CJ-DA (2002) 6
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA)
15th meeting
Strasbourg, 27, 28, 29 November 2002
MEETING REPORT
Document prepared by the Secretariat
Directorate General of Legal Affairs
1. Opening of the meeting by Mr Ragonesi, Chair of the CJ-DA
1. The 15th meeting of the Project Group on Administrative Law (CJ-DA) was opened by its Chair, Mr Ragonesi.
2. The list of participants appears in Appendix I to this report.
3. The Chair welcomed the new representatives of Bulgaria, Germany, Italy, the Netherlands, Norway, Portugal, the Russian Federation, Slovakia, Turkey and the observers from the European Federation of Administrative Judges. He also paid tribute to the major contribution made to the work of the CJ-DA by its former Chair, Mr Niemivuo, and the former representative of Portugal, Mr Silveira.
4. The CJ-DA approved the draft report of the 14th meeting of the CJ-DA (document CJ-DA (2001) 5).
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 told the CJ-DA that, on 24 April 2002, Bosnia and Herzegovina had become the 44th member state of the Council of Europe.
7. The Secretariat also reported on the decision by the Committee of Ministers to set up a European Commission for the Efficiency of Justice (CEPEJ), to be operational from early 2003. This Commission, which would be open to all member states, applicant states and observers, as well as to the European Commission, would be responsible inter alia for compiling Europe-wide statistics on the functioning of the justice system, identifying practical ways of improving the efficiency and operation of member states’ judicial systems and, where appropriate, suggesting to the steering committees and in particular the European Committee on Legal Co-operation (CDCJ) areas in which they might, if they felt it was appropriate, prepare new international legal instruments or amendments to existing instruments, for adoption by the Committee of Ministers.
8. The Secretariat also reported on the first Conference of Presidents of Supreme Administrative Courts in Europe held in Strasbourg on 7 and 8 October 2002, on the possibility and scope of judicial review of administrative decisions (see item 4.2.a. below).
9. Finally, the CDCJ, at its 76th plenary meeting held in Strasbourg from 4 to 7 December 2001, had adopted the revised terms of reference proposed by the CJ-DA for its activities over the period 2002-2003. These terms of reference comprised two activities, one concerning the execution of decisions in the field of administrative law and the other the possibility and scope of judicial review of administrative decisions.
4. Programme of activities of the CJ-DA for 2002
4.1. Execution of decisions in the field of administrative law
a. Draft Recommendation of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law
10. The CJ-DA considered the draft recommendation of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law adopted by its working group, the CJ-DA-GT, at its previous meeting (document CJ-DA (2002) 1). At that meeting, the CJ-DA had held an exchange of views on the following items:
Weighting of interests involved when deciding a request to suspend enforcement
11. Some members of the CJ-DA felt that administrative authorities and judicial authorities did not give the same weight to the different interests involved when deciding requests to suspend enforcement: in particular, administrative authorities had to consider the public interest whereas judicial authorities, depending on the legal system, were not always bound to do so. The Group members decided to tighten the wording of I.1.d of the draft recommendation in order to reflect this idea.
Use of enforcement as a last resort
12. The CJ-DA-GT had included among the various guarantees to which the use of enforcement must be subject, a sub-paragraph iii., with a choice of two wordings, under which the decision to use such a procedure:
- should take into account the possibility of mediation, as well as other means of obtaining implementation of the decision in a given case or
- should be used only in the event of failure of all other means for obtaining voluntary implementation of the decision, except when it was materially impossible to use such means.
The second option was rejected out of hand by all the CJ-DA members and attention turned to the first option. Some states welcomed it, as it served to reinforce the idea that enforcement was to be used only as a last resort. Other delegations argued that this proposal did not reflect the reality of the enforcement procedure as it currently existed in most member states, and that it introduced an extra stage in the proceedings. The proposal would be difficult to implement in practice, moreover, and would require administrative authorities to prove that they had in fact tried mediation or other means of securing voluntary implementation of the decision. In their view, the draft should simply recommend that administrative authorities be given the opportunity to come to an agreement with private persons or take account of their comments concerning the practicalities of the implementation procedure. The CJ-DA eventually opted for this solution, deciding to delete sub-paragraph iii. and to incorporate this idea into the sub-paragraph on the enforcement measures to be used.
Notion of third parties with an interest in the enforcement procedure
13. The CJ-DA went on to discuss the notion of third parties with an interest in the enforcement procedure, with particular reference to point 1.2.d., which granted such parties the option of lodging an appeal if the administrative authorities chose, by virtue of its discretionary power, not to use an enforcement procedure and to therefore allow one of its decisions to remain unimplemented. Should anyone with an interest, even if only indirect, in the implementation of this decision be able to apply to the courts, or should that right be reserved for the persons whose interests were protected by the non-implemented decision? The CJ-DA chose the second option and paragraph d. was amended accordingly.
Interest payable if administrative authorities fail to implement decisions entailing an obligation to pay a sum of money
14. A discussion got under way on paragraph II.2.b., which concerned the interest payable by administrative authorities if they failed to implement decisions entailing an obligation to pay a sum of money. Most of the members favoured a wording to the effect that the interest payable in such cases should be no less than that payable by a private person in a similar situation, but some delegations felt that this was contrary to the principle of equality. Following discussion, the CJ-DA agreed to choose the first option, as this left it to states to decide whether to claim equivalent or greater interest from administrative authorities.
Measures to ensure implementation by administrative authorities of decisions entailing an obligation to pay a sum of money
15. The CJ-DA emphasised the importance of the principle embodied in II.2.c. of the draft recommendation, according to which member states must ensure that an administrative authority’s lack of funds did not prevent it from meeting its obligation to pay a sum of money. Depending on the national systems and circumstances, possible measures might include a special budgetary heading or ad hoc budgetary funds.
16. The group also discussed the possibility of seizing certain state properties. The kind of property that could be seized varied between the member states and in at least one country, Norway, it was not permitted to seize state properties. The CJ-DA accordingly decided to mention the seizure of state properties, which was an important measure, while making it clear, however, that this option was to be exercised within the limits prescribed by national law.
17. Following the discussion, the CJ-DA adopted by consensus the draft recommendation as set out in Appendix III and decided to submit it to the CDCJ for adoption and transmission to the Committee of Ministers.
b. Draft explanatory memorandum to the Recommendation of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law
18. The CJ-DA discussed the draft explanatory memorandum to the Committee of Ministers Recommendation on the execution of administrative and judicial decisions in the field of administrative law. It introduced some amendments, but owing to lack of time, was unable to complete its examination. It was accordingly decided that, after the meeting, the Secretariat would send members a revised version of the draft, incorporating the changes agreed at the meeting and including any changes arising from the amendments made to the draft recommendation. Member states would have until 15 January 2003 to send the Secretariat written proposals for amendments, so that it could prepare a final draft to be submitted to the CDCJ for adoption.
4.2. Possibility and scope of judicial review of administrative decisions
a. First conference of the Presidents of Supreme Administrative Courts in Europe on the possibility and scope of judicial review of administrative decisions
19. The Secretariat reported on the first conference of Presidents of Supreme Administrative Courts in Europe, held in Strasbourg on 7-8 October 2002. In view of the need to link the two areas of Council of Europe activity, namely the intergovernmental sector and co-operation programmes, the theme chosen for the conference incorporated one of the subjects included in the CJ-DA’s terms of reference for 2002-2003. The conference had been well attended and the participants had welcomed the setting-up of this new forum and expressed the hope that similar meetings of presidents and judges of supreme administrative courts in Europe would be held in future on topics of mutual interest.
20. The conference material was or would shortly be available on the Council of Europe web site at the following address: http://www.coe.int/admin.
21. The general rapporteur for the conference, Professor David Harris, went on to describe the reports presented and the discussions held during the conference, much of which had focused on the implications of ECHR case-law for the judicial review of administrative decisions. He concluded by outlining the Conclusions which the participants had adopted at the close of the discussions and which appear in Appendix IV to this report.
22. In the light of these reports, the Chair urged the CJ-DA to decide to continue this activity, while keeping the CJ-DA-GT in its current shape and form.
b. Follow-up to the activity and composition of the CJ-DA-GT for 2003
23. The CJ-DA held an exchange of views on the action to be taken in the wake of the conference of Presidents of Supreme Administrative Courts in Europe and in particular on whether one or more draft recommendations of the Committee of Ministers should be drawn up on the judicial review of administrative decisions, or on certain aspects thereof.
24. The Finnish delegation praised the calibre of the conference conclusions and reports, which provided a mine of information for the CJ-DA to draw on in its future work.
25. All the CJ-DA members emphasised the importance of judicial review and expressed themselves in favour of preparing a draft recommendation on this subject or on one of the aspects thereof.
26. The Netherlands representative observed that the Council of Europe had, in the past, organised numerous bilateral and multilateral activities on the subject of judicial review of administrative decisions, in particular under its co-operation programmes. While some recommendations addressed certain aspects of judicial review of administrative decisions, however, none dealt with the subject in general. He therefore hoped that the CJ-DA would draft a general recommendation, which would combine all the previous work accomplished the Council of Europe in this area and which would be particularly helpful for states in the process of setting up or reforming their administrative justice systems.
27. Referring to the conclusions of the Conference of Presidents of Supreme Administrative Courts in Europe, the Netherlands representative further expressed the view that this draft recommendation should focus on specific aspects of the administrative justice system, namely the purpose and scope of judicial review, the procedure and effectiveness of the review.
28. The Swiss representative agreed and wondered what the aim of such a draft recommendation should be: there were, he argued, three options:
- a draft recommendation setting the current European standard in the matter, which would have the disadvantage of being not very innovative;
- a draft embodying the standards derived from the case-law of the European Court of Human Rights, which was liable to become quickly outmoded because the case-law was constantly changing;
- a draft mapping out the administrative justice system as it ought to develop over the coming years. He himself favoured this third option.
29. After discussing the matter, the CJ-DA decided to instruct its working group to prepare a preliminary draft general recommendation on the judicial review of administrative decisions. It further asked the CJ-DA-GT to begin considering which aspects of this review should be emphasised in the preliminary draft and to report back to it at the next meeting.
30. The CJ-DA went on to discuss the composition of the CJ-DA-GT for 2003, for the purpose of implementing the activity on judicial review.
31. In this connection, the Secretariat told the CJ-DA that, owing to budgetary constraints, the CJ-DA plenary meeting for 2003 had been marked “for the record”. Instead, the budget provided for three meetings of an enlarged, 12-member working group. Of these twelve members, four were ex officio members, namely the Chair of the CJ-DA-GT, the Chair and Vice-Chair of the CJ-DA and the scientific expert. The other 8 were to be appointed by the CJ-DA. It was further pointed out that CJ-DA-GT meetings were open to all members of the CJ-DA, at their own expense.
32. In order to ensure a balanced geographical spread within the CJ-DA-GT, the CJ-DA decided to invite the representatives of the Czech Republic, Greece, Latvia, the Netherlands, Portugal, Romania, Slovenia and Switzerland to join the CJ-DA-GT for 2003.
5. Programme of activities of the CJ-DA for 2003: CJ-DA’s opinion on a German proposal for a draft Convention on administrative aid and legal assistance to enforce writs of execution
33. The German delegation said that it was withdrawing its proposal.
6. Election of the Chair and Vice-Chair
34. Under Article 17 of Appendix 2 to Resolution (76) 3 of the Committee of Ministers, the CJ-DA re-elected Mr RAGONESI (Italy) Chair and Ms DALY (Ireland) Vice-Chair for a one-year term expiring on 31 December 2003. It also re-elected Mr NIEMIVUO (Finland) Chair of the CJ-DA-GT for the same period.
7. Forthcoming meetings
35. The CJ-DA decided that the next meeting of the CJ-DA-GT would be held from 10 to 12 March 2003 in Strasbourg.
36. With regard to its forthcoming plenary meeting, the CJ-DA agreed, depending on the budget resources available in 2003, to hold it either in November 2003 or at the very beginning of 2004.
8. Other business
37. The Secretariat drew the CJ-DA’s attention to the Programme de recomposition de l’action publique (document CJ-DA (2002) Inf.1) prepared by the EUROPA association, as a possible source of inspiration when discussing new activities.
ANNEXE I
LIST OF PARTICIPANTS
AUSTRIA / AUTRICHE
Mr Stephan LEITNER, Bundeskanzleramt-Verfassungsdienst, WIEN
AZERBAIJAN / AZERBAIDJAN
Mr Bakhram KHALILOV, Senior advisor, Division on legislation and legal expertise, Executive Office of the President of the Republic of Azerbaijan, BAKY
BELGIUM / BELGIQUE Apologised/Excusé
BULGARIA / BULGARIE
Ms Rumiana PAPAZOVA, Judge, Supreme Administrative Court, 1000 SOFIA
CROATIA / CROATIE
Mr Edmond MILETIĆ, Assistant Minister, Ministry of Justice, Administration and Local Self-Government, Republike Austrije 16, 10000 ZAGREB
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE
Mrs Taisia ČEBIŠOVÁ, Associate Professor, Faculty of Law, Charles University, PRAGUE
FINLAND / FINLANDE
Mr Matti NIEMIVUO, Deputy Director General, Ministry of Justice
GERMANY / ALLEMAGNE
Dr Eva BRAUNS, Oberregierungsrätin, Bundesministerium des Innern, BERLIN
GREECE / GRECE Apologised/Excusé
HUNGARY / HONGRIE
Dr Imre VEREBÉLYI, Envoy Extraordinary and Minister Plenipotentiary, Delegation to OCDE, PARIS
ICELAND / ISLANDE
Mr Kristjan Andri STEFANSSON, Head of Division, Legal Affairs, Prime Minister's Office, REYKJAVIK
IRELAND / IRLANDE
Mrs Caroline DALY, Advisory Cousel, Office of the Attorney General, DUBLIN (Vice-Chair of the CJ-DA / Vice-Présidente du CJ-DA)
ITALY / ITALIE
Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, ROME (Chair of the CJ-DA / Président du CJ-DA)
M. Paolo TROIANO, Segretario delegato per il Consiglio di Stato, ROMA
LATVIA / LETTONIE
Mrs Jautrite BRIEDE, Lecturer of Administrative Law, Faculty of Law University of Latvia, RIGA
LIECHTENSTEIN Apologised/Excusé
MOLDOVA
Mme Maria SECRIERU, Chef de Section du Régime Constitutionnel et des Autorités publiques, Département de la législation, Ministère de la Justice, CHISINĂU
NETHERLANDS / PAYS-BAS
Mr Theo SIMONS, Senior Vice-President of the Administrative Court of Appeal, DA UTRECHT
NORWAY / NORVEGE
Ms Kristin RYAN, Senior Executive Officer, Legislation Department, The Royal Ministry of Justice OSLO
POLAND / POLOGNE
Mme Teresa GÓRZYŃSKA, Maître de conférences à l’Institut des Sciences juridiques et à l’Académie Polonaise des Sciences, Professeur à la Haute Ecole de Gestion, VARSOVIE
PORTUGAL
Prof. Doutor Mário AROSO de ALMEIDA, Professeur universitaire, PORTO
ROMANIA / ROUMANIE
Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction de l'élaboration des actes normatifs, des études et de la documentation, Ministère de la Justice, BUCAREST
RUSSIAN FEDERATION / FEDERATION DE RUSSIE
Mr Vladimir GUKOV, Head of International Law Department, Supreme Court, MOSCOW
SAN MARINO / SAINT MARIN
SLOVAK REPUBLIC / RÉPUBLIQUE SLOVAQUE
Dr Sergej KOHUT, Chairman of the Administrative Collegium of the Supreme Court, BRATISLAVA
SLOVENIA / SLOVÉNIE
Mr Samo GODEC, State Under-Secretary, Academy of Administration, LJUBLJANA
SPAIN / ESPAGNE
Mr Jesus BESTEIRO RIVAS, Avocat d'Etat, SEGOVIA
SWITZERLAND / SUISSE
M. Philippe GERBER, Collaborateur scientifique, Division I de la Législation, Office fédéral de la justice, Département fédéral de justice et police, BERNE
TURKEY / TURQUIE
Mme Jale KALAY, Magistrat, Ministère de la Justice, ANKARA
Mr Aydin Sefa AKAY, Conseiller Juridique, Représentation Permanente de la Turquie auprès du Conseil de l’Europe ? STRASBOURG, France
UKRAINE
Mrs Olena SEMYORKINA, Director of the Constitutional and Administrative Law Department, Ministry of Justice, KYIV
UNITED KINGDOM / Royaume-Uni Apologised/Excusé
EXPERT SCIENTIFIQUE
Prof. David HARRIS, Professor of Public International Law, Nottingham University, University Park, NOTTINGHAM
EUROPEAN FEDERATION OF ADMINISTRATIVE JUDGES / FEDERATION EUROPEENNE DES JUGES ADMINISTRATIFS
M. Pierre VINCENT, Vice Président de la Fédération Européenne des Juges Administratifs, Président-Assesseur à la Cour Administrative d’Appel de Nancy, Cour administrative d'appel, Nancy
Mme Elisabeth ROBINO, Conseiller, Tribunal Administratif de Strasbourg
OBSERVERS / OBSERVATEURS
HOLY SEE / SAINT SIEGE
Mme Odile GANGHOFER, Docteur en droit, Mission Permanente du Saint-Siège, STRASBOURG
JAPAN / JAPON
M. Pierre DREYFUS, Assistant, Consulat Général du Japon, STRASBOURG
OBSERVER STATES / ETATS OBSERVATEURS
FEDERAL REPUBLIC OF YUGOSLAVIA / RÉPUBLIQUE FÉDÉRALE DE YOUGOSLAVIA
Mr Igor JOVICIC, Deputy Secretary General of the Federal Government of the FRY, NOVI BEOGRAD
INTERNATIONAL COMMISSION ON CIVIL STATUS / COMMISSION INTERNATIONALE DE L’ETAT CIVIL (CIEC)
Apologised/Excusé
SECRETARIAT
Directorate General of Legal Affairs, Department of Public Law/
Direction Générale des Affaires Juridiques, Service du droit public
www.coe.int/cj-da
M. Alexey KOZHEMYAKOV, Head of the Division / Chef de la Division
Mme Sophie MEUDAL-LEENDERS, Secretary of the CJ-DA / Secrétaire du CJ-DA
Mme Judith LEDOUX, Assistante administrative/Administrative assistant, Department of Public Law / Service du droit public
Mme Frédérique BONIFAIX, Assistant / Assistante, Department of Public Law / Service du droit public
INTERPRETATION
Mme Monique PALMIER
Mme Julia TANNER
Mme Sara WEBSTER
APPENDIX II
AGENDA
1. Opening of the meeting by Mr RAGONESI, Chair of the CJ-DA CJ-DA (2001) 5
2. Adoption of the agenda CJ-DA (2002) OJ1 rev
3. Statement of the Secretariat
4.1. Programme of activities of the CJ-DA for 2002
Execution of decisions in the field of administrative law
Report ot the first meeting of the CJ-DA-GT
(Strasbourg, 19-21 March 2001) CJ-DA-GT (2001) 4
Report of the 2nd meeting of the CJ-DA-GT
(Strasbourg, 4-5 October 2001) CJ-DA-GT (2001) 7
Draft report of the 3rd meeting of the CJ-DA-GT
(Strasbourg, 27 February –1st March 2002) CJ-DA-GT (2002) 3
Collection of State’s answers to the questionnaire CJ-DA (2002) 5
Draft report on the execution of decisions in the field of
Administrative Law CJ-DA-GT (2001) 6
Selected texts of the Committee of Ministers on the
execution of decisions in the field of administrative law CJ-DA-GT (2001) Inf 1
Draft recommendation on enforcement and its
draft explanatory memorandum CJ-DA (2002) Inf 2
a. Draft Recommendation of the Committee of Ministers
on the execution of administrative and judicial
decisions in the field of administrative law CJ-DA (2002) 1
b. Draft explanatory memorandum to the recommendation
of the Committee of Ministers on the execution of administrative
and judicial decisions in the field of administrative law CJ-DA (2002) 2
4.2. Possibility and scope of judicial review of administrative decisions
Draft report of the 4th meeting of the CJ-DA-GT
(Strasbourg, 30 August 2002) CJ-DA-GT (2002) 5
a. First conference of the Presidents of Supreme Administrative
Courts in Europe on “the possibility and scope of the judicial
control of administrative decisions”, Strasbourg, 7-8 October 2002 PSAC - conclusions
b. Follow-up of the activity and composition of CJ-DA-GT for 2003
5. Programme of activities of the CJ-DA for 2002-2003:
Opinion of the CJ-DA on a german proposal for a draft
Convention on administrative aid and legal assistance
to enforce public law claims. (to be confirmed) CJ-DA (2002) 3
6. Election of the Chair and Vice-Chair CJ-DA (2002) 4
7. Calendar of next meetings
8. Other business
Programme de recomposition de l’action publique CJ-DA (2002) Inf 1
APPENDIX III
DRAFT RECOMMENDATION OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON EXECUTION OF ADMINISTRATIVE AND JUDICIAL DECISIONS IN THE FIELD OF ADMINISTRATIVE LAW
RECOMMENDATION No. R (XX) XX
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON EXECUTION OF ADMINISTRATIVE AND JUDICIAL DECISIONS IN THE FIELD OF ADMINISTRATIVE LAW
(adopted by the Committee of Ministers on …
at the …. meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe;
Considering that the aim of the Council of Europe is to achieve greater unity between its members;
Considering that it is necessary to maintain the trust of private persons in the administrative and judicial system and that, for this reason, both administrative authorities’ decisions entailing obligations for private persons and judicial decisions in the field of administrative law recognising rights for private persons should be executed;
Considering that the action of the administrative authorities presumes their decisions are efficiently implemented by private persons;
Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;
Recalling in this respect the general principles governing the protection of the individual in relation to the acts of administrative authorities as set out in Resolution No. (77) 31 and the principles concerning the exercise of discretionary powers by administrative authorities set out in Recommendation No. R (80) 2;
Recalling also Recommendation No. R (89) 8 on provisional court protection in administrative matters, requiring the competent judicial authority, if the execution of an administrative decision may cause severe damage to the private persons to whom it is addressed, to take appropriate measures of provisional protection;
Considering that the efficiency of justice requires that judicial decisions in the field of administrative law be executed, in particular when they are addressed to administrative authorities;
Recalling in this respect the rights protected by the European Convention on Human Rights, of which the execution of court decisions within a reasonable time must be regarded as an integral part;
Recalling also Recommendation No. R (84) 15 relating to public liability, recommending that member States set up appropriate machinery to ensure that a lack of funds does not prevent obligations of public authorities in the field of public liability from being satisfied;
Recalling, finally, Resolution No. 3 of the 24th Conference of European Ministers of Justice, held in Moscow from 4 to 5 October 2001 on “General approach and means of achieving effective enforcement of judicial decisions”, inviting the Council of Europe to “identify common standards and principles at a European level for the enforcement of court decisions”;
Recommends that the governments of member States ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in the Appendix to this Recommendation.
Appendix to Recommendation n° R (XX) XX
I. Execution of administrative decisions regarding private persons
1. Implementation
a. Private persons must comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by judicial authorities of their rights and interests.
b. Where it is not provided for by law that the introduction of an appeal against a decision does entail automatic suspension, private persons should be able to request an administrative or judicial authority to suspend the implementation of the contested decision in order to ensure the protection of their rights and interests.
c. This possibility should be exercised within reasonable time limits in order to avoid unnecessarily blocking the administrative authorities’ action and to ensure legal certainty.
d. In deciding on the request for suspension, the public interest and the rights and interests of third persons shall be taken into account by the administrative authority and, unless it is excluded by law, by the judicial authority.
2. Enforcement
a. The use of enforcement by administrative authorities should be subject to the following guarantees:
i. enforcement is to be expressly provided for by law;
ii. private persons against whom the decision is to be enforced are to be given the possibility to comply with the administrative decision within reasonable time;
iii. the use of and the justification for enforcement are to be brought to the attention of the private persons against whom the decision is to be enforced;
iv. the enforcement measures used including any accompanying monetary sanctions are to respect the principle of proportionality.
b. In urgent, duly justified cases, the use of enforcement does not require that the administrative authorities give private persons a reasonable period of time to comply with the judicial decision. The extent of the enforcement procedure will be determined by the urgency of the case.
c. Private persons should be able to lodge an appeal before a judicial authority against the enforcement procedure in order to ensure the protection of their rights and interests.
d. If the administrative authority does not use an enforcement procedure, those whose rights and interests are protected by the non-implemented decision should be able to apply to a judicial authority.
II. Execution of judicial decisions regarding administrative authorities
1. General provisions
a. Administrative authorities must implement judicial decisions within a reasonable period of time. In order to give full effect to these decisions, they should take all necessary measures in accordance with the law.
b. In cases of non-implementation by an administrative authority of a judicial decision, an appropriate procedure should be provided to seek execution of that decision, in particular through an injunction or a coercive fine.
c. Administrative authorities will be liable where they refuse or neglect to implement judicial decisions. Public officials in charge of the implementation of judicial decisions may also be held individually liable in disciplinary, civil or criminal proceedings if they fail to implement them.
2. Execution of judicial decisions entailing an obligation to pay a sum of money
a. Where administrative authorities are obliged to pay a sum of money, they must comply with this obligation within a reasonable period of time.
b. Interest payable by an administrative authority for not implementing judicial decisions entailing an obligation to pay a sum of money should be no less than interest payable by a private person to an administrative authority in a similar situation.
c. It should be ensured that the administrative authority has appropriate provision to avoid a situation whereby a lack of funds would prevent it meeting its obligation to pay a sum of money.
d. In the case of non-implementation by administrative authorities of judicial decisions entailing an obligation to pay a sum of money, it should also be possible to seize the property of the administrative authorities within the limits prescribed by law.
APPENDIX IV
FIRST CONFERENCE OF THE PRESIDENTS
OF SUPREME ADMINISTRATIVE COURTS IN EUROPE
On “the possibility and scope of the judicial control of administrative decisions”
The first Conference of Presidents and judges of Supreme Administrative Courts in Europe was held in Strasbourg on 7-8 October 2002. The theme of the Conference was “The Possibility and Scope of Judicial Review of Administrative Decisions in the Member States”. This Conference was organised by the Council of Europe within the framework of the co-operation programme to strengthen the rule of law, in co-operation with the Project Group on Administrative Law (CJ-DA).
Participants welcomed this initiative, in that it provided a useful forum for exchange of ideas between judges dealing with administrative cases. They expressed the wish that similar conferences be organised in the future, on topics of common interest.
Participants held discussions based upon the reports presented to them and, at the close of proceedings, adopted the following
CONCLUSIONS
Judicial review of administrative action is an essential element of the rule of law and human rights which are concepts that are central to the legal orders of Council of Europe member States.
All administrative acts should be subject to judicial review. This review applies to the exercise of discretionary power. No exception applies to administrative silence, or inaction. In some legal systems, administrative sanctions may be imposed, involving among others the imposition of a fine or imprisonment, by a public official for regulatory or other minor offences. In all cases, these sanctions should be subject to judicial review.
Other methods of reviewing administrative acts, which may include internal review within the administration and reliance upon the institution of the ombudsman, are complementary to judicial review. These other methods, as well as the use of alternative means of resolving disputes, can also help to relieve the excessive workload of courts and therefore should be encouraged, in accordance with Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties.
The organisation of judicial review and of the other means of reviewing the action of administrative authorities, as well as the combination of these means, varies greatly among member States, depending upon their historical and legal traditions. Judicial review may be exercised by special administrative courts or tribunals or by the ordinary courts, or by a combination of the two. Similarly, the remedies available for judicial review may be tailor-made or remedies that are available generally, or both.
Regardless of these organisational differences, judicial review of administrative acts should follow common standards to be found in the legal systems of member states or the procedural guarantees directly derived from the European Convention on Human Rights, notably Articles 6 and 13.
Judicial review should be widely accessible to natural and legal persons. This requires in particular that fees are not set at a level that discourages applications. If necessary, an appropriate system of legal and financial aid should be provided.
The independence and impartiality of the court exercising judicial review should be guaranteed. Independence can be guaranteed, as foreseen in Recommendation (94) 12 on the independence, efficiency and role of judges, by recruiting a sufficient number of judges, security of tenure, providing adequate training and appropriate support staff and equipment. Appropriate status and remuneration, commensurate with the dignity of the profession and burden of responsibilities, can also reinforce the judges’ authority and prestige, and thereby help ensure that their judgments are implemented, particularly by administrative authorities.
Judicial review should respect and ensure the procedural fair hearing guarantees of Article 6(1), including in general access for the parties to the administrative file. Judicial review should occur within a reasonable time and include a public hearing.
The court should have competence to examine all the factual and legal issues relevant for the consideration of the case subject to review.
Judicial review should be effective. This requires that the court has power to adopt provisional measures of protection pending the outcome of the review. If the application for review is successful, the court should be competent to prohibit the taking of an administrative decision, to quash a decision that has already been taken, or to require that a duty be performed. The court should also have jurisdiction to award compensation in appropriate cases.
It is an important aspect of the right to a court that decisions of the court are implemented. The court should have appropriate powers, such as the power to sanction the administrative authority, to ensure that this occurs.
The participants noted that the European Convention on Human Rights was originally not meant to be applied to administrative litigation. The case-law of the European Court of Human Rights partly remedied this situation and the participants expressed the wish that it follow on these lines.
The participants agreed on the value of pursuing the consideration of the judicial control of administrative acts and supported the implementation of the activity in this field by the Project Group on Administrative Law (CJ-DA) of the Council of Europe.
The participants expressed their thanks to the rapporteurs for their contributions and to the Council of Europe for the excellent organisation of the Conference.
