Judicial Review of Administrative Action: Europe and Latin America

2021 ◽  
pp. 316-325
Author(s):  
Mario P. Chiti
Keyword(s):  
European Union ◽  
Latin America ◽  
International Organizations ◽  
Judicial Review ◽  
The European Union ◽  
Council Of Europe ◽  
Administrative Procedure ◽  
Administrative Action ◽  
Judicial Proceedings ◽  
General Part

This chapter provides a comparison of the discipline of judicial review of administrative action in Latin America and in Europe. In terms of judicial review in Latin America, international organizations did not exercise an 'integrative influence' as the Council of Europe and the European Union did in Europe. It may be said that the relative homogeneity of the systems of judicial review in Latin America is mainly the result of the cultural polity formed by many states resulting from the disintegration of the Spanish and Portuguese domains. The chapter then considers the main points of the general part of Professor Brewer-Carias's report on the discipline of judicial review of administrative action in Latin America, which shows a situation very similar to the European one. These include the nature of judicial review; administrative procedure and judicial review; procedural infringements; administrative appeals; monism and dualism; and judicial proceedings.

Administrative Procedure and Judicial Review in the European Union

2021 ◽  
pp. 47-49
Author(s):  
Matteo Gnes
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Eu Law ◽  
The European Union ◽  
Administrative Procedure ◽  
Administrative Action ◽  
National Courts ◽  
The Common ◽  
Procedural Requirement ◽  
The Eu

This chapter assesses administrative procedure and judicial review in the European Union. The requirement of judicial oversight of administrative action, which results from the common constitutional traditions of the Member States of the EU, is a general principle of EU law, and it is applicable both to proceedings before the Court of justice and before national courts, when EU law is invoked before them. The EU courts carry out a generalized review on any binding acts. Although there are certain differences between acts that may be challenged according to the different remedies provided by EU law, in order to be challengeable, the acts must fulfil several conditions. The most important are: they must be binding and produce legal effects, be definitive and be taken by EU institutions in the exercise of their competencies. Article 263 TFEU provides that the acts of EU institutions may be annulled on grounds of 'lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers'. Acts or failure to act may give rise to the liability of EU institutions.

Judicial Review of Administration in Europe

2021 ◽  
Author(s):  
Giacinto della Cananea ◽  
Mauro Bussani
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Common Core ◽  
Legal Systems ◽  
The European Union ◽  
Council Of Europe ◽  
Administrative Action ◽  
Core Method ◽  
The Common ◽  
The Comparative Study

This book is about judicial review of public administration. Many have regarded this as dividing European legal orders, with judicial review of administrative action in the general courts or specialized administrative courts, or with different distance from the executive. There has been considerably less comparison of the basic procedural and substantive principles. The comparative study in this book of procedural fairness and propriety in the courts reveal not only differences but also some common and connecting elements, in a ‘common core’ perspective. The book is divided into four parts. The first explains the nature and purpose of a comparison to understand the relevance and significance of commonality and diversity between the legal systems of Europe, and which considers other legal systems which are more or less distant and distinct from Europe, such as China and Latin America. The second part contains an overview of the systems of judicial review in these legal orders. The third part, which is the heart of the ‘common core’ method, contains both a set of hypothetical cases and the solutions, according to the experts of the legal systems selected for our comparison, to the cases. The fourth part serves to examine the answers in comparative terms to ascertain not so much whether a ‘common core’ exists, but how it is shaped and evolves, also in response to the influence of supranational legal orders as the European Union and the Council of Europe.

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'.

scholarly journals ADMINISTRATIVE APPEALS IN THE EUROPEAN UNION: TOWARDS A COMMON MODEL OF ADMINISTRATIVE JUSTICE

2019 ◽  
pp. 87-107
Author(s):  
Estanislao Arana García
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Low Cost ◽  
Eu Law ◽  
The European Union ◽  
Anglo Saxon ◽  
Administrative Procedure ◽  
Creative Solutions ◽  
Judicial Procedure ◽  
Near Future

Purpose. The aim of this paper is to analyse the activity of the European agencies as a mechanism of control prior to the judicial review. This procedure is carried out by independent and impartial administrative tribunals. This model supposes to create specialized administrative organs that solve conflicts previous to the judicial procedure. The “agencies model” is mainly used in western countries with legal Anglo-Saxon reminiscences. In this paper we analyze the importance of these agencies and its possibilities for improvement in the near future. Method. To achieve this goal it is necessary to: 1) analysis the creative solutions of the agencies courts; 2) verify the performance of agencies through the information provided by themselves; 3) discuss the judicial decisions from a scientific perspective. This process has been implemented through direct contact with experts and professional actively involved at these European administrative courts. Results. EU law is haphazardly creating a system of administrative review that is in many cases a pre-condition to judicial review. This system is most evidently manifesting itself in the application of EU law by administrative agencies. For this purpose, some of the EU’s most important agencies have created specialised bodies known as boards of appeal. These objective and independent bodies have the power to review the decisions of the agency they form part on based on both questions of law and fact. The paper aims to establish a critical vision of the role that new judicial forms are developing and the importance of to reach a specialized criterion for solving technically increasingly complex issues. Conclusions. The board-of-appeal model has proven a successful one as it offers parties a low-cost and effective way of having their complaints resolved without having to go to the European Union Court of Justice. Lastly, there appears to be a need for the European Union to, as it is currently doing with administrative procedure, establish a common set of rules for this emerging remedy for reviewing European administrative acts.

scholarly journals The Phenomena of Fragmentation in the Legal Relations between the Council of Europe and the European Union

2020 ◽  
Author(s):  
Viktoriya Kuzma
Keyword(s):  
European Union ◽  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Continent ◽  
Court Of Justice ◽  
European Court ◽  
The Law

This article presents the current issues in the law of international organizations and contemporary international law in general. It is pointed out that the division of international law into branches and institutions, in order to ensure the effective legal regulation of new spheres of relations, led to the emergence of autonomous legal regimes, even within one region, namely on the European continent. To date, these include European Union law and Council of Europe law. It is emphasized the features of the established legal relations between the Council of Europe and the European Union at the present stage. It is determined that, along with close cooperation between regional organizations, there is a phenomenon of fragmentation, which is accompanied by the creation of two legal regimes within the same regional subsystem, proliferation of the international legal norms, institutions, spheres and conflicts of jurisdiction between the European Court of Human Rights and the Court of Justice of the European Union. It is revealed that some aspects of fragmentation can be observed from the moment of establishing relations between the Council of Europe and the European Union, up to the modern dynamics of the functioning of the system of law of international organizations, the law of international treaties, law of human rights. Areas and types of fragmentation in relations between international intergovernmental organizations of the European continent are distinguished. One way to overcome the consequences of fragmentation in the field of human rights is highlighted, namely through the accession of the European Union to the Convention on Human Rights and Fundamental Freedoms 1950. Considerable attention has also been paid to defragmentation, which is partly reflected in the participation of the European Union in the Council of Europe’s conventions by the applying «disconnection clause». It is determined that the legal relations established between an international intergovernmental organization of the traditional type and the integration association sui generis, the CoE and the EU, but with the presence of phenomenon of fragmentation in a close strategic partnership, do not diminish their joint contribution into the development of the law of international organizations and contemporary international law in general. Key words: defragmentation; European Union; European Court of Human Rights; Convention on Human Rights and Fundamental Freedoms 1950; conflict of jurisdictions; «disconnection clause»; Council of Europe; Court of Justice of the European Union; fragmentation; sui generis.

The New Hungarian Constitution: Legal Critiques from Europe

2017 ◽  
Vol 42 (1) ◽  
pp. 1-49 ◽  
Author(s):  
Katalin Kelemen
Keyword(s):  
European Union ◽  
International Organizations ◽  
The European Union ◽  
Council Of Europe ◽  
European Court ◽  
Different Types ◽  
Fundamental Law ◽  
Legal Arguments ◽  
Venice Commission ◽  
Legislative Reforms

Hungarian constitutional and legislative reforms have been in the spotlight since Hungary’s adoption of a new Fundamental Law, which entered into force on the first day of 2012. Europe’s two leading international organizations (the Council of Europe and the European Union) already issued an opinion about it the year before its entry into force, and they continued to closely follow Hungarian constitutional developments during ensuing years. The new Fundamental Law was followed by a series of new ‘cardinal laws’ and many controversial reforms. This article presents and discusses the opinions delivered by the Venice Commission, the European Court of Human Rights, and the eu institutions on these reforms and the different types of arguments on which they relied. This article also aims to present the interaction between the Hungarian government and Europe’s two leading organizations concerning the new constitutional setting of Hungary, focusing on the legal arguments in each case.

scholarly journals Entrenching the Problem? International Organizations and Their Engagement in Latin America to Address Violence: The Case of the European Union in the Northern Triangle

2021 ◽  
Vol 43 (2) ◽  
pp. 355-379
Author(s):  
Kai Lehmann
Keyword(s):  
European Union ◽  
Latin America ◽  
Conceptual Framework ◽  
Central America ◽  
International Organizations ◽  
The European Union ◽  
Financial Investment ◽  
Human System ◽  
The World

Abstract Latin America is the most violent region in the world. Yet, decades of political and financial investment by the international community have not had the desired results. Using the work of the European Union in the Northern Triangle of Central America as a case study, this article asks what explains this failure. Utilizing the conceptual framework of Complexity and Human System Dynamics, it argues that current policies actually entrench the pattern of conditions which lead to, and sustain, violence. It shows how, by reconceptualizing this problem using the concepts of Complexity, policies could be made more effective and sustainable.

Administrative Procedure and Judicial Review in Latin America

2021 ◽  
pp. 65-68
Author(s):  
Allan Brewer-Carias
Keyword(s):  
Latin America ◽  
Latin American ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Administrative Procedure ◽  
Administrative Action ◽  
Administrative Act ◽  
Administrative Jurisdiction ◽  
Almost All ◽  
Latin American Countries

This chapter explains administrative procedure and judicial review in Latin America. Judicial review of administrative action has been constitutionalised in many Latin American countries, like Colombia, Costa Rica, Guatemala, Panama, Peru, Uruguay, and Venezuela, and has been the object of special laws regulating the jurisdiction. According to the Constitutions and to the laws regulating the contentious administrative jurisdiction in Latin America, all administrative provisions are subjected to judicial review as it is not possible for any administrative act to escape judicial control. Therefore, the principle applicable is the universal character of the judicial oversight of constitutionality and unlawfulness regarding regulations and administrative acts, which is exercised by the Courts without exception. In almost all Latin American countries, the rules of administrative procedure are regulated through special Administrative Procedure Lasw (APLs), which began to be sanctioned in 1972 (Argentina). In all cases where the courts find that a challenged administrative act infringes the fundamental rights of an individual or corporation, or does not meet the fundamental standards of administrative propriety and fairness, the courts of the contentious administrative jurisdiction in all Latin American countries have the power not only to annul the challenged act but, depending on the nature of the claim filed by the plaintiff, the courts can also award damages for the administrative action.

scholarly journals CRIMINAL LIABILITY OF LEGAL ENTITIES IN SPAIN: ESTABLISHMENT AND GENERAL PROVISIONS

2019 ◽  
Vol 11 ◽  
pp. 72-80
Author(s):  
Aleksandr V. Fedorov ◽  
◽  
Keyword(s):  
European Union ◽  
International Organizations ◽  
Criminal Liability ◽  
Decisive Role ◽  
Criminal Code ◽  
The European Union ◽  
Council Of Europe ◽  
Legal Personality ◽  
Gradual Introduction ◽  
Legal Entities

The article is dedicated to issues of criminal liability of legal entities in the Kingdom of Spain. It is noted that Spain refers to the countries whose criminal laws are codified only in part and include special laws in addition to the national criminal code. Criminal liability of legal entities is established and regulated by the Criminal Code as well as by special criminal laws. Gradual introduction of criminal liability of legal entities in Spain by means of corresponding amendments to criminal laws is reviewed. Attention is directed to the fact that the decisive role in the establishment of criminal liability of legal entities is played by Spain’s membership in the Council of Europe, the European Union (EU) and the Organization for Economic Cooperation and Development (OECD), which impose requirements for bringing national laws of the member states in compliance with the standards of such international organizations in terms of introduction of criminal liability of legal entities. It is noted that the Criminal Code of Spain has initially included only provisions on civil liability of legal entities and has been supplemented with provisions on criminal liability of legal entities later. Amendments to the Criminal Code of Spain introduced in 2010 and establishing criminal liability of legal entities as well as further legal novelties regulating such liability are analyzed. The range of subjects of criminal liability established for legal entities and legal entities immune from such liability are indicated. Attention is directed to the issues of bringing to criminal liability of legal entities having lost their legal personality as a consequence of merger, acquisition, split-up or liquidation after committing a crime. It is noted that legal entities may be brought to liability not for any crimes stipulated by the national laws, rather just for some of them, specifically described in the criminal laws.

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