22/04/99
CJ-DA-GT (99) 1
English only
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW
CJ-DA
Report on the 1st Meeting
Strasbourg, 12 April 1999
1. Opening of the meeting
The meeting was opened by the Chairman of the CJ-DA, Mr Silveira (Portugal).
2. Introduction of the participants
The Chairman introduced the participants. The list of participants appears in Appendix I.
3. Adoption of the agenda
The draft agenda appears in Appendix ll.
4. Council of Europe intergovernmental programme of activities in the field of administrative law for 1999-2000
The Secretariat explained that the work of the CJ-DA for 1999-2000 was to address the subject of friendly settlement of administrative disputes as an alternative to litigation, to enable a faster processing of cases and to unburden the courts.
The Secretariat highlighted the Committee of Ministers’ decision that, from this year, a link should be established between the Council of Europe’s co-operation programmes and its intergovernmental activities. To reflect this, the meeting was composed of members of the CJ-DA and independent or ‘special’ rapporteurs chosen by the Secretariat.
5. Preparation of the Multilateral Conference ‘Alternatives to litigation between administrative authorities and private parties : conciliation, mediation and arbitration’ (Lisbon, 31 May-2 June 1999)
The Secretariat outlined the background to the meeting, and its purpose to prepare for the forthcoming Multilateral Conference in Portugal.
General Report
The General Rapporteur clarified his role to present the introduction and conclusions, as well as to provide assistance during the Conference.
He considered that a major theme was the improvement of relations between administrative organs and private parties, which could be achieved by alternatives to litigation. However, the slowness of administrative cases was a problem in the system which should be improved rather than new methods found.
He talked about the title of the Conference, in which transaction was not mentioned. He considered this to be an important non-judicial method of dispute resolution which should not be overlooked. He described the differences between transaction (a contract which put an end to a dispute), conciliation (where a conciliator brought the two parties together but did not propose a solution) and mediation (more formal, where a mediator operated in the middle and proposed a solution). Arbitration, on the other hand, was separate in that, unlike the other methods, it was regulated by a ‘judge’.
The General Rapporteur’s task would also be to define the terms very clearly, although he urged the special rapporteurs to undertake this too.
Special Reports
The question of transaction caused much debate. In Portugal, unlike in other countries, transaction was a judicial method, where a judge decided, and was never mentioned in conjunction with conciliation or mediation. This again highlighted the language problem and the importance of clearly defining terms.
The grey area between conciliation and mediation was discussed. The Conference was considered a good opportunity to make the distinctions clear. It was decided that the themes of conciliation and mediation, despite the overlap, would be dealt with by two separate reports and that the theme of transaction, although it merited a presentation as a subject by itself, would form part of both these reports.
The system of friendly settlement before the European Court of Human Rights (ECHR) was of particular interest to the Conference in that it contained the informal elements of conciliation, mediation and transaction, but also the formal structure of a court procedure. The ECHR both encouraged friendly settlement and controlled it.
In this connection, the Working Party was informed that the President of the ECHR had designated Judge Ireneu Cabral Barreto to present this system to participants at the Lisbon Conference.
Some hesitation was expressed about the special report on solutions to citizens’ grievances in the United Kingdom in so far as too much focus would be put into a country and it would be more desirable that special reports focus in systems or models. The meeting agreed that common law countries had such a different system from civil law countries that it would be important for the Conference to examine this, the aim being to provide member States with a spectrum of solutions which could inspire them to reform. The Secretariat observed that the tribunal system in the UK should in any event be referred to because it was impressive in its very short time-limits for dealing with cases.
It was explained that under common law there was no administrative law as such, and no administrative courts. Therefore all the solutions in use were ‘alternatives’. Nevertheless, despite the common law system being alien to most other countries, practical examples of dispute resolution were believed to be helpful. It was decided to change the title of this report to, ‘Resolving citizens’ grievances : alternatives to litigation : the common law perspective’.
The Chairman stressed that the special reports should be in English or French, 10 pages in length and that they should arrive before the end of April or, at the very latest, the end of the first week of May.
National Reports
National reports will be presented by delegates at the Multilateral Conference and could address any theme of the Conference. The First Vice-Chair (Mr Niemivuo, Finland) stated that he would present the national report for Finland.
Conclusions
The Secretariat explained that the conclusions would be reached during the Conference, under the authority of the Rapporteur General and in collaboration with the special rapporteurs. These could in part be prepared in advance and finalised during the Conference, to be presented by the Rapporteur General at the end of the Conference for discussion and adoption.
6. Follow-up to the Multilateral Conference
Publication of the Conference proceedings
All reports would be published, as well as the Rapporteur General’s introduction and the conclusions.
Preparation of a preliminary-draft recommendation of the Council of Europe Committee of Ministers in the light of the Conference conclusions
The participants agreed on advising the CJ-DA to authorise continuation of the work of the working party in its composition at this meeting for the next two years, and in particular as a drafting party to assist in the possible preparation of a preliminary-draft recommendation of the Committee of Ministers, drawn up on the basis of the conclusions of the Conference.
Since the Conference was not a meeting of the CJ-DA and therefore not all its members would be present, a plenary of the CJ-DA would be held following the Conference in Lisbon, after which the working party would meet again to prepare a draft recommendation, if appropriate and agreed by the CJ-DA.
The Second Vice-Chair of the CJ-DA (Mrs Čebišová, Czech Republic) expressed concerns for the Countries in transition, where control of the administration was being reintroduced and where ‘hard law’ was preferred over softer methods. Very little information was available in these countries on the themes of the Conference. It also raised practical questions of the conditions for introducing such methods, training of officials, and guarantees against misuse, which would need to be addressed at the Conference. She stressed that any recommendation must be suitable for all countries.
7. Other business
Following a discussion on the French title of the Conference, it was decided to change this to ‘Les solutions alternatives aux litiges entre les autorités administratives et les personnes privées: (…)’.
The Secretariat outlined the practical details of accommodation in Lisbon and travel.
The Chairman thanked the participants and closed the meeting.
APPENDIX l
List of participants
Professeur João CAUPERS, Faculté de droit, Universidade Nova de Lisboa, LISBONNE, PORTUGAL,
Ms Taisia ČEBIŠOVÁ, Second Vice-Chair of the CJ-DA/Deuxième Vice-présidente du CJ-DA, Faculty of Law – Charles University, Právnická fakulta UK, Curievových 7, 11000 PRAHA 1, CZECH REPUBLIC
Monsieur Jean-Paul COSTA, Juge à la Cour européenne des Droits de l’Homme, Palais des Droits de l’Homme, 67075 STRASBOURG Cedex, FRANCE
Professeur Pierre DELVOLVÉ, Responsable de l’Ecole doctorale de droit public interne, Faculté de droit, Université de Paris II, Adresse privée: 5, rue de Luynes, 75007 PARIS, FRANCE
Professeur Théodore FORTSAKIS, Faculté de droit, Université Nationale et Capodistrienne d'Athènes, Ippokratous 33, ATHENES 10680, GRECE, Tel. 30.1.3638454 - Adresse privée, 52 rue Skoufa, 10672 ATHENES, GRECE
Dr Helmut KITSCHENBERG, Former President of the Federal Academy of Public administration, Schweizerstrasse 18, D-53474 BAD NEUENAHR, GERMANY
Mr Matti NIEMIVUO, First Vice-Chair of the CJ-DA/Premier Vice-Président du CJ-DA, Director of Legislation, Ministry of Justice, Eteläesplanadi 10, 00131 HELSINKI, FINLAND
Professor Martin PARTINGTON, Pro-Vice-Chancellor, University of Bristol, Faculty of Law, Wills Memorial Building, Queens Road, BRISTOL BS8 1 RJ – UNITED KINGDOM
Monsieur Luis SILVEIRA, Chair of the CJ-DA/President du CJ-DA, Procureur général adjoint de la République, Palacio Palmela, R. Escola Politécnica, LISBONNE, PORTUGAL
SECRETARIAT
Directorate of Legal Affairs/Direction des affaires juridiques
F – 67075 STRASBOURG Cedex
Mr Alexey KOZHEMYAKOV, Head of the Division of Public and International Law/Chef de la division de droit public et international, Tel. 33.3.88413800 - Fax 33.3.88412764 - E-mail: alexey.kozhemyakov@coe.fr)
Mr Rafael A. BENITEZ, Secretary of the CJ-DA/Secrétaire du CJ-DA, Division of Public and International Law/Division de droit public et international, Tel. 33.3.88413479 - Fax 33.3.88412764 - E-mail: rafael.benitez@coe.fr)
Ms Camilla TESSENY, Administrative Officer/Administrateur, Unit for co-operation programmes/Unité pour les programmes de coopération, Tel. 33.3.88413029 - Fax 33.3.88412764 - E-mail: camilla.tesseny@coe.fr)
Ms Francine NAAS, Assistant/Assistante, Division of Public and International Law/Division de droit public et international, Tel. 33.3.90214600 - Fax 33.3.88412764 - E-mail: francine.naas@coe.fr)
APPENDIX II
Agenda
1. OPENING OF THE MEETING BY THE CHAIRMAN OF THE CJ-DA, MR SILVEIRA
2. INTRODUCTION OF PARTICIPANTS: BUREAU OF THE CJ-DA AND RAPPORTEURS OF THE MULTILATERAL CONFERENCE ON "ALTERNATIVES TO LITIGATION BETWEEN ADMINISTRATIVE AUTHORITIES AND PRIVATE PARTIES: CONCILIATION, MEDIATION AND ARBITRATION" (LISBON, 31 MAY-2 JUNE 1999)
3. ADOPTION OF THE AGENDA
4. COUNCIL OF EUROPE INTERGOVERNMENTAL PROGRAMME OF ACTIVITIES IN THE FIELD OF ADMINISTRATIVE LAW FOR 1999-2000: CJ-DA ACTIVITY ON "PEACEFUL SETTLEMENT OF DISPUTES BETWEEN ADMINISTRATIVE AUTHORITIES AND PRIVATE PARTIES "
5. PREPARATION OF THE MULTILATERAL CONFERENCE "ALTERNATIVES TO LITIGATION BETWEEN ADMINISTRATIVE AUTHORITIES AND PRIVATE PARTIES: CONCILIATION, MEDIATION AND ARBITRATION" (LISBON, 31 MAY-2 JUNE 1999):
- GENERAL REPORT
- SPECIFIC REPORTS
- NATIONAL REPORTS
- CONCLUSIONS
6. FOLLOW-UP TO THE MULTILATERAL CONFERENCE "ALTERNATIVES TO LITIGATION BETWEEN ADMINISTRATIVE AUTHORITIES AND PRIVATE PARTIES: CONCILIATION, MEDIATION AND ARBITRATION" (LISBON, 31 MAY-2 JUNE 1999) IN THE LIGHT OF ITEM 3
- PUBLICATION OF THE CONFERENCE PROCEEDING
- PREPARATION OF A PRELIMINARY-DRAFT RECOMMENDATION OF THE COUNCIL OF EUROPE COMMITTEE OF MINISTERS IN THE LIGHT OF THE CONFERENCE CONCLUSIONS IF APPROPRIATE AND AGREED BY THE CJ-DA (PRELIMINARY EXCHANGE OF VIEWS)
7. OTHER BUSINESS
