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Authority and Obligation to Enforce in Administrative Law: Amsterdam Practice

In Amsterdam, administrative bodies have the authority but not the obligation to enforce (Art. 5:1 Awb), unless mandatory law applies, such as in cases of illegal rentals. Justification is crucial; offenders may compel this through the courts, taking into account local pressures and policy.

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Authority versus Obligation in Amsterdam

In Amsterdam's administrative law, the principle of 'authority but no obligation' to enforce applies, as confirmed in Article 5:1 of the General Administrative Law Act (Awb). The Municipality of Amsterdam, as an administrative body, possesses discretionary authority but must justify its decisions based on proportionality, due care, and local circumstances, such as the high pressure on the housing market and tourism-related nuisances in the city center.

The Council of State applies the 'comprehensive duty to provide reasoning': the Amsterdam administration must explain why milder measures, such as warnings for illegal rentals in the canal district, are not chosen, or why enforcement is omitted for minor offenses in De Pijp. This prevents passivity in addressing structural issues like noise pollution during nighttime hours around Leidseplein.

Borderline Cases in the Amsterdam Context

For minor offenses, such as temporary bicycle parking on the sidewalk in Oost, inaction may be justified provided it is internally documented. In cases of repeated non-compliance, such as illegal hotels in the Jordaan, enforcement is mandatory. Jurisprudence (ECLI:NL:RVS:2021:567) and local rulings by the Amsterdam District Court emphasize that the Amsterdam Enforcement Policy 2023 does not grant a license for inaction.

An offender may demand enforcement through the administrative court if the municipality enforces unlawfully or is negligent, for example, in delaying fines for violations of the General Local Bylaw (APV) in Vondelpark. This balance ensures both effective enforcement and legal protection in the vibrant metropolis of Amsterdam.