GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
GLB: Administrative Law
Final Exam Notes — Weeks 8–14
Tilburg University · Global Law Programme · Spring 2026 · 620246-B-6 | Sources: §6.1 · §6.3 · Esser (Guest
Lecture) · Lindseth (2019)
WEEK 8 — Judicial Protection in Administrative Governance: A
Comparative Analysis
I. The Purpose and Legitimating Function of Judicial Protection
What is judicial protection and why does it exist?
At the foundation of every administrative law system lies a set of mechanisms designed to ensure that
public authorities act lawfully and that private individuals can obtain redress when they do not. Judicial
protection serves a dual function: it protects the legality of administrative action in the public interest,
and it offers a remedy to the individual whose rights or interests have been harmed. Without judicial
protection, administrative governance would be unconstrained — a serious threat to both the rule of
law and individual rights.
Three available remedies:
• Annulment: the court quashes an unfavourable administrative act, restoring the legal situation prior to
the unlawful decision. This is the characteristic remedy of objective systems (France) and restores
legality but not necessarily the individual's interest.
• Order to act: where the administration has failed or refused to act, the court compels the competent
authority to adopt a favourable measure or behaviour. This is characteristic of subjective systems
(Germany — Verpflichtungsklage).
• Compensation: damages awarded for harm caused by the unlawful exercise of the administrative
function. Requires establishing a causal link between the unlawful act and the harm suffered.
The legitimacy problem — why judicial review is structurally necessary (Lindseth, 2019):
Administrative governance has expanded dramatically over the last century in response to
urbanisation, industrialisation, the movement of people, goods and capital across borders,
environmental threats, and more recently digitalisation. A complex administrative sphere has
developed — ministerial departments, agencies, bureaus, commissions, tribunals, public corporations
— operating at subnational, national, supranational, and international levels, often transcending the
public-private divide. This administrative sphere today exercises enormous normative power:
rulemaking, enforcement, and adjudication.
And yet while this expansion cannot be denied, its legitimacy remains suspect. The problem is
structural: administrative governance is perceived as operating in tension with historic commitments to
democratic and constitutional self-government as represented in the classic trias politica —
legislatures, executives, and courts. The administrative sphere often enjoys significant autonomy, de
jure or de facto. Legal empowerment and expertise provide some legitimacy, but only incompletely.
Experience shows that diffuse and fragmented administrative governance cannot sustain itself without
'maintaining the connection' to the more robustly legitimate trias politica in some historically or legally
recognisable sense.
Mediated legitimacy (Lindseth): This is what Lindseth calls the 'mediated legitimacy' of
administrative governance — it cannot fully legitimise its own output autonomously; it requires
mediation through institutions that command broader democratic and constitutional authority.
Three complementary mechanisms of mediated legitimacy:
• Judicial review: independent legal control by judges — ensures administrative action complies with
law, protects rights, and maintains the rule of law.
GLB Administrative Law · Week 8 · p. 1
, GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
• Legislative oversight: hierarchical control by parliament — scrutiny of delegated legislation,
committee oversight, statutory amendments.
• Executive oversight: control by the political summit — ministerial responsibility, internal audits,
executive orders.
“Administrative governance's legitimacy remains suspect, despite its evident functional benefits
— because it is perceived as operating in tension with our historic commitments to democratic
and constitutional self-government.” — Esser, citing Lindseth (2019)
Key insight: it is only by working together that these three mechanisms provide the mediated
legitimacy that administrative governance needs to sustain itself durably. Together they help modern
societies reconcile the complex realities of administrative governance with deeply held commitments to
democratic and constitutional self-government inherited from the past.
II. Systems of Jurisdiction — The Foundational Comparative Divide
Comparative analysis has traditionally organised variation in judicial protection around a central
distinction: systems with a separate administrative jurisdiction versus systems with a common
jurisdiction. This is not merely an institutional choice — it reflects deeper normative commitments
about the relationship between the state, the administration, and the citizen. Each model embeds a
different answer to the question: is the administration subject to the same law as everyone else, or
does it require special courts that understand its special nature?
PHASE 1 — French Model: Distinct Administrative Jurisdiction (Late 18th – 19th Century)
The revolutionary origin and its principle:
The French model emerged from the revolutionary principle: juger l'administration, c'est encore
administrer — to judge the administration is still to administer. This principle, rooted in the
revolutionary understanding of the separation of powers, held that ordinary courts — belonging to the
judicial branch — could not interfere with the executive branch's activity. To allow ordinary courts to
review administrative action would be to allow the judicial power to intrude into the executive domain,
violating the separation of powers.
The Conseil d'État — origin, evolution, and ambivalence:
The Conseil d'État was created in 1799 initially as an advisory body to the monarchy and government
— advising on the management of the administration and dispensing justice. Over time, its
jurisdictional function gradually separated from its consultative role. This gradual evolution is why the
Conseil d'État has an ambivalent character that must be understood, not simply dismissed:
• On one hand — constructive: it contributes to the legal construction of administrative power and its
characteristics of authoritativeness and enforceability. It built the law of the administration through
case-by-case adjudication, developing autonomous principles (droit administratif) distinct from ordinary
civil law.
• On the other hand — protective: it plays an important role in defining the legal guarantees of those
administered, making the exercise of otherwise arbitrary power accountable through elaboration of
symptomatic defects in the administrative act. The ability to control legitimate exercise of administrative
power offered by the administrative judge is often superior to that offered by ordinary courts.
The fundamental criticism (Dicey): Albert Venn Dicey argued that removing disputes with public
administrations from common jurisdiction confirmed the radical incompatibility of droit administratif
with the English rule of law system. Such subtraction would be an unacceptable privilege for public
authorities and a violation of the principle of legal equality. The administrative judge, being part of the
executive power, would not be entirely neutral — more generous in recognising bureaucratic
prerogatives, more sensitive to the public interest. However, as §6.1 notes, this critical analysis is not
without foundation but is also not decisive — the ability to control administrative power of
administrative courts is often superior to that of ordinary courts.
GLB Administrative Law · Week 8 · p. 2
, GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
Scope of French administrative jurisdiction:
• puissance publique (public power): jurisdiction extends to actions involving the exercise of public
authority.
• service public (public service): extends to services provided in the public interest.
• Together: virtually all disputes involving public administrations, including contractual and
compensatory matters.
Spread: Belgium, Luxembourg, Greece, Portugal · Italy (modified) · Egypt, Turkey and other Northern
African and Middle Eastern states. Implementation was rarely integral; paths of diffusion were not
always linear.
Italy — the complexity of reception:
Italy's trajectory illustrates how the French model was received selectively, with major deviations. The
1865 Laws of Administrative Unification initially abolished administrative courts entirely and
assigned all disputes to ordinary judges — a Diceyan choice. However, gaps in effective protection
quickly emerged.
• 1889: creation of a litigation section within the Council of State, subsequently recognised as fully
judicial. Italy retained a crucial distinction from France:
– Subjective rights (diritti soggettivi) → ordinary courts.
– Legitimate interests (interessi legittimi) → administrative courts.
• 1971: establishment of Regional Administrative Courts (TAR) — two-tiered system: TAR as court of
first instance; Council of State as court of last resort.
E.g., Countries like Italy and Belgium were initially sensitive to the liberal positions of English
legal science, rejecting the French model, but at a certain point took a different path and opted
for the establishment of a separate administrative judge — because the common jurisdiction
model simply did not provide adequate protection.
PHASE 2 — Common Jurisdiction Systems (19th Century Onwards)
The foundational principle:
In common law countries — the United Kingdom, the United States, Australia, and New Zealand —
disputes with public administration are subject to the same courts that resolve disputes among
private individuals. Rooted in Dicey's rule of law: all individuals, including government officials,
subject to the same legal standards. Separate administrative courts were seen as an unacceptable
privilege.
The internal pressure toward specialisation:
Despite this philosophy, the practical demands of modern administrative governance generated an
internal pressure toward specialisation even within common law systems. As public functions
expanded, the need for specialised control re-emerged through administrative tribunals —
administrative bodies with para-jurisdictional functions.
Key limitation of administrative tribunals: they have specific expertise in their sector, but are not
placed in a position to develop general administrative law principles — given their exclusive
sectoral competence.
UK evolution — progressive specialisation:
• O'Reilly v Mackman [1983] UKHL 1: the House of Lords stated that where issues and claims of
public law are at stake, plaintiffs can only act through an application for judicial review. This created a
formal procedural distinction between public and private law claims. Prior verification of sufficient
interest and timeliness required.
• Administrative Court (2000): the former Divisional Court reconstituted as the Administrative Court, a
specialised section of the High Court.
GLB Administrative Law · Week 8 · p. 3
, GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
• 2007 reforms: administrative tribunals acquired a quasi-jurisdictional character — specialised
preliminary control on legitimacy in many sectors.
• Judicial Review and Courts Act 2022: courts given discretion on effects of quashing orders —
effects no longer necessarily retroactive. Court may: (1) suspend the order, giving the public body
time to amend; or (2) limit the order to prospective effect only — particularly useful when retroactive
annulment would cause huge costs and threaten legal certainty for other citizens. The Act also limits
JR of Upper Tribunal decisions — raises access to justice concerns.
PHASE 3 — German & Spanish Models: Specialised Courts Within the Ordinary Judiciary
The German model — a distinct intermediate position:
Germany's system occupies an intermediate position: judicial authority is unified — one judiciary, one
career order, one self-governing body — but within it, special administrative courts exist with power
to resolve disputes involving public administrations where the exercise of public power is at stake.
Structure — three levels:
• Administrative courts at federal state level (Verwaltungsgerichte): first instance within each Land.
• Higher administrative courts (Oberverwaltungsgerichte / Verwaltungsgerichtshöfe): second level
within each Land.
• Federal Administrative Court (Bundesverwaltungsgericht): third and final level, federal jurisdiction.
Key distinction from France: no admixture of advisory and judicial functions. German
administrative courts are purely judicial. All judges belong to the ordinary judiciary; none appointed by
the government. This addresses Dicey's criticism of the French model directly.
Art. 40 VwGO (1960 Code): administrative courts have jurisdiction over 'all public-law disputes of a
non-constitutional nature insofar as not explicitly allocated to another court by federal statute.' A
general clause — broad coverage with specific exceptions carved out by statute.
The Spanish model — specialised sections within ordinary courts:
Spain created specialised sections within its general courts at first and second levels. The Law on
Administrative Litigation of 1956 provided the right to judicial review of every administrative action
(except political acts of government) — with review based on criteria similar to those developed in
France, including misuse of power (desviación de poder). Ley 29/1998 definitively abolished
political act immunity.
III. The Dynamic of Convergence — 'Civilisation' of Administrative Jurisdiction
The core finding: the divide has narrowed significantly.
The functional and organisational differences between separate and common jurisdiction systems have
diminished considerably over time. This convergence has two directions: (1) separate jurisdiction
systems have become more 'judicial' in character; and (2) common law systems have moved toward
specialisation. The classic opposition between the two models is no longer the primary axis of analysis.
The 'civilisation' of administrative jurisdiction (§6.1) — what has changed in separate
jurisdiction systems:
• Advisory functions clearly separated from judicial ones — limiting conflicts of interest.
• Government appointing power limited; self-governing bodies analogous to those of the ordinary
judiciary created to protect independence.
• Broader remedies: administrative courts no longer exercise only traditional annulment power — also
precautionary, assessment, and condemnation powers.
• Procedural convergence: rules governing the administrative process increasingly mirror those of civil
procedure — sometimes directly integrated by civil procedure rules.
GLB Administrative Law · Week 8 · p. 4
GLB: Administrative Law
Final Exam Notes — Weeks 8–14
Tilburg University · Global Law Programme · Spring 2026 · 620246-B-6 | Sources: §6.1 · §6.3 · Esser (Guest
Lecture) · Lindseth (2019)
WEEK 8 — Judicial Protection in Administrative Governance: A
Comparative Analysis
I. The Purpose and Legitimating Function of Judicial Protection
What is judicial protection and why does it exist?
At the foundation of every administrative law system lies a set of mechanisms designed to ensure that
public authorities act lawfully and that private individuals can obtain redress when they do not. Judicial
protection serves a dual function: it protects the legality of administrative action in the public interest,
and it offers a remedy to the individual whose rights or interests have been harmed. Without judicial
protection, administrative governance would be unconstrained — a serious threat to both the rule of
law and individual rights.
Three available remedies:
• Annulment: the court quashes an unfavourable administrative act, restoring the legal situation prior to
the unlawful decision. This is the characteristic remedy of objective systems (France) and restores
legality but not necessarily the individual's interest.
• Order to act: where the administration has failed or refused to act, the court compels the competent
authority to adopt a favourable measure or behaviour. This is characteristic of subjective systems
(Germany — Verpflichtungsklage).
• Compensation: damages awarded for harm caused by the unlawful exercise of the administrative
function. Requires establishing a causal link between the unlawful act and the harm suffered.
The legitimacy problem — why judicial review is structurally necessary (Lindseth, 2019):
Administrative governance has expanded dramatically over the last century in response to
urbanisation, industrialisation, the movement of people, goods and capital across borders,
environmental threats, and more recently digitalisation. A complex administrative sphere has
developed — ministerial departments, agencies, bureaus, commissions, tribunals, public corporations
— operating at subnational, national, supranational, and international levels, often transcending the
public-private divide. This administrative sphere today exercises enormous normative power:
rulemaking, enforcement, and adjudication.
And yet while this expansion cannot be denied, its legitimacy remains suspect. The problem is
structural: administrative governance is perceived as operating in tension with historic commitments to
democratic and constitutional self-government as represented in the classic trias politica —
legislatures, executives, and courts. The administrative sphere often enjoys significant autonomy, de
jure or de facto. Legal empowerment and expertise provide some legitimacy, but only incompletely.
Experience shows that diffuse and fragmented administrative governance cannot sustain itself without
'maintaining the connection' to the more robustly legitimate trias politica in some historically or legally
recognisable sense.
Mediated legitimacy (Lindseth): This is what Lindseth calls the 'mediated legitimacy' of
administrative governance — it cannot fully legitimise its own output autonomously; it requires
mediation through institutions that command broader democratic and constitutional authority.
Three complementary mechanisms of mediated legitimacy:
• Judicial review: independent legal control by judges — ensures administrative action complies with
law, protects rights, and maintains the rule of law.
GLB Administrative Law · Week 8 · p. 1
, GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
• Legislative oversight: hierarchical control by parliament — scrutiny of delegated legislation,
committee oversight, statutory amendments.
• Executive oversight: control by the political summit — ministerial responsibility, internal audits,
executive orders.
“Administrative governance's legitimacy remains suspect, despite its evident functional benefits
— because it is perceived as operating in tension with our historic commitments to democratic
and constitutional self-government.” — Esser, citing Lindseth (2019)
Key insight: it is only by working together that these three mechanisms provide the mediated
legitimacy that administrative governance needs to sustain itself durably. Together they help modern
societies reconcile the complex realities of administrative governance with deeply held commitments to
democratic and constitutional self-government inherited from the past.
II. Systems of Jurisdiction — The Foundational Comparative Divide
Comparative analysis has traditionally organised variation in judicial protection around a central
distinction: systems with a separate administrative jurisdiction versus systems with a common
jurisdiction. This is not merely an institutional choice — it reflects deeper normative commitments
about the relationship between the state, the administration, and the citizen. Each model embeds a
different answer to the question: is the administration subject to the same law as everyone else, or
does it require special courts that understand its special nature?
PHASE 1 — French Model: Distinct Administrative Jurisdiction (Late 18th – 19th Century)
The revolutionary origin and its principle:
The French model emerged from the revolutionary principle: juger l'administration, c'est encore
administrer — to judge the administration is still to administer. This principle, rooted in the
revolutionary understanding of the separation of powers, held that ordinary courts — belonging to the
judicial branch — could not interfere with the executive branch's activity. To allow ordinary courts to
review administrative action would be to allow the judicial power to intrude into the executive domain,
violating the separation of powers.
The Conseil d'État — origin, evolution, and ambivalence:
The Conseil d'État was created in 1799 initially as an advisory body to the monarchy and government
— advising on the management of the administration and dispensing justice. Over time, its
jurisdictional function gradually separated from its consultative role. This gradual evolution is why the
Conseil d'État has an ambivalent character that must be understood, not simply dismissed:
• On one hand — constructive: it contributes to the legal construction of administrative power and its
characteristics of authoritativeness and enforceability. It built the law of the administration through
case-by-case adjudication, developing autonomous principles (droit administratif) distinct from ordinary
civil law.
• On the other hand — protective: it plays an important role in defining the legal guarantees of those
administered, making the exercise of otherwise arbitrary power accountable through elaboration of
symptomatic defects in the administrative act. The ability to control legitimate exercise of administrative
power offered by the administrative judge is often superior to that offered by ordinary courts.
The fundamental criticism (Dicey): Albert Venn Dicey argued that removing disputes with public
administrations from common jurisdiction confirmed the radical incompatibility of droit administratif
with the English rule of law system. Such subtraction would be an unacceptable privilege for public
authorities and a violation of the principle of legal equality. The administrative judge, being part of the
executive power, would not be entirely neutral — more generous in recognising bureaucratic
prerogatives, more sensitive to the public interest. However, as §6.1 notes, this critical analysis is not
without foundation but is also not decisive — the ability to control administrative power of
administrative courts is often superior to that of ordinary courts.
GLB Administrative Law · Week 8 · p. 2
, GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
Scope of French administrative jurisdiction:
• puissance publique (public power): jurisdiction extends to actions involving the exercise of public
authority.
• service public (public service): extends to services provided in the public interest.
• Together: virtually all disputes involving public administrations, including contractual and
compensatory matters.
Spread: Belgium, Luxembourg, Greece, Portugal · Italy (modified) · Egypt, Turkey and other Northern
African and Middle Eastern states. Implementation was rarely integral; paths of diffusion were not
always linear.
Italy — the complexity of reception:
Italy's trajectory illustrates how the French model was received selectively, with major deviations. The
1865 Laws of Administrative Unification initially abolished administrative courts entirely and
assigned all disputes to ordinary judges — a Diceyan choice. However, gaps in effective protection
quickly emerged.
• 1889: creation of a litigation section within the Council of State, subsequently recognised as fully
judicial. Italy retained a crucial distinction from France:
– Subjective rights (diritti soggettivi) → ordinary courts.
– Legitimate interests (interessi legittimi) → administrative courts.
• 1971: establishment of Regional Administrative Courts (TAR) — two-tiered system: TAR as court of
first instance; Council of State as court of last resort.
E.g., Countries like Italy and Belgium were initially sensitive to the liberal positions of English
legal science, rejecting the French model, but at a certain point took a different path and opted
for the establishment of a separate administrative judge — because the common jurisdiction
model simply did not provide adequate protection.
PHASE 2 — Common Jurisdiction Systems (19th Century Onwards)
The foundational principle:
In common law countries — the United Kingdom, the United States, Australia, and New Zealand —
disputes with public administration are subject to the same courts that resolve disputes among
private individuals. Rooted in Dicey's rule of law: all individuals, including government officials,
subject to the same legal standards. Separate administrative courts were seen as an unacceptable
privilege.
The internal pressure toward specialisation:
Despite this philosophy, the practical demands of modern administrative governance generated an
internal pressure toward specialisation even within common law systems. As public functions
expanded, the need for specialised control re-emerged through administrative tribunals —
administrative bodies with para-jurisdictional functions.
Key limitation of administrative tribunals: they have specific expertise in their sector, but are not
placed in a position to develop general administrative law principles — given their exclusive
sectoral competence.
UK evolution — progressive specialisation:
• O'Reilly v Mackman [1983] UKHL 1: the House of Lords stated that where issues and claims of
public law are at stake, plaintiffs can only act through an application for judicial review. This created a
formal procedural distinction between public and private law claims. Prior verification of sufficient
interest and timeliness required.
• Administrative Court (2000): the former Divisional Court reconstituted as the Administrative Court, a
specialised section of the High Court.
GLB Administrative Law · Week 8 · p. 3
, GLB Administrative Law | Week 8: Judicial Protection | Tilburg University · Spring 2026
• 2007 reforms: administrative tribunals acquired a quasi-jurisdictional character — specialised
preliminary control on legitimacy in many sectors.
• Judicial Review and Courts Act 2022: courts given discretion on effects of quashing orders —
effects no longer necessarily retroactive. Court may: (1) suspend the order, giving the public body
time to amend; or (2) limit the order to prospective effect only — particularly useful when retroactive
annulment would cause huge costs and threaten legal certainty for other citizens. The Act also limits
JR of Upper Tribunal decisions — raises access to justice concerns.
PHASE 3 — German & Spanish Models: Specialised Courts Within the Ordinary Judiciary
The German model — a distinct intermediate position:
Germany's system occupies an intermediate position: judicial authority is unified — one judiciary, one
career order, one self-governing body — but within it, special administrative courts exist with power
to resolve disputes involving public administrations where the exercise of public power is at stake.
Structure — three levels:
• Administrative courts at federal state level (Verwaltungsgerichte): first instance within each Land.
• Higher administrative courts (Oberverwaltungsgerichte / Verwaltungsgerichtshöfe): second level
within each Land.
• Federal Administrative Court (Bundesverwaltungsgericht): third and final level, federal jurisdiction.
Key distinction from France: no admixture of advisory and judicial functions. German
administrative courts are purely judicial. All judges belong to the ordinary judiciary; none appointed by
the government. This addresses Dicey's criticism of the French model directly.
Art. 40 VwGO (1960 Code): administrative courts have jurisdiction over 'all public-law disputes of a
non-constitutional nature insofar as not explicitly allocated to another court by federal statute.' A
general clause — broad coverage with specific exceptions carved out by statute.
The Spanish model — specialised sections within ordinary courts:
Spain created specialised sections within its general courts at first and second levels. The Law on
Administrative Litigation of 1956 provided the right to judicial review of every administrative action
(except political acts of government) — with review based on criteria similar to those developed in
France, including misuse of power (desviación de poder). Ley 29/1998 definitively abolished
political act immunity.
III. The Dynamic of Convergence — 'Civilisation' of Administrative Jurisdiction
The core finding: the divide has narrowed significantly.
The functional and organisational differences between separate and common jurisdiction systems have
diminished considerably over time. This convergence has two directions: (1) separate jurisdiction
systems have become more 'judicial' in character; and (2) common law systems have moved toward
specialisation. The classic opposition between the two models is no longer the primary axis of analysis.
The 'civilisation' of administrative jurisdiction (§6.1) — what has changed in separate
jurisdiction systems:
• Advisory functions clearly separated from judicial ones — limiting conflicts of interest.
• Government appointing power limited; self-governing bodies analogous to those of the ordinary
judiciary created to protect independence.
• Broader remedies: administrative courts no longer exercise only traditional annulment power — also
precautionary, assessment, and condemnation powers.
• Procedural convergence: rules governing the administrative process increasingly mirror those of civil
procedure — sometimes directly integrated by civil procedure rules.
GLB Administrative Law · Week 8 · p. 4
