- The ghost of the 'criminal charge': the EU Rights of the Defense in Dutch administrative law
- Review of European Administrative Law
- Volume | Issue number
- 5 | 2
- Pages (from-to)
- Number of pages
- Document type
- Faculty of Law (FdR)
Interfacultary Research Institutes
- Amsterdam Center for Law & Economics (ACLE)
Although observance of the rights of the defense is recognised as a general principle of EU law, not all EU member states have adopted it in its EU form. In the Netherlands we have been struggling with it for some time now. In short, there are two main reasons for the Dutch unease with the rights of the
defense in administrative law:
- Dutch law sees the rights of the defense as closely connected to the rights guaranteed in case of a ‘criminal charge’.
- The rights of the defense in their EU form sit uncomfortably with the General Administrative Law Act (GALA), the Dutch codification of administrative law, which articulates the right to a hearing as a tool for decision making.
This is related to the ‘instrumentalist’ approach in Dutch law towards the rights of the defense, leading to the application of those rights as a useful decision-making tool for the administration. Other Member States leave room for a more ‘essentialist’ approach, which leads to the conceptualisation of those rights as fundamental rights of individual citizens.
Due to the increasing influence of EU law and human rights law the Dutch need to rethink the applicability and scope of the rights of the defense beyond criminal charge cases. Comparative law and the notions derived from EU law can help bring this about.
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