Review of Final Decisions in the Netherlands, Germany and Europe
QUALITY OF DECISION-MAKING IN PUBLIC LAW, Europa Law Publishing, 2007
18 Pages Posted: 26 Feb 2010
Date Written: December 20, 2007
Every decision made by a government administrative authority is presumed to be lawful; but not every administrative decision is in fact lawful. If a legal remedy is unsuccessful or if no legal remedy is lodged, then an unlawful decision will continue to apply. A government which strives to provide legal quality will try to ensure that the various administrative bodies charged with implementing government policy in concrete terms make only lawful decisions. Nonetheless, government decisions always include some which are operative but actually should not be. If an administrative authority discovers that it has made an erroneous decision which has become legally incontestable, the question arises whether it can or should do anything to change this situation and how it can optimally safeguard the legal quality of its decision-making. In a case like this the government authority is faced with a dilemma; is the notion of legal quality best represented by providing legal certainty – and thus by restraint as regards reconsidering unlawful decisions – or by safeguarding lawfulness, and thus by broad powers to change previously made decisions?
In this contribution we attempt to provide insight into this dilemma and also to show how administrative bodies in the Netherlands and Germany solve the dilemma and how much leeway they are given by the court to do so. In this context a discussion of European law is indispensable. We will first explain the dilemma between lawfulness and legal certainty in more detail, for example by examining the arguments on which possible solutions may be based (Section 2). We will then deal successively with the Dutch (Section 3) and German (Section 4) solutions to the dilemma and discuss the influence of European law (Section5). We will end with some conclusions (Section 6).
Keywords: Quality Decision-Making Review decisions administrative law government Germany Netherlands Europe
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