Practice areas: Administrative law
In Dutch administrative law, the distinction between a concretiserend besluit van algemene strekking (CBAS — concretising decision of general application) and an algemeen verbindend voorschrift (AVV — generally binding rule) determines whether a party has access to the administrative courts. As a rule, no right of appeal lies against an AVV; against a CBAS, it does. This makes the distinction not merely academic, but directly relevant to legal protection in practice. This article explains the difference, illustrates it with examples and discusses the latest legal developments.
A decision (besluit) is a written act by an administrative body constituting a public-law legal act (Article 1:3(1) of the General Administrative Law Act — Awb). The Awb distinguishes between individual decisions (beschikkingen) — directed at a specific or individual case — and decisions of general application (besluiten van algemene strekking, BAS). Within the latter category, the distinction between AVV and CBAS is the most significant for legal practice.
A generally binding rule is an externally operative, binding rule issued by a public authority acting pursuant to a statutory power. An AVV contains general, abstract rules that are capable of repeated concrete application without further justification.
By way of example: under the Municipalities Act (Gemeentewet), a municipal council is authorised to adopt by-laws that it considers necessary in the interest of the municipality. The General Local By-Law (Algemene Plaatselijke Verordening, APV) is the primary instrument for this purpose. The APV of Amsterdam provides, for instance, that it is prohibited to hold an event without a permit from the mayor — an AVV. Equally an AVV is the provision that permit applications for major events will not be processed if the event does not appear on the events calendar for that year. No right of appeal to the administrative courts lies against the decision to incorporate such provisions into the APV.
A concretising decision of general application specifies the scope of application of a generally binding rule by reference to time, place, person or object. A CBAS is distinguished from an AVV by the fact that it does not lay down an independent norm, but rather gives concrete effect to an existing one.
As an example, the mayor of Amsterdam adopted the events calendar for 2025 by decree of 30 December 2024. The calendar determines which major events may take place in 2025, specifying the event, date, location and maximum number of visitors. This decision is a CBAS — and a right of appeal to the administrative courts does lie against it.
An important caveat: a CBAS may also be included in an APV. The Amsterdam District Court held in 2011 that an APV provision stating that the sound of a carillon does not constitute noise nuisance was a CBAS rather than an AVV (ECLI:NL:RBAMS:2011:BQ3933).
The line between an AVV and a CBAS is not always straightforward in practice. Consequently, there are several decisions of courts and tribunals where the character of certain decisions is addressed (see, for example, ECLI:NL:RVS:2022:517 on the heat plan or ECLI:NL:CBB:2021:425 on the decision to designate main railways).
In July 2024, the President of the Administrative Jurisdiction Division of the Council of State asked State Councillors Advocate General Widdershoven and Snijders to issue an opinion on the nature of amending an appendix to the Health Insurance Regulations. Annex 1A lists medicines for which a reimbursement ceiling has been set; Annex 1B lists those for which no such ceiling applies. The central legal question is whether a ministerial decision to place a medicine on one of these annexes constitutes an AVV or a CBAS.
The President also asked the State Councillors to formulate general principles for determining the character of decisions at the interface of AVV and CBAS, and to address the consequences of that characterisation for judicial review and the possibilities for legal protection available to third parties. The forthcoming opinion is expected to provide valuable guidance for legal practice.
Want to stay up to date? Subscribe to our newsletter!