Judicial Review in Dutch Environmental Law; from the Judge’s Perspective

Abstract

In this chapter the traditional constitutional framework for judicial review, which is based on the assumption that the exercise of administrative powers must be seen as a way of implementing the legislature’s decisions is criticized. The model for judicial review has been reanalysed as part of the Administrative Jurisdiction Division of the Council of State (AJD)’s project on a more comprehensive form of judicial review. The reason for this is the fact that performing a limited judicial review of decisions taken by administrative authorities can no longer be justified, especially if it concerns decisions which have far-reaching consequences for citizens. The development in the direction of considering fuller judicial review is therefore one of the developments in the field of judicial review within the administrative courts in the Netherlands, which this chapter discusses. This development can be seen from the fact that case law indicates that the AJD has reviewed more stringently government decisions, that concern punitive sanctions and decisions with disproportionate consequences. Another development which this chapter examines is the digitalisation of society and the associated digitalisation of government processes. Due to this development, administrative courts are faced with the challenge of how they should exercise their traditional powers of review in relation to administrative decision making which is dependent on operating systems based on big data technologies and algorithms. It is thus important for the administrative courts to ensure that the general principles of law such as ‘fair trial’ and ‘equality of arms’ are sufficiently safeguarded and to apply them in a way that is relevant to the modern (digital) world.