Administrative-Law-II PDF

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CONECPT OF LEGAL FORMS OF PUBLIC ADMINISTRATION ACTIVITY Normative acts: Universally binding normative acts and internal normative acts. Administrative acts: Imperious legal form of public administration activity designated by law. Civil acts: performed by administrative bodies: civil agreements and public agreements Other action of public administration not being acts in law: - technical actions - external administrative acts in law - internat acts in law Legal forms of public administration activity: - activities invested with imperium - activities invested without imperium ADMINISTRATIVE ACTS An administrative act is one of the legal forms of public administration activity (is an example of an act in law). -> An administrative act is 'double concreteness', and is imperious. -> This type of act can be issued only by a body entitled to do so. Violation of this rule will produce so-called 'non-existence' administrative act. -> An administrative act binds only the parties to the administrative relationship. The public body is issuer. NORMATIVE ACTS Normative act is an imperious final decision made by a public administrative body, which contains norms of conduct directed at a generally specified addressee in abstract case. For example: the catalogue of normative universally bindings acts in Poland: - Constitution of the Republic of Poland - international agreements - statues - ratified international agreements -regulations - local law

ADMINISTRATIVE ACT VS NORMATIVE ACT Administrative act: - binds the parties to the administrative relationship - binds the administrative body which is it issuer Normative act: - universally binding

Administrative act: - concrete addressee i.e. Mrs X Mr Y Normative act: - generally specified addressee i.e every citizen, everyone who is in specified situation

Administrative act: - particular case - 'double concretness' Normative act: - abstract cas - 'double general'

Administrative act examples: - license, decision which grants social benefits, building permit, etc. Normative act: - statute, regulation, international agreement ( art. 87 of the Constitution of the RP).

ADMINISTRATIVE ACTS Administrative decision: a. a classical example of an administrative act,

b. an imperious activity of an administrative body aimed to cause individually and concretelly specific legal consequences, c. is defined as a 'double concrete' it means that an administrative act regulates a particular matter and is directed towards a specific addressee, d. its aim is to cause a legal effect: administrative decisions, abolishes, changes or establishes rights and duties in a binding. e. legal basis of an administrative decision is always a statute. -> is of unilateral, external, individual and concrete nature, -> can be called: concession, permit, liecense, consent, etc. -> is used by an administrative body to handle an administrative case, deciding about the subject matter of the case in whole or in the part. -> contains integral units as a specified by law; -> is the subject of control as its provided by law.

-> is a key term in the entire system of administrative procedural law. -> in the area of administrative law, decision does not have an exhaustive definition -> In some cases, the administrative act bearing the characteristic of a decision is referred to as a ''permit'', ''license'', etc. IN EVERY CASE THE QUESTION, WHETHER A GIVEN ACT CONSTITUTES AN ADMINISTRATIVE DECISION, IS RESOLVED BY THE ANALYSIS OF THE CONTENTS OF THE ACT, NOT BY ACT'S NAME. -> In classifying an act as a decision, the name of the act is of no significance. A proposition of the legal definition: 'an unilateral, official administrative act issued by a public body, deciding on the concreto case of an individual entity which is not the results of organizational or contractual subordination to the public body which issued it and is independent from the name given by law to this act'. Formal requirements of an administrative decision: -> In order to be valid, adm. decision shall fulfill specific requirements and shall include specific content. Existence all of these elements is the prerequisite for the validity of an administrative act. -> components of a decision: In particular, the decision shall contain, apart from the ruling, the following components:

[] the identification of the authority [] date of issuance [] identification of a party or parties [] specification of legal basis [] legal and factual substantiation [] instruction of a name and surname and official position of the person authorized to issue the decision. Other components of an administrative decision: -> the decision with regard to which an action may be brought to a common court or a claim may be filed to an administrative court shall also include an instruction on the admissibility of filing the action or claim. -> Specific provisions may also provide for additional components which the decision should include.

According to the Supreme Administrative Court, there are four constitutive elements of every administrative decision: a. the name of the public authority which is component to issue the decision b. the name and the address of the party who the decision is addressed to, c. the settlement of the case, d. a signature with the official stamp of the public authority (the employee who issues the order should indicate his/her name and employment status). Without 8 man elements described by article 107$1 CAP the decision is defective, but without this 4 constitutive elements - it is 'non- existent decision' and this act doesn't exist in the conduct of legal transactions. substantiation -> any factual evidence that helps to establish the truth of something. 1. Factual substantiation of the decision shall in particular include the following: identification of facts which the authority considered to be proven, evidence on which the authority relied and reasons why the authority refused to consider other evidence as credible and refused to rely thereon. 2. Legal substantiation shall in particular include the explanation of the legal basis of the decision with citation of the provisions of law.

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If the decision rules in favor of all of the demands of the party, the authority may choose not to substantiate the decision; however, the above shall not apply to decisions resolving conflicting interests of the parties and the decisions issued as the result of appeal.

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The authority may choose not to substantiate the decision if the possibility of refraining from substantiating the decision or of limiting the substantiation due to the State security interest or public order resulted from statutory provisions hitherto binding.

Mode of the Service: 1. The decision shall be served to the parties in writing. 2. According to 1009 CAP the decision shall be delivered to the parties in writing. There are no other regulations. (general rules - every action must be taken in writing). 3. The authority, which issued the decision, shall be bound by the decision as of the moment the decision has been served ( which means that from that moment onwards the authority may not change the decision). Durability (trwałość) of an administrative decision: Article 16 Decision which are not appealable in the administrative course of instance shall be final. Such decisions may be quashed, amended, declared invalid or the proceedings may be reopened only in instances provided for in the Code or separate statues. Claims may be filed with an administrative court on grounds of violation of law, on terms and according to procedures specified in separate statues. Durability of an administrative act derives from the principle of stability of final decision ( the Code of Administrative Procedure provides for a legal definition of a final decision which is a decision against any appeal cannot be made in administrative proceedings. The appeal cannot be made against the decision taken: - by a body of appeal - in the first instance where the time limit for appeal has already elapsed, - in the first instance by a minister or a self-gorvnment board of appeal, - by a first-instance body to which an appeal cannot be made pursuant to specific provisions. Enforceability of a Decision: A decision shall not be enforceable before the end of the time limit to file an appeal, unless one of the following exceptional circumstances occurs: a. the decision has been appended with immediate enforceability clause b. the decision is compliant with demands of all the parties

c. when it results from specific provisions. It the appeal has been filed within the prescribed time limit, the enforceable on the day it becomes final or if one of the above described circumstances for earlier enforcement occurred. Finality of a Decision 1. Decision, which may not be appealed against in the administrative course of instance, are final. Each final decision is therefore enforceable. For practical reasons, it is worth pointing the fact that the decision becomes final after the time limit to file the appeal ends ineffectively. the time limit shall be calculated as of the day the decision has been served on the last of the parties participating (identified) in the proceedings. 2. The decision becomes final, if none of the parties participating in the proceedings files an appeal within the prescribed time limit. 3. The final decision is stable. Stability of a decision: -> The stability is understood as an absolute inviolability of a decision. -> In other words, whenever one says that a final decision is stable it means that as a rule, it cannot be modified or repealed and cannot be declared invalid. Validity of a decision: Valid are those decisions with regard to which no claim may be filed with an administrative court, due to the inadmissibility of the claim in the court proceedings, failure to use all available appellate measures, or the elapse of time limit to submit the claim, as well as those final decisions with regard to which a claim has been filed with the court, but the court rejected or dismissed the claim or discontinued the proceedings. In other words, those decisions may be referred to as valid, which have been upheld by the administrative court or which have not been challenged within the statutory time frame. Any valid decision is, at the same time, final (and enforceable). The concept of validity embraces the concept of finality, and the concept of finality embraces the concept of enforceability of the administrative decision. ORDERS: administrative order: Enforceable order issued by a public authority (under the powers conferred to it by one or more statutes) to an individual or an organization to take certain corrective action, or to refrain from an activity. 1. Orders are issued in the course of the proceedings before the ruling concerning the merits of the matter has been issued. 2. Orders are issued by the authority conducting the proceedings.

3. Orders mostly concern procedural and regulation issues. In exceptional cases the orders may concern the merits of the case. e.g the order concerning the explanation of doubts regarding the contents of the decision. 4. As rule, the orders- as rulings not concerning the merits of the matter- do not conclude the proceedings in a given instance. Exceptionally, they may close the proceedings in a given instance, as in the case of an order on inadmissibility of an appeal. An order shall include, apart from the ruling, the following components: 1. identification of the public administration authority; 2. date of issuance 3. identification of a party or parties, 4. specification of a legal basis, 5. legal and factual substantiation (if a complaint or a claim to the administrative court may be filed with regard to the order, or if the order has been issued as a result of a complaint), 6. instruction on a complaint ( or a claim to the administrative court), 7. a signature with identification of name and surname and official position of the person authorized to issue the order. ONLY THOSE ORDER SHOULD BE MADE IN WRITING WITH REGARD TO WHICH A PARTY MAY FILE A COMPLAINT OR A CLAIM TO THE ADMINISTRATIVE COURT. IN ALL OTHER CASES ORDER MAY BE ANNOUNCED VERBALLY. When order can be issue? In the course of the proceeding Who is allowed to issue and order? Public administration body before which the proceeding conducted. What may it concern? The particular issues which arose in the course of the proceedings, but they do not conclude the matter as to the merits, unless the provisions of the CAP provide otherwise. Mode of the service Orders against which a party file a complaint or claim to the administrative court shall be delivered in writing to the parties or by means of an electronic documents. Orders may be announced to the parties orally. Legal and factual substantiation: Legal and factual substantiation are included in the order if a claim to the administrative court may be filed.

Decision vs. order: Comparison Decision -> decision concludes the matter as to the merits in whole or in part or otherwise close the proceedings in the given instance. If for any reason the proceedings became groundless the public administration authority shall issue a decision on the discontinuance of the proceedings. (Such decisions close the proceedings and conclude the matter as to the merits in whole.) Order -> order mostly concern procedural and regulation issues. In exceptional cases orders may concern the merits of the case.

Decision -> decision settles a certain case of a certain party, it always ends the proceedings in the first instance as well as in the second instance. Orders -> Order settles a certain procedural matter (e.g. orders issued during the evidence proceedings) and it is always issued during the proceedings before the first instance authority as well as before the second instance authority.

Decision -> is always addressed to a party of the proceedings. Order -> Order may be addressed to a party of the proceedings as well as to any other participant of the proceedings.

Decision -> The decision shall be delivered to the parties in writing. There are no other regulations. Order -> Only those orders should be made in writing with regard to which a party may file a complaint or a claim to the administrative court. In all other cases orders may be announced verbally.

Decision -> 1.

identification of the authority,

2. date of issuance, 3. identification of a party or parties, 4. specification of legal basis, 5. legal and factual substantiation,

6.

instruction of any appellate measures (action, claim),

7. a signature with identification of name and surname and official position of the person authorized to issue the decision. Order -> 1.

identification of the public administration authority,

2. date of issuance, 3. identification of a party or parties, 4. specification of legal basis, 5. legal and factual substantiation (if a complaint or a claim to the administrative court may be filed with regard to the order, or if the order has been issued as a result of a complaint), 6. instruction on a complaint (or a claim to the administrative court), 7. a signature with identification of name and surname and official position of the person authorized to issue the order. Decision -> Every decision must include reasons (legal and factual) that are the motives of issuing this certain decision. Order -> The rule is that orders do not include reasons. Only those orders against which it is possible to issue a complaint must include reasons of their issuance. Decision -> The rule is (it derives from the principle of two instances) that against every decision issued by the first instance authority it is possible to lodge an appeal. Order -> The rule is that there is no possibility to lodge a complaint against the order ( in this case the principle of two instances is not in force ). You can do that only if the provisions of the Code provide such possibility. Settlement ( An Administrative Agreement): The settlement is an agreement made in writing between parties to the administrative proceedings who are in dispute (have opposing interests). The role of an administrative body carrying out the matter is, in the case of a dispute, reduced to controlling wheter the parties have determined their mutual rights and obligations in a lawful and correct manner.

Principle of Amicable resolution of Matters If parties of opposing interests participate in the matter, the matter may be disposed of by way of a settlement drawn up before a public administration authority (administrative settlement). Public administration authorities before which the proceedings in the matter have been pending, should in such cases undertake actions to persuade the parties to settle the matter. 1. A settlement is a substitute to an administrative decision in the matter. 2. The fact that the parties reached a settlemetn is recorded in a protocol. 3. The settlement shall be approved - by means of an order - within seven of the day it has been made. 4. Above mentioned approval is necessary for validity of the settlement. 5. The approval or the refusal to approve a settlement has the form of an order. 6. Disposal of administrative matters by way of settlement is very rare and, in practice, it is of marginal importance. Admissibility of a Settlement: In a matter pending before a public administration authority, parties may reach a settlement, if the nature of the matter allows therefore, if it contributes to the acceleration or facilitation of the proceedings and if it does not violate any provision of the law (art. 114 of the Code). The settlement may be concluded before the public administration authority before which the proceedings in the first instance or appellate proceedings have been pending, until the authority issues a decision in the matter. 2. The matter concerns at least two parties. It is not possible to enter into agreement in a matter where a decision will concern only one party. 3. The character of a matter requires an agreement, which means that the parties have different (oposite) interests. 4. The settlement will contribute to the simplification or acceleration of proceedings: Parties cannot impede the settlement of a matter by means of administrative decision by making a proposal to agree in an unspecified time limit or in a distant future. It is unacceptable to enter into agreement in case where it can be judged from the circumstances of the matter that a possible agreement would delay or complicate administrative proceedings. 5. Settlement cannot be a violation of any provisions of the law. Some acts of substantive law provide that in spite of the contentious character of a matter it is not possible to enter into administrative agreement.

Such a prohibition is set out by the Act on Trade in Real Estate which provides that entering into agreement is prohibited in matters on expropriation, which is depriving a citizens by the State of ownership of private property for public use (such as the construction of a higway for instance). 1. The settlement shall be drawn up in writing. 2. The public administration authority shall record the fact that the settlement has been made in the case files in the form of a protocol signed by a person authorized to draw up the settlement. 3. These obligation of public administrative body arise from the principle of written form in proceedings: the principle of written proceedings: this principle is applied throug regulations on minutes and notes. According to these regulations on minutes and notes. Accordin to these regulations the basic form of recording action undertaken during the proceedings are minutes (minutes are taken of each action performer during the proceedings which has a relevant meaning for the settlement of a matter. The Code lists example of action, whose minutes must be taken. Such action include (but are not limited to) hearing of witnesses, experts or parties, court hearing, oral announcements, carrying out inspections or deliverin experts opinions). Elements of the Settle...