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02/03/2015
1
© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Good Administration
through
M...
02/03/2015
2
© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
II. SIGMA’s recent support to...
02/03/2015
3
© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
III. Major shortcomings of th...
02/03/2015
4
© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
WHAT ARE THE IMPROVEMENTS?
IV...
02/03/2015
5
© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
SUPPLEMENTARY NOTES ON THE
ME...
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Good administration through modernised administrative procedures - Wolfgang Rusch Pristina 3 February 2015

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Presentation by Wolfgang Rusch, SIGMA expert, on "Good administration through modernised administrative procedures", Pristina 3 February 2015.

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Good administration through modernised administrative procedures - Wolfgang Rusch Pristina 3 February 2015

  1. 1. 02/03/2015 1 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Good Administration through Modernised Administrative Procedures Novelties in the new Draft Law on General Administrative Procedures prepared by the Ministry of Public Administration with support of the EU through SIGMA Presentation by Wolfgang Rusch at the Public Consultation Conference Pristina, 3 February 2015 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU INTRODUCTION • SIGMA support to IPA countries’ efforts of modernising the system of administrative procedures • Why a new Law on General Administrative Procedures? • What are the improvements of the new draft legislation for Kosovo*? *This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence. © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU SIGMA support to IPA countries I. SIGMA’s mandate 1. Basics: • SIGMA is a joint initiative of the (EU) and (OECD), principally financed by the EU. • SIGMA was launched in 1992 to support Central European countries in their public administration reforms; support has subsequently been extended to other countries, including all ten 2004 and two 2007 EU entrants. • In 2015 working in IPA* countries: Albania, Bosnia and Herzegovina, Kosovo, Montenegro, the former Yugoslav Republic of Macedonia, Turkey and Serbia. • As a Division of the OECD’s Directorate for Public Governance and Territorial Development, SIGMA is able to draw on the Directorate's expertise and on its networks in OECD member countries. * IPA = Instrument for Pre-Accession Assistance; since June 2008 working also under the European Neighbourhood and Partnership Instrument (ENPI) © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU I. SIGMA’s mandate (continuation) 2. Four areas of activities: • Administrative Law and Justice, Civil Service, Public Integrity • Public Financial Management, External Audit • Public Procurement • Policy-making and Co-ordination Capacities
  2. 2. 02/03/2015 2 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU II. SIGMA’s recent support to drafting a new Law on General Administrative Procedures (LGAP)  Croatia: LGAP adopted by Parliament; in force since 1 January 2010  Albania: First draft LGAP finalised in March 2011; currently in the parliamentary procedure; adoption expected in 2015  Serbia: First draft LGAP submitted to the Government in February 2012; currently being redrafted; adoption by Government expected in 2015  Montenegro: Drafting process started in 2011; currently in the parliamentary procedure; adoption expected in 2015  Macedonia: Drafting process started in July 2012; currently in the parliamentary procedure; adoption expected in 2015  Kosovo: Drafting process started in September 2012; adoption by Parliament expected in 2015 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHY A NEW LGAP? I. First phase of reforms (basically in 1995 - 2005) 1. Albania:new law in 1999 2. Other countries: (marginal) changes of the former Yugoslav Law © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU II. Reasons for particular reluctance in former Yugoslav countries to draft a new LGAP 1. Long tradition: Austrian Law of 1925, adapted in pre-communist Yugoslavia (1930) and adjusted twice in 1956 and 1986 2. Good quality: In 1956, the Yugoslav Law belonged to the most modern European legislation in this field. 3. High estimation: Fifty years later it is still respected by the legal community as a model of a very good piece of legislation. © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHY A NEW LGAP? (continuation) III. After the first phase of reforms: Still major shortcomings of the status of legislation 1. Scope of the law is too narrow. • Confined to the unilateral administrative act • No real acts • No administrative contracts • No regulation related to the delivery of public services
  3. 3. 02/03/2015 3 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU III. Major shortcomings of the status of legislation after the first phase of reforms (continuation) 2. Complicated, formalistic, lengthy procedures (patterned on court procedures). 3. The principle of citizen orientation is hardly reflected (e.g. participation of citizens in decision making process is insufficient). 4. Novelties of the EU Services Directive (EU Directive 2006/123/EC) not included: • IT based communication (e-administration) • Point of single contact approach • Administrative silence © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU III. Major shortcomings of the status of legislation after the first phase of reforms (continuation) 5. The system of administrative legal remedies is incomplete, ineffective and inefficient. 6. The principles of good law making are not adequately followed. Major shortcomings: – Overregulation of technicalities – casuistic approach – Repeated mending of the old text during first phase of reforms generated an imperfect and illegible patchwork © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT ARE THE IMPROVEMENTS OF THE NEW DRAFT LAW ON GENERAL ADMINISTRATIVE PROCEDURES FOR KOSOVO? I. Wider scope ensuring effective legal protection against all forms of administrative actions Basic provisions: Article 2 “Scope of the Law” Article 13 ”The right to legal remedies” Article 53 “Administrative contract and its admissibility Article 62 “Real Act” Article 63 “Provision of public services of general interest” © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT ARE THE IMPROVEMENTS? II. Efficient, simple, speedy procedures; less formalities Basic provisions: Article 10 “Principle of efficiency of the administrative proceeding” Article 26 “Delegation of decision making competence” Article 33 “Point of single contact” Article 34 “Administrative assistance” Article 66 “Form and content of the request” Article 68 “Wrongfully submitted request” Article 109“Forms of notification” Article 131“Procedure of reviewing the appeal by the competent public organ” III. Transposition of the principle of proportionality Basic provision: Article 5 “Principle of proportionality”
  4. 4. 02/03/2015 4 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT ARE THE IMPROVEMENTS? IV. Legal limits of discretionary decisions Basic provisions: Article 4 “Principle of lawfulness”, paragraphs 3 and 4 dealing with discretion Article 45 “Unlawfulness of an administrative act” V. Citizen’s right to receive advice and support from the administrative authority Basic provision: Article 4 “Principle of lawfulness”, paragraphs 3 and 4 VI. Transparency of the administrative decision making process Basic provision: Article 9 “Principle of open administration” Article 85 “Right of the party to inspect files and receive information” © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU VII. Legal protection against administrative silence Basic provisions: Article 93 “Fictitious administrative act”, paragraphs 3 and 4 dealing with discretion Article 133 “Appeal against administrative silence VIII. Regulatory framework for a point of single contact approach Basic provision: Article 33 “Point of single contact” IX. Possibility of IT based communication between administration and citizen Relevant articles: 33, 39, 40, 54, 66, 69, 75, 85, 99, 109, 117, 118, 121, 159 WHAT ARE THE IMPROVEMENTS? © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT ARE THE IMPROVEMENTS? X. Impartiality of public officials Basic provision: Article 129 “Cases of exclusion from proceeding” XI. Ex officio investigation of facts Basic provision: Article 79 “Ex-officio investigation” XII. Comprehensible and detailed statement of grounds obligatory for written administrative acts Basic provision: Article 41 “Reasoning of a written administrative act“ © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU WHAT ARE THE IMPROVEMENTS? XIII.Legal definition of the administrative act clarifying the difference between material and procedural administrative decisions Basic provision: Article 37 “Definition of an administrative act”
  5. 5. 02/03/2015 5 © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU SUPPLEMENTARY NOTES ON THE METHODOLOGY OF THE DRAFTING PROCESS Conclusion Establishing a better system of administrative procedures – is a societal process – requires a convinced and convincing avant-garde within the country – is a very complex task – and TAKES TIME © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Thank you for your attention and patience!

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