1 Early Views on the Codification of Administrative Procedure

The idea and suggestion that administrative procedure should be regulated by legislation date back almost two centuries. In Restoration France, de Gérando was already devoting considerable attention to the study of administrative procedure and suggested its codification.²²⁵ Three decades later, Mallein reconsidered the issue and concluded that the disadvantages of codification vastly exceeded its advantages,²²⁶ a conclusion that would remain unchallenged in France for many years. Consequently, despite the influence of French administrative law from the point of view of judicial review, two other European countries seized the leadership regarding the regulation of administrative procedure, namely Spain and Austria.

In Spain, legislation was approved by Parliament in the same year as the Civil Code (1889). Though the Act dealt mainly with the judicial review of the administration, it also laid down a few general provisions concerning administrative procedure, particularly on hearing the interested parties and the notification of administrative acts.²²⁷ Its importance cannot, therefore, be neglected, also because it set an important precedent for the administrative procedure legislation adopted in 1958.²²⁸ However, its effectiveness was undermined because each central department developed its own rules of procedure, leading to the emergence of a ‘disordered body of rules’.²²⁹

This explains why the Austrian administrative procedure legislation of 1925 was not the first.²³⁰ However, with some justification, it is usually regarded as the most important of its time for two reasons. On the one hand, it meant that comprehensive administrative procedure legislation was enacted; on the other, this legislation soon exerted an important influence over other European legal systems. These aspects will be considered in the sections that follow.

A brief terminological clarification is called for. The term ‘codification’ is often used in more than one way. It is sometimes taken to mean a statement of existing practice in a piece of legislation. Another option is the definition of general principles with the approval of parliamentary institutions. This may preserve the flexibility of the law, but it is not regarded as a real form of codification, unlike the complete and systematic statement, in code form, of both general principles and detailed rules. There may be various solutions between the last two options, depending on whether the law is stated from sector-specific rules, practice and judicial decisions, or created.²³¹

2 The Austrian Turn: Background

There is certainly no shortage of studies concerning the Austrian administrative procedure legislation of 1925, mainly – though not only – in academic works written in German.²³² It may be helpful to take stock of the existing literature from four points of view. Firstly, several commentators agree that Austria benefited from the extensive case law of the Administrative Court (Verwaltungsgerichtshof) created in 1875. For five decades, the Court’s rulings obliged public authorities to respect not only traditional rights, such as property and freedom of trade but also procedural rights. The Court took important steps in this direction. Initially, it judged individual cases without even citing its precedents. It thus acted from a sort of micro perspective. A macro perspective was provided by academic works, particularly those of Tezner.²³³ The macro perspective examined more systemic concerns and sought to address them.

Secondly, as is often the case with administrative procedure legislation, including that of the US and Germany,²³⁴ it is the result of a complex and lengthy political process.²³⁵ As early as 1875, when the Court was created, there was some debate as to the principles it had to guarantee, but eventually the very concise formulation that was approved referred to ‘essential procedural infringements’. Subsequently, while some observers argued that the Court’s case law was not sufficient to ensure adequate protection of individuals’ rights, the executive emphasized the need for its action to be ‘unhampered by legalistic norms’.²³⁶

Thirdly, there are some shortcomings in the standard account according to which there was not only a fundamental continuity between the judicial definition of procedural requirements and primary legislation but also a sort of natural progression. There are two aspects to consider. One is that a first attempt to adopt administrative procedure legislation was made in 1911, but it failed.²³⁷ The question that thus arises is what conditions favored the 1925 reform. The other aspect concerns legislative intent. According to the standard account, the legislator addressed the question of whether legislation should be required for administrative procedure in the framework of institutional reforms, at the heart of which lay the new Constitution. In other words, the legislative intent was to generalize and thus reinforce the procedural requirements drawn up by the Administrative Court.

However, there is more than one reason for viewing the argument from legislative intent with caution. First, a silent premise underlying the argument is that, in a democracy, parliamentary process operates in such a way that Parliament is either the direct initiator or the controller of all that emerges formally as primary legislation. But the reality is different, as most of what becomes legislation stems from the bills introduced by the executive. It is, however, amended as it goes through the parliamentary stages.

The argument from legislative intent is also weakened in a more specific way. It is predicated upon the assumption that Parliament simply did what it wished to do. For some, it did so principally intending to simplify administrative action, which might have contained public expenditure.²³⁸ This assumption does not, however, fully accord with the facts. What the facts tell us is that the inclusion of administrative procedure legislation within the reforms needed was also influenced by external pressure. It was one of the conditions for delivering the loan requested by Austria.²³⁹ This is a healthy caveat against the belief that there is a necessary correlation between judge-made law and legislation in that the latter codifies the former. As will be observed in the next section, such a belief does not withstand scrutiny. Moreover, to the extent that Austrian administrative procedure legislation was influenced by external pressure, this indicates that we should be willing to consider a broader range of factors, including external pressure for reform.

Thirdly, the argument from legislative intent neglects the importance of context in another respect, namely, its cultural side. As a matter of fact, it does not take into due account the influence of a particularly prestigious school of thought: that of Kelsen. His influence was particularly noticeable in the constitutional requirement that ‘the entire public administration shall be based on the law’.²⁴⁰ It was within this cultural and institutional background, in the golden years of Viennese culture, that a friend and disciple of Kelsen, Merkl, formulated a more precise concept of administrative procedure.²⁴¹ This was necessary, first, because it was vital to draw up a concept of administration, viewed as a public function similar to the legislative and judicial ones and, secondly, because this was felt to be indispensable in view of the postulates of the Vienna School, and its gradualist conception of law in particular. In his treatise, therefore, Merkl affirmed that an administrative procedure, in the strict sense, only existed if the course of action was not left to the free choice of the public authority but was previously defined by a legal norm setting out both the goal to be achieved and, to a greater or lesser extent, the way in which it was to be achieved.²⁴² Interestingly, it was only on the last page of that chapter that Merkl mentioned the Austrian Act of 1925, and he did so only to acknowledge that the Act had the merit of clarifying for the first time that public authorities could modify an administrative act. In other words, his concept of administrative procedure was not based on a particular legislative framework. It was, rather, the product of Kelsen’s pure theory of law.

3 The Austrian Turn: Principles

The Austrian legislation of 1925 included five statutes: the first clarified that agencies would be subject to other statutes; the second was the Administrative Procedure Act; the third Act regulated criminal administrative procedure; the fourth concerned the execution of administrative decisions, while the fifth established simplification measures.

Of the general principles governing administrative procedure, at least four deserve mention. The first is the prohibition of bias or impartiality. Interestingly, these legislative provisions dealt with both family and political ties and contained a default rule concerning the ‘other important reasons that are likely to cast doubt on their impartiality’ (§ 7). Needless to say, this was a problem widely felt at the time, given the growing influence exerted by mass parties, as distinct from the political patronage of the relatively small political organisations of the liberal period.

The second principle was the individual’s right to be heard before a public authority could take a decision that might adversely affect his or her interests. While this principle was found, at least from the time of the Belle Époque, in other legal systems, it was not only clearly stated in the Austrian legislation, but there was also an important distinctive trait, namely that participants’ submissions could also be presented orally (§ 13), in which case they could ‘be recorded in transcripts so as to convey their essential content’ (§ 14) and, therefore, be kept. The generalized solution was more advanced than those of other legal systems at that time and is still so with respect to more recent legislative frameworks, where there is only an exchange of documents between citizens and public authorities. Thirdly, the files kept by the competent administration were accessible to the party concerned (‘inspection’, in the terminology of §17).

Fourthly, the content and form of the administrative decision were regulated in detail. To adopt Shapiro’s subtle distinction,²⁴³ there was not only a giving-reasons requirement in its simplest or purely procedural version, namely the requirement to provide at least some reason for the decision of a public authority exercising its discretionary power. There was also the requirement to provide reasons ‘if the position of the party [had not been] fully taken into account or if the objections or applications of the participants [had been] rejected’ (§ 58). There was thus a sort of dialogue requirement as the public authority was obliged not only to justify its choices but also to do so in the light of the arguments and evidence produced by the interested party. From the comparative perspective, it is interesting to add that the Austrian legislation neither imposed a procedure for rulemaking nor set out general standards governing it. In this respect, it differed from the US apa (1946), which established notification and comment requirements.

All this helps to explain the opinion that the US apa and the Austrian legislation can be situated at opposite ends of an ideal continuum. In this view, the former is an ideal type of administrative procedure legislation bringing debate and pluralism within the administrative sphere. The latter, instead, is based on the idea that administration, in the operational sense, should not differ substantially from the judicial function. This is evident at the level of general principles, such as neutrality and independence, and in the language of legislation, for example, when it uses the term ‘parties’, typical of judicial proceedings. Moreover, it clearly emerges in the recognition and protection of the right to be heard, as a protection from any Kafkaesque and dehumanizing series of events that would give the individual no possibility to interact with those who wield public authority.²⁴⁴

In this case, there is, however, an excessive emphasis on the judicial model. Firstly, one commentator has observed that other requirements of natural justice, eg, that the tribunal be unbiased, were ‘not so firmly entrenched in Austrian law’.²⁴⁵ Secondly, the idea that each case must be adjudicated by an independent umpire is clearly appealing, but it should not be forgotten that the Austrian legislation was adopted at a time of fundamental change, ie, from that of a State entrusted mainly, though not only, with the functions concerning the maintenance of social order to one intending to have a decisive influence on the shape of the social order.²⁴⁶ As a variation of the preceding argument, Austrian reformers were not unaware that a governmental agency also has the task of implementing policies. But, unlike in the US, they were less concerned with rulemaking, among other things because essential public services were delivered by public bodies²⁴⁷ and retained the traditional idea that the administration par excellence is one which takes the form of individual decisions, which confirms that context matters, on both the institutional and cultural levels. However, as will be seen in the next sections, what characterizes it, together with the intrinsic quality of Austrian administrative procedure legislation, is its diffusion across Central and Eastern Europe.

4 An Area of Agreement between Legal Systems

The research findings show three points of general interest. The first is that there was indeed a spread of Austrian ideas and norms, but it was uneven. It was more robust in some nations that adopted some kind of administrative procedure legislation, namely Lichtenstein, Czechoslovakia, Poland, and Yugoslavia.²⁴⁸ It was much weaker in other neighbouring countries, such as Hungary and Italy, where no general legislation was adopted, although the Austrian codification generated interest among public lawyers. There was less interest, culturally and politically, in still other legal systems, those of France and Germany.

Secondly, that area of agreement between Austria and its neighbours was even more interesting than had been thought, from two points of view. The concept of ‘administrative procedure’ was regarded as distinct from the innumerable forms of administrative proceeding provided for, governed either by sector-specific rules or by practice and custom. Moreover, an area of agreement can be identified not only in terms of generic values and ideals such as justice and good governance but in terms of principles and standards. Two examples, concerning the right to be heard and the duty to give reasons, look particularly interesting. The individual’s right to be heard was recognized and protected by all the other legal systems that adopted general administrative procedure legislation. There were, however, some nuances. For example, in Liechtenstein, not only were individuals entitled to make their case but each party had the right to ‘express its views on all relevant facts and circumstances’, including those ‘brought forward by other parties’ and experts.²⁴⁹ The Yugoslav apa required parties to be ‘duly heard’.²⁵⁰ The Austrian solution concerning reasons was followed too, but to a lesser extent. Whereas in Lichtenstein the administration was required ‘to justify the decision taken in a convincing manner’,²⁵¹ Polish legislation established a more limited requirement to give reasons only in the event of an adverse decision, and that of Yugoslavia required the decision-maker to give a statement of reasons concerning the ‘decisive’ aspects but made an exception if the party’s request was fully met.²⁵² While all this confirms that there was an area of agreement in terms of principles, it also shows that there were different aspects within such an agreement; these concerned both the contents of the procedural requirements and their limitations.

The third point of general interest concerns the relationship between general administrative procedure legislation on the one hand and sector-specific rules and case law on the other. This relationship has seldom been considered in previous comparative studies, but it is both interesting and important to understand whether, and to what extent, procedural protection has changed. For this purpose, four issues have been selected, the first of which concerns the internal functioning of public authorities, especially disciplinary measures against civil servants; the other regards some important ‘external’ decisions, including authorizations and licences, expropriation, and urban planning.

Although these issues obviously do not provide an exhaustive picture of the whole field of administrative procedure, they furnish some elements of comparison. The dismissal of a civil servant provides a good test for understanding the extent to which the power of the State is limited. Interestingly, in all the legal systems that formed part of the cluster, the State had discretionary power to dismiss its servants, but this power had to be exercised within the strictures of administrative procedure. Moreover, the procedural requirements illustrated above, the right to be heard, and the giving-reasons requirement had to be respected. As regards the opening of a pharmacy, it was subject to administrative authorization, and the power to issue was discretionary, sometimes including an assessment of technical expertise, and sometimes ‘good reputation and trustworthiness’, too. However, this authority had to be exercised in a regular administrative procedure, in the course of which the applicant had the right to an oral hearing and then, in the event of an adverse decision, judicial remedies could be used in the courts. Expropriation is important, too because the right to property was protected by Western constitutions and civil codes. However, they allowed private property to be seized, provided it was in the public interest and that compensation was paid. There was nothing akin to any procedural protection equivalent to the ‘due process clause’ in the US Constitution. Some protection was provided by sector-specific rules and case law. For example, if building a railway line required the expropriation of both land and houses owned by an individual, a particular procedure – sometimes a legislative one – had to be followed, in the course of which the person concerned could intervene and receive legal assistance. Lastly, urban planning became an increasingly important manifestation of administrative power. Amid various differences concerning the nature of authority and its allocation, before 1945 a certain procedure had to be followed everywhere, in the course of which neighbours had to be informed; and in some cases, appeals could be brought before higher administrative authorities.

5 A Case of Diffusion

The discussion thus far has shown that Austrian administrative procedure legislation has been very influential. However, the concept of ‘influence’ is not satisfactory. Some use it at the macro-level, for example, in studies concerning the influence exerted by French administrative or judicial institutions in other legal systems.²⁵³ Others use it at micro-level, for example, concerning the influence of the proportionality principle within the legal systems of the EU member States.²⁵⁴ It is, therefore, used in different ways and contexts. Wieacker’s analysis of the assimilation of Roman law in the field of private law in Germany confirms this criticism. He observed that ‘the simplest concepts, such as ‘influence’ or ‘impact’, are harmless but rather meaningless’²⁵⁵ and elaborated the contours of ‘reception’. Nevertheless, this concept, too, is used in more than one way: generically, with regard to various uses of foreign law in various contexts, and specifically, in relation to the dissemination of Roman law in Germany and other parts of Europe at the time of jus commune.²⁵⁶

The concept of ‘diffusion’ conveys the impression of the spread of something across space.²⁵⁷ While academic studies initially focused essentially on private law, there is also recent scholarship concerning borrowing and transplants in constitutional law.²⁵⁸ The concept of ‘diffusion’ looks promising because we can rely on it to accomplish two goals. One concerns this particular case, and we may be able to identify the characteristics that made Austrian administrative procedure legislation significant for other legal systems. More generally, pinpointing the factors that led to the diffusion of such legislation could help better understand other cases involving similar legislative frameworks, including Spanish administrative procedure legislation in Latin America, which will be examined in the following chapter.

As regards Mitteleuropa, three elements are worth mentioning. First, this case involves a plurality of legal systems, unlike many others where there is a bilateral relationship between a donor country and a recipient one. A group of legal systems responded to like conditions in a similar way, adopting basically similar principles and institutions. Nevertheless, they did so asymmetrically as the principles and institutions elaborated in Austria were taken as a model by the other legal systems, with a view to modernizing their administrative institutions. Finally, they did so without any sort of formal coordination.

Another element concerns the paths to reform. They were less indirect than we observed in our previous enquiry into the judicial formulation of general principles of administrative law from 1890 to 1910. For example, the English model of judicial review of administration was appreciated by both German and Italian liberals, also with a nod to the Belgian institutions. Conversely, in this case, there was a direct one-way transfer from Austria to its neighbours.²⁵⁹ However, there was not so much a ‘transposition’ of Austrian law. Instead, its ideas and principles were developed within the other legal systems. This probably explains both the success of the attempts to innovate domestic legislation and its durability.²⁶⁰

There is still another important element that concerns the instruments used by reformers: formal instruments were used to adopt administrative procedure legislation everywhere. The predominant choice in both Poland and Yugoslavia, like Liechtenstein, was to act through parliamentary legislation, while Czechoslovakia proceeded by way of executive regulation. But there was always a formal adoption of the framework governing administrative procedure. However, the success of the Austrian model largely depended on the fact that it was not perceived as foreign law,²⁶¹ despite the dissolution of the Habsburg Empire. It was supported by jurists and judges who had worked within the Habsburg institutions and shared the same legal and linguistic culture. Legally, the primary justification for the requirements of procedure was the ideal of Rechtsstaat and its corollaries: that uncertainty about the procedure to be followed and disregard for the pre-established order make errors more likely, the outcome of administrative action less (or not at all) predictable and, last but not least, can undermine public confidence in the fairness and propriety of the decision-making process. Linguistically, German was the lingua franca of all those lawyers and judges. The process whereby ideas and legal institutions spread beyond Austria through this group of nations was thus qualified by the existence of vicinitas and affinitas (vicinity or proximity and affinity) to borrow the concepts used by Gorla,²⁶² reinforcing those ties. As a specialist of the Habsburg Empire, Evans, observed at the end of his book on the making of the commonwealth that what had once been united could not be entirely dissolved.²⁶³ Hence the remark that this commonwealth was a laboratory for multinational coexistence and should, therefore, be reconsidered not only because of the authoritarian and communist regimes that replaced it.²⁶⁴

6 The Wider Reach of Austrian Ideas

Thus far, we have considered the area of agreement that emerged between some legal systems. However, the area of disagreement is also significant because the negative results, which do not support the initial hypothesis and in some sense disprove it, limit and qualify the relevance and significance of the positive results.

To begin with, not all the peoples formerly included in the Habsburg Empire adopted general administrative procedural legislation. A case in point is Hungary, which only adopted such legislation after the failed attempt to eliminate Soviet rule in 1956. Notwithstanding the commonality of principles and practices with Austria under the previous legal system, both Hungarian politicians and public lawyers were against the adoption of general administrative procedure legislation. Nor was legislation of this type adopted by the major European administrative systems. Included among these is not only the UK, but also the principal administrative systems of Continental Europe in the first half of the twentieth century: those of France, Germany, and Italy. They provide a contrast to the Mitteleuropean countries because they did not follow Austria in adopting administrative procedure legislation during the timeframe of interest here. And the contrast is interesting for two reasons: their private law was codified at that time, and they adopted general administrative procedure legislation at a later stage.

It would thus appear that there was broad disagreement between the legal systems compared. However, we should ask ourselves whether there is a risk of superficiality in confining legal comparison to the level of ‘positive law’.²⁶⁵ Some commentators have observed that the area of disagreement among the legal systems of Europe is probably considerably narrowed if one takes into consideration not only legislative provisions but also other sources, including the general principles defined and refined by the courts, and government guidance to public authorities and administrative customs.²⁶⁶ This observation aligns with our findings in the previous chapter that the supposed contrast between the UK and France was much less significant than had been believed. In all those legal systems, the general principles including legality, due process of law, and publicity served to prevent misuse and abuse of power by public authorities. It cannot be ruled out a priori, therefore, that the law on administrative procedure that can be found in the countries that have opted for one type of general legislation or another may not be very different from the law that exists in the absence of such legislation. This task will be accomplished on the basis of a ‘factual analysis’, as will be explained later.

Meanwhile, the importance of the Austrian tradition can be better understood from a dynamic perspective. During the previous century, it was the administrative act (décision administrative, Verwaltungsakt),²⁶⁷ that held centre stage because it was the ordinating concept with a view to judicial protection in some respects, reflecting the vision of the contract that, according to a strand of thought in private law, prescinded from previous activities and operations. On the contrary, in the Austrian legislation of 1925 administrative procedure – as opposed to the administrative act or determination – had a fundamental importance. What emerged was a process-oriented vision of administration in the functional sense. Thus, a public authority could not take a decision – for example, as to whether a company should be awarded a license or should be ordered to cease a conduct regarded as not fairly competitive – without respecting certain procedural requirements. The influence of this view of administrative law was wide-ranging. Although expressed in highly sophisticated terms by Merkl, the Austrian tradition owed much to the previous fifty years of judicial development, to the work of academics such as Bernatzik and Tezner. Sandulli, the public lawyer who wrote the first monograph on administrative procedure in Italy, expressly recognized the importance of those works, for example.²⁶⁸ Some years later, Langrod did not hesitate to admit that in the French and German legal cultures there was no such thing as a precise concept of administrative procedure.²⁶⁹ More recently, Weil has pointed out that the French legal literature was ‘uninterested in how the administrative decisions are taken … when one speaks of ‘administrative procedure’, … what is meant … is the procedure in the courts’.²⁷⁰ Subsequently, administrative procedure has become increasingly important in public law.²⁷¹

A doctrinal change thus occurred that was similar to what Shapiro highlighted with regard to the US. He observed that Gellhorn regarded as ideological (in a negative sense) Pound’s charges that those who supported the adoption of the apa sought to regulate the practices of agencies ‘rather than to subject those practices to the rules of traditional private law’.²⁷² Other writers, such as Landis, called for a greater focus on the administrative process.²⁷³ As a consequence, a new ‘model of administrative law as administrative process’ emerged,²⁷⁴ and the legal relevance of requiring that administration – functionally intended – shall be conducted according to established and published procedures was gradually recognized. The importance of administrative procedure as the ordinating concept will have to be tested in two ways: with regard to legislation and through a factual analysis.