Alternative Dispute Resolution in European Administrative Law

624 Pages·2014·5.26 MB·English

by  Dacian C. Dragos

Dacian C. Dragos
Bogdana Neamtu Editors
Alternative Dispute
Resolution in
European
Administrative Law
Alternative Dispute Resolution in European
Administrative Law
ThiSisaFMBlankPage
Dacian C. Dragos (cid:129) Bogdana Neamtu
Editors
Alternative Dispute
Resolution in European
Administrative Law
Editor
DacianC.Dragos
BogdanaNeamtu
CenterforGoodGovernanceStudies
BabesBolyaiUniversity
ClujNapoca,Romania
ISBN978-3-642-34945-4 ISBN978-3-642-34946-1(eBook)
DOI10.1007/978-3-642-34946-1
SpringerHeidelbergNewYorkDordrechtLondon
LibraryofCongressControlNumber:2014947100
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From the Editors: The Story of a Comparative
Interdisciplinary Research Project
Alternative Dispute Resolution in Administrative Law
Alternativedisputeresolution(ADR)isatopicthatmostthinktheyknowabout,but
in reality, it has multiple facets that cannot be gauged so easily. The concept of
ADRappliedtopubliclawincreasesthecomplexityofthedebate.
Thebookattemptsforthefirsttimetodoacomparativeassessmentofthestate
oftheartoftheADRinadministrativelawofseveralEuropeanjurisdictionsandat
the level of European Union law. It then tries to analyze both empirically and
comparatively, also for the first time, the effectiveness of selected ADR tools
employedby thedifferent administrativejusticesystems—namely, administrative
appeals,ombudsman,andmediation.
AdministrativeappealshavealwaysbeenconsideredanaffordabletoolforADR
in administrative matters, and a way of keeping litigations out of the courts.
Nevertheless, the two systems of administrative appeals have fuelled debates
concerning their efficiency, effectiveness, access to justice, promotion of good
governanceprinciplesandaccountability,inrelationtomediationprocedures.
TheCouncilofEurope’sCommitteeofMinistershasstressedrepeatedly,inits
recommendations,theideathatalternativemeansofsolvingadministrativedisputes
arecommendablebecauseoftheirroleinreducingthecaseloadofthecourtswhile
still securing a fair access to justice. It was also pointed out that the courts’
procedures in practice may not always be the most appropriate to resolve admin-
istrative disputes, and that the widespread use of alternative means of resolving
administrative disputes can allow these problems to be dealt with and can bring
administrativeauthoritiesclosertothepublic.
However, in the comparative literature, it seems that there is no empirical
research measuring the effectiveness of administrative appeals and other ADR
tools. The few writings that tangentially touch upon the issue of administrative
appealsare mostlydescriptive,someevenoutofdate,andthey donotaddress its
influence onthe judicial review andits effectivenessas anADR tool.The lackof
empirical data favors on the other hand public policies directed towards reducing
v
vi FromtheEditors:TheStoryofaComparativeInterdisciplinaryResearchProject
theroleofadministrativeappealsintheadministrativejusticesystem,basedonthe
argument that they are “useless,” and that only courts can effectively protect
citizensfromadministration’sabuse.
MediationisanADRtoolthatisconsideredtobespecificforotherfieldsoflaw,
andnottoadministrativelaw.Thatisareasonenoughforthelackofliteratureon
this issue. Going beyond the merely descriptive approaches employed until now,
thisresearchtacklestheempiricalsideofthematter,lookingforsignsofeffective-
nessofmediationinadministrativeproceedings,wherethecase.
Current researches at both the national and international level are mostly
descriptive and focus on the responsibilities of the Ombudsman. The proposed
researchwilladdressforthefirsttimethetopicfromaninterdisciplinaryperspec-
tive and in the context of other alternative means for conflict resolution. The
proposed research includes a comparative dimension and aims at developing a
normative model regarding the way in which the Ombudsman institution contrib-
utestothedevelopmentoftheruleoflawandpracticesofgoodgovernance.
The Background of the Research Project
Theteamofauthorscontributingtothisbookisbasedinmostpartonthenetworkof
researchersestablishedundertheumbrellaofthePermanentStudyGroupX“Law
andPublicAdministration”oftheEuropeanGroupofPublicAdministration.1The
study group joins together at every annual EGPA conference in September to
discussandshareresearchideasrelatedtothefieldofpubliclawbutwithabroader
multidisciplinary perspective. Thus, the group is a permanent meeting place for
scholars and practitioners from different fields: social scientists, jurists and econ-
omists working in academia and public institutions, as well as civil servants
working in national and supranational institutions. It tries to combine external
and internal perspectives on law in a public administration context. Internal per-
spectives on law relate to juridical analysis and efforts to improve legal (sub)
systems from the perspectives of rules and legal history, jurisprudence and com-
ments. The external perspectives can be of different kinds, as they confront
(administrative) law with motives that are often external to law, like efficiency
and timeliness of administration, the accountability of public agencies, transpar-
encyofgovernmentandcitizen’sparticipationindecision-making.
ThethemeADRinadministrativeproceedingswasfirstdiscussedattheEGPA
conference in Toulouse (September 2010) and gathered an initial enthusiastic
support and commitment from the members of the group. Many papers on the
topic were presented during the annual EGPA conferences since then—in Bucha-
rest (2011), Bergen (2012) and Edinburgh (2013). The book was completed with
the participation of other well-established scholars in the field of administrative
1http://www.iias-iisa.org/egpa/e/study_groups/law/Pages/contact.aspx.
FromtheEditors:TheStoryofaComparativeInterdisciplinaryResearchProject vii
law, most of them members of the RENEUAL network (Research Network of
EuropeanAdministrativeLaw).2
DraftchaptershavebeendiscussedduringtheInternationalWorkshoporganized
inClujNapocaon11thand12thofOctober20123andfurthercoordinationwasset
upamongauthorscomingfromdifferentjurisdictions.4
Scope of the Research
The research underpinning this book aims at examining the role, the general
framework and the empirical effectiveness of the main alternative dispute resolu-
tion tools (administrative appeals, mediation, and ombudsman) in administrative
matters, within the broader context of the administrative justice system. The
research combines approaches from law, public administration, public policy and
politicalscience.
Themaintoolfordisputeresolutioninadministrativelawistheadministrative
appeal. Before going to court for annulment/modification of an administrative
decision,thecitizenasinterestedpartyhasthepossibility(ortheduty)tochallenge
thedecisionbeforetheadministrationitself.The(internal)administrativeappealis
addressed to the issuing public authority or to the higher public authority and in
mostcasesisacompulsoryrequirementbeforeasuitcanbefiled.
Theresearchwasapproachedusingacombinationofmethods—firsthandlegal
research—the inventory of legal rules and descriptions of their functionality in
national literature, research of reports on this matter, and of evaluation studies;
secondary data analysis of statistics emanating from public sector authorities on
administrative proceedings. This helped us map what data are available and what
kindofresearchisnecessarytodevelopnexttoacomparativejuridical,acompar-
ative empirical perspective on administrative proceedings. The research instru-
ments also included interviews with administrative law judges/public officials
with experience in conducting administrative appeal procedures, advocates and
ordinarycitizens.
Forthepurposeofthisstudy,effectivenessofadministrativeappealsandofother
forms of ADR was measured in terms of limiting the number of administrative
disputesthatreachthecourts.Inthiscontext,anadministrativeappealnotfollowed
by a court action was considered as a successful one, even if this includes the
instance when the applicant who was not granted a positive solution dropped the
courtactionanyway.Weareawareofthelimitationsofsuchasimpledefinitionof
effectiveness. Due to the constraints of the research project and of the natural
2http://www.reneual.eu/.
3Financed by the Romanian Agency for Research, Grant Exploratory workshop, contract no.
WE-2012-4-089.
4Seehttp://www.apubb.ro/goodgovernancestudies/events/.
viii FromtheEditors:TheStoryofaComparativeInterdisciplinaryResearchProject
resistance of legal scholars to employ empirical tools, it is the best we could do.
However, we tried to mitigate the shortcomings of the research methodology by
advising authors to conduct interviews and to discuss case studies in order to
supplementthefindingsortoexplainthembetter.
From a normative perspective, the book assesses the nature and the role of
selected ADR tools as institutions of administrative law and in relation to the
judicial review. In addition, the normative part of the project focuses on the
enforcement of citizens’ right to good administration by administrative appeals,
mediationandOmbudsmen.
On the empirical side, the research looks at the effectiveness of administrative
appeals in avoiding court proceedings while providing protection of rights and
interests of aggrieved parties. The two fundamental models of administrative
appeals—mandatory and optional—are being assessed in this respect, as well as
their effectiveness in specific fields which are more susceptible to administrative
litigation, especially with a focus on two party litigation and litigation involving
thirdpartyinterests.Thus,thecontributionsfocusonadministrativeappealsagainst
building permits, refusals to provide public information, fiscal decisions, social
security decisions, public procurement or other selected matters that appear to be
relevant in one system or another. Both normative and empirical aspects of the
research dwell side by side, in order to develop the interdisciplinary nature of the
study. The basic line of questions and answers for this study was the issue how,
withouteffectivelydenyingcitizens’rightstoappeal,andeffectivebalancecanbe
foundbetweentheinterestsofthecitizensandtheinterestsoftheadministrationin
designingproceduresofadministrativelitigation.
The research questions targeted the three selected ADR tools—administrative
appeal,Ombudsmanandmediation.
As to the administrative appeals, the questionnaire addressed by the authors of
nationalchapterstried tofindthe answer tothefollowing questions:Whichis the
historical background of these legal institutions in the national law? Are they a
borrowedmodelorcantheybeconsideredtheresultofanevolutionaryprocess?Do
the origins of the legal institution affect its performances? How can the model of
administrativeappealsbecharacterized:mainlymandatoryormainlyoptional?Ifit
ismainlymandatory,arethereanyexceptionsfromthemandatorycharacter?Ifitis
mainly optional, are there any instances where by law it is mandatory? Instances
when public institutions and respectively private persons exercise the administra-
tiveappeal:Doestheadministrativeappealhavedejureasuspensiveeffect?Isita
decisionofthepublicauthority,orofthecourt?Isthisissueregulatedinaspecific
mannerinyourjurisdiction?Dotheadministrativeappealshaveadevolutiveeffect?
Is the principle of non reformation in pejus applicable in your administrative
procedure? Discuss the possibility public authorities have to grant compensations
asaresultofadministrativeappeal.Arepublicentitiesreluctanttodothis,sothat
theonlyoptionremainsacourtprocedure?Whicharethedeadlinesforexercising
and answering to administrative appeals? Is their length appropriate for insuring
effectiveness?Discussifthereareanyincompatibilitiesbetweenshortdeadlinesfor
mandatoryadministrativeappeals(ifthecase)andtherighttoaccessthecourts,in
FromtheEditors:TheStoryofaComparativeInterdisciplinaryResearchProject ix
lightoftheArt.6par.1oftheECHR;Whatistherelationbetweenjudicialreview
(court proceedings) and the administrative appeal? Is the administrative appeal a
prerequisite for judicial action? If not, does it have any influence on court pro-
ceedings(prorogationofdeadlines,etc.)?Arethereanyexceptionstotheserules?
Whichaspectshavetobeverifiedbythejudgewhenreceivinganaction?Isthelack
of administrative appeal a cause for inadmissibility? Which is the significance of
theanswertoanadministrativeappealreceivedaftercourtproceedingshavebeen
initiated? Can it be considered as an administrative decision, or should it be
regardedasanattempttoamiablyresolvethejudicialprocess?Isthatadimension
oftheactivismofthecourtstowardsafinaldisputesettlement?Whatothertoolsfor
finaldisputesettlementbycourtscanbeidentifiedinthenationaljurisdiction?Can
the claimant change the scope of the review when reaching the court or should it
followthescopeoftheadministrativeappeal?Thedeadlinesformandatoryadmin-
istrativeappealsandtheirrelationwiththedeadlinesforjudicialreviewraisealso
question about access to justice, so the relevance of Art.6 of the ECHR has been
analyzed; finally, what powers are given to courts to go beyond striking down
decisionsandinfluence/bindthenewdecisionorevenreplacethem?Aretheybeing
exercised,orthecourtsareratherrefrainingfromusingthesetoolsforfinaldispute
settlement?
Relating to the Ombudsman: What background for the institution in national
law?Isitaborrowedmodelorcanitbeconsideredtheresultofanevolution?Do
the origins ofthe institutionaffectitsperformances? Canombudsmaninstitutions
beunderstoodasauxiliarytothechecksandbalancesoftheruleoflaw/rechtsstaat?
Inwhatways?Howeffectivearethese(separate)auxiliaryombudsmanfunctions?
(relationombudsman—parliament,relationombudsman—courts;relationbetween
differentombudsmanatthelocal,national,EUandinternationallevels).Howcan
this (positive or negative) effectiveness be explained? How do ombudsman insti-
tutions relate to the role of citizens in the public domain of politics and adjudica-
tion? Do ombudsman institutions add to citizens’ trust in government? Are there
caseswhereitenjoysmorelegitimacythanotherpoliticalandlegalinstitutions?If
so,why?TowhatextenthastheofficeoftheOmbudsmancontributedtocreatinga
culture of good governance and respect of the rule of law where it has otherwise
beenlacking?DoOmbudsmaninstitutionsdevelopethicalnormsforgovernment-
citizensrelations?How?WhatisthenatureofthenormsofOmbudsprudenceand
howaretheyperceived?WhatistheactualrelationshipbetweenOMBnormsand
legal norms? In how far doesthe ombudsman operate legal norms and inhow far
doesthenombudsmanoperateprinciplesofproperadministration?Towhatextent
doOMBnormsentail,overlaporformthebasisoffundamentalrightsprotectionin
administrations? To what extent are Ombudsmen seen to use jurisprudence refer-
ring to principles of proper administration as a source of inspiration for the
development of a concept of good administration for dealing with complaints, or
is it the other way around? Is there a measure of “cross-fertilization” between
ombudsman and Courts? Are Ombudsman norms more effective in achieving the
goalsofcitizenprotectioncomparedtolegalnorms?