Flexibiliteit in de Omgevingswet als opgave voor het constitutioneel organisatierecht
Flexibility under the Environment and Planning Act as a Challenge for Constitutional Law on Public Organisation
In 2024, the Environment and Planning Act (Omgevingswet) entered into force in the Netherlands. This Act affects virtually everyone in one way or another, as it contains the rules governing activities that impact the physical living environment. The Environment and Planning Act introduces several innovative features. Notably, for the first time, new administrative principles—aimed at flexibility in both regulation and intergovernmental relations—have been systematically translated into legal instruments. Because these instruments are novel and have implications for the foundations of the democratic rule of law, this traditional legal doctoral research examines the areas in which they are innovative and the challenges they pose for the desirable design of future Dutch constitutional law.
The research shows that the Environment and Planning Act contains at least two innovative types of legal elaboration aimed at flexibility. The first concerns flexibility in rules addressed, inter alia, to citizens; the second concerns flexible relationships between administrative authorities. Both forms have been developed in their own distinct ways. This study illustrates how each form creates specific opportunities and risks for the structure of the democratic rule of law. It is noteworthy that some instruments successfully combine increased flexibility with sufficient safeguards to protect the position of, for example, the legislature or citizens. Where such safeguards are lacking, this directly results in risks to democratic governance and the equal treatment of citizens under the law. Positive examples within the Act include a new delegation framework and a broad legal basis for experimentation, both of which effectively combine flexibility with rule-of-law guarantees.