Indiana Journal of Global Legal Indiana Journal of Global Legal
Studies Studies
Volume 12 Issue 2 Article 10
Summer 2005
Good Administration and Administrative Procedures Good Administration and Administrative Procedures
Juli Ponce
University of Barcelona
Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls
Part of the Administrative Law Commons, and the International Law Commons
Recommended Citation Recommended Citation
Ponce, Juli (2005) "Good Administration and Administrative Procedures,"
Indiana Journal of Global Legal
Studies
: Vol. 12 : Iss. 2 , Article 10.
Available at: https://www.repository.law.indiana.edu/ijgls/vol12/iss2/10
This Symposium is brought to you for free and open
access by the Law School Journals at Digital Repository
@ Maurer Law. It has been accepted for inclusion in
Indiana Journal of Global Legal Studies by an authorized
editor of Digital Repository @ Maurer Law. For more
information, please contact rvaughan@indiana.edu.
Good
Administration
and
Administrative
Procedures
DR.
JULI PONCE*
This
article
examines the
relationship
between
administrative
procedures,
the
duty
of
giving
reasons,
and
the
citizens'
participation
in
relation
to
the
qual-
ity
of
the
administrative
behavior.
I
will
take
into account
some
national
experi-
ences
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.'
This
study
focuses
on
adjudicative
procedures.
I
will
not
analyze
rulemak-
ing
procedures,
but
a
number
of
brief
considerations
about
them
will
be
in-
cluded
in
the
final
part.
The
three
fundamental
questions
are:
(1)
What
purpose
do
administrative
procedures
serve?
That
is,
why
do
must
public
authorities
follow
an
administrative
procedure
when
making
a
public
decision?
(2)
Is
it
a
good
or bad
idea
to
regulate
administrative
procedure?
If
good,
how
best
to
regulate
it?
(3)
Who
should reoulate
administrative
procedures?
The
article
will begin
by
analyzing
the
functions
of
administrative
proce-
dures
as
legal
institutions.
I
will
distinguish
the
instrumental
functions from
the
noninstrumental,
paying
special
attention
to
the
relationship
between
good
ad-
ministration
and
its
procedural
aspects.
Secondly,
I
will
consider
whether
it
is
a
good
idea
to
codify
administrative
procedures,
and
discuss
arguments
in
favor
of
*Professor
Titular
de
Derecho
Administrativo,
University
of
Barcelona,
Spain.
1. The
article
presented
here
is
partly
based
on
several
previously
published
studies.
See
JuLi
PONCE,
DEBER
DE
BUENA
ADMINISTRACI6N
Y
DERECHO
AL
PROCEDIMIENTO
ADMINISTRATIVO
DEBIDO:
LAS
BASES
CONSTITUCIONALES
DEL
PROCEDIMIENTO
ADMINISTRATIvO
Y
DEL
EJERCICIO
DE
LA
DISCRECIONALIDAD
(2001);
Juli
Ponce,
Good
Administration
and
European
Public
Law:
The
Fight
for
Quality
in the
Field
of
Administrative
Decisions,
14
EUR.
REV.
PUB.
L.
1503
(2002)
[hereinafter
Good
Administration
and
European
Public
Law];
Juli
Ponce,
La
calidad
en
el
desarrollo
de
la
discrecional-
idad reglamentaria:
teorias
sobre la
regulaci6n
y
adopci6n
de
buenas
decisiones
normativas
por
los
Gobi-
ernos
y
las
Administraciones,
162
REVISTA
DE
ADMINISTRACI6N
PfJBLICA
89
(2003)
[hereinafter
La
calidad
en
el desarrollo
de
la
discrecionalidad
reglamentaria].
JULIPONCE
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
pro-
cedures.
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 Euro-
pean
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
surpris-
ing,
given
our
increasingly
globalized
world.
I.
WHAT
ARE
THE
FUNCTIONS
AND
RATIONALES
OF
ADMINISTRATIVE
PROCEDURE?
Differences
may
be
distinguished
between
noninstrumental
and
instru-
mental
functions:
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)
protection
of
personal
dignity
(a
dignified
approach
linked
to
Kant's
ideas);
3
(2)
promotion
of
citizens'
participation
(sometimes
associated
with
deliberative
democracy
following
Habermas'
ideas,
for
example);
4
(3)
enhancing
transparency
and
accountability;
5
and
2.
EUROPEAN
COMMISSION,
CODE
OF
GOOD
ADMINSTRATIVE BEHAVIOUR
[hereinafter
EUROPEAN
CODE
OF
GOOD
ADMINISTRATIVE
BEHAVIOUR]
(2001),
available
at
http://www.euro-ombudsman.
eu.int/code/pdf/en/codeen.pdf
(last
visited
Apr.
3,
2005).
3.
P.P.
Craig,
Procedures
and
Administrative
Decision-making:
A
Common
Law
Perspective,
5
EUR.
REV.
PUB.
L.
55
(1993).
4.
RAFAEL
RUBIO,
Los
GRUPOS
DE
PRESI6N
100
(2003).
5.
Denis
Galligan,
Principal
Institutions
and
Mechanisms
of
Accountability,
in
COMPREHENSIVE
LEGAL
AND
JUDICIAL
DEVELOPMENT
31
(RudolfV.
Van
Puymbroeck
ed.,
2001);
CAROL
HARLOW,
Ac-
COUNTABILITY
IN
THE
EUROPEAN
UNION
159
(2002).
GOOD
ADMINISTRATION
AND
ADMINISTRATIVE
PROCEDURES
553
(4)
improvement
of
legitimacy.
Administrative
procedures
compen-
sate
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
b.
Instrumental
functions:
from
this
perspective,
administrative
proce-
dure
guarantees
the correctness
of
the
substantive
outcome.
Admin-
istrative
procedure
is
useful
for:
(1)
the
protection
of
rights
and
interests
(the
procedure
then
acting
as
a
legal
"shield")
and
(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
no-
tions:
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
gen-
eral
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
recommen-
dation
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
appropriate."
8
6.
NIKLAS
LUHMANN, LEGITIMA
DURCH
VERFAHREN
(1969).
7.
Lord
Millet, The
Right
to
Good
Administration
in
European
Law,
47
PUB.
L. 309,
310
(2002),
(explaining
that
"[b]y
good
administration
is
meant
good
administrative
procedures").
I
agree
with
this
statement but
must
add
a
nuance: good
administration
means
good
administrative
pro-
cedures
and
good
reasons
to back
the
final
decision,
as
we
will
see
shortly.
8.
Recommendation
of
the
Comm.
of
Ministers
No. R
(80)
2
Concerning
the
Exercise
of
Discretion-
ary
Powers
by
Administrative
Authorities,
316th
Mtg.
(1980)
(adopted
by
the
Committee
of
Ministers
on
March
11,
1980
at
the
316th
meeting
of
the
Ministers'
deputies)
[hereinafter
Recommendation
of
the
Comm.
ofMinisters].
JULI
PONCE
The
core
of
discretion,
that
is,
the
choice
between
alternatives,
is
something
odd
in
traditional
administrative
law,
which
does
not
deal
with
it,
except
for de-
limiting boundaries
for discretion
that
cannot
be
crossed.
The
choice
itself
is
considered
a
matter
of
politics,
not
a
legal
issue.
In
the
traditional paradigm,
ad-
ministrative
law
provides,
above
all,
a
defense
for
individuals,
a
shield
against
arbitrary
decisions.
From
that
point
of
view,
where
statute
ends,
tyranny
begins-and
the
only
ef-
fective
protection
against
tyranny
is
judicial
review.
Therefore,
traditional admin-
istrative
law
is
not
especially
interested
in
good
administrative
decisions
but
in
the
judicial
review
of
illegal
decisions, to
protect citizens
against public
arbitrariness.
This
is
a
negative
approach
in
the
sense
that
it
is
an
approach
against
arbitrariness
that
does
not
favor good
administration,
and
it
is
possible to
link
this
point
of
view
with
Harlow
and
Rawling's
metaphor
of
red-light
theorists.
9
This
approach
has
been
common
in
Spain
for
a
long
time,
as
well
as
in
other
European
countries,
as
detailed
by
Cassese's
explanation
of
the
principle
of
legality
as
a
"fetish."'"
But
a
new
viewpoint
is
growing
all
around Europe.
This
new approach
is
concerned
with
the
quality
of
decisions,
a
relatively new
paradigm
for
us,
but
well
established
in
the
United
States.
The
discretionary
choice
itself
is
relevant
for
administrative
law,
because
it
is
concerned with
good
decisions
and
with
good
administration.
It
is
important
that
public
administration
makes both
legal
and
correct
decisions,
with proper
reasoning
to
back
them.
This
is
important
be-
cause
people
demand that
such good decisions
be
made
and
they
want
to
partic-
ipate
in
decisions
that
affect
them most,
such
as
where
a
highway
should
be
constructed
or
where
a
nuclear
plant
should
be
built.
As
Braibant
has
graphically
pointed
out,
"Even
when
public
authorities
are
allowed
to
do
what
they
want,
they
cannot
do
whatever.""
That
is,
the proper
use
of
discretionary
powers
matters
to
public
law.
And
the
proper
use
of
discre-
tionary power
is
defined
by
the
idea
of
good
administration.
This
concept
can-
not
be
a
pass
par
tout,
but
has
to
have
its
own
meaning
as
a
legal
technique.
9.
See
CAROL
HARLOW
&
RICHARD
RAWLINGS,
LAW
AND
ADMINISTRATION
29
(1997),
as
well
as
commentary
on
this book
in
Michael
Taggart,
Reinvented Government,
Traffic
Lights
and
the
Con-
vergence
of
Public
and
Private
Law--Review
of
Harlow
and
Rawlings:
Law
and
Administration,
44
PUB.
L.
124
(1999).
10.
SABINO
CASSEsE,
LAS
BASES
DEL
DERECHO
ADMINISTRATIVO
(1994).
11.
Author's
translation.
See
Sieur
Lambert, Braibant's
Conclusions
"CE,"
27
L'ACTUALITA
JURIDIQUE:
DROIT
ADMINISTRATIF
53
(1971).