Toolbox of the Public Administration Entity. Intersection of the Principle of Legality and Administrative Discretion in Exercising the Revocation of an Administrative Decision

For some, revocation of an administrative decision arises doubts, for others, it is a legal measure ensuring that public administration entities are able to respond to changing circumstances and adopt not only legitimate, but also fair decisions by striking a balance between private and public interests. This paper aims to analyse the choice of Lithuania with respect to the implementation and application of the public administration entities right to revoke its previously adopted administrative decision. In order to achieve this goal, the results of analysis of the role of the principle of legality and administrative discretion in the decision-making process, legal regulation of public administration and case-law are revealed. The analysis will show that there is room for the possible systematisation of the administrative procedures, aiming to ensure that public administration entities are able to respond to the ongoing changes in order to fulfil the objectivities based on which the particular public administration entities were established.

ADMINISTRATIVE DISCRETION AND INSTRUMENTS OF PUBLIC ADMINISTRATIONS: ADMINISTRATIVE AND LEGAL AND DEONTOLOGICAL DIMENSIONS

The article focuses on the relationship between public administration and legal deontology. Public administration is a renewed form of public administration. The difference is that public administration is a more democratic process of state-authoritative impact on social relations. This democracy is manifested in the forms and methods of managerial activity used. Among the forms and methods of public administration, a softer set of forms is selected – an appropriate combination of legal and non-legal forms, the method of persuasion and coercion. The very activity has an executive and administrative nature. The executive orientation implies the call of public administrations to promote the practical implementation of laws. Orders – to adopt and implement legal acts of administration. Forms and methods together constitute the tools of activity of public administrations. Executive-administrative activity is carried out through appropriate managerial procedures. The basis of activity is administrative discretion. It consists in the possibility at one’s own risk to use forms and methods in their totality depending on the choice of the public administrator himself. This requires its appropriate level of professional training and the necessary level of compliance of the activity of a public administrator with increased moral and ethical parameters. Given the lack of administrative and procedural legislation, it is proposed to consider the use of discretionary powers as permissible with the possibility of expanding their limits within the law. But this is only on condition of introducing into the normative regulation of public administrators’ activity the code of their professional conduct. Such a code should contain an ideal model of professional conduct of public administrators. Conformity of professional conduct of an official of public administration body to the requirements of the code is a prerequisite for the implementation of its social mission. The code of ethics of a public administrator should contain a set of requirements of moral and ethical nature, compliance with which in the activities of the public administrator will contribute to the implementation of constitutional requirements on the social orientation and conditionality of the activities of the state and all its bodies.

The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

Sądowa kontrola decyzji organów podatkowych w sprawach ulg w spłacie zobowiązań podatkowych opartych na uznaniu administracyjnym

<p>The article is of a scientific-research nature. The author discusses the problem of limits of judicial review of discretionary decisions made by taxation authorities, which aim at applying relief in payments of tax liabilities under Polish regulations and case-law of administrative courts. It may be noted that despite the issue of administrative discretion being discussed in the academic literature, the question of limits of judicial review in the practice of administrative courts still raises doubts. It is therefore reasonable to undertake the analysis of the main views formulated in the literature and the case-law of administrative courts addressing this problem, from the point of view of the limits of judicial review of discretionary decisions. The thesis of the article is that the nature of discretionary decisions on relief in payment of tax liabilities, determined by the function of administrative discretion, and, at the same time, the criteria set out in the law for judicial review of public administration, limit the role of the administrative court in examining the compliance with procedural law of the tax proceedings preceding the issuance of such a decision and the respecting by tax authorities of the fundamental values of the system of law expressed in the Polish Constitution. This is because they define the limits of administrative discretion, within which the choice of one of the possible solutions remains beyond the judicial review of the public administration. For the law, as it stands (<em>de lege lata</em>) there are no grounds for administrative courts, provided that the tax authorities respect the basic values of the legal system expressed in the Polish Constitution, to formulate assessments as to the circumstances and reasons justifying the granting or refusal to grant a tax relief, or its scope. The concept of internal and external limits of administrative discretion may therefore be useful for administrative court rulings.</p>

On the issues of judicial control over the discretion of the authority

Purpose: The purpose of the article is to define the concept of «discretionary powers», to formulate conclusions on the limits of discretionary powers of government authorities, to analyze the limits of judicial control over discretionary powers, the correlation between court procedural discretion and public administration discretion. Methods: The theoretical and methodological basis of the study are modern general scientific and special legal methods of scientific knowledge. The formal-logical method and the method of analysis and synthesis are used in the study of doctrinal provisions on the concept of «discretionary powers». The method of comparative legal analysis is used in the study of foreign models of judicial control over the exercise of discretionary powers. Results: The article defines the concept of «discretionary powers», considers the types of administrative discretion, approaches to the scope of judicial control over the implementation of discretionary powers in different European countries, givthe criteria for effective judicial control over the exercise of discretionary powers. Conclusions: The attribute of effective judicial protection against illegal activity in the exercise of discretionary powers is the issuance of a court decision that makes it impossible to re-apply to the administrative body or re-resolve the same issue. Based on this, it is concluded that in Ukraine it is appropriate to apply the model of full judicial control, and the recognition of the disputed decision as illegal with the obligation to re-adopt the administrative decision is contrary to the rule of law principle, except the situations when: - there was no real consideration of the issue as such (non-compliance with the decision-making procedure, decision-making by an inappropriate subject); - there is an exclusive competence of the relevant body to make a specific decision (assign a rank, military rank, etc.). Keywords: rule of law, administrative discretion, procedural discretion, judicial control, remedies.

Corruption, Elites, and Power: An Overview of International Policy Efforts to Improve the Quality of Government

In 1996, the then president of the World Bank James Wolfenson stressed the malign effects of corruption on development, putting anticorruption on his institution’s agenda. Since then, the Bank and many other development institutions have focused on corruption and quality of government. This chapter reviews the different approaches taken to improve the quality of governments while fighting corruption: state structural reform, simplification and reduction of administrative discretion, transparency and accountability initiatives, international agreements and conventions, and specialized anticorruption bodies. This chapter reviews the effectiveness of these approaches and concludes that while there have been some successes, there is relatively little evidence of major improvement in aggregate levels of corruption. The reason for this lies in the political nature of corruption and the powerful incentives of elites to maintain the status quo. The limited impact of anticorruption efforts reflects the fact that the international donor community, often operating in an uncoordinated way, usually does not have the political leverage to shift these incentives.