Issues raised by the case law on administrative suspension

Author:Marta-Claudia Cliza
Pages:213-222

Marta-Claudia Cliza. Lecturer Ph. D., Faculty of Law, “Nicolae Titulescu” University, Bucharest ( cliza_claudia@yahoo.com).

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Introduction

At present, one observes an increasing interest of European countries in consolidating and developing procedural warranties for protection against damages or hurting that might occur by the execution of the administrative act, even in the stages that are preliminary to the legal administrative procedure. Thus, legal regimes can have stricter or broader regulations pertaining to the reasons that entitle the judge to rule the measure of suspension.

This study is trying to present the institution of suspension by the law courts of the effects of administrative acts, as a measure that is meant to defend the interests of the people who had their rights harmed and who, at the same time, apply for the cancellation of the act that is considered to be legal.

This scientific endeavour reviews the European systems that give the judge the possibility to temporarily interrupt the effects of an administrative act. Also, the paper provides a thorough presentation of the texts excerpted from Law no. 554/2004, respectively articles 14 and 15, which entitle administrative court judges to suspend such an act, whenever they consider this measure necessary.

The paper also presents certain cases when legal courts have ruled the suspension of such documents, by making reference both to the legal provisions and to the actual case submitted to judgement.

We consider that this paper is useful both for theoreticians and practitioners in the field of law, and especially for those who work in the field of administrative courts, as the paper targets to clarify certain aspects pertaining to the suspension of administrative acts within administrative-related actions.

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The suspension of administrative acts in European legal systems

In the category of legal systems that make it possible to rule the measure of suspension under stricter conditions, we mention the system existing in France, where article L 521-1 of the Code on administrative justice1 stipulates that, when an administrative decision (even one ruling a rejection) makes the object of an application for annulment or for reformation, after having been informed by means of a notification in this respect, the judge of the “referés” (recourses, applications for annulment that are being judged by the administrative court) may rule the suspension of the execution of such decision or of some of its effects, provided that this be justified by emergency and there is a means that might generate, during the course of trial, “serious doubt” as far as the lawfulness of the decision is concerned. The above-mentioned law also stipulates that, when the suspension is ruled, the application for annulment or reformation of the decision is regulated as soon as possible, and the suspension ends at the latest when a decision is ruled pertaining to the application for annulment or reformation of the decision.

The French system is dominated by the non-suspensive effect of the recourse stipulated in the article L 4 of the Administrative Code for Justice, which affects not only administrative recourses, but also the recourse ways before administrative justice.

Recent administrative doctrines consider that both the derogations from the principle of the suspensive effect and the organisation of the judges' powers to rule upon the postponement or suspension of the execution fall under the incidence of the law.2

The Belgian legal system (the Law of October 17, 1991), the application for suspension has an accessory system, compared to the application for annulment, and the execution can only be suspended if serious reasons are invoked, reasons that might justify the cancellation of the act or regulation attacked, provided that the immediate execution of the act or regulation represents a risk for causing serious prejudice, which would be difficult to repair.

Amongst the systems that make it possible to rule the measure of suspension under less strict conditions, one can mention the German system which, by means of paragraph 80-11 of the law on administrative jurisdiction grants a suspensive effect to the preliminary administrative complaint and to the application for annulment, without the intervention of the judge, but the German legislation also regulates exceptions from the principle of the suspensive effect of the recourse, by means of paragraph 80-11 of the above-mentioned law. The consequence of the suspensive effect is the fact that the legal force of the administrative document is suspended, such act lacks such force in the first stage and, therefore, it cannot be executed, nor can it generate consequences of another type. In theory, the German administrative law considers that the constitutional requirement of an effective protection of the rights leads to the possibility to make interventions in early stages, before the occurrence of an irreversible situation or of a prejudice that cannot be repaired.

One of the most advanced systems for the protection of citizens before administrative authorities is enforced in Portugal, where the court has the power to take any temporary measures, to make any type of pressure that might be necessary for solving the case, without such ruling being conditioned by the parties' requests.

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We continue the discussion at European level and speak about the suspension of the execution of administrative acts. In this context, on September 13, 1989, the Ministers' Committee within the Council of Europe adopted the Recommendation R (89) 8, pertaining to the temporary jurisdictional protection in administrative matters, which recommends the governments of the member states of the Council of Europe to make use, both in theory and in practice, of the principles stipulated in this Recommendation. One can therefore draw the conclusion that, if an administrative act is challenged before a jurisdictional authority and this authority has not made a ruling pertaining to the lawfulness of such act, it is desirable that, as far as it is aked to rule on measures for temporary protection, in order to avoid any irreparable prejudice and by taking into account all circumstances and interests in question, the court be allowed to decide the full or partial suspension of the execution of the administrative act, by means of a quick procedure and for as long as it is considered to be necessary.

Also, another recommendation, respectively Rec (2003) 16 on the execution of administrative and jurisdictional decisions in the field of administrative law, a recommendation that was adopted by the Ministers' Committee within the Council of Europe, suggests states to include in the established legal framework the possibility of private individuals to request before an administrative or jurisdictional authority the suspension of the challenged decision, if the law does not stipulate that the rightful suspension of the execution of the decision occurs at the very moment when the complaint is formulated.

An interest of this type can also be found at Community level, such as it results from the case law of the Court of Justice of European Communities (CJEC), which decided that, if recourse is filed for the interpretation of a community rule, in order to appreciate the compatibility of the national norm with a community rule submitted to interpretation, while waiting for the interpretative decision and with the purpose of ensure full effectiveness of community law, the judge who is to settle...

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