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Administration by negotiation in the Netherlands
O.J.D.M.L. Jansen
Senior researcher, Centre for the enforcement of European law, Utrecht University, deputy judge, administrative law sector, 's-Hertogenbosch district court and criminal law sector, Arnhem district court, member of the police complaints commission, Amsterdam-Amstelland regional police force, chairman of the appeals and objections commission, Wijchen municipality and vice-chairman of the appeals and objections commission, Maasdriel municipality.
This study has been written within the framework of the DFG-NWO project Transnational law application and enforcement in the european legal space.
To be published by
Nomos.
1. Introduction
The legal literature in the Netherlands has been paying a considerable amount of attention for some time now to horizontal administration or administration by negotiation., voluntary agreements, mediation, Alternative Dispute Resolution (ADR) and dispute settlement. The issue is still of continued topical interest. As recently as 11 May 2000, the influential Dutch professional association of administrative law (VAR) deliberated about the question of 'alternative dispute resolution in administrative law'. [1] In enforcement this topic also plays a major part, among other things in the, according to some, typically Dutch phenomenon of 'toleration' [gedogen].
In this country report the following issues will be dealt with: administration by negotiation, voluntary agreements, alternative dispute resolution in administrative law and toleration. The English translation of the Instructions for voluntary agreements [Aanwijzingen voor de convenanten] has been appended.
2 .Scope of the research
The agreements within government, i.e., mutual agreements between administrative organs or public authorities, will not be discussed. [2] The focus is on agreements entered into in the relationship between authorities and citizens. This relationship is regulated (in the Netherlands) in both private and public law. [3]
It is only fairly recently (1 January 1994) that a general codification of part of the general part of administrative law has been in place in the Netherlands: the General Administrative Law Act (GALA), which is continually being improved and extended. In this framework, the government made a number of remarks, which are important to the subject matter of this country report, concerning the position of the government towards the citizen who was to be the starting point of that Act:
'In accordance with present-day insights, administration can no longer be characterised as the public authorities deciding the citizen's fate without considering his point of view. Although the administrative authorities are bound in the first place by the legislator's rules and the outcome of political decision-making, within these limits it will also have to consider the interests of the citizens involved in the decision-making, as these interests are perceived by the citizens themselves. This calls for a different approach to the citizen, whereby there must be better communication than was judged necessary before. This, by the way, is also often necessary for the proper execution of the administrative function. As soon as somewhat complex decisions are involved - and this occurs ever more regularly with the increase in complexity of administrative functions - it is often not possible to reach a sound decision without the input of interested parties. Their information and at times their expertise cannot be done without. It is also often the case that a proper discharge of the administrative tasks can only be attained when administrative authorities and citizens co-operate. Consultations and sound communication are indispensable then. (
)
This balance [between the burden for the administrative authorities and the benefits to the citizen] is (
) striven for by viewing the relationship between the administrative authorities and the citizen as a legal relationship between, it is true, parties that are different in nature - as the administrative authorities represent the general interest and thereby serve the implementation of democratically arrived at decisions, whereas the other party may serve its own interest as he sees fit - , but still, a legal relationship with reciprocity for both parties, forcing them to take account of the position and the interests of the other party. This has consequences for both parties.'
[4]
3. Administration by negotiation
3.1.Introduction
In Dutch literature, legal sociologists, legal anthropologists and lawyers have for some time already been paying considerable attention to 'horizontal administration' [5] or 'administration by negotiation'. Concentrating on the legal problems of administration by negotiation it is also described as the style of administration which can be typified as:
'a style of administrative decision-making used by the public authorities in the preparation, enactment and implementation of public policy, starting from the assent of others.'
[6]
'In the framework of the 'polder model' it is even advertised: the consultation economy. In the Netherlands everything is, in principle, negotiable.'
[8]
'Instead of
negotiating, administration by negotiation would
squander, in the sense that third party interests and/or general interests are insufficiently weighed in the decision-making process in favour of the government's negotiation partner, whose interests are, to the contrary, overvalued. If the government were to be bound by its promises to one negotiation partner, the third party would be left empty-handed.'
[10]
'Such a formalised say [of the citizen OJ] in the
decision-making by administrative authorities in itself does not create a situation in which there is administration by negotiation (quite apart from the question whether hearing and having a say are adequate as means of communication). The legal backbone of administrative law remains a vertical relationship between the government and the governed. It is fitting that in a decision-orientated system the decision-maker is also the one to determine policy, insofar as the regulations concerned leave room for policy. Such a legal system is well-attuned to a classic, closed, conception of directorship, in which the authorities - both legislative and administrative - establish policy objectives and more detailed rules and policy regulations and takes charge of their implementation.'
[12]
3.2 Examples of administration by negotiation [13]
At the beginning of the 90s, the phrase 'area-directed policy' became current. [14]
Characteristics of area-directed policy are, according to Hendriks: [15]
'- focus on a region (larger than a municipality, smaller than a province);
- horizontal integration of policy (across 'pillars' and policy sectors);
- vertical input of policy (central government, provinces and municipalities);
- active input - in the preparation and implementation of schemes - of citizens and lobby groups (Dutch citizens become policy subjects instead of policy objects).'
This area-directed policy emerged for the fist time in the so-called Spatial Planning and Environment (SPE) areas. Later, it also began to be used in the policy area of agriculture and nature conservation.
SPE areas
The Fourth Memorandum on Physical Planning-Plus and the National Environmental Policy Plan saw the introduction of a new approach to spatial and environmental problems: the SPE [16] areas policy. In this context, eleven SPE-areas were designated. [17] In these areas the quality of the physical surroundings by means of an integrated approach is at stake; not just by deployment of the spatial planning and environmental instruments, but also through the instruments in the framework of nature and water policy and economic policy.
'An important feature of the SPE areas policy is that continually different authorities, sometimes together with businesses and social organisations, co-operate with one another in one single project organisation. They draw up a joint view of the future and a set of measures for its realisation.'
[18]
Dunes and bulb-growing area [19]
Between 1994 and 1996 the often described area-directed Dunes and bulb-growing area project ran. The project resulted in a wide range of agreements between numerous parties [20] on their respective contributions in the field of environmental protection, the development of the landscape and nature, urban development (housing and industrial areas), recreation, tourism and the economic revitalisation of the bulb sector. The immediate cause was the provincial memorandum Keuzevarianten [options] from 1983 which served as a draft of the regional plan for the province. This memorandum caused a general uprising in the region. [21] As a result the province decided to change track: the memorandum was cancelled. All those involved were invited to jointly develop a view of the region's future. A project group was instated from among their representatives and it produced a joint plan: the Teylingen Pact. [22] This project group brought together a number of groups from the area who had 'had their backs to each other' for years: agriculture, nature conservationists and municipalities. [23] Within the project group, according to Hendriks, a substantive, rational process was taking place (exploring problems, trying to find the best possible solution and taking decisions) and a social process, in which the parties shaped their mutual relationship in such a way that they were able to reach a joint conclusion.
According to Hendriks, in this project the problem of representation played a role,
'the first task of the project group being that the members find each other in a joint vision of the future. The second task, however, is to 'canvass' the followers, who must ultimately agree to decisions and are indispensable in their implementation.'
[24]
Hendriks: 'the 'carrier wave' for the decisions to be taken was also the trust that had been inspired in the groups of followers in a new and commonly supported vision of the developments in the region. The message of the project group, that such new cohesion was indeed emerging, was increasingly widely recognised in the course of the process. This was partly due to the reports from the members of the project groups to their own respective followings. What was, however, most important were the contacts
between the followings which were brought about in the preparatory stages of the Pact. These took place, inter alia, in
Corsos, large-scale gatherings which were organised by the project group at regular intervals. Project group members made it clear during these gatherings - to their own following, but with the others present as well - how their points of view in the project had 'shifted' and why. During these corsos, talks and discussions were entered into which enabled the followings to engage in a similar dialogue between themselves as had occurred within the project group. The effect of this approach to the followings was that after a while the Teylingen Pact started to resonate within the Dunes and bulb-growing area. That the Pact indeed needed to be concluded became a given to many, long before the stickiest problems were - finally - resolved.'
[25]
In his contribution, Hendriks pays ample attention to the prerogative of politics: 'In area-directed policy, many decisions are no longer taken in the Provincial Council chamber, but in consultation processes outside it. This could be perceived as a threat to the prerogative of politics or even as undermining the rights of the people's representation. The Zuid-Holland Council, however, accepted the phenomenon and viewed it as a challenge. It drew inspiration from what was taking place 'outside'.' He couches the political role in area-directed policy in the following terms:
'- in area-directed policy, the art of politics lies not so much in making others admit that one's own, previously determined point of view is right. At least as important is the ability of politicians to consistently - and always acting according to circumstances - make the issues and emotions emerging in such policy processes topics of political and social debate;
- tying in with such a conception of the political duties is a conception on the part of the Provincial Council Member of his role: in area-directed policy he must not primarily act as the (co-)administrator of other Provincial Executive members, but rather as a people's representative, with his own sources of information and contacts, quite separate from the official circuit;
- in area-directed policy projects, the democratic supervision by the Council undergoes a shift: from taking decisions itself, as the highest organ, to a sponsorship with regard to the democratic manoeuvrings surrounding the projects.'
[26]
Administration by negotiation and enforcement
From many research publications it has become known that negotiations between businesses and the authorities do not only take place during the permit-granting process, but also during the enforcement of the permit, once granted. [27] Most competences to impose sanctions are not fixed under Dutch law. The administrative organs involved have discretionary powers. As I will explain below in the section concerning toleration, it is possible to tolerate certain non-compliances of regulations. Case law, by the way, takes the position that there is a 'duty in principle' to enforce and that toleration is to be exercised in special, particularly temporary, cases. It should not come as a shock that in enforcement, too, there are examples of administration by negotiation.
A large consortium of contractors is given the job of widening an important motorway after a public procurement. It is a considerable assignment. The day after the announcement the company placed a site office in a field that was ideally positioned. The civil servant from the Building and Housing Inspectorate of the small municipality involved comes in for an inspection at the precise moment that the floor is being laid and indicates that there could be a problem in connection with an LPG filling point of a nearby petrol station. Back behind his desk the civil servant involved comes upon the rule that certain buildings, like the site office, are not allowed to be situated within a range of 30 metres of an LPG filling point. The site office is situated at approximately 5 metres' distance. An additional problem is that the rule does not address those erecting the site office, but rather the owners of the petrol station. In other words: because of the placement of the site office the petrol station is breaking the law. The civil servant immediately indicates that the office must be removed and issues a so-called pre-warning: a letter to the effect that the competent administrative organ intends to decide to sanction if the office is not removed. A negotiation process begins, in which the municipalities, experts, advisers, the consortium, the manager of the petrol station and the oil company are involved. A complicating factor in the negotiation process is that the petrol station will shortly be moved to a location on the new approach and exit of the widened motorway. Investments in the relocation of the LPG filling point are therefore not to be expected. In the end it takes more than a year for the administrative organ involved to issue a formal sanctioning decision (administrative enforcement order).
A business situated on a canal is gradually changing its activities. People living in the neighbourhood are complaining. The environmental permit is rather dated. An increasing number of ships arrive discharging bulk goods, among which scattering products, such as bone meal, onto the landing quay. The meal is shovelled mechanically from the ship into some kind of funnel onto a conveyor belt and the open conveyor belt transports it to a hall further on, where it is poured out. These activities go against the environmental permit and the zoning plan. The neighbours have made a formal request for enforcement and the administrative organ concerned proceeds to enforce. First, a decision to tolerate is taken with the same content the environmental permit to be granted is expected to have. The decision contains regulations to combat the scattering of the bulk goods and to alleviate the nuisance to those involved (reducing the nuisance to the affected parties is the first priority of the administrative organ). At the same time, the company is requested to make a valid application for an environmental permit (the company keeps being late in submitting the necessary documents and reports). In conclusion, it is indicated that enforcement action will be taken against everything that is in violation of the regulations and is not expressly tolerated. A procedure to take a sanctioning decision is also underway with regard to the violation of the regulations in the zoning plan. The company is regularly inspected and it also becomes clear that it is not complying with the toleration decision. The toleration decision is subsequently repealed and in its stead a decision is made to impose an obligation under forfeiture of a penalty. In it all storage and transhipment on the landing quay and the discharge into the hall is prohibited. To make matters worse, the high-risk bone meal (BSE) has begun to get heated in the hot weather and, also on instructions of the fire brigade, the heated bone meal is immediately despatched to an incinerator. This took over a hundred lorry rides. During this process, the company made repeated attempts to induce the municipality to lenience pending the granting of the environmental permit and there was frequent contact. It was not enough to move the municipality to abandon its enforcement action.
In administrative practice, not every known transgression of a norm results in a sanction. The Commission for administrative and private law enforcement (the Michiels commission), for instance, writes that:
'It is often impossible, unnecessary and at times even undesirable that every violation of a certain legal norm is acted upon. Impossible, because too many violations are committed (at least of some norms) in order to be able in all circumstances to take counter-action; unnecessary, because random checks and sanctions may work preventively; undesirable, because there may be other, more important interests involved which oppose enforcement. Incomplete enforcement is thus partly inevitable, partly unproblematic.'
[28]
'However, a situation where legislation in force is not enforced at all is bad for the image of the law and goes against legal certainty. This is why said Acts or sections of Acts must be repealed. This is in any case true for obsolete and faulty legislation, but sometimes also for (rather too) symbolic legislation.'
[29]
'1. That supervision is becoming increasingly administrative in character contributes to the verifiability of the required information on paper. Physical supervision will, however, always remain necessary. (
)
2. Administrative supervision does not detract from the fact that the administrative authorities and businesses will have to agree on certain matters. Consultations and negotiations about the permit application are becoming even more intensive. The underlying idea is that this way enforcement can be less intensive.
3. Enforcement becomes more effective and even reaches a higher plane. In addition, the manner of supervising is agreed on beforehand with businesses and these agreements must be laid down in a 'supervision plan'. The agreements cease to operate in the case of gross negligence or serious environmental damage. In such cases, criminal legal and/or administrative legal action is possible.
4. A foundation of trust has to be developed as between businesses and public authorities; matters need to be open to discussion. From this it is clear that instances of consultation and negotiation will sooner increase than decrease in the implementation stage, also in the preventive stage of compliance supervision. A constant flow of mutual agreements is subsequently entered into, either or not laid down in the environmental permit or in notes or schemes that are connected in some way to the permit.'
[32]
'For the purpose of effective enforcement, it is not only the relationship between businesses and public authorities that becomes relevant, but also that between permit granters and supervisors.'
Old-fashioned physical enforcement is being replaced by 'remote control'. Especially in the supervision of large companies a shift is taking place from administrative control to administrative control of company (self) control. This also means that the need for and practical importance of negotiations between administrative authorities, supervisors and the company increases.
To punish or persuade [33]
Together with Wilthagen, Aalders wrote on administration by negotiation and the regulation of working conditions and environmental care. [34] Thereby they among other things dealt with enforcement in systems of self-regulation:
'Frequent interaction between the inspectorate and the addressee of the norm results in increased compliance with the legal norms. Thereby it is important that the enforcing organ is 'responsive' towards the environment to be enforced. Responsive enforcement means convincing a company, persuading it and making it come round. This requires a form of enforcement that does not exclude the threat of sanctions (deterrence) but rather includes it in the normal package of measures ranging from consensual to threatening responses to violations. (
) A fundamental notion in responsive enforcement is that the company to be inspected is urged into self-regulation, which somehow takes over the control function (internal company control). The interests of the authorities need to be integrated into the company's interests, thus creating involvement in association.'
[35]
3.3 The position of the citizen in government decision-making
In accordance with Dutch law, the citizen is able to influence government decision-making (in more or less formalised ways) as follows: submitting petitions, [36] public inquiry, [37] making a request or application, using the right to be heard, [38] and lodging an objection.
Section 3:2 GALA and the specific regulations just cited concerning the preparation of decisions serve to fulfil the duty to weigh interests pursuant to Section 3:4, first subsection, GALA. [39] For a proper evaluation of interests it is necessary to have available some knowledge of the interests to be weighed. There is also a connection between Section 3:2 GALA [40] and the justification principle, which has mainly been codified in chapter 3.7 GALA. If insufficient knowledge is available, decisions cannot be sufficiently justified. Insufficient knowledge in the preparation of a decision means that the ensuing decision lacks a proper factual basis.
Rule of speciality
The question which interests are allowed to be weighed in the making of a decision should, according to Dutch law, be answered in accordance with the rule of speciality. [41] According to this rule, an administrative competence can only be used exclusively to represent the special interest the legislator created the competence for. Especially in complex decision-making [42] friction with this rule may arise.
Objection
The main rule in Dutch administrative law and that of administrative procedure is that the interested party must first lodge an objection with the administrative body that has issued the contested order, before it can lodge an appeal with the administrative court. The procedure for objections offers rather more possibilities for administration by negotiation than proceedings in the administrative court. [43] After the order has been taken, the interested party that disagrees with the order should make an objection to it within six weeks. Usually, in practice, a pro forma notice of objection is sufficient, with a short indication of the key facts. This practice makes use of the possibilities provided by Articles 6:5 and 6:6 GALA. [44] The administrative body must give the submittant of a notice of objection the opportunity of adding the required information to the notice of objection before it declares the notice of objection inadmissible on this ground.
Before an administrative body decides on the notice of objection, it must allow the interested parties the opportunity of being heard (Article 7:2, first section, GALA), unless this is not necessary because the notice of objection is manifestly inadmissible or manifestly unfounded (Article 7:3 GALA). The main rule is that interested parties are heard in each other's presence (Article 7:3 GALA) and that a report of this is drawn up (Article 7:7 GALA). Witnesses that have been brought and other experts may be heard, and further documents may be presented up to ten days before the hearing. The administrative body itself [45]can conduct the hearing, or a so-called administrative committee (Article 7:5 GALA) or a committee on notices of objection (Article 7:13 GALA) which presents its advice to the administrative body that made the order. If the hearing is conducted by the administrative body or by an administrative committee, then a decision has to be made on the objection within six weeks. If the hearing is conducted by the advisory committee on objections, then the decision must come within ten weeks. The administrative body may defer the decision on the objection for a maximum four weeks (Article 7:10, third section, GALA). Further deferment is possible, in so far the submittant of the objection agrees to this and other interested parties are not injured in their interests or they agree to this (Article 7:10, fourth section, GALA).
If the objection is admissible, on the basis of this, reconsideration of the contested order takes place. The decision on the objection should show an ex nunc review on the lawfulness as well as on the aspects of suitability of the decision. Unlike the administrative court, neither the committee on objections in its advice nor the administrative organ in its decisions on the objection need restrict themselves to a test of reasonableness or a reticent review: they may undertake a complete review. In practice, advice from a committee on objections carries relatively great weight. This advice must be given in writing at the same time as the report of the hearing. There is a heavier obligation for the administrative body to provide reasons if it wishes to differ from the advice (Article 7:13, seventh section, GALA). For reasons of insurance alone, many administrative bodies - especially provincial and municipal ones - have a committee on objections which, in any case, reviews the 'most serious' orders (spatial planning, environment etc.)
The procedure on objections has two functions: offering legal protection and offering the administrative body the possibility of reviewing the order fully. In the objection procedure, the administrative body is obliged to weigh all interests again fully and also to take all new facts, information and regulatory measures (ex nunc review) into account. There is also the possibility, within the framework of this, to look at alternatives together with the partners to the negotiation, if necessary.
'During the objection, parties can explore whether interested parties, which were seated at the negotiating table, are prepared to accept another order, possibly one that is less attractive to them, 'in exchange' for acceptance of the final result of the negotiations by others. There is a mediating role reserved for the objection committee in revealing the various options. If, then, the parties cannot reach an agreement themselves, it is the task of the committee on objections to adopt a position on this in its advice'.
[46]
3.4 Undertaking given by public authorities
In administration by negotiation, public authorities will, at a certain moment, give undertakings. The principle of legitimate expectations entails that, under certain circumstances, these undertakings are binding. [49] There can even be the question whether undertakings must be regarded as orders, for which there is legal protection. In considering the legal merits of administration by negotiation, it is important to determine whether and to what extent government officials are competent to make binding statements in the negotiating process.
given on competent authority
The starting point is that undertakings have to be given on competent authority and within the limits of the law.
'In principle, it is the case that an administrative body is only bound to fulfil expectations which it or an authorized agent has raised legitimately. The implication of this is to prevent the government organization, which is maintained partly by rules of jurisdiction, from being disrupted and to ensure that control of government action is made possible '
[50]
Konijnenbelt sums these up as follows:
'a. If the effect of a principal of sound administration should lead, in a certain case, to having to act against the letter of the statutory provision, then it must, in the first place, concern a material principle; in practice, it sometimes appears to be about a principle of equality or of material care, usually, however, it is about the principle of legitimate expectations. Naturally, all conditions must be fulfilled before appeal can be made to the principle in question; (
)
b. In the second place, interests of third parties or the general interest may not be impaired. Because of this, granting of permits and such like is almost never allowed if the statutory provisions are incompatible with this: the permitted action will generally have some effect on other persons or on the physical surroundings, and the requirement for the permit has been set precisely in the interests of these persons or of the surroundings. Giving, nevertheless, a permit illegally would be in conflict with legal certainty in respect of these third parties. This leads to appeal on a principle of sound administration 'contra legem' being, in practice, almost only likely to succeed when it is a question of a time limit being exceeded which is not an inconvenience for third parties or when it is a question of a financial relationship between government and citizen (taxation, social insurance, pensions, salaries, subsidies, damages). (
.)
c. Finally, the
damage, caused by a possible violation of the principle involved, must be - if it concerns a financial relationship -
determined satisfactorily. [52]
Are undertakings orders? [53]
Orders are written administrative decisions by an administrative body, containing a juridical act under public law (Article 1:3, first subsection, GALA). The question whether an act is an order is important for the question which norms apply to this act and for legal protection. An undertaking is indeed legally relevant (it can bind an administrative body), but is not a juridical act or a juridical act under public law. Whether it is binding depends on the weighing of interests between the general interest and the interest of the party to whom the undertaking is given. The undertaking has therefore no intended direct legal effect. A number of norms that apply to orders also apply to acts other than orders. Undertakings must then, for example, be founded on careful examination of the facts and interests involved (Article 3:1, second subsection, in conjunction with 3:2 GALA). When an undertaking is given, the principal of proportionality must be taken into account (Article 3:1, second subsection, in conjunction with 3:4, second subsection, GALA).
3.5 Administration by negotiation in administrative law
Administration by negotiation - or, as some would have it: reflexive steering or co-operative steering [54] - is increasingly the practice and, in my opinion, not just in the Netherlands. Dutch literature usually does not write about the phenomenon of 'administration by negotiation' in a negative or deprecating way. Of course it is pointed out that there are dangers involved in the type of administrative decision-making which presumes the consent of other parties. The view that Dutch administrative law is characterised by reciprocity [55] has been dealt with firmly in the literature. [56] In many areas, especially where the opposite party to the government represents less social power (the welfare recipient, the alien applying for admission, the institution dependent on government subsidies) the horizontalisation is not as strong in many cases than in areas where the opposite party represents more social power, or where the government needs the other party. The negotiation process takes place mainly with an organised opposite party, but it may also be that the partners in the negotiation meet due to a problem that is to be solved.
In somewhat less recent literature on administration by negotiation a number of problematic aspects of administration by negotiation was pointed out. Administration by negotiation supposedly posed a threat to democracy; the law as the foundation and guideline for administration by negotiation would be unacceptably marginalised; it is on a tense footing with the principle of legal certainty and undermines the possibilities for democratic influencing and control. A problem is further that there is the danger that certain interested or involved parties are excluded from the negotiation process, or that representatives take part in the negotiation process who are not representative or who enjoy insufficient support among their following.
It is however possible to choose forms of administration by negotiation which are adequate to meet the objections against it. If I am correct Dutch administrative law requires that these forms are chosen. The authorities are bound by undertakings entered into on competent authority, but the third party is not kept out in the sense that he must be considered in the weighing of interests. When the administrative authorities fail to accord timely consideration to the interest of a third party, it, together with the other partners, runs the risk that the compromise so laboriously reached will not be upheld by the courts. The same risk threatens the administrative authorities when it involves non-representative organisations in the negotiations.
In the following, we shall see that the authorities are not free to cross a public law regulation with a private law agreement. Here, one should also think of the public law regulation of public inquiry, the hearing of interested parties and objection. Above we have seen that it is possible to adduce forms of administration by negotiation which enjoy widespread support and whereby all involved were already at an early stage in the decision-making process given the opportunity to voice their concerns.
The researchers involved formulate the following as the outcome of an interdisciplinary study of administration by negotiation:
'Our preliminary judgement (
) is that under circumstances of complex social problems, administration by negotiation which could be called problem-directed and which develops an organic regime, is very well able to unite efficacy and properness and is thus well advanced towards legitimacy. Especially the capacity to help a society with a remarkable plurality of world views and value frameworks along this road to a common definition of problems, appears to be a strong point from a legitimacy perspective.
Question is, however, whether the support attained in a network reaches beyond the participants themselves. How do the followings react? That did not used to be the question so much before as it is now, where categories of people are involved that are more ad hoc and less fixedly and 'totally' bound in organisations. And further: does this support cover the whole of society, also encompassing the public which was not (in-)directly represented? From a legitimacy viewpoint the remarkable openness and informality of the network give rise to considerable tension with the need for democratic control, legislative steering, publicity, legal protection and legal certainty. The legal position, at least the interests, of third parties may be affected by this network steering without these restrictions being subject to the guarantees flowing from the law, and from the testing of administrative decisions against the law. This calls for reflection on the verifiability of administration by negotiation.'
[57]
The people's representatives and the courts must be able to monitor administration by negotiation. The researchers argue that in administration by negotiation politics loses its prerogative. Those to whom the formal procedural administrative law side of democratic legitimatisation is the central focus, will have great difficulty in accepting administration by negotiation, according to the researchers. [58] However, in the end they arrive at the conclusion that democracy is most of the time not formally at stake (the results are presented, a decision must be made in order to give formal shape to the results). During the process the number of channels between the parties to the negotiations and the democratic organs are extremely limited. This has the effect that de facto there are other arenas in which 'politics is practised'.
'In these arenas interests are selected and admitted, the proper representatives of these interests designated, content and significance of the relevant interests determined, and on that basis evaluations carried out which lead to a coherent policy plan with its own power to permeate society. This is the exercise of de facto political authority. If its democratic content is to be guaranteed it is not enough to hope for openness of the process and for sufficient personal initiatives on the part of council members and third parties. The openness (to the public) of the decision-making process and the chances of participating in it for third parties and for members of the representing bodies must be made concrete. Only then it will be more or less guaranteed that politicians and third parties will be able in time to localise and criticise or influence the starting points and emerging evaluations at the start of the policy-shaping process and during its course. In other words, all interests involved must be offered equal opportunities to influence the shaping of the outcome. As many interests and perspectives as possible must be able to gain a place at the negotiating table. Traceability and permeability appear to be the fundamental preconditions in this context to prevent forms of social democracy, like administration by negotiation, from side-tracking forms of formal democracy. The traceability can be increased by expressly organising the policy-shaping process concerned at a certain stage, such as when in a start-up voluntary agreement participants, objectives, procedure and rules of play, mandates, relationship to the representative organs and to publicity, adjustments, dispute rules, etc., are laid down and made public. This to us seems the consequence of the (
) loss of the prerogative of politics in the field of policy that has been created through forms of administration by negotiation.
The above is mostly aimed at administration by negotiation 'replacing' legislation or other strongly general decisions. The kind of administration aimed at different outcomes than (replacing) formal legislation deserves such setting of frameworks for reasons of publicity and inspectability of policy-making and for the purpose of subsequent legal protection.'
[59]
In the end, it boils down to the researchers establishing that completely horizontal administration is impossible; even administration by negotiation requires vertical government elements: ultimately, many cases will call for the enactment of a law, regulation or other decisions. It is, however, still determined that:
'Administrative Holland is on its way to new participatory forms of administration with a mix of vertical and horizontal elements entirely its own, requesting its own forms and which constitute as yet an alien element in administrative law dogmatics.'
[60]
4 voluntary agreements [61]
4.1 introduction
For a long time, it has, of course, been perfectly normal for one government authority to consult other government authorities and the representatives of involved groupings in society in the development of policy and the implementation of implementation measures. It may also be expected that undertakings are given by both sides during this consultation. Increasingly, this consultation leads to agreements being set down in a document, the voluntary agreement. [62] Administration in the Netherlands makes a great deal of use of this to put its policy into effect. It is a popular instrument for shaping policy by a 'horizontal administration', [63] which is a form of administration in which authorities determine and carry out policy in a way that is less hierarchical and that is based more on equality with the parties involved.
'Achieving consensus is more important, the character of consultation becomes more evidently one of negotiation (
) Against the background of this 'horizontalisation' of the relationships, it is more understandable that suitable forms are sought, to be used either besides or instead of the better known unilateral administrative activities. (
..) Accepting a compilation of unilateral activities can also obscure the coherence of the activities to be carried out by the other parties and the unity of the package of measures that have agreed on. A voluntary agreement expresses not just this coherence and unity in a better way but it also gives expression to the more equitable relationships experienced by the parties'.
[64]
terminology
If we look briefly at the literature on the agreements, which are central to my contribution, then the large numbers of definitions is immediately noticeable. [65] In the attached instructions in translation, voluntary agreements are described as:
'any agreement or body of agreements, howsoever they may be called, entered into between the central government and one or more contracting parties, which concern or partly concern the exercise of public law powers, or and otherwise directed towards or partly directed towards the realisation of central government policy' (instruction 1).
I suggest that we base our treatise on the description that has just been given, also when the description - contrary to the case in the instructions just mentioned - is used for agreements with other government authorities than the Dutch National Government as party.
distinctions
In Dutch literature not only are diverse concepts used to specify voluntary agreements but also distinctions between them are made in diverse ways. Two influential distinctions are the one made by Van Ommeren and the one made by Zijlstra. Van Ommeren distinguishes according to the lagal character of the agreement involved, according to the party to the agreement and in the relationship of the voluntary agreement to regulatory measure. [66] Zijlstra distinguishes voluntary agreements according to the relationship to public law regulatory measures, according to parties and according to the object of the agreements. The way in which Zijlstra distinguishes the agreements according to the object is an interesting one:
| 1. | agreements which relate to the use of private law powers ( in particular the right of ownership) on the part of the government, in Dutch literature often called policy agreements;
|
| 2. | agreements that relate to the use of public law powers on the part of the government (agreements on powers), to be classified as follows:
|
| 3. | agreements containing undertakings concerning the application of public law powers;2. agreements which include the exercise of public law powers in themselves;
|
| 4. | agreements to which the government is a 'party' (signatory) but which do not contain any undertakings on the part of the government. [67]
|
In the following I am first going to discuss the legal character of voluntary agreements (4.2), as well as the requirements which may be set for the validity of these agreements (4.3). After that I will discuss the question whether and how performance can be demanded of that which has been discussed in the voluntary agreement (4.4) and I will give attention to the position of third parties.
4.2 the legal character of voluntary agreements
4.2.1 introduction
Dutch administrative law knows no general ruling on public law agreements. Dutch private law does know, however, a general regulatory measure on private law agreements. [68] An agreement or obligatory agreement is a multilateral juristic act in private law. Only persons holding legal rights in private law are entitled to perform such a juridical act. On the part of the government, only those sections of government possessing legal personality are entitled to perform private law juridical acts. Administrative organs are not private law legal personalities. [69] The Dutch government is entitled to perform private law juridical acts, such as concluding agreements, but cannot ignore public law in this. [70] In other words, in agreements to which the government is party, a mixture of public and private law applies.
'Voluntary agreements are agreements that are rather doubtful. . (
.) Voluntary agreements have something shadowy about them'.
[71] 'A negative characteristic, which I regard as a
naturale, is that the agreement is not set down in the known manner known in private law of a reciprocal, obligatory agreement, or in the manner in public law of the joint scheme'.
[72]
An administrative organ can make commitments which, on the basis of the principle of legitimate expectations, are in theory binding (see § 3.4). In Dutch law, the question whether the principle of legitimate expectations entails that an administrative organ is bound by an undertaking is answered on the basis of the following sub questions: a/ are there justified expectations on the part of the citizen, b/ does the general interest entail that the individual interest of the citizen must yield to an act by the government in accordance with the expectations? The balancing consideration in the last sub-question is regulated by the principal of proportionality (Article 3:4, second paragraph, DCC). A citizen can derive expectations from an agreement or voluntary agreement, for example because the government gives undertakings in it. Thus, a voluntary agreement can lead to a binding relationship by virtue of private law (obligation of the government) and a binding relationship by virtue of administrative law (commitment). The binding relationship on the basis of private law is discussed in § 4.2.2 and that on the basis of administrative law in § 4.2.3. In the Netherlands, the basic principle applies that taking steps in private law may not imply any unacceptable thwarting with the way in public law. In certain circumstances, the private law obligation must give way to an obligation under public law not to act in accordance with this binding. I will discuss this rule in § 4.5.
Finally in § 4.4.3, I shall pay attention to the question whether a voluntary agreement can be a decision in the sense of Article 1:3 GALA. Whether a government activity is a decision is important for the range of applicability of the norms contained in the General Administrative Law Act and for access to the administrative court.
4.2.2 voluntary agreement and the private law agreement
In practice, in voluntary agreements, the degree to which parties are bound to the agreements made and the legal basis for this is left to one side. The instructions for voluntary agreements (9 and 14) necessitate that there is the greatest possible clarity. If a voluntary agreement is encountered in which it is not explicitly stated what kind of binding is intended, the lawyer has to determine the character of this. He must ask whether the agreements set down in the voluntary agreement create obligations [verbintenisscheppend]. It is usually the case that the parties, with the agreements, have made declarations of intention which are in agreement and which are interdependent. It is more difficult to determine whether the parties had legal consequences in mind with their agreements. Frequently, the strange thing about these kinds of agreements is that often no legal relationship of a binding nature was intended. [73] Of course, it depends on the voluntary agreement whether the parties did indeed envisage a legally binding relationship when it was concluded.
Voluntary agreements are often binding for nothing more than making a certain effort (obligation to perform to the best of one's ability [inspanningsverbintenis ], obligations to provide a certain result [resultaatsverbintenissen] occur much less frequently. [74]The 'soft' nature of voluntary agreements can often be deduced from this. [75] Many voluntary agreements have the quality of a 'gentlemen's agreement'. [76]In Dutch literature, this kind of agreement is often called an unreal or pseudo agreement. It is characteristic of this kind of agreement that the legal consequences arising from it are not enforceable at law: they are natural obligations. [77], [78]
A voluntary agreement is a juridical act in private law, not only when it may be regarded as an private law agreement with the obligation to guarantee a certain result and/or an obligation to perform to the best of one's ability, but also if it must be regarded as a 'gentlemen's agreement', an agreement with natural obligations. In other words, even when the parties set down in a voluntary agreement that the agreements are not binding or are expressly not intended as a private law agreement, they have carried out an act or a private law juridical act. The government body which is party to a voluntary agreement must comply with public law.
4.2.3 voluntary agreement, decision and undertaking
In a voluntary agreement, the government can give undertakings that are relevant for the decision to be taken after the voluntary agreement. In certain cases, the voluntary agreement itself can be an order. Finally, it may be asked whether a decision to enter into a voluntary agreement is an order.
The principle of legitimate expectations
The principle of legitimate expectations may under certain circumstances lead to the administrative organ that gives undertakings having to act in accordance with this undertaking. [79]
I derive from Nicovier [80] a sliding scale of activities in which a decreasing amount of trust can be derived. This scale has been developed with the following points:
'1. Juridical acts aimed at creating rights for an individual citizen generally count for more in the application of the principal of legitimate expectations than other juridical acts or than actual action;
2. An act which is intended to inspire trust in general counts for more than an act which is not intended to do this, but from which expectations may be derived'.
[81]
| 1. | an expiring or once-only administrative decision; [82]
|
| 2. | an agreement between a citizen and an administration concerning the way in which the administrative authority is exercised;
|
| 3. | an administrative decisions in which the rights and obligations of the citizen are set down for a longer period;
|
| 4. | a concrete and individual undertaking concerning the way or the proposed way of exercising administrative authority;
|
| 5. | information both specific and concerning the individual on the way in which administrative authority should be carried out;
|
| 6. | actions of the administration in which the legal position of the citizens is not defined for the individual but in general;
|
| 7. | the actual deeds or non-activity of administrative organs in accordance with policy;
|
| 8. | giving general information on the way appropriate regulations should be applied;
|
A voluntary agreement, to be more specific an agreement on authorities, is a source of aroused confidence of considerable weight. [83]
Can a voluntary agreement be an order? [84] This question is important for the direct applicability of provisions from, specifically, GALA and for access to the court. [85] It is generally accepted that a voluntary agreement as such cannot be an order. It can be the case, however, that a voluntary agreement comprises an order. An example of this is the toleration agreement in which the administrative body declares that it will tolerate (toleration declaration) [gedoogverklaring]. A declaration of toleration is regarded as an order (administrative decision [beschikking]) in Dutch law.
4.3 requirements for legitimacy of voluntary agreements
According to general opinion in the Netherlands, government is entitled to conclude agreements. Voluntary agreements can contribute to the predictability of government actions. [86] Of course, the authority to conclude agreements is not unlimited. Requirements are set for the use of voluntary agreements by government.
Zijlstra: [87]
| 1. | government must be authorized to make agreements on the subject of the voluntary agreement;
|
| 2. | government must have discretionary power or power of judgement;
|
| 3. | the voluntary agreement may not thwart a public law regulatory measure in an unacceptable way;
|
| 4. | the voluntary agreement may not (otherwise) conflict with the law, including general principles of law.
|
It is evident that an administrative organ can make binding agreements for the authorization of another administrative body. It is important, however, that on the part of government all bodies are represented and in the correct way. A complicating factor in this is that government bodies are entitled to conclude private law agreements but administrative bodies are not, whilst government bodies cannot make binding agreements on public law powers.
In other words, in a voluntary agreement that entails a binding relationship, both in private law and public law, both the government legal person involved as well as the administrative organ involved have to be party on the side of the government: State and Minister, Municipal authority, as well as the Mayor and the Council of Mayor and Aldermen. In literature, the dogmatic difference is pointed out with respect to the government as party to voluntary agreements between the person holding legal rights under private law and the person holding legal rights under public law. Usually there is the addition that the difference is not so important in practice, among other things because, where there is an agreement to which an administrative body is wrongfully the only party, judges are inclined to attribute to it to the legal person of which the administrative organ involved is part. [88]
Voluntary agreements may only be concluded insofar government has discretionary powers in the exercise of the powers by which contracts are made. [89] The statutory system must give the administrative organ the scope to give undertakings, (in most cases:) to act under private law. Government may not act under private law, if in doing so, it abuses its power or an actual position of power, or in conflict with the law or thwarts the law in an unacceptable way, or acts contrary to the general principles of sound administration. This applies both to voluntary agreements, which can be regarded as an agreement principally binding under private law as well as for 'gentlemen's agreements'. Gentlemen's agreements are not outside the application of law and unwritten law. [90]
In principle, therefore, it is not possible for government to enter into voluntary agreements on the exercise of non-discretionary powers. Also, if government undertakes in a voluntary agreement to grant a permit or permission for an action which cannot but lead to a refusal of the application on the basis of the relevant regulatory measures, this undertaking is not admissible. This also applies for such an undertaking in which the other party takes on fewer or less far-reaching commitments, than result from a permit or an exemption on the basis of the relevant regulatory measures under public law. [91]
When there is no discretionary power, then a voluntary agreement is still conceivable in the situation in which the administrative body has power of judgement. In this voluntary agreement, just as is the case with policy rules, an explanation of vague terms can be given. The government can state in this how it interprets certain statutory provisions. Here, it must still be born in mind that it is, in the end, the court that determines how these provisions have to be interpreted. Review by the court of an administrative body's scope on policy is more reticent. This also has consequences for the way in which the court involves the contents of a voluntary agreement in the exercise of a power under public law in which there is a question of discretionary power. This also applies for regulatory measures. [92]
Examples of voluntary agreements with an agreement in conflict with the law are the Cultivation under Glass Voluntary Agreement [glastuinbouwconvenant] and the Allocation of Housing Accommodation Voluntary Agreement [woonruimteverdelingsconvenant] of Papendrecht Municipal Authority. [93]
The Voluntary Agreement on Cultivation under Grass was concluded between the Higher Water Board [Hoogheemraadschap] of Delfland and the Industry Board for Agriculture [Landbouwschap]. Its aim was to reduce the polluting discharges of crop protectors and nutrients in the Westland. The restriction of the number of discharges could take place on the basis of the just quoted Pollution of Surface Waters Act, were it not for the fact that all the parties involved deemed this unworkable. It was a matter of 4200 permits for which compliance could not be checked. For this reason, the parties sought an alternative in the voluntary agreement. The aim was to bring about an 80 % reduction in the emissions before 30 September 1994. The section in which the Higher Water Board pledged to be reserved in its power of granting permits was declared void because of conflict with the law, the mandatory provision of the Pollution of Surface Waters Act.
In the Allocation of Housing Accommodation Voluntary Agreement of the Municipality of Papendrecht [woonruimteverdelingconvenant] [94]the granting of permits was transferred in actual fact -materially - to a private organization. The Municipal Authorities do not have the power to do this; the voluntary agreement is in conflict with Article 1 of the Housing Accommodation Act, in which - insofar it is relevant - it is against the law to put independent housing, as described in further provisions, into use or to give into use, unless, before it is put into use, the Mayor and College of Aldermen have given written permission to the person who wishes to occupy the accommodation.
A voluntary agreement that includes an undertaking on the implementing of powers in which the government has no discretionary powers is void. In administrative law proceedings, the voluntary agreement should then not be taken into consideration. In private law proceedings, the court will determine that there is a question of an juridical act in conflict with a mandatory provision and such an juridical act is then void. [95]
Unacceptable thwarting
Voluntary agreements may not, just not be in conflict with the law, but they may not also thwart public law regulatory measures in an unacceptable way. This requirement arises from the doctrine of two ways, which has caused many pens to be put to paper in the Netherlands.
The core ruling is that of the Windmill ruling. [96]
Windmill was the owner of a factory that produced fertilizers containing phosphates. She discharges an amount of gypsum annually into the Nieuwe Waterweg, which is the property of the State. Despite the fact that Windmill possesses the necessary permits under public law, the State refuses to grant permission. The State entered a claim by the civil court to ban the discharges into the Nieuwe Waterweg, as long as Windmill did not possess a 'permit under private law' for use of this water against payment of an annual fee of NLG 1.25 per cubic meter of discharged gypsum slurry. For the State, it was a question of this fee. The core consideration of the Dutch Supreme Court is still quoted in Dutch literature and is as follows:
'It concerns here the question whether the government, in the case it has been granted certain powers to promote certain interests in a public law regulatory measure, may also promote these interests by using the powers to which it is in principle entitled under private law, such as the powers derived from the right of ownership, the power to conclude agreements under civil law or the power to enter a claim by the civil court on the grounds of an unlawful act perpetrated against it. When the regulatory measure under public law does not provide for this, then the answer to the question whether the powers under private law thwart this regulatory measure in an unacceptable way is decisive. In this attention has to be paid, among other things, to the content and purport of the regulatory measure - this can also be deduced from its history - and the way in which and the degree to which the interests of the citizens are protected within the framework of the regulatory measure, and all this against the background of other written and unwritten rules of public law. Furthermore, it is also important whether the government can achieve a similar result by using the regulatory measure under public law as by using the power under private law, since, if this is indeed the case, this is an important indication that there is no place for the private law approach'.
The criterion as to thwarting of the Supreme Court now appears in the picture, if the law itself does not indicate whether the application of private law, in our case concluding voluntary agreements, is admissible. In the case of our subject, it is certainly so that safeguards of the position of third parties play a major role in this criterion.
Voluntary agreements may not thwart the statutory opportunities concerning citizens' participation and other procedural safeguards, such as the obligation to seek advice or definitions on the supervision of administrative organs. It is a question of taste, and we see the differences in taste in the literature, [97] whether a voluntary agreement that thwarts these public law aspects may be considered to be in conflict with the law or should be considered as an unacceptable thwarting of the regulatory measure under public law. [98]
The rulings in Hydro Agri and Kemira Pernis are an example of a question where agreements in a voluntary agreement came into conflict with procedural rules of public participation, consultation and advice. [99] The Minister of Transport and Communications had concluded voluntary agreements with these two petrochemical companies concerning the reduction of discharges of waste-water and waste gypsum in the Nieuwe Waterweg and the Meuse; whereby the undertaking was made that the granting of a permit on the basis of the Pollution of Surface Waters Act would be made dependent on the reduction in discharges which was to be achieved in the light of the voluntary agreement. A permit is granted and in the ruling in the appeal lodged against this, the Afdeling geschillen (the Division of administrative disputes) of the Raad van State:
'A new permit is [
..] a new permission from which it can be deduced that, at that moment, there were no dominant objections to the total of activities applied for. The decision for this requires therefore a full assessment [
.] In this assessment, the objections that have been lodged should be included as well as the environment protection insights as they exist at the time the decision is made on granting the permit. Undertakings on the part of the grantor of the permit made to the applicant in a voluntary agreement or otherwise do not fit in this system of granting permits. Third parties are not involved in the giving of these undertakings and it is not known yet what is required by environment protection insights at the time the permit is actually granted. These undertakings cannot therefore [
.] put to one side the nature and the scope of the essential assessment of the application. Taking into consideration that the defendant has only extremely summarily checked the application for a permit, with a misjudgement of these statutory basic principles, the Division is of the opinion that the disputed decision, in this connection alone, must be quashed. (
.)'
two two-way doctrines
It has been pointed out in the literature that two doctrines of two ways are applicable in relation to voluntary agreements. As well as the two-way doctrine in the choice between the private law approach and the public law approach (the private law two-way doctrine), there is choice between the Joint Regulations Act and the voluntary agreement. [100] Konijnenbelt, who introduced the doctrine, talks of the public law doctrine of two-ways. [101]
On the basis of the Joint Regulations Act, it is possible to call regulatory measures (public law agreements) into existence to which municipal councils, provincial authorities, district water boards, the State, other public bodies and legal persons are party. Under such a regulatory measure, new public bodies can be called into existence. Public law powers can be transferred to such an appointed organ under this kind of regulatory measure. These are all possibilities that are much too weighty for the parties entering into voluntary agreements. It is possible, however, to create a 'bare' basic joint scheme or 'administrative regulatory measure'. This is a regulatory measure whereby no public body is created and no public law powers are transferred. For such an administrative regulatory measure, there are a number of safeguards/safeguards that do not apply in the conclusion of a voluntary agreement.
'Now the Joint Regulations Act recognizes these safeguards whilst they do not exist in administrative voluntary agreements, then a public law two-way doctrine should hold that there where a voluntary agreement and a basic joint scheme could lead to comparable results, the choice for the construction of the basic joint scheme is compulsory. The philosophy behind the modern two-way doctrine: choosing that approach that leads to the best result when attention is paid to both the aspects regarding safeguards as well as to the instrumental aspects, is still equally relevant for the choice between two public law approaches as for the choice between private law and public law.
[102]
Conflict with principles of law
We have already seen that a mixture of public and private law applies to voluntary agreements. Whether a voluntary agreement is an agreement under private law with enforceable obligations, a gentlemen's agreement, an agreement under public law, or a different kind of agreement, government actions are always governed by public law (Articles 3:14 DCC and 3:1, second paragraph, GALA). [103]
Zijlstra rightly points out that an important aspect of voluntary agreements is the scope of the performance which the other party to the government undertakes.
'There is the danger that the government makes misuse of its position of power by requiring more of the other party than is reasonable, in exchange for a certain use of its powers'.
[104]
It goes without saying that, when voluntary agreements are concluded, no misuse may be made of a power (Article 3:3 GALA), although it is not a simple matter to determine whether an act in conflict with the principle is not also an act in conflict with the law. With the applicability of the stated stipulations, instructions and principles, it is ensured - in any case in the observance of them - that, before the voluntary agreement is signed, it has been ascertained which interests of third parties are at issue, which third parties should be involved in the voluntary agreement [107]and that the interests of third parties are sufficiently considered in the contents of the voluntary agreement.
The principle of justification (motiveringsbeginsel) also applies to volunatry agreements, although the similarly applicable declaration in Article 3:1, second paragraph, GALA has no bearing on section 3.7, [108] in which the general explanatory provisions are defined. [109] Here the unwritten principle of justification complements the part-codification in GALA.
Voluntary agreements can conflict with the principle of equality. Government must give similar cases the possibility of entering into the voluntary agreement. [110]
In addition
Powers may only be delegated if there is a statutory basis for this. Therefore, a voluntary agreement in which a government obligation in fact amounts to delegation is not admissible without statutory basis. The obligation is void (Article 3:59 in conjunction with 3:40 DCC). [111] According to the maker of the constitution, the private law acts of government bodies must be regarded as a vertical relationship, so that the restricting clauses in the constitution must be observed. The use of voluntary agreements is therefore governed by this clause. For fundamental rights, set down in treaties, the restricting clauses that are set down there must be observed. [112]
4.5 The action for performance of voluntary agreements
The public authorities are, in principle, bound by voluntary agreements. It makes no difference, in principle, here whether the voluntary agreement is being brought in in an action under administrative law or under civil law.
In a civil law action, an action for performance of a voluntary agreement can be brought against the government. This kind of action is admissible, unless it amounts to an action against an order, for which there is a legal procedure with sufficient guarantees available under administrative law (priority rule). [113] If the administrative procedure has been available and not used, then the administrative court can in principle take the lawfulness of the order (formal legal force) as its starting point. If this is not the case, then the administrative court is free in its judgement. In the question whether the government may be compelled to performance of an agreement, such as a voluntary agreement, then the following considerations by the Supreme Court in its judgement of 23 June 1989 [114] are important:
'It is not impossible that such an action will have to be rejected, and the other party will have to agree to accept damages, on the grounds of unforeseen circumstances of such a kind that the other party, according to standards of reasonableness and fairness, may not expect unaltered maintenance of the agreement. This could be assumed, in particular, when there is sufficient justification for this result in view of the circumstances - which could include new insights not taken into account in the agreement, necessitating an amendment in policy. In this, also, attention must be paid to the nature of the agreement, the character of the task of the government in the performance now invoked by the government body, and, when a change in policy is concerned, the nature and the weight of the interests in society served by the change in policy.'
There is little difference between the exception to the obligation to fulfil the performance undertaken in an agreement, formulated here by the Supreme Court and the exceptions to the binding requirement in a same kind of undertaking, accepted by the administrative court. It must be emphasized that non-performance is an exception both in private law as well as administrative law, also for the government. If such an exception is accepted, then, in many cases, the government is liable to pay damages.
The government can also demand performance from its other party. This approach is not possible under administrative law, since, in that case, only the citizen may be the complainant. In such a case then, the government must turn to civil law. And here, as already mentioned, the two-way doctrine plays a role. This applies, in particular, to the obligations in an agreement that could also be imposed by means of public law, for example regulations on permits. [115] If a voluntary agreement is an alternative for regulations, then, according to Zijlstra, this situation usually does not occur. [116]
He adds to this: 'Moreover, it is more or less unlikely that the government will take action for performance in the civil court; in many cases, it will choose the instrument of regulation to still try to reach the desired aim with unilateral measures.'
[117]
4.6 The position of third parties in voluntary agreements [118]
The fact that members of society are involved in policy is certainly regarded as one of the advantages of concluding voluntary agreements. There is, however, the danger that third parties will be pushed aside, they will be 'horizontalized' to one side. [119] The fact that the interests of third parties may be lost sight of when voluntary agreements are concluded is described as one of the greatest dangers in Dutch literature. [120] There are a number of Instructions for voluntary agreements to deal with this, of which Instruction 12 is the most important. This instruction fits in with the codification of parts of the general duty of care (zorgvuldigheidsbeginsel), careful examination (zorgvuldig onderzoek) in the General Administrative Law Act and the principle of proportionality (Article 3:4 GALA) On the basis of this provision, the administrative organ is obliged to gather the necessary information concerning the relevant facts and the interests to be weighed. It must weigh the interests directly involved in the decision insofar there is no limitation arising from a statutory provision or from the nature of the power to be exercised. [121]
We have already seen that the interest of third parties pays an important part in the question whether a voluntary agreement means a thwarting of the public law regulation (Two-ways doctrine). The position of third parties is, therefore, to some extent protected by this doctrine. The principle of equality entails that every interested party should in principle have the opportunity of joining the voluntary agreement (see Instruction 8, section 3). The Instructions further recommend including the possibility of joining the voluntary agreement after it has been concluded (accession ruling). Furthermore, publication of the voluntary agreements is an important safeguard for third parties (Instruction 24).
Free-riders
But what about third parties that do not wish to take part? The problem of free-riders, of the 'laughing bystander', [122] is referred to in literature on voluntary agreements with considerable regularity. It has been suggested that the generally-binding-declaration is used. This would then achieve that the agreements in the voluntary agreement apply not only to the parties concluding it but also to third parties. [123] This is not possible without a statutory basis. [124]The working group Evaluation of Instructions for voluntary agreements did not think it necessary to call for this kind of statutory regulation.
4.7 Voluntary agreements and European law [125]
In its advice on Voluntary agreements of 10 April 1992, the Commission paid explicit attention to the voluntary agreement as implementation instrument in community directives for the examination of legislative projects. [126] According to the Commission, there is limited scope for implementation by voluntary agreements and it concludes therefore that, in general, a voluntary agreement is not a suitable instrument for the implementation of community directives, unless the directive itself determines otherwise. 'The main thing is that the Member-State involved is itself responsible and remains responsible for correct and timely implementation. Implementation should be given form by means of mandatory rules of internal law, and do justice to the requirement of legal certainty'.
In a reaction to this report, the Dutch government has been more forthcoming. Now that Article 249, second section, EC-Treaty has given the Member-States the freedom to choose the form and the means in the implementation of directives, the government does not exclude that directives will be implemented by voluntary agreements, even if the directive contains no stipulations on this.
'Based on its responsibility and accountability for punctual and correct implementation of directives, the Cabinet is of the opinion that there could be special situations in which a voluntary agreement might appear to be a suitable instrument of implementation. In particular, when a directive concerns a very limited circle of involved persons, and when it is not, in principle, subject to amendments, and when, moreover, a voluntary agreement is a suitable alternative to regulations, then implementation by means of a binding and legally enforceable voluntary agreement can be a more reasonable way.
And in that case, just as with implementation by means of regulation, justice will have to be constantly done to a number of concrete preconditions, which are contained in Articles [10 in conjunction with 249, second subsection EC-Treaty] and the case law of the Court of Justice. Thus, the voluntary agreement in question must, in any case as regards contents, be consistent with the directive and it must ensure the objective of the directive punctually and permanently and in a sufficiently precise way. Furthermore, there must be safeguards that, ultimately, the voluntary agreement is legally binding for all parties concerned and that performance of it can be enforced by law. In the case the directive also creates rights for third parties, then there must be sufficient, proper possibilities for legal protection for them. In this connection, the voluntary agreement must, moreover, be made sufficiently known, and this can be ensured, in any case, by publication of it completely in the Government Gazette [
Staatscourant]. In addition, account must be taken of the progressive development within the framework of the EC, necessitating amendment of the voluntary agreement in question or, in the absence of this, to the promulgation of further regulatory measures on the part of the government. Furthermore, reference should be made, in the voluntary agreement in question, or in the publication on it, to the directive or directives, the implementation of which, either wholly or partly, is intended in the voluntary agreement or jointly in the voluntary agreement. Finally, voluntary agreements, in accordance with the standard provision in directives for this, should also be notified to the European Commission as an implementation measure.'
[127]
With an announcement to the Council on environmental voluntary agreements and the European Parliament of 27 November 1996 on environmental voluntary agreements and recommendation 96/733/EC of 9 December 1996 [129], the European Commission has indicated that environmental voluntary agreements can be instruments of policy, with which a contribution can be madeto the realization of environmental policy, in a cost-effective way, by promoting an active approach from industry. [130] The Commission has indicated it wishes to promote the use of environmental voluntary agreements. The recommendation concerns the field of environmental policy, but it seems likely that this recommendation will also be of importance for other areas of policy. [131]
In the Recommendation, the Commission formulates the following guidelines: [132]
'When implementation by means of environmental voluntary agreement is explicitly permitted, in directives in the field of the environment, the Member-States should observe the following guidelines:
The agreements must always:
be in the form of an agreement enforceable in private law or in public law;
include quantified objectives and interim objectives with the appropriate time-limits;
be made known in the National Gazette of the country in question, or in an official document that is equally accessible to the public;
provide for checks on the achieved results, regular reporting to the competent authorities and sufficient information for the public;
be open to participation by all partners who wish to comply with the conditions of the voluntary agreements.
If necessary, the agreements must:
set effective regulations for gathering, assessing and checking the achieved results;
determine that the companies taking part make information on the implementation of the voluntary agreement available to third parties, on the same conditions as those based on Directive 90/313/EEC of the Council of 7 June 1990, concerning free access to environmental information for government bodies;
impose sanctions for non-performance, such as fines, punishments or revoking permits;
When environmental voluntary agreements are concluded, the competent authority provides that there is supervision of progress on the grounds of the agreement and that additional measures are taken in time, if this is necessary to comply with the obligations arising from the directive.
As party to the agreement, the national authority should also provide that the agreement is in accordance with the Treaty, in particular with the rules concerning the internal market and competition, as well as with Directive 83/193/EEC.
When environmental voluntary agreements are used as a means of implementing community directives, they must be brought to the knowledge of the Commission, together with all information connected with this at the same time as other national measures which have been set down for the implementation of the directive, so that they can be tested on their effectiveness as a means of conversion.'
[133]
In Dutch literature, a distinction is made between implementation of directives in which, on the one hand, the possibility of implementation of voluntary agreements is explicitly permitted, and of directives which, on the other hand, contain no provisions on this. The case law for the Court of Justice on implementation is described as being very strict, so that the conversion of directives into voluntary agreements shall in many cases encounter objections under EC-law. [137]
The strict case law of the Court of Justice does not apply if the provisions on directives to be implemented contain no rights or obligations for private citizens. There is thus more scope for alternative methods of implementation, such as that by voluntary agreement. Literature over environmental voluntary agreements, which is the dominant subject in this theme, still refers to the directive on drink packaging (85/339) which is no longer applicable. [138]
Van de Gronden and Haverland write, for example: 'In our opinion, there is more scope for the voluntary agreement as a conversion measure for 'vaguely' formulated provisions in directives. It concerns here provisions containing generally formulated objections and which allow the member-states a great deal of policy freedom in implementation. It is difficult for private persons to derive rights and obligations directly from this kind of directive. In our view, alternative methods of implementation like voluntary agreements can play a part in such cases, providing that the objective of the directive in question is achieved.'
[139]
'
The content of the directive provision as well as the
style of the voluntary agreement are therefore determinative for the admissibility of the way it is put into effect in a concrete case.'
[141]
'The usefulness of a (
.) specific reference to the possible use of a voluntary agreement seems to me limited to that of creating clarity. Even
without such an explicit statement, in the case of a directive provision which does not have the intention of rights and obligations for private persons, implementation by means of a voluntary agreement is possible
ohnes weiteres, just as implementation by means of a voluntary agreement with legal conditions is possible, in the case of a directive provision which does have the intention of rights and obligations for private persons.'
[142],
[143]
5 Alternative dispute resolution in administrative law
5.1 general
Recently, Dutch literature has paid attention to alternative dispute resolution in administrative law. Naturally, other areas of law have also been examined, in particular private law where experience with this has been build over a considerable period of time. The literature sums up a number of the advantages of alternative dispute resolution in comparison with the regular decision-making process and law of administrative procedure. Administrative disputes concern non-legal technical problems: decibels, risk contours, economic feasibility and such like. Dispute resolution by a body that offers this expertise could offer advantages. It can happen on occasions that the administrative judge does not decide on the material dispute but on formal faults (procedural errors, faulty mandate regulations, failing to seek compulsory advice). The outcome of a case at the administrative court is uncertain and can take a long time. It is conceivable that the court gives several different decisions on just one legal issue. [144] Alternative dispute resolution could offer a solution to this.
Within the framework of the national project, ' Mediation beside court sentences', the administrative sectors of the courts in Amsterdam and Zwolle are carrying out experiments at the moment with alternative dispute treatment in administrative decisions. [145] The court in Zwolle now has five years' experience.
Literature on administrative law distinguishes the following types of alternative dispute resolution:
| · | negotiation;
|
| · | intermediation;
|
| · | binding advice;
|
| · | arbitration;
|
| · | advice.
|
In this section, I am going to restrict myself to the last four types. The first type has, in fact, already been dealt with. We will see that binding advice and arbitration in administrative law are the most problematic legal concepts.
5.2 Advice, binding advice and arbitration
arbitration
With arbitration, a dispute is put before an arbitrator on the basis of an agreement. Arbitration is a form of private dispensation of justice. Arbitration clauses occur in voluntary agreements (for example, the voluntary agreements on social renewal, on education [146] and on packaging). [147] The general provision on arbitration is set down in the Dutch Code of Civil Procedure [Rv]. The key provision is Article 1020. In this provision, the legislator wanted to deliberately leave the possibility open for the development of arbitration in public law. [148] An important objection to this provision on arbitration under public law is Article 1022 Rv, in which it is stipulated that access to the courts is relinquished with arbitration. It is very much the question, however, whether - whether with an agreement or voluntary agreement or not - the right to objection and appeal can be waived.
Pront-van Bommel expresses criticism of the case law of administrative judges (with the exception of the tax divisions of the court who do accept the possibility of a waiver) on waiver of the right of appeal. They do not give an unambiguous answer to the question whether this is possible, and, if such a waiver is regarded as explicitly contrary to the law, the only answer given is the vague consideration that there can be no waiver because this is contrary to public order. [149]
'For the legitimacy of [alternative dispute resolution], it is important that government dispensation of justice is primarily intended to offer protection under law to those seeking justice. Furthermore, it is important in this that parties to the process occupy autonomous positions and that the parties are free to choose another form of legal protection other than government dispensation of justice. Taking these three aspects into consideration, it seems that [alternative dispute resolution] is legitimized. The primary task of the administrative court, in actual fact, consists of providing legal protection to those concerned. Moreover, those concerned occupy an autonomous position in the process. They determine whether legal action is taken and on what matter. (
.) Important specific characteristics of the law of administrative procedure are the (
.) position of third parties in it, the erga-omnes effect of the decisions of the administrative courts, the short time limits for objection and appeal, the doctrine of formal legal force and the unilateral character of legal protection under administrative law. In my opinion, these characteristics do not affect the legitimacy of [alternative dispute resolution] in administrative law disputes, but do entail the necessary uncertainty. Parties still run the risk that a dispute remains unsolved or that the result of the [alternative dispute resolution] is thwarted by the objection or appeal lodged by another.
[150] Binding advice
Binding advice [bindend advies] is an agreement determining the legal relationship between parties, in which Articles 7:900 and following DCC have to be taken into consideration. This agreement cannot serve as a replacement of an decision. It can only bring an obligation into existence when a certain decision is taken. [151] Insofar the agreement has the exercise of a public law power as its subject, it is an agreement on powers. [152] An administrative body is in principal obliged to carry out the agreement determining the legal relationship between parties, unless the agreement is contrary to public order or unless a ground for justification later appears for nonfulfilment.
'New facts or circumstances can sometimes be considered as such, or the non-consideration of relevant interests from third parties and other important interests, possibly new policy. The administration authority shall, moreover, be obliged in principle to compensate for the damage suffered by the other party if there is nonfulfilment. The interested party is also in principle obliged to comply with the agreement on the legal relationship between the parties, unless this would have very unreasonable consequences for it. In that case, an appeal by the administration on the agreement would be contrary to Article 3:4 GALA'.
[153]
'It amounts to the administrative body giving responsibility to others or giving it beforehand, when binding advice is entered into, and this is at variance with the principle of legality and the norm derived from this "no delegation without statutory basis"'.
[154]
5.3 intermediation [155] and mediation
With intermediation, the parties try to reach an agreement with the help of an independent expert third person. Unlike a judge, an intermediatior can view a conflict on all its merits. Intermediation is directed towards bridging the differences between parties. If the intermediation progresses successfully, the parties can determine the outcome of the dispute themselves'. [156]
'There is a great deal of consultation and negotiation in the Netherlands. On the basis of this custom, there is already a tradition of listening and balancing to an important degree. This constitutes a good basis for mediation. How can mediation contribute to structuring the consultations? The contribution mediation can make is to give a specific procedure which can give structure to the listening and consultation process and can ensure that this does not become endless'.
[157]
'With intermediation an attempt is made to allow the parties [to take up] such an attitude towards their own position and that of the other or others that real consultation is possible. This can take place in all kinds of ways. Intermediate action can be undertaken by the parties themselves, they can appoint one or more third parties, in any shape or form. The style the intermediator uses can vary: pushing and pulling, offering solutions, or more expectant. No other demands need be made of the intermediator than the expectation that he will act in a competent manner'.
[158]
'Characteristic of mediation is: the presence of an expert, independent mediator; voluntariness of the parties; the conclusion of a mediation agreement; the setting of a time-limit; exploration of the possibilities for solution; inventarization of differences and agreements; directed towards the future; the outcome is set down in an agreement in which the legal relationship of the parties is determined'.
[159]
Mediation in the decision-making phase
In many fields, in particular that of spatial planning, environment and economic development, it is hardly conceivable that some form of mediation is not used during the realization of large, complex projects with a diversity of interests and a very miscellaneous group of parties concerned.
'In conflicts with several parties, structured consultations can be advantageous, even though mediation is then difficult. In such cases, it has been seen that a good procedure is necessary in order to find a solution. With other complex decisions, a lot of time can be saved by setting down step by step the facts on which agreement has been reached'.
[161]
A number of objections to mediation in the decision-making phase have been advanced. Mediation can prolong the decision-making procedure unnecessarily and it is sometimes an expensive activity - certainly, when there is the assistance of lawyers or other expert specialists. Mediation leads to an individual solution between parties and under circumstances this can act as a violation of the unity of law. The interested third party could be left out of the picture: a danger present in every form of administration by negotiation. For this reason, more care must be taken in conflicts where several parties are concerned. The interested third party must be involved in this and the norms for careful examination and a prudent weighing of interests (the principal of proportionality) have to be observed. [162] Mediation is usually confidential and this gives the impression of back-room politics and this is at variance with the idea of the rule of law.
'The confidentiality is intended to allow other options to emerge than those already on the table. This does not turn the mediation into a temporary secret society. In principle, the result of the mediation should be set down in an agreement known to every one'.
[163]
'In a mediation that concerns negotiations on interests, confidential discussions may be necessary to give the mediator insight into the nature of the interests (caucus). This kind of information / Such information gives the mediator the opportunity to present new options - or at least newly offered options. During the process of mediation, the administration could acquire more information than it would otherwise have done, for example as a result of the confidential atmosphere. This is not a problem if the mediation is successful but, if this is not the case, it can distort relationships. These could lead to biased decision-making by the administrative body or to incorrect proceedings if application is made to the court. (
) There possible problems underline the necessity of proper arrangement of the mediation'.
[164]
Mediation by the judge
For some time now, the court in Zwolle has been conducting an experiment on mediation. The judge proposes mediation. As soon as an appeal has been lodged with the court and it is deemed that the case involved would be suitable for mediation, then a personal appearance of the parties is arranged, possibly to acquire information. By means of questioning, an assessment is made whether there is room for negotiation or whether there are problems as to communication or approach. Contra-indications for mediation are that there is talk of new legislation, or talk of a precedent effect and/or there is the question of bonded authority. [165] After the parties have been given information on mediation and the project in Zwolle, they are invited to a personal appearance to give information (Article 8:44 GALA). [166]
On the grounds of the summons on the basis of this provision, the parties are obliged to appear in court. The summons also notifies that it concerns the discussion of mediation. The judge-mediator is usually in charge of the parties' personal appearance in court.
'Here lay important keys to the success of mediation. The decision to accept the court's offer to start the course of mediation should be taken in the greatest possible freedom. Parties must know what they are entering into. They have to be well informed. For this, it is important that the person conducting the talks or in charge of the appearance in court should have a clear picture of the advantages and disadvantages of the course of mediation. Furthermore, it is desirable that this person has no interest himself in the decision by the parties to take up the offer. If the parties accept the offer, then agreements are made on the way of working (
) and mediation can start. A mediation room is available where the discussions can take place in an informal atmosphere with tea and coffee, round the table. There is every opportunity to involve those in the process who are important for the solution. Fathers, mother-in-law, other relations, legal counsellors, the director who the argument was with (although not a formal party in the proceedings), the colleague who was the cause of the problem situation ...'
[167]
'Nobody will refuse to co-operate in finding a solution without a degree of doubt, if they are asked to do so by the judge dealing with the case'.
[169]
6 Toleration
6.1 general
Since Van Buuren's [170] inaugural lecture in 1988 as professor in administrative law at the University of Utrecht, considerable attention has been paid in legal literature in the Netherlands to the phenomenon of 'toleration'. The examples in literature are mostly from environmental law and administrative law for spatial planning, but this does not mean that toleration is only seen in these sectors. It must be born in mind that toleration is regarded in the Netherlands as an act of enforcement. Toleration and the way in which governments with this instrument of enforcement deal with the responsibility for compliance with statutory provisions have recently attracted renewed attention as a result of the great firework disaster in Enschede and a fire in a bar in Volendam.
On 13 May 2000, Enschede was hit by a disastrous explosion at the SE Fireworks' fireworks factory. Twenty-two people lost their lives, more than 900 people were injured. An entire district was wiped out.
On 1 January 2001, just after midnight, fire breaks out in the 't Hemeltje bar in Volendam. The Christmas decorations, consisting of fir branches hanging from almost the entire ceiling, caught fire when sparklers were lit. The bar, which is the top one of three bars situated one above the other, is packed with about 300 guests. There are four times as many guests present as the regulations allow. Fire spreads very quickly right through the bar in the dry fir branches. The fire spreads so quickly that the small fire extinguishers available cannot be used to put out the fire in the early stages. Burning branches fall down on to the guests, causing injury to many of them. Enormous panic breaks out. There is a great deal of smoke and the lights fail. In the crush to leave the building, many are injured and three people lose their lives. This is partly due to the inadequate provision of escape routes. The fire was extinguished after several minutes. There are hundreds of people, in particular young people, with burns.
In both cases, compliance with legislation and regulations left a lot to be desired.
The Oosting Commission in its report on the firework disaster:
'In recent months, the media have designated the council's leniency towards SE Fireworks' infringement of the regulations as toleration. In the view of the Commission, this does too much honour to what actually happened and to what should really be defined as a lack of thoroughness. The Commission regards toleration as the result of a well-considered decision (toleration decision) by the competent authorities, which has come into being in a sound way, and which states precisely under which conditions and for how long the infringement is permitted, while the use of powers of enforcement is waived.
In the case of SE Fireworks, there was no such situation. Inspecting officials, who were also responsible for dealing with an application for an environmental permit, actually admitted that the infringement continued because they refrained from enforcement. There does not appear to have been any report by them to the competent authority, the Burgomaster and Municipal Executive, or the member of the executive responsible, let alone an administrative assessment which has led to a toleration order.
(
)
The Commission is aware that the situation sketched is almost certainly not unique for our country. It concerns not so much toleration in the - fairly strict - meaning just defined of an explicit order, but more an actual allowing something to happen en continued violation of the norms without intervention. In the social debate, which developed after the Firework disaster, and which was reinforced after the disaster in the bar in Volendam, it appears that such an actual refraining from enforcement is widespread in our public administration.
[171] The Commission pointed to 'an administrative culture of refraining from enforcement'. The Commission notes that indeed people and organizations value freedom and own responsibility, but that people look to the government most expressly in calamities. 'Government has to remain at a distance, as it is called. It is remarkable that the tone of debate in society immediately changes as soon as an incident occurs. (
) The question is then put of where the government was and what it has done to prevent the calamity and it is asked to restrict the consequences of it as much as possible'.
[172]
'In the current policy of toleration, there is no place any more for 'silent toleration' or for 'letting an unlawful situation just to take its course.' Toleration should always take place explicitly and it should always be of a temporary nature. Toleration must be embedded in measures to put its temporary nature into effect and should always be accounted for with the representative body that sets the rules, for which the infringement is being tolerated. These conditions have already been distinctly defined in the memorandum 'Limits to toleration'. (
.)
The Cabinet emphasizes that, in order to bring about the cultural change/reversal advocated by the Commission, enforcement of sound policy should be based on and be characterized by a rational approach aimed at a responsible level of compliance. It is desirable that the administration annually sets priorities for the enforcement in a definite enforcement plan on the basis of a risk-analysis. The most important policy choices in enforcement should have democratic legitimacy. The enforcement administration should also give a regular account of the state of affairs to the representative body. This democratic responsibility reinforces the incentive to carry out actual supervision and to put enforcement into practice. A system of responsibility less directed to just the rules and more to policy in the shape of inspection and enforcement activities, ensures that an administration that has to give account moves closer towards inspection and enforcement. The administration and the various executive enforcers are then constantly seeking the necessary co-operation. They call each other to account for the agreements made. In practice, instruments that safeguard enforcement are developed further and adapted. If infringements are detected, action, if necessary, can be taken by ending the unlawful situation or having it brought to an end and by punishing the offender'. [173]
In the meantime, toleration, in particular the 'culture of toleration' has acquired considerable significance politically. For a relatively long time, in the Netherlands, lawyers have been paying attention to the enforcement of law, in which the mutual harmony and possible combination or undesired cumulation of enforcement instruments in criminal, administrative and civil law play an important part. [174] From the passages just quoted, it appears that law enforcement is still a topical theme. In law enforcement also, it is a matter of administration by negotiation. Toleration is the most pronounced form of this. Hereafter, in the discussion, I will restrict my discussion of this to administrative toleration. [175]
6.2 Obligation in principal for enforcement
In Dutch administrative law, it is the case for most powers of sanction that the administrative organ involved has discretionary power. In case law, in particular that in the field of environmental law (environmental law and the law of town and country planning), an 'obligation in principal for enforcement' is assumed.
An example from case law.
The appellant applies to the Council of Burgomaster and Municipal Executive for administrative enforcement measures to be applied against the business activities of Milder (an earth-moving firm), paving the lot with paving stones and building a warehouse contrary to the building permit granted. The Council rejects the application.
[176] The President of the Court in Arnhem quashes the order.
[177]
The appellant appeals in this to the Administrative Law Division of the Council of State, the highest administrative court in these cases. The Division applies the standard consideration: 'If an interested third party explicitly requests action against an illegal situation, only in exceptional circumstances is it possible to relinquish enforcement action. It is a case of exceptional circumstances if legalization is definitely in sight'. Then the Division investigates whether legalization is possible (can a permit still be granted on the basis of the applicable zoning plan?) This could only be possible with a new preliminary design for a zoning policy, but the Division states that: 'the preliminary design of the new zoning plan does not offer a basis for the judgement that legalization of the company's activities is certainly in sight. Considering the seriousness and the long-term character of the infringement of the planning regime applicable there, the circumstance that Milder has started developing his company's activities with the Burgomaster's and Municipal Executive's permission offers no grounds for the decision that there is here such a special case that the relinquishing of enforcement measures is justified. Now that it no further appears that there are circumstances which give rise to that decision it has to be stated that the Burgomaster and Municipal Executive have not been able to decide in all reasonableness to reject appellant's application for enforcement action against the company's activities, which are a serious infringement on appellant's enjoyment of its property. The decision on the objection has been taken in so far contrary to Article 3:4, second sub-section of the General Administrative Law Act.
[178]
The objective of this formulation of the obligation in principle is to impress on administrative bodies that the enforcement competence also requires serious consideration and that, for this reason, an application for enforcement from a third party cannot be treated uncritically.
In a discussion of the ruling by the Administrative Law Division of 15 July 1999, Michiels writes:
'There rests a task and a responsibility of enforcement on the bodies that have been given competence to impose sanctions, but this was always so. Where, before, the Division emphasized the required weighing of interests, now it stresses the greater requirement for motivation: an application for enforcement may only be refused if the body can illustrate that there are good reasons for doing this. This is not so much a different examination, and it is also not a restriction of the discretionary powers, but rather it is saying the same thing but in different words. The discretionary power was always rather limited. Now that emphasis is placed on the requirement to provide motivation, the body must now indicate more clearly than before, why it is using its discretionary power in a concrete case in order to waive enforcement. This makes it more difficult to overstep the existing limits to the discretionary power in a way that is 'judgeproof'. This does not however detract from the existing discretionary power, which must be treated with consideration by the judge in his careful review.'
[180]
6.3 toleration, policy on toleration and toleration agreement
An often-quoted description of toleration is that of Michiels:
'The not taking action on infringement of legal rules by an organ that is, in principle, legally empowered to do this and is actually capable of doing this'.
[181]
'Thus, in any case, it is relevant that the administration is actually capable of acting in enforcement, and this, just as was also indicated with 'knowingly and wilfully', assumes that the administration is aware of the infringement and has the means and manpower to actually act. Since, in practice, the means and manpower are often limited in relation to the number of legal norms which the administration has to see are complied with, the administration will have to set priorities. In order to speak of toleration, however, the administration has to be able to make a real choice between whether to act or not'.
[182]
Moreover, a distinction is made between the situation in which there is toleration without the prospect of legalisation and that in which there is the prospect of legalisation (qualified toleration). Toleration can have a categorical or incidental character, it can be for a limited or unlimited period of time. Toleration can depend on the violation of the legal norm by one person or it can be more dependent on the case.
The following is an example of toleration in relation to the situation with one person. In the Netherlands, in planning policy, it is practice to discourage housing in rural areas and only to allow it to a limited extent. Tied housing is permitted, however, but on strict conditions. On farms in rural areas, it regularly happens that, when the farm is not passed on from father to son, the farm- buildings (a pigsty or cowshed, for instance) are sold, while the old widower-farmer who has lived in the house all his life, keeps the house and lives in it until his death. This occupation is in contrary to the zoning plan for rural areas after the transfer of ownership of the farm-buildings. In many of these kinds of cases, the occupation is specifically tolerated - declaration of toleration - as long as the farmer lives there. When the occupant no longer lives there and/or sells the house, the administration will not permit occupation independent of the farm there and will act in enforcement.
Another distinction is that between full and partial toleration. Full toleration means that the violation will be left just as it is. With partial toleration, there will be partial enforcement against violation of the norm. Recently a reasonable amount of attention has been paid to partial toleration in Dutch literature.
The declaration of toleration in writing is often an order (to be more precise: an administrative decision). [183] There are two arguments that lead to this conclusion. In the first, the declaration of toleration is seen as an undertaking with the legal consequence that no action may be further taken against the infringement. In the second, the declaration of toleration is seen as a refusal given in advance to relinquish the power of imposing a sanction order. The decision not to tolerate a certain violation of a norm is not an order - contrary to the system with 'normal' administrative decisions [184]- because no legal consequences are intended thereby.
An interesting question is whether the administration can command performance of a condition attached to a toleration order with a sanction order. This is not possible for a permit. In the rules and legislation that a system of permits brings into being, it is usually forbidden to act contrary to the permit and its attached conditions. The powers of sanction can usually be applied against infringement of this prohibition. Since, among other things, an administrative decision on toleration cannot be considered the equivalent of a permit, it is not accepted in case law that powers of sanction can be applied when one or more conditions attached to a declaration of toleration are not complied with. In such a case the administrative decision on toleration must be revoked and action must be taken against the violation of the norm covered by the administrative decision on toleration.
The administration can give a declaration of toleration in the form of an administrative decision on toleration or in the form of an agreement. Jurgens distinguishes two approaches in the question of the acceptability of toleration agreements. [185] The first is the approach of the doctrine of two-ways [186]: the toleration agreement must then be compared to the administrative decision on toleration and here too the position of the interested third party plays an important role in the answer to the question whether the toleration agreement signifies an unacceptable thwarting of the way under public law. The second approach is, according to Jurgens, is one in which it is assumed that the toleration agreement always implies an act under public law. A toleration agreement automatically includes an administrative decision on toleration.
'The consequence of this approach must be, in my opinion, that the requirements imposed on unilateral administrative decisions of toleration on the basis of the GALA must also be taken into account in a similar administrative decision on toleration implied in a toleration agreement. When an administrative decision is included in the toleration agreement, this means that normal legal protection under administrative law is available for this'.
[187]
'Only in exceptional cases can toleration be acceptable or even required. There must be the safeguard that the power of toleration is used in a restrained, careful and responsible manner and that toleration is limited in practice to exceptional cases. (
) Toleration is only acceptable:
a. in exceptional cases, b. if limited in duration and/or in time.
Moreover toleration should: c. only take place specifically and after careful identifiable weighing of interests, as well as d. be subject to control.
Toleration can only be acceptable in exceptional cases. Thereby it is still the case that the consideration made by the legislator may not be repeated at executive and enforcement level. In the following situations toleration may be justified or even required: enforcement would lead to manifest / patent unfairness, the interest behind it is evidently better served by toleration, an interest which is more important justifies toleration
The fact that toleration may only be regarded as acceptable in exceptional cases also requires that the degree to which there is tolerated must be limited in scale and/or in time as far as possible. Toleration should not last longer and be on a larger scale than is justified by the unreasonableness that would otherwise occur or is justified by the interest behind it or the more important interest that justifies toleration. If toleration threatens to become large-scale or structural, reconsideration of the norm itself should take place. Under circumstances toleration can be acceptable for longer periods, if and insofar no structural improvement in the norm is possible'.
[191]
6.4 The position of the interested third party in toleration
Since written declarations of toleration are regarded as administrative decisions, the position of the interested third party in these toleration situations is fairly strong. Its position is not greatly different from that in 'normal' administrative decisions, such as the permit. For the two administrative decisions - administrative decision on toleration and permit - the same norms apply in relation to the determination of the relevant facts and interests and the balancing of interests to be carried out. Furthermore, this interested party has the possibility of lodging an objection with the tolerating administrative body and appeal in the administrative court.
In tacit toleration situations, the interested third party can make use of the following, much-used construction. He requests the administrative organ involved to act against the violation of the norm with enforcement measures and sets a reasonable term for this (say: four weeks). If the answer of the administrative body is that it is not going to undertake enforcement, then it is a question of a toleration order for which there is legal protection. If there is no reaction from the administrative organ within four weeks, then it is a case of a decision not taken in time which, in terms of legal protection, can be considered to be the equivalent of an order (Article 6:2 GALA). In other words, a notice of objection can be lodged against exceeding the set time and at the same time an interim injunction can be applied for with the competent court. If again there is no decision within the time set, then according to the same regulation, appeal can be lodged at the administrative court.
With certain forms of implicit toleration, the position of the interested third parties is, however, very weak. If, for example, the administrative body takes an compulsory administrative decision or makes an adstreinte order, and does not put it into effect, [192]then the interested third party usually has no possibilities for legal protection unless it knows to make it clear that this situation amounts to an actual withdrawal of the sanction order.
Noten
[1] The consultative reports were published in: B.J. van Ettekoven, M.A. Pach and I.C. van der Vlies, Alternatieven van en voor de bestuursrechter, Boom Juridische uitgevers, Den Haag 2001.
[2] This means, for example, that the voluntary agreements between public authorities frequently found in the Netherlands will not be considered.
[3] The public law norms regulating this relationship may be subdivided into administrative law, European law and criminal (procedural) law norms.
[5] M.C. Burkens and F.A.M. Stroink, 'Sociale verzorgingsstaat en consensuele besluitvorming',
Nederlands Juristenblad (1980), pp. 743-750.
[6] G. ten Berge, 'Onderhandelend bestuur en bestuursrecht', in H.D. Stout and A.J. Hoekema (eds.),
Onderhandelend bestuur, (W.E.J. Tjeenk Willink, Zwolle, 1994), p. 27. See also H. Stout,
De overheidstoezegging als juridische figuur van onderhandelend bestuur, Working Paper, (Rijksuniversiteit Leiden, 1996), p. 5 and A.J. Hoekema and N,F., van Manen, 'Bewakers van onderhandelend bestuur', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (ed.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), pp. 19-55, especially p. 19.
[7] E. Blankenburg, 'Indikatorenvergleich der rechtskulturen in der Bundesrepublik und den Niederlanden',
Zeitschrift für Rechtssoziologie (1985), pp. 225-273.
[8] S. Pront-van Bommel, H.D. Stout and I.C. van der Vlies, 'Juridische kwaliteiten van onderhandelend bestuur. Onderhandelend bestuur en tegenstellingen in belangen', (Amsterdam University Press, Amsterdam, 1998), p. 33.
[9] S. Pront-van Bommel, H.D. Stout and I.C. van der Vlies,
Juridische kwaliteiten van onderhandelend bestuur. Onderhandelend bestuur en tegenstellingen in belangen, (Amsterdam University Press, Amsterdam, 1998), pp. 9-10 and H. Stout,
De overheidstoezegging als juridische figuur van onderhandelend bestuur, Working Paper, (Rijksuniversiteit Leiden, 1996), p. 6.
[10] S. Pront-van Bommel, H.D. Stout and I.C. van der Vlies,
Juridische kwaliteiten van onderhandelend bestuur. Onderhandelend bestuur en tegenstellingen in belangen, (Amsterdam University Press, Amsterdam, 1998), p. 10.
[11] B.W.N. de Waard, 'De rechter en de onderhandelende overheid', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), pp. 189-213, especially pp. 190-191.
[12] B.W.N. de Waard, 'De rechter en de onderhandelende overheid', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.)
, Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), p. 191.
[13] I intend to include some further examples in the final version of this contribution. The following are considered: the case of the drug addicts' shelter in 's-Hertogenbosch (see R. Weterings, 'Controversial Negotiated Decision-making', in B. de Waard (ed.),
Negotiated Decision-making, (Boom Juridische Uitgevers, The Hague, 2000), pp. 25-45), the Compact City (see R. Weigel, 'The Compact City in the Spotlight of the Law: Dealing with the Paradox of the Compact City', in B. de Waard (ed.),
Negotiated Decision-making, (Boom Juridische Uitgevers, The Hague, 2000), pp. 47-66 and M.N. Boeve and R. Uylenburg,
Het milieurecht van de compacte stad, (W.E.J. Tjeenk Willink, Deventer, 1997)), negotiations in the framework of the legislative process of the Consumer Credit Act (N. Huls, 'De onderhandelende ambtenaar', in H. Stout and A. Hoekema,
Onderhandelend bestuur, pp. 151-165 and N.J.H. Huls
, Onderhandelend wetgeven in de praktijk. Over ambtelijk activisme op middenniveau, (Amsterdam University Press, Amsterdam, 1998)), employment (see E. Sol, 'Onderhandelend bestuur en openbare arbeidsvoorziening', in H. Stout and A.J. Hoekema (eds.),
Onderhandelend bestuur, pp. 167-185 and E. Sol, A.C. Glebbeek, et al.,
Arbeidsvoorziening als onderhandelend bestuur. De positie van derde belanghebbende in een tripartite structuur, (Amsterdam University Press, Amsterdam, 1998)), the manure question (see B. Fluit,
De mest is geen heilige
? De moeizame vervlechting van landbouw en milieubeleid, Working Paper 53, (Recht en Beleid, Leiden, 1995), and, finally, administration by negotiation in environmental permits.
[14] See, inter alia, H.J. Bakker, P.P.J. Driessen and J.J. van den Berg,
Afstemmen en instemmen. Ruimtelijke ordening en milieubeheer; integratie en coördinatie van het omgevingsbeleid op alle overheidsniveaus, (VUGA, The Hague, 1998); P. Glasbergen and P.P.J. Driessen (eds.),
Innovatie in het gebiedsgericht beleid; analyse en beoordeling van het ROM-gebiedenbeleid, (Sdu, The Hague, 1993), and Chr. Backes et al.,
Gebiedsgericht milieubeleid, Report of the working group 'Area-directed environmental policy', Society of Environmental Law, (W.E.J. Tjeenk Willink, Zwolle, 1992).
[15] J. Hendriks, 'Politieke controle en gebiedsgericht beleid', in M.J.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), p. 57.
[16] SPE: Spatial Planning and Environment [
ROM: Ruimtelijke Ordening en Milieu].
[17] Schiphol and surrounding areas, Kanaalzone Zeeuws-Vlaanderen, Rijnmond, Gelderse Vallei, De Peel, IJmeer, Groene Hart, Midden Brabant, Zuidoost-Friesland, Drenthe and Mergelland.
[18] Y.F. van Aart, P.P.J. Driessen and P. Glasbergen,
Evaluatie van het Rom-gebiedenbeleid. Deelstudie Rijnmond, Publicatiereeeks gebiedsgericht beleid, (Ministerie van VROM, 1993), p. vii.
[19] [Duin- en Bollenstreek]. Description taken from J. Hendriks, 'Politieke controle en gebiedsgericht beleid', in M.J.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), pp. 56-74. See also G.M.A. van der Heijden, 'Bestuursrechtelijke zelfcontrole bij onderhandelend bestuur', in the same book pp. 75-88, especially pp. 82-85.
[20] The province of Zuid-Holland, the higher water control corporation [
Hoogheemraadschap] Rijnland, municipalities from the Dunes and bulb-growing area and representatives of the Leiden region as far as public authority representatives were concerned, and representatives of environmental and conservationist societies, of the bulb-growers and of the agricultural industry as far as the citizens' representatives were concerned.
[21] J. Hendriks, 'Politieke controle en gebiedsgericht beleid', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), p. 59.
[22] Teylingen is a citadel in the heart of the Dunes and bulb-growing area.
[23] J. Hendriks, 'Politieke controle en gebiedsgericht beleid', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), pp. 56-74. See also in the same book G.M.A. van der Heijden, Bestuursrechtelijke zelfcontrole bij onderhandelend bestuur, pp. 75-88, especially pp. 82-85.
[25] Hendriks, pp. 63-64.
[26] Hendriks, pp. 73-74.
[27] M.V.C. Aalders, 'Controle en toezicht in het milieurecht', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (eds.),
Omgaan met de onderhandelende overheid. Rechtsstaat, bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), pp. 169-188, especially p. 180. In particular, he refers to K. Hawkins,
Enforcement and Environment: Regulation and the Social Definition of Pollution, (Clarendon Press, Oxford, 1984).
[28] Commissie bestuursrechtelijke en privaatrechtelijke handhaving,
Handhaven op niveau, (W.E.J. Tjeenk Willink, Deventer, 1998), p. 41.
[29] Commissie bestuursrechtelijke en privaatrechtelijke handhaving,
Handhaven op niveau, (W.E.J. Tjeenk Willink, Deventer, 1998), p. 44
[30] Other than the German Verwaltungsverfahrensgestez, the Dutch General Administrative Law Act does not contain a general regulation of enforcement supervision applying in principle to the whole of administrative law.
[31] The developments in the field of and the legal academic debate on enforcement in environmental law serve as important examples and sources of inspiration in the Netherlands.
[32] M.V.C. Aalders, 'Controle en toezicht in het milieurecht', in M.L.M. Hertogh, N.J.H. Huls and A.C.J.M. Wilthagen (ed.),
Omgaan met de onderhandelende overheid. Rechtsstaat, onderhandelend bestuur en controle, (Amsterdam University Press, Amsterdam, 1998), pp. 169-188, especially p. 176.
[33] In reference to J. Braithwaite,
To Punish or Persuade: Enforcement of Coal Mine Safety, (State University of New York Press, Albany, 1985).
[34] M. Aalders and T. Wilthagen, 'Onderhandelend bestuur en de regulering van arbo- en milieuzorg: ontwikkelingen, parallellen en toekomst', in H. Stout and A.J. Hoekema (eds.),
Onderhandelend bestuur, (W.E.J. Tjeenk Willink, Zwolle, 1994), p.. 115-150. See recently on this subject in the field of the environment R. van Gestel,
Zelfregulering, milieuzorg en bedrijven. Naar eigen verantwoordelijkheid binnen kaders, thesis at Tilburg University, (Boom Juridische Uitgevers, The Hague, 2000).
[35] Aalders and Wilthagen, in
Onderhandelend bestuur, p. 139.
[36] Pursuant to Article 5 of the Dutch Constitution everyone is entitled shall have the right to submit petitions in writing to the competent administrative authorities. The provisions reads: 'Everyone shall have the right to submit petitions in writing to the competent authorities.' The recipient administrative organ is not under an obligation to respond. The writer of the petition is not obliged to sign it, anonymous petitions are therefore possible. See hereon inter alia the commentary to this provision by B.J.M. van der Meulen in A. Koekkoek (ed.), De grondwet, (W.E.J. Tjeenk Willink, Deventer, 2000), pp. 86-92; F. Brenninkmeijer, 'Klagen bij de NMa. Een onderzoek naar de rechtspositie van de klager in het mededingingsrecht', in O.J.D.M.L. Jansen, B.M.J. van der Meulen and R.J.G.M. Widdershoven (eds.), Handhaving van de Mededingingswet, (Kluwer, Deventer, 2001), pp. 45-72, in particular pp. 47-48 and C.A.J.M. Kortmann, De Grondwetsherzieningen 1983 en 1987, (Kluwer, Deventer, 1987), pp. 76-78 and H.Th.J.F van Maarseveen, 'Over het Petitierecht', in Beeld van een Goede Vriendschap, pp. 135 and 'Petitierecht in ontwikkeling', Nederlands Juristenblad (1984), pp. 200-205.
[37] De Haan, Drupsteen, Fernhout, Vol. 2, p. 212 describe the public inquiry as: 'the influencing of policy by citizens involved in this policy, at an early stage, within an organised decision-making structure, with a fairly considerable effect on the ultimate decision.' With the entry into force of the General Administrative Law Act, the current Municipalities Act, Provinces Act and Water Authorities Act the public inquiry has been quite widely and generally regulated. The public inquiry has especially taken off in the fields of spatial planning, organisation and management and of social and cultural work. The most frequently found kinds of public inquiry are: hearings, working groups, written and oral inquiries, consultation with private citizens' organisations, and, at the local level. the right to speak at council and commission meetings and the consultative referendum. With far-reaching measures, the consultative referendum has already been used a number of times.
[38] Administrative organs are under a duty to extend to certain persons the opportunity to state his or her views (duty to hear). For run-of-the-mill decisions, the legal duty to hear is worded rather restrictively. When the decision involved is a penalty decision the duty to hear is worded more strongly. A purpose strongly aimed at with the duty to hear in administrative penalties is giving a guarantee. The duty to hear in chapter 4.1.2 GALA expressly focuses on fact-finding in the preparation of a decision. The regulation is an elaboration of the principle of due care (
zorgvuldigheidsbeginsel), the requirement of careful examination (
zorgvuldig onderzoek). Apart from the General Administrative Law Act, mention can be made of the regulation of the environmental impact assessment which is regulated in the Environmental Protection Act.
[39] This provision states:
3.2 When preparing an order an administrative authority shall gather the necessary information concerning the relevant facts and the interests to be weighed.
[40] This article states: 1.
When making an order the administrative authority shall weigh the interests directly involved in so far as no limitation on this duty derives from a statutory regulation or the nature of the power being exercised. 2. The adverse consequences of an order for one or more interested parties may not be disproportionate to the purposes to be served by the order.
[41] Hereon recently R.J.N. Schlössels,
Het specialiteitsbeginsel. Over de structuur van bestuursbevoegdheden, wet matigheid van bestuur en beleidsvrijheid, dissertation at Maastricht University, (SdU, The Hague, 1998).
[42] Concerning the problems of complex decision-making, inter alia, H.P. Heida, F.A.M. Stroink and P.C.E. van Wijmen, Complexe belsuitvorming, preadviezen voor de algemene vergadering van de Vereniging voor Administratief recht, (Samsom, Alphen aan den Rijn, 1998). On 8 March 2000 the Scheltema Commission presented a Pre-draft Connected decisions GALA I Act (see:
http://www.minjus.nl/abeleid/thema/awb/voorontwerpen/vooront.htm). In the pre-draft it is proposed to include in chapter 3.5 GALA (which will become available after the entry into force of the Uniform Public Preparatory Procedures Act) a regulation of the active dissemination of information to the citizen and the co-ordination of decision-making.
[43] See hereafter the section on alternative dispute resolution in administrative law
[44] The relevant provisions state:
6:5 1. The notice of objection or appeal shall be signed and shall contain at least: (a) the name and the address of the submittant; (b) the date; (c) a description of the order against which the objection or appeal is addressed; (d) the grounds for the objection or appeal. 2. A copy of the order to which the dispute relates shall be submitted with the notice of appeal if possible. 3. If the notice of objection or appeal is in a foreign language and a translation is necessary for the objection or appeal to be properly dealt with, the submittant shall arrange for a translation.
6:6 If article 6:5 or any other requirement laid down by act of Parliament for the objection or appeal to be considered has not been complied with, the objection or appeal may be ruled inadmissible, provided the submittant has had the opportunity to remedy the omission within a time limit set for this purpose.
[45] Or also by the administrative body, its chairman or a member of it.
[46] S. Pront-van Bommel, H.D. Stout and I.C. van der Vlies
, Juridische kwaliteiten van onderhandelend bestuur, Amsterdam University Press, Amsterdam 1998, pp. 85-86. See also I.C. van der Vlies,
Horizontaal beslechten, zonder verlies van bezwaar, in: I.C. van der Vlies and S. Pront-van Bommel (ed.),
Van toetsing naar bemiddeling, Kluwer, Deventer 1997, pp. 47-55.
S. Pront-van Bommel, H.D. Stout and I.C. van der Vlies
, Juridische kwaliteiten van onderhandelend bestuur, Amsterdam University Press, Amsterdam 1998, p. 86.
[47] Kamerstukken II [
Parliamentary documents] 2000-2001, 27 563, nos. 1-2. The following key provisions of the proposed legislation read as follows:
7:1a In the notice of objection the submittant can request the administrative body to assent to direct appeal to the administrative court, such contrary to Article 7:1. 2. The administrative body rejects the request in any case if: a. the objection is directed against omitting to make an order in time, or b. another objection has been lodged against the order in which a same request is omitted, unless that other notice of objection is manifestly inadmissible. 3. The administrative body can agree to the request if the case is suitable for this. 4. The administrative body decides on the request as quickly as possible. A decision to agree is given as soon as may be reasonably accepted that no new objections are going to be lodged. Articles 4:7 and 4:8 are not applicable. 5. If the administrative body agrees to the request, it sends the notice of objection, after is has marked it with the date received, immediately to the competent judge. 6. Notices of objection received, likewise, after the agreement, will be sent immediately to the competent judge.
8:54a 1. Until the parties are invited to appear before the court, the court can close the investigation, if continuation of the investigation is not necessary because the administrative body agreed manifestly agreed wrongly to direct appeal with the court. 2. In that case, the judgement provides that the administrative body treats the notice of appeal as a notice of objection. Article 7: 10 is correspondingly applicable.
[48] See for this principle in Dutch law, among others: G. ten Berge and R. Widdershoven, The principle of legitimate expectations in Dutch constitutional and administrative law, p. 421 to 452 and downloadable from: http://www.library.uu.nl/publarchief/jb/congres/01809180/b22.pdf.
[49] S. Pront-van Bommel, H.D. Stout, I.C. van der Vlies,
Juridische kwaliteiten van onderhandelend bestuur. Onderhandelend bestuur en tegenstellingen in belangen, Amsterdam University Press, Amsterdam 1998, p. 11; W.A.M. van Schendel,
Vertegenwoordiging in privaatrecht en bestuursrecht, Kluwer, Deventer 1982, p. 160; Nicovier, p. 470; De Haan/Drupsteen/Fernhout, pp. 112-113; H. Stout,
De overheidstoezegging als juridische figuur van onderhandelend bestuur. Een positiefrechtelijkonderzoek naar de overheidstoezegging in het bestuursrecht tegen de achtergrond van onderhandelend bestuur, Working Paper 54, Rijksuniversiteit Leiden, Leiden 1996, pp. 18-23. She talks of the principle of competency. See also on this P. Nicolaï,
Beginselen van behoorlijk bestuur, Kluwer, Deventer 1990, pp. 223-224 who rejects the formulation of this principle as general principal of sound administration.
[50] See also Article 10.2 GALA: An order made by a mandatary within the limits of his power is deemed to be an order of the mandator.
[51] Van Wijk/Konijnenbelt, Van Male, p. 407. On pp. 394-395 and 408-409, Konijnenbelt indicates that it is incorrect to regard law and principle separate from each other: the administration is bound to both; the principles indicate how a law must be interpreted; it should be a case of 'Prinzipienkonforme Gesetzeauslegung'(p. 395).
[52] See on this, among others H. Stout,
De overheidstoezegging als juridische figuur van onderhandelend bestuur. Een positiefrechtelijk onderzoek naar de overheidstoezegging in het bestuursrecht tegen de achtergrond van onderhandelend bestuur, Rijksuniversiteit Leiden, Leiden 1996, pp.11-12.
[53] A.J. Hoekema et al.,
Integraal Bestuur. De behoorlijkheid, effectiviteit en legitimiteit van onderhandelend bestuur, (Amsterdam University Press, Amsterdam, 1998), p. 328, fn. 8. They refer to N.J.H. Huls and H.D. Stout (eds.),
Reflecties op reflexief recht, (W.E.J. Tjeenk Willink, Zwolle, 1992); Kees Le Blanch,
Milieuzorg in bedrijven. Overheidsturing in het perspectief van de verinnerlijkingsbeleidslijn, Dissertation at Utrecht University, (Centrum voor Beleid en Management, Algemene Sociale Wetenschappen, Universiteit Utrecht, Utrecht, 1996), pp. 56-57; Arthur Benz,
Kooperative Verwaltung. Funktionen, Voraussetzungen und Folgen, (Nomos, Baden-Baden, 1994); A.J. Hoekema and N.F. van Manen,
Typen van legaliteit. Recht en maatschappelijke orde in de twintigste eeuw, (Kluwer, Deventer, 1994), p. 141 et seq. speak of 'co-operative legality'.
[54] An important representative of this view was Hirsch Ballin, an influential administrative law scholar and (first responsible) Minister of Justice at the time of the introduction of the bill of the General Administrative Law Act where this reciprocity makes an appearance in the explanatory documents (see before). See E.M.H. Hirsch Ballin, 'Wederkerig bestuursrecht',
RMTh (1989), pp. 1 et seq.
[55] See in particular L.J.A. Damen, 'Bestaat de Awb-mens?', in
Aantrekkelijke gedachten, (Kluwer, Deventer, 1993), pp. 109-129; see also E.C.H. van der Linden and A.Q.C. Tak (eds.),
Eenzijdig en wederkerig?, (1995).
[56] A.J. Hoekema et al.,
Integraal bestuur. De behoorlijkheid, effectiviteit en legitimiteit van onderhandelend bestuur, (Amsterdam University Press, Amsterdam, 1998), pp. 329-330.
[57] A.J. Hoekema, p. 343.
[58] A.J. Hoekema et al., pp. 343-344.
[59] A.J. Hoekema, et al., p. 365.
[60] I am not going to discuss the subsidy agreement at this moment but intend to include some remarks on this in the final version of this contribution. See for this, among others, M.J. Jacobs,
Subsidieovereenkomsten: een onderzoek naar de rechtsvormen van subsidies, in het bijzonder overeenkomsten, Thesis Free Univeristy of Amsterdam [VU], Amsterdam, 1999.
[61] Commissie voor de toetsing van wetgevingsprojecten, Convenanten
[Committee for the assessment of legislative projects,
Voluntary agreements], Ministry of Justice, The Hague 1992 p.1.
[62] Report on the Working group 'Evaluatie Aanwijzingen voor conventanten
' [Evaluation of Instructions for Voluntary Agreements], Ministry of Justice, 's-Gravenhage February 2000, pp.20-21.
[63] Commissie voor de toetsing van wetgevingsprojecten, Convenanten,
[Committee for the assessment of legislative projects,
Voluntary agreements] Ministry of Justice, The Hague 1992 p.7-8.
[64] Van Wijk/Konijnenbelt/Van Male (H.D. van Wijk,
Hoofdstukken van bestuursrecht, eleventh revised edition by Willem Konijnenbelt and Ron M van Male, Elsevier bedrijfsinformatie, The Hague 1999, pp. 287-302, nos. 100 to 112) regard the agreement as 'perhaps the most fundamental legal concept that we know'. The concept appears not only in private law, but also in public law (constitutional law, administrative law and criminal law). The agreement in public law is the agreement under public law. They use the concept agreement under public law [
publiekrechtelijke overeenkomst] as an umbrella term. They call 'voluntary agreements' 'just ordinary agreements on powers'. De Haan/Drupsteen/Fernhout (P. de Haan, Th.G. Drupsteen en R. Fernhout
, Bestuursrecht in de sociale rechtsstaat, Ontwikkeling, organisatie, instrumentarium, part 1, Kluwer, Deventer 1996, pp. 444-468) make a distinction between private law policy agreements, voluntary agreements with social organizations and public law agreements between governments. In their handbook ('Nicovier') (P. Nicolaï, B.K. Olivier, I.C. van der Vlies L.J.A. Damen en B.J. Schueler,
Bestuursrecht, Factotum, Amsterdam 1996, pp. 175 to 184), in the chapter on the activities of administrative organs, Nicolai, Olivier, Van der Vlies, Damen and Schueler discuss voluntary agreements under the heading 'undertakings, agreements and voluntary agreements'.
[65] They describe voluntary agreements as 'agreements with the intention of binding parties, but which do not have a specific commitment in mind'. They find the term 'public law agreement' for agreements between administrative organs somewhat confusing. They reserve the term 'agreement' for the legal concept in private law. This may also be applied if one of the parties to the agreement is a subject of government. If, in this private law agreement, agreements are made on the implementation of one or more powers under public law, then they choose 'agreement on powers'.
[66] According to the legal character, Van Ommeren distinguishes public law and private law voluntary agreements, voluntary agreements with obligations to perform to the best of one's ability and voluntary agreements with the obligation to guarantee a certain result and voluntary agreements from which obligations are derived with obligations which are enforceable in law and voluntary agreements which may be described as gentlemen's agreements. According to party to the voluntary agreement, Van Ommeren distinguishes between voluntary agreements to which the government is a party on both sides, voluntary agreements in which the government makes agreements with a private person or a private legal person and voluntary agreements with, on both sides, a private person or private legal person as party, but with the government in the background with an important part. In the relationship of the voluntary agreement to regulatory measure, Van Ommeren distinguishes general voluntary agreements (which serve as an alternative to decisions of a general nature (general binding regulatory measures, plans, policy rules and administrative measures)) and concrete voluntary agreements (which serve as an alternative for administrative decisions). Furthermore, he makes the following division: a/ the undertaking is given that a regulatory measure will be achieved, without going into the content of this regulatory measure: only the subject is named; b/ transitional voluntary agreements serve to fill in a gap in regulatory measures. They 'repair' the existing rules temporarily, and this is in expectation of new regulatory measures which still have to come into existence; c/ anticipatory voluntary agreements are those that anticipate new regulatory measures. These voluntary agreements anticipate the future regulatory measures in their content; the new regulatory measures adopt their contents of them as their point of departure as far as possible; d/ supplementary/executive voluntary agreements are voluntary agreements that are not founded on policy guidelines that have been set down in legislation. These voluntary agreements also have the intention of making legislation superfluous. The difference with the previous category is, however, that they are not based on higher documents.'
[67] S.E. Zijlstra,
Convenanten, [Voluntary agreements], preadvies voor de Vereniging voor de vergelijkende studie van het recht in België en Nederland [
preliminary report to the Association for the comparative study of law in Belgium and the Netherlands], W.E.J. Tjeenk Wilink, Zwolle 1994, p. 11.
[68] Chapter 6 of the Dutch Civil Code (DCC) contains a regulatory measure on the general part of the law of obligations. Its Title 5 concerns agreements in general. In the first stipulation in this title, Article 6:213, first paragraph, DCC, we read: 'A contract in the sense of this title is a multilateral juridical act whereby one or more parties assume an obligation towards one or more others'
[69] With the Preliminary draft of the fourth tranche of the GALA, it is suggested that a new fourth sub-section is added to Article 1 1:1 GALA : 'The proprietary effects of a action of an administrative body effect the juridical person to which the administrative body belongs'.
[70] Article 3:14 DCC states: 'a right which a person has pursuant to private law, may not be exercised contrary to the written or unwritten rules of public law. In the General Administrative Law Act, Article 3:1, section 2 of the GALA should be regarded as the complement to this stipulation in the Dutch Civil Code. The relevant article states: 'Divisions 3.2 to 3.5 shall apply
mutatis mutandis to acts of administrative authorities other than orders in so far as they are not incompatible with the nature of the acts'.
[71] Willem Konijnenbelt,
Convenanten als instrument van onderwijsbeleid: mislukte poging of geslaagde vondst. De bril van een jurist, in:
Convenanten in het onderwijs, Preliminary advice for an annual meeting on 22 November 1991 of the Vereniging voor Onderwijsrecht [
Association of Education Law], W.E.J. Tjeenk Willink, Zwolle 1992, p. 27. Van Acht and Damen talk of a 'twilight world' : R.J.J. van Acht and L.J.A. Damen,
Effectieve toepassing van milieuconvenanten. Een juridisch onderzoek naar een optimale binding door milieubeleidsovereenkomsten tussen de overheid en het bedrijfsleven, Centrum voor Milieurecht, Universiteit van Amsterdam, December 1990/April 1991, p. 9. H. Stout,
Het convenanten-sluitend bestuur. Een bestuurswetenschappelijke benadering, in: H.D. Stout and A.J. Hoekema (ed.),
Onderhandelend bestuur, W.E.J. Tjeenk Willink, Zwolle 1994, pp. 45-80, especially pp. 57.
[72] Willem Konijnenbelt,
Convenanten met de gemeente. Fluiten in het schemerduister, Lemma, Utrecht 1992, p. 9.
[73] Often quoted in this connection:: 'Der 'Witz' der Absprachen besteht gerade in ihrer rechtlichen Unverbindlichkeit. (
) Die Bindeswirkung normvertretender Absprachen ist allein politischer Natur und hängt vom Ausmaß der politischen Interessenübereinstimmung und von den politisch-sozialen Sanktionsmöglichkeiten der Absprachepartner ab' (Eberhard Bohne, Informales Verwaltungs- und Regierungshandeln als Instrument des Umweltschutzes, Verwaltungsarchiv 1984, pp. 343- 373, especially p.. 361 quoted from: R.J.J. van Acht and L.J.A. Damen
, Effectieve toepassing van milieuconvenanten. Een juridisch onderzoek naar een optimale binding door milieubeleidsovereenkomsten tussen de overheid en het bedrijfsleven, p. 11. The authors involved indicate moreover that Bohne (and also Hans-Werner Rengeling
, Das Kooperationsprinzip im Umweltrecht, München 1988, p. 68) put forward a very general statement which is open to nuancing. See also R.J.J. van Acht,
Afdwingbare milieuconvenanten?, NJB 1993, pp. 512-517, especially p.. 517.
[74] See a critical look at the tenability of this distincion within the framework of voluntary agreements: J.M. van Dunné,
Moeder maakt geen bastaard, NJB 1993, pp. 480-488, especially p. 485.
[75] F.J. van Ommeren,
Convenanten in soorten en maten, p. 36.
[76] See for 'gentlemen's agreements' in general: B. Wessels, Gentlemen's agreements, [
uitgever?] Arnhem 1984
[77] S.E. Zijlstra,
Convenanten, p. 24 and W. Konijnenbelt,
Convenanten als instrument van onderwijsbeleid, p. 33.
[78] The relevant provisions from the Dutch Civil Code are as follows:
6.3 1.A natural obligation is one which cannot be enforced at law. 2. A natural obligation exists: a. where the law or a juridical act deprives an obligation of its enforceability.
6.4 The provisions of the law respecting obligations apply
mutatis mutandis to natural obligations, unless the law or its necessary implication entail that such a provision may not apply to an unenforceable obligation.
[79] See in relation to administration by negotiation: Helen Stout,
De overheidstoezegging als juridische figuur van onderhandelend bestuur. Een positiefrechtelijk onderzoek naar de overheidstoezegging in het bestuursrecht tegen de achtergrond van onderhandelend bestuur, Working Paper 54, Amsterdam January 1996.
[80] Nicovier pp. 477-478
[82] Reference is made to: M. Scheltema 1975 p. 20
[83] See also Van Wijk/Konijnenbelt/Van Male, p. 364 and De Haan/Drupsteen/Fernhout I, pp. 111-112: 'Concerning legal relationship, agreements and unequivocal undertakings are on one line, albeit that the performance in return that is generally a part of the agreement serves as an extra argument for the binding relationship of of the government body'.
[84] Article 1:3 GALA is the central stipulation: 1.'Order' means a written decision of an administrative authority constituting a public law act. 2. 'Administrative decision' means an order which is not of a general nature, including rejection of an application for such an order. 3. 'Application' means a request by an interested party for an order. 4. 'Policy rule' means an order, not being a generally binding regulation, which lays down a general rule for weighing interests, determining facts or interpreting statutory regulations in the exercise of a power of an administrative authority.
[85] For access to the court, Articles 8:1, first paragraph, and 7:1 GALA are the key provisions:
8:1 first paragraph: 'An interested party may appeal to the district court against an order'.
7:1: 1. The one who has the right to appeal against an order to an administrative court shall lodge an objection against the order before lodging an appeal, unless the order:
(a) has been made in respect of an objection or an administrative appeal;
(b) is subject to approval;
(c) is one approving another order or refusing such approval; or
(d) was prepared in accordance with one of the procedures provided in division 3.5.
An appeal may be lodged against the decision on the objection in accordance with the regulations which govern the lodging of an appeal against the order against which the objection was made.'
[86] S.E. Zijlstra,
Convenanten, p. 25.
[87] S.E. Zijlstra,
Convenanten, pp. 25-26.
[88] A.R. Bloembergen,
Overheidsprivaatrecht: schets van een algemeen deel, WPNR (1992), 6047, p. 953, P.F. van der Heijden and I.C. van der Vlies,
De staat van het convenant, NJB 1993, pp. 475 - 478, especially p.. 477 and S.E. Zijlstra, Convenanten, pp. 27-28.
[89] F.J. van Ommeren en B.J. Schueler,
Wordt Nederland een convenantendemoctratie (part 2
). De positie van de derde-belanghebbende, RegelMaat 1992, no. 3, pp. 66-69 and S.E. Zijlstra,
Convenanten, p. 29, See also on this M. Kobussen, De vrijheid van de overheid, thesis KUB, 1993.
[90] F.J. van Ommeren en B.J. Schueler,
Wordt Nederland een convenantendemoctratie (part 2
). De positie van de derde-belanghebbende, RegelMaat 1992, pp. 66-69.
[91] S.E. Zijlstra,
Convenanten, p. 29.
[92] Article 1:3, fourth section, GALA describes policy rules also as general rules, not being a generally binding regulation, concerning the intepretation of legislative provisions on the use of power by an administrative body.
[93] It should be born in mind here that, in the system of the regulation of the General Administrative Law Act, legislation in material sense, legislative provisions aer orders containing generally binding regulations. The regulation of the General Administrative Law Act is applicable in its entirety to this (lower) regulation. It is the case that these orders have a place which deviates from other orders: Chapter 3 of the General Administrative Law Act - principles of sound administration, motivation, publication and such like - does not apply unimpaired and there is no direct appeal against these orders to the administrative court. Article 8:2 of GALA reads: No appeal may be lodged against:
(a) an order containing a generally binding regulation or a policy rule, (b) an order repealing or laying down the entry into force of a generally binding regulation or policy rule, (c) an order approving an order, containing a generally binding regulation or a policy rule or repealing or laying down the entry into force of a generally binding regulation or a policy rule.
[94] See Case Law Department Council of State 5 January 1987, AB 1988, 138.
[95] This is a consequence of Articles 3:40 and 3:59 DCC. Art. 3:40 DCC reads: 1. A juridical act which by its content or necessary implication is contrary to good morals or public order is null. 2. Violation of an imperative statutory provision entails nullity of the juridical act; if, however, the provision is intended solely for the protection of one of the parties to a multilateral juridical act, the act may only be annulled; in both cases this applies to the extent that the necessary implication of the provision does not produce a different result. 3. Statutory provisions which do not purport to invalidate juridical acts contrary to them, are not affected by the preceding paragraph. 3:59 DCC reads:
The provisions of this title
mutatis mutandis to areas of the law other than patrimonial law to the extent that they are not compatible with the nature of the juridical act or relationship.
[96] HR 26 January, AB 1990, 408; NJ 1991, 383.
[97] Conflict with the law: S.E. Zijlstra,
Convenanten, pp. 30-31 and 33.
Onaanvaardbare doorkruising: P.C. Gilhuis,
Overeen hoogheemraadschap, een convenant en de glastuinbouw, Milieu en Recht 1991, p. 257, p. 352; P. de Haan,
Convenanten als vorm van regelgeving, Bouwrecht 1993, pp. 346-355, especially p. 352; P.J.J. van Buuren and F.J. van Ommeren,
Gebiedsovereenkomsten in de juridische praktijk. Onderzoek naar de juridische kaders van gebiedsovereenkomsten, Utrecht, March 1997, pp. 13 -15
[98] The relevant instructions are as follows:
10 1. A voluntary agreement shall not contain agreements, which: a. go against national or international codified or customary law; b. bind the central government to do more than it is able to within the limits of its statutory, discretionary or other powers, or c. exceed the statutory or discretionary powers of other administrative authorities parties to the voluntary agreement. 2. The voluntary agreement shall as far as possible indicate the relationship between the agreements it contains and the statutory arrangements relevant to those agreements.
11 If a voluntary agreement contains agreements on the use of public law powers, which are subject to public inquiry procedures or to advisory procedures, such procedures shall be taken into consideration in the implementation of the voluntary agreement.
[99] Disputes section of administration Council of State 24 May 1991, Milieu en Recht 1992, 20; Disputes section of administration Council of State 1 September 1992, Milieu en Recht 1993, 2 and Chairman Disputes section of Administration 26 September 1991, AB 1992, 283; Milieu en Recht 1992, 18. The examples have been taken from S.E. Zijlstra,
Convenanten, p. 31.
[100] See also the instruction 3 and explanation for voluntary agreements.
[101] Willem Konijnenbelt,
Convenanten met de gemeente. Fluiten in het schemerduister, Lemma, Utrecht 1992, p 21. See also: P. de Haan
, Convenanten als vorm van regelgeving, Bouwrecht 1993, pp. 352-353; S.E. Zijlstra,
Convenanten, pp. 35-36; N.S.J. Koeman,
Bestuursconvenanten en publiekrechtelijke tweewegenleer, in: T. Hoogenboom and L.J.A. Damen (ed
.), In de sfeer van administratiefrecht (Konijnenbelt bundel), Lemma, Utrecht 1994.
[102] Willem Konijnenbelt,
Convenanten met de gemeente. Fluiten in het schemerduister, Lemma, Utrecht 1992, p. 22
[103] Article 3:1, second paragraph states: 'Divisions 3.2 to 3.5 shall apply
mutatis mutandis to acts of administrative authorities other than orders in so far as they are not incompatible with the nature of the acts.' Of the sections mentioned, section 3.2 is of particular importance. The articles included in this state as follows:
3:2 When preparing an order an administrative authority shall gather the necessary information concerning the relevant facts and the interests to be weighed.
3:3 An administrative authority shall not use the power to make an order for a purpose other than that for which it was conferred.
3:4 1. When making an order the administrative authority shall weigh the interests directly involved in so far as no limitation on this duty derives from a statutory regulation or the nature of the power being exercised. 2. The adverse consequences of an order for one or more interested parties may not be disproportionate to the purposes to be served by the order. That these provisions in the General Administrative Law Act have to be observed is of course also set down in the Instructions on voluntary agreements and to some extent further specified. I would like to point out instructions 3, 8, 11 and 12. In this we recognize in particular the codifications or part codifications of requirement of care (careful examination: Article 3:2), and the principal of proportionality (Article 3:14 GALA).
[104] S.E. Zijlstra, Convenanten, p.39.
[105] HR 13 April 1962, AB, p. 487; NJ 1964, 366.
[106] It is a matter then of concurrence between Article 3:4, second subsection, GALA (principle of propotionality) and Article 3:44 DCC (misuse of circumstances). The doctrine of thwarting forbids that the government demands compliance in such a case, thus the practical significance of this is not great (S.E. Zijlstra,
Convenanten, pp. 39-40. Ackermans-Wijn, p. 91 cites the example of an exorbitant penalty clause. Zijlstra (p. 39, note 181) points out that exorbitant penalty clauses can also lead to abuse of circumstances for parties that are not part of government).. Article 3:44 DCC states: 1. A juridical act may be annulled when it has been entered into as a result of threat, fraud or abuse of circumstances. 2. A person who induces another to execute a certain juridical act by unlawfully threatening him or a third party with harm to his person or property, makes a threat. The threat must be such that a reasonable person would be influenced by it. 3. A person who induces another to execute a certain juridical act by intentionally providing him with inaccurate information, by intentionally concealing any fact he was obliged to communicate, or by any other artifice, commits fraud. Representations in general terms, even if they are untrue, do not as such constitute fraud. 4. A person who knows or should know that another is being induced to execute a juridical act as a result of special circumstances - such as state of necessity, dependency, wantonness, abnormal mental condition or inexperience - and who promotes the creation of that juridical act, although what he knows or ought to know should prevent him therefrom, commits an abuse of circumstances. 5. If a declaration has been made as a result of threat, fraud or abuse of circumstances on the part of a person who is not party to the juridical act, this defect cannot be invoked against a party to the juridical act who had no reason to assume its existence.
[107] A possibility for inventarizing the interests of third parties and to involve them in the conclusion of voluntary agreementsis to carry out a public prepatory procedure. At the time that this contribution is published, two involved sections from the General Administrative Law Act (Section 3.4, Articles 3:10 to 3:13, and Section 3.5, Articles 3:14 to 3:33, GALA) will probably be joined together in a new Section 3.4, Articles 3:10 to 3:18, GALA over the uniform public prepatory procedure (Parliamentary documents I 2000-2001, 27 023, no. 177).
[108] See instruction 13 for voluntary agreements.
[109] The relevant provisions state:
3:46 An order shall be based on proper reasons.
3:47 1. The reasons shall be stated when the order is notified. 2. If possible, the statutory regulation on which the order is based shall be stated at that same time. 3. If, in the interests of speed, the reasons cannot be stated immediately when the order is published, the administrative authority shall give communication of them as soon as possible thereafter. 4. In such a case, articles 3:41 to 3:43 inclusive shall apply
mutatis mutandis.
[110] Commissie voor de Toetsing van Wetgevingsprojecten, p. 33. In the Instructions for voluntary agreements, in particular Instruction 8, section 3, this is also prescribed. The whole Instruction states: 1. Consideration will be given as to whether the voluntary agreement contains a regulation which determines that parties other than those parties which have entered into the voluntary agreement will be able to join that agreement. 2. It is recommended that it be laid down in an accession regulation exactly who can join, in which way and under which conditions. 3. Under the same circumstances the possibility for others to be in a position to join or to conclude a voluntary agreement will not be withheld. 'Under circumstances, it is indeed prudent for the government to ask itself whether voluntary agreements do not make an unjustified distinction between similar cases. The relevance of this for voluntary agreements is greatly dependent on the nature and scope of the voluntary agreement, the binding which is imposed on government by the voluntary agreement, and the 'advantage' for the other parties from the voluntary agreement (and with this the disadvantage for non-participants)' (S.E. Zijlstra,
Convenanten, p. 39).
[111] S.E. Zijlstra,
Convenanten, p. 37.
[112] S.E. Zijlstra,
Convenanten, p. 38. See also J.C.E. Akkermans-Wijn,
Contracten met de overheid, Kluwer, Deventer 1989, pp. 85-88.
[114] Supreme Court [
Hoge Raad] 23 June 1989, AB 1989, 551 and NJ 1991, 673.
[118] On this, see among others : S.E. Zijlstra,
Convenanten, pp. 58-60 and
his De paradox van de horizontalisering. De juridische positie van derden bij convenanten, in: F.J. van Ommeren and H.J. de Ru (ed.),
Convenanten tussen overheid en maatschappelijke organisaties, Sdu, The Hague 1993, pp. 143-166.
[119] L.J.A. Damen,
Bestaat de Awb-mens? In: J.L. Boxum e.a. (ed.),
Aantrekkelijke gedachten, Kluwer, Deventer 1993, pp. 109-129.
[120] F.J. van Ommeren en B.J. Schueler, RegelMaat 1992, p. 67
[121] The Instructions on voluntary agreement do not however detract/effect from the applicability of Articles 3:2 and 3:4 GALA on voluntary agreements. Article 3:1 section 2, GALA entails that these provisions also apply to other actions of orders, insofar the nature of the action involved does not prevent this. Now that the general interest is mostly very prominently present in voluntary agreements, this clause will not apply quickly.
[122] S.E. Zijlstra,
De paradox van de horizontalisering. De juridische positie van derden bij convenanten, in: F.J. van Ommeren and H.J. de Ru (editor), Convenanten tussen overheid en maatschappelijke organisaaties, Sdu, Den Haag 1993, p. 158.
[123] This legal concept appears in Dutch law in Collective Bargaining Agreements.
[124] Such as the Declaring stipulations of Collective Bargaining Agreements generally binding or not binding Act (the law of 25 May 1937, Bulletin of Acts and Decrees. 801).
[125] The Dutch government assumes that voluntary agreements can include technical provisions and that in circumstances must then be notified to the Commission, agreements in voluntary agreements can lead to tendering directives being applicable and they can have competitive aspects. I will not discuss this further in this paragraph.
[126] The Commission's advice has been prepared by a working group with W. Konijnenbelt as chairman.
[127] Parliamentary documents II [
Kamerstukken] 1992-1993, 22 800 VI, no. 4, pp. 1-10
[128] This is more or less identical to the current instruction 5 on voluntary agreements.
[130] See also on this theme, among others, J.W. van de Gronden and M. Haverland
, Het Nederlands convenant als verpakking van het Europees beleid, RegelMaat 1997, pp. 98-107; P.J. Leefmans, Commissie over milieuconvenanten, Nederlands tijdschrift voor Europees recht, 1997, pp. 119-121; B.M. Veltkamp,
Implementatie van EG-milieurichtlijnen in Nederland, thesis UvA, Kluwer, Deventer 1998, pp. 126-131; T. Heukels,
Alternatieve implementatietechnieken en art. 189, lid 3, EG: grondslagen en ontwikkelingen, Nederlands tijdschrift voor bestuursrecht 1993, 59-74; E. Steyger, European Community Law and the Self-Regulatory Capacity of Society, Journal of Common Market Studies 1993, pp. 193; I. Sewandono,
Implementatie van EEG-richtlijnen met behulp van convenanten, in: F.J. van Ommeren and H.J. de Ru,
Convenanten tussen overheid en maatschappelijke organisaties, Sdu, Den Haag 1993, pp. 81-104; A.J.C. de Moor, J.M. Bonnes, W.J.M. Voermans and V.J.J.M. Bekkers
, Implementatieproblemen: gekissebis in het vooronder? NJB 1992, pp. 601-607; V.J.J.M. Bekkers, J.M. Bonnes, A.J.C. de Moor-van Vugt and W.J.M. Voermans,
Brussels and the Netherlands tegenliggers, spookrijders of reisgenoten? Implementatie van EG-regelingen in de Nederlandse rechtsorde, W.E.J. Tjeenk Willink, Zwolle 1993, pp. 114-117; H.G. Sevenster,
De geoorloofdheid van milieubeleidsafspraken in Europees perspectief, in: M.V.C. Aalders and R.J.J. van Acht (ed.),
Afspraken in het milieurecht, Zwolle 1992, pp. 73-93; J.H. Jans,
Europees milieurecht in Nederland, Groningen 1994, pp. 148-150; J.W. van de Gronden
, De implementatie van het EG-milieurecht door Nederlandse decentrale overheden, thesis Utrecht, Kluwer. Deventer 1998, pp. 67-69; See also B.M. Veltkamp
, Het arrest Engels Drinkwater: implementatie via convenanten verder ingeperkt, Nederlands tijdschrift voor Europees recht 2000, no. 5/6, pp. 148-150.
[131] An indication of this can be seen in Article 139 EC-Treaty.
[132] These guidelines show a great similarity with the Instructions for voluntary agreements that have come into being as a result of the advice of the Commission for legislative projects.The instruction in question now reads: 1. A voluntary agreement is in principle not used for the implementation of a EC decision.
2. Whenever an EC decision concerns a very limited circle of concerned parties which in principle is not subject to change, the purport of the decision permits implementation by means of a voluntary agreement and such agreement appears to be a suitable alternative to regulatory measures, then it is appropriate to implement the decision by means of a binding and legally enforceable voluntary agreement, if: a. the content of the voluntary agreement tallies with the directive and timely, sufficiently precise and permanent implementation is ensured; b. it is guaranteed that the voluntary agreement is legally binding on all parties concerned and that compliance can be legally enforced; c. in case the directive also extends rights to third parties, sufficiently adequate possibilities for legal protection must also exist for these parties; d. the voluntary agreement is sufficiently made known by means of integral publication in the
Staatscourant (Government Gazette) or by other means; e. with the realisation of the voluntary agreement any progressive developments within the EC framework will have to be taken into account, as they may compel the voluntary agreement to be amended or other regulatory measures to be promulgated by the government; f. in the voluntary agreement itself or during its publication reference is made in whole or in part to the implemented directive; g. the voluntary agreement is made known to the European Commission according to the provisions of the directive. 3. Instructions 334-347 of the Instructions for Regulatory Measures are applicable by analogy.
[133] The text is included in L. Bomhof and others (ed.),
Praktijkboek milieu, Legislation Part 3, Samsom, Alphen aan den Rijn 1999, pp. 683-684.
[134] Com (2000) 155 OJ C 81 p. 9, in particular p.32. (http://europa.eu.int/eur-lex/nl/com/pdf/2000/act0155nl01/com2000_0155nl01_2.pdf, p. 5). See: Pascal Lefévre,
Voluntary Agreements in EU Environmental Policy - Critical Review and Perspectives, Environmental law network international (elni)-newsletter 2000, pp. 24-28, especially. 27.
[135] (http://europa.eu.int/eur-lex/nl/com/cnc/2001/act28nl01/com2001_0028nl01-02.pdf, p. 4). See moreover also: de Communication from the Commission Promoting sustainable development in the EU non-energy extractive industry, COM (2000) 265 final and the Green Paper Environmental issues of PVC, COM (2000) 469 final, p. 33.
[136] 25 July 2001, COM (2001) 428 final, pp. 5 and 20-22. See http://europa.eu.int/eur-lex/en/com/cnc/2001/ com2001_0428en01.pdf.
[137] See for example B.M. Veltkamp,
Implementatie van EG-Milieurichtlijnen in Nederland, Kluwer, Deventer 1998, p. 126 and J.W. van de Gronden and M. Haverland,
Het Nederlands convenant als verpakking van het Europees beleid, RegelMaat 1997, p. 99
[138] HvJEG 5 oktober 1994 C-255/93, Jur. 1994, p. I-4949 Commission against France judged in a French voluntary agreement for the implementation of this directive. Dutch literature over this directive and its implementation: Van de Gronden/Haveland,
Het Nederlands convenant als verpakking van het Europees beleid, RegelMaat 1997, pp. 98-107; P.J. Leefmans,
Verpakkingen en verpakkingsafval, Nederlands tijdschrift voor Europees recht 1995, p. 54; W.Th. Douma,
De EG-Richtlijn Verpakking en verpakkingsafval. Het Nederlandse Convenant Verpakkingen toe aan recycling?, Milieu en Recht 1995, no. 6, p. 108-112.
[139] J.W. van de Gronden and W. Haveland
, Het Nederlands convenant als verpakking van het Europees beleid, RegelMaat 1997, p. 99.
[140] A recent example is Article 10, third subsection, Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles. The subsection in question states: Provided that the objectives set out in this Directive are achieved, Member States may transpose the provisions set out in Articles 4(1), 5(1), 7(1), 8(1), 8(3) and 9(2) and specify the detailed rules of implementation of Article 5(4) by means of agreements between the competent authorities and the economic sectors concerned. Such agreements shall meet the following requirements: (a) agreements shall be enforceable; (b) agreements need to specify objectives with the corresponding deadlines; (c) agreements shall be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission; (d) the results achieved under an agreement shall be monitored regularly, reported to the competent authorities and to the Commission and made available to the public under the conditions set out in the agreement; (e) the competent authorities shall make provisions to examine the progress reached under an agreement; (f) in case of non-compliance with an agreement Member States must implement the relevant provisions of this Directive by legislative, regulatory or administrative measures.'
[141] B.M. Veltkamp,
Implementatie van EG-milieurichtlijnen in Nederland, p. 128.
[143] The Working Group on the appraisal of instructions for voluntary agreements formulates the same views and refers again to the European Court of Justice 2 April 1999 C-340/96 Commission against the United Kingdom. See on this, among others, B.M. Veltkamp, Het arrest Engels drinkwater, implementatie via convenanten verder ingeperkt, Nederlands tijdschrift voor Europees recht 2000, pp. 148-150.
[144] See for example N.S.J. Koeman.
Van toetsing naar bemiddeling in het bestuursrecht: mogelijkheden en onmogelijkheden naar huidig recht, in:
Van toetsing naar bemiddeling, Kluwer, Deventer 1997, pp. 15-19, especially p. 16 and N.S.J. Koeman and S. Pront-van Bommel,
Alternatieve geschillenbeslechting in het bestuursrecht, in:
De rechter aan de kant: alternatieve geschillenbeslechting, W.E.J. Tjeenk Willink, Zwolle 1992, p. 121 - 123.
[145] See, among others, M.A. Pach,
Mediation in het bestuursrecht. Het kan, het mag en het werkt, preadvies VAR Vereniging voor bestuursrecht, Boom juridische uitgevers, The Hague 2001, pp. 99-143; M. Pel,
Mediation naast rechtspraak.
[146] Willem Konijnenbelt,
Onderwijsconvenanten, probleem of oplossing. Preadvies Vereniging voor Onderwijsrecht 1992 pp. 14 and 15.
[147] Koeman/Pront-van Bommel, pp. 123-124.
[148] Kamerstukken II [
Parliamentary documents] 1982/1983, 17 779, no. 3, p. 42; kamerstukken II 1983/1984, 18 464, no. 3, p. 3-7.
[149] Similar approach: P. Nicolaï,
De overeenkomst in het ambtenarenrecht, TAR 1991, no. 5, pp. 271-277, especially p. 274 And M. Kobussen,
Afstandsovereenkomst of publiekrechtelijke dading? Over de geoorloofdheid van afstandsclausules, NJB 1987, pp. 140 -144.
[150] S. Pront-van Bommel, Bemiddeling,
de vaststellingsovereenkomst en arbitrage in bestuursrechtelijke geschillen, in: I.C. van der Vlies and S. Pront-van Bommel (ed.),
Van Toetsing naar bemiddeling, Kluwer, Deventer 1997, pp. 21-39, esp. p. 30.
[151] I.C. van der Vlies, S. Pront en D. Allewijn,
Van toetsen naar bemiddelen; de bestuursrechter als ultimum remedium, Nederlands tijdschrift voor bestuursrecht 1996, pp. 213 -221, esp. p. 217
[152] See earlier section on voluntary agreements.
[153] I.C. van der Vlies, S. Pront and D. Allewijn,
Van toetsen naar bemiddelen; de bestuursrechter als ultimum remedium, Nederlands tijdschrift voor bestuursrecht 1996, pp. 213-221, especially p. 217.
[154] I.C. van der Vlies, S. Pront and D. Allewijn
, Van toetsen naar bemiddelen; de bestuursrechter als ultimum remedium, Nederlands tijdschrift voor bestuursrecht 1996, p. 217
[155] On this, among others: M.A. Pach, VAR-preadvies p. ; I.C. van der Vlies, VAR-preadvies, p. 171; D.A. Lubach,
Machtsongelijkheid in het bestuursrecht, over de mogelijkheden en de onmogelijkheden van alternatieve geschillenbeslechting, in: R.L. Vucsàn (ed.),
De Awb-mens: boeman of underdog: essays offered to Leo Damen, Ars Aequi Libri, Nijmegen 1996, pp. 55- 165; N.S.J. Koeman and S. Pront-van Bommel,
Alternatieve geschillenbeslechting in het bestuursrecht, in: H.J. Snijders and Jonge Balie Congrescommissie (ed.),
De rechter aan de kant: alternatieve geschillenbeslechting. Bundel ter gelegenheid van het Jonge Balie Congres 1992, W.E.J. Tjeenk Willink, Zwolle 1992, pp. 115-134.
[156] I.C. van der Vlies, S. Pront and D. Allewijn
, Van toetsen naar bemiddelen; de bestuursrechter als ultimum remedium, Nederlands tijdschrift voor bestuursrecht 1996, pp. 213-221, esp. p. 216.
[157] I.C. van der Vlies,
Geschilbeslechting en conflictbehandeling, juridisch geregeld, in: B.J. van Etekoven, M.A. Pach and I.C. van der Vlies,
Alternatieven van en voor de bestuursrechter, Boom Juridische uitgevers, Den Haag 2001, pp. 145-206, esp. p. 169.
[158] Van der Vlies, p. 171
[159] Van der Vlies, p. 171. For more details, see M.A. Pach
, Mediation in het bestuursrecht. Het kan, het mag en het werkt, in: B.J. van Ettekoven, M.A. Pach and I.C. van der Vlies,
Alternatieven van en voor de bestuursrechter, Boom Juridische uitgevers, Den Haag 2001, pp. 99 -143, especially p. 123. She refers here to H.J. Brown and A.L. Mariott, ADR. Principles and Practice, London 1999, p. 128
[160] I restrict my discussion to mediation in the primary decision-making phase and in appeal.
[161] Van der Vlies, pp. 183-184.
[162] Thus, and rightly so, Van der Vlies p. 192.
[163] Van der Vlies, p. 182.
[164] Van der Vlies, pp. 182-183.
[166] The relevant provision states: 1. The district court may summon the parties to appear in person, or to appear in person or represented by a legal representative, either for the purpose of giving information or otherwise. If not all the parties are summoned, the parties not summoned shall be given the opportunity to attend the hearing and give their views on the case. 2. The registrar shall draw up a record of the information provided. 3. It shall be signed by the presiding judge of the three-judge section and the registrar. If the presiding judge or the registrar is unable to sign it, this shall be stated in the record.
[168] C.L.B. Kocken and N.F. van Manen,
Weg van het recht. Report of an investigation commissioned by the Ministry of Justice to assess four experiments on mediation at Community legal centres and courts., Paul Scholten Instituut, Universiteit van Amsterdam, Amsterdam, August 1998, pp. 56-57
[169] Van der Vlies, p. 190.
[170] P.J.J. van Buuren, Gedogend besturen, inaugural lecture University of Utrecht, Kluwer, Deventer 1988
[171] Final report of the Oosting Commission, Enschede/Den Haag, 28 February 2001, pp. 231-232.
[172] Kamerstukken [
parliarmentary documents] 2000-2001, 27 157, no. 20, p. 20.
[173] Kamerstukken II [
parliamentary documents] 2000-2001, 27 157, no. 20, p. 21
[174] Restricting myself to a fewthree key publications: G.J.M. Corstens, Civielrechtelijke, administratiefrechtelijke of strafrechtelijke rechtshandhaving?, preadvies voor de Nederlandse juristenvereniging 1984; Wetenschappelijke Raad voor het regeringsbeleid, Rechtshandhaving, 1988 en Commissie Michiels, Handhaven op niveau.
[175] In the Netherlands, the administrative bodies that are part of the Prosecution Service [
openbaar ministerie] have the general power not to prosecute. This power is, of course, subject to normalized and is limited, and often unwritten. One of the forms of toleration in criminal law that has attracted a great deal of attention outside the Netherlands is the toleration of 'coffee shops'. It is not discussed in this contribution, because I am limiting myself to administration by negotiation in administrative law.
[176] Formally this is an application ( a request by an interested party for an order) in the sense of Article 1:3, section 3, GALA)
[177] This means that an interim injunction has been applied for in this case (Article 8:81 GALA), in which the President has used the possibility, often used in the Netherlands, of 'a short-cut'- taking a decision in the main case immediately - in Article 8:86 GALA.
[178] Abr 11 September 2000, JB 2000, 299 nt. C.L.G.F.H.A. Albers. Standard judgement here is Abr 2 February 1998, AB 1998, 181 nt. Michiels.
[179] F.C.M.A. Michiels,
Belangenafwging bij sanctiebesluiten, Ars Aequi 2000, pp. 111-117, especially p. 113.
[180] F.C.M.A. Michiels,
Belangenafweging bij sanctiebesluiten, Ars Aequi 2000, p. 116.
[181] F.C.M.A. Michiels, Handhaving van het publiekrechtelijk bouwrecht, preadvies voor de Vereniging voor Bouwrecht, Kluwer, Deventer 1991, p. 27; G.T.J.M. Jurgens, Bestuurlijk gedogen. Aanvaardbaarheid en gevolgen van bestuurlijk gedogen in het milieurecht en het ruimtelijk recht, proefschrift Utrecht, W.E.J. Tjeenk Willink, Zwolle 1996, p. 7 - 10, esp. p. 8; P. Jong, Handhaving van bestuursrecht, deel VIII Bestuurlijk gedogen, Uitgeverij Euroforum, Eindhoven 2001, p. 5.
[182] G.T.J.M. Jurgens, p. 8.
[183] See for the character of order of a toleration declaration, G.T.J.M. Jurgens, pp. 86-93.
[184] Artikel 1:3, tweede lid, GALA: 'Administrative decision' means an order which is not of a general nature,
including rejection of an application for such an order
[185] Jurgens, pp. 80-84.
[186] See remarks by the discussion of voluntary agreements for this.
[188] Kamerstukken II[Parliamentary documents] 1989-1990, 21 137, no. 26 and Kamerstukken 1991-1992, 22 343, no. 2.
[189] Kamerstukken II 1996-1997, 25 085, no. 2 (downloadable from: www.overheid.nl/op).
[190] Kamerstukken II 1996-1997, 25 085, no. 2 p. 12.
[191] Kamerstukken II 1996-1997, 25 085, no. 2 p. 9.
[192] With administrative enforcement: the administrative organ notifies that the party involved must do something or refrain from doing something, but does not go on to undertake this itself if the notified party fails to do so. With an order subject to astreinte: the administrative organ gives an order that the party involved must do something or refrain from doing something, but when the term of obstructing has passed and the violation of the norm continues or proceeds, the body does not collect the astreintes.