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Rowie Stolk on individual companies being targeted in test cases

Interest group Animal Rights has started a test case to prompt the Netherlands Food and Consumer Product Safety Authority (NVWA) to tackle farmers who do not adequately protect their livestock against wolves. The test case concerns a rejected enforcement request to the NVWA. In it, the NVWA were called to take action against sheep farmer Stefan Worst from the Dutch village Vledder, whose sheep have fallen victim to wolf attacks multiple times.

The NVWA wants to give farmers more time to deal with the new phenomenon of wolves in the Netherlands. However, according to Animal Rights, not enough is being done and the clock is ticking. Hilbrand Polman, a political reporter from regional newspaper Dagblad van het Noorden, wrote an opinion piece on this issue. For his piece, he talked to Rowie Stolk, from the Department of Constitutional and Administrative Law and research platform ELS@Leiden, who is currently researching interest group litigation.

Although from a legal perspective, the Animal Rights’ administrative proceedings are directed at the NVWA, it is done via an enforcement request directed at a targeted sheep farmer. Indeed, Animal Rights mentions the individual sheep farmer by name in their news item announcing the test case on their website. According to Dagblad van het Noorden, the sheep farmer had to hear via a journalist that his business was the target of the test case. Reporter Hilbrand Polman wonders whether this should be possible and whether such legal proceedings do not just contribute to polarisation and declining support for judicial outcomes and European rules.

Rowie Stolk explains that within administrative law, such ‘test cases’ are a common phenomenon. This is partly due to the type of government action that is subject to administrative law appeals. Now that general rules are exempt from appeal to the administrative court, an interest group such as Animal Rights cannot directly litigate against the NVWA over its enforcement policy, but must look for a specific individual case and file an enforcement request for them. If the NVWA then refuses to enforce, it will result in a decision that can be appealed before the administrative court. Such ‘constructions’ are not new. Cases involving nitrogen emmissions, for example, also targeted individual farms. Interest groups such as Mobilisation for the Environment cannot directly initiate proceedings concerning the Dutch nitrogen policy. Instead, they do this through individual enforcement requests or permits under the Environment and Planning Act granted to the individual companies.

This can cause individual companies much tension and insecurity. Meanwhile, such legal proceedings often appear to be the only option for organisations that stand up for ‘voiceless’ interests (such as those of plants and animals) if they cannot gain a foothold in the political and administrative decision-making process. Litigation can then be used as an important potential sanction when the government itself does not comply with the law. Although litigation can accomplish a lot in terms of safeguarding the legal rights of those voiceless interests, Stolk highlights the risks of a backlash. Counter-movements may arise and opponents may learn the art of litigation. One example is the rise of the BoerBurgerBeweging (the Dutch Farmer-citizen Movement) or the case of Milieudefensie v Royal Dutch Shell, which has now been joined by another interest organisation that stands up for the interests of all Dutch citizens concerning available and affordable energy. In short, interest organisations need to consider each issue and weigh the advantages and disadvantages of using litigation as a strategy.

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