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A decision on an objection against and an refusal of a Dutch permit is accompanied by a legal remedy clause (see blog: Dutch license and litigation). This states that an appeal may be lodged with the competent court within 6 weeks of the date of the decision on objection.
This is an Dutch administrative law procedure. The appeal phase ends with the decision. If, after reconsideration, the administrative body comes to the conclusion that the disputed decision cannot be upheld, it is not sufficient to declare the objection (partially) well-founded, but a new decision must take its place. However, if it is not yet possible to make a replacement decision, because a legally prescribed procedure still has to be followed, which may involve a considerable period of time, a different decision must be made (judgment 6 December 2016, ECLI:NL:RVS:2006:AZ3738). also check out my book on Dutch permits: scarce license in the Netherlands.
Appeals against a decision of the licensing authority do not suspend the decision during the appeal procedure. In an urgent situation, an interim injunction may be sought before the administrative court to ensure that the decision is suspended. A decision has immediate effect and a licence that is granted can be used immediately. If an interested party is of the opinion that this will result in damage or an irreversible situation, he or she can try to have the decision suspended and obtain the licence by way of a preliminary judgement. The judge in the review procedure is not bound by this decision.
The ruling on a contested decision by an administrative court is provisional; it is an interim injunction for as long as the main proceedings are still pending (objection or appeal proceedings). This means that an interim injunction does not play a role in the objection procedure or the appeal procedure in which a decision has yet to be made. Therefore, the fact that an interim injunction has been imposed does not mean that the objection or appeal is well-founded. In the preliminary relief procedure, the administrative court may also decide on the appeal lodged. This is referred to as a short circuit: making a decision on the appeal and the request for an interim injunction at the same time. This often occurs in situations where the case is uncomplicated and the judge can decide the appeal at the same time as the interim injunction. An urgent situation is usually one in which the consequences of a decision or execution of a licence are irreversible. And the consequences of implementing a decision can be undone.
If the objection is rejected or the objector disagrees with the decision on the objection, an appeal can be lodged with the administrative law department of a competent court. It is advisable to engage the services of a Dutch administrative lawyer for this purpose. In principle, the case will be heard by one judge, but if the case is unsuitable to be heard by one judge, the case will be heard by three judges (multiple chamber). Appeals are regulated by Chapter 8 of the General Administrative Law Act (Awb). On appeal, the judge will review whether the decision was lawful. It will be examined whether the decision was made in accordance with the Act and whether it has violated one or more of the principles of good administration. This includes the principle of equality, the principle of the protection of legitimate expectations, and the principle of due care. It can also be considered whether a decision is proportionate and whether the principle of proportionality or subsidiarity has been breached.
The judge can make an interlocutory decision. In that ruling, the administrative body may be ordered to take certain action. For example, this may include investigating a specific part of the decision or to provide evidence of certain facts or circumstances. The administrative body must submit the requested information to the court within the set time limit. The other party has an opportunity to respond.
The appeal procedure ends with a final decision rejecting the appeal or declaring it (partly) well-founded. In the latter case, the court considers the grounds of the appeal to be justified, but stipulates that the legal consequences of the disputed decision will be maintained (by virtue of the application of Section 6:22 of the Dutch Civil Code) if the administrative court considers it appropriate.
If the judge of the administrative court finds that the appeal is unfounded, an appeal can be lodged with the Council of State; the highest administrative body. This appeal procedure is regulated by Chapter 8 of the General Administrative Law Act. Both the administrative body and the other party can lodge an appeal with the Council of State against a decision of the court. The appeal must be lodged within six weeks of the date of the court's decision.
Please contact Mark van Weeren regaridng refusalo f your Dutch business permit.
Boetes SZW aan werkgevers vaak onterecht
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