Sometimes an everyday case can lay bare a very difficult problem within a particular legal system. A recent case (LJN BV0936) decided by the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven), a court of appeal in cases involving administrative law, provides an interesting example. The case is plain and simple. In the small town of Haarlemmermeer, as a consequence of the restrictive regime of the Dutch Trading Hours Act (Winkeltijdenwet), one permit was available for shops that want to open on Sunday evenings. However, there were several applicants. The municipal executive therefore decided to hold a lottery and laid down a policy rule that, in order to ensure the transparency of the procedure, the lottery had to be held in public. Regrettably, the municipal officials who were to carry out the public lottery failed to find a date on which they were all available. They decided to leave the important task of carrying out the lottery to the local civil-law notary. As municipal officials of the regional metropolis of Haarlemmermeer they naturally had lots of other important appointments!

When one of the applicants learns that he has lost the lottery and that his application has therefore been rejected, he lodges a successful appeal at the Trade and Industry Appeals Tribunal. It is found that the municipal executive has departed from its own policy rule without offering sufficient reason and therefore the court quashes the rejection. According to the General Administrative Law Act (Algemene wet bestuursrecht), it is now up to the municipal executive to make a new decision pursuant to the court ruling. Note that the court has not provided a remedy itself, but has left this to the municipality. This division of responsibilities between judge and government is still a basic feature of Dutch Administrative Law. It is often summed up in the slogan ‘The government decides, the judge reviews’. The aim of this principle is to restrict the unelected administrative law judge from entering the territory of the politically accountable government. In recent years the weight of this principle has diminished, while a new and competing principle has gained ground. This new principle favours the swift resolution of disputes, even if this means that the administrative law court sometimes has to decide matters which are normally considered ‘government matters’.

Back to our case. What new decision can the Haarlemmermeer municipal executive take in order to repair the violation of the policy rule? The court itself stated that the board has ‘several options’, but didn’t spell out what these are. This comes as no surprise, because there is no real solution in this case. Let’s take a look at the possible solutions. The local government could repeat the lottery. This would be silly, because there is, as the court notes, no reason to doubt the integrity of the civil-law notary. Therefore there is no reason to believe that the applicant has been disadvantaged by the violation. If the lottery had been held publically, his chances of winning would have been no different. Moreover, repeating the lottery would severely penalize the winner. Awarding damages would be another silly (and expensive) solution, again because the applicant hasn’t been disadvantaged by the violation. Another possible solution would be to automatically award the applicant the permit when it becomes available again (scarce permits usually have a limited period of validity). This solution doesn’t have the disadvantage of penalizing the winner, but would be unfair to future applicants, who find themselves robbed of their chances. It would also be unfair to the other losers, who didn’t lodge an appeal. With no real solution available, the only ‘remedy’ the applicant will most likely get, is the ‘heartfelt excuses’ of the municipal executive and the ‘solemn promise’ that it will never happen again.

This is no isolated case. When the government distributes a scarce permit or grant by way of a lottery, auction, tender procedure or any other allocation procedure, everything has to go right first time. Errors and mistakes made during the allocation procedure are often difficult to correct when the award procedure has been followed through. An important question therefore is how the administrative court can offer an effective remedy when it finds that the rules of the allocation procedure have been violated. One thing seems certain however: the traditional solution of quashing the rejection often doesn’t cut it in these types of cases. It’s a blunt instrument that can easily lead to disappointment: the applicant wins his case, but still leaves the court room empty handed. This is a serious problem. Because what is the point of legal protection if violations can’t be remedied?