Strasbourg, 6 July 2000
CJ-DA-GT (2000) 5
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
WORKING PARTY OF THE PROJECT GROUP
ON ADMINISTRATIVE LAW
(CJ-DA-GT)
4th meeting
Strasbourg, 3-5 July 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 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 new delegate from Andorra and the delegate from Ireland, who were 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 thanked Professor Delvolvé for having agreed to act as scientific expert to the CJ-DA-GT for the continuation of the activity, and announced that he would participate in the next meeting of the Project Group on Administrative Law (CJ-DA) in that capacity.
4. Programme of activities of the CJ-DA for 2000 - Alternatives to litigation between administrative authorities and private parties
a. Preliminary draft Recommendation of the Committee of Ministers on alternatives o 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, which had been revised following the working party's discussions at its previous meeting (Strasbourg, 10-12 April 2000) and which the members of the CJ-DA-GT examined at a second reading.
The members of the CJ-DA-GT discussed the following points:
Definition of the alternatives
As some of the terms used had different connotations in different countries, the CJ-DA-GT agreed to remedy this difficulty by adding, at the top of the appendix to the recommendation, definitions of the alternatives to litigation dealt with in the body of the text, referring in particular to the definitions employed at the multilateral conference held by the Council of Europe on the subject (Lisbon, 31 May to 2 June 1999).
Prevention of disputes
The CJ-DA-GT held a comprehensive exchange of views as to whether consultation and negotiation, chiefly methods of preventing disputes, needed to be considered in the appendix to the recommendation.
Some delegations felt that, since the principal aims of the recommendation were to help relieve congestion in State courts and bring administrative authorities closer to the public, prevention of disputes, conducive to these aims, was an aspect not to be left out of account. Others, together with the scientific expert, considered that as alternatives to litigation formed the actual subject of the recommendation it would be inexpedient, for reasons of coherence, to deal with means of prevention. Some delegates also pointed out that consultation and negotiation were not the only means of preventing disputes and that it was not advisable make specific provision for them.
The CJ-DA-GT finally decided to include the references to consultation and negotiation in a footnote to the appendix and to leave it open to the plenary meeting of the CJ-DA to decide on this point. It agreed that the explanatory report to the recommendation would in any case mention the preventive aspects and that the recommendation itself should only cover the situations where a dispute had arisen, the demarcating criterion being the adoption of an administrative act or decision.
This re-introduced the issue regarding some of the aforementioned preventive methods, particularly consultation and negotiation which might follow the adoption of the contested act or decision and could therefore be regarded as means of resolving disputes. However, some delegations observed that in the case considered, the outcome of consultation and negotiation was a settlement ending the dispute; consequently, they should appear under that item in the appendix.
Confidentiality of alternative means
Some delegations expressed doubts over the advisability of mentioning the confidentiality of alternative means in the paragraph of the appendix concerning their regulation, considering that the preamble to the recommendation already mentioned "less publicity" among their advantages. Those delegations pointed out that confidentiality could be only de facto and not de jure since administrative authorities were bound by the principles of legal propriety and transparency. The CJ-DA-GT concluded the debate on this point by deciding to maintain the reference to a certain amount of confidentiality on the ground that it was one of the major reasons for having using certain alternatives to litigation.
Review of alternative means by State courts
During an exchange of views on review of alternative means by State courts, some delegations contended that the extent of court review was not the same in each instance. In certain cases it would be confined to verifying compliance with procedural principles and absence of abuses, while in others it might concern the actual merits of the dispute. Furthermore, review was not the sole, albeit the most the most important, aspect of the State courts' role in respect of alternatives to litigation.
The CJ-DA-GT accordingly agreed to use the expression "role of State courts" in the preamble to the recommendation, and to consider the question of review in the part of the appendix concerning the relationship with State courts.
Suspension of the execution of the contested administrative act
The CJ-DA-GT discussed the possibility of suspending a contested administrative act in the context of an alternative to litigation, and agreed that this should be encouraged in the recommendation.
Given that the bodies or persons responsible for the alternative procedure lacked the authority to order suspension, there arose the question of who had the capacity to do so. The members of the CJ-DA-GT were unanimous in attributing this capacity to the law or to a State court even if it was not required to entertain the dispute, but debated whether the same would be possible for an administrative authority, whether the one ordering the contested act or another competent authority. Some delegations felt that it would be out of place to assign this capacity to an administrative authority, because it could withdraw or annul the act in question. Other delegations argued that the power to suspend an administrative act was secured to certain administrative authorities under their national law, particularly in fiscal matters. The CJ-DA-GT accordingly decided to use the term "competent authority" in the relevant provision of the appendix.
Suspension of time-limits for commencing proceedings before a court
The CJ-DA-GT discussed whether suspension of time-limits for commencing proceedings before a court should be specified for the application of all, or only some, of the alternative means. The main question for certain delegations was the extent to which suspension should be made possible in the event of recourse to settlement or arbitration.
Following discussion, the CJ-DA-GT decided to define this possibility as broadly as possible in the appendix as being intended to apply in principle to all the alternatives means, in order to encourage member States to make similar provisions in their legislation. It was agreed on the other hand to mention that the law should stipulate reasonable, mandatory time-limits for the conclusion of alternative procedures in order to avert any needless delay in bringing proceedings before a court.
Conciliation and mediation
The CJ-DA-GT discussed the field of application of these methods. It noted that conciliation and mediation seemed most appropriate to the sphere of discretionary administrative activities, although their use should not be restricted to it. They could in fact be very useful in cases where the power of the administration was fettered, as for example in fiscal matters, while of course not forgetting those instances where administrative activities were subject to private law. It was therefore advisable to specify that consultation and mediation should be applicable to all aspects of administrative activity.
The CJ-DA-GT also discussed the effect which a successful conciliation and mediation procedure could have on the grounding of the contested administrative act, and especially the question whether the administrative authority's acceptance of a solution reached by this expedient could adequately meet the obligation to state grounds for the act. It was felt that this possibility ought not to be mentioned, in view of the fact that a conciliation or mediation procedure could not be raised against third parties.
Arbitration
The CJ-DA-GT exchanged views on the institution of compulsory arbitration and agreed that while it was not to be encouraged, the principles governing this alternative should nonetheless be formulated broadly enough to cover those countries where the institution existed.
Following discussion of this point, the CJ-DA-GT adopted at the second reading the preliminary draft Recommendation of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties, and agreed to transmit it to the CJ-DA for adoption.
b. Draft explanatory memorandum to the Recommendation of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties
The Secretariat presented a draft explanatory memorandum to the Recommendation of the Committee of Ministers on alternatives to litigation between administrative authorities and private parties, prepared on the basis of the discussions held at the 2nd and 3rd meetings of the CJ-DA-GT and the reports presented at the multilateral conference in Lisbon, the general report in particular.
The CJ-DA-GT expressed its approval of the general structure of the draft, and asked the Secretariat to make the changes necessitated by discussions at the current meeting and any contributions which delegations might wish to submit in writing by 18 August 2000.
Since the CJ-DA-GT would be unable to examine the revised version of the draft explanatory memorandum, the working party agreed to forward it directly to the CJ-DA.
c. Summary report on alternatives to litigation between administrative authorities and private parties
The Secretariat presented a revised version of the summary report on alternatives to litigation between administrative authorities and private parties comprising further replies and additions to replies made by certain delegations in the light of the initial version of the report, together with a new section on the Ombudsman institution added pursuant to the decision of the CJ-DA-GT at its previous meeting.
Delegations were invited to inform the Secretariat in writing of any proposed alterations by 18 August 2000, with a view to finalising the report.
The CJ-DA-GT agreed to append to the summary report the draft explanatory report to the Recommendation on alternatives to litigation between administrative authorities and private parties.
5. Date and place of the next meeting
Members of the CJ-DA-GT were informed that there would be no further meeting the working party and that the plenary meeting of the CJ-DA would take place in Strasbourg from 2 to 4 October 2000.
APPENDIX I
LIST OF PARTICIPANTS
ANDORRA / ANDORRE : M. Antoni FIÑANA PIFARRÉ, Juge, Président des Juges d'Andorre, Conseil supérieur de la Justice, Prat de la Creu n° 8 - 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)
GERMANY/ALLEMAGNE: Dr Helmut KITSCHENBERG, Schweizer Strasse 18, 53474 BAD NEUENHAR
GREECE/GRECE: Professeur Theodoros FORTSAKIS, Faculté de droit de l'Université d'Athènes, 52, Rue Skoufa, 10672 ATHENES
ITALY/ITALIE: Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Corte di Cassazione, 5a Sezione Penale, Piazza Cavour – 00100 ROME (Vice-Chairman / Vice-Président)
IRELAND/IRLANDE: Ms Caroline DALY, Office of the Attorney General, Government Buildings, Upper Merrion Street, DUBLIN 2
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, 1000 LJUBLJANA
CONSULTANT EXPERT/EXPERT CONSULTANT
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
OBSERVERS/OBSERVATEURS :
HOLY SEE/SAINT SIEGE: Apologised/Excusé
UNITED STATES OF AMERICA/ETATS UNIS D'AMERIQUE: Apologised/Excusé
OECD / OCDE: Apologised/Excusé
INTERNATIONAL COMMISSION FOR CIVIL STATUS/COMMISSION INTERNATIONALE DE L'ETAT CIVIL: Apologised/Excusé
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Note
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DIRECTORATE GENERAL OF LEGAL AFFAIRS / DIRECTION GENERALE DES AFFAIRES JURIDIQUES
DEPARTMENT OF PUBLIC LAW/SERVICE DU DROIT PUBLIC
M. Alexey KOZHEMYAKOV, Head of the Department of Public Law/Chef du Service du droit public, Tel: 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 3479 – Fax 33 3 88 41 2764 - E-mail: rafael.benitez@coe.int
Mme Sophie MEUDAL-LEENDERS, Administratrice / Administrator , Tél: 33 3 88 41 31 74 - E-mail: sophie.meudal-leenders@coe.int
Mme Francine NAAS, Secretary / Secrétaire, Tél.: 33 3 88 41 4600 – Fax: 33 3 88 41 2764 – E-mail: francine.naas@coe.int
M. Gerardo CARBALLO, Visiteur d'études
APPENDIX II
AGENDA
1. Opening of the meeting by Mr NIEMIVUO, Chairman of the CJ-DA
- Report of the 3rd meeting of the CJ-DA-GT CJ-DA-GT (2000) 3
2. Adoption of the agenda CJ-DA-GT (2000) OJ 2 rev
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 rev
- Preliminary Draft Recommendation of the Committee
of Ministers on alternatives to litigation between
administrative authorities and private parties CJ-DA-GT (2000) 2 rev 3
- Draft explanatory memorandum to the Recommendation
of the Committee of Ministers on alternatives to litigation
between administrative authorities and private parties CJ-DA-GT (2000) 4
- Review of tribunals in the United Kingdom - Document submitted
as a consultation paper by Professor Partington CJ-DA-GT (2000) Inf. 1
5. Date and place of the next meeting
6. Other business
