NEWSLETTER Nº 8: ALMEP AND THE FRENCH PRECEDENT ON ADMINISTRATIVE MEDIATION

2022-04-28 Opinion articles

The Draft Bill on Procedural Efficiency of the Public Justice Service has been mentioned in some of my previous Newsletters. Thus, in the last one, number 7, I highlighted the unanimity in favour of ‘mediation to resolve conflicts with the Administration of Justice, in administrative proceedings, and even when the conflict has been brought before the courts’, among the twelve senior officials from different Administrations, all prominent jurists, who were submitted to an interesting questionnaire prepared by Dr. María Avilés, a lawyer. I then suggested, for my part, ‘to study for Spain brief regulations along similar lines to those followed in France’.

I also referred to this in my subsequent work, published in issue 10 of the digital magazine, “La Ley. Mediación y Arbitraje”, directed by Professor José Carlos Fernández Rozas, and published by Wolters Kluwer. At the end of my considerations, entitled “From Mediation to the reform of Justice”, I insisted on studying the case of France, and to see how it could help us to urgently confirm the legal nature of this figure in Spain, sometimes wrongly denied by many on the basis of the official promise, always postponed, of enacting ad hoc regulations.

Several months have already passed, enough time for the Council of State to have finalised its Opinion and for the Government to be on the point of submitting it to Parliament in the form of a Draft Law. According to what the Secretary of State for Justice declared in his recent appearance before the competent Commission on 22 March, this would be done “in less than a month”.

The debate on the lengthy text between the responsible parliamentarians of all parties will soon arrive and will undoubtedly be prolonged given the importance of this text within the major reforms announced in the current government’s “Justice 2030” Plan.

There will therefore be time for hundreds, if not thousands, of amendments. And I hope that the following considerations will help some of them to be inspired by the French model, which I have praised.

The aim would be for us to take advantage of the future Law so that the Administration, in all its manifestations, is definitively aware that administrative mediation is fully recognised in our legal system at the service of the administered, despite the fact that it is still pending specific regulation, which is once again promised in the aforementioned Preliminary Draft Bill.

I will further summarise the synthetic solution given to a similar dilemma by the French Law, nº 2016-1547 for the “Modernisation of Justice in the 21st century”, of 18-11-16.

Its Title II, “Favoriser les modes alternatifs de Règlement des Différends”, meant the immediate recognition of ‘administrative mediation’, which in the neighbouring country is implemented before the “Conseil d’État”, competent for all contentious judicial proceedings. This was the culmination of a long road which, according to the neighbouring country’s experts, began in 1986, continued in 2011 when it was also recognised by way of ‘judicial appeal’, and was completed in 2016 with its generalisation in the ‘contentious jurisdiction’.

This Title consists of only eight articles. The first, Article 4, makes the ‘tentative de conciliation’, which becomes a synonym for mediation, à peine d’irrecevabilité‘, a ‘procedural requirement’, subject to certain exceptions.

Article 5 starts from the legal text, – Ordonnance nº 2011-1540 -, which transposed the European Union Directive 2008/52/EC, and then goes on to amend certain procedural laws in order, after deleting the adjective ‘judicial’, – ‘judiciaire’ -, to make it clear that the way to mediation in civil, criminal and administrative matters remains open.

Then, the different modifications to be introduced in the ‘Code de Justice Administrative’ are collected, briefly regulating the future of this speciality of mediation with a ‘general character’ firstly, and then ‘at the initiative of the parties’ or ‘at the initiative of the Judge’.

Thus ends the brief Title II, then begins Title III, “Dispositions Tendant à l’Amélioration de l’Organisation et du Fonctionnement du Service Publique de la Justice”, terminology of “Public Service” also introduced in the Preliminary Draft Law under discussion, known by its acronym, ALMEP.

Without a doubt, the reiterated French law was studied in depth by the dedicated Minister José Carlos Campo and his more specialised collaborators, faced with the same challenge of “modernising Justice”. They undoubtedly took some good proposals from it. However, we see that they did not dare to take the great step taken by France in favour of administrative mediation, which consisted in drafting a similar Title in our Preliminary Draft.

This would have solved, I think, the fateful waiting period in which we find ourselves, which blocks a better development of these increasingly indispensable ‘alternative’ methods of conflict resolution, now called ‘adequate’. This reminds me of my learning of the ‘false friends’ of the English language, and allows me to pay homage to the late Professor Peter Garret, from my years as a competitive examiner. He always warned us that ‘adequate’, so often used in diplomatic negotiation, did not mean the same as in Spanish, but rather ‘sufficient’, the correct meaning, which is also useful when talking about conflict resolution.

I believe that there will still be time for the legislature, via amendment, to improve the future Bill, still pending a third and final drafting in the light of the observations of the High Consultative Body.

I will quote again from the recent appearance of the Secretary of State. Rodríguez Esquerdo said that “justice is not only jurisdiction, we must promote agreement and a culture of peace as a way of overcoming our differences, which is why we propose special attention to the regulation of mediation, conciliation and the designation of third party experts for the resolution of disputes”.

Unfortunately, nothing was said, unfortunately, about the pending issue which continues to be the repeated, and always unfulfilled, promise to legislate on administrative mediation, despite the fact that, as we all know, and without the need to invoke precise statistics, administrative jurisdiction accounts for a high percentage of all pending lawsuits, which are also in great need of extrajudicial solutions, if the reiterated purpose of, as the Preliminary Draft says, ‘seeking agreed solutions that guarantee social peace and coexistence as far as possible’ is to be fulfilled, especially if it also ends by stating that ‘it is also the responsibility of citizens to contribute to the sustainability of the public service of Justice’.

Fortunately, there are more and more judges and magistrates, men and women, who, invoking the regulations in force, – Art. 86 of Law 39/2015 on “Administrative Procedure”, and Art. 77 of Law 29/1998 on “Contentious-Administrative Jurisdiction” -, resort from their work posts to this figure, recognised as compatible with the fundamental right to ‘effective judicial protection’, proclaimed by our Constitution. Undoubtedly, the “Spanish Chapter” of the very active “European Association of Jurists in favour of Mediation” (GEMME) has contributed a great deal to this continuous impulse.

I would therefore end with an appeal to the many parliamentary experts of the different parties to be aware of the frustration that will undoubtedly be generated by the fact that the important text of the Law does not include the expected recognition, in good legal technique, of the legal existence of administrative mediation in Spain, without this meaning that the always necessary future specific regulation, which could be done by Royal Decree, should be renounced.

 

 Written by: Javier Jiménez Ugarte, Of Counsel LILF

 

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