Principles of Administrative Justice

Question 1

France - Legality Principle

Answer 1

Bloc de légalité:

1. Uncodified
2. Positive legality requires a legal basis for action
3. Negative legality asks for primacy of the law

Question 2

France - Proportionality

Answer 2

1. The judiciary is very cautious - Separation of powers
2. Cost-benefit analysis (society v. individual)
3. Only when a measure has no justification it will be used

Question 3

France - Principle of legitimate expectations

Answer 3

Switched to legal certainty (KPMG case):

1. Unlawful decisions can be withdrawn
2. Non-retroactivity of administrative acts
3. Change of rules requires transition period

Question 4

Germany - Legality Principle

Answer 4

Together with the principle of constitutionality:

1. Art 1(3) - Trias politica is bound by FdRs
2. Art 20(3) - Codifies the rule of law:
   - Positive legality - Admin can only act if authorised by law
   - Negative legality - Admin cannot breach the law
3. Art. 79(3) - Eternity clause, the two provisions above cannot be changed

Question 5

Germany - Principle of proportionality

Answer 5

1. Only when discretion
2. Suitability - Can the aim be reached by the means used?
3. Necessity and Subsidiarity
4. Proportionality - Weighing of interests

Question 6

Germany - Legitimate expectations

Answer 6

Concerning withdrawal of unlawful administrative acts:

1. Was it unlawful?
2. Was is beneficial? To the addressee
3. Can still be withdrawn but requires compensation
4. Time limit

Question 7

Netherlands - Legality Principle

Answer 7

1. Negative legality - Primacy of law

2. Positive legality - Requires a legal basis (both written and unwritten)

Question 8

Netherlands - Principle of proportionality

Answer 8

1. Only when discretion
2. Weighing of interests (community v. individual)
3. Necessity (=subsidiarity)

Question 9

Netherlands - Legitimate expectations

Answer 9

1. Nature of the irregularity - To show that the administration would not have taken that decision had it been aware of the error
2. Who is to blame for the error? If it is the administration, the courts are less likely to allow withdrawal
3. Knowledge of the interested party - Did the party know of the error?
4. The decision cannot be withdrawn if the activity for which it was granted has already been carried out
5. Date of withdrawal - The more time has passed since the publication of the act, the more difficult it gets to withdrawn

Question 10

England - Rule of law

Answer 10

1. Positive legality - Act requires that it is within the powers of the authority
2. Negative legality - The law applies equally to governed and governors

Question 11

England - Proportionality

Answer 11

Wednesbury - Unreasonableness test:

1. Is the measure so unreasonable that no reasonable authority would have taken it?
2. Very limited

Applied for FdRs

Question 12

England - Legitimate expectations

Answer 12

1. Procedural legitimate expectations - Must be honoured
2. Substantive legitimate expectations:
   - Administration promised something it cannot deliver - Follow the principle of legality, no protection
   - Administration promised something wrong but which it can do - Protection