week 7 Flashcards
how to regulate with administrative discretion?
=> discretionary powers refer to the ability of administrative authorities to apply rules with a degree of latitude
=> discretion is required to enable effective and efficient public administration
=> sometimes administrative decisions are binding
=> administrative discretion is structured and confined, and can be reviewed to a certain extent
=> the administrative court can assess the suitability, necessity and proportionality strict sense of the administrative action
principles of good administration?
=> no uniform principles
=> however, there are generally agreed upon principles
- principle of proportionality
- equal treatment
- efficiency
- transparency
- diligence
- absence of abuse of power
=> three dimensions:
- efficiency and quality dimension: is the public interest pursued in a proper and efficient manner?
- procedural dimension: what procedural guarantees are in place for citizens?
- public interest dimension: what public interest is involved with the administrative action?
how are principles of good administration relevant in practice?
=> principles of good administration underly:
a. standard of good administration
b. rights to good administration
standards of good administration?
=> 5 standards that we discuss:
- getting it right
- being customer focused
- being open and accountable
- acting fairly and proportionately
- putting things first
getting it right?
- acting in accordance with the law and with regard for the rights of those concerned
- acting in accordance with the public body’s policy and guidance (published or internal)
- taking proper account of established good practice
- providing effective services, using appropriately trained and competent staff
- taking reasonable decisions, based on all relevant considerations
being customer focused?
- ensuring people can assess services easily
- informing citizens what they can expect and what the public body expects of them
- keeping to its commitments, including any published service standards
- dealing with people helpfully, promptly and sensitively, bearing in mind their individual circumstances
- responding to customers needs flexibly, including, where appropriate, coordinating a response with other service providers
being open and accountable?
- being open and clear about policies and procedures and ensuring that information, and any advice provided, is clear, accurate and complete
- stating its criteria for decision making and giving reasons for decisions
- handling information properly and appropriately
- keeping proper and appropriate records
- taking responsibility for its actions
acting fairly and proportionately?
- treating people impartially, with respect and courtesy
- treating people without unlawful discrimination
- or prejudice, and ensuring no conflict of interests
- dealing with people and issues objectively and consistently
- ensuring that decisions and actions are proportionate, appropriate and fair
putting things right?
- acknowledging mistakes and apologizing where appropriate
- putting mistakes right quickly and effectively
- providing clear and timely information on how and when to appeal or complain
- operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld
rights to good administration?
=> one or more principles also underly the rights to good administration, which can function as the legal basis to claim your rights
=> the principles can be implemented as such
- according to the regulatory technique: principle-based regulation
=> they can also be implemented in more concrete norms
can citizens complain about maladministration?
the ombudsperson
=> the Swedish Ombudsman dates back to the Swedish Constitution of 1809
=> currently, 23 EU MSs have a national ombudsperson
=> large number of national and regional ombudsperson institutions throughout the world
=> specialized ombudsperson institutions include: veterans ombudsman, anti-corruption & civil rights commission, Jordanian integrity and anti-corruption commission
=> for an effective ombudsperson, some requirements have to be met:
- maintaining independence
- maintaining neutrality and respectability of ombudsman
- high standard of democracy (individualized decision-making)
=> media support
=> recognition of the ombudsperson institution
competence of the civil and administrative court?
=> initiating legal action: it mainly depends on whether it concerns factual acts of the administrative authority, or whether it concerns on administrative decision
administrative procedure?
=> decision-making processes. standards of good administration guide the administrative decision-making procedures
=> administrative decision
=> administrative appeal can be initiated by submitting a statement of objections (that objection is sent to the same authority that issued the decision in the first place, and it reviews it again in light of that objection. there, the administrative authority has a second chance to review their standards of good administration)
=> the rights to administrative appeal are generally provided by the general administrative law act/general administrative procedure act
=> standards of good administration guide the administrative decision-making procedures (ex: information gathering, protection of rights of parties…)
jurisdiction of the courts?
=> often, location of the public authority
=> other cases: location of the litigant
=> legislation may designate other courts
legal standing?
several criteria (depending on the country and the area of law):
1) recipient of the individual decision
OR
2) individual, personal, objective, current and directly involved interest in the decision
5 criteria that are important if you are NOT the direct recipient:
=> individual interest: you have to be affected to a certain degree by the decision; have to distinguish yourself from others
=> personal interest: you have to litigate for yourself , cannot litigate for someone else’s interest
=> objective interest
=> current interest
=> directly involved interest
judicial review?
=> administrative phase (full review, legality, incl. exercise discretion)
- statement of objections (same public authority)
- administrative appeal (hierarchically higher public authority)
=> judicial phase (mainly legality issue)
- court of first instance (sometimes specialized tribunals, depending on the country)
- further appeals to higher courts and, in some cases, supreme administrative courts
=> how is this assessed? has the public authority used a power for a purpose not allowed by the legislation (= ultra vires)?
=> has the administrative authority acted reasonably?
- also assess the suitability, necessity and proportionality stricto sensu of the administrative action
=> types of illegality:
- decision maker acting ultra vires, e.g. unlawfully delegating power of fettering discretion
- taking into account irrelevant considerations
- irrationality (obligation to act reasonably)
- procedural impropriety (e.g. failure to give each party to a dispute an opportunity to be heard)
=> an error of fact means in a ruling, the wrong facts were used or interpreted incorrectly
=> an error of law means that the ruling had all of the right information, but you think the law wasn’t applied correctly
=> different forms of decisions by the administrative court: e.g. confirm, annul, replace
