Presentation by Wolfgang Rusch, SIGMA expert, on "Good administration through modernised administrative procedures", Pristina 3 February 2015.

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Good Administration
through
Modernised Administrative Procedures
Novelties in the new Draft Law on General
Administrative Procedures prepared by
the Ministry of Public Administration with
support of the EU through SIGMA
Presentation by Wolfgang Rusch at the Public Consultation Conference
Pristina, 3 February 2015
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INTRODUCTION
• SIGMA support to IPA countries’ efforts
of modernising the system of
administrative procedures
• Why a new Law on General
Administrative Procedures?
• What are the improvements of the new
draft legislation for Kosovo*?
*This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ
Opinion on the Kosovo declaration of independence.
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SIGMA support to IPA countries
I. SIGMA’s mandate
1. Basics:
• SIGMA is a joint initiative of the (EU) and (OECD), principally financed by
the EU.
• SIGMA was launched in 1992 to support Central European countries in
their public administration reforms; support has subsequently been
extended to other countries, including all ten 2004 and two 2007 EU
entrants.
• In 2015 working in IPA* countries: Albania, Bosnia and Herzegovina,
Kosovo, Montenegro, the former Yugoslav Republic of Macedonia, Turkey
and Serbia.
• As a Division of the OECD’s Directorate for Public Governance and
Territorial Development, SIGMA is able to draw on the Directorate's
expertise and on its networks in OECD member countries.
* IPA = Instrument for Pre-Accession Assistance; since June 2008 working also under the European
Neighbourhood and Partnership Instrument (ENPI)
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I. SIGMA’s mandate (continuation)
2. Four areas of activities:
• Administrative Law and Justice, Civil
Service, Public Integrity
• Public Financial Management, External
Audit
• Public Procurement
• Policy-making and Co-ordination
Capacities

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II. SIGMA’s recent support to drafting a new Law on General
Administrative Procedures (LGAP)
 Croatia: LGAP adopted by Parliament; in force since 1 January 2010
 Albania: First draft LGAP finalised in March 2011; currently in
the parliamentary procedure; adoption expected in 2015
 Serbia: First draft LGAP submitted to the Government in February
2012; currently being redrafted; adoption by Government
expected in 2015
 Montenegro: Drafting process started in 2011; currently in the parliamentary
procedure; adoption expected in 2015
 Macedonia: Drafting process started in July 2012; currently in the
parliamentary procedure; adoption expected in 2015
 Kosovo: Drafting process started in September 2012; adoption by
Parliament expected in 2015
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WHY A NEW LGAP?
I. First phase of reforms (basically in
1995 - 2005)
1. Albania:new law in 1999
2. Other countries: (marginal) changes
of the former Yugoslav Law
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II. Reasons for particular reluctance
in former Yugoslav countries to
draft a new LGAP
1. Long tradition: Austrian Law of 1925, adapted in
pre-communist Yugoslavia (1930) and adjusted
twice in 1956 and 1986
2. Good quality: In 1956, the Yugoslav Law
belonged to the most modern European
legislation in this field.
3. High estimation: Fifty years later it is still
respected by the legal community as a model of
a very good piece of legislation.
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WHY A NEW LGAP? (continuation)
III. After the first phase of reforms:
Still major shortcomings of the
status of legislation
1. Scope of the law is too narrow.
• Confined to the unilateral administrative act
• No real acts
• No administrative contracts
• No regulation related to the delivery of public
services

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III. Major shortcomings of the status of
legislation after the first phase of
reforms (continuation)
2. Complicated, formalistic, lengthy procedures
(patterned on court procedures).
3. The principle of citizen orientation is hardly
reflected (e.g. participation of citizens in decision
making process is insufficient).
4. Novelties of the EU Services Directive (EU
Directive 2006/123/EC) not included:
• IT based communication (e-administration)
• Point of single contact approach
• Administrative silence
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III. Major shortcomings of the status of
legislation after the first phase of reforms
(continuation)
5. The system of administrative legal remedies
is incomplete, ineffective and inefficient.
6. The principles of good law making are not
adequately followed. Major shortcomings:
– Overregulation of technicalities – casuistic
approach
– Repeated mending of the old text during first
phase of reforms generated an imperfect and
illegible patchwork
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WHAT ARE THE IMPROVEMENTS OF THE
NEW DRAFT LAW ON GENERAL
ADMINISTRATIVE PROCEDURES FOR
KOSOVO?
I. Wider scope ensuring effective legal
protection against all forms of administrative
actions
Basic provisions:
Article 2 “Scope of the Law”
Article 13 ”The right to legal remedies”
Article 53 “Administrative contract and its admissibility
Article 62 “Real Act”
Article 63 “Provision of public services of general interest”
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WHAT ARE THE IMPROVEMENTS?
II. Efficient, simple, speedy procedures; less formalities
Basic provisions:
Article 10 “Principle of efficiency of the administrative
proceeding”
Article 26 “Delegation of decision making competence”
Article 33 “Point of single contact”
Article 34 “Administrative assistance”
Article 66 “Form and content of the request”
Article 68 “Wrongfully submitted request”
Article 109“Forms of notification”
Article 131“Procedure of reviewing the appeal by the
competent public organ”
III. Transposition of the principle of proportionality
Basic provision:
Article 5 “Principle of proportionality”

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WHAT ARE THE IMPROVEMENTS?
IV. Legal limits of discretionary decisions
Basic provisions:
Article 4 “Principle of lawfulness”,
paragraphs 3 and 4 dealing with discretion
Article 45 “Unlawfulness of an administrative act”
V. Citizen’s right to receive advice and support
from the administrative authority
Basic provision:
Article 4 “Principle of lawfulness”, paragraphs 3 and 4
VI. Transparency of the administrative decision
making process
Basic provision:
Article 9 “Principle of open administration”
Article 85 “Right of the party to inspect files and receive
information”
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VII. Legal protection against administrative
silence
Basic provisions:
Article 93 “Fictitious administrative act”,
paragraphs 3 and 4 dealing with discretion
Article 133 “Appeal against administrative silence
VIII. Regulatory framework for a point of single
contact approach
Basic provision:
Article 33 “Point of single contact”
IX. Possibility of IT based communication
between administration and citizen
Relevant articles:
33, 39, 40, 54, 66, 69, 75, 85, 99, 109, 117, 118, 121, 159
WHAT ARE THE IMPROVEMENTS?
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WHAT ARE THE IMPROVEMENTS?
X. Impartiality of public officials
Basic provision:
Article 129 “Cases of exclusion from proceeding”
XI. Ex officio investigation of facts
Basic provision:
Article 79 “Ex-officio investigation”
XII. Comprehensible and detailed statement
of grounds obligatory for written
administrative acts
Basic provision:
Article 41 “Reasoning of a written administrative act“
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WHAT ARE THE IMPROVEMENTS?
XIII.Legal definition of the administrative
act clarifying the difference between
material and procedural administrative
decisions
Basic provision:
Article 37 “Definition of an administrative act”

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SUPPLEMENTARY NOTES ON THE
METHODOLOGY OF THE DRAFTING PROCESS
Conclusion
Establishing a better system of
administrative procedures
– is a societal process
– requires a convinced and convincing
avant-garde within the country
– is a very complex task
– and TAKES TIME
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Thank you for your
attention and patience!