End to the Litigating Foundation?
In a decision of 28 May 2008, the Administrative Law Judicial
Division of the Council of State (Afdeling bestuursrechtspraak
van de Raad van State, "AbRvS") has ruled that a
legal entity of which the actual activities consist merely of
litigation does not meet the requirements set in the General
Administrative Law Act (Algemene wet bestuursrecht,
"Awb"). At the request of the permit holder, who was
assisted by our firm, the objection raised by the Stichting
Monumentenbehoud Nederland (Foundation for the Preservation of
Historic Buildings) from Amsterdam against a granted demolition
permit was (partly) dismissed for this reason.
The decision of 28 May 2008 has important consequences for the
admissibility of legal entities that are merely established for the
purpose of engaging in administrative law litigation.
With the decision of 28 May 2008, the AbRvS has meanwhile
continued and clarified the approach it has taken. The end of the
litigating foundation seems to be in sight.
Statutory
Requirements on Admissibility
In administrative law, the requirement for an objection or
appeal to be admissible is that the interest of the party lodging
the objection or appeal is directly involved with the decision
against which it was directed.
In a dispute about a building scheme, for example, it is
important that an individual objector lives at such a distance from
the planned development that the granting of a building permit
would affect his interests.
Legal entities that are established in pursuit of a specific
goal, like environmental associations, can be regarded as
interested parties if - in brief - they stand up for general and
collective interests, which they defend in accordance with the
objectives as set out in their articles or association and
appearing from their actual activities.
Admissibility of
'Litigating Foundations'
In the decision of 1 October 2008, the AbRvS ruled as
follows about the admissibility of the Stichting Openbare
Ruimte (Public Space Foundation) from Amsterdam.
The objective in the articles of association of the Stichting
Openbare Ruimte is - in summary - to achieve a "sustainable
living environment for all living creatures (...)", which
means more concretely "the pursuit of good spatial planning
for humans, animals and plants (...)". The AbRvS considered
this objective to be too extensive. For this reason alone, the
Stichting Openbare Ruimte is not an interested party.
The actual activities of the Stichting Openbare Ruimte
consist of making requests for the enforcement of regulations and
of giving opinions on draft decisions. According to the AbRvS,
these activities cannot be regarded as 'actual activities'
demonstrating a defense of general and collective interests pursued
by the Stichting Openbare Ruimte.
These considerations are in line with the decision of 28 May
2008 about the inadmissibility of the Stichting
Monumentenbehoud Nederland. In this case the AbRvS takes one
step further by expressing the opinion that it is not supposed to
happen that by establishing a foundation, anyone (including
non-interested parties) may engage in administrative law
litigation. The AbRvS considers that another, broader,
interpretation of the law would come down to the actio
popularis, in which the right to appeal is open to anyone.
This is an important, and in my opinion justified, opinion that
prevents the possibility of circumventing the limitation that was
set on the right to appeal by the abolishment of the actio
popularis since 1 July 2005. A well-known example of this
'former' actio popularis was the zoning plan
procedure, which allowed an inhabitant of Amsterdam to appeal
against the approval of a zoning plan for the city of Maastricht,
for example, although this inhabitant was not affected by that
zoning plan in any way.
In its decision of 15 October 2008 about the admissibility of
the Stichting Omgevingsrecht from Almelo, the AbRvS has
continued this line and made clear that also making investigations
for purposes of potential administrative law proceedings, and
providing tips and information about legal steps to take, do not go
beyond the 'pure contesting at law'. In its decision of 22
October 2008, the AbRvS gave a similar opinion on the Stichting
VMDLT from Enschede.
Consequences for Practice
Does this mean that the end of the 'litigating
foundation' is in sight? That depends on what must be
understood by a 'litigating foundation'. It is clear in any
case that the highest administrative court sees no place for a
legal entity that was established solely in order to be able to
engage in administrative law litigation.
Following up on a judgment of the Supreme Court, the AbRvS did
leave space for admissibility of a legal entity having the purpose
of joining individually affected interests. Such joining may be
favorable for reasons of process
economy.
Recommendation
In administrative law proceedings it is important not to take
the admissibility of a legal entity defending general and
collective interests as a fact, but to cast a critical eye on the
objective set out in the articles of association and the actual
activities undertaken to pursue this objective. Although the courts
have to judge admissibility ex officio, it remains wise to
raise this point in legal proceedings, if necessary.