Administrative Law / Droit administratif
The Netherlands / Pays-Bas
The European Court of Human Rights has prohibited, in its ‘Procola’ case-law, the combination of regulatory advising and adjudication by a same member of a Council of State, in “a same case” or “a same decision”. In the Netherlands, a bill has been sent to Parliament to provide for this problem. In the future, the Council of State will consist of two separate Sections: the Section of Advice and the Administrative Litigation Section. The possibility of a combined appointment of a councillor of State in both Sections, however, is kept open, be it in a limited way. In any case, a member of the Administrative Litigation Section who has been involved in the delivering of an advice of the Council, will not be permitted to take part in the proceedings of a dispute about a case on which this advice has been given. With this bill, ‘Procola-problems’ of a collision of regulatory advice and adjudication are prevented for a great part. Still, there is another development which may set the Council of State at risk in the further future: the so-called ‘Third stage of the reorganization of the Judiciary’. This Third stage consists in taking away the judicial task of the Council of State and conferring this task to (the Courts of Appeal and the Court of Cassation) of the Ordinary Judiciary. The discussion about this possible Third stage is still open in the Netherlands, so that the definitive future of the Council of State is also undecided.
