1 Variety of Administrative Rules

In the past, it was often taken for granted that a fundamental division existed – and had to be maintained – between rules and decisions as a consequence of separation of powers. Rules had to be both general and abstract, in the sense of defining standards of conduct for a pre-defined class or category of persons and legal relationships. They had to be adopted by parliamentary bodies, which at the beginning of the twentieth century were regarded as being broadly representative of all parts of society, though beyond the term ‘representative democracy’ there were very different realities.⁴⁵⁷ Accordingly, executive rulemaking had to be authorized through delegation. On the contrary, an individual decision affected the individual or a pre-defined class or category of individuals or legal entities. It had, therefore, to be adopted by the executive.

In Europe, the importance of administrative rules was confirmed in the late 1950’s by the Treaty of Rome with a view to legal harmonization.⁴⁶⁰ Its norms are now reproduced in Article 114 (1) tfue by virtue of which EU institutions may adopt ‘the measures for the approximation of the provisions laid down by law, regulation or administrative action in member States’ in relation to the establishment and functioning of the internal market. What matters, thus, is not the legal status of the provisions adopted by national authorities but whether such provisions or rules affect the European single market.

Administrative rules are highly differentiated. There are interpretative rules (which explain the contents and effects of legislative and regulatory provisions), policy statements, procedural rules, and others governing the organization of an agency such as codes of practice and guidelines for enforcement officers. Moreover, whereas in several legal systems – such as Germany and Italy – public authorities may adopt regulations only if authorized to do so, this is not the case for administrative rules. Sometimes these rules are adopted on the basis of enabling legislative provisions. Other rules are adopted by agencies themselves as an alternative to achieving policy goals through individualized adjudication, which can be controversial.⁴⁶¹ Rules will have sometimes have to be applied on a case by case basis, but they will often nevertheless ‘be determinative of the result and will strongly influence the outcome’.⁴⁶² Other times, they will be directly binding, like regulations.⁴⁶³ The question that thus arises is how administrative rules can be discerned. Various elements appear to be of legal relevance in this context, including the general applicability of a precept and its future effects. A precept is regarded as being general when it applies to a pre-defined class of persons or legal entities, though they are still relatively few. It must also be prospective, in the sense that it applies not only to legal relationships or situations existing at the time of the enactment but also to those that come into existence later.⁴⁶⁴

From the practical point of view, there are various advantages associated with the increase of administrative rules but also some drawbacks. Rulemaking serves to organize the work of government officers, thus promoting efficiency. It also provides decision-makers with the possibility to proceed according to a clear statement of the policy regarding the intended course of action⁴⁶⁵ as opposed to the exercise of ad hoc discretion. However, the procedure to be followed may be difficult and time-consuming. On the other hand, opening procedures may serve to ensure their legitimacy, which is particularly clear in the field of environmental protection. There are national legal systems, such as France, where legislation has been amended to provide for greater transparency and public input.⁴⁶⁶ Moreover, the majority of European legal systems have acceded to the Aarhus Convention of 1998.⁴⁶⁷ Lastly, rules provide for a clear warning of the consequences to be imposed on individuals, social groups and legal entities, though this raises the question of their publication. These quick remarks may give an idea of some of the issues raised by administrative rulemaking. Three of them will be discussed in more detail in the following sections.

2 Standardless Discretion?

Some words should be said to explain the choice of the first issue, which is of particular importance from the perspective of the common core. Until some decades ago, in Europe there were two opposite visions of the relationship between rules and discretion. One was reflected in the no-fettering rule, while the other required public authorities to rigorously limit and structure their discretionary powers.

The first position prevailed in Britain and other Westminster-type democracies. It was clearly expressed by the House of Lords in the well-known British Oxygen case.⁴⁶⁸ What was established was that a public body may not unlawfully fetter a discretionary power granted by statute. The underlying basis was, ultimately, the doctrine of parliamentary sovereignty. Thus, even if Parliament had granted a public authority, such as a government minister or an agency, the discretion to determine the best course of action in individual cases, the holder of such discretion was not authorized to transform it into a duty to exercise it in a particular way. Fettering administrative discretion would amount, in Wade’s words, to ultra vires.⁴⁶⁹ His analysis was regarded as exemplary by Giannini in his preface to the Italian translation of Wade’s textbook. Giannini took a positive view of this doctrine precisely because it left public administrations considerable leeway.⁴⁷⁰

Conversely, in both Germany and Italy, administrative courts held that if legislation did not define standards for exercising discretion in individual cases, the public authority was required to predetermine the canons of conduct.⁴⁷¹ Otherwise, there was the risk that discretion could be used very differently from case to case and thus degrade into arbitrariness. The phrase coined by German lawyers, ‘Selbsbindung der Verwaltung’, expresses the idea that the administrative authority must, first, adopt a binding rule governing its action and, second, respect it. The bindingness of the rules adopted by public authorities was justified, also in other European legal cultures, by the principles of coherence and legal certainty expressed in the maxim patere legem tuam quam ipse fecisti (that is, you are bound by your own rule).⁴⁷²

On the other side of the Atlantic, in his essay on discretionary justice, Davis’ dissented from Dicey. He also dissented from ‘European writers [considering] what they call ‘the principle of legality’ to mean that discretion must be guided by rules’.⁴⁷³ Empirically, he found that both police and border control officers, as well as prosecutors, exercised very broad discretionary powers and argued that, in order to avoid arbitrariness, they had to limit their discretion, structure its exercise, and thus make it accountable.⁴⁷⁴ This was an important step beyond the simplistic ideals that dominated the liberal period, according to which discretion had to be eliminated, and opened up the field for new thinking about the relationship between rules and discretion.

For a better understanding of the real terms of the question of interest here, it is important to be aware of the deficiencies of the alleged contrast between the administrative laws of Continental Europe and the British scenario. Some of the shortcomings of the traditional model have already been touched on in the discussion of fact and theory in Chapter 1. Two further difficulties can be identified at the prescriptive and descriptive levels.

Prescriptively, Dicey was a liberal and was thus concerned with what was later called administrative despotism,⁴⁷⁵ while Giannini was a public lawyer who developed a functionalist approach to public law in the interwar period and beyond. They opined that, with the widening of the sphere of government, the use of discretionary powers was simply necessary for the efficient conduct of business and, ultimately, for the promotion of social change. Several consequences followed on from this. Social interests, rather than legal rules, lay at the heart of the legal order, and the courts of law were deemed ill-equipped to control the exercise of discretion, particularly with regard to the issues arising under social legislation. The no-fettering doctrine thus appeared to him as one the most striking differences between the English legal system and what he called ‘the continental system’.⁴⁷⁶ In the former, if a public authority relinquishes exercise of statutory discretionary power, its conduct is incompatible with the law. Referring to the no-fettering doctrine was, in sum, a way of expressing greater faith in administrative bodies than in courts. However, the more legislation was characterized by broad, open-textured provisions, the more it became necessary to discipline the exercise of discretion, as will become clear from the discussion to follow.

Descriptively, things differ from the way in which they were portrayed. In the UK, the fact that an agency does not have express power to adopt standards of administrative conduct does not, per se, imply that they are invalid if it adopts them. Invalidity would be sanctioned by the courts when a standard works as an inflexible or invariable rule, in the sense that it prescribes the conduct of administrative officers rather than assisting them in their exercise of discretionary power. In other words, exercising such power must not be determined automatically by a rigid choice made in advance. This is the context in which the no-fettering doctrine has been seen in relation to public law values of fairness and transparency. Thus, for example, in Bushell, the House of Lords held that ministers, in exercising their discretion, ‘as in exercising any other administrative function …, owe a constitutional duty to perform fairly and honestly’.⁴⁷⁷ It is in the light of these values that, according to Daly’s comparative analysis, the no-fettering doctrine should be viewed as a principle, as opposed to a rule, operating as a means of judicial control ‘over the degree of structuring of discretion’ appropriate to particular contexts.⁴⁷⁸ Within the legal systems of Continental Europe, too, things are more complex than Giannini described them. In France, the traditional dichotomy between discretionary power and bound administrative action (‘administration discretionnaire ou liée’) has been enriched by the definition of a third type of action, called ‘ligotée’, tied in such a way as to leave some measure of reasonable discretion.⁴⁷⁹ Similarly, Italian administrative courts have required decision-makers to discipline the exercise of their discretion through guidelines, in the absence of which executive action may be prone to excess of power, as distinct from illegality.

While the above contributes to clarifying the substantive side of the question concerning the admissibility of rules aiming to structure the exercise of discretion, their effects can only be discerned by looking at the relevant legislative provisions granting a public authority discretionary power, in addition to observing governmental practice and judicial interpretation. There is, moreover, a procedural side concerning the ways a public authority may make rules. Various mechanisms can be used to control it, including parliamentary scrutiny, consultation, and judicial review.

Our hypothetical case regards the rules regulating the disbursement of public money. We assume that parliamentary legislation enables public money to be granted to toy manufacturers that promote a particular social goal: greater environmental awareness in children under the age of ten. According to this legislation, the Department of the Environment can award grants to the producers of the new games. The Department decides to establish some rules of practice, including one whereby it would not award grants for any game costing more than a certain amount of money. When a producer applies for a grant for a new game, its application is rejected on the grounds that the sale price of the game exceeds the amount of money established in advance. The producer thus brings a claim before the court, claiming that, before defining its rules of practice or standards, the Department should have consulted the stakeholders, instead of acting unilaterally. The public authority objects that there is no legislative provision requiring it to consult stakeholders before adopting any rule or policy. What is at issue is, firstly, whether the court would give any weight to the claim based on the lack of consultation with stakeholders and, secondly, whether, this being the case, it would either strike down the disputed rejection of tw’s application or require the public authority to re-open the consultation phase or stage.

The distinction just made between the two limbs of our hypothetical case is helpful from a comparative perspective. As far as the first limb is concerned, all the legal systems examined recognized the existence of legal rules that do not directly affect the rights and interests of individuals, but confine and structure the discretionary powers granted to public authorities. They admit the adoption of rules of this type and distinguish. One thing is whether administrative rules are inflexible, insofar as they leave no measure of discretion to decision-makers, for instance by indicating a mandatory process rather than a recommended but optional one. Another thing is whether rules are conditional or flexible, for example by allowing officials to do something if a certain circumstance is fulfilled, which comes close to the idea of how discretion should be exercised ‘normally’ but not invariably. Moreover, the importance of consultation is recognized.⁴⁸⁰ There are, obviously, variants concerning, for example, the existence of a general duty to predetermine the standards of administrative conduct (which in Italy has been codified by administrative procedure legislation but does not exist elsewhere),⁴⁸¹ a duty to consult stakeholders before adopting rules aiming at interpreting or implementing legislation, and the binding nature of implementing rules. It is for the courts, therefore, to define the possible role of consultation.⁴⁸²

There are three relevant aspects for this purpose: legislative intent, precedents, and general principles. Courts look at the language of legislative provisions in order to see if it there is an explicit or implicit support for consultation. In the former case, the absence of consultation will be regarded as a procedural infringement. In the latter, it will be regarded as a choice that requires appropriate justification. The courts will also consider past government practice. Thus, for example, if in other cases the same public authority has consulted stakeholders before making rules, this would be a prima facie argument in favor of consultation. Lastly, the courts will apply the general principles governing the exercise of discretionary decision-making. Their willingness to invalidate an administrative rule of the type under examination here on the grounds of, for example, accuracy or unreasonableness may depend on whether the producer can give evidence that, had the Department consulted stakeholders, it would have been manifest that the amount of money it intended to establish was incompatible with the legislative intent. This incompatibility may depend, for instance, on the fact that the established price is excessively low or that it excludes some toys for which a considerable effort has been made to develop environmental awareness. There is still another ground on which the producer’s claim might have good chances of success; that is, the argument that an administration consistent with the principles of good governance must hear what the individual has to say about the relevant facts, though a general obligation to consult with stakeholders prior to the adoption of administrative rules exists in some legal systems, but not in others (including Switzerland). It is in this sense and within these limits that an area of agreement exists and can be said to be significant.

Conversely, as regards the other limb of our hypothetical case, namely judicial reaction, there is disagreement between the legal systems included in our comparison. In some of them, notably in the UK, unless there is something in the wording of the statute that indicates Parliament’s intent to grant the public authority the authority to issue guidelines or rules, the courts will most probably quash the challenged rule. The reason is, that the rule is used not as a flexible but as a mandatory tool and, consequently, leaves no margin of discretion to government officials; in other words, it is entirely binding on the decision-makers.⁴⁸³ Conversely, in other legal systems such as those of Italy and Serbia, the judge will probably be satisfied with ascertaining that a standard of administrative conduct has been pre-determined and has been respected in the particular case. Though the latter feature does not focus on the rule itself, but on its application, it must not be neglected because it evokes the existence of an enforceable legitimate expectation. In still other legal systems, a court will deem that, if there is a procedural weakness, it can be remedied and will require the public authority to carry out a consultation before the end of the judicial process.

The existence of a persisting and significant area of disagreement between the legal systems examined should not, however, prevent adequate understanding of the development of the law across time. It is clear that the control of discretion has not remained static. It has changed, and it has done so in a way that escapes the rigid distinction between a no-fettering (inflexible) rule and the duty to pre-determine criteria and standards in the absence of which individual administrative acts are invalid.

3 Consultation before Policy Change

Given the importance of the administrative choices that affect the public at large, the analysis of another case has been deemed advisable. It concerns consulting the public before a decisive policy change. The previous discussion is also relevant here, as is general legislation on administrative procedure. There are, however, some distinctive traits, which will be discussed shortly after setting out the hypothetical case.

We imagine that under national legislation local authorities are required to provide a comprehensive library service. The term ‘comprehensive service’ is not defined in the legislation, however. It is the responsibility of local authorities to determine how to deliver public library services in the light of local needs and available funding. But there is a legislative duty to consult users, and the Ministry for culture and media can order an inquiry when there is a concern that a local authority is failing to fulfil its duties. When a local authority announces on its website that it is going to close three of its five public libraries and drastically reduce the opening hours of the remaining two libraries, a consumer association challenges this change of policy and argues that it ought to be consulted before a final decision is taken. The local authority simply asserts that its decision is due to financial difficulties and adopts the decision. The consumer association then brings a case before a court on the grounds that: a) the duty to consult users should be taken very seriously when a decision is likely to deprive them of existing benefits; b) consultation should thus occur when proposals are at a formative stage rather than on the point of being adopted; c) the local authority should consider more than one option, weighing up their advantages and disadvantages, also in the light of the users’ observations. As in the previous case, we seek to understand whether the court would endorse any of these arguments and, if so, whether it would be willing to quash the challenged decision.

At least two distinctive traits between this case and the previous one deserve a mention. The first is that in this case the focus is on determining a policy, rather than on the rules. Secondly, whereas in the previous case it was the legislator who made the main decisions, in this one, legislation allows the local authority to take into account a wide variety of factors in determining the public interest, including maintaining certain standards in the delivery of public services and promoting the interests of users, as well as maintaining an appropriate balance between the various types of expenditure and thus seeking to reduce costs. The function that the local authority must discharge is financially and socially complex. Financially, closing one or more public libraries might be justified, for example, because it may produce economies of scale, though in our hypothetical case there is no such justification. Socially, closing libraries inevitably provokes discontent among actual and potential users. Where the range of relevant factors is broader, then the problem of administrative discretion becomes less manageable. However, all legal systems have to decide on the mechanisms for exercising some degree of public control over them, including consultation and judicial review. It is not, therefore, only substantive aspects that matter, but also procedural ones.

It is clear from our comparative analysis that legal systems differ as to how services must be performed, as well as whether interested individuals and groups should be given an opportunity to submit statements and produce evidence supporting or opposing the proposed policy change.⁴⁸⁴ Several consequences flow from this difference, including whether the public authority should make public a concise general statement about the purposes of its action. There is, first of all, divergence concerning the existence of national legislative provisions governing the organization of public libraries. Lithuania has legislation of this type, while other nations do not. Secondly, there are differences in procedural requirements. While our hypothetical case supposes that a legislative duty to consult users exists and then goes on to ask what the consequences of its infringement would be, in reality such a duty does not exist outside but a few legal systems. This is not the case, for example, with Hungary, while in Germany the rules governing local planning might be applied, by way of analogy. Spain is at the opposite end of the spectrum as it has legislation requiring public consultation before a public service may be severely reduced or dismantled. Thirdly, judicial attitudes towards consultation differ remarkably. The Spanish legal system is, again, illustrative of increased participatory rights, because courts will annul an act which implements policy change carried out without prior consultation.⁴⁸⁵ In the UK, too, it is likely that the courts would hold that the duty to consult users should be taken very seriously. Moreover, they would affirm the general common law principle that consultation must take place at a formative stage.⁴⁸⁶ Similarly, in Germany, administrative procedure legislation has recently been amended by introducing what is called the duty of early public participation. Furthermore, the administrative court would probably hold that users have not been provided with sufficient information, although this failure could be remedied if the local authority carries out a proper consultation before the end of the judicial process.⁴⁸⁷ This is not the case in Austria, where it is unlikely that the courts would affirm a duty to consult at an early stage.⁴⁸⁸ Fourthly and finally, judicial attitudes differ as to how the exercise of discretion should be controlled. Thus, for example, courts in the UK would take the asserted necessity of austerity measures into due account, but would nevertheless require local authorities to consider the product of consultation before finalizing any proposals.⁴⁸⁹ By contrast, in Hungary and Lithuania the courts would refrain from discussing how discretion has been exercised, especially with regard to financial difficulties.⁴⁹⁰

However, there is an area of agreement between almost all those legal systems on two general points. First, with the notable exception of Hungary, there is an emerging propensity of both legislators and judges to promote the citizens’ right to be provided with a meaningful opportunity to make their voices heard before a public authority makes a policy change which may adversely affect them. General legislation on administrative procedure would be applied, for example, within the legal systems of Italy and Ukraine. Second, if there is a legislative duty to consult users before making a policy change, as is supposed in our hypothetical case, then the local authority is required to take it seriously everywhere. Thus, for example, in the UK the courts enforce the duty to act fairly, also in the light of the democratic principle that the public must be involved in policy choices affecting it. Similarly, in Italy, the administrative court would most probably endorse the applicant’s claim that if the local authority is unable to prove that the decision severely cutting services was the only possible one in view of financial difficulties, and annul it.⁴⁹¹ In Belgium, too, the administrative court would consider consultation an essential formality; as a result, if the duty to consult is infringed, the final measure will be quashed.⁴⁹² Interestingly, in a neighboring nation, France, the administrative court would probably develop a different line of reasoning but would reach the same conclusion. Its reasoning would be different because the French administrative courts would review the local authority’s action from the perspective of the traditional principles upon which the service public is based; that is, equality and continuity.⁴⁹³ However, they would quash the contested decision.

4 Partially Unpublished Rules

Another controversial issue concerning administrative rules is information. This is controversial because administrative rules are governed by different norms from those that govern administrative adjudication and legislation. Briefly, the most basic requirement is that decisions regarding individuals must be notified to their addressees, though some legal systems have set a higher standard in the sense that identifiable third parties must also receive notification, for example when the issuance of a building permit for a factory impinges on the interests of neighbors. As regards legislation, a traditional feature of liberal democracies is that it must be published in some form if it is to be obeyed and respected. It normally comes into operation either on the date it is published (as distinct from the date on which it is made) or on a subsequent date. The underlying rationale in France is the principle dating back to the Revolution that legislation must be accessible to the public.⁴⁹⁴

It is much more difficult to find administrative rules than it is to gain access to legislation. Part of the problem depends on the fact that there is no uniform approach to the nomenclature of administrative rules. Another part of the problem regards publication. On the eve of the adoption of the US apa, an American observer pointed out that not only were individuals no longer able to readily inform themselves about the numerous rules applicable to their conduct, but government officers too were ‘unable to find their way in the labyrinth of regulations accumulated in different bureaus without adequate systematic registration or publication’.⁴⁹⁵ In Europe, too, unpublished rules proliferated. For example, a Belgian commentator observed that while legislation required the publication of regulations, other acts containing administrative rules, such as circulars and general orders were not published.⁴⁹⁶ A similar problem emerged in France, where Parliament opted for a drastic solution, consisting in depriving unpublished circulars of any effect, but numerous circulars have subsequently been adopted without being published. Like in France, in Italy a general statutory norm requires the publication of all acts of a general nature. The UK has made a different choice, as delegated legislation comes into force after it is published, and the Statutory Instruments Act 1946 is regarded by some commentators as confirming the common law rule,⁴⁹⁷ but there is a plethora of administrative rules subject to differentiated requirements as to their publication. There is yet another part to the problem, one which derives from technological progress. Although legal norms require public authorities to keep a hard copy of the rules they adopt, the question that arises is whether it makes sense to do so, when all rules can be published and be immediately accessible on the internet, thus reducing the secrecy of administrative law,⁴⁹⁸ as do the freedom of information acts adopted by many European legal systems. There remains, lastly, the question of whether agencies should be bound by their own rules, regardless of whether these are published in the official journals. This is an important aspect of what it means to have a government of laws, where the citizenry seek to hold those who govern to the respect of rules they make because they may have acted on the basis of those rules.⁴⁹⁹ The same rationale is at the heart of the prohibition of retroactive rules.⁵⁰⁰

Among all these issues, our hypothetical case focuses on the question of publication. Suppose that during a pandemic, the Minister of Health defines the prices of various types of face masks in an order that also establishes pecuniary sanctions in the event of non-compliance with the price limits. The Minister announces that the order will be published in the official journal, as required by existing legislation. But the order is published only in part, without mentioning the specific prices for the various types of face masks. Moreover, it is published on the Health Department’s website rather than the official journal. When a chemist is sanctioned by the local administration for selling the masks at a different price, she challenges the penalty before the competent court. She argues that without full publication of the order, it is either invalid or unable to produce any legal effect because her freedom to do business may not be limited outside the cases and forms established by law. The Health Department responds that the order is valid, despite its failure to publish it on the official journal, because in today’s world, a government website can potentially reach more persons than the official journal. The questions that thus arise are, first, whether the court would endorse the chemist’s arguments based on the failure to publish and, second, whether it would deem that the partially unpublished order is either ineffective or invalid.

At first sight, in this case, the area of disagreement between the legal systems examined seems broader than in those examined earlier. It would appear, in particular, that there is a profound difference between the legal systems where publication is required as a condition for the validity of the rules, and the other legal systems, where publication is regarded as a mandatory requirement and the breach of which inevitably invalidates the act to which it relates, and, lastly, the systems in which it is considered a directory requirement, in the sense that its breach does not necessarily have this effect. Greece, France, and the UK exemplify these differing solutions. In Greece, the courts do not accord weight to the label of an act as a circular or guideline. If these acts impose duties on government officials or impinge on citizens’ lives, be it favorably or unfavorably, courts require publication as a condition for validity, like regulations.⁵⁰¹ In France, after an attempt to eliminate circulars en masse, the general norm established by administrative procedure legislation⁵⁰² is that government guidance, including circulars and instructions that interpret legislation or define administrative procedures, must be published. In the absence of publication, they are abrogated. But the Code also clarifies that unpublished circulars are not applicable, and public authorities are prevented from using them in their relationships with citizens. Accordingly, whether or not an unpublished rule is still valid, it cannot have legal effects. Lastly, in the UK the facts of the leading case, are very similar to those in our hypothetical case. When an act of delegated legislation was published without the annex, and a firm was charged with infringement of the rules contained in it, it challenged the action due to the lack of publication. The Court held that the lack of publication or partial publication does not, in itself, invalidate the act, because the general common law rule is that only delegated legislation us required to be published, but this requirement is not mandatory. However, it ruled out that anyone could be held guilty of a contravention of an unpublished rule.⁵⁰³

It must be observed, however, that the area of disagreement is considerably narrowed if one takes into consideration the criteria defined by the courts. In this regard, it has been found that, according to the French administrative courts, the norm of the Code does not apply, for example, to a circular determining the standard of conduct for certain government officials. As a result, the fact that the circular was unpublished has not determined its abrogation. Moreover, and more importantly for our purposes here, it has been found that an unpublished rule cannot be applied adversely to individuals in the decisions directly and adversely affecting them.⁵⁰⁴ This comes close to the solution adopted in the UK, as well as in other common law systems, including the US, where a person may not be required to resort to, or be adversely affected by, an unpublished rule, unless that person has actual knowledge of it.⁵⁰⁵ This shows, in contrast with the first impression, that, in terms of the actual results reached in our factual analysis, the area of disagreement becomes less significant if one considers not only the ready applicable norms but also a host of other rules and doctrines decisive for their interpretation. Underlying this area of agreement is a common concern for legal certainty, which is not seen as a general ideal but a principle that prevents public authorities from applying unpublished rules.⁵⁰⁶

5 An Unexpected Area of Agreement

Turning from the specific findings to the broad over-all picture, two aspects should be considered: what could be expected and what has been found. As observed in Chapter 6, administrative procedure legislation is characterized by diversity in two ways: most, but not all, European legal systems have adopted one kind of administrative procedure legislation or another, and even among those legal systems that have one, only a few have defined general norms on rulemaking. One could, therefore, expect that the area of disagreement would be much larger than what has emerged with regard to administrative adjudication. In some instances, our findings confirm what a public lawyer with an adequate knowledge of other legal systems would have expected, for example, with regard to consultation.

However, other findings are at least partially unexpected.⁵⁰⁷ These refer, in particular, to the power to pre-determine the standards of administrative conduct. The supposed contrast between common law and civil law systems concerning the relationship between discretion and rules was found to produce fewer differences than expected. In lieu of the expected distinctions, there are interlaced areas of agreement and disagreement. To mention one further example, concerning the publication of rules, there is obvious divergence among the legal systems examined as to whether the absence of publication impinges either on the validity of rules or on their effectiveness. But all these legal systems adhere to the same norm that unpublished rules may not be applied against individuals and legal entities. Underlying this norm is the principle of legal certainty. The area of agreement is, therefore, qualitatively at least as significant as the area of disagreement. This reveals an improvement for society as a whole. ‘Citizens are better off’ if they can have adequate knowledge of the rules that, directly or indirectly (that is, through individual administrative decisions applying those rules), impinge on their interests, and can thus more easily verify whether they receive equal treatment.⁵⁰⁸