Repressive administrative law
| Author | Albertjan Tollenaar |
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| DOI | 10.1177/1388262718761392 |
| Subject Matter | Articles |
Article
Repressive administrative law:
Assessing culpability in Dutch
social security regulation
Albertjan Tollenaar
Department of Public Law and Public Administration, University of Groningen, the Netherlands
Abstract
With the introduction of strict obligations and sanctions in social security, the traditional boundary
between criminal law and administrative law seems to fade away. Administrative fines in particular
facilitate strict, efficient and effective law enforcement. In spite of the fact that administrative fines
are part of administrative law, criminal law safeguards are still applicable. This could cause prob-
lems, since administrative authorities and administrative judges are not necessarily familiar with
these criminal law principles. This article addresses the question of how administrative authorities
and administrative judges assess culpability when deciding on administrative fines in the Nether-
lands. The main finding is that administrative authorities, and especially municipalities, overestimate
the degree of culpability. The case shows that, in the search for more repressive instruments, it is
imperative to allow courts to keep an eye on the proportionality of the sanctions.
Keywords
Court procedures, administrative law, law enforcement, fines, penalties
Introduction
Administrative law is increasingly used to punish and to discipline the citizen. The result is a rather
new branch of administrative law that has some of the characteristics of criminal law. This new
branch of administrative law has two characteristics. First of all, the norms and obligations are
rather vague. The claimant has to provide all information that might be relevant for the assessment
of the right to the benefit. This leaves wide discretion for administrative authorities that have to
interpret whether or not such an obligation is fulfilled. In the end, it is up to the administrative
authority to decide whether the citizen has disclosed all relevant information.
Corresponding author:
Albertjan Tollenaar, Department of Public Law and Public Administration, University of Groningen, PO Box 716 Groningen
9700 AS, the Netherlands.
E-mail: a.tollenaar@rug.nl
European Journal of Social Security
2018, Vol. 20(1) 21–30
ªThe Author(s) 2018
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DOI: 10.1177/1388262718761392
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