Strasbourg, 24/11/1999
CJ-DA (99) 6 rev
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA)
12th meeting
Strasbourg, 14 - 17 September 1999
MEETING REPORT
Secretariat memorandum
prepared by the Directorate of Legal Affairs
1. Opening of the meeting by the Chair
The meeting of the Project Group on Administrative Law (CJ-DA) was opened by Mr Luis SILVEIRA, Chair. Mr Silveira greeted members and extended a welcome to the new member and observer States, respectively Georgia and the Holy See.
The list of participants is at Appendix I to this report.
2. Adoption of the agenda
The CJ-DA unanimously adopted the agenda for the 12th meeting, as it appears in Appendix II to this report.
3. Programme of activities of the CJ-DA for 1999
3.1 The status of public officials in Europe
a. Preliminary draft recommendation of the Committee of Ministers on the status of public officials in Europe
The CJ-DA considered the comments made by member delegations of the European Committee on Legal Co-operation (CDCJ) about the preliminary draft recommendation on the status of public officials in Europe1. The CJ-DA decided to make certain amendments to the text, which, at the end of the discussion, was approved, as it appears in Appendix III to this report.
The CJ-DA discussed the applicability of the preliminary draft recommendation to the staff of local and regional authorities. It was agreed that, while central government officials in non-central locations were covered, local and regional government staff stricto senso had to be excluded, for it was the Steering Committee on Local and Regional Democracy (CDLR) which was responsible in that sphere. At the request of the Danish delegation, the CJ-DA agreed to mention in the draft explanatory report to the recommendation the exclusion of the staff of any independent organs (committees or other bodies) which might exist within the public service.
The CJ-DA discussed the definition of the term "law" within the meaning of the recommendation. While some delegations were in favour of the term being used in its strict sense, others preferred a broader interpretation. The CJ-DA decided that the term "law" within the meaning of the recommendation encompassed legislation in the strict sense, as well as regulations, general legal principles and case-law. Collective agreements were not covered by the definition, so they were explicitly mentioned in principle 1 in the appendix to the recommendation.
The Swedish delegation pointed out that the wording of principle 5 in the appendix, on recruitment procedures, conflicted directly with Swedish legislation, under which these procedures could not be confidential. In the ensuing exchange of views, it was agreed that the confidentiality of "sensitive" information submitted by applicants for public service posts had to be protected. In this respect the Secretariat pointed to the existence of both the Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data (ETS No. 108) and Recommendation No. R (91) 10 of the Committee of Ministers on the communication to third parties of personal data held by public bodies. Such "sensitive" information was not required to be communicated in Sweden during public service recruitment procedures. The CJ-DA agreed to retain principle 5 in its existing wording, and the Swedish delegation indicated its agreement and said that necessary alterations to Swedish legislation could possibly be made once the matter had been considered.
The CJ-DA agreed to include in principle 12 in the appendix the idea that remuneration should be regarded as a means of achieving desired organisational goals.
In principle 13 in the appendix, relating to public officials' duties, the CJ-DA decided to add a reference to respect for the rights of all citizens.
The CJ-DA discussed whether training should be a right of public officials (see principle 15 in the appendix). It was decided to retain the reference to a right, and to specify that this right was not to be taken as absolute, but was part of an appropriate and non-discriminatory training policy. It was also agreed to introduce the idea that training was a government responsibility.
The CJ-DA then considered the pointers in respect of the wording of the draft recommendation and explanatory report given by the CDCJ at its 71st meeting2. In the light of these, the CJ-DA agreed to use the words "should", in the English text, and "doit", in the French.
The project group decided not to include the principles which appeared in the appendix in the body of the recommendation, because, for reasons of clarity, it was suggested that the wording of recommendations should be clear and concise, and because this conformed with Council of Europe practice.
In order to reflect the fact that certain countries no longer used the system of categories and levels of public officials, the CJ-DA agreed to add the words "where they exist" in principle 3 in the appendix.
In response to the CDCJ's suggestion about the balancing of the rights and duties of public officials, members took the view that the draft recommendation as it stood was intended to strike that balance. They agreed to mention some illustrations of the way in which the balance could be achieved in the draft explanatory report.
The CJ-DA decided to respond to the requests for explanations made by the CDCJ in respect of certain principles in the draft explanatory report.
b. Preliminary draft explanatory report on the recommendation of the Committee of Ministers on the status of public officials in Europe
The CJ-DA's expert-consultant, Prof. Bodiguel, presented the preliminary draft explanatory report to the project group. The text had been based on the report on the status of public officials in Europe, which looked at the pertinent legislation in Council of Europe member states and in the observer countries represented in the CJ-DA. The report had been based on replies to a questionnaire and had given rise to certain elements of consensus among the CJ-DA member states. These had been the basis for the principles set out in the preliminary draft recommendation and in its preliminary draft explanatory report.
The CJ-DA amended and approved the preliminary draft explanatory report to the recommendation which appears in Appendix IV to this report, in the light, inter alia, of the previous discussions of the draft recommendation and of the comments made by the CDCJ and the delegations.
3.2 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
The Secretariat drew attention to the context of the activity on alternatives to litigation: the terms of reference of the CJ-DA for 1999-2000 included an activity on the friendly settlement of disputes, and the Committee of Ministers wished a link to be established between the intergovernmental programme of activities and the co-operation programmes. The Lisbon multilateral conference was an example of this link, as it dealt with a subject which appeared in the terms of reference of the CJ-DA and had been prepared by the working party of the CJ-DA (CJ-DA-GT), which comprised members of the CJ-DA and "special" rapporteurs selected by the Secretariat.
The Secretariat reported on the Lisbon conference and, on behalf of the Secretary General, thanked the Portuguese authorities and Mr Silveira, chair of the CJ-DA, in particular, for their hospitality and for the excellent organisation of the conference. The conclusions which the conference had adopted could provide a basis for discussions on follow-up to the activity on alternatives to litigation. The proceedings of the conference would be published in the coming months.
The members of the CJ-DA also expressed their gratitude to the Portuguese authorities and said that the conference had been not only extremely worthwhile, but also very useful in the context of the activity on the friendly settlement of disputes.
b. Follow-up to the activity
The Secretariat pointed out that the CJ-DA's present terms of reference expired on 31 December 2000 and that the draft budget for the year 2000 included provision for one plenary meeting and two meetings of the working party (CJ-DA-GT).
The CJ-DA agreed that it was necessary to continue the activity on the friendly settlement of disputes. Given the speed of change in the law and the excessive workload facing the administrative courts in most European states, there were increasing calls for speedy, straightforward and economical settlement of disputes with states. Yet states opted for a very wide range of solutions, in some cases still in their infancy. It was agreed that it was necessary to study the different national systems in search of common principles and to define elements of good practice in this sphere.
Certain delegations from central and east European states confirmed that their countries were tending to give priority to strengthening their administrative justice system. They agreed that, looking to the future, the development of alternatives to litigation could be an interesting path to follow. The future work of the CJ-DA might be very useful in this context.
The CJ-DA asked the Secretariat to collect information about alternatives to litigation in administrative matters in Council of Europe member states and in the countries which had observer status in the CJ-DA. The Secretariat was asked to prepare, on the basis of this information, a brief report for examination by the CJ-DA-GT at its first meeting of the year 2000.
At the same time, on the basis of the conclusions adopted at the Lisbon multilateral conference (see item 3.2.a above), the CJ-DA-GT would, with effect from its very next meeting (see item 6 below), be starting discussions with a view to laying down common principles on which member states might base the reform or introduction of procedures for the friendly settlement of disputes on administrative matters.
The CJ-DA then turned its attention to the membership of the CJ-DA-GT for the continuation of this activity. The working party was open to all CJ-DA member states and to states holding observer status, but the Council of Europe budget covered the travel and subsistence expenses of only eight participants. It was agreed to keep membership of the working party as it was for the final meeting of the year - i.e. a mixture of CJ-DA members and rapporteurs selected by the Secretariat for the Lisbon multilateral conference - and to leave it to the chair and vice-chairs of the CJ-DA to decide on the group's membership for the following year.
4. Programme of activities of the CJ-DA for 2000: Opinion of the CJ-DA on a proposal by Germany concerning the law of procedure of administrative procedural law
The German delegate put forward and expressed support for the proposed new activity relating to the law governing administrative proceedings.
All the delegations agreed that the proposal was a useful and worthwhile one. Certain delegations mentioned the fact that national systems for dealing with administrative disputes varied widely, and that administrative courts as they existed in civil or continental law countries did not exist in some other countries; nevertheless, this diversity should not prevent an activity from being carried out on this subject.
It was, however, impossible at this stage to predict whether member states would be able to reach a sufficient degree of consensus to draw up an international instrument in this sphere. It would still be very useful to collect information about national systems for resolving administrative disputes.
The CJ-DA nonetheless emphasised that simultaneous implementation of two activities - one on the friendly settlement of disputes, the other on the law governing administrative proceedings - while it might be desirable in absolute terms, was impossible for reasons of practicality and efficiency, given the number of meetings for which the year 2000 budget provided (see item 3.2.b above). What was more, the present terms of reference of the CJ-DA made no provision for an activity on the law governing administrative proceedings. It was agreed that priority had to be given to the activity already under way on the friendly settlement of disputes, which should be taken to its conclusion within the framework of the present terms of reference. The CJ-DA decided to ask the CDCJ to reconsider the German proposal when future terms of reference for the CJ-DA were under discussion. The group also agreed to consider other proposed activities in this framework.
The CJ-DA adopted the opinion for the attention of the CDCJ which appears as Appendix V to this report.
5. Election of the Chair and of the 1st and 2nd Vice-Chairs
In accordance with Article 17 of Appendix 2 to Resolution (76) 3 of the Committee of Ministers, the CJ-DA elected Mr NIEMIVUO (Finland), Ms ČEBIŠOVÁ (Czech Republic) and Mr RAGONESI (Italy) to the offices of Chair, 1st Vice-Chair and 2nd Vice-Chair respectively, for a one-year term expiring on 31 December 2000.
The CJ-DA also thanked its Chair, Mr SILVEIRA, for all his extremely hard work and for his conciliatory style during his two years in office.
6. Date and place of the next meeting
The CJ-DA agreed that the next meeting of the CJ-DA-GT would take place in Strasbourg from 8 to 10 November 1999.
7. Other business
The Secretariat drew delegations' attention to the consultation and programming meeting to be held in Strasbourg from 11 to 14 October 1999 in connection with the Activities for Developing and Consolidating Democratic Stability (ADACS). All Council of Europe member states and applicants for membership had been invited to attend. All delegations were invited to be represented at the meeting and to submit proposals for activities relating to administrative law, so that these could, if applicable, be included in the ADACS programme-budget for the year 2000.
Appendix I
LIST OF PARTICIPANTS
ALBANIA / ALBANIE: Mr Illy MANJANI, Ministry of State for Legislative Reform, Bulevardi « Deshmoret e Kombit » -TIRANA -
AUSTRIA / AUTRICHE: Mr Stephan LEITNER, Bundeskanzleramt Verfassungsdienst Ballhausplatz 2, A-1014 WIEN
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
BULGARIA/BULGARIE: Mme Svetla PETKOVA, Juge, Chef du Département, Cour Suprême Administrative, 18 Al. Stamboliyski, Blvd – 1040 SOFIA
CROATIA / CROATIE: Mr Edmond MILETIĆ, Assistant Minister, Ministry of Administration, Republike Austrije 16 CR-10000 ZAGREB
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE: Mrs Taisia ČEBIŠOVÁ, Professor, Faculty of Law, Charles University, Curieovych 7 – 11000 PRAGUE (2nd Vice-Chairwoman/2e Vice-Présidente)
DENMARK/DANEMARK: Mr Hans Jorgen NYMARK, Ministry of Justice, Slotsholmsgade 10 – 1216 COPENHAGEN
ESTONIA / ESTONIE: Mr Anno AEDMAA, Public Law Department, Ministry of Justice, Tonismägi 5a - TALLINN
FINLAND / FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - FIN-00131 HELSINKI (1st Vice-Chairman/1er Vice-Président)
GEORGIA / GEORGIE: Mr David DOLIDZE, Department of International Legal Relations, Ministry of Justice, TBILISI
GERMANY / ALLEMAGNE: Dr Helmut KITSCHENBERG, President of the Federal Academy of Public Administration ret., Schweizerstrasse 18 - D-53474 BAD NEUENAHR
HUNGARY / HONGRIE: Mrs Kinga SZURDAY, Senior Counselor, Public Law Department, Ministry of Justice, Kossuth ter 4 - H-1055 BUDAPEST
ITALY / ITALIE: Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, Via Arenula - I-00186 ROME
LATVIA / LETTONIE: Mrs Jautrite BRIEDE, Lecturer of Administrative Law, Faculty of Law, University of Latvia, Raina 19 - LV-1586 RIGA (
LITHUANIA / LITUANIE: Mr Kestutis LAPINSKAS, Chairperson of the Department of Administrative Cases, Appeal Court of the Republic of Lithuania, 40/1 Gediminas av. 2600 VILNIUS
LUXEMBOURG: Apologised/Excusé
MALTA / MALTE: Dr Peter GRECH, Assistant Attorney General, Office of the Attorney General, The Palace, MLT VALLETTA
MOLDOVA: Mme Maria SECRIERU, Chef de Section du Département de la législation, Ministère de la Justice, 82, rue du 31 août - MD-2012 CHISINĂU
NORWAY/NORVEGE: Mr Arnulf TVERBERG, Legislation Department, The Royal Ministry of Justice and the Police, PO Box 8005 Dep, N-0030 Oslo
POLAND/POLOGNE : Mme Teresa GÓRZIŃSKA, Conseiller Juridique, Chambre Suprême de contrôle, Rue Filtrowa 57, 02-056 VARSOVIE
PORTUGAL : M. Luis SILVEIRA, Procureur Général adjoint, Procuradoria-Geral de Republica, Palacio Palmela, R. Escola Politécnica, 1250 – 103 LISBONNE (Chairman/Président)
ROMANIA / ROUMANIE: Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction Etudes, Elaboration des actes normatifs et Documentation, 17 rue Apolodor, secteur 5 – BUCAREST
SLOVAK REPUBLIC / RÉPUBLIQUE SLOVAQUE: Mr Sergej KOHUT, President of Senate Supreme Court, Župné námestie 13, SK-81490 BRATISLAVA
SLOVENIA / SLOVÉNIE: Mr Samo GODEC, Counselor to the Minister, Ministry of Interior, Administrative Academy, Kotnikova 8, 1000 LJUBLJANA
SPAIN / ESPAGNE: Mme Paloma PLAZA GARCIA, Avocate de l'Etat, Ministère de la Justice, (addresse provisoire: Commission Européenne, 200, rue de la Loi, RP 11 8/71 - B-1040 BRUXELLES
SWEDEN/SUEDE: Mrs Cecilia HEGETHORN, Legal Adviser, Ministry of Justice, 103 33 STOCKHOLM,
SWITZERLAND/SUISSE: M. Andreas TROESCH, Chef de la Division I de la Législation, Office fédéral de la justice, Département fédéral de justice et police, Bundeshaus West, CH-3003 BERNE
«THE FORMER YUGOSLAVIAN REPUBLIC OF MACEDONIA»/«L'EX-RÉPUBLIQUE YOUGOSLAVE DE MACÉDOINE»: M. Simeon GELEVSKI, Professeur à la Faculté de Droit, Université «Cyril and Methodius» ul. Bul Krste Misirkov bb – 551 SKOPJE
TURKEY/TURQUIE: M. Mehmet EROĞLU, Adalet Bakanligi Uluslararasi Hukuk ve Dis Iliskiler Genel Müdürlügü, BAKANLIKLAR
UKRAINE: Mr Volodymyr IVASCHENKO, Deputy Minister of Cabinet of Ministers, 12/2 Grushevsky Str., KYIEV
UNITED KINGDOM/ROYAUME UNI: Mr Alistair SHAW, Head of Administrative Justice Division, Lord Chancellor’s Department, Selborne House, 54-60 Victoria Street – LONDON SW1E 6QW
EUROPEAN COMMISSION/COMMISSION EUROPEENNE: Apologised/Excusé
OBSERVERS/OBSERVATEURS
HOLY SEE/SAINT SIEGE : Mme Odile GANGHOFER, Docteur en droit, 16 rue des Pontonniers, 67000 STRASBOURG
JAPAN/JAPON : Apologised/Excusé
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):
SCIENTIFIC EXPERT / EXPERT SCIENTIFIQUE
M. Jean-Luc BODIGUEL, Directeur de Recherche, Maison des Sciences de l'Homme «Ange Guépin», 21, boulevard Gaston Doumergue, BP 76235, F-44262 NANTES cedex 2
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, Fax: 33 3 88 41 27 64, 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)
Mr Namik ERGANI, Study visitor / visiteur d’étude
INTERPRETERS/INTERPRETES
M. Anath FAYE
M. Roland HERRMANN
Mme Danielle HEYSCH
Appendix II
AGENDA
1. Opening of the meeting by Mr SILVEIRA, Chairman of the CJ-DA
2. Adoption of the agenda CJ-DA (99) OJ 1
3. Programme of activities of the CJ-DA for 1999
3.1. The Status of Public officials in Europe
a. Preliminary-Draft Recommendation of the Committee of Ministers
on the Status of Public officials in Europe CJ-DA (98) 3 rev
Comments by delegations and revised version CJ-DA (99) 4
b. Explanatory memorandum of the Recommendation of the
Committee of Ministers on the Status of Public officials in Europe CJ-DA (99) 1
3.2 Alternatives to litigation between administrative authorities
and private parties
Report of the 1st meeting of the Working Party of the Project Group on
Administrative Law CJ-DA-GT (99) 1
a. Multilateral Conference on Alternatives to litigation between
administrative authorities and private parties: conciliation, mediation
and arbitration, Lisbon, 31 May-2 June 1999 ADACS/DAJ/CMAL (99) Concl
b. Follow-up to the activity
4. Programme of activities of the CJ-DA for 2000: Opinion of the CJ-DA
on a proposal by Germany concerning administrative law CJ-DA (99) 3
5. Election of the Chair and Vice-Chair of the CJ-DA for one year CJ-DA (99) 2
6. Date and place of the next meeting
7. Other business
Appendix V
OPINION OF THE CJ-DA FOR THE ATTENTION OF THE CDCJ ON THE GERMAN PROPOSAL FOR A NEW ACTIVITY CONCERNING THE LAW OF PROCEDURE OF ADMINISTRATIVE COURTS
Presented by the German delegation at the 71st meeting of the CDCJ, which was held in Strasbourg from 18 to 21 May 1999 (original document CDCJ (99) 34)
Introduction
At its 71st meeting in Strasbourg from 18 to 21 May 1999, the European Committee for Legal Co-operation (CDCJ invited the Project Group on administrative law (CJ-DA) to examine a proposal by the German delegation concerning the law of procedure in the administrative courts, in the light of discussions which were held at the CDCJ on this issue.
The German proposal mentioned above concerned the analysis by the CJ-DA of the possibilities for harmonisation of the principles guiding the procedures before the administrative courts, in particular in the following areas: 1) access to justice; 2) the scope of control exercised by the judicial authorities over administrative decisions; 3) the timing of the entry into force of administrative decisions and 4) the possibility for associations to initiate collective actions even if they can only demonstrate that their own rights have been violated.
The CJ-DA was invited in particular to consider whether (a) a real need exists to undertake this activity and whether the proposals were of such a priority which justifies a detailed examination by the CJ-DA at a later stage; (b) the preparation of an international instrument would provide a useful response to the difficulties in this area; (c) the States would be likely to reach an agreement on these questions; (d) other problems require an examination concomitant with that of the proposals; (e) any such proposals should be considered as a first priority by the CJ-DA or should be examined at a later stage after the CJ-DA has fulfilled all or part of the existing terms of its mandate.
OPINION
The CJ-DA wishes to thank the German delegation for its proposal for a new activity concerning the law of procedure in the administrative courts. This is an extremely valuable proposal which the CJ-DA considered with great interest.
The harmonisation of principles governing the procedure before the administrative courts constitutes a key issue at a time of marked reconciliation between European citizens and their States.
However, the members of the CJ-DA wish to stress the diversity of rules in this matter in the Member States. This diversity is linked to the profound differences in court structure and procedures resulting from varying legal traditions.
The CJ-DA therefore is not in a position to decide about the usefulness of an international instrument or whether the States would be likely to reach an agreement, without further and detailed consideration of the subject.
The CJ-DA will only be able to decide about the suitability and feasibility of preparing an international instrument (European Convention, recommendation of the Committee of Ministers, guidelines of the CDCJ, etc) as a result of possible future work in this field.
The CJ-DA notes in this respect that the States belonging to the “common law” tradition are not familiar with the institution of administrative courts, as the term is understood in continental law countries, which would further complicate the study of possibilities for harmonisation of rules in this field.
The CJ-DA therefore concludes that the German proposal, although extremely interesting, is not of such a priority to justify a detailed examination at this stage and that the activities currently implemented by the CJ-DA in accordance with its terms of reference, namely: Status of Public Officials in Europe and Friendly Settlement of administrative Disputes, should be completed first.
Finally, the CJ-DA wishes to propose to the CDCJ that it re-examine the German proposal at a later stage, with a view to including it in the programme of activities of the CJ-DA, possibly for 2001-2002. In this connection, the CJ-DA will propose to the CDCJ a list of proposals of activities before expiry of the CJ-DA terms of reference.
