098 Photo: Ole Raddach

From 3 to 4 December 2018 ACA-Europe held the seminar “ReNEUAL I - Administrative Law in the EU – Single Case Decision-Making” in the Administrative Court of Cologne. This seminar was the first to be organised by the Federal Administrative Court of Germany which currently is holding the presidency of ACA-Europe.

More than 45 representatives of 26 members, observers and guests followed the invitation of President Prof. Dr. Dr. h.c. Rennert of the Federal Administrative Court of Germany and President of ACA-Europe to gather at the shores of the Rhine in one of the biggest administrative courts of first instance to discuss general issues of procedural administrative law from a genuinely European point of view of comparative law.

 

The seminar was inspired by the methodology of the ReNEUAL project. ReNEUAL stands for “Research Network on EU Administrative Law”. This is a group of mainly European legal scholars, but also practitioners, who made the effort of setting up model rules for the proceedings of the direct administration of the European Union, i.e. especially that of the European Commission, but also and increasingly the growing number of European agencies. It is important to note that ReNEUAL does not aim at drafting a completely harmonised law of administrative procedures in the member states of the European Union. The methodology of the project implied a comparative analysis of the legal orders of the member states, however not only looking for the lowest common denominator, but rather finding – by means of a value-based assessment – the best European solution. This in its essence is a very well-known methodology for European law as the European Court of Justice used a very similar approach to develop the protection of human rights on the European level.

The seminar in Cologne needed to focus on some specific aspects of the law of administrative procedure. In a two day seminar it is simply not possible to discuss administrative procedure in its entirety as the ReNEUAL project did. The seminar focused in general terms on the single case decision-making. In this framework two more specific topics were selected. This was on the one hand the questions who can be party to administrative proceedings and what rights and obligations are linked to this status. On the other hand the seminar dealt more closely with the way administrative authorities determine the facts of a case and – from the perspective of the administrative jurisdiction – how the courts exercise control over this part of the work of the administration.

039 Photo: Ole Raddach

On the first day of the seminar, after the opening of the seminar by President Rennert, Prof. Dr. Jens-Peter Schneider from the University of Freiburg and member of the steering committee of the ReNEUAL project held the opening lecture which gave an overview about the ReNEUAL project in the context of European administrative law. Especially composite proceedings in the multi-level administrative sphere in the European Union have created an increased need for coordination. This implies a cooperation of the European Union organs and national administrations as well as the development of specialised agencies of the European Union. Professor Schneider pointed out that especially this need for coordination, along with the general need to protect individual rights and to increase accountability, democratic legitimation as well as efficiency urge for a codification of European procedural administrative law.

Subsequently the topic of the seminar was discussed more thoroughly in two panels reflecting the two focuses of the seminar on the basis of the results of the preparatory questionnaire which had been answered by 28 of the members, observers and guests.

DSCN0121The first panel – chaired by President Patroni Griffi of the Italian Council of State –dedicated itself to the questions of who can be party to administrative proceedings and how as well as what rights and obligations are connected with this role. In a short presentation judge Dimitry Berberoff Ayuda of the Administrative Law Chamber of the Supreme Court of Spain explained the Spanish concept of granting the quality of parties not only to those who have a direct legitimate interest, but, according to sector specific law, also to organisations representing a collective interest in some fields of law as in urban development law. Justice Ulrik von Essen of the Swedish Supreme Administrative Court presented the Swedish approach on participation in the administrative proceedings which is quite open to contributions. Accordingly, in Sweden the quality as party is generously granted to associations defending interests which are not genuinely theirs (e.g. of Swedish wolves). President Francis Delaporte of the Supreme Administrative Court of Luxemburg gave insight in the understanding of the relationship between citizen and administration in Luxemburg which is nowadays based very much on a cooperation of these two. In this process the active participation of the citizen is demanded – which of course is depending on an adequate publication of the initiation of an administrative procedure. Judge Tanya Kutsarova-Hristova of the Supreme Administrative Court of Bulgaria explained the approach of the Bulgarian law on the right to be party in administrative proceedings which can even be enforced by a court action. In the further discussion Lady Arden of the Supreme Court of the United Kingdom argued that not everyone needs to be a party. Instead, she explained, the concept of amicus curiae is applied in the United Kingdom. This allows involving people not directly affected, but otherwise interested in cases.

DSCN0475The second panel – chaired by Councillor of State Ben Schueler of the Dutch Council of State – dedicated itself to the determination of facts in the administrative proceedings and discretionary powers of the administration therein. Judge Pavel Molek of the Supreme Administrative Court of the Czech Republic presented the approach to the fact finding in the administrative procedure of the Czech law. Starting from the duty of investigation on the side of the administrative authority and the duty to cooperate there are – depending on the specific case – different models of balancing these aspects. The duty to cooperate is more important in proceedings started on the application of a party while in proceedings about administrative sanctions the party has the right to remain silent. Judge Maria Benedita Urbano of the Supreme Administrative Court of Portugal exposed the approach of the Portuguese law. This contains a newly introduced possibility to make – within the discretion of the administrative authority to design the fact finding procedure – agreements on this procedure. She also explained the development of judicial control of discretionary decisions in Portugal which has evolved from a very limited control of legality to allowing for a restricted control. This includes, among others, manifest errors of the facts as well as the principle of proportionality. President Kari Kuusiniemi of the Supreme Administrative Court of Finland presented the Finnish concept of a very deep and broad control of facts and law exercised by the Finnish administrative courts also in complex factual situations as for example in environmental law. To deal with the multidisciplinarity of environmental law the Finnish legal system provides for expert-judges in cases of pollution control and of water management. These are not lawyers, but scientists or engineers. They contribute to a better understanding of the courts of the complex scientific aspects of a case and play a crucial role in the amending permits. Councillor of State Fabrizio Cafaggi of the Italian Council of State presented the point of view of the Italian law on the relationship between the duty of the administrative authority to investigate and the duty of the citizen to cooperate as well as between the function of the administrative courts to control the administration and the latter’s discretionary powers. Judicial review scrutinizes both whether and how information have been gathered by the administration. But there are limits of judicial review, too, which are based on the principle of legality and the separation of powers. The Court cannot replace and substitute the administration. Especially when facing complex factual settings the Italian administrative judge has to find the right balance as he can neither abstain from investigating nor replace the administration in fact finding.

DSCN0585On the second day of the seminar a moot court was included in the programme, a novelty to ACA-Europe seminars. A large number of participants was asked to re-enact a fictional case, which was based on a real, yet simplified case in environmental law about a permit to construct a small wind farm. The different roles included the applicant, played by Vice-President Jacek Chlebny of the Supreme Administrative Court of Poland, the defendant, the representative of the administrative authority that had issued the permit, played by Justice Erik Kersevan of the Supreme Administrative Court of Slovenia, a neighbouring farmer, played by Ben Schueler, the municipality of the site where the project was to be realised, represented by Councillor of State Pierre Lefranc of the Council of State of Belgium, the representative of an environmental protection organisation, played by Ivo Pilving, President of the Administrative Law Chamber of the Supreme Court of Estonia, who claimed that the wind farm endangered the red kite, a protected bird, and the representative of an association for preserving traditions, represented by Justice Leonidas Parparinos of the Supreme Court of Cyprus. During the moot court some aspects that had been discussed the day before in a more theoretical way could be discussed in a playful way from a very practical point of view. In the end, the fictional court, composed of Péter Dárak, President of the Supreme Court of Hungary, Francis Delaporte and Councillor of State Yves Gounin of the French Council of State, also passed a very wise sentence. Additionally Dr. Fruzsina Molnár-Gábor from the Heidelberg Academy of Sciences and Humanities finally provided a deep analysis of the answers the members had already given to the case study in the questionnaire and contextualised the case study from the point of view of the model rules of the ReNEUAL project.

023 Photo: Ole Raddach

In his closing remarks President Rennert emphasised the importance of comparative law also in the daily work of the supreme administrative jurisdictions. In many cases the supreme administrative courts of the member states are facing problems for which their own legal order allows for more than only one clear solution. In such a case it is worthwhile to have a look at the solutions of other legal orders to learn from their experience. Sometimes one might discover that a great majority of member states prefers one certain way to deal with the problem. In this case, given that the own legal order allows for this, it appears to be reasonable to let oneself inspire by the solution already found by the partners.

ACA-Europe is going to continue to offer a platform for comparative studies in the field of administrative law. In this context the biennial colloquium in May 2020 is going to resume the discussion of the general law of administrative procedures under the title “ReNEUAL II”.