal litigations, but also for administrative litigations. Cf. Arnout Klap, Chronicle Administrative law, The Netherlands, ERPL/REDP 1994, p. 221 ff.

[28] The proposition of the Leemhuis-Committee to establish a Council for the Judiciary has without doubt also been inspired by foreign examples. In France, for example, a `Conseil supérieur de la Magistrature' exists, whilst also in Italy a `Consiglio Superiore della Magistratura' is in function.

[29] P.P.T. Bovend'Eert, Onafhankelijke rechtspraak uit de tijd? (`Independence of the Judiciary outdated?'), Nederlands Tijdschrift voor Bestuursrecht 1998, p. 158-164. See also his earlier contribution: Het beheer en het bestuur van de rechterlijke macht in constitutioneel perspectief (`Management and administration of the Judiciary in a constitutional perspective'), RM Themis 1996, p. 229 e.v.

[30] A.F.M. Brenninkmeijer, Rechtspraak bij de tijd, Bespreking van het rapport van de Commissie Leemhuis (`Comment on the Leemhuis-report'), Nederlands Juristenblad 1998, p. 389-395.

[31] Cf. also article 6 European Convention on Human Rights which requires a hearing by `an independent and impartial tribunal'.

[32] Article 117, subsection 1 of the Dutch Constitution.

[33] Another question is, whether it is a sound policy to use hierarchical instructions in the collegial culture of the courts. It seems far better to establish the inner-court coordination by way of mutual deliberations, so that a common basis for this coordination exists.

[34] At the moment informal agreements between the various courts exist. These agreements, however, are only implemented if all the courts concerned concur with these. Cf. about this `bottom-up' method J.B.J.M. ten Berge e.a, Het bestuursprocesrecht, Ervaringen met de Awb, Deel 2, Deventer 1996, p. 358 ff.

[35] Quoted above.

[36] If a revision of the Constitution were necessary - it would go too far to discuss this question in detail in this place - the intended establishment of the Council for the Judiciary in 2002 might be delayed for some time.

[37] In which it did not succeed in all respects; see above.