In a time of crisis it’s important to act decisively
and suggest solutions that will support the economy.
That’s why a legislative proposal has been submitted – the Crisis and Recovery Bill.
By significantly simplifying the decision-making process, projects could be realised much faster.
At least, that’s the intention.
According to Jan Jans, Professor of Administrative Law, this bill may actually have the opposite effect.
One of the problems resulting from the economic crisis is that there is too little construction work. At the same time, and partly because of that, unemployment is increasing. As a result, the Cabinet wants to speed up investment in all kinds of infrastructure. Projects which were already in the queue are going to be tackled sooner to get the Netherlands back to work. The Crisis and Recovery Bill is intended to speed up the decision-making procedures for this type of major project.
Jans: ‘You can’t just construct a four-lane motorway through a nature reserve. You have to go through all kinds of rules and procedures first that usually take a lot of time. This legislative proposal is introducing a lot of new aspects to administrative procedure law to try to curtail the length of the process for this kind of project. However, two of the new aspects could actually result in more delay.’
One of these new elements is the application of the principle of relativity in the legal protection system under public law. Jans: ‘In normal circumstances, citizens are permitted to protest against a new road, for example. The principle of relativity means that it will only be possible to invoke the violation of a legal rule if that legal rule was intended to violate your interests.’ If that is not the case, then a government decision will not be submitted to an administrative tribunal for assessment.
‘Say that you have a restaurant on the edge of a nature reserve’, says Jans. ‘In contravention of the nature conservation rules, a permit is granted for the building of another restaurant. In the present situation the owner of the first restaurant can object because the new permit contravenes the nature and environmental protection laws. If the principle of relativity is introduced, he would no longer be able to appeal on those grounds and only – I’m picking an example at random – the Natterjack toad, protected in that area, would be able to appeal to the courts. And that’s not something they tend to do.’
The principle of relativity would thus ensure that opponents would be less able to appeal to the courts, but there would also be fewer opportunities to enforce the law. According to Jans, this would mainly be at the expense of rules concerning protected plants and animals. ‘You could say that the choice is in the hands of the legislator', states Jans. ‘We have major problems, we are in a crisis, and the aim is to speed up such processes, even if that’s at the expense of the environment. ’ However, many of the nature and environmental protection norms are originally European.
The European law background of these standards means that the extent to which the environmental standards apply is actually determined by the European Court of Justice. When an administrative tribunal is faced with a question about the remit of a violated environmental standard, it must turn to the European Court of Justice (Article 234 EC Treaty). Jans: ‘The average length of such procedures is between seventeen and eighteen months, and bang goes your time saving.’
The second ‘new issue’ in the Crisis and Recovery Bill is that a court can decide to let a decision stand, even if it contravenes the legal rules. In this case too, Jans expects it to be the rules governing nature and environmental protection that will be compromised. This will result in problems with the Aarhus Convention, to which the Netherlands, as well as the EC, has committed itself.
Based on this Convention, the courts are required to investigate the ‘substantive and procedural legality’ of environmental decisions, and in the case of unlawfulness, provide ‘adequate and effective remedies’. Thus, if a court decides to interpret its right to let unlawful decisions stand loosely, then this will lead to tensions with the Aarhus Convention. And as the Aarhus Convention has also been ratified by the EC, conflicts concerning it could also end up at the European Court of Justice. Just like the question of the extent to which environmental standards have been violated, this could also lead to significant delays. Here, too, the Crisis and Recovery Bill is thus also more likely to result in delays than in speeding up the process.
Jan H. Jans (1956) is Professor of Administrative Law at the University of Groningen. He worked previously for the University of Amsterdam, first as Professor of European Environmental Law, then as Professor of European Union Law. Jans is a member of the Committee for the Environmental Impact Assessment, vice chair of the complaints advisory committee of the Netherlands Competition Authority, deputy judge for the court in Assen and editor of SEW, Journal of Environmental Law, Legal Issues of Economic Integration, Journal for European Environmental & Planning Law (JEEPL),
Review of European Administrative Law
(REALaw) and The Columbia Journal of European Law. He is also a member of the Research Committee of the IUCN Academy of Environmental Law and of the Avosetta Group of European Environmental Lawyers.
For more information: Jan Jans.
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