Lectures in COMPARATIVE ADMINISTRATIVE LAW

Transcription

1 Lectures in COMPARATIVE ADMINISTRATIVE LAW Office: Selanov trg 7, Ljubljana (Slovenia) Telephone: +386(0) SYLLABUS JUNE 2013 Professor Slobodan DUJIĆ CLASS: Thursday, 6 June 2013 (09:00-13:00) and Friday, 7 June 2013 (14:30-19:00) VENUE: SR (C1); University of Graz, Faculty of Law; DESCRIPTION Comparative Administrative Law deals with the comparative legal regulation of governmental power, both in the state s relations with individuals and in the allocation of power among various institutions in different (selected) countries i.e. legal systems. In general, Administrative law has two distinct aspects: enabling and controlling. The workshop will explore how the law enables government to create institutions and programs to provide public goods and public services, and who oversees and controls the exercise of these powers. The discussion will be about the rights of those affected and how they can challenge abuses of this power, and also whether it is possible to challenge government for failure to exercise the powers given to it. The workshop Comparative Administrative Law aims at giving course participants an overview of the selected topics in administrative systems of Albania, Armenia, Austria, Bosnia and Herzegovina, Kosovo, and Pakistan. The lecturer and students will shortly present selected topics: the organisations of administrative systems, (general) administrative procedures as well as functions and procedure of administrative control executed by courts (so-called administrative dispute ). The efforts made by these countries to reform their administrative systems and these efforts impact on future developments in West and South Eastern Europe will also be discussed. Key components of this workshop are team work and intercultural learning. Workshop participants with a background in the respective countries will be asked to provide short country reports i.e. presentations for certain selected topics. Workshop participants with relevant country background will be asked to act as presenters and discussants in the classroom. 1

2 FORMAT Lecture, presentation by students, and class discussions. LEARNING OBJECTIVES The learning objectives for this workshop are for each student to: - be able to identify administrative law issues; - be able to understand some similarities and differences between different administrative systems; - acquire a clear understanding of sources of administrative law and fundamental administrative law principles; - develop a framework for analyzing and resolving basic administrative law problems; - develop a critical perspective on how administrative law works in Europe, an awareness of basic current issues and developing trends in administrative law; CLASS REQUIREMENTS Lecturer will evaluate all contributions prepared by students in written form, their presentations, as well as the quality of discussions during this workshop. READING MATERIALS Texts delivered to students for workshop: 1. Organizing the Central State Administration; Policies and Instruments; SIGMA Paper No. 43, GOV/SIGMA(2007)7, OECD, June 2007 (enclosed: Organizing Ministries and Agencies - Recent Trends in OECD Member Countries, drawn from various OECD publications; OECD (2002), Distributed Public Governance: Agencies, Authorities and Other Government Bodies, OECD, Paris, ISBN X); 2. Public Sector Modernization: Changing Organizational Structures, Policy Brief, OECD Observer, OECD, September 2004; 3. Administrative Procedures in EU Member States; Conference on Public Administration Reform and European Integration Budva, Montenegro26-27 March 2009, OECD, Sigma, Paris; 4. Judicial Control of the Administration in Europe: Progressive Construction of a Common Model, Jean-Marie Woehrling, France, Sigma, Paris, February Useful additional reading: 5. OECD (2002), Recent privatization trends in OECD countries, Financial Market Trends No. 82, June, OECD, Paris, ISSN X; 6. OECD (2003), Privatizing State-owned Enterprises: An Overview of Policies and Practices in OECD Countries, OECD, Paris, ISBN ; 7. Cabinet Office, United Kingdom (Crown copyright, 2002), Better Government Services: Executive Agencies in the 21st Century, available at 8. Fabrizio Gilardi (2003), Spurious and Symbolic Diffusion of Independent Regulatory Agencies in Western Europe, paper presented at workshop on The Internationalization 2

3 of Regulatory Reforms, Center for the Study of Law and Society, University of California at Berkeley, April 2003; 9. Derek Gill (2002), Signposting the Zoo From Agencification to a More Principled Choice of Government Organizational Forms, OECD Journal on Budgeting, Volume 2, Number 1; 10. Salvatore Schiavo-Campo and Pachampet Sundaram (2001), To Serve and to Preserve: Improving Public Administration in a Competitive World, Asian Development Bank; 11. Sally Washington (1998), Pieces of the Puzzle: Machinery of Government and the Quality of Policy Advice, Working Paper No. 4, State Services Commission, available at The administration and you - A handbook (1998), Council of Europe, Strasbourg, France, ISBN ; 13. Comparative Analysis: Organization of the State Administration Systems in selected European Countries (enclosed internal text); 14. Goodnow, Frank J.: Comparative Administrative Law: an Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany (Clark, N.J.: Lawbook Exchange, 2005); 15. Seerden, Rene and Frits Stroink, ed.: Administrative Law of the European Union, Its Member States and the United States: a Comparative Analysis (Antwerpen: Intersentia, 2002). 16. Schwartz, Bernard: French Administrative Law and the Common-Law World (Clark, N.J.: Lawbook Exchange, 2005); 17. Craig, Paul P. EU Administrative Law (Oxford: Oxford University Press, 2006); 18. John Adler, Constitutional and Administrative Law, Second Edition, MacMillan; 19. Evans, J.M. et al.: Administrative Law: Cases, Text, and Materials, 5th ed. (Toronto: Emond Montgomery, THE WORKSHOP PROGRAMME - enclosed special programme 3

4 Lectures in COMPARATIVE ADMINISTRATIVE LAW SYLLABUS JUNE 2013 Professor Slobodan DUJIĆ Office: Selanov trg 7, Ljubljana (Slovenia) Telephone: +386(0) CLASS: Thursday, 6 June 2013 (09:00-13:00) and Friday, 7 June 2013 (14:30-19:00) VENUE: SR (C1); University of Graz, Faculty of Law; DESCRIPTION AN APPROACH: 1. What is Comparative Administrative Law (what does it comprise; how do we recognize substance of Administrative Law)? - dominant administrative law principles vs. dominant private law principles; - dominant sources of administrative law vs. dominant sources of private law; - similarities and differences between administrative systems (especially those developed on the basis of the separation of powers principle vs. the others developed on the basis of the unity of powers principle; - the comparative legal regulation of governmental organization and powers, both in the state s relations with individuals and in the allocation of powers among various institutions in different (selected) countries i.e. legal systems; - how the law enables government to create institutions and programs to provide public goods and public services? - who oversees and controls the exercise of administrative powers? - the rights of those affected and how they can challenge abuses of administrative power? - is it possible to challenge government and administrative authorities for failure to exercise and/or to abuse the powers granted to them? 1

5 2. Which aspects of Comparative Administrative Law will be explored during the lectures? - a few (comparatively interesting) topics concerning the organisation of administrative systems in represented countries, - a few (comparatively interesting) topics concerning the administrative procedures in represented countries; - a few (comparatively interesting) topics concerning functions and procedure of administrative courts in represented countries; 3. Which countries will be (mainly) presented and compared? a) the base-line countries (which offer basic models for this course): - France (semi-presidential system), - Slovenia (parliamentary system), - the U.S.A. (presidential system). b) the comparing countries (represented by students from these countries): - Albania (selected organizational, procedural and judicial - control aspects), - Armenia (selected organizational, procedural and judicial - control aspects), - Austria (selected organizational, procedural and judicial - control aspects), - Bosnia and Herzegovina (selected organizational, procedural and judicial - control aspects), - Kosovo (selected organizational, procedural and judicial - control aspects), - Pakistan (selected organizational, procedural and judicial - control aspects). LECTURES DESCRIPTION TOPICS: THURSDAY, I. TOPIC: INTRODUCTION BY PROFESSOR TO ALL SELLECTED TOPICS A SHORT (GENERAL) OVERVIEW: 35 min, Thursday, : 09:00-09:35; - What do we understand under the term Administrative Law? The most important elements of an administrative law system: a) administrative organization, 2

6 b) administrative activities, c) control over the administrative acts and administrative decisions, d) administrative responsibility (liability) for damages to the third parties, A few thoughts about the development of the Administrative Law in Europe: France, Austria, Germany, Slovenia some most important authors; Administrative Law in Great Britain (Dicey)? - What do we understand under the term Administrative Comparative Law? - Different global models for Administrative Organization in Europe: a) a Scandinavian model vis-à-vis a Central European model for administrative organization; - Introduction to the development and main characteristics of (General) Administrative Procedure in Europe: Austria, Czech Republic and (the first) Yugoslavia; Developments of the procedural Development of administrative procedures in Europe: Austria, Czech Republic and (the first) Yugoslavia; Developments of the procedural administrative law and Anglo-American legal system; Present situation (latest changes during the public administration reform processes and the EU pre-accession period in some surrounding countries); - Administrative Courts: Judicial Review ( Administrative Dispute ) i.e. control over the legality of administrative acts and administrative decisionmaking (control over the legality of administrative acts vis-à-vis the so-called full-jurisdiction control ; the most important procedural rules; administrative dispute ). 10 min (Thursday, : 09:35-09:45): questions by students; discussion between Professor and all the participants (main findings and conclusions); II. TOPIC: COMPARATIVE ADMINISTRATIVE ORGANIZATION 35 min (Thursday, ; 09:45-10:20); - Introduction by Professor: main organizational features i.e. characteristics of different administrative systems (especially regarding the relationship between the Executive and Legislative powers); Agencification as a trend in modern administrative organizational systems; The main elements of the system of checks and balances ; The Scandinavian and Central European model; Position of the Governments within the so-called mono-cefal and bicefal structures of the Executive branch of government;: a) U.S.A. the presidential system of the state organization; b) France the semi-presidential system ( presidential-parliamentary system) of the state organization; c) Slovenia one of different forms of the parliamentary systems of the state administration; 15 min (Thursday, : 10:20-10:35): elaboration The main organizational settings of the Albanian central and de-concentrated State Administration; Trend of Agencification in Albania? a) Albania (Ms Evi Sadushaj) 3

7 Break: 10:35-10:50 15 min (Thursday, : 10:50-11:05): elaboration The main organizational settings of the Armenian central and de-concentrated State Administration; Trend of Agencification in Armenia? b) Armenia (Mr Artem Kocharyan) 15 min (Thursday, : 11:05-11:20): elaboration The main organizational settings of the Austrian central and de-concentrated State Administration; Trend of Agencification in Austria? c) Austria (Mag. Wolfgang Mair) 15 min (Thursday, : 11:20-11:35): elaboration The main organizational settings of the Bosnia and Herzegovinian central and de-concentrate State Administration; Trend of Agencification in Bosnia and Herzegovina? d) Bosnia and Herzegovina (Mag. Obrad Pajdić) 15 min (Thursday, : 11:35-11:50): elaboration The main organizational settings of the Kosovar central and de-concentrated State Administration; Trend of Agencification in Kosovo? e) Kosovo (Ms Miranda Brovina and Mr Halil Kosumi) 15 min (Thursday, : 11:50-12:05): elaboration The main organizational settings of the Pakistanian central and de-concentrated State Administration; Trend of Agencification in Pakistan? e) Pakistan (Mr Muhammad Amir Siddique) 10 min (Thursday, : 12:05-12:15): final questions and discussions by students; discussion between Professor and all the participants (main findings and conclusions); - to which system of the typical state organization can we classify presented countries i.e. their current organizational settings (if any)? - can we detect any major deviation between the typical and the other presented systems? If yes, which are the most prominent deviations? - how the trend of Agencification influences the classical organizational patterns of analyzed countries? 4

8 Break: 12:15-12:30 III. TOPIC: COMPARATIVE ADMINISTRATIVE PROCEDURES 30 min (Thursday, : 12:30-13:00): - introduction by Professor; selected procedural features i.e. characteristics of the following relevant elements of an administrative procedure: which authorities apply and implement the administrative procedure rules during a decision-making process; basic principles of a selected administrative procedure (e.g. audi alteram partem, principle of legality and principle of administrative discretion, etc.), which are possible parties within an administrative procedure in: a) Slovenia General Administrative Procedure Act; b) some other comparative administrative systems and Europe and broader; Conclusion of the first day FRIDAY, min (Friday, : 14:30-14:45): elaboration The main administrative procedure settings of the Albanian system at the first and second administrative procedure levels; a) Albania (Ms Evi Sadushaj) 15 min (Friday, : 14:45-15:00): elaboration The main administrative procedure settings of the Armenian system at the first and second administrative procedure level; b) Armenia (Mr Artem Kocharyan) 15 min (Friday, : 15:00-15:15): elaboration The main administrative procedure settings of the Austrian system at the first and second administrative procedure level; c) Austria (Mag. Wolfgang Mair) 15 min (Friday, : 15:15-15:30): elaboration The main administrative procedure settings of the Bosnian and Herzegovinian system at the first and second administrative procedure level; d) Bosnia and Herzegovina (Mag. Obrad Pajdić) 5

9 15 min (Friday, : 15:30-15:45): elaboration The main administrative procedure settings of the Kosovar system at the first and second administrative procedure level; e) Kosovo (Ms Miranda Brovina and Mr Halil Kosumi) 15 min (Friday, : 15:45-16:00): elaboration by student and a short discussion: The main administrative procedure settings of the Pakistanian system of administrative procedure; e) Pakistan (Mr Muhammad Amir Siddique) 10 min (Friday, : 16:00-16:10): final questions and discussions by students; discussion between Professor and all the participants (main findings and conclusions); - main general conclusions about the administrative procedures in presented countries? - similarities and differences among the presented (selected) aspects of the administrative procedure legislation in different systems? Maybe some ideas about future trends in this field? Break: 16:10-16:30 IV. TOPIC: COMPARATIVE JUDICIAL ADMINISTRATIVE REVIEW (i.e.»dispute») SYSTEMS 35 min (Friday, : 16:30-17:05); - introduction by Professor; selected features i.e. characteristics of different (selected) judicial review systems of the following aspects: court system (which courts are competent for conducting judicial review i.e. legal control over the legality of administrative acts and administrative decision-making; ways of opening of an judicial review procedure; possible deficiencies of an administrative act i.e. administrative decision; What are possible court decisions within an administrative review ( dispute ) process; a) France; b) Slovenia; c) some other comparative systems in Europe; 15 min (Friday, : 17:05-17:20): elaboration The main organizational and procedural settings of the Albanian administrative dispute system; a) Albania (Ms Evi Sadushaj) 6

10 15 min (Friday, : 17:20-17:35): elaboration The main organizational and procedural settings of the Armenian administrative dispute system; b) Armenia (Mr Artem Kocharyan) 15 min (Friday, : 17:35-17:50): elaboration The main organizational and procedural settings of the Austrian administrative dispute system; c) Austria (Mag. Wolfgang Mair) 15 min (Friday, : 17:50-18:05): elaboration The main organizational and procedural settings of the Bosnian and Herzegovinian administrative dispute system; d) Bosnia and Herzegovina (Mag. Obrad Pajdić) 15 min (Friday, : 18:05-18:20): elaboration The main organizational and procedural settings of the Kosovar administrative dispute system; e) Kosovo (Ms Miranda Brovina and Mr Halil Kosumi) 15 min (Friday, : 18:20-18:35): elaboration by student and a short discussion: The main organizational and procedural settings of the Pakistanian administrative dispute system; e) Pakistan (Mr Muhammad Amir Siddique) 5 min (Friday, : 18:35-18:40): final questions and discussions by students; discussion between Professor and all the participants (main findings and conclusions); 20 min (Friday, : 18:40-19:00): questions by students; discussion between Professor and all the participants (final findings and conclusions); - main general conclusions about the system in place in presented countries (if any)? - main general conclusions about the substantive and formal (procedural) aspects of the selected judicial review systems and selected topics? - similarities and differences among the presented legal systems (concerning the selected topics)? Possible ideas about future trends in all elaborated topics? - EVALUATION OF LECTURES (students fill in the evaluation forms). 7