1 An Empirical Analysis

There is, of course, more than one way to conduct a diachronic analysis. It is sufficient to glance through the pages of the most representative public lawyers at any given time to grasp the role of general principles. Alternatively, in the light of the existence of legislation introducing adjudicative mechanisms, a careful analysis may provide the basis for comparing their powers and styles of review in a way similar to that adopted by Laferrière in the same period. Lastly, an empirical analysis, based on an examination of judicial decisions, can also be made.

The first approach is especially appealing to those who emphasize the role of scholarship¹⁷⁵ and thus deem that administrative law did not exist before its conceptualization in academic literature.¹⁷⁶ Underlying this approach is an unspoken premise, namely that legal literature reflects the institutions that actually work in other systems. There are at least two difficulties with this assumption, however. The first is the risk of failing to admit that things – in our case legal realities – might exist before being conceptualized by scholars.¹⁷⁷ Secondly, their reliability is even more questionable given the difficulty in distinguishing between description and prescription, most notably in Dicey. While it is true that context matters, we must also accept that ideology matters too.

Laferrière’s approach sees the expansion of administrative justice in more functional and less ideological terms. And yet, the premise of legislation comparée has in itself been challenged by two distinct views, each of which ascribes less importance to legislation. Firstly, a scholar of comparative law has to examine not only legal rules but also the broader context in which they operate¹⁷⁸ as courts have to apply legislation, and the legislative measure ends up turning into something different from the political expectations underlying it. Secondly, until a few decades ago, the role of legislation in administrative law was far less incisive than in other fields, especially in countries with codes of law. Thus, for example, Jennings observed that Belgian jurisprudence had ‘by a series of important decisions of the courts since 1920 adopted the main body of French administrative courts relating to fautes de service’.¹⁷⁹

The reasons just mentioned support the third approach. It builds on the insights of leading fin-de-siècle authors such as Hauriou, who argued that administrative law was essentially judge-made.¹⁸⁰ However, it is not enough to gather facts: they must be assessed.¹⁸¹ The next section provides an analysis of judicial decisions, followed by some remarks concerning the interplay between commonality and diversity.

2 Administrative Litigation: Similar Problems

A few preliminary caveats may be appropriate at this point as the data available are both differentiated and fragmented. They are differentiated because, at the beginning of the timeframe of interest to us, just a few dozen disputes were adjudicated in the Habsburg Empire and Italy, in contrast with the hundreds of disputes that the French Conseil d’État decided each year. Moreover, generalizations are problematic because the data shows state-by-state and year-to-year variations. With these caveats, two tendencies emerge: firstly, there was a general increase in litigation concerning public authorities, and, secondly, the work of the courts defined and refined general principles. This phenomenon will be examined in the next section, while the question of litigation will be analyzed here in both quantitative and qualitative terms.¹⁸²

Quantitatively, the trend can be measured according to the increasing number of cases brought before the courts either seeking the annulment of an act or measure adversely affecting individual rights or to sue a government for damages. In the early years of the period examined here (1890), French administrative courts handled hundreds of cases a year,¹⁸³ while the other national courts held but a few dozen hearings. However, two decades later, the gap had become ever smaller. For example, of the 300-plus cases adjudicated by the Italian Council of State over these two decades, the majority were brought in the closing years.

In qualitative terms, a growing number of claims were brought against administrative measures limiting civil and economic rights. Everywhere, direct attacks on these restrictive measures came from those subject to police measures meted out on the grounds that they had acted against shared social values or threatened the political order, such as persons considered to be rioters or seditious elements. Likewise, many applicants challenged expropriations and other measures limiting the right to property, such as demolition orders, the imposition of duties on the owners of land bordering rivers, and the transformation of private roads into public ones.¹⁸⁴ Moreover, a new type of claim was brought against the use of government largesse. A leading example of this new trend is the ruling of the French Conseil d’État in Terrier.¹⁸⁵ After a municipal authority had promised a certain amount of money to cull vipers, the applicant brought evidence of his activity in this sense and sought to obtain the specified amount of money. The local authority refused to comply with its promise, and the lower court refused to let the applicant challenge its decision. But the Conseil recognized that the applicant had rendered a service to the local community, so this entitled him to receive money from the public purse. Lastly, the standards and practices concerning the recruitment of civil servants and their career ladder also changed over time. More and more lawsuits were being brought by persons contesting their exclusion from public employment selection procedures and by employees suing because they had not received a promotion or contesting disciplinary measures. In this regard, all national courts had to decide whether civil servants were entitled to certain rights to a hearing before being dismissed.

In summary, notwithstanding the diversity of the mechanisms available, judicial approaches reflected the emergence of similar problems related to the growth of government, as well as a notable similarity of opinion regarding the idea that provisions concerning access to legal remedies should never be narrowly construed. It remains to be seen whether this similarity also concerned standards of administrative conduct, a theme that will be considered in the next section.

3 Devising Solutions: Legality and Procedural Fairness

Although the courts showed an awareness that the execution of legislation increasingly required ministers and local authorities to be granted discretionary powers in the years of interest here, they also demonstrated a willingness to ensure that those powers were based on concrete foundations and were subject to conditions. The demarcation line between discretion and law was problematic because there were frequent divergences as to where the line should be drawn. It was, moreover, not uncommon for courts to make distinctions based either on facts or functional considerations. While acknowledging this reality, we may nonetheless observe that the demarcation line between discretion and law was facilitated by the idea of the way administrative powers were granted to public authorities.

The demolition of houses in the context of urban regulation is an example in point. A public authority could order the demolition of a house if it was unfit for human habitation or risked causing harm to others, or else if certain procedural requirements had to be met. Courts frequently verified compliance with both conditions. One kind of case was linked to the conceptual justification for judicial intervention, for which two grounds were provided: ensuring scrupulous conformity to the goals and boundaries set out in legislation, and the protection of citizens’ rights. The second kind stressed administrative procedure as a means of checking government power in a broader sense. Oversight in this context had traditionally been exercised through a variety of mechanisms ranging from ordinary courts to bodies that were formally part of the executive branch but enjoyed some degree of autonomy. It also started to be become part of administrative procedure itself.

This type of justice is important when addressing the theme of administrative procedure. One starting point is the legislation that created the Administrative Court of the Habsburg Empire. It rested on the then-novel premise that everyone was entitled to challenge a measure taken by government authorities. In the absence of specific procedural requirements laid down in legislation, it was the Court that clarified the meaning of the relatively brief text the provision that referred to the infringement of essential procedural requirements. In so doing, it referred to ideas and beliefs about public law that could be considered to be widely held, particularly with regard to public authorities deciding without hearing those who would be adversely affected by the effects of their decisions. A ruling of 1884 and another of 1894 provide good examples of what was required. In the first case, a road built and managed by private individuals was transformed into a public road. The question at issue was not so much the existence of the authority to transform a road, which was justified either by the power of eminent domain or was laid down in specific regulations. The problem was, rather, how this authority was exercised, because the public body in question had provided these individuals with no opportunity whatsoever to be heard. Interestingly, the Court endorsed their claim that they had a right to be heard on the grounds that this was in the ‘nature of things’ (‘Natur der Sache’) and annulled the challenged measure.¹⁸⁶ Similarly, the Court observed that public authorities were required to hear interested individuals. It added that this was necessary in order to gather and balance all the relevant facts.¹⁸⁷ On the facts of the case, it would appear that the rules that follow from the nature of the things were infringed because the public authority failed to carry out a thorough fact-finding procedure before reaching a final decision.¹⁸⁸ Alternatively, the Court’s policy may be seen to reflect the idea that individuals being heard was a natural consequence of their status within society.

In terms of this rationale of procedural safeguards, a similarity between the rulings of the German and Italian administrative courts emerges. A ruling issued by the Bavarian administrative court is particularly helpful in understanding the principles of procedural justice. Not only did the Court acknowledge that the applicant was entitled to receive judicial protection vis-à-vis a challenged measure on the grounds of procedural irregularity, but it held that the existence of a fundamental procedural flaw affected the legality of the measure even though the applicant had not referred to that specific infringement.¹⁸⁹ It thus appeared to no longer consider itself bound by the old maxim that a court may decide solely on the basis of the arguments (and evidence) presented by the parties and in accordance with the law.

A glance at the case law of the Italian Council of State confirms that administrative courts did not hesitate to be bold. In the early years of the last decade of the century, the application of the audi alteram partem principle in the field of public employment was at a low ebb in the case law of Italy’s highest civil court, the Corte di Cassazione. Either because of its positivist attitude or from a sense of deference towards the political authorities, the Court held that civil servants could be dismissed without notification of the charge against them or an opportunity to be heard unless this was explicitly provided for by sector-specific rules. Conversely, in Chiantera, when the former secretary general of a municipality challenged his dismissal on the grounds that he had not been heard, the Council of State provided a concise but illuminating discussion of the principle. It rejected the defendant’s positivist argument that administrative procedure was not subject to the more stringent requirements of criminal trials. It argued that hearing the accused person was a ‘principle of eternal justice, reflecting the sacred right of defence’.¹⁹⁰

In a country such as Belgium, where ordinary courts reviewed administrative action, the judge not only followed the same reasoning, but also used almost the same words. The case concerned the dismissal of a doctor who worked in a public institution. When the doctor challenged the dismissal on the ground that he had not had a real opportunity to be heard, the respondent argued that procedural rules had no place in that context. The court did not accept this argument, holding that the right to be heard derived from a ‘higher principle of justice’, though it rejected the application on the grounds that he had had more than one opportunity to make his case.¹⁹¹ This confirms that, in the foundational period of administrative law, conceptual doctrines that had characterized earlier eras in other fields of the law demonstrated surprising vitality¹⁹² and contributed to shaping the justification and content of process rights, in systems with different courts.

It may be interesting to compare these findings with those concerning the two legal systems that have traditionally been viewed as being not simply different but incompatible, namely those of France and England. The French Conseil d’État did not explicitly refer to general principles of law. However, it discretely applied them in more varied ways. One of these was to distinguish the détournement de pouvoir, ie, the misuse of powers, from the détournement de procédure, which occurred when the administration followed a procedure other than that envisaged by existing rules.¹⁹³ Another way was to give weight to the circumstance that a specific formality had been disregarded, or a specific process right had been infringed. This is confirmed, a contrario, by the Conseil’s decision in Winkell, where it affirmed that a particular civil servant was not entitled to be heard before dismissal¹⁹⁴ on the ground that he had taken part in a strike. Commissaire du government Tardieu argued that the legislation of 1905, whereby civil servants were entitled both to be notified and heard, was not applicable in this case. The Conseil endorsed this interpretation, and it is evident that it was strongly influenced by the fact that the needs of the State were involved. In his comment on the decision issued by the Conseil, Hauriou could not help noting that, if this was not juridically wrong, it was at least unsatisfactory, because it was not explained in terms of law. He went one step further – and it was a remarkable step – when he observed that the Conseil d’ État, the arbiter of the legality of administrative action, could have simply refrained from applying the 1905 legislation on the ground that it was unconstitutional.¹⁹⁵ This was only because, in its opinion, the higher public interest required that notification and comment requirements not be applied.

On the other side of the Channel, two approaches to cases appear particularly relevant. One line of authority concerns natural justice under the guise of audi alteram partem. For example, in Hopkins, the Court of Appeal ruled that, even though an individual had erected a building infringing the by-laws of the Board of Health, the latter could not exercise its authority to demolish it without providing the owner with an opportunity to be heard.¹⁹⁶ Another series of cases concerned the dismissal of civil servants. In this respect, English courts can rightly be regarded as forerunners with regard to sackings in the light of the Bagg’s case of 1615.¹⁹⁷ This case is particularly interesting, firstly, because it provides a justification for procedural limits to power, which goes beyond instrumental rationales such as control over compliance with legislative intent because it is based on a non-instrumental rationale; that is, the idea that removal without hearing is in itself a bad thing.¹⁹⁸ Secondly, this case may be distinguished, in some respects, from later ones in which natural justice was applied only to judicial or quasi-judicial decisions.¹⁹⁹ Within these limits, the Sharp decision of the same year may be viewed as indicative of the gradual evolution of natural justice. When the Court affirmed, per Lord Halsbury, that the discretion accorded to public authorities had to be exercised ‘according to rules of reason and justice, not according to private opinion, … according to law, and not humor’, adding that its exercise could not be ‘arbitrary, vague and fanciful, but legal and regular’, it applied standards that in modern terminology would be called legality, rationality, and procedural propriety and fairness.²⁰⁰

Of course, these findings concerning deprivation of office and administrative limitations on the right of property cannot be over-generalized. In other areas, the courts may have given a more limited application to court hearing rights on the grounds that an overriding public interest required it or, more generally, the administrative authority was granted wide discretion. Special considerations could be pertinent, moreover, to particular individuals (for example, police forces) or circumstances (wartime). However, two facts emerge quite clearly. Firstly, courts applied similar concepts and techniques in similar cases with a view to ensuring that procedural justice was done. Secondly, administrative courts gradually ensured adequate protection of the rights of the individual. This improvement regarded, in particular, the French Conseil d’État. According to an American observer, Garner, it was ‘probably safe to say that there is no other country where private rights are better protected against arbitrary and illegal acts of public officers’.²⁰¹

4 Devising Solutions: Government Liability

Government liability in tort is another key test for our hypothesis, being traditionally regarded as one of the causes of the divide between the European systems of public law. Some weaknesses arising from this divide have already been illustrated in the first chapter, but it is time now for a more structured analysis from the historical and comparative perspectives.

Historically, it is important to bear in mind that all mediaeval legal systems shared the idea that the State could not be held liable.²⁰² The result was immunity, justified on the ground that the State or the Crown was the holder of sovereignty.²⁰³ Thinkers such as Blackstone, who endorsed the maxim ‘the King can do no wrong’, deemed that this was in the nature of things.²⁰⁴ The famous ruling of the French Tribunal des Conflits in Blanco, that the State was not subject to the rules of the Civil Code governing non-contractual liability, could be – and was – viewed as a confirmation of the old doctrine.²⁰⁵ This view was not, however, immune from weaknesses, because, it did not (necessarily) follow from the inapplicability of the rules of the Code that government was immune, as Santi Romano observed in relation to Italy.²⁰⁶

In approximately the same period, both French and Italian courts finally acknowledged government liability in tort. In France, the revirement came from the Conseil d’État in Tommaso Greco and Auxerre in the context of actions brought against the exercise of police powers. The Conseil not only rejected the traditional view that immunity was incompatible with State sovereignty, but it also rejected the doctrine that police powers were subject to a particular regime, coming under the special rules for servants of the State.²⁰⁷ Once again, it was Hauriou who observed that the underlying reason was the need to avoid a denial of justice, while confirming the discretionary powers attributed to the public authorities in view of an increasing range of collective interests.²⁰⁸ In the years that followed, the Conseil d’État maintained the distinction of legal sources affirmed in Blanco, mitigating it by defining and refining government liability in tort in order to ensure that the action of the State was subject to the rules of law.

In contrast with the assertion that French administrative law was a constant source of inspiration for other Continental legal systems, these did not opt for a wholly separate body of law dealing with actions for damages against public authorities, nor did they leave it to the discretion of administrative courts. Neither Belgium nor the Habsburg and German empires took this path. The basic idea was that government liability was to be regulated by the ordinary rules and was thus subject to the provisions of civil codes. The Civil Code of 1900, which introduced the same system of substantive law throughout the whole of Germany, specified it unequivocally. There was, however, an area where French administrative law was particularly influential, ie, the fundamental distinction between two types of administrative acts or measures formulated by the commissaires du government. On the one hand were the measures used for administrative activities that differed little from those of private bodies (actes de gestion), while on the other, there were measures such as those of taken by the police in the exercise of their public powers (actes d’autorité), as in the Tomaso Greco case, or the decision to limit free economic initiative by creating a monopoly, as in the Blanco case.²⁰⁹ In France, this distinction served to delimit the boundaries of the jurisdiction of the ordinary and administrative courts, respectively. Elsewhere, it was used as the standard for setting the limits of government liability in tort. For example, Italian courts tended to exclude it when public authorities exercised discretionary powers. This confirms the circulation of legal doctrine, although it does not always assume the same form or effects that it possessed in other contexts.

In England we found no such distinction between the various types of administrative action. We found instead evidence of the persistence of a private law approach to liability, in the sense that there was no special legal regime for the servants of the State. At the end of the 19th century, the courts began to restrict the actions brought by individuals against the servants of the Crown. Thus, in Raleigh, Judge Romer radically excluded that, when they acted within their competence, they could be held liable for damage that occurred to others.²¹⁰ The underlying reason was that the wide application of discretion that exists in administrative law had to be taken into due account. The more restrictive policy seems to have prevailed at a later date.²¹¹ For this reason, some decades later, Davis echoed Dicey’s words, raising the issue of whether ‘English courts at any time would have held the Prime Minister liable personally on account of the exercise of discretionary power’.²¹²

5 The Role of Judge-Made Law and the Place of Legal Theory

Two final comments concerning the importance of judicial standards of administrative conduct and the interplay between common and distinctive traits may be appropriate at this juncture.

A quick comparison with private law is enlightening. Private law was codified in France at the turn of the nineteenth century (1804). This extended to the territories under direct French rule, such as Northern Italy, as well as other countries, eg, Belgium (1804). Other States followed, including Austria (1811), Italy (1865), Spain (1889), and Germany (1900).²¹³ Hence Roscoe Pound’s opinion that the era of codes ‘reinforced the idea of law as a body of rules in Europe’. Conversely, in the field of administrative law, there was no comprehensive and systematic body of rules. Accordingly, the ‘creative role of the judge’ was more important than it was in the field of private law. Not only the standards governing judicial trials but also those concerning administrative procedure were judicial constructs. In brief, administrative law emerged as judge-made law,²¹⁴ and general principles – rather than rules – were the building blocks of national legal systems.

Universally, these were evolutionary principles; they were not the product of rational design but of individual decisions. What stands out regarding this type of decision is that the general maxim applied by the court is to be regarded as a broad, and often variable standard, allowing more than one application, depending on the facts and interests of each case. Although respect for precedent was systematized only in the English system, in continental legal systems too, the process of developing these standards began with a first case, followed by later decisions, gradually assuming a definite shape before being applied to further cases, but not without nuances. Such development was unavoidably gradual. Moreover, it was supported by the work of learned lawyers who systematized the principles elaborated by the courts. Mention must be made at least of the works of Hauriou and Tezner in the French and Austrian legal systems, respectively, which were well known to scholars in other national contexts.²¹⁵

Aside from the empirical discovery of widespread judicial lawmaking, the question that arises is how the judicial construction of general principles was justified. Obviously, for the courts, the easiest thing was to say that their function was to discover – and not to make – the law, in order to avoid any accusation of arbitrariness and overreach. However, as noted earlier, they could seldom call upon principles already established by legislation. As a result, they had to choose between the following options. The first, used especially in the English courts, was to refer to the binding authority of longstanding principles, such as the two fundamental maxims of natural justice. Another option was interstitial lawmaking, namely filling the gaps left by statutory or customary law. In the French legal system, as observed by Letourner, this argument was reinforced by the prohibition of allowing denial of justice under the pretext that the law was obscure or that there was no law at all.²¹⁶ A third option was to make a reference to the core values of the legal order, such as justice and equity, not to be considered as a term of art in English law but, more broadly, as fairness and impartiality. Interestingly, the principles defined by the French Conseil d’État were said by Laferrière to be, in one way or another, ‘inherent in our public and administrative law’²¹⁷ The decisions taken by the Austrian and Italian administrative courts concerning the right to be heard provide an example of this last way to justify the judicial construction of general principles. There was also, however, a reminiscence of the doctrines of natural law. On the other hand, the Austrian Civil Code of 1811 expressly gave judges the power to refer, if necessary, to the principles of natural law. But, as observed earlier, far from being restricted to descriptive analysis of judicial performance, legal scholarship played an important role in defining the general framework within which the courts evaluated the activities of government and administration.

It was within these terms that it was correct to say that judges made law. While new legislation required new administration, it frequently did not provide public officers with adequate standards of conduct. There were, therefore, some areas inadequately regulated by law, if at all. Those gaps and loopholes were filled by a new law, shaped by judges and jurists: administrative law.²¹⁸

6 The Emergence of Common Principles

A further demonstration of the existence of common standards of administrative action would emerge four decades later in the case law of the ecj, as can briefly be demonstrated from an examination of the Algera case.²¹⁹

The dispute arose from an unlawful act issued by the General Secretariat of the Common Assembly of the ecsc. After issuing an act that granted some financial benefits to a group of employees, the administration became aware that the act was based on an erroneous analysis and consequently decided to withdraw it. The employees then challenged the administration’s new decision, alleging that it did not have the authority to withdraw the earlier one and that its decision was unreasonable. The first problem was deemed particularly sensitive by the Court, since neither the Treaty nor the regulation governing staff expressly provided for such authority. Faced with a lacuna in the legal system stemming from the Treaty, the Court resolved it in three steps. Firstly, it stated that it was axiomatic that, in order not to deny justice, it was obliged to resolve the problem. It thus acted as if in EEC law there was a norm similar to the prohibition of the denial of justice established by the French Civil Code .²²⁰ Secondly, it affirmed that, in so doing, it would look at ‘the rules acknowledged by legislation, learned writing and case law of the member countries’,²²¹ that is, from a comparative perspective.²²² Lastly, after examining national administrative laws, the Court observed that an unlawful measure conferring benefits on individuals could in principle be withdrawn or revoked everywhere, but there were significant differences related to the importance accorded to the passing of time. Therefore, it accepted ‘the principle of the revocability of illegal measures at least within a reasonable period of time’. Interestingly, the Court paired an argument based on coherence – namely that if a certain measure is contrary to law, the public authority that issued it has the power (if not the duty) to withdraw it – with a comparative argument. In this respect, it examined all the relevant domestic laws and used an approach that might be said to be based on a sort of minimum common denominator while, in more recent cases, it has been less inclined to do so. Several other examples might be added, including good faith,²²³ proportionality, and due process, but that would not add much to the general point that is being made here; that is, as Treaty of Paris laid down a thin legal framework, the Court was left to develop general principles of administrative law.

The Treaty of Rome brought a further impulse in this direction from the perspective of government liability. While the Treaty of Paris followed the French model of liability for faute de service, the Treaty of Rome took a different stance. According to Article 215, the non-contractual liability deriving from the damage caused by the institutions and servants of the ec in the performance of their duties would be regulated ‘in accordance with the general principles common to the laws of the member states’.²²⁴ Literally, the provision referred to the Community. However, it could be interpreted as implying that the six founding States shared a general principle of tort liability. The existence of such a principle was implicit in the substantive decision that not only ruled out immunity but also clarified that the Community, not the employee, should bear the burden for the normal consequences of administrative action. It was implicit, too, in the renvoi to the ‘general principles common to the laws of the member States’. The general point being made here is, therefore, that the creation of the new institutions rested on the understanding that there was not only diversity but also commonality between national administrative laws, at least at the level of general principles.