Rebalancing indirect judicial review of administrative action in the Netherlands

In this chapter, we examine how the courts in the Netherlands review general binding regulations adopted by competent Dutch administrative authorities. Administrative courts are not competent to directly review decisions containing general binding regulations. Disputes about the lawfulness of general binding regulations may, under certain conditions, be submitted to a court of general competence. However, administrative courts can and regularly do assess the legality of general binding regulations indirectly, in the context of proceedings against a reviewable decision that is based on a general binding regulation. In this procedure, appellants may claim that the general binding regulation upon which the decision is based is unlawful. The consequence of this may be that the binding effect of the general binding regulation is denied or that the administrative authority was not allowed to apply this general binding regulation when making the specific disputed administrative decision. Over time, the indirect review of general binding regulations by the administrative courts has become increasingly intense. General binding regulations can be found unlawful not only when there is a violation of the proportionality principle but also when the general binding regulations are adopted in violation of substantive or formal principles of law and good governance. However, an examination of the relevant case law of the past ten years shows that the increased intensity of the review has not led to a higher the number of judgements in which the administrative court rules that a general binding regulation is unlawful.