Division of powers

What we do

A division of powers is also known as the separation of powers or the distribution of powers. The division of powers is the organizing principle of modern states, according to which legislative, executive, and judicial tasks are performed by different and independent bodies.

The division of powers enables different powers to limit and control each other. This creates a check-and-balance dynamic. In this way, an equilibrium is established between them, and no one can override anyone else.

The separation of powers was established to prevent abuse of power. This is to ensure that public power is distributed equally among the three basic organs of the state (the legislative, executive, and judicial branches).

The separation of powers is fundamental to the existence of freedom. This is because none of these powers has the strength to impose itself on another.

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Division of powers in the social domain

Within the Social Domain, the concept of the division of powers takes on a very concrete administrative law meaning. The focus here is not so much on the classic separation of powers, but rather on the question: which administrative body is authorized to make which decision? When a municipality decides on a social assistance benefit, a provision under the Social Support Act (Wmo 2015), youth care under the Youth Act , or a measure under the Participation Act, that decision must be taken by the correct, competent body. If this is not the case, there is a lack of competence, and the decision may be set down on appeal or objection.

At MKB Juristen, lawyers and in-house counsel work together in mixed teams. We assist both local authorities and their governing bodies, as well as the parties affected by those decisions: from a large healthcare provider or welfare institution to the independent care provider or the baker on the corner receiving a municipal order.

Attribution, delegation, and mandate: the three flavors of authority

The manner in which an administrative body acquires its authority is laid down in Title 10.1 of the General Administrative Law Act (Awb). Administrative law has three forms:

• Attribution (Section 10.1.3 of the General Administrative Law Act, Article 10:22) — the granting of an entirely new power to an administrative body by statutory provision. This is the original source of power, for example, the power that the Participation Act or the Social Support Act 2015 grants directly to the Municipal Executive.
• Delegation (Section 10.1.2 of the General Administrative Law Act, Article 10:13) — the transfer of an existing power to another body, which subsequently exercises it under its own responsibility. Pursuant to Article 10:15 of the General Administrative Law Act, a statutory basis is always required for this, and Article 10:14 of the General Administrative Law Act prohibits delegation to subordinates. After delegation, the delegating body can no longer exercise the power itself (Article 10:17 of the General Administrative Law Act).
• Mandate (Section 10.1.1 of the General Administrative Law Act, Article 10:1) — the authority to take decisions in the name of an administrative body. With a mandate, the authority does not shift: the mandator remains authorized and responsible, whereas, for example, a civil servant actually signs. In practice, most decisions in the social domain are taken by mandate.

The distinction seems technical, but it is decisive. A decision taken by an unauthorized body or outside the limits of the mandate suffers from a lack of authority.

Which body is authorized within the municipality?

The Municipalities Act regulates the internal division of powers between the municipal council, the Municipal Executive, and the mayor. In the social domain, most executive decisions rest with the Municipal Executive:

• Article 147 of the Municipalities Act stipulates that municipal ordinances are adopted by the council; the council therefore establishes the frameworks and rules (think of the Wmo ordinance or the reintegration ordinance).
• Article 156 of the Municipalities Act allows the council to transfer (delegate) powers to the municipal executive or a committee, with a number of statutory exceptions that the council must always retain itself.
• Article 160 of the Municipalities Act charges the Municipal Executive with the day-to-day administration of the municipality and with the implementation of council decisions — this includes individual decisions regarding residents.

In practice, this means: the council adopts policy and regulations, the municipal executive implements and issues decisions, and the actual handling is usually carried out by civil servants under delegated authority or sometimes by an implementing organization. We map out this chain and verify whether every decision is based on the correct link.

Lack of jurisdiction and the decision on the objection

A common and costly defect concerns the decision on an objection. Article 10:3, paragraph 3 of the General Administrative Law Act (Awb) prohibits the mandate to decide on an objection from being granted to the person who took the contested primary decision under delegated authority. Consequently, the person who took the initial decision may not also rule on the objection against it. Violation of this rule constitutes a defect in competence that can lead to annulment on appeal.

For our clients, this works both ways. For an administrative body, we verify whether the mandate regulations and the register of powers are correct, ensuring that decisions stand. For a citizen, institution, or entrepreneur who disagrees with a decision, we investigate precisely whether the decision was taken by a competent body—after all, a lack of competence is a strong ground for objection and appeal.

Our approach: from international corporation to the baker on the corner

The division of powers affects both large and small parties. A nationally operating care chain contracting with dozens of municipalities benefits from a clear analysis of who has authority where; the independent entrepreneur who suddenly receives an enforcement or recovery decision wants to know whether that decision was taken legally. Our mixed teams of lawyers and (in-house) legal counsel bridge both worlds, with an eye for both the legal line and practical feasibility within the Social Domain.

Frequently asked questions about the division of powers

What is the difference between mandate and delegation?
With a mandate, the authority remains with the original administrative body; another party acts merely in its name. With delegation, the authority is actually transferred, and the other body exercises it under its own responsibility. Delegation requires a statutory basis (Article 10:15 of the General Administrative Law Act), whereas a mandate does not, in principle.

What happens if a decision is taken by an unauthorized body?
In that case, there is a defect in competence. The decision can be annulled on objection or appeal. Sometimes rectification is possible if the competent body subsequently ratifies the decision, but this requires careful attention.

May the civil servant who rejected my application also decide on my objection?
No. Article 10:3, paragraph 3 of the General Administrative Law Act (Awb) prohibits the person who took the primary decision under delegated authority from also deciding on the objection under delegated authority. If this happens nonetheless, the decision on the objection is defective.