Country : Germany
Author : Klaus Lernhart
I The impact of Article 6 of the European Convention of Human Rights (ECHR) about the "right to a fair trial" on litigation proceedings applicable to the administrative G
The text of article 6 of the ECHR : “1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice…”
1. An independent and impartial tribunal established by law : the concepts of jurisdiction and administrative court :
There are three separate branches of administrative justice (Financial, Social and General Administrative Courts) each of which are completely independent from administrative authorities.
2. The right of access to a court and to effective judicial protection, the right to an effective judicial remedy :
These rights are guaranteed by the Constitution (Art. 19 Para 4 Basic Law, BL) and provided in detail in the respective Court Procedure Codes (e.g. Art. 40 Code of Administrative Court Procedure, CACP).
The right of access to court principally depends on a respective standing to sue which is assumed when subjective rights more or less explicitly granted and defined by law are possibly impaired. This concept has been slightly loosened lately by national jurisdiction, in the wake of decisions of the CJEU, particularly in cases related to applicable EU law.
3. The right to an adversarial proceedings and the principle of “equality of arms” between the parties :
These rights follow already from the constitutionally guaranteed right to be heard (Art. 103 Para 1 BL) in connection with the principle of equality before the law (Art. 3 BL). Nevertheless they are additionaly stressed and made aware by the respective European law.
4. The right to a reasoned decision :
This right is principally stated in the Court Procedure codes. There are certain exemptions for rulings which cannot be appealed and which are not decisions on an appeal (Art. 108, 122 CACP). Besides rulings that decide on an appeal may refer to the reasoning of a challenged court decision insofar as the appeal court rejects the appeal as not founded for the reasons of the challenged decision. Moreover the court may refrain from a further reasoning insofar as it explicitly concurs with the reasoning of a challenged administrative act or of the decision of a higher administartive authority on an objection against the administrative act (Art. 117 Para 5 CACP). These partial reductions of reasoning requirements in the interest of procedural economy do not appear to get in conflict with the principal right on the European law level.
5. A judicial decision made within a reasonable time :
There are two topics related to this question : Taking the decision as such within a certain time frame since the lodging of an action or appeal, i.e. duration of the court proceedings (a), and serving the operating part and the reasoning of the decision within a certain time (b)
a) There are no explicit legal provisions on the duration of court proceedings. In the jurisdiction of the Federal Constitutional Court a right to a court decision within reasonable time is deduced from Art. 2 Para 1 BL (right of free development of personality) and Art. 20 Para 3 BL (Rule of Law). Yet formerly there were no legal remedies available to pursue this right. The only way to induce acceleration of court proceedings was to remind the court of the time going by (« breach of law by means of time »), to emphasize the urgency of the claim, and/or to launch a disciplinary complaint on the judge’s inactivity which mostly was answered by the hint on independence of judges.
After Germany had been blamed several times (in 40 also civil or criminal cases) by the ECHR for the length of court proceedings a new law has entered into force in 2011 introducing a respective remedy to be dealt with principally by the Courts of Appeal. It applies for all courts, not only the administrative ones. The new law grants financial compensation to a party for disadvantages suffered by inadequate duration of the proceedings, except for loss of profit, but including also immaterial disadvantages (e.g. impairment of reputation, depriving of care for children), the latter as a rule amounting to 1.200 EURO per year of inadequate delay. An action for compensation is admissible however only 6 months after lodging a formal complaint (« censure of delay ») with the court dealing with the subject-matter. Furthermore a financial compensation for immaterial disadvantages is not granted if compensation is deemed sufficient by a ruling of the compensation court that the duration of the proceedings was inadequate.
In practice there is still little experience with the new remedy. At my court no compensation claim has been lodged until now but only one censure of delay. Probably the sheer existence of the new instruments will have some preventive effect.
The new law is as Section 198 embedded in the Courts Constitution Act :
(1) Whoever as the result of the unreasonable length of a set of court proceedings experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein.
(2) A disadvantage not constituting a pecuniary disadvantage shall be presumed to have occurred in a case where a set of court proceedings has been of unreasonably long duration. Compensation can be claimed therefor only insofar as reparation by other means, having regard to the circumstances of the particular case, is not sufficient in accordance with subsection (4). Compensation pursuant to the second sentence shall amount to EUR 1,200 for every year of the delay. Where having regard to the circumstances of the particular case the sum pursuant to the third sentence is inequitable, the court can assess a higher or lower sum.
(3) A participant in proceedings shall obtain compensation only if he has complained about the length of the proceedings to the court seized of the case (censure of delay). A censure of delay can be filed only if there is cause to fear that the case will not be concluded within a reasonable time ; a censure of delay can be reiterated at the earliest after six months, but not in a case where a shorter duration is necessary by way of exception. Where expedition of the proceedings depends on factors that have not yet been introduced into the proceedings, reference shall be made thereto in the complaint. Otherwise, in the assessment of the reasonable length of proceedings, account shall not be taken of these factors by the court required to give the decision on compensation (court of compensation). Where the proceedings are further delayed before another court, it shall be necessary to file a new censure of delay.
(4) Reparation by other means shall be possible in particular where the court of compensation makes a finding that the length of the proceedings was unreasonable. Such finding shall not require the making of a prior application. In serious cases the finding can be made in addition to compensation ; it can also be made where one, or more than one, precondition under subsection (3) has not been fulfilled.
(5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the censure of delay. The court action must be brought no later than six months following entry into final and binding force of the decision ending the proceedings, or following another manner of disposal of the proceedings. The claim shall not be transferable until a final and binding decision has been given in the court action.
(6) Within the meaning of this provision
1. a set of court proceedings shall mean every set of proceedings from their introduction until their conclusion with final and binding force, including proceedings for granting provisional court relief and for granting legal aid ; an exception to this shall be formed by insolvency proceedings once they have been opened ; where insolvency proceedings have been opened the obtaining of a decision shall be deemed to be a set of court proceedings ;
2. a participant in proceedings shall mean any party to, and any participant in, a set of court proceedings with the exception of entities of constitutional rank, of public administration entities and of other public agencies, so far as the latter are not participating in a set of proceedings in the exercise of a right of self-governance.
b) As to the time frame for serving the operating part and the reasoning of the decision the following provisions apply :
Art. 116 CACP
(1) If an oral hearing has taken place, the judgment shall as a rule be pronounced in the hearing in which the oral hearing is concluded, in special cases in a hearing to be scheduled immediately which should not take place more than two weeks later. The judgment shall be served on those concerned.
(2) In place of the pronouncement, the service of the judgment shall be permissible ; in such a case, the judgment shall be communicated to the registry within two weeks after the oral hearing.
(3) If the court rules without an oral hearing, the pronouncement shall be substituted by being served on those concerned.
Art. 117 Para 4
(4) A judgment which on its pronouncement was not yet fully drafted shall be conveyed to the registry in completely drafted form prior to the expiry of two weeks, calculated from the day of the pronouncement. If this cannot take place exceptionally, within these two weeks the judgment signed by the judges shall be conveyed to the registry without facts, reasoning of the ruling and notification of appeals ; the facts, reasoning of the ruling and notification of appeals shall be set down subsequently as soon as possible, signed individually by the judges and conveyed to the registry.
In practice there have been problems sometimes with delivering the written reasoning within reasonable time. According to the jurisdiction of the (last instance) Federal Administrative Court the reasoning has to be served at the latest within 5 months since the final oral hearing. Otherwise the decision is regarded as lacking any reasoning and will on a respective appeal be repealed already for that reason.
II The influence of principles of European law in the evolution of administrative law
6. The principle of legality and the respect for fundamental rights :
The principle of legality as well as the respect for fundamental rights have been cornerstones of the Basic Law (particularly Art 20 Para 3 and Articles 1 to 19, 103 BL) and the jurisdiction of the Federal Constitutional Court from the beginning. Problems arose now and then when compliance of secondary EU law with fundamental rights as stated in the Basic Law was doubted. The Federal Constitutional court announced a respective control but in the end restrained from an in depth scrutiny assuming that EU law itself provides for similar guarantees and that the core of protection by the Basic law was not harmed. This attitude is backed now by the Lisbon treaty entailing the entering into force of the EU Charter of fundamental rights.
7. The principles of primacy and direct effect of European Union law :
These principles are not questioned in court practice. Therefore the more EU law and decisions of the CJEU are released the more these principles will have influence on the national legal order.
9. The principle of subsidiarity :
This principle (as stipulated in Art. 5 TEU) primarily addresses the legislative powers. It is of some importance in court practice especially when procedural autonomy of member states is at stake or when the interpretation of material law suggests or requires the recourse to demarcation of competences as an argument for determining the range of applicability of the material provisions.
10. The principle of transparency :
There seems to be no specific effect going beyond the usual national court practice, apart from the aspect of public participation in administrative decisions (see below 11.).
11. The principle of public participation :
This principle has doubtless been fostered by EU law, particularly in the field of environmental law (e.g. Directives on Environmental Impact Assessment), and entailed national legislation as well as jurisdiction safeguarding the application of this principle.
12. The principle of egality and non-discrimination :
Although these principals were existing in national law before EU law and CJEU decisions stressed and shaped their validity (e.g. access to civil and military service, to education).
13. The principle of proportionality :
It has been developed and elaborated especially by the Federal Constitutional Court and was likewise introduced into EU law by the jurisdiction of the CJEU thus marking a common standard to be observed by legislators and administrative authorities notably when affecting subjective rights.
14. The precautionary principle :
It is of substantial importance in environmental law where EU provisions require its application. It has been promoted by EU law insofar as national law did not contain respective provisions and did not – like in Germany – grant standing to sue based on this principle. With regard to the late jurisdiction of the CJEU (e.g. the TRIANEL judgement) it now can be invoked by environmental associations even if national law is not yet adjusted, following the principle of primacy (Judgement .
15. Protection of legitimate expectations and the principles of legal certainty and good faith :
Legal certainty and protection of good faith both being part already of the national constitutional legal order stand in contrast to each other and have to be balanced. EU law requires more strictly than national German law to observe objective legality particularly in the field of granting subsidies and their revocation in case of unlawfulness. German jurisdiction was adjusted respectively.
16. The principle of responsibility :
The substance of this principle seems not quite clear, it should be explained in the workshop.
17. The impact of other principles of European law on administrative law ?
The well known principles of effectiveness and equivalence are top guidelines for interpretation when applying EU law or national law in the light of EU law.