Jonathan Wennekers
Rua das Escolas Gerais 130, 4° Esq.
1100-221 Lisboa
Número estudante: 001320 (Erasmus)
Discretionary power and indefinitelegal terms in administrative law – an overview
December 2007
This overview is based on and created according to the German administrative law and its corresponding codes. As far as possible and reasonable, the Portugueseadministrative law, as well as European standards and recommendations have been taken into consideration for a comparison.
Index
I. Introduction
1. Application of legal norms by the administration
a) Legal norms
b) Application of legal norms
2. Controlling force of administrative courts
3. Binding and loosening of binding
II. The discretionary power of administration
1. The legal term of discretionary power
2. Requirements of discretionary power
3. The meaning of discretionary power
a) Individual discretion
b) General discretion
4. Rules of use
5. The Cases of misuse of discretion
a) Exceeding of discretionary powers
b) Non-use of discretion
c) Abuse of discretion
d) Violation of constitutional and administrative principles
6. Restriction of discretion
7. Administrative law in Europe
III. Indefinite legal terms
1. The indefinite legal term
2. The problem of concretization
a) Indefinite legal terms as a problem of perception
b) Theorie of scope for judgement
c) Theory of common discretionary rules
d) Discussion and evaluation of theories
3. Today’s point of view and other ideas of solution
a) Tests and exams as exceptional cases
b) Summary
IV. Further aspects
1. Coupling norms
a) Disappearance of discretion
b) The “swallowed” indefinite legal term
2. Exchangeability
3. Planning norms
1
Literature
Textbooks and recommendations
Maurer, HartmutAllgemeines Verwaltungsrecht
16. Edition, München 2006
C.H. Beck
Referred to as: Maurer (by page)
Erichsen, Hans-UweAllgemeines Verwaltungsrecht
Ehlers, Dirk12. Edition, Berlin 2002
de Gruyter
Referred to as: Erichsen/Ehlers (by page)
Caupers, JoãoIntroducão ao direito administrativo
5. Edition, Lisboa 2000
Ancora Editora
Referred to as: Caupers (by page)
Council of EuropeRecommendation No. R (80) 2: Concerning the Exercise of discretionary powers by administrative authorities
Translation auxiliaries
Köbler, GerhardRechtsenglisch
7. Edition, München 2007
Vahlen
Köbler, GerhardRechtsportugiesisch
München 2007
Vahlen
1
I. Introduction
1. Application of legal norms by the administration
The administration is considered to be a part of the executive power of state. It therefore applies and enforces the law, set up by the legislative power. In order to highlight and understand the legal institutes of discretionary power and indefinite legal terms, it is necessary to have a look at the structure of application of law, as these legal institutes become relevant within the application of law.
a) Legal norms
Legal norms are directives which are usually conditionally phrased. If certain facts are given that fulfil the abstract of records of a legal norm, a certain legal consequence shall apply. The legal norm itself therefore is built as a twostep: It consists of an abstract of records and a legal consequence (If – Then – Scheme).
Apart from these conditionally phrased legal norms, there are finally phrased legal norms. This type of norm is rather of directive kind, and expresses guidelines or achievements which are to be fulfilled by the administration. Within the subject of discretionary power and indefinite legal terms, the focus shall lie on conditionally phrased legal norms, as most issues concerning these legal institutes are raised within this type of legal norm.
b) Application of legal norms
The application of these conditional legal norms by the administration usually consists of four steps. At first the facts of a case need to be investigated and ascertained. Secondly the abstract of records of the legal norm has to be examined and interpreted. Thereafter follows the subsumtion, the application of the abstract of records on the given facts. If the facts of the case meet the abstract of records of the given legal norm, the fourth step, the determination of the legal consequence, follows.[1]
2. Controlling force of administrative courts
The application and enforcement of law by the administration is effectively controlled and supervised by the administrative courts. It is their obligation to examine the lawfulness of all administrative action. The requirement is, of course, that the affected party requests such examination.
Therefore the administrative courts are also applying law, though, rather reactively, whereas the administration acts primary.[2] If the court finds an administrative action to be false, the action has to be overruled by the court and either referred back to the administrative authorityor decided in a different way by the court itself. Thus, the administrative courts have the power of the “last word” and their final decision becomes indefeasible.
3. Binding and loosening of binding
It is a general principle nearly in any European administration law, that the administration is bound to the law given by the legislator. In German law this principle is codified in Art. 20 III GG (Grundgesetz, German constitution), in the Portuguese system this principle follows fromArt. 3 Codigo Procedimento Administrativo (CPA).
When the legislator, though, grants certain discretionary powers to the administration or uses indefinite legal terms, the administration is offered more freedom to decide upon a case. The principle of a bound administration thus becomes loosened. Furthermore, in some cases, the administration gains the power of the “last word” as the courts only examine the lawfulness of an administrative act and not weather the administrative decision within the range of legally granted discretionary power was appropriate or not.[3]
II. The discretionary power of administration
1. The legal term of discretionary power
As shown above conditionally phrased legal norms consist of an abstract of records and a legal consequence. The discretionary power is a legal institute which is placed on the side of the legal consequence of a norm. Such power is granted by the legislator when a certain abstract of records does not require just one certain legal consequence (as usual when the administration is bound to law), but enables the administration to choose from two or more options of legal consequences or from a range of action.[4]
Usually discretionary power is distinguished in two different kinds.On one hand the discretionary power of resolution offers the administration to decide weather to act at all(If-discretion); the discretionary power of selection on the other hand requires the administration to make a decision between the admissible legal consequences(What-discretion). In some cases both kinds of discretionary power are combined within one legal norm.
2. Requirements of discretionary power
Discretionary power can only be granted to the administration by the legislator and has to conclude from the legal norm itself.[5] Technically the granting of discretion is usually expressed by words like “can”, “may” or “is allowed to”. In rare cases the discretionary power can also result from the entire context of a legal norm.
In contrast when the administration is bound to law and the abstract of records of a legal norm requires a single and certain legal consequence expressions like “must”, “has to” or “may not” are commonly used.
In between these two groups are the so called „should-norms“. This form of legal norm is usually used by the legislator, when the administration under certain circumstances shouldtake action, but only in unusual situations as exceptions may refrain from it.
3. The meaning of discretionary power
Whereas the fully law-bound administration only acts by applying given law, the discretionary administration is able to make self-responsible decisions, even if being directed by the legislator.
a) Individual discretion
The implementation of discretionary power in administrative law mainly serves the justice of the individual case. As it is completely impossible for the legislator to set up legal norms in order to regulate every individual case that may occur, the same legal norm has to be applied to a variety of individual cases that may be similar to each other but not equal. With the ability of choosing from a range of different legal consequences the administration gets the chance, by considering the aim of the ratio legis of a legal norm on the one hand and the given circumstances of a certain individual case on the other hand, to find a just and appropriate solution and act accordingly.
b) General discretion
Secondarily there may also be general discretion. A superior authority may in some cases use their discretionary power to set up guidelines which have to be applied by all inferior authorities. General discretion therefore does not aim at a particular individual case, but at the range of usual cases of a certain kind. The superior authority can for example give order to the inferiors that the payment of minor fees, e.g. less than EUR 2, shall not be enforced by a bailiff.[6]
It is obvious that individual and general discretion can contradict each other when both apply to the same case. In that case it has to be examined if the use of general discretion is even allowed. Further it has to be kept in mind that discretionary power primarily shall lead to justice in the individual case. In unusual cases the inferior authorities may also move away from any general discretion; as a conclusion from this, the individual discretionary power may be considered as superior to the general discretion.
4. Rules of use
Although the administration authorities have a certain right to shape their actions by granted discretionary power, this power may not be considered as free will. When performing administrative acts within their discretionary powers, the administration authorities are bound to the general rules of use of discretionary power. Any legal action has to be undertaken by obeying the ratio legis of the legal norm applied and the aim of allowance of discretion.[7] Furthermore the legal borders of the discretionary power have to be met as stated in the legal norm.
These rules of use of discretionary power in German law are codified in § 40 VwVfG. Any use of discretionary power which violates these boundaries is misuse. The compliance of these rules is, as stated above, examined and supervised by the administrative courts. Though, it has to be distinguished: Only the violation of the legal borders of granted discretion leads to a faulty use of powers and only such decisions have to be overruled by the courts. A decision of an administrative authority which has been drafted according to § 40 VwVfG may not be considered faulty, even if the authority could have made a more appropriate decision within a particular case.[8]
5. The Cases of misuse of discretion
Abuse of discretion usually appears in form of the following cases.
a) Exceeding of discretionary powers
This is present when the authority chooses a legal consequence which is not within the range granted by the legal norm.
e.g.: The legal norm states a fine for speeding on a highway between EUR 30 and EUR 80. The authority fines a speeding person with EUR 100.
b) Non-use of discretion
Non-use of discretion is the case when an administration authority does not use its granted discretionary power in a particular case. This may be due to negligence or error.
e.g.:Citizen A requests a building permit from authority B. Authority B, though, does not issue this permit as they believe falsely this request not to be within their competence.
c) Abuse of discretion
An authority abuses its discretionary powers if its decisions are not exclusively made upon the ratio legis and the aim of the legal norm. This type of misuse is strongly connected with the above stated meaning of discretionary power.
e.g.:According to a legal norm an assembly may be dissolved by the police if the assembly represents a threat to public law and order. The police resolve the assembly of the political party A because of such threat but primarily in order to suppress their political views.
d) Violation of constitutional and administrative principles
A decisive misuse of discretion also lies in a violation of constitutional or administrative principles. As a state’s constitution builds the fundament of the legal system all public force and all administrative action must happen in conformity with the principles of the constitution.
Most relevant are the principle of equality before the law, the principle of necessity and the principle of proportionality.
e.g.:The authority fines a male person with EUR 50 for speeding on the highway. For the same felony under same conditions a female person gets fined with EUR 70.
6. Restriction of discretion
Discretion usually enables the authorities to choose from a variety of legal consequences. There are cases, though, when the authority’s choices are limited, when the discretion is restricted. This is the case when the application of a generally lawful legal consequenceappears as a misuse of discretion in a particular case. This can even go as far as leaving only one possible action to the authority (restriction to zero).
This restriction of discretion can especially occur due to the influence of general constitutional principles.When an administrative authority for example has decided upon a hundred cases of the same kind in the same way, it becomes bound by its own action and due to the principle of equality before the law has to decide case number 101 in the same way. Even if the legal norm rationally allows a different decision the administrative authority is restricted in discretion.
This self-binding may only be disrupted when a general change of jurisdiction is being introduced for all future cases.
7. Administrative law in Europe
In recent times the different legal systems of European countries are moving more and more towards uniformity especially in zones of public law and interest. This movement is enforced by the Council of Europe (COE) which drafts recommendations containing a minimum amount of general principles which should be applied in the state’s legal system.
The COE’s recommendations regarding the exercise of discretionary powers contain as main obligation, the surety that the latitude conferred by legislation is exercised in a just and fair manner and not abused or used arbitrarily, as well as the general principles of Objectivity and Impartiality, Equality before the law, Proportionality and Reasonable time of decision and the steady application of administrative guidelines which is closely related to the principle of equality.
In the German legal system these recommendations are partially already implemented in the constitution which is binding for all public forceand partially conclude from the administrative code as for example § 40 VwVfG and § 114 VwGO.
The same guidelines are applied by the Portuguese exercise of discretionary power. However the terms of use of discretionary power are not codified in the Portuguese CPA, the use has to meet the expectations of the constitution and administrative principles stated in the Articles 3-9 of the CPA which correspond with the general principles set up by the COE.
III. Indefinite legal terms
Whilst the discretionary power is a matter of the legal consequence of a legal norm, the problem of indefinite legal terms is located in the abstract of record of a norm.
1. The indefinite legal term
The abstract of record of a legal norm may consist of a variety of definitional elements. Large numbers of these definitional elements are precisely defined and narrowed down to a single meaning.Terms like “property”, “trade” or locals are not open to any interpretation as they have only one meaning in the context of law which may conclude from establishmentby practice or just from the term itself. On the other hand there are legal terms which are either open to interpretation or contain a variety of different meanings in legal matters. Such terms are used by the legislator in order to cover cases which are neither reasonably foreseeable nor to be fenced off definitively. Such terms are called indefinite legal terms (e.g. public law and order). In many cases the limited human ability of defining forces the legislator to use such indefinite terms.[9]
Thus it is the administrative authority’s obligation to examine the objective value and meaning of such term in any individual case.Therefore legal norms that contain such indefinite legal terms can also be considered as unfinished legislation which the administration is delegated to complete by exploring its very meaning.[10]
2. The problem of concretization
It is obviously very problematic to concretize and interpret such indefinite legal terms especially when practicing the law on an individual case. Though, this is not a specific problem of administrative law. The interpretation and concretization of terms is a common problem in all legal fields and therefore requires the application of general rules of interpreting legal terms.
Next to the problem of plain concretization, a second question enters this process in administrative law, a question of competence. Whereas the administrative authorities have the competence of the last decision within the legal boundaries, free from superficial control of the courts when exercising discretion, the question rises: Who is competent to concretize an indefinite legal term at last, the administration or the administrative courts? Who has the power of the “last word” in doubtful cases? Regarding this question, two main theories are represented.
a) Indefinite legal terms asa problem of perception
This theory represents the point of view, that all concretization of indefinite legal terms is simply a problem of perception. According to this theory all administrative action is to be seen as determined and rationally fully controllable enforcement of law. Correctly concluding from this, the administrative judge has the full sovereignty of controlling the authorities’ interpretations.
Supporters of this theory are thus defendingthe idea of a legally fully bound administration and respecting the citizens’ rights of full access to justice, in correspondence with Art. 20 III and Art. 19 IV GG in German law and do not allow any loosening of these basic principles. In the Portuguese system this corresponds to Art. 3 and Art. 12 CPA.
Mainly this theory is based on two strong arguments. On one hand it is based on the enforcement of law in the fields of civil law and criminal law. In these fields the courts have without doubt the full power to concretize indefinite legal terms. Often the administrative judge has to make decisions although lacking expert knowledge, which the administrative authority rather has. But same decisions have to be made by civil and criminal judges under same conditions. This is why they are relying on experts as auxiliaries when making decisions. Why should this be handled differently in administrative law?