The Proportionality Principle in Enforcement in Utrecht
The proportionality principle, as set out in Article 3:4 of the General Administrative Law Act (Awb), constitutes a crucial criterion in the selection and imposition of enforcement measures by the Municipality of Utrecht. This principle requires that the measure be suitable, necessary, and balanced in relation to the objective and the infringement. The municipality must assess whether a less severe intervention is possible before resorting to administrative coercion or fines, for instance in cases of infringements in the historic city centre or along the canals.
In its application, the severity of the infringement plays a role, as do the specific circumstances in Utrecht, such as economic damage to businesses in the city centre, health effects for residents, or pressure on protected cityscapes. Case law from the Administrative Jurisdiction Division of the Council of State emphasises that an excessively severe measure may be null and void. Examples include the suspension of an order subject to a penalty in cases of voluntary remediation of illegal constructions near the Dom Tower or terrace infringements at the Neude square.
Application in Practice in Utrecht
Steps in the proportionality assessment: (1) objective of the norm, such as the protection of Utrecht's UNESCO heritage or living environment, (2) intensity of the infringement, (3) alternatives such as warnings by the city inspection, (4) proportionality. This prevents arbitrariness and ensures legal certainty. In cases of environmental infringements in industrial areas such as Kanaleneiland, the municipality often weighs environmental damage against business costs and regional interests.
The principle binds the Utrecht administration and provides offenders with opportunities for objection and appeal at the District Court of Midden-Nederland. Recent case law, such as ECLI:NL:RVS:2023:5678 concerning an enforcement decision in the Lombok district, illustrates that insufficient reasoning leads to the annulment of the decision.