On 21 November 2022, the Spanish supreme Court and ACA-Europe organised the seminar “The application of general principles and clauses in the case law of contentious-administrative courts” in Madrid, Spain.
The seminar was conducted according to a solid agenda that began with a brief introduction and welcome by the President of the Third Chamber of the Supreme Court of Spain, César Tolosa, followed by an address by Raffaele Greco, Section President of the Council of State of the Italian Republic, appearing on behalf of the President of the Council of State of the Italian Republic, Franco Frattini, who was unable to attend this meeting.
The actual working session began with an introductory statement by César Tolosa, who pointed out that while the structuring and vitalising role of general principles of law is essential in all areas of law, this is true to a much greater extent in the area of Administrative Law, where those responsible for its interpretation and application face an unstoppable tide of norms originating from different systems of sources: European, national, regional and local. Mr Tolosa also noted that the incorporation of general principles is primarily a case-law phenomenon, as is particularly apparent if we consider the issue from the global perspective of European Union law, whose general principles have certainly been identified and shaped primarily by the case law of the Court of Justice, but with emphatic attention paid to the constitutional traditions common to the Member States.
Next, Sandra Gonzalez de Lara, judge and coordinating lawyer of the Technical Directorate of the Spanish Supreme Court, gave an executive summary of the responses to the questionnaire that had previously been distributed to the representatives of the attending countries. After this, the three workshops provided for in the session programme were conducted.
The first workshop, entitled “General principles of law in the system of sources and their common incorporation through the European Union and horizontal dialogue”, was moderated by Carlos Lesmes Serrano, Judge of the Supreme Court and former President of the Supreme Court and of the General Council of the Judiciary of the Kingdom of Spain. The speakers were Carsten Günther, Judge of the Supreme Administrative Court of the Federal Republic of Germany; Lena Demetriades-Andreou, Judge of the Supreme Court of the Republic of Cyprus; and Barbara Pořízková, Vice-President of the Supreme Court of the Czech Republic. Each of the three speakers talked about the presence and significance of general principles of law in their respective national legal systems, detailing the impact of European Union law, and more particularly the case law of the CJEU, with examples of the legal practice of their courts. Special attention was paid to the process of adoption, affirmation and application of the principle of “legitimate expectation”, with each of the speakers talking about the importance of this principle in relation to other similar and associated principles, such as those of good faith and legal certainty and safety. Information was presented about the different approaches taken by the courts of each State with regard to the possible value of this principle of legitimate expectation for softening the rigour of the principle of legality in order to safeguard the good faith and legal certainty of citizens in their relations with the Administration. Following the contributions from the three speakers, the workshop moderator gave a recap of what had been said and illustrated the application practice of the Spanish courts in this regard. A fruitful debate then took place on the relationship – and possible contrast or conflict – between the principle of legitimate expectation and the principle of legality.
After a short break, the second workshop began, entitled “General principles and fundamental rights” and moderated by Yves Gounin, State Councillor of the Council of State of the French Republic. The speakers at this second workshop were Thomas Bull, Judge of the Supreme Court of the Kingdom of Sweden; András Patyi, Vice-President of the Supreme Court of Hungary; and Pablo Lucas Murillo de la Cueva, Judge of the Supreme Court of the Kingdom of Spain. All three highlighted the close relationship between general principles of law and fundamental rights, reporting – each from the particular point of view of their own domestic legal system – that in this regard there has been a process of gradual and uninterrupted legislative incorporation and positivisation of principles and rights, including at the highest constitutional level, in both substantive and procedural terms, due to their consideration and application in case law. Principles such as proportionality, equality, non-discrimination and good administration were also discussed, and emphasis was placed on the need to observe procedural principles and guarantees in the Administration's relationship with citizens in order to avoid situations involving a lack of defence representation. In this regard, Pablo Lucas pointed out that the general principles of law have outgrown the modest role of subsidiary source and become defining elements of the legal system, and outlined the twofold characterisation – not only subjective, but also objective – of fundamental rights whereby those fundamental rights and the general principles enshrined in them are established as structural elements of political society. After these addresses, there was an animated debate in which various observations were made on the role of the judge in the affirmation and application of general principles and fundamental rights, from the perspective of the existence or non-existence of constitutional courts in each country.
In the afternoon session, after lunch, the third and final workshop, entitled “General principles in certain sector-specific areas of public law”, was conducted under the moderation of Raffaele Greco, Section President of the Council of State of the Italian Republic. The speakers were Francis Delaporte, President of the Supreme Administrative Court of the Grand Duchy of Luxembourg; Viive Ligi, Judge of the Supreme Court of the Republic of Estonia; and Suzana Tavares da Silva, Judge of the Supreme Administrative Court of the Portuguese Republic. In keeping with the subject of the workshop, there was a marked case-law component to the speakers’ successive contributions, with a tour of cases brought before their respective courts where general principles of law had played a decisive role in the outcome. Attention was drawn specifically to the importance of the principle of transparency in relation to the use of new technologies and procedural decision-making involving the use of algorithms.
On completion of this third workshop, the seminar was concluded by the President of the Contentious-Administrative Chamber of the Supreme Court of the Kingdom of Spain, who, after providing a brief recap of the topics covered and the contributions made by the various speakers, noted the high scientific level of the day and the substantial nature of the debates that had taken place. This brought the seminar to a close.