Адміністративне правo і процес
ISSN: 2227-796X (Print), ISSN: 2617-8354 (Online)

Науково-практичний журнал‚ заснований Київським національним університетом імені Тараса Шевченка

АДМІНІСТРАТИВНІ ПРОЦЕДУРИ НАДАННЯ АДМІНІСТРАТИВНИХ ПОСЛУГ У КРАЇНАХ ЄВРОПЕЙСЬКОГО СОЮЗУ ТА В УКРАЇНІ (друкується англійською мовою) - Михайлюк Я. Б.

 

    The article investigates administrative procedures of rendering administrative services in the European Union and Ukraine. Special attention is devoted to compare general grounds of rendering administrative services and to formulate proposals for improvement of domestic legal regulation taking into account positive European experience.

 earing in mind the European integration direction of the internal and foreign policy of Ukraine and the necessity of gradual adaptation of Ukrainian legislation to the legislation of the Member States of the European Union (hereinafter — the EU) in accordance with the general European standards, a significant part of attention should be paid to the legal regulation of rendering of administrative services and administrative procedure.

 

The provision of administrative services  to citizens  or legal entities shall be made pursuant to the modern forms and standards of administrative services provision that were developed by the European administrative legal doctrine and practice that reflect the essence of a «public and service»state.

 

Both   Ukrainian   and   foreign   scholars,   such     as V.  Averianov,  K.  Afanasiev,  Y.  Bytiak,  V. Beschastnyi, I.    Holosinchenko,    A.    Komziuk,    T.      Kolomoiets, O.  Kuzmenko,  O.  Lahoda,  I.  Lazariev,  H. Pysarenko, V. Tymoshchuk, Y. Tykhomyrov etc., devoted their scientific researches to the question of investigation of the legal regulation of administrative services provision.

 

One should mention among European scholars who made their research in the area of legal regulation of public services and relations between the public administration authorities and private persons, such researchersasJ.Bell,J.Gyford,H.C.H.Hofmann,W.  Weiss, V.   Vankovich,  B.  Delzangles,  S.  Cassis,  W.   Capman, M. Clark, M. Knauff, P.  Kotler, M. Labous, O. Meyer, J. Murdoch, A. Mowbray,  C.  Pateman, T.   Paez,  M.  Seneviratne,  R.   Cirdan, J. Simmonds, K. Friedman, R.  Forrest,

 

E.   Forsthoff,   C.   Forsyth,   L. Fuller, H.  Heinze,  H.  Harris,  J.   Henderson, J. Schwarze, F. Schnapp, etc.

 

The aforementioned scholars made significant contribution to the investigation of procedures of administrative services provision; however, the issues concerning the administrative procedures in the area of administrative services provision, particularly in  terms  of legal comparison of the EU and Ukraine, require a separatestudy.

 

The main objective of this article is to compare general grounds of rendering administrative services and to formulate proposals for improvement of domestic legal regulation taking intoaccount positive Europeanexperience.

 

Thetasksofthepresentarticleare:to review theoretical approaches to understanding of the concept of administrative procedure in the EU MemberStates andUkraine;todescribemodernaspects of administrative services rendering in EU; to formulate proposals and recommendations concerning  improvement of domestic legal regulation respecting law-making and law enforcement practices of administrative procedures in the processofadministrativeservicesprovision. The codification of administrative procedure legislation became one of the most difficult directions in the administrative reform. The abovementioned direction has not been accomplished throughout a relatively long time of implementation of the reform. The current situationiscausedbymanyfactors,such ascomplexityandversatilityofrelations toberegulated,aswellasbyalarge amount of legislation to be reviewed. However, the most serious problem that resulted in delay of codification in administrative procedure legislation, isthe lack of interest of the State, public authorities, their officials in the adoption oftheAdministrativeProcedureCodeof Ukraine (hereinafter — «APC») since, in a new legal environment built in accordance with European principles of good administration, it would lead  to thesituationwhenpublicofficialswould havelimitsonuseoftheirprivilegedposition in the society in comparison to private persons. A clear-cut regulation of administrative procedure will put activities of public authorities into a definite legal framework, which infringement would be the ground for challenge of such actions, inactivity or public authority’s decision, or, in determined cases, would result in legal liability provided by thelaw.

 

An academic discussion concerning understanding and correlation among administrative process, administrative procedure, and  administrative  proceedings is a very widespread in domestic legal literature. «Administrative procedure» is usually meant as «the order of consideration of individual administrative cases and subsequent decision delivery by administrative authorities» [3, p. 24].

 

The administrative procedure is not homogeneous, since it includes different kinds of administrative proceedings. In particular, V. B. Averianov defines following procedural institutes: an «institute of internal organizational administrative proceedings», an «institute of service administrative proceedings»and an«instituteofjurisdictionaladministrative proceedings» [1, p. 910]. In  view of the aforesaid, administrative services proceedings should be considered as service administrative proceedings.

 

Administrative  procedure  has  its own structure and consists of phases that should be understood as «a relatively isolated, limited in time and logically connected array of procedural actions  that are intended for the achievement of a certaingoalandforthefulfillmentofrelative tasks of certain administrative proceedings; this array shall also have a range of certain subjects and be implemented in procedural protocols» [2, p.214].

 

As a general rule, administrative procedure is divided into following basic and optional phases: 1) a phase   of initiation of administrative proceedings (previous phase); 2) a phase of hearing the case; 4) a phase of adoption of a decision in the case; 4) a phase of appeal of the decision adopted by an administrative authority (facultative phase); 5) a phase of implementation  of the adopted decision. The abovementioned phases of administrative procedure are distinctive for the whole administrative services provision procedure ingeneral.

 

There is no unified administrative procedure of administrative services provision since administrative services are quite various. Accordingly,  procedures of different administrative services provision also vary. For instance, registration of ownership of real estate is an administrative service which is done within registration proceedings; and an administrative service concerning the issue of a permit for placement of an outdoor advertisement object is done within permission proceedings. Nevertheless, the establishment of general requirementsto the procedure of administrative services provision is possible and necessary.

 

The understanding of the notion of administrative procedure  in  academic research and legislation of the EU Member States is quite ascertained.  First of all, it could be explained by the existence of the developed and unified administrative procedure legislation in the most of MemberStates.

 

The sources of European legal literature define an administrative procedure as «the formal path, established in legislation, which an administrative action should follow»; «usually, an administrative action has to be  carried  out through a number of steps, which should be known in advance» [11, p. 3]. Also   the   administrative   procedureis «defined loosely, to mean no more than a course of action, or steps in implementing a policy, or part of an administrative process» [7, p. 2].

 

In the Model Rules on EU Administrative Procedure  developed  by the Research Network on EU Administrative   Law   (hereinafter    — «ReNEUAL»), administrative procedureisdefinedas«theprocessbywhich a public authority prepares and formulates administrative action» [8, p. 46] which, in turn, «means activity of a public authority as results in: a legal ly binding non-legislative act of general application, a decision, a contract, mutual assistance, information management activities» [8, p.46].

 

Hence, the notion of administrative procedural activity is relative only for public authorities performing their duties regarding relations with privatepersons when it results in the adoption of an administrative protocol orconclusion of an administrative contract. Theaforementioned understanding of administrative procedure laid the ground for laws and administrative procedure codes of the EU Member States. Activities ofadministrative courts with relation to consideration and resolution of cases are provided by other regulatory administrative acts and do not concern administrativeprocedure.

 

As opposed to Ukrainian experience, many European countries adopted, as it was already mentioned, codes or laws regulating administrative          procedure. Significant attention is paid to the unification of administrative procedure legislation within the whole European Union. Particularly,          the aforementioned ReNEUAL that is functioning «with the goal of providing supporttondeavours of codification ofadministrativeprocedure at EU level, has opted fortheformula ‘statements andrestatements’for its work, which is intended asasupportto  codification  by  the  legislator»[12, p. 17]. Moreover, the coordinators of the above-mentioned Network givespecial consideration, in particular, to the administrative procedure law of the EU and to the question of adoption of the EUAdministrativeProcedureAct.

 

Staff members of the ReNEUAL stress the necessity of adoption of the EU Administrative Procedure Act and note that «ageneral codification of EU administrative law might contribute to simplification and clarification but only if it took into account the conflicting needs of general applicability of its principles and rules and of adaptability to sectorial differences. Furthermore, a general codification of EU administrative law which would be limited to  EUinstitutions, bodies, offices andagencies would nevertheless have to take into account the needs of cooperation with Member States’ institutions, bodies, officesandagenciesinalmostallEUpolicy fields» [13, p.10].

 

Nowadays public administration activities without a Law ofAdministrative Procedure are regulated by «separated procedural norms in primary and secondary law and shaping of the general principles of administrative procedure by the Court of Justice» [9, p.107].

 

Special attention  during  finalization of Ukrainian APC  should  be  paid to the ReNEUAL Model Rules on Administrative Procedure that consist of sixbooks,namely:1)GeneralProvisions;

 

2) Administrative Rulemaking; 3) Single Case   Decision-Making;   4)  Contracts;

 

5) Mutual Assistance; 6) Administrative Information Management. The aforementioned project considers peculiarities of legal regulation of administrative procedures of most EU Member States with reference to the specificity of legislation of such supranational formation as the European Union.

 

A majority of European countries adopted and made effective legal acts directed at management of relations of private persons and public authorities. Such kind of legal acts usually precede adoption of specialized legislation and set general principles of public authorities’ activities.

 

Nevertheless, the Ukrainian approach to legal regulation ofadministrative procedures is vice-versa, since,first of all, the government adopts specialized  legislation  (The  Law  ofUkraine

 

«On Administrative Services»), and the general  legal  act  (The  Administrative Procedure Code of Ukraine) hasn’tbeen adopted yet. Furthermore, a lot of legal practitioners advocate for simplified legal regulation of procedural relations concerning activities of public authorities.

 

Accordingly, it is possible to compare the current situation to the legal regulation of judicial process, since the most accurate requirements of procedure codes concerning the actions of a court during consideration of cases ensure the observance of rights of the process participants, equality before the law and a court, participation in court proceedings, etc.

 

The legal regulation of administrative procedures should be given the same importance as the legal regulation of the judicial process. If public authorities would have strictly prescribed rules of their activities, including administrative services provision to citizens, and if in the event of violation of such rules the legal liability would be provided, the procedure of administrative services provision will be duly conducted. This is the reason why the requirements concerning  regulation of administrative procedures shall not be simplified significantly in comparison to the rules of judicial process.

 

In the context of procedural requirements to administrative services provision, the relevance of the research in the field of procedural principles of relations of public authorities with private persons if very high, since the modern understanding of those principles should inevitably  be  used  in  the draft of the APC of Ukraine. The above-mentioned principles constitute, actually, the general requirements to administrativeprocedures.

 

Since 2005 the Working Party of the Project Group on Administrative Law, established on the basis of the Council of Europe, has fine-tuned and improved the principles of public authorities activities that were laid out in the Code on Good Administration. Material and procedure requirements concerning public administration activities, including the provision of administrative services, are enshrined in the aforementioned Code on Good Administration that was adopted by the Council of Europe. The material requirements include such requirements as «lawfulness, equality,impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy and transparency»[10].

 

The fundamental procedure requirements that are enshrined in the Code on Good Administration, are as follows: requests from private persons, the right of private persons to be heard with regard to individual decisions, the right of private persons to be involved in certain non-regulatory decisions, the contribution of private persons to costs for administrative decisions, requirements to the form of administrative decisions,  the order of publication of administrative decisions, requirements concerning the entry into force of administrative decisions, peculiarities ofexecution of administrative decisions, the order of bringing changed to individual administrative decisions[10].

 

The aforementioned principles and requirements laid down in the Code on Good Administration, shall be considered in time of the improvement of the APCofUkraine;particularly,inrelation to the principle of legal    determination and of the order of adoption, amendment, and repeal of the legislation.

 

Also it is necessary to pay attention to the provisions of Article 298(1) of the Treaty on the Functioning of the European Union (TFEU), which is an innovation of the Lisbon Treaty, providing that, in carrying out their missions, the institutions,  bodies,  offices and agencies of the Union  shall  have the support of an open, efficient and independent European administration [6]; and to Article 41 of theCharter of Fundamental Rights of the European Union enshrining the right to good administration by granting to everyperson the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union[5].

 

Some procedural rules concerning provision of  administrative  services are enshrined in Article 9 of the Law of Ukraine «On Administrative Services», inter alia: the methods of administrative services provision; jurisdiction of cases concerning provision of administrative services; the form of an application and the order of its submission; requirements to documents and information required of the applying person; the order of adoption of documents and information by an authority providing administrative services from other public authorities; the order of obtainment of application forms, etc.[4].

 

First of all, it is essential to draw attention to certain  problematic  issues that arise from the provisions of the above-mentioned article  of  the  Law of Ukraine «On Administrative Services». Particularly, it is an absence of   amendments   to   special   lawsthatdefine an order of provision of administrative services of some particular kinds. Those laws are as follows: the Law of Ukraine «On State Registration of Legal Persons and Private Entrepreneurs»,   the   Law   of Ukraine

 

«On  Licensing  of  Particular   Kinds of Business Activity» and the Law of Ukraine «On  the  System  of  Permits  in the Area of Business Activity». In  the event of the existence of legal collisions between the aforementioned laws and the Law of Ukraine «On Administrative Services», a public authority would tend to apply the way of behavior that is more favourable to  it.

 

Secondly, the legislator restricted unreasonably  in  the  Law  of   Ukraine «OnAdministrativeServices»themethods of application for provision of administrative services; many other states provide a significantly wider range of such methods. Therefore, it would be reasonable to enshrine in the Law of Ukraine «On Administrative Services» the possibility of application through telephone, mobile communications or Skype concerning particular services that could be provided on the basis of oral application; also it would be reasonable to establish such ways of administrative services provision as mobile offices and delivery of services at the place of citizens’residence.

 

Thirdly, it is worth mentioning that  a positive issue that was indicated inthe Law is the prohibition of demanding of citizens of additional documents or information that are not provided by law for the sake of provision of administrative services. Nevertheless, in some situations, public authorities demand to submit  additional  documentsreferring to some departmental acts; this infringes the rights of citizens and creates additional mechanisms of corruption. Therefore, the list of documents that shall be submitted by an applying person should be enshrined in the law solely and have to be exhaustive.

 

Fourthly, there are still problems with access of applying persons to public authorities with the aim of acquisition of administrative services. First of all, it is caused by limited office hours for citizens. The legislation established the requirements to the office hours of the centers of administrative services provision that, in principle, correspond to practices of the Western Europe; but, bearing in mind that a significant number of services is provided directly by public authorities, it is necessary to implement provisions concerning the minimum time of office hours for citizens at authorities that directly provide administrative services. At least, office hours should not be less than a general working time of such an authority;   it is a widespread practice that some authorities provide administrative services to citizens in a limited period of    time,

 

e.g.oneortwodaysinaweekoftwoor three hours in aday.

 

Consequently, the codification of legislation in the area of administrative procedures is of great importance for the sake of regulation of administrative services provision, since administrative procedural legislation is  the key factor that  defines  principles of relations between public authorities and citizens. Nevertheless, the adoption of the Law of Ukraine «On Administrative Services» did not  settle  a  number  of  lacunas  in  the  legal regulation of administrative procedural relations that could be solved only by the adoption of the APC of  Ukraine.

 

In order of justification of the codification of legal regulation of administrative procedures, it is necessary to draw attention to the principle of «innovative codification» that was designed in European  legal  theory  and  is used during the elaboration of  the EU    Administrative    Procedure   Act.

 

«Innovative codification has the advantage that it allows resolving contradictions and filling gaps» [12, p. 1617]. The comparison of European and Ukrainian doctrines of administrative law has shown that the understandingof the notion of administrative procedure is duly formed in the European doctrine and comprises the area of legalrelations between public authorities and private persons concerning the performance of administrative  actions.   Respectively,  it is important for the Ukrainian doctrineofadministrativelawtoformastable notion of administrative procedure that should be understood as the order  of consideration and decision by public authorities of individual administrative cases. The administrative services provision is not homogeneous and is performed through different administrative proceedings, namely: registration proceedings, permission proceedings, licensing ones,etc.

 

Currently, the legal regulation of administrative services provision in the EU is directed at the unification of administrative procedures at the level of the Union as a whole by means of the adoption of the EU Administrative Procedure Act on the basis of the effective  provisions  of  the  primary and secondary legislation of the EU, judicial practice of the Court of Justice of the EU, the European Court of Human Rights and pursuant to the aforementioned recommendations of the Council of Europe.

 

Taking into account the foreign experience of legal regulation of administrative procedures, it is necessary, for the sake of due regulation of the procedure of administrative services provision in Ukraine, to adopt the APC of Ukraine which would also  comprise  the area of administrative services provision. The existing drafts of the APC of Ukraine are outdated  and  have  to be improved by the development of a new version of the aforementioned act of codification with regard to the modern standards of functioning of good administration; particularly, the attentionshouldbepaidtotheCodeonGood Administration proposed by theCouncil of Europe, to the examples of legal regulation in the EU Member States on the basis of their codes and laws. The most important issues of the foreign experience that should be considered are as follows: the issue of legal regulation of administrative protocols (requirements concerning their form, the order of adoption, amendment, withdrawal and loss of the effect) and the issue of realization of the administrative procedure (the order of acceptance of applications and documents from private persons, the consideration of them, the participation of private persons in the process of consideration),etc.

 

LIST OF LITERATURE:

 

1.     Авер’янов В. Б. Значення адміністративних   процедур   у   реформуванні

 

адміністративного права / В. Б. Авер’янов // Часопис Київськ. ун-ту права. — 2009. — № 3. — С. 814.

 

2.    Административное право Украины: [учебник для студентов высш. учеб, заведений юрид. спец.]; 2-е изд., перераб. и доп. / [Ю.П.Битяк,В.В.Богуцкий,В.Н.Гаращук и др.] ; под ред. проф. Ю. П. Битяка. Харьков: Право, 2003. 576с.

 

3.     Адміністративна процедура та адміністративні послуги. Зарубіжний досвід і пропозиції для України / авторупорядник В. П. Тимощук. — К. : Факт, 2003. — 496с.

 

4.     Про адміністративні послуги:Закон України від 06.09.2012 р. № 5203-VI // Відомості Верховної Ради (ВВР). — 2013. — № 32. — С. 409.

 

5.     Charter Of Fundamental Rights Of The European Union 2012/C 326/02 // Official Journal of the European Union C 326/391, 26/12/2012.

 

6.          Consolidated versions of the Treaty on European  Union  and  the  Treaty  on  the Functioning of the European Union // Official Journal of the European Union C 326, 26/10/2012, P. 0001 —0390.

 

7.     Harlow C., Rawlings R. Process and Procedure in EU Administration / Hart Publishing, Oxford and Portland, Oregon, 2014. — 351 p.

 

8.    Hofmann H. C. H., Schneider., Ziller J. Model Rules on EU Administrative Procedure [Electronic resource] / ReNEUAL, 2014. 335 р. Available from: http://www.reneual. eu/publications/ReNEUAL%20Model%20 Rules%202014/ReNEUAL-%20Model%20 Rules-Compilation%20Books%20I_VI_201409-03.pdf / the Latest Access09.12.2015.

 

9.              Nieto-Garrido E., Delgado I. M. European Administrative Law in the Constitutional Treaty / Hart Publishing, OxfordandPortland,Oregon,2007.—210p.

 

10.    Recommendation CM/Rec (2007)7 of theCommitteeofMinisterstomemberstateson good administration [Electronic resource]. Available from: https://wcd.coe.int/ViewDoc. jsp?id=1155877/ the Latest Access09.12.2015.

 

11.     Rusch W. Administrative Procedures in EU Member States / Conference on PublicAdministrationReformandEuropean Integration // Budva, Montenegro, 2009. — 10 p.

 

12.     Ziller   J.   Alternatives   in   drafting  an  EU  Administrative  ProcedureLaw

 

/ Jacques Ziller // European Parliament, Brussels, 2011 [Electronic resource]. — Available from:http://www.europarl.europa. eu/RegData/etudes/note/join/2011/462417/IPOL-JURI_NT(2011)462417_EN.pdf / the

 

Latest Access 09.12.2015.

 

13.     Ziller J. Towards Restatements and BestPracticeGuidelinesonEUAdministrative Procedural Law. Note to the European Parliament´s Committee on Legal Affairs [Electronic resource] / (October 2010). — Available from: http://www.europarl.europa.eu/RegData/etudes/note/join/2010/425652/ IPOL-JURI_NT(2010)425652_EN.pdf / the LatestAccess09.12.2015.

 

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