Towards similar standards of judicial protection against administrative action in England and Germany? : a comparison of judicial review of administrative action and the liability of public authorities under the influence of European laws

This comparison has shown that the traditionally divergent positions, which are taken in the control of administrative action in England and Germany, display some common ground in very general terms on which decisions are being taken. The formulation of these general observations is valuable in the preparation of a transnational approximation of judicial review mechanism for the establishment of comparable levels of judicial protection in Europe. These results may be useful for future developments of a common system of judicial review across Europe, even though these results may only represent two pieces in the jigsaw. The comparison has also identified major differences and assessed the reasons for the diverging developments in a historical perspective. The identification of these differences is equally important because of the need to find compromises between divergent systems.Secondly, the thesis was concerned with an analysis of the degree of Europeanisation of the national judicial review systems and the concept of public liability as it is currently emerging. Here, some changes can be noted in both legal systems, which have led to a slow convergence of the systems. The changes in England are marked by an increasing openness for more transparency in the decision-making and the development of a more rights based culture. The substantive review of administrative decision through the application of sharper tools such as proportionality and substantive legitimate expectation mark a new era. Germany, on the other hand displays very high standards of review. The changes in Germany which were provoked mainly by case law of the European Court of Justice indicate the need to reduce the standard of review in some areas, such as the protection of substantive legitimate expectation in the context of the recovery of, state aid. The neglect of procedural protection which is illustrated by generous provisions which allow the in-trial curing of procedural effects displays an approach in Germany which is very focused on the substantive correctness of decisions. This attitude might, in the future lead to controversies in the context of European laws. Nevertheless, limitations to a convergence are inherently set by each national systems constitutional framework. The reasons for the different developments of both legal systems in the nineteenth and early twentieth century can not be ignored and will remain to an extent to preserve the national character of both systems.The variety of results, which have been identified in the four main chapters of this thesis were concerned with issues dealing with the institutional aspects as well as systematic aspects of judicial review and public liability in England and Germany. However, the nature of this comparison required the analysis of institutional contexts as well of the substantive and procedural judicial review mechanisms. The questions asked were concerned with identification of common principles and differences in a historical context, the degree of Europeanisation, which has led to an approximation of nationally divergent positions and the limitations, which are provided by each system's constitutional framework in which judicial review operates. The comparison focused on the development of a system of judicial review of administrative action in a historical perspective, the judicial control of the exercise of discretionary powers, fair procedures and their judicial review and the liability of public authorities in tort