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The Principle of Properness
case deserves some attention. This case before the ECtHR led to an important and impressive reform in the Dutch administrative courts, including the strong development of a general high administrative court in combination with already existing specific high administrative courts. These specific courts were the Central Appeals Tribunal on legal areas pertaining to social security and the civil service (based in Utrecht) and the Trade and Industry Appeals Tribunal in the area of socio-economic administrative law, based in The Hague. The high general administrative court is the Administrative Jurisdiction Division of the Council of State. The introduction of the Administrative Jurisdiction Division of the Council of State as a general higher administrative court in particular has prompted the strong development of the principles of properness.5 There are several reasons for this, depending on the function of the institutions involved. The main reason is that there was, for a time, a too restrictive interpretation of formal legality and, therefore, there was a need for unwritten principles. There was also a need for a broader judicial control, more than a simple legality check. In a situation where the controlling mechanisms of parliament are more focused on general aspects, there is a need for more intensive control by the judiciary for individual cases. At the same time, there are restrictions on the court because of its constitutional role. We also see that national administrations increasingly developed policy rules where principles of good governance are stipulated. But most of the unwritten principles of good governance have been codified in a general administrative law act or in a specific act which deals with specific points.
2. The Concept of Properness General administrative law is often about decision-making and about legal certainty for citizens and organizations. Decision-making by the administration implies the application of general rules to specific cases. When regulations are unclear because of vague language of structural matters, the administration increasingly gains discretionary power. Choices with regard to discretionary power in specific cases are made by the application of relevant regulations and by identifying and balancing the interests concerned. In many cases, the administration acts as an intermediary between the conflicting interests of different parties. If an administrative order is correctly made, at least procedurally, the parties involved often accept the outcome of the case more easily. The administration has to act in accordance with the law. A party who disapproves of a ruling, however, may appeal to a court. If the court is competent in the reported matter, it can by exception consider the (legal) act at hand. As the law is unclear in many cases, it is often almost unpredictable whether or not a ruling is lawful. This unpredictability of the law is reinforced by conferring and delegating discretionary powers to lower administrative bodies and agencies. Furthermore, many kinds of regulations change rapidly. From the point of view of the classic continental version of rule of law, legal certainty is sometimes undermined by interwoven and somewhat unpredictable societal, political, and judicial processes. In the administrative law of many countries, the general principles of proper administration were developed as tools to cope with these unavoidable legal uncertainties. These principles contributed to the development of procedural legal certainty, which replaced the unreachable ideal of substantive legal certainty, the continental version 5
Addink 1999, ch 1.
