The Administrative Law Division of the Council of State has issued a summary ruling providing clarity on the possibilities for submitting new evidence and grounds for appeal.
A few years ago, the Division took the position that new evidence should be disregarded by the administrative court if this evidence could also have been submitted during the administrative phase but was not used. However, for some time now, the Division has taken the position that new evidence may be submitted in appeals and higher appeals.
In practice, however, litigants continue to frequently refer to the old case law. This is why the Division has provided explicit clarity on this matter by means of an overview ruling.
The summary ruling follows two rulings (link 1 and link 2) by the Division in 2022, in which the Division distanced itself from the so-called “grounds judge”, at least for disputes outside environmental law. This made it possible to submit new grounds for appeal that had not previously been submitted to the court or during the administrative phase.
This does not mean that unlimited new evidence and grounds for appeal can be submitted at every stage of the proceedings. Both new evidence and new grounds for appeal are subject to the principle of “proper procedural order”. The Division uses two guidelines to determine whether proper procedural order has been violated:
– Is there too little time left for the other party or parties to comment on the substance of the new evidence or new ground for appeal?
– Does the case have to be adjourned, resulting in an undesirable or unacceptable delay in the proceedings in the light of the interests of the other party or parties and the proper administration of justice?
For specific new grounds for appeal, an additional guideline is whether the new ground for appeal raises an entirely new issue at a (too) late stage of the proceedings.
When assessing these points of reference for new evidence, the question of whether the evidence could have been submitted earlier, as well as the scope of the evidence, its complexity and the expertise that would be required to respond adequately, also play a role, according to the Division.
There are a number of exceptions to the possibility of submitting new evidence and grounds for appeal, as the Division explains in its overview ruling.
An important exception is that the Division continues to apply the principle of the court of first instance in environmental law. The reason for this is that in cases of this kind, the interests of third parties often play an important role. However, if it is ruled out that others will be disadvantaged by the inclusion of a new ground for appeal in the proceedings, the administrative court may choose to assess the substance of the new ground for appeal after all.
In addition, the nature of the proceedings, the procedural rules or a legal requirement sometimes limit the possibility of submitting new evidence later in the proceedings, as a result of which evidence can be submitted at the latest at the time of the application or in the objection phase. An example of this is tender procedures based on a subsidy scheme.
There are also a number of special statutory provisions that impose restrictions on the submission of grounds for appeal, such as Section 1.6a of the Crisis and Recovery Act and Section 16.86 of the Environment Act, which stipulate that no (additional) grounds for appeal may be submitted after the expiry of the appeal period.
The overview ruling provides a good picture of the above and other procedural exceptions. In most disputes, the submission of new evidence and grounds for appeal will only be limited by the rules of proper procedure. This line taken by the Division increases legal protection for citizens, is in line with other highest administrative courts that did not apply the principle of “grounds for appeal”, and creates clarity for legal practice.
This report was written by Funs van Diem. For more information on this subject or other administrative law issues, please contact one of the specialists from the Government and Non-Profit team. They can be reached by telephone on 043 321 6640. Appointments can be made both on location and at our offices in Maastricht and Heerlen.
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