Monthly Archives: January 2016

Montesquieu and marginal review

montesquieu_1In Dutch administrative law, a familiar view entails that the administrative court should not ‘occupy the chair of the executive’. By virtue of its powers, the government would have a ‘discretionary latitude of decision’ in which it is only under democratic control; insofar as it is not a matter of a ‘criminal charge’ there is only space for judicial review beyond the ‘edges’ of the administrative domain. In literature the ‘marginal test’ encounters increasing criticism. Many advocate that the Dutch administrative review of proportionality should align itself to EU law and German law, in which judicial control on proportional weighing of interests has a broader significance. The ever ongoing ‘withdrawal of the legislature’ would require a more sophisticated and nuanced approach whereby the judge can intensify his review in cases in which there is no punitive decision, but nonetheless a breach of important interests or fundamental rights. In addition to the literature, the courts are tending towards a broader review of proportionality. Apart from the question whether there was a ‘criminal charge’, the Administrative Law Division recently ended the so-called ‘alcolock programme'; upon application of that regulation it considered a proportionate weighing of interests ‘insufficiently guaranteed’ (ABRvS 4 maart 2015, AB 2015). Continue reading