The Council of State (RvS) sees opportunities for improvements after the allowance affair and growing criticism. Where in cases that citizens bring against the government now only the government has the right to correct mistakes, citizens do not have that. “We could look at how we can offer citizens a helping hand there. For example, hiring an independent expert and possibly an interim decision, so that citizens can produce more pieces.”

That is what chairman Bart Jan van Ettekoven of the Administrative Jurisdiction Division says, who believes that “the procedure before the court must remain fair”. Van Ettekoven calls the experiences in the allowance affair a “dark page”. “We have seen that we cannot always trust the government. The Benefits department of the Tax Authorities, which, for example, withheld information from the courts, has caused a dent in confidence.”

Recently, there has been increasing criticism of the RvS. Fighting against the government – on major issues, such as nitrogen emissions, to minor ones, for example the construction of a dormer window – would be unfair. The Council would be too much on the side of the government. Van Ettekoven does not agree with that criticism. “We regularly make statements, also in major cases, which the government is not happy with.” As examples, Van Ettekoven mentions the stiksfof ruling, the windmill ruling, the Stint case and, for example, the ruling on the Airbnb rules in Amsterdam.

Checking against the rules of the law

Yet people are often disappointed, even if the RvS proves them right. This was shown in the Nieuwsuur series in Delfzijl, for example: there are now 32 windmills of 40 meters high, but there are dozens more with a height of 204 meters. Local residents are trying to stop the expansion through the courts. They won two major victories, despite all the experts and lawyers the government called in. The Council of State rejected the wind farm twice, but the municipality amended the plans so that they are now legally in order.

“Citizens say that they do not have an equal chance. But there is no such thing as the citizen. For some citizens decisions are positive and for others negative. The government takes all interests into account. The administrative judge looks at the decision-making process, and not at the political choice. We check against the rules of the law.”

Could it be better at the Council of State? What do the experts think? “The government too often gets the benefit of the doubt at the RvS.”

Earlier, the Council of State already apologized to parents who got into trouble as a result of the allowance affair. “What went wrong was that the first cases were mainly fraud cases. Then we took the strict line. But the nature of the cases changed and we remained stuck in the strict groove. We should have applied the proportionality test earlier.”

There is also criticism of the RvS in the House of Representatives. Recently, almost the entire opposition voted in favor of a motion by the SP to do something about it. The core of that motion: administrative justice must leave the RvS. The Council of State is now also the highest adviser to the government.


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