On 13 May 2019 ACA-Europe held the seminar “Functions of and Access to Supreme Administrative Courts” in the Higher Administrative Court of Berlin and Brandenburg, one of the 15 administrative courts of second instance in Germany. The seminar was organised by ACA-Europe and the Federal Administrative Court of Germany currently holding the presidency of ACA-Europe.
More than 60 representatives of 32 member institutions came to the German capital to gather in a building with a long tradition in administrative jurisprudence as it used to be the seat of the Prussian Higher Administrative Court and later of the Federal Administrative Court before it moved to Leipzig in 2002.
The seminar was closely related to the previous one hosted by the Irish Supreme Court in Dublin on “How our Courts Decide: The Decision-making Processes of Supreme Administrative Courts”.
As already the seminar in Dublin in March this seminar aimed at deepening the mutual understanding of the conditions under which the member courts work. After the seminar in Dublin had focused on the view to the internal decision-making process, the seminar in Berlin put the centre of attention to the external factors. In three sessions the participants discussed the different purposes that are to be fulfilled by the Supreme Administrative Courts. In several states their work also includes the function of a court of first instance in specific cases. The seminar also dealt with the various approaches the different jurisdictions follow as far as binding effects of the decisions of the Supreme Administrative Courts are concerned. Finally, the question was discussed whether there is a filter system for appeals to the Supreme Administrative Court and, if so, how such filter systems are related to the purposes of the Supreme Administrative Courts.
After an introduction by Klaus Rennert, president of the German Federal Administrative Court and currently president of ACA-Europe, Carsten Günther, judge of the German Federal Administrative Court, presented the key results drawn from the national answers to the preparatory questionnaire that were provided by 29 members, observers and guests.
In the first session on the purposes of Supreme Administrative Courts – chaired by the president of the Italian Council of State Filippo Patroni Griffi – Theodora Ziamou, referendary counsellor of the Greek Council of State, explained the democratic nature of the Greek Council of State which has always claimed the competence to control the constitutionality of statutes considering this competence to be inextricably linked to the control of legality of the Administration. To allow for a broad participation the Greek Council of State since 2010 can also carry out so-called pilot trials in issues of general interest with effects on a larger number of people. Erik Kerševan, judge of the Slovenian Supreme Court, pointed out the differences between the revision and the appeals procedure in Slovenia. While the revision is admissible in cases of general importance appeals cases, that do not required to be admitted. In the first the Su-preme Court performs a limited review on points of law only, while in the latter it carries out a broad examination of legality. This leads in revision cases to a more general perspective beyond the single case and a stronger focus on single case justice in the appeals cases. According to Mr. Kerševan the challenge is to allocate the right cases in the right procedure without running the danger of dysfunction, which for example could happen with a well-founded application for a revision which does not meet the requirement of general importance. Rafael Toledano Cantero, judge of the Spanish Supreme Court, described the role of the Spanish Supreme Court focussing especially on the subject matters in which it acts as single-instance court and on its function as court of cassation. As a result of the historical evolution the Spanish Supreme Court exclusively hears as single-instance actions against administrative decisions of the highest bodies of all State powers. Nevertheless, the primary role of the Spanish Supreme Court lies in its function as a court of cassation in order to unify the interpretation of the law in cases that show specific interest of cassation. To select the cases, in 2016 a new system of admission of cassation appeals was established which provides for more or less intense assumptions of the interest of cassation. Only in cases in which the lower court deliberately departs from the established jurisdiction there is always such an interest.
In the second session on the binding effects of Supreme Administrative Court deci-sions – chaired by the president of the jurisdictional division of the Dutch Council of State Bart Jan van Ettekoven – Aleksandrs Potaičuks of the Latvian Supreme Court presented the approach the legal order in Latvia has taken to ensure a uniform interpretation of the law. This is accomplished by stating that the principle of equality in general obliges lower courts to follow the interpretation given by the Supreme Court. In identical factual and legal circumstances lower courts may only deviate from a decision of the Supreme Court, if they give specific reasons for the deviation. Yet, this deviation opens the way for an appeal to the Supreme Court. Jacek Chlebny, vice president of the Polish Supreme Administrative Court, presented the instrument of resolutions the Polish Supreme Administrative Court has at its disposal to play its role as the guardian of consistency in the interpretation of the law. In Poland the decisions of the Supreme Administrative Court have binding effect only in the individual case, but by means of resolutions the Supreme Administrative Court can give its position on a certain legal question to enhance the consistency of the case law. These resolutions are binding for the lower administrative courts. Yet, if they do not agree, they can initiate proceedings for a new (concrete) resolution aiming at having the Supreme Administrative Court change its view (“If you do not agree, ask once more”). Lord Philip Sales, justice of the Supreme Court of the United Kingdom, gave an overview of the principle of stare decisis and the extent of autonomy for lower courts in the United Kingdom. In the United Kingdom’s three different jurisdictions (England and Wales, Scotland, Northern Ireland) there is a stricter system of binding precedent than in Continental legal systems which makes Supreme Court decisions binding to all lower courts and, as long as it is not regarded as clearly wrong, to the Supreme Court itself. As the binding effect only extends to the ratio decidendi of the decisions, this has led to sophisticated practises of distinguishing to demonstrate that a certain case is not covered by the ratio decidendi of a previous decision.
In the third session on filter systems for appeals to the Supreme Administrative Courts – chaired by the vice president of the Czech Supreme Administrative Court Barbara Pořízková – Rudolf Thienel, president of the Austrian Supreme Administrative Court, presented the system of administrative jurisdiction in Austria that was fundamentally restructured in 2014. Now, the Austrian Supreme Administrative Court deals mostly with final complaints against rulings of administrative courts. These are only admissible, if there is a legal question of fundamental importance to be solved in the case. This requires that either there is no existing jurisprudence of the Supreme Administrative Court on the question, the ruling of the administrative court deviates from the jurisprudence of the Supreme Administrative Court, or the question has not been answered in a uniform manner in the previous jurisprudence of the Supreme Administrative Court. Also the obligatory lawyer has to show this fundamental importance in a detailed submission. Yves Gounin, Councillor of State of the French Council of State, explained the admission procedure for cassation appeals to the French Council of State. In a non-contradictory procedure, the president of the chamber can decide alone on the admission in simple cases, i.e. if there are no doubts about the admissibility. If there are doubts, the case is passed to a judge as rapporteur for examination. If this judge proposes to admit the cassation appeal the president of the chamber can do so by order. If the judge rapporteur proposes to refuse the admission, the case is to be examined by a “rapporteur public” in preparation of a sitting of the chamber of three judges who will then decide on the admission by judgement. Elizabeth Dunne, justice of the Irish Supreme Court, explained the appellate structure of the superior courts in Ireland as reformed in 2014. Now, for an appeal to the Supreme Court against a decision of the newly created Court of Appeals to be admissible, the decision has to involve a matter of general public importance or it must be necessary in the interest of justice that there is an appeal to the Supreme Court. The reform has enabled the Irish Supreme Court to spend more time dealing with cases of significant importance rather than with every single appeal coming from a decision of the High Court.
In his closing remarks Klaus Rennert concluded that the Supreme Administrative Courts always have to fulfil three purposes: to ensure single case justice, to create or restore the uniformity and consistency of the jurisprudence and to further develop the law. In first-instance cases the first aspect is predominant, in appeals cases the others. Filter systems are supposed to concentrate the work of the Supreme Administrative Courts on their specific purposes in appeals cases. Filter systems usually have both, material criteria, like a deviation from the Supreme Administrative Court’s jurisprudence, and formal criteria, like precisely stating the deviation. Especially the formal criteria bear the danger of “oversteering” and leaving the Supreme Administrative Court with a limited overview on the diversity of cases. This is especially the case in a legal system with three instances and filters between each of them. With regard to possible binding effects Mr. Rennert identified a tension between the principles of uniformity and predictability of the jurisprudence and of judicial independence. To solve this problem the legal systems of the members offer different models: some do not have normative binding effects and the jurisprudence of the Supreme Administrative Courts only has factual effects on other cases by way of convincing reasoning. Some do not have material binding effects, but impose procedural requirements for deviations, that lead to the admission of an appeal. Finally, some decisions do have material binding effects, although there may always be a possibility to overrule the old precedent, albeit in a specific procedure, usually by an enlarged panel of the Supreme Administrative Court.
ACA-Europe is going to deepen the mutual understanding of the conditions of the jurisdictional work of its member institutions with a seminar in Brno in September, organised by the Czech Supreme Administrative Court. The seminar will treat measures to facilitate and restrict the access to administrative courts. Additionally, the General Assembly in Berlin decided to dedicate the next Transversal Analysis to gathering statistical data to enhance the comparability of the results of the three 2019 seminars.