A. Allison's Model Applied to Dutch Law

In his erudite historical and comparative study, John Allison offers a very interesting model to explore the public-private divide. According to Allison, a society with a satisfactory public-private distinction should have the following characteristics:

• — a prevailing and well-developed theory of the state, which appreciates the distinctness of the state administration and ascribes to it certain qualities which can be used to justify special legal consequences;

• — a categorical approach to law, meaning that the law is approached with a sense of system and of the whole of law, particularly referring to an ordering of law in divisions and subdivisions according to clear criteria;

• — a separation of powers between the judiciary and the administration which ensures that the courts entrusted with administrative disputes have both independence and expertise;

• — an inquisitorial or investigative judicial procedure to resolve disputes involving the administration.Footnote ⁶

Allison argues that the absence of any of these features would seriously reduce the workability of the public-private distinction.Footnote ⁷ The model is of an ideal typical character following the “Weberian” method. Allison emphasises that the generalizations in his model are more explanatory than conclusive and they invite supplementary and corrective research.Footnote ⁸ His findings are based on the study of two legal systems, the English and the French: “An analysis of the distinction between public and private law in some other context, perhaps the Dutch or the German, might accentuate features other than those in the model setting.”Footnote ⁹ Allison states: “Their general relevance would be reduced by clear indications of successful distinction in other contexts (…) if those contexts lack the features described in my model.”Footnote ¹⁰ Here we will pick up the gauntlet.

First, as to the conception of the State, different theories of the State and its functions have been developed in the Netherlands.Footnote ¹¹ These theories, however, are conceived as being rather separate from legal theory: the Dutch legal profession has generally been insulated from political theory.Footnote ¹² It is disputed to what extent political theories found their way into the organisation of the State, although certainly in the 1900s liberal theories were rather influential.Footnote ¹³ (We mention this since the public-private divide is indeed commonly associated with liberal political theory.)Footnote ¹⁴ Broadly speaking, the government – or, more accurately, the State – is conceived as being legally distinct from private individuals and as therefore suited to the application of different legal rules, procedures and institutions. But, although there is a certain vague notion as to the tasks of government, in Dutch law the government is not regarded as being consistently identifiable through the elaboration of institutional and functional distinguishing criteria, as required in Allison's model.Footnote ¹⁵ As will be demonstrated hereafter, it is uncertain which functions are to be characterised as governmental or public and which are not. The substance of the public function is considered to be contingent.Footnote ¹⁶ The choice to designate certain functions as governmental is usually laid down in – from a juridical-analytical point of view: rather arbitrary – political decisions. An outstanding example is that for a long time preserving and promoting “The True Religion” was pre-eminently considered a governmental function;Footnote ¹⁷ today it is absolutely not. Maintaining and operating prisons is today considered an outstanding example of a governmental function in the Netherlands, yet this should not necessarily remain so.Footnote ¹⁸ Dutch legal and political theory has quite some difficulty in deciding on even the core functions of the State.

As to the second feature: indeed the Netherlands has a rather categorical approach to law.Footnote ¹⁹ There is, for example, an extensive body of statutory administrative law which is very distinct from private law. Curiously, however, the law on governmental contracts and public authority liability is historically rooted in private law. There is no counterpart for private contract law in the field of public law. Likewise, the law on public authority liability as part of the rules of public law is only at an embryonic stage.Footnote ²⁰ Furthermore, the division between public and private law is not exclusive: the applicability of public law does not in itself exclude the applicability of private law standards at the same time. Neither can cases simply be qualified as either public or private. Usually this qualification depends upon the question which needs to be answered in respect of the specific case and its context; and complex cases give rise to both public law and private law questions. Moreover, the criteria used for these kinds of qualifications are not entirely certain and clear.

As regards the independence and expertise of the courts entrusted with administrative disputes – the third feature – the Netherlands has a separate branch of jurisdiction in administrative law cases. However, the administrative courts in the first instance form a part of the ordinary District Courts.Footnote ²¹ District Court judges subsequently participate in the different sectors (administrative law, private law and family law, criminal law). Therefore, at this point the Dutch system is largely similar to the judicial system in England and Wales. As to the courts of second instance which hear administrative law cases (which at the same time are – with the exception of tax law – the courts of last resort) the situation is more complex in the Netherlands: the Administrative Law Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) has a rather general jurisdiction in administrative law cases; tax assessments are dealt with by the Court of Appeal (Gerechtshof) and by the Supreme Court (Hoge Raad) (both are the ordinary courts of appeal in civil and criminal cases) and there are two specialised courts, one for social security and civil service casesFootnote ²²) is: “the Central Appeals Tribunal”. However, it should be noted that it is not comparable to the tribunals known in the English legal system; therefore we prefer the designation “court”. and one for social-economic administrative law cases.Footnote ²³ In sum: the courts entrusted with administrative disputes are considered to be independent from the administrative authorities. However, District Court judges are not particularly specialised in administrative law; the judges in the separate administrative courts dealing with appeal cases are, however.

When it comes to the fourth feature, the characterization of judicial procedure, we can observe that although the Dutch administrative courts traditionally take a slightly more investigative attitude than the civil courts, the Dutch administrative courts do not follow an inquisitorial procedure (the assessment is limited to the grounds and facts submitted by the claimant and the courts are very reluctant to use their investigating powers).Footnote ²⁴ Civil courts, which because of their residual competence also hear cases against governmental authorities, are bound to follow a strict adversarial procedure. However, it should be noted that a procedural aspect constituted the demand for the existence of an administrative court: proceedings before the administrative courts are less expensive and the courts are more approachable etc.

B. A Multifunctional and Context-Dependant Distinction

In the previous section we have demonstrated that the Dutch legal system does not meet, in all respects, the features of Allison's model. Nevertheless, the public-private law divide has proven to be very workable for Dutch law; the public-private division is a well-worn, deeply-rooted division. At the same time we can observe that the public-private law divide does not lead to a watershed between public and private in Dutch law. Yet our statement concerning its workability is motivated by the multifunctional and context-dependant approach of the divide, which we consider to be the most productive approach. The public-private divide does not have to result in a solid dichotomy; neither does the qualification “public” or “private” have to be undisputed. As said, the main value of the public-private law divide is that it facilitates the justification and rationalization of certain legal choices in the legal system.

In a reply to Peter Cane, Allison designates the public-private law divide as “the summa divisio or supreme distinction of Continental legal thought”.Footnote ²⁵ Indeed, there is no doubt that in a continental legal system like the Dutch the distinction between public and private law is in this sense the supreme distinction. The division manifests itself in the Netherlands not only in judicial protection against governmental action and in the nature of the applicable substantive law, but also in many other spheres of law to which we shall not or only obliquely pay attention. The entire Dutch legal culture is imbued with this distinction, although it is not the sole classifying mechanism. Not only can different kinds of legal relationships be questioned regarding whether they are of a public or private nature, but also areas of regulation, legal rules, judges and lawyers. The division is also very important in legal education.

The supreme nature of the distinction does not impede its context-dependant character. Referring to different countries as different contexts this is also recognised by Allison.Footnote ²⁶ However, we assert that the supreme nature of the distinction does not interfere with its multifunctional character. On the contrary, because it is the supreme distinction it is used for multiple purposes and various criteria are used for drawing the distinction. It is for this reason that we call the distinction between public and private law a multifunctional and context-dependant distinction.

Cane and Freedland largely concur with our view. Cane argues quite extensively that the public-private divide has a normative dimension: “The public/private distinction can be understood as part of a normative theory of accountability under which the exercise of public functions should be subject to a particular accountability regime (...).”Footnote ²⁷ In his view the distinction does not only have a juridical normative character but is ultimately a political one.Footnote ²⁸ From a Dutch point of view there is no doubt that this is observed very prudently. For a continental jurist who is focused on positive law, on the surface the descriptive dimension of the public-private divide is the most obvious one: in most day-to-day cases it is possible to determine without difficulty which elements of a case are of a public or a private nature and what the legal consequences of this public or private nature are (access to the courts, substantive law etc.) Thus, not every case is difficult to qualify. However, like in every continental system, the distinction is also used in a normative and even a political sense: it is definitely a political choice whether health care is a matter of public law or private law regulation and what quality (public or private) the regulator should have. Cane argues that the public-private divide should be regarded as a value-based distinction.Footnote ²⁹ As will be demonstrated in the following sections this is surely correct, at least in the Netherlands. From this perspective we fully understand why Cane rejects the radical instrumentalist position of an empirically-oriented regulation scholar like Scott;Footnote ³⁰ it is not only effectiveness that counts. Moreover: “effectiveness and success can only be judged in the light of normative theory about the way power ought to be distributed.”Footnote ³¹ The next question in this approach, of course, is how this value-based public-private distinction should be drawn. In an earlier article Cane already called the public-private law divide a “multifaceted” distinction.Footnote ³² For this Cane has more recently sought the answer in the idea of “polycontexturality”,Footnote ³³ which he borrows from Gunther Teubner.Footnote ³⁴ With this concept he tends to lean towards a distinction that we regard as multifunctional and context-dependant.

Mark Freedland is also inclined to think in terms of such a distinction.Footnote ³⁵ He adheres to a normative approach defending the public-private divide essentially in order to defend public law. Likewise in his approach the distinction is not an absolute one, but is essentially multi-dimensional, although he elaborates this multi-dimensional character in a slightly different way than we do. Furthermore, it is very interesting to note that Freedland explicitly acknowledges that public law is to be regarded as intersecting, in very important ways, with private law (and also with areas of regulation by law which are not very strongly or clearly identified as being between public and private law). We will see below a particular example of this so-called intersecting effect in the context of Dutch general principles of proper administration and human rights which also apply when private law instruments are used by public authorities.

Hereafter, we will describe the working of the public-private law divide in Dutch law in the area of judicial protection (part III) and the applicability of certain standards of substantive law (part IV). This analysis of Dutch law and the comparison with English law supports the approach which is taken by Cane and Freedland and could serve as a tool to elaborate their position in more depth.

A. Some general Remarks on Judicial Protection in Dutch Law from a Comparative Perspective

The public-private divide is important in both English and Dutch law for choosing the right “route” in judicial protection; in other words: this is one of the – multiple – functions of the public-private law divide. In this section we will describe the Dutch system of judicial protection in the perspective of the public-private divide and compare it with the English system in this respect. At the end of this section we will argue that differences in the use of the qualifications “public” and “private” might very well be explained by the purpose for which the distinction is used here and by the context of the legal system in question.

It goes without saying that the public-private law divide is important in English law as to the amenability to judicial review. In the famous O'Reilly caseFootnote ³⁶ the House of Lords ruled that – besides some exceptions which should subsequently be decided on a case-by-case basis – the procedure for judicial review should be exclusive to public law cases. Because of this decision it became necessary to qualify cases as public law or private law in order to know which kind of proceedings should be commenced. Although the strict nature of the rule from the O'Reilly case has been greatly mitigated over the years, it is important to realize that it really opened the door to considering the judging of public law cases as a specific branch of jurisdiction. Moreover, the Queens Bench Division of the High Court in England and Wales, which is entrusted with the task of judicial review, is nowadays called “the Administrative Court”.

In Dutch law, the judging of public law cases is also a specific branch of jurisdiction. Unlike English law, Dutch law does not have a two-tier system of statutory appeal and judicial review. Judicial protection by the administrative courts is only provided on a statutory basis. Nowadays (that is: from 1994 onwards) this statutory basis can be found in the General Administrative Law Act (hereafter: GALA; Algemene wet bestuursrecht).Footnote ³⁷ An appeal to the administrative court is restricted to a point of law; therefore these statutory appeals are – in the same way as is the case for statutory appeals on a point of law in English lawFootnote ³⁸ – comparable to judicial review.

The GALA makes general provision for an appeal against – what we will here translate as – “decisions” (besluiten). These decisions are pre-eminently considered as public law actions. In general terms, the appeal has to be lodged before the administrative section of the district court. Whenever an act of a public body does not consist of a decision which is susceptible to appeal, it is possible to address the district court in a civil procedure (it is also common in those circumstances to refer to the court as “the civil court”). Therefore the competence of the civil courts is described as “residual”.Footnote ³⁹ The importance of the residual competence of the civil courts should not be underestimated: the civil courts can be addressed whenever there is no competence for the administrative courts. This is rooted in the Guldenmond/Noordwijkerhout case,Footnote ⁴⁰ decided in 1915, which introduced private law remedies in cases concerning governmental actions. The legal basis for these remedies is often to be found in the doctrine of “wrongful acts”. Although the provisions concerning “wrongful acts” can be found in the Civil Code, they also apply to public law bodiesFootnote ⁴¹ and thus provide the basis for a claim against public bodies outside the scope of administrative law.

Not all decisions from public authorities are open to appeal. An important exception are decisions containing primary or secondary legislation or general policy rules. Nevertheless, because of the so-called residual competence of the district courts in civil proceedings, it is possible to address the civil courts in these matters.

All in all, the Dutch system of judicial protection could be described as a system in which the law of the spirit-level applies: the more the competence of the administrative courts is broadened, the less will be covered by the residual competence of the civil courts and vice versa. This is, of course, very different from English law where recourse to civil (or private law) proceedings depends on the existence of a contractual or a tortious relationship. Hereafter, in section III D, we will contend that this dissimilarity might be an important explanation for the differences between Dutch law and English law as to the use of the labels “public” and “private” for the purpose of amenability to judicial review.

B. A closer Look at Access to Dutch Administrative Courts

An analysis of the definition of “decision” in the GALA reveals how the jurisdiction of the administrative courts is determined. A “decision” is defined as “a written decision of an administrative authority constituting a public-law juridical act”.Footnote ⁴² Only juridical acts with a public law character can be considered as “decisions”.Footnote ⁴³ Before focusing more precisely on the characteristics of decisions, it is important to know that Dutch law distinguishes explicitly – more than English law does in the context of judicial review – the qualification of the body from the qualification of its – administrative – acts. The main rule for determining if an individual is dealing with a “decision” is that the authority is invested with a specific statutory power to make legally binding decisions, the essential part of a decision being that it is – by the unilateral decision of the competent authority – legally binding on those to whom it is addressed. Lacking a specific statutory power, the authority's act is either a mere factual action or a private law act. In this connection it is important to note that all public bodies are presumed to have the ability to act in private law as legal persons possessing legal personality.Footnote ⁴⁴ Consequently, they can enter into contracts or use their power resulting from the ownership of land and waterways without disposing of a specific statutory basis in this respect. Indeed, the general ability to use this private law power does not imply that public bodies can use private law instruments as they please.Footnote ⁴⁵ However, private law instruments can play an important role in realizing the public goals taken up by the government. As regards our subject, these private law acts are, just like factual acts, not amenable to appeal but they can be challenged in a civil procedure.

Although the main rule in the Dutch doctrine is that a decision can only be based upon a specific statutory power, this is not the whole story. In past decades the Dutch administrative courts have found ways of reasoning to accept the existence of decisions without a specific statutory basis. The purpose of this reasoning is clear: this opens the door to the administrative courts. This approach is referred to as a “strategic” approach (in contrast to the “dogmatic” approach).Footnote ⁴⁶ But there is more to this than just strategy: in particular, the case law concerning the “public function” can be seen as a demonstration of the changing dogma into a more functional approach to public law. It is not the status of the authority or the source of the power that determines the qualification of an act as public, but its substance.

The case law concerning the “public function” is an important example of the approach whereby the scope of judicial protection by the administrative courts is broadened. The main question considered by the courts in those cases is whether the authority exercises a public function. We find this approach in two types of cases which we – for the purpose of this article – would categorise as follows:

C. Comparison between Dutch and English Law as to the Amenability to Review before the Administrative Courts

Having sketched the outlines of the Dutch legal system, we can now compare Dutch law with English law as to the amenability to review before the administrative courts. Looking at English case law several tests can be found for deciding whether a case should be qualified as a public law case and therefore should be amenable to judicial review.Footnote ⁵⁴ The most important test is to consider the source of power:Footnote ⁵⁵ cases concerning the use of statutory powers usually qualify for judicial review. On the other hand, cases based on a private law relationship – for the most part: contracts – are generally excluded from judicial review. At first sight this seems similar to Dutch law. However, the Dutch statute test differs from the English one in that it demands an express and specific statutory power to take the decision in question.Footnote ⁵⁶ In the English law system the focus of statutory provisions conferring powers on public authorities seems to be more about the function of these powers than the specific instruments which can be used by the authorities. Moreover, for the purpose of amenability to judicial review, English law does not dichotomise juridical acts and factual acts:Footnote ⁵⁷ unlike Dutch law both are amenable to review. The same seems to hold true for decisions concerning property;Footnote ⁵⁸ in Dutch law those decisions will normally be classified as private law acts, which cannot be challenged before an administrative court. Some exceptions exist, as mentioned earlier in the Long Lin case. A public function test, developed by the Dutch courts, sometimes brings these cases within the reach of judicial review. In English law these cases will generally be covered by the statute test. Thus, apparently departing from the same basic principle – statutory power – the scope of judicial review is broader in English law than in Dutch law, because the question whether a statute provides for a public law power is answered in a different way.

The second test in English law is the so-called public function test. This test is to be considered as complementary to the statute test.Footnote ⁵⁹ It seeks to determine whether a body, lacking any formal statutory power, is nevertheless exercising a public function.Footnote ⁶⁰ The public function test is seen as the courts' legal response to privatization, contracting out, self-regulation etc., which have led to the performance of all kinds of activities by private bodies in what used to be the public domain. Case law shows that the courts use several tests to determine whether such a private body exercises a public function and will thus be amenable to judicial review. The most important case on this matter remains Datafin,Footnote ⁶¹ which gave rise to a line of related case law on how the “public function” test can be satisfied. De Smith's notes the “but for” test, the statutory underpinning test, the fact that a body is exercising extensive or monopolistic powers, the absence of consensual submission, and the public funding test – the last one being “of only marginal relevance”.Footnote ⁶²

One can find some similarities between the public function test in Dutch and English law. If we compare the various aspects in English case law to Dutch case law, we recognize in the Dutch case law mentioned above (especially the case concerning the former coal miners suffering from silicosis) the public funding test. Just like in English law, public funding is not in itself sufficient to justify the qualification “public”; otherwise many subsidised organisations would only therefore be qualified as public. The other important aspects in this case – the determination or approval of the criteria for conferring compensation – which transformed the private body into an “extended arm” of the State, bears some resemblance to the “but for” test (in the sense that but for the performance of the private body, the government would have provided the compensation itself) or the aspect of statutory underpinning (the government has woven the body into the fabric of public regulation by explicitly making the public funding dependent on its approval of the criteria). In defining these aspects a link to mere governmental action is sought. It is important to note that the Dutch case law mentioned here actually represents the only examples in which the non-statutory actions of private bodies are qualified as decisions amenable to review. Dutch law does not attach great importance to such an aspect as the existence of extensive monopolistic powers, which appeared to be very important in the context of the Datafin case.Footnote ⁶³ Therefore, as to the non-statutory actions of private organisations, a broader category of cases come within the reach of judicial review in English law than is the case in Dutch law. In Dutch law this category is mainly restricted to private organisations providing subsidies or other kinds of financial contributions. A case which is comparable with the Datafin case would never fall within the jurisdiction of an administrative court in the Netherlands.

D. Possible Explanations for the Differences between English Law and Dutch Law

Although “administrative law” or “public law” was previously regarded as something of an alien concept in English law (largely as a result of the influence of Dicey), we now find that the label “public law” is used in cases where the Dutch continental tradition would never consider using it. It is interesting to look for an explanation for this different approach.

The first explanation might be found in the existence of judicial protection outside the scope of judicial review: in this respect English law differs immensely from Dutch law. In his speech in Datafin Sir John Donaldson M.R. stated: “The principal issue in this appeal, and the only issue which may matter in the longer term, is whether this remarkable body is above the law.” If the Take-Over Panel had not been amenable to judicial review, Datafin could not achieve effective judicial protection elsewhere, for example by obtaining a remedy in the ordinary procedure, the reason for this being that the competence of the civil courts depends on the existence of a contractual or a tortious relationship which did not exist in this case. As seen above, Dutch law has the “fall-back” option of the residual competence of the civil courts: whenever there appears to be no possibility to address the administrative courts because the action of the administrative authority is not held to be characterised as a decision, the civil courts can be addressed. Therefore, the absence of jurisdiction for the administrative courts will only result in the claimant having to resort to the civil courts but it will not result in him or her being left without any remedy.

A second explanation is closely related to the subject-matter of the next section and will therefore only be briefly addressed here. In English law the amenability to judicial review is much more important for the applicability of public law standards than in Dutch law regarding amenability to appeal. The Dutch civil courts will apply these public law standards to all kinds of activities of classicalFootnote ⁶⁴ administrative authorities which fall outside the scope of appeal. Therefore, it is not necessary to create a broad jurisdiction for the administrative courts in order to achieve the applicability of public law standards. Thus the administrative procedure is primarily confined to those classes of cases in which the specific characteristics of this procedure are mainly held to be important: cases concerning the unilateral decisions of administrative authorities (“decisions”).

This latest point also relates to a more fundamental issue: what is the actual purpose of the existence of a separate jurisdiction of the administrative courts? Answering this question comprehensively would go far beyond the reach of this article, but we can touch upon some essential differences of perspectives which can also serve as an explanation for the different approach of the public-private divide in the context of judicial review.

From a Dutch perspective, two purposes of the judicial review of administrative actions can be broadly distinguished. First, judicial review could enhance the quality of administrative decision-making (thus a review serves the promotion of “good administration”). Secondly, the function of judicial review could be to guard the rights of the individual against the abuse of official power. After a decades-long debate, the Dutch legislator cut the knot: judicial review by the administrative courts is supposed to serve as the protection of citizens, not the improvement of governmental quality (although, of course, this can be seen as a by-product).Footnote ⁶⁵ This choice affects the nature of the judicial procedure. Due to the residual competence of the civil courts, the main purpose of the jurisdiction of the administrative courts is not to provide judicial protection as such, but has to be found in the special features of the administrative procedure. The competence of the administrative courts serves the aggrieved citizen by providing an informal and less expensive avenue for judicial protection. These features are held to be important in cases in which administrative authorities are able to do things which no one else would be able to do: to determine someone's legal position by a unilateral decision.

In English law, the purpose of judicial review was historically unambiguous: the role of the courts was to preserve the boundaries of executive powers which Parliament had drawn while conferring powers on public authorities (the “ultra vires” rule).Footnote ⁶⁶ From this perspective judicial review can be regarded as a kind of accountability mechanism. However, the debate started in 1987 by Dawn Oliver concerning the foundations of judicial reviewFootnote ⁶⁷ also appears to have cleared the way for ascribing more purposes to judicial review. In addition to an accountability mechanism, with nowadays a broader perspective than legality in the strict sense of “intra vires”, judicial review is now considered to serve as the judicial protection of citizens and promoting the quality of the administration.Footnote ^68, Footnote ⁶⁹ We mention these developments here because they – and this holds especially true for the perspective of judicial review as a mechanism of judicial accountability in the present-day sense – might explain the broad scope of judicial review in English law compared to Dutch law.

Summarizing our findings: the comparison of English and Dutch law shows that for the purpose of judicial review English law uses the label “public” more generously than Dutch law does. Thus the question of how to divide public law from private law is answered differently in the context of the different legal systems. In our opinion an important explanation for this divergence can be found in the respective legal systems themselves. In other words: the colouration of the public-private divide is context-dependant.

A. Some general Remarks on Substantive Dutch Law from a Comparative Perspective

The public-private divide has also become important in another context: the applicability of a certain set of rules – public law or private law standards. In English law this is most clearly the case with the Human Rights Act 1998 (hereafter: HRA), but the development of substantive and procedural rules is much broader. The Dutch substantive public law standards comprise in particular the public law standards of the GALA, the so-called “general principles of proper administration” and human rights.

In the context of our thesis it is of course relevant to know how and to what extent the applicability of substantive law depends on the public-private law divide. To prevent any misunderstanding, according to Dutch law the basic principle is not that public law standards would only be applicable in public law relationships and private law standards would only apply in private law cases. On the contrary, right from the outset it should be noted that in Dutch law the applicability of public law does not automatically exclude the applicability of private law standards at the same time.

However, in another way the public-private law divide is very relevant for the applicability of substantive law. In Dutch law it is a basic principle – with only one important exception to which we will pay attention later – that public law standards are only applicable to public authorities. In order to facilitate the judging of the applicability of public law standards, it is necessary to qualify the person or body who is acting: is it a public authority or not? The question of the public-private law divide here shifts to the question of the legal status of the body whose acts have to meet certain standards.

In English law the applicability of public law standards is also dependent on the legal status of the acting body. Human rights are only applicable to public authorities. Both legal systems are therefore rather similar in this respect.

However, as regards the so-called “horizontal effect” of fundamental or human rights there is a difference between the two systems which will turn out to be rather important. Dutch law is less reluctant to allow a certain horizontal effect to fundamental or human rights.Footnote ⁷⁰ We will demonstrate that this difference between the legal systems may serve as a possible explanation for the fact that in Dutch law a body is less easily qualified as a public authority.

B. The Dutch general Principles of Proper Administration

The first set of public law standards which are of interest are the general principles of proper administration which guide the exercise of administrative action. These principles are partly codified in the GALA – for example, the principle to state reasons for decisions which are taken, the principle of due care, the principle of proportionality etc.

In dealing with a case the Dutch administrative courts will start by applying administrative law standards. However, in cases – few, though of fundamental importance – in which those standards do not provide for a suitable answer, the administrative courts also resort to private law standards, for example the rules laid down in the Civil Code.Footnote ⁷¹ Nowadays there is some discussion as to the question whether these private law standards are directly applicable or only in an analogous way.Footnote ⁷²

Conversely, according to Dutch law, it is important to note that public law standards also apply when the actions of public authorities are to be qualified as private law acts (which are not reviewable in the administrative courts, as seen above). Thus the applicability of these public law standards does not have an exclusive character. Whenever a public body uses its position as a landowner or enters into a contract – in Dutch law qualified as private law acts – both private law standards (the Civil Code) and public law standards (the general principles of proper administration) would apply.

In the landmark case of Amsterdam v Ikon, the Supreme Court ruled that the general principles of proper administration, and particularly the legal principle of equality, were directly applicable to governmental action based on private law. Later case law shows that this rule applies regardless of what kind of general principle of proper administration is concerned and regardless of what kind of governmental private law act is in question.Footnote ⁷³ A few years later, this ruling was codified in the Civil Code (section 3:14) and in the GALA (section 3:1(2)). Hence, a combination of the applicability of public and private law standards is a rather common phenomenon in Dutch law.

As to the applicability of substantive public law standards it is important to distinguish the classical administrative authorities from other administrative authorities.Footnote ⁷⁴Classical administrative authorities must comply with public law standards regardless of the nature of their acts, e.g. public or private (buying computers), juridical or merely factual (informing the public). As to the other administrative authorities, however, according to the GALA the public law standards only apply in as far as they are administrative authorities, which means in as far as they are invested with public authority. Hence, the other administrative authorities only have to take public law standards into account to the extent that they take decisions; as to other kinds of acts they can behave like every private legal person. Thus, the GALA system is very comparable with the system of the Human Rights Act 1998 in English law on which we will focus later.

C. Human Rights in Dutch Law

The second set of public law standards which should receive attention are fundamental rights or human rights. Since their primary function is to protect individuals against public or administrative authorities, their applicability is of the same nature as demonstrated in the former subsection focusing on the public law standards in the GALA and the general principles of proper administration. Upon the general reform of the Dutch Constitution in 1983, the Government stated that all public bodies are subject to the fundamental rights of the Constitution, regardless of the nature of their acts, including, in particular, private law acts.Footnote ⁷⁵ Thus, in the Rasti Rostelli case the Supreme Court held that the freedom of religious belief and practice prohibited the municipal authorities of a small town (with a major orthodox protestant community) from refusing to let a municipal hall to an artist whose performance they objected to solely on religious grounds.Footnote ⁷⁶

In principle, the impact of human rights on legal relations between private legal persons is also accepted. The acceptance of this so-called “horizontal effect” was again stated in the general constitutional reform in 1983,Footnote ⁷⁷ although it is still not undisputed in Dutch legal doctrine.Footnote ⁷⁸ The actual horizontal applicability of each fundamental right should be considered on a case by case basis. Moreover, different levels of horizontal effect can be distinguished.Footnote ⁷⁹ Merely an indirect horizontal effect is met when a fundamental right gives a certain direction to the interpretation of a private law provision. On the other hand, a full direct horizontal effect is met when the courts apply human rights directly – taking account of the statutory limitation clauses – in relationships between individuals. There is no strict division of the different levels of horizontal effect; it is rather a sliding scale. Since the Netherlands has a monistic system for the implementation of international law, the horizontal effect is similar for international human rights.

Analyzing Dutch case law, few cases can be found in which human rights are applied explicitly in relations between private legal persons. The famous Dutch case on horizontal effect is the AIDS test case.Footnote ⁸⁰ In this case a rape victim claimed that the court should order the rapist to undergo an AIDS test so that she would know whether she might be contaminated with HIV. The rapist referred to his fundamental right of physical integrity. The Supreme Court accepted the horizontal effect of this fundamental right in principle, although in this case the interest protected by this fundamental right was weighed against the victim's justified interests. More cases can be found in which human rights give a certain direction to the interpretation of a private law provision, such as the provisions concerning “wrongful acts”.

D. Comparison between Dutch and English Law as to the Effect of Substantive Law

Below we take a look at the applicability of public law standards in English law and draw a comparison between the two legal systems. It is important to realize that whenever the full horizontal effect of human rights becomes more accepted practice, the less important the debate about the public-private law divide will become. After all, with full horizontal effect human rights are also applicable to non-public authorities and thus the public-private law divide is no longer relevant.

English law has not generally accepted the horizontal effect of human rights, although there is some discussion as to the applicability of human rights in horizontal relationships.Footnote ⁸¹ Like in Dutch law concerning the applicability of the general principles of proper administration, in English law the applicability of human rights depends on the type of administrative authority. The definition of “public authorities” to which the HRA applies can be found in section 6 HRA. A first category of “public authorities” is the so-called “core public authorities” (“classical” public authorities; a Minister, a County Council etc.). It is not necessary to classify the actions of these public authorities, because the HRA applies to all their actions (also, for example, to buying computers). A second category is the so-called “hybrid public authorities”, which are described in section 6 (3) (b) HRA as “any person certain of whose functions are functions of a public nature”. The HRA only applies to these authorities in as far as they can be classified as “hybrid public authorities”- when they are performing a function of a public nature. Moreover, in section 6 (5) HRA it is stated that in relation to a particular act, a person is not a public authority by virtue of only subsection (3) (b) if the nature of the act is private. It turns out that this system is based on a scheme similar to the Dutch scheme on the applicability of substantive public standards: for classical public authorities the HRA is applicable to all their actions; to hybrid public authorities the HRA only applies in as far as they perform functions of a public nature.

The interpretation of “hybrid public authorities” is of great importance for the applicability of the HRA to private or privatised organisations. For several years there has been robust discourse as to the scope of this definition.Footnote ⁸² Although there is a certain similarity between the tests in the context of judicial review and the tests in the context of the HRA, the concept of a “public function” in both contexts should not be identified. An important note is that the test whether a body is exercising a function of a public nature in the context of the HRA is only relevant for the so-called hybrid public authorities. As seen in the context of judicial review, reading the CPR gives the impression that for the amenability to judicial review, the public function test is a general test which should always be applied. If we consider this to be true, a logical conclusion would be to qualify all activities performed by core public authorities which have been proven to be amenable to judicial review as performances of a public function.Footnote ⁸³ From this point of view a logical argumentation would be that the transfer of activities from a core public authority to a private body does not change the public-function character of this activity.Footnote ⁸⁴ However, this was not the conclusion of the House of Lords in the YL case in 2007, Footnote ⁸⁵ where a private body exploiting a care home was held not to be performing a public function. Therefore, there are two possible conclusions. Either the CPR test of the public function is not the general test it purports to be (proof for this conclusion is that it is seldom used in cases concerning core public authorities acting on a statutory basis) or the meaning of a “public function” in the context of judicial review is different from the meaning of a “function of a public nature” in the HRA.Footnote ⁸⁶ Whatever the right conclusion may be, the YL case has generated a great deal of criticism regarding the House of Lords' explanation of a “function of a public nature”. It is interesting to see that the case argumentation is partly dogmatic and partly political and pragmatic. Shortly after this ruling it was explicitly stated in the Health and Social Care Act 2008 that the kinds of organisations concerned in the YL case should, for the purpose of the HRA, be considered to be hybrid public authorities. This kind of intervention by the legislature – to make fundamental rights directly applicable by qualifying the specific body as a public authority – is not as yet of a generic nature. The same discussions could still arise in other fields, for example in the field of education or health care.Footnote ⁸⁷

Transferring the YL case to the Dutch context, the Dutch courts would never categorise a private care home like Southern Cross as an administrative authority. The question as to the legal qualification of Southern Cross as a public or private authority would not even arise. Therefore, the House of Lord's conclusion in the YL case comes as no surprise from a Dutch point of view; on the other hand, the intervention in the Health and Social Care Act 2008 is very surprising! As demonstrated earlier, in Dutch law the general principles of proper administration are only applicable to administrative authorities. Thus, the general principles of proper administration would not be applicable in a similar case in Dutch law.

However, whether or not a private care home is labelled as an administrative authority does not imply that, according to Dutch law, human rights would not be applicable in this case. As seen before, in Dutch law there is some space for a horizontal approach of human rights, although the scope of the horizontal effect of human rights is still in dispute. Therefore YL's claim for one's private life, family life and home to be respected could in Dutch law very well be successful against a private party like a care home.

E. Possible Explanations for the Differences between English and Dutch Law

It is remarkable that in English law the labels “public law” and “public authority” are used in a wider sense than in Dutch law. Again, it is worthwhile searching for explanations for the differences between English and Dutch law.

First, since Dutch law is more generous in its interpretation of the horizontal approach to fundamental rights or human rights, there is no need to use the label “public” for private parties which exercise a public function in order to lean towards the applicability of these rights. Moreover, public law standards also apply to the private law acts of classical administrative authorities, so there is no need to categorise these acts as “public law acts” in order to realize the applicability of these public law standards. Another explanation is somewhat more technical and focuses on the remedy approach which is more dominant in English law. While there is a statutory duty for a public authority to arrange and fund housing and care for elderly people (as it was in the YL case), an individual could instigate a claim against the local authority – in Dutch law based on a wrongful act – for not having made the kind of arrangements that comply with, for example, article 8 ECHR. However, it is doubtful that instigating such a claim in Dutch law would prevent the claimant being removed from the home; most probably it will result in financial compensation. Yet, in Dutch law in a case like YL financial compensation would be considered – unlike in English law – a sufficient remedy. It seems that in English law this approach, which would require the acceptance of damages paid by the local municipality as a substantive and sufficient remedy, is not considered as an acceptable solution. Therefore, English law is searching for a means of redress against the private organisation with responsibility for the care home. This might explain the need for the qualification of the private care home.