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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Administrative Disputes in Civil Law Jurisdictions

Lana Ofak

Rule of law — Administration of justice — Judicial review — Judicial power — Individual rights

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition of Administrative Dispute, its Origin and Evolution

1.  Administrative dispute (contentieux administratif, Verwaltungsstreit) is a legal institution which was created by the legal theory and practice at the beginning of the nineteenth century. Such an institution was established in order to ensure objective legality, as well as the protection of individual rights. According to the theory of administrative law, administrative dispute is a form of providing judicial control over the legality of the decisions of public authorities and their officials, including the legality of their failures to take a decision. It is the mechanism which ensures that the public authorities (state organs, local authorities, independent administrative authorities, and public institutions) that exercise public power are subject to the law.

2.  The constitutional significance of administrative disputes stems from the fact that an effectively functioning system of administrative disputes gives effect to the rule of law (l’état de droit, Rechtsstaat). The need to establish control over the activities of public authorities arises from the fact that they perform numerous and very diverse tasks, and that there is a possibility that their actions could be unlawful. Thus, there is a pressing necessity to organize control over the activities of public authorities, which would provide for the full protection of the legality principle and the rights of citizens (administrative control). The main political idea underlying the concept and organization of administrative disputes is that public authorities should not be judges in their own cause (nemo iudex in causa sua) (Krbek 230). The principle of separation of powers, under which one power (judicial) checks the other (executive), has played the most important role in the development of the concept of administrative disputes (Borković 483) (checks and balances; judicial power; executive power). The control must be assumed by the independent judicial authorities, which will primarily have in mind the principle of legality (Krbek 230). The mere existence of judicial control deters public authorities from the adoption of unlawful acts and forces them, out of the fear that their acts could be subjected to administrative disputes, to strictly adhere to the law (Krbek 230). The introduction of an administrative dispute contributes to the strengthening of legality in the activities of public authorities and reduces the occurrence of violations of the law.

3.  Upon the implementation of the principle of legality, and in search of the practical guarantees of that principle in the nineteenth century, all civil democracies of the European continent have encountered the problem of whether the adjudication of administrative disputes should be given to the courts of general jurisdiction or to the administrative courts (Krbek 237). In fact, the comparative analysis given in this article will show that the constitutional regulation of administrative disputes mostly deals with the question of which court should have the jurisdiction for resolving these disputes. To simplify a complex issue of different models of administrative jurisdiction, in the beginning of the development of administrative disputes there were essentially two distinct systems: (1) the continental or European system whereby administrative disputes were resolved by administrative courts; and (2) the Anglo-Saxon system according to which the resolution of administrative disputes was entrusted to the courts of general jurisdiction (Popović 57–85). Furthermore, the continental or European system was not unique, since there were (and still are) differences between individual European countries.

4.  There are two basic models of continental administrative jurisdiction—the French and the German. The main characteristic of the French model is that the first administrative court (Conseil d’État) was created as a part of the administrative branch of the state, and not as a part of the judiciary. Within the continental system of administrative jurisdiction, the German model was distinguished from the French model primarily by the fact that, under the German model, administrative disputes are resolved by administrative courts which are part of the judicial branch and are in no way connected with the executive branch of government. Such different developments occurred as a result of the specific circumstances of economic, political, and social relations which existed at that time in France (Braibant 403). Leaders of the French Revolution wished to prevent the courts from interfering with political affairs, even when decided by the executive power (Auby and Cluzel-Métayer 79). This was done by the Law of 16–24 August 1790, Article 13 of which provides that judicial functions are distinct and will always remain separate from administrative functions; it shall be a criminal offence for the judges of the ordinary courts to interfere in any manner whatsoever with the operation of the administration, nor shall they call administrators to account before them in respect of the exercise of their official functions (Brown and Bell 46). Since the redress to ordinary courts was not possible, it was necessary to ensure the right of citizens to appeal against the administration. This led to the creation of the Conseil d’État. Under its present form, the Conseil d’État was established by Article 52 of the constitution adopted on 13 December 1799, which stated that, under the direction of the Consuls, a Council of State shall be responsible for drafting the bills and regulations of public administration and for solving difficulties arising in administrative matters (Constitution of the Year VIII: 13 December 1799 (Fr)).

5.  Today, the model of administrative courts, inspired by the French Council of State, has been adopted in the majority of European countries. For instance, a Council of State was founded (or, in some cases, an already existing Council of State started to perform the functions of an administrative court) in Luxembourg (1856), the Netherlands (1861), Turkey (1869), Italy (1889), Greece (1911), Belgium (1946), and Egypt (1946). A Supreme Administrative Court was established in Austria (1867), Sweden (1909), Bulgaria (1912), Czechoslovakia (1918), Finland (1918), and Poland (1922), and the Royal Administrative Court was set up in Hungary (1896). The French Council of State also inspired countries on other continents, as the comparative analysis in this article will demonstrate.

B.  Delineation of Overlapping Concepts

6.  Administrative dispute in common law countries is known under the term ‘judicial review (of administrative action)’ (Bell 1261). Judicial review is the mechanism by which the legal validity of the decisions of public authorities can be challenged before the court. The analysis in this article shall not cover this topic in detail, since it is explained elsewhere.

7.  Administrative disputes in common law countries are adjudicated by the ordinary courts which also resolve the disputes between private persons. Public authorities are subject to the common law like ordinary citizens. The traditional constitutional basis for these principles was developed by a renowned constitutional lawyer, AV Dicey, in his Introduction to the Study of the Law of the Constitution, first published in 1885. Dicey stated that: ‘[i]n England, and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law and the very principles on which it rests are in truth unknown’ (Dicey 215). According to Dicey, the rule of law includes three conceptions: (1) absence of arbitrary power on the part of the government; (2) subjection of every man to ordinary law administered by the ordinary courts; and (3) the conclusion that the constitution is the result of the private law as enforced by the ordinary courts (Dicey 110–121; Schwarze 140). Walters explains that Dicey’s opposition to French administrative law is often associated with a form of ‘late-nineteenth-century individualism’ that perceived the ‘threatening acceptance’ of discretionary power intended for the purpose of achieving collective goals within the continental legal systems as inconsistent with ‘laissez faire liberalism’ (Walters 57). Dicey’s theory, although criticized even during his lifetime, had a great influence and seemed to have hindered the development of administrative law in the United Kingdom (Thompson and Jones 221). In France, on the other hand, the establishment of the Conseil d’État led to its crucial influence on the development of the administrative law. The main body of French administrative law can be considered as the creation of Conseil d’État (Schwarze 102).

8.  Over the past fifty years, English administrative law has significantly developed and is now considered in a more positive light (Thompson and Jones 221). The Administrative Court, the work of which comprises the administrative law jurisdiction of England and Wales, was established in 2000. It is one of the courts of the Queen’s Bench Division of the High Court.

9.  In addition, the Tribunals, Courts and Enforcement Act 2007 replaced the collection of separate tribunals, which had been created on an ad hoc basis to adjudicate various disputes between individuals and the administration, with a single juridical structure (Elliott and Thomas 298).

C.  Two Basic Models of Organizing Administrative Disputes in Civil Law Countries

1.  France

10.  In France, administrative disputes and administrative jurisdiction are not subject to any provision of the constitution (Constitution of the French Republic: 4 October 1958 (as Amended to 23 July 2008) (Fr)). The constitution only addresses the ordinary courts (Title VIII – On Judicial Authority) which are called juridictions judiciaires as opposed to juridictions administratives. However, the Constitutional Council of France (Conseil Constitutionnel), in its decision rendered on 22 July 1980, stated that among the fundamental principles recognized by the laws of the Republic, the independence of the administrative jurisdiction is also guaranteed, as well as the specific nature of its functions, upon which neither the legislator nor the government may encroach (Decision No 80-119 DC (22 July 1980) (Fr), para. 6). Furthermore, in its decision issued on 23 January 1987 (Decision No 86-224 DC (23 January 1987) (Fr)) the Constitutional Council confirmed that a limited separation between the administrative and the ordinary courts was a constitutional requirement (Brown and Bell 127). It stated that among the fundamental principles recognized by the laws of the Republic is the principle according to which, with the exception of matters reserved by nature to the judiciary, the jurisdiction of the administrative court covers the annulment or alteration of decisions taken in the exercise of the public powers by authorities exercising executive power, their agents, local authorities of the Republic, or public bodies placed under their authority or their control (Decision No 86-224 DC (23 January 1987) (Fr), para. 15).

11.  The administrative courts system in France has three layers: the Council of State at the top, administrative courts of appeal in the middle, and the administrative tribunals at the bottom (Auby and Cluzel-Métayer 79). In addition to the administrative tribunals and the administrative courts of appeal, there are also specialized courts: Court of Auditors, Budget and Finance Disciplinary Court, Central Commission of Social Aid, Supreme Judicial Council, which rules on disciplinary matters and disciplinary sections of professional bodies, and the National Court of Asylum, which rules on appeals against refusals to grant refugee status. The Council of State acts as the court of cassation for these bodies.

(a)  Essential Characteristics of Administrative Disputes

12.  Administrative disputes are traditionally divided into four types classified in accordance with the extent of the court’s powers. The author of this fourfold distinction is Edouard Laferrière (Traité de la juridiction administrative et des recours contentieux (1887)). The first type is contentieux de l’annulation, in which the court is authorized to decide on the matter of legality and to annul the contested administrative decision. The second type is contentieux de pleine juridiction, in which the court has the power not only to annul the administrative decision but also to allocate compensation. In some specific contentieux de pleine juridiction the court also has the power to amend or replace the administrative decision (Auby and Cluzel-Métayer 82; Schwarze 109). The third type is contentieux de l’interprétation, where the administrative court explains the legal meaning of the administrative decision. The last type is contentieux de la répression, in which the administrative court acts as a criminal court and punishes a wrongful action of the individual in relation to the administration (Brown and Bell 178–180).

13.  This traditional classification has been criticized as unscientific (Brown and Bell 180). Léon Duguit (Traité de droit constitutionnel, Tome 2 (1923)) argued that the distinction should be according to the nature of the question in issue (Brown and Bell 180–181). If the question in issue is the breach of some rule of law of general application which the administration should observe, then the administrative dispute falls in the category of contentieux objectif. If the question in issue is the violation of some subjective right of the plaintiff, then the category is called contentieux subjectif (Brown and Bell 181).

14.  The most important type of action under the contentieux de l’annulation is the recours pour excès de pouvoir, which is the most frequent action before the administrative tribunals and courts (Auby and Cluzel-Métayer 82, Schwarze 109). It can be used against administrative acts (actes administratifs unilatéraux), which include both individual decisions and regulatory acts. In order for the action to be admissible, the plaintiff must have standing (locus standi). Action against the administrative act serves the objective purpose of reviewing the lawfulness of administrative action. The grounds for review include lack of competence (incompétence), procedural irregularity (vice de forme ou de procédure), violation of the law (violation de la loi), motivational illegalities (vices des motifs), and illegality of the purpose of the decision (détournement de pouvoir) (Auby and Cluzel-Métayer 87). Although the Council of State does not admit an actio popularis available to every citizen, it has accepted a very wide concept of intérêt pour agir. The interest does not necessarily mean a material or economic interest; it can also be a moral or an ideological one (eg in the case of non-governmental organizations defending the environment) (Auby and Cluzel-Métayer 84–85).

(b)  Acts Excluded from Administrative Disputes

15.  There are certain categories of administrative acts that cannot be challenged before the court; the only possibility is that the authors of such acts recall them (Braibant 224). The list of such acts which are excluded from administrative disputes is defined by the Council of State and has been reduced over the years. There are two kinds of acts that are not open to challenge before the court—acts of state (actes de gouvernement), and measures of internal organization (mesures d’ordre intérieur) (Braibant 224–227; Auby and Cluzel-Métayer 83–84; Brown and Bell 159–164).

16.  At first, the category of actes de gouvernement was defined by the purpose of the act. If the act had a political purpose (mobile politique), it was considered to be an acte de gouvernement. This theory was abandoned in the judgment Prince Napoléon (Decision No 46707, Conseil d’État, (19 February 1875) (Fr)). Today, if an administrative act is passed for political reasons, it is tarnished with illegality and may be challenged before the court (Braibant 225). However, there are still some decisions that fall into the category of actes de gouvernement and are excluded from the administrative disputes. The first of these are decisions taken by the government or president in their relations with the parliament, eg decision of whether to issue a bill, declaration of urgency, promulgation of statutes, etc. The second group is decisions taken by the government or the president in relations with foreign states and international organizations, eg decisions concerning the negotiation of an international agreement, ratification of a treaty, etc. (Auby and Cluzel-Métayer 84).

17.  Mesures d’ordre intérieur are regarded as no more than ‘the administration putting its own house in order’ and are not normally open to administrative disputes (Brown and Bell 159). Traditionally, this category refers to decisions taken by the authorities in schools, armed forces, and prisons, because they were considered as matters of pure internal organization (Auby and Cluzel-Métayer 83). However, this category has eventually been reduced. The administrative measure may become, because of its gravity, an acte administratif within the jurisdiction of an administrative court (Brown and Bell 159).

(c)  Control over Discretionary Administrative Decisions

18.  If the administration is under a mandatory duty and has no discretion (compétence liée), the task of the administrative court is to examine whether the administration has failed to observe the law (Brown and Bell 253–254). In French administrative law, discretion exists when the administration has the power to make choices between two or several courses of action, or where, even though the goal is specified, a choice exists as how that goal should be reached (Auby and Cluzel-Métayer 77). Discretion does not include the possibility of opting for a lawful solution or an unlawful one, but of opting between two or more lawful solutions (Auby and Cluzel-Métayer 77) (administrative discretion).

19.  Only in exceptional cases of actes de gouvernement do the courts have no control over the administration. In all other cases, the administrative court will ensure that the principle of legality has been respected. If the decision, the legality of which is to be assessed, was made in exercising discretionary power, the administrative court will control whether the decision is based on error of fact, error of law, or an abuse of power (détournement de pouvoir), but the control of the legal appraisal of the facts (qualification juridique des faits) is limited to manifest error (erreur manifeste d’appréciation) (Braibant 205–206). Braibant (206) observes that the administration has the right to be wrong in its assessment, but it has no right to make an obvious mistake or mistake that is characterized either by its severity or by its obviousness.

2.  Germany

20.  Contrary to what has happened in France, where the development of administrative jurisdiction was formed by a central institution, the Council of State, the German system developed ‘from the bottom’, ie from the Länder (Schwarze 115). German administrative jurisdiction in its modern form developed in the second half of the nineteenth century. The first independent High Administrative Court was created in Baden in 1863 (Gesetz, die Organisation der inneren Verwaltung betreffend, RegBl S 399 (Ger)), followed by Prussia (1872), Württemberg (1876), and Bavaria (1878). Until 1924, administrative courts were established in all of the German states.

21.  The German Basic Law (Basic Law of the Federal Republic of Germany: 23 May 1949 (Ger)) guarantees access to courts to anyone whose rights are violated by public authority (Art. 19, para. 4, first sentence). If no other jurisdiction has been established, recourse shall be to the ordinary courts (Art. 19, para. 4, second sentence). There are five branches of courts in Germany: regular courts which deal with criminal and civil matters; administrative courts; two branches of courts of special administrative jurisdiction, the financial courts and the courts of social matters; and the labour courts. The supreme courts of the federation are federal courts: the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court, and the Federal Social Court as Supreme Courts (Art. 95, para. 1). Every state has at least one administrative court, and no more than one appellate administrative court (Schröder 132).

22.  The Federal Administrative Court of Germany was founded in 1952. It can only decide upon federal law, and not upon state law (Schröder 132). The jurisdiction, organization, and procedure of the administrative courts were regulated in 1960 by the Verwaltungsgerichtsordnung (VwGO) (Code of Administrative Court Procedure of 21 January 1960 (BGBl I S 17) (Ger)). A recourse to the administrative courts is available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court (para. 40 (1) sentence 1 of the VwGO).

23.  There were no administrative courts in the German Democratic Republic (Leithoff 31). Only in the last few years of the existence of the German Democratic Republic could citizens file an action before the special chambers (Kammer für Verwaltungssachen) of the regular courts (Leithoff 31) for permission to leave the county.

(a)  Essential Characteristics of Administrative Disputes

24.  Since Article 19 paragraph 4 of the German Basic Law guarantees legal protection to anyone whose rights are violated by public authority, there must be an action available for every possible claim (Schröder 136). German administrative law recognizes three categories of action: it may be an action for the modification of rights or legal relationship (Gestaltungsklage); an action for an affirmative relief (Leistungsklage); or an action for declaration (Feststellungsklage). Actions for the modification of rights or legal relationship can be further divided into actions for annulment directed against an administrative act (Anfechtungsklage) and general actions for the modification of legal rights (allgemeine Gestaltungsklage). Action for an affirmative relief may also be divided into a special action for a mandatory injunction (Verpflichtungsklage) and a general action for affirmative relief (allgemeine Leistungsklage). In addition, there is a special judicial procedure of control of statutory instruments and by-laws (Normenkontrollverfahren) (Schröder 136–137).

25.  German administrative procedure is characterized by the requirement of initiating a preliminary proceeding (Vorverfahren). Before bringing an action for annulment or mandatory injunction, the plaintiff must exhaust any administrative remedy (Schröder 138). The Vorverfahren begins by lodging an objection (Widerspruch). The authority deciding the Widerspruch is not a court, but takes the place of the issuing authority (Crossland 732). It examines both the legality of the act (Rechtmäßigkeit) and its suitability (Zweckmäßigkeit).

26.  The requirements of locus standi in Germany are stricter than in France, due to the difference of the basic purpose of the administrative law (Crossland 730). In France, its purpose is to ensure that the administration follows the law; while in Germany its function is to protect the individual from the unlawful actions of the administration (Crossland 730–731). Thus, in France any interest in the matter is sufficient to entitle an individual to bring an action, while in Germany a right must be infringed (Crossland 731).

(b)  Acts Excluded from Administrative Disputes

27.  German law recognizes justizfreier Hoheitsakt or Regierungsakt, which are similar to the French actes de gouvernement. Historically, the term has referred to those acts that are outside of judicial control—as opposed to administrative acts, which are open to challenge before the courts. The concept of Regierungsakt applies in particular to diplomatic acts in the realm of foreign affairs (Biehler 164). This was outlined by the Upper Administrative Court Oberverwaltungsgericht für das Land Nordrhein-Westfalen (OVG Münster) which stated that applications that fall into the realm of foreign policy are inadmissible in administrative judicial procedures before this court (Anon v Germany ex parte British Military Government in Germany, at 294) (Biehler 164). The Federal Administrative Court (BVerwG, DVBl 1963, 728) has also applied the concept of justizfreier Hoheitsakt (Biehler 165). But, denying access to court with the doctrine of justizfreier Hoheitsakt is questionable from the viewpoint of the constitutional guarantee of legal protection (Saarstatut (1955) (Ger) 169) (Biehler 165).

(c)  Control over Discretionary Administrative Decisions

28.  The discretion of the administration represents a range of possible types of conduct, all equally lawful, which the administration may adopt in implementing statutes (Schwarze 272). In other words, the administration has discretion if it has the choice between several possibilities all deemed lawful by the legislature. The administration then has to weigh which of the legal consequences best fits the purpose of law (Schröder 130). The courts cannot replace the discretionary decision of the administration with their own, but they can supervise the exercise of discretion (Schröder 130). The administrative courts have the power to examine whether a public authority was or was not aware of the possibility to exercise discretion (Ermessensausfall), whether a public authority has underestimated the degree up to which it could exercise discretion (Ermessensunterschreitung), whether a public authority has violated the limits of discretion (Ermessensüberschreitung), and whether a public authority has not used its discretion properly insofar as it has not respected the purpose for which the discretion was intended (Ermessensfehlgebrauch) (Leithoff 30).

D.  Organization of Administrative Disputes in Other Civil Law Countries

1.  List of Analysed Constitutions

29.  The constitutions of the following countries have been selected for the comparative analysis:

34.  A total of 26 countries have been covered by the analysis. The aim was to include as many countries as possible whose constitutions contain provisions that encompass the concept of administrative dispute, and to illustrate varieties of models of organizing administrative litigation. As already mentioned, judicial review of administrative action in common law countries is explained in a separate article.

2.  Comparative Description

(a)  Asia

35.  The majority of analysed constitutions in Asia contain provisions concerning administrative disputes (the exception being China). The Constitution of Indonesia explicitly prescribes that judicial power shall be implemented, inter alia, through state administrative courts (Art. 24, para. 2). The Constitution of Iran contains provisions regulating the Court of Administrative Justice (Arts 170 and 173), and the Kuwaiti Constitution prescribes the possibility of establishing the Council of State by law (Art. 171). The Constitution of Kazakhstan does not mention administrative courts; however, it does state that judicial power shall be exercised through constitutional, civil, administrative, criminal, and other forms of judicial procedure as established by law (Art. 75, para. 2). Furthermore, the constitutions of Iran, Japan, and Kazakhstan guarantee the right of access to courts (Iran, Art. 34; Japan, Art. 32; and Kazakhstan, Art. 13, para. 2).

(i)  Various Types of Administrative Courts

36.  The Constitution of Kuwait stipulates that the law shall regulate the settlement of administrative disputes by means of a special chamber or court, and shall prescribe its organization and the manner of assuming administrative jurisdiction including the power of both nullification and compensation in respect of administrative acts contrary to law (Art. 169). Law shall organize the body which shall render legal advice to ministries and public departments, and shall draft bills and regulations. Law shall also regulate the representation of the state and other public bodies before the courts (Art. 170). A Council of State may be established by a law to assume the functions of administrative jurisdiction, rendering legal advice, and drafting bills and regulations, as mentioned in the preceding two Articles (Art. 171). Despite the fact that the constitution envisaged the possibility of establishing the Council of State, the Kuwaiti legislator did not opt for this; instead, the Administrative Court was created by Decree Law No 20 of 1981 (as amended by Law No 61 of 1982 (Kuwait)) (Alhajeri 203). It should be noted that the Administrative Court is only a circuit within the Court of First Instance (Alhajeri 204). Prior to the establishment of this court, Article 2 of Law No 19/59 on the Regulation of the Judiciary (Kuwait) explicitly limited the powers of courts to determining claims ‘without annulling any administrative order or halting its execution or interpreting it’ (Alhajeri 203). This lasted for more than twenty years, even though the constitution contained a legal foundation for establishing an administrative court (Alhajeri 203).

37.  Pursuant to the Indonesian Constitution, judicial power is implemented by a supreme court and judicial bodies underneath it in the form of public courts, religious affairs courts, military tribunals, and state administrative courts; and by a constitutional court (Art. 24, para. 2) (Constitutional Court of the Republic of Indonesia (Mahkamah Konstitusi Republik Indonesia)). Administrative courts became operational in Indonesia in 1991 (Bedner). The subject matter jurisdiction of administrative courts is a concrete, actual, particular, and final decision of the administrative body of the executive branch (Laiman, Reni and Ardiyanti).

38.  The Iranian Constitution states that the judges of courts shall be obliged to refrain from executing statutes and regulations of the government that are in conflict with the laws or the norms of Islam, or lie outside the competence of the executive power. Everyone has the right to demand the annulment of any such regulation from the Court of Administrative Justice (Art. 170). In order to investigate the complaints, grievances, and objections of the people with respect to government officials, organs, and statutes, a court shall be established, to be known as the Court of Administrative Justice, under the supervision of the head of the judicial branch. The jurisdiction, powers, and mode of operation of this court shall be laid down by law (Art. 173). The law under Article 173 of the constitution was adopted in 1981 (Soleimanian 1054).

39.  The judicial system of the Republic of Kazakhstan consists of the Supreme Court, local and other courts established under the constitution, and the Constitutional Law on Judicial System and Status of Judges of the Republic of Kazakhstan (25 December 2000, No 132-II ZRK (Kaz)). Since February 2002, there have been so-called specialized administrative courts, whose purpose is to consider: (1) administrative offenses, or (2) complaints of individuals and legal entities regarding resolutions adopted by administrative agencies in the process of imposing administrative sanctions (Podoprigora). There are still no administrative courts that would deal with disputes between state bodies and citizens or their associations (Podoprigora).

(ii)  Courts of General Jurisdiction

40.  The administrative disputes in China and Japan are conducted by courts of general jurisdiction (Asimow 22–24). In China, the Administrative Litigation Law, promulgated by Order No 16 of the President of the Republic of China on 4 April 1989, provides private parties with a judicial remedy for virtually all administrative action that adversely affects them (Asimow 22).

41.  According to the previous Constitution of the Empire of Japan (the Meiji Constitution, effective 1890–1947 (Japan)), no suit related to illegal measures of administrative authorities could be adjudicated by a court of law (Art. 56 Meiji Constitution). All claims against the administrative authorities were within the competency of the court of administrative litigation specially established by law (Art. 56 Meiji Constitution). The modern Japanese constitution from 1946 prohibits special courts of this kind (Satoh 608). It granted to Japanese courts the power to determine the constitutionality of legislative and administrative acts (Art. 81), similar to the American practice of judicial review (Hattori 70).

(b)  Africa

42.  All analysed constitutions contain provisions concerning administrative disputes. Several constitutions expressly prescribe judicial control over measures of public authorities (Algeria, Art. 143), over administrative acts (Angola, Art. 177, para. 1; Mozambique, Art. 253, para. 3), and over every legal act of a regulatory or individual character which is taken in administrative matters (Morocco, Art. 118, para. 2). Furthermore, the Constitution of Egypt explicitly stipulates that it is forbidden to grant any act or administrative decision immunity from judicial oversight (Art. 97). The common characteristic of analysed constitutions is that administrative disputes are regulated by constitutional provisions relating to the organization of the courts. In this regard, the constitutions can be divided into two groups.

(i)  Council of State

43.  The first group are constitutions which, inspired by the French Conseil d’État, directly prescribe the establishment of the Council of State (Algeria, Art. 152, para. 2; Democratic Republic of Congo, Art. 154; Egypt, Art. 190). These constitutions contain provisions that prescribe the jurisdiction of the Council of State in more or less detail.

44.  In Algeria, since the constitutional reform of 1996, two specific judicial structures are ruled by two distinct bodies—the High Court for the activities of courts and tribunals, and a Council of State for administrative jurisdictions (Ramette). The Algerian Constitution prescribes that the Council of State is established as a regulatory body of the activity of the administrative courts (Art. 152, para. 2). Its organization, functioning, and other functions shall be determined by an Institutional Act (Art. 153 ).

45.  The Constitution of the Democratic Republic of Congo contains provisions on the structure of the administrative jurisdiction (Arts 154 and 155). This system is composed of the Council of State and of the Administrative Courts and Tribunals (Art. 154). Without prejudice to the other competences which are assigned to it by the constitution or the law, the Council of State is competent, in first and last resort, for recourses for violation of the law, brought against the acts, regulations, and decisions of the central administrative authorities (Art. 155, para. 1). It is competent for appeals against the decisions of the Administrative Courts of Appeal (Art. 155, para. 2). In the cases where no other competent jurisdictions exist, the Council of State is competent for the claims for indemnity concerning the reparation of an exceptional damage, material or moral, resulting from a measure taken or ordered by the authorities of the Republic. It decides, in equity, taking into account all circumstances of public or private interest (Art. 155, para. 3). The organization, the competence, and the functioning of the jurisdictions of the administrative order shall be established by an organic law (Art. 155, para. 4). Until the installation of the new system of administrative jurisdiction, the Court of Appeals shall exercise the competences of the Administrative Court of Appeals (Art. 224). Although the 2006 Constitution of the Democratic Republic of Congo introduced a new administrative law regime, the system of administrative courts has not yet been set up. The administrative sections of the Court of Appeals and the Supreme Court continue to adjudicate administrative disputes, and will be replaced by the Administrative Court of Appeals and the Council of State, respectively (Zongwe, Butedi and Clément).

46.  The Egyptian Constitution prescribes that the Council of State is an independent judicial body that is exclusively competent to adjudicate in administrative disputes, disciplinary cases and appeals, and disputes pertaining to its decisions. It is also solely competent to issue opinions on the legal issues of bodies to be determined by law, review, and draft bills and resolutions of a legislative character, and to review draft contracts to which the state or any public entity is a party (Art. 174, para. 1). Other competencies are to be determined by law (Art. 174, para. 2). The term Council of State (State Council) in Egypt is used to refer to the entire administrative court system. The structure of the administrative court system includes four types of courts: Supreme Administrative Court, Courts of Administrative Justice, Administrative courts, and Disciplinary courts.

(ii)  Administrative Courts

47.  The second group of constitutions prescribe the establishment of the Administrative Court (Mozambique, Art. 223, para. 1), the establishment of the administrative courts (Morocco, Art. 118, para. 2), or the possibility of their establishment (Angola, Art. 176, para. 3; Mozambique, Art. 223, para. 2). Furthermore, the Constitution of Cameroon stipulates that the Supreme Court is the highest court of the state in legal and administrative matters, as well as in the appraisal of accounts (Art. 38, para. 1). It is comprised of three benches: a judicial, an administrative, and an audit bench (Art. 38, para 2). The administrative bench decides on all administrative disputes involving the state and other public authorities; more specifically, it reviews appeals on regional and council election disputes, gives final rulings on appeals against final judgments passed by lower courts in cases of administrative disputes, and examines any other disputes expressly devolving upon it by law (Art. 40).

48.  Out of all these countries, only Angola did not establish administrative courts, although such possibility exists under the constitution. In Angola there are 19 courts (one per province, except for Benguela, which has two), each with different divisions called ‘salas’ for civil and administrative, family, labour, maritime, children and minors, and criminal matters (Rainha). The Supreme Court decides on appeals against the decisions of the provincial courts (Rainha).

49.  In Cameroon, the administrative courts have regional competence, and appeals against their decisions are decided by the Administrative Bench of the Supreme Court (Fombad).

50.  In Morocco, the administrative courts are competent to decide on claims for annulation of acts filed against administrative authorities, disputes related to administrative contracts, claims for compensation for damages caused by public entities’ acts or activities, and to set up the consistency of administrative acts with legal provisions (Butera and Pillay). The administrative courts of appeal were established under Act No 80-03 in 2007. They are competent to decide on appeals against judgments of the administrative courts and the orders of their presidents (Butera and Pillay).

51.  The Administrative Court in Mozambique was established in 1992 as the highest body in the hierarchy of administrative, customs, and fiscal courts (Rainha and Jona). The definition, composition, and powers of the Administrative Court are regulated by the provisions of the constitution (Arts 228–230). The Administrative Court controls the legality of administrative acts and the application of rules and regulations issued by the public administration, and it scrutinizes the legality of public expenditure and the enforcement of liability for financial infractions (Art. 228, para. 2).

(c)  Latin America

52.  The main characteristic of analysed Latin American countries is the existence of very different models for settlement of administrative disputes. The system of administrative jurisdiction in Colombia and Mexico is directly inspired by the French model. In addition, the constitutions of Guatemala and Haiti expressly regulate the Court of Administrative Disputes (Guat) and the Superior Court of Auditors and Administrative Disputes (Haiti). The Constitution of Panama also contains provisions concerning administrative disputes, but these fall within the competence of the Supreme Court of Justice. Furthermore, there are countries whose constitutions do not contain specific provisions on administrative disputes (Argentina and Brazil).

(i)  Council of State and Tribunals of Administrative Justice

53.  French administrative courts and jurisdiction have greatly influenced the Colombian concept of the functioning of the judiciary (Gibson 291–311). The Colombian Constitution includes a special chapter regulating administrative disputes and establishing the Council of State (Title VIII, Chapter 3, Arts 236–238). The Council of State is the highest court for disputes arising from administrative conduct or omissions. It has the power to annul government decrees and administrative regulations, and to order the State to pay damages to aggrieved contractual parties. The Council of State also reviews the appeals against the decisions of administrative tribunals (Otero and Ramírez). The competences of the Council of State are prescribed in Article 237 of the Colombian Constitution.

54.  Mexico also followed the French model for adjudication of disputes between the state and citizens (López-Ayllón, García and Fierro 6). Article 73 XXIX-H of the Constitution of the United Mexican States provides for the review of federal administrative action. The Congress has the power to enact the law that institutes the Federal Tribunal of Administrative Justice, endowed with full autonomy to issue its judgments, and that establishes its organization, its functioning, and the recourses to impugn its resolutions. The tribunal shall have as its responsibility to settle the disputes that arise between the federal public administration and individuals. In the same way, it shall be the organ competent to impose sanctions on the public servants for the administrative responsibilities that the law determines as grave, and on individuals who participate in acts linked to those responsibilities; as well as establishing for those responsible the payment of the indemnifications and pecuniary sanctions that derive from the damages and prejudices that affect the Federal Public Treasury or the patrimony of the federal public entities (Art. 73 XXIX-H). At a state level, Article 116 of the constitution states that the constitutions and laws of the states must institute Tribunals of Administrative Justice, endowed with full autonomy to issue their judgments and establish their organization, functioning, procedures and, as the case may be, recourses against their resolutions (Art. 116 V). Prior to the 2015 constitutional reform, local congresses could decide whether to create an administrative court or not (López-Ayllón; García and Fierro 18). Of Mexico’s 31 states and the Federal District, 29 jurisdictions established administrative courts that review decisions of public authorities (López-Ayllón; García and Fierro 6).

(ii)  Court of Administrative Disputes

55.  The Constitution of Guatemala contains special provisions regulating the Court of Administrative Disputes (Art. 221). Its function is to control the legality of the public administration and it has competence in cases of litigation through actions or resolutions of the administration and of the decentralized (decentralization) and autonomous entities of the State, as well as in the cases of litigation deriving from administrative contracts and concessions (Art. 221, para. 1). To resort to this tribunal, no prior payment or deposit whatsoever is necessary. However, the law may establish specific situations where the petitioner must pay interest at the going rate concerning the taxes that he has challenged or contested, the payment of which to the tax authorities was delayed because of the recourse (Art. 221, para. 2). Against the resolutions and decrees which end the process, the recourse of cassation may be interposed (Art. 221, para. 3).

56.  Similarly, the Haitian Constitution contains a special chapter that regulates the Superior Court of Auditors and Administrative Disputes (Arts 200–205). The Superior Court of Auditors and Administrative Disputes is an independent and autonomous financial and administrative court responsible for administrative and jurisdictional control of government receipts and expenditures, and for verification of the accounts of state enterprises as well as those of local authorities (Art. 200). It also hears disputes involving the state and local authorities, the administration and civil servants, public services, and citizens (Art. 200–1). Its decisions are not subject to appeal, except to the Supreme Court (Art. 200–2). The Superior Court of Auditors and Administrative Disputes also participates in drawing up the state budget and is consulted on all matters relating to legislation on public finance and on all draft financial or commercial contracts, agreements, and conventions to which the state is a party (Art. 200–4). It is composed of two sections, the Financial Control Section and the Administrative Disputes Section (Art. 200–3).

(iii)  Supreme Court of Justice

57.  Pursuant to the Constitution of Panama, the judiciary is composed of the Supreme Court of Justice, tribunals, and such other lower courts as the law may establish (Art. 202). Among the constitutional and legal functions of the Supreme Court of Justice shall be to exercise contentious-administrative jurisdiction (administrative litigation) over acts, omissions, faulty or deficient public services, resolutions, and orders or provisions which are executed, adopted, issued, or committed in the performance or duties, or on the pretext of performing them, by national, provincial, and municipal government employees, as well as those of autonomous and semi-autonomous public entities. In such cases, the Supreme Court of Justice, after hearing the opinion of the Solicitor General of the Administration, shall have the power to annul unlawful acts, re-establish private rights violated, enact new provisions in lieu of those opposed, and render a judgment with regard to the meaning, applicability, or legal validity of an administrative act. Persons affected by the act, resolution, order, or decision in question may resort to contentious-administrative jurisdiction; and any natural or juridical person domiciled in the country may exercise popular action. The decisions issued by the Supreme Court in exercise of the powers conferred on it by this article are final, definitive, and binding, and must be published in the Official Gazette (Art. 206, point 2).

(iv)  Courts of General Jurisdiction

58.  The constitutions of Argentina and Brazil do not contain specific provisions concerning administrative disputes. However, the Brazilian Constitution prescribes that the litigants in judicial or administrative proceedings, and defendants in general, are assured an adversary system and a full defence, with the measures and recourses inherent therein (Art. 5 LV). In Argentina, administrative disputes are in the competence of federal or provincial courts of general jurisdiction (Asimow 23). Argentina does have specialized tribunals in tax and public service cases (Asimow 23). Brazil’s administrative jurisdiction is marked by the common law characteristic of courts that deal with questions of both public and private law (Perlingeiro 37). There are certain degrees of specialization in public law, as exemplified by the ‘turmas’ or ‘câmaras’ in courts of appeal (Perlingeiro 37). The federal courts of first and second tiers operate under a common court of last resort, which also deals with questions of private law—the Superior Court of Justice (Perlingeiro 37).

(d)  Europe

59.  The analysis of eight European countries (including the Russian Federation and Turkey) identified four different models of adjudicating administrative disputes: (1) administrative courts that are subject to the Council of State (France, Italy, and Turkey); (2) administrative courts that are subject to the administrative court of last resort (Germany and Austria); (3) administrative courts that are subject to the Supreme Court (Spain); and (4) courts of general jurisdiction (Norway and Russia). In addition, many countries established courts of special administrative jurisdiction (for instance in tax matters).

(i)  Administrative Courts Subject to the Council of State

60.  Italy and Turkey followed the French model of organizing administrative disputes. The Italian Constitution provides for the judicial protection of rights and legitimate interests against acts of the public administration. Such judicial protection shall be granted before the organs of ordinary or administrative justice (Art. 113, para. 1) and may not be excluded or limited in particular kinds of appeal or for particular categories of acts (Art. 113, para. 2). Jurisdiction over administrative disputes in Italy is exercised by regional administrative courts (Tribunali Amministrativi Regionali or TAR) and by the Council of State (Consiglio di Stato). The Council of State is a juridical-administrative consultative organ and ensures the legality of public administration (Art. 100, para. 1). The Council of State and the other bodies of judicial administration have jurisdiction over the protection of legitimate rights before the public administration and, in particular matters specified by law, also of subjective rights (Art. 103).

61.  In comparison to all other analysed European constitutions, the Turkish Constitution contains the most detailed provision concerning administrative disputes. It stipulates that the recourse to judicial review shall be available against all actions and acts of administration. National or international arbitration may be suggested to settle the disputes which arise from conditions and contracts under which concessions are granted concerning public services. Only those disputes involving foreign elements can be solved by international arbitration (Art. 125, para. 1). The acts of the President of the Republic on his or her own competence, and the decisions of the Supreme Military Council are outside the scope of judicial review. However, judicial remedies shall be available against the decisions of the Supreme Military Council regarding discharges of any kind, except for decisions regarding promotion procedures and retirement due to shortage of cadres (Art. 125, para. 2). In suits filed against administrative acts, the statute of limitations shall be effective from the date of written notification (Art. 125, para. 3). Judicial review shall be limited to the control of the lawfulness of administrative actions and procedures and shall under no circumstances extend to the expediency of the measures under review. No judicial ruling shall be passed which restricts the exercise of the executive function in accordance with the forms and principles prescribed by law, which has the quality of an administrative action and act, or which removes discretionary powers (Art. 125, para. 4).

62.  The system of adjudicating administrative disputes in Turkey includes the administrative courts at the provincial level and the regional (appellate) administrative courts. For disputes concerning taxes, there are specialized tax courts. The highest administrative court is the Council of State. The Council of State is the last instance for reviewing decisions and judgments given by administrative courts and which are not referred by law to other administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law (Art. 155, para. 1 of the Constitution). The Council of State shall try administrative cases, give its opinion within two months of time on draft legislation and the conditions and contracts under which concessions are granted concerning public services— which are submitted by the Prime Minister and the Council of Ministers—, examine draft regulations, settle administrative disputes, and discharge other duties as prescribed by law (Art. 155, para. 2).

(ii)  Administrative Courts Subject to the Administrative Court of Last Resort

63.  The rule of law has a central role among fundamental principles of Austrian Constitutional Law. The entire public administration shall be based on law (Art. 18, para. 2). Chapter VII titled ‘Constitutional and Administrative Guarantees’ contains a special part which regulates the administrative jurisdiction (Verwaltungsgerichtsbarkeit). A major constitutional reform in 2012 (Verwaltungsgerichtsbarkeits-Novelle 2012 BGBl I 51/2012) included a total rewrite of this part of the Federal Constitutional Law. The reform eliminated a system of independent administrative tribunals, and created a Land Administrative Court for each Land (Art. 129). Appeals from the decisions of these courts can be lodged to the High Administrative Court (Art. 133, para. 1), a court of last resort that, until constitutional reform, was the only administrative court in Austria. An appeal lodged against the decision of an administrative court is permissible if the appeal depends on the resolution of a legal issue of fundamental significance, particularly on the grounds that the decision deviates from the adjudication of the High Administrative Court, that such adjudication is lacking, or that the issue to be resolved has not been uniformly settled in prior adjudication of the High Administrative Court. Federal law can provide for the inadmissibility of the appeal if the decision involves only a small monetary penalty (Art. 133, para. 4). At the federal level, there is an administrative court of the Federation designated as Federal Administrative Court and a Federal Administrative Court for finance cases designated as Federal Finance Court (Art. 129).

(iii)  Administrative Courts Subject to the Supreme Court

64.  The Spanish Constitution does not include explicit provisions on administrative disputes. However, it does guarantee the right to effective legal protection from judges and courts (Art. 24, para. 1). Furthermore, it prescribes the provisions concerning the structure and organization of judicial power (Part VI of the Constitution). The courts shall check the power to issue regulations, and ensure that the rule of law prevails in administrative action and that the latter is subordinated to the ends which justify it (Art. 106, para. 1).The Supreme Court, with jurisdiction over the whole of Spain, is the highest judicial body in all branches of justice, except with regard to provisions concerning constitutional guarantees (Art. 123, para. 1). Judicial control of administrative acts in Spain is carried out by autonomous administrative courts in the first and second tiers. The first instance is held before the Administrative Courts, and the second instance before the administrative section of the High Courts of Justice (Cabrero and Casado).

(iv)  Courts of General Jurisdiction

65.  The Norwegian Constitution does not contain special provisions concerning administrative disputes. In Norway there are no administrative courts. The ordinary courts review administrative decisions. This type of case always starts before the court of first instance—the district courts (Bertnes and Five Bergstrøm). The Supreme Court has general jurisdiction and decides, inter alia, on issues of administrative law in the final instance (Art. 88 of the Constitution of the Kingdom of Norway).

66.  The Constitution of the Russian Federation stipulates that decisions and actions (or inaction) of organs of state power, local self-government bodies, public organizations, and officials may be appealed against in court (Art. 46, para. 2). However, the judicial system does not include administrative courts. Administrative disputes are mostly within the competence of courts of general jurisdiction, with the exception of disputes between legal entities and individual entrepreneurs and the state (for example in matters of taxation) which are resolved before commercial courts called arbitration courts. According to the Constitution of the Russian Federation, judicial power is exercised by means of constitutional, civil, administrative, and criminal proceedings (Art. 118, para. 2). The judicial system in the Russian Federation shall be established by the Constitution of the Russian Federation and federal constitutional law (Art. 118, para 3). The Supreme Court of the Russian Federation shall be the highest judicial body for civil, criminal, administrative, and other cases under the jurisdiction of the ordinary courts (Art. 126). The draft of the Federal Constitutional Law ‘On the Federal Administrative Courts in the Russian Federation’ from 2000, which was submitted to the State Duma of the Federal Assembly of the Russian Federation, has not been adopted. It was also severely criticized in the legal literature (Jaroshenko).

E.  Conclusion

67.  The comparative analysis of 28 countries, which included civil law and several sharia law countries, showed that constitutions very rarely provide detailed provisions on administrative disputes. Administrative disputes are principally regulated by constitutional provisions relating to the organization of the judiciary. Only a small number of constitutions do not contain special provisions on this topic. All analysed countries allow the courts to review acts of public authorities. The constitutions, in vast majority, do not provide specific rules concerning the forms of suits, time limits, standing, grounds of judicial control, intensity of judicial control etc., but leave these issues to be addressed and regulated by law and the case law of the highest courts which adjudicate administrative disputes. Exceptions exist only in respect of those issues that were singled out by the constitution makers as important, depending on the particularities of each individual country. What is common to all countries is that, through the institution of administrative dispute, the aim is to ensure the settlement of disputes between individuals and different public authorities, by means of judicial control over acts or measures of the latter. How this system is organized depends on the specific needs of each country.

68.  The analysis showed that the system of administrative courts (rather than courts of general jurisdiction) is more widely used for challenging actions of public authorities and settling administrative disputes. However, this legal institute is interpreted differently in different countries, as a result of specific circumstances of economic, political, and social developments. It can also be subject to changes and reforms, as demonstrated by the examples of recent constitutional amendments dealing with administrative jurisdiction in Congo, Mexico, and Austria.

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