Good Administration and Administrative Procedures

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.

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) 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 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 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. 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.