STANDING TO RAISE CONSTITUTIONAL ISSUES IN THE NETHERLANDS Tom Z IVB3 Introduction The present report deals with the stand ing rules applicable in the Netherlands. So as to keep the report within mana geable proportions no attention will be paid to the actio popularis prevalent in planning and environmental law, as it is the exception to the rule that the applicant must have a stake in the outcome to succeed. In order to make the Dutch standing rules more accessible, US term inology has been followed wherever possible Section 2 will deal with some prelim inary constitutional questions necessary to put the rest of the report into perspective. Section 3 will discuss the sources of and the rationale for standing. Section 4 will be devoted to the standing rules applicable to indiv iduals, organisations and political entities respectively. Section 5 will consider the separate issues of mootness and ripeness. Section 6 contains some concluding remarks Constitutional preliminaries Before going into the details of Dutch law on standing, three constitutional points should be made at the outset First of all. under art icle 120 of the constitution courts in the Netherlands are not allowed to review the constitutiona lity of Acts of Parliament Despite courts not being permitted to look into the constitutiona lity of Acts of Parliament, no such im pediments exists regarding secondary legislation, such as orders in council and ministerial regulations. Additionally, courts may review the compatibility of any national rule with self-executing provisions of treaties and decisions of intemational organisations due to Article 94 of the Constitution. 3 This article stipulates that self-executing provisions in treaties and decisions taken by intemational organisations which bind the Netherlands may set aside statutory regulations, i.e. all instruments conta ining rules, including Acts of Parliament and the Constitution itself. The power conferred on the judiciary by Article 94 has become an importa nt tool which compensates for the absence of constitutional review of Acts of Parliament For the purpose of the present report, the phrase to raise constitutional issues will therefore be interpreted as covering those cases in which the court is invited review the validity of legislation, either under the Constitution( secondary legislation) or under self-executing provisions of intemational law(both primary and secondary legislation) Law Faculty. Utrecht University the Netherlands. I would like to thank chloe Flatley and Judith Van Haersma Buma for their valuable ass istance The Artick reads as follows: The constitutionality of Acts of Parliament and treaties shall not This Article reads as follows: Statutory regulations in force withn the Kingdom shall not be applicable if such application s in conflict with prov is ions of treaties that are binding on all persons or of resolutions by
STANDING TO RAISE CONSTITUTIONAL ISSUES IN THE NETHERLANDS Tom Zwart* IV B 3 1 Introduction The present report deals with the standing rules applicable in the Netherlands.1 So as to keep the report within manageable proportions no attention will be paid to the actio popularis prevalent in planning and environmental law, as it is the exception to the rule that the applicant must have a stake in the outcome to succeed. In order to make the Dutch standing rules more accessible, US terminology has been followed wherever possible. Section 2 will deal with some preliminary constitutional questions necessary to put the rest of the report into perspective. Section 3 will discuss the sources of and the rationale for standing. Section 4 will be devoted to the standing rules applicable to individuals, organisations and political entities respectively. Section 5 will consider the separate issues of mootness and ripeness. Section 6 contains some concluding remarks. 2 Constitutional preliminaries Before going into the details of Dutch law on standing, three constitutional points should be made at the outset. First of all, under Article 120 of the Constitution, courts in the Netherlands are not allowed to review the constitutionality of Acts of Parliament.2 Despite courts not being permitted to look into the constitutionality of Acts of Parliament, no such impediments exists regarding secondary legislation, such as orders in council and ministerial regulations. Additionally, courts may review the compatibility of any national rule with self-executing provisions of treaties and decisions of international organisations due to Article 94 of the Constitution.3 This article stipulates that self-executing provisions in treaties and decisions taken by international organisations which bind the Netherlands may set aside statutory regulations, i.e. all instruments containing rules, including Acts of Parliament and the Constitution itself. The power conferred on the judiciary by Article 94 has become an importa nt tool which compensates for the absence of constitutional review of Acts of Parliament. For the purpose of the present report, the phrase to raise constitutional issues will therefore be interpreted as covering those cases in which the court is invited to review the validity of legislation, either under the Constitution (secondary legislation) or under self-executing provisions of international law (both primary and secondary legislation). * Law Faculty, Utrecht University, the Netherlands. 1. I would like to thank Chloé Flatley and Judith Van Haersma Buma for their valuable assistance. 2. The Article reads as follows: The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts. 3. This Article reads as follows: Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions
ZWART Secondly, the Netherands has a dual court system, consisting of ordinary and adm inistrative courts which apply private law and administrative law respectively.4 Constitutional issues may arise in both courts. According to Article 112, section l of the Constitution, the adjudication of disputes involving rights under civil law and debts shall be the responsibility of the regular judiciary. According to Article 113, section 1, the same jurisdiction applies to the trial of offences. Under section 2 of Article 112, responsibility for the adjud ication of disputes which do not arise from matters of private law, i.e. adm inistrative law type disputes, may be granted by Act of Parliament to either the regular judiciary or courts that do not fomm part of the dicary. Such jurisdiction has been conferred by Act of Parliament amongst others to the administrative divisions of the courts of first instance, the afdeling Bestuursrechtspraak(Administrative Judicary Division)of the Council of State, the Centrale Raad van Beroep( Central Appeal Board)and the College van Bermep woor het Bedrijfsleven(Industrial Appeals Board) According to Article 8: 1, section 1 of the Algemene wet bestuursrecht( General Adm inistrative Law Act or GALA), orders of administrative authorities may be contested before adm inistrative div isions of the courts of first instance or on appea before the Afdeling Bestuursrechtspraak and the Centrale Raad van Beroep. An order of an adm inistrative a uthority has been defined in Article 1: 3, section 1, ofthe said Act as a written decision intending to ca use legal effect under public law challenging the order, the applicant may question the constitutional validity of Alternatively, the constitutional propriety of legislation may also be tested directly. Under Article 112, section 1 of the Constitution, a person aggrieved by an adm inistrative act may bring a tort claim before an ordinary court. In interpreting Article 112, section 1, the Supreme Court ruled in Noordwijkerhout v. Guldenmond that the judiciary is com petent to try cases in which an adm inistra tive authority acts the defendant, as long as the plaintiff can va idly claim to be the victim of a tort committed by that authority. Its competence will be determined by the claim put forward and not by the nature of the relationship between the parties. Although the judicary has full jurisdiction in this kind of cases, it will dismiss a claim as inadm issible if it concerns an order which can be brought before one of the adm inistrative tribunals mentioned above. In practice plaintiffs tend to rely on tort proceedings only in cases relating to measures to which GALa does not apply, such as Acts of Parliament?or orders which have been explicitly excluded from the risdiction of the adm inistrative courts, secondary legislation being among them By seeking private law remedies like an injunction, the applicant may prevent the legislation from entering into effect or render it inoperative. This kind of action See T. Zwart& F Goudappel, Judicial rev iew exercised by ordnary courts and administrative 45678 courts in the Netherlands: a comparison, 12 European Review of Public Law(2000), pp. 665-680 Supreme Court, 31 December 1915, Nederlandse Jurisprudentie( Dutch Law Reports)1916,p This approach is generally being referred to as the objectum litis-concept Cf. Article 1: 1(2)(a)GALA. Cf. Article 8: 2(a)GALA
ZWART 2 Secondly, the Netherlands has a dual court system, consisting of ordinary and administrative courts which apply private law and administrative law respectively.4 Constitutional issues may arise in both courts. According to Article 112, section 1 of the Constitution, the adjudication of disputes involving rights under civil law and debts shall be the responsibility of the regular judiciary. According to Article 113, section 1, the same jurisdiction applies to the trial of offences. Under section 2 of Article 112, responsibility for the adjudication of disputes which do not arise from matters of private law, i.e. administrative law type disputes, may be granted by Act of Parliament to either the regular judiciary or courts that do not form part of the judiciary. Such jurisdiction has been conferred by Act of Parliament amongst others to the administrative divisions of the courts of first instance, the Afdeling Bestuursrechtspraak (Administrative Judiciary Division) of the Council of State, the Centrale Raad van Beroep (Central Appeal Board) and the College van Beroep voor het Bedrijfsleven (Industrial Appeals Board). According to Article 8:1, section 1 of the Algemene wet bestuursrecht (General Administrative Law Act or GALA), orders of administrative authorities may be contested before administrative divisions of the courts of first instance or on appeal before the Afdeling Bestuursrechtspraak and the Centrale Raad van Beroep. An order of an administrative authority has been defined in Article 1:3, section 1, of the said Act as a written decision intending to cause lega l effect under public law. In challenging the order, the applicant may question the constitutional validity of the underlying legislation. Alternatively, the constitutional propriety of legislation may also be tested directly. Under Article 112, section 1 of the Constitution, a person aggrieved by an administrative act may bring a tort claim before an ordinary court. In interpreting Article 112, section 1, the Supreme Court ruled in Noordwijkerhout v. Guldenmond that the judiciary is competent to try cases in which an administra tive authority acts as the defendant, as long as the plaintiff can validly claim to be the victim of a tort committed by that authority.5 Its competence will be determined by the claim put forward and not by the nature of the relationship between the parties.6 Although the judiciary has full jurisdiction in this kind of cases, it will dismiss a claim as inadmissible if it concerns an order which can be brought before one of the administrative tribunals mentioned above. In practice plaintiffs tend to rely on tort proceedings only in cases relating to measures to which GALA does not apply, such as Acts of Parliament7 or orders which have been explicitly excluded from the jurisdiction of the administrative courts, secondary legislation being among them.8 By seeking private law remedies like an injunction, the applicant may prevent the legislation from entering into effect or render it inoperative. This kind of action is 4. See T. Zwart & F. Goudappel, Judicial review exercised by ordinary courts and administrative courts in the Netherlands: a comparison, 12 European Review of Public Law (2000), pp. 665-680. 5. Supreme Court, 31 December 1915, Nederlandse Jurisprudentie (Dutch Law Reports) 1916, p. 407. 6. This approach is generally being referred to as the objectum litis-concept. 7. Cf. Article 1:1 (2) (a) GALA. 8. Cf. Article 8:2 (a) GALA
STANDING TO RAISE CONSTITUTIONAL ISSUES often entertained by public interest groups. This report will therefore deal both with standing in administrative courts under GALA and with the standing of public interest groups under Dutch tort kw Finally, contrary to the situation in Ireland? and Canada, 0I Dutch courts app the same standing rules in constitutional and non-constitutional cases. The present report therefore will deal with standing in general, making no distinction between these two ty pes of cases 3 The sources of and rationale for standing rules The man rules relating to standing have been bid down in legislation. Under Article I GALA, an interested party may appeal to the court aga instan order. Article 1: 2(1) gal a describes an interested party as a person whose interest is directly affected by an order. These provisions closely resemble the standing rules laid down in the predecessor of GALA, the Judicial Review of Administrative Decisions Act According to Article 3: 305a of the Civil Code, an association or foundation with full legal capacity is entitled to enterta in an action for the purpose of protecting interests of other persons, inasmuch as it promotes these interests accord ing to its articles of However, courts have plyed a vital part in developing the rules on standing both in the area of adm inistrative and private a w. One may even claim without exaggeration that the right of public interests groups to initiate court proceedings in private law is the creation of the judiciary rather than the legislature. In add ition, academ ic commentary has also left its mark. In his very influental thesis entitled Kringen van belanghebbenden (Circles of interested parties), Peter van Buuren not only prov ided an illum inating analysis of the existing standing rules, but also set the tone for the development of those rules during the atter part of the twentieth century Unlike in the US, 12 in the Netherlands there has not been any discussion on the rationale for standing rules. Stand ing requirements are considered to be ofa technical nature and are not usually linked to the concept of separation of powers. Thi discourages debate on the constitutional and political role of the judiciary 13which technical approach is probably motivated by the Dutch civil law tradition, which See Cahill v Sutton[1980JIR 269, Cotty v. An Taoiseach [1987]1.R 713, lamnid Eireann v. Ireland [1996]3 I.R. 321 and James Casey, Constitutional law in Ireland, third ed iton, Dublin 2000pp358364 10. See Thorson v. Attomey General of Canada [1975] I S.C.r 138, Noua Scotia Board of Censors v. MeNeill[976 2S. Cr 265, MinisterofJhustice of Canada. Borowski[1981]2S.CR 575 and Peter Hogg, Constitutional law of Canada, fourth edition, Scarborough 1997, pp 1368-1371. Deventer. 1978 12 See in particular Antonn Scala, The doctrine of standing as an essential element of the ation of powers, 17Suffolk L Rev. (1983) See Tom Zwart, The evolution of the roleof the judge in the Netherlands, 1 3 European Revew of Public Law(2001)(forthcoming)
STANDING TO RAISE CONSTITUTIONAL ISSUES 3 often entertained by public interest groups. This report will therefore deal both with standing in administrative courts under GALA and with the standing of public interest groups under Dutch tort law. Finally, contrary to the situation in Ireland9 and Canada,10 Dutch courts apply the same standing rules in constitutiona l and non-constitutional cases. The present report therefore will deal with standing in general, making no distinction between these two types of cases. 3 The sources of and rationale for standing rules The main rules relating to standing have been laid down in legislation. Under Article 8:1 GALA, an interested party may appeal to the court against an order. Article 1:2 (1) GALA describes an interested party as a person whose interest is directly affected by an order. These provisions closely resemble the standing rules laid down in the predecessor of GALA, the Judicial Review of Administrative Decisions Act. According to Article 3:305a of the Civil Code, an association or foundation with full legal capacity is entitled to entertain an action for the purpose of protecting interests of other persons, inasmuch as it promotes these interests according to its articles of association. However, courts have played a vital part in developing the rules on standing both in the area of administrative and private la w. One may even claim without exaggeration that the right of public interests groups to initiate court proceedings in private law is the creation of the judiciary rather than the legislature. In addition, academic commentary has also left its mark. In his very influential thesis entitled Kringen van belanghebbenden (Circles of interested parties), Peter van Buuren not only provided an illuminating analysis of the existing standing rules, but also set the tone for the development of those rules during the latter part of the twentieth century.11 Unlike in the US,12 in the Netherlands there has not been any discussion on the rationale for standing rules. Standing requirements are considered to be of a technical nature and are not usually linked to the concept of separation of powers. This technical approach is probably motivated by the Dutch civil law tradition, which discourages debate on the constitutional and political role of the judicia ry.13 9. See Cahill v. Sutton [1980] I.R. 269, Crotty v. An Taoiseach [1987] I.R. 713, Iarnród Éireann v. Ireland [1996] 3 I.R. 321 and James Casey, Constitutional law in Ireland, third edition, Dublin 2000, pp. 358-364. 10. See Thorson v. Attorney General of Canada [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeill [1976] 2 S.C.R. 265, Minister of Justice of Canada v. Borowski [1981] 2 S.C.R. 575 and Peter Hogg, Constitutional law of Canada, fourth edition, Scarborough 1997, pp. 1368-1371. 11. Deventer, 1978. 12. See in particular Antonin Scalia, The doctrine of standing as an essential element of the separation of powers, 17 Suffolk L.Rev. (1983) 881-889. 13. See Tom Zwart, The evolution of the role of the judge in the Netherlands, 13 European Review of Public Law (2001) (forthcoming)
ZWART The standing rules in practice 4.1 4. An applicant will only be considered to have standing if he is personally affected by the decision at issue. This would, for instance, be the case if the applicant lives or works in the vicinity of the site to which the decision applies. Thus, when an applicant challenged the pemission given by the states deputies 4 to a company t start a quarry, he was considered to have standing because he resided some 1000 metres from the proposed excavation site. The states deputies mainta ined that no direct interest of the applicant was involved, since his house was too far removed from the location The court found that the distance was not so great that it should be led out the excavation would have consequences for the applicant. It relied on evidence put forward by an expert which showed that the digging could cause damage to the applicant s property. I5 When an authority gave pem ission to a company to transfer polluted soil to another location, two employees work ing clos to the new site were also deemed to have standing. 6 Similarly, when the board of burgomaster and aldermen granted a pemit for the exploitation of a brothel, those working nearby were deemed to have standing 8 If the distance is considered too eat, the appeal will fail. This was exemplified when the states deputies gave permission for the construction of a road. The applicant was considered to lack standingsince he lived some 700 metres from the site In addition to distance, visibil ity is sometimes deemed to be important. When the board of burgomaster and aldermen gave pemission for the construction of a penitentary, the applicant s objection was that the prison would ham the peacefu character of the town. The court denied him standing because he lived 2000 metres from the building site and a nearby residential area would block his view of the build ing. 20 The case is also noteworthy for the fact that the court decided the building would not have such an impact as to affect the socal climate and the living 14. The executiveat the provincial level 15 Judicial Divsion of the Council of State, 4 November 1987, Adminstratiefrechtelij Beslissingen( Administrative Decisions Reports)1989, 135 Pres dentof the Judical Div ision of the Council of State, 24 November 1982, Admnistratief- rechtelijke Besl singen(Administrative Decisions Reports)1983, 174 789 The executive at the local level Pres identof the Judical Div iion of the Council of State, 20 November 1980, Admin rechtelijke Besl singen(Administrative Decisions Reports)1981, 328 Pres dent of the Judical Division of the Council of State, 13 April 1983, Administratefrechtelijke Beslissingen(Administrative Decisions Reports)1983, 366 20. Adminstrative Judiciary Divsion of the Council of State, 27 November 1997, Nederlands Tristen Blad(Dutch Lawyers Journal)1998, p. 270
ZWART 4 4 The standing rules in practice 4.1 Individuals 4.1.1 Personally affected 4.1.1.1 Factors causing a personal interest An applicant will only be considered to have standing if he is personally affected by the decision at issue. This would, for instance, be the case if the applicant lives or works in the vicinity of the site to which the decision applies. Thus, when an applicant challenged the permission given by the states deputies14 to a company to start a quarry, he was considered to have standing because he resided some 1000 metres from the proposed excavation site. The states deputies maintained that no direct interest of the applicant was involved, since his house was too far removed from the location. The court found that the distance was not so great that it should be ruled out the excavation would have consequences for the applicant. It relied on evidence put forward by an expert which showed that the digging could cause damage to the applicant s property.15 When an authority gave permission to a company to transfer polluted soil to another location, two employees working close to the new site were also deemed to have standing.16 Similarly, when the board of burgomaster and aldermen17 granted a permit for the exploitation of a brothel, those working nearby were deemed to have standing.18 If the distance is considered too great, the appeal will fail. This was exemplified when the states deputies gave permission for the construction of a road. The applicant was considered to lack standing since he lived some 700 metres from the site.19 In addition to distance, visibility is sometimes deemed to be important. When the board of burgomaster and aldermen gave permission for the construction of a penitentiary, the applicant s objection was that the prison would harm the peaceful character of the town. The court denied him standing because he lived 2000 metres from the building site and a nearby residential area would block his view of the building.20 The case is also noteworthy for the fact that the court decided the building would not have such an impact as to affect the social climate and the living 14. The executive at the provincial level. 15. Judicial Division of the Council of State, 4 November 1987, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1989, 135. 16. President of the Judicial Division of the Council of State, 24 November 1982, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1983, 174. 17. The executive at the local level. 18. President of the Judicial Division of the Council of State, 20 November 1980, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1981, 328. 19. President of the Judicial Division of the Council of State, 13 April 1983, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1983, 366. 20. Administrative Judiciary Division of the Council of State, 27 November 1997, Nederlands Juristen Blad (Dutch Lawyers Journal) 1998, p. 270
STANDING TO RAISE CONSTITUTIONAL ISSUES conditions in the vicinity of the applicant s home 2I This implies that even if the applicant lives or works at some distance from the site, he may nevertheless have standing because of the impact the use of the building will have. Such an approach has been adopted in the following cases. Although living outside the municipality concerned, some applicants challenged the building permission for a storage facility for nuclear waste. The court concluded they still had stand ing because of the use that would be made of the building. However, those living a 100 miles or more from the building site could not validly cla im to have standing 22 When the board of burgomaster and aldermen granted permission to build a school, the court found that the applicants living 115 metres to 750 metres from the site would not be inconvenienced by the building On the other hand, it was likely that the amount of traffic in their living environment would increase as a result of the com ingand going f teachers and pupils. The fact that one of the applicants was living in a dead-end-street did not distract from this conclusion. 23 Sometimes factors which may not be sufficient separately establish standing when viewed in combination. This point was made in a case in which the applicant challenged a decision of the board of burgomaster and aldermen to grant a license to cut a num ber of trees in a park. The applicant clamed to have standing beca use she lived in the vicinity and should be considered a patroness of the trees in view of her pecial relationship with them. The court ignored the patroness issue, focusing on geographical circumstances instead. It pointed out that the applicant was unable to view the trees concerned from her house. She was nevertheless considered to have standing for three reasons. First of all, as had been acknowled ged in official ocuments, the park was considered to have quite an impact on the neighbouring reas. Secondly, the applicant lived so close to the park, approx ima tely a distance of some 100 metres, that it should be considered part of her living environment when taking into account its impact. Finally, cutting the trees was the first step of a total overhaul of the park, which would undoubtedly affect the applicant s living environment 24 As the following cases demonstrate, the competitors of the beneficiary of the decision are considered to be personally affected by it. When the states deputies decided to subsid ise a group of women bargees, in order to ena ble them to acquire a canal boat for carrying trade, several bargemen objected. The court felt that they had standing since the decision would have ramifications for the inland shipping market and would therefore affect competition in this line of business.25 In another case the board of burgomaster and aldermen had designated a local physician as an Adm instrative Judiciary Div iion of the Council of State, 27 November 1997, Nederlands uristen Blad(Dutch Lawyers Joumal)1998, P. 270 Pres ident of the Judicial Division of the Council of State, 19 January 1982, Administratiefrechtelijke Beslissingen(Administrative Decisions Reports)1982, 286 Pres identof the Amhem Dstrit Court, 10 January 1995, Awb-katem( GALAquire)1995, 86 Groningen Ditrict Court, 29 July 1998, Milieu& Recht Judicial Divsion of the Council of State 17 October 1985, Admnstratief rechtelifke
STANDING TO RAISE CONSTITUTIONAL ISSUES 5 conditions in the vicinity of the applicant s home.21 This implies that even if the applicant lives or works at some distance from the site, he may nevertheless have standing because of the impact the use of the building will have. Such an approach has been adopted in the following cases. Although living outside the municipality concerned, some applicants challenged the building permission for a storage facility for nuclear waste. The court concluded they still had standing because of the use that would be made of the building. However, those living a 100 miles or more from the building site could not validly claim to have standing. 22 When the board of burgomaster and aldermen granted permission to build a school, the court found that the applicants living 115 metres to 750 metres from the site would not be inconvenienced by the building. On the other hand, it was likely that the amount of traffic in their living environment would increase as a result of the coming and going of teachers and pupils. The fact that one of the applicants was living in a dead-end-street did not distract from this conclusion.23 Sometimes factors which may not be sufficient separately establish standing when viewed in combination. This point was made in a case in which the applicant challenged a decision of the board of burgomaster and aldermen to grant a license to cut a number of trees in a park. The applicant claimed to have standing because she lived in the vicinity and should be considered a patroness of the trees in view of her special relationship with them. The court ignored the patroness issue, focusing on geographical circumstances instead. It pointed out that the applicant was unable to view the trees concerned from her house. She was nevertheless considered to have standing for three reasons. First of all, as had been acknowledged in official documents, the park was considered to have quite an impact on the neighbouring areas. Secondly, the applicant lived so close to the park, approxima tely a distance of some 100 metres, that it should be considered part of her living environment when taking into account its impact. Finally, cutting the trees was the first step of a total overhaul of the park, which would undoubtedly affect the applicant s living environment.24 As the following cases demonstrate, the competitors of the beneficiary of the decision are considered to be personally affected by it. When the states deputies decided to subsidise a group of women bargees, in order to enable them to acquire a canal boat for carrying trade, several bargemen objected. The court felt that they had standing since the decision would have ramifications for the inland shipping market and would therefore affect competition in this line of business.25 In another case the board of burgomaster and aldermen had designated a local physician as an 21. Administrative Judiciary Division of the Council of State, 27 November 1997, Nederlands Juristen Blad (Dutch Lawyers Journal) 1998, p. 270. 22. President of the Judicial Division of the Council of State, 19 January 1982, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1982, 286. 23. President of the Arnhem District Court, 10 January 1995, Awb-katern (GALA quire) 1995, 86. 24. Groningen District Court, 29 July 1998, Milieu & Recht jurisprudentiekatern (Environmental Law Reports) 1999, 24. 25. Judicial Division of the Council of State, 17 October 1985, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1986, 305
ZWART established GP within the meaning of the Order on the esta blishment of gP s and the Size of their practices. as a result of this designation the gp was allowed to increase the size of her practice which was very small at the tme the decision was taken. The other GP s in the area objected to this decision. The court found they had standing because the decision might have consequences for the competition between local GP S. A shipyard objected to the decision of the states deputies to grant planning perm ission for the construction of a marina in the area. It feared that the marina might conta in a boatyard and a stora ge facility which would cause a reduction In its income. The court felt that the mere fact that the shipyard feared its econom ic interests would be affected was enough to establish standing 27 When the Transport Minister gave a license to a company to construct a pontoon bridge as a first step in setting upa ferry service from an island to the manland, the decision was challenged by the company already operating sucha ferry serv ice. The court found that the latter had standing as it operated the only existing service and would suffer prejudices a result of the new ferry. The case law concerning competitors is not consistent, however. In one case the Culture Minister had given permission to a rad io station to depart temporarily from the programming conditions laid down in its license, since it was no longer capable of fulfill ing them. This decision was challenged by another radio station which had unsuccessfully applied for the same license. The court of first instance had granted standing to the applicant. It pointed out that by challenging the decision the applicant aimed to force the Minister to withdraw its compet itor s license and to give it to the applicant instead. The appeals court, alternatively, felt that the applicant lacked standing since it had not requested the licence to be revoked. A further illustration occurred when the owner ofa building had obta ned permission for renovation. After the alteration the building would provide accommodation to a domestic appliances shop. Several retailers in the area objected to the pemission because they felt that the nique location and favourable rent conditions would give the new shop a ompetitive edge. The court found that the retailers had standing, but only insofaras they were active in the same line of business. 0 On the other hand, the courts have shown they can be more lenient. Several retailers challenged the perm ission given by the board of burgomaster and aldermen to a shop in the area wanting to sell ski-gear The board contested the standing of some of these retailers beca use they did not sell sports equipment. Nonetheless, the court mainta ined the mere fact that they were Judical Divion of the Council of State, 29 December 1987, Admmstratiefrechtelike Beslissingen(Administrative Decisions Reports)1988, 400 Administratefrechtejke Beslissingen(Administrative Decisions Reports)1981, 239 28. Adm instrative Jud iciary Di sion of the Council of State, 27 June 1997, Jursprudentie Administrative Judiciary Division of the Council of State 23 April 1999 Administratefrechtelijke Beslissingen( Administrative Decisions Reports)1999, 322 Presidentof the Judicial Divis ion of the Council of State, 27 November 1980, Administratief- rechtelijke Beslissingen(Administrative Decisions Reports)1981, 375
ZWART 6 established GP within the meaning of the Order on the Establishment of GP s and the Size of their Practices. As a result of this designation, the GP was allowed to increase the size of her practice which was very small at the time the decision was taken. The other GP s in the area objected to this decision. The court found they had standing because the decision might have consequences for the competition between local GP s.26 A shipyard objected to the decision of the states deputies to grant planning permission for the construction of a marina in the area. It feared that the marina might contain a boatyard and a storage facility which would cause a reduction in its income. The court felt that the mere fact that the shipyard feared its economic interests would be affected was enough to establish standing.27 When the Transport Minister gave a license to a company to construct a pontoon bridge as a first step in setting up a ferry service from an island to the mainland, the decision was challenged by the company already operating such a ferry service. The court found that the latter had standing as it operated the only existing service and would suffer prejudice as a result of the new ferry.28 The case law concerning competitors is not consistent, however. In one case the Culture Minister had given permission to a radio station to depart temporarily from the programming conditions laid down in its license, since it was no longer capable of fulfilling them. This decision was challenged by another radio station which had unsuccessfully applied for the same license. The court of first instance had granted standing to the applicant. It pointed out that by challenging the decision the applicant aimed to force the Minister to withdraw its competitor s license and to give it to the applicant instead. The appeals court, alternatively, felt that the applicant lacked standing since it had not requested the licence to be revoked.29 A further illustration occurred when the owner of a building had obtained permission for renovation. After the alteration the building would provide accommodation to a domestic appliances shop. Several retailers in the area objected to the permission because they felt that the unique location and favourable rent conditions would give the new shop a competitive edge. The court found that the retailers had standing, but only insofar as they were active in the same line of business.30 On the other hand, the courts have shown they can be more lenient. Several retailers challenged the permission given by the board of burgomaster and aldermen to a shop in the area wanting to sell ski-gear. The board contested the standing of some of these retailers because they did not sell sports equipment. Nonetheless, the court maintained the mere fact that they were 26. Judicial Division of the Council of State, 29 December 1987, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1988, 400. 27. President of the Judicial Division of the Council of State, 2 December 1980, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1981, 239. 28. Administrative Judiciary Division of the Council of State, 27 June 1997, Jurisprudentie Bestuursrecht (Administrative Law Reports) 1997, 191. 29. Administrative Judiciary Division of the Council of State, 23 April 1999, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1999, 322. 30. President of the Judicial Division of the Council of State, 27 November 1980, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1981, 375
STANDING TO RAISE CONSTITUTIONAL ISSUES retailers established their standing. 3 d of livi ing in the vicinity or be may cause the applicant to be persona lly affected, as the following cases illustrate The owner of an apartment complex had obta ined a demolition order. Both the widow of the architect and his fomer firm opposed the order because they considered the complex an mportant part of the city s post-war architectural heritage, the demolition of which would cause irreparable ham to the city scape. The court ruled that both applicants had standing. The states deputies had authorised the board of burgomasterand aldermen to grant build ing permission for the construction of a dancing school. The building site was in the proximity ofa cemetery where close relatives of the applicant had been buried and for whose graves he was still paying the maintenance costs. The applicant claimed that it would contravene his feelings if a dancing school would be established at such a short distance fiom the cemetery. As next of kin, he considered it his moral duty to oppose the project. The court found he had standing. 3 The board of burgomaster and aldermen had given permission to E to moor a houseboat. This decision was contested by H, who was top of the waiting or mooring places. Since H. chimed that E. s pace should be his, the court found he had standing 34 The education authority had changed the oster of three primary schools in such a way that the pupils and their teachers would have the Friday off every other week. The applicant, who was the parent of a pupil attending one of the schools, challenged this decision. The court felt that he had stand ing 35 4. 1. 1. 2 The interest should not be merely emotional Courts will only deal with cases in which the interest chimed is objective. Thus, when a decision is challenged on emotional grounds the court will find that the applicant lacks standing. This is illustrated by a case concerning the building permission granted to the company running the Concertgebouw(the Amsterdam concert hall) for its renovation. This decision was challenged by the applicant who elt the building should be preserved in its original state. The basis for the challenge was that her father had been a member of the Concertgebouw Orchestra and had therefore grown attached to the building. Consequently, his funeral procession had departed from the Concertgebouw. The applicant therefore considered the renovation projects a personal affront. The court expressed the view that the applicant lacked standing, because her objections were merely emotional and could Presidentof the Judical Division of the Council of State, 20 November 1980, Administratief- rechtelijke Besl singen( Administrative Decisions Reports)1981, 194 President of the Judicial Division of the Counci of State, 30 August 1988, Gemeentestem Municipal Voice)6895, 12 Judicial Divis ion of the Council of State, 29 April 1983, Gemeentestem(Municipal Voice) Presient of the Judicial Div i ion of the Counci of State, 13 June 1983, Ten Berge / troink Administratieve rechtspraak overheidsbeschikk ngen(Judicial Review of Admnitrative Decions Pres dent of the Amsterdam Dstrict Court, 19 July 1999, Juriprudentie Bestuursrecht (Administrative Law Reports)1999, 236
STANDING TO RAISE CONSTITUTIONAL ISSUES 7 retailers established their standing.31 Instead of living or working in the vicinity or being a competitor, other factors may cause the applicant to be personally affected, as the following cases illustrate. The owner of an apartment complex had obtained a demolition order. Both the widow of the architect and his former firm opposed the order because they considered the complex an important part of the city s post-war architectural heritage, the demolition of which would cause irreparable harm to the cityscape. The court ruled that both applicants had standing.32 The states deputies had authorised the board of burgomaster and aldermen to grant building permission for the construction of a dancing school. The building site was in the proximity of a cemetery where close relatives of the applicant had been buried and for whose graves he was still paying the maintenance costs. The applicant claimed that it would contravene his feelings if a dancing school would be established at such a short distance from the cemetery. As next of kin, he considered it his moral duty to oppose the project. The court found he had standing.33 The board of burgomaster and aldermen had given permission to E. to moor a houseboat. This decision was contested by H., who was top of the waiting list for mooring places. Since H. claimed that E. s place should be his, the court found he had standing.34 The education authority had changed the roster of three primary schools in such a way that the pupils and their teachers would have the Friday off every other week. The applicant, who was the parent of a pupil attending one of the schools, challenged this decision. The court felt that he had standing.35 4.1.1.2 The interest should not be merely emotional Courts will only deal with cases in which the interest claimed is objective. Thus, when a decision is challenged on emotional grounds the court will find that the applicant lacks standing. This is illustrated by a case concerning the building permission granted to the company running the Concertgebouw (the Amsterdam concert hall) for its renovation. This decision was challenged by the applicant who felt the building should be preserved in its original state. The basis for the challenge was that her father had been a member of the Concertgebouw Orchestra and had therefore grown attached to the building. Consequently, his funeral procession had departed from the Concertgebouw. The applicant therefore considered the renovation projects a personal affront. The court expressed the view that the applicant lacked standing, because her objections were merely emotional and could 31. President of the Judicial Division of the Council of State, 20 November 1980, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1981, 194. 32. President of the Judicial Division of the Council of State, 30 August 1988, Gemeentestem (Municipal Voice) 6895, 12. 33. Judicial Division of the Council of State, 29 April 1983, Gemeentestem (Municipal Voice) 6766, 4. 34. President of the Judicial Division of the Council of State, 13 June 1983, Ten Berge/Stroink, Administratieve rechtspraak overheidsbeschikkingen (Judicial Review of Administrative Decions Reports), IV, 96. 35. President of the Amsterdam District Court, 19 July 1999, Jurisprudentie Bestuursrecht (Administrative Law Reports) 1999, 236
ZWART not be detem ined objectively 36 The court concluded similarly in a case where a student, who had failed an exam, appealed to the exam commission. The commission decided that the student should receive the pass sheet on the basis of her legitimate expectation to have passed the exam. The examiner, who claimed that there was no ustification for such an expectation, appealed this decision to the exam inations board. The board declared the exam iner sappeal inadmissible for lack of standing. The court found that the decision to give her the pass sheet affected the interests of the student, but not those of the examiner. The court recognised the applicant had provide her with a direct interest, since it had no legal consequences for her d p expressed disagreement with the view that the student had a legitimate expectation and dissatisfaction with the decision of the exam commission, but that did ne amount to being directly affected by the decision. The fact that the applicant fe aggrieved by the decision because it discredited her honour as an exam iner did not As in the U.S., 38 whether or not the interest cla med is merely emotional is clearly a question of degree. The fact that the widow of the architect and his former firm were allowed to fight a demolition order because they considered the building an important part of the city s post-war architectural heritage, proves this point 9 The same can be said of the case where the applicant objected to the construction of a dancing school near a cemetery where close relatives of his had been buried. Of course in this case, despite that his objections were moral, the fact that he was paying the maintenance costs for the graves might have been decisive. 40 4.1.2 Causation According to Dutch case law, the word directly in Article 1: 2 emphasises the inextricable and direct link between the interest of the applicant and the challenged decision. 4I As the following cases make clear, an applicant will have standing only if the interference with his interest was caused by the conduct of the authority concerned The board of burgomaster and aldermen had granted the Amsterdam Public Works Director perm ission to build a combined city hall and music theatre. A composer and several set-designers engaged in opera productions objected to this President of the Judcial Divsion of the Council of State 13 October 1986 Administratiefrechteljke Beslissingen( Administrative Decisions Reports)1988, 194 The Hague Ditrict Court 23 July 1999, Jursprudentie Bestuursrecht(Administrative Law Reports)1999, 257 There, for example, stigmatic njury s n another category than aes thetic ham, cf. Alen Wright 468 U.S. 737, 82 LEd2d 556(1984)and Lujan v. Defenders of Wildlife 504 U.S. 555, 1 L.Ed.2d35l(1992) 39 President of the Judicial Division of the Council of State, 30 August 1988, Gemeentestem Judicial Divis on of the Council of State 29 April 1983, Gemeentestem(Muncpal Voice) ndustrial Appeals Board, 23 January 1996, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports)1996, 182
ZWART 8 not be determined objectively.36 The court concluded similarly in a case where a student, who had failed an exam, appealed to the exam commission. The commission decided that the student should receive the pass sheet on the basis of her legitimate expectation to have passed the exam. The examiner, who claimed that there was no justification for such an expectation, appealed this decision to the examinations board. The board declared the examiner s appeal inadmissible for lack of standing. The court found that the decision to give her the pass sheet affected the interests of the student, but not those of the examiner. The court recognised the applicant had expressed disagreement with the view that the student had a legitimate expectation and dissatisfaction with the decision of the exam commission, but that did not amount to being directly affected by the decision. The fact that the applicant felt aggrieved by the decision because it discredited her honour as an examiner did not provide her with a direct interest, since it had no legal consequences for her.37 As in the U.S.,38 whether or not the interest claimed is merely emotional is clearly a question of degree. The fact that the widow of the architect and his former firm were allowed to fight a demolition order because they considered the building an important part of the city s post-war architectural heritage, proves this point.39 The same can be said of the case where the applicant objected to the construction of a dancing school near a cemetery where close relatives of his had been buried. Of course in this case, despite that his objections were moral, the fact that he was paying the maintenance costs for the graves might have been decisive.40 4.1.2 Causation According to Dutch case law, the word directly in Article 1:2 emphasises the inextricable and direct link between the interest of the applicant and the challenged decision.41 As the following cases make clear, an applicant will have standing only if the interference with his interest was caused by the conduct of the authority concerned. The board of burgomaster and aldermen had granted the Amsterdam Public Works Director permission to build a combined city hall and music theatre. A composer and several set-designers engaged in opera productions objected to this 36. President of the Judicial Division of the Council of State, 13 October 1986, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1988, 194. 37. The Hague District Court, 23 July 1999, Jurisprudentie Bestuursrecht (Administrative Law Reports) 1999, 257. 38. There, for example, stigmatic injury is in another category than aesthetic harm, cf. Allen v. Wright 468 U.S. 737, 82 L.Ed.2d 556 (1984) and Lujan v. Defenders of Wildlife 504 U.S. 555, 119 L.Ed.2d 351 (1992). 39. President of the Judicial Division of the Council of State, 30 August 1988, Gemeentestem (Municipal Voice) 6895, 12. 40. Judicial Division of the Council of State, 29 April 1983, Gemeentestem (Municipal Voice) 6766, 4. 41. Industrial Appeals Board, 23 January 1996, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1996, 182
STANDING TO RAISE CONSTITUTIONAL ISSUES decision. They chimed the music theatre would be designed in such a way that it would be impossible to stage their productions in the new building. Although the court acknowledged that there may bea link between the design ofa build ing and the possibility for artists to perfom there, it denied stand ing to the applicants. The court pointed out that they were not so much challenging the building of the theatre, as bjecting to its layout. The design of the building is the responsibility of the person commissioning it rather than that of the authority 42 The Dutch Intemational relief t pment Minister had granted a subsidy to the ANC in exile, enabling it to offer relief to South African refugees in southem Angola. Several Dutch citizens residing in South Africa cha llenged this decision. They expressed the view that the aNc might use the money to fund its terrorist campaign in South Africa of which they might then become victims. In addition, they pointed out that as Dutchmen living in South Africa they would bear the brunt of the criticism on the decision expressed by the South African people. The court felt that the applicants had standing. It considered that the aim of the ANC was to abolish white supremacy and to establish litical independence in South Africa. To further this aim, the aNc was willing to resort to violent activities like sa bota ge and assaults on South African officials. Since the applicants participated in South African society, it was not farfetched for them to feel threatened by the activities of the ANC. Furthermore, the court did not consider It unlikely that the financial support offered by the minister would be used for other poses than those for which it was intended. The court found that it had been stablished that the applicants, as Dutchmen, were the object of criticism resulting from the minister s decision. +4 The states deputies had approved a budget amendment adopted by a city council a uthorising the council to buy a traffic lights Instalation. The court signalled that the applicant opposed the city straffic policy, to which the approval was only indirectly related. The states deputies had not approved buy ing the insta lation but only the budget amendment authorising the council to do so +>The Health Secretary had given a hospital a declaration of necessity under the ospital Facilities Act for its building plans. Several individuals living in the vicinity of the proposed site challenged this decision. The court considered that, by issuing the declaration, the Health Secretary had only made clear that the building project would be in confomity with the planned hospital services in the region. The declaration did not entail that the project would be carried out, which depended on the building perm ission to be granted by the responsible authorities. The applicants could not be considered therefore to be directly affected by the declaration 4 It appears that the causation requirement has not always been applied Judical Divsion of the Council of State, 8 November 1984, Admin stratiefrechtelijke Beslissingen(Administrative Decisions Reports)1987, 133 This approach s reminiscent of the pos ition taken by the US Supreme Court in Wickand v Filburn 317US 111, 87L. Ed 122(1942). 44. Judical Div s ion of the Council of State, 19 May 1983, Adm nstratiefrechtelike Beslssngen (Administrative Decisions Reports) Pres identof the Judical Division of the Council of State. 10 November 1977. Adm instratief. rechtelijke Beslssingen( Administrative Decisions Reports)1978, 195. Administrative Judiciary Divsion of the Council of State, 28 April 1998 istratefrechtelijke Beslissingen(Administrative Decisions Reports)1998, 333
STANDING TO RAISE CONSTITUTIONAL ISSUES 9 decision. They claimed the music theatre would be designed in such a way that it would be impossible to stage their productions in the new building. Although the court acknowledged that there may be a link between the design of a building and the possibility for artists to perform there, it denied standing to the applicants. The court pointed out that they were not so much challenging the building of the theatre, as objecting to its layout. The design of the building is the responsibility of the person commissioning it rather than that of the authority. 42 The Dutch International Development Minister had granted a subsidy to the ANC in exile, enabling it to offer relief to South African refugees in southern Angola. Several Dutch citizens residing in South Africa challenged this decision. They expressed the view that the ANC might use the money to fund its terrorist campaign in South Africa of which they might then become victims. In addition, they pointed out that as Dutchmen living in South Africa they would bear the brunt of the criticism on the decision expressed by the South African people. The court felt that the applicants had standing. It considered that the aim of the ANC was to abolish white supremacy and to establish political independence in South Africa. To further this aim, the ANC was willing to resort to violent activities like sabotage and assaults on South African officials. Since the applicants participated in South African society, it was not farfetched for them to feel threatened by the activities of the ANC. Furthermore, the court did not consider it unlikely that the financial support offered by the minister would be used for other purposes than those for which it was intended.43 The court found that it had been established that the applicants, as Dutchmen, were the object of criticism resulting from the minister s decision. 44 The states deputies had approved a budget amendment adopted by a city council authorising the council to buy a traffic lights installation. The court signalled that the applicant opposed the city s traffic policy, to which the approval was only indirectly related. The states deputies had not approved buying the installation but only the budget amendment authorising the council to do so.45 The Health Secretary had given a hospital a declaration of necessity under the Hospital Facilities Act for its building plans. Several individuals living in the vicinity of the proposed site challenged this decision. The court considered that, by issuing the declaration, the Health Secretary had only made clear that the building project would be in conformity with the planned hospital services in the region. The declaration did not entail that the project would be carried out, which depended on the building permission to be granted by the responsible authorities. The applicants could not be considered therefore to be directly affected by the declaration.46 It appears that the causation requirement has not always been applied 42. Judicial Division of the Council of State, 8 November 1984, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1987, 133. 43. This approach is reminiscent of the position taken by the US Supreme Court in Wickard v. Filburn 317 U.S. 111, 87 L.Ed. 122 (1942). 44. Judicial Division of the Council of State, 19 May 1983, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1984, 53. 45. President of the Judicial Division of the Council of State, 10 November 1977, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1978, 195. 46. Administrative Judiciary Division of the Council of State, 28 April 1998, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1998, 333
WAR consistently, as the following cases illustrate. The Transport Secretary had approved the new timeta ble for a bus service. The applicant chimed that as a result of this new schedule a large number of buses would pass by his house everyday causing noise and pollution. The court pointed out that the record showed the applicant s house bordered on a very busy mad which was also used by cars, lorries and buses not covered by the approved timetable. The applicant therefore lacked standing+/In a similar case however, the court came to a different conclusion. The states deputies had detemined the timeta ble of the public transport in the province. As a consequence a new bus stop would be constructed near the applicants homes. The court found that they were directly affected by the measure. Whilst admitting a noroughfare was already running close to the houses of the applicants, it pointed out the record showed that the planned bus stop would cause a substantal amount of inconvenience, manly consisting of noise and a lim ited view. 48 Although both of these cases were decided on the basis of factual determ inations. the difference in outcome is remarkable. It looks as though the court in the first case was taking the merits of the case into account during the admissibility stage of the proceedings In the courts view, granting a subsidy to a person will usually not affect the interests of others. This was exemplified when the Amsterdam City Council decided to subsidise an assocation in order to enable it to make a building fit for habitation by its members. A neighbour challenged this decision, claming that she would be inconvenienced by the use of the building. The court considered that the objections raised by the applicant did not concem the decision to subsidise the assocation, but the use that the assocation would make of the building. The court did not deny that there was a connection between the subsidy and the use in the sense that the money would be used to make the build ing fit for habitation. It emphasised, however, that the transfer of money from the Council to theassociation would not in itself aggrieve the applicant. 49 Similarly, a municipal council had decided to grant a subsidy to a youth club enabling it to refurbish its building. The applicants, who lived in the vicinity and were already inconvenienced by the club s presence, challenged the decision because they feared that the club would expand its activ ities after the reconstruction. The court considered that the applicants did not so much object to the subsidy rather than its consequences. If the club should wish to expand its activities after the refurbishment of the building it would be needing additional licenses, the granting of which could then be challenged. 50 An applicant will lack standing if the consequences of the decision are of hi Industrial Appeab Tnbunal, 23 January 1996, Admnstratefrechtelike Beslssingen (Administrative Decisions Reports)1996, 182. Pres ident of the Industrial Appeals Board, 18 November 1998, Admmstratiefrechtelijke Beslissingen(Administrative Decisions Reports)1999, 83 49 Pres identof the Judical Di s ion of the Council of State, 9 February 1984, Ten Berge Stronk, Administratieve rechtspraak overheidsbeschikkingen(Judicial Review of Admnistrative Decions Reports), IV, 103. Judical Divsion of the Council of State, Il December 1980, Ten Berge/Stroink, Administratieve rechtspraak overheidsbeschikkingen(Judicial Review of Admnistrative Decions
ZWART 10 consistently, as the following cases illustrate. The Transport Secretary had approved the new timetable for a bus service. The applicant claimed that as a result of this new schedule a large number of buses would pass by his house everyday causing noise and pollution. The court pointed out that the record showed the applicant s house bordered on a very busy road which was also used by cars, lorries and buses not covered by the approved timetable. The applicant therefore lacked standing.47 In a similar case however, the court came to a different conclusion. The states deputies had determined the timetable of the public transport in the province. As a consequence a new bus stop would be constructed near the applicants homes. The court found that they were directly affected by the measure. Whilst admitting a thoroughfare was already running close to the houses of the applicants, it pointed out the record showed that the planned bus stop would cause a substantial amount of inconvenience, mainly consisting of noise and a limited view.48 Although both of these cases were decided on the basis of factual determinations, the difference in outcome is remarkable. It looks as though the court in the first case was taking the merits of the case into account during the admissibility stage of the proceedings. In the courts view, granting a subsidy to a person will usually not affect the interests of others. This was exemplified when the Amsterdam City Council decided to subsidise an association in order to enable it to make a building fit for habitation by its members. A neighbour challenged this decision, claiming that she would be inconvenienced by the use of the building. The court considered that the objections raised by the applicant did not concern the decision to subsidise the association, but the use that the association would make of the building. The court did not deny that there was a connection between the subsidy and the use in the sense that the money would be used to make the building fit for habitation. It emphasised, however, that the transfer of money from the Council to the association would not in itself aggrieve the applicant.49 Similarly, a municipal council had decided to grant a subsidy to a youth club enabling it to refurbish its building. The applicants, who lived in the vicinity and were already inconvenienced by the club s presence, challenged the decision because they feared that the club would expand its activities after the reconstruction. The court considered that the applicants did not so much object to the subsidy rather than its consequences. If the club should wish to expand its activities after the refurbishment of the building it would be needing additional licenses, the granting of which could then be challenged.50 An applicant will lack standing if the consequences of the decision are of his 47. Industrial Appeals Tribunal, 23 January 1996, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1996, 182. 48. President of the Industrial Appeals Board, 18 November 1998, Administratiefrechtelijke Beslissingen (Administrative Decisions Reports) 1999, 83. 49. President of the Judicial Division of the Council of State, 9 February 1984, Ten Berge/Stroink, Administratieve rechtspraak overheidsbeschikkingen (Judicial Review of Administrative Decions Reports), IV, 103. 50. Judicial Division of the Council of State, 11 December 1980, Ten Berge/Stroink, Administratieve rechtspraak overheidsbeschikkingen (Judicial Review of Administrative Decions Reports), IV, 60