Comparative public law in Europe
On 1st December 2017, the CoCEAL project (Common core of European administrative law principles, a project funded by the European Research Centre for 2016-2021 and carried out under the academic direction of Professor Giancinto della Cananea (Tor Vergata)) held a meeting in sunny Rome, under the title: “‘Fin de siècle’ Administrative Law: Judicial Standards for Public Authorities 1890-1910”. This meeting aimed to gather young legal scholars, legal historians, comparative lawyers and political scientists to discuss how six European legal systems (Austria, Belgium, France, Germany, Italy and England and Wales) have developed a system of judicial review of administrative action during the period 1890-1910.
This diachronic comparison aimed to map whether similarities and/or differences in judicial intervention and creativity could be identified. The main hypothesis is indeed that faced with similar needs to address industrialisation externalities, countries sharing similar socio-economic and political challenges have changed the ways in which public bodies intervene in economic transactions and have sought to balance economic and social concerns in new ways. This led then the judges to develop a similar body of legal principles in order to review these administrative techniques at around the same time. However, apart from the French case, there is currently a dearth of information and accurate data regarding the development of judicial standards for administrative actions in many European countries. It is thus not possible to assess whether there might be “shared and connecting elements” across the administrative law in a range of European states. The CoCEAL project seeks to fill this gap in our academic knowledge. It borrows its methodology from the method developed by Professor Schlesinger (Cornell) in comparative private law, with some adaptation due to the specific nature of administrative law, notoriously known for being very much embedded in national traditions and history.
The discussions were broken down into two rounds of national presentations: the first round brought together France, Germany and England and Wales; the second round brought together Belgium, Austria and Italy. Each country report was discussed by a senior scholar expert in the field. Each round benefitted from insights and comments given from a more external perspective (such as comparative private law or political science). Lively general discussions ensued.
Here is a very brief overview of this very stimulating meeting.
(Rapporteur: Jérémy Mercier – Discussant: Grégoire Bigot, University of Nantes)
Very importantly, the French Conseil d’Etat was primarily an institution that sought to review administrative action to correct gross administrative mistakes. It was not organised with the view to protect individual freedoms. However, reviewing, limiting and channelling administrative activities did actually result in protecting individual freedoms. The French Conseil d’Etat developed as the main institution in a position to adjudicate social and political conflicts that the highly unstable government was not able to decide upon (e.g. relationships between State and Church) during the IIIrd Republic (1871-1940). The administrative judge grew definitively out of the shadow of the administration, with the theory of “minister-judge” (meaning that the administration is its own judge) definitively set aside. Its case law expanded greatly the control on the administration and developed innovative techniques (including expanding standing) to control the administration. While this judicial process was very pragmatic and casuistic with no sophisticated intellectual framework underpinning it, the scholarship expanded its reach greatly. French scholarship was not purely domestic however: it developed and borrowed strongly from the German scholars to build its own understanding of the state and its limits.
(Rapporteur: Conor McCormick – Discussant: Robert Thomas, University of Manchester)
When we seek to leave normative considerations aside to describe English administrative justice empirically as it was in operation in 1890-1910, it appears that is was far more nuanced than what Dicey wanted it to be. It is very challenging to find a clear structure or some consistency among the different personal choices that seem to have directed judges in a range of cases (e.g. to granting access to some writs or to classify matters as jurisdictional or non-jurisdictional). However, a substantive body of administrative law was clearly emerging. There are distinct instances of attempts to define legal principles allowing courts to control the ways in which administrative action is exercised. For instance, a duty for any decision-maker to hear and listen fairly to both sides was clearly expressed. The overall administrative justice landscape in England and Wales may well look like a bush but there were definitively standards of administrative action that were developed. As such this should not really surprise us: Maitland, Dicey’s contemporary, had already mapped part of this field in flagging up the role and activities of local boards, public health regulations and similar.
(Rapporteur: Lilly Weidemann – Discussant: Marcello Clarich, LUISS University)
During our reference period, all major components of the 26 entities composing the German Reich (1871-1918) had set up administrative judges. Prussia, the main component (3/5 of the population), did so in 1875 for instance. In the past, a tension had arisen between the “state of justice” (where civil judges would exercise control over administrative action) and “administrative justice” (where control was exercised by the administration itself). The administrative jurisdictions that were eventually created were a third option, a blend between the previous two options. At the lower level, there were entities that would not be labelled courts today, namely administrative bodies exercising functions close to judicial review. At the higher level, independent courts were set up. Distinctions are noteworthy across the Reich. For instance, in the Southern part, subjective rights were to be protected by the administrative courts, while in the Northern part, an objective control was exercised. Another difference pertained to the the way in which jurisdiction was granted to the courts: in some cases, a general competence to review administrative action was granted; in other cases, the competence was limited to an enumerated list of matters that were subjected to judicial review.
(Rapporteur: Yseult Marique – Discussant: Pierre Nihoul, Université catholique de Louvain)
As a young country in formation emerging on the international scene in 1831, Belgium sought to develop a liberal constitution with a balanced separation of powers. On this ground, Belgium rejected the French model in 1831 as being too much engrained with authoritarism. It entrusted the judiciary with the mission to protect individual (civil and political) rights. In many ways, Belgium was atypical. Among the three techniques to control the administration (namely, 1) annulment for excess of power; 2) exception of illegality; 3) liability), only the second one was recognised in the constitution and widely used, especially when it came to criminal proceedings. Administrative liability was developed in an unsystematic way, but the case law that was developing in our reference period paved the way to a major decision in 1920 when the Supreme Court decided that administrative liability followed the same legal principles and was regulated by the same legal provisions as civil liability. Only in 1946, would a Conseil d’Etat (and a proper control for excess of power) be set up. However, this development was only possible on the basis of the ground prepared by the Supreme Court’s case law, the scholarly discussions and the parliamentary debates that emerged within the socio-economic and political context of 1890-1910.
(Rapporteur: Angela Ferrari Zumbini – Discussant: Luca De Lucia, University of Palermo)
In 1875, Austria set up one administrative court of one instance for the whole Empire, the Verwaltungsgerichtshof. There was one general clause providing for two grounds for quashing administrative decisions: 1) the violation of essential forms (which were not defined or listed in any ways); 2) the unlawfulness of administrative decisions. Interestingly, the annulment of an administrative decision resulted in a duty for the administration to repeat the administrative procedure. There were however limits to this system, such as for example the exclusion from judicial review of decisions taken on the ground of “free discretion” (free Ermessen, which was not legally defined) or the absence of control on the merits of administrative decisions. Nearly every year thereafter, the administrative judge had the opportunity to fine-tune its control. For instance, in 1894, the right to be heard for parties affected by the administrative decision was found to be a “self-evident requirement”. In 1908, the court specified that administrative decisions needed to be taken in good time and in a language that the party understood (Austria was a multi-lingual entity). This resulted in a well structured system of judicial review and laid the ground for the adoption of the Austrian general law of administrative procedure in 1925.
(Rapporteur: Alessandra Bassani – Discussant: Marco Mazzamuto, University of Palermo)
The Italian Conseil d’Etat exercised an advisory role and gracious justice since 1865. It became an administrative judge in 1889. During the period 1890-1910, i.e. the first twenty years of its existence, the Fourth Chamber of the Conseil d’Etat decided 240 cases related to excess of power. In doing so, the Conseil d’Etat developed key features of judicial review. It gave sustained attention to individual rights (away from its original mission which was supposed to be focused on an objective control of legality). It also reviewed facts and extended its control nearly to examining the fairness of administrative decisions. It also focused on procedural matters. It doing so the case law definitively contributed to later developments taken over by the Legislature.
(Main discussants: Leopolodo Moscoso (University Pontificia Comilla); Alec Stone Sweet (Singapour), Roberto Caranta (University of Turin); Giancinto della Cananea (University of Rome Tor Vergata); Mauro Bussani (University of Trieste); Stefano Mannoi (University of Florence))
First, a few very interesting differences emerge from the presentation of the national reports. For instance, “Administrative” judges were very different institutions from country to country: sometimes the ordinary judge, sometimes the Conseil d’Etat, sometimes one single court, sometimes a system of administrative bodies and administrative courts. The discussions between subjective and objective control were not solved in the same ways across our countries. The type of cases that were more prominent varies also from country to country. In Belgium, many cases were related to criminal prosecutions or were administrative disputes involving local government (and very few involving central government). In Austria, more than half the cases related to taxation. In France, litigation related to civil servants was important as it was seen as a way to eradicate political arbitrary and discipline civil servants so that they would be careful to comply with the decisions taken by the administrative judge etc.
Secondly, two major questions relate to the main similarity across the studied countries: judicial review emerges, judges exercise control over administrative action and by and large retain this control and develop incrementally standards for administrative action. The main question pertains to this development itself. Why did the executive and its administration accept to be controlled in the way that it did without pushing back? Why did they accept to be constrained in their action and decision-making by the judges? It is true that the autonomy that the administrative judges enjoyed differed from one country to the other. In France, the IIIrd Republic was very unstable, with a very weak parliament and government changing every couple of months. The Conseil d’Etat provided a kind of stability that helped it to consolidate its case law and develop a framework of standards to assess administrative action. In England and Wales, judges had to be more cautious to know how far they could seek to control administrative bodies. Similarly, the Belgium judiciary was cautious to look for solutions where individual rights could be protected and administrative action not unduly constrained as long as they benefited the general interest and public order. However, overall, the state and public bodies accepted that their action became increasingly legal and regulated. Why? Was it really self-evident?
The second question pertains to the internationalisation of similar ideas across the studied countries: why and how did similar principles (such as the right to be heard) emerge around the same time? Where do the principles come from? Did the judges read similar materials? At a time without Internet, LinkedIN and low cost flights across Europe, how did they have access to decisions and debates in other countries? How did their network work? What kind of books did they have on their shelves? What kind of material and information did the major law reviews of the time make available to their readers? Were they part of the same kind of elite and epistemic communities? How were these elites and communities formed, shaped, transformed?
Finally, this triggers a range of fascinating hypotheses and ideas about the reasons that caused judicial review to arise (as a matter of principle) as well as about the modalities that it takes. Here is a small selection of these ideas that require further reflexion, investigation and testing:
These extremely provocative questions and reflections call for further comparative, historical and interdisciplinary research ! Very much looking forward to the next steps of this project !
Dr Yseult Marique
University of Essex
(Suggested citations: Y. Marique, “Account – Workshop: “‘Fin de siècle’ Administrative Law: Judicial Standards for Public Authorities 1890-1910””, available at https://europeancommonwealth.org/2018/01/08/account-fin-de-siecle-administrative-law-judicial-standards-for-public-authorities-1890-1910)