Ministers’ Deputies
CM Documents
CM(2003)98-Add 3 (restricted) 13 August 2003
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851 Meeting, 9 September 2003
10 Legal questions
10.1 European Committee on legal co-operation (CDCJ)
d. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law and its Explanatory Memorandum
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Draft Recommendation Rec(2003)…
of the Committee of Ministers to member states
on the execution of administrative and judicial decisions in the field of administrative law
(adopted by the Committee of Ministers on …
at the … meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Considering that it is necessary to maintain the trust of private persons in the administrative and judicial system and that, for this reason, both decisions by administrative authorities entailing obligations for private persons and judicial decisions in the field of administrative law recognising rights for private persons should be executed;
Considering that the action of the administrative authorities presumes that their decisions are efficiently implemented by private persons;
Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;
Recalling in this respect the general principles governing the protection of the individual in relation to the acts of administrative authorities as set out in Resolution (77) 31 and the principles concerning the exercise of discretionary powers by administrative authorities set out in Recommendation No. R (80) 2;
Recalling also Recommendation No. R (89) 8 on provisional court protection in administrative matters, requiring the competent judicial authority, if the execution of an administrative decision may cause severe damage to the private persons to whom it is addressed, to take appropriate measures of provisional protection;
Considering that the efficiency of justice requires that judicial decisions in the field of administrative law be executed, in particular when they are addressed to administrative authorities;
Recalling in this respect the rights protected by the European Convention on Human Rights, of which the execution of court decisions within a reasonable time must be regarded as an integral part;
Recalling also Recommendation No. R (84) 15 relating to public liability, recommending that member states set up appropriate machinery to ensure that a lack of funds does not prevent obligations of public authorities in the field of public liability from being satisfied;
Recalling, finally, Resolution No. 3 of the 24th Conference of European Ministers of Justice, held in Moscow from 4 to 5 October 2001 on a “general approach and means of achieving effective enforcement of judicial decisions”, inviting the Council of Europe to “identify common standards and principles at a European level for the enforcement of court decisions”,
Recommends that the governments of member states ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation.
Appendix to Recommendation Rec(2003)…
Scope of application: the principles contained in this part apply to any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons, either physically or legally.
1. Implementation
a. Member states should provide an appropriate legal framework to ensure that private persons comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by judicial authorities of their rights and interests.
b. Where it is not provided for by law that the introduction of an appeal against a decision entails automatic suspension, private persons should be able to request an administrative or judicial authority to suspend the implementation of the contested decision in order to ensure the protection of their rights and interests.
c. This possibility should be exercised within reasonable time limits in order to avoid unnecessarily blocking the action of the administrative authorities and to ensure legal certainty.
d. In deciding on the request for suspension, the public interest and the rights and interests of third persons should be taken into account by the administrative authority and, unless it is excluded by law, by the judicial authority.
2. Enforcement
a. The use of enforcement by administrative authorities should be subject to the following guarantees:
i. enforcement is to be expressly provided for by law;
ii. private persons against whom the decision is to be enforced are to be given the possibility to comply with the administrative decision within reasonable time except in urgent duly justified cases;
iii. the use of and the justification for enforcement are to be brought to the attention of the private persons against whom the decision is to be enforced;
iv. the enforcement measures used including any accompanying monetary sanctions are to respect the principle of proportionality.
b. In urgent cases, the extent of the enforcement procedure should be proportionate to the urgency of the case.
c. Private persons should be able to lodge an appeal before a judicial authority against the enforcement procedure in order to ensure the protection of their rights and interests.
d. If the administrative authority does not use an enforcement procedure, those whose rights and interests are protected by the non‑implemented decision should be able to apply to a judicial authority.
a. Member states should ensure that administrative authorities implement judicial decisions within a reasonable period of time. In order to give full effect to these decisions, they should take all necessary measures in accordance with the law.
b. In cases of non‑implementation by an administrative authority of a judicial decision, an appropriate procedure should be provided to seek execution of that decision, in particular through an injunction or a coercive fine.
c. Member states should ensure that administrative authorities will be held liable where they refuse or neglect to implement judicial decisions. Public officials in charge of the implementation of judicial decisions may also be held individually liable in disciplinary, civil or criminal proceedings if they fail to implement them.
a. Member states should ensure that where administrative authorities are obliged to pay a sum of money, they comply with this obligation within a reasonable period of time.
b. Interest payable by an administrative authority, due to non-implementation of judicial decisions entailing an obligation to pay a sum of money, should be no less than interest payable by a private person to an administrative authority in a similar situation.
c. It should be ensured that the administrative authority has appropriate provision to avoid a situation whereby a lack of funds would prevent it meeting its obligation to pay a sum of money.
d. In the case of non‑implementation by administrative authorities of judicial decisions entailing an obligation to pay a sum of money, member states should also consider opening up the possibility to seize the property of the administrative authorities within the limits prescribed by law.
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EXPLANATORY MEMORANDUM
INTRODUCTION
1. The scope of administrative functions is determined by the objectives, priorities and values of a State, by the resources at disposal of the administration and by the efficiency of the administrative apparatus.
2. The range of administrative activities is expanding together with the increased tasks of a modern state, and the variety of such tasks may affect traditionally protected private rights. It thus becomes necessary to strike a fair balance in the relationship between administrative authorities and private persons, and to ensure that decisions both of administrative authorities and courts in the administrative field imposing obligations or granting rights to private persons are properly executed.
3. The legal contexts in which the administrative authorities operate in the member States differ in certain respects, depending on their legal nature. There are two main situations: some states have special codes regulating the activities of administrative authorities, supplemented by rules laid down in other codes, such as the code of civil procedure or laws on administrative procedure; other states regulate the activities of administrative authorities with the help of rules derived from general laws, the constitution, general legal principles or case law.
4. Generally speaking, member States are under the dual necessity of ensuring that their administrative authorities are subject to genuine judicial review, and that they can function effectively. In theory, two types of review are possible, though both normally coexist in practice: supervision of persons, with machinery to assess the liability - disciplinary or criminal - of public service staff, and supervision of actions.
5. The Recommendation is mainly concerned with the latter type of review, although it should be pointed out that unlawful actions can, in certain circumstances, involve criminal, disciplinary or civil liability of public service staff and, of course, the public service itself.
6. The Recommendation complements the existing framework of instruments adopted in the field of administrative law and justice. Its objective is not to unify European systems of execution, which are very different, but to indicate minimum common standards to be respected. It offers different options to member States, which they can implement in the light of their own legal systems.
7. Its purpose is, on the one hand, to guarantee that the administrative decisions to be implemented respect the rights of private persons and, on the other hand, to guarantee efficient administrative action and efficient implementation of court decisions.
BACKGROUND
8. Recommendation No. R (XX) XX is the result of work commenced in 2001 by the Project Group on Administrative Law (CJ-DA) under the aegis of the European Committee on Legal Co-operation (CDCJ). The CJ-DA received terms of reference from the Committee of Ministers to conduct an activity regarding the execution of decisions in the administrative field, including decisions by administrative authorities as well as decisions by courts in the administrative field. The object of this activity was to identify key issues, by conducting a survey of the situation in member States of the Council of Europe, and to consider the feasibility and usefulness of preparing an international instrument in this field, namely a draft Recommendation of the Committee of Ministers.
9. The Working party of the Project Group on Administrative Law (CJ-DA-GT), made up of one scientific expert (Mr Louis), governmental experts and independent experts (Prof. Fortsakis, Mr. Liebermann, Mr. Molinos Cobo, and Mr. Simons), approved a questionnaire addressed to the member and observer States of the Council of Europe, which provided a complete picture of the situation. On the basis of replies to the questionnaire, and of the draft report prepared by the scientific expert, the CJ-DA recognised the usefulness of preparing a draft Recommendation in this field.
10. The CJ-DA-GT held three, and the CJ-DA two, meetings on this topic in 2001 and 2002, and prepared a draft Recommendation of the Committee of Ministers on the execution of administrative and judicial decisions in the field of administrative law, which was approved by the CDCJ at its 78th meeting from 20 to 23 May 2003 and by the Committee of Ministers at its …th meeting on …
THE COMMITTEE OF MINISTERS RECOMMENDATION
11. The Committee of Ministers Recommendation to member States draws attention to an effective execution of administrative and judicial decisions in the field of administrative law as a fundamental factor in maintaining the trust of private persons in the administrative and judicial system.
12. In spite of the differences between the administrative and judicial systems of the member States, there is broad consensus concerning the fundamental principles which should guide administrative procedures and particularly the necessity to ensure fairness in the relations between private persons and the administrative authorities.
13. This is particularly true and important in those cases in which the law allows administrative authorities some degree of latitude and only sets the limits to that latitude, i.e. the administrative authorities are given a discretionary power.
14. Administrative decisions dealing with rights or interests of private persons must be effectively implemented within a reasonable time. Failure to do so must be subject to judicial and/or non-judicial review and may give rise to compensation in order to protect properly these rights and interests. At the same time, the immediate execution of administrative decisions which have been challenged or are about to be challenged may, in certain circumstances, prejudice the interests of persons irreparably. It would then be desirable, as is recalled in Recommendation No. (89) 8 of the Committee of Ministers to Member States on Provisional Court Protection in Administrative Matters, to guarantee individuals, where necessary, provisional protection by the courts, without disregarding the need for effective administrative action.
15. Decisions taken by the courts in the field of administrative law must be executed, in particular by the administrative authorities when they are addressed to them. The European Court of Human Rights has recognised that the execution of court decisions, within a reasonable period of time, has to be regarded as an integral part of the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights (see, for example, case Silva Pontes v. Portugal, decided on 23 March 1994, paragraph 33, cases Di Pede v. Italy and Zappia v. Italy, both decided on 26 September 1996, respectively paragraph 33 and paragraph 20)
16. This issue was also raised during the 24th Conference of the European Ministers of Justice, in Moscow, 4-5 October 2001. In Resolution No. 3 on "General approach and means of achieving effective enforcement of judicial decisions", the Ministers recognised the importance of ensuring the effectiveness of judicial decisions in the field of administrative law, and invited the Council of Europe to intervene to identify common standards and principles at a European level for the enforcement of court decisions.
17. In its substantive part, the Recommendation invites member States to ensure an effective execution of decisions of administrative and judicial authorities in the administrative field by following the principles of good practice contained in the appendix.
18. The principles set out in the appendix to the Recommendation are the outcome of detailed discussions and particularly examination of the current situation in this regard in the various member States.
19. The purpose of the appendix is to indicate some minimum standards to be respected with regard to execution of decisions in the administrative law field in the light of each member State’s own legal systems.
THE APPENDIX
20. The definition of the scope of the Recommendation proved somewhat difficult, in that the concepts relied on are variously defined in the member States, not all of which even contemplate the existence of some of these notions in their domestic law. Moreover, some countries use certain terms in an undifferentiated way. For the purposes of this activity, definitions are thus drawn from relevant instruments adopted by the Council of Europe in this field.
21. Administrative authorities can take decisions based either on their private or on their public capacity, and the scope of the notion of administrative decision itself may vary, from a definition limited to individual unilateral decisions taken within the exercise of public authority, to an extended definition open to decisions with general scope and to acts or decisions deriving from private capacity. The adoption of such an extended definition would, however, make it extremely difficult to derive from it any useful general principle or common standard and would in fact imply the extension of the Recommendation to a completely different set of cases, based on different rules and principles.
22. As far as the definition of “administrative decision” is concerned, it was thus decided to give to the term the meaning that was adopted, for instance, in Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities, that is, “any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal”, excluding from the definition general measures, normative acts and contracts.
23. For the purposes of this activity the English terms “implementation” and “enforcement” correspond respectively to the French terms “exécution” and “exécution forcée” in order to draw a clear distinction between voluntary and non-voluntary execution.
24. The notion of Law is, as in the European Convention on Human Rights, used in the meaning of a general and abstract normative act which prevails in domestic law. It is not necessarily meant as a legislative act enacted by the Parliament.
I. EXECUTION OF ADMINISTRATIVE DECISIONS REGARDING PRIVATE PERSONS
1. Implementation
25. Considering the characteristics of administrative decisions, a key feature with specific regard to implementation is the vocation of administrative decisions to modify the existing legal order. In general, and as a basic principle of administrative law, national administrative authorities have the right to note or modify the legal situation of private persons, on their own initiative and within the limits imposed by higher-ranking rules to which they are subject.
26. If administrative decisions impose obligations on private persons, the latter must implement the decisions only if they have been brought to their knowledge in accordance with the law. This implies that to be binding on individuals, these decisions must be adequately publicised; ways of doing this vary with the nature of the measure: this usually consists of publication for general decisions and notification for individual decisions.
27. Subject to the above-mentioned conditions, administrative decisions should be implemented by private persons voluntarily, notwithstanding the protection of their rights and interests.
28. The decisions of administrative authorities are open to appeal before a competent administrative authority or court. The effectiveness of this right depends:
- on whether or not they can have suspensive effects on enforceability of a decision;
- on whether or not such effects are automatic, i.e. triggered solely by lodging of the application;
29. In some legal systems, administrative decisions must be appealed to the authority concerned before they can be appealed to a court. Others make no provision whatsoever for administrative appeals, while others again do – but make them optional. Prior administrative appeals may also be optional in some cases, but compulsory in others according to the subject of the decision or the level of the authority taking it.
30. The principle that a private person should be able to request suspension of the enforceability of an administrative decision should be generally recognised particularly where the introduction of an appeal does not automatically entail such suspension. Most administrative decisions can be suspended, either by the bringing of a prior administrative appeal or by the bringing of an appeal before a court.
31. Such a principle has also been stated in Recommendation No. (89) 8 of the Committee of Ministers to Member States on Provisional Court Protection in Administrative Matters, which recognises, without disregarding the need for effective administrative action, the need to guarantee to the individuals, where necessary, provisional protection by the courts.
32. According to different national systems, suspension can either take place automatically or be conditional on the existence of a specific law to this effect or on the discretion of the administrative authority or of the court in this area. In some countries, the mere bringing of an appeal suspends the effects of the decision until all means of appeal have been exhausted; in other countries, the bringing of a prior administrative appeal suspends execution of the enforceability of a decision, but the bringing of a court appeal does not. In most cases, however, suspension must be expressly requested and is not the general rule.
33. The possibility of requesting a suspension should be exercised within reasonable time-limits and the request should be dealt with in the shortest possible time, in order to strike a balance between, on the one hand the protection of the rights of private persons and, on the other hand, the need to avoid blocking administrative authorities’ action.
34. In making a decision regarding suspension, administrative authorities should take into account all the interests at stake, including the interests of third persons and public interest. Depending on the national system, the judicial authority has to balance differing interests when making a decision. These interests may include public interest, but this is not the case in every state.
35. In some cases, enforceability of a decision cannot be delayed pending the outcome of an appeal, where for instance there is no possibility of suspension or an appeal is unforeseen. An appeal’s suspensive effect may be waived if, for instance, a public interest is at stake, or where serious reasons of general interest exist, or where the interests involved have first been considered and weighed. Suspension may also be limited to cases in which the alleged damage would be hard to repair or would involve a particularly serious criminal offence, or where the appeal decision would itself be difficult or impossible to execute, or to urgent cases.
2. Enforcement
36. Decisions made by administrative authorities may be generally enforceable, but this does not mean that they can necessarily give way to enforcement. Depending on the cases, intervention by a judge may be necessary to give administrative decisions legal force.
37. Some decisions are self-executing: a civil servant is appointed, a decision rescinded or annulled, a permission given, a public corporation established. Such decisions do not presuppose enforcement.
38. The concept of enforcement arises when an administrative authority is unable including by means of friendly settlement to induce an individual to do a certain thing, comply with an order or respect a prohibition.
39. In this situation, three solutions are conceivable to compel the individual concerned to act in a manner consistent with the law. The administrative authority can:
- act for him/her and discharge the obligation on his/her behalf,
- impose administrative sanctions on him/her,
- bring criminal proceedings against him/her.
40. The use of enforcement by administrative authorities requires the respect of some guarantees:
41. Legal basis: as a logical consequence of the general principle of lawfulness of administrative acts, enforcement should be expressly provided for by legislation, even if in general terms. This would not amount to requiring a specific legal basis for each means of enforcement. The normative density of basis in law may also vary according to the means of enforcement : it must be higher for the pronouncement of criminal sanctions than in cases where the administrative authority executes a decision instead of the person concerned. This formulation encompasses also those cases in which, as in the Common Law systems, enforcement requires a prior judicial decision.
42. Voluntary compliance within reasonable time-limits: in conformity with the idea that voluntary compliance should be the general rule, private persons should, as far as possible, be able to comply voluntarily with the enforcement decision, within a reasonable time limit.
43. Information to private persons setting out the reasons for the use of enforcement: where an administrative decision is being enforced, the procedures followed must respect this guarantee in order to ensure no irregularities occur when making the decision to enforce or that no irregularities occur in the procedures followed to secure enforcement.
44. Proportionality: proportionality between the enforcement measures, their cost and the goal to be achieved should be preserved in all circumstances, notwithstanding the possible use of different evaluation standards. The principle of proportionality also applies to possible monetary sanctions against the persons refusing voluntary implementation of the decision. A coercive fine should be set at an amount appropriate to induce compliance. Where the costs of compliance are small and the profits of non-compliance huge, this would entail setting the fine at a large amount.
45. In cases of urgency, some of these guarantees may not be applicable, or may be applicable to a lesser degree, without prejudice to the principle of proportionality which should in any case be respected. In this case, administrative authorities should justify the need for enforcement; the notion of urgency should itself determine the extent of the enforcement procedure and of the guarantees to be preserved. Thus, for instance, guarantees such as time limits for voluntary compliance and, in some cases, the requirement of preliminary information to the person concerned may not apply.
46. Judicial control of enforcement decisions should be made possible in order to protect the rights and interests of private persons. Generally, this is a posterior intervention, which aims at controlling or correcting the decision or means concerned or at protecting the rights and interests of private persons.
47. The Recommendation also foresees cases where administrative authorities, in the exercise of their discretionary power, choose not to use enforcement procedures even though the non-implemented decision protects the rights and interests of private persons other than those subject to the decision. The latter should then be able to apply to a judicial authority for a decision on appropriate measures to protect their rights and interests. In this context, the Recommendation does not prevent States from allowing third persons with a broader interest taking action.
II. EXECUTION OF JUDICIAL DECISIONS REGARDING ADMINISTRATIVE AUTHORITIES
48. The execution of court decisions regarding administrative authorities is a key issue in administrative law; whatever the extent of the courts’ intervention, the effectiveness of their decisions obviously depends very heavily on the existence of machinery to ensure their execution. The relevance of this theme is also stressed by the above-mentioned Resolution No. 3 adopted at the 24th Conference of European Ministers of Justice.
49. The mere fact of giving the courts substantial powers is not enough to guarantee effectiveness of their decisions; this is really only guaranteed if they have powers of their own, which enable them to ensure that their decisions are implemented in practice by the administrative authorities.
50. Decisions that can be taken against administrative authorities by the courts may be classified in several different ways. A distinction may be drawn on the basis of their contents which would include: annulment decisions, declaratory decisions, condemnation decisions and decisions by which the judge directly modifies the judicial situation of individuals on behalf of the administrative decision.
51. An alternative distinction may be based on the consequences of the decision concerned, between annulment decisions that oblige the administrative authority to reconsider the case and to take a new decision, and decisions imposing pecuniary sanctions or material activities.
52. A further distinction may then be drawn between annulment decisions concerning acts adversely affecting private persons and acts adversely affecting administrative authorities. In the first case, an annulment decision is sufficient to restore a judicial situation in accordance with the judicial decision. In the second case, and especially where courts cannot make a decision instead of administrative authorities, the latter should draw from the annulment decision all appropriate consequences, for instance take a new decision in conformity with the judicial decision.
53. For the purposes of the Recommendation, the only distinction retained is the one concerning decisions imposing pecuniary sanctions, for it calls for specific remarks.
1. General provisions
54. The Recommendation first sets out the principle according to which administrative authorities should implement judicial decisions voluntarily and take all necessary measures in order to allow the courts to exercise an effective protection of the rights of private parties. In cases where judicial authorities quash an administrative decision, this principle implies not only the removal of the decision, but also a “positive” action by the administrative authorities aimed at providing concrete judicial protection for the persons concerned by the decision.
55. If the administrative authorities do not comply, an appropriate procedure should be put in place so as to allow private persons who benefit from the judicial decision to seek its execution. In this context, the Recommendation mentions the procedures of injunction and coercive fine, but these are only examples. Other procedures may exist and, in any case, competent bodies should have discretionary powers with regard to the means to ensure enforcement.
56. As a minimum common standard, the Recommendation recognises the right for private persons to initiate proceedings and to seek a sanction in case of non-execution of a decision favourable to them. The way in which judicial decisions are enforced is not defined further in the appendix to the Recommendation, since it may depend on too many different parameters, such as the type of decision, the procedures adopted, etc.
57. The effectiveness of court decisions depends on the courts power to compel administrative authorities - or private individuals - to comply with them. They can do this in different ways, for instance by acting for the defaulting authority, when this is possible, or by imposing on it monetary sanctions or material activities as a consequence of non-execution or for delays in executing decisions.
58. Another way of securing compliance with court decisions relies on a system for establishing the disciplinary, civil or criminal liability of public officials. Finally, “positive” measures should be provided for in order to stimulate the execution instead of “negative” measures such as sanctions against inaction.
2. Execution of decisions entailing an obligation to pay a sum of money
59. If an administrative authority is condemned to the payment of a pecuniary sanction, the obligation should be complied with within a reasonable period of time. Depending on the member State, the procedure used to compel administrative authorities to pay may be special and complex or, on the contrary, identical to that which applies between private individuals.
60. Once a court has imposed a sum of money, interest may also be payable. In such cases, the nature of the debtor – private person or administrative authority – should not have negative consequences for the private person.
61. It should also be possible to foresee the provision of budgetary instruments, including ad hoc instruments, in order to ensure the payment of sums of money. Such a provision is coherent with the general objective of ensuring effective compensation within reasonable time limits. This principle is also the basis of Recommendation No. R(84)15 of the Committee of Ministers relating to public liability, in which member States are recommended to examine the advisability of setting up in their internal order appropriate machinery for preventing obligations of public authorities in the field of public liability from being unsatisfied through lack of funds.
62. The possibility of enforcing claims against the State and seizing private property of the administrative authorities must not, generally speaking, be excluded, in so far as it is not contrary to public interest and in so far as such a solution is not prohibited by the special legal status of public assets and property.