The Supreme Administrative Court stated that as regards the administrative proceeding, there are no provisions – with the exception of the cases in which an individual party’s litigation costs can be compensated by the state in accordance with Chapter 43 of the Tax Procedures Act (2011:1244) – regarding compensation for litigation costs. It has thus been the case in administrative proceedings that an individual has not been able to receive compensation for their litigation costs within the scope of the administrative case. Notwithstanding the fact that the question has come up on a number of occasions, the legislature has found no reason to alter the administrative proceedings regime in this respect.
According to the Supreme Administrative Court the administrative proceeding is formulated such that it regularly fulfils the requirements which may be imposed on a trial in order to be deemed fair. However, it cannot be excluded that, in exceptional cases, there may be situations in which the circumstances are such that it would not be compatible with the right to a fair trial if an individual party cannot obtain compensation for legitimate litigation costs. In such cases, the individual is referred requesting compensation for their litigation costs in administrative cases by means of the rules regarding damages. It is apparent from the case law of the European Court of Human Rights that such a regime is compatible with Article 6.1 of the ECHR. The provisions in Chapter 2, section 11, second paragraph of the Instrument of Government and Article 47 of the Charter of Fundamental Rights of the European Union may be deemed to have the same purport. The right to a fair trial thus does not entail that compensation for litigation costs must be granted in the administrative case itself.
The Supreme Administrative Court also stated that to the extent it is nonetheless deemed to be critical to create a possibility for the administrative courts to award individuals compensation for their litigation costs, questions of both principle and practice arise which require considerations which should befall the legislature.
Finally, the Supreme Administrative Court stated that in its case law to date, the Supreme Administrative Court has alternately rejected and disallowed claims for compensation for litigation costs. Since no substantive examination is to be carried out of such claims, they shall continue to be disallowed.
Read the judgment here: