The future of administrative justice : judicial review of administrative action in comparative perspective

Although judicial protection against administrative action has become increasingly important, the current organization of judicial review of administrative acts in Belgium may lead to conflicts of jurisdiction, forum shopping, contradictory judgments and legal uncertainty. Therefore, the dissertation analyzes the following findings. Firstly, the demarcation criterion between administrative courts and ordinary courts in Belgium is mainly based on the casuistically developed distinction between objective appeals focused on an abstract legality review and appeals adjudicating subjective rights disputes. Some legal scholars argue that this distinction would be artificial. Secondly, both ordinary and administrative judges seem to offer parallel and overlapping protection against administrative action, which may lead to forum shopping. Thirdly, objective annulment appeals have already regularly been criticized not to offer sufficiently adequate, final adjudication. Therefore, the Council of State Reform Act of 2014 has substantially expanded the instruments of the Belgian Council of State in order make an evolution possible towards a more active and pragmatic adjudicator. Fourthly, the Court of Cassation adjudicates conflicts of jurisdiction between both jurisdictional orders, but is at the same time an involved party being the supreme ordinary court. Belgium also lacks a mechanism which guarantees uniformity of case law between its distinct highest courts. Fifthly, the establishment of administrative courts is principally an exclusive federal legislative power in Belgium. Nonetheless, the Regions and Communities have increasingly relied on the implied powers to establish their own administrative courts, which has added complexity to the judicial system. The main aim of this Ph.D. thesis is to examine the future direction in which judicial review of administrative action should evolve within the Belgian federal state. It is not the objective to reopen the traditional debate about the choice between a one peak model (jurisdictional monism) and a twin peak model (jurisdictional dualism). Instead, guided by a functional comparative legal analysis of France, the Netherlands and Belgium, the dissertation focuses on the necessary conditions to optimize the functioning of the current Belgian twin peak model. The division of jurisdiction between administrative courts and ordinary courts should be transparent and forum shopping should be avoided. In this regard, one cannot ignore that the rather strict division of jurisdiction between the ordinary and the administrative courts in France excludes forum shopping and is evidently more transparent. The French administrative judge principally has exclusive jurisdiction to adjudicate disputes in which an administrative authority is involved exercising the prerogatives of public authority. Moreover, effective mechanisms are essential to pursue uniformity of case law and resolve conflicts of jurisdiction. In France, jurisdictional conflicts are adjudicated by a well-functioning Tribunal of Conflicts, equally composed of members from the Council of State and the Court of Cassation. One might consider establishing a comparable Tribunal in Belgium, which would also be a suitable institution to resolve divergent interpretations in case law between the distinct jurisdictional orders. In addition, judges should pursue final adjudication in due time, whereby specialization is useful. Recently, there has already been a subjectivation trend of objective annulment appeals as well as an increased alignment of the available legal instruments between the administrative and the ordinary judges in France, Belgium and the Netherlands. This evolution can partly be attributed to the influence of EU Law and the ECHR. Especially in the Netherlands, a fierce debate has been held over the past twenty years about a more pragmatic, final adjudication of administrative legal disputes. As a result, based on a comparative legal analysis, recommendations are developed about the use of the recently expanded and diversified instruments for final adjudication. Finally, the dissertation examines which is the most appropriate legislative level to organize the administrative justice system within the judicial branch sensu lato in Belgium, given the recent establishment of several administrative courts by the Regions and Communities via their implied powers. In this regard, a comparative legal analysis of the federal countries Germany, the United States, Switzerland and Belgium, as well as a cost-benefit analysis of federalism provide the basis to develop a more coherent distribution of judicial powers in Belgium. Instead of taking the relation of disputes with the substantive powers of the competent legislator as the basis to establish courts via the technique of the implied powers, one could in the future also choose a different path. Based on the conducted analyzes, it seems reasonable to propose that the organization of the Belgian highest courts remains at the federal level, while the organization of all courts of first instance and appellate courts, including the administrative courts, could be transferred to the Regions