The standing of private plaintiffs in Israeli Administrative Law

The standing of private plaintiffs in Israeli Administrative Law-

The question of standing revolves around the question of whether the plaintiff is entitled to have the court rule on the merits of the case that the plaintiff wishes to bring before that court.

In Israel the definition of a private claim brought before the court, is one where "the plaintiff is protesting a harm done to an interest that is unique to her, this is a personal injury specific, done to the plaintiff, that is actual or imminent"[1]. An important addition to this definition, for our purposes should focus on the 'negative private plaintiff', here the claim brought before the court is asking for a remedy that is negative instead of positive. I.e. the plaintiff is asking not be recognized as having a certain right, but rather, that a certain right be denied from his fellow person.

The First Period- Into the Valley of the Cedar Groves 

In 1964 in a ruling given by the Supreme Court as The High Court of Justice, a company Mata'ey HaArazim Inc. (Hebrew for Cedar Groves Inc), was the plaintiff in a case where it had asked that a competitor remove its stand from the side of the road, where Mata'ey HaArazim use to have a similar stand but was asked to remove it, since it was endangering the traffic, on account of drivers that would stop on the curve of the road to buy the company's products. Justice Zvi Berenzon in a short ruling, that seems to be based on the simple principle of culpa est immiscere se rei ad se non pertinent (it is a fault to anyone to intervene in matters not pertinent to them), ruled against the plaintiff stating: "I think, that we would go too far if we recognize the plaintiff as having standing before us, it is not asking anything for itself on the basis of discrimination rather it demands that we take measures against its fellow person".[2]

The Middle period- The Exodus from the Valley of the Cedar Groves[3]

The position of the court changed dramatically however, in 1992 in the case of Kargal, the facts of the case revolved around a carton manufacturer who had received a government subsidy under the The Capital Investment Encouraging Law of 1959, the plaintiff Kargal also a carton manufacturer, brought a claim before the High Court of Justice and arguing on the merits this to be an unfair competitive advantage and that the subsidy was given ultra vires, the importance of the case was that the respondent argued based on Justice Berenzon's ruling from Mata'ey HaArazim that the plaintiff did not have standing, asking for a negative remedy to take away a right given to their competitor. Justice Goldberg writing the opinion had ruled:

"if one citizen out of an unparticular group of injured can, in some particular circumstances, gain standing, what could be the reason not to recognize the standing of a member of a certain business branch, who's in the position to point to an economic interest of hers that is negatively affected by a privilege given unlawfully to a fellow competitor in that same branch?... therefore, this plaintiff must present a "real harm", or an immediate danger of such harm, to gain standing as a private plaintiff."[4]

 It is no coincidence that this ruling came following the passing of the Basic Law: Freedom of Occupation (1992), as part of the what is referred to in Israel "The Constitutional Revolution" this law is interpreted by the Israeli Supreme Court as having a constitutional nature, therefore harming what now became a constitutional right of the plaintiff, by inhibiting her freedom of occupation, clearly made her constitutionally directly affected by the decision to give subsidies to her competitor, and consequently enabled her to gain standing before the court.

Having established the standing of the private negative plaintiff in cases of discrimination or business competition, there were some who argued that the precedent set by the Kargal case, did not apply to ALL private negative plaintiffs, that in fact the court simply set a number of exceptions to the Mata'ey HaArazim that continues to apply to all other cases where the private plaintiff is being harmed in an indirect fashion only.

This position seemed to have been utterly refuted in 2005, when judge Uri Goren the president of the Tel-Aviv district court, and a leading expert in Israeli Civil Procedure and Israeli Administrative Procedure, ruled the following: "In the last years as we know the standing of the plaintiff was widened- both of the "private" plaintiff and "public" plaintiff- in the administrative courts. This widening of the right of standing was not done in an empty space. It was an expression of a worthy perception, calling for the deepening of the judicial scrutiny over administrative acts… while in the past it was common to demand of the plaintiff to point to a harm done to an actual interest of hers, that was personal and direct to prove her standing, today in light of the importance of the principal of the rule of law, we acknowledge the standing of the plaintiff even of the administrative authority did not harm her directly".[5] 

The Current Period- Back to the Valley of the Cedar Groves

This analysis of judge Goren seems to have been recently put under question by the Israeli Supreme Court in the case of Shay Gil v. The Minister of Education-[6] in this case a private citizen Shay Gil was the plaintiff in a case against the Minister of Education for awarding the Israel Prize (the state's highest honorary prize) for achievements in sports to Mr. Shimon Mizrahi, the chairman of Macabbi Tel-Aviv basketball club, for his contribution to the sport of basketball in Israel. The merits of the case were that Mr. Gil argued that one of the members of the committee that had recommended Mr. Mizrahi be given the prize was a former player in the Maccabi Tel-Aviv and therefore was in a conflict of interests.

While Justice Grunis, President of the Supreme Court did not strike down the plaintiff on grounds of standing he did say quite explicitly: "this petition, and similar petitions that were brought before the court in the past concerning the Israel Prize, are similar in that the plaintiff is not arguing that she is worthy of receiving the prize. The goal of the petition is to bring about the revoking of the prize from a person being chosen by the prize committee and the Minister of Education. Some would argue that these petitions are grounded in a lack of appreciation others would go as far as to say the plaintiffs are interested in the revoking of the prize out of spite… in the distant past this court had ruled that it would not acknowledge the standing of a plaintiff that is petitioning only to deny a right of her fellow person. Indeed, since that ruling there has been a dramatic change in case law as it comes to standing, the court had removed, practically, the need of standing as a prerequisite in an administrative petition. The case before us demonstrates, I would argue, the necessity of rethinking the subject".[7]

In a concurring opinion Justice Meltzer seemed to have seamlessly taken this opinion by Justice Grunis further, by resetting certain categories that the private plaintiff must fit to gain standing- "in the question of Standing, we have identified two separate spheres. the first, deals with the plaintiff in the HCJ that brings forth a petition to deny a right from her fellow person for reasons of harming her right to Freedom of Occupation, for interfering with competitiveness or prevention of discrimination."[8] 

Some thoughts-

the trend set in the Sahy Gil case, is troubling to be sure. The supreme court seems to grasp at case that seemed petty, and use it to reshape the definitions of Standing of the private plaintiff. Justice Meltzer's concurring opinion is particularly troubling, since it seems to change the current definition of Standing of the private plaintiff as articulated by Judge Goren, and once again put it under certain constraints.

To be sure, the present author has no doubt that some petitions brought before the court lack merit and therefore should be struck down – On their merits, but not procedurally. Certainly, some costs are the inevitable result of such a position, unlike Justice Grunis, the present author is of the opinion that the respondents in frivolous cases can be compensated for expenses that should be put on the plaintiff. But even on this point, one should be careful- as plaintiffs may be deterred from brining claims against the wrongs committed by the administrative branch, if they fear that the expenses that will be set upon them might be crippling to their future activity.      



[2] HCJ 100/64 Mata'ey HaArazim Inc. v. The Commissioner of the District of Jerusalem and others, pd 18(2) 278, 280 (1964).

[3] This title was inspired by a legal article by Offer Drori written in 1995, called "exiting the valley of the cedar groves" also discussing the Private plaintiff before the administrative courts in Israel.

[4] HCJ 287/91 KARGAL INC. v. THE DIRECTORATE CENTER for INVESTMENTS, pd 46(2) 852, 861 (1992).

[5]  AP (Tel-Aviv District Court) 1190/04, "Adam Teva V'Din" Israel Union for Environmental Defense v. The District Zoning Committee of the Central Distrcit, para. 31 of the Judge Goren's ruling (2005).

[6] HCJ 2324/11 Shay Gil v. The Minister of Education (26.4.11).

[7] Ibid, para. 11 of Justice Grunis' opinion.

[8] Ibid, para. 1 of Justice Meltzer's opinion.