DETAILED CONTENTS. Preface... v List of Abbreviations... xxiii. I. The Definition of Administrative Sanctions General Report Carlo Enrico Paliero...

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1 DETAILED CONTENTS Preface v List of Abbreviations xxiii I. The Definition of Administrative Sanctions General Report Carlo Enrico Paliero Introduction. Different methods for the different purposes of the notion of administrative sanction: phenomenological and typological tasks Method and structure of this general report The legislative frame of reference: indications from EU law and ECHR case law from the point of view of content and function Degree of differentiation of the administrative sanction in the strict sense compared with other judicial system reactions Compared to criminal sanctions Countries with a low degree of differentiation Countries with greater differences Countries with a low degree of functional differentiation and a high degree of formal differentiation Comparison with other forms of reaction of the public administration to the violation of a precept Introduction Countries with a very high degree of differentiation Countries with a high degree of differentiation Countries with an intermediate level of differentiation Countries with a low level of differentiation Countries with a very low degree of differentiation Comparison with disciplinary sanctions Internal characteristics of the concept of administrative sanction valid in any given legal system The existence of a single code for the category and its relationship with the legality principle Countries that have a category code Countries without a category code Typology of sanctions ix

2 5.3. Indictment criteria for administrative sanctions (forms and prerequisites of responsibility for the offence) Conclusions II. Country Analysis Austria Frank Höpfel and Robert Kert Relation to general fields of law and important general acts Definition of sanctions and relationship to other measures in the light of the historical development Administrative sanctions in the Austrian law Administrative penal sanctions Historical development Constitutional issues and influence of the European law Division of powers between courts and administrative authorities Relation to constitutional law, administrative law, criminal law and private law Influence of the European law (EC/EU law and ECHR) General principles Nullum crimen sine lege Principles of equality and of proportionality Legality principle The rule of law Principle of fault Liability of legal persons Ne bis in idem Lex mitior Inquisitorial principle Presumption of innocence Nemo tenetur principle Rights of defence Possibilities of protest against the intention of an administrative authority to impose a sanction Access of the infringer to his dossier Organisation of sanctioning powers Can sanctioning powers be exercised by all administrative authorities and within an administrative authority by any civil servant? Does it make any difference if this is an independent authority? Are sanctions to be imposed by judges (administrative, criminal, other), by the public prosecution, by specialised administrative authorities or by any administrative authority? x

3 5. Investigation/inspection Investigative powers of administrative authorities to detect infringements and to examine by whom they have been committed General administrative penal law Competition law Act on Fiscal Offences Can the investigative powers of an administrative law system be used together with the investigative powers of the criminal law system? Can the information gathered by the use of criminal powers be used to impose administrative sanctions? Can the information gathered by the use of administrative powers be used to impose criminal sanctions? Legal protection The system of legal protection in general Legal remedies Is it possible to seize a judge with a complaint against a sanction imposed? Is this judge part of an administrative court, a criminal court or a civil court? Is it possible for this judge to take provisional measures? Can sanctions be executed immediately or only after all ways to ask for legal protection have been exhausted? What possibilities of judicial review does the judge have? How thorough can this review get (full jurisdiction or less)? Does this kind of judicial review differ from other administrative decisions? Does it make a difference that certain sanctioning powers allow administrative authorities to weigh interests and have political space or not? How do obligatory sanctions (sanctions that have to be imposed if an infringement has been discovered) fit into this picture? National and European/international mutual assistance Cooperation between national authorities in relation to the imposition of sanctions Assistance of a foreign EU authority to a national authority Framework Decision 2005/214/JHA Agreement between Austria and Germany on legal protection and mutual assistance in fiscal matters Actual importance in practice Bibliography xi

4 III. Country Analysis Belgium Johan Put and Ken Andries Introduction The Belgian constitutional, judicial and administrative system Belgium, a federal state General overview The division of responsibilities Responsibilities with regard to administrative and criminal sanctions The system of legal protection against sanctions Constitution Organisation of judicial powers (sensu lato) The notion and basic elements of administrative sanctions Definition Administrative sanctions compared to other measures Safety measures Reparation measures Measures of order Criminal sanctions Conditional, obligatory measures The different forms of administrative sanctions in Belgium Administrative investigation/inspection methods Protection against administrative sanctions Introduction The general principles of proper administration (GPPA) Scope of application Classification of the GPPA The formal GPPA The material GPPA The right to information The general principles of criminal law (GPCL) Introduction Legality Presumption of innocence and personal nature of the punishment Reasonable delay Nemo tenetur edere contra se (privilege against selfincrimination) and the right to remain silent Individualisation of the punishment Non bis in idem Retroactivity of legislation Right to a double judicial review xii

5 5. Conclusions Bibliography IV. Country Analysis Finland Mikael Koillinen Concept of administrative sanctions in Finnish administrative law Principles governing the exercise of public powers in the light of the constitution General principles of administrative law and sanctions A fuller account general principles concretised in the exercise of sanctioning powers The criterion of competence separation of powers The criterion of precision The criterion of proportionality The prohibition on the abuse of power The protection of legitimate expectations The reconstructed concept of administrative sanctions in Finnish Administrative Law The requirements of protection under the law The right to appeal Right of access to the dossier The right to be heard Judicial review of sanctions Investigative powers European co-operation Conclusions V. Country Analysis France Emmanuel Breen Introduction The conceptual jungle of non-criminal sanctions The general principle: a licence to punish The Conseil constitutionnel case law The Conseil d Etat case law The three layers of administrative sanctions Authoritarian use of administrative sanctions Diffuse administrative sanctions Administrative sanctions as tools for independent agencies Guarantees à la carte Bibliography xiii

6 VI. Country Analysis Germany Gerhard Dannecker Introductory remarks General definition of the term sanction in Germany Historical background Definition in German case law Differences between constitutional and general law sanctions General definition of sanctions in the sense of general law Categories of sanctions according to objectives Overview of the various provisions on sanctions in Germany Introduction Sanctions under civil law Sanctions under canon law Sanctions under public law Introduction Criminal sanctions (general discussion) Non-criminal sanctions under public law (general discussion) Definitions of criminal sanctions versus administrative sanctions The criminal sanction Measures for the reformation of offenders and the prevention of crime Validity of general legal principles within the scope of criminal sanctions Administrative sanctions Introduction Categories of administrative sanctions The law governing administrative offences Judicial enforcement measures (Ordnungsmittel) Withdrawal/denial of benefits/opportunities Means to enforce administrative acts Disciplinary measures Applicability of criminal law principles to administrative sanctions Introduction The principle of punishment determined by statutory law ( nullum crimen, nulla poena sine lege ) The principle of guilt ( nulla poena sine culpa ) The principle of judicial power exercised by judges, Article 92 GG ( nulla poena sine judicio ) xiv

7 5. Summary VII. Country Analysis Greece George Dellis The Greek legal order and the punitive powers of the administration General overview Administrative sanction as a particular field of public action The evolution of sanctioning administrative functions Definition and typology of administrative sanctions Administrative sanctions and onerous administrative acts More or less punitive sanctions stricto and lato sensu administrative sanctions Pecuniary and non-pecuniary sanctions Disciplinary and non-disciplinary sanctions Sub-categories of non-disciplinary sanctions Taxation, customs and social security Protection of the public order lato sensu Public regulation Overall evaluation The institutional aspects of punitive administrative actions Constitutionality of administrative sanctions as a form of public action At the behest of a jus puniendi: a special regime for administrative sanctions? General remarks The general rules of administrative law in the field of administrative sanctions Legality Competence Impartiality Right to a prior hearing Reasoning Notification Stay of execution Use of discretion The (limited) transfer of criminal law principles in the field of administrative sanctions Repressive due process Legality in the context of punitive actions Nullum crimen nulla poena sine lege Retroactivity Statutes of limitation for the offence. Amnesty. Clemency xv

8 Responsibility Strict liability Presumption of innocence Choice of the appropriate sanction Non reformatio in peius non bis in idem Remedies Administrative recourse Judicial remedies Interim relief Selected bibliography VIII. Country Analysis Italy Alessandro Bernardi, Ciro Grandi and Ilaria Zoda The Italian administrative sanctions system: introductory remarks General principles The principle of defence The organization of the sanctioning powers of the public administration The administrative investigation and the powers of inquiry The means of judicial protection for individuals against administrative orders Cooperation with foreign authorities in administrative matters The long-term depenalisation process and the current practical occurrence of administrative sanctions IX. Country Analysis the Netherlands Oswald Jansen Introduction The definition of sanction The development of enforcement action (last onder bestuursdwang) and the astreinte (last onder dwangsom) in the Netherlands Development of the administrative fine in the Netherlands Relation to general fields of law and important general acts Introduction: GALA and administrative law The position of specific legislation in relation to the GALA regulation on administrative fines A punishable offence or a fineable infringement The maximum fine Statutory fine tariff or not Heavy or light procedure The current relation to criminal law xvi

9 5.8. The problem of legal unity Introduction: unity of what? Perpetration of an offence Concurrence and continuous act General principles Introduction The principle of legality The principle of proportionality Concurrence of acts and non-cumulation Una via and ne bis in idem No fine on death Rights of defence Introduction The presumption of innocence The right to be informed of the proceeding and its basis The right to legal representation and legal aid The right against self-incrimination and/or the right to remain silent Introduction The right to remain silent, the principle of nemo tenetur and the GALA regulation on administrative fines The right of access to the file The right to translation during the proceeding The right to be heard The right to expeditious proceedings The right to an effective remedy The right to a reasoned decision Organization of sanctioning powers Investigation/inspection Legal protection Introduction: the general system Recent reforms of administrative procedure Institutional guarantees in the application of criminal law issues by administrative and criminal courts National and European/international mutual assistance of administrative sanctions Bibliography Appendix I. The structure of the General Administrative Law Act Appendix II. Choice between administrative fine and criminal law system Appendix III. The Dutch system of legal protection xvii

10 X. Country Analysis Portugal Pedro Caeiro and Miguel Ângelo Lemos Introduction Administrative sanctions Elements and types Elements Types Coimas and other sanctions provided by the Direito de Mera Ordenação Social Historical background Basic features of the Direito de Mera Ordenação Social Coimas Accessory sanctions Fundamental principles of Direito de Mera Ordenação Social Principle of legality Principle of favourable retroactivity (retroactive application of lex mitior) Principle of guilt (culpability) Societas delinquere potest Non bis in idem Principle of subsidiary applicability of criminal (substantive) law Procedure A sui generis procedure: the RGCO and criminal procedural law Principle of legality Gathering of evidence Rights of the defence Competence to proceed and to apply the sanctions Appeals Other unfavourable administrative measures (police measures lato sensu) Definition Examples of police measures Measures that are not necessarily connected with an imminent danger to the public interest Measures that are intended to avoid or remove an imminent or existing danger to the public interest Fundamental principles of police measures Police measures lato sensu Police measures stricto sensu xviii

11 2.4. Some examples of contra-ordenações and other unfavourable administrative measures in specific legal areas Urban law (law on building) Protection of the economy and public health Banking law Environmental law Conclusion Bibliography XI. Country Analysis Romania Elena Mihaela Fodor and Corina Cristina Buzdugan Introduction: general description of sanctions and the sanction system General principles and codification Sanctioning procedure Legal protection Bibliography XII. Country Analysis Spain Manuel Rebollo Puig, Manuel Izquierdo Carrasco, Lucía Alarcón Sotomayor and Antonio Mª. Bueno Armijo Relation to general fields of law and important general acts Introduction The concept of administrative sanction The concept of administrative infringement Unfavourable administrative measures that are not administrative sanctions Restraining sanctions Measures to restore the infringed legality The reimbursement of public grants Contractual penalties General administrative sanctions and disciplinary administrative sanctions Differences between the statutory regime of administrative sanctions and criminal sanctions Constitutional and legal system Content of the sanctions The material scope of sanctioning administrative law and criminal law General principles The principle of legality xix

12 2.2. The principle of typology relating to offences and administrative sanctions The principle of the proportionality of sanctions The principle of non-retroactivity of adverse sanctioning rules and retroactivity of favourable sanctioning rules (lex mitior) The principle of guilt The principle of non bis in idem The principle of equality The principle of the required procedure Rights of defence Enumeration and content of the rights of defence The right to be informed of the charge(s) The right to use relevant means to prove one s innocence The right to refrain from self-incrimination and from pleading guilty The right to the presumption of innocence Specific rights of defence in the punitive administrative procedure The punitive resolution. Providing the necessary grounds Organization of sanctioning powers Investigation/ inspection Powers of investigation and inspection prior to the initiation of a punitive administrative procedure The sanctioning administrative bodies powers of investigation and inspection Legal protection Judicial control of contentious administrative jurisdiction: a contentious administrative appeal against sanctions Challenging a sanction before the same public administration: administrative appeals against sanctions Control by the Constitutional Court: an appeal for legal protection against sanctions and appeals on the ground of unconstitutionality Enforcement of sanctions National and European/international mutual assistance Mutual assistance between the different organs and public administrations in Spain Assistance between the Spanish authorities and other Member States of the European Union or other States Actual importance in practice xx

13 XIII. Country Analysis Sweden Patricia Blanc-Gonnet Jonason Definition and typology of sanctions Definition of sanctions Typology of sanctions Penal sanctions Civil law sanctions Administrative sanctions Revocation of licences and withdrawal of authorization Administrative fees Public law fines Disciplinary sanctions according to public law The Swedish legal framework regarding the imposition of administrative sanctions The legislative power Principles governing the decision-making power of public authorities The principle of legality Freedom from interference (the principle of the independence of public authorities) The principles of objectivity and equality The principle of proportionality The Administrative Procedure Act and the Administrative Court Procedure Act General remarks concerning the Administrative Procedure Act General remarks about the Administrative Courts Procedure Act Rights of defence Right of access to the dossier/documents The right of the party to express his views before the authority takes a decision Right of hearing Right of representation Interpreter Stating the reasons for the decisions Legal aid Organization of sanctioning powers Which authorities have the power to impose administrative sanctions? xxi

14 The division of sanctioning powers within an administrative authority Investigation/inspection Legal protection Self-correction by the authority which has taken the decision Right of appeal Where can the decision be appealed? What kind of decisions may be appealed against? Leave to appeal Judicial review Legal review Extraordinary remedies in the administrative procedure The ombudsmen Can sanctions be executed immediately? Topics currently being discussed in Sweden Bibliography Preparatory works XIV. Country Analysis United Kingdom John McEldowney Introduction The constitutional context of administrative sanctions in the United Kingdom Techniques, procedures, and processes in administrative sanctions Companies and criminal law Conclusions Select bibliography XV. Administrative Sanctions in EU Law Adrienne de Moor-van Vugt Introduction Enforcement of Union law by way of administrative sanctioning The starting point Filling the gap A question of competence Administrative sanctions Criminal charge Definition of sanctions in EC law Principle of legality Culpability Protection of the individual xxii

15 6.1. The rights of the defence The right to silence Protection against entering business premises or a home Judicial protection Access to justice Procedural rules Public trial Standing Time limits Legal assistance Burden of proof Full jurisdiction Reasonable time Severity of the measure or penalty Proportionality Accumulation of sanctions Conclusion List of Authors xxiii