On 1 July 2013 a number of significant amendments were incorporated in the Dutch General Administrative Law Act. Through the entry into force of (part of) the Dutch Compensation of Damage Resulting from Lawful and Unlawful Administrative Decisions Act ("Damage Compensation Act"), the Dutch General Administrative Law Act now contains new rules governing compensation for damage resulting from unlawful governmental decisions. Through the entry into force of the second part of the Dutch Procedural Administrative Law Amendment Act, the Dutch General Administrative Law Act now provides for cross-appeals in administrative law at the highest appellate level.
The main features of the Damage Compensation Act (Stb. 2013, 50) and the Procedural Administrative Law Amendment Act (Stb. 2012, 682) were explained in our e-Newsletter dated February 8, 2013. The current e-Newsletter outlines the amendments that took effect on 1 July 2013.
Damage Compensation Act: application proceedings for damage compensation and repeal of Section 8:73
The Damage Compensation Act was published in the Dutch Bulletin of Acts and Decrees on 15 February 2013. In a royal decree (Stb. 2013, 162) issued on 22 April 2013, the effective date for the provisions of the Act pertaining to compensation for damage in the event of unlawful administrative acts was set at 1 July 2013. The entry into force of the provisions pertaining to compensation for damage in the event of lawful administrative acts was postponed due to the need for amending legislation that was still in preparation and in order to enable lower governmental bodies to withdraw or amend their own rules on this subject.
The provisions pertaining to compensation for damage in the event of unlawful administrative acts have been incorporated in the newly added Title 8.4 of the General Administrative Law Act. Under Title 8.4, application proceedings can now be commenced in an administrative court to obtain compensation of damage in the event of (a) unlawful administrative decisions, (b) unlawful acts in preparing an unlawful administrative decision and (c) a failure to take an administrative decision within the specified time period. In the case of claims for damages on account of unlawful administrative decisions which, if appealed, would ultimately fall under the jurisdiction of the Central Appeals Tribunal (for public service and social security matters) or the Tax Division of the Supreme Court, the jurisdiction of the administrative court over such claims is exclusive. Such claims can no longer be heard by the civil court. For damage claims on account of administrative decisions which, if appealed, would ultimately fall under the jurisdiction of the Administrative Division of the Council of State or the Trade and Industry Appeals Tribunal, the amount of the claim is decisive. For claims up to EUR 25,000, including interest, the injured party may choose between the administrative courts and the civil courts. For claims above that amount, only the civil courts have jurisdiction.
Through the entry into force of (part of) the Damage Compensation Act, section 8:73 of the General Administrative Law Act has been repealed. This Section made it possible to request the administrative court that was hearing an appeal to order the relevant administrative authority to pay damages if the appeal was held to be well-founded. The administrative courts interpreted this Section, in line with the ECHR, as giving them jurisdiction to rule on a request for the compensation of damage resulting from proceedings exceeding a "reasonable time" within the meaning of Article 6 ECHR. The question is whether the administrative courts still have jurisdiction to order the payment of damages in such cases since the repeal of Section 8:73. The Explanatory Memorandum to the royal decree setting the effective date for (part of) the Damage Compensation Act answers this question as follows: according to the Minister, the purpose of the Damage Compensation Act is not to bring about changes to case law and the administrative court still has jurisdiction to rule on such damage by applying Title 8.4 of the General Administrative Law Act in a manner in conformity with the ECHR. It still remains to be seen whether the administrative courts will share this view.
Procedural Administrative Law Amendment Act
On 1 January 2013 the Procedural Administrative Law Amendment Act entered into force, with the exception of the provisions introducing cross-appeals in administrative law at the highest appellate level. The entry into force of these provisions was postponed in order to take measures to ensure that they would not be applied in full in immigration cases. Both the provisions on cross-appeals and amendments to the Dutch Aliens Act derogating from those provisions in immigration cases (Stb. 2013, 226) entered into force on 1 July 2013.
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