Based on a recent book that offers a comparative analysis concerning Italy, France and Germany, this blog post focuses on time limits in administrative litigation, specifically events triggering the commencement of short limitation periods for challenging administrative actions, which is a key rule for ensuring effective judicial protection. The topic is explored in parallel with the duty to give reasons (a requirement binding on public administrations in all continental legal systems), which, among other functions, serves to increase the effectiveness of judicial protection. The duty allows the recipients of the administrative decision to understand the rationale behind it, assess its legitimacy from the substantive perspective, and determine whether it is advisable to file an appeal. Against the backdrop of the tendency across the three systems examined to treat the failure to give reasons as a marginal issue—seen as a formal element that does not affect the substance of the measure (and therefore does not lead to its annulment)—the fulfilment of the duty to give reasons becomes critical as a trigger for the time limits for access to justice. In this context, this blog argues that legal institutions and national doctrines regarding the relationship between the duty to give reasons and the commencement of limitation periods for access to justice should be reconsidered from a new angle to ensure better alignment with the principle of effective judicial protection.

1. Setting the scene: the rationale for time limits to challenge administrative actions

Time limits within which individuals are entitled to file an appeal before a court is a common feature of all legal systems and reflects the need to ensure legal certainty. When the claim serves to obtain the annulment of an administrative decision, all the continental legal traditions establish a short limitation period, and the three legal systems examined here are no exception: 60 days in Italy, two months in France, and one month from the notification of the decision regarding the objection in Germany.

This arises from the need, specific to the public system, to ensure the effectiveness and efficiency of the public authorities’ actions, preventing them from being unduly exposed to the risk of challenge for extended periods. From this perspective, time limits “serve the interests” of the administration, and their short duration acts as a safeguard for the stability of public decisions. However, when viewed from the perspective of the individual, these time limits must, in practice, uphold the principles of due process and the “right to an effective legal remedy”, a principle widely recognised in modern legal systems, enshrined in national constitutions, and in international and EU treaties (see Articles 6 and 13 ECHR and, lately Art 47 CFREU).

The presence of shorter or longer time limits with respect to certain matters, or the absence of time limits for specific types of actions (e.g. the indirect review of decisions of general scope or a declaration that an administrative decision is void ab initio), does not affect the general rule: as a general principle, actions aimed at verifying the proper use of public power are subject to short time limits.

(Both national and supernational) case law has consistently respected the discretion afforded to the legislator in procedural matters, provided that the limitation period does not reduce the right of defence beyond the bounds of reasonableness and effectiveness. At the EU level, while the Emmott case (C-208/90) marked an ‘aggressive’ approach to time limits, where the CJEU appeared to affirm an “in abstracto” incompatibility of procedural rules barring claims based on a directive if the Member State in question had not properly transposed the directive into its domestic system, this stance can be seen as an exception. Subsequently, CJEU case law retreated from its own position and shifted the focus to testing the compliance of time limits with effective judicial protection based on their being sufficiently precise, clear, and foreseeable (see, for example, Uniplex C-406/08). The CJEU also assessed the absence of discrimination with respect to similar domestic rules and the absence of unreasonable restrictions on the exercise of the rights conferred by EU law, applying the two-tiered ‘principle-of-effectiveness’ test, developed in relation to time limits in the light of the Rewe case (C-33/76) and reaffirmed in decisions such as Universale-Bau (C-470/99).

An analysis of the case law reveals that while it is relatively straightforward to establish the ‘abstract’ reasonableness of time limits, greater challenges emerge when it comes to assessing their reasonableness in concrete terms.

It is important to note that the existence, in all legal systems, of mechanisms that ‘mitigate’ the strict consequences of short statutory time limits—by excusing non-compliance based on the specific circumstances of the case—does not diminish the need to assess, in general terms, how the rules governing the commencement of appeal time limits strike a balance between the principles of legal certainty and effective judicial protection. These rules are inherently discretionary, allowing the judge to apply them on a case-by-case basis.

In this scenario, the identification of events triggering the start of the time limits plays a prominent role.

2. Triggering access to justice: the problem of being aware of an infringement

It is well established that administrative actions can, by their nature, harm individuals’ interests (either by causing a disadvantage or denying a benefit). Therefore, in successfully challenging such an action before a court and securing its annulment, what matters is not the harm caused, but its unlawfulness.

Therefore, the effectiveness of procedures for reviewing infringements of provisions governing administrative action depends on the fact that the periods set for bringing such proceedings begin to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of the provisions. Often, being aware of an adverse decision (through legally required notices, notifications, and publications) does not correspond to awareness that it is unlawful (i.e., an infringement of the applicable rules). In most cases, this ‘lack of knowledge’ stems from flaws in the decision itself, which might not be adequately reasoned or unclear. See, for example, the Santex case (C-327/00), concerning the challenge—allegedly filed outside the time limit—of an unclear contested measure, where the public authority provided a final interpretation that only later revealed its unlawfulness.

In some cases, a fully reasoned and clear decision may not reveal its unlawfulness, particularly when the unlawfulness arises from ‘collateral information’, such as underlying evidence that is not included in the decision’s reasoning. This is the case, for instance, with claims brought against ‘double-acting’ administrative acts (Drittwirkung), which, by expanding the legal sphere of the addressee, deny a benefit to third parties interested in obtaining it (in the case of competitive procedures) or otherwise cause prejudice to them (in all other cases). In situations such as this, the action to be challenged pertains to a position that is unrelated to the third-party adversary affected by it. As a result, the latter experiences an ‘informational asymmetry’ that is often not remedied by the formal communication of a reasoned decision (where such communication is required). Theoretically, the issue could be addressed by imposing comprehensive and effective communication requirements on the administration, such as mandating the communication (or immediate availability) of the reasoned decision and all preliminary acts or evidential material not included in the decision’s reasoning. However, in practice, conflicting concerns relating to privacy and the protection of (commercial) confidentiality often make this solution difficult to implement.

Another situation where a fully reasoned decision cannot entail knowledge of the infringement occurs when the flaws to be challenged arise at a later stage. An example in the field of public procurement is provided by the CJEU, which stated that time limits for a measure to annul the decision awarding a contract start running again when the contracting authority adopts a new decision – after the award decision has been made but before the contract is signed – which may affect the lawfulness of that award decision (Idrodinamica case C‑161/13).

Although the last two cases are exceptions, as a general rule, giving a fully reasoned decision enables the addressee to be aware of the infringement. The link between the criteria of knowledge and the duty to give reasons was more recently underscored by the CJEU in relation to public procurement, where the ‘remedies’ directives links the duty to state reasons and the duty to communicate certain acts pertaining to the awarding procedure (see Dir. 89/665/CEE and Dir. 92/13/CEE as amended by Dir. 2007/66/CE, sub specie, Arts. 2-quater, and 2-bis, para. 2). The CJEU stated that a national law, providing for time limits running from the communication to the parties concerned of the decisions at stake is compatible with EU law “only if the decisions sent contain a summary of the relevant reasons ensuring that the parties concerned knew or ought to have known of the infringements of EU law alleged” (CJEU, C-54/18, Cooperativa Animazione Valdocco, par. 32.).

3. The duty to give reasons and the judicial treatment of violations

The requirement to give reasons is part of the “common core” of the procedural guarantees in European administrative law, which can be traced back to their common constitutional traditions and is now directly grounded in Article 41 CFREU.

While, according to legal doctrine, the statement of reasons serves a number of different functions, one of the principal rationales for the obligation is to guarantee the right of defence against administrative measures. The main factual and legal reasons that led the authority to make a decision must be disclosed to allow individuals to assess whether and how to defend their rights in court. With regard to general laws or ‘codes’ governing administrative procedure, each legal system adopts a different approach to regulating the requirement to give reasons. Some systems, such as those in Italy and Germany, establish this as a general rule, with specific exceptions provided by law. Others, like France, require reasons to be stated only for specified measures, although the principle of ‘optional motivation’ has been increasingly undermined by laws that impose the duty to give reasons. Thus, the general trend is toward broadening the duty to state reasons. In principle, the obligation must be fulfilled at the same time as the administrative decision is served.

In apparent contrast to the central importance of motivation from the standpoint of the principle of good administration (which considers the duty to give reasons as a tool for transparency and accountability in administrative action), the judicial treatment of violations of this fundamental requirement shows that only in exceptional cases do deficiencies in the statement of reasons result in the annulment of a measure since any defects in reasoning can often be ‘remedied’ during judicial review.

A comparative analysis reveals the cross-cutting presence of rules that prohibit a judge from annulling measures affected by a defect in the statement of reasons when it emerges in court that, from a substantive perspective, their content could not have been any different from the one actually adopted. This is the case with German rules, which allow, in various ways, the amnesty of a “deficit” in reasoning during the administrative procedure (see §§ 45 and 46 VwVfG) or during judicial review (see § 114,2 VwGO). The same can be said for Section 2 of Article 21-octies of the Italian law on administrative procedure (L. N. 241/1990), which states that a judge cannot annul an administrative act affected by formal and procedural defects, as far as they do not have an impact on the content of the decision. The applicability of such provision to the duty to give reasons is controversial in Italian case law. It is admitted by the case law allowing for “completing the motivation ex post”. The approach seems to be different in France, where, despite the tendency to prevent judges from annulling decisions affected by breaches of procedural rules but correct from the substantive point of view (since the Dantony case of 2011), this doctrine is considered inapplicable to the duty to give reasons (CE, 7.12.2016, CARSAT d’Aquitaine, No. 386304).

In sum, with varying intensity across the three systems analysed, there is a tendency to recognise rules on procedure (and in some cases, on the form) of administrative decision as having a supporting role. In this context, challenging an administrative act solely on grounds of the failure to provide reasons can be a very risky defensive strategy as far as this element is treated as a formal or procedural requirement.

4. Subsequent provision of reasons as a trigger for the commencement of time limits

From the traditional perspective on judicial review of administrative action, it could be argued that a defect or failure to give reasons would always amount to unlawfulness, justifying an immediate challenge. If necessary, later disclosure of the full reasoning behind the challenged decision could justify supplementing the application (i.e. bringing an ‘action adducing additional grounds’). Given the significant developments in the judicial review of administrative actions, it may no longer be appropriate to maintain a rigid, formalistic approach to the duty to give reasons. In this light, this essay proposes to link the requirement to give reasons with the commencement of time limits in cases where such a defect has prevented a timely challenge to the action (when the aggrieved party considers it impractical to file a claim solely on the ground of the defect or failure to give reasons).

The comparative analysis carried out leads to the same conclusion concerning certain national rules (see 45,3 VwVfG) linking the subsequent statement of reasons with the opening of new time limits. The same can be said for the French legal system where, despite a rule concerning implicit rejection decisions (L. 232-4 CRPA), the Code on the relationship between the public and the administration provides that such decisions must be reasoned upon request and that, in such cases, the time limit for challenging the said decision starts again from the day the reasons are given. In Italy, this approach is supported by a recent ruling from the Constitutional Court, which, despite some ambiguities in its reasoning, appears to uphold the principle that it would violate the guarantees of the right to access to justice if parties affected by an administrative measure were required to take legal action before being in a position to identify the infringement they wish to challenge. Additionally, the Court observes that parties should be able to benefit from the full statutory time limits for filing an appeal (C. cost. N. 204/2021).

As long as the substantive legislation does not require a public authority to give reasons and disclose them in full to the recipient (along with the ‘collateral acts’ that form the basis of the decision), there will always be cases where awareness of the adverse decision and awareness of the underlying infringement do not coincide. In such a scenario, the principle of effective judicial protection dictates that when the reasons are eventually given, allowing the aggrieved party to identify the infringement they seek to challenge, the provision of those reasons should be considered to trigger the time limit for access to justice.

5. The comparative method in administrative law: a new appoach for observing traditional issues?

It has been noted that comparative administrative law is currently experiencing a thriving period. This ‘renaissance’ is also evident in the field of judicial review of administrative action, where application of the comparative method has traditionally been perceived as more problematic (with some important exceptions, beginning with the 1971 study by M. Fromont and J.M. Auby).

The current convergence of continental legal systems around common standards in the judicial review of administrative action is thus a complex phenomenon, where the influence of academic research, EU law, international law (ECHR), and the growing tendency in case law to apply comparative reasoning are often difficult to distinguish clearly.

In this favourable context, the comparative method can help advance national legal systems by moving beyond excessive conceptualization and shed light on issues that are either overlooked or provide a fresh perspective on traditional problems. The focus on events that trigger time limits for challenging administrative actions serves as a valuable example.

This research, which examines both the legal framework and the developments in case law across the three legal systems, led to the conclusion (alongside the previously discussed necessary link between subsequent reasoning and the commencement of time limits) that there is a need to revisit national case law that (i) applies the criterion of ‘full knowledge’ to ‘bring forward’ the commencement of the time limit for appeal when notification of the measure is subject to specific legal formalities that are not followed correctly, and (ii) holds that a measure without an indication of the time limit and the authority to which an appeal should be addressed does not prevent the time limit continuing to be in effect.

What may initially appear to be a minor issue actually reflects two fundamental but opposing values that all procedural systems strive to balance: certainty and justice. The pursuit of one often comes at the cost of sacrificing the other.

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Posted by Flaminia Aperio Bella, Roma Tre University, Rome, Italy

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Flaminia Aperio Bella is Assistant Professor of Administrative Law at the Department of Law, Roma Tre University (unanimously accredited to serve as a full professor of administrative law in 2023), where she holds the chairs in Independent Administrative Authorities Law, Health Law, and One Health. She holds the Jean Monnet Module PROHTECT-Promoting opeRationalisation of One Health Through EU juridiCal Tools, co-funded by the European Union (2024-2027). She has been a visiting fellow at several European universities and institutes (MPIL of Heidelberg in 2014 and 2017; FÖV of Speyer in 2017 and 2019; University of Paris Nanterre 2019) and in 2019 was awarded the DAAD fellowship for the “Developing Common European Standards in Judicial Control of Public Administration” project. She has published articles on administrative judicial review and procedures in both Italian and international journals, as well as in collective volumes. In 2017, she published her first book, Tra procedimento e processo. Contributo allo studio delle tutele nei confronti della pubblica amministrazione, which addresses procedural guarantees and judicial review of administrative actions. Her 2023 monograph “Il tempo del processo sull’atto ai tempi del processo sul rapporto. Questioni e tendenze tra Italia, Francia e Germania”, Vol. I “Decorrenza del termine di impugnazione e ruolo della motivazione dell’atto amministrativo” is the subject of this post. Flaminia is a member (also holding coordinating roles) of numerous research groups in Italy and internationally. During the Italian Presidency (2020-22) of the Association of the Council of State and Supreme Administrative Jurisdictions (ACA-Europe), she took part in the working group that edited the “Glossary on Legal Terms”.