A draft law for amendment and supplementation (the “Draft”) of the Administrative Procedure Code (“APC”) has been submitted to the National Assembly, the purpose of which is to refine the regulation of administrative proceedings and bring them into line with the case law of the Court of Justice of the European Union (“CJEU”).
Among the most significant innovations is the possibility for the court to rule on the lawfulness of administrative acts even when they have been repealed ex officio by the very administrative authority which has issued the act.
This is the case where a general administrative act (“GAA”) or a subordinate regulatory act (“SRA”) is contested in court by an affected person with a proven legal interest, but before the completion of the judicial proceedings, the administrative body that issued the act itself repeals the relevant GAA or SRA. Until now, in such a scenario, court proceedings were usually terminated on the ground that the applicant no longer had a legal interest.
Now the draft provides that even in such a situation, the proceedings may continue if the application of the act until its repeal has affected the rights, freedoms or interests of the appealing individual/entity. The court would be obliged to bring the proceedings to a conclusion and to rule on the lawfulness of the act with a judgment.
This change is important because only a court judgement declaring the act null and void or unlawful opens the possibility of seeking compensation under the Liability of the State and Municipalities for Damages Act for damage caused by the administrative act in the period before its ex officio repeal.
The regulation will apply to both first instance proceedings and in proceedings before the Supreme Administrative Court (“SAC”). If the repeal of the act by the issuing administrative authority is done during the cassation proceedings, SAC will annul the decision of the first instance court and will then have two alternative options - 1) terminate the case (the current practice) or 2) still rule on the lawfulness of the contested act (if we fall into the above-mentioned hypothesis and the act has affected the rights and interests of the parties before its revocation).
The court would be entitled to:
• declare the contested act null and void;
• declare the act unlawful entirely or partly, or;
• dismiss the appeal and uphold the legality of the act.
Even if the administrative authority has repealed the act, the parties retain the right to be reimbursed for their court costs if the act is found to be unlawful.
The judgement of the court will have effect against all persons, unless the appeal is dismissed. This means that other legal entities affected by the material defects of the administrative act, even if they did not participate in the very judicial proceedings, will be entitled to refer to the judgment when bringing a claim for damages. Thus, the court before which the claim for damages is brought will not have to re-examine the question of the lawfulness of the administrative act, but will accept this fact as already established.
Such an approach would undoubtedly be to the benefit of any person who has suffered damage as a result of defective acts of the administration, since, in potential legal proceedings, they would not bear the burden of proving the unlawfulness of the act, but would have to prove only the amount of the damage suffered.
Explicit provision is also introduced for the suspension of court proceedings for appeal of administrative acts. The Draft “borrows” a large part of the grounds for suspension from the Civil Procedure Code (“CPC”), which were previously applicable subsidiarily by analogy in proceedings before the administrative courts – the proceedings are stopped in event consent of the parties, death of a party, discovery of criminal circumstances, etc.
Further ground for suspension will be the existence of other administrative or judicial proceedings that are relevant to the proper resolution of the dispute. Proceedings will also be suspended in the event of an interpretative case before the Supreme Court of Cassation or the SAC, as well as in the case of a reference for a preliminary ruling to the CJEU by any other court on an issue which is decisive for the outcome of the dispute. These amendments are undoubtedly in favour of the correct ruling of the administrative courts.
In the interests of more predictable development of the proceedings, it is also proposed to clarify the time limits for challenging orders for provisional execution of administrative acts, as well as the procedure for appealing the court's orders granting or challenging provisional execution.
For the first time, APC also explicitly introduces a regulation on challenging the decision regarding the legal costs. Until now, as in the case of suspension, the rules of the CPC were applicable by analogy. By virtue of the Draft, such regulation is envisaged directly in the APC. In particular, the court will rule with a separate act on the request to supplement or amend the judgment concerning the legal costs awarded, and the cassation instance - in its decision on the merits of the dispute.
The proposed amendments are aimed at improving the administrative process, overcoming accumulated contradictions in the case law and facilitating the legal protection of affected individuals and businesses from unlawful administrative acts, which is important for achieving security and transparency in the commercial life.
