An administrative body, such as the government, must adhere to certain rules of conduct toward citizens and businesses. These are also called the principles of proper administration. A number of these are contained in the law, but a number of principles of proper administration have been deliberately left out of the law by the legislature. Those principles are “unwritten law,” which case law (the body of rulings by judges) must give a twist to.
One example is the principle of trust. There has been more talk about this recently. But the principle of proportionality (though included in the law) is also in flux.
Trust principle from swamp of oblivion
The principle of trust means that a citizen must be able to trust that a particular promise made by an administrative body or a legal provision will be fulfilled or complied with.
For years, the principle of trust was a neglected child among the principles of good administration, but now this is no longer the case. A ruling by the Council of State has pulled the principle of trust out of the morass of oblivion and made it an active part of administrative law.
Problem of trust principle
Regarding the principle of trust, there were some bumps in the road. The Administrative Law Division of the Council of State stated in the past that a promise on the part of the government could only be honored if the promise came from an authorized person or authority. However, very many administrative powers are collegial powers. That is, they are the authority of a college, such as mayor and aldermen, or Provincial Councils.
That, then, is directly the problem. I don’t know about you, but I rarely sit down with mayors and aldermen or with provincial representatives. Occasionally I do talk to an alderman or a deputy, but that is really the exception. With that, the practical significance of the principle of trust was extremely small: promises made by aldermen or officials were basically worth nothing.
Trust principle now in flux
That has since been set in motion with first the ruling of the Administrative Law Division of the Council of State (from now on: the Division) on the “Overbetuwe horse trough” and then the ruling of the “Amsterdam roof structure.” Both cases involved a commitment by an official who was not authorized to do anything by himself.
The Division currently assumes that reliance can be placed on the principle of trust if a promise was made by an official from whom the citizen could reasonably expect that official to interpret the view of the competent administrative body. This is thus at odds with previous assessments on the principle of legitimate expectations.
An example. When it comes to the question of what is or is not legal, or what may be built permit-free, you go to the official at the building counter. So nowadays, if that official indicates that something may or may not be built without a permit, you as a citizen may rely on that to a significant extent. “To a significant extent” because the Division assesses in a three-step plan whether an appeal to the principle of reliance must be fulfilled.
The first step in the roadmap is to answer the question of whether there was a commitment. That is, whether the official’s statements and/or conduct reasonably created the impression that a position was deliberately taken by the board on how a power would be exercised. The second step is then whether the commitment can be attributed to the competent authority; thus, the step that went wrong in most cases. As a third step, a weighing of interests may follow, because under circumstances a commitment may be recalled, for example if fulfilling a commitment is contrary to the law, the public interest or the interests of third parties.
This establishes, for most cases, a fairly simple line of reasoning that will get you ahead as a citizen. The trust principle lives!
Impact of Surcharge affair on proportionality
The principle of reliance is not the only principle that is “in flux.” So is proportionality. Proportionality, or proportionality, means that the relationship between ends and means must be sufficiently balanced.
The problem with proportionality
Previously, enforcement action in the context of proportionality involved weighing the public interest served by compliance against the violator’s interest in continuing the violation.
In that consideration, proportionality could only come into play if there was a concrete prospect of legalization or if the violation was of a minor nature or gravity.
Most zoning violations are not considered by the State Administrative Law Division to be violations of minor nature or severity.
Proportionality now in motion
It was the Surcharge Affair that led to more cautious case law than before. The Surcharge Affair has also led to the development of a somewhat more concrete tool for practice than before. The handle has been developed for the collection of penalty payments or the recovery of amounts, but it is just as useful for the question of whether enforcement action should be taken. The key words here are whether enforcement action is necessary or whether the instrument of the order under penalty is appropriate and whether the chosen penalty is still in any proportion to the violation.
Many of these questions can be answered by mayors and aldermen by implementing policy. But that does not relieve them from considering whether there is no reason to deviate from the policy. The concepts of “proportionality,” “necessity” and “appropriateness” play an important role here. Therefore, I question the governing bodies on precisely these: proportionality, necessity and appropriateness.
Helicopter View
Administrative law has thus gained in the past few years two important and useful principles that do justice to the citizen perspective that citizens have in dealing with government.
If the only official you can find on a particular subject indicates that something is or is not permit-free, you should be able to rely on that. My clients have always found it strange that there was then no authority given. The same goes for proportionality. There is more to proportionality than just the violation “of a minor nature or gravity.” All too often, enforcement is enthusiastically focused on details and the world does not get markedly better with enforcement action.
Moreover, it means for me as a lawyer that there is more to advocate than before. With that, the pendulum of time has swung the other way. I have really only experienced restrictive applications of the principles of administration in the last 20 years. Now I can more easily say to the government, “Now step back and see what this enforcement action does.” I would think: that would improve the rule of law.
