First Conference of the Presidents of Supreme Administrative Courts in Europe

“The possibility and scope of the judicial control of administrative decisions”

7-8 October 2002, Strasbourg

CONCLUSIONS

The first Conference of Presidents and judges of Supreme Administrative Courts in Europe was held in Strasbourg on 7-8 October 2002. The theme of the Conference was “The Possibility and Scope of Judicial Review of Administrative Decisions in the Member States”. This Conference was organised by the Council of Europe within the framework of the co-operation programme to strengthen the rule of law, in co-operation with the Project Group on Administrative Law (CJ-DA).

Participants welcomed this initiative, in that it provided a useful forum for exchange of ideas between judges dealing with administrative cases. They expressed the wish that similar conferences be organised in the future, on topics of common interest.

Participants held discussions based upon the reports presented to them and, at the close of proceedings, adopted the following

CONCLUSIONS

Judicial review of administrative action is an essential element of the rule of law and human rights which are concepts that are central to the legal orders of Council of Europe member States.

All administrative acts should be subject to judicial review. This review applies to the exercise of discretionary power. No exception applies to administrative silence, or inaction. In some legal systems, administrative sanctions may be imposed, involving among others the imposition of a fine or imprisonment, by a public official for regulatory or other minor offences. In all cases, these sanctions should be subject to judicial review.

Other methods of reviewing administrative acts, which may include internal review within the administration and reliance upon the institution of the ombudsman, are complementary to judicial review. These other methods, as well as the use of alternative means of resolving disputes, can also help to relieve the excessive workload of courts and therefore should be encouraged, in accordance with Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties.

The organisation of judicial review and of the other means of reviewing the action of administrative authorities, as well as the combination of these means, varies greatly among member States, depending upon their historical and legal traditions. Judicial review may be exercised by special administrative courts or tribunals or by the ordinary courts, or by a combination of the two. Similarly, the remedies available for judicial review may be tailor-made or remedies that are available generally, or both.

Regardless of these organisational differences, judicial review of administrative acts should follow common standards to be found in the legal systems of member states or the procedural guarantees directly derived from the European Convention on Human Rights, notably Articles 6 and 13.

Judicial review should be widely accessible to natural and legal persons. This requires in particular that fees are not set at a level that discourages applications. If necessary, an appropriate system of legal and financial aid should be provided.

The independence and impartiality of the court exercising judicial review should be guaranteed. Independence can be guaranteed, as foreseen in Recommendation (94) 12 on the independence, efficiency and role of judges, by recruiting a sufficient number of judges, security of tenure, providing adequate training and appropriate support staff and equipment. Appropriate status and remuneration, commensurate with the dignity of the profession and burden of responsibilities, can also reinforce the judges’ authority and prestige, and thereby help ensure that their judgments are implemented, particularly by administrative authorities.

Judicial review should respect and ensure the procedural fair hearing guarantees of Article 6(1), including in general access for the parties to the administrative file. Judicial review should occur within a reasonable time and include a public hearing.

The court should have competence to examine all the factual and legal issues relevant for the consideration of the case subject to review.

Judicial review should be effective. This requires that the court has power to adopt provisional measures of protection pending the outcome of the review. If the application for review is successful, the court should be competent to prohibit the taking of an administrative decision, to quash a decision that has already been taken, or to require that a duty be performed. The court should also have jurisdiction to award compensation in appropriate cases.

It is an important aspect of the right to a court that decisions of the court are implemented. The court should have appropriate powers, such as the power to sanction the administrative authority, to ensure that this occurs.

The participants noted that the European Convention on Human Rights was originally not meant to be applied to administrative litigation. The case-law of the European Court of Human Rights partly remedied this situation and the participants expressed the wish that it follow on these lines.

The participants agreed on the value of pursuing the consideration of the judicial control of administrative acts and supported the implementation of the activity in this field by the Project Group on Administrative Law (CJ-DA) of the Council of Europe.

The participants expressed their thanks to the rapporteurs for their contributions and to the Council of Europe for the excellent organisation of the Conference.