CJ-DA-GT (2002) 5
Strasbourg, 5 September 2002
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
WORKING PARTY OF THE PROJECT GROUP
ON ADMINISTRATIVE LAW
(CJ-DA-GT)
4th meeting
Strasbourg, 30 August 2002
MEETING REPORT
Secretariat memorandum
prepared by the Directorate General of Legal Affairs
1. Opening of the meeting by Mr Niemivuo, Chairman of the CJ-DA-GT
1. The 4th meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT) was opened by its Chairman, Mr Niemivuo.
2. The list of participants appears in Appendix I to the present report.
3. The Chairman welcomed the participants and introduced the experts who were to act as rapporteurs for the Conference of Presidents of Supreme Administrative Courts and invited to attend the CJ-DA-GT meeting in that connection.
2. Adoption of the agenda
4. The agenda, as set out in Appendix II to the present report, was adopted unanimously.
3. Statement by the Secretariat
5. The Secretariat informed the members of the CJ-DA-GT that Recommendation (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties had been published in its definitive version and was available from the Secretariat.
4. Programme of activities of the CJ-DA for 2002-2003: Possibility and scope of judicial review of administrative decisions in member states
6. The Secretariat pointed out that the terms of reference for the CJ-DA for 2002-2003 comprised two activities, one focusing on the execution of decisions in the field of law and the other on the possibility and scope of judicial review of administrative decisions in member states.
7. Under the first of these activities, at its last meeting, from 27 February to 1 March 2002, the CJ-DA-GT had adopted a draft recommendation of the Committee of Ministers on execution of administrative and court decisions in the field of administrative law (see documents CJ-DA-GT (2002) 1 rev. 2 and CJ-DA-GT (2002) 2 rev.) These two drafts would be submitted to the CJ-DA for adoption at its next meeting, scheduled for 27 to 29 November.
8. Concerning the second activity and with a view to the link desired by the Committee of Ministers between the intergovernmental pillar of the Council of Europe and the cooperation programmes for reinforcing the rule of law, the first Conference of Presidents of Supreme Administrative Courts in Europe would focus on the theme of the possibility and scope of judicial review of administrative decisions. The Conference would take place in Strasbourg on 7 and 8 October 2002 and culminate in the adoption of conclusions that would serve as a basis for the CJ-DA to pursue this activity.
9. The aim of the CJ-DA-GT meeting was primarily to prepare the Conference and follow-up to it within the intergovernmental framework.
5. Preparation of the First Conference of Presidents of Supreme Administrative Courts in Europe
10. The CJ-DA-GT began with a general exchange of views on the conference theme.
11. The general rapporteur for the conference, Professor David Harris, briefly reviewed the development of the case-law of the European Court of Human Rights concerning judicial review of public authority decisions and pointed out that those drafting the Convention had not initially provided for this kind of supervision. The Court's case-law had developed considerably since, incorporating an ever larger proportion of administrative decisions under the notion of "civil rights and obligations" provided for in Article 6 of the Convention. However, this had not been a systematic development, and certain areas of administrative acts still lay outside the scope of Article 6. He gave examples of decisions regarding taxation and immigration. Discussion ensued concerning the administrative decisions not covered by Article 6.
12. The question of the type of supervision required by Article 6 was also raised. Unlike civil cases, in which the Court interpreted the Article as necessitating review of acts and their lawfulness, in public law and under the traditional principle that the judge could not take the place of the authorities, it was more commonly a verification of the lawfulness of the challenged decision that seemed to be required, except in certain cases such as disputes over employment or child custody. However, these limitations on the judge's supervisory powers seemed somewhat outmoded, as administrative court judges were increasingly involved in the examination of acts.
13. The members of the CJ-DA-GT also noted that Article 6 of the Convention was not the only one applicable in the event of judicial review of administrative decisions and that Article 13, which provided for the right to an effective remedy, was also to be borne in mind.
14. The CJ-DA-GT then examined arrangements for the organisation and running of the conference with reference to document CJ-DA-GT (2002) 4.
Draft programme
15. The conference rapporteurs briefly outlined the themes they intended to deal with in their report and said that they would compare notes to avoid any overlapping between the different reports. To that end, and for the purpose of planning round tables and conference conclusions (see below) it was agreed that the rapporteurs would send or preferably e-mail the main points of their report to the Secretariat by 16 September 2002. These elements would be passed on to all the rapporteurs.
16. With regard to the organisation of reviews of administrative decisions, the rapporteurs stressed that this theme had to be considered in comparative terms, with emphasis on the different approaches adopted by European states. It should be dealt with in broad terms, including a description of internal appeals to authorities, which was an important aid – and sometimes a mandatory step – in reviewing administrative decisions.
Round tables
17. The CJ-DA-GT exchanged views on the best means of encouraging discussion between the conference participants.
18. In preference to devising and sending a questionnaire, it would be a useful preparatory measure to send the participants a compilation of the main points to be covered by each rapporteur. This would give the participants a fairly good idea of the content of debates so that they could prepare accordingly.
19. It would be for the chairmen of the sittings, appointed from among the conference participants, to guide discussions with the help of the rapporteurs.
Conclusions
20. The conclusions would be drawn up during the Conference, under the authority of the general rapporteur and in collaboration with the rapporteurs and the Secretariat. These conclusions, which should be one or two pages long, could be prepared partly in advance and completed once the debates had closed. They would be presented by the general rapporteur, for discussion and adoption by the participants.
21. With a view to preparing the conclusions, the CJ-DA-GT asked the rapporteurs to send their reports to the Secretariat before the beginning of the meeting, so that it could pass them on to the general rapporteur.
22. The CJ-DA-GT indicated that, since the subject of the Conference was very broad, it might provide material for a number of draft recommendations of the Committee of Ministers. In that context, it expressed the wish that the conference conclusions review the issues discussed and propose several thrusts for future activities, enabling the CJ-DA to select themes to follow up.
1. Follow-up to the first meeting of Presidents of Supreme Administrative Courts in Europe
23. The CJ-DA-GT was in favour of publishing the conference proceedings, budget funds permitting.
24. It also thought that the conference conclusions could form a basis for preparing one or several draft recommendations (see above).
25. The CJ-DA-GT believed that organising this conference was a welcome initiative and that, if it was successful, further Conferences of Presidents of Supreme Administrative Courts in Europe could be envisaged in the future on a two- or three-yearly basis.
2. Other business
25. None.
APPENDIX I
LISTE OF PARTICIPANTS
ANDORRA/ANDORRE: Apologised/Excusé
BELGIUM / BELGIQUE : Apologised/Excusé
FINLAND / FINLANDE :
Mr Matti NIEMIVUO, (Chair of the CJ-DA-GT / Président du CJ-DA-GT), Deputy Director General, Ministry of Justice, P.O. Box 25 – 00023 GOVERNMENT HELSINKI
ITALY / ITALIE :
M. Victorio RAGONESI, (Chair of the CJ-DA / Président du CJ-DA), Magistrat de la Cour de Cassation, Ministère de la Justice, Via Arenula, n.70, 00186 ROME
IRELAND / IRLANDE :
Mrs Caroline DALY, (Vice-Chair of the CJ-DA / Vice-Présidente du CJ-DA), Government Buildings, Upper Merrion Street, DUBLIN 2
ROMANIA / ROUMANIE:
Mme Violeta BELEGANTE, Conseiller juridique, Direction de l'élaboration des actes normatifs, des études et de la documentation, Ministère de la Justice, 17 rue Appolodor, secteur 5 – BUCAREST
SLOVENIA / SLOVENIE:
Mr Samo GODEC, Academy of administration, Kotnikova 8, 1000 LJUBLJANA
INDEPENDENT EXPERTS / EXPERTS INDEPENDANTS:
Mr Jacek CHLEBNY, President of the Lodz Section, Supreme Administrative Court, ul Piotrkowska 135, 90434 LODZ – Poland
Prof. Theodore FORTSAKIS, Faculté de droit, 52 rue Skoufa - ATHENES 10680 – Grèce
Prof. David HARRIS, Professor of Public International Law, Nottingham University, University Park, NOTTINGHAM M67 2RD
Mr Paul LEMMENS: Apologised/Excusé
Directeur de l’Institut des Droits de l’Homme, Université catholique de Leuven (Belgique) / Director of the Human Rights Centre, Catholic University of Leuven (Belgium)
M. Jean-Paul COSTA : Apologised/Excusé
Vice-Président de la Cour Européenne des Droits de l’Homme (Strasbourg) / Vice-President of the European Court of Human Rights (Strasbourg)
COMMISSION INTERNATIONALE SUR LE STATUT CIVIL/INTERNATIONAL COMMISSION ON CIVIL STATUS: Apologised/Excusé
OBSERVERS/OBSERVATEURS
HOLY SEE/SAINT SIEGE: -
UNITED STATES OF AMERICA/ETATS UNIS D'AMERIQUE: Apologised/Excusé
CANADA: -
JAPAN/JAPON: M. Pierre DREYFUS, Assistant, Consulat Général du Japon, 20 place des Halles - Bureaux Europe - 67000 STRASBOURG
MEXICO/MEXIQUE: -
EUROPEAN FEDERATION OF ADMINISTRATIVE JUDGES/
FEDERATION EUROPEENNE DES JUGES ADMINISTRATIFS:
M. Pierre VINCENT, Vice Président de la Fédération Européenne des Juges Administratifs, Président-Assesseur à la Cour Administrative d’Appel de Nancy, Cour administrative d'appel, 6, rue du Haut Bourgeois, 54000 Nancy
Mme Elisabeth ROBINO, Conseiller, Tribunal Administratif de Strasbourg, 31 av. de la Paix , 67070 STRASBOURG
SECRETARIAT
Directorate General of Legal Affairs, Department of Public Law / Direction Générale des Affaires Juridiques, Service du droit public
M. Alexey KOJEMIAKOV, Head of the Department of Public Law/Chef du Service du Droit public
(Tél: 33 3 88 41 38 00, Fax: 33 3 88 41 27 64, E-mail: alexey.kojemiakov@coe.int)
Mme Sophie MEUDAL-LEENDERS, Secretary of the CJ-DA / Secrétaire du CJ-DA, Department of Public Law / Service du droit public
(Tél: 33 3 88 41 31 74, Fax: 33 3 88 41 27 64, E-mail: sophie.meudal-leenders@coe.int)
Mme Frédérique BONIFAIX, Assistant / Assistante, Department of Public Law / Service du droit public
(Tél: 33 3 88 41 20 05, Fax: 33 3 88 41 27 64, E-mail: frederique.bonifaix@coe.int)
INTERPRETERS / INTERPRETES
Mme Sally BAILEY
Mme Pascale MICHLIN
Mme Nadine KIEFFER
APPENDIX II
AGENDA
1. Opening of the meeting by Mr NIEMIVUO, Chairman of the CJ-DA
- Draft Report of the 14th meeting of the CJ-DA CJ-DA (2001) 5
2. Adoption of the agenda CJ-DA-GT (2002) OJ 2
3. Statement of the Secretariat
4. Programme of activities of the CJ-DA for 2002-2003
Possibility and scope of judicial review of administrative decisions in member states
- Specific terms of reference of the CJ-DA
- Introductory document CJ-DA-GT (2001) 4
5. Preparation of the first meeting of Presidents of Supreme Administrative Courts in Europe
- Draft programme of the Conference
3. Follow-up to the first meeting of Presidents of Supreme Administrative Courts in Europe
4. Other business
