Strasbourg, 6/10/00
CJ-DA (2000) 8
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA)
13th meeting
Strasbourg, 2-4 October 2000
MEETING REPORT
Document prepared by the Secretariat
Directorate General of Legal Affairs
1. Opening of the meeting by Mr Niemivuo, Chair of the CJ-DA
The meeting of the Project Group on Administrative Law (CJ-DA) was opened by its Chair, Mr Niemivuo.
The list of participants is given in Appendix 1 to this report.
The Chair welcomed the new representatives of Georgia, Slovakia, Spain, Turkey and the United Kingdom.
2. Adoption of the agenda
The agenda as set out in Appendix II to this report was unanimously adopted.
3. Statement by the Secretariat
The secretariat reported on the co-operation activities that had been carried out under the ADACS 2000 programme, in particular in Albania, Armenia, Croatia, Estonia and Ukraine, and on the South-Eastern Forum for Administrative Reform and Development, which had been held in Salonica (Thessaloniki) from 10 to 12 May 2000 and had launched the Council of Europe’s activities under the Stability Pact for South-Eastern Europe.
As a result of budget reorganisation in 2000, the budgets for intergovernmental and co-operation activities had been merged and co-operation activities on administrative law would henceforward be supervised by the CJ-DA. As a result of this reorganisation, there would be no further yearly consultation meetings with the beneficiaries of those programmes. They would be replaced by bilateral consultations between the secretariat and the countries concerned. Lastly, delegations which wished to do so were asked to send the secretariat their proposals for co-operation activities in writing after the meeting.
4. CJ-DA programme of activities for 2000
4.1. The status of public officials in Europe
The secretariat said that at the 699th meeting of Ministers’ Deputies, on 24 February 2000, the Council of Europe Committee of Ministers had adopted Recommendation R (2000) 6 on the status of public officials in Europe and had authorised publication of the accompanying explanatory memorandum.
4.2. Alternative means of resolving disputes between administrative authorities and private parties
a. Draft Committee of Ministers recommendation on alternative means of resolving disputes between administrative authorities and private parties
At the Chair’s invitation the CJ-DA’s scientific expert, Professor Delvolvé, presented the draft Committee of Ministers recommendation on alternative means of resolving disputes between administrative authorities and private parties, as adopted by the Working Party of the Project Group on Administrative Law (CJ-DA-GT) at its 4th meeting (3 to 5 July 2000).
Views were exchanged on the following points:
Definitions
The Council of Europe’s Legal Adviser, to whom the secretariat had submitted the draft recommendation for an opinion, considered that it would be better to move the definitions given at the beginning of the appendix to the draft recommendation to the explanatory memorandum.
The CJ-DA decided to keep the definitions in the appendix on the ground that the alternative means dealt with in the draft recommendation were defined in different ways by the member states, which could raise problems in interpreting the recommendation and incorporating it into domestic law. The definitions therefore needed to appear in the appendix.
In particular, the CJ-DA discussed the concepts of act and administrative decision, which were understood differently in countries with a continental legal system and those whose systems were based on common law. In continental law, the concept of act included that of decision, which was not the case in common law. A further question was whether the concept needed to include a. administrative acts with general scope and b. the conduct of administrative authorities - which was held to mean their actions or omissions - not involving the exercise of official powers.
Following the discussion it was decided to give the term act as broad a definition as possible, including not only acts in the strict sense and decisions, but also contracts concluded by an administrative authority and, in general, all “measures” taken by it. It was felt that the national authorities of member states should be able to choose to allow alternative means of resolving disputes resulting from all types of administrative action and the CJ-DA wished to encourage them to do so.
The confidentiality of alternative means
The CJ-DA continued the CJ-DA-GT discussion on the confidentiality of alternative means, particularly arbitration and the need to reconcile it with the transparency rule which administrative authorities were bound to observe. It was agreed that although, in the case of arbitration, confidentiality was inherent in the procedure and essential if a successful outcome were to be reached, it should be seen as an exception to the general principle, which was transparency.
Court supervision of alternative means
The CJ-DA discussed the extent of court supervision of alternative means, particularly in the case of settlements – with or without the help of conciliation or mediation - and arbitration. Some members wondered how much supervision courts could exercise over these methods since in the case of settlements the parties’ wishes should take precedence and in the case of arbitration the arbitrator’s decision had judicial force. Finally it was decided that in all cases, whatever alternative means were employed, there must at the very least be supervision of compliance with a number of principles set out in the section on regulating alternative means.
Administrative authorities’ fulfilment of their obligations
A number of members were in favour of including in the recommendation a provision that administrative authorities were under the same obligation to abide by solutions reached by alternative means as by court decisions. Other members objected that although such an obligation was conceivable with settlements or arbitration, it was not in other cases, especially where a conciliation or mediation procedure resulted in a unilateral decision by the administrative authority. Some delegations also pointed out that the compliance obligation applied to private parties as well as administrative authorities.
The CJ-DA therefore considered it preferable to insert a more general preambular paragraph in the recommendation making it clear that parties should not regard alternative means as a way of avoiding their obligations or circumventing the principle of lawfulness.
Following a discussion on this subject, the CJ-DA adopted the draft Committee of Ministers recommendation on alternative means of resolving disputes between administrative authorities and private parties as set out in Appendix III to this report, and agreed to forward it to the European Committee on Legal Co-operation (CDCJ) for adoption and forwarding to the Committee of Ministers.
b. Draft explanatory memorandum to the recommendation of the Committee of Ministers on alternative means of resolving disputes between administrative authorities and private parties
The secretariat presented a draft explanatory memorandum to the recommendation, based on discussions at the 2nd, 3rd and 4th meetings of the CJ-DA-GT and the reports presented at the multilateral conference, “Alternatives to litigation between administrative authorities and private parties: conciliation, mediation and arbitration” (Lisbon, 31 May to 2 June 1999), which had been the starting point for further work on this subject.
The CJ-DA amended and approved the draft explanatory memorandum (see Appendix IV to this report) in the light of previous discussions on the draft recommendation.
c. Draft summary report on alternatives to litigation between administrative authorities and private persons
The secretariat presented a draft summary report on alternatives to litigation between administrative authorities and private persons, based on the results of a questionnaire sent to member states. To give as full and accurate a picture of the situation as possible the report covered not only the alternative means dealt with in the draft recommendation, but whatever methods were employed in member states, such as ombudsmen.
Some delegations wished to amplify their replies to the questionnaire and the secretariat asked them to do so in writing by 13 October 2000.
Subject to this further information, the CJ-DA adopted the draft report as set out in Appendix V to this report and, at the CJ-DA-GT’s suggestion, decided that it should be appended to the explanatory memorandum to the draft recommendation on alternative means of resolving disputes between administrative authorities and private parties.
5. The CJ-DA programme of activities for 2001: discussion on new activities
The CJ-DA welcomed the German delegate to the CDCJ, Mr Eberhard Desch, who presented the German proposal for a new activity in 2001-02 on the law of procedure of administrative Courts.
This proposal had been submitted to the CDCJ in May 1999. After an exchange of views, the CDCJ had asked the CJ-DA to examine the proposal and report back on it. At its 12th meeting, the CJ-DA had adopted an opinion on the proposal (document CJ-DA(99)3 rev) stating that the proposal was valuable and of interest, but expressing the view that the activity on alternatives to litigation between administrative authorities and private persons should be given priority under the present terms of reference.
The Chair said that the activity proposed by the German delegation was very wide, covering four areas:
- access to justice;
- the scope of judicial review;
- the enforcement of administrative decisions;
- the right of associations to bring class actions in administrative matters.
In addition, the German proposal referred to provisions of European Community law and could involve considering of European Union law and case law and their possible effect on national systems of administrative law and administrative justice.
The German delegate to the CDCJ said that in his opinion, the enforcement of administrative decisions was the most important of the four themes, especially as the subject of the 2001 Conference of European Ministers of Justice was to be the enforcement of court decisions.
The CJ-DA shared this view and noted that an activity on this theme could look at the two aspects of enforcing administrative decisions - enforcement of court decisions and enforcement of decisions of administrative authorities. In this context, the CJ-DA also agreed to examine administrative authorities’ liability where court decisions were not complied with and to consider limited aspects of the effects of European Community law.
The Chair then invited those delegates who so wished to present other proposals for new activities.
The Maltese delegate presented a proposal for an activity on the role of regulators in a context of increasing privatisation. This proposal was supported by the Austrian, Latvian and Swiss delegates.
The Portuguese delegate presented two alternative proposals for activities, one on silence of the administration and the other on withdrawal of administrative acts. The Chair underlined the importance of these two themes, particularly in the Scandinavian countries, where they were of topical interest.
Finally, the Swiss delegate stressed his country’s interest in the fourth theme of the German proposal, the locus standi of associations to bring class actions in the administrative field.
6. Draft specific CJ-DA terms of reference for 2001-02
Following the discussion on the previous item, the secretariat presented a revised version of the draft specific terms of reference which included all the above-mentioned proposals in order of CJ-DA preference (see items 4.2 to 6). The draft, which appears in Appendix VI to this report, would be submitted to the CDCJ so that it could choose between the various activities proposed.
7. Election of the Chair and Vice-Chairs
In accordance with Article 17 of Appendix 2 to Committee of Ministers Resolution (76) 3, the CJ-DA re-elected Mr NIEMIVUO (Finland) Chair for the period ending on 31 December 2001. Mr RAGONESI (Italy) and Ms GÓRZIŃSKA (Poland) were elected 1st and 2nd Vice-Chairs respectively for the same period.
8. Forthcoming meetings
The CJ-DA agreed to hold its next full meeting in Strasbourg from 8 to 10 October 2001.
LISTE DES PARTICIPANTS
ANDORRA/ANDORRE: M. Pierre PASTOR VILANOVA, Juge, Seu de la Justicia, Batllia d'Andorra, Avda de Tarragona, ANDORRA LA VELLA
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
CROATIA / CROATIE: Mr Edmond MILETIĆ, Assistant Minister, Ministry of Justice, Administration and Local Self-Government, Republike Austrije 3 - 10000 ZAGREB
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE: Mrs Taisia ČEBIŠOVÁ, Professor, Faculty of Law, Charles University, Curieovych 7 – 110 00 PRAGUE 1 (1st Vice-Chairwoman/1re Vice-Présidente)
ESTONIA / ESTONIE: Mrs Ülle MADISE, Head of the Public Law Department, Ministry of Justice, 5a Tonismägi Street - TALLINN
FINLAND / FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - 00131 HELSINKI (Chairman/Président)
GEORGIA / GEORGIE: Mr Giorgi TSKRIALASHVILI, Head of the 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
GREECE/GRECE: Mr Theodor FORTSAKIS, Professeur, Faculté de droit, 52 rue Skoufa - 10672 ATHENES 10680
HUNGARY / HONGRIE: Dr Paulina OROS, Public Law Department, Ministry of Justice, Kossuth ter 4 - 1055 BUDAPEST
IRELAND/IRLANDE: Mrs Caroline DALY, Government Buildings, Upper Merrion Street, DUBLIN 2
ITALY / ITALIE: Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, Via Arenula 70 - 00186 ROME (2nd Vice-Chairman/2e Vice-Président)
LATVIA / LETTONIE: Mrs Jautrite BRIEDE, Consultant of the Ministry of Justice, Lecturer of Administrative Law, Faculty of Law, University of Latvia, Raina Bulv. 19 - LV-1536 RIGA
MALTA / MALTE: Dr Peter GRECH, Assistant Attorney General, Office of the Attorney General, The Palace, VALLETTA
MOLDOVA: Mme Maria SECRIERU, Chef de Section du Régime Constitutionnel et des Autorités publiques, Département de la législation, Ministère de la Justice, 82, rue 31 August - 2012 CHISINĂU
NORWAY/NORVEGE: Mr Arnulf TVERBERG, Legislation Department, The Royal Ministry of Justice and the Police, PO Box 8005 Dep, 0030 Oslo
POLAND/POLOGNE : Mme Teresa GÓRZIŃSKA, Académie Polonaise des Sciences, Institut des Sciences Juridiques, Nowy Swiat 72, 00-330 VARSOVIE
PORTUGAL : M. Luis SILVEIRA, Procureur Général adjoint, Procuradoria-Geral de Republica, Palacio Palmela, R. Escola Politécnica, 1250 – 103 LISBONNE
ROMANIA / ROUMANIE: Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction Etudes, Elaboration des actes normatifs et Documentation, Ministère de la Justice, 17 rue Apolodor, secteur 5 – BUCAREST
SLOVAK REPUBLIC / RÉPUBLIQUE SLOVAQUE: Mrs Zuzana OBORNÁ, Legal Adviser, Civil Law Department, Ministry of Justice, Župné námestie 13, 811 13 BRATISLAVA
SLOVENIA / SLOVÉNIE: Mr Samo GODEC, Urad za organizacijo in razvoj uprave, Smartinska 152 - 1000 LJUBLJANA
SPAIN / ESPAGNE: Mr Jesus BESTEIRO RIVAS, Avocat d'Etat, Plaza del Seminario n° 1, 40001 SEGOVIA
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, 3003 BERNE
«THE FORMER YUGOSLAV 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: Mme Yesim TUMER, Judge, General Directorate of International Law and Foreign Affairs, Ministry of Justice, Adalet Bakanligi, Uluslararasi Hukuk ve Dis Iliskiler, Genel Mudurlugu - Bakanliklar - ANKARA
UNITED KINGDOM/ROYAUME-UNI: Mrs Heather BRADBURY,Head of ADR Policy Branch, Lord Chancellor's Department, Selborne House, 54-60 Victoria Street – LONDON SW1E 6QW
SCIENTIFIC EXPERT/EXPERT SCIENTIFIQUE:
M. Pierre DELVOLVÉ, Professeur, Faculté de Droit, Université de Paris II, 5 rue de Luynes, 75007 PARIS
EUROPEAN COMMISSION/COMMISSION EUROPEENNE: Apologised/Excusé
OBSERVERS/OBSERVATEURS
HOLY SEE/SAINT SIEGE : Mme Odile GANGHOFER, Docteur en droit, 16 rue des Pontonniers, 67000 STRASBOURG
UNITED STATES OF AMERICA/ETATS UNIS D'AMERIQUE: Apologised/Excusé
CANADA: -
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): -
SECRETARIAT GENERAL
Directorate of Legal Affairs, Department of Public Law/Direction des Affaires Juridiques, 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 - 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)
Interpreters/Interprètes
Mme Corinne McGEORGE
Mme Julia TANNER
APPENDIX II
DRAFT AGENDA
1. Opening of the meeting by Mr. NIEMIVUO, Chair of the CJ-DA CJ-DA (99) 6 rev
2. Adoption of the Agenda CJ-DA (2000) OJ 1
3. Statement by the Secretariat
4. Programme of activities of the CJ-DA for 2000
4.1 The Status of public officials in Europe R (2000) 6 and Report
4.2 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) (Strasbourg, 12 April 1999)
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CJ-DA-GT (99) 1
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Report of the 2nd meeting of the CJ-DA-GT (Strasbourg, 8-10 November 1999)
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CJ-DA-GT (99) 4
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Report of the 3rd meeting of the CJ-DA-GT (Strasbourg, 10-12 April 2000)
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CJ-DA-GT (2000) 3
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Report of the 4th meeting of the CJ-DA-GT (Strasbourg, 3-5 July 2000)
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CJ-DA-GT (2000) 5
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Conclusions of the Multilateral Conference on Alternatives to Litigation between administrative authorities and private parties: conciliation, mediation and arbitration, Lisbonne, 31 mai-2 juin 1999
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ADACS/DAJ/CMAL (99) Concl.
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Alternative Dispute Resolution and Review of Tribunals in United Kingdom
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CJ-DA (2000) Inf 1
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a. Draft Recommendation of the Committee of Ministers on Alternatives to Litigation between administrative authorities and private parties CJ-DA (2000) 1
b. Draft explanatory memorandum on the Recommendation of the Committee of Ministers on Alternatives to Litigation between administrative authorities and private parties CJ-DA (2000) 2
c. Draft summary report on Alternatives to Litigation between administrative authorities and private parties CJ-DA (2000) 3
5. Programme of activities of the CJ-DA for 2001 : discussion on new activities
Document of the Secretariat CJ-DA (2000) 4
Opinion of the CJ-DA on the German Proposal concerning the Law of Procedure of Administrative Courts CJ-DA (99) 3 rev
Administrative Capacity Development : A race against time? by A.J.G. Verheijen, Scientific Council for Government Policy CJ-DA (2000) Inf. 2 (Anglais seulement)
6. Draft specific terms of reference of the CJ-DA for 2001-2002 CJ-DA (2000) 5
7. Election of the Chair and of the Vice-Chairs CJ-DA (2000) 6
8. Calendar of next meetings
9. Other business
APPENDIX III
DRAFT RECOMMENDATION OF THE COMMITTEE OF MINISTERS ON ALTERNATIVE MEANS OF RESOLVING DISPUTES BETWEEN ADMINISTRATIVE AUTHORITIES AND PRIVATE PARTIES
RECOMMENDATION No. R (XX) XX
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON ALTERNATIVE MEANS OF RESOLVING DISPUTES BETWEEN ADMINISTRATIVE AUTHORITIES AND PRIVATE PARTIES
(Adopted by the Committee of Ministers on …
at the XXth meeting of the Ministers’ Deputies)
1. The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe;
2. Considering that the aim of the Council of Europe is to achieve a greater unity between its members;
3. Recalling Recommendation R (81) 7 on measures facilitating access to justice, which in its appendix called for measures to encourage the use of conciliation and mediation;
4. Recalling Recommendation R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts, which calls for encouraging, in appropriate cases, the use of friendly settlement of disputes, either outside the judicial system altogether or before or during legal proceedings;
5. Considering on the one hand that the large amount of cases and, in certain States, its constant increase can impair the ability of courts competent for administrative cases to hear cases in a reasonable time, within the meaning of Article 6.1 of the European Convention on Human Rights;
6. Considering on the other hand that courts' procedures in practice may not always be the most appropriate to resolve administrative disputes;
7. Considering that the widespread use of alternative means of resolving administrative disputes can allow these problems to be dealt with and can bring administrative authorities closer to the public;
8. Considering that the principal advantages of alternative means may be, depending on the case: simpler and more flexible procedures, allowing for speedier and less expensive resolution of disputes, friendly settlement, expert dispute resolution, resolving of disputes according to equitable principles and not just according to strict legal rules, greater discretion;
9. Considering therefore that users should be able to resolve administrative disputes by means other than the use of courts;
10. Considering that the use of alternative means should not serve administrative authorities or private parties as a mean of avoiding their obligations or the rule of law;
11. Considering that, in all cases, alternative means should allow judicial review, as this constitutes the ultimate guarantee for protecting both users' rights and the rights of the administration;
12. Considering that alternative means to litigation must respect the principle of equality between the parties, the rights of the defence and the principle of impartiality; and that, in particular, when the body entrusted with implementing the procedure is not part of the administration, it should respect the principle of independence;
13. Bearing in mind the Conclusions of the multilateral Conference on alternatives to litigation between administrative authorities and private parties which the Council of Europe organised in collaboration with the Ministry of Justice of Portugal in Lisbon from 31 May to 2 June 1999;
14. Recommends that the governments of member States promote the use of alternative means for resolving disputes between administrative authorities and private parties by following, in their legislation and their practice, the principles of good practice contained in the Appendix to this Recommendation.
Appendix to Recommendation No. R (XX) XX
I. GENERAL PROVISIONS
1. Subject of the Recommendation
i. This Recommendation deals with alternative means for resolving disputes between administrative authorities and private parties.
ii. The alternative means considered in this Recommendation include in particular: internal reviews, conciliation, mediation, settlement and arbitration.
iii. For the purposes of this Recommendation, terms are defined as follows:
§ Act: any measure taken by an administrative authority affecting private parties including any contract concluded by an administrative authority;
§ Internal reviews: an appeal procedure before a competent authority;
§ Conciliation: a non-judicial procedure involving a third party which aims to bring the parties to a mutually acceptable solution;
§ Mediation: a non-judicial procedure involving a third party who proposes a solution to the dispute in the form of a non-binding opinion or recommendation ;
§ Settlement: an agreement resulting from any of the above mentioned procedures or any other procedure by which the parties put an end to their dispute by agreeing to reciprocal concessions;
§ Arbitration: a non-state judicial procedure under which the responsibility for settling a dispute by a decision is entrusted to one or several persons specially nominated.
iv. Although the Recommendation deals with resolving disputes between administrative authorities and private parties, some alternative means may also serve to prevent disputes before they arise; this is particularly the case in respect of conciliation, mediation and settlement.
2. Scope of alternative means
Alternative means to litigation should be either generally permitted or permitted in certain types of cases, in particular those concerning individual administrative acts, contracts, civil liability, and generally speaking, claims relating to a sum of money.
3. Regulating alternative means
i. The regulation of alternative means should either provide for their institutionalisation or their use on a case-by-case basis according to the parties' decision.
ii. In all cases, the regulation should:
a) Ensure that parties receive appropriate information about the possible use of alternative means;
b) Ensure the independence and impartiality of those bodies and persons resolving the dispute. It is not acceptable for someone to act as a conciliator, mediator or arbitrator when they have a conflict of interests;
c) Guarantee equality between the parties so as to avoid one party - usually the administrative authority - dominating the other;
d) Guarantee the rights of the defence;
e) Guarantee as far as possible transparency in the use of alternative means and a certain level of discretion;
f) Ensure the execution of the solutions reached using alternative means.
iii. The regulation should prescribe reasonable, compulsory time limits for the conclusion of alternative procedures in order to prevent unnecessary delay.
iv. The regulation may provide that the use of some alternative means to litigation will in certain cases result in the suspension of the execution of an act either automatically or following a decision by the competent authority.
II. RELATIONSHIP WITH COURTS
i. Some alternative means, such as internal reviews, conciliation, mediation and the search for a settlement, may be used prior to legal proceedings. The use of these means could be made compulsory as a prerequisite to the commencement of legal proceedings.
ii. Some alternative means, such as conciliation, mediation and settlement, may be used during legal proceedings, possibly following a recommendation by the judge.
iii. The use of arbitration should in principle exclude legal proceedings.
iv. In all cases, the use of alternative means should allow for judicial review which constitutes the ultimate guarantee for protecting both users' rights and the rights of the administration.
v. Judicial review will depend upon the alternative means chosen. Depending on the case, the types and extent of this review will cover the procedure, in particular the respect for the principles stated under section I.3. ii), b), c), d) and e), and/or the merits.
vi. In principle and subject to the law, the use of alternative means should result in the suspension or interruption of the time limits for legal proceedings.
III. SPECIAL FEATURES OF EACH ALTERNATIVE MEANS
1. Internal reviews
i. In principle, internal reviews should be possible in relation to any act. They may concern the expediency and/or legality of an administrative act.
ii. Internal reviews may in some cases be compulsory, as a prerequisite to legal proceedings.
iii. Internal reviews should be examined and decided upon by the competent authorities.
2. Conciliation and Mediation
i. Conciliation and mediation can be initiated by the parties concerned, by a judge or can be made compulsory by law.
ii. Conciliators and mediators should arrange meetings with each party individually or simultaneously in order to reach a solution.
iii. Conciliators and mediators can persuade an administrative authority to repeal, withdraw or modify an act on grounds of expediency or legality.
3. Settlement
i. Unless otherwise provided by law, administrative authorities shall not use a settlement to disregard their duties.
ii. In accordance with the law, public officials participating in a procedure aimed at reaching a settlement shall be provided with sufficient powers to be able to compromise.
4. Arbitration
i. The parties should be able to choose the law and procedure for the arbitration within the limits prescribed by law. Subject to the law and the wishes of the parties, the arbitrators’ decisions can be based upon equitable principles and not just according to strict legal rules.
ii. Arbitrators should be able to review the legality of an act as a preliminary issue with a view to reaching a decision on the merits even if they are not authorised to rule on the legality of an act with a view to it being quashed.
APPENDIX IV
SPECIFIC TERMS OF REFERENCE
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:
1) to reconsider, if necessary, any text prepared in pursuance of the activity on alternatives to litigation between administrative authorities and private parties at the request of the CDCJ;
2) to carry out an activity regarding the execution of decisions in the administrative field;
3) to carry out an activity regarding the role of regulators in the context of increasing privatisation;
4) to carry out an activity regarding the silence of the administration;
5) to carry out an activity regarding the withdrawal of administrative acts;
6) to carry out an activity regarding the locus standi of associations to bring class actions in the administrative field;
7) To contribute and to monitor the implementation of the Council of Europe's activities for the development and consolidation of democratic Stability in the field of administrative law and administrative justice.
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 Community may send a representative, without the right to vote or defrayal of expenses, to meetings of the Group.
(c) The Observers with the Council of Europe, may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee: Holy See, United States of America, Canada, Japan and Mexico.
(d) The Observers to the CJ-DA may send representatives, without the right to vote or defrayal of expenses, to meetings of the Group: OECD and the International Commission on Civil Status.
6. Working structures and methods: The CJ-DA may set up working parties and make use of experts consultants.
7. Duration: These terms of reference shall be reviewed before 31 December 2002.
