According to established case law (inter alia, ABRvS 16 February 2005, ECLI:NL:RVS:2005:AS6225), circumstances can only be deemed exceptional if they were not taken into account when the policy rule was formulated and when strict adherence to the policy rule could lead to an unintended result.

In a decision dated 26 October 2016 (ABRvS 26 October 2016, ECLI:NL:RVS:2016:2840), the Administrative Law Division of the Dutch Council of State held – contrary to its previous stance – that circumstances that were taken into account, or must be considered as having been taken into account, when a policy rule was formulated therefore cannot simply be ignored.

In practice, it has been shown that even if the relevant administrative body has taken these circumstances into account when formulating the policy rule, it cannot have determined whether these circumstances – either collectively or individually – would still lead to an unintended result. The administrative body must therefore take all of the circumstances of a case into consideration when making a decision and must examine whether these circumstances – either collectively or individually – must be considered exceptional circumstances as meant in Section 4:84 of the Dutch General Administrative Law Act [Awb] such that acting in accordance with the policy rule would lead to a result that would be disproportionate given the goals the policy rules are intended to achieve.

It is therefore up to the administrative body in the first instance (and not the court) to answer the question of whether, considered in conjunction with one another, the relevant circumstances could lead to the conclusion that the circumstances are exceptional.