Italian Administrative Courts and Foreign Administrative Acts: An Unfinished ‘Soul Searching’ Exercise

The present work deals with administrative acts as studied in Brazil, with particular attention to foreign administrative acts, a subject still little known in Brazilian doctrine and practice. An administrative act in the Brazilian legal system arises when the public administrator expresses a Public Administration declaration of intent. It is always linked to a public purpose. The administrative act is foreign when it has the same elements of a national administrative act and also represents the manifestation of the will of the body or agent who is part of a foreign state. Brazil has no regulations about foreign administrative acts, which creates many problems related to recognition and enforcement of foreign administrative acts. The country has not ratified the Apostille Convention, as will be discussed in this work.

Most countries recognise the notion of “administrative act” as an individual decision taken by a public authority to rule a specific case, submitted to public law and immediately enforceable and, in general, they also identified a foreign administrative act as the one issued by a foreign or international authority and submitted to foreign or international law. However, the existence of a international legal framework does not prevent the existence of broad differences on service, recognition and execution of these foreign administrative acts. It is necessary, to deepen the study of the transnational administrative act, paying special attention to how it affects the conception of the administrative act in different legal cultures and its potential impact on procedural rights and judicial guarantees of the recipients of such acts.

The legal rules governing recognition in the United States of foreign administrative acts vary sharply depending on whether the foreign administrative act in question is covered by a mutual recognition agreement (MRA), which seeks to eliminate duplicative assessments in international trade of conformity of goods and services with applicable product and service standards, or similar treaties. Such agreements and their implementing legislation and regulation give a clear legal basis for recognition to the extent that they cover foreign administrative acts though in fact many do not. Otherwise, recognition is based on the common law, which provides for recognition--chiefly enforcement of money judgments or collateral estoppel on common issues, but excluding fines and penalties--in order to avoid duplicative litigation in situations in which there has already been a full and fair opportunity to litigate all relevant issues in connection with the issuance of the foreign administrative act. The common law is subject to exceptions to protect crucial U.S. public policies, but the act of state doctrine extends the scope of administrative acts that may be granted recognition in the United States by eliminating the defense of public policy in certain cases.

Although in Spain there is no explicit reference in the legislation of administrative procedure to the validity, efficacy and enforceability of foreign administrative acts, the international and european framework provides for instruments to fix most of the problems raised by foreign administrative acts, their service and their efficacy.

The chapter examines the legal basis for the recognition of foreign administrative acts in Germany. Starting with a description of the concept of administrative acts in Germany, it gives an insight into the term “Verwaltungsakt” (general German concept of administrative acts) and its different forms, the question of entry into force and binding effect of administrative acts in Germany, the notification and promulgation by service of administrative acts, the enforcement of administrative acts in Germany and the division between German and foreign administrative acts. In the second part, the chapter deals with question of “proof of authenticity”, “translation” and the “execution” of foreign administrative acts in Germany. Doing so, the author distinguish clearly between beneficial and onerous administrative acts. The third part is build up on the context of transborder activities of German administration. Finally, the conclusion sums up the quite complex system of administrative acts in Germany in a transborder context.

The issue of review by French administrative courts of acts of foreign administrative authorities is ancient, but has been revived in the context of the European Union. Secondary legislation adopted under various competences of the EU (internal market, Schengen area, environment…), use the technique of transnational administrative acts and thus calls into question the principle of material territoriality of administrative law. Nevertheless, the French administrative courts remain attached to the principle of formal territoriality and are very reluctant to ensure the indirect control of administrative acts of foreign authorities. However, this solution will have to change in order to guarantee the right to effective judicial protection.

This article examines the treatment of foreign administrative acts by Portuguese administrative courts, focusing on their judicial review in the context of EU law. Despite academic recognition of the increasing transnational nature of administrative law, Portuguese case law on this issue remains limited. The study explores the legal framework governing administrative acts in Portugal and analyzes relevant case law, particularly in tax enforcement. Findings reveal that Portuguese courts generally uphold the principle of territoriality, often refraining from reviewing foreign administrative decisions, even when EU law permits such scrutiny. The study highlights inconsistencies between national jurisprudence and recent Court of Justice of the European Union rulings, particularly regarding the right to judicial protection under Article 47 of the EU Charter. The article concludes that, despite theoretical advancements in Portuguese legal scholarship, judicial practice remains cautious, potentially leaving gaps in legal protection. Future research should explore whether Portuguese courts will align with evolving EU principles on transnational judicial review.

Problems concerning transnational administrative acts have not yet induced the rise of a subject-related legal-theoretical writings in Estonia. On the practical level, however, Estonia has taken several various steps regarding recognition of foreign administrative acts. This has been done both on the basis of international law as well as within the framework of the EU law. Mutual trust, the principle of reciprocity and respect for the rule-of-law make it possible to move forward towards further actions to be taken in order to develop closer cooperation in this important sphere.

The subject of enforcement of foreign administrative acts has not been undertaken in Poland. Only some elements have been identified when discussing the problems of global administrative law, international administrative acts or EU administrative law. As it has been repeatedly raised above Polish law has also many gaps in that materia. The increasing importance of application of the international and foreign administrative acts should lead to new solutions in public international law. The European Union has the greatest opportunities and resources for creation of that kind of provisions under condition of the respect of the different forms of administrative activities (e.g. regulatory acts, single-case decisions) and numerous branches of administrative law (e.g. environmental law, construction law or tax law).

The article focuses on the Recognition of Foreign Administrative Acts according to Swiss law. The Federal Act on Administrative Procedure delineates the concept of administrative act. It does not specifically mention foreign administrative acts. Their treatment is not unified in Switzerland. Much more it depends on the area concerned and blocking statutes may apply. With view to the role of the issue in Switzerland, efforts are underway to reconsider the regulatory situation. Overall, the doctrinal treatment of the subject is not very elaborated.

Recognition of Foreign Legislative and Administrative Acts

This chapter describes the recognition of foreign administrative acts in the Australian context. The models available to determine how administrative acts of one state can be given effect by other states are considered, including mutual recognition, harmonisation and uniformity of requirements. A key issue is whether the enforcement of another state’s administrative acts should require a prior recognition or authorisation. The chapter analyses the recognition and enforcement of specofoc administrative acts within the federation of Australia as well as Australia’s recognition and enforcement arrangements with different countries.

The action of a taxpayer when trusting in information concerning the content and interpretation of tax law obtained from tax authorities – between the constitutional principle of legalism and the principle of the protection of legitimate expectations

The EU has promoted the mutual recognition of national administrative acts and therefore helped provide extraterritorial effectiveness to the administrative decisions of the Member States. This phenomenon has been carried out in the EU through secondary legal norms, in areas where the EU has intense competence or powers. These community norms of secondary legislation are an expression of the principle of mutual recognition, which has been the axis around which the EU internal market has been built.

At the beginning of its development, public service’s object of regulation was the social issue, which was very present. In this period, public service included mutual aid of poor people, providing their food and placement. But later, social protection was set at the level of health care. For this reason it was even considered that the genuine public service is the service of public health care. Because of this it experienced a conceptual rebirth, meaning the creation of a larger number of public services that have fulfilled population’s needs as well. The state and collectivity have defined the objective and social interests, but in all cases, the services were done by social collectivities. Many other functions, not only social, were transformed like this in public rights that were realized through public services. Despite this the continuity in action is also required, meaning that the general interest should always be protected with public services activities. Administrative judiciary presents some type of control upon administration, respectively upon the administrative act, in first place the particular and individual administrative act. This kind of control is realized in the field of administrative activity through which it’s most important form of function is developed. The first experiences with administrative judiciary show us that it was installed organizationally in three ways, regarding to its carriers: • Administrative judiciary through administration bodies. • Administrative judiciary through regular courts. • Administrative judiciary through special administrative courts. These three ways of administrative judiciary installation installed three systems to solve administrative conflicts. Administrative judiciary through his administration bodies, in principle, wasn’t seen as a good choice, because by exercising this kind of control, she, in fact, would become a ‘judge in its own case’ and, consequently, her independence and objectivity would be questioned. Therefore, the best ways of administrative judiciary organizational installation are regular courts and special administrative courts. Administrative judiciary is spread all over European Union countries. According to the condition of 2007, in 16 countries of European Union, from 27 members in total, as in Germany, Austria, Belgium, Finland, France, Greece, Italy, Latvia, Luxemburg, Holland, Poland, Czech, Sweden, Romania and Bulgaria, administrative courts operate as specialized courts. What about the condition in other countries of European Union? In the other 11 countries of European Union, as in Cyprus, Estonia, Denmark, Ireland, Litany, Hungary, Malt, Spain, Slovenia, Slovakia, and Great Britain, specialized branches operate for the administrative right, within high (supreme) regular courts. Talking about judicial proceeding’s scale, we encounter two organization models: • Two-tiered model, • Three-tiered model. The two-tiered model is encountered in 11 states, while the three-tiered model in 15 states. From the large number of administrative judiciary’s priorities, we will mention only some of them. Primarily and above all, I would emphasize administrative judiciary’s priority in the ‘democratization of judicial system’. Another priority of administrative judiciary is its functional separation from the system of courts of the general competence. A detached priority of administrative judiciary is increasing citizen’s and public opinion’s belief in the legal work of the administration. And last, the protection of citizens from ‘administration’s arbitrariness’ is another priority of administrative judiciary. Among the important functions of administrative judiciary, two are essential: the preventive function and the repressive function. Administrative courts protect preventively individual’s rights. Of course that we can talk about other favors of administrative judiciary as well. Without listing them based on their importance, these favors of administrative judiciary should be seen as more opportunities to: • Specialize. • Resolve conflicts. • The creative role of administrative judiciary in the development of administrative right. From the way they have structured the bodies that ‘judge administrative disagreements’, countries in the region seem to be closer to the anglo-saxon system, because they haven’t accepted the existence of administrative courts. The conflicts are reviewed next to the courts of the random system. However, if the object, mode of trial or the followed procedure during administrative conflict would be taken as criteria to determine the system, then we could say that the legislation of countries in the region is closer to the way of judging the cases from administrative courts. All this tells us that administrative judiciary in Albania, Kosovo, Macedonia etc. will not find it difficult to adopt the system of administrative conflict’s trial through administrative courts. Administrative judiciary through administrative courts has another very special priority. We’re talking about the competences of administrative courts. Speaking the truth, administrative courts have full competences, not only in law’s enforcement, but in authenticating facts as well. Administrative court’s practice is different. In some of the countries with developed administrative judiciary, court’s control is focused in knowing if the issued decision was fair. In some other countries, administrative court’s control is focused in the material right and its finding.