The Law Commission

Appendix D

Time Limits: EC Law and Other Jurisdictions

I. Further light may be cast on the judicial understanding of the concept of good administration by comparison with the approach adopted in EC law to limiting the time within which administrative acts or rules laid down by EC institutions may be challenged. There is a central principle of legal certainty. The European Court of Justice has stated that:

"The limitation period for bringing an action fulfils a generally recognized need, namely the need to prevent the legality of administrative decisions from being called into question indefinitely, and this means that there is a prohibition on reopening a question after the limitation period has expired."^[1]

II. It has also been suggested that such time limits meet the need to avoid any discrimination or arbitrary treatment in the administration of justice.^[2] On the expiry of the time limit, usually between one and three months^[3] from the publication or notification of the measure in question, a measure becomes formally valid, rendering it inadmissible to bring an action to challenge the validity of the measure.^[4]

III. In Scotland there is no special time limit.^[5] In Northern Ireland, RSC (NI) Order 53, rule 4 states that where leave to apply has not been sought within three months, the court may not grant leave or relief unless it is satisfied that such a move would not cause hardship to or unfairly prejudice the rights of any person.^[6]

IV. In Canada, most jurisdictions do not impose a strict time limit, preferring to leave the question of delay to the court's discretion. In Nova Scotia and in Alberta, on the other hand, there is a strict six month time limit regarding an application for certiorari.^[7] The court may refuse an application made within the six month period on the ground of undue delay, and the primary considerations here too are said to be the need for effective and reliable administration, and hardship and prejudice to third parties who have acted in good faith on the strength of an apparently valid decision.^[8] The Law Reform Commission of Canada has recommended that periods for applying for and proceedings within judicial review should be fairly short but that the court should retain the power to extend the time.^[9]

V. In New Zealand there is no express time limit, but the court has discretion to refuse relief if there has been undue delay. In Australia, the time limit varies: for the Commonwealth of Australia the period is generally 28 days, although the court has a wide discretion to extend it.^[10] In New South Wales, there is no time limit. The Law Reform Commission of Western Australia has recommended a primary requirement that an applicant must commence proceedings promptly and in any event within six months, and that the six month period may be extended if there is good reason for doing so.^[11]

VI. In the United States, time limits are generally dealt with in the context of specific statutes rather than in administrative procedure Acts. At the Federal level, many statutes are modelled on the Federal Trade Commission Act 1914 which requires proceedings to be instituted within sixty days after the service of an order^[12] although periods of thirty days are not uncommon.^[13] As far as State law is concerned, it is commonly provided that petitions for judicial review of orders must be filed within thirty days, but, in the case of action other than orders or rules, that the period will be extended while the petitioner is exhausting administrative remedies.^[14] The general review Statute in New York provides that all review actions must be instituted within four months.^[15] In the case of administrative rules, the Model State Administrative Procedure Act 198 1 provides no time limit on challenges to the substance of rules but a two year limit on challenges to their procedural adequacy.^[16]

VII. A question may be raised as to the time limits applicable where an applicant seeks to rely on directly enforceable EC rights in domestic courts. It is clear that national courts are required to protect rights arising from directly enforceable provisions of EC law.^[17] It has been held that it is for the domestic legal system of each member state to determine the procedural conditions, including those relating to time limits where none has been laid down by Community law.^[18] Time limits must be "reasonable" and should not be less favourable than those relating to similar actions involving purely domestic issues.^[19] Where national authorities have failed to comply with a directly enforceable EC provision they are in any case prohibited from relying on any domestic time limit for the bringing of an action until their compliance is made good.^[20] Similar considerations apply to rights under the European Convention on Human Rights,^[21] although these are not directly enforceable in United Kingdom courts and the impact of such rights on procedure can only be indirect.

Note 1   Case 3/59 Federal Republic of Germany v High Authority [1960] ECR 53, 61. See also Case 156/67 Commission v Belgium [1978] ECR 1881, 1896.    [Back]

Note 2   Case 209/83 Ferriera Valsabbia Case [1984] ECR 3089.    [Back]

Note 3   For a fuller account of the position relating to time limits, see HG Shermers and DF Waelbroeck, Judicial Protection in the European Communities (5th ed 1992), pp 54 - 56. Under Article 26 of the European Convention on Human Rights, the period is six months from the date of a final decision, on which see P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights, (2nd ed 1990), pp 98 - 104.    [Back]

Note 4   For exceptions to the principle of formal validity see J Schwarze, European Administrative Law (1992) p 1044-1054.    [Back]

Note 5   cf Hanlon v Traffic Commissioners 1988 SLT 802 (where 3 weeks was undue delay ie “mora” in a case involving taxi fares). For the position in Scotland generally see: N Collar “Mora and Judicial Review” 1989 SLT (News) 309; I Cram “Delays in judicial review” 1993 NLR 1198; CMG Himsworth “Judicial Review in Scotland” in M Supperstone QC and J Goudie QC, Judicial Review (1992) pp 421 - 422; Stair Memorial Encyclopedia of the Laws of Scotland (1987) vol 1, pp 59 - 196.    [Back]

Note 6   The Northern Ireland case law is analysed by B Hadfield, “Delay in Applications for Judicial Review - A Northern Ireland Perspective” (1988) 7 CJQ 189 and “Judicial Review in Northern Ireland: A Primer” (1991) 42 NILQ 332.    [Back]

Note 7   Rule 56.06 of the Nova Scotia Civil Procedure Rules 1971 and Rule 742 of the Alberta Rules of Court.    [Back]

Note 8   DP Jones and AS de Villars, Principles of Administrative Law (1985) pp 373-4; JM Evans, HN Janisch etc Administrative Law, Cases and Materials (3rd ed 1989), p 1075.    [Back]

Note 9   Report 14, Judicial Review and the Federal Court (1980), Recommendation 6.4.    [Back]

Note 10   Commonwealth Administrative Decisions (Judicial Review) Act 1977, s 11; DC Pearce, Commonwealth Administrative Law (1986) p 139 para [355].    [Back]

Note 11   Report on Judicial Review of Administrative Decisions: Procedural Aspects and the Right to Reasons (1986), Project No 26 - Part 11, ch 7, Recommendations 6-8.    [Back]

Note 12   15 USCA para 45. See generally, Schwartz Administrative Law, (3rd ed 1991) p 472.    [Back]

Note 13   Eg Federal Communications Commission Act 1934,47 USCA para 402 and Clean Air Act 1970,42 USCA para 7401.    [Back]

Note 14   WR Andersen, "Judicial Review of State Administrative Action - Designing the Statutory Framework”,(1992) 44 Admin L Rev 523, 539-40.    [Back]

Note 15   NY Civ Pr L & R, para 217.    [Back]

Note 16   Sections 3-1 13(b), 5-108.    [Back]

Note 17   Article 5 EEC Treaty.    [Back]

Note 18   See Case 45/76, Comet [1976] ECR 2043, 2053.    [Back]

Note 19   See Case 33/76, Rewe [1976] ECR 1990, 1998. But it may be queried whether the presumption in favour of domestic legal certainty in Rewe and Comet is due to the fiscal context in which they arose.    [Back]

Note 20   See Cannon v Barnsley MBC, The Times, 24 June 1992, applying Case No 208/90, Emmott v Minister for Social Welfare [1991] 2 EC Cas 395. In R v Minister of Agriculture, Fisheries and Food, ex p Bostock [1991] 1 CMLR 687 leave was granted out of time where doubt had been cast on a decision by a subsequent EC instrument.    [Back]

Note 21   Articles 6(1) and 13.     [Back]