Strasbourg, 05/03/02
CJ-DA-GT (2002) 3
EUROPEAN COMMITTEE ON LEGAL CO-OPERATION
(CDCJ)
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA-GT)
3rd meeting
Strasbourg, 27 February-1 March 2002
MEETING REPORT
Secretariat memorandum prepared by the
Directorate General of Legal Affairs
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1. Opening of the meeting by Mr Niemivuo, Chair of the CJ-DA
1. The 3rd meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT) was opened by the Chair, Mr Niemivuo.
2. The list of participants is set out in Appendix I to this report.
3. The Chair welcomed the participants and in particular the delegate of the European Federation of Administrative Judges, who was taking part in a meeting of the CJ-DA-GT, as an observer, for the first time.
2. Adoption of the agenda
4. The agenda, as it appears in Appendix II to this report, was adopted unanimously.
3. Statement by the Secretariat
5. The Secretariat informed the members of the CJ-DA-GT of developments since the CJ-DA-GT’s last meeting in October 2001.
6. The Secretariat first presented to the CJ-DA-GT the greetings of Mr Rafael Benitez, former Secretary of the CJ-DA and of the CJ-DA-GT, who has been replaced since last December by Mrs. Sophie Meudal-Leenders.
7. It also informed the CJ-DA-GT that at its 76th meeting (Strasbourg, 4-7 December 2001) the European Committee on Legal Co-operation (CDCJ) approved the new draft terms of reference for the CJ-DA, which foresee two activities: the execution of decisions in the administrative field and a new activity concerning the possibility and scope of judicial review of administrative decisions in the member States. In the framework of this second activity, the CJ-DA is instructed to undertake preparatory work with a view to examining the situation in the Council of Europe member States and to make recommendations to the Committee of Ministers. The second meeting of the CJ-DA-GT in 2002 will be dedicated to this new activity and a multilateral Conference of the Presidents of the high courts in charge of administrative cases in Europe will take place in Strasbourg in October in order to launch the activity.
8. The Secretariat announced that the new Internet site for administrative law and justice (www.coe.int - Legal Activities – Legal Co-operation – Administrative Law and Justice) has been launched. Information and public documents about the CJ-DA and its activities will be available to the public, and all the replies to the questionnaire on the execution of decisions will be published on the site as from 1 March.
4. Programme of activities of the CJ-DA for 2001/2002: Execution of decisions in the field of administrative law
9. The Chairman invited the Secretariat to introduce the preliminary draft Recommendation of the Committee of Ministers on the execution of decisions in the field of administrative law and the preliminary draft Explanatory Memorandum to the Recommendation (see documents CJ-DA-GT(2002)1 and CJ-DA-GT(2002)2).
10. The Secretariat recalled that at its last meeting, in October, the CJ-DA agreed upon a series of items to be included in a draft Recommendation (see document CJ-DA(2001)5, item 47 and Appendix III to the draft meeting report) and invited the Secretariat to prepare on this basis a preliminary draft Recommendation and Explanatory Memorandum and to bring them to the attention of the CJ-DA-GT. The Secretariat outlined the structure and the main contents of the preliminary draft Recommendation and Explanatory Memorandum, and invited the Working Party to pay special attention to the second part of the draft Recommendation, that had been less thoroughly examined during the CJ-DA meeting.
Title and preamble
11. The Chair raised the discussion about the title of the draft Recommendation, and the CJ-DA-GT agreed to amend the title making explicit reference to both “administrative and judicial” decisions.
12. Concerning the preamble to the Recommendation, the experts pointed out that the text proposed in the third paragraph seemed to focus the aim of the Recommendation on the respect of a fair equilibrium in the relationship between administrative authorities and private persons, whereas the objective of the Recommendation should rather be to ensure at the same time effective execution of decisions and protection of the rights of private persons. The experts stressed the fact that trust of people is an extremely relevant aspect in this sense, and agreed on the opportunity to make reference to the efficiency of administration and justice as a fundamental way to ensure and maintain trust of people towards the administration and the courts.
13. As suggested by the delegate of the European Federation of Administrative Judges, it was agreed to replace throughout the French version of the Draft the term “autorité judiciaire” with the more general term “autorité juridictionnelle”.
14. With regard to the fourth paragraph of the Preamble, the members of the CJ-DA-GT stressed that even though administrative decisions are immediately enforceable once they are taken - because of their legally binding nature - their implementation is not necessarily immediate. In fact, more systems may actually coexist: some decisions should be immediately implemented, whereas in other cases implementation could be postponed until the possibility to lodge an appeal persists. To take into account such different possibilities, the CJ-DA-GT agreed to delete the reference to an “immediate” implementation, and to recall simply the need to implement administrative decisions “efficiently”. The CJ-DA-GT also decided to delete the word “effective” in the first line of the paragraph. Moreover, the Working Party agreed to adapt the English draft text to the French version, eliminating the reference to “voluntary” implementation.
15. The CJ-DA-GT agreed to reformulate and simplify the fifth paragraph of the Preamble in order to affirm more clearly the need to protect at any stage of the execution the rights and interests of private persons, and the eight paragraph, in order to uniform the English and French versions.
16. The CJ-DA-GT suggested generalising the reference to protection by the European Convention on Human Rights, whose relevant provisions and guarantees are not limited to Article 6 and to the right to a fair trial, and avoiding explicit reference to the jurisprudence of the European Court of Human rights - in particular concerning article 6 - in the field of administrative law.
17. Minor drafting changes were decided with regard to the remaining paragraphs of the Preamble.
I. The execution of decisions of administrative authorities vis-à-vis private persons
18. The CJ-DA-GT agreed to modify and simplify the title of Part I, changing it to “The execution of administrative decisions towards private persons.
19. The CJ-DA-GT also agreed to restructure Part I, originally divided into three sections (“Implementation”, “Suspension of Implementation” and “Enforcement”), by incorporating the second section in the first one, since they both deal with implementation.
Implementation
20. The Secretariat was requested to explain the content of item I.1.a, which was intended to draw attention to the enforceability of administrative decisions and to their attitude to modify the existing legal order. The CJ-DA-GT considered such a statement as a definition, rather than a normative provision to be included in a Recommendation, and suggested making reference to this aspect in the Explanatory Memorandum. For the same reason, it was also decided to transfer item I.1.d to the Explanatory Memorandum.
21. The CJ-DA-GT also agreed to merge items I.1.b and I.1.c, without making reference to the voluntary aspect of implementation. The Item should take into account the binding nature of administrative decisions, and, at the same time, the need for adequate information and legal protection of private persons. It was suggested that the expression “to comply with” be used instead of “to implement” administrative decisions, in order to better reflect the self-executing nature of administrative decisions. The CJ-DA-GT also agreed to eliminate any reference to the moment from which private persons are bound to comply with decisions, after they have been brought to their knowledge in accordance with the law, since decisions may themselves indicate timing for implementation.
22. Concerning section 2, the CJ-DA-GT decided to merge items I.2.a and I.2.d, in order to have a single provision dealing with the recognition, for private persons, of the right to request the suspension of a decision. This right will be exercised before administrative or judicial authorities according to the specific case and to the national provisions. The Item has been reformulated accordingly.
23. The CJ-DA-GT agreed to include a reference to the need to ensure legal certainty in item I.2.b as a further motivation to define reasonable time limits for the suspension request.
24. The experts suggested making explicit reference in Item I.2.c to public interest and to the rights of third parties as further aspects to be taken into account in deciding on the request for suspension.
25. Following the instruction of the CJ-DA (see document CJ-DA(2001)5, item 26), the CJ-DA-GT discussed the principle that suspension may also be requested without contesting the legal basis of a decision, in order to find a suitable way to implement it for both administrative authorities and private parties. The members of the CJ-DA-GT agreed that this possibility should not be excluded, but that, in this case, the matter would be left to the free choice of national authorities and should not be mentioned in the Appendix to the Recommendation.
26. Similarly, the CJ-DA had invited the Working Party to consider 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 (see document CJ-DA(2001)5, items 27-28). The experts pointed out that from a merely chronological point of view, suspension might be requested before lodging an appeal, but that the latter should necessarily follow, and that the hypothesis of “spontaneous” suspension of an administrative decision would be too rare and extreme to be included in the text of a Recommendation.
Enforcement
27. The CJ-DA-GT agreed to restructure Item I.3.a, concerning the guarantees that should accompany the use of enforcement by administrative authorities. Such guarantees were considered extremely important given the presumption of legality and enforceability of administrative decisions without prior intervention of the court.
28. The Working Party agreed not to modify item I.3.a.i.
29. Item I.3.a.iii was considered as logically preceding item I.3.a.ii. Consequently, the CJ-DA-GT decided to invert the order of these two paragraphs and to better clarify the scope and the extent of the guarantee of information. Such guarantee has in fact to deal with a concrete enforcement measure, and not with the simple threat of the possibility of an enforcement procedure that may take place in the case of non-voluntary implementation of a decision. Moreover, as a logical consequence of the exercise of discretionary powers by the administration, the material and legal reasoning leading the administration to the use of enforcement should always accompany an enforcement measure.
30. The CJ-DA-GT agreed to include between these two paragraphs a further paragraph taking into account the logical possibility of an intermediate stage between the rise of an obligation to comply with a decision and its enforcement, in which other means to persuade private persons to comply could be used before and instead of using enforcement. A majority of the members of the CJ-DA-GT suggested simply mentioning the possibility of mediation or of other means for obtaining voluntary implementation, whereas other experts preferred a more explicit solution indicating that enforcement should be used only in the case of failure of all other means for obtaining voluntary implementation of the decision, except when it appears practically impossible to employ such means. The CJ-DA-GT decided to submit the two alternative formulations to the CJ-DA for discussion.
31. In item I.3.a.iv, it was suggested to delete the reference to the cost of enforcement measures, which may be ambiguously interpreted. The concept of cost should be intended to mean both the cost that private persons should pay for the enforcement, and the social and financial cost of the measure itself. The experts agreed to mention this point in the Explanatory Memorandum. The CJ-DA-GT also agreed to make an explicit reference in the Recommendation to the respect of the principle of proportionality in the case of pecuniary sanctions accompanying enforcement measures.
32. Item I.3.a (which will become I.2.a according to the new structure of the Recommendation) will then be divided into five sub-paragraphs, recalling respectively: the principle of legality, the guarantee of the possibility to comply with the administrative decision within reasonable time; the possibility of using other means to obtain voluntary implementation; the guarantee of information and motivation of the enforcement decision; the principle of proportionality.
33. Concerning urgency, some delegations suggested to mention public interest as a reason justifying urgent procedures. The reference to public interest being a general characteristic of administrative action, the CJ-DA-GT decided to refer to it only in the Explanatory Memorandum. Whereas the other guarantees mentioned in the previous item should always be applied, mutatis mutandis, also in urgent cases, the CJ-DA-GT agreed to make explicit reference to the fact that in urgent cases the guarantee of a reasonable time to comply with the judicial decision would be the only guarantee that will not be applied in such cases, provided that the use of enforcement, and in particular the condition of urgency, is duly justified and motivated.
34. The CJ-DA-GT discussed the proposed formulation of Item I.3.c, the aim of which was to state that no prior control by the courts is required for an enforcement procedure. The experts agreed to reformulate the item without making reference to a prior court intervention and recalling the need to ensure the possibility of a judicial control or, more specifically, to lodge an appeal before the courts to protect the rights and interests of private persons.
35. The CJ-DA-GT also agreed to mention in the Recommendation, under a separate item, the right of interested third parties to lodge an appeal before the courts in case of inaction by the administrative authorities following a decision and, in particular, where administrative authorities do not use an enforcement procedure to ensure the execution of a decision.
II. The execution of judicial decisions vis-à-vis administrative authorities
36. Following the decision taken concerning part I, the CJ-DA-GT agreed to modify the title of Part II, changing it in “The execution of judicial decisions towards administrative authorities.”
37. Concerning the structure of part II, the CJ-DA-GT considered that a parallel structure to the one adopted in Part I, with a first section dealing with voluntary execution and a second one concerning enforcement of judicial decisions, would be artificial and unclear given the fundamental differences between the two situations. The CJ-DA-GT then agreed upon a two-sections structure with a first part dealing with general provisions on execution of judicial decisions, and a second part concerning decisions entailing the obligation to pay a sum of money.
General provisions
38. Following the instruction of the CJ-DA (see document CJ-DA(2001)5, item 43) the CJ-DA-GT was invited to decide between two alternative proposals concerning the relevant general provisions for the execution of judicial decisions towards administrative authorities.
39. In the view of the CJ-DA-GT the General Provisions of part II, section 1, should have a double objective: on the one hand, to affirm the principle of voluntary implementation of judicial decisions within a reasonable time; on the other hand, to provide enforcement procedures in order to oblige administrative authorities to comply with judicial decisions and to recognise the right for a private person to seek enforcement.
40. For this reason, the CJ-DA-GT agreed to merge proposed items II.1.a and II.1.abis into a new item dealing with the first objective, that is, voluntary implementation and to reformulate the sentence accordingly. The experts proposed also to take into account the possibility that judicial decisions would not only impose a “negative” action, that is, the annulment of the contested decision, but also the “positive” action which is necessary to ensure concrete legal protection following the annulment decision. The CJ-DA, at its last meeting, had also invited the CJ-DA-GT to reflect on the opportunity to make reference in the Recommendation to such “positive” measures (see document CJ-DA(2001)5, item 46). The CJ-DA-GT shared the view that annulment decisions may be insufficient to protect private persons’ rights, and agreed to include in this item a reference to the need for administrative authorities to take all necessary measures, from the point of view of substantive law, to give full effect to judicial decisions.
41. Similarly, the CJ-DA-GT agreed to merge proposed items II.1.b and II.1.c into a new item dealing with the second objective, that is, to provide enforcement procedures in order to oblige administrative authorities to comply with judicial decisions, and to recognise the right for a private person to seek enforcement. Moreover, the CJ-DA-GT agreed to mention in this item the use of injunction or coercive fines as possible procedures to allow private persons to seek execution of a judicial decision. It was stressed, however, that they should only be considered as suggestions, or possible examples, that other procedures may be possible and that, in any case, courts have discretionary powers with regard to the means to ensure enforcement.
42. The CJ-DA-GT also decided to include in the Recommendation a third general principle concerning liability of administrative authorities and personal liability (disciplinary, civil or criminal according to the specific case) of public officials involved, in case of failure in the implementation of judicial decisions. If it is true that the most efficient compensation would be the execution of the decision, and that calculation of damages would not always be easy, there are however some cases in which judicial decisions are practically impossible to execute and pecuniary compensation becomes the only possibility of compensation. As a logical consequence, it should be made explicit that administrative authorities and public officials involved could be held liable in case of non-execution. It is the intention of the CJ-DA-GT, that personal liability, where appropriate, should be extended to all level of administrators, until the highest possible, in charge of the implementation of a decision.
Execution of judicial decisions annulling administrative decisions
43. On the basis of the decisions taken concerning the contents of section 1 and in particular of items II.1.a and II.1.b, which would also cover what was originally proposed in section 2, the CJ-DA-GT decided to delete this section.
Execution of decisions entailing an obligation to pay a sum of money
44. In item II.3.a., it was agreed to replace the term “as soon as possible” with the term “within a reasonable time”.
45. Facing the problem of requests to administrative authorities for interests in the case of condemnation, the CJ-DA-GT agreed to focus Item II.3.b on the objective to prevent the administration from paying less for its obligations than what would be requested from a private person in a similar case. Experts pointed out that interests resulting from non-implementation should not necessarily be calculated in the same way whether the debtor is a private person or an administrative authority. Simply, the Recommendation should state that interests requested from administrative authorities in the case of condemnation should not be lower than those requested in a similar situation from private persons. Such a provision would be even more open than the proposed one, also allowing the possibility to request administrative authorities higher interests than those requested from private persons. The CJ-DA-GT agreed to reformulate item II.3.b accordingly.
46. The Working Group stressed that the reference to Recommendation 85(15) would excessively broaden the scope of item II.3.c, dealing with State liability in general. The objective of this item should in the view of the CJ-DA-GT be to ensure the existence, where appropriate, of adequate provisions guaranteeing the possibility for administrative authorities to honour obligations to pay a sum of money in case of condemnation by a court. Following this principle, the item was reformulated and simplified.
47. Some experts and delegates questioned the feasibility of the provision stated in Item II.3.d in some States, and in particular the practical aspects of a seizure against the administration, but it was recognised as an important and effective guarantee and it was agreed that it should be kept in the Recommendation. Concerning the property that could be subject to seizure, the CJ-DA-GT recommended, in particular, to make clear that only private property of the administration which is not indispensable for carrying out public tasks could be seized.
48. At the close of the debate the CJ-DA-GT agreed upon a revised draft recommendation including all the discussed matters and further drafting corrections (see Appendix III) that will be brought to the attention of the CJ-DA for approval.
49. The CJ-DA-GT also invited the Sectretariat to prepare a revised explanatory memorandum on the basis of the revised draft recommendation, which will also be brought to the attention of the CJ-DA for approval.
5. Date and place of the next meeting
50. The next CJ-DA-GT rmeeting will take place in Strasbourg, in the last week of August 2002. It will be mainly dedicated to the new activity concerning the possibility and scope of judicial review of administrative decisions in the member States.
6. Other business
51. 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
BELGIUM / BELGIQUE: Apologised/Excusée
FINLAND / FINLANDE : Mr Matti NIEMIVUO, Director of Legislation, Ministry of Justice, P.O. Box 1 - 00131 HELSINKI (Chairman of the CJ-DA-GT/Président du CJ-DA-GT)
ITALY / ITALIE: Apologised/Excusé
IRELAND/IRLANDE: Mrs Caroline DALY, Government Buildings, Upper Merrion Street, DUBLIN 2 (Vice-Chair of the CJ-DA / Vice-Présidente du CJ-DA)
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/SLOVENIE: Mr Samo GODEC, Academy of administration, Kotnikova 8, 1000 LJUBLJANA
SWITZERLAND/SUISSE: M. Philippe GERBER, Division I de la législation, Office fédéral de la Justice, Département fédéral de justice et police, Bundeshaus West, 3003 BERNE
SCIENTIFIC EXPERT/EXPERT SCIENTIFIQUE:
M. Jean-Jacques LOUIS, Quai Müllenheim, 67000 STRASBOURG
INDEPENDENT EXPERTS/EXPERTS INDEPENDANTS:
Prof. Theodore 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
Mr Theo SIMONS, Vice-President, Regional Court of Rotterdam, Postbus 50950 - 3007 BL ROTTERDAM - THE NETHERLANDS
EUROPEAN COMMISSION/COMMISSION EUROPEENNE: Apologised/Excusé
OBSERVERS/OBSERVATEURS
HOLY SEE/SAINT SIEGE: Apologised/Excusé
UNITED STATES OF AMERICA/ETATS UNIS D'AMERIQUE: Apologised/Excusé
CANADA: -
JAPAN/JAPON: M. Pierre DREYFUS, Assistant, Consulat Général du Japon, 20 place des Halles - Bureaux Europe - 67000 STRASBOURG
MEXICO/MEXIQUE:
OECD/OCDE:
INTERNATIONAL COMMISSION ON CIVIL STATUS / COMMISSION INTERNATIONALE SUR LE STATUT CIVIL: Apologised/Excusé
EUROPEAN FEDERATION OF ADMINISTRATIVE JUDGES / FEDERATION EUROPEENNE DES JUGES ADMINISTRATIFS:
M. Pierre VINCENT, vice-Président, Cour administrative d'appel, 6, rue du Haut Bourgeois, 54035 Nancy
Mme Elisabeth ROBINO, Cour administrative de Strasbourg, 31 avenue de la Paix, 67070 STRASBOURG
M. Patrick KINTZ, Cour administrative d'appel, 6, rue du Haut Bourgeois, 54035 Nancy
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 )
Mme Sophie MEUDAL-LEENDERS, Secretary of the CJ-DA/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. Daniele CANGEMI, Programme adviser (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 )
INTERPRETERS / INTERPRETES
Mr Jean SLAVIK
Ms. Martine CARALY
APPENDIX II
AGENDA
1. Opening of the meeting by Mr NIEMIVUO, Chairman of the CJ-DA-GT
- Report of the 1st meeting of the CJ-DA-GT CJ-DA-GT (2001) 4
- Report of the 2nd meeting of the CJ-DA-GT CJ-DA-GT (2001) 7
- Draft report of the 14th meeting of the CJ-DA CJ-DA (2001) 5 prov.
2. Adoption of the agenda CJ-DA-GT (2002) OJ 1
3. Statement of the Secretariat
4. Programme of activities of the CJ-DA for 2001-2002:
Execution of decisions in the field of administrative law
- Preliminary draft Recommendation of the Committee of Ministers on the execution of decisions in the field of administrative law CJ-DA-GT (2002) 1
- Preliminary draft explanatory memorandum to the Recommendation of the Committee of Ministers on the execution of decisions in the field of administrative law
CJ-DA-GT (2002) 2
5. Date and place of the next meeting
1. Other business
APPENDIX III
DRAFT RECOMMENDATION OF THE COMMITTEE OF MINISTERS
ON EXECUTION OF ADMINISTRATIVE AND JUDICIAL DECISIONS
IN THE FIELD OF ADMINISTRATIVE LAW
RECOMMANDATION 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)
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 greater unity between its members;
3. 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 court decisions in the field of administrative law should be executed;
4. Considering that the action of the administrative authorities presumes their decisions are efficiently implemented by private persons;
5. Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;
6. 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;
7. 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;
8. Considering that the efficiency of justice requires that court decisions in the field of administrative law are executed, in particular when they are addressed to administrative authorities;
9. 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;
10. 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;
11. 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";
12. 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 No. R (XX) XX
I. Execution of administrative decisions towards private persons
1. Implementation
a. Private persons are bound to comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by the courts 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 administrative or judicial authorities 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, administrative authorities must also take into account public interest and the rights and interests of third persons.
2. Enforcement
a. The use of enforcement by administrative authorities should be subject to the following guarantees :
i. enforcement should be expressly provided for by legislation;
ii. Private persons against whom the decision is to be enforced must be given the possibility to comply with the administrative decision within reasonable time.
iii. The choice to use enforcement should take into account the possibility of mediation as well as other means for obtaining voluntary implementation of the decision1.
iv. The use of enforcement should be brought to the knowledge of private persons concerned, accompanied by the reasons justifying it.
v. the enforcement measures to be used should be proportionate to the goal to be achieved. When these measures are accompanied by monetary sanctions, the latter should also 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 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 the courts against the enforcement procedure in order to ensure the protection of their rights and interests.
d. If the administrative authorities do not use an enforcement procedure to ensure the execution of a decision, interested third parties should be able to lodge an appeal before the courts in order to obtain the execution of this decision.
II. Execution of judicial decisions towards administrative authorities
1. General provisions
a. Administrative authorities are bound to implement judicial decisions within a reasonable time. In order to give full effect to these decisions, they should take all necessary measures from the point of view of substantive law.
b. In cases of non-implementation by an administrative authority of a judicial decision, an enforcement procedure should be provided to allow private persons to seek execution of that decision, in particular through an injunction or a coercive fine.
c. Administrative authorities are liable where they fail 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.
2. Execution of 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 time.
b. Interests resulting from non-implementation by administrative authorities of decisions entailing an obligation to pay a sum of money should not be at least equivalent to than those which administrative authorities may request to private persons in a similar situation.
c. Where appropriate, adequate provision should be made to ensure that an administrative authority's lack of funds does not prevent it from meeting its obligation to pay a sum of money.
d. In the case of non-implementation by administrative authorities of decisions entailing an obligation to pay a sum of money, it should also be possible to seize property of the administrative authorities which is not indispensable for carrying out public tasks.
