III.Forms of Administrative Action
1. ADMINISTRATIVE DECISIONS
a)Omnipresence of Administrative Decisions
Administrative decisions can be jocularly considered the Pythagorean Theorem of Swiss administrative law. Admittedly, they are not part of the subject of advanced mathematics nor can they be considered as being even close in brilliance to the theorem. Despite this, it is certainly true that administrative decisions stand at the centre of many administrative doctrines. If one understands the notion of an administrative decision, one has securely mastered an understanding of the private-public law divide, the shallow waters of administrative contracts, regulations and their occasional crossover into individual acts, and the essence of a right or duty in administrative law.
Administrative decisions are intrinsically linked to judicial protection and procedural rights; they guarantee their existence.52 One should further note that administrative decisions are the common form of administrative action. “The power to administer includes the power to issue administrative decisions”.53
Administrative decisions are attractive because they create legal certainty. They are also the bridge to – and a prerequisite for – enforcement.54 Rights granted by administrative decisions cannot be easily revoked and they are protected under the doctrine of legitimate expectations. In practice, courts allow for the modification of administrative decisions if the facts or the law that formed the original basis of the decision have substantially changed. However, they will not modify administrative decisions if, for example, a private person has just missed the time limit to file an appeal.55 In this respect, administrative decisions have a similar effect to court decisions. If they go unchallenged, they enter into legal force. However, this is certainly not to say that administrative decisions have absolute legal force. Court practice and legal doctrine demonstrate this through their handling of, for example, administrative decisions with an indefinite legal effect. For example, the Swiss driver’s license does not have an expiration date but obviously it can be revoked in the case of serious traffic offenses.56
b)Definition of Administrative Decisions
The Federal Act on Administrative Procedure57 provides for a definition of an administrative decision. In its (unofficial) English translation, Article 5 I reads as follows:
“Rulings are decisions of the authorities in individual cases that are based on the public law of the Confederation and have as their subject matter the following:
a. the establishment, amendment or withdrawal of rights or obligations;
b. a finding of the existence, non-existence or extent of rights or obligations;
c. the rejection of applications for the establishment, amendment, withdrawal or finding of rights or obligations, or the dismissal of such applications without entering into the substance of the case.”
It is debatable whether the term “ruling” is the most suitable in this context, as this term is also often used to describe the administration’s response to an inquiry on certain issues of an administrative nature (especially in taxation).58 It seems that in practice the term “administrative decision” as it is used in this book is closer to Verfügung in German or décision in French. Instead of the term “administrative decision”, one may also talk about an “administrative act”, which comes closer to the literal meaning of what is described as Verwaltungsakt in Germany or acte administratif in France. However, although the French and German terms share many elements with the Swiss concept of an administrative decision (unilateral, individual, rooted in public law) one should not equate them without due caution.
As a final remark, it should be mentioned that Swiss cantons do not necessarily have to adopt the definition of the Federal Administrative Procedure Act. However, they tend to do so in practice.59 Even when they use other denominations, it is relatively safe to assume that in substance they follow the example set out by Article 5 Administrative Procedure Act.
c)Administrative Decisions Determining Rights and Obligations
An administrative decision establishes, amends or withdraws rights or obligations. Indeed, this is the raison d’être of an administrative decision.60 Other forms of administrative actions may have legal consequences, which are not intended but at most accepted as necessary collateral damage in the fulfilment of the administrative act – for example, a police action, which accidentally leads to the harming of an innocent bystander. In contrast, administrative decisions purposefully determine, confirm, and stabilise a legal situation. One may have a right to build a house but not be legally permitted to do so before a permit has been granted in the form of an administrative decision. If the administration collects taxes, it will often do so in the form of an administrative decision, thereby concretising tax law in an individual case, establishing the citizen’s duty to pay the tax and simultaneously establishing the basis for the decision’s enforcement ipso jure. Administrative decisions can also be negative in substance: if a candidate for the bar exam fails, the commission will confirm the result through a negative decision (while also granting the right to appeal).61 Finally, an administrative decision may simply confirm an existing legal situation (“Feststellungsverfügung”)62, thus providing legal certainty for the party requesting the confirmation (e.g. the confirmation that a certain private business practice is in accordance with existing environmental regulation, hence excluding the risk of administrative sanctions in the future).
Usually, the most difficult assessment is to determine which administrative actions affect and change the legal situation of a private individual and thus must be issued formally as an administrative decision, and which do not. The administration would often prefer that it was not necessary to issue an administrative decision as this forecloses the right to appeal and avoids the initiation of a procedure, which would require all constitutional guarantees to be ensured throughout the process, such as the right to be heard.63 Within this framework, the Swiss Federal Supreme Court has held that there must be an administrative decision before disrupting energy services from a public utility64 or in cases involving the unsolicited transfer of a civil servant to another post,65 whereas there is no need for an administrative decision where a post office is closed in a small rural community.66 The Court ruled also that not only the university degree but also the issuance of single grades may constitute an administrative decision if the award of a distinction depends upon them.67 In all the above cases, the Swiss Federal Supreme Court had to decide whether the state’s actions had legal consequences for the individual. If the question was answered in the affirmative, an administrative decision was formally required.
d)Administrative Decisions as Individual Acts
It is quite clear from the legal definition of administrative decisions and from the afore-mentioned examples of such decisions that they concern individual cases. Swiss doctrine would typically label the decision as individual (one person) and concrete (one situation) (individuell-konkret), in contrast to rulemaking, which is perceived as general and abstract (generell-abstrakt).
A critical matter under Swiss law are those cases which concern a concrete situation yet whose settlement has implications for the wider public, thus requiring the issuance of a so-called general decision (Allgemeinverfügung). The paramount example is traffic regulation, illustrated by a well-known case which prohibited riding (and driving) on the banks of river Töss.68 “General decisions” qualify as administrative decisions but with some modification in respect of the right to be heard (and the procedural rights that accompany this right) – in such cases, these rights are only granted to persons specifically affected by the decision. For example, in the aforementioned case, this would most likely be a homeowner living on the riverbank. The decision must be published and can be challenged by everybody potentially affected (typically almost everybody).69 In contrast to a regular decision which will enter into force if not challenged in due time and which cannot be challenged beyond this point, a person affected by the sign may challenge its validity even after the decision comes into force (e.g. an equestrian from another canton that has been fined after riding on the riverbank).70
e)Administrative Decisions as Unilateral Acts
Swiss administrative law unfolds around the idea of the “sovereignty” (“Hoheitlichkeit”) of administrative action. Administrative action entails that the state has the privilege to act unilaterally towards its citizens. In this sense, administrative decisions are unilateral. Yet, not all state action must be as such.71 Indeed, the state may wave its prerogative and act through administrative or private law contracts, thus entering a bilateral agreement with citizens.
In theory, discerning a unilateral state action from an action that originated from an administrative or private law contract seems straightforward. However, this is not the case in practice. One must realise that administrative decisions of a sovereign state do not simply rain down onto unaware private subjects, not least because these subjects are often substantially involved in the decision-making process. One instrument, which ensures proper interplay between the state and private individuals, is the right to be heard, as mentioned above. Admittedly, this right is the channel par excellence for allowing an individual to negotiate with the administration. Furthermore, many administrative decisions require an application from an individual for the administration to ex officio regulate the case.
To determine whether a contract has been concluded one should examine the level of discretion on the administration’s part. The administration will hardly act as if it is contractually bound if there is no room for negotiations because of detailed regulation; it will, however, act in such a way when it is party to a complex relationship with a private enterprise (for example an organisation that is paid to organise training for unemployed persons).72 On some occasions the legislator has already prescribed the form of administrative action. A typical example of this is the employment of civil servants where the administration is legally required to act through the form of an administrative decision, if so decided by the legislator.73 Finally, one should also keep in mind that administrative decisions are the usual form of action, hence placing the burden for justifying contracts onto the administration. In fact, regarding subsidies under federal law, the Act on Public Subsidies74 explicitly embraces that rule in Article 16.
f)Administrative Decisions as Acts Under Public Law
Administrative decisions must be based on public law, as Article 5 Administrative Procedure Act explicitly states. This prerequisite seems self-evident. However, quite the opposite holds true when one considers the matter of the public-private law divide that the issuance of administrative decisions brings to the forefront. The Swiss Federal Supreme Court typically approaches critical cases by applying different theories, considering sovereignty (Subordinationstheorie), interest and mandate (Interessentheorie and Funktionstheorie), and – the only recently reactivated – consequences (Modaltheorie), eventually choosing the most suitable one for the case at hand.75 This eclectic approach has been criticised but thinking of a better alternative remains a challenge.76
Public law (triggering the need for administrative decisions) is typically applicable if administrative actions are directly fulfilling public interests or a public mandate.77 On the other hand, administrative actions may qualify as falling under private law if the agency seeks profit or to satisfy its own affairs as a private party would do. If the agency benefits from special powers over private individuals, this can be considered as a clear indication of public law.78 Finally, note that it may be that the legislator has already legally determined the nature of the administration’s actions. In one case where the Swiss Federal Supreme Court had to decide on the question of whether the allocation of domain names is a private or public law action, it held that the legal relationship was one of private law. Although there was substantial public interest or even a public mandate for this activity, the legislator had provided for a private law setting, and the Court did accept this qualification.79 The Swiss Federal Supreme court took a similar approach in a case involving the issuing of certificates of conformity provided by a private enterprise: this specific procedure was necessary to label a cheese “Gruyère AOC”. The Swiss Federal Supreme Court determined the proceeding as an action under public law, reasoning that the possible sanctions imposed for failure to obtain such a certificate were comparable to restrictions on trade.80
If one goes through the prerequisites of an administrative decision (an individual, unilateral act under public law determining rights and obligations), one may note that those do not prescribe a certain form that the decision must meet; instead they are substantive requirements. Indeed, the form of an administrative decision is a consequence of these substantive characteristics. An administrative decision must be handed down in writing, be named as such, give reasons for the way in which it has regulated an issue and inform the recipient of any available legal remedies.81 If the administrative decision was not effectively delivered, it usually is contestable on this ground.
2. ADMINISTRATIVE LAW CONTRACTS
It has already been pointed out that the administration may act as a contracting party and that contracts must be distinguished from administrative decisions, the latter being imposed by the state unilaterally. Administrative contracts are certainly considerably rarer than administrative decisions. Many of their legal implications are disputed and it is not without reason that one scholar has termed them the “liaison dangereuse” of Swiss administrative law.82
A favourable aspect of acting under an administrative contract is its stability. Administrative contracts may grant “vested rights” (“wohlerworbene Rechte”) that enjoy elevated protection under the doctrine of legitimate expectations. In fact, vested rights may not be abolished by future legislation, at least not without due compensation to the affected individual.83 Vested rights create some noticeable tension between the need for administrative stability and state sovereignty. This is because these rights may restrict the state’s ability to enact future legislation, as they are often guaranteed for an indefinite or at least a substantial period.84 However, if the legislator was able to undermine or overrule such contractual rights through new legislation, it is equally clear that this would undermine administrative stability and the willingness of private parties to conclude contracts with the government. The Swiss Federal Supreme Court decided numerous cases regarding the extent of respect, which must be paid to vested rights;85 this tends to vary depending on the substance of the contract. For instance, many employment contracts of civil servants do not create such rights at all or at least do not create unconditional ones.86 In a case, which involved the incorporation of a private owner’s land into the agricultural zone in exchange for the introduction of legislation that would increase the value of other pieces of land he owned, the question before the Court was whether the municipality could subsequently revoke this favourable legislation without compensating the owner. The Court accepted that the municipality refrained from introducing such legislation.87
3. PRIVATE LAW CONTRACTS
It has long been established that the administration may also conclude private law contracts. But as it is the case with administrative law contracts, the adminstrative authority must justify its decision to enter into a private law contract. Doctrine has largely been sceptical about the permissibility of the state “escaping into private law” (“Flucht ins Privatrecht”).88 Indeed, it does seem tempting for the authorities to act under private law contracts since it may evade many of the substantial and procedural guarantees of administrative law.
For that reason, court practice and doctrine essentially acknowledge limited areas where the administration may permissibly operate in the field of private law: public procurement, the management of financial assets of the state, and profit-oriented state action. It is also accepted that the legislator may introduce this form of administrative action to other fields.89
4. INFORMAL ACTS AND STATE LIABILITY
Administrative decisions and contracts share a common denominator: they affect the legal situation of citizens. In contrast, informal actions (“real acts”; Realakte according to Article 25a Administrative Procedure Act) of administrative bodies do not − at least not deliberately. The “deliberately” aspect is a key point; even if informal actions do actually affect a citizen’s legal situation, they will still be classified as informal actions. Most actions performed within the framework of schools or hospitals do not amount to legal actions even though there is sometimes a fine line.90 A police car patrolling in a neighbourhood does not trigger any legal effect; nor does the dissemination of governmental information.91 Swiss cheese producers suffered substantial losses when the federal agency on public health warned about possible contamination of listeriosis in Vacherin Mont d’Or.92
To challenge such action, one can resort to a state liability claim in order to challenge informal acts but these cases are not easily won against the government (burden of proof, the necessity of qualified illegality of the state action etc.). The cheese producers were not successful.93
Due to such concerns a new provision was introduced into the Administrative Procedure Act: according to Article 25a Administrative Procedure Act, persons affected may require that an administrative decision is taken on informal acts that concern them specifically (such as the cheese producers). If granted, the administrative decision is subject to a challenge before the courts. The request may target past, current, or future administrative action and is directed to the administrative authority responsible for that action.94 According to the wording of Article 25a Administrative Procedure Act, to have the legal standing to make such a request, one must prove an interest worthy of protection (a legal term similarly formulated in other administrative proceedings statutes).95
5. ADMINISTRATIVE RULEMAKING
In contrast to other countries, in Switzerland administrative rulemaking is not subject to specific procedural rules. Only legislation from Parliament is subject to compulsory public consultation.96 However, if administrative rulemaking comes in the form of delegated legislation, it must respect the principle of legality.97
52See also TSCHANNEN, n. 339 et seq.
53BGE 115 V 375, consideration 3b; TSCHANNEN/ZIMMERLI/MÜLLER, § 29 n. 19.
54REGINA KIENER/BERNHARD RÜTSCHE/MATHIAS KUHN, Öffentliches Verfahrensrecht, 2nd edition, Zurich/St. Gallen 2015, n. 852.
55HÄFELIN/MÜLLER/UHLMANN, n. 1090; see also BGE 139 II 243, consideration 11.2.
56See Article ١٥c I and Article ١٦c II Federal Road Traffic Act of 19 December 1958, SR 741.01.
57Federal Act on Administrative Procedure of 20 December 1968 (Administrative Procedure Act, APA), SR 172.021; see for an English version of the Administrative Procedure Act www.admin.ch (https://perma.cc/2KU3-NLWU).
58HÄFELIN/MÜLLER/UHLMANN, n. 733; BGE 141 I 161, consideration 3.1; THOMAS FLEINER/ALEXANDER MISIC/NICOLE TÖPPERWIEN, p. 284.
59HÄFELIN/MÜLLER/UHLMANN, n. 852.
60HÄFELIN/MÜLLER/UHLMANN, n. 867; FLEINER/MISIC/TÖPPERWIEN, p. 285.
61Cf. HÄFELIN/MÜLLER/UHLMANN, n. 886; TSCHANNEN/ZIMMERLI/MÜLLER, § 28 n. 65.
62Cf. HÄFELIN/MÜLLER/UHLMANN, n. 889; TSCHANNEN/ZIMMERLI/MÜLLER, § 28 n. 62 et seq.
63KIENER/RÜTSCHE/KUHN, n. 315.
64BGE 137 I 120, consideration ٥.٥; see also p. ٢٣٨.
65BGE 136 I 323, consideration 4.
66Cf. BGE 109 Ib ٢٥٣, consideration 1.
67BGE 136 I 229, consideration 2.6.
68BGE 101 Ia 73.
69HÄFELIN/MÜLLER/UHLMANN, n. 943 et seq.
70HÄFELIN/MÜLLER/UHLMANN, n. 946.
71HÄFELIN/MÜLLER/UHLMANN, n. 843; FLEINER/MISIC/TÖPPERWIEN, p. 285.
73E.g. § 12 Act of the Canton of Zurich on the Public Personnel of 27 September 1988, 177.10.
72E.g. BGE 128 III 250.
74Act on Public Subsidies of 5 October 1990, SR 616.1.
75BGE 138 II 134, consideration 4.1.
76Cf. TSCHANNEN/ZIMMERLI/MÜLLER, § 18 n. 6.
77HÄFELIN/MÜLLER/UHLMANN, n. 225 and 229.
78HÄFELIN/MÜLLER/UHLMANN, n. 223.
79BGE 138 I 289, consideration ٢.١; BGE ١٣١ II ٢٦٢, consideration ٢.٢.
80BGE 138 II 134, considerations 4.5 and 4.6.
81See, for administrative decisions based upon federal law, the Federal Administrative Court decision B-198/2014 of 5 November 2014, consideration ٢.٣.٢.
82TSCHANNEN, n. 142.
83HÄFELIN/MÜLLER/UHLMANN, n. 1315.
84HÄFELIN/MÜLLER/UHLMANN, n. 1242.
85See, inter alia, BGE 126 II 171; BGE 127 II 69; BGE 132 II 485.
86See Federal Supreme Court decision 1C_230/2007 of 11 March 2008, consideration ٤.١.
87BGE 122 I 328.
88HÄFELIN/MÜLLER/UHLMANN, n. 1379.
89See BGE 131 II 262, consideration 2.2; TSCHANNEN/ZIMMERLI/MÜLLER, § 42 n. 3.
90HÄFELIN/MÜLLER/UHLMANN, n. 1409.
91HÄFELIN/MÜLLER/UHLMANN, n. 1413.
92BGE 118 Ib 473.
93BGE 118 Ib 473, consideration 6.
94HÄFELIN/MÜLLER/UHLMANN, n. 1429.
95See § ١٠c Administrative Procedure Act of the Canton of Zurich of 24 May 1959, 175.2.
96Article 147 Constitution; Article 3 of the Federal Act on the Consultation Procedure of 18 March 2005 (Consultation Procedure Act, CPA), SR 172.061; see for an English version of the Consultation Procedure Act www.admin.ch (https://perma.cc/HS8B-2PVT). In particular, there is no right to be heard during the law making process, BGE 131 I 91, consideration 3.1.
97HÄFELIN/MÜLLER/UHLMANN, n. 368.