Strasbourg, 10/10/01
CJ-DA (2001) 5
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA)
14th meeting
Strasbourg, 8-10 October 2001
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
1. The 14th meeting of the Project Group on Administrative Law (CJ-DA) was opened by its Chair, Mr Niemivuo.
2. The list of participants is given in Appendix I to this report.
3. The Chair welcomed the new representatives of Armenia, Azerbaijan, Cyprus, Norway, Switzerland, Turkey and Ukraine and the observer from Japan.
4. The CJ-DA approved the draft meeting report of the 13th Meeting of the CJ-DA (document CJ-DA(2000)8).
2. Adoption of the agenda
5. The agenda as set out in Appendix II to this report was unanimously adopted.
3. Statement by the Secretariat
6. The Secretariat informed the CJ-DA that, at the 762nd meeting of Ministers’ Deputies, on 5 September 2001, the Committee of Ministers of the Council of Europe adopted Recommendation R (2001) 9 on alternatives to litigation between administrative authorities and private parties and authorised publication of its explanatory memorandum.
7. The Secretariat also reported on the work of the 24th Conference of European Ministers of Justice, held in Moscow, 4-5 October 2001. The Conference adopted Resolution No. 3 on “General approach and means of achieving effective enforcement of judicial decisions”, where the importance of ensuring the effectiveness of, inter alia, judicial decisions in administrative matters was recognised, and invited the European Committee on Legal Co-operation (CDCJ) to identify common standards and principles at a European level for the enforcement of Court decisions. This resolution was brought to the attention of delegates.
8. The Secretariat announced the launching of the new Internet site for administrative law and justice (www.coe.int - Legal Activities – Legal Co-operation – Administrative Law and Justice), where information and public documents about the CJ-DA and its activities will be available to the public.
9. Finally, with regard to future activities of the CJ-DA, the Secretariat stressed the importance of ensuring that the respective national delegations to the CDCJ be appropriately briefed about CJ-DA activities in order to avoid difficulties.
4. Programme of activities of the CJ-DA for 2001
4.1. The execution of decisions in the administrative field
10. The Chair presented to the CJ-DA the apologies of the consultant expert, Mr Jean-Jacques LOUIS who, for health reasons, could not attend the meeting.
11. The CJ-DA examined a draft report prepared by the consultant expert (document CJ-DA-GT(2001)6) on the basis of the replies to the questionnaire addressed to the Council of Europe member and observer States in order to elicit information on their legislation governing the execution of decisions given by administrative or judicial authorities. The Chair invited the delegations to exchange their views on the document and, in particular, on its conclusions.
12. The Secretariat noted that this document did not need to be approved by the CJ-DA, since it was intended as a reflection paper with a view to further discussion and to the possible preparation of a draft recommendation, and that neither the report nor the replies to the questionnaire (document CJ-DA-GT(2001)5 and addenda 1-4) would be published, since the latter only existed in English or French. However the Secretariat proposed that they be posted on the web site of the CJ-DA, subject to the agreement of the delegations concerned, since they were a valuable source of information. With regard to this last point, the Secretariat invited delegations that had not yet sent their replies and delegations wishing to review their replies to do so by 30 November 2001. The CJ-DA agreed with this position.
13. The Chair referred to the draft report of the 2nd meeting of the CJ-DA-GT (document CJ-DA-GT(2001)7, held in Strasburg, 4-5 October 2001, in which the usefulness and the scope of a possible draft recommendation on the execution of decisions in the administrative field were discussed, on the basis of the draft report prepared by the consultant expert.
14. The CJ-DA agreed with the position of the CJ-DA-GT concerning the usefulness of preparing a draft recommendation in this field. This draft recommendation should not aim at unifying European systems of implementation, but at identifying the main issues and indicating minimum standards to be respected with regard to execution of decisions in the administrative field in the light of each member State’s own legal systems.
Structure of the recommendation
15. With regard to the structure of the draft recommendation, the CJ-DA decided in favour of a two-part structure, following the structure of the questionnaire and the draft report by the consultant expert. The first part would deal with the execution of decisions of administrative authorities vis-à-vis private persons, and the second part with the execution of judicial decisions vis-à-vis administrative authorities.
16. The CJ-DA-GT considered a number of points that, in its opinion, should be included in a draft recommendation. These are set out below.
Preamble
17. The CJ-DA agreed that the preamble to this draft recommendation should refer both to the guarantees for private persons and to the need to ensure efficient action by the administrative authorities. It should also refer to the relevant instruments of the Council of Europe in this field, including those contained in document CJ-DA-GT (2001) Inf.11, and to Resolution N. 3 of the 24th Conference of European Ministers of Justice.
Definitions
18. The CJ-DA agreed that for the purposes of this activity definitions should be drawn from relevant instruments adopted by the Council of Europe in this field and should find their place in the explanatory memorandum.
19. As far as the definition of “administrative decision” is concerned, following the discussion it was decided to give the to term the meaning that was adopted, for instance, in Recommendation N. R(1980)2, that is, “any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal”, excluding from the definition both general measures and acts or decisions deriving from private capacity, such as contracts.
20. Moreover, the CJ-DA agreed to adopt for the purposes of this activity the English terms “implementation” and “enforcement” corresponding respectively to the French terms “execution” and “execution forcée” in order to draw a clear distinction between voluntary and non-voluntary execution.
21. The CJ-DA also discussed whether these definitions should be included in the draft recommendation itself or in its explanatory memorandum; and decided to refer the matter to its Working Group."
I. The execution of decisions of administrative authorities vis-à-vis private persons
Implementation
22. The CJ-DA considered the characteristics of administrative decisions with specific regard to implementation, and agreed that administrative decisions have a vocation to modify the existing legal order and that this fact was a key feature with a bearing on implementation. Further to that, the CJ-DA agreed to include in the draft recommendation a reference to voluntary implementation of administrative decisions by private parties as a general principle, notwithstanding the protection of their rights and interests and that if administrative decisions entail obligations for private persons, the latter must implement the decisions only if they have been brought to their knowledge in accordance with the laws.
23. Subject to possible exceptions, the CJ-DA agreed that as a general rule no prior control by the courts was needed in order to proceed to the implementation of administrative decisions, and that this did not exclude the possibility of a posterior protection of the rights and interests of private parties.
Suspension of implementation
24. The CJ-DA discussed the extent of the principle according to which private persons should be able to request suspension of the implementation of an administrative decision, where the introduction of an administrative appeal did not automatically entail such suspension. The CJ-DA agreed that this principle should be generally recognised, although there may be exceptional cases in which implementation could not be delayed pending the outcome of an appeal, or in which no possibility of suspension, or of appeal at all, could be foreseen.
25. The CJ-DA agreed that the right to request a suspension arises immediately, the request should be treated in the shortest terms, and that a reasonable time-limit for the request should be fixed in order to strike a balance between the protection of the rights of private parties and the need not to block administrative authorities’ action.
26. Some delegations agreed with the principle that suspension may also be requested without contesting the legal basis of a decision, in order to find a way to implement it which would be suitable to both administrative authorities and private parties. The CJ-DA called upon its Working Party to further discuss this point.
27. In addition, the CJ-DA agreed that suspension of the implementation may also be requested to judicial authorities and noted that this possibility was most relevant in the case of positive administrative decisions, i.e. decisions modifying a legal situation, although the possibility of suspending the implementation of a negative decision or of a decision already partially enforced could not be excluded.
28. In this context the CJ-DA considered the conditions and the extent of the power of judicial authorities and, in particular, whether suspension could take place independently from an appeal procedure and whether a court could directly suspend an administrative decision. The CJ-DA invited the Working Party to further consider this point in order to find a suitable formulation of this principle in the draft recommendation
29. The CJ-DA also shared the view that in taking a decision regarding suspension of its decisions administrative authorities should take into account all the interests at stake, including the interests of third persons.
Enforcement
30. The CJ-DA agreed that the following issues should be included in the draft recommendation:
Legal basis
31. The CJ-DA agreed that enforcement should be expressly provided for by legislation, even if in general terms. This would not amount to requiring a specific legal basis for each decision in any single given case. This formulation encompasses also those cases in which, as in the Common Law systems, enforcement requires a prior judicial decision.
Information to private persons
32. The CJ-DA agreed on the importance of this guarantee and decided to make an explicit reference to it in the case of enforcement procedures, in order to ensure the possibility to react against possible irregularities that may occur in the enforcement decision or in actions undertaken during the enforcement procedure. The CJ-DA also discussed to what extent this guarantee should be preserved in cases of urgency, but did not reach a decision and invited its Working Party to further consider this issue.
Voluntary compliance within reasonable time-limits
33. In conformity with the idea that voluntary compliance should be the general rule, the CJ-DA shared the view that private persons should, as far as possible, be able to comply voluntarily with the enforcement decision, within a reasonable time limit, although it admitted a possible derogation to this guarantee in case of urgency.
Proportionality
34. The CJ-DA stressed the importance of the principle of proportionality between the enforcement measures, their cost and the goal to be achieved in all circumstances, including cases of urgency, notwithstanding the possible use of different evaluation standards.
35. In addition, the CJ-DA agreed to introduce in the draft recommendation a specific point concerning enforcement in cases of urgency. The CJ-DA shared the view that in such cases administrative authorities should justify the need for enforcement, and that without prejudice to the principle of proportionality the notion of urgency should itself determine the extent of the enforcement procedure and of the guarantees to be preserved. Thus, for instance, guarantees like time limits for voluntary compliance and, in some cases, the requirement of preliminary information to the person concerned may not apply in such cases.
36. Finally, the CJ-DA agreed to consider that judicial control of enforcement decisions is possible, in order to ensure the necessary guarantees for the protection of private persons’ rights and interests, but that a prior court control is, generally speaking, unnecessary. The Norwegian delegate noted that this is not the case in his country, where prior control by courts is generally required.
II. The execution of judicial decisions vis-à-vis administrative authorities
37. The CJ-DA discussed the possibility of drawing a distinction between different kinds of decisions that can be taken against administrative authorities by the Courts, including: annulment decisions, declaratory decisions, condemnation decisions and decisions in which the Court replaces the administrative authority by its own.
38. Some delegations proposed a distinction based on the consequences of the decision concerned: annulment decisions, that impose the administration to reconsider the case and to take a new decision, and decisions imposing pecuniary sanctions or material activities.
39. Some delegates noted that an annulment decision determines ipso facto the inexistence of the annulled act and that execution might only concern decisions with pecuniary or material aspects. Others noted that while this position is correct in principle, in order to assure respect of a court annulment decision, the decision itself may not be sufficient, and that a further distinction should be drawn between annulment decisions concerning acts adversely affecting the administration and acts adversely affecting private persons. In the first case, the decision would be actually annulled and disappear automatically; in the second case, should take a new decision or, at least, should draw all the appropriate consequences arising from the annulment decision.
40. The CJ-DA agreed to refer this issue to its Working Party for further discussion and reference in the explanatory memorandum to the recommendation, while no distinctions or classifications should be included in the draft recommendation.
41. The Secretariat referred to Resolution No. 3 adopted at the 24th Conference of European Ministers of Justice and noted the importance attached to effectiveness of judicial decisions in administrative matters. In view of the above, the CJ-DA agreed that the draft recommendation should mention the need to recognise judicial decisions as compulsory and to ensure their effective enforcement.
42. The CJ-DA discussed the minimum common standards that the draft recommendation should include with regard to the execution of judicial decisions, to the power of the judge and to the effects vis-à-vis administrative authorities of judicial decisions annulling administrative decisions.
43. The Swiss delegate presented a written draft text regarding these issues (document CJ-DA (2001) Misc.2 bil2), proposing to state in the draft recommendation, as a minimum common standard, that the administration should execute voluntarily a judicial decision and proposed that the draft recommendation should not define the way to execute judicial decisions, since it depends on too many different parameters (type of decision, procedures adopted, etc.), but it should however recognise the right for private persons to initiate proceedings and to seek a sanction in case of non-execution of a decision favourable to them. Some delegates agreed with this proposal, though others suggested that the issue should be further developed. The CJ-DA decided to refer the matter to its Working Party (CJ-DA-GT).
44. The CJ-DA then discussed the consequences of non-execution by administrative authorities and the possibility of imposing pecuniary sanctions or material activities on administrative authorities. Several delegations supported this possibility. However, the CJ-DA concluded in favour of a general statement recognising a right for private persons to obtain compensation for damages.
45. The CJ-DA also examined the possibility of seizing property of the administrative authorities and creating ad hoc budget provisions for effective compensation of damages. Even though in some countries, such as Norway, it is not possible to enforce claims against the State, the CJ-DA agreed that this possibility should not, generally speaking, be excluded, since the provision of budgetary instruments would, moreover, be coherent with the provisions of Recommendation No. R(84)15 of the Committee of Ministers relating to Public Liability, and with the general objective of ensuring effective compensation within reasonable time-limits.
46. The CJ-DA invited its Working Party to further consider this point, as well as the possibility of foreseeing “positive” measures in order to stimulate the execution instead of “negative” measures such as sanctions against inaction.
47. At the close of the debate the CJ-DA agreed upon a series of items to be included in the draft recommendation (see Appendix III). The CJ-DA decided to bring these items to the attention of its Working Party (CJ-DA-GT), together with the Swiss proposal concerning execution of judicial decision vis-à-vis administrative authorities, as a working basis for the preparation of the draft recommendation.
4.2 The role of regulators in the context of increasing privatisation
48. The Secretariat informed members of the CJ-DA that this activity, had been included in the specific terms of reference of the Committee for 2001-2002.
49. The Secretariat informed members of the CJ-DA that when considering the current specific terms of reference and in particular the activity on the role of regulators in the context of increasing privatisation, the CDCJ called upon the CJ-DA to identify the specific issues that should be covered in the context of this activity. The idea of organising a European Law Colloquy was suggested as a suitable means to identify the areas requiring possible consideration by the Council of Europe.
50. The Secretariat further referred to recent developments relating to the Monitoring procedure in the Council of Europe (see Item 5) in view of which it was suggested to postpone the implementation of this new activity for the current specific terms of reference of the CJ-DA, notwithstanding the possibility to resume it in future specific terms of reference of the Committee.
51. The CJ-DA agreed with this proposal.
5. Programme of activities of the CJ-DA for 2002
52. The Secretariat informed members of the CJ-DA that within the framework of the monitoring procedure of compliance with member States' commitments the Committee of Ministers has identified “access to justice” among the sub-themes under the theme « functioning of the judicial system » which deserve priority treatment, with specific reference, inter alia, to the existence of a structural problem relating to the absence of judicial review of administrative decisions3.
53. In the light of this information, at its 693th meeting at Deputies’ level (Strasbourg, 12 January 2000) the Committee of Ministers decided to instruct the European Committee on Legal Co-operation (CDCJ) and, in particular, its Committee of Experts on Efficiency of Justice (CJ-EJ) in co-operation with the European Committee on Crime Problems (CDPC), to examine, within their respective terms of reference, particularly in the light of the case-law of the European Court of Human Rights, the situation in member States with respect to various issues, including the possibility and scope of judicial review of administrative decisions in member States, and to make recommendations to the Committee of Ministers on these issues4.
54. Following the request of the CJ-EJ, at its 75th meeting (Strasbourg, 31 May-1 June 2001) the CDCJ considered the role of the CJ-DA in relation to the terms of reference of the CJ-EJ concerning the possibility and scope of judicial review of administrative decisions in member States and invited the CJ-DA to propose to the CDCJ at its next meeting, in December 2001, revised draft specific terms of reference enabling the CJ-DA to deal with these matters5.
55. The Secretariat informed that this activity should be undertaken, in 2002-2003, instead of the activity regarding the role of regulators in the context of increasing privatisation, and submitted revised draft specific terms of reference of the CJ-DA for 2002-2003 accordingly. The draft specific terms of reference also extend the status of observer to the CJ-DA to representatives from Bosnia and Herzegovina, Federal Republic of Yugoslavia, the European Public Law Centre and the European Federation of Administrative Judges, given the interest shown in the works of the Committee and the contribution they could make to it.
56. The CJ-DA adopted the draft specific terms of reference, as set out in Appendix IV to this report and decided to submit it to the CDCJ for adoption and transmission to the Committee of Ministers.
6. Election of the Chair and Vice-Chair
57. In accordance with Article 17 of Appendix 2 to Committee of Ministers Resolution (76) 3, the CJ-DA decided that there was no longer a need for two vice-chairpersons and agreed to elect only one Vice-Chair for next period. The CJ-DA elected Mr RAGONESI (Italy) Chair and Mrs DALY (Ireland) Vice-Chair for the period ending on 31 December 2002.
58. The CJ-DA delegations expressed their gratitude to Mr. Niemivuo for his valuable contribution in chairing the Committee for the last two years.
7. Forthcoming meetings
59. The CJ-DA agreed to hold its next meeting in Strasbourg in October 2002. The CJ-DA also agreed to hold the next CJ-DA-GT meeting in Strasbourg in February 2002. It was agreed to confirm Mr. NIEMIVUO as Chair of the CJ-DA-GT and to preserve the current composition of the Working Party, i.e. three CJ-DA representatives (the Chair of the CJ-DA-GT, the President and the Vice-President of the CJ-DA) and five independent experts, given that it had proven successful.
APPENDIX I
LIST OF PARTICIPANTS
ALBANIA / ALBANIE: -
ANDORRA/ANDORRE: Apologised/Excusé
AUSTRIA/AUTRICHE: Mr Stephan LEITNER, Bundeskanzleramt Verfassungsdienst Ballhausplatz 2, A-1014 WIEN
ARMENIA/ARMENIE: Ms Lusine AGHAJANYAN, First degree consultant, Department of international legal relations, Ministry of Justice, V. Sargsyan Str. No 3, YEREVAN
AZERBAIJAN/AZERBAIDJAN: Mr Bakhram KHALILOV, Senior adviser, Division on legislation and legal expertise of the President Office, 19 Istiglaliyyat Str. BAKU 370000
BELGIUM/BELGIQUE: Apologised/Excusé
BULGARIA/BULGARIE: -
CROATIA/CROATIE: Mr Edmond MILETIĆ, Assistant Minister, Ministry of Justice, Administration and Local Self-Government, Republike Austrije 14 - 10000 ZAGREB
CYPRUS/CHYPRE: Mr Yiannakis LAZAROU, Senior Counsel of the Republic, Law Office, 1403 NICOSIA
CZECH REPUBLIC/RÉPUBLIQUE TCHÈQUE: Mrs Taisia ČEBIŠOVÁ, Professor, Faculty of Law, Charles University, Curieovych 7 – 110 00 PRAGUE 1
DENMARK/DANEMARK: Apologised/Excusé
ESTONIA/ESTONIE: Mrs Ülle MADISE, Head of the Public Law Department, Ministry of Justice, 5a Tonismägi Street - 5191
FINLAND/FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - 00131 HELSINKI
FRANCE: -
GEORGIA/GEORGIE: -
GERMANY/ALLEMAGNE: -
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
ICELAND/ISLANDE: Mr Kristjan Andri STEFANSSON, Head of Division, Legal Affairs, Prime Mnister's Office - 150 REYKJAVIK
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 (1st Vice-Chairman/1re Vice-Président)
LATVIA/LETTONIE: Mrs Jautrite BRIEDE, Consultant of the Ministry of Justice, Lecturer of administrative law, Raina Bulv. 19 - LV-1536 RIGA
LIECHTENSTEIN: -
LITHUANIA/LITUANIE: -
LUXEMBOURG: -
MALTA/MALTE: -
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
NETHERLANDS/PAYS-BAS: -
NORWAY/NORVEGE: Mr Johannes OPSAHL, Higher Executive Officer, Legislation Department, The Royal Ministry of Justice, 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 – (2nd Vice-Chairwoman/2e Vice-Présidente)
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 de l'élaboration des actes normatifs, des études et de la documentation, Ministère de la Justice, 17 rue Apolodor, secteur 5 – BUCAREST
SLOVENIA/SLOVÉNIE: Mr Samo GODEC, Academy of administration, Kotnikova 8 - 1000 LJUBLJANA
SPAIN/ESPAGNE: Mr Jesus BESTEIRO RIVAS, Avocat d'Etat, Plaza del Seminario n° 1, 40071 SEGOVIA
SWITZERLAND/SUISSE: M. Philippe GERBER, Docteur en droit, Division I de la Législation, Office fédéral de la justice, Département fédéral de justice et police, Bundeshaus West, 3003 BERNE
TURKEY/TURQUIE: Mr Ahmet IMIRZALIOĞLU, judge, Ministry of Justice, General Directorate of International Law and Foreign Affairs, Milli Müdafaa Cad. No 22 - 06440 Bakanliklar - ANKARA
UKRAINE: Mrs Olena SEMYORKINA, Director of the Constitutional and Administrative Law Department, Ministry of Justice, 13 Horodetsky Str., KYIV 01001
UNITED KINGDOM/ROYAUME-UNI: Apologised/Excusé
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
JAPAN/JAPON : M. Pierre DREYFUS, Assistant, Consulat Général du Japon, 20 place des Halles - Bureaux Europe - 67000
ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD)/ORGANISATION DE COOPERATION ET DE DEVELOPPEMENT ECONOMIQUE (OCDE) : Apologised/Excusé
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.kojemyakov@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)
M. Daniel CANGEMI, Responsible for co-operation programmes in the field of administrative law and justice/Responsable pour les programmes de coopération dans le domaine du droit et de la justice administratifs (Tel: 33 3 88 41 22 24, Fax: 33 3 88 41 27 64, E-mail: nicola-daniel.cangemi@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 )
APPENDIX II
AGENDA
1. Opening of the meeting by Mr. NIEMIVUO, Chair of the CJ-DA CJ-DA (2000) 8
2. Adoption of the Agenda CJ-DA (2001) OJ 1 rev
3. Statement by the Secretariat
4. Programme of activities of the CJ-DA for 2001
4.1 The execution of decisions in the administrative field
Report of the 1st meeting of the CJ-DA-GT (Strasbourg, 19-21 March 2001)
|
CJ-DA-GT (2001) 4
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Report of the 2nd meeting of the CJ-DA-GT (Strasbourg, 4-5 October 2001)
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CJ-DA-GT (2001) 7
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Collection of States' replies to the questionnaire
|
CJ-DA-GT (2001) 5
CJ-DA-GT (2001) 5
Addenda 1 - 4
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Draft report on the execution of decisions in the field of administrative law
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CJ-DA-GT (2001) 6
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Selected texts of the Committee of Ministers in the field of administrative law and justice
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CJ-DA-GT (2001) Inf. 1
|
4.2 The role of regulators in the context of increasing privatisation
5. Programme of activities of the CJ-DA for 2002
The possibility and extent of judicial control of administrative acts CJ-DA (2001) 3
6. Election of the Chair and of the Vice-Chairs CJ-DA (2001) 4
7. Calendar of next meetings
8. Other business
APPENDIX III
ITEMS AGREED UPON BY THE CJ-DA FOR INCLUSION IN A PRELIMINARY DRAFT RECOMMENDATION OF THE COMMITTEE OF MINISTERS ON EXECUTION OF DECISIONS IN THE ADMINISTRATIVE FIELD
Reference to pertinent instruments of the Council of Europe (see document CJ-DA-GT (2001) Inf.1.) and Resolution No.3 of the 24th Conference of European Ministers of Justice.
I. Execution of decisions of administrative authorities vis-à-vis private persons
a. Administrative decisions are intended to modify the existing legal order.
Private persons should implement administrative decisions voluntarily, notwithstanding the protection of their rights and interests
b. Generally speaking, the implementation of administrative decisions is not necessarily subject to prior control by the courts, notwithstanding the protection of the rights and interests of the private persons.
c. If administrative decisions entail obligations for private persons, they should implement the decision only if it has been brought to their knowledge in accordance with the law.
d. Where the introduction of an administrative appeal does not entail automatic suspension, private persons should be able to request administrative authorities, within reasonable time-limits, the suspension of the implementation of the decision subject to appeal, in order to ensure, on the one hand, that private persons are able to protect their rights and on the other hand, that the administrative authorities’ action is not blocked unnecessarily. In deciding on the request of suspension, administrative authorities should also take into account the interests of third persons.
e. Private parties should be able to request judicial authorities suspension of the implementation of an administrative decision (see Recommendation No. R (89) 8 of the Committee of Ministers to Member States on Provisional Court Protection in Administrative Matters)6.
f. The use of enforcement by administrative authorities should be subject to the following guarantees:
1. enforcement should be expressly provided for by legislation;
2. private persons against whom the decision is enforced should be preliminarily informed of the enforcement procedure;
3. as far as possible, private persons against whom the decision is enforced should have the possibility to comply with the decision within reasonable time;
4. the enforcement measures to be used and their cost should be proportional to the goal to be achieved.
g. In case of urgency, enforcement should be justified by administrative authorities and the conditions under points f.2 and f.3. do not apply. The urgency should determine the extent of the enforcement procedure.
h. Generally speaking, enforcement of administrative decisions should not necessarily be subject to prior control by the courts, notwithstanding the protection of the rights and interests of the private persons, which should have the possibility provided for in paragraph d.
II. Execution of judicial decisions vis-à-vis administrative authorities7
a. Judicial decisions in the administrative field should be effectively enforced/or be recognised as compulsory.
b. [Powers of the judge: annulment, imposing pecuniary sanctions]8.
c. Where an administrative decision [which adversely affects private persons] is annulled [and where courts cannot take a decision instead of administrative authorities] administrative authorities should take the necessary measures regarding the execution of the judicial decision, particularly regarding the rights of private persons9.
d. Where administrative authorities are under the obligation to pay a sum of money, they should comply with this obligation as soon as possible. Interest resulting from non-execution by administrative authorities of monetary sanctions against them should be calculated in the same way whether the debtor is a private person or an administrative authority.
e. In this connection, provision should be made in the public budget for effective compensation for damages linked to the activities of administrative authorities [or to allow private persons to benefit from the possibility of compensation] (See Recommendation No. R (84) 15 of the Committee of Ministers to Member States relating to Public Liability).
f. Likewise, in the case of non-execution of judicial decisions vis-à-vis administrative authorities, it should be possible to seize [private] property of the administrative authorities in so far as it is not contrary to public interest.
APPENDIX IV
DRAFT 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. In the framework of an activity regarding the execution of decisions in the administrative field, including decisions by administrative authorities as well as decisions by courts in the administrative field,
a. to identify key issues by conducting a survey regarding the situation in member States of the Council of Europe,
b. to prepare a summary report on the basis of the information gathered,
c. to consider the feasibility and usefulness of preparing an international instrument in this field, namely a draft recommendation of the Committee of Ministers.
2. In the framework of an activity regarding the possibility and scope of judicial review of administrative decisions in the member States,
a. to undertake preparatory work with a view to examining the situation in the Council of Europe member States, in the light of the case-law of the European Court of Human Rights,
b. to make recommendations to the Committee of Ministers on the basis of the undertaken activities.
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.
b. The Council of Europe's budget bears travelling and subsistence expenses for one expert per member State.
c. The European Community may send a representative, without the right to vote or defrayal of expenses, to meetings of the Committee.
d. 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, Mexico.
e. The Observers to the CJ-DA may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee: Bosnia and Herzegovina, Federal Republic of Yugoslavia, 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.
7. Duration:
These terms of reference shall be reviewed before 31 December 2003.
