NATIONAL AND INTERNATIONAL INSTITUTIONS LAW – SECONDN PARTIAL
THE COUNCIL OF EUROPE AND THE INTERNATIONAL MONETARY FUND
INCREASING PRESENCE OF CIVIL SOCIETY ACTORS

LITTLE INTERVENTION FROM CIVIL SOCIETY
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Because if you are in a deep crisis is due to some
mismanagement of your finances  if you want the
money you must comply to a strict plan of actions 
it’s the most efficient leverage of financial institutions

Taking experts from other countries/other
organizations in order to share best practices
and experienced knowledge
INTERESTS
GAINED
FROM
LOANS
TO COUNTRIES
  Most
of these
activities
are
financed
with
additional funds. You want to help countries
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to develop and grow.
 Cybercriminality is by definition
transnational: cooperation is needed to
solve this problem
 Treaties are often influenced by what’s
happening in civil society
 Negotiations take time but the
population is less patient



ECtHR: European Court for Human Rights has
to judge on all the matters brought to his
attention by everyone that is located in the
Council of Europe Jurisdiction. Its judgements
are compulsory for all the states of the CoE
and they’re implemented in two ways:
o Payments
o New legislation in the national law
CPT: Committee for the Prevention of Torture
GRECO: Group of States against Corruption
 The aim of monitoring is to prevent
countries to have balance of payments
program
 Its focus is to make a country more
attractive for investments through
regulating justice, political system, PA
and all the conditions needed to have a
minimum credit score
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RUXIT: RUSSIA EXPELLED FROM THE COUNCIL OF EUROPE
Russia was expelled from the CoE on 16 March 2022; it ceased to be a Party to the
ECHR on 16 September2022.
Expulsion (Art 8 of the Statute) vs withdrawal (Art 7Statute)
Legal, financial (every member contributes financially) and organizational (staff
nationality) consequences of a country ceasing to be a member state of the CoE.
The expulsion of Russia has been controversial since it was decided unilaterally for the
country.
ACCOUNTABILTY REGARDNG RUSSIAN INVASION
Compensation
• Register of damage (CoE) – done
• Compensation mechanism  evaluative commission
• Funds  It’s not possible to take money from oligarchs
Tribunal on the crime of aggression: ongoing discussions
POSSIBLE SOLUTIONS: change ICC and include crime of aggression, decision from the
UN security council (qualified majority vote), agreement between countries, Ukrainian
Court is judging Purin and the procedure can be adopted by IOs.
And Belarus? Its relations with current government are suspended and it has been set
up a contact group to work with democratic forces and civil society through legal
support and training. The group is composed by 5 opponents of Lukashenko and 5
members of civic organizations.
The aim of the Contact Group is to provide the Organisation’s support and expertise to
strengthen Belarusian democratic society in line with Council of Europe core values and
according to the activities for human rights, rule of law, and democracy. It was set up by
a decision of the Committee of Ministers to hold regular exchanges of views with
representatives of the Belarusian democratic forces and civil society.
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FORMS OF GOVERNMENT
To understand how national institutions work, we need to understand the forms of government.
It’s important to understand what are they and how we classify them to understand how
administrative law and the principles of admnistrative law place differently in different forms of
government. Actually, there are sharp differences between them in how administartive law
principles are applied in these forms of government. Forms of government are going to be
assessed in a synchronic way.
The terms forms of government refers to the rules concerning the distribution of power among
different branches of government. We want to analyze the relationships between the components
of a government, so we are addressing the topic in an horizontal way, and we are seeing not only
the allocation of power, but also the interplay between different branches of government. How the
power is allocated is not enough to understand the relationships between the branches. For
example, in the US, in which the legislation is given to the congress, the executive to the president
and the judiciary to the court, while Italy, parliamentary, has a different allocation. However,
different allocations are not enough and we have to look at the interplays between, for example,
between the parliament and the government, to understand how these relationships are actually
shaped and how they happen to work.
We are going to see different forms of government in the context of democratic pluralistic States,
and no authoritarian or totalitarian states. In fact, the term government is much broader than just
inside democratic pluralistic States.
In authoritarian and totalitarian states, there is not an allocation of power among different hands,
powers are not separated but they are all in one hand.
By classyfing FoG, it’s possible to outline several models explaining how power is organized
between constitutional bodies. Montesquie was the first one to conceptualize the necessity to
separate the different parts of a state, and the necessity that the three different functions had to
be separated and the power needed to be equally distributed to safeguard citizen.
By checking balances between the three functions, we ensure that there’s no one prevailing
power, and then each power is accountable toward each other and troward citizens.
Administrative procedures also need to be transparent to allow citizen understand how they work.
We are classyfing different legal orders because we want to shape a legal order in different models,
and there will be some differentiations.
It’s important to talk about FoG because we want to understand the main features and elements,
because we want to understand how the PA works within a certain legal systems. Then, the
functioning of FoG has effect on the incentives of politicians to delegate poilicy-making authority
to government departments, agencies and quasi-private bodies.
Focus on the advantages and disadvantages of specific institutional configurations
e.g. Debates about the virtues of parliamentarism and theperils of presidentialism
e.g. Studies on constitutional design try to determine what isthe optimal form of
government, given certain socio-politicalcircumstances
The analysis of different FoG helps to understand the balancebetween government effectiveness
and stability, politicalrepresentativeness, and respect for the Rule of Law.
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WHY IS IT IMPORTANT TO CLASSIFY FoG FOR NATIONAL INSTITUTIONS?
There are different methods to classify FoG:
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Implementation of separation powers
Monistic or dualistic forms. The monistic form is applied to the system where only the parliament is
elected by the citizens. The dualistic refers to those systems in which also the head of governemnt is
elected by citizen.
Position of the executive in front of the parliament, and this classification divides FoG on the
existence of a position of supremacy of the parliament over the government or viceversa.
Presence or absence of a relationship of confidence
Legitimation of the exceutive
There are many forms of government:
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Parliamentary executive
Presidential exceutive
Semi-presidential executive
Directorial executive
Neo-parliamentary executive
In Elgie’s writings, there’s a shape difference between dispositional properties and relational
properties.
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Dispositional properties focus on:
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whether there is both a head of State and head of government,
whether or not the incumbents of these institutions are popularly elected (if there’s a popular
election or not) and
wether the incumbents serve for a fixed term, so it regards the duration of the term.
PARLIAMENTARY EXECUTIVE
To understand how rules operates we should have in mind which are the origins of those
principles.
The parliamnetary executive is deeply rooted in the legal framework of GB and in the tradition of
the House of Command and it was shaped by chance and convention.
It emerged from political expediency and constitutional practice,rather than by political design
outlined in law (no codified Constitution). Its historical evolution in the UK and the evolution of the
relationship among the cabinet, the king and the house of command is related to two main
moments, 1782 and 1832:
In 1782 we saw an emancipation of the role of the minster against the monarch. In this moment
the King understood that the prime minsiter needed to have the majority of the parliamentary.
In 1832 in england there was the approval of the reform act. The king replaced the prime minister
with another one, but this new one was unable to obtain the majority and so he had to reappoint
the previous, and this is the last time that the King exercised this power alone.
The main features of the Parliamnetary executive are:
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Only the parliament is directly and popularly elected.
There is both a Head of State and a head of government, which exercises different functions.
The head of government, prime minsiter exercises the exceutive power with the cabinet and the
other ministers, the head of state has a neutral role justified even though the president has the
power to dissolve the parliament.
The realtionship of confidence between parliament and government is crucial, and it must be
understood in light of the necessity of the prime minister when he no longer has a majority in the
parliament.
When that confidence is lost, the Prime Minister must:
o resign so that a new majority can be formed within the Parliament or
o ask the Head of State to dissolve the Parliament and call for newelections (power of
dissolution)
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The relationship of confidence means that the government needs to havce confidence by the
parliament, sometimes it’s presumed, other times such as in Italy this confidenvce must be
formally given by the parliament to start working.
Another point, is the motion of confidence. Within the normal ongoing of the governemnt, if
there’s a particular important bill, the governemnt puts the motion of confidence, which means
that if the majority in parliament is going to vote against that particular bill, then the confidence
will be lost. This is used to prevent dissident members in the majority to vote against it. So the
motion of confidence is claimed by the government itself when there’s a crucial bill which is
fundamental for the government to pursue its political scope, to avoid that the majority of the
parliament will vote against it. Generally, if you put the motion of confidence you are coinfident
that the law will pass, because no government wants to resign.
If a motion of confidence is rejected or a motion of no confidence is passed, theGovernment has to
resign:
Ø Appointment of a new Prime Minister
Ø Dissolution of the Parliament
The motion of no-confidence is a procedure through which parliament’s members can withdraw
confidence.
The constructive vote of no confidence is a mechanism of rationalization used in germany.
Power of resolution is only formally given to the head of state, but he cannot exercise it
autonomously.
The parliament it’s a central actor, but it has not supremacy over the other actors. It’s the
representative organ for excellence, whose members are directly elected. It is central in
parliamnetary regimes, but this does not entail a position of prominence, given the architecture of
the legal context.
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In the executive, the prime minister sets the policy agenda, develops and introduces new
legislation in order to pursue policy objectives and he’s responsible for directing the adminsitration
and setting executive policy.
The head of state is a generally neutral power, he represents national unity both internally and
externally. Generally, it’s a monocratic organ and it can be a president, a monarch and it can be
elected by the parliament or other organs.
The cabinet’s main function is to formulate and implement administrative and political policies.
Dispositional properties in the parliamentary system:
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whether there is both a head of State and head of government: YES, the head of state can be a
president or a monarch, depending on whether we have a presidential republic or a presidential
monarchy (UK, Spain) and then there’s a head of government (prime minister). For example in Italy,
the president of the republic reprsents the unit of the country.
whether or not the incumbents of these institutions are popularly elected (if there’s a popular
election or not): NO, the incumbents are not popularly elected, because the head of state is elected
by the parlaiment or on hereditary basis and the head of government is appointed by the head of
state and needs to have confidence of the parliament.
wether the incumbents serve for a fixed term, so it regards the duration of the term: The head of
state serves for life in parliamentary monarchies or for a fixed term in parliamentary republics,
while the head of government serves until there’s support of the parliament, because the nit could
be obliged to resign.
PRESIDENTIAL EXECUTIVE FORM OF GOVERNMENT (US EXAMPLE)
PRESIDENTIAL EXECUTIVE: KEY FEATURES
• Presence of a monocratic executive power, vested in a President which is directly elected, and
this is the first main elemrnt that differentiates among the parliamentary and the presidential,
because here the executive power is vested in the person of the president, which is both a head of
state and government which is addressed with the general powers of a head of state and of
government.
• Constitutions provide for an architecture of rigid separation between the two branches,
guaranteed by, and this also helps in the differentiatiuon, because there’s no relationship of
confidence and no dissolution power of the president toward the parliament:
Ø inexistence of a confidence relationship, so it’s not possible for the parliament to oblige
the president to resign, it’s only possible to impeach the president.
Ø inexistence of a dissolution power
• However, most Presidential systems have introduced procedures to:
Ø increase the President’s ability to influence legislative work (e.g.veto power), so even if
the congress is vested with the legislative power and there’s a separation, but there are
some elements that makes this separation less strict, because for example the president
has some strong powers to retain the legislative power, such as a veto power. The chamber
need to collect an extensive consensus within the chamber to overcome this veto power of
the president. There are also some other powers that the president is vested with.
Ø increase the ability of the members of the legislature to influence the operation of
government (e.g. impeachment): please note,that the Parliament cannot vote a motion of
no confidence and force the President to resign for political reasons. For example, in the US
this procedures is differentiated within the two chambers.
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PRESIDENT OF THE UNITED STATES (POTUS)
The most renewable example of the presidential form of government is the US, but it has been
reproduced in many states, such as some Asian states.
The power of the executive branch is vested in the President.
The executive branch receives its legitimacy from the voting bodyTerm: 4 years, renewable only
once (XXII Amend.)
Both the parliament and the president are popularly elected, and this ensure representativeness
and efficiency (some scholars think this is the most democratic system), but there’s a drawback
because the fact that they are both popularly elected may generates some conflict in the
relationship they are engaging among each other. Another drawback is that sometimes the
functioning of this form of government depends on the personality of the president and so this
may produce certain conflicts and frustration on certain elements of the constitutional
architecture. These are the reasons why the presidential form of government in other political
system which are very different from the US, may produces important deviations from the US.
Furthermore, the US had also a particular historical context in which the constitution was
established. The formal state is a federal one, and the powers are also divide horizontally within
local states authorities.
The president has an equal democratic footing granted to the parliament as well because they are
both popularly elected, and this make the US legal system a dualistic one.
The president is in charge for a fixed term which is 4 years renewable only once, and this is another
element of differentiation between the presidential and the parliamentary systems. The reason
behind the renewable only once, is trying the concentration of such an important power within a
single person for a long time.
POWERS OF THE POTUS
• Veto power over legislation
• Commander-in-chief of the armed forces
• Power to make treaties
• Power to appoint ambassadors, officers and judges, this is a very complex and strong power of
the potus. There are certain appointments that the president has power to make, but they need to
be approved by the upper Chamber, such as the nine justices of the Supreme Court. The need for
this counterbalance of the power of the president relies on the fact that it’s possible for a
president to shape the philosophy of the supreme court by appointing the nine justices, and this
would have also effects on the civil side. This counterbalance is part of the checks and balance
system of the US.
• Power to issue pardons, Trump was very peculiar on that, because on the last period of each
presidency there’s a number of pardons issued, and Trump had a very large number of pardons
issued, and when he was impeached he also said to have the power to pardon himslef.
• Power to call congress for special sessions
• Power to initiate legislation
THE US CONGRESS
The legislative power is attributed to the Congress, composed of two Chambers:
• The House of Representatives, the lower Chamber and its members are elected by each state
depending on the proprortion of population of each state. This chamber has a fixed term and it
elects 1/3 of the members of the senate.
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• The Senate is the upper chamber, it’s composed of 200 members, elected for a 6 years term.
Every 2 years 1/3 of this chamber is relected and this makes it possible for the chamber to have a
majority which is flexible and variable in time, also according to the political perspective held by
the president.
RELATIONSHIP BETWEEN THE PARLIAMENT AND THE EXECUTIVE
For certain crimes it’s possible for the lower chamber to impeach the potus and this takes place in
the senate.
IMPEACHMENT: The US Congress can impeach the President on the following grounds: treason,
bribery, or other high crimes and misdemeanours
Ø the House of Representatives impeaches the POTUS by approving articles of
impeachment
Ø the impeachment trial takes place in the Senate. There,conviction on any of the articles
requires a two-thirds majority vote and results in the removal from office
Dispositional properties (presidential executive form of governemnt) focus on:
1. whether there is both a head of state and a head of government; NO, The Head of State and the
Head of Government are combined into one institution: the President. Strong separation between
the President and Congress. There is no relationship of confidence nor dissolution power.
2. whether or not the incumbents of these institutions are popularly elected; YES the president
is popularly elected,
3. whether the incumbents serve for a fixed term. YES, the president serves for a fixed term
wich is 4 years and one renovation.
SEMI PRESDIENTIAL EXECUTIVE
It embraces element of the presidential system and some which pertain to the parliamentary one.
The head of state is elected by people.
In this form of government there’s a dual element because the
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The concrete functioning depends on peculiar and concrete features:

Semi-presidential systems where the Prime Minister prevails(Austria, Ireland)

Semi-presidential systems which are based on a diarchy or clear separation of competences
between the Prime Minster and his government, on one hand, and the President of the Republic,
onthe other (Finland, Portugal). Here there’s a balance of powers and separation of competencies
between government and the president of the republic. This does not diminish the power granted
to them, but there’s a good combination of the two and that’s why there’s a diarchy.

Semi-presidential systems where the President plays a central role(France)
THE FRENCH SEMI PRESIDENTIAL MODEL
The term was used to describe the Executive that was introducedin France in 1958 – V Republic
The French Constitution was enacted in 1958, during the Algerian crisis.
De Gaulle founded the V Republic with a strong presidency, and he was elected President of the
Republic. De Gaulle is believed to have shaped the V Republic which is calling for a very strong
power of the president, and the prime minister ha sonly the power of implementing and the
political address of the preisdent.
The semi presidential executive was initially a way to enact a parliamentary form of government,
with strong rationalization then, he introduced the direct election of the President of the
Republicin 1962 with a presidential referendum. This was an instance that changed it and made it
into a semi presidential executive.
The prime minister is nominated by the president of the republic and it’s direct expression of the
majority of the parliament, and so cohabitation can occurr.
It occurs when the President is from a different political party than the majority of the members of
Parliament.
Cohabitation occurs because of the duality of the executive
Since 1958, France experienced cohabitation three times (1986-1988; 1993-1995; 1997-2002)
Even though this form of government performed well and also cohabitation was accepted and also
was helpful, sometimes cohabitation had some difficulties in performing.
Some ways to diminish possibilities of cohabitation were to elect the president of the republic
before the parliament, so that he could guide the election of the parliament. The other way was to
dimish the power of the president of the republic.
Dispositional properties (Semi presidential executive) focus on
1. whether there is both a head of state and a head ofgovernment; YES, there are both of them
and they are both vested with functions.
2. whether or not the incumbents of these institutions are popularly elected; NO, they are not
popularly elected, here the president of the republic is directly elected (different from popularly
elected) and the head of government is suggested by the president, and then there’s the need to
establish a relation ship of confidence.
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3. whether the incumbents serve for a fixed term. The head of state serve for a fixed term, while
the head of government can be dismissed if the relationship of confidence expires, and so he does
not serve for a fixed term.
TERRITORIAL ALLOCATION OF POWER
When analysing forms of government and how power is ditributed at national and sub-natiobnal
level, reference is made to the rules concerning the distribution of power among different
branches of government:
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a horizontal relationship
relationship between different constitutional bodies (i.e. organs that share the same level
ofsovereignty and independence)
Parliament, Government and Head of State
The distribution of power among different branches of government is also at the sub-national
level, so for example in the Italian regional form of government. When we are differentiating
between centralzied and decentralized states, gives us the sense of the way and the extent to
which, legislative powers is actually distributed in levels of government. In unitary states there’s no
allocation of legislative power, but only of the administrative power we have an allocation of
power at sub-national level. Instead, decentralized states, provide the possibility to allocate
legislative power at sub-national level, both in regional and federal states.
We want to uderstand the different possibilities of allocating legislative power within organs at the
national and sub-national level, looking at the difference between centralized and decentralized
(federal and regional) states.
Every time we are seeing in a horizontal way how organs are related we are talking about a form of
government, and this can also be reproduced at a sub-national level. The relationship is about
executive and legislative power.
Italy is a regional system, which embraces forms of decentralization and the governmental levels
below state are regions. The FoG of Italian regions is parliamentary and it’s very new. It entails two
main features, which are that both president and council of the region are directly elected at the
same time by citizens of the region. The allocation of powers works: the exceutive power is vested
in the Giunta and president, and the legislative is allocated in the regional council, which also has
importance in legislative action at state level. The main element is that the incumbents of the
organs are directly elected (1) and that we may find a relationship of confidence between the
president and council, and this relationship is explained by simul stabunt simul cadent
clause/principle. This is true when the president resigns, and also every time that either the
president of the region or the council of the region fall, then necessarily elections must be called.
This does not happen at the national level, while this is true in the new parliamentary form of
government.
NATIONAL LEVEL: Every time that we are trying to see how pow
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DISPERSAL OF GOVERNMENT AUTHORITY
Governmental authorities may be allocated
toward sub-national entities, such as the
comune, metropolitan city.
Traditionally, sovereignity has been allocated
towards an entity which is the state, up until the
IIWW. Then, after WW2, there have been trends in
light of many trajectories that have seen the
allocation of part of sovereignity to upper level
(international level (WTO ex), or regional (EU)). EU
is an example of sovranational integration, because
states who acceeded to the EU gave a significant
amount of sovereignity to the EU itself, which
assesses judicial and executive functions. This
significant allocation of power is in light of the socalled democratic deficit of the EU. Another
examples are also international court of justices,
UN, NATO, WTO, IMF.
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Both the upwards and downwards
trajectories are covered as processes of
decentralization, but we are talking about
regional integration, and the
decentralization downwards is about the
allocation of power at sub-national level, so
this is what we mean when we talk to
decentralization, so the despersion of
sovereignity downwards.
UNITARY AND DECENTRALISED STATES
When we are talking about form of states, we may distinguish between unitary and decentralized
states and what makes us distinguish them is the possibility of sub-national entities to legislate. We
must look at whether sub-national entities are granted with legislative power, or only with
administrative power or bureaucratic functions.
Even when we talk about unitary state(France), still there’s a territorial articulation, it’s only
different in what power is allocated. There are some exceptions, such as Vaticano or Tonga.
Every State has a territorial articulation (with the exception OF small states, e.g., Vatican State and
other micro-States)
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Central government
Territorial entities (States of a federation, Regions, Provinces, Länder, Cantons,Comunidades
autónomas)
UNITARY STATES: Only central government has the legislative power
DECENTRALISED STATES: Sub-National entities also have legislative power.
In unitary States, the legislative power is exercised exclusively by the central government,implying
that sub-state entities do not exercise legislative functions, but merely administrative ones.
This means that those legal framework may conceed the existance of local units, but those are only
vested with administrative and bureaucratic functions and not legislative ones.
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In decentralised States, the legislative power is exercised not only by the central government, but
by the sub-state entities as well. At least, the first level of sub-national entities exercises legislative
power.
The way power is allocated influences adminsitrative structure of a state and the national
institutional level. This also has repercussions on the concrete administration of same issues, such
as healthcare in Italy, and on the conception of them. This also has an impact on different
administrative tools.
Of course, they are models, thus they do not always work. Sometimes, we may classify a certain
system within a certain tipology, but that system can have some characteristics which pertain
another category. So, concrete legal frameworks can of course be categorized, but we can see
some differences.
Unitary vs decentralized, and within decentralized states we may distinguish between regional and
federal states.
FEDERAL AND REGIONAL STATES
FEDERAL STATES: A high level of political autonomy
REGIONAL STATES: Less political autonomy with respect to federal states
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MAIN DIFFERENCES BETWEEN FEDERAL AND REGIONAL STATES
1) Allocation of legislative power to sub-state entities;
2) Allocation of judicial power at sub-state level; in regional states there’s only a national judicial
system, which is for example valid for all murders that happen all around the state, while in federal
states it does depend on where you are processed because crimes can have a different panlties
depending on different states’ laws.
3) Sub-state entities’ representation in the upper chamber of parliament;
4) Involvement of sub-state entities in constitutional amendment procedure;
5) Existence of sub-national Constitutions.
The way toward federal and regional have been originally formed. Federal systems (USA,) have
been formed with a centripetal movement, which means that they were separated states that
aggregated togerther and formed a federation.
Regional systems(Spain, Italy) have been created from a unitary state that created different
territorial entities toward which only certain powers and functions have been allocated.
When they started operating, the FoG of the regions were different from the current one, because
their functioning changed over time.
We can distinguish between federal and regional systems by understanding which is the institution
toward the which power is allocated.
FEDERAL SYSTEMS:
1. The Constitution contains a provision listing the subject matters on which the central government
has exclusive competence.
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2. Member States have their own judiciary system (separated v. integrated model).
3. The second Chamber of Parliament is a Chamber of sub-national entities (equal v. weighted
representation).
4. Member States take part in the constitutional amendment procedure.
5. Member States have their own Constitutions. So, States have their own constitution where you can
find rights that are protected by a legal framework.
REGIONAL SYSTEMS:
1. The Constitution contains a provision listing the subject matters on which Regions have exclusive
competence.
2. Regions do not have their own judiciary system.
3. The second Chamber does not represent sub-national entities.
4. Regions do not take part in the constitutional amendment procedure.
5. Regions have their own Statutes. Regions can only have statutes that provide for the FoG of that
entity or how functions allocated to that entity are performed.
A COMPARATIVE IN-DEPTH ANALYSIS (Main elements to look at in the comparison)
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Who does the upper Chamber (Senate)represent?
Exclusive and residual legislative competences.
Participation of sub-national entities to constitutional amendment procedure.
EXAMPLE: THE UNITED STATES
Art. I, Sec. 3:
The Senate of the United States shall be composed of two Senators fromeach State, ...
Principle of Equal representation, so the S
Art. V:
The extent of the participation granted to federal states in the constitution amendment procedures
is very significant.
The Congress, whenever two thirds of both Houses shall deem it necessary,shall propose
Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing Amendments, which, in either Case, shall be
valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof, as the one or the
other Mode of Ratification may be proposed by the Congress; ...
Principle: States participate to the constitutional amendment procedure
Principle: A proposed amendment becomes part of the Constitution as soon as it is ratified
by three-fourths of the States (38 of 50 States).
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EXAMPLE: ITALY
Here, regions can ask for a constitutional referendum in constitutional amendment, but their
participation to the constitutional amendment is more limited compared to the US.
Art. 57:The Senate of the Republic is elected on a regional basis ... and this does not mean that
represents regional entities of government.
Art. 117:Legislative powers shall be vested in the State and the Regions incompliance with the
Constitution and with the constraints deriving from EU legislation and international obligations.
The State has exclusive legislative powers in the following matters: ...
Concurring legislation applies to the following subject matters: ...
The Regions have legislative powers in all subject matters that are notexpressly covered by
State legislation
Art 117 is peculiar because even though we are in a regional legal framework, the
constitution lists in paragraph 2 the exclusive comeptencies of the state, and then in paragraph 3
the subject matters where there’s a shared responsibility between state and regions, and it’s
written so that the state legislate about the general guidelines, and then regions can legislate
about the specific details.
Paragraph 4 provides a residual clause in favor of the sub-national entities, so all the
subkect matters that are not enumerated nor in paragraph 2 and 3 are to be left to the regions.
Art 125: Administrative tribunals of the first instance shall be established in the Region, in
accordance with the rules established by the law of the Republic. Sections may be established in
places other than the regional capital. Within regional systems we have administrative tribunals,
established by regions, but they should be working in light of the law established by the Republic.
Instead, in the US is very different.
Art 138: ... Said laws are submitted to a popular referendum when, within three months of their
publication, such request is made by one-fifth of the members of a House or five hundred
thousand voters or five Regional Councils ...
ITALIAN REGIONAL SYSTEM
The Republic is one and indivisible (Art. 5). There’s a unitary sense within the architecture of the
republic. However, the republic recognizes the existance of other local entities, so the principle of
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unity must be justapposed to the constitutional recognition of local authorities that are also vested
with some legislative and administrative power.
Nonetheless, the unitary character of the State has not stopped the development of a rather
complex system of autonomous territorial areas (Art.114):
• Municipalities
• Provinces
• Metropolitan Cities
• Regions
• The State
Due to historical reasons, not all Regions are equal:
• Ordinary Regions (15)
• Special Regions (5)
Two main reforms of Title V of the Constitution
• The 1999 Reform, which altered the structure of the title V of the Constitution. From a
palriamnetary form of government, the reform adopted a transitory form of government which is
the neo-parliamnetary one which is based on some main features: direct and contextual election
of the regional council and the president of the regiona and the simul stabunt simul cadent
principle. This is a tarnsitory form of government, which means that regions can adopt different
forms of government, but they must adopt the simul stabunt simul cadent principle if they opt for
the direct election of president and council.
Ø Regional form of government
Ø Statutory powers held by ordinary Regions
• The 2001 Reform
Ø Allocation of legislative powers between Regions and State(art. 117 Const.)
LESSON 4 – THE EVOLUTION OF PUBLIC ADMINISTRATION
When you think about administration, there’s a tight relationship between administrative organs
and the executive and that’s also about the importance of the functioning of the administration
within a form of government. This gives you sense of the place that is vested to administration in
the constitutional architecture. Of course, the administration is vested with the administrative
function and the executive is vested with the function to implement goals and objectives and for a
most relevant part the executive pursues its goals through adminsitration, so the executive define
the policies and the goals and how to implement them. Then, concretely, it implements them
through administration.
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The origins of the PA are rooted to the tight connection of adminstrative bodies, which were
servants for policies and goals of the government. This is very evident in the structure of the italian
constitutional, because in part 2 (organization of the republic) there are some artcicles on the
organization and structure of the republic, the government and the constitutional court. The
functioning and the structure of the PA is included in the part referred to the government. For
example, article 95 of the constitution provides a regime in which we understand the tight
relationship between the council of minsiters, the PA and the activities of all the minsiters, because
ministers are responsible for the activities of their ministry, and so they shall have some control
over where this action is concretely implemented.
Article 97 provides that officies are organized to grant efficiency, impartiality and this tells us that
there’s a margin of independence that must be granted to officials of PA.
GOVERNMENT AND ADMINISTRATION
• Public administration is instrumental in choosing objectives for bodies that define public policy in
areas of public interest
• The traditional understanding of the 1800s describes the concept of public administration as a
body in the service of the Government
• Interdependence between Government and administration
Ø Italian Constitution
Part I – Organization of Republic
Title II – The Government
Section II – Public Administration
• To our purposes, the evolution of government and administration shall be studied in correlation
with the evolution of constitutionalism.
•Four different phases:




Liberal revolutions
The 1800s
Beginning of the XX century and constitutionalism post WWI and WWII
Development of Welfare State
SOME PROBLEMATIC PROFILES
• Constitutionalism and limitation of power v. progressive growth of the executive power
• Rethinking the traditional understanding of models, there’s some part of scholars that’s
challenging the traditional understanding of models. So by looking at the evolution of the
admnistration in traditional law, we should question wether we should provide a short distinction
of models.
• Evolution of the relationship between government and administration and their progressive
differentiation, because even if it’s true that at the evry beginning they had a tight relationship,
that were some path progressingly distinguishing the areas of competence of the executive and
the adminsitration.
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How administration evolved in a diachronic perspective?
The first evolution step is the absolute state, in which there’s not much articolation of powers and
not much allocation of power among different levels. The main feature of the absolute state is the
concentration power which is vested in just one person.
In an absolute state, without separation of power, it’s difficult to tal about administration. The
absolute state progressively to enlighted absolutism, which is the form of absolute state which
found some florishing example, was still an absolute state in which the functions were all vested in
a monarch, but there was the first move of the state toward certain functions and certain citizens,
even if everything was still coming from the monarch.
ABSOLUTE STATE
• Concentration of powers – Monarch
• Bureaucracy
• Enlightened absolutism (Stato di polizia)
«Everything for the people, nothing by the people»
LIBERAL REVOLUTIONS
If the state is progressively engaged in many different functions, the state needs also a human
force, to perform all these functions that it retains.
The relationship between state and citizens was not conceptualized anymore in a invertible way.
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THE ADVENT OF PARLIAMENTARISM
In continetal europe, some phenomena made us understand the evolution of adminstration: the
advent of parliamentarism which has a crucial role in the parliament engaged with a relationship of
confidence to the executive. We also see an evolution of the executive power, because in
monarchies the executive was inhabited by the monarch, the ministers but it’s starting to have, in
parliamentary systems, a soul that’s autonomous from the power of the king, and the power of the
king starts to be relegated to some less critical functions. So the executive powee starts to move
away from the king and this has important repercussions on the transformation of administration
and how it is related to the government.
• In the 1800s:
Ø Expression of parliamentary majority
Ø Relationship of confidence
• Transformation within the executive power:
Ø Diarchy between Monarch and government
Ø Government is not a mere appendix of the King
Ø Transformation of the administration and gradual evolution ofthe relations between
administration and government
HOW ADMINISTRATION HAVE EVOLVED IN DIFFERENT LEGAL FRAMEWORKS
RÉVOLUTION: THE FRACTURE LINE AT THE ORIGIN OF ADMINISTRATIVE MODERNITY IN EUROPE
In France, under the napoleonic era, there is the raise of an administrative power. In that moment
the response to a growing complexity was to find new structure of adminsitration. This was also
the moment when a side system of adjucation of the acts of administrative law was established.
This does not mean that we have a two-tier judiciary systems, this only means that some tribunals
are only vested to judicate about administrative acts, so the conformity of the administrative
procedures (this is also how it’s in Italy today).
• The emergence of administrative power is not precisely traced as when the pouvoir constituent
purported to abrogate a constitution ancienne
• Growing complexity of absolute monarchy
• Justice v. administration publique
• New forms of gouvernamentalité or arts de gouverner emerged in the eighteenth century:
toward the flourishing of modern administration
• Napoleonic era in France witnessed the definitive emergence of droit administratif, and the birth
of the contentieux administratif and the new regime of administrative acts
• Justice and administration were divided and separated
RECHTSSTAAT: THE GERMAN CONCEPTUAL CONTRIBUTION AND THE LEGAL LIMITS OF
ADMINISTRATIVE POWER
Here, the idea of administration gradually took place through the enactment of reforms. The seed
that we find in continental legal frameworks, made also the case for the possibility to develop the
theory of the rule of law, born in the german legal context. The rule of law had a significant impact
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in how adminsitration functioning is concieved in these legal context, and that administartive
bodies can be vested with significant powers, but this needs to be properly regulated.
• The slow emergence of the idea of administration
• State-citizen relationship
• Calls for decentralization
• Continental jurists developed the idea of the Rechtsstaat, originated inGerman doctrine and
progressively spread in continental doctrines as well
• Conceptualization of administration as a power and as a field requiring the existence of legal
limits
RULE OF LAW: THE ANGLO-AMERICAN VARIANT IN THE LAW OF ADMINISTRATION
It was developed in a contingent way, on a case by case basis.
• During the nineteenth century, an administrative space progressively emerged in England in the
attempt to tackle concrete issues,
• Spread of administrative authorities holding executive prerogatives and discretionary powers
• No establishment of an administrative judge
GOVERNMENT AND ADMINISTRATION IN PLURALISTIC STATE
Understand how government, administration and their relationship evolved in democratic
pulralistic states, which are directed toward rationalization, to make executive and the government
more stable to provide a unique political direction, which is also expression of the parliamentary
majority.
• Government:
Ø Mechanisms of rationalization
Ø Unity of political direction
Ø Political direction as the expression of the majority
• Administration:
Ø Stabilization of the administration
Ø Relations between administration and government – impartiality(e.g. art. 95 v. art 97 It.
Const.)
Ø Big government
Ø Convergence? Possible path of convergency among different models of adminsitration
and of course between administration and the government.
The italian is a classic example of the need to combine digitalization with the necessity to provide
an administration which functions in a more efficient way. Primarly sources of law are tryna follow
a rigid organization of some administrative structures.
There are also some other trends, because the reform of administration is right now under
discussion. There are different forms of decentralization, and the way a state is decentralized and
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the allocation of functions are dependent on historical, socio political elements but can also be
challenged in light of recent trends, because also traditionally unitary states are trying to achieve a
form of decentralization. There have also been way to conceptualize decentralization also toward
citizens and not only toward sub-national entities.
Another trend which has been devloping is that of privatization, because some privatization
movements which have occurred in the 90s have changed the way administration has generally
emerged, and some administrative authorities have been envisioned to control certain sectors,
even though those sectors have been privatized, because they still pursue a public interest, so
there’s the necessity to privatize that sector combined with the necessity to regulate that sector
and put it under a specific framework of control.
Also, new subjects of political direction have been justapoosed to the national executives.
NATIONAL EXECUTIVES AND BUREAUCRACIES
When you think of administrative organizations in a comparative way, it’s difficult to compare
different legal frameworks for certain reasons. Inded, the conceptualization of bureaucracies is
dependent on peculiar contexts.
1. Bureaucracy
2. Ideal Bureaucracy
3. Hierarchy and its elements,
3.1.Centralization
3.2. Central governmental institutions
3.3. Civil service
4. Independence (follows)
COMPARING PUBLIC ADMINISTRATION?
It’s true that we’ll analyze 4 different legal frameworks, but it’s difficult to develop models and
comparative classifications.
Comparative efforts are less frequent in the law of administrative organization for two reasons
1. Historically and politically rooted in each administrative legal system, and it’s very much rooted
with historical peculiarities and contingencies within specific legal frameworks. In france,
development of administrative law is very dependent on the napoleonic era and on the historical
architecture of france, while the structure of administrative organizations in germany is dependent
on the federal tradition that has been developped.
2. Small size of the normative basis in constitutional law, it’s the second reason of difficulty,
because generally it’s a minimum attention devoted to administrative law in constitutions, which
give few provisions to administrative law. If you look at the italian constitution, few articles are
dedicated to administrative law and the organization of administrative bodies(2 provisions),
comapred to the amount of provisions dedicated to other organs.
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ADMINISTRATIVE LEGITIMACY
When we’ll analyze these two ideal types of the relationship between administrative institutions
and the executive, you must think about a peculiar feature, which is providing for administartive
legitimacy. The way trough which administartion is organized is conceived in a way that can ensure
administartive legitimacy, and when we’ll study hierarchy and independence that decsribe
executive-administarrtion relationship, both hierarchy and indpendence ensure administrative
legitimacy. Administrative legitimacy is important because it’s the right for the democratic
principle, because every power that a subkect is vested with shall emanate from the will of the
people. And this is compliant with the necssity to make also adminstration being dependent and
compliant with the democratic principle. In Germany, there’s the chain of legitimacy, which is a
clear structure of legitimization toward administration. So the possibility for adminsitartion to
proceed in its duties must be compliant with the constitutional provisions, and we can achieve this
throygh transparency in administartive procedures, and also in the way administartion is
hierarchically organized, and in the way administration works independently.
• The core issue is administrative legitimacy, derived in most instances from the democratic
principle
1. Hierarchy
2. Independence
• Ideal-types of the relationship between the political executive and bureaucracies and within
bureaucracies. These are two ideal-types of how to shape the relationship between executive and
adminsitrative organs, to ensure adminsitartive legitimacy of these administrative organs.
IDEAL BUREAUCRACY
Ideal bureaucracy refers to the
conceptualization of Weber of what
he conceived as ideal bureaucracy,
and how we find these elements in
administration.
Bureaucracy shall be systems as a
system of rules and procedures
which are formally and informally
designed to provide operational
schemes of an organization, to let
administartion perform efficiently
and rationally. You must relate to
the principle of a clearly defined
hierarchy, so a clear chain of
command and professional functions to be clearly allocated. This develops power structure and
the formalization of rules. This is also clearly connected with the principle of division of labour,
which is essential because you need to have a division of albour to vest each actor with a specific
role and function. According to Weber, through division of labour and specilaization you can
improve quality, reduce costs (time and money). The, you need to have detailed rules and
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regulations, because you need to provide for directives, such as clear instructions to provide a
clear definition of what should or should not be done. Bureaucracy shall also be authonomous,
impartial and impersonal and this is the only way through which you can achieve certain goals,
because only in light of an impersonal way pf working, you can apply the same rules to everyone
within the organization. Another principle is career orientation, and it means that every individual
has a peculiar and unique set of skills and capacities and that the employer shall individuate and
allocate them in the most efficient way by finding the most suitable position for each candidate.
Selection processes must be formal, because candidates must perfectly respond to specific
characteristics.
If we think the ideal model of bureaucracies, the positive sides are transparency, equity, precise
accountability
The cons are rigidity, slowness, no discretion in selection processes.
BUREAUCRACY



All governamental offices
All public officials
BUT inefficient organization of public institutions?
HIERARCHY
By understanding what we mean about hierarchy, when we started talking about hierarchy and
what is the history behind it.
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In the middle age, in particularly within organization in the catholic chucrch we have the roots, and
this structure was used in french in the napoleonic era.
WHY HIERARCHY?
We shall talk about hierarchy to frame the functioning of organization in light of FoS and FoG and
every time that we are addressing administartive law we need to understand the connection the
relationship between the executive and the administration, and also the one created downwards
with the citizen. Also, the impact on them of implemrnting political lines. There’s also the need to
enforce democratic rules. Providing for a certain organization over another is the way trough
ewhich adminstrational framework try to implement the will of the exceutive, by respecting the
need of the people. A very pyramid structure it’s the way through the which easing the
transmisssion of the electoring and it indirectly shape a certain political line that the government
will pursue and that the administartion will implement. This model is used by administartive
scholars and to ensure administartional structure are able the will of the people in the whole
functioning of the adminsitartion.
Hierarchy is a pattern of administrative organization to guarantee democratic rule
The administration and its organization are institutional tools to implement the will of the
sovereign (i.e. the people)
Hierarchical structures are built to ease the transmission of the will of the
legislator/electorate/people in situations where there may be uncertainties.
ELEMENTS OF HIERARCHY
There are three layers of hierarchy, and we must put that in the context of FoG and FoS, and also
put this in light of different organization of states (centralized and decentralized). There’s a
convergence that we may detect between administartive path and trajectories.



Centralization, we mean the existance of governmental entities at the center and how they are
structured and related to administrative structures, in light of different forms of decntarlization and
different legal frameworks.
Central governmental units, how hierarchy is organized at the center.
Civil service

CENTRALIZATION
Centralization is the core of hierarchical government.
Prroviding a center of adminsitartion was crucial for the historical progress of adminsitartion, since
the example of the french constitution. In fact, adminsiatrtion was conceived at the center of
adminsitartive activities and this is related to the formal state of the fernch constitutional
framework, which is a centralized and unitary one.
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Centre of administrative activity – core of hierarchical government
Article 20, French Constitution of 1958: «The Government...shall have at its disposal the civil
service...» (‘dispose del’administration’). This article emphasizes the strict conncetion provided by
the constitution between the government and the civil service, because the latter it’s at the
disposal of the government and this gives a measure of the framework in which, even though
some sort of some adminsitartive deconcentration, we are still talking about form of
decntralization that find its core in government. So, decentralization does not prohibit that some
territorial entities are at the disposal of the central government and they need to be considered as
statal entities.
Déconcentration: «Whatever the length of the handle, it is still the same hammer». This quote, it’s
impossible to conceive a system in which the central institutions are able to implement all the
political lines, but need to be coadiuvated by territorial institutions, which still find their legitimacy
in the central state.
DIFFERENT LEVELS OF DECENTRALIZATION
Different kinds of powers we are allocating toward sub-national entities. There are different way to
allocate powers. Legislative power is allocated differently in regional and federal systems for
example, but here we are addressing it’s not the necessity to understand how a constitutional
framework allocates power, but to what extent there’s the allocation of adminsitartive power
toward different sub-national entities. The distinction between unitary and decentralized state
here becomes more blurred, because even in unitary states we may find some sort of
decentralization. There are three different forms of allocating powers:

Deconcentration: Shifting decision-making power to central government officials located outside
the capital. France is the prototype of deconcentration, and it occurs when a strong center allocates
the possibility for sub-national entities to concretely implement certain policies, and also provides
the possibility to implement this policy in its territory. It’s important that within this type, there’s
not the transferral of authority toward the sub-national entities, so the responsibility of
implementing that policy is still at the central level, so there’s not the reation of a new level of
government, but only the shift of the possibility to actually implement that policy. In a
deconcentrated system, it’s impossible to think that those states institutions shall be found only at
the center of the state, and the fact that they are allocated territorially does not change the nature
of those institutions which still reamin governmnetal.

Delegation: Shifting responsibilities to another level,which will ultimately be fully accountable to
the centre. It means that the central isntitutions shift actually responsibility to another level of
governenment, and they shift decision making and responsibility toward a lower level. Their
responsibility is haped according to the principal agent relationship, so the sub-national level
(agent) has a moderate level of authonomy. So the principal (state) still has a strict supervision.

Devolution: Shifting or transferring authority to subnational (regional or local) governments,where
sub-national gov. are granted substantive decision-making authority. This is the wider model,a nd
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it’s used in britain. It’s structured in the way that actually transfers the authority for certain policies
to territorial government. This form of decentralization, since it tarnsfers repsonsibility is sometimes
needs to come along with the necessity to establish elected parliaments or sub-national entities in
the other levels of governemnt, to provide a chain for legitimacy to ensure the correct transferral of
authority. Here it’s different from FoS and FoG because in that case we were talking about
legislative power, while here we are seeing different ways of allocating admisniatrtive power.
DECENTRALIZATION IN FRANCE
To understand what we mean when addressing the first element of hierarchy (decentralization)
also a very decentralzied system can be a unitary state. Governmental institututions in paris are
dispersed in the entire territory, and these are the territorial collectivities. The structure starting
from the lower is: an high number of municipalities (lowest level of Gov) and they are grouped in
departments headed by the general council. Departments are grouped in regions headed by
regional council. At the top of hierarchy we have the president of the republic. All the levels share
respinsibility that is retained at the central level.
• Principle of administrative centralization around a strong and unitary State, even a unitary state
has the necessity to deconcentrate some policies and activities, even for a strictly unitary state.
• Two waves of decentralization of 1982-1983 and 2003
• Today, administrative power as such is preserved in France
• The administration that constituted the state - a ‘constitution administrative’
• Decentralized unitary state
DECENTRALIZATION IN THE UK
A pivotal principle that permeates the UK system is the parliamentary sovereignity.
The government and its functioning rely on a very important assumpations that all th power
resides in the parliament. So there’s the need to have a strict parliamentary control, so it’s the
Westminster parliament which has the authority to allocate power toward sub-national entities
and this is conceived in line with the principle of parliamnetary sovereignity. There’s no
constitutional provision providing for allocation of power, but there’s still a strong form of
evolution but this happens without the dispersal of parliamentary sovereignity. The democratic
rule is always guaranteed.
• Government in Britain is based on the assumption that all power resides in Parliament
• The government is under strict parliamentary control (‘unitary democracy’ - Dicey)
• Local government, constituted in a democratic way, is no exception: Local authorities are
corporate bodies with competences based upon statute, with an elected council
• Devolution only slightly modified the picture, as power is not constitutionally shifted but
conferred by parliamentary legislation
DECENTRALIZATION IN THE US
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For the US, centralization must be read in light of the FoS, a decentralized federal FoS. In the US,
decentralization must be read in light of the limits that both the layers cannot pass the line
between federal entities and member states.
• Hierarchy cannot easily transcend the line between the federalentity and the (member) states
• Subject to limits established by the federal constitution: Amendment X, the US Constitution
«The powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people». This means that there’s the
possibility to allocate adminsitartive responsibility toward lòcal authonomies, but those shall
intervene only in sectors that are connceted to sphere of interest and they are subjected to states’
control.
The federal administartion cannot clash with the adminsiatrtive enforcement of the central state.
DECENTRALIZATION IN GERMANY
Germany is still a federalist form of state, in which the performing of administartive fedetalism is
provided in article 83 and following. The lander are competent to execute statutes, those provided
at the lander and federal levl. They hold a margin of discretion but the implementation must take
place under the control of the governemnt.
• The German concept of administrative federalism is laid down in Articles 83 ff. Grundgesetz
• The Länder are competent to execute statutes – whether statutes at Länder level or federal
statutes (there is a federaloversight) (Articles 83 and 84)
• The administrative organization in Germany replicates its institutional arrangements at all levels
of government
• The Länder have ministries as has the Federation, and all other institutional arrangements can be
found at all levels
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
CENTRAL GOVERNMENTAL INSTITUTIONS
This is about how hierarchy performs and informs central governmemtal instituions. So wwe are
nalyzing adminsitartive structures at the center of their constitutional hierarchy. The minsiterial
model, France is the prototype in which admisniatrtive organizations are entrenched in executives,
while the departmental model rooted in the anglosaxon systems, there’s a more clear separtion
between the political and the adiminstarrive with regard with the tasks they are vested with.
All administrative departments of the state: structure and organization.
FRANCE
This system entails different institutions, state and collectivities.
• Personnes administratives Primaires – the state
• Collectivités territoriales and institutions dérivées that are linked to ‘mother-institutions’
Ø Who seats at the top of the hierarchy? In a semi-presidential FoG, who is by looking at central
national institutions at the top? The president of the republic
PRESIDENT-FRANCE
It’s vested with very significant powers, also comapring to the powers granted in other presidential
FoG in which we have more balance,
• Strong rule-making powers (Article 13(1) French constitution),
• Sign all ordonnances and décrets, mandatory obbligation to sign decree, and he can refuse to
sign decrees not accordeb by the cabinet, and this is important wit regards to how administartion
works, and this is also a sign of his prevalence, especially in a countr where cohabitation exists.
• Important formal powers of nomination and appointment (incl.the Prime Minister), here also it’s
importance lays.
• The administrative power lies in the government as a whole with the President dominating by
means of bearing the power to appoint (and dismiss) the Prime Minister
PRIME MINISTER – FRANCE
It’s the head of the gov and has a itys disposal the civil service of administration.
• Shall direct the actions of the government (Article 21(1)), and to do so he may dispose of the civil
service.
• Administrative matters - power and obligation to ‘ensure the implementation of legislation’
(Article 21(1))
• ‘to make regulations and shall make appointments to civil...posts’ (Article 21(1))
STRUCTURE AT MINISTERIAL LEVEL
Understanding the structure of central institutions shall continue with the structure of minsterial
level.
• Number of ministers within the cabinet is not fixed and portfolios are not prescribed by the
constitution, and it may vary.
• Minsirters govern their respective portfolios by the direction of hierarchical heads,
• Structure at ministerial level is fixed by decree,
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• Ministries sub-divided into Directions Générales, Directions,Sous directions, and finally bureaux
or services.
• Complemented by missions, small units for limited tasks, and all ministries have their own
secrétariat général
• Around the respective minister of each body, a cabinet is established which is an advisory body
to coadiuvate the tasks of each minster (seven to eleven members) which is a highly politicized
advisory body
COUNCILS
How the french system is organzied at the center and how it works, councils are very important.
• Advisory councils for diverse matters of administrative activity(e.g. Conseil national de
l’enseignement supérieur et de larecherche)
• The most important is the Conseil d’État, a body of 300 expertswhich has – as well as its role of
being the highest administrative court, which is a separate issue – important advisory functions for
government and administration. This shows how the signioficant variety of councils are essential to
the functioning of adminsiatrtive activity. The council of state is the most important for two main
raesons because it’s the highest adminsiatrive court that shall decide over adminsiatrive acts, and
in its establsihment we find the separation of admisnitrative and judiciary law in civil law systems
like this, while in common law is allocate toward ordinary courts. Also, the council of state is the
legal advisory council of the executive, so all the draft of legislation that comes from the
government and do not emerge from the parliament, must be approved by the ocuncil of state.
UK
We have both ministerial and non minsitaerial departments (Food).
• Government is constitutionally exercised by the Prime Minister,ministers, and the non-ministerial
department
• The Prime Minister is legally free to shape his or her government, and his or her power of
appointment is seen as central, also with regard with the possibility to act the control can be
exercised by the parliament.
• The actual design of government follows political requirements
• The government as a whole and all its members are accountable to the Parliament
GERMANY
The hierarchical organizational way of the german adminisatrtion is directed primarly at
guaranteeing democracy.
• Administration in a hierarchical manner to guarantee democratic rule
• The ‘chain of legitimacy’ (Legitimationskette) as the dominating metaphor: the sovereign (i.e. the
people) elects the Parliament(the Bundestag at federal level, the Landtage at Länder level)which
elects the head of government (Bundeskanzler orMinisterpräsident respectively) who nominates
the other members of government (ministers) who are the head responsible for their
administrative units down to the most unimportant officer. Responsibility is what gives the
measure of the necessity to guarantee the democratic rule. The possibility to permetrate
resposnibility in each level, safeguards democracy.
• Being part of the chain of legitimacy secures democratic legitimacy of all administrative decisions
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
CIVIL SERVICE
The civil service is the personnel elecetd through formal procedures, different in civil and common
law systems, in oredr to implement certaina nd peculiar public tasks and by impleemnting those it
shall do it in. a eutral and impartial way. This is deeply connected to the necessity to provide
impartial administartive performances.
• Special personnel for the fulfilment of public tasks
• The neutral, impartial, and experienced agent transmitting the emanations of the democratic
decisions of the sovereign to even the remotest corner of administrative decision-making.
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INDEPENDENT ADMINISTRATIVE AUTHORITIES
This have developed within peculiar sector in which certain interests and rights have develoepd, so
these models are very much related to the necessity to regulate some economics activities and
regulate interests and rights inside some peculiar sector. To understand this type of model, we
have also the necessity to regiulate with an high level of technical competence, but also
independently from the executive and legislative powers, but also from the stakeholders within
that sector. When we are referring to this model, indepence goes in different ways, because it’s
independence from the executive, from the legislative power and other private interests.
Independence is also portraid from private parties and stakeholders do acrry out within that
specific sector. Lastly, this bodies did arise responsing specificly to the need of guaranteeing some
public interests that hold a constitutional nature and that are generally related to specific and
peculiar social needs and not only economic needs. Some scholars struggle to find a constitutional
ground for these adminsitartive authorities, and in fact they emerged later on, after the
enactement of constitutions, so constitutions do not provide for them in their original text. This
was an object of debate among scholars about the legitimacy of these peculiar bodies. Many
schoalrs have reconciled the legitimacy of these bodies, by finding their legitimacy in some articles
that defend some specific societal interests.




Public bodies
High level of techincal competence
Independence from the executive power, politics and from private interests
Competence to safeguard public and private interests of a constitutional nature related to economy
and specific social needs.
THE RISE OF A NEW MODEL OF ADMINISTRATIVE GOVERNNACE
This is a recent phenomenon, from the liberalziation of many sectors of the economy, and stems
from the necessity for technical competence in some sector, independently from the political
influence of the legislator and the government.
This public bodies carry out the regulating, monitoring and enforcing functions in a way that is
carried out in a vacuum from other political acts. By providing this model, the necessity was to
remove certain sectors and their regulation from the relationship with political influences, to
guarantee that the implementation of certain policies is impartial and neutral.
Independent administrative authorities have been set up outside the classical structure of
governmental administration for two main reasons:
1. Perform regulatory and supervisory tasks,consisting in the implementation of general legislation
according to the specific conditions of different markets, and monitoring/enforcing the application
of the measures adopted
2. Strengthen the respect and promotion of fundamental rights
There are some common distinctive features: we talk about the common features because within
these models we can recognize a huge variety that distinguishes for certain models, but the
common core is the necessity to provide for an authority overlooking the development of certain
technical and peculiar sector, and to do so in a faster way than what the legislative could do, but
also more independently from the action of the executive. Independence also means that the
action of these authorities is taken away from the possible influences (private and political) can
carry out,
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Expertise: Highly technical fields,subject to frequent developments and thus legislation is slower.
Independence: Impartial action protected from the influence of politics and private(conflicting)
interests.
In the european continent the roots of this phenomenon are to be found in the 80s and 90s. In the
US and in the angloamerican panorama this occurred way before than the european continent.In
the US we find a prototype of this model in the Interstate commerce commission and was provide
to regulate the rail transportation. This was given broad powers and it was the first time that a
body of this kind was given such important powers. After this, in the New Deal there was a
significant development of independent administartive authorities. Those powers were significant
because some scholars conceptualized that this model of adminsitratrion was challenging the
original tripartion (executive, judicial and legislative) of a governemnt function. In the UK we may
find certain roots of this phenomeon in the late 17 century, but also in administrative tribunals.
A wave of creating independent administrative institutions spread progressively over Europe in the
1980s and 1990s.
In the continental europe this model rose later on, with some initial resistance which can be
explained by the constitutional sensitivity of the relationship between the executive, the legislative
and administration. In French art 20, we know that the executive can dispose of the
administartion, so in light of this kind of constitutional provision, it is difficult to provide and give
space to the emergence of this different model of administrative governance. In the french system
scholars closed the circle with apeculiar theory which wanted to reconcile this constitutional
sensibility, and they provided for the legitimacy of this new administrative model, with a theory
that explained that in some peculiar fields there’s an urgent need to protect individuls’ needs. So
french scholars, were giving space for the constitutional provision of art 20, but also to this new
model of adminsiatrtyive governance by saying that even though administration works
independently from the executive, this can be legitimated because in certain sectors the
adminsitration at the disposal of the governemnt, you cannot protect the needs of the citizens
from the exceution of an arbitrary political path.
Social media is a rising one in which independent adminsiatrtive authorities are striving to intercat
with because of the absence of a proper legislative ground, but it gives the sense of how important
can be to develop new legislative and administrative models to face an ever evolving society.
ITALIAN CONTEXT
It rose in the 90s to face the need of a different way of functioning of the administration. In the
very first years of the 90s, was a severe crisis of the political system, in which the active judicial
movement of certain prosecutors was letting emerge a political system of corruption and the
political parties weren’t able to emerge from this political crisis. It was also a deep financial crisis,
capled with a technological development. There was also a direction of privatizing certain sectors
and this led to the need of shaping differently administration.
• Severe crisis of the political system
• Economic and financial disruption
• Rapid technological development
• Process of privatization and market liberalization
• Strengthening of European integration
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ITALIAN CONTEXT – THE 1990s
The response is to be found in the establishment of independent authoprities specifically
regualting certain and peculiar sectors.
• Antitrust Authority (l. no. 287/1990)
• Authority regulating strikes in essential public services (l.no. 146/1990)
• Electric and Gas Authority (l. no. 481/1995)
• Personal Data Protection Authority(l. no. 675/1996)
• Communications Authority (l. no. 249/1997)
INDEPENDENCE
These authorities are legitimized by the necessity to create them to protect interests, values and
principles better than the structure provided in the constitutional text, even though the latter does
not specifically provides for this new model of independent administrative authorities. Even
though, the model of independent authorities poses certain challenges about the original article of
the constitution (art 95- personal responsibility of each minister), this incompatibility reconciles
with the strict necessity to protect certain sectors.
Independent administrative authorities are separated from:
• the political circuit, so from the government and the legislator
• the relevant interests of the economic sectors they are requested to regulate, so every kind of
private stakeholder in a certain economic sector.
They act as third and impartial subjects and the independence concerns the
authorities’organization and functions. They exercise the power that they are vested with a neutral
and impartial way toward the interest of that specific sector.
How can you structure the organization and its functioning of certain bodies vested with this
power and making them independent? Three ways:
1. Organization (FIRST WAY):
Principle of clear separation between administration, political powers and stakeholders. This
makes penetrate the need for independence inside the organizations.
• Appointment procedures are the first way in which this was done. They shall ensure the
necessity for the members of this authorities to act in a way that is not influenced by the political.
• Incompatibilities, meaning that the members of these authorities cannot simultaneously their
functions of members with other private jobs or others.
• Mandate’s length, it’s also used to provide independence because generally the length should be
aligned with the legislator mandate, and usually it’s longer than the mandate of the legislator.
• Renewal limits, so the possibility to be reappointed.
All these elements are capled with some personal requirements, so subjects must be expertise
with technical competencieds and known to have high values, authonomy toward the political and
legislative bodies. It’s the combination of all these elements that shapes the independence of
these authorities.
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2. OPERATIONAL LEVEL (SECOND WAY)
Independence is necessary in order to guarantee full impartiality of the agencies’ action without
influences from the government and from the regulated subjects.
Independence means:
• Organizational autonomy, possibility for the autonomy of these authorities over their resources,
staff, structure and internal functioning of the authority, which means that we can guarantee that
an authority is independent by providing that this authority is independent over its structure.
• Financial autonomy, so the authority hold a proper and own budget, and it is autonomous in how
to manage and spend it, without being under the oversight of the government.
• Accounting autonomy, so they are also autonomous in making their own balance, financial
statement, without the necessity to follow the rules provided for public administration.
THE POWERS EXERCISED:
These bodies do hold important power, despite their independence:
1. Administrative functions and duties, because independent authorities do regulate important
sectors and they regulate the access of certain subjects and actors within the market and they
issue administartive authorization. They do regulate the activities of the actors involved and they
can fix prices, set tariffs within the sector.
2. Quasi-legislative powers, those are very important powers granted to IAA, that carry out
decision making and adjudication power. IAA had the possibility to regulate the way through which
a certain sector is developed and certain policies are technically implemented, but they generally
do not carry totally free quasi legislative power, because they must stay within the framework
provided by the parliament. Howver, sometimes the principles are so wide that they do make it
possible for IAA within certain sectors to carry out very broad quasi legislative powers and also
kinda away from the democratic circuit and this was problematized by some scholars, regarding
the regulation of the rule making function of the IAAs. Here the problem is a dmeocratic deficit
because IAA are neiter popularly elected nor deisgned.
3. Quasi-judicial powers, IAA are vested with important adjudication power in solving problems
among stakeholders of a peculiars sector. They generally provide monetary functions, sometimes
also very significant.
ITALIAN COMEPTITION AUTHORITY(AGCM)
It was one of the first established authorities in gthe 90s to regulate and carry out functions to
ensure that comeptition within the market was fair and protected in many ways.
Established by Law n. 287/1990
• It aims to:
Ø Ensure protection of competition and the market
Ø Repress the possibility for enterprises to engage unfair commercial practices and
misleading advertising for customers.
Ø Sanction unconscionable clauses in contracts between undertakings and consumers
Ø Monitor any potential conflicts of interest concerning persons holding governmental
offices.
Ø Assign a legality rating to undertakings
AGCM is a collegial body. The mandate is of seven years, non-renewable term.
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ITALIAN DATA PROTECTION AUTHORITY
It gained momentum after 1993, when the enactemnet of the privacy code and the GDPR of 2008,
eu regualtion. It’s also a collegial body with a president, vice-president and two members and it’s
elecetd equally by the two chambers of the parliament.
• Established by Law n. 675/1996
• Garante della privacy
• Collegial body (President, Vice-President and two members)
• Two members elected by the Chamber of Deputies and two members elected by the Senate
• Seven years, non-renewable term
• It controls that both public and private issues potentially interfering with the correct processing
of personal data and information. It controls the compliance with the regualtion of the italian data
protection authority.
It’s also repsonsible for handling any report or complaint that an individual may bring wether
he/she thinks that the data protection code was violated (quasi judicial power) and the IDPA also
acrry out the function of the interest that they have in controlling vis a vis the public opinion but
also by advicing the political body within peculiar sector.
MAIN TASKS
Ø Checking that personal data is processed in line with the current law and regulations and, if
there are irregularities, establish the measures necessary
Ø Handle any claims, reports and complaints based on the personal data protection code
Ø Promote dissemination of Deontological Codes and the Code of Good Conduct
Ø Inform Government of any critical situations
Ø Handle the records that have been created based on the personal data protection code
ITALIAN COMMUNICATION SUPERVISORY AUTHORITY (AGCOM)
It’s specifically engaged with the controlling that the safeguard of fair market competition between
operators of the communication sector. It directly safeguards interests of users.
• Established by Law n. 249/1997
• It aims to:
Ø Ensure equitable conditions for fair market competition between operators
Ø Protecting fundamental rights of users
The AGCOM has a Chairman, a Board, a Commission for Infrastructures and Networks, and a
Commission for services and products.
This authority (it gives the sense of different authorities that are compliant with a unitary rationale
and principle but differently shaped), in fact here the Chairman is appointed by Presidential Decree
upon proposal of the Prime Minister and in agreement with the Minister of Economic
Development after a favourable opinion of the competence parliamentary Committes.
Seven years, non-renewable term.
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TASKS ASSIGNED TO THE AGCOM
Are very important in the communciation sector.
Ø It assigns radio and television licenses, establishes feed and contributions within the sector.
Ø It verifies the budgets of operators in the audio-television sector (supervisory function)
Ø It monitors any dominant position (supervisory function)
Ø It verifies observance of indications by the Parliamentary Committee for the aims of and
vigilance of the radio and television services
Ø It expresses, upon request, opinions in proceedings involving communications
Ø It guarantees the application of regulations concerning the so-called par condicio as regard
electoral issues, now there’s a debate that this rule should also be implemented in the internet
and social media sector, so the call for the AGCOM to step away from controlling only the sectors
for the which it was originally established but also to protect the evolving needs of the society.
SANCTION POWERS OF THE AGCOM
IAA generally have a sanction powers.
Ø It can apply administrative sanctions in the case of ascertained violations
Ø It can accept the proposal of “commitments” presented within 30 days of ascertainment of the
illicit behaviour, so long as the commitment also includes the immediate suspension of the
illegitimate conduct
Ø In the case of reiteration of illegitimate behaviour, it may impose interdictory behaviour (e.g.,
from suspended activity for a maximum of 6 months to the repeal of the licence).
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OPENNESS AND TRANSPARENCY
The necessity and requirement for Pas to function in an open and transaprent way, and these are
protected by some principles in the legal framework. These principles spraed globally from the 90s
onwards, both at a anational and a supranational level, combined with the human rights of
administration. This growing international awareness of transparency and the human right of
information gave the possibility for a greater understanding and inclusion of openness and
transparency in the international framework.
It also gives an idea of how administartive acts and procedures have an impact on human rights,
and how the model of administrative transparency was shaped.
In Thailand in 1998, there’s a child which did not pass the enter exam of a state primary school,
and the mum obtained the disclosure of the exam sheet and the grades, and the rector did not
comply. The mum asked the Thailand commission, which stated that the school had a mandatory
obbligation to disclose what the mum asked for. The Thailand supreme court in 2000 held that
under the Thailand Information Act, citizens had the right to request these kind of reports. There
had also been a huge public debate afetr this, and the supreme court stated that this was also a
way to protect the right to receive education without any kind of discrimination.
Under the equal pay act, the British parliament, made it illegal to not equally pay employees
performing the same role. In 2000, an anonymous requester, said that the BCC was paying
differently male and female reporters and asked for the disclosure of the reports about the
salaries. The finding was that there was actually a gender pay gap, with females performing the
same activities of male paid rougly 6500£ less.
This cases gives the idea of how administrative transpaerncy is important toward both
international organizations, but also toward private parties and citinzens’ interests.
In the UK, the Times requested to the UK Commonwealth offices to disclose certain documents,
taken from a meeting at the interparliamentary union between Iran and UK and when the times
obtained this disclosure it found the extent of discrimination toward homosexual people
performed against citizens. This case shows once again the importance of administrative
transparency. These cases also shoe the level of transparency that citizens may ask for, toward
certain bodies. It’s also important to understand the level of accountability of administartion.
The functioning of adminisatrtion is based on the pivotal principle of legality, in light of which
administartion must comply with the principle that the parliament has made and provided for.
However, while the parliament is vested with the legislative power, the executive are vested with
the power of disposing of the adminsitartion to reach the goals defined by the parliament, but
sometimes some sort of marginal discretion is needed.
Administrative scholars advocated for the necessity to provide for a tarnsaprent and open public
adminsiatrtion, by making sure that there are waus thorugh which citizens can participate to
decision-making processes and access to official records.
• Data and Informationhas been poerceived to be very important is the ‘oxygen’ of democracy,
because there’s a file rouge that deeply conncets adminsitration, democratic legitimacy and the
need to ensure it through transparency.
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•To understand why we say that «Information is the oil of the 21st century, and analytics is the
combustion engine». PeterSondergaard (1965). When you undertand the impact of withholding
some informations can have on the general functioning of democracy. When you have clear the
importance of data and information, you have to understand how these apply to the case of public
bodies and authorities.
• How to make public institutions transparent?
OPEN PUBLIC ADMINISTRATION
Open and transparent public administration
RIGHT TO ACCESS: Right to access to public administration documents(transparency), which is the
principle of transparency, and it’s narrower to the principle of openness(this comprises all the
possible forms for citizens to engage in adminstration decision-making).
FORMS OF PUBLIC ADMINISTRATION: Various forms of public participation in public administration
decision-making (openness)
HISTORY OF CODIFICATION OF THE RIGHT OF ACCESS TO INFORMATION
Sweden: Freedom of the Press Act (Tryckfrihetsförordningen), 1766, which was intended to abloish
the possibility for public bodies to and influenced by the enlightened ideas that were targeting the
state practices. This act established for the necessity for public institutions to disclose and give
public access to their reports. (FOPA)
USA: Freedom of Information Act (FOIA), 1966
A “global expansion” in the past decades. Address the explosion at a global level since the
enactement of gthe european convention of human rights, since the which there has been a global
trend on the enactements and acts regarding the necessity to uphold transparency and openness.
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FREEDOM OF INFORMATIONS LAWS
The importance of the freedom of
information laws it’s globally accepted
and it’s not entrenched with the
western culture, but we can find it in
many legal frameworks and there
have been different ways of adopting
status, starting from Sweden and
moving toward a big majority of the
world.
WHY TRANSPARENCY?
The need for transparency and for the need of public administartion to work transparently and
openly is regarding a general requirement for accountability, it’s also a sort of an invitation for
people to participate to decision-making processes, it’s a way to guarantee meritocracy and
equality inside the administration.
OPENNESS AND TRANSPARENCY IN THE SWEDISH LEGAL FRAMEWORK
Transparency
It refers to the horizontal relationship between the state and the individual, where the information
sought is held by a state entity. There’s the necessity to provide for a legislation that is able to:



Guarantee a better informed public
Promote transparency as a societal interest
This is also to guarantee that the power granted to certain bodies it’s not exercised in an arbitrary
way.
Thus, transparency is also fundamental in controlling how power is exercised and for citizen to
have the right information to check wether the realtionships of power occurr in the correct way.
Transparency is a collective interest, and transparency is different from the individual interest of
the protection of personal data.
FOPA
In the swedish legal system this principle of tarnsparency is very important and it’s deeply
entrenched in the constitutional sensibility of the swedish farmework, because it ahs developed in
many years and it’s perceived as a great value as there was the urgence to concretely
constitutiuonalize the principel of transparency. It’s to grant citizen the possibility if the political
bodies are correctly performing the duties they are vested with, to protect the right of freedom of
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exppression and to access public reports. The direct provision provides for a very high importance
and siognificant value within the legal sysetm and the possibility for individuals to uphold their
right. In Italy, instaed, the constituional provision that provide for the right of freedom of
expression does not provide also for the right to request the disclosure of any document that could
undermine this right.
The extensive constitutional regualtion of the swedish context of this principle, first of all public
authorities are aunder the mandatory duty to disclose and grant access to the official recors that
they hold,and this is a very first important point, because compared to the US here this
understanding has a very much broader application
The Swedish principle of public access to official documents is densely regulated both at the
constitutional and ordinary law levels
• Public authorities
• Official document
• Collection and storage of official documents: the Public Access to Information and Secrecy Act,
the Administrative Procedure Act, and the Archives Act
• Exceptions
All bodies defined as public authorities (national,regional or local) are under the obligation to
provide access to official documents
• Parliament, shall disclose their official documents.
• Municipalities
• Local government assemblies (with decision-making powers)
The principle is as broad as it encompasses also these kind of actors:
• The government
• Courts
+ also private bodies carrying out public tasks,
What is an Official document: regardless their form of the act, the important thing for a dicument
to be recomprehended under the cartegory of an official document, documents that are readable
and that are held by a public authority (received or drawn up by the entity).
There is also the statutory provision of a number of exceptions, provided to complete the
framewoek of accessing offcial documents. Even if transparency is very comprehensive, there’s the
need to expressely provide for a precise enumeration of different exceptions from the mandatory
obbligation of disclosing certain documents.
The grounds pf exceptions are the ones where’s a most advanced judicial knowledge, so
Exceptions:
1) security of the Realm or its relations with another sovereign State or international organization,
so with the respect also to the relations that the state is entaling with other states or interantional
institutions.
2) the central fiscal, monetary or currency policy of the Realm
3) the inspection, control or other supervisory activities of a public authority
4) the interest of preventing or prosecuting a crime
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5) the economic interests of the public institutions
6) the protection of the personal or economic circumstances of individuals
7) the preservation of animal or plant species
FOIA
The freedom of information act of 1996 in the US it’s different from the fopa, and it developed
later on in comparison to the model developed in Sweden, which was then transplanted in other
nordic countries.
THREE-PART SYSTEM
This shows that there are different ways for an administartion to function in a tarnsaprent way.
It’s structured on three layers. The first two are directed to the federal administration, which is
obliged to directly disclose certain documents, once these documents are produced.
1) directs agencies to publish substantive and procedural rules, along with certain other important
government materials, in the Federal Register.
2) agencies must electronically disclose a separate set of information that consists of, among other
things, final adjudicative opinions and certain “frequently requested”records.
These first two layers do not require any kind of action from the citizen because it’s an obbligation
for these adminsitration once these documents are produced, but they do require a direct
partcipation of the agencies which must directly disclose some documents.
3) requires agencies to disclose all covered records not made available pursuant to the afore
mentioned affirmative disclosure provisions to individuals, corporations, and others upon request
and when there’s this request, upon an active partcipation from certain subjects, then the federal
agencies are required to disclose these informations. This third layer require governmental
agencies to disclose some records upon the request of the citizens. They have this legal and
mandatory obbliogation, unless either exemptions or exclusions apply (follow below). When the
request is not immediately complied by the agency, then the latter is obliged to explain the
grounds on which the disclosure is not proceed and to make a direct and precise
exemptions/exclusion that the agency is relying on. Of course, this is the layer on which the nost
significant cases are develped, and that made the court more active in shaping the legal system
with regarding this scope of application.
FOIA’S GENERAL SCOPE OF APPLICATION
There’s a narrower appliucation of the foia, because there’s not a constituional provision behind it
such as in the swedish case. The general scope of application apply to all the three layers, but here
we’ll focus on the third one.
• Agency,
• Agency records,
• Any person
AGENCY:
• Agency – an agency, under the foia is “each authority of the Government of the United States,
whether or not it is within or subject to review by another agency.”
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The agencies under the foia may be «any executive department, military department, Government
corporation, Government controlled corporation, or other establishment in the executive branch of
the Government(including the Executive Office of the President (EOP), or any independent
regulatory agency»
NO: Congress, the federal courts, or territorial governments
By looking at this first element, there are some major differences that allows us to understand that
the fopa has a very much broader scope than the foia, because there are many bodies which are
not related to any of the three layers of the foia, so they are not obliged to disclose documents
neither to comply with the requests of the citizens. So, there’s the impossibility to trascend and to
trapass the sharp line that there’s between federal governments and territorial governments,
because the foia applies only to federal government, and not to territorial ones which are ionly
subjected to state legislation.
The rationale behind this is that in federalis form of states you need always to remember that
there’s a strong “separation” between the federal gov and the territorial states.
Instead, the fopa is directed also to the swedish parliament, the court and all the layers of that
legal framework, so there’s a broader subjective scope.
AGENCY RECORDS:
Under the foia, to understand what is an agency record, we must refer to the case law because we
do not have a statutory definition. So, with regard to the objective scope of the foia, a leading case
is that of tax analysts.
• No statutory definition
• Case law: the Court held that materials qualify as agency records if an agency
(1) created or obtained the materials and
(2) was «in control of the requested materials at the time the FOIA request [was] made»
(U.S. Supreme Court, Department of Justice (DOJ) v. TaxAnalysts 1989), here the supreme
court stated that either the report may be qualified as an agency record under the foia if
the federal agency included in the statutory definition has created or obtained that material
and if that agency was in control of the requested mtaerial at the time of the request.
Control of records?: the “Burka test”. To understand if an agency is in control we must refer to the
burka test, developed by case law in the district of columbia. It’s constructed in 4 different
elements: differently from the other systems in which we only wanted to understand if the
document was under the agency, here we want to find out also if a document is in control of the
agency. First, Either there’s an intent to retain the control over the requested material, second to
understand if the agency employees have actually read and used the document for its functioning
purposes, third if the agency had the concrete possibility to use and dispose of the requested
material, and fourthly to understand the degree of integration that the document had in the
agency record file.
It's important to understand the extent of the subjective and objective scope of the foia, in
comparison with that of the fopa(the first is narrower).
ANY PERSON:
The last element is who is the actor that is provided with the possibility to request official
documents to be disclosed, in relation to the third layer.
Any person, individuals, corporation, association may request the disclosure of official documents.
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• A «person» is defined as «an individual, partnership,corporation, association, or public or private
organization other than an agency»
• corporations, as well as state and foreign governments and this is a peculiar element of the foia.
REQUIREMENTS FOR THE FOIA REQUEST
The request to be made is a request that must be as precise as to reasonably decsribe the records
that that request is seeking, because agencies have thirty working days to comply with the request
and wether there’s a request is not as precise as the seeked documents, then the agency can ask
for ten additional working days, or may engage with a dialogical relationship with the applicant to
better frame which is the document that this person is asking. This is of course made to help
agencies to comply with the rquests on time.
• request must «reasonably describe» the records sought.
• must comply with the agency’s «published rules stating thetime, place, fees (if any), and
procedures to be followed»
RESPONSE – TIMEFRAME
• To determine whether to respond to a document request within 20 working days
• The agency may also request an additional 10 working days for «unusual circumstances», a need
to examine a large volume of documents which are demanded in a single request
• If the request cannot be processed within 30 days, then the agency must notify the requestor
either to limit the scope ofthe request or arrange an alternative timeframe
EXEMPTIONS OF THE FOIA IN THE US CONTEXT
We’ll see that tehre’s a general scope of the foia, but that is statutorily constructed with a
narrower scope and that it makes it easy for federal agencies to avoid comopliance with some
requests by referring to these exemptions or exclusions.
It is possible for an agency to refuse disclosure if it’s the case of:
1) Information properly classified for national defense or foreign policy purposes as secret under
criteria established by an executive order. Here, there was a huge development of case law, and a
case of 2013 was “judicial watch vs the department of justice” , judicial watch was seeking for
some pictures of the condition of the body of osama bin laden to see if it was treated right with
regard to human rights, but the department of justice said that they were not going to disclose
these pictures not because they feared the possible consequences but because of this first
exemption. So, the first exemption has a very wide scope of application, and this was shaped in
many relevant cases of law. Also, the case of the department of energy refused to disclose
information about employees, so alos here there’s a very wide scope of application.
2) Information relating solely to agency internal personnel rules and practices. This is an exemption
that was not very much used, but there were some important cases such as in th 2011 when there
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was a request about information of the navy test. What is important is that the US Supreme court
is that this exemption must be interpreted narrowly.
3) Data specifically exempted from disclosure by a statute other than FOIA, so the federal agency
may refer to other statutes in oredr not to disclose certain information.
4) Trade secrets and commercial or financial information obtained from a person that is privileged
or confidential, and here again it’s a very much mitigated information.
5) Inter or intra-agency memoranda or letters that would not be available by law except to an
agency in litigation
6) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted
invasion of personal privacy, here again it has the refernce to the impossibility to disclose some
documemts, otherwise we would have the disclosure of personal and medical information.
7) Certain kinds of records compiled for law enforcement purposes
8) Certain information relating to the regulation of financial institutions
9) Geological and geophysical information and data
EXCLUSIONS
1) Exclusion (c)(1): The first exclusion covers records protected by Exemption 7(A) (i.e., records
whose disclosure «could reasonably be expected to interfere with enforcement proceedings»),
2) Exclusion (c)(2): The second exclusion directly applies to records that are «maintained by a
criminal law enforcement agency under an informant’s name or personal identifier»
3) Exclusion (c)(3): The FOIA’s third exclusion protects a subset of FBI records concerning «foreign
intelligence»,«counter intelligence», or «international terrorism»
EXCLUSIONS VS EXEMPTIONS
The difference between exemptions and exclusions is that when an agency is referring to
exemptions the agency is under the direct obbliagtion to make specific reference to the
exemptions and that it is going to refuse the disclosure because of that exemptions. So the agency
will not comply and it will say it. When it’s the case of an exclusion, the agency can withold the
records, without commenting to the refused disclosure.
• FOIA’s exclusions allow agencies to “withhold documents without comment”
• FOIA’s exclusions- designed to allow agencies to better avoid disclosure of the narrow categories
of records to which they apply
• FOIA exemptions - when an agency invokes a FOIA exemption in response to a request for
records, it is required to “reveal the fact of and grounds for any withholdings” to the requester
MAIN DIFFERENCES
The first difference is what we understand as an official document. The first difference is in fact
regarding that in the swedish context it’s not important how and when the agency
received/created/modified that document, while in the us context it’s important that the agency
created or obtained that document and that the agency has control over it at the time of the
rquest. Thus, in the swedish context we have a very wider consideration of what is perceived to be
an official document in this perspective, because there are less requirements in defining when an
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agency is considered to be holding an official document. Thus, this gives once again the sense of
how much broader is the scope of application of the fopa, and also how much more here the
principle of openness and transparency is penetrated into the context, while in the us context this
principle is less covered and protected. This is also clear if we look at how the exemptions are
shaped and defined, beacsue all that exemptions of the us context shed a shadow on the crystal
protection of transapency, and leave us with the doubt that there’s less protection.
The second difference is how it is possible to file a request: because in swedish law it is irrelevant
how a request is made, while this is a relevant element in the foia, because only requests that has
some specific characteristics make the legal right to receive a response.
Then, under the fopa of the swedish context, informal communication between agency are not
accepted as official documents, while they are perceived as official documents if they are final. This
is regarding intra-agencies records and communication.
Lastly, the scope of application: the swedish context has a very wide scope of application which
also inlcudes institutions at the regional and local level, the parliament and the court, the foia does
not apply to all these bodies because it also cannot trascend the sharp line between the federal
governemnt and the states.
All these differences are related to one main concept, which is the application of the principle of
transparency in the two different contexts of Sweden and the US. The ultimate need of protecting
and enhancing transparency is of course the same in these two countries, but the application is
different because of the different constitutional framework and of course because of the different
general context of application. In Sweden, the protection of this principle is much more rooted in
the past trajectories and in the legal framework which has been developed tgroughout time, while
in the US the federal system makes it necessary for an application of the transparency of
administrative agencies which is respectant of the sharp separation between the federal state and
the single states. Thus, these differences must be interpreted in the light of the presence of
different needs, values and caharcteristics of the contexts, which also imply a different
legitimization and shaping of openness and transparency.
OPENNESS AND TRANSPARENCY AS HUMAN RIGHTS
There’s been a global trend of adopting oppenness and transparency in amny contexts:
Following the fopa and the foia, a progerssive adoption of provision regarding openness and
transprency and the access to official documents. This gradual adoption at a domestic level was
also moved by a global emergence of the need to provide openness and transparency and to do it
a supranational but also regional level. And this was also very important in trying to develop
openness and transparency in the perspective of protecting human rights.
The UN Convention – Article 19, the first international document that explicitly provide for the
right of openness and transparency.
ICCPR – Article 19(2)
Tromsø Convention
ECHR – Article 10
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ADMINISTRATIVE LAW BEYOND THE STATE
In many elements, we saw that there’s a deep relationship between how administartive law is
shaped and yhe context within the which adminsiatrtive principles are developed, within a
particular national context. Administrative law is traditionally conceived and theorized as
something deeply connected with the different contexts and historical development within a
peculiar national state and we can link it with the understanding and the development of
constitutionalism and the main characteristics of a legal context. AL is also related with the
functioning of different FoG and different FoS.
When we think about the contingency of AL wityhin a particular legal framework, we assessed
many legal institutions that have deeply been entrenched.
Also, transparency and the constitutional understanding of this principle is deeply entrenched
within the swedish context,a nd then it was legally transplanted in different context, but it had a
diverse application in these contexts, which did not share the same level of penetration of the
principle inside the social framework.
• Traditional paradigm: administrative law as a national enclave
• Administrative systems and administrative law developed within a nation State
• Which are the challenges that new phenomena bring to the traditional paradigm? The challenges
that new phenomena bring are several, and we saw the different trajectories of privatization,
making the case for the emergence of a new model of administartive governance, also the
different trends of decentralization up and downwards, such as the functions traditionally
allocated to the states which have been allocated toward lower forms of government. Also the
upward integration challenged the traditional paradigm. Also, the need to provide for reforms was
a frequent trend in the comparative panorama starting from the 1990s, such as the italian reform
aimed at providing administrative simplification.
TWO DIFFERENT PARADIGMS
To get a deeper understanding, transparency and openness are a good starting point, because
understanding how these principles are shaped in different contexts give us a better understanding
of wether it’s possible a paradygm, tarditional and contingent of a certain conetxt, and tarnsplant
it ina. New and different system, which has different political and cinstitutional features.
Sometimes, this transolanting is also made for court’s reasons. Transparency is also important to
have a concerete example of a general understanding of the phenomena.
It's true that there’s a way to claim that the lines between different administartive systems are
becoming more blurred and that there’s a convergence between different principles of different
contexts, but still there are some different systems which have specific features, because some
adminsiatrtive systems are entrenched within peculiar national contexts, however this can be
acceopted also in the light of gthe need to uncouple adminsiatrtive law from the state and of the
emergent trajectory of convergence among principles of different national contexts.
1) Administrative law as a province of the State: this gives the sense of the importance of tyhe context
for the development of adminsiatrtive law, its functioning, structure and performing its functions
and tells us the degree of entrenchment of adminsiatrtive law isnide a peculiar national context.
a. • Administrative law is a product of the State
b. • Administrative law is a product only of theState
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2) Uncoupling administrative law from the State: starting from the first paradygm, there’s the
emergence of new challenges which want to reshape the understanding of administartive law in
light of globalization, convergence of different principles, so a general trend of innovation of
adminsitrative law that goes beyond the legal borders of the peculiar context inside the which a
specific administartive principle(s) have been become shared patrimony of the adminsitrative law
context.
a. Challenges to thet raditional paradigm:
i. • Legal transplants
ii. • Convergencies
iii. • International andsupranational level
EXTERNAL RELEVANCE OF DOMESTIC PRINCIPLES OF ADMINISTRATIVE LAW
The external relevance of domestic principels of AL, so the extent to the which AL emerges over
the borders of the state, these three elements are very important:
1. If the general principles of law have relevance beyond the national dimension, as principles of
transnational public law, so wether they acquire validity as transnational principles of
administrative law.
2. If those principles are legally relevant for international and supranational authorities
3. If those principles are legally relevant for national systems
GENERAL PRINCIPLES
These are principles are commonly recognized by civilized nations.
• General principles used by International Tribunals in AL contexts and matters to solve disputes
that may rise in front of them and this theory says that staarting from the existence of these
common shared principles generally recognized, and the fact that these principles are common
and their status of inyternational source of law, these principles compose the body of AL at the
international level and that enforces the functioning of International Organizations and they may
also have significant impact on the functioning of national authorities.
• Art. 38 ICJ Statute: «general principles of law recognized by civilized nations»
They are:
1. Standards for International and Supranational Bodies
2. Global Standards for National Authorities
So they are reference for the functioning of International institutions but they may also touch the
way of function ing of national authorities, since we have there are raesons to claim for the
emergence of a global adminsitartive law and so to underline this peculiar function of becoming a
global standard and to shape the functioning of national authorities.
PROPORTIONALITY
This principle is n ow commonly shared amomng national legal systems, such as that it has
acquired the standing of a general principle of law recognized by civilized nations at an
international level. This principle says that administartion is bound to exercise its function in a
proportionate way to the legal objectives pursued by the legislation and the political direction of
the executive.
• The principle has emerged in German legal culture between the end of the eighteenth century
and the beginning of the nineteenth century
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• «[...] should not shoot at sparrows with cannons»(Fleiner 1928, 404)
• Measures are lawful if they are appropriate and necessary in meeting the objectives legitimately
pursued by the legislation
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