The indirect review of administrative action in comparative perspective: searching for a fair balance between legality and legal certainty, by M Eliantonio

1. Introduction

As a basic tenet of the rule of law, virtually all legal systems around the globe provide mechanisms to directly challenge various forms of administrative action which applicants may deem unlawful. Beyond this system of direct review, legal systems provide, in various shapes and forms, for the possibility of indirectly challenging the validity of an administrative act by attacking the legal basis on which it is founded. This system can regard either general acts or acts of individual scope and be available before administrative or ordinary courts. This raises several questions regarding the notions of rule of law and separation of powers, the balance between the opposing principles of legality and legal certainty, the hierarchical relations between legislative and administrative acts as well as the effectiveness of the systems of judicial review. An effective and thorough control of the administrative action is all the more important in light of the increased regulatory activity by the administration in recent years.

This post provides some comparative thoughts on the systems of indirect review of administrative action on the basis of the national perspectives presented in a volume on this topic. In this collection, the authors of the national chapters have provided an overview of their national rules on the system of indirect review of administrative action and discussed, in particular, why the system is set up in its current form, how it works in practice, how it seeks to balance the values of legality and legal certainty and what its current challenges are. Before we embark on this comparative quest, however, it should be noted that thorough comparative analyses have often been hindered by the lack of coherent and consistent data in several legal systems.

In this post, we first sketch the scope and rationale of the system of indirect judicial review, then we move to examine the bodies which can indirectly review the administrative action as well as (procedural) workings of the mechanism. Subsequently, we try to provide some insights into the concrete operation and current use of the system of indirect review. We finally move to discussing the notion of indirect review of administrative action as a tool to balance legality and legal certainty and draw some conclusions on the existence of a ‘common core’ in Europe when it comes to the system of indirect review of administrative action.

2. Comparative findings

Why a system of indirect review of administrative action exists and what the contours of the notion are cannot be univocally answered. The only general statement that can be made is that the rationale and scope of the system is very much linked to what can be challenged directly as well as when and before whom.

All systems of judicial review recognise the possibility of directly reviewing the majority of individual administrative acts, but this possibility is subject to rules on time limits. The question is, then, whether such individual acts might also be subject to indirect review and whether this possibility is also available when they cannot be reviewed because of the lapse of time limits. Here, the legal systems vary quite widely: When indirect judicial review of individual acts is foreseen, the rationale is to be found in the imperative to preserve legality, even (sometimes) at the expense of the applicable time limits and, therefore, of legal certainty.

With respect to general acts, the default position is the opposite in that their direct judicial review might be barred because of standing requirements, because they are perceived as unable to infringe potential applicants’ legal positions or because of a specific legislative limitation. In order to compensate for the limitations in direct review, legal systems foresee a mechanism of indirect review of general acts. Another reason for the existence of a system of indirect review of administrative action lies in the interlinkages between the administrative and ordinary courts. Indeed, when administrative acts are relevant for procedures before ordinary courts, the system of indirect review allows for the control of administrative measure outside the established administrative judicial review procedure.

When it comes to the bodies which can indirectly review administrative action, the possibilities range from ordinary courts to administrative courts, administrative review bodies and even Constitutional Courts. In almost all the legal systems covered in our comparative investigation, the mechanism of indirect review can be used before both ordinary and administrative courts, and, in some cases, it can also be used before the Constitutional Court when administrative authorities infringe on rights provided directly in the Constitution.

Concerning the specific procedural ecosystem in which the mechanisms of indirect review operate, several similarities arise, with a few national peculiarities standing out. In general, there are no limitations in terms of standing to ask for the indirect review of administrative action, but in some jurisdictions judicial bodies also can instigate the mechanism of indirect review ex officio. In most legal systems, there are no specific grounds of review (different or more limited than for direct claims) in claims for the indirect review of administrative acts, nor is there a difference in terms of the intensity of review which the courts perform when indirectly reviewing administrative measures as compared to direct review. However, in some legal systems, a number of rather similar restrictions have been set up when courts indirectly review the administrative action.

For example, in Spain, it is, by now, well-established in case law that formal and procedural flaws can only be challenged in the system of ‘indirect appeal against regulations’ if they are particularly serious (such as in the complete absence of the prescribed procedure or the lack of a necessary binding opinion during the decision-making process). A similar trend can be observed in France, where first the legislator (in urban planning matters) and later the Council of State limited the possibility to invoke formal and procedural errors in indirect claims. The current case law, indeed, allows applicants to rely on these flaws only until the expiry of the period for a direct claim. Interestingly, in the Netherlands, one can witness an opposing trend toward a more intensive control of general acts which are reviewed indirectly.

When it comes to the effects of the mechanism of indirect review, these are in principle inter partes, meaning that the act indirectly reviewed will not be annulled, but only disapplied. This means that the act itself will not disappear from the legal system, so the administrative measure could still be applied in other cases.

With respect to the concrete operation of the various mechanisms of indirect review, the conclusions emerging from the various chapters of our comparative investigation could not be more different. In some legal systems, the evidence for the use of the procedure of indirect review has definitely been underwhelming. In other legal systems, the procedure seems to be used routinely and relatively unproblematically.

What does our comparative investigation tell us about the balance between the principles of legality and legal certainty in the various systems of indirect review of administrative action? Legal systems give very different weights to those principles, and the balancing exercise can give rise to rather diverse solutions. A striking example in this respect is Romania, where the principle of legality clearly prevails over legal certainty, with general acts being challengeable directly without time limits, and individual acts being subject to indirect review in the same way without time limitations. In the Netherlands, the balance seems to be moving toward a greater importance in favour of the principle of legality. In Dutch administrative law, the issue of striking a reasonable balance between legal certainty and legality has been the focus of attention for the courts and has become more relevant recently, especially considering the case law developments which point toward both a broader and more intense review of general binding regulations. The EU chapter shows, instead, that, by shielding several acts from direct and indirect judicial scrutiny at EU level and identifying the national courts as the main gatekeepers for private applicants, the Court of Justice is unintendedly protecting legal certainty, thereby creating a highly fragmented and unpredictable system of judicial protection. In this sense, the mechanism of indirect review, because of the limited function it can play, does serve to protect legal certainty at the expense of legality.

3. Conclusions

Our thoughts in this concluding section are dedicated to the question of whether there is a shared (European) concept of indirect review of administrative action and whether there is any clear shortcoming and ensuing discussion on the procedure for indirect review in the legal systems analysed in this book.

Our comparative endeavour has shown that the mechanisms of indirect review of administrative action roughly play two main functions (at least on the Continent): in relation to individual administrative decisions, where this is possible, the system of indirect review may be seen as an additional control that can prevent the application of unlawful decisions in the name of respect for the principle of legality; for general acts, the system of indirect review is, instead, made available to compensate the limited availability of a mechanism of direct control. Furthermore, legal systems largely converge on the inter partes effects of indirect control as well as on a broad competence to carry out the review beyond administrative courts.

While this reveals the existence of something of a ‘common core’ of indirect review, our investigation shows, at the same time, that the debate around the mechanism of indirect review, and its topicality, has very different focuses and intensities across the European legal systems we examined. For example, in Belgium, the topic has received much scholarly attention, and the debate is inter alia currently centred on the possibility for all administrative authorities to conduct, under certain conditions, an indirect review of administrative action, something which is, at the same time, unknown to most legal systems and, at the same time, uncontentiously accepted in Sweden. In the Netherlands, much of the debate and the developments in case law have concerned the scope and intensity of indirect review, a topic which has witnessed either no discussion at all in the other legal systems or a trend in precisely the opposite direction, such as in France.

Posted by Professor Mariolina Eliantonio (Maastricht Law School).

Suggested M Eliantonio, “The indirect review of administrative action in comparative perspective: searching for a fair balance between legality and legal certainty”, available at