WEEK 7 ADMINISTRATIVE LAW AND MARKET REGULATION | Quizlet

Recap: who regulates?

- Narrow/broad scope

What is a public regulator?

- Generally, a state body or a body linked to the government that is expected to act in the public interest

- Powers typically defined in a statute

2 types:

1. Public authorities that traditionally belong to the state —> part of a centralised or decentralised government

2. Private legal actors who are granted public authority —> usually through a statute, or by meeting three common cumulative criteria:

a. public task

b. public funding

c. public supervision

How to regulate with administrative discretion?

- Discretionary powers —> act of individual decisions when administrative authorities apply rules

- Discretion required to enable effectiveness and efficient public administration

- Sometimes, administrative decisions binding —> "if 3 requirements are fulfilled, then the permit is granted"

- Administrative discretion is structured and confined, and can be reviewed —> separation of powers

- Administrative court can assess the suitability, necessity and proportionality of the administrative actions

Principles of good administration (7)

- No uniform principles

- However, there are generally agreed upon principles —> NOT codified

1. Principle of proportionality

2. Equal treatment

3. Efficiency

4. Effectiveness —> efficient public administration

5. Transparency

6. Diligence —> motivate its decisions

7. Absence of abuse of powers

- Not particularly definitive or concrete

- 3 dimensions:

1. Efficiency and quality dimensions —> is the public interest pursued in a proper and efficient manner?

2. Procedural dimension —> what procedural guarantees are in place for the citizens?

3. Public interest dimensions —> what public interest is involved with the administrative action?

How are principles of good administration relevant in practice?

- Principles of good administration underly:

1. Standards of good governance

2. Rights to good governance

Standards of good governance

1. Getting it right

2. Being customer focused

3. Being open and accountable

4. Acting fairly and proportionately

5. Putting things right

Getting it right

- Acting in accordance with the law 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 access 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 its 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 rights

- Acknowledging mistakes and apologising 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 governance

- One or more principles also underly the rights to good governance, which can function as the legal basis to claim your rights

- The principles can be implemented as such —> according to the regulatory technical: principle-based regulation

- Can also be implemented in concrete norms

- e.g. Art. 41 Charter, art. 10 European Code on Legitimate Expectations, Consistency and Advice

How are principles of good administration relevant in practice?

e.g. Dutch childcare benefits scandal; earthquakes in Groningen

Relationships standards of, and rights to, good governance

- Standards can't always be taken to court to enforce, can only be the case when you have a right to good governance

- e.g. Benthem case

Judicial review of administrative action: competence of the civil court and administrative court

- You disagree with actions (or negligence) of the administrative authority —> what do you do? It depends!

- In practice, best idea is to fist discuss with the administrative authority

- Initiating legal action —> it mainly depends on whether it concerns factual acts of the administrative authority, or whether it concerns administrative decisions

- Factual act —> civil procedure

- Administrative decision —> administrative procedure

Administrative procedure explained

- Decision-making process —> standards of good governance guide the administrative decision-making procedures

-- e.g. information gathering, protection of parties rights, providing transparency through information requests regarding public documents

- Administrative decision

- Administrative appeal can be initiated by submitting a statement of objections —> an attempt to solve the dispute at administrative level

- The rights to administrative appeal generally provided by the general administrative law act / general administrative procedure act

1. Administrativ decision :(

2. Administrative appeal

3. Still :( or new administrative decision :/

4. Judicial review by court

5. Judicial decision

6. Appeal

Jurisdiction and legal standing

Jurisdiction of the courts:

- Often: location of the public authority —> this is typically also the location of the litigant

- Other cases —> location of litigant

- Legislation may appoint other courts

Legal standing:

- Several criteria (depending on the country and area of law)

1. Recipient of the individual decision OR

2. Individual, personal, objective, current and directly involved interest in the decision

1. Individual interest —> have to appeal for own accordance / rights

2. Personal interest —> can distinguish yourself from other citizens

3. Objective interest —> objectively verify that you have an interest in the decision

4. Current interest

5. Directly involved interest

Phases of judicial review

1. Administrative phase —> full review, legality, incl. exercise of discretion

- Statement of objections (same public authority)

- Administrative appeal (hierarchically higher public authority)

2. Judicial phase —> mainly legality issues

- Court of first instance —> sometimes special tribunals, depending on the country

- Further appeals to higher courts and, in some cases, Supreme Administrative Courts (e.g. Germany, Netherlands, Portugal)

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 strict proportionality of the administrative action

Types of illegality

- Decision-maker acting ultra vires

- Unlawfully delegating powers or 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; bias; failure to conduct a required investigation properly; failure to give adequate reasons (compare standards of good governance)

Error of fact

In a ruling, the wrong facts were used or interpreted incorrectly

Error of law

The ruling had all of the right infuriation, but you think the law wasn't applied correctly

Different forms of decisions by the administrative court

Confirm, annul, replace