НЕКА ОТВОРЕНА ПИТАЊА ПРИМЕНЕ ЗУП-а
Disputable Issues in the Application of the Administrative Procedure Act

Summary/Abstract: The reform of administrative procedure and the applicable General Administrative Procedure Act (GAPA) calls for determining the “open” and “disputable” issues in the application of this Act. The process of reforming the administrative legislation does not only imply taking into account the EU standards but also considering the complex, abundant and diverse national administrative practice and case law. The Serbian administrative practice points to some “open” questions in the application of the current GAPA which should be the cornerstones in the reform of administrative legislation. In that course, it is crucial to start from the current administrative legislation and administrative practice. It is worth noting that the GAPA is already subject to permanent reform through the process of amending the subject-specific substantive provisions governing special administrative proceedings. Such practice should be upheld because the area of special administrative procedure is a dynamic environment where the APA is actually being modeled by amending the special administrative proceedings but in full compliance with the fundamental GAPA principles. Thus, the GAPA should be subject to minimal reform, primarily in the regulation of those procedural matters which have already passed the application test in both national and comparative practice; these “safe points of reference” significantly improve the process in line with the basic administrative principles and largely contribute to its efficiency, as opposed to other alternative proposals on procedural solutions. The basic presumption for a successful APA reform is the functional analysis of the Draft GAPA. Some of the disputable issues include the subject matter of the GAPA, the enactment of administrative acts and concluding administrative agreements. In case of expanding the scope of the GAPA subject matter, the legislator is obliged to expressly regulate the administrative proceeding for concluding administrative agreements under the GAPA rules. This can be achieved either by amending the APA or by enacting a subject-specific act. The former option includes a number of possible solutions that we may consider (the Croatian APA, the ghastly Serbian draft GAPA, or the relevant application of the Public Procurement Act, etc.). Another previous and/or related question is what kind of concept of administra-tive procedure we shall opt for: the narrow (Austrian) or the broader (German) concept, where any action of the public administration is regarded as an admini-strative proceeding. There is a number of other disputable issues open for further discussion: shall the public authority be delegated only by means of a legislative act or agreement, and who is to scrutinize these processes; what is the inter-relation between the administrative procedure and the inspection procedure (in terms of general and subject-specific administrative procedures, or special admini-strative proceedings); can the administrative procedure institutes be accordingly applied in the inspection procedure (e.g., “silence” of the inspection); what is the statutory time limit for the validity of interim administrative decisions; are the extraordinary legal remedies justifiable; is it practicable to shorten the time limit for issuing a decision; is the favorable concept of administrative silence sustainable; what are the legal effects of the E-governance procedure, etc.

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