Administrative DisputeAdministrative Dispute

TermTerm, , SubjectSubject, , TypesTypes, , Competent Competent BodiesBodies, , PartiesParties, , ProcedureProcedure

The Term The Term ‘‘Administrative Administrative DisputeDispute’’ The administrative dispute is a form of The administrative dispute is a form of

organized and systematic judicial control organized and systematic judicial control over the legality of administrative actsover the legality of administrative acts

There are two systems of judicial control , or There are two systems of judicial control , or in other words two types of administrative in other words two types of administrative disputes: The disputes: The Anglo-Saxon Anglo-Saxon (the USA, the (the USA, the UK, and so forth apply common law with UK, and so forth apply common law with competencies lying within the regular competencies lying within the regular judiciary), and the judiciary), and the European – continental European – continental (France, Germany, Belgium, Italy, the (France, Germany, Belgium, Italy, the Scandinavian states, and other European Scandinavian states, and other European nations apply special (specific) nations apply special (specific) administrative-legal norms within the administrative-legal norms within the competencies of specialized administrative competencies of specialized administrative courts)courts)

Subject of the administrative Subject of the administrative disputedispute

General (basic) clause systemGeneral (basic) clause system

Enumeration systemEnumeration system

General clause system with General clause system with negative enumerationnegative enumeration

General (basic) clause systemGeneral (basic) clause system

All legal acts of All legal acts of administrative bodies (general administrative bodies (general and individual) are subject to and individual) are subject to administrative-judicial controladministrative-judicial control. .

There is no specific listing There is no specific listing of acts that are subject to an of acts that are subject to an administrative dispute, within a administrative dispute, within a law, but there is a provision that law, but there is a provision that covers all acts, in a general covers all acts, in a general mannermanner..

Enumeration systemEnumeration system

Only the acts that are Only the acts that are specifically listed within a law can be specifically listed within a law can be subject to an administrative disputesubject to an administrative dispute..

From a historical perspective, From a historical perspective, was the first system to developwas the first system to develop..

The enumeration system The enumeration system foresees a limited range of the foresees a limited range of the judicial control over the acts of judicial control over the acts of administrative bodies.administrative bodies.

General clause system with General clause system with negative enumerationnegative enumeration

All acts of administrative bodies are All acts of administrative bodies are subject to an administrative dispute, subject to an administrative dispute, excluding acts listed (enumerated) excluding acts listed (enumerated) within a legal provision, thus within a legal provision, thus representing an exception from the representing an exception from the general rule. For example, these acts, general rule. For example, these acts, most often, include the basic legal acts most often, include the basic legal acts of administrative bodies, acts of the of administrative bodies, acts of the legislative body, acts of the legislative body, acts of the Government, etc…Government, etc…

Positive enumeration systemPositive enumeration system

The new, Macedonian, Law on administrative The new, Macedonian, Law on administrative disputes (LAD) contains a positive enumeration disputes (LAD) contains a positive enumeration systemsystem

It explicitly lists the particular acts of the It explicitly lists the particular acts of the Government, units of Local Self-government, Government, units of Local Self-government, other state bodies and bodies with public other state bodies and bodies with public authority, acts brought in a misdemeanor authority, acts brought in a misdemeanor procedure, electoral procedure, acts on procedure, electoral procedure, acts on appointments and dismissals of public appointments and dismissals of public functions, and even general legal acts that functions, and even general legal acts that regulate particular relations, administrative regulate particular relations, administrative disputes arising from administrative contracts, disputes arising from administrative contracts, and individual administrative acts for which and individual administrative acts for which second-tier deciding is not provided as a legal second-tier deciding is not provided as a legal remedy.remedy.

Types of administrative Types of administrative disputesdisputes

Objective and subjectiveObjective and subjective Dispute on the basis of legality, Dispute on the basis of legality,

and dispute on the basis of full and dispute on the basis of full jurisdictionjurisdiction

Previous (dispute on the basis Previous (dispute on the basis of silence of the administration) of silence of the administration) and additionaland additional

Objective and subjective Objective and subjective administrative disputesadministrative disputes An objective administrative dispute is An objective administrative dispute is

a dispute where the subject that is a dispute where the subject that is being decided on is an objective being decided on is an objective legal situation or a general legal actlegal situation or a general legal act

A subjective administration dispute is A subjective administration dispute is a dispute where the subject that is a dispute where the subject that is being decided on is a subjective being decided on is a subjective legal situation or an individual legal situation or an individual administrative actadministrative act

Dispute on the basis of Dispute on the basis of legality, and dispute on the legality, and dispute on the basis of full jurisdictionbasis of full jurisdiction

A dispute on the basis of legality is an A dispute on the basis of legality is an administrative dispute that conducts control administrative dispute that conducts control over the legality of the act, and the court over the legality of the act, and the court can subsequently nullify the illegal act and can subsequently nullify the illegal act and return it to its initial bearer, who will have to return it to its initial bearer, who will have to decide on it once again.decide on it once again.

A dispute on the basis of full jurisdiction is A dispute on the basis of full jurisdiction is a dispute through which the court nullifies a dispute through which the court nullifies the illegal act, and subsequently, on the the illegal act, and subsequently, on the basis of merit, solves the case with a basis of merit, solves the case with a judgment that fully replaces the act.judgment that fully replaces the act.

Previous and additional Previous and additional disputedispute A previous dispute is the dispute on A previous dispute is the dispute on

the basis of silence of the the basis of silence of the administration. The administrative-administration. The administrative-judicial procedure is being conducted judicial procedure is being conducted against an act that was not brought, against an act that was not brought, solely because of the fact that the solely because of the fact that the competent body did not bring the act, competent body did not bring the act, which in turn violates the rights of the which in turn violates the rights of the party.party.

An additional dispute is an An additional dispute is an administrative dispute conducted administrative dispute conducted against an already brought, final, act.against an already brought, final, act.

Bodies competent for conducting Bodies competent for conducting the administrative-judicial dispute the administrative-judicial dispute in the Republic of Macedoniain the Republic of Macedonia The Administrative Court of the The Administrative Court of the

Republic of MacedoniaRepublic of Macedonia First tier court composed of 29 First tier court composed of 29

Judges elected by the Judicial Judges elected by the Judicial Council of the Republic of Council of the Republic of MacedoniaMacedonia

Brings Decisions in a council Brings Decisions in a council composed of three judgescomposed of three judges

Bodies competent for conducting Bodies competent for conducting the administrative-judicial dispute the administrative-judicial dispute in the Republic of Macedoniain the Republic of MacedoniaHigh Administrative Court1) Has jurisdiction over apeals against decisions of the Administrative court;2) Decides on a clash of competencies between Local selfgovernment authorities;3) Has other competencies regulated by law.

Bodies competent for conducting Bodies competent for conducting the administrative-judicial dispute the administrative-judicial dispute in the Republic of Macedoniain the Republic of Macedonia The Supreme Court of the The Supreme Court of the

Republic of MacedoniaRepublic of Macedonia Decides on the basis of Decides on the basis of

extraordinary remedies (renewal extraordinary remedies (renewal of the administrative procedure)of the administrative procedure)

Brings decisions in a council Brings decisions in a council composed of three judgescomposed of three judges

Parties in the administrative Parties in the administrative disputedispute Filer of the lawsuitFiler of the lawsuit– – The entity that is not The entity that is not

satisfied with the final administrative act. satisfied with the final administrative act. When referring to administrative contracts When referring to administrative contracts this can be any of the contracting entities.this can be any of the contracting entities.

Party being suedParty being sued – – The entity that brought The entity that brought the act being disputed (public-legal entity). the act being disputed (public-legal entity). When referring to administrative contracts When referring to administrative contracts this can also be the private entity that is a this can also be the private entity that is a contracting party. contracting party.

Interested entity Interested entity –– Entity, which with the Entity, which with the nullification of the dispute administrative nullification of the dispute administrative act, would suffer damages.act, would suffer damages.

BasisBasis’’ for initiating an for initiating an administrative disputeadministrative dispute

Improper application of lawImproper application of law The inexistence of competence The inexistence of competence

for bringing the actfor bringing the act Wrongful and incomplete Wrongful and incomplete

determining of the factual determining of the factual situationsituation

Phases in the administrative-Phases in the administrative-judicial procedurejudicial procedure Initiating the administrative dispute Initiating the administrative dispute

with a law-suit, containing: title, with a law-suit, containing: title, headquarters, name and surname, headquarters, name and surname, the address of the filer of the lawsuit; the address of the filer of the lawsuit; the administrative act against which the administrative act against which the lawsuit is being filed; reasons; the lawsuit is being filed; reasons; Findings of the lawsuit that imply the Findings of the lawsuit that imply the direction and scope of the requested direction and scope of the requested nullification;nullification; timeframe of 30 timeframe of 30 daysdays

Phases in the administrative-Phases in the administrative-judicial procedurejudicial procedure

Previous phasePrevious phase

А) А) Examining the formal elements Examining the formal elements of the lawsuitof the lawsuit..

BB) ) Decision for discarding the Decision for discarding the lawsuitlawsuit

CC) ) Decision for nullifying the act Decision for nullifying the act because of serious formal because of serious formal deficiencies deficiencies

Phases in the administrative-Phases in the administrative-judicial procedurejudicial procedure

Regular procedureRegular procedureА) А) Response to the lawsuit in a period Response to the lawsuit in a period

of 30 daysof 30 days

BB) ) Submission of all writings on the Submission of all writings on the request of the courtrequest of the court

CC) ) Closed hearing (judge Rapporteur Closed hearing (judge Rapporteur and two judges), or public hearing in and two judges), or public hearing in circumstances foreseen within the circumstances foreseen within the LADLAD

Judicial decisions brought in Judicial decisions brought in an administrative disputean administrative dispute

DecisionsDecisions JudgmentsJudgments

Judicial decisionsJudicial decisions Discarding the lawsuitDiscarding the lawsuit Halting the administrative-judicial Halting the administrative-judicial

decisiondecision::А) А) A waiver of the lawsuitA waiver of the lawsuitBB) ) A new administrative act was brought A new administrative act was brought

during the administrative procedureduring the administrative procedure Ban for further conduct of acts for an Ban for further conduct of acts for an

official who, in defiance with law official who, in defiance with law directly prevents or limits an individual directly prevents or limits an individual or legal entity towards realizing their or legal entity towards realizing their rights and freedoms, while on the other rights and freedoms, while on the other hand no other legal protection has hand no other legal protection has been provided.been provided.

Judicial decisionsJudicial decisions

Judgment for Judgment for annulment/Judgment in a dispute annulment/Judgment in a dispute on the basis of legality or a on the basis of legality or a nullifying judgment and judgment nullifying judgment and judgment on the basis of full jurisdictionon the basis of full jurisdiction

Judgment on the basis of a Judgment on the basis of a dispute on silence of the dispute on silence of the administrationadministration

Judgment of acceptance and Judgment of acceptance and Judgment of rejectionJudgment of rejection

APPEALAPPEAL

Since December 2010 High Administrative Court is a

second instance court Against the decisions of the

Administrative Court parties can submit an appeal within 15 days, through the AC to HAC, while in cases where an administrative agency seeks legal remedy, the agency submits it’s appeal through the State Attorney

Extraordinary legal remediesExtraordinary legal remedies

Repetition of the procedureRepetition of the procedure On the request (lawsuit) of an entity there On the request (lawsuit) of an entity there

is e repetition of the procedure, which has is e repetition of the procedure, which has already been finalized with a judgment or already been finalized with a judgment or decisiondecision

In a period of 30 days from the day the In a period of 30 days from the day the entity found out about the reason for the entity found out about the reason for the repetition, or from the day the decision was repetition, or from the day the decision was submitted (submitted (subjective deadlinesubjective deadline). A ). A repetition cannot be requested following repetition cannot be requested following the expiration of five years from the validity the expiration of five years from the validity of the decision (of the decision (objective deadlineobjective deadline).).

The decision on the basis of the procedure The decision on the basis of the procedure for repetition is brought by the court that for repetition is brought by the court that brought the judgment (either discarding brought the judgment (either discarding with a decision or accepting/rejecting with a with a decision or accepting/rejecting with a judgment)judgment)

Extraordinary legal remediesExtraordinary legal remediesReasons for a repetition of the procedureReasons for a repetition of the procedure::If the entity found new facts, or if it finds and acquires the If the entity found new facts, or if it finds and acquires the

possibility to use new evidence on the basis of which possibility to use new evidence on the basis of which the dispute would be solved in a more favorable the dispute would be solved in a more favorable manner for that entity, taking into account that these manner for that entity, taking into account that these facts would have been indicated or used in the facts would have been indicated or used in the previous procedureprevious procedure

If the decision of the court was brought as a result of a If the decision of the court was brought as a result of a criminal offence conducted by a judge or staffer in the criminal offence conducted by a judge or staffer in the court, or is obtained through fraud of the court, or is obtained through fraud of the representative or authorized representative of the representative or authorized representative of the entityentity

If the decision is based on a judicial decision that is later If the decision is based on a judicial decision that is later abolishedabolished

If the decision is brought on the basis of false evidenceIf the decision is brought on the basis of false evidenceIf the entity can use a previous decision brought in the If the entity can use a previous decision brought in the

same administrative disputesame administrative disputeIf an interested entity was not given the opportunity to If an interested entity was not given the opportunity to

take part in the administrative disputetake part in the administrative disputeOn the basis of a decision brought by the European Court On the basis of a decision brought by the European Court

for Human Rightsfor Human Rights