In the shadow of the Allowances affair, it seems that the Council of State will better protect citizens against disproportionately harsh government decisions. The promise of ‘responsive justice’, which is considered a new ambition in administrative law, seems to have been fulfilled this week. From now on, the Council of State will take the question of whether the government decision was suitable, necessary and balanced as the criterion for ‘proportionality’. In other words, a more intensive, more differentiated assessment, which should yield concrete, ‘polite justice’ by the citizen. No more ‘bureaucratic’ or ‘autonomous law’ in which the administrative court is obliged to keep a distance. I quote it now advice of the advocates general Wattel and Widdershoven that preceded the verdict. So more right on your path, governments.
In the three example cases that the Grand Chamber had in session in May and (only) now assessed, In one case, the relevant government decision simply remained intact. A penalty of half a ton for a landlord who was ordered by the city of Amsterdam to stop illegally renting out rooms for a lot of money in a building where that was not allowed – half a ton of penalty payments still turned out to be ‘proportionate’. But the two closures of ‘drug buildings’ were tinkered with.
The department selected these three issues for a session of the special ‘Grand Chamber’ last year – supplemented by counselors from two other highest administrative courts. In this way, a matter of principle can be discussed and reassessed together. Something that was lacking in the Allowances affair – nobody at the Council of State noticed in time that something was going wrong.
In May, the hearing was therefore about ‘proportionality’: the consequences of a government decision must be in reasonable proportion to the interest served by the rule. In a domestic way: no penalty of ten thousand euros for a garbage can that was taken out too early. But how do you fill in something like that? Unfortunately, the verdict was in the legal jargon in which an ‘argument succeeds’, if someone is proved right. Sometimes as a reader you have to count denials before you know whether the judge says yes or no: “Not it has become apparent that the court not has taken into account all relevant circumstances at the time of its decision in the assessment, so that no ground is subject to the judgment that she not was allowed to provide himself in the case.” It is never too late not to proceed, dear judges.
Nevertheless. Could the government have been satisfied with a less drastic measure in this case? Is home closure effective? How serious is the infringement of citizens’ fundamental rights? How much freedom did the government have? in this case, how detrimental are the consequences for citizens, how serious are the interests defended by the rule? The administrative court thus has a handful of questions. The residents of two drug houses received a little more protection from the Grand Chamber than they might have previously counted on. One municipality, Harderwijk, should think again about the consequences for the family with six children. When a drug building is closed, the lease is often also terminated. Attempts to relocate are usually blacklisted by aspiring tenants with drug connections.
What is more important, a safe neighbourhood, less local drug trade or a ruined family: homeless and broken up. Note – in both cases, the drug traffickers themselves had long been arrested and imprisoned. This concerns the consequential damage. Municipalities should also look at the current situation, in which trade has ceased, customers seem to have disappeared and the neighborhood is no longer complaining. For the family, fundamental rights are at stake, home rights and private life, protected by Art. 8 of the Human Rights Convention, the judge concluded. The mayor may no longer ignore such consequential damage. The other municipality, the Frisian Waadhoeke, would make the three main residents self-employed with the closure of the house.
I also hear an echo of the Benefits Matters in this. The broader consequences (bankruptcies, custodial placements, divorces, unemployment) were left out of the picture. Because it wasn’t asked, it was kept secret or hidden.
A version of this article also appeared in NRC Handelsblad on 5 February 2022
A version of this article also appeared in NRC on the morning of February 5, 2022