Lack of clarity on appeal: who may appeal court ruling on recovery of administrative enforcement costs ⚖️

When an administrative body imposes an administrative coercion order and the citizen does not comply with the order within the specified time, the administrative body will enforce the administrative coercion. In short, this means that the administrative body will do what the citizen should have done. Think, for example, of having containers present on your (business) plot, for storing your company's own goods or for renting to third parties as storage space. If having those containers present is not permitted, they can be removed with the application of administrative coercion. You will first be given the opportunity to remove the containers yourself. If you do not do so, or do not do so in time, the administrative body will do it itself (or have it done). That is administrative coercion.  

It is also possible that administrative coercion is applied without first imposing an order. The administrative body will then, in the above example, immediately proceed to remove the containers, without first giving you a chance to remove the carport yourself. There are two variants of this: the urgent administrative order and the very urgent administrative order. With the ‘normal’ urgent administrative coercion, the you will first receive a letter that the containers will be removed, but you will not be given the opportunity to remove the carport yourself. Very urgent administrative enforcement means that you will not receive a letter in advance. The administrative order is applied immediately and thus the containers are removed immediately, without sending a letter first. 

The decision of the Administrative Law Division of the Council of State discussed in this blog involved ‘ordinary’ urgent administrative coercion. In other words, a letter had been sent, but the citizen was not given the opportunity to end the violation. The urgent administrative order in this case was for the college to confiscate a dangerous dog. The dog, Renzo, was impounded after a number of biting incidents. Renzo's owner appealed against the letter decreeing the urgent administrative order. The owner eventually litigated all the way to the Council of State, but his appeal was declared unfounded. Renzo had to be kept during the objection and appeal process, in case his owner was vindicated and got Renzo back. This ultimately did not happen, but Renzo was kept in custody for a total of almost 9 months. 

The costs of applying the administrative order and (in this case) the costs of keeping Renzo during the objection and appeal proceedings can be recovered from the citizen afterwards. After all, the college does not do so at its own expense. 

The owner of dog Renzo thought the cost charged by the college for keeping the dog was too high. The court ruled that the college had kept the dog for too long and therefore reduced the cost of custody. The court's ruling was appealed not by the college, but by the mayor. This was because the mayor argued that since the amendment to the Assen municipality's General Local Bye-Law (APV) of 21 June 2019, he is authorised to take measures against dangerous dogs, issue administrative orders and recover the costs of administrative orders. 

When the case was heard by the Division, a discussion ensued. Could the mayor recover administrative coercion costs? After all, he was not the one who had taken the decision to recover the administrative coercion costs. The Division ruled that the mayor was inadmissible. Given that it was not the mayor but the college that had taken the contested decision, the mayor was not a party to the proceedings and therefore could not be considered an administrative body. That the power to give notice of administrative coercion and collect administrative coercion costs under the APV had been transferred to him did not alter this. That power had only been transferred to him on behalf of the court after the end of the appeal period and after the decisions on the recovery of administrative coercive costs had been taken. 

An important lesson can be learned from this Divisional decision. When you are litigating against a government, it is important to always check whether the person or body within the government in question is the one who may litigate about the contested decision. As this ruling shows, this sometimes goes wrong, which is a great opportunity for you to get ahead of substantive proceedings.