Administrative Boards and the Exercise of Judicial Review

by , on Feb 02, 2022 11:08:34 AM

Administrative Boards and the Exercise of Judicial Review

On 11th November, the First Hall of the Civil Court had a partial judgment on two preliminary pleas that were raised by the state in the case ‘315/17 JRM’. The action in this particular case falls under the ambit of Article 469A of the Code of Organisation and Civil Procedures. The case assessed what constitutes an administrative action and the discretion the court has when answering this question.

Board was not established in accordance with the law

The 469A action was filed by the plaintiff after the position she held in a public service was terminated after the appointment of an internal administrative board by the defendant permanent secretary within the then Ministry of Education and Employment. The plaintiff claimed that the Board was not established in accordance with the law and that it also had to investigate the operations of the agency.

The claimant also contended that she has not received the “terms of remit” of the same board or the complaints it had received. The Chairperson of the board informed her that her position as CEO was terminated and she was also notified in writing on the very same day. After requesting a copy of the deliberations which affect her dismissal, she only received a summary after complaining with the Information and Data Protection Commissioner and following the actions of the commissioner therein.

 What constitutes an administrative action under 469A?

The question that arose; namely, what constitutes an administrative action under Article 469A?This led to another uncertainty if this action can be exercised at all or not, and could well spell the end of an action before going into the merits of the case. After the changes made  in 1995 under the statute book, this type of action, according to Article 469A, has been central in contesting administrative actions. There are many court judgments which examined the nature, purposes and restraints on this action because the action is relatively common when a person has to challenge the state acting administratively.

A particular importance for the court is to determine if one action is of administrative nature and this is most often than not cased by pleas filed by the State being in the position of defendant. The state often tries to subvert such actions at the start through preliminary pleas as it did in the case at hand but without success.

Two preliminary pleas can stop the court from reviewing the complaint made by the plaintiff

As summarised by the court, two preliminary pleas can stop the court from reviewing the complaint made by the plaintiff. The court claimed that the two preliminary pleas were similar, and as stated by the defendant they concerned the appointment of the boards as an initiative dealing with matters involving internal administration of the state, that would exclude a review under Art. 469A.

Moreover, the defendant claimed that the end results of such a board did not involve a decision or a refusal of a request but rather a preparation of a report and the making of a recommendation to the minister. The plaintiff claimed that the action in question breached also some of her rights. As long as that was the case, the action would not be considered “administrative” under Article 469A.

 According to the court, the definition failed to define what constitutes “internal organisation or administration” which meant that it had the power to determine if the facts fall under the same exception under Article 469A, as being in accordance with the law.

The court gave its autonomous interpretation for what falls under “international organisation or administration”. The Court, by also making a reference to Bell& Galabert’s French Administrative Law, which states  that if any act which, at first sight, seemed intended for the internal organisation or administration of a public authority ended up affecting the rights of people then that amounts to administrative action under article 469A, meaning that the courts have the power of review. Therefore, the court shall exercise these rights when this is not excluded under the law. It should interpret the scope of the restriction imposed on exercising its review powers in a way that would allow it to scrutinise a complaint.

The outcome of the case is that the court made a judgment in favour of the plaintiff and refused to decline the execution of a judicial review on the basis of the pleas, made by the state.

Author: Stephanie Marinova