The Principle of Effective Legal Protection in Administrative Law

The Principle of Effective Legal Protection in Administrative Law –

A Comparative Perspective in Europe

Analytical Framework

Project leaders: Prof. Zoltán Szente and Konrad Lachmayer

Research problem and research questions

European integration affects nearly all areas of law of the member states. In the last 20 years different parts of administrative law have become more and more integrated into the European legal network. EU law builds upon the different systems of law, which are very divergent. Different European approaches are used to deal with this challenge: harmonization, mutual recognition or margins of appreciation, to name just a few. The proposed research project will compare the different traditions and institutional settings, focusing on a principle having a crucial role in every modern administrative system.

The protection of rights and interests of the citizens is one of the most important functions of administrative procedures. But the same rules have to ensure the effectiveness of the whole process, enforcing public interest and the law. The collision between the legally recognized rights of the citizens as parties of the administrative procedures, and public interest as represented by public authorities inevitably occurs in a great number of individual administrative procedures.

Under these circumstances, the research will seek the answers to the following questions: How are the rights and legitimate interests of citizens protected in the administrative procedures in the European countries? What sorts of rights and what scope of interests are protected? What are the similarities and differences in this area? Are there any common European trends in the methods of protecting rights, crystallizing some basic standards of administrative law in this field? Or what independent variables determine the national specialities of rights-protection?

The comparative approaches in public law mainly focus on comparative constitutional law. Although there are also some significant studies on comparative administrative law (e.g. MPI Heidelberg, Ius Publicum Europaeum Project), these have aimed to draw up a general picture of the European administrative systems without deeper insight into the various basic principles in them. Moreover, they usually concentrate on European administrative law and its effects on the national administrative systems of the member states, inspired by the European institutions, mainly the European Court of Justice and the European Court of Human Rights.

The principle of effective legal protection has in particular been shaped over the last decades by the European Convention of Human Rights and the case law of the European Court of Justice (ECJ). On the one hand, Art 6 and especially Art 13 the European Convention on Human Rights (ECHR) refer to guarantees of effective legal protection, on the other hand the ECJ has developed within its general principles of EU law a principle of effectiveness, which also includes a principle of effective legal protection.

Although the definite role of common traditions and commonly shared values of the national public administrations are frequently emphasized, the domestic administrative law regimes used to get much less attention in the relevant literature. The comparative analysis, therefore, does not focus on EU law or the case law of the European Court of Human Rights (ECtHR), but goes back to the national approaches and institutional arrangements, embracing not only the similarities but also their distinctive elements as well. Although we recognise the inspiring role and the autonomous development of European administrative law in improving new concepts and values, we want to test our premise that the undisputed convergence between the EU member states is really an exchange of administrative ideas, legal constructions, values and principles between the national systems via the European institutions, rather than a straightforward development dictated or guided by the EU or the ECtHR. All instruments of the legal protection of individual rights have for a long time been deeply rooted in the (Western) European legal cultures and administrative systems even if not in the same way or to the same extent.

The book aims to describe and analyse the current state of effective legal protection in administrative law in contemporary Europe, assessing also the perspectives of future development in this area.

Research Concept

The research project will focus on effective legal protection as a particular principle of administrative law, which will be analysed in a comparative perspective. The experts involved will explore the principle from the perspective of each respective country. Certain contributions will focus on the theoretical basis of the principle and on the application of the principle on a European and international level.

The country reports aim to figure out the national understanding of the principle of effective legal protection in their own administrative law system. Taking the historical development as a starting point and considering European influences, the domestic particularities will be focused on.

On the basis of the national constitutional framework, two different approaches shall be introduced to this topic: an institutional and a rights-based perspective. The principle of effective legal protection presupposes an institutional system of legal protection (especially regarding courts). The effectiveness of legal protection moreover depends on certain individual rights, which guarantee its effectiveness. Although many rights, especially in the context of Art 6 ECHR could be mentioned, the study would like to focus only on some of those which are usually characterized as ‘procedural’ or ‘due process’ rights (e.g. right to access a court, binding decision, duration of court procedure, right to liability).

The participants – highly esteemed scholars of administrative law in their countries – will be asked to make national reports on the topic. For the collaborative work, we will establish an analytical framework on the major concepts and research methods to be used for the comparative study.

The structure of the country reports might include the following elements

Historical development of the idea of the principle of effective legal protection
Constitutional principles of legal protection (principle of fair trial, judicial control of administrative decisions, basic rights, etc.)
Substantive and procedural rights of clients (parties) of the administrative procedures

reasonable duration of procedures
right to access to court
other guarantees (freedom of information, liability of administrative bodies and their agents, etc.)

Institutional guarantees for legal protection in administrative procedures

administrative courts, ordinary courts, and quasi-judicial bodies (administrative tribunals)
non-judicial institutional control of administrative procedures (ombudsman-type institutions, constitutional complaints, etc.)
alternative procedures for conflict resolution (arbitration, mediation, conciliation)

Besides, some leading scholars will analyse the historical antecedents, the cultural contexts and the theoretical foundations of the topic. Finally, the principle will also be discussed from a European (EU, European Council) and international perspective.

For discussing both the national and comparative studies and identifying the major findings of the research, a two-day seminar was held for the authors in Budapest in June 2014, organised by the sponsor institutions, namely the National University of Public Service (Budapest) and the Institute for Legal Studies of the Hungarian Academy of Sciences (Budapest).

National reports shall be presented by the representatives of the following states:

Austria
Denmark
Finland
France
Germany
Hungary
Italy
Lithuania
Macedonia
Poland
Romania
Slovenia
Spain

Switzerland

The Netherlands

United Kingdom

The national reports serve as a starting point for a comparative discussion on the topic to identify similarities and differences between the European states. Generally speaking, the national reports on the rules concerning the principle of effective legal protection under administrative law in the various legal systems covered explain the historical development of such protection as well as its cultural context. Moreover, national methods of interpreting and applying the law will be taken into account to find out whether there are margins of appreciation for the decision-making body in taking decisions or adopting sanctions which can serve to produce justice in the individual case.

The last phase of the project is to edit and publish the national reports, the contextual papers and the results of the comparative discussion at a prestigious international publishing house.

Findings

The book is the first comprehensive study on the principle of effective legal protection in the national systems of administrative law in a cross-European perspective. It gives an insight into the differences and similarities of the national features of this basic principle. It explores this key concept in a comparative view analyzing the very recent trends, challenges and best practices.

The major argument of the book is that the principle has deep roots in the national legal systems and it is an integral part of the common European legal tradition. Consequently, despite the widespread presumption, it is not a new idea improved by the institutions of the European integration, even if the concept itself an innovation of the EU law. Although the jurisprudence of the ECJ and EHCtR has developed and extended the scope of the principle of legal protection in this area of law, the national administrative regimes have been able to preserve their own values and mechanisms, and the supranational institutions have much less practical impact than previously thought.

The research results will be published in an academic book by Ashgate Publishing (Britain) expectedly in the spring of 2016.

Time schedule of the research project

Milestones of the project

December 2013 Preparation of the project; Selection of contributors

May 2014 First drafts of national reports; Summary of the national reports and the theoretical contributions

June 2014 Seminar in Budapest; Discussion of the national reports and the major findings

December 2015 Finalizing the national reports and the other studies; Preparation of the book

Publication:

Zoltán Szente, Konrad Lachmayer (eds.): The Principle of Effective Legal Protection in Administrative Law. A European Perspective, Routledge, 2017.

Further information: https://www.routledge.com

Zoltán SZENTE Konrad LACHMAYER