Right of Action in Estonian Administrative Procedure

• Author: Ivo Pilving
• Position: Post-Graduate Student, Department of Constitutional and Administrative Law
• Pages: 55-66

Page 55

Ivo Pilving

Post-Graduate Student, Department of Constitutional and Administrative Law

Right of Action in Estonian Administrative Procedure

Introduction

After constitutional order was restored in the territory of the Republic of Estonia, the administrative court system, liquidated under the Soviet occupation, restarted its activities in 1993¹.The Administrative Court Procedure Code²was enacted at the same time. In order to remove deficiencies, which had mainly emerged in practice, the Riigikogu³passed in February 1999 a new amended version of the Administrative Court Procedure Code (ACPC),⁴ which after its entry into force on 1 January 2000 will provide a multitude of facilities for more efficient protection of persons. The new Code will not only smooth out minor unwanted angularities but remarkably restructure the fundamental system of Estonian administrative procedure⁵. On the other hand, the reformation of administrative adjective law in Estonia cannot be considered complete for a long time yet, as a range of questions need more in-depth analysis than could be afforded in removing urgent deficiencies⁶. The circle of persons entitled to bringing an action to administrative court, i.e. the question of the right of action, can, inter alia, provide a subject of deeper analysis. In this point, the process of acceding to the European Union is also one of the initiating factors.

1. Right of action in essence

The opportunity to contest administrative acts in court is an inseparable part of the constitutional order of Estonia as well as many other states. The judicial control is well characterised by the fact that courts do not begin to exercise control on their own initiative but rather in the event of an action⁷. One of the key questions in the system⁸ of judicial control over administration is the decision on who has the right to initiate administrative control procedures in court, i.e. the right of action, also known as the right of initiative. The right of action regulation determines the persons who are competent to challenge administrative acts in court. In Estonian legal literature, the right of action has also been regarded as "active legitimation" or title of interest. "Title of interest means a justification or right to initiate proceedings on the specific presumption of connection between the initiating party and the subject matter of dispute."⁹ These concepts overlap to a large extent but it must be taken into consideration that in principle, the right of action may also be vested in a person without a personal connection with the administrative act in dispute¹⁰. The right of action must, however, be certainly distinguished from passive and active legal capacity in administrative procedure. Passive legal capacity in administrative procedure means the general capacity to be a party to the procedure while active legal capacity in administrative procedure means the right to independently act in the court on one's own behalf¹¹.

In every legal order, certain limits are established with regard to bringing actions against the executive but, as shown by comparative analysis, quite different solutions are possible in that aspect. The regulation of competence for action may also be differentiated on national level, e.g. on the basis of causes of action and the field of substantive law from which the action originates. In regarding possible models of the right of initiative in administrative procedure, four action categories can be distinguished abstractly: actions for protection of rights, actions based on interests, popular actions and association actions¹². In the aspect of comparative analysis of major legal orders, mainly two solutions exist:

(1) the system of subjective rights protection, inPage 56which only actions for protection of rights are permitted;

(2) the system of objective control over administration, in which also actions based on interests are permitted¹³.

The first system sees the general objective of the administrative court procedure primarily in protecting individuals' rights and freedoms and, consequently, grants the right of action only for the purpose of protecting subjective rights. In wider terms, this is based on the understanding that although the executive has a general obligation to act in accordance with law, judicial enforcement of that obligation may be demanded only by competent persons¹⁴.That solution is characteristic of particularly German and Austrian law of administrative procedure¹⁵. In the administrative procedure in France¹⁶ and the United States¹⁷, however, provisions concerning competence for action are much more "generous", as the right of action is generally ensured also in the event of violation of justified interests, in addition to violation of rights. That "generosity" is accordant with other fundamentals underlying administrative procedure law in those legal orders and does not necessarily mean more extensive control over administration¹⁸. Furthermore, the objective of administrative procedure is much more seen in ensuring the legitimacy of the executive's activities in those countries. Judicial protection in the judicial bodies of the European Union has also been largely influenced by French law; in addition, opportunities by far wider than in the system of subjective rights protection must be ensured for contesting national administrative acts which are in conflict with EU legislation¹⁹.

2. Right of action under the reviewed administrative court procedure act

In Estonia, administrative courts may be addressed by submitting either an action or a protest (ACPC § 6(1)). By means of an action, administrative court procedures may be initiated by individuals (ACPC § 7(1)) or associations of individuals, and by means of protest, the procedures may be initiated by supervising agencies or officials (ACPC § 7(2)). The ACPC does not directly refer to categories of action but, dogmatically, actions for avoidance, actions for performance and actions for declaratory judgement, in which the conditions for addressing the administrative court, including the right of action, are different, can be distinguished on the basis of applications contained in actions. Under §§ 6(2) and (3) of the ACPC, actions may be brought to the administrative court for avoidance of an administrative act20 or a part thereof (actions for avoidance), enforcement of an administrative act, conducting an act - to compel the performance of an administrative act or a factual measure - and compensation for damages caused by an administrative act or measure (actions for performance), and for ascertainment of unlawfulness of an administrative act and the existence or absence of a relationship under public law (actions for declaratory judgement). Supervising agencies or officials may have the right of protest only under a special Act in the exercise of supervision over the legitimacy of the activities of an administrative body in a specific field.21 By protest, the same applications as in the event of action may be presented to the administrative court, except the ascertainment of unlawfulness of an administrative act and the compensation for damages (ACPC § 6(2)). During the first years after the restoration of the administrative court procedure, state and local government agencies made several attempts to initiate administrative disputes by virtue of action. However, since state and local government agencies are not independent legal subjects in Estonia22 (unlike the former Soviet legal order), such actions were denied. An administrative body may challenge the activities of another administrative body in the administrative court only in the form of protest but therefor it must be specifically authorised to do so by law.23

In preparing the new ACPC, the former solution for the right of action served as a basis - the drafters only attempted to make more specifications therein and adjust it to the new categories of action (actions for avoidance and actions for performance) in Estonian administrative procedure. Under the ACPC applicable at the time of writing this article as well as the new ACPC, actions for protection of rights are a rule - the rights of actions for avoidance and actions for performance as the main categories of action are, in general, vested only in such persons whose rights are violated by the contested administrative act²⁴. An action may be brought on condition that subjective public rights have been violated by the administration²⁵. Thus, in its principal part, Estonian administrative procedure is founded on the idea of subjective rights protection. As regards actions for declaratory judgement, the idea has been abandoned in the new ACPC, as in this aspect, justified interests are sufficient for creating the right of action (ACPC § 7(1), second sentence)²⁶. In contrast, the second sentence of the Administrative Court Procedure of 1919 vested the right of action in a significantly wider circle of persons: "actions may be presented by all persons, associations and local government agencies should their lawful or material...