Indirecte toetsing door de bestuursrechter van algemeen verbindende voorschriften aan evenredigheid

Abstract

The administration increasingly uses acts of general application instead of individual decisions to determine the legal position of citizens. Unlike individual decisions, acts of general application cannot be appealed directly before administrative courts. However, administrative courts are allowed to assess these acts in an indirect way in proceedings against decisions that implement or enforce those acts. During these proceedings, administrative courts can also review whether acts of general application comply with general principles of law, such as the principle of proportionality. After a long period of judicial restraint, administrative courts have, in recent years, strengthened the legal protection against acts of general application. The principle of proportionality plays a leading role in this development. Administrative courts increasingly examine whether the consequences of acts of general application are proportionate to the objectives that the administration aims to achieve with those acts. This proportionality test is still in full development. This dissertation examines what further steps Dutch administrative courts can take in the development of proportionality review of acts of general application. In order to answer the research question, a comparative legal study has been conducted, encompassing the legal systems of the European Union, the European Convention on Human Rights, France and Germany. The dissertation is structured around five themes: the structure and content of the proportionality test, the intensity of proportionality review, modalities of proportionality review, the consequences of successful indirect review and the relationship between direct and indirect review. The dissertation first provides an analysis of the state of the art in the Netherlands. It is concluded that Dutch administrative courts have taken the necessary steps when it comes to the indirect review of acts of general application in the light of the proportionality principle and that they are moving in a direction that can be positively appreciated in itself. The steps already taken align with the constitutional framework that was formulated in the dissertation. Those steps also go well with the Dutch system of administrative legal protection as well as more general developments in judicial review in Dutch administrative law and the overarching shift from autonomous administrative law to responsive administrative law. However, it was also concluded that further steps can still be taken. These further steps are presented as concrete recommendations, structured around the five themes, for Dutch administrative court for the further development of the proportionality review of acts of general application. A common thread in these recommendations is that administrative courts should focus less on the consequences of acts of general application for individual cases and more on how those acts affect (other) citizens in a general way.