Specification of the Concept
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of the rule of law. Thus, the principles of proper administration are generally about decision-making, administrative discretionary powers, and judicial control. That includes the relationship between the courts and the administration. In this and some of the following chapters, the situation in the Netherlands is taken as an illustration. The General Administrative Law Act (GALA) is in fact an elaboration of the general principles of proper administration. It is, however, more than a codification only, it is also an instrumental statute that regulates the relations between administrative authorities and citizens. On the other hand, it does not codify all the principles of proper administration and therefore there are written and unwritten principles of properness. The written and unwritten principles of proper administration can be divided into two groups: the formal and the substantial (or material). This distinction partly clarifies the differences between the several principles of proper administration. The substantial principles are: legal certainty, equality, and proportionality. The formal ones are carefulness and motivation. Two remarks have to be made in relation to this distinction. First, some principles have both formal and substantial aspects. That is actually the case with legal certainty, carefulness, and motivation. Second, the annulment by the judge based on a formal or a substantial principle is relevant. After an annulment based on a formal principle, substantially speaking, the same decision can be reached once again by the administration. Annulment based on a substantial principle means that a completely new decision must be reached by the administration. When we look at the functions of the principles of proper administration, we can distinguish two different functions in the course of public decision-making and in judicial review. First, there are rules of conduct for administrative bodies and other legal entities. Because most principles are linked to a certain stage in the decision-making process, it is quite possible to apply them from the start. Of course, the same principles are to be applied in the objection procedure. Many of these principles have been codified in GALA. Its chapters and paragraphs concern dealings between individuals and administrative authorities, general provisions on orders, and the application and publication and communication. For instance, articles 4:7 and 4:8 indicate that before a burdensome order can be enacted, the applicant and the aggrieved must be invited to give their views on the matter; this is directly related to the principle of carefulness. Second, the principles of proper administration are tools for judicial review. There are principles relating more to the procedure of decision-making and principles relating more to the content of the administrative order. For instance, the principle of justification and the principle of prohibition of arbitrariness; judges can often choose between different kinds of principles.
3. Specification of the Concept The following eight sub-principles of properness have been distinguished: (1) the prohibition on misuse of power; (2) the prohibition on arbitrariness; (3) legal certainty; (4) legitimate expectation; (5) equality; (6) proportionality; (7) carefulness; and (8) reasoning. These sub-principles are explained in turn.
(a) The prohibition on misuse of power This is also called ‘la défense de détournement de pouvoir’. This principle has been codified in the Netherlands GALA. We read in article 3:3 that ‘An administrative authority
