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A seminar organised by ACA-Europe and the Supreme Court of Ireland on ‘How our Courts Decide: The Decision-making Processes of Supreme Administrative Courts’ was held in Dublin on the 25th and 26th March 2019.  Before the seminar, more than 30 of the delegates availed of the opportunity to observe a hearing of an administrative law case in the Supreme Court of Ireland.

Over 40 members of Supreme Administrative Courts and Councils of State from 28 countries in Europe then gathered in the historic setting of Dublin Castle to discuss the processes and practices they each follow in reaching their decisions. The seminar was a companion seminar to that which will be hosted by the Federal Administrative Court of Germany on the topic of ‘Functions of and Access to Supreme Administrative Courts’ in May 2019. The sessions concerning various specific aspects of the decision-making practices of Supreme Administrative Courts and Councils of State allowed participants to compare and contrast the approaches taken in their own institutions and gain a better understanding of the processes of institutions in other ACA member and Observer institutions.

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The seminar opened with welcoming remarks from Mr. Justice Frank Clarke, Chief Justice of Ireland and Mr. Klaus Rennert, President of the Federal Administrative Court of Germany and of ACA-Europe. In the first session, Chief Justice Clarke presented the general report compiled by Irish academics, Dr. David Kenny, Trinity College Dublin and Dr. Áine Ryall, University College Cork at the request of the Supreme Court of Ireland. The general report, which formed the basis of the seminar, collated and synthesised national reports provided by 28 jurisdictions in response to a questionnaire which asked members and Observers of ACA-Europe to provide accounts of their processes and practices relating to their decision-making.

Chief Justice Clarke provided an overview of the general report and highlighted some universal trends illustrated by the national reports, such as: the increasing caseload of member institutions and measures adopted to cope with this; increasing use and reliance on research support; an ability to raise points ex officio in at least some circumstances; and the issuance of judgment in the name of the institution rather than any one judge in most jurisdictions. Divergence in a number of areas as referred to in the report were also noted, such as: differences in the number of judges, in the number of cases, the nature of the institutions and legal systems and the use and importance of oral hearings and dissenting judgments. The Chief Justice noted the methodological challenges associated with compiling the report, such as the difficulty in comparing data and trends across jurisdictions of varying legal traditions and difference languages and when figures relate to different timeframes or years and different categories of cases. There was therefore an opportunity for jurisdictions to clarify issues in the report.

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In the second session on ‘Research Practice’, chaired by Mr. Francis Delaporte, President of the Administrative Court of Luxembourg, four presenters outlined the availability, the nature of and the roles fulfilled by legal support staff in their institutions. Mr. Roger Stevens, First President of the Belgian Council of State, Mr. Bart-Jan van Ettekoven, President of the Administrative Jurisdiction Division of the Netherlands Council of State, Ms. Skirgaile Žalimienė, judge of the Supreme Administrative Court of Lithuania and Lady Hale, President of the Supreme Court of the United Kingdom highlighted particularly interesting and contrasting features of their systems. First President Stevens described the ‘double examination’ system in the Belgian Council of State, which involves a thorough preliminary examination by a body of magistrates known as the Auditorat and later the preparation of preliminary draft judgments by attachés. Mr. Gounin described a team effort in the Dutch Council of State, involving the drafting of judgments by support lawyers, the oral hearings by judges assisted by a support lawyers, judicial deliberation in chambers assisted by support lawyers, drafting of judgments by support lawyers followed by the decision made by the judge.

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Lady Hale explained the role of Judicial Assistants in the Supreme Court of the United Kingdom who provide bench memoranda summarising applications for permission to appeal, prepare summaries of cases and carry out research. Ms. Žalimienė referred to the work undertaken by assistants, consultants and advisors who provide administrative assistance and legal research support to judges of the Supreme Administrative Court of Lithuania, in addition the relationship of the Court with the Faculty of Law of Vilnius University which gives rise to interns serving as paralegals in the Court. There was lively discussion between all participants of the appropriate role and limits of research assistance.

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‘The Allocation of Roles of Decision-Makers’ was the topic of the third session, chaired by Mr. Kari Kuusiniemi, President of the Supreme Administrative Court of Finland. Mr. Filippo Patroni Griffi, President of the Council of State of Italy, Mr. Aleksandrs Potaičuks, Legal Counsel at the Supreme Court of Latvia and Mr. Jacek Chlebny, Vice President of the Supreme Administrative Court of Poland delivered presentations for this session which involved a discussion of the use and nature of chambers or divisions and areas of specialisation, the use of Grand Chambers or plenary sessions and the effect of the way in which roles are allocated to decision-makers on workload. The presentations highlighted interesting practices in some institutions, such as the organisation and functioning of the Plenary Assembly described by President Patroni Griffi, which is a special jurisdictional body of the Italian Council of State with a function of guaranteeing uniformity and stability of case-law in the administrative system.

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Vice President Chlebny provided an overview of how the allocation of roles is structured in the Supreme Administrative Court, an institution of 107 judges with three chambers consisting of two divisions, so as to deal with the workload of the Court. Mr. Potaičuks gave an account of the situation in Latvia, where the Department of Administrative cases does not have separate divisions, but rather each judge has his or her own area of specialisation. While cases are generally adjudicated by three judges, the law provides for referral of a case to a plenary sitting where the three judge court does not reach a unanimous opinion.

In the final session of the seminar, chaired by Ms. Justice Elizabeth Dunne, judge of the Supreme Court of Ireland, participants discussed ‘The Deliberative Process’, including whether oral hearings are used, whether and how often judges meet and judges and the way in which they discuss cases; whether the institutions can raise issues of their own motion and the use of dissenting opinions. Presentations were given by Mr. Yves Gounin, International Relations Delegate at the French Council of State, Mr. Carsten Günther, judge of the Federal Administrative Court of Germany, Mr. Magnus Matningsdal, judge of the Supreme Court of Norway and Ms. Helena Jäderblom, President of the Supreme Administrative Court of Sweden. This session shed light on interesting diversity of practice across the jurisdictions. For example, 11 jurisdictions have oral hearings in either all or most cases, while 11 countries have no oral hearings, which France sits in the middle, with oral hearings in 50% in cases. The roughly even division on the question of whether dissenting judgments are used provided an opportunity for lively exchange of views as to the merits of dissenting opinions.

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The seminar ended with concluding remarks by Chief Justice Frank Clarke and President Klaus Rennert who each noted the benefits which had arisen out of the seminar and the opportunity for further discussion in Berlin and on other occasions in the future of the procedures and practices which ultimately lead to the decisions of Supreme Administrative Courts and Councils of State.