Sensitive issues that arise and may arise In the administrative judiciary there are a number of ‘sensitive issues’ that have arisen or may arise. Those sensitive issues arise, both in terms of volume and in terms of control mode.
A question related to ‘sensitive issues’ that requires a direct answer is: how is it possible, on the one hand, to ‘ensure’ effective judicial protection and, on the other hand, to ‘respect’ the needs for obtaining (issuing) efficient decisions in administrative proceedings?
There are a number of instruments that can help in this view and for which the theory of administrative justice speaks.
First, the administrative courts need to be “given the clearest possible powers” and this fact is seen with great interest, both for the courts and for the application of the principle of “separation of powers”.
The theory also points to another instrument: the ‘possibility of applying consultative procedures’ in the administration’s relations with the courts. Indeed, there is a possibility that public bodies ‘may ask administrative courts to interpret laws and regulations’ that may prevent them from making illegal decisions. However, this possibility may be accompanied by two remarks that need to be considered. First, care must be taken that ‘the advice given by the court to public bodies can be considered, in a way, a‘ preliminary judgment ’and, second, it can be considered a‘ privilege ’to public bodies.
Among these instruments, the literature also deals with the postponement of the effects of the judgment, the postponement of the effects of court practice, etc.
How should instruments be understood?
Nothing more than the ‘common goal’ of public bodies and administrative courts in ‘making the best legal decisions’. In this regard, the administrative judiciary should be understood as ‘a stage’ in the decision-making process and as an ‘instrument for justifying the action of the administration’. Therefore, the conclusion becomes clear: separate actions should not be seen as contradictory, but as complementary.
Judicial review should be understood as ‘a means of improving the rationality and quality of administrative decision-making’. When a court calls an administrative decision ‘lawful’, this fact automatically increases the ‘legitimacy of the administrative body’. The opposite can also happen. If the opposite happens, the public body should ‘feel grateful’ that the bad decision has been overturned.
