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(July 2007)
Jon Andersen, MA (Laws), Director of International Law at the office of the Danish Parliamentary Ombudsman talks to Adjust about the administrative justice scene in Denmark.
The Danish Constitution is based on the classic separation of powers. There is a legislator (the Monarch and Parliament jointly) who exercises legislative power; the courts which have the judicial power; and the Monarch (Government and the public administration) who has the executive power.
The Danish Constitution also refers to the Parliamentary Ombudsman and Local Government, cf. Sections 55 and 82 of the Danish Constitution. In constitutional law, Local Government is considered part of the public administration. The Parliamentary Ombudsman falls under the Danish Parliament though his function is less of a legislative than of a judicial nature.
The Constitution's picture of separated powers was shattered a long time ago. A number of bodies have emerged which cannot just be placed within the traditional administrative structure. Boards and councils are among these bodies. The common characteristics of councils and boards are that they are headed by an assembly of persons and not by a single person, and that they are, to a varying degree, independent of Government, Parliament or Local Government.
Some boards and councils, the so-called complaints boards, decide on complaints about administrative authorities. Other boards and councils, dispute boards, decide on disputes between private citizens. A number of boards make first instance decisions in relation to citizens, typically in the form of the approval of an activity or a product, and they are called approval boards. Some function as steering committees for specific administrative units; these are called administrative boards. And, finally, a number of boards and councils function as advisory bodies for other authorities. These advisory bodies are commonly called "councils".
The English expression "tribunal" is apparently used in relation to boards which make decisions vis-à-vis citizens. What we in Denmark call complaints boards, dispute boards and approval boards will, as far as can be seen, fall under that category.
A number of privately created boards function as dispute boards and have been approved by the public authorities. The approval implies that these boards substitute public boards. They have a natural affiliation with the public dispute boards, and are most commonly found within the field of consumer law.
Throughout the most recent 30 to 40 years there has been an effort to release the main governmental authorities from dealing with individual cases and instead refer such cases to administrative tribunals.
There is no total figure available for the number of administrative tribunals in Denmark. A search of the available information on public authorities shows that there are at least 130 different kinds of boards making decisions in relation to citizens but more no doubt exist. Some of the enumerated types of tribunals are regional or local and have therefore only been included once though there is more than one of the category in question. One example is the Hedging and Fencing board which decides on disputes between neighbours concerning hedges and fences. There is one such board in every one of the 98 municipalities. Another example is Children and Youth boards which decide on the removal of children from their parents. It may therefore be deduced that the total number of boards is much higher than 130.
The incidence of tribunals must be seen in conjunction with the fact that there are no administrative courts in Denmark. Some of the complaints boards and the dispute boards fulfil the functions which in other countries are performed by administrative courts. However, most of the Danish boards have the status of administrative bodies; they are included in the provisions of administrative law, are subject to the same control mechanisms as other administrative authorities, and do not have the same independence from Government and/or Parliament as do the courts.
It must be included in the overall picture that the decisions made by the administrative bodies may be brought before the ordinary courts and that the Parliamentary Ombudsman supervises the administration. Most boards are within the jurisdiction of both these supervisory bodies.
A board which makes binding decisions vis-à-vis citizens must be established under an act of Parliament. So each board will have been set up according to a statute.
When making their decisions, the boards must observe those provisions which directly regulate their activity and, in addition, the general administrative law requirements, such as the rule of law, the principle of proportionality and the avoidance of maladministration.
Unlike the UK, Danish legislation does not contain general rules on procedures that apply to all the boards. The legal regulation of the individual board is drafted in the relevant ministry in accordance with different traditions concerning establishment, composition, case processing procedure and administrative ranking. However, a certain legal unity has emerged due to the fact that the general administrative principles govern the boards and that they are supervised by both the courts and the ombudsman.
Most boards are subject to the general regulations on case processing in the public administration; these are first and foremost the Public Administration Act and the Access to Public Administration Files Act (the Freedom of Information Act). On the other hand, they are not subject to the case processing rules governing the courts, particularly the Administration of Justice Act. This implies that the tribunals are obliged to hear the parties before making a decision and to give reason for written decisions, just as the boards themselves have to elucidate the cases. The tribunals are also subject to codes on good administrative behaviour.
The special legislation that constitutes the tribunal frequently contains additional procedural provisions. These provisions often concern the internal decision-making activities of the board, such as the Chairman's authority to act on behalf of the board, summons to meetings, agenda, quorum and voting, but it may also comprise external case processing measures such as inspection or the access of citizens to address the board in person.
The tribunals enjoy a certain degree of independence from the rest of the public administration. The rule is that tribunal decisions cannot be appealed to other administrative authorities unless this is granted by statute. There are, however, quite a number of statutory provisions which, in relation to a specific tribunal, stipulate that the decisions may be appealed to another administrative body; often to another board.
Neither local councils nor ministers may give orders to a tribunal, with regard to the outcome of decisions, to institute or to terminate an investigation, or with regard to the processing of an individual case. Whether the political authority to which a board is connected may determine general guidelines for the board's case processing is uncertain.
Decisions made by a board may be appealed to the courts in the same way as decisions made by other administrative authorities, and in these cases the courts have the same right to review the decision as in other administrative cases.
Most tribunals are subject to the supervision of the Parliamentary Ombudsman. This means that the Ombudsman may, as a result of a complaint or on his own initiative, investigate cases which have been decided by a tribunal and assess whether the case processing and/or the decision is legal. Dispute boards and private appeal boards are not, however, encompassed by the Ombudsman's jurisdiction.
The members of the tribunal are usually appointed by the government or a local council. Some of the members, though, are appointed on the basis of the nominations of private associations, organisations, private groups or other public authorities. The appointment is normally for a limited period. In the case of some of the large appeal boards, however, the Chairman and the deputy chairmen are permanent civil servants. In those frequent cases where the chairman is not a permanent civil servant, a judge will often be appointed and he or she will thus have the chairmanship as a secondary job. Members of the tribunal are not normally ensured full personal independence. Those employees who serve the boards are usually employed by a ministry or by the local council in question. A few of the larger boards do, however, employ their own staff. With regard to their budget, the boards are controlled by those political authorities to whose jurisdiction they belong.
The National Social Appeals Board is the highest administrative appeals body in cases concerning social benefits. The board was set up in 1973 and makes decisions in approximately 19,000 complaints cases every year; it determines national common practice by. publishing fundamental decisions. In addition, the board prepares reports and compiles statistics on developments within the area of social matters to government, politicians, local councils and the public.
The National Social Appeals Board has its own staff which are organised in administrative offices, specialised offices and interdisciplinary offices. The specialised offices are headed by an Appeals Director. A number of appointed members are attached to the Board. Decisions in individual cases are made in meetings held with 2 Appeals Directors and 2 appointed members. The cases are prepared by the Board's staff.
The Board is subject to the general administrative legislation and its decisions may be appealed to the Parliamentary Ombudsman and be brought before the courts.
Created in 1983, the Refugee Board deals with complaints about decisions made by the Danish Immigration Service in cases concerning residence permits and the expulsion of aliens seeking asylum in Denmark. In 2002 the Board ruled in about 2,000 cases and in 2005 in a little over 700 cases.
The Board consists of a Chairman, 18 deputy chairmen and 41 other members. The Chairman and the deputy chairmen must be judges. The other members must be lawyers or serve in the department of the Ministry of Refugee, Immigration and Integration Affairs, though not in the secretariat of the Service. The Chairman is elected by the chairmanship. Each individual case is considered by the Chairman or a deputy chairman, a lawyer and a member of the Board who serves in the Ministry and the cases are mainly processed like a court trial. The Ministry supplies the Board with a secretariat that is a unit in the Ministry's Immigration Department.
The decisions of the Board may to a limited extent be appealed to the courts. The decisions of the Board may not be appealed to the Parliamentary Ombudsman but he may open an investigation of the Board's activities on his own initiative.
One of the oldest boards is the National Tax Tribunal which was created in 1938 to replace the National Supreme Tax Council which was established as early as 1912. The National Tax Tribunal is the highest administrative appeal board concerning taxes, duties, customs, property evaluations and debt recovery. Every year, the Tribunal considers 4,000 ? 6,000 tax and duty cases and about 500 cases concerning the evaluation of property.
The Tribunal consists of a President of the Court, three presiding judges and 32 court members. Twenty-one of the court members are appointed by the Minister of Taxation while 11 are appointed by the Danish parliament. The position of President is permanent. At least 11 of the court members must fulfil the requirements as judges and most of these members are in fact judges of the High Court, either the Western or the Eastern Division. Like the National Social Board of Appeal, the National Tax Tribunal has its own staff.
The National Tax Tribunal is considered an administrative body vis-à-vis the administrative legislation. Rulings made by the National Tax Tribunal may be brought before the courts and the Tribunal is fully within the jurisdiction of the Parliamentary Ombudsman.
The Nature Protection Board of Appeal is the highest authority in planning and nature protection cases and is the appeal body for decisions made in accordance with a number of laws on the regulation of property. The Board was created in 1993 and replaced another board which was established in 1917 but which had a much narrower authority than the Nature Protection Board of Appeal. The Board rules in about 2,000 cases annually.
The Board consists of a Chairman, who is appointed by the Minister for the Environment, 2 high court judges and a number of political members who are appointed by the political parties represented in the Finance Committee of the Danish parliament. At present, there are 7 politically appointed members, making the total number of the Board's members ten. The Board has a secretariat which is headed by the Board's Chairman with the assistance of deputy chairmen and an Administrative Director. The secretariat prepares the cases for the Board. Cases concerning matters of principle are decided at the board meetings but the majority of the cases are decided by the chairman or the deputy chairmen on behalf of the Board. The positions of Chairman and deputy chairman are permanent.
The Nature Protection Board of Appeal is considered an administrative body and is subject to the general administrative legislation. Decisions made by the Board may be brought before the courts and the Board is subject to the supervision of the Parliamentary Ombudsman.
The institution of the Danish Parliamentary Ombudsman was established in 1955, based on the Swedish model. The Ombudsman is appointed by the Danish parliament following each general election and may be dismissed if Parliament loses confidence in him. In practice, the Ombudsman is re-elected if he wishes to continue. There have only been four Ombudsmen since 1955, and the present incumbent has been in office for over 20 years. Parliament cannot interfere in the Ombudsman's discharge of his functions. With regard to budget, the Ombudsman's expenditure is charged to the budget of the Danish parliament but he engages and dismisses his own staff.
The Ombudsman considers cases concerning public administration, either as a consequence of a complaint or on his own initiative. Anybody may lodge a complaint directly with the Ombudsman; unlike the United Kingdom, one does not complain through a member of parliament. The Ombudsman himself decides whether to undertake an actual investigation, and there are certain technical limitations to the right of complaint; among other things, the complainant must have gone through the usual administrative recourse first.
The courts are not subject to the Ombudsman's jurisdiction. If a case is brought before the court, the Ombudsman will refrain from considering it, and of course he may not consider complaints about court rulings. Most boards, however, are considered administrative bodies and thereby subject to the Ombudsman's control. The Ombudsman is barred from considering the activities of Parliament and may therefore not investigate whether the acts of parliament are constitutional or in accordance with human rights.
The Parliamentary Ombudsman assesses the cases based on grounds of law and furthermore ensures that the administration has observed good administrative behaviour. The examination includes both the content of the decisions and the authorities' case processing. The Ombudsman has wide powers to obtain information but may not make binding decisions.
These are the core functions of the Parliamentary Ombudsman. In addition, he carries out inspections of prisons, social institutions, psychiatric wards and other institutions for dis-empowered individuals. He also has a duty to supervise the treatment by the public administration of the disabled or victims of torture.
The Parliamentary Ombudsman investigates about 4,200 cases annually. A considerable number of these cases involve administrative tribunals.
In the most important subject matters, Danish citizens may appeal individual decisions made by an administrative body to an administrative tribunal and, in a number of cases, even to a higher tribunal. Board decisions may normally be appealed to either the Parliamentary Ombudsman or to the courts. If the complainant chooses to appeal to the courts first, he or she will be barred from appealing to the Ombudsman. If the complainant lodges his complaint with the Ombudsman, he or she will still have the option of appealing to the courts ? not with a lawsuit against the Ombudsman but, on the contrary, against the board whose decision the Ombudsman has been unable to fault.
There are a large number of dissimilar boards. Unlike the United Kingdom, Denmark has not established a body or legislation to monitor the field more systematically. However, a certain degree of uniformity has been achieved by the fact that the boards are commonly considered to be fully comprised by the general provisions of administrative legislation and that they are under review by the courts and the Ombudsman.
The number of administrative tribunals is constantly growing and their competencies are still being expanded. In this sense, the system can be considered a success. The day to day impression is that especially the big tribunals fulfil a role as administrative courts. Some of the smaller boards, though, do not match the standards that should be expected of a court. And the large number of tribunals and the differences in legal framework make it difficult for citizens and their representatives to conduct their cases and for the public to a get a comprehensive view of the possibilities for complaint.
Jon Andersen MA (Laws) has worked at the office of the Danish Parliamentary Ombudsman since 1973, now as Director of International Law. He was also external lecturer of administrative law at the University of Copenhagen between 1975 and 2002, and he is still external examiner with the university. Jon Andersen has represented the office in various committees, at the moment the Public Disclosure Committee. He has authored and co-authored a number of books and articles on, administrative law, human rights, and the processing of personal data, and he is a member of the Danish Council of Ethics. He is also the liaison officer for the Danish ombudsman office vis-à-vis the office of the European Ombudsman.