The Central Appeal Tribunal (“CRvB ”) – the highest Dutch administrative court in the area of social security provisions, social insurance, and civil service matters – is adopting a different approach, with immediate effect, as regards the timely filing of objections and appeals within the meaning of Section 6:9(2) of the General Administrative Law Act [Algemene wet bestuursrecht, “Awb”]. Given that the moment of posting [terpostbezorging] is important for timely submission as referred to in that paragraph, the CRvB looked, on the basis of established case law, at the issue of when a postal item is deemed to have been deposited in a PostNL letterbox or presented at a PostNL post office. In a judgment rendered on 27 March 2019 (C-545/17, ECLI:EU:C:2019:260), however, the Court of Justice made it clear – to summarise briefly – that European Union law basically precludes the designation of only a single postal service to which case documents may be submitted and thus be deemed to have been lodged on time, as if they had been presented to the relevant court at that time. With its ruling of 16 June 2020 (ECLI:NL:CRVB:2020:1207), the CRvB has altered its approach accordingly: a letter of objection or appeal is also deemed to have been lodged in good time if it has been submitted to a postal carrier other than PostNL – although this must be a carrier registered with the Netherlands Authority for Consumers and Markets (ACM) – before the end of the statutary period , provided it is then received no later than one week after the end of that period.
Summary of the conveyance theory of Section 6:9(2) Awb
The statutory period for submitting a letter of objection is six weeks (Section 6:7 Awb). That period commences on the day following the day on which the relevant decision is announced in the prescribed manner (Section 6:8(1) Awb). In the case concerned here, the prescribed manner was “by sending or delivery to” [door de toezending of uitreiking aan] the relevant resident and recipient of benefit (Section 3:41 Awb).
A letter of objection is deemed to have been submitted in good time if it has been received before the end of the statutary period (Section 6:9(1) Awb). This not incomprehensible reasoning is also referred to as the “receipt theory” [ontvangsttheorie].
Section 6:9(2) Awb also includes the “conveyance theory” [verzendtheorie]. The latter provides something of a solution if the objection or appeal is not received before but only after the end of the statutary period. It assumes that a letter of objection or appeal that is posted before the end of that period but not received until after the end of it has nevertheless been submitted in good time, provided that it is received no later than one week after the expiry of the period. Given that the moment of posting [terpostbezorging] is important as regards timely submission as referred to in Section 6:9(2) Awb, the CRvB looked, on the basis of established case law, at the issue of when a postal item is deemed to have been deposited in a PostNL letterbox or presented at a PostNL post office.
PostNL not used, but posting still on time
In this ruling, the CRvB recognises that it is established case law that only conveyance via
PostNL can be regarded as conveyance by post within the meaning of Section 6:9(2) Awb. In the judgment (ECLI:EU:C:2019:260) rendered by the Court of Justice on 27 March 2019, however, the CRvB found reason to no longer understand conveyance by post within the meaning of Section 6:9(2) Awb to mean solely dispatch via PostNL. This means that from now on the afore-mentioned conveyance theory will also apply if a postal service provider other than PostNL is used. Is important to note, however, that this only applies to other postal service providers that are registered with the Authority for Consumers and Markets (ACM). The CRvB’s ruling shows that it attaches value to such registration. This is because all enterprises offering post conveyance services are obliged to notify themselves to the ACM, after which the ACM registers the enterprise and monitors its compliance with the obligations to which registered post conveyance services are subject. Those obligations include the secure handling of postal items on their way from sender to recipient.
Will this approach now automatically be adopted by all the highest administrative courts?
No, at least not yet. The CRvB explicitly emphasises in its ruling that it is applying this new approach with immediate effect. That does not automatically mean, however, that the other highest administrative courts will do the same. We do expect, though, that this will soon be clarified. The judgment by the Court of Justice was in fact recently invoked (20 May 2020) before the Administrative Jurisdiction Division of the Council of State (ECLI:NL:RVS:2020:1260). The appellant concerned was the Municipal Executive of the municipality of Leudal, which had itself been too late in filing a letter of appeal. Because the Municipal Executive had not plausibly established that the appeal had in fact been posted on time, the Administrative Jurisdiction Division (see Ground 5 for its Ruling) did not assess the substance of the Municipal Executive’s invocation of the judgment by the Court of Justice. We expect, however, that substantive assessment of a similar appeal will take place in the near future. In the context of legal uniformity and in view of the judgment by the Court of Justice, we assume that a change of approach by the other highest administrative courts can also be expected shortly.