Leave to appeal - yes or no?
In order for the Supreme Administrative Court to examine a case, the Court must grant leave to appeal – i.e. give permission to appeal – in the case. While the Supreme Administrative Court receives approximately 7,000 cases per year, leave to appeal is only granted in 1–2 percent of the cases. So, what forms the basis of the Court’s determination of whether or not to grant leave to appeal in the case?
When a case is received by the Court, it is registered by one of the Court’s three case preparation divisions, each of which is specialised in various types of cases. A judge referee then carries out an initial assessment and makes a preliminary determination of whether the case is appropriate for leave to appeal. In the event the judge referee determines that leave to appeal might be appropriate, the case is presented to three Justices. If not, the case is presented to one Justice. In this latter case, the Justice can determine whether the matter is to be presented to three Justices.
Need for guidance (precedence)
The Supreme Administrative Court is a precedential court, which means that the Court’s task is to provide guidance on legal issues on which government authorities and administrative courts and administrative courts of appeal throughout the country require direction. This is distinct from the administrative courts and administrative courts of appeal which must determine whether the cases received by them have the right outcome.
A central consideration in a decision to grant leave to appeal in a case is whether or not there is a need for legal precedent regarding the question involved in the case. Thus, the question in the case must concern a legal issue on which government authorities and courts require guidance.
The Supreme Administrative Court may have a basis for granting leave to appeal due to the lack of precedent or an inconsistency in the case law of the administrative courts of appeal because the various courts have reached different conclusions regarding a certain issue. On the other hand, pending new legislation on the question speaks against granting leave to appeal since the value of a precedent in such cases quickly becomes obsolete.
The task of the Supreme Administrative Court of providing guidance on legal issues may make the question of which evidentiary requirements are to be generally applied in a certain type of case interesting for precedential purposes but not, however, the question of whether an individual person or government authority meets the evidentiary requirement in a particular case.
In order for a ruling to provide clear guidance, the case itself must be suitable as precedent. The fact that a case involves unclear circumstances or evidentiary questions thus also indicates that leave to appeal should not be granted in the case.
As a rule, new facts or new evidence are not matters that can be addressed by a precedential court.
Extraordinary reasons
In addition to situations in which guidance is necessary on a certain question, the Supreme Administrative Court may also grant leave to appeal in other cases, namely when there are extraordinary reasons for doing so. Extraordinary reasons for granting leave to appeal may be that the outcome in the administrative court of appeal is due to a grave omission or a mistake which is not related to the legal examination. This may involve, for example, situations in which the court has applied the wrong law or a decision has been taken by someone who does not have the authority to do so. Leave to appeal based on extraordinary reasons is so rare that it is granted only a few times per year.
If leave to appeal is not granted
A decision to not grant leave to appeal may not be appealed. By virtue of a decision of the Supreme Administrative Court to not grant leave to appeal, the case is finally decided and the ruling of the lower court is then applicable. A decision that the Supreme Administrative Court will not grant leave to appeal is not to be interpreted as such that the Supreme Administrative Court or the Justices who signed the ruling agree with the assessment of the lower courts.
Information to provide in an appeal
- Your name, address, personal identification number or organisation/company registration number;
- A telephone number;
- An email address; and
- The judgment or decision you are appealing, i.e. the administrative court of appeal's case number and the date of the judgment/decision.
In the event the case requires leave to appeal, you must explain why you believe the Court should grant it.
You should also explain in your appeal in what way you want the Court to change the ruling of the administrative court of appeal and also state any circumstances of which you believe the Court should be aware and take into account.
You do not need to send documents to the Court which are already in the case file of the administrative court of appeal or the administrative court.
If you send new documents to the Court, you should keep in mind that special reasons must exist in order for the Court to consider evidence and circumstances which are being presented for the first time in the Supreme Administrative Court, meaning the information was not received by the lower courts.
You can read more about the procedure in the appendix to the ruling of the administrative court of appeal.
Where to send your appeal
The appeal should be in writing and always sent to the administrative court of appeal which rendered the judgment or decision. The administrative court of appeal will then determine whether your appeal was received on time and, in such case, forward it to the Supreme Administrative Court.
Deadline to appeal
Be sure to check the deadline for appeal. The deadline is stated in the ruling of the administrative court of appeal.
Notice to public legal counsels
Public legal counsels who request leave to appeal from the Supreme Administrative Court should submit a statement of costs and fees together with the appeal. The Court will not remind public legal counsels regarding the statement of costs and fees before the issue of leave to appeal is decided (refering to the decision of the Supreme Court of 9 June 2014 in case no B 923-14). Accordingly, public legal counsels who omit to submit a statement of costs and fees before this issue is decided might not receive compensation in the event leave to appeal is not granted.