Towards a more intense incidental judicial review of generally applicable rules on general principles of law
PhD student: Mrs M. van Zanten
Promotor: Prof R.J.G.M. Widdershoven
Duration: 1/9/2018 - 31/8/2022
In contrast to the general possibility of bringing an appeal to administrative courts against individual administrative decisions, the Dutch General Administrative Law Act precludes the possibility of direct appeal against generally applicable rules (secondary legislation). Administrative judges are nonetheless empowered to review generally applicable rules in the course of an action brought against an individual administrative decision which is based on the general rule concerned (incidental judicial review). In such cases, administrative judges do have the jurisdiction to review generally applicable rules for compliance with general principles of law, but can only declare a general rule invalid based on the unreasonableness or arbitrariness of its tenor and operation. For different reasons, the intensity of this test is considered too restraint in literature and, presumably, by the Dutch administrative judges themselves. Therefore, this PhD research aims to examine the question of how a more intense incidental judicial review of generally applicable rules on national general principles of law can be realised in the Netherlands. This question is approached by analysis of case law, and related and relevant literature, from the European Court of Justice, the European Court of Human Rights and the courts in the Netherlands, Germany and France.