Administrative Procedure Acts Research Articles

Procedural Challenges of Cross-border Cooperation and Consistency in Personal Data Protection in the EU

Abstract Data protection is an increasingly important topic in the European administrative field at national and cross-border levels. Such a trend reflects different phenomena in contemporary society, which further leads to a more focused concern for a harmonised elaboration by the Member States despite their autonomy, in principle, regarding EU law implementation. However, as revealed by the Slovenian case in this article, the European Data Protection Board and national supervising authorities, mostly information commissioners, express the need to regulate some issues more decidedly. Interestingly, yet not surprisingly, their focus is on procedural aspects, as according to administrative science and several European Commission documents, procedure strongly influences the results. As a result, the article elaborates on the relevant procedural issues to be addressed to ensure a harmonised enforcement of the General Data Protection Regulation (GDPR) in force since 2018. Various research methods are employed, combining qualitative, normative, and comparative analyses and quantitative approaches, emphasising statistical data obtained from annual reports for 2020, 2021, and 2022. The results show a lack of procedural provisions in several aspects, including the definition of the parties to the procedure and their defence rights, particularly access to the file, to be heard, and complain, as well as one-stop-shop access to legal protection, deadlines, and investigation powers. Such gaps are expected to be covered by procedural institutions enshrined in National Administrative Procedure Acts (APA). However, as suggested by the Slovenian experience, such a solution is minimal due to differing national regulations and relatively low awareness of APA relevance in data protection even among supervising authorities. Hence, the authors argue that there is a need to develop and adopt standard EU rules to regulate such issues. Points for Practitioners The article refers to data protection within theoretical, normative, practical, comparative, and national dimensions. In addition to analysing statistical data regarding procedural issues of cross-collaborative application of GDPR in the Member States - primarily Slovenia - the article provides practical implications of legislative, organisational, and IT adaptations required for harmonising EU-wide enforcement of GDPR. The insights provided herein can support the development of similar solutions in other EU countries. Therefore, the research findings are relevant for practitioners from various European administrations who are in charge of implementing GDPR and, specifically, supervising its implementation, as well as for policymakers and legislators in their respective areas of data protection and administrative procedural law. The findings will also benefit the European Commission when drafting new legislation to enhance cooperation and consistency between Member States in enforcing personal data rights set by GDPR.

System of Regular Remedial Measures in the Administrative Procedure in the Czech Republic and Other Countries of the So-Called V4

This article focuses on the system of standard (ordinary) remedial measures used in the administrative procedure that can be found in the Administrative Procedure Acts of so called Visegrad Four (Central European) countries. Mentioned is not only the national legislation but also European impact in this sphere and connecting roots. It can be found some problems that are typical for Visegrad Four countries like ‘remonstrance’. This paper tries to show possible ways to solve such problems and to emphasize that there is still number of national specifics which can be found. These can be understood as ‘inspirational designs’, whether positive or negative.

EU principles as a guide for modelling timely administrative procedures in Slovenia and Croatia

In the theory, legislation and practice of regulation and conduct of administrative procedures, trends towards the concept of good administration can be detected at both supra- and national levels. Based on normative and comparative-legal analyses of Slovene (1999), Croatian (2009) and the EP Resolution (2013) administrative procedure acts (APAs), the article identifies user-oriented institutions that pursue the principles of good administration. Furthermore, it examines acceleration and braking mechanisms that influence the duration of procedures (e.g. setting and shortening time limits, positive fiction, preclusions, and enforcement of procedural errors, broader participation of affected parties, legal protection). Timely and efficient decision-making viewed as a human right with balanced protection of public and private legal interests is in fact crucial for achieving good administration. Hence, in conclusion, the authors propose selected changes de lege ferenda for the reregulation of APAs in Slovenia and beyond, in support of less excessive length of procedures.

Protecting Human Rights Through Fundamental Principles of Administrative Procedures in Eastern Europe

Abstract Administrative procedures (APs) are tools to protect fundamental human rights in statecitizen relations. As the modernization of public administration regulation is undergoing a transformation in the direction of reducing detailed rules on APs and, by the same token, emphasizing fundamental or general principles, research on the development and the state of the art of administrative principles in the general administrative procedure acts (APAs) of selected Eastern Europe countries with a common heritage of Austrian law dating back to 1925 (Slovenia, Croatia, Macedonia and the Czech Republic) was carried out. The normative-comparative analysis reveals differences in approaches to and the pace of APAs reform and content; some countries are taking a more radical approach, mainly by following good governance dimensions. Convergence based on Council of Europe and EU initiatives is also evident. Classical guarantees against the misuse of power (principles of legality, equality, proportionality, rights of defense, etc.) are therefore crucial. The most progress seems to have been made by Croatia and the Czech Republic; by focusing on partnerships in administrative-legal relations in the sense of good administration, these two countries have, among other things, set a trend for other countries to follow.

The impact of bureaucratic openness on public trust in South Korea

In this study, I assess whether administrative procedural openness, via administrative procedure acts (APAs) enhances public confidence in the civil service. I argue that APAs increase governmental transparency, predictability and accountability. Consequently, APAs ought to enhance public confidence in a country's democratic institutions, ceteris paribus. To substantiate this prediction, I investigate trends, pre- and post-APA passage, in the attitudes of Korean citizens regarding their country's democracy in general and civil service in particular (as well as with a second, brief case study of Taiwan). The evidence supports my argument both cross-sectionally and over time, suggesting that passage of Korea's APA laws in the mid-1990s did enhance the Koreans’ confidence in their country's civil service. Attitudes toward the bureaucracy, in turn, are powerful predictors of satisfaction with Korea's democracy, measured both absolutely and relative to attitudes toward the state of the nation 10 years prior. Several key findings replicate for Taiwan.

Presidents Have Problems Too: The Logic of Intra-branch Delegation in East Asian Democracies

This article addresses the codification of formal rules and procedures of governance through Administrative Procedure Acts (APAs). The recent enactment of APAs in two new democracies, South Korea and Taiwan, highlights an apparent paradox. Because administrative reform limits the executive's power, it is clear why legislatures in separation-of-power systems would favour APAs. But it is less clear why presidents would support them. Why would a president accept a law designed to restrict her ability to act freely? The answer is that presidents have agency problems too. The more intra-branch conflict they face during their administrations, the more likely they will support administrative reform. Thus, instead of tying the hands of future administrations, presidents also use APAs to overcome current control problems. Three recently democratized East Asian countries, two with APAs (South Korea and Taiwan) and one without (Philippines), support this ‘reining in’ theory. Conflict within the executive branch may be an important ingredient in democratic consolidation. APAs result from political struggle.

Reining in the Bureaucrats: Democratic Transition and Administrative Procedural Reform in Korea

How do civilian presidents control their bureaucracies after taking over from an authoritarian regime? To answer this question, I develop a “reining in” theory of delegation. I argue that presidents who faces intrabranch conflict over policy issues and cannot appoint—and dismiss—freely will solve their delegation problems through administrative procedure acts (APAs) and related laws. While some scholars argue that APAs are tools for preserving the status quo, I find that APAs help presidents change policy. Building on the delegation literature from economics, my theory represents a more general argument than prior theories for why presidents support APAs. I test the theory through a case study of South Korea's first civilian government (post‐1961), under President Kim Young Sam. Kim initiated an APA to rein in a professionalized civil service that opposed his policy preferences. Strict procedural requirements designed to keep tabs on bureaucratic activities enhanced Kim's control over his bureaucracy.

The Political Economy of State‐Level Administrative Procedure Acts

Abstract One of the most important developments in theories of American bureaucracy has been the claim that organizational procedures that are enacted by public officials have a significant impact on the nature of both bureaucratic control and performance. This development has been accompanied, however, by limited empirical investigation. We address this gap by examining the conditions under which administrative procedure acts (APAs) are adopted by the states. In particular, we test five hypotheses derived from the literature as to when a state‐level APA (SLAPA) will be adopted. In general, two conditions increase the likelihood that a SLAPA will be adopted: (1) when Democratic legislative supermajorities face a Republican governor and (2) when Democratic control is perceived to be temporary. These results indicate that existing theories emphasizing agency and dynamic effects are empirically valid, albeit with an important qualification: there is a distinctive partisan bias in the usefulness of administra...

Speed Bumps on the Road to Administrative Law Reform in California and Pennsylvania

The California Law Revision Commission has been working for ten years on administrative law reform. This work resulted in one solid success--enactment in 1995 of a new Administrative Procedure Act for adjudication. The new APA modernized California's APA by providing an administrative law bill of rights for litigants before agencies not covered by prior law. It also introduced some important reforms such as informal hearings and alternate dispute resolution. The Law Revision Commission also suffered two ignominious failures: its judicial review reform bill was killed in a state senate committee and a modest set of rulemaking reforms passed the legislature but was vetoed by the governor. This article analyzes the politics of state administrative procedure law reform in California, identifying the relevant players and pointing out the pitfalls that any state administrative law reform is likely to encounter. Reformers must enlist a powerful political patron to back the project and must be prepared to compromise until virtually all serious opposition is neutralized. They must articulate a powerful intellectual case for reform, in order to counter the cliche if it ain't broke don't fix In particular, there must be some benefit in the reform package for state agencies so that they have a reason to buy in. For example, a provision for informal hearings or a provision that allows an agency to adopt precedent decisions without going through rulemaking might be attractive to agencies. Agencies will staunchly resist reforms that increase their costs (for example, by required rulemaking) or reduce their autonomy or power (for example, by stripping them of their administrative law judges or diminishing their ability to overturn ALJ findings). Similarly, the private sector will resist reforms that diminish procedural or judicial review protections. Many people will mistrust and misunderstand any reform effort. In the nature of the political process, it is easy to kill legislation (especially when generous campaign contributors are trying to kill it) and hard to pass it. Therefore, reformers must be as inclusive as possible during the drafting of legislation so that all major players can have input into the process. It will often be necessary in this process to scale back ambitious reform proposals and make timely compromises. Failure to recognize these realities of political life doomed the Law Revision Commission's judicial review bill. The article surveys existing Pennsylvania administrative law which is relatively primitive. The waves of reform marked by the 1961 and 1981 Model State Administrative Procedure Acts have largely passed Pennsylvania by. The lack of statutory law has forced Pennsylvania courts to reform administrative procedure by applying the state constitution. These decisions seem ill-informed and they unduly constrain the legislature. On the other hand, Pennsylvania's system of uniform administrative procedural rules is a significant innovation. Pennsylvania administrative law needs updating, but the process of achieving reform will be tedious and difficult. The California experience should prove valuable to Pennsylvania as it undertakes this process.

A COMPARATIVE ANALYSIS OF RULEMAKING PROVISIONS IN STATE ADMINISTRATIVE PROCEDURE ACTS

As the primary source of procedures that state agencies must follow, state Administrative Procedure Acts (APAs) structure administrative discretion in the promulgation of rules and regulations. While the federal APA has been studied extensively, much less has been written about state procedural statutes. This article describes the major rulemaking provisions in state APAs and provides a broad, comparative, and systematic understanding of these provisions. Our analysis yields three major findings. First, state procedural statutes vary considerably in the extent to which they structure administrative discretion in rulemaking. Second, adoption of these rulemaking provisions tends to vary in a systematic way, as states first incorporate due process provisions, and then adopt responsiveness and rationality provisions. Third, in the area of procedural regulatory reform, states have made considerable strides in reforming regulatory administration.

THE POLITICS OF LEGISLATIVE CURTAILMENT OF ADMINISTRATIVE RULEMAKING: OBSTACLES TO POLICE‐PATROL OVERSIGHT

State Administrative Procedure Acts (APAs), like their federal counterpart, attempt to even the odds that citizens’rights will be protected as administrative agencies exercise quasi‐legislative and quasi‐judicial functions. North Carolina is one of several states which has recently attempted to constrain agency power in rulemaking and complaint adjudication. This is a case study of policy outcomes attained by the North Carolina General Assembly in its 1985 revision of the state's APA. Why did some state legislators’efforts to assume stricter oversight over administrative rulemaking fall far short of the kind of control and accountability they aimed for? We explore three types of obstacles to APA reform encountered in North Carolina. Each is relevant to other states. First, direct surveillance or “police‐patrol” techniques of legislative oversight impose undesirable political costs on legislators. Second, there is an absence of (or categorical precedence is against) the adoption of such techniques. Third, executive‐legislative branch conflict and complex separation of powers issues arise when state legislatures attempt to curtail administrative rulemaking in significantly new and restrictive ways.

Legal Control of Government: Administrative Law in Britain and the United States

This work compares the sytems of legal power limits for the governments of these two countries. It includes discussions of judical interpretations and legislative reforms, such as the Administrative Procedure Acts in the United States and the Council on Tribunals and the Parliamentary Commissioner in Great Britain.

Administrative Law. Taft-Hartley and Administrative Procedure Acts Held to Broaden Scope of Judicial Review of NLRB Orders and to Require Court's Consideration of Examiner's Findings

Administrative Law. Taft-Hartley and Administrative Procedure Acts Held to Broaden Scope of Judicial Review of NLRB Orders and to Require Court's Consideration of Examiner's Findings