CM(2004)106 revised1 18 June 2004
890 Meeting, 30 June 2004
10 Legal questions
10.3 European Committee on legal co-operation (CDCJ) -
a. Abridged report of the 79th meeting (Strasbourg, 11-14 May 2004) 2
b. Draft Recommendation Rec(2004)… of the Committee of Ministers to member states on judicial review of administrative acts
1. The European Committee on Legal Co-operation (CDCJ) met in Strasbourg from 11 to 14 May 2004. The Agenda appears in Appendix I to the present document.
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR DECISION
2. The CDCJ invited the Committee of Ministers:
a. to adopt the text of the draft Recommendation on the judicial review of administrative acts and to take note of its explanatory memorandum (see item 4 of the agenda and Appendix II to this report);
b. to approve the text of the draft specific terms of reference of the Project Group on administrative law (CJ-DA) (see item 10b on the agenda and Appendix III to this report);
c. to approve the text of the draft specific terms of reference of the Committee of Experts on family law (CJ-FA) (see item 10c of the agenda and Appendix IV to this report);
d. to authorise the publication of the “White Paper” on the principles concerning the legal consequences of parentage, with the Foreword, as approved by the CDCJ (see item 11c of the agenda and Appendix V to this report).
ITEMS SUBMITTED TO THE COMMITTEE OF MINISTERS FOR INFORMATION
3. The CDCJ invited the Committee of Ministers to note:
a. the adoption by the CDCJ of the guiding principles for the Protection of Personal Data with regard to Smart Cards (see item 5 of the agenda);
b. the approval by the CDCJ of the Final Activity Report of the Working Party on Adoption of the Committee of Experts on Family Law (CJ-FA-GT1), noting to this end the importance the CDCJ attaches to the activity in the field of family law and also the considerable progress in the work undertaken by the two working parties on adoption and succession respectively (CJ-FA-GT1 and CJ-FA-GT2) (see item 6 of the agenda);
c. the adoption by the CDCJ of the Final Activity Report of the Group of Specialists on Identity and Terrorism (CJ-S-IT). The CDCJ considered the follow-up to this report as an important task and expressed its willingness and readiness to continue the activities in this field, subject to the decision of the Committee of Ministers, noting the successful use of the multidisciplinary approach in preparing this Report (see item 8c of the agenda);
d. the adoption of the Plan of Action of the CDCJ concerning the accomplishment of the ad hoc terms of reference on the drafting of a “list of good practices relating to the movement of persons between Council of Europe Member States” and the drafting of an Opinion by the CDCJ on Parliamentary Assembly Recommendation 1648 (2004) on the “consequences of European Union enlargement for freedom of movement between Council of Europe member States” (see item 11e of the agenda and Appendix VI to this report);
e. the prolongation by the CDCJ of an observer status to the CDCJ of the Council of the Bars and Law Societies of the European Union (CCBE) for the term of 3 years with the possibility of renewing this status once the indicated term elapses (see item 13b of the agenda).
4. The CDCJ considered:
a. the preparation of the 26th Conference of European Ministers of Justice (Helsinki, Finland, 7-8 April 2005) (see item 9aii of the agenda);
b. the information on the current situation relating to the Group of Specialists on Judicial Standards (CJ-S-JU) noting the importance of this activity. The CDCJ expressed the view that it is premature at this stage for this group to start working. The draft terms of reference of the CJ-S-JU need to be modified with a view to updating the topic, in accordance with the work undertaken by the CCJE and the CEPEJ. The CDCJ noted that the final decision will be taken at the next plenary meeting in 2005 (see item 8aii of the agenda);
c. the request by the Secretariat of the Multilateral Committee on the European Agreement on the Transmission of Applications for Legal Aid (T-TA) and entrusted its Bureau with approving the application form to be used for the European Agreement (CETS 092) and its Additional Protocol (CETS 179) in the light of the progress on this item within the European Commission (see item 8bii of the agenda);
d. the opinion of the Legal Advice and Treaty Office of the Council of Europe, prepared at the request of the CDCJ Bureau, on the possibility for the Consultative Committee of the Convention for the Protection of Individuals with regards to Automatic Processing of Personal Data (T-PD) as a conventional committee to draft legal instruments and the role that the CDCJ could play in this regard. The CDCJ noted that at present, according to its terms of reference, the CDCJ has the responsibility for adoption of instruments in the field of data protection. Having in mind that not all member States are parties to the Convention on Data Protection, the CDCJ is of the opinion that further consideration of this issue would be necessary by the Committee of Ministers and the T-PD in its new function with a view to finding the most appropriate procedure of coordination between the T-PD and the CDCJ, including the participation of the CDCJ where the T-PD might be drafting new instruments addressed to all member States (see item 8bi of the agenda);
e. the information concerning the work of the Working Party on Adoption of the Committee of Experts on Family Law (CJ-FA-GT1). The drafting of the new Convention on the adoption of children would take into account the final report prepared by the CJ-FA-GT1 and the submissions made by the member States. The CDCJ also reminded and encouraged the member States to respond to the questionnaire on succession addressed to them by the Working Party on Succession of the Committee of Experts on Family Law (CJ-FA-GT2) (see items 10c and 11c of the agenda);
f. the information concerning the follow-up to the European Convention on Information and Legal Co-operation Concerning “Information Society Services” (CETS 180) namely its ratification by the European Community by which it will act with exclusive competence on behalf of its 25 member States. The CDCJ decided to address the member States of the Council of Europe, that are not members of the European Union and that have not yet signed and/or ratified the convention, with the request to indicate in writing by 15 September 2004 at the latest whether they intend to sign and ratify the Convention CETS 180 (see item 12 of the agenda);
g. the draft questionnaire on access to genetic information on questions not related to health. The CDCJ instructed the Secretariat to send the questionnaire to the member States with a view to obtaining answers during the subsequent 4 months at the latest (see item 11c of the agenda);
h. the issue of civil liability in Europe, in the light of the Report of experts. The CDCJ decided to limit itself to the particular issue of medical professionals' liability in order to provide the CDCJ with a better platform for proper consideration of this question on future possible activity at the next plenary in 2005 (see item 11b of the agenda);
i. the proposal by German delegation “On future work of the CDCJ concerning NGOs” and noted that time is not yet ripe for embarking upon the work on a particular instrument. The CDCJ could return to this matter, in view of the results of the current study of the Council of Europe of the implementation of the Fundamental Principles on the Status of non-governmental organisations in the member States (see item 11d of the agenda).
5. The CDCJ took note of:
a. the information provided by the Secretariat concerning priorities of the Council of Europe for 2004-2005 in the light in particular of the 3rd Summit of the Council of Europe and of the suggestion to hold the 2005 plenary meeting of the CDCJ in February/March (see item 3 of the agenda);
b. the list of decisions of direct interest to the CDCJ taken by the Committee of Ministers (see item 7 of the agenda);
c. the work of its subordinate committees (the Committee of experts on nationality (CJ-NA), the Working Party on Adoption and the Working Party on Succession of the Committee of experts on family law (CJ-FA), the Project Group on administrative law (CJ-DA) and the Group of specialists on identity and terrorism issues (CJ-S-IT)) (see item 10a of the agenda);
d. the Report of the Committee of Experts on Terrorism (CODEXTER) (see item 8c of the agenda);
e. the invitation of Armenia to hold the 27th Conference of European Ministers of Justice in Yerevan in 2006. To this end the Azerbaijani delegation indicated that their Minister would not be able to participate if this Conference were held in Armenia owing to the absence of diplomatic relations due to the existing situation between the two States. The CDCJ noted that the matter would be brought to the attention of the Committee of Ministers (see item 9iii of the agenda);
f. the Report of the European Commission on the Efficiency of Justice (CEPEJ) (see item 8d of the agenda);
g. the information concerning the work of the European Forum for Children and the report of its representative to the Forum Mr. Werner SCHÜTZ;
h. the information concerning the work of Ad-Hoc inter-sectoral group on e-governance. To this end the CDCJ would like to emphasise its readiness to contribute to the work of this group (see item 8e of the agenda);
i. the information on preparations for the 200th Anniversary of the French Civil Code – “Civil Code and Europe: Influences and Modernity”, Strasbourg, 21-22 October 2004 (see item 9bi of the agenda);
j. the information on the preparation of the 3rd Conference on Nationality – “Nationality and the child”, Strasbourg, 11-12 October 2004 (see item 9bii of the agenda);
k. the information provided by the Secretariat concerning the adoption by the Committee of Ministers of the terms of reference of the Committee of Experts on Nationality (CJ-NA) (see item 10a of the agenda).
6. The CDCJ elected unanimously Mr Inge Lorange BACKER (Norway) as Chair for one year and Mr Jacques JANSEN (Netherlands) as Vice-Chair for one year. It also elected Mr Petar RASHKOV (Bulgaria) as a member of its Bureau for two years (see item 15 of the agenda).
7. The CDCJ decided to entrust the Bureau to make a final decision to hold its next meeting during one the weeks beginning on 23 or 30 May 2005 or 6 June 2005 (see items 17 and 18 of the agenda).
8. Finally the CDCJ invited the Committee of Ministers to take note of this report as a whole.
1) Opening of the meeting
2) Adoption of the agenda
3) Statement by the Secretariat (information item)
4) Approval of the draft Recommendation on the judicial review of administrative actions
5) Approval of the draft guiding principles for the Protection of Personal Data with regard to the use of Smart Cards
6) Adoption of the final report of the CJ-FA-GT1, containing proposal for revision of the European Convention on the Adoption of Children [CETS No. 058]
II. ACTIVITIES CONCERNING THE CDCJ
7) Decisions of the Committee of Ministers concerning the CDCJ (Information item)
8) State of work of the committees of the CDCJ and work of Convention committees and other committees of direct interest to the CDCJ
a) Committees of experts
b) Convention committees
c) Committees working in the field of action against terrorism
d) European Commission on the Efficiency of Justice (CEPEJ)
e) Involvement of the CDCJ in drafting of the Recommendation on e-governance, especially on questions of data protection and administrative law
f) Involvement of the CDCJ in the work of the Forum for Children and Families
9) Conferences and Colloquies in the legal field
a) Conference of the European Ministers of Justice
b) Other Conferences and Colloquies
10) Adoption of the revised terms of reference of certain subordinate committees
a) Information on Adoption by the Committee of Ministers of the Specific Terms of Reference of the Committee of Experts on Nationality (CJ-NA) for 2004-2005
b) Information on adoption by the CJ-DA and the CDCJ Bureau of the Draft Specific Terms of Reference of the CJ-DA for 2005 with a view to approving it by the CDCJ and to presenting it to the Committee of Ministers for final adoption
c) The request of the Working Party on Adoption (CJ-FA-GT1) and the Working Party on Succession (CJ-FA-GT2) of the Committee of Experts on Family Law (CJ-FA) to invite the Committee of Ministers to amend and extend the Specific Terms of reference of the CJ-FA
11) Proposals for future activities
a) Follow-up to the work of the CDCJ in the field of fight against terrorism
b) Civil liability in Europe
c) Follow-up to the principles concerning the establishment of legal consequences of parentage
d) Consideration of proposal submitted by Germany “On future work of the CDCJ concerning NGOs”
e) Freedom of movement
12) Conventions and/or Recommendations
13) Working methods of the CDCJ and its Bureau
a) General matters
14) Consideration of the acquis of the CDCJ (Treaties)
15) Elections and appointments
16) Bureau of the CDCJ
a) Work carried out by the Bureau
b) Tasks to be given to the Bureau of the CDCJ
17) Draft Agenda of the 80th Plenary Meeting of the CDCJ (2005)
18) Calendar of future meetings
III. OTHER MATTERS
19) Legal work carried out outside the CDCJ (information item)
a) Within the Council of Europe
b) Outside the Council of Europe
20) Any other business
Draft Recommendation Rec(2004)…
of the Committee of Ministers to member states
on judicial review of administrative acts
(Adopted by the Committee of Ministers on … 2004
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;
Recalling Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” and the relevant case-law on administrative disputes of the European Court of Human Rights;
Considering that effective judicial review of administrative acts to protect the rights and interests of individuals is an essential element of the system of protection of human rights;
Having in mind that a balance should be struck between the legitimate interests of all parties with a view to providing for the procedure without delay and for efficient and effective public administration;
Taking into account the results of the monitoring of member states' observance of their commitments on the subject of “functioning of the judicial system” and of the decision taken by the Ministers' Deputies at their 693rd meeting on 12 January 2000 on the possibility and scope of judicial review of administrative decisions;
In the light of the conclusions of the First Conference of the Presidents of Supreme Administrative Courts in Europe, which had as its theme “The possibility and scope of the judicial control of administrative decisions in member states”, which took place in Strasbourg on 7 and 8 October 2002;
Taking into account the legal instruments of the Council of Europe in the field of administrative law, and in particular Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities;
Bearing in mind Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
Recalling Recommendation No. R (2003) 16 on execution of administrative and judicial decisions in the field of administrative law;
Seeking to strengthen the rule of law and human rights, which are fundamental values of the legal systems of Council of Europe member states;
Seeking to ensure effective access to judicial review of administrative acts;
Convinced that other methods of control of administrative acts, which may include internal appeal to the administrative authorities and control by the ombudsman institution as well as appeal to alternatives to litigation, set out in Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties, are useful for improving the functioning of jurisdictions and for the effective protection of everyone's rights,
Recommends that the governments of member states apply, in their national legal system and in practice, the principles set out below:
For the purposes of this recommendation,
1. By “administrative acts” are meant:
a. legal acts – both individual and normative – and physical acts of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons;
b. situations of refusal to act or an omission to do so in cases where the administrative authority is under an obligation to implement a procedure following a request.
2. By “judicial review” is meant the examination and determination by a tribunal of the lawfulness of an administrative act and the adoption of appropriate measures, with the exception of review by a constitutional court.
1. The scope of judicial review
a. All administrative acts should be subject to judicial review. Such review may be direct or by way of exception.
b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power.
2. Access to judicial review
a. Judicial review should be available at least to natural and legal persons in respect of administrative acts that directly affect their rights or interests. Member states are encouraged to examine whether access to judicial review should not also be opened to associations or other persons and bodies empowered to protect collective or community interests.
b. Natural and legal persons may be required to exhaust remedies provided by national law before having recourse to judicial review. The length of the procedure for seeking such remedies should not be excessive.
c. Natural and legal persons should be allowed a reasonable period of time in which to commence judicial review proceedings.
d. The cost of access to judicial review should not be such as to discourage applications. Legal aid should be available to persons lacking the necessary financial resources where the interests of justice require it.
3. An independent and impartial tribunal
a. Judicial review should be conducted by a tribunal established by law whose independence and impartiality are guaranteed in accordance with the terms of Recommendation No. R (94) 12.
b. The tribunal may be an administrative tribunal or part of the ordinary court system.
4. The right to a fair hearing
a. The time within which the tribunal takes its decision should be reasonable in the light of the complexity of each case.
b. There should be equality of arms between the parties to the proceedings. Each party should be given an opportunity to present his or her case without being placed at a disadvantage.
c. Unless national law provides for exceptions in important cases, the administrative authority should make available to the tribunal the documents and information relevant to the case.
d. The proceedings should be adversarial in nature. All evidence admitted by the tribunal should in principle be made available to the parties with a view to adversarial argument.
e. The tribunal should be in a position to examine all of the legal and factual issues relevant to the case presented by the parties.
f. The proceedings should be public, other than in exceptional circumstances.
g. Judgment should be pronounced in public.
h. Reasons should be given for the judgment. Tribunals should indicate with sufficient clarity the grounds on which they base their decisions. Although it is not necessary for a tribunal to deal with every point raised in argument, a submission that would, if accepted, be decisive for the outcome of the case requires a specific and express response.
i. The decision of the tribunal that reviews an administrative act should, at least in important cases, be subject to appeal to a higher tribunal, unless the case is directly referred to a higher tribunal in accordance with the national legislation.
5. The effectiveness of judicial review
a. If a tribunal finds that an administrative act is unlawful, it should have the powers necessary to redress the situation so that it is in accordance with the law. In particular, it should be competent at least to quash the administrative decision and if necessary to refer the case back to the administrative authority to take a new decision that complies with the judgment. It should also be competent to require of the administrative authority, where appropriate, the performance of a duty.
b. The tribunal should also have jurisdiction to award costs of the proceedings and compensation in appropriate cases.
c. The necessary powers to ensure effective execution of the tribunal's judgment should be available in accordance with Recommendation No. R (2003) 16.
d. The tribunal should be competent to grant provisional measures of protection pending the outcome of the proceedings.
1. The rule of law is inconceivable without access for all citizens to an independent, impartial tribunal established by law and capable of meeting the requirements of a fair trial. This is particularly important where the possibility of challenging administrative acts is concerned because such measures or decisions are taken in the exercise of public authority and often directly affect the rights and freedoms secured under the European Convention on Human Rights (hereafter ECHR). Given the specific nature of administrative acts, the member States of the Council of Europe should ensure that their judicial organisation and control procedures are in line with the requirements of the ECHR in order to guarantee the effectiveness of the control of administrative acts.
2. Nevertheless, at a time when the expansion of the public sector in the member States and the effects of such expansion on people's lives are highlighting the need for special new arrangements, the States remain free to define the framework and procedure for supervising administrative acts. However, given that the lack of a judicial remedy against administrative acts might be interpreted as a denial of justice, member States are required to guarantee the reality and efficacy of the control of such acts.
3. For these reasons, and in the light of the results of the procedure for monitoring the honouring of commitments entered into by member States on the theme of “functioning of the judicial system”, which showed that some member States had structural problems linked to the absence of judicial review of administrative acts, the Committee of Ministers, on a motion from the European Committee on Legal Co-operation (CDCJ), entrusted the Project Group on Administrative Law (CJ-DA) with the task of formulating an appropriate instrument on the judicial review of administrative acts.
4. On 7 and 8 October 2002, the Council of Europe organised a Conference of Presidents of Supreme Administrative Courts in Europe in order to secure a preliminary assessment of the problems arising out of the judicial control of the Administration. At the close of this Conference the participants adopted conclusions in which they proclaimed their support for the work assigned to the CJ-DA by the Committee of Ministers and came down in favour of continuing to study the issue of judicial review of administrative acts.
5. This Conference debated the optimum ways and means of ensuring effective control of administrative acts in the light of the case-law of the European Court of Human Rights (hereafter European Court). It recalled that the ECHR had not originally been intended to apply to administrative proceedings, but that the European Court's case-law had partly remedied this situation. The CJ-DA took account of the proceedings of the conference during its discussions on the content of the present Recommendation, and the explanatory memorandum is largely based on them.
II. General considerations
6. The Recommendation on the judicial review of administrative acts is aimed at establishing the principles governing judicial review of administrative acts in a State governed by the Rule of Law. It should be noted that in all States governed by the rule of law the Administration is subject to the law and supervision by the courts on the same basis as any individual and any citizen, in accordance with the principle of the pre-eminence of law. The Recommendation strives to present pointers for the desirable future development of administrative justice, while taking account of the disparities between administrative and judicial systems in the various member States. It attempts to avoid any traditional conception of judicial review of administrative acts, i.e. acts adopted by the authorities having consequences for the rights and interests of citizens. Its main aim is to ensure effective access to judicial review, thus helping to consolidate the rule of law and human rights in Europe.
7. The Recommendation draws on the principle that all administrative acts must be subject to judicial review. This requirement would in this way also be respected with regard to the acts and procedures which are not covered by the relevant provisions of the ECHR, in particular Article 6.1. As was emphasised by the Conference of Presidents of Supreme Administrative Courts in connection with the lawfulness of administrative acts, this obligation results from both their nature and their effects. By nature they are a prime means of action for the Administration on behalf of the public authorities, and members of the community are required to execute and implement them. On the other hand, the principles of democracy require the addressees of the acts to be able to enlist the services of a judge to verify their lawfulness, in formal and substantive terms. In terms of their effects, these acts may violate the rights and freedoms secured under national legislation and various international instruments. For instance, Article 13 of the ECHR states that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.
8. The Recommendation sets out five groups of principles which are to be applied by the governments of member States. These principles concern the scope of judicial review, access thereto, the independence and impartiality of the courts, the right to a fair trial and the effectiveness of judicial review. It was decided to define the basic concepts used in the Recommendation, namely “administrative act” and “judicial review”, in order to clarify the ambit of the principles and recommendations, which relate both to the national legal systems and to actual practice.
9. With a view to guaranteeing constant respect for Article 6 of the ECHR in administrative matters, this recommendation supplements the legal instruments adopted with reference to civil and criminal proceedings.
10. Taking account of the variety of legal traditions in member States in the field of administrative proceedings, the Recommendation sets out the general rules to be observed in organising the judicial review of administrative acts, without attempting to achieve complete harmonisation of the relevant legislation.
A. Comments on the definitions
11. The definitions adopted for the purposes of the Recommendation were drawn up on the basis of a functional criterion aimed at delimiting the scope of the text. This involves, firstly, protecting the rights and interests of citizens in respect of a wide range of acts adopted by the Administration vis-à-vis the constantly expanding area of administrative activity in parallel to the increasing scope of State intervention, and secondly, guaranteeing the powers of the Administration. Consequently, the definitions adopted are not identical to those of similar concepts set out in other Council of Europe instruments.
1. Administrative acts
12. The administrative acts covered by the Recommendation are broadly defined in order to ensure judicial review of all administrative activities by the Administration. The definition of administrative acts does not include acts having a purely private law character and acts or proceedings of the Parliament in its legislative function. While the concept of administrative decision (acte administratif) has very specific connotations in some legal systems, the concept of administrative act (acte de l'administration) covers a wider area of activities conducted by administrations.
13. The Recommendation does not prevent States from defining very limited exceptions established by law, for example certain acts in the field of foreign affairs, international agreements, defence or national security.
14. The definition of administrative act adopted by the Recommendation embraces several possible actions by the public administration. It comprises individual administrative acts constituting decisions taken by the Administration in respect of specific individuals. It also covers prescriptive acts and statutory acts accompanied by general, non-personal regulations addressed to an unspecified number of persons. It further includes material actions which will have consequences in terms of the legal regulations governing natural or legal persons, on the understanding that changes to the legal situation entail creating both rights and obligations.
15. Lastly, the definition also covers situations of refusal or failure to act on the part of the public administration in cases where there is an obligation for the administrative authority to act. The Recommendation considers that the concept of administrative act also covers cases where the Administration fails to respond to a request or where it explicitly or implicitly refuses to adopt a given decision or act. The tribunal should be empowered to act in both these situations.
16. Under no circumstances may a citizen's interests be harmed by the administration's remaining silent. After a certain time prescribed by law, this silence should open access to a tribunal. In such cases the administrative authority will be required to explain to the tribunal its reasons for refusing the applicant's request. If the authority fails to give grounds, the tribunal shall hold its act to be unlawful.
17. The Recommendation applies only to such administrative acts as have been implemented by the Administration in the exercise of public authority. Such authority allows the Administration to impose obligations, issue acts and confer rights. These acts have the effect of changing the legal and factual situation of the persons concerned, depending on the scope of the act. The Recommendation specifically targets administrative acts which infringe the rights or interests of natural or legal persons. Private acts lie outside the ambit of the text.
2. Judicial review
18. The concept of judicial review covers different ideas in different countries. As mentioned at the Conference of Presidents of Supreme Administrative Courts, experience shows that the rule of law and the subjection of the public authority to law and the courts are not self-evident, and that there is a constant temptation to exempt administrative acts from legal rules and control by the courts. It is therefore vital to ensure that administrative acts can be controlled and set aside - or rebutted by exceptional remedy - if they prove unlawful.
19. The Recommendation is aimed at guaranteeing the right of everyone, in accordance with the ECHR, to a fair hearing by an independent and impartial tribunal also in administrative cases. This principle of a fundamental right to a tribunal is inherent in the rule of law, and it is imperative for the States having ratified the ECHR to respect it. Both the Statute of the Council of Europe and the Preamble to the ECHR stress the rule of law and genuine democracy. These two principles therefore involve judicial review of administrative acts, if only in order to mitigate the inequality of arms between the administration and the citizen.
20. The concept of judicial review adopted in this recommendation is broader than that consisting in merely examining the lawfulness of an act; it also encompasses the tribunal's power to annul an act following its review or to award compensation. The administrative court's role is to protect individuals by means of the law.
21. Therefore, the tribunal must be empowered to instigate proceedings to verify the lawfulness of administrative acts, including administrative silence or failure to act, and to draw the requisite conclusions from its findings.
22. The concept of lawfulness of an administrative act is broadly construed: it concerns infringements of interests which, by law, are worthy of protection. Infringing a protected interest accordingly amounts to breaking the law.
23. Judicial review is an objective activity which can be initiated at the request of an individual or of another body, particularly a public body. One of the functions of judicial review is the protection of the individual vis-à-vis the administration. However, such control is also geared to safeguarding and clarifying the administration's powers.
24. The subjects of judicial review comprise all the types of administrative act covered by the definition of such acts.
25. The Recommendation does not apply in cases where, in accordance with national legislation, the constitutional court exercises the review. In a number of countries review of certain normative administrative acts is entrusted to the constitutional court. In such cases, a specific procedure is followed, different to that before an administrative tribunal or ordinary court. This is why review of administrative acts by a constitutional court does not fall within the scope of the Recommendation. This does not affect the requirement of compliance with Article 6 of the ECHR.
B. Comments on principles
26. The field of administrative proceedings varies widely in the different member states' legal systems. This fact has highlighted the need to specify the general principles applicable to administrative proceedings in order to prevent Article 6 of the ECHR from being implemented in different ways in different countries.
27. It is true that the ECHR was not originally intended to apply to the administrative field. However, as early as 1971, the European Court stated the following in its Ringeisen judgment: “to be applicable to a case (“contestation”) it is not necessary that both parties to the proceedings should be private persons (…). The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc) and that of the authority which is invested with competence in the matter (ordinary court, administrative body, etc) are therefore of little consequence”.
28. Taking account of the specific nature of judicial review of administrative acts, this part of the Recommendation lists the principles applicable to the exercise of such review, including those set out in the ECHR.
1. The scope of judicial review
29. This principle mainly concerns the subject of judicial review, viz administrative acts as defined in this Recommendation. Review may take two forms. It is direct when it deals with the act contested before the court. It is by way of exception when, in proceedings concerned with an act, the tribunal reviews another act connected with it (for instance, when the tribunal reviews the lawfulness of the normative act on which the decision challenged is based). It should be noted that if an administrative act cannot be referred direct to a tribunal (as is the case with normative acts in several legal systems), the state should ensure that the act can be reviewed by way of exception.
30. With regard to administrative acts involving exercise of a discretionary power, although such a power is, in principle, exempt from judicial review, the tribunal may seek to determine whether the administration has overstepped permitted limits in the use of its discretionary power or whether it has committed manifest errors.
31. Administrative sanctions are deemed equivalent to administrative acts and therefore subject to judicial review.
32. This principle contains, firstly, a general assertion that the courts should be able to review any violation of the law and, secondly, examples of grounds for invalidating an act.
33. The arguments on which the applicants can base their complaints embrace violation of the law, including lack of competence, procedural flaws and abuse of authority. Violation of the law may take the form of a lack of legal basis, a direct violation of a legal standard or a legal error, in which latter case the administration has misjudged the scope of a rule. Lack of competence may stem from spatiotemporal considerations or the subject of the decision. Procedural flaws include such irregularities as a failure to conduct compulsory consultation. Lastly, abuse of power refers mainly to cases where an authority uses a power vested in it by law, but for another purpose than that provided for by law. The Recommendation draws a distinction at this point between formal violations and those arising out of lack of competence, on the one hand, and those involving misapplication, misinterpretation or ignorance of the law, on the other.
34. The function of the tribunal adjudicating in administrative proceedings is fundamentally different from that of civil and criminal courts because of the subject of the review. The issues to be addressed by administrative tribunals have already been the subject of a lawful or unlawful decision on by an authority hypothetically so empowered by law. It is therefore unnecessary, in principle, for the judicial decision to deal directly with the questions that originated the dispute. The tribunal's primary function is to review the lawfulness of the decision taken by the administration in the exercise of its attributions. However, the legal systems of some member States do empower the administrative tribunal to examine the substance of cases involving individual acts, and to pronounce both on the merits and the appropriateness of the administrative act and to replace the administration's decision with a fresh ruling.
2. Access to judicial review
35. The Recommendation does not specify how judicial review should be organised. The States are free to organise judicial review in administrative cases in accordance with their specific legal tradition and culture: by specialised administrative tribunals, by the ordinary courts or by a combination of both.
36. This principle defines capacity to bring court proceedings. Natural and legal persons can obtain judicial review of administrative acts that infringe any of their rights or interests worthy of protection.
37. In order to protect collective or community interests that have been jeopardised by an administrative act, the Recommendation encourages the member states to take into consideration the possibility of granting associations or other persons or bodies empowered to protect these interests the capacity to bring proceedings before a court. The reference is to administrative decisions which adversely affect not just one individual but also those which affect any community. Such decisions, which might relate, for instance, to the environment or consumers' rights, could be eligible for judicial review without the direct interests of any particular individual being at issue.
38. Each state is entitled to extend the capacity to bring court proceedings. This remedy may for example be available to third parties concerned by the act.
39. The Recommendation applies solely to cases where rights or interests are directly affected. This means that there must be a close link between the act and the rights or interests concerned. If the link between the challenged act and the right asserted is too tenuous and distant, the Recommendation does not apply (Balmer-Schafroth judgment, 1997). Such acts must therefore adversely affect the applicant and have the effect of altering his/her legal situation. This precludes certain categories of administrative acts from a judicial remedy, such as preliminary measures. It is for national law to give practical definition to the rights or interests protected under this Recommendation.
40. The Recommendation does not preclude states from adopting procedures for the early disposal of judicial review claims which are weak, brought by persons who do not have a sufficient interest in the administrative act in question, or otherwise undeserving of full consideration. Thus applicants for judicial review may be required to apply to the tribunal for permission to proceed with their claims, or may be required to show that they have an arguable case in a preliminary procedure.
41. This principle stipulates the conditions of access to judicial review.
42. Natural and legal persons have access to a number of preliminary channels for settling the dispute before reaching the judicial review stage. The Recommendation states that the applicant may have to exhaust all internal remedies with the administration in order to gain access to judicial review.
43. The right of access to judicial review must be an effective right. The Recommendation seeks to ensure that the obligation for natural and legal persons to exhaust other remedies first does not prevent them from seeking judicial review of the administrative act.
44. It specifies that the time needed to deal with the case must be reasonable even during the preliminary procedure, as from the taking of the initial act. It is true that the safeguards laid down by Article 6 of the ECHR have, in principle, only to be respected at the judicial proceedings stage. However, according to the case-law of the European Court, the reasonableness of the length of proceedings conducted before one or more administrative bodies partly depends on the length of any preliminary proceedings before an administrative body, where such an administrative procedure exists as a remedy which must be exhausted before the case can be brought before the courts. The period to be taken into account can therefore begin as soon as an administrative appeal is lodged with an administrative appeal body (König judgment, 1978).
45. Exhaustion of other remedies before seeking judicial review makes it possible to prevent an excessive workload for the ordinary courts with a view to judicial efficiency. This is in the interests of both the judiciary and the administration and may also contribute to reducing the cost of the procedure for the individual.
46. This provision aims to guarantee that parties are allowed a reasonable time for bringing the matter before the courts. If the time-limit is too short, the parties may be unable to lodge an appeal against an administrative act.
47. States are accordingly required to set a reasonable time-limit for challenging the lawfulness or legitimacy of an administrative act before a tribunal, in order to guarantee the applicant effective access to judicial review. National legislation generally specifies the reasonable time.3 In certain justified circumstances this period may be extended.
48. The Recommendation makes no reference to the concept of taking cognisance of the act, but time naturally begins running from when the natural or legal person is deemed to have cognisance of the act's notification. The Recommendation does not specify any fixed period between the time of formal or implicit notification of the act and the application for judicial review, rather leaving this matter to the states' discretion.
49. In order to make judicial review widely accessible to natural and legal persons, the cost of proceedings must not constitute a deterrent to judicial action. The point at issue here is the cost of access to judicial review, rather than merely the cost of judicial review itself.
50. This effective access condition implies a right to legal assistance to guarantee access to court for applicants who cannot afford to pay the costs where the interests of justice require, whatever the judicial body competent to adjudicate in cases involving the Administration.
3. An independent and impartial tribunal
51. This principle confirms that settlement of an administrative dispute is a matter for a tribunal established by law, in accordance with the requirements of the ECHR.
52. The principle of independent and impartial tribunals is confirmed by Article 6 of the ECHR. In order to reinforce respect for this principle, the Council of Europe drew up Recommendation No. R (94) 12 on the independence, efficiency and role of judges, which specifies the preconditions for judicial independence. Opinion No. 1 (2001) of the Consultative Council of European Judges (CCJE) concerning the independence of the judiciary and the irremovability of judges further develops the provisions of this Recommendation: in endorsing the requirements of the European Charter on the Statute for Judges in this respect, the CCJE considered that "the fundamental principles of judicial independence should be set out at the constitutional or highest possible legal level in each member state, and its more specific rules at the legislative level."
53. In view of the specific risks surrounding an administrative judge since he or she is required to settle disputes concerning the public authorities, this principle reasserts the requirement of both subjective impartiality (taking account of the judge's personal conviction or interest in a given case) and objective impartiality (which consists in ascertaining whether the judge offers sufficient guarantees to exclude all legitimate doubt in this respect), as upheld in the case-law of the European Court (Piersack, 1982, De Cubber, 1984, Demicoli, 1991, Sainte-Marie, 1992, judgments). In this connection, the CCJE confirmed in its Opinion No. 3 (2002) that "judges should, in all circumstances, act impartially to ensure that there can be no legitimate reason for citizens to suspect any partiality."
54. Even though there are international legal instruments aimed at protecting such independence and impartiality, it appeared important to explicitly confirm this principle in the Recommendation on judicial review of administrative acts. The independence and impartiality of judges adjudicating in administrative cases are essential for guaranteeing the effective protection of citizens' rights.
55. This principle supplements principle 3.a; it specifies the characteristics of the body responsible for judicial review of administrative acts: it refers to both administrative tribunals and ordinary courts dealing with administrative proceedings, both categories of court having the same status. Each state will choose one or the other type of court to deal with administrative proceedings depending on its own system of organisation of the courts.
56. Both administrative tribunals and ordinary courts must satisfy the requirements of principle 3.a.
4. Right to a fair trial
57. This section further develops the provisions of Article 6 of the ECHR with practical measures to be applied to the examination of administrative cases. The Recommendation takes account of the problems arising in some countries in connection with safeguarding the principles set out in Article 6 on proceedings relating to formal administrative acts.
58. According to the case-law of the European Court, the reasonableness of the time-limit stipulated in Article 6 of the ECHR must always be evaluated in the light of the specific circumstances of the case, such as its complexity, the applicant's conduct and the manner in which the case is dealt with by the administrative or judicial authorities (O., 1987, Tomasi, 1992, Poiss, 1987, judgments). As stated in paragraph 42 above, the “reasonable” length of time stipulated in Article 6 of the ECHR does not refer solely to the duration of the proceedings conducted before the administrative tribunal. The time taken into consideration may begin on the day the party starts an appeal procedure within the administration, if this is a precondition for the judicial review in question.
59. The concept of a fair trial necessitates respect for the principle of equality of arms between the parties to proceedings. In administrative cases there is a particular risk of infringement of this principle by the parties' relative positions, with one side representing the authorities and the other demanding that their rights be respected. Applicants should therefore have the full benefit of the protection provided by Article 6.1 of the ECHR in general in order to make good this inequality inherent in administrative proceedings.
60. The principle of equality of arms requires that each party have the same facilities for presenting its case under conditions which do not place it at a clear disadvantage compared with the opposing party (Dombo Beheer B.V. judgment, 1993, Stran Greek Refineries and Stratis Andreadis judgment, 1994).
61. This principle confirms that the administrative authority is obliged to make available all the documents in its case-file on which it bases its decision.
62. Access by parties to the administrative file is one of the preconditions for a fair trial. According to the case-law of the European Court, this principle implies that a citizen must have access to the administrative file as forwarded to the tribunal by the administration (Schuler-Zgraggen judgment, 1993). This requires the administration to supply all the facts on which its act was based. The European Court has confirmed this requirement in connection with documents that might help the applicant in putting his/her case (Bendenoun Judgment, 1994). It is essential for the fairness of the trial that the administrative file be forwarded in sufficient time.
63. Effect can be given to these requirements either by imposing a duty on the authority to disclose all the relevant documents to the tribunal, or by giving the tribunal the power to require disclosure of these documents.
64. In certain circumstances it should be possible to apply special protective measures to sensitive documents (for instance, where national security is at stake).
65. The right to adversarial proceedings in administrative cases involves notifying the appeal to the opposing party and any other interested parties.
66. According to the case-law of the European Court, the fundamental right to adversarial proceedings "means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party" (Ruiz-Mateos judgment, 1993). This includes documents and all information admitted by the tribunal. That does not prevent various means of protection being given by the tribunal to sensitive documents (for instance in order to protect national security, professional secrecy or intellectual property rights).
67. The adversarial nature of the proceedings must be safeguarded in cases where evidence concerning the case's admissibility is disputed.
68. This principle confirms that a court must be in a position to examine all the arguments raised by the parties (Ortenberg judgment, 1994). The arguments relied on may concern points either of law or of fact.
69. Regarding questions of law, where the contested measure was taken under the administration's regulatory powers, the tribunal to which the case is referred must be empowered to examine whether the administrative authority remained within the limits of the law; in this connection, the tribunal must be able to review the challenged measure "in the light, inter alia, of principles of administrative law" (Oerlemans judgment, 1991).
70. Regarding the facts, the court must be competent to ascertain these (Fischer judgment, 1995) or at least to correct errors of fact (Albert and Le Compte judgment, 1983). One possibility is that the court should be able to ascertain the relevant facts itself by rehearing the case. However, Article 6.1 of the ECHR apparently does not preclude a system whereby the court must rely on the facts ascertained by the administrative authority. In that case it is nonetheless vital that the procedure before the administrative authority should offer guarantees concerning the decision-making process and also that the court should be able to ascertain, firstly, that the administration's findings of fact were based on sufficiently sound evidence and, secondly, that the administrative act did not result from a conclusion which no administrative authority, acting rightly, would have drawn from the facts (Potocka judgment, 2001).
71. A number of legal systems allow administrative tribunals to rule on the lawfulness of the contested act, even where the ground relied on in a finding of unlawfulness was not raised by a party, if it finds that the act is unlawful. This system strengthens judicial control of the administration by a tribunal and thus the judicial protection of applicants.
72. The administrative tribunal is entitled and obliged to offset any inequality between the parties. For instance, the tribunal may invite the parties to submit additional factual evidence (or to supplement the information available on the circumstances of the case). The tribunal should have the initiative in determining the progress of the administrative proceedings.
73. In annulment proceedings the tribunal should verify the existence of the facts. Where the administrative act involved the exercise of a discretionary power, it ascertains that the limits on the exercise of that power have not been overstepped. It also verifies application of the law to the facts.
74. Proceedings must be public in order to protect the citizens against any secret, arbitrary judicial approach.
75. The right to public proceedings in principle includes the right to a public hearing, if none of the exceptions laid down in the second sentence of Article 6.1 of the ECHR apply (Håkansson and Sturesson judgment, 1990). Nevertheless, the question of whether a hearing is necessary is dealt with differently in different national laws, particularly for administrative proceedings as they are often written proceedings and mainly concern questions of law. The right to a public hearing is particularly important where the tribunal examines contested questions of fact.
76. Both written and oral procedure should be public. All members of the public should be able to acquaint themselves with the proceedings, in particular their course and conduct.
77. Where a case is examined at different levels by different bodies and is of a highly technical nature, it may be justifiable not to hold a public hearing in the final stages of the proceedings (Eisenstecken judgment, 2000). In proceedings before a court of first and only instance "exceptional circumstances" must be shown in order to justify dispensing with a hearing (Göç judgment, 2001). Such circumstances are difficult to prove where the court deals with questions not only of law but also of fact (Fischer judgment, 1995).
78. Where it is in the public interest, the procedure should be oral. The choice between a written or an oral procedure in specific cases should be determined by national law.
79. The parties should be able to waive the right to a public hearing of their own free will, either expressly or tacitly. However, this waiver should be ineffective where it runs counter to an important public interest (Schuler-Zgraggen judgment, 1993).
80. The principle that judgments should be pronounced in public, which is confirmed by Article 6 of the ECHR, requires all interested parties to have access to a judgment in which they have a legitimate interest, whereby judgments of general scope should also be accessible to a broad public, taking account of language considerations and such facilities as publication in a journal or in the electronic media (Pretto judgment, 1983).
81. Reasons must be given for the judgment pronounced by the tribunal. The reasoning of the judgment should be presented in writing and relate to the tribunal's response to all of the applicant's arguments, justifying the decision reached. The scope of this obligation may vary in accordance with the nature of the judgment. The reasons given must be specific and suited to the facts of the case, not confined to mere references to certain pieces of legislation. However, no detailed reply is required to each argument, as the European Court confirmed in its Ruiz Torija judgment (1994). Any lack of or inadequacy in the reasons given is liable to invalidate the judgment in formal terms.
82. The terminology used in the reasons is extremely important for the parties' understanding of them. Special attention must be paid to the use of terms from other fields which might prove inappropriate in the judicial context.
83. Proper judicial protection involves the right to two-tier proceedings. Nevertheless, while appeal facilities are not compulsory under the ECHR, they are still possible with a view to reducing the risk of arbitrary decisions, inter alia within the judicial system. This principle should be applied to the most important cases, particularly those involving heavy administrative sanctions, subject to any exceptions provided for in domestic legislation. The applicant's right to appeal against the judgment pronounced should be recognised in each State within a reasonable time-limit defined by the individual national system. States will decide the extent to which appeals can be lodged with higher courts.
84. The Recommendation accordingly goes further than the ECHR and requires a right of appeal in the most important cases. National law should specify the conditions of appeal and the jurisdiction of the appeal body, which must satisfy the requirements of Article 6 of the ECHR. Involvement of a higher instance in administrative proceedings is essential to guarantee the consistency of administrative case-law.
85. This principle does not apply where a case is referred directly to the higher tribunal pursuant to national law.
5. The effectiveness of judicial review
86. The Recommendation recognises that judicial review of administrative acts must be effective so that citizens' rights and interests are afforded genuine protection and to ensure the credibility vis-à-vis society and the efficiency of the administration itself.
87. The Recommendation seeks to guarantee that a tribunal may take the necessary measures to restore a lawful situation. It covers provisional measures, procedural and substantive decisions, i.e. the power to prevent potentially prejudicial material actions; the power to order the adoption of a material action which should have been but was not adopted, particularly in connection with enforcing administrative decisions already taken; the power to order the adoption of administrative acts and decisions, in the case of limited discretion; and the possibility of preventing the adoption of decisions in cases of limited discretion, where the Administration has acted ultra vires.
88. The Recommendation does not exclude the possibility of the tribunal replacing the administrative act where such a measure would be compatible with national legislation. The case-law of the European Court does not require the administrative tribunal to substitute an act held to be unlawful. Nevertheless, the tribunal must be in a position to impose its judgment on the administrative authority when the latter issues a fresh decision, on referral after the original judgment has been set aside. This rule does not apply to cases where after annulment of an act the administration is not required to take a new decision (for instance, in appointment matters, if an appointment decision is annulled, the administration has discretionary power to decide whether to resume the appointment procedure).
89. This principle recognises that the tribunal has jurisdiction not only to deal with the substance of a complaint, but also, where the complainant is successful, to award some form of redress. Where appropriate, compensation for both pecuniary and non-pecuniary damage resulting from a violation must in principle be possible. In general, compensation is made by setting the decision aside.
90. The tribunal should also be empowered to exempt parties from liability for costs where justified.
91. The execution of judgments is an important aspect of the effectiveness of control, and it is imperative to ensure that the administrative authorities in question execute the tribunal's judgments. This Recommendation endorses Recommendation No. R (2003) 16 on the execution of administrative and judicial decisions in the field of administrative law.
92. The possibility of enforcing the administrative authority's compliance with the judicial decision should be guaranteed. Means of enforcement should be consistent with national legal tradition.
93. This principle is aimed at ensuring that implementation of the contested measure can be suspended in cases where its enforcement would place the person concerned in an irreversible situation (Jabari judgment, 2000, and Čonka judgment, 2002).
94. The Recommendation recognises that the tribunal should have authority to grant provisional measures of protection pending the outcome of judicial proceedings. Such measures can include the full or partial suspension of the execution of the disputed administrative act, thus enabling the tribunal to re-establish the de facto and de jure situation which would prevail in the absence of the administrative act or to impose appropriate obligations on the administrative authorities.
95. In this respect this principle is consistent with Recommendation No. R (89) 8 of the Committee of Ministers to member states on provisional court protection in administrative matters, which provides that an applicant may request the court or another competent body to take measures of provisional protection against the administrative act.
Draft revised specific terms of reference
1. Name of Committee:
Project Group on Administrative Law (CJ-DA)
2. Type of Committee:
Committee of experts
3. Source of terms:
European Committee on Legal Co-operation (CDCJ)
4. Terms of Reference:
Under the authority of the European Committee on Legal Co-operation (CDCJ), taking into account its revised specific terms of reference for 2004 and having regard to Parliamentary Assembly Recommendation 1615 (2003) on the institution of ombudsman, the CJ-DA is instructed:
a. to carry out a study on the means of strengthening the legal framework of good administration as an essential element of good governance and, in particular, to study what improvements should be made to administrative decision making.
On the basis of this study, the CJ-DA shall indicate the feasibility and desirability of preparing a recommendation in this field and/or a consolidated model code of good administration as envisaged in Parliamentary Assembly Recommendation 1615 (2003).
b. to carry out any other activity with which the CDCJ might entrust it in execution of its own terms of reference or in implementing the priorities identified by the Committee of Ministers.
5. Membership of the Committee:
a. The governments of all member States are entitled to appoint members with the following desirable qualifications: senior officials having responsibilities as regards administrative law and administrative justice.
The Council of Europe's budget bears the travelling and subsistence expenses for one expert per member State.
b. The Commissioner for Human Rights, the European Commission for Democracy through Law (Venice Commission), the Steering Committee for Human Rights (CDDH) and the Congress of Local and Regional Authorities of the Council of Europe, may send one representative to the meetings of the Group.
c. The European Commission and the General Secretariat of the Council of the European Union may send one representative to the meetings of the Group without the right to vote or defrayal of expenses.
d. The following observers with the Council of Europe may send representatives to meetings of the Group without the right to vote or defrayal of expenses:
- Holy See
- United States of America
e. The following observers with the Group may send representatives to meetings of the Group without the right to vote or defrayal of expenses:
- UN and its specialised organs
- the International Commission on Civil Status (CIEC)
- the European Public Law Centre and
- the European Federation of Administrative Judges.
6. Working structures and methods:
The CJ-DA may set up working parties, use consultants and organise hearings and consultations.
These terms of reference shall be reviewed before 31 December 2005.
Draft specific terms of reference
1. Name of committee:
Committee of Experts on Family Law (CJ-FA)
2. Type of committee:
Committee of experts
3. Source of terms of reference:
European Committee on Legal Co-operation (CDCJ)
4. Terms of reference:
Under the authority of the CDCJ and having regard in particular to the Final Declaration and Action Plan of the Second Summit of the Heads of State and Governments of the member States of the Council of Europe (Strasbourg, 10 to 11 October 1997), to strengthen the legal protection of children and to promote an area of common legal standards in the field of family law throughout Europe, in particular, the Committee is instructed:
a. to prepare, for the attention of the CDCJ a new convention on the adoption of children, taking into account the final report containing detailed proposals for the revision of the European Convention on the Adoption of Children [ETS No. 058] and the submissions made by the member States;
This work will be carried out by the CJ-FA and its Working Party on adoption (CJ-FA-GT1) from 2004 to 2006 and a progress report will be submitted to the CJ-FA in 2005. The final draft of this new convention will be submitted by the CJ-FA to the CDCJ in 2006;
b. to prepare, for the attention of the CDCJ:
(i) a report containing proposals concerning succession and matrimonial property regimes, in particular to ensure the legal protection of the family in matters of succession. This report will contain information and principles providing guidance to States to assist them to carry out any necessary reforms concerning succession and matrimonial property regimes;
(ii) a report concerning missing persons, presumption of death and commorientes.
This work will be carried out by the CJ-FA and its Working Party on succession (CJ-FA-GT2) in 2004 and 2005. The final report will be submitted by the CJ-FA to the CDCJ in 2006;
c. to consider the follow-up to be given to the White Paper on principles concerning the establishment and legal consequences of parentage;
d. to ensure the proper implementation of the international instruments of the Council of Europe in the field of family law, in particular relating to children, including the use of Best Practice Surveys.
5. Membership of the Committee:
a. All member States may designate representatives to the Committee. These representatives should be specialists in the subject matter. The Council of Europe's budget bears the travelling and subsistence expenses for one representative per member State.
b. The European Commission and the Council of the European Union may participate in meetings of the Committee, without the right to vote or defrayal of expenses.
c. The following observers with the Council of Europe may attend the meetings of the Committee without the right to vote or defrayal expenses:
- Holy See
- United States of America
d. The following observers with the Committee may attend the meetings of the Committee without the right to vote or the defrayal expenses:
- Hague Conference on Private International Law
- International Commission on Civil Status (CIEC)
- International Institute for the Unification of Private Law (UNIDROIT)
- International Social Service (ISS)
6. Working structures and methods:
The preparatory work will be carried out by the Working Party on adoption (CJ-FA-GT1) and by the Working Party on succession (CJ-FA-GT2). These Working Parties will take account in particular of:
a. the replies of States to questionnaires;
b. the discussions of the European Conferences on family law concerning these topics and
c. the White Paper on principles concerning the establishment and legal consequences of parentage.
Relevant work is carried out in consultation with other appropriate bodies of the Council of Europe.
The terms of reference of the committee shall be reviewed before 31 December 2006.
Foreword to the “White paper on the principles concerning legal consequences of parentage”
As a result of the XXVII Colloquy on European Law on “Legal problems relating to parentage” held in 1997 in Valletta, Malta, the Council of Europe Committee of experts on family law (CJ-FA) discussed the future work to be carried out on questions concerning the legal status of children in the light of the proposals made at this Colloquy.
Following the examination of these proposals, it was decided to prepare principles to be included in an international instrument (Convention or Recommendation) on the legal status of children.
At the initial stage of preparation in 1997 the CJ-FA assigned its Working Party No. 2 on the legal status of children (CJ-FA-GT2) the task of drawing up a report containing principles relating to the establishment and legal consequences of parentage in order to provide guidelines to States, which was finalised and submitted to the CJ-FA during its 31st meeting from 5 to 7 October 1998 as a Report on principles concerning the establishment and legal consequences of parentage.
In 1999 the CJ-FA discussed, as a preliminary question, the nature of the international legal instrument to be prepared by its Working Group. As a large number of member States were revising their national laws on these issues at the time, it was not advisable to prepare a new Convention which could become rapidly out of date or which could be in contradiction with new internal laws. Therefore, the CJ-FA entrusted the CJ-FA-GT2 with the task of preparing at that stage a Recommendation containing a set of principles or standards relating to the establishment and legal consequences of parentage. Some or all of these principles could be considered as possible models which could be used by national legislatures when elaborating or revising their internal laws concerning these issues at present or in the future.
In 2000, the CJ-FA during its 33rd meeting from 23 to 25 May 2000, asked the CJ-FA-GT2 to revise and finalise the Report on principles concerning the establishment and legal consequences of parentage and to indicate whether it might be possible to prepare a draft Recommendation on this subject.
In the light of the comments received from delegations, the CJ-FA felt that – in a field as important as that concerning the legal status of children, which was affected by the development of society and by progress in areas such as technology, genetics and medically assisted procreation – governments and other persons concerned should be given more time to comment on the principles set out in this text. Therefore it proposed that the Report be disseminated in the form of a “White Paper” for the purposes of comments, particularly by CJ-FA participants, and public consultation.
Consequently the CJ-FA proposed to examine any comments on this “White Paper” submitted to the Secretariat by 31 January 2003 at the latest with a view to report subsequently to the CDCJ. Only ten comments were received by the deadline of 31 January 2003.
Due to the low number of comments, the period for public consultation of the White Paper was extended to 31 December 2003 after which and any further prolongation of the consultation period seemed unnecessary.
It was decided by the Plenary of the CDCJ on 11-14 May 2004 to adopt this document as a Report and request its publication. It has to be noted that this Report could be a useful basis for introducing national legislation on this question and possible drafting of a new Council of Europe Convention on adoption, as it also deals with the adoption law. Although the time is not yet ripe to draft a recommendation or even guiding principles on this issue, national legislation in this area is constantly developing, leaving open the possibility of reviewing the Report after a certain period of time.
Working Plan of the CDCJ concerning the freedom of movement
1. The CDCJ had a preliminary exchange of views concerning the ad-hoc terms of reference given to the CDCJ by the Committee of Ministers at the 883rd meeting of the Ministers' Deputies on 5 May 2004 (Decision No. CM/863/05052004) concerning the freedom of movement, and noticed the high importance of this issue with a view to building Europe without dividing lines.
2. Having in mind that the major task within these terms of reference consists of “drawing up a list of existing good practices relating to the movement of persons between the Council of Europe member States” and in view of the large variety of such practices, as well as the need for broader representation of the countries with different visa regimes and particular complexity of this issue, combined with a relatively short time provided for accomplishing of these terms of reference (30 November 2004), the Committee considered that the involvement of experts or a research Institute and the establishment of a Working Party within the CDCJ (CDCJ-GT-MOV) would be the most effective way to meet the requirements of the terms of reference. This Working Party should be chaired by a member of the CDCJ Bureau.
3. The experts (Institute) would summarize in a Report prepared by mid-September 2004 these best practices including in particular multilateral, bilateral and individual measures taken by member States, the effectiveness of existing legal instruments of the Council of Europe in this field, and other possible topics that could emerge from the provision of the Parliamentary Assembly Recommendation 1648 (2004) on the “consequences of European Union enlargement for freedom of movement between Council of Europe member States”.
4. The Report prepared by the experts (Institute) should be sent to the CDCJ delegations for information as soon as it is available and should be considered by the CDCJ-GT-MOV on its first meeting later in September, where preliminary considerations/conclusions from this report should be drafted. The draft considerations/conclusions of the CDCJ-GT-MOV should be forwarded to the CDCJ delegations by written consultation procedure for their comments to be received by 1st November 2004 at the latest.
5. In the first half of November 2004 the CDCJ-GT-MOV would held its second meeting with a view to taking into account the contributions by national delegations. The CDCJ Bureau would finalize the draft conclusions of the CDCJ-GT-MOV on its meeting in the second half of November. The members of the CDCJ-GT-MOV could assist the Bureau in this work, subject to budgetary provisions. The Bureau is entrusted by the CDCJ to finalize the list of good practices in this domain, and convey it to the Committee of Ministers before 30 November 2004.
6. By its Decision on the same meeting of 5 May 2004 the Committee of Ministers invited the CDCJ to express its Opinion on Parliamentary Assembly Recommendation 1648 (2004).
7. The CDCJ is of the opinion that this task should be carried out in parallel with the execution of the above ad hoc terms of reference given to the CDCJ by the Committee of Ministers. Having this in mind, the CDCJ-GT-MOV should also start drafting the Opinion since its first meeting with particular focus to the issues mentioned in the Parliamentary Assembly Recommendation 1648 (2004). The CDCJ Bureau will consider this preliminary draft Opinion on its meeting in the second part of November 2004, and on its first meeting in 2005, using also the procedure of written consultations in due time before the CDCJ plenary in 2005.
8. Subject to further decision of the Committee of Ministers, this Opinion could be finalized by the CDCJ in due course on its next plenary meeting in 2005 or by the CDCJ Bureau at its meeting in the beginning of 2005.
9. The CDCJ expressed an opinion that other Steering Committees, in particular related to the Council of Europe Conventions in the field of criminal law, should also be invited to formulate their Opinions on the Parliamentary Assembly Recommendation 1648 (2004).
Dates of the meetings foreseen after 15 May 2004