Strasbourg, 05/10/01
CJ-DA-GT (2001) 7
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA-GT)
2nd meeting
Strasbourg, 4 - 5 October 2001
MEETING REPORT
Secretariat memorandum prepared by the
Directorate General of Legal Affairs
1. Opening of the meeting by Mr Niemivuo, Chair of the CJ-DA
The 2nd meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT) was opened by the Chair, Mr Niemivuo.
The list of participants is set out in Appendix I to this report.
The Chair welcomed the participants and in particular the delegate of Azerbaijan, who was taking part in a meeting of the CJ-DA-GT for the first time.
2. Adoption of the agenda
The agenda, as it appears in Appendix II to this report, was adopted unanimously.
3. Statement by the Secretariat
The Secretariat first presented to the CJ-DA-GT the apologies of the consultant expert, Mr Jean-Jacques Louis who, for health reasons, could not attend the meeting.
It then informed the members of the CJ-DA-GT of developments since the CJ-DA-GT’s last meeting in March 2001.
It indicated that the Recommendation on alternative means to litigation between administrative authorities and private parties that had been prepared by the CJ-DA was adopted by the Committee of Ministers on 5 September 2001. It bears the number R (2001) 9.
It also informed the members of the CJ-DA-GT that the internet site dealing with administrative law and justice is currently under construction and should be launched soon.
Furthermore, the Secretariat recalled that the Conference of European Justice Ministers, taking place in Moscow on 4 and 5 October 2001, was mainly devoted to issue of enforcement of court decisions.
4. Programme of activities of the CJ-DA for 2001: Execution of decisions in the field of administrative law
The CJ-DA-GT first examined the draft report prepared by the consultant expert (see document CJ-DA-GT (2001) 6) and made some amendments. It proposed not to publish this report as such but to use it as a reflection paper with a view to the possible preparation of a draft recommendation.
The Secretariat also specified that the publication of the replies to the questionnaire was not envisaged because they exist only in English or in French, but that they could be consulted on the internet, subject to the agreement of the delegations concerned.
The CJ-DA-GT agreed to change the translation of certain terms from French to English, so as to avoid any ambiguity : thus, the French word « exécution » should be translated by « implementation » and the term « exécution forcée » by « enforcement ».
The CJ-DA-GT then held an exchange of views on the possible preparation of a draft recommendation on the implementation of decisions in the field of administrative law and agreed on the usefulness of preparing such a draft.
This draft recommendation should not aim at unifying European systems of implementation, which are very different, but should indicate minimum standards to be respected with regard to implementation. Different options should be offered to member States which can be implemented in the light of their own legal systems.
Such a recommendation would help those States which have undertaken a reform process to adopt principles and practices in accordance with European standards. It would also help, on the one hand, to guarantee that the administrative decisions implemented respect the rights of private persons and, on the other, to guarantee efficient administrative action and efficient implementation of courts’ decisions.
The CJ-DA-GT was of the opinion 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, of course, also refer to the relevant instruments of the Council of Europe in this field, including those contained in document CJ-DA-GT (2001) Inf.1.
The CJ-DA-GT discussed the possibility of referring to the guarantees under Article 6 of the European Convention on Human Rights in the preamble and concluded that this provision was only relevant in cases where it was possible to gain access to a judge and was not relevant in all cases involving implementation of administrative decisions. It also discussed the appropriateness of referring to more general principles regarding access to a judge or legal aid in the preamble, but agreed that these principles went beyond the scope of the present activity.
With regard to the structure of the draft recommendation, the CJ-DA-GT 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 implementation of decisions of administrative authorities vis-à-vis private persons, including enforcement, and the second part with the implementation of judicial decisions vis-à-vis administrative authorities.
The CJ-DA-GT agreed to propose definitions of some terms in a possible explanatory memorandum to the draft recommendation, drawing from definitions adopted in the relevant instruments of the Council of Europe in this field and from definitions mentioned in the questionnaire on the execution of decisions in the field of administrative law (see document questionnaire CJ-DA (2001)).
The CJ-DA-GT proposed the inclusion of the following points in a possible draft recommendation:
a. Administrative decisions are, by definition, subject to implementation. Nevertheless, it is not for the CD-DA-GT, nor the CJ-DA, to consider validity requirements or the precise moment when an act becomes subject to implementation.
b. If administrative decisions entail obligations for private persons, they must implement the decision only if it has been brought to their knowledge.
The scientific consultant referred to the notions of publication and notification in his report. Nevertheless, the CJ-DA-GT decided not to refer to these terms in the draft recommendation as they are not understood in the same way in the legal systems of the different member States.
c. Private persons should, in all cases, be able to request suspension of the implementation of a decision (cf. Recommendation No. R (89) 8 of the Committee of Ministers of the Council of Europe).
d. Appeals against administrative decisions, particularly in the case referred to above, should be given reasonable time-limits. These time-limits should vary according to the type of case in order to ensure, on the one hand, that private persons are in practice able to lodge these appeals and, on the other, that the administrative authorities’ action is not blocked for too long.
e. The use of enforcement by administrative authorities should be exercised with the following guarantees:
1. statement by the administrative authority, under the control of a judge, of the need to use enforcement
or: (alternative proposal)
justification by the administrative authority of the urgency of the matter, requiring the use of enforcement
2. need for the private persons against whom the decision is enforced to be informed of the act
3. need for the enforcement to be specifically provided for by legislation in the given case
4. proportionality between the measures used and the goal to be achieved.
f. The implementation of administrative decisions should not be subject to prior control by the courts, notwithstanding the protection of the rights and interests of the private persons.
In this respect, the CJ-DA-GT considered the question of the means of forcing the administrative authority to implement one of its decisions where it refuses to do so or remains silent, in particular with regard to financial claims against administrative authorities.
The CJ-DA-GT noted that some countries require that persons whose interests are adversely affected by lack of implementation must go to court in any case in order to obtain enforcement, possibly through a simplified procedure if the claim is undisputed. In other countries, like the Netherlands, administrative decisions relating to a sum of money are enforceable, whether they are in favour of the administrative authority or the private person, and can be immediately enforced. Lastly, some countries, such as Germany, have adopted an intermediary solution, in which a private person with a financial claim against an administrative authority may request the executory title from the registrar of the court (and not the judge).
The CJ-DA-GT agreed that this discussion should be reflected in the draft explanatory memorandum of the possible recommendation.
g. Concerning the implementation of judicial decisions vis-à-vis administrative authorities, interest resulting from non-implementation 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.
The CJ-DA-GT noted that it would be useful to draw a distinction between implementation of decisions involving a sum of money and other types of decisions.
Concerning the suspension of an administrative act as the result of a judicial appeal, the CJ-DA-GT agreed that this possibility is most relevant in the case of positive administrative acts, i.e. acts modifying a legal situation. However, the CJ-DA-GT did not exclude the possibility, subject to certain adaptations, of ordering suspension of implementation of a negative act or an act that has already been partially enforced.
In relation to the possibility for a judge to substitute his decision for that of the administrative authorities, the CJ-DA-GT noted that this possibility, which only existed in some States, only existed in the case of a power linked to the administrative authorities and not of a discretionary power. It agreed not to open a debate on the powers of judges with regard to administrative decisions under the present activity but to limit the discussion to drawing conclusions from the judges' decision with regard to enforcement.
Concerning the means for the enforcement of judicial decisions with regard to administrative authorities; the CJ-DA-GT agreed that a distinction should be made in the recommendation between two cases: one where the court’s decision embodies the consequences and does not require enforcement measures, and another where the private person who benefits from the decision has to go before the court in order to obtain enforcement of its decision, if necessary by means of constraint.
The CJ-DA-GT discussed the possibility of seizure of property of the administrative authorities in the case of non-implementation, in particular with regard to the principle, in many States, of the exemption of public and/or private State property from seizure.
It raised the question of the appropriateness of recommending that the seizure of certain property should be possible, namely private property belonging to the State or property which is not necessarily “serving State purposes”, whose seizure is not contrary to public interest (the solution taken in German law).
It also mentioned the possibility of recommending to member States that they provide in their budgets for compensation for damages linked to their activity or to allow private persons to take action for compensation.
5. Date and place of the next meeting
The CJ-DA-GT refers this item to the CJ-DA.
6. Other business
None.
APPENDIX I
LISTE OF PARTICIPANTS
ANDORRA/ANDORRE: M. Pierre PASTOR VILANOVA, Juge, Seu de la Justicia, Batllia d'Andorra, Avda de Tarragona, ANDORRA LA VELLA
AZERBAIJAN/AZERBAIDJAN: Mr Bakhram KHALILOV, Senior adviser, Division on legislation and legal expertise of the President Office
FINLAND / FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - 00131 HELSINKI (Chairman of the CJ-DA/Président du CJ-DA)
ITALY / ITALIE: Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, Via Arenula 70 - 00186 ROME (1st Vice-Chair of the CJ-DA/1er Vice-Président du CJ-DA)
IRELAND/IRLANDE: Mrs Caroline DALY, Government Buildings, Upper Merrion Street, DUBLIN 2
POLAND/POLOGNE : Mme Teresa GÓRZIŃSKA, Académie Polonaise des Sciences, Institut des Sciences Juridiques, Nowy Swiat 72, 00-330 VARSOVIE (2nd Vice-Chair of the CJ-DA/2e Vice-présidente du CJ-DA)
SCIENTIFIC EXPERT/EXPERT SCIENTIFIQUE: Apologised/Excusé
INDEPENDENT EXPERTS/EXPERTS INDEPENDANTS:
Prof. Theodor FORTSAKIS, Professeur, Faculté de droit, 52 rue Skoufa - ATHENES 10680 - GRECE
M. Eduard LIEBERMANN, Président honoraire du Tribunal administratif de Karlsruhe, Nelkenweg 4, FREIBURG-OPFINGEN 79112 - GERMANY
M. Juan José MOLINOS COBO, Avocat d'Etat, C/Gran Via 14 - 3° - 18014 GRANADA - ESPAGNE
Prof. Martin PARTINGTON, Law Commission, Conquest House, 37-38 John Street, Theorbalds Road, LONDON WC1N 2BQ - UNITED KINGDOM
Mr Theo SIMONS, Vice-President, Regional Court of Rotterdam, Postbus 50950 - 3007 BL ROTTERDAM - THE NETHERLANDS
SECRETARIAT
Directorate of Legal Affairs, Department of Public Law/Direction des Affaires Juridiques, Service du droit public
M. Alexey KOJEMIAKOV, Head of the Department of Public Law/Chef du Service du Droit public (Tél: 33 3 88 41 38 00, Fax: 33 3 88 41 27 64, E-mail: alexey.kojemiakov@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/INTERPRETES:
Mme Nadine KIEFFER
Mme Anne CHENAIS
Mr William VALK
APPENDIX II
AGENDA
1. Opening of the meeting by Mr NIEMIVUO, Chairman of the CJ-DA
- Draft report of the 1st meeting of the CJ-DA-GT CJ-DA-GT (2001) 4
2. Adoption of the agenda CJ-DA-GT (2001) OJ 2 rev
3. Statement of the Secretariat
4. Programme of activities of the CJ-DA for 2001:
Execution of decisions in the field of administrative law
- Collection of States' replies to the questionnaire CJ-DA-GT (2001) 5
CJ-DA-GT (2001) 5 Addenda 1 - 4
- Draft Report on the execution of decisions in the field
of administrative law CJ-DA-GT (2001) 6
5. Date and place of the next meeting
6. Other business
