Administrative Action and Procedures in Comparative Law [1 ed.] 9789462748477, 9789462368422

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C O M P A R A T I V E

Administrative Action and Procedures in Comparative Law Vincenzo De Falco

P U B L I C L A W T R E A T I S E

Founded by Giuseppe Franco Ferrari

The volume concerns the evolution of the main elements of administrative procedures, provides a diachronic reconstruction and bridges a gap in comparative studies that had observed the phenomenon through the prevailing analysis of foreign law. The author analyses the characteristics of the main juridical experiences and identifies the role played by subjective legal positions, the principle of transparency, the participation, the judicial control and the defects of administrative acts in the formation of the rules on procedures. The analysis is carried out through preliminary methodological clarifications and continues with the verification of the strength with which the principles have established themselves in the national, European and international legal systems. In this way it has been possible to discover models of transparency and participation and identify the functions that the duty to give reasons have in the various jurisdictions. The author reconstructs the systems with which the problems of administrative inertia are tackled and resolved and the limits that the individual juridical experiences impose on the discretionary power, up to identify the models of the administrative action and their diffusion in comparative law. Vincenzo De Falco is a professor of Comparative Public Law at the Department of Law of the “Luigi Vanvitelli” University of Campania. He has published books and essays on the issues of Competition in European Countries, Cultural Heritage in Spain and France, Public Services in Comparative Law, Silence in France, Autonomous Communities in Spain, Forms of Government in the States of India. The Comparative Public Law Treatise is a comprehensive body of publications, addressing the most relevant topics within comparative public law. The Treatise aims to identify and present in an original fashion comparative knowledge in the area of public law, whilst also developing new interpretative guidelines. Each volume, written by reputable scholars, offers a specialised analysis, which will be of use to legal scholars, students and also general readers.

ISBN 978-94-6236-842-2

9 789462 368422

Administrative Action and Procedures in Comparative Law

Comparative Public Law Treatise Founded by Giuseppe Franco Ferrari

Administrative Action and Pro cedures in Comparative Law

Vi n c e n z o D e Fa l c o

Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 email: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: +1 800 944 6190 (toll-free) Fax: +1 503 280 8832 email: [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag. This volume has been published with the contribution of Fondazione Cariplo. This volume was reviewed through a double-blind peer review procedure.

ISBN 978-94-6236-842-2 ISBN 978-94-6274-847-7 (e-book) © 2018 Vincenzo De Falco | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Preface The Comparative Public Law Treatise results from a desire to publish one single study providing a full panorama of comparative public law. Its aim is in fact to offer the reader – including scholars and students as well as the general reader – an overview, a summary and an original presentation of comparative knowledge in the area of public law, including both an account and summary of the various schools of thought as well as also, where possible, the development of original lines of thinking. Considering the objective of the Treatise it has been decided that it will extend to more than 50 volumes, in order to ensure a detailed analysis of the issues of greatest interest from a comparative perspective. Whilst the project as a whole will be characterised by a cross-systemic approach, it will include particular monographic studies of the most significant legal systems around the world. In doing so, the aim is to give a voice to the two focuses of comparative study, first the science of comparison stricto sensu, and secondly the study of foreign legal systems. In any case, the unifying characteristic of the study is its broad approach. This is not so much, or in any case not only, due to the number of volumes but rather to the choice that, within a globalised world, comparative law must open itself up to the greatest possible number of legal systems. Starting from this premise the monographic studies will seek to analyse many of the legal systems that have traditionally remained on the margins of comparative law studies. Finally, the choice to use three languages (Italian, English and Spanish) offers a further demonstration of the broad approach of the Treatise. This is the first time that a study of comparative public law has been conveyed at the same time in three languages. The objective is not only to ensure the wide circulation of the study within the international academic community, but above all to promote and favour a more ample dialogue between different legal cultures. Milan 2018 Giuseppe Franco Ferrari

To my father, attentive and silent master, forever alive in my memories. To Daniele and Ivan, who have patiently waited for this work to end.

Prologue Notes The rules of administrative action are the effect of the way of interpreting the relationship between public power and society. This relationship, arisen in many States with the idea of the clear supremacy of administrative authority, has undergone a rapid and distinct evolution, over the course of a few years. In the majority of countries the exercise of administrative functions was progressively limited by a vast array of procedural rules that were considered as the main components for guaranteeing the evolution of fundamental rights. In the first comparative law studies the principle of legality was intended in a tight sense and represented the main element of defence of subjective rights in relation to the effects that would be determined by an administrative act. It is thus that the States organised systems of administrative justice rather than immediately dealing with the disciplining of public action. So the first procedural rules arise via the effect of courts’ decisions. Starting from the Austrian experience of 1926 the rules on administrative procedures imitated the procedural phases but with many variations and distinctions in the legal traditions. From the evolution of this approach one will comprehend the value that the procedural phases assume in the complex work of the composition of the general interest. The idea of an authority that studies the content of the final decision not only via the exercise of own power but by effect of the discretionary evaluations of citizens’ interests, appeared ever more important. The forms of participation was amplified and in many cases administrative action became consensual and agreed with citizens subjected to its effects. The administrative procedures assumed a typical content; they regulated the organisational moments of administrative action and made possible the consideration of private interests. The tight bond between the law and administrative act was progressively attenuated and new principles emerged. Soon began to appear the American idea that proceedings could function as a guarantee also for the interests of strong groups or trade associations, even in rulemaking. In an initial phase of comparative law studies this evolution appeared so deep-rooted within each tradition to induce the majority of juridical thinking to place in second order the needs of comparative reconstructions. Today the situation is different, both due to the effect of the conditionings from countries with different approaches and above all through the influences exercised by international and EU law. Administrative action is connected with right to know and participation. The intensity and the modalities with which they are guaranteed allow to verify the level of openness provided by each jurisdiction and the scope of the investigations carried out by public authorities. From the combination of these two elements one is able to understand to what extent a public body gathers the data in order to reach the final decision. The principle of

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Prologue Notes

legality retreats in the face of the idea of the rationality of administrative action. The elements of proportionality and legitimate expectation, due to the widespread imposition of the duty to give reasons, add criteria and evaluation tools that an authority cannot ignore in the moment in which it defines the general interest. The last years have been marked by a season of intense transformations of procedural rules. The year 2015 saw both the first coding of the disciplining on procedures in France as well as the reform of the normative in Spain that increased the open investigation model to the production of secondary legal sources. The period 2014-2016 witnessed the widespread of rules on administrative transparency and consequently the right to access was transformed. Since 2010 some Latin American countries have started an extraordinary process of reforms. However the role and the force conferred to the new principles in each juridical experience allows to understand to what extent administrative action has to respect the analysis of costs and benefits or with which intensity the expectations generated in citizens are capable of orientating the administrative action. These are all elements that create tensions between the different ideas of legality and the discretionary definition of public interest, in each tradition. The phenomenon is evolving. It often changes from country to country and inevitably influences the way of operating in each authority, the modalities with which the problems of delays are dealt with and the elements which favour it and slow it down. These are the main reasons that led to a study of the phenomenon first via a diachronic reconstruction of the elements that determined the internal characteristics, to then proceed to their synchronic comparison in the search for components that characterise today administrative action in comparative law. In concluding these brief notes I feel the need to thank various people with an intense emotional involvement. My thoughts immediately turn to prof. Giuseppe Franco Ferrari who chose me to tackle such a delicate and complex topic. Thus my heartfelt thanks go to and to various other people who also contributed and provided precious assistance above all in the research of the immense bibliographical material. A special thanks goes to Ms Laura Assunta Scialla for her great commitment and to Antonietta Luongo and Valentina Faggiani for their professionalism in the delicate work of the translation of this work respectively into English and Spanish. I dedicate this work to my father who passed away in February 2017 and to my children, Ivan and Daniele, for the pleasure and the determination that their curiosity in watching me for years constantly dedicated to this work, instilled in me. But I wish to extend this thought to my wife Alessandra and to all dear friends who shared and tolerated with affection the anxieties and preoccupations that inevitably accompany works of such a scope.

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Prologue Notes

In releasing these pages to print my thoughts fleeting return to November of the year 2006 when in the Bibliothéque de la Faculté de droit in Nantes, I learnt with immense sadness of the premature passing of prof. Salvatore Cattaneo, my first professor to whom I owe my university career and the possibility today to give my contribution to a work of such high scientific profile. Naples, 1st September 2017

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Table of Contents 1 Methodological Profiles 1.1 Legal Traditions and Methodological Problems 1.1.1 The Distinctions in Common Law 1.1.2 Administrative Action in the Civil Law Tradition 1.2 The Activity – Procedure Symbiosis 1.2.1 The Legal Sources of Proceedings 1.2.2 Legal Families and Method Clarifications 1.3 Administrative Functions and the Crisis of Classical Methodology 1.3.1 The Force of Legality and the Rule of Law 1.4 The Influence of Community Principles 1.5 International Convergence Factors 1.6 The Search for Procedural Models

1 1 4 6 9 11 13 15 16 19 21 22

2 The Power of Principles 2.1 Basic Elements of the Comparative Analysis 2.2 The Origins in the Austrian Experience 2.2.1 The First Procedural Rules 2.3 The Principles of Administrative Action in France 2.3.1 The Development of the erreur manifeste d’apprèciation 2.3.2 Limits to Executive Power and Codification 2.4 Rule of Law and the Anglo-Saxon Experience 2.4.1 Controlling Administrative Power in English Juridical Thinking 2.4.2 Natural Justice and Fairness 2.5 Rights and Privileges in the United States 2.5.1 The Genesis of Rights in Rulemaking 2.5.2 Administrative Procedure Act and Due Process of Law 2.6 Administrative Power and Procedural Rules in Germany 2.6.1 The Crisis of Authority and the Centrality of an Administrative Act 2.6.2 Proceedings and Legitimatisation of Power 2.7 The Composite System in Italy 2.7.1 The Theoretical Setting 2.7.2 Evolution of Principles 2.8 The Spanish Experience

25 25 26 27 29 30 32 33

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34 36 38 39 42 44 45 47 49 52 54 57

Table of Contents

2.8.1 The Positivistic Approach 2.8.2 Rights in Proceedings 2.9 The Diffusion of the Spanish System in Latin America 2.9.1 The Evolutionary Context in Argentina 2.9.2 The Strong Inquisitorial Characterisation 2.9.3 The Spreading of the Principles 2.9.4 The Influence of Common Law in Colombia 2.9.4.1 Case Law and Procedural Principles 2.9.4.2 The Binding Force of the Unification Rulings by the Consejo de Estado 2.10 The New Tendencies of Central-Eastern Europe 2.10.1 The Extended Coding 2.10.2 The Espansion of the Austrian Approach

58 60 62 65 66 67 70 71

3 Access and Transparency 3.1 Secrecy and Disclosure in Administrative Action. The Models 3.1.1 The Transition Towards Transparency 3.1.2 The Hidden Differences 3.2 The Open Government Model 3.2.1 The Nordic System and the Internal Acts 3.2.2 Transparency the United States 3.2.3 Evolution and Divergences with the Swedish System 3.2.4 Procedural Aspects 3.2.5 Balancing Test and Elements in Regression 3.3 The Reserved Access Model 3.3.1 Forms in Expansion: A Comparison between the Germany and United Kingdom Experiences 3.3.2 The Innovative Tendency in Spain 3.3.3 Right of Access and Transparency: The Italian Case 3.3.4 Latin America and Central Europe Experiences 3.4 Assonance and Applicative Problems: The Relationship with the Discretionary Power 3.5 Spreading of Models and Synchronic Perspectives

85 85 87 89 90 92 94 97 98 101 103

4 Participation and Right to Defence 4.1 Investigation within Administrative Action 4.2 The French Experience 4.2.1 Rights and Interests in Proceedings 4.2.2 Débat public and enquêtes publiques

123 123 124 126 128

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73 76 79 80

106 108 111 114 116 119

Table of Contents

4.3 Hearing in United Kingdom 4.3.1 The Flexibility of Natural Justice 4.3.2 The Expansion of Participation Rights 4.3.3 Freedom of Procedural Forms 4.4 Right to Defence and Formal Adjudication in the United States 4.4.1 Informal Procedure and Balancing Test 4.4.2 Rulemaking and Participation 4.5 The Regulatory Framework in Germany 4.6 The Spreading of the Right to Defence in Proceedings 4.6.1 Procedural Guarantees in Comparative Law 4.6.2 Investigation and Discretionary Power 4.7 The Models

129 130 132 134 135 137 139 140 142 145 147 149

5 The Duty to Give Reasons 5.1 The Apparent Convergences 5.2 The Link between Participation and Duty to Give Reasons in France 5.2.1 Features and Soft Formalism 5.3 The German Juridical Thinking 5.4 The Evolution of Substantial Elements in Italy 5.5 The Spanish Approach and Its Influence in Latin America 5.6 Fairness and Duty to Give Reasons in the English System 5.7 The Characteristics in the United States 5.8 Discordances in Diachronic Analysis: Three Models in Transformation

151 151 152 154 155 157 161 163 164

6 Limits to Discretionary Power 6.1 Logic and Administrative Action 6.1.1 Wednesbury and Soft Unreasonableness 6.1.2 The Australian Variable 6.2 The Proportionality 6.2.1 Cogency and Proportional Action in Italy and France 6.2.2 The Different Implementation in the United Kingdom 6.2.3 The American Exception 6.2.3.1 Logic and Balancing Test in Adjudication Procedures 6.2.4 The Idea of Proportionality in Latin America 6.3 The Links between Reasonableness, Proportionality and Impartiality 6.3.1 Bias and Logic in the Anglo-American Experience

171 171 173 175 177 180 183 186

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189 190 192 193

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6.4 The Principle of Good Faith and the Strengthening of Legal Positions 6.4.1 Withdrawal of Acts and Legitimate Expectation in Germany 6.4.2 The Spreading in the European Context 6.4.3 Procedural Expectation. The Spanish Case 6.4.4 The Soft Reception in France 6.4.5 The Problematic Application in Italy 6.4.6 Estoppel and Legitimate Expectation in Great Britain 6.4.7 The Conservative Approach in the Anglo-American Experience 6.4.8 Self-Restraint in Australia 6.4.9 The Expansion in Spanish American Countries

195 197 198 200 202 204 207 209 212 214

7 Administrative Inertia and Procedural Delay 7.1 The Times of the Administrative Action 7.2 The Inertia as a Mere Fact 7.2.1 Characteristics of the English Experience 7.2.2 Administrative Delay in the United States 7.3 The Legal Effects of Silence. Rejection in the French Experience 7.4 Different Approaches in Spain and Italy 7.5 The Complexity of the Tacit Consent 7.6 Administrative Procedures for Tacit Acts in Latin America 7.7 Applicative Problems in Central-Eastern Europe and Evolutionary Tendencies

217 217 219 221 223 225 227 229 233

8 Administrative Action and Procedural Models 8.1 Classification Elements 8.2 The Narrow Investigation Model 8.2.1 Characteristics and Distinctive Traits in the Civil Law Tradition 8.2.2 The Flexible Intensity in Common Law 8.3 The Open Investigation Model 8.3.1 Distinctive Profiles 8.3.2 The American Experience between Crisis and Innovation 8.3.3 New Tendencies in Spain 8.3.4 Rulemaking and Participation in Latin America 8.3.5 Consensus and Administrative Action in Japan. The Evolutionism of Soft Law

241 241 242

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244 246 248 249 252 255 257 259

1 1.1

Methodological Profiles Legal Traditions and Methodological Problems

If in the studies on comparative law systematic analyses on administrative proceedings are still rare, this fact which is due to a vast array of factors seems principally connected to a temporary phase of the evolutionary process. It is only in the last few years that juridical thinking has set aside the idea that the various administrative laws are so deeprooted within each legal tradition that to make a comparison among them is almost impossible.1 The contribution of comparative studies to this special branch of public law began only around the middle of the last century but, after a few years, there was an intense literary production that analysed its origins and developments.2 However the methodology widely applied was influenced for the most part by the initial diffidence towards the expansion of the studies on comparative administrative law. The scientific contributions of those years tended in fact to analyse administrative laws observing them from within the individual legal traditions, utilising mainly the diachronic method that shed light on: a) the main historical and sociological backgrounds of public authorities, b) the birth and evolution of the elements on which relationships with citizens

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2

In the Premier Congrés International de droit compare held in Paris in 1900, an orientation contrary to any hypothesis to carry out correct comparisons between the institutes of administrative law prevailed. On the point, G. Recchia, ‘Introduzione’, in Idem (cur.) Ordinamenti europei di giustizia amministrativa, Cedam Padova 1996, XXVI. Cfr. P. Legrand, ‘European Legal Systems are not Converging’, Intern. Law Quart., Vol. 45, n. 1, 1996, 52-81. On the topic, the literature in various countries is extremely copious. Among which, F.J. Goodnow, Comparative Administrative Law: An Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany, Vol. 1-2, G.P Putnam’s Sons, New York - London 1897; J. Rivero, Cours de droit administratif comparé, Dalloz, Paris 1956-1957, 15; S. Flogaîtis, Administrative Law et Droit Administratif, L.G.D.J., Paris 1986, 1 et seq.; M.P. Chiti, ‘Diritto amministrativo comparato’, Dig. disc. pubbl., Vol. V, Utet, Torino 1990, 206 et seq.; M. D’Alberti, Diritto amministrativo comparato. Trasformazioni dei sistemi amministrativi in Francia, Gran Bretagna, Stati Uniti, Italia, Il Mulino, Bologna 1992; J. Ziller, Administrations comparées – Les Systémes politico-administratifs de l’Europe des Douze, Montchrestien, Paris 1993; G.A. Bermann, ‘Comparative Law in Administrative Law’, Mélanges en l’honneur de Guy Braibant, Dalloz, Paris 1996; O. Lepsius, Verwaltungrecht unter dem Common Law. Amerikanische Entwicklungen bis zum New Deal, Mohr Siebeck, Tübingen 1997; M. Reimann, ‘Beyond National Systems: A Comparative Law for the International Age’, Tulane Law Rev., Vol. 75, 2000-2001, 1003-1117; S. Cassese, ‘Le trasformazioni del diritto amministrativo dal XIX al XXI secolo’, Riv. trim. dir. pubbl., n. 1, 2002, 27-40; S. de la Sierra, Una metodologia para el Derecho comparado europeo, Derecho Publico Comparado y Derecho Administrativo Europeo, Madrid, Civitas 2004. Recently P. Cane, Controlling Administrative Power: An Historical Comparison, Cambridge University Press, Cambridge 2016, in which the author retraces the birth of the Administrative State in England, the United States and Australia and frames the different systems of control of administrative action in a wider constitutional frame.

1

Administrative Action and Procedures in Comparative Law

are founded, c) the techniques of the organisation of power, d) the theoretical profiles on which they were conceived and e) the organisation of legal systems.3 The divide between the common law and civil law families immediately provided an excellent theoretical foundation for distinguishing those countries that had developed a special law from those in which private law appeared suitable and sufficiently evolved to be able to regulate relationships between administrators and society.4 France and England thus were considered as contrasting models.5 In the French experience diachronic analyses highlight the historical, social and cultural conditions in which the idea of a special administrative law affirmed itself in relation to the principles of private law and from which a special judge with special powers subsequently derived. Many authors see in this choice dating from the birth of the first Empire the need to bestow upon the bureaucratic apparatus a power to undertake imperative acts, at the time when France was re-organising itself and contemporarily had to tackle the attacks that stemmed from the rest of Europe.6 Others justify the idea of puissance publique as a main element of administrative action that is based on the duty of public powers to supply public services.7 France organised its bureaucracy with a hierarchical structure and a strong centralised apparatus and conferred upon public authorities a clear supremacy

3

4

5

6

7

R. Caranta, ‘Procedimento amministrativo in diritto comparato’, Dig. disc. pubbl., XI, Utet, Torino 1996, 604-617; M. Fromont, Droit administratif des États européens, PUF, Paris 2006; R.J.G.H. Seeden (cur.), Administrative Law of the European Union, Its Members States and the United States. A Comparative Analysis, Intersentia, Groningen 2012; J.-B. Auby, ‘Le droit administratif en Europe, 20 ans après. Rapport introductif’, ERPL, n. 1, 2010, 19-64; Idem, ‘Le droit administratif français vu du droit comparé’, AJDA, 2013, 407 et seq. In reality, recently works also tend to exalt the diachronic aspect in comparative analyses. J. Barnes, ‘El procediminento administrativo. Análisis histórico y comparado’, in J. Rodrígez – Arana et al. (Eds.), Curso de derecho Administrtivo iberoamericano, INAP, Granada 2015, 203-293; V. Kapsali, Les droits des administrés dans la procédure administrative non contentieuse – étude comparée des droits français et grec, L.G.D.J., Paris 2015, 634. Cfr. J.-B. Auby & T. Perroud, Droit comparé de la procédure administrative/Comparative Law of Administrative Procedure, Bruylant, Bruxelles 2016, where however one can see also a comparison of the procedures, that however are analysed in each legal experience. A different approach instead can be seen in G. Napolitano (cur.), Diritto amministrativo comparato, Giuffrè, Milano 2007, and in E. Palici di Suni Prat, I diritti al procedimento. Profili di diritto comparato, Giappichelli, Torino 1994 where the reconstruction occurs above all from the synchronic viewpoint. A distinction however is emphasised by the main exponents of the relative cultures. On the topic, R. Pound, The Spirit of the Common Law, Marshall Jones Company, Boston 1921; G.F. Ferrari, ‘Civil law e common law: aspetti pubblicistici’, in P. Carozza et al. (cur.), Diritto costituzionale comparato, Laterza, Roma-Bari 2009, 652. J. Rivero, ‘Prèface’, in Flogaîtis, 1986, 15-19; S. Cassese, ‘La costruzione del diritto amministrativo: Francia e Regno Unito’, in Idem (cur.), Trattato di diritto amministrativo, Giuffrè, Milano 2003, 5. Cfr. anche M. Rheinstein, ‘Common Law – Equity’, Enc. Dir., Giuffrè, Milano 1960, 914 et seq. e L. Moccia, ‘Equity’, Dig. Disc. Priv., Vol. II, Utet, Torino 1991, 498 et seq. S. Charbonneau, ‘Mutations des structures ministérielles et theories modernes des organisations bureautratiques’, Esprit, January 1970, 121 et seq. On the topic of historical reconstruction see P. Legendre, Histoire de l’administration de 1750 à nos jours, PUF, Paris 1968 e F. Burdeau, Histoire du droit administrative (de la Rèvolution au debut des années 1970), PUF, Paris 1995. L. Duguit, Traité de droit constitutionnel, t. II, Fontemoing, Paris 1928, 59 et seq.

2

1

Methodological Profiles

in relation to citizens’ rights and interests utilising rules and institutes that ignored private law.8 At the same time administrative action was viewed as a sphere set aside for the bureaucratic apparatus and its special nature also had effects on the limited powers to the ordinary courts, which was prevented from interfering in this special function.9 The only limit envisaged as a control parameter was the principle of legality which had by then affirmed itself in the aftermath of the liberal revolution.10 Administrative action became the guardianship of general interests within the limits of the clear indications given by law. The law created the administrative structure, specified its functions and established which measures were to be adopted. In the French system the need for parliamentary control brought about a departure from the private law model and inspired the idea of the uniqueness of administrative acts, similar to that which occurred for the rights related to private property. From this approach derives the principle of the nominativeness of the acts. An administrative act became the main subject of regulation by virtue of its capacity to have a bearing on rights. The laws disciplined the elements of the act and the initial forms of procedural rules. In the British experience the growth of its administrative bodies was a direct consequence of the new and different functions that little by little the Welfare State was beginning to take on.11 It took place in a context in which the relationship between citizens and public bodies was framed in a different manner, marked by a respect for natural justice that did not allow any special legal distinction between the action of a public body and that of citizens.12 The idea of a constitutional state that had evolved in the United Kingdom survived the expansion of public functions. The rules of administrative action were never viewed as being a departure from the principles of common law that had for centuries been affirmed in the English legal tradition.13 Parliament, understood to be sovereign, could create any public body and confer any power on it. Yet Parliament never derogated in general terms from the common law. Neither a derogatory law nor a special administrative judiciary were instituted. Administrative bodies were given statutory powers to undertake actions that would otherwise have been unlawful; but they were not given openended power to detract from common law rights nor was a potent centralised and hierarchical bureaucratic apparatus ever created or privileges generally attributed to public

8 9 10 11 12 13

J. Chievallier, ‘Le droit administratif, droit de privilége’, Pouvoirs, n. 46, 1998, 57 et seq.; Ferrari, 2009, 664. D’Alberti, 1992, 28 et seq. C. Eisemann, ‘Le droit administratif et le principe de legalité’, Etudes du Conseil d’État, Paris 1957, 25. G.F.Ferrari, ‘La sicurezza sociale in Gran Bretagna’, in G. Rossi & P. Donati (cur.), Welfare State. Problemi e alternative, Franco Angeli, Milano 1985, 137-218. H.W.R. Wade, Administrative Law, Clarendon Press, Oxford 1982, 22 et seq.; Flogaîtis, 1986, 59-83; Cassese, 2003, 8. A. Dicey, An Introduction to the Study of the Law of the Constitution, Macmillan Press Ltd, London 1959, 199.

3

Administrative Action and Procedures in Comparative Law officials.14 The rules of administrative action were established with a tendency that principally was orientated towards safeguarding subjective legal positions (the set of rights and interests protected by laws) rather than the organisation and functioning of public bodies. English juridical thinking, starting from Dicey’s well-known repudiation, was strongly critical towards the evolution that was characterising French administrative law,15 even if in reality different theoretical approaches were not lacking.16 In England private law allowed citizens to bring actions in tort against public officials for compensation17 and the relationship citizens-public authorities was similar to that among individuals, rather than between an authoritative power and a person who was subjected to its action. The scission administrative action-public functions, so evident in the French experience, did not exist. Parliament could in theory have enacted arrangements similar to those that in France prevented administrative officials from being subjected to liability in tort without the authorisation of the Conseil d’État. But the English jurist of the nineteenth century would have viewed such arrangements as repugnant to the rule of law.

1.1.1

The Distinctions in Common Law

The United States did not equip itself with an unified state administrative organisation.18 Facing the amplification of public functions in the various social and economic areas, America had opted for multiplying agencies and amplifying their functions which included activities that traditionally in other countries were understood as being part of rulemaking.19 14

15

16 17

18

19

H. Parris, Una burocrazia costituzionale: l’evoluzione dell’amministrazione centrale inglese dal Settecento a oggi (1969), Giuffrè, Milano 1979; D’Alberti, 1992, 28 et seq.; P. Harling, ‘The Politics of Administrative Change in Britain, 1780-1850’, J. eur.Verw., n. 8, 1996, 191-212; P. Craig, Administrative Law, Sweet & Maxwell, London 2012, 37 et seq. Dicey, 1959, 528. Cfr. sul tema P. Craig, ‘Dicey: Unitary, Self-correcting Democracy and Public Law’, LQR, n. 106, 1990, 105 et seq.; S. Cassese, ‘Albert Venn Dicey e il diritto amministrativo’, Quaderni fiorentini per la storia del pensiero giuridico moderno, n. 19, 1990, 5 et seq.; L. Mannori & B. Sordi, Storia del diritto ammnistrativo, Laterza, Roma-Bari 2004, 428. W. Ivor Jennings, The Law and the Constitution, University London Press, London 1933, 306 et seq. For a classic example see (Cooper v. Board of Works (1863) 14 CB (NS) 180). Parliament gave a municipal agency power to destroy buildings where the builder had not complied with notice requirements; the court held that the common law made it unlawful to exercise that power without giving the builder an opportunity to make representations, even though the statute made no such requirement. V. Guggenheimer, ‘The Development of the Executive Department’, Essay in the Constitutional History of the United States in the formative Period, ed. Jameson, Boston 1970, 116; J.L. Mashaw, ‘Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era’, Yale L.J., Vol. 116, n. 8, 2007, 18011829; D.R. Ernst, Tocqueville’s Nightmare. The Administrative State Emerges in America, 1900-1940, Oxford University Press, New York 2014. F. Cammeo, ‘Il diritto amministrativo degli Stati Uniti d’America’, Giur.it., n. 4, 1895, 81-102; M. Comba, ‘Riflessioni sul diritto al giusto procedimento negli Stati Uniti’, Riv. trim. dir. pubbl., 1976, 447; G. Arena, ‘La partecipazione dei privati al procedimento amministrativo: analisi dell’esperienza americana’, Riv. trim. dir. pubbl., 1976, 279-293; G. Bognetti, ‘Dalla “rule of law” allo “Stato amministrativo”: il problema della giustizia nell’amministrazione in America’, in N. Greco (cur.), Lo Stato amministrativo. Modelli ed esperienze

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1

Methodological Profiles

Hence administrative agencies were continually interfering with citizens’ rights and interests which in the past were left to the free market. Some functions favoured wide areas in society, with social and economic measures, while others had a negative bearing, above all to the detriment of free competition and market going against the tendency that had characterised the American experience in the past. Due to the fact that there was no unified bureaucratic structure, sharing of competencies, assignment of functions and responsibilities and an extremely weak judicial control, the first need perceived by the American juridical thinking was to allow the widest possible procedural participation.20 The United States approved a general law in 1946, the Administrative Procedure Act, constituting rulemaking as an expression of a direct democracy cut off from the electorate – legislature – government circuit. The new rules established a procedure that guaranteed the widest democratic participation in rulemaking while the rule of law regulated the spaces left free by the Administrative Procedure Act.21 Analysing the American experience therefore one can note an additional divergent factor related to the notion of administrative action. In fact the rulemaking activity which in English law is closer to the almost legislative function, assumes a procedural connotation. The administrative action of the issuance of individual measures is defined adjudication and disciplined at the same time by the Administrative Procedure Act. In this case however the new provisions mostly transposed the principles that had been elaborated by the Supreme Court. These elements developed in the US experience mainly through the extensive interpretation of the constitutional precept of the due process of law that had been created for trials and not for administrative procedures. This is why the formal adjudication procedure is based along the lines of the phases of a trial. In accordance with the principle of the due process of law, therefore the attention of American legal thought focused on the detailed articulation of the administrative procedure, because it is primarily through the procedure, as in a trial, that citizens could find forms of protection against public action. This setting is not recorded in the British experience. England had a bureaucratic structure and it did not feel the need to multiply independent agencies. The procedural principles developed thanks to the constant work of English courts with the idea that protecting citizens’ rights was of paramount importance. Executive power was not neutral in respect to the public interest, nor was English juridical thinking particularly influenced by the constitutional principle of the due process of law, as occurred in the United States.

20 21

U.S.A., Edistudio, Roma 1976, 1 et seq. Recently G. Smorto, ‘La comparazione giuridica negli Stati Uniti d’America. Spunti per una riflessione’, in L. Antoniolli et al. (Eds.), Le nuove frontiere della comparazione, Università degli Studi di Trento, Trento 2012, 334-357. R.B. Stewart, ‘The Reformation of American Administrative Law’, Harward Law Rev., Vol. 88, n. 8, 1975, 1699-1813. Sez. 553 Administrative Procedure Act del 1946.

5

Administrative Action and Procedures in Comparative Law

In the British experience the idea that the safeguarding of citizens’ rights should be concentrated mainly on the procedural phases did not affirm itself. The United Kingdom has never had a legislative Act on administrative procedure. The fundamental approach focused first and foremost on the protection of the rights involved in administrative action rather than on the detailed disciplining of the procedural phases, which were thus modulated depending on the impact of administrative action on rights and interests.

1.1.2

Administrative Action in the Civil Law Tradition

Within the civil law family one can find different models even in the way of interpreting the concept of administrative action. Initially administrative action was identified in the realisation of objectives, interests and values stemming from political orientations.22 In France, as in Italy the dividing line between political action and administrative action was sought in the subordinated nature of the functions that administrative authorities carry out in order to accomplish the objectives established by centralised or decentralised political authorities. Administrative action, starting from the organisation itself,23 was viewed within the traditional distinction between politics and administration as a function subject to orientation and coordination. A political act, its formative process, and the legal protection mechanisms against it were regulated by constitutional law which entrusted to administrative law the tasks of arranging the application rules. Political activity instead was viewed as being free in its purposes and distinct from administrative action that found in the law its organisation and its limits. Administrative authorities were envisaged in a hierarchical key. In comparison to the political function administrative activity regarded the guardianship of concrete interests that was entrusted to agencies in an organisational model that always depended on a political assembly. It was regulated by that branch of public law that represented a special corpus of unitary and homogeneous rules which organised the structures of public administration and the instruments for the exercise of its functions.24

22

23 24

E. Guicciardi, ‘L’atto politico’, Arch. dir. pubbl., 1937, 265 et seq.; T. Martines, ‘Indirizzo politico’, Enc. Dir., Vol. XXI, Giuffrè, Milano 1971, 134 et seq. In Germany, G. Jellinek, Allgemeine Staatslehre, Dunker & Humblot, Berlin 1905; in France, P. Duez, Les actes de gouvernement, Sirey Dalloz, Paris 1935; in Spain, J.L. Carro & F. Valmayor, ‘La doctrina del acto políticos’, RAP, n. 53, 1957, 73-130; A. Guaita Martorell, ‘Actos políticos y Justicia administrativa’, Estudios en homenaje al Profesor Legaz Lacambra, n. 2, 1960, 913. A.M. Sandulli, ‘Governo e amministrazione’, Riv. trim. dir. pubbl., 1966, 758 et seq.; M. Nigro, Studi sulla funzione organizzatrice della p.a., Giuffrè, Milano 1966, 135 et seq. A.M. Sandulli, Manuale di diritto amministrativo, part II, Jovene, Napoli 1989, 23 et seq.; G. Napolitano, ‘I grandi sistemi del diritto amministrativo’, in Idem (cur.), 2007, 35.

6

1

Methodological Profiles

When studies analysed the classifications within the legal traditions, rather radical divergences emerged.25 The studies brought to light, in addition to the evident impossibility to provide a clear notion, the idea of administrative action as being strictly linked to the genesis of a bureaucratic apparatus and the degree of internal expansion of the principle of legality.26 In France this concept was coherent with the idea that administrative structures should be organised in a strictly hierarchical key. Additionally they should be ascribable to one unique reference centre consisting of the ministers subjected to parliamentary control.27 The task of ensuring subjection of administrative acts to the law was delegated to the principle of legality. Other distinctions derive from the centrality of an administrative act, as an expression of public power that oversees general interests, such as: the distinction between authoritative activity and the erogation of services, useful for the application ambits of administrative law and for a special judicial power.28 In the first half of the nineteenth century the distinction between authoritative acts and management acts began to be hypothesised by French juridical thinking. But the characteristic expression of puissance publique was acknowledged only for the first typology of acts. The notion of public service was counter-posed to that of public function above all with the aim of allowing greater openings to the citizens’ management.29 Management 25

26

27

28 29

G. Zanobini, ‘Amministrazione pubblica’, Enc. Dir., Vol. II, Giuffrè, Milano 1957, 233; M.S. Giannini, ‘Attività amministrativa’, Enc. Dir., Vol. III, Giuffrè, Milano 1958, 988. In France, G.J. Guglielmi, La notion d’administration publique dans la théorie juridique française de la révolution à l’arrêt Cadot (1789-1889), L.G.D.J., Paris 1991, 79; P. Mbongo, La séparation entre administration et politique en droits français et étrangers, Berger Levrault, Paris 2014, 288; C. Alonso, Recherche sur le principe de séparation en droit public français, PUAM, Aix-Marseille 2015, 886. In Germany, O. Mayer, Deutsches Verwaltungsrecht, Duncker und Humblot, Berlin 1961, 1 et seq.; E. Forsthoff, Lehrbuch des Verwltungerechts, C.H. Beck, München, Berlin 1961, 1 et seq. In Spain, J.A. Santmaría Pastor, La actividad de la Administración, in Comentario sistematico a la Ley de Regimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común, Carperi, Madrid 1993. F. Satta, Principio di legalità e pubblica amministrazione nello Stato democratico, Cedam, Padova 1966; S. Fois, ‘Legalità (principio di)’, Enc. Dir., Vol. XXIII, Giuffrè, Milano 1973, 658 et seq.; D. Dyzenhaus et al., ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation’, Oxford University Commonwealth Law Journal, n. 1, 2001, 5-34. In France, C. Eisenmann, ‘Le droit administratif et le principe de legalité’, EDCE, n. 11, 1957, 25 et seq. In Germany, D. Jesch, Gesetz und Verwaltung, Dietrich Jesch, Mohr Siebeck 1961. M. Hauriou, Étude sur le droit administrative français, Dupont, Paris 1897, 13 et seq.; J.-L. Mestre, Introduction historique au droit administratif francais, PUF, Paris 1985, 9 et seq.; J. Chevallier, ‘Le droit administratif, droit de privilège?’, Pouvoirs, n. 46, 1988, 57-70; Y. Thomas, Histoire de l’administration, La Decouverte, Paris 1995, 25; Burdeau, 1995, 41 et seq. C. Duval, ‘Les justifications de la raison d’être et du maintien de la juridiction administrative en France au 19e siècle’, J. eur.Verw., n. 8, 1996, 57; G. Dupuis et al., Droit administratif, Dalloz, Paris 2004, 643. C. Eisenmann, ‘Droit public, Droit privé. En marge d’un livre sur l’évolution du droit civil français du XIXe au XXesiécle’, Rev. dr. pubbl., n. 62, 1952, 903 etseq.; E. Prada – Bordenave, ‘Les organismes privés chargés d’une mission de service public sans prérogative de puissance publique: la compétence en matière de responsabilité (à propos du transport des déportés par la SNCF sous l’Occupation)’, Rev. fr. adm., n. 1, 2008,

7

Administrative Action and Procedures in Comparative Law

acts employed by public administrators for the erogation of public services were considered expressions of the powers of authorities that normally do not differentiate from the principles of private law. This distinction, that successively in France was to form the basis of the division between administrative services and services of an industrial and commercial nature, highlights a further difference. Administrative activity that oversaw public interests via the exercise of exorbitant powers beyond the confines of private law assumed an importance in itself and was to be distinguished from that with which public administrators supply economically importance services.30 The Italian legal system is instead marked by an intense theoretical production that has tried to divide, differentiate and classify the various aspects of public functions in order to provide a conceptual autonomy to the idea of administrative action. The multiplemeaning nature and the various and conflicting connotations have for years been authoritatively investigated by public law jurists, in an attempt to delineate its content and clarify its boundaries in order to find distinctions with other public functions.31 In Italy the theory would be utilised in the same way to divide authoritative activity from that of performance, guardianship and assistance. Only the activities that fell into the first category were subject to a special law. Sectorial rules for the selection and regulating of public personnel existed only for the public bodies that carried out this specific function. Furthermore administrative acts were envisaged only for this function with the power to have a bearing on subjective legal positions, transforming them into mere legitimate interests. These elucidations implicated the fundamental elements that justify the existence of dualist regimes and they determined various interpretative problems in relation to the power of a special judge. From an applicative point of view these problems were not easy to manage and resolve. In France studies on administrative action were rooted in this division, in the idea that all the instances that did not correspond to the exercise of public power should be separate and distinct.32 In Italy administrative action was analysed separately utilising the cases in which administrators deal with providing assistance, care, services or act via private laws instruments. Administrative action was subdivided into various sub-categories depending on whether: a) it was an expression of an authoritative power

30

31

32

80 et seq.; L. Janicot, ‘L’identification du service public géré par una personne privée’, Rev. fr. adm., n. 1, 2008, 67 et seq. Thomas, 1995, 25; A.S. Mescheriakoff, Droit des services publics, PUF, Paris 1996, 86; F. Melleray, ‘École de Bordeaux, école du service public et école duguiste. Proposition et distinction’, Rev. dr. pubbl., n. 117, 2001, 1887 et seq.; Dupuis et al., 2004, 511; G. Bigot, ‘Les faillites conceptuelles de la notion de service public en droit administratif’, Rev. fr. adm., n. 1, 2008, 1-6. The topic has been extensively analysed. In Italy, the main problems connected to the study of public functions are reconstructed by C. Mortati, Istituzioni di diritto pubblico, Cedam, Padova 1975, 295 et seq. A concise but complete re-elaboration can be found in M. Nigro, ‘L’azione dei pubblici poteri. Lineamenti generali’, in G. Amato & A. Barbera (cur.), Manuale di diritto pubblico, Il Mulino, Bologna 1986, 699 et seq. Legendre, 1968, 472 et seq.; Mannori & Sordi, 2004, 257 et seq.

8

1

Methodological Profiles

or not, b) it concerned to acts or simply behaviours, c) it expressed itself in a unilateral manner or with the co-participation of citizens and d) in relation to the form and the typology of the final acts, be they general, political or of high administration.33 Administrative activity was then differentiated from regulation and from the concept of public service. Declaratory activity, inspection, certification, organisation and control were thus distinguished.34 Approaches were different even within the civil law family. The French tradition which greatly inspired Italian administrative law did not acknowledge these detailed subdivisions of administrative action and founded instead the entire system on the distinction between industrial and commercial public services, on the one hand and administrative services on the other, in whose ambit were included activities such as the judicial function that in Italy were not attributable to the idea of a public service. In Spain the attention was focused on the administrative act and theoretical studies on public functions remained in the background.35

1.2

The Activity – Procedure Symbiosis

Towards the end of the last century the studies on comparative administrative law highlighted at that time the existence of a consistent divide between the legal families. In these years the first diachronic comparisons between the institutes that had developed in the various countries, began. However the attention was focused on administrative justice36 and public employment.37 Analyses on administrative action and procedural institutes 33 34 35

36

37

Cfr. Giannini, 1958, 988; Nigro, 1986, 699. On the topic E. Casetta, ‘Attività amministrativa’, Dig. Disc. Pubbl., Vol. I, Utet, Torino 1987, 521 that underlines the incomplete nature of the concept. M.S. Giannini, Istituzioni di diritto amministrativo, Giuffrè, Milano 1981, 253. Cfr. M. Ballbé Prunes, ‘Actos administrativos’, Nueva Enciclopedia Jurídica, Vol. II, Seix, Barcelona 1959, 294 et seq.; A. Guaita Martorell, ‘El concepto de acto administrativo’, REDA, n. 7, 1975, 529 et seq.; J.R. Dromi, El acto administrativo, Instituto de Estudios de Administración Local, Madrid 1985; J.A. García Rivas, Estudio jurisprudencial del acto administrativo, Ed. Comares, Granada 1989; more recently, E. García de Enterría & T.R. Fernández Rodríguez, Curso de Derecho administrativo I, Cívitas, Madrid 2015, 581 et seq. R.C.K. Ensor, Courts and Judges in France, Germany and England, Oxford University Press, Oxford 1933; G.F. Ferrari, ‘Giustizia amministrativa nel diritto comparato’, Dig. Disc. Pubbl., Vol. VII, Utet, Torino 1991, 614; A. Piras & G. Motzo (cur.), Administrative Law: the problem of justice. Anglo-American and Nordic system, Giuffrè, Milano 1991; J. Barnés Vasquez (cur.), La justicia administrativa en el derecho comparado, Civitas, Madrid 1993; Recchia, 1996, XI-LIV; M. Fromont, ‘La convergence des systémes de justice administratives en Europe’, Riv. trim. dir. pubbl., n. 1, 2001, 125 et seq.; P. Leyland, English Administrative Law: Justice and Remedies in the Contemporary State, Bononia University Press, Bologna 2009. Lately, M. Comba, ‘Modelli di giustizia amministrativa nei paesi europei: la necessità di una tutela differenziata’, Il nuovo diritto delle società, n. 22, 2015, 90 et seq. A. Auer et al., Civil Services in the Europe of Fifteen: Current Situation and Prospects, E.i.p.a., Maastricht 1996; H.A.G.M. Bekke et al. (cur.), Civil Service Systems in Comparative Perspective, Indiana University Press, Bloomington 1996.

9

Administrative Action and Procedures in Comparative Law

were rare and with the exception of isolated cases, it continued to be reconstructed within each legal system. Undoubtedly the difficulty in overcoming the close link between the legal traditions and the ways of interpreting the concept of administrative activity contributed to this tendency. With the passing of just a few years however the internal importance up to now attributed to the concept appears today rather toned down. Although in each civil law country it continues to correspond to various and different functions, administrative action manifests a common element that coincides roughly with the guardianship of public interests that is executed via a typical act, an administrative measure, the final expression of the exercise of puissance publique. In the common law experiences there is a similar evolution, despite the fact that a particular importance has never been given to administrative acts. An ulterior fact of extreme interest progressively affirmed itself in comparative law: it is the symbiosis between the concept of administrative action and the idea of procedure.38 Every exercise of administrative power requires the authority to follow a path, composed of petitions, successive inspections, sometimes of a technical nature, depositions of opinions, permissions, agreements, meetings with other administrators or specific bodies. The need to hear out associations that represent interests or proposals, observations of citizens and the acquisition of documents, is not infrequent. There is the need to carry out a wide range of acts and operations which change depending on the complexity of the analysis to be carried out and that are incorporated in an investigation path defined as administrative procedure. These phases of administrative action affirm themselves almost everywhere albeit via different systems and modalities. The idea that the procedure is the place where the function of preventive justice is carried out prevails in some jurisdictions. It is the phase where citizens, a company or a public body that could be damaged by an administrative action are able preventively to articulate their defence to obtain the satisfaction of their interest in an independent manner from a judicial action.39 Administrative procedure helps to reduce litigations in the tribunals and contextually gives the interested party the possibility to provide information that can orientate the authority towards a comparison of more detailed interests. The idea that the procedure could be viewed as a moment for the exercise of constitutional rights began to affirm itself also in the ambit of the executive function.

38

39

L. Torchia, ‘I modelli di procedimento amministrativo’, in Idem (cur.), Il procedimento amministrativo: profili comparati, Cedam, Padova 1993, 33; Caranta, 1996, 604-617; Kapsali, 2015, 634; Auby & Perroud, 2016, 11-14. V. Korah, ‘The Rights of the Defence in Administrative Proceedings under Community Law’, Current Legal Problems, 1980, 73 et seq.

10

1

Methodological Profiles

Through the procedure the evolution of democratic principles took root within administrative activity that from an unilateral tax-imposing power was transformed into a neutral evaluator and comparator of the various interests at stake. In the countries analysed administrative activity coincides with the function that is executed via administrative procedures. Many moments of administrative operate remain outside of this ambit that range from the concrete management of public services, to the emanation of mere administrative acts, starting from consensual activity or operate with private law instruments. The dividing line is not however simple, due to the fact that in many of these activities there is a moment, prior to the stipulation of a contract or the material provision of a service, in which the authority decides via the exercise of its discretionary power and orientates its action in one direction rather than another. In all these moments the nucleus of administrative activity coincides with the elements that characterise each individual proceedings and follow the principles that, in one way or another, and with different intensities and characteristics widely sustain administrative action in comparative law.

1.2.1

The Legal Sources of Proceedings

Where disciplined the procedure is described as a series of acts, verifications and operations, connected to each other, pre-established by law or another normative act, aimed at the adoption of a final decision. Studies for the most part identify the rules regarding the execution of administrative activity, in so much as it must guarantee the respect of fundamental rights also within the procedural phases. The procedure is the soul of the administrative action, it constitutes the notion around which the regulation rotate. Once the genetic function for the formation of the final act was highlighted, in a short space of time administrative procedure became the main element of administrative action. It shifted from a form for the production of an administrative act to a moment of the democratic formation of the content of public interest, in a perspective that changed the relationship between public administrators and citizens.40 The symbiosis between discretionary power and procedure is almost total. In all the main legal experiences and consequently in the ambit of the spread of the models, it is via the procedure that public interest is defined in the respect of the rules and the principles that involve administrative action. This idea entails that when administrative action must define public interest and there is the need to provide a substantial content to the exercise of the specific competence, there are pre-established rules to be respected that are regulated by Administrative Procedure Acts.

40

Recently Auby & Perroud, 2016, 9-15.

11

Administrative Action and Procedures in Comparative Law These elaborations in some countries was formed by courts’ decisions.41 In France in the absence of specific law provisions, it is the defect of the excess of power to have constituted the element on which the first rules on procedures were generated by the Conseil d’État.42 In Italy some rules were extrapolated also from pre-existing laws: the elements to follow in sanction and silence formation proceedings derive for example from the unique text on the public sector. The constitutional principles then provided a further reference basis.43 In some countries the absence of legislation slowed down the development of administrative law. This circumstance was not evident in the United Kingdom where judicial review had already established an organic set of rules to follow in the exercise of administrative functions. It was felt with less intensity in the French experience due to the fact that the Conseil d’État had elaborated a vast array of principles to regulate administrative action. In Germany the 1976 Law on administrative procedure followed for the most part courts’ decisions but it also included some important innovative elements. There were rules inspired by the principle of informality, others dedicated to procedures for the formation of plans, administrative contracts or in guarantee of the participation of citizens in administrative action. A similar situation was recorded in Spain where the 1992 Law regulated the various aspects of administrative action and procedures. In Germany the realisation of plans was disciplined separately. In Spain the sanction procedure found its own autonomy. Instead since its initial set-up the choice undertaken in Italy led to the formation of a mixed system of principles elaborated by case law and Parliament. Before the 241/90 Law the conceptual organisation of the various procedures was above all due to the juridical thinking. Concessionary, expropriative, authorising, declaratory, negotiating and second degree procedures were distinct and these distinctions coincided generally with the various sub-categories with which the concept of administrative activity had been subdivided. Law 241 left exposed numerous sectors that were not regulated. The 1990 Law did not contain any indication with regards to public law contracts and cases of simplification via informal

41 42

43

Cfr. W. Gasparri, ‘Violazione delle regole formali tra invalidità degli atti e responsabilità risarcitoria. Una comparazione’, Dir. pubbl. 2007, 724 et seq. J. Rivero, ‘Jurisprudence et doctrine dans l’élaboration du droit administrative’, in Conseil d’État, Etudes et documents, Paris, 1955, 27 et seq.; J. Roche, ‘Rèflexions sur le pouvoir normatif de la jurisprudence’, AJDA, 1962, 532 et seq.; Legendre, 1968, passim. The jurisprudential elaboration was particularly incisive in Austria, as a direct effect of the law that conferred to the Supreme Administrative Tribunal the power to annul administrative measures that constituted the result of a lack of respect for the phases of an administrative procedure. Cfr. G. Morbidelli, ‘Il Procedimento amministrativo’, in L. Mazzarolli et al. (cur.), Diritto amministrativo, Monduzzi, Bologna 1993, 1003. From the plenary meeting of the Italian Council of State n. 3 of 28 January 1961 the internal approach based on which administrative law is not constituted solely by law, but also and above all by principles that regulate the activity of the State also in the part ‘not written’, was strengthened. In Cons. Stato, n. 1, 1961, 8 et seq.

12

1

Methodological Profiles

procedures nor did it regulate the formation of mass proceedings, as occurred in the German experience. Italy distinguished itself not only from the German system but also from that of Yugoslavia, Poland, Czechoslovakia, Spain and the United States that instead had meticulously regulated the phases of administrative procedures.44 In France the lack of an organic regulation was for years compensated, without any particular problems by the Conseil d’État. The regulating of the procedure was founded on the right to a defence and the concrete possibilities of recourse to an administrative court. In France the relationship between an authority and the users was regulated by the 1983 decree n. 1025. However the decree protected the rights of the users of public service and permitted transparency and participation rather than simplify and render more efficacious administrative action.45 In the United Kingdom procedural rules was born as a tendency to contrast the widespread use of delegated powers. The absence of an efficacious parliamentary control induced English courts to individuate and progressively perfect the categories of the legal flaws of administrative action that would have had a procedural importance. The phenomenon of mandates to the executive without a parliamentary filter was also endorsed by the Supreme Court of the United States.46 In comparison to the British experience however the United States opted to regulate with extreme meticulousness the various phases of administrative procedure. It is thus that the evolution of American administrative law drew its origin from the rules on procedures.47 In the United Kingdom instead the procedure was to be left for the most part free from rigid schemes.

1.2.2

Legal Families and Method Clarifications

The analysis of the fundamental elements of each individual legal experience shows that there are different systems within whom the modern principles of administrative action were born and established. The regime of affiliation, whether civil law or common law, is a basic element for understanding each legal experience. It is sufficient to think of how this distinction has affected the classification between countries under administrative law and countries 44 45

46 47

Morbidelli, 1993, 1009. On this point also G. Pastori, La procedura amministrativa, Neri Pozza, Vicenza 1964, 7 et seq. J.P. Costa, ‘Il procedimento amministrativo non contenzioso in Francia’, Riv. trim. dir. pubbl., n. 2, 1993, 339-345; D. Custos, ‘Droits administratifs américain et français: sources et procédure’, Revue internationale de droit comparé, n. 2, 2007, 285-305; A. Masucci, ‘Formazione ed evoluzione del diritto amministrativo in Francia e in Germania’, Dir. proc. amm., n. 1, 2011, 82 et seq. G.F. Ferrari, ‘Il procedimento amministrativo nell’esperienza anglo-americana’, Riv. proc. amm., n. 3, 1993, 422-424. Ivi, 424.

13

Administrative Action and Procedures in Comparative Law without special regimes, and monist and dualist48 legal systems. However it does not seem so relevant to the modern classification of data.49 Within the same families, the comparative study shows patterns that vary considerably even in the way of understanding the concept of administrative action. The basic features on which the two regimes have been identified have changed over time and the divide between the two families seems to have lost much of its theoretical value.50 The various elements that distanced in the past the two legal families today in a more detailed analysis appear a lot less important. Over the course of a century, in a time frame somewhat brief in relation to the affirmation and consolidation times of legal traditions, the differentiation so deep-rooted between the dualist and monist systems drastically changed up to the point of losing many elements of distinction. In England the Administrative Tribunals appeared, that were first thought of as quasi-judicial control bodies but which soon transformed into judicial authorities. France progressively organised its bureaucratic apparatus, activated a territorial and institutional decentralisation, and rethought the unitary model of public service. In England the amplification of administrative powers increased rules that derogated the principles of private law in virtue of the presence of the strong public law element. From another viewpoint the French system reduced the ambits of the application of administrative law and amplified the cases regulated by private law. In the Anglo-American experience judicial control was reinforced. The divide between civil law and common law, that for years had constituted the main dividing line between countries with an administrative law and systems in which the idea of a speciality of this branch of public law did not exist, no longer possesses its conceptual force. The distances between the cultures has softened and the legal traditions have moved closer to each other.51

48

49

50

51

On the topic M. Nigro, Giustizia amministrativa, Il Mulino, Bologna 1983, 41. For a better understanding of the distinction between monist and dualist jurisdictions, refer to Ferrari, 1991, 571, and note 25; G. Braibant, ‘La jurisdicción administrativa en derecho comparado’, La Revue Administrative, n. spécial, 2001, 381 et seq. For which, in fact, the studies carried out on the methodology do not show that they have reached a sufficient degree of development. M. Ruffert, ‘The Transformation of Administrative law as a Transnational Methodological Project’, in Idem (cur.), The Transformation of Administrative law in Europe, Sellier, München 2007, 3 et seq. speaks of ‘vacuum of methodology’. Issues related to the shortage of a shared methodological approach have also been recently reported by Jaakko Husa, A New Introduction to Comparative Law, Hart Publishing, Oxford-Portland 2015, 148 et seq. Rinella outlines the same need and points out that it would not make sense to study the right of access that was articulated on the distinction between legal families. A. Rinella, ‘Famiglie, sistemi giuridici, fonti del diritto’, in G. Morbidelli et al. (cur.), Diritto pubblico comparato, Giappichelli, Torino 2016, 38. The most attentive juridical thinking actually signals the mistake made by this approach that neglects the presence of institutions in common law countries which are instead considered as exclusive features of dualistic jurisdictions and vice versa. Neither of these reconstructions take due account of the attenuation of many of the distinctive and characteristic traits which are recorded in both experiences. Ferrari, 2009, 666-667. Finally, on the current features of the civil law model, see P.G. Monateri & A. Somma, Il modello di civil law, Torino, Giappichelli 2016, 161 et seq. P.G. Monateri, ‘The Weak Law. Contaminations and Legal Cultures’, Rechtsgeschichte, Vol. 8, 2006, 39-51.

14

1

1.3

Methodological Profiles

Administrative Functions and the Crisis of Classical Methodology

The American experience and where similar phenomena happened demonstrates that the dividing line between regulation and administrative functions is not easy to define. In America the circumstance that rulemaking has only weak connections with political activity makes it impossible to submit the action of agencies to parliamentary control. In this experience rulemaking is also an administrative function; both are regulated by the Administrative Procedure Act, the principles are more or less the same and both are contextually carried out by the same authority that establishes the rules and then carries them out. However although the definitions utilised within the individual experiences are still influenced by their different origins, the analysis of the evolutionary process that moved the field of investigation from administrative activity to the procedure determined a vast array of effects and progressive convergences. The divergences with which the analysis of administrative action were originally set up are not influential for a comparative reconstruction. The classic distinctions of public functions, founded on the analysis of their content, the shapes with which they manifest themselves, and conditioned by the tri-partition of Montesquieu, appear too soft when one tries to identify with greater precision the boundaries between administrative activity and political activity. The guardianship of general interests, to which one usually associates the concept of administrative action, also regards government, sometimes concerns the judicial function and in other occasions the distribution of services. In no contemporary legal experience is it possible to separate public functions following the idea that, in line with the most accredited theory in Italy and France, the freedom of the objectives of political activity would provide the element of distinction with administrative function. Originally this function was characterised by pre-determined bonds in the proceedings and in the choice of objectives. However political action is today subject to procedural limits and rules, logicality, rationality and fairness that often overlook the typology of the adopted acts, rendering this approach no longer up to date. National laws are bound by international treaties and rules that have extremely reduced internal sovereignty also in relation to the objectives to be obtained. After all the concept of administrative activity is so generic to render unthinkable its utilisation to satisfy needs of classification, if enclosed in the idea of the guardianship of general interests. Its content changes notably depending on the role conferred by the administrative law in each country. The evident impossibility to outline a clear conceptual distinction, by now widely established, leads to the abandoning of this approach, above all in a comparative review.

15

Administrative Action and Procedures in Comparative Law

Democratic participation is expanding, propelled by continual evolutions in environmental matters.52 Recent innovations in Spain have extended participation in rulemaking. The gap between administrative action and political function is gradually refining and regulation activity is growing. Undoubtedly within each legal tradition specific elements of distinction between rulemaking and administrative action, can still be noted. However these classifications regard the application of internal laws on the principles that regulate each activity and the boundaries between the two spheres of executive power still remain labile. This data orientates a comparative study of administrative action towards much more open methods than the theoretical elaborations of public functions which no longer have the coherent theoretical strength that characterised them in past years.

1.3.1

The Force of Legality and the Rule of Law

The connection between administrative action, procedure and rights allows us today to observe these problematics following the regulating of proceedings with an approach that, up to a few years ago, would have been unimaginable in comparative studies. However in relation to the first forms of regulation of administrative action, today there is the widespread tendency to restrict even more the exercise of discretionary power that must modulate itself depending on the strength of the legal positions involved. This fact, that was already present in the scission between the formal and substantial element of the principle of legality, remained however in the shadow in relation to the importance that studies had attributed to the element of the state apparatus, the development of public power and its relative structures.53 If one observes the trends, one can note that in particular it is the progressive affirmation of the right to know and that of participation to have influenced the other elements that characterise today administrative action. A synchronic analysis highlights that the principles of transparency, logicality, rationality, good performance, impartiality and those of the new generation, of legitimate expectation, proportionality and the various sub-principles constitute the general law with an universal diffusion. All these principles represent first and foremost the affirmation of individual and collective rights in the moment in which an authority defines general interest.

52

53

P. Oliver, ‘Access to Information and to Justice in EU Environmental Law: The Aahurs Convention’, Fordham International Law Journal, Vol. 36, 2013, 1423-1470; R. Revesz, ‘Interest Groups and Environmental Policy: Inconsistent Positions and Missed Opportunities’, Environmental Law, Vol. 45, n. 1, 2015, 1-17. Mannori & Sordi, 2004, 502 et seq.; B. Sordi, ‘Il principio di legalità nel diritto amministrativo che cambia – la prospettiva storica’, Dir. amm., 2008, 1 et seq.

16

1

Methodological Profiles

In the divide between the formal and substantial part of the principle of legality there are many traces of the importance which assumes the strength of subjective legal positions in the reconstruction of procedural models. The general approach that was affirmed in France was reconstructed with a harmonious coherence. It represented the immediate consequence of the conquest of power by the middle class that was able to subject administrative action to the first forms of restrictions via the Parliament and the law.54 The idea was reinforced little by little as universal suffrage expanded. The legislation, as an expression of general will, limited public powers and individuated the cases in which an authority could act. The principle of legality became a consequence of the liberal revolution in which Parliament constituted the central body of the organisation of the State. Consequently the legislative Act was the founding element of administrative action. Authoritative power, of which an administrative act is the expression, could be exercised only in the cases and forms envisaged by Law. It provided the elements for the exercise of power in the absence of which the power in itself did not exist. In its highest expression the principle of legality became a source of the legitimacy of every administrative action. The model affirmed itself with force in the French experience and circulated in Italy, Germany, and Spain, even if the theoretical bases and the elements of each individual tradition were extremely different. The strict meaning of the principle of legality, that corresponded to its substantial connotation, can be noted in the regulating of the elements of an administrative act and the first forms of expropriation procedures. It is however clear that this need arose, as it does still today, when administrative action had a bearing on subjective legal positions with the capacity to create, modify or extinguish them. The application of the principle of legality was limited only to these cases. Many sectors of administrative action instead did not possess this characteristic and the majority of the activity consisted in mere behaviours, for which it appeared unimaginable to hypothesise a total subjection to the Law. Thus, excluding activity that had a direct bearing on individual positions, all the other aspects of administrative action were subjected to a toned down and formal principle of legality. The Law provided a sort of general authorisation to authority that remained however subject to the Statutes that form the organisational structure and to the general principles of administrative functions.55 From the application of the principle of strict legality a series of non-authoritative administrative activities were excluded.56 On the basis of this theory the differentiation between the principle of substantial legality and formal legality was determined.57 In its strongest sense the legislative Act must 54 55 56 57

Legendre, 1968, 472 et seq. J. Chevallier, ‘La dimension symbolique du principe de legalité’, R.D.P., n. 6, 1990, 165-177. Morbidelli, 1993, 988. Ibidem.

17

Administrative Action and Procedures in Comparative Law

determine the objective of the administrative action, the procedures to follow and the form of the final measure. The content varies in consequence of the individual legal traditions. In its soft version administrative action would only find its legitimacy in the Law. The principle of legality became an origin and limit of public power even in relation to administrative acts but it was modulated with a notable flexibility. Each administrative action must find its basis in a legislative Act that confers the relative power and indicates which act is to be adopted in order to pursue the function for which an authority was equipped with a specific power. However its force would depend on the typology of the subjective legal position on which the administrative action was to have a bearing. In the Anglo-American experience the rule of law assumes a different function in relation to the procedural rights. Within the Anglo-American experience, on the hand, the development of administrative law has gone with the increase of the functions of agencies, as a consequence of the new needs expressed by the Welfare State and, on the other hand, arose above all to contrast the widespread use of delegated powers. In the United States the procedural guarantees for the most part were connected to the regulatory powers and interpreted as an integrative element of the spaces left free by the rule of law.58 Most procedural rules come into being first as a result of the constitutional principle of the due process to then be enclosed in a general procedural framework. In the United Kingdom in the absence of an efficacious parliamentary control, the judiciary took on the task of individuating and perfecting the categories of the legal flaws of administrative action that would have had a procedural importance.59 The rule of law imposed the application of the principles of natural justice to administrative action. The English courts individuated a vast array of principles on which the structure of proceedings was to be sustained. The first element was constituted by the neutrality of administrative action and consequently that of the competent official. The nemo judex in causa propria principle determined the incompatibility of officials that have an interest in the proceedings that they conduct.60 Another founding element was the duty to guarantee participation. Administrative action cannot be legitimately conducted if the possibility of the interested parties to participate in the proceedings is not guaranteed.61 Alongside such founding

58

59 60

61

R.J. Pierce, Administrative Law Treatise, Aspen Law & Business, New York-Gaithersburg 2002, 8 et seq. See also M. Comba, ‘Brevi considerazioni sul diritto al giusto procedimento negli Stati Uniti d’America’, Diritto e Società, 1992, 269; Ferrari, 1993, 424; Mannori & Sordi, 2004, 502. R. Pardolesi & M. Granieri, ‘Dottrina delle Corti e Disimpegno dei Giuristi’, Il Foro Italiano, n. 5, 2013, 187 et seq. Dimes v. Grand Junction Canal Co Proprietors [1852] 3 H.L.C. 759 HL.; R. v. Rand [1866] L.R. 1 Q.B. 230. On the topic, D. Williams, ‘Bias, the Judges and the Separation of Powers’, Publ. Law, 2000, 45 e; P. Cane, Administrative Law, Oxford University Press, Oxford 2011, 70 et seq. Bagg’s Case [1615], 11 Co. Rep. 93 b; R. v. Chancellor of the University of Cambridge [1723] 1 Str. 557; Osgood v. Nelson [1872] L.R. HL 636; Fischer c Jackson [1891] 2 Ch. 824. Craig, 2012, 399 et seq.

18

1

Methodological Profiles

principles, whose applicative ambit was specified in years of evolution, the English judiciary established thus the duty of fairness and the ban on the irrationality of administrative action that are today in continuous development.62

1.4

The Influence of Community Principles

Two major factors of convergence exist: one is the important cession of sovereignty of countries and the other is caused by the force that fundamental rights assume today in the international contest. In Western Europe legal traditions are constantly being subjected to a process of rapid transformation, due to both the imposition of EU rules on administrative action as well as to the progressive taking root of international law. In member States the European Union represents the most important convergence factor in procedural rules.63 The principles of transparency,64 legality,65 equality,66 subsidiarity,67 proportionality68 and the duty to give reasons69 stem directly from European laws. Some principles were selected from within the States and elevated to foundations of administrative action in the European contest. Subsequently they were extended directly to other internal jurisdictions with a different force depending on the legal source utilised. If not expressly formulated in rules these elements were affirmed by the Court of Justice. This is what happened with legal certainty, the precautionary principle, the good administration principle, the right to be heard, legitimate expectation, proportionality and the principles connected to the government of the environment. And likewise for the principle of compensation for tort to legitimate interests. They are all principles to which in essence the majority of the reforms of administrative law completed in the jurisdictions are 62

63

64 65 66 67 68 69

R. Dworkin, A Matter of Principle, Harvard University Press, Cambridge 1985, 11; M. Terrasi, ‘Dalla natural justice alla fairness: il privato nel procedimento amministrativo’, Foro amm., n. 2, 1989, 2588; P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, Publ.Law, 1997, 467487; M P. Chiti, ‘I «nuovi poteri»nel Common Law. La prospettiva del diritto amministrativo’, Dir. pubbl., n. 2, 2009, 339-409. G. Marcou, ‘Le droit administratif entre l’ordre juridique national et l’intégration européenne’, in Idem (cur.), Les mutations du droit de l’administration en Europe – Pluralisme et convergences, L’Harmattan, Paris 1995, 63 et seq.; Caranta, 1996, 604-617; J. Schwarze, ‘The Convergence of the Administrative Laws of the EU Member States’, in F. Snider (cur.), The Europeanisation of Law: The Legal Effects of European Integration, Hart Publishing, Oxford-Portland Oregon 2000, 163-182; M. Maor, ‘A comparative perspective on executive development: trends in 11 european countries’, Publ. Adm., Vol. 78, n. 1, 2000, 135-152; C. Hilson, ‘The Europeanization of English Administrative Law: Judicial Review and Convergence’, European Public Law, Vol. 9, n. 1, 2003, 125-145; C. Ohler, Die Kollisionsordnung des Allgemeinen Verwaltungsrechts: Strukturen des deutschen Internationalen Verwaltungsrechts, Mohr Siebeck, Tübingen 2005. Art. 41 Nice Card. Arts. 220-230 Tr. CE. Arts. 12, 141, 173 Tr. CE. Arts. 2-5 Tr. CE. Arts. 5, 40 Tr. CE. Arts. 288, 289-296 T.F.U.E.

19

Administrative Action and Procedures in Comparative Law

ascribable. The adaptation to EU law occurred mostly via the internal disapplication of the laws that contrasted with European rules when the member States omit to transpose the directives. In all the other cases the receptions were more subtle but notwithstanding this they were not less efficacious, due to the fact that the cultural impact determined by the new rules produced the numerous cases of spontaneous adaptation.70 Each national authority must apply the European principles of administrative action when it operates in a sector governed by Community law71 by disapplying domestic law72 particularly where there are specific provisions, such as the disciplining of public works tenders or right of access. Once a principle that previously did not exist implants itself into a State, this insertion produces a vast array of chained reaction effects, from which derived further modifications in many other sectors. It is sufficient to consider the importance of a unique line in composite proceedings.73 Judicial review on the proportionality of administrative action induced administrators to carry out evaluations that were much more attentive to the interests of the addressees of an administrative act. The States were forced to modify their legislation on procedure in order to better acquire and evaluate the interests at stake, coming to a solution that was adequate for pursuing the objectives envisaged by law and with a minimum sacrifice of citizens’ interests. The same consequence stems from the need to respect legitimate expectation of the addressees of an administrative act. The assertion of rights in proceedings was also greatly strengthened by the impact of Community pressure on judicial actions.74 It affirms the principle of the effectiveness of judicial protection,75 the principle of the completeness of the investigation76 and new rights regarding the contractual and non-contractual liability of public bodies. The idea of non-

70

71 72 73 74 75 76

J. Schwarze, ‘Tendencies towards a Common Administrative Law in Europe’, Eur. Law Rev., Vol. 16, 1991, 3-19; M. Schröder, ‘Das Verwaltungsrecht unter europa¨ischen Einfluss’, Verwaltung, Vol. 31, 1998, 256260; K. Michelet, ‘La Charte des droits fondamentaux de l’Union européenne et la procédure administrative non contentieuse’, AJDA, 2002, 949; P. Ridola, ‘La Carta de los derechos fundamentales de la Union Europea y el desarrollo del constitucionalismo europeo’, in F. Balaguer Callejon (cur.) Derecho constitucional y cultura. Estudios en homenaje a Peter Häberle, Tecnos, Madrid 2004, 463 et seq.; Auby, 2010, 19-64; W. Kahl, ‘Der Europäische Verwaltungsverbund: Strukturen – Typen – Phänomene’, DerStaat, Vol. 50, 2011, 353-360. On the topic see also A. Zito, ‘Il «diritto ad una buona amministrazione» nella Carta dei diritti fondamentali dell’Unione europea e nell’ordinamento interno’, Riv. it. dir. pubbl. comunit., n. 2, 2002, 425-444; L. Pegoraro, ‘Existe-t-il un «droit» à une bonne administration? Observations critiques préliminaires sur l’utilisation (et l’abus) du terme «droit»’, Les annales de droit, n. 5, 2011, 177-197. European Court of Justice, Hauptzollant Hamburg-Jonas, 26 April 1988, Case 316/86. European Court of Justice, Fratelli Costanzo, 22 June 1989, Case 103/28; Idem, 29 April 1999, Case C-224/97. G. Della Cananea, ‘I procedimenti amministrativi composti dell’Unione europa’, Riv. trim. dir. pubbl., 2004, 307 et seq. European Court of Justice, Zuckerfabrik, 21 February 1991, Case C-143/88 e C-92/89, on the topic of precautionary protection. European Court of Justice, Johnston, 15 May 1986, Case 222/84, e Heylens, 15 October 1987 Case 222/86. European Court of Justice, Hauptzollamt München-Mitte, 21 November 1991, Case C-269/90.

20

1

Methodological Profiles

judicial procedures for resolving conflicts and other forms of protection against maladministration began to emerge.77 There was also the direct and indirect influence of the European Convention on Human Rights. For decades the Court of Justice has argued that the rights and freedoms enshrined in the Convention are principles of Community law and in turn the European Court of Human Rights has examined the action of Community institutions in the light of the European Convention in a constant dialogue that influences the respective legal regimes.78

1.5

International Convergence Factors

International treaties reinforce subjective legal positions.79 The great quantity of agreements of a bilateral nature but much more often involving more contracting parties, formed specific regimes in many sectors, among which the environment and in various economic ambits. International organisations have today powers and functions with which they establish common standards that are to be applied within jurisdictions,80 in some cases in a binding manner. To such elements are added the pressures from international bodies that acquire and elaborate the information stemming from the states on the modalities with which internal administrative activity is carried out,81 while others involve various institutions with a strong international importance.82 Many of these institutions present problematics similar to the administrative action of the independent agencies in the United States, among which the lack of a constitutional legitimacy and a solid democratic basis assume a greater signif77 78 79

80 81

82

A. Massera, I principi generali, in M.P. Chiti & G. Greco (cur.), Trattato di diritto amministrativo europeo. Parte generale, tomo I, Giuffè, Milano 2007, 369 et seq. G. Della Cananea, ‘I fattori di convergenza e di integrazione’, in Napolitano (cur.), 2007, 339. G.F. Ferrari, ‘I diritti tra costituzionalismi statali e discipline transnazionali’, in Idem (cur.), I diritti fondamentali dopo la Carta di Nizza. Il costituzionalismo dei diritti, Giuffrè, Milano 2001, 59; M. Cartabia, ‘I diritti fondamentali in Europa dopo Lisbona: verso nuovi equilibri?’, Gior. dir. Amm., n. 3, 2010, 221-226. G. della Cananea, 2007, 325 et seq.; P. Ala’i, ‘From the Periphery to the Center? The Evolving WTO Jurisprudence on Transparency and Good Governance’, JIEL, Vol. 4, n. 11, 2008, 779-802. Among the most important influences, there is that of the Council of Europe, the OECD (Organization for Economic Cooperation and Development), the Basel Committee, instituted by the central banks of the States that participate in the G7 and that in its actions has managed to overwhelm international bodies of great worldwide influence, such as the International Monetary Fund and the World Bank, in addition to a series of regulatory authorities of Latin America, Arab Countries and the majority of the African continent. See Della Cananea, 2007, 332 et seq. Many international organisations, among which the OECD, are involved in the monitoring of the devlopment of expertise on the techniques of the use of public resources, elaborating some parametrs with which State actions on the financial markets are evaluated or to detect the level of efficiency or existing corruption, within the jurisdictions. In essence, these bodies function as supervisors of the public activities of States and from the data published it is easy to verify the malfunctions that exist in some Countries. It is a phenomenon characterised by the international context in which public adminstrators find themselves operating to which a global characteristic has been conferred by many parties. Cfr. Napolitano, 2007, 54 et seq.

21

Administrative Action and Procedures in Comparative Law icance.83 For this reason the procedural models utilised in the administrative activity conducted by international bodies provide guarantees imitating the American model founded on the professional technical capacities of the regulators, on the one hand, and on the other hand by wide forms of participation.84 It is an administrative system composed of common rules that are affirmed via a sort of international rule of law.85 In the same context are to be inserted the innovative trends that stem from the progressive affirmation of the strength of international conventions with the tendency to also relate the principles of a fair trial into the context of the fair procedure:86 each administrative procedure must be carried out in the respect of procedural guarantees that ensure the participation of the interested parties, transparency, the right to a defence and the duty to give reasons.

1.6

The Search for Procedural Models

The speciality of administrative law is being reduced by the new principles offered by case law; the need for reasonableness leads to taking into consideration, within the procedures, the elements such as good faith, fairness, rationality and proportionality which for centuries were observable only in private law. The distinctions articulated on the previous conceptual categories become no longer valid. Many of these approaches are also applied in rulemaking in which the function was no longer administrative, due to the fact that it stemmed from the traditional logic of imparting orders. There are jurisdictions that evolved towards the undifferentiated application of the same rules both in adjudication as well as in rulemaking.87 In other cases the symbiosis between administrative action and procedure ends in the presence of general 83

84

85

86

87

G. Timsit, ‘Le droit administratif face à la mondialisation. Les attentes des citoyens’, European Review of Public Law, n. 1, 2010, 315-330; H. Wenander, ‘Recognition of Foreign Administrative Decisions. Balancing International Cooperation, National Self-Determination, and Individual Rights’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 71, 2011, 755-785. A. Meyerstein, ‘Global Private Regulation in Development Finance: The Equator Principles and the Transnationalization of Public Contracting’, in M. Audit & S. Schill (cur.), The Transnational Law of Public Contracts, Bruylant, Bruxelles 2014, 1-41. R.B. Stewart, ‘Il diritto amministrativo globale’, Riv. trim. dir. pubbl., n. 3, 2005, 633 et seq.; G. Antony et al. (cur.), Values in Global Admninistrative Law, Hart, Oxford 2011, 17 et seq.; G. Shaffer, ‘Transnational Legal Process and State Change’, Law & Social Inquiry, Vol. 37, n. 2, 2012, 229-264. J.-F. Flauss, ‘Convention européenne des droits de l’homme et droit administratif: septembre 1996septembre 1997’, AJDA, n. 53, 1997, 977 et seq.; Idem, ‘Droit administratif et Convention européenne des droits de l’homme: octobre 1997-octobre 1998’, ivi, 54, 1998, 984 et seq.; J. Andriant Simbazovine et al., ‘Jurisprudence administrative et Convention européenne des droits de l’homme’, Rev. fr. dr. adm., n. 14, 1998, 1203; S. Cassese, ‘La Convenzione europea dei diritti dell’uomo e i diritti amministrativi nazionali’, Diritto Pubblico Comparato Europeo, n. 1, 2001, 311 et seq. R.B. Stewart, ‘Administrative Law in the Twenty-first Century’, New York University Law Review, Vol. 78, 2003, 437 et seq.

22

1

Methodological Profiles

administrative acts. In other cases still the system is mixed due to the fact that general acts are also included in the concept of administrative action. The observation of the data collected shows that in all the countries analysed the same principles of administrative action were mostly established. There is a widespread duty to ensure that the addressees of the final decision are involved, access to acts and documents is permitted, observations and further documentation is acquired and the reasons are given taking into account the completed investigation and the contributions of citizens. However the systems with which these fundamental principles are guaranteed and the regulatory standards, are considerably different. The difference stretches from the United Kingdom where there is no general law on procedure to cases where specific legislation and courts’ decisions exist. In the United States, despite the existence of the Administrative Procedure Act, the application of the rules for formal proceedings is extremely limited. France has shown considerable distrust towards a general codification of procedural rules. Germany and Italy opted for the detailed regulating of the various phases of proceedings. This situation records its greatest expansion in Eastern European countries where there are laws on procedure consisting of more than 300 articles. In some cases the regulation of procedure was kept separate from that of an administrative trial while in other cases the codes regulate both aspects. Some countries established formal and informal procedures. Sometimes the laws also regulated sectoral proceedings in one context, as is the case of planning provisions in Germany and sanctioning proceedings in Spain. The comparative view offers a wide variety of adopted solutions that could also be categorised on the basis of law-making techniques, starting from the joint discipling of the procedure and a fair trial or dividing by geographic areas and influence, separating legislation that have prescribed formal and informal procedures. However these classification systems would only highlight the formal aspects of administrative action, which on the contrary must be integrated with the substantial assessments in order to understand their basic elements. The study of the various phases of the administrative procedures highlights that the relationships between subjective legal positions and the needs of discretionary power were dealt with and resolved in different ways. Jurisdictions are characterised thus by the modality with which they attempt to resolve via their procedural models, the tensions that constantly exist between the public and private interests involved in the administrative action.88 In the ambit of these tensions the progressive consolidation of principles represents the fundamental element of convergence. It will undoubtedly be the diachronic analysis 88

Gutteridge, in the middle of the last century, among the central elements of the analysis of comparative administrative law, established the search for the convergences on the systems for balancing administrative efficiency and individual rights. Cfr. H.C. Gutteridge, Comparative Law – An Introduction to the Comparative Method of Legal Study and Research, Cambridge University Press, London 1949, 29 et seq.

23

Administrative Action and Procedures in Comparative Law

that will highlight the major aspects of the procedural institutes in their evolutionary process, that will aid us in understanding with as much precision as possible what are the real convergences in relation to the formal affirmation of common models. The methodological approach proposed therefore requires a preliminary examination of the genesis and evolution of procedural rules. In the reconstruction of the procedural models the analysis of the conditions, modalities and intensity with which the same principles established themselves in the respective countries is also of importance, due to the fact that their concrete applications, the techniques with which they are guaranteed and the consistency that they assume in the various procedural stages are different.89

89

Barnes speaks of a succession of three generations of proceedings on the basis of governance models. See J. Barnes, ‘Towards a Third Generation of Administrative Procedures’, in S. Rose-Ackermann & P.L. Lindseth (cur.), Comparative Administrative Law, Edgar Algar, Cheltenham-Northampton 2010, 336-356. Cassese classified the element of participation on the bases of the protection that interests obtain before in the procedural phase and then in judicial action. Cfr. S. Cassese, ‘La partecipazione dei privati alle decisioni pubbliche. Saggio di diritto comparato, Riv. trim. dir. pubbl., n. 1, 2007, 13-41. Along similar lines, M. Asimow, ‘Five Models of Administrative Adjudication’, American Journal of Comparative Law, Forthcoming Vol. 63, 2015, 1-48 that singles out five systems via the combination of the characterisitics of administrative procedures and the successive judicial control.

24

2

The Power of Principles

2.1

Basic Elements of the Comparative Analysis

If one observes the evolutionary trend of the procedure rules in civil law and common law, two factors have had a bearing on their genesis and consequent evolution. The first aspect is the role taken by the judiciary. In some experiences the evolution of the basic principles of administrative action has been defined by a slow growth of courts’ decisions. This evolution that at times slowed down the training process however contributed to a strong rooting of the need to respect fundamental rights. This effect instead was felt with less intensity in cases where the genesis of the same principles found its maximum expression in legislative acts. The importance of case law leads one to take into consideration the impact that a judicial organisation produces in the definition of procedural models, due to the fact that their affirmation manifests a different strength, depending on the internal relevance conferred on the judicial function regarding administrative action. The second element is constituted by the structure of the bureaucracy to which executive power was conferred and the consequent value that within each jurisdiction was attributed to the final act rather than to the formative process of public interest. Each public function is carried out via forms of procedures with a sequence of acts that constitute the presuppositions imposed for the adoption of successive acts up to the final measure. However studies conducted on the principles and the rules of administrative action for years did not focus on the various procedural phases. When they began to also take an interest in the formation of administrative will, the attention was focused on the effects of the procedural flaws on the final act. This fact has influenced the right of access, participation, motivation and the way in which the problems of administrative inertia have been addressed. Although in the successive developments a large part of this approach lost its importance, the characteristic traits of the initial model that today still influences some procedural institutions, remain. In other cases the focus was on the procedure, regardless of the importance attributed to the final act. In spite of the differentiation that existed between the various forms of administrative action, an administrative act, as a unilateral, specific and executive act, assumed in France a dominant position1 which for a long time charac1

M.C. Bergerés, ‘Les actes non réglementaires’, AJDA, 1980, 3; F. Chaltiel, ‘Le régime juridique de l’acte administratif individuel (Développements récents)’, Petites Affiches, 2001, 9-14. In fact the symmetry between act and administrative activity, which has found its greatest expression in France, was based on not solid theoretical bases, because the focus was centred only on executory acts, without evidencing the significant

25

Administrative Action and Procedures in Comparative Law terised the emerging administrative law.2 An administrative act was viewed as a unitary model because unitary was the objective for which it was regulated; that is to say a category that incorporated the idea of administrative action that could be the object of a judicial control. The centrality of the act served thus to individuate an element of the expression of the power of the administrative structure around which to construct the counteractions against public power. In countries in which the need for theoretical reconstructions on the act was not felt, focus was first and foremost centred on the acknowledgement of specific rights in proceedings, as in judicial action. English juridical thinking never dwelled on the final act, while it approached the problems related to the relationships between citizens and public administrators, following its legal tradition.3 The experience of the United States was influenced by the organisational structure and the consequent need to stem the power conferred to the independent authorities respecting the due process of law. Hence the three elements that will be analysed are: 1) the incisiveness of the judiciary, 2) the organisation of executive power and 3) the importance of the final act. The aspects that characterise each jurisdiction emerge from the combination of these three elements and make clear the relationships between proceedings and trial, and the connective tissue on which all the subsequent innovations were thus embedded.

2.2

The Origins in the Austrian Experience

Although Spain adopted the first law on administrative procedure in 1889, it is the Austrian legislation that represents the concrete experience of an organic set of rules that influenced the laws that, little by little, were approved in Europe.4 At the end of the nineteenth century the Spanish law had regulated the procedural phases, the judicial actions against administrative acts, the time limits within which opinions were to be given and final measures to be issued. The rules however were by no means efficacious due to the fact that lacked sanctions.5 Spain proved to be not ready for the establishment of the effective law of administrative proceedings.

2 3 4 5

differences that existed between them. The administrators could pursue a common public interest with different powers and measures, sometimes through private law instruments, sometimes by permissions, in other cases by granting non-existent rights and at other times by acts with which was possible limit the exercise of strong subjective legal positions. The dogmatic reconstruction of the administrative act was therefore not correct because it was based on the executive element that did not characterize all decisions taken by authorities. Così Morbidelli, 1993, 984. Legendre, 1968, 472 et seq. Craig, 2012, 348 et seq. Morbidelli, 1993, 1003. F. López Menudo, ‘Los principios generales del procedimiento administrativo’, in J. Barnés Vazquez (cur.), El procedimiento administrativo en el derecho comparado, Civitas, Madrid 1993, 114.

26

2

The Power of Principles

The early years of the twentieth century were instead moments of great transformations for Austria that started to build its own identity in the aftermath of the dissolution of the Austrian-Hungary monarchy and after the end of the World War I. The fundamental law of the State of 21 December 1867 regulated the general rights of the citizens of the kingdoms and the Länder of the National Council and constituted part of the Constitution composed of five fundamental laws that were adopted by the Eastern part of the Austrian Empire in the North German Confederation.6 A judicial control on administrative decisions had existed since the second half of the nineteenth century with the Supreme Administrative Court.7 The 1875 Law already gave the Austrian judiciary the possibility to annul decisions by public bodies in contrast with the principles that already in those years regulated the exercise of administrative function. In the late nineteenth century the courts had acknowledged some fundamental citizens’ rights among which emerged the right to be heard before the adoption of an unfavourable administrative act. The Austrian judiciary had imposed the duty to give reasons and the participation of the addressees of the final measure with the same objective of safeguarding citizens’ interests in relation to the exercise of administrative power. Administrative activity had thus already been confined within clear boundaries. Hence in Austria a corpus of principles was being elaborated and organised in specific collections.8 When the Austrian-German Republic was proclaimed, the 1920 Federal Constitutional Law provided all the bases of the modern Austrian institutional structure. Furthermore the Laws of 1925 regulated the competence arrangement between the central Federation and the internal autonomies. In 1925 thus there was the occasion to incorporate courts’ decisions within legislative acts. The existence of federal rules permitted the extensions of these procedural rules to the whole of Austria.9

2.2.1

The First Procedural Rules

The theoretical approach stemming from the well-known ideas of Kelsen saw in administrative law the expressions of a public law power, characterised by a gradation from the

6 7

8

9

G. Parodi, ‘La Germania e l’Austria’, in P. Carozza et al (cur.), 2009, 225. The Austrian administrative justice system was recently modified, in January 2014, with the introduction of numerous corrective actions that were elaborated in the Länder and a total restructuring that envisaged an administrative tribunal for each State. On the topic, G. Grassl, ‘Major Reform of Administrative Jurisdiction System Takes Effect as from 1 January 2014’, Legal Insights, Nov. 5, 2013. Among the more well-known, there is that of F. Tezner, ‘Handbuch des österreichischen Administrativverfahrens’, VerwArch n. 5, 1896. By the same author, Das freie Ermessen der Verwaltungsbehörden, Leipzing 1924, 132. L.K. Adamovich and B.C. Funk, Allgemeines Verwaltungrecht, Vienna-New York 1987, 371.

27

Administrative Action and Procedures in Comparative Law general norm to the individual decision.10 Some principles of a trial were transposed into administrative proceedings. The rules affirmed the need of independence and impartiality in administrative action, participation and the obligation to carry out in-depth analysis. It was the success of the principle of legality in a strict sense, that it to say the idea that a detailed composition of the various phases of the procedure constituted a guarantee that the principles regarding administrative action would be respected. Administrative action became a method to develop State functions in conformity with the Law in the same manner as a trial. Both procedures were in a hierarchical relationship in the pyramid that ranged from the general norm to the administrative decision and both represented a model of the exercise of public functions. The guarantees related to a fair trial such as the principle of participation, the duty to give reasons and independence and impartiality, were extended to administrative proceedings due to the fact that they were supported by the same theoretical principles.11 The approach that stems from the first legislative Acts on procedures in Austria was founded on the idea of the limitation of power by the Law. For the first time the regulation of the procedural phases represented the principle solution to guarantee that public action, just like in a trial, was carried out with the constant consideration and evaluation of the interests involved. The Law that must regulate proceedings in all its various phases was the instrument for guaranteeing citizens’ rights. The principle of legality became the fundamental principle of administrative law, first and foremost in the procedural sequence with which an administrative will would be formed. The four procedural Acts of 1925 acknowledged for the most part courts’ decisions that had been in the process of forming for over 30 years.12 There was rules on competence, the parts of the procedure, the techniques for drawing up minutes and memorandum, time limits, investigation phases, content and form of the measures and notification modalities. The main inspirations were extracted from the rules of a trial. Proceedings were of an ex-officio initiative and based on an investigation model. In contrast proceedings assumed less formal aspects when activated by the interested party. Evidence had to be gathered in the proceedings and the authority had to search as much as possible for the material truth and the means for obtaining evidence in proceedings were limitless. Once again the correspondence between a trial and procedure can be observed in the circumstance that participation was admitted only in relation to the interested party in 10 11

12

H. Kelsen, IV, ‘Die Lehre von den drei Gewalten oder Funktionen des States (1923-1924)’, ARWP, n. 17, 1923-1924, 374-408. F. Tezner, Zur Lehre von dem freien Ermeβen der Verwaltungsbehörden als Grund der Unzuständigkeit der Verwaltungsgrichte, Manz, Vienna 1888; A. Merkl, Allgemeines Verwaltungsrecht, Springer, Vienna Berlino 1927, 200. H. Schäffer, ‘El procedimiento administrativo austriaco: evolucion, estado actual y perspectivas de futuro’, in J. Barnés Vázquez (cur.), El procedimiento administrativo en el derecho comparado, Civitas, Madrid 1993, 405-440.

28

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The Power of Principles

the proceedings, that is to say possessors of a right or a legal interest that could be implicated in the decision to be taken. The positivistic approach stemming from the Austrian experience would influence the majority of the rules on procedures that would be adopted by the principle countries of civil law,13 with the exception of France and constituted a valid example for the 1976 German Federal legislation.

2.3

The Principles of Administrative Action in France

For years a wide range of factors prevented France from having a uniform regulating of administrative procedure. More than any other country a consistent part of juridical thinking had manifested its deep-rooted aversion to the coding of the rules on administrative action,14 supported by centuries of consolidated faith in the Conseil d’État.15 In this experience the effects deriving from its administrative justice system and the importance attributed to the final act rather that to the procedure, can be felt. In this country the conditions that prompted the Austrian legal system to regulate in detail the stages of administrative procedure were lacking and although provisions relating to specific moments of administrative activity were adopted, the tendency to avoid the lack of a general codification is explained via the diachronic analysis of French juridical thinking and the fundamental role played by the Conseil d’État. Much more than any other country in French administrative law great importance was assigned to the final act which represented the principle element of the expression of the puissance publique.16 The administrative decision constitutes the effect of a unilateral formation of administrative will and it is regulated by a special regime in relation to private law. The administrative act could not therefore be founded on conceptual categories of private law which had been formed on the element of bi-laterality. An administrative act had to produce its effects also against the will of the addressee. In France, and subsequently in all the countries where the same approach has spread, the first rules on procedures were

13

14 15

16

Switzerland adopted a general law on procedures in 1968, followed then by the internal cantonal law which inserts itself into a series of principles already elaborated by the federal Tribunal among which, in addition to the traditional overlapping to the law on administrative action, there is the principle of proportionality as a direct derivation of substantial equality, sanctioned by Art. 4 of the Constitution. Cfr. B. Knapp, ‘Il procedimento amministrativo in Svizzera’, Riv. trim. dir. pubbl., n. 2, 1993, 327-338. Administrative law is in fact seem principally as being of a jurisprudential nature, Cfr. G. Vedel & P. Devolvé, Droit administratif, PUF, Paris 1990, 87; Burdeau, 1989, 10. G. Braibant, ‘Le rôle du Conseil d’État dans l’élaboration du droit’, in Mélanges René Chapus, Montchrestien, Paris 1992, 91; V. Wright, ‘Le Conseil d’État et les changements de régime: le cas du Second Empire’, Rev. adm., n. spéc., 1998, 13. M. Lefébvre, Le pouvoir d’action unilatérale de l’administration en droit anglais et français, L.G.D.J., Paris 1961.

29

Administrative Action and Procedures in Comparative Law

elaborated observing the effects on the final act that was expression of the will of the public powers.17 The concept of administrative action was thus theoretically framed within an administrative act and the legal force with which it was endowed, a direct expression of the authoritative power of a public administration as recognised by the laws.18 The function conferred to the rules however in the French experience assumed a different connotation, above all due to the exaltation of the role of the Conseil d’État in the progressive construction of the limits to the prerogatives of public officials.19 When the administrative judiciary began to exercise its function bureaucracy possessed a wide range of exorbitant powers in comparison to private law, which constituted the effect of the importance conferred to public officials that carry out the relevant social function of establishing and taking care of general interest in France. In the successive years the Conseil d’État began to establish the first elements of a diverse way of intending administrative law and the first limits to administrative action, among which the fundamental legal flaw of the abuse of power. At the beginning of the twentieth century French juridical thinking could do nothing but document the importance assumed by the Conseil d’État in the role of guarantor for the protection of citizens’ interests in relation to the prerogatives assumed by a public power.20

2.3.1

The Development of the erreur manifeste d’apprèciation

However very soon the construction of rules of administrative action based on the concept of the administrative act began to crumble in the same country that had theorised it. The French judiciary highlighted the problem that for years the English jurists had attempted to avoid: that is to say, the limitations to discretionary power21 that is inherent in the administrative function and that became inevitable with the growth of the tasks delegated to public bodies. The criterion of the strict legality of an administrative act demonstrated all of its limits when the administrator made errors in the exercise of its function. That is to say if it had used a power conferred for a specific objective for a totally different end or had adopted acts that were contradictory or if the disposition of the measure was contradictory to the motivation expressed or furthermore if it was founded on a fact deemed to be true but in reality non-existent. In a short space of time the judiciary extended its reach

17 18 19

20 21

Vedel & Devolvé, 1990, 232; J. Rivero, Droit administratif, Dalloz, Paris 1990, 113. Lately, Alonso, 2015, 886. G. Vedel & P. Devolvé, Le systéme français de protectiondes administrés contre l’Administration, Dalloz Sirey, Paris 1991, 82; D. Amirante, ‘La giustizia amministrativa in Francia’, in G. Recchia (cur.), 1998, 135 et seq. Burdeau, 1995, 10; lastly P. Gonod, Le Conseil d’État et la refondation de la justice administrative, Dalloz, Paris 2014, 146. Conseil d’État, 31 January 1902, in S. 1903, III, 113. On the topic Rivero, 1990, 105.

30

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The Power of Principles

beyond the control of the strict legality of an administrative act via the legal flaw of the excess of power elaborated by the Conseil d’État. Once having permitted the possibility to judge the modalities of the execution of the function above all in the ambit of the error of abuse of power, the administrative court had opened a breach in the sphere of incontestability of the choices made and in accordance with the principles of equality and rationality. The following step was to individualise the abuse of power due to the failure to give reasons without which it would have been impossible to reconstruct the logic of the procedure undertaken. Hence the French courts would have been able to verify if the presuppositions on which the challenged administrative act was founded actually existed, had been sufficiently analysed and if the authority had respected or not the opinion offered by an advisory body. The legal flaws observed in the various phases of the procedure for the formulation of the final act assumed an increasing importance within judicial review. The illegitimacy in the procedural phases would have had a relevance on the final act and also led to its invalidity if the administrative act in itself was in essence devoid of formal flaws.22 In a short period of time the idea that an administrative act could not be theoretically considered as being distinct from a series of acts, elements and measures that the authority should have acquired before the final decision, began to assume an extreme importance. Juridical thinking began thus to shift its attention to the procedure, individuated as a series of phases each having its own specific objective. This evolution of French administrative law immediately brought about two consequences: first that the Conseil d’État was ever more considered as the institution that in France had created administrative law; secondly, the rules that little by little were elaborated by the administrative judiciary stemmed from the disputes between citizens and public authorities and brought with them the idea of the limitation of public power in relation to the advancement of citizens’ rights. The administrative courts assumed the function of the defence of private interests in relation to administrative action. The most efficacious tool in this continual reconstruction work of the principles was individuated in the abuse of power. The Conseil d’État managed to exercise an ever more penetrating control on administrative operate via the analysis of the function conferred by law. The erreur manifeste d’appréciation permitted verifying if there had been a clear disfunction in the exercise of discretionary power by an authority. The costs-benefits analysis permitted the annulment of administrative measures when the benefits deriving from an adopted measure appeared disproportionate to the costs.23 Juridical thinking considered illegal an act adopted in presence of the excess of power since a public body should behave in accordance with the 22 23

R. Chapus, Droit administrative général, Montchrestien, Paris 2001, 1031; G. Dupuis et al., Droit administrative, Dalloz Sirey, Paris 2011, 664. J.Y. Vincent, ‘L’erreur manifeste d’appréciation’, Rev. adm., 1971, 407-420; J.P. Costa, ‘Le principe de proportionnalité dans la jurisprudence du Conseil d’État’, AJDA, 1988, 434.

31

Administrative Action and Procedures in Comparative Law criteria of morality and good administration.24 Thus as in all the other legal systems an administrative judge could check the reasonableness of administrative action. This circumstance determined in France a further advancement of the role and function of the Conseil d’État in the elaboration of the principles that regulated administrative action.

2.3.2

Limits to Executive Power and Codification

According to French juridical thinking the genesis and development of the instruments of protection of citizens’ interests against public administration was a function of an administrative judge and not of Parliament.25 Two elements reinforce this concept: i) public officials were an expression of the middle class that would have defended its own interests in Parliament. The law therefore would have guaranteed only a section of society; ii) the principle of tight legality did not indeed prevent in France the reaffirmation of the prerogatives of public powers, despite the revolutions of the late eighteenth century and in contrast to that which occurred in England after the seventeenth century revolution. The supremacy of the judiciary in relation to Parliament for the disciplining of administrative activity changed only towards the end of the twentieth century when in France specific laws on transparency, participation and duty to give reasons were adopted.26 Two legislative Acts in 1978 regulated the exercise of the right to access. In 1979 the law on the duty to give reasons was approved, integrated by successive decrees in 1983 that regulated administrative acts. The year 2000 saw the establishment of new rules regarding the relationship between citizens and public administrators. In 2013 a new regulation of administrative silence, with a general mandate to re-organise the rules, came into force. French juridical thinking had for years pointed out all the malfunctions that had arisen due to the absence of a legislative act on procedures, such as the difficulty of knowing the legal sources on the part of citizens, the absence of efficacious forms of simplification and rules on the time of procedures.27 With decree n. 1341 of 2015 France also equipped itself with a code, but the rules mainly constitute a collection of the principles elaborated by the Conseil d’État with few innovations. The French Parliament was trying to recuperate spaces that previously had been left only to the judiciary, creating a mixed system in which, together with legislative Acts, cohabit the principles elaborated by the administrative courts. This evolution however

24

25 26 27

J. Hummel, ‘La théorie de la moralité administrative et l’erreur manifeste d’appréciation’, Rev. adm., n. 291, 1996, 335; V. Goesel-Le Bihan, ‘Le contrôle de proportionnalité dans la jurisprudence du Conseil constitutionnel: figures récentes’, Rev. fr. dr. const., n. 70, 2007, 269-295. Vedel & Devolvé, 1991, 82. Costa, 1993, 339-345; J. Chevallier, ‘Les orientations nouvelles des politiques de réforme administrative en France’, Pyramides, n. 19, 2010, 15-28. P. Gonod, ‘Codification de la procedure administrative, la fin de l’exception française?’, AJDA, 2014, 395.

32

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The Power of Principles

gave a particular characterisation to the French experience. It is an approach modelled on the right to a defence by the administrated with a particular focus on the protection of the right to access and participation in proceedings and it is now also gaining a foothold in rulemaking and the legislative function.

2.4

Rule of Law and the Anglo-Saxon Experience

The rules of administrative action developed in the United Kingdom via the progressive expansion of the rule of law with which the English judges skilfully curbed arbitrary tendencies and controlled the distortions in the use of administrative discretion that were characterising France, Spain, the German Principalities and Italy.28 The English concept of the rule of law, as established in its historical evolution, led to the idea that one single legality that governed human behaviour should exist, whose principles were to be widely applied without any distinction between citizens and public authorities, all being subject to common law and all being accountable for violations. That is to say, that one single law existed, that was to be defended before the same judge.29 This approach, that owes its success to its strong ideological connotation, most probably would not have prevented the development of English administrative law if the Privy Council and the Conciliar Courts, that up to the Industrial Revolution had dealt with litigations regarding administrative matters, had not been abolished.30 However in the years after 1688 England made a drastic choice: it limited the powers that the Crown had exercised in the antecedent years, enhanced the role of Parliament and rejected the idea that, based on the French model, an administrative apparatus at the service of executive power could be constituted.31 The legislative Acts assumed even a regulatory nature with the aim of reserving for Parliament the activity that in other countries was traditionally carried out by administrative structures via the adoption of public acts. The turning point at the end of the seventeenth century opened the door to a rigorously monist tendency of the administrative justice system that for the most part conserved its approach over the years and characterised the genesis and the evolution of the regulating of procedures in the United Kingdom.32 28 29

30 31 32

L. Scarman, ‘The Development of Administrative Law: Obstacles and Opportunities’, Public Law, Vol. 56, 1990, 490-494. L. Beatson, ‘«Public» and «private» in English Administrative Law’, LQR, Vol. 103, 1987, 34; C. Harlow & R. Rawlings, Law and Administration, Butterworths, London 1997, passim; D. Oliver, ‘Droit public-droit privé enAngleterre’, Rev. intern. dr. Comp., n. 2, 2001, 329. D’Alberti, 1992, 64. H.J. Laski, Le règne de la loi en Angleterre, in Annuaire de l’Institut international de droit public, Paris 1930, 711 et seq. Wade, 1988, 358; J.F. Mc Eldowney, ‘Administration and Law in England in the 18th and 19th Centuries’, J. eur.Verw., n. 8, 1996, 19.

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Administrative Action and Procedures in Comparative Law

Subsequent to the evolution of the Welfare State the task of the public bodies became so vast, specific and detailed, as to make it impossible to satisfy the demand for regulation only by the Parliament. The complexity of the questions to be dealt with and the specificity of the matters necessitated that litigations should be conducted by specialised personnel. Towards the middle of the nineteenth century these two new needs led to the establishment of Administrative Tribunals, on the one hand, and on the other hand, to the widespread use of delegated power to the government with the aim of regulating many sectors of social life. The Administrative Tribunals were quasi-jurisdictional bodies and were devoid of all the typical powers of the judicial function. The rule of law developed in the sense that the public functions were attributed with Statutes and judicial control on the modalities of the exercise of power was entrusted to the courts33. They declared the invalidity of measures adopted by administrators via the traditional actions of common law when the exercised power exceeded the limits imposed by Statutes in accordance with the consolidated doctrine of ultra vires.

2.4.1

Controlling Administrative Power in English Juridical Thinking

This approach, that allowed the development of common law also in the relationships between citizens and public authorities did not however prevent the institution of many special judges and the subsequent rise of special rules. In the early years of the twentieth century English juridical thinking demonstrated its radical aversion towards the administrative law system that was developing in France34 and attempted to deal with all the problematics that emerged from the progressive increase in public functions, constantly connecting them to the principles and the remedies of common law.35 English citizens did not feel the need for administrative law, due to the fact that they could challenge administrative action by asserting a common law. It is an approach that stems from years of evolution founded on the prerogative of Parliament and its force in the defence of citizens’ rights. After a few years however clear and evident problems emerged in English jurists connected to the exercise of discretionary power that could not be resolved via common law.36 The question of the limitations of public interest, albeit already present in the public

33 34 35 36

J. Jennings, ‘Courts and Administrative Law – the Experience of English Housing Legislation’, Harv. Law Rev., Vol. 49, 1935-1936, 426. L. Hewart, The new dispotism, Benn, London 1929. For the reconstruction of the various evolution phases of English juridical thinking, refer to Chiti, 2009, 380. J.D.B. Mitchell, ‘L’absence d’un systeme de droit administratif au Royaume-Uni: ses causes et ses effects’, EDCE, n. 18, 1964, 211-225. Cane, 2011, 249 et seq.

34

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The Power of Principles

interest privilege that could be opposed by the Crown to prevent the exercise of access,37 had not however been dealt with a thorough elaboration. A theoretical approach for the new problematics related to the exercise of discretionary power and new principles to defend citizens’ rights when they clashed with general interest, was missing. The increase in public functions, the necessity to use specialised institutions,38 the expansion of the tasks due to affirmation of the Welfare State necessitated specific competencies that the judiciary did not possess.39 The increase, mostly indiscriminate, of delegated legislation led to the existence of an extremely high number of Statutory rules and orders with which progressively entire sectors of public administration and the rights and expectations of citizens were regulated. These rules were approved without an effective control by Parliament, due to the extensive discretionality conferred to the government. With regards to the orders adopted in execution of the delegated powers judicial control by ordinary courts were frequently not even admitted.40 From different viewpoints the persistent rejection of the institutions of administrative law permitted the expansion of privileged situations for public authorities in the English system, provoking effects that were the exact opposite to the principle of the rule of law. In other words English jurists, repudiating administrative law, determined in own country the same situation of special prerogatives and privileges to public powers that were believed to have been caused in France by administrative law.41 English juridical thinking had to overcome the well-known aversion of Dicey42 and organise a system of protection of subjective legal positions in relation to the indiscriminate increase in administrative functions. The needs expressed by administrative law had been badly interpreted and the aversion founded on the erroneous perception of the function attributed to this special branch of public law,43 seen as a mechanism to confer prerogatives, privileges and immunity to state officials rather than a system for the protection of the interests of citizens, had prevailed. The experience of the Administrative Tribunals, based on the model of independent authorities, originated to satisfy the needs to protect citizens in relation to the actions of public administrators that were not covered by the traditional remedies of common law.

37 38

39 40 41 42

43

Ferrari, 2009, 666. N. Lewis, ‘Reviewing Change in Government: New Public Management and Next Steps’, PublicLaw, 1993, 105; S. Cattaneo, ‘Agencies e regulation nel Regno Unito’, in S. Labriola (cur.), Le Autorita` indipendenti. Da fattori evolutivi ad elementi della transizione nel diritto pubblico italiano, Giuffrè, Milano 1999, 249. Harlow & Rawlings, 1997, 536; Ferrari, 1991, 601. Harlow & Rawlings, 1997, 562 et seq.; D’Alberti, 1992, 71. It is Chiti that reminds us of the force with which F. Cammeo in Italy made known this enormous paradox in English juridical thinking, in Chiti, 2009, 383. P. Craig, ‘Dicey: Unitary, Self-Correcting Democracy and Public Law’, LQR, n. 106, 1990, 105; Wade, 1982, 17 et seq. In contrast to Dicey, had already seen in the French experience a system for imposing control on the activities of public officials, rather than a model for the protection of privileges. P. Craig, ‘Public Law, Political Theory and Legal Theory’, Public Law, 2000, 211.

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Administrative Action and Procedures in Comparative Law

The evolution of the English Administrative Justice system is however characterised by a substantial difference: the affirmation of special judges was not the consequence of a branch of public law with different rules related to private law. But it was determined above all by the need for specialised training for judges in areas that normally were not studied by law graduates, as well as a greater flexibility in the criteria of rulings. There was the strong obligation of the stare decisis that characterised judgments.44 The resolution of litigations occurred with the application of common law, whose institutes were progressively adapted to the need of specialisation in the matter that was affirming itself in England too.45 The doctrine of ultra vires was born in a similar way to that of the defects of competence in the French system, in accordance with the principle of legality intended in a formal sense, without however averting the need for special rules.

2.4.2

Natural Justice and Fairness

The evolution of the administrative justice system subsequently led to the affirmation of a wide range of principles that still today regulate administrative procedure, even in the absence of a specific Statute and in line with the traditional way of interpreting relationships between citizens and public bodies in England. After a few years the Administrative Tribunals transformed into jurisdictional bodies albeit maintaining however the powers of the other courts. The general approach of the regulation of administrative activity in England is formed by case law.46 The reconstruction of the various phases of the procedure occurs via the traditional ultra vires doctrine. Administrative action exceeds the rule of law not only if it uses powers that it does not possess or that extend beyond those attributed but also if: a) it misinterprets the facts that frame the presuppositions of the final measures, b) it manifests excessive rigidity when respecting precedents, c) it abuses its discretionary power or d) if it exercises it without respecting the principles of reasonableness and proportionality. In its simplest form the ultra vires doctrine prevents a public power from adopting an act if it does not have the relative competence or attribution, that is to say the power conferred to it by Statute.47 Under this profile English law had to tackle the problems, just like every other country, related to the expansive capacity of the rules on competencies and attributions in the quest for a dividing line between implicit powers and exorbitant powers. In its most diffused acceptance the doctrine of ultra vires deals with the problematics similar to the classic symptomatic forms of the abuse of power with a particular refinement 44 45 46 47

Ferrari, 1991, 601. W. Wade, ‘Administrative Justice in Great Britain’, in Piras & Motzo (cur.), 1991, 169; P. Sales, ‘A comparison of the Principle of Legality and Section 3 of the Human Rights Act’, LQR, n. 125, 2009, 598. R. Stevens, The English Judges: Their Role in the Constitution, Hart Publishing, Oxford 2002, 2 et seq. Anisminic Ltd v. Foreign Compensation Commission [1969], 1 AC 147; Pepper v. Hart [1993], AC 493.

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The Power of Principles

in the theoretical elaboration.48 The mechanism with which the legal errors outlined by the judiciary reflect on the procedural rules, is immediately clear. There is the need to effectuate steps in procedures. First and foremost among these emerges the principle of natural justice, one of the cornerstones of common law and that became the primary rule regarding administrative procedure.49 The person who decides must not have a personal interest in the final decision. In accordance with the ultra vires doctrine, impartiality and correctness constitute the first guarantees for a valid decision. The elements that characterise the rules against bias were finely tuned in order to guarantee the neutrality of administrative measures.50 The right of every citizen to be heard before an authority adopts an unfavourable act against them, corresponds to natural justice.51 In fact in common law the characteristic of the enforceability of an administrative act that stems in a unilateral way from a public body, is non-existent. The institution of the hearing can be traced back to another fundamental aspect of the British experience where the regression of the rules of private law when the action is conducted by an administrative body rather than by a private citizen, has never been recorded.52 The characteristic of this experience regarding procedural participation is constituted by the absence of a formalistic approach.53 The necessity that the interested parties take part in the proceedings is analysed case by case, due to the fact that there are no rules that generally impose the obligation to communicate the start of a public action against the addressees. On this point, first the administrators and successively the courts evaluate the type of interests at stake, the procedural guarantees that they deem necessary and the relationship between the procedural obligations, in order to decide which rules are to be respected.54 In essence these rules originate to guide the authorities towards the correct exercise of their functions rather than as principles for controlling public power.55 It is in the conversion from natural justice into fairness that one understands the fundamental element that makes clear the prevalence of the substantial aspect in relation to the formal model of the proceed-

48 49 50 51 52 53 54

55

Craig, 2012, 14-16. Cane, 2011, 69-70. Dimes v. Grand Junction Canal Co Proprietors [1852], 3 H.L.C. 759 HL.; R. v. Rand [1866], L.R. 1 Q.B. 230; Williams, 2000, 45. Bagg’s Case [1615], 11 Co. Rep. 93 b; R. v. Chancellor of the University of Cambridge [1723] 1 Str. 557; Osgood v. Nelson [1872], L.R. HL 636; Fischer c Jackson [1891], 2 Ch. 824. Craig, 2012, 339. Ferrari, 1993, 429. Russel v. Duke of Norfolk [1949] 1 All E.R. 109 CA, 118. Recent orientations however highlight the need to review the principle procedural institutes in the light of the new values that were being affirmed. On the topic, P. Daly, ‘Administrative Law: A Values-Based Approach’, in J. Bell et al. (cur.) Public Law Adjudication in Common Law Systems: Process and Substance, Hart, Oxford 2015, 1-21. Chiti, 2009, 385.

37

Administrative Action and Procedures in Comparative Law ings.56 It is a characteristic of the British system that can be found also in the problematics related to the locus standi in the procedure.57

2.5

Rights and Privileges in the United States

The procedural rules in force in America stem from two fundamental elements. The first is constituted by the power bestowed to the principle of the due process of law stated in the XIV amendment of the Constitution, from whose evolution the majority of the rules related to adjudication depend. The second aspect, for which the American experience is better known, concerns the mechanism of interest representation which in this comparative review represents the most advanced model of participation in rulemaking.58 Both aspects are regulated by the Administrative Procedure Act of 1946, but their origins are different: by case law, in relation to the guarantee mechanisms with regards to the adjudication procedure and above all by Congress in relation to rulemaking. Adjudication corresponds to the most traditional administrative action aimed at producing its more or less cognisable effects on addressees. In this case an order is capable of influencing directly the legal position of the addressees.59 However the absence of enforceability of an administrative act, typical in the common law tradition prevented juridical thinking from focusing attention on the final measure.60 The American courts extended the majority of the guarantees of the due process of law to the administrative procedure. Even in the American experience the articulation in phases of proceedings originated with the aim of guaranteeing the right to a defence by the addressee of the final measure. However in the initial elaborations American courts’ decisions were very cautious in differentiating the treatment conferred to rights as opposed to privileges.61 In the initial phase the principle of the due process of law was applied only to rights that an administrative action could threaten. In the case of privileges instead the advantage position would arise only following the formal measure, while at the time of the administrative action the interested would have a different legal status of expectation of the right. This approach permitted, on the one hand, guaranteeing the principles in proceedings in which the already acquired rights would have been compromised but on the other hand it subtracted from

56 57 58 59 60 61

Ridge v. Baldwin [1964] AC 40.; HK (an infant), Re (1967) 2 Q.B. 617 QBD 630.; Sul tema M. Loughlin, ‘Procedural Fairness: A Study in Crisis in Administrative Law Theory’, U. Tor. L.J., n. 28, 1978, 215. Chiti, 2009, 395. S. Breyer et al., Administrative Law and Regulatory Policy, Aspen Publishers, New York 2002, 23. Chiti, 2009, 362. G. Bognetti, ‘I diritti fondamentali tra giudiziario e legislativo nell’ordinamento degli Stati Uniti’, Giur. Cost., n. 1, 1981, 1067; Mannori & Sordi, 2004, 503. Breyer et al., 2002, 21.

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The Power of Principles

the procedural rules all the cases in which there were no pre-existing rights. The range of privileges furthermore was viewed in a rather extensive sense, so much so that American courts included to it also the dismissal of state employees, who were not permitted to use procedural guarantees nor did they have the possibility to challenge the decision in a judicial review.62 Only the holders of rights could benefit from the guarantees of the due process of law.63 The approach that denotes the absence of concrete theoretical foundations on public law was surpassed in the successive phases of the evolution of American administrative law, when the amplification of the powers of the agencies made evident the necessity to safeguard not only rights but also subjective legal positions that could be considered as mere interests.64 However the strict link with the principles of the due process of law characterised the genesis but not the affirmation of the hearing, for different reasons. The direct derivation of the procedural guarantees from the constitutional system in fact eroded possible spaces for the exercise of legislative power by the federal States. This is the reason why the Supreme Court linked the various procedural principles to the rules of the APA rather than to the XIV amendment of the American Constitution, tending in this way to not excessively limit the autonomy of the States.65 But it is in the evolution of the hearing and in its application also in rulemaking that are to be found the principle characteristics of the American model.

2.5.1

The Genesis of Rights in Rulemaking

The development of American public law is well known in comparative law. The individualistic approach and the economic liberalism that characterised this legal tradition viewed the evolution of the public law disciplines as something to be wary of. Public action was to be limited as much as possible. In the liberalist theory public power should be neutral and permit the development of the economy and the market. The liberal State had thus found its most highest expression. It was not long however that also in the United States all the problematics linked to the advance of the Welfare State would emerge: for example the indiscriminate increase in taxation power, the need for a strong administrative apparatus to ensure the collection and redistribution of revenue, the regulation of work conditions.66 However the more influential American juridical thinking had already begun to 62 63 64 65 66

Cfr. S. Battini et al., ‘Il procedimento’, in Napolitano (cur.), 2007, 116. Pierce, 2002, 568. Goldberg v. Kelly, 397 U.S. 254, (Supr. Ct. 1970). Thus Ferrari, 1993, 432. G. Shepherd, ‘Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics’, NW. U. L. Rev., Vol. 90, 1995-1996, 1557; M.C. Stephenson, ‘Legislative Allocation of Delegated Power:

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Administrative Action and Procedures in Comparative Law criticise the importance that in the past had been attributed to property rights.67 The idea of the intangibility of private property was reduced.68 Confronted with this situation the Supreme Court tried to stem this phenomenon69 and posed resistance to the new set up. The amplification of intervention in various social and economic areas, previously neglected, had resulted in the continual interference by agencies in the rights and interests of citizens which in the past were left to the free market. Thus a series of functions and activities were produced that, on the one hand favoured many citizens, for example social and economic interventions, but that on the other hand had a negative effect, above all, on the market and free competition and going against the tendency that in the past years had characterised the American experience. In the institutional context founded on the principles of individual freedom and the free market, executive power had not been afforded particular attention, both in the drawing up of the constitutional text nor in American juridical thinking.70 The model, for the most part shaped around the strict separation of powers, had assigned the executive function to the President but a bureaucracy based on the French model, within which procedures, the division of competencies and the allocation of functions and responsibilities had never developed.71 For years the American jurists were radically opposed to the idea that the majority party could have its own administrative apparatus that would be able to govern via the legislation.72 Once having controlled legislative power the majority party would regulate the entire category of subordinate acts. From this perspective, the principle of strict legality was in contrast with the American idea of democracy, due to the fact that it could entail the absolutism of the majority.73

67

68 69

70 71 72

73

Uncertainty, Risk, and the Choice between Agencies and Courts’, Harvard Law Review, Vol. 119, n. 4, 2006, 103 et seq.; Mashaw, 2007, 1801-1829. The reference is to the well-known elaborations of R. Pound, expressed both in his ‘Liberty of Contract’, Yale law j., 1908, as well as in ‘Law in books al Law in action’, American law rew., 1910. For an attentive reconstruction of the evolution of the American approach on the topic refer to Chiti, 2009, 350 et seq. J.F. Dillon, ‘Property: Its Rights and Duties in our Legal and Social System’, American Law rew., Vol. 29, 1895, 162-172. The Pollock v. Farmer’s Trust Company 1876, 157 US 429 and Lochner v. New York, 1905, 195 U.S. 45 are historical rulings with which the Supreme Court tried to limit the expansion of public law power for taxation, in the first case, a public regulating of work relationships, in the second. They are two elements that in the traditional approach would have had a notable bearing on the American idea of property. Pierce, 2002, 9. D’Alberti, 1992, 9-25. A.M. Bickel, The Least Dangerous Branch. The Supreme Court at the Bar of Politics, Yale University Press, New York 1962. For the historical reconstruction of the doctrinal evolution J. Mashaw, ‘The American Model of Federal Administrative Law: Remembering the First 100 Years’, Geo. Wash. L. Rev., Vol. 78, 2010, 975-999. A. de Tocqueville, De la démocratie en Amerique, II (1840), Laffont, Paris 1986, 629 towards the idea that the despotism of the majority could be overcome only via the function of educating its citizens in democratic participation. On the influence incurred by American juridical thinking from the ideas of John Stuart Mill Cfr. G.F. Ferrari, ‘Il diritto comparato nella giuspubblicistica britannica dall’inizio dell’Ottocento alla prima guerra mondiale’, Diritto pubblico comparato europeo, n. 1, 2015, 45.

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The Power of Principles

When the first need for regulating sectors was felt, both the liberal legal tradition and the absence of a concrete administrative apparatus pushed for the institution of specific agencies with regulation functions. The juridical thinking of the time was divided.74 Landis saw in a government of technocrats the continuation of the ideas of traditional liberalism.75 Pound highlighted the risks that an excessive supremacy of the agencies would have determined the development of powers without control if contextually judicial action was not strengthened.76 Others opposed the idea that executive power was to be left to a government of technocrats with the sole guarantee provided by their professionality and they affirmed with vigour that administrative action should always be founded on the strict application of the rule of law. The renowned expansion of the powers of the agencies in the American experience represented instead a moment of regression of the rule of law in the traditional sense and the abandonment of the principle of legality, at least in its strict meaning.77 The attribution of powers to the agencies was founded on delegated power which Congress soon began to exercise without the typical guarantees of a legislative delegation, in the absence of criteria and principles, exercise times and successive control tools. The conferment of significant powers that would have an impact on the lives of American citizens came into being with a system of mandates devoid of indications and limitations. This approach was hastily validated by the Supreme Court.78 The agencies of the United States were born and developed outside the tight bonds that in other countries were represented by the principle of legality. Their developed went even beyond the institutional mechanisms pre-established for presidential control on the executive function. Up until the seventies a check system by the President on the contents of administrative activity was lacking, resulting in a paradoxical situation of democratic deficit in which both elected institutions, the President and the Congress, could not effectively direct the politics of the agencies: the former, due to the fact that he did not have at his disposal legal tools and the second because it had progressively delegated its own power.

74 75 76 77 78

L. Jaffe & A.N. Hand, ‘The Judicial Universe of Mr. Justice Frankfurter’, Harvard Law rew., Vol. 62, n. 3, 1949, 357-412. J. Landis, The Administrative Process, Yale University Press, New Haven 1938, 46. R. Pound, Administrative Law. Its Growth, Procedure and Significance, University of Pittsburgh Press, Pittsburg, 1941, 19. Stephenson, 2006, 1035. Ferrari, 1993, 423.

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2.5.2

Administrative Procedure Act and Due Process of Law

In the first courts’ decisions the constitutional guarantee of the due process of law regarded only adjudication procedures and excluded rulemaking. Without doubt the damage to constitutional rights could occur also via the general rules but this circumstance did not entail the obligation by public powers to gather and evaluate the observations of the interests groups that could have incurred disadvantages due to the administrative action. At the beginning of the last century there was the tendency to exclude the Fifth Amendment from the whole category of public acts. Courts’ decisions had to distinguish the typology of the investigation in relation to the acts, in the sense that the constitutional guarantee operated directly on those proceedings that could have harmed directly legal positions, already acquired and existent. The application of the due process of law to rulemaking proceedings did not have the same origin. Participation in rulemaking started with the development of the Administrative Procedure Act and represents the American way with which the problems connected to the increase in governmental functions in social, health and economic sectors were dealt with,79 devoid of a base of democratic legitimisation. The principles elaborated by case law were to prove to be not sufficient to orientate administrative action that became ever more complex and ever more invasive of individual freedom. However there was the need to set up adequate limits to the uncontrolled expansion of administrative powers via a general legislation on proceedings. In the presence of a courts’ decisions set up, that had already highlighted the importance of the due process of law for the protection of the interests in proceedings, it was thought that the guarantees of impartiality, participation, transparency and the duty to give reasons could together constitute the system to control rulemaking. The model exercised a certain interest at a theoretical level, due to the fact that it also applied to decision making the idea of freedom so deep-rooted in the American experience.80 There are many interests and rights that can be created, modified or extinguished via a decision that regards such delicate spheres as the social and economic sectors. The first need was hence that of permitting that within proceedings, the widest interest representation could exist, in order that all the interested parties could know and understand the objectives of the administrative action undertaken and contribute with their observations. The amplification of participation institution was thus the direct effect of the application of the principles of the due process of law also to subjective legal situations, individual, group and collective, qualifiable as interests. The APA extended to rulemaking the procedural guarantees that the Supreme Court had already identified as fundamental principles of adjudication. Administrative proceed-

79 80

Murphy, 2012, 681-704. Pierce, 2002, 12.

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The Power of Principles

ings were modelled first and foremost as an expression of a direct democracy detached from the electorate-Parliament-Government circuit. Interest representation was viewed as a surrogate form of the democratic deficit that characterised the American agencies, with the possibility, granted to any group, to intervene in the decision making process and to defend themselves successively with a judicial remedy, if the administration did not take into sufficient consideration their interests.81 In reality widespread participation in rulemaking had other origins too, often overlooked in comparative law studies. Even before one could imagine the opening to participation in rulemaking, two phenomena that notably conditioned the evolution of the entire system took place. The attribution of powers to the agencies, enacted by Congress without any rule, induced these agencies to equip themselves with internal regulations in order to organise their own activity.82 In many cases the investigations by the American agencies, in the absence of a strong bureaucratic apparatus, were rooted on collaboration with the groups interested in rulemaking, whose preparation and experience was utilised directly by the very same agencies.83 In other words rulemaking was formed from the start via the participation of groups on which would have fallen the effects of the relative function. It was a participation that permitted a contribution to the ongoing activity that was carried out both via the acquisition of information on the sector to be regulated, as well as with an indication of the precise interests of the individual groups that would be damaged by the administrative action. The federal administration did not assume the form of a hierarchical unitary structure nor did a sole centre of responsibility for executive action towards the Congress exist.84 The agencies were neutral and independent. Their executive function, in relation to the administration of specific sectorial interests, was believed to be efficient with a strong procedural connotation. There was no condition that could define the idea of the enforceable nature of administrative acts. Two typologies of procedure were developed, one formal and one informal, distinct for adjudication85 and rulemaking.86 In the first case the formal model includes the duty by the agencies to give adequate advance notice to interested parties regarding the possibility of resorting to a semi-contentious procedure, on the typology of authority that will act, the factual and legal questions relating to the proceedings and naturally all the information necessary to participate in the hearing.87 The citizen can put forward observations, 81 82 83 84 85 86 87

Stewart, 1975, 1699. A.B. Morrison, ‘Administrative Agencies are Just Like Legislatures and Courts – Except When They’re Not’, Admin. L. Rev., Vol. 59, 2007, 79-120. Ibidem. Guggenheimer, 1970, 116. Sec. 554. Sec. 553. Sec. 554, b.

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both in written and oral form, and documents. The final measure must be motivated with an indication of the prerequisites, both factual and legal, on which it is founded, in order to be able to trace the logic behind the procedure followed. The informal procedure instead is not governed by particular rules but the agencies are still bound to expressly motivate the rejection of observations and guarantee interest representation, applying in essence the courts’ decisions. For rulemaking the Administrative Procedure Act governs both procedures in view of the capacity of the rules to impose duties with the same force as the law and in the absence of principles developed by case law for this specific function. The American model of interests representation presents particular characteristics above all in relation to rulemaking. Instead, with regards to adjudication, once the distinction between rights and privileges was overcome, the same principles by now universally accepted, were affirmed. However the distinction between adjudication and rulemaking remains unclear.

2.6

Administrative Power and Procedural Rules in Germany

The theoretical approach that had prevailed in Austria led by the Viennese School differed from the ideas of the German judiciary, led by Otto Mayer and Laband that saw only in the law the limit and boundaries of public powers.88 The procedure did not assume in itself a particular importance in relation to an administrative act that incorporated an executive nature, an expression of administrative power.89 This strong connotation of the German experience left in the background the symmetry between a trial and the phases of administrative procedure and orientated the genesis and the development of procedural rules in a partially different manner to the approach that prevailed in Austria in 1925. In Germany the first traces of a focus on the regulating of proceedings date back to the regional administrative system for the Thuringia, dated 10 June 1926. However there was to be an intense debate prior to approval of the 1976 law, including even the prospect that administrative action would be enclosed in the tight meshes of the procedure.90 The German Executive was not neutral like a judge and according to numerous authors had to defend its tasks and its responsibilities. This circumstance entailed that the question of the proce-

88

89 90

O. Mayer, Deutsches Verwaltugrecht, Vol. I, Duncker & Humblot, Leipzig 1895, Para. 5; P. Laband, Das Staatsrecht des deutschen Reiches, I, Tübingen, 1911, 57 et seq. On the topic A. von Bogdandy, ‘La science juridique dans l’espace juridique européen, une réflexion à partir de l’exemple allemande’, Recueil Dalloz, 2011, 2816-2822 and P. Ridola, Stato e Costituzione in Germania, Giappichelli, Torino 2016, 1-26. P. Badura, para. 41, ‘La decisione’, in A. Masucci (cur.), La codificazione del procedimento amministrativo nella Repubblica federale di Germania, Quaderni Formez n. 2, 1979, 318. W. Schmitt Glaeser, ‘Il procedimento amministrativo e la sua legge. Un’osservazione introduttiva’, in Masucci, 1979, 421-423.

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dure could not be dealt with the same approach of a trial, which is instead founded on the principle of the neutrality of the judiciary. In other words alongside some procedural rules there was the necessity to regulate institutions and principles of general administrative law and, in particular, some specific aspects of administrative acts. It was only some years earlier that a system of judicial remedy articulated in three degrees of judgement had been established in Germany and from a general viewpoint, it did not appear urgent nor indispensable to envisage rights to defence for citizens also in the procedural phases.91 The rules on procedure in Germany were for the most part conditioned also by the federal structure of the country.92 The Constitution did not permit the establishment of a general provision to be applied to all the public authorities, both for the Bund as well as the Länder. The central dispositions could regulate the administrative action conducted by the federal bodies or the authorities of the Länder only for activities carried out in the execution of federal law. The application of the federal legislation was in fact limited to the cases in which the Länder carried out an administrative function that was delegated from the centre or executed federal rules under the control of the Bund, but in its own competence or when decisions related to administrative appeals. In the remainder of cases, relating to the executive function of rules approved by the Länder, the internal administrators would apply their own procedural rules, where they existed. In the absence of a general law the need to guarantee joint participation in the regulating by the Bund and Länder would have required a variety of legislative provisions, due to the fact that the model of the division of competencies established by the Constitution would have prevented the right to a defence in administrative proceedings to be regulated with a federal regulation. A federal law thus appeared also useful to meet legal certainty in order to prevent that administrative action was to be regulated by fragmentary rules, to be found in the individual sectorial and internal provisions of the respective Länder. The German juridical thinking clearly expressed this approach in the congress that took place in Munich in 1960.93 That is to say that the regulation of the procedure should be unitary.

2.6.1

The Crisis of Authority and the Centrality of an Administrative Act

In this experience the relationship between the principle of legality and an administrative act constitutes the concept around which the main theoretical elaborations rotate. When public law doctrine began to interest itself in the procedural phases, the diverse ideas for and against the regulating of administrative action delved into arguments more commonly 91 92 93

Cfr. Ferrari, 1991, 593. C.A. Bettermann, ‘Das Verwaltungsverfahren’, Vereinigung der Deutschen Staatsrechtslehrer, Vol. 17, 1959, 118. P. Badura, ‘Il procedimento amministrativo’, in Masucci (cur.), 1979, 265; C.H. Ule, ‘Die Kodifizierung des Verwaltungsverfahrensrechts’, Deutsche Verwaltungsgeschichte, Vol. 5, 1987, 1162-1170.

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Administrative Action and Procedures in Comparative Law dealt within the French, Italian and Spanish experiences.94 Viewed from the perspective of the addressees of the administrative acts, the principle of legality would have permitted an understanding of decisions making and guaranteed a greater protection of their legal position. Participation in proceedings, if rendered obligatory, would have led to a more balanced final measure which could take into consideration also the interests of the addressee.95 The concept of the proceedings as a guarantee for attaining correct administrative decisions that were as transparent and rational as possible became a widely shared opinion and allowed balancing the various interests implicated and represented a strengthening of the protection of subjective legal positions. Those who highlighted the risks of a slowing down of administrative action or a loss of the role of the state administration understood that, in reality, the major preoccupations consisted in the fact that the new legislative Act posed a crisis for the logic of authority that up until that point had distinguished German administrative law. Freedom of information, participation, revision mechanisms and the re-opening of proceedings would have inserted into the organisation, a different idea of the citizens – administration relationship.96 In the German juridical thinking however prevailed the idea that the rules on proceedings were to be framed in the evolution that was still characterising the passage from a Liberal State to a Welfare State. The protection of the person and the enhancement of services became elements for the consolidation of the Welfare State, in the name of which the re-thinking of the categories of administrative law would be justified. In essence the transformation of the role and the functions of the state administration brought with it a loss of its authority. This theoretical approach established roots in addition on the ideas of Forsthoff,97 among the major exponents of the German juridical culture of the time and circulated with its own success due to the significant function that the new rules on proceedings would have assumed in the transformation process of the modern state.98 But if it is true that the connection between the changes in the administrative law and the dynamics of the Welfare State provided that theoretical push towards laws on procedures, it is not possible to likewise sustain that administrative law was integrally based on this idea. It is on the centrality of the administrative act and in virtue of the extraordinary influence exercised by the theories of Mayer that the majority of the doctrinal debate took root. With an evident glance at the

94

95 96 97 98

With particular reference to the relationship between procedure and the efficiency of administrative action C. Degenhart, ‘Das Verwaltungsverfahren zwischen Verwaltungseffizienz und Recthsschutzauftrag’, DVBl., 1982, 872-881. J. Held, Der Grundrechtsbezug des Verwaltungsverfahrens, Duncker & Humblot, Berlino 1984, 55 et seq. See Ridola, 2016, 16. Expressed above all in the famous text Die Verwaltung als Leistungsträger del 1928. F. Mayer, ‘Neuzeitliche Entiwicklung der öffentlicheu Verwaltung’, in M. Morstein (cur.), Eine ein führende Darstellung, Duncker & Humblot Gmbh, Berlin 1965, 15 et seq.

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data stemming from the Anglo-American experience, Bachof99 and Bettermann,100 followed by others, attempted to give a greater consistency to the legal relationship that was activated between citizens and public authorities, rather that continuing to see the administrative act as the linchpin on which all the procedural institutes should found. Instead the traditional approach prevailed based on the idea that legislative provisions constitute the major source of the legitimisation of public authorities. In the definition of the proceedings that contains the legislative Act, all the internal phases were excluded from the field of application and considered devoid of external significance. The forms of the administrative action are identified in the administrative act and in the public law contract. These two aspects of the regulation of proceedings excluded administrative action that was aimed at programming, establishing directives, providing services, organising statutes, regulations, and all those functions for which the use of the contractual tool or an administrative act are little suited.101

2.6.2

Proceedings and Legitimatisation of Power

Among the various objectives that can be attributed to the administrative procedure, German jurists underlined however a further aspect that although present in other forms in various countries, in Germany was a characterising element of the decision making. This refers to the idea that the procedure constitutes a means for consolidating consensus on public institutions. In essence German juridical thinking sustained that the reenforcement of procedural guarantees via participation and transparency, if on the one hand offered greater possibilities to protect subjective legal positions, on the other hand it would increase the legitimatisation of administrative action that gained consensus via the verification of the correctness in its execution.102 The rules on the procedure were closely connected to the principle of legality and respect of the legality of the procedure became an element of progressive legitimateness of the administrative action that would create greater consensus the more it proved to be correct, legal, transparent and efficacious.103 It is thus that the law on German procedure went beyond the set up provided in Austria and Switzerland. Not only did it regulate the various phases of the procedure but it also 99

100 101 102 103

O. Bachof, ‘Über einige Entwicklungstendenzen in gegenwärtigen deutschen Verwaltungsrecht’, in H. Külz & R. Naumann (cur.), Staatsbürger und Staatgewalt, Verwaltungsrecht und Verwaltungsrichtsbarkeit, 1963, 3-18. Bettermann, relation to the Vienna congress, VVDStRL 17, 122 reported by Schmitt Glaeser, 1979, 420. Schmitt Glaeser, 1979, 416. P. Wahl, ‘Das Verwaltungsverfahren zwishen Verwaltungseffizienz und Rechtsschutzauftrag Wahl’, VVDStRL, n. 41/983, 157. E. Schmidt-Aβmann, ‘Verwaltungslegitimation als Rechtsbegriff’, Archiv des öff. Reechts, n. 116, 1991, 371 et seq.

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disciplined many aspects of substantial administrative law. The rules on the time limitations for revocation and the re-examination of issued acts, in addition to the rules on planning procedures, public law contracts, elements of administrative acts and their validity and efficacy, were prescribed into the 1976 law. The strength of the subjective legal positions of citizens was re-enforced with the application of the principle of participation. The investigation expanded taking into consideration the interest of citizens that had the possibility to ask for a re-examination of the decision or a re-opening of proceedings, whenever they believed that their interests were not sufficiently taken into consideration. The legislative Act reinforced the application of the principle of legitimate expectations, already elaborated by case law, thus identifying the hypotheses and mechanisms by which it was possible to proceed with the withdrawal of an already issued provision. Forms of participation were provided for also with regards to planning procedures, anticipating the problematics that would widely arise in Europe, above all in relation to the government of the territory and the environment. The crisis of the concept of authority clearly emerged from the forms of consensual action that characterised the regulating of public contracts. The rules however were based on a tradition that was supported by the rigid theorisation regarding an administrative act which left little space for alternative models of administrative action. The first forms of rationalisation and simplification were set up which dealt with the provisions on the collaboration between offices and the functioning of collegial bodies but the problems were dealt with a scant attention to functional profiles. Another characteristic consists in the prevision of two procedural models, one formal and the other informal, a typical distinction of the American Administrative Procedure Act. There were also special rules that regarded the procedures for the formation of general urbanistic plans. The criterion of informality of the procedure constituted the general trend of German law. Here the influence is clearly evident of that part of juridical thinking that had expressed great perplexity on the fact that an excessive structuring of the procedure could have hindered administrative action, in all cases in which it did not affect subjective legal positions or the exercise of discretionary power. The procedural rules were diverse, depending on the type of procedure and the relative legislative discipline. In general, the informal model is preferred.104 The formal model found its application only if specific rules required the application of this different type of proceedings. In turn, the formal model envisaged in the general law could be integrated and modified by special regulations for specific matters, as occurred in the sector of ablatory proceedings that envisages a different procedure to be followed. Different hypotheses hence can be noted in sectorial regulations. The formal model prolonged the investigation phase starting from the guarantees provided by the participation of the interested parties. In this case participation was not 104 Cfr. Art. 63, I cap., VwVfG.

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limited to the holders of interests that can be modified by the final measure. There does not exist in other terms the condition of the immediate interference of the decision in relation to the interests of those who request to participate. One can note the different organisation of the investigation phase. When the authority follows the formal procedure participation becomes an indispensable element of administrative action and it is guaranteed without any filter due to the immediate and direct bearing of the administrative action on the legal positions. Normally participation permits an oral debate included in the relative report with the possibility of hearing the depositions of experts and witnesses.105 The principle of legality however assumed a substantial force, made evident in the rules that did not permit the annulment of an administrative act if the legal flaws found had no bearing on the content of the final decision. The needs of the Welfare State went beyond the principle of strict legality.

2.7

The Composite System in Italy

Italy, in contrast to France, up until the beginning of the twentieth century, did not have a strong bureaucratic structure nor had it hypothesised that the relationship between citizens and public powers should be founded on a special law counter-posed to private law. With the 1865 law of abolition of administrative litigation the Italian experience had maintained the unique jurisdiction of an ordinary judge to whom the power of the disapplication of administrative acts was attributed whenever they had a bearing on the rights. This scheme would change over the course of a few years simultaneously with the enhancement of state functions and the growth of administrative apparatuses. The institution of the first jurisdictional section of the Council of State in 1889 represented the turning point in favour of a dualistic system.106 However, compared with the French experience, the path undertaken by the Italian system towards the development of the institutions of administrative law was guided for the most part by juridical thinking that stimulated and influenced the administrative judiciary, which had only just been established.107 Vittorio Emanuele Orlando began the reconstruction of public law via a juridical method identifying a special space for the law that was detached from politics, the economy and the social sciences.108 Thus a complex theoretical organisation of the institutes of public law was begun with the major exponents, among which Santi Romano, Ranelletti 105 Cfr. Arts. 65-67, I cap., VwVfG. 106 Mannori & Sordi, 2004, 343 et seq. 107 On the role of the Council of State in the first phase, D’Alberti, 1992, 129 et seq.; G. Melis, ‘Il Consiglio di Stato’, in L. Violante (cur.), Storia d’Italia. Annali. 14. Legge, Diritto, Giustizia, Einaudi, Torino 1998, 821843. 108 V. E. Orlando, ‘Prefazione’, in Idem (cur.), Primo trattato completo di diritto amministrativo italiano, Vol. I, Società Editrice Libraria, Milano 1900, XI.

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Administrative Action and Procedures in Comparative Law and Cammeo.109 From their works emerge analyses that express the tendency of the pureness of the theoretical elaborations in which historical data and the social characteristics of the country had to stay in the background, in relation to the needs expressed by the pure doctrine of the law.110 Under the clear influence of the theories formulated by Otto Mayer in Germany, Italian jurists established the majority of the rules of administrative law around the nature of the act that represented the direct expression of the authorativity of the State and the essential element on which to identify the relationship between citizens and authorities. With regards to the element of administrative discretion highlighted by juridical thinking, first and foremost, rights and legitimate interests were differentiated in Italy, followed by the theory of the degradation of the rights due to the administrative action. On this distinction the fundamental criteria for the division of jurisdiction between an ordinary and an administrative judge, was to be based. Thus emerged from Italian juridical thinking the theoretical organisation that would entail in the successive years the progressive softening of the strength of subjective rights. This public law doctrine, founded on a significant ideological connotation, influenced the courts and the legislative innovations. The administrative process was designed for challenging administrative measures within the pre-established deadline of 60 days and with the establishment of the forfeiture of the elements on which to found an appeal. In contrast to the French system, that permitted an administrative judge to eliminate the legal defects of a contested act ex officio,111 in Italy administrative jurisdiction was not viewed as a function for respecting the objective legitimacy of administrative acts but rather it was aimed at safeguarding a legitimate interest that characterised the subjective legal positions in the presence of the administrative action.112 Citizens hence had to contest a harmful provision to their legitimate interests specifying all the defects of the contested act or risk forfeiture of this right to act within a tight time limit. The authority instead protecting public interest could annul the administrative acts without any time limit. It was the triumph of the strength of the administrative act and the authoritarian idea that characterised the relationship between citizens and public powers, integrated by the widespread irresponsibility of public officials. However this theoretical setting soon manifested all of its limits

109 G. Cianferotti, Il pensiero di Vittorio Emanuele Orlando e la giuspubblicistica italiana tra Ottocento e Novecento, Giuffrè, Milano 1980, 176 et seq. 110 Ivi, 134; E. Gustapane, ‘I manuali di diritto amministrativo (1928-1940)’, in AA.VV., Il diritto amministrativo negli anni Trenta (estratto dalla rivista Mat. stor. cultura giur.), Il Mulino, Bologna 1992, 62; M.S. Giannini, ‘Federico Cammeo il grande’, Quad. fior. stor., n. 22, 1993, 11. 111 M. Nigro, ‘Procedimento amministrativo e tutela giurisdizionale contro la pubblica amministrazione’, Riv. Proc. Civ., 1980, 252 et seq. 112 Sandulli, 1989, 107-114.

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when it began to clash with the needs of commercial enterprises,113 so much so that various rules were regulated by private law, such as urbanistic conventions or contract concessions. Even in the last two decades of the twentieth century the addressees of administrative measures saw the downgrading of their own rights to legitimate interests within spheres in which administrative action was substantially supported by private law.114 In the 1920s the French Conseil d’État began to elaborate the first guiding principles of administrative action, reconstructed via the symbolic figures of abuse of power. In its initial elaborations the Italian administrative judiciary, taking its inspiration from the law of the Conseil d’État, highlighted the illegitimacy of the abuse of the power connected to the function and annulled the decisions adopted with an end diverse from that attributed by law. Administrative action had to therefore follow the rules that gave it the power to achieve that specific purpose.115 It was again the Council of State that obliged authorities to not make the mistake of misrepresenting the facts, contradict their own previous acts, adopt provisions in which there was a contradiction between the content of the decision and the motivation, up to fixing the duty to give reasons. In the following years the incisiveness and the role of an administrative judge began to grow and the first declarations of the Council of State undertook investigations into the correct use of discretionary power. Public authorities had to verify the completeness of the investigation carried out, if the interests concerned were correctly taken into consideration or if their action appeared irrational.116 Thanks to the intense doctrinal production of Massimo Severo Giannini, the moment in which a public authority defined public interest became the occasion for an attentive comparison also of the interests of citizens subjected to the administrative action.117 Discretionality changed its aspect and was no longer characterised by the authoritarian vision of a public body that could decide, in a unilateral way, in which direction administrative action should be orientated. Discretionality became the moment for comparing private and public interests and an administrative judge could act to verify the completeness of the investigations undertaken. 113 D’Alberti illustrates that the needs expressed by private companies questioned the idea of the unilateral direction of administrative action and the capacity of administrative acts to compress the rights of the administrated. The total subjection of the interests of the companies to administrative discretionality in fact would have impeded the economic development of many areas of the Country, due to the fact that the entrepreneurial world would not have been encouraged to invest its capital in the absence of greater certainties that could stem instead from the rules of private law. It is based on this necessity that, even before the first worldwide conflict, many sectors regulated by administrative law only a few years earlier would be returned to private law. Cfr. D’Alberti, 1992, 131. 114 Ivi, 126. 115 The circumstance that the first elaborations on administrative procedure would derive from the new needs expressed by judicial control clearly emerges from the writings of O. Ranelletti & A. Amorth, ‘Procedimento amministrativo’, Nuovo dig. it, Vol. X, Utet, Torino 1939, 527 et seq. 116 G. Melis, ‘Origine e storia del Consiglio di Stato italiano’, in G. Paleologo (cur.), I Consigli di Stato di Francia e Italia, Giuffrè, Milano 1998, 71 et seq. 117 M.S. Giannini, Scritti, vol. I, Giuffrè, Milano 2000.

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In this evolution the legal flaw of abuse of power, directed at verifying the legitimacy of an administrative act, became a defect of the function.118 It was the administrative action undertaken that was at default and the final act represented only this fact externally. The administrative courts investigated more within the procedure that led to the adoption of the final measure. They focused in particular on the investigation phase of proceedings, on the complete acquisition of the elements for the decision and on the consideration and the ponderation of the interests at stake.

2.7.1

The Theoretical Setting

Italy followed in part the French approach. However the power of an administrative judge was more tenuous and the courts’ decisions were not sufficient to elaborate a systematic body of principles on administrative action, that continued for many years to rotate around an administrative act.119 The advent of the Welfare State, the expansion of public functions and the exercise of discretionary power in economic sectors, led immediately to a crisis in the relationship between law and administrative acts. The procedure was singled out as the moment of confrontation between public and private interests involved in the final measure.120 Italian juridical thinking highlighted that the procedural phase constituted the path to permit administrative action to be balanced and guarantee the correct evaluation of the interests at stake.121 Little by little the control on the way with which a public body conferred a specific content of the final measure became ever more penetrating. Discretionality was analysed via the modalities of its exercise, the logical coherence between the presumed facts and the measure adopted. Cammeo was the first to raise the question of the necessity to confer an external importance to the sequence of acts and operations that constituted the prerequisite of an administrative act122 and that would have influenced its validity.123 The formal concept,

118 F. Benvenuti, ‘L’eccesso di potere amministrativo come vizio della funzione’, Rass. dir. pubbl., n. 1, 1950, 1 et seq. 119 S. Treves, La presunzione di legittimità` degli atti amministrativi, Cedam, Padova 1936; A.M. Sandulli, Il procedimento amministrativo, Giuffrè, Milano 1940; R. Lucifredi, L’atto amministrativo nei suoi elementi accidentali, Giuffrè, Milano 1941; M.S. Giannini, ‘L’interpretazione dell’atto amministrativo e la teoria giuridica generale dell’interpretazione’, in Idem, Scritti, Giuffrè, Milano 2000, 246. 120 D. Donati, ‘Atto complesso, autorizzazione, approvazione’, Arch. giur., Vol. XII, n. 1, 1903, 3 et seq.; E. Forti, ‘Atto e procedimento amministrativo’, Studi di Diritto Pubblico, 1937, 455 et seq. 121 F. Benvenuti, ‘Funzione amministrativa, procedimento, processo’, Riv. trim. dir. pubbl., n. 1, 1952, 118 et seq.; Mannori & Sordi, 2004, 343 et seq. 122 Cammeo, in the Corso di diritto amministrativo of 1914, began to theories the effects that could exist between the formation process of administrative will and the final measure. 123 F. Cammeo, Corso di diritto amministrativo, Cedam, Padova 1914.

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that identifies the procedure as a sequence of acts organised for the adoption of the final provision, was affirmed in Italy by Sandulli124 and successively Virga.125 For some authors the procedure served to protect citizens’ interests, aimed at contrasting the adoption of unilateral acts that would have had a bearing with an enforceability on their rights and interests. Attention on the investigation phase, exalted in the initial theorisations, shifted towards the protection of rights when the guarantees of judicial action were gradually reinforced. Proceedings, in a similar way to trials, thus became the principle place for the evaluation of the interests involved, as well as the prerequisite for a greater judicial control.126 Case law constituted the principle elements many years before the general law of 1990 was adopted, via the identification of symptomatic figures of abuse of power. Administrative courts annulled acts that were emanated devoid of a motivation or where a contradictory nature between the disposition and the motivation emerged.127 Some rules were also extrapolated from pre-existing laws. From the legislative Act on the civil service derives the procedure of the formation of silence and the elements to follow in general in sanctioning proceedings. The constitutional principles provided further normative reference points. Following on from the Constitution in 1948 the procedure was singled out by juridical thinking as the best element in which it was possible to realise the correct evaluation of the interests involved, be they public or private. Decision making ensured that administrative action was undertaken in accordance with the principles of impartiality and good performance, in compliance with Article 97 of the Constitution. However the regulations to guarantee participation in administrative proceedings, access to acts and documents and the logical organisation of the various phases of proceedings, were lacking. At the end of the seventies France instead had integrated via legislation some elements of administrative action that were not sufficiently clear from the law of the Conseil d’État, with regards to the duty to give reasons, access, and participation. Germany and Austria had already in the past regulated the phases of administrative action and guaranteed the right to access information and participation in their jurisdictions. For

124 In 1940 Sandulli wrote his monography solely dedicated to administrative procedure that was broken down into phases within which there are specific acts whose lacking or flaws produce effects on the validity of the final measures. Thus begins the formal theory of administrative procedure as a sequence of acts that produces important consequences on the legitimacy of administrative action. G. Morbidelli, ‘Aldo M. Sandulli e il suo contributo alla certezza del diritto e alla unificazione nazionale’, www.federalismi.it, n. 24, 2010. 125 P. Virga, Il procedimento amministrativo, Giuffrè, Milano 1972. 126 Benvenuti, 1952, 126 et seq.; M. Ramajoli, ‘Lo statuto del provvedimento amministrativo a vent’anni dall’approvazione della legge n. 241/90, ovvero del nesso di strumentalità triangolare tra procedimento, atto e processo’, Dir. proc. amm., n. 2, 2010, 459 et seq. 127 M.S. Giannini, ‘Discorso generale sulla giustizia amministrativa’, Riv. Dir. Proc., n. 4, 1963, 523 et seq.; P. D’Amelio, ‘La formazione giurisprudenziale del diritto amministrativo’, Foro ammin., n. 2, 1969, 118 et seq.

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Italy, the year 1990 proved to be a turning point in the relationship between citizens and public administrations. Constantly the administrative courts in the period preceding law 241/90, proved to be mainly conservative in comparison to the pressures exercised by the more attentive Italian jurists. The courts denied the existence of the principle of participation in the investigation phases of the proceedings.128 Even the Constitutional Court admitted participation only in cases expressly envisaged by special law,129 which was possible in disciplinary proceedings, in the revocation of concessions and ablatory proceedings. The manuals of administrative law more attentive to procedural phases distinguished normal proceedings from concession, ablatory, penalty proceedings and others to underline the importance of the participation that characterised only some typologies of measures that were particularly damaging to subjective legal positions.130 General participation in proceedings was the result of a legislative choice expressly aimed at overturning the logic of authority that in the antecedent years had characterised the relationship between citizens and public power.131 The Supreme Court of Cassation, with its judgment n. 500/1999, was to put an end to the indiscriminate irresponsibility of authorities decreed in past years for damage to legitimate interests.132

2.7.2

Evolution of Principles

The Italian experience that derived in the aftermath of law n. 241/90 hence constituted the symbiosis of all the three components, legislation, juridical thinking and courts’ decisions. The new legislative provisions attempted to balance the contents of rights of participation in proceedings with the need to not excessively aggravate the times of the administrative action, which was orientated towards efficacy, maintaining low costs and efficiency. Law n. 241/90 established the duty of public powers to conclude procedures within the time limits that were to be established by each authority, the application of a maximum period of 30 days in the event that such a specific prevision was lacking and the duty to communicate the start of proceedings to the addressees in which they must be informed of the matter in question, the person in charge and the offices where they could turn to for information. Participation permitted the possibility to access administrative acts, make copies and present observations. The form of the final decision opened up to contracting modules, in the institutions of the substitute and integrative agreements to the final deci-

128 Cons. Stato, sec. V, 6 July 1976, n. 524, Istituto autonomo case popolari di Potenza (Avv. Giuliani) c. Min. lavori pubblici (Avv. dello Stato Pierantozzi), Foro it., Vol. 100, 1977, 249/250-253/254. 129 Corte costituzionale, 20 March 1978, n. 23, www.giurcost.org/decisioni/1978/0023s-78.html. 130 Giannini, 1981; Morbidelli, 1993, 1156-1183. 131 Art. 3 law n. 241/90. 132 On the topic D. Sorace, ‘La responsabilità risarcitoria delle pubbliche amministrazioni per lesione di interessi legittimi dopo 10 anni’, Dir. Amm., n. 2, 2009, 379 et seq.

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sion.133 Various rules permitted simplifying administrative action, removing delaying obstacles due to the complexity of investigations when other authorities were involved. The conference of services, in the twin investigative and decisive role, established a generalised mechanism to speed up the adoption of final acts134 and make possible the acquisition in a unique contest of the various interests protected by the public bodies involved in proceedings. Others rules included silent consent that permitted overcoming bureaucratic slowness when there was the necessity to obtain the opinion of another authority.135 Hence in this way many activities of simple certification and counselling, were simplified. The mechanisms of the notification of the start of activities reduced the cases in which the exercise of private entrepreneurial activity was conditioned by the prior issuance of an authorisation. The 1990 Law subsequently disciplined the institution of tacit approval that, after an initial form in which it was considered applicable only in the event in which it was expressly envisaged by specific regulations, in 2005 became the general and ordinary effect to be conferred to the inert behaviour of public administrators, except in the case where contrary rules existed. Italy today has inverted the rule of silent – non-performance, for which administrative inertia was considered as a mere refusal to act, that is transformed into tacit approval. With law 241/90 the duty to give reasons, already elaborated by Administrative courts under the profile of the abuse of power, became generalised to any typology of administrative measure. Administrators were obliged to indicate the facts and the legal reasoning underpinning the adopted acts. Thus, if the Italian system in 1990 conferred to authorities legal tools to speed up and simplify administrative proceedings and bound them to motivate all adopted provisions, it appeared more prudent with regards to the regulation of transparency and participation. The freedom of information right was not thought of as a model of general openness of administrative action. Quite the contrary. The right to know was allowed to only those who were able to demonstrate a specific and qualified interest in proceedings. Although legitimate interest positions should not coincide with those deemed necessary for the exercise of the right to know, the Italian authorities tended to limit its applicative possibilities. An intense debate ignited in an attempt to clarify the legal framework of the institution, in terms of subjective rights or legitimate interests.136 The right referred to acts and documents but excluded preparatory acts. The 1990 law conferred ample possibilities to the administrators to table the right to access if its exercise could constitute an obstacle to the execution of administrative action. 133 134 135 136

Arts. 11 and 15 law n. 241/90. Art. 14 law n. 241/90. Art. 16 law n. 241/90. On the topic M. Occhiena, ‘I principi di pubblicità e trasparenza’, in M. Renna & F. Saitta (cur.), Studi sui principi di diritto amministrativo, Giuffrè, Milano 2012, 141-149.

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Participation allowed the right to a defence by the addressee of the final measure and its contribution in the procedural investigation. But it presented itself as being extremely wanting with regards to the adoption of general acts.137 Participatory guarantees were excluded not only for tax-related proceedings but also in relation to normative and general administrative acts and planning and programming procedures. The possibility of the collaborative contribution of citizens for proceedings that already in France and the United Kingdom permitted a wide democratic participation via preventive public investigations, was excluded. On numerous occasions the 1990 law was to be modified in its essential aspects, ranging from the institutions related to administrative inertia, proceeding times, judicial actions against administrative inertia, to the conference of services,138 up to the amplification of procedural silence with Law n. 124/2015. Some modifications recognised the courts’ decisions that progressively reshaped the force of the principle of legality abandoning the formalist set up that had characterised the first years of application. The recent rules, clearly inspired by the German system, impeded the annulment of an administrative act when flaws did not appear to influence its content. The Law is continually reinforcing controls on the completeness of the investigations undertaken by authorities and on the cogency of the reasoning carried out. The shortcomings manifested by the regulation with regards to access rights were in part bridged by the approval of the legislative decree n. 33/2013 that regulated the new institute of civic access, which was subsequently followed by the legislative decree n. 97/2106 that strengthened some of the previous approaches.139 Law 124/2015 further provided for simplification of procedures by conferring delegated legislative powers to introduce new mechanisms for speeding up procedures,140 further reductions in procedural times141 and the strengthening of the use of IT systems.142 Other rules concerned the notification of segnalazione certificata di inizio attività143 that permitted an enterprise to start their own business immediately. A public body has the power to stop the initiative within a set deadline if it considers it unlawful. Further innovations regarded silence assent,144 as well as providing for the reorganisation of state administration, management, public work discipline, public shareholdings of public administrations145 and public services of general economic interest. 137 C. Colapietro, ‘Politica e amministrazione: riflessioni a margine di un rapporto controverso’, Studi parlamentari e di politica costituzionale, n. 171-172, 2011, 147-148. 138 On the topic F. Merusi, ‘Per il ventennale della legge sul procedimento amministrativo’, Riv. trim. dir. pubbl., n. 4, 2010, 939 et seq. 139 On the innovations produced and the relative problems refer to chap. 3, para. 4.3. 140 D.P.R. 12 September 2016, n. 194. 141 D. Lgs 30 June 2016, n. 127. 142 D. Lgs 26 August 2016, n. 179. 143 D. Lgs 30 June 2016, n. 126. 144 D. Lgs 25 November 2016, n. 222. 145 D. Lgs 19 August 2016, n. 175.

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2.8

The Power of Principles

The Spanish Experience

The courts’ decisions that was recorded in France did not have the same intensity in the Spanish legal system, where the regulation of the procedures took place by means of rather complex legislative interventions. The prevailing juridical thinking never saw in case law a strong legal source of the administrative law.146 For several years the theoretical debate registered two diverse approaches; a conservative model, on the one hand, that did not accept the idea that an autonomous and independent judge could condition administrative action and consequently favoured the enhancement of controls within an authority. In contrast the other approach tended to accept a more penetrating judicial control.147 This divergence of ideological approach also continued with regards to the structure of the administrative trial, that for years swayed between the Napoleonic system and that inspired by the English jurisdiction. The afore-mentioned state of uncertainty was to cause significant effects. Administrative justice not only was affirmed in Spain at a much later time in comparison to other European countries, but was to constitute the result of an evident compromise between two distinct approaches. The 1888 law established the provincial Tribunals and a special section of the Consejo de Estado for challenging administrative acts. However, contemporarily it subtracted a vast series of administrative acts from the possibility of being subject to judicial control and even granted administrators the possibility to not respect judgments.148 In this set up an administrative judge was weak. The evolution of administrative law and consequently the regulation of administrative action, was above all rooted in legislative provisions. However in relation to the weakness of the set-up of the administrative justice system, Spain attempted to find a solution via the regulation of proceedings which was singled out as being the phase most suitable for administrative action where the persons concerned could assert their rights. The idea of actualising one sole administrative proceeding, on the model that in 1881 had characterised the regulation of administrative action in the tax-related ambit, was affirmed by Spanish juridical thinking with simple argumentations. It seemed almost natural that executive power, in the same way as legislative and regulatory power, should also constitute the effect of a sequence of acts, formally organised, where the will of the authority should be shaped.149 Although in Spain and much more than in other countries, administrative law rotated principally around the dogmatics of 146 Ferrari, 1991, 614. 147 R. Entrena Cuesta, Curso de derecho administrativo, Vol. I, Editorial Tecnos, Madrid 1983, 152 et seq.; F. Garrido Farra, Tratado de derecho administrativo, Vol. I, Editorial Tecnos, Madrid 1985, 408 et seq.; on the topic see also S. Muñoz Machado, Tratado de Derecho administrativo y Derecho público en general, Vol. IIV, Editorial Iustel, Madrid 2011; García de Enterría & Fernández Rodríguez, 2015, 62 et seq. 148 Ferrari, 1991, 614. 149 López Menudo, 1992, 19-76; J.A. Santamaría Pastor, Principios de Derecho Aministrativo General, II, Iustel, Madrid 2009, 31; García de Enterría & Fernández Rodríguez, 2015, 47 et seq.

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an administrative act, as it still the case today, the need for a proceduralisation of public action was felt before any other country, in the light of a general procedural vision in which every public function was to be traced back to.

2.8.1

The Positivistic Approach

Participation in proceedings would have meant that citizens’ observations would have been analysed by the public body. Thus the interference by a judge, so feared by a great part of Spanish jurists, would not come into play.150 It is in this context that, in 1889, a year after the ley Santamaría de Paredes that there was the first European legislative Act on administrative procedure. However the manifested intent to proceduralise administrative action was not realised. The principle error was due, in essence, to the optimism endowed in the expectation that the ministerial structures would have rapidly adopted the internal rules, without which the entire regulation would not have found any application.151 The first experience failed due to the structural shortcomings of the rules, which limited themselves to establishing some generic principles, remitting the organic development of the discipline to implementing regulations that each ministerial structure should have had to adopt. It is possible to think that the time was not right for a regulation of the procedure imposed from above and that there was a need thus to share the proposed reform with the authorities concerned. It was however highly improbable that the rules in relation to the procedure could be strengthened in the Spanish system by the authorities themselves that would have been the direct addressees of the limitation of the exercise of their power. It is not a coincidence that for years the ministerial regulations were not adopted in the slightest.152 The circumstance that each public body would see to arm itself with an implementing regulation at a distance of 10 years, one from another, led to a fragmentary situation, with procedures that existed in some sectors but absent in others: in other words the reasoning underpinning the law of 1889, that intended on the contrary to establish a common and general regulation of administrative procedures to apply to all public bodies, was being ignored.153 Thus, it was only in 1958 that Spain adopted a law on procedures that was to find a concrete application and that reflected the characteristics that still today are to be found

150 J. Gonzlez Pérez, ‘La justicia administrativa en España’, RAP, n. 6, 1951, 163-176; A. Nieto García, ‘Los orìgines de lo contencioso-administrativo en España’, RAP, n. 50, 1966, 27-50. 151 J. González Pérez, El procedimiento administrativo, Civitas, Madrid 1964, 85 et seq. 152 The Ministry of Industries organised the relative acts only in 1954, after over 60 years from the normative provision of 1889. 153 N. Amorós Rica, ‘El procedimiento administrativo español’, Revista General de Legislación y Jurisprudencia, t.185, n. 4, 1949, 733 et seq.

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in the model of the regulation of administrative procedure.154 One can note the need to combine the defence of citizens’ rights with the principles of efficiency and velocity. Alongside measures to guarantee participation and the defence of interests, there were institutions for the simplification and reorganisation of administrative activity. Spanish juridical thinking in the antecedent years had obstructed the idea of structuring administrative action for individual phases. Strong opposition was manifested above all from those who feared that the principle effect of these innovations would be nothing but a drastic slowing down of decision making.155 Hence the objectives of the 1958 rules and the set-up that was conferred to the entire normative structure, were not only aimed at disciplining the phases of the procedure, but also at regulating questions related to the administrative bodies. Many rules affirmed principles of maintaining low costs and flexibility, defining the invalidity of administrative acts and the possible administrative appeals. In Spanish juridical thinking thus the idea that the interested parties could express their own evaluations without compromising the celerity in the administrative action, was affirmed. The evaluation of the interests of the addressees was balanced with institutions of simplification, the prevision of certain times and the formal qualification of the silence procedure, with the progressive rationalisation of the organisational structures.156 This set up was elevated to the status of constitutional principle with the reform of the year 1978, where the fundamental rule imposed the existence of an administrative procedure to be regulated by law, reinforcing the duty to guarantee the participation of citizens, directly or via recognised organisations and the right to access archives and administrative documents.157 The strength conferred from the new constitutional rules to the rights of participation and the access to acts, the consolidation of the ever increasing role that the autonomous communities cut out for themselves in the institutional layout and the need to clarify, with laws, the concept of the persons concerned that would be able to participate in the procedures, both as individuals or as representatives of diffused interests, represent the reasons of the new law on procedure adopted in 1992.

154 On the principles of the LPA, see S. Álvarez Gendín, ‘Estudio de la nueva Ley de Procedimiento Administrativo’, RAP, n. 26, 1958, 175 et seq.; L. López Rodó, ‘Directrices de la Ley de Procedimiento Administrativo’, Documentación Administrativa, n. 8-9, 1958, 17-24; González Pérez, 1964, 83 et seq.; M. Bassols Coma, ‘La significación de la legislación de procedimiento administrativo en el Derecho Administrativo español. Especial consideración de la LPA de 1958’, in B. Pendas García (cur.), Administraciones Públicas y ciudadanos, Ed. Praxis, Barcelona 1993, 33 et seq. 155 Santamaría Pastor, 2009, 25 et seq. 156 J. Tornos Mas, ‘La símplificación procedimental en el ordenamiento español’, RAP, Vol. 151, 2000, 39-79. 157 Art. 105 Cost.

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2.8.2

Rights in Proceedings

According to the Spanish juridical thinking law n. 30/1992 was a complete disaster in the evolution of the regulating of the procedure: contradictions, serious gaps in the regulation of silence, both tacit approval as well as non-acceptance, numerous uncertainties with regards to the disciplining of administrative appeals and responsibility of public officials, to name but a few of the aspects predominantly criticised,158 rendered necessary a drastic reform that occurred only 7 years later, with law 4/1999. This law integrated itself into a general context of innovation that characterised in those years the evolution of Spanish administrative procedure. Its objective first and foremost was that of eliminating all the malfunctions that were caused by law n. 30/1992.159 In this context the principle of efficiency assumed a new force with the prevision of the obligation to conclude procedures and further elements of simplification were enforced, such as a help desk and the prevision of the first IT tools. Administrative action became participatory, transparent and opened out to the EU principle of legitimate expectation. The relationship between citizens and public powers became structured on different elements, with a particular attention to the protection of subjective rights and the satisfaction of the interests of the users, which together represented the reference point of the tendency to improve the functions and the services of public administrators. The rules of 1999 provided a clear imprint for the regulating of administrative action in Spain. The right to access, participation, transparency, efficacy, efficiency, the obligation to conclude procedures, regulation of time limits, the legal qualification of silence, annulment or revocation, the meticulous regulating of the validating elements of administrative acts and appeals, all constituted elements of the regulation that affirmed itself in the Spanish system. The characteristic traits of a detailed regulation of administrative action clearly emerge, as well as the idea that the more regulated the procedural phases are, the more the interests of citizens are protected and the more efficient the service provided will be.160 The evolution of the rules on proceedings in Spain mothered a normative system 158 E. García de Enterría, ‘Algunas reflexiones sobre el proyecto de Ley de régimen jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común’, Revista Española de Derecho Administrativo, n. 75, 1992, 325 et seq.; J. González Pérez, ‘Ante la nueva regulación del procedimiento administrativo’, Revista Española de Derecho Administrativo, n. 77, 1993, 27-50; S. Martín-Retortillo Baquer, ‘Acotaciones escépticas sobre la nueva regulación del procedimiento administrativo’, Revista Española de Derecho Administrativo, n. 78, 1993, 213-222; L. López Rodó, ‘El procedimiento administrativo, garantía de los administrados’, Revista de Derecho Administrativo, n. 15/16, 1994, 23. 159 F. Garrido Falla, ‘El procedimiento administrativo de 1950 a hoy’, Revista de administración Pública, n. 150, 2000, 115-157. 160 A. Nieto Garcia, ‘La inactividad material de la Administración: veinticinco años después’, Documentación Administrativa, n. 208, 1986, 11-64; F. Delgado Piqueras, ‘Las nuevas conquistas del principio constitucional de partecipación: terminanción convencional del procedimiento y medios consensuales de solución admnistratives’, in L. Ortega Álvarez (cur.), Comentarios a la ley 30/1992, de 26 noviembre, de Régime Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común, Revista Jurídica de Castilla-

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that incorporated in one single regulation the cases of abstention that could generate impartiality in public officials, the concept of interested parties for participation, the startup phases of the procedure, clear and distinct, depending on whether the initiative stems from a private or public party, defining the formal contents of the requests and the effects determined by petitions. The rules established each phase of the investigation, distinguishing between acquired official proof and that produced by the interested parties and regulating the criteria for the calculation of the various time limits envisaged. Hence in this way, public hearings and public information, as the principle models of participation in the procedure, the modalities for the acquisition of opinions and the technicalities for the communication and notification of the acts of the procedure, were regulated. The final phase was also outlined in detail, with the various hypotheses of the conclusion of the procedural sequence that ranged from the adoption of the final measure, desistence, renouncement by the interested party and the modalities to follow to prevent that inertia by the authority could lead to an unsuccessful conclusion of proceedings. The law distinguished the effect of acceptance or rejection in all the cases of tacit measures. In the first case inertia is qualified as an administrative act with consequences on the regulation of the acts of second degree, while in the rejection hypothesis the omission produces only procedural effects and is qualified as a mere legal fact. The law regulated in detail all the elements of an administrative act, the essential but only formal requisites, the hypotheses of invalidity, annulability, efficacy, enforceability, the modalities for notifications and communications, validation, conservation, conversion, the modalities of forced execution, the cases of revocations for worthy reasons and the competence for the adoption of second degree acts. Every administrative appeal was regulated. In recent years Spain inaugurated a new season of reforms161 with inevitable repercussions on the regulating of the procedure, which was incorporated in the new law of 2015.162

La Mancha, n. 18, 1993, 189 et seq.; M. Mabel Ivanega, ‘El principio del informalismo en el procedimiento administrativo’, Revista de la Facultad de Derecho, n. 67, 2011, 155-176. 161 Law n. 17/2009 of 23 November, on the free access to the activities of services and their exercise; Law n. 2/2011 of 4 March, on a sustainable economy; Law n. 19/2013, of 9 December, on transparency, access to public information and good government, or Law n. 20/1013, of 9 December, with important supplementary measures. 162 Laws nn. 39 and 40/2015, of 1 October 2015. Within the work of the commission for the reforms of public administration of 2013, the idea that an efficient administration could represent a fundamental factor for the relaunch of the economy absorbed by the evolution of the financial crisis, began to make headway. The national programme for the reforms of 2014 contain constant references to the necessity to rationalise the organisation of executive power and improve the efficacy of administrative action in order to overcome the numerous problems linked to duplications and the uncertainties determined by the confused regime of the conferment of competences, and provide more certainties both in proceedings where different administrators are involved, as well as in the relationships themselves between citizens and authorities. Cfr. J.A.Santamaría Pastor, ‘Los proyectos de ley del procedimiento administrativo común de las administraciones públicas y de régimen jurídico del sector público. Una primera evaluación’, Documentación Administrativa: Nueva Época, n. 2, 2015, 1-12.

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The rules of 1999, despite the tendency to reduce interpretative spaces, had however determined the superimposition of competencies and malfunctions, due to for the most part the new rules on the use of IT technologies that were not coordinated with the regulating of administrative procedure.163 The 2015 laws reprised the previous set-up and introduced new forms for simplification and clarified the use of IT technologies in the procedure, the keeping of books, archives and IT documents. The provisions relative to the regime of administrative acts remained the same while novelties were recorded with regards to electronic notifications. In the new law the regulating of the procedure included in a unique normative context also the sectors of liability and the exercise of disciplinary powers that were regulated in separate parts in law 30/1992, reinforcing the duty to conclude proceedings in the established time limit, fixed at 30 days and prescribed the possibility to use a simplified procedure to accelerate administrative decision making. The modalities of participation were shaped depending on the procedure, due to the fact that in the simplified form the obligation to hear the addressee of the final provision was guaranteed only if it proved to be negative in relation to the presented petition. Notable innovations were recorded in rulemaking that included the hearing of the interested parties before the final approval of the definitive text and permitted the interested parties to contribute to the content of the regulation activity. Thus Spain made a further step forward towards the open investigation model that until then had been the almost exclusive prerogative of the American system.164

2.9

The Diffusion of the Spanish System in Latin America

The evolution of Latin American constitutionalism and the consequence of the overcoming of the authoritarian and military regimes offered the occasion to investigate the institutions used for democratic consolidation, with a focus on the mechanisms for the protection of rights, both individual as well as collective. The recent constitutional reforms brought significant innovations to participatory democracy and the rights of individuals found

163 R. Rivero Ortega, ‘Simplificación administrativa y administración electrónica: objetivos pendientes en la transposición de la Directiva de Servicios’, Revista Catalana de Dret Públic, n. 42, 2011, 115-138; Tornos Mas, 2000, 39-76; C. Cierco Seira, ‘La administración electrónica al servicio de la simplificación administrativa: luces y sombras’, Revista Aragonesa de Administración Pública, n. 147, 2011, 155-217; J.M. Baño León, ‘La reforma del procedimiento. Viejos problemas no resueltos y nuevos problemas no tratados’, Documentación Administrativa. Nueva época, n. 2, 2015, 1-8; L. Martín Rebollo, ‘La nueva Ley de Procedimiento Administrativo Común’, Revista Española de Derecho Administrativo, n. 174, 2015, 16-18. 164 J.A. Santamaría Pastor, ‘Un nuevo modelo de ejercicio de las potestades normativas’, Revista española de derecho administrativo, n. 175, 2016, 31-55.

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ample spaces of protection, via the amparo, present everywhere, the defensor del plueblo and the penetrating control of constitutionality.165 The majority of the countries bound themselves to respect the American Convention on Human rights and ceded parts of their jurisdiction to the Inter-American Court of Human Rights. The international agreements underwritten via the Pacts on civil, political, economic and social rights orientated the States towards a greater protection of subjective legal positions. In the internal system of the legal sources, the international rules prevail above the laws, up to the point of reaching the status of constitutional norms in some cases.166 These circumstances, that led the countries of Latin America to launch an extraordinary season of reforms, also determined the affirmation today of contents and innovative mechanisms for the protection of rights. From this stemmed a general rethinking of the relationship between citizens and public powers, founded on the tendency to resolve for the most part the problematics that little by little emerged from the application of the rules. The evolutionary process occurred in the countries of Latin America with different intensities and modulations. In these jurisdictions administrative justice systems did not develop to the point of forming a consolidated internal juridical thinking. In some cases mixed systems were born, in other cases there was the passage from monist to dualist systems.167 But, if one excludes the Columbian experience, the consequence of greater interest is undoubtedly the scant importance conferred to the courts’ decisions. In the Constitutions, where envisaged,168 one can note rules that sanction the right to a fair trial, based on the American model.169 It is however via the law of the Inter-American Court for Human Rights that the connection between elements of the proceedings and a

165 A.R. Brewer Carías, ‘El tratamiento del principio de la legalidad en las leyes de procedimiento en América Latina’, Revista AIDA, n. 8, 2010, 50-81. 166 L. Mezzetti, ‘L’America Latina’, in Carozza et al. (cur.), 2009, 502. 167 In 1853 in Mexico, there was the conferment of the administrative jurisdiction to the Council of State, on the French model. With the Constitution of 1857, jurisdiction returned to the ordinary judges and in 1864 the Council of State system was restored, confirmed in the constitutional reforms of 1946 and 1987. On the topic C. Huerta, ‘Análisis de la regulación del procedimiento administrativo en México’, in P. Aberastury & H.-J. Blank (cur.), Tendencias actuales del procedimiento administrativo en latinoamérica y europa, Kas, Buenos Aires 2011, 489-518. 168 Art. 141 of the Venezuelan Constitution of 1999 expressly establishes the principle by which the authority is to serve citizens, and must base its action on honesty, participation, speed, effectiveness, efficiency, transparency, with direct responsibility and respect the principle of legality. 169 The Brazilian Constitution of 1988 sanctioned the right to a defence in the ambit of an administrative trial, but the expression clearly refers to the procedure. Art. 5 states that no-one can be deprived of their assets or their freedom without a trial, on the model of the due process of law of the United States. Art. 37 of the Brazilian Constitution requires that an administration operates in accordance with the principle of legality, impersonality, morality and publicity. The principle of a fair trial can be also found in Art. 173 of the Constitution of Ecuador of 2008, Art. 29 of the Constitution of Columbia of 1991, Art. 49 of the Constitution of Venezuela of 1999, Art. 317 et seq., Const. Uruguay, Art. 39 of Constitution of Costa Rica.

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170 J.P. Machado Arias, ‘El procedimiento y proceso administrativos en la jurisprudencia de la Corte Interamericana de Derechos Humanos, in Idem (cur.), Procedimiento y justicia administrativa en América Latina, Fundación Konrad Adenauer, México 2009, 123-161. 171 Machado, 2009, 152. 172 Huge influence was exerted within the systems by the reception at a constitutional level of the Pact of San José, Costa Rica (American Convention of Human Rights), ratified in Argentina with law 23.054 of 5 December 1984. 173 A.R. Brewer Carías, ‘La regulación del procedimiento administrativo en América Latina con ocasión de la primera década (2001-2011) de la Ley de Procedimiento Administrativo General del Perú (ley 27444)’, Derecho PUCT, n. 67, 2011, 47-76.

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experiences: in Bolivia, Uruguay and Peru where they number 16, 13 in Chile and 12 in Brazil.

2.9.1

The Evolutionary Context in Argentina

The incorporation of rules in administrative action in a unique normative context began in Argentina in 1972, with law n. 19.549 that initiated the regulation of the procedural phases in some specific matters.174 This law was inserted in a context in which various special provisions already existed but that however had recorded a somewhat scant application. On the other hand, due to the fact that at the end of the nineteenth century practical remedies against acts adopted by public officials were lacking, the efficacy of the rules on the procedure depended more on less on a spontaneous respect175. Under a clear Spanish influence, the normative system was organised on the centrality of an administrative act, its efficacy, invalidity, validation and revocation, while there was no such corresponding complete regulating of the procedure, at least at a central level. The set-up of the dogmatics of the administrative act is clear also in relation to the abuse of power, that is ascribable to the idea of an administrative will not correctly formed and also in the event of physical or moral violence or corruption. In the systems that overcame the traditional centrality of an administrative act, normally the process of the formation of the will of the public power was influential if the conformity of the action to the law was analysed. If the exercise of the function respected the parameters of legality, the elements that induced the public official to make a specific choice would not have a particular importance. The Argentinian legal system envisaged instead a typical judicial action, regulated by a general law on procedure,176 to contrast the phenomenon of the incorrect formation of the will expressed in the administrative act: an act was deemed illegitimate, due to the abuse of power not only if there was contradictory between the disposition and the motivation or in relation to a prior act or if it was founded on a document that subsequently proves to be false, but also if it was the result of an crime, or a coercion of the expressed will. The abuse of power, typically considered as a legal flaw of the administrative function, in this case assumed an importance under the profile of the altered formation of administrative will, as occurs in private law where these problematics allow the annulment of a contract due to the fact that the will, at the stipulation, was not liberally and serenely formed.

174 Among which law n. 160/1857, in relation to sanctions to contrast smuggling, and the laws n. 428/1870 and n. 3057/1893 in relation to taxation. 175 J.R. Dromi, Derecho administrativo, Ciudad Argentina, Buenos Aires 1996, 146 et seq.; J.C. Durand, ‘El procedimiento administrative en la argentina’, Aberastury & Blank (cur.), 2011, 303-304. 176 Art. 22 Law n. 19.549/72.

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The structure of the law indicates clearly how Argentina had given scant attention to the regulating of the general procedure and how the tendency to regulate single procedures by subject matter was somewhat affirmed. Alongside the general law on administrative acts, one can find a vast series of rules regarding special procedures, in a plurality of sources that was favoured also by the federal structure of the country, so much so that a lot of rules on the procedure at a national, provincial and municipal level exist.

2.9.2

The Strong Inquisitorial Characterisation

A second evolutionary phase was recorded following the Argentina constitution of 1994 that conferred a super-constitutional value to international treaties and agreements on human rights, among which appears the right to an effective administrative protection. Article XXI de la Declaración Americana de los Derechos y Deberes del Hombre prescribes the right to present a petition to the competent authority, to which there must be a prompt response. The link between the principles of an effective protection sanctioned in international law and the efficacy of an internal remedy against administrative acts soon became validated by the Supreme Court of Argentina.177 From that moment onward judicial control on administrative acts began incisive and penetrating. In this experience the procedural phases were formed in a way that is very similar to that which occurred in the Spanish system and for the most part in Italy too, under the influence of the German system. Participation in the procedure is permitted to the holders of rights and legitimate interests. The time limits of the procedure, normally, can be extended. A public authority must conclude proceedings concentrate in a unique context the questions that can be analysed contemporarily, institute efficient mechanisms for the management of homogeneous cases, summon the parties, their representatives or lawyers, in order to demand explanations and reduce the differences of viewpoints.178 The definitive acts must be notified to the involved citizens179 with the indication of the judicial remedies and the relative time limits.180 The model is clearly inquisitional. A public power acquires acts, documents, declarations from third parties and testimonial evidence in order to gather the information and data that will form the foundations of its decision. The administrative investigation is founded on the gathering of evidence in a way that is very similar to that which occurs in a lawsuit. This approach is evident also when one observes the modalities of the conclusion of the

177 178 179 180

Durand, 2011, 282. Art. 5 implemental reg. 1759/72. Art. 39 implemental reg. 1759/72. Art. 40 implemental reg. 1759/72.

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procedure. In addition to the adoption of an expressed administrative act, the procedure, in the same way that happens in a lawsuit could conclude itself due to the inactivity of the parties, with the only difference being that in the administrative procedure this effect follows only the inactivity of the private party and is not referable to the authority.181 The closing effect of the proceedings occurs via the institute of silence, in an inverted model.182 The authority communicates to the addressees of the final provision the need of documents or new observances and, in the event that the citizen remains inert with the passing of 30 days from the notification of the request, the proceeding is extinguished. However the claimed right that could constitute the foundation for the renewal of the request and the activation of new proceedings, is not extinguished. Among the principles one can again find that of legality, material truth, informality, groundlessness, efficacy and the same principle of proportionality that already date back to the legislative previsions of 1972.183

2.9.3

The Spreading of the Principles

In the years following the adoption of the Argentinian law, in Uruguay, Decree Law n. 640/973 on administrative proceedings was approved, substituted by decree n. 500/991 in 1991, where Article 2 amplified its ambit and dictated the general laws on administrative action. The Uruguain approach envisaged as many as sixteen guideline principles of administrative action: impartiality, legitimacy, impulse ex-officio, material truth, economy, celerity, efficacy and information in favour of the administrated, flexibility, informality, material delegation, fair proceedings, cross-examination, good faith, until proven otherwise, motivation of the decision, gratuity and proportionality. In 1978 Costa Rica presented a general law on administrative procedure, followed by the organic law adopted by Venezuela in 1981 and later by the regulating of administrative simplification approved with Decree Law n. 368 of 05 October 1999 and by the organic law on public administration of 17 October 2001, both of which were reformed in 2008. Venezuela adopted the principles of economy, celerity, simplification, reporting, efficacy, efficiency, proportionality, opportunity, objectivity, impartiality, participation, honesty, accessibility, uniformity, modernity, transparency, good faith and parallelism between administrative action and responsibility, with a strong affirmation of the principle of legality. In 1984 the reform of the code of administrative litigation came into being in Columbia to which a new part entirely dedicated to the regulating of administrative action, was added, that was further 181 T. Hutchinson, ‘La caducidad en el procedimiento administrativo’, RAP, n. 12, 1979, 9 et seq.; D.A. Halperín, ‘El carácter obligatorio de los plazos en el procedimiento administrativo nacional’, RAP, n. 16, 1980, 27 et seq. 182 D.A. Halperín, ‘Los plazos en el procedimiento administrativo’, in G. Santiago Tawil (cur.), Procedimiento administrativo, Abeledo-Perrot, Buenos Aires 2009, 253-265. 183 Art. 7 law n. 19.549/72.

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developed, with law n. 1437 in 2011 based on nine principles of administrative action: fair proceedings, equality, impartiality, good faith, modality, participation, responsibility, transparency and legality.184 In 1987 Honduras approved its own law on procedures and in 1994 in Mexico a Federal Law was introduced on administrative procedure;185 in Brazil, in the period antecedent to the new constitution of 1988, there were rules and policymaking acts to regulate participation in penalty and financial proceedings.186 The Brazilian legal system began thus its progressive adaption to the constitutional principle of a right trial, initially via several sectorial rules and then successively with the general law on procedure n. 9.784/99. The law elevated to the status of principles of administrative action: motivation, rationality, proportionality, publicity, legal certainty and efficiency. These were added to those of a fair procedure, ample defence, participation, impartiality, a reasonable duration, informality and material truth. In this experience, in particular, the principle of morality was not connected to that of legality but represented a different element.187 On 31 July 2000, Panama approved law n. 38. In 2001, in Peru, with law n. 27.444, a further step forward was taken. The law listed sixteen principles, and preserved all the others that sustained, in a more general way, administrative law, making evident that the listed group was not obligatory but that it was to be integrated with other elements, although this was not expressly specified. The same number of principles was affirmed in Bolivia, with law n. 2341 of 23 April 2002 and in Chile with law n. 19.880 of 29 May 2003. Each law contains similar principles, at times with a particular focus on some more guidelines. The regulation of the phases of administrative action evolved in a similar way to that of the Spanish system. Hence an idea of administrative procedure in Latin America was affirmed, that corresponded to a sequence of acts that were aimed at, via the guarantees of participation and an ample defence, preparing the decisions that could have a bearing on the interests and the rights of the interested parties.188 The principle of legality was constantly balanced by the need for efficacy in administrative action and the authority could give priority to the realisation of the objective of the

184 Corte Constitucional de Colombia Sentencia C-371 de 2011, (judge Luís Ernesto Vargas Silva) affirmed the principles that sustain administrative procedure are, in essence, equivalent and none prevails on another, due to the fact that they are directed towards the realisation of a fair procedure. 185 In the same year in Ecuador too, decree n. 1634/1994 regulated the executive aspects of administrative procedure. 186 Cfr. R. Perlingeiro, ‘Los principios de procedimiento administrativo en Brasil y los desafíos de igualdad yde seguridad jurídica’, in Aberastury & Blank (cur.), 2011, 316. 187 The Supreme Federal Tribunal, in judging legitimate a measure adopted by the National Justice Council, in a case related to the hiring of relatives in the ambit of the judiciary, in fact deemed that this behaviour was contrary to morals and not to the law. Cfr. Supremo Tribunal Federal. ADI 3.617/DF. Brasilia, DF. Cfr. L.R. Furtado, Curso de direito administrativo, Editora Fórum, Belo Horizonte 2007, 104-105. 188 Colombia, Corte Constitucional, Sentencia T-210 de marzo 23 de 2010, M.P. Juan Carlos Henao.

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act on the formal requirements of the procedure.189 However it is the principle of the informality, inspired by the German model, that specifies the impact of the principle of legality. Its application ensures that the unlawfulness of proceedings that do not appear to have a substantial nature, cannot determine the annulment of administrative acts but rather it constitutes the object of the successive validation. The principle of legality is viewed in the formal sense only when it implicates the respect of the law as a founding element of executive power. Viewed in this way, rather than as a guiding principle of public operate, in reality it is nothing more than the duty to respect the hierarchy of the legal sources. Legality, in a true sense, concerns instead the exercise of discretionary power which connects to the principle of rationality.190 Doctrine distinguishes the essential elements of the procedure from those that were not essential in relation to the possibility of a validation. That is to say that if that element was essential and was lacking in the procedure, there was the upmost need to integrate it in a successive moment. Conversely, if it was not essential, there was no need for it to be integrated.191 The principle of material truth was also attributed to this very same set up, that directed administrative action towards adopting measures that were in line with substantial truth even when the final provision presents itself in contrast with the information provided by the parts. In Argentina the law of the Supreme Court attributed in fact the rationality of the administrative action to the principle of legality which regulates all administrative action and incorporates strict legality within its ambit. Thus the idea that legitimacy must contain within itself a sense of justice and rationality began to take root in Argentine doctrine and constituted one of the main aims of public action and cannot be expressed in any other form except through administrative procedure, which therefore became the moment when the principle becomes effective.192 The interests of the administrated were place at the forefront among the evaluations that public administrations were bound to carry out. Efficacy was oriented towards the satisfaction of the expectations of citizens. In some cases it was envisaged that petitions should be interpreted in favour of the applicants and thus, when in doubt, the authority must pronounce itself in favour of the granting of the petition presented.193 The principle of favouring the satisfaction of the interests of the addressees can be ascertained in the rules that in in Colombia (Art. 11), Bolivia (Art. 43), Venezuela, (Art. 45), Honduras (Art. 189 The principle of effectiveness included in the laws of Argentina (Art. 1), Venezuela (Art. 30), Honduras (Art. 19), Brazil (Art. 2) and Mexico (Art. 13), and Decree of Uruguay (Art. 2). A precise definition of the principle of effectiveness, as has been said, is in the Colombian Code (Art. 3), the Law of Bolivia (Art. 4 j) and in Peru Law (Art. IV, 10, 1). 190 J.C. Cassage, Derecho Administrativo, tomo II, Abeledo-Perrot, Buenos Aires 2002, 29. 191 Durand, 2011, 303-304. 192 Ivi, 300. 193 Art. 224 law on procedure in Costa Rica.

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115), Panama (Art. 76) and Peru (Arts. 125 y 126), bound public bodies to communicate to interested parties the errors and omissions present in their requests. The documental gaps could not constitute valid reasons for declaring the inadmissibility of the presented petitions. In Columbia the constitutional Tribunal sanctioned the principle based on which in the event of a conflict between a general interest and a particular interest, precedence must be given to the unalienable rights of the person, in accordance with Article 5 of the Constitution.194 In the face of needs such as general security or the efficacy of administrative justice, the rights to life, to a due process, are collocated in a higher normative position that descends directly from the constitution, with the effect that the respect of fundamental rights constitutes the first general interest that must be pursued by the legal system.195

2.9.4

The Influence of Common Law in Colombia

The widespread tendency to valorise interests of citizens that is widely noted in Latin America reached a particular evolution in Columbia. Here, a joint regulating of administrative trial and proceedings, also exists.196 From this point of view the regulation of the procedure was articulated with the main objective of organising administrative action in such a way that it could offer a service that was as efficacious as possible and that would thus guarantee some fundamental elements of the rights of individuals.197 Notions such as the right to access information, interest representation or models of administrative simplification were immediately taken into consideration to satisfy the interests of citizens in the procedural phase.198 To these traditional tools however the Columbian system added the obligation of public administrators to extend the effects of judgments of unification expressed by the Council of State. Here equality finds its maximum expression. A public power was bound to apply the principle expressed by the unification ruling made by the maximum authority of administrative justice to all those that, in a way independent from the case of a judicial appeal, found themselves in the same conditions as those who obtained a favourable judgement. In other words a new source of law was determined but of a

194 Corte Constitucional, sentencia T-669 de 1996, M.P. Alejandro Martínez Caballero. 195 Corte Suprema de Justicia en Sala Político Administrativa, sentencia de 9 de julio de 1997. 196 L. Rodríguez, ‘Un siglo de derecho administrativo en Colombia’, in A.A. Arismendi & J. Caballero Ortiz (cur.), El derecho público a comienzos del siglo XXI. Estudios en homenaje al profesor Allan R. Brewer Carias, Madrid, t. II, Civitas, Madrid 2003, 1335-1358; R. Araujo Oñate, ‘El procedimiento administrativo colombiano como garantía de los derechos del ciudadano’, in Aberastury & Blank (cur.), 2011, 399 et seq. 197 Colombia, Consejo de Estado, Sala de lo Contencioso Administrativo, Sección Tercera, 30 November 2006, Radicación número: 110010326000199503074 01, Consejero Ponente: Alier E. Hernández Enríquez. 198 R. García Macho, ‘El derecho a la información, la publicidad y transparencia en las relaciones entre la administración, el ciudadano y el público’, in Idem (cur.), Derecho Administrativo de la información administración transparente, Marcial Pons, Madrid 2010, 31 et seq.

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jurisprudential production by an administrative court.199 In civil law countries this function is typical of constitutional judiciaries. In a diffused manner the constitutional courts when they interpret the law in force add via interpretative rulings new provisions that are not envisaged by legislative texts. The force of the binding precedent, typical of common law countries, normally is widely conferred to all of the judiciary, with greater importance given to the jurisdictional vertexes but however at the disposal of each judge. The innovation in Columbia conferred to the Council of State the considerable function of the production of the legal sources. The envisaged mechanism overcame all the traditional limits of the binding precedent. 2.9.4.1 Case Law and Procedural Principles The innovative phenomenon is due to a vast range of factors that regard both the evolution of the normative layout, as well as the system of administrative justice. Law n. 167 of 1941 contains the first rules on administrative procedure in Columbia. It regulated the principle aspects of the organisational system of administrative justice and contextually some specific moments of administrative action, among which the enforceability of an act and the possible remedies. In this case too, in the first regulations, the procedure did not assume any external importance. With Decree Law n. 2733 of 7 October 1959 the right to petition, stipulated in Article 45 of the Constitution of 1886, was regulated. The next step was the enabling law n. 58 of 28 December 1982 that focused on administrative procedure as an organisational moment of the action to guarantee complete adherence to the constitutional principle of the right to petition.200 Hence there was the obligation to respond with celerity and efficiency to petitions presented by citizens, as well as envisaging efficacious solutions when an authority failed to respond to the petition or had delayed the issuance of a final measure. The first forms of regulation of administrative procedure in Columbia originate with the application of the constitutional precept that regulates the right to petition by citizens. The entire approach to the disciplining of administrative action registers, from its origins, a clear and evident orientation towards the guarantee that citizens’ requests would be satisfied.201 On the basis of the criteria established by Article 11 of law 58 of 1982, with the legislative decree n. 01 of 1984, the rules of administrative litigation were modified and the first forms of administrative procedure were disciplined. The rules were applied only in the absence of a special disposition, as in Argentina. The entering into force of the Constitution of 1991 induced thus the Columbian government, with measure n. 4820 of 199 Art. 10 of law n. 1437/2011 obliges administrators to apply constitutional, legal and regulatory rules in a uniform manner, when in the presence of identical presuppositions de facto and de jure. The principle requires thus that an administrator must extend the effects of the unification ruling to all those that made a request and find themselves in the same identical situation. 200 J.O. Santofimio Gamboa, Tratado de Derecho Administrativo: acto administrativo, procedimiento, eficacia y validez, Universidad Externado de Colombia, Bogotá 2004, 32-33. 201 López Menudo, 1992, 19-76.

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14 December 2007, to set up a commission for the reforming of administrative trials, with the aim of studying modifications to the Administrative Code. On 18 January 2011, law n. 1437 reformed the entire previous system. In compliance with constitutional principles, administrative procedure, in a unitary vision with the rules of a trial, was bound to guarantee the swift acknowledgement of fundamental rights.202 Among the constitutional content that orientated the disciplining of proceedings and lawsuits, juridical thinking also envisaged the necessity to rationalise the access to justice, simplify procedures, reduce the margins of uncertainty in the law and apply with greater incisiveness, the principle of substantial equality.203 In contrast to that which had occurred in other Latin America experiences, in Columbia the judiciary assumed a more incisive role. In this legal tradition, clearly inspired by the French experience, the Council of State was originally considered as an advisory administrative body. The first forms of administrative justice followed the French example and imagined this body with the objective of collaborating with administrative authorities rather than having a tight judicial control. The principle of legality that affirmed itself in Columbia also sanctioned the necessity to centralise the functions of the State with the reduction of the spaces of local autonomies, a principle thus with a strong centralisation founded on the supremacy of the law in a formal sense. However, at the beginning of the twentieth century, this approach changed perspective with law 130 of 1913, which decreed the Council of State to be the supreme court of administrative justice. In contrast to the French model the Council of State was not viewed as an authority whose function could consist in conferring interpretations to the administrative rules, which was instead conferred to the Court of Cassation taking into account the principle of strict legality and the centralised model of the Columbian State. If the national legislation constitutes the sole legal source, its interpretation must be unique, at a central level. The identification of some elements to strengthen the courts’ decisions, identified in the concept of probable doctrine,204 was provided by the juridical thinking of those years. The approach however that stems from the idea of a probable doctrine appeared extremely elastic.205 Interpretative power was conferred to a supreme judge who guaranteed the possibility to correct prece202 M.A. Lòpez Martinez, ‘Nuevo Código Contencioso y unificación jurisprudencial: algunas reflexiones en torno a los criterios de utilidad’, Revista Principia IURIS, n. 13, 2010-1, 167-184. 203 D. Rojas Betancourth, ‘Extensión de las sentencias de unificación de la jurisprudencia’, in V.H. Alvarado Ardila et al., Instituciones del Derecho Administrativo en el nuevo Código. Una mirada a la luz de la Ley 1437 de 2011, INC, Bogotà 2012, 91. 204 This word refers the interpretive activity that aimed at the unitary and uniform application of the law, by the Supreme Court of Justice. The concept originates from the disposition of the law 153 of 1887, Art. 10: “En casos dudosos, los Jueces aplicarán la doctrina legal más probable. Tres decisiones uniformes dadas por la Corte Suprema, como Tribunal de Casación, sobre un mismo punto de derecho, constituyen doctrina legal más probable”. 205 On the topic M. Skinner, Historia del Precedente Judicial en Colombia, Universidad Externado de Colombia, Bogotà 2011.

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dents thus providing a constant and continual adaptation of interpretations. In fact, in 1896 the Supreme Court of Justice had judicial power over administrative disputes and ordinary and constitutional control was still weak. The function of the Cassation was identified as being strictly linked to the unification of the existent legislation.206 Despite the fact that Article 230 of the Constitution cites courts’ decisions as a legal source, juridical thinking was divided on the argument between those who sustained that the constitutional norm was clear and evident207 and others instead who sustained that the constitution was to be analysed in the Columbian civil law tradition.208 In relation to this question the Constitutional Court marked a progressive opening towards the model of the binding precedent. In the first rulings the court confirmed the predominance of the legislation in relation to the other legal sources. The interpretations provided by the Supreme Judiciary, among which the Council of State, were furthermore not binding for the other judicial bodies. In 1997 there was an initial opening by the Constitutional Court, when also courts’ decisions were considered as a formal legal source. However, with laws n. 600 of 2000 and n. 904 of 2004 a principle of extreme importance was affirmed: Article 220 of the penal procedure code envisaged the possibility to exercise the action of revision of the executive judgment when the Court of Cassation changed its interpretation on of the rules that led to a specific judgement. Thus one can sense the retroactive effect of the change in case law in the penal system, in execution of the principle of favour rei. Immediately however the Constitutional Court blocked the tendency to amplify the affirmation of a binding precedent and affirmed a principle, in part contrary, that would have in the future permitted changes in interpretative orientations provided that they were founded on motives that were exposed in a rational manner.209 With ruling C-836, in 2001 the Constitutional Court offered a new interpretation of Article 4 of law 169 of 1896 and affirmed with force the binding value of the interpretations expressed by the Supreme Judiciary. 2.9.4.2 The Binding Force of the Unification Rulings by the Consejo de Estado Subsequent to the law n. 600 of 2000 and the interpretation offered by the Supreme Court, in essence, there were specific matters for which the principle of unification was effective, among which the acknowledgement and the payment of pensions, social and salary services,

206 A function then consecrated in the code of civil procedure approved with the decree 1400 of 1907. 207 E.J. Arboleda Perdomo, Comentarios al nuevo Código de procedimiento administrativo y de lo contencioso administrativo, Legis, Bogotá 2011, 157. 208 J. Estrada, ‘El precedente jurisprudencial. Un breve estudio del estado de la cuestión en la jurisprudencia constitucional durante el año 2001’, in E. Montealegre Lynett (cur.), Anuario De Derecho Constitucional, Análisis De La Jurisprudencia De La Corte Constitucional de Colombia, Universidad Externado de Colombia, Bogotá 2003, 45-63. 209 On the topic J.A. Contreras Calderón, ‘El precedente judicial en Colombia: Un análisis desde la teoría del derecho’, Revista Facultad de derecho y ciencias políticas, Vol. 41, n. 115, 2011, 331-361.

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injuries caused by firearms, injuries to prisoners and tax-related conflicts. The relative interpretative powers were conferred to an ordinary judge with regards to the protection of fundamental rights. From this stemmed the immediate amplification of the possibility that the vertexes of the jurisdictions could express binding orientations and in an independent manner form the type of action proposed. Based on these approaches Article 115 of law 1395 of 2010 conferred to the courts, in the presence of a precedent, the faculty to decide similar cases, giving precedence in relation to the other ongoing judgments and without considering the chronological order of the registration of the lawsuits.210 The approach of the law n. 1395/2010 and the successive interpretation by the Constitutional Court started a new phase in which the boundaries that the orientation expressed in ruling C-252 of 2001 had placed before the attempts to insert the mechanism of stare decisis in the Columbian system, were called into question. The Council of State could also express binding precedents within its own jurisdiction. Law 1437 of 2011 was an ulterior and definitive step forward. The Council of State was expressly acknowledged as a judiciary with the function of unifying law and for such a function, a specific remedy, constituted by the recourse to the uniformity of case laws, was envisaged.211 Article 102 prescribed the obligation for administrations to also extend the effects of the rulings of unification issued by the Council of State to third parties that had not taken part in the case decided by the administrative court. It was the definitive affirmation, already feared by the ruling of the Constitutional Court of 2011, that public bodies were bound to apply in a general manner the provision of the rulings of unification of law to those that requested the acknowledgement of the same right and that found themselves in the same legal position.212 Law n. 1437, according to the more attentive juridical thinking, extended in essence the effects of

210 In 2010, law n. 1395 was approved with the aim of adopting measures to relieve the pressure on jurisdictional functions. In the ambit of administrative litigation, Art. 4 of the cited law confers to the Sala de decision en pleno the function of unifying case law and establishing a judicial precedent. Art. 114 established the principle that all public authorities would have to apply the jurisprudential principle expressed in the judicial precedents if they had been expressed in at least five cases. 211 H.A. Olano García, ‘Del precedente constitucional al nuevo precedente contencioso administrativo’, Estudios Constitucionales, n. 2, 2011, 395-428; J. Sarmiento, ‘Hacia la constitucionalización del precedente judicial en Colombia, un esfuerzo por controlar a las fuentes del derecho?’, Opinión Jurídica, Vol. 11, n. 22, 2012, 65-82. 212 The procedure to follow is simple. The interested party must present a motivated petition in which they must specify exactly the terms of their request and indicate the premises de facto and de jure that in their opinion coincide with the principle established in the unifying ruling. In addition, they must attach all the documents and evidence in their favour and a copy of the ruling. If the public body that is bound to decide within 30 days rejects the petition, the claimant can turn directly to the Council of State. An acceleration element envisages that in the event that a petitioner has already presented a similar request that was then rejected before the pronunciation of the unifying ruling, the authority is bound to pick up again the investigation related to the previous rejected petition. Cfr. Art. 102 law n. 1437/2011.

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the final judgment. The ruling of unification could produce effects also in relation to the same parties of the lawsuit who had obtained an unfavourable ruling.213 The idea of a binding precedent was acknowledged by the judiciary with the same vigour, due to the fact that in the interpretation provided in the aftermath of its appearance in Columbia, the Council of State reaffirmed with force that judges could detach themselves only when a truly serious reason, founded on an expressed and comprehensive motivation, existed.214 Compatibility of the binding judicial precedent with the constitutional rules was founded on many elements that were affirming themselves in Columbia, among which the respect for a fair trial, the value of the ruling and equality in the application of the law.215 The binding precedent furthermore constitutes a correct application of the principle of legality and guarantees the interpretation of the laws in a uniform way, by public powers which are bound to guarantee the substantial principle of equality. In this approach the law is not only intended in the formal sense but assumes an importance in its material aspect that is supported and integrated by courts’ decisions, via the mechanism of the ruling of the unification of law.216 The force of the innovation dragged along also the destinies of the judicial ruling of the Council of State, issued before the entering into force of law 143/2011, that although was not formally denominated as a ruling of unification however presented similar characteristics.217 The Columbian juridical thinking questioned itself on the eventual conflicts of interpretation that could arise from the same question between the Constitutional Court and the Council of State, once this authority was acknowledged to have the capacity to create laws.218 The rulings of the Constitutional Court were to be also respected by courts and thus the Council of State, also in the drawing up of the ruling of unification, should adapt itself to constitutional courts’ decisions. However juridical thinking questioned itself on the consequences on administrative action due to the possible conflict between the two courts.219 The authorities could not extend the effects of the ruling of unification where it contrasted with the interpretation given by the Constitutional Court.220 213 The extension of the effects of the sentence of the Council of State is however limited only to unification sentences of law and not to any ruling, as seemed to transpire from the rules of the law 1395 of 2010 and the successive interpretation given by the Constitutional Court. 214 Consejo de Estado, Sala de Consulta y Servicio Civil, Concepto No. 2069, 16 February 2012, C.P. Dr. William Zambrano Cetina. 215 Corte Constitucional, C-539, 12 July 2011, Magistrado Ponente: Luis Ernesto Vargas Silva. 216 Araujo Oñate, 2011, 407. 217 Art. 270 of law n. 1437 establishes in fact that those rulings emitted by the Council of State on significant matters due to the importance of the juridical arguments treated, are to be intended as jurisprudential unification rulings, by virtue of the economic and social effects that derive from them or to provide jurisprudential orientations. 218 Araujo Oñate, 2011, 409 et seq. 219 Ivi, 411. 220 The Case C-816 of 2011 of the Constitutional Court by which declare enforceable paras. 1 and 7 where the Court stated that: “entendiéndose que las autoridades, al extender los efectos de las sentencias de unificación

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In reality a public power could also reject the extension but was bound to give the reasons for which it deemed that the question subject to its examination was not identical to that decided by the Council of State.221 The obligation of adaptation could not be checked by difficulties of an economic or organisational nature. Administrative action was notably amplified, well beyond the limits of what it had itself programmed, with all the inevitable problems connected to the needs, above all financial that could derive from the obligation of extension of the rulings of unification to a vast majority of the citizenry. It is evident that in some cases administrative action would necessarily find support in legislative rules that placed the same authorities in the effective conditions to be able to apply the principles expressed by the ruling of unification.222

2.10

The New Tendencies of Central-Eastern Europe

The studies that dealt with the process of transition of Central-Eastern Europe highlighted the presence of a rather constant data in relation to the progressive affirmation of the elements of western democracy: the constitutions sanctioned the existence of a vast range of rights against public authorities, but they seem orientated to demonstrating the adaptation of the jurisdictions to the principles of European Union law in order to pave the way to becoming a member of the European Union, rather than a solid normative basis for a new way of intending the relationship between citizens and public authorities.223 Countries born out of the disintegration of ex-Yugoslavia and the ex-Soviet Union were progressively modifying their own systems, but constitutional transitions need time to consolidate themselves. The tendency that today can be widely documented in this area is that of amplifying the rights of individuals, which necessarily leads to posing the question of the limits of public action in relation to rights in expansion, when the exercise of public power becomes action, a measure, which has a bearing directly on individual legal positions. The

jurisprudencial dictadas por el Consejo de Estado e interpretar las normas constitucionales base de sus decisiones, deben observar con preferencia los precedentes de la Corte Constitucional que interpreten las normas constitucionales aplicables a la resolución de los asuntos de su competencia”. 221 In order to obtain the desired effect, the ruling must be as complete as possible under the motivation profile, and contain the description of the cases to which it is to be extended, in such a way as to orientate with clarity the authority that must evaluate, thus, if the successive requests are truly identical to the already decided case. Thus Araujo Oñate, 2011, 408. This refers mainly to the approach provided by the Constitutional Court in the ruling C-821 of 2001 with which there is the attempt to define a viaticum for the rulings of the higher judiciary that must be respected by every judicial order. 222 J.P. Sarmiento Erazo, ‘El recurso extraordinario de unificación jurisprudencial ¿hacia la instauración de un juez de casación en lo contencioso administrativo?’, http://revistas.javeriana.edu.co/index.php/vnijuri/article/viewFile/14317/11526. 223 L. Montanari, ‘La tutela dei diritti nelle nuove costituzioni dei Balcani occidentali’, in M. Calamo Specchia et al. (cur.), I Balcani occidentali. Le costituzioni della transizione, Giappichelli, Torino 2008, 161-202.

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pressure of international law and in particular that of the European Union on countries that intended to become full members, was enormous.224 Albania, with no administrative tradition, represents a clear confirmation of the tendency of the States of Central-Eastern Europe to modulate their jurisdictions to adapt to EU normative systems. In the years antecedent to its independence from Turkey, in 1912 it had not developed any administrative system and, even if the influence of the French model was strong, there was no Council of State nor a decentralised organisation. During the Socialist period, up until 1990, a pyramidal structure of administrative power had taken root but there were no rules to limit the exercise of the action of public powers in relation to the principles that in the meantime had been affirmed in the rest of Europe. The vision still remained that of an administrator that acts for political goals and not in respect of the principle of legality, in the western sense of the term. The situation began to change only with the constitutional reform of 1988, when a public body was placed at the service of public interest and no longer with a political function. The principle of legality was affirmed225 also in relation to the careers of public employees.226 The first general law on proceedings in Albania was in 1999, with law n. 8485, when the most important reforms took place.227 Administrative activity was identified with the production of acts that manifested the will of the authority and they were divided into three forms, administrative, collective or individual acts, administrative and public contracts and real and executive acts.228 The law affirmed the obligation of public bodies to respect universal canons of proceedings, transparency, participation229 and to conclude the proceedings in a short time.230 The procedure was of an inquisitorial type, constructed on the model of a trial with a meticulous regulating in all the phases. The principles affirmed were in substance those of legality, independence, transparency, equality, proportionality and reasonableness. The final 224 Cfr. I. Nachev, ‘Bulgarian administration under the condition of joining the european administrative space (EAS)’, in L. Matei et al., European administrative space – Balkan realities, Edituria Economica, Bucarest 2011, 240-256; T. Sever et al., ‘Protecting Human Rights Thought Fundamental Principles of Administrative Procedures in Eastern Europe’, Law and Economics Review, Vol. 5, n. 4, 2014, 249-275. 225 Art. 4 Cost. 226 Art. 107 Cost. 227 Among which law n. 8549 of 11 November 1999 on the public sector. Law n. 8480 of 27 May 1999 on the functions of the governing bodies of the State and public authorities, law n. 8503 of 30 June 1999 on the right to access information regarding public documents, law n. 8510 of 15 July 1999 on the extra-contractual responsibility of administrative bodies, law n. 8457 of 11 February 1999 on secrets of state, law n. 9887 of 15 July 1999 on personal data protection. 228 Cfr. Art. 2 (Administrative Activity), Administrative Procedure Code del 1999. 229 Art. 93 et seq. law 1999. In ruling n. 30/2006 of the Albanese Constitutional Court, proceedings initiated without a notification to the interested subject is to be considered unconstitutional due to the fact that the right to be informed on the start of administrative proceedings constitutes one of the fundamental principles of administrative action. 230 M. Apelblat, ‘Reflections on reforms of administrative procedures in Western Balkans’, www.respaweb.eu/.../Modernising+Administrative+Procedured, 40-49.

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deadline for the adoption of a measure was 3 months from the start of the proceedings, except for cases where a different deadline was established by special laws. An interesting characteristic of the Albanese experience is given by the possibility, based on the Spanish model, that an authority adopts provisional measures with efficacy until the adoption of the final decision.231 The law envisaged also a discipline of silence, but the formulation of the rules, widely criticised by Albanese jurists, rendered the institution inapplicable.232 The law, in essence, was modelled on the idea of the defence of the rights of the administrated first in proceedings and then in a lawsuit, that respond, in essence, to the same rules of participation, independence and transparency. Since the end of the 1990s Albania has therefore had an administrative system that conforms to the rest of Europe, respectful of the principle of the separation of powers, legality and with the constitutional guarantees of the due process of law, that are to be applied to both the procedural and trial phase, with an internal and external system of legality checks. The adaptation to the EU principles has been constant and progressive. In the biennial 2012-2013 two new laws were approved, respectively on the organisations of administrative trial233 and the civil service.234 In 2015 there was a new version of the Procedure code,235 with the specific aim of further aligning the internal system to the rules diffused in the countries of the European Union and render administrative action more efficient. In this further season of reform Albania tried to re-organise its own administrative authorities in order to eliminate the various malfunctions that still slowed down proceedings.236 The main modifications to the previous layout regarded in particular the typologies of administrative acts, that could be issued in electronic form or in the guarantee act, a preliminary obligation by the authority to adopt a successive measure, when this was envisaged by the law. The number of administrative contracts was amplified, which included the substitute contract. This was very similar to the procedural agreement in Italy which had the function of permitting the adoption of a more slim-line tool in comparison to an administrative act. It was intended to be used when public interest, in the relationship between citizens and public administrations, could be safeguarded better with a contract form rather than an administrative act. The new previsions permitted the stipulations of 231 E. Methasani Cani, ‘Administrative law in Albania’, in R. Scarciglia (cur.), Administrative Laws in the Balkans, Cedam, Padova 2012, 37 et seq. 232 Ivi, 39. 233 Law n. 49/2012 of 03 May 2012. 234 Law n. 152/2013 of 30 May 2013. 235 Law n. 44/2015 of 30 April 2015. 236 Law n. 30/2015 of 2 April disciplined once again the organisation and the functioning of local bodies, with law n. 115/2014 it revisited the territorial and administrative division of local governments in 12 districts and 61 municipalities and eliminated the sub-division in communes, reducing thus the number of base territorial administrators from 373 to 61 units. The municipalities thus became the base level of local governments, and cities and villages constitute the administrative subdivisions within the municipalities that have in common historical, economic and social traditions.

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administrative contracts also between public authorities and regulated the modalities of the negotiation relationships and the effects produced. A further novelty included the regulating of extra-judicial conciliation procedures related to administrative procedures, which were not admissible in cases in which they could harm public interest or the legitimate interest of a third party.

2.10.1

The Extended Coding

The approach is similar in Bulgaria, where the unitary disciplining on procedures and administrative trial is contained in the Administrative Procedure Code, adopted in 2006 and recently modified in 2014.237 Bulgaria however had organised a system of administrative courts that had been operative since 1885, abolished and then reinstated in the twentieth century, in the aftermath of the war conflicts and at the end of the period of communism. The Supreme Administrative Court was constituted in 1907 and there was a judicial control against administrative acts, excluding the exceptions envisaged by law. The first forms of regulation of the administrative procedure was derived by case law, among which the necessary participation of the addresses in the final measure.238 In the space of a few years however, in consideration of the regressive role of judiciary in the Soviet period, the need was felt to regulate administrative action in more detail. The current approach is an organic regulating of the matter that includes also mechanisms for challenging acts. The principles are substantially the same. However the discipline is characterised by an original set up and the constant focus that emerges in all the code with regards to the defence instruments against the exercise of public powers. The structure of the law, that today totals 307 articles, plus additional rules, states the traditional principles of administrative action, to then immediately deal with participation and the rules to avoid a conflict of competencies. The Administrative Procedure Law separated the two procedures, to be followed in relation to the typology of the administrative acts: 1) a normative administrative act,239 characterised by rules directed at an indefinite number of subjects, 2) a general administrative act,240 related to a number of identified subjects by virtue of particular characteristics and 3) a regulatory administrative act,241 with a content that was typical of an administrative act. The silence nurtured by the public body constitutes a rejection of the petition while the

237 The first law, however, dates from 1979, n. 90 of 13 November that had introduced a general disciplining on the administrative act, with the participation of the addressees of the measures and the attemptable remedies against administrative action. 238 Cfr. Plenum della Corte suprema n. 4 del 1976. On the topic D. Zinovieva, ‘Administrative Law in Bulgaria’, in Scarciglia (cur.), 2012, 59 et seq. 239 Art. 75 APC. 240 Art. 65 APC. 241 Art. 21 Para. 1 APC.

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effect of approval is limited to only a few petitions, envisaged by specific rules and only in exceptional cases.242 Participation, access to information, communications, notifications and forms and content of the act, are distinctly subdivided according to the type of administrative act. Naturally these institutions are more meticulous and detailed for the procedures that regard individual acts. But they also present important profiles for those with a general content for which forms of participation, transparency and representation in proceedings, are envisaged. Authorities are obliged to take into consideration all the elements acquired in the investigation including those contributed by the citizens that participated in the proceedings. The code prescribes the modalities with which the problematics present in the adopted acts could be challenged that were different depending on the type of illegality in the acts. Then there were the procedures for a judicial challenge of the measures, that once again were differentiated depending on the typology of the challenged act and the regulation for compensating damage. Participation and the right of information are guaranteed also in the procedures of adoption of general administrative acts. This circumstance demonstrates the tendency of the Bulgarian system to render its model of procedure similar to the typology of interest representation of American inspiration.

2.10.2

The Espansion of the Austrian Approach

The Austrian system spread rapidly within the countries under its direct influence. In Poland the law on procedure was issued in 1928 and it imitated the approach that 3 years earlier had been adopted in Austria. It is still in force today within the code on administrative procedure of 2000. The Polish State had in the past been subjected to Austrian domination and had inherited its model. In the period following its independence, from 1981 onwards, Poland had to equip itself with an autonomous normative system and in 1923 approved the first internal law for the regulating of judicial actions against administrative measures,243 following, in essence, the principles of the procedure that had been affirmed in Austria.244 The same situation also occurred in Czechoslovakia in 1928, Yugoslavia in 1930 and Hungary in 1957. In Croatia, Serbia and Slovenia one can note a strong influence of the Austrian experience too. The first general disciplining on administrative procedure in ex-Yugoslavia was

242 Art. 58 APC. 243 M. Zukowski, History of Administration in Poland During XX Century, Varsavia 2011, 230 et seq. 244 J. Ronowicz, ‘Principles of Administrative Procedure in Poland during The Period between the Two World Wars and in the Years 1944-1960’, PWSZ IPia Lubuskie Studies, 2009, 143 et seq.; W. Jakimowicz, ‘Principes généraux de la procédure administrative en tant que garants polonais du droit des citoyens à une bonne administration’, Revue europeenne de droit public, Vol. 25, n. 2, 2013, 761-799.

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adopted in 1930.245 The law was reformed in 1956 maintaining the same initial set up to which were added other rules. The constitutional modifications of 1963 and 1974 in Yugoslavia made it indispensable to adapt the regulating of the procedure to the new rules and, with the Federal Republic in 1992 the issuance of a new law in force since July of 1997, was indispensable. Thus the administrative procedures in Croatia, Serbia, Slovenia, in the area of Montenegro, Dalmatia and Bosnia-Herzegovina, found a common disciplining based on the law of 1930 that was progressively amplified and reviewed. Besides having integrally acknowledged the approach of the meticulous regulation of each phase of the proceedings stemming from the Austrian experience, it also regulated the litigation phases, in the evident need to establish a uniform model in Yugoslavia also with regards to administrative trial. The law of 1956 contained 303 articles. With the disintegration of the federal model it was agreed that the dispositions in force in the Federal Republic of Yugoslavia would remain in force within the new states up until new internal rules were adopted, with the exception of those laws that would have been expressly prohibited by the states in their own systems.246 Each country of ex-Yugoslavia thus adopted its own rules, to which, in essence, their internal traditions were integrated with the approach of the law on administrative procedure of 1930, in the revised version of 1997.247 In Serbia, since 1922 the Council of State exercised judicial control over administrative acts and its interpretations were mandatory and were published in the Official Gazette of the country. The socialist regime abolished this function with the consequence that Serbia passed suddenly from an experience that was evolving towards the formation of administrative law to the almost total elimination of every system of legality in the exercise of public functions. In 1952 a period of reform of the administrative justice system began in ex-Yugoslavia, with the first laws of the socialist era that introduced a control of the legality of administrative action in the form of a challenge to adopted acts, that would evolve in the successive years. Thus when Serbia became independent it had a background that was leading to the development of administrative law and the law on the Yugoslav procedure was in force, in the 1997 version. In the constitutional experience of 1990 however, an authority had 245 The discipline was however more extended in relation to the Austria one due to the fact that it included also possible solutions against administrative acts and the regulation of relative procedures. Cfr. J. Jovičić, ‘Administrative law in Serbia’, in Scarciglia (cur.), 2012, 117. 246 Ivi, 119. 247 In Slovenia, the law was passed in 1999 but not yet recorded yet effective implementation. On the topic, Cfr. P. Kovač, ‘Modernizing Administrative Procedure Law in Slovenia as a Driving Force of Efficient and Good Administration’, NISPAcee Journal of Public Administration and Policy, Vol. 4, n. 2, 2011, 39-66; B. Brezovnik & J. Toplak, ‘Administrative Law in Slovenia’, in Scarciglia (cur.), 2012, 164. In 2014 it was approved a new law in Montenegro and in 2015 in Macedonia, which shows the tendency to affirm the application of the general rules on the procedure to all the administrative activities limiting the exceptions to restricted cases.

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the function of the mere execution of acts and the laws adopted by the central government. Thus it was not an independent and neutral structure that acted to satisfy the interests of citizens. In Serbia the principle of legality was affirmed with the reform of 2006.248 In reality it was only with the recent provisions of law no. 18 of 2016 that the idea of a general regulation on procedure began to spread and that was to be applied in a general way for the formation of administrative decisions. The principle of predictability of administrative action emerged. It reinforced the idea of legality, to the extent that it directed the government to respect the content of the decisions taken in previous cases, where they related to similar issues. The participatory model was expanded with new and more incisive rules concerning communication of the start of proceedings to interested parties. A significant change concerns the provision of a guarantee note with which an authority must communicate the content of the decision before the final measure and remains bound to respect the pre-announced orientation. For many sectors, including the final time of the procedure, the institution of procedural silence, the application of contractual guarantees, communications and electronic notifications, the general regulation could face different rules by virtue of special laws. Instead in relation to silent consent and some aspects of contractual guarantees, the 2016 law requires further implementing rules. In Croatia the establishment of administrative courts dates back to 1923.249 In this tradition administrative law and procedural rules, above all with regards to the protection of citizens in proceedings, were already part of the legal system even before a uniform procedure for the whole territory was imposed by the federal Yugoslav government.250 However it was only after its independence, with its own constitution, that in 1991 the tradition that the Yugoslav experience had suffocated, was able to re-emerge. Entrance into the European Union and the administrative reforms that have followed in recent years stimulated the evolution of the regulation of procedures,251 marked by the approval of the general law of 2009. The legislation in reality has a subsidiary nature due to the fact that its application is generalised only with regards to the principles of legality, proportionality, publicity, independence, efficiency, transparency and the protection of personal data, while the specific aspects of procedures can find a different regulation in sectorial laws. In general, the investigation permits any means of proof, including testimonies, documents, expert opinions and inspections.252 Participation however is limited when an authority shows that the facts are already sufficiently decisive, on the bases of official information or when

248 249 250 251

Art. 198 Cost. Cfr. D. Djerdia, ‘Administrative Law in Croatia’, in Scarciglia (cur.), 2012, 76. Ivi, 75. G. Benacchio, ‘Croazia: dalla Federazione Jugoslava all’Unione Europea’, Zbornig Pravnog Pravnog Fakulteta Sveucilista U Rijeci, Vol. 22, n. 1, 2001, 305-320. 252 Art. 54 General Administrative Procedure Act 2009.

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it is necessary to adopt urgent measures for the protection of sectors of particular importance, such as public health or property, but always if a public interest, worthy of protection, exists. This hypothesis, strictly interpreted, entails the possibility that an authority could act without communicating the start of proceedings and, by reflex, without any contribution by the addressees of the final measure. The final decision generally is individuated in the administrative act but, for special proceedings in sectors singled out by the law, it could take on different denominations. Its formal contents are indicated by the law in a very detailed manner and due focus is placed on the duty to give reasons, intended as a prerequisite for the protection of rights.253 The rules in force in Croatia, thus, deal in particular with the three phases of the procedure, the initial phase, the investigation and the final phase, to then focus on the disciplining of appeals that could be produced against the final act. It is a detailed regulation of the various moments of administrative action, clearly inspired by the Austrian experience, within the tradition that had already affirmed itself from the start of the twentieth century and that seeks to ever more reinforce the efficacy of internal administrative action, closely linked to the affirmation of the principle of legality.254

253 Arts. 96-98 General Administrative Procedure Act 2009. 254 Djerdia, 2012, 113.

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3 3.1

Access and Transparency Secrecy and Disclosure in Administrative Action. The Models

Observed from the viewpoint of transparency the relationship between public authorities and citizens is marked by three models, in continual evolution and transformation. The first is based on the principle of the secrecy of acts, documents and information held by the public administration, an expression of the state of subordination of individuals in relation to the exercise of public power. Up until recent developments, secrecy represented the general rule to be applied in State-society relationships, so much so that it was considered by a part of juridical thinking as an element of interpretation of the principles that regulate administrative action.1 In fact, prior to 1978 in France administrative secrecy was among the principle models for the protection of public interest. Likewise in Italy, where up until 1990 the rule of secrecy was seen both as a principle of administrative action as well as a duty of public employees.2 In Portugal and in Spain for many years the right-wing dictatorships imposed strict regimes of secrecy. In Austria this model dates back to 1785 and it was strengthened in 1925 with the addition of a constitutional disposition, reformed only in 1987. Similar conditions were present in Germany too. In Eastern Europe other factors led to identical results. Secrecy constituted the unique model in Romania during the communist regime and in Poland, where the Constitution of 1952 imposed the obligation of protecting State secrets and furthermore in the countries of the ex-Soviet Union. However within a few years, under the influence of international pressure and the unexpected development of rights, this way of interpreting the relationships between state and society changed. The freedom to search for, receive and diffuse information was included in the concept of freedom of thought.3 In Europe the European Court of Human Rights strengthened the principle and incorporated the right to information in that of 1

2

3

E. Gómez – Reino Y Carnota, ‘El principio de publicidad de la acciòn del Estado y la técnica de los secretos oficiales’, Civitas Revista espanola de Derecho Administrativo, n. 8, 1976, 120; G. Arena, Il segreto amministrativo: profili teorici, Cedam, Padova 1984; Rapport public du Conseil d’État, 1995, Considérations générales: La transparence et le secret, (EDCE, n. 47), 1996; J.L. Rocca, ‘Publicidad y Secreto en la Administración Pública’, Revista de Derecho Público, n. 4, 2003, 24 et seq.; P. Haridakis, ‘Citizen Access and Government Secrecy’, Saint Louis University Public Law Rev., 2006, 3 et seq. In Italy, the administrative secrecy found its regulation in Art. 15 of the Unique Text of state civil employees, D.P.R. 10 January 1957, n. 3. Cfr. G. Arena, ‘L’accesso ai documenti amministrativi’, in Idem (cur.), La trasparenza amministrativa e l’accesso ai documenti amministrativi, Il Mulino, Bologna 1991, 40 et seq.; M. Clarich, ‘Diritto d’accesso e tutela della riservatezza: regole sostanziali e tutela processuale’, Dir. proc. amm., n. 3, 1996, 430 et seq. Art. 10 ECHR, makes possible the introduction of limits only by legislative provisions and in so much as they are indispensable for the protection of national security, territorial integrity, crime prevention, health and morality, the reputation and the rights of others, and the impartiality of judicial power.

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4 5

6

7

Cfr. Sdruení Jihoeské Matky v. Czech Republic, [2006] ECHR. In the EU, the right to access the documents of the European institutes is guaranteed both by the law provisions of the Treaties (Art. 255 CE and, now, Art. 15 TUE), as well as the Charter of Fundamental Rights (Art. 42) and the relative modalities and conditions of exercise are established by the regulation n. 1049 of 2001. On the topic R. Caranta, ‘Il diritto di accesso alle informazioni nel diritto europeo’, Riv. it. dir. pubbl. com., 2003, 870 et seq. The link between freedom of expression and the right to access information is affirmed in America by the Inter-American Court on human rights, on the bases of art. 13 of the American Convention on Human Rights. Cfr. Claude Reyes y otros v. Chile, Inter American Court on Human Rights (2006). On the topic, E.A. Bertoni, ‘The Inter-American Court of Human Rights and the European Court of Human Rights: A Dialogue on Freedom of Expression Standards’, European Human Rights Law Review, n. 3, 2009, 332 et seq. “We Adolphus Frederick by the Grace of God King of Sweden, Gothland and Wenden etc. etc. Heir to Norway and Duke of Schleswig-Holstein, etc. etc. Proclaim: “That, having considered the great advantages that flow to the public from a lawful freedom of writing and of the press, and whereas an unrestricted mutual enlightenment in various useful subjects not only promotes the development and dissemination of sciences and useful crafts but also offers greater opportunities to each of Our loyal subjects to gain improved knowledge and appreciation of a wisely ordered system of government; while this freedom should also be regarded as one of the best means of improving morality and promoting obedience to the laws, when abuses and illegalities are revealed to the public through the press”. Cfr. P. Hogg, ‘Ordinance Relating to Freedom of Writing and of the Press (1766)’, in J. Mustonen (cur.), The World’s First Freedom of Information Act, Kokkola 2006, 8-17. On the origins of the Swedish law, see W. Hansen & S. Munk, ‘Findes der en fælles nordisk tradition for offentlighed i forvaltningen’, Nordiskadministrativt tidsskrift, 1999, 242-258.

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In these countries however the model of maximum transparency had a different genesis compared to the Swedish experience.8 Three models emerge from this diachronic observation, that although were generated in different jurisdictions, represent three different phases of a unique evolutionary process of the relationship between state and society that today is in continual transformation all over the world.

3.1.1

The Transition Towards Transparency

If one excludes the Swedish case all the other experiences demonstrate to have effectuated, only in recent times a gradual passage towards the models of a more advanced administrative transparency. In an intermediate phase of the evolutionary process the right to access to the acts of proceedings was in fact mainly recognised to the addressees of the final provision. In the time frame that stretches from the principle of secrecy to that of open government, a model of reserved access was formed, characterised by the existence of a personal and qualified right to receive information from public administrations. In this phase the States did not recognise the principle of generalised access but rather the possibility to know acts and documents on which the administrative action was founded if it would damage the interests of the claimant. The model represents a direct corollary of the principle of defence against administrative action that was developing in the aftermath of the French Revolution and that would not have been able to be exercised without the possibility to access information and documents. In France, Germany, Italy and Spain the right to individual access affirmed itself alongside the evolution of the procedure and constitutes the natural consequence of the amplification of judicial control on the abuse of power. In fact the expansion of the investigation powers of the administrative courts permitted a control on the rationality and the coherence of administrative action. On having attributed importance to the proceedings and consented to participation, it was inevitable that the principle of the freedom of information would affirm itself, due to the fact that it constitutes the necessary condition for the defence of citizens’ interests in proceedings. Thus there was the passage from secrecy to transparency in conjunction with the reinforcement of judicial review and the expansion of the inspection power by an administrative judge. In these experiences, only successively, and for many aspects in an extremely different way the principle of open government affirmed itself.9 8 9

A. Ardagh, ‘Freedom of Information: What Does it Mean for Australians?’, Australian Library Review, n. 8, 1991, 371. J.L. Piñar Mañas, ‘Seguridad, transparencia y protección de datos: el futuro de un necesario e incierto equilibrio’, Laboratorio Alternativas, Fundación Alternativas, 2009, 31-33; V. Zeno-Zencovich, Freedom of Expression: A Critical and Comparative Analysis, Routledge-Cavendish, Abingdon (UK) 2008, 11 et seq.;

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In the Swedish experience transparency did not originate as a direct evolution of the means of judicial action or procedural protection against administrative acts but rather constituted the direct application of the idea of democracy that had established itself in this country, with a particular focus on the freedom of the press and information. It is not a coincidence in fact that the Swedish law of 1766, that today still constitutes the normative framework in the defence of the transparency of administrative action, regulated the freedom of the press first and foremost in the moment of the acquisition of information. Dating from the middle of the seventeenth century in Sweden it was understood that alongside the principle based on which the press could not be subjected to censorship, it was equally important that the free diffusion of thought should be founded on the acquisition of as much information as possible. This circumstance today constitutes the nucleus of freedom of thought, as diffused in contemporary constitutionalism. The idea in essence is that when the press begins to analyse the way in which public functions are carried out, it should therefore be able to freely access all the information. Based on this principle and as a direct consequence, the duty for a public body to guarantee the transparency of their own actions, was affirmed. This was regulated in Norway in 1970 and in Finland in 1951.10 In the United States this approach was not immediately acknowledged at the time of the Administrative Procedure Act, in 1946, due to the fact that the choice, in that historical moment, coincided with the adoption of the second model, strictly functional to the idea of participation that was being affirmed in this country. Only after 20 years did a change in the policies of transparency come about via the approval of the Freedom of Information Act of 1966. However also within the reserved access model the United States adopted a more extensive form that amplified the category of data accessible to applicants up to including information11 and even acts that were in the process of being elaborated.12 Hence, already starting from the first set up of the Administrative Procedure Act, American administrators were obliged to make known to applicants aspects of ongoing proceedings that normally were not permitted in the jurisdictions that had regulated the first forms of the right to access.

10

11

12

A. Florini (cur.), The Right to Know. Transparency for an Open World, Columbia University Press, New York 2007, 1-16. A. Bohlin, Offentlighetsprincipen, Norstedts Juridik, Göteborg 2010, 17 et seq.; O. Jørgensen, Access to Information in the Nordic Countries. A Comparison of the Laws of Sweden, Finland, Denmark, Norway and Iceland and International Rules, Nordicom, Göteborg 2014, 10-13. Cfr. W. Parks, ‘The Open Government Principle: Applying the Right to Know under the Constitution’, The George Washington Law Review, 1957, 1; G. Arena, ‘La legge sul diritto all’informazione e la pubblicità degli atti dell’amministrazione negli Stati Uniti’, Politica del diritto, n. 3, 1978, 279 et seq. Napolitano, 2007, 166-169.

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3.1.2

Access and Transparency

The Hidden Differences

Contemporary constitutionalism is marked by the absolute diffusion of the right to know and as a consequence, the amplification of transparency.13 In Western Europe, this right appears in Spain,14 Belgium,15 Austria,16 Greece,17 the Netherlands,18 Portugal19 and Switzerland.20 It exists in Africa,21 in Latin America,22 Oceania, Asia23 and in the area of the ex-Soviet Union.24 In Angola freedom of information was added to that of the press in 2010, with the modification of Article 40 of the Constitution.25 In the Dominican Republic it was introduced with the Constitution of 2002, Article 8 and in the Philippines, with Article 3, of the Constitution of 1987. With the exception of Portugal and Austria normally the Constitutions affirm the principle and leave to legislation the specific regulating of proceedings and the exception cases.26 Some countries such as Finland27 and Norway,28 despite the widespread tradition towards transparency that characterised their relative legal experiences, deemed it necessary to include the right to know in their constitutional rules too. The same rules can be found in the countries undergoing a transition process in Central-Eastern Europe29 and Latin 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

Cfr. J.M. Ackerman & Irma E. Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’, Admin. L. Rev., Vol. 58, 2006, 97-98, 112-113. Art. 20.1.d. Spanish Constitution of 1978. Art. 32 Belgian Constitution of 1993. In Art. 20 of the Austrian Constitution of 1987, the questions that can lead to the waivering of the general principle of transparency are envisaged. Art. 5A Greek Constitution of 2001. Art. 110 Dutch Constitution of 2002. Art. 268 of the Portuguese Constitution contains rules articulated also in relation to questions that can lead to the exclusion of the obligation of transparency. Art. 16 Swiss Constitution of 1999. As well as Art. 32 South African Constitution of 1996, Art. 41 Ugandan Constitution, Art. 29 Ethiopian Constitution, Art. 38 Rwandan Constitution and Art. 7 Constitution of Guinea. And further, Art. 8 Constitution of Ecuador, Art. 6 Mexican Constitution, Art. 43 Constitution of Panama of 2004 and Art. 2.5 Constitution of Peru. Art. 48 Thailand’s Constitution. And further Art. 50 Constitution Azerbaijan, Arts. 25 and 30 the Constitution of Tajikistan and Art. 30 Constitution of Uzbekistan. The law on access to administrative documents is n. 11 of 16 August 2002 but on the same day law n. 10/2002 on State secrets was also approved. Austria expressly affirmed the principle of transparency and the rejection of State secrets in Art. 20 of the Constitution of 1987. Art. 12 Finnish Constitution of 2000. Art. 100 Norwegian Constitution of 2004. Thus as always in Norway, the question was regulated by the Freedom of Information Act n. 19 of 19 May 2006 that modified that of 1970. Art. 23 Albanian Constitution of 1998, as well as Art. 41 Bulgarian Constitution of 1991, Art. 38 Croatian Constitution, even if limited to journalists, Art. 17 Czech Constitutional of 1993, Art. 44 Estonian Constitution, Arts. 37 and 41 Georgian Constitution, Art. 61 Hungarian Constitution, Art. 6 Macedonian Constitution, Art. 34 Moldavian Constitution, Art. 61 Polish Constitution, Art. 31 Romanian Constitution, Art.

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America. Where there is no expressed constitutional rule the importance of this fundamental principle is acknowledged by the Supreme courts and by Constitutional Tribunals. Internal provisions regulating administrative transparency are to be widely found and in most cases through legislative Acts. The principle of transparency seems therefore to have widely affirmed itself in the world. However, despite this apparent uniform trend, the diachronic reconstruction of the experiences highlights a different reality, due to a vast array of factors. On the one hand there is the legal experience of France, followed by Spain, Italy and Germany and the other countries that were influenced by these jurisdictions. On the other hand the Swedish model of open government was diffused in the United States, Canada and New Zealand. In these countries the idea that a public body was bound to release information only to those who were involved in administrative proceedings was quickly abandoned, permitting thus the idea of a relationship between citizens and public authorities based on a model of maximum openness. However in the open government model too differences can be noted, in particular between the Scandinavian experience and that of the United States, whose effects can still be felt today.30 Where the principle was modelled on the idea of an individual right, the experiences demonstrate numerous difficulties in granting a total transparency of administrative action. The diachronic and synchronic observation highlights that also in countries that adopted legislative Acts that oblige public administrators to disclose a vast amount of information, there are many elements that delay and obstruct the radical affirmation of the right to know.

3.2

The Open Government Model

Transparency is in essence conditioned by the different degrees of erosion of the idea of administrative secrecy. The differences between the approaches are rather radical. In its widest acknowledgement the model of open government represents the evolution of the democratic systems: it permits the diffused control of the operate of a government and authorities, with the aim of preventing corruption. It ensures the participation of citizens, making them more aware of public decisions and reinforces the legitimisation of authorities, being that they operate as glass houses at the service of the community. Its origin is due to a vast array of factors. In Sweden the year 1766, in which the law was approved, coincides with the total weakening of the monarchy and the radical

30

10 Serbian Constitution, Arts. 26 and 45 Slovakian Constitution of 1992, Art. 39 Slovene Constitution, Arts. 100, 104 and 115 Latvian Constitution of 1998 and Art. 25 Lithuanian Constitution. Cfr. G.F. Ferrari, ‘L’accesso ai dati della pubblica amministrazione negli ordinamenti anglosassoni’, in G. Arena (cur.) 1991, 117 et seq.

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advancement of parliamentarism. The legal tradition was modelled in a different form in comparison to that of the United Kingdom. The individual was placed at the centre of the legal system and there was no separation between the State and society, a circumstance that was characterising instead the other jurisdictions. Enlightenment was able to affirm with force the thinking that was only to develop in other countries years later: that is to say that the State is placed at the service of the individual. On this approach we can find the most advanced form of the Welfare State in Sweden.31 The age of Liberty, as is traditionally defined the period spanning the years 1719-1772, was marked in this country by the parliamentary model, rare at the time. The middle class was in power as had happened at the dawn of the Liberal State. In that period the Swedish assembley was divided into four groups, composed of the nobility, the clergy, the middle classes and the farmers. Each group could express a vote. No group, however, could boast a role of pre-eminence in relation to the others that could form alliances with each other. This is what happened in 1756 when the Caps (Mössorna) Party, that opposed the traditional approaches sustained by the middle classes and the entrepreneurial world, gained power. The innovative political current managed to impose its ideas that were sustained by the more attentive Swedish exponents of enlightenment: the relationship between the State and society was to be founded on the centrality of the individual and this phenomenon could not have come into being without the right to criticise. The freedom of the press however was not only to be protected from preventive censorship but its origin had to be guaranteed, that would have been restricted without the right to know.32 In the majority of the historical reconstructions this extraordinary innovation is linked to Cydelius, the Swedish illuminist and the success obtained by his thinking in that period.33 Cydelius affirmed with force the need to abolish censorship of the press in a modern state. In his approach malfunctions and corruption depended essentially on the division that existed between public power and citizens. This separation would not only be resolved via parliamentarism and political representation but also via society’s effective participation in public action.34 Citizens therefore had to co-participate in political activities. Truth could not stem from only a few or worse still directly from political power. Truth was to be sought via thinking and this was only possible via the free circulation of thinking. Every form of censorship would have impeded the expression of a thought that in turn would have blocked the formation of a new idea. The circulation of ideas, their discussion and 31 32

33 34

Cfr. A.S. Bruno, Contesto scandinavo e specificità svedesi. Contributo allo studio del diritto scandinavo, Aracne, Roma 2012, 16. Cfr. T. Pöysti, ‘Scandinavian Idea of Informational Fairness in Law – Encounters of Scandinavian and European Freedom of Information and Copyright Law’, in P. Wahlgren (cur.), What is Scandinavian Law? Social Private Law, Scandinavian Studies in Law, Vol. 50, 2007, 225-228. Cfr. J. Manninen, ‘Anders Chydenius and the Origins of World’s First Freedom of Information Act’, in J. Mustonen (cur.) 2006, 18-53. Ibidem.

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the free criticism of the action of public powers were to constitute the fundamental elements of a new way of intending the relationship between State and society. Hence, truth does not exist if it is not formed via the free discussion of ideas. Freedom of the press is among the main cornerstones of modern constitutionalism. In Sweden however, it was affirmed not only over 20 years before the French Revolution but it also represents a case in which the ideas of freedom were imposed in such a radical manner as to be considered a unique example of the right to access information. It was born not only as a principle for the free expression of thought but also with the contextual abolition of censorship and the profound conviction that only via freedom of the press was it possible to build a new relationship between public power and society. This thinking imposed itself with force also in relation to transparency, due to the fact that secrecy would have hindered knowledge and no discussion of ideas would have been truly free and shared. Society would not have been able to participate ideally in public action. Hence, based on this idea, in Sweden the 1766 law established an efficacious system of archiving, organised in such a way as to allow anyone to access the data in the possession of a public body. The model was based on the idea that an archive is in effect a public asset. An authority therefore must manage information in a rational way, putting the documents in its possession at the disposal of anyone, in order to permit a rapid vision of acts to whoever made a request. In this experience access is equivalent to transparency. Citizens have the possibility of obtaining authentic information on the activities of public bodies, on their research on which they base or are in the process of basing their decisions without it being reduced or controlled by such an authority or other public authorities.

3.2.1

The Nordic System and the Internal Acts

In the Scandinavian countries the model developed along two lines: one that regarded an administrative procedure in which a citizen manifests a specific interest in participating and the other regarding access to data for the generalised control on the exercise of public functions.35 On the one hand, administrators are bound to organise themselves to give to the citizen all the information on general topics,36 while on the other hand they have the duty to release specific acts and documents related to individuals involved in ongoing proceedings. The common origins of the two moments that mark the Scandinavia experience entail however an important effect that would affirm itself successively in other systems: that is to say the fact that immediately the individual exercise of the right to access 35

36

Also in the Scandinavian experiences, as in the United States and in the majority of the world, the right to access constituted the first form of transparency. However, these experiences are characterised for having rapidly overcome the initial approach to the much more widespread principle of open government. This principle was to assume a particular valence in environmental questions, marked by the constant necessity to acquire information from a public body above all of the levels of pollution in specific territories.

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includes also information in the possession of administrations and is not only limited to acts and documents that have already been shaped.37 The typical content of transparency extends to any typology of data that could be of interest to citizens, in a manner that is independent from the fact as to whether or not proceedings are in progress. In Finland, Norway and Sweden, incomplete documents are accessible to the public unless they carry out a preparatory function for the authority.38 With regards to this point the possibility offered by Danish and Icelandic legislation is much wider that also includes documents that are in the process of being elaborated.39 However there are exceptions that regard the formation procedure of administrative will. Generally the exceptions of the principle of transparency regard reasons of national security, financial and monetary political matters, economic and public interest, privacy protection, international relations, public inspection and control activities, the prevention and suppression of criminal acts or the protection of animal and plant species, with a list that traditionally is considered compulsory. In Sweden the regulating of the exceptions of transparency is extremely detailed and reduces the discretionary power.40 Greater discretionality is reserved in relation to other exceptions, including those related to the confidentiality of industrial and commercial information, state security and foreign politics that have in all the Nordic countries almost the same generic content.41 Based on the Swedish law there is the right to access internal information when it constitutes an important element for the final decisions and only after the decision has been assumed.42 This is a natural consequence of the link between the reasons of the decision and the information requested, that becomes indispensable only in the moment successive to the adoption of a final measure. This is what happens in relation to factual circumstances or professional evaluations. In Denmark it is possible to access this type of information if it is useful in understanding the reasoning followed by an authority, including cases in which there is the need to clarify mere factual circumstances, such as the methods utilised in the calculations. This possibility is instead excluded in Norway.43

37 38 39 40

41 42 43

Pöysti, 2007, 229-236. Cfr. N. Herlitz, Förvaltningensoffentlighet i nordisklagstiftning, Tidsskrift for rettsvitenskap, 1971, 257-313; Pöysti, 2007, 222-224. Cfr. Jørgensen, 2014, 20-21. Art. 12 Freedom of the Press Act. Only Sweden gathered all the restrictions to information in a legislative act, while in Finland, Iceland, Denmark and Norway, the exceptions are found in sectorial law provisions, often not in line with the Tromsø Convention. Normallay, the exceptions to the rule of transparency leave always ample margins of discretional evaluations to authorities. Cfr. K. Eggen, Ytringsfrihet, Cappelens Forlag, Oslo 2002, 30 et seq. Cfr. S. Zetterström, Offentlighetochsekretess, Liber AB, Malmö 2010, 12 et seq. Art. 7 Freedom of the Press Act. On these aspects, see Cfr. N.E. Øy, Kommentarbok til offentleglova, Cappelen Damm Aka, Oslo 2015, 154 et seq.

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Some differences regard external acts, for which however none of the problematics that afflicted countries such as France or Germany exist in relation to the analysis of the effects of the final measure. In Scandinavia all external documents are accessible to citizens. The exceptions never regard the importance of the interest of the claimant but only specific aspects of administrative action. In Sweden a draft of a document cannot be made public only if it was sent to another authority to obtain an opinion, while for the written response public access is permitted.44 In Finland preparatory documents exchanged between an authority and a private operator can remain secret. The Norwegian law allows exceptions for documents that an authority obtains from subordinate bodies or from other departments of the same authority and that are only aimed at the preparation of other acts. The Icelandic law envisages an exception for documents exchanged between municipal institutions and communal organisations, in relation to financial negotiations with the State.45 The Scandinavian experience is characterised in reality also by the swift times in which administrative transparency is guaranteed. In Finland and in Sweden access to information is granted immediately, even if a certain delay could be inevitable if there is the need to review a copious quantity of documents. Notable differences can be noted with regards to the transparency strictly linked to political aspects. In Denmark there is the tendency to keep secret the information that concerns decisional procedures linked to general acts. Instead the Finnish law guarantees a high level of access to information related to political choices before the adoption of decisions.46

3.2.2

Transparency the United States

The model had a different set-up in the United States, where it was affirmed in 1966 with the Freedom of Information Act, followed by the Government in the Sunshine Act in 1976 and the Electronic Freedom of Information Act of 1996.47 From the United States it then spread to Canada, where the regulating of administrative transparency was incorporated into the Access to Information Act of 1983, in New Zealand in the Office Information Act

44 45 46 47

Art. 9 Freedom of the Press Act. Jørgensen, 2014, 16-18. On the topic T. Ahvenainen & T. Räty, Offentlighetslagstiftningen, Finlands Kommunförbund, Helsinki 2000, 57 et seq. Successively one can note the approval of the ‘Honest Leadership and Open Government Act’ of 2007 to arrive finally in 2009, after other reforms, to the presidential directive of 8 December that started the ‘Open Government Iniziative’. In 2016 was approved the Foia Improvement Act. Cfr. B. Sullivan, ‘FOIA and the First Amendment: Representative Democracy and the People’s Elusive. “Right to Know”’, Maryland Law Review, Vol. 72, n. 1, 2012, 1-84. Furthermore, T. Tankersley, ‘How the Electronic Freedom of Information Act Amendments of 1996 Update Public Access for the Information Age’, Adm. Law Rev., Vol. 50, 1998, 421 et seq.

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of 1982, in Australia in the Freedom of Information Act of 1982 and in the United Kingdom with the Freedom of Information Act of the year 2000. Compared to the Scandinavian evolution, in the American experience the principle of transparency was generated above all by the pressure exercised by the mass media in three fundamental stages of its historical evolution.48 Therefore its origin does not stem from a rigid interpretation of freedom of information and the press, as had occurred in Sweden, but rather from the need for ever increasingly transparency in administrative action that emerged in the aftermath of well-known political events.49 In reality the initial forms of open government were founded in the United States on the constitutional precept of the due process of law, in so far as the knowledge of information constituted the antecedent logic for the exercise of the right to a defence in adjudication proceedings.50 In fact once the participation in proceedings was affirmed, there could not be an efficacious defence if an agency did not allow vision of acts and documents on which its action was based. It was due to the Supreme Court that in the United States transparency in administrative action found its application in the adjudication procedure, in the form of reserved access51 and before the Administrative ProcedureAct of 1946. The effects of this approach were felt when the APA in essence extended the same principle to rulemaking. However in the original set-up of the fundamental law on procedure the duty of administrators to guarantee transparency was modelled on the reserved access model, which would be affirmed some years later in Europe. The problematics of the New Deal, with the consequential growth in the powers of the agencies, had thus linked the transparency of administrative action to the narrow procedural model with the envisaged guarantees of participation.52 Yet in those years a general principle of transparency was not taken into consideration. The possibility to access acts was allowed only in favour of those that had demonstrated an interest in participating in rulemaking. However in 1946 there was no particular pressure to affirm the idea that the modern democratic system would request the generalised access to information, acts and documents of a public authority.53 Even Landis, who had promoted the development of a government of tech-

48 49 50 51 52 53

Cfr. Comba, 1992, 269; Ferrari, 1993, 421 et seq. Cfr. J. Shkabatur, ‘Transparency with(out) Accountability: Open Government in the United States’, Yale Law and Policy Review, Vol. 31, n. 1, 2012, 80-140. Cfr. Ferrari, 1991, 117 et seq. Cfr. C. Harlow, ‘Freedom of Information and Transparency as Administrative and Constitutional Rights’, Cambridge Y. B. Eur. Legal Stud., Vol. 2, 1999, 285-302. Cfr. W. Funk, ‘Public Participation and Transparency in Administrative Law – Three Examples as an Object Lesson’, Adm. Law Rev., Vol. 61, n. 171, 2009, 171-198. In the vigour of the first approach of the Administrative Procedure Act, the possibility of access was excluded in cases in which it was necessary to protect public interest. There was however no normative indications what was to be intended as public interest nor did the rules envisage mechanisms of judicial remedy in the event of a rejection of the request for access. The right to information could in other words, be evaded via a simple recall to public interest.

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nocrats and the reduction of spaces left to political power, in reality had not hypothesised the diffused control on administrative action. In fact the APA had for the most part disregarded his ideas. The ample possibility of participation granted by the law and the amplification of judicial review would have represented evident limits to the actions of technocrats, that Landis would have wished freer from democratic and judicial control. From the date of its adoption and up to the sixties the APA did not record any particular success. It was to be the successive cultural revolutions, the atrocious experience of the Vietnam War, the Watergate scandal and the dark aspects of the assassination of President Kennedy, that stimulated a general mistrust in public power and increased the demand for transparency in administrative action.54 It was in these years that the current model of open government in the United States was set up. The administrative agencies became implicated in this general movement of mistrust in public power. The first signs of the reform stemmed from the judicial rulings above all as a consequence of the laws in the environmental sector. Indeed it would be precisely the motivations of the judgments of the American judiciary on environmental matters to greatly extend the requirement of standing, which then produced the resulting effects on the legitimatisation of procedural participation. According to the Supreme Court if an agency for the protection of the environment exists, it is from this circumstance that the right of citizens to take a legal action against the agency derives if harm to the environment is caused by the administrative activity itself. In other words if a specific function was conferred to an agency by a Statute, every citizen held the power to contest the unlawfulness of the administrative action in relation to the function carried out. Once having affirmed the widespread standing, the step to admitting the same right in proceedings would became rather short, and easy to make. The agencies became in fact the first supporters of this model in so far as procedural participation would have constituted an optimum system for stemming the risk of witnessing one’s own choices being subjected to judicial review. The needs of groups would have been analysed and resolved in the elaboration phase of the rules and thus would have notably reduced the risks of successive judicial actions and the relative interference of the courts. The conflict between citizens would have found in the procedure the natural venue of confrontation and resolution via constant negotiation that in the end would have led to a shared choice. In 1966 the Freedom of Information Act overturned the model of reserved access that had affirmed itself up to that point55 and reinforced the idea of participation in rulemaking. 54 55

Sullivan, 2012, 14. The Freedom of Information Act allows the generalised control on administrative action. The FACA, a less known act and emanated almost at the same time, contains further openings in relation to the acquisition of information stemming from advisory bodies different from authorities. The Sunshine Act, which is applied to federal agencies such as the Federal Trade Commission and the National Labor Relations Board,

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The procedure, seen as a direct consequence of the standing widely acknowledged to all, allowed a system of participated administration where public interest was not established in a unilateral way by the agencies, but became the meeting point of the various implicated interests. Everyone had the right to participate in rulemaking and by reflex agencies had to make the acts, documents and information in their possession accessible to everyone.

3.2.3

Evolution and Divergences with the Swedish System

The normative approach conferred in 1966 seems somewhat similar to the model that had affirmed itself in Scandinavia. However a diachronic analysis highlights a substantive difference, from which stem various elements that distinguish the American system from the Swedish tradition. The turning point towards transparency did not constitute the effect of pressure by intellectuals and political forces that, as in Sweden, had recognised in freedom of information a fundamental element of the democratic development of the country. This principle was instead the direct consequence of the wide standing guaranteed by American courts in relation to the growth of the functions of agencies that was taking place in the New Deal. Participation in proceedings and maximum transparency would have constituted the counter limits to the advancement of administrative power and the progressive regression of the most profound ideas of American liberalism.56 American juridical thinking began to attribute a vast array of positive effects to the contemporary idea of transparency. In the common law experiences one knows that the boundary between the public sphere and the private sphere is not so pronounced as in civil law traditions: the advantages of free accessibility to data were analysed in a much wider conceptual context and in relation to the effects that in general leads to the concrete adoption of the principle of transparency. It is for this reason that among the main arguments in favour, one finds the efficacy for citizens that the diffusion of information produces in economic and financial sectors when they acquire goods, services or financial products. Knowledge in relation to the respect of security standards or the tests carried out allows consumers to effectuate more informed choices and avoid risks. This circumstance determines the possibility to allocate resources in a much more efficient way.57

56

57

requires that the meetings of such institutions for commercial transactions must be public, unless they do not fall into the category of cases subject to exemption. Cfr. Stewart, 1975, 1671-1676. Cfr.C. Coglianese et al., ‘Transparency and Public Participation in the Federal Rulemaking Process: Recommendations for the New Administration’, George Washington Law Review, Vol. 77, n. 4, 2009, 924-972; Sullivan, 2012, 53. R.G. Vaughn, ‘Transparency in the Administration of Laws: The Relationship Between Differing Justifications for Transparency and Differing Views of Administrative Law’, American University International Law Review, Vol. 26, n. 4, 2011, 969-982.

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One can note that this idea, albeit widely shared in western democracies, was utilised in the American experience among the argumentations in favour of administrative transparency. In other jurisdictions instead, it was to have a much wider appeal in totally different aspects, such as food safety or the protection of the consumer that, although regarding transparency, are attracted to other disciplines and in other sectors where there are not argumentations in favour of the right to know. In the Unites States hence this idea is cyclically reinforced in crisis periods, generally due to or political events or economic and financial recessions or in cases of threats to national security. Thus another important aspect widely exalted by American juridical thinking came to light: the need for greater transparency with regards to operations in financial markets. The expressed need tries to prevent that American citizens could be induced to buy products without adequately knowing the effective risks related to their purchases nor exactly comprehend the provenance of the bonds that they buy. This occurs cyclically in the periods subsequent to major financial crises when important pressures on administrative authorities to obtain greater transparency, are exercised58 also in rulemaking. The need to know the data held by public bodies goes back to the phase in which the rules are set up, which must also be designed to allow further transparency and the draft regulations that the authorities intend to approve are made public, to allow the groups concerned to present their observations and to participate in the final decisions.59 A transparent action reduces the risks of corruption or that the rules can be adopted by officials that have a personal interest in proceedings. These are all needs that were expressed and reinforced over the years by American society but which however remained distant from acquiring that radical theoretical approach developed in Sweden, that had led to the radical idea that there could be no freedom without freedom of information.

3.2.4

Procedural Aspects

In the United States the principle of transparency functions via two modalities; on the one hand, there are generalised legal disclosures which oblige agencies to publish a vast array of information; on the other hand, exists the right for anyone to request access to further data. On the bases of the Freedom of Information Act each agency must publish in the Federal Register the information that concerns all the various aspects of its activity. Hence a detailed description must be given of internal organigrams, the names of the persons in charge to whom all the petitions must be addressed, the functions executed by individual 58 59

Sullivan, 2012, 79; M. Fenster, ‘The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of A Visible State’, U. Pitt. L. Rev., Vol. 73, 2012, 443-503. Cfr. E.W. Welch, ‘The Relationship between Transparent and Participative Government: A Study of Local Governments in the United States’, International Review of Administrative Sciences, Vol. 78, n. 1, 2012, 93115.

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bodies, the respective competencies, the regulations adopted, the general rules emanated as a consequence of the delegated power, the interpretative dispositions and all the specific indications on the modalities of participation in proceedings.60 The system to guarantee the effective application of the model is particularly efficacious: the lack of publication determines the impossibility to consider in force the disposition or the rule that was not published. The direct consequence of this approach is that nonpublication entails the inefficacy of the acts successively adopted by the agency.61 In other words if an agency approves a rule without having preventively published it in the Federal Register, the following acts would not only be invalid, but also devoid of efficacy and hence devoid of the possibility to have a bearing on subjective legal positions. Here, one can immediately note the difference that exists with other countries. The violation of the duty of transparency is dealt with in the United States in a similar way to the missing publication of a normative act in the Official Gazette. It is as if the disposition was not in force and could be dis-applied by any authority, unless the agency was not able to demonstrate that the interested parties were however aware of the project that had not been published.62 In addition citizens can request further acts and documents63 among which there are the final decisions adopted by agencies, although there is a difference in relation to countries that have adopted the reserved access model. This information is in fact made available to anyone without any limitation connected to the subjective legal position and without any exercise of discretionary power by the agency.64 The limits concern instead the matters subtracted from the rule of open government65 for which authorities are generally bound 60 61

62 63

64 65

Cfr. E. Carloni, ‘La qualità delle informazioni diffuse dalle amministrazioni negli Stati Uniti’, Gior. dir. amm., n. 11, 2002, 1232-1238. L. Barra Caracciolo, Funzione amministrativa e amministrazione neutrale nell’ordinamento USA. Profili comparativi con l’esperienza italiana, Giappichelli, Torino 1997, 65-114; C. Coglianese, ‘The Transparency President? The Obama Administration and Open Government’, Governance, Vol. 22, n. 4, 2009, 531. Sec. 552 Administrative Procedure Act. The Supreme Court demonstrated to have always interpreted the rules on access in an extensive manner. Cfr. Department of the Interior v. Klamath Water Users Protective Ass’ n. 532 US 1 (2001) where the attempt to prevent the acquisition of the requested information why the data was not drawn up by the agency but by a Native American tribe, was not approved. On the topic, Arena, 1978, 279-328. Likewise in the United States, as in the Nordic Countries, one can note the ban on access that include commercial or financial or confidential secrets. In addition, the memorandum of an agency or internal acts between agencies, that would not even be available in a lawsuit between the agency, the public subject and the citizen, are also subtracted from the right to access. This refers to confidential acts due to the fact that there is the tendency to safeguard the independence of the administrators in their political choices and the freedom of the defensive approaches in lawsuits. In this context, also the exceptions in relation to the information gathered for trial reasons are to be interpreted. In this case however it is necessary, for the authority, to demonstrate that the issuance of the acts could hinder the correct exercise of penal action, wrongfully compress the right to a fair trial, constitute a wrongful violation of the right to confidentiality, reveal the identity of confidential sources, reveal investigative techniques or put the lives at risk of the personnel of the agency. The last exceptions regard acts with which an agency controls the regular functioning

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Administrative Action and Procedures in Comparative Law to carry out comparative evaluations related to national security,66 industrial and commercial secrets,67 in addition to information regarding internal rules and procedures.68 Further limits stem from special rules.69 There are no limitations instead with regards to internal acts70 when they are linked to the final decision and permit a reconstruction of the logical process followed by the public administration in formulating the final decision.71 Normally further typologies of exceptions are identified via presidential orders.72

66

67

68

69

70 71 72

of financial institutes and those of a geological and geophysical type that regard the mineral patrimony. Exemption 5 is not limited to information that would be in reality privileged in a particular controversy, but extends to all those of routine or that normally cannot be available to a party in the trial. Cfr. Federal Trade Commission v. Grolier, 462 U.S. 19 (Sup. Ct. 1983) – Taylor v. Sturgell, 128 U.S. 2161 (Sup. Ct. 2008). The director of the CIA has discretion to designate sources of intelligence andmethods that can be protected from public disclosure in accordance with the laws on national security Cfr. Sims v. Central Intelligence Agency, 471 U.S. 159 (Sup. Ct. 1985). Recordings in the possession of federal beneficiaries or contracting parties are not accessible in accordance with the Freedom of Information Act, even if the documents refer to the contract of the concessionaire with a federal agency. Cfr. Forsham v. Harris, 445 U.S. 169 (Sup. Ct. 1980). Exemption 6 requires that an agency operates a balancing between the possible violation of privacy and the interest of the public in the disclosure. In this case, the Court ordered the disclosure of the information in a form that would not have permitted individuating the parties involved. Cfr. Department of the Air Force v. Rose, 425 U.S. 352 (Sup. Ct. 1976). In another case, the Supreme Court established that companies could not object to the existence of the right to privacy that could constitute an exemption in accordance with Freedom of Information Act. Cfr. FCC v. AT & T Inc., 131 U.S. 1177 (2011). The right to privacy, disciplined by the ‘Privacy Act’ of 1974, normally, enjoys a particular protection by American Courts. In carrying out comparative tests, the agencies are asked to balance with particular caution public interest and privacy and evaluate the importance of one in relation to the other. Cfr. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (Sup. Ct. 1989). In various cases, the interest of privacy was deemed to be prevalent. Thus, in the face of the request of data formulated by a lawyer to obtain information on the deported of Haiti that would have regarded also names and addresses, the Supreme Court considered the interest of their privacy to be prevalent, even if the lawyer would have wanted to use the information to safeguard their interests. Cfr. Department of State v. Ray, 502 U.S. 164 (1991). The right of privacy extends in fact to all the information of a personal nature, as for example one’s nationality. Cfr. Department of State v. Washington Post Co., 456 U.S. 595 (Sup. Ct. 1982). And furthermore, it was deemed that the right to personal privacy should be extended to data relating to a deceased person. When public interest in a FOIA request reflects an attempt to demonstrate that government officials acted in an improper way in the exercise of their functions, the claimant must provide the evidence of such impropriety, which is sufficient to convince a reasonable person in order to overcome the right to personal privacy. Cfr. National Archives and Records Administration v. Favish, 541 U.S. 157 (Sup. Ct. 2003). Also acts of the agencies sent to the government can be requested, in accordance with Freedom of Information Act. Cfr. Chrysler Corporation v. Brown, 441 U.S. 281 (Sup. Ct. 1979). Cfr. NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Sup. Ct. 1975). Cfr. Coglianese, 2009, 534-535. In recent years, the political direction attempts to extend administrative transparency. On the topic K.E. Uhl, ‘The Freedom of Information Act post-9/11: Balancing the Public’s Right To Know, Critical Infrastructure Protection, and Homeland Security’, American University Law Review, 2004, 269 et seq. e K. Clark, ‘“A New Era of Openess?”: Disclosing Intelligence to Congress Under Obama’, Constitutional Commentary, 2010, 313 et seq.

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3.2.5

Access and Transparency

Balancing Test and Elements in Regression

The end of the Eighties marked a new turning point in the United States with regards to transparency and participation, with the introduction of the costs-benefits test for rulemaking procedures. In essence with Order n. 12291 adopted by President Reagan, the idea that each rule should contribute an improvement to the social structure and could not be adopted if the costs appeared superior to the benefits, was introduced. The Order imposed a preliminary analysis of projects under discussion by the agencies, to be carried out by the Office of Management and Budget (OMB). In other words a new presidential power in rulemaking was imposed.73 The initial project had such diffused opposition due to the fact that it would have determined an excessive expansion of presidential control on the agencies. The President could have exercised his influence nullifying all the interventions of private groups in rulemaking. The Order did not become a Statute. However the successive President Bill Clinton emitted a new provision that for the most part produced the requisites of the precedent adopted during the Reagan presidency, as occurred during the Bush administration.74 It is paradoxical that the Order adopted by Reagan did not envisage any rule regarding co-participation in costs-benefits analysis procedures conducted by the OMB75 whose data was not accessible to the public. Some forms of transparency were introduced only successively and after notable political pressure during the Clinton and Bush presidencies. Today some American authors view this system as a return to the theories of Landis on the government of technocrats. Others see in the Orders an attempt to free the procedure for the formation of rules from the complexity that had come into being due to the continual pressures from groups of power and the consequential slowing down of normative action.76 A veto from the Presidential Office regarding the sustainability of rules or the modifications proposed by pressure groups would have easily curbed the insistence of citizens. The same effect would have been produced had an agency wished to introduce rules that would not have stood up to the cost-benefits analysis. Even in this situation a possible deadlock phase in rulemaking would have found a solution via the Presidential Office. In recent years rulemaking had become too complex and particularly slow. According to some authors the main responsibility of this malfunction was caused by transparency

73 74 75 76

Cfr. R. Murphy, ‘Enhancing the Role of Public Interest Organizations in Rulemaking Via Pre-Notice Transparency’, Wake Forest Law Review, Vol. 47, 2012, 681-704. For an in-depth analysis on the Bush administration see Coglianese, 2009, 533, 538-540. Cfr. Barra Caracciolo, 1997, 37-61. An attentive reconstruction is in Ferrari, 2006, 324-326. See also T. Erkkla, Government Transparency: Impact and Unintended Consequences, Palgrave Macmilla, New York 2012; F. Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy, Farrar, Straus and Giroux, New York 2014.

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Administrative Action and Procedures in Comparative Law and participation, due to the way in which they had developed in the previous decades.77 Others believed that these problems were caused by the interference of the presidential offices via the costs-benefits analysis.78 Courts instead demonstrated a clear tendency to amplify further the applicative cases of transparency, which became in the United States one of the fundamental principles that regulated administrative action.79 Today American juridical thinking seems to want to give even greater space to secrecy above all with regards to political decisions.80 Many voices support the need to reform the FACA and the Sunshine Act in the parts that do not envisage spaces for secrecy that in the opinion of many need to be guaranteed in political decisions.81 This tendency, favoured by many American authorities, is opposed by the presidential policy that instead pushes towards new spaces of transparency and the reduction of the discretion with which the agencies often limit the model of open government. In the contemporary idea that is spreading in comparative law, open government represents a model that offers many advantages: it reinforces the democratic control of public power, sustains free and loyal competition, stimulates commercial development, reduces the risks of corruption, allows analysing the data of public management, the call for tenders, the modalities of the performance of services, reinforces social responsibility and democratic participation, that in turn improves political action and makes it more efficacious and impartial. However in the last years the tendency was marked by various attempts of regression, even in the country that generated it. In Sweden the new rules of the Freedom of the Press Act and the Public Access to Information and Secrecy Act of 2009 envisage many exceptions, such as for example damage to national interest or the need for international co-operation, with outlines so undefined that they confer to the agencies a discretionary power of veto that they did not have in the previous legislation. In 2013 Denmark, which participated actively in the EU initiatives on the transparency of political processes, approved amendments to the law on access that limited the cases of administrative transparency. The recent events of international terrorism have pushed countries to limit the information accessible to anyone. These last facts demonstrate that the model of open government, in the manner in which it was generated and developed in the Scandinavian and American experiences, is experiencing a current phase in which the idea of a total opening out to information seems

77

78 79 80 81

Cfr. A.S. Roberts (cur.), Too Much Transparency? How Critics of Openness Misunderstand Administrative Development: The Fourth Global Conference on Transparency Research, 2015, https://ssrn.com/abstract =2601356. Vaughn, 2011, 979-980. Ivi, 970 et seq. On the topic, Roberts 2015, 12. Vaughn, 2011, 970-976.

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in regression. Agencies regain decisional spaces in which they are bound to analyse the needs of transparency through a balancing test.

3.3

The Reserved Access Model

The third model is linked to the idea of the protection of individual rights and it spread in comparative law simultaneously with the advancement of the right to defence in proceedings. The approach was born in the moment when there was not yet any particular attention focused on the procedural phases and the majority of the institutes of administrative law were reconstructed around the administrative act. When in the successive years the decisional procedure was amplified via the contribution of citizens, the duty to permit access to administrative documents was extended also to the phase antecedent to the final measure. France represents the country in which this model constitutes the principle element in which transparency is guaranteed.82 The law of 1978 n. 753 links the obligation of authorities to provide information and documents related to proceedings that could have a negative bearing on the citizens’ legal position.83 It is in essence the same set-up that regulates the duty to give reasons. Article 9 however envisages the duty to publish directives, instructions, circulars, notes and ministerial responses that entail an interpretation of the law or a description of administrative procedures, as well as all the documents. The recent codification in 2015 maintained the same set up. The idea that an authority must make known all the data of its own activity in application of the principle of open government, was not affirmed in France. Instead there was a different model that, except for the narrow category of acts referred to in Article 9, recognised the existence of a right of access exercisable only by a party concerned in proceedings84 after demonstrating requirements for obtaining the access.85 The model regards therefore acts and documents and not general information regarding administrative action.86 The traditional set-up does not change in essence not even after the codification of 2015. Access is always allowed after the approval of the request when an interest is 82

83 84 85 86

Cfr. with the ruling of the Conseil d’État n. 228830 of 2002 the right to individual access was acknowledged among the fundamental rights of a citizen. Cfr. B. Lassere et al., La trasparence administrative, PUF, Paris 1987; D. Borgonovo Re, ‘Il diritto di accesso ai documenti amministrativi in Francia’, in Arena (cur.), 1991, 161; Y. Gounin & L. Laluque, ‘La réforme du droit d’access aux documents administratifs’, AJDA, n. 6, 2000, 486-494. S. Rose-Ackerman & T. Perroud, ‘Policymaking and Public Law in France: Public Participation, Agency Independence, and Impact Assessment’, Columbia Journal of European Law, Vol. 19, 2013, 223-309. On the topic R. Ramabud, ‘L’access aux documents administratifs et l’election presidentielle’, RFDA, n. 3, 2015, 598-607. See B. Delaunay, ‘La réforme de la participation du public’, AJDA, n. 6, 2013, 344-350. Costa, 1993, 343 et seq.

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Administrative Action and Procedures in Comparative Law demonstrated,87 can be denied for a vast array of reasons88 and cannot be extended to preparatory acts.89 The main applicative problems regard the concept of an administrative document and the distinction with information. In Italy access is excluded in cases where it concerns an act that does not exist yet, that it to say, that has either not been formally adopted or is still in the process of being elaborated.90 Some typologies of internal acts are excluded from the right to access information.91 The only exceptions are environmental issues for which, in relation to EU countries, a specific EU directive exists and for other States a somewhat consolidated international tendency exists too. It is a sector in fact where the idea of transparency has prevailed the most to permit a social control over the quality of the environment. In this model authorities were bound first and foremost to verify that the applicant could have the standing, which in the majority of cases is linked to the right to participation in proceedings. In Spain, at least up to the recent modifications, there was an attempt to understand if the constitutional provisions could have a direct application without the intermediation of law. Many applicative difficulties arose in relation to the interest that could entail the approval of the instance of access and, by reflex on the reasons of exclusion.92 In the German system the reserved access is permitted only to the participants in an administrative proceedings and within the limits of that which was necessary for the protection of their own legal positions. This is the federal set-up. Some Landër successively equipped themselves with their own legislation relating to administrative transparency. In Italy and Spain there have been similar experiences of totalitarian regimes in which secrecy constituted the general rule. At a constitutional level, Italy however is not marked by the existence of a right to transparency. This principle is connected to that of good performance and impartiality in Article 97 of the Constitution rather than being considered an individual right to access information93. The first regulating, in the form of reserved 87 88 89 90

91

92

93

Art. 311 – 3 order n. 1341 of 2015. Art. 311 – 6 order n. 1341 of 2015. Art. 311 – 2 order n. 1341 of 2015. It is expressly Art. 22 subparagraph 4 of the law of 7 August 1990, n. 241 to establish that ‘Information in the possession of a public administration that does not have the form of an administrative document is not accessible’. The Italian administrative judge sustained that the ban continues to be upheld also if the administrator, to evade the request, is obliged to extract the data from other acts. Cfr. Consiglio di Stato, Sez. IV, 20 April 2012, n. 2362, inwww.giustizia-amministrativa.it. The Council of State affirmed that in the ambit of documents subtracted from access, also acts drawn up by lawyers or by professionals carrying out tasks conferred by an public body is to be included. Cfr. Consiglio di Stato, sez. VI, 30 September 2010, n. 7237. Cfr. M. Álvarez Rico, ‘El derecho de acceso a los documentos administrativos’, Documentaciòn Administrativa, n. 183, 1979, 103-133, that underlines the importance of the constitutional data for the internal affirmation of access as a fundamental right. Transparency is in fact functional both as a correct exercise of administrative action and represents the system for the verification of impartiality. Cfr. C. Esposito, ‘Riforma dell’amministrazione e diritti costituzionali dei cittadini’, in Idem, La Costituzione italiana. Saggi, Cedam, Padova 1952, 245-262. On the topic also R. Villata, ‘La trasparenza dell’azione amministrativa’, Dir. proc. amm., 1987, 529 et seq. and in an

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access, is rather recent, with the law n. 241 of 7 August 1990. Italy was inspired by the French and German experience and the duty of authorities to provide information on their action assumed the specific characteristics of a performance to be effectuated on the specific request of the interested party that is bound to demonstrate the existence of a qualified interest.94 In Spain instead transparency was dealt with in the Constitution of 1978 which prescribed the right to access to information in order to outline the passage from a dictatorial regime to that of a constitutional – democratic system.95 In this model the subject is represented by acts and documents and does not extend to other types of information. Normally requests that regard acts in preparation and not completed or related to rulemaking or general administrative acts of planning and programming, are not admissible. The authority approves or rejects the petition and this measure can be challenged. In the majority of countries that follow this approach there are reasons for which the exercise of the right to access is not permitted and that regard matters of private and public interest. The first category is usually related to secret documents or that regard national defence, currency and credit, public security, fiscal and customs procedures and lawsuits. Private interest is guaranteed in cases of the protection of privacy, industrial and commercial secrecy, medical secrecy or in cases in which it is demonstrated that the exercise of the right to access information could entail a prejudice.96 The model is characterised by the presence, in some occasions of a public body, such as the Commission for access to administrative documents instituted in France97 and similar institutions in Italy and Portugal and in other occasion with the functions of regulations, as in Germany, the United Kingdom and Spain, to which citizens can turn to in order to overcome possible hurdles placed by the authority.98 A general obligation does

94 95

96 97

98

analogous sense G. Arena, ‘Trasparenza amministrativa’, Enc. giur., Agg. Vol. IV, Istituto della Enciclopedia Italiana, Roma 1995, 1-13. More recently M.R. Spasiano, ‘I principi di pubblicità, trasparenza e imparzialità’, in M.A. Sandulli (cur.), Codice dell’azione amministrativa, Giuffrè, Milano 2011, 83-96. Cfr. M. Occhiena, ‘I principi di pubblicità e trasparenza’, in M. Renna & F. Saitta (cur.), Studi sui principi di diritto amministrativo, Giuffrè, Milano 2012, 141-148. Cfr. A. Aguilera Fernández, La libertad de expresión del ciudadano y la libertad de prensa o información. (Posibilidades y límites constitucionales), Comares, Granada 1990, 7-13; R. Bustos Gisbert, ‘El concepto de libertad de información a partir de su distinción de la libertad de expresión’, Revista de Estudios Políticos, n. 85, 1994, 261-289. Cfr. E. Carloni, ‘La qualità delle informazioni pubbliche. L’esperienza italiana nella prospettiva comparata’, Riv. trim. dir. pubbl., n. 1, 2009, 155-186. Cfr. A. Lallet & J.P. Thiellay, ‘La Commission d’accès aux documents administratifs a trente ans’, AJDA, n. 26, 2008, 1415-1420; J.P. Leclerc, ‘Le rôle de la commission d’accès aux documents administratifs’, Rev. fr. adm. pubbl., n. 1, 2011, 171-179. In England it is the Information Commissioner’s Office that regulates the conflicts that in this question constantly arise between the need for privacy, on the one hand, and the right to information on the other hand.

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not exist for the public powers to disclose and make accessible all the information that concerns administrative action.

3.3.1

Forms in Expansion: A Comparison between the Germany and United Kingdom Experiences

In Germany too the law allows the exercise of the right to access in cases in which the need the knowledge of acts and documents is necessary in order to uphold or defend one’s own interests. Naturally the demonstration does not necessitate a particular specificity, due to the fact that the citizen only could hypothesise the importance of the documents and acts on the ongoing proceedings.99 Hence the authority could reject the request only in cases in which it appears evident the absence of any connection between the document requested and the interests on which the final act could have a bearing. Dutch jurists interpreted the rules on the right to access in a manner somewhat restrictive and tended to exclude the duty to allow the viewing of documents outside the ambit of the application of the law on procedures.100 The rules of Article 29 of the German law in fact permitted authorities to deny access when the exercise of the right could have a bearing on the regular execution of their tasks. The rule prescribes a series of exemption cases connected to the protection of public interest. Along the same lines are to be interpreted the bans on the acquisition of documents when their knowledge could determine negative consequences for the general interest of the Bund or the Land or due to the fact that the secrecy is dictated by the matter or if forbidden by other rules.101 Further limitations regard the privacy of third parties which could lead to the partial viewing of acts. These are exemptions for particular categories. The choice of the authority, if one excludes the cases in which access is prohibited by law, is discretionary in relation to each individual case. Therefore once again, it was proportionality was the guiding principle for administrative action that had to also take into account the eventuality that an illegitimate denial could entail being sentenced to pay compensation for the damage incurred. German juridical thinking criticised the general approach with regards to both the significant discretionary power attributed to an authority and above all due to the fact

99

Cfr. A.G. Debus, ‘Gebühren für Informationen nach dem Informationsfreiheitsgesetz des Bundes – Aktuelle Probleme, Erhebungspraxis, Rechtsvergleich und Reformvorschlag’, Das Deutsche Verwaltungsblatt, 2013, 9. 100 Cfr. P. Stelkens et al., Verwaltungsverfahrensgesetz – Kommentar, § 29, 657, C.H. Beck, München 2014, in whose opinion the duty to guarantee access to documents does not extend to the activities of private law nor to that void of external importance. 101 Cfr. M. Klöpfer & K. Von Lewinski, Das Informationsfreiheitsgesetz des Bundes (IFG), DVBl, 2005, 1277; F. Schoch, Informationsfreiheitsgesetz: IFG Kommentar, C.H. Beck, München 2016, 88 et seq.

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that the right is conferred only to identified and recognised citizens and is not extendible to stakeholders of collective and diffused interests.102 The general law on the freedom of information that came into force in January 2006 envisaged the general disclosure of a series of acts.103 The application of the new rules however entailed numerous applicative problems.104 In the United Kingdom, over the last decades, courts’ decisions has amplified the duty to allow transparency in administrative action, understood as an element of fairness that constitutes the direct consequence of participation.105 However this experience is characterised by the constant search carried out above all by English judiciary for a balance between the need for confidentiality, arising from the traditional problematics of Crown Privilege106 and the progressive adaptations to the rights stemming from the EU and international system.107 Up until the Freedom of Information Act of 2000 the English experience was marked by a significant resistance towards transparency.108 A first step was taken in 1985, with the Local Government Act (access to information) that gave citizens the possibility to access the acts of the meetings of local authorities and other important documents. This was followed by the Charter of Citizens in 1991 and a Code of Access to Governmental information in 1994. English juridical thinking however had manifested various perplexities, also following the Freedom of Information Act whose rules did not appear particularly incisive.109 The rules established the duty to publish acts requested by a specific petition. Secrecy became generally prohibited unless there was a good reason to not accept the request. However the Freedom of Information Act did not require that the denial of access be expressly motivated, that is indicated rather as a suggestion and not an obligation.110 The exemptions were divided into absolute and not absolute, a circumstance that delegated to the authority the task of verifying the presuppositions for approving the request. Indeed

102 Cfr. G. Nolte, Die Herausforderung für das deutsche Recht der Akteneinsicht durch europäisches Verwaltungsrecht, H. Siedentopf Speyer & E. Laux, Die Öffentliche Verwaltung, 1999, 364 et seq.; Schoch, 2016, 185 et seq. 103 Before the federal law of 2006, four Länder had adopted a law in such sense: Brandebourg, law of 11 March 1998; Berlin, law of 16 October 1999; Schleswig-Holstein, law of 10 February 2000; Rhénanie-du-NordWestphalie, law of 1 January 2002. Cfr.M. Klöpfer & K. Von Lewinski, 2005, 1277. 104 Cfr. Debus, 2013, 9. 105 Lastly R. Moseley v. London Borough of Haringey, [2014], UK SC 56. 106 Ferrari, 1991, 117 et seq.; Caine, 2011, 116-117. 107 Cfr. R. Austin, ‘The Freedom of Information Act 2000 – A Sheep in Wolf’s Clothing’, in J. Jowell & D. Oliver (cur.), The Changing Constitution, Oxford University Press, Oxford 2004, 404. 108 Caine, 2011, 115. 109 See R. Austin, ‘Freedom of Information: The Constitutional Impact’, in Jowell & Oliver (cur.), 2004, 319371; T. Prosser, ‘Administrative Procedure and the Protection of Citizens’ Rights: Report from the United Kingdom’, in A. Massera (cur.), Le tutele procedimentali: profili di dirittocomparato, Jovene, Napoli 2007, 71-98. 110 Cane, 2011, 130.

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English courts still carry out the test of public interest immunity in which it is somewhat complex to guarantee the rights to transparency.111 In essence authorities of the United Kingdom possess a significant discretionality in analysing and deciding the cases in which the exercise of the right to access is permitted or not.112 However even regardless of the prudent approach provided by the Freedom of Information Act, the English judiciary has manifested in recent times a notable openness towards transparency.113 When the interest is of a procedural nature it is always fairness that constitutes the guiding criterion of the reasoning undertaken by the courts: the guarantees of Crown Privilege are reduced and are to be analysed however in a procedure in which the right to participation is guaranteed. Administrative action, in order to be fair,114 must grant that the consultation of documents can be carried out in a moment in which the proposals are still in a formative phase. The English experience, for years characterised by the tendency to not expand transparency, today manifests a notable acceleration in reducing secrecy even in those sectors traditionally covered by the exceptions of the Crown Privilege.115 Thus both in Germany and in the United Kingdom it is the principle of proportionality that constitutes the evaluation criterion that is utilised by public powers to find that complex dividing line between the needs for secrecy and the amplification of the right to know.

3.3.2

The Innovative Tendency in Spain

In the Spanish experience this model was more problematic.116 From the constitutional data emerges the possibility of a dual interpretation. We found transparency among the fundamental principles of the legal system but at the same time the regulating of the right

111 112 113 114

Conway v. Rimmer [1968] AC 910. Burmah Oil v. Bank of England [1980] AC 1090. Austin, 2007, 398. Tweed v. Parades Commission for Northern Ireland [2007] I AC 650. P.J. Birkinshaw, ‘Freedom of Information and Openness: Fundamental Human Rights?’ Adm. Law Rev., Vol. 58, n. 1, 2006, 177-218. 115 With ruling R. and Another v. Attorney General, [2015], UKSC 21 it was allowed the publication of the correspondence in 2004 and 2005 between Prince Charles, first in line of succession to the throne and some deputies and ministers on the knowledge of environmental issues. 116 The last years are marked by an intense doctrinal production on these questions. Among which M. Sánchez Morón, Derecho administrativo. Parte General, Tecnos, Madrid 2012, 75 et seq. e 443 et seq.; M.R. Del Árbol, Los secretos de Estado son ‘eternos’ en España, El Pais, 2014; S.F. Ramos & J.S. Pérez Monguió, La Ley de Transparencia, acceso a la información pública y buen gobierno, Aranzadi, Navarra 2014; E. Guichot Reina, (cur.), Transparencia, Acceso a la Información Pública y Buen Gobierno. Estudio de la Ley 19/2013, de 9 de diciembre, Tecnos, Madrid 2014; J. Meseguer Yebra, La transparencia en las administraciones publicas: el procedimiento de acceso a la información pública, Bosch, Barcelona 2014; J. Molina Molina, Por qué la transparencia (DÚO), Aranzadi, Navarra 2015; J. Luis & Piñar Mañas (cur.), Transparencia, acceso a la información y protección de datos, Reus, Madrid 2015.

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to access is delegated to legislation.117 Excluded questions regard security and the defence of the State, the ascertainment of criminal acts and privacy.118 In the period antecedent to the constitutional modifications the law of 1958 conferred to the ‘interested parties’119 the capacity to intervene in the procedure, obtain information and the relative documentation.120 After the new Constitution the main problematic brought to the attention of Spanish doctrine regarded the individuation of the content of the subjective legal position: whether it was in fact a right of access and to what extent it could be limited by the implementing legislation.121 The combined provision of the two articles, sufficiently precise, would have entailed the direct application of the principle without any necessary interposition of the law. For this reason from the years spanning from 1978 to the approval of the law on procedures n. 30/1992, the Spanish experience was marked by a heated debate in relation to the possibility to immediately apply constitutional precepts, pending the law.122 In the wake of the Constitution, law n. 30/1992 attributed the right of access in a limited way to archives and documents contained in an administrative dossier.123 In this set up the conditions of the exercise of the right to access diverge depending on whether the document requested was part of an archive or a register or if the request stemmed from an interested party of the proceedings. The phrase ‘documents contained in a dossier’ had in essence permitted authorities to be able to exclude from the obligation of transparency the documents that it did not intend to insert into the proceedings dossier.124 The obligation of transparency could be easily circumvented via the choice of acts to be inserted or not in the dossier. The interpreters tried to reduce the power of a public authority, identifying a series of documents that were to be necessarily included in a dossier.

117 Cfr. F. Sáinz Moreno, ‘Un caso de aplicación directa de la Constitución: el acceso de los ciudadanos a los archivos y registros administrativos’, Revista espanola de derecho administrativo, n. 24, 1980, 118-123; A.F. Miranda & Campoamor, ‘Comentarios al artículo 20’, in A. Villamil, Comentarios a las leyes políticas, Vol. II, Edersa, Madrid 1984, 500 et seq.; J.J. Solozabal Echevarria, ‘Aspectos constitucionales de la libertad de expresión y el derecho a la información’, Revista Española de Derecho Constitucional, n. 23, 1989, 142-144. 118 Art. 105b of the Spanish Constitution envisages that: ‘The law regulates the access of citizens to archives and administrative registers with the exception of questions that regard security and the defence of the State, the ascertainment of crimes and people’s privacy’. 119 See Art. 22 of the law 1958 as well as R.G. Rodio, ‘Riflessioni preliminari sul diritto di accesso agli atti e ai documenti nell’ordinamento spagnolo’, Amm. Pol., 1996, 511 et seq. 120 See also Art. 62 of the law of 1958. 121 On these questions Álvarez Rico, 1979, 103 that opts for the necessary intermediation of the law. See also J. García Morillo & P. Pérez Tremps, El régimen constitucional español, Vol. 2, Labor, Barcellona 1980-1982; Solozabal Echevarria, 1989, 142-144. 122 The Spanish Supreme Tribunal with ruling n. 2206 of 30 March 1999 established the direct efficacy of Art. 105. 123 Art. 37 lawn. 30/1992. 124 Cfr. J. González Pérez & F. González Navarro, Comentarios a la Ley de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo común, Civitas, Madrid 1999, 434 et seq.

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For many years thus the literal interpretation of Art. 37 of the 1992 law and the constitutional system had in essence limited administrative transparency, generally intended only for fundamental documents in a dossier of already terminated proceedings. No obligation of transparency therefore persisted in numerous cases, attributable to the circumstance that administrative action had not yet led to the opening of formal proceedings, due to the evident absence of a dossier. Preventive and preparatory acts, opinions and information were not accessible both due to the absence of an open dossier, as well as the fact that it was sufficient not to insert them into the dossier and thus a citizen was unaware of their existence. An ulterior applicative problem arose in relation to already concluded administrative proceedings, ex Article 37. This rule in essence excluded the obligation of administrative transparency in ongoing proceedings, with the only exception that an authority would be obliged to permit access to acts only to the addressee of the final measure and only with the aim of permitting participation.125 The need for a new law on administrative transparency was felt in Spain.126 Case law however continued to sustain the relevance of the contents of Articles 20 and 105b of the Constitution.127 Only recently has the Spanish system been marked by a new phase which began with the law n. 19 of 9 December 2013. The rules modified Article 37, eliminated the reference to dossiers and inserted information among the elements of access to acts, regardless of ongoing proceedings.128 Whoever presents a petition is not bound to demonstrate the interest to the request nor give the reasons.129 The exposition of the reasons is optional and its absence does not entail the rejection of the petition. However the indicated reasons could be utilised by an authority when it is obliged, due to the existence of secrecy or other conditions, to effectuate a comparison with different interests. Regarding the information that an public power is bound to disclose it was no longer necessary that such information should be related to ongoing proceedings or be contained in a document.130

125 The Supreme Tribunal, chamber III, Sec. III, of 23 May 2007, established the principle that the exercise of the right to access did not necessarily require the existence of proceedings in which cross-examination was assured. 126 Cfr. J. Meseguer Yebra, ‘El procedimiento administrativo para el ejercicio del derecho al acceso a la información pública’, Revista jurídica de Castilla y León, n. 33, 2014, 1-34. 127 See for all the Supreme Tribunals, ruling n. 3834 of 19 May 2003, in whose opinion it is the law that must try to find a balance between the two constitutional rules of Arts. 105b and 20.1.d. 128 On the topic, E. Aranda Àlvarez, ‘Una reflexión sobre transparencia y buen gobierno’, Cuadernos Manuel Giménez Abad, n. 5, 2013, 214-233; M.C. Barrero Rodríguez, ‘El derecho de accesso a la informaciόn: publicidad pasiva’, in Guichot Reina (cur.), 2014, 199-246. 129 Art. 17 law n. 19/2013. 130 Art. 18 law n. 19/2013.

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The Spanish experience demonstrates a notable amplification of the internal concept of administrative transparency.131 The 2013 rules have in fact led to a new set-up, more orientated towards the principle of open government but that however cannot be considered to be fully affirmed in Spain. Ample spaces in which accessibility to public information can be subtracted still remain.132 The authorities can refuse access in cases of opinions given inside the proceedings, expressly not permitted or information not yet elaborated. Even the optional motivation in reality represents a clear residual of the model of reserved access that does not seem to be overcome. However the discipline of transparency can also find more innovative elements in the legislation of the autonomous communities.133

3.3.3

Right of Access and Transparency: The Italian Case

In most European experiences it is possible to find legislative acts that regulate both the freedom of information and the right of access. These innovations started a debate that led to the affirmation of integrated systems to amplify the cases of right to access. Italian jurisdiction only recently has shown itself to be adapting to this European tendency.134 In Italy, from a subjective point of view, the fact that the interest to access could exist only in relation to the verification of the good performance or impartiality of the public administration was excluded; nor did it constitute an element for participation in the production processes of the rules.135 In this fact can be found the central element that differentiates the experiences of countries that chose one model rather than another. In order to oblige public powers to disclose the data in their possession, the request had to come from a subject that could demonstrate an interest that went beyond the mere knowledge of an administrative act. It is on the qualification of interest that the Italian experience distinguishes itself and is marked by a rather restrictive evolution.136 The right to access, 131 Cfr. Sánchez Morón, 2012, 75 et seq. e 443 et seq. The electronic access to data is regulated by law 22 June 2007, n. 11. 132 Aranda Àlvarez, 2013, 214-233. 133 Cfr. E. Guichot Reina, ‘El Proyecto de Ley de Transparencia y acceso a la información pública y el margen de actuación de las Comunidades Autónomas’, Revista Andaluza de Administración pública, n. 84, 2012, 100-101. Catalonia approved the law n. 19/2014, Catalan Transparency Act which expanded the administrative transparency in cases of ongoing proceedings. 134 On the topic, recently, A. Natalini & G. Vesperini, Il Big Bang della trasparenza, Editoriale Scientifica, Napoli 2015. 135 Art. 24, comma 1, lett. c) of law n. 241/90 excludes the exercise of the right to access towards administrative activity aimed at the direct emanation of normative, general administrative, planning and programming acts, for which remain firm the provisions for their formation. 136 In the first formulation, it was envisaged the possession of a simple interest for the protection of legal situations, in the first comma of Art. 22 of law n. 241/90. In Art. 2 of the Presidential Decree 352/1992, the existence of a personal and concrete interest was requested, and finally the reformed text of Art. 22 of law n. 241/90, following the modifications produced by law n. 15/2005, envisaged the exercise of the right “of all private subjects, including those holders of public and diffused interests, that have a direct, concrete and

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Administrative Action and Procedures in Comparative Law diversely to how it was conceived by the Nigro commission,137 necessitates the demonstration of a qualified interest and cannot be realised in a form of diffused control on administrative action.138 The rules are extremely general and refer to the existence of an interest for the protection of important legal positions. It is obvious that this interest should not coincide with legitimate interest. Also in the case in which the request for access is presented after the adoption of the administrative act, the legal position to be analysed by an authority however does not coincide with the position of legitimate interest.139 This circumstance induces administrators to verify the existence of an interest that in reality is not well defined.140 Italian jurists separates access during a proceeding from that of access successive to the closure of proceedings.141 The question remains always the same, which is to say to guarantee the exercise of the defence of the addressee of the final measure, even in an antecedent moment. In the first case administrative transparency is functional to participation, while in the second case it concerns the comprehension of data and documents that led to the adoption of the final measure. In cases of access after the closure of proceedings there is the problem of verifying if the authority is bound to release a copy of the documents requested if they refer to administrative acts that have become incontrovertible. In this case access is not in fact functional to participation but to the understanding of data and documents that led to the adoption of the final measure. In the case of the functional access to participation the request is normally to be considered admissible if presented by a subject who has the right to present observations in a proceeding. The interest to access thus is individuated via the ownership of the right to participation. However the generality of this approach, toned down only when the applicant is the direct interested party in the ongoing proceedings, led not only to recognise always a discretionary

137

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140 141

current interest, correspondent to a situation legally protected and linked to the document for which access to is requested.” Cfr. M. Bombardelli, ‘Nuove questioni relative alla legittimazione soggettiva e all’oggetto del diritto di accesso’, Gior. dir. amm., n. 8, 2010, 807-814; Spasiano, 2011, 84; S. Baccarini, ‘Posizione giuridico-soggettiva dell’aspirante all’accesso amministrativo: natura giuridica e implicazioni applicative’, in Sandulli (cur.), 2011, 1047. Cfr. F. Satta, ‘Imparzialità della Pubblica Amministrazione’, Enc. Giur., Vol. XV, Istituto della Enciclopedia Italiana, Roma 1989, 1 et seq. for which impartiality has an instrumental value in relation to the activity and it makes it transparent. On the topic, Carloni, 2009, 155. Italy was marked by an intense debate, developed in the aftermath of law n. 241/90 and related to the identification of the right of access as a subjective right or as a legitimate interest. The plenary meeting of the Council of State n. 16/1999 qualified the situation of legitimate interest, since the satisfaction of the request fell more or less into the willingness of the administrator. It is not always so, in reality, due to the fact that access appears rather like a right, in cases in which the claimant must protect their own legal position. For the reconstruction of the various doctrinal positions refer to A. Romano (cur.), L’azione amministrativa, Giappichelli, Torino, 2016, 936-938; F. Caringella, Corso di diritto amministrativo. Profili sostanziali e processuali, tomo II, Giuffrè, Milano 2005, 2001 et seq. Spasiano, 2011, 83. E. Casetta, Manuale diritto amministrativo, Giuffrè, Milano 2004, 405.

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power for the disclosure of documents but moreover it originated interpretating problems and the need to establish a specific procedural process for the protection of the right to access. Further difficulties regard the trade associations and bearers of diffused interests, due to the fact that the model never permits taking into consideration access as an instrument of popular inspection.142 In order to oblige an authority to disclose its data it is not sufficient to cite the objective of an organisation expressed in Statues and internal regulations with the aim of demonstrating an interest in access. In other words, organisations that protect interests of their members cannot obtain access to acts via the demonstration that the activity conducted by an authority coincides with the objectives of their organisation.143 There is the need instead to demonstrate that, via the knowledge of a specific administrative act, the organisation is capable of undertaking action to protect the citizens it represents. In Italy in 2013, alongside the right to access the right to civil access was inserted, that is not subject to any limitation with regards to standing.144 In accordance with the legislative decree n. 33/2013 an authority does not possess any power to refuse the request with regards to the legal position of the applicant or analyse its motives for matters subject to disclosure. The presumption rather than representing the exercise of the right to access, is in essence a sort of request in public interest,145 due to the fact that it is aimed at the disclosure of acts and not the acceptance of a personal petition.146 As a consequence Italian authorities are bound to publish on specific internet websites a vast amount of information regarding the matters indicated by the law. The permanence of the two different legal positions undoubtedly attempts to resolve the limits of the right to access in Italy. This approach today permits an integration and in-depth analysis of the information contained in internal acts published in accordance with legislative decree n. 33 of 2013.147 The new rules demonstrate a partial approach to the model of open government and the reserved access model represents the general principle. The cases of transparency are envisaged at a legislative level and the decision with regards to the expansion of transparency 142 143 144 145

Cons. Stato, sez. VI, 2 March 2000, n. 1122. Cons. Stato, Ad. Plen., 24 aprile 2012, n. 7. Art. 5 D.lgs. n. 33 of 2013. The sentence of the Council of State, Sec. VI, n. 5515 of 20 November 2013, confirms the relationship between transparency and good administration. 146 On the right to civic access P. Marsocci, ‘Gli obblighi di diffusione delle informazioni e il d.lgs. n. 33/2013 nell’interpretazione del modello costituzionale di amministrazione’, Istituzioni del federalismo, n. 3/4, 2013, 688; G. Cumin, ‘Il ‘nuovo’ diritto civico di accesso, con particolare riguardo alla giurisdizione del G.A.’, www.lexitalia.it, 2013; S. Ungaro, ‘La nuova trasparenza amministrativa: uno sguardo allo schema di decreto sugli obblighi di pubblicità delle PA’, www.forumPA.it, 2013. 147 The approach of the legislative decree was however strongly criticised above all in the part in which it operates the distinction between obligatory and facultative information and does not affirm the idea of the generally public nature of the data and the information possessed by a public body, that remains thus the holder of the discretional power to establish what is public and what must remain secret. Cfr. M. Savino, ‘La nuova disciplina della trasparenza amministrativa’, Gior. dir. amm, n. 8-9, 2013, 795-805.

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is left to the public powers. In Italy the trend is overturned with respect to the mechanisms adopted in most contemporary legal experiences,148 where the tendence to pre-establish with laws the obligation of transparency in administrative action is diffused, leaving to authorities the discretion to evaluate the cases in which there is the need to keep information confidential. Recent provisions introduced by legislative decree n. 97/2106 strengthen some of the previous settings: a greater connection was made between the right to access and the right to transparency. The new version of legislative decree n. 33/2013 now allows civic access by anyone, and no demonstration of any special interest if the data is not published on the net. The application can also be transmitted electronically. The provisions of legislative decree n. 97/2016 undoubtedly represent a further step towards a more advanced model of transparency. However if one compares the concerns raised on the occasion of the legislative decree n. 33/2013 with the content of the new features, it immediately becomes evident that there continues to be a lack of an attentive regulation in relation to organisational problems. The American and Swedish experiences demonstrate that the open government model requires an appropriate organisational structure, prepared to handle all the new tasks arising from the granting of this particularly challenging function. Not only must there be adequate training for officials but also the provision of tools and the related financing. They are aspects that, if neglected, would hardly make it possible to enforce the provisions of administrative transparency.

3.3.4

Latin America and Central Europe Experiences

In many cases, both due to the traditional absence of a culture of transparency as well as organisational shortcomings, the model of open government was only affirmed but not applied. The phenomenon occurred in Latin America, in Central-Eastern Europe, in Asia and in some countries of Western Europe, among which Italy and up to a short time ago also Spain. In many experiences there are exceptions to the principle of the disclosure of data. South America developed the inclination to reinforce the bond between transparency and democracy. In this idea the accessibility to acts and information was not so much functional in the direct participation in administrative procedures as rather in the knowledge of elements and data to be able to evaluate the operate of political representatives. Citizens would have had the possibility to influence the policies and exercise pressure to remove the responsibles for failures. This is the tendency that currently exists in countries undergoing a democratic transition, above all in the area of the ex-Soviet Union and CentralEastern Europe. 148 Ivi, 803-804.

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Under a similar profile, but observed from a different angle, the inclination towards transparency was reinforced by the pressure exerted on countries by international law. In Latin America Columbia shows the most innovative aspects. In this experience the Constitutional Court affirmed that freedom of expression and the right to information constituted the essential conditions so that democracy could exist in the relationship between citizens and public powers.149 The central aspect of this relationship is public information. The authorities must function first and foremost at the service of citizens.150 In other countries the situation is different. In Argentina the first opening towards open government was with law n. 25.152 of 1999.151 The rules envisaged the obligation for a financial authority to make known, to who made the relative request, every piece of information related to the action executed. In 2003 the decree n. 1172 reinforced transparency with the right for everyone to access all public information without the need to demonstrate the existence of a subjective right or an interest. The concept of information was understood in its widest meaning, with the only limit, based on the American model, that the data was already available. There was the relative inadmissibility of an access request that entailed the obligation of the public body to draw up acts and documents to form information that is not yet usable. The rules, from a technical point of view, did not present particular problems. Nevertheless for years their disapplication was constant, both due to the scant awareness by citizens of their right to access, as well as due to the fact that the authorities themselves posed many obstacles, with the effect that normally the request was only satisfied after a judicial procedure.152 In Central-Eastern Europe, at least in the legal systems, there are more or less the same principles and the same shortcomings in the implementing plan. In Albania the right to information is expressly referred to the activity of the bodies that exercise state functions.153 The principle found its actuation in law n. 8503 of 30 June 1999 that conferred the right to information to everybody after presentation of a request, but without the necessity to give reasons,154 followed in the same year by law n. 8517 of 22 July 1999, on the protection of personal data. The normative was based on the open government model but in reality the situation was different. Exceptions in the name of State secrets were constantly envisaged and there were no promotional activity, such that in 2006 almost 90% of public employees were not aware of the law on transparency and authorities did not publish any informa.

149 On the topic, García Macho, 2010, et seq. The principle is now explicitly enshrined in Art. 30, paragraph 8, of the law n. 1437 of 2011. 150 Corte constitucional T-679/2005, Conalserg Ltda. v. Canal Caracol Noticias. 151 Art. 8. 152 Cfr. Durand, 2011, 307-312. 153 Art. 23 Albanian Constitution of 1998. 154 Art. 3 law n. 8503 of 1999.

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Administrative Action and Procedures in Comparative Law tion.155 In fact the principle of transparency, despite the expressed rules, up to that point had not been applied and an attempt to take a further step in this direction was made with law n. 119 of 2014. The new rules envisaged programmes and progressive phases to access data introducing sanctions that did not exist in the previous regulations. The cases in which access to information could be excluded were expressly established in an attempt to stem the phenomenon of the widespread appeal to State secrets that in the past years had characterised the Albanian experience. In Bosnia-Herzegovina too the Freedom of Access to Information Act adopted in 2001 demonstrated a slow implementation, similar to the other countries of Central-Eastern Europe.

3.4

Assonance and Applicative Problems: The Relationship with the Discretionary Power

Excluding some specific exceptions, the majority of the experiences are marked by the duty by public powers to grant access to the interested parties in proceedings, both with regards to documents as well as to information. In fact, those who make the request often do not know the details of the documents from which they can obtain useful data, which is why the collaboration of public bodies in interpreting the requests for access and expanding them to the information concerning the acts adopted in proceedings, becomes fundamental.156 The efficacy of the rules also depends on the precision in identifying the public powers that are obliged to apply the principle of transparency.157 If doubts do not arise when the data requested is in the possession of public bodies, the case of bodies that are not formally

155 D. Banisar, ‘Freedom of Information around the world 2006. A Global Survey of access of goverment information laws’, www.freedominfo.org/documents/global_survey2006.pdf, 34. 156 In some cases, such as in Uganda (Art. 6 Access of Information Act 2005) and Kirghizistan (Art. 11, comma 3, Freedom of Information Act del 1997), one can detect indications also in relation to the accuracy, completeness and truthfulness of the information issued. In other experiences, lastly Chile and Columbia, the laws highlight the tendency to incorporate the obligations of transparency into specific guiding principles. Some laws, in Jamaica, Mexico and Japan, limit the quantity of information accessible, excluding entire sectors, with generic references such as the information detained for official purposes or connected with the functions of a public body. In Bulgaria, all the information related to social life is subtracted from the principle of transparency. On the topic cfr. J. Akerman & I. Sandoval-Ballesteros, ‘The Global Explosion of Freedom of Information Laws’, Adm. Law Rev., Vol. 58, n. 1, 2006, 85-130. 157 The identification ofthe authorities subjected to the discipline of transparency, by norm, occurs via lists in which the typologies of bodies that are bound to guarantee the exercise of the right to access, are indicated. This system is utilised in the United Kingdom, with the possibility that the Secretary of State can insert also additional public bodies (Art. 45 Freedom of Information Act 2000). It is a system that provides greater clarity but that however seems subject to an excessive political influence in the moment of the specific individuation of the bodies.

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public is more complex.158 The problematic characterised by the necessity to individuate which documents and what information can be deemed public, is widespread. In India information in the possession of citizens is also subject to obligations of disclosure if there is an expressed rule that permits the exercise of the right to access in this case. There are also many differences in relation to the typology of the public functions. Laws in force in United States and Japan regard only the executive function, even if in reality rulemaking is also included. Bodies more strictly legislative remain however excluded. While in some cases, such as in Jamaica, South Africa and Thailand, the obligation also regards the judiciary but only in relation to its administrative functions. In other cases, the legislative function is once again implicated, such as in Mexico, with rather generic formulas that render the normative previsions barely efficacious. In the majority of countries the right to access information is acknowledged regardless of the condition of the citizenry or duty to give reasons. In Kyrgyzstan it is forbidden for public administrators to ask the interested party how they intend to use the public information.159 In Uganda the reasons for the request to access information can be taken into consideration.160 Some countries, such as Sweden, allow administrators to ask for the reasons in cases in which conflicts between other and diverse interests involved in proceedings may arise. In Spain the indication of the reasons of the request is optional. The Peruvian law envisages that a request for information cannot be denied on the bases of the identification of the applicant. The principle of transparency demonstrates however a good diffusion and circulation, under this profile.161 Within some federal experiences the general regulating is applied only in relation to federal bodies. This is the case in Germany, the United States and Mexico, while in India the application of the law directly to internal States is specifically extended. However in the first case the internal States acknowledge the federal rules with their legislation.

158 The United States and Peru recall expressly the situation of public control in order to insure the respect of the principle of transparency. In the United Kingdom, the discipline is applied with greater scope to information in the possession of another body on behalf of a public authority. The approach with regards to authorities in corporate form is also different. In the United Kingdom, it is necessary that the bodies are completely of public propriety (Art. 3, comma 2, Freedom of Informaction Act 2000), while in Jamaica, 50% of the property is sufficient. Many laws extend their efficacy to private bodies that receive public finances or carry out public functions. This is the case in South Africa. The Indian law, for example is applied to bodies owned, controlled or financed by the government (Art. 2 Rigth of Information Act 2005). A greater opening can be observed in the Swedish experience that includes also information not formally detained by a public body or subjected to public control, if it was sent to the private address of a public official, provided that it refers to information however deemed to be official (Art. 5 swedish law). 159 Art. 9 Freedom of Access to Information Act del 1997. 160 Art. 6 Access of Information Act del 2005. 161 The majority of laws envisage also forms of assistance to give to applicants who are illiterate or have some sort of a disability, with a level that varies, depending on each jurisdiction.

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In many countries the tradition of secrecy is so deep-rooted as to hinder and slow down, even if with diverse modalities, the total affirmation of the right to access information. The tendency to expand the discretion of authorities on the applicability of the exceptions is still evident in several countries. The widespread delays in processing requests, the expansive interpretation of the exceptions, dysfunctions in procedures and the constant inertia, greatly reduce the application of the model. The principle of transparency as well as the right to know are conditioned by limits of administrative discretion regarding matters covered by secrecy. Normally the exceptions are included in two categories. The first regards defence, military system, international relations, public security, monetary, financial and economic politics of the government. A second group includes information related to judicial procedures, the carrying out of investigations, inspections and internal decision making.162 Laws in general divide absolute exemptions from those that are relative. In the first case administrators deny access because the diffusion of documents can entail damage to a public interest, while in the second case the discretionary space conferred to public bodies is greater. This circumstance is due to the fact that it is different generically to believe that disclosure could lead to a problem of national security, than explain the reasons for which such a risk could become real. In this second case administrators, in addition to verifying if the diffusion of information could entail damage to public interest, must also ascertain if it is not possible to reach a balance between the two counter-posed needs of secrecy, on the one hand, and transparency, on the other. In experiences more attentive to the quest for this balance the procedure requires an investigation phase in which the interests at stake, the costs to be sustained, the advantages and the disadvantages, both public and private, are examined. In Finland and in Sweden, in a similar way to Germany, the legislation on the FOIA demonstrates an explicit preference to favour absolute exemptions rather than those that are relative. In France, Italy and Spain the regimes of transparency seem positioned between the British model and the Nordic-German model. This problem is particularly felt in Australia,163 where local jurists are searching for more precise criteria for the purposes of stemming the discretion of authorities. In fact in many cases administrators limit the right to know on the bases of a not sufficiently individuated and described public interest,164 neglecting thus to carry out the test for the balancing of the interests at stake.

162 On the topic cfr. Akerman & Sandoval-Ballesteros, 2006, 101 et seq. 163 Cfr. K. Bishop, ‘Openness in Public Administration: Can the Government keep a Secret?’ Australian Journal of Administrative Law, Vol. 5, 1997, 35-47. 164 Cfr. C. Finn, ‘Getting the Good Oil: Freedom of Information and Contracting Out’, Australian Journal of Administrative Law, Vol. 5, 1988, 113-129; J. Bannister, ‘Freedom of Information: A New Era with Old Tensions’, in M. Groves (cur.), Modern Administrative Law in Australia, Cambridge University Press, Cambridge 2014, 348 et seq.

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3.5

Access and Transparency

Spreading of Models and Synchronic Perspectives

The diachronic analysis of the most important legal experiences highlights the following data: up until the first years of the twenty-first century three distinct models existed. At the end of the twentieth century there was a system of open government in Scandinavia, in the United States, in Australia, Canada and New Zealand. The phenomenon was characterised by the widespread duty to grant to anyone knowledge of documents and information. There was not the duty to give reasons of the request and an authority was not bound to analyse the motives of the interest in knowing requested data. In Spain, Germany, Italy and the United Kingdom, at least up until the end of the twentieth century, the general obligation to transparency was not envisaged but rather a system of access to acts and documents existed, aimed at procedural participation. In both the models there were exceptions, which characterised each experience. The model that still today is widely affirmed in comparative law is the reserved access model, linked to many characteristics stemming from the experience of open government. Secrecy remains as a derogation from the general rule, except for the remaining totalitarian or transitional experiences, where the western idea of liberal-constitutional democracy has not yet been established. Today the reserved access model manifests an evolution towards the principle of transparency, moving away from the idea of secrecy, and has reached the stage in which administrators have been obliged to allow the right to know when a specific interest exists. It has not reached the point of allowing access to public documents only to carry out a generic control over the exercise of public functions. Public bodies, in addition, have to concede access with a specific measure, prior to a procedure in which they have to verify the existence of an effective private interest. The authority has to hear citizens involved in proceedings, give the reasons and the final measures can be challenged. In this model, at least up to the end of the last century, the idea that access was a right of all citizens did not exist. In the last 20 years these two models have not demonstrated the same distance that they previously possessed.165 In the majority of countries that opted for the reserved access model the liberal set up of open government began to spread and permitted citizens to exercise a control on the activity of executive bodies. In other experiences it was viewed as a particularly efficacious instrument to oppose the corruption in public administration, rather than as a system to strengthen democracy. Nevertheless the tendency remained the same even if the motivations changed.

165 Cfr. R. Tarchi, ‘Il diritto di accesso nella prospettiva comparata’, in C. Colapietro (cur.), Il diritto di accesso e la Commissione per l’accesso ai documenti amministrativi a vent’anni dalla legge n. 241 del 1990, Editoriale Scientifica, Napoli, 2012, 186-189.

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Administrative Action and Procedures in Comparative Law Today in many States both the aspects of transparency cohabit,166 due to the laws modelled for the most part on the American Freedom of Information Act. One can note, nevertheless, how in a clear countertrend the model of open government appears in regression in countries that had determined its genesis and main evolution. In the United States millions of dollars a year are spent in guaranteeing transparency and a significant number of public officials are employed only for this specific function.167 The events of September 2001 led the Americans to adopt more restrictive rules to extend secrecy to much more information deemed particularly important for national security.168 The presidential Orders imposed the cost-benefits test to also and above all evaluate if the quantity of financial resources deployed to grant the widest transparency possible was effectively proportionate to benefits gained by society at large.169 Germany and the United Kingdom are marked by rather similar approaches, in the discretionary evaluation that they operate via the principle of proportionality. However, although the two opposing models are drawing closer together, the respective legal experiences and the historical traditions on which they were inserted are still making their influence felt.170 Today undoubtedly it is not possible to sustain that the principle of open government belongs only to the countries that determined its genesis and evolution. The model in fact also extended to other European States,171 affirmed itself in Latin

166 Akerman & Sandoval-Ballesteros, 2006, 85-130. After the premature affirmation of the ‘liberté d’acces aux documents administratifs’ come ‘droit de toute personne à l’information’ in France (1978), laws on the Foia were adopted in the Netherlands (1980, 2005), Portugal (1993), Ireland (1997), the United Kingdom (2000), Switzerland (2004), Germany (2005) e in many Countries of Eastern Europe, among which Hungary (1992), Latvia (1998), Czech Republic (1999), Albania (1999), Estonia (2000), Lithuania (2000), Bulgaria (2000), Slovakia (2000), Poland (2001), Romania (2001), la Slovenia (2003), Serbia (2003) and Croatia (2013). On the topic, H. Kranenborg & W. Voermans, Access to Information in the European Union. A Comparative Analysis of EC and Member State Legislation, Europa Law Pub Netherlands, Groningen 2006; A. Bonomo, Informazione e pubblicheamministrazioni. Dall’accesso ai documenti alla disponibilità` delle informazioni, Cacucci, Bari 2012, 83 et seq.; Tarchi, 2012, 141-209; A. Marchetti, ‘Il diritto d’accesso: modelli di enforcement e cause di exemptions nella prospettiva comparata’, in Colapietro (cur.) 2012, 209-243. 167 On the topic M. Fenster, ‘The Opacy of Trasparency’, Iowa Law Rev., Vol. 91, 2006, 885-949. 168 Cfr. M.R. Papandrea, ‘Under Attack: the Public’s Right to Know and the War on Terror’, Boston College Third World Law Journal, Vol. 25, n. 35, 2005, 35-80. 169 Akerman & Sandoval-Ballesteros, 2006, 123 et seq. 170 Cfr. T. McIntosh, ‘FOI Laws: Counts vary Depending on Definitions’, 2011, www.freedominfo.org; S.S. Coronel, ‘Measuring Openness. A Survey of Transparency Ratings and The Prospects for a Global Index’, 2012, www.freedominfo.org. On the progressive diffusion of the Foia legislations in the state systems, Ackerman & Sandoval-Ballesteros, 2006, 85 et seq., spec. 95 et seq., as well as, with particular reference to the African experience, C. Darch & P. Underwood, Freedom of Information and the Developing World: The Citizen, the State and Models of Openness, Chandos Publishing, Cambridge 2009. 171 Thus as Portugal (1993), Belgium (2004), Denmark (1964), Greece (1999), Ireland (1997), the Netherlands (1978), Iceland (1996 and reformed in 2012), Switzerland (2004).

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America,172 in Central-Eastern Europe173 and in many other legal experiences.174 Many African countries have adopted laws on administrative transparency.175 The phenomenon is diffused also in Asia.176 China (law on secrecy in 2014) and Namibia however, for the most part, maintain a secrecy set up. Nevertheless the characterising traits of some jurisdictions remain and many of the laws cited do not correspond to the American model.177 In this experience the citizen is the title-holder of a generalised right to access, due to the fact that the model envisages that information, acts and documents in the possession of a public power are in essence public and collective goods.178 The authorities are however obliged to provide the requested information where the disclosure obligation is not envisaged. The opposable exceptions by American agencies are few and always resorting to the notion of secrecy, or to specific interests that merit particular protection. The American system is thus integrally characterised on profiles of transparency, and permits knowing all the information, including that which is not incorporated in a document. The duty to disclose data simplifies the satisfaction of the requests for access that in other cases requires however the employment of officials to deal with the relative applications. Disclosure represents therefore the ordinary instrument for guaranteeing transparency, with the exception of cases in which there is the need to compare the interest in knowing with other public and private interests. It is only in these cases that a discretionary power is set aside for an authority. The rules approved in the main European countries do not seem to satisfy these conditions. There are instead experiences that manifest a tendency towards a more advanced 172 Furthermore, Argentina (decree del 2003), Chile (2008), Colombia (1985, recent reform in 2014), Ecuador (2004), Honduras, Jamaica (2002), Mexico (2002 but reformed in 2015), Panama (2002), Peru (2002), Paraguay (2014), Belize (1994), Dominican Republic (2004), Trinidad and Tobago (1999), Antigua (2004), Guatemala (2008), Uruguay (2008). 173 And Ukraine (1992), Turkey (2003), Albania (1999), Bulgaria (2000), Bosnia (2004), Croatia (2003, reformed in 2013), Estonia (2001), Montenegro (2005), Georgia (1999), Moldavia (2000), Czech Republic (1999), Serbia (2004), Slovenia (2003), Romania (2001), Kosovo (2003), Hungary (1992), Poland (2001), Slovacchia (2000). 174 Similar laws were adopted in Israel (1998, reformed in 2009 and new regulations in 2014), Uzbekistan (2002), Kyrgyzstan (2006), Azerbaijan (2005), Armenia (2003), Latvia (1998), Liechtenstein (1999), Lithuania (2000), Afghanistan (2014), Tagikistan (2002), Pakistan. 175 Among which Angola (2002), South Africa (2000) e Zimbabwe (2002), Ivory Coast (2014), Ethiopia (2008), Guinea (2011), Liberia (2010), Mozambique (2014), Rwanda (2013), Sierra Leone (2013), Uganda (2005 and regulations in 2011), Tunisia (regulations of 2011). 176 With Japan (1999 and 2014 a new disciplining), India and Indonesia (2008), Thailand (1997), South Korea (1996), Taiwan (2005), Nepal (2007), Mongolia (2011), Bangladesh (2009), Maldives (2014). 177 M. Stentella, ‘Trasparenza e anticorruzione: ma non chiamatelo FOIA!’, www.forumPA.it., 2013. 178 The same approach is to be found in the Slovene Foia. Art. 39 of the Constitution of the Slovene Republic, second subparagraph, establishes that everyone has the right to access information of a public nature for which they have some legal interest founded on the law, with the exception of the cases established by law. On the topic, N. Pirc Musar & K. Kotnik Šumah, ‘Transparency of Public Administration in the Republic of Slovenia’, www.ip-rs.si/fileadmin/user_upload/Pdf/clanki/Transparency_of_public_administration_in_the_ Republic_of_Slovenia.pdf.

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transparency. This is the case of Estonia that after its independence from the Soviet regime activated a process of institutional reforms to facilitate economic growth, with transparency policies and the fight against corruption, intended as necessary conditions to guarantee foreign investments. Slovenia is yet another case that with the law on access in 2003 introduced the concept, based on the American model, that information in the possession of public bodies should be considered common and public goods. The United Kingdom that stems from a hostile tradition to transparency is numbered among the experiences more interested in the principle. For years transparency was considered an obstacle to efficiency of administrative action, due to the fact that it would have entailed the deployment of new financial resources and an increase in administrative personnel. According to other opinions transparency would have caused a slowing down of public functions. Some countries, in particular the United Kingdom, chose to delay the entering into force of the approved rules, to allow the setting up of an appropriate organisational structure. The evolution of transparency in the United States highlights in fact that the model of open government works well only in the presence of some indispensable conditions. The first of these is the necessity of an efficient organisational model, ready for the onerous tasks stemming from the new needs. The innovations require organising via attentive programming in a context that envisages the assignment of adequate financial resources for the additional functions. The new rules, in the analysed experiences, do not deal with this main theme which is at the base of the model and represents the condition for its efficiency. In the majority of cases the passage from secrecy to transparency was produced with immediate legal effects. It is easily predictable that the declarations in principle could not produce important innovations,179 if the reforms were not accompanied by modifications of the organisational layout and by additional financial resources. Normally instead the new rules did not envisage sanctions against the violation of transparency. The laws attribute responsibility of possible failures directly to officials that have the task of organising themselves. The rules did not set up adequate organisations to deal with the requests. It is evident that in this way nothing is done but to attribute to administrators the responsibility for the malfunctions that inevitably will be produced in the administrative structure.

179 Tarchi, 2012, 185.

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4 4.1

Participation and Right to Defence Investigation within Administrative Action

Investigation is an important phase of proceedings in which the action is directed towards the specific content of the administrative measure. In comparative law this phase is regulated by legislation and case law. Normally the general rules define only the fundamental elements that need to be successively integrated with additional special rules. Thus authorities must then apply other dispositions for single proceedings that could require the acquisition of agreements, authorisations, opinions, technical inspections, assessments and appraisals. There are also proceedings conducted by independent administrative authorities that frequently envisage participation mechanisms in their functions. It is not simple for public powers to know when the data acquisition phase must be enhanced.1 In the majority of the cases the rules from which the related power derives define the prerequisites and the related facts to be investigated or at least highlight the typology of public interest to follow. Via the investigation, the authority evaluates and verifies the facts that successively will constitute the basis of the final measures. In more simple proceedings, devoid of discretionary power, the investigation is directed towards ascertaining the existence of facts that Statutes establish as the basis of administrative action.2 The investigation activity is much more complex when a public power acts without any reference parameter with regards to the facts to be verified. In this case the investigation potentially does not have pre-established limits and its extension depends on discretionary evaluations, whose completeness in turn will depend on the contribution of citizens or the other administrators linked to proceedings. The scope of the investigation phase is first and foremost conditioned by the quantity of facts to be verified, followed by the acquisition and successive evaluation of the interests implicated in the administrative action. In comparative law the principle of celerity and not the bogging down of proceedings, is now widely diffused. Authorities are bound to act rapidly and avoid causing delays in

1

2

The Community system is based on the principle that the administrator is required to ascertain all the factual circumstances that are necessary for the decision to be taken, with particular attention to the particular circumstances of the case. Cfr. European Court of Justice, Hoogovens, 12 July 1962, Case 14/61. On the topic, G. Pastori, ‘La procedura amministrativa negli ordinamenti contemporanei. Introduzione generale’, in Idem (cur.), La procedura amministrativa, Giuffrè, Milano 1964, 34; F. Bignami, ‘Tre generazioni di diritti di partecipazione nei procedimenti amministrativi europei’, in F. Bignami & S. Cassese (cur.), Il procedimento amministrativo nel diritto europeo, Giuffrè, Milano 2004, 87-123; Cassese, 2007, 13-41. There are those who believe that in reality also restricted activity is never totally devoid of elements of discretionality. Cfr. M.L. Michoud, ‘Étude sur le pouvoir discrétionnaire de l’administration’, in Annales de l’Universite´ de Grenoble, 1913, 439; M.S. Giannini, Diritto amministrativo, Giuffrè, Milano 1993, 491.

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conclusion of proceedings. This determines the necessity to identify the boundaries of the facts to be investigated and, as a consequence, the spaces within which the investigation is to be extended; it is difficult to respect celerity if this procedural phase is long and elaborate. On the other hand, however the principle of rationality requires that procedural choices must be rational, proportional and not illogical. In this context the duty of public powers in guaranteeing participation appears conditioned by a wide range of factors. Among the first elements emerges the degree of discretion conferred to the authority and the typology of rights and interests implicated in the administrative action. Both the manner of interpreting the relationship between an authority and society, as well as the characteristics of the adopted proceedings exert an enormous influence that in the majority of the traditional western experiences is based on an inquisitorial system. The duty to allow participation in the investigation phases is now widely diffused and it manifests two tendencies. It can be noted how public authorities are bound to permit those who have the right of access, to examine the acts of proceedings, to which corresponds the right to be heard and to present testimonies. In each of the countries analysed there is the idea that participation constitutes a defence tool of the interests that can be damaged by an administrative action. Hence it has been widely accepted that the task of gathering evidence and carrying out the verification of facts could not exclude a cross-examination with the interested parties who are directly linked with the contested events. However not all the experiences manifest the same degree of intensity in guaranteeing participation. The degree of assimilation of the guarantees offered in a trial compared with those envisaged in administrative proceedings,3 plays a key role. There are procedural institutes deeply rooted to the idea that there must be a conformity between a trial and a fair procedure. In other cases the common law permits a greater flexibility. There is a further aspect of participation which is evident when the protection of interests takes place in rulemaking or general administration and environmental planning. In such cases the participation for the completeness of the investigative phase is more evident in comparison to the mere defence of citizens’ interests in proceedings.

4.2

The French Experience

Both in France as well as in the United Kingdom, participation originates from case law and arises with the fundamental aim of permitting citizens to exercise their right to a defence. In England expressed declarations of this principle are to be found dating from 1615.4 English courts linked this indispensable phase of the procedure to natural justice 3 4

V. Crisafulli, ‘Principio di legalità e giusto procedimento’, Giur. cost., 1962, 130 et seq. Bagg’s Case [1615] 11 Co. Rep. 93 b.; R v. The Chancellor of Cambridge [1723] 1 Stra 557, underline the importance of the principle of audi alteram partem, that dates back to the biblical example of the punishment

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and to the principle of cross-examination that characterised the exercise of defence in criminal proceedings. In France the institute finds its origins in sanctioning procedures.5 The subsequent evolution occurred by means of the Conseil d’État that carried out an extensive interpretation of the rules of 1905 and affirmed the principle of the right to a defence in administrative proceedings aimed at the meting out of penalties.6 The duty of authorities not only to communicate the dossier but also to expressly invite citizens to present their defence in proceedings, also has its origins in courts’ decisions.7 In this initial phase both the experiences manifest a rather similar genesis but with different theoretical approaches and applicative problematics. The evolution is marked by further divergences above all with regards to the extension of participation to cases in which citizens get an amplification of their legal positions. In France the successive phase permitted first the extension of the right to a defence in expropriation proceedings considered in a wide sense, up until including all the cases in which the administrative action could lead to the adoption of an unfavourable measure for the addressees.8 Once having acknowledged the existence of a general principle that requires the exercise of the right to a defence in administrative proceedings, the successive step came almost by itself, if one takes into consideration the equivalence of penalty proceedings with those expropriative or revocating. In essence the right to participation in proceedings, as a direct evolution of the right to a defence in a penal trial, rapidly became eligible in all the cases in which the administrative proceedings had a bearing on a strong and existent legal position.9

5

6 7 8

9

inflicted by God on Adam only after he was given the opportunity to exercise his right to a defence, reconnecting thus an institute of natural justice to a religious foundation. The news is reported by J. Beatson et al., Administrative Law, Text and Materials, Oxford University Press, Oxford 2011, 342; Cfr. also H.W.R. Wade, ‘The Twilight of Natural Justice?’, LQR, n. 67, 1951, 103-106; D. Mullan, ‘Fairness: The New Natural Justice’, University of Toronto Law Journal, n. 3, 1975, 281-289. Art. 65 of the law of 22 April 1905 establishes that administrative authorities cannot assume a decision that has the nature of a sanction without having first granted to the addressee of the measure the right to exercise his own defence in the proceedings. Cfr. Conseil d’État, 8 January 1960, Ministre de l’intérieur c. Rohmer et Faist, Revue droit public, 1960, 133 et seq. Conseil d’État, 5 May 1944 n. 69751, Dame Veuve Trompier-Gravier, www.legifrance.fr.; Conseil d’État, 17 November 1982, n. 35065, Kairenga, Dr. adm., n. 22, 1983, 385 et seq. Conseil d’État, 7 April 1975, Bouche, Lebon, 221. On the topic J. Puisoye, ‘La jurisprudence sur le respect des droits de la défense devant l’administration’, AJDA, 1962, 79 et seq.; H. Zeghbib, ‘Principe du contradictorie et procédure administrative non contentieuse’, Rev. dr. public, 1998, 467 et seq.; J.P. Costa, ‘La contradiction sous l’influence de l’article 6-1’, Rev. fr. dr. adm., n. 17, 2001, 13 et seq. Costa, 1993, 343 et seq.; B.G. Mattarella, ‘L’evoluzione del procedimento amministrativo in Francia’, Riv. trim. dir. pubbl., 1995, 729-788; M. Bonini, ‘Il procedimento amministrativo fra semplificazione e partecipazione: l‘esperienza francese’, in M.A. Sandulli (cur.), Il procedimento amministrativo in Europa fra semplificazione e partecipazione. Modelli europei a confronto, Giuffrè, Milano 2001, Vol. II, 79-145. See now Conseil d’État, III e VIII subset riunite, 30 December 2013 n. 354587, Ministere de l’agricolture, de l’alimentation, de la pêche, de la ruralité et de l’aménagement du territorie c/ Société Laurenti, Lebon, 357.

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However this approach was excessively conditioned by the initial phase in which the right to a defence in proceedings came from the protection of one’s own rights in sanctioning proceedings. French juridical thinking has highlighted, on several occasions, that if measures that have a negative bearing on an consolidated legal position are deemed unfavourable measures, the same concept also applies for measures rejecting a concessions, authorisations or public subsidies that hinder the formation of rights. It concerns decisions that, while not limiting or diminishing the range of already acquired legal positions, do have a negative impact on expectations that are not satisfied. This problematic was dealt with in France in a peculiar manner. The right to a defence was linked to administrative acts for which the duty to give reasons existed. A general duty of participation in all proceedings from which a disadvantage for the addressee of the measure could derive, was not established.10 The 1983 decree established the duty by public bodies to allow the participation of citizens in cases in which the rules in force required the giving of reasons of the final measures. The 1979 law envisaged this specific obligation in relation to unfavourable individual acts that are identified as being those: i) which inflict a penalty, ii) limit freedom rights or constitute a public order, iii) that impose obligations on citizens, iv) condition the issuance of an authorisation based on the fulfilment of specific behaviours, v) all second degree acts, such as revocation or annulment, vi) acts of rejection of a favourable measure to which the petitioner has a right, vii) acts that declare a forfeiture or a barred statute and, by and large, acts that ignore the general rules. Favourable decisions or those which did not have an individual nature were excluded from participation. Typical exceptions were furthermore related to emergency cases11 safeguarding public order and international relations or expressed legislative Acts. Furthermore, by law, participation was not applied in the presence of an activity devoid of discretionality that would lead to following a worthless formalism.12

4.2.1

Rights and Interests in Proceedings

An open investigation hence does not constitute in France a general principle. There is the need to evaluate the effects of proceedings on rights and interests. Thus the participation of citizens depends therefore on the typology of the measure in adoption. The decision that annuls or revokes a previous favourable act can be adopted only with an investigation that is open to the addressee. This condition does not occur instead in cases in which the authority does not approve a decision from which a new legal position depends, with the

10 11 12

Conseil d’État, Section du rapport et des etudes (cur.), Etude sur la motivation des actes administratifs, n. 37, 1986. Conseil d’État, 24 January 1990, Amon, AJDA, 1990, 420 et seq. Conseil d’État, 30 January 1991, Soc. Route et Ville, Droit Administratif, n. 109, 1991, 672.

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exception of acts subject to the duty to give reasons. For authorities thus in many cases it is not simple to know whether the hearing is obligatory or not; this uncertainty is determined also as a consequence of the criterion of parallelism with cases in which the duty to give reasons, exists. The Article 211-2 of ordinance 1341/2015 amplified the typologies of the decisions for which this duty exists,13 extending by reflex also to cases in which public powers must allow participation. The current Article 121-1 maintains the parallelism with the acts subject to the duty to give reasons and confirms the rule that had extended the hearing, taking into consideration also the effects of the measure on the final addressee. The criterion of parallelism is however only partial, in the sense that the duty to give reasons is envisaged for reduced cases with respect to others in which participation must be guaranteed. If the duty to give reasons exists, authorities have also the duty to permit participation. But the opposite is not valid, with the effect that the parallelism between participation and motivation is not totally accomplished. In the same way the duty to communicate the dossier is established by Article 122-2 only with regards to cases in which the measures assume a penalty nature. That is to say, in other terms that in France two procedures exist. A less formal model allows the presentation of written testimonies in proceedings that, on request, can also assume an oral form. Knowledge of the elements of proceedings in this case does not occur via the communication of the start of the procedure but via the right of access or by virtue of administrative transparency. It is a case in which a public power could also reject the motions of participation above all if they cannot contribute to the ongoing investigation.14 A much more incisive model is to be found instead in sanctioning measures.15 In fact it is not simple to verify this characteristic, since the norm does not list the measures for which this more incisive regulation is to be applied but rather refers to the typology of the acts that are subject to a normal procedure. In this way the duty to communicate preemptively the dossier is linked to the sanctionary nature of proceedings. French authorities thus, even after the reform of 2015, are not able to understand, with sufficient clarity, when they are obliged to also communicate the elements contained within the dossier on which the administrative action is founded. Not even on the occasion of the first coding on procedure adopted in its institutional history, did France choose to

13

14 15

To this end, decisions must be motivated if they: 1. limit the exercise of civil liberty o, in general, constitute a police measure; 2. inflict a sanction; 3. subordinate the issuance of authorizations to restrictive conditions or impose duties; 4. withdraw of abrogate a power conferred to a previous decision; 5. oppose prescriptions, preclusions or forfeitures; 6. reject an advantage that constitutes a right for the people that satisfy the requirements of the law for its obtainment; 7. deny an authorization, unless the motivation can prejudice one of the secrets or interests protected by the previsions of Art. L. 311-5; 8 reject an administrative appeal that is obligatory before any decision in force of a disposition of a law or regulation. Art. L122-1, comma 2, order n. 1341/2015. Art. L 122-2, order n. 1341/2015.

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grant to those parties concerned, via a general provision to know the reasons of the measures adopted in all the cases in which they participate in administrative proceedings. There is the possibility that authorities could permit the contribution of citizens in proceedings but they are not obliged to give reasons, due to the fact that these cases are different from each other. This means that participation in administrative proceedings in France assumes different aspects that are not always connected to the same objectives that follow the duty to give reasons. This produces effects on the importance of participation. If the authority is not obliged to provide the reasons for which it decided to overlook the observations expressed by citizens, their defence become difficult when they are in the dark about the motivations that led to the adoption of that specific type of measure. It is however a hypothesis that should not regard cases of particular damage to subjective legal positions, for which both expressed regulatory previsions as well as the law of the Conseil d’État establish the duty to give reasons. The question thus appears rather problematic, above all if observed from the point of view of authorities that continue, despite the approval of the code to not have precise elements that regulate their conduct.16

4.2.2

Débat public and enquêtes publiques

Participation aimed at the completeness of the investigation finds in this experience greater openness in environmental and expropriation procedures, through public inquiry and public debate. The debat publique, widely used in France for environmental issues, however does not always guarantee representation of interests.17 The institute in fact, despite recent reforms, constitutes a system of progressive acceptance by the citizenry involved in the drawing up of the project18 rather than a true model of participatory democracy.19 Mecha-

16 17

18 19

Cfr. lastly B. Bachini & P. Trouilly, ‘Le procedure contradictorie dans le code des relations entre le public et l’administration: de la clarté dans la continuité’, Rev. fr. dr. adm., n. 1, 2016, 23 et seq. Cfr. Y. Mansillon, ‘Le débat public vu par le praticien’, in La participation du public aux décisions de l’administration en matière d’aménagement et d’environnement, Cah. Gridauh, n. 17, 2007, 231; S. Charbonneau, ‘De l'ambivalence du débat public’, in La participation du public aux décisions de l'administration en matière d'aménagement et d'environnement, Cah. Gridauh, n. 17, 2007, 241; Y. Tanguy, ‘La perception d'un débat public par ses principaux acteurs: le cas du projet aéroportuaire de Notre‐Dame‐des‐Landes’, in Études offertes au Professeur René Hostiou, Litec, Paris 2008, 513. On the topic see also Conseil Constitutionnel, sent. QPC 23 November 2012, n. 282, in www.conseil-constitutionnel.fr.; P. Zavoli, ‘Panorama de la jurisprudence. Droit administratif’, Rev. jur. de l’environnement, n. 1, 2013, 103 et seq.; R. Fraisse, ‘La participation du public en matière de droit de l’environnement’, Rev. jur. écon. pubbl., n. 708, 2013, 3-7. Cfr. Delaunay, 2013, 344-350. M. Prieur, ‘Information et participation du public en matière d’environnement, influence du droit international et communautaire’, in M. Pâques & M. Faure (cur.), La protection de l’environnement au coeur du système juridique international et du droit interne. Acteurs, valeurs et efficacitè, Bruylant, Bruxelles 2003, 310; J.F. Beraud, ‘Il caso della Francia: la Commission nationale du débat public’, in A. Valastro (cur.), Le regole della democrazia partecipativa. Itinerari per la costruzione di un metodo di governo, Jovene, Napoli 2010, 391.

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nisms for the evaluation of the observations presented are not envisaged. Only administrative acts of a regulatory nature are submitted to the procedure and the collaborative contribution occurs mostly via a consultative body.20 Even a public inquiry utilised principally for the realisation of public works, does not seem to have any particular success.21 These are institutes that are considered, even by French courts’ decisions, to be not adequate for guaranteeing the effective participation of citizens in decision making22 and frequently do not appear even aimed at improving the projects subjected to the evaluation of citizens.23 The French code has simplified public inquiries and expanded the areas where it can be used as a participation mechanism far beyond the existing application hypotheses on environmental issues and expropriation procedures. Participation takes place through administrative advisory boards, or through internet sites. There are two possible hypotheses. The first allows the participation of all interested parties in rulemaking, via the internet and outside the advisory commissions.24 The second form concerns draft laws, regulations and acts for which the authority, at its discretion, intends to open the inquiry.25 The Code mentions certain procedural elements only in relation to the first hypothesis, while leaving public bodies to act in the best sense respecting transparency and reasonableness when they intend to allow large forms of participation not provided by law.

4.3

Hearing in United Kingdom

In England a different evolutionary line was taken, characterised by the expansion of the audi alteram partem principle and by the progressive adaptations operated by the English courts. In the years in which the right to a defence in proceedings began to affirm itself, common law was abandoning the rigorous private law approach and began to model itself towards new needs of procedural guarantees and the identification of the guiding principles

20 21 22

23

24 25

E. Le Cornec, ‘La partecipation du public’, RFDA, 2006, 770 reflects about the relationship between local democracy and participation. Cfr. R. Hostiou & J.C. Hélin, Droit des enquêtes publiques, Le Moniteur, Paris 1993; Ackerman & Perroud, 2013, 223-309. Conseil Constitutionnel, sent. QPC 14 October 2011, n. 183/184, in www.conseil-constitutionnel.fr. Conseil Constitutionnel, sent. QPC 13 July 2012, n. 262, in www.conseil-constitutionnel.fr. Conseil d’État, sent. 6 June 2007, Réseau Sortir du nucléaire, req. n. 292386, in Leb., 242. See also A. Fourrnon, ‘Le Conseil d’État écarte le recours contre le décret ICPE intégrant les éoliennes’, Gaz. du Palais, nn. 256-257, 2012, 22; R. Schneider, ‘Réglementation de l’implantation des installations classées. Décret de nomenclature’, Rev. jur. de l’environnement, n. 1, 2013, 161 et seq. Cfr. C. Blatrix, ‘L’enquête publique, victime du débat public?’, Pouvoirs Locaux, n. 62, 2004, 85; Le Cornec, 2006, 771; P. Subra, ‘Quel bilan tirer de huit années de débats publics ?’, Pouvoirs locaux, n. 69, 2006, 3; B. Delaunay, ‘De l'enquête publique au débat public La consultation des personnes intéressées’, La Semaine Juridique Administrations et Collectivités territoriales, n. 8, 2011, 2073. Art. R. 133-1 order n. 1341/2015. Art. R. 132-1 et seq. order n. 1341/2015.

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of administrative action. Natural justice provided the conceptual force of nemo judex in causa sua and that of audi alteram partem that the English jurists immediately adapted to the decisions assumed by a public power.26 It is in this way that the principles stemming from the legal tradition modelled the form of administrative procedures, without the need of a specific Statute that regulated all the phases. However, around the first half of the twentieth century, the adversarial principle was still particularly linked to the exercise of the judicial function, above all due to the distinction between rights and procedural remedies that characterised the British common law experience.27 English juridical thinking distinguished the purely administrative action from that of judicial or quasi-judicial nature and tended to ensure the right to a defence only to the second type of administrative proceedings.28 It in fact observed the phenomenon of participation with particular attention to the aspect related to the defence of rights, determining a double consequence. England placed itself among the first countries to ensure respect for the adversarial principle also in administrative proceedings, even if only in relation to quasi-judicial action. This fact gave a characterisation to the phenomenon focused on the trial module. Contemporarily participation was totally neglected when the procedure did not assume a judicial or quasijudicial nature but only a mere administrative function.29

4.3.1

The Flexibility of Natural Justice

When authorities began to expand their own public functions in England, as had occurred in the United States, the distinction between rights and privileges, was affirmed differentiating the procedural rules to be applied in individual cases. Rights refer to already acquired legal positions, for which it would have been possible to apply the principle of the due process of law due to the fact that administrative action would have had a bearing on such positions. Instead, with regards to privileges, the advantage position would arise only after a formal measure. During decision making citizens would have had a legal position of expectation.30 English juridical thinking thus had to deal with a rather complex theoretical problem in order to try to modulate the application of natural justice to cases in which subjective legal positions were acknowledged as rights and the ongoing proceedings had

26

27 28 29 30

Successively to the affirmation of the principle of natural justice, the English juridical thinking then dwelled on the importance of the value of the dignity of men, linking the institute of audi alteram partem also to values connected to the individual. Procedural rules thus became instruments that were not only procedural but also above all aimed at the protection of human dignity. The debate, increased following the publication of the text of Galligan, 1996, is summarized in Beatson et al., 2011, 344-346. P. Craig, ‘The Common Law, Reasons and Administrative Justice’, CLJ, n. 2, 1994, 282-302. Craig, 2012, 348. Mclnnes v. Onslow Fane [1978] 1 WLR 1520. Craig, 2012, 349.

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a quasi-judicial nature.31 The force of the principle stemming from a natural right risked being weakened in the face of the many problems that would have characterised its application. The British experience registered a moment in which there was an attempt to distinguish two typologies of procedure, permitting participation of citizens only in judicial or quasi-judicial proceedings. It was not simple to individuate the elements for both distinctions, between rights and privileges, on the one hand, and quasi-judicial and mere administrative procedures, on the other.32 This condition produced an important effect: for many years administrative action was viewed from two angles. When it was possible to see in the procedure the exercise of a quasi-judicial function with characteristics similar to a trial, participation was permitted, with the correspondent duty of the public body to acquire the observations of citizens. Instead, in cases in which the function was defined as being administrative, participation was not obligatory. The difficulties in distinguishing these two functions of administrative action led to the emergence of the duty to acquire citizens’ opinions in a more wider vision and the consequent passage from the principle of natural justice to that of fairness33 currently utilised by the English courts. The theoretical arrangement of the institute of participation dates back to the Ridge v. Balwing.34 In this case Lord Reid declared that the application of the adversarial standard was not linked to the strictly processual dimension, but it was inherent in the very nature of power, and connected to the effects that its exercise produces in legal positions. Likewise for Lord Hodson, the absence of lis inter partes was not decisive nor should the form of proceedings via which the final decision would be adopted, be they judicial, administrative or executive acts, cover a determinant role. In this way the adversarial principle was unhooked from a judicial dimension that had excessively restricted it in antecedent years. However the problem of verifying in which cases the exercise of power required participation remained, due to the fact that the expansion of the guarantees provided by natural justice were always dependent on the power exercised and the effects produced on the 31 32

33

34

R. v. Gambing Board for Great Britain, Ex p. Benaim and Khaida (1970) 2 Q.B. 417 CA. In Re H.K. (An Infant) [1967] 2 QB 617, 630 it is affirmed that regardless of the nature of administrative activity, be it judicial o quasi-judicial, it must always be carried out “fairly”. Courts’ decisions however distinguishes between the concept of fairness applicable to proceedings that conclude with a adjudication and thus with a unilateral authoritative decision of the authority or non-adjudicative proceedings that present a certain degree of negotiability or informality and the concept of a fair hearing in the case of proceedings that resemble more a trial or that are of a high level of litigation (cross-examination of the interested parties). The House of Lords decided that it was not necessary to resort to the principle of natural justice, that can suggest to use the judicial procedure as a prototype, but rather it was necessary to look to fairness. It would be wrong – continued the House of Lords – to sustain that, in an administrative procedure of this type, the judicial procedure should be applied, with the hearing of the depositions of witnesses, experts and crossexamination, because in this way one would end up by “over-judicializing” such proceedings. Cfr. Bushell and another v. Secretary of State for the Environment, 4 February 1980, [1981] AC 75; Mullan, 1975, 281316. Ridge v. Baldwin AC 40, allowed the judicial review of decisions made by the British executive. For the first time, judiciary turned over a non judicial decision assumed in an administrative action.

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interested party. For this reason in the following years the English courts found themself face to face with many cases in which there was the need to identify the criteria for the applicability of procedural guarantees.35 For some set-ups the criteria of fairness rather than that of natural justice36 seemed more akin to the problematics of participation. The English judiciary began thus to debate the attributability of the adversarial principle to natural justice. In the Megarry V.C. in McInnes (1978) case the judiciary exalted the flexibility of natural justice that could be applied to the complete range of the exercise of public power, both of a judicial or quasi-judicial nature, as well as of an administrative or executive nature. However the more the system distanced itself from the canons of a judicial or quasi-judicial procedure, the more appeared appropriate the reference to equity, rather than that of natural justice. In essence, although the two elements incorporated the same principle, equity presented itself as an evolution of natural justice applied to administrative and executive action too. The passage from natural justice to the principle of equity produced different consequences.

4.3.2

The Expansion of Participation Rights

After this passage the focus of the English judiciary turned to the analysis of subjective legal positions that were undermined by administrative action. Hence the progressive expansion of the exercise of the right to a defence began to evolve and go beyond legal positions that can be described as rights, leading to the protection of interest up to understanding legitimate expectations. In other words it was necessary to overcome the approach that applied fairness principally to consolidated rights under common law and those relating to Article 6 ECHR to expand procedural guarantees also in the context of the new rights and interests that arose as a result of the expansion of the Welfare State. If one observes the English experience one can notice that the evolution of standing is strictly connected to the way in which Administrative Tribunals functioned. The initial set up of these bodies had in essence established a system of control of administrative action devoid of a jurisdictional nature.37 In 1958, for the first time in England, a form of protection for interests implicated in administrative action was envisaged but that eluded

35

36 37

Cfr. R v. Secretary of State for the Home Department, ex p Hickey (No. 2) (1995) 1 WLR 734. Cfr. T.R.S. Allan, ‘Constitutional Dialogue and the Justification of Judicial Review’, Oxford J Legal Studies, n. 4, 2003, 563-584; Idem, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’, The Cambridge Law Journal, Vol. 65, 2006, 671-695; C.D. Campbell, ‘Monopoly Power as Public Power for the Purposes of Judicial Review’, The Law Quarterly Review, Vol. 125, 2009, 491-522. R v. Secretary of State for the Home Department, ex p Fayed (No. 1) [1998] 1 WLR 763. Cfr. T.R.S. Allan, ‘Procedural Fairness and the Duty of Respect’, Oxford J Legal Studies, n. 3, 1998, 497-515. Cfr. M. D’Alberti, 1992; M. Adler, ‘A Socio-Legal Approach to Administrative Justice’, Law and Policy, Vol. 25, 2003, 323-352.

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the private law approach that was typical of common law.38 Diverse to that which was taking place in the United States with the Administrative Procedure Act, the system that emerged from England was characterised by a type of standing, somewhat diffused, without any initial connection with that of a judicial nature or conditioned by the analysis of subjective legal positions.39 The system evaded thus the typical actions regulated by common law that presupposed however that there was a possessor of a right. Interests detached from a strong position of subjective right began to find forms of protection in the so called prerogative remedies that stemmed from the public law tradition and directly derived from the writs of royal origin. In the ambit of this typology of action the institute of standing did not form via the tight and rigorous analysis of the interest to act, but it was configured, since its origins, as an open remedy to whoever had an interest almost in the same way as a popular action. It was the moment in which English juridical thinking began to interrogate itself with regards to the connections between the illegitimacy of administrative action and the expansion of judicial control. Thus, when in 2007 England conferred to the Administrative Tribunals the characteristic of jurisdictional bodies, all the influence of the legal tradition that in the past had permitted a widespread standing, was felt. In essence the English courts verified the question of procedural standing in the light of the criterion of sufficient interest. The criteria established by law were rather elastic by taking into consideration the tight connection operated also in this system, between the presuppositions for standing and sufficient interest in proceedings.40 Property rights, intended in the widest sense, including material and non-material assets and public employment were considered strong legal positions and symbols of personal freedom, in relation to which an authority had to apply maximum participation, when its action compromised them. The English judiciary recognised the rights to participation to possessors of interests, both individual as well as collective, acknowledging the existence of the principle of participation to groups and associations, but also in cases of 38 39

40

Cfr. Chiti, 2009, 384. For some time in the USA, the Federal Appeal Courts had promoted the application of the standing or locus standi test, that stemmed from common law, and that permitted the interested parties to appear and be heard in the proceedings. See Sierra Club v. Morton, 405 U.S 727, 92 (Sup. Ct. 1972); Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct. 1992); Friends of the Earth, Inc., et al. v. Laid law Environmental Services, Inc. 528 U.S. 167 (Sup. Ct. 2000); NRDC v. EP, 464 F.3d1, 373 US 223 (App. D.C. 2006). On the topic B. Mank, ‘Standing and Future Generations: Does Massachusetts v. EPA Open Standing for Generations to Come?’, Columbia Journal of Environmental Law, Vol. 34, 2009, 2-97; T. Murombo, ‘Strengthening Locus Standi in Public Interest Environmental Litigation: Has Leadership Moved from the United States to South Africa?’, Law, Environment and Development Journal, n. 2, 2010, 163. In this regard R. v. Paddington Valuation Officer, ex. p. Peachy Property Corp. (no. 2) [1966] 1 QB380; Arsenal Football Club v. Ende [1979] AC I; Lim Clio Hock v. Government of the State of Perak [1980] 2 MLJ 148; Mohammed bin Ismail v. Tan Sri Haji Othman Saat [1982] 2 MLJ 133; R. v. Inland Revenue Commissioner, ex p. National Federation of Self-employed and Small Businesses Ltd [1982] AC 617; George John v. Goh EngWah Bros FilemSdn Bhd. [1987] LSN (Legal Network Services) 111; R. v. Attorney-General, ex. p. P. ICI pic [1987] 1 CMLR72.

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4.3.3

Freedom of Procedural Forms

This evolution characterised the modern way of intending participation in proceedings, in the British system. On the one hand, there was the ample opening granted to the exercise of judicial actions claiming the legality of administrative actions without particular filters connected to citizens’ legal positions. And on the other hand, the force of natural justice that imposed itself on administrative action. Together they lay the foundations of the current model of participation in proceedings that still exists today in the United Kingdom. Here a uniform model does not exist. There are modalities that allow ample forms in which the deposition and the presentation of documents and observations is added to the inclusion of testimonies, cross-examination, inspections and every form of information. Other cases of participation are limited to personal depositions, sometimes orally. In general there is the tendency to guarantee participation in adjudication. The English courts acknowledge the obligation of the authority to respect the principle of fairness, also in a weak form.44 The procedural mechanisms require the pre-emptive notification to the interested subject, in advance and preferably in written form, in which the date and the location of the hearing, an adequate description of the facts and the legal questions, are to be indicated. The elements that render a notification adequate and conforming to the right would depend on the complexity of the matter and the urgency of the measures to be undertaken. The guiding criteria are specified in the (Anufrijeva) R v. The Home Secretary case.45 On this occasion the House of Lords sustained that when an administrative decision could be unfavourable to an individual, the start of the procedure must be communicated to them before it produces legal effects. In the procedures the principle of ‘equality of arms’ has to be respected by virtue of which all the parties must have the reasonable possibility to present their own defence in conditions that are not disadvantageous. 41 42 43 44

45

R. Clayton, ‘Judicial Deference and Democratic Dialogue: The Legitimacy of Judicial Intervention under the Human Rights Act 1998’, PL, 2004, 33-47. R. (on the application of Bath) v. North Somerset Council [2008] EWHC 630. R. (on the application of Stamford Chamber of Trade and Commerce and FH Gilman & Co) v. Secretary of State for Communities and Local Government and South Kesteven DC [2009] EWHC 719. Cfr. Galligan, ‘Procedural Fairness’, in P. Birks (cur.), The Frontiers of Liability, Vol. 1, Oxford University Press, Oxford 1994; P. Craig, ‘Contracting Out, the Human Rights Act and the Scope of Judicial Review’, LQR, n. 118, 2002, 551 et seq.; P. Daly, ‘Justiciability and the “Political Question” Doctrine’, PL, 2010, 160. [2004] 1 A.C. 604.

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When there are no Statutes an English authority decides case by case with a comparative evaluation between: i) the individual interests involved, ii) the type of decision to be assumed, iii) its nature, and iv) the matter and economic considerations. In other words the test tends to highlight the benefits that can be derived from the added procedural guarantees and the cost that the authority would have to face, both directly and indirectly. The more important the individual interest is the greater the protection in the proceedings. The experiences the Tribunals and the inquiries constitute the essential nucleus of the mechanisms of participation for the approval of general acts.46 The inquiries are usually utilised to open to participation in administrative investigation before it reaches the final decision. It is a fact-finding activity conducted by an inspector, very similar to the French public inquiry, with which an authority gathers the observations of the citizen addressees of the general act. There are matters for which an inquiry is obligatory, for example, the programming of expropriations for public utility services, public works of a notable impact, environmental protection and urban city planning. Other questions are left to the discretion of the authority. The procedure follows the principles of natural justice above all with regards to the right to be heard and the gathering of evidence. In essence it constitutes an open investigation model with which a public body is made aware, via direct participation of all the interests on which its action will have a bearing, and it can evaluate a wide range of information.47 Naturally the outcome of the inquiry is not binding for an administrator which remains free to decide the content of the measure, but it must give reasons for its choices.48 The final decision can be challenged in a court.

4.4

Right to Defence and Formal Adjudication in the United States

The path followed by the United States is very similar. In this system too the courts required the application of the due process of law to adjudication proceedings every time administrative action had a bearing on the life, freedom and property of a person. These three important interests for each person were placed, in the Constitution, on an equal level and thus proceedings that could have affected the right of property were to be conducted in

46 47

48

G. Anthony, ‘Administrative Procedure and Public Decision-Making in the United Kingdom’, in Auby & Perroud (cur.), 2015, 135-146. Cfr. L. Blom-Cooper, ‘Public Inquiries’, CLP, Vol. 46, 1993, 203 et seq.; R. Scott, Procedures at Inquiries – The Duty to be Fair, n. 111, 1995, LQR 596; J. Beatson, ‘Should Judges Conduct Public Inquiries?’, Israel Law Review, Vol. 37, 2004, 238-280; I. Steele, ‘Judging Judicial Inquiries’, Public Law, 2004, 738 et seq.; L. Blom-Cooper, ‘What Went Wrong on Bloody Sunday: A Critique of the Saville Inquiry’, Public Law, n. 1, 2010, 61-78. Sez. 12 Tribunals and Inquiries Act del 1971.

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49

50 51

L.J. Edwards & R.N.M. Anderson, Practical Adjudication for Construction Professionals, Part I, Thomas Telford, London 2002, 6-124; W. Funk, ‘Public Participation and Transparency in Administrative Law – Three Examples as an Object Lesson’, Admin. L. Rev., n. 61, 2009, 171-198. Sec. 554. Sec. 556.

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vertex of the agency.52 In the other case the measure adopted by the administrative law judge assumes the form of a recommended decision and the final effects of the adjudication are produced only following the measure adopted by the vertexes. The formal proceedings were to be applied on every occasion that was expressly envisaged by Statute.

4.4.1

Informal Procedure and Balancing Test

Informal proceedings, that were mainly followed by the agencies, are not disciplined by the Administrative Procedure Act. There are no rules that guarantee participation, the impartiality of the official that adopts the final decision nor is the authority bound to give reasons. In essence the Act leaves to custom and the internal regulations of the agencies to dictate the phases to be followed. The same guarantees of the due process of law are valid for informal proceedings too, in cases in which the action, albeit conducted informally, has a bearing on constitutionally protected rights and interests. The adversarial principle thus in case law constitutes the minimum content of guarantees that authorities are bound to respect when their action can have a bearing on strong legal positions.53 The application of different rules based on the internal regulation renders an informal proceeding not ascribable to a uniform category if the minimum level of guarantees offered by the principles of the due process of law is excluded. The application of constitutional guarantees is not however extended to all the cases in which agencies act in an informal manner. First and foremost there is the necessity that the legal position falls, broadly speaking, into the concepts of life, liberty and property, protected by constitutional guarantees.54 In essence, when agencies act via an informal procedure the same problematics highlighted in the United Kingdom, come to light. In the United States participation developed via the distinction between rights and privileges that permitted the guarantees to proceedings where already acquired rights would could be compromised. But at the same time the guarantees in proceedings that regarded cases in which there were no pre-existing rights were not applicated. The ambit of privileges, furthermore, was particularly extended, up to including subjective legal positions that in western systems already have an adequate procedural protection. The most emblematic case of this situation is represented by the 52 53

54

Sec. 557. M. Asimow, ‘The Spreading Umbrella: Extending the APA’s Adjudication Provisions to all Evidentiary Hearings Required by Statute’, Admin. L. Rev., n. 56, 2004, 1003 et seq.; T. Moore, ‘Abandoning MEAD: Why Informal Adjudications should only Receive Minimal Deference in Federal Courts’, Utah Law Review, n. 2, 2008, 719-737. In American juridical thinking, the interpretations on new property by C.A. Reich, have been particularly valuable, ‘The New Property’, Yale L.J., n. 73, 1964, 733-787 that led to the extension of constitutional guarantees also to procedures with which the American administrators gave out subsidies and services. Thus, the idea of property sanctioned in constitution was amplified and allowed to overcoming the distinction between rights and privileges that had notably reduced the rights of participation in the past.

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sacking of a public employee that for years was considered as a privilege and excluded from procedural guarantees and judicial review.55 This distinction was abandoned in 1970 thanks to the Supreme Court that permitted the application of transparency, participation, freedom of information and duty to give reasons to proceedings that had a bearing on subjective legal positions that had not formed yet.56 Administrative actions destined to expand rights of citizens became regulated by the principles established by the constitutional rule of the V and XIV amendment. The innovation is of fundamental importance if one considers that 90% of all the orders issued by the American agencies are arranged on the basis of informal proceedings, that characterises thus the almost totality of administrative action conducted in the United States.57 Furthermore other guidelines stem from courts’ decisions: the orders must be individual and the guarantee is excluded in cases in which the decisions are referable to a generality of persons.58 It must regard a resolution assumed on the basis of a discretionary power in which the collaborative contribution could be useful.59 In essence the American agencies, based on their own internal regulations, modulate informal proceedings on the importance of the legal positions of citizens, taking into consideration the typology of the investigation to be carried out and the assistance that could be provided by their participation.60 These elements are far from being clear in the American experience too. It is not easy to establish criteria for the determination of the right to participate in proceedings, in particular where the discretion is so wide as to allow authorities to evaluate the absence of an interest that is judicially protected. The expectation that can determine the right to the due process of law must derive from a rule that is however insufficient in rooting the constitutional guarantees in cases of administrative discretionality. The American agencies must allow participation when they intend revoking a measure previously granted, albeit founded on the exercise of discretionary power. In this case the administrative action is considered conducted in the face of a right with the consequential application of the constitutional guarantees.61 55 56 57 58

59

60 61

Cfr. Pierce, 2002, 568 et seq.; Battini et al. 2007, 116. Goldberg v. Kelly, 397 U.S. 254 (1970). J.O. Freedmann, ‘Summary Action By Administrative Agencies’, U. Chi. L. Rev., Vol. 40, n. 1, 1972; Marchetti, 2005, 79. Londoner v. City and County of Denver, 210 U.S. 373 (Sup. Ct. 1908).This refers, in essence, to understanding whether the addressees of the measures are identifiable or the administrative action refers to indistinct categories of people. See Weinberg v. Hyson Westcott & Dunning Inc., 412 U.S. 609 (Sup. Ct. 1973).By norm, there is the tendency to exclude the acknowledgment of constitutional guarantees in technical or highly specialised evaluations. On this point, New Motor Vehicle Board v. Orrin W. Fox, 439 U.S. 96, (Sup. Ct. 1978). See also for the reconstruction by Italian jurists, by Marchetti, 2005, 85. Mathews v. Eldridge, 424 U.S. 319 (Supr. Ct. 1976). Cfr. M. Asimow, ‘Inquisitorial Adjudication and Mass Justice in American Administrative Law’, in J. Laverne & S. Baglay (cur.), The Nature of Inquisitorial Processes in Administrative Regimes: Global Perspectives, Routledge, London 2013, 93-112.

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In the United States it is the balancing test between the benefits that the interested party receives from respect of the principles of the due process of law and the costs to be sustained in guaranteeing the constitutional guarantees, that is to guide the choices of the American agencies.62 The procedural guarantees are modulated at the discretion of the authorities via an analysis that must take into account the private interests that are damaged, in relation to the importance that the legal position has in the constitutional system. On having verified the importance of the interests implicated, the evaluation shifts onto the risks and the probabilities that a violation of the procedural guarantees could lead to a declaration of unlawfulness of the proceedings.63 In other words, respect for the procedural guarantees is further subordinated to another evaluation related to the utility for the agency that can derive from the observance of the rules. The last element of the balancing test regards the cost-benefits ratio, in which an agency evaluates the bearing on its finances that could derive from the application of procedural guarantees and the benefits to be had by the addressees of the measures.

4.4.2

Rulemaking and Participation

In a similar way to adjudication, in the cases of rulemaking too, there is a formal as well as an informal procedure. In the formal model agencies are bound to carry out all the observances in order to allow the greatest participation as possible. They must respect the times envisaged for each phase, guarantee the independence and the neutrality of the executed function, give reasons in relation to the unsuccessful acknowledgement of the observations forwarded by citizens, in a procedure that becomes so complex and long that often it is not able to come to a conclusion. The procedure prescribes the duty to publish in the Federal Register the projects of rules that an agency intends to approve and a successive and quite extensive consultative phase, with the possibility to present written observations, testimonies, organise meetings and consultative conferences. Formal procedures are followed when rules that confer specific powers to agencies require expressly the adoption of this special type of procedure, while the general way is constituted by the informal model. When an agency is bound to follow the informal procedure, the action begins with the publication and the greatest diffusion possible of the text that the agency intends to approve.64 It establishes a time limit within which the parties interested in the proceedings can present their own observations and integrate the investigation with further documentation.65 In the final measure there is the need to take into 62 63 64 65

Matthews v. Eldrige, 424 U.S. 319 (Sup. Ct. 1976). Regarding the relationship between the Goldberg precedent and the Eldridge case refer to the reconstruction by Marchetti, 2005, 92. Sez. 553, b. Sez. 553, c.

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account the contribution provided by the parties, indicating the reasons that led to regulating in that way that specific case. The informal procedural model represents thus the minimum content for guaranteeing that administrative action is conducted in accordance with the constitutionality parameter of the Fifth Amendment.66 However contemporarily, the informal procedure constitutes the simplest model to carry out the investigation guaranteeing transparency, access and the duty to give reasons even if one observes the phenomenon from a different viewpoint of the administrative simplification. In the majority of the cases instead rulemaking is organised by agencies themselves, due to the fact that the obligation to adhere to the formal procedure is somewhat circumscribed. However an agency can decide to follow the formal procedure when the simplified model appears impracticable, not indispensable or even contrary to public interest. An agency cannot follow this investigation model if the decision to be adopted regards matters such as foreign policies, defence, organisation, personal questions, assets and contracts.67 In reality, beyond the compulsory cases indicated, the Administrative Procedure Act grants ample discretionary power regarding the choice of the procedural model. The agencies constantly choose the informal procedure, that became the general way in rulemaking. Recently there are also mechanisms of negotiation where the participation of groups of interests begins in the phase of the drawing up of the initial proposals.68

4.5

The Regulatory Framework in Germany

In Germany participation is an instrument of defence. It is regulated with precision in the law on administrative proceedings of 1976 via two typologies of procedure, one formal and one informal. The informal procedure constitutes the general rule,69 while the second typology is set aside for cases envisaged by special legislative dispositions, as in the United States. The informal model is characterised by a meticulous regulating of the various phases, with a particular attention focused on the participation of citizens that can occur with experts and depositions, both in written and verbal form.70 Participation is wide, in the formal procedure, and is not subject to particular limitations.

66

67 68 69

70

Cfr. P.L Strauss, ‘An Introduction to Administrative Justice in the United States’, in Piras & Motzo (cur.), 1991, 651; V.K. Burrows & T. Garvey, ‘A Brief Overview of Rulemaking and Judicial Review’, Congressional Research Service, 2011, 1-11. Sez. 553, a, 1 e 2. Ferrari, 2006, 323-324. There seems to be more guarantees in the informal model in Germany than in the USA. Cfr. M. Fehling, Eigenwert des Verfahrens im Verwaltungsrecht, 70 Vereinigung der Deutschen Staatsrechtslehrer 278, 2010, 289 et seq. Art. 63 et seq. VwVfG.

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In the informal model instead the acquisition of investigation elements is rather flexible. Article 13 prescribes that claimants, opponents, those with which an authority intends stipulating a private law contract or who have been called to intervene are included in the notion of ‘subjects implicated in proceedings’. With the exception of the direct interested parties, applicants and opponents, for other subjects the authority normally has discretionary power to verify if they could be harmed by the ongoing proceedings.71 Public powers are instead bound to allow participation to subjects towards whom the proceedings produce constitutive effects. The approach is based on classic inquisitorial proceedings that prevents an authority from legitimately adopting an administrative act without having given to the interested party the possibility to express themselves on the fundamental points of the question.72 This institute however is not of general application but is subordinated to the demonstration that an interest could be damaged by the final measure. In the German experience an administrative measure can be emitted regardless of the observations of the interested party in all cases in which they did not appear necessary. The same thing happens in emergency cases when participation does not permit respecting an essential time limit, within which a final act must be adopted. Another case occurs when the decision that the authority intends to adopt corresponds, in essence, to the request of the interested party. Further exclusion cases are expected when a public power intends to adopt a general decree, a large number of analogous acts, utilises computerisation systems or additionally when the administrative action does not entail the exercise of discretionary power.73 However these are not compulsory cases, due to the fact that the principle expressed by sub. II of Article 28 establishes the general criterion of exemption from respecting the rule of participation imposed by the circumstances of each case. The disposition highlights thus a discretionary power of public bodies that is however limited by the logic that subtends the disposition of Article 28. The exemptions indicate in fact cases in which the interests of the addressees of the final measures have already been taken into consideration or there is no necessity to do so, due to the fact that the participation could appear irrelevant. Instead the law forbids participation in proceedings if this is in contrast with a public interest of a binding nature.74 It is a residual and exceptional case, an express derogation to transparency and participation that finds its application only in cases of a threat to public order and national security.75

71 72 73 74 75

E. Schmidt-Aßmann, ‘Die Grundgedanken des Verwaltungsverfahrens und das neue Verwaltungsverfahrensrecht’, Jura, 1979, 505-520. Art. 28, comma 1, VwVfG. Art. 28, comma 2, VwVfG. Art. 28, comma 3, VwVfG. P. Stelkens et al., Verwaltungsverfahrensgesetz, Kommentar, C.H. Beck, Munich 1998, para. 28, 644.

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Hence there are citizens who must necessarily be invited and others for which the authority is not obligated, but can freely choose to amplify the guarantees of participation. The duty to communicate the start of proceedings regards interested subjects whose rights will be touched by the undertaken action. A public body can thus freely choose whether to invite or not other subjects, in so far as their interests, judicially protected, could be damaged by the outcome of the ongoing proceedings. In this approach participation is guaranteed to the main addressees of the effects of the final measure. The model refers to purely administrative measures and acts of a normative content are excluded. Thus in principle participation is granted to specific subjects, the holders of individual legal interests and does not extend to organisations and associations and the holders of diffused or collective interests, unless specified in sectorial rules. Participation does not seem to be extended to the entire category of administrative acts, due to the fact that it is limited to measures that damage subjective legal positions.76

4.6

The Spreading of the Right to Defence in Proceedings

The duty of an authority to hear out citizens and gather their observations in proceedings has spread almost everywhere. Community law has quickly adopted the principle.77 In Scandinavian countries and in Central-Eastern Europe one can note the strong influence of the experiences of the main European States and the relative principle by now consolidated in Article 41 of the Charter of Fundamental Rights. In Slovenia78 the obligation to acquire the point of view of the addressee of the measure is regulated by Article 9 of the code on administrative procedure and likewise in Estonia by Article 40 of the law on administrative procedure.79 Similar previsions are to be found in Finland80 and Lithuania.81 The exceptions normally regard motivated emergency cases. In Sweden the duty to acquire the opinions of citizens follows the set-up of the French experience with some variants of a substantialistic nature. The first condition is dictated by the circumstance that it must be a case of the exercise of a public power that is destined to have a bearing on an individual

76

77 78 79

80 81

Ibidem. See too D.U. Galetta, ‘Il procedimento amministrativo in Germania tra previsioni in tema di partecipazione dei soggetti coinvolti e misure di accelerazione della sequenza procedimentale’, in Sandulli (cur.), 2000, 46 and 53. European Court of Justice, Alvis 4 July 1963, Case 32/63. Idem, Buchler 15 July 1970, Case 44/69. Idem, Kingdom of Belgium v. Comm, 10 July 1986, Case 40/85. In Slovenia, the obligation to acquire the point of view of the addressee of the measure is regulated by Art. 9 of the code of administrative procedure. On the topic, Kovač, 2011, 39-66. Sec. 40 (3) in the Estonian law on administrative procedure contains an exception to the right to be heard if the participants in the proceedings number over fifty. The Danish law contains a similar provision in Art. 19. Sec. 37 administrative Procedure act del 2003. Sez. 25 law on public administration of 1999.

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or a specific category of subjects. The administrative action cannot be undertaken if the addressees of the measure have not been informed about the content of the decision that the authority intends to adopt. Normally standing is acknowledged via an analysis of the typology of the subjective interest implicated in proceedings. The mechanisms found in the main legal experiences to pre-emptively balance the needs for celerity in administrative action with the guarantees of participation, are diverse. In Germany this is regulated by a dual procedure. In Italy the law prescribes that the start of proceedings is to be communicated to the addressee of the final decision, those who have to intervene and those who may be damaged by the administrative action if they are easily identifiable. In Germany, Italy, Sweden and Spain, despite the fact that the duty to allow participation is considered a basic principle of administrative action, its strength is toned down by the modulation of the effects that non-observance entails on the validity of acts. Participation is expected in the majority of laws adopted in Latin America. In Costa Rica there exists the model of the dual procedure: the formal procedure offers ample guarantees for the exercise of the right to a defence, but it is obligatory only in some specific cases.82 The simplest system is based on the principles of velocity, economy and simplicity that allow the reduction of time for the emission of the final measure. It can be applied in cases of favourable administrative acts or declarative acts of rights, restricted procedures or cases that cannot lead to a disciplinary suspension or a dismissal.83 The differences between the two procedures are rather marked.84 Argentina is an exception. Here the rules on procedures do not deal with regulating the participation phases. However the principle was connected directly to the constitutional rules of Article 18 on the exercise of the right to a defence. Courts’ decisions imposed three elements characterising the right to a defence in proceedings. An authority must allow hearing before the adoption of a final measure, present observations and documents, to which is connected the presumption that the final decision constitutes the result of elements acquired in the investigation phase.85 The mechanism seems therefore to permit an extended participation.86 In essence it also admits participation to third parties against the interested 82

83 84

85 86

Art. 308, comma 2, LGAP: When the final measure can determine serious damage to the rights or legitimate expectations of citizens, when the legal position of the addressees of the measures is in contrast with the public interest that the public administrator intends to uphold or in the event of a measure that can entail the destitution of the service of the public official. Arts. 320-326 LGAP. The more complex model envisages an oral deposition in cross-examination to discuss the evidence and the final measure is to be emitted within one month with the motivation to be provided in the successive month. Cfr. Art. 261, comma 1, LGAP. Durand, 2011, 305. Art. 3 of the implementation regulations permits the participation of the holder of a subjective right or legitimate interest or a party who demonstrates another typology of interest connected to the act to be adopted.

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party in the drawing up of the act in so far as the procedure could end up by having a bearing on one of their legal positions that, in reality, is not necessarily defined as a subjective right or legitimate interest.87 In Brazil the right to be heard is sanctioned by the Constitution of 1988 in Article 5 and is disciplined in detail by law n. 9.784/99.88 In Eastern Asia, the development of administrative law is in its initial phases89 and is marked by a tendential deference of the courts.90 In China administrative law is still in its developing stages91 and although forms of participation exist.92 They are for the most part granted arbitrarily by the authority and citizens do not have any rights in proceedings, as considered in the western idea of liberalconstitutional democracy. Hence this situation does not permit a correct comparison with the more advanced models. In Thailand the tendency to organise a system of administrative justice is quite recent.93 A similar situation is to be found in Indonesia where however the transformation process is in full swing.94 In Korea participation is mainly considered as a method for preventing corruption.95 In Japan participation is granted at the discretion of the agency. More formal procedures are instead followed in all the cases in which an authority intends annulling or revoking a previously issued authorisation or when the

87 88

89

90 91

92

93 94 95

On the topic A. Gordillo, Tratado de Derecho administrativo, Tomo II, Fundación de Derecho administrativo Buenos Aires, 1998, 10-12; Durand, 2011, 305 et seq. Art. 38. In Brazil too, an administrator can omit the notification of the start of proceedings in an emergency case. However, omission is permitted for the adoption of precautionary measures and not generically for every measure. It must in addition refer to a risk to life or national security such as to not permit a respect of the ordinary procedure. Cfr. Perlingeiro, 2011, 333. Since 1990, South East Asia, that looks to the western Countries, has been focused on legal innovations that interests the public law area too.; V.A. Harding, ‘Global Doctrine and Local Knowledge: Law in South East Asia’, The International and Comparative Law Quarterly, n. 1, 2002, 35-53; S. Fenwick, ‘Administrative Law and Judicial Review in Indonesia. The Search for Accountability’, in T. Ginsburg & A.H.Y. Chen (cur.), Administrative Law and Governance in Asia. Comparative Perspectives, Routledge, London-New York 2009, 329-352; A.H.Y. Chen, ‘Pathways of Western Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations’, Int. J. Const. Law, n. 4, 2010, 849-884. Cfr. R. Cooter & T. Ginsburg, ‘Comparative Judicial Discretion – An Empirical Test of Economic Models’, International Review of Law and Economics, n. 16, 1996, 295-313. Cfr. K. Lane Scheppele, ‘Administrative State Socialism and Its Constitutional Aftermath’, in S. Rose-Ackerman & P.L. Lindseth, Comparative Administrative Law, Edward Elgar Publishing, Cheltenham 2010, 92114. J. Ohnesorge, ‘Chinese Administrative Law in the Northeast Asian Mirror’, Journal of Transnational Law & Contemporary Problems, Vol. 16, n. 103, 2006, 146; J.P. Horsley, ‘Public Participation in the People’s Republic: Developing a More Participatory Governance Model in China’, https://law.yale.edu/system/files/documents/pdf/Intellectual_Life/CL-PP-PP_in_the__PRC_FINAL_91609.pdf. P. Leyland, ‘The Emergence of Administrative Justice in Thailand under the 1997 Constitution’, in Ginsburg & Chen (cur.), 2009, 230-248. Fenwick, 2009, 329-352. Cfr. J. Kim, ‘Government Reform in Republic of Korea’, in Ginsburg & Chen (cur.), 2009, 109.

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administrative action has a bearing on an acquired right.96 In other cases public bodies are rather free to choose the procedure that they deem to be the most appropriate.97

4.6.1

Procedural Guarantees in Comparative Law

The contents of the notifications of the start of proceedings, where regulated by laws, are mainly the same being that the aim of permitting participation in started proceedings is identical. In the open investigation model the acquisition of the elements must be attentive and meticulous, so much so that in some countries the gathering of any type of information is widely envisaged, including the depositions of witnesses and experts, the carrying out of inspections, surveys and the analysis of documents and observations contributed by interested parties. An authority must provide them with all the acquired knowledge in proceedings that is related to the adoption of the final act. The rules usually establish some content of the communications, but even where specific rules are not envisaged, the indications to be given are the same being that the function executed by the institute is the same. The depth of information constitutes instead a discretionary evaluation of the authority that must choose which are the essential facts to be highlighted for the purposes of the final decision. The public body must consent to a new investigation phase if new facts could form the basis of the final measure. The hearing in other terms must be conducted in an already advanced moment of the proceedings when the authority has already acquired all the information and documents. All these elements must therefore be brought to the knowledge of the interested parties for their effective participation. This situation exists in the United States where the courts direct the agencies towards carrying out evaluations of reasonableness and proportionality. The analysis regards the content of the notification of the start of proceedings to verify the adequacy of the information given and the effects that it can produce on subjective legal positions.98 In some cases, public bodies are obliged to communicate their intention to reject the petition of a citizen before the formal adoption of the act. This approach developed in Germany and then spread with a greater success in Italy, via Article 10 b of law n. 241/90.99

96

97 98 99

On the topic, D. Boling, ‘Access to Government-Held Information in Japan: Citizens “Right To Know” Bows to the Bureaucracy’, Stanford Journal of International Law, n. 1, 1998, 34 et seq.; T. Ginsburg, ‘The Politics of Transparency in Japanese Administrative Law’, in D.H. Foote (cur.), Law in Japan: A Turning Point, University of Washington Press, Seattle – London 2007, 304-311. H. Ushijima, ‘Administrative Law and Judicialized Governance in Japan’, in Ginsburg & Chen (cur.), 2009, 81-101. Cfr. Morgan v. UnitedStates, 304 U.S. 1 (Sup. Ct. 1938). Consiglio di Stato, sez. IV, 20 February 2013, n. 1056 that underlines the substantial aspect of the rejection notification.

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The introduction of this institute in the German experience marks an interesting theoretical contrast100. Normally a negative decision is adopted following a petition by a citizen. In the event of a flaw in the documentation the authority must request further documents or obtain clarifications before being able to reject the measure. German juridical thinking divided itself between those who believed that the public body should proceed with the hearing also in the event of the adoption of a reject act101 and others who deemed the institute to be applicable only when the authority based its decision on elements other than those deposited with the petition.102 The Federal Administrative Tribunal in reality manifested the tendency to not expand the hearing beyond those established by law.103 The institute is applied also in common law countries at the discretion of the agencies and when their action has a bearing on strong legal positions. In Germany and in Italy the efficacy of the provision is however conditioned by the substantial evaluation that conditions the invalidating effects. Today the institute has spread also in Latin America. In the Columbian system Article 35 of the Decree Law 01 of 1984 already established the duty for an authority to give parties the opportunity to express their opinion.104 Instead in Spain, the ratio of the duty to notify the start of proceedings envisaged by law 4/99 is different. In this experience there is also the idea to make known to the interested party the time limit in which the authority can adopt and communicate the final measure, as well as the effects that will derive from non-fulfilment of time limit. The needs for participation are observable above all in the advanced phases of proceedings, between the moment in which the investigation is completed and before the proposal of the measure is drawn up. The notification of the start of proceedings in Spain seems therefore rather aimed at the communication of the time limit of the proceedings and the effects that follow possible administrative inertia. The content of the informative notes are rather similar too. Normally data related to the office where the investigation is carried out and the persons in charge, are also communicated. The individuation of ‘the person in charge of proceedings’ is regulated with a particular attention in the Italian system. The act of the start of proceedings must indicate in fact the actual person to whom one can speak to in order to obtain information, acquire documents, present acts and observations. In Germany and in France some rules establish that specific responsibilities are to be assigned to an official, but there is not a detailed regulation, as in Italy. Here the person in charge of proceedings

100 Cfr. W. Schmitt – Glaeser, Partizipation an Verwaltungsentscheidungen’, VVDStRL, 1973, 31. 101 R. Stein, Die Anhörung im Verwaltungsverfahren nach, §28 VwVfG, Abhandlung, VR 1997, 240; F.O. Kopp & U. Ramsauer, Verwaltungsverfahrensgesetz, para. 28, C.H. Beck, München 2013. 102 Cfr. O.E. Krasney, Zur Anhörungspflicht im Verwaltungsverfahren’, NVwZ 1986, 338 et seq. 103 BVerwG, in DVBl, 1983, 271. 104 Arts. 5-42 law n. 1437/2011.

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is bound to carry out all the investigation activity and thus ascertains the facts, guarantees the regularity of proceedings, requests and acquires documents, declarations, technical checks and inspections. The person in charge convenes the conference of services, stimulates proceedings, maintains relationships with third parties and the addressees of the measures and effectuates notifications. In Italy, this person, if competent, also emits the final measure.

4.6.2

Investigation and Discretionary Power

There is therefore a fundamental tendency. Participation is modulated depending on the strength of the legal positions. The relationship between investigative phase and participation is conditioned by the balance that each experience tries to find between the need to ensure the respect of the right to a defence and the urgent needs of the administrative action. The principles of adequateness, reasonableness and a cost-benefit balance are applied also with regards to the spaces to be left to the citizens’ contribution.105 The United Kingdom and the United States, albeit each in the ambit of their own characteristics, manifest the tendency to modulate participation guarantees depending on the importance of the subjective legal positions. In the informal model the balancing test is carried out in the United States to evaluate the principles of the due process of law that are to be applied to every procedure. The agencies appraise, in a comparative analysis, the times of proceedings, the levels of intensity of the investigations, the relative costs, the modalities with which to guarantee transparency and participation, up to the choice of the type of proceedings to undertake. This analysis takes into account all these aspects including the possibility that their action is to be not approved in judicial review. The rule of law has reached such a level of flexibility, in the American experience,106 that the principle of legality has as yet to reach.

105 L.M. Dièz-Picazo, ‘La partecipazione del cittadino al procedimento amministrativo (osservazioni preliminari in chiave comparatistica)’, in Torchia (cur.), 1993, 65-76; Palici di Suni Prat, 1994, 25-33; M. Comba, ‘Il fondamento costituzionale del diritto al giusto procedimento in Italia: spunti di riflessione derivanti dalla comparazione con il due process of law statunitense’, in S. Sicardi & R. Ferrara (cur.), Itinerari e vicende del diritto pubblico in Italia. Amministrativisti e Costituzionalisti a confronto, Cedam, Padova 1998, 224. 106 In recent times in the United States, a doctrinal current has developed that studies the effects produced on the efficiency of an authority by a certain way to interpret the relationship between judicial procedure and proceedings.T.O. McGarity, ‘The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld’, Tex L. Rev., Vol. 75, n. 3, 1997, 525 et seq.; W.S. Jordan III, ‘Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?’, Nw. U. L. Rev., Vol. 94, 2000, 393 et seq.; W.N. Eskridge & L.E. Baer, Jr., ‘The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan’, GEO. L.J., n. 96, 2008, 1083-1126.

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In Germany, the duty to guarantee participation cannot lead to the invalidity of the final administrative act if it is provable that this omitted phase would not have had a bearing on the choice made by the public body.107 A similar approach is to be found in Spain, where the legal flaw of an administrative act does not entail the automatic annulment of the act if the administrative action was conducted without participation. The interested party must demonstrate the substantial efficacy of the effective exercise of the right to a defence in the proceedings.108 In Spain too therefore an administrative act cannot be annulled if the lacking participation would not have had a bearing on the content of the final act.109 In the Swedish experience the notification of the start of proceedings and the collaborative contribution of citizens are not indispensable if the measure does not have unfavourable effects on their legal positions.110 The law in force permits avoiding participation if it is evident that the administrative action would not however undergo any modification. Another particular exception is sanctioned by subsection 3 which permits ignoring participation if an administrator deems that the decision could become extremely complex, beyond the classic case in which there is an emergency. One can note that in the Swedish experience a summary of the principle aspects that characterise the French, German and American model are recognisable. The experience of the United States demonstrated that the opening out to participation can frequently entail procedural slowness. Likewise it can be noted that the French and English model allow participation to the addressees of unfavourable decisions. Furthermore in Germany the substantialistic model prevailed and it renders the formal flaws of the proceedings irrelevant when they could not have a bearing on the outcome of the final measure. In the German system this evaluation occurs with the control of proportionality that found in this country its genesis and its most refined evolution. The applicative difficulties were resolved in Sweden by shifting the focus onto discretionality,111 that could avoid an expansion of the procedural investigation when the final decision could be excessively complex or if the authority believes that the completed investigation is so exhaustive, as to consider futile participation in proceedings. In Italy the importance of non-participation is assessed according to the argumentations of the resistant authority and in relation, therefore, to the reasons that it is able to put forward to sustain the irrelevance of the contribution in proceedings. There is no doubt however that this substantial element reduces the idea stemming from the Austrian model 107 Cfr. in Italy Consiglio di Stato, Sez III, 21 January 2015, n. 203, in www.giustizia-amministrativa.it. 108 STS, sala III, sec. IV, n. 171/2005 del 20 January (on proc. Rec. N. 7357/2001) that confirms the principle of the non-invalidating nature of the adopted act by defect of the preventive communication. 109 J.A. Santamaria Pastor, Principios de derecho administrativo general, tomo II, Iustel, Madrid 2009, 140. 110 Sez. 17 Sweden AdministrativeProcedure Act [1986]. 111 S. Cinque, ‘Administrative discretion in the management of Swedish wolf policy’, Policy Studies, Vol. 32, 2011, 599-614.

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based on which it is in the procedure that the exercise of the right to a defence must be guaranteed. The judiciary however demonstrated that it did not share the approach that required the application in proceedings of the same guarantees of a fair trial.112

4.7

The Models

The comparative analysis shows two models with which participation is guaranteed. The most widespread form, that we could call narrow, limits the participation to the defence of citizens’ interests. In this model the authority takes care of the investigation, forms the content of the measure and communicates to the parties concerned the beginning of the procedure. The model has several variables. In countries that have adopted two forms of proceedings, one formal and one informal, but in most cases the informal model is used, allowing for greater flexibility. In Germany the informal procedure is regulated in detail, while in the United States the rules of informal adjudication are governed by the principles established by judiciary in accordance with the due process of law. A further difference in the model concerns the type of proceedings for which the duty to allow participation exists. In France the principle is not widespread but concerns cases in which the proceedings may cause disadvantages to final recipients. In Italy there is a widespread obligation to allow participation. However, in many experiences, the effects of the violation of participation rules have been mitigated due to the fact that the final measure cannot be annulled if the omitted participation could have had no effect. This modest relevance of violations of the procedural provisions, very strong in Germany, has spread to Italy and then France. Although the rules do not directly affect the duty to allow participation, it is obvious that they greatly influence its ambit of application. The extensive ability to use validation of illegal acts also affects the model. Another variable allows authorities more flexibility in choosing the procedures, the subjects to be involved and the opinions to be asked. This approach, which we could call flexible, finds its utmost affirmation in the United Kingdom, where the absence of a general discipline on the procedure and the use of fairness have permitted the development of a wide range of procedural rules. The principles have been established on the basis of natural justice and the Human Rights Act, with particular attention to the protection of the rights and interests of the addressees of administrative action. In this experience the rules on participation are modulated foremost with a remarkable focus at the effects that the action

112 Cfr. Consiglio di Stato, 26 March 2015, n. 1596.

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is causing. The model is flexible and is therefore based on the principles of rationality, proportionality, with the widespread application of fairness. The informal procedure adopted in the United States shows the same flexibility. However in this experience the type of assessments made by authorities change. The phenomenon is due to two main factors which have conditioned its genesis and its development. The first is constituted by the different configuration of executive power attributed to independent agencies and not to an administrative structure headed by a minister, responsible before Parliament. This condition has determined the effect that adjudication is issued by a neutral body with respect to political guidelines and it is based on the criterion of independence. The second, closely related to the first, is linked to the adoption of the constitutional principle of the due process of law that was adapted to administrative proceedings without the force of fairness. Unlike the English experience, American juridical thinking was not focused on rights when the procedure was not due. The general approach is affected by this genesis. In the choice of the procedural guarantees, the American agencies carry out a wide range of assessments and an economic analysis that characterise the experience. The principle of participation thus undergoes pressure that directs administrative action towards the analysis of adequacy and reasonableness through the balancing test. The second model permits widespread participation, regardless of the direct impact of administrative action on legal positions. This occurred in proceedings for the production of general administrative acts and rulemaking. It is an open model. From the United States, it spread to the European Community and it is progressively expanding into Spain with some openness in France. In the area of independent administrative authorities the mechanism is widely applied, mainly due to the need to ensure the representation of interests in public bodies without a solid institutional legitimisation. Its application is rather widespread in environmental proceedings but is also spreading into rulemaking and in various areas of administrative action governed by international agreements. It happens in procedures for determining health standards, in certain areas subject to regulation, financial markets, food security or air transport. In many of these areas there is no regulation of procedures, and authorities are required to conduct technical, scientific, regulatory, social and economic investigations in which participation is open to other authorities, representations, citizens. The role of participation is different from the other model. In this case, there is usually no assessment of the legal positions of those who intend to participate, the procedure is not of an inquisitorial nature, and the final rule may also be totally different from the hypothesis imagined by the authority.

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5 5.1

The Duty to Give Reasons The Apparent Convergences

Today authorities are obliged to give reasons. This rule is sustained by the evolution of juridical thinking, supported by the diffused affirmation of fundamental rights and the role that they have assumed in relation to administrative action. The principle now constitutes an established fact in all the main jurisdictions: administrative action must demonstrate the reasoning utilised and the rationality of the choices made.1 The evident limits of discretion, starting from the judicial review on the abuse of power up to the more refined forms of the analysis of proportionality, would not be possible nor would produce significant legal effects, if the duty to give reasons did not exist. Only through motivation can the reasoning that led to the adoption of an administrative act be reconstructed. The principle is deep-rooted in Europe, both in Western Europe as well as in Central-Eastern Europe, all the common law experiences, Latin America and in all the countries that have adopted more evolved models of administrative law. The role assumed by this function does not however leave any doubts on its radical affirmation in comparative law. Nevertheless there is in fact no uniform discipline. Therefore some countries have opted for the obligatory motivation of administrative acts while others have limited this necessity only to some measures that have a bearing on legal positions. Others have established the duty to give reasons only in cases of discretionary power. In various jurisdictions a general regulation is lacking, or giving reasons represents a choice of the authority.2 At times the law sanctions only the total absence of motivation and in other cases also the scant motivation. In some circumstances the defect of the exposition of the reasons determines the unlawfulness of the final measure. In other cases it is a reparable flaw, while in others it produces no invalidating effect at all. From this synthetic review emerges such a divergence of normative approaches that highlights the need for an analysis of the existing situation in the legal traditions. Only via a reconstruction diachronic and synchronic of the institution it is possible to understand to what extent

1

2

F. Schockweiler, ‘La motivation des décisions individuelles en droit communautaire et en droit national’, Cahiers dr.eur., n. 1-2. 1989, 9-33; Battini et al., 2007, 143 et seq. where the author points out the convergence between civil law Countries and common law Countries on the duty to give reasons, spec. 147; M. Cohen, ‘The Rule of Law as the Rule of Reasons (September 1, 2009)’, Archiv für Rechts – und Sozialphilosophie, Vol. 96, n. 1, 2010, 1-16; Clark, 2013-2014, 233. C. Wiener, ‘La motivation des décisions administratives en droit comparé’, Rev. int. dr. comp., n. 4, 1969, 779-795; R. Scarciglia, La motivazione dell’atto amministrativo. Profili ricostruttivi e analisi comparatistica, Giuffrè, Milano 1999, 53-162.

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and in what form the duty to give the reasons has been effectively implemented within the jurisdictions. In this historical moment the characteristics of the internal rules intertwine with the previsions imported from other systems, in such a way as to render arduous the task of identifying precise distinctive elements between the legal experiences. The fact that in Italy exists a general rule regarding the duty to give reasons, except for the envisaged exceptions, while in France the law regulates the cases in which there is this duty, is not sufficient to consider these two experiences as separate models. There is the necessity for an attentive analysis of the cases that intertwine in the rule-exception rapport in order to verify if effectively the systems present significant distinctions. The content of the motivation, its possible integration, the circumstance that must be explained in each measure or envisaged only for some typologies of acts, the utilisation of the per relationem technique, the consequences of the absence or the insufficient exposition of the reasons, the possible annulment and the effects on the addressees of the measures, are all elements that change in such a way as to not allow, but for general tendencies, to classify with precision the various typologies envisaged. Instead the differences are attenuated when the duty to give reasons concerns general administrative acts or rulemaking.

5.2

The Link between Participation and Duty to Give Reasons in France

French juridical thinking sees in the duty to give reasons an element of democracy, due to the fact that the authority makes aware to society the reasons behind its actions in a perspective of transparency and participation. It exalts its importance in order to guarantee the effective evaluation of the contribution given by citizens and its function, in the light of the reinforcement of judicial review.3 However it also envisages numerous applicative problems, in so much as it entails an increase in the cases of annulment of administrative decisions and compromises the serenity of the evaluations by authorities. According to other authors the duty to give reasons above all produces delays in public action and induces authorities, when they do not have a clear idea to abstain from deciding in favour of the production of the silent-refusal.4 The duty to give reasons was introduced therefore in a climate of notable perplexity. The rules envisaged three typologies of acts subject to an obligatory motivation. The first

3

4

Conseil d’État, Section du rapport et des etudes (cur.), Etude sur la motivation des actes administratifs, n. 37, Paris 1986. On the topic cfr. also G. Dupuis, ‘Les motifs des actes administratifs’, EDCE, n. 27, 19741975, 13 et seq. Chapus, 2001, 1132; Delgrange & Lombaert, 2005, 41.

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category regards individual measures that are unfavourable to the addressees:5 these are i) decisions that limit the exercise of public liberties, ii) or that constitute, in more general terms, police measures, iii) those that inflict a sanction, iv) acts of a second degree with which a measure previously assumed is withdrawn, v) those that subordinate the issuance of authorisations to conditions, vi) or that impose a limitation or a forfeiture, vii) rejection acts of an authorisation,6 or more generally, of an advantage if the applicant possesses the requirements established by law. The authority must therefore verify that the measure is effectively damaging to the citizens’ interests and that regards one of the matters indicated.7 The categories of measures deemed potentially damaging to rights and interests however are not clearly defined.8 On this point French authorities normally are guided by ministerial circulars that indicate in detail the typologies of the acts to be motivated,9 in the ambit of their respective competencies. However frequently the definition of the duty to give reasons is reached only after the administrative trial, when it is the judicial ruling that establishes whether or not the duty to give reasons exists in the case in question.10. Article 211-2 of decree 1341/2015 amplified the typologies of decisions that were to be obligatorily motivated but the modifications do not seem sufficient to clarify the doubts illustrated.11 The criterion of parallelism remains only unilateral and the cases in which the duty to give reasons is in force are reduced in relation to the cases in which the principle of participation is guaranteed. Indeed whenever French authorities are obliged to provide reasons for the choices adopted, they are bound preliminarily to permit participation but at the same time they are not always obliged, unless expressly envisaged, to give reasons in each case in which they guarantee citizens’ contribution. The parallelism between participation and motivation is not totally accomplished.

5

6 7

8

9 10 11

In relation to the notion of an unfavourable administrative act, there is no clear interpretive line. On the point, Conseil d’État, 9 December 1983 n. 43407, Vladescu, AJDA, 1984, 81; X. Delgrange & B. Lombaert, ‘La loi du 29 juillet 1991 relative à la motivation formelle des actes administratifs: question d’actualité’, in P. Jadoul & S. Van Drooghenbroeck (cur.), La motivation formelle des actes administratifs, La charte, bibliothèque de droit administratif, Bruxelles 2005, 41. Additional part of the law of 17 January 1986, Art. 26. The law 1979-587 sanctions the right to be informed, without delay, circa the reasons underlying administrative decisions. In addition, there are some exceptions if externalisations could constitute a threat to State secrets related to national defence, foreign policies, State and public security, the government of the currency and public credit, judicial procedures, personal privacy or in relation to emergency procedures. Cfr. S. Sur, ‘Sur l’obligation de motiver formellement les actes administratifs’, AJDA, 1974, 349-367; Delgrange & Lombaert, 2005, 7-15. Conseil d’État, 30 December 2009, Mme Reilles, AJDA, 2010, 806 citata da O. Gabarda, ‘Vers la généralisation de la motivation obligatoire des actes administratifs? Enjeux et perspectives d’évolutions autour du principe de la motivation facultative’, RFDA, n. 1, 2012, 65. Chapus, 2001, 1133. H. De Gaudemar, ‘L’obligation de motivation des actes administratifs unilatéraux en droit français’, in S. Caudal (cur.), La motivation en droit public, Dalloz, Paris 2013, 71. G. Eveillard, ‘L’adoption des actes administrative unilateraux’, RFDA, n. 1, 2016, 40-50.

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5.2.1

Features and Soft Formalism

There is another category of measures that are to be motivated: they are individual acts that are adopted notwithstanding the rules in force. In this case the rules require public authorities to externalise the reasons for which they ignored the normative in force. The duty to give reasons is exercised in a independent manner from the fact as to whether or not the final measure is unfavourable for the addressee. A different logic is implied. In the first case in fact the duty to explain the reasons is connected to a list of unfavourable measures on the interests of the addressee and to possibility of a judicial action. Knowing the reasons becomes thus an element of defence.12 Instead in the case of measures adopted notwithstanding the current regulations the irrelevance of the prejudicial nature on the interests of the addressees highlights immediately that it is not the moment successive to the judicial action that founds the logic of rules. The French system successively faced the question of giving reasons for tacit acts, with Article 232-4 of ordinance n. 1341/2015. The regulation dates back to Article 5 of the law of 1979, integrated by case law and obliges an authority to give the reasons underlying the tacit measure of rejection, within a time limit of 30 days from the request. The rules leave open to the interested parties the possibility to decide whether or not they wish to know the reasons of the tacit measure of rejection. The non-communication of the reasons renders unlawful the measure formed via silent rejection.13 The analysis of the illegitimacy shifts thus onto an element successive to the tacit rejection, that is to say, onto the violation of duty to give reasons within the month. The mechanism is not easy to apply in the cases of tacit consent.14 In this case it would be the third party having an interest in knowing the reasons of the tacit measure and take advantage of the possible invalidity: the simple lack of the communication of the reasons would be sufficient to render invalid the measure formed due to administrative inertia. This circumstance does not correspond to the logic of law. Ulterior sectorial rules exist that impose the duty to give reasons for specific cases.15

12

13 14 15

Conseil d’État, 2 April 2013 n. 223.089, Société anonyme de droit public A.S.T.R.I.D., that underlines the necessity for the completeness of the motivation in order to permit an administrative judge to control the exactness, admissibility and adequacy of the motives expressed. In this sense also the Conseil d’État, 26 April 2012, n. 219.062, Coune. Conseil d’État, 7 November 1975, Laglaine, Dr.adm., 1975, 549; Idem, 17 October 1986, Chabot, Dr.adm., 1986, n. 540; Chapus, 2001, 1139 et seq.; Cassia, 2009, 33. Refer to V. De Falco, ‘Il silenzio assenso in Francia. Questioni applicative a confronto con l’esperienza italiana’, Diritto Pubblico Comparato Europeo, n. 1, 2016, 170. Art. 2126-6 of the CGCT in relation to the motivation of dissolution decrees of town councils, some cases regarding also decisions of a regulatory nature, such as in the question of the municipal police. The Art. 2213-2 et seq. of the CGCT concerns decisions adopted by collective bodies composed of representatives of the interested professions.

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In this experience thus duty to give reasons and participation in proceedings are interconnected in a flexible manner. This adaptability reflects also on the importance of imperfections in motivation, as they emerge from the case law analysis where a formalist approach has never been existed. Where envisaged the motivation has a substantial function aimed at the reconstruction of the reasoning underlying the adoption of a specific act; consequently there is no necessity to give the reasons if it is possible to extrapolate these elements from other documents in the dossier of the proceedings.16 It is clear that this approach is different from the dogma of the formal flaws of the measure. The element of transparency substitutes the duty to give reasons, that are thus cognisable also via other elements. Frequently there is the possibility that the reasons are given successively17 or even in advance.18 The institution is thus a form of protection of private interests but at the same time is attracted towards the tendency to guarantee the simplification of the administrative action.19 Motivation is not necessary in every case in which, with the exception of a specific law, the reasoning followed in an administrative action can be reconstructed via other factors.

5.3

The German Juridical Thinking

In Germany the duty to give reasons is reduced by a vast array of exceptions.20 The principle was reached in stages and above all by law of the administrative federal court that had begun to observe it from the point of view of the addressee of the unfavourable act.21 Consequently reasons were not required in cases in which an authority had approved the petition of a citizen and third parties had not been damaged by the decision.22 Currently the law envisages further cases of exclusion from the duty to give reasons among which the most problematic is knowledge of the factual and legal presuppositions on which the administrative action was founded. However this is a problematic aspect that, in reality, does not have a wide diffusion, due to two reasons: i) there is the tendency to interpret in a restrictive way the rules related to the exceptions to the duty to provide

16 17 18 19

20 21

22

Conseil d’État, 9 November 1984, Comité dauphinois d’hygiène industrielle, AJDA, 1985, 355; Conseil d’État, 5 November 2003 n. 224 941; Conseil d’État, 7 May 2015, n. 373313, www.legifrance.fr. Conseil d’État, 5 May 1986, Leblanc et Tissier, AJDA, 1986, 390. Conseil d’État, 10 January 1986, Croquette, Droit Administratif, 1986, n. 95, 351 et seq. On the topic of the generalisation of the duty to give reasons as an instrument for administrative rationalisation and simplification see J.L. Autin, ‘La motivation des actes administratifs unilatéraux, entre tradition nationale et évolution des droits européens’, Rev. fr. adm. pubbl., n. 137-138, 2011, 95; Gabarda, 2012, 61-64. Art. 39, comma 2, VwVfG. BVerfGE 6, 32, 44. J. Zschacke, ‘Die Begründung der Verwaltungsakte und ihre Bedeutung im Verwaltungsstreitverfahren’, NJW, 1954, 413 et seq.; W. Schick, ‘Notwendigkeit und Funktion der Begründung von Verwaltungsakten’, Jus, 1971, 1 et seq. Scarciglia, 1999, 132.

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reasons, ii) in the cases of discretionary power, the authority is more inspired to provide a detailed exposition of the reasons that led it to make a precise choice rather than hide its decisions.23 Since judicial review stretched right up to the analysis of rationality and proportionality, administrative action could be controlled to a point that touches the boundaries of administrative merit. A discretionary choice, based on incorrect analysis of the costs and benefits in proceedings, could be declared unlawful by courts. According to the German juridical thinking this effect is equivalent to losing credibility. Thus the authority has the interest to provide as many elements as possible to sustain the rationality underpinning the choice made.24 On the bases of this approach the authority has duty to give reasons about the essential points on which its action is founded, from which it is possible hence to reconstruct the reasoning that led to the adoption of a specific measure. From the same perspective the convalidation of illegal administrative acts due to the defect of motivation finds in Germany its maximum expression. The approach of German law in fact allows considering valid an administrative act devoid of a motivation if this element is added later. The only limit initially was the start of a judicial action. Successively this time limit was moved until the definitive conclusion of the administrative trial. An authority, once having issued a decision without providing the reasons, does not lose the power to integrate the missing part of the act. From this viewpoint the administrative action continues also subsequently to the adoption of the measure and ends only when the ruling issued by the administrative judge becomes definitive. It is clear how in essence in Germany prevails the idea that a public body must try to affirm however its determination, with an evident limitation of the role conferred to the judicial control and a possible deterioration of the rights of the addressees of the measures.25 In this jurisdiction participation is allowed to possessors of an individual legal interest and does not extend to organisations and associations representing diffused or collective interests nor to the entire category of administrative acts. It refers above all to measures that can create, modify, or extinguish legal positions.26 Similarly to the French experience thus there is no parallelism between participation and motivation. However in Germany, precisely due to the internal set-up, the tendency of the authorities to give the reasons

23 24

25 26

F.O. Kopp, ‘Die Heilung von Mängeln des Verwaltungsverfahrens und das Nachschieben von Gründen in Verwaltungsverfahren’, VerwArch., n. 61, 1970, 219 et seq.; Scarciglia, 1999, 134. R. Sprung & B. König, (cur.), Die Entscheidungsbegründung in europäischenVerfahrensrechten und imVerfahrenvor international Gerichten, Springer-Verlag, Wien-New York 1974, where the orientation to give reasons only for administrative acts that have a bearing on legally protected interests, is recorded. SchmidtAβsmann, 1991, 371 et seq. On the topic P. Stelkens et al., Verwaltungsverfahrensgesetz – Kommentar, §46, n. 7, C.H. Beck, München 1983. Despite some opening by case law and jurists believed the institute of participation to be not extendible beyond the cases envisaged by law. On the point, see Stelkens et al., 1983, para. 8, cpv. 7.

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founded by the legitimisation that they receive, seems more extensive respect to French experience.

5.4

The Evolution of Substantial Elements in Italy

At the beginning of the twentieth century Italian juridical thinking was particularly sceptical towards the introduction of the general duty to give reasons. The rule was supplied by Article 3, comma 1, of the law n. 2248.27 It required that the affairs by public authorities should be carried out taking into account the observations and the written deductions provided by citizens and with motivated decrees. The extensive interpretation of this rule could have easily entailed the diffused duty to give reasons for every administrative measure.28 However the more influential doctrine highlighted the risk of an excessive delay of administrative action that would have proved to be disadvantageous to citizens,29 in the same way that was occurring in France juridical thinking. It was the development of the jurisdictional function of the Council of State that hence induced Italy to progressively change its approach. The protection of legitimate interests would have been difficult in judicial review, without duty to give reasons. The Council of State followed almost automatically the approach undertaken in France. Thus began the judicial review of the excess of power when an administrative act was illogical and irrational.30 The Italian courts’ decisions considered the lack of a motivation as a symptom of a bad use of administrative power.31 However only a small number of categories of measures were subjected to the duty to give reasons,32 that in the absence of a law could not be considered to be extended to all the typologies of administrative acts. There was individuated some typical proceedings that should be concluded with motivated acts above all by virtue of the incisiveness of the

27 28 29 30

31 32

Law 20 March 1865, n. 2248, all. E. Thus L. Ragnisco, Nota a Consiglio di Stato 15 May 1908, Foro it., 1909, III, 10. F. Cammeo, ‘Gli atti amministrativi e l’obbligo di motivazione’, Giur. It., n. 3, 1908, 253 et seq. G. Zanobini, ‘Eccesso di potere e violazione di legge’, Riv. dir. comm., 1927, II; for the historical reconstruction see G. Palma, ‘Note intorno alle nozioni di conformità alla legge ed eccesso di potere nella evoluzione della giurisprudenza’, Rass. dir. pubbl., 1963, 60 et seq.; G. Abbamonte, ‘L’eccesso di potere. Origine giurisprudenziale del concetto nell’ordinamento italiano (1877-1892)’, Dir.proc. amm., 1986, 68 et seq. M. De Donno, ‘Riflessioni sulla “Motivazioni in diritto del provvedimento amministrativo”’, Riv. trim. dir. pubbl., n. 3, 2013, 629-672. Among the more important cases, one recalls some rules in the question of the public sector (presidential decree 10 January 1957, n. 3) in relation to measures related to time off work, transfers or the application of disciplinary sanctions to employees, 3 March 1934, n. 383 in relation to sanction procedures against municipal employees and presidential decree 2 December 1970, n. 1070 on the topic of the transfer of public sector employees).

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Administrative Action and Procedures in Comparative Law measures on subjective legal positions.33 Therefore the authorities had duty to give reasons about the decisional measures of administrative appeals, withdrawal favourable acts already issued, sanction measures or in the cases in which they acted in contradiction with similar decisions previously adopted. Contemporarily judiciary began to request a motivation also in cases in which the proceedings were particularly complex and regardless of the direct damage to a legal position.34 Hence in Italy too, the German tendency to give more predominance to the objectivity of the choice adopted and give to citizens guarantees on the correct exercise of discretionary power, was beginning to affirm itself.35 The motivation was requested for only discretionary administrative action. In the period antecedent to the law n. 241/90 the duty to give reasons existed thus for a vast array of administrative acts. Certain data stems from case law in relation to the content: i) the motivation had to be congruous, pertinent to the concrete case and to the interests advanced by the parties of the proceedings, ii) it had not to be ambiguous, as happened when its content had contrasting argumentations, iii) there had not to be contradictions between to the results of the investigation or between the reasons expressed and the measure adopted. This approach however did not require to give all the reasons. It was sufficient that authorities indicated simply one single valid motive also in the presence of plurality of reasons. The sufficient content of the motivation was acknowledged in the indications of the factual presuppositions and the reasons that form the bases of the act, with a radical tendency to avoid an analysis of the discretionary choices and with the exception of unreasonable acts.36 The law n. 241 of 1990 prescribed the general duty to give reasons with some exclusions dictated both by special rules or courts’ decisions. The defect of the motivation constituted the lack of an essential element of an administrative measure that entailed the annulment of the act in the majority of the cases in which it was obligatorily envisaged. The approach is typical of the dogma of the administrative act that also characterises the Spanish experience. However this idea stems also from other and different considerations. The motivation is linked to the results of investigation and the choice of the public body must evaluate the various interests at stake of the addressees of the final measures. As a direct effect of this

33

34 35 36

C.M. Iaccarino, Studi sulla motivazione con particolare riguardo agli atti amministrativi, Società editrice del foro italiano, Roma 1933, 42 et seq.; C. Mortati, ‘Obbligo di motivazione e sufficienza della motivazione degli atti amministrativi’, Giur. It., n. 3, 1943, 2 et seq.; G. Miele, ‘Il requisito della motivazione negli atti amministrativi’, Giur. compl. cass. civ., 1945, 415 et seq.; M.S. Giannini, ‘Motivazione dell’atto amministrativo’, Enc. Dir., Giuffrè, Milano 1977, 262 et seq.; G. Corso, ‘Motivazione dell’atto amministrativo’, Enc. Dir., Agg., Giuffrè, Milano 2001, 777 et seq. In relation to the motivations deemed necessary, Giannini, 1977, 265 et seq.; A. Romano Tassone, Motivazione dei provvedimenti amministrativi e sindacato di legittimità, Giuffrè, Milano 1987, 262 et seq. Scarciglia, 1999, 183. Giannini, 1977, 265 et seq.

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approach the initial version of law 241 of 1990 allowed the annulment of an administrative measure due to the absence of an obligatory motivation or the non-notification of the start of proceedings. Successively the substantialist approach of the legal flaws was affirmed by case law.37 In cases in which there had been no notification of the start of proceedings, but the authority had however evaluated all the significant interests of the addressee of the measure, the annulment of an administrative act seemed an excessive formalism. Hence Italian juridical thinking began to acknowledge the idea that for years had been affirmed in Germany.38 The developments on the substantial element were thus notably influenced by the distinction between presuppositions and reasons. The presuppositions indicate the elements on which a decisional process is founded. The reasons instead represent the factors, both logical as well as argumentative that guide the administrative action towards a specific result. Depending thus on the level of precision, the motivation was distinguished in a strict sense, identified in the synthetic exposition of the reasons and in a wider sense where there was the necessity to indicate the factual and legal presuppositions and the logical argumentations of the decision.39 The approach that stemmed from the expansion of judicial review led even the most tenacious advocates of the formal theory40 to use further distinctions relative to the complexity of administrative action and its discretionary power. This opened the door to a judicial review that went beyond the formal presence of the motivation but included verifying the sufficiency and the presence of elements that permitted the attentive evaluation of the correspondence between public function, the conferred discretionality and the exercise of power. In this way the analysis of the sufficiency of the motivation permitted an administrative judge to specify, in an ever more incisive manner, which content should be included in the final measure, that also could even be different depending on the individual proceedings, the importance of the interests at stake and the complexity of the administrative action. Hence the same formalistic approach did not prevent a review of the sufficiency of the content of the motivation nor its modulation in relation to the typology and the complexity of the proceedings and the exercise of discretionary power. It appears evident that, once the flexibility of the content of the essential element of the measure was permitted, it was easy to sustain also the irrelevance of that specific element of the act if its lacking did not entail any possible modification of the final measure. This effect occurred above all in cases of powers without discretionality in which the comparative 37

38 39 40

P.M. Vipiana Perpetua, Gli atti amministrativi: vizi di legittimità e di merito, cause di nullità ed irregolarità, Cedam, Padova, 2003 167; F.G. Scoca, ‘I vizi formali nel sistema delle invalidità dei provvedimenti amministrativi’, in V. Parisio (cur.), Vizi formali, procedimento e processo amministrativo, Giuffrè, Milano 2004, 56 et seq. Giannini, 1977, 258; E. Casetta, ‘Attività e atto amministrativo’, Riv. trim. dir. pubbl., 1957, 293 et seq. The debate is summarized in Scarciglia, 1999, 39 et seq. On the topic, Scarciglia, 1999, 183 et seq. that reconstructs the evolution of the Italian model. In relation to the reconstruction of the formal theory of motivation cfr. Romano Tassone, 1987, 9.

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function of interests was lacking. The link hence between motivation and the exercise of discretionary power opened a new phase that, once permitted also by the followers of the formalistic theory, represented the negation of the theoretical approach that had permitted its acknowledgement. The principle of legality assumed an substantial importance and the relevance of the formalistic aspect was restricted when the annulment of a measure would have led to the partial and momentary satisfaction of a legitimate interest, if the annulment was only due to its form. The Italian courts rejected the relevance of the formal flaws if the content could not have however been different. This was the choice made with the reform of law n. 241/90.41 The evolutionary process also influenced the theoretical approach on the function of the motivation that no longer constituted a simple formal element of the measure. In many cases an authority was not bound to provide reasons by virtue of the restrictive nature of power. In contrast to the German case however the Italian approach is more cautious in supporting the possibility that a public body, once it had issued a measure devoid of a motivation, could rectify this defect during the process.42 The tendency to prohibit a posthumous motivation is coherent with the traditional approach that in Italy did not acknowledge acts with a successive motivation, starting from the typical content of civil or penal rulings. The approach is connected to modalities of the administrative process, initially considered as a judgement on the measure and not on the relationship. But this is a tendency in continual evolution and which manifests clearly contrasting signals.43

41

42 43

See Art. 3, comma 3, law n. 241/90 that allows a motivation per relationem. Art. 21 octies, law n. 241/90 comma, 2 prohibits in addition the annulment of a measure adopted in violation of the norms on procedures or on the form of acts when, by effect of the restrictive nature of the measure, it appears evident that its ruling content could not have been different to that adopted. The administrative measure is not however annullable due to a non-notification of the start of proceedings if the administrator demonstrates in court that the content of the measure could not have been different to that adopted. On the point, Consiglio di Stato, Sec. IV, 9 October 2012, n. 5257, www.giustizia-amministrativa.it. Cfr. also F. Caringella, Manuale di diritto amministrativo, Dike, Rome 2016, 1424. On the topic Consiglio Stato Sez. V, 20 August 2013, n. 4194 that considers it possible posthumous motivation. It is precisely in consideration of the progressive affirmation of the substantial component of motivation that favourable orientations to posthumous integration are being affirmed in Italy too. Cfr. Consiglio Stato, Sec. IV, 4 February 2014, n. 1018, www.giustizia-amministrativa.it. A diverse opinion was expressed by the III section of the Council of State 7 April 2014 n. 1629 for which the defect of motivation could not fall into the applicative cases of Art. 21-octies, sub. second, due to the fact that “the motivation of the measure constitutes the premise, the foundation, the barycentre and the very essence of the legitimate exercise of administrative power, and thus, becomes a safeguard of irreplaceable substantial legality.”

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5.5

The Duty to Give Reasons

The Spanish Approach and Its Influence in Latin America

In Spain the duty to give reasons dates back to 1957.44 In the traditional set-up in fact one can note an initial dichotomy between two distinct moments of administrative action. On the one hand there is the procedure, with all its phases described and regulated in detail and on the other hand there is the administrative act, with a theoretical model that reconstructs it as a conceptual category of private law. The duty to give reasons is part of the study of the elements that make up an administrative act.45 In turn Spanish juridical thinking has never dwelled with particular attention on the duty to give reasons. No particular importance was given to the absence of this element if however the addressee of the final act knew the reasons on which the administrative action was founded, via the analysis of the documents inserted in the investigation dossier. The duty to give reasons for acts that directly damaged fundamental rights began to affirm itself after the Constitution of 1978, due to the work of the constitutional Tribunal.46 It conferred a particular importance to fundamental rights in relation to which administrative action must give reasons.47 In 1992 the law followed a similar approach to the French model. There were cases in which the motivation was obligatory but there was no such general obligation, as in Italy. The duty to give reasons regarded: i) acts that entailed limitations to the exercise of subjective rights and legitimate interests, ii) acts of a second degree, and acts that distanced themselves from criteria previously followed or opinions given by advisory bodies. There was also a more ample category that included acts adopted in the exercise of discretionary powers or that were necessary by law, as well as those acts that concluded selection and competitive procedures. A further category regarded the agreements with which an act was suspended or those applicative to emergency procedures or the extention of established time limits.48 The categories are very different, due to the combination enacted by the Spanish legislator between the substantial aspect and the formal aspect connected to duty to give rea-

44 45

46 47

48

Art. 39, comma 2, of decree 26 July 1957. M.M. Fernando Pablo, ‘La motivación del acto administrativo en la Ley 30/92’, in L. Lópes Rodó & D. Freitas Do Amaral, (cur.), Procedimiento administrativo: ponencias del coloquio hispano-portugués, Tecnos, Madrid 1994, 193-218. Tribunal Constitucional, 17 July 1981 n. 26, BOE, 1981, 13; G. Ohanian Hagopian, ‘El Derecho Humano a las decisiones motivadas’, LJU, Tomo 130, 97 et seq. The duty to give reasons has its constitutional foundations in Art. 72. It falls into the category of citizens’ rights to know the reasons for which a specific measure is adopted, that has a bearing on the interests of the addressees. Cfr. Sentencia del Juzgado Letrado de lo Contencioso Administrativo de 2do. Turno No. 18 de 4-IV-2000, published in ADA T. X, caso 121. For the Spanish Constitutional Tribunal cfr. Sentencias 88/94, 11/85, 14, 18 y 472/1986. The number of acts subjected to an obligatory motivation is now regulated by Art. 35 of law n. 39 of 1 October 2015.

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Administrative Action and Procedures in Comparative Law sons.49 Despite the fact that there was an intense debate there were cases in which both the motivation per relationem, as well as the possibility that the authority could present the reasons of the measure successively to its adoption, were permitted.50 The oscillations depended on the interests implicated in each case.51 In this experience too a substantialist and less formal model began to affirm itself. The authors who believed it was possible the posthumous integration of the motivation analysed the malfunctions that were created. The annulment of an administrative act for defects of form determinated a situation that is only momentarily advantageous for citizens. An authority could always adopt the act of the same content and provide the missing motivation successively to the court judgment. There is always the possibility that a public body could carry out a new evaluation and adopt a new act that proves to be even more damaging to the legal positions of the addressees in comparison to the challenged act. The substantialist approach in Spain was set on the relationship between judicial action and guarantees for the addressees of the measures, above all in virtue of the constitutional relevance of the duty to give reasons. The theoretical set-up of the German juridical thinking was different. In Latin America the approach is similar. The motivation was not considered an important element in itself but rather as the natural consequence of all the principles elaborated in the laws on procedures.52 The absence of a motivation could constitute a rectifiable defect in the general need to safeguard the effects of administrative acts. Based on the Portuguese legal tradition,53 in Brazil the duty to give reasons exists when the final act has a bearing on legal positions.54 The motivation must be explicit, clear and congruent in relation to the results of the investigation and indicate the factual and legal presuppositions on which the administrative action was founded. However, as an element of simplification, the Brazilian system allow a standardised motivation in cases analogous to those already decided.55 Indeed Brazil is marked by a substantial version of the duty to give reasons 49 50

51 52 53 54 55

In general, for discretional acts, the obligation is sanctioned also be Art. 21 of Decree 30/003 “Normas de Conducta de la FunciónPública.” E. Garcia De Enterria, Curso de Derecho Administrativo, Tomo I, Civitas, Madrid 1989, 549; A.M.M. Molina, ‘La motivación y la notificatión de los actos administrativos’, Documentatión Administrativa, n. 254-255, 1999, 159-165; X. Rodríguez-Arana Muñoz, ‘Discrecionalidad y motivación del acto administrativo en la Ley española de procedimiento administrativo’, Revista del la Facultad de Derecho, n. 67, 2001, 207-229. It is evident that the motivation provided must be sufficient in order to support the reasons underlying the adopted measure and be comprehensible both for the interested party as well as for the judicial control. Cfr. STS (sala 3°), 30 July 2014 (rec. N. 3288/2011), in M.P. Quecedo (cur.), Código de Régimen Jurídico de las Administraciones Públicas y de Procedimiento Administrativo, Tirant lo Blanch, Valencia 2015, 271. Conversely cfr. M.S. Marienhoff, Tratado de Derecho Administrativo, tomo II, Editorial Abeledo Perrot, Bueno Asaires 1977, 331. Ruling T-204/12 of 14 March 2012 of the Constitutional Court in Columbia confers the same constitutional importance to the duty to give reasons that was recorded in Spain. The motivation of an administrative act is expressly requested in the Portuguese constitution of 1976 in Art. 268, when it has a bearing on protected rights and interests. Art. 50, Law n. 9.784/98. Art. 50, comma 2.

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that is necessary only in case of discretionary power. The logic of the law lies thus in the democratisation of administrative action by means of participation, and in the possibility to review the errors of the acts in a judicial action.

5.6

Fairness and Duty to Give Reasons in the English System

In this experience the emergence of the duty to give reasons is based on the English legal tradition,56 integrated by data stemming from EU law and from the ECHR.57 In many cases the duty stems from the Statutes58 that attribute the public power to the authority. In an initial moment English juridical thinking focused on the consequences that the duty to give reasons could have had on the efficacy of administrative action,59 above all in cases in which there existed discordant opinions in decision making.60 It was the link between the duty to give reasons and the fairness that successively pushed courts towards the idea that its missing would have hindered an efficacious protection in judicial action.61 This approach connected the duty to give reasons and the needs of procedural guarantees. English juridical thinking noted that the duty to give reasons could in reality follow a differentiated regime, depending on the legal position. It was not necessary therefore to affirm the general duty to give reasons to all administrative decisions,62 due to the fact that it appeared functional to the right to defence only in cases in which the measure had a bearing on strong interests,63 such a personal freedom, property and assets. Today public bodies evaluate case by case on the bases of the courts’ decisions. In fact the absence of reasons is deemed to be arbitrary when strong subjective legal positions are

56

57 58

59 60

61

62 63

P. Craig, ‘The Common Law, Reasons and Administrative Justice’, CLJ, n. 53, 1994, 282-302; D. Toube, ‘Requiring Reasons at Common Law’, JR, 1997, 68-74; P. Neill, ‘The Duty to Give Reasons: The Openness of Decision-making’, in C. Forsyth & I. Hare (cur.), The Golden Metwand and the Crooked Cord, Clarendon Press, Oxford 1998, 161 et seq.; M. Elliot, ‘Has the Common Law Duty to Give Reasons Come of Age Yet ?’, Public Law, n. 1, 2011, 56-74; Craig, 2012, 370 et seq. McKerr v. United Kingdom (2002), 34 Racc. CEDU 20. On the nature and the scope of a statutory duty, see South Bucks District Council v. Porter (n. 2) [2004] 1 WLR 1953. Art. 44 of the Nationality Act of 1981 expressly establishes that an authority is not bound to give the reasons for which, on the topic of the conferment of the citizenry, the exercise of discretional power is envisaged. Craig, 2012, 370 that analyses the institute of motivation in the ambit of the treatise of the guarantees borrowed from natural justice on the right to be heard. In relation to the advantages and the disadvantages connected to the duty to give reasons in the English judiciary cfr. R v. Higher Education Funding Council, ex P Institute of Dental Surgery [1994], All E.R. 651. Juridical thinking is reconstructed by Craig, 2012, 370-371. Wrights’ Canadian Ropes [1947] A.C. 109. Alexander Machinery [Dudlley] Ltd v. Crabtree [1974] I.C.R. 120 et seq. Dannenberg [1984] Q.B. 766-775. R v. Secretary of State for the Home Department ex parte Pegg [1995] C.O.D. 84, DC. R v. Higher Education Funding Council, ex P Institute of Dental Surgery [1994], All E.R. 651. Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997 HL. Craig, 2012, 371.

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Administrative Action and Procedures in Comparative Law at stake. However this approach was reduced in the Lonrho case.64 The evaluation depends also on the existence of a legitimate expectation, in which case the authority has to give the reasons for which it deems it necessary to distance itself from the previous case.65 In other words English juridical thinking analyses the problem of the duty to give reasons in terms of fairness.66 It highlights the advantages that it entails in so much as it facilitates the evaluations of courts, permits the analysis of reasonableness and proportionality, allows to verify the application of EU rules and prompts administrators to consider the opinions expressed by citizens in proceedings. The duty to give reasons reinforces the citizens’ confidence and the legitimisation of the authority.67 The issue is never dealt with in terms of the content of the final measure. In manuals the duty to give reasons can be observed more or less in the principles of the judicial review. In other cases there are separate paragraphs in the chapters that regard the limits of administrative discretionality.68 There is no particular focus on the motivation in itself, due to the fact that the real problem in this experience is focused on the antecedent moment to the formation of the administrative will.69 A further innovating push was given by the link between the duty to give reasons and the principle of transparency, when the open government model began to assert itself.

5.7

The Characteristics in the United States

In the United States the rules are clear. Section 556 of the Administrative Procedure Act requires that all the testimonies and other evidences utilised in the proceedings are to be transcribed and that on such data the final evaluation must be based. Section n. 557 prescribes that the order adopted following the formal adjudication must include the content of the elements that emerged during the investigation and its conclusions, the reasons of the decision taken, in relation to facts, norms and the discretionary activity exercised.70 In substance the authority is bound to indicate all the data and the reasons on which the final decision is founded. The duty to give reasons covers the duplex function of

64 65 66

67 68 69 70

Lonrho Plc v. Secretary of State for Trade and Industry [1989] 2 All E.R. 609 HL. R. v. Civil Service Appeal Board, ex p. Cunninghan [1991] 4 All E.R. 310 CA. R. v. Home Secretary, ex p. Santillo, 1981, Q.B., 778. In relation to fairness and to the related needs of the addressees of the measures to know the motivations of the measures adopted against them R. v. Civil Service Appeal Board, ex p Cunningham [1991] 4 All E.R. 310, 323; R. v. Secretary of State for the Home Department, ex p Doody (1994) 1 AC 531, 564; Craig, 2012, 374-377. G. Richardson, ‘The Duty to Give Reasons: Potential and Practice’, Public Law, 1986, 437 et seq. Cane, 2011, 140 et seq. I. Ward, ‘Reasons for Decisions – A Way Forward’, Admin. L. Rev., 1993, 283. B.R. Clark, ‘APA Deference After Independent Living Center: Why Informal Adjudicatory Action Needs a Hard Look’, Kentucky Law Journal, Vol. 102, 2013-2014, 211-254.

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making it possible for the agencies to account for their operate71 and, at the same time, allow an efficacious judicial review that would not be possible without the motivation of the final measures. The rule is related to the formal procedure of adjudication and constitutes the application of the principle based on which the decision must be issued on the basis of that which emerged in the hearing and the acquired documentation. Otherwise the order could be annulled in judicial review.72 The situation changes in cases in which the agency follows an informal procedure of adjudication. In this case the Act does not require an exact correspondence between the acquired elements in the investigation phase and the content of the final measure, due to the fact that a brief exposition of the reasons is considered sufficient and only in relation to cases of rejection measures of requests presented.73 In other words in the majority of cases there does not exist a general duty to give reasons, that is acknowledged only for rejection measures and in the form of a summarising exposition of the data that led to a specific decision. For almost all the procedures that are adopted in the United States one regulation does not exist but rather a heterogeneous situation, due to both the diversity of the rules adopted by each agency, as well as the flexibility with which the principles of due process can be applied. Even the duty to give reasons therefore, in the same way that occurred for the participation, oscillates between procedures in which it does not appear and others in which it becomes fundamental for a lawful administrative action.74 After all the identity of the situation between the scope of the investigation phase and the content of the motivation constitute the natural consequence of the application of the due process to proceedings.75 If the agency adopts decisions that regard important aspects of the life of citizens, the principles of due process would require on the one hand, that the widest participation by the subjects involved be permitted,76 and on the other hand, that the administrators have to give the reasons and the factual and legal presuppositions that led them to assume a specific resolution.77 These elements are typically requested in relation to measures that

71 72

73 74 75 76

77

A.S. Shapiro et al., ‘The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy’, Wake Forest L. Rev., n. 47, 2012, 463-466. R.S. Catz, ‘Due Process and Federal Grant Termination: Challenging Agency Discretion through a Reasons Requirement’, Wash. U. L. Q., Vol. 59, n. 4, 1982, 1067-1138; on the point see also S.A. Shapiro & R. Murphy, ‘Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation’, University of California, Davis, Vol. 48, 2015, 1457-1508. Sez. 555 Apa. Catz, 1982, 1067-1138. Clark, 2013-2014, 233. On the question of the expansion of the guarantees of due process also to third parties Cfr. J.L. Mashaw, ‘Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance’, Geo. Wash. L. Rev., Vol. 76, n. 1, 2007, 99-124. Clark, 2013-2014, 242.

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have a bearing on specific subjects whose interests could be damaged. In a similar way to the conditions requested for participation, the duty to give reasons is excluded if the authority does not possess any evaluation power or if its decision cannot be in any way influenced by the citizens’ participation. As occurs in relation to the hearing in the informal adjudication, even the duty to give reasons is subject, in its flexibility, to the balancing test in which the agency evaluates the costs and benefits. The Chenery’s78 case affirmed the ban on posthumous motivations, due to the fact that the possibility to give reasons after the adoption of the measure would have reduced the efficacy and the incisiveness of the judicial review.79 The principle constituted a fundamental element in American administrative law but today it is subject to criticism by eminent exponents that tend to confer to authorities the discretionary evaluation case by case,80 in the same way that occurs for the remaining elements of the duty to give reasons.

5.8

Discordances in Diachronic Analysis: Three Models in Transformation

The duty to give reasons was developed simultaneously to the increase in the spaces granted to judicial control, starting from the analysis on the abuse of power in France. It is no coincidence that the more favourable pronunciations in relation to this duty regard sanction proceedings above all for the effect of the decriminalisations, where the dividing line between administrative proceedings and a penal trial proved to be very thin. This duty was then extended to other typical proceedings, such as those related to expropriations, that have a strong bearing on the legal positions. When transparency affirmed itself, citizens’ participation in proceedings began to assume a greater importance. In the evolution of the first forms of access and participation the protection of citizens’ interests would not have been completely realised if the authorities were not obligated to report the line of reasoning followed, the evidence, data and documents on which the content of the decision was founded. Its initial function was to allow knowledge of the reasoning, an indispensable element both with regards to the exercise of judicial action as well as to render effective the participation. This approach was followed in England and the United States, to then spread in the area under the influence of common law. The principle of reasonableness successively amplified the need to give reason, due to the fact that it permitted a particularly penetrating judicial control.

78 79 80

SEC v. Chenery Corp., 318 U.S. 80, 95 (1943); K.M. Stack, ‘The Constitutional Foundations of Chenery’, Yale L.J., 2007, 952-1020. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). Murphy, 2012, 817-880.

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There were continuous corrections by courts on the duty to give reasons. However if it is evident that the motivation constitutes an essential element in permitting the exercise of defence and the judicial review, its evolution highlights that there are also other functions conferred to this specific content of the administrative act. In France the initial approaches stem from the observation of the principles of a trial and from the function assumed by the obligation to motivate judgments. In this experience too, the duty to give reasons emerges as a direct effect of the judicial control on the final act, with the main function of allowing the correct exercise of the right to a defence of the addressees of the administrative action.81 However in the French legal system a clear parallelism between participation and duty to give reasons immediately appears. The rules established the duty to permit participation in all the cases in which predominates the obligation to provide the motives. Participation and motivation are thus joined in a unique context but not perfectly univocal.82 The cases of obligatory participation are far more than those in which the duty to give reasons is in force. There are in fact various typologies of the exercise of public power in which there is not this duty. In France it not constitute a general rule.83 Other theoretical elaborations recognise in the motivation different and additional functions, besides the initial set up.84 German juridical thinking sees it as an indispensable element in an administrative act, above all in order to demonstrate to citizens how correct and efficient administrative action is.85 The idea is contrary to the French tradition. In Germany the duty to give reasons is not founded with the objective of permitting the exercise of a defence but rather it is an attempt to avoid litigations. The existence of a valid motivation, when drawn up correctly, bolsters the defence of public bodies also in an administrative trial. In this way the authority would increase the possibility that courts would confirm the correctness of its action. Motivation was born as an element of guarantee of administrative action rather than as a tool for the defence of the interests of citizens. The theory hypothesised a sort of virtual social control on administrative action86 to which the externalisation of the motives of the choices carried out, should result as being functional. From this initial approach derive some characteristics of the German administrative procedure. The first regards the extension of the duty to give reasons also to acts occurring during the proceedings. The more the administrative action is able to show itself as being coherent and rational in each passage, the more efficacious will be its action on the citizens. 81 82 83 84 85 86

Autin, 2011, 85-99. Supra Cap. IV, par. 2.1. Autin, 2011, 93. The multi-purpose function of the institute of giving reasons of comparative law is pointed out by Scarciglia, 1999, 34. Ivi, 131. Ivi, 45.

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Giving reasons appears indispensable above all in order to reinforce the legitimateness of the adopted measures by the authority via the comparison of its rationality. Viewed in this light the duty to give reasons is not closely linked to the effects induced by transparency and participation. From a different viewpoint the advocates of the dogma of the administrative act founded on the private law theory saw in the duty to give reasons a formal element of the measure.87 The lack of giving reasons constitutes an illegitimacy due to the deficiency of an essential component of the administrative act.88 This approach would subsequently give rise to the formalistic current that characterised the first phase of the Italian and Spanish experience and in all countries that followed this tendency. The citizen addressee of the final measure could obtain an annulment of the measure simply due to a formal flaw. In Spain the idea translated into the duty to give reasons for administrative acts when they damage subjective legal positions, whose shortcomings however could be the subject of validation in order to preserve the effects of the acts. The diachronic evolution seems to have thus affirmed three different approaches. A first model in which the duty to give reason constitutes the natural consequence of the affirmation of the right to freedom of information and participation and it is applied only to measures that damage subjective legal positions. This is the situation in France. A different approach, stemming from the German experience, sees in the duty to give reasons a principle for reinforcing the legitimateness of the authoritative action. There is a third model, prevalent in Italy and Spain, that imposes to give reasons as an indispensable and general element of the administrative act. The aspect connected to the legitimatisation of the exercise of public powers more widely characterises the duty to give reasons with regards to general acts or rulemaking. In these cases the institution is mostly used to illustrate the reasons why an administrator opted for a specific disciplining in relation to the purposes it intends to achieve, rather than indicating the reasons for not accepting the observations of individuals. Motivation thus, for this type of acts, rather than being an element for the defence of the interests of citizens, has the purpose of making clear and transparent the aims that the authority intends to pursue, demonstrate that the negative effects on society will be less than the benefits or that there are no other more effective solutions to achieve the same goals. In general there are no cases where motivation can be omitted and its function as an instrument of legal defence takes second place, due to the fact that judicial review is mostly aimed at monitoring compliance with procedural guarantees and the principles of reasonableness and proportionality.

87 88

The reconstruction is in Giannini, 1977, 256 et seq. Romano Tassone, 1987, 14.

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A different approach exists however, with regard to motivation of general acts. In Italy Law n. 241 of 1990 provides for an express exemption for this type of acts.89 However there are numerous provisions on the functioning of agencies which oblige these bodies to give reasons of general and regulatory acts.90 Further derogations can be found in urban planning documents or in tariff setting measures. For urban plans the duty to give reasons depends on the impact of the new provisions on pre-existing legal positions or legitimate expectations. This is why motivation is required in cases of the reproposal of no longer binding constraints or qualifications of urban areas with different targets than those existing. It is tendentially excluded when administrative action does not undermine legal positions. The same provisions are found in the internal rules of the European Union countries on the organisation of their independent authorities. It is evident that in this case the participation, especially designed to bridge their deficit of the institutional legitimacy, must be coordinated with the duty to provide the reasons. With regards to rulemaking the duty to give reasons is peaceful in the United States and records openings also in Europe, where, above all, Spain shows the tendency to widen the widespread application of the principle of participation and motivation. The duty in these cases tends to explain in general terms the reasonableness of the choices made. These different approaches have exercised a notable influence on the rules about the duty to give reasons within the jurisdictions. However also with regards to the problematics of giving reasons, similar to that which occurred for the participation, the pressures exercised by the European Union and the international law have progressively adapted the internal models and the effect of the traditional theoretical settings has gradually been attenuated.91 The initial divergences thus softened and the substantial aspect of the principle of legality prevailed, which sought a constant balance between the protection of legal positions and the requirements of simplification and speed of administrative action. However there is no doubt that within the main legal experiences substantial differences exist. Suffice it to think that in the urban planning, both the duty to motivate and its content change, depending on the characteristic of plan choices and the incidence on legal positions and legitimate expectations. In particular, the element that still seems to differentiate the approaches within the jurisdictions is the comparative analysis between the content of the investigation phase and the reasons in support of the final measure. The widespread application of proportion-

89 90 91

Art. 3, sub. 2, law. 241/90. Art. 23, law 262/2005, as regards the measures of the Bank of Italy, Consob, IGVAP, Covip. The case law guidelines are the same for the acts adopted by the Electricity and Gas Authority. C. Hen, ‘La motivation des actes des institutions communautaires’, Cahiers dr. eur., 1977, 49-100; S. Civitarese Matteucci, ‘Attività amministrativa e principi dell’ordinamento comunitario’, Giur.it., n. 7, 2012, 16771682; Autin, 2011, 85-99.

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ality and balancing test principally characterises the common law experiences. Instead in countries with a civil law tradition there is a tendency to assess the type of discretionary power.

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Limits to Discretionary Power Logic and Administrative Action

The reasonableness represents the main corollary of administrative action corresponding to its natural limit. At times it is expressed in Constitutions. However in the idea of contemporary constitutionalism an authority should act via the parameters of rationality.1 The exercise of public functions must be impartial, equal, substantial, reasonable and logical. If this idea appears irreproachable on a dogmatic level, in reality it entails a wide range of applicative problems not only linked to the difficulties of individuating at a theoretical level the parameters of rationality, but above all due to the fact that the concept of administrative discretion constitutes its main limit. Rationality is a limit of administrative discretion, yet in turn discretion conditions the assertion of rationality. These principles are the effect of the evolution of judicial review when it delves into the choices carried out by public bodies on the edge of the delicate and imperceptible boundary between legitimacy and merit.2 It is an ambit on which various disputes have arisen about the boundaries between administrative action and judicial control in the constant search for a balance. On the one hand citizens need judicial protection in relation to illogical administrative actions but on the other hand the discretionary power of agencies prevent courts invading the spaces allocated to administrative function. This circumstance produced the effect that, from the initial courts’ decisions, the terms rational, logic and reasonable, were used almost as if they were synonyms. Taking into account that it was not clear to what extent judicial review could stretch, it was extremely complicated to link the legal flaws observed in administrative action to either concept. Sustaining that administrative action should be logical would have meant one thing, but if the idea of reasonableness or rationality had prevailed, this would have produced a different effect. The genesis of this limit to the discrecional power is due to the elaboration of the abuse of power executed by the French

1

2

A.M. Sandulli, ‘Il principio di ragionevolezza nella giurisprudenza costituzionale’, Dir. soc., n. 3, 1975, 561577; A. Bockel, ‘Contribution à l’étude du pouvoir discrétionnaire de l’administration’, AJDA, 1978, 355370; A. Sagrò, ‘L’eguaglianza in transizione’, in AA. VV. (cur.) Il principio di ragionevolezza nella giurisprudenza della Corte costituzionale. Riferimenti comparatistici, Giuffrè, Milano 1994, 199 et seq.; L. Paladin, ‘Ragionevolezza (principio di)’, Enc. Dir., Agg. Vol. I, Giuffrè, Milano 1997, 899 et seq.; C. Hilson, ‘Judicial Review, Policies and the Fettering of Discretion’, PL, 2002, 111-129; A. Celotto, ‘Art. 3, 1° co., Cost.’, in R. Bifulco et al. (cur.), Commentario alla Costituzione, Utet, Torino 2006, 80. Pastori, 1987, 3165.

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3 4

Vincent, 1971, 407-421. On the evolution Cfr. M. Waline, ‘Le pouvoir discrétionnaire de l’administration et sa limitation par le contrôle juridictionnel’, Revue du droit public et de la science politique en France et à l’étranger, 1930, 197 et seq.; F. Dreyfus, ‘Les limitations du pouvoir discrétionnaire par l’application du principe de proportionnalité: à propos de trois juge mentes du Tribunal administratif de l’OIT’, RDP, 1974, 691; Bockel, 1978, 355-370.

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covered the means – ends relationship and become a question of the choice of the approaches that resulted as being the most appropriate for reaching a specific objective. An administrative action could be reasonable but not rational. In the main legal experiences, courts followed two trends. The tradition of common law was greatly affected by the approach offered by the English judiciary in the Wednesbury case and was embroiled in the nets of the judgement of reasonableness, for years. In France, Italy and Spain the criterion of rationality, connected for the most part to the initial approach, prevailed. In the European context Germany showed the most precise and refined theoretical elaborations, above all by virtue of the link made between the reasonableness and proportionality of administrative action.

6.1.1

Wednesbury and Soft Unreasonableness

The Wednesbury case is well-known for the prudent approach with which the problems related to the risks of the incursion of the judicial review within the discretionary power were tackled.5 Lord Greene conferred a clear characterisation to the test of rationality: that is to say that a decision deemed utterly absurd that no authority with common sense would ever adopt it, was to be considered unreasonable. On this occasion the English judiciary focused particular attention on distinguishing the unreasonableness from review of discretionary choices and imposed a parameter that identificated irrationality with absurdity. The judgement of rationality thus became relegated to an extraordinary hypothesis in cases in which administrative action showed itself to be, in whoever’s judgment, totally nonsensical.6 Today this model is still in force in the United Kingdom but the control standards applied to the discretionary exercise of executive power have evolved.7 Over the years legitimate expectation and proportionality, together with the power stemming from human rights, had a bearing on the traditional set up of the Wednesbury test that was subjected 5

6

7

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, 1947. In this case, the local body, in the application of a specific discipline, granted to the claimant company a licence for Sunday shows, but only provided that children under the age of fifteen would not be allowed to participate, not even accompanied by an adult. The claimant company, owner and concessionaire of the Gaumont Cinema Wednesbury, in Staffordshire, appealed against the decision, deeming it unreasonable due to abuse of power. The Court rejected the appeal, taking into consideration the Harman v. Butt (1944) precedent, specifying that its task was only that of ascertaining whether or not a violation of the law in the exercise of a discretional power had been committed or if a divergence from the pre-established objective of the law was found. The grounds for unreasonableness, as formulated in the Wednesbury Case, have clear foundations in Administrative Decisions (Judicial Review) Act 1977 that acknowledges the idea affirmed by the English judiciary. C. Hilson, ‘Judicial Review, Policies and the Fettering of Discretion’, Public Law, 2002, 111-129; J.J. Basten, ‘Jurisdictional Control of Administrative Action: Tears of Frustration?’, Key Issues in Judicial Review, 2014, 35.

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to continual criticism and adaptation from many corners. The expression that most represents the situation that was being established in England belongs to Lord Cooke di Thorndon, in his opinion expressed in the case R v. Secretary of State for the Home Department:8 “there will come a day in which one will realise that the ample and vague recognition of the principle of unreasonableness was a regressive decision for Anglo-Saxon administrative law”, in so much as, with regards to the various degrees of unreasonableness, it was only the extreme hypothesis that would have led to the illegitimacy of an administrative decision, in a judicial review. With the Human Rights Act 1998 and the doctrine of legitimate expectation the debate moved onto the principle of proportionality and onto the possibility to adopt it as a substitution to the test of unreasonableness. It is a trend that is mostly observed in doctrine while a clear stance by the English judiciary has yet to be taken. Courts use the Wednesbury test, reinforcing the intensity of the investigations on the reasoning when it has a bearing on fundamental rights, rather than continuing to dwell on the complicated search for a dividing line between legitimacy review and merit review. The intensity of the judicial control on the content of the measure varies depending on the matter and the effects on the individual legal positions. The case of R v. Department of Education and Employment, ex parte Begbi9 demonstrates this evolutionary process. The parameter of reasonableness becomes flexible and modifiable depending on the importance of the interests at stake. This situation can be observed also in New Zealand.10 In the Wellington City Council v. Woolworths New Zealand Ltd case, the New Zealand Appeal court declared that a decision could be invalid due to unreasonableness whenever “the result of the discretional exercise of executive power is irrational or such that no reasonable group of people could ever reach the same decision.”11 Since 1990 the local judiciary had followed the developments that were unfolding in England and acknowledged the possibility of the differentiated application of the test.12 The intensity of the judicial review was to be adapted to the context in which the exercise of discretionary power takes place, with an intensified control whenever this power had a bearing on fundamental rights.13 A similar approach was established in India.14

8

9 10 11 12 13 14

C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’, The European Journal of International Law, n. 19, 2008, 655 et seq.; M. Taggart, ‘Proportionality and Unreasonableness, Proportionality’, Law Journal of New Zealand, New Zealand Co., 2008, 423-427. Cfr. R. v. Department of Education and Employment; Ex parte Begbie, [2000] 1 WLR 1115. Cfr. M. Taggart, ‘Australian Exceptionalism in Judicial Review’, Federal Law Review, n. 36, 2008, 1 et seq. No 2 [1996] 2 NZLR 537 (CA). In this sense, J.D. Knight, ‘The Standard of Review in Administrative Law’, Law Journal of International Public Law New Zealand, 2008, 117-123. Cfr. Discount Brands Ltd v. North cote Main street Inc, NZLR, n. 3, 2004, 619. M.P. Jain, Principles of Administrative Law, Butterworths Wadhwa, Nagpur 2011, 1267. The necessity to review the parameters of the Wednesbury test was also expressed by the Indian judiciary in Bombay Dyeing & Mfg. Co. Ltd v. Bombay Environmental Action Group, Appeal No. (civil) 1519 of 2006 (Supreme Court of India).

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6.1.2

Limits to Discretionary Power

The Australian Variable

The Wednesbury test of unreasonableness appeared unsatisfactory in the Australian juridical thinking.15 It highlighted the differentiation, albeit subtle, between rationality and unreasonableness.16 While the test of rationality necessitated that the content of the decision was to be founded on rational premises, the needs expressed by logic would have only required that the conclusions were to be in line with these premises, without their initial rationality assuming any significance. In contrast the reasonableness review was employed in a residual sense to verify if an administrative decision was coherent with morally accepted values.17 According to the Australian jurists the standard of rationality appeared more elastic in comparison to the English model and more able to understand elements that would be excluded from the judicial review18 if the tight parameters provided by the criteria of reasonableness were utilised.19 In the case of Channel Nine Pty Ltd v. Australian Broad casting Tribunal the judge French J highlighted how an administrative decision could also be deemed unreasonable due to the fact that it did not take into consideration significant factors or it had given an excessive emphasis to other elements that were instead irrelevant20 or if the proportional relationship between the chosen means and the pre-established end was lacking. Australian law substituted the rationality parameter with that of reasonableness. The criticism of the Wednesbury model was not however unanimous.21 In the recent Li case the test of reasonableness was further amplified.22 Mrs Li frequented a higher education course for professional chefs in Australia. Due to the fact that she was a foreigner, she needed a residence visa for trainee students. She presented a petition in which she requested an evaluation on her competences, starting with her curriculum vitae in order that her competence could be evaluated for a future job. The application forwarded to the Ministry for Immigration and Citizenship, was rejected, on the grounds of a lack of authentic information. Mrs Li appealed against the rejection; in the meantime, having gained further work experience, she asked for a new evaluation of her competences which was also rejected.

15 16 17 18 19 20 21

22

On the topic, Sul tema P. Walker, ‘What’s Wrong with Irrationality’, Public Law, 1995, 556 et seq. Cfr. C. Perelman, ‘The Rational and the Reasonable’, http://digitalcommons.brockport.edu/phil_ex/ vol10/iss1/5, 1979, 5 et seq. Ibidem. D.G.T. Williams, ‘Justiciability and Discretionary Power’, in M. Taggart (cur.), Judicial Review of Administrative Action in the 1980s, Auckland, New York 1986, 122. Taggart, 2008, 13. Othman v. Minister for Immigration and Ethnic Affairs, 1991, 24 ALD 707, 711. Ibidem. For example Walker sustains that rationality is not acceptable as a parameter of legitimacy. Cfr. Walker, 1995, 556 et seq.; A.F. Geoff, ‘Rationality and Judicial Review of Administrative Action’, Melbourne University Law Review, n. 24, 2000, 543 et seq. Cfr. Minister for Immigration and Citizenship v. Xiujuan Li & Anor, [2013] HCA 18.

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The official of the migration office, having noted mistakes in the evaluation during the appeal, reported this circumstance to the competent Tribunal. In the court proceedings a request was made to suspend the judgement until the service of certification had not reconsidered its own decision. The Tribunal refused to grant an adjournment and the case reached the Supreme Court. In his argumentations the federal judge considered the decision assumed by the Tribunal to be unreasonable, citing the Wednesbury case, despite the fact that it was evident that in the challenged judgement it was possible to discern a case of manifested irrationality. The Supreme Court deemed that the discretional exercise of every power must be circumscribed to the ‘rules of reason’: a decision would be invalid by unreasonableness whenever an evident and comprehensible justification was lacking. According to the Australian Supreme Judiciary the Tribunal had impeded the possibility to effectuate a new evaluation of the competencies of Mrs Li without giving a valid motive and without adequately reconsidering all the interests at stake. Thus it had reached a decision that confirmed the existence of a rejection measure, intended as a means that was disproportionate in relation to the updating request. The adopted measure resulted excessive in relation to its objective and was in contrast with proportionality that prohibits the restricting of citizens’ freedom beyond that which is necessary in the realisation of the objective for which the relative power is attributed. The test of proportionality, in the light of the Li case, did not substitute that of unreasonableness, but rather developed and integrated it. Australia arrived at the test of proportionality via a shift from the principle of reasonableness affirmed by the English judiciary to that of rationality. The Australian judiciary, following the reasoning that had been followed by the Conseil d’État in France, linked discretionary activity to the rational use of the power. It deemed any administrative action to be in contrast with the principle of legality whenever the chosen means could not be rationally utilised to realise the objective indicated in the Statute.23 In this experience the connection between rationality and proportionality, as well as the value of the principle in constituting a reference parameter that permits evaluating the legitimacy of administrative action without damaging the intangible sphere of discretionary power, immediately emerges. The principle of proportionality implies that every measure having a bearing on individual legal positions must be appropriate and adequate to the objective to be reached, and necessary. That is to say that one must resort to it only when no other equally efficacious measure, that produces a lesser negative impact on the rights and interests of individuals, is available. The two articulations, appropriateness and necessity, in other words are orientated to safeguarding the freedom of citizens and all the other secondary public interests 23

“Paull v. Munday”, 1976, FCA 443, “Minister for Foreign Affairs and Trade v. Magno”, 1992, FCA 566; see also “Minister for Urban Affairs and Planning v. Rosemount Estates”, 1996, HCA 348; G. Airo-Farulla, ‘Rationality and Judicial Review of Administrative Action’, Melbourne University Law Review, Vol. 24, 2000, 543-575.

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involved, that can be limited only when it proves to be indispensable for the protection of public interest. The criterion of proportionality constitutes in this way an integral part of a broader test of rationality that also includes the relationship between means and ends.24 Over the years Australia was capable of maintaining a univocal course of action. The internal law is in accordance with the essence of the principle and orientates authority to adopt measures that are necessary and proportionate to the realisation of public interest, prefixed by law above all when they produce unfavourable effects on the addressees. The investigation undertaken in judicial review always regards the legitimacy of administrative action and is conducted via the observation of the appropriateness and necessity of the adopted measures:25 this circumstance allows the Australian doctrine to verify that no interference of the judiciary in administrative decisions occurs.26

6.2

The Proportionality

In the European context the origin of the principle within the German legal system dates back to the Prussian Polizeirecht. It means that public powers cannot adopt tools and mechanisms that restrict individual freedom except in cases where it is strictly necessary for the actuation of public interest.27 The Kreuzbergs case sanctions its definitive affirmation,28 in the basic acceptance that prohibits the excesses of administrative decisions. This is recognised in the German Constitution in an implicit manner.29 In Germany the principle overcomes the internal concept of the abuse of power and assumes an autonomous connotation. Administrators thus were obliged to search for a continual balance between the interests implicated in proceedings. This approach led to genesis of proportionality in a strict sense which finds its initial applications in the protection of fundamental rights.30 The measure must not have a 24 25 26 27 28

29 30

Thus J.L. McDonald, ‘Rethinking Unreasonableness Review’, Public Law, n. 2, 2014, 100-117. M. Allars, ‘Chevron in Australia: A Duplicitous Rejection?’, Admin. Law. Rev., n. 54, 2002, 569 et seq. Thus H. Spiegelman, ‘Bruce v. Cole and Ors’ , HCA, 38, 1995. Thus J.J. Spigelman, ‘The Integrity Branch of Government in Australia’, Australian Law Journal, n. 78, 2004, 724 et seq. R. von Krauss, Der Grundsatz der Verhältnismäßigkeitin seiner Bedeutung fu ̈r die Notwendigkeit des Mittels im Verwaltungsrecht, Hamburg, 1955, 94. On the topic, see D.U. Galetta, Principio di proporzionalità e sindacato giurisdizionale nel diritto amministrativo, Giuffrè, Milano 1998, 11 et seq.; A. Barak, Proportionality. Constitutional Rights and Their Limitations, Cambridge University Press, Cambridge 2012, 175-210. Art. 2, sub. 1, and Art. 14. On the relationship between the principle of proportionality and fundamental rights according to Grundgesetz, refer to G. Haverkate, Rechtsfragen des Leistungsstaat, Tübingen, Mohr 1983, 12 et seq.; F.E. Schnapp, ‘Die Verhältnismä ßigkeit des Grundrechtseingriffs’, Jus, 1983, 850 et seq.; R. Dechsling, Das Verhältnismä ßigkeitsgebot-EineBestandaufnahme der Literatur zur Verhältnismä ßigkeit staatlichen Handels,

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bearing on the interested party such as to be deemed intolerable. In the following years a model of proportionality developed in the most broadest sense. The basic element remains the balance between the measure and the sacrifice inflicted on the citizen. This balance becomes an element of proportionality together with the appropriateness and necessity.31 The appropriateness necessitates that the means chosen by the authority must be sufficient for the attainment of the specific objective32 even only in an abstract manner. Furthermore the choice of a means to obtain an objective must be founded on the inexistence of no other equally efficacious means that could have a lesser negative bearing on individual rights or interests. Thus German law and doctrine individuated three parameters for the judgement of proportionality.33 In a matter of a few years the principle was applied in the EU system34 and influenced the majority of the countries within the European Union.35 The European Court of Justice began to refer to proportionality to verify if the tools utilised were effectively adequate and appropriate for the objective. Thus the function of monitoring whether restrictions and limitations that have a bearing on citizens are effectively necessary and indispensable in the pursuit of public objectives,36 was conferred to the EU institutions. The principle however was flexible. At times a partial review can be noted, founded on the respect and the verification of only one of the three components that characterise it.37 In other cases one can note a more penetrating control38 aimed at guaranteeing compliance with all three of the constitutive elements.

31

32 33 34

35

36

37 38

Vahlen, München 1989, 44 et seq.; K. Stern, Das Staats recht der Bundesrepublik Deutschland – Allgemeine Lehren der Grundrechte, III vol., Beck, München 1994, 764 et seq.; W. Leisner, DerAbwägungsstaat – Verhältnismäßigkeit als Gerechtigkeit?, Duncker & Humblot, Berlin 1997, 152 et seq. D.U. Galetta & D. Kroger, ‘Giustiziabilità del principio di sussidiarietà nell’ordinamento costituzionale tedesco e concetto di “necessarietà” ai sensi del principio di proporzionalità tedesco’, Riv. it. dir. pubbl. com., n. 2, 1998, 905 et seq. BVerfG, 16 March 1971, in BVerfGE 30, 292 et seq. P. Lerche, Übermaß und Verfassungsrecht. Zur Bindung des Gesetzgebers an die Grundsätze der Verhältnismäßigkeit und Erforderlichkeit, Köln e.a., Heymann 1961, 129 et seq. On the question, J. McBride, ‘Proportionality and the European Convention on Human Rights’, in E. Ellis (cur.), The Principle of Proportionality in the Laws of Europe, Hart, Oxford 1999; G. Scaccia, ‘Il principio di proporzionalità’, in S. Mangiameli (cur.), Ordinamento Europeo. L’esercizio delle competenze, Vol. II, Giuffrè, Milano 2006, 227 et seq.; D.U. Galletta, ‘Le principe de proportionalité’, in J-B. Auby & J. Dutheil de la Rochère (cur.), Droit Administratif Européen, Bruylant, Bruxelles 2007, 357-376. See also, Court of Justice, 16 July 2015, Case 255/14, Robert Michal Chmielewski v. Nemzeti Adó-és Vámhivatal Dél-alföldi Regionális Vám-és Pénzügyőri Főigazgatósága. Ex multis A. Stone Sweet & J. Matthews, ‘Proportionality Balancing and Global Constitutionalism’, Columbia Journal of Transnational Law, n. 47, 2008, 73-165; M. Cohen-Eliya & I. Porat, Proportionality and Constitutional Culture, Cambridge University Press, Cambridge 2013, cap. 1. Cfr. Court of Justice, 16 July 1956, Case 8/55, Fédération Charbonnière de Belgique v. l’Alta Autorità della Comunità europea del Carbone e dell’Acciaio, in Racc., 1955-56, 199 et seq. On the topic Fromont, 2006, 752-911 and T. Von Danwitz, Europäische Verwaltunsgrecht, Springer, Berlin-Heidelberg 2008, 571 et seq. Court of Justice, 11 November 1969, Case 29/69, Erich Stauder v. Stadt Ulm – Sozialamt; 9 December 1981, Case 193/80, Commissione delle Comunità europee v. Repubblica italiana. Cfr. M. Zinzi, ‘Principio di proporzionalità e criteri per il calcolo delle sanzioni per violazione della concorrenza’, Diritto Pubblico Comparato Europeo, n. 4, 2007, 1887-1900.

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After a few years proportionality was applied in almost all of the sectors of European law in order to limit restrictive measures.39 The principle began to affirm itself also in relation to legislative Acts and imposed itself as a new constitutional restriction to Parliaments. Proportionality was applied to normative or administrative acts adopted by all the European institutions,40 in: a) common agricultural policies41, b) the enactment and execution phase by the member States42, c) the financial aid sector43, d) measures aimed at favouring cartels and associations among national companies and abuses stemming from a dominant position44, e) in preliminary indictment cases45, f) in reference to the free movement of goods46 and g) with regards to the question of the irregular repatriation of citizens of a member State of the European Union.47 Subsequently the proportionality represented the main reference for balancing freedom with the restrictions of its exercise, as outlined by Article 53 of the Charter of Fundamental Rights of the European Union.48 Hence, on having been elevated to the status of EU principle and implicated in fundamental rights, the repercussions of the principle on national systems were inevitable.

39

40

41

42

43 44 45 46 47 48

J. Snell, ‘True Proportionality and Free Movement of Goods and Services’, European Business Law Review, n. 11, 2000, 50-57; H. van Harten, ‘Proportionality in Decentralized Action; the Dutch Court Experience in Free Movement of Services and Freedom of Establishment Cases’, Legal Issues of Economic Integration, n. 35, 2008, 217-230, in particular 220. Court of Justice, 13 November 1990, Case 331/88, The Queen c. The Minister of Agriculture, Fisheries and Food e The Secretary of State for Health, ex parte: Fedesa e altri., Racc., 1990, I-4023 et seq., point 13; 5 May 1998, Case 180/96, Regno Unito c. Commissione, Racc., 1998, I-2265 et seq., point 96. Cfr. Court of Justice, 7 September 2006, Case 310/04, Regno di Spagna v. Consiglio dell’Unione europea, Racc., 2006, I-7285 et seq., point 97; 4 June 2009, Case 142/05, Åklagaren v. Percy Mickelsson e JoakimRoos, http://eur-lex.europa.eu. Court of Justice, 5 March 2009, Case 88/07, Commissione c. Regno di Spagna; 28 aprile 2009, Case 518/06, Commissione c. Repubblica italiana; 12 January 2010, Case 229/08, Colin Wolf v. Stadt Frankfurt am Main, tutte inhttp://eur-lex.europa.eu. Court of Justice, 8 June 1982, Case 258/78, L.C. Nungesser KG e Kurt Eisele v. Commissione delle Comunità europee, in Racc., 1982, 2015 et seq., point 77; 13 May 2003, Case 463/00, Commissione v. Spagna. Court of Justice, 16 dicembre 2008, Case 213/07, Michaniki AE v. Ethniko Symvoulio Radio tileorasis e Ypourgos Epikrateias inhttp://eur-lex.europa.eu. Court of Justice, 23 December 2009, Case 45/08, Spector Photo Group NV e Chris Van Raemdonck v. Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA). Court of Justice, 20 February 1979, Case 20/78, Rewe-Zentral AG v. BundesmonopolverwaltungfürBranntwein. Court of Justice, 28 April 2011, Case 61/11 PPU, HassenElDridi, alias Soufi Karim. On the question, D.U. Galetta, ‘Il principio di proporzionalità nella Convenzione Europea dei diritto dell’uomo, fra principio di necessarietà e dottrina del margine di apprezzamento statale. Riflessioni generali su contenuti e rilevanza effettiva del principio’, Riv. it. dir. pubbl. com., n. 3-4, 1999, 743 et seq.; G.F. Ferrari, ‘I diritti tra costituzionalismi statali e discipline transnazionali’, in Idem (cur.), I diritti fondamentali dopo la Carta di Nizza. Il costituzionalismo dei diritti, Giuffrè, Milano 2001, 1-122; U. Villani, ‘I principi di sussidiarietà e di proporzionalità nel diritto dell’Unione europea’, in L.F. Pace (cur.), Nuove tendenze del diritto dell’Unione europea dopo il Trattato di Lisbona, Giuffrè, Milano 2012, 79 et seq.

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Administrative Action and Procedures in Comparative Law Today one can note a diffused application of proportionality49 above all in matters disciplined by the European Union Acts,50 for example: in Belgium,51 with reference to penalty proceedings, as well as in Denmark,52 Greece,53 Spain,54 Portugal,55 Ireland,56 Luxembourg,57 the Netherlands58 and Italy. Its diffusion extended to Austria,59 Switzerland60 and in many other jurisdictions of Western and Central-Eastern Europe.61 It is applied in Canada, Australia, New Zealand, South Africa, in Latin America and in many other constitutional experiences, including the United States in the form of the analysis of costsbenefits.

6.2.1

Cogency and Proportional Action in Italy and France

In the French experience the proportionality represents the natural evolution of the development of a more penetrating judicial control via the contrôle de nécessité de l’acte or contrôle maximum.62 The theoretical approach is in essence the ‘bilancoû-avantages’ 49 50

51

52 53 54

55 56 57 58 59 60 61 62

Fromont, 2006, 752-911; I. Harbo, ‘The Function of the Proportionality Principle in EU Law’, European Law Journal, Vol. 16, n. 2, 2010, 158-185. Recently Cfr. T.-I. Harbo, The Function of Proportionality Analysis in European Law, Brill Nijhoff, Boston 2015, 186 et seq. With regards to Norway, the Supreme Court did not manifest the need of a test of proportionality that went beyond the principle of reasonableness of administrative action. In the Belgian experience too, just like that of France and New Zealand, the proportionality is acknowledged as a general principle by Council of State, that, with particular vigor, decreed its application in disciplinary sanctions (Cfr. sentenze n. 17 101, 26 June 1975 Depelchin; n. 19 244, 14 November 1978, Bossuyt; n. 19271, 21 January 1971, Asnong; n. 19 616, 14 May 1979, reported by J. Schwarze, Droit administrative européen, Bruylant, Bruxelles 2009, 742, note n. 103. A. Delpérée, Le principe de proportionnalité en droit public, Rapport belges au Xième Congrès international de droit comparé, Budapest 1978, 5 et seq. Cfr. M.J.K. Skadhauge, Interaction between Community Law and National Law, FIDE, Rapport 12eme Congrès, Paris, 1986, 75 e 89 et seq. P. Dagtoglou, Allegemeines Verwaltungsrecht, Vol. I, Atene, 1977, 107 et seq.; P. Dagtoglou, ‘Verfassung und Verwaltung’, in K.D. Grothmann, Südosteuropa-Handbuch, Vol. III, Grèce, Göttingen 1980, 14-44. In the Spanish experience, alongside the principle of racionabilidad, that of proporcionalidad also affirmed itself. In reality, the principle is rarely mentioned by case law and Spanish jurists. On the topic, D. Sarmiento, Ramírez-Escudero, El control de proporcionalidad de la actividad administrativa, Tirant lo Blanch, Valencia 2004; J.J.P. Coviello, ‘El principio de proporcionalidad en el procedimiento administrativo’, Derecho PUCP, n. 67, 2011, 139-153. Cfr. now Arts. 3-29 law n. 40 del 1 October 2015. On the topic D. Freitas Do Amarl, Curso direito Administrativo, Almedina, Lisbonne 2015. J. O’Reilly, ‘The Interaction between Community Law and National Law’, FIDE, Rapport 12eme Congrès, Paris, 1986, 167 et seq. M.G. Wivenes, ‘Interaction entre droit communautaire et droit national’, FIDE, Rapport 12eme Congrès, Paris 1986, 215 et seq. A.M. Donner, Nederlands Bestuursrecht, Algemeen Deel, Den Bosch, Alphen a/d Rijn 1974, 97. M. Fromont, ‘Le principe de proportionnalité’, AJDA, 1995, n. special, 158 et seq. P. Muller, ‘Le principe de la proportionnalité’, Zeitschrift für Schweizerischers Recht, 1978, 210 et seq. T. Hickman, ‘Proportionality: Comparative Law Lessons’, J.R., 2007, 31-55. Cfr. M. Guibal, ‘De la proportionnalité’, AJDA, n. 5, 1978, 477-479; Fromont, 1995, 156; V. Goesel – Le Bihan, ‘Réflexion iconoclaste sur le contrôle de proportionnalité exercé par le Conseil constitutionnel’, Rev.

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that harks back to some opinions expressed by the public works section of the Conseil d’État before they transformed into jurisdictional sections.63 With regards to the erreur manifeste d’appréciation, that involves normally questions of fact, law and the derailment of power, the control of proportionality characterises itself in the evaluations of coûtavantage.64 In the Benjamin case, dated 19 May 1933, widely considered as being among the first questions decided with the application of proportionality, the Conseil d’État annulled the ban on meetings established by the Nevers review, because it deemed it to be disproportionate in relation to the objective to maintain public order and safety.65 In the following years the French judiciary utilised the criterion of proportionality in various sectors of administrative law;66 its expansion and the concrete applicative modalities were influenced by this principle at a EU level. In the Ville nouvelle Lille Est case, 1971, the Conseil d’État applied the proportionality in the expropriation for public utility, utilising the comparative evaluation between the losses incurred by the private property, the financial cost and the inconveniences of social order that could be derived from it.67 From this point onwards a new phase began relating to the control of discretional choices in other sectors,68 such as: the protection measures of a site,69 the dismissal of workers belonging to a protected category,70 and exemptions in urban planning.71 In essence, the theory of the ‘bilancoût-avantages’ formed the bases of the plein contrôle de proportionnalité

63 64

65 66

67

68 69 70 71

fr. dr. const., 1997, 227-267; Idem, 2007, 269-295; R. Bousta, ‘Contrôle constitutionnel de proportionnalité. La spécificitéfrançaise à l’épreuve des évolutions récentes’, Rev. fr. dr. const., n. 4, 2011, 913-930. Cfr. J.P. Costa, ‘Le principe de proportionnalité dans la jurisprudence du Conseil d’État’, AJDA, 1988, 434. Braibant, 1974, 297 et seq.; Guibal, 1978, 477 et seq.; Costa, 1988, 435 et seq.; Chapus, 2001, 1071-1085; J. Lemasurier, ‘Bilan-coût-avantages et nécessité publique’, Rev. adm., n. 191, 1979, 502; G. Kalflèche, ‘Le contrôle de proportionnalité exercé par les juridictions administratives: les figures du contrôle de proportionnalité en droit français’, Les Petites affiches, n. 46, 2009, 46-53; V. Goesel-Le Bihan, ‘Le contrôle de proportionnalité exercé par le Conseil constitutionnel, technique de protection des libertés publiques?’, Jus Politicum, n. 7, 2012, 5 et seq. Conseil d’État, 19 May 1933, Benjamin, Rec. Lebon, 541. On the point Cfr. M. Long et al., Les grands arrêts de la jurisprudence administrative, Dalloz, Paris 2001, 300-307. It is applied to the freedom of movement (Conseil d’État, 8 December 1972, Ville de Dieppe, Rec. Lebon, 794), by expression (Conseil d’État, 24 January 1975, Ministre de l’information c/Stè Rome-Paris Film, Rec. Lebon, 57), of industries and commerce (Conseil d’État, 13 March 1968, Ministre de l’Intèrieur c/Epx Leroy, Rec. Lebon, 179), to the right to strike (Conseil d’État, 7 July 1950, Dehaene, Rec. Lebon, 426), to financial questions (Conseil d’État, 21 November 1958, Sindacato nazionale dei trasporti aerei, Rec. Lebon, 673; Conseil d’État, 16 November 1962, Sindacato intercomunale di elettricità della Niévre e altri, Rec. Lebon, 612). Conseil d’État, 28 mai 1971, Ville nouvelle Lille Est, Rev. dr. pubbl., 1974, 559 et seq. Sul punto Cfr. M. Long et al. 2001 615-623. G. Xynopoulos, Le contrôle de proportionnalité dans le contentieux de la constitutionnalité et de la légalité, L.G.D.J., Paris 1995, 81 et seq. Cfr. A. Holleaux, La jurisprudence du bilan, Rev. adm., 1980, 593. Conseil d’État, 8 July 1977, M.me Riè, Rec. Lebon, 1978, 317. Conseil d’État, 5 May 1976, Safer d’Auvergne c. Bernette, Rec. Lebon, 1977, 232. Conseil d’État 18 July 1973, Ville de Limoges, Rev. dr. pubbl., 1974, 559 et seq.

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that, under the influence of the EU elaboration, orientated French administrative courts towards a judicial review of proportionality inspired by EU criteria. The idea stemming from courts led authorities to effectuate a balance of the interests at stake, with a judicial control that went well beyond the parameters of erreur manifeste d’appréciation. However the judgments were frequently marked by ‘deference’ and one can rarely observe evaluation parameters of administrative action that extend beyond the cases in which the costs-benefits equilibrium is totally negative. Jurisprudence did not in fact individuate specific criteria on which to found the illegitimacy of the administrative act nor can one note an in-depth doctrinal elaboration.72 In the Italian system the idea of the rationality of administrative action was connected to the principles of proportionality, non-contradiction and coherence to the objective. In a similar manner to the French experience the evolution was conditioned by the approach to the abuse of power.73 The Italian judiciary inserted the contradiction and the misrepresentation of facts within the parameters of irrationality as typical elements of a uncorrect exercise of the public function. An administrative act is clearly contrary to the rationality if it is founded on a distorted reality. Furthermore a provision that contradicts other already adopted provisions is irrational if from the motivation it is not possible to discern the reasons of the choice that stems from an opposing position. Likewise an act that contains a disposition that is in contrast to the motivation is equally irrational. For years thus the rationality of administrative action constituted the principle onto which various hypotheses of the abuse of power were attached. The proportionality affirmed itself as a variant of the idea of the reasonableness of administrative action and successively acquired a certain form of autonomous configuration starting from the mid-nineties.74 Normally it was applied both in internal matters as well as to those of a EU importance. This occurred sometimes as a reinforcement of the guarantees of participation, in others it related to the definition times of proceedings.75 In other cases it touched the activity of independent authorities in the 72

73

74 75

Cfr. J.M. Woehrling, ‘Le contrôle juridictionnel du pouvoir discrétionnaire en France’, in V. Parisio (cur.), Potere discrezionale e controllo giudiziario, Giuffrè, Milano 1998, 73; J.M. Maillot, La théorie administrative des principes généraux du droit. Continuité et modernité, Dalloz, Paris 2003, 303-307. Cogliani, 2008, 31 et seq. On the difference between reasonableness and proportionality see G. Lombardo, ‘Il principio di ragionevolezza nella giurisprudenza amministrativa’, Riv. trim. dir. pubbl., 1997, 942; A. Sandulli, La proporzionalità nell’azione amministrativa, Cedam, Padova 1998, 285 et seq.; Galetta, 1998, 166 et seq.; R. Ferrara, ‘Procedimento amministrativo, semplificazione e realizzazione del risultato: dalla «libertà dall’amministrazione» alla libertà dell’amministrazione?’, in Sandulli (cur.), 2000, 120; Celotto, 2006, 80 et seq.; V. Parisio, ‘Principio di proporzionalità e giudice amministrativo italiano’, Nuove autonomie, n. 4-5, 2006, 717 et seq. D.U. Galetta, ‘Il principio di proporzionalità’, in Sandulli (cur.), 2010, 110 et seq. F. Saitta, ‘Interrogativi sul c.d. divieto di aggravamento: il difficile obiettivo di un’azione amministrativa «economica» tra libertà e ragionevole proporzionalità dell’istruttoria’, Diritto e società, n. 4, 2001, 491-547; S. Cogliani (cur.), Il principio di proporzionalità in Italia ed in Europa: la tutela dinanzi al giudice amministrativo, Cedam, Padova 2008, 31 et seq.

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regulation of public utility services, controls of an environmental – landscape type, waste disposal,76 public services concessions, the procedures for the adoption of disciplinary sanctions,77 urban traffic restrictive provisions,78 urbanistic planning79 and the control of unauthorised urbanistic activity, the requisites for admission to call for tenders80 and second degree proceedings.81 However in many judgments, the search for the three parameters, as individuated by the German and European judiciary, proves to be difficult to find. In contrast the outlines of the principle appear excessively vague and seem to grant a certain flexibility to administrative action, in the quest for the smallest sacrifice possible82 but however always in correspondence to rationality and legality.83 Frequently proportionality was utilised to enhance the importance of a correct organisation of the procedural phases. For example, participation and the necessity of the thoroughness of the investigation, were reinforced. However it does not seem by any means that in Italy the proportionality confers an ulterior guiding criterion to administrative action. It has the function of consolidating the investigation in proceedings with the aim of giving the authority the possibility to achieve a balance between public and private interests that is as equal and fair as possible.

6.2.2

The Different Implementation in the United Kingdom

In the Anglo-Saxon experience the proportionality was conditioned by the Wednesbury test.84 This principle would have permitted a much more penetrating judicial control in relation to irrationality.85 Hence English juridical thinking had to facing the dilemma of

76 77 78 79 80

81

82 83 84 85

Consiglio di Stato, Sez. V, 14 April 2006 n. 2087, on the relationship between the provisions related to authorisations in the disposal of waste and the principle of proportionality, www.giustizia-amministrativa.it. Consiglio di Stato, sez. IV, 22 March 2005, n. 1195 that links the need of the analysis of proportionality in the moment in which an administrator decides to apply the maximum sanction possible. T.A.R. Veneto, Venezia, sez. III, 10 March 2005 n. 850 that applies the principle of proportionality for a correct balance between environmental protection and limits on the use of motor vehicles. Consiglio di Stato, sez. V, 21 June 2007, n. 3431, that recalls the “canon of strict proportionality” to interpret a disposition in a planning act when it damages the property. The principle was used to prevent contracting authorities from including a call for tenders admission and participation clauses that required unjustified and exorbitant technical-organizational and financial requirements with respect to the type and object of the announced contract. Cfr. T.A.R. Liguria, Genova, 27 May 2009, n. 1238. In some cases, the needs linked to the duty to restore legality, in pending proceedings of revocation and annulment, are to be compared to the principle of proportionality. Cfr. Cons. Stato, sez. V, 19 March 2009, n. 1615. See for example, Consiglio di Stato, sez. VI, 10 March 2009, n. 1420. Consiglio di Stato, sezione V, 21 January 2015, n. 284. L. Hoffmann, ‘The Influence of the European Principle of Proportionality upon UK Law’, in Ellis (cur.), 1999, 107 et seq.; Craig, 2012, 641-675; Barak, 2012, 345-346. T. Poole, ‘Proportionality in Perspective’, LSE Law, Society and Economy Working Papers, n. 16, 2010, 171214, also inwww.lse.ac.uk/collections/law/wps/WPS2010-16_Poole.pdf.

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Administrative Action and Procedures in Comparative Law the compatibility of its internal tradition with the data stemming from the EU system.86 Some (Lord Steyn) saw nothing more than an overlapping between unreasonableness and proportionality, with the effect that the majority of cases being decided in the same way applying one or the other principle.87 Others highlighted that the need for the autonomy of reasonableness was reduced following the Human Rights Act.88 In reality the two criteria of appropriateness and necessity constituted the same parameters to be utilised in the analysis of reasonableness. The third element that characterises the idea of proportionality in a strict sense shifted the analysis onto the costs-benefits relationship and onto the evaluation of the suitability of the chosen means for the attainment of the objectives. Such an element leads to a careful ponderation of the interests involved.89 In 1987 Millett J defined as being dangerous the proportionality in the Allied Dunbar Ltd v. Frank Weisenger case. The same fear arose in the R. v. Secretary of State for the Home Department ex parte Brind in 1991. The Home Secretary had issued directives in the application of the Broadcasting Act of 1981, with which he requested the BBC to abstain from broadcasting interviews with people who represented terrorist organisations. The prohibition concerned live communications, that would have been dubbed, preventing the broadcasting of the thoughts expressed by the interviewees. The measure was challenged with argumentations that among other things denounced the disproportionality between the pursued objective and the means utilised.90 The House of Lords refused to utilise the proportionality that would have permitted the English judiciary to review the decision undertaken by the authority, a condition that would not have been admissible in British constitutionalism. Lord Lowry and Lord Roskill sustained that there would have been no space to allow the amplification of the sphere of rationality review other than the Wednesbury test via the inclusion of proportionality. After Brind there were various occasions in which courtsrefused to take into consideration proportionality as an ulterior criterion for judicial control. In the International Stock Exchange case Popplewell J stated that proportionality did not represent a free standing principle within internal law.91 This was also the case in Hargreaves in 1997.92

86 87 88 89

90 91 92

Hoffman, 1999, 107-115. R v. Secretary of State for Home Department ex parte Daly (2001) UKHL 2623. L. Irvine, ‘The Development of Human Rights in Britain under an Incorporated Convention on Human Rights’, Public Law, 1998, 221-236. T. Hickman, ‘Proportionality: Comparative Law Lessons’, J.R., 2007, 31-55; J. Rivers, ‘Proportionality and Variable Intensity of Review’, Cambridge Law Journal, Vol. 65, n. 1, 2006, 174-207; V. Perju, ‘Proportionality and Freedom – An Essay on Method in Constitutional Law’, Journal of Global Constitutionalism, n. 1.2, 2012, 334-367. Craig, 2012, 646-651. R v. International Stock Exchange ex parte Else (1992) BCC 11. R v. Secretary of State for the Home Department ex p Hargreaves (1997) 1 All ER 397.

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This situation began to change only at the end of the nineties due to the effect of the Human Rights Act in 1998 and the continual pressure exercised by European Union.93 The year 2001 marked the acceptance of proportionality by the United Kingdom, both in R v. Secretary of State for the Home DepartmentEx parte Daly, as well as in R v. Secretary of State for the Environment ex parte Alconbury.94 In both cases the idea of proportionality assumed however a connotation strictly limited to the application of the EU right and to cases regulated by the Human Right Act.95 The R v. Governors of Denbigh High School di ex parte Begum case represented an important evolutionary step.96 The Appeal court attempted to affirm a procedural aspect of proportionality. The school frequented by an Islamic pupil had prohibited her from wearing the gown imposed by her religion, during school hours. The appeal judge sustained that in the school’s decision it was not possible to distinguish a disproportion between the means and the ends, but rather the violation of the proceedings, for not having taken into consideration substantial aspects, such as religious freedom and the possibility to adopt less invasive solutions in relation to the identity of the pupil. The ruling was widely criticised by English juridical thinking above all because it seemed to require procedural guarantees that were typical only in a trial.97 The House of Lords annulled the judgment of the Appeal court. In the opinion expressed by Lord Bingham in the challenged ruling the scope of proportionality had been misunderstood and that it could not, under no terms, regard the quality of the adopted proceedings.98 Lord Bingham excluded that the principle of proportionality could find a full application within English law above all as a procedural model. In reality different approaches can be observed. In R. v. Secretary of State for the Home Department ex parte Nadarajah the English judiciary deemed an engendered legitimate expectation to be negotiable as long as the chosen measure was proportionate in relation to public interest.99 In 2008 the House of Lords sustained, in Somerville & Ors v. Scottish Ministers, that proportionality could constitute a special criterion of judicial review only in the cases that regarded the violation of the ECHR.100 It is not a coincidence that in

93

T.R.S. Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’, The Cambridge Law Journal, n. 65, 2006, 671-695; I. Loveland, Constitutional Law. Administrative Law and Human Rights, Oxford University Press, Oxford 2009. 94 R v. Secretary of State for the Environment ex parte Alconbury (2001)2 WLR 1389. 95 Thus also in R v. Secretary of State for Defence ex parte Association of British Civilian Internees: Far East Region (2003). 96 R v. Governors of Denbigh High School ex parte Begum (2007) 1 A.C. 100. 97 T. Poole, ‘Of Headscarfs and Heresies: The Denbigh High School Case and Public Authority Decision Making under the Human Rights Act’, Public Law, 2005, 685-695. 98 R v. Governors of Denbigh High School ex parte Begum (2007) 1 A.C. 100. 99 R v. Secretary of State for the Home Department ex parte Nadarajah (2005) EWCA Civ 1363. Cfr. J.N.E. Varuhas, ‘The Reformation of English Administrative Law’, Cambridge Law Journal, n. 2, 2013, 369 et seq. 100 Somerville & Ors v. Scottish Ministers (2008) UKHL 44.

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English manuals the criteria of rationality and proportionality are analysed in the parts related to the acknowledgement of human rights.101 Proportionality found thus its application in the United Kingdom in an different form102 with a strong conception that is observed only in cases in which subjective legal positions, protected at an international level, are involved or in areas of competence of the European Union.103 In all other cases its application within internal law is still uncertain and strictly connected to the Wednesbury test.104

6.2.3

The American Exception

The context in which the idea of the rationality in administrative action affirmed itself in the United States is different.105 In this experience a clear dividing line between logic and proportionality was marked.106 These problems represent fundamental aspects of American constitutionalism and in a compared context can be dealt with only via general trends. In America the proportionality is applied mostly in relation to criminal law, with a particular focus on the entity of the imposed punishments via the judgments. It has never been fully established as a parameter for assessing the legitimacy of administrative measures. Instead the rationality followed a different path. Its evolution is strictly linked to the interest representation model that characterises the American experience and to the relative effects on the relationship between executive and judicial function.107 First and foremost the deliberative concept of democracy requires that administrative action is conducted in a

101 Craig, 2012, 583-675; Cane, 2011, 192-195; Beatson et al., 2011, 343-390. On the topic, recently B. Schlink, ‘Proportionality in Constitutional Law: Why Everywhere but Here’, Duke Journal of Comparative and International Law, Vol. 22, 2012, 291; G. Huscroft et al., Proportionality and the Rule of Law: Rights, Justification, Reasoning, Cambridge University Press, Cambridge 2014; Clayton, 2004, 33. 102 J. Goodwin, ‘The Last Defence of Wednesbury’, Public Law, n. 3, 2012, 445 et seq. that sides with those who defend the current dual regime, sustaining that the extension of the proportionality test to all decisions weakens the principle of the separation of powers. On the topic, P. Chirulli, Attività amministrativa e sindacato giurisdizionale in Gran Bretagna. Dal locus standi al justiciability, Giappichelli, Torino 1996, 58-61. 103 Rivers, 2006, 174. 104 E. Breen, ‘Le pouvoir discrétionnaire en droit administratif anglais’, RFDA, 2003, 1159-1174; M. Taggart, ‘Proportionality, Deference, Wednesbury’, NZL Rev, 2008, 423. 105 Cfr. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), where the Supreme Court limits judicial review to the reasonableness test of the comparison made by the authority between public and private interests without taking into consideration the proportionality. On the topic, M.M. Berry, ‘Beyond Chevron’s Domain: Agency Intepretations of Statutory Procedural Provisions’, Seattle University Law Review, Vol. 30, n. 3, 2007, 541-601; G. Bognetti, ‘Il principio di ragionevolezza e la giurisprudenza della Corte suprema americana’, in AA. VV. (cur.), Il principio di ragionevolezza nella giurisprudenza della Corte costituzionale. Riferimenti comparatistici, Giuffrè, Milano 1994, 43-54. 106 V.C. Jackson, ‘Being Proportional About Proportionality’, http://conservancy.umn.edu/bitstream/handle/11299/169729/21_03_BR_Jackson.pdf?sequence=1. 107 B.V. Harris, ‘Judicial Review, Justiciability and the Prerogative of Mercy’, The Cambridge Law Journal, Vol. 62, n. 3, 2003, 631-660; Daly, 2010, 160.

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rational manner. The importance given to transparency, the absence of political responsibility of agency, the obligation to guarantee free access to providing information and data in one’s possession and wide participation required in proceedings, are all elements of a unique plan intended to favour a democratic and shared administrative action, that would not have sense if the decisions taken did not constitute the result of a logical and reasoned process.108 The power given to the agencies was founded on the high specialisation and professionalism of the appointed officials before which Congress itself would have had to limit its influence. Hence the need for administrators to respect cogency on the basis of widespread investigations conducted in the procedural phases, constituted an automatic consequence. However it is evident that the mechanism could not have affirmed itself if an ample possibility of defence in a judicial action was lacking.109 In a first moment the courts utilised the parameter of legitimacy comparing the power conferred by the Statute and that exercised by the agencies. Administrative activity, in a similar manner to the English experience, would have been ultra vires if it had gone beyond the limits conferred by the Statutes. This mechanism however had little chance of being applied as a result of the known tendency by Congress to confer blank mandates. Hence a legislative parameter for the evaluation of legality was missing. The ample participatory mechanism created for formal rulemaking proceedings should have bridged the evident democratic deficit. In this system of interest representation the agencies would have taken into consideration all the aspects inferred in the ongoing proceedings and operated with a rational comparison between the interests at stake. However once admitting judicial control, there was the need to delineate the boundaries within which the courts could act in the respect of the principle of the separation of powers and the characteristics of American administrative law. This problem exists in every country but in the United States assumed a particular importance by virtue of the reduced possibility to utilise the parameter of tight legality and the consequential substitution role taken on by the judicial control.110 In such a contest the Chevron precedent provided a particular direction to judiciary that should have rebalanced the system due to the gaps left by legislative power. In the aftermath of the ruling on the Chevron case the agencies could also interpret the attributive norms of power. Almost immediately, the deference of the American courts in favour of the technical and professional capacity of the agencies led to the inadmissibility of a review on their choices.111 108 Clark, 2013-2014, 228 et seq. on the democratic legitimization of the agencies and rationality. 109 Ivi, 226 et seq. 110 La sez. 706 dell’ Administrative Procedure act prohibits that American Courts can replace the judgement of an agency with its own, that must limit itself to verifying if a decision was arbitrary or unreasonable. 111 W.S. Jordan III, ‘Chevron and Hearing Rights: An Unintended Combination’, Adm. Law Rev., n. 61, 2009, 249. Cfr. Sandulli, 1998, 287 that highlights the caution with which the Suprem Court enters in to the evaluation of reasonableness, in the Chevron case. On the topic also, C. Carli, ‘Il caso Chevron. Interpretazione del giudice e interpretazione dell’amministrazione negli Stati Uniti’, Riv. trim. dir. pubbl., n. 4, 1995,

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The control of courts on the discretional activity thus developed in a climate of widespread reluctance to invade spaces deemed strictly attributed to executive power. It was only with subsequent adjustments that it was then possible for the American judiciary to carry out discretional evaluations via the review of reasonableness. However the degree of penetration by courts in the ambit of the decisional process of agencies has never reached the level that can be observed in the European Union,112 as regards the assessment of proportionality. The American judiciary utilises the arbitrary and capricious test, in informal proceedings cases and the substantial test if the final provision was undertaken based on formal proceedings. Due to the fact that in formal procedures the phases to follow are described in detail, an judicial analysis founded on logic does not touch procedural elements whose violations would constitute flaws in the procedure. It only examines the relationship between the acquired preliminary material and the decision undertaken. On this point courts apply an extremely weak evaluation and consider that the substantial test to have been passed if the reasons of the final provision is deemed to be sufficient by a reasonable citizen. It is the effect of deference that American courts demonstrate in relation to the functions of the agencies, above all when they involve technical matters, delegated to the professionality and capabilities of officials. When the authority follows instead the informal procedure, as occurs in the majority of cases, the judicial control occurs via the arbitrary and capricious test that is more complex, due to the fact that it involves also the choices made in relation to the type of procedure adopted.113 It is in this context that the Supreme Court embraces the hard look doctrine114 approach based on which the authority must examine important data and offer an explanation that gives cognizance to the link between the facts ascertained and the choice taken. In this manner the American courts had the possibility to verify whether the decision was based on important factors or whether there was a clear error. Administrative action thus became arbitrary and capricious if: a) the agency had taken into consideration factors that by virtue of the mandate received from Congress, they should not evaluated, b) it had totally omitted to consider an important aspect of the problem or c) it had offered an explanation to support its decision that went against that which was evident.115 However also via the elements of the hard look doctrine it proved difficult for the judiciary to detect

112 113 114 115

959-999. Recently, S.G. Breyer (cur.), Administrative Law and Regulatory Policy: Problems, Text, and Cases, Aspen Publishers, New York 2011. On the topic, P. Daly, ‘Defining Deference’, in Idem, A Theory of Deference in Administrative Law: Basis, Application and Scope, Cambridge University Press, Cambridge 2012, 1-29. Clark, 2013-2014, 233 et seq.; J. Mathews, ‘Searching for Proportionality in U.S. Administrative Law’, http://ssrn.com/abstract=2561583, 2015, 1-45. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). P.J. Smith, ‘Chevron’s Conflict with the Administrative Procedure Act’, Virginia Tax Review, Vol. 32, n. 4, 2013, 813-841.

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a flaw in the ambit of the reasoning followed by the authority, except in striking cases and moreover connected to flaws in the thoroughness of the executed investigation.116 6.2.3.1 Logic and Balancing Test in Adjudication Procedures The model of rationality in the United States necessitates that the agencies must be able to justify the exercise of power within functions that are conferred to them and demonstrate the correspondence between these functions and specific interests involved in the administrative action.117 In this context the American juridical thinking rejected the idea that judicial control on administrative action was capable of verifying interests involved utilising the European principle of proportionality.118 It prefers to address the same issue in terms of balancing the interests that emerged in proceedings. In the American context the idea of proportionality affirmed itself thus in a different constitutional space.119 The principle is a canon for the interpretation of State and Federal competencies involving directly the problematics of the federal layout of the State. Furthermore it regards the criteria that courts utilise and the techniques with which they ascribe and modulate the incisiveness of punishments.120 It concerns the whole field of fundamental rights and the relationship between morality, politics and law, and its ambit of application does not extend to the judicial control on administrative action.121 It is a condition in reality that still remains unclear if one takes into consideration that in informal procedures, the entity of the participation mechanisms, the depth of completed investigations and the degree of transparency conceded, depend on an evaluation that each agency carries out with a costs-benefits analysis. The Elderige case demonstrates the existence of a proportional reasoning that characterises the informal proceedings of adjudication, that necessarily will vary in different cases and depending on the interests involved. Mr Elderige complained that the authority had suspended his invalidity benefit before the adoption of the final provision with which it would have established whether the conditions to continue economic support still persisted. In the directive expressed by the Supreme Court, in proceedings of this type administrators must proceed in steps, verifying and 116 W.S. Jordan III, 2000, 393-439. Mathews, 2015, 13 et seq. 117 C.J. Walker, ‘Chevron Inside the Regulatory State: An Empirical Assessment (September 25, 2014)’, Fordham Law Review, n. 82, 2014, 703-729. 118 Cfr. F.J. Urbina, ‘A Critique of Proportionality’, The American Journal of Jurisprudence, n. 57, 2012, 63 et seq. Where it poses the problem that rights are not to be intended as social values. 119 M. Cohen-Eliya & I. Porat, ‘American Balancing and German Proportionality: The Historical Origins’, International Journal of Constitutional Law, n. 8, 2010, 263-286 and in particular 276. 120 S.M. Sprenger, ‘A Critical Evaluation of State Supreme Proportionality Review in Death Sentence Cases’, Iowa L. Rev., Vol. 73, n. 3, 1988, 719-742; E.J. Mandery, ‘The Principles of Proportionality Review’, Crim. L. Bull., Vol. 39, 2003, 157-191. 121 Urbina, 2012, 71 et seq., 57 et seq. On the problematics of the maximum expansion of rights and their relationship with social values.

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analysing first the interest that is harmed and the existence of possible alternative procedural models. Then it must analyse the economic and fiscal impact stemming from the choices effectuated.122 The costs-benefits analysis regards proceedings, thus the content of the administrative action and have immediate effects also on the provision that will be adopted, that in turn would not be rational if evaluations completed by the agency were incorrect.123 These are cases in which in essence the analysis of rationality, when it regards the evaluation of costs and benefits, is much resembling the analysis of proportionality on the European model, for which however juridical thinking demonstrates a deep-rooted adversity.124

6.2.4

The Idea of Proportionality in Latin America

In Latin America the proportionality appears almost everywhere within the laws together with all the other elements that guide the exercise of public functions.125 Brazilian juridical thinking tends to attribute a specific characterisation to the principle as being different and distinct from that of reasonableness.126 Law 9.748/98 requires that administrative action is conducted with an adequate balance between means and ends and prohibits the imposition of obligations, restrictions and sanctions in a measure superior to that which is strictly necessary for the actuation of public interest.127 The connection with public interest highlights that proportionality constitutes a way to effectuate the comparison between interests, alongside the principles of equality, good faith and legitimate expectation in the exercise of discretional administrative power. In Columbia the proportionality is observed in Article 36 of the Decree Law 01 of 1984 and in Article 44 of law 1437 of 2011, based on which the content of a general or specific discretional decision should be adequate to the objectives indicated by law and proportional to the ascertained facts. Proportionality is applied without distinguishing the intensity of the control, focusing instead on the existence of all the elements, both factual as well as legal, necessary to pursue the objective via reasonable criteria. Proportionality represents above all an argumentative path, a criterion of interpretation, that tries to avoid the excesses or defects in the exercise of public power, as a specific form of protection or realisation of rights and individual freedoms.128 122 Mathews v. Eldridge, 424 U.S. 319 (Supr. Ct. 1976). 123 P.-E.N. Veel, ‘Incommensurability, Proportionality, and Rational Legal Decision-Making’, Law and Ethics of Human Rights, n. 4, 2010, 178-228; T. Endicott, ‘Proportionality and Incommensurability’, in Huscroft et al., 2014, 311-343, in the opinion of which, a system to measure the balance of values that constitute always the result of discretional evaluations, cannot exist. 124 Urbina, 2012, 71 et seq. in relation to the power that would stem from the judicial function. 125 Brewer Carías, 2011, 62-64. 126 Perlingeiro, 2011, 324-325. 127 Art. 2, comma VI. 128 Oñate, 2011, 450-453.

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This approach sustains, in fact, that administrative action is to be considered proportional when: i) the limitations of subjective legal spheres follow an objective that is constitutionally legitimate, ii) the measures constitute a suitable means to realise it, iii) no other less damaging means exists to realise the same objective. It regards generally the same elements that characterise the proportionality in Europe.129 In Venezuela the proportionality is among the load-bearing elements of the structure of the law on procedures and constitutes the principle limit to administrative discretionary.130 The basic approach tries to avoid that the power of public authorities can determine, in the name of general interest, a limitation of the faculties connected to rights that is not adequate in relation to the goal to be pursued. Proportionality regards the verification of the elements in proceedings for the adoption of emergency and necessary measures for which the general law on procedure envisages the existence of special procedures. The law elaborated guiding criteria for administrative action to pass the test of proportionality when adopting urgent measures. First and foremost there was the need to demonstrate the presence of effective elements of danger and the consequent urgency that did not allow the adoption of an ordinary measure. The decision had to be perfectly in line with the objective of the conferred power and another measure was not possible in that specific situation.131 A similar approach also appears in Peru132 and in Costa Rica133 where the law sanctions invalidity of a discretionary act when it violates the elementary rules of logic, justice or coexistence. Proportionality appears also in the general law, where Article 132.1 requires that prescriptions must be proportionate to the legal objective conferred to the relative power. Hence Latin America demonstrated to have organised, at least at a normative level, precise standards with which courts could control the exercise of discretionary power, such as: correctness, rationality, justice, logic, proportionality and convenience, whose practical application depends on the development of the ongoing constitutional transition processes.

129 Corte Constitucional, C-575, 26 August 2009, www.corteconstitucional.gov.co/relatoria/2009/C-575-09.htm. Cfr. Oñate, 2011, 452-453. 130 Art. 12 of the Organic Law on Administrative Procedure. 131 V.R. Hernández-Mendible, ‘Tendencias de los procedimientos administrativos en Venezuela’, in Aberastury & Blank (cur.), 2011, 587-590. 132 Brewer Carías, 2011, 47-76. 133 A. Brewer Carías, ‘Comentarios sobre los principios generales de la Ley General de la Administración Pública de Costa Rica’, Revista del Seminario Internacional de Derecho Administrativo. Colegio de Abogados de Costa Rica, 1981, 31-57.

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6.3

The Links between Reasonableness, Proportionality and Impartiality

There are a close link between proportionality in administrative action and the absence of personal involvement of the official in charge of proceedings. The proportional evaluation of interests at stake presupposes a neutral decision, in which individual needs of the agents cannot come into play. The link between proportionality and independence is evident. Currently the diffusion of impartiality is almost total in comparative law and there are rules on the abstention by the official in charge into the general laws on administrative procedures. The independent nature of administrative evaluations is however influenced by the organisational model, from the autonomist structure of the country and the level of decentralisation. Furthermore it depends on a vast range of factors, such as the level of transparency, access and participation. It is in substance an essential characteristic of national administrative laws. There are many factors that can lead to incompatibility in the exercise of administrative functions and their importance changes case by case. Normally a personal interest on the official in charge of proceedings is not sufficient to determine an incompatibility. There is the need to verify to what extent and in what way the personal interest could influence the decision in each case. In relation to this general need there are legal experiences in which there is the attempt to prevent the phenomenon, via the duty of abstention or the possibility of removal the officials that present a personal interest in proceedings. In other cases instead the focus is for the most part on the content of the administrative action, in order to understand if there is effectively the risk of a non-partial decision. Hence one can note a diverse level of link between impartiality and reasonableness in administrative action, that appears of minor intensity in civil law countries, due to above all the importance that bias has in common law experiences. In Europe the concept of an independent authority can be noted in Article 298 of the Treaty and Article 41 of the Charter of Fundamental Rights, where impartial treatment is closely linked to the equity of the administrative action. Within the jurisdictions the situation is different because we can find specific regulations about incompatibility without any link with the reasonableness. In Finnish law, among the most incisive in the matter, the rules of incompatibility extend to all the parties implicated in proceedings, that is to say the personnel that carry out the inspection tasks, and the witnesses, interpreters and translators, where they have a relationship with one of the parties.134 In Spain the personal interest, fourth degree kinship with the parties involved or the fact of having performed the function of expert or witness in proceedings, all constitute motives of abstention.135 In 134 Finland Administrative Procedure Act n. 434/2003. 135 Art. 28 law n. 30/92. On the topic G. Doménech Pascual, ‘La abstencion en el procedimiento administrativo’, in J. Climent Barberà & J.M. Baño León, Nuevas perspectivas del régimen local: estudios en homenaje al profesor José M. Boquera Oliver, Tirantlo Blanch, Valencia 2002, 409-464; Quecedo, 2015, 166-177.

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many European Union countries the personal interest is considered a cause of incompatibility: likewise in Slovenia136 and Belgium, and the discipline is almost uniform in conferring importance to the simple suspicion of partiality.137 In Poland, in accordance with the Code of Administrative Proceedings it is possible to consider non-partial the agent based on the close kinship with the parties involved or due to a financial interest.138 Similarly in Bulgaria the same cases of incompatibility are disciplined by Article 9 of the APA.139 In Italy constitutional rules link the impartiality to the good performance.140 The regulation on incompatibility is not included in the general law on proceedings141 but is found within the code of conduct of public employees.142 However from administrative judiciary stems the orientation based on which the impartiality cannot be only suspected but requires the analysis of the role covered by the official, its bearing on the proceedings and of the reasons that could spur him to be not impartial.143 In some areas however the tendency to foresee cases of abstention and removal an official in charge of the adoption of final acts, appears somewhat diffused. It is undoubtedly in the English experience that one can note the more profound analyses on the relationship between the reasonableness and impartiality of administrative action. Here the link is so deep-rooted within the legal tradition that it represents a fundamental element of natural justice.

6.3.1

Bias and Logic in the Anglo-American Experience

Initially, the application of bias in administrative law was complex.144 Hence there was the tendency to exclude the natural justice from administrative action that did not present the characteristics of a quasi-judicial function. In Franklin v. Minister of Town & Country Planning it was established that where there was a purely administrative duty – distinct from a quasi-judicial function, the doctrine of bias could not be applied. Obviously the

136 Art. 35, comma 4, of the law of Slovenia on Administrative procedure; §9 (2) from the law on Administrative procedure in Slovacchia. 137 OECD (1997), Administrative Procedures and the Supervision of Administration in Hungary, Poland, Bulgaria, Estonia and Albania, SIGMA Papers, No. 17, OECD Publishing, 21 et seq. 138 Ivi, 37. 139 Ivi, 48. 140 Art. 97 Cost. 141 The Art. 6 bis law 241/90 Merely establishes the obligation to abstain in the event of a conflict of interests. 142 Art. 54 d.lgs. n. 165/2001, as substituted by Art. 1, comma 44, of law n. 190/2012. Conflict of interests constitutes a fundamental question in the prevention of corruption, thus as envisaged in law n. 190/2012 (anticorruption law) that, with the inclusion of Art. 6 b of law n. 241/1990, imposed upon the persons in charge of proceedings and department managers the obligation of abstention or notification of conflicts, even those considered to be potential conflicts. 143 T.A.R. Abruzzo-Pescara, 24 April 2014 n. 195. 144 M. Adler, Administrative Justice in Context, Oxford and Portland, Oregon 2010, 141.

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principle would not have undermined the idea of the impartiality of the function in itself but only the importance of the suspicion of impartiality by an official. The substitution with fairness, subsequently bypassed these obstacles.145 Currently in Anglo-Saxon law one can note a series of cases in which the impartiality of civil servants can be compromised by their interests, both of a financial as well as a personal nature. Official or departmental bias constitutes an ulterior risk of impartiality. It occurs when the official is induced to adopt a specific decision due to the fact that it is the authority to which he belongs that spurs him towards reaching an institutional objective. Also in this, as in other similar cases, a suspicion of impartiality would however exist even if the interest implicated is not personal. The main problem that involves these cases regards the choice of parameters with which to evaluate the risk of the bearing of a private interest on the ongoing proceedings. The doubt that the official could not be partial should appear at least reasonable and such as to determine a real danger of prejudice. The judgments regard mostly cases of bias related to judiciary rather than to adjudication. However there is the tendency to also apply the same parameters to administrative proceedings.146 In Pinochet147 there was a discussion on the importance of a non-financial personal interest. In Shaw the case of incompatibility regarded a judge potentially deemed to be not neutral due to the fact that he was a member of the authority that had denounced the citizen subject to his judgement.148 The approach that stems from the Shaw case highlights that bias can exist when there is a connection between the authority and one of the parties involved in the matter. Thus family or professional relationships constitute always examples of interests whose existence can determine the duty to abstention. Where instead a judge or an authority has a financial interest or of any other nature the nemo iudex in causa sua principle leads to the obligation of abstention. Dimes v. Grand Junction Canal (1852) constitutes a classic example of rule against pecuniary interest.149 Lord Cottenham presided over proceedings against a company in which previously he had been a shareholder and he was excluded from proceedings because he was considered to have a personal interest in the case. In other words there was the possibility of an apparent bias that English judges searched for via the reasonable suspicion test and the real likelihood test. The two systems differ only in the level of perception. In the first test it is sufficient that the existing situation entails the risk of impartiality, based on the judgment of a sound-minded person, while the real likelihood test requires an analysis of the actual and real probability, conducted always via the parameter of reason-

145 (1948) A.C., 87; D.D. Basu, ‘Administrative Law’, Kamal Law House, 1998, 252; Adler, 2010, 192. 146 Cane, 2011, 70. 147 The case R v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte 3 WLR 1.456 (HL 1998), known also as Pinochet I. 148 (1882) 9 Q.B.D. 394. On the topic Craig, 2012, 418-419. 149 (1852) 3 A.L.C. 759 et seq.

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ableness. In other words the first requires only a reasonable suspicion of the possibility of an impartial behaviour, while the second system needs a real probability of a non-neutral conduct. Over the years the English judiciary utilised the two tests alternatively in order to verify the presence of a potential interest. In R v. Gough (1993)150 one can note the preference towards an analysis conducted with the real likelihood test. Lord Goff instead preferred the reasonable suspicion of bias test that permitted courts to think in terms of possibility rather than of the probability of bias. In Australia the vision of Lord Goff was criticised, due to the fact that both the tests emphasised the opinions of courts, to the detriment of the perception that interested parties would have circa the lack of neutrality of the judge.151 In Webb152 and successively in Locabail,153 the court sustained that both tests would have determined the same result.154 In Porter the House of Lords clarified the concept, stating that the danger of impartiality must be real and painstakingly verified via an analysis of the facts.155 The situation is similar in the Unites States. The causes of impartiality that determine the exclusion of the administrative law judges are more or less the same. The exaltation of the independent nature of the agencies constitutes a fundamental aspect of the American administrative law that manifests a particular focus on impartiality. The rules based on which administrative law judges cannot take part in adjudication if they showed some sort of prejudice towards the parties involved or if they gave rise to the suspicion of partiality, originate from the normative set up. Knowing a priori the legal representative of one of parties involved, even only due to the fact of having participated in previous proceedings, could constitute a motive of bias.156

6.4

The Principle of Good Faith and the Strengthening of Legal Positions

Modern constitutionalism tends also expanding the principle of good faith in the exercise of public functions. Administrative activity is limited by the expectation generated in citizens 150 AC 646, 659. Cfr. Cane, 2011, 70. 151 Williams, 2000, 45-51; J. Griffiths SC, ‘Apprehended Bias’, Australian Administrative Law, Vol. 38, 2010, 353-369. 152 Webby v. The Queen (1994) 181 CLR 41, 50. 153 Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] 1 All E R 65. See M. Jefferson, ‘Contextualising Recent Legal Developments’, The Journal of Criminal Law, Vol. 75, n. 6, 411-421. 154 K. Malleson, ‘Safeguarding Judicial Impartiality’, Legal Studies, Vol. 22, 2002, 56-58. 155 Porter v. Magill (2002) 2 A.C. 357 HL. 156 J.D. Vendel, ‘General Bias and Administrative Law Judges: Is There a Remedy for Social Security Disability Claimants?’, Cornell Law Rev., Vol. 90, n. 3, 2005, 809-869; D.B. Goldin, ‘Adopting a Code of Ethics for Administrative Law Judges’, Municipal Lawyer, Vol. 21, n. 2, 2007, 9.

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by previously adopted acts or conducts. From the civil law the principle of good faith amplifies its range and confers to authorities a new evaluation parameter to balance public and private interests. Once a certain period has passed subsequent to the adoption of a measure or as a consequence of a practice or conduct repeated over time, subjective legal positions tend to be consolidated and expectations reinforced. Towards the end of the nineties however its application to public power had not yet taken place. In fact there was the tendency to exclude conferring any legal importance to the expectations generated by public functions. After all these were the years in which also in England only the legal positions recognised as rights found sufficient forms of judicial remedies and in other countries the idea of legitimate interest was developing. There were no spaces even theoretical to hypothesise some form of protection for expectations in the absence of participation in proceedings and duty to give reasons. The evolution of the State-society relationship, highlighted on numerous occasions in this work and the abandonment of the logic of authority, led to the idea that legitimate expectation could find an application in relationships between citizens and public bodies too. This idea developed first in Germany and successively in the whole of Europe.157 Initially it aimed at protecting rights involved in an administrative action. Successively it expanded to the area of constitutional law in an attempt to guarantee the non-retroactivity of laws and administrative measures, leading towards a greater affirmation of legal certainty.158 The approach originating from Germany subsequently influenced the interpretation given by EU courts. Legitimate expectation represents also a limit to the retroactivity of the law when citizens place their trust in the stability of regulations in force. German constitutionalism placed legality, legal certainty and expectation, on the same level.159 Courts believe that Parliament cannot introduce regulations that are unfavourable to citizens with an efficacious retroactivity when the relative legal positions are used. In contrast when the rules limits the powers connected to pre-existing rights, the German courts spurred public authorities to effectuate a fair balance between the needs to modify rules in force and those of the addressees of public action. This approach involved constitutional law and subsequently was implemented by administrative courts, with the aim of protecting citizens faced with unreasonable behaviour by a public body. The legislation acknowledged the approach of case law and introduced the duty for administrators that had annulled or revoked an administrative act, to compensate for patrimonial damage 157 BVerwGE, 9, 251 et seq.; BverfGE 38, 139, 148. 158 Cfr. T. Mauz, ‘Sebstbindung der Verwaltung’, DÖV, 1981, 497 et seq.; H Bauer, ‘Neue Tendenzen in der bundesverfassungsgerichtlichen Rechtsprechung zum Rückwirkungsverbot’, NVxZ, 1984, 220 et seq. The link between protection of expectation and legal certainty emerges in the decisions of the ECtHR. Cfr. P. Popelier, ‘Legitimate Expectation and the Law Maker in the Case Law of the European Court of Human Rights’, European Human Rights Law, n. 1, 2006, 9 et seq. 159 BVerfGE 10, 282, 288; BVerfGE 45, 142, 167 et seq.

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incurred by the addressees of the measure which had legitimately placed their trust in its stability. In addition the cases that regulated the withdrawal of administrative acts depending on whether they amplified the juridical sphere of the addressees or determined an obligation on citizens, were differentiated.

6.4.1

Withdrawal of Acts and Legitimate Expectation in Germany

The revocation constitutes an exception in relation to the general rule that requires the stability of adopted acts. Authorities however could legitimately issue a measure reserving the right to revoke it. In this case the possibility of revocation envisaged in the act itself would constitute an obvious obstacle to the expectation, due to the fact that the addressee would know from the beginning the precarious nature of the adopted act.160 A withdrawal is also possible when the administrative measure is subject to conditions that or were not respected by the addressee or were carried out late in relation to the established times. Nevertheless in this case the application requires that the importance of the non-respected condition be analysed. In other words the proportionality prevents that an administrative measure can be withdrawn when the violation of a clause is not so important for public interest. Another situation of revocation can occur in cases in which new facts emerge and the maintenance of the measure previously adopted no longer appears to conform to public interest. An example of this situation can be found in the Italian system. Furthermore the withdrawal of an act is permitted when new regulations are in force that would have impeded its adoption and always provided that the measure had not been executed yet or that the addressee had not used the accorded benefits. In any case it is necessary that the authority demonstrates its contrariety to public interest in order to legitimately withdraw the measure. In general the rule that allows the revocation of acts due to important contrasts with public interest constitutes a maximum hypothesis. This measure is only possible within confines of legitimate expectation, legality and proportionality.161 These conditions are valid also in cases regulated by Article 38 et seq., that occur when an authority committed itself to maintaining the adopted measure via the issuance of an expressed guarantee. In this case the expectation of the citizen has a notable legal force. In fact for a public body it is possible to not respect the commitment undertaken only if a modification of the situation de facto or de jure comes to light that would have prevented the issuance of the guarantee.162 160 Art. 49, comma, 2, n. 2 VwVfG. 161 Stelkens, 1998, para. 48. 162 Kopp & Ramsauer, 2013, para. 38.

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In this situation the principles of legality and legitimate expectation assume a different importance depending on whether the type of administrative act creates, modifies or extinguishes a subjective legal position or imposes obligations. For acts which grant financial benefits the protection of legitimate expectation tends to the maintenance of the created situation. The expectation remains worthy of protection when beneficiaries utilise the service granted or if they deploy the financial resources in such a way that it is not possible to return to the previous situation without paying a high price.163 On the contrary legal importance is not attributed to expectation in cases in which the beneficiary obtained the administrative act by fraud, threat or corruption or on the basis of false representations of the truth or if he was aware of the its illegitimacy or he could has been aware, utilising normal diligence.164 The withdrawal of a constitutive act of new legal positions is possible only within the time limit of a year that starts from the moment in which the authority gains knowledge of the element that could determine the annulment, with the exception of cases in which the beneficiary obtained the administrative act by fraud, threat or corruption that impede the passing of time.165

6.4.2

The Spreading in the European Context

The German idea of legitimate expectation appeared immediately in line with the development of the subjective legal positions in EU law. Following the influence of the German constitutional judge the European Court of Justice considered the principle as fundamental element of rights that were emerging in Europe.166 The essential nucleus of legitimate expectation was identified with the good faith.167 In European law expectation generated in citizens concerns also the retroactivity of rules.168 The certainty of rights becomes a limitation to the free definition of public interest when authority adopts new regulations. Administrative action would have to consider the expectation generated over time in the addressees. It would have to evaluate the good faith that is formed if the benefit obtained is clear and unambiguous and the act is stable and efficacious, so much so as to consider that expectation was formed in a reasonable way. 163 164 165 166

BVerwGE, 67, 305, 312. Art. 48, comma, 2, n. 2 VwVfG. BverwG, 14 August 1986, D.V.BL., 1986, 1205 et seq. The principle of the legal certainty and legitimate expectation are often observed in one context. Cfr. recently Corte di Giustizia, 9 July 2015, Case 144/14, Cabinet Medical Veterinar. 167 In some cases, however, the EU judge bases his decisions on the idea of juridical certainty, rather than on the good faith. Cfr. Corte di Giustizia, ruling 17 March 2011, Case 221/09, AJD TunaLtdv. DiretturtalAgrikoltura u s-Sajd, Avukat Generali; Idem, ruling 18 June 2013, Case 681/11, Bundeswettbewerbsbehörde. 168 Two sides of the principle of expectation emerge: a protection of legitimate expectation and an obstacle to the retroactivity of legal effects.

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There is the necessity of objective good faith in the addressee of the act that constitutes the parameter of legitimacy of the expectation. The last element is the passing of time.169 The principle adds an evaluation parameter that is rooted on the passing of time and on the good faith of the citizen. Its application requires therefore a partial regression of strict legality, due to the fact that the illegitimacy of the act and the presence of a public interest are no longer considered sufficient for the annulment of an administrative act, whose invalidity is discovered after the elapsing of an established period of time. However it appears evident that the expectation generated in a citizen by the conduct of authorities cannot certainly constitute an absolute value such as to dominate other principles that regulate administrative action: once the public body verifies the existence of an expectation legitimately formed, it is thus bound to effectuate a comparison with other interests at stake. The model which affirms itself in the EU system in essence leaves an authority free to choose, provided that however it takes into account the expectations legitimately generated. In turn the principle of legal security acts as a limit to the retroactivity of administrative acts. The repercussion of this approach within States did not appear however by no means easy for different reasons. The circumstance that, on an EU level, the legitimate expectation found its affirmation also in rulemaking, induced the jurisdictions to behave in a rather prudent way also with regards to its direct application in administrative proceedings. Thus in various States of the European Union the aspect of legal certainty was developed more, while in others the principle was more directed towards the evaluation of expectation generated in a citizen by administrative action. In Spain and in Portugal the principle of expectation tends to affirm itself above all in the administrative law, while in France, Denmark, Belgium and Greece prevails the aspect of legal security. Great Britain and Ireland demonstrate instead a certain reluctance to acknowledge the existence of a new element of evaluation in public action by virtue of the consolidated legal tradition that had connected similar problematics to the fairness. Legal security and protection of legitimate faith find separate applications within the European States. In reality the observation of some moments of administrative action highlights that also in those experiences that had not proceeded with the acknowledgement of the model that had been affirmed in the EU system, the legitimate expectation is applied. This refers mostly to the times, modalities and criteria with which institutes of annulment or revocation of administrative acts in each legal experience are regulated. In fact in many cases the rules also require carrying out of comparative analyses with interests of addressees

169 Thus Tribunal I grado, VIII, 16 October 2014, Case 177/10, Alcoa Trasformazioni v. Commissione, www.curia.europa.eu.

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of measures in which it is easy to perceive the application of elements similar to the legitimate expectation.

6.4.3

Procedural Expectation. The Spanish Case

In Spain the good faith is applied also to relationships between citizens and administrators via the concept of confianza legitima.170 The reception of the European model did not therefore face particular difficulties in this experience above all in relation to the withdrawal of administrative acts, that already in the internal regulating was marked by a particular focus on the protection of legal positions. In this model the influence of the administrative justice system is evident. It constitutes a middle road between the French experience and that of the United Kingdom. The power conferred to public authorities to withdraw their administrative measures is in fact typical of States that exalted the role of puissance publique and the central function of the administrative act. The Spanish system reconstructed its administrative law on this bases: administrative acts are executive and enforceable and hence equipped with a force that typically allows having a bearing on subjective legal positions. The regulating related to the withdrawal of adopted acts is particularly characteristic. The Spanish system distinguishes two types of invalidity: nullity and annullability. For the regulations only the hypothesis of nullity are envisaged.171 Annullability constitutes the general rule for the deletion of an invalid administrative act, while nullity has an obligatory application.172 The current approach is the result of a historical evolution focused on the protection of subjective legal positions determinated by measures previously adopted. Before the law of 1958 an authority could adopt withdrawal measures of constitutive acts of rights within a maximum time limit of 4 years and only when there were grave violations of law or regulations. In essence there was the need to evaluate the gravity of the illegitimacy detected in the administrative act from which the existence of the power of self-protection depends. In the contrary hypothesis in fact a public body would had no other alternative but to declare the contrariety to public interest of an unlawful measure within the time limit of 4 years and proceed with the successive appeal. With the law of 1958 any possibility to revise their acts as a means of self-protection, was denied to a Spanish authorities, whenever their action had had a bearing on rights

170 J. Rodríguez Arana, ‘El principio general del derecho de confianza legítima’, Ciencia Jurídica, n. 2, 2013, 59-70. 171 L’art. 62. 2 LAP. The regime of invalidity of administrative acts is clearly distinct from those of regulations, that establishes for these latter only a complete nullity. This sanction is applied both with regards to flaws in content as well as those procedural; Cfr. R. Bocanegra Sierra, Lecciones sobre el acto administrativo, Civitas, Madrid 2012, 229; García de Enterría & Fernández Rodríguez, 2015, 214-217. 172 Art. 63 LAP.

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acquired. The illegitimacy of acts previously adopted that had amplified subjective legal positions, would have led to the activation of proceedings aimed first and foremost at verifying the existence of a public interest, to be concluded with an expressed measure of a declaration of harmfulness. At the end of these proceedings thus an authority would have to challenge the invalid act. In essence the principle of irrevocability was affirmed about declaratory acts of rights as a means of self-protection while the revocation of other illegitimate acts was considered widely admissible.173 The 1992 law on procedure reintroduced the possibility to withdraw declaratory acts of rights. However the subsequent law 4/99 eliminated this eventuality once again. In Spain, since 1999 a regime that does not give the possibility to authorities to withdraw ex officio acts that are unfavourable to the addressees is in force.174 In the event that a successive invalidity of measure is detected authorities would be obliged to resort to an ordinary procedure for the declaration of harmfulness with a successive judicial action. In essence when an authority deems an act illegitimate, two roads are open. Whether illegitimacy involves invalidity or when the adopted administrative measure does not regard the rights of the interested parties, authorities can exercise their power to withdraw and/or annul its acts. On the contrary the public body must activate the procedure envisaged and challenge the measure. The new rules also resolved an interpretative problem. In the first version measures that had the characteristic of amplifying the sphere of citizens’ rights were drawn into the revision procedure. In this way a Spanish administrator could however revoke those measures that did not determine an amplification of rights albeit favourable.175 Successively the new disposition substituted the words ‘citizens’ rights’ with that of ‘favourable measures’, further reducing the cases in which an authority could utilise the revocation procedure. Thus starting from the 1999 reform a public body cannot revoke administrative measures that are favourable to an addressee even in cases in which they do not establish an amplification of his rights or interests. The revision procedure can be actuated within a maximum time limit of 4 years.

173 E. García-Trevijano Garnica, ‘Consideraciones sobre la revocación de los actos administrativos no declarativos de derechos y de gravamen’, Revista Española de Derecho Administrativo, n. 91, 1996, 418; A. Fortes Martín, ‘Estudio Sobre la revocación de los actos administrativos’, Revista de Derecho, n. 1, 2006, 149-177. 174 J.A. Santamaría Pastor, ‘Caducidad del procedimiento (art. 44.2 LRJAP)’, Revista de administración pública, n. 168, 2005, 7-56. 175 Fortes Martín, 2006, 149 et seq.

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6.4.4

The Soft Reception in France

France, where general interest constitutes the fundamental nucleus of the puissance publique, showed resistance towards the reception of the principle of legitimate expectation.176 It was acknowledged with the ruling of the Administrative Tribunal of Strasburg in 1994, the Freymuth177 from which stems the orientation based on which if an authority intends modifying regulations, it is bound to inform the interested partiers and adopt temporary measures with the objective to not damage their expectations. In reality rather than formalising legitimate expectation, participatory aspects are underlined. Some authors welcomed with enthusiasm the innovation178 that was immediately reduced by the Conseil d’État. It limited the application of the principle in the ambit of the EU law excluding its effects on matters disciplined only by internal rules.179 The French system tends in fact to exalt the force of general interest when it justifies the withdrawal of an administrative act.180 However the balancing point for compensating the needs of legality with the principle of the non-retroactivity of administrative acts and the intangibility of favourable individual decisions was sought for with the definite time limit in order that an authority can withdraw an administrative measure. Thus the aim was to avoid that expectation could be formed and the consolidation of a subjective legal position.181 Rules and procedural phases for the withdrawal of administrative acts is owed

176 M. Fromont, ‘Le principe de sécurité juridique’, AJDA, n. spécial 179, 1996, 178-184; M.A. Benabdallah, ‘Le principe de confiance légitime Note sous C.S.A., 18 mars 2009, Badri et autres’, REMALD, n. 101, 2011, 127-133; L. Tartour, ‘Le principe de protection de la confiance légitime en droit public français’, RDP, n. 2, 2013, 310. 177 Cfr. Tribunal administratif de Strasbourg, 8 December 1994, Entreprise Freymuth c. Ministre de l’Environnement, AJDA, 1995, n. 7-8, 555 et seq.; M. Heers, ‘La sécurité juridique en droit administratif français: vers une consécration du principe de confiance légitime’, RFDA, 1995, 963 et seq.; D. Mazeaud, ‘La confiance légitime et l’estoppel’, Revue internationale de droit comparé, n. 2, 2006, 363-392. 178 The debate is in Tartour, 2013, 310 et seq. 179 Conseil d’État, 9 May 2001, n. 210944, Enterprises personelles Transports Freymuth; Conseil d’État, 28 July 2011, n. 327174, L’association des pensionnés civils et militaires, Conseil d’État, 16 November 2011, n. 344972, Société ciel et terre. 180 O. Di Giacomo, ‘L’ annulation d’ une décision de retrait d’un acteadministratif fait-elle maître un nouveau délai dans lequel il pourrait etre procédé a la réfection de ce retait?: Commentaire de l’arrêt du Conseil d’État n 202.019 s.a. conduites et Entreprisese.a., du 17 mars 2010’, Revue du droit public et des sciences administratives, n. 1, 2013, 16-46. 181 Conseil d’État, 24 March 2006 n. 288460, Société KPMG et autres, in www.revuegeneraledudroit.eu. The administrative judge, even if he had rejected the reference to the concept of the protection of legitimate expectation, legitimized “une règle de modération des atteintes aux relations juridiques legalmente instituées” that marked an important stage in the evolution of French public law. Cfr. F. Chaltiel, ‘La consécration du principe de sécurité juridique par le Conseil d’État’, Rev. du marché comm. et de l’Un. Eur., 2006, 457 et seq.; B. Mathieu, ‘Le principe de sécurité juridique entre au Conseil d’État’, AJDA, 2006, 841 et seq.; J.-M. Woehrling, ‘L’obligation d’édicter des mesures transitoires comme des instruments de protection des situations juridiques constituées (à propos de la sécuritéjuridique)’, RDP, n. 1, 2007, 285 et seq.

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to case law and the revocation is only possible in the established time limit182 coinciding with a period within which the proposal of a judicial appeal is permitted. In this model the withdrawal of an act by a public authority and judicial action are incorporated in one solution that avoids overlapping. The power of an administrative judge begins where that of a public body ends. The stability of administrative action and the certainty of the law assume a greater importance; the principle of legality recedes in the face of needs considered to be superior to that of the strict legality of administrative acts.183 The courts’ decisions approach was acknowledged hence in decree n. 1341 of 2015 that regulated the modalities and times for the withdrawal of invalid measures. Similar rules are applied also when there is the need to withdraw a tacitly formed act, for which two possible modalities exist: an explicit way when an authority adopts an expressed measure and another implicit in cases in which the interested party is notified of an administrative act of rejection of his petition, after the elapsing of the time limit for the tacit approval. The mechanism is however difficult to apply to third parties that normally do not receive any notification related to an act adopted in favour of others. In fact in the absence of such a notification, the period of forfeiture of the power of self-defence remains suspended.184 In order to overcome this difficulty there was an attempt to establish a definite time limit: except in the case in which an expressed request by a third party there was, a measure that produces an amplification of the legal positions of the addressee cannot be annulled by the authority once the 4 months from its adoption have elapsed.185 The situation is different in the case of silent rejection where the withdrawal of a tacit measure could in theory occur in any moment. However this possibility in reality damages citizens in cases in which an authority fails to communicate reasons of the tacit rejection.186 This failure in fact renders illegitimate the silent rejection in the time limit of a month from the request. Thus the public body could withdraw the illegitimate tacit denial and decide with an expressed measure on the petition of the citizen, rejecting it again but with

182 This approach stems from the well-known ruling of the Conseil d’État, 2 November 1922 n. 74010, Dme Cachet, Rev. dr. pub., 1992, 552 et seq. Recently, Conseil d’État, 26 January 2007 n. 284605, SAS Kaefer Wanner, AJDA, 2007, 635 et seq. On the evolution of the successive courts’ decisions, refer to the reconstruction of Chapus, 2001, 1156 et seq. On the topic, A. Met-Domestici, ‘ La sécurité juridique: consécration nouvelle d’une exigence ancienne. Précisions sur les enjeux de la reconnaissance par le Conseil d’ État du principe de sécurité juridique’, Revue de la Recherche Juridique, n. 4, 2007, 1873 et seq. 183 B. Delaunay et al., ‘Chronique de l’administration’, Rev. fr.adm. pubbl., n. 4, 2015, 539-571. 184 Chapus, 2001, 1158-1160. 185 Recently cfr. Conseil d’État, 26 November 2012 n. 353116, Société Soditelmer, and Conseil d’État, 26 October 2001 n. 197018, M. Ternon, Rev. fr. dir. adm., 2002, 77. On the question, P.L. Frier, Précis de droit administratif, Montchrestien, Paris 2004, 310-311. Cfr. anche J.K. de Graaf & N.G. Hoogstra, ‘Silence is Golden? Tacit Authorizations in the Netherlands, Germany and France’, www.rug.nl/research/portal/files/10665713/De_Graaf_and_HoogstraREALaw_2_1.pdf, 30 et seq. 186 P. Cassia, ‘La décision implicite en droit administratif français’, La Semaine Juridique Administrations et Collectivités territoriales, n. 27, 2009, 33.

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6.4.5

The Problematic Application in Italy

The procedural protections that were present in the Spanish and French experiences, are not be found in the Italian system that manifests a problematic approach to the legitimate expectation. The principle is affirmed above all in administrative law and the aspects connected to rulemaking do not highlight particular applications.188 As in Germany the good faith found a particular application in patrimonial relationships.189 However a slight openness also in administrative law can be noted before the EU influence.190 This refers to the theoretical approach related to the official de facto, reinforced by the refinement of solutions that little by little were adopted in private law also in cases of apparent representation191 and in relationships of financial brokerage.192 However they were isolated cases and were not ascribable to a constitutional approach. Contrary to the German experience, in Italy there is no trace of the protection of expectation in Constitution nor is it recognisable in judgments of the Constitutional Court193 that tend more or less to link the legitimate expectation with the reasonableness.194 The theoretical approach however did not reach the precision with which it affirmed itself in Germany. The references to expectation generated by administrative action were mainly expressed with the intent of reinforcing argumentations, in reality, that were founded on various canons of reasonableness and proportionality. Law n. 241/90 refers to EU principles immediately applicable within the internal system. A part of Doctrine

187 Ivi, 34. 188 F.G. Scoca, ‘Amministrazione pubblica e diritto amministrativo nella giurisprudenza della Corte costituzionale’, Dir. amm., n. 1-2, 2012, 21 et seq. 189 With a particular reference to pre-contractual liability Cfr. Giannini, 1981, 518. 190 F. Merusi, Buona fede e affidamento nel diritto pubblico. Dagli anni “trenta” all’“alternanza”, Giuffrè, Milano 2001, 561-571. 191 Cassazione Civ., 12 January 2006, n. 408, Giust. civ., n. 1, 2006, 1490 et seq.; Sez.III, 27 January 2015, n. 1451, www.dirittoegiustizia.it. 192 Cassazione Civ, sez. I., 7 April 2006, n. 8229, Corr. giur., n. 11, 2006, 1541, with comment of F. Mottola, ‘La responsabilità delle SIM tra disciplina codicistica e normativa speciale. Cassazione civile, sez. I, 7 April 2006, n. 8229’. 193 The constitutional judge used the principle of non-retroactivity of laws in expropriation matters Cfr. Corte costituzionale, 30 January 2009, n. 24, www.cortecostituzionale.it. For a comment, refer to a S. Spuntarelli, ‘La buona fede quale parametro di giudizio per la tutela del legittimo affidamento’, Giur. cost., n. 1, 2009, 175 et seq. 194 About the relationship between the principle of expectation and the constitutionality of retroactive rules, cfr. Corte costituzionale, 4 November 1999, n. 416, 15-22 November 2000, n. 525, www.cortecostituzionale.it. The reasoning was made and developed by the Corte di Cassazione, civ., sez. trib., 10 Dicember 2002, n. 17576, Foro it., n. 1, 2003, 1104 et seq.

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individuated the principle of expectation in other rules that discipline administrative action: the subjection to principles of private law of the non-authoritative activity with an implicit reference to the criteria of good faith and fairness, the obligation of collaboration envisaged in Article 10 b, that before the adoption of the rejection measure obliges authorities to communicate the impedimental reasons for the approval of the petition. For some, the violation of legitimate expectation remains within the abuse of power rather than being a legal error of the procedure.195 Italian judiciary acknowledges legitimate expectation only in the cases in which the expectation of interested parties is founded on a legitimate practice or however is founded on rather solid premises, such as circulars or secondary legal sources.196 Here one can note the link between the legitimate expectation and the abuse of power. The withdrawal of a measure that had generated expectation in a citizen, that in turn is founded on a circular or a rule, is illegitimate not due to the violation of expectation but above all because if a public body wants to distance itself from a previous circular, it has to give reasons to avoid incurring an abuse of power.197 In the second degree proceedings the principle finds its greatest application.198 However it is rather difficult to find cases in which Italian administrative courts annulled annulment or revocation decisions only on the bases of legitimate expectation. Its application is more probable where the period of time elapsed between the adoption of the measure and the withdrawal act was deemed excessive. In these cases too courts’ decisions highlight that the principle does not constitute a real obstacle to the prevalence of public interest. In reality these oscillations depend on the typology of interests at stake. The protection of legitimate expectation finds a particular application when the right to health is involved199 or in competition sectors. According to case law the application of the institute is recorded 195 Casetta, 2004, 483 et seq. 196 Consiglio di Stato, sez. V, 30 Dicember 2015, n. 5862 on the balancing between public interest and legitimate expectation. 197 M.S. Giannini, ‘Circolare’, voce, Enc. dir., Vol. VII, Giuffrè, Milano 1960, 1 et seq.; Casetta, 2004, 487 et seq. 198 T.A.R. Toscana-Firenze, sez. I, 24 March 2010, n. 742. The principle however does not appear to prevail in itself on the need to restore legality, if the revocation is adopted in a short period of time and there is a public interest. Cfr. T.A.R. Puglia-Lecce, sez. III, 6 June 2008, n. 1852, www.giustizia-amministrativa.it. See M. Sinisi, ‘Il “potere” di revoca’, Dir. amm., 2007, 625-663; S. Puddu, ‘La revoca: profili problematici alla luce del nuovo art. 21 quinquies, comma 1 bis, l. n. 241 del ’90’, Dir. e proc. amm., 2008, 566 et seq.; G. Piperata, ‘Il ritiro del provvedimento amministrativo tra annullamento e revoca, commento a Consiglio di Stato, sez. VI, 14 January 2009, n. 136’, Gior. dir. amm., n. 11, 2009, 1191-1199. 199 With a recent ruling, the Council of State annulled a deliberation of the regional council of Sardinia, that had establish, with retroactive efficacy, the maximum limit of the sustainable budget for the regional health fund and had implemented a reduction in the distribution of the budgets for the Local Health Districts. The administrative judge carried out in essence an attentive balancing between public interest in the reduction of public expenses, right to health and the interests of the private workers of the certainty of juridical relationships, and saw in the extension of contracts previously stipulated, these concrete elements that establish the prevalence of the legitimate expectation of the health workers in relation to cost containment. Cfr. Consiglio di Stato, Sez. III, 16 March 2015, n. 1358, www.giustizia-amministrativa.it.

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in the sector of public calls for tenders where it is relevant in all phases of proceedings up to the adjudication.200 In the Italian judiciary approach, when some clauses for the call for tenders for the entrustment of a contract for public works result as being ambiguous, the interpretation that favours the widest participation is to be preferred201 by virtue of the legitimate expectation.202 Finally the rules regarding requirements for participation in public competitions within the tender notice203 must be interpreted according to the substantial content and not in a purely formal manner.204 Thus the link between the period of time elapsed and the attribution of the responsibility of the legal flaws for the withdrawal of the main act, is rather constant. In this symbiosis emerges the connection that is made by the Italian judiciary between good faith and legitimate expectation, which normally is not deemed to exist if the error that led to the adoption of an illegitimate act can be attributable to the interested.205 In the case of the paying back of unlawful payments, the Italian judiciary encourages the taking into consideration of a wide range of elements, such as: i) who is responsible for the error that led to the payment of undue sums, ii) the long period of time that elapsed between the date of the payment and that of the emission of the payback measure, iii) the eventual tenuity of the paid sums also in reference to the services rendered, iv) the complexity of the bureaucratic machine from which the error of the calculation originated.206 However the application of the legitimate expectation in these cases is rather problematic.207

200 L. Bertonazzi, ‘La tutela dell’affidamento nelle procedure selettive’, Dir. proc. amm., n. 1, 2010, 39-118. 201 It would not be possible to sanction with exclusion from the procedure a candidate who had had a conduct in accordance with the indication provided by the contracting authority about the interpretation of the disciplining of the call for tenders. Cfr. Consiglio di Stato, Sec. V, 20 April 2011, n. 2446, www.giustiziaamministrativa.it. V. Carbone, ‘Le nuove frontiere della responsabilità precontrattuale della P.A.’, Corr. giur., n. 5, 2012, 675 et seq. 202 For years the principle of legitimate expectation was utilised to favour maximum participation in calls for tenders, in cases of dubious interpretation of the clauses. Cfr. T.A.R. Sicilia-Palermo, sez. II, 5 June 2002, n. 1455; T.A.R. Sicilia-Catania, sez. I, 7 January 2003, n. 22, www.giustizia-amministrativa.it. 203 On the necessity that each modification to the content be made known to the candidates in the same forms which were used to publish the call for tenders, cfr. Consiglio di Stato, Sez. IV, 25 May 2011, n. 3139. In a partially contorted sense T.A.R. Lazio, Roma, Sez. III ter, 8 June 2011, n. 5113, that, recalling T.A.R. Sardegna, Sez. I, n. 564/2004, excludes the obligation to republish each modification of the provisions of the call for tenders, limiting this only to the important clauses that can have a bearing on the candidates. 204 The expectation of a citizen is to be considered prevalent if the error has been induced by the authority. Consiglio di Stato, Sez. V, 10 Jenuary 2012, n. 31. 205 T.A.R. Campania-Napoli, Sez. VII, 7 June 2013, n. 3030. 206 Consiglio di Stato, Sez. V, 13 April 2012, n. 2118. 207 Consiglio di Stato, Sez. V, 16 June 2009, n. 3881; Idem, sez. IV, 04 February 2008 n. 293, that sustains the theory of the dutifulness to recuperate sums wrongfully paid out by a public body to its employees also beyond a long period of time. The protection of expectation is excluded if the economic benefit is the fruit of illegitimacy that is deemed to be clear and evident, even if the beneficiary did not have an active role. Cfr. Consiglio di Stato, Sez., V, 15 November 2012, n. 5772.

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Same difficulties arise in cases of the withdrawal of administrative acts related to the violation of urbanistic disciplines.208 The Italian judiciary deems that the abusive transformation of the state of areas constitutes a permanent crime, integrated by the violation of the duty to restore the state of areas. It is a circumstance that does not allow considering that the long period of time elapsed between the infringement and the restoration measure could give rise to a legitimate expectation.209 Most of the time the principle is used to verify the reasonableness of an administrative action.210 The parameter of logicality becomes thus the ambit for a research into illegality generated by addressees of the measures. This data confirms that from the Italian experience it is not possible to extract consolidated cases of expectation in withdrawal acts. This circumstance highlights all the problematics that derive from it in terms of legal certainty. Italian Parliament tried to find a solution with the first disposition that established a time limit of 18 months beyond which an public body loses its power to annul invalid acts that issue authorisations or entail economic advantages, demonstrating to have adopted the French system.211 The law however is not sufficiently clear.212 Hence the principle of expectation finds its greatest application when Italian administrators are bound to respond to damage caused as a consequence of the revocation of administrative acts and does not seem to have a particular value in contrasting an administrative action that intends withdrawing adopted acts.

6.4.6

Estoppel and Legitimate Expectation in Great Britain

In the English experience the principle has two souls strictly linked to the dual meanings that the expression can assume.213 At times courts utilise the same concept to refer to the right of citizens to be heard before an authority can adopt an unfavourable measure against them. In other cases the principle is to be found in rulings related to value that the behaviour of an public body has generated in a citizen. The second aspect, more attributable to the notion that affirmed itself in Germany and in EU, in England constitutes for the most part the development of the concept of estoppel on which the European Union exercised its influence. Estoppel is the Anglo-Saxon transposition of the principle of Roman law ‘nemo 208 Normally, one deems that a notable period of time elapsed between the commission of the abuse and the adoption of the demolition decree can constitute the symptomatic index of a legitimate expectation. In this case the Municipality have to give additional reasons about a specific public interest to the issuance of a demolishing sanction. Recently Consiglio di Stato, Sez. VI, 8 April 2016, n. 1393. Sul tema A. Cassatella, ‘Una nuova ipotesi di annullamento doveroso?’, Foro amm., n. 3, 2010, 810-834. 209 T.A.R. Lecce, Puglia, sez. I, 05 November 2015, n. 3155; Consiglio di Stato, sez. IV, 29 February 2016, n. 816. 210 F. Merusi, ‘Il punto sulla tutela dell’affidamento nel diritto amministrativo’, Giur. it., 2012, 1195 et seq. 211 Art. 21 nonies, comma 1, law n. 241/90. 212 Art. 21 nonies, comma 2 bis, law n. 241/90. The link with good faith is evident in the analysis of the rules that render the new provision inapplicable in cases of administrative measures obtained on the bases of false representations of the facts or auto-certifications or by effect of criminal conducts. 213 S. Hannett & L. Busch, ‘Ultra Vires Representations and Illegitimate Expectations’, Public Law, 2005, 729.

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potest venire contra factum proprium’: that is to say a party cannot act in a contradictory way in relation to an understanding that it generated in the other party that reasonably placed his trust.214 The institute found an easy application in private law: the situation is different however when one part is an authority which acts into the limit of legality and the doctrine of ultra vires.215 Its expansion is conditioned in fact by few case law mostly linked to cases in which private parties endured a prejudice as a consequence of false information provided by a public body. Estoppel was cited by the English judiciary in order to consider legitimate the adoption of a measure that was beyond the sphere of competence of a public official. The case is related to an official that had instead also emitted measures that fell outside his conferred competencies, albeit that he had received a limited mandate for the adoption of specific categories of acts. The measure was deemed to be legitimate despite the fact that the delegated official did not possess that specific competence because the functions exercised could have been however legally delegated to him.216 A further application case of the estoppel occurred when the authority had adopted a final measure without respecting the decision making procedure. The principle did not allow that same authority could use the defect of form that it had contributed to create by not respecting the procedure.217 However in these cases the judiciary did not have the opportunity to deal with the relationship between estoppel and the ultra vires doctrine.218 The institute imposes a general duty of coherence and fairness in administrative action which should prevent a public body from contradicting its previous behaviour.219 In the ambit of relationships between citizens and administrators the principle would be hypothetically applicable every time an administrative measure or behaviour is modified when an authority had created an expectation that was worthy of protection. The Lever Finance Ltd v. Westminster (City) London Borough Council case220 offered the English judiciary the first occasion to analyse the scope of estoppel in relation to the rule of law. In the opinion of Lord Denning the illegitimate behaviour of the authority had however determined the existence of an apparent competence, enough to generate a legitimate expectation in the citizen with regards to the validity of indications given by the official without that specific function. However the administrative action was ultra vires and such a circumstance prevented at the base the attribution of a legal importance to the expectation. Lord Denning encouraged its application but it was clear that there was the need to resolve the problematics of contrast with the rule of law if the decision was been 214 215 216 217 218 219 220

T. Endicott, Administrative Law, Oxford University Press, Oxford 2009, 282-283. Hannett & Busch, 2005, 729. R. Leicester City Council, ex parte Powergen UK Ltd (2000) 80 P & CR 1976 et seq. South Buckinghamshire District Council v. Flanagan (2002) EWCA civ 690 1 WLR 2601. R (Bloggs 61) v. Secretary of State for Home Department (2003) EWCA civ 868 1 WLR 272. Eg R (Wagstaff) v. Secretary of State for Health (2001) 1 WLR 292. Lever Finance Ltd v. Westminster(City) London Borough Council, [1971] 1 QB 222. U.

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ultra vires. There was the possibility of the permanence in the legal system of acts affected by particularly grave violations.221 The Preston case provided the occasion to dwell on the relationship between the behaviour ultra vires and the legitimate expectation. English juridical thinking underlined that particular attention should be paid to the content of behaviours of a public official versus citizen in order to understand if expectation had had or not a reasonable possibility of being formed.222 To avoid these contradictions English judiciary detached itself from the estoppel in relationships between administrators and citizens and focused its attention on the theory of legitimate expectation.223 Thus there would have been a new institute on which to identify the ambit of application of legitimate expectation much more in line with the English legal tradition and would have allowed the exclusion of cases in which expectations of citizens were been generated by the behaviours ultra vires.

6.4.7

The Conservative Approach in the Anglo-American Experience

English juridical thinking preferred to analyse problematics of legitimate expectation from a different viewpoint in relation to the private law approach. It sought in its system elements with which to confer a form of protection to legitimate expectation;224 almost immediately the principle was connected to substantive fairness225 that in the past had recorded a notable evolution towards the criterion of the impartiality of administrative action. A further and direct connection with legitimate expectation was then individuated by English juridical thinking with the principle of proportionality, in so far as it requires that in the investigation phase an authority must take into account the interests of implicated parties.226 Expectation becomes possible only if it is founded on acts and behaviour that conform with the regulation in force. Thus an administrative decision must not contrast with Statutes nor with duties of the official and must fall into the competencies that they must carry out. From this approach stems an important consequence: in the United Kingdom, legitimate expectation is not formed in case of decisions assumed ultra vires.

221 Craig, 2012, 703-706 in the opinion of which there is the need to also verify the impact on the person, with an analysis that would shift thus also onto the characteristics of the subject on which the expectation is generated. 222 R (BAPIO Action Ltd) v. Secretary of State for the Home Department (2008) UKHL 27 1 AC 1003. 223 The evolution of the doctrine of legitimate expectation in the jurisdiction of Common law can be connected to a Obiter Dictum di Lord Denning M.R in Sehmidt v. Secretary of State for Home Affairs [1969]. Cane, 2011, 162-165. 224 Endicott, 2009, 279. 225 Craig, 2011, 641 et seq. 226 P. Sales & K. Steyn, ‘Legitimate Expectations in English Public Law: An Analysis’, Public Law, 2004, 564 et seq.; Endicott, 2009, 285.

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Administrative Action and Procedures in Comparative Law The Coughlan case227 highlights a further characteristic of the manner in which problematics connected to legitimate expectation were dealt with. Mrs Coughlan had been seriously injured in a road accident. She had been hospitalised at the New court Hospital from 1971 to 1993, when together with other patients she was persuaded to move to Mardon House, a new structure deemed more suitable for taking care of the medical needs of patients. Mrs Coughlan was given the reassurance that she would remain in the new structure forever. But in 1998 the Ministry for Health decided to close the structure and transfer elsewhere all the patients. Mrs Coughlan contested the measure in a judicial action for damage to her legitimate expectation and the court of Appeal ruled that it was fair to uphold the existence of a legitimate expectation by the claimant, by virtue of the informal commitment assumed in 1993 by the Ministry. The judiciary ruled that the closure of Mardon House was to be deemed unfair acknowledging thus an abuse of power. The Coughlan case gave rise to a rather intense debate, in the search for a balance between limits of the power of English courts over administrative action and the legal guarantees for the acknowledgement of human rights. If interpreted in an broad sense the legitimate expectation of citizens would prevent an authority from going back on its decisions and the judiciary would have the power to bind the public body to respect measures previously assumed.228 Diverse is the case if the principle entails above all duties to give reasons to be evaluated in accordance with the rationality. In relation to other verdicts in which the central point was focused on the existence or not of a right, the Coughlan case shifted attention onto the substantial element of legitimate expectation, establishing the premises for the intrusion of the English judiciary into discretionality of administrative action. In reality English juridical thinking highlighted that probably if the Ministry had been able to give more convincing reasons in relation to public interest for the closure of the health centre, most probably the decision of the court of Appeal would have been different.229 These elements demonstrate however that also when an authority believes that a legitimate expectation exists, the protection of private interests is particularly complex, unless one can demonstrate an abuse of power that in turn would depend on a vast array of circumstances. The Bibi case230 illustrates the distinction that a public body can effectuate when the expectation is founded on political questions rather than on rights. The court of Appeal acknowledged the legitimate expectation of a homeless family that had obtained reassur227 North and East Devon Health Authority, ex p Coughlan [2001] QB 213; S. Schønberg, ‘Substantive Legitimate Expectations after Coughlan’, Public Law, 2000, 684. 228 On the topic Ibidem; S. Valaguzza, ‘Tutela dell’affidamento nel diritto nazionale e legittimate expectations nel Regno Unito: le rappresentazioni dell’Amministrazione e il principio della coerenza dell’azione amministrativa’, Riv. it. dir. pubbl. com., n. 5, 2010, 1288; Cane, 2011, 162-165. 229 Ivi, 162 et seq. 230 R (Bibj) v. Newham, LBC [2001] ECWA Civ 607.

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ances from the competent public office in relation to the assignment of a home, which was successively denied. On this occasion Lord Scheimann differentiated the legal position of the right to a home and legitimate expectation. In the first case the authority should have done nothing but assign the house to the claimants and courts should have ordered the same action. When instead the claim to obtain accommodation is nothing but a mere expectation, the authority must take into consideration the expectation generated in the citizen without excluding that it can however decide to deny such a request. Hence in these situations the authority can modify its choices by virtue of a new policy. This does not exclude the possibility that some form of economic compensation can be acknowledged to citizens as a result of their unsatisfied expectation.231 The Rowland case232 highlights how references of courts to the doctrine of legitimate expectation are mainly intensified when the administrative action appears unreasonable. In Rowland an English woman had challenged the measure of an environmental agency that had denied her the exclusive use of a tract of the River Thames. Her claim was founded on the conviction of being at that time the title-holder of a public law right to river navigation, by virtue of the fact that the navigation authority had granted such a concession to her family for circa 80 years. The English judiciary acknowledged the expectation generated by the behaviour of the public body and aligned it with the European principle. However it deemed the action conducted by the environmental agency to be reasonable, for having upheld public interest.233 Courts first and foremost carry out a test of reasonableness on the conduct of administrators234 and only when they are convinced of the existence of unreasonableness, they tend to reinforce their argumentations referring also to the principle of legitimate expectation.235 It is a circumstance that spurs public bodies to consider the legitimate expectation generated in citizens as an element to evaluate in accordance with the reasonableness236 and proportionality, without the principle being still able to express its own force that goes beyond the traditional Wednesbury test.237

231 R. Clayton, ‘Legitimate Expectations, Policy and The Principle of Consistency’, The Cambridge Law Journal, 2003, 93 et seq. 232 Rowland v. The Environmental Agency [2003] EWCA Civ 1885. 233 It follows in essence the need of a correct balance between private and public interests, on the theoretical approach of Lord Denning in Laker Airways (1977) Q.B. 643 a 707. 234 Bancoult v. Foreing Secretay (2008) UKHL 61 (60) recalls almost the same European standards for the analysis of formation elements of a legitimate expectation. 235 Cane, 2011, 162. 236 I. Steele, ‘Substantive Legitimate Expectations: Striking the Right Balance?’, Law Quarterly Review, n. 121, 2005, 300. 237 P. Daly, ‘A Pluralist Account of Deference and Legitimate Expectations’, in M. Groves & G. Weeks (cur.), Legitimate Expectations in the Common Law World, Hart Publishing, Oxford 2016. The author proposes a pluralist approach to the concept of legitimate expectation in order to overcome the contradictions that often characterise the rulings of the English judiciary.

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The dual soul of the principle led to the greater affirmation of the procedural idea which is nothing but the extension of the participatory model to cases in which there is a legitimate expectation.238 The addressee of the administrative action is granted the right to represent its own expectation, from which stems the duty for the authority to indicate the reasons that led to a decision different from the one expected. In rare cases instead, for the most part linked however to a behaviour ultra vires of a public body, the legitimate expectation assumes a greater substantial quality.239 One can note an interesting debate on the legitimate expectation doctrine in the urban planning and construction sectors. Here doctrine deemed that an evaluation of legitimate expectations of a substantial nature could lead to a disengagement from the restrictive review of the Wednesbury test. The United States mainly follows the British approach. The principle is used above all to amplify the value of the citizens’ participation and to strengthen the content of the motivation with a particular reference to adjudication proceedings. The Anglo-American experience is not marked by any particular application of the principle with regards to the withdrawal of adopted acts. In these countries there are no rules that support administrative action in proceedings of a second degree. The decisions undertaken are mainly considered final, a circumstance that is reiterated in the Statutes that normally do not allow a modification of the final act if it was adopted in correspondence to the power conferred to the authority. This approach derive by case law: it arises following a case that involved a private party that was damaged by a final decision, to then become a general criterion to be applied in all cases of the withdrawal of administrative acts. American juridical thinking generally acknowledges that a power of retroactive annulment does not exist when an administrative decision assumes a definitive nature, while it is possible that there are rules that allow the exercise of this power in an expressed or implicit manner. That is to say that the general rule does not permit a diffused power to withdraw administrative acts once they have been adopted. This possibility matures only in exceptional situations and in cases envisaged by law. Retroactive annulment instead was to be possible when the addressees had determined the adoption of an administrative decision in their favour by fraud or by inducing the authority to make an error. In such a case the decision could always be withdrawn. Another hypothesis for revocation regards cases in which a public body makes a clear error de facto.

6.4.8

Self-Restraint in Australia

In the common law tradition a fundamental difference between the Anglo-American experience and that of Australia exists. Starting from the Coughlan case, the Australian 238 Schønberg, 2000, 31. 239 Schmidt v. Secretary of State for Home Affairs, 1969.2 ch. 149 CA (civ. Div.).

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judiciary tried to slow down evolutionary effects of English jurisprudence that could have entailed the interference of courts in administrative power, traditionally considered inadmissible in Australia.240 Australian judges immediately distanced themselves from the jurisprudential orientation of Anglo-Saxon origin that was accused of pushing the function of judiciary beyond the boundary delineated by the separation of powers. In United Kingdom a court could evaluate the reasons that had induced the authority to decide in a manner that was contrary to that represented to a citizen. When they detected damages of existing rights courts could annul the administrative act due to abuse of power. The substantial approach to legitimate expectation was radically rejected by the Australian system.241 After all in this experience the estoppels had begun to be diffused only in recent times.242 The Theo case243 represents in Australia a summary of this approach that manifests however an ample application on the procedural side, albeit restrictive in relation to the content of the principle. Mr Lam, born in the republic of Vietnam, had arrived in Australia as refugee at the age of 13 and was in the possession of a permanent visa. In the course of his life he had however committed some serious crimes, among which that of heroin smuggling and was in prison. He was the father of two children that lived with guardians and not with their natural mother. Section 501 of the Migration Act of 1958 recognised the power of the Ministry of Immigration to withdraw the granted visa to a person if this person had not passed a behavioural test or if the result of the test had demonstrated the person had committed very serious crimes. Hence Mr Lam’s visa was withdrawn by virtue of his serious criminal record and therefore as a consequence he would have had to leave Australia. But he had his children in this country and they would have had to follow him to Vietnam. Thus he challenged the withdrawal of his visa, arguing, among other things that the authority had adopted its decision without completing its investigation with the depositions of his children, despite the fact that it had formally committed itself to do so with a previously sent notification. In other words Mr Lam complained that there had been a violation of the procedural aspect of legitimate expectation that had already been affirmed in previous cases.244 The authority sustained to have however evaluated the position and the interest of his children and the measure undertaken would not have

240 Steele, 2005, 300; M. Elliott, ‘Legitimate Expectations and the Search for Principle: Reflections on Abdi & Nadarajah’, Judicial Review, 2006, 281. 241 C. Stewart, ‘New Species of Abuse of Power?’, Federal Law Review, n. 28, 2000, 617; Idem, ‘The Doctrine of Substantive un fairness and the Review of Substantive Legitimate Expectations’, in M. Groves & H.P. Lee (cur.), Australian Administrative Law: Fundamentals, Principles and Doctrines, Cambridge University Press, Cambridge 2007, 280 et seq. 242 Cfr. Annetts v. McCann HCA 58, 1990. 243 Theo v. Secretary, Department of Families, Community Services and Indigenous Affairs [2007] FCAFC 72. 244 Cfr. Stead v. State Government Insurance Commission HCA 54, 1986; Re Refugee Review Tribunal; Ex parte Aala HCA 57, 2000.

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changed even if it had respected this investigation phase previously announced and not respected. At the bases of the decision assumed by the public body there was the reasonable conviction that the statements which would have been given by the children would not have influenced the position of the claimant or the argumentations presented by the Ministry of Immigration. The central authority, before deciding to withdraw the visa was in the possession of all the necessary information to analyse the fundamental aspects of the matter: i) a criminal record, ii) the nature and entity of the crimes committed, iii) the probability of recidivism and the interest of the minors, on the bases of the Convention of the Rights of a Child, ratified, but not yet formally acknowledged by Australian system. The Supreme Court in this case acknowledged the appeal arguing that the ratification by Australia of the International Convention of Rights of the Child originated already in itself a legitimate expectation. The Ministry should have honoured the promise made in order to be have been able to adequately take into consideration the higher interest of the children, before ordering the expulsion of their father. Teoh in essence is the most important case in which in Australia the judiciary based its decision on the legitimate expectation. In other cases in which it appeared within judicial rulings, the concept was utilised above all as a synonym of law245 or of the principle of the rule of law.246 The expectation generated in citizens by the behaviour of an authority assumed a procedural nature and corresponded to an element that reinforced the necessity of participation in investigation phases. The deference manifested by the Australian courts prevented the substantial aspect of the principle from being affirmed. Strongly criticised by the local juridical thinking, legitimate expectation was viewed as nothing but an aspect of the criteria of reasonableness and participation.

6.4.9

The Expansion in Spanish American Countries

In this geographical area one can note principles of morality, good faith and loyalty to which both the parties of administrative proceedings were obliged to adhere to. Social morality requires honesty, trust, justice, correctness, coherence, credibility, objectivity aids administrative action to act in a stable and predictable legal framework. In Latin America these elements are widely recalled in fundamental characteristics of the laws on procedures. In Columbia the principle is expressed in Article 83 of the Constitution and judirical

245 See Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; FAI Insurances Ltd v. Winneke (1982) 151 CLR 342; Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. 246 Salemi v. MacKellar, HCA, 32, 1977.

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thinking distinguished between good faith and legitimate trust.247 Both share the duty of loyalty, due to the fact that legitimate expectation would be unimaginable in the absence of reciprocal trust. However in this perspective good faith does not require that an authority must demonstrate itself to be coherent in its behaviour, an element that instead characterises the legitimate expectation.248 Rules allow the revocation of administrative acts, also those formed via the mechanism of tacit consent with the consensus of the holder of relative rights.249 The Council of State confirms the need for the reciprocity of the good faith;250 therefore, while it appears reluctant to admit the legitimacy of revocation acts that have a bearing on consolidated legal positions, it maintains the contrary tendency when the administrative act is obtained with illegal means, possible in this case also without the consensus of the addressee of the decision. One can note in this approach all the influence of the Spanish experience. In Brazilian system many previsions of the law n. 9784/99 connect to the legitimate expectation, such as: a) the ban on a retroactive interpretation of administrative rules,251 b) the necessity to give reasons for revocation or annulment acts, in relation to acquired rights,252 c) the maximum time limit of 5 years253 within which to annul measures that amplify rights,254 d) the possibility to validate acts that include defects that do not entail damage to public interests or third parties.255 The same principle can be found in Peru and in Venezuela, in Article 23 of its general law on administrative procedure which states that good faith constitutes a presumption in favour of citizens and the statements given in proceedings by interested parties are to be considered true, until proven otherwise. Based on the general law in Costa Rica, an authority must tend to validate relatively null acts by defect of form, content or competence.256 The Venezuelan law establishes, as a general rule, that a public body can validate

247 M.J. Viana Cleves, El principio de confianza legítima en el Derecho Administrativo colombiano, ed. Universidad Externado de Colombia, Bogotá, 2007, 44 e 45. 248 Araujo Oñate, 2011, 444; Colombia, Consejo de Estado, Sala de lo Contencioso Administrativo, Sección Cuarta, Sentencia 3 August 2006, Radicación número: 11001-03-27-000-2004-00077-00(14897), Consejera ponente: María Inés Ortiz Barbosa. 249 Art. 69 et seq. decree law 01 of 1984. 250 Colombia, Consejo de Estado, Sala de lo Contencioso Administrativo, Sección Segunda, Subsección A, 11 November 2009, Radicación número: 25000-23-25-000-2003-04242-01(1127-07), Consejero Ponente Gustavo Eduardo Gómez Aranguren. 251 Art. 2. 252 Art. 53. 253 In relation to the necessity to link the application of the principle with the elapsing of time, Perlingeiro, 2011, 345 et seq. is critical. In his opinion, the effect of the principle of legitimate should be formed regardless of the elapsing of time and analysed case by case. 254 Art. 54. 255 Art. 55. 256 Art. 187.2. ley 1978. Sobre et tema J.C. Morónurbina, ‘La revocación de actos administrativos, interés público y seguridad jurídica’, Derecho PUCP, Vol. 67, 2011, 419-455.

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Administrative Action and Procedures in Comparative Law in any moment irrevocable acts,257 as occurs in Brazil,258 Bolivia,259 Panama260 and Honduras.261 In Argentina, although it is not possible to observe the principle of legitimate expectation in rules on procedures but the institute found some form of application, albeit limited via the reference to the private law element of good faith.262 In this system however the lack of previsions that can orientate towards a respect of expectation is widely felt and frequently doctrine makes reference to the German experience and recalls the relative discipline.263

257 258 259 260 261 262

Art. 81 organic law Public Administration 2001. Art. 55 law 9784 of 1999. Art. 37.1 law 2341 of 2002. Art. 56 law 38 of 2000. Art. 126 Procedure administrative law del 1987. P.J.J. Coviello, La Protección de la Confianza del Administrado. Derecho Argentino y Derecho Comparado, Abeledo Perrot, Buenos Aires 2004, 33; L.E. ReyVázquez, ‘El principio de confianza legítima. Su posible gravitación en el derecho administrativo argentino’, AFDUC, n. 17, 2013, 259-282. 263 Durand, 2011, 306.

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7.1

The Times of the Administrative Action

Problematics related to establishing resolution times of procedures highlight divergences between civil law and common law. Regulations of administrative procedures in European Union countries, excluding the British case, prescribe pre-defined times for the adoption of final acts or confer a legal effect to the inertia or furthermore envisage mechanisms for the speeding up and simplification of administrative action.1 This approach can be traced back to the first procedural rules dictated in Spain since 1889, when a time limit of 1 year was established for the resolution of proceedings. The adoption of the measure should constitute the ordinary way for the conclusion of administrative action. The law adopted in 1889 regulated participation but had need specific ministerial regulations. Hence a differentiated discipline emerged, owing to the fact that each ministerial structure had its own rules on techniques and modalities for various procedural phases.2 Resolution times of procedures were different depending on the choices of the authorities. In order to rectify this possible malfunction successive rules established one unique time frame within which all procedures were to be resolved, regardless of internal rules adopted by ministries. These rules established different date of closing times depending on whether the proceedings had been activated ex officio or had been requested by one of parties. In the first case the time limit began with the date of the start of proceedings, in the second case, with the date in which it was registered by public body. Time limits could be suspended if there was the need for: a) integration of the documentation attached to the petition, b) intervention by an EU institution, c) acquisition of obligatory and decisive opinions, d) technical tests and cross-examination analysis or e) negotiation of the content with the addressees of the final measure.

1

2

G. Lombardi, ‘Il silenzio della Pubblica Amministrazione. Profili comparatistici e spunti problematici’, Dir. Soc., n. 1, 1983, 527-553; P. Gonod, ‘Le sense du silence de l’administration: bref aperçu de quelques solutions étrangères’, Rev. fr. dr. adm., n. 1, 2014, 43 et seq. Cfr. M. Fernández Salmerón & C. Cierco Seira, ‘Il silenzio amministrativo e i procedimenti di secondo grado nella legge spagnola n. 4 del 13 gennaio 1999, di modifica della legge n. 30 del 26 novembre 1992, de Régimen jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común’, Diritto Pubblico Comparato Europeo, n. 3, 2001, 1443; M. Gómez Puente, ‘El silencio y la inactividad de la Administración’, in T. Quintana López (cur.), Silencio administrativo. Estudio general y procedimiento sectoriales, Tirant lo Blanch, Valencia 2012, 49 et seq.

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The Spanish jurisdiction thus focused on the regulating of times of proceedings. The notification of the start was linked to the aim of speeding up administrative procedures.3 This notification had the function of making interested parties aware of the period for the adoption and the notification of the final measure, with indications of consequences should time limits not be respected. The rules focused particular attention on modalities with which proceedings could be defined, that could occur via renouncement, abandonment or via the maturation of a qualified silence, in the dual form of rejection or of consent to the petition.4 Law n. 4/99 made a clear distinction between negative silence and silent consent. It established that administrative inertia generally would have determined the acceptance of the petition, while the effect of rejection if envisaged by other rules. In the first case the elapsed time did not lead to the formation of a tacit measure of rejection but only a legal fiction that produced processual effects.5 The solution was particularly efficacious. The absence of a tacit measure permitted in fact an authority to exercise its power also subsequent to the expiry of the time limit. Hence an administrative action could conclude with the adoption of an autonomous measure, without the necessity of annulment proceedings and the revocation of a measure that had tacitly formed nor the need to give reasons of the new choices.6 This was what occurred in Italy with the application of the institute of negative silence. Tacit consent instead was considered in a different manner. It constituted a real tacit measure, with the consequence that whenever an authority wished to review the legal effects produced by the tacit acceptance, it would have to activate annulment proceedings. An administrative act subsequent to the tacit consent could only be affirmative to that which was tacitly approved.7 This approach, that tended to exclude the possibility that proceedings, once started, would not reach a conclusion or become embroiled in long settlement periods, was widely diffused comparative law.8 In most of Europe administrators have the duty to conclude 3

4 5 6

7 8

V. Aguado & I. Cudolà, ‘Silencio Y Procedimiento Administrativo en España’, in V. Parisio (cur.), Silenzio e procedimento amministrativo in Europa: una comparazione tra diverse esperienze, Giuffrè, Milano 2006, 51. L. Morell Ocaña, ‘La inactividad de la Administración: técnicas alternativas a la del silencio ante la omisión administrativa de los standards de conducta previstos por la Ley’, DA, 1986, 108. L.A. Parejo, ‘La nueva regulación del llamado silencio administrativo’, Documentación Administrativa, n. 254-255, 1999, 137; Fernàndez Salmerón & Cierco Seira, 2001, 1446. On this point, the approach of the previous law provisions is maintained: F. Delgado Piqueras, ‘Asimilación del silencio negativo a las notificationes defectuosos a efectos de los plazos procedimentales’, REDA, n. 62, 1989, 297 et seq.; Cfr. Anche R. Fernànadez-Valverde, ‘De nuevo, el silencio administrativo’, REDA, n. 105, 2000, 59 et seq. See Art. 43, comma 4, lett. a) of the general law on administrative procedure. A.L. Parejo, Lecciones de Derecho Administrativo, Esp. Tirant Lo Blanch, Valencia 2007, 428. A.R. Brewer Carías, Principios del Procedimiento Administrativo, Legis, Bogota 1990, 159 et seq. on the circulation of administrative silence in Spanish influenced countries.

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proceedings via the issuance of an expressed measure, be they activated ex officio or by a party. Normally a time limit for the closure is set, varies depending on the legal experience in question and is to be applied in the absence of special rules for individual proceedings. Sometimes within the final time limit only measures are adopted, in other cases, such as for example in the Spanish experience and in countries which had adopted similar rules, there is the need to notify the final decision also. On a wide scale there was the attempt to try to control the phenomenon of delays by attributing a direct responsibility to defaulting officials, that would have to account for the damage caused to interested parties or forms of direct compensation, as occurs in Italy. Many of legal experiences that followed this approach witnessed a notable theoretical elaboration in relation to the silence from which stemmed a rather articulated regulation of effects caused by non-compliance. In contrast in common law countries the problematics related to delays in administrative action have as yet to be sufficiently defined and are dealt with in a different way.

7.2

The Inertia as a Mere Fact

In the United States, England and in the common law tradition, particular theoretical indepth analyses on the importance of administrative inertia do not exist.9 Normally the absence of a specific resolution by an authority does not produce legal effects, due to it being a mere fact that could at most be detected under the profile of responsibilities for damage caused. The Anglo-American experience refused the idea that the problem of administrative inertia could be dealt with by a tacit approval or rejection of petitions. In this approach the inert behaviour of a public body was viewed from the different viewpoint of delay and the consequential legal effects. In a similar way to the majority of common law institutes, the problematics of silence were marked by case law10 via the traditional mechanism of writs, to which in the successive years were added numerous Statutes, above all in the United States. In England the inert behaviour of a public body was in essence comparable to a nonfulfilment of a duty by a citizen and was thus dealt with the same legal instruments: that is to say via compensation for damage caused by the delay or the lack of a measure.11 However with the passing of time and the growth of the administrative activity, compensation for damage did not appear sufficient to guarantee the interests of citizens. Hence a

9 10 11

M.A. Livermore & R.L. Revesz, ‘Regulatory Review, Capture, and Agency Inaction’, GEO. L.J., Vol. 101, 2013, 1337-1398. P.H.A. Lehner, ‘Judicial Review of Administrative Inaction’, Columbia Law Review, Vol. 83, 1983, 627 et seq. G. Anthony, ‘Administrative Silence – United Kingdom’, in Auby & Perroud (cur.), 2015, 701-714.

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solution of a public law began to develop via the mechanism of writs, to force a public body to adopt the pronounced decision. The procedural instrument was individuated in writs of mandamus utilised with the aim of forcing an authority to maintain a specific behaviour.12 The procedural institute required that the claimant demonstrated a sufficient interest in order to launch a judicial action aimed at obliging a public body to respect a duty.13 Over the years the English judiciary has manifested diverse tendencies, at times permitting and on other occasions rejecting writs of mandamus at its total discretion.14 The mechanism in fact entails notable differences in comparison to the procedural dynamics that characterise the institute of non-compliance with the measure in civil law countries. In this area action is aimed at obliging an authority to issue a ruling: that is to say to respond to the duty to act via the procedural mechanism that allows declaring illegitimate the silence preserved by an authority. Authority is then bound to complete the proceedings with an expressed act within a new time limit established by the administrative judge. A possible repeated inertia allows the sostitucion of the agent, via the nomination of an commissario ad acta. This substitution mechanism is not present in the English experience where normally an authority brings itself into line with the compliance order issued by the judiciary. In the successive evolution various Statutes regulated times and modes of administrative action and applied the institute of silent rejection to the failed adoption of an envisaged act. However English jurists has never analysed this legal effect in terms of a tacit measure that fulfils administrative power. This is a fact that separated the two legal families. In the Anglo-American system silence does not prevent an authority from issuing a ruling beyond the pre-established time limit even in its legal qualification of rejection. Nor does it prevent the interested party from continuing to act to oblige the public body to deal with his request. This approach affirmed itself in the United Kingdom and characterised all common law experiences. The English judiciary in fact has always manifested reluctance to issue writs against administrators that continued their inertia in the face of petitions by citizens, particularly in cases in which a favourable ruling would have led to financial effects. Possibilities to obtain this typology of measure in a judicial action were extremely slim, above all in consideration that the concession of remedies was however subordinate to discretional evaluations by courts.15 Writs of mandamus has never been the English equivalent to judicial actions that allowed citizens to utilise the coercive mechanism of substitution of the defaulting official in civil law countries. One can clearly note how the two legal traditions

12 13 14 15

G. Recchia, Consonanze e dissonanze nel diritto pubblico comparato, Cedam, Padova 2000, 170. J.A.G. Griffith & H. Street, The Principles of Administrative Law, Pitman House, London 1973, 233-235. R. v. Stratford-upon-Avon District Council, ex parte Jackson (1985) 1 WLR 1319 et seq.; R (M) v. The School Organisation Committee, Oxfordshire County Council (2001) EWHC admin 245. Cfr. Beatson et al., 2011, 475.

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differ in the manner in which they dealt with and still deal with problematics related to administrative inertia.

7.2.1

Characteristics of the English Experience

The English judiciary manifested the tendency to not replace a defaulting authority. Courts evaluated administrative inertia applying the transparency, legality and fairness via the balance between citizens’ interests and needs of authorities. The system to try to resolve malfunctions due to delays in administrative action was founded on fairness, that was progressively affirming itself as the main guiding principle. The case law highlights in essence the existence of three guidelines. The first element coincides for the most part with the duty to define administrative procedures via expressed measures. It is not however a generalised obligation, in the sense that an inert behaviour could be considered admissible if it is the consequence of a discretionary choice by a public body. Another principle is represented by the circumstance that authorities have to avoid unjustified delays in the execution of their functions, to the extent that a delay assumes an importance also in relation to the time limit in which to effectuate the hearing.16 In third place there is duty to give reasons for the choices adopted. Once again it was to be the strength of subjective legal positions that would constitute the main element of evaluation. In the Anufrijeva17 case the House of Lords declared that when an administrative action touched fundamental rights, the principles of common law entailed that an administrative unfavourable ruling had to be communicated to that person before its assumed a definitive nature. The adoption of a final measure constituted the natural presupposition for the subsequent notification. Thus, according to courts it was an element of natural justice due to the fact that its absence would prevent judicial action. It was an approach that did not allow a definable silence in terms of approval or rejection, except for some exceptions. This was due to the fact that it would be a lack of a measure that would constitute an important obstacle to justice. The principle however was applicable in a strict sense only in relation to cases in which fundamental rights were implicated, bolstered by pressures of the EU and international law.18 In cases in which an administrative action had a bearing on weaker legal positions, the English judiciary appeared more moderate and permitted an analysis on the times and delays of administrative action.19 However it is not possible to obtain a sufficiently precise

16 17 18 19

Cane, 2011, 95. Anufrijeva R v. Segretary of State for the Home Department [2004] 1 AC 604. R (Mambakasa) v. Segretary of State for the Home Department [2003] EWHC 319. Cane, 2011, 303 et seq.

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orientation in relation to the conclusion time limits of proceedings because English courts utilised the parameter of the unreasonableness of delays, that inevitably was different from case to case.20 Indeed, judges still tend to refer to the parameter expressed in the Wendsbury test; therefore only a delay that reaches such a limit that none would ever tolerate it, is deemed to be unreasonable. However this approach was limited to cases in which there was a claim for compensation for tort. From the normative viewpoint legislation is marked by very few cases in the British system in which the mechanism of the formal qualification of silence, is utilised.21 In reality problematics of delays in English experience are for the most part dealt with via a parliamentary Commissioner with a mandate to control and provide a stimulus for rectifying malfunctions.22 The model is also utilised in Sweden. This refers to typical powers conferred to Ombusmen widely diffused in EU countries. Complaints, that are dispensed via members of Parliament, can be made by any citizen that sustains that they have been subjected to an injustice as a consequence of the bad use of administrative power, within whose concept are included cases of negligence, inattention, delays, incompetence and inadequacy. In essence Ombusmen have the function of ensuring the respect of the right to good administration sanctioned by Article 41 of the Charter of Fundamental Rights of the European Union. Protection mechanisms are rather limited. The English Commissioner, just like Ombusmen in general, possesses significant investigative powers, but his action stops when political evaluations are at stake.23 The office does not intervene in cases in which citizens have another path to follow in order to resolve the problem of administrative inertia. In many cases in fact his action is blocked due to the fact that it could have been ultra vires if a different judicial path for the protection of same interests existed.24 The intervention, equivalent to that of courts, is thus strongly discretional. Furthermore there were frequent occasions in which interventions of the Commissioner and the English judiciary overlapped. However in cases in which the Commissioner decided to intervene, his authority rendered the action particularly incisive. An Ombusman in fact possesses the power to publish a report on malfunctions observed that functions as a stimulus for administrative action. Despite the clear absence of coercive powers, administrators fre-

20 21

22 23 24

R v. Home Secretary Phansopkar [1976] QB 606. Among the various cases, the most important are provided by the Town and Country Planning Act of 1971 on the question of the issuance of planning permission or authorizations for displaying advertising signs, or in relation to caravan parking, where the idea of tacit consent seems to affirm itself. On the topic, refer to the observations of Recchia, 2000, 184-185. In Northern Ireland, for example, Art. 33 of the Planning (Northern Ireland) Order 1991. A. Abraham, ‘The Ombudsman as Part of the UK Constitution: A Contested Role?’, Parliamentary Affairs, Vol. 61, n. 1, 2008, 206-215. Craig, 2012, 8-17. Cane, 2011, 377 et seq.

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quently follow the advice suggested by the Commissioner and act to compensate for damage due to delays.25 The British system thus manifests a tendency to overcome malfunctions caused by an excessive complexity of decision making via informal mechanisms of sharing of administrative action. This occurs above all at a local level and in sectors of safety, affordable social housing, environment, and in health and urbanistic sectors.26 The system is based on bodies, often informal, composed of local authorities, citizens and voluntary organisations that act outside the traditional procedural schemes but nevertheless always via ample forms of participation. In many sectors, both the tendency for centralism as well as the utilisation of the bureaucratic apparatus are set aside in favour of operative models that are more streamline and efficient.

7.2.2

Administrative Delay in the United States

A similar approach is to be found in the United States. Before the Administrative Procedure act and in the absence of specific Statutes, the writs of mandamus and injunctions were the main procedural instruments against administrative inertia.27 In the Administrative Procedure Act a delay in the exercise of administrative functions is regulated by section 555 that underlines the duty of an authority to issue the final measure and notify the interested parties of the non-approval of their request. There are no rules that establish a time limit within which a public body is bound to issue a measure and the relative problematic is dealt with the concept of reasonableness,28 sanctioned by section 706, n. 1. From a case law analysis it is not possible to find a precise indication on a period deemed to be an unreasonable delay due to the fact that this evaluation depends on: i) the type of action conducted by an authority, ii) the scale of the interests implicated, iii) the procedure followed, iv) the complexity of the evaluations requested, v) the structure and organisation of the agency, vi) numerous other factors, including the typology of the procedure, be it one of adjudication or that of rulemaking.29 The analysis of the reasonableness of a delay depends thus on the case in question and on the reasons given by the authority in relation to the time elapsed from the presentation of the request.30 Even in this ambit one can

25 26 27 28 29 30

Ivi, 379; Kirkham et al, ‘Putting the Ombudsman into Constitutional Context’ (2009) 62 Parl Aff 600. G. Marshall, ‘Maladministration’, Public Law, 1973, 32-44; Ferrari, 2006, 313; Craig, 2012, 212-214. S.H. Rogerson, ‘Waiting for Alvarado: How Administrative Delay Results in Disparate Outcomes for Immigrant Victims of Gender-Based Violence’, Wayne Law Review, Vol. 55, n. 4, 2009, 1811-1850. D. Autor et al., ‘Does Delay Cause Decay? The Effect of Administrative Decision Time on the Labor Force Participation and Earnings of Disability Applicants’, WP, Vol. 58, 2011, 1-43. Recchia, 2000, 178 who highlights the scant sensitivity manifested by the American judiciary about administrative inertia. Marchetti, 2005, 123.

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observe the tendency of courts to not invade the spaces and the decision times of the administrators.31 In the majority of the cases the passing of time is analysed by the American judiciary in terms of non-fulfilment and rarely does an effect similar to that which in civil law systems is defined as a rejection of the petition occur. But also in this case the question is examined from a different viewpoint. It assumes an importance when, due to the notable delay in the adoption of the measure, the interested party loses opportunities and the measure that was adopted late is no longer suitable to satisfy his interests. In essence the delay is equivalent to a sort of silent rejection but of importance for the purposes of compensating damage caused. In fact in no case does the American juridical thinking deal with the question of silence in terms of legal fiction, due to the fact that for the purposes of compensation the delay becomes important only when the previous conditions exist no longer and the measure is no useful.32 It is however in the absence of certain times for the definition of procedures, efficacious mechanisms to contrast administrative inactivity and long and drawn out investigations that the more attentive American juridical thinking sees today the necessity to reform the entire system.33 American doctrine has been insisting in recent years to review the APA, both to reduce the problem of the long times that characterise adjudication and rulemaking and furthermore in order to coordinate internal dispositions with the direct influence of international law.34 The United States of America does not possess efficacious judicial actions to contrast the diffused phenomenon of delays in administrative action. One has the sense that this circumstance is due to the unitary idea of administrative proceedings, enclosed within the model of interest representation. Delays in the granting of an authorisation for building work or the approval of an urbanistic tool or the long times for the issuance of an authorisation are not to be placed on the same level with the organisation of a general programme or rulemaking, due to the fact that the expectations, the complexity of the procedures and 31

32 33

34

In this sense, it was the indications stemming from the Supreme Court in the case Lewis v. Casey, 518 U.S. 343 (1996), in the case Mobil Oil Exploration & Producing Southeast Inc. v. United Distribution, 498 U.S. 211, (1991). On the topic, Marchetti, 2005, 121 et seq., who highlights how the lack of a complete and efficacious protection of citizens in the face of the delays in administrative action is also the fruit of the problems related to individuating a competent judge 123. D.R.H. Winters, ‘Intractable Delay and the Need to Amend the Petition Provisions of the FDCA’, Ind. L.J., Vol. 90, 2015, 1047-1089. M. Shapiro, ‘Administrative Law Unbounded: Reflections on Government and Governance’, Indiana Journal of Global Legal Studies, Vol. 8, n. 1, 2001, 369-377; Stewart, 2003, 437-451; J. Gersen, ‘Administrative Law Goes to Wall Street: The New Administrative Process’, Adm. Law Rev., Vol. 65, n. 3, 2013, 690; K. Datla & R. Revesz, ‘Deconstructing Independent Agencies (and Executive Agencies)’, Cornell Law Review, Vol. 98, 2013, 836. R.F. Housman, ‘Democratizing International Trade Decision Making’, Cornell Int’l L.J., Vol. 27, n. 3, 1994, 699-747; L.M. Wallach, ‘Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards’, U. KAN. L. REV., Vol. 50, 2002, 823-865.

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the scope of the discretionary power conferred to administrators, are all different. The unitary idea of the American procedure has not highlighted the problematics that derive from delays in the adoption of administrative acts, above all with regards to adjudication that directly involve interests of specific addressees. Here one can further note the tendency to favour alternative instruments for the definition of adjudication proceedings, outlined by the Administrative Resolution Act of 1990 that stimulated the recourse to binding informal arbitration, with the aim35 of offering an alternative and consensual route in comparison to the mechanisms outlined by the Administrative Procedure Act, excluding cases in which it was prohibited.

7.3

The Legal Effects of Silence. Rejection in the French Experience

Many countries opted for conferring a legal definition to the silence of a public body. Normally tacit consent corresponds to an administrative act, albeit of a tacit nature with the effect that an authority could only annul the effects of silence via a new revision procedure. Negative silence instead, in line with the French correspondent, constitutes a legal fiction with procedural effects that would allow interested parties to activate appeals for the defence of their rights or interests. It does not exempt an administrator from the duty to articulate an expressed ruling that concludes an administrative proceedings even when the interested party had already presented an appeal against the silent rejection. Silence intended as a rejection found in France its most complete elaboration, theoretically as well as from a normative point of view. Until the law 1900 the general institute of negative silence existed and tacit consent was not only non-regulated but constituted an exceptional hypothesis.36 French juridical thinking manifested for years its deep-rooted aversion to the tacit consent:37 indeed this fact emerges from the diachronic analysis of normative previsions. The first regulating of silence in the French system dates back to the decree of 2 November 1864 with which the mechanism of an implicit rejection was introduced at the end of a 4 month period. Negative silence was generated in the face of the inertia of the competent Ministry in relation to an appeal produced against an act adopted by a subordinate public body. The rule was confirmed by Article 3 of the law of 17 July 1900 when it was extended to a set of administrative decisions susceptible to being challenged in Conseil d’État. It was taken up again in the decree of 30 September 1953 in relation to acts contestable in administrative courts, in law 557 of 7 June 1956 and then in 35 36 37

Ferrari, 2006, 324. G. Benezra, ‘Le silence de l’administration. Vicissitudes de la règlementation française’, Rev. adm., 1967, 450 et seq. On the topic M. Pauti, ‘Les décisions administratives d’acceptation et la jurisprudence administrative’, Rev. dr. pub., 1975, 1525 et seq.; M. Monnier, Les décisions implicites d’acceptation de l’administration, L.G.D.J., Paris 1992.

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decree n. 29 of 11 January 1965, when it became a general principle applicable to all the acts of authorities. French jurists and courts reconstructed the problem of administrative inertia focusing above all on solutions that the legal system would have had to envisage for the protection of interested parties in proceedings that did not come to a conclusion.38 From this viewpoint the model preferred the negative silence in a similar manner to the Spanish experience, with the aim of permitting a judicial action. In the absence of an administrative act thus a legal fiction would be necessary to confer the characteristic of a measure to mere administrative inertia. France thus particularly focused on the institute of negative silence. First and foremost genetic elements of negative silence and of tacit consent were differentiated. In the case of a rejection the exact competence of public body does not assume a particular importance that is bound to send the petition of the citizen to the competent authority, even if incompetent. The time limit established for the closure of proceedings begins when the application is received by the authority. The French system does not pay particular attention to the circumstance in which an administrator has or not the concrete possibility to issue a final ruling in the assigned time limits, due to the fact that in the case of rejection no amplification of citizens’ legal positions are generated. When instead the inertia causes the acceptance of the petition the time limit for the formation of tacit consent does not begin to tick by in the case of a non-transmission to the competent authority39 that, unlike in the case of negative silence, must be able to adopt an expressed measure before the time limit of a tacit measure. The French system furthermore distinguishes the types of inertia also in relation to the completeness of the documentation presented by the applicant. In the case of delay linked to a negative silence the procedure in France can be suspended only once, pending the consignment of the requested documentation. In contrast in cases of tacit consent the entire time limit remains suspended and begins to count down only when the documents requested are presented to the public body. In essence in the cases of tacit consent a French authority must be able to benefit from the entire period permitted in order to prepare a case and deal with the dossier under examination.40

38

39 40

Chapus, 2001, 506; Cassia, 2009, 28 et seq. With the law of November 2013 the French system reduced the cases related to silent rejection and amplified the cases in which inertia determined the formation of a tacit consent. Conseil d’État, 20 July 2007 n. 27861, AJDA, 2007, 1943 et seq. On the topic, Cassia, 2009, 31. It is similar to the Italian approach. Case law on the topic is strengthened. Cfr. Cons. St., sez. V, 29 December 2009, n. 8831, T.A.R. Liguria, Genova, sez. I, 22 April 2011, n. 666, both www.giustizia-amministrativa.it.

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7.4

Administrative Inertia and Procedural Delay

Different Approaches in Spain and Italy

In the Spanish system the 1992 law on procedures established that administrative inertia in relation to a citizens’ request would constitute tacit approval. The negative silence was limited to cases of the exercise of the general right to petition, administrative appeals or cases in which the tacit approval would produce the effect of conferring to the citizen powers connected to the exercise of public functions and services. The two corollaries of the law were however, on the one hand the consideration of administrative inertia in terms of tacit approval41 and on the other hand the application of the institute only to proceedings activated on request by interested parties. In relation to the French approach the problem was thus overturned. The situation changed with the law n. 4/99 that shifted the focus onto the protection of citizens’ interests also in relation to proceedings activated ex-officio.42 The rules distinguished the cases in which proceedings started by the same authority ended up by limiting the legal position of the addressees from cases in which the contrary could produce favourable effects. In the first case the non-adoption of the expressed measure in the preestablished time limits would implicate the duty to declare the caducidad of the proceedings and consequentially the order to close the dossier.43 When instead the possibility that the final decision produced favourable effects to interested parties existed, the rules provided for negative silence to administrative inertia beyond the maximum time limit established for the notification of the final measure. This approach allows the interested party to be able to act against the authority that had caused damage to its interests via its non-fulfilment even in cases of proceedings activated ex officio.44 Thus the Spanish experience regulates the effects of administrative inertia focusing more on the interests of the addressees of the final measures.45 The Italian system utilises the institute of silence in various ways. In the first approaches administrative inertia was considered nothing more than a refusal to perform functions without any legal effect.46 Via the extensive interpretation of the rules of the unique text on the public sector, the administrative judiciary constructed a procedure for the formation 41 42 43 44

45 46

Lopez Menudo, 1992, 37-50. See now Art. 24 of n. 39 of 1 October 2015. Fernàndez Salmerón, 2001, 1149; Santamaría Pastor, 2009, 94-97. Now Art. 25 of law n. 39 of 1 October 2015. On the point Cfr. R. Caballero Sànchez, ‘Nacimiento y evolución del institudo de la caducídad en el Derecho Administrativo’, Revista Vasca de Administracion Publica, n. 55, 1999, 9 et seq.; Santamaría Pastor, 2005, 7-56. E. Gamero Casado, ‘La simplificación del procedimiento administrativo: Better Regulation, Better Administration’, REDA, 2013, 160. A.M. Sandulli, ‘Sul regime attuale del silenzio-inadempimento della pubblica amministrazione’, Riv. dir. proc., 1977, 169 et seq.; Idem, ‘Il silenzio della pubblica amministrazione. Aspetti sostanziali e processuali’, Dir. Soc., n. 4, 1982, 715 et seq.; B.E. Tonoletti, ‘Silenzio della pubblica amministrazione’, Dig. Disc. Pubbl., Vol. XIV, Utet, Torino 1999, 156 et seq.

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of negative silence with the aim of permitting challenging inertia in an administrative court.47 Some specific rules sometimes conferred to silence the effect of the rejection of the petition, on other occasions its approval. Thus in Italy three different typologies of silence were affirmed, in the form of non-fulfilment, rejection or consent, to which different judicial actions corresponded.48 The law n. 241 of 1990 prescribed the mechanism of the notification of the start of activities with which the silence of an authority consolidated an already existing legal position. There was a successive evolution via the institute of the segnalazione certificata di inizio attività introduced with the law of 30 July 2010, n. 122. Over the years the cases in which silence could constitute only a non-fulfilment were reduced. In a first instance procedural remedy was reinforced via rules that allowed an administrative judge the declaration of the illegitimacy of negative silence also in cases of not discretional activity.49 In addition the rules of 1990 regulated the institute of tacit consent for proceedings activated by petition from a citizen with an ambit circumscribed by the presidential decree 300/1992. Mechanisms were introduced for administrative simplification via procedural silence50 in the issuance of opinions, under the form of silenzio devolutivo51 or in the ambit of rules related to the conference of services.52 For years however the relationship between the duty to act and the effects of administrative inertia, was not sufficiently clear. The generalised duty to conclude proceedings with an expressed act devoid of limits would have obliged an authority to act upon every request, with the evident overburdening of administrators.53 Courts interpreted the rules in a restrictive sense54 and circumscribed the duty to respond55 to only a few cases. The duty to act exists thus when dealing with not 47

48

49 50 51 52 53 54 55

Cons. Stato, Ad. Plen. 10 marzo 1978, n. 10, in Giust. Civ., n. 2, 1978, 269. On the jurisprudential origins of silence Cfr. R. Montagna, ‘Il silenzio della pubblica amministrazione’, in Il Consiglio di Stato – studi in occasione del centenario, Roma 1932, II, 361 et seq. E. Quadri, ‘Art. 117. Ricorsi avverso il silenzio’, in R. Garofoli & G. Ferrari (cur.), Codice del processo amministrativo, Neldiritto, Roma 2012, 1773; M. Ramajoli, ‘Forme e limiti della tutela giurisdizionale contro il silenzio inadempimento’, Dir. proc. amm., n. 5, 2014, 709-745. Cfr. T.A.R. Lazio-Roma, sez. I, 17 February 2010, n. 2304 e T.A.R. Campania-Napoli, sez. IV, 2 March 2010, n. 1244. Art. 17 bis law n. 241/90. Art. 17 law n. 241/1990. Arts. 14 et seq. law n. 241/1990. A. Police, ‘Il dovere di concludere il procedimento e il silenzio inadempimento’, in Sandulli, 2011, 66. Cfr. T.A.R. Sicilia-Palermo, Sez. II, 2 april 2008, n. 436; Cons. Stato, Sez. V, 22 november 1991. For example in cases of re-examination requests regarding an act that has become incontrovertible due to the expiry of the time limit of forfeiture (cfr. Cons. Stato, Sez. V, 27 March 2000, n. 1765 e Sez. VI, 27 January 1999, n. 69; T.A.R. Campania-Napoli, Sez. III, 23 November 2001, n. 5014), where significant changes of the situation de facto e de jure have not arisen (cfr. Cass. civ., Sez. un., 20 January 1969, n. 128; Cons. Stato, Sez. V, 18 January 1995, n. 89); extension request ultra partes of the lawsuit (cfr. Cons. Stato, Sez. VI, 21 Febrary 2007, n. 921 e 3 September 2001, n. 4592); of a petition manifestly unfounded (cfr. Cons. Stato, Sez. IV, 20 November 2000, n. 6181; Sez. V, 3 August 1993, n. 838 e 7 May 1994, n. 418); T.A.R. CampaniaNapoli, Sez. III, 10 April 2002, n. 1969) or manifestlyabsurd (cfr. Cons. Stato, Sez. IV, 28 November 1994,

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abnormal petitions and the needs of substantial justice impose the adoption of an expressed measure.56 This approach changed and complicated itself with the emanation of law n. 80/2005 that conferred to administrative inertia the generalised effect of the approval of the petition with a vast array of exceptions.57 Law n. 124 of 2015 further expanded the cases of tacit consent in proceedings to sectors that had been previously been excluded.

7.5

The Complexity of the Tacit Consent

In essence both the hypothesis of tacit consent and the more known negative silence cannot be considered systems of procedural acceleration or simplification. The European Union viewed the tacit consent as being the instrument more suited to resolving malfunctions connected to administrative inertia above all in the ambit of authorisations.58 Consequently member States were bound to adopt the relative directive, which however proved to be difficult to implement59 above all in those countries, such as France, that had developed a legal tradition that was rather hostile to the generalised application of the tacit consent. The institute affirmed itself in Spain, Italy, Germany and is expanding in the area of central Europe.60 It is present in Latin America too. The analysis of some experiences highlights however that the mechanism functions badly if viewed in terms of simplification and acceleration of administrative procedures, for various reasons. Wherever the system of the tacit acceptance was envisaged, it constantly manifests same problems connected to the difficulty to: i) guarantee the protection of third parties interests against a tacit measure, ii) respect the duty to give reasons, iii) remove its effects via proceedings of a second grade. The institute furthermore is difficult to apply above all when it needs taking into consideration aspects of public law.61

56 57 58

59 60

61

n. 950) or lastly in the presence of an illegal request, not being able to give rise to the protection of illegitimate interests. Cons. Stato Sez. VI, 11 May 2007, n. 2318; T.A.R Calabria-Catanzaro, Sez. I, 4 June 2010, n. 1051. R. Giovagnoli, ‘DIA e silenzio-assenso dopo la legge 80/2005’, Urb. App., n. 9, 2005, 1001 et seq. This relates to Art. 13 of Directive 2006/123/CE of the European Parliament and of the Council, of 12 December 2006, in relation to the services of the internal market, in G.U.U.E. L376/68 of 27 December 2006, emanated with the intent of accelerating and unifying procedures for the issuance of authorisations. On the topic, De Graaf & Hoogstra, 2013, 7-34; Gonod, 2014, 43 et seq. J.A. Razquin Lizarraga, ‘El impacto de la Directiva de Servicios en el procedimiento administrativo: autorización, declaración responsable y comunicación’, Revista Jurídica de Navarra, n. 49, 2010, 85 et seq.; V. Aguado & I. Cudolà, ‘Libertad de establecimiento de los prestadores de servicios: autorización, declaración responsable, comunicación previa y silencio positivo’, in V. Aguado & B. Noguera (cur.), El impacto de la Directiva servicios en las administraciones públicas: aspectos generales y sectoriales, Atelier, Barcelona 2012, 67-90. De Graaf & Hoogstra, 2013, 7-34; Gonod, 2014, 43 et seq. Lastly, Conseil d’État, 17 Dicember 2008, n. 290494. In Italy, obstructive conditions occur when there are complex procedures characterised by a high level of discretionality Corte cost., 27 July 1995, n. 408, in Giur.cost. 1995, 3427.

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Administrative Action and Procedures in Comparative Law In the case of tacit consent various legal positions can materialise.62 Normally the rules do not exclude from the ambit of application measures for which an authority has a discretionary power. Tacit consent can develop however also in cases in which a public body must carry out many evaluations.63 This circumstance opens up a wide range of applicative ambits that are different among themselves. By nature the institute demonstrates its greatest capacity for expansion when the discipline does not require discretionary powers and the authority is bound only to verify that the claimant is in possession of the requirements. In these cases the authority cannot even issue prescriptions to regulate or condition the exercise of the activity that it should accept. Administrative action is limited to the mere control of the requirements of the law and tacit consent constitutes an efficacious measure of simplification and overcomes all the malfunctions connected to omission or delays in the adoption of the expressed measures, once the investigation has terminated. Another situation occurs instead when administrators are bound to exercise a discretionary power and yet another in cases in which this power allows the possibility to prescribe particular conditions and limitations to the exercise of the private activity. In these last two cases the application of the institute is constantly problematic. The comparative analysis highlights that where these differentiations are not placed in sufficient light, tacit consent does not produce the desired effects of simplification. The Court of Justice deems that tacit consent is not admissible in complex proceedings in which there is the necessity of an expressed administrative evaluation in order to guarantee the effectivity of the protected interest.64 From this approach stems however a problem: both with regards to EU law, as well as internal laws, it is unclear what interests are excluded from the scope of tacit consent, due to the fact that there is a tendency to interpret in an extensive way the envisaged exceptions. Furthermore having dealt with the problem in terms of the intensity and importance of a public interest makes it difficult to comprehend a priori whether one is faced with an applicative case of tacit consent or not.65 Its application requires that an authority could always carry out the envisaged investigation and that in essence the tacit measure must intervene only in the instance in which the administrative action should only end with the final decision, having completed all evaluations connected to the ongoing proceedings.66 In Italy and in Spain tacit consent substitutes the measure due to the fact that it is the public body that simply lets the necessary time elapse once it has nothing else to do than issue the final act. In the end this approach leaves the authority the discretional choice as to whether to adopt or not an expressed act. 62 63 64 65 66

Sustains that the obligation to act is to be modulated depending on the cases G. Bergonzini, ‘Silenzio – assenso ed effetti della domanda dell’interessato: riflessioni critiche’, Dir. proc. amm., n. 1, 2013, 49 et seq. Opposes this hypothesis Morbidelli, 1993, 1142. Court of Justice, 28 February 1991, case C-360/87, Riv. it. dir. pubbl. com., 1992, 241. On legal uncertainty that characterises the institute Cfr. Cons. St., sez. IV, 7 March 2013, n. 1406. Cfr. Bergonzini, 2013, 43 e 46 according to which the omitted investigation would not entail the invalidity of the tacit consent.

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In France tacit consent as a general criterion of the definition of administrative inertia is a recent implementation but it inserts itself into a cultural context that for years had been hostile to the idea. The effects of this tradition can be felt immediately.67 Beyond the declarations of principle the new rules do not apply to authorities that are entrusted with the management of public services of an industrial or commercial nature. Equally problematic is the exclusion of the institute to agents in their relationships with authorities of the State, with centralised or decentralised services, public administrative bodies, services of a national competence and independent administrative authorities.68 In the new rules the applicative cases do not clearly emerge nor do the cases of exemption that can be extended via the interpretation of the parameter of motives of good administration. These are aspects of extreme importance that inevitably condition the applicability of the new principle, which in contrast should function as a mechanism of simplification.69 French juridical thinking highlighted that tacit consent has by tradition a different aim in relation to other European countries: that is to say that of inducing an authority to issue an expressed deliberation in the period of time pre-established for the tacit consent.70 The time limit constitutes in reality the maximum time span within which to adopt the administrative act. It is a fact confirmed by the state administration, according to which the new regulations reinforce the concept of the duty to conclude proceedings activated by the petition of a party with a deliberation expressed and in the time limit envisaged for the formation of a tacit act.71 This circumstance induced French doctrine to express its preoccupation that tacit consent could in reality entail effects that were totally different to the logic of simplification for which it was envisaged. The fear was in essence that administrators could emit acts of tacit denial when they were not able to complete the necessary investigation in the time limit envisaged for the formation of tacit consent.72 In such a way they would block the issuance of a tacit measure, then successively revoke the expressed denial and emit a deliberation of acceptance once the evaluation of the interest at stake is defined. The institute, designed as a model of simplification, thus could slow down administrative action also in relation to cases in which authority could easily issue the requested measure. 67 68

69 70

71 72

Cfr. B. Seiller, ‘Le silence de l’administration’, Rev. fr. dr. adm., 2014, 35 et seq. See Circular of 12 March 2015 of the Ministry of decentralisation and public function, relative à l’application des exceptions au principe silence vaut acceptation danslesa relations entre les agents et les autorités administrative des l’Ètat, in circulaire.legifrance.gouv.fr. H. Pauliat, ‘Le silence gardé par l’administration vaut acceptation: un principe en trompe-l’oeil?’, JCP adm., n. 38, 2013, 737 et seq. Conseil d’État, L’application du nouveau principe «silence de l’administration vaut acceptation», La documentation française, Paris 2014, 140; B. Sellier, ‘Quand les exceptions infirment (heureusement) la règle: le sens du silence l’administration’, Rev. fr. dr. adm., n. 1, 2014, 35 et seq. Cfr. Circular of the Prime Minister of 12 November 2014 n. 5749/SG, that encourages administrators to conclude procedures with an expressed measure and in the shortest time possible. Seiller, 2014, 40.

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This is an example of the forced implementation of an EU directive that does not coincide with an internal legal tradition and that could cause effects that are totally different to the logic that underpins it. In the Italian system tacit consent has led to various contrasts and numerous applicative problems. Before the modification of Article 20 of law 241 for years there was much discussion on the legal qualification of this typology of silence that for some represented only a legal fiction, yet for others constituted a real tacit measure. The consequences related to the two different ways of intending it were however important above all in terms of proceedings of a second degree and protection of expectations. A widespread orientation had deemed that tacit consent even if it could be annulled with a successive expressed act, in reality would not have always been identifiable with an administrative decision in the traditional sense. According to a part of courts’ decisions the lapsing of the time envisaged for the closure of the proceedings would not have exhausted the power of the authority.73 This circumstance determined a climate of notable distrust towards the institute due to the fact that since the conformation of tacitly authorised activity would always be possible even after the maturation of tacit consent. Despite having obtained a deliberation albeit tacit a private business man could however be subject to a successive resolution by the public body that could envisage new obligations and conditions despite the fact that his commercial activity had been legitimately launched.74 Redimensioned by a vast array of exceptions, applicative cases of tacit consent in Italy are by no means clear. It is interpreted in an extensive way by courts75 and clearly contradicts the principle that administrative inertia should produce the effect of the acceptance of the petition. The institute in Italy is applied very little and it is not infrequent that one must wait for the final outcome of a judicial action in order to know whether one is dealing with a case of a tacitly consented measure or not, regardless of the existence of elements for the

73

74

75

A recent orientation of an administrative judge sustains that if a public body expresses its opinion after the legal effect of silence, in whatever manner it is qualified, it would never be possible that the measure successively adopted must be considered as an decision without effects, due to the fact that it would mean legitimising a behaviour that would violate the obligation to provide for and act. Cfr. Cons. St., sez. V, 11 September 2013, n. 4507, www.giustizia-amministrativa.it. For the reconstruction of the debate, refer to Caringella, 2005, 1423 et seq. This condition registers today a greater clarity by virtue of the recent formulations of Art. 20 and 21 nonies that identify the same cases of annulment and revocation both for expressed measures as well as in relation to those tacitly formed. The problems are particularly important in Spain especially in the city planning sector. On the question, cfr. A.C. Nettel Barrera, ‘El silencio positivo contra legem en el Derecho urbanístico, punto crítico de encuentro entre los principios de legalidad, seguridad y confianza legittima’, Revista de Derecho Urbanistico y Medio Ambiente, n. 248, 2009, 151 et seq.; J.R. Fernàndez Torres, ‘La operatividad del silencio administrativo en materia de planeamiento y de licencias en la última jurisprudenzia’, Revista Aranzadi de Urbanismo y Edicicación, n. 21, 2010, 275 et seq. Above all when bans steeming from the EU system are involved or there is the need to respect constitutional principles T.A.R. Toscana, 29 November 2011, n. 144.

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legitimate formation of silence.76 Instead the mechanisms of simplification of the segnalazione certificata di inizio attività are far more efficacious. The rules expressly exclude the problems connected to silence. It can be applied to requests in which: a) acceptance depends exclusively on the verification of requirements and presuppositions requested by the law or by general administrative acts or b) no limit or specific instruments of sectorial programming are envisaged.77 If an authority intends to establish conditions or prohibit activity it must communicate its decisions to the citizen who submitted the case within a time limit. This model manifests a greater diffusion in comparison to the tacit consent due to the fact that it combines the needs to protect public interest with citizens’ expectations with a particular efficacy. Compared with Italy in France the tacit consent is more problematic. Indeed there were circulars and decrees that tried to define applicative cases of the institute. In order to aid an understanding of the mechanism of simplification the 2013 law prescribed that the list of procedures in which the tacit consent was permitted should be published on websites.78 Furthermore the accusé de reception tends to clarify the applicability of the tacit consent in a concrete sense, due to the fact that this receipt assumes also the function of verifying the completeness of the documentation.

7.6

Administrative Procedures for Tacit Acts in Latin America

In the evident wake of the Spanish approach, an analysis of Latin American countries highlights how they widely acknowledged the system of conferring a legal effect to the administrative inertia, both in the form of tacit consent and that of silent rejection.79 In Venezuela the law dated 19 January 1982 considered the elapsing of the maximum time limit for the closure of proceedings to be silent rejection in cases of administrative appeals or petitions with the aim of giving to interested parties the possibility to submit a judicial appeal.80 In Costa Rica the inertia holds a particular importance. Here a jurisprudential debate on the legal qualification of silence developed in a similar way to other jurisdictions,

76 77 78 79

80

M. Occhiena & F. Saitta, ‘Il silenzio significativo come misura di semplificazione dell’attività edilizia: dubbi e prospettive’, Giustamm.it, 2010. Art. 19 law n. 241/90. Cfr. Circular of the Prime Minister of the 12 November 2014 n. 5749/SG, circulaire. legifrance.gouv.fr. In Argentina cfr. T. Hutchinson, ‘La caducidad en el procedimiento administrativo’, RAP, n. 9, 1979, 12 et seq.; Halperin, 1980, 27; Idem, ‘Los plazos en el procedimiento administrativo’, in G. Santiago Tawil (cur.), Procedimiento administrativo, Abeledo-Perrot, Buenos Aires 2009, 253-265. In Bolivia M. Yanez-Pagans & C.G. Machicado, ‘Bureaucratic Delay, Local-Level Monitoring, and Delivery of Small Infrastructure Projects: Evidence from a Field Experiment in Bolivia’, IZA Discussion Paper, n. 6687, 2012, 1-32. Véase A. Rodríguez García, ‘El silencio administrativo como garantía de los administratos y los actos administrativos tàcitos o presuntos’, in A.R. Brewer Carías, La relación juridico-administrativa y el procedimiento administrativo, Fundación Estudios de derecho administrativo, Caracas 1998, 205 et seq.

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that oscillated between the opinions of those that regarded silence in terms of a presumed administrative act81 and others that saw it as a mechanism of a procedural nature that gave the interested parties the possibility to appeal.82 Silence as a general rule entails denial of the petition. The time limit is 3 months. In the Columbian legal system, after 6 months from the presentation of the request the inertia produces a silent rejection.83 Currently the predominant approach is in line with corresponding European models. Tacit consent represents a sort of tacit manifestation of the will of the authority. Instead a different nature is conferred to silent rejection that is not interpreted as being an act of tacit denial but rather a mere procedural solution, so much so that various authors attribute to silent rejection the same effects of a non-existent act.84 Due to the fact that the formation of administrative acts is realised via the notification of the deliberation, silent rejection occurs also in cases in which the act is not notified although it has been adopted within the final deadline. The rules reconnect the same legal effect both to the inexistence of an act as well as to its non-notification to the interested party even after its formation. Obviously intended in this way, the passing of the maximum time limit would not determine the loss of decisional power by the authority that on the contrary is still bound to complete the procedure for the formation of the act. The experience of Latin America however is worth highlighting for its focus on the elaboration of detailed rules for the formation of tacit consent. In Columbia tacit consent is a tacitly formed favourable act that prevents a public body from having the possibility to adopt a further act once the maximum time limit for the adoption and notification of the decision has elapsed.85 The approach is that of the Spanish system. The cases of tacit consent are however pre-established by law:86 among those of major interest, in addition to the traditional regulation of urbanistic concessions, it is worth noting the application of the institute in the sector of local public services for any citizens’ petition. The rules favour the users of public services and this is a situation somewhat rare in comparative law.

81 82 83

84 85 86

Consejo de Estado, seccion Primera, n. 5887, 11 May 2000. Consejo de Estado, secion Segunda, n. 9351, 9 February 1996. Art. 40 decree 01/1984 and Art. 83 law n. 1437/2011. Highlights the malfunctions of the institute. J.C. Garzón Martínez, La Crisis del Silencio Administrativo Negativo, Doctrina y Ley, Bogotá 2008, 20. In whose opinion, tacit denial constitutes a guarantee for the administrated and not for the public body. J.E. Ibañez Najar, Estudios de Derecho Constitucional y Administrativo, Legis, Bogotá 2007, 821-822. J.O. Santofimio, Acto administrativo. Procedimiento, eficacia y validez, Universidad Externado de Colombia, Bogotá 1994, 190. Art. 158 of law n. 142 of 1994, replaced by Art. 123 of decree n. 2150 of 1995, regulates a case of tacit consent that matures following the non-ruling of the managers of local public services in the face of a request by a citizen. Another important case is constituted by the procedure for the issuance of planning permission that is intended as being accepted in the event of a non-ruling by the local authority in the time limit of 45 days, in accordance with Art. 34 of Decree n. 1469 of 2010.

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In order to be formed in a valid way the petition has to be precise, circumscribed, concrete and sufficiently documented. Once the deadline for the issuance and the notification of the requested decision elapsed, there is the necessity that the interested party declares that: i) the authority was in default, ii) the petition was in a complete form, iii) the administrator did not provide it within the deadline. Tacit consent is formed when an authority does not take a decision if has the possibility. In turn a public body that receives a notification of default by an interested party can certify that it did not adopt the measure in the time requested and that as a result tacit consent had been given. Additionally interested parties have another possibility: they can go to a notary who via a public act can attest the same conditions of the previous hypothesis. The authority would lose the power to act and would not be able to adopt an act contrary to that which favourably formed by effect of the legal qualification of silence. Obviously in the Columbia system silence cannot validly be formed if the request is contrary to the law or in cases in which it is produced via unlawful behaviour, contrary to public or social interest or if it would produce an unjustified burden to a third party. However it is a tacit decision that presents the same difficulties and risks of uncertainty that typically afflicts tacit consent. It is worth noting the regulation of the formative procedure of silence that in other legal experiences is more or less delegated to courts’ decisions. Similarly to the French case in Costa Rica tacit consent is formed only if the petition by the citizen reaches the authority that is actually competent in emitting the requested decision.87 In this system the qualification of a tacit decision is realised in addition to the cases described in detail by specific previsions when the petitions tend to obtain permits, licences and authorisations.88 The general system allows the tacit consent in cases in which the right already pre-exists and the public body is bound to verify the possession of requirements for the exercise of the right,89 precisely as occurs in cases of authorisations in Italy. In fact Spanish juridical thinking also interprets the authorising mechanism in terms of the removal of obstacles placed in the public interest from the exercise of a preexisting right. The institute of tacit consent is not widely considered applicable in urbanistic and environmental matters. In some sectors tacit consent is also of procedural type and gives the possibility, as in the Italian system, to continue proceedings when the authority called into question to form the subordinate act within the pre-established deadline failed to do so.90

87 88 89

90

Art. 7 law n. 8220/2002 de Protección del ciudadano del exceso de requisitos y trámites administrativos. Art. 329 Ley General de la Administración Pública n. 6227/1978. Cfr. N.G. Olarte, ‘Aspectos prácticos del silencio administrativo positivo contemplado en la ley 142 de 1994’, Revista de Derecho, n. 22, 2004, 1-27; F.C. Martinez, ‘El silencio administrativo’, Revista Justicia, 2008, 4756. Art. 330 Ley General de la Administración Pública n. 6227/1978.

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In Mexico silent rejection is favoured, while the Chilean system manifests a greater opening towards the institute of tacit consent to which on the Spanish model it confers the same effects of the resolution expressed. In this experience administrative inertia is considered a refusal in fiscal matters, proceedings activated ex officio, cases in which the public body must pronounce itself on appeals or revisions of administrative acts.91 In Brazil the institute of silence finds its application in the version of rejection or consent in sectorial laws. The situation changes depending on the constitutional approach of each country.92

7.7

Applicative Problems in Central-Eastern Europe and Evolutionary Tendencies

The rules on tacit consent highlight a common fact that drastically conditions its applicability: it does not constitute the result of an in-depth evaluation on contents of administrative discretionality. The applicative ambit of the institute is instead modulated taking into consideration or: a) the entire matter, b) the complexity in proceedings, c) the subject of the application or d) compatibility with EU law, that is to say all the elements devoid of certain requisites and constantly interpretable. Thus the institute of tacit consent is not able to efficaciously function as a mechanism of simplification, except in cases where there is no discretionary power or the finished investigation is completed and the authority has only to emit the final decision. Recent experiences of Central-Eastern Europe confirm all the difficulties of the reception of this system of simplification. In Macedonia the general regime of tacit consent was regulated93 with the innovations incorporated in 2008 and 2011. However this entailed the need to modify over 130 laws. The biggest complications in the elaborations of the institute were in the Albanese experience. The model followed is similar to the Italian one with silence that can be qualified as a mere non-fulfilment, and in the two different forms of consent and rejection. Before the 2015 reform tacit consent was regulated by Article 76 of law 8485 of 12 May 1999. Successively Article 77 regulated cases of rejection. The drafting of the rules and undoubtedly the absence of a complete theoretical elaboration of the problematics connected to the two institutes, led to the formulation of two distinct articles that regulated the same case of administrative inertia, attributing two effects completely 91

92

93

A similar approach can be found also in the Peruvian system. On the topic, compare with L.A. Huamán Ordoñez, Los silencios administrativos. Régimen jurídico general, Editorial Nomos & Thesis, Lima-Perú 2010, 97-98. C. Brandão, ‘O controle das omissões e do silêncio da Administração Pública’, in F. Medina Osório (cur.), Direito administrativo: estudos em homenagem a Diogo de Figueiredo Moreira Neto, Lumen Juris, Rio de Janeiro 2006. B. Davitkovski & A. Pavlovska-Daneva, Realizing Citizens’ Rights through the Administrative Procedure and Administrative Dispute in the Republic of Macedonia, HrvatskaJavnaUprava, n. 1, 2009, 125-140; Sever et al., 2014, 249 et seq.

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contrasting, making it impossible to understand if one was dealing with one case or the other. This induced local jurists to express themself in terms of legislative aberration, in the hermeneutical analysis of the two rules.94 Likewise case law had avoided dealing with the relative problematics.95 In recent years both Italy and France show the tendency to further stimulate the adoption of expressed acts in certain times96 via the direct attribution of administrative, disciplinary and accounting responsibility or the exercise of substitutive powers.97 A different horizon begins to appear with regards to the way of relating to the violation of the duty to provide services, closer to solutions adopted in common law experiences. In these latter there is the preference to oblige an authority to adopt the final decision or compensate for damage caused by its administrative inertia98 rather than conferring a legal qualification to the mere passing of time. Thus different solutions to attempt to eliminate administrative malfunctions were sought and hypothesised. The Italian system was marked by the introduction of various mechanisms of consensual participation in administrative action, among which the main forms were constituted by procedural and regulatory agreements. Authorities and citizens could define in a consensual manner the content of the final decision in the application of the private law. Whenever specific rules permitted it the final decision could be entirely substituted by an agreement stipulated between a citizen and the public body. The application of these institutes however has proved to be problematic mainly because of the absence of a discipline on public law contract existing in Germany. This tendency is also present in Spain, where similar instruments in the form of acuerdos, pactos, conventions or contratos can be stipulated between administrators and citizens,99 in some occasions regulated by public law and in others by private law. Similar to that which occurs in the Italian system the content of these agreements can be reported in the final decision or totally substitute it. In fact the Spanish system also permits voluntary agreements greatly utilised for environmental protection and usually drawn up between authorities and companies for the reduction of polluting agents produced by industrial

94 95 96 97

98 99

Cfr. E. Çani, ‘Administrative Silence: Omission of Public Administration to React as an Administrative Decision-taking’, in Studime Juridike (Juridical Studies), n. 4, 2014, 151-173. Civil College of the Supreme Court, 31001-00480-00-2013, No. of the Main Register 00-2013-972, Decision (195), Tirana, on 19 March 2013. Cfr. Cassia, 2009, 34. On these topics lastly M. Deguergue, ‘Le silence de l’Administration en droit administratif français’, Les Cahiers de droit, Vol. 56, n. 3-4, 2015, 389-410. Cfr. Arts. 2 and 2 b of law n. 241/1990. The lack of respect of the time limits for the conclusion of proceedings constitutes a sufficient element for establishing unfair damage, with the consequential obligation of compensation. Cfr. Cons. St., sez. V, 28 February 2011, n. 1271; T.A.R. Abruzzo, L’Aquila, sez. I, 10 November 2012, n. 768; T.A.R. Lazio, Roma, sez. I, 18 September 2012, n. 7840, www.giustizia-amministrativa.it. A. Vacca, ‘Risarcimento del danno e violazione del dovere di provvedere, ai sensi dell’art. 2, law n. 241 del 1990: prime considerazioni’, Foro amm. Tar, n. 2, 2006, 480-503. Art. 88 law n. 30/1992.

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activity. Normally the convenios de colaboración are regulated both at a state level as well as by the autonomous communities.100 In France consensual activity is stimulated by administrative contracts, the délégation des services public, marchés publics101 and contrats de partenariat102 that can be added to the typical contrats de plan related to the urban government. In Germany participatory mechanisms were never looked upon as a potential obstacle to the efficacy and efficiency of administrative action. Instead in this experience there are various institutes aimed at accelerating the closure of proceedings. It is sufficient to think of the importance of the obligation of authority to notify interested parties of the necessity to complete the consigned documentation should it prove to be lacking in fundamental acts for the decision.103 The rules on the Sternverfahren104 are also to be seen in the light of the need for simplification and acceleration of proceedings. It is a procedural model similar to the Italian investigation conference in which the contemporary manifestation of one’s own resolutions by all the competent authorities, is requested. Authorities utilise this model of simplification when dealing with an investigation aimed at the issuance of an authorisation and only in cases in which they do not have to emanate their own administrative act to conclude an autonomous proceeding.105 The model is utilised to allow administrators interested in proceedings to submit their own observations and resolutions in a unique context. In the event in which public bodies do not execute their function, administrative action can nevertheless continue in the absence of the requested resolutions. Participation by interested authorities is substantially written and a moment for confronting ideas is not envisaged. The effect of simplification is thus reinforced by the loss of power by administrator if it is not exercised within the established deadline. Cases in which the period granted is not congruous or when the authority protect important public interests are exceptions. The Autragskonferenz instead is an oral discussion that takes place between the petitioner and the various public bodies. It is similar to the investigation conference in force in Italy. In comparison to the Italian model however one immediate difference emerges in relation to the content of the regulation of the two institutes. In Italy the conference of services had already been regulated in detail, in the initial set-up of law n. 241/90 and has been the subject of continual and repeated legislative modifications, aimed at organising a discipline that was increasingly meticulous and detailed. The corresponding German model was

100 G. Rando, ‘Semplificazione amministrativa e partecipazione: l’esperienza spagnola’, Diritto Pubblico Comparato Europeo, n. 1, 2006, 359. 101 Decree n. 15 del 7 January 2004. 102 Ordonnance n. 559 del 17 June 2004. 103 Art. 25 Procedure law, Germany. 104 Galetta, 2000, 110. 105 Kopp & Ramsauer, 2013, 1378.

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inspired by the principle of informality.106 In the German experience the normative envisages that the conference is to be requested by the interested private party. But there are no specific rules regarding the convocation due to the fact that doctrine includes also other public administrators or private stakeholders among the subjects that could summon the conference. Instead the possibility of summoning more meetings, hearing out experts, and carrying out inspections, is regulated as well as some forms of publication of meeting minutes. But the majority of functions are carried out in an informal manner. In relation to formal proceedings and in particular to those of urbanistic planning, German experience is marked by the adoption of main instruments of administrative simplification. The mechanism utilised to avoid that the non-issuance of an opinion or permission requested could entail procedural arrest is, as in Italy, represented by the institute of tacit consent. With the passing of the maximum 3 month period envisaged for the adoption of the decision requested, the authority loses its power to decide and the administrative action can continue even in the absence of the decision. The only exception is represented by the necessity to protect important public interests.

106 Galetta, 2000, 113; V. Losco, ‘Consenso e semplificazione nell’azione amministrativa: l’ordinamento tedesco’, Diritto Pubblico Comparato Europeo 2006, n. 1, 329-349.

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8.1

Classification Elements

The diachronic reconstruction highlights the existence of two models of administrative action when observing the phenomenon from the main angle of observation: the equilibrium sought between the respect for subjective legal positions and the definition of public interest. The studies on the right of access, on the one hand and on transparency, on the other show that the relationship between secrecy and the new tendencies towards openness is in continuous evolution. Mechanisms to enable participation in turn state the existence of different systems by which the balance between citizens’ right to a defence and the speed of administrative action, are sought. It ranges from a narrow model to more flexible forms and to the recent expansion of the open investigation model. There are different ways of considering rationality, fairness, proportionality, duty to give reasons and the legal effect conferred upon the inertia of public bodies. In reality it is from the combination of the diverse modalities with which the problems related to participation in proceedings were dealt with that emerges the fundamental aspect to meet classification requirements. The duty to give reasons changes according to the comparative assessment made between the contributions of private parties and the contents of the final measure which in turn varies according to the narrow procedural model. The intensity of the investigation affects the content of the motivations and the analysis of the rationality of the administrative action. Its expansion is mainly linked to the degree of incidence of administrative acts on subjective legal positions and varies according to the strength that rights and expectations have in each jurisdiction. Rationality, in its various conceptual shapes, forms the basis of this relationship. In the Anglo-American experience procedural mechanisms are more flexible than those traditionally belonging to the civil law family. It also changes the evaluation criterion. In the United Kingdom fairness is the main conceptual point of reference, while the United States performs the balancing test which mainly concerns the relationship between costs and benefits. American agencies choose the intensity of the investigation and expand participation according to the comparative analysis between the time of the proceedings and costs. This kind of flexibility exists in common law, due to the lesser tendency to regulate procedural phases. However this distinction does not seem useful to configure a separate model but somewhat represents a variable.

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When investigation regards general acts or normative content the relevance of principles changes and a dissimilar model is formed. Transparency expands, participation is widespread and generalised and reasonableness and the duty to give reasons have a different role. The relationship between administrative action and proceedings is different and there are different theoretical problems. Although their genesis and subsequent development can be attributed to specific countries, the reciprocal influences and pressure exerted by international law do not allow any model to be considered as an exclusive prerogative of specific legal experiences. In the United States the right to transparency was formed on the reserved access model at the time of adoption of the Administrative Procedure Act and only subsequently transformed itself into the open government model already adopted about two centuries earlier in Sweden. Transparency is expanding into countries that opted for the reserved access model but it is instead in regression in the legal experiences in which it affirmed itself. In America the balancing test is often not performed when authorities do not have discretionary power, just as in countries where participation is not allowed in activities devoid of such a power. Even in the Anglo-American experience there are cases where participation is omitted if it is considered useless and the expansion of principles remains problematic when the protection of legal positions concerns administrative action in economic and social matters. The wide-ranging participation permitted in the United States in relation to rulemaking is diminishing, while other experiences, such as Spain, are manifesting a tendency to expand participation in rulemaking.

8.2

The Narrow Investigation Model

In this model private party access is usually restricted to the comments and documentation provided by the addressees of the final decision. The acquisition of data remains limited to the analysis of facts and circumstances that are directly related to the protection of legal positions that might be affected by the administrative action. The right of access stems from an individual petition with the indication of the reasons, even though this setting is progressively moving towards a less formal model. Participation in proceedings has been mainly based on the need to ensure that the addressees of the administrative measure could protect their specific interests. This defensive model emerges from the genesis of participation in sanctioning, expropriating and disciplinary proceedings, that is to say in relation to typical administrative measures that have a strong impact on subjective legal positions. Some jurisdictions turned their attention to the phases of a criminal trial to identify types of proceedings to which such guarantees apply. The US experience shows the greatest tendency to expand processual

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rules to formal proceedings as well. In other countries the relationship between a fair procedure and a trial is more flexible. In this model the concept of defence can assume different connotations and could also be understood in the sense of providing the completeness of the investigative activity in one’s own favour. In cases in which an administrative action has a positive effect on recipients’ interests, the need to participate in proceedings is the same. In those cases the decision to expand the investigation is discretional depending on the completeness of the data found by authorities and changes in each jurisdiction. When participation concerns the necessity to acquire as many elements of knowledge as possible for the public interest, there is the necessity that citizens affirm their different positions. Under this profile there is a similar evolution in comparative law, due to the role of Conventions, the rulings of courts on human rights and the force of subjective legal positions. The investigation is carried out by the authority which takes care of all the aspects and unilaterally provides the content of the decision to be taken. Participation, even when it is provided as a general principle, may be waivered and in many cases its violation does not involve the illegality of the final measure. In France this principle is not of general application and administrators can avoid this procedural stage if they are not obliged to provide reasons. Participation in this country is absent in cases of acts favourable to the recipient or in cases in which authorities have no discretionary power, as in Germany and Spain. It has been seen that in the German experience the administrative measure may be issued irrespective of hearing the interested party in all cases of a non-discretionary administrative function or where, at the discretion of the authority, it is deemed that the private party will not make a significant contribution to the administrative action. In this approach participation is essentially guaranteed to the main addressees of the final measure, when the public body has for the most part directed the administrative action towards a given end. The underlying set up is that of the classic inquisitorial procedure in which the authority prepares and unilaterally determines the content of the administrative action and private party collaboration is mostly identified as defensive rather than partaking to the public interest. Participation thus assumes the characteristic of a defence instrument of the interests directly harmed by the activated procedure. Duty to give reasons in the final measure is usually limited to the motivation for which a citizen’s defence was not accepted. In general in this model the guarantees provided by participation in proceedings and the duty to give reasons are not applied in cases of administrative activity devoid of discretionality and when the discretionary power has a technical nature. A different configuration is found instead in the Anglo-American experience, where this analysis is carried out with a more attentive focus on rights protection.

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8.2.1

Characteristics and Distinctive Traits in the Civil Law Tradition

In the civil law experiences the model is heavily influenced by three elements: i) the possible irrelevance of legal flaws in proceedings, ii) the convalidation of acts and iii) the possibility of a motivation issued after the final decision. This approach is very strong in Germany and in recent times has spread to other countries.1 For many years in Italy the concept of legitimate interest represented the main obstacle to the idea that a procedural error could not have any importance in relation to the invalidity of the final decision if the remedial action of the error did not originate any consequence on a substantial level. The legal position of legitimate interest was qualified as a pretext of the formal legality of an administrative action: an indirect protection for the benefit of life via the right to the legitimacy of administrative acts and procedures. Any legal defect of the procedure, even that of no evident practical importance, in the Italian experience constituted an element that could induce an administrative judge to annul the challenged act, obliging thus an administration to always respect its duties of preventive communication. The annulment of an administrative measure due to legal flaws constituted thus the means of protection of a benefit of life. It is clear that in this set-up, at least in the initial phases, there was no space for the analysis of the importance of a flaw in the law and the generalised duty to communicate the start of proceedings became diffused. A posthumous motivation and the institution of annulment registered no particular success. This phenomenon instead had less resonance in France because the administrative judicial control was thought of in objective terms and an administrative judge analyses the legal relationship and not exclusively the legitimacy of the challenged act.2 German juridical thinking instead differentiated effects of formal flaws from those considered substantial.3 On this distinction it conferred relevance only to those procedural defects that could have led to a different administrative act4 if they had not existed. The violation of many of procedural sequences have not legal effects if the authority adopts the decision that it would have in any case emitted. In the German approach a sanatorium of invalid acts is possible up until the conclusion of the lawsuit.5 1 2 3 4 5

The case law of the Court of Justice is not uniform. On the topic Gasparri, 2007, 790-794. Ivi, 738 et seq. Stelkens et al., 2014, §46, 10 et seq.; F. Ossenbühl, ‘Verwaltungsverfahren zwischen Verwaltungsefficienz und Rechtsschutzauftrang’, NVwZ 1982, 465-472. Approach shared by case law. Cfr. BVerwG, in BVerwGE, 1956, 230 et seq. A reconstruction of the doctrinal opinions is in Galetta, 2000, 76 et seq. The temporal extension up to the final decision of the administrative trial constitutes a modification introduced in 1996. The initial version of the German law posed, as a temporal limit for the sanatorium, the moment of the proposition of judicial appeal. The extension, in reality, faced strong opposition. On the topic Cfr. K. Redeker, ‘Neue Experimente mit der VwGO?’, NVwZ 1996, 524; P. Stelkens, ‘Verwaltungsgerichtbarkeit im Umbruch-Eine Reform ohne Ende?’, NVwZ 1995, 330.

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In essence the general law permits that a petition necessary for the issuance of a measure or the decision of a commission or the co-participation of another public body in the procedure, can be emitted even subsequent to the adoption of the final measure. It is evident that in Germany no particular relevance was given to formal defects which would not have been translated into a substantial change in the administrative action. A permission, an opinion and the same motivation may be issued up until the judgment. In the cases in which the hearing of interested parties was missed their successive participation eliminates the procedural flaws and the act can no longer be annulled for that reason. Although this provisions do not exonerate officials from respecting rules on the participation,6 there is no doubt that the principle assumes a different extent to that which was initially stated in Italy. In this country the administrative judge, in the aftermath of the general law on administrative procedure, had adopted a rather formalistic approach of the legal previsions on participation.7 Administrative courts annulled acts adopted in violation of the duty to communicate the start of procedures in a manner independent from its concrete effect on the final measure. In fact in many cases, in the first years of application of law n. 241/90 administrative judges also annulled acts adopted in execution of a public power without discretionality if there had been no communication of the start of proceedings. In the following years however this formalistic approach was abandoned with the reform of law n. 241. The annullament was only possible when the authority could demonstrate that the administrative action would have had a different content if there had been the private contribution.8 Basing on the 2011-525 Law of 17 May 2011 French courts begun to consider irrelevant the procedural defects which would have no effect on the content of the measure.9 The legitimacy of an administrative act thus is not given by the compliance to every legal previsions about administrative action because the final act is however considered legitimate if it corresponds to the legitimate substantial content. However in every exercise of discretionary power it is rather difficult to sustain a priori that citizens’ participation would not have had a bearing in any way on the final decision. The reduction of the possibility of this contribution contrasts with the idea of the right to

6 7

8

9

U. Stelkens, ‘Der Eigenwert des Verfahrens im Verwaltungsrecht’, D V Bl., 2010, 1078-1086. Cfr. M. D’Alberti, ‘La “visione” e la “voce”: le garanzie di partecipazione ai procedimenti amministrativi’, Riv. trim. dir. pubbl., 2000, 1 et seq.; Cassese, 2002, 27-40; D. Sorace, ‘Il principio di legalità ed i vizi formali dell’atto amministrativo’, Dir. pubbl. 2007, 406. For a reconstruction of case law refer to A. Cardone, ‘Procedimento amministrativo e partecipazione. Giurisprudenza amministrativa e costituzionale e concezioni dell’idea di giustizia’, Dir. pubbl., n. 1/2009, 231-276. Conseil D’État (ass) 23 december 2011, Denthony, n. 335033 Conseil d’État, 3 june 2013, Commune de NoisyLe-Grand, n. 345174.

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Administrative Action and Procedures in Comparative Law good administration that was universally affirming itself.10 This is evident when participation in proceedings allows extending the depth of the judicial control that is supported by further evidence, testimonies and observations introduced in the administrative proceedings. Normally cases of not discretionary administrative action were excluded from these hypotheses. However sometimes it is always necessary to ascertain facts and technical elements via an investigation that would require a cross-examination phase,11 as occurs in civil law proceedings where evaluations and measurements are conducted via a third party technical consultant with the assistance and participation of the consultants of involved parties. Countries that follow this approach pose problems that are less important in AngloAmerican experience, due to the widespread tendency to ensure compliance with procedural safeguards by observing subjective legal positions rather than the discretionary power granted to authorities.

8.2.2

The Flexible Intensity in Common Law

In the Anglo-American variable there is usually a different type of analysis about the importance of participation on the validity of the final measure. The effect of the breach of procedures is not related to its content nor to the incidence of the missing collaboration. The strength of subjective legal positions in procedural phases is most important than the content of final measure by direct effect both of the transparency system and of the importance conferred on rights and interests. The investigation is based on the criterion of adequacy of the protection of citizens’ interests. Courts evaluate whether the violation of procedural guarantees has led to a reduction in the defence mechanisms. The convalidation and posthumous motivation are difficult to apply. Suffice it to think that in the United Kingdom fairness and ultra vires doctrine are a clear obstacle to the possibility of remedying procedural mistakes after the adoption of the administrative act. In the United States the law followed a substantialist approach and allows the overcoming of procedural guarantees in the presence of conditions that renders the formal respect of dispositions devoid of effects.12 This is the case in which administrative action is founded

10

11

12

In order to avoid these dysfunctions, it was suggested the institution of specific judicial action for the compliance with procedural guarantees. Cfr. Y. Aguila, ‘Le traitement contentieux des vices de procédure en droit administratif française’, in Auby & Perroud, 2016, 878-880. Consiglio di Stato, sez. VI, 4 august 2009, n. 4899. On this point however courts’ decisions are not compliant. Contra Consiglio di Stato, sez. IV, 4 june 2013, n. 3072. Cfr. S. Cognetti, Quantità e qualità della partecipazione. Tutela procedimentale e legittimazione processuale, Giuffrè, Milano 2000, 128 et seq. W. Van Alstyne, ‘Cracks in the New Property Adjudicative Due Process in the Administrative State’, Cornell L. Rev., Vol. 62, 1977, 445-487; Pierce, 2002, 9.

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exclusively on mere mathematical calculations or on technical data and in the classic cases of emergencies.13 These are hypotheses however where it is quite obvious the irrelevance of the participation. In the Anglo-American experience the model has less uniformity. In United States the balance between the duty to secure the constitutional precepts of the due process of law and the streamlining requirements of administrative action is sought on a case by case basis, with the constant application of the balancing test, rather than relying on rigid regulatory frameworks. Thus the obligation to notify the start of proceedings and the forms of participation are not general and diffused precepts of the administrative action but duties which must be evaluated by the authority whose choices may then be challenged in judicial review. Compared with the formalist approach of other countries the type of procedures under which private participation is required by law is therefore less defined. The situation is not even homogeneous by virtue of specific Statutory Instruments. There are cases in which large contradictory forms are allowed. Sometimes in addition to hearing private parties and submitting documents and observations, one can add witness, cross-examination, inspection and any form of information acquisition. In other cases only auditions in the oral form are allowed. In this variable guiding the choices of administrators on which type of procedure to apply is the balancing test between the benefits that the party receives from the respect of the due process of law and the costs to be sustained to guarantee the application of the constitutional guarantees. Procedural rights are modulated at the discretion of administrators through an analysis that takes into account the public interests and the relevance of the subjective legal positions in the constitutional system. Once the importance of the interests involved has been verified, the assessment moves onto the risks and the likelihood that the breach of procedural safeguards could lead to a judicial statement of unlawfulness and the relative advantages resulting from the use of the correct procedure. In the United Kingdom the absence of general rules on the procedure and the use of the fairness allowed the differentiated application of procedural rules to be assessed case by case. The reference to natural justice and the effects of the Human Rights Act led the UK judiciary to pay particular attention to the protection of citizens’ rights and interests. Participatory rules are modulated depending on the effects of the action. The relationship between the intensity of the investigation and the modalities of participation is flexible and straightforward above all by the rationality with the widespread application of fairness. Compared to the United States however Anglo-Saxon experience was not equally influenced by the principle of due process of law and the organisational structure of executive power. Although the flexibility is similar in both experiences in the United Kingdom 13

Marchetti, 2005, 80.

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the principles was more careful in safeguarding subjective legal positions in proceedings than respecting the procedural phases.14

8.3

The Open Investigation Model

In this model the broad participation conditions the final content of the rules and even laws but nevertheless presents additional and different problematic aspects. In cases where participation is permitted also in the phases of the drawing up of general acts, authorities are obliged to evaluate as many interests as possible. In this system citizens take part in decision making process with a mechanism that reproduces the democratic method within the administrative proceedings, where the dialogue between the majority and the minority does not usually exist. In rulemaking the lack of the direct participation of the holders of the interests involved as well as the debate between the different political components and allows public bodies to choose which interests to safeguard.15 The principle of impartiality finds its application via the direct participation of citizens. The participation could never be considered irrelevant, as is the case in the first model, because it is an integral part of the decision making16. Participation is not linked to the demonstration of a specific interest and transparency is maximum. The American Administrative Procedure Act tends to guarantee respect of the democratic principle and the widest gathering of information also in rulemaking. The model shows a particular form of circulation in Japan17 and in some Latin American experiences but has found a greater affirmation above all with regards to general administrative acts rather than with regards to rulemaking. In France, Germany, Spain and the United Kingdom some institutions allow mass participation in general administrative acts with a particular bearing in environmental matters under the pressure of the Aarhus Convention and Community legislation. In Italy participation is excluded for normative and general acts with the exception of specific law provisions.18 In this country participation

14 15 16 17

18

Cfr. capitolo IV, para. 3. Schmidt-Aβmann, 1991, 371 et seq. Stewart, 1975, 1669-1815; Arena, 1976, 279 et seq.; Comba, 1992, 269 et seq.; Ferrari, 1993, 421 et seq. L. Kodderitzsch, ‘Japan’s New Administrative Procedure Law: Reasons for its Enactment and Likely Implications’ Law in Japan, Vol. 24, 1991, 105-114; N. Kadomatsu, ‘The Right to be Informed – the Obligation for Providing Information: The Case of Japanese Information Disclosure Law’, Hoseikenkyu or Journal of Law and Politics, Vol. 69, 2002, 265-288. Law No. 241 prohibits widespread participation and hence the model of open inquiry, in proceedings for the adoption of legislative acts or of general administrative acts, planning, programming and taxation proceedings.

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in rulemaking is mostly carried out through the consultation of representative bodies but is limited to political action.19 The model is applied through two modes, one formal and the other informal. In the formal version the procedure is described in detail in its phases, as in many cases relating to the regulatory functions of independent administrative authorities, environmental proceedings, planning or general administrative acts. The informal version is applied when there are not legislative constraints and in various areas of administrative action governed by international agreements. It happens in procedures for determining health standards, in certain areas subject to regulation, financial markets, food security or air transport. In many of these areas there are no regulating on procedures and authorities are required to conduct technical, scientific, regulatory, social and economic investigations, in which participation is open to other authorities, representations, citizens. Even for such procedures transparency is high and the duty to give reasons is reduced. Administrative action must be logical, rational, without evaluation errors, but the motivation does not have to provide all the reasons for which the authority has opted for a specific choice. In recent times the model is expanding also in main European legal experiences, as the recent reforms in France and Spain in 2015 show. It is spreading beyond environmental planning procedures and competences of independent administrative authorities.

8.3.1

Distinctive Profiles

It is a different procedural model for two reasons: i) theoretical and applicative problems are unlike to the narrow investigation model and ii) the diachronic analysis offers them separately. In reality divergences between the two models are far from being easy to identify from a theoretical point of view. In some set-ups, among which the Italian system, the dividing line coincided mainly with the diversification between regulating and acting, where only with the second type of activity there is the specific attention to citizens’ interests. Based on this set up the secondary legal sources, starting from the governmental regulations, have been always placed in the ambit of normative procedures, studied by constitutional law with repercussions in administrative law.20 It has however always been a topic on the border. It is sufficient to take into consideration the major problem of recognising the 19 20

Recently with Directive n. 2 of the President of the Council of Ministers of 31 May 2017 have been published some guidelines for public consultation, in G.U. n. 163 del 14 July 2017. U. Allegretti, ‘Democrazia partecipativa: un contributo alla democratizzazione della democrazia’, in Idem (cur.), Democrazia partecipativa: esperienze e prospettive in Italia e in Europa, Firenze University Press, Firenze 2010, 13 et seq.; G. Pizzanelli, La partecipazione dei privati alle decisioni pubbliche, Giuffrè, Milano 2010, 169 et seq.

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nature of general and or normative act through the requirement of abstractness. In the Italian experience the principle derived from law 241 is a narrow investigation model. As in Germany the open investigation in rulemaking does not exist. The year 2015 marks important innovations in Spain in relation to the participation in rulemaking that includes phases of the hearing of interested parties before the final approval of the definitive text.21 The new rules allow the interested parties to contribute in rulemaking. The same approach is to be found in Portugal following the new code on administrative procedure.22 However the judicial control on rulemaking is much more rigorous in the United States than in various European experiences. In this legal tradition the distinction between acting and regulating is not clear nor is it between administrative function and executive function. An authority on the Anglo-Saxon model is bound to decide after having evaluated as many interests as possible in proceedings. More in line with this set up is the possibility itself that courts can also review both the fairness of the procedure followed as well as the discretionary evaluations that led to the final choice. In the European approach instead, if one excludes the British experience, the public body exercises a function from which stems the attribution of a puissance publique. It tends to reduce the judicial control on the exercise of power, that remains more penetrating in cases of direct damage to subjective legal positions by individual administrative measures and not when the administrative action is aimed at adopting general acts. German courts evaluate also fairness under the profile of the reasonableness of general and administrative acts but the content of their investigation does not linger on the strict respect of procedural guarantees. In United States instead judicial review is more attentive in verifying that the various procedural phases are followed, thanks to which a public authority reaches a summary that will constitute thus the content of the final measure. In this country the respect of the form of the proceedings is in itself an expression of the direct application of the constitutional precept of the Fifth Amendment. The element of participation can never be considered irrelevant, as is the case in the other model described, due to the fact that it is an integral part of the process of the forming the administrative will. In comparative law hence the diversity of approaches appears above all in relation to the typology of public functions for which administrators are bound to expand the inquiry up to the point of acquiring all the interests concerned in the proceedings. The debate is normally focused on the concept of participatory democracy that however is still not sufficiently definitive at a theoretical level nor have the numerous applicative problems been resolved.23 The models that allow participation also in rulemaking raise some problems 21 22 23

Art. 133 law n. 39, 1 October 2015. Art. 97 et seq. D. Lgs. n. 4, 7 January 2015. L. Blomgren Bingham et al., ‘The New Governance: Practices and Processes for Stakeholder and Citizen Participation in the Work of Government’, Public Administration Review, Vol. 65, n. 5, 2005, 547-558; Y.

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above all due to the resulting extension of the investigation. When an authority is bound to guarantee the representation of interests, the action must try to carry out the investigation in the most complete way as possible and to evaluate the impact that the ongoing proceedings can cause on the numerous and divergent interests that are involved. Once activated and set on a specific direction, the activity however ends up deviating towards a different solution from that which had been originally planned, due to the data collected. Citizens’ contribution could in fact induce the authority to extend its investigation also to sectors not imagined at the start of proceedings. For some jurisdictions it would be preferable to avoid such a circumstance, in others it constitutes no problem. The most tenacious opponents of the participatory democracy highlight the risks that the rules are influenced by those citizens who strongly feel their social role,24 signifying therefore that only a small number of participants would assert their own ideas. Others sustain that proceedings would be reduced to mere forms, as occurs in the experiences of public inquiries in France.25 Sometimes the participation mechanisms are singled out as the primary causes of the slowing down of administrative action and frequently one tends to think that they do not permit administrators to respect directives issued by the political top brass.26 Diverse hypotheses sustain that they cause conflicts between the community and its own representatives or between groups that pursue divergent interests27 or that they constitute tools at the service of only organised groups that are able to convince their representatives to provide individual contributions to the proceedings.28 There are those who see the frustration of citizens in these institutes that would be induced to privilege public administrators as their principle political interlocutors.29 There are those however who see in participatory democracies an element of modernity that resolves many of the

24

25 26 27 28 29

Jégouzo, ‘De la “participation du public” à la “démocratie participative”?’, AJDA, n. 42, 2006, 2314-2315; D. Friedrich, ‘Policy Process, Governance and Democracy in the EU: The Case of the Open Method of Coordination on Social Inclusion in Germany’, Policy & Politics, Vol. 34, n. 2, 2006, 367-383; Allegretti, 2010, 18. Y. Jégouzo, ‘Principe et idéologie de la participation’, in AA.VV., Pour un droit commun de l’environnement: Mélanges enl’honneur de Michel Prieur, Dalloz, Paris 2007, 577-587; C. Blatrix, ‘La démocratie participative en représentation’, Sociétés Contemporaines, n. 74, 2009, 97-119; J. Bétaille, ‘La contribution du droit aux effets de la participation du public: de la prise en considération des résultats de la participation’, Rev. jur. de l’Environnement, n. 2, 2010, 197-217; A. Yetano et al., ‘What Is Driving the Increasing Presence of Citizen Participation Initiatives?’, Environment and Planning C, n. 28, 2010, 783-802. J.-B. Auby, ‘Droit administratif et démocratie’, Dr. adm., n. 2, 2006, 6-10. A. Magnaghi, ‘Dalla partecipazione all’autogoverno della comunità locale: verso il federalismo municipale solidale’, Democrazia e diritto, n. 3, 2006, 143. R. A. Irvin, J. Stansbury, ‘Citizen Participation in Decision Making: Is It Worth the Effort? ’, Public Administration Review, n. 64, Jan/Feb 2004, 58-63. M. Legendre, Elaboration de l’acte reglementaire et partecipation du citoyen. Étude des droits française et américans, Colombia University, New York 2010-2011, 57-58. G. Gourgues et al., ‘Gouvernementalité et participation’, Rev. participations, n. 6, 2013, 12; J. Arrighi de Casanova & S. Formery, ‘Une nouvelle étape de l’amélioration des relations entre l’Administration et les citoyens: la loi “DCRA” du 12 avril 2000’, Rev. fr. adm., n. 4, 2000, 725-736; Legendre, 2010-2011, 57.

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malfunctions created by a representative democracy that, in the forms of parliamentary governments, reduces the role of minority political forces. The question becomes yet more complex by the fact that it is not simple to pinpoint a dividing line between problems that engulf rulemaking and those which regard the study of administrative proceedings.30 It is sufficient to think of the subtle difference, often not so simple, that exists in the United States between rulemaking and adjudication.

8.3.2

The American Experience between Crisis and Innovation

The open investigation model presents some problematic aspects, in general attributed by American juridical thinking to two macro areas. The main objections highlight that interests devoid of a stable organisation are not evaluated31 and normally agencies do not take into consideration all the interests that could be implicated by their own activity.32 The neutral nature of agencies soon disappeared and many of these organisms became direct expressions of interests that instead they would have to regulate with neutrality.33 By consequence administrative action was attracted towards the assessment and evaluation of the more important interests in the country and that possessed the necessary organisational structure to express their representation in the ongoing proceedings.34 The second data subjected to continual criticism regards the problem of the slowness of administrative activity and the long times for concluding proceedings.35 The ample participation in the procedural investigations entails that between organisations of the representation of interests, usually controlled by the strongest pressure groups and the governmental agencies,36 a complex relationship of mediation is established, within which there is the attempt to reach and find a solution that is as much agreed upon as possible by the parties. This typology of proceedings is long and complex and slows down administrative action: the elapsing of very long times before the adoption of the final measure

30

31 32

33

34 35 36

On the topic Sicardi & Ferrara (cur.), 1998, 220; G.E. Metzger, ‘Administrative Constitutionalism’, Texas Law Review, Vol. 91, 2013, 1897-2013. J. Mendes, ‘Rule of law and participation: A normative analysis of internationalized rulemaking as composite procedures’, International Journal of Constitutional Law, Volume 12, Issue 2, 1 April 2014, 370-401. G.J. Edles, ‘An APA-Default Presumption for Administrative Hearings: Some Thoughts on “Ossifying” the Adjudication Process’, Admin. L. Rev., Vol. 55, 2003, 787-791. Cfr. C.J. Tolbert & D.A. Smith, ‘Representation and Direct Democracy in the United States’, The Journal of Representative Democracy, n. 1, 2006, 25-44; T. Hansford, ‘The Dynamics of Interest Representation at the U.S. Supreme Court’, Political Research Quarterly, n. 4, 2011, 749-764. T.O. McGarity, ‘Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age’, Duke L.J., Vol. 61, 2012, 1671-1762; J. Freeman, ‘The Private Role in Public Governance’, New York University L. Rev., Vol. 75, n. 3, 2000, 543-675; Chiti, 2009, 371. A. Nielson, ‘In Defense of Formal Rulemaking’, Ohio State Law Journal, Vol. 75, 2014, 237 et seq. G.J. Edles, 2003, 787-791; Mashaw, 2010, 975-992. Welch, 2012, 93-115.

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became typical of the American experience.37 In an attempt to prevent the known phenomenon of Ossification there was the quest for a model of simplification in the reg-neg process that substitutes the preparatory phase of projects with a procedure in which citizens have a decisive role in the drafting of the proposals.38 In rulemaking agencies are accused of carrying out only functions of surveillance of normative powers that are carried out by the groups of interests39 rather than by authorities who are the holders of these delegated functions.40 The American experience bares furthermore a further characteristic that is currently pushing the model towards a reduction of the spaces dedicated to participatory guarantees, compensated by the amplification of controls on the discretionary power.41 The role of the judiciary changed over the twentieth century. The high technical specialisation that characterised the staff of agencies induced American courts to abstain from the judicial review on the functions carried out. Courts were thus prudent, cautious and respectful of the function of agencies substantially delegated to guaranteeing defence of interests in the administrative proceedings. From the normative point of view section 707 of the APA conferred to the courts the power to annul the decisions of agencies only based on unreasonableness or groundlessness of the facts, negating any possibility of review of the adopted measures. This situation was to change within a few years. From 1970 onwards the offices of the Presidency began to examine the choices of agencies thus progressively to fill the void of control in the executive action that had characterised the presidential function in the past.42 The mechanism know as checks and balance allows the President and Congress, one via the power of veto and the other via the allocation of funds for the presidential programmes, to constantly search for and find compromises in political action. The uncontrolled development of agencies, the cessation of power by the Congress and the absence of a presidential control rendered practically inapplicable the balance of powers in relation to the exercise of executive functions. To this evident anomaly a remedy was found initially via procedures to permit the presidential offices to check the balance sheets and the activities carried out by agencies. Successively,

37 38 39 40 41

42

P.R. Verkuil, ‘Comment: Rulemaking Ossification – A Modest Proposal’, Admin. L. Rev., Vol. 47, 1995, 453-459; Edles, 2003, 787-791. Edles, 2003, 321. Cfr. J.M. de Figueiredo & R.J.P. de Figueiredo, ‘The Allocation of Resources by Interest Groups: Lobbying, Litigation and Administrative Regulation’, Business and Politics, n. 2, 2002, 161-181. Cfr. A.R.G. Moniz, ‘The Rulemaking Power of Administrative Agencies: Crisis of Legality, Rule of Law, and Democracy’, Coimbra Business School, Vol. 1, n. 1, 2015, 37-65. J.E. Gersen & A.J. O’Connell, ‘Deadlines in Administrative Law’, University of Pennsylvania Law Review, Vol. 156, n. 4, 2008, 923-987; T. Prosser, The Regulatory Enterprise: Government, Regulation, and Legitimacy, Oxford University Press, Oxford 2010, 209. On the Orders adopted G.F. Ferrari, ‘La semplificazione amministrativa negli ordinamenti anglo-americani: recenti tendenze’, Diritto pubblico comparato europeo, 2006, n. 1, 324-326. Cfr. also N. Bagley & R.L. Revesz, ‘Centralized Oversight of the Regulatory State’, Columbia Law Review, Vol. 106, n. 6, 2006, 1260-1329.

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via specific executive orders the Presidents of the United States obliged the federal administrators to present preventive studies on economic impact, related to the significant normative proposals that exceeded 100 million dollars, to make known the programmes of their activities with biannual deadlines. In these reports they had to include also certification to demonstrate the benefits that would be derived from a specific regulation if it would be above the foreseeable costs. In accordance with the executive orders that were gradually adopted over the years, the federal agencies must indicate the reasons of their decisions and why there are excluded the other possibilities emerged from the procedural investigation.43 Agencies thus began to evaluate the economic effects of the rule project and to submit the analyses carried out to the Office of Management and Budget, that is an executive agency established to guarantee the actuation of presidential policy.44 Via the analysis of the costs-benefits a central system to pre-emptively control the activities of agencies was activated, enforcing at the same time the duty to give reasons related to rulemaking.45 This circumstance not only dilated closure times of proceedings but also entailed an additional centre of compensation of activities of the lobbies that was thus subtracted to respect the Administrative Procedure Act and the transparency.46 The innovation gave the opportunity to American courts to extend control beyond the mere rationality.47 Via the evolution of the substantial evidence test, and the arbitrary and capricious test, corroborated by the hard look doctrine, judges had gained ground in a short space of time that only a few years earlier was considered to be unimaginable. Courts proceeded to verify the balancing between the normative innovations and the costs that would been fall of the society. There was a new way of intending the relationship between citizens and public power and the idea of a participative democracy.48 The limits of the judicial review are not clear and laws are varying.49 However the principles expressed by courts have induced American agencies to act with a significant focus on reasonableness: i) taking into consideration therefore all the important aspects of the question, ii) avoiding any contradictory between the given reasons and the elements gathered during the investigation, or with precedents employed by Congress or agencies, iii) ascertaining the

43 44 45 46 47

48

49

Shapiro & Murphy, 2015, 1457-1508. Sul tema Bagley & Revesz, 2006, 1260-1329. Shapiro & Murphy, 2015, 1507. Ferrari, 2006, 325. Starting from the decisive turning point by the Supreme Court in the well-known Chevron case of 1984, which permitted the interpretative power of the Statutes by the agencies that had to apply it, provided that it was not irrational. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). On the topic Barra Caracciolo, 1997, 41; Berry, 2007, 541-601. However, part of juridical thinking sustained that the malfunctions in procedures conducted by the agencies, and the connected phenomenon of Ossyfication, are also the effect of the amplification of the judicial control on administrative action. Shapiro & Murphy, 2015, 1507. Marchetti, 2005, 269; Shapiro & Murphy, 2015, 1506.

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advantages produced by the proposed normative innovation with regards to the costs that would be encountered. The need of democratic legitimacy, that constituted the main reason of the participation in rulemaking, seems today to American juridical thinking50 relegated to a second level. There is the tendency towards more flexible regulation mechanisms far beyond the informal model already envisaged by the Administrative Procedure Act51 and to change the regulatory framework to allow the Congress to have prior control over the most important acts.52 The circumstance regards the cases of rulemaking rather than adjudication. But the dividing line between these typologies of procedure are often very thin and difficult to identify,53 so much so that the problematics of a procedure often reflect on the other.54 The general principles too that regulate administrative and judicial action are not affected by the distinction between the two typologies. The effect is that the majority of the problems that characterise rulemaking transfer also onto adjudication, because in many cases the adjudication procedure depends on the general rules that are always of competence of the very same agency. The model of interests representation is thus in full evolution towards forms that seem to question even the main reasons for which it was created, within the particular American tradition.

8.3.3

New Tendencies in Spain

While in France the model is quite recent and developing, in Spain the idea of citizen participation in rulemaking is outlined in the constitutional text,55 which for years however 50 51 52

53 54

55

Instead, stimulates ever greater participation D. Fontana, ‘Reforming the Administrative Procedure Act: Democracy Index Rulemaking’, Fordham Law Review, Vol. 74, 2005, 81-127. Cfr. C. Coglianese et al., 2009, 924-972. Regulations from the Executive in Need of Scrutiny Act of 2017 eRegulatory Accountability Act of 2017, that are in the process of being approved by the Congress. The first bill states that its purpose is to increase accountability for and transparency in the federal regulatory process by requiring Congress to approve all new major regulations. It revises provisions relating to congressional review of agency rulemaking to require federal agencies promulgating rules to: i) identify and repeal or amend existing rules to completely offset any annual costs of new rules to the U.S. economy, ii) publish information about the rules in the Federal Register and include in their reports to Congress and to the Government Accountability Office a classification and a complete copy of the cost-benefit analysis of the rules, including an analysis of any jobs added or lost, differentiating between public and private sector jobs. The second bill revises notice-and-comment rulemaking procedures to require federal agencies to consider: i) whether a rulemaking is required by statute or is within the discretion of the agency, ii) whether existing federal laws or rules could be amended or rescinded to address the problem and iii) reasonable alternatives for a new rule. Cfr. J.J. Rachlinski, ‘Rulemaking Versus Adjudication: A Psychological Perspective’, Florida State University Law Review, n. 2, 2005, 529-554. Cfr. Berry, 2007, 541 et seq.; J.W. Yackee & S. Webb Yackee, ‘Administrative Procedures and Bureaucratic Performance: Is the Federal Rulemaking “Ossified”?’, Journal of Public Administration Research and Theory, n. 2, 2010, 261-282. Art. 105 a, Cost. 1978.

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had not fully affirmed itself. Spanish juridical thinking had exalted the role that participation could play in the constitutional system, especially in order to counteract the crisis of democratic legitimacy of agencies.56 However the interpretation provided by the Constitutional Court had seen only a programmatic principle in the fundamental rule and required a specific law for its implementation.57 The regional configuration of the State made extremely difficult to provide a general law for rulemaking also applicable to authorities in autonomous communities, some of which had already established their internal rules. With Article 24 of Law no. 50 of 27 November 1997 the opening to participation takes place in a rather prudent manner through two forms. One, direct, exercisable by citizens whose rights and interests would be damaged by the content of a regulatory provision and indirectly, by means of legally recognised associations and organisations. However the rights of citizens were to be directly and seriously compromised by the draft regulation in order to be able to participate. The authority was bound to give the reasons why it felt that a specific project could not harm the interests of individuals in order to avoid an open inquiry. Procedures for the exercise of the right of participation were not prescribed and administrators were thus endowed with a wide discretionality, both with regards to the investigative model to be chosen and the procedure to be followed. The 2015 novelties insert themselves into a conservative context but provide a major push towards the open investigation model.58 The most innovative institute is provided by public consultation which is to be carried out before the rule is drafted to gather the views of citizens about the necessity, the opportunity of its approval and the existence of alternative solutions.59 The principles of good organisation, effectiveness, and efficiency achieve the highest expression in so far as the debate takes place before the project is approved and the authority must demonstrate not only the goals it intends to pursue but also the reasons for which the initiative is to be considered indispensable and appropriate. The institution is not applicable when the rule proposal does not have a significant impact on economic activities, unless it imposes significant obligations on the addressees of the administrative action or regulates only partial aspects of the matter or in cases of urgency.60 Alongside this novelty public hearings are applicable in all the cases61 in which the rule could be undermine citizens’s rights and interests.62 In these cases the model tends to

56 57 58 59 60 61

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S. Muñoz Machado, ‘Las conceptiones del Derecho Administrativo y la idea de participación en la Administración’, Revista de Administración pùblica, n. 84, 1977, 519 et seq. Tribunal constitucionnel, judgment n. 119 del 17 luglio 1995. Santamaría Pastor, 2016, 31 et seq. Art. 133.1 law 39/2015. Art. 133.4 law 39/2015. However, the new provisions show problems of integration with the competence of the Autonomous Communities. Cfr. L. Casado Casado, ‘La incidencia de la ley del Procedimiento administrativo Común de las Administraciones Públicas sobre la potestad normativa local’, R.V.A.P. n. 107, 2017, 87 et seq. Regulated by Art. 133.2 law 39/2015.

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provide for preventative defence when the rulemaking concerns hypotheses that have already been regulated and that can lead to a violation of legal positions.63 Naturally the result of the participation, which happens mostly through internet sites, is not be binding on the authority that must give reasons for the final choices.

8.3.4

Rulemaking and Participation in Latin America

In the Latin American area the most highest expression of the model is to be found in Venezuela where the laws oblige public powers to activate participation in rulemaking.64 The particularity of the approach is mainly characterised by a duty of authorities to activate participation procedures, while in the other experiences it is a choice mainly based on a discretionary power. The violation of the procedure due to the lack of public consultation, entails the invalidity of the rules.65 The dispositions allow anyone who has an interest to present observations and diverse evaluations or points of view and they oblige agencies to report in a public register all the citizens’ observations. This phase can be omitted only in cases of extreme emergency due to problems of national security. In these cases too, to be considered of a strict application, an authority that has approved regulations without respecting participation is bound to permit it in a successive phase, that can lead to a confirmation or modification and abrogation of the approved regulations. The rulemaking procedure in this country appears supported by a fundamental principle that prevails on the acts that regulate administrative action. This approach was notably influenced by the Constitution of 1999 that stimulates the administrative action to protect citizens’ rights.66 The constitutional rules put an end to an intense debate that had characterised juridical thinking in this country on the role that the administrative rulemaking should have in relation to fundamental rights.67 The right to an effective and direct partic-

63

64

65 66 67

A.I. Fortes Gonzàlez, ‘De la iniciativa legislativa y de la potestad reglamentaria. En especial la mejoria regulatoria’, in R. Rivero Ortega et al. (cur.), Instituciones de procedimiento administrativo común. Novedades de la ley 39/2015, Juruà, Lisboa, 2016, 346 et seq. Cfr. G. Allegretti, ‘Politiche di partecipazione in Venezuela: tra discorso costituzionale e pratiche sperimentali’, Democrazia e diritto, n. 3, 2006, 42-69; F. Parisi, ‘La democrazia partecipativa in Venezuela’, in G.C. De Martin, D. Bolognino (cur.), Democrazia partecipativa e nuove prospettive della cittadinanza, Cedam, Padova 2010, 247 et seq. Art. 140 de la Ley Orgánica de la Administración Pública. Arts. 49, 141 and 143 cost. Venezuela. Cfr. J.M. Hernándes Ron, ‘Historia del Derecho Administrativo Venezolano’, Revista del Colegio de Abogados del Distrito Federal, n. 6, 1938, 95-97; L.A. Herrera Orellana, La Potestad de Autotutela Administrativa. Ejecutividad y ejecutoriedad de los actos y contratos administrativos, Ediciones Paredes, Caracas 2008, 139; G. Arias Gayoso, ‘Del nuevo Derecho Administrativo: partecipación y control popular en la gestión pública’, in G. González Orquera & Y. Pérez Martinez (cur.), Participación política. Reflexiones desde el sur, tomo II, Instituciones de partecipación ciudadana en América Latina, La Caracola Editores, Quito 2014.

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ipation in administrative decision making was affirmed with regards to economic and social activities, as cited in Articles 62 and 70 of the Constitution. Juridical thinking viewed the clear consequences of the participatory model on administrative action.68 It is another thing then to ascertain whether the model finds its concrete implementation in the regimes in which contemporary constitutionalism is constantly developing. The Columbia experience is more toned down.69 In this State Article 189 of the Constitution obliges public authorities to respect the principles of participatory democracy and democratisation of administrative action. Public bodies were to arrange all the necessary activities with the aim of involving citizens and social organisations via: i) public hearings, ii) integrating the development plans and management policies and programmes for enhancing the consultation, iii) encouraging the formation of associations and partnership mechanisms to represent users and citizens, iv) giving their support and permitting maximum transparency in the exercise of administrative functions. Article 32 of law 489 of 1998 regulated the organisation of national public bodies. Today the normative set-up, in Article 5, comma 8 of law 1437 of 2011 confers the possibility, rather than the duty, for public administrators to request hearings also in the face of expressed requests for participation in proceedings. This implies that public participation in general decision making is at the discretion of an authority, both with regards to the activation as well as with regards to the content of the final decision, in the event that participation is admitted. A public body, even when it has consented to participation of private organisations, remains always free in its final choices and is not bound to give any reasons.70 Therefore participatory democracy appears rather limited as a consequence of the legislative reception of the constitutional principles. The dispositions in fact should have indicated some typologies of proceedings which envisaged the obligatoriness of public participation.71 In Argentina there was a phase in which participation also in rulemaking was permitted by Article 107 of the implementing rules of procedure.72 This disposition was abrogated with decree 1883/1991. The principle, expunged as a general criterion, subsequently

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71 72

Cfr. Hernández-Mendible, 2011, 576-577. S. Launay, ‘Démocratie représentative et démocratie participative. Remarques pour une comparaison de la Colombie et du Venezuela contemporains’, Desafíos, n. 24, 2012, 155-173. M. Pochard, ‘La Administración Pública y la protección de los derechos fundamentales’, in Memorias. Seminario Franco-Colombiano sobre la Reforma a la Jurisdicción Contencioso Administrativa. Misión de Cooperación Técnica en Colombia del Consejo de Estado Francés, Escuela Judicial “Rodrigo Lara Bonilla”, Bogotá 2008, 81-90. Consejo de Estado, Sección Primera, 19 November 2009, n. 2003-00453, http://legal.legis.com.co/document?obra=jurcol&document=jurcol_7945f494622d604ce0430a010151604c. Cfr. J. Barnes Váquez, ‘El procedimiento administrativo en el tiempo y en elespacio: una perspectiva histórica y comparada’, in H. Pozo Gowland et al. (cur.), Procedimiento administrativo. Aspectos generales del procedimiento administrativo. Relacions con otras ramas del derecho, tomo I, La Ley, Buenos Aires 2012, 145-253.

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reappeared in some sector regulations.73 In 2003, with decree n. 1172 approving the general regulation for participation in rulemaking, there was an attempt to reactivate this model, which in effect had a scarce application.74 In Brazil the open investigation model is regulated by Articles 31 and 32 of law 9.784/99. In essence it is admitted in the forms of public hearings when it is possible to verify damage to pre-existing rights.75 The participatory guarantees are numerous. The law considers interested parties in proceedings: i) persons that are holders of rights or individual interests, ii) those who exercise the right of representation, iii) any other person that even without having given rise to proceedings, is the holder of rights or interests that can be damaged by the decision that will be adopted, iv) or additionally organisations or associations of representation or legally constitutes in relation to rights or diffused interests.76 Similar institutes can be found in Costa Rica, Peru and Mexico.77

8.3.5

Consensus and Administrative Action in Japan. The Evolutionism of Soft Law

In 1993 a general law on proceedings was approved in Japan and it distinguished three categories. The first concerns appeals against a decision assumed by an authority. The principles were: i) orality, ii) formal participation, both in the debate as well as in the acquisition of evidence, iii) the duty to keep separate the personnel that carry out the investigation and those who must decide, iv) the independence of the authority that is competent in emitting the decision of the appeal. The other two concern the proceedings initiated by the party and those for regulations. The law was reformed in 2005 and expanded these principles to other typologies of general acts, among which the directives for the adoption of administrative acts and the internal dispositions.78 The model of interest representation is similar to the American one, with the obligation to pre-emptively publish the rule projects and to consent a wide participation without particular limitations. Authorities must evaluate observations and documents that could be presented by private parties. The model conceived by the regulations of 2005 seems thus to construct a notably advanced set up towards the institutes of participatory democracy. 73

74 75 76 77 78

This is observable in the disciplining of the public gas service (law n. 24.076) and that of electricity (n. 24.065). The principle of participation can be observed in the Decree delegated 1023/01, in the question of Régimen de Contrataciones de la Administración Nacional. Durand, 2011, 312. K. Frey & F. Duarte, ‘Démocratie participative et gouvernance interactive au Brésil: Santos, Porto Alegre et Curitiba’, Espaces et sociétés, n. 123, 2005, 99-112; Perlingeiro, 2011, 319. Art. 9 Law n. 9.784/99. Brewer-Carías, 2003, 98-99. Administrative Procedure Law (Japan). Law No. 88 of 1993 and refermed by Act N. 73 of 2005.

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However into a more detailed analysis notable differences in relation to the United States can be observed, due mainly to the features to the legal sources. In relation to the American experience this system lacked a strong judiciary. Furthermore the country never equipped itself with a bureaucratic structure nor did it confer any particular importance to the notion of the administrative act79. Hence none of the conditions that led in the other experiences to attribute a notable value to administrative procedures, came into being. The principle of legality in Japan was toned down by the imprecision, indeterminateness and vagueness of laws, in a manner very similar to that which occurred in China. In contrast to that which had occurred in common law countries, here the lack of legislative precepts was not filled by general principles elaborated by case law.80 There was not pre-determined criteria and all the power was shifted onto the authority that was bound to analyse the requests of citizens and decide whether to amplify or reduce rights or interests, in the absence of legislative provisions.81 Today the absence of criteria leaves administrators extremely free in the exercise of their functions. Furthermore it is extremely rare that the decisions assumed by Japanese agencies have an executive force. An authority thus must obtain the consensus of addressees of the administrative measures in order to execute its function in an efficacious way. In reality it is also the nature of the Japanese bureaucratic apparatus that leads to this situation. The number of officials is rather small in comparison to the population. The participation of citizens becomes indispensable for the acquisition of the necessary informations that instead a State with a strong bureaucratic apparatus would be able to obtain via the work of its public officials. In fact frequently the proposals for regulating entire sectors stem directly from trade unions and sometimes from pressure exerted by the competent Ministry. Due to the lack of an executory force of the administrative act, an authority must necessarily trust in the collaboration of citizens, in particular with brokers, in order to manage its own action. The entire system is structured on the bases of a negotiations between public bodies and society with a bilateral consensus. The laws on the proceedings of 1993 and 2005 have insert themself on this legal tradition and have only prescribed some corrections to solve the existent problems of transparency and inefficiency of administrative action. The obligation to disclose the criteria pre-determined by general directives in order

79

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Cfr. T.J. Pempel & M. Muramatsu, ‘The Japanese Bureaucracy and Economic Development: Structuring a Proactive Civil Service’, in K. Hyung-ki et al. (cur.), The Japanese civil service and economic development: Catalysts of Change, Clarendon Press, Oxford 1995, 19-75. C. Fusaro & T. Takahashi, ‘Insegnamenti dal Giappone: quando la politica non si fa arginare dal diritto’, Quaderni costituzionali, n. 4, 2005, 877-880. Cfr. T. Nakagawa, ‘Participatory Administrative Law: How Is It Emerging in Japan?’, Journal of the JapanNetherlands Institute, n. 10, 2010, 208-209.

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to obtain licenses and concessions, was introduced, as well as time limits for the adoption of final measures, the duty to give reasons and the right to access information.82 Administrative action is negotiated and bilateral. This effect occurs with particular frequency in local governments where administrators have limited powers and frequently utilise administrative directives to regulate sectors of their own competences, in particular with regards to city planning and environment. By means of directives adopted with the consent of citizens, an authority creates the conditions for compliance with the rules through extensive participation in decision making.83

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83

The case in which the investigation requires the intervention of other authorities does not envisage acceleration or simplification mechanisms, but rather only a generic obligation of the agencies to act rapidly to acquire the missing investigation component, always via generic phases, when the circumstances make it necessary. Art. 32 of law 1993. The administrative directives are constituted by all those acts that do not implicate the exercise of an authority but are utilised by the competent body to induce a specific ambit of persons to omit or behave in such a way as to satisfy the general interest for which they are adopted.

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Comparative Public Law Treatise Founded by Giuseppe Franco Ferrari Vincenzo De Falco, Administrative Action and Procedures in Comparative Law, 2018, ISBN 978-94-6236-842-2 Silvio Gambino, Jorge Lozano Miralles, Fernando Puzzo, Juan José Ruiz Ruiz, The Spanish Constitutional System, 2018, ISBN 978-94-6236-843-9 Eloy Garcia, Elisabetta Palici di Suni, Martin Rogoff, Direct Democracy in Comparative Law, 2018, ISBN 978-94-6236-844-6

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