Transcript Prezentacja programu PowerPoint

PUBLIC ADMINISTRATION
AND ADMINISTRATIVE LAW
(PART III)
Lecture 1
Administrative law
1.
2.
3.
4.
5.
6.
7.
8.
9.
is the most extensive and flexible body of law controlling the legal situation of
both individuals and almost all other subjects operating within the state
usually contains imperative norms (absolutely binding norms – ius cogens)
is usually supported by public power
has a broad scope
is difficult to codify
has rules which are inserted in acts of different rank, enacted by various
organs, in different periods of time
is not politically neutral (in the words of Ronald Dworkin it is a political
enterprise)
is difficult to interpret
includes local law binding on the territory of the organ issuing it.
Source: www.supernat.pl
Administrative law (public administrative law)
encompasses three major fields:
1.
Organizational administrative law, concerning the organization
of administrative authorities, institutions and agencies, as well as
rules regulating the distribution of tasks and competences, and
is linked with civil service law;
2.
Substantive administrative law, concerning the competences
of specific entities of administration involving the rights of
citizens, as well as rights and obligations of citizens;
3.
Formal administrative law, called administrative procedure,
is concerned with developing rules and procedures for
administrative agencies or administrative courts.
Definition 1
Administrative procedural law (or formal law) includes the group of
norms that specify the formal aspect of implementing political
(organisational) and substantive norms.
2. This division of administrative law, comprising so-called administrative
prcedural norms, regulates the function of public administration
organs, primarily including the Code and functions of administrative
courts (judicial administrative trial).
3. Litigious norms are regulated in the Act on 30 August 2002 on
proceedings before the administrative courts.
1.
Definition 2
The law on administrative procedure regulates the
processes through which administrative decisions and
administrative projects are elaborated. It is more and
more regarded as essential in administrative laws: it is
really considered as the central part of it in some systems.
In many jurisdictions, rules concerning administrative
procedure are codified, gathered in a single piece of
general legislation: in a few, it remains non codified.
Codification of Administrative Procedure, J.B. Auby (ed.), publisher: Bruylant, 2014.
Administrative procedural law in legal system
’Why do we need administrative procedure?’:
1. In order to allow the implementation of substantive law (1st function of
procedural norms):
-substantive law cannot function without a procedure,
- administrative procedure does not have independent functions (except for
a general function of protecting individual interests); it always serves
to implement administrative substantive law,
- administrative procedure is not subservient to substantive law.
2. Administrative procedure protects interests of the individuals as well as the
public interest (2nd function of administrative procedure):
-provisions
of procedural law regulate the legal enviroment of a party and
impose an obligation on public administration bodies to take into account the
interest of both individuals and the society as a whole.
 the
term public interest, arising from the needs for ’common good’ or ’public
good’.
 public
interest is the only justification for any intervention of public
administration in matters of individuals and non-public organism set up by
individuals and/or by the other organism.
• key
words connected with the word: ’public interest’: anything affecting the
rights, health, or finances of the public at large.
3. Administrative procedure has an organisational function (3rd
function):
- administrative procedure regulates the course of action taken by a given
administrative body in order to settle an issue.
THE HISTORY OF CODIFICATION OF POLISH
ADMINISTRATIVE PROCEDURE
1.
The history of codification of Polish administrative procedure begins with the
Second Republic of Poland.
2.
After Poland recovered its independence in 1918, the legislative attempts were
undertaken to set out uniform principles of the administrative procedure.
3.
In 1922, the Act on the Supreme Administrative Tribunal was passed – the
Tribunal was appointed to rule on the legality of individual administrative acts.
4.
In 1923, the Act on Legal Remedies Against Administrative Rulings was passed.
The Act provided for uniform rules governing appeals and initiation of
proceedings for the entire Polish territory.
5.
In 1928 was adopted the Ordinance of the President of the Republic of Poland
on Administrative Procedure.
THE HISTORY OF CODIFICATION OF POLISH
ADMINISTRATIVE PROCEDURE
6. The Ordinance entered into force on 1 July 1928.
7. The Ordinace was formally into force until 1960.
8. After II World War was adopted the Resolution of the State Council and
the Council of Ministers of 14 December 1950 on Considering and
Settling Appeals, Letters and Complaints and on Press Criticism.
9. After adopting above act there was a possibility of using one of the two
models of considering Appeals:
pursuant to the provisions of the Ordinance of 1928 or
pursuant to the Resolution of 1950.
THE HISTORY OF CODIFICATION OF
POLISH ADMINISTRATIVE PROCEDURE
10. In 1960 the second set of codified rules and principles of
administrative proceedings was introduced by the Act of 14
June 1960 – the Code of Administrative Proceedings.
11. The Code was adopted on 14 June 1960 and entered into force
on 1 January 1961.
12. The Code has been in force for 54 years.
13. The Code unified almost the entire administrative procedure in
a form of one legal act.
THE HISTORY OF CODIFICATION OF POLISH
ADMINISTRATIVE PROCEDURE
14. The Code of Administrative Proceedings was supplemented in 1980
with provisions restoring the control over public administration
exercised by administrative courts.
15. After 1989 the Code in the above contents, amended generally only
to adjust the provisions to the changes of structures and
organization of public administration (reforms of 1990 – in
particular, the introduction of local self-government and of 1998 – in
particular, the introduction of new administrative division and new
authorities of public administration) was and still is binding and
valid.
THE HISTORY OF CODIFICATION OF POLISH
ADMINISTRATIVE PROCEDURE
16. The Code fully corresponds to legal requirements specified by the
legal system of the European Union.
17. Polish administrative procedural law is compliant with the European
Union’s regulations within that scope (in particular with the European
Code of Good Administrative Behaviour enacted in 2001 by the
European Parliament) and, by shaping the legal standing of an
individual in relations with public administration, the Polish rules and
procedural guarantees excel standards introduced by the European
Union’s bodies; the Code may constitute itself a reference point in
this regard.
• Nowadays, in Polish legal system there is a trend to create alternative procedural
systems applicable only for a given industry (plenty of procedural provisions appear in
different acts of substantive law and the proces of simplifying administrative
procedure is under way).
The examples of above mentioned trend are:
a) the Act of 29 August 1997 – Tax Ordinance (consolidated text: J.L. of 2005, No. 8, item
60, with further amendments), which includes comprehensive rules governing the
administrative procedure in tax matters independently from rules included in the Code.
b) the Act of 3 October 2008 on the Access to Information about Environment and its
Protection, Public Participation in Environmental Protection and Environmental Impact
Assessment (J.L. of 2008, No. 199, item 1227, with further amendments).
c) the Act of 7 July 1994 – Building Law (consolidated text: J.L. of 2013, No. 1409 with
further amendments).
d) the Act of 12 March 2004 of Social Assistance (consolidated text: J.L. of 2013, No. 269
with further amendments).
Sources of administrative procedural
law in Poland
The Code of Administrative Proceedings
2. Tax Ordinance
3. Law on Proceedings before Administrative Courts
4. Law on the system of Administrative Courts
1.
The scope of application of the Code
The Code of Administrative Proceedings governs the proceedings:
1) before competent public administration authorities in individual
matters to be determined by way of administrative decisions,
2) before other state authorities and other entities appointed to decide
matters specified in Subsection 1 of the Code by operation of law or on
the basis of agreements,
3) in matters involving disputes between authorities of units of selfgovernment and government administration authorities over authority
and competency and between those authorities and entities specified
in Subsection 2 of the Code,
4) in matters regarding the issuance of certificates.
Exclusions and extenstions from the scope
of application of the Code:
Extension (article 2):
The Code of Administrative Proceedings governs the proceedings connected with
regarding letters of dissatisfaction and proposals before state authorities,
authorities of units of self-government and before social organizations bodies.
Exclusions (article 3):
Provisions of the Code shall not apply to:
1) the proceedings in fiscal penal matters,
2) matters governed by the Tax Ordinace, except for Division IV, V and VIII of the
Code,
3) for which Polish diplomatic representations and consular offices have
competency, unless specific provisions provide otherwise.
Exclusions and extenstions from the scope
of application of the Code:
Provisions of the Code shall not apply also to proceedings in matters arising from:
a) organisational priority in relationships between state authorities and other
organizational units,
b) subordination of employees of authorities and organizational units specified in
Section 1 of the Code, unless specific provisions provide otherwise.
However, provisions of Division VIII of the Code shall apply to proceeding in matters
specified in Section 1, 2 and 3.2 of the Code.
The Council of Ministers may extend the applicability of all or part of the provisions of
the Code to the proceedings specifies in Section 2 of the Code, by the way of
ordinance.
The Code encompasses provisions regulating 4
types of administrative proceedings:
1.
2.
3.
4.
general administrative procedure,
procedure pertaining to the issuance of certificates,
procedure pertaining to the receipt and consideration
of complaints, motions and petitions,
procedure pertaining to the settlement of disputes
related to the division of competence between public
administration bodies.
1. General administrative procedure:
the other name for general administrative procedure is
administrative procedure.
”The adjective ’general’ has been added by scholars in order to
differentiate general administrative procedure from specific
procedures, such as those related to customs or taxes”.
2. is applied to the majority of administrative matters that are
settled by means of administrative decisions (such as
construction permit, a decision on granting social assistance
benefit, a permit for sale for alcohol, a radio or cable permit).
1.
2. Procedure pertaining to the issuance
of certificates:
1. certificates always confirm the existence or non-existence of the facts
of the case or a legal status.
2. certificate can be defined as:
• a written document that is an official verification that a condition or
requirement has, or has not, been met.
• a document (such as a birth certificate) prepared by an official during the
course of his or her regular duties, and which may be used as evidence for
certain purposes.
• a document certifying that one has fulfilled certain requirements and may
practice in a field.
3. Procedure pertaining to the receipt and consideration
of complaints, motions and petitions = summary proceedings
In Poland, everyone has the right to submit:
1. petitions,
2. letters of dissatisfaction and
3. proposals to:
- state authorities,
- authorities of self-government units,
- bodies of self-government organizational units and to social organizations
and institutions.
Above mentioned right is guaranteed to everyone on the basis of the
Constitution.
4. Procedure pertaining to the settlement of disputes related to the
division of competence between public administration bodies:
- due to the provisions of the Code there are 2 types of disputes
between public administration bodies:
1. positive dispute – situation in which at least two public
administration bodies think that they have the competency to conduct
the particular matter.
2. negative dispute – situation in which at least two public
administration bodies, which are in dispute, think that they aren’t
competent to conduct the matter. Such dispute is not acceptable in the
state under the rule of law.
• at least two public administration bodies can be in dispute!
regulation: articles 22-23 of the Code.
The presentation is based on:
1. M. Możdżeń-Marcinkowski, Introduction to Polish administrative law. Second
revised edition, Warszawa 2012.
2. H. Izdebski, Public administration and administrative law, Warszawa 2005.
3. M. Bińkowska, A. Chechłowski, R.A. Walawender, The Code of Administrative
Proceedings, Warszawa 2014.
4. A. Korzeniowskia-Polak, Administrative procedure, [in:] Introduction to Polish law,
Anna Wyrozumska (ed.), Łódź 2005.
5. Code of Administrative Proceedings (Journal of Law 2013, item 267 with further
amendment – consolidated text)
6. Law on 30 August 2002 on the Proceedings before Administrative Courts (Journal
of Law No. 153, item 1270 with further amendment)
7. Law on 30 August 2002 on the system of Administrative Courts (Journal of Law No.
153, item 1269 with further amendment).