1 The Diversity of Constitutional Foundations

It is fitting from the outset to look at national constitutions because they ‘constitute’ and limit the powers of government; they are higher law and are justiciable, also playing a symbolic role.³⁵⁷ That is not to say that written constitutions are the only source of principles. Indeed, sometimes there is no actual written document self-qualifying as a constitution, notably in the UK, and when there is one, it is often complemented either by custom or by reference to other sources, such as the principles of 1789 in France. A constitution is nonetheless one of the best starting points. This can help us to understand the ideas and beliefs about public law that shape the framework for administrative procedure, and from this angle, some ways of dealing with administrative functions and powers may be discerned.

First, a constitution may not lay down any provision concerning administrative procedure and content itself with the definition of broad principles. Article 18 of the Austrian Constitution of 1920 (reinstated in 1945) establishes that ‘the entire public administration shall be based on law’, from which the necessity of pre-existing standards of administrative conduct can be deduced. The constitutions of the peoples in the former Yugoslavia adhere to the same vision of administrative action and lay down the same principle, with slight modifications: Article 198 of the Serbian Constitution provides that administrative action and individual acts ‘must be based on the law’; Article 19 of the Croatian Constitution requires that the decisions of all bodies ‘vested with public authority … shall be grounded on law’; Article 120 (2) of the Slovenian Constitution establishes that administrative bodies ‘perform their work … on the basis of laws’. A relationship between these norms may be based, above all, on the historical relationship between the legal systems that were characterized by the diffusion of Austrian ideas and norms after 1925, which had more far-reaching consequences than the adoption of individual rules. It may also reflect the existence of certain shared values, such as respect for the rule of law and fundamental rights, also with a view to joining the EU.

Second, a constitution may either define some general principles of administrative procedure or certain process rights or do so indirectly by empowering political institutions to do so. Interestingly, these techniques have been used by three constitutions which have entered into force after the fall of the authoritarian regimes in the 1970s: those of Greece (1975), Portugal (1976) and Spain (1978). Article 20 of the Greek Constitution guarantees that ‘the right of a person to a prior hearing also applies in any administrative action or measure adopted at the expense of his rights or interests’. This right is shaped in broad terms, and the courts may not only annul administrative measures that are found to be in contrast with it, but also invalidate primary legislation.³⁵⁸

Thirdly, a constitution may give a mandate to parliamentary institutions with a view to adopting general legislation on administrative procedure. This is exemplified by the Spanish Constitution. Its Article 105 establishes that legislation will regulate citizens’ participation in the process of elaboration of administrative provisions, their rights to be heard within administrative procedure and the right to have access to the documentation held by public authorities.³⁵⁹ Though the constitutional provision plainly imposes a duty on the legislator, this may not accomplish it. However, as has been seen earlier, general legislation on administrative procedure existed before the Constitution’s entry into force. Accordingly, the new constitutional provision reinforced existing rights. Likewise, Article 267 (5) of the Portuguese Constitution provides that the discharge of administrative activities ‘shall be the object of a special law’ with a view to ensuring that citizens may participate in the adoption of decisions or deliberations concerning them.

Lastly, especially the constitutions adopted after 1989 reveal the influence of supranational charters of rights. This is the case with the new Hungarian Constitution (of 2011, as amended in 2016). Its Article xxiv (1) practically reproduces the provision of the EU Charter of Fundamental Rights concerning the right to a good administration (‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time’) and specifies that this right shall include the requirement to give reasons ‘as determined by law’.³⁶⁰ A broader influence has been exercised by Article 6 echr, concerning the right to a fair trial, of which there are several equivalents within national constitutions.³⁶¹

The above shows, broadly speaking, that a difference emerges between less recent constitutions and those adopted in the last four or five decades, which devote more attention to the discharge of administrative functions and powers and sometimes require institutions to adopt general legislation on procedures. Not all recent constitutions, however, lay down what could be conceptualized as a general principle of fair administrative procedure. It must be seen, therefore, whether any common trend emerges from national administrative procedure legislation, as well as whether the courts interpret national laws in the light of supranational principles.³⁶² The first task will be accomplished in the rest of this chapter, the other in the following three.

2 The Heterogeneity of Administrative Procedure Legislation

Previous scholarly works have lain emphasis on the goals legislators seek to achieve. It is readily apparent that this is an important viewpoint. Parliaments often seek to promote change by defining priorities and strategies, and administrative procedure legislation can be part of such strategies, sometimes in conjunction with reforms of the civil service or of judicial review.

Different legal systems may, and often do, have different strategies. For example, the German codification of administrative procedure was often portrayed as an attempt to increase administrative efficiency. Quite to the contrary, the adoption of general legislation in Italy was mainly seen as an attempt to protect and promote citizens’ rights vis-à-vis the public authorities. This reflects a more general distinction because procedural provisions may have an instrumental or a non-instrumental rationale.³⁶³ They may have an instrumental rationale in the sense of clarifying the steps that have to be taken in order to achieve the desired purpose. By clarifying how the administrative procedure must be carried out, legislation makes life easier for government officers, practicing lawyers, and citizens.³⁶⁴ It also relieves the legislator from the need to define procedural rules for every sector. The purpose is, thus, to avoid an ‘unworkable government’.³⁶⁵ There can be also a non-instrumental rationale. In the absence of a framework for the exercise of discretionary powers, individuals are left in a Kafkaesque situation,³⁶⁶ which is detrimental to their autonomy and dignity.³⁶⁷

Another dichotomy is between parliamentary legislation and executive or delegated norms. Three decades or so ago, Cassese observed that ‘administrative procedure can be self-regulated by administrative agencies … or determined by judicial review. The source of the regulation is more than important, it is crucial’.³⁶⁸ In the last decades, the balance seems to have favored parliamentary legislation. However, this statement requires twofold qualification. On the one hand, the argument whereby parliamentary legislation circumscribes executive regulation neglects the importance of delegation. The French case shows this as it was the executive branch that defined the rules on the basis of parliamentary authorization, and those rules were drafted by experts who codified the settled case law of the administrative courts.³⁶⁹ Moreover, primary legislation is also used to limit the powers of state or regional authorities, thus leading to centralization. This was the case in countries with different administrative traditions, such as Poland in 1930, or under authoritarian governments, such as Spain in 1958. More recently, the legislation adopted by States, such as Italy and Spain, which entrust regional authorities with legislative powers, requires these to comply with the principles laid down by national legislation, thus leaving a margin of appreciation to the courts in the event of conflict.

This is an interesting debate, part of the more general discussion concerning the advantages and disadvantages of codification, but it should not divert attention from the issue at the heart of this essay, the relationship between commonality and diversity. In this respect, it is important to look at how administrative procedure addresses general principles. This task is not unproblematic. One difficulty encountered in identifying those principles is that sometimes legislation uses the term ‘principle’ as an equivalent of general rule. Another problem is that sometimes what is effectively the same principle may be known by more than one name.

Administrative procedure legislation deals with general principles in more than one way. Three mechanisms can be distinguished: list, definition, and renvoi. There is often an initial provision defining a list of general principles. Both the Swedish apa of 1986 and the Italian legislation adopted few years later define general requirements and principles, respectively. Included between these general standards are legality, efficiency, and economy of administrative action.³⁷⁰ More recent administrative procedure legislation is replete with longer lists, sometimes followed by a definition of each principle. Thus, for example, Section 4 of the Latvian apa includes and defines the following principles: the respect of individual rights, equality, the rule of law, reasonableness, non-arbitrariness, confidence in legality, lawful basis, democracy, proportionality, the priority of laws and procedural equity. The apa of another Baltic state, Lithuania, includes the same principles, sometimes with slight modifications: for example, it refers to the supremacy of law and to efficiency.³⁷¹ Moreover, it lays down the principle of proportionality, which is defined in terms of the necessity and reasonableness of the goals pursued by the administration. Proportionality is increasingly recognized by administrative procedure legislation, though with some variants. For example, the Dutch legislation requires public authorities to prevent the adverse consequences of an order being ‘disproportionate’ in relation to the purposes served by such an order.³⁷² Lastly, there is sometimes a renvoi to principles that are established elsewhere. Thus, Article 1 (1) of the Italian apa contains a renvoi to the principles of EU law, whose scope of application is, therefore, not limited to the implementation of EU law and policies but has a general reach.³⁷³

The above confirms that there are differences between the various legislative frameworks on administrative procedure. While the legislation adopted by Nordic legal systems is fairly reduced, the codes of administrative procedure adopted by the Baltic countries, as well as by Bulgaria and some countries of the Balkans tend to be much longer. For example, that of Latvia spans over one hundred pages and includes almost four-hundred articles. We ought now to broaden our analysis in order to ascertain whether the contents of administrative procedure legislation reveal not only diversity, but also commonality.

3 An Area of Agreement: Administrative Adjudication

Our comparative inquiry has shown, first of all, an area of agreement between legal systems concerning adjudication. This area emerges, on the one hand, from the ways general legislation on administrative procedure circumscribes its ambit or scope of application by way of both exclusions and inclusions. On the other hand, a common concern in administrative law regards the process by which an agency reaches a decision.

Most national legislative provisions exclude the functions that pertain to the other branches of government, namely legislation and judicial adjudication. For example, both the Dutch and the German legislation exclude parliamentary and judicial bodies.³⁷⁴ It is often the case, moreover, that national legislative provisions exclude public prosecutors. Inclusions are of even greater relevance and significance. The baseline in each national legislation is the necessity to ensure that it applies to administrative authorities, though more than one legal technique is adopted for delimiting the scope of application. Thus, for instance, when the Dutch and the German legislative provisions give a definition of ‘administrative authority’, they do not refer simply to the existence of an authority or body but specify that it must have been ‘established under public law’.³⁷⁵ Likewise, the Greek legislation extends its application, in addition to the State and local authorities, to ‘other legal entities of public law’, and the Finnish one applies to central and local authorities as well as ‘institutions governed by public law’.³⁷⁶ A similar technique is used with regard to administration in the functional sense. When giving the definition of an ‘order’, the Dutch general legislation clarifies that it is a ‘ruling of an administrative authority constituted under public law’ and that it ‘is not of a general nature’. Similarly, the German apa defines an administrative act with regard to the exercise of sovereign powers in the sphere of public law.³⁷⁷ Thus, in line with a traditional school of thought in public law, the exercise of power by public authorities is viewed from the angle of the individual administrative act or determination.

All these legislative provisions are based on the traditional element of administrative law; that is, the existence of a public administration or authority.³⁷⁸ Others establish that administrative procedure legislation applies to private bodies when they are vested with public authority³⁷⁹ or carry out activities that are mainly funded by public finances.³⁸⁰ A functional conception of administration thus emerges. Such a functional conception is coherent with EU law, where there is a consolidated concept of a ‘body governed by public law’, notably in the directives concerning public procurements.³⁸¹ While the terms ‘public law’ and ‘private law’ may be used either descriptively or prescriptively, in this case the latter form prevails. The underlying idea is that an administrative authority discharges functions and powers under public law, which need to be subject to special burdens or requirements, including the duties of legality, fairness and rationality on the part of decision-makers. The underlying assumption is that those tasks and duties are different from those that characterize private bodies tout court. In the last analysis, all these mechanisms serve to individuate the boundaries for applying administrative procedure legislation to one class of regulated action; that is, adjudication. If a case fits within that class or category, all of the legislative provisions governing adjudication regulate that procedure. A common concern, then, is the process by which public authorities and bodies reach a decision. What must be seen is how this process is shaped.

A first requirement concerns compliance with the pre-established administrative procedure. This requirement is very clearly set out in Spanish legislation, as it rests on consolidated tradition. The Spanish norm, as defined by Article 53 (1) of the law adopted in 1992, provides that administrative acts, whether they are adopted upon request of the interested person or ex officio, will be adopted on the basis of the ‘established procedure’. Similarly, Section 3 (10) of the Dutch general law on administrative procedure requires the procedure for the preparations of orders to be followed either if legislation so provides or if an order of the authority does so. A similar requirement lies at the basis of every type of administrative procedure legislation, whether it provides a uniform paradigm of procedure or more than one. It is precisely for this reason that administrative procedure legislation invariably gives autonomous legal relevance to the initiative, or first step, whether it is taken ex officio or by the interested person(s) and requires public authorities to render the final decision on the basis of the evidence they have collected. It is within this area of commonality that variants can be better appreciated. For example, the German Verwaltungsverfahrengesetz is very clear in requiring the authority to determine the facts of the case, as well as in specifying that it is not bound by the parties’ submissions to admit evidence, while the Italian legislation requires the authority to take the evidence and arguments brought by the parties into due account, provided that they pertain to the case. The Croatian law is similar to that of Germany, except that it requires the authority to determine the ‘facts and circumstances which are essential’ for the decision, while the Dutch law refers to the ‘relevant facts and the interests’, which must be gathered and weighed.

4 The Closest Things to Invariants: Hearings

Two other requirements will now be considered, namely, the right to be heard and the duty to give reasons. Both have been affirmed by the European Court of Human Rights in its settled case law concerning Article 6 echr.³⁸² Moreover, both are defined by Article 41 (1) of the EU Charter of Fundamental Rights, according to which the right to a good administration includes, among other things, the ‘right of every person to be heard, before any individual measure which would affect him or her adversely is taken’, as well as the ‘obligation of the administration to give reasons for its decisions’. However, as will be seen, while the former provision defines what may be regarded as a minimum requirement, the latter delineates a requirement that goes beyond the common denominator of national laws.

Many national laws, more or less literally, reproduce the maxim audi alteram partem. The German law (‘before an administrative act affecting the right of a participant may be executed, the latter must be given the opportunity of commenting on the facts relevant to the decision’) is similar to the Charter, except that it does not apply only to the acts and measures that might give rise to effects unfavorable either to their addressees or to other persons. However, it provides for some exceptions. Other national provisions express the same concern in similar, if not the same, words. Thus, for example, Article 9 of the Serbian apa provides that ‘before adopting a decision, the parties must be allowed to make a statement concerning the facts and circumstances of relevance for decision-making’, Article 10 of the Bosnian aoa establishes that ‘prior to taking a decision, a party must be given an opportunity to provide his position on all the facts and circumstances important for taking a decision’, and Article 6 (1) of the Greek Administrative Procedure Code requires administrative authorities to invite interested parties to express their opinions, but with regard to all issues, not only those of fact. The Dutch legislation (section 3.13) does not require the hearing, but it does ensure that the parties may state their views on the draft administrative decision or determination. The Swedish legislation (revised in 2017) conceives the right to be heard as the foundation for a number of process rights, such as access to documents and legal assistance.³⁸³ The fact that the requirement established for the right to be heard is higher than the minimum requirement established by the EU Charter may also be appreciated with respect to other norms. French legislation provides an enlightening example, because the hearing requirement applies not only to the issuance of individual decisions that must be reasoned because they either adversely affect the individual’s interest or derogate from general rules, but also to decisions that concern an individual.³⁸⁴ The above shows that a common standard exists, though sometimes it is expressly regarded as a principle, for instance in the Bosnian law just mentioned, while in other cases – including Italy – legislation does not set out a general concept, but requires that some types of process rights be respected, including the right to notification, to have access to all the documents held by the public authority entrusted with the power to decide, and to submit opinions and evidence.³⁸⁵

There is nonetheless a variety of ways in which the right to be heard manifests itself. One is a general statement about the duty of the public authorities to deliver notice about the commencement of a procedure. The other is a – varyingly detailed – description of the various steps to be followed. Between these two methods, again, lies a broad spectrum. Often, administrative procedure legislation requires public authorities to deliver notice not only to the individuals to whom the final act or measure will apply, but also to those who are potentially affected by it in an adverse manner. Increasingly often, procedural norms specify that notice must be given in a timely manner. Some take account of other factors in deciding on the notice that must be given, including the type of act being issued and the number of people who are affected by it. Another element of differentiation between national procedural rules concerns the nature of the hearing. Many norms, especially those of Central and Eastern European countries, are based on the assumption that the hearing will normally be oral.³⁸⁶ Others so provide either if private parties request a hearing,³⁸⁷ or if a written procedure would cause inconvenience to them, as in the Scandinavian countries.³⁸⁸ However, there is no general rule that this must be so. There can, for example, be a general requirement that an oral hearing take place unless the law provides otherwise, due to an urgency, for example. In other cases, included the Italian legislation, the general norm is constructed so as to dispense with an oral hearing, which is required by sector-specific rules, for example for disciplinary procedures. In brief, as observed by Schlesinger in the field of private law, it is evident that ‘the areas of agreement and disagreement are interlaced, often in subtle ways, and that it is quite impossible to accurately formulate an area of agreement without staking out its limits and thus demarcating an actual or potential area of disagreement’.³⁸⁹

Nonetheless, the structure of these national norms is the same. There are two related, but distinct, aspects. On the one hand, legislation defines and regulates a broad class or category of agency adjudication, ie, single-case decisions, with some exceptions established by law. On the other hand, this class or category of adjudication is characterized by a common requirement, which concerns what the public authority has to do before it makes its final decision. Such a class or category of administrative adjudication is legally required to be determined by an agency only after an opportunity for a hearing, in the absence of which the whole agency action would not only appear less scrupulous than necessary but would be irremediably unfair. It is in this sense and within these limits that the right to be heard in adjudication can be considered one of the closest things to an invariant in administrative action.

5 The Closest Things to Invariants: Giving Reasons

In the context of administrative adjudication, the other closest thing to an invariant is the duty to give reasons. In this respect, Article 190 of the Treaty of Rome laid down a requirement that attracted the interest of American scholars, including Mashaw and Shapiro,³⁹⁰ largely due to the fact that the requirement was shaped in very broad terms. Its scope of application included not only decisions adversely affecting the individual’s rights or interests, as was then the case, for example, within the French and Italian administrative laws. Moreover, that requirement applied not only to individual decisions, but also to regulations and directives; that is, to acts laying down rules. The requirement established by Article 41 of the EU Charter is narrower in scope, as it refers to decisions alone. Even in this more limited sense, it remains to be seen whether this requirement can be regarded as a common denominator. Two aspects will be considered in turn: whether there is a general duty to give reasons, and the stringency of the duty.

National provisions increasingly require public authorities to state the reasons for their administrative decisions. However, this in itself is not sufficient to say that there is always a general duty to give reasons, though there is evidence that most national laws are moving in that direction. To provide a more specific idea of the scope and content of national provisions, it is helpful to compare three of them, which can be regarded as representative of a more general pattern. The first is the French legislative provision, which does not contain a general duty to give reasons. In fact, reasons must be provided in certain circumstances, including whenever a decision either adversely affects the individual’s freedoms and rights (or, anyway, constitutes a police measure) or deviates from general rules. In brief, reasons are not always due, but only when liberty or equality are at stake. The historical origins of the norm can be found in the case law of the French administrative judge and diverge from the norm that has constantly been applied for the judiciary, as some statement of reasons was required within judgments rendered by the courts.³⁹¹ The underlying assumption is that the administration should not be overburdened by a general duty. Whatever its intrinsic soundness, this solution is by no means isolated. Quite the contrary, it is shared by the general laws adopted by Austria (1991) and Spain (1992).³⁹² Moreover, and interestingly, there is no general duty for public authorities to provide reasons in common law in the UK, though some sector-specific norms require public authorities to give their reasons for a decision that adversely affects the rights or interests of the individual.³⁹³

The opposite choice can be exemplified for its clarity and conciseness by the Dutch general legislation. Its Section 4 (16) provides that ‘a decision shall be based on proper reason’. Leaving aside for the moment the propriety of the reasons, it should be observed that this norm applies to every decision, meaning ‘an order not of general nature’ (as specified by Section 1 (3) (2)). Interestingly, in the legal literature, there is no indication that this solution has impaired the exercise of discretion. Whatever its merits, the same solution has been adopted by administrative procedure legislation in various parts of Europe, Greece, Italy, and numerous countries in Central and Eastern Europe.³⁹⁴

Lastly, a somewhat intermediate position can be found where there is a general requirement, albeit subject to exceptions. This can be exemplified by Germany, where Article 39 of the apa requires public authorities to state the grounds for any written administrative act, but there are six exceptions, including when the act grants an application to someone and does not infringe upon the right of another person, as well as when the authority issues ‘identical administrative acts in considerable numbers’. The underlying rationale is different, because in the former case the idea is that there is no adverse effect for anyone, an idea that is shared also by other national legal systems such as Denmark and Sweden,³⁹⁵ while in the latter there is a balancing between the individual’s interest and that of not overburdening the administration.

The other relevant aspect is the stringency of the duty to give reasons. The stringency of the duty will, of course, depend to the same extent upon the language of the particular national legislation and the broader context, ranging from a purely procedural requirement to give reasons to a much more structured one. The German norm is, again, exemplificative of a basic and clear requirement. Under Article 39, the statement of grounds ‘must contain the chief material and legal grounds’ which led the authority to take its decision. Similar norms exist, for example, in Italy and Spain.³⁹⁶ What characterizes these norms is the existence of a giving-reasons requirement that is conceived as a purely procedural requirement, in the sense that the public authority is required to give reasons, so as to enable the individual to understand why the authority has acted in a certain manner and to assess whether the decision can be challenged. But there is no further indication as to the scope or quality of the reasons. The Greek Code goes beyond this as its Article 17 does not simply require a ‘justification’ for every individual administrative act, but establishes that such justification should be ‘clear, specific, sufficient and derived from the particulars of the file’. An important distinction, underlined by Shapiro,³⁹⁷ thus emerges between a procedural conception of the requirement to give reasons and a substantive one. By virtue of the latter, a generic statement of reasons would not meet the legislative requirement. The Dutch apa goes one step further from the viewpoint of both negative and positive circumstances. According to Section 4 (17) (3), if the reasons supporting a decision have not been stated on the grounds of celerity, whenever an interested party so requests, they ‘shall be notified as quickly as possible’. There is also, as observed earlier, a requirement that any decision be based on ‘proper reasons’. This is obviously a more demanding requirement. By requiring the public authority to provide proper reasons, the procedural requirement is converted into a substantive one, in the sense that if the decision-maker chooses to furnish only a concise or stereotyped statement of reasons, then the justification for its action is exposed to risk. The court could assume that no adequate or proper justification has been provided and, accordingly, reach the conclusion that the contested decision is illegal.³⁹⁸ Such a conclusion would not be in contrast with the discretionary nature of the exercised powers, because it is a corollary of the discretion conferred upon the public authority that the latter has the duty to set out the reasons in sufficient detail to allow the affected parties and the courts to understand the choices that it has made.³⁹⁹ Last but not least, a legislative provision that refers to the elements of fact and law that emerge from the preliminary fact-finding activities carried out by the public authority goes beyond the mere duty to provide reasons because it creates a sort of requirement for dialogue,⁴⁰⁰ in the sense that the public authority must show that the arguments and evidence brought by private parties have been taken into due account.

The remarks thus made with regard to the scope of the duty to give reasons and its stringency should now be considered together. What follows from them is that the requirement established by Article 41 of the EU Charter can in part be considered indicative of a common standard. Public authorities are required to set out the reasons either for a decision that adversely affects the rights or interests of the individual or for one that deviates from existing rules or criteria. More generally, an analysis of administrative procedure legislation shows that in more than one respect there is a spectacular approximation or assimilation between national administrative laws.⁴⁰¹

6 Diversity: Rulemaking

The individual’s interests, as well as those of social groups (families, associations, firms) may be affected not only through single-case decisions (that is, individual adjudication), but also through the application of rules. In the past, this aspect of administrative action was neglected, because the idea that dominated legal thinking was that rules were adopted by political bodies.⁴⁰² But, with the growth of government, administrative agencies have increasingly defined rules. Sometimes, these rules aim to pre-determine the exercise of discretion in individual cases, but nevertheless strongly influence their outcome. In other circumstances, these rules would lead directly to a certain result, for example when public authorities define prices and tariffs. In both guises, the use of administrative rulemaking expanded dramatically, among other things, to protect health, the environment, and safety. Hence the increasing demand for public participation in rulemaking procedures.

Before examining the solutions found by European legal systems, it may be helpful to consider the options at our disposal when thinking about rulemaking. All legal systems must make two choices. First, they have to decide on the conceptual foundation for including rulemaking within their general legislation on administrative procedure. If they decide to do so, then the other choice which must be made is how such legislation can regulate rulemaking by agencies. Of course, different legal systems will devise differing solutions, and what is of interest is not only the final choice, but also the reasons underlying it.

With regard to the first option, in Europe, very few States have defined rules on administrative rulemaking within their general legislation. This is the case with Bulgaria, Norway, and Spain. For example, the Norwegian procedural legislation applies to administrative activities in the broad sense.⁴⁰³ It thus regulates every action taken by a public authority which ‘generally or specifically determines the rights or duties’, including both individual decisions and regulations, the former relating to ‘one or more specified persons’ and the latter to an ‘indefinite number or an indeterminate group of persons’.⁴⁰⁴ Similarly, Bulgarian legislation makes a distinction between various types of individual administrative acts on the one hand and ‘general administrative acts’ and regulations on the other.⁴⁰⁵ In these few instances there is an explicitly established duty to give reasons with regard to rulemaking.⁴⁰⁶

The opposite choice has been made by most European legal systems. The German case is enlightening in both its clarity and conceptual foundation. Its general legislation defines an administrative procedure as the ‘activity of authorities […] directed to the […] preparation and adoption of an administrative act or to the conclusion of an administrative agreement under public law’.⁴⁰⁷ The conceptual foundation is still Mayer’ definition of the administrative act as the one that declares what the is law for a particular person.⁴⁰⁸ The only deviation from Mayer’s paradigm of the administrative act is the provision of an alternative option, in the form of an agreement under public law. Every form of administrative action that exceeds the individual dimension is left out of this definition. Similar choices are made by other legal systems, such as that of Slovenia, where the general provisions on administrative procedure do not take rulemaking into account.⁴⁰⁹

The other choice to be made regards the ways in which administrative rulemaking is governed by general legislation. In this respect, we find a limited area of agreement between legal systems. Thus, for example, in Norway, there is a requirement that the agency ensure ‘that the case is clarified as possible before an administrative decision is made’, the agency is entrusted with the power to define the procedure for notice and comment, and there is a requirement that every regulation be published.⁴¹⁰ In Bulgaria, there is a variety of forms of participation of interested persons and organizations. These include written proposals and objections and participation in advisory bodies and hearings.⁴¹¹ Interestingly, there is a legislative provision allowing the application of the rules governing adjudication for the matters that are ‘unsettled’.⁴¹²

The Italian legislation on administrative procedure makes a different choice, because it establishes that the provisions regarding citizens’ participation ‘shall not apply’ to the action directed to the adoption of regulations, general administrative acts, and plans, which ‘shall continue to be governed by the specific rules regulating their framing.⁴¹³ Thus, ironically, the only general norm is that there are no general norms. The underlying reason is, however, one of comparative interest. The reason is that, while public participation in the rulemaking process is desirable and has been so recognized by several sector-specific provisions (typically with regard to regulatory agencies in liberalized public utilities and urban planning), a general requirement in respect to popular participation seems highly undesirable. The making of administrative rules and regulations, so the argument goes, involves very different economic, legal and social circumstances. Accordingly, a general requirement concerning citizens’ participation may be either over-or under-inclusive and thus may either over-burden the administration or be insufficient. It seems much more advisable to tailor it on the basis of particular circumstances.

As a final remark, the European legal area, considered as a whole, differs from the US experience, where the federal apa requires each agency to adopt its procedural rules, in addition to a general requirement that all rulemaking shall be accompanied by notice and comment and, finally, that there be proper publicity for administrative rules that are likely to affect the public.⁴¹⁴ Similar requirements have been embodied in the Model State apa. As a result, in the US, general legislation on administrative procedure is characterized by a set of requirements concerning rulemaking, while in Europe it is the exception rather than the rule. This may be seen as indicating that, if a common core of European administrative laws exists, it is limited to adjudication, with the exclusion of rulemaking. This working hypothesis must, however, be further tested. It is now time to consider, through a factual analysis, whether national solutions are similar or different in the daily business of government.