Transitional Law of the Penalty and Appeal for Late Decisions Act
In our newsletter of October 2009 we have given a broad outline
of the Penalty and Appeal for Late Decisions Act (the "Penalty
and Appeal Act"). This Act entered into force on 1 October
2009. As we have recently noticed that the transitional law of the
Act raises questions in practice, this newsletter article is fully
devoted to this transitional law.
What Is Regulated by the Penalty and Appeal Act?
The main parts of the Penalty and Appeal Act are
the following:
- If an administrative body fails to decide on an application
in time, it forfeits penalties to the applicant. The penalty
shall be payable starting from two weeks after the applicant
gave the administrative authority notice of default (Section
4:17(3) of the General Administrative Law Act (Algemene wet
bestuursrecht, "Awb"). A notice of default may
be sent as from the moment when the time limit for decisions
has expired.
- The applicant may appeal directly to the administrative
court against the failure to take a decision. The appeal may be
lodged two weeks after the applicant has given the
administrative authority notice of default (Section 6:12(2)
under b of the Awb). Here too the notice of default can be sent
as of the moment when the time limit for decisions has
expired.
The Provision of Transitional Law
The Penalty and Appeal Act contains the following
transitional law provision:
Article III
1. Failure to decide in due time on an application or on a notice
of objection or appeal that has been submitted before the time of
entry into force of Section 4.1.3.2 of the Awb shall remain subject
to the law that applied before this time of entry into force.
2. A notice of objection or appeal against the failure to decide in
due time that has been submitted before the time of entry into
force of Division 8.2.4a shall remain subject to the law that
applied before this time of entry into force.
The question we will discuss here is how this provision should be
interpreted.
Transitional Law on Forfeiture of Penalties
Pursuant to Section III.1, an application that was submitted before
1 October 2009 (the time when the Act entered into force) will be
treated according to the law that applied until that date. The same
is true for a notice of objection that was submitted before that
time. The consequence of this provision is that a late decision on
such an application or notice of objection cannot lead to a
forfeiture of penalties.
The Penalty and Appeal Act extends a number of time limits for
decisions (see inter alia the amended Section 7:10 of the
Awb). However, pursuant to Section III.1, the former time limits
for decisions apply to applications dating back to the time before
1 October 2009.
If a decision was taken after 1 October 2009 on an application that
had been submitted before the entry into force of the Act, the new
Act does apply in full to a notice of objection against that
decision. Therefore the administrative authority, after having been
given notice of default, will forfeit penalties if it fails to
decide on that notice of objection in due time.
Transitional Law Remedies Against Late Decisions
Pursuant to Section III.2, a notice of objection or appeal against
failure to decide on an application in due time shall also be dealt
with according to the former law if this notice of objection or
appeal was submitted before 1 October 2009. A notice of objection
against failure to decide in due time that was submitted before
that date will therefore be processed as usual as a notice of
objection. If the person who challenges the failure to decide
wishes to enforce a short-term decision through a notice of
objection, he may apply to the court for preliminary relief in
preliminary relief proceedings. As described above, a notice of
appeal against failure to decide in due time that was submitted
before 1 October 2009, will also be processed according to the
former rules. This means that it is not automatically dealt with in
simplified proceedings as provided in Section 8:54 of the Awb, as
is the case under the new regulation (see for this part of the
Penalty and Appeal Act: Sections 8:55b through 8:55f of the Awb).
In that case too, it is possible to enforce expedition of the
decision-making process before the court in preliminary relief
proceedings.
Section III.2 only relates to notices of objection and appeal that
have been submitted before 1 October 2009 against the failure to
decide in due time. After 1 October 2009, it is only possible to
challenge the failure to decide in due time according to the new
regulation. In that case, the administrative authority must be
given notice of default (see Section 6:12 (2) under b of the Awb)
and starting from two weeks after that time, it is possible to
bring an appeal directly to the court. This appeal will in
principle be dealt with by the court in simplified proceedings (see
Sections 8:55b through 8:55f of the Awb). The same applies if the
late decision on an application that was submitted before 1 October
2009 is challenged after 1 October 2009. See about this: the
decision of the Administrative Law Judicial Division of the Council
of State of 15 January 2010, procedural number 200908042/3/R2.
Summary
The above can be summarized in three lines:
- the failure to decide in due time on an application that
was submitted before 1 October 2009 cannot lead to forfeiture
of penalties, because the penalties arrangement does not apply
to it according to transitional law;
- a notice of appeal or objection that was submitted before 1
October 2009 against the failure to decide in due time on an
application will be processed according to the "old"
rules of procedure;
- as of 1 October 2009 it is only possible to challenge a
failure to decide in due time on an application by means of a
notice of default followed by a direct appeal to the
administrative court, also if the application or the notice of
objection that was not decided on in due time had been
submitted before 1 October 2009.