Protection Of Legitimate Expectations Research Articles

Trends in the development of Russian administrative law: A comparative legal aspect

The article substantiates that during the period of development of administrative law as an independent progressive branch of law in the 20th and 21st centuries, two main achievements can be distinguished in world experience. The first is the evolution of the administrative process, administrative procedures, which changed the face of public administration, making it more transparent and democratic, since citizens got the opportunity not only to challenge administrative acts, but also to participate in the procedures for their adoption, protecting their interests even before the approval of the ruling decision. The second key achievement is the approval as categorical imperatives of such principles as legality, equality, proportionality, legal stability (protection of legitimate expectations), prohibition of overformalism. These beginnings are most consistently implemented in the Russian legislation on administrative responsibility, as well as in the legislation on administrative proceedings. In the field of positive public administration, the legislator is still less receptive to these novelties. At the same time, the inertia of the legislator is to a certain extent compensated by the activity of the Russian judicial bodies. The trend towards the perception of the main innovations of administrative law cannot be called into question by special administrative regimes (high preparedness for an emergency, a special military operation, etc.), including for the reason that such regimes, for all their importance, are temporary. Therefore, despite any difficulties, it is necessary to form a regulatory system designed for “usual” normality. At the same time, it is more important than ever to maintain a balance between the goals of rationalizing public administration (protecting public and state security) and protecting the rights of citizens. It is possible to predict further “splitting” of Russian administrative law. On the one hand, administrative legislation will be tightened and politicized, first of all, on the issues of interaction between the domestic administrative system and representatives of unfriendly foreign legal orders (as well as subjects of the Russian legal system, affiliated with them). But for the basis of the model of relations between the Russian public administration and the citizens of the Russian Federation, a predominantly different paradigm should be used — a human rights one.

Judicial Review of the State Aid Decisions on Advance Tax Rulings: A Last Resort to Safeguard the Rule of Law

In this article, the author provides a critical examination of various decisions addressing whether advance tax rulings on intra-group transfer pricing policies granted to multinational enterprises are illegal State aid under articles 107 and 108 of the Treaty on the Functioning of the European Union. Further, the author looks at whether the aid recovery process in these cases could be deemed to be contrary to the EU principles of legal certainty and the protection of legitimate expectations.

Nullity of Administrative Acts: Grounds, Legal Regime, Discretion

The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.

Legitimate expectations in civil proceedings: traditional legal understanding and synergetic approach

The subject of the study is legitimate expectations as an object of judicial protection in civil proceedings, as well as the principle of law, due to the hope of a person for a procedure in which the state will ensure effective protection of the violated right or legitimate hope for the state promise. Understanding of these categories directly depends on the method of interpretation and priority of certain forms of law as substantive and formal characteristics that express the law.
 The study is based on a systems approach. Given the purpose of the study, methods that generally allowed to determine the optimal type of legal understanding were used, which eventually made it possible to solve the problem of finding a tool of interpretation: analysis and synthesis, induction and deduction, formal legal and comparative legal, and other methods.
 Arguments are made in favor of the idea that the protection of legitimate expectations in terms of legal understanding and law enforcement within the natural, social concept of law and legal positivism is reduced to legal skepticism and only the probability of compliance with the requirements of legal certainty. The main result of the study is to join a synergetic approach to legal understanding, which provides a complex but clear algorithm for comparing formal and substantive legal phenomena in civil proceedings, which is a multi-stage test of proportionality as a universal tool which provides an opportunity to take into account the diversity of certain law enforcement circumstances in the case, ensuring the legitimate expectations of the person of substantive and procedural nature.
 The results of the study can be used in further research to determine the alleged interpretive mechanisms in civil proceedings that have the purpose of the alleged enforcement. This determines the practical significance of the results of the study in the case of application by courts of procedural rules, determined at its discretion.

STUCK AT A CROSSROAD? SUBSTANTIVE LEGITIMATE EXPECTATIONS IN ENGLISH LAW

AbstractIn “The Provenance and Protection of Legitimate Expectations” Forsyth argued that English law should protect substantive legitimate expectations. However, he was concerned that too great an expansion of legitimate expectations could lead to incoherence and intuitive decision-making. I argue that recent case law, and Forsyth's analysis, have clarified some of these inconsistencies. Nevertheless, the doctrine of legitimate expectations stands at a crossroads. Should it adopt a rules-based approach and narrow legitimate expectations, or a principled approach that embraces a broader conception? I argue that English law needs both for legitimate expectations effectively to balance legal certainty and substantive equality.

With the Wisdom of Hindsight

Assessment of the time at which newly introduced or amended legislation takes effect is difficult. This is due to the possibility that some legal rules apply to situations existing before their entry into force. These rules are in principle retroactively applicable. The CJEU evaluates retroactivity of (tax) legislation based on a distinction between procedural and substantive rules. Procedural rules are held to apply to proceedings pending at the time when they enter into force. Substantive rules are usually interpreted as not applying to situations existing before their entry into force. However, retroactive effect must be given to these rules in so far as it follows clearly from their terms, objectives or general scheme. This is to ensure observance of the principle of legal certainty and the protection of legitimate expectations. Violation of these principles is only allowed on legitimate grounds. This article compiles a framework constituting the general principles of Union law and Article 1 First Protocol European Court of Human Rights. This framework can be used to assess whether legal provisions are applicable before their entry into force. The framework is tested with a case study to the retroactive effect of Title III UCC provisions. Retroactive effect, Retroactivity, Legitimate expectations, Possessions, Customs law, Framework, Procedural, Substantive, Article 1 First Protocol, ECHR, CJEU, General principles of Union law, UCC, CCC, Entry into force

Legal Certainty – Protected Values and Partial Objectives: The Case of the Czech Republic

Legal certainty is an essential prerequisite for individuals’ autonomy, as lack of certainty prevents the planning of future activities and making rational decisions. As other key legal principles, it comprises an axiological quality which influences the interpretation of legal rules and the application of statutory laws. Thus, it should be adhered to by all branches of state power. Its objective is to promote several values that are all important for the protection of human rights: the rule of law, protection of legitimate expectations, general trust in law, prevention of arbitrary decision-making, inadmissibility of retroactivity. However, in some legal systems, the concept of legal certainty is slightly different. These differences also influence the extent and limits of legal certainty as it may not mean total rigidity and prevent necessary changes in statutory laws and decision-making. The reasonable balance is influenced by its axiological content. The article analyses the interpretation practice of the Czech Constitutional Court with the aim to determine the partial values inherent to the principle and categorise them according to their importance. Several partial objectives were determined by qualitative analysis. The quantitative analysis indicates that the key partial objectives include protection of the values comprising a general trust in the law, individuals’ legitimate expectations, and a certain degree of predictability of laws, administrative practice and courts’ decisions (uniformity, transparency, internal consistency and stability). Having identified these values, further research may be conducted as to how and to what extent expectations should be upheld.

Protection of Legitimate Expectations in Investment Treaty Arbitration: A Theory of Detrimental Reliance, written by Teerawat Wongkaew

Protection of Legitimate Expectations in Investment Treaty Arbitration: A Theory of Detrimental Reliance, written by Teerawat Wongkaew

Mecanismo de solución de controversias del MERCOSUR y derecho administrativo global

Initially, it will be analyzed what would be global governance and Global Administrative Law (DAG), as a regulator of its exercise, mainly through its principles that seek legitimacy and accountability. Among them, proportionality, protection of legitimate expectations, participation, the duty to motivate decisions and the right of appeal will be highlighted. However, the focus will be the regulation of trade exercised by MERCOSUR, in an attempt to verify to what extent the precepts of the DAG are respected. Focusing on the MERCOSUR dispute settlement mechanism, the research will analyze the evolution of this system, up to the current stage with a critical analysis from the DAG perspective, to know what agrees with it and what must evolve to improve the level of business governance that, as the case study analysis will show, is already reaching global levels. Finally, drawing the current panorama of the MERCOSUR dispute settlement system, the course towards evolution will be delineated to guarantee greater stability, efficiency and consolidation of the integration process, based on DAG and its contribution to the legitimacy of global governance.

Protection of legitimate expectations: Practice within European and Russian law

Founded in 1957, “Pravovedenie” (until 2018 know as “Proceedings of Higher Educational Institutions. Pravovedenie”) is one of the oldest and most authoritative academic peer-reviewed legal journals in Russia.

Legitimate Expectations and the Rule of Law in International Investment Law

The rule of law is one of the yardsticks by which both critics of and apologists for international investment law evaluate the regime, but it has been thus far insufficiently theorised. This chapter offers some thoughts on how the concept of the rule of law might be deployed to justify and delimit the contours of legitimate expectations in international investment law. The chapter deliberately adopts a formal, largely Razian approach to the rule of law, focusing on two of its dimensions: legal certainty and the prohibition on arbitrariness. It argues that legal certainty provides the most compelling justification for the recognition of legitimate expectations in international investment law, when compared to other rationales emerging from investment tribunals and the literature. The chapter analyses four common types of government action arising in investment cases through the lens of legal certainty, arguing that the strength of the claim for recognition of legitimate expectations depends on the government conduct at issue, with government interference with legal rights or formal decisions generating the strongest claim for protection, and changes to the extant legal framework generating the weakest claim. The chapter then identifies the prohibition on arbitrary conduct as the relevant touchstone for protection of legitimate expectations, explains how the two elements of the legal test fit together, and suggests that this interpretation accords with evolving state practice in treaty design, and more recent tribunal decisions concerning legitimate expectations.

Temporal effect of judicial precedent: USA experience

This study focuses on the operation of US case law in time. Currently, the Ukraininan doctrine pays little attention to the experience of the US legal system in this matter. Meanwhile, such experience is important due to the recognition in Ukrainian doctrine and practice of the sources of law related to the activities of courts.The author reviews the possible directions of operation in the time of the judicial precedent (in particular, retroactive, pure prospective and selective prospective effect), traces the history of their practical application at both the federal and state levels. The author then turns to in-depth analysis of the reasons that led to use a certain direction of operation in time by courts. In particular, the study focuses on the change in perception of the functions of the judiciary, in particular the recognition of judicial rulemaking as a factor having contributed to the widespread introduction of prospectivity. Therefore, the role of the legal predictability and the protection of legitimate expectations is regarded as the main grounds for the use of prospects.The author has analyzed the critique of prospectivity, which led to a widespread refusal to use it at the federal level (it continues to be used at state level). Attention is drawn to the following arguments of the critics: prospectivity does not comply with established rules on the role of the judiciary and judicial rulemaking (according to which setting the operation of legal rules for the future falls within the legislative prerogative; at the federal level such an approach is justified by the provision of the US Constitution), undermines the principle of stare decisis, makes the ruling merely a dictum without obliging the courts to adhere to it. Under the influence of the latter, courts tend to use selective prospectivity instead of pure prospectivity. It has become the object of criticism because of the inequity and the randomness of the distribution of the effects of change. The US Supreme Court on this basis has terminated its use as well.The author states that possibility of prospectivity remains a complex dilemma, far from a final solution. It reveals a conflict between such key values as legal certainty, equality, fairness, raises the question of the separation of powers. In addition, the problem reflects the issues of the nature of case law and the role of a judge in the functioning of the law. Despite the shift of American jurisprudence from the declaratory theory of judicial precedent, the latter continues to exist in the form of traditional retroactivity, which remains the main or the only form of the temporal effect of precedents in the United States

The European citizens’ initiative: Lost in admissibility?

The present article aims to examine the admissibility requirements of the European Citizens’ Initiative in the light of primary law provisions and general principles, in particular the principles of conferral, participatory democracy, legal certainty, protection of legitimate expectations and good administration, as reflected in the recent case law of the General Court. More specifically, it is examined how these principles and the primary law features of the instrument provide a clear theoretical underpinning for determining its material scope and serve as guidance for the legislator when regulating the admissibility mechanism and for the European Commission when applying the relevant rules. The recent Commission proposal on a new Regulation on the European Citizens’ Initiative is also assessed against this backdrop.

NAČELO ZAŠTITE LEGITIMNIH OČEKIVANJA U UPRAVNOM PRAVU EUROPSKE UNIJE I PRAVNA AUTONOMIJA DRŽAVA ČLANICA

Protection of legitimate expectations is a general principle of European Union law that has been developed through the case-law of the Court of Justice of the European Union. There are several unresolved issues that have been pointed out by the analysis of the said case-law. These are inter alia: When is the European Union legislator bound by legitimate expectations generated by a preceding piece of (changed) legislation, when does the preceding administrative practice generate legitimate expectations; the issue of the lack of legitimacy in case of speculative activities, the issue of differentiation between unlawful decisions and unlawful representations in generating legitimate expectations. Other issues concern the relation between the European Union law and the Member States’ legal autonomy concerning the possibilities for unlawful administrative acts to generate legitimate expectations and the expiration of the time-period prescribed by national law for revocation of unlawful administrative decisions beneficial for a party concerned. In the latter case, a Member State may not plead national administrative rules in order to justify its failure to comply with the principle of effectiveness of European Union law. The aim of this paper is to analyse these issues and determine whether the regulatory framework of the European Union can be improved in order to avoid potential problems in practice. The analysis is based on the case-law of the Court of Justice of the European Union and legal acts of the European Union along with Croatian and foreign literature on administrative, constitutional and European law. These issues illustrate the deficiencies of the current legal framework of the European Union with a number of applicable legal sources and ate the same time they emphasise the need for a codification of administrative procedure on the Union level. There have been several initiatives in this respect but with no real effect, even though there is a legal basis for such an endeavour prescribed by the Treaty on the Functioning of the European Union. Such a codification should prohibit unlawful administrative acts from generating legitimate expectations. This would also resolve the issue of different treatment of national administrative decisions that may not generate legitimate expectations. Furthermore, unclear and arbitrary interpretations should be avoided, as in the case of speculative activities the existence of which is not easy to determine. Finally, application of different criteria in different areas of law should be avoided if there is no basis therefor in the Treaties.

The Protection of Legitimate Expectations in the Recovery of State Aid: On the Brink of a European and National Principle?

The principle of legitimate expectations is a general principle, recognized by the European Union and a large number of her Member States. However, there is not a semantic uniformity in the European legal order. This literature review will focus from a comparative perspective on the principle of legitimate expectations as it exists in Belgian, Dutch and Union Law, applied to the recovery procedure of State aid, where procedural autonomy is conceded to member states. The corollary of this multi-layered judicial process is a tension between the European and the national interpretation of legitimate expectations. The central issue in this literature review can be posed as follows: How is the legitimate expectations principle interpreted and applied in the EU, the Netherlands and in Belgium? How do they interact in the recovery procedure of State aid and what are their mutual influences?

Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court's Decision in the Ajos Case and the National Limits of Judicial Cooperation

AbstractOn 6 December 2016, the Supreme Court of Denmark (SCDK) ruled on the grounds of Ajos case. The ruling concerned the scope of the principle of non‐discrimination on the grounds of age and whether a national court could weigh the principle of non‐discrimination on grounds of age against the principles of legal controversy, as the protection of legitimate expectations. The ruling has caused a great deal of controversy as the SCDK defied clear guidelines from the Court of Justice of the European Union (CJEU) in the ruling. Moreover, the case has been seen by some as an example of a new ‘sovereigntism’ in Danish law that is at odds with the project of European integration through law. This article explains the case from both an EU law and Danish constitutional law perspective. It concludes by providing a set of explanations of the new course of the SCDK in its relationship with the EU.

The Attribution of Acts: Towards a Principled Assessment under EU and National Private Law

Abstract: Attribution of conduct almost necessarily touches upon the essence of a person, be it a private person (a natural person or a private legal person) or a public person. The result of such attribution may substantially restructure the essence of that person. Through attribution, a court moulds the person to whom the act is attributed into a shape that fits in with the court’s understanding of justice or of what a desirable result is. To prevent the ends envisioned by the court to drive it mechanically to attribute conduct to a person as if it were that person’s own conduct, a refined and balanced approach to attribution has to be adopted. The court must balance the interests of the person to whom the act is to be attributed, the interests of society as a whole, and the protection of the legitimate and reasonable expectations of third parties. With regard to the attribution of unlawful acts, the reasoning of the Supreme Court of the Netherlands in the case of Knabbel en Babbel may be a source of inspiration: The conduct of a person will constitute an (unlawful) act of another person if it is generally held in society that the conduct must be considered to be that other person’s act. Attribution of conduct of person A to person B as if it were person B’s own conduct can follow from the nature of A’s conduct and capacity, viewed against the background of relevant acts, omissions, and circumstances within the sphere of responsibility of B. Rather than proceeding on the basis of one principle that may be upheld or rejected in favour of another principle, it is advisable to start assessing attributability on the basis of all interconnected principles and interests. The assessment of attribution, which takes place in fields such as state liability, state aid, competition law, public procurement law, and the provision of Internet services, will thus reflect a broader range of arguments. Those arguments may derive from the fields of international and supranational laws just mentioned, from the branch in which a legal person is active, from private law doctrines regarding attribution (the protection of legitimate expectations within the ambit of agency law, the attribution of acts to a state, to a company, or to an employer on the basis of authority, the attribution of unlawful acts to a state, to an enterprise, or to an employer), and from human rights law. An approach is thus called for that seeks to reconcile respect for different aspects of persons: One may act as an official who observes the applicable regulations or as a person making use of one’s freedom of expression. This will improve the level of substantive justice achieved by the judgment.

Application of Human Rights Principles for Protection of Legitimate Expectations in Immigration Cases

Australia has ratified a significant number of international human rights conventions over the past years.11 See generally, Michael Taggart, ‘Administrative Law’ [2000] New Zealand Law Review 439; ...

Application of the Principle of Protection of Legitimate Expectations in Recovery of Unduly Paid Subsidies in the Context of Judicial Coherence in the European Union

Application of the Principle of Protection of Legitimate Expectations in Recovery of Unduly Paid Subsidies in the Context of Judicial Coherence in the European Union

Protection of Legitimate Expectations in Brazilian Administrative Law: 80-year-old Widow of a Pensioner

This text is an (unofficial) translation of an opinion issued by Judge Ricardo Perlingeiro in a decision by a panel of judges on the subject of legitimate expectations. The case involved a pensioner who was the widow of a civil servant. She had serious reasons to believe in the stability and legality of the administrative action by which she was granted her pension benefits [although in fact the administrative authority’s decision had been erroneous]. That judgement set an important precedent for the Brazilian Federal Justice system (which mainly exercises jurisdiction over federal administrative law) because it establishes a comparative analysis between the “Berlin Widow” precedent (Oberverwaltungsgericht Berlin, Entscheidung, 14/11/1956. DVBl 1957, 503; DOV 1957,753; BVerwG, DVBl. 1958,652), German social legislation (§45 SGB X/Sozialgesetzbuch) and Brazilian legislation (Lei 9.784/99), breaking with the understanding that beneficial legal effects could never be derived from illegal administrative actions. The judgement also deals the distinction between objective legal certainty (mainly based on the expiration of a limitation period) and subjective legal certainty, meaning that the citizen had legitimate expectations because she was demonstrably unable to know that the administrative act that benefitted her was illegal (the notion of subjective legal certainty may be associated with the concept of human dignity). The text also discusses the ex tunc and ex nunc effects of legitimate expectations: the essential issue is whether or not the court should uphold an illegal administrative action awarding benefits to a widow pensioner who believed in the legality of the decision by allowing her to not only to keep the payments received “illegally” (ex tunc effect) but also to continue receiving such payments in the future (ex nunc effect).