Administrative Law for Public Management (2 credits) Department of Public Policy Winter Term

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1 Administrative Law for Public Management (2 credits) Department of Public Policy Winter Term Gar Yein Ng, Assistant Profess Department of Legal Studies, Office Nádor u. 11, 517 Tel: ext gyngatceu.hu Marie-Pierre Granger, Associate Professor Department of Public Policy, Office: Nádor u. 11, 201A Tel: grangerm@ceu.hu Webpage: Skype name: mariepgranger Course Description The course Administrative law for public management provides an introduction to administrative law from a comparative and supranational perspectives, relevant to policy-makers. The legal systems covered are essentially European, but reference is also made to non-european legal systems, in particular that of the United-States. The course relies on an analysis of scholarly works and relevant legislation and case law, available in English language, and involves practical exercises. The course starts with a brief introduction to law and legal methods, as applicable to comparative administrative law, and of use to policy-makers. It then identifies and contrasts different administrative organization models and administrative justice systems, against diverse constitutional backgrounds. It continues with a comparative introduction to policy-making, rulemaking/regulation and decision-making by administrative bodies, and discusses related accountability concerns, before reviewing the instruments and sources of administrative law, and their relationship (i.e. hierarchy of norms, parliamentary sovereignty, etc.). The course then explores the range of procedural and substantive rules which frame the acts and actions of supranational, national and local administrations and their relationships with legal and natural persons. The course continues with a critical review of remedies available against defaulting administrations, starting with non-judicial remedies (e.g. Ombudsman, mediation), then looking at judicial review (procedures, standing and merits aspects), and liability of public authorities. It ends on a reflexion on the globalization of administrative law and the use of comparative administrative law as a tool towards better public management. Course goals The course aims at providing students with a basic understanding of administrative law rules and procedures which are relevant to the activities of policy-makers, in the European context. It endeavours to equip them with the basic skills necessary to access, understand and use legal sources in the course of policy-making. Learning outcomes Content literacy

2 At the end of the course, the students should be aware of the diversity of administrative organization and justice models, have a basic understanding of the process of rule-making and be able to discuss accountability concerns. They should be familiar with the most important procedural and substantive rules which frame the actions of local, national and supranational administration, and be able to identify suitable remedies against these administrative actions or inactions. Subject specific skills At the end of the course, students should be able to compare and evaluate the administrative law rules and procedures from number of different legal systems. They should be able to brief administrative law cases. Cognitive skills At the end of the course, students should be able to identify, synthesize, analyze and evaluate primary and secondary sources of administrative law and to reason according to diverse types of administrative law paradigms. Key academic transferable skills At the end of the course, students should be able to communicate effectively in writing and orally to both legal and non-legal audience, and write in an analytical and critical way. Interdisciplinary skills At the end of the course, students should be familiar with the basic features of legal reasoning and legal research, for public policy purposes. Course requirements Students registered for the course must attend classes regularly and participate actively in class discussions. Missing more than 1 class without justification may result in failing the class. All students must read the mandatory reading and other tasks assigned in preparation of the class. All students must actively participate in class discussions and activities. Each student must make a presentation on a topic assigned in advance, and must relate it to a recent news item and elaborate on it. In addition, students must write a words final seminar paper on a topic under the scope of the course and approved by the teacher. The paper must include a comparative analysis of at least two legal systems. Grading is based on class participation (20%), presentation (20%) and final paper (60%). Bibliography Books R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United- States: A Comparative Analysis (2 nd ed., Intersentia, 2007) S. Rose-Ackerman and P. Lindseth, Comparative Administrative Law (E.Elgar Publishing, forthcoming Dec. 2010) M. Ruffert, ed.,the Transformation of Administrative Law in Europe (European Law Publishing, 2007) Craig, EU Administrative Law, Oxford University Press, 2006 P. Craig, D. Tomkins, Executive and public law (Oxford University Press, 2006) M. Künnecke, Tradition and Change in Administrative Law, An Anglo-German Comparison (Springer, 2007) P. Leyland, and G. Anthony, Textbook on Administrative Law (6 th ed., OUP, 2009) P. Cane, Administrative Law (4 th ed., 2004) T.T.Ziamou, Rulemaking, participation and the limits of public law in the USA and Europe (Ashgate, 2001)

3 C. Harlow and R. Rawlings, Law and Administration (Butterworths, 2nd ed., 1998) D. Fairgrieve, State Liability in Tort: A Comparative Law Study (Oxford University Press, 2003_ D.J. Galligan, Due Process Rights in Administrative law (Clarendon press, Oxford 1996) F.J. Goodnow, Comparative administrative law: an analysis of the administrative systems, national and local, of the United States, England, France, and Germany (Beard Books, 2000). K.H. Ladeur, The Europeanisation of Administrative Law: transforming national decision-making procedures (Ashgate, 2003). M Taggart (ed), The Province of Administrative Law (Oxford: Hart Publishing, 1997) J. Schwarze, European Administrative Law (Sweet & Maxwell, 2006) P. Cane, Administrative Tribunals and Adjudication (Hart, 2009) E. Fisher, Risk Regulation and Administrative Constitutionalism (Hart, 2007) J. Bell, S. Boyron, and S. Whittaker, Principles of French Law (Oxford University Press, 1998), Ch. 4 and Ch. 6. L.N. Brown, J. Bell, and J.M. Gallabert, French Administrative Law (Oxford University Press, 1998) A. Freckmann and T. Wegerich, The German Legal System (Sweet & Maxwell, 1999) D.J. Galligan and D.M Smilov, Administrative Law in Central and Eastern Europe (CEU Press, 1999) D.J. Galligan, R.H Langan II, and C.S Nicandrou (eds), Administrative Justice in the New European Democracies: Case Studies of Administrative Law and Process in Bulgaria, Estonia, Hungary, Poland and Ukraine (COLPI, OSI, 1998). J.H. Jans, R. de Lange, S. Prechal and R.J.G.M Widdershoven, Europeanization of Public Law (European Law Publishing, 2007). Journals European Public Law Public law Journal of public policy Web resources TSol (2006), A Judge Over Your Shoulder (a brochure aimed at administrators) Her Majesty s Court s Service, Note of Guidance for applying for judicial review (UK), French law database (in French, but some documents available in English): Webpage of information in English about the German Federal Administrative Court (Bundesverwaltungsgericht) German statutes in English: European Group for Public Administration, Law and Public Admintistration Theme,

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5 Syllabus Class 1 (GYN) A brief introduction to administrative law and legal methods Students will discuss the concept of administrative law, its nature, purpose, scope and evolution, in a comparative perspective. o C.F.Stychin, Legal Method: text and materials (Sweet & Maxwell, 1999) 1-21 o J.B Auby and L. Cluzel-Métayer, Administrative law in France in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o R. Seerden and F. Stroink, Administrative law in the Netherlands in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o K. Thompson and B. Jones, Administrative Law in the United-Kingdom in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United- States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o M. Schröder, Administrative Law in Germany in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) Class 2 (GYN) Models of administrative organization and justice This class introduces the diverse models for administrative organizations found in Europe, and reviews trends towards increased reliance on independent agencies and participation of private actors in public activities (contracting-out, public-private partnership, etc.). It then introduced various existing systems of administrative justice. o G. Majone, From the Positive to the Regulatory State, (1997) 17:2 Journal of Public Policy o J.B Auby and L. Cluzel-Métayer, Administrative law in France in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) 63-66, o M. Schröder, Administrative Law in Germany in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o Section I to VI of the Bundesverwaltungsgericht information webpage in English: o K. Thompson and B. Jones, Administrative Law in the United-Kingdom in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United- States: A Comparative Analysis (2 nd ed., Intersentia, 2007) , Optional reading: o D. Halberstam, The Promise of Comparative Administrative Law: A Constitutional Perspective on Independent Agencies in S. Rose-Ackerman, P. Lindseth, eds., Comparative Administrative Law, S. Edward Elgar, 2010; also available as U of Michigan

6 Public Law Working Paper No. 195/2010SSRN: Class 3 (MPG) Policy/ rule-making and individual decision-making by administrations This class deals with the types of measures that public bodies, or private bodies fulfilling public functions, can adopt, and review (some) mechanisms guaranteeing greater accountability of administrative actions, such as the principles of legality (linked to the hierarchy of norms). o P.Strauss, Rulemaking in the Ages of Globalization and Information: What America Can Learn from Europe and Vice Versa ( ) 12 Columbia Journal of European Law o Tsol (2006), A Judge Over Your Shoulder (a brochure aimed at administrators) pps 8-10 o D.J. Galligan, R.H Langan II, and C.S Nicandrou (eds), Administrative Justice in the New European Democracies: Case Studies of Administrative Law and Process in Bulgaria, Estonia, Hungary, Poland and Ukraine (COLPI, OSI, 1998), Ch.5 Administrative Investigation: Health, Cleanliness and Safety in Restaurants, pps Class 4 (GYN) Normative framework I: good administration and human rights This class starts with exploring the concept, nature and scope of the principle of good administration, which serves as a benchmark for all European legal systems, and engages in a discussion of good governance in a legal perspective. It continues with an analysis of how human rights norms frame administrative actions, with a particular focus, as a case study, on the impact of the Human Rights Act in the UK. o Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration, 20 June 2007, o Article 41 of the EU Charter of Fundamental Rights (Right to Good Administration) o J. Mendes, Good Administration in EU Law and the European Code of Good Administrative Behaviour, 1 July 2009; EUI Working Papers Law No. 2009/09. Available at SSRN: o D. Mead, Judicial Miss Behaving': A Defence of Process-Based Review of Public Authority Decisions under the Human Rights Act 1998, July 2, 2008; Norwich Law School Working Paper No. 08/02. Available at SSRN: Optional: o T. Von Danwitz, Good Governance in the Hands of the Judiciary: Lessons from the European Example, 7 May Potchefstroom Electronic Law Journal, Vol. 13, No. 1, Available at SSRN: Class 5 (GYN) Normative framework II: due process This class will provide a comparative overview of the procedural norms which constrain administrative actions, sometimes referred to as the rights of the defense (or procedural due

7 process in the US, or the rules of natural justice (UK), the right to adequate notice, the right to assistance and representation, the duty to give reasons, the right of access to one s file, the principles of transparency and access to documents, the right to a hearing, rights to participate in decision-making procedures, legal privilege, protection against self-incrimination, etc.) o C. Harlow, Global Administrative Law: The Quest for Principles and Values (2006) 17:1 EJIL , Section 5: Human Rights as Sources of Administrative Law: Due Process, o F.Bignami, "Three Generations of Participation Rights before the European Commission," Law and Contemporary Problems, 68: (2004), o (Or F. Bignami, Creating European Rights: National Values and Supranational Interests (2005) 11 Columbia Journal of European Law 241, available on Westlaw) Optional: o D.E. Shipley, Due Process Rights Before EU Agencies: The Rights of Defence, (2008) 37:1. Georgia Journal of International and Comparative Law; UGA Legal Studies Research Paper No Available at SSRN: o B. Bugaric, Openness and Transparency in Public Administration: Challenges for Public Law (2004) 22 Wisconsin International Law Journal 483 (available on Westlaw) Class 6 (MPG) Normative framework III: substantive principles of administrative law In this class, we will focus on substantive rules of law which constrain administrative action and which find expressions in the various European legal systems, such as legitimate expectations and proportionality/reasonableness. We will compare and contrast the way these concepts are labelled and operationalized in various administrative law traditions, and discuss to what extent these rules and their application are being harmonized across Europe. o G. Nolte, General Principles of German and European Administrative Law: A Comparison in Historical Perspective (1994) 57:2 Modern Law Review pps o M. Bobek, Reasonableness in Administrative Law: A Comparative Reflection on Functional Equivalence, 1 March 2008; Eric Stein Working Paper No. 2/2008. Available at SSRN: Further reading (e.g. for presenters) R. Thomas, Legitimate expectations and proportionality in administrative law (Hart Publishing 2000). Class 7 (MPG) Risk regulation in Europe, and the precautionary principle In this class, we will explore the increasingly delicate issue of risk regulation, and to what extent the legal principle of precaution can help (or not) in improving the ability of public authorities to manage risk effectively, whilst also satisfying legitimacy demands. Mandatory reading(alternative list): Or o J.M. Carrau, Lack of Sherpa for a G.M.O. Escape route in the EU (2009) 10 German Law Journal 1169

8 o E. Fisher, Risk regulation and administrative constitutionalism (Hart Publishing, 2007), Part 1, Ch. 2: BSE: Expertise and Administrative Constitutionalism: Examining the role of the Southwood Working Party pps Optional: o M. Simoncini, Risk regulation approach to EU policy against Terrorism in the light of the ECJ and CFI jurisprudence (2009) 10 German Law Journal 1526 (Available on Westlaw) Class 8 (GYN) Non-judicial remedies This class will review the range of non-judicial remedies available against administrative bodies, such as complaints procedure, mediation, and ombudsmen. o Andrew Le Sueur, Administrative justice and the Rise of Informal Dispute Resolution in England in M. Ruffert, ed.,the Transformation of Administrative Law in Europe (European Law Publishing, 2007) o Sophie Boyron, Mediation in Administrative Law: The Search for Experimental Administrative Law in M. Ruffert, ed.,the Transformation of Administrative Law in Europe (European Law Publishing, 2007) o Drewry, G Ombudsmen and administrative law shining starts in a parallel universe EGPA Conference, Rotterdam, September 2008: Study Group on Law and Public Administration, pdf o Consult the website of the European Ombusman at and identify an action of the Euro-Ombusman which seemed to have made a difference. o Read the section of The role and purpose of Ombudsmen, under the European Network of Ombudsmen section, at Class 9 (MPG) Judicial review I: admissibility aspects In this class, we will examine the admissibility aspects of judicial review, i.e. which acts can be reviewed and who has standing to challenge administrative acts, as well as time-limits. We will compare and contrast the ways various European legal systems give different emphasis to these questions, as compared to the merits dimension. We will also review the forms of suit/causes of actions available across selected legal systems. Mandatory reading (short extracts): o J.B Auby and L. Cluzel-Métayer, Administrative law in France in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o M. Schröder, Administrative Law in Germany in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007)

9 o K. Thompson and B. Jones, Administrative Law in the United-Kingdom in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United- States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o P. Harter, Administrative Law in the United States in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) , o R. Widdershoven, European Administrative Law in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007), Class 10 (MPG & GYN) Judicial Review II: Merits in practice After an analysis of the scope and intensity of judicial control over administrative acts, and the grounds of annulment traditionally relied on in European legal systems, we will have a little practice session, which will help us identify, compare and contrast the treatment of one particular set of facts in different legal systems, examining both processes and outcomes. The students will be given a scenario at the beginning of the class, and relying on the knowledge acquired so far in the course, present the way the case would be handle in a selected numbers of legal systems. o L. Bär, lawyer at Scharpf and Associates, Introduction to the system of legal protection under administrative law in Germany at o o Tsol (2006), A Judge Over Your Shoulder (a brochure aimed at administrators) o J.B Auby and L. Cluzel-Métayer, Administrative law in France in R.J.H Seerden (ed.), Administrative Law of the European Union, its Member States and the United-States: A Comparative Analysis (2 nd ed., Intersentia, 2007) o J. Bell, S. Boyron and S. Whittaker, Principles of French Law (Oxford University Press, 1998), Ch. 6: Administrative Law, Section Grounds of Review, pps Optional: o Craig, Paul P., Judicial Review and Questions of Law: A Comparative Perspective (September 30, 2009). Comparative Administrative Law, Susan Rose-Ackerman, Peter Lindseth, eds., 2010; Oxford Legal Studies Research Paper No. 56/2009. Available at SSRN: Class 11 (MPG) Public authorities liability In this class, we will examine the possibility to sue the administration for damages. In order to understand the nature and scope of state liability for administrative actions, we will compare the way different legal systems approach a similar issue in different manners and which outcomes they reach. o W. van Gerven, Cases, Materials and Text on National, Supranational and International Tort Law (Oxford and Portland Oregon: Hart, 2000), section on

10 Conduct of public authorities pps o M. Künnecke, Tradition and Change in Administrative Law, An Anglo-German Comparison (Springer, 2007), Ch. 5 Governmental Liability [English-German Comparison], pp Optional: o D. Fairgrieve, State liability in Tort Law (Oxford University Press 2003), Ch. 2 pp.7-27 Class 12 (MPG-GYN) 12 Conclusions: towards global administrative law? In this last class, we will place administrative law in a wider context, and examine whether there is convergence around universal or global administrative law standards and procedures, which frame public authorities actions in national, supranational and transnational contexts. Students should read one of the following texts, as allocated in advance, and be able to interact actively in the class debate. Mandatory reading (alternative list): o K.H. Ladeur, The Europeanisation of Administrative Law: transforming national decision-making procedures, (Ashgate, 2003) Introduction (p.1-14), o Ladeur, K.H. & Prelle, Judicial Control of Administrative Procedural Mistakes in Germany: A comparative European view of Environmental Impact Assessments in K.H. Ladeur, The Europeanisation of Administrative Law: transforming national decision-making procedures (Ashgate, 2003), pps o J. Olsen, 'Towards a European administrative space?',(2003) 10:4 Journal of European Public Policy, , URL: o C. Harlow, Global Administrative Law: The Quest for principles and values (2006) 17 EJIL 187. o S. Cassese, Global Standards for National Administrative Procedure (2005) 68 Law and Contemporary Problems