Landsverordening Administratieve rechtspraak

Transcription

1 Landsverordening Administratieve rechtspraak LAR-procedures in practice CHAMBER OF COMMERCE AND INDUSTRY ARUBA May 29, 2012 mr. M.G.A. Baiz

2 Introduction Procedures Objection Administrative Appeal Higher Administrative Appeal Administrative Injunction Request to comply with judgment

3 Objection When to object? Negative decision (denial) Fictitious negative decision (fictitious denial) Positive decision, but not totally in agreement with conditions of the decision Who can object: Interested party: directly affected in its interests (for example: applicant for a permit) Third-party: indirectly affected (for example: neighbor of a restaurant with a gas installation)

4 Objection What can be objected against: Written decision of a government authority aimed at a legal consequence The decision must be received on paper; verbal decisions cannot be objected against according to the LAR Government authority: A Minister (must be competent to take a decision on the respective matter) A government agency (competency requirement applies the same) for example: DIMAS, DOW Semi-government institutions: Central Bank, AZV, Kamer van Koophandel

5 Objection Aimed at a legal consequence The decision must contain a legal consequence for the interested party; for example denial of a permit application An information letter cannot be objected against; for example containing a notification that certain documents are required for the further handling of an application

6 Objection Objection procedure Within 6 weeks after date of the decision, request a reconsideration of the decision at the same government authority by whom the decision was taken; In case the decision is received after the 6 weeks of the objection period, as soon as reasonably expected if can be proven that the decision has been received after the 6 weeks: in practice: reasonable time= 2 weeks Within 8 weeks in case of a fictitious denial; Fictitious denial: in case after 12 weeks after the application has been submitted, no decision has been taken

7 Objection Objection Procedure (continued) Competent authority sends objection to Objection Advice Committee; Objection Advice Committee invites the interested party and the authority for a hearing; both parties can further explain their points of views and debate on the matter; Based on the hearing the Committee will advice the competent authority Competent authority will take a new decision based on advice of Committee: non-admissible/ rejected/ grounded/ against advice Committee

8 Administrative Appeal When Administrative Appeal? Within 6 weeks after date of new decision taken based on the objection; Within 8 weeks if 12 weeks have passed after submittal of objection and no decision was taken by the competent authority In case an objection has been declared nonadmissible or rejected or found grounded but not in agreement with the conditions of new decision

9 Administrative Appeal Who is entitled to Administrative Appeal? Interested party: directly affected in its interests (for example: the person that submitted the objection) Third-party: indirectly affected (for example: neighbor of a restaurant with a gas installation)

10 Administrative Appeal Administrative Appeal Procedure Appeal to be submitted at Court of First Instance; Court sends Appeal to the competent authority Competent authority may send a reaction within 6 weeks after receipt from Court. Court sets a date for a hearing in which the Interested party and the competent authority can explain their points of view and debate on the matter. If after the hearing the Court finds that it needs more information it will reopen the case and request parties to provide the required information. Within 4 weeks after Court hearing, Court will take a decision on the Appeal Decision of the Court can be: non-admission/ rejection/ appeal ungrounded/ Appeal grounded but decision stays in place/ Appeal grounded and order to take a new decision/ take a decision itself

11 Higher Administrative Appeal Higher Administrative Appeal Possible since 2003 (LAR was introduced in 1998) Common Court of Justice of Aruba, Curacao, Sint Maarten and Bonaire, Sint Eustatius and Saba= Higher Appeal Court Hearings are held every 6 months Higher Appeal Court consists of one judge of the Common Court and two judges of the Dutch Raad van State

12 Higher Administrative Appeal When Higher Administrative Appeal? After (final) judgment of Court of First Instance Higher Appeal within 6 weeks after date of judgment; No higher appeal possible against fictitious decisions;

13 Higher Administrative Appeal Who is entitled to Higher Administrative Appeal? Anyone who doesn t agree with the judgment of the Court of First Instance, but has to make plausible that it has any direct interest or is directly affected by the judgment: The party that submitted the Appeal; The competent government authority; Third-party (directly affected!)

14 Higher Administrative Appeal Higher Administrative Appeal Procedure Higher Administrative Appeal to be submitted at Common Court (local Court house administration) Common Court sends Higher Appeal to all involved parties; All involved parties may react on Higher Appeal; If any reactions of the parties involved arte submitted, these will be sent to all the other involved parties; Common Court sets a date for a hearing in which the Interested party and the competent authority can explain their points of view and debate on the matter (same procedure applies as in the Appeal procedure) 8 weeks after the date of the hearing the Common Court will take a decision

15 Higher Administrative Appeal Higher Appeal Procedure (continued) Common Court s decision can be: Non-admission; Rejection of Higher Appeal and confirmation judgment Court of First Instance; Grounded Higher Appeal reversal judgment of Court of First Instance, but original decision of the competent authority stays unaffected or Annulment of the original decision of competent authority and order to take a new decision within a certain period, taking into account considerations of the Common Court

16 Additional administrative Administrative injunction procedures When an objection/ appeal/ higher appeal has been submitted against a decision or fictitious decision (denial) Objection/ Appeal/ Court Judgment do not suspend the effects of the decision In case the directly affected party suffers disproportionate disadvantage compared to the execution of the decision Request Court to suspend the effects of the decision and adoption of an interim injunction pending a decision on the objection / appeal The effects/ execution of a decision will be suspended if the Courts considers it probable that there is little possibility that the contested decision will remain unaffected and the interest of the requesting party prevails over the interest of the competent authority to enforce the contested decision.

17 Extraordinary procedures Request to comply with judgment When Court of First Instance/Common Court issued an order to take a new decision within a certain period and with clear considerations of the respective Court: failure to comply within the given time: request to still comply with the ruling, eventually sanctioned with a fine and possibly a damage claim! Same kind of procedure as Administrative Injunction!