On 27 April 2023, the Latvian Supreme Court and ACA-Europe organised the seminar “The judge and inert administration. Administrative discretionary power” in Riga, Latvia.It was the last seminar of the Italian presidency. The seminar was attended by more than fifty participants representing the Councils of State and Supreme Administrative Courts of the 28 ACA-Europe member states, as well as the Court of Justice of the European Union.
The seminar commenced with warm welcome speeches, setting a tone for the day and emphasising the significance of the topic at hand.
The seminar was opened by the President of Latvia, Mr Egils Levits, who honoured the participants with a speech emphasising the role of administrative justice in protecting the values of a democratic system of states. He also outlined the impact of the historical events on the development of administrative procedures in Europe and encouraged the participants to reflect on the current challenges in applying legal norms.
Also, such distinguished persons as the President of the Supreme Court of Latvia, Mr Aigars Strupišs, and Deputy President of the Council of State of Italy, Mr Carmine Volpe, graced the opening session of the seminar with their speeches sharing their valuable insights on the importance of the topic of the seminar.
The seminar was structured in three panel discussions. To initiate a comprehensive discussion, each panel consisted of a presentation by representatives of three member states, presenting their national approach and experience on the particular issue.
The first panel, expertly moderated by Dr. Edvīns Danovskis, Associate Professor of the University of Latvia, was devoted to a discussion on administrative discretionary power. Rapporteur of the first panel discussion Dr. hab. Jacek Chlebny, President of the Supreme Administrative Court of Poland, presented the concept of administrative discretion in Polish case law. Dr. Anna Sporrer, Vice President of the Supreme Administrative Court of Austria, focused her presentation on the analysis of the discretionary power of administrative authorities and the review of use of discretionary power by the administrative courts in Austria. Finally, Anita Kovaļevska, judge of the Department of Administrative Cases of the Supreme Court of Latvia, presented the Latvian perspective of judicial review of the use of administrative discretionary powers.
The discussion addressed national views on discretionary power, the distinction between discretion and the margin of appreciation in the interpretation of undefined legal concepts, and the limits of judicial review. The discussion revealed a similar understanding among Member States on the core of discretion. However, differences emerged on the content of discretion – whether a distinction should be made between the discretion in its narrow sense and the margin of appreciation in the interpretation of undefined legal concepts – and consequently on the extent of judicial review over the use of discretionary power by the authorities.
The first panel discussion was also attended by the President of Latvia, who presented his vision of the competence and tasks of administrative courts in reviewing decisions of the authorities. The President's opinion attracted wide interest from the audience.
The second and third panels of the seminar were focused on issues of inert administration and the role and competence of the courts in this regard.
The second panel was skillfully moderated by Mrs Laila Medina, Advocate General of the Court of Justice of the European Union. Rapporteur Mr Luigi Carbone, President of Section of the Council of State of Italy, presented the concept of administrative silence in Italy, emphasizing that it is important not only to protect the rights and interests of those affected by administrative silence but also to establish mechanisms to prevent such administrative silence. Dr. Barbara Pořízková, Vice President of the Supreme Administrative Court of the Czech Republic, focused her presentation on the topic of expanding the scope of judicial protection against inert administration, pointing out that Czech courts have long tried to find a balance between, on the one hand, the effective protection of individual rights and interests of the State and the wording of the statutes on the other hand. The equilibrium moved from a positivist insistence on the letter of the law to a greater (but not unlimited) protection of rights. Lastly, Mr Yves Gounin, State Councillor of the Council of State of France, presented the French experience of control of administrative silence and the impact of the transition from a negative model of administrative silence (silence is refusal) to a positive model of administrative silence (silence is acceptance) as a general principle.
The third and final panel was adeptly moderated by Mrs Ieva Višķere, judge of the Department of Administrative Cases of the Supreme Court of Latvia. Rapporteur Dr. Suzana Maria Calvo Loureiro Tavares da Silva, judge of the Supreme Administrative Court of Portugal, presented Portuguese legal remedies to inert administration. Mrs Iskra Aleksandrova, judge of the Supreme Administrative Court of Bulgaria, outlined regulation of the negative and positive model of administrative silence in Bulgarian legislation and judicial practice in case of administrative silence. Finally, Mr Eric Thibaut, Deputy Auditor General of the Council of State of Belgium, focused on the cross-limits of judicial review of the use of the administrative authority’s discretionary power of assessment in Belgian law.
The second and third panel discussions highlighted that the administrative silence can lead to various legal consequences. In particular, the silence of the authorities may be considered as a tacit rejection of the claim or, in the opposite case, a claim not refused in due time may be deemed to have been granted. At the same time, administrative silence also may not have any specific effects and mean neither refusal nor granting of the claim, however, a person may, for example, take action against the authority's inaction. The discussion revealed that there are many common aspects in national conceptions of the administrative silence, however the most extensive discussion focused on the differences – the protection of personal rights in the case of administrative silence and the right of the authority to take a decision that differs from the earlier tacit decision.