De aantasting van stabiele bestuursrechtelijke rechtsvaststellingen in het licht van het Unierecht

Abstract

The problem statement addressed in this study is as follows: to what extent does EU law compel a Dutch stable administrative decision and judgement to be revoked if they are not compliant with that law? The problem statement presumes that Dutch law has a system in place with respect to the revocation of a stable administrative decision and judgement. In this study it is made clear that there is no such system. As a rule, revoking a stable administrative decision and judgement leads to contentment as well as resistance. To overcome the resistance and thereby to create consensus as to contentment, there must be systematic rules governing the revocation. Based on dogmatics, a system can be created, avoiding a situation in which there are only intuitive judgments which, because they lack structure, cannot lead to the certainty and predictability of the law. In that regard this study provids points to consider in the General Administrative Law Act about the revocation of a stable administrative decision. In view of the principle of national procedural autonomy, the starting point is that, in the absence of EU rules on this subject, EU law does not compel a national stable administrative decision and judgement to be revoked if they are not compliant with that law. There are circumstances, however, in which EU law recognises such an obligation. An EU law duty to revoke a national stable administrative decision is more powerful in force than the EU duty to revoke a national stable judgement. The European Court of Justice seems to have recognised that from the characterization of administration versus justice it follows that the administrative body’s freedom to revoke its stable administrative decision is greater than the court’s freedom to revoke its stable judgement. The the EU duty to revoke a national stable administrative decision unfavourably is more powerful in force than the EU duty to revoke a national stable administrative decision favourably. An explanation for this difference can be found in the fact that the EU law duty to recover – which can mean under Dutch law that a stable administrative decision is revoked unfavourably – is not so much about the interests of an individual (as is the case with the EU law duty to revoke a national stable administrative decision favourably), but rather about the general interests of the European Union itself, such as (in the case of EU (agricultural) aid) the justified allocation of financial resources and (in the case of state aid) the prevention of a distortion of competition.