Niilo Jääskinen Member State Supreme Administrative Courts as Partners in the Judicial Dialogue with the Court of Justice of the European Union I. Member State Supreme Administrative Courts and the Court of Justice of the European Union Siblings in the Same family 1. The European Court of Human Rights observed in Kress vs. France in 2001 that Admittedly, the very establishment and existence of administrative courts can be hailed as one of the most conspicuous achievements of a State based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle. Such struggle for legality and rule of law is visible in the history of the national supreme administrative courts as well as of the Court of Justice of the European Union. 2. The Court of Justice of the European Union and the national supreme administrative courts have each a unique role and history. Intellectually they, nevertheless, belong to the same family as siblings. This family stems from the French Conseil d État and the 19 th century evolution of administrative law as a special branch of law. This development took place within the emerging ideal of a State based on the rule of law. In many countries special judicial procedures aiming at the control of the legality of the use of powers by authorities and the protection of the public law rights 1
of the individuals were set out. The competence over their application was often vested in other bodies than the ordinary courts. II. Highest Administrative Jurisdiction in the Court Systems of the European Union Member States 3. Structurally the Court systems of the European Union Member States represent a great variety. At the one extreme we find Denmark with a completely unified court system. The other extreme is Germany with special court lines for civil and criminal cases, administrative law, fiscal cases, labour law and social law and, moreover, a system of federal and state level constitutional courts. 4. Administrative jurisdiction as a special branch of the judiciary exists in most European Union Member States. In some cases, like Estonia and Spain, separate administrative courts exist at the lower level of the judicial system whereas at the top there is a single supreme court. In contrast, in the Netherlands the judicial system is unified at the lower tiers, but at the top there are two supreme courts, namely the Hoge Raad for civil, criminal and tax cases, and the Raad van State for administrative law cases. A complete dual court structure exists, for example, in Bulgaria, Germany, France, Italy, Greece, Lithuania, Luxembourg, Austria, Poland, Portugal, Finland, and Sweden. 2
5. The competence of a national supreme administrative court usually includes examination of appeals against decisions of lower level administrative courts and tribunals. In some cases, appeals against higher governmental or administrative bodies are directly examined by the national supreme administrative court as the only judicial instance. The competence in ratione materiae of the national supreme administrative courts vary considerably between the Member States. Generally, it includes general administrative law and various branches of public law. 6. Despite the differences of their powers, it can be observed that the administrative courts in general and the supreme national administrative courts in particular were first faced with the new supranational legal system established by the European Communities. European Community law imposed new obligations to national administrations. As a consequence, it also created new possibilities for the individuals to challenge their decisions before national administrative courts. This was unsurprising. The main bulk of Community law during the first decades of European integration was related to the establishment of the common market and to such common policies as the Common Agricultural Policy. 7. Over sixty year later the material scope of European Union law has widened considerably. At present, it covers in practice all branches of law. The Single Market and the establishment of the Area of Freedom, 3
Security and Justice have broadened the scope of Union law to a plethora of civil and criminal law issues. Yet, one can safely assume that the centre of gravity of national application of Union law remains in administrative courts, at the superior level at the national supreme administrative courts. This applies especially to those Member States where the administrative courts are competent also in tax, customs and asylum matters. III. Preliminary References by the Member State Supreme Administrative Courts 8. In many Member States the number of references for a preliminary ruling originating in supreme administrative courts is considerably higher than that of those from the judicial supreme courts. This applies, for example, to Bulgaria, the Czech Republic, Germany, Greece, Poland, Portugal and Finland. The number is grosso modo equal in Belgium, France, Italy, Lithuania, Luxembourg and Austria. In the cases of the Netherlands and Sweden the number of references from the judicial supreme court considerably outweighs the number of those from the supreme administrative court. As to the Netherlands, this finding is surely explained by that tax law falls within the jurisdiction of the Hoge Raad and not of the Raad van State. 9. Let us then look at the importance of the national supreme administrative court within its own Member State as a source of 4
preliminary references. Here the Czech and the Finnish supreme administrative courts have both presented almost a half of the refences from these Member States, the Greek, Lithuanian, Luxembourg, Polish and Portuguese about one third, the Bulgarian, German and Austrian courts about one fifth and the Belgian, French, Italian, Netherlands and Swedish courts about one tenth. IV. Examples of the Judicial Dialogue 10. The Finnish Supreme Administrative Court made its first reference for a preliminary ruling in 1996 in case C-412/96, Kainuun Liikenne Oy and Oy Pohjolan Liikenne AB. The case concerned partial termination of a public service obligation of a bus company when the obligation entails economic disadvantage to the company. This was the second preliminary reference made by a Finnish court or tribunal. 11. By till the end of 2017, the Finnish Supreme Administrative Court has made 56 references for a preliminary ruling, or two and half references per a year of Union membership. This figure represents about 49 percent of the Finnish references. 12. It can be debated whether the Supreme Administrative Court has made too few, too many or enough references. When compared to the number of the cases where Union law is relevant, this number is surely 5
quite small. Twenty years ago, it was estimated that Union law was directly or indirectly relevant about in one third of the cases of the Supreme Administrative Court. After 2015 this number has grown much higher because the asylum crisis has almost doubled the case-load. On the other hand, in practice it is quite exceptional that there would appear a completely novel Union law question, to which the answer could not be deduced without a reasonable doubt from the wording of the relevant Union provision and/or the existing case law of the Court of Justice. 13. The Supreme Administrative Court has not made references that would have led to a judgment of the Court of Justice of great constitutional or institutional importance. Of the 56 references only six have been dealt with by the Grand Chamber of the Court of Justice, previously by the full court. 14. This said, the references from the Supreme Administrative Court typically concern slightly boring legal issues of interpretation of individual Union legal acts. Nevertheless, such questions may be highly pertinent for the application of Union law in the sector at hand such as VAT, public procurement or waste legislation. Therefore, the relevant judgments are often cited in the latter case law of the Court of Justice. 6
15. Next, I shall mention the following two cases as examples of Supreme Administrative Court references which have led to judgments by the Grand Chamber of the Court that have been influential in the development of Union law. 16. In case C-513/99, Concordia Bus Finland, the Court of Justice declared that in public procurement concerning local bus traffic the contracting authority could also consider criteria related to the protection of environment. This judgment was an opened the way to taking also ecological values into consideration in Union public procurement law. 17. In case C-319/02, Manninen with Mr. Leanaerts as the rapporteur the Court declared as incompatible with the Treaty provisions on free movement of capitals the so-called avoir fiscal system in the form it was applied in Finland. In an avoir fiscal system a taxable person subject to dividends tax is entitled to a tax credit based on the corresponding corporate tax payable by the distributing company. In Finland the credit existed in relation to dividends paid by national companies, but it was excluded regarding foreign sourced dividends. According to the Court of Justice, this was an unjustified restriction of the free movement of capitals. Nationally, Manninen judgment was a deathblow to the avoir fiscal system. At the Union level, it clarified that national tax policy objectives, such as fiscal neutrality, do not justify discrimination of income sourced in other Member States. 7
18. When one looks at various academic lists of landmark judgments of the Court of Justice, preliminary references from national supreme administrative courts are not mentioned. This does not mean that the preliminary references from national supreme administrative courts would be legally insignificant. Rather it indicates that they do not relate to structural or constitutional points of friction between national law and Union law. To illustrate this, I shall mention two relatively recent grand chamber judgments of the Court of Justice answering to preliminary questions from a national supreme administrative court. 19. In the so-called Weser case, C-461/13, Bund für Umwelt und Naturschutz Deutschland vs. Federal Republic of Germany, the Bundesverwaltungsgerich asked for clarification of the legal effects of objectives included in the water management plans adopted in accordance with the Water Framework Directive. The Grand Chamber of the Court declared that these objectives are legally binding and not only indicative. This ruling is of utmost importance for achieving a good ecological and chemical status of European waters and, hence, to the effectiveness of Union environmental law. 20. In joined cases C-148-150/13, A, B and C, the Court of Justice issued a preliminary ruling which clarified important questions of Union refugee law where persecution on grounds of sexual orientation is invoked 8
as justification for international protection. In this case the main proceedings took place at Raad van State of the Netherlands. 21. The Court of Justice meticulously defined how applications for asylum justified with reference to persecution on grounds of sexual orientation must be handled by Member State authorities. The Court limited admissible means of evidence in order not to infringe the applicant s fundamental right to human dignity and non-discrimination. This guidance is of great practical value for national supreme administrative courts confronted with an extremely huge number of asylum cases as of 2015. The Finnish Supreme Administrative Court has relied on this judgment on many occasions, for example in its judgment 2018:90 of 15 June 2018. 22. The cases described above illustrate the very practical character of much of the judicial dialogue between the Court of Justice and the national supreme administrative courts. Such cases rarely attire the attention of the Union law generalist or constitutional lawyers. Yet, they represent considerable social, economic, legal and human interests. Moreover, they emphasize the need to ensure the protection of the fundamental rights and interests of the individuals and economic operators in the application of Union law by Member States authorities. 9
23. Today the name of Mr Ståhlberg who was the first president of the Supreme Administrative Court, and also the first president of the Republic of Finland is often mentioned. He used to emphasise how the Supreme Administrative Court contributes to the consolidation of a strong rule of law-based state by meticulously examining the actions by the individuals even in lesser cases. In my opinion, this idea of building the rule of law brick-by-brick in the course of judicial decision-making equally applies to the judicial dialogue between the Court of Justice and the national supreme administrative courts. 24. The Court of Justice has reaffirmed the fundamental constitutional importance of the judicial dialogue between the national courts and the Court of Justice in its seminal judgment of 6 March 2018 in case C-284/16, Achmea vs. Slovakia. Moreover, it has recently highlighted the importance of the judicial dialogue with the national courts by not proposing any transfer of its competences regarding preliminary references to the General Court. I am confident that the Supreme Administrative Court of Finland together with other national supreme administrative courts continue to be active and constructive partners in this judicial dialogue. 10
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