Use and Abuse of Administrative Discretion: who is the controller

1. Use and Abuse of Administrative Discretion: who is the controller? Administrative discretion and the rule of law UNIDEM CAMPUS SEMINAR Trieste, Italy, 12-15 April 2010

2. Judicial control on administrative action under art. 6 (1) ECHR The ECHR and the Court of Strasbourg case law have significantly contributed to the enforcement of the judicial review of administrative action. To protect an effective right to access to a tribunal against administrative act: Extension of the concept of �tribunal� Extension of the concept of �civil rights and obligations� Alessia - Ottavia Cozzi

3. Judicial control on administrative action under art. 6 (1) ECHR In the ECHR Court case law, the concept of �tribunal� doesn�t apply only to judicial bodies as part of the judiciary (Campell and Fell v. UK, 1984) It extends to all authorities that apply legal provisions to adjudicate litigations as a result of a proceeding conducted with full jurisdiction. A � tribunal� is also an administrative body entitled of the power of quashing administrative decisions on the ground of facts as well as on the ground of law To have a �tribunal� under art 6 EHCR, the decision of the administrative body must be compulsory and it should not be modified by other non judicial authorities (Savino and others v. Italy, 2009, on labour disputes of employers of the Italian Parliament) Alessia - Ottavia Cozzi

4. Judicial control on administrative action under art. 6 (1) ECHR I. The applicability of art. 6 (1): as to the civil nature of the right Art. 6 covers all proceedings the result of which is decisive for private rights and obligations, whatever the character of either the legislation that governs how a matter is to be determined or the authority exercising jurisdiction in the matter (Ringeisen v. Austria, 1971). Art. 6(1) applies to proceedings whose outcome has a direct bearing on the determination and/or substantive content of a private right or obligation (Konig v. Germany, 1978). Where a right is set forth in the domestic law of the State, the Court will most often consider it a civil right in the sense of art. 6(1). Particularly, art. 6(1) is applicable notwithstanding the origin of the dispute and the fact that the administrative courts have jurisdiction (Procola v. Luxembourg, 1995). Even if the application to an administrative court could only result in the annulment of the impugned administrative orders, that annulment would enable the applicant to redress his or her right (Procola v. Luxembourg, 1995). Alessia - Ottavia Cozzi

5. Judicial control on administrative action under art. 6 (1) ECHR II. The applicability of art. 6 (1): whether there was a dispute concerning a right In order for art. 6 to apply in the civil context, a �dispute� over a civil right must exist. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Alessia - Ottavia Cozzi

6. Judicial control on administrative action under art. 6 (1) ECHR III. Compliance with art. 6 (1): independence the manner of appointment of its members and their term of office the existence of safeguards against outside pressures the question whether it presents an appearance of independence. Alessia - Ottavia Cozzi

7. Judicial control on administrative action under art. 6 (1) ECHR III. Compliance with art. 6 (1): on the appointment of judges The judges in charge of the control of public administration are characterized by the fact that one of the parties of the litigation is a public institution, sometimes an elected body; From their nomination throughout their career they have to be especially protected from external pressure. Even in countries very committed to the separation of powers, the Parliament or the Chief of the State nominate the highest courts� judges. As a guarantee of their independence, in many countries a Council of the judiciary was created, to take decisions on appointment, mobility promotion, sanction of administrative judges (as well as ordinary judges) Alessia - Ottavia Cozzi

8. Judicial control on administrative action under art. 6 (1) ECHR III. Compliance with art. 6 (1): impartiality The tribunal must be subjectively free of personal prejudice or bias The tribunal must be impartial from an objective viewpoint, offering sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges� personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (Findlay v. United Kingdom, 1997; Morris v. the United Kingdom, 2002). The concepts of independence and objective impartiality are closely linked and the Court often considers both issues together (Findlay v. the United Kingdom) In deciding whether in a given case there is a legitimate reason to fear that these requirements of independence and impartiality are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark,1989,� 48). Alessia - Ottavia Cozzi

9. Judicial control on administrative action under art. 6 (1) ECHR III. Compliance with art. 6 (1): the concept of separation of powers The Court usually states that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers� interaction. The question is always whether, in a given case, the requirements of the Convention are met. The Court does not apply any particular doctrine of constitutional law to the position of courts, both ordinary and administrative. The Court is faced solely with the question whether, in the circumstances of the case, administrative courts had the requisite �appearance� of independence, or the requisite �objective� impartiality. Alessia - Ottavia Cozzi

10. The ECHR case law on the coexistence of advisory and judiciary competences Relevant cases: Procola v. Luxembourg, no. 14570/89, 28.9.1985; McGonnell v. United Kingdom, no. 28488/95, 8.2.2000; Kleyn and others v. The Netherlands, no. 39343/98, 6.5.2003; Sacilor Lormines v. France, no. 65411/01, 9.11.2006. Alessia - Ottavia Cozzi

11. Procola v. Luxembourgjudgment of 28th September 1985 THE FACTS The case relates to the milk quota system provided by EC law in order to regulate and stabilise the market of milk products. Each EU member State was allocated a total reference quantity of milk which it had to apportion among milk producers or purchasers. An additional levy was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity. To implement the quota system, Luxembourg adopted a number of ministerial orders, allocating reference quantities for milk purchase. Procola was a dairy constituted as an agricultural association; it appealed to the Judicial Committee of the Council of State against the decisions fixing the reference quantities. In a first judgment, after a preliminary ruling of the Court of Justice of the EC, the Council of State held that the choice of 1981 as the reference year for quotas had led to discrimination between purchasers contrary to art. 40, par. 3, TCE. The impugned decision was set aside and the case referred to the Minister of Agriculture for a fairer apportionment of the reference quantities. Alessia - Ottavia Cozzi

12. Procola v. Luxembourgjudgment of 28th September 1985 The Minister of State submitted a new draft regulation; in order to meet Luxembourg�s obligations under EC law, it was proposed to make the new reference system applicable not only in the future, but also retrospectively to previous milk production years. The draft regulation was submitted to Council of State for an advisory opinion. In a letter, the President of the Council of State drew the Prime Minister�s attention on the fact that such rules could have retrospective effect only through legislation and not by means of regulation. A new bill was adopted together with the regulation, which made the regulation applicable with retrospective effects. The Procola association challenged the new regulation before the Council of State, but the appeal was subsequently dismissed because �it was open to the legislature to give retrospective effect to a statute, in so far as it is not prohibited by the Constitution; Luxembourg was required to fill the legal vacuum created by the Judicial Committee�s first judgment and a plea of unlawfulness cannot succeed against a statute�. Alessia - Ottavia Cozzi

13. Procola v. Luxembourgjudgment of 28th September 1985 THE LUXEMBOURG CONSEIL D�ETAT: COMPOSITION The Council of State was composed by 21 councillor, 11 of whom forming the Judicial Committee; All members were appointed by the Grand Duke (Chief of the State), who choose them directly or from a list of candidates put forward by the Chamber of Deputies or the Council of State itself; Some qualifying conditions were requested for becoming a member of the Council; the members of the Judicial Committee must be doctors in law; In principle, the term of the office ended only when the member reached the age limit; The duties of the members were not full-time and were incompatible only with serving as a member of the Government, a Government adviser or a member of the Parliament Alessia - Ottavia Cozzi

14. Procola v. Luxembourgjudgment of 28th September 1985 THE LUXEMBOURG CONSEIL D�ETAT: FUNCTIONS The Council of State has mainly advisory and judicial functions (art. 76 Const.) With regard to its advisory functions, the Council gives its opinion on all Government and private members� bill, draft regulations on general administrative matters, and drafts regulations or orders required for the implementation of treaties; As a judicial body, the Council, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings. Its judicial power his restricted in two respects: - it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; - except where there is an express statutory provision to the contrary, the only remedy available against these decisions is judicial review on the ground of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests. Alessia - Ottavia Cozzi

15. Procola v. Luxembourgjudgment of 28th September 1985 The applicant association pointed out that 4 of the 5 members sitting on the Judicial Committee when it ruled on its application had previously sat on the advisory panel of the Council which had given the advisory opinion Alessia - Ottavia Cozzi

16. Procola v. Luxembourgjudgment of 28th September 1985 43. The Court considers that in the instant case it is not necessary to determine whether the Judicial Committee was an independent tribunal. The applicant association did not put in doubt the method of appointing the Conseil d'Etat's members and the length of their terms of office or question that there were safeguards against extraneous pressure. 44. The only issue to be determined is whether the Judicial Committee satisfied the impartiality requirement of Article 6 (art. 6) of the Convention, regard being had to the fact that four of its five members had to rule on the lawfulness of a regulation which they had previously scrutinized in their advisory capacity. 45. The Court notes that four members of the Conseil d'Etat carried out both advisory and judicial functions in the same case. In the context of an institution such as Luxembourg's Conseil d'Etat the mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution's structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question, and this makes it unnecessary for the Court to look into the other aspects of the complaint. Alessia - Ottavia Cozzi

17. McGonnel v. UKJudgment 8 February 2000 The facts The applicant made a number of planning applications to permit residential use of the land in the State of Guernsey. The applications were refused by the competent public administration and an appeal before the Royal Court was dismissed. The senior judge of the Royal Court was the Bailiff. The Bailiff is appointed by Her Majesty, represents the interest of the Island before the Crown. As an official of the State, he is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the Administration As President of the States of Deliberations, the Bailiff participated to the adoption of a Detailed Development Plan, a plan on the use of the territory also related to the applicant�s land. Alessia - Ottavia Cozzi

18. McGonnel v. UKJudgment 8 February 2000 THE LAW 50. The Court first observes that there is no suggestion in the present case that the Bailiff was subjectively prejudiced or biased when he heard the applicant�s planning appeal. (...) 51 . The Court can agree with the Government that neither art. 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concept as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with the question whether the Bailiff had the required �appearance� of independence, or the required �objective� impartiality. 52. In this connection, the Courts notes that the Bailiff�s functions are not limited to judicial matters, but that he is also involved in non judicial functions on the island. The Court does not accept the Government�s analysis that when the Bailiff acts in a non-judiciary capacity he merely occupies positions rather than exercising functions: even a purely ceremonial constitutional role must be classified as a �function� (...) Alessia - Ottavia Cozzi

19. McGonnel v. UKJudgment 8 February 2000 53. The Court observes that the Bailiff in the present case had personal involvement with the planning matters at the heart of the applicant�s case on two occasion, ...when he presided over the States of Deliberation at the adoption of the Detailed Development Plan n. 6; ... when he presided over the Royal Court in the determination of the applicant�s planning appeal 54. ... (Referring to Procola case), the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubts on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or the rules at issue (i.e. the Bailiff not only presided the States of the Deliberation, but he could also exercise a casting vote; the States of Deliberation passed the regulation at issue). 57. The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when the DDP n. 6 was adopted is capable to casting doubts on his impartiality, when he subsequently determined, as the sole judge of the law in the case, the applicant�s planning appeal. The applicants therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court (...) Alessia - Ottavia Cozzi

20. McGonnel v. UKJudgment 8 February 2000 Resolution of Committee of Ministers no. 2001-120 Le Tribunal royal (Royal Court) de Guernesey a adopt� une Directive pratique n��1 de 2001 qu�ent�rine officiellement et �tend la r�cente pratique informelle concernant les poursuites administratives, apr�s l�arr�t de la Cour europ�enne des Droits de l�Homme dans cette affaire (� compter du 31 mai 2000, le Bailli (Bailiff) n�est plus ni pr�sident, ni membre des trois comit�s ci-apr�s�: Comit� des nominations, Comit� de l�gislation et Comit� du r�glement). A cet �gard, � l�ouverture de l�audience de toutes poursuites administratives, les avocats de toutes les parties seront tenus d�indiquer si leurs clients respectifs font objection � ce que le pr�sident du tribunal si�ge dans l�affaire en question, et dans l�affirmative, de pr�ciser les motifs d�une telle objection. Il incombe en cons�quence aux avocats d�obtenir pr�alablement � l�audience toutes instructions pertinentes en la mati�re. Pour permettre aux avocats d�obtenir des instructions satisfaisantes, le pr�sident du tribunal les informera par �crit, avant l�audience de ce dont il se souvient de sa participation ant�rieure, sous quelque forme que ce soit, aux questions � examiner ou � trancher par le Tribunal. Le Gouvernement du Royaume-Uni a �galement fait savoir qu�ind�pendamment d�une large diffusion, notamment dans la presse locale (The Guernesey Globe et The Guernesey Press) ainsi que dans des recueils de jurisprudence largement distribu�s, l�arr�t de la Cour europ�enne des Droits de l�Homme a �t� transmis � toutes les autorit�s directement concern�es Alessia - Ottavia Cozzi