NL: Relaxation of rules on excusable exceeding of deadlines

 

The General Administrative Law Act (Awb) has many deadlines that are strictly applied. Perhaps the most important deadline is the deadline for submitting a notice of objection or appeal. Failure to submit this in time will normally lead to the inadmissibility of the notice of objection or appeal. In that case, the objection or appeal will not be dealt with substantively.

It is true that Article 6:11 of the General Administrative Law Act offers the possibility to dispense with the inadmissibility of a notice of objection or appeal that has not been submitted in time, if it cannot reasonably be concluded that the petitioner has been in default, but this provision was interpreted very strictly (partly for reasons of legal certainty).

On 30 January 2024, the Grand Chamber of the Trade and Industry Appeals Tribunal (hereinafter: CBb), consisting of judges from the CBb, the Central Appeals Court and the Administrative Jurisdiction Division of the Council of State, issued an important ruling on the excusability of exceeding a deadline. According to the CBb, special circumstances should be taken into account more in the assessment of this (a „case-oriented, contextual approach“).

Exceeding the deadline, not culpable

The judgment mentions a number of examples in which the petitioner cannot be blamed for exceeding the deadline. In the first place, one can think of personal circumstances on the part of the claimant himself, such as psychological incapacity, serious illness or accident of the petitioner or illness or death of his relatives and the care responsibilities that go with this. Secondly, one can think of external circumstances that cause overload or stress for the applicant, such as a natural disaster, a contagious animal disease on the farm or a fire in the home or in a business premises.

Minor culpability, but not inadmissibility

Even if there is a slight culpability with regard to the delay in the time limit, it remains possible under certain circumstances not to attribute it to the petitioner. An important factor in this regard is the capacity of the applicant. For example, it can make a difference whether it concerns an individual citizen, a small or large company, an interest group or an administrative body, and the degree of expertise and professionalism of these entities.

If it is established that there is a lack of culpability, it is then important whether there is a ‚two-party situation‘ (e.g. the granting of a subsidy) or whether there is a multi-party dispute (e.g. the granting of an environmental permit for the realisation of a residential area).

Submit a notice of objection or appeal as soon as possible

Subsequently, it is required that the notice of objection or appeal is submitted as soon as possible if this could reasonably be required. Until this ruling, the line in case law was that in cases where an interested party only becomes aware of a decision when the objection or appeal period has already expired in full or for the most part and the interested party could not take cognizance of the decision earlier, the lodging of an objection or the lodging of an appeal is in any case not culpably late if this is done within two weeks after he has become aware that a decision has been taken which may affect its interests. With this ruling, this period is now set at six weeks in cases where the objection or appeal period is also six weeks (in principle, this period is used in other statutory periods).

Relaxation has immediate effect

It is striking that the ruling explicitly states that the relaxations have immediate effect. This means that they are applied in all cases and at every stage of the proceedings, including cases in which the administrative body or an administrative court has already ruled on the excusability of the delay at an earlier stage of the proceedings, and that decision or decision has been the subject of an appeal or appeal which has not yet been decided!

 

For further information, please contact:

Ramon Ridder, Partner

Labré advocaten, Amsterdam

e: ramon.ridder@labre.nl

t: +31 20 3052030

 

#WLNadvocate #TheNetherlands #Amsterdam #lawfirm #law #legal #corporatelaw #network #administrativelaw #article #business #trade #industry #goverment