Download - dr. hab. Jerzy Supernat Institute of Administrative Sciences University of Wrocław

dr. hab. Jerzy SupernatInstitute of Administrative Sciences

University of Wrocław

Basic Terminologyin the Field of Public Administration

Basic Terminology in the Field of Public Administration

dr. hab. Jerzy Supernat

administrative law public interest state (~ government) decentralisation supervision forms of decentralisation self-government territorial self-government special self-governments organ of public administration offices of public administration types of organs tasks and competences categories of tasks functions of public administration administration of order administration of provision administration of ownership administration of development



Administrative law

modern state cannot function without public administra-tion

public administration cannot function without admini-strative law

administrative law is not law of administration



Zofia Duniewska:

Administrative law is a body of public law that deals with the constitution and functions of public administra-tion as well as with the rights and duties of persons getting into a relationship with administration. Its main purpose is to protect the common good.



Jacek Jagielski: 1/2

Administrative law is one of the most complex areas of the Polish legal system. Today it is considered a key ele-ment of the public law category, although it was once as-sociated with the entire domain of public law. Its regula-tions concern almost all areas of life as well as the activi-ties of individuals and certain other subjects functioning within the framework of the state.

Administrative law provisions are thus some of the most important components of the entire legal system.



2/2

Administrative law is composed of two kinds of rules:

1. The rules on the organization and functioning of the administrative apparatus and other bodies designed to perform public administration duties, as well as on the conduct of representatives of the administration and their powers over administered subjects outside the administrative apparatus.

2. The rules governing the rights of the administered subjects vis-à-vis the administration and the rights and duties of natural and legal persons and other subjects in various areas toward whom the interest and activity of public administration is directed.



It is widely accepted that administrative law:

• is the most extensive and flexible body of law controlling the legal situa-tion of both individuals and almost all other subjects operating within the state• usually contains imperative norms (absolutely binding norms – ius co-gens)• 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



Administrative law

Structural a.l.(who is acting?)

Substantive a.l.(what is the object

of the action?)

Procedural a.l.(how are

they acting?)

Internal division of administrative law



Europeanization of administrative law vs.

European administrative law

in the first case European law influences the content of national administrative law which is the basis of function-ing of public administration

in the other case the norms of European law form the direct legal basis for functioning of public administration



Public interest

The public interest, arising from the needs for common good*, is, in modern liberal democracy, the only justifica-tion for any intervention of public administration in the matters of individuals and non-public organisms set up by individuals and/or other organisms.

This is due to the fact that the public interest is the only justification for any intervention of public law, including administrative law, in matters which are either subject to the civil (private) law or outside the limits of the law.

* Art. 1 of the Constitution: The Republic of Poland shall be the com-mon good of all its citizens.



Hubert Izdebski

Public interest – England

Before the emergence of what is sometimes called „modern interventionist administrative state”, the judge-made rule was that owners were entitled to prefer their own interest to the common good (freedom of property and freedom of contract were important issues – JS).

Since the second half of the 19th century there has been a growth of responsibilities of the state in the social and econo-mic fields, introduced by means of legislation (on factory pro-tection, housing, environment protection, education, health care, etc.), which evoked the „public interest”. Humanitarian and the resulting social principles have been more and more prevailing over individualism, which was typical of England of the 18th century and the first half of the 19th century.

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Public interest – the European continent

On the European continent, though the point of departure for the evolution had been quite different (ius politiae enjoyed by the absolute monarchs, and, therefore, a recognized predo-mination of the public interest), the liberal, individual thinking triumphed in the 19th century, with the same convictions con-cerning the role of the freedom of property and the freedom of contract.

Since that time, however, „modern interventionist administra-tive state” has been being built. This meant more and more ex-ceptions from rules of the private law, justified by „the common good” and/or „the public interest”. Moreover, communist and fascist regimes succeeded, though temporarily, in restoring, and even monopoly, of public interest.

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Child labour

Development of „modern interventionist administrative state”

freedom of property freedom of contract

freedom of want freedom of disease


vs.



Ideas of „less state” and of New Public Manage-ment, typical of the 1980s, served as a break put on an unlimited development of „modern interventionist admini-strative state”.

Their practical role, however, was to• rediscover the place of civil-law rules in society and in the government• focus on the necessity of searching for the existence of the public interest while thinking about the state’s inter-vention

rather than to stimulate abandoning the idea of such state.

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State (~ government)

state in a broader sense = the whole public power on a given territory

state in a strict sense = only a centralised public pow-er system

Art. 7 of the Constitution The organs of public power shall function on the basis of, and within the limits of, the law.

Art. 10 of the ConstitutionThe system of government of the Republic of Poland shall be based

on the separation of and balance between the legislative, executive and judicial powers.

Art. 163 of the ConstitutionLocal government shall perform public tasks not reserved

by the Constitution or statutes to the organs of other public powers.



Decentralisation

Decentralisation is a means of • putting a certain public entity and/or a certain public activity out of a fully centralised direction (control in the English sense), and therefore out of the state administra-tion (but not out of the system of public powers) • giving such public law entity a competence of autono-mous carrying out such activity

on its own behalf on its own responsibility

The counterbalance to decentralisation should be super-vision.



Decentralised administration is not the state admini-stration in the strict sense of „the state”.

By contrast, in the time of „real socialism” all public admi-nistration was officially the state administration, but there was no such phenomenon which now could be called de-centralisation. It is quite comprehensible as „real socia-lism” relied on centralisation, and, even more, on concen-tration of the power. Centralised state administration was only an instrument in the hands of the highly centralised apparatus of the Communist party.



Supervision

Supervision (in its Polish sense) is a specific kind of competen-ce of an authority higher than that supervised, which means:

• less than competence of direction (control in the English sen-se)• more than competence of control (control in Polish sense, i.e. right of simple examination and evaluation of controlled activi-ties)

Supervision means rights to apply allowed instruments of su-pervision (supervisory decision), but only after• passing the procedure provided by the law• proving that the activities supervised were not conforming to the standards provided for in the law

Instruments of supervision are divided into those relating to

• organs (e.g. confirmation of the election, revocation or disso-lution)• persons (e.g. suspension, dismissal, degradation)• acts (authorisation to issue an act, confirmation, suspension, annulation / declaring illegality)

Supervision can be made • ex ante, before the supervised activity is actually undertaken• ex post, with respect to what was already done

In Poland legality (conformity with the law) is the only criterion of supervision over activities (general acts) of territorial self-government, and supervision is made only ex post.





Forms of decentralisation

According to the classical public law theory of Central Europe there are four forms of decentralisation:

• self-government

• public undertaking public enterprise public establishment (e.g. university, school, hos-pital, museum, library)

• delegation of public tasks to institutions of self-government, to enterprises, and to establishments, as well as to non-public institutions, in particular NGOs

Public establishment



Article 15 of the Constitution

1. The territorial system of the Republic of Poland shall ensure the decentralization of public power.

2. The basic territorial division of the State shall be determined by statute, allowing for the social, economic and cultural ties which ensure to the territorial units the capacity to perform their public duties.

Basic territorial division of the Republic of Poland is indeed made for the purposes of decentralization. It consists of three units:

• municipalities (gminy)• districts (powiaty)• regions / voivodships (województwa)



There are a variety of different arrangements which are often included in the discussions on decentralization. For example G.S. Cheema and D.A. Ron-dinelli have identified four major forms of decentralization: devolution – transfer of responsibility for governing, understood more broadly – i.e. the creation or strengthening, financially or legally, of sub-national units of governments, whose activities are substantially outside the direct control of central government delegation – assignment of specific decision making authority – i.e. the transfer of managerial responsibility for specifically defined functions to public organizations (e.g. local governments) outside the normal bureaucratic struc-ture of central government deconcentration – spatial relocation of decision making – the transfer of some administrative responsibility or authority to lower levels within central government ministries or agencies divestment – best treated as decentralization and it occurs when plan-ning and administrative responsibility or other public functions are transferred from government to voluntary, private, or non-governmental institutions with clear benefits to and involvement of the public

H. Izdebski: Devolution denotes a specific type of decentralisation – a transfer of a part of previous competences of the central power to macro-regional

institutions.



Self-government

territorial (general) self-government

special self governments



Territorial self-government

Territorial self-government operates in all or in some units of territorial division of the state: it is always present in municipalities (basic units of territorial division) but more and more frequently it is found at higher levels, which is, in particular, the case of bigger states.

The contemporary principle is that diverse levels of ter-ritorial self-government cannot be in any way regarded as a hierarchical organisation; in particular, the respective organs of higher level cannot reverse or change decisions of lower organs.



Territorial self-government in Poland can be divided into:

• local self-government the self-government of municipalities the self government of districts

• regional self-government or the self-government of voi-vodships

Regional government is indispensable in any bigger uni-tary state inter alia due to regional policy of the European Union.



Article 3 – Concept of local self-government

1. Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.

2. This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.

Article 4 – Scope of local self-government

3. Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of re-sponsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.




1. Units of territorial self-government shall possess legal personality. They shall have rights of ownership and other property rights.

2. The self-governing nature of units of territorial self-government shall be protected by the courts.



Special self-governments

• professional self-government• business self-government


1. By means of a statute, self-governments may be created within a profession in which the public repose confidence, and such self-governments shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of pro-tecting, the public interest.

2. Other forms of self-government shall also be created by means of statute. Such self-governments shall not infringe the freedom to practice a profession nor limit the freedom to undertake economic activity.

Pharmacist in the 16th century.



Traditional self-government (autonomy) of schools of higher education

Art. 70.5. of the Constitution

The autonomy of the institutions of higher education shall be ensured in accordance with principles specified by statute.



Organ of public administration

The state administration (state in a broader sense) is co-mposed of diverse elements but, as far as its mission of representing imperium, i.e. the public power competence that consists in ordering, forbidding and/or allowing, is concerned, it is organs of public administration that con-stitute its essential components.

The term „organ” is typical of the Germanic approach to public administration (in the field of public law it reflects the Germanic civil law concept of the organ of legal person). In the French and the English tradition the notion of „authority” prevails over the concept of organ.



Exemplary organs of public administration in Po-land:

• the minister• the voivod• the mayor of municipality

Nota bene: the term organ is not used to the ministry, the voivod office or the municipality office, which can be defined as offices of the respective organs.



Offices of public administration

Offices have no powers of their own, as they are only an auxil-lary apparatus of their chiefs – the organs they serve. Never-theless employees of offices may express the imperial will of the public power. They may do that if it is delegated to them (such delegation is known in Poland as internal deconcentra-tion) by their respective chief as the organ of public administra-tion, and only on his/her/its behalf.

Art. 268a of the 1960 Code of Administrative Procedure

The organ of public administration may, in written form, authorise employees of the organisational unit they direct to settle on a solution to a given kind of matters, in particular to issue on its behalf ad-ministrative decisions, procedural decisions, and certificates.



Types of organs

• unipersonal (single-person), i.e. composed of one per-son• collegial (board), i.e. composed of a number of persons

In contemporary public administration, the model of uniperso-nal organs is predominant, although in each national admini-strative system there are also collegial organs:• at the top of administrative hierarchy• in the main decision-making authorities of territorial self-government (councils elected by the people)• in the authorities of public audit



Tasks and competences

scope of activity public tasks legal competences

• the term „tasks” refers to the scope of administrative activi-ties.

• the term „competences” concerns authorisation of a given organ to act, within the field of its appropriate tasks, by means of specific legal forms of activity attributed to it by law. It means:

an expressly and legally bestowed power to decide on a given matter or issue of the public interest in a given legal form not only a right but also an obligation binding the compe-tent organ



„Hard” competences – administrative acts

Imperium solutions to problems arising within the sphere of legal competence of an organ of public administration are commonly called administrative acts. There are:• normative administrative acts (administrative regula-tions); to enter into force, they have to be published (in Poland in the Journal of Laws or in the Voivodship Official Journals)• individual administrative acts (administrative decisions); to have the legal effect, they have to be formally deliver-ed to a given party or, at least, formally presented to it



Categories of tasks

• tasks of the state in strict sense; in Poland: tasks in the field of governmental administration (zadania z zakresu administracji rządowej)• proper tasks (zadania własne) of self-government, esp. tasks of units of territorial self-government

• commissioned tasks (zadania zlecone); transferred by an act of Parliament• entrusted tasks (zadania powierzone); transferred by virtue of an agreement concluded between a competent organ of the state administration and an authority of decentralised administration

In Poland, since the 1997 Constitution supervision over performance of all tasks of units of territorial self-government has been restricted to conformity with the law (art. 171).



Functions of public administration

• administration of order• administration of provision• administration of ownership• administration of development

Woodrow Wilson (1856-1924) founder of the science of public administration in the United States.



Administration of order (administracja reglamentacyjna)

Administration of order (administration of imperium) per-forms the classical functions of ordering, forbidding or al-lowing a certain conduct, by means of administrative acts, normative and/or individual.

the function of adjudication (the function of deciding in individual cases) adjudicative administration and regulatory administra-tionH. Izdebski: Activities of administration of order, as classical, can still be car-ried out in a traditional imperative way, though following such style of ad-ministering, which is distant from the standards of good governance, seems to be more and more difficult.



Administration of provision(administracja świadcząca)

• provision of public services in the social field (educa-tion, health care, social aid, etc.); these services are tradi-tionally provided by public establishments (zakłady admi-nistracyjne) • provision of services qualified as utilities or public utili-ties (public transport, telecommunications, water, electri-city, gas supply, etc.); these services are traditionally pro-vided by public enterprises (these days their role has been diminishing, as some of them are transformed into public-owned companies, which can be the first step towards their privatisation)



Administration of ownership(administracja właścicielska)

Administration of ownership (administration of dominium) performs tasks of management of public property:

• public goods (streets, public parks, etc.)

• administrative assets (used by respective offices in order to perform certain public tasks)

• business assets



Administration of development

Administration of development means public planning in its various aspects involving:

• town and country planning

• regional strategic planning

• development planning within the framework of the Euro-pean Union structural policies

Concluding Remark


Do not ask what the Government can do for you. Ask why it doesn't.

Gerhard Kocher

Download - dr. hab. Jerzy Supernat Institute of Administrative Sciences University of Wrocław

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