Administrative Procedure and Judicial Review in Belgium

2021 ◽  
pp. 41-43
Author(s):  
David Renders ◽  
Luca Ceci ◽  
Sarah Koval
Keyword(s):  
Judicial Review ◽  
Administrative Procedure ◽  
Procedural Error ◽  
Administrative Measure ◽  
Council Of State

This chapter evaluates administrative procedure and judicial review in Belgium. The Belgian Constitution embodies, in particular, two constitutional provisions for the judicial oversight of unilateral administrative measures. A Council of State was established pursuant to Article 160 of the Constitution. Under the Act adopted on the basis of this provision, the Council of State is responsible for judicial review, on condition that such review has not been attributed to another ordinary or administrative court. Moreover, Article 159 requires judges not to apply any unilateral administrative measure that would be unlawful in the context of a dispute that they are called upon to settle. All unilateral administrative provisions, whether regulatory or individual, may be reviewed. A procedural error does not necessarily lead to the censure of the unilateral administrative provision in question. However, the breach of a requirement that the administration has to fulfil leads not only to the censure of the provision but can, as the case may be, give rise to compensation.

Administrative Procedure and Judicial Review in Italy

2021 ◽  
pp. 62-64
Author(s):  
Diana-Urania Galetta ◽  
Paolo Provenzano
Keyword(s):  
Judicial Review ◽  
Administrative Authority ◽  
Judicial Process ◽  
The Public ◽  
Appeal Court ◽  
Administrative Procedure ◽  
Legitimate Interests ◽  
Administrative Courts ◽  
Council Of State ◽  
Administrative Justice

This chapter illustrates administrative procedure and judicial review in Italy. According to article 113 of the Italian Constitution, 'the judicial safeguarding of rights and legitimate interests before the organs of ordinary or administrative justice is always permitted towards acts of the public administration'. In Italy, judicial review of administrative action is performed by specific courts: a court of first instance, called Tribunale Amministrativo Regionale (TAR), which is established in every Region, and the Consiglio di Stato (Council of State), which acts as an appeal court. The judicial process before these courts is now regulated by the Code of Administrative Process (CAP). Article 7 CAP provides that the administrative courts have jurisdiction over all acts that the public administrations and legal entities equivalent to them adopt in the exercise of their administrative authority. Since 1889, the Italian system of administrative justice has centred on the provision that administrative acts can be annulled by the administrative courts only in cases of 'breach of law', 'misuse or abuses of power', and/or 'lack of competence'.

Administrative Procedure and Judicial Review in Hungary

2021 ◽  
pp. 59-61
Author(s):  
András Zs. Varga
Keyword(s):  
Judicial Review ◽  
Point Of View ◽  
Administrative Procedure ◽  
Administrative Action ◽  
Basic Law ◽  
Legal Remedy ◽  
Administrative Measure ◽  
Constitutional Right ◽  
Judicial Procedures ◽  
The Right

This chapter studies administrative procedure and judicial review in Hungary. Section (1) of Article XXVIII of the Basic Law of Hungary (the Constitution of 2011) regulates the right to a fair trial reproducing the text almost word-for-word as found in Article 6 of the European Convention on Human Rights (ECHR). Consequently, anyone effected by an administrative measure has the (constitutional) right to judicial review. Section (7) guarantees the right to legal remedy against decisions of the courts, the public administration, or other authorities that infringe their rights or demonstrable interests. The two regulations are effective even separately, but their combined effect is that the judicial review of administrative action is an incontestable constitutional right. Administrative courts decide on the legality of the administrative action from the point of view of substantive and procedural administrative law, the judicial review is regulated by Act I of 2017 on the Code on Judicial Review of Administrative Actions, while a lawsuit for damages is heard by the ordinary court in a civil law procedure regulated by Act CXXX of 2016 of the Code of Civil Judicial Procedures.

Administrative Procedure and Judicial Review in France

2021 ◽  
pp. 50-52
Author(s):  
Delphine Costa
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Administrative Law ◽  
Public Law ◽  
The Public ◽  
Administrative Procedure ◽  
Judicial Remedy ◽  
Individual Decisions ◽  
Laws And Regulations ◽  
Administrative Justice

This chapter describes administrative procedure and judicial review in France. In French public law, no constitutional provision provides for judicial review of administrative measures. Nor is there a convention providing for judicial review of administrative measures. This is only envisaged by the laws and regulations, in particular the Administrative Justice Code and the Code of Relations between the Public and the Administration. The administrative courts exercise extensive control over the acts or measures of the public administration, including both individual decisions and regulatory acts, but some are nonetheless beyond judicial review. Where an act or measure is contested on procedural grounds, judicial review takes place only under certain conditions: the procedural defect must have deprived the applicant of a guarantee or it must have influenced the meaning of the decision taken. Two types of judicial remedy exist in administrative law: it is therefore up to the applicant to limit their application before the administrative judge.

Administrative Procedure and Judicial Review in Lithuania

2021 ◽  
pp. 69-71
Author(s):  
Agnė Andrijauskaitė
Keyword(s):  
European Union ◽  
Public Administration ◽  
Judicial Review ◽  
General Rule ◽  
The European Union ◽  
The Public ◽  
Administrative Procedure ◽  
The Law ◽  
Administrative Courts ◽  
Administrative Proceedings

This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of Lithuania's 'unflinching' desire to join the European Union and was meant to strengthen the protection of individual rights and administrative accountability. Two cornerstone acts in this regard, the Law on Public Administration and the Law on Administrative Proceedings (APA), were adopted in 1999. Administrative courts were also established in the same year. Article 3 (1) APA spells out the general rule that administrative courts settle disputes arising in the domain of the public administration. All the acts and measures excluded from the competence of administrative courts are listed in Article 18 APA, which establishes the so-called negative competence of administrative courts. Meanwhile, Article 91 (1) (3) APA provides that the impugned administrative decision may be quashed if 'essential procedural rules intended to ensure objective and reasonable adoption of an administrative decision were breached'.

Administrative Procedure and Judicial Review in Germany

2021 ◽  
pp. 53-58
Author(s):  
Lilly Weidemann
Keyword(s):  
Judicial Review ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Protective Effects ◽  
Administrative Procedure ◽  
Basic Law ◽  
Federal Statute ◽  
The Right ◽  
Substantive Law ◽  
Subjective Rights

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

Proceduralism and Automation

2020 ◽  
pp. 275-298 ◽  
Author(s):  
Carol Harlow ◽  
Richard Rawlings
Keyword(s):  
Artificial Intelligence ◽  
Public Administration ◽  
Judicial Review ◽  
Due Process ◽  
Case Law ◽  
Administrative Law ◽  
Paradigm Change ◽  
Technological Revolution ◽  
Administrative Procedure ◽  
The Impact

In this chapter, we argue that administrative procedure has become a central organising concept for administrative law. Our first theme is the steady proceduralisation of public administration experienced in recent years, in the framework of a relationship between courts and administration which we present as a two-way, non-hierarchical process. We look first at internal drivers to proceduralisation emanating from administration, notably the managerial reforms of the 1980s and the rise of regulation as a standard governance technique. We then turn to the contemporary case law of judicial review, focussing on the judicial response to, and stimulus for, administrative proceduralism. Our second theme is the idea of procedures as a repository for values and of values as an important, though often subliminal, driver of administrative procedure. We look at the potential for exchange as well as dissonance between public administration and administrative law. Our third theme concerns challenges to administrative law from the technological revolution currently under way. The impact of automation on public administration was at first rather modest; today, however, technology is taking great leaps forward—from computerisation to artificial intelligence and beyond. The innovations have so far been welcomed as beneficial—faster and more consistent administration, swifter and less costly courts and tribunals. It is time to recognise that we are facing a paradigm change, in which key values and procedures of administrative law, such as transparency, accountability, individuation, and due process, will need to be supported and sustained.

Administrative Procedure and Judicial Review in China

2021 ◽  
pp. 44-46
Author(s):  
Xiaowei Sun
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
Global Market ◽  
The State ◽  
International Standards ◽  
Administrative Litigation ◽  
The Public ◽  
Administrative Procedure ◽  
Definition Of ◽  
Direct Applicability

This chapter focuses on administrative procedure and judicial review in China. Despite its willingness to adapt to the rules of the global market, China does not accept the direct applicability of international standards in administrative litigation. Judicial review of administration is based on a set of legislative texts and judicial interpretations by the Supreme People's Court. Among these texts, the Administrative Litigation Law regulates the judicial review of administrative acts. There are two lists in its chapter concerning the scope of judicial review: one includes the administrative acts that are open to judicial review, another the acts that are not reviewable. In any case, it is up to the courts to examine the following two combinations of criteria: the degree of the seriousness of the infringement with the definition of the state interest and that of the public interest; and the degree of procedural breach with the definition of the real impact on the rights of the plaintiff. According to Article 76 of the ALL, in the case of annulment and/or declaration of unlawfulness of an administrative act, a court may order the administration to take measures to compensate the damage inflicted on the plaintiff.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

2021 ◽  
pp. 41-72
Author(s):  
Angela Ferrari Zumbini
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Affairs ◽  
Main Theme ◽  
Administrative Procedure ◽  
Administrative Action ◽  
General Principles Of Law ◽  
Liberal Approach ◽  
The Right

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

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