Administrative Tribunals Research Articles

The Administrative Tribunal of the European Stability Mechanism: ESMAT at Ten

The Administrative Tribunal of the European Stability Mechanism (ESMAT) is an international administrative tribunal hearing appeals brought by current and former staff of the European Stability Mechanism (ESM), which is an international organization. Sitting in Luxembourg, though separate to the European Union (EU) and outside the EU legal order, the Tribunal has its own Statute and Rules of Procedure to supplement the ESM Treaty. As ESMAT reaches the age of ten, and having delivered its first judgments, this articles probes ESMAT’s legal design and rulings to-date to determine the credibility of the international administrative tribunal in providing redress, as an internal justice regime in a standalone international organization. It finds that despite the preadolescent age of ESMAT, it is a well-designed international tribunal, established by law, and can provide the necessary judicial remedies to parties where necessary, given its applicable law.

Resolving labour disputes within african international organizations

The article describes the internal mechanisms for resolving labour disputes between staff and administration within african international intergovernmental organisations, such as: African Union, Southern African Development Community, Economic Community of West African States. It is indicated that within the African Union there are informal and formal stages of dispute resolution – an appeal for review to the chairperson or competent authority of any other body and an appeal to the Administrative Tribunal. It is noted that the Administrative Tribunal is competent to consider applications for violations of the Staff Rules and Regulations; non-observance of contracts of employment and any other acts of employment; and, in certain cases, complaints about disciplinary sanctions. It is emphasised that the feature of protection of labour rights of the African Union staff is the provision enshrined in the Staff Rules and Regulations, according to which a staff member may, under certain circumstances, appeal to the African Court of Justice and Human Rights. It is stated that the Southern African Development Community Administrative Tribunal has jurisdiction to hear and resolve labour disputes between the Community Secretariat and any of its institutions. The Tribunal has two levels: First Instance and Appeal Board. It is noted that the system of internal labour dispute resolution of the Economic Community of West African States provides for the submission of an application for review, hierarchical recourse, and referral of the case to the Committee for Conciliation of Staff and Dispute Resolution. An Inter-Institutional Appeals Committee is established to deal with disciplinary appeals in relation to the application of the Staff Regulations, to which employees or their next of kin can apply. It is stated that the staff of any institution may apply to the Court of Justice of the Community after the staff member has exhausted all appeal procedures available to the official under the ECOWAS Staff Rules and Regulations.

기후변화 대응에 대한 국가의 책임 - 프랑스 기후소송 판결의 함의(含意)

Climate change lawsuits are increasing. In the process of Constitutional complaints by the Constitutional Court, judgments on climate change lawsuits in European countries are expected to have an impact. The French Administrative Court also recognized the existence of “ecological damage” caused by climate change and the state's responsibility for it. In this paper, we reviewed ‘Grande-Synthe’ Community case of Council of State(Conseil d’Etat) where local governments are held accountable for the failure of government actions to comply with the climate change agreement of Paris(2015). And administrative tribunal of Paris, in the case of ‘Affair of the Century(l’affaire du siècle)’, recognized the occurrence of ecological damage caused by climate change and the government's liability for it. We reviewed it in detail with the following: Ⅰ. Climate change litigation 1. Administrative Justice courts 2. Constitutional Court Ⅱ. Implication towads Korean Court of Justice 1. Future generation fundmental right 2. Ecological responsability

A lounge of one’s own: Art, gender, discrimination and the law

In this essay, the authors consider the recent discrimination law decision of the Tasmanian Civil and Administrative Tribunal in relation to the ‘Ladies Lounge’, an artwork by Kirsha Kaechele at the Museum of Old and New Art in Hobart. The article first considers the question of whether there was unlawful direct discrimination before turning to the application of defences (referred to as ‘exceptions’ in the relevant legislation, the Anti-Discrimination Act 1998 (Tas)). The authors highlight the particular tensions that arise at the interface of law and art, particularly when the art seeks to create discomfort.

The Freedom of Association as Seen by the International Administrative Tribunals

Abstract Rules governing international civil service as compared with national law are not always clear. The ways that international administrative tribunals protect the principle of the freedom of association and identified the rights by which this principle is manifested and realised are interesting as the realisation of those rights is not always obvious in international organizations. The right to organise, the right to strike, the right to be consulted and the collective bargaining are not words that can be found in constituent documents of international organizations. But they are indispensable for proper function of the organizations. The case law of the tribunals, which this article wishes to present, thus contributes to creating a harmonious workplace for officials of international organizations.

Advisory Opinion of ICJ on the Effects of the Awards of Compensation Made by the Un Administrative Tribunal

Advisory Opinion of ICJ on the Effects of the Awards of Compensation Made by the Un Administrative Tribunal

Sun from Behind the Clouds: the Appeals Board of the European Centre for Medium-Range Weather Forecasts

Abstract One of the lesser-known regional international organizations in Europe is the European Centre for Medium-Range Weather Forecasts (ECMWF). It has a mandate to undertake tasks such as the production of weather forecasts, conduct scientific research to improve meteorological projections, maintain extensive datasets, and to better coordinate European meteorological infrastructure. The Centre has three sites across three European states where it has over 400 staff, and given it is immune from suit, its staff members only have an internal justice mechanism to resort to in the event of employment/pensions disputes. Little is known about the ECMWF Appeals Board given its untransparent nature. As uncovered in this article, it has undergone partial reform, and simultaneously, there has been an uptick in the number of cases. This article analyses these developments and highlights that more must be done to align the ECMWF Appeals Boards with the features of other international administrative tribunals.

Procedural Deficiencies in Administrative Tribunals of Bangladesh: Exploring Alternative Tactics

The present article demonstrates that a troublesome reality is now being faced by Administrative Tribunals, leaving a room highlighting problems that have been unaddressed since its inception. It is found that the jurisprudential concept of locus standi, so far as Administrative Tribunals are concerned, is not wide and comprehensive, even then it need not be extended due to its short domain of jurisdiction as to subject matter. Furthermore, there is no scope to condone the delay according to relevant provisions. In addition, the Act of 1980 does not mysteriously fix a period for the restoration of a case or setting aside an ex parte order. Whereas most of the litigations in Tribunals concern a lack of procedural fairness in departmental proceedings, therein the principle of ‘Natural Justice’ is not recognized. These lapses seriously endangered the future of this justice system but neither the legislature nor the judiciary has so far taken any serious step to check these realities. Therefore, scattered procedural complexities have been accommodated in this article based on the Act of 1980 as well as the Rules of 1982; and cases and interviewing have been used as the point of reference, but at the same time earnest effort has been spent for finding out solutions, guided by expediency and tradition.
 Dhaka University Law Journal, 2023, 34 (2), 67-95

The Compliance of Regional Autonomy with State Administrative Court Decisions

Divergent mechanisms governed by several laws in force in Indonesia continue to impede the implementation of decisions rendered by state administrative courts. As a result, issues about the nature of government autonomy, legal consciousness, leadership structures, and political determination arise in the context of regional autonomy. The employed research methodology is normative juridical research, which analyzes articles in the law on state administrative courts about the execution of state administrative court institutions' decisions to identify and formulate legal arguments. This study demonstrates discrepancies in how decisions are executed by state administrative tribunals in Indonesia and several challenges associated with their practical implementation. In order to address these challenges, four conceptual frameworks of executive authority have been developed to establish a mechanism for implementing administrative court rulings in a globalized environment. The evolution model of legal instruments for implementing decisions of state administrative courts, the defense model for various types of implementation such decisions, the law enforcement model for executing state administrative courts, and the execution model as a question vacate.

Administrative law as a determinant of public health

Administrative law comprises the rules, values, and processes by which government and regulatory decision-making is subject to administrative monitoring, review, and accountability. It impacts public health in two ways: through the design, powers, and processes of institutions that enforce administrative law; and through the substantive rules of administrative law. Yet despite its fundamental regulation of the way in which public health decisions are made, insufficient research has been conducted on administrative law as a determinant of public health. Administrative law and public health operate as siloed academic disciplines with very little cross-disciplinary collaboration, engagement, or understanding. This results in major, untapped research opportunities exploring how administrative law could contribute to an optimized model of planetary health in both higher income and lower-middle income countries. Put simply, a holistic, global view of the determinants of public health must take due account of the accountability rules and controls that regulate how public health, and other, decisions are made. This commentary is a call to action to better understand how administrative law mechanisms, such as judicial review, administrative tribunals, ombudsmen, information commissioners, public auditors, and human rights monitors, can be designed or redesigned to better promote sustainable public health outcomes.

Application of natural language processing in residential building defects analysis: Australian stakeholders' perceptions, causes and types

The issue of defects in residential buildings has been reported to impact the performance of the architecture, engineering, and construction (AEC) industry. Defects can increase the construction cost, significantly contribute to the increment of construction waste and cause stress to home occupants. To minimise these effects the first step is to understand the main causes of building defects (Building defects). To date, the research specific to building defects in the Australian context is scant. Limited research considered the perceptions of all the possible stakeholders that are responsible for the generation and management of defects. Hence, this study aims to explore the causes of building defects by considering the perceptions of various stakeholders using the machine learning method. The research employed a mixed approach that involve qualitative content analysis and natural language processing (NLP) of court cases obtained from the Victorian Civil and Administrative Tribunal, the legal entity that deals with building-related disputes. NLP resulted in extracting defect sentences based on defect keywords using the KeyBERT algorithm and pre-trained deep learning embedding models including BERT-Base, RoBERTa-Base, and fastText. The content analysis showed that the top three reasons for building defects are related to workmanship, design, and materials. The three main stakeholder groups involved in building defect management were builders, owners and sub-contractors. Drawing on these findings, a proactive defect prevention framework was developed to guide building defect risk management.

The Glyphosate Saga in Luxembourg: The Annulment by the Judiciary of the Legislative Ban of Glyphosate-Based Products – A Breach of European Union Law?

Administrative Tribunal of Luxembourg, 15 July 2022, case no 44377 and Court of Appeal of Luxembourg, 31 March 2023, case no 47873COn 15 July 2022, the Administrative Tribunal of Luxembourg annulled the decisions by which the Luxembourg Minister for Agriculture, Viticulture, and Consumer Protection had banned all glyphosate-based products. On 31 March 2023, the Court of Appeal upheld the ruling of the Administrative Tribunal. The ground of annulment was the breach by the Luxembourg State of the adversarial principle enshrined in Article 9 of the Grand-Ducal Regulation of 8 June 1979. Yet, for the sake of completeness, the Administrative Tribunal and the Court of Appeal verified the compliance of the decisions banning glyphosate-based products with Articles 36, 41 and 44 of Regulation no 1107/2009. Against this backdrop, this case note provides a critical assessment of the rulings of the Administrative Tribunal and the Court of Appeal from the perspective of European Union law. This analysis might prove to be useful as it enables us to shed light on the conditions allowing Member States to withdraw the authorisation of plant protection products under Regulation no 1107/2009 as well as to identify the hurdles that Member States might need to overcome when banning glyphosate-based products from their territory.

Realizacja postanowień Konstytucji Rzeczypospolitej Polskiej z dnia 17 marca 1921 roku w zakresie wymiaru sprawiedliwości

The article – divided into four sections – is centered around the implementation of the provisions of the Constitution of the Republic of Poland of 17 March 1921 in the area of the administration of justice. The first section discusses the work on a draft constitution carried out between 1917 and 1921, with particular focus on the judiciary. The second analyses the content of the provisions of the Constitution referring to the administration of justice. The third deals with the judicature. In this section, the author discusses the organisation and work of, among others: the State Tribunal, the Supreme Administrative Tribunal, the Competence Tribunal, and courts of common pleas, paying particular attention to the unimplemented norms of the Constitution – mainly the failure to establish administrative courts of different instances with the participation of citizens, and the absence of citizens serving as justices of the peace or jurors. Two issues played important roles in the implementation of constitutional norms regarding the administration of justice. The first was the political situation in Poland after the 1926 May Coup. The second was the amendments to the Constitution introduced in connection with the entry into force of the 1926 “August Amendment”, that gave the President of the Republic of Poland the power to promulgate ordinances having the legal effect of legislative acts. This allowed the Polish government of that time to carry out, to a great extent, a standardisation of the courts of common pleas, which was accomplished by promulgation of the Ordinance of the President of the Republic of Poland of 6 February 1928 – the Act on the Organisation of Courts of Common Pleas. Additionally, between 1929 and 1932 the government embarked on an extensive program of dismissing existing judges and appointing new ones. Importantly, this was accompanied by a change in the line of jurisprudence of the Supreme Court and the Supreme Administrative Tribunal, according to which courts lost their authority to examine the constitutionality of ordinances promulgated by the President of the Republic of Poland. In the final section of the article – the summary – the author notes that the implementation of the norms of the Constitution concerning the administration of justice was, to a great extent, non-existent, given the political situation after the May Coup. It further points out that the same was also true in the period between 1944 and 1952, during which the basic principles of the Constitution of 17 March 1921 applied.

Establishment and development of legal regulation administrative judiciary in the Republic of Poland

The article analyzes the establishment and development of the legal regulation of administrative proceedings in the Republic of Poland. It is noted that the organization and activity of administrative proceedings in the restored Republic of Poland was based on two models: the previous Austrian administrative proceedings and the Prussian administrative proceedings. As a result, the formation of the Supreme Administrative Tribunal was foreseen in the Republic of Poland, which testifies to the significant influence of Western European traditions. The legal basis for its creation and activity was the law of August 3, 1922, the powers of which were specified by the regulations of the Supreme Administrative Tribunal.
 The competence of the Supreme Administrative Tribunal included the decision on the legality of decisions and orders in the sphere of governmental and self-governing administration. It was established that the restored Polish state, from the first days of its existence, began activities aimed at forming borders, state authorities, the army, law enforcement agencies, including the judiciary, namely the creation of an effective Polish judicial system and judiciary. It is described that the formation and development of the judicial system of the Second Polish-Lithuanian Commonwealth was a long process and included two stages, which can be divided into two stages using the characteristics of the functioning of various systems of judicial bodies, their adaptation to new socio-political conditions and the growth of deformations caused by the violation of democratic principles of the March Constitution of 1921 and the creation of a unified system of general courts and its reformation in the direction of anti-democratic principles.
 It has been established that the foundations of the judicial system in Poland are the Constitution of 1921, which recognized the courts as a separate branch of government, independent of the executive and legislative powers, which in practice was not always implemented. It is noted that a feature of the judicial system of the Republic of Poland was the introduction of administrative proceedings, the formation of which took place immediately after the restoration of the Polish state. Attention was drawn to the fact that after the Second World War until 1980 there was no separate administrative court in the Republic of Poland. Administrative justice was revived in Poland on September 1, 1980, when the High Administrative Court, established under the law of January 31, 1980, began to operate.

Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners?

Administrative Tribunals in Canada: Constitutional Subordinates or Equal Partners?

Uloga i značaj međunarodnog administrativnog prava u regulisanju statusa službenika međunarodnih organizacija

The aim of this article is to identify, starting from the theoretical framework for considering the activities of international organizations and relevant institutional practices, the basic factors of the legal status of international officials as established in the rules of international administrative law. The article, first of all, defines the concept of international administrative law. Then, the article clarifies the international legal framework for the autonomous regulation of the status of international civil servants by international organizations, and it analyzes the legal sources of international administrative law. Finally, the article points to the influence that international administrative tribunals had on constituting international administrative law and ensuring its effectiveness. The article demonstrates that the basic features of the international civil service are contained in the fact that international organizations, as independent subjects of international law, autonomously regulate issues of importance for their functioning by adopting their own rules. The article also showed that the effectiveness of international administrative law is ensured through the operations of the international administrative tribunals, as a type of judicial body established within the institutional system of an international organization. The article concludes that international administrative law is particular for each international organization, but that there is a similarity between certain concepts and principles that exist in the rules of various international organizations. Considering importance of the international officials in executing the functions of an international organization, international administrative law, as a legal framework that regulates their position and guarantees their independence from individual governments, is of essential legal relevance for the smooth operation of the international organization as an international legal person.

The Jurisdiction of Administrative Courts and Common Courts in the Industrial Property Cases from a Historical Perspective

The origins of the administrative court system go back to the period of building of the system of government in the Second Republic after Poland’s partitions and are associated with the establishment of the Supreme Administrative Tribunal (SAT) in 1922. Significant changes were made to the administrative court system by the Polish Constitution of April 2, 1997, which, in Article 175(1), stipulates that administrative courts – in addition to common courts and military courts – administer justice. Administrative courts are therefore a separate part of the judiciary based on a two-instance adjudication system. In this paper, the author presents the origins of the administrative court system, including the Supreme Administrative Tribunal, the Supreme Administrative Court (SAC). The author indicates the models of the administrative court system, its essence, and the role it plays in the justice system. Then she analyzes the jurisdiction of administrative courts in industrial property cases from a historical perspective An interesting issue in this context is the existing dualism of the consideration of industrial property cases by administrative courts and by common courts. An important change that came into effect on July 1, 2020 pursuant to the Act of February 13, 2020 on amendments to the Code of Civil Procedure (CCP) was the introduction of separate proceedings in the intellectual property cases and the establishment of the so-called IP courts (intellectual property courts), and the impact of these changes on the development of relations in terms of the jurisdiction of administrative courts and common courts.

Z dziejów sądownictwa administracyjnego na Górnym Śląsku w czasach II Rzeczypospolitej. Sprawa Józefa Kormana przeciwko Dyrekcji Policji w Katowicach

The article aims to show the practice of the Voivodship Administrative Court in Katowice, operating during the Second Polish Republic, which – in a broader context – will allow for an assessment of its activity. The Voivodship Administrative Court in Katowice, which was established only in 1922 after the annexation of part of Upper Silesia into the Republic of Poland, has not yet been subjected to a comprehensive analysis. Research into its operation is not facilitated by the small number of surviving files, which were heavily depleted in the process of disposal. The preserved case files, which are very few in number, provide insight into the course and results of disputes adjudicated before the Voivodship Administrative Court. One of them is the case of Józef Korman v. the Police Directorate in Katowice, which is the subject of this study. It is an interesting case study for a number of reasons. This is primarily because it was one of the few cases heard before the Highest Administrative Tribunal in Warsaw as a result of an appeal filed against the judgment of the Voivodship Administrative Court in Katowice. The study is based on the case files preserved in the State Archive in Katowice, sources of law of that time and specialist literature. The article uses a historical-legal methodology.

Charakterystyka działalności poselskiej Hermana Liebermana w latach 1922–1926 dotyczącej Najwyższego Trybunału Administracyjnego

The article aims to present Herman Lieberman’s parliamentary activity in the years 1922–1926, concerning the enactment and amendment of the act on the Supreme Administrative Tribunal of 3 August 1922. The main reason for exploring this problem is the fact that his parliamentary activity, focusing on the first Polish administrative court, was omitted from his memoires and his official biography, written by Artur Leinwald. Apart from that, the topic of this article coincides with the centenary of the Supreme Administrative Tribunal. Furthermore, this publication shows how the Sejm and the Supreme Administrative Tribunal operated before the may coup of 1926, because afterwards the new executive was progressively forcing the Supreme Administrative Tribunal to cooperate with government and to support state policy. The greatest number of sources concerning Lieberman’s parliamentary activity in the interwar period can be found at the Sejm Library’s website. Therefore, the methodology for writing this article consisted in the analysis of the bills and protocols of the Sejm, the Constitutional Committee, and the Legal Committee. These sources show that Herman Lieberman was very involved in the legislative work concerning the Supreme Administrative Tribunal. Analysis of these documents makes it possible to conclude that the parliamentarian was a great supporter of setting up this court in Poland. Herman Lieberman was sure that the Supreme Administrative Tribunal would be the guarantor of the protection of individual rights and freedoms.

Przekazanie sądowi powszechnemu sprawowania kontroli administracji publicznej jako odstępstwo od kognicji sądów administracyjnych na przykładzie Sądu Ochrony Konkurencji i Konsumentów

The goal of the article is to present the historical development of the exception from the rule of the court administration review by administrative courts, which is the transference of its conducting to the Antitrust Court (currently the Court of Competition and Consumer Protection). The additional goal is to answer the question of the grounds of the transference to a popular court the jurisdiction in antitrust cases, and then in regulatory cases. Two theses were formulated by the authors. The first thesis states that the Polish antitrust court model were based on the liberalization processes. The second thesis assumes that, despite faulty solutions in the procedural area, the functioning of the jurisdiction of the Court of Competition and Consumer Protection contributed to the development of competitive economy in Poland. The authors begin their consideration with the Act from 17th March 1921. The Constitution of the Republic of Poland (the so-called March Constitution) and the Act of 3rd August 1922 on the Supreme Administrative Tribunal. In addition, they analyze the liberalization processes that took place in Poland after the changes of 1989. The second part covers the genesis of the Competition and Consumer Protection Court, the evolution of the jurisdiction of the Antimonopoly Court from 1990 to 2017 and the analysis of the issue of hybrid appeal proceedings. In this part, the authors refer to draft laws, transcripts of the sittings of the Sejm of the Republic of Poland and analyze the statistics of the case law of the Court of Competition and Consumer Protection from 1992 to 2020. The deliberation shall be based on legal regulations and scientific papers. The analysis shall focus on the proposed bills and on the related legislative process. The following methods were applied in the article: dogmatic-legal and analytic-synthetic.