ADMINISTRATIVE PROCEDURES

Class: 1

Class: 2

Administrative procedures

Class schedule:1. The notion of legal administrative relationship.2. Parties to the proceedings3. Enitities who can participate as parties to the

proceedings4. Other participants

Legal administrative relationship

Legal administrative relationship is a legal relation. It can be consider as a situation, in which one subject has an obligation (duty) to behave towards another. The obligation exists due to a norm in force.

According to F. Longchamps legal relation forms when the subjective law has such meaning for two subjects that under certain conditions, the legal situation of one subject is combined in some way with the status of the other. When the subjective law is also admin based, we deal with it as an administrative legal relationship.

Elements of legal administrative relationship

Elements of an administrative legal relationship:1) subjects (actors or entities) of the administrative

relationship (e.g., administrative authorities, parties and other participants),

2) objects of the administrative relationship (demeanour of the entities), and

3) content of administrative relations (rights and duties of the entities).

Legal administrative relationship

Administrative authority conducting the proceedings

Administrative powerAdministrative and legal situation

OBLIGATION/RIGHT

Party to the proceeding(natural person, legal person, imperfected artificial person)

PUBLIC AUTHORITIES

According to Professor Jan Boć public administration body can be defined as:1)a person or a group of people in case of a collective

organ,2)being in the organizational structure of the state or in a

local self-governing body,3)appointed in order to realize administrative norms in

the manner and results appropriate for that law,4)acting within the granted legal competences.

’JURISDICTION’.

Word ’jurisdiction’ is similar with the term ’competence’.However, aforementioned term only consists of a procedural aspect and it can be understood as ”the realization of competence by the use of administrative procedural law ending in a specified administrative act (administrative decision)”.The major types of jurisdiction, which are distinguished, and must be taken into account in determining the relevant authority, are:1) substantive jurisdiction, 2) territorial jurisdiction.In legal theory there are also other types of jurisdictions distinguished:3) competent jurisdiction,4) delegated jurisdiction,5) functional jurisdiction.

Substantive jurisdiction

Substantive jurisdiction - the power of the given authority to dispose a given category of matters’

Substantive jurisdiction of a public administration authority is determined according to the provisions governing the authority’s scope of operation.

The provisions of the substantive law (e.g. the Building Law, the Act on Social Assistance,) empower a specific authority to issue a specific type of decisions.

Territorial jurisdiction

Territorial jurisdiction - the power to dispose of the matters which arose within a specified territory.Territorial jurisdiction of a public administration authority is determined: 1)with regard to matters concerning real property – according to its place

of location; and if the real property is located in the territory falling under the jurisdiction of two or more authorities, the authority in which territory the greater part of the real property is located shall be competent to decide the matter,

2) with regard to matters concerning the operation of an employing establishment – according to the place where the employing establishment is, has been or is to be operated,

3) in other matters – according to the domicile (registered office) in the country, and in case of lack thereof – according to the place of residence of the party or one of the parties; if neither of the parties is domiciled (has a registered office) in the country nor neither of them has a place of residence in the country – according to their last domicile (registered office) or residence in the country.

If territorial jurisdiction cannot be determined according to the above mentioned rules, the matter shall be disposed of by an authority having jurisdiction over the location where the incident constituting the basis of the proceedings occurred; and if such location has not been determined – by an authority having jurisdiction over Śródmieście district in the Capital City of Warsaw.

Functional and instanced jurisdiction

Functional jurisdiction: the competence to adjudicate the case in the 1st or 2nd instance, or ocassionaly the functional division of the competence inside the public apparatus to hel more effectively deal with matters.

Example of instanced jurisdiction:Act: Teacher’s Card - cases related with granting nomination for contract teachers:1st instance - Authority operating given type of public school: mayor, starost, marshall (for example: mayor in cases of giving acts of granting contract nomination for teachers who work in primary schools)2nd instance – Chief Education Officer

Delegation jurisdiction

Delegation jurisdiction is a result of delegation when one administrative organ pass processual acts or even cases on to the other administrative organ.Example:Art. 52 of The Code states that during proceedings, the public administration body shall request the relevant local body of the government administration or local government body to summon a person residing in a given district or town to give an explanation or evidence or to carry out other acts relating to the proceedings. The body conducting proceedings shall at the same time indicate the circumstances that are the object of the explanation or evidence or other acts that are required to be carried out.

Disputes between authorities

Administrative disputes are resolved by administrative bodies that act in accordance with the provisions of the Code of Administrative Proceedings. These bodies guard the rule of law and take all the steps necessary to carefully clarify the stat of affairs and resolve the issue, with regard to the social interests and the justified interests of citizens.

The application to have a dispute resolved may be submitted by:

1) the party,

2) authority of the unit of self-government or other public

administration authority which is in dispute,

3) minister who has the competency over public administration

matters,

4) minister who has the competency over justice,

5) General Public Prosecutor,

6) Ombudsman.

Parties to the proceedings

1. The definition of a party to the administrative proceedings is one of the key term in doctrine and practice of the administrative procedural law.

2. There are two legally separate entities in the administrative proceedings, i.e. “the public authority”, represented by a public administration authority, and another person – natural or legal (in exceptional cases an entity with no legal personality),

3. The definition of a party to the administrative proceedings comprises only such persons and it does not include the administrative authority having superior position in the proceedings.

PARTIES TO THE PROCEEDINGS

Pursuant to Article 28 of the Polish Code of Administrative Proceedings:Each person whose legal interest or duty the proceedings concern, or who requests the authority’s action due to his legal interest or duty, shall be a party to the proceeding. There are two elements of the definition of a party: (a) the legal capacity and (b) the individual’s ability to show legal interest or duty.

Determining the parties to the proceedings

The identification of all entities being the parties to the proceedings (determination of parties) is of a key importance to the proceedings. The public administration authority is responsible for the correct determination of the parties:1. the authority shall inspect whether the person submitting the application (the applicant) is a party. 2. the authority shall also identify people other than the applicant who are the parties. By determining the parties to the given proceedings the authority establishes a list of entities who may be active in the proceedings. Such entities will participate in all actions undertaken in the proceedings, will be informed about the proceedings and will have the right to interfere. The entities will have also the right to appeal against any decision issued in the proceedings.

ENTITIES WHO CAN PARTICIPATE AS A PARTY TO THE PROCEEDINGS

Such a right has been vested with: (a)social organizations, (b)a public prosecutor, (c) the Ombudsman. The entities participating as a party may act for the benefit or detriment of the actual parties; in particular, they may: (d)view case files, (e)submit evidentiary motions, (f) submit appeals.

Appointment of an attorney-in-fact

1. A party may act through an attorney-in-fact, unless the nature of the action requires that it be taken by the party personally.

2. Grounds and procedure of establishing an attorney-in-fact are given in art. 33 § 1. According to this article any natural person having capacity to enter into legal transactions may be an attorney-in-fact.

3. The power of attorney shall to be granted in writing or submitted to the minutes.

Appointment of a representative

1. A public administration authority shall apply to the court to designate a representative for an absent or incapacitated person, unless such a representative has already been appointed.

2. If an action is to be taken immediately, the public administration authority shall appoint a representative for an absent person, who shall be authorized to act in the proceedings until an appropriate representative has been appointed by the court.

Thank you for your attention

The presentation was based on:1. M. Możdżeń-Marcinkowski, Introduction to Polish administrative

law. Second revised edition, Warszawa 2012.2. H. Izdebski, Public administration and administrative law,

Warszawa 2005.3. J. Jagielski, Administrative law, [in:] Introduction to Polish law, S.

Frankowski, A. Bodnar (ed.), The Hague, The Netherlands: Kluwer Law International, 2005.

4. M. Bińkowska, A. Chechłowski, R. Walawander, The Code of Administrative Proceedings, Warszawa 2010.

5. A. Korzeniowskia-Polak, Administrative procedure, [in:] Introduction to Polish law, Anna Wyrozumska (ed.), Łódź 2005.