European law is impacting some of the fundamental aspects of public and administrative domestic law of the EU Member States. And there is much interest to analyse whether a global administrative law is coming into being in Europe under the influence of European Law principles.
This is a new important topic for research in Europe. The Department of Administrative Law and Public Administration of the University of Groningen and the Institute of Constitutional and Administrative Law and the Europa Institut of Utrecht University, held a one-day conference in Utrecht about this topic in the Netherlands in October 2007 (De LANGE (Roel), JANS (Jan), PRECHAL (Sacha) et WIDDERSHOVEN (Rob), “Europeanisation of Public Law”, Groningen, Europa Law Publishing, 2007,418 pages). Several other books had been published recently about the same issue : for example "The transformation of administrative law in Europe", published jointly by the Universities of Utrecht, Osnabrück and Oxford, 2007 ; "European Administrative Law", collective work, written by 43 authors, published by the Belgium Editor Bruylant, studies coordinated by the French professors Jean-Bernard Auby and Jacqueline Dutheil de la Rochere.
It is also interesting to add that a new periodic publication called "Review of European administrative law", with a logo easy to remember "REALaw", whose aim is to publish studies on the relationship between European law and national administrative law, was created the same year 2007.
European law does not make any distinction between public law and private law. Nevertheless it tends to structure the evolution of all branches of law, and there is no exception for Public law, although it is perhaps more than other branches of law related strongly to the principle of national sovereignty of each state. Mariolina Eliantonio wrote about that : “Some 40 years after Van Gend en Loos, the impact of European law on the administrative laws of the Member States of the European Union has manifested itself intensely and in many different aspects, because of the influence of both the European Court of Justice and EC legislation. This impact is particularly striking in relation to administrative law, because, as a part of public law, administrative law had long been deemed an area of monopoly of the State and a clear outgrowth of the State sovereign powers that precluded interference from any other jurisdiction. But today European law influences virtually all areas of substantive administrative law, administrative organisation, decision-making proceedings and judicial protection…” (Mariolina Eliantonio, « Europeanisation of Administrative Justice”, Europa Law Publishing, 2009 - 416 pages).
We will study this topic during the first day of our meeting in Palermo in two parts through the most important principles listed below. For each of them you have to make a summary of the issues that have arisen in your national administrative law (problematics, reforms, new case law, unresolved issues...). During our discussions through your answers we will be able to identify commonalities and the main differences that still exist in Europe in the evolution of administrative law.
I The impact of Article 6 of the European Convention of Human
Rights (ECHR) about the "right to a fair trial"
on litigation proceedings applicable to the administrative courts
The text of article 6 of the ECHR : “1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice…”
1. An independent and impartial tribunal established by law : the concepts of jurisdiction and administrative court :
2. The right of access to a court and to effective judicial protection, the right to an effective judicial remedy :
3. The right to an adversarial proceedings and the principle of “equality of arms” between the parties :
4. The right to a reasoned decision :
5. A judicial decision made within a reasonable time :
The impact of the European principles on the Italian justice system has not affected its structure which remains substantially unchanged, nor the fundamental nature of the protection provided, but has involved only particular aspects regarding the detailed implementation of these principles. Indeed, the Italian constitutional provisions on legal protection from administrative action already expressed principles and values resembling those contained in the European Convention of Human Rights (ECHR) and in the Nice Charter.
For example, regarding item 2 (The right of access to a court and to effective judicial protection, the right to an effective judicial remedy), in Italy the legal protection of rights and legitimate interests must be full and effective (Art. 24 of the Constitution) ; it may not be excluded or limited to particular remedies or avoided by special acts in according to Art. 113 of the Constitution.
In the same way, judicial independence has been always guaranteed by Art. 101 (2) and Art. 108 (2) of the Constitution (item 1).
Sometimes European standards of protection have been adopted to implement special directives (e.g., about procurement and public contracts) by way of a legislative choice, but the new features have been applied to solve questions of purely domestic law.
It is the case of the interim protection, which has been strengthened by the introduction of the preliminary interim relief “inaudita altera parte”.
As a consequence of the judgment “Francovich” and the EC’s directive 89/665/EEC, the right to compensation for loss arising from the wrongful exercise of power has been recognised (in 1999).
Summarizing, the principles enshrined by Art. 6 of the ECHR have been absorbed by the new version of Art. 111 of the Constitution.
Furthermore recently, in 2010, the Code of the Administrative Procedure came into force. It deals with all the issues of the administrative trial in compliance with the EC’s principles, such as “the right to an adversarial proceedings and the principle of “equality of arms” between the parties” and “the right to a reasoned decision” (items n° 3 e 4).
The right to a judicial decision made within a reasonable time (item n° 5) is provided for by Art. 111 the Constitution, according to the rules of Law n° 89/2001 (so-called “Law Pinto”), which offers a special claim for compensation.
However questions concerning the real degree of effectiveness of the judicial protection are debated, especially in some fields. For example, it is asked whether higher and higher fees and the rules for legal aid (namely for not EU foreigners) are fit to guarantee the access to justice.
Eventually I would like to remind that in 2011, by order n° 1628/2011, the Regional Administrative Tribunal for Sicily (Pres. F. D’Agostino ; Reporting Judge G. Tulumello) submitted to the Constitutional Court the question whether the expiry date for filing the claim for compensation (after the annulment of the challenged administrative act) is an infringement of the right to a full and effective legal protection (i.e. to Art. 24 of the Constitution).
II The influence of principles of European law in the evolution of administrative law
6. The principle of legality and the respect for fundamental rights :
7. The principles of primacy and direct effect of European Union law :
9. The principle of subsidiarity :
10. The principle of transparency :
11. The principle of public participation :
12. The principle of egality and non-discrimination :
13. The principle of proportionality :
14. The precautionary principle :
15. Protection of legitimate expectations and the principles of legal certainty and good faith :
16. The principle of responsibility :
17. The impact of other principles of European law on administrative law ?
Italian legal system has a large number of principles concerning the
action of the public administration and the legal protection of private
individuals made up on the basis of the principles of case-law and the
attainments of scholars. Most of those principles have been codified,
some at constitutional level, some at legislative level (especially
through Law n° 241/1990 on the administrative proceeding), but some
remain unwritten. Generally speaking they have been implemented in the
judgments by the Council of State (High Court for administrative cases)
and the Regional Administrative Tribunals.
The Italian administrative law’s principles derive from a common European tradition and thus are not different from the EU’s ones, as mentioned in the items n° 6-12 and 15-16.
Instead, in the past we knew neither the principle of proportionality nor the precautionary principle, even though they (especially the first one) can be considered as implicit in other principles. Indeed the Italian judge has always used a reasonableness test in reviewing discretionary power exercised by the public administration.
Although under Article 5 of the Treaty on European Union the principle of proportionality is described as a rule for the institutions whose action must be limited to what is necessary to achieve the objectives of the Treaties, the Italian judge uses this principle in different ways to scrutiny the discretionary powers of a public body, when the latter has to consider and balance several interests involved that are relevant for their decision. In other words he/she checks whether an administrative measure is appropriate (suitable) and necessary in order to reach or achieve a given goal or objective, as well as proportionate (item n° 14).
The precautionary principle has been applied for by administrative judges, too, especially in the matter of environment law (it is clearly mentioned under Art. 3 ter of the Environment Code) and for urgent measures in cases of public danger, disaster and so on (item n° 15).
At the end we shall recall that the European Court of Human Rights (ECHR) has repeatedly condemned Italy for the infringement of the right of property, so that the Law on expropriation has been amended and the former, special form of expropriation de facto which had originated the litigation, has been repealed (item n° 6).