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CARDS
2004 Twinning Project
Support
to more efficient, effective and modern operation and functioning of the
Administrative Court of the
Com=
ments on
the Draft Law on Administrative Court Procedure
Note:
All referrals to the Law on General Administrative Proceedings are based on=
the
draft from 18 September 2008.
Authors:
I.
Introduction
1. Status quo
The current Law on Administrative Disputes (LAD=
) is
mainly based on the Administrative Dispute Act of 1977 of the former
Socialist Federal Republic of Yugoslavia. This Act was adopted by the
In accordance with this law and the Law on Cour=
ts,
the status quo of the administrative judiciary is described as follows=
:
The Administrative Court of the
Over the last three years the number of incomin=
g cases
has been relatively stable (around 15,000/year) while the number of solved
cases has increased steadily. As a result, in the last two years the
year =
;
&=
nbsp; incoming
&=
nbsp; so=
lved &=
nbsp; pending
cases &n=
bsp; increase/
&nb=
sp; =
cases &=
nbsp; &nbs=
p; cases &=
nbsp; (1
January) =
; decrease
2006 =
; <=
/span>15,250 &=
nbsp; &nbs=
p; 14,612 &=
nbsp; 39,262 &=
nbsp; &nbs=
p; +
640
2007 =
; <=
/span>14,409 &=
nbsp; &nbs=
p; 15,874 &=
nbsp; 39,902 &=
nbsp; &nbs=
p; -
1,444
2008 =
; <=
/span>14,986 &=
nbsp; &nbs=
p; 16,622 &=
nbsp; 38,458 &=
nbsp; &nbs=
p; -
1,656
2009 =
; &n=
bsp; =
; &n=
bsp; =
; &n=
bsp; 36.802 &=
nbsp; &nbs=
p;
In 2008, the average duration of proceedings wa=
s 2 years
and 5 months, down from 3 years and 3 months in 2007.
The annual workload as established by the Minis=
try of
Justice is currently at 280 cases per year for judges and court advisors al=
ike.
The annual workload for the presidents of the three departments is reduced =
to 170
cases per year.
Cases are not assigned to judges and court advisors by a work schedule =
but
by the President of the
The chambers decide on cases following internal
deliberations without a public oral hearing. As a rule, the court does not =
establish
the facts of a case itself. If the court holds that the administration
insufficiently established the relevant facts, the court will repeal the
respective administrative act and refer the case back to the administrative
body which in turn has to issue a new administrative act which may again be
challenged before the court.
As a rule, the current Law on Administrative Di=
sputes
grants the
The back referral of cases to administrative bo=
dies
in many cases results in a second (in some cases even a third, forth …=
;)
action being filed in the same case after the administrative body has rende=
red
a new decision (“ping-pong effect”). This “ping-pong
effect” is one of the main problems of the administrative judiciary
because it prolongs the overall duration of proceedings. This term comprise=
s the
period from the first application before an administrative body until the
rendering of a final court decision. From the view of the citizen or an
investor that is the decisive period. In addition to that, it is the overall
duration of proceedings that is decisive for the question whether the durat=
ion
of proceedings violates the European Convention on Human Rights.
2. The need for a re=
form of
the administrative judiciary and a new Law on Administrative Court
Procedure
The efforts of the Administrative Court to deal=
with
its considerable case load and to continuously reduce the backlog of pending
cases with the available number of judges, court advisors and supporting st=
aff
as well as with the current legal provisions deserve full recognition. Neve=
rtheless,
a reform of the administrative judiciary is indispensable for the
following reasons:
- The current Law on Administrative Disputes is=
not
in line with EU-standards (acquis communautaire), thus being an obstacle on=
- The current Law on Administrative Disputes la=
cks
provisions for more effective court proceedings.
- And f=
inally the
draft bill for a new Law on General Administrative Procedure (LGAP) introdu=
ces
some new legal instruments which have to be considered in the new Law on
Administrative Court Procedure.
For more detailed information about the need to
reform please refer to the working group’s Strategy paper as well as =
to
the working group’s Drafting guidelines which were both adopted by the
Cabinet.
Since the proposed changes are quite fundamenta=
l, the
working group that drafted the new Law on Administrative Court Procedure
decided not only to amend the existing Law on Administrative Disputes =
but
to draft a completely new law.
3. Basic Principles for a new Law on Administra= tive Court Procedure
The new Law on Administrative Court Procedure w=
as
drafted based on the following basic principles:
a) Legal protection against all
administrative actions
The new Law on Administrative Cour=
t Procedure
provides legal protection against all administrative measures regardless of
their form (e.g. administrative acts, factual acts, non-observance of
administrative contracts). Moreover, all law suits concerning administrative
matters fall into the jurisdiction of the administrative courts. For further
details please refer to the comments on Art. 2.
b) Full jurisdiction on facts and =
law
Under the new Law on Administrativ=
e Court
Procedure administrative courts have full jurisdiction over facts and law. =
The restrictions
of the current Law on Administrative Disputes for the administrative
courts to establish facts were deleted. For further details refer to the
comments on Art. 3 para. 4, Art. 36 and Art. 50.
c) Mandatory oral hearings
Under the current Law on Administr=
ative
Disputes, the decision to hold an oral hearing is left to the discretion of=
the
d) Reformatory instead of only cas=
satory
decisions
The new Law on Administrative Court
Procedure not only grants administrative courts the competence to repeal
unlawful administrative acts (cassatory decision) but also empowers them to=
put
legal obligations on administrative bodies (reformatory decision), e.g=
. to
render an administrative act, to provide a certain information or to hand b=
ack
a seized object. For further details please refer to the comments on Art. 3
para. 5, Art. 12 and Art. 66 to 70.
e) Decision of appropriate cases b=
y a single
judge
In order to achieve a more efficie=
nt
deployment of judges, the new Law on Administrative Court Procedure re=
stricts
the size of chambers to three judges. In addition to that, chambers at first
instance courts are competent to transfer cases of lesser complexity and/or
importance to be decided by one of its members as a single judge. For furth=
er
details please refer to the comments on Art. 5.
f) Future structure of the adminis=
trative
jurisdiction
The new Law on Administrative Court Procedure f=
oresees
an independent administrative jurisdiction with two court instances.
Taking into account the geographical proportions of the
The new court structure demands
considerable additional resources for court buildings, equipment and
staff. This investment is, however, indispensable in order to be able to
effectively implement the necessary procedural amendments by the new Law on
Administrative Court Procedure. In particular mandatory oral hearings and t=
he
establishment of facts by the court are difficult to implement with only one
central court. Moreover, the new court structure would complement the Croat=
ian
Government’s decentralization policy and would bring administrat=
ive
courts closer to the citizens.
4. Further innovatio=
ns
In addition to the above listed principles the =
new
Law on Administrative Court Procedure contains several further innovat=
ions.
The most important are:
- New system of actions including legal protect=
ion
against general acts (Art. 12, 19, 66 to 70, 74)
- Pre=
vention
of delays in proceedings (Art. 43, 80)
- Second instance as appeal instance (Art. 77 et
seq.)
- Effective “filter” between first =
and
second instance (Art. 77 para. 1)
- Provisional court protection (Art. 88 et seq.=
)
- Costs of litigation (Art. 93 et seq.)
- Efficient enforcement of court decisions (Art=
. 107
et seq.)
- Electronic communication (Art. 27 to 30)
5. Legislative techn=
ique
The new Law on Administrative Court Procedure p=
refers
general and abstract norms rather than detailed ones, making use of indefin=
ite
legal terms like e.g. “complications of a factual or legal natureR=
21;
(Art. 5 para. 2, Art. 46 para. 1), “general importance” (Art.&n=
bsp;5
para 2, Art. 77 para. 1 No 2), “reasonable interest” (Art. 12 N=
o 3)
or allowing the court to decide on procedural matters at its discretion (e.=
g.
Art. 5 para. 2, Art. 22 para. 1, Art. 39 para 1 sentence 2, Art 43 para. 1 =
to
3, Art 45 para. 2 etc.). This approach was chosen to provide the courts
with the necessary flexibility to decide on a wide variety of cases. The
reality often is too complex for closely defined provisions.
In addition to that, even the best legislator i=
s not
able to foresee every single concrete case whilst formulating a law. T=
his
fact leads to the consequence that in many cases even thoroughly drafted
definitions will result in legal gaps, whereas an indefinite law term
would comprise these cases.
Therefore, the modern doctrine of legislation has been moving more and more to short laws, making use of general and abstract legal terms. This legislative approach has the following advantages:
- Laws are shorter, have a clearer structure and are easier to understand and to apply.
- General and abstract legal term= s cover a wider range of cases, i.e. also those cases the legislator was not able to anticipate. Such laws remain operational for a longer period of time and ga= ps in the law are less probable.
6. Remarks
Due to structural differences between Croatian =
and
English, many legal terms and sometimes even whole passages could not be
translated word by word but had to be paraphrased. The main objective of the
translation team, which consisted of a professional translator, three
judges from the
All referrals to the Law on General Administrat=
ive
Procedure in the draft for a new Law on Administrative Court Procedure as w=
ell
as in these comments refer to the respective draft as of September 2008.
Deviating from the project assumptions this law has not yet been passed by
Parliament. The two subsequent drafts as of January 2009 and February 2009 =
were
not submitted to the working group for the draft of a new Law on Administra=
tive
Court Procedure in English.
For a comprehensive assessment of the impacts o=
f the
new Law on Administrative Court Procedure and recommendations for the smoot=
h implementation
of this law please refer to the report “Impact assessment of the draft
for a new Law on Administrative Court Procedure and recommendations for
its implementation”.
II.
Comments
Table of contents
The table of contents is part of the law and en=
ables
persons who do not apply the Law on Administrative Court Procedure on a dai=
ly
basis to get a quick overview on the content of the law and to find certain
provisions.
Part 1 &=
nbsp; General
provisions
Article 1 Goals
of the law
Art=
. 1
defines the (main) goals of the Law on Administrative Court Procedure: the
protection of individual rights and legal interests as well as to ensure the
legality of administrative measures.
In =
the
European tradition, judicial protection by administrative courts in princip=
le
has two different objectives. On the one hand the protection of individual
rights and legal interests and on the other hand the surveillance of the
legality of administrative measures. While the German tradition emphasizes =
the
protection of individual rights, the French tradition tends to focus on the
objective control of the legality of administrative measures.
The=
present
draft – following Art. 2 para. 1 of the Law on Administrati=
ve
Dispute (LAD) – emphasizes the protection of rights and legal interes=
ts:
Art. 14 para. 1 requires that the plaintiff claims a violati=
on
of his rights or legal interests and an action can only succeed when these
rights or legal interests in fact are violated (Art. 66 para. 1,
Art. 68, as well as Art. 67 para. 1, 69 and 70,
“entitled”). Consequently, it is not sufficient for the success=
of
an action that the challenged administrative measure is unlawful.
The
protection of individual rights and legal interests also serves the protect=
ion
of legality, since decisions issued by administrative courts are an importa=
nt
orientation for administrative bodies. So in practice, many decisions that =
were
issued to solve a particular conflict in the first place, become essential
guidelines for the decision of other, often hundreds or thousands, similar
cases.
Und=
er Art.
2 para. 4, 21 and 45 et seq. LAD the department of public prosecution can f=
ile
an action or a special legal remedy against decisions of the
- A=
ctions
or legal remedies filed by the department of public prosecution in practice=
do
not play a great role: During 2006 to 2008 only 66 of the about 45.000 acti=
ons
filed before the
- T=
he
(partial) abolition of the right of the department for public prosecution d=
oes
not mean that unlawful administrative acts cannot be repealed: If the office
for public prosecution gets notice of an unlawful administrative act, it ha=
s to
inform the supervisory body of the administrative body who has issued =
the
respective act. Under Art. 103 para. 3 ZUP the supervisory body is entitled=
to
revoke any administrative act that clearly violates material law. This solu=
tion
also has the advantage that the administrative body may do so within t=
hree
years (Art. 103 para. 4 LGAP), while the deadlines for an action or a
legal remedy filed by the department of public prosecution under the L=
aw
on Administrative Disputes are much shorter (between 30 days and three mont=
hs,
cp. Art. 24 and 46 LAD).
According to EU-law, member states also have to
ensure judicial review of decisions of administrative bodies in the
implementation of EU-law (ECJ case 265/78, Ferwerda, para. 10, case
C-465/93, Atlanta FruchthandelsgesmbH). In the exercise of their control, i=
t is
the task of the national courts – pursuant to the principle of coop&s=
hy;eration
laid down in Article 10 EC – to ensure the legal protection which per=
sons
derive from the direct effect of provisions of EU-law (ECJ, case C-213=
/89,
Factortame and others, para. 19, and case C-432/05, Unibet, para. 37).
Therefore, once
The requirement of judicial control of any deci=
sion
of a national authority (that might infringe rights derived from EU-law)
reflects a general principle of EU-law stemming from the constitutional
traditions common to the Member States and enshrined in Articles 6 and=
13
of the European Convention for the Protection of Human Rights and Fundament=
al
Freedoms (ECJ, case 222/84, Johnston, and case C-97/91 Oleificio Borelli v
Commission, para. 14).
Article 2 Scope
of the law
Art=
. 2
defines the scope of the Law on Administrative Court Procedure.
The=
Law on
Administrative Court Proceedings applies in administrative court proce=
edings
(para. 1). These proceedings comprise all proceedings concerning admin=
istrative
matters unless such a matter is assigned by law to any other court than an
administrative court (para. 2). The term „administrative matter“=
; is
defined in Art. 2 of the Law on General Administrative Procedure (LGAP):
(1) Administrative mat=
ter is
any matter in which an administrative body in administrative proceedings
decides about rights, obligations or legal interests of individuals, l=
egal
persons or other parties (further: parties) directly applying laws, ot=
her
regulations and other acts which are governing the respective administrative
field.
(2) Administrative mat=
ter also
is any matter in which it is stipulated by law to issue a decision or to
conclude an administrative contract.
The=
use of
the term “administrative matter” is the most important link bet=
ween
the Law on General Administrative Procedure and the Law on Administrative C=
ourt
Procedure. This link assures that the scope of cases decided by
administrative bodies on the administrative level and by administrative cou=
rts
on the judicial level is – as a rule – congruent.
How=
ever,
the legislator may deviate from the strict congruence between the applica&s=
hy;tion
of the Law on Administrative Court Procedure, administrative court proceedi=
ngs
and administrative matter as foreseen in para. 2. Para.2 also allows the
legislator to assign any administrative matter to other courts. By such an
assignment, court proceedings concerning these matters are excluded fr=
om
the definition “administrative court proceedings” (para. 2). An
example for such an assignment is the assignment of expropriation cases to =
the
county courts (Art. 42a of the Law on Expropriation).
Fur=
thermore,
the legislator may also decide (para. 3) that
- t=
he Law
on Administrative Court Procedure has to be applied by other courts (e.g. A=
rt.
42 b of the Law on Expropriation),
- a=
nother
code of procedure has to be applied by the administrative courts.
Com=
pared to
the Law on Administrative Disputes (LAD) the protection before adminis=
trative
courts is broadened: Art. 6 para. 1 LAD restricts court protection in admin=
istrative
matters to the review of the legality of administrative acts. Art. 66 and 67
LAD extend judicial protection to other individual administrative measures
which do not qualify as an administrative act, but only if the plaintiff cl=
aims
a violation of certain constitutional rights. By contrast, para. 2 extends
judicial protection by administrative courts to all administrative matters,
regardless of the type of the challenged administrative measure. The
reason for this is that administrative bodies may not only interfere w=
ith
individual rights by administrative act but also by other forms of administ=
rative
measures, like e.g. factual acts or the non-observance of administrative co=
ntracts.
The=
most
important change of jurisdiction caused by para. 2 concerns cases in which =
an
administrative body does not comply with an administrative act is has issue=
d or
a court decision. Until now, such cases fell into the jurisdiction of the c=
ivil
courts. Under para.2, both cases fall into the jurisdiction of the
administrative courts: In the case of non-compliance with an Administrative
act, an action for performance (Art. 12 No 4) can be filed; in the case of
non-compliance with a court decision, enforcement proceedings can be
instituted (Art. 107 ff).
Man=
y laws
regulating special fields of administrative law contain provisions that as&=
shy;sign
cases concerning the respective field of administrative law to the
administrative courts. Because of the abstract definition of the term
„administrative court proceedings“ these provisions are
obsolete, because they only repeat what is already stipulated in para.=
1
and 2. Over the next years, the legislator should try to delete these
provisions.
Article 3 General
principles
Art. 3
contains the most important principles of the Law on Administrative Court P=
roceedings.
The provision can be referred to as “LACP in a nutshell”:
Administrative
court proceedings have to be conducted in conformity with the principl=
e of
fair trial as laid down in Art. 6 of the European Convention on Human Rights
(ECHR), especially
- t=
he
principle of equality of arms,
- t=
he right
to inspect files (cp. Art. 42),
- t=
he right
to offer evidence and the right to be heard on all facts and evidence (cp. =
Art.
35), and
- t=
he right
that administrative courts give reasons for their decisions (cp Art. 63, 76=
).
The
principle of equality of arms implies that each party must be afforded a re=
asonable
opportunity to present his/her case – including evidence – under
conditions that do not place him/her at a substantial disadvantage compared=
to
his/her opponent. This e.g. implies that the content of any communication b=
etween
the court and one of the parties (e.g. instructions according to Art. 33 pa=
ra.
3 or advice according to Art. 38) is made known to all other parties.
As far
as “civil rights and obligations” are the subject of proceeding=
s,
Art. 6 ECHR guarantees a public hearing before at least one court instance.=
The
term “civil rights and obligations” is interpreted broader than
under most national laws and comprises many fields of law that in many nati=
onal
systems are classified as public law. For example, the European Court =
of
Human Rights has classified the following proceedings as “civil”=
;:
-
proceedings concerning a permission, license or the like which is required =
for
the practicing of a profession, the running of a business or the carrying o=
ut
of any other economic activity,
-
proceedings which have direct consequences for the right of ownership with
respect to property or the use or the enjoyment of property (e.g.
expropriation, planning, issuing of building permits), or
-
proceedings concerning social security benefits (e.g. health insurance, work
accident insurance, welfare allowances, state pensions).
According
to Art. 4 and Art. 2 para. 1 and 2, these proceedings – as before =
211;
fall into the jurisdiction of the administrative courts.
In addition
to that, public hearings guarantee transparency and are a probate means to
strengthen public trust in the work of the courts. Therefore, Art. 3 para. 2
guarantees a public oral hearing before at least one court instance
regardless whether the subject of the dispute has to be classified as
“civil” in the sense of Art. 6 ECHR or not.
Art 3
para. 2 only states a basic principle. The details, including exceptions, a=
re
regulated in Art. 45, 46 and 80.
Following Art. 6 ECHR, Art. 3. para. 3 stipulates the obligation of the
courts to conclude proceedings within reasonable time. Proceedings can=
be
concluded by a decision of the court (Art. 58) but also because of a
withdrawal of the action by the plaintiff (Art. 51), an acknowledgment=
of
the claim by the defendant (Art. 52) or a court settlement (Art. 54).
Before it can be decided whether proceedings were concluded in due time,
the relevant period has to be defined. As a rule, the relevant period
begins at the moment the respective proceedings are instituted, i.e. the mo=
ment
an action is filed. However, if prior to court proceedings further procedur=
al
steps are required, e.g. the filing of an appeal in front of an administrat=
ive
body (cp. Art. 110, 134 and 136 LGAP), the European Court of Human Rig=
hts
shifts the beginning of the relevant period to the filing of these
proceedings.
The relevant period ends when the uncertainty concerning the disputed r=
ight
or obligation ends. That is the moment in which the court decision has
become final, regardless whether further legal remedies are not provid=
ed
for or whether the deadline for the filing of such remedies has expired.
Consequently, appeal proceedings have to be included into the relevant peri=
od.
The same applies to proceedings before a lower court or administrative inst=
ance
in case the challenged decision is revoked and the case is remanded to a lo=
wer
court or administrative instance to be decided anew.
Whether proceedings were concluded within reasonable time can not be
answered in the abstract but only on a case-by-case basis. The European Cou=
rt
of Human Rights decides this question based on a detailed review of the cou=
rse
of the whole proceedings taking into account the following criteria: t=
he
complexity of the case, the conduct of the applicant, the conduct of the co=
urt
or other public authority conducting the proceedings and the significance of
the proceedings for the applicant.
Art. 6 ECHR requires as well that in principle evidence has to be produ=
ced
before the parties and can be challenged by them. In order to meet this
requirement, Art. 3
para. 4, Art. 50 and Art. 78 para. 2 determine that the administrative
courts of first instance as well as the
However, this does not mean that the court has to begin with the
establishment of the facts from the beginning. On the contrary, Art. 3 para. 4 allows t=
he court
to make use of those facts that have already been established by the
administrative body as far as the court adopts the formers findings as its =
own,
e.g. – but not restricted to – in cases, when certain facts are=
not
disputed by the parties, or when the evidence collected by the
administrative authority is a sufficient basis for the determination of fac=
ts
by the court.
Under the Law on Administrative Disputes the
Art. 3 para. 5, Art. 12, Art. 19, Art. 66 to 70=
and
Art. 74 significantly broaden the judicial powers of the administrative
courts. Under the new system of actions, the courts are competent to
- repeal an administrative act which imposes a =
burden
on the plaintiff (Art. 12 No 1, Art. 66),
- order an administrative body to issue an
administrative act which grants a right to the plaintiff (Art. 12 No 2,
Art. 67),
- declare that an administrative act which has =
lost
its legal consequences was unlawful (Art. 12 No 3 and Art. 68),
- order an administrative body to act (e.g. pay=
ment
of money or return of confiscated goods), to tolerate a measure or to omit a
measure (Art. 12 No 4, Art. 69),
- declare the existence or non existence of a l=
egal
relationship, the nullity of an administrative act or the nullity of an
administrative contract (Art. 12 No 5, Art. 70),
- d=
eclare a
general act which is not comprised by the term “other regulationsR=
21;
in Art. 128 indent 2 of the Constitution of the
Art=
. 12 No
2 and 4, Art 67 and Art. 69 substantially reduce the above mentioned “=
;ping
pong effect” by enabling the administrative courts not only to decide=
on
the lawfulness of administrative measures but also on the measure itse=
lf.
The reduction of the “ping-pong effect” will result in a shorter
duration of proceedings (as defined in the comments on para. 3) and in a
reduction of the number of incoming cases. Because of these effects, the st=
ep
from a mere cassatory to a reformative system is one of the most important
steps in the reform of administrative court procedure.
Part 2 &=
nbsp; Organization
of the administrative jurisdiction
Article 4 Administrative
courts
Art=
. 4
para. 1 establishes a two tier system with four administrative courts of fi=
rst
instance and a
For=
the
courts of first instance the following court districts are proposed:
Administrative Court in Osijek: territory of the
Brodsko-posavska, Osječko-baranjska, Požeško-slavonska,
Virovitičko podravska and Vukovarska-srijemska counties and the cities=
of
Daruvar and Grubišno Polje and the municipalities of Dežanov=
ac,
Đulovac, Hercegovac, Končanica, Sirač, Veliki Grđe=
vac,
Velika Pisanica and Velika Trnovitica from the Bjelovarško-bilogarska
county.
Administrative Court in Rijeka: territory of the
Istarska, Primorsko-goranska and Ličko-senjska counties and the city of
Ogulin and the municipalities of Bosiljevo, Josipdol, Plaški,
Saborsko and Tounj from the Karlovačka county.
Adm=
inistrative
Court in Zagreb: territory of the City of Zagreb, the Koprivničko=
-krizevačka,
Krapinsko-zagorska, Međimurska, Sisačko-moslavačka,
Varaždinska and Zagrebačka counties, the cities Duga Resa, Karlov=
ac,
Slunj and Ozalj and the municipalities Barilović, Cetingrad,
Draganić, Generalski Stol, Kamanje, Krnjak, Lasinja, Netretić,
Rakovica, Ribnik, Vojnić and Žakanje from the Karlovačka cou=
nty
and the cities Bjelovar, Čazma and Garešnica and the municipaliti=
es
Berek, Ivanska, Kapela, Nova Rača, Rovišće, Šandrovac,
Severin, Štefanje, Veliko Trojstvo and Zrinski Topolovac from the
Bjelovarško-bilogarska county.
The=
main
criterion for the division of court districts was the distance to the admin=
istrative
court of first instance so that all citizens live in a reasonable distance =
to
the next such court.
The=
ratio
legis of Art. 4 para.2 is the protection of the independence of the adminis=
trative
jurisdiction. Administrative courts must not be a part of public administra=
tion
but have to be organized as independent judicial bodies.
In =
order to
protect their independence, no administrative tasks – except tasks of
court administration – should be assigned to administrative courts.
Otherwise judges of the same court would have to control the decisions of t=
heir
colleagues.
The
organizational separation as well as the separation of tasks are also of
special importance with regard to the perception of the work of the
administrative courts by the public. Maximal separation is an indispensable
condition for public trust in the impartiality of the administrative courts=
.
Article 5 Composition
of administrative courts
Und=
er the
current Law on Administrative Disputes, all decisions have to be taken by a
chamber of three (Art. 3 para. 2 LAD), in some cases even five judges (Art.=
54
LAD). These strict rules do not allow an efficient deployment of judges.
Therefore, the draft foresees that decisions can be taken by a single judge:
According to Art. 40 certain decisions, which are not decisions on the meri=
t,
have always to be decided by the reporting judge. This provision is
complemented by Art. 5 para. 2, which – under certain conditions R=
11;
allows the assignment of cases pending at the administrative courts of first
instance to a single judge.
As =
under
Art. 3 para. 2 LAD decisions are taken by a chamber of three judges. A pane=
l of
five judges (cp. Art. 54 LAD) is not foreseen anymore.
- O=
nly
“easy” cases may be assigned, i.e. cases that do not display any
particular complications of a factual or legal nature.
- O=
nly
cases that are not of general importance may be assigned to the single judg=
e. A
case is of general importance if the decision is of relevance for further
cases. This is the case e.g. if no case law on a certain legal question so =
far
has been established, if courts of first instance have decided the same
legal question in a different way or if the case is of special public inter=
est.
A case that only raises a legal question that is clearly regulated by law in
principle is not of general importance.
The=
two
aforementioned requirements have to be met cumulatively.
In
practice, the ruling on the assignment does not necessitate a chamber sessi=
on
but can be taken in a written procedure (per rolam): The reporting judge dr=
afts
the respective ruling and then sends it together with the file to the
presiding judge and further to the third judge. Only if one of the jud=
ges
has doubts about the assignment to a single judge, the judges should meet f=
or a
short, informal discussion of the case.
If a
provision stipulates that a certain measure, in particular a procedural
decision, falls into the competence of the presiding judge (e.g. Art. 47 pa=
ra
1), these actions fall into the competence of the single judge once the case
has been assigned to him.
The=
ruling
to assign a case to a single judge cannot be appealed (sentence 2). How=
;ever,
in extreme cases, the judgment issued by the single judge can be appealed
(Art. 77 para. 1 No 4) with the argument that this judgment is based o=
n a
procedural deficiency because it was arbitrarily assigned to the single jud=
ge.
On the other hand, an appeal against a judgment of the chamber cannot be ba=
sed
on the fact that the case has not been assigned to a single judge (sentence=
3).
In such a case the parties rights are not affected because a right tha=
t a
case is assigned to a single judge does not exist.
A reassignment of a case to the chamber by the single judge is not
possible because this is not foreseen by law.
Part 3 &=
nbsp; Jurisdic=
tion
Article 6 Jurisdiction
of administrative courts of first instance
Because of the new two tier structure (Art. 4 para. 1) the jurisdic=
tion
of the courts of first instance on the one side and the
Article 7 Territorial
jurisdiction
Art. 7 answers the question to which of the four courts of first
instance courts a case is assigned. Art. 7 para. 1 to 4 contains =
four
respective criteria:
- locus rei sitae (para. 1)
- home port or home airport (para. 2)
- legal residence (para. 3) and
- seat of the first instance administrative body (para. 4).
The regulations in para. 1 and 2 are justified since as a rule=
the
proximity of the local court will facilitate the proceedings, especially if
evidence has to be taken.
The term “legal issue connected to a certain place”
includes e.g. matters regarding the operation of a business or the performa=
nce
of any other activity in a certain place, the construction of buildings or =
the
approval of flight routes to an airport. The term also comprises taxes on or
other duties connected to immovable property or another place.
The regulation in para. 3 on the one hand guarantees, that in
respective cases the plaintiff can proceed before the court nearest to him/=
her.
On the other hand, this provision prevents the concentration of too ma=
ny
cases before the
If a case does not fall=
under
one of the aforementioned specific rules, the subsidiary rule in para. =
;4
applies. This provision e.g. comprises cases concerning matters falling und=
er
para. 3 if the plaintiff has neither a legal nor a habitual residence =
nor
a seat in the
A court
is prevented from exercising its jurisdiction for legal reasons e.g. when a=
ll
of its members in a certain case are excluded because of doubts regarding t=
heir
impartiality (Art. 71 No 7 Civil Procedure Act; CPA). Factual reasons
could be the consequences of catastrophes or illness of the members of=
the
court.
The
Article 8 Jurisdiction
of the Supreme Administrative Court of the
The
The
assignment of the matters enumerated in para. 2 is justified as these
matters usually are of above average importance and sometimes also politica=
lly
sensitive.
Article 9&nbs=
p; Referral
of cases between administrative courts
The rulings under para. 1 to 4, as all other rulings, can be
issued without oral hearing (Art. 45 para. 3). However, the parti=
es
have to be heard in advance (Art. 35).
Para.2:
As a rule, a court may accept its jurisdiction without the issuing =
of a
respective ruling by just continuing with the proceedings (e.g. service of =
the
action to the other parties). Only if the jurisdiction of an
administrative court of first instance is contested by one of the parties, =
this
court has to decide on its jurisdiction by ruling. This ruling can be appea=
led
with a complaint (Art. 81 para. 1).
According to para. 3, the
Para.4:
According to para. 4, the
Article 10&n=
bsp; Referral
of cases to courts of other jurisdictions
Art. 10
largely corresponds to Art. 9 with the difference that it concerns the
referral of cases to courts of other jurisdictions. Deviating from Art.&nbs=
p;9
para. 2, Art. 10 para. 2 also applies to the
According to Art. =
23 para.
2 CPA conflicts of jurisdiction between courts of different jurisdictions as
e.g. conflicts of competence between administrative courts and courts of another jurisdiction sha=
ll be
decided by the Supreme Court of the
Article 11 Forwarding
of cases to the Constitutional Court of the
If
a case falling into the jurisdiction of the
Part 4 &=
nbsp; Types
of actions
Article 12 Types of ac=
tions
The
ratio legis of Art. 12 is to give the reader of the law an overview of the
goals that can be achieved with an action. In that respect Art. 12 correspo=
nds
to Art. 6 para. 1 and Art. 66 LAD which have a similar function. The conten=
t of
the operative part of the judgment on the respective types of action is
regulated in Art. 66 to 70.
The
following goals can be achieved with an action:
- the repeal of an administrative act
(action for the repeal of an administrative act, No 1),
- the issuance of an
administrative act, which has been refused or omitted (action for the
issuance of an administrative act, No 2),
Art. 12
does not limit Art. 2. That means that an action that fulfils the definition
„administrative court proceedings“ may not be judged
inadmissible because the types defined in Art. 12 do not seem to cover the
respective action. Instead, one of the types provided for in Art. 12 has to=
be
interpreted extensively.
The
different actions are not to be understood as strict and separated types. If
the court gains the impression that the petition formulated by the plaintiff
(Art. 33 para. 2 No 1) does not correspond to the aim of his action (Art. 33
para. 1 No 3), it is the task of the court to help the plaintiff to formula=
te a
corresponding petition (Art. 38). Only if the plaintiff in spite of the hel=
p of
the court insists on a certain petition may the action as the case may be
dismissed as inadmissible.
Different
types of actions may also be combined if this is adequate to cover the plai=
ntiff’s
claim and the requirements of admissibility of the respective types of acti=
ons
are fulfilled.
No 1:
The action for the repe=
al of an
administrative act may only be instituted against a disadvantageous
administrative act. Disadvantageous is any administrative act that im&sh=
y;poses
a duty on somebody, e.g. the payment of a fee, the confiscation of an objec=
t or
the tearing down of an illegally erected building. The issuance of an
administrative act has to be sought with an action under No. 2.
The Law
on Administrative Court Procedure does not contain a definition of the term
“administrative act”. This definition is given in Art. 96 LGAP.=
No 2:
If the
plaintiff seeks the issuance of an administrative act, No 2 applies. No 2 c=
omprises
the following cases:
- The
plaintiff applies for a beneficial administrative act. Beneficial is any
administrative act that constitutes a right like e.g. the right to rec=
eive
a pension or the right to erect a building.
- No 2
also applies if an administrative body issues a beneficial administrative a=
ct
that grants the plaintiff less than he applied for, e.g. if the plaintiff w=
ants
a pension to the amount of 4000,- HRK per month and the administrative body
granted him a pension to the amount of 3000,- HRK per month.
- The
plaintiff may also ask for the issuance of an administrative act that impos=
es a
duty on another person, e.g. the order to tear down a house that was built
illegally.
No 2
comprises the refusal to issue as well as the omission of an administrative
act. However, in the case of an omission (=3D administrative inaction), the
special provisions in Art. 16 apply.
No 3:
In many cases an administrative act has already lost its legal
consequences at the time the court decides on an action.
Examples=
:
a) The
plaintiff applies to sell goods on a Christmas market (December 2007). His
application is refused. The court decides on the case in July 2008.
b) The
Minister of the Interior forbids a demonstration which is planned for 18 Ju=
ne
2008. The court decides on the case in August 2009.
c) The police confiscate a certain object. The court decides after =
the
police have returned the confiscated object.
Without the provision under No 3 the action in those cases would be
inadmissible. An action for t=
he
repeal of an administrative act or an action for the issuance of an
administrative act would be inadmissible since at the time of the court
decision the plaintiff does not anymore have a legal interest in the rev=
ocation
of the challenged administrative act (e.g. the confiscation) or the issu=
ance
of an administrative act (e.g. the license concerning the participation at =
the
Christmas market). No 3 allows the plaintiff – provided the challenged
decision was unlawful – to receive a respective declaration by the co=
urt,
if he has a reasonable interest in such a declaration.
Such an interest exists, if the plaintiff credibly claims that
- a similar situation could arise in the future and that the
administrative body would repeat its decision (danger of repetition),
- he would use a respective declaration to institute proceedings to
claim damages or
- he needs a respective declaration for his/her rehabilitation, e.g=
. if
the challenged administrative act is based on criminal, misdemeanour or oth=
er
dishonourable charges.
An action for the declaration of the unlawfulness of a ceased
administrative act is admissible regardless of the moment when the respecti=
ve
act has lost its legal consequences. If this happens after an action u=
nder
No 1 or 2 has already been filed, the plaintiff may adjust his petition to =
the
new situation (sentence 2 of No 3).
No 4:
With
the action for performance the plaintiff may seek an order that the defenda=
nt
-
performs a measure (e.g. to render information, to pay money, to hand out a=
n object),
-
tolerates a measure (e.g. obligations resulting from an administrative
contract, Art. 130 LGAP),
- omits
a measure (e.g. to omit a warning concerning a defective product).
For the
issuance of an administrative act No 2 is lex specialis.
The
omission to issue an administrative act can not be sought with an action for
performance. The plaintiff has to wait until the act is issued and to
challenge this act with an action under No 1.
An
action for performance is also admissible if an administrative body refuses=
to
comply with a beneficial administrative act (e.g. for the payment of money)=
, which
the administrative body has issued itself. However, in the special situation
that the administrative act has been issued based on a respective court
decision the plaintiff does not have to lodge an additional action for
performance but is directly entitled to submit a motion for enforcement of =
the
court decision (cp. comments on Art. 108).
If the
negative decision of an administrative body regarding an administrative mea=
sure
has lost its legal consequences, No 3 applies mutatis mutandis.
No 5:
With an
action for the declaration of the existence or non-existence of a legal rel=
ationship
the plaintiff can request a declaration on the existence or nonexistence of=
a
right or an obligation which is based on administrative law, provided that =
the
defendant disputes the claimed right or obligation. Examples:
- the
plaintiff claims a certain status, e.g. to be a Croatian citizen by birth o=
r to
be a civil servant,
- the
plaintiff claims that his license to run a café includes the right to
use the pavement in front of the café without further permissio=
n.
The
declaratory action must relate to a concrete case which is disputed between=
the
parties. The plaintiff may not abuse this action to clarify “interest=
ing”
legal questions which in practice are not disputed.
A
declaratory action is only admissible if the plaintiff has a reasonable
interest in the requested declaration. In order to decide whether the plain=
tiff
has such an interest it has to be examined in which way the requested
declaration could help the plaintiff. For example, such an interest is give=
n if
the plaintiff is facing criminal or misdemeanour charges for a violati=
on
of an obligation which is based on administrative law. In such a case the
plaintiff has a reasonable interest to obtain a declaration by the adm=
inistrative
courts which he could use in penal or misdemeanour proceedings.
An
action for the declaration of the existence or non-existence of a legal
relationship is inadmissible, if the plaintiff could have filed another act=
ion
under No 1 to 4. If for example an administrative body issues an administra=
tive
act which states the obligation to pay a certain amount of money as in=
come
tax, the addressee of this act could not file a declaratory action with the=
aim
to declare that he does not have to pay income tax. Instead, he has to
challenge the respective act with an action for the repeal of an
administrative act.
Article =
13 Subject
of actions for the repeal of an administrative act and actions for the
issuance of an administrative act
Art.&nbs=
p;13
defines the subject of actions for the repeal of an administrative act and =
actions
for the issuance of an administrative act. This is necessary to clarify whi=
ch
administrative decision – the decision of the first instance
administrative body or the decision on the objection (cp. Art. 110 et seq.
LGAP) – is subject of the proceedings.
As a rul=
e,
both the decision of the first instance administrative body and the decisio=
n on
the objection are subject of the proceedings. In this respect it does not
matter, whether the decision on the objection amended the decision of the f=
irst
instance administrative body (para. 1) or not (para. 2).
The
constellation that only the decision on the objection affects rights or leg=
al
interests can be divided into two subgroups:
- The fi=
rst
instance administrative body grants the applicant the requested right (e.g.=
a
building license). Upon the objection of another person (e.g. a neighbour),=
the
second instance administrative body revokes the decision of the first
instance body. The applicant can only claim that the decision on the object=
ion
violated his rights or legal interests.
- The fi=
rst
instance administrative body denies to grant the applicant the requested ri=
ght
(e.g. a building license). Upon the applicant’s objection, the right
(e.g. a building license) is granted. This decision could violate the right=
s or
legal interests of a third person (e.g. a neighbour). However, this person =
can
only claim that the decision on the objection violated his rights or legal
interests.
Article 14 Standing to=
sue
The prov=
ision
aims at preventing the so called “actio popularis”.
An actio=
n is
only admissible if the plaintiff can claim to a violation of his own rights=
or
legal interests. The claimed violation has to be possible. If it is impossi=
ble
that an administrative measure could violate the plaintiff’s rights or
legal interests, the action is inadmissible.
On the o=
ther
hand, the action is already admissible if the claimed violation of own righ=
ts
or legal interests seems to be possible. The question, whether the right or
legal interest actually was violated belongs to the decision on the merits.=
The exte=
nsion
of the standing to sue to (possible) violations of legal interests follows =
the
current trend throughout
In many =
cases,
the material law does not state expressively that it aims at the protec=
;tion
of rights or legal interests of certain groups of persons. In this case, in
order to answer the question whether (and if yes: which) rights or legal
interests are at stake, the relevant material law has to be interpreted.
Decisive is the ratio legis of a provision; whether its sole purpose i=
s to
maintain public order or whether it is also intended to protect rights
or/and legal interests of certain groups of people.
Examples=
:
- A prov= ision of planning law according to which all interests affected by a building pro= ject have to be weighed against each other, could be interpreted to the effect t= hat it is intended to protect the rights and interests that have to be included in= the weighing (e.g. the health of persons who are affected by emissions). <= o:p>
- A prov=
ision
that regulates the closing time for pubs could be interpreted to the ex=
;tent
that its sole purpose is to maintain public order. But it could also be
interpreted to the extent that it is (also) intended to protect the rights =
and
legal interests of neighbours against disturbances (especially noise) during
the night.
Inter-se=
-proceedings
between administrative bodies that belong to the same legal entity in princ=
iple
are not admissible, unless the law provides for an explicit exception.
Deviant =
from
Art. 2 para. 4 LAD, para. 3 stipulates that the department of public
prosecution can file an action aiming at the examination of the observance =
of
the objective law only if this is specifically provided for by law. For the
ratio legis for this provision please refer to the comments on Art. 1.
Article 15 Completion =
of
administrative remedy procedure
According to Art. 110 LGAP a party may file an objection again=
st
the decision of a first instance administrative body unless otherwise provi=
ded
for by law. In addition to that, Art. 134 LGAP and Art. 136 LGAP
foresee that a party may file a complaint in order to ensure the fulfilment=
of
an administrative contract (Art. 134 para. 1), against a measure of a provi=
der
of public services (Art. 136 para. 1) or against any other administrat=
ive
measure (Art. 136 para. 2). Art. 15 stipulates that in these cases the re&s=
hy;spective
proceedings have to be completed before an action is filed. Otherwise the
action is inadmissible.
If respective proceedings are not foreseen by law, an action can be
filed directly against the decision of the first instance administrative bo=
dy
within the deadline under Art. 17.
Article 16 Administrat=
ive
inaction
Art 16 regulates the formal requirements for the admissibility of an
action in case an administrative body does not decide on an application, an=
objection
or a complaint (=3D administrative inaction).
If, on the other hand, the deadline is not kept but an administrati=
ve
objection procedure is foreseen by law, an objection may be lodged
(Art. 110 para. 2 and 119 LGAP).
If the administrative act applied for is issued or the objection
acceded to, the court has to conclude the proceedings by ruling and to deci=
de
on the costs (Art. 93 et seq.). However, if the plaintiff is of the opinion
that the administrative act or the decision on the objection do not
completely comply with his/her application or his/her objection, he/she
can file a motion to resume the proceedings. In this case the court has to
examine whether the administrative act or the decision on the objection ful=
ly
comply with the application/objection. If this is the case the court
dismisses the motion by judgment. Otherwise it annuls the ruling on the
conclusion of the proceedings, continues with the proceedings and deci=
des
on the merits of the case (Art. 66 and 67).
If after the filing of the ac=
tion
according to para. 1 the application to render an administrative act or
the objection is rejected, the court continues with the proceedings. The
plaintiff does not have to file a new action or another motion. Before deci=
ding
the case, the court has to examine whether all requirements for the
admissibility of the action are met (e.g. standing to sue, Art. 14).
Article 17 =
Deadlines for filing an action
The ratio legis this provision is legal certainty. All parties whose
rights or legal interests are affected by an administrative act have to
know within a reasonable period of
time whether this act has to be followed.
Actions under Art. 12 para 1 to 3 have to be filed within a deadlin=
e of
30 days from the day of service of the decision on the objection or –=
if
such a procedure is not foreseen by law – within 30 days from the day=
of
service from the day of service of the administrative act. If the deadline =
is
not kept, the action is inadmissible. However, if certain requirements are =
met,
the court may reinstate the expired deadline (Art. 26).
Actions under Art. 12 p=
ara 4
and 5 have to be filed within a deadline of 30 days from the day of service=
of
the decision on the complaint. However, there are two exceptions:
- An action for the dec=
laration
of the nullity of an administrative act (Art. 12 No 5) is exempt from the
deadline. Administrative acts that are null and void can not become final. =
This
follows from Art. 102 para. 3 LGAP. According to this provision, the nullit=
y of
an administrative act can be declared at any time.
- For the declaration o=
f the
nullity of an administrative contract (Art. 12 No 5) a deadline is not
foreseen either (cp. Art. 132 LGAP).
Art. 25 contains genera=
l rules
that apply not only to the deadline under para. 1 and 2 but to all deadlines
regulated by this law. For the computation of deadlines Art. 114 of th=
is
law in combination with Art. 112 et seq. CPA apply.
Article 18 Procedural =
orders
issued by administrative bodies
The
ratio legis of para. 1 is to prevent that administrative proceedings are un=
duly
prolonged by giving the parties the possibility to challenge any decision on
the procedure (e.g. an order to appear before the administrative body,=
an
order to submit a certain document or an order concerning the taking of
evidence).
Article 19 Action for =
the
control of the constitutionality and the legality of general acts
Croatian scholars are of the opinion that a gap
regarding the judicial review of general acts exists. According to them
Art. 128 indent 2 of the Croatian Constitution does not cover all general a=
cts
(e.g. Omejeć, Zbornik radova “Upravno pravo i upravni postupak u
praksi – aktualnog pitanja i problemi”, Inženjerski biro,
Zagreb 2006; Đerđa, Zbornik Pravnog Fakulteta Sveučiliš=
ta
Rijeci, Vol. 29, Br. 1 (2008). To close this potential gap, Art. 8 para. 2,=
19
and 74 foresee the legal review of general acts that do not fall under Art.=
128
indent 2 of the Croatian Constitution by the
The “direct” control of general act=
s,
i.e. proceedings in which the constitutionality and legality of a general a=
ct
is the main subject, is not the only method to establish the constitutional=
ity
and legality of such acts. It is an established legal principle that in
proceedings concerning an administrative measure (e.g. an administrative ac=
t)
which is based on a general act these issues may also be raised
(“indirect” control). Another question is whether the court
that decides on the administrative measure is also competent to decide on t=
he
constitutionality and legality of the general act.
The “direct” control of the
constitutionality and legality of general acts has one big advantage compar=
ed
to the “indirect” control. A decision issued in proceedings of =
“direct
control” that declares a general act null and void has erga omnes eff=
ect
(Art. 75 para. 2). That means that such a decision does not only bind the
parties of the respective proceedings but applies to everyone. Therefore, &=
#8220;direct
control” is more effective since the same legal decision has only to =
be
decided once
The draft for a new Law on Administrative Court
Proceedings does not exclude the “indirect” control of general =
acts.
Both forms of control of general acts are possible. However, if proceedings
under Art. 19 are pending at the Supreme Administrative Court, administra=
tive
courts of first instance as well as the Supreme Administrative Court may
suspend other pending proceedings for whose decision this general act is
relevant as well (Art. 56 para. 2 No 2).
Comparable to an action under Art. 12, an =
action
under Art. 19 is only admissible if the plaintiff can claim that the
general act violates his rights or legal interests (cp. Art 14); e.g. if the
general act regulates the exercise of a profession or the use of land. Howe=
ver,
under para. 2 it is sufficient that this violation takes place in the near
future. This could e.g. be the case if the general act has already been
published, but has not yet entered into force.
It is n=
ot
necessary that the claimed violation is directly caused by the general act.=
It
is sufficient that another measure, as for example an administrative act, w=
hich
is based on the general act causes the violation.
The deadline under para. 3 has been forese=
en for
the sake of legal certainty. If someone is affected by a general act for the
first time after the deadline has expired, he/she is bound by the general a=
ct.
However, in this case this person may claim the illegality of the contested
general act in proceedings before an administrative court according to
Art. 12 or in proceedings before another court. The administrative cou=
rt
or the other court then would have to examine the legality of the general a=
ct
in the course of the respective proceedings (cp. comments on para. 1).
Para.4:=
Art. 46 enables the court to decide cases that =
do not
display any particular complications of a factual or legal nature with=
out
public oral hearing without the consent of the parties. Since the legal rev=
iew
of a general act according to para. 1 does not meet these requirements,
the application of Art. 46 is generally excluded.
Part 5 &nb=
sp; Gene=
ral
provisions on procedure
Article 20 Capacity to=
be a
party and procedural capacity
Article
21 Par=
ties
Article
21 defines the legal term “party”.
According to Art. 15 LA=
D the
defendant in administrative court proceedings could only be an administrati=
ve
body. Because of the introduction of the administrative contract this will
change. Individuals, legal entities and other entities to sue may also be a
party to such a contract ( Art. 130 para. 1 LAGP). Therefore, it is possible
that in future an administrative body sues an individual for the performanc=
e of
the latter’s contractual obligations. Both Art. 20 and 21 are formula=
ted
in a way to include this case.
Contrary
to Art. 16 LAD, third persons whose rights or legal interests could be af&s=
hy;fected
by the court decision are not a party to the proceedings by law but only af=
ter
they are summoned to the proceedings by the court (cp. Art. 22).
Article 22 Summons to =
join
the proceedings
The
provision regulates the participation of third persons who are neither
plaintiff nor defendant in administrative court proceedings. The provision =
not
only applies to the main proceedings, but also to provisional proceedings (=
Art.
88 et seq.).
The
participation of third persons in proceedings serves three aims:
-
protection of rights and legal interests of third persons,
-
inclusion of third persons into the res judicata effect of a decision (cp. =
Art.
75 para. 1 and Art. 21),
- avoidance
of contradicting court decisions.
According
to Art. 16 LAD, a person who would suffer direct harm by the repeal of the
challenged administrative act has – by law – the position of a
party. If the court does not give such a person the opportunity to particip=
ate,
this person may file a motion for the reopening of proceedings (Art. 52 par=
a. 1
No 6 LAD).
This
legal solution suits a mere cassatory system, but not a system in which the
courts can also issue reformative decisions. This is shown by the following
case:
The
operator of an airport files an action with the petition to order the
administrative body to issue a building license for a new airstrip. The
approach path of the airplanes stretches over an area with 20.000 inhabitan=
ts.
Under Art. 16 LAD, the persons living in this area could not participate in=
the
proceedings in spite of the facts that their rights or legal interests woul=
d be
affected by the issuance of the building license because at stake is n=
ot
the repeal of an administrative act but the issuance of such an act. The
participation of affected persons is not only in the interest of these pers=
ons
but also in the interest of the operator of the airport because of the
inclusion of these persons into the res judicata effect of the court decisi=
on
(cp. Art. 75 para. 1, Art. 21 No 3)
Another
problem in the case above is the great number of persons affected by the
building project. If all these persons would be awarded the status of a par=
ty
by law, the court would have to establish the names and addresses of these
persons ex officio in order to give them the opportunity to participat=
e in
the proceedings. This is virtually impossible or would at least
substantially delay the proceedings.
The
summons of a third person under para. 1 to 4 to the proceedings has the fol=
lowing
consequences:
- The
third person becomes a party of the proceedings (Art. 21 No 3).
- The
third party may submit both petitions on the merit and procedural motions (=
Art. 22
para. 5).
- The
res judicata effect of a decision extends to the third party (Art. 75 para.=
1).
Concerning
the additional consequences of a summons under para. 4 please refer to the
comments on this provision.
In
principle, the decision whether to summon third persons under para. 1 is su=
bject
to the discretion of the court. Since the court under para. 1 is not oblige=
d to
summon third persons it is not obliged either to establish the names and
addresses of persons on whom para. 1 could apply. Therefore, it lies within=
the
responsibility of the parties or third persons to file a respective motion.=
If
such a motion is filed and if the rights or legal interests of the respecti=
ve
person could be affected, the court as a rule should accede to this motion.=
In
order to achieve legal certainty by including persons affected by the build=
ing
project (or at least a part of them) into the res judicata effect, the
operator of the airport in the above mentioned case could file a motion und=
er
para. 1 (cp. the categories presented below as part of the comments on para=
. 2).
If the
court rejects a motion to summon a third person to join the proceedings und=
er
para. 1, the third person can file a complaint (Art. 81) against the respec=
tive
ruling. The same applies to the parties, provided that they have a legal
interest in the participation of the third person especially that the =
res
judicata effect extends to him/her (Art. 75 para. 1).
The
failure to summon a third party to join the proceedings under para. 1 has no
further implications for the main proceedings. The rights and legal
interests of the third person are sufficiently protected since the third pe=
rson
did not become a party (Art. 21 No 3) to the proceedings so that the res
judicata effect (Art. 75 para. 2) does not extend to him/her, so that the t=
hird
person may challenge an administrative act issued based on the court
decision or – in the case of the repeal of an administrative act R=
11;
file a new application before the administrative body.
In
contrast to para. 1, third persons have to be summoned to join the proceedi=
ngs
if the court’s decision could not only indirectly but directly interf=
ere
with their rights or legal interests. This is the case if the decision of t=
he
court would at the same time necessarily infringe the rights or legal inter=
ests
of third persons.
The
wording of para 2 is very abstract. The decision whether rights or legal
interests are directly affected or not in many cases is difficult.
In
order to facilitate the differentiation between para. 1 and para 2 the
following categories can be distinguished:
1.
Action for the repeal of an administrative act (Art. 12 No 1) affecting thi=
rd
persons
This is
the standard case for a mandatory summons under para. 2. To this category
belong all cases in which a plaintiff files an action against an administra=
tive
act that grants the addressee of this act a license, a right or another
advantage.
Examples:
- Action
of a neighbour against a building license, the holder of the license has to=
be
summoned under para. 2.
- Action
of a competitor against the appointment of a civil servant/judge, the ap&sh=
y;pointed
civil servant/judge has to be summoned under para. 2.
- Action
with the aim to revoke a subsidy granted to a commercial competitor, the
commercial competitor has to be summoned under para. 2.
In
these cases, the court has to summon the addressee of the beneficial admini=
strative
act according to para. 2: If the court acceded to the action of the plainti=
ff,
the judgment would repeal the administrative act and thus directly interfere with the rights and legal interests of the
addressee, who also is identified by the petition of the plaintiff.
2.
Action for the issuance of a beneficial administrative act
a) This
category comprises cases in which a person pursues the issuance of an ad&sh=
y;ministrative
act that could infringe the rights and legal interests of other persons. In
these cases the persons that claim an infringement of their rights or legal
interests do not have to be summoned under para. 2, but may be summoned und=
er
para. 1.
Examples:
- Action
for the issuance of a building license
- Action
for the issuance of a license to run a business (e.g. a disco)
Unlike
a judgment deciding on an action for the repeal of an administrative act, a
judgment deciding on the issuance of an administrative act does not itself
amend the legal situation but only obliges the administrative body to do so=
by
ordering this body to issue a specified administrative act. And unlike the
petition to repeal an administrative act issued to a certain person, t=
he
petition to issue an administrative act to the applicant does not identify =
any
other person whose rights or legal interests could be infringed. In additio=
n to
that, the example above concerning the action for the issuance of a
license to build an airstrip shows that in many of these cases it would be
virtually impossible for the court to identify all persons whose rights or
legal interests could be affected. Therefore, in these cases the possible i=
nfringement
of the rights or legal interests of third persons is not sufficiently
concretized, so that the decision of the court would only indirectly interfere with the rights and legal interests of thi=
rd
persons.
b) This,
however, does not mean that a judgment deciding on an action for the issu&s=
hy;ance
of an administrative act could under no circumstances directly infringe the rights or legal interests of a third pers=
on.
If the petition to issue a certain administrative act identifies a thi=
rd
person to a comparable extent as the petition for an action falling under
category 1, the possible infringement of rights and legal interests of a th=
ird
person are sufficiently concretized so that the decision of the court would=
directly interfere with the =
rights
and legal interests of third persons.
Example:
- Action
aimed at the granting of an exemption in order to be allowed to build a hou=
se
nearer to the neighbouring premises than foreseen by law: Through the
indication of the neighbouring premises the third person(s) whose rights or
legal interests could be infringed are clearly identified.
3.
Action for the issuance of a disadvantageous administrative act against an =
individualized
third person
As this
category also concerns actions for the issuance of an administrative act, t=
he
same principles as for category 2 apply. If the petition to issue a certain
administrative act identifies a third person to a comparable extent as=
the
petition for an action falling under category 1, the possible infringement =
of
rights and legal interests of a third person are sufficiently concretized so
that the decision of the court would directly
interfere with the rights and legal interests of third persons.
Example:
- Action
for the issuance of a demolition order for the house on neighbouring prem&s=
hy;ises:
Through the indication of the neighbouring premises the third person(s) who=
se
rights or legal interests could be infringed are clearly identified.
For all
other cases that do not fall into one of the categories above, the decision=
has
to be based on the circumstances of the respective case.
For provisional
proceedings the categories above apply mutatis mutandis.
If the
court rejects a motion to summon a third person to join the proceedings und=
er
para. 2, the third person as well as the parties can file a complaint again=
st
the respective ruling.
The
failure of the court to summon a third person to join the proceedings under
para 2 is a grave procedural fault. If the court notices such a failur=
e,
it must ex officio catch up on this failure as soon as possible. This also
applies to the
The failure
of the court to summon a third person to join the proceedings under para.&n=
bsp;2
does not give this person the right to appeal the judgment issued in the ma=
in
proceedings, since he/she has not become a party to the proceedings (cp. Ar=
t.
21 No 3). The rights and legal interests of the third person are
sufficiently protected since the res judicata effect of the issued judgment=
(Art.
75 para. 2) does not extend to him/her.
The
provision has two aims:
- protection
of the plaintiff
-
avoidance of further court proceedings.
The
provisions on the jurisdiction of administrative bodies in social matters s=
ometimes
are so complex that even the involved administrative bodies are not sure in
whose jurisdiction a claim falls. This complexity should not be held against
the plaintiff. It happens from time to time that an administrative bod=
y mistakenly
declares itself competent and negates the material claim of the applicant,
while the court affirms the material claim but holds that the case falls in=
to
the jurisdiction of another administrative body. Without the regulation
contained in para. 4 the court would have to dismiss the action if it finds=
out
that the plaintiff sued the wrong defendant and the plaintiff would have to
initiate new administrative proceedings and – if the other administra=
tive
body would also reject the application – to file a new action. This is
not adequate because the plaintiff would lose a lot of time and ineffective
because the case often would come to the court again.
Article 23 &nb=
sp; Actions
against public authorities
Article 24 Service of
documents
The
provisions on the service of documents follow the respective provisions of =
the
Law on General Administrative Procedure as these provisions provide a more =
efficient
set of rules as the respective provisions of the Civil Procedure Act.
Article 25 Deadlines
Art. 25 not only applies to the deadline for the
filing for the action (Art. 17) but to all deadlines foreseen in this law (=
e.g.
Art. 77 para. 2 and 81 para. 3).
If an
administrative or court decision is not served, notified or pronounced to a
person at all or if the procedural requirements for the serving of document=
s,
the notification or the pronouncement are not met, the deadline for the fil=
ing
of an action or a legal remedy is extended to three months from the day on
which
- the p=
arty
actually had knowledge of the respective decision or
- the party should have had knowledge of it. Th=
is is
the case when he/she has no knowledge of the decision because of gross
negligence on his/her part. Gross
negligence is given, if the party has knowledge, that somebody exercis=
es
rights which have to be granted by an administrative act.
Example:
A neighbour is aware of construct= ion works on a nearby property but did not receive the respective building lice= nse. In such cases the neighbour is obliged to pursue his rights by asking the neighbour or the competent administrative body whether a building license h= as been issued. The failure to act accordingly constitutes gross negligence. <= /span>
If the service, notification or pronouncement is made up or if the fault concerning the service, notificati= on or pronouncement is healed, the general deadline (e.g. Art. 17, 77 para. 2 or 81 para. 3) is actuated.
If the information on the legal remedy against =
an
administrative or court decision is completely missing, incomplete or wrong,
the deadline for filing an action or a legal remedy is extended to three mo=
nths
upon service, notification or pronouncement of the decision (sentence 1). T=
he
information is incomplete if one of the requirements set out in Art. 98
para. 7 LGAP or Art. 63 para. 6 are not met; it is wrong if one of
the necessary elements of information is incorrect.
There are two exceptions to the aforementioned =
rule:
- If the information incorrectly states a longer
deadline than the one provided for by law, this longer deadline applies.
- If the information incorrectly states that a =
legal
remedy is not available, an action or a legal remedy has to be filed within
three months from the day on which the party had positive knowledge of the
possibility to file an action or a legal remedy. Deviant from para. 2 it is=
not
sufficient if the party only should have had knowledge about this possibili=
ty.
If later on the missing information on legal re=
medies
is provided for, an incomplete information is completed or a wrong informat=
ion
corrected, the general deadline (e.g. Art. 17, 77 para. 2 or 81
para. 3) is actuated. However, if the new information contains
another fault, para. 3 applies again.
Article 26 Reinstateme=
nt
=
The possibilities and requirements for the
reinstatement are the same as in the Civil Procedure Act with one exception:
The absolute deadline of three months for the lodging of the motion in
Art. 118 para. 3 CPA is insufficient with respect to ensuring an
effective legal protection. Therefore, this deadline was prolonged to one y=
ear
(para. 2).
Article 27 &nb=
sp; Electronic
communication
Article 28 &nb=
sp; Service
of electronic documents
Article 29 &nb=
sp; Electronic
files
Article 30 &nb=
sp;
Access to electronic files
Art. 27 to 30 offer all
possibilities of modern communication from the electronic submission of
documents, over electronic file-keeping to the access of electronic files v=
ia
the internet. Electronic communication will facilitate the communication
between parties and the court, especially over great distances.
However, before electro=
nic
communication can start, the necessary infrastructure and the necessary har=
d-
and software have to be provided for. This not only applies to the courts, =
but
also to administrative bodies and lawyers since electronic communicati=
on
necessitates the respective equipment on both sides. Therefore, electronic
communication and electronic file-keeping will not start before the Ministr=
y of
Justice has ordered so by decree. The respective decrees also have to regul=
ate
the necessary technical specifications.
Art. 27 to 30 provide a=
very
flexible solution for the introduction of these new means of communication:=
the
different components (electronic submission of documents, electronic keepin=
g of
files etc.) may be introduced one after another. It is also possible to
start respective projects in pilot courts or only for certain types of
proceedings.
It has to be stressed t=
hat even
after electronic communication and electronic file-keeping will have starte=
d no
individual, legal entity or other entity entitled to sue is obliged to make=
use
of these possibilities. The traditional ways of communication per letter or=
fax
will still be admissible.
Part 6 &=
nbsp; First
instance proceedings
Article 31 Filing of an
action
The pendency of an action depends on the filing of the action with =
the
court (and not e.g. on the delivery of the action to the defendant). If in
other provisions legal consequences are tied to the pendency of a case
(e.g. Art. 72 para. 2), para. 4 applies.
This provision protects plaintiffs who are often inexperienced in l=
egal
affairs from not keeping the deadline for the filing of an action (Art. 17)
because they sent the action to the wrong administrative court or the
administrative body that decided on the challenged administrative measure. =
If
this happens, the deadline to file an action is presumed to be kept, as lon=
g as
it reached the wrong administrative court or the administrative body
within the deadline.
The addressees listed in para. 5 have to forward the action to the
competent administrative court without delay. This case has to be
distinguished from a referral as foreseen in Art. 8 or 9.
Article 32 Actions from
abroad
According
to the current case law of the Administrative Court of the
Because
of the deadlines for =
filing
an action (Art. 17), this solution is inadequate for administrative court
proceedings. These de=
adlines
prevent, that unlike in civil proceedings, an action dismissed for for=
mal
reasons can successfully be repeated. It is hardly possible that the repeat=
ed
action is filed within the deadline of 30 days foreseen in Art. 17.
Therefore, para. 2 stipulates that if the plaintiff does not fulfil his/her
obligation under para. 1, the court has to instruct the plaintiff about this
insufficiency and has to set him/her a deadline to name a person authorized=
to
receive mail. If the plaintiff does not follow this order within the set
deadline, the court can choose whether it dismisses the action as inadmissi=
ble
or whether it proceeds according to Art. 51 para. 2.
The
deadline set by the court has to be reasonable. The fact that the plaintiff
lives abroad and that he might not know anybody in
Article
33 Con=
tent
of the statement of claim
The deadline set by the court has to be reasonable. The fact that m=
any
plaintiffs are inexperienced in legal affairs and have to ask other persons=
for
help has to be considered.
If the action is filed by a representative of the plaintiff, the ac=
tion
has to be signed by the representative. In these cases the provisions of the
Civil Procedure Act regarding representatives and the power of attorney app=
ly.
If the action is filed =
by fax,
it is sufficient that the document sent by fax contains a signature.
Article 34 &nb=
sp; Service
of the statement of claim
Para.1:
The
exception in para. 1 only applies if the action is “evidently
inadmissible”. This requirement is not met, if there is only a reason=
able
doubt as to the admissibility of the action or if further inquiries are
necessary to decide on the admissibility of the action. In these cases, the=
action
has to be served upon all other parties.
An
action is inadmissible if the formal requirements for filing an action are =
not
met.
Examples:
- the plaintiff has no standing to sue (Art. 14),
-
the necessary objection or complaint proceedings have not been completed (A=
rt.
15),
-
the deadline for filing an action (Art. 17) has not been kept,
- the plaintiff does no=
t have a
reasonable interest in the requested declaration (Art. 12 No 5),
-
the plaintiff does not (anymore) have a legal interest to pursue his/her ac=
tion
because the challenged administrative act has lost its legal consequen=
ces,
-
the plaintiff has lost his/her legal interest to pursue his/her action beca=
use
he/she has refused to accept an acknowledgement which in all aspects compli=
es
with his/her claim,
-
the plaintiff who files an action from abroad has not named a person to rec=
eive
mail (Art.32)
- the statement of claim does not meet the requirements under Art. 33 para. 1= .
The case that an action=
is
filed with an incompetent court does not fall within this category, in this
case Art. 9 to 11 apply.
The aim of this regulation is to ensure the compliance with the principle of fair trial (Art. 3 para. 1). The right to = be heard requires that the party has to be given the op&sh= y;portunity to comment on all relevant facts and evidence = as well as on the relevant legal aspects of the case before the court takes a decision (judgment or ruling, Art. 58). If the party does not make use of t= his opportunity, the court may nevertheless decide (cp. also Art. 47 para. 2).<= o:p>
Concerning questions of material law or the tak=
ing
of evidence the parties are usually heard during an oral (Art. 45 para. 1) =
or
preliminary (Art. 39 para. 1 sentence 2 No 1) hearing. However, the hearing=
of
the parties does not in each case have to take place in a hearing before the
court. This would not be effective. Therefore, in many cases, especially if=
the
admissibility of an action or procedural measures (e.g. the assignment of a
case to a single judge, Art. 5 para. 2, or the suspension of proceedin=
gs,
Art. 56) are concerned, the hearing of the parties takes place in written f=
orm:
The court in a letter to the parties informs them about its opinion/intenti=
on
and sets them a deadline for their comments.
At any rate, decisions by which the proceedings=
are
concluded fall into the scope of this article. The same applies to rulings
which do not conclude the proceedings but refer to procedural issues which
concern the party’s rights or legal interests like e.g. rulings on the
referral of cases to another court (Art. 9 and 10), the forwarding of a cas=
e to
the Constitutional Court (Art. 11), rulings on the imposition of fines (Art=
. 48
para. 1) or rulings on the access to files (Art. 42). Only decisions that
solely concern the course of proceedings and that with absolute certainty
cannot have any negative impact on the rights or legal interests of the
parties, are not comprised by this article.
The right to be heard also implies that<=
span
lang=3DEN-GB style=3D'font-family:Arial;mso-fareast-language:HR;font-style:=
normal;
mso-bidi-font-style:italic'> the content of any communication between the c=
ourt
and one of the parties (e.g. instructions according to Art. 33 para. 3 or
advice according to Art. 38) is made known to all other parties (cp. commen=
ts
to Art. 3 para. 1).
In addition to the general regulation on the ri=
ght
to be heard in this article particular respective provisions are to be foun=
d in
several other articles of this law (e.g. Art. 46 para. 1 sentence 2; Art. 50
para. 2, Art. 51 para. 2 sentence 3; Art. 64 para. 1 sentence 2).
In principle, it is the court’s duty to
investigate all facts and circumstances relevant for the proceedings. Howev=
er,
the parties are obliged to assist the court with this task, since in most c=
ases
the parties know all relevant facts and means of evidence themselves. =
If a
party does not submit facts and circumstances which belong to its pers=
onal
sphere or knowledge, the court has no obligation to conduct respective inve=
stigations
on its own, unless it is evident to the court that such facts and circumsta=
nces
which are relevant for the decision exist.
The
court has to conduct the necessary investigations ex officio. The same appl=
ies
to the question whether evidence – and if yes with which means –
has to be taken. Regarding the means of evidence and the further
regulations on evidence proceedings, Art. 219 to 276 CPA apply (Art. 50 par=
a.
4).
Art. 36
constitutes one of the main difference between administrative court proceed=
ings
and civil court proceedings. In civil court proceedings the parties are obl=
iged
to submit the relevant facts and means of evidence.
Article 37 Binding eff=
ect of
the plaintiff’s claim
On the
one hand, this article contains the principle of “ne ultra petitaR=
21;
according to which the court may not grant the plaintiff more than what he =
asks
for.
On the
other hand, the article also stipulates the duty of the court not to stick =
to
the letter of the plaintiff’s petition but to establish the
“real” meaning of his/her petition and to interpret it accordin=
gly.
This process is closely connected to Art: 38: If there are any doubts wheth=
er
the plaintiff’s petition covers his “real” aim, the court=
has
to discuss this issue with the plaintiff and – if necessary – to
help him to reformulate his petition.
The
provision pursues several aims:
-
Protection of the parties: Lack of judicial knowledge should not be a decis=
ive
factor in the outcome of judicial proceedings.
- Equality of arms: Unlike administrative bodies most plaintiffs who file an action against administrative measures often are inexperienced in legal affairs. <= o:p>
-
Speeding up of proceedings: Judicial indications enable the parties to take=
all
missing steps that are necessary to enable the court to decide on the case.=
Art. 38
applies to all parties including administrative bodies. However, the provis=
ion
is of special importance for individuals that are not represented by a lawy=
er.
In
spite of its duty to advise the parties, the court has to stay impartial and
may not favour one of them. To prevent any doubts as to the impartiality of=
the
court, all other parties have to be informed about any judicial indication =
the
court gives to a party.
To
conduct proceedings as efficiently and quickly as possible, the court has to
try to decide the case based on only one oral hearing. In order to reach th=
is
aim, the oral hearing has to be properly prepared. To this end article 39
offers several “tools” which the court can apply according to t=
he
specific circumstances of the case.
Especially
preliminary hearings (Para. 1 No 1) appear to be highly effective to obtain=
the
necessary information and declarations before the final oral hearing. Moreo=
ver,
such a hearing usually presents a good opportunity to reach an amicable
settlement.
In
order to prepare the oral hearing properly it is mandatory that judges work=
on
the case files from the moment an action is filed so that necessary indicat=
ions
to the parties (Art. 38) can be given in an early stage of the
proceedings.
Article&nb=
sp;41 Obligation =
to
forward documents and files and to provide information
As the administrative c=
ourt has
to establish all the relevant facts ex officio, it is important that <=
b>all
public authorities and not only the administrative body/bodies that are a p=
arty
to the proceedings are obliged to submit all files, all documents and all i=
nformation
the court deems necessary to decide on the action.
The
duty of public authorities to name all parts of a document or file and all
information that in their opinion has to be kept secret is intended to
help the court to decide which parts of a file are exempt from access to co=
urt
files (Art. 42 para. 3).
The rulings on the summ=
oning
(No 1) and on the imposition of a fine (No 2) may be challenged by complaint
(Art. 81). The complaint against the imposition of a fine has suspending ef=
fect
(Art. 82 para. 2). After the ruling has become final the fine can be enforc=
ed
according to Art 107 et seq.
Access
to files in court proceedings is guaranteed by Art. 6 ECHR.
To keep
draft versions of court decisions and similar texts separate from the offic=
ial
court files and to exempt them from access by the parties is necessary to
safeguard a feasible and adequate preparation of the decision. Otherwise the
court is not able to prepare the decision in an unbiased manner.
In
order to protect the confidentiality of deliberations the minutes on
deliberations and voting (Art. 61 para.2) are exempt from access to files.<=
span
style=3D'mso-spacerun:yes'>
All
public authorities have to forward all their files concerning a specific ca=
se
(Art. 41 para. 1 sentence 1), but can identify those parts of the files, th=
at
according to overriding public
interest, overriding interests of third persons or of the plaintiff should =
be
exempted from access to files or that according to other regulations (e.g.
Art. 20 para. 2 of the Law on Secret Data or the Law on Protectio=
n of
Personal Data) have to be kept secret (Art. 41 para. 1 sentence 2). However=
, the
decision whether files are exempt from access to court files is not taken by
public authorities but by the court.
The access to court files is closely connected =
to
the right to be heard (Art. 35). Files that were excluded from access =
must
not be used for the court’s decision to the disadvantage of any
party.
The
provision enables the administrative court to speed up the proceedings by s=
etting
the parties a deadline for their statements or submissions. If the deadline=
is
not kept, the court may (para. 3) reject the respective statement or submis=
sion.
The deadline has to be in an adequate relation to the activity requested fr=
om the
party.
A
rejection according to para. 3 is only permitted if all three requirements
(delay, no reasonable excuse, instruction) are met. If this is the case,
however, the court does not have to reject late pleadings; the decision is =
left
to the court’s discretion.
“Decision
of the court” (para. 3 No 1) means the decision on the action, i.e. t=
he
decision that concludes the court instance. This decision would be del=
ayed
in the sense of para. 3 No 1, if the admission of late pleadings resul=
ted
in a prolongation of the proceedings that would not have occurred in the ca=
se
of its rejection (e.g. if an additional oral hearing was necessary), as
long as the prolongation is not irrelevant. An example for an irrelevant pr=
olongation
is the prolongation of the oral hearing itself (e.g. because of the hearing=
of
a witness who is present at the court). If the court terminates several
hearings on the same day, it is obliged to plan enough time for unforeseen
events like the hearing of a witness present at the court.
Article 44 Amendment o=
f the
action
Art.
190 para. 2 CPA allows the amendment of an action if the defendant agrees w=
ith
it or if the court holds that such an amendment would be suitable.
The
agreement does not have to be stated explicitly, it can also be implied, e.=
g. if
the defendant – either orally or in written form – argues on the
matter of the amended action without objecting the amendment.
In
principle, the court of first instance has to decide based on an oral heari=
ng
(principle of mandatory oral hearing, cp. Art. 3 para. 2). This is
necessary because of Art. 6 ECHR. The reservation of the
Exceptions
from this rule are only admissible if expressively stated by the Law on
Administrative Court Procedure:
-
if both parties in advance agree with a decision without oral hearing (para.
2),
-
if the court decides by ruling (para. 3),
-
if the requirement under Art. 46 are met (cp. comments to Art. 46)
These exceptions are in=
line
with Art. 6 ECHR.
For the
exclusion of the public, Art. 307 to 309 CPA apply mutatis mutandis (sen&sh=
y;tence
2).
The consent with a deci=
sion
without oral hearing has to be stated expressively. If a party does not ans=
wer
a respective request of the court, it has not consented in the sense of par=
a.
2.
Article 46=
Judgment wi=
thout
public oral hearing without consent of the parties
The provision aims at t=
he
simplification and acceleration of proceedings in cases which in the opinio=
n of
the court are without factual and legal difficulties, especially routine ca=
ses
in which the legal questions are already solved by previous decisions or ma=
y be
solved easily on the basis of the law text, e.g. if the deadline to file an=
action
(Art. 17) has obviously not been kept.
In those cases the cour=
t may issue
a judgment without a public oral hearing even without the consent of the
parties. However, the parties have to be heard in advance in written form (=
cp.
comments on Art. 35) that the court intends to proceed in this way. If a pa=
rty
raises objections against the court’s intention, the court has the ch=
oice
whether to follow these objections and proceed according to Art. 45 para. 1=
or
whether to proceed as announced.
Art. 46 applies to first
instance proceedings, no matter whether these proceedings are decided by a
court of first instance or by the
If a judgment based on =
Art. 46 has
been issued, the parties has the choice whether to lodge an admissible legal
remedy or to demand a public oral hearing before the court which has issued=
the
challenged judgment. Of course, this only applies to a party to whose (part=
ial)
detriment a case was decided.
Because of the aforemen=
tioned
choice of the parties, Art. 46 does not violate Art. 6 ECHR: If a party cho=
oses
to lodge an admissible legal remedy, it waives its right to an oral hearing=
.
If a hearing is request=
ed on
time (para. 2), the judgment issued according to para. 1 is presumed to not
have been issued. Therefore, the court has to issue a new judgment bas=
ed
on the hearing. However, para. 4 enables the court to refer to its judg=
;ment
under para. 1 to the extent that it follows its reasoning in this judgement=
.
Sentence 1 only applies=
if a
case has not been assigned to a single judge (Art. 5 para. 2). If the case =
has
been assigned to a single judge, the single judge acts instead of the
presiding judge (cp. comment to Art. 5 para. 2).
The deadline in sentenc=
e 2 is
intended to give the parties enough time to prepare for the oral hearing.
Because of this legis ratio, the deadline may be shortened with the consent=
of
all parties.
Sentence 3 allows the s=
hortening
of the deadline in urgent cases. However, in this case, it still has to be
assured that the parties have enough time to prepare for the hearing.
On a respective motion =
of a
party or ex officio the court has to postpone a hearing, if a legitimate re=
ason
exists (Art. 114 LACP, 116 CPA). Such a legitimate reason has especially to=
be
acknowledged if a party is prevented from attending the hearing without his=
/her
fault, e.g. in the case of illness or if the party booked a trip before the
summons. The same applies, if the lawyer or another representative of the p=
arty
cannot attend the hearing without his/her fault, e.g. if a lawyer has to
represent another client in court at the same time and the summons for=
the
other proceedings was issued earlier. The guideline for the decision on a p=
ostponement
has to be the protection of the parties’ right to be heard in an
oral hearing.
The provision (indirectly) stipulates that the =
court
may decide a case, even if one or all parties do not appear to an oral hear=
ing.
However, this is only possible if the parties were informed respective=
ly.
If the party has a legitimate reason for its fa=
ilure
to appear to a hearing, it can file a motion for reinstatement (Art 26 para=
. 1
LACP, Art. 117 et seq. CPA).
The provision has two aims: To enable the court=
to settle
the case based on only one oral hearing and to facilitate the settling of c=
ases
without judgment (Art. 51, 52 and 54). For both purposes it often is advant=
ageous
that the administrative body is represented by a person with special
knowledge, e.g. a technical expert in planning cases or a doctor in health
insurance cases.
The court’s request is not enforceable. A=
rt. 48
which allows the imposition of a fine does not apply. If however the failur=
e to
follow the court’s request causes additional costs, e.g. because of t=
he
postponement of an oral hearing or because of the necessity to hear an=
external
expert, these costs may be imposed on the administrative body (Art. 101 LAC=
P,
Art. 156 para. 1 and 2 CPA).
The provision refers to cases in which the court
considers the personal appearance of parties as necessary to establish the
facts of the case, especially to get an impression of personal
circumstances relevant for the decision. The personal appearance of the par=
ty
in many cases also is essential to settle the case without a judgment (Art.=
51,
52 and 54).
The ruling on the imposition of the fine may be
challenged by complaint (Art. 81). The complaint has suspending effect (82
para. 2). After the ruling has become final, the fine can be enforced accor=
ding
to Art 107 et seq.
Art.
49 provides the basic framework for the course of an oral hearing.
Sentence
1 only applies if a case has not been assigned to a single judge (Art. 5 pa=
ra.
2). If the case has been assigned to a single judge, the single judge acts =
instead
of the presiding judge (cp. comment to Art. 5 para. 2).
The
summarization of the content of the file is intended to give the parties the
possibility to control whether the court overlooked facts or arguments=
or
misunderstood something. With the consent of the parties this procedural st=
ep
may be skipped.
The
discussion of the factual and legal aspects of the case (sentence 1) has to=
be adjusted
to the specific circumstances of the case and has to be focussed on the main
legal issues. It is the task of the presiding judge to find an adequate bal=
ance
between the opportunity for the parties to submit their personal view and t=
he
requirements of focussed and efficient proceedings. This does not mean
that a party can extend his/her pleadings without limits. The presiding jud=
ge
may execute his/her power to maintain order in order to limit a party’=
;s
pleadings, in extreme (rare) cases even through the imposition of fines (Ar=
t.114
LACP, Art 318 CPA).
The
presiding judge should always keep in mind that the oral hearing is not onl=
y of
utmost importance in order to instil public trust in the implementation of =
the
rule of law by the administrative courts but also for providing an atmosphe=
re
during the hearing which enhances the chance for an amicable settlement (Ar=
t.
54). Therefore, the presiding judge as a rule should give the parties =
the
opportunity to speak for themselves even if they are represented by a lawye=
r.
Moreover, the court should try to find out the interest behind the formal
subject of the proceedings in order to reach a settlement which even m=
ay
avoid further legal disputes in the future.
The
main issue concerning the admissibility of a question (sentence 3) is the r=
elevance
of a question for the case to be decided. The court also has to prevent tha=
t a
question or the prospective answer could violate a person’s rights.
As
a rule, the court should decide a case based on only one oral hearing (Art.=
39
para. 1). However, there may arise new circumstances or aspects during the
hearing which with respect to the obligation of the court to establish the
facts ex officio and to the right of the parties to be heard necessitate an
additional oral hearing. In these cases the court has to adjourn the hearing
or, if this question has to be discussed first as part of the deliberations
(Art. 61), to reopen the hearing.
If
a party submits additional written pleadings after the closing of the heari=
ng and
before the issuing of the decision (Art. 62 para. 2 and 3), the court’=
;s
decision on a reopening depends on whether these pleadings contain new fact=
ual
or legal aspects which are relevant for the decision of the case and whether
these pleadings are excluded under Art. 43.
Art. 50 does not stipulate that the court has to begin with the
establishment of the facts from the beginning. On the contrary, Art. 50 allows the court to make =
use of
those facts that have already been established by the administrative body as
far as the court adopts them as its own, e.g. – but not restricted to
– in cases, when certain facts are not disputed by the parties and are
not contrary to the content of the files, or when the evidence collected by=
the
administrative authority is a sufficient basis for the decision of the cour=
t.
To the extent that the relevant facts are not
sufficiently clear on the basis of the files the court has to establish the=
se
facts itself and – if necessary – take the respective evidence.=
As a principle, evidence has to be taken by all
judges who decide on the case together in order to ensure that all of =
them
gain a direct impression of the means of evidence. However, this does not
exclude that in preparation for an oral hearing (Art 39) evidence is taken =
by
one of the members of the chamber or a judge from another court (para. 1
sentence 2).
Although it is suitable to summon witnesses and
experts well in advance to an oral hearing, the deadline under Art. 47 para=
. 1
sentence 2 does not apply to the summons of witnesses and experts. The
summoning of witnesses or experts on short notice in some cases is necessar=
y to
avoid delays in the proceedings and does neither affect the rights of =
the
parties nor the rights of witnesses or experts.
Art 50 only contains basic rules for the taking=
of
evidence. For the details, para. 4 refers to Art. 219 to 276 CPA
Art. 28 LAD states that=
the
action can be withdrawn until the moment the decision is sent out. This rule
does not fit in a two instance system. Therefore, para. 1 stipulates that t=
he
action may be withdrawn up to the moment the decision becomes final. This m=
eans
that the withdrawal may even be declared during the second instance pro=
;ceedings.
In case an appeal against the first instance judgment has not been lodged, =
the
action may be withdrawn until the expiration of the deadline under Art. 77
para. 2 sentence 1. If the action is withdrawn after a judgment has been is=
sued,
this judgment becomes invalid. For reasons of clarification the court
should include a respective declaration in its ruling according to par=
a.
3.
The basic idea of the
regulation is that the plaintiff has to demonstrate his/her interest to pur=
sue
the action by fulfilling his/her obligation to cooperate in the proceedings.
The court may in a first step informally remind the plaintiff to comply with
this obligation, even several times. Beyond this informal step the
regulation in para. 2 enables the court to call upon the plaintiff to
contribute to the proceedings properly by requesting a certain activity
from the plaintiff. Subject of such a request may only be activities that f=
all
into the “cooperation-sphere” of the plaintiff. The request has=
to
be sufficiently precise, so that the plaintiff is able to understand what e=
xactly
is demanded from him. The court may only request an activity from the
plaintiff which is necessary to complete the proceedings.
If
the plaintiff does not comply with the request, but demonstrates his intere=
st
to pursue the action otherwise the presumption of withdrawal is not
justified either. Insofar it is sufficient that the plaintiff reacts on the
demand in a manner which makes clear that he/she wants to maintain the acti=
on.
The
legal consequences of sentence 2 only apply if the court has submitted the =
same
order at least twice and each time combined with the setting of a deadline.=
In
order to ensure that the plaintiff has received them, the orders have to be
served. The last order has to contain the information according to sentence=
3.
If this information is missing, the legal consequences of sentence 2 do not
apply.
The provision refers to=
para. 1
as well as para. 2. If an action is withdrawn or presumed to be withdr=
awn,
the court by ruling has to conclude the proceedings and to decide on the co=
sts
(sentence 1). This ruling is not appealable by complaint (Art. 81 para. 1) =
but
only by a motion according to sentence 2. The ratio legis of this provision=
is
that the proceedings shall be continued before the court that issued the ru=
ling
to conclude the proceedings. Thus, a motion under sentence 2 is also admiss=
ible
if the
The provision regulates=
the
possible decisions on a motion under para. 3 sentence 2 and their consequen=
ces.
If the court holds that an action has been withdrawn or that it is presumed=
to
be withdrawn, it dismisses the motion by judgment (sentence 1). The term
“judgment” implies that the court has to decide based on an oral
hearing (cp. Art. 45 para. 1 and 3). However, Art. 45 para. 2 and Art. 46 a=
pply.
A respective judgment of a court of first instance can be appealed accordin=
g to
Art. 77.
If the court holds that=
the
action has not been withdrawn or is not presumed to be withdrawn, the court
annuls the ruling to conclude the proceedings and continues with the
proceedings (para. 4 sentence 2) as if the annulled ruling had never been
issued.
If in the course of cou=
rt
proceedings the administrative body comes to the opinion that the
plaintiff’s claim is founded, it may acknowledge the plaintiff’s
claim. In some cases this is a suitable way to avoid that the administrative
body has to bear costs (cp. comments on Art. 97 para. 2). However, an
acknowledgement only concludes the proceedings to the extent that the plain=
tiff
accepts it. If the plaintiff does not accept the acknowledgement, the
court has to decide the case. However, to the extent that the acknowledgeme=
nt covers
the plaintiff’s claim, the action has become inadmissible: The
plaintiff has no reasonable legal interest anymore in a court decision beca=
use
there is an easier way (acceptance of the acknowledgement) to get what he/s=
he
requests from the court.
An acknowledgement has =
to be
sufficiently precise as it is an enforceable title (Art. 108 No 3). In
principle, an acknowledgement should be formulated like the operative part =
of a
judgment. However, an acknowledgement has not always to be declared expressively. If the
administrative body fulfils the plaintiff’s claim (e.g. if it issues =
the
requested administrative act), this can be interpreted as a factual
acknowledgement.
If the
acknowledgement refers to the claim as a whole, the court by ruling has to =
conclude
the proceedings and decide on the costs (sentence 2 and Art. 51 para. 3).If=
the
acknowledgement is confined to only a part of the claim, the court concludes
the proceedings by ruling as to this part and continues the proceeding=
s as
to the part not comprised by the acknowledgement. Should the plaintiff reac=
t on
a partial acknowledgement by withdrawing the action as to the remaining
part of the claim, the court has to conclude the proceedings insofar as wel=
l (Art.
51 para. 3).
The consent of t=
hird
parties (cp. Art. 22) is not necessary in order to conclude the proceedings
upon an acknowledgement, because only the plaintiff and the defendant are
entitled to dispose of the proceedings. On the other hand, the acknowledgem=
ent
has no binding effect for those third parties, so that these parties may fi=
le
an action against the implementation of the acknowledgement, if the respect=
ive
measures affect their rights or legal interests. Therefore, Art. 52 ca=
uses
no gap in the legal protection of third parties.
The filing of an action again=
st
an administrative act does not prevent the administrative body from am=
ending
or substituting the challenged administrative act in favour of the plaintif=
f as
well as to his/her detriment.
In
case an amendment or substitution is in favour of the plaintiff, the court
shall ask the plaintiff (para. 1) to declare whether he/she accepts the new=
act
or whether and with which aim he/she wants to continue the proceedings. This
request has to be served to the plaintiff, since it actuates a deadline (Ar=
t.
24 para. 1). The further course of the proceedings depends on the plaintiff=
:
-
If he/she does not answer the court’s request, Art. 51 para 2 to 4 ap=
ply
mutatis mutandis (para. 2 sentence 1).
-
If he/she states that he/she does not want to continue the proceedings the
court by ruling has to conclude the proceedings and to decide on the costs
(para 2 sentence 2).
- If he/she states that he/she does not accept the new act, the proceedings a= re continued (para. 2 sentence 3). However, for reasons of procedural economy, the new act replaces the old act (para 2 sentence 4). <= o:p>
-
If he/she states that he/she accepts the new act but wants to continue the =
proceedings
according to Art. 12 No 3 the proceedings are continued respectively (para.=
2
sentence 3).
In
case an amendment or substitution is to the detriment of the plaintiff, the=
new
act is automatically included in the proceedings.
The law suit may be set=
tled not
only by a court decision, by withdrawal or by acknowledgement, but als=
o by
an agreement of the parties before the court. Such an agreement can be
concluded in an oral hearing, in a preparatory hearing (Art. 39 para. 1
sentence 2 No 1), or by written acceptance of a written proposal of the cou=
rt.
The ratio legis of Art. 54 is to provide the possibility for an amicable
solution for the pending law suit and possibly also for the conflict of
interests behind this law suit in order to not only settle the actual dispu=
te
but also to avoid future disputes between the parties.
Under procedural aspect=
s, only
plaintiff and defendant would have to agree on a settlement, but not t=
hird
parties, because – as laid out before (cp. comments on Art. 52) ̵=
1; only the plaintiff and the defendant are
entitled to dispose of the proceedings. However, a court settlement is not =
only
a procedural measure but also an administrative contract (double natur=
e of
court settlements). Therefore, Art. 130 LGAP et seq. apply to court settlem=
ents
as well. According to Art. 131 para. 1 LGAP, administrative contracts which=
affect
the rights of third persons necessitate the consent of these persons. If su=
ch a
contract is concluded without the consent of these persons, it is null and =
void
(Art. 132 para. 1 LGAP). Therefore, third parties have to agree to a court
settlement, if this settlement affects their rights.
The court is obliged to=
examine
whether an agreement is suitable and if so may submit respective proposals =
to
the parties (para. 1). Of course, these proposals have to respect the legal
order, because otherwise a respective settlement would be null and void (Ar=
t.
132 para. 1 LGAP). However factual and/or legal uncertainties are an indica=
tion
to take an amicable settlement into consideration. Moreover, rights and leg=
al
interests that go beyond the pending law suit may be included into a
settlement.
A court settlement has =
to be
sufficiently precise as it is an enforceable title (Art. 108 No 4). Like an
acknowledgement, a settlement should be formulated like the operative =
part
of a judgment.
Mediation as a special
technique for resolving disputes outside or within court proceedings h=
as
been spreading worldwide in recent years. EC Law also deals with media=
tion,
although with regard to the limited legislative competence of the EC in this
field only referring to cross-border disputes in civil and commercial matte=
rs.
According to the Directive 2008/52/EC of the European Parliament and of
the Council of 21 May 2008 on certain aspects of mediation in civil and
commercial matters member states are obliged to transform the provisions of=
this
directive into national law until 21 May 2011. Art. 3 of this directive con=
tains
the following definitions:
“For=
the
purposes of this Directive the following definitions shall apply:
(a)
"Mediation" means a structured process, however named or ref=
erred
to, whereby two or more parties to a dispute attempt by themselves, on=
a
voluntary basis, to reach an agreement on the settlement of their disp=
ute
with the assistance of a mediator. This process may be initiated by the par=
ties
or suggested or ordered by a court or prescribed by the law of a
It includes
mediation conducted by a judge who is not responsible for any judicial
proceedings concerning the dispute in question. It excludes attempts m=
ade
by the court or the judge to settle a dispute in the course of judicial
proceedings concerning the dispute in question.
(b)
"Mediator" means any third person who is asked to conduct a media=
tion
in an effective, impartial and competent way, regardless of the denominatio=
n or
profession of that third person in the
Even if the scope of the
directive may not extend to administrative court proceedings, the Law on
Administrative Court Proceedings should offer this possibility of alterna&s=
hy;tive
dispute resolution as well. Of course mediation shall and cannot replace th=
e normal
court procedure or the conclusion of court proceedings by a court decision.=
But
in certain cases (especially with more than two parties) which may amount t=
o 10
- 20 percent of the pending cases, mediation should be taken into considera=
tion
as a possibly more effective means of sustainable dispute resolution.
According to the above
mentioned definitions mediation can be understood as a con&sh=
y;fidential
procedure for settling conflicts between parties by consensual solutions wh=
ich
are sought for voluntarily and on the parties’ own responsibility, but
with the help of a qualified mediator who has passed a respective training.=
It
is a basic principle of mediation that the mediator must not have the
authority to decide the dispute unilaterally. This requirement at a first
glance seems to complicate if not hinder the use of judges as mediators.
However, this requirement can be met by internal court provisions which
stipulate that the mediator judge is excluded from deciding the case if the
mediation is not concluded by an amicable settlement.
Mediation
in pending cases may be superior to the traditional approach because it is =
focussed
on the interests of the parties behind the dispute instead on formal claims=
as
such. This implies basic differences between the traditional way of prepari=
ng a
solution of the dispute and the mediative way. The main structural differen=
ces
are the following:
|
Proced=
ural aspect |
Court
procedure &n=
bsp; |
Mediat=
ion |
|
Focus / Object |
Formal claim |
Interests in conflict |
|
Personal participation |
Only parties of the court proceedings |
All persons affected by the conflict |
|
Perception |
Law |
Interest |
|
Facts to be considered |
Relevant as to applicable law |
Relevant as to the whole conflict of interests |
|
View |
Directed to the past |
Directed to the future |
|
Method |
Public oral hearing |
Confidential talks |
|
Aim |
Legal certainty |
Sustainable pacification |
|
Solutions |
- Court decision or - law orientated settlement with mutual concessions |
Autonomously developed consensual agreement |
|
Consequences |
Winner / Loser |
Win – Win |
Reasons to choose media=
tion instead
of the normal court procedure may be:
- The parties want to p=
reserve
a good personal or business relationship despite the concrete dispute;
- A complex conflict be=
hind the
concrete dispute could not be resolved by a single court decision on the
concrete claim but only by an overall comprising agreement;
- The parties want to e=
mphasize
and preserve their own responsibility for a solution;
- The parties are inter=
ested in
a common effort to find a solution that satisfies all of them;
- The parties want their
private sphere or business secrets to be protected and not to be displayed =
in
public oral hearings;
- The parties are inter=
ested in
a fast resolution of the conflict. <=
/span>
Reasons to reject media=
tion may
be:
- One or all parties are
interested in a court decision on a legal question of general importance (c=
p.
Art. 77 para. 1 No 2);
- The parties failed to=
find a
solution in mediation before, also outside court proceedings;
- There is evidently no=
margin
for negotiable solutions because of strict legal provisions (which is
rarely the case, especially because of the possibility “to enlarge the
cake”, i.e. to broaden the points of interest to be considered in sea=
rch
of a satisfactory solution for all parties);
- The conflicting interests are not
complex but easily to be assessed so that there is no need for further
investigating and revealing of the interests. In such cases already the att=
empt
to reach an amicable settlement within the ordinary court procedure may be
promising.
Art. 55 =
refers
to cases already pending at an administrative court or the
The cour=
t may
propose and the parties may choose the referral of the case either to an
external or to a court mediator. The proposal for mediation should be made =
in
the early stage of the proceedings before the legal positions of the parties
have been established and the willingness to get involved in interest-orien=
tated
talks has declined. Besides, an early proposal can be motivating for
trying out mediation as the parties may rightly expect a faster solution of=
their
conflict than it could be achieved by proceedings through two court instanc=
es.
As media=
tion
proceedings – because of the structural differences mentioned above &=
#8211;
have to be separated from normal court proceedings, the court has to refer =
the
case to the mediator and suspend the proceedings before the chamber. In case
the mediation should fail or for any other reason, every party is enti=
tled
to demand the continuation of the normal court proceedings at any time.
Thus, the acceptance of mediation by a party does not hold a procedural
risk.
The stru=
ctural
characteristics of mediation proceedings and its necessary separation from =
the
ordinary court proceedings as a rule entail the necessity to keep this sepa=
ration
also after the court proceedings have been resumed on demand of one of the
parties. Therefore, mediation files and regular court files have to be kept
separate as well – unless all mediation parties renounce the separati=
on.
In princ=
iple,
the mediation parties are free to agree on procedural rules for the media&s=
hy;tion
proceedings. This may for good reasons also imply the agreement that no par=
ticipant
of the mediation proceedings including the mediator may be named as wit=
;ness
should the court proceedings have to be continued.
A judge =
performing
working as mediator still acts as part of the judiciary as that he/she is e=
ntitled
to record a settlement according to Art. 54 para. 3.
Mediatio=
n can
only be offered by a person who is trained to conduct mediation in a
professional manner as may legitimately be expected by the parties. Therefo=
re,
at each administrative court at least one judge should receive respective
training. It is assumed that until now no legally binding training curricul=
a have
been developed in the
The ratio legis of this provision is to give the
parties time for negotiations for a settlement (para. 1) or to prevent
that several courts or administrative bodies decide on the same issue (para.
2).
On respective motions by the plaintiff, the
defendant or third parties summoned under Art. 22 para. 2 to 4 (but not par=
ties
summoned under Art. 22 para. 1), the court has to suspend the proceedings u=
ntil
one of these parties demands to continue with the proceedings. The provision
also applies if the court proposes to suspend the proceedings and all
aforementioned parties agree.
A preliminary issue is an issue that is of legal
relevance for the decision of the case (e.g. the question of Croatian
citizenship if a person claims a right which only is granted to Croatian
citizens). The court has the choice (“may”) whether to decide t=
his
question on its own or to suspend the proceedings, if this question is subj=
ect
to other already pending proceedings before another court or an administrat=
ive body.
Insofar considerations of expedience may be considered. If the issue has
already been decided by another court or administrative body as an
operative part of the decision the administrative court is bound (prejudici=
al
res iudicata effect), provided that this decision is final. This may be
the case for instance in decisions concerning the status of persons (e.g.
Croatian citizenship, validity of a marriage).
It is not required, that the parties of the pro=
ceedings
pending at the administrative court and the parties of the proceedings pend=
ing
at another court or administrative body are identical.
If an
action according to Art. 19 is pending before the
If
– on the contrary – the
The aim of this provision is the simplification=
of
the proceedings in so called “mass-proceedings”.
The simplified procedural provisions provided f=
or
mass proceedings (para. 2 and 3) apply, if more than twenty first instance =
proceedings
are directed against the same administrative act or if the same legal quest=
ion
arises in more than twenty first instance proceedings.
It is at the discretion of the court whether it applies Art. 57 at all. The same applies to the decision how many and which= of the cases it chooses as pilot proceedings. Both the choice of the pilot cas= es as well as the suspension of the other proceedings has to be decided in one (non-appealable) ruling. The ruling has to enumerate all respective pr= oceedin