Definition

Administrative courts are courts that specialize in and apply administrative law, a branch of public law that focuses on public administration. In other words, administrative courts adjudicate cases of litigation involving the state and private citizens (both individuals and corporations) and apply the law that governs the activities of administrative agencies of government. There is no homogeneous model for administrative courts across jurisdictions. Even if one considers a broad distinction of legal families, it is possible to find many distinct models. Every jurisdiction has a way of solving litigation with the state, independently of having a specialized administrative court.

Introduction

Administrative courts are courts that specialize in administrative law, a branch of public law that focuses on public administration. In other words, administrative courts adjudicate mainly cases of litigation involving the state (both institutions and public officials) and private citizens (both individuals and corporations) and apply the law that governs the activities of administrative agencies of government. The role of these types of courts is directly related to the existence and functions of a state or government: in the one hand, it would make no sense for these courts to exist without a state; on the other hand, these courts may have distinct roles depending on the specific functions of the state, which might vary across jurisdictions and time.

Constitutional courts (if existent) also adjudicate cases related to the government. For this reason, one might argue that it is hard to draw a clear-cut line dividing the types of cases that each court hears. Assigning the tripartite division of government branches to administrative courts and constitutional courts might help somehow drawing a division, even though it is never an exclusive one. Generally speaking, administrative courts adjudicate primarily cases related to the executive function of the state, and constitutional courts adjudicate cases related to the legislative, judicial and executive functions.

Institutions in general, and courts in particular, matter for economic growth and development (e.g., Mahoney 2001). Scholars from law and economics, institutional economics and legal studies have acknowledged their role and importance, especially in recent decades. Many answers are still unanswered, in particular if we narrow the analysis down to administrative courts as extensive empirical analysis in administrative courts is virtually nonexistent. The emerging field of comparative administrative law has comprehensively examined and explained substantial differences of administrative law across countries. Nevertheless, the collection of administrative courts’ models (even within the same legal families) embedded in highly complex legal, political, and economic systems create a challenge to comparative analysis. In fact, it is difficult to assess which model is the best or to quantify how much one model is better than the other because an extensive number of factors play a role as well. The transplant of other models does not necessarily result in better outcomes precisely for this reason.

“The core idea of government under law requires an independent institution willing to enforce that law against the administration – both the political and the bureaucratic administration – whenever the law is broken” (Bishop 1990, pp. 492–493) – this is where administrative courts come in. Administrative courts hear a variety of cases similar to those involving individuals, such as contracts, torts or property, as long as the state is one of the parties involved. Nevertheless, the state has particular functions that private citizens do not have. Declaring war, issuing passports, collecting taxes, having the monopoly of legitimate coercion (which also imposes the duty of procedural fairness), or having a monopoly over some activities and provision of certain goods or services are a few examples of state’s specific functions (e.g., Cane 2011). Generally speaking, some of the most common areas of administrative law are taxes, immigration, and licensing which tend to make up for a significant proportion of cases that administrative courts hear. Moreover, these areas are more relevant in civil law countries given their inclination for ex ante control mechanisms rather than ex post control mechanisms as it tends to be the case in common law systems. To sum up, administrative courts also resolve disputes that are specific to the role of the state and protect citizens from state overreaching.

Historical Origins and Institutional Differences

Although it is not the purpose of this work to make an extensive analysis of all administrative courts in Europe or elsewhere, some basic notions of the models adopted in England and France are useful at this stage. France and England deeply influenced many legal systems across the world, even though these countries opted for two different ways of dealing with administrative law. In England, ordinary courts were in charge of hearing administrative cases, whereas this role was assigned to specialized state officials connected to the executive branch in France. This is generally perceived to be the major difference between administrative law systems (Bignami 2012, p. 148). There were important historical differences in those two countries with respect to the rise of bureaucracy and administrative law that explain the option for “ordinary” or specialized courts.

In France, the seventeenth and eighteenth centuries were marked by intense conflicts between intendants (officers responsible to the Crown in charge of the provinces’ administration) and parlements (powerful courts controlled by local elites). In fact, the “paralysis of the royal administrative of the ancient régime, caused by the Parlements (which were, in fact, judicial bodies), is often considered one of the causes of the French revolution and was a prime impetus for the French conception of separation of powers, in which the judicial courts lack jurisdiction over administrative acts of the State” (Massot 2010, p. 415). Napoleon created the Conseil d’État (Council of State), which became the successor of the Conseil du Roi (King’s Council, a specialized review body) and the first specialized administrative court. The Council of State still maintains nowadays the dual function of adjudicating cases against the French administration and drafting government laws and rules. At the time of its creation, judicial review made by ordinary courts (i.e., the judicial power of the government) represented an intrusion on the executive power and these courts were not allowed to adjudicate claims against the government. This was the main rationale for assigning that task to a specialized body: the executive, not the judiciary (Cane 2011, p. 43; Bignami 2012, p. 149; see also Mahoney 2001).

In England, the distinction between public and private law has been historically less sharp not because England lacks public-law courts but because ordinary courts have jurisdiction over all types of disputes (Cane 2011). A constitutional struggle developed in the seventeenth century between the Stuarts and judges with respect to the judges’ right to decide cases related to the royal power or to decide cases in which the king had an interest (Page and Robson 2014). At that time, the Stuart kings attempted to create separate courts to deal with cases related to the government in order to expand royal control. However, the victory of the Parliament established the independence of judges and everyone should obey the law. Courts developed judicial review, i.e., the revision of administrative decisions, as a way of supervising inferior government bodies (Cane 2011). Local elites with little central involvement would administer the business of government and appeals against government officers would be taken to courts of general jurisdiction (Bignami 2012, p. 149). Administrative tribunals developed during the twentieth century (Shapiro 1981, p. 111 & seqs.) which, in a very simplistic way, can be thought of as an adjudicatory body that is not a court (Cane 2010).

The German model of judicial review is an alternative to the French and English models. During the nineteenth century, German liberals endeavored to implement legal structures that would limit state power by the monarchs of German states. At the time, the ideas of the jurist Rudolf von Gneist strongly influenced German administrative law. Gneist was a strong advocator of an independent judicial review system that would ensure the protection of citizens’ rights and contended that there should be a generalist administrative court independent of the executive. Moreover, the composition of the court should allow an independent judicial control of administrative power, so it would be staffed by professional administrators and respected citizens (Feld 1962, p. 496; Nolte 1994, p. 199). In 1872 Gneist’s ideas were implemented with the Prussian Supreme Administrative Court, which was the highest judicial body of a three-tier system of administrative courts. This court exerted a great influence on the development of German administrative law (Feld 1962). According to the German model, currently the most widespread model in Europe, a specialized branch of the judiciary specializes in administrative law (Fromont 2006, p. 128). Civil judges and administrative judges follow the same recruitment process and guarantee of independence. The main difference is that administrative judges specialize in administrative law.

The spirit of the French, English, and German administrative models has been implemented elsewhere. Several countries adopted the French administrative model, having a Council of State separated from the judiciary. In continental Europe, some of these countries are the Netherlands, Belgium, Italy, and Greece. However, whereas cases of government liability are adjudicated by the Council of State in France, these cases are adjudicated by courts in Italy, Belgium, and the Netherlands. The British model of a generalist court has been implemented, among others, in Ireland, the USA, Australia, and New Zealand. Austria, Finland, Poland, Portugal, Spain, Sweden, and Switzerland have implemented a model of the German type.

The Evolution of the State and the Role of Administrative Courts

The current role of administrative courts is necessarily intertwined with the functions of the modern state, which are complex and diverse across jurisdictions. Moreover, these functions are not static and evolve continuously, together with economic and political development (the development of the welfare state has been particularly relevant). For instance, the provision of health, housing, education, electricity and transport, among others, went through diverse degrees of public ownership and control (Cane 2011). During the 1980s and the 1990s several Western countries experienced a shift in the boundary between the public and private sectors. With the aim of reaching a single market, the European Commission liberalized numerous network industries, such as gas, air transport, electricity, postal and railroad services (Custos 2010, p. 279). In some countries, there was a shift from public to private in many economic sectors due to privatizations (for example, in the UK, Portugal, Italy, France, and Spain). Meanwhile, a deregulation process took place in the USA, where government regulation was reduced in a number of sectors. The government opted for contracting-out some services to private companies and public-private partnerships emerged for performing functions that have previously been carried out by governmental bodies. A few examples are road repairs, highways constructions, and garbage collection.

In particular, nowadays the state is a constant presence in many spheres of daily life, its powers are vast, and its functions are considerably complex. An enormous machinery must be in place so that the state can perform its complex functions. The legislature approves laws and statutes that will be executed by government agencies, run by nonelected civil servants. A democratic government running under the law must provide a way of monitoring and supervising the performance of government agencies and bureaucrats. Therefore, administrative courts can be asked to perform judicial review of administrative decisions (e.g., if a public body acted beyond its powers or if a public body failed to act or perform a duty statutorily imposed on it).

The actions of state officials might also impose harm to citizens, very similarly to what happens in contract or tort. Some examples include medical liability of a doctor practicing in a public hospital or accidents caused by state-owned cars and driven by public employees. The difference in these cases is that the state is one of the parties, most likely the party supposedly causing the harm. Administrative courts might be called to adjudicate state liability and award damages in case the state is found liable, but the reliance on administrative courts to perform this task depends on each specific jurisdiction. In reality, there is no unique model for administrative courts or for adjudicating litigation involving the state. In terms of procedure, administrative courts in civil law tradition countries have exclusive jurisdiction over tort litigation against the state as sovereign (Dari-Mattiacci et al. 2010). Moreover, administrative courts follow rules of administrative procedure that tend to treat the state as a nonordinary defendant (differences might be found with respect to statute of limitation, liability standards or the possibility of having out-of-court settlements, to name only a few). Cases in which the state acts as a private entity might lead to jurisdictional ambiguity, and depending on the country these cases might end up in ordinary courts. In some countries, cases of jurisdictional conflict might be addressed to a court of conflict (e.g., France, Italy, and Portugal).

Some Examples of Institutional Differences

It is nevertheless worth mentioning that a jurist trained in the USA might face some difficulties when trying to understand the functioning of administrative courts and the profession of administrative judges in Continental European civil law tradition countries. In the USA, much of administrative review is vested in public authorities and independent agencies, often described as administrative tribunals. The agency officials, whose task is to adjudicate cases according to the Administrative Procedure Act (APA) of 1946, are administrative law judges and administrative judges (Cane 2010, p. 427). These administrative officials are typically recruited by the Office of Personnel Management to become adjudicators in agencies that are part of the executive branch of government. The APA did not introduce specialized courts to deal with judicial review of administrative acts but it effectively created “a special form of jurisdiction that governs the review of agency decisions in ordinary courts. Especially to continental jurists, then, it is often worth emphasizing that the US legal system, in some sense, also distinguishes between administrative law questions and other legal disputes” (Halberstam 2010, p. 187). Moreover, in the US, the Court of Appeals for the District of Columbia (DC) Circuit has specialized in administrative law and is frequently the final court for administrative matters.

Recently in the UK there were important judicial reforms, namely the Constitutional Reform Act 2005 and the Tribunals, Courts and Enforcement Act 2007. According to this later reform, administrative courts are effectively being created. Additionally, the jurisdiction of some subject-specific tribunals (such as social security, education, taxation, pensions, and emigration) has been transferred to the new First-tier Tribunal and Upper Tribunal. The First-tier Tribunal comprises seven chambers has as main function deciding general appeals against a decision made by a Government agency or department. The Upper Tribunal comprises four chambers (one of which being the Administrative Appeals Chamber) and hears appeals from the First-tier Tribunal in points of law. In a way, recent times have introduced a shaper distinction between administrative and private English law.

Significant transformations also took place in French administrative law, namely with the creation of the administrative courts of appeal in 1987 and various reforms that extended the powers of administrative judges (in particular with respect to injunctions and the possibility of issuing urgent judgments to prevent illegal administrative behavior) (see Auby and Cluzel-Métayer 2012, p. 36). Currently, there are 42 administrative tribunals, 8 administrative courts of appeal and the highest level is still the Conseil d’État. French administrative courts do not adjudicate all administrative cases. The view is that the administration is only partly subjected to special rules and to public law, which translates in some cases ending up in ordinary courts even if they involve the administration. Delimiting the precise jurisdiction of French administrative courts is extremely complex (for more on this see Auby and Cluzel-Métayer 2012, p. 25).

With respect to Germany, administrative courts are one of the five branches of the judiciary, which besides administrative courts includes ordinary courts (civil and criminal), labor courts, fiscal courts, and social courts. The last three courts comprise the so-called special courts (e.g., Schröder 2012, p. 77). There are three levels of administrative courts: lower administrative courts, higher administrative courts, and the Federal Administrative Court. The total number of lower administrative courts depends on the population and size of each Land (state), there is at least one administrative court in each State but no more than one higher administrative court (Singh 2001, p. 187 & seqs.; Schröder 2012, p. 78 & seqs.).

Generally speaking, civil law systems tend to hear cases of judicial review within one administrative court (with a few exceptions, such as social security cases in some jurisdictions or taxes in Germany) whereas common law systems tend to have a different appeal tribunal for each agency (Bishop 1990, p. 525). However, the few examples presented above illustrate the complexity of the organizational setting of administrative courts. Homogeneity cannot be found, not even at the highest court level of Continental European jurisdictions where some systems have one Administrative Supreme Court (e.g., Portugal), others have one Administrative Section within the Supreme Court (e.g., Spain) and others have none of these. Independently of institutional and legal differences, every jurisdiction has a way of solving litigation between the state and citizens and of appealing these decisions. The main differences are generally with respect to whether there is a specialized administrative court, whether there are particular procedural rules, and whether there are specialized courts to deal with conflicts of jurisdiction.

Do We Need Specialized Administrative Courts?

The debate on specialized administrative courts has raised several contentious questions that have been asked for decades (see, e.g., Nutting 1955; Revesz 1990). For instance, should the adjudicative function of administrative cases be vested in separate bodies and, if so, are courts the most appropriate institutions? Should administrative courts have original and appellate jurisdiction? Is it more beneficial to have specialized administrative courts to adjudicate cases involving the state or leave it to generalist courts? The answers to these questions remain controversial, with several arguments being found in favor and against specialized courts (see, among others, Dreyfuss 1990; Revesz 1990; Baum 2011).

Some of the potential benefits of specialized courts are extensive to administrative courts as well. The “neutral virtues” of judicial specialization are the quality of decisions, efficiency, and uniformity in the law (Baum 2011, pp. 4 & 32). Specialization should result in more correct decisions in complex areas of the law, precisely because the adjudicator will become an expert in a certain type of decisions. This can be particularly relevant in fields of law that involve complex technical skills. Moreover, specialization might allow decisions to become more uniform and coherent. One potential advantage of specialized courts on administrative matters might be that the judges feel more confident given their expertise, which may make them more willing to go against administrative decisions. If judges have the incentives and training to become experts in administrative law, it is also possible to have tailored procedures in court to deal with the particular features of the state as defendant (Dari-Mattiacci et al. 2010, p. 28). A major advantage of separate administrative courts is the possibility to develop a set of principles that accepts the specific nature of the state as defendant (such as access to information, evidence produced by the administration and control over administrative discretion) balancing the interests of citizens and the ability of the administration to pursue the public interest (Bell 2007, pp. 291–293 and p. 299). There are possible “nonneutral effects” of specialized courts on the substance, namely a change in the ideological content of judicial policy or the support for competing interests in a given field (Baum 2011, p. 4 & seqs.).

As for the arguments against specialized courts, there are also many. Courts and judges that become specialized in some particular area of the law might apply the law in a narrower way, and have fewer skills in applying concepts from other areas of law when necessary. Moreover, some arguments against specialized administrative courts are particularly relevant. Specialized administrative courts might be more easily captured by the state, which becomes more likely with the separation of jurisdictions. The marginal cost for the judge in deciding against the state is higher in administrative than in ordinary judicial courts (e.g., Mahoney 2001). Specialization makes accountability more difficult, because the knowledge of administrative law becomes a specific asset on human capital for administrative judges, which might become more dependent on the government precisely for this reason (see Dari-Mattiacci et al.2010, p. 28). Hence, it might be more difficult for administrative judges to realize that the state has overreached either because judges exhibit systemic biases or because judges want to maintain their place as state officials. This would be an undesirable outcome in case it would result in administrative judges issuing biased decisions in favor of the state. However, and in spite of the debate on this issue, the lack of empirical evidence makes it impossible to draw rigorous and extensive conclusions on this claim.

The recruitment of administrative judges becomes naturally a critical piece of the well-functioning of administrative courts. Traditionally, commonwealth systems have recognition judiciaries which, together with ordinary courts for administrative review, tends to result in a higher degree of autonomy in comparison with continental systems (Garoupa and Mathews 2014, p. 12). In the majority of civil law countries in Continental Europe, administrative judges follow a career as generalist judge and specialize in administrative law when serving in administrative courts. An exception is France, where most of the members of the Conseil d’Etat are civil servants, recruited from the École Nationale d’Administration, the elite school for training French government executives. In both civil and common law systems judges are appointed for life: in civil law, judges are appointed for life as judges (i.e., career tenure) and in common law judges are appointed for life in a specific court (i.e., court tenure).

It is not possible to properly assess the pros and cons of specialized administrative courts without considering the legal, administrative lawmaking and political systems in which a particular court is located in. In the end, judicial specialization may affect courts output in a very complex way. Whether the effects are good or bad depend on the particular system where the court is located. There are still limited empirical findings which makes it difficult to assess the effects of specialized administrative courts. Moreover, even if there were strong evidence that the benefits of specialized administrative courts outweigh the disadvantages, it would still be unclear what the best institutional model for administrative courts would be. Indeed, there are many different ways to structure specialized courts, namely specialized courts with generalized judges, generalized courts with exclusive special jurisdiction, specialization at the trial and/or appellate level, specialized trial courts with general appellate courts or general trial courts reviewed by special appellate courts (Dreyfuss 1990, p. 428). Furthermore, as the brief comparison among different jurisdictions has shown, it is possible to have distinct formats even at the highest court levels. Additionally, the interactions between judges and the state may have important implications which might be translated in more or less politicized courts (see Garoupa et al. 2012).

Concluding Remarks

Administrative courts are part of the system of checks and balances of the government system. Therefore, administrative courts have an important institutional role in modern societies, given that they still keep the task of protecting citizens from the powerful state. In the same way that modern societies have institutions and mechanisms to enforce the law and solve conflicts among private parties, it is fundamental to allow citizens to review government decisions and to be compensated if they have been harmed by government action or inaction. The function of administrative courts and the quality of their decisions can also have relevant economic impacts. All in all, it is not only important to have a way of making a claim against the state: it is also important that the decisions being held by the institutions in charge of the adjudication are not prostate biased.

Recent decades have introduced changes in the functions of the state, with the development of the welfare state being eventually the most relevant. Naturally, the role of administrative courts has also been affected by these changes. Concomitantly, important developments took place with repercussions in the administrative sphere, such as the creation of the European Union and the establishment of the European Convention on Human Rights. It is still unclear what the implications of global administrative on national administrative courts will be. Contributions from political science and law and economics would be fruitful and would bring important insights to the debate.