PUBLIC ADMINISTRATION AND

ADMINISTRATIVE LAW

Lecture 7

Administrative law can be considered in:

domestic perspective,comparative perspective,

european perspective,global perspective.

1. adm. law is being taught in many institutions of higher education as well as in numeorus special institutes,

2. for a long time adm. law has been a subject of research and it becomes more and more popular as a subject of teaching,

3. the role of adm. law in contemporary states and society is so great and obvious that it seems to be needless to develop any further arguments to prove it,

INTRODUCTION TO ADMINISTRATIVE LAW

4. a modern state cannot function without adm. law and also public administration cannot function without this branch of law,

5.adm. law involves the study of how those parts of our system of government that are neither legislatures nor courts make decisions. These entities, referred to as administrative bodies, are normally located in the executive branch of government and are usually charged with the day–to–day details of governing,

6.according to Professor T. Rakoff from Harvard Law School ”Administrative law…[controls] how government operates.”

Adm. law is the branch of legal system.Adm. law belongs to a broader category of public law.

Adm. law, especially together with constitutional law, determines not only the existence and organisation of public administration but also the range, principles and forms of its activity.

1.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

2.usually contains imperative norms (absolutely binding norms – ius cogens)

3.is usually supported by public power4.has a broad scope5.is difficult to codify6.has rules which are inserted in acts of different rank, enacted

by various organs, in different periods of time7.is not politically neutral (in the words of Ronald Dworkin it

is a political enterprise)8.is difficult to interpret9.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

INTERNAL DIVISION OF ADMINISTRATIVE LAW

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.

SUBSTANTIVE ADMINISTRATIVE LAW

1. the most extensive group of norms,2. includes statutory rights and duties created either when

the authourity of law itself issues statutes, orders or acts of local law; or when the appropriate organ of the public governmental or self-governmental administration issues an administrative act (e.g. administrative decisions),

3. comprises many and diverse norms, such as laws on citizens, police, passports, foreigners, population evidence, regulations regarding acts under martial status education and many others.

ORGANIZATIONAL ADM. LAW:

Organizational adm. law regulates: 1. structures of public administration bodies,2. forms of their internal interrelationships,3. rules of appointing and dismissing the, including

agents and other authorized persons,4. systems for dividing up the functional competences

of the organs,5. principles for organizing the offices as auxiliary units

of organs.

ADM. PROCEDURAL LAW

1.Represents the form of proceedings in individual administrative cases adjudicating on public laws and legal responsibilities in the form of administrative decisions.

2.Comprises so-called administrative procedural norms.

3.Regulates the function of public administration organs: primarily including in the Polish Code of Administrative Proceedings the function of administrative courts (in judicial administrative

trail) is the subject of the Act of 30 August 2002 on proceedings before the Administrative courts.

1. adm. law in its modern form is a relatively young branch of law

2. administrative law evolved into a modern branch of law at the turn of 19th century

3. the idea of creating this branch of law was to protect people from arbitrary action of public authorities

4. public law in the modern concept offers an account in governing authority in legal terms and is formed by reworking the medieval idea of the sovereign state. The nature of this concept can be explain mainly through examination of the writing of Bodin, Pufendorf and Rousseau

5. the history of administrative law in Europe reflects the emergence and evolution of administrative power within the nation state over the last and two half centuries

6. for the Continental European legal theory and tradition, administrative law is founded on two principles, emanating from the era of the French Revolution:

- on the principle of autonomy and self-reliance, meaning that public administration has its own, distinctive legal system;

- on the principle of the rule of law. It means that the public sector, i.e., the State have to comply to the provisions of law

ADM. LAW IN THE INTERNATIONAL, EU AND NATIONAL PERSPECTIVE

Nowadays, administrative law operates in the international level at a legal and institutional

vacuum; the constitutional framework, in which the domestic administrative law operates, is missing.

It appears, however, that international law is elaborating mechanisms and procedures for its ‘constitutionalisation’, mainly through rules of a

constitutional content and nature.

Relation between administrative law and constitutional law

The constitutional character of administrative law:

Constitutional law resolves great issues of state and society, while administrative law, in its best moments , merely refines those

principles for dealing with the administrative state. Constitutional and administrative law both govern the affairs of

the state. Administrative law, an area of law that gained early sophistication in France, was until well into this century largely

unrecognized in the United Kingdom as well as the United States. To the early English writers on administrative law, there was

virtually no difference between administrative law and constitutional law.

Relation between administrative law and constitutional law

Constitutional Law Administrative Law1. Constitutional law is genus.2. Constitutional law deals with various

organs of the state.3. It deals with the structure of the

state.4. It is the highest law.5. It gives the guidelines with regard to

the general principles relating to organization and powers of organs of the state, and their relations between citizens and towards the state. It touches almost all branches of laws in the country.

6. It also gives the guidelines about the international relations.

1. Administrative law is a species of constitutional law.

2. It deals with those organs as in motion.

3. It deals with the functions of the state.

4. It is subordinate to constitutional law.5. It deals in details with the powers

and functions of administrative authorities.

6. It does not deal with international law. It deals exclusively the powers and functions of administrative authorities.

Relation between administrative law and constitutional law

Constitutional law deals with the fundamental principles by which the government exercises its authority - in some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population.

Constitutional law is a branch of law regulating the foundations of social, political and economic structure of the state.

Most countries have written constitutions which are the basic source of constitutional law and have a great improtance for administrative law – constitutional provisions are legal basis for the ability of legislative power to pass the norms of administrative law.

Sources of administrative law in constitutional perspective

1.Of fundamental importance is the constitutional division of sources of law into:- universally binding provisions of law (regulating the status of individuals

and other similar entities) and - internal law (addressed to entities subordinated to the one issuing the act). 2.The catalogue of universally binding law is closed, which means that such law

is only enacted in forms (categories of normative acts) foreseen in the Constitution and only by bodies vested by the Constitution with the authority to enact particular types of regulations.

3.Sources of internal law are given only a loose constitutional framework, and are not listed exhaustively, either in respect of the subject matter or the entities they address.

4.The limitation of the system of sources of law thus does not exclude customary law.

Sources of administrative law in Poland

Chapter III of the Constitution (Arts 87-94)General principles contained within the Constitution are also of

importance:Art. 2 – establishing Poland as a democratic state ruled by law, which implies inter alia the primacy of the law and respecting the hierarchy of norms;Art. 7 – establishing the principle of legality as the foundation of the legal system;Art. 8 – establishing the principle of the primacy and direct application of the Constitution;Art. 9 – applying the international law principle of pacta sunt servanda to constitutional law;Art. 10 – establishing the separation of powers; Art.  16 – establishing the principle of territorial self-governance.

THE SOURCES OF UNIVERSALLY BINDING LAW:

Article 87The sources of universally binding law of the Republic of Poland shall be: 1. the Constitution, 2. international agreements ratified upon prior consent granted by

the statue,3. statutes, 4. ratified international agreements,5. regulations,6. enactments of local law issued by the operation of organs shall be

a source of universally binding law of the Republic of Poland in the territory of the organ issuing such enactments.

The Constitution also makes mention of regulations having the force of statute (Article 234) issued in specific circumstances during periods of martial law.

The Constitution does not expressly include legal acts of the EU in the catalogue of universally binding sources of law.

When considering sources of law and the Constitution’s place in that system, of key importance is Article 8 (1) of the Constitution:

- it declares that the Constitution is the supreme law of the Republic of Poland. Its position was not altered by Poland’s accession to the EU, nor by the obligation to respect binding international law,

- also of importance is the fact that the Constitution’s provisions apply directly unless the Constitution itself provides otherwise (Article 8 (2)). The character of its norms, however, means that independent and direct application of the Constitution is rare.

CONSTITUTION

1. The fundamental source of law in Poland. ’It is a foundation of the state’.

2. It constitutes the primary statue among other statues.3. It regulates such issues as the political system, the socio-

economic system, the structure and the competence of the state organs and local self-government, referendum, freedoms, rights and duties of citizens, the state of emergency, the state of natural disasters and issues of constitutional changes.

4. It forms the hierarchy of legal acts in Poland.5. It holds preeminence over all other lawmaking and norm-

settling instruments in the Polish statutory law system.6. All other legal instruments should be in accordance with its

provisions.7. Constitution is valid in the territory of the whole country.

International agreements ratified upon prior consent granted by the statue

Ratification of an international agreement by the Republic of Poland, as well as renunciation thereof, shall require prior consent granted by statute - if such agreement concerns:1) peace, alliances, political or military treaties;2) freedoms, rights or obligations of citizens, as specified in the Constitution;3) the Republic of Poland's membership in an international organization;4) considerable financial responsibilities imposed on the State;5) matters regulated by statute or those in respect of which the Constitution requires the form of a statute.Treaties ratified with the prior consent of the Parliament have precedence over statues if they cannot be reconciled with provisions of such statues.

Statutes

1.The fundamental element of the legal system is occupied by statutes, on which the heaviest burden of regulation rests.

2.The supremacy of statute is expressed in the principles of autonomy, primacy and exclusivity of regulation.

3.These characteristics have been subjected to a re-evaluation considering the expansion of judicial review of their constitutionality on the one hand, and limitation of the domestic legislature’s independence owing to the growing subordination of states to international and EU law on the other.

Statutes

A statue is a legal act of general and abstract nature and unlimited scope.

It is adopted by the Sejm and the Senat in a constitutional described procedure.

It must in be accordance with the Constitution and international agreements ratified following the prior consent granted in the form of a statue, which is the subject to review by the Constitutional Tribunal.

Ratified international agreements

1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.

3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws. Art. 91 of the Constitution

Regulations

1. Regulation is a normative act issued by competent organs of the public authority.

2. Regulations are issued on the basis of special authorization contained in statues and for the purpose of implementation of statues by the appropriate organs. These appropriate organs are specified in the Constitution.

3. Regulations are issued by the bodies of executive authority on the basis of special authorization included in the so-called statutory delegation.

Statutory delegation

Every statutory delegation:1. should be obligatory, when the appropriate authority is required to

issue an executive regulation to implement additional details; or facultative, which allows the authority to issue an executive regulation;

2. should define an individual organ that will be competent to issue the executive regulation; usually this is the Minister, the Council of Ministers, the Prime Minister, occasionally the President of the RP and the National Council of Radio Broadcasting and Television;

3. should define purview of the sub-law to ensure that the matters covered by it are precisely regulated; namely, how the authorized executive body is to use its competence granted by statutory delegation;

4. should define obligatory guidelines concerning the content of executive regulations.

Regulations

Every correct executive regulation :-should be announced in the Official Journal of Laws of the Republic of Poland;

- should be issued only by a virtue of a statue;- should be issued by an authorised organ;-should be in accordance with the Constitution, statues, as well as ratified international agreements,

- should not to be released by means of sub-delegation, which means that subject authorized to issue the executive regulation is not authorized to pass this competence to other bodies.

Local law

1. All categories of regional and local organs of public administration, meaning organs of both government and self- government administration, are vested with the authority to enact local laws.

2. The Constitution establishes the contours of local law by delineating the borders which this law may not cross, but within them it allows the legislature to '[specify] the principles and procedures for enacting local legal enactments' (Article 94 of the Constitution).

Enacments of local law

Local lawThe Constitution indicates five fundamental characteristics of local law: 1. the local character (Article 87 (2) of the Constitution), which limits the scope of application of local law to the territory in which the enacting organ operates; 2. a limited range of bodies authorized to enact such law (Article 94 of the Constitution); 3. a universally binding source of law (Article 87 (2) of the Constitution), which provides for the capacity of local law to regulate the situation of external entities, thus leading to the requirement to promulgate such laws before they may take effect (Article 88 (1) of the Constitution); 4. subordination to statute, which means that local law is lower in the hierarchy of normative acts and must be in compliance with statutory regulations (Article 184 of the Constitution); 5. secondary character, which means that local law may only be enacted ’on the basis of and within limits specified by statute’, (Article 94 of the Constitution.

Local law

3 primary types of acts enacting local law are identified:

1. acts issued on the basis of local self-government constitutional statutes, including those addressing the internal structure of local government, the organization of its offices and institutions, principles for managing assets and the use of public facilities;

2. acts issued on the basis of particular authorizations contained in statutes; this is the most common type of local law,

3. acts constituting public order regulations – in matters unregulated by other statutes – issued in the event of the necessity to protect particular states or values.

Internal law

1.Article 93 of the Constitution includes acts of internal law in the catalogue of sources of law. In establishing this category of sources of law, the legislator failed to provide a complete list of its types and authors.

2.While Article 93 of the Constitution expressis verbis only addresses the authority of the Council of Ministers, the Prime Minister and ministers to issue such acts, and only makes mention of 'resolutions' and 'orders', this does not constitute an enumeration. Practically every organ of public administration is authorized by statute to enact such acts. However, the scope of addressees is limited by introducing the criterion of their 'organizational subordination'. Acts of internal law may also not be cited as the basis for issuing 'decisions' to citizens and other outside entities.

International and supranational (EU) law in Polish adm. legal system

International and EU law were implemented by the Constitution into the Polish legal regime as sources of law.

The current Constitution directly regulates the relationship between Polish law and international law (including, indirectly, European law).

Constitutional norms addressing international agreements establish the scope of their legal force and their place in the hierarchy of Polish sources of law. In this context, particularly important are Articles 9, 87, 89, 90, 91, 188 and 241 of the Constitution. It is also necessary to recall Article 8(1) of the Constitution, which declares that 'The Constitution shall be the supreme law of the Republic of Poland', especially in reference to the principle of primacy of EU law as expressed in the jurisprudence of the Court of Justice of the European Union (CJEU) and in the doctrine of EU law. The position of the Constitution was not altered by Poland’s accession to the EU, nor by the obligation contained in Article 9 of the Constitution to respect international law binding on Poland.

International agreements are of primary importance in the system of sources of international law. Constitutional provisions in this respect are limited to establishing principles for the effectiveness of ratified international agreements and their place in the hierarchy of sources of law.

Such agreements are counted among the sources of universally binding law in Poland.

They are ratified either by the President of the Republic of Poland following the so-called 'minor ratification' procedure, or on the basis of the prior consent of the lower house (Sejm) of Parliament expressed in statute. Article 89(1) of the Constitution sets forth five categories of matters in which a statute is mandatory for ratification.

International and supranational (EU) law in Polish adm. legal system

Thank you for your attention!

This presentation was based on:

1. Bińkowska M., Chechłowski A., Walawender R.A., The Code of Administrative Proceedings, C.H. Beck, Warszawa 2014.

2. K. Skotnicki, A. Domańska, Constitutional law, [in:] Introduction to Polish Law, Wyrozumska A. (ed.), Łódź 2005.

3. Duniewska Z., Administrative law, [in:] Introduction to Polish Law, Wyrozumska A. (ed.), Łódź 2005.

4. Izdebski H., Public administration and administrative law, Liber, Warszawa 2006.

5. Korzeniowska A., Administrative Procedure, [in:] Introduction to Polish Law, Wyrozumska A. (ed.), Łódź 2005.

6. Możdżeń-Marcinkowski M., Introduction to Polish Administrative Law. Second Revosed Edition, C.H. Beck, Warszawa 2012. This presentation was based on above articles

and chapters only for didactic purpose.