A government decision can have far-reaching consequences. A penalty payment running into tens of thousands of euros, the closure of your home or business premises, a fine, or the withdrawal of a permit your company depends on. For a long time you had little room to manoeuvre in such cases: as long as the administrative body stayed within the letter of the rules, the decision would usually be upheld by the court — however harshly it turned out.
That picture has changed in recent years. Partly under the influence of the childcare benefits scandal, the administrative courts have in recent years tested government decisions more intensively against the principle of proportionality. That review is not equally strict in every case — its intensity varies by type of decision. And with the bill on the Act strengthening the safeguarding function of the General Administrative Law Act (Wet versterking waarborgfunctie Awb), that protection could be reinforced further. In this blog we explain what has changed and what it means for you when you want to challenge a government decision.
What is the principle of proportionality?
The principle of proportionality is one of the general principles of good administration and is laid down in Article 3:4 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb). That article has two paragraphs. The first requires the administrative body to weigh the interests directly involved in the decision. The second contains the actual proportionality standard: the adverse consequences of a decision for one or more interested parties may not be disproportionate in relation to the aims pursued by that decision.
In plain language: the government may pursue an objective — think of maintaining public order or tackling violations — but the means it deploys to do so may not weigh more heavily than necessary. The rationale of the principle is therefore not that every adverse consequence must be removed, but that unnecessarily adverse consequences must be prevented.
A related rule applies to policy rules. Under Article 4:84 Awb, an administrative body acts in accordance with its policy rule, unless doing so would, because of special circumstances, have consequences for an interested party that are disproportionate in relation to the aims pursued by the policy rule. Here too, proportionality acts as the escape valve against unfair outcomes.
The old line: the deferential “arbitrariness test”
Until recently the administrative courts reviewed decisions very cautiously. The standard was the so-called arbitrariness criterion, which originated in the well-known Maxis/Praxis ruling of 1996. The court only asked whether the administrative body, after weighing all the interests involved, could reasonably have reached its decision. Only where the balance was so lopsided that no reasonable administrative body could have decided as it did would the court intervene.
In practice that threshold was exceptionally high. Citizens and entrepreneurs who were disproportionately affected by a decision were therefore often left empty-handed — even where their situation was dire.
The turning point: the February 2022 rulings
On 2 February 2022, the Administrative Jurisdiction Division of the Council of State set a new course in what are known as the February rulings. In the best-known case — the closure of a home in Harderwijk under the Opium Act (Article 13b, the so-called Damocles Act) — the Division expressly departed from the old arbitrariness criterion.
Since then, where there is reason to do so, the court assesses three points of view:
- Suitability — is the decision suitable for achieving the intended objective?
- Necessity — was the measure necessary, or could a less far-reaching measure have sufficed?
- Balance — is the decision, all things considered, in reasonable proportion to the consequences for the person concerned?
Importantly, these three points of view are not applied in every case as a fixed, mandatory “three-step test”. The court determines on a case-by-case basis, in line with the grounds put forward, whether and to what extent suitability, necessity and balance come into play. The intensity of the review is also not fixed, but works as a sliding scale: the more weighty the citizen’s interests, the more serious the consequences, and the more a decision touches on fundamental rights, the more intensively the court will review it. In the Harderwijk case, the Division held that the mayor had paid insufficient attention to the interests of the tenant and his partly underage children — for instance, to the question of whether the family could still return to the home after the closure.
Extended to statutes and bound decisions
The development did not stop there. On 1 March 2023, the full chamber of the Division ruled in two childcare benefit cases on the review of an Act in the formal sense. The starting point remains that the administrative court may not review such an Act substantively against the Constitution or against general principles of law — the review prohibition in Article 120 of the Constitution stands in the way. The court can, however, assess whether the application of a statutory provision should be set aside in a specific case, but only in the case of special circumstances that the legislature did not (fully) take into account when adopting the Act. Tellingly, in these two cases the Division held precisely that there were no such special circumstances: the legislature had consciously accepted the consequences of the strict application deadline. The room for the court here is therefore narrow.
The Trade and Industry Appeals Tribunal (CBb) refined the line on 26 March 2024 for bound decisions — decisions in which the administrative body has no discretion. Such a decision can also be reviewed against the principle of proportionality, even where it is based on a generally binding regulation. An important nuance applies, however: in the case of a bound power, the general weighing of interests is already contained in the regulation. The review therefore focuses on the balance “at the bottom line” — the question of whether application in the individual case works out unreasonably onerously. So it is not the case that a full new weighing of interests is open in every bound decision. The common thread in all these rulings is nonetheless the same: the human dimension is gaining a firmer place in administrative law.
What does the Act strengthening the safeguarding function of the Awb bring?
The case law has now largely crystallised. In addition, a legislative process is under way that aims to anchor legal protection further. This concerns the bill on the Act strengthening the safeguarding function of the Awb, which, among other things, seeks to broaden the meaning of the principle of proportionality (through an amendment to Article 3:4, paragraph 2, Awb) and contains additional procedural safeguards for citizens. There is also an intention to amend Article 120 of the Constitution, so that formal statutes can in certain cases be reviewed against fundamental rights.
Both tracks are emphatically not yet applicable law: they concern a bill and a legislative intention respectively. As long as Article 120 of the Constitution has not been amended, the existing review prohibition continues to apply. The direction is clear — a more responsive administrative law with greater attention to the human dimension — but the current legal position is still determined by the case law described above.
What does this mean for you in practice?
For anyone who clashes with the government, this is good news. A decision that appears formally correct is not therefore automatically lawful. If the consequences for you are disproportionately severe, the principle of proportionality offers a real ground to challenge the decision. This plays a role in, among others:
- an order subject to a penalty payment or an order subject to administrative enforcement;
- an administrative fine;
- the closure of a home or business premises (for example under the Damocles Act);
- the withdrawal or refusal of a permit;
- recovery and revision decisions by benefit or allowance authorities.
It is crucial that you mount a timely and well-substantiated defence. The court assesses the dispute on the basis of what has been put forward in the proceedings (Article 8:69 Awb) and reviews proportionality in line with the grounds advanced. This means that your lawyer must substantiate the disproportionality concretely and specifically, with the facts, the personal circumstances and any less burdensome alternatives that weigh heavily in your case. A general complaint that a decision is “too strict” is not enough.
Bear in mind, moreover, that an objection is in principle subject to a six-week time limit, calculated from the day after the decision is announced. Do not wait too long, therefore, before seeking legal advice.
Law & More is here to help
Administrative law is very much in motion, and the proportionality review offers real opportunities to challenge a disproportionate decision. At the same time, it takes considerable legal precision to make the most of those opportunities. The lawyers of Law & More have extensive experience with objection and appeal proceedings against the government and assist both entrepreneurs and private individuals.
Have you received a decision whose consequences are disproportionately severe? Then contact us without obligation. We would be happy to assess your situation and determine the best strategy together with you.
Frequently Asked Questions (FAQ)
What is the principle of proportionality?
The principle of proportionality is a general principle of good administration, laid down in Article 3:4, paragraph 2, Awb. It means that the adverse consequences of a government decision may not be disproportionate in relation to the aim pursued by that decision. The rationale is not that every adverse consequence is removed, but that unnecessarily adverse consequences are prevented.
What has changed about the proportionality review?
Until 2022, the administrative courts reviewed decisions cautiously on the basis of the arbitrariness criterion. Since the February 2022 rulings of the Council of State, the court can assess the suitability, necessity and balance of a decision. This does not happen in the same way in every case: the intensity of the review increases as the interests and the consequences for the citizen weigh more heavily.
Can I challenge a decision by the municipality if it works out disproportionately?
Yes. If the consequences of a decision are disproportionately severe for you in relation to its aim, you can challenge it through an objection and, if necessary, an appeal, relying on the principle of proportionality. It is important that you substantiate the disproportionality concretely with your personal circumstances and with any less burdensome alternatives.
What is the difference between a punitive and a non-punitive sanction?
A punitive sanction, such as an administrative fine, is aimed at inflicting harm and has traditionally been reviewed intensively. A non-punitive or remedial sanction, such as an order subject to a penalty payment or a recovery decision, is aimed at restoring a situation. These non-punitive decisions, too, are now reviewed more emphatically against the principle of proportionality.
What does the Act strengthening the safeguarding function of the Awb entail?
This is a bill that aims to strengthen the protective function of the Awb, among other things by broadening the principle of proportionality (through an amendment to Article 3:4, paragraph 2, Awb) and additional procedural safeguards. It is not yet applicable law. The same applies to the intention to amend Article 120 of the Constitution.
Within what time limit must I object to a decision?
In principle a six-week objection period applies, calculated from the day after the decision is announced. Because this period is short and the defence must be well substantiated, it is advisable to seek legal advice in good time.
