The Dutch Administrative Loop Under Scrutiny: How the Dutch (Do Not) Deal with Fundamental Procedural Rights

Abstract

When controlling the administration, administrative courts check the administrative decision and, in case of unlawfulness, they can annul the decision. This process takes time, and is often inefficient and unsatisfactory. Seeking solutions to the problems this mechanism brings about, the legislator introduced the administrative loop: instead of annulling an irregular decision, the administration gets time to repair the decision. For this reparation, the court provides the administration with instructions. This administrative loop is one of the (new) instruments in the toolbox of the administrative court to achieve final (and faster) dispute settlement, which entered administrative procedural law as of 2008. The Belgian Constitutional Court’s ruling may not have a direct impact on Dutch administrative law, but they gave thought for food and resulted in asking some major questions as regards fundamental procedural rights. For instance, a guarantee lacks for parties to have their oral say on the application of the loop. And third parties, not yet involved in the procedure, are under certain circumstances possibly deprived from access to court, especially if the reparation after the loop has been applied, did not take the form of an administrative decision. Furthermore, courts have to stay aware of the separation of powers and hence their impartiality. In case an administrative court gives the administration too far-reaching instructions on how to repair an administrative decision, the risk arises the citizens fear (justified) partiality on the part of the court.

Keywords: Access to court, Separation of powers, Fair trial, Impartiality, Administrative loop

JEL Classification: K00, K19, K23, K41