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Marcelle Reneman on EU limits to administrative finality at VAR meeting

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5 August 2019
Marcelle Reneman defended her legal opinion (preadvies) ‘Union Law limits on the finality of administrative decisions’ during the annual meeting of the Administrative Law Association (Vereniging voor Bestuursrecht (VAR)).

The theme of the annual meeting was the future of the principle of finality of administrative decisions. The three other authors who prepared a legal opinion for the meeting are Jaap Polak, Thomas Sanders and Bart Roozendaal. They write about the principle of the finality of administrative decisions in chain decision-making in administrative law (ketenbesluitvorming) and actions for damages.

In her legal opinion, Marcelle Reneman discussed the case law of the CJEU concerning both the principle of finality of administrative decisions and the principle of res judicata. She concluded that the CJEU generally respects the principle of finality of administrative decisions and does not require Member States to provide for procedures to review an administrative decision in order to prevent or remedy infringements of Union law. However, the CJEU seems to set limits on the scope of both the principle of finality of administrative decisions and the principle of res judicata. It does not accept that a final administrative or judicial decision which is in breach of Union law should be regarded as lawful in a subsequent procedure, for example a claim for damages. The second part of the legal opinion discussed the issue of a subsequent asylum application in the context of Union law. Again, the principle of finality of administrative decisions plays a role. Developments in Union law applicable to asylum procedures have led to changes in the Dutch administrative system, in particular the judicial review of rejections of subsequent (asylum) applications. The opinion argued that the interpretation of the Union law framework for subsequent asylum procedures by the Administrative Jurisdiction Division of the Council of State (AJD), the highest administrative court in the Netherlands, is not in line with EU law. In particular, it concerns the AJD's interpretation of the term 'new element or finding' mentioned in Article 40 of the Procedures Directive (2013/32/EU) and the question of when the late submission of evidence is attributable to the asylum applicant. It is also argued that the various exceptions to the principle of finality of administrative decisions are too narrow and that their interrelationship is unclear.

See here the vlog on the four legal opinions (in Dutch).

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