Frank Esparraga

The question that has frequently been asked is issues related to what can be achieved by comparing different systems of administrative law. There are those (Schwartze) who say that administrative law is a technical field which is a fruitful source for finding “functional equivalents” and that it can readily be compared. It has been suggested in this paper that different systems of administrative laws are influenced to a varying degree by political, constitutional and historical experiences and choices. It is not suggested any correctness in the view of skeptics who say that administrative law is the clearest expression of the national character of a people. The convergence of the different European systems of administrative law leads to an even greater harmonization of law. Any comparative study also serves a variety of purposes. By providing perspective, comparative study helps us to understand better our own administrative law, to stimulate our minds as to possible weaknesses, and to assist legal reform to find creative solutions for problems.

BELGIUM

The Belgian legal system is patterned to a large extent upon that of the France’s legal system  During the 19th century, the Belgian ordinary courts worked out a system of substantive droit administratif similar to that of the French system. In Belgium, the Constitution requires the judicial courts to hear disputes over civil and political rights. Citizens’ rights with respect to administration are held to be included in these rights, except when they are specifically withdrawn from the jurisdiction of the courts by statute and placed within the jurisdiction of the administrative courts. The Conseil D’Etat, established in 1946, is the highest administrative body with several specialist administrative courts. The lower courts known as la Deputation Permanente du Conseil Provincial also have jurisdiction in certain administrative matters such as taxation. The Conseil D’Etat has five divisions, each with five members. Two of these handle cases in French; two handle cases in Dutch; and one is bilingual. The laws relating to the Conseil D’Etat empower the administrative section of the court to set aside a decision (a term which covers all acts and regulations of    administrative authorities) made by an administrative authority, or court. This power is also limited by the general jurisdiction of the judicial courts. The Conseil D’Etat may quash a decision and undertake full judicial review under a number of conditions.

Power to quash or vary: The Conseil D’Etat has the power to quash decisions dealing with disputes with the administration. However, Belgium does not have lower administrative courts. For administrative matters, the Conseil D’Etat is the place of the first and the last resort. The most important cases that the Conseil D’Etat can deal with are those which involve the quashing of acts and regulations of administrative authorities. Such cases are of general interest and are brought to ensure that the law, as opposed to individual rights, is respected. The Belgian Conseil D’Etat lacks competence when the applicant has the possibility of taking action before the judicial body which is empowered to hear problems involving personal rights, with the exception of disputes over certain political rights which are reserved to the administrative courts. However, an application to quash an administrative regulation always falls within the jurisdiction of the Conseil D’Etat since such applications are of a general nature and independent of whether or not an individual’s right has been interfered with.

Belgian law makes a sharp distinction between personal applications to have an administrative measure quashed and objective applications where the application is made independently of whether or not individual rights have been interfered with. The former applications are generally heard in the judicial courts and the latter in the administrative courts.

Power of full judicial review: This is a very restricted power and is only available for a limited number of specific cases laid down by statute and essentially dealing with electoral matters. The jurisdiction of Belgian administrative courts, as will be seen, is quite narrow when compared with the administrative courts of other countries. When it comes to substituting a decision, the principle of separation of administrative and judicial functions prevents the Conseil D’Etat from further activity than quashing the decision. Consequently, when requested to vary or substitute an administrative act that is being challenged before it, the Conseil D’Etat must declare itself incompetent. As to fines, the controversial question of whether or not the Belgian Conseil D’Etat was entitled to impose a fine was answered in a 1990 statute, which granted the Conseil D’Etat the right to impose a fine on an administrative authority that failed to act on a judgment to set aside a decision. With regard to damages, the Conseil D’Etat does not have the authority to attach an order to pay damages to its judgment to quash. Persons subject to public law are subject to tort liability, and  an applicant must turn to the judicial judge to enforce performance ordered in judgments of the Conseil D’Etat. As to compensation, the Conseil D’Etat determines requests for damages brought against the state or public bodies for injury sustained as a result of measures taken by them. The procedure is rare and the Conseil D’Etat only determines it when no other competent court is found.

Belgian Conseil D’Etat is, therefore, obliged by virtue of Article 177 of the Treaty, as a court of last resort, to submit all questions raised by it that involve interpretation of European Union Law to the European Court for preliminary ruling.

The effects of decisions of administrative courts: Any decision emanating from the Conseil D’Etat, which quashes an administrative act, has retrospective effect, although this is limited, in cases of  the considerations of equity, public utility and certainty. When an administrative act is quashed, the decisions taken by virtue of that act also lose their legal basis. Because of the fact that it has an absolute binding effect, a decision ordering that an administrative act be quashed creates a precedent binding on all courts. In theory, the Conseil D’Etat is not bound by the decisions of other courts, but it takes them into account.

With regards to the enforcement of decisions of administrative courts in Belgium, some laws force public persons and public bodies to be subject to public law to register in their accounts, should the case arise, the debts that result from adverse judgments handed down by administrative courts. An applicant may, in the case where the Conseil D’Etat decision has not been granted, apply to a non-administrative court to obtain reparation for the loss suffered and may also request the annulment of the new administrative decision. In 1991, a law which allowed the Conseil D’Etat to suspend the carrying out of a particular act or decision by the administration, if the act or decision would be likely to cause the applicant serious loss or damage of a kind which would be very difficult to repair once it had occurred. Was introduced.

GERMANY

Administrative law in Germany is concerned primarily with the validity or revocability of administrative acts and the right to administrative action. There is a tendency towards codification in large parts of German administrative law being codified.

There are five jurisdictional branches in Germany, each with its own court organization: the general courts; the administrative courts; the tax courts; the social courts; and the labour courts. There is also a constitutional court. In addition to the general administrative courts, the tax courts and the social courts are also considered to be administrative courts in certain instances.

There are thirty-five  general administrative courts of the first instance— Verwaltungsgerichte; ten appeal courts—Oberverwaltungsgerichte; and the Supreme Court, the Bundesverwaltungsgericht.

Power to quash or vary: The administrative judge in Germany has the power to quash a decision in two ways. The first, which is most often used, is intended to protect a personal right or interest by quashing the contested act. Since the object of this action is the protection of rights or interests of individual persons, the judge must restrict considerations to the part of the act that appear to be unlawful. The second form of action is the direct review of rules and regulations. This enables the administrative judge to revoke certain executive rules which do not have the authority of law. This right to review may be exercised over certain local planning regulations and the law of the “Lander”, on condition that the ‘Land’ has incorporated this review procedure into its law.

The German administrative judge has also the power to obtain an administrative act from the administration, but cannot issue an administrative act in the place of the administration. However, the administrative judge can quash any decision which refuses to grant a request and can oblige the administration to come to a new decision which takes into account the grounds for the decision. In some instances, the judge can oblige the administration to issue the act requested by the applicant. Another possibility open to the German administrative judge is to order measure that is to be served or withheld. This involves full judicial review, but is reserved to certain well-defined matters and is intended to get the administration to pay out a certain sum of money.

Additional powers: In the case of the quashing of an administrative act that has already been carried out, the administrative judge may decide the manner in which the administrative authorities should restitute the previous situation. The judge cannot, however, substitute himself for the administration to do this. Judicial courts, in principle, have jurisdiction to order the payment of damages. This is the case when the State acts as a private person, in the case of State liability as a result of administrative acts governed by administrative law, or in the case of compensating private persons in expropriation for public purposes. Administrative courts determine State liability resulting from contracts entered into by the administration and, in likewise, the State’s liability towards its public servants. The orders or judgments and decisions of these courts may be carried out in accordance with the rules of the Code of Civil Procedure involving the State. The court can appoint a competent authority to carry out its orders in accordance with the orders of the court when the administration is inactive. The provisions of the Code of Civil Procedure to force performance are applicable to the decisions of the administrative courts. However, it is indeed rare that steps have to be taken to force the administration to apply or carry out an order. On most occasions, the court’s decisions or orders are obeyed.

Referral before an international court: In the case of conventions dealing with refugees and stateless persons and also in the case of the European Convention for the Protection of Human Rights, the German judge applies international conventions on condition that these conventions have been incorporated into the domestic law. The general rules of international law take precedence over domestic laws, and directly create rights and obligations for all citizens.

Article 177, paragraph 1 of the EEC Treaty, requires courts of the last resort, from which there is no appeal, to transfer all questions to which European Union law may be applied, to the European Court of Justice for preliminary ruling. German administrative courts are bound to take account of the judgments of the European Court of Justice.

The effects of decisions of the administrative courts: Judgments given in administrative cases have relative authority and are subject to challenge. They only bind the parties in relation to the matter concerned. This relative effect stems from the fact that the object of the action is not to decide whether the administrative act is unlawful, but to pass judgment on the applicant’s claim. The subjective nature of an action to have an administrative act quashed explains the fact that the decision has only relative binding authority. Third parties are, however, bound by the fact that the administrative act has been quashed. Decisions quashing regulations are final and these decisions are published. Any administrative act which is quashed is made retrospectively invalid and, if possible, is deemed never to have existed. A decision declaring that a regulation is unlawful takes effect ab initio unless this would cause legal uncertainty.

The enforcement of decisions of administrative courts: In general, the administration respects the principle of the rule of law, and applies the decisions of the administrative courts without direct outside pressure. Problems of enforcement that occur in the cases where the application brought before the court do not have the effect of suspending the act, or decision challenged. In such cases, when the administrative court declares an act or decision annulled, the court may, upon the application of an interested party, specify the way in which a administration must apply its judgment.

The administrative courts may oblige the administration to take a decision or carry out an act that it previously refused to do so. Such a court order may be accompanied by the imposition of a periodic fine. As a general rule, the Code of Civil Procedure may be relied upon the administrative matters to ensure that the decisions and judgments of the administrative courts are enforced. The Code of Civil Procedure provides a specific measure to be taken to encourage the administration to comply voluntarily with the decisions of the courts. The court, before deciding what enforcement measures to adopt, must inform the administration of the decision it intends to pronounce and accord a specific time limit in which the decision should be applied.

FRANCE

Administrative law has evolved as a special branch of law in France with a three tier system of general administrative courts. The first tier has the Tribuneaux Administratifs; the second tier has five Cours Administratives d’Appel; and the highest administrative court is the Conseil D’Etat to which appeal is required, although in some instances the Conseil D’Etat may be a court of the first instance.

Power to quash or vary: In actions brought involving abuse of power, the judge is informed of arguments which challenge the legality of administrative acts. A judge, in the French Conseil D’Etat, may pronounce the contested decision quashed, if it turns out to be unlawful, otherwise, there are no further powers to annul.

Power of full judicial review: In full judicial review, questions involving the recognition of personal rights and which are attached to an individual legal situation are, in principle, referred to a judge. In such cases, the judge may order the payment of money, or reverse the decision, and in certain cases the judge may even substitute a decision. The extent of the powers actually varies according to the subject matter. Appeals against the judgments made after full judicial review are heard by the administrative courts of appeal, and only go to the Conseil D’Etat on further appeal. Cases concerning abuse of power are appealed before the Conseil D’Etat, but since 1992 appeals involving abuse of power lodged against individual administrative decisions have been progressively assigned to the administrative courts of appeal.

Additional powers: In actions against the abuse of power and in actions for full judicial review, the administrative judge is neither enabled to issue an injunction against the administration, nor may the administration be ordered to pay a fine.

It is a basic principle of French Public Law that the administrative judge is careful not to interfere with the activity of the administration or to give orders to the administration.

The effects of decisions of administrative courts: In France, the effect of a court decision varies. In most cases, it is only relative, but may be absolute if the decision quashes the administrative act as ultra vires. Once administrative acts have been quashed, they lose all legal effects and can no longer be enforced, either by the administration itself or by any other court. Acts quashed as ultra vires are deemed to have never existed, and they disappear with retrospective effect from the country’s legal framework.

The enforcement of decisions of administrative court: The majority of the decisions of the administrative courts are applied in France, although, in recent years, there has been an increase in the number of applications claiming that decisions have not been applied. Putting aside bad faith on the part of those involved, the principal cause is due to the complexity of the decisions, and the lack of legal knowledge of many persons and bodies is subject to administrative decisions. A Decree dating back to 1963 provides a mechanism that aims to prevent administrative court decisions being ignored so as to encourage their application. There is a separate division of the Conseil D’Etat which ensures that this aim is attained. Two Acts of the Parliament, in 1980’s and the 1987’s, reinforced this aim and added coercive measures. These Acts empower the Conseil D’Etat to impose periodic penalty payments by compelling fines on persons or bodies subject to public law and, in more general terms, on private persons or bodies charged with running public services.