NJBlog, 13 March 2012: 'Make way for interest groups'

"Interest groups play an important role in society and in the - to which I limit myself here - administrative law business. They provide a platform for interest articulation to citizens and businesses. This makes them a useful point of contact for administration and legislators. A role that is all the more important now that there is less and less organisation of interests through political parties. The quality of decision-making and regulation benefits from the involvement of interest organisations. Moreover, the voice of citizens and businesses can be heard effectively through these organisations. Interest organisations are also important in the context of legal protection. In many cases, they take the lead in procedures and ensure that the quality of decision-making and regulation is tested by the courts. In doing so, the organisations usually have a lot of expertise. Furthermore, this makes it possible to obtain a court opinion on an issue in a more general sense, without having to bring a series of individual cases. Not an unnecessary luxury, partly in view of the impending increase in court fees.

(...) Yet in recent years, attempts have been made in administrative law to reduce precisely their role.

An example of the latter offers the autumn 2008 divisional rulings (LJN BF3913, LJN BF3912, LJN BF3911 and LJN BG1156). In it, the threshold for the admissibility of interest groups is raised. More stringent requirements are imposed on the distinctiveness of statutory objectives. Furthermore, the requirement of actual activities is enforced more strictly. This can no longer include merely opposing a decision in court. In the end, this new line fortunately did not substantially limit the position of interest groups. (...)

Another danger to the position of interest groups arises from case law of the civil courts in proceedings on the legality of regulations. If known, because of Article 8:2 Awb General binding regulations cannot be challenged directly in the administrative courts. Their legality can therefore be challenged in the civil courts. Interest groups can do so on the basis of the collective and general interest action of Article 3:305a BW. However, in proceedings brought by the Privacy First Foundation against the biometric passport, the court (civil sector) declared this organisation inadmissible. This was because the lawfulness of the Passport Act could also be tested indirectly before the administrative court in a case brought by an individual citizen against the decision to refuse a passport due to failure to provide fingerprints (2 February 2011, LJN BP2860). An important role in this seems to have been to avoid the involvement of two types of judges with the risk of 'legal unity'. While in itself a legitimate interest, that judgment can be seriously questioned as it seems to go against the intentions of the legislator. Moreover, the consequence is that the ability of interest groups to litigate against regulations is seriously compromised. After all, they cannot initiate proceedings in the administrative courts themselves. Furthermore, it is unlikely that they would be admitted as interested parties in the proceedings of the individual citizen concerned. In doing so, this passport case also shows well the consequence of reducing the role of interest groups. Now, various proceedings have been conducted across the country with all the legal uncertainty that this entails and are currently awaiting appeal (e.g. LJN BP8841, LJN BT7650, LJN BR7082, and LJN BR4658). Moreover, it appears that the expert input of the said interest group would have added value. It is therefore to be hoped that the court's judgment will be corrected in appeal(s). An alternative to this could be to allow direct appeal against generally binding regulations (including formal legislation) to the administrative court via amending Article 8:2 Awb. This option is preferred because it could eliminate the aforementioned danger of 'legal unity' while preserving the position of interest groups."

Read HERE Prof Tom Barkhuysen's entire article at NJBlog.