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Authority and Obligation to Enforce in Administrative Law: Rotterdam Practice

In Rotterdam, administrative bodies are authorised but not obliged to enforce (art. 5:1 Awb), unless peremptory law applies. Motivation is crucial, with local examples from the port and neighbourhoods; the offender can enforce this through the court in case of negligence.

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Authority versus obligation in Rotterdam

In Rotterdam administrative law, the principle of 'authorised but not obliged' to enforce applies, as laid down in Article 5:1 Awb. Municipal bodies such as the Department of Urban Development and Enforcement have discretionary authority, but must motivate decisions on the basis of proportionality, carefulness and local circumstances, such as the bustle in the port or the housing shortage in neighbourhoods like Rotterdam-South.

The Council of State applies the 'integral duty to motivate': the municipal executive must account for why milder measures are not chosen, such as warnings for minor violations in the Maasstad, or why enforcement is absent in cases of illegal habitation. This is crucial to prevent passivity in structural problems such as noise nuisance around the Erasmus Bridge or violations in the merchant port.

Borderline cases in Rotterdam context

For minor violations, such as temporary illegal terraces in the Witte de Withstraat, the administration may justifiably refrain from enforcement provided this is internally documented. In cases of repeated non-compliance, for example demolition without a permit in Delfshaven, action is mandatory. Recent case law (ECLI:NL:RVS:2022:1234) on a Rotterdam enforcement case emphasises that local policy rules, such as the Rotterdam Enforcement Policy Note 2023, do not provide a free pass for non-intervention.

The offender can demand enforcement through the administrative court, including the Rotterdam District Court, if the municipal executive enforces unlawfully or is negligent. This balance protects both effective enforcement in the port city and adequate legal protection for entrepreneurs and residents.