Strasbourg 15 November 1999
CJ-DA-GT (99) 4
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA-GT)
2nd meeting
Strasbourg, 8 to 10 November 1999
MEETING REPORT
Document prepared by the Secretariat
Directorate of Legal Affairs
1. Opening of the meeting by Mr SILVEIRA, Chair of the CJ-DA
The meeting of the Working Party of the Project Group on Administrative Law
(CJ-DA-GT) was opened by the Chair of the CJ-DA, Mr Silveira.
The list of participants is set out in Appendix I to this report.
Mr Silveira described the background to the work on the friendly settlement of administrative disputes. The activity derived from the terms of reference of the Project Group on Administrative Law (CJ-DA) and had led to a multilateral conference in Lisbon from 31 May to 2 June 1999 at the close of which the participants had adopted conclusions. At its 12th meeting, in September 1999, the CJ-DA had instructed the CJ-DA-GT to make proposals for further action on the basis of the conclusions of the Lisbon Conference (see meeting report, document CJ-DA (99) 6).
2. Adoption of the agenda
The CJ-DA-GT unanimously adopted the agenda, as set out in Appendix II to this report.
3. Secretariat statement
The Secretariat pointed out that, in the pursuit of the activity on the friendly settlement of administrative disputes, the Lisbon Multilateral Conference on “Alternatives to litigation between administrative authorities and private parties: conciliation, mediation and arbitration” had been a ground-breaking activity for the Council of Europe because it combined an intergovernmental activity with an activity which came under the co-operation programmes. The conference proceedings would be published shortly.
As regarded the follow-up to the activity, the Secretariat drew attention to a questionnaire on alternatives to litigation in administrative disputes which had been sent to the national delegations and observer countries of the CJ-DA with a request to submit their replies by 31 December 1999. A report summarising the replies would be prepared by the Secretariat prior to the next working party meeting.
4. The CJ-DA’s programme of activities for 1999 – Alternatives to litigation between administrative authorities and private parties
a. General comments
Professor Partington presented his proposals for follow-up action on alternatives to litigation between administrative authorities and private parties, drawn from the report he had prepared for the Lisbon Conference:
“The distinctions between the common law world and the civil law world were often regarded as profound and difficult to resolve. In all the countries that were now member States of the Council of Europe, or seeking to join, similar problems arose regarding the relationship of the individual to the state.
If the Council of Europe wished to encourage further work on these topics, the following issues would seem to need further consideration:
- a development of the “typology” of disputes, which the professor had already introduced, in order that the relationship between the dispute and the appropriate mode of resolution could be more clearly perceived and properly addressed;
- a better understanding from all participating countries of the precise types of dispute that arose in each country, and current methods for their resolution;
- clearer definitions of the scope of the different forms of Alternative Dispute Resolution, while bearing in mind that many of these were still being developed and therefore that there still had to be a certain degree of flexibility in these definitions at this stage.
There would of course be different priorities at different stages of political and economic development. In no sense had there been an attempt to present a blueprint. However, some ideas had been presented about how alternatives to litigation might be developed for dealings between administrative authorities and private parties.
It was essential to investigate the context in which disputes which could be resolved by alternative means arose. There were different types of administrative dispute and the role of alternatives could vary depending on these types”.
Following these proposals, the members of the CJ-DA-GT conducted a round-table discussion during which they agreed on the need to acquire further information about forms of settlement adopted in the member states and the areas in which they were applied. In this connection, they emphasised the benefits of the questionnaire drawn up by the Secretariat and sent to all the CJ-DA delegations.
Pending the outcome of this survey, the CJ-DA-GT agreed to hold a general debate on alternatives to litigation in administrative disputes. It was stressed that though alternative methods could help to alleviate the overloading of administrative courts, under no circumstances should they exempt states from considering ways of improving the efficiency of their justice systems. These methods of settlement should serve only as complements to the administrative justice system and in no event as substitutes.
The CJ-DA-GT also stressed that the interest of private parties should be the focus of discussions on alternatives to litigation in administrative disputes.
After this general discussion, the CJ-DA-GT asked the Secretariat to prepare a working paper which could serve as the basis for following discussions. This document, with the reference code CJ-DA-GT (99) 3, is set out in Appendix III to this report. After the presentation of this document, the members agreed to concentrate on the second part which contains a list of issues to be considered regarding the alternatives to litigation between administrative authorities and private parties.
b. Definition of the concept of public administration
The CJ-DA-GT began by discussing the definition of the term “public administration” in connection with this activity, bearing in mind that the CJ-DA’s terms of reference referred to “disputes between public administration and private parties”.
It noted that there were two possible types of definition, one relating solely to the institutions involved, including the state, local and regional authorities, and public-law corporations, and the other combining both institutional and functional criteria.
The institutional definition:
By way of an example, Professor Fortsakis referred to the definition adopted by the European Union, found, among other sources, in Council Directive 93/36/EEC of
14 June 19931.
This purely institutional definition had the advantage that it was clear and universally recognised and accepted, though it was decreasingly applied in practice.
The functional definition
This definition was broader and made it possible to include bodies which did not belong to the public authorities institutionally but performed a public service task. However, this second definition did raise the question of disputes between the authorities and private parties under private law (see below). Some members noted that the functional definition had the merit of covering the situation in certain member states where services which had formerly been provided by the state were increasingly being assigned to the private sector.
The Chair pointed out that, in most of its legal instruments, the Council of Europe used the terms “authorities” or “public authorities” rather than “public administration”.
Following the discussion on this point, the CJ-DA-GT decided to keep the three following options open: (1) use the purely institutional definition; (2) adopt a more functional definition like that of the European Union, while simplifying and adapting it, or; (3) refer to “authorities” or “public authorities” instead of public administration.
c. Types of administrative dispute which can be resolved by alternative methods
The CJ-DA-GT went on to discuss the question of the types of dispute to which alternative solutions could be applied for the purposes of the activity.
It noted that disputes could be characterised according to various criteria: (1) according to the target of the complaint, ie the public authority; (2) according to the subject-matter of the proceedings, which related to the measures, actions or decisions of the authorities or the exercise of the particular rights or powers of public authorities; (3) according to the law applicable to the dispute - public or private law; (4) according to the body responsible for resolving the dispute - a body linked to the authorities or not -, and finally (5) according to the procedure used to settle the dispute.
Various possible combinations of these criteria were considered. Some members proposed combining criterion (1) - the target of the complaint - with criterion (3) - the law applicable - while others would prefer to combine criterion (1) - the target of the complaint - with criterion (4) - the body responsible for resolving the dispute.
While examining these criteria, the CJ-DA-GT also discussed whether disputes between private parties subject to public law should fall within the scope of the analysis, although, on the face of it, these types of dispute did not come under its terms of reference. It was also considered whether it would be appropriate to cover disputes between the public authorities and private parties subject to private law.
Following the discussion, the CJ-DA-GT concluded that there were two possible approaches: (i) deal with all disputes between the public authorities and private parties irrespective of whether they were subject to private or public law, or (ii) cover only certain types of dispute.
If the latter approach were chosen it was important to decide under what criteria the distinction would be made between different types of dispute. It could be decided to deal only with disputes which were subject to public law, those in which the body responsible for resolving the dispute had a link with the public authorities, or those involving an administrative measure or decision or the exercise of the particular rights of public authorities. The CJ-DA-GT agreed to take up this question again at its next meeting.
d. Types of alternative methods
A discussion was held on the types of alternatives to litigation which should be included within the scope of the analysis. Some members questioned whether it was right to cover arbitration, as the judicial nature of this method made it so different from other alternatives.
In this connection, the Chair pointed out that the participants in the Lisbon Multilateral Conference had reached the unanimous conclusion that this difference in character should not prevent arbitration from being included.
Professor Partington stressed that traditional alternatives such as conciliation, mediation and arbitration should not lead them to overlook more informal methods such as complaints to superiors or ombudsmen.
The members briefly discussed the features of traditional alternatives but noted the highly abstract nature of this discussion in the absence of precise information on the law applicable in this field in the member states. It was agreed to await the results of the questionnaire sent by the Secretariat before discussing this matter in more detail and attention was drawn to the need for a prior definition of the various methods of informal settlement.
e. Scope of alternatives to litigation
It was discussed whether alternatives to administrative litigation should only apply to cases of maladministration or relate also to disputes contesting the legality of an administrative measure or decision.
Some members expressed doubts about the possibility of alternative methods covering questions of pure legality. Professor Fortsakis in particular considered that alternative methods should only relate to cases of maladministration and that private persons should address their complaints directly to the administrative courts for disputes in which the legality of an administrative measure was at issue. Only the court could nullify the measure and contacting another body first would merely prolong the procedure.
Other members argued that it was sometimes difficult for private parties to distinguish cases of maladministration from cases of legality. Furthermore, it had been known for the authorities to realise during an alternative procedure that one of their measures was illegal and repeal it.
Finally, some members considered that alternatives to administrative litigation would become considerably less advantageous if they could not be applied to questions of legality.
After the discussion on this point, the CJ-DA-GT emphasised the fundamental nature of this question which still remained open. It was agreed to come back to it at the next meeting.
f. Advantages and disadvantages of alternatives
At the outset of the discussion on this point it was observed that the balance between the advantages and the disadvantages of alternatives depended to a certain extent on the way in which they were applied in practice.
However, it was agreed that some mention should be made of the efficiency, the speed, the economy, and the flexibility of alternative methods and the fact that they brought the authorities and private parties closer together.
Further advantages were the confidence of both parties, which was a major asset, particularly when the mediator or conciliator was chosen by them, and discretion, which was an extremely significant contributing factor to reaching a friendly settlement.
A discussion was held on the question of the expertise of the persons responsible for seeking an out-of-court settlement. Some members felt that this was not strictly speaking an advantage of alternative methods over judicial proceedings since administrative judges could always call on technical experts. As for conciliators or mediators, their negotiating skills were often greater than their technical expertise.
Finally, the group expressed a desire to add some nuance to the observation that decisions taken as a result of alternative procedures lacked authority. Among other things, this was not true of arbitration.
g. General principles which should govern alternative methods
The Working Party expressed its agreement with the principles of independence and impartiality on the part of the body responsible for the procedure and the need for a speedy decision mentioned in the working paper.
It emphasised that the principle of procedural economy should be assessed in global terms. Though certain alternative procedures such as arbitration could be costly in the short term, they were economical in the long term because they saved considerable time for the large companies that made use of them.
It was also decided to include respect for the rights of defence and equal status of the parties among the principles which should be applied to alternative procedures.
A debate was held on the principle of transparency, contrasting it with the idea of the confidentiality of proceedings. The members stressed that confidentiality was a feature of conciliation and mediation procedures and that there was no need for them to be transparent. On the other hand, the principle of transparency could be mentioned in connection with other procedures such as arbitration and complaints to the ombudsman.
The CJ-DA-GT also wished to relativise the principle that a decision be accompanied by a statement of reasons, which did not apply to cases of conciliation and mediation. The aim of this type of procedure was to reach an agreement and it was this agreement which constituted the outcome of the proceedings.
h. Follow-up
The CJ-DA-GT asked the Secretariat to prepare a working paper based on the discussions held during this meeting as well as the conclusions and reports presented at the Multilateral Conference in Lisbon and the replies to the questionnaire to be provided by the CJ-DA delegations. These documents would serve as the basis for discussion at the next meeting of the Working Party.
5. Date and place of the next meeting
Since the draft intergovernmental budget for 2000 made provision for a plenary meeting of the CJ-DA and two meetings of the CJ-DA-GT Working Party, it was decided, subject to approval of the budget, that the next meetings would be held on
3 to 5 April 2000 and 29 to 31 May 2000.
APPENDIX I
LIST OF PARTICIPANTS
BELGIUM / BELGIQUE: Mme Hrisanti PRASMAN, Conseiller adjoint au Service juridique de la Direction de la Législation et des Institutions nationales, 66, rue Royale - B-1000 BRUXELLES
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE: Mrs Taisia ČEBIŠOVÁ, Professor, Faculty of Law, Charles University, Curieovych 7 – 11000 PRAGUE 1 (Vice-Chairman of the CJ-DA/Vice-Présidente du CJ-DA)
FINLAND / FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - FIN-00131 HELSINKI
ITALY / ITALIE: M. Vittorio RAGONESI, Magistrat de la Cour de Cassation, Massimario Civile, Cancelleria, Piazza Cabour - I-ROME
PORTUGAL : M. Luis SILVEIRA, Procureur Général adjoint, Procuradoria-Geral de Republica, Palacio Palmela, R. Escola Politécnica, 1250 – 103 LISBONNE (Chairman - Président) (Chairman of the CJ-DA/Président du CJ-DA)
ROMANIA / ROUMANIE: Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction Etudes, Elaboration des actes normatifs et Documentation, Ministère de la Justice, 17 rue Apolodor, secteur 5 – BUCAREST
SWITZERLAND/SUISSE: Apologised/Excusé
RAPPORTEURS
Prof. João CAUPERS, Professeur, Faculté de droit, Universidade Nova de Lisboa – LISBONNE – PORTUGAL
Prof. Théodore FORTSAKIS, Professeur, Faculté de droit, Université nationale et Capodistrienne d’Athènes, Ippokratous, 33 ATHENES 10680 – GRECE
Dr Helmut KITSCHENBERG, Former President of the Federal Academy of Public Administration, Schweizerstrasse 18 – 53474 BAD NEUENAHR – GERMANY
Prof. Martin PARTINGTON, Pro-Vice-Chancellor, University of Bristol, Faculty of Law, Wills Memorial Building, Queens Road – BRISTOL BS8 1 RJ, UNITED KINGDOM
EUROPEAN COMMISSION/COMMISSION EUROPEENNE: Apologised/Excusé
OBSERVERS/OBSERVATEURS
HOLY SEE/SAINT-SIEGE: Mme Odile GANGHOFER, Docteur en droit, 16 rue des Pontonniers, 67000 STRASBOURG
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD)/ORGANISATION DE COOPERATION ET DE DEVELOPPEMENT ECONOMIQUE (OCDE) : Apologised/Excusé
INTERNATIONAL COMMISSION ON CIVIL STATUS/COMMISSION INTERNATIONALE DE L’ETAT CIVIL (CIEC) : Apologised/Excusé
SECRETARIAT
Division of Public and International Law, Directorate of Legal Affairs/Division du Droit Public et International, Direction des Affaires Juridiques
M. Alexey KOZHEMYAKOV, Head of the Division / Chef de la Division, Tél: 33 3 88 41 38 00, Fax: 33 3 88 41 27 64, E-mail: alexey.kozhemyakov@coe.int
M. Rafael BENITEZ, Secretary of the CJ-DA/Secrétaire du CJ-DA, Tél.: 33 3 88 41 34 79, Fax: 33 3 88 41 27 64, E-mail: rafael.benitez@coe.int
Mme Sophie MEUDAL-LEENDERS, co-Secretary of the CJ-DA/co-Secrétaire du CJ-DA, Tél: 33 3 88 41 31 74, e-mail: sophie.meudal-leenders@coe.int
Mme Francine NAAS, Assistant / Assistante, Tél: 33 3 90 21 46 00, Fax: 33 3 88 41 27 64, E-mail: francine.naas@coe.int
INTERPRETERS/INTERPRETES
Mme Sally BAILEY
Mme Danielle HEYSCH
M. Philippe QUAINE
APPENDIX II
AGENDA
Opening of the meeting by Mr SILVEIRA, Chairman of the CJ-DA
- Report of the 1st meeting of the CJ-DA-GT CJ-DA-GT (99) 1
- Draft Report of the 12th meeting of the CJ-DA CJ-DA (99) 6
Adoption of the agenda CJ-DA-GT (99) OJ 2
Statement of the Secretariat
Programme of activities of the CJ-DA for 1999: Alternatives to litigation between administrative authorities and private parties
a. Multilateral Conference on Alternatives to litigation between administrative authorities and private parties: conciliation, mediation and arbitration, Lisbon, 31 May-2 June 1999
- Proceedings of the Conference (provisional edition)
- Conclusions of the Conference
b. Follow-up to the activity
- Professor Martin Partington’s proposals CJ-DA-GT (99) 2
Date and place of the next meeting
Other business
APPENDIX III
Issues to be considered regarding alternatives to litigation between administrative authorities and private parties
1. What type of disputes? Administrative disputes, i.e.: disputes between administrative authorities and private parties
These disputes can be defined according to
- Subject: administrative authorities vs. private parties (see 2 below)
- Objet: administrative acts/decisions or in exercise of public authority. Quid of purely private acts?
- Applicable law:
- Public (administrative) law
- Private law, e.g. civil law, commercial law, etc.
2. Definition of the public administration
- Organic definition; cf. French definition: State, local authorities, public law companies or private law entities performing public services; narrower
- Functional definition; used e.g. in EU cf. “public contracts”, the crucial issue is a link with the public sector/interest/authority; larger definition
3. What types of ADRM? (Consultation, negotiation, internal review, conciliation, mediation, transaction, arbitration, ombudsman, etc.)
These can be grouped according to various criteria:
a. Formal / Informal
b. Judicial means (cf. Arbitration) / Non judicial (all others)
c. Involving only the parties concerned (cf. Internal review, consultation, negotiation) / Requiring 3rd party intervention
d. Voluntary / Compulsory
e. Preventive / Settling the dispute
4. Scope of ADRM ?
Importance of the extent of administrative discretion?
a. Maladministration / Legality
b. Facts / Law
5. Link between ADRM and judicial review (see chart 1)
- Internal review as a preliminary condition for judicial review
- Internal review in parallel to judicial review
- Do ADRM pre-empt judicial review?
6. Advantages and disadvantages of ADRM
a. Some Advantages:
- Expertise
- Efficiency
- Speediness
- Economy
- Flexibility
- Avoid antagonistic positions
- Bring the public administration closer to its citizens
b. Some disadvantages
- Lack of authority of the decision
- Weaker guarantees for the private parties → Mistrust of the private parties
Link with the advantages and disadvantages of judicial proceedings.
7. Principles which should govern ADRM
- Independence et impartiality
- Speediness
- Procedural economy
- Guarantees
- Transparency
- Statement of reasons
