THE BOTTOM LINE
- Hidden rules are illegal: Public funding bodies cannot apply significant assessment criteria—like excluding an entire major city from scoring—if those rules were not published before the application deadline. This violates the principle of legal certainty.
- Expert advice must be consistent: Decision-makers relying on advisory reports are at risk if the advice is internally inconsistent. Praising an applicant’s innovation for one criterion but ignoring it for another can render the final decision unlawful.
- Clarity in grant applications remains key: While the Fund’s process was flawed, the court upheld the committee’s negative assessment on one point where the applicant’s plan was deemed too vague, showing that the burden of proof remains on the applicant to be explicit.
THE DETAILS
A recent ruling by the Midden-Nederland District Court offers a sharp lesson for any organization applying for competitive public grants or subsidies. The court overturned the Dutch Performing Arts Fund‘s decision to deny a multi-year subsidy to the acclaimed musical ensemble, Holland Baroque. The judgment wasn’t about artistic merit but rather about procedural fairness and transparency—issues that resonate far beyond the arts sector. The case underscores that public bodies have a strict duty to ensure their decision-making processes are clear, consistent, and communicated in advance.
The court identified a critical flaw in how the Fund assessed geographical spread. To ensure performances reached audiences across the country, the Fund scored applicants on the regional distribution of their concerts. However, only after all applications were submitted did the Fund decide that performances in Amsterdam—the country’s largest market—would not count. The court found this “hidden rule” to be a clear breach of legal certainty. Applicants had prepared their plans based on the published rules; had they known that a major hub was excluded, they might have structured their activities and applications differently. The ruling affirms that substantive rules of the game cannot be changed after the game has started.
Furthermore, the court scrutinized the internal logic of the advisory committee’s report, which formed the basis of the Fund’s decision. The committee gave Holland Baroque a low score on its significance for the Dutch performing arts, arguing its activities were not sufficiently distinctive. The court found this reasoning inconsistent. The very same report had praised the ensemble’s innovative, cross-genre collaborations under the artistic quality criterion. The court ruled that this key innovative aspect could not be celebrated in one part of the assessment only to be ignored in another. This serves as a reminder that the reasoning behind a decision must be coherent and holistic, as inconsistencies can expose an otherwise defensible decision to legal challenge.
SOURCE
Source: Rechtbank Midden-Nederland
