Amendments to APV policy rules

What we do

Every municipality has its own General Municipal Ordinance (APV), so it differs from municipality to municipality. The APV applies to every citizen within the municipality. The APV also lists rules, such as when a permit is required for something. The APV contains municipal regulations regarding public order and safety.

Policy rules are rules made by an administrative body. A policy rule also indicates how it will exercise a specific power. Policy rules can dictate the content of the administrative balancing of interests and determine how this balancing act is achieved. In addition, a policy rule can establish how the facts underlying a decision are established.

Questions regarding the General Municipal Ordinance? Then contact us!

General Municipal Ordinance and policy rules within the social domain

The General Local Ordinance (APV) and the associated policy rules directly impact the social domain. Municipal regulations regarding public order, events, hospitality, market stalls, collections, street assistance, and the tackling of nuisance largely determine the scope within which residents and entrepreneurs can operate. Consequently, an amendment to an APV provision or policy rule can have far-reaching consequences: from an international corporation organizing a terrace or event to the baker on the corner placing a display in front of his shop. MKB Juristen works with mixed teams of lawyers and (corporate) legal counsel who oversee both the administrative law aspect and the practical business side. This page is part of our Social Domain.

The legal character: regulation, policy rule and decision

It is important to distinguish between three types of municipal regulations, because legal protection differs per category.

The APV itself is a generally binding regulation: a general rule that does not designate a person, object, place, or time on a case-by-case basis. A policy rule is defined in Article 1:3, paragraph 4 of the General Administrative Law Act (Awb) as a general rule established by decision regarding the weighing of interests, the determination of facts, or the interpretation of statutory provisions when exercising a power. A decision within the meaning of Article 1:3, paragraph 1 of the Awb, on the other hand, is directed at a concrete case, such as the granting, refusal, or revocation of a permit.

Pursuant to Article 4:84 of the General Administrative Law Act (Awb), the administrative body acts in principle in accordance with its policy rule, unless this has disproportionate consequences for an interested party that are not in proportion to the objectives of the policy rule (the inherent power to deviate).

Can you challenge an amendment to the General Municipal Ordinance or policy rule?

In principle, no direct objection or appeal is available against the amendment of the General Municipal Ordinance itself or of a policy rule. This follows from Article 8:3, paragraph 1, opening words and (a) of the General Administrative Law Act (Awb), which excludes appeals against a generally binding regulation and a policy rule. Because, pursuant to Article 7:1 of the Awb, an objection is linked to an appealable decision, the route of objection against the regulation as such is also closed.

There are two important exceptions and avenues that we utilize in practice:

• Specific decision of general application. If the amended provision does directly designate specific objects, places, or persons (for example, the designation of an area as a nuisance area or a specific pitch), this may constitute a specific decision of general application against which objection and appeal are possible.
• Exceptional review. If a decision is taken based on the amended General Municipal Ordinance (APV) or policy rule that affects a business or resident (such as a permit refusal, revocation, or enforcement decision), the underlying regulation may still be challenged “by means of an exceptional review” in the proceedings against that decision. The administrative court then assesses whether the regulation conflicts with higher-ranking legislation or general principles of law.

Consequences for entrepreneurs: permits and enforcement

For entrepreneurs, amendments to municipal ordinances often only become concrete once they apply for a permit or receive an enforcement decision. However, a full legal process is available against a refusal, revocation, or an imposed order subject to a penalty payment or administrative fine: an objection within six weeks , followed by an appeal to the court and, if necessary, a further appeal.

Important points to consider in this regard are:

• Views. In the case of a proposed onerous decision, the administrative body must give you the opportunity to present your views pursuant to Articles 4:7 and 4:8 of the General Administrative Law Act (Awb).
• Due diligence and proportionality. The decision must be prepared with due care (Article 3:2 of the General Administrative Law Act) and the consequences must not be disproportionate in relation to the objective (Article 3:4 of the General Administrative Law Act). A new permit requirement that is insufficiently substantiated may fail for this reason.
• Interim relief. If the change has urgent consequences for your business operations, you may request interim relief pursuant to Article 8:81 of the General Administrative Law Act (Awb), so that a decision is suspended pending the proceedings.

Our approach and related expertise

We combine a rapid legal analysis of the amended regulation with a practical assessment of your interests. First, we determine whether it concerns a generally binding provision, a policy rule, or a concretizing decision, and which course of action is likely to succeed. Subsequently, we draft a statement of views, notice of objection, or appeal, request preliminary relief where necessary, and conduct consultations with the municipality. Whether you are an international group or the entrepreneur around the corner: our lawyers and in-house counsel consider both the legal strategy and the commercial interests.

concerning General Municipal Ordinances (APV) and policy rules are often linked to other topics within the social domain, such as the division of powers between administrative bodies and municipal subsidies. Do you have questions regarding APV or policy rules? Please contact us!