1.

Defining administrative nature

1.1. Of acts
● To constitute as an administrative act, the act in question must
○ unilaterally determine the legal status of a subject other than through a
legislative, judicial, contractual or private law act;
○ have a presumption of legality
■ meaning that it is immediately presumed to be in accordance
with an based on the law
■ meaning that it is immediately binding for subjects, and
therefore immediately demanding compliance
○ have the writ of execution
■ meaning that it is vested with the privilege of (forced)
execution → the act can be enforced without obtaining a prior
executory title from a court
○ have (administrative) discretion
■ meaning that the administration had the power to decide freely
between two or more reasonable options/measures (“paths”)
○ have judicial deference
■ meaning that the courts reviewing the administrative act will
rely on the judgement of the administrative authorities and will
not subject the act to full judicial scrutiny
○ OPTIONAL (not always applicable): precisely regulate future behavior
■ meaning that through rules, regulations and permit conditions,
the administration can precisely prescribe the desired behavior,
rather than just prohibiting undesired behavior
● important distinction between administrative and
criminal law!!!
1.2. Of law (exam 2018/2019, q1)
● To constitute as administrative law, the law in question must be
○ Giving rise to an unilateral decision;
■ setting norms regarding the relationship between a government
authority and its citizens
■ unilateralism is essential to administrative law
○ Coming from an administrative authority which is either;
■ A legal entity established under public law
■ Invested with certain authorities by the administration that are
not available to a private person
○ Changing the legal status of subject(s);
■ legal status can also involve something like the right to be paid
(right to compensation, 2019 resit, q.1)
○ Giving effect to something that authorizes unilateral decisions on a
matter

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2. GALA and specific content of important articles
2.1. Defining/establishing administrative authorities
● Article 1:1, paragraph 1(a) of GALA
● Article 1:1, paragraph 1(b) of GALA
○ bonus info: what makes something a public act is the fact that it
changes the legal status of one or more subjects
2.2. Interested parties/having standing
● Article 1:2, paragraph 1 of GALA
● Article 1:2, paragraph 3 of GALA
● Article 8:1 GALA - an interested party may appeal an administrative order;
● Article 8:2 GALA - only individual orders (not general orders) may be
appealed
○ bonus info: in the Netherlands, one must first appeal the administrative
order directly to the administration and is only allowed to take it to
court after the administration turns down their appeal. The court case is
then the appealing of the decision to turn down the appeal, not about
appealing the actual administrative order.
2.3. Objection procedure
● Article 7:1 of GALA - exemptions of the mandatory objection procedure
2.4. Constituting public law acts
● Article 1:3, paragraph 1 of GALA: defining an administrative order as
○ a written decision
○ issued by an administrative authority
○ constituting a public law act
2.5. Remedies
● Article 8:72 of GALA
2.6. Principle of specificity
● Article 3:4, paragraph 1 of GALA: 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.
3. Hood’s theory on administrative law
3.1. NATO
● Nodality: being in the middle of an information network, the capacity to
collect and send information
○ Examples: conducting information campaigns, recording and analyzing
certain data, profiling persons, providing specific subjects with specific
information
● Authority: possession of official legal power - the capacity to make legally
binding norms, decisions and decide cases
○ Examples: refusing or granting of permits, refusal or granting of
nationality, imposing a fine
● Treasure: possession of money or exchangeable and liquid units of value

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 ○ Examples: provision of subsidies/bonuses for certain projects/activities
- simply put: being able to fund stuff
● Organization (potentia): possession of a stock of people with whatever useful
skills that can act directly and physically, the infrastructure and equipment to
support those actions.
○ Organizing courses, instructing their civil servants to serve a certain
purpose in a certain way
3.2.
4. Comparing administrative law to civil and criminal law
4.1. Administrative law VS criminal law

Administrative Law Criminal Law

Administrative law can ​unilaterally
determine the legal position (status)​ of a
subject (other than through a legislative,
judicial, contractual or private law act)
Criminal law only ​changes the legal status
of a subject through the ​judgement of a
court​ or (existing) ​legislation​ → no
unilateral decision separated from other
branch or form of law

Administrative law automatically enjoys a Criminal law provisions are presumed to be

presumption of legality legal, thus the legal status of the laws
themselves enjoys a presumption of legality,
too. However, criminal liability (thus: the
applicability of the laws) is dependent on
the judgement of an independent court

Administrative law automatically enjoys the Substantive criminal law​ only enjoys the
writ of execution writ of execution based on a ​court order;​

In ​procedural criminal law,​ it ​depends on

the measures​ whether police and
prosecuting authorities automatically enjoy
the writ of execution without having to
obtain a court order

Administrative law enjoys ​discretion
In criminal law, there is only a very limited
form of discretion to be enjoyed; the
prosecution can choose whether they want
to prosecute a specific suspect, and the court
can decide the severity of the sanction (or
whether they want to impose a sanction at
all)

Administrative law enjoys ​judicial The court subjects the prosecution to full
deference judicial scrutiny: there will be a full
examination of the facts and there is no
deference by the court to the assessments of

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 the prosecution

The burden of proof lies with whoever The burden of proof also lies with the
decides to challenge the administration, and prosecution, and the standard of proof is
the standard is reasonableness. beyond reasonable doubt

OPTIONAL (not always applicable): OPTIONAL (not always applicable):

Administrative law can regulate future
behavior in a detailed manner; it can
promote desired behavior
Criminal law only regulates behavior in
terms of negative duties; what is not
allowed.
Furthermore, the legislative process is
slower than through administrative law
(both nationally and locally). Finally,
regulation of behavior is not as adaptive and
precise as through administrative acts.

4.2. Advantages of administrative law compared to criminal law

● The writ of execution
○ The writ of execution ensures that authorities can enforce their
decisions without obtaining permission from an independent court;
○ In criminal law, criminal punishment requires a judgment by a court
before it can be executed. Even pre-trial measures require judicial
approval if they are deemed to be of an “intrusive” nature.
● The presumption of legality
○ Administrative acts are presumed to be in compliance with the law and
should therefore immediately be obeyed;
○ Criminal law does have the presumption of legality, but there is no
such thing as individual decisions which are directed at specific
subjects other than pre-trial measures (which could possibly still
require approval from an independent court)
● Discretion
○ In general, authorities have discretion - a certain ​freedom to choose
between ​various reasonable options ​when performing their
administrative acts and orders;
○ There is no such discretion to be found in criminal law in the
application of the doctrine
■ The prosecutor can decide not to prosecute a suspect, but that is
about the only discretion to be found under criminal law
● Judicial deference
○ Because of administrative discretion, judicial review by administrative
courts is limited to a test of reasonableness → judicial deference means
that there is usually no full review of the administrative decision/act, as
the administration has discretion;

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 ○ In criminal law, the court will always conduct a full review of the
merits of the case, applying the standard of proof beyond reasonable
doubts instead of the more limited standard of reasonableness.
4.3. Administrative law VS civil law

Administrative Law Civil Law

Administrative law can ​unilaterally Apart from family law and personal rights,
determine the legal position (status)​ of a civil law only ​changes​ a subject’s​ legal
subject (other than through a legislative, status​ through ​consent​ or ​wrongdoing
judicial, contractual or private law act)

Administrative law automatically enjoys a In civil law, a presumption of legality is

presumption of legality only enjoyed if it is not contested by a
counterparty​. If it is contested, then the
legality of the claim must be proven.

Administrative law automatically enjoys the In civil law, there is normally only a ​writ of
writ of execution execution​ through a ​court order​ or ​authentic
deeds.​

Administrative law enjoys ​discretion In civil law, ​discretion is not really

applicable​ - it ​depends​ on the ​contractual
arrangement.​

Administrative law enjoys ​judicial In civil law, when a claim is contested, there
deference is ​no room for deference​ by the court.

The burden of proof lies with whoever The court ​conducts a full examination of the
decides to challenge the administration, and facts,​ and the standard of proof is​ more than
the standard is reasonableness. reasonable.

OPTIONAL (not always applicable): Civil law is able to ​regulate behavior

Administrative law can regulate future through torts, but it is a very slow and
behavior in a detailed manner; it can gradual progress: mostly ​backwards
promote desired behavior looking,​ ​not precise​ and only imposing what
one cannot do (​negatively guiding behavior​)

4.4. Advantages of administrative law compared to civil law

5. Judicial deference
6. Forms of administrative sanctions
6.1. Advantages and disadvantages of administrative sanctions
● Enforcement action
● Administrative fine
● Penalty payment

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7. Discretion
7.1. Categories
● Legal discretion: discretion as to the meaning/interpretation of certain legal
terms
○ usually does not exist in for administrative bodies; more up to courts
● Factual discretion: discretion as to how the administration finds facts and
classifies them
○ example: how the administration establishes terms such as
“exceptional circumstances”
● Policy discretion: discretion as to whether the administration wants to pursue
their ability to enforce a decision
○ can also mean in terms of which policy/measure they want to pursue in
specific cases/situations
7.2. Justifications
● The administration should be given the right to enjoy discretion because;
○ The administration has expertise over the matter at hand
■ It is superior in terms of having means at their disposal to
investigate the matter (technical advantage over other legal
bodies due to being in possession of “NATO”);
■ It has “expertise of circumstances” - the administration is the
closest to the day-to-day business of the administration and is
therefore an expert in necessity of administrative action
○ The administration/civil servants are accountable to political
authorities
■ Legislator can hold administration accountable for their actions
if they severely fuck up
○ The legislator grants the administration discretion because otherwise,
there would be no compromise in the political system (no balance of
powers)
8. Principles of good administration
● Active remedy and fair trial (Art. 47 Charter of Fundamental Rights)
● Legality and proportionality of sanctions (Art. 49 Charter of Fundamental Rights)
● The obligation to state reasons
○ Sub-reason: obligation to state reasons as a part of the right to effective
remedy
● Legal certainty
● Transparency
● Principle of equality
○ Equal cases should be treated equal, just as unequal case should be treated
unequal. Different levels of unequal treatment can depend on facts, law, time,
place and the type of administrative body involved.
9. Dicey (Loughlin & dell Cananea)

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10. Objection procedures
10.1. Legal grounds to challenge administrative orders (similar in all
jurisdictions)
● Competence
● Procedural norms on how administration should act
● Subjective/individual rights at stake
● Reasonableness & proportionality
10.2. NL
10.2.1. Alternative route: “exceptive” procedure
● When one wishes to object to a general order, but it is prevented under
Article 8:1 and 8:2 of GALA, one can engage in an “exceptive”
procedure where one uses an individual order for appeal and judicial
review to challenge the general order on which it is based
○ Can only be done by persons or organizations who qualify as
interested parties under Article 1:2(3) of GALA
10.3. Germany
10.3.1. Exemptions
● If the order was given by a Higher Federal State Authority, the
decision is deemed to be well-considered or if an interested third party
is affected by the order following the objection procedure, they can go
directly to court and do not have to retake the objection procedure
towards the administration.
10.4. France
11. History of the administration
11.1. Ancien regime V administrative state (Mannori & Sordi)
● Until the French revolution, the main form of governance/legal power lied in
“​jurisdictio​”; the power to review existing laws and act as a judge in particular
cases
○ The law of the Ancien Regime were considered to be derived from a
higher being/God (see HoLT)
○ King tried to expand his power from just speaking the law to actually
making the law but failed; legal powers remained restricted to being a
“judge”
● In the administrative state (19th century onwards), there was rule by
legislation/primacy of legislation, instead of mere jurisdiction (see lecture Bas
Schotel)
● In the ancien regime, there were many competing authorities (King VS
Bannermen, local authorities and courts)
○ Local authorities and courts who spoke law “in name of the King”, but
did not necessarily listen to the King
● In the administrative state, there was one central government who had the
competences to rule the state in its own right

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 ● Kings of the ancien regime had Treasure and Authority, but lacked Nodality
and Organization (potentia)
○ Mostly organization was a problem in the ancien regime
● The administrative state had all of NATO, especially Organization, in
comparison to the Ancien Regime
11.2. Absolutism (Kings) leading to administration state (Mannori & Sordi)
● Absolutist kings paved the way for the primacy of legislation by attempting to
impose legal directives that were issued by the King as a dominant source of
law instead of a “speaker of the law”;
● Absolutist kings introduced “commissariats” of civil servants that were
directly accountable to the King himself
● Absolutist kings continuously challenged the power of regional courts in
attempts to solidify their own centralized power
11.3. Distinctive features of the modern European state (Oakeshott)
● Oakeshott considers ​potentia, t​ he power to actively intervene physically, a
distinctive feature of the modern European state
○ In Hood’s terms, potentia is organization: the infrastructure and corps
of skilled personnel that can perform physical actions on behalf of the
administration.
○ However, nodality could also be a potential correspondent to potentia,
as nodality helps realize the potentia of the administration: information
networks and databases are crucial to enabling civil servants to operate
on behalf of the state/administration
11.4. Existence of the ​policey​ (18th century)
11.4.1. Objectives of the administration
● To control and improve the existing order; to improve the productivity
of the population through regulations that improve the quality and
quantity of the population (for tax purposes)
11.4.2. Tasks of the administration
● Classic policing of public order;
● City planning;
● Housing;
● Agriculture;
● Regulating markets (food and staple);
● Finance;
● Public health
11.4.3. Legal instruments available to the police
● Regulations that take the form of commands and prohibitions
○ For example: licenses - they are structured as ​exceptions to
prohibitions
11.5. x
12. Case Law

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 12.1. Urgenda Case
12.2. Burkini Case
12.3. Marx Case
13. x

BONUS: HOW TO ANSWER EACH TYPE OF QUESTION

Maud van Dorsselaer PPLE 2019