Contemporary Concepts of Administrative Procedure. Between Legalism and Pragmatism
Contemporary Concepts of Administrative Procedure. Between Legalism and Pragmatism
Contributor(s): Zbigniew Kmieciak (Editor)
Subject(s): Law, Constitution, Jurisprudence, EU-Legislation, Administrative Law
Published by: Wydawnictwo Uniwersytetu Łódzkiego
Keywords: Public Administration; Administrative Procedure; Union Law; Administrative Law
Summary/Abstract: The aim of this volume is to compare various types of administrative procedure and show their similarities and differences in national, European and global dimensions. The Authors’ intention is also to capture the regularities governing the development of law on administrative proceedings, including answers to the following questions: 1) is there a genetic relationship between the three generations of procedures, or do they derive from the separate ideas of national legislatives (genetic peculiarities)? 2) to what extent did modern procedures become the subject of national codifications? 3) what are the characteristics of national participatory procedures? 4) what are the national experiences in the field of “coexistence” of the three generations of administrative procedures? 5) where is the boundary between pragmatism and legalism of administrative procedures, for example in the case of urgent or simplified, automated and mass procedures? 6) does the increasing complexity of social life necessitate new solutions to integrate standards of the Rule of Law (traditional procedural values) with requirements of procedural pragmatism and efficiency? 7) are the new solutions in contradiction with the idea of multi-aspect protection of interests in administrative procedure?
Series: Uniwersytet Łódzki
- E-ISBN-13: 978-83-8220-928-0
- Print-ISBN-13: 978-83-8220-927-3
- Page Count: 304
- Publication Year: 2023
- Language: English
Introduction: The Evolvement and the Current Condition of Administrative Procedure Law in European Countries
Introduction: The Evolvement and the Current Condition of Administrative Procedure Law in European Countries
(Introduction: The Evolvement and the Current Condition of Administrative Procedure Law in European Countries)
- Author(s):Zbigniew Kmieciak
- Language:English
- Subject(s):Economy
- Page Range:7-17
- No. of Pages:11
- Summary/Abstract:The aim of this volume is to compare various types of administrative procedure and show their similarities and differences in national, European and global dimensions. The Authors’ intention is also to capture the regularities governing the development of law on administrative proceedings, including answers to the following questions: 1) is there a genetic relationship between the three generations of procedures, or do they derive from the separate ideas of national legislatives (genetic peculiarities)? 2) to what extent did modern procedures become the subject of national codifications? 3) what are the characteristics of national participatory procedures? 4) what are the national experiences in the field of “coexistence” of the three generations of administrative procedures? 5) where is the boundary between pragmatism and legalism of administrative procedures, for example in the case of urgent or simplified, automated and mass procedures? 6) does the increasing complexity of social life necessitate new solutions to integrate standards of the Rule of Law (traditional procedural values) with requirements of procedural pragmatism and efficiency? 7) are the new solutions in contradiction with the idea of multi-aspect protection of interests in administrative procedure?
- Price: 4.50 €
Towards a Contemporary Understanding of Administrative Procedure
Towards a Contemporary Understanding of Administrative Procedure
(Towards a Contemporary Understanding of Administrative Procedure)
- Author(s):Javier Barnes
- Language:English
- Subject(s):Economy, Law, Constitution, Jurisprudence, Public Administration, Public Law, Administrative Law
- Page Range:21-40
- No. of Pages:20
- Keywords:administrative procedure; administrative procedure acts
- Summary/Abstract:The bulk of official legal decisions are made not by judges, nor by legislature, but by public administrations. Behind these decisions are administrative procedures, understood as the rules governing the process of decision-making: from administrative sanctions, to public procurement, from ministerial regulations supplementing a statute, to urban planning developing and designing the land use. “Administrative procedure” ultimately refers to a how governmental organizations actually conduct business and manage responsibilities. Today there are a bewilderingly large and diverse number of administrative procedures. Whilst the first general administrative procedure acts (APAs) focused on the so-called “administrative act” (typically a unilateral decision made by public bodies), their reach progressively broadened as the responsibilities of the executive branch and public administrations grew. APAs branched out to deal with other legal acts, such as rules and regulations, agreements under public law, guidelines and administrative guidance, as well as setting general principles to which administrative activities would be subject. The different models on which most administrative procedures are based differ deeply from each other and require a different legal approach regarding their basic elements: from the main types of administrative procedure to their general procedural principles; from infringement sanctions of procedural rules to judicial review, and so forth. A contemporary theory of administrative procedure – and an updated APA – will thus have to assume a broader concept.
- Price: 4.50 €
About Subjective Rights in Procedural. Administrative Law
About Subjective Rights in Procedural. Administrative Law
(About Subjective Rights in Procedural. Administrative Law)
- Author(s):Jean-Bernard Auby
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:41-47
- No. of Pages:7
- Keywords:procedural administrative law; subjective rights; subjective aspects
- Summary/Abstract:In the recent past, our procedural administrative laws have been enriched with an array of subjective aspects – on the people’s side – and of rights attributed to the people in their dialogue with the administration. Such evolution reflects their growing adhesion to fundamental rights and to a more balanced vision of the relationship between citizens and the state. One can only anticipate that it will be confirmed in the future and even extended to new species of subjective procedural rights.
- Price: 4.50 €
The Concept of an Individual Right under Union Law
The Concept of an Individual Right under Union Law
(The Concept of an Individual Right under Union Law)
- Author(s):Herwig C.H. Hofmann, Catherine Warin
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, EU-Legislation, Administrative Law
- Page Range:49-63
- No. of Pages:15
- Keywords:Union law; individual right; Court of Justice of the EU
- Summary/Abstract:After six decades of development of EU law, individual rights under EU law are subject to divergent conceptual understandings. This is problematic since the notion of an individual right is central to the EU’s legal system and its implementation. Under the principle of ubi ius ibi remedium, the identification of an individual right grants access to judicial protection before national courts and the Court of Justice of the EU (CJEU), including in the context of claims to damages for violations of EU law. The concept of an individual right defines and delimits the scope of the possible direct effect of EU law in its Member States’ legal systems and is the distinctive characteristic distinguishing rights from principles under the EU Charter of Fundamental Rights. The notion is thus a central matter for EU constitutional law as well as EU administrative law. This article discusses various approaches to the concept and reviews how consistent interpretation and application of EU legal acts by Union bodies as well as by Member States legislatures, administrations and courts under a single notion of individual right under EU law could be possible.
- Price: 4.50 €
Evolution of Subjective Scope of the Administrative Procedure from a Perspective of Legally Protected Interests. Towards New Grounds of Participation in the Administrative Proceedings
Evolution of Subjective Scope of the Administrative Procedure from a Perspective of Legally Protected Interests. Towards New Grounds of Participation in the Administrative Proceedings
(Evolution of Subjective Scope of the Administrative Procedure from a Perspective of Legally Protected Interests. Towards New Grounds of Participation in the Administrative Proceedings)
- Author(s):Marcin Kamiński
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:65-80
- No. of Pages:16
- Keywords:administrative procedure; legally protected interests; administrative proceedings
- Summary/Abstract:The Chapter deals with the theme of evolution of the subjective scope of administrative procedure. The underlying object is to consider the theoretical sources and phases of the development of legally protected interests in the administrative proceedings. The analysis begins with the presentation of administrative proceedings (procedures) conceptions. In the following parts of the study, there are considered, according to the chronology of creation, three models of the administrative procedure: adjudicatory model, rulemaking and policymaking model, deliberative and collaborative model. These considerations are conducted from the perspective of evolution of the subjective scope of procedures. The main attention is focused on the notion of legal interest (both public and private) as the fundamental premise that legitimizes participation in administrative procedures. The theoretical analysis leads to the conclusion that certain categories of the legal interests protected by the administrative law norms emerged in the course of development of the next generations of ad ministrative procedures. The bipolar model of the subjective structure of administrative proceedings was gradually shifting towards a multi-polar model of interest representation. The latter one – present in rulemaking (policymaking) and collaborative procedures – enables participation in the proceedings of both directly or indirectly affected entities and the public interest groups or individuals who are members of those groups and have diffused interests which are not individualized.
- Price: 4.50 €
Generations of Administrative Procedure in the Netherlands: Towards a Third Generation?
Generations of Administrative Procedure in the Netherlands: Towards a Third Generation?
(Generations of Administrative Procedure in the Netherlands: Towards a Third Generation?)
- Author(s):Ymre Schuurmans, Joyce Esser
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:81-94
- No. of Pages:14
- Keywords:administrative procedure; Netherlands; third generation
- Summary/Abstract:In this chapter, three generations of Dutch administrative procedural law are identified and discussed. The first generation is characterized by appeal procedures within the administration, among which the appeal to the Crown. This generation did not focus on the protection of individual rights, either procedural or substantive. Rooted in a formal Rechtsstaat conception, subjective rights against the state were thought to compromise the sovereignty of the state. Instead, administrative appeal was meant to uphold the quality and legality of decision-making and therefore the common good. Although this did not necessarily preclude assigning procedural rights to parties, the legislator thought extensive procedural law would jeopardize administrative efficiency. During the first half of the 20th century, specialized and independent law courts were created, but these mainly followed the design of the administrative appeal procedure, focusing on legality review. Although this often resulted in a form of accessible and inexpensive legal protection, the first generation’s procedural law did most certainly not turn around the concept of parties. Throughout the 20th century, independent judicial review began to gain ground, especially after the ECHR judged the appeal to the Crown in violation of the right to a fair trial. At the same time, the intellectual idea began to take hold that the goal of administrative procedure should be individual legal protection. In 1994, the General Administrative Law Act (GALA) came into force, signaling the start of the second generation of procedural law. Although the legislator explicitly chose individual conflict resolution as the main goal of administrative procedure, the foundational reorientation remained incomplete. Leaving many of the first generation’s characteristics, such as legality review of single administrative decisions, intact, while at the same time assuming an increased responsibility for litigants, the GALA turned out to foster a climate of efficiency, echoing the spirit of the first generation’s focus on the public good. Furthermore, the focus on individual legal protection hampered the development of procedural law for collective decision-making procedures like rulemaking or policy instruments. Over the last years, the incapacity of administrative law to adequately deal with some major crises of governance have highlighted the vulnerable design of the second generation’s procedural law. On the one hand, the GALA does not effectively protect the individual, as Dutch administrative law lacks certain procedural safeguards and substantive individual rights to do so. On the other hand, the GALA fails to adequately tackle the collective dimension underlying many major administrative problems, by scattering policy conflicts and bureaucratic failure in single law cases on single decisions. Currently, many proposals are made to rectify these tendencies. A common theme in these is the turn to constitutional values and safeguards within administrative law, such as human rights protection and enhancing democratic control. Accordingly, a steady maturation of a more substantive and responsive notion of the Rechtsstaat emerges. Together, these developments show how individual rights protection and enhancing collective decision-making procedure are not antithetic, but, when integrated in an overarching design, can strengthen each other. Although it might be too early to speak of a definitive third generation, contemporary developments like digitalization can be excepted to only contribute to the contours of a new procedural law, fit for the 21st century.
- Price: 4.50 €
Locus standi in Administrative Procedure
Locus standi in Administrative Procedure
(Locus standi in Administrative Procedure)
- Author(s):Joanna Wegner
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, EU-Legislation, Administrative Law
- Page Range:95-106
- No. of Pages:12
- Keywords:locus standi; administrative procedure; EU law
- Summary/Abstract:The chapter deals with a theme of the evolution of the standing in the administrative procedure of the first generation type. The author explains the roots of the concept of legal interest as the basis of the institution of the party to the administrative procedure. What is also highlighted, is that there is a variety of legal grounds for access to the proceedings, far different from, exclusive for the party, substantive provision of law. Some of them could be seen in the pattern for first codifications, namely the Austrian Act of 1925. What is interesting, is that binding regulation is far more restricting in terms of the participation in administrative proceedings than the pre-war provisions. It does not include nor the regulation about the person concerned or about the participatory-type procedures. Over time, this state of regulation has become difficult to accept, because it has turned out that the substantive legal interest is not always an adequate criterion for the participation of an individual in administrative proceedings. The transformations of the modern world, reflected in the regulations of substantive law, especially EU law, force a constant expansion of the catalogue of participants in administrative proceedings. It can be observed that, in a sense, the legislator returns to the idea that guided the first codifications of the law on administrative proceedings, although it is realised outside the Code. These remarks lead to conclusions about the common origin of the first generation procedure and contemporary participatory-type proceeding
- Price: 4.50 €
The Adventures and Misadventures of Participation in Administrative Proceedings in the Light of the Italian Experience
The Adventures and Misadventures of Participation in Administrative Proceedings in the Light of the Italian Experience
(The Adventures and Misadventures of Participation in Administrative Proceedings in the Light of the Italian Experience)
- Author(s):Roberto Caranta
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:107-120
- No. of Pages:14
- Keywords:administrative proceedings; Italy; Feliciano Benvenuti
- Summary/Abstract:Administrative procedures are very many and much varied in Italy. They follow different rules and the risk in studying administrative procedures is to see the trees while missing the forest. The Italian rules on administrative procedures pursues a number of contradictory aims. These have been piling up one upon other in well over one century. The original emphasis on the protection of property and business rights while keeping a strong focus on the overriding powers of the administration left room for a participatory approach which, however, was not without limitations and difficulties, including the fact that, from a law in action perspective, the bureaucracy simply lacked the will and the capacity to really work under those different rules. This chapter will follow this many pronged evolution process, starting with the origin of participation seen as a tool for the defence of freedom and property rights in the second half of the 19th century (§ 2). The dogmatic description of administrative procedures was perfected in the early ‘40s by Aldo M. Sandulli (§ 3). A new generation of scholars under the guide of Feliciano Benvenuti set to change our understanding of administrative procedures, putting the participation at the centre of administrative law; this drive that lead to the l. 7 August 1990, n. 241, the general administrative procedure and right of access law (the GAP Law 1990) (§ 4). The shortcomings of the GAP Law 1990 will be highlighted next, along with further limitations to participation introduced in 2005 and thereafter in order to answer to the needs of increased efficiency brought about by European integration first and by a series of apparently never ending crises later (§ 5). Short conclusions will try to highlight the contradictions in the Italian approach to administrative procedures and participation (§ 6).
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Purposes and Regulatory Structure of Administrative Procedures in Spain
Purposes and Regulatory Structure of Administrative Procedures in Spain
(Purposes and Regulatory Structure of Administrative Procedures in Spain)
- Author(s):Eduardo Gamero Casado
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:123-146
- No. of Pages:24
- Keywords:Spain; administrative procedures
- Summary/Abstract:Spain was the first country to enact the Administrative Procedure Act, in 1889. It has an extremely protracted legal tradition in this area. This paper explains how this legislation on common administrative procedure has developed and how it has been structured and explains the purposes underlying these norms, allocation of jurisdictional authority in this area among the different political actors, and the existence of special common laws in specific areas to supplement the general provisions of the Spanish Common Administrative Procedure Act (CAPA) [Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas]. Administrative procedure has two main roles in Spain. According to the Constitutional Court, the two are complementary: one is to guarantee citizens’ rights, the other is to ensure that administrative decision-making reliably safeguards the underlying public interest. It also serves as a channel for citizens to participate in decision-making, an expression of democratic principles. Today a premium is being placed on simplifying procedure and shifting the traditional focus from due administrative procedures towards a new concept of proper administrative procedure, i.e., one that can better fulfil its overall function, shifting from Good Administration to better (and smart) regulation.
- Price: 4.50 €
Thirty Years with the Administrative Procedure Act: A View from Italy
Thirty Years with the Administrative Procedure Act: A View from Italy
(Thirty Years with the Administrative Procedure Act: A View from Italy)
- Author(s):Giacinto della Cananea, Angela Ferrari Zumbini
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:147-161
- No. of Pages:15
- Keywords:administrative procedure act; Italy; legalism; pragmatism
- Summary/Abstract:Two years ago there was the 30th anniversary of the general legislation governing administrative procedure (Act of Parliament, 7 August 1990, n. 241). The question that arises is whether, as we suggest in the title of this Chapter, the last thirty years can be viewed in terms of discontinuity with the past. The object of this Chapter is not to provide an overview of that topic. Its aim is, rather, to focus more closely on some issues of more general interest from a comparative perspective. The argument is structured as follows. Section 2 briefly illustrates the background. Section 3 discusses the legal status of administrative procedure legislation. This is followed by an analysis of the main functional and structural features of the general law governing administrative procedure. Sections 5 and 6 discuss the interplay between legalism and pragmatism from a twofold point of view; that is, legislation and its judicial interpretation. The final Section is dedicated to some concluding remarks. Among others, it argues that the Italian case is interesting because it shows that the adoption of an APA, laying down general principles rather than a detailed regulation of the structure which every administrative procedure should have, does not necessarily have a negative impact on judicial creativity. Quite the contrary, administrative courts have continued to refine general principles. They also interpreted and adapted the provisions of the APA to the felt necessities.
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Is Serbian Administrative Procedure Red, Green, or Forever Amber?
Is Serbian Administrative Procedure Red, Green, or Forever Amber?
(Is Serbian Administrative Procedure Red, Green, or Forever Amber?)
- Author(s):Dejan Vučetić
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:163-178
- No. of Pages:16
- Keywords:Serbia; administrative pocedure; sector-specific administrative procedures
- Summary/Abstract:In this Chapter, the author provided answers to six proposed research questions from the perspective of Serbian administrative law. The research has shown that there are two models of administrative procedure, which have different origins and are loosely correlated. The focal point of this research was the second model and its underlying principles (such as efficiency and effectiveness), as well as the necessary elements of legislative acts regulating sector-specific administrative procedures which are set in the Act on the Registry of Administrative Procedures 2021. The second central research issue were the participatory mechanisms for the inclusion of the wider public into administrative procedure (the interested person, representatives of collective interests and representatives of the general public interest) and the controversies related to their partially regulated procedural position. The author proposes several solutions for resolving the dilemma on setting the boundary line between legalism and pragmatism. As a general rule, legality shall prevail in administrative procedures involving ordinary citizens; on the other hand, pragmatism shall be given priority in case of business-related proceedings and procedural communication between administrative authorities and parties. Finally, given the increasing complexity of administrative procedure law and strong differentiation of administrative functions, the author underscores the growing importance of sector-specific administrative procedures.
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Germany and Administrative Procedure: No Love Lost
Germany and Administrative Procedure: No Love Lost
(Germany and Administrative Procedure: No Love Lost)
- Author(s):Philipp Reimer
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:179-195
- No. of Pages:17
- Keywords:administrative procedure; Germany
- Summary/Abstract:German public law tends to choose substance over procedure, according the latter only an “ancillary function”. To justify this thesis, a short history of the relevant legislation and the current state of law are presented. Administrative procedure was long of limited interest, its regulation is fragmentary, and procedural errors are deemed irrelevant in many cases. While the “intrinsic value” of procedure has been discussed in academia over the last decades, the law has changed almost only to the extent that European Union directives forced it to (notably on environmental matters). In this respect, procedural rules have become rather more important, sometimes to the detriment of efficiency. Overall, however, the standard administrative procedure of the adjudicational type still dominates the picture in German administrative law, with everything else being considered an exception to the rule.
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Coexistence of Traditional and Modern Administrative Proceedings and Acts in Public Administration in the Czech Republic
Coexistence of Traditional and Modern Administrative Proceedings and Acts in Public Administration in the Czech Republic
(Coexistence of Traditional and Modern Administrative Proceedings and Acts in Public Administration in the Czech Republic)
- Author(s):Kateřina Frumarová
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:197-208
- No. of Pages:12
- Keywords:Czech Republic; public administration; administrative proceedings and acts
- Summary/Abstract:The chapter deals with the current concepts of administrative proceedings and new forms of public administration activities in the Czech Republic. The Czech legal regulation of administrative proceedings was based on the traditions of the Austro-Hungarian Empire legal construction and for a long time the traditional model of administrative proceedings was the only or at least its dominant type. However, in the last twenty or thirty years, the situation is changing significantly, and this legal regulation is beginning to reflect new modern tendencies concerning, among other things, procedural forms and measures for their implementation. These new trends are also notably reflected in the current legislation on administrative procedural law, namely in the Czech Administrative Procedure Code. The Czech legislator is well aware that a modern public administration shall implement its tasks and goals not only in the form of a traditional procedure. Public administration should serve the public and follow the principles of “good governance”. It is the new procedures that are the subject of the Administrative Procedure Code that are intended to help achieve this goal. This involves, for example, enshrining the institute of a measure of a general nature, which enables the protection of the rights and interests of wider groups of addressees of administration activities, not just the participants to proceedings. This strengthens the principle of participation, openness and democratization of the public administration. The new types of proceedings are further characterized by the fact that they are less formalized, simplified, and intended to “replace” the existing traditional administrative proceedings. As examples can be given: subordinating public contracts or issuing the so-called permits in construction law. Owing to these legal constructions the principle of speed and economy in the performance of public administration is implemented. Both the traditional and new administrative procedures and acts are significantly regulated and codified in the Administrative Procedure Code. It is the Administrative Procedure Code that addresses another fundamental issue related to this problematic. It is a certain necessary degree of legal regulation of all the procedures of public administration bodies (traditional and modern) and meeting the minimum standards for protection of the rights of interested persons and the public interest. Setting the boundaries between procedural pragmatism and efficiency on the one hand and the rule of law on the other hand is not an easy task. The Czech legislation has chosen a suitable solution, which consists of enshrining the so-called basic principles of the activity of administrative bodies in the Administrative Procedure Code.
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Relations Between the Procedures for Issuing Individual and General Administrative Acts and Making “Administrative Regulations”
Relations Between the Procedures for Issuing Individual and General Administrative Acts and Making “Administrative Regulations”
(Relations Between the Procedures for Issuing Individual and General Administrative Acts and Making “Administrative Regulations”)
- Author(s):Marek Szewczyk, Ewa Szewczyk
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:209-228
- No. of Pages:20
- Keywords:general administrative acts; individual administrative acts; administrative regulations
- Summary/Abstract:The directions of the development of administrative proceedings analysed on the example of the norms of several European countries and the USA (due to the apparent inspiration for some European countries) lead to the conclusion that there is a genetic link between jurisdictional proceedings, ending with the issuance of a decision in an individual case of public administration, and administrative proceedings, ending with the issuance of a general administrative act. It is expressed in the fact that an administrative proceeding conducted in the case of an individually defined entity belongs to the same category as an administrative proceeding in which a general administrative act is issued. Both types of these proceedings belong to the institution of law application. In addition, both institutions apply norms belonging to the same branch of law, namely administrative law. Such a relationship also exists between individual administrative acts and general administrative acts addressed directly to a group of unidentifiable persons, or even to the general public, as well as general administrative acts conferring public-law status to various types of products, in the issuance of which it is not possible to comply with all the procedural requirements applicable to the issuance of individual administrative acts. By contrast, it is difficult to find a genetic link between the procedures for issuing these acts and the proceedings under which the so-called “administrative regulations” are made. These are completely different proceedings in terms of category: the first is an institution of law application, and the second – within the framework of which the mentioned “administrative regulations” are issued – is an institution of lawmaking. he authors do not comment on the effectiveness of the use of procedures for issuing individual administrative acts, general administrative acts and also the so-called administrative regulations. They assume that taking a stand on this issue would require thorough research using sociological methods, i.e. studying law in action. No conclusions can be drawn in this regard based solely on the results of research using the dogmatic method.
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Discovering Long Forgotten: Settled Administrative Practice in the Czech Administrative Procedure
Discovering Long Forgotten: Settled Administrative Practice in the Czech Administrative Procedure
(Discovering Long Forgotten: Settled Administrative Practice in the Czech Administrative Procedure)
- Author(s):Zdeněk Kühn
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:229-238
- No. of Pages:10
- Keywords:administrative procedure; Czech Republic; Czech Constitutional Court; Supreme Administrative Court
- Summary/Abstract:The Chapter analyses the issue of settled administrative practice (established modes of decision making of the administrative authorities or on the contrary their long term inactivity with regards to some legal or factual issues). Within the last two decades, the case law of the Czech Constitutional Court and the Supreme Administrative Court has developed the notion of settled administrative practice and its legal protection (or to be precise, the protection of the addressees’ trust in the continuing use of those practices). The paper analyses its normative force, including the question to what extent it is binding, relation to the statutory law it interprets as well as the possibility and potential of law making force of the settled practices. According to the case law of the Supreme Administrative Court, which further elaborates on case law of the Constitutional Court in this regard, the administrative practice established in the past can only be changed with effects pro futuro. What remains deeply controversial is the issue of practices that are contrary to the law.
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Legal Protection from Acts of Disposal in the Legal System of the Republic of Croatia
Legal Protection from Acts of Disposal in the Legal System of the Republic of Croatia
(Legal Protection from Acts of Disposal in the Legal System of the Republic of Croatia)
- Author(s):Dario Đerđa
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:239-254
- No. of Pages:16
- Keywords:Republic of Croatia; legal protection; acts of disposal in the legal system
- Summary/Abstract:This paper aims to show the illogicality of excluding some decisions of administrative bodies in Croatia from the scope of legal protection by misclassifying them into a separate category. To this end, the paper first presents the mechanisms for ensuring the legality of administrative bodies’ actions. Then, it presents the ways of legislative determination of the legal nature of administrative decisions, thereby emphasizing the practical consequences of the legislator’s inconsistent approach. Cases are analyzed in which the Constitutional Court of the Republic of Croatia, after three decades, decided to underscore the inadmissibility of a narrow interpretation of the legal nature of some administrative decisions and the need for comprehensive judicial protection of individuals’ rights from any administrative decision. Finally, the paper proves that there is no justifiable reason to exclude some acts of disposal from administrative courts’ scope of legal protection, contrary to the legislator’s understanding.
- Price: 4.50 €
Who Rules the Administrative Procedures? Rulemaking in the Public Administration
Who Rules the Administrative Procedures? Rulemaking in the Public Administration
(Who Rules the Administrative Procedures? Rulemaking in the Public Administration)
- Author(s):Csaba Molnár
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:255-271
- No. of Pages:17
- Keywords:administrative procedures; public administration; rulemaking, Hungary
- Summary/Abstract:The chapter is looking for the answer for the question mentioned in title, namely who is authorized to establish procedural rules in the administrative proceedings in Hungary. In the second half of the 20th century and in the early years of the 21st century a new trend appeared in the legislation; the public administration started to create laws which are used in their administrative cases taking responsibility for their content. This new trend is called rulemaking power of public administrative bodies, regulatory authorities. I am looking for the constitutional and legal policy reasons of the rulemaking comparing it to the legislation of the Hungarian Administrative Procedure Law. The chapter contains a dogmatic presentation on independent regulatory authorities highlighting the Hungarian peculiarities in the public administration, namely administrative structural position and the lawmaking power of these organs, given to them by the provisions of the Hungarian Constitution, the so-called Fundamental Law. At the second part of the chapter the concept and the general regulation of the Code of the General Administrative Procedure is presented focusing on the topic in which form the legislator is entitled to establish different rules from the Code. The representation of interest of citizens and stakeholders is a key aspect in the rulemaking models, so the last part of the chapter focuses on the Hungarian regulation of the public participation in the legislation.
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Trends in the Administrative Procedures of Denmark
Trends in the Administrative Procedures of Denmark
(Trends in the Administrative Procedures of Denmark)
- Author(s):Bent O. Gram Mortensen, Frederik Waage
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:273-288
- No. of Pages:16
- Keywords:Denmark; administrative pocedures; EU-law
- Summary/Abstract:This article explores common trends within Danish administrative law of the 21st century. The Danish and the Nordic legal tradition is introduced as a starting point. Nordic countries are in many ways similar when it comes to administrative law, partly because the same welfare state model applies to all of them. EU-law is of considerable importance to Danish administrative law. To the extent that administrative law rules implement EU-legislation, the acquis communautaire is applied, and EU-law has a profound influence on sub-disciplines of administrative law such as environmental law, public procurement law and data protection law. The European Convention on Human Rights has also influenced Danish administrative law. However, more than any other factor, the development of general principles of administrative law has been of importance within this area. These principles are today partly codified in legislative acts. The age of digitalization has led to new opportunities as well as challenges for Danish administrative law. The Danish central administration, municipalities and regions are highly digitalized. While digitalization promotes efficiency, it is also a challenge and the article draws a distinction between digitalization which assists the case handler in the assessment, and digitalization which substitutes the assessment conducted by the case handler. The technological advantages have so far not made it possible to replace ordinary decision making with an algorithm. The Danish Parliamentary Ombudsman has developed a number of rules on how digitalized case handling can be conducted properly. Having explored the frame of administrative law in the modern Danish society, the article continues to describe two administrative law cases which have gained massive attention in the latest years among jurists and the general public. The first introduces the reader to the first Danish impeachment trial for more than 25 years. The case involved separation of asylum-seeking couples. The second case demonstrates how a breach of the legality principle has led to a major political scandal amidst the Covid-19 pandemic. The article concludes that the general principles of law still play a leading role in Danish administrative law.
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Alternative Dispute Resolution in Administrative Relations de lege ferenda: The Case of Slovenia
Alternative Dispute Resolution in Administrative Relations de lege ferenda: The Case of Slovenia
(Alternative Dispute Resolution in Administrative Relations de lege ferenda: The Case of Slovenia)
- Author(s):Bruna Žuber
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Administrative Law
- Page Range:289-301
- No. of Pages:13
- Keywords:Slovenia; de lege ferenda; administrative pocedures
- Summary/Abstract:The article addresses alternative dispute resolution in administrative relations in the Republic of Slovenia de lege ferenda. Alternative dispute resolution in administrative relations is a concept of high importance in the field of modern administrative procedural law, which in Slovenia is still only in its deployment phase. Alternative dispute resolution in administrative relations represents a further option for dispute resolution in addition to established ways of dispute resolution in administrative procedures and administrative disputes. As a rule, alternative resolution of disputes speeds up the resolution of disputes, providing for a more flexible procedure, but above all enables tailoring to the specific needs of individual disputes. The article sets out the established means of alternative dispute resolution in administrative procedures and administrative disputes. Despite the fact that the legislation provides for some of the means of alternative dispute resolution, these means are seldom used in practice. The article focuses on the trends in the development of alternative dispute resolution in administrative relations. The objective of the article is to show that means of alternative dispute resolution can also be used in administrative law and that their employment in practice may contribute to a significantly greater degree of decision-making efficiency in administrative procedures and administrative disputes
- Price: 4.50 €
