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Prof. Jean-Bernard Auby
Director
Governance and Public Law Centre
13 rue de l’Université
75007 Paris
Tél.: 0(033)1 45 49 76 31/32
Fax: 0(033)1 45 49 76 30
Email:
23 May 2012
Public Interest Litigation and
Administrative Law
Taïwan Judicial Yuan, 25 May 2012
- Mapping the Issue
What does the question of “public interest litigation”, or “general interest litigation” , in (or and) administrative law mean?
My understanding:
To what extent do administrative litigation instruments and organization aim at, and manage to
-Give solution to individual disputes, repair or prevent individual harms that are caused or could be caused by the administration’s activity.
-And/or
-Make sure that administrative bodies respect the rules they must abide with, secure legal discipline in administration
Where an administrative litigation system concentrates on the first function it can be characterized as “subjective”, and it extends to the treatment of administrative disputes the logic of private litigation.
Where an administrative litigation system concentrates on the second function, it can be characterized as “objective”. It assigns to the disposal of administrative disputes a “public interest” or “general interest” which goes further than the case examined by the judge: protecting the rule of law in the administrative ambit, for the benefit of the whole society and not just of the plaintiff.
In fact, we will see that the two functions are always combined: what varies is the importance attached to each of them in one particular administrative law and the way they conciliate them.
Before elaborating a bit on these ideas, let us make clear what we mean by “administrative litigation”.
By this, we mean mainly, of course, the procedures of judicial review through which judges – either ordinary courts or a special set of courts- can review the legality of administrative acts and decide redresses –such as annulment- when these are found unlawful.
But we must also consider that, in some systems, administrative litigation also includes litigation about public contracts and administrative tortious liability. This is the case in French law where most of the corresponding litigation falls under the jurisdiction of administrative courts and is subject to specific procedures.
Thus, after analyzing our topic in the field of judicial review, we will briefly turn to the litigation concerning public contracts and non-contractual liability.
- “Objective” vs “subjective” function of judicial review: what does history say?
When administrative litigation –in its modern form at least- took birth, in coincidence with the growth of modern states in continental Europe during the XVIIIth and XIXth century (Prussia, France), the function it was assigned was predominantly an “objective” one: it was mainly a way for rulers to supervise what lower administrative officers did, through admitting the citizens to complain against the latter. Appeals made by the citizens against the first administrative courts – which were not really independent from the government: eg the French Council of State- was a means for hierarchical authorities to make sure that their instructions were obeyed.
Then, administrative litigation in the same states eventually acquired also the function of an instrument for the protection of citizens against administrative abuses. Administrative courts became more independent, their legality review technics improved, so that administrative litigation could not serve any longer just as a means for upper authorities to make sure that their policies were properly implemented. While keeping its “objective” function of seeing to it that rules were respected, it became a way of serving –subjectively- the solution of individual disputes.
The history of administrative litigation in common law countries is of course different. When overcoming the diceyan anathema, they evolved specific procedures for administrative litigation, these procedures remained widely immerged in the logic of private litigation, and kept a strong “subjective” character –one sign of which being their adversarial character, opposed to the mainly inquisitorial character of contentious procedures in the continental administrative laws-.
- Judicial review cannot be purely “objective” nor purely “subjective”
The core function of judicial review, what is was invented for, is to check the legality of administrative decisions. Having this basic function, it cannot be just about resolving a dispute between two parties. Not that it could not be also about that: but there will always be the “objective” stake of making sure that the administration remains between the borders of the rule of law.
Conversely, judicial review could not be just a norm-to-norm checking exercise. The flesh of concrete administrative litigation is necessary ingredient to it, and it was so even at the early stages of continental European administrative litigation: complaints made by citizens served as an alarm bell for rulers, informing them that some things went wrong in the administrative functioning.
Thus, in fact, all administrative litigation systems assume an “objective” function and a “subjective” one, they entail a share of “public interest litigation” and one of “private interest litigation”.
Variations are in the proportions assigned to the two functions.
- In practical terms, what does it mean for a judicial review system to be more or less “public interest litigation” oriented, to be more or less “objective”
It seems to me that the implications it has are situated at three levels.
1°. In terms of access to court
Strategic to the “objective” or “subjective” character are the rules on standing.
Where a system of administrative litigation is very much “public interest” oriented, it will open widely the access to court, requiring just that the plaintiff has an “interest” in getting the challenged decision quashed, or even simply in having the proper interpretation of the law in relation to an administrative situation affirmed by the judge.
Where a system is less “public interest” oriented, it will restrict the access to court to people who can claim that their individual situation is or could be directly affected by the administrative decision they challenge, or even that one of their subjective rights is or could be encroached upon by it.
2° In terms of conduct of the judicial procedure
The essential difference between “objective” and “subjective” systems rests with their “inquisitorial” or “adversarial” character, which is related to the attitude and the powers of the judge.
In adversarial systems, it is left to the parties to lead the procedure, to decide what aspects of the challenged decision will be discusses, to produce evidence. Thus, the case is tailored according to the private interests involved.
In inquisitorial systems, the judges are allowed to intervene actively in the procedure, insomuch as they can call upon evidence which has not been produced by the parties, sometimes even raise issues of legality the latter have not raised.
3°. In terms of final decision taken
In a more “objective” oriented system, what is mainly sought for is that the illegality be eliminated by quashing the decision, or simply indicating what the right legal solution is. Giving satisfaction to the private parties is less a priority. Judicial review is more about restoring the rule of law than about repairing wrongdoings.
On the opposite, in a more “subjective” system, what is mainly sought is to give satisfaction to the victorious parties by imposing on the administrative authority to restore the situation it troubled by its unlawful decision, as extensively as possible.
- Comparative administrative law shows examples of “subjective” systems
One can certainly find systems in which a marked “subjective” orientation of administrative litigation can be discerned.
When it comes to access to courts, the most well-known system of this kind is the German one, in which, in principle, one can challenge an administrative decision only if one can establish that a subjective right he or she possessed is threatened. Moreover, in German judicial review, the arguments plaintiffs can invoke in order to demonstrate the unlawful character of the decision they challenge must be based upon rules of which they can establish that they are aimed at their protection (schutznorm principle).
In common law systems, administrative litigation is subject to the usual adversarial character of the procedure, and thus arguments invoked as well as evidence produced are delimited by the parties, without any interference of the judge.
As to what courts can decide, both in common law systems and in the German one (and some others), it is often possible for parties to get from administrative judges a more satisfactory solution than simply the annulment of the challenged administrative decisions, through the injunction and declaratory powers these judges possess.
- The French system of administrative litigation is, by tradition, a mainly “public interest” oriented one
1°. It has kept from its initial features a predominantly “objective” orientation.
Access to administrative courts is not restricted to people who can claim that they will be or could be directly detrimented by the contested decision, let alone to people who can claim that one of their subjective rights is affected. It is open to everyone belonging to the “circles of interests” around the decision about which the judge accept that they could be affected by the decision.
The procedure before French administrative courts has a marked inquisitorial character, from which it derives that the judge can ask the parties questions they have not asked to each other, ask for evidence, and so on.
As for the decisions they can take in judicial review, French administrative judges were traditionally limited to an alternative (unless the claim was also on administrative liability: we will examine that later): quash the decision or reject the request.
2°. It must, however, be mentioned that “subjective “aspect have never be totally absent.
Thus, even if administrative judges are expected to be proactive in the conduct of the procedure, they normally cannot raise issues – find by themselves legal flaws in the challenged decision- which have not been mentioned by the parties. There is one exception to this: they can, on their own move, examine whether the decision conforms with what is termed “public order arguments “( “moyens d’ordre public”), a small number of very serious illegalities, for example the one deriving from the fact that the author of the decision was not entitled to issue it (“incompetence”).
- “Subjective” aspects are developing in the French system
Some recent evolutions in the French system of administrative litigation are strengthening its traditionally limited subjective aspects.
The main one results from the combination of two innovations. Firstly, since 1995, administrative courts have received from legislation the right to issue injunctions against the administration: previously, they did not possess this right, except in very specific situations. Secondly, another piece of legislation, adopted in 2000, settled a range of efficient interim procedures, where what existed previously was far from satisfactory.
Consequently, administrative courts are much better equipped to give satisfaction to private parties and really redress the consequences of illegalities they are affected by, and also do so within short delays: through the main interim procedure (“référé-supension”), people can have, within two or three weeks, the decision they challenge suspended and possibly also the administration ordered to do something (for example reintegrate until the final judgment the civil servant who is challenging his/her dismissal).
- Final remarks about administrative litigation outside judicial review
As recalled previously, in some systems – the French one is among them-, administrative litigation covers not only judicial review of administrative decisions but also litigation concerning public contracts and non-contractual liability of public contracts.
Obviously, this part of administrative litigation has naturally a strong “subjective” orientation since its function is essentially to compensate harms caused by the infringement of a contract or by a non contractual fault. Thus, in French administrative law, plaintiffs in those fields are required to establish that a right of them – and not just an interest-is imperiled. And litigation will be much less open: contractual litigation, for example, is essentially limited to the parties to the contract.
That is not to say that the “objective” aspect, the aim of disciplining the administration by the law is not present. It remains present in some rules, such as the one which prevents the judge from compensating a damage the administration has not be the cause of, even if it has admitted its responsibility.
Taïwan Judicial Yuan, 25 May 2012Page 1