Comparative administrative procedural law
- Study programme and level:The joint doctoral study programme Governance and Economics in the Public Sector (third cycle)
- 2nd year
- 5 ECTS
- Course type: Elective course
- Lectures: 20
- Seminar: 20
- Other forms of study: 20
- Individual work: 90
- Lecturer: Polonca Kovač, PhD
1. Objectives and competences
- The course will examine the significance of administrative procedure law for work in (national or supranational) public administration considered as part of instrumental as well as institutional public management,
- the course will outline the key procedural institutions of comparative administrative law (EC law and national legislations), the understanding and interpretation of which contributes to the development of administrative and legal sciences. Students will become familiar with complex procedural statuses that arise in decision-making on the issue of general acts regulating decisions in specific cases as well as in the conduct of procedures that deal with recognition or imposition of the rights, duties and legal interests of the parties in administrative and other public law areas, in accordance with the legislation in force in Slovenia and in comparable countries and the EU; administrative procedure law will be highlighted as an instrument to ensure the respect of constitutional or fundamental human rights; the course will also explain and examine the importance of administrative procedure law as a business process in public administration and other public bodies in terms of development of public policy,
- students will gain the capacity to recognise environment-specific determinants and the main differences among the systems of administrative (procedure) law based on the Anglo-Saxon, German, French and Scandinavian models,
- students will acquire the skills to independently search for and develop new knowledge and solve the most complex technical and scientific issues in the interdisciplinary and comparative law perspectives of administrative law and management sciences.
Students will acquire the following course-specific competences:
- the capacity to understand and upgrade theoretical knowledge with emphasis on the status and functional definition of public administration bodies in Slovenia, selected countries (Austria, Germany, France, USA, Finland, etc.) and the EU,
- the theoretical knowledge for a systematic formulation of implementing regulations at the level of state and municipal administrative and other bodies, public service providers or holders of public functions, following the trends of European administrative law and the requirements of EC law,
- the ability to master the evaluation approaches to business, professional and research projects and policies in relation to or with emphasis on aspects of administrative procedure law and the relation between administration and the judicial system,
- the capacity of reflective research and the capacity to carry out technical and research work in interdisciplinary and comparative areas of administrative and management sciences, and consequently the competence to critically monitor (evaluate, improve) known factors and to develop new solutions to scientific problems and practice of comparative administrative (procedure) law,
- the competence to work independently on scientific and/or technical projects and the most complex work systems concerning administrative procedure law, together with the capacity to identify the related problems in practice, with constant relation to the comparative and evaluation approaches and with consideration of the relations in the interdisciplinary field of administrative law,
- the course will outline the theoretical background and practical application of students’ research work, confronting it with the basic epistemological and methodological problems in the light of contemporary findings of scientific theory; students will eventually master the instruments necessary for self-reflection and criticism of scientific research of others, with emphasis on the legal aspects of administrative science.
2. Content (Syllabus outline)
Administrative procedure law in supra/national legal systems and fundamental human rights of good governance (The impact of the constitutional system and tradition on administrative procedure law in selected countries, tradition and modernisation of administrative procedure (USA, Germany and Austria, France and Scandinavia)
The notion of public interest in administrative cases in national legal systems, in EC law and ECHR practice
The relation between general and sector-specific regulation (subsidiarity; EU characteristics in terms of competition and state aid)
Basic principles of administrative procedure in the legal system and case law of the EC, EU countries, former Yugoslav republics, and USA – general: The right to good administration, The rule of law, legality (material and formal), justified expectations and proportionality, equality (non-discrimination) before the law, impartiality
Basic principles in administrative procedure: The right to be heard, Standards of proof, Accessibility and transparency, access to the file, confidentiality and protection of secrecy, Deciding within reasonable time, Giving/stating reasons, Efficiency of administrative procedure
Parties in administrative procedure – comparison between selected countries (Slovenia, former Yugoslav republics, Austria, Germany, France, Sweden, Finland, Estonia, Japan, etc.) and within the EU: Material and territorial jurisdiction of decision-makers in specific administrative matters, Conditions for officials and exclusion as a result of partiality
Characteristic and status of the party, representation of the party
Rules governing the course of procedure – comparison between selected countries and within the EU (Initiating the procedure, Using language/s in administrative procedure, electronic communication, Establishing and proving facts, Issuing decisions , The importance of notification for the application of legal effects, The validity of administrative acts (enforceability, annulment, time-bar, etc.)
Mediation in administrative procedure, public law contract
Enforcement of individual administrative acts in national and supranational environments
Judicial review and other forms of supervision over the legality of specific administrative acts in EC law and selected EU countries
- Androjna, V., Kerševan, E. (2006): Upravno procesno pravo, GV založba, Ljubljana, 200 str.
- Breznik et al. (2008): ZUP s komentarjem, GV založba, Ljubljana, izbranih 50 strani.
- Breznik et al. (2008): ZUS-1 s komentarjem, GV založba, Ljubljana, izbranih 100 strani.
- Cananea, G. D. (2003): Beyond the State: The Europezation and Globalization of Procedural Administrative Law, European Public Law, Vol. 9, Issue 4, str. 563–578.
- Craig, P. (2006): EU Administrative Law, Oxford University Press, Oxford (poglavja 8. PFoundations, 10. Access, 11. Process, 13. Law, Fact and Discretion, 16. Legal Certainty and Legitimate Expectations, 20. Remedies, skupaj cca 100 strani).
- Errera, R. (2003): Government Action and Citizens: General Context, Principles and Rules, SIGMA Draft Paper, Pariz, interno gradivo, 10 strani.
- Koja, F. (begründet von Antoniolli, W.) (1996): Allgemeines Verwaltungsrecht, 3., völlig neu bearbeitete Auflage, Manzsche Verlags- und Universitätsbuchhandlung, Dunaj, izbranih 50 strani.
- Koprić, I. (2005): Administrative Procedures on the Territory of Former Yugoslavia, Regional Workshop on Public Administration Reform and EU Integration, OECD PUMA, Budva, www.oecd.org/dataoecd/52/20/36366473.pdf (8 strani).
- Koprić, I., & Đulabić, V. (ur.) in drugi (2009) Modernizacija općeg upravnog postupka i javne uprave u Hrvastkoj (Zagreb: Institut za javno upravu in Društveno veleučilište u Zagrebu), izbranih 30 strani.
- Kovač, P. et al. (2011): Razvoj slovenske javne uprave 1991–2011, Uradni list RS, Ljubljana ( v tisku, poglavje o upravnem procesnem pravu, 15 strani).
- Principles of Good Administration, Agency for Public Administration, Stockholm, www.statskontoret.se/upload/Publikationer/2005/200504.pdf (januar 2009) (90 strani).
- Rusch, W. (2009) Administrative Procedures in EU Member States, v: Conference on Public Administration Reform and European Integration (Budva: SIGMA), www.oecd.org/dataoecd/49/34/42754772.pdf, 10 strani.
- Trpin, G. (2006): Postopek občevanja med državljani in organi javnih oblasti - novi koncept splošnega upravnega postopka, Javna uprava, let. 42, št. 2/3, str. 257–272.
4. Intended learning outcomes
Students will understand administrative process as part of instrumental public governance. Students can distinguish allowed in illegal
exercise of rights and the imposing of obligations before administrative and other bodies which make decisions with regard to administrative matters. They will manage metodological knowledge on research in profession and science. The student will be able to critically asses the administrative process in Slovenia and elswhere and also understand caues and effects of different systems, according to modern governance principles in EU and broader. They will be able to regulate national law in this respect.
5. Learning and teaching methods
- The course will consist of lectures and seminars held in the lecture room as well as of individual study and research activities. The lectures are intended to provide the theoretical basis of the topics concerned and present the regulation of administrative procedure in selected countries by incorporating individual rules in the system of administrative procedure law and good governance.
- During seminars, students will be assisted by a mentor and will select, define and analyse, either individually or in smaller groups, a specific procedural institution in a given country, or a specific case from case law, and present it to other students.
- In addition to attending lectures and seminars, students will prepare a research paper intended to compare and analyse either individual institutions or the entire regulation of general or specific administrative procedures in selected supra/national legal systems (with particular emphasis on comparison with Slovenia), or to analyse and critically evaluate the application of rules in specific cases before the ECHR or the Constitutional Court of Slovenia. They will be required to prepare an analysis of the state of affairs (problem), develop hypotheses, present the possible solutions, select and explain the most favourable solution, and draw up a plan to solve the problem with emphasis on an overall analysis of the effects and consequences of the selected project or initiative. They will strictly consider the research approaches and methods of administrative law. They will present their findings in the form of a written scientific paper and offer them for review to the course coordinator and colleagues at lectures.
- Participation at lectures and seminars and active contribution to the seminar will be evaluated with up to 50 percentage points, whereby the positively evaluated research paper or scientific contribution should comprise an independent analysis of the selected problem of at least 5000 words and methodologically comply with criteria for a (short) original or at least surveying scientific paper - 50%
- The oral or written exam will be evaluated with the remaining percentage points - 50%