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    In judicial review of decisions of administrative authorities courts generally aim towards grounding a judgment on substantively true facts. Such a substantive truth is usually understood as meaning ’that which happened’. But how can true facts be established if the facts have not yet occurred and what implications does this have for judicial review in administrative procedures? In this article this question will be analysed by taking the Dutch Administrative Court’s review of merger decisions of the Dutch Competition Authority - using a substantively close copy of the European merger control assessment framework - as subject of analysis. Judicial review of the substantive assessment in merger control, including the prospective analysis involved and taking into account complexities of economic evidence, will be analyzed and set against the general aim of establishing substantive truth of facts.


Anna Dr. Gerbrandy Ph.D.
Dr. Anna Gerbrandy is associate professor in Public Economic Law at the Europa Institute, Utrecht University.

    If two or more educational institutions intend to merge, such institutions must obtain approval from the Minister of Education prior to merging in accordance with the “Educational Merger test Act” (Wet fusietoets onderwijs) which came into force on 1 October 2011. Since then, further to the implementation of the Educational Merger test Act, the Minister of Education has taken several decisions on merger requests from educational institutions. Prior to delivering a decision on a merger request the Minister of Education is advised by its advisory committee ("Adviescommissie fusietoets onderwijs"). This article describes and analyses the legal framework put into place be the Educational Merger test Act. It further analyses the functioning of the Act in its first year of existence and proposes solutions for problems found. The article in this respect focuses on the advice of the advisory committee.


T. Barkhuysen
Tom Barkhuysen is advocaat-partner bij Stibbe te Amsterdam en hoogleraars Staats- en bestuursrecht aan de Universiteit Leiden

Machteld Claessens
Machteld Claessens is advocaat bij Stibbe te Amsterdam.

    The legislator deliberately created a more restrained compensation duty for the legal costs made in the objection procedure, than for the costs made in the appeal procedure. According to article 7:15 of the Dutch General Administrative Law Act, solely the legal costs made in the objection procedure are reimbursed at the request of the stakeholder, as far as the contested decision is revoked by reason of the tort due to the administration. The administration decides on this request when deciding on the objection. There are several disadvantages to this. That is particularly the case, when the stakeholder has lost his interest in the revocation of the contested decision during the procedure, and he solely wants his costs, made in the objection procedure, reimbursed. This raises the question of whether it would be better to regulate the legal costs made in the objection procedure in the same way as the legal costs made in the appeal procedure.


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