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  • Good Administration and Administrative Procedures
  • Dr. Juli Ponce (bio)

This article examines the relationship between administrative procedures, the duty of giving reasons, and the citizens' participation in relation to the quality of the administrative behavior. I will take into account some national experiences and will reflect about some crucial issues connected with fundamental rights and administrative procedures in the European Union (EU). The U.S. model will also be considered.1

This study focuses on adjudicative procedures. I will not analyze rulemaking procedures, but a number of brief considerations about them will be included in the final part.

The three fundamental questions are:

  1. 1. What purpose do administrative procedures serve? That is, why do must public authorities follow an administrative procedure when making a public decision?

  2. 2. Is it a good or bad idea to regulate administrative procedure? If good, how best to regulate it?

  3. 3. Who should regulate administrative procedures?

The article will begin by analyzing the functions of administrative procedures as legal institutions. I will distinguish the instrumental functions from the noninstrumental, paying special attention to the relationship between good administration and its procedural aspects. Secondly, I will consider whether it is a good idea to codify administrative procedures, and discuss arguments in favor of [End Page 551] and against codification. Accepting that codification could be a good idea, I will then examine the different possible ways of codifying procedures, analyzing the first European attempt to regulate the administrative procedures that have taken shape in the European Code of Good Administrative Behaviour.2 Later, I will examine the subjects given responsibility for codifying administrative procedures. Thus, I will consider the role of the Constitution, the Parliament, and the executive branch, as well as case law intervention. I will conclude with some brief reflections about rulemaking.

I will adopt an international and comparative approach, analyzing European national administrative laws, EU law, and U.S. law. The goal is to show that although there are differences between those legal systems, there is a certain degree of convergence in relation to problems and solutions. This is not surprising, given our increasingly globalized world.

I. What are the Functions and Rationales of Administrative Procedure?

Differences may be distinguished between noninstrumental and instrumental functions:

  1. a. Noninstrumental functions: administrative procedure plays a role by itself without being linked to the final decision that is its output. Among these functions can be highlighted at least the following:

    1. 1. protection of personal dignity (a dignified approach linked to Kant's ideas);3

    2. 2. promotion of citizens' participation (sometimes associated with deliberative democracy following Habermas' ideas, for example);4

    3. 3. enhancing transparency and accountability;5 and [End Page 552]

    4. 4. improvement of legitimacy. Administrative procedures compensate for the lack of formal rationality owing to the lack of legal predetermination in the case of existing discretionary areas of judgment, offering an extra legitimacy based on more democracy and better quality of the outputs.6

  2. b. Instrumental functions: from this perspective, administrative procedure guarantees the correctness of the substantive outcome. Administrative procedure is useful for:

    1. 1. the protection of rights and interests (the procedure then acting as a legal "shield") and

    2. 2. the promotion of good administration and, consequently, the quality of final decisions, especially if discretionary powers exist.7

In order to develop this second role of administrative procedures in relation to outcome-that is, the promotion of good administration-it is first necessary to understand the meaning of discretionary powers.

The European concept of discretionary powers entails two common notions: choice and general interest. Academic writers agree that discretion means that public administration is empowered by law to choose from among several legal possibilities, taking into account nonjuridical criteria. This choice implies balancing public and private interests by using extralegal values to define a general interest that is not established by statutes.

A particular recommendation by the Committee of Ministers is of interest in the field of European Community (EC) law; in its appendix, this recommendation defines "discretionary power" as a "power which leaves an administrative authority some degree of latitude as regards the decision to be taken, enabling it to choose from among several legally admissible decisions the one which it finds to be the most...

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