Strasbourg, 17 November 2003
CJ–DA–GT (2003) 11
WORKING PARTY OF THE PROJECT GROUP
ON ADMINISTRATIVE LAW
(CJ-DA-GT)
3rd meeting
Strasbourg, 3-5 November 2003
MEETING REPORT
FOREWORD
At this meeting, the CJ-DA-GT in particular:
a. approved the text of the preliminary draft recommendation on judicial review of administrative acts (see Part II below) ;
b. decided that the explanatory memorandum to the recommendation should be adapted in accordance with the final text of the preliminary draft recommendation;
c. chose the theme for consideration with a view to the preparation of the CJ-DA’s draft terms of reference for 2005-2006 (see Part III below);
Secretariat memorandum prepared by
the Directorate General of Legal Affairs
TABLE OF CONTENTS
Page
I. INTRODUCTION 3
II. PRELIMINARY DRAFT RECOMMENDATION ON THE JUDICIAL REVIEW
OF ADMINISTRATIVE ACTS 3
- Structure and title
- Definitions
- Principles
III. FUTURE ACTIVITIES OF THE CJ-DA 5
IV. DATES OF THE NEXT CJ-DA MEETING 5
APPENDICES
APPENDIX I: LIST OF PARTICIPANTS 6
APPENDIX II: AGENDA 9
APPENDIX III: SPECIFIC TERMS OF REFERENCE OF THE CJ-DA
FOR 2004 11
APPENDIX IV: PRELIMINARY DRAFT RECOMMENDATION ON THE
JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
AS ADOPTED BY THE CJ-DA-GT AT ITS 3rd MEETING 13
I. INTRODUCTION
1. The Working Party of the Project Group on Administrative Law (CJ-DA-GT) held its third meeting from 3 to 5 November 2003 at the Council of Europe headquarters in Strasbourg, with Mr Matti Niemivuo (Finland) in the Chair. The list of participants appears in Appendix I to this report.
2. The CJ-DA-GT discussed and adopted the draft agenda, as set out in Appendix II.
3. The Representative of the Secretariat informed the CJ-DA-GT that the Committee of Ministers had, at its 851st meeting on 9 September 2003, adopted Recommendation No. (2003) 16 on the execution of administrative and judicial decisions in the field of administrative law.
4. The Committee of Ministers had adopted, at its 852nd meeting on 17 September 2003, the specific terms of reference of the CJ-DA for 2004. The main item, point 4.a, remains unchanged, but point 4.b has been modified as reproduced in Appendix III.
II. PRELIMINARY DRAFT RECOMMENDATION ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
5. Further to the instructions given by the Project Group on Administrative Law (CJ-DA) (see doc. CJ-DA (2002) 6, paragraph 29), the CJ-DA-GT resumed its examination of the preliminary draft recommendation on the judicial review of administrative acts (see doc. CJ-DA-GT (2003) 9). This document contains the amendments made by the CJ-DA-GT at its 2nd meeting (Strasbourg, 10-12 June 2003) and the proposals subsequently sent in by Professor David Harris, the scientific expert. The text as revised by the CJ-DA-GT at this meeting is set out in Appendix IV.
6. The CJ-DA-GT agreed that the Secretariat should transmit the final revised text of the draft recommendation to the Consultative Council of European Judges (CCJE) for opinion.
Title and structure
7. The scientific expert raised once again the problem of the use of judicial “control” or “review” in the English title. Although “control” had been substituted for “review” at the last meeting, “review” was finally considered to be more appropriate by the scientific expert and the expert from Ireland and was consequently approved by the CJ-DA-GT.
8. The scientific expert confirmed, on a question by the expert from the Czech Republic, that the term ”review” covered the question of administrative silence.
9. Following discussion as to whether to follow the traditional formula of putting the substantive part of the recommendation in an appendix, the CJ-DA-GT agreed that, in order to give them greater weight, the principles of the draft recommendation should be included in the body of the recommendation.
A. Definitions
10. In the definition of “administrative acts” the CJ-DA-GT decided not to refer to “individual or collective” rights and interests as this aspect is covered under new principle 2.a on “Access to judicial review”.
B. Principles
11. The CJ-DA-GT discussed the appropriateness of including in the body of the recommendation an introductory sentence resuming Part B of the recommendation. After discussion, it decided to reflect this sentence in the meeting report in order to permit, if need be, further consideration of this issue by the CJ-DA. This sentence reads: “all administrative acts should be subject to judicial review, which is open to all persons affected by this act. Judicial review should be carried out by an independent and impartial tribunal that guarantees a fair hearing and has the necessary powers to remedy the situation”.
12. The CJ-DA-GT reversed the order of the first two series of principles in order to make the presentation more logical.
The scope of judicial review
13. The reference to the exercise of discretionary power was deleted from principle 2.a (new 1.a) and the indent referring to administrative silence was deleted in view of the revised definition of administrative acts. The CJ-DA-GT agreed to include the third indent on administrative sanctions in the explanatory report; while the fourth indent was revised with a view to clarification (new 1.b).
Access to judicial review
14. The CJ-DA-GT reworded the first indent (new 2.a) to reflect the concerns expressed that judicial review should only be available for those administrative acts that “directly” affect the rights or interests of physical and legal persons. The wording of the second sentence of this indent was made more flexible to take account of the concerns expressed by some experts about the reference to “collective interests”; this was considered to be a sensitive issue in some countries. Other experts considered that the sentence was important for encouraging states to move forward and open the possibility for associations to have access to a court.
15. The wording of the principle was modified in order to make it clear that a reasonable time limit should be allowed within which judicial review proceedings could be commenced. The question of whether persons could conduct their own defence should be taken up in the explanatory memorandum.
The right to a fair hearing
16. The CJ-DA-GT accepted the proposals made by the scientific expert and worded the provision more precisely. Some experts raised the issue of silence of the administration with regard to indent 3.c.; others considered that this issue was covered by the new definition of “administrative acts”.
17. A new indent was added to reinforce the public character of hearings.
The effectiveness of judicial review
18. The CJ-DA-GT agreed to change the order of the indents and added an introductory sentence to 5.a (former 5.b) in order to avoid merely listing the competences of the tribunal. The concept of the tribunal’s competence to require the administrative authority to perform a duty was also added.
C. Explanatory memorandum
19. The CJ-DA-GT examined the preliminary draft explanatory memorandum to the draft recommendation, prepared by the Secretariat (doc. CJ-DA-GT (2003) 8), and instructed the Secretariat to prepare a revised version in the light of the changes made to the draft recommendation and the points raised during the meeting.
III. FUTURE ACTIVITIES OF THE CJ-DA
20. At its last meeting the CJ-DA-GT had instructed the Secretariat briefly to expand on the themes selected for consideration by the CJ-DA with a view to the drafting of its specific terms of reference for 2005-2006. The CJ-DA-GT examined these themes as set out in document CJ-DA-GT (2003) 7.
21. Following an initial discussion, a preference was expressed by certain delegations for the subject of privatisation of public activities, or for legitimate expectations, especially in the context of certainty of the law, which were brought together under the heading “Different methods of managing public services”.
22. Other countries, however, preferred themes such as the prevention of illegal acts or decisions and the avoiding of judicial disputes. The CJ-DA-GT brought these themes together under the heading “Prevention of illegal acts/illegal decisions and disputes”.
23. After further discussion, the CJ-DA-GT finally agreed that the principal theme to be proposed to the CJ-DA with a view to preparing the revised specific terms of reference of the CJ-DA for 2005-2006 should be “making better administrative decisions”, a theme which could be considered from several different points of view.
IV. DATES OF THE NEXT MEETING OF THE CJ-DA
24. The CJ-DA-GT proposed that, subject to approval of the Budget for 2004, the next meeting of the CJ-DA would take place in Strasbourg on 3-5 March 2004.
APPENDIX I
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW/
GROUPE DE TRAVAIL DU GROUPE DE PROJET SUR LE DROIT ADMINISTRATIF
(CJ-DA-GT)
3rd meeting
Strasbourg, 3-5 November 2003
LIST OF PARTICIPANTS
MEMBER STATES / ETATS MEMBRES
Members/Membres
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE
Mrs Taisia ČEBIŠOVÁ, Associate Professor, Faculty of Law, Charles University, PRAHA
FINLAND / FINLANDE
Mr Matti NIEMIVUO, Deputy Director General, Ministry of Justice, HELSINKI
(Chair of the CJ-DA-GT / Président du CJ-DA-GT)
GREECE / GRECE
M. Théodore FORTSAKIS, Professeur de Droit Public, Université d’Athènes, ATHENES
IRELAND / IRLANDE
Mrs Caroline DALY, Advisory Counsel, Office of the Attorney General, DUBLIN
(Vice-Chair of the CJ-DA / Vice-Présidente du CJ-DA)
ITALY / ITALIE Apologised / Excusé
M. Vittorio RAGONESI, Magistrat, Cour de Cassation, ROME
(Chair of the CJ-DA / Président du CJ-DA)
LATVIA / LETTONIE
Mrs Jautrite BRIEDE, Lecturer of Administrative Law, Faculty of Law, University of Latvia, RIGA
NETHERLANDS / PAYS-BAS
Mr Theo SIMONS, Senior Vice-President of the Administrative Court of Appeal, UTRECHT
PORTUGAL Apologised / Excusé
M. Mário AROSO de ALMEIDA, Professeur universitaire de droit administratif, PORTO
ROMANIA / ROUMANIE
Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction de l'élaboration des actes normatifs, des études et de la documentation, Ministère de la Justice, BUCAREST
SLOVENIA / SLOVÉNIE Apologised/Excusée
Mrs Barbara KOZELJ, Counsellor, Office for organisation and development of administration
LJUBLJANA
SWITZERLAND / SUISSE
M. Philippe GERBER, Collaborateur scientifique, Division I de la Législation, Office fédéral de la justice, Département fédéral de justice et police, BERNE
Others/Autres
ANDORRA / ANDORRE
M. Pierre PASTOR VILANOVA, Magistrat, Seu de la Justicia, ANDORRA LA VELLA
BELGIUM / BELGIQUE
Mme Hrisanti PRASMAN, Conseiller adjoint, Service public fédéral Intérieur, Service de coordination et d’appui, Service Juridique, BRUXELLES
LITHUANIA/LITUANIE - Apologised/Excusée
MALTA/MALTE – Apologised/Excusé
UKRAINE - Apologised/Excusée
SCIENTIFIC EXPERT / EXPERT SCIENTIFIQUE
Mr. David HARRIS, Professor of Public International Law, Nottingham University, NOTTINGHAM
COUNCIL OF THE EUROPEAN UNION / CONSEIL DE L’UNION EUROPEENNE
Apologised/Excusé
OBSERVERS WITH THE COUNCIL OF EUROPE/
OBSERVATEURS AUPRES DU CONSEIL DE L’EUROPE
CANADA – Not represented/non représenté
HOLY SEE / SAINT SIEGE - Apologised/excusé
JAPAN / JAPON
M. Pierre DREYFUS, Assistant, Consulat Général du Japon, STRASBOURG
MEXICO / MEXIQUE – Not represented/non représenté
UNITED STATES OF AMERICA / ETATS-UNIS D’AMERIQUE
Mr Michael P. TIERNAN, Consul, Consulate General of the United States of America, STRASBOURG
OBSERVERS WITH THE CJ-DA / OBSERVATEURS AUPRES DU CJ-DA
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD) /
ORGANISATION DE COOPERATION ET DE DEVELOPPEMENT ECONOMIQUE (OCDE)
Not represented / non représentée
UNITED NATIONS / NATIONS UNIES
Not represented / non représenté
INTERNATIONAL COMMISSION ON CIVIL STATUS /
COMMISSION INTERNATIONALE DE L’ETAT CIVIL (CIEC) - Apologised/Excusée
EUROPEAN PUBLIC LAW CENTRE /
CENTRE EUROPEEN DE DROIT PUBLIC – Not represented/non représenté
EUROPEAN FEDERATION OF ADMINISTRATIVE JUDGES /
FEDERATION EUROPEENNE DES JUGES ADMINISTRATIFS
M. Pierre VINCENT, Vice-Président de la Fédération Européenne des Juges Administratifs, Vice-Président du Tribunal administratif de Strasbourg, STRASBOURG
M. Patrick KINTZ, Président de chambre, Cour Administrative d’Appel de Nancy, STRASBOURG
SECRETARIAT DU CONSEIL DE L’EUROPE /
SECRETARIAT OF THE COUNCIL OF EUROPE
Directorate General of Legal Affairs, Department of Public Law/
Direction Générale des Affaires Juridiques, Service du droit public
www.coe.int/cj-da
M. Giovanni PALMIERI, Head of the Department / Chef du Service
Mme Danuta WIŚNIEWSKA-CAZALS, Secretary to the CJ-DA / Secrétaire du CJ-DA
Mrs Judith LEDOUX, Principal Assistant
Mme Edith LEBEAU, Assistant / Assistante
Mme Marie-Rose PREVOST, Assistant / Assistante
INTERPRETATION
Mme Sylvie BOUX
Mr Christopher TYCZKA
Mr Robert VAN MICHEL
APPENDIX II
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW/
GROUPE DE TRAVAIL DU GROUPE DE PROJET SUR LE DROIT ADMINISTRATIF
(CJ -DA-GT)
3rd Meeting/3ème réunion
Strasbourg, 3-5 November/novembre 2003
AGENDA / ORDRE DU JOUR
1. Opening of the meeting / Ouverture de la réunion
2. Adoption of the agenda / Adoption de l’ordre du jour
3. Information by the Secretariat / Informations par le Secrétariat
4. Preparation of the preliminary draft Recommendation on the judicial control of administrative acts and the preliminary draft Explanatory memorandum to the Recommendation / Elaboration de l’avant-projet de recommandation sur le contrôle juridictionnel des actes de l’administration et de l’avant-projet d’exposé des motifs de cette recommandation
Working documents / documents de travail
Preliminary draft Recommendation on the judicial control of administrative action prepared by the scientific expert and the Secretariat / Avant-projet de recommandation sur le contrôle juridictionnel des actes de l’administration préparé par l’expert scientifique et le Secrétariat
CJ-DA-GT (2003) 4
Preliminary draft Recommendation on the judicial control of administrative acts as amended by the CJ-DA-GT / Avant-projet de recommandation sur le contrôle juridictionnel des actes de l’administration, tel qu’amendé par le CJ-DA-GT
CJ-DA-GT (2003) 9
Preliminary draft Explanatory memorandum to the recommendation / Avant-projet d’exposé des motifs de la recommandation
CJ-DA-GT (2003) 8
Background documents / Documents de référence
Report of the 2nd meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT) (Strasbourg, 10-12 June 2003) / Rapport de la 2ème réunion du Groupe de travail du Groupe de projet sur le droit administratif (CJ-DA-GT) (Strasbourg, les 10-12 juin 2003) CJ-DA-GT (2003) 6
5. Preparation of proposals for activities aimed at strengthening the legal framework of good administration as an essential element of good governance / Elaboration des propositions d’activités visant le renforcement du cadre juridique d’une bonne administration en tant que composante essentielle de la bonne gouvernance
Working documents / documents de travail
Future activities of the CJ-DA – Themes to be examined for the elaboration of the draft revised specific terms of reference of the CJ-DA for 2005- 2006 / Travaux futurs du CJ-DA – Thèmes à examiner en vue de l’élaboration du projet de mandat spécifique révisé du CJ-DA pour 2005-2006
CJ-DA-GT (2003) 7
Background documents / Documents de référence
Specific terms of reference of the CJ-DA for 2004 as approved by the Committee of Ministers / Mandat spécifique du CJ-DA pour 2004 tel qu’approuvé par le Comité des Ministres
CJ-DA (2003) 3
Legal instruments of the Council of Europe in the field of administrative law / Les instruments juridiques du Conseil de l’Europe dans le domaine du droit administratif
CJ-DA-GT (2003) 10
6. Dates of the future meetings of the CJ-DA-GT / Dates des prochaines réunions du CJ-DA-GT
7. Any other business / Divers
APPENDIX III
SPECIFIC TERMS OF REFERENCE
OF THE PROJECT GROUP ON ADMINISTRATIVE LAW (CJ-DA)
for 2004
as approved by the Committee of Ministers
at the 852nd meeting on 17 September 2003
1. Name of Committee: Project Group on Administrative Law (CJ-DA)
2. Type of Committee: Committee of experts
3. Source of terms: European Committee on Legal Co-operation (CDCJ)
4. Terms of Reference:
Under the authority of the European Committee on Legal Co-operation (CDCJ), the CJ-DA is instructed in particular:
a. to finalise in 2004 the elaboration of the draft recommendation on the judicial review of administrative action on the basis of the preliminary draft recommendation prepared in 2003 by the Working Party of the CJ-DA, with a view to transmitting it to the CDCJ, for adoption by the Committee of Ministers;
b. to work out and submit to the CDCJ proposals for activities aimed at strengthening the legal framework of good administration as an essential element of good governance, with a view to elaboration of specific terms of reference of CJ-DA for 2005-2006.
5. Membership of the Committee:
a. The governments of all member States are entitled to appoint members with the following desirable qualifications: senior officials having responsibilities as regards administrative law and administrative justice.
The Council of Europe's budget bears travelling and subsistence expenses for one expert per member State.
b. The European Commission and the General Secretariat of the Council of the European Union may take part in the work of the CJ-DA, but without the right to vote or to reimbursement of expenses.
c. The following observers with the Council of Europe may send a representative to meetings of the CJ-DA but without the right to vote or to defrayal of expenses:
- Canada,
- Holy See,
- Japan,
- Mexico,
- United States of America.
d. The following observers with the Committee may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee:
- OECD,
- UN and its specialised organs,
- the International Commission on Civil Status,
- the European Public Law Centre and
- the European Federation of Administrative Judges.
6. Working structures and methods:
The CJ-DA may set up working parties and make use of expert-consultants and organise hearings and consultations.
7. Duration: These terms of reference shall be reviewed before 31 December 2004.
APPENDIX IV
PRELIMINARY DRAFT RECOMMENDATION ON THE
JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
AS ADOPTED BY THE CJ-DA-GT AT ITS 3rd MEETING
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Recalling Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” and the relevant case law on administrative disputes of the European Court of Human Rights;
Considering that effective judicial review of administrative acts to protect the rights and interests of individuals is an essential element of the system of protection of human rights;
Taking into account the results of the monitoring of respect by member states of their commitments on the subject of “functioning of the judicial system” and of the decision taken by the Ministers’ Deputies at their 693rd meeting on 12 January 2000 on the possibility and scope of judicial review of administrative decisions;
In the light of the conclusions of the 1st Conference of Presidents of supreme administrative courts in Europe, which had as its theme “The possibility and scope of the judicial control of administrative decisions in member states” (Strasbourg, 7-8 October 2002);
Taking into account the legal instruments of the Council of Europe in the field of administrative law and in particular Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities;
Bearing in mind Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
Recalling Recommendation No. R (2003) 16 on execution of administrative and judicial decisions in the field of administrative law;
Seeking to strengthen the rule of law and human rights, fundamental values of the legal systems of Council of Europe member states;
Seeking to ensure effective access to judicial review of administrative acts;
Convinced that other methods of control of administrative acts, which may include internal appeal to the administrative authorities and control by the ombudsman as well as appeal to alternatives to litigation set out in Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties, are useful for improving the functioning of jurisdictions and for the effective protection of everyone’s rights;
Recommends that the governments of member states apply, in their national legal system and in practice, the principles set out below:
A. Definitions
For the purposes of this Recommendation,
1. By “administrative acts” are meant:
a. legal acts – both individual and normative – and physical acts of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons;
b. situations of refusal to act or an omission to do so.
2. By “judicial review” is meant the examination and determination by a tribunal of the lawfulness of an administrative act.
B. Principles
- 1. The scope of judicial review
a. All administrative acts should be subject to judicial review. Such review may be direct or by way of exception.
- b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power.
2. Access to judicial review
a. Judicial review should be available to natural and legal persons in respect of administrative acts that directly affect their rights or interests. Member states are encouraged to examine whether the protection of collective or community interests may be ensured through associations formed in accordance with law.
b. Natural and legal persons may be required to exhaust internal administrative remedies before having recourse to a tribunal. The length of the preliminary procedure should not be excessive.
c. Natural and legal persons should be allowed a reasonable period of time in which to commence judicial review proceedings.
d. The cost of access to judicial review should not be such as to discourage applications. Legal aid should be available to indigent persons where the interests of justice require it.
3. An independent and impartial tribunal
a. Judicial review should be conducted by a tribunal established by law whose independence and impartiality are guaranteed in accordance with the terms of Recommendation No R (94) 12.
b. The tribunal may be an administrative tribunal or part of the ordinary court system.
4. The right to a fair hearing
a. The time within which the tribunal takes its decision should be reasonable in the light of the circumstances of each case.
b. There should be equality of arms between the parties to the proceedings. Each party should be given an opportunity to present his or her case without being placed at a disadvantage.
c. The administrative authority has an obligation to make available the documents and information relevant to the case. The applicant should have access to these documents and information.
d. The proceedings should be adversarial in nature. All evidence admitted by a tribunal should in principle be made available to the parties with a view to adversarial argument.
e. The tribunal should be in a position to examine all of the factual and legal issues relevant to the case presented by the parties.
f. The proceedings should be conducted in public, other than in exceptional circumstances.
- g. Judgment should be pronounced in public.
h. Reasons should be given for the judgment. Tribunals should indicate with sufficient clarity the grounds on which they base their decisions. Although it is not necessary for a tribunal to deal with every point raised in argument, a submission that would, if accepted, be decisive for the outcome of the case requires a specific and express response.
i. The decision of the tribunal that reviews an administrative act should, in important cases, be subject to appeal to a higher tribunal, unless the case is directly referred to a higher tribunal in accordance with the national legislation.
5. The effectiveness of judicial review
a. If a tribunal finds that an administrative act is unlawful, it should have the powers necessary to redress the situation so that it is in accordance with the law. In particular, the tribunal should be competent at least to quash the administrative decision and if necessary to refer the case back to the administrative authority to take a new decision that complies with the judgment. The tribunal should also be competent to require of the administrative authority the performance of a duty.
b. The tribunal should also have jurisdiction to award costs of the proceedings and compensation in appropriate cases.
c. The necessary powers to ensure effective execution of the tribunal’s judgment should be available as detailed in Recommendation No R (2003) 16.
d. The tribunal should be competent to grant provisional measures of protection pending the outcome of the proceedings.
