Ambtshalve toetsing: gerechtvaardigde uitzondering of uitgeholde regel? Een rechtsgeleerd onderzoek naar de legitimering van het verbod van ambtshalve toetsing door de bestuursrechter van besluiten aan materieel recht

Dutch administrative courts are, on the whole, not allowed to perform an ex officio judicial review of administrative decisions. The binding nature of nearly all rules of substantive administrative law and the specific characteristics of the administrative decisions involved, beg the question how and to what extent this prohibition can be justified. According to recent legal history a (more) reciprocal way of establishing and maintaining administrative relationships between citizens and administrative bodies provides the leading justification. The fact remains, however, that legally speaking administrative decisions are still taken unitarily by administrative organs. Furthermore, a more reciprocal approach is obstructed by the principle of legality, which determines the binding nature of administrative law, nor does reciprocity fit with the principles of proper administration. Consequently, reciprocity is not a plausible justification. The same may be said about an additional justification from legal history, of possible infringement by ex officio judgements of legal certainty of parties. Since ex officio judicial review barely intrudes upon obtained legal positions of parties, this argument cannot be considered as a plausible justification either. Furthermore, principles of procedural law (such as respect of the rights of defense, procedure within a reasonable time and impartiality of administrative judges) do not justify a prohibition of ex officio judicial. The evaluation of the arguments for the current prohibition of ex officio judicial review, is supplemented with a historical analysis of early doctrinal thoughts on the nature of administrative procedure and a comparative analysis of the nature of the law of civil procedure, given the overridingly reciprocal nature of civil law relationships. On the basis of the evaluation of the most important pro-prohibition arguments in legal literature, and the historical and comparative analysis, the overall conclusion must be that there’s no proper legal justification for the present strong constraints on ex officio reviewing by Dutch administrative courts.