Council of State: advisory body and administrative court
The Council of State has two different functions. It advises the Government and Parliament on legislation and governance, and its Administrative Jurisdiction Division is the country’s highest administrative court with general jurisdiction. The basis for the Council of State’s functions can be found in articles 73, 74 and 75 of the Constitution.

Like the House of Representatives and the Senate, which together form the States-General (Parliament), the General Court of Audit and the National Ombudsman, the Council belongs to the High State Councils. These are bodies regulated by the Constitution, each with its own specific task, which it carries out independently of the Government.

Position
Her Majesty the Queen is the President of the Council of State. The Council consists of the Vice-President, who is in actual fact in charge, and a maximum of 28 members, known as State Councillors. State Councillors are appointed for life by the Queen, by Royal Decree, on the nomination of the Government and the recommendation of the Council itself. They are chosen on the basis of their expertise and experience in legislative, administrative or judicial matters. the Council is consulted regarding the nomination of the Vice-President.
The State Councillors represent a cross-section of political and social streams in the Netherlands, and are mainly drawn from the ranks of judges, practising lawyers, senior officials, professors, politicians and administrators. The State Councillors meet in the Plenary Council every Wednesday to adapt their opinions on draft legislation. The Council of State for the Kingdom, which contains two extra members representing the Netherlands Antilles and Aruba respectively, meets once a month. The Plenary Council meets in closed session.

There are also part-time State Councillors at a maximum of 50. All State Councillors and part-time State Councillors are members of the Administrative Jurisdiction Division which performs the Council’s task of administration of justice. Hearings of the Administrative Jurisdiction Division are open to the general public. 

Staff
The Council of State has a staff of about 600 people, some 225 of whom are lawyers. The bureau, headed by the Secretary, comprises the following:

• the Legislation Department, with a staff of lawyers and administrative officers, assists the Council in its advisory work;
• the Administrative Jurisdiction Department, made up of units comprising lawyers and administrative officers, assists the Administrative Jurisdiction Division in its work as an administrative court;
• the Support Services Department, which is responsible for finances, personnel, logistics and other matters;
• the Knowledge and Research Section, the Communication Section and the Internal and External Relations Section.

Advisory body on legislation

The Council of State provides the Government with independent advice on:

• bills introduced in Parliament by the Government;
• international agreements which the Government puts before Parliament for approval;
• orders in council promulgated by the Crown;
• other matters on which the Government seeks the Council’s advice.

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The House of Representatives also seeks the Council’s advice on Bills initiated by one or more members of Parliament before considering them in the House. Advisory opinions are prepared by one of the Council’s four sections, each of which deals with Bills originating from one or more ministries. The draft advisory opinions are submitted to the Plenary Council for debate and adoption.

In preparing its advisory opinions the Council pays particular attention to the following: 

Quality of policy analysis
 

• Is the problem that is being addressed one which can and should be solved by legislation?  
• Will the proposed legislation be effective, and the proposed solution efficient and balanced as regards costs and benefits?  
• Will it be possible to apply and enforce the law and to monitor its effects?

Legal aspects

• Is the Bill compatible with higher law: the Constitution, international treaties (such as the human rights conventions) and European law (or, in the case of a draft order in council: statutory law)?  
• Is it in accordance with the principles of democracy and the rule of law?  
• Is it compatible with the principles of good legislation, such as equality before the law, legal certainty, proper legal protection and proportionality?  
• Will it fit well in the existing legal system?

Technical aspects

• Is the Bill well drafted from a technical point of view?  
• Does it establish a logical, systematic regime?

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At the end of the advisory opinion, the Council gives its conclusion (dictum). This may be negative in that it recommends against submitting the Bill or promulgating the order in council, or it may recommend that before submitting the Bill or promulgation the order in council certain amendments have to be made. If the Council’s opinion is negative, the proposed legislation has to be discussed again in the Cabinet.

Once the Council has given its opinion, the responsible minister presents a report (nader rapport) to the Queen, containing a reply to the observations of the Council. These observations may induce the minister to introducé certain amendments to the Bill and may even lead to the conclusion that it should not be submitted to the House of Representatives. The Council of State’s opinion on a Bill is made public at the moment the Bill is introduced into the House of Representatives. The Council of State’s advisory opinion on a draft order in council is made public when the final text of the order in council or royal decree, is published in the Bulletin of Acts and Decrees.

Administrative jurisdiction

Tasks
The Administrative Jurisdiction Division is the highest administrative court with general jurisdiction in the Netherlands. It hears appeals lodged by members of the public, associations or commercial companies against decisions given by municipal, provincial or central governmental bodies. Disputes may also arise between two public authorities. The decisions on which the Division gives judgment include:

• decisions in individual cases (e.g. refusal to grant a building permission);  
• decisions of a general nature (e.g. an urban zoning plan).

Not included are acts under civil law (for example the purchase of land by a municipality or maintenance contracts entered into by a ministry).

In appeal, the Administrative Jurisdiction Division gives judgment on decisions by courts of first instance. In such cases, the administrative law sector of a district court is the first instance to rule on decisions by administrative bodies.

Composition
The Administrative Jurisdiction Division is made up of all State Councillors and part-time Councillors. It is divided into four chambers:

Chamber 1: Town and Country Planning:
deals with cases under the Town and Country Planning Act,
the Transport Infrastructure (Planning Procedures) Act,
the Aviation Act,
the Earth Removal Act,
the Nature Conservancy Act, etc.

Chamber 2: Environment:
deals with cases under the Environmental Management Act,
the Nuclear Energy Act,
the Pollution of Surface Waters Act,
the Soil Protection Act and the Noise Abatement Act, etc.

Chamber 3: General Appeals:
deals with cases concerning building permissions, grants, tree-felling permits, education and healthcare cases, water boards, etc.

Chamber 4: Appeals in aliens cases
deals with cases under the Aliens Act (general admission, asylum, etc.).

In the cases heard by Chambers 1 and 2 the Administrative Jurisdiction Division is the court of first and final instance; no appeal is possible.

In the cases heard by Chambers 3 and 4 the Administrative Jurisdiction Division acts as a court of appeal from decisions given by the administrative law sector of a district court.

The Administrative Jurisdiction Division is not the only supreme administrative jurisdiction in the Netherlands. The Central Appeals Court in Utrecht is the highest court in the sphere of social security and civil service cases. In the area of socio-economic administrative law, the highest court is the Administrative Court for Trade and Industry.

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Court hearings
Most cases are heard in public. At a hearing, parties may express their views and the Administrative Jurisdiction Division may put questions directly to the parties. Cases are heard by a chamber of three State Councillors or by a single State Councillor.

Provisional relief
Applications for provisional relief and injunctions may be submitted to the President of the Administrative Jurisdiction Division. In general, the decision taken in such proceedings lapses once judgment is given on the merits. Provisional relief allows the President to make special arrangements, for example to prevent a decision by an administrative authority (central, provincial or local government) from having irreparable consequences.

Judicial review
In first and final instance, the Administrative Jurisdiction Division reviews administrative decisions and determines whether the administrative body concerned acted in accordance with the law. The key question in such proceedings is whether the decision is compatible with the law and with the principles of good administration, in both formal and substantive terms. In appeal, the Administrative Jurisdiction Division reviews the decision of the district court appealed against for its conformity with the law.

The formal principles of good administration involve such questions as:

• Is the decision prepared with care and without bias on the part of the authority?  
• Are appropriate reasons given?  
• Is the decision clear and unambiguous?

The substantive principles of good administration involve such questions as:

• Did the authority strike a fair balance between the interests involved?  
• Are the interests of the individual harmed disproportionately?  
• Did the authority use its power for a purpose different from the one envisaged by the legislature when conferring it?  
• Are legal certainty and equal treatment guaranteed for the individual?

Judgment
The Administrative Jurisdiction Division’s judgment may take one of the following forms:

• It may declare the appeal well founded and quash all or part of the administrative decision, in which case the administrative authority will have to give a new decision, unless the judgment of the Administrative Jurisdiction Division replaces the administrative decision. On appeal, it may declare the appeal well founded and quash all or part of the district court's decision.  
• It may declare the appeal unfounded: the administrative decision is upheld. On appeal, it may declare the appeal unfounded and uphold the district court's decision.
   
• It may declare the appeal inadmissible. In this case the Administrative Jurisdiction cannot rule on the merits because certain conditions have not been met: for instance, the notice of appeal was not submitted within the set time, or the court fees were paid too late.  
• It may find that it has no jurisdiction, for instance because the claim must be heard by a different court.

A judgment given by the Administrative Jurisdiction Division is final. No further appeal is possible. The full text of almost all judgments is published on the Council of State’s website.

General information

Every year, the Council of State produces some 600 advisory opinions on draft legislation, about 95% of them within three months. Approximately 2,000 cases and 1,000 applications for provisional relief are brought annually before Chambers 1 and 2 of the Administrative Jurisdiction Division; over 2,000 cases and 300 applications for provisional before Chamber 3; and an average of 4,500 aliens cases before Chamber 4.

The Council of State is located in a number of buildings in the centre of The Hague. The Plenary Council meets at its Binnenhof premises every Wednesday. Hearings before the Administrative Jurisdiction Division take place at Lange Voorhout 3.

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