Test questions Flashcards
Personal legal status in UK
it always refers to some affirmative or positive entitlement under natural justice or statutory provision. Also, other legal situations qualified as “interests” whose safeguard is delegated to courts, have been identified alongside rights and legitimate expectations.
- The addressee holds a right, interest or legitimate expectation that may be more or less affected by an authoritative decision
- To act consistently with the appropriate procedural and substantial safeguards.
Difference between executive and executory measures
Executive refers to the public or ad personam notification of a measure.
Executory refers to a measure being directly enforceable by an authority. for example an expropiation.
Exceeded use of power refers to
. It usually refers to a lack of grounds supporting the final decision, being unreasonable as irrational, not-proportionate, contradictory in findings or because of misuse of power.
Explain phases of proceedings + procedural safeguards
Addressees v stakeholders
Adresee is the person that the notification was sent to of the administrative act.
the Adresee is one of the stakeholders, but the stakeholders are people that have a direct or indirect interest in the administrative act even if they are not the adresee.
Differences between opposing and demanding interests
Opposing interest —> a tangible stake held by someone adversely affected in keeping his/her legal status safe due to an infringement of the law caused by an authoritative decision
Legal properties of measures + difference between contracts and legal orders
Tied v discretionary measures
How to assess if a discretionary measure is consistent with the law
Does “bias” refer to exceeded use of power?
General expectations in common law system
Differences between personal right and personal legal expectations in common law
Locus standi (civ system)
Explain proceedings
Explain common standards
common features in administrative law internationally
Explain sanctions
Public authorities may be entrusted with the power to issue administrative decisions that are sanctionative under the law.
It is possible to see different sanctionative decisions:
- Ordering that a given infringement be brought to an end eventually along with remedies
- Ordering interim measures due to a risk of serious and irreparable damage to the public benefit
- Accepting commitments by the addresees
- Imposing fines as financial santions
- …
How to assess that a sanction is afflictive
The tangible nature of the sanction refers to its afflictive character rather than being compensatory or restorative. Indeed, the purpose of a sanction must mainly be preventive, suppressing and deterring to prevent similar conduct from being repeated and therefore, it must be punitive, deterrent and repressive.
In the case of afflictive sanction, it is relevant to ascertain whether the administrative proceeding - through which sanctions are imposed – is consistent with fair trial principles and safeguards preventing the addressee’s legal status from abuses.
How to assess that a sanction is criminal
a sanction is substantially criminal when it can influence the addressee’s social life and human relations (professional or personal), which – however – under the administrative law view, could be either a natural or legal person.
Legitimate expectations in common law system
Legitimate expectation
A legitimate expectation is a relience or confidence in a public authority’s behavior because of its previous conduct. It is based on reliance.
Exceeded use of power/ how to assess whether if a discretionary decision is affected by an exceeded use of power
Exceeded use of power: any illegitimate exercise of discretionary power due to a flaw of power’s cause/purpose or function. It can be because the decision is consist a deciation or distortion of administrative power, or not reasonable and irrational, consist a misrepresentation, inequity, misuse of power, measure contrasting with the public authority’s praxis
- Explain the difference between diffuse and collective interests
Diffuse interests: Indistictly spread over a community , a group of people without any differentiation amongst the members. Thus, no clear stakeholder is easily identifiable.
Collective interests: Belongs to some stable entity independently identifiable. Arises whenever a plurality of interests, yet referable to many people, is held by a specific, stable, organized third entity. If representative enough, the entity can stand before a court (sufficient interest).
- Sufficient interests under common law systems
Under UK law, no application for judicial review shall be made unless the applicant has a sufficient interest in the matter to which the application relates.
The provision aims to limit the number of claims against administrative decisions that could cause unnecessary administrative action interference.
a. When to consider?
Although standing is a preliminary issue, courts have held that, apart from the cases where the claimant’s interest is so tenuous that standing can easily be denied before the hearing of the merits, it will generally be determined with the merits of the case.
According to the House of Lords in the case IRC v. National Federation of Self-Employed and Small Businesses, standing consists of two steps:
Leave Stage: the court should refuse standing to anyone who appears to be a mere busybody or mischeaf maker
When leave is granted: the court may consider standing again as part of the hearing of the case merit, where it may decide that the applicant does not have sufficient interest
- Substantive legitimate expectation in common law system
Substantive legitimate expectation: Protection of the presumption that an office will make a lawful representation that an individual will receive some substantive benefit.
It is also important to take into consideration whether a representation has been intra vires or ultra vires. Ultra vires expectations should not leave room for legitimate expectation.
In other words, substantive legitimate expectations might not be supported if a statutory law entrusts a public agency with discretionary power to assess the relevant public benefit or interest over time. Which means that a sufficiently grounded different decision may prevent third parties’ expectations.
