The "current interest" requirement in annulment appeals before the Council of State is a hot topic.
During the past year, the General Assembly of the Council of State has pronounced two judgments regarding compensation for damage which raised some issues concerning the Council's traditional case law on the "current interest" requirement. This requires the applicant to demonstrate an interest in the annulment of the contested act, not only at the time he lodges his appeal before the Council, but also at the time the Council pronounces judgment.
One month later, the European Court of Human Rights intervened in the discussion, finding that, in certain cases, the Council of State's traditional case law disregards the right of access to court.
Following these judgments, the General Assembly of the Council of State took another step in the development of the concept of "current interest" on 15 January 2019. This step represents an easing of the Council's traditional case law.
An applicant before the Council of State is required to demonstrate an interest in the annulment appeal in order for the appeal to be admissible, as is also the case for any claimant in a civil dispute. According to the Council of State, this interest should be justified and legitimate, certain, personal and direct, and also current. Unlike the civil courts, the Council of State assesses the interest not only at the time the appeal is lodged but also at the time it pronounces judgment. Following the Council's traditional case law, the applicant only demonstrates a current interest if this interest still exists at the time of the judgment. Loss of such interest during the course of the annulment proceedings inevitably leads to the inadmissibility of the annulment appeal.
This case law has been called into question, initially due to the Council's own decisions regarding that other hot topic, compensation for damage. In two judgments dated 21 June 2018, the General Assembly of the Council of State ruled that the Council is obliged to examine pleas of illegality with a view to awarding the claimed compensation, provided that the applicant demonstrated an interest in the annulment at the time he lodged the appeal, even if he lost that interest during the annulment proceedings (see Eubelius Spotlights September 2018). This approach could lead to the peculiar situation where the Council establishes the illegality of the contested act, does not annul that act because the applicant has lost his interest during the annulment proceeding, but nevertheless awards compensation for damage. In other words, the Council would define the contested act as illegal, yet the act would continue to exist. Furthermore, in principle, the administration involved could continue to take action based on the said illegal act. This situation is unsatisfactory. The legislator failed to devote attention to this problem when establishing the Council's competence to award compensation for damage. The Council of State did not clarify how this problem could be resolved.
Shortly thereafter, on 17 July 2018, the European Court of Human Rights took a position on the Council's traditional case law regarding the current interest requirement. This judgment was directly occasioned by a judgment of the Council of State which ruled on an annulment appeal against a decision by SELOR. SELOR declared that the applicant had failed in a comparative competition, and therefore did not admit him to the reserve list for future recruitment. The Council ruled that the applicant had lost his current interest during the annulment proceedings because the validity period for the reserve list had expired. The European Court of Human Rights held that this ruling was overly formalistic and therefore in breach of the right of access to court, as addressed by Article 6 of the European Convention on Human Rights. The Court took into account the fact that the duration of the proceedings before the Council of State had caused the applicant's loss of current interest, that the applicant was unable to remedy this, and that the Council did not take this element into account in its assessment of the interest.
On 15 January 2019, the General Assembly of the Council of State ruled on the decision of a school to close down one of its places of establishment. The applicant was the father of a pupil who used to attend school at that location. He was also a member of the school council, and it was in this capacity that he contested the decision to close down the place of establishment. The Council of State held that the applicant no longer had the capacity of a member of the school council at the time his appeal was being handled by the Court, because he had enrolled his son in another school following the contested closing down of the place of establishment.
According to the Council's traditional case law, this would have meant the loss of a current interest for the applicant and thus an inadmissible annulment appeal. However, the Council ruled, with explicit reference to the aforementioned judgment of the European Court of Human Rights: "If one were to decide that the applicant would lose his capacity or interest during the ongoing proceedings, this loss would not be caused by an action he committed himself or an omission to act, which action or omission is imputable to him." The Council ruled that the applicant did not willingly lose the capacity of a member of the school council, but did so precisely due to the contested act. The applicant could not be expected to enrol his son in another place of establishment of the same school, against his own educational choice, merely in order to safeguard his capacity as an applicant. The decision to deny the applicant's interest under these circumstances would impair his right of access to court in a disproportionate manner, according to the Council.
This judgment eases the Council's traditional case law on the requirement for a current interest. The lack of an interest at the time of the judgment will no longer render the annulment appeal inadmissible ipso facto. That will only be the case if the loss of interest is the result of an action performed by the applicant himself or his omission to act and if that action or omission is personally imputable to him. With this case law, the Council has adapted to the guidelines set out by the European Court of Human Rights.
The Council's decision also provides an answer to the questions raised by the recent case law regarding compensation for damage. As the requirement for a current interest has been loosened, the loss of an interest during the proceedings will not automatically prevent the Council from annulling the contested act. In other words: the granting of compensation for damage by the Council of State will always accompany an annulment of the contested act, unless the applicant has lost his interest during the proceedings due to his own action or omission to act, personally imputable to him. This will lead to more logical case law, with a more satisfactory result
The question arises whether the concept "personally imputable" should be interpreted broadly or strictly. For example, what about a legal entity that contests the awarding of a public contract to another candidate and is declared bankrupt during the proceedings, or a public servant who contests the appointment of another candidate and takes voluntary early retirement during the proceedings? Are these actions "personally imputable" to the applicant, and will the Council consider that they lead to the loss of the applicant's interest? This appears to be disputable, to say the least, and the Council's future judgments will have to provide further guidance on this matter.