The last ordinary route after a dismissed appeal
Once the Ministry dismisses the appeal, an administrative dispute is the last ordinary route. It is commenced by an action before the competent administrative court, and the dispute is deemed commenced on the day the action is filed.
The deadline
Thirty days from service of the Ministry’s decision. Three departures from that rule deserve attention:
- if the decision was not served in accordance with the rules on service, the action may be filed within 90 days of the day the party learned or could have learned of the decision, and the action must make it plausible that it was filed in time
- if the instruction on legal remedies states a longer period, that period applies
- if the instruction wrongly states that no action is permitted, the period is 90 days from learning of the possibility of filing
Where the authority is silent — that is, where no decision has been issued at all — the action is filed no earlier than eight days after the prescribed period expires. An action filed earlier is premature.
What the action may seek
Besides annulment of the decision, the action may also seek that the court decide on the right itself. This is the claim to make in these cases, because it determines whether the procedure returns to the start after judgment. The action may also seek the issuance of a decision not issued within the prescribed period, and, alongside the main claim, damages caused by the defendant; a claim for damages must be contained in the action.
The action must state the court, the details of the claimant and the defendant, the decision challenged, the claim, the scope of the challenge, the grounds, the facts and evidence, and the signature. The challenged decision is attached and, in an action for failure to decide, also proof of the moment the application was submitted.
With or without a hearing
The principle is an oral, direct and public hearing; the court may give judgment without one only in the cases prescribed by law. Two matter in practice here: where the claimant challenges only the application of the law, the facts are undisputed and the parties do not expressly request a hearing; and where the court finds from the case file that the decision is unlawful and the defendant, in its reply, requests neither a hearing nor the taking of evidence.
Where the dispute concerns the findings and opinion, the facts are as a rule not undisputed — so requesting a hearing and expert evidence is part of the strategy, not a formality.
What the court may decide
If it finds the decision unlawful, the court upholds the claim, annuls the decision and decides the matter itself — except where it cannot do so given the nature of the matter or where the authority decided at its discretion. The same rule applies to silence: the court upholds the claim and decides the matter itself, and where it cannot, orders the defendant to issue a decision within a reasonable time.
In inclusion allowance cases that distinction is decisive for how long everything takes. Where the decision requires expert evaluation the court does not have, practice most often orders the authority to decide within a set time — and the case returns to the authority. It is therefore advisable that the evidence supporting a different support level be in the court file, and not only in the repeated administrative procedure.
Appeal against the judgment, and costs
No appeal is permitted against a judgment annulling the decision and remitting the case for the first time, nor against a judgment ordering the issuance of a decision not issued in time. Exception: an appeal is permitted against a judgment remitting the case for the first time where the reasoning orders a decision of specified content.
A party that loses entirely bears all the costs; on partial success the court may order each party to bear its own or apportion costs in proportion to success. This is also worth knowing: if the dispute is discontinued after the defendant complies with the claim, the claimant is entitled to the costs of the dispute.
For an assessment of the prospects of an administrative dispute and for drafting the action, contact the office; the 30-day deadline cannot be extended.