University of Groningen On Judicial and Quasi-Judicial Independence Comtois, Suzanne; de Graaf, K.J. IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2013 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Comtois, S., & de Graaf, K. J. (Eds.) (2013). On Judicial and Quasi-Judicial Independence. (Governance & Recht; No. 7). Eleven International Publishing. Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). The publication may also be distributed here under the terms of Article 25fa of the Dutch Copyright Act, indicated by the “Taverne” license. More information can be found on the University of Groningen website: https://www.rug.nl/library/open-access/self-archiving-pure/taverne- amendment. Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 01-10-2021 GOVERNANCE & RECHT 7 NILG 7 NILG GOVERNANCE & RECHT 7 Principles of judicial and quasi-judicial independence are fundamental to all democracies and yet, the notion of independence is still elusive. What is judicial and quasi-judicial independence and why is it important? From whom and what are the judiciary and other adjudicators to be independent? Is the expansion of the judiciary’s power a threat to judicial independence? Are courts inevitably political institutions? Are there sociological pre-conditions needed to secure judicial independence in modern legal systems where the court’s ‘law making’ role is increasingly important? Equally relevant is the question as to what extent principles of judicial independence apply to quasi-judicial bodies such as tribunals, regulatory and policy-making Independence and Quasi-Judicial On Judicial agencies, advisory committees, enforcement bodies and other administrative decision-makers. In other words, to what extent should these bodies be independent from the branches of government that have created them or from the industry they are charged to regulate and, if so, how should the appropriate degree of independence be determined? It is the purpose of this book, as of the Groningen international conference that preceded it, to bring eminent judges and scholars to revisit the concepts of judicial and quasi-judicial independence, to discuss the threats and challenges that perhaps call for different safeguards or solutions and to thereby reflect on the distinctive nature of courts as well as administrative decision-makers and our commitment to adjudicative independence. • The series Governance & Recht is aimed at the general debate concerning governance in relation Editors Prof. Suzanne Comtois and Dr. Kars de Graaf Suzanne Comtois and Dr. Editors Prof. to law. The series provides a platform for contributions to this debate in the fields of positive law, comparative law, legal theory, philosophy of law, sociology of law, political science and public administration. This series is part of the book series published by the Netherlands Institute for Law and Governance (NILG). On Judicial and NILG is a joint venture between the faculties of law at the VU University Amsterdam, the University of Groningen and other research institutions aimed at improving research in the field of Law and Quasi-Judicial Independence Governance. The NILG’s research theme is the interaction between the regulation of public and private interests in law and the way in which these interests are being regulated. Suzanne Comtois is Visiting Professor at the Faculty of Law, University of Groningen, the Netherlands, Editors • Prof. Suzanne Comtois • Dr. Kars de Graaf and Professor at the Faculty of Law, Université de Sherbrooke, Québec, Canada. She is an Associate- member of the International Academy of Comparative Law and member of the Quebec Bar. Kars de Graaf is Associate Professor of administrative and environmental law at the University of Groningen, the Netherlands. He is a member of the board of the Dutch Association of Environmental Law, managing editor of the Review of European Administrative Law (REALaw) and honorary judge of the district court in the North of the Netherlands. ISBN 978-94-6236-094-5 This issue of the Netherlands Institute for Law and Governance Series was funded by the Groningen Centre for Law and Governance and the Department of Administrative Law and Public Administration of the 9 7 8 9 4 6 2 3 6 0 9 4 5 University of Groningen. On Judicial and Quasi-Judicial Independence On Judicial and Quasi-Judicial Independence Editors Prof. Suzanne Comtois Dr. Kars de Graaf Boom Juridische uitgevers Den Haag 2013 © 2013 Suzanne Comtois and Kars de Graaf (Eds.) | Boom Juridische uitgevers Behoudens de in of krachtens de Auteurswet gestelde uitzonderingen mag niets uit deze uitgave worden verveelvoudigd, opgeslagen in een geautomatiseerd gegevensbestand, of openbaar gemaakt, in enige vorm of op enige wijze, hetzij elektronisch, mechanisch, door fotokopieën, opnamen of enige andere manier, zonder voorafgaande schriftelijke toestemming van de uitgever. Voor zover het maken van reprografische verveelvoudigingen uit deze uitgave is toegestaan op grond van artikel 16h Auteurswet dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3051, 2130 KB Hoofddorp, www.reprorecht.nl). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (art. 16 Auteurswet) kan men zich wenden tot de Stichting PRO (Stichting Publicatie- en Reproductierechten Organisatie, Postbus 3060, 2130 KB Hoofddorp, www.stichting-pro.nl). No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means without written permission from the publisher. ISBN 978-94-6236-094-5 ISBN 978-94-6094-862-6 (e-book) NUR 822 www.bju.nl Preface This issue of the Netherlands Institute for Law and Governance Series is the result of an international conference on the theme ‘Judicial and Quasi-Judicial Indepen- dence’ held on 25 May 2012 in Groningen, the Netherlands. We are grateful to the speakers from France, the United Kingdom, Sweden and Canada, as well as from the Dutch universities of Amsterdam, Utrecht, Tilburg and Groningen, who accepted to take part in this conference and generously accepted to make their essays available to a wider audience by contributing to this publication. In addition to the debt we owe to our contributors, we wish to express our gratitude to the Groningen Centre for Law and Governance and the Department of Administra- tive Law and Public Administration of the University of Groningen for financing this project. Finally, we would like to thank Jasper Wesselman, graduate student at the University of Groningen, for his assistance with the logistics of the conference as well as the members of the peer review committee for their meticulous work, which resulted in numerous constructive comments for the authors. It has been a pleasure to edit these essays and we trust that this new issue of the Netherlands Institute for Law and Governance Series on judicial and quasi- judicial independence will contribute to a better understanding of the competing values, complexities and contemporary challenges pertaining to these concepts. July 2013 Suzanne Comtois Kars de Graaf 5 Table of Contents Introduction 17 On Judicial and Quasi-Judicial Independence: Introductory Remarks 19 Suzanne Comtois I – Independence and the Rule of Law 29 Effective Protection of the Independence of the Judiciary in France 31 Guy Canivet The Coming of Age of Review of Administrative Action in the Netherlands: A Battle of Effectiveness and the Rule of Law 47 Willem Konijnenbelt The Function of Judicial Independence in Modern Legal Systems: Preserving the Boundaries of Law 57 Martine Valois ‘Markers’ vs. ‘Makers’: Are Constitutional Courts Legal or Political Actors? 69 Mauro Zamboni II – Independence and Accountability of Judges and Adjudicators 101 Adjudicative Independence: Canadian Perspectives 103 John Evans Judges and the Executive in Britain: An Unequal Partnership? 121 Robert Hazell 7 On Judicial and Quasi-Judicial Independence III – Independence of Regulatory Agencies, Supervisory and Enforcement Authorities 137 The Different Levels of Protection of National Supervisors’ Independence in the European Landscape 139 Annetje Ottow Regulatory Enforcement in the Netherlands: Struggling with Independence 157 Heinrich Winter A Call for Independent Environmental Law Enforcement 167 Gustaaf Biezeveld IV – Independence of Advisory and Complaint Committees and Final Dispute Resolution by Administrative Courts 177 Advisory Objection Procedures in the Netherlands: A Case Study on their Usefulness in Dutch Competition Law 179 Jan Jans and Annalies Outhuijse Advisory Committees on Damage Compensation in Zoning and Infrastructural Planning: A Quest for Independence 195 Dick Lubach Final Dispute