EU principles as a guide for modelling timely administrative procedures in Slovenia and Croatia (original) (raw)
Related papers
2014
The purpose of administrative procedure is to resolve conflicts between public and private interests, in particular when pursuing parties’ rights of positive status. Contrary to civil matters, parties need to firstly enforce their rights before the administrative authority of first instance; furthermore they can file an appeal to the second instance. Exhaustion of the appeal is in most legal systems procedural prerequisite to file court action, meaning there will elapse some time before receiving final and enforceable act to exercise rights. Parties have in administrative matters a right to access to the court and fair trial in reasonable time-limits as defined in constitutions, envisaging judicial procedure, in majority of states before specialised Administrative Court in accordance with Articles 6 and 13 of the European Convention on Human Rights (ECHR). Taking the comparative approach with supraand national normative and European Court of Human Rights case law analysis, paper pro...
In administrative matters, the parties usually have a right of access to the court and to a fair trial within a reasonable time limit, as defi ned by constitutions, only aft er the exhaustion of appeals. Judicial review is performed in a majority of states by a specialised administrative court in accordance with Articles 6 and 13 of the European Convention on Human Rights (ECHR). Based on a comparative research analysis of supranational and national normative law and European Court of Human Rights (ECtHR) case law, this paper provides insight into the extent to which administrative matters can be reviewed in administrative disputes as well as into the legal remedies available to the parties, especially when the authorities violate time limits, focusing on the compliance of the regulation in Slovenia and Croatia with the ECHR standards. Th e paper also illustrates a comparative perspective of regulation in other European countries, namely Austria and Estonia. Our fi ndings show the importance of the awareness of the necessary interplay between acts on administrative procedure and acts on administrative disputes for an eff ective realisation of the parties' rights and the public interest, with administrative justice ensuring a safety net by guaranteeing an eff ective legal remedy.
ReNEUAL Model Rules on EU Administrative Procedure
2017
The ReNEUAL Model Rules follow an approach of 'innovative codification'. This involves a new law bringing together in one document existing principles, which are scattered across different laws and regulations and in the case-law of courts. If necessary, the innovative codification also modifies these existing principles and rules and it may add new ones as well. (11) Constitutional principles constitute decisive normative standards for the design of administrative procedures in the EU. The existence or non-existence of administrative procedural rules in the EU is not merely a 'technical' question, free of constitutional value choices. The realisation of constitutional principles has a considerable potential impact on substantive outcomes. Administrative procedures for the implementation of EU law and policies entail administrative action in all its phases. Rules on administrative procedures need to be designed to equally maximise the twin objectives of public law: to ensure that the instruments in question foster the effective discharge of public duties and, at the same time, that the rights of individuals are protected. (12) Constitutional values and principles are the central normative standards for judging the design of procedures for implementation of EU law. Those values and principles include the protection of the rule of law and its emanations in subprinciples such as legality, legal certainty, proportionality of public action and the protection of legitimate expectations. Those values and principles further include the concepts of a democratic Union on the basis of a transparent system requiring not only the definition and protection of rights of participation and access to information but also, under Article 9 TEU, equality of citizens in their access to Union administration. Prominently, Articles 1(2) and 10(3) TEU require that, in the Union, in line with the principles of openness and of subsidiarity, "decisions shall be taken as openly and closely as possible to the citizen". (13) Other individual rights and obligations underpinning the design of procedures arise from the principle of good administration as partially restated in Article 41 CFR. Good administration requires that decisions be taken pursuant to procedures which guarantee fairness, impartiality and timeliness. Good administration includes the right to be given reasons-a requirement also 2 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1 last amended by Council Regulation (EC) No 487/2009 of 25 May 2009 on the application of Article 81(3) of the Treaty to certain categories of agreements and concerted practices in the air transport sector (Codified version) [2009] OJ L 148/1. 3
SSRN Electronic Journal, 2014
Well-designed rules of administrative procedure for implementation of EU law and policies will have beneficial effects both for effectiveness of implementation as well as for the realisation of general principles of EU law: A codification of EU administrative procedure law has the potential improve compliance with the rule of law and the principle of legality in the EU, to enhance legal certainty and further the principles of good administration, to simplify the diversity of procedures and make more transparent rights and obligations of individuals and administrations alike. This will not be without effect on increasing the legitimacy of exercise of public powers in the Union. In order to live up to this potential, EU administrative procedure law needs to overcome its fragmentation. So far, each sector-specific legislation, despite addressing common problems, differs with respect to the formulation of procedural provisions. One of the central challenges for regulating EU administrative procedures is finding solutions for the forms of intense procedural cooperation between national and European administrative actors through 'composite procedures' characterised by multi-jurisdictional input into decision-making. The multiplication of composite procedures across the policy fields of the EU, furthering de-central administration of a single legal space under the concept of subsidiarity, currently has the potential of diffusing responsibility and endangering the constitutionally guaranteed right to an effective remedy. The ReNEUAL draft model rules on administrative procedure have been developed and discussed together with lawyers from practice and academia and from all over Europe. They are designed to offer solutions of how to ensure modern, state of the art and tailor-made solutions to the challenges facing implementation of EU law and policies in today's realities of integrated administration.
LEGAL REMEDIES IN ADMINISTRATIVE PROCEDURES IN WESTERN BALKANS
This study was prepared in the autumn of 2015, with subsequent assessments of the newest developments in the Region until the beginning of April 2016. The expert team of the Institute of Public Administration from Zagreb, Croatia was commissioned to prepare the study. The team consisted of researchers who have substantial experience in supporting, monitoring, assessing, and researching administrative modernization efforts in the Region. They are university professors and lecturers, with experience as international experts for administrative modernization and administrative procedural law development, and scientific research of public administration reforms. The expert team collected an impressive amount of information, data, and legislation from six Western Balkan countries and three countries whose experience seems particularly important for the Western Balkans – Austria, Slovenia, and Croatia, all three now the EU member states. Taking into account that legal remedies are the heart of the system of protecting citizens’ rights in their relations with public administration bodies, the study presents and analyses the development of administrative procedural law framework, discusses widening the concept of protection of citizens’ rights, analyses legal remedies and ex officio interventions into administrative acts, and concludes with alternative dispute resolution mechanisms. Numerous recommendations have been developed from the analysis and presented in the study. The expert team hope that recommendations and lessons learned may significantly contribute to administrative improvements in the Region and beyond.
ReNEUAL model rules on EU administrative procedure: Book II - administrative rulemaking
2014
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2012
Public administration reform is a precondition for the integration of Bosnia and Herzegovina (BH) into the European Union. The paper describes the administrative framework at four separate levels in six horizontal areas (policy-making and coordination, public finances, human resources management, administrative procedure, institutional communication, and information technologies). It presents the state of affairs, pointing at the need for a comprehensive PAR with an emphasis on the modernisation of administrative procedure. Administrative procedural laws are not fully in line with common European standards. A considerable number of special administrative procedures leads to a lack of transparency and creates needless legal
Croatian Yearbook of European Law and Policy
This paper explores factors that either motivate or constrain national judges' participation in the preliminary ruling procedure. By incorporating insights and evidence from American judicial politics literature and drawing from three models of judicial decision making: the attitudinal model, the team model, and the resource management model, it places the study of judicial behaviour with respect to the preliminary ruling procedure on more rigorous theoretical grounds. The paper is based on survey results conducted among 415 national judges from two new EU Member States: Slovenia and Croatia. In line with the theoretical predictions, the results show that the decision to make a referral to the CJEU is determined by several individual-and court-level factors. These are the position that a court occupies in a national judicial hierarchy, the judicial workload and availability of resources, and judges' knowledge and experiences with respect to EU law and Article 267 TFEU proceedings.