Council of State Act as amended by the Act of 22 April 2010 with regard to the restructuring of the Council of State

CHAPTER I. THE COUNCIL OF STATE IN GENERAL

PART 1: COMPOSITION AND TASKS

Section 1
1. The Council of State consists, besides the King as President, of a Vice-President and not more than ten members.
2. The heir to the Throne is entitled by law to a seat on the Council upon attaining the age of eighteen.
3. Other members of the Royal House may be granted a seat on the Council by Royal Decree once they have attained the age of majority.
4. The members of the Royal House who have a seat on the Council may take part in the deliberations, but must abstain from voting.

Section 2
1. The Vice-President and the members are appointed for life on the nomination of Our Minister of the Interior and Kingdom Relations, in consultation with Our Minister of Justice. Vacancies will be published in the Government Gazette, together with the profile of the candidate or candidates sought. The House of Representatives of the States General must hold consultations on the vacancies with the Vice-President at least once a year.
2. The Council must be heard before the appointment of the Vice-President. The Council must make a recommendation for the appointment of the members. The recommendation is made after the Council has heard the division or divisions of the Council to which the member is to be appointed.
3. The members are appointed by Royal Decree to the Advisory Division or the Administrative Jurisdiction Division or to both divisions. The number of members appointed to both divisions may not exceed ten. The appointment may be changed, provided that an appointment to the Administrative Jurisdiction Division may be terminated only at the request of the member.
4. A member may take part in the task of administering justice only if:
a. he has been awarded the degree of Bachelor of Laws and also the degree of Master of Laws by a university or the Open University to which the Higher Education and Research Act applies, for having passed the final examination of a university degree course; or
b. he has obtained the right to bear the title of ‘meester’ for having passed the final examination of a university law degree course at a university or the Open University to which the Higher Education and Research Act applies. Further rules concerning the professional requirements may be laid down by order in council.
5. Degrees awarded by a university, the Open University or an institution of higher professional education, as referred to in the Higher Education and Research Act, or equivalent certificates may be designated by order in council as equivalent for the purposes of subsection 4 (a) to the degree of Bachelor of Laws referred to in that point.
6. Subsection 4 may be derogated from in special cases.

Section 3
1. The tenure of the Vice-President and the members is terminated by Royal Decree:
a. at their own request, and
b. with effect from the first day of the month following that in which they attain the age of 70.
2. The Vice-President and the members may also be dismissed, suspended or, in the event of incapacity on account of sickness, assigned to other duties by the Council in a reasoned decision, and the members may be issued with a warning by the Vice-President, in a reasoned decision, in accordance with chapter 6A of the Judicial Officers (Legal Status) Act, provided that:
‘Procurator General’ is read as ‘Vice-President’;
‘Deputy Procurator General’ is read as ‘the most senior member present by rank of appointment’;
‘at a court or within the authority of Our Minister’ is read as ‘within the Council or within the authority of Our Minister of the Interior and Kingdom Relations’;
‘superior’ is read as ‘vice-president’;
the Council notifies the decisions referred to in section 46p, subsections 5 and 6 of the Judicial Officers (Legal Status) Act to Our Minister of the Interior and Kingdom Relations.
3. Section 46i, subsection 4, section 46k, subsection 5 and section 46l, subsection 2 of the Judicial Officers (Legal Status) Act apply mutatis mutandis, provided that:
‘the judicial officer’ is read as ‘the Vice-President or the member’;
‘on the nomination of Our Minister’ is read as ‘on the nomination of Our Minister of the Interior and Kingdom Relations’;
‘the Supreme Court’ is read as ‘the Council’.
4. Further rules concerning provision for sickness, incapacity for work and unemployment may be laid down by or pursuant to order in council.

Section 4
Only Dutch nationals may be appointed as Vice-President or member.

Section 5
1. The following are incompatible with the office of Vice-President or member:
a. public offices that carry entitlement to fixed remuneration or an allowance;
b. membership of public bodies by virtue of elections called pursuant to a statutory provision;
c. the office or profession of attorney-at-law, attorney of record, civil law notary, accountant, tax adviser or authorised agent;
d. any position whose exercise would be undesirable with a view to the proper discharge of their office or the maintenance of their impartiality and independence or of confidence therein.
2. Positions held by the Vice-President and the members other than their office must be publicly disclosed by the Vice-President. Section 44, subsections 3 to 6 and 8, and section 44a of the Judicial Officers (Legal Status) Act apply mutatis mutandis.

Section 6
1. Before accepting their office the Vice-President and the members must swear the following oath or make the following affirmation:
‘I swear (affirm) that I have made no gift or promise to anyone, either directly or indirectly, under any name whatever or on any pretext whatever, in order to obtain my appointment.
I swear (affirm) that I have not accepted and will not accept, directly or indirectly, any gift or promise from anyone as an inducement to do or refrain from doing something in this office.
I swear (promise) allegiance to the King and that I will always help to uphold the Charter for the Kingdom and the Constitution and will perform my office honestly, conscientiously and impartially.
‘So help me God Almighty!’
(‘This I affirm and promise.’)
2. This oath (affirmation) may also be sworn (made) at a meeting of the Council before the Vice-President, authorised for this purpose by the King.

Section 7
If the Vice-President is unable to attend or the office is vacant, he will be replaced by the most senior member present by rank of appointment.Section 7a

The Council is charged with the duties entrusted to it in articles 35 and 38 of the Constitution.

PART 2: STATE COUNCILLORS AND EXTRAORDINARY COUNCILLORS

Section 8
1. State Councillors may be appointed.
2. They will be chosen from those who have proved their competence or expertise in the field of legislation, public administration or the administration of justice or in related matters.
3. The State Councillors are appointed for life by Royal Decree on the nomination of Our Minister of the Interior and Kingdom Relations, in consultation with Our Minister of Justice. In so far as they are not charged with the administration of justice, they may be appointed for a fixed term of at least three years. Vacancies will be published in the Government Gazette, together with the profile of the candidate or candidates sought. The House of Representatives of the States General must hold consultations on the vacancies with the Vice-President at least once a year. The Council must make a recommendation for an appointment. The recommendation is made after the Council has heard the division or divisions of the Council to which the State Councillor is to be appointed.
4. Section 2, subsections 3 to 5, section 3, section 4, section 5, subsection 1, opening words and (d), and subsection 2 and section 6 apply to them mutatis mutandis.

Section 9
In discharging their duties the State Councillors have the powers of a member of the Council.

Section 10
1. Extraordinary Councillors may be appointed.
2. An Extraordinary Councillor will take part in the activities of the Council or of one of its divisions only in so far as he has been called upon to do so by the Vice-President.
3. Section 2, subsections 3 to 5, section 3, section 4, section 5, subsection 1, opening words and (d), and subsection 2, section 6, section 8, subsections 2 and 3 and section 9 apply mutatis mutandis.

PART 3: THE SECRETARY AND OFFICERS OF THE COUNCIL OF STATE

Section 11
1. A Secretary and such number of Officers of the Council of State as are necessary are assigned to the Council.
2. They are appointed by Royal Decree on the nomination of the Council and their employment is terminated by Royal Decree, after the Council has been heard.

Section 12
1. A person is eligible for appointment as Secretary or Officer of the Council of State if:
a. he has been awarded the degree of Bachelor of Laws and also the degree of Master of Laws by a university or the Open University to which the Higher Education and Research Act applies, for having passed the final examination of a university degree course; or
b. he has obtained the right to bear the title of ‘meester’ for having passed the final examination of a university law degree course at a university or the Open University to which the Higher Education and Research Act applies. Section 1d, subsection 4 of the Judicial Officers (Legal Status) Act applies mutatis mutandis.
2. Degrees awarded by a university, the Open University or an institution of higher professional education as referred to in the Higher Education and Research Act, or equivalent certificates may be designated by order in council as equivalent for the purposes of subsection 1 (a) to the degree of Bachelor of Laws referred to in that point.
3. Subsection 1 may be derogated from in special cases.

Section 13
Before accepting their office the Secretary and the Officers of the Council of State must swear the following oath (or make the following affirmation) at a meeting of the Council before the Vice-President:
‘I swear (affirm) that I have made no gift or promise to anyone, either directly or indirectly, under any name whatever or on any pretext whatever, in order to obtain my appointment.
I swear (affirm) that I have not accepted and will not accept, directly or indirectly, any gift or promise from anyone as an inducement to do or refrain from doing something in this office.
I swear (affirm) that I will perform all the duties of my office honestly and diligently.
‘So help me God Almighty!’
(‘This I affirm and promise.’)

PART 4: OTHER PROVISIONS

Section 14
1. On the proposal of the Vice-President the Council will adopt provisions regulating its work and, in so far as necessary, the other matters that relate to the body as whole and do not solely concern the Advisory Division or the Administrative Jurisdiction Division.
2. The provisions will be published in the Government Gazette.

Section 15
1. The Council takes decisions by a majority of votes.
2. In the event of a tied vote, the chair of the meeting has the casting vote.
3. The Council does not take decisions if fewer than half of the members constituting the Council at that time, including the Vice-President, are present.

Section 16
The Vice-President, members, State Councillors and Extraordinary Councillors must observe secrecy in so far as:
a. the nature of the matter so requires;
b. Our Minister whom it may concern considers this necessary; or
c. the majority of those who have taken part in the deliberations so decide.

CHAPTER II. THE ADVISORY DIVISION

PART 1: COMPOSITION AND TASKS

Section 16a
1. The Council has an Advisory Division.
2. The Advisory Division consists of:
a. the Vice-President, and
b. the members, State Councillors and Extraordinary Councillors who have been appointed to the Advisory Division.
3. The members of the Royal House referred to in section 1, subsections 2 and 3 sit in the Advisory Division. Section 1, subsection 4 applies mutatis mutandis.
4. The Vice-President chairs the Advisory Division. Section 7 applies mutatis mutandis.

Section 17
1. We will hear the Advisory Division on:
a. Bills to be presented by Us to the States General;
b. Drafts of orders in council;
c. Bills to approve a treaty or to approve the intention to denounce a treaty.
2. We will also hear the Advisory Division in the cases prescribed by statute and on all matters on which We consider this necessary.
3. We will submit to the Advisory Division for consideration the drafts of any Royal Decrees annulling decisions of lower government authorities to be introduced pursuant to any statute.
4. The Bills, drafts and decrees must state that the Advisory Division of the Council of State has been heard.

Section 18
1. Before considering any Bills introduced by one or more of its members the House of Representatives of the States General will hear the Advisory Division about them.
2. Where the House of Representatives of the States General deems this necessary, it will also hear the Advisory Division on the Bills referred to in subsection 1 after they have been considered.
3. We will not hear the Advisory Division on Bills introduced to the House of Representatives of the States General by one or more members before they have been passed by the States General.
4. Subsections 1, 2 and 3 apply mutatis mutandis to the two Houses of the States General meeting in joint session.

Section 19
The Advisory Division need not be heard on:
a. Bills to change the central government budget;
b. Bills to approve a treaty or the intention to denounce a treaty, if the treaty or intention has previously been presented to the States General for tacit approval.

Section 20
1. The Advisory Division will draw up the draft of a Royal Decree as referred to in article 136 of the Constitution.
2. Within six months after the draft has been drawn up, Our Minister whom it may concern may submit a reasoned request to the Advisory Division for consideration of the draft. If the Royal Decree differs from the draft or subsequent draft, it will be published in the Bulletin of Acts and Decrees together with the draft referred to in subsection 1 or any subsequent draft. If a request as referred to in the first sentence has not been made within six months, the Royal Decree will read the same as the draft.Section 21

The Advisory Division will also advise Us if it deems this necessary.

Section 21a
1. The Advisory Division will, on request, provide Our Ministers or either House of the States General with information about matters of legislation and public administration.
2. If information is supplied to either House of the States General, the House concerned will arrange for publication as referred to in section 26, subsection 1 (c).Section 22

In the cases referred to in section 17, the matter will be submitted for consideration either by Us, on the proposal of Our Minister whom it may concern, or by Our Minister pursuant to royal authorisation.

Section 23
1. Our Ministers will give the Advisory Division the information it requires in order to carry out its duties.
2. The gathering of information by the Advisory Division from persons other than Our Minister whom it may concern must be arranged through his intermediary.
3. The Vice-President may summon persons to give information and advice to the Advisory Division.

Section 24
The Advisory Division will consult with Our Minister whom it may concern if the Advisory Division or the Minister so requires.

Section 25
The Advisory Division will be informed of Royal Decrees on matters on which it has been heard.

Section 26
1. Our Minister whom it may directly concern will arrange for the publication of:
a. advisory opinions of the Advisory Division requested by Us;
b. advisory opinions as referred to in section 21;
c. information in matters of legislation and public administration as referred to in section 21a.
2. Publication of the advisory opinions referred to in subsection 1 (a) will take place together with the publication of the text presented to the Advisory Division, in so far as changes have been made to it after the opinion is requested, and with publication of the subsequent report to Us. As regards:
a. advisory opinions on Bills presented by Us, this will take place simultaneously with the presentation thereof to the House of Representatives of the States General;
b. advisory opinions on Bills presented by the States General to Us, this will take place simultaneously with the promulgation of the Act;
c. advisory opinions on treaties with other powers and international organisations which are to be submitted to the States General for tacit approval, this will take place simultaneously with the presentation thereof to the States General;
d. advisory opinions on orders in council and other Royal Decrees, this will take place simultaneously with their promulgation.
3. Publication of advisory opinions as referred to in section 1 (a) which cannot be provided for as referred to in subsection 2 as well as publication of advisory opinions as referred to in subsection 1 (b) and information in matters of legislation and public administration as referred to in subsection 1 (c) will take place no later than 30 days after a decision has been taken on the opinion, the recommendation or other proposal of the Advisory Division or on the information in matters of legislation and public administration of that Division. The subsequent report and, where applicable, the text presented to the Advisory Division as well as the Royal Decree, if publication has not been arranged elsewhere, will also be published at the same time. Publication will take place in the manner specified in section 9, subsections 1 and 2 of the Government Information (Public Access) Act.
4. No publication will take place in the cases referred to in section 10 of the Government Information (Public Access) Act.
5. Active publication may be dispensed with if an opinion as referred to in subsection 1 (a) is purely approbatory or only contains remarks of an editorial nature.
6. In its advisory opinions as referred to in subsection 1 the Advisory Division will make proposals for the application of the provisions of subsection 4 or 5.

Section 27
1. The House of Representatives of the States General and the two Houses of the States General meeting in joint session will arrange for publication of the advisory opinions of the Advisory Division referred to in section 18, subsections 1 and 2 or subsection 4, and also provide a written response to these opinions.
2. The advisory opinions will be published together with the written response.
3. No publication will take place in the cases referred to in section 10 of the Government Information (Public Access) Act.
4. Active publication may be dispensed with if the opinion is purely approbatory or only contains remarks of an editorial nature.
6. In its advisory opinions the Advisory Division will make proposals concerning the application of the provisions of subsection 3 or 4.

PART 2: OTHER PROVISIONS

Section 27a
1. When preparing advisory opinions and draft decrees the Advisory Division conducts its deliberations in camera.
2. The Advisory Division takes decisions by a majority of votes.
3. In the event of a tied vote, the chair of the meeting has the casting vote. Notice of this fact must be given in the opinion.
4. The Advisory Division does not take a decision if fewer than half of its members are present.

Section 27b
1. The advisory opinions give reasons.
2. Any person who has expressed a view that differs from that of the majority at the meeting of the Advisory Division may publish a separate opinion.
3. This dissenting opinion will be attached to the advisory opinion of the Advisory Division.

Section 27c
1. The Vice-President will adopt provisions regulating the work of the Advisory Division.
2. These provisions will be published in the Government Gazette.

Section 27d
1. When preparing:
a. an advisory opinion on the annulment of a decision of a lower government authority, or
b. a draft decree on a dispute as referred to in article 136 of the Constitution,
the Advisory Division may summon interested parties, witnesses, experts and interpreters to be heard.
2. Section 45 and sections 8:24, 8:25 to 8:29, 8:31 to 8:36, subsection 1, 8:39, 8:50 and 8:61 of the General Administrative Law Act apply mutatis mutandis.
3. An official designated by Our Minister whom it may concern may be present at the deliberations in order to provide information.
4. Official reports and other documents designated by Our Minister are not made public.
5. The draft of a Royal Decree annulling a decision is not made public.

Section 27e
The Vice-President, members, State Councillors and Extraordinary Councillors will not take part in the deliberations and will not vote if this could compromise their impartiality.

CHAPTER III. THE ADMINISTRATIVE JURISDICTION DIVISION

PART 1: COMPOSITION AND TASKS

Section 30
1. The Council has an Administrative Jurisdiction Division.
2. The Administrative Jurisdiction Division consists of the members, State Councillors and Extraordinary Councillors who have been appointed to the Administrative Jurisdiction Division.

Section 30a
1. A President of the Administrative Jurisdiction Division is appointed by Royal Decree, on the nomination of Our Minister of Justice, in consultation with Our Minister of the Interior and Kingdom Relations, from among the members of the Administrative Jurisdiction Division who meet the requirements specified in section 2, subsection 4. The Council will make a recommendation for the appointment, after hearing the Administrative Jurisdiction Division.
2. The appointment is for life. It may be cancelled only at the request of the President and lapses if the President ceases to be a member of the Council.
3. The President may be replaced by another member of the Administrative Jurisdiction Division who meets the requirements specified in section 2, subsection 4.
4. The President is a member of the Council of State, if necessary in derogation from section 1, subsection 1.
5. The President will adopt provisions regulating the work of the Administrative Jurisdiction Division.
6. The officials designated in writing by the President for this purpose will perform the activities with which the Registrar is charged by or pursuant to statute.

Section 30b
The Administrative Jurisdiction Division is charged with trying the disputes referred to it by law.

PART 2: OTHER PROVISIONS

Section 42
1. On the proposal of the President, the Administrative Jurisdiction Division will establish and staff single-judge and full-bench chambers (with three members) and grand chambers (with five members).
2. When a chamber consists of three or five members, one member acts as presiding judge.
3. Members of the Administrative Jurisdiction Division who do not meet the requirements specified in section 2, subsection 4 may not:
a. sit as a single-judge chamber; or
b. form the majority of the members of a full-bench or a grand chamber.
4. A member of the Administrative Jurisdiction Division who has been involved in the preparation of an advisory opinion of the Council may not take part in the hearing of a dispute on a legal issue to which that opinion related.

Section 43
1. In chambers the presiding judge of a full-bench or a grand chamber must ask the other members individually for their views. The presiding judge must give his views last.
2. Each member must participate in the decision-making.
3. An absent member may not arrange for one of the members present to speak on his behalf, nor may he submit his views in writing.

Section 44
Members of the Administrative Jurisdiction Division and the officers working for this division are prohibited from:
a. divulging matters that have come to their attention in that capacity other than as may be necessary for the performance of their duties;
b. divulging sentiments that have been expressed in chambers; and
c. entering into contact in any special way with parties, counsel or those assisting a party about a case pending before them or a case which they know or should reasonably be expected to know will be brought before them.

Section 45
1. The Administrative Jurisdiction Division will adopt a procedure for dealing with complaints.
2. Complaints may not be made about a judicial decision.
3. Title 9.1 of the General Administrative Law Act applies mutatis mutandis, with the exception of the phrase ‘or another’ in section 9:1, subsection 1, provided that ‘administrative authority’ is taken to mean the Administrative Jurisdiction Division.
4. The procedure referred to in subsection 1 will be published in the Government Gazette.

Sections 46 – 57 (repealed)

CHAPTER IV. CONCLUDING PROVISIONS

Section 58
1. No prosecution or civil action may be brought against the vice-president, the state councillors or extraordinary state councillors as a result of any utterance made during deliberations in Council, in the Advisory Division, in the Administrative Jurisdiction Division or in any chamber of the Administrative Jurisdiction Division, or as a result of any written submission in that connection.
2. Section 42 of the Judicial Officers (Legal Status) Act applies mutatis mutandis to members of the Administrative Jurisdiction Division, provided that ‘Our Minister’ is read as ‘Our Minister of the Interior and Kingdom Relations'.

Section 59
This Act may be cited as the Council of State Act.

TRANSITIONAL PROVISIONS CONCERNING THE ACT AMENDING THE COUNCIL OF STATE ACT IN CONNECTION WITH THE RESTRUCTURING OF THE COUNCIL OF STATE (BULLETIN OF ACTS AND DECREES 2010, 175).

SECTION XIV
1. Those who at the time of this Act’s entry into force are members of the Council of State remain members of the Council of State. If necessary, section 1, subsection 1 will not be applied.
2. Members of the Council of State are members of the Advisory Division and of the Administrative Jurisdiction Division, unless provided otherwise by Royal Decree, notwithstanding section 2, subsection 3, third sentence. If necessary, section 2, subsection 4 will not be applied.
3. Members who do not meet the requirements laid down in section 2, subsection 4 may not hold the position of president of the Administrative Jurisdiction Division.
4. Members who do not meet the requirements laid down in section 2, subsection 4 may not:
a. stand in for the president of the Administrative Jurisdiction Division;
b. sit as a single judge;
c. form the majority of the members of a full-bench chamber.
5. As long as the Council of State has more members than provided for in section 1, subsection 1, new members may be appointed notwithstanding that section if this is in the interests of achieving a balanced composition of the Council of State, if a vacancy exists, and provided the resulting number of members is no higher than it was before the vacancy became available.
6. Extraordinary state councillors appointed at the time this Act enters into force are charged with the same task or tasks with which they were charged on the day before this Act entered into force. Subsections 3 and 4 apply mutatis mutandis.