PhD defence: Indirect review by administrative courts of generally binding regulations for proportionality

The administration increasingly uses acts of general application instead of individual decisions to determine the legal position of citizens. Unlike individual decisions, acts of general application cannot be appealed directly before administrative courts. However, administrative courts are allowed to assess these acts in an indirect way in proceedings against decisions that implement or enforce those acts. During these proceedings, administrative courts can also review whether acts of general application comply with general principles of law, such as the principle of proportionality. 

After a long period of judicial restraint, administrative courts have, in recent years, strengthened the legal protection against acts of general application. The childcare benefits scandal has accelerated this development, and the principle of proportionality plays a leading role in it. Administrative courts increasingly examine whether the consequences of acts of general application are proportionate to the objectives that the administration aims to achieve with those acts. This proportionality test is still in full development. 

In her dissertation, Melanie van Zanten examines what further steps Dutch administrative courts can take in the development of proportionality review of acts of general application. In order to answer the research question, a comparative legal study has been conducted, encompassing the legal systems of the European Union, the European Convention on Human Rights, France and Germany.

The dissertation provides an analysis of the state of the art in the Netherlands. Van Zanten concludes that Dutch administrative courts are moving in a direction that can be positively appreciated in itself, but that further steps can still be taken. These further steps are presented as concrete recommendations for Dutch administrative courts for the further development of the proportionality review of acts of general application. A common thread in these recommendations is that, according to Van Zanten, administrative courts should focus less on the consequences of acts of general application for individual cases and more on how those acts affect (other) citizens in a general way.