1 Moving towards Administrative Procedure Legislation

After ww ii, as the functions and powers discharged by public authorities expanded and administrative action became more diverse, there was increasing awareness that it needed better regulation. This gave rise to political debates which lasted several years, sometimes decades, in countries such as Belgium and Germany.²⁷⁵ Even where such debates had no immediate impact on the development of legislation on administrative procedure, they showed wider acceptance of the desirability of a general and comprehensive legislative framework. A ‘movement towards administrative procedure legislation’ thus emerged.²⁷⁶

The process of statutory law change is interesting to chart: three main phases can be discerned. The first regards a group of European countries that followed the Austrian model during the 1950s and the early 1960s.²⁷⁷ Like Austria, they adopted general legislation on administrative procedure, but they were not liberal democracies. For example, Spain adopted its new legislation under the authoritarian regime of Francisco Franco. In Central and Eastern Europe, the legal systems that either kept their legislation or adopted it were under Soviet rule. The relationship between this type of legislation and the nature of government is, thus, more complex than it might appear at first sight and needs to be explored. The second wave affected Northern Europe. Norway was the first country to adopt administrative procedure legislation in 1967. Others countries followed some years later, including Sweden (1971), Germany (1976), and Denmark (1985).²⁷⁸ The third wave came after 1989, the year several countries in Central and Eastern Europe began the transition from one-party rule to constitutional democracy.²⁷⁹ Almost all those countries adopted similar legislation, often in the context of institutional reforms, including Lithuania (1999), Latvia and Estonia (2001), Bosnia and Herzegovina (2002), the Czech Republic (2004), and Bulgaria (2006). Meanwhile, various Western countries adopted one type or another of general legislation on administrative procedure, including Italy (1990), Portugal (1991), the Netherlands (1994), and Greece (1999), while Spain altered its legislation (1992). A common trend thus emerged.²⁸⁰

Three indicators may give a better idea of the changing landscape. The first concerns the sample examined in Chapter 4. In the fifty years that followed the Austrian law of 1925, none of the other major administrative systems – those of Britain, France, Germany and Italy – adopted such legislation, though this would change later. Of those nations, Germany was the first to adopt a general legislation on administrative procedure, followed by Italy and, eventually, by France. Britain is a notable exception where the ‘unwillingness to codify reflects […] dislike of the rigidity that can be attendant upon such reform’,²⁸¹ though there is government guidance to public administrations with regard to consultation with citizens. The second indicator focuses on EU member States. The vast majority of them, namely twenty-four out of twenty-seven, have adopted some kind of administrative procedure legislation or another. The exceptions include Belgium, where there is general legislation concerning only some particular procedural requirements such as the duty to give reasons, Ireland, and Romania, where a draft code has been drawn up but not adopted. It can be interesting, though, to add that other European nations which have association agreements with the EU have adopted general legislation on administrative procedure, namely Iceland and Norway, which are included in the European Economic Area set up by the Treaty of Oporto (entered into force in 1994), as well as with Switzerland, which has signed a set of distinct agreements with the EU. It may be said therefore that there is a correlation, though not a necessary one, between adhesion to the European single market and the existence of this type of legislation. The third indicator concerns the Council of Europe. After the dissolution of Yugoslavia, all the nations that declared independence adopted their own legislative framework. Ukraine and Moldova did so several years after gaining independence from the ussr. Exceptions include such different polities as Ireland and the UK, on the one hand, and Belarus and Turkey, on the other.

Three brief remarks are appropriate at this stage. In quantitative terms, the existence of general legislation concerning administrative procedure is increasingly the rule rather than the exception. But although apparently similar and to same extent interconnected, these developments also differ in a number of ways, including the purposes and size of administrative procedure legislation. An important explanatory variable is the influence of previous legislation, for example in the area of the former Yugoslavia. Lastly, the legal systems in question present an optimal degree of diversity for comparative analysis: they are neither too similar nor too different. The focus for comparison is twofold. On the one hand, one can examine the processes through which the common trend has emerged. On the other, the outcome of these processes can be analysed and compared.

2 Socialist Legal Systems and the Austrian Legacy

The reason for a retrospective on the group of countries – Czechoslovakia, Poland, and Yugoslavia – which adopted administrative procedure legislation along Austrian lines is that they were liberal democracies by the standards of the day (though Yugoslavia had been introducing some authoritarian elements as of 1929), but they underwent a regime change in the wake of ww ii, as did Hungary. The term ‘regime change’ is used here descriptively, to denote that ‘socialist’ constitutions replaced the previous ‘bourgeois’ constitutions within the countries that fell under the control of the ussr and only regained full independence after 1989.²⁸²

The administration and administrative law of communist countries were extremely varied.²⁸³ This diversity also regarded administrative procedure. The legislation of 1920s Czechoslovakia was maintained, although its interpretation gradually changed to accommodate new socialist values by virtue of an executive regulation adopted in 1950. In Yugoslavia, although the new rulers formally abolished all previous legislation, the Constitution of 1946 included ‘general administrative procedure’ among the matters reserved to federal legislation.²⁸⁴ Judges and lawyers continued to regard the provisions adopted in 1930 as a frame of reference for solving issues arising between citizens and the public authorities until a new legislative framework was adopted in 1958.²⁸⁵ In Poland, new legislation replaced that of 1928. Interestingly, the Commission tasked with preparing the new legislative framework was explicitly ordered to end ‘a real risk of the persisting influence of bourgeois conceptions’,²⁸⁶ an order which was not fully respected. Where general legislation existed, further differences concerned the exceptions. For example, Polish legislation excluded not only taxation but also any procedure concerning the civil service. It entrusted the executive branch, however, with the power to extend its provisions to other procedure through regulations.²⁸⁷ Hungary, too, adopted administrative procedure legislation with the Law of 9 June 1957, which unlike the others did not list the basic principles.

Nevertheless, there were some common features. Firstly, as in the Austrian legislation of 1925, administrative procedure legislation was of a general kind. For example, the Polish Code of Administrative Procedure established that if a legal provision referred generically to the provisions of administrative procedure, this had to be ‘interpreted as being a reference to the provisions of the Code’.²⁸⁸ Moreover, the Code provided a similar procedure for the various forms of administrative action, thus ensuring a unified pattern.²⁸⁹ The Yugoslav apa, too, laid down a presumption of the applicability of its provisions to all administrative matters.²⁹⁰ Secondly, administrative procedure legislation defined rules similar to the fundamental maxims of natural justice. As Austrian legislation prohibited any ‘bias’ of administrative officers and laid down detailed prescriptions concerning family, business and other important reasons,²⁹¹ the Polish Code established the exclusion of public employees from cases involving family or other connections. The Czechoslovak Act of 1967 provided, more succinctly, for the exclusion of employees from all cases where there was ‘a doubt concerning their own unbiased approach’.²⁹² Moreover, both those laws recognized the right to be heard, as did the new Yugoslav apa, while they did not determine the procedures for rulemaking, unlike the US apa.²⁹³ A further common element was the duty to give reasons. Austrian legislation required the public authorities to deal with all questions of fact and law that had emerged during the procedure,²⁹⁴ as did the new Czechoslovak legislation, which required public authorities to state ‘the reasons’, with specific regard to the ‘facts relevant to the decision’ and the ‘legal rules on whose basis the decision was taken’.²⁹⁵ The Polish Code, too, specified that an administrative decision had to include ‘a factual and legal justification’, with explicit reference to the facts proven and the legal authority for the decision.²⁹⁶ In sum, although the laws of socialist systems differed in several respects, there was still an area of agreement concerning administrative procedure, thus reflecting the principles of the Austrian codification.²⁹⁷

The question that thus arises is why administrative procedure legislation endured, notwithstanding the change of regime. An initial explanation is that the diffusion of Austrian ideas and norms after 1925 had more far-reaching consequences than the adoption of individual rules within all those nations. This legislation was viewed as part of the accepted order of things, so it became socially undesirable to abrogate it, even after the regime change. As a variation on the same theme, it can be supposed that, as the new constitutions were in ‘sharp contrast’ with the political traditions of those countries, keeping administrative procedure legislation was an appeal to tradition.²⁹⁸ Another explanation is the absence of alternatives in the dominant political system. As a matter of fact, the ussr never adopted legislation on administrative procedure, though a project was drawn up. Nor did the Democratic Republic of Germany do so.²⁹⁹ A third explanation focuses on the purposes of administrative procedure legislation in socialist countries, which differed from ‘bourgeois’ legal systems. Whereas in the latter, procedural requirements were regarded as shields against the abuse and misuse of power by public authorities, in the former administrative procedures served to ensure the fulfilment of the goals of the State. This reflects a more general element of diversity. Bourgeois constitutions recognized and protected the rights of the individual, and imposed some duties justified precisely by the safeguarding of such rights. By contrast, socialist constitutions established citizens’ duties with a view to achieving the new society.³⁰⁰ Following this line of reasoning, administrative procedure legislation can be seen as an attempt to regulate society.

These explanations also appear to be helpful with regard to Hungary. After 1956, although its rulers could not import any rules from the legal system of the ussr, where no administrative procedure legislation existed, they could refer to the laws of the other socialist countries, which were varyingly influenced by the Austrian legislation. However, as will be observed in the next section, a different explanation is appealing, one which considers the relationship between administrative procedure and the rights of the individual.

3 Spanish Legislation and Its Diffusion in Latin America

The Spanish law of 1889, the ‘Ley Azcarate’, has already been mentioned in the previous chapter. The fact that it had to be, and was, implemented by executive regulations³⁰¹ does not, however, mean that it was not of fundamental importance, and there are three reasons why this should be so. The ‘Ley Azcarate’ was the first important attempt to state the main principles of fair administrative procedure through general legislation.³⁰² Secondly, though it protected the individual, it sought to promote administrative efficiency. Thirdly, its significance was confirmed by the new law adopted on July 7 17, 1958.³⁰³ Even later legislation, adopted several years after the new Constitution (1978), was regarded as a continuation of the earlier legislation. It is important to address the debate about this Act for a twofold reason. On the one hand, while there is a very considerable literature on constitutional change, there has been less consideration of the dimension of change in administrative law. On the other hand, unlike its predecessor, the Spanish Act of 1958 as relevant and significant well beyond national borders, particularly in Latin America. This is the key to understanding the non-autochthone dimension of administrative law.

The new Act governing administrative procedure, adopted on 17 July 1958 was adopted when Spain had been under Francisco Franco’s authoritarian government for almost twenty years.³⁰⁴ Moreover, the government was building a new social system,³⁰⁵ though it was not based on the same premises as the welfare states that were emerging in the UK and other countries in Western Europe. Consequently, as several commentators observed, the law on administrative procedure was not isolated. Quite the contrary, it was part of an ambitious set of administrative reforms. Among these was the new legal regime for public servants, as well as a renovated legislative framework for administrative justice. It can thus be said that although the Spanish Constitution of 1931 was not replaced, the political and administrative system was indeed reshaped.

There was both continuity and harmony between the new Act and its predecessor in the pursuit of uniformity. According to its first commentators, uniformity was one of the main goals of the 1889 law.³⁰⁶ The new Spanish law, too, had the same goal. Hence, its provisions concerned all public authorities and were regarded as applicable in the absence of sector-specific rules.³⁰⁷ In assessing the impact of the Act, it is therefore important to be aware that it defined a sort of paradigm of administrative procedure, which would serve as guidance. There was continuity, moreover, from the viewpoint of the contents of administrative procedure legislation. Several provisions of the Act sought to achieve the simplification of administrative action, for example by limiting the use of written administrative acts.³⁰⁸ Last but not least, not all procedural infringements implied the annullability of individual acts and measures, but only those vitiated by absolute incompetence or totally prescinded from existing procedural rules.³⁰⁹ The features briefly highlighted might support an essentially functionalist and technocratic interpretation of the Act.

There was, however, another side of the coin. The Act defined the essential principles of fair administrative procedure. Among these principles was the individual’s right to be heard,³¹⁰ granted to all ‘interested’ persons; that is, on the one hand, those who claimed to have either a right or a legitimate interest and, on the other, those ‘directly affected’ by the administrative decision which the public authority was likely to adopt.³¹¹ There was also a duty to give reasons for all administrative acts that fell within certain categories, for example, those that limited subjective rights and those which deviated from the criteria followed in previous cases or from the opinions formulated by advisory bodies.³¹² There were also rules concerning the notification of individual decisions at their addresses. The existence of these procedural constraints can be explained in two ways. While the first focuses on the appeal to tradition, the other one takes external factors into account. Thirteen years after the end of ww ii and the defeat of the Axis alliance, which had supported Franco during the civil war, the authoritarian government sought to obtain external recognition and foreign investment. Laying down a uniform regulation of administrative procedure could be very helpful in this respect.

An adequate awareness of the various purposes of administrative procedure legislation turns out to be helpful for understanding the other feature of the Spanish law of 1958, namely its relationship with administrative procedure legislation in Latin America. Three phases can be observed, the first of which includes the legislative provisions adopted by Argentina (1972), Uruguay (1973), Costa Rica (1978), Venezuela (1982), Colombia (1984) and Honduras (1987). The second wave includes the administrative procedure legislation adopted by Mexico (1994), Brazil (1999), Peru (2001), Bolivia (2002) and Chile (2003). The third wave includes the Dominican Republic (2013), Ecuador and El Salvador (2017). There has been, therefore, a diffusion of general administrative procedure legislation covering practically the whole of South America and part of Central America.³¹³ In this respect, there is a similarity with Europe, but also diversity with regard to other regions of the world, where only a few nations have adopted some kind of administrative procedure legislation.

These laws are characterized by both diversity and commonality. As regards their scope of application, one technique is to generally define administrative procedure as involving the determination of the rights or interests applicable to particular persons, normally after certain steps have been carried out. Another technique is to make the general provisions governing administrative procedure applicable to the functions of central and local authorities, except those that are excluded (normally the functions of public prosecutors and those concerning taxation).³¹⁴ There are other two shared features. On the one hand, all these laws regulate the procedures that give rise to the adoption of an individual administrative act or determination with some also regarding contracts. On the other hand, their principles are fundamentally the same.³¹⁵ Featuring among these principles are, on the one hand, legality, procedural fairness and propriety, and publicity; on the other, effectiveness, efficacity, and celerity.³¹⁶

There are three other elements that bear a certain relationship with the Spanish legislation. First, the Spanish Act of 1958 was characterized not only by its generic nature but also by the idea of the existence of a sort of paradigm of administrative procedure rather than numerous particular procedures.³¹⁷ Several laws adopted by the Latin American nations share this idea. Thus, for example, the Peruvian legislation focuses on ‘general administrative procedure’.³¹⁸

Second, while the Austrian general legislation on procedure employed the concept of party, the Spanish Act used a different one, that of interested persons (‘interesados’) and made a reference not only to rights but also to legitimate interests.³¹⁹ This is a concept that was already used in the Italian legislation of 1889. It conveys the idea that there is a variety of interests recognized by the legal order, some of which (legitimate interests) are protected with less intensity than others (rights). Several legislative provisions in Latin America, sometimes with the further specification that legitimate interests must be both direct and personal use the same wording.³²⁰ The Argentinian and Peruvian laws are strikingly similar, except that the former refers to both legitimate interests and rights in the context of the provision regulating the right to be heard,³²¹ and the latter does so while giving a definition, that of ‘administrado’,³²² which clearly echoes the French concept of ‘administré’. The Venezuelan legislation, too, refers to interested persons.³²³

The Spanish legislation was also influential with regard to the right to be heard. The question as to when a hearing is required as a matter of right is a complex one and the precise meaning of that phrase is not always clear. The Spanish Act made three choices. First, it included the right to be heard within general legislation. Second, it established a relationship between this right and the interests recognized and protected by the legal order, affirming that all interested persons were entitled to present their arguments and evidence on condition that they were relevant. Finally, both arguments and evidence had to be discussed in a hearing (‘audiencia’).³²⁴ This was regarded by many as a model to be followed. In particular, the Argentinian and Peruvian laws were similar to the Spanish model, except that the former included the right to be heard within the broader protection of due process (‘debido proceso adjetivo’) and the latter also referred to the rights and interests of third parties, for instance, in environmental matters.³²⁵

In conclusion, although each Latin American legal system has developed its own administrative procedure legislation, without formal reception of Spanish law, all these legal systems have adopted some of the general concepts and principles embodied in the Spanish Act of 1958, which became an important vehicle for spreading general concepts and principles. Some argue, therefore, that there is a cluster³²⁶ and that the underlying reason can be found both in the existence of common understandings about law and society as a legacy of a shared past and in the technical level of Spanish legislation. Others affirm that the connection is indirect because the Spanish law has been a source of inspiration but has not been imitated except in a very few cases, and there have been borrowings and transplants among Latin American laws.

4 The Scandinavian Standard of Fair Procedure

There is another group of countries where administrative procedure legislation was adopted during the 1960s and later, ie, the Scandinavian area. Similarly to Mitteleuropa, this area was characterized by both commonality and diversity. In the forefront, above all, stood the historical relationships between the various nations of Scandinavia (Denmark, Finland, Iceland, Norway, and Sweden), which was confirmed by the establishment of the Nordic Council in 1952. Given the importance of these elements of commonality between Nordic legal systems, what matters is to establish the nature of possible relationships between their laws. A first possible event is that each legal system developed a different type of legislation. Another is that one system derived its norms from another one, probably with modifications, or, to use a less strong term, was influenced by another one, which would probably have been the first to adopt administrative procedure legislation. A third possible event is that the initial influence was exerted from a further system, outside the area, for example, Austria or the US.

Herlitz rejected the first hypothesis in the late 1960s. He observed that when a ‘rather comprehensive’ administrative procedure legislation was enacted in Norway in 1967, in Sweden an ‘even more comprehensive draft administrative procedure act’ had been presented in 1964, hence the possibility of establishing a ‘common standard of fair procedure’.³²⁷ Such commonality, he added, was reinforced by the existence of shared ideas and principles, as the Norwegian Act established several requirements ‘reminiscent of Swedish law’.³²⁸ This is a helpful starting point. It is, however, necessary to look closer at the legislation adopted by the various nations of Scandinavia, including Sweden (1971), Denmark (1984), Iceland (1993), and Finland (2003). Several illustrations can be made of the common and connecting elements existing between their laws. Three of them will be elaborated on here. Although they are not exhaustive, they are important because each of them involves a policy choice, with broad implications.

This is evident, in particular, as regards the first element; that is, the choice of a general and comprehensive legislation on administrative procedure, in discontinuity with the past.³²⁹ Thus, for example, the scope of application of the Norwegian legislation of 1967 includes all administrative activities, with the exclusion of the functions of the courts of law, even those not of an intrinsically judicial character.³³⁰ Similarly, the Danish legislation applies to ‘all branches of the public administration’ in relation to the cases in which a decision has been or will be made by an administrative authority.³³¹ The legislation adopted by Iceland in 1993 applies to all administrative bodies, both national and local, as far as they adopt decisions impinging on the individual’s rights and obligations.³³² Finally, the more recent legislation, adopted by Finland, covers all ‘administrative matters’ and thus applies to all public authorities.³³³ In all these cases, therefore, the choice of a general and comprehensive legislation was made by considering administration both institutionally and functionally. At first sight, the Swedish apa of 1986 seems to have made a different choice, because it applies not only to ‘handling of matters by the administrative authorities’, but also to what pertains to the courts. However, it does so simply because it applies to administrative activities in their entirety, regardless of the nature of the bodies which perform them.³³⁴

Herlitz’s idea of a ‘common standard of fair procedure’ is confirmed by the particular emphasis that all Scandinavian legislative provisions lay on the impartiality of public officials and the resulting disqualification, which come soon after the delimitation of the scope of application. The starting point is that a public official must be disqualified from preparing an administrative decision or adopting it if certain circumstances occur. Among such circumstances there is, invariably, direct involvement as a party to the case or matter.³³⁵ There is also indirect involvement, based on marriage, family affiliation, and position. There is, lastly, a reference – in almost the same words – to other special circumstances which may weaken the public’s confidence in the impartiality of an official.³³⁶ It might be argued that similar rules exist in other parts of Europe and elsewhere and that they can have a different effect. However, our first concern here is with the existence of the general principle (impartiality) and the mechanism that ensures its observance (disqualification).³³⁷

A common standard emerges, too, with regard to the other fundamental maxim of natural justice, audi alteram partem. Norway and Sweden were the first to affirm it in their general legislation and the latter’s more recent legislation contains a particular provision regulation the information that a private party wants to give orally. Iceland, too, recognized the right to be heard, in connection with the right to information.³³⁸ This shows a more general feature; that is, the importance accorded to openness. Sweden was a precursor in this respect.³³⁹ Finland has adopted similar legislation since 1950. Denmark has done so in its apa, by recognizing the right of access to files and protecting it with particular intensity against the use of provisions on secrecy.³⁴⁰ Likewise, the administrative procedure legislation adopted by Iceland affirms the right to have access to the ‘documentation … bearing on the case’ and specifies that laws on secrecy ‘shall not limit the duty to grant access’ to it.³⁴¹

In conclusion, like Mitteleuropa, the Nordic area is characterized by the existence of a common standard of fair procedure, notwithstanding the fact that judicial review has been differently shaped, because it has been assigned to either generalist or specialized courts, as is respectively the case in Norway and Sweden.³⁴² But, unlike Mitteleuropa, the existence of a common standard is not the product of the spread of ideas and norms from one legal system to the others. It is, rather, the product of countries with a longstanding tradition of open government. Another type of diffusion thus emerges.

5 Types of States and Administrative Procedure Legislation

Two final remarks can be made at this stage. They concern the differentiation between the legal realities examined and the correlation between variables.

The analysis of administrative procedure legislation confirms the existence of a vast area of agreement between legal systems because when a State adopts one type of legislation or another, it establishes at least a few minimum requirements concerning adjudication and sometimes other forms of administrative action. There is diversity at the same time. Obviously, context matters, and in more than one way. In this respect, it can be fruitful to consider Damaška’s essay on public proceedings.³⁴³ He provides an analytical framework within which legal systems that present very different procedural arrangements can be compared.³⁴⁴ To this end, he argues that all procedural systems are shaped by two types of factors or variables: first, whether the structure of the legal order is basically hierarchical or coordinate, ie, characterized by several loci of authority, and, second, whether the goal of justice is viewed as the resolution of conflicts arising from individuals and social groups (what Damaška called the ‘reactive State’) or the implementation of public policies (the ‘activist State’). Though these traits are not to be found in a ‘pure’ sense, they do provide a range of combinations, which is much more flexible and helpful than the traditional distinction between civil law and common law systems.³⁴⁵ They explain, for example, that there is a much greater difference between these and the legal systems of the ussr and China, viewed as a ‘pronounced activist and hierarchical system’ and as the extreme concrete example of this model or type.³⁴⁶ This approach shows that there can be, and there are often, tensions within a single variable or a pair of variables.

In our case, two variables seem to have influenced the evolution of administrative procedure legislation; that is, the type of State and the conception of the rule of law. Damaška’s paradigm of the activist State does much more than promote certain policies, because it strives for a comprehensive vision of the good,³⁴⁷ helping us to understand the emergence of a different vision of administrative procedure. The Austrian codification of administrative procedure contained principles and rules which corresponded to the liberal state. The shift from a reactive State, based on the principles of political liberalism, to the activist State, accounts for the reluctance to accept that any infringement of procedure rules could determine the annulment of an administrative decision if obtained through the infringement of procedural rules.³⁴⁸ There is, thus, a correlation between the advent of the active or social State and the development of the policy implementation type. The socialist legal systems which have retained, in some way, their pre-existing administrative procedure legislation have had to adjust it to the new functional necessities. To a limited extent, a similar development occurred within a legal system at the other end of the political spectrum, that of the US.

This explains the importance of the other variable, concerning conceptions of the rule of law. There is a range of options, which can be included between two extremes.³⁴⁹ At one extreme, there is a ‘thick’ conception of the rule of law, such as that of Austria in 1925. At the other extreme is a ‘thin’ conception of the rule of law, such as that which dominated in Spain under Franco and in socialist systems soon after 1948. Various solutions fall between these extremes, such as those of France and Prussia in the second half of the nineteenth century. In this respect, we may gainfully draw on the retrospective analysis elaborated by a specialist of French administrative law, Auby, with regard to standards of administrative conduct defined by the Conseil d’État between 1850 and 1870. Auby observed that it might be surprising that those standards, and the creative techniques used by the administrative judge, saw the light ‘under a political regime stamped with authoritarianism’, as the French leader of that era, Napoléon iii, had obtained power through a coup d’état.³⁵⁰ Auby’s answer was not, however, limited to France under the Second Empire. He argued that ‘imperial leaders … conscious of the popular reactions that the reduction of political liberties might lead to … wished, as a counterpoise, to accord citizens the satisfaction of having a government respectful of law and free of arbitrariness’, a sort of ‘safety valve’ policy.³⁵¹ In other words, procedural requirements could be viewed as a compensation for the loss of political freedom in France and its absence in Prussia, where the dominant authoritarianism excluded neither procedural safeguards against administrative arbitrariness nor, incidentally, the delivery of social benefits to individuals and groups.

This line of reasoning implies that the necessary condition for ensuring compliance with these procedural safeguards was the existence of courts that enjoyed a certain margin of autonomy from the other branches, the executive in particular. The courts were, in effect, the guarantors – and partly the creators – of those principles, which corresponded to the values shared by those societies. In the absence of this condition or variable,³⁵² which was necessary for a set of procedural principles and rules established by legislation to become effective as a barrier against not only arbitrariness but also maladministration, codes of administrative procedure could have only limited effects. It is highly significant that socialist regimes abolished administrative courts where they existed, notably in Czechoslovakia, Hungary and Poland, and they did so because there was a concern that ‘aggrieved individuals might attack’ administrative actions taken by government officials by seeking judicial review.³⁵³ The fact that Yugoslavia had a more comprehensive and effective system of judicial review of administrative action explains why its legislation of administrative procedure, too, was more effective.³⁵⁴ At one extreme were the German Democratic Republic and the ussr, which had no administrative procedure legislation governing the conduct of public authorities that impinged on the lives of individuals³⁵⁵ and where judges did not seem to be actively involved in their control.³⁵⁶

In this chapter, greater focus on administrative procedure has shown that, in contrast with the autochthonous view of administrative law, some shared standards of conduct for public authorities have emerged within some clusters, such as Mitteleuropa, the Scandinavian area, and the Ibero-american one. The discussion in the next chapter will shift to the interaction between commonality and diversity in today’s administrative procedure. This will be followed by a ‘factual’ analysis concerning legal systems with and without general legislation on administrative procedure.