Slajd 1

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Basic Terminologyin the Field of Public
Administration
dr. hab. Jerzy SupernatInstitute of
Administrative Sciences University of Wroclaw
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Basic Terminology in the Field of Public
Administration

• administrative law
• public interest
• state ( government)
• decentralisation
• supervision
• forms of decentralisation
• self-government
• territorial self-government
• special self-governments
• organ of public administration
• offices of public administration
• types of organs
• tasks and competences
• categories of tasks
• functions of public administration
• administration of order
• administration of provision
• administration of ownership
• administration of development

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Administrative law
• modern state cannot function without public
  administra-tion
• public administration cannot function without
  admini-strative law
• administrative law is not law of administration

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Zofia Duniewska Administrative law is a body of
public law that deals with the constitution and
functions of public administra-tion as well as
with the rights and duties of persons getting
into a relationship with administration. Its main
purpose is to protect the common good.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Jacek Jagielski
1/2 Administrative law is
one of the most complex areas of the Polish legal
system. Today it is considered a key ele-ment of
the public law category, although it was once
as-sociated with the entire domain of public law.
Its regula-tions concern almost all areas of life
as well as the activi-ties of individuals and
certain other subjects functioning within the
framework of the state. Administrative law
provisions are thus some of the most important
components of the entire legal system.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• 2/2
• Administrative law is composed of two kinds of
  rules
• The rules on the organization and functioning of
  the administrative apparatus and other bodies
  designed to perform public administration duties,
  as well as on the conduct of representatives of
  the administration and their powers over
  administered subjects outside the administrative
  apparatus.
• The rules governing the rights of the
  administered subjects vis-à-vis the
  administration and the rights and duties of
  natural and legal persons and other subjects in
  various areas toward whom the interest and
  activity of public administration is directed.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• It is widely accepted that administrative law
• is the most extensive and flexible body of law
  controlling the legal situa-tion of both
  individuals and almost all other subjects
  operating within the state
• usually contains imperative norms (absolutely
  binding norms ius co-gens)
• is usually supported by public power
• has a broad scope
• is difficult to codify
• has rules which are inserted in acts of
  different rank, enacted by various organs, in
  different periods of time
• is not politically neutral (in the words of
  Ronald Dworkin it is a political enterprise)
• is difficult to interpret
• includes local law binding on the territory of
  the organ issuing it

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Internal division of administrative law
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Europeanization of administrative law vs.
  European administrative law
• in the first case European law influences the
  content of national administrative law which is
  the basis of function-ing of public
  administration
• in the other case the norms of European law form
  the direct legal basis for functioning of public
  administration

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Public interest The public interest, arising from
the needs for common good, is, in modern liberal
democracy, the only justifica-tion for any
intervention of public administration in the
matters of individuals and non-public organisms
set up by individuals and/or other organisms.
This is due to the fact that the public interest
is the only justification for any intervention of
public law, including administrative law, in
matters which are either subject to the civil
(private) law or outside the limits of the law.
Art. 1 of the Constitution The Republic of
Poland shall be the com-mon good of all its
citizens.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
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Hubert Izdebski Public interest England Before
the emergence of what is sometimes called modern
interventionist administrative state, the
judge-made rule was that owners were entitled to
prefer their own interest to the common good
(freedom of property and freedom of contract were
important issues JS). Since the second half of
the 19th century there has been a growth of
responsibilities of the state in the social and
econo-mic fields, introduced by means of
legislation (on factory pro-tection, housing,
environment protection, education, health care,
etc.), which evoked the public interest.
Humanitarian and the resulting social principles
have been more and more prevailing over
individualism, which was typical of England of
the 18th century and the first half of the 19th
century.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
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Public interest the European continent On the
European continent, though the point of departure
for the evolution had been quite different (ius
politiae enjoyed by the absolute monarchs, and,
therefore, a recognized predo-mination of the
public interest), the liberal, individual
thinking triumphed in the 19th century, with the
same convictions con-cerning the role of the
freedom of property and the freedom of contract.
Since that time, however, modern
interventionist administra-tive state has been
being built. This meant more and more ex-ceptions
from rules of the private law, justified by the
common good and/or the public interest.
Moreover, communist and fascist regimes
succeeded, though temporarily, in restoring, and
even monopoly, of public interest.
dr. hab. Jerzy Supernat
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Child labour
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Child labour
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Development of modern interventionist
administrative state
Basic Terminology in the Field of Public
Administration

• freedom of property
• freedom of contract

• freedom of want
• freedom of disease

vs.
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Basic Terminology in the Field of Public
Administration
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• Ideas of less state and of New Public
  Manage-ment, typical of the 1980s, served as a
  break put on an unlimited development of modern
  interventionist admini-strative state.
• Their practical role, however, was to
• rediscover the place of civil-law rules in
  society and in the government
• focus on the necessity of searching for the
  existence of the public interest while thinking
  about the states inter-vention
• rather than to stimulate abandoning the idea of
  such state.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• State ( government)
• state in a broader sense the whole public power
  on a given territory
• state in a strict sense only a centralised
  public pow-er system
• Art. 7 of the Constitution
• The organs of public power shall function on
  the basis of, and within the limits of, the law.
• Art. 10 of the Constitution
• The system of government of the Republic of
  Poland shall be based on the separation of and
  balance between the legislative, executive and
  judicial powers.
• Art. 163 of the Constitution
• Local government shall perform public tasks not
  reserved
• by the Constitution or statutes to the organs of
  other public powers.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Decentralisation
• Decentralisation is a means of
• putting a certain public entity and/or a certain
  public activity out of a fully centralised
  direction (control in the English sense), and
  therefore out of the state administra-tion (but
  not out of the system of public powers)
• giving such public law entity a competence of
  autono-mous carrying out such activity
• on its own behalf
• on its own responsibility
• The counterbalance to decentralisation should be
  super-vision.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Decentralised administration is not the state
admini-stration in the strict sense of the
state. By contrast, in the time of real
socialism all public admi-nistration was
officially the state administration, but there
was no such phenomenon which now could be called
de-centralisation. It is quite comprehensible as
real socia-lism relied on centralisation, and,
even more, on concen-tration of the power.
Centralised state administration was only an
instrument in the hands of the highly centralised
apparatus of the Communist party.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Supervision
• Supervision (in its Polish sense) is a specific
  kind of competen-ce of an authority higher than
  that supervised, which means
• less than competence of direction (control in
  the English sen-se)
• more than competence of control (control in
  Polish sense, i.e. right of simple examination
  and evaluation of controlled activi-ties)
• Supervision means rights to apply allowed
  instruments of su-pervision (supervisory
  decision), but only after
• passing the procedure provided by the law
• proving that the activities supervised were not
  conforming to the standards provided for in the
  law

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Instruments of supervision are divided into those
  relating to
• organs (e.g. confirmation of the election,
  revocation or disso-lution)
• persons (e.g. suspension, dismissal,
  degradation)
• acts (authorisation to issue an act,
  confirmation, suspension, annulation / declaring
  illegality)
• Supervision can be made
• ex ante, before the supervised activity is
  actually undertaken
• ex post, with respect to what was already done
• In Poland legality (conformity with the law) is
  the only criterion of supervision over activities
  (general acts) of territorial self-government,
  and supervision is made only ex post.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Forms of decentralisation
• According to the classical public law theory of
  Central Europe there are four forms of
  decentralisation
• self-government
• public undertaking
• public enterprise
• public establishment (e.g. university, school,
  hos-pital, museum, library)
• delegation of public tasks to institutions of
  self-government, to enterprises, and to
  establishments, as well as to non-public
  institutions, in particular NGOs

dr. hab. Jerzy Supernat
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Public establishment
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Basic Terminology in the Field of Public
Administration

• Article 15 of the Constitution
• The territorial system of the Republic of Poland
  shall ensure the decentralization of public
  power.
• The basic territorial division of the State shall
  be determined by statute, allowing for the
  social, economic and cultural ties which ensure
  to the territorial units the capacity to perform
  their public duties.

• Basic territorial division of the Republic of
  Poland is indeed made for the purposes of
  decentralization. It consists of three units
• municipalities (gminy)
• districts (powiaty)
• regions / voivodships (województwa)

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• There are a variety of different
  arrangements which are often included in the
  discussions on decentralization. For example G.S.
  Cheema and D.A. Ron-dinelli have identified four
  major forms of decentralization
• devolution transfer of responsibility for
  governing, understood more broadly i.e. the
  creation or strengthening, financially or
  legally, of sub-national units of governments,
  whose activities are substantially outside the
  direct control of central government
• delegation assignment of specific decision
  making authority i.e. the transfer of
  managerial responsibility for specifically
  defined functions to public organizations (e.g.
  local governments) outside the normal
  bureaucratic struc-ture of central government
• deconcentration spatial relocation of decision
  making the transfer of some administrative
  responsibility or authority to lower levels
  within central government ministries or agencies
• divestment best treated as decentralization
  and it occurs when plan-ning and administrative
  responsibility or other public functions are
  transferred from government to voluntary,
  private, or non-governmental institutions with
  clear benefits to and involvement of the public

dr. hab. Jerzy Supernat
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H. Izdebski Devolution denotes a specific type
of decentralisation a transfer of a part of
previous competences of the central power to
macro-regional institutions.
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Basic Terminology in the Field of Public
Administration

• Self-government
• territorial (general) self-government
• special self governments

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Territorial self-government Territorial
self-government operates in all or in some units
of territorial division of the state it is
always present in municipalities (basic units of
territorial division) but more and more
frequently it is found at higher levels, which
is, in particular, the case of bigger states.
The contemporary principle is that diverse
levels of ter-ritorial self-government cannot be
in any way regarded as a hierarchical
organisation in particular, the respective
organs of higher level cannot reverse or change
decisions of lower organs.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Territorial self-government in Poland can be
  divided into
• local self-government
• the self-government of municipalities
• the self government of districts
• regional self-government or the self-government
  of voi-vodships
• Regional government is indispensable in any
  bigger uni-tary state inter alia due to regional
  policy of the European Union.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
European Charter of Local Self-Government
Article 3 Concept of local self-government 1.
Local self-government denotes the right and the
ability of local authorities, within the limits
of the law, to regulate and manage a substantial
share of public affairs under their own
responsibility and in the interests of the local
population. 2. This right shall be exercised by
councils or assemblies composed of members freely
elected by secret ballot on the basis of direct,
equal, universal suffrage, and which may possess
executive organs responsible to them. This
provision shall in no way affect recourse to
assemblies of citizens, referendums or any other
form of direct citizen participation where it is
permitted by statute. Article 4 Scope of local
self-government 3. Public responsibilities shall
generally be exercised, in preference, by those
authorities which are closest to the citizen.
Allocation of re-sponsibility to another
authority should weigh up the extent and nature
of the task and requirements of efficiency and
economy.
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Basic Terminology in the Field of Public
Administration

• Article 165 of the Constitution
• Units of territorial self-government shall
  possess legal personality. They shall have rights
  of ownership and other property rights.
• The self-governing nature of units of territorial
  self-government shall be protected by the courts.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Special self-governments
• professional self-government
• business self-government
• Article 17 of the Constitution
• By means of a statute, self-governments may be
  created within a profession in which the public
  repose confidence, and such self-governments
  shall concern themselves with the proper practice
  of such professions in accordance with, and for
  the purpose of pro-tecting, the public interest.
• Other forms of self-government shall also be
  created by means of statute. Such
  self-governments shall not infringe the freedom
  to practice a profession nor limit the freedom to
  undertake economic activity.

dr. hab. Jerzy Supernat
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Pharmacist in the 16th century.
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Basic Terminology in the Field of Public
Administration
Traditional self-government (autonomy) of
schools of higher education Art. 70.5. of the
Constitution The autonomy of the institutions of
higher education shall be ensured in accordance
with principles specified by statute.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Organ of public administration The state
administration (state in a broader sense) is
co-mposed of diverse elements but, as far as its
mission of representing imperium, i.e. the public
power competence that consists in ordering,
forbidding and/or allowing, is concerned, it is
organs of public administration that con-stitute
its essential components. The term organ is
typical of the Germanic approach to public
administration (in the field of public law it
reflects the Germanic civil law concept of the
organ of legal person). In the French and the
English tradition the notion of authority
prevails over the concept of organ.
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Basic Terminology in the Field of Public
Administration

• Exemplary organs of public administration in
  Po-land
• the minister
• the voivod
• the mayor of municipality
• Nota bene the term organ is not used to the
  ministry, the voivod office or the municipality
  office, which can be defined as offices of the
  respective organs.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration
Offices of public administration Offices have no
powers of their own, as they are only an
auxil-lary apparatus of their chiefs the organs
they serve. Never-theless employees of offices
may express the imperial will of the public
power. They may do that if it is delegated to
them (such delegation is known in Poland as
internal deconcentra-tion) by their respective
chief as the organ of public administra-tion, and
only on his/her/its behalf. Art. 268a of the 1960
Code of Administrative Procedure The organ of
public administration may, in written form,
authorise employees of the organisational unit
they direct to settle on a solution to a given
kind of matters, in particular to issue on its
behalf ad-ministrative decisions, procedural
decisions, and certificates.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Types of organs
• unipersonal (single-person), i.e. composed of
  one per-son
• collegial (board), i.e. composed of a number of
  persons
• In contemporary public administration, the model
  of uniperso-nal organs is predominant, although
  in each national admini-strative system there are
  also collegial organs
• at the top of administrative hierarchy
• in the main decision-making authorities of
  territorial self-government (councils elected by
  the people)
• in the authorities of public audit

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Tasks and competences
• scope of activity public tasks
  legal competences
• the term tasks refers to the scope of
  administrative activi-ties.
• the term competences concerns authorisation of
  a given organ to act, within the field of its
  appropriate tasks, by means of specific legal
  forms of activity attributed to it by law. It
  means
• an expressly and legally bestowed power to
  decide on a given matter or issue of the public
  interest in a given legal form
• not only a right but also an obligation binding
  the compe-tent organ

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Hard competences administrative acts
• Imperium solutions to problems arising within the
  sphere of legal competence of an organ of public
  administration are commonly called administrative
  acts. There are
• normative administrative acts (administrative
  regula-tions) to enter into force, they have to
  be published (in Poland in the Journal of Laws or
  in the Voivodship Official Journals)
• individual administrative acts (administrative
  decisions) to have the legal effect, they have
  to be formally deliver-ed to a given party or, at
  least, formally presented to it

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Categories of tasks
• tasks of the state in strict sense in Poland
  tasks in the field of governmental administration
  (zadania z zakresu administracji rzadowej)
• proper tasks (zadania wlasne) of
  self-government, esp. tasks of units of
  territorial self-government
• commissioned tasks (zadania zlecone)
  transferred by an act of Parliament
• entrusted tasks (zadania powierzone)
  transferred by virtue of an agreement concluded
  between a competent organ of the state
  administration and an authority of decentralised
  administration
• In Poland, since the 1997 Constitution
  supervision over performance of all tasks of
  units of territorial self-government has been
  restricted to conformity with the law (art. 171).

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Functions of public administration
• administration of order
• administration of provision
• administration of ownership
• administration of development

Woodrow Wilson (1856-1924) founder of the science
of public administration in the United States.
dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Administration of order
• (administracja reglamentacyjna)
• Administration of order (administration of
  imperium) per-forms the classical functions of
  ordering, forbidding or al-lowing a certain
  conduct, by means of administrative acts,
  normative and/or individual.
• the function of adjudication (the function of
  deciding in individual cases)
• adjudicative administration and regulatory
  administra-tion
• H. Izdebski Activities of administration of
  order, as classical, can still be car-ried out in
  a traditional imperative way, though following
  such style of ad-ministering, which is distant
  from the standards of good governance, seems to
  be more and more difficult.

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Administration of provision
• (administracja swiadczaca)
• provision of public services in the social field
  (educa-tion, health care, social aid, etc.)
  these services are tradi-tionally provided by
  public establishments (zaklady admi-nistracyjne)
  
• provision of services qualified as utilities or
  public utili-ties (public transport,
  telecommunications, water, electri-city, gas
  supply, etc.) these services are traditionally
  pro-vided by public enterprises (these days their
  role has been diminishing, as some of them are
  transformed into public-owned companies, which
  can be the first step towards their
  privatisation)

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Administration of ownership
• (administracja wlascicielska)
• Administration of ownership (administration of
  dominium) performs tasks of management of public
  property
• public goods (streets, public parks, etc.)
• administrative assets (used by respective
  offices in order to perform certain public tasks)
• business assets

dr. hab. Jerzy Supernat
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Basic Terminology in the Field of Public
Administration

• Administration of development
• Administration of development means public
  planning in its various aspects involving
• town and country planning
• regional strategic planning
• development planning within the framework of the
  Euro-pean Union structural policies

dr. hab. Jerzy Supernat
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Concluding Remark
Do not ask what the Government can do for you.
Ask why it doesn't. Gerhard Kocher
dr. hab. Jerzy Supernat