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COUNCIL
OF EUROPE
COMMITTEE OF MINISTERS
RECOMMENDATION No. R (89) 8
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON PROVISIONAL COURT PROTECTION IN ADMINISTRATIVE
MATTERS
(adopted by the Committee of Ministers on 13 September
1989
at the 428th meeting of the
Ministers' Deputies)
The Committee
of Ministers, under the terms of Article 15.b of the Statute of the Council of
Europe,
Considering
that the aim of the Council of Europe is to achieve a greater unity between its
members;
Considering
that administrative authorities are active in numerous fields and that their
activities are likely to affect individual rights, liberties and interests;
Considering
that the immediate execution in full of administrative acts which have been
challenged or are about to be challenged may, in certain circumstances,
prejudice the interests of persons irreparably in a way which, for the sake of
fairness, should be avoided as far as possible;
Considering
that it is desirable to guarantee individuals, where necessary, provisional
protection by the courts, without disregarding the need for effective
administrative action;
Recalling the
general principles on the protection of the individual in relation to acts of
administrative authorities set out in its Resolution (77) 31 and the principles
concerning the exercise of discretionary powers by administrative authorities
contained in its Recommendation No. R (80) 2,
Recommends the
Governments of member States to be guided in their law and practice by the
principles set out in this Recommendation.
INTRODUCTION
The following
principles apply to provisional court protection against administrative acts.
Without
prejudice to the next sub-paragraph, the term "administrative act"
means, in accordance with Resolution (77) 31 on the protection of the
individual in relation to the acts of administrative authorities, any
individual measure or decision which is taken in the exercise of public
authority and which is of such a nature as directly to affect the rights,
liberties or interests of persons.
In those legal
systems where administrative regulatory acts can be challenged before a court
the following principles also apply to provisional protection against
administrative regulatory acts.
Principles
I
When a court
is seized of a challenge to an administrative act, and the court has not yet
pronounced its decision, the applicant may request the same court or another
competent court to take measures of provisional protection against the
administrative act.
The person concerned shall have the same right to request a competent court to
take measures of provisional protection, prior to his challenging the act in
accordance with sub-para 1, in case of urgency or
when an administrative complaint, the making of which does not have in itself
any suspensive effect, has been lodged against the
administrative act and has not yet been decided.
II
In deciding
whether the applicant should be granted provisional protection, the court shall
take account of all relevant factors and interests. Measures of provisional
protection may in particular be granted if the execution of the administrative
act is liable to cause severe damage which could only be made good with
difficulty and if there is a prima facie case against the validity of the act.
III
Measures of provisional
protection ordered by the competent court may take the form of suspending the
execution of the administrative act, wholly or partially; ordering wholly or
partially the restoration of the situation which existed at the time when the
administrative act was taken or at any subsequent time; and imposing on the
administration any appropriate obligation in accordance with the powers of the
court.
Measures of provisional protection shall be granted for such period as the
court thinks fit. They may be subject to certain conditions. They may be
revised.
Measures of provisional protection in no way prejudge the decision to be taken
by the court seized of the challenge to the administrative act.
IV
Proceedings
before the court shall be speedy.
Save in cases of urgency, the procedure shall be adversarial and shall allow
access by interested third persons.
When, in cases of urgency, interested persons could not be heard before the
court granted provisional protection the matter shall be liable to a new examination
within a short time, under a procedure conforming to the preceding
sub-paragraph.
______
When this
Recommendation was adopted, the Representative of Denmark, in application of
Article 10.2.c of the Rules of Procedure for the meetings of the Ministers'
Deputies, reserved the right of her Government to comply with it or not.