Administrative law

Administrative law

the branch of public law that governs the activities, powers, and procedures of government agencies and administrative bodies

The two functions of administrative law

Instrumental function: administrative powers & functions of public authorities
Safeguarding function: protection of citizens’ or companies’ rights & interest against abuse of power

Substantive principles of administrative law

legality (obeying the law), legal certainty, honouring legitimate expectations, proportionality, equality, impartiality

Procedural principles of administrative law

right to be heard, stating reasons

Legality principle

powers (competences) of authorities must be set out in the law (have a legal basis), and authorities cannot use their powers for unintended purposes (détournement de pouvoir)

Margin of discretion for public authorities

public authorities have discretion to choose from among several legally permissible decisions, finding the one they deem most appropriate, while being subject to judicial review.
this is limited when fundamental rights & other general principles are being considered

Function of judicial review in administrative disputes

to judge if the way the policy was executed was legal (procedural fairness, protecting individuals from arbitrary decisions, etc…), not if the policy choice was suitable

Organisation of judicial review in administrative disputes

preliminary objection or review before quasi-judicial / hybrid body → specialised administrative courts (social security, environment, migration) that often include lay judges

Lay judges

ordinary citizens without legal training, used to bring community perspectives, life experience into the justice system, have the same voting weight as professional judges

Standing

the ability of an individual to have a claim dealt with before a court - there needs to be a link between the applicant and the subject matter

Standing on claims about individual rights v. general claims

for claims about individual rights, standing is strict
for general claims (e.g. taxation issue, construction of a nuclear plant), anyone with a general interest may be an applicant

Remedies for individuals with standing against administrative activities

annulment
performance

Which remedy is more common - annulment or performance?

annulment is more common as ordering a specific measure could infringe on the separation of power

Annulment & performance remedy example

annulment example: grant / refusal of building permit
performance example: road maintenance, disbursement of subsidy