Judicial review

Question 1

France - Judicial review

Answer 1

1. Contrôle minimum - Applied when statutory provision is imprecise (wide freedom of decision-making) - To check procedural and formal defects - Requires a ‘manifest error’
2. Contrôle ordinaire - The court will do a separate fact-finding evaluation
3. Contrôle maximum - The court will use the principle of proportionality when FdRs are at stake

Question 2

France - Proportionality

Answer 2

1. When contrôle maximum

2. Costs-benefit analysis - To balance the interests between the individual and the Community

Question 3

The Netherlands - Judicial review

Answer 3

1. Wide discretion to choose between different actions - Not fully reviewable, only proportionality will be checked - Only when there is such an imbalance of the weighing of interests that the administrative authority could not have reasonably come to that decision
2. Wide margin of interpretation - Not fully reviewable, only proportionality will be checked - The court cannot substitute its own assessment, it will only check that the one of the authority was reasonable

Question 4

The Netherlands - Proportionality

Answer 4

1. Weighing of interests - Is there a sound motivation? Are the adverse effects entirely disproportionate?
2. Subsidiarity

Question 5

England & Wales - Judicial review

Answer 5

1. Review is allowed when the decision was so unreasonable that no reasonable authority could ever have come to that decision - Wednesbury case

Question 6

England & Wales - Proportionality

Answer 6

Relation with judicial review is not really clear

Used when a Convention right or EU law is involved:

1. Is the aim of the measure sufficiently important to justify the limitation of a protected right?
2. Is the measure rationally connected to the aim?
3. Subsidiarity?
4. Balancing of interests

Question 7

Germany - Judicial review

Answer 7

1. Margin of interpretation - Fully reviewable unless the authorities have explicitly a margin of interpretation
2. Discretion - Judicial review is limited to discretionary errors (failure to use discretion, excess of discretion) - Proportionality will be applied if a FdR is at stake

Proportionality:

1. The measure must be suitable to achieve a legitimate interest
2. The measure must be necessary (= subsidiarity)
3. The measure must not be excessive in relation to the effects on the citizen involved

Question 8

France - Grounds for review

Answer 8

1. Incompetence
2. Procedural irregularity - Duty to listen, duty to give reasons, duty of explanation
3. Violation of the law:
   - Contrôle minimum
   - Contrôle ordinaire
   - Contrôle maximum
4. Abus de pouvoir - The administration acted against the purpose for which the power was granted

Question 9

England - Grounds for review

Answer 9

1. Illegality:
   - Mistake of jurisdiction
   - Abuse of discretion
   - Failure to exercise discretion
2. Irrationality:
   - Manifest unreasonableness
   - Unproportionality
3. Procedural impropriety:
   - Breach of express procedural requirement
   - Breach of implied procedural requirement

Question 10

Can the judge examine a violation of EU rights?

Answer 10

1. FR - NO
2. GR - YES
3. NL - YES
4. EN - YES