Portuguese Administrative Courts and Foreign Administrative Acts: A Road Yet to Be Taken

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.

Article 47 of the Constitution of Kenya 2010 has constitutionalised the right to be given written reasons for administrative actions and decisions. The same has been set out in Sections 4 and 6 of the Fair Administrative Action Act 2015. Based on the amber light and public administration theories, this paper argues that the right to be given reasons for decisions taken by administrative authorities has not only been used as a tool to offer legal protection to individuals adversely affected by administrative action but also helps in enhancing good public administration in Kenya. On the one hand, courts of law have considered the right to be given written reasons both as a constitutional ground for judicial review of administrative action under Article 47 of the Constitution and as a remedy available in judicial review as stated in Section 11 of the Fair Administrative Action Act. It has provided affected individuals with a basis to challenge an administrative action and decision through a judicial review process that not only preserves but also develops and progresses relevant common law principles. On the other hand, courts of law have viewed the right to be given written reasons as a tool aimed at enhancing public administration by ensuring that public administrators reflect on the lawfulness, quality, rationality, and fairness of their actions. However, the objective of Section 6 of the Fair Administrative Action Act may not be fully achieved because it does not expressly require public ad-ministrators to give adequate reasons to persons whose rights have been adversely affected by administrative action. Besides, it does not provide the criterion to be used to determine when the departure from the requirement to provide reasons for administrative actions is reasonable and justifiable.

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.

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.

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

This chapter considers the impact of the Miller decision on the relationship between UK and EU law. In keeping with the theme of the book, the ensuing discussion places Miller in the broader context of the case law and legislation that have shaped that relationship. The analysis begins with the relationship between UK and EU law pre-Brexit. The conceptual architecture of EU law is examined through consideration of its foundational precepts. This is a condition precedent to the discussion of the conceptual architecture of EU law in the UK prior to Brexit. The conceptual frame through which EU law was accommodated in the UK was legislative and common law pragmatism, coupled with statutory and judicial reserve grounded on normative principle. This admixture is evident in case law and legislation prior to Miller, and it underpins the Supreme Court’s reasoning. Miller represents continuity with the status quo ante in this respect, not a novel reconceptualization of EU law within the UK legal order. The focus in the second part of the Chapter shifts to the relationship between EU and UK law in the period between the triggering of Article 50 TEU and exit from the EU. There is discussion of the political and legal forces that shape the withdrawal negotiations. The UK remains fully bound by EU law pending exit, with the rights and obligations of membership, subject to qualifications laid down in the Lisbon Treaty. The corollary is that the CJEU retains its status as the ultimate authority on issues of EU law that are central to the withdrawal agreement, and subsequent agreement on trade and related matters. Thus, if matters require legal resolution, it would be for the CJEU to make the ultimate determination on matters such as revocability of the Article 50 withdrawal notice; the UK’s legal liability in relation to the costs of exit, with or without a withdrawal agreement; and the compatibility with the Lisbon Treaty of any transitional deal struck between the EU and the UK. The final part of the chapter concerns the relation between UK and EU law post-Brexit. The discussion begins with Miller and explains the ways in which the decision determined essential elements of the conceptual frame for that relation in a post-Brexit world. The remainder of this section explores the degree of control that the UK exercises over the connection between the two legal orders when we leave the EU. It might be thought that this is a non-issue, in the sense that the UK will have unfettered choice in this respect in a post-Brexit world. This is mistaken. The legal and political reality is that the control and choice wielded by the UK concerning the future relationship between UK and EU law ranges on a spectrum. It has maximal, albeit not absolute, control insofar as it is for the UK to decide on the terms of the European Union (Withdrawal) Bill 2017, including the extent to which it allows EU law and CJEU decisions to have any weight post-exit. It has only partial control over the relationship between UK and EU law in important areas where the UK wishes to be recognized as having equivalent regulatory standards as those in the EU. The UK has no control over that relationship insofar as EU regulatory provisions will continue to apply to any UK firm trading in the EU post-Brexit; while it would in theory be possible for the UK to enact separate regulatory standards the double-regulatory burden thereby imposed on UK industry renders this highly unlikely.

The EU institutions and agencies have become increasingly involved in enforcing EU law directly vis-à-vis private actors. A number of such EU entities have also acquired the so-called emergency powers, which allow interference with the legal position of a private party. Given the lack of research in this area, the question that this article addresses is whether relevant safeguards have been introduced to ensure the rule of law in such situations to prevent the abuse of executive discretion by public authorities. What are the relevant safeguards in the emergency in the EU in the first place? Having analysed relevant EU legislation and case law, the article offers a complete overview of all the existing EU entities with the emergency powers and shows a great diversity in the extent to which the EU legislator has regulated procedural safeguards in relevant law. The article discusses what safeguards need to be ensured in an emergency and argues for clarity of legislative frameworks in this respect.

The contemporary public law jurisprudence of the High Court has transformed the basis of judicial review of executive action, removed traditional restraints on the scope of executive power, reinforced the separation of powers, and transformed the federal compact by identifying new constitutional limits on State institutions. The High Court has, over the last two decades, emphasised the constitutional dimension of a number of terms found in the Constitution by characterising them as “constitutional expressions”. These expressions have been imbued with substantive force by identifying a bundle of essential characteristics of each such expression, being characteristics that Parliament cannot alter. The impact of this new approach on executive power has been the emergence of a constitutional foundation for Commonwealth and State administrative law, a renewed focus on the constitutional foundation of executive authority, and the extension of the separation of powers doctrine to State institutions. This development is of profound significance for the entire range of interaction between the judiciary and executive government.

The Court of Justice of the European Union faces a wide variety of human rights decisions. In common with national courts, it has to ensure that the actions of the European Union administration and legislature comply with human rights. These human rights are found in the general principles of Community law, including, inter alia, those of the European Convention of Human Rights, in addition to the EU Charter of Fundamental Rights and Freedoms. When doing so, the CJEU may find that it is judging not only the actions of the institutions of the European Union, but also actions of the administration and legislature of the Member States as they implement provisions of EU law, or act as agents of the EU administering EU law. In addition, the CJEU will adjudicate on actions of the Member States when they are acting within the sphere of European Union law. This can occur when Member States derogate from other provisions of EU law on the grounds of protecting human rights, or where Member States fail to implement European Union law provisions that either directly or indirectly protect human rights. This diverse nature of the human rights jurisdiction of the CJEU poses unique problems for human rights adjudication in the EU. The Court is at one and the same time protecting human rights from abuse by its own measures and policing the activities of its Member States. Moreover, the lines between these roles are blurred. For the CJEU to provide a human-rights compatible interpretation of the provisions of a Directive, for example, not only restricts the actions of the EU legislature, but also limits the actions of Member States. In addition, when the CJEU takes on the role of policing the actions of Member States, it does so within the context of the ECHR, given that all Member States, and potentially soon the EU itself, are signatories to the ECHR and the provisions of the ECHR are sources of general principles of Community law as well as being mirrored in the first Chapter of the Charter. Yet for the CJEU to perform the same function as the European Court of Human Rights would lead to replication of roles, as well as cause problems for the CJEU’s assertion of the supremacy of directly effective EU law over national law which would appear to run contrary to the margin of appreciation granted by the ECtHR to its signatory States. This chapter aims to provide the groundwork for developing a theory of human rights adjudication for the CJEU, looking specifically at the complexities that arise when deciding cases that require control over actions of Member States. It builds on consensus found in the literature calling for the need for the CJEU to be sensitive to competing requirements of consensus and divergence in the protection of human rights, drawing on the constitutional pluralism underpinning the EU. It will first explain the need for both uniformity and diversity in human rights protections in the EU. It will then explain how these needs can best be met through a dialogue theory of human rights adjudication, with Article 267 facilitating the provision of varying degrees of authority to determine rights-issues to either the CJEU or the national courts. The final section discusses the factors that should influence whether a rights-issue is more suited for resolution by the CJEU or national authorities, building on Weiler’s theory and explaining its precise application through a series of examples drawn from recent case law.

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.

This article aims to address the interpretation that has been made by Portuguese courts in relation to the concept of “communication of the work to the public” enshrined in Article 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, duly transposed into the Portuguese legal order by Law No. 50/2006 of 24 August, which culminated in the drafting of the case law unifying judgment No. 15/2013. By verifying its content and analysing the case law of the Court of Justice of the European Union (hereinafter CJEU), concerning the interpretation of that concept, we conclude that the said case law unifying judgment does not comply with EU law. Therefore, we will list, on the one hand, the inherent consequences regarding the upkeep of the interpretation that has been held by the Portuguese judicial authorities and, on the other, we will suggest solutions for the resolution of similar cases by appealing to the principle of conforming interpretation.

Based on the analysis of contemporary scholarly approaches to defining the functional purpose of first-instance courts in ensuring judicial protection of citizens’ rights during pre-trial criminal proceedings (also referred to as judicial oversight), this paper substantiates the classification of judicial review as an independent function of the court. An integral part of judicial review is the consideration of complaints in accordance with Articles 125 and 125.1 of the Criminal Procedure Code of the Russian Federation. The results of the study of judicial statistics revealed low efficiency of judicial review of complaints, due to the lack of correlation between the legal regulation of this institution and law enforcement. Given the expanding role of courts in pre-trial proceedings while judicial resources remain limited and judges must balance case adjudication with review functions, the paper proposes establishing priorities for the judicial review of complaints to ensure the proper functioning of the judicial protection mechanism. To prevent judicial review from developing along an extensive path and duplicating/replacing the powers of investigative supervisors and prosecutors before the appearance of investigative judges in criminal proceedings, it is necessary to first narrow the scope of judicial discretion and focus on the rightsprotective aspect of judicial review of complaints. When considering complaints, the court must act as a kind of compensatory mechanism, pointing out the shortcomings of departmental control and prosecutorial supervision, through which the protection/restoration of the rights of citizens violated by a crime/criminal prosecution must be ensured. Addressing these challenges will require improving the quality of regulatory frameworks, limiting judicial review to complaints about actual violations that have already been examined by investigative supervisors and prosecutors, reducing the scope of judicial interference in the procedural actions of investigators and prosecutors, and developing new evaluation criteria for judicial complaint review that reflect the actual state of citizens’ legal protection during criminal case initiation and investigation.

This special issue explores how national courts review foreign administrative acts within the EU’s integrated administration framework. It examines whether and how courts engage with transnational administrative acts arising from horizontal cooperation between Member States in fields such as taxation, migration, pharmaceuticals, and social security. While principles, such as territoriality and mutual trust, have historically constrained judicial review of foreign acts, recent case law from the Court of Justice of the EU suggests an evolving approach that mandates judicial scrutiny in certain cases to safeguard the right to an effective remedy under Article 47 of the Charter of Fundamental Rights. Through a comparative analysis of national court practices in six Member States (Germany, Greece, Italy, Portugal, Sweden, and France) this study identifies significant disparities in judicial engagement: some jurisdictions actively review foreign acts under EU law while others remain reluctant to do so. The findings highlight gaps in judicial protection and the emerging influence of mutual recognition and sincere cooperation principles. It concludes that while national courts are beginning to acknowledge their role in reviewing transnational administrative acts, inconsistencies in approach and limited case law suggest the need for further legal development and research to ensure effective judicial protection within the EU's integrated administration system.