The Role of Administrative Judges in the context of the EU Law: the Case of Slovenia
Assoc. Prof. dr. Boštjan Zalar, High Court Judge, the Administrative Court of the Republic of Slovenia
1. In respect of the international law in general, the provision of Article 8 of the Constitution of the Republic of Slovenia states that "statutes and other legislative measures shall comply with generally accepted principles of international law and shall be in accord with international agreements that bind Slovenia. Ratified and proclaimed international agreements to which Slovenia adheres shall take immediate effect." Based on this Article, in Slovenia, we do not have the so-called dualist system in respect of international law. Instead, judges may apply statutory provisions of national legislation insofar as they are consistent with the relevant international agreements (constitution-friendly interpretation); otherwise, they must stay the proceeding and refer the issue of the constitutional validity of the statute to the Constitutional Court (Article 156 of the Constitution), because the Article 125 of the Constitution states that judges shall exercise their duties and functions in accordance with the Constitution and with statutes.
However, Article 8of the Constitution was not suitable for the circumstances of the EU law. Therefore, due to the accession to the European Union, the Parliament had to amend the Constitution with the so-called "European Article". The provision of Article 3(a)(3) states that legal acts and decisions adopted within the international organisations to which Slovenia transferred part of its sovereign rights must be applied in Slovenia in accordance with the law of those organisations. Based on the Article 3(a)(3) of the Constitution, in my opinion, two possible interpretations could be derived regarding the question of the relation between the EU law and the Constitution. One could argue that Article 3(a)(3) gives a primacy of EU law over the national law, which may include even the Constitution, because the case-law of the European Court of Justice (hereinafter referred as the ECJ) stands for the primacy of the EU law. On the other side, it could be argued that the constitutional law of the Member States form an inseparable part of the EU law, which means that the positions and case law of the Constitutional Courts or of the Supreme Courts of the Member States in respect of the relation between EU law and constitutional law of the Member States also means a law of the EU in terms of the last part of the text in the Article 3(a)(3). However, in the public discussions, the commentators of the legal theory and Judges of the Constitutional Court of the Republic of Slovenia do not invoke the later interpretation in order to defend the Constitution against the EU law supremacy. Instead, some Judges of the Constitutional Court point to the second part of the Article 3(a)(1) of the Constitution in order to guarantee some open space for the Constitutional Court in a similar manner as the Constitutional Court of the Federal Republic of Germany adjudicated in (Solange I, Solange II and) Brunner v. the European Union Treaty (Maastricht Judgment, 1994).
In my opinion, a discourse on the question of hierarchy between the EU law and Constitutions of the Member States or vice versa is highly probably missing the relevant point. Namely, the recent case law of the ECJ shows that the ECJ is trying to establish a dynamic harmonisation between EU law and constitutional law of the Member States, so that we are in fact experiencing an internationalisation of the constitutional law. In case C-112/00 , the ECJ even gave a considerable advantage to the German constitutional law over the EU law and in case C-117/01 the ECJ left a final decision on the application of EU law to the national court in the United Kingdom.
The major positions in the case law of the Constitutional Court of the Republic of Slovenia in regard to the relation between constitutional law and EU law are the following:
The Constitutional Court accepted the primacy and direct effect of EU Regulation in the sense that the national law is not incompatible with the Constitution simply because it does not incorporates provisions form the EU Regulation.
In the same case, the Constitutional Court adopted a position that national courts were not obliged to apply the provisions of the EU Regulation, since at the time of adjudication of ordinary courts Slovenia has not been yet a member of the EU. However, according to the comment of a Constitutional Court Judge M. Škrk, in this case the Constitutional Court was not obliged to apply the EU Regulation due to the fact that the procedural norm of the EU law was at stake. This interpretation of the application of the procedural rules of the EU law is in contrast with the interpretation that was adopted by the Administrative Court (in case U 669/2004 of 8 December 2004), where the administrative Court relied on the case law of the ECJ.
The Constitutional Court did not accept to deal with the question of compatibility of national legal provisions from statutes with the EU directive or on the constitutionality of the EU law; it relied on Article 10 of the TEU.
However, with the reference to the case law of the ECJ in Atlanta Fruchthandelgesellschaft and C-453/03 the Constitutional Court temporally stopped the effect of a national by-law whixh was adopted in order to implement EU directive until final ruling of the ECJ. Probably, a decisive factor for such decision was the fact that at the time the Constitutional Court adjudicated the case, the EU Directive was already a subject of a procedure before the ECJ, based on the procedure for preliminary ruling that was started by the court in the United Kingdom.
2. It is only the Administrative Court of the Republic of Slovenia which conduct a judicial review over the administrative decision. An appeal against the judgment of the Administrative Court can be filed to the Supreme Court. There is no competition between the administrative court and other ordinary court and the Constitutional Court in respect of judicial review of concrete administrative decisions. The Constitutional Court does not deal with a review of concrete administrative decisions. A party may file a constitutional complaint against the judgment of the Supreme Court in administrative dispute, but only if the Supreme Court in its judgment violated a particular human right from the Constitution. Otherwise, the Constitutional Court is involved in constructing administrative law under circumstances that an applicant, who has a concrete legal interest, or a certain state authority, file an initiative to the Constitutional court in order to decide on the compatibility of the general administrative act with the Constitution.
There is also no competition in respect of judicial review of concrete administrative decisions between the Administrative Court and other ordinary courts, because the Administrative Dispute Act clearly gives jurisdiction in those matters to the Administrative Court. However, there are two exceptions. If a party in a lawsuit before the Administrative Court claims a financial compensation for a damage caused by an illegal decision of administrative authority, and there is a need to find relevant facts of the case, which would substantially prolong procedure in an administrative dispute, the Administrative Court may redirect a party to claim a financial compensation before a civil court (Article 63(2) of the Administrative Dispute Act). These are extremely rare cases in the practice of the Administrative Court of the Republic of Slovenia.
Under the second exception, if a party in a lawsuit in administrative dispute claim a protection of human rights, then a principle of subsidiarity could be relevant. According to the Article 1 (3) of the Administrative Dispute Act, the Administrative Court adjudicate on the legality of a concrete administrative decision or action, which infringe a human right of an individual, only if no other legal remedy before a competent court (civil, criminal or labour court) is available. The application of the principle of subsidiarity caused some uncertainties in the past case law, but now it seems that it is well settled. In this respect, the ruling of the Constitutional Court in case Up-547/2004 of 3 March 2005 was important. The Constitutional court stated that if the Administrative Court apply a principle of subsidiarity it must clearly define in a judgment, which other concrete legal remedy is available to a party at the other court and it must assess whether this primary legal remedy is an effective one.
3. The main methods of incorporation of community law into domestic law are adoption of statutes in the Parliament and adoption of by-laws by the executive authorities. However, there are some indications that in the filed of asylum the administrative authority tries to implement EU directive exclusively by the practice in a decision making processes and by case law of the administrative courts. By making reference to the case law of ECJ, the Administrative Court reacted to this approach in a case U 38/2006 of 11 January 2006.
1.Until now, no question for preliminary ruling has been send to the ECJ by any court in Slovenia. Generally speaking (for judges in administrative law), I estimate that judges would first try to find the right interpretation of the legal provision by themselves - according to the doctrines of precedent and the acte clair. Only in exceptional circumstances judges will form a preliminary ruling. In the actual experiences of the Administrative Court, there were only two examples, where we had to find a proper interpretation of the EU law provision. This was the question related to the meaning of the “examination of asylum application” in Article 3(2) and Article 2(e) of the Dublin Regulation. The Administrative Court used the English, French, Italian and Slovenian versions of the text of the Dublin Regulation and found out that the contested administrative decision to stop the asylum procedure due to the fact that asylum seeker withdrew an asylum application means an examination or a decision in the sense of Article 3(2) and Article 2(e) of the Dublin Regulation. In contrast to this, the Supreme Court in the same case, by making a reference to Asylum Act, produced an interpretation that the aforementioned decision of the administrative authority is not a decision in the sense of the Dublin Regulation. Before this question, we had to deal with the question whether the court may apply the so called Dublin Regulation in the field of asylum, although this secondary law was not published in Slovene language in Official Journal of the EU. The Slovene version of the Dublin Regulation was accessible only in the EUR-lex data-base. We found a positive answer to this question in the Accession Act with the help of the effet utile method of the interpretation.
2.The application of general principles is very slowly becoming a normal part of adjudication process in administrative disputes. These principles, in the context of the constitutional law, are applied if the party makes an argument on this point or if the court adjudicate on human rights protection in an administrative dispute ex officio. The most frequently used general principles of law are: proportionality, non-retroactivity and non-discrimination; however, the Administrative Court already applied the principle of legitimate expectations (legal certainty), as well. The same development of the use of general principles of law is reasonably to expect also in the context of EU law. As far as the actual attitude of judges towards directives is concerned, there could be identified one position that is not questionable for judges until now, and that is: s directive may be used by the court in order to interpret the provision of national law in the case which affects EU issues, although the time limit for transposition of a directive has not yet expired.
In case that among the general principles of law I include also human rights, then the answer to the question - what is the attitude of judges towards the application of human rights in administrative dispute - would be the one that is given under point 4 within this section of the paper.
3.Respecting the principle iura novit curia a judge should put forward a breach of community law by his/her own motion, but very few experiences in this respect do not allow me to make any firm conclusions on this point.
4.Until now, there were no conflict between the Constitution and EU law in administrative disputes. In cases that involve constitutional rights and EU law, the Administrative Court is trying to find a co-existence or harmony between both sources of law. This happened, for example, in cases of: protection of freedom to choose a place of residence for asylum seeker; protection of a right to an effective legal remedy under the regime of the Dublin Regulation; protection of personal data and access to public information; protection of freedom of movement or protection of a right to personal freedom in cases of detention in asylum procedures.
5. In the case law of the Administrative Court judges see no objections in making direct reference to the ECJ judgments. We make statements in judgments on the principles that are derived from ECJ case law. However, judges (of the Administrative Court) do not make references to interpretation given by another domestic or foreign jurisdiction, except to the interpretations of the Constitutional Court and the Supreme Court of the Republic of Slovenia. There is an exception in asylum law. Judges of the Administrative Court often make reference to the procedural standards and interpretation of substantial law developed by the UNHCR. In those judgments, the word "compatibility" (with the EU law) is probably more often used as the word "conformity". Since the legal provisions in the Procedures Directive and in the Qualifications Directive are strictly defined and unconditional, judges expressly mention the EU law and they do not just make reference to objectives pursued by those directives.
1. An administrative court is empowered to ignore (that is: not to apply) a statutory provision, adopted by the Parliament, for which the court would find and explain in a judgment that it is not compatible with directly applicable and effective legal provision from the EU law. The legal base in national law for such judicial decision is the Article 3(a)(3) of the Constitution. However, the legal base for ignoring by-laws, that are not compatible with the EU law, rests directly in the national law. According to the case law of the administrative judiciary, the provision in the Constitution, according to which judges shall exercise their duties and functions in accordance with the Constitution and with statutes (Article 125), means a legal base for using exceptio illegalis. By using exceptio illegalis, the court ignores a by-law that is not in conformity with the Constitution (and with the statute) and this situation could happen also in a case, which involve EU matters.
2. The administrative court is not empowered to quash general acts (regulations). If the EU law is a matter of an administrative dispute, then the court may simply ignore the national statutory provision that is not compatible with the EU law and it should apply directly applicable and effective legal provision of the EU law. When the dispute is of purely national character, the court, firstly, has an obligation to find a constitution-friendly interpretation. Only in case that this is not possible and it is inevitable to apply the problematic statutory provision in order to resolve the case, the court must stay the procedure and refer the initiative to the Constitutional Court, which is the only authority which can abrogate the general act. Until now, none administrative court in Slovenia has initiated the procedure before the Constitutional Court in order to decide the compatibility of certain legal provision with the Constitution.
3. The administrative court is empowered to compel directly administrative authorities "to act" in accordance with EU only in a concrete judgment, in a concrete administrative dispute, where the administrative authority is a defendant and the court quashes the contested decision of the administrative authority and it sends the case back to the defendant to decide the case in subsequent procedure. Therefore, the notion "to act" is a narrow one, it means "to decide" the case in a subsequent administrative procedure according to the instructions of the Administrative Court in that judgment. The instrument that is formally used in such cases is the legal provision in the Administrative Disputes Act (Article 60(3)), which say that in a subsequent procedure the defendant is bound by the argumentation of the court in relation to its positions on material and procedural law in a given case. If the administrative authority does not follow the instructions or positions of the court in that subsequent procedure, then the court may decide the case instead of administrative authority under the so called full jurisdiction competence (Article 60 (1)(3) of Administrative Disputes Act). The experiences show that there are several cases, especially in asylum law disputes, where the administrative authority does not follow the instructions of the court. In those cases, we do not take the responsibility to decide on the asylum application, but we again send the case back to the administrative authority.
4. Considering the subject under point 3 of this section, the court does not have an effective power to endorse any other (more general) obligations, "actions" or "behaviour" of the administrative authority towards the responsibilities under the EU law. The court may hold responsible an administrative authority only for decisions that could be contested in the lawsuit in a concrete administrative dispute . If a party would claim a financial compensation for the breach of EU law, it would be, under the circumstances of Article 63(2) of the Administrative Dispute Act, highly probably redirected to file a legal remedy for the financial compensation before a civil court.
About three months ago, the Government formed a proposal for the Amendments to the Asylum Act in order to implement some of the EU directives, including the Qualifications Directive. As a member of the court I had an opportunity to give comments on the Governmental proposal about what is wrong in the proposal and what is missing from the point of view of necessary implementation of EU law. The Government ignored those comments, which was quite a normal political reaction of the Government. Namely, its reaction is acceptable from the standpoint of the principle of separation of powers. However, later on, in a recent asylum case, the Administrative Court delivered - within the context of a concrete argumentation – the same general instruction to the first instance authority, as I produced in my comments to the proposal on the Amendments to the Asylum Act, regarding the implementation of Qualifications Directive. The legal situation was the following:
Slovenia transposed the Convention on a Status of Refugee (hereinafter referred as the Geneva Convention) into the Slovenian legal order by the Notification Act in 1992. With this Act, Slovenia formally incorporated several international agreements that were ratified by the former Yugoslavia in the Slovenian legal order. The problem is that the Geneva Convention was published in the Official Journal of Yugoslavia only in the Serbo-Croatian language. The Asylum Act does not contain the definition of the term refugee, but merely makes a reference (Article 1 of the Asylum act) to the definition of the term refugee in the Geneva Convention. Consequently, the Slovenian legislation does not contain the definition of the term refugee in the Slovene language at all. The same holds for the definition of acts of persecution, which is in fact the most frequently used legal notion in asylum disputes. Although the latest Amendments to the Asylum Act aim to transpose the Qualifications Directive into national law, the Government did not consider it necessary to transpose the definition of the term refugee (Article 2(c) and acts of persecution (Article 9 of the Qualifications Directive) into Asylum Act. Under these circumstances, where there was no definition of the term refugee in legislative acts, the administrative authority and the Supreme Court relied on a "well-established" definition of the term refugee and of acts of persecution, which was produced by the administrative authority and the Supreme Court. Both institutions used the reference to the Qualifications Directive and a theoretical work of J. C. Hathaway The Law of Refugee Status (1991) as the legal source for their interpretation. However, in the opinion of the Administrative Court, the “well-established” interpretation of the acts of persecution was wrongful.
Firstly, because the adopted definition of a term persecution was more restrictive then the definition of acts of persecution from the Article 9(1)(a) of the Qualifications Directive and because using both sources together in the same meaning was inconsistent, since the concept of persecution from the Hathaways work is much more liberal in comparison to definition of acts of persecution in the Qualifications Directive. This was explained by the Administrative Court in detail in judgments in cases of U 2488/05 and U 2558/05 of 30. 11. 2005 and U 2706/05 of 21. December 2005. In this context, the Administrative Court made a reference to the following case law of the ECJ:
Concerning the limits which Community law might impose on the obligation or power of the national court to interpret the rules of its national law in the light of the directive, it makes no difference whether or not the period prescribed for implementation has expired. In applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by it It follows from the primacy of Community law and from Article 5 of the Treaty that, even where a Member State decides to transpose a Community directive before the end of the period prescribed therein, such transposition must be consistent with the directive. The duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. The directive has a legal effect with respect to the Member State to which it is addressed from the moment of its notification. Since the purpose of the period by the end of which the laws, regulations and administrative provisions that are necessary for compliance are to have been brought into force, is to give Member States the necessary time to adopt transposition measures, Member States can not be faulted for not having transposed the directive into their legal order before expiry of that period. Nevertheless, it is during the transposition period that the Member States must take the measures necessary to ensure that the result prescribed by the directive is achieved at the end of that period. Although the member States are not obliged to adopt those measures before the end of the period prescribed for transposition, it follows from the second paragraph of article 5 in conjunction with the third paragraph of Article 189 of the Treaty and from the directive itself that during that period they must refrain from taking any measures liable seriously to compromise the result prescribed.
However, the Administrative Court went even further from these positions of the ECJ. Considering the circumstances in Slovenia, where there is no a definition of acts of persecution in national legislation and the “well-established” case law on this matter is, in the opinion of the Administrative Court, not consistent, there is an obligation of the first instance authority (until the Parliament would properly transpose the Qualifications Directive into national legal order) to strictly apply a definition of acts of persecution according to the text of the Qualifications Directive, despite the fact that the time limit for transposition of Qualifications Directive has no yet expired. The Administrative Court found three additional arguments for this interpretation in the EU law. Firstly, the Article 9(1) uses the term acts of persecution /…/ must be sufficient /…/”, which mean that, actually, it does not introduce a minimum standard; secondly, under the ECJ case law, where the directive in question is intended to accord rights to nationals of other Member States, even where the settled case-law of a Member State interprets the provisions of national law in a manner deemed to satisfy the requirements of a directive, that can not achieve the clarity and precision needed to meet the requirement of legal certainty. The Administrative Court stated, if this holds in the field of consumer protection, then it should be relevant in the field of asylum as well, where applicants (may) even defend their absolute human rights, although these are not rights of nationals of other Member States. Thirdly, the Administrative Court said that the text of the Qualifications Directive in the respected provisions is very exact and unconditional. However, the Supreme Court of the Republic of Slovenia stated that this interpretation of the Administrative Court is wrongful. In its argumentation, the Supreme Court stated that under Article 249(3) of the TEU a directive is not an obligatory legal source for national courts. Since the time limit for transposition of the Qualifications Directive has not yet expired, a party can not rely on this directive in order to invoke his/her rights. During the period when a directive is not yet transposed into national legal order, a national legal provision may be interpreted in the light of a directive, but this is not necessary. The Supreme Court made reference to the judgment of the ECJ in case 8/81, Becker v. Finanzamnt Münster.
Thus, we got two different approaches towards the principles of applying directive. The later is legally more relevant, since it is adopted by the highest court.