Judicial review Flashcards Preview

Comparative Administrative Law > Judicial review > Flashcards

Flashcards in Judicial review Deck (10):
1

France - Judicial review

1. Contrôle minimum - Applied when statutory provision is imprecise (wide freedom of decision-making) - To check procedural and formal defects - Requires a 'manifest error'
2. Contrôle ordinaire - The court will do a separate fact-finding evaluation
3. Contrôle maximum - The court will use the principle of proportionality when FdRs are at stake

2

France - Proportionality

1. When contrôle maximum
2. Costs-benefit analysis - To balance the interests between the individual and the Community

3

The Netherlands - Judicial review

1. Wide discretion to choose between different actions - Not fully reviewable, only proportionality will be checked - Only when there is such an imbalance of the weighing of interests that the administrative authority could not have reasonably come to that decision
2. Wide margin of interpretation - Not fully reviewable, only proportionality will be checked - The court cannot substitute its own assessment, it will only check that the one of the authority was reasonable

4

The Netherlands - Proportionality

1. Weighing of interests - Is there a sound motivation? Are the adverse effects entirely disproportionate?
2. Subsidiarity

5

England & Wales - Judicial review

1. Review is allowed when the decision was so unreasonable that no reasonable authority could ever have come to that decision - Wednesbury case

6

England & Wales - Proportionality

Relation with judicial review is not really clear

Used when a Convention right or EU law is involved:
1. Is the aim of the measure sufficiently important to justify the limitation of a protected right?
2. Is the measure rationally connected to the aim?
3. Subsidiarity?
4. Balancing of interests

7

Germany - Judicial review

1. Margin of interpretation - Fully reviewable unless the authorities have explicitly a margin of interpretation
2. Discretion - Judicial review is limited to discretionary errors (failure to use discretion, excess of discretion) - Proportionality will be applied if a FdR is at stake

Proportionality:
1. The measure must be suitable to achieve a legitimate interest
2. The measure must be necessary (= subsidiarity)
3. The measure must not be excessive in relation to the effects on the citizen involved

8

France - Grounds for review

1. Incompetence
2. Procedural irregularity - Duty to listen, duty to give reasons, duty of explanation
3. Violation of the law:
- Contrôle minimum
- Contrôle ordinaire
- Contrôle maximum
4. Abus de pouvoir - The administration acted against the purpose for which the power was granted

9

England - Grounds for review

1. Illegality:
- Mistake of jurisdiction
- Abuse of discretion
- Failure to exercise discretion
2. Irrationality:
- Manifest unreasonableness
- Unproportionality
3. Procedural impropriety:
- Breach of express procedural requirement
- Breach of implied procedural requirement

10

Can the judge examine a violation of EU rights?

1. FR - NO
2. GR - YES
3. NL - YES
4. EN - YES