7. Public Authorities, Rule of Law and Legal Powers
→ lots of power given to the state, exercised by admin authorities. Actions being the decisions that the admin takes.
Lecture
Introduction
● Sources of admin law: admin bound by rules that come from 👇
○ Treaties / EU law → highest form of law: directly applicable and enforceable
→ national law in correspondence with EU law
■ In UK they need to transpose it to national law first!
○ Statutory law: made by legislation but sometimes no need of Parliament, lowest
authorities can also make legislation but need competences for it
○ Legal principles: laid down in statute sometimes, other times as unwritten law
○ Judge made law: power to make the law in some systems → big role even in civil law
systems because
■ Parliament’s statutes have gaps that need to be solved by the judge
⇒ after voiding decisions by courts, a new decision needs to be taken and judge
decides the time limit for that (creation of law)
● Hierarchy of norms:
○ Treaties / EU law > Constitution / Basic Law > Laws by Parliament > regulations by
government > by ministers > by national public authorities > by provincial authorities
> by municipal authorities
■ In case of clashes, later law at the same hierarchical level is the one that
applies → earlier law gets cancelled
+ Specific rules takes precedence over general rules
● Rule of Law:
○ Main features:
■ Accessibility of the law + equality before the law
■ Human rights + access to court with independent judges
■ Principle of legality: exercised powers must be conferred, directly or
indirectly by act of parliament → cannot be used ultra vires (beyond scope of
conferred powers) ⇒ limited discretionary powers
⇒ applicable when duties imposed to citizens, right given and of factual
action (no legal effect but factual)
⇒ central principle because of legal certainty, protection against arbitrary government and
democratic legitimacy (statutes by Parliament so need to follow it)
“Can impose sanction when actions acting contrary to public interest” → violates principle of legality
because vague and against protections of it
,General Administrative Law Act (GALA)
→ in most systems, there is a general act with general principles and rules applicable to all so
impossible to regulate everything there ⇒ thousands of specific statutes that regulate the rest
● Composition: definitions & scope; dealings between individuals and admin; general
provisions concerning decisions; special provisions; enforcement; general provisions
concerning objects and appeals; special provisions; special provisions concerning appeals
Administrative Authorities
● Definition: authorities empowered to exercise public powers to unilaterally confer rights and
duties on citizens
○ Public authorities: governments, ministers, secretaries of state, mayors, city councils..
○ Public law legal person most of the time = state, regions, government, etc. No public
admin authority but with organs that are the public authorities
→ city of Amsterdam not admin authority but with organs that can (city council,
mayor, payer and aldermen, etc.)
■ Organs with powers attributed by statute or regulations!
→ public legal persons are not admin authorities but have them
France Germany Netherlands
State represented by President, Federation represented by
government, municipalities President and Chancellor and
smaller divisions
● Why important to know: that something is a public authority
○ Change legal position: can impose things
○ Procedural function: appeals only against decision by admin authority
○ Legal principles: they must comply to them → special rules that apply to admin
authorities that do not apply to private persons / entities
● Types of admin authorities:
○ Organs of public law bodies
○ Non public law entities → private persons that are vested powers in statutory law
(make decisions, give subsidies, etc.) (IND, central bank)
○ Independent admin organs / quangos (UK) - agencies:
■ Quangos = quasi non-governmental organisation: put in distance from the
State ⇒ private law entities, shifting away responsibility
→ rationale: more efficient, also allows other entities to take decisions that the governmental
bodies do not want to decide on (political reason) → more controversial
But problem of less democratic oversight and less accountability.
,Administrative Actions
● Types of actions:
○ Factual actions: no intended legal consequences but might have intended ones → but
may have relevant factual consequences
■ General rule: reviewable in EN, DE and FR but not in the NL
○ Decisions in individual cases: most typical actions by the admin
Example: granting residence permit
■ Characteristics: or refusal to take decision
- Taken by admin authority
- With intended legal effect (change legal position of subject)
- Based on statutory public law power ⇒ when only public body can grant that decision
- Directed at demarcated group of persons
⇒ reviewable in all mentioned legal systems
○ General acts in concrete cases
○ General acts in abstract cases: laws, regulations, regulatory instruments, by-laws
■ Characteristics:
- Created by parliament or by admin authority
- With intended legal effect → changing legal position of subject
- Based on public law power to enact regulations
- Directed at unspecified addresses
>< Policy Rules: not based on leg power so not legally binding rules/regulation
= exposition of how public authority intends to use its discretionary powers → policy
rules must be applied unless there are special circumstances because of principle of
consistency and equality
● Why important to know this: [depends on the system because in UK it does not matter for
instance]
○ Availability of judicial review / access to court
○ Procedure of adoption of the action
○ Direct / indirect challenge to action → if there is a statute that you disagree with,
instead of appealing to admin, but appealing decisions that are based on that statute
○ Entry into legal force
○ Applicability of norms / principles can differ: different norms for decisions and for
general actions
● Delegated public powers: how it is obtained
○ Constitution >> Act / Statute >> Decree >> Admin general order / bylaws
Example: Basic Law > Passport Act > Passport Decree > Passport implementation regulation
, Admin Law in FRANCE
1. Definition and Scope of Admin Law
● Historical background:
○ From Conseil d’Etat 1799: role of judge and central government’s advisory body on
legal matters → now advisor to Parliament
■ Independent body with judicial review techniques → recours pour excès de pouvoir
■ Conditions: service public matters + admin liability subject to special rules
adapted to service public necessities
○ Scope of Admin Law: WIDE
■ Reasons: romanticist legal system so strong public/private divide
(1) public liability and public contracts included in admin courts
(2) rules for each type of admin action and entity
⇒ through puissance publique for service public
2. Legal design of the admin
● Public legal persons: in charge of public functions, entities being
○ State | local entities | public establishments
⇒ divided among public organs (individual or assemblies)
● Legal arrangement of the state: admin powers by president and government
→ important decisions have to be agreed by both parties
○ Quangos: independent administrative authorities
Executive National Authorities Parliament
President & Government National Assembly (direct) and Senate (elected
+ Quangos and supervised by the government by local authorities and members of the NA)
Local State authorities Regions > departments > municipalities
Deconcentrated authorities (communes)
→ regions and departments with prefects
○ Local government: decentralisation process of giving more competences to local
authorities [three steps process]
■ Deferre statutes: regionalisation process starting
■ Constitutional reform: amplification of degrees of decentralisation
■ Legislative reform: simplify local structures
⇒ local entities considered as legal persons with autonomy
3. Substance of Admin powers
● Public powers:
○ Public power prerogatives: specific legal competences that other entities do not
possess = prerogatives de puissance publique
→ lots of power given to the state, exercised by admin authorities. Actions being the decisions that the admin takes.
Lecture
Introduction
● Sources of admin law: admin bound by rules that come from 👇
○ Treaties / EU law → highest form of law: directly applicable and enforceable
→ national law in correspondence with EU law
■ In UK they need to transpose it to national law first!
○ Statutory law: made by legislation but sometimes no need of Parliament, lowest
authorities can also make legislation but need competences for it
○ Legal principles: laid down in statute sometimes, other times as unwritten law
○ Judge made law: power to make the law in some systems → big role even in civil law
systems because
■ Parliament’s statutes have gaps that need to be solved by the judge
⇒ after voiding decisions by courts, a new decision needs to be taken and judge
decides the time limit for that (creation of law)
● Hierarchy of norms:
○ Treaties / EU law > Constitution / Basic Law > Laws by Parliament > regulations by
government > by ministers > by national public authorities > by provincial authorities
> by municipal authorities
■ In case of clashes, later law at the same hierarchical level is the one that
applies → earlier law gets cancelled
+ Specific rules takes precedence over general rules
● Rule of Law:
○ Main features:
■ Accessibility of the law + equality before the law
■ Human rights + access to court with independent judges
■ Principle of legality: exercised powers must be conferred, directly or
indirectly by act of parliament → cannot be used ultra vires (beyond scope of
conferred powers) ⇒ limited discretionary powers
⇒ applicable when duties imposed to citizens, right given and of factual
action (no legal effect but factual)
⇒ central principle because of legal certainty, protection against arbitrary government and
democratic legitimacy (statutes by Parliament so need to follow it)
“Can impose sanction when actions acting contrary to public interest” → violates principle of legality
because vague and against protections of it
,General Administrative Law Act (GALA)
→ in most systems, there is a general act with general principles and rules applicable to all so
impossible to regulate everything there ⇒ thousands of specific statutes that regulate the rest
● Composition: definitions & scope; dealings between individuals and admin; general
provisions concerning decisions; special provisions; enforcement; general provisions
concerning objects and appeals; special provisions; special provisions concerning appeals
Administrative Authorities
● Definition: authorities empowered to exercise public powers to unilaterally confer rights and
duties on citizens
○ Public authorities: governments, ministers, secretaries of state, mayors, city councils..
○ Public law legal person most of the time = state, regions, government, etc. No public
admin authority but with organs that are the public authorities
→ city of Amsterdam not admin authority but with organs that can (city council,
mayor, payer and aldermen, etc.)
■ Organs with powers attributed by statute or regulations!
→ public legal persons are not admin authorities but have them
France Germany Netherlands
State represented by President, Federation represented by
government, municipalities President and Chancellor and
smaller divisions
● Why important to know: that something is a public authority
○ Change legal position: can impose things
○ Procedural function: appeals only against decision by admin authority
○ Legal principles: they must comply to them → special rules that apply to admin
authorities that do not apply to private persons / entities
● Types of admin authorities:
○ Organs of public law bodies
○ Non public law entities → private persons that are vested powers in statutory law
(make decisions, give subsidies, etc.) (IND, central bank)
○ Independent admin organs / quangos (UK) - agencies:
■ Quangos = quasi non-governmental organisation: put in distance from the
State ⇒ private law entities, shifting away responsibility
→ rationale: more efficient, also allows other entities to take decisions that the governmental
bodies do not want to decide on (political reason) → more controversial
But problem of less democratic oversight and less accountability.
,Administrative Actions
● Types of actions:
○ Factual actions: no intended legal consequences but might have intended ones → but
may have relevant factual consequences
■ General rule: reviewable in EN, DE and FR but not in the NL
○ Decisions in individual cases: most typical actions by the admin
Example: granting residence permit
■ Characteristics: or refusal to take decision
- Taken by admin authority
- With intended legal effect (change legal position of subject)
- Based on statutory public law power ⇒ when only public body can grant that decision
- Directed at demarcated group of persons
⇒ reviewable in all mentioned legal systems
○ General acts in concrete cases
○ General acts in abstract cases: laws, regulations, regulatory instruments, by-laws
■ Characteristics:
- Created by parliament or by admin authority
- With intended legal effect → changing legal position of subject
- Based on public law power to enact regulations
- Directed at unspecified addresses
>< Policy Rules: not based on leg power so not legally binding rules/regulation
= exposition of how public authority intends to use its discretionary powers → policy
rules must be applied unless there are special circumstances because of principle of
consistency and equality
● Why important to know this: [depends on the system because in UK it does not matter for
instance]
○ Availability of judicial review / access to court
○ Procedure of adoption of the action
○ Direct / indirect challenge to action → if there is a statute that you disagree with,
instead of appealing to admin, but appealing decisions that are based on that statute
○ Entry into legal force
○ Applicability of norms / principles can differ: different norms for decisions and for
general actions
● Delegated public powers: how it is obtained
○ Constitution >> Act / Statute >> Decree >> Admin general order / bylaws
Example: Basic Law > Passport Act > Passport Decree > Passport implementation regulation
, Admin Law in FRANCE
1. Definition and Scope of Admin Law
● Historical background:
○ From Conseil d’Etat 1799: role of judge and central government’s advisory body on
legal matters → now advisor to Parliament
■ Independent body with judicial review techniques → recours pour excès de pouvoir
■ Conditions: service public matters + admin liability subject to special rules
adapted to service public necessities
○ Scope of Admin Law: WIDE
■ Reasons: romanticist legal system so strong public/private divide
(1) public liability and public contracts included in admin courts
(2) rules for each type of admin action and entity
⇒ through puissance publique for service public
2. Legal design of the admin
● Public legal persons: in charge of public functions, entities being
○ State | local entities | public establishments
⇒ divided among public organs (individual or assemblies)
● Legal arrangement of the state: admin powers by president and government
→ important decisions have to be agreed by both parties
○ Quangos: independent administrative authorities
Executive National Authorities Parliament
President & Government National Assembly (direct) and Senate (elected
+ Quangos and supervised by the government by local authorities and members of the NA)
Local State authorities Regions > departments > municipalities
Deconcentrated authorities (communes)
→ regions and departments with prefects
○ Local government: decentralisation process of giving more competences to local
authorities [three steps process]
■ Deferre statutes: regionalisation process starting
■ Constitutional reform: amplification of degrees of decentralisation
■ Legislative reform: simplify local structures
⇒ local entities considered as legal persons with autonomy
3. Substance of Admin powers
● Public powers:
○ Public power prerogatives: specific legal competences that other entities do not
possess = prerogatives de puissance publique
