Division clarifies relationship between duty of principle to enforce and application of principle of proportionality

In its ruling of 5 March 2025, the Administrative Jurisdiction Division of the Council of State clarified the relationship between its jurisprudence on the principle duty of enforcement and its jurisprudence on the application of the principle of proportionality. 

First, a brief explanation of both definitions. The duty of principle to enforce means that, in principle, the administrative body must always enforce if it becomes aware of a violation. This duty of principle may be at odds with the principle of proportionality, which means that the consequences of a decision must not be disproportionate for interested parties in relation to the objective to be served. 

The Division has ruled on that ratio on several occasions. In its ruling of 3 March 2025, it clarified its line in doing so. It stated that, in determining whether enforcement action could be waived, it should be assessed whether enforcement action would be disproportionate. This should draw on the so-called Harderwijk ruling from 2022, which implies that the administrative judge must assess whether the decision is appropriate and necessary to serve desired purpose, and then determine whether the decision is balanced in the specific circumstances of the case. 

The Division does emphasise that enforcement serves the public interest and must therefore remain paramount. Enforcing the law is only disproportionate if the circumstances in the specific case are so significant that the public interest must prevail. Those circumstances then take precedence over the public interest. 

In short, enforcement is therefore the rule, but in the event that the decision is not suitable, necessary and balanced to serve the desired purpose and there are therefore circumstances that must outweigh serving the public interest, the principle of proportionality precludes enforcement. 

You can read the State Council ruling here.