Strasbourg, 15 May 2000
CJ-DA-GT (2000) 3
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
WORKING PARTY OF THE PROJECT GROUP
ON ADMINISTRATIVE LAW
(CJ-DA-GT)
3rd meeting
Strasbourg, 10-12 April 2000
MEETING REPORT
Secretariat Document prepared by the
Directorate General of Legal Affairs
1. Opening of the meeting by Mr Niemivuo, Chairman of the CJ-DA
The meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT) was opened by Mr Niemivuo, Chairman of the CJ-DA.
The list of participants is set out in Appendix I to this report.
Mr Niemivuo welcomed the delegate from Andorra, who was attending a meeting of the CJ-DA-GT for the first time.
2. Adoption of the agenda
The CJ-DA-GT unanimously adopted the agenda, as appended to this report in Appendix II.
3. Statement by the Secretariat
The Secretariat announced that the Proceedings of the multilateral Conference in Lisbon on "Alternatives to litigation between administrative authorities and private parties: conciliation, mediation and arbitration" had been published in their final form.
At its 699th meeting Deputies level, on 24 February 2000, the Committee of Ministers of the Council of Europe had adopted Recommendation R (2000) 6 on the status of public officials in Europe, prepared by the Project Group on Administrative Law (CJ-DA), and authorised the publication of its explanatory memorandum.
The Secretariat then presented the South-eastern Europe Forum for administrative reform and development to be held in Thessaloniki, Greece, on 10, 11 and 12 May 2000. The Council of Europe was organising this Forum under the Stability Pact for South-eastern Europe, in collaboration with the Hellenic Institute of Administrative Sciences and the Greek Government. It would bring together the Council of Europe's member states and candidates for accession, as well as the partner organisations within the Pact, and would serve to take stock of administrative reform in the countries of South-eastern Europe with a view to proposing appropriate follow-up.
4. Programme of activities of the CJ-DA for 2000: Alternatives to litigation between administrative authorities and private parties
a. Summary report on alternatives to litigation between administrative authorities and private parties
The Secretariat introduced the summary report on alternatives to litigation between administrative authorities and private parties, which had been prepared on the basis of replies to the questionnaire the Secretariat had sent out to the members and observers of the CJ-DA, and also of the national reports presented at the Lisbon Conference.
Some delegations voiced their intention, in the light of the report, to submit some additions to their replies in writing. The Czech Republic delegation explained that administrative reform was gathering momentum in the Czech Republic and that several important laws had been scheduled for adoption by the Czech Parliament early in 2000; it had hoped to reflect the main gist of these laws in its reply. As this legislative process had fallen behind schedule, however, the delegation's reply to the questionnaire would no doubt have to be updated.
Several delegations felt that the part of the report concerning the Ombudsman was worth developing. They reasoned that even if other results of the Group's present activity could not cover the Ombudsman because this was a matter for other Council of Europe committees, the report should aim to present a faithful picture of the situation concerning alternatives to administrative litigation in Europe, and the Ombudsman played an important role in this respect.
The CJ-DA-GT also asked the Secretariat to add to the report a brief conclusion highlighting what had been learnt from the replies to the questionnaire.
b. Preliminary Draft Recommendation of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties
The Secretariat presented a preliminary draft Recommendation of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties, prepared on the basis of the discussions that had taken place at the previous meeting, which the CJ-DA-GT examined in a first reading.
The CJ-DA-GT decided to replace the word "solutions" in the French text by "modes".
The Portuguese delegate wondered if it was wise in the eighth preambular paragraph to mention the fact that alternative means should respect the rights of the defence; while this was evident in the case of arbitration, the principle did not apply to the same degree to conciliation and mediation.
The CJ-DA-GT then examined the Appendix to the preliminary draft recommendation and exchanged views on which means the text should cover. The main alternatives should be listed in order of increasing participation by third parties in the procedure, and it should be made clear that the list was not exhaustive.
The CJ-DA-GT resumed the debate initiated at its previous meeting on the confidentiality of the alternative means, which was an important argument in favour of using such alternatives but had to be balanced with the simultaneous need for transparency.
The CJ-DA-GT asked the Secretariat to add a paragraph on consultation and dialogue to the part of the Appendix concerning the special features of each alternative method, drawing on the conclusions of the multilateral Conference in Lisbon.
Professor Fortsakis suggested mentioning in the paragraph of the Appendix concerning internal review, that this method could also concern the payment of an indemnity, even if this was not its traditional definition. Following an exchange of views, the CJ-DA-GT agreed to include this suggestion for the time being and to re-examine it at the second reading of the preliminary draft.
The CJ-DA-GT then discussed the question of the suspension of the effects of an administrative act following an application for internal review. Although this measure was undeniably justified in certain cases, excessive use of it could block the machinery of the administration. Having discussed the issue, it decided to mention this measure as a possibility and to re-examine the subject during the second reading.
After discussing this item, the CJ-DA-GT adopted the preliminary draft Recommendation of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties in first reading and asked the Secretariat to prepare a draft explanatory report to the preliminary draft Recommendation for examination at its next meeting.
5. Date and place of next meeting
The CJ-DA-GT agreed to hold its next meeting from 3 to 5 July 2000.
6. Other business
The CJ-DA-GT exchanged views on the membership of the Working Party with a view to the next meeting. It felt that its composition should reflect the intergovernmental dimension more extensively, in order to obtain the broadest possible consensus among the member states on the preliminary draft Recommendation when the text was adopted by the CJ-DA-GT.
It should be left to the Chair and Vice-Chairs, in consultation with the Secretariat, to determine the composition of the CJ-DA-GT for the next meeting. As far as possible its composition should reflect the broad tendencies found in Europe's legal systems and privilege those states which, by their presence at the previous meetings, had shown a particular interest in this activity of the CJ-DA.
APPENDIX I
LIST OF PARTICIPANTS
ANDORRA / ANDORRE : M. Pere PASTOR, Juge, Consell Superior de la Justicia, c/Prat de la Creu n° 8, 3er pis - ANDORRA LA VELLA
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 / Vice-Présidente)
FINLAND / FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - 00131 HELSINKI (Chairman - Président)
GEORGIA / GEORGIE: Apologised/Excusé
ITALY / ITALIE: Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, Via Arenula – I-00186 ROME – (Vice-Chairman / Vice-Président): Apologised/Excusé
PORTUGAL: M. Luis SILVEIRA, Procureur Général adjoint, Procuradoria-Geral de República, Rua Escola Politécnica, n° 140 - 1250 LISBONNE
ROMANIA / ROUMANIE: Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction Etudes, Elaboration des actes normatifs et Documentation - 17, rue Apolodor, secteur 5 – BUCAREST
SLOVENIA / SLOVÉNIE: Mr Samo GODEC, Counselor to the Minister, Ministry of Interior, Administrative Academy, Kotnikova 8, SLO-1000 LJUBLJANA
SWITZERLAND / SUISSE: Apologised/Excusé
RAPPORTEURS
Dr Joao CAUPERS, Professor, Universidade Nova de Lisboa, Rue do Carmo 31, 5° B - 1200 LISBOA: Apologised/ Excusé
M. Pierre DELVOLVÉ, Responsable de l’Ecole doctorale de droit public interne, Faculté de Droit, Université de Paris II, 5, rue de Lyunes - 75007 PARIS
M. Th. FORTSAKIS, Professeur, Faculté de Droit, 52, rue Skoufa - 10672 ATHÈNES
Dr Helmut KITSCHENBERG, President of the Federal Academy of Public Administration ret., Schweizerstrasse 18, D-53474 BAD NEUENAHR: Apologised/ Excusé
Mr Martin PARTINGTON, Professor, Pro-Vice Chancellor, University of Bristol, Wills Memorial Building, Queens Road - BRISTOL BS87 1 RJ : Apologised/Excusé
SECRETARIAT
DIRECTORATE GENERAL OF LEGAL AFFAIRS/ DIRECTION GENERALE DES AFFAIRES JURIDIQUES
DEPARTMENT OF PUBLIC LAW / SERVICE DU DROIT PUBLIC,
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
Mme Janine LAURENT, Assistant / Assistante, Tel: 33 3 88 41 4704 – Fax 33 3 88 41 2764 – E-mail: janine.laurent@coe.int
APPENDIX II
AGENDA
1. Opening of the meeting by Mr NIEMIVUO, Chairman of the CJ-DA
- Report of the 2nd meeting of the CJ-DA-GT CJ-DA-GT (99) 4
- Report of the 12th meeting of the CJ-DA CJ-DA (99) 6
2. Adoption of the agenda CJ-DA-GT (2000) OJ 1
3. Statement of the Secretariat
4. Programme of activities of the CJ-DA for 2000: Alternatives to litigation between administrative authorities and private parties
- Summary report on alternatives to litigation between administrative authorities and private parties CJ-DA-GT (2000) 1
- Preliminary Draft Recommendation of the Committee of Ministers on alternatives
to litigation between administrative authorities and private parties CJ-DA-GT (2000) 2
5. Date and place of the next meeting
6. Other business
