The Principle of Effective Legal Protection in Administrative Law This collection presents a comparative analysis of the principle of effective legal protection in administrative law in Europe. It examines how European states con sider and enforce the related requirements in their domestic administrative law. The book is divided into three parts: the first comprises a theoretical introductory chap ter along with perspectives from International and European Law; part two presents 15 individual country reports on the principle of effective legal protection in mostly EU member states. The core function of the reports is to provide an analysis of the domestic instruments and procedures. Adopting a contextual approach, they con sider the historical, political and legal circumstances as well as analysing the relevant case law of the domestic courts; the third part provides a comparative analysis of the country reports. The final chapter assesses the influence and relevance of EU law and the ECHR. The book thus identifies the most important trends and makes a valu able contribution to the debate around convergence and divergence in European national administrative systems. Zoltán Szente is a professor of law and the Head of the Institute for Public Law at the National University of Public Service, and holds a Research Chair at the Institute for Legal Studies of the Hungarian Academy of Sciences, Budapest. Konrad Lachmayer holds a research chair at the Institute of Legal Studies, Centre for Social Sciences at the Hungarian Academy of Sciences. He is a senior lecturer at the Department of Constitutional and Administrative Law at the University of Vienna– Faculty of Law and is an independent researcher in Vienna. The Principle of Effective Legal Protection in Administrative Law A European comparison Edited by Zoltán Szente and Konrad Lachmayer This edition published 2017 by Informa Law from Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Informa Law from Routledge 711 Third Avenue, New York, NY 10017 Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business © 2017 Zoltán Szente and Konrad Lachmayer The rights of Zoltán Szente and Konrad Lachmayer to be identified as editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis. com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Whilst every effort has been made to ensure that the information contained in this book is correct, neither the author nor Informa Law can accept any responsibility for any errors or omissions or for any consequences arising therefrom. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this title has been requested ISBN: 978-1-472-47565-7 (hbk) ISBN: 978-1-315-55397-9 (ebk) Typeset in NewBaskerville by Apex CoVantage, LLC Contents List of figures viii List of tables ix List of abbreviations x List of contributors xii Introduction 1 ZOLTÁN SZENTE AND KONRAD LACHMAYER PART I Conceptual basis and international background 3 1 Conceptualising the principle of effective legal protection in administrative law 5 ZOLTÁN SZENTE 2 Effective legal protection in the European legal order 29 CHRISTOPH GÖRISCH 3 Creating a European-wide standard of effective legal protection: The European Convention on Human Rights 42 MARTEN BREUER 4 Effective legal protection in international law 55 STEPHAN WITTICH PART II The principle of effective legal protection in national administrative jurisdictions 71 5 The principle of effective legal protection in Austrian administrative law 73 ULRIKE GIERA AND KONRAD LACHMAYER vi Contents 6 The principle of effective legal protection in Danish administrative law 91 SØREN HØJGAARD MØRUP 7 The principle of effective legal protection in French administrative law 105 SYLVIA CALMES - BRUNET 8 The principle of effective legal protection in German administrative law 122 DIANA ZU HOHENLOHE - OEHRINGEN 9 The principle of effective legal protection in Hungarian administrative law 158 FRUZSINA GÁRDOS-OROSZ AND ISTVÁN TEMESI 10 The principle of effective legal protection in Italian administrative law 174 FULVIO CORTESE 11 The principle of effective legal protection in administrative law in Lithuania 190 JURGITA PAUŽAIT Ė - KULVINSKIEN Ė 12 Dilemmas and challenges of legal protection against administrative actions in the Republic Macedonia 218 GORDANA SILJANOVSKA-DAVKOVA AND RENATA TRENESKA-DESKOSKA 13 The principle of effective legal protection in administrative law in The Netherlands 231 KARIANNE ALBERS , LISE KJELLEVOLD AND RAYMOND SCHLÖSSELS 14 The principle of effective legal protection in Polish administrative law 250 JOANNA LEMA Ń SKA 15 The principle of effective legal protection in administrative law in Slovenia 266 ERIK KERŠEVAN 16 The principle of effective legal protection in Spanish administrative law 281 ANGEL MANUEL MORENO Contents vii 17 The principle of effective legal protection in Swiss administrative law 304 FELIX UHLMANN 18 The principle of effective legal protection in administrative law in the United Kingdom 315 ROBERT THOMAS PART III Comparative studies 337 19 The principle of effective legal protection in international and European law – comparative report 339 KONRAD LACHMAYER 20 The principle of effective legal protection in administrative law – a comparison 356 ZOLTÁN SZENTE Index 395 5.1 Separation of powers and court system 86 7.1 The procedure for the priority ruling on constitutionality ( question prioritaire de constitutionnalité: QPC ) 116 7.2 The dispute-resolution procedure 117 7.3 The system of administrative courts 117 13.1 Administrative and civil courts in the Netherlands 235 17.1 Appeal system before federal authorities 313 18.1 Judicial review claims 324 18.2 Appeals disposed by tribunals 325 18.3 The tribunal structure in the United Kingdom 326 Figures Tables 12.1 The case load of the Administrative Court 2008–2013 226 12.2 Complaints submitted to the High Administrative Court 2011–2013 227 18.1 Administrative Law processes for challenging administrative decisions 323 19.1 Interrelations of different European principles of effective legal protection 340 19.2 Influence of EU law on the domestic principle of effective legal protection 348 19.3 Influence of the ECtHR on the domestic principle of effective legal protection 350 Abbreviations ABRvS Administrative Law Division of the Council of State ( Afdeling bestuursrecht spraak van de Raad van State ) (The Netherlands) AC Aarhus Convention (Convention on Access to Information, Public Par ticipation in Decision-making and Access to Justice in Environmental Matters) ACA Federal Administrative Court Act ( Verwaltungsgerichtsgesetz , VGG) of 2005 (Switzerland) ACC Administrative Court Code ( Verwaltungsgerichtsordnung ) (Germany) of 1960 ACPA Administrative Courts Procedure Act ( Verwaltungsgerichtsverfahrensgesetz ) of 2013 (Austria) ADA Administrative Disputes Act ( Zakon o upravnem sporu ) of 2006 (Slovenia) ADR alternative dispute resolution APA Federal Act on Administrative Procedure ( Verwaltungsverfahrensgesetz , VwVG) of 1968 (Switzerland); Administrative Procedure Act ( Verwaltungsverfahrensgesetz ) of 1976 (Germany); Administrative Penal Act of 1925 (Austria) BVerfGE Federal Constitutional Court ( Bundesverfassungsgericht ) (Germany) BVerwG Federal Administrative Court ( Bundesverwaltungssgericht ) (Germany) CAA Administrative courts of appeal ( Cours administratives d’appel ) (France) CAP Code of Administrative Procedure ( Kodeks Postepowania Administracyjnego ) of 1960 (Poland) CE Council of State ( Conseil d’État ) (France) CEE Central and Eastern European CFR Charter of Fundamental Rights CJA Code of Administrative Justice ( Code de justice administrative ) of 2001 (France) CRvB Central Appeal Tribunal ( Centrale Raad van Beroep ) (The Netherlands) DDHC Declaration of Human and Civil Rights ( Déclaration des Droits de l’Homme et du Citoyen ) of 1789 (France) DWP Department for Work and Pensions (United Kingdom) ECHR European Convention for the Protection of Human Rights ECJ European Court of Justice EComHR European Commission of Human Rights ECtHR European Court of Human Rights EU European Union FAPA Federal Administrative Court Procedure Act ( Verwaltungsgerichtshofsgesetz ) (Austria) Abbreviations xi GAL global administrative law GALA General Administrative Law Act of 1994 (The Netherlands) GAPA General Administrative Procedure Act of 2005 (Macedonia); General Administrative Procedure Act ( Zakon o splošnem upravnem postopku ) of 1956 (Slovenia); General Administrative Procedure Act of 1925 (Austria) GRASP General Rules of Administrative Services and Procedures ( törvény a közigaz gatási hatósági eljárás és szolgáltatás általános szabályairól ) of 2004 (Hungary) HR Supreme Court ( Hoge Raad ) (The Netherlands) HRA Human Rights Act of 1998 (United Kingdom) LAD Law on Administrative Disputes of 2006 (Macedonia) LADC Law on Administrative Dispute Commissions (Lithuania) LAP Law on Administrative Procedure ( Administracini ų byl ų teisenos į statymas ) (Lithuania) LJCA Administrative Courts Act ( Ley de la Jurisdicción contencioso-administrativa ) of 1998 (Spain) LPA Law on Public Administration ( Viešojo administravimo į statymas ) (Lithuania) NGO non-governmental organization PAA Public Administration Act of 1985 (Denmark) PASC House of Commons Public Administration Select Committee (United Kingdom) PELP Principle of Effective Legal Protection PHSO Parliamentary and Health Service Ombudsman (United Kingdom) PIA Public Information Act (Denmark) REP Judicial review of administrative acts before an administrative court ( recours pour excès de pouvoir ) (France) SAC Supreme Administrative Court ( Naczelny Sa ̨d Administracyjny ) (Poland) SCA Federal Supreme Court Act ( Bundesgerichtsgesetz , BGG) of 2005 (Switzerland) TEU Treaty of European Union TFEU Treaty on the Functioning of the European Union TA Administrative tribunals ( Tribunaux administratifs ) (France) TAR Regional Administrative Tribunal ( tribunali amministrativi regionali ) (Italy) UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations VfSlg Official Compilation of Constitutional Court’s rulings and decisions ( Sammlung der Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes ) (Austria) Contributors Karianne Albers is an Associate Professor of Constitutional and Administrative Law at the Open Universiteit Heerlen (Netherlands). She has published on various general aspects of Dutch administrative (procedural) law, punitive administrative sanction law and state liability. Marten Breuer is a Professor holding the Chair for Public Law with reference to Euro pean Law and Public International Law at the University of Konstanz. He is the author of three reports submitted on behalf of the German Ministry of Justice on the case law of the European Court of Human Rights in non-German cases. In 2014, he attended meetings of the Drafting Group F on the Reform of the Court (GT-GDR-F) as an ad hoc expert. His main fields of research are human rights law (especially the European Convention on Human Rights), the law of international organisations and state liability. Sylvia Calmes-Brunet is an Associate Professor of Public Law at Rouen University (France), and is a Member of the Centre Universitaire Rouennais d’Etudes Juridiques CUREJ, EA 4703 (Rouen) and of the Société de Législation comparée (Paris). She teaches constitutional and administrative law and has been directing the Master 2 Services et Politiques publics since 2007. She has published in French, German and English on French and German constitutional and administrative law, and her main areas of interest are legal certainty, protection of legitimate expectations, local government, regional languages and bioethics. Fulvio Cortese is a Professor of Administrative Law at the Faculty of Law of the Uni versity of Trento, where he teaches Institutions of Public Law and Judicial Review of Administrative Action. He is a member of the European Group of Public Law. The main topics of his research work are the comparative study of liability of public administration and the analysis of methods and tools used by public bodies to coor dinate themselves. He has written a series of articles on administrative justice, school law, regional and local law and European administrative law. His fields of interest also include federalism, history of public law and memory and the law. Fruzsina Gárdos-Orosz is a Research Fellow at the Institute for Legal Studies, Centre for Social Sciences of the Hungarian Academy of Sciences since 2007 and Associate Professor at the National University of Public Service, Faculty of Political Science and Public Administration since 2014. Previously she worked at the Hungarian Constitu tional Court as a law clerk in different positions and was a regular visiting lecturer Contributors xiii at ELTE Faculty of Law. She published extensively in Hungarian on separation of powers with regard to constitutional review and on the protection of human rights. She published a book, book chapters and several articles mainly in Hungarian and English, but also in Slovakian and Russian. She is an elected member of the Advisory Board of the Hungarian Association of Constitutional Lawyers and of the Organizing Board of the Central and Eastern European Forum of Young Legal, Political and Social Theorists. Since 2015 she has been editor for the peer-reviewed law journal of the Hungarian Academy of Sciences, Acta Juridica Hungarica. Ulrike Giera is working at the Independent Austrian Energy Agency (E-Control). She wrote her Ph.D. on ‘Individual Rights in Environmental Law’. Christoph Görisch is a Professor of Law at the University of Applied Sciences for Public Administration and Management of North Rhine-Westphalia (FHöV NRW, Hagen), Department of General Public Administration, and a Senior Lecturer (Pri vatdozent) at the University of Muenster, Faculty of Law. He has published widely on German, European and comparative constitutional and administrative law in Ger man, English, Indonesian and Turkish. Diana zu Hohenlohe-Oehringen is a Senior Lecturer (Privatdozent) at the University of Frankfurt/Main, Faculty of Law and teaching public, comparative and interna tional law at Jena University. She has published widely on German, European and comparative constitutional and administrative law in German and English. Erik Kerševan is a Judge of the Supreme Court of Slovenia and a Professor of Law at the Faculty of Law, University of Ljubljana. He has also performed a function of the Secretary General to the Constitutional Court and has been a part of several working groups aimed at modernisation of public administration and administrative law in Slovenia. His main focus of research has been administrative procedural law as well as several aspects of constitutional law. Lise Kjellevold defended in 2011 at the Radboud Universiteit (Netherlands) her comparative thesis on legal protection against administrative actions in the Nether lands, Norway and Sweden. She has been a lawyer and works currently as a staff lawyer at the Dutch Bar Association. Konrad Lachmayer is Research Chair at the Hungarian Academy of Sciences, Insti tute for Legal Studies, Budapest and Research Fellow at the Durham Law School (UK). He is an independent researcher in Vienna. His research and teaching focuses on International Constitutional Law, especially the methodology of constitutional comparison, counter-terrorism activities, especially data protection, and Austrian and European public law, especially democratic legitimation, rule of law and human rights. Joanna Lema ń ska is a lecturer at Jagiellonian University in Krakow, Poland, Chair of Administrative Law at the Faculty of Law and Administration. She is also a member of the Regional Bar of Legal Advisors ( Okr ę gowa Izba Radców Prawnych ), Attorney at Law. He is currently employed in the Polish Ministry of Justice. xiv Contributors Søren Højgaard Mørup is a Professor of Public Law at Aarhus University, Department of Law, and has published mainly on Danish administrative law and law pertaining to property rights. He was a member of the committee set up by the Danish Ministry of Justice in 2014 to examine the rules on whistleblowing and the right to free speech for public employees and is currently serving on another committee examining how to strengthen the effort biker gang club houses/headquarters within the boundaries of human rights. Angel-Manuel Moreno is a Professor of Administrative Law at Carlos III University of Madrid, Spain. His teaching and research career covers different topics in the domain of public law: administrative law in general, environmental law, EU law and local government law, especially from a comparative perspective. He has published widely on those topics (in the form of books, articles and chapters in collective works) in Spanish, English and French. He is a member of the Group of Independent Experts of the Council of Europe on the European Charter on Local Self-Government and of the ‘Avosetta’ European network of environmental lawyers. Jurgita Paužait ė -Kulvinskien ė is a Professor of Administrative Law and Administrative Procedure Law at Vilnius University, Lithuania. Since 2014, she has been a Director of the Law Institute at the Ministry of Justice of Lithuania. Since 2010 she has been a member of the AEAJ (Association of European Administrative Judges). For several years, she was appointed as a Member of the Ethic Commission for Prosecutors in Lithuania. She has published widely on Lithuanian, Eastern European and compara- tive public law, especially in constitutional law, administrative and administrative pro- cedure law, judicial review and administrative justice in Lithuania, English, German and Russian. Raymond Schlössels is a Professor of Constitutional and Administrative Law at the Radboud Universiteit Nijmegen (Netherlands). Before 2002 he was an associate pro- fessor at Maastricht University (Netherlands). He has published widely on Dutch administrative (procedural) law and comparative administrative law. He has also published on damage compensation for unlawful administrative acts in French and English. Gordana Siljanovska-Davkova is a Professor of Constitutional Law and Political System(s) at the University of Ss. Cyril and Methodius, Skopje and Head of the Insti- tute for Juridical and Political Sciences. She is a member and former Vice-President of the Group of Independent Experts for the European Charter for Local Self- Government in the Council of Europe, as well as a former member of the Venice Commission (2008–2016), and former Vice-President of its Sub-Commission for Minorities (2012–2016). Her last (co)author’s books are: Civic and Uncivic Values in Macedonia , 2013, (eds) S. Ramet, Palgrave Macmillan, and Key Developments in Consti- tutionalism and Constitutional Law , 2014, (eds) L. B. Fleiner, and T. Marinkovic, Eleven Int. Publishing, The Hague. Zoltán Szente is a Professor of Law at the National University of Public Service, Department for Constitutional Law, and is a Research Chair at the Institute for Legal Studies of the Hungarian Academy of Sciences, Budapest. Since the mid-90s, he has Contributors xv been a member (since 2013 the vice-chairman) of the Group of Independent Experts (for monitoring local and regional democracy), Council of Europe. He has published widely on Hungarian and comparative constitutional law, constitutional theory, par liamentary law, local government and European constitutional history in Hungarian, English, German, Russian and Croatian. István Temesi is an Associate Professor of Law at the National University of Public Service, Institute of General Administrative Law. He has published on Hungarian and comparative administrative law, local government and administrative sciences in Hungarian, English and French as well as in German and Russian. He is member of the Association EUROPA ( Entretiens Universitaires Réguliers pour l’Administration en Europe ). Robert Thomas is a Professor of Public Law at the School of Law, University of Man chester. He has published widely on UK constitutional and administrative law, in par ticular judicial review and administrative justice. His publications include: Public Law , which is co-authored with Mark Elliott (Oxford University Press, Oxford 2nd edn, 2014) and Administrative Justice and Asylum Appeals (2011). Renata Treneska-Deskoska is a Professor of Constitutional Law at the Law Faculty ‘Ius tinianus Primus’ at the University ‘Ss Cyril and Methodius’ in Skopje. She obtained a doctoral degree at the Law faculty Ljubljana in 2002. She worked as a consultant or researcher on several projects funded by UNDP, DIFID, RSS, ABA/CEELI, EAR, LGI, OSCE etc. Since 2012, she has been a member of the Advisory Panel of Experts on Freedom of Religion or Belief of ODIHR, on the proposal of the Venice Commission. She has published widely on Macedonian and comparative constitutional law, parlia mentary law and human rights. Felix Uhlmann has been a Professor of Law at the University of Zurich, Switzerland since 2006. Together with Ulrich Häfelin and Georg Müller he edits a standard trea tise on Swiss administrative law, encompassing administrative procedure. He is also an active member of the bar, representing cases before the Swiss Administrative Court and the Swiss Supreme Court. Stephan Wittich is a Professor of Law teaching international law at the University of Vienna, Faculty of Law in Austria. His research focuses on international courts, inter national procedural law, immunities, international treaty law and responsibility. Introduction After the wave of comparative studies inspired by the Europeanisation of national administrative systems, 1 and by the emergence of ‘global’ rules and proceedings of administration, comparative administrative law got a new impetus in recent years 2 when the comparison has been focused on particular administrative principles like legitimacy, 3 or protection of legitimate expectations. 4 In this book, we want to con tinue this work studying the principle of effective legal protection, another fundamen tal principle of administrative law. Procedural fairness is a substantial requirement of the rule of law principle whenever public power is exercised. According to this prin ciple, the government – and its agencies – are bound by law, and it can prevail only if procedural rules are respected by all public authorities. It has significance not only for the better acceptance of the individual decisions of state institutions, but also for building a democratic consensus and legitimacy in society. We explore this principle at European and national levels as well, but our main objective in this book is to study the various national understandings and practices of effective legal protection in administrative law. For this purpose, we examine how this principle has been developed and used by the European Court of Justice and the European Court of Human Rights, and what it means in the general interna tional law. Then, the institutions, procedures and rights of effective legal protection are analysed in 14 national jurisdictions. These countries represent all legal cultures, administrative systems and regions of contemporary Europe. Studying our topic, we use a comparative and legal method. By a general com parison of the national situations we examine if there are general trends in the development and the application of this principle. In order to compare the relevant legislation and practice of the various countries, all authors of these chapters used a common analytical framework. It meant the use of certain standard elements and, as far as it was possible, similar methodology in describing and analysing the national situations. Thus, each country report follows more or less the same structure describ ing the historical development of this principle, the current constitutional landscape 1 E.g. Karl-Heinz Ladeur (ed.), The Europeanisation of Administrative Law: Transforming National Decision- Making Procedures (Ashgate, Aldershot 2002). 2 Susan Rose-Ackerman and Peter L. Lindseth (eds.), Comparative Administrative Law (Edward Elgar, Chel tenham, Northampton 2010). 3 Matthias Ruffert (ed.), Legitimacy in European Administrative Law: Reform and Reconstruction (Europa Law Publishing, Groningen 2011). 4 Kari Anneken Sperr and Diana zu Hohenlohe-Oehringen (eds.), The Protection of Legitimate Expectations in Administrative Law: A Comparative Study (Hart Publishing, Oxford 2016 [forthcoming]). 2 Introduction analysing the most important domestic instruments and procedures, and the relevant effects of European law. Secondly, we apply a legal approach to public administration, rather than a managerial-organisational or political outlook. 5 This follows from the inherently legal nature of the procedural fairness that is the subject of this enterprise. In the course of our research project, we combined two approaches of the system of effective legal protection of individual rights and legitimate interests. The so-called ‘rights-based perspective’ has provided a conceptual framework for expounding the available rights of individuals to legal remedy in national jurisdictions. For this objec tive, we have defined and elaborated those rights which have relevance here. Since there are significant differences between the examined countries in defining these rights, and in their importance, we did not give a closed list of the ‘relevant’ rights, rather, we used a ‘functional’ approach to assist the identification of them. Apparently, the effective legal protection of rights in administrative law presup poses an institutional system guaranteeing or enforcing individual rights. The ‘institu tional approach’ relates to mechanisms of institutional settings existing in the various countries. In this part of the research, the organisation, the scope of responsibility, or the working method of the various courts, tribunals or other institutions were rel evant, but only as far as they have importance for the protection of individual rights of the citizens. This book follows in three major parts the research project as introduced above. Part I begins a conceptualisation of the principle of effective legal protection in administrative law, defining core issues and elaborating the conceptual framework of our research. The other studies of this part analyse this principle on a European level, mainly in the jurisprudence of international/European courts. Part II includes collections of the country studies analysing the present situation of this imperative in the national administrative jurisdictions of the Western and the CEE countries. As a matter of fact, characteristic differences have not been revealed between these groups of countries. In the last section, Part III, we finally provide comparative studies and share some conclusions. After all, this book does not only present a detailed study of a core principle of the administrative law in Europe, but can also contribute to a general scholarly debate on the minimum requirements of basic rights in those situations, when individuals come into contact with governmental authorities, and when the exercise of public power directly affects their rights and interests. This book is based on a research project of the Institute for Legal Studies of the Hungarian Academy of Sciences, and was partially financed by the National Univer sity of Public Service, Budapest. The first drafts were discussed by the participants of the research project in an international seminar held in Budapest in June 2014. We would like to thank all contributors to this book and participants of the Buda pest conference. Moreover, we thank Alison Kirk for her professional support in pub lishing this book with Routledge. Zoltán Szente and Konrad Lachmayer Budapest/Vienna 5 For these possible approaches of administrative studies see David H. Rosenblom, ‘Public Administration Theory and Separation of Powers’ in Julia Beckett and Heidi O. Koenig (eds.), Public Administration and Law (M. E. Sharpe, Armonk 2005) 7–21. Part I Conceptual basis and international background