Only test the law against proportionality if the legislator has not considered everything


At the request of the chairman of the administrative jurisdiction department, Snijders issued a conclusion in two lawsuits to apply for childcare benefit too late. Although both parents meet all material requirements to receive childcare benefit for the entire period, according to the Tax Authorities / Supplementary Benefits, they are only entitled to partial reimbursement due to their late application. The parents believe that the strict application of the law is to their disadvantage. They therefore ask the Administrative Law Department to deviate from the Care Act in their case.

Conclusion from the Advocate General’s Council of State

The Advocate General states in his conclusion that laws, and thus also the Child Care Act, should not normally be tried in relation to the principle of proportionality. This follows from the prohibition on assessment in section 120 of the Constitution. However, this does not apply if the legislator has failed to take certain factors into account in its assessment. The question is therefore whether the legislature has taken these specific circumstances into account. If the legislature has not thought about this, it is still possible to test the law against legal principles and unwritten law. It will be against the body (against the law) called scrutiny. If the legislature has considered the specific case, contra body testing is not allowed. In that case, a judicial review of the law would interfere with the legislature’s assessment. Then the test ban applies.

Application for the specific childcare benefit cases

The public prosecutor writes in his conclusion that the parents were not aware that they should apply for childcare within a relatively short period of time. In one of the cases, a parent has had large expenses for childcare in the expectation that it would be covered by the childcare allowance. According to the Public Prosecutor, it can be deduced from the legislative history of the Care Act that the legislator was not sufficiently aware that these cases would inevitably arise and that large sums could be involved. In his view, therefore, the legislature has not dealt with these cases. Therefore, in those cases, the court can test this provision of the Care Act against the principle of proportionality.

Four conclusions on the principle of proportionality

This conclusion is part of a series of four conclusions on testing in relation to the principle of proportionality. In the conclusion of Wattel and Widdershoven of July 2021, the administrative court’s review of decisions in relation to the principle of proportionality was discussed in a general sense. This included assessment of laws in the formal sensefrom lower lawfrom policies and from decisions on the agenda. In the judgment of 2. February 2022, the Administrative Jurisdiction Department formulated a general framework for review decisions to the principle of proportionality. In his Opinion of 16 February 2022, Member of the Council of State Advocate General Wattel discussed the lower law to the principle of proportionality. On 22 February 2022, requests for an opinion to the members of the Council of State, Advocate General Widdershoven and Snijders policies respectively laws in the formal sense to the principle of proportionality. Widdershoven’s conclusion was also published today.

What is a conclusion and what is its use?

One conclusion is legal advice to the administrative jurisdiction department and contributes to legal development. In a statement, a Minister of State may place a legal issue in a broader social and legal context, assess the status of case law and make recommendations to nuance or adjust existing case law. The administrative jurisdiction department is not bound by the advice, but takes this seriously in its assessment. The administrative court’s opportunity to request a conclusion has been included in the general administrative law law since 2013 and has since been used on an ongoing basis by the Administrative Law Department. An overview of the conclusions that have since been issued can be found on the Government’s website.

Further course of the procedure

The Administrative Jurisdiction dealt with both cases under case numbers 202100115/1 and 202006816/1 on 24 November 2021. The parents and the tax and customs administration / services will now only have the opportunity to respond to the Advocate General’s opinion. The Administrative Jurisdiction Department will then decide whether it considers another hearing necessary or whether it will make a direct decision in both cases.

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