Administrative law Flashcards
What areas of law fall under the broad definition of public law?
- International law
- Constitutional law
- Criminal law
- Administrative law
- Labour law
What areas of law fall under the narrow definition of public law?
- Constitutional law
- Administrative law
Explain the statement: ‘Administrative law is both ‘of’ the state and ‘against’ the law’
There is a problematic but necessary tension between ‘effective government’ (capable administration) and ‘protection of individual rights’ (accountable administration)
Define: administrative law
The law regulating the public administration (‘executive function’ of the State) and its relationship with citizens.
What are the three powers in trias politica?
- Legislative power
- Executive power
- Judicial power
Define: rechtstaat / rule of law
administrative actors should be conferred determined powers by law (Act of Parliament) for specific purposes (principle of legality)
Define: discretion
the legislative power cannot legislate on every single aspect of society due to:
- Need for customization (maatwerk)
- Technological development
Therefore, administrative actors need some flexibility, freedom to apply the rules to fulfill their tasks
What are the principles of good administration?
- Principle of lawfulness;
- Principle of non-discrimination / equal treatment;
- Principle of legal certainty (e.g. if you have assured someone a license but the regulations change, you should still grant them the license);
- Principle of proportionality (maybe a hard line is too strict and additional rules should be imposed to fit the specific case);
- Principle of legitimate expectations (good investigations have to take place before decision-making);
- The right to a fair hearing before an adverse decision is taken;
- The right to have one’s affairs handled impartially and fairly.
What are the three stages of administrative decision-making?
1. Preparation o Legal basis (competence) o Principles o Input from stake-holders? 2. Administrative o Administrative decision o Reconsideration (if appealed) 3. Judicial o Judicial review (if applied for)
What are the sources of administrative law (general)?
- International Treaties, EU Law
- Constitution
- Statutes / Act of Parliament (legislation)
- General legislation: ‘Administrative procedure acts’ (APA) / General Administrative Law Act
- Sector specific legislation (Telecommunications Act, Migration Act, etc.) - Delegated rulemaking (agency regulations, governmental decrees, executive orders).
- Case-law
Name examples of the first three sources of administrative law and data.
- International Treaties, EU Law
- Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
- Convention of Tromsø on Access to Official Documents
- General Data Protection Regulation (EU)
- Open Data and re-use Directive (2019/1024/EU) - Constitution
- Right to government information / right to privacy - Statutes (legislation)
- General Administrative Law Act (access to documents)
- Freedom of Information Acts (FOIA) / Data protection legislation / Archiving Act
Explain the GALA.
General Administrative Law Act (GALA):
- Objectives
- Harmonization: more uniformity across different sectors
- Codification (of case-law) - Contents
- Communication between public bodies and citizens (in general; e.g. use of language)
- Administrative decision-making (general rule and/or single case; e.g. publicity of administrative decisions)
- Judicial procedures (e.g. access to documents in proceedings) - Scope:
- Public bodies
- Administrative action in general and decision-making in particular
How do you decide on an administrative issue?
Checklist:
- Regulatory framework: Which laws and regulations regulate this problem (sources)?
- Applicability 1: Do these laws and regulations apply to me (scope)?
- Applicability 2: Does the concrete situation fall under these obligations?
What are public bodies (by nature)?
- State o Parliament o Government o Ministers / Departments - Provinces - Municipalities
How does an organization become a public body?
- By nature o Established by statute - Trough competence o Awarded ‘statutory powers’ - Through organization o Part of another public body
