Introduction to Comparative Administrative Law
LO
Published · 83 slides · 0 views
1 / 1
Description
Introduction to Comparative Administrative Law Part I Legal Regulations on the Organisation of the Public Administration Prof. dr. habil. István Hoffman Professor (ELTE ÁJK), Professor of University (UMCS WPiA)
Related Topics
Share
Embed code
Download this presentation From Below
"Introduction to Comparative Administrative Law" is the property of its rightful owner. Permission is granted to download and print the materials on this website for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Presentation Transcript
01
Introduction to Comparative Administrative Law Part I – Legal Regulations on the Organisation of the Public Administration Prof. dr. habil. István Hoffman
Professor (ELTE ÁJK), Professor of University (UMCS WPiA)
i.hoffman@poczta.umcs.lublin.pl Block seminar<br>
Professor (ELTE ÁJK), Professor of University (UMCS WPiA)
i.hoffman@poczta.umcs.lublin.pl Block seminar<br>
02
Introduction Methods of legal comparison<br>
03
The first question: What is Love Law? (1)<br>
04
The first question: What is Law? (2) The different approaches
Postivism (Hart)
Monism – Dualism (for example: ius naturale – ius positivum) – Pluralism
Different approaches of pluralism<br>
Postivism (Hart)
Monism – Dualism (for example: ius naturale – ius positivum) – Pluralism
Different approaches of pluralism<br>
05
Pluralism in Roman Law (Samuel, 2019, 144, after D.1.1.1.)<br>
06
Modern pluralism (Samuel, 2019, 144)<br>
07
Challenges of Comparison Law and Language expression, translation (distortion)
Law and fact (actual and virtual facts)<br>
Law and fact (actual and virtual facts)<br>
08
Levels of comparison Micro (presumption of similarity) and macro (presumption of difference) approaches
Genealogical and analogical comparison
Genealogical: influence – specific rules
Analogical: institutions
Internal and external comparison<br>
Genealogical and analogical comparison
Genealogical: influence – specific rules
Analogical: institutions
Internal and external comparison<br>
09
Methods of legal comparison (1): main methods Functional: analysis of the functions of legal rules (social sciences!)
Between functionalism and structuralism:
Schemes of intelligibility
Analysis of schemes
Law and the dialectical schemes
Structural: analysis of the structure
Hermeneutical<br>
Between functionalism and structuralism:
Schemes of intelligibility
Analysis of schemes
Law and the dialectical schemes
Structural: analysis of the structure
Hermeneutical<br>
10
Methods of legal comparison (2): Functional method (1): rule based analysis (Samuel)<br>
11
Methods of legal comparison (3): Functional method (2): case based analysis (Samuel)<br>
12
Methods of legal comparison (4): Structural method<br>
13
Comparative Administrative Law and Comparative Public Administration Legal and Administrative Comparison<br>
14
Introductory remarks Analysis of the public administration:
Different approaches
Different elements
Legal comparison and public administration
The main field of the comparative law
The evolvement and development of
comparative administrative law
comparative municipal law<br>
Different approaches
Different elements
Legal comparison and public administration
The main field of the comparative law
The evolvement and development of
comparative administrative law
comparative municipal law<br>
15
Jurisprudential comparison Different levels of the comparison
First level: country studies
Second level: comparison of the legal institutions
Formerly the majority of the books on comparative legal analysis: country studies
Changing methods: see Bogdandy et al. (2014) and Rose-Ackermann et al. (2017)<br>
First level: country studies
Second level: comparison of the legal institutions
Formerly the majority of the books on comparative legal analysis: country studies
Changing methods: see Bogdandy et al. (2014) and Rose-Ackermann et al. (2017)<br>
16
Legal systems and administrative law (1) Legal systems (René, Zweigert/Kötz)
Common Law
Continental
French (Latin)
German
Scandinavian
Eastern Central, Eastern and South Eastern European
Traditional
(Formerly: Socialist)<br>
Common Law
Continental
French (Latin)
German
Scandinavian
Eastern Central, Eastern and South Eastern European
Traditional
(Formerly: Socialist)<br>
17
Tiers of legal comparison of the different systems (1) Legal culture (after Kuhlmann & Wollmann) – based on traditional comparative law approach
Common Law
Roman – French
Roman – German
Roman – Scandinavian
Rule of Law (Rechtsstaat) vs. Public Interest
Procedural models
Common Law
French
German<br>
Common Law
Roman – French
Roman – German
Roman – Scandinavian
Rule of Law (Rechtsstaat) vs. Public Interest
Procedural models
Common Law
French
German<br>
18
Tiers of legal comparison of the different systems (2) Constitutional model
Legal regulation on form of government)
Presidential
Semi-Presidential
Parliamentary
‚Council of Ministers’
Westminster
Chancellor
Federal or unitary state
Federal
Unitary
Centralised
Decentralised
Regionalised<br>
Legal regulation on form of government)
Presidential
Semi-Presidential
Parliamentary
‚Council of Ministers’
Westminster
Chancellor
Federal or unitary state
Federal
Unitary
Centralised
Decentralised
Regionalised<br>
19
Comparative public administration (comparative governance) (1) Based on the methods of political sceinces, economics and partly jurisprudential elements administrative sciences
Elements of the analysis (1)
Comparative governance
Administrative reforms (firstly NPM, form the 2000s post-NPM, Good Governance, NWS based etc.)
Territorial aspects (economies of scale, borders, federalisation, regionalisation, centralisation, decentralisatiopn, devolution)
Financial approaches (fiscal federalisation / decentralisation)
Decision making<br>
Elements of the analysis (1)
Comparative governance
Administrative reforms (firstly NPM, form the 2000s post-NPM, Good Governance, NWS based etc.)
Territorial aspects (economies of scale, borders, federalisation, regionalisation, centralisation, decentralisatiopn, devolution)
Financial approaches (fiscal federalisation / decentralisation)
Decision making<br>
20
Comparative public administration (comparative governance) (2) Elements of analysis (2)
Welfare models (Esping Andersen)
Scandinavian (aka social democratic)
Continental (aka conservative, aka Bismarckian)
Southern European
Anglo-Saxon (aka liberal)<br>
Welfare models (Esping Andersen)
Scandinavian (aka social democratic)
Continental (aka conservative, aka Bismarckian)
Southern European
Anglo-Saxon (aka liberal)<br>
21
Constitutional structures Constitutional structures of the different administrative systems<br>
22
Major element: form of government Forms of government, based on the legal status of the Head of the State
Monarchy
Republic
Forms of government, based on the the interactions and relationships of legislation and executive
Non-democratic (authoritarian or hybrid):
Monarchies: Absolut and Constitutional Monarchy
Authoritarian Republic
Democratic:
Presidential
Semi-presidential
Parliamentary<br>
Monarchy
Republic
Forms of government, based on the the interactions and relationships of legislation and executive
Non-democratic (authoritarian or hybrid):
Monarchies: Absolut and Constitutional Monarchy
Authoritarian Republic
Democratic:
Presidential
Semi-presidential
Parliamentary<br>
23
Presidential republics Only in Republics (similarity: Constitutional Monarchy)
Separation of powers and checks and balances
Legislation
Executive
Head of the executive: the Head of the State (personal leadership!)
Only legal responsibility to the Legislation: impeachment AND strong veto rights
Transformation: independent agencies
Judicial review of the actions of legislations and executive<br>
Separation of powers and checks and balances
Legislation
Executive
Head of the executive: the Head of the State (personal leadership!)
Only legal responsibility to the Legislation: impeachment AND strong veto rights
Transformation: independent agencies
Judicial review of the actions of legislations and executive<br>
24
Parliamentarism (1) Monarchies and republics
Common element: government (executive) is politically responsible to the legislation
Different types:
‚Council of Ministers’
Ministers are personally responsible to legislation
Prime Minister: ‚primus inter pares’
Instability<br>
Common element: government (executive) is politically responsible to the legislation
Different types:
‚Council of Ministers’
Ministers are personally responsible to legislation
Prime Minister: ‚primus inter pares’
Instability<br>
25
Parliamentarism (2) Westminster model
Only the Prime Minister is personally responsible to legislation
Each voting in Parliament can be considered as a vote of confidence
‚Destructive’ vote of confidence
‚Cabinet’ system
Chancellor democracy:
Only the Prime Minister is personally responsible to legislation
‚Constructive’ vote of confidence
Judicial review and constituional courts<br>
Only the Prime Minister is personally responsible to legislation
Each voting in Parliament can be considered as a vote of confidence
‚Destructive’ vote of confidence
‚Cabinet’ system
Chancellor democracy:
Only the Prime Minister is personally responsible to legislation
‚Constructive’ vote of confidence
Judicial review and constituional courts<br>
26
Semi-presidential model Between Parliamentarism and Presidential system
Head of state is the Head of Government, but there are ‚corporate governance’: Council of Ministers, with a Prime Minister (and his/her legal status)
Council of Ministers is responsible to
Head of the State (President)
Legislation (mainly: House of Representatives)
Head of State can act widely independently<br>
Head of state is the Head of Government, but there are ‚corporate governance’: Council of Ministers, with a Prime Minister (and his/her legal status)
Council of Ministers is responsible to
Head of the State (President)
Legislation (mainly: House of Representatives)
Head of State can act widely independently<br>
27
Territorial division based on the constitutions (1) Unitary and federel states
Traditional concepts
Federalism
Local government
Regionalisation as a phenomena
Transformation of the traditional framework:
Centralised or organic – decentralised or dual federations
Asymmetrical federalism
Regionalisation and regionalism
Evolvement of hybrid models (?)<br>
Traditional concepts
Federalism
Local government
Regionalisation as a phenomena
Transformation of the traditional framework:
Centralised or organic – decentralised or dual federations
Asymmetrical federalism
Regionalisation and regionalism
Evolvement of hybrid models (?)<br>
28
Territorial division based on the constitutions (2) Trends in territorial governance
The evolvement of the welfare state and the fiscal federalism
Asymmetrical territorial reforms and the ethnic questions
Based on the EU: regional development issue
Decentralisation as a tool of the share of the powers
Inter-municipality
Methods of the comparison:
Governance
Jurisprudential and organisational approach<br>
The evolvement of the welfare state and the fiscal federalism
Asymmetrical territorial reforms and the ethnic questions
Based on the EU: regional development issue
Decentralisation as a tool of the share of the powers
Inter-municipality
Methods of the comparison:
Governance
Jurisprudential and organisational approach<br>
29
Administrative independence, transparency and policy-making Procedural elements<br>
30
Transforming environment of administrative law Trust as a central element of the efficiency of administrative systems
Concept of ‚co-creation’
The role of resiliency
Trust and resiliency in law: procedural solutions:
Administrative independence as a professionalisation
Accountability and transparency
Policy-making:
Citizen’s involvement, form
Community budgeting<br>
Concept of ‚co-creation’
The role of resiliency
Trust and resiliency in law: procedural solutions:
Administrative independence as a professionalisation
Accountability and transparency
Policy-making:
Citizen’s involvement, form
Community budgeting<br>
31
Administrative independence (1) Different levels:
Professional independence of the public servants (open recruitment, professional rules, depoliticisation)
Regulatory authorities and independent agencies
Professional independence
Regulation on open recruitment and exceptions
Instructions and contradictions
Right to professional view
Depoliticisation of civil servants (?)<br>
Professional independence of the public servants (open recruitment, professional rules, depoliticisation)
Regulatory authorities and independent agencies
Professional independence
Regulation on open recruitment and exceptions
Instructions and contradictions
Right to professional view
Depoliticisation of civil servants (?)<br>
32
Administrative independence (2) Regulatory authorities
Evolvement (late 19th century, but mainly: after WW2).
Regulatory roles:
Decisions which have a general element
Regulatory powers
Soft law documents
Independent agencies
Evolvement answer to the Presidential Administration and its further evolution
Characteristics
Organisational
Personal autonomy
Professional
Challenges
Rule of law and independency
Democratic legitimation and independency<br>
Evolvement (late 19th century, but mainly: after WW2).
Regulatory roles:
Decisions which have a general element
Regulatory powers
Soft law documents
Independent agencies
Evolvement answer to the Presidential Administration and its further evolution
Characteristics
Organisational
Personal autonomy
Professional
Challenges
Rule of law and independency
Democratic legitimation and independency<br>
33
Accountability and transparency Accountability and trust: different elements
Remedies and judicial review: external control
Constituional court
Transparency
Decision making
Citizen’s participation
Decions
Individual
General (regualtions)
Accountability
External control (within the state): checks and balances
Civil control
Media (?) (even: social media?) – and its challenges<br>
Remedies and judicial review: external control
Constituional court
Transparency
Decision making
Citizen’s participation
Decions
Individual
General (regualtions)
Accountability
External control (within the state): checks and balances
Civil control
Media (?) (even: social media?) – and its challenges<br>
34
Comparative analyses of the central government systems and bodies Central government and independent agencies<br>
35
Different models Classification:
Kuhlmann – Wollmann
Napoleonic
Continental European federal (German – Austrian)
Scandinavian
Anglo-Saxon
Central Eastern and South Eastern European
Fazekas:
British
Northern American (USA)
German
French
Scandinavian<br>
Kuhlmann – Wollmann
Napoleonic
Continental European federal (German – Austrian)
Scandinavian
Anglo-Saxon
Central Eastern and South Eastern European
Fazekas:
British
Northern American (USA)
German
French
Scandinavian<br>
36
British model (1) UK, but this model is followed by Ireland, Canada, Australia and New Zealand
Constitutional background
King / Queen in Parliament
Ultra vires principle
Parliamentary monarchy (Ireland: republic)
Royal prerogatives
Royal charter
Government and Cabinet
Government: wide
Cabinet: 20-30 members, members are selected by the PM
Role of the PM: responsibility to Parliament, different posts which are held by the PM
PMQ: Prime Minister’s Question in Parliament<br>
Constitutional background
King / Queen in Parliament
Ultra vires principle
Parliamentary monarchy (Ireland: republic)
Royal prerogatives
Royal charter
Government and Cabinet
Government: wide
Cabinet: 20-30 members, members are selected by the PM
Role of the PM: responsibility to Parliament, different posts which are held by the PM
PMQ: Prime Minister’s Question in Parliament<br>
37
British model (2) Ministerial departments:
Department/Ministry, but there are other bodies which are considered as ministerial departments (Traesury; Wales Office)
Lead by Secretary of State (mainly)
Secretary of States (Ministers) are responsible to Parliament: Parliament can review their regulations
Permanent Secretary: professional head of the civil servants of the ministerial departments
Non-ministerial departments, exectuive agencies, non-departmental public bodies
Offices (for example National Health Service) or collegial bodies (Advisory Committee on Pesticides)
They are established mainly by Act of Parliament, but in several cases by royal charter (for example the British Broadcasting Corporation – BBC)
Limited autonomy (some of them: regulatory authorities)<br>
Department/Ministry, but there are other bodies which are considered as ministerial departments (Traesury; Wales Office)
Lead by Secretary of State (mainly)
Secretary of States (Ministers) are responsible to Parliament: Parliament can review their regulations
Permanent Secretary: professional head of the civil servants of the ministerial departments
Non-ministerial departments, exectuive agencies, non-departmental public bodies
Offices (for example National Health Service) or collegial bodies (Advisory Committee on Pesticides)
They are established mainly by Act of Parliament, but in several cases by royal charter (for example the British Broadcasting Corporation – BBC)
Limited autonomy (some of them: regulatory authorities)<br>
38
(Northern) American model (1) Based on the United States of America, it is folowed by several Latin American countries
Presidential system:
The Head of the State and the Head of the (federal) administration is the president
Wide powers and duties of the president
Executive Office of the President : the staff of the president (‚West Wing’)
Cabinet: mmbers: Secretaries, but there are another positions Department of Justice: Attorney General; Secretary of State as a secretary responsible for foreign affairs)
Appointed by the president (but mainly approval of Senate is required)
Departments
Democratic legimitation: strong legislative control of buraucracy (personal questions, review of regulations) powers and duties of the Congress, but these powers can be delegated (delegation of powers)<br>
Presidential system:
The Head of the State and the Head of the (federal) administration is the president
Wide powers and duties of the president
Executive Office of the President : the staff of the president (‚West Wing’)
Cabinet: mmbers: Secretaries, but there are another positions Department of Justice: Attorney General; Secretary of State as a secretary responsible for foreign affairs)
Appointed by the president (but mainly approval of Senate is required)
Departments
Democratic legimitation: strong legislative control of buraucracy (personal questions, review of regulations) powers and duties of the Congress, but these powers can be delegated (delegation of powers)<br>
39
(Northern) American model (2) Agencies
Different names (Office, Bureau, Commission, Administration)
Regulatory authorities
Independent regulatory agencies
Established by the Congress, leaders are appointed (mainly) by the President (in several cases approval of Senate is required)<br>
Different names (Office, Bureau, Commission, Administration)
Regulatory authorities
Independent regulatory agencies
Established by the Congress, leaders are appointed (mainly) by the President (in several cases approval of Senate is required)<br>
40
German model (1) Model is followed by the V4 countries and several Southern European countries (from the 90s, especially Italy, Spain, partly Portugal and Greece)
Parliamentary system
Head of State (in Germany and Austria: Bundespräsident) is theoretically the Head of the Administration, but their role is mainly ceremonial:
Appointments and recommendations (chancelor is recommended by the BP? but is elected by the Bundestag in Germany – in Austria: chancellor is appointed by the BP).
Countersign of the chancellor or miniszters are required for the majority of their actions.<br>
Parliamentary system
Head of State (in Germany and Austria: Bundespräsident) is theoretically the Head of the Administration, but their role is mainly ceremonial:
Appointments and recommendations (chancelor is recommended by the BP? but is elected by the Bundestag in Germany – in Austria: chancellor is appointed by the BP).
Countersign of the chancellor or miniszters are required for the majority of their actions.<br>
41
German model (2) Government: Bundesregierung (Austria and Germany)
Three principles:
Chancellor principle (Kanzlerprinzip):
the general politics of the government is defined by the chancellor and
he or she is only responsible to legislation (‚constructive vote on confidence the new chancellor shall be named by the motion of non-confidence)
The role of the Office of the Chancellor (in Germany: Bundeskanzleramt)
Lead by a minister
Responsible for the intra-governmental coordination and for the inter-governmental relations
Departmental principle (Ressortprinzip)
There are ministries within the government which are lead by ministers and which are responsibles for their sectors
Collegiate principle (Kollegialprinzip)
Government is a collegiate body, however the chancellor has pominent role<br>
Three principles:
Chancellor principle (Kanzlerprinzip):
the general politics of the government is defined by the chancellor and
he or she is only responsible to legislation (‚constructive vote on confidence the new chancellor shall be named by the motion of non-confidence)
The role of the Office of the Chancellor (in Germany: Bundeskanzleramt)
Lead by a minister
Responsible for the intra-governmental coordination and for the inter-governmental relations
Departmental principle (Ressortprinzip)
There are ministries within the government which are lead by ministers and which are responsibles for their sectors
Collegiate principle (Kollegialprinzip)
Government is a collegiate body, however the chancellor has pominent role<br>
42
German model (3) Ministries
Sectoral division
Dual structure:
Political leadership: Minister and Political Secretary of State (politischer Staatsskeretär(in)) politically sensitive and changing
Professional leadership: Administrative Secretary of State (beamteter Staatssekretär(in)) permanent and stable (?) – but political loyality is important
Non-ministerial departments and agencies (Oberbehörde)
Mainly directed by a ministry
Established mainly by Act of Parliaments<br>
Sectoral division
Dual structure:
Political leadership: Minister and Political Secretary of State (politischer Staatsskeretär(in)) politically sensitive and changing
Professional leadership: Administrative Secretary of State (beamteter Staatssekretär(in)) permanent and stable (?) – but political loyality is important
Non-ministerial departments and agencies (Oberbehörde)
Mainly directed by a ministry
Established mainly by Act of Parliaments<br>
43
French model (1) Followed: by France and the Francophone countries (in Europe: Eastern European countries, Romania, partly by several West Balkan countries)
5th Republic (de Gaulle)
Semi-presidential model
Executive is lead by the President (Président) and by the Government (Gouvernement) – which has a Prime Ministre (Premier ministre)
President: Head of State, wide responsibilites in the field of defense policy and foreign policy (the structure was developed by the Gaulle…) – but: wide range of requirement of ministerial countersign<br>
5th Republic (de Gaulle)
Semi-presidential model
Executive is lead by the President (Président) and by the Government (Gouvernement) – which has a Prime Ministre (Premier ministre)
President: Head of State, wide responsibilites in the field of defense policy and foreign policy (the structure was developed by the Gaulle…) – but: wide range of requirement of ministerial countersign<br>
44
French model (2) Government:
It is led mainly by the President (it is called: Conseil des ministres) but it can be led by the Prime Minister (it is called: Conseil de Cabinet)
Members: Prime Minister and Ministers (they cannot be members of the National Assembly)
Government is responsible to the National Assembly and to the President
(Formerly co-habitation was an opportunity – different épolitical views of President and Prime Minister – but now the termins of National Assembly and President has been harmonised)
Wide range of executive regulatory powers (decrees and ordonnances)
Prime Minister
Prominent role in the Government
Regulatory powers
Office (responsible for governmental coordination): Secrétariat Général du Gouvernenmant<br>
It is led mainly by the President (it is called: Conseil des ministres) but it can be led by the Prime Minister (it is called: Conseil de Cabinet)
Members: Prime Minister and Ministers (they cannot be members of the National Assembly)
Government is responsible to the National Assembly and to the President
(Formerly co-habitation was an opportunity – different épolitical views of President and Prime Minister – but now the termins of National Assembly and President has been harmonised)
Wide range of executive regulatory powers (decrees and ordonnances)
Prime Minister
Prominent role in the Government
Regulatory powers
Office (responsible for governmental coordination): Secrétariat Général du Gouvernenmant<br>
45
French model (3) Ministers and ministries
Different positions
(Ministre d’État)
Ministre since 2019: only ministers
(Ministre délégué)
Dual structure:
Political component: Miniszter, Cabinet of the Ministre, Secretary of State
Professional component: lead by Secretary General (Director Generals and Directors)
A special body: Conseil d’État
A special administrative body with wide range of autonomy
Formally is led by the Prime Minister, but actually led by the Vice-President of the Conseil d’État
Responsible for the judicial review of the administrative decisions and regulations
Advisory body to the President and to the Government<br>
Different positions
(Ministre d’État)
Ministre since 2019: only ministers
(Ministre délégué)
Dual structure:
Political component: Miniszter, Cabinet of the Ministre, Secretary of State
Professional component: lead by Secretary General (Director Generals and Directors)
A special body: Conseil d’État
A special administrative body with wide range of autonomy
Formally is led by the Prime Minister, but actually led by the Vice-President of the Conseil d’État
Responsible for the judicial review of the administrative decisions and regulations
Advisory body to the President and to the Government<br>
46
Scandinavian (Nordic) model Mainly: parliamentary monarchies (except: Finland and Iceland)
King/Queen: in theory the Head of Executive, but practically only ceremonial roles
Executive is led by the Government
Council of State can be established (in Denmark: Ståtsradet, which members are wider, for example the Crown Prince is a Member, as well)
Government is responsible to the legislation – but appointment cvan be different (the Government can control the decisions of the King/Queen)
Prominent role of the PM
Dual structure of ministries (political and professional) – in Sweden:more than one minister in one ministry (but there is a ‚main’ one, the others are responsible for sub-sectors within the ministry)
Prominent role of agencies
In Denmark: directed by the ministries
In Sweden: autonomy and wide powers and duties<br>
King/Queen: in theory the Head of Executive, but practically only ceremonial roles
Executive is led by the Government
Council of State can be established (in Denmark: Ståtsradet, which members are wider, for example the Crown Prince is a Member, as well)
Government is responsible to the legislation – but appointment cvan be different (the Government can control the decisions of the King/Queen)
Prominent role of the PM
Dual structure of ministries (political and professional) – in Sweden:more than one minister in one ministry (but there is a ‚main’ one, the others are responsible for sub-sectors within the ministry)
Prominent role of agencies
In Denmark: directed by the ministries
In Sweden: autonomy and wide powers and duties<br>
47
Comparative analysis of the police administration<br>
48
The interpretation of policing Different approaches
Common element: defense of the public order
French approach: ordre publique and its elements
German concept of Polizei
Anglo-Saxon countries: police „to protect and serve”<br>
Common element: defense of the public order
French approach: ordre publique and its elements
German concept of Polizei
Anglo-Saxon countries: police „to protect and serve”<br>
49
The beginning: medieval ages Feudal policing
The tasks of the municipalities
State polices: absolute monarchies<br>
The tasks of the municipalities
State polices: absolute monarchies<br>
50
Municipal police Anglo-Saxon countries
General police tasks are performed by municipal bodies
State polices and and municipal polices<br>
General police tasks are performed by municipal bodies
State polices and and municipal polices<br>
51
Mixed model (French approach) Nationalisation of the local police forces
State polices: Police Nationale and Gendarmerie Nationale (police juricaires)
After 1983: local police forces can be established (police administratifs)
Local police forces: under the direction of the maire (state and municipal task)
Similar model is followed by the Southern European countries:
Italy: Carabinieri – Polizia di Stato – Polizia municipale
Portugal: Guarda Nacional Republicana – Polícia Judiciária – Polícia de Segurança Pública – Polícia Municipal<br>
State polices: Police Nationale and Gendarmerie Nationale (police juricaires)
After 1983: local police forces can be established (police administratifs)
Local police forces: under the direction of the maire (state and municipal task)
Similar model is followed by the Southern European countries:
Italy: Carabinieri – Polizia di Stato – Polizia municipale
Portugal: Guarda Nacional Republicana – Polícia Judiciária – Polícia de Segurança Pública – Polícia Municipal<br>
52
Number of the local policie authorities in France in 2013 (after Donelly and Horváth)<br>
53
Number of the officers of the French police authorities in 2013 (after Donnelly)<br>
54
State police German example: police is performed by state (and federal) agencies
Municipalities have duties only:
fire and rescue.<br>
Municipalities have duties only:
fire and rescue.<br>
55
Federal and regional states The subnational tiers of administration<br>
56
Main models of federalism (examples)<br>
57
Blurred boundaries? Centralised federations and regionalised states
The phenomena of
(welfare) centralisation
resymmetrisation<br>
The phenomena of
(welfare) centralisation
resymmetrisation<br>
58
Models of the regions Municipal model
France (and the transofrmation of the French model)
Municipal regionalism in CEE: Poland
Regionalised model
The ‚una e indisibile’ Italy and its regions (multiethnicity and traditions)
Serbia: the case of Vojvodina (multiethnical region)
Inter-municipal model
from agencies to inter-municipal associations (development issue and regionalism in Ireland and Portugal
Urban governance (?)
Quasi regions and the development issue<br>
France (and the transofrmation of the French model)
Municipal regionalism in CEE: Poland
Regionalised model
The ‚una e indisibile’ Italy and its regions (multiethnicity and traditions)
Serbia: the case of Vojvodina (multiethnical region)
Inter-municipal model
from agencies to inter-municipal associations (development issue and regionalism in Ireland and Portugal
Urban governance (?)
Quasi regions and the development issue<br>
59
The hybridity and its borders. Failed reforms Hybrid soultions:
The quasi-federalism in Spain and the case of Catalonia
The transformation of the United Kingdom: back to the real federalism?
Failed reforms:
Lack of the traditions Hungary
Multhiethnicity as problem Romania and Slovakia<br>
The quasi-federalism in Spain and the case of Catalonia
The transformation of the United Kingdom: back to the real federalism?
Failed reforms:
Lack of the traditions Hungary
Multhiethnicity as problem Romania and Slovakia<br>
60
Territorial agencies of central government A comparative analysis of the different soultions<br>
61
Comparative analysis Classification of territorial agencies of central government
Based on the legal status major question: has been a general agency established by the national regulation
Main models:
Sectoral deconcentration (a general agency has not been established)
Prefect model
Mixed model<br>
Based on the legal status major question: has been a general agency established by the national regulation
Main models:
Sectoral deconcentration (a general agency has not been established)
Prefect model
Mixed model<br>
62
Models of territorial agencies of central government Anglo-Saxon
Sectoral agencies French : Prefecture + Mixed:
„Prefecture” (but narrow compoetences) Depts. Ter. Depts. Ter. Depts. Ter. Depts. Ter. Government Prefecture Government Germany – in several provinces: county self-governments in delegated powers<br>
Sectoral agencies French : Prefecture + Mixed:
„Prefecture” (but narrow compoetences) Depts. Ter. Depts. Ter. Depts. Ter. Depts. Ter. Government Prefecture Government Germany – in several provinces: county self-governments in delegated powers<br>
63
Sectoral deconcentration Only sectoral territorial agencies
United Kingdom (however in the UK from 1994 to 2010 a mixed model – Government Offices for the English Regions)
Differentiated status and area of competence
coordination: central level
USA: similar solutions in the state administrations
Several German provinces: county self-governments in delegated powers<br>
United Kingdom (however in the UK from 1994 to 2010 a mixed model – Government Offices for the English Regions)
Differentiated status and area of competence
coordination: central level
USA: similar solutions in the state administrations
Several German provinces: county self-governments in delegated powers<br>
64
French model (prefect) (1) Napoleonic model: prefect is responsible for the whole territorial administration (administrative guardianship over the local governments)
Based on the centralised Napoleonic French State
Characteristics:
Political leadership
Sectoral territorial agencies are directed or supervised by the prefect
The legal supervision of the local governments belongs to the responsibilites of the prefect<br>
Based on the centralised Napoleonic French State
Characteristics:
Political leadership
Sectoral territorial agencies are directed or supervised by the prefect
The legal supervision of the local governments belongs to the responsibilites of the prefect<br>
65
French model (2) France:
Two-tier territorial agency system (regions and counties – départements)
Prefect and vice prefect (dual role of the vice prefect: vice prefect in départements and in arrondissements)
French model is followed by: Italy, Belgium, Romania, Norway, Sweden, several German provinces, Hungary, Poland (? – Poland is between French and mixed model)<br>
Two-tier territorial agency system (regions and counties – départements)
Prefect and vice prefect (dual role of the vice prefect: vice prefect in départements and in arrondissements)
French model is followed by: Italy, Belgium, Romania, Norway, Sweden, several German provinces, Hungary, Poland (? – Poland is between French and mixed model)<br>
66
Mixed model Limited powers and duties of the general territorial agency (coordination of the tasks of the territorial agencies)
Originally: in Germany: Regierungspräsidium – now only in Bavaria and in Hessen
Followed by: Denmark (formerly by Hungary and Poland, in Poland: the prominent role of the wojewoda is merely a prefectorial model)<br>
Originally: in Germany: Regierungspräsidium – now only in Bavaria and in Hessen
Followed by: Denmark (formerly by Hungary and Poland, in Poland: the prominent role of the wojewoda is merely a prefectorial model)<br>
67
Comparative municipal law Local governments in the administrative systems<br>
68
Anglo-Saxon model Conmstitutional status: based on the ultra vires principle
Based on the English concept of King/Queen in Parliament competences and legal status of the local governments as administrative bodies are defined by the Act of Parliament
The end of ultra vires?
UK: decisions of the High Courts, and after 2011: Localism Act 2011 general powers of local governments (?)
US: Dillon pronciple, home rule and municipal home rule
Post-Soviet Member States
Tasks of the municipalities: a monist system<br>
Based on the English concept of King/Queen in Parliament competences and legal status of the local governments as administrative bodies are defined by the Act of Parliament
The end of ultra vires?
UK: decisions of the High Courts, and after 2011: Localism Act 2011 general powers of local governments (?)
US: Dillon pronciple, home rule and municipal home rule
Post-Soviet Member States
Tasks of the municipalities: a monist system<br>
69
Administration
Traditionally: based on the strong competences of the local councils and on the municipal cabinets (UK)
Traditional system of the US: mayor – clerk – council
Transformation of the traditional models:
USA: strong mayor form, council-manager form
UK: directly elected mayor or head of the cabinet
Inter-municipal cooperation: it is known, but has limited role in the system<br>
Traditionally: based on the strong competences of the local councils and on the municipal cabinets (UK)
Traditional system of the US: mayor – clerk – council
Transformation of the traditional models:
USA: strong mayor form, council-manager form
UK: directly elected mayor or head of the cabinet
Inter-municipal cooperation: it is known, but has limited role in the system<br>
70
Unified municipal asset
Legally wide autonomy in finances, practically: very limited financial autonomy
Decisions of municipalities are reviewed by the courts (and partly by tribunals)<br>
Legally wide autonomy in finances, practically: very limited financial autonomy
Decisions of municipalities are reviewed by the courts (and partly by tribunals)<br>
71
Continental – French model Constitutional background: general powers of municipalities, but legislation have wide responsibilites to define it
Municipal tasks: dualistic system
Delegated state (central administration) tasks (mainly the responsibilities of the mayors)
Municipal tasks
Mandatory tasks
Voluntary tasks
In several sectoral rules: alternative tasks (mandatory tasks of the larger municipalities can be fulfilled by smaller municipalities or by inter-municipal associations)<br>
Municipal tasks: dualistic system
Delegated state (central administration) tasks (mainly the responsibilities of the mayors)
Municipal tasks
Mandatory tasks
Voluntary tasks
In several sectoral rules: alternative tasks (mandatory tasks of the larger municipalities can be fulfilled by smaller municipalities or by inter-municipal associations)<br>
72
Administration :
Based on the strong mayor (council is relatively weak – in several countries and provinces – for example in Portugal, Hessen – magistrates)
Inter-municipal associations:
Prominent role and differentiated regulation on them
Municipal asset:
Shared municipal asset<br>
Based on the strong mayor (council is relatively weak – in several countries and provinces – for example in Portugal, Hessen – magistrates)
Inter-municipal associations:
Prominent role and differentiated regulation on them
Municipal asset:
Shared municipal asset<br>
73
Municipal finances
Strong influence of the central administration
Formerly: block grants (now: wide range of administrative contracts)
Local and central government
Originally: ‚administrative guardianship’ (‚tutélage administratif’), now: limited control of the legality of the municipal decisions<br>
Strong influence of the central administration
Formerly: block grants (now: wide range of administrative contracts)
Local and central government
Originally: ‚administrative guardianship’ (‚tutélage administratif’), now: limited control of the legality of the municipal decisions<br>
74
Continental – German model Constitutional background: general powers of municiplaities (general clause)
‚Within the Law’ (‚im Rahmen der Gesetze’)
Constituinal defence of the municipal autonomy (by Federal Constitutional Court) not a basic law, but defence of the competences (Kommunalvergfassungsbeschwerde) (see case Rastede)
Municipal tasks : dual system
Delegated state tasks professional supervision (Fachaufsicht) of the state administration
Municipal tasks legal supervision (Rechtsaufsicht)
Mandatory tasks
Voluntary tasks
In several sectoral rules: alternative tasks (mandatory tasks of the larger municipalities can be fulfilled by smaller municipalities or by inter-municipal associations)<br>
‚Within the Law’ (‚im Rahmen der Gesetze’)
Constituinal defence of the municipal autonomy (by Federal Constitutional Court) not a basic law, but defence of the competences (Kommunalvergfassungsbeschwerde) (see case Rastede)
Municipal tasks : dual system
Delegated state tasks professional supervision (Fachaufsicht) of the state administration
Municipal tasks legal supervision (Rechtsaufsicht)
Mandatory tasks
Voluntary tasks
In several sectoral rules: alternative tasks (mandatory tasks of the larger municipalities can be fulfilled by smaller municipalities or by inter-municipal associations)<br>
75
Administration: diverse systems
Strong council and magistarte as a collegial body
South German council model (based on the prominent role of the mayor)
Northern German council model (shared administration: professional and political and personal and collegiate leadership)
Inter-municipal associations:
Prominent role
Both mandatory and voluntary types
Diverse and differentiated system: depends on tasks, members etc.<br>
Strong council and magistarte as a collegial body
South German council model (based on the prominent role of the mayor)
Northern German council model (shared administration: professional and political and personal and collegiate leadership)
Inter-municipal associations:
Prominent role
Both mandatory and voluntary types
Diverse and differentiated system: depends on tasks, members etc.<br>
76
Asset: shared municipal asset
Finance:
Prominent role of state subsidies
Transfered taxes (central taxes collected by the municipalities)
Municipal credit and limitations on it (regulations on municipal bankruptcy)
State and local government
Supervision:
Legal
Professional
Local / regional governments
The concept of ‚cooperative supervision’<br>
Finance:
Prominent role of state subsidies
Transfered taxes (central taxes collected by the municipalities)
Municipal credit and limitations on it (regulations on municipal bankruptcy)
State and local government
Supervision:
Legal
Professional
Local / regional governments
The concept of ‚cooperative supervision’<br>
77
Continental – Scandinavian model Administration is based on the prominent role of municipal committees
Radical merge of municipalities
From the 2010s: inter-municipal associations
Wide range of municipal tasks BUT strong central regulations on the quality of municipal services (limited autonomy in the field of local decisions on municipal services)<br>
Radical merge of municipalities
From the 2010s: inter-municipal associations
Wide range of municipal tasks BUT strong central regulations on the quality of municipal services (limited autonomy in the field of local decisions on municipal services)<br>
78
Tiers of the municipal administration Different types of local and regional municipalities
Number of tiers in European countries :
One-tier (ministates; federal states with small federal units – Switzerland, Australia; unified one-tier system: West-Balkan /Slovenia, Serbia/ and Scotland)
Two-tier: local and regional (territorial) tier
Three-tier systems (regional entitites: local – lower middle – regional, for example: France, Italy, Spain, Poland)<br>
Number of tiers in European countries :
One-tier (ministates; federal states with small federal units – Switzerland, Australia; unified one-tier system: West-Balkan /Slovenia, Serbia/ and Scotland)
Two-tier: local and regional (territorial) tier
Three-tier systems (regional entitites: local – lower middle – regional, for example: France, Italy, Spain, Poland)<br>
79
Tools against municipal fragmentation Merge of municipalities
Radical in Scandinavian countries
Moderate: Belgium and South Germany (with strong regional tier)
Fragmented local (1st tier) municipalities with strong regional (lower middle tier) municipalities (France, Italy)
Inter-municipal solutions
Mandatory
Voluntary with central subsidies
Town-centered administration (Czechia and partly Hungary)<br>
Radical in Scandinavian countries
Moderate: Belgium and South Germany (with strong regional tier)
Fragmented local (1st tier) municipalities with strong regional (lower middle tier) municipalities (France, Italy)
Inter-municipal solutions
Mandatory
Voluntary with central subsidies
Town-centered administration (Czechia and partly Hungary)<br>
80
Recentralisation After 2008: recentralisation in Europe
Forms of recentralisation:
Nationalisation of public services (former municipal tasks): especially health care, social care, partly public education (very radical recentralisation: Hungary after 2011)
Regulatory centralisation: legislative and regulatory transformations by which the municipal autonomy in local decisions is restricted (for example: detailed regulation on the quality of public services in Scandinavia)
Reconcentration:
Within the municipal system
Merge of municipalities
Encouragement of inter-municipal associations<br>
Forms of recentralisation:
Nationalisation of public services (former municipal tasks): especially health care, social care, partly public education (very radical recentralisation: Hungary after 2011)
Regulatory centralisation: legislative and regulatory transformations by which the municipal autonomy in local decisions is restricted (for example: detailed regulation on the quality of public services in Scandinavia)
Reconcentration:
Within the municipal system
Merge of municipalities
Encouragement of inter-municipal associations<br>
81
An example: Recentralisation in Europe and in Hungary (Eurostat, 2019)<br>
82
Public service systems The main models of the employment of public servants<br>
83
Spoils and career system (Fazekas, 2019)<br>