IMGP6652 Photograph: Supreme Administrative Court of the Czech Republic

A seminar organised by the Supreme Administrative Court of the Czech Republic and ACA-Europe on Measures to Facilitate and Restrict Access to Administrative Courts was held in Brno, the Czech Republic, on September 9, 2019. On the eve of the seminar delegates met in the Moravian Karst, where they were welcomed by Michal Mazanec, President of the Court. Relating to the historic experience of former Czechoslovakia, he emphasised the importance of cooperation among European administrative jurisdictions. The visit of Punkva Caves and Macocha Abbys was enriched by Antonín Dvořák´s Largo from the New World Symphony performed by Lenka Bursíková, judicial assistant at the Court.

Nearly 35 members of Supreme Administrative Courts and Councils of State from 25 countries in Europe gathered in the building of the Court to search for a proportional solution of an ongoing tension between two principles: the right to a fair trial on the one hand and the efficiency of judicial review on the other. Furthermore, two distinguished guests from the Court of Justice of the European Union, Michal Bobek, Advocate General at the Court of Justice, and Jan M. Passer, Judge at the General Court, joined the session. The basis of the seminar was formed by the General Report, compiled by Zdeněk Kühn and Pavel Molek, academics and judges at the Court. The Report synthesised national reports provided by 23 jurisdictions. The seminar was opened by Barbara Pořízková, Vice-President of the Court. She thanked German Presidency for entrusting the Court with organization of the seminar. By asking how to face an increasing number of cases which are being brought before administrative courts and whether the barriers that stand in front of individuals demanding judicial protection are just and right, she framed the pattern of the seminar.

DSC 0979 Photograph: Supreme Administrative Court of the Czech Republic

First panel, moderated by Jan M. Passer, focused on the measures that restrict access to the administrative courts. Pavel Molek summarized the conclusions of the General Report. Countries try to prevent the flood of cases while adhering to the limits provided by Article 6 of the European Convention on Human Rights. He stressed that while some measures vary significantly among European administrative jurisdictions (e. g. court fees), others are rather similar (e. g. compensation of the cost of proceedings to the successful petitioner). In the majority of countries all decisions of public authorities are reviewable by administrative courts and at the same time the list of public authorities, whose acts are excluded from judicial review, is short. Majority of countries has also adopted measures in order to restrain the access to frivolous or abusive complaints. Yves Gounin, Delegate for International Relations at the Council of State of France, Aleksandrs Potaičuks, Legal Research Counsel at the Supreme Court of Latvia, and Theodora Ziamou, Associate Judge at the Council of State of Greece, highlighted particularly interesting features of their systems. Yves Gounin explained why court fees were abolished in France, coined that as a political issue and indicated that its second reintroduction in last few decades is being reconsidered. Aleksandrs Potaičuks pointed that in Latvia the court may request a brief summary of an extensive submission and that frivolous behaviour is a legal impediment to decrease the amount of a fee. He emphasised that restricting the access to some is working for the good of others. Theodora Ziamou presented in detail rules on the penalization of frivolous petitions via multiplication of fees and on monetary limits to the appeal.

IMGP6584 Photograph: Supreme Administrative Court of the Czech Republic

Second panel, moderated by Carsten Günther, Judge at the Federal Administrative Court of Germany, focused on the measures that facilitate access to the administrative courts. Zdeněk Kühn summarized the conclusions of the General Report. Among others, he paid attention to the rules on exemption from the duty to pay judicial fee, in particular regarding NGOs, which are exempted from the burden to pay the fee and are thus not forced to search for resources in order to be able to litigate in several “new EU” countries. Erik Kerševan, Justice at the Supreme Court of Slovenia, explained that the legislator has an extensive margin of appreciation in order to establish affordable level of court fees. Question of policy stands, who will bear the costs, while public resources should be taken into account. The amount of fee starts at the level that enables individuals to access to the court and should not exceed the amount the proceedings costs. If the access is free for individuals, moral hazard is at stake. Carsten Günther examined the German system of court fees. Their purpose is not to reduce the caseload, but to contribute to the costs of proceedings otherwise paid by the State. Fee is a principle; general exemptions apply in social and asylum cases and for public administration (specific rules are applicable before administrative courts due to diligent scrutiny of the case).

IMGP6650 Photograph: Supreme Administrative Court of the Czech Republic

Final panel, moderated by Kari Kuusiniemi, President of the Supreme Administrative Court of Finland, focused on the selection of cases by administrative courts. Zdeněk Kühn generalized the conclusions of the General Report. Two perspectives occur. First perspective sees access to the supreme courts as a privilege, while second perspective as a right. Since countries with no selection procedure don´t close gates of judicial review, they are obliged to deal with negligible cases. In addition, it seems that systems with strong constitutional courts are predetermined to force ordinary courts to (thoroughly) reason all their decisions; consequently so called supreme (administrative) courts are “supreme” only in name. In contrast, countries where they trust judges (both from outside and within judiciary) are not obsessed with control. Maarja Oras, Adviser to the Administrative Law Chamber at the Supreme Court of Estonia, and Kari Kuusiniemi highlighted features of their systems of selection of cases. In Estonia, a specific mechanism is applied at all levels of administrative courts, objective criteria of selection function especially against fraudulent or abusive claimants. In Finland, a new act will likely come into force in 2020, the system of leave to appeal will thus become the rule, whereas direct appeals the exception. Both, Estonian and Finnish, models are mixed. They emphasize their functions as law creators, but they serve also to correct gross mistakes of lower courts.

Michal Bobek provided closing remarks. Three themes underlined the seminar: i) hierarchy matters, ii) it seems more appropriate to achieve the restriction of access to the court by discretionary rules (rather than mechanical ones) and iii) courts are here to protect rights and freedoms of individuals, to render public service. While seeking for efficiency, one should thus bear in mind the image of the most efficient hospital from the famous British sitcom: the hospital without any patients. Consequently, he pointed out three ideas. Concerning the court fees analogy between administrative and civil law is broadly acknowledged; may one imagine analogy with criminal law? Compulsory representation, which guarantees the quality of proceedings, opens a question of costs; is different treatment of a State or an in-house lawyer legitimate? Selection of cases is a matter of substance, of the development of law; countries in transition towards selection of cases face three obstacles: distrust (system of distrust never creates trust by law), work (in contrast with intuition, selection means more work to do) and greed (ability to suppress personal jurisprudential greed).

Spolecna Photograph: Supreme Administrative Court of the Czech Republic

The seminar ended with the closing statement delivered by Klaus Rennert, President of ACA-Europe and the Federal Administrative Court of Germany. He emphasised the inspiring ideas which had arisen out of the discussion. The seminar closed the cycle opened by the seminar in Dublin and followed by the seminar in Berlin. It was thus tied to the previous themes, but at the same time opened the path for further debate.