Public & Administrative

Seventy-five days. A decision of a public authority can be challenged by recourse to the Administrative Court under Article 146 of the Constitution, and Article 146.3 runs the period from publication of the decision or act or, where it is not published and in the case of an omission, from the day it came to the applicant’s knowledge, unless a law expressly provides a different period. Miss it and the claim is barred outright, however strong it was. This is the first thing to establish and the easiest to get wrong, because the date that counts is often not the date on the letter.

An executory administrative act, meaning a decision that produces legal effects. Refusals, revocations, conditions attached to a permit, disciplinary decisions and the outcomes of tender procedures can all qualify. A preparatory step, an internal opinion or a purely informative letter generally cannot, and mistaking one for the other costs the deadline.

Article 146.2 allows a recourse by a person whose own existing legitimate interest is directly and adversely affected by the decision, act or omission, whether that interest is held as an individual or as a member of a community. Three words carry the weight. The interest has to be yours, it has to exist, and the effect on it has to be direct. Objecting because a decision looks wrong in principle is not enough, and a recourse can fail on that point before the merits are reached at all.

Not by itself. Section 11A of Law 131(I)/2015 creates automatic suspension for one defined category only, a recourse against a deportation order, a return decision or a removal decision issued under the Aliens and Immigration Law, and then only where the application pleads that the act is incompatible with the principle of non-refoulement. Outside that category the decision keeps operating while the recourse is pending. Where the practical damage will be done long before judgment, that timing problem is dealt with at the outset and not at the hearing.

Usually not. Under Article 146.4 the Court confirms the decision in whole or in part, or declares it null and void in whole or in part and deprived of any effect, or, where the complaint is an omission, declares the omission void and that what was omitted ought to have been done. The power to modify a decision rather than annul it is confined to a tax matter, a matter concerning a procedure of international protection under European Union law, and anything else a law provides for. In the ordinary case annulment sends the matter back to the authority to decide again, lawfully. It does not put the Court’s answer in place of the authority’s.

Yes, and more closely. Section 11(2) of Law 131(I)/2015 provides that on a recourse against a decision concerning a tax dispute the Administrative Court reviews the legality and the correctness of that decision, confirming it, annulling it or modifying it in whole or in part. Section 11(4)(a) adds that the Court modifies the decision where the authority, exercising a bound competence, assessed the relevant facts wrongly. Two limits go with that power: the modification cannot go beyond what the recourse asks for, and it cannot be made to the applicant’s detriment.

Article 146.5 makes the judgment binding on every court, organ and authority in the Republic and puts the organ concerned under a duty of active compliance, which is more than a duty not to obstruct it. Article 146.5A then gives the court jurisdiction, as a law provides, to examine whether there has in fact been active compliance with its own judgment and to impose sanctions on an organ that has not complied. Silence after an annulment is something the court can be asked to deal with, rather than something to absorb.

Article 146.6 gives a person who has suffered damage from a decision, act or omission declared void the right, where the organ concerned has not satisfied the claim, to pursue compensation or other relief by judicial process, and the court may award just and reasonable compensation or grant such other just and reasonable relief as lies within its power. It is a separate step from the annulment. The recourse establishes that the act was void. The loss it caused is then claimed, and has to be proved.

Yes, and the window is short. Section 13 of Law 131(I)/2015 provides that every decision of the Administrative Court is subject to appeal to the Administrative Court of Appeal, on a point of law only, within forty-two days of the date the judgment is delivered. Two things follow. Disagreement with the court’s findings of fact will not on its own support an appeal, and six weeks is not long, so the decision whether to appeal is taken on the judgment as delivered.