#14843 - Legitimate Expectation Comparison - Comparative Public Law

Legitimate Expectations

Comparison — Schonberg

Generally

• UK legitimate expectations EU legitimate expectations

  • Narrow conception of objectively reasonable expectations

  • Deference to administration’s balancing of public<>individual interests

• In all 3 systems, very little protection for ultra vires representations

  • In EU & France, reasonable protection for ultra vires {4} decisions but none for {1-3} representations

  • In UK, essentially similar protections for decisions & representations, but very weak

• French system doesn’t have doctrine of LE but fills with equality, damages, and other doctrines

  • But patchwork of doctrines still produces unfairness

  • Seems like resistance to ‘balancing’ or discretionary approaches by the court — but given searching review of fact & law, seems unjustified

Suggestions for reform

—lawful representations

• UK — replace Wednesbury unreasonableness with proportionality approach to determining whether has been abuse of power

  • Raises some issues with parliamentary sovereignty in UK

    • Also argument from judicial competence — judges in UK recruited from the bar instead of from civil servants in France — not as well placed to make policy determinations?

    • BUT civil servants aren’t elected either — at least judges have some democratic legitimacy via appointment

  • Coughlan approach of balancing is more suitable than proportionality (requires identification of suitability, necessity & overall balance)

—ultra vires representations

• Representations shouldn’t be disregarded simply because ultra vires

  • IE legality is countervailed by other considerations

  • Balancing approach of EU re ultra vires decisions could be more broadly applied

• Consider utilisation of damages as in France as alternative

UK

Historical context of deference

• Constitutional source of deference — parliamentary sovereignty

• Representations {1}–{3} historically governed by various principles: estoppel, Wednesbury unreasonableness, abuse of process, and now legitimate expectations (substantive and then procedural)

  • Only relatively recently that debate resolved on whether LE has a place, whether extends to substantive LEs, and if so whether substantive LE is independent from or just a head of unreasonableness

• Traditionally characterised by level of deference to administrative administration

  • Not for the courts to balance policy

  • Manifestations

    • Narrow — LE just a head of W unreasonableness — Hargreaves (change in prisoners release policy)

    • Less narrow — will only interfere if disappointing expectation amounts to abuse of power — Preston (IRC resiling from interest relief deal = abuse of power)

• Only post-Coughlan that willing to take broader view

  • Hamble Fisheries rejected as ‘heresy’ in Hargreaves; but Hargreaves distinguished in Coughlan as general shift in policy

• Still manifested in reluctance to venture into {4} general shifts in policy

Other means of solving problem

• Abuse of process — criminal prosecution may be rejected if clearly unfair eg because of delay or if prosecution represented that would not proceed

  • Dean (youth treated as witness, assured would not be prosecuted, assisted police — then prosecuted abuse of process)

France

{4} Decisions <> {1-3} Representations

• Decision = acte administrative — binding subject to principle of intangibilité

  • Binding if lawful & constitutive of rights (créatrice de droits)

  • If unlawful & constitutive, binding once 2-month time-limit passes

• Representation = faits juridiques (legally relevant facts)

  • Administration may have to compensate loss, but not obliged to honour representations

  • Similar justification to UK — flexibility of executive & legality of government: Compagnie franco-algérienne

  • EG Bouveret (quit job in reliance on representation of employment liable to damages but not binding)

• Doctrine of LE directly rejected — Rouquette (1999)

  • Creative inferior TAs had attempted but stamped out by CE

• Subject to general principle of equal treatment (égalité de traitement)

  • Applies mainly to {2} departure from policy in particular case

Contextual reasons for rejecting LE

• Freedom of administration deeply embedded — recognised itself as a principe generaux — LE would be inconsistent

• French public law prefers defined rules

  • Akin to codification

  • In relation to {4} injustice created by ultra vires rule restricted by time limit rather than discretionary balancing

  • Courts don’t give long reasoned judgments that lend themselves to balancing factors

• Other methods of compensating for lack of LEs

  • Statutory provisions in tax & planning

  • Generous principles of administrative liability to damages (notably absent in UK context) — individuals will be compensated so don’t need to enforce LE

• French droit administratif = independently developed by courts

  • Unusual for France

  • Resistant to external influence by EU/UK

Rejection of doctrine of confiance légitime

• Principle recognised by TA Strasbourg in Entreprise Transports Freymuth (1994)

  • F imported refuse from Germany

  • 1975 law provided for prohibition of refuse by agreement between States

  • 1990 regulation introduced need for authorisation for import – but did not prohibit any particular category

  • F obtained authorisation

  • 1992 regulation prohibited importation of certain categories of refuse

    • Exception allowed importation provided there was a scheme for sale & disposal, but no such scheme in place at the time

  • F claimed loss of 1/3 of profits & sought damages

HELD

• TA — Breach of legitimate expectation – that 1990 regulation would not be suddenly changed with immediate effect & without transitional provisions

• Nancy CAA — did not “destroy any hope” or any “promise” but merely ended danger to environment for reasons of public interest — but didn’t disavow principle in whole

• Stamped out by CE in Rouquette (1999) (social security change — LE arose only if implementing EU law — no reference to such a principle in French law)

Other cases addressing same problem

• Administrative bodies confined by own policies: Societe Michel Faure (agency said would only take certain measures in consultation with committee acting illegally if without consultation)

  • = Yabbicon v King (UK, 1899)

  • Cf. Ville de Limoges (Planning authority may permit derogations from its development plan on a balance of competing interests)

• Administrative bodies bound to respect individual rights created by previous decisions: Credit Foncier

  • Even if those decisions illegal at the time, if they have later become immune from attack

  • Similar to legitimate expectation?

EU

Conceptually simpler

• Established principles of

  • Legitimate expectation

    • Developed in cases of actual decision

    • Extended to representations in Chatillon (1966) (High Authority denied right to make deductions for ferrous scrap — argued delegated decision had been made that material was scrap & later revoked no formal decision because delegated body no longer had power — but could still derive some guarantees — but not made out on the facts)

  • Equal treatment

  • Irrevocability of {4} individualised & finalised decisions

• Content of LE doctrine

  • Whether expectation objectively reasonable — Nature of representations, individual’s knowledge, regulatory context

  • Balance policy reasons against harm to determine whether ‘legitimate’

• BUT generally courts do not substitute judgment as to balancing harm<>policy

  • Consequences is that rarely upheld in practice

  • <> makes narrower than UK principle, like old deferential approach

• Institutional context — reasons for not substituting judgment for its institutions?

• EU not a State

{1} General shift in policy

• Administration mustn’t be forced to stagnate

• BUT sudden changes can offend LE — argument for regulating manner of change

  • Transitional provisions

  • Advance warning

UK — doubtful whether LE can arise

• Some statements of principle suggesting that there must be ‘adequate & clear advance notification’

• BUT in practice difficult to establish

  • Hargreaves (policy on prisoner’s leave varied) — pre-Coughlan but distinguished in that case on that basis, so reaffirms position

• Sedley LJ in justifying existence of LE doctrine — won’t stagnate administration because no individual can have LE that administration will stagnate for them

• More or less ruled out by Niazi

France — no remedy

Principle of mutabilité

• Administration has absolute power to change policy

• Syndicat national de la meunerie a siegle (prices for rye fixed in 1947, said would apply til 1952 — less favourable policy adopted in 1950 — producers had relied on policy irrelevant, can change freely — no remedy)

  • Query whether this is good principle

• Focus on rights — no substantive legitimate expectation falling short of right — must show that policy has created a right

Principle of “legal certainty”

• Principle of legal certainty: KPMG (2006) (CE invalidating whole code regulating company auditors — ethics code affecting certain contractual obligations — no transitional provision illegal — annulled)

  • Part of a shift to be more receptive to comparative law arguments

EU

• CNTA (regulation provided for payment of compensation on exports — C obtained export permit C had LE that would not change policy & abolish compensation)

• Even where LE arises from combination of policies

  • Mulder (problem with overproduction of milk — Under Common Agricultural Policy, M stopped sales for 5 years and obtained premiums — during that time, quotas changed to be function of previous years — meant M’s quota was 0 LE not...