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Authority and Obligation to Enforce in Administrative Law

Administrative bodies are authorised but not obliged to enforce (art. 5:1 Awb), unless mandatory law applies. Motivation is essential; the offender can enforce this through the court in case of negligence.

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Authority versus obligation

In administrative law, the principle of 'authorised but not obliged' to enforce applies, as confirmed in article 5:1 Awb. Administrative bodies have discretionary authority, but must motivate this on the basis of proportionality and carefulness. Exceptions exist for mandatory legal norms, such as in cases of acute danger to public health.

The Council of State applies the 'integral duty to motivate': the administration must explain why no milder intervention is taken or why enforcement is omitted. This prevents passivity in cases of structural violations.

Edge cases

In cases of minor violations, remaining inactive may be justified, provided it is documented. In cases of repeated non-compliance, enforcement is obligatory. Case law (ECLI:NL:RVS:2021:567) states that policy rules do not provide a free pass for non-enforcement.

The offender can demand enforcement via the administrative court if the administration enforces unlawfully or is negligent. This balance safeguards both enforcement and legal protection.