Volume 22, Number 2, November 2024 ISSN 2591-2240 (printed ed.) ISSN 2591-2259 (on-line ed.) Central European Public Administration Review Central European Public Administration Review Volume 22, Issue 2, 2024 Slovenian title: Srednjeevropska revija za javno upravo Editor-in-chief: Prof. Maja Klun (University of Ljubljana, Faculty of Public Administration, Slovenia) Guest editors: Prof. Polonca Kovač (University of Ljubljana, Faculty of Public Administration, Slovenia), Prof. Krisztina F. Rozsnyai (University ELTE Budapest, Faculty of Law, Hungary) Technical editor: Nataša Svržnjak Layout designer: Dean Zagorac Cover designer: Branka Smodiš Translation and language proofreading of selected parts: Nina Barlič Field/Section editors: – Prof. Gerhard Hammerschmid (Hertie School of Governance, Germany) – Prof. Anamarija Musa (University of Zagreb, Faculty of Law, Croatia) – Assoc. Prof. Mitja Dečman(University of Ljubljana, Faculty of Public Administration, Slovenia) – Prof. Anna Simonati (University of Trento, Faculty of Law, Italy) – Prof. Benedikt Speer (Berlin School of Economics and Law, Germany) – Assist. Prof. Iztok Rakar (University of Ljubljana, Faculty of Public Administration, Slovenia) – Assist. Prof. Nicolae Urs (Babeş-Bolyai University, Faculty of Political, Administrative and Communication Sciences, Romania) – Prof. Michiel S. deVries (Radboud University, The Netherlands) Advisory board: – Prof. Armenia Androniceanu (Bucharest University of Economic Studies, Faculty of Admi- nistration and Public Management, Romania) – Prof. Jean Bernard Auby (Sciences PO Law School, France) – Prof. Helena Blažić Pečarić (University of Rijeka, Faculty of Economics, Croatia) – Prof. Calin E. Hintea (Babeş-Bolyai University, Faculty of Political, Administrative and Com- munication Sciences, Romania) – Prof. Nevenka Hrovatin (University of Ljubljana, Faculty of Economics, Slovenia) – Prof. Ivan Koprić (University of Zagreb, Faculty of Law, Croatia) – Prof. A. T. Marseille (University of Groningen, Faculty of Law, The Netherlands) – Francesco Molinari (University of Rijeka, Department of Informatics, Croatia) – Prof. Juraj Nemec (Masaryk University Brno, Faculty of Economics and Administration, The Czech Republic) – Prof. Alka Obadić (University of Zagreb, Faculty of Economics and Business, Croatia) – Prof. Elena D'Orlando (Universita degli studi di Udine, Department of Legal Sciences, Italy) – Prof. Jurica Pavičić (University of Zagreb, Faculty of Economics and Business, Croatia) – Mag. Thomas Prorok (KDZ – Centre for Public Administration Research, Vienna, Austria) – Dr. Andrea Purpura (Universita Cattolica dei Sacro Cuore, Faculty of Economics and Law, Italy) – Prof. Iveta Reinholde (University of Latvia, Faculty of Social Sciences, Latvia) – Assoc. Prof. Tereza Rogić Lugarić (University of Zagreb, Faculty of Law, Croatia) – Prof. Emilia Sičákova Beblava (Comenius University of Bratislava, Faculty of Social and Economic Sciences, Slovakia) – Assoc. Prof. David Špaček (Masaryk University Brno, Faculty of Economics and Administration, The Czech Republic) – Prof. Koen Verhoest (University of Antwerpen, Faculty of Social Sciences, Belgium) – Prof. Jann Werner (Potsdam University, Faculty for Economics and Social Sciences, Germany) – Dr. Marique Yseult M. (University of Essex, School of Law, United Kingdom) The journal is accessible online at: https://journals.uni-lj.si/cepar Publication is free of charge. Published by: Založba Univerze v Ljubljani/University of Ljubljana Press Issued by: Fakulteta za upravo Univerze v Ljubljani/Faculty of Public Administration, University of Ljubljan For the publisher: Gregor Majdič, Rector of the University of Ljubljana For the issuer: Mirko Pečarič, Dean of the Faculty of Public Administration Print run: 50 copies Printed by: Demat, d. o. o. ISSN 2591-2240 (print), 2591-2259 (online) DOI: https://doi.org/10.17573 This journal is published twice a year. Address: University of Ljubljana, Faculty of Public Administration, Gosarjeva ulica 5, 1000 Ljubljana, Slovenia Tel.: +386 (0)1 580 55 82 E-mail: cepar@fu.uni-lj.si To delo je ponujeno pod licenco Creative Commons Priznanje avtorstva-Deljenje pod enakimi pogoji 4.0 Mednarodna licenca (izjema so fotografije). / This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License (except photographs). Basic Information & Indexing Central European Public Administration Review is a scientific peer-reviewed journal that pub- lishes original articles, devoted to the development and analysis of public administration and governance. We are mostly interested in articles on integrative and multidisciplinary research on the field that includes related scientific disciplines, such as law, economics and manage- ment as well as political, organisational and information sciences. The journal’s goal is to cover mostly central European space, in not only geographical but mainly contextual sense by sup- porting administrative reforms in accordance with European principles. Central European Public Administration Review was launched in 2018 by Faculty of Public Ad- ministration, University of Ljubljana. Its first title “Administration”, launched in 2003, was later changed to “International Public Administration Review”. 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We would like to thank the following organisations for their support: Contents Regular Section Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský 9 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas 1.01 Original scientific article Csilla Paksi-Petró 35 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? 1.01 Original scientific article Jana Janderová 55 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic 1.01 Original scientific article Special Section “Digitalisation and Legal Remedies in Administrative Procedures” Guest Editors: Prof. Dr. Polonca Kovač, University of Ljubljana, Faculty of Public Administration – Slovenia Prof. Dr. Krisztina F. Rozsnyai, University ELTE Budapest, Faculty of Law – Hungary Grega Rudolf, Polonca Kovač 83 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications 1.01 Original scientific article Jowanka Jakubek-Lalik 109 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice 1.01 Original scientific article P A R T I P A R T II Michael Gøtze 129 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law 1.01 Original scientific article Sára Hrubešová 147 Shaping Administrative Activity (Legal Forms): A Legislative Approach 1.01 Original scientific article Tomáš Svoboda 165 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience 1.01 Original scientific article Krisztina F. Rozsnyai 185 Regulating the Competence of Administrative Justice and the Public-Private Law Divide 1.01 Original scientific article István Hoffman 207 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary 1.01 Original scientific article Polonca Kovač 225 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation 1.01 Original scientific article 253 POVZETKI (SUMMARIES IN SLOVENIAN LANGUAGE) P A R T II P A R T I Regular Section 9 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ DOI: 10.17573/cepar.2024.2.01 1.01 Original scientific article One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas Artsiom Klunin Comenius University in Bratislava, Faculty of Social and Economic Sciences, Slovakia artsiom.klunin@fses.uniba.sk https://orcid.org/0000-0002-3155-5311 Matúš Sloboda Comenius University in Bratislava, Faculty of Social and Economic Sciences, Slovakia matus.sloboda@uniba.sk https://orcid.org/0000-0002-3760-2385 Emília Sičáková-Beblavá Comenius University in Bratislava, Faculty of Social and Economic Sciences, Slovakia emilia.beblava@fses.uniba.sk https://orcid.org/0000-0001-8159-8080 Patrik Pavlovský Comenius University in Bratislava, Faculty of Social and Economic Sciences, Slovakia patrik.pavlovsky@fses.uniba.sk https://orcid.org/0000-0002-2058-503X Received: 23. 2. 2024 Revised: 25. 6. 2024 Accepted: 23. 7. 2024 Published: 27. 11. 2024 ABSTRACT The purpose of this paper is to investigate how public administration can reduce cigarette butt littering in public areas. Cigarette butt littering is a problem for every local government unit; however, policy solutions are either very difficult to implement or expensive. This paper demonstrates the potential of behavioural science, namely nudges employing gamifica- tion, salience, and priming. Design/Methodology/Approach: In collaboration with local public ad- ministration, two field quasi-experiments were conducted to explore the effectiveness of low-complexity behavioural measures to tackle cigarette butt littering in heterogeneous public spaces. The study tested both the effectiveness of a single behavioural measure and the follow-up effect of a combination of low-complexity measures. In the first quasi-experiment, Klunin, A., Sloboda, M., Sičáková-Beblavá, E., Pavlovský, P. (2024). One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas. Central European Public Administration Review, 22(2), pp. 9–34 Central European Public Administration Review, Vol. 22, No. 2/202410 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský a standalone intervention (priming stickers) and the follow-up combina- tion of measures (priming stickers with gamified ballot bins) were test- ed. In the second quasi-experiment, a standalone salience nudge (crime scene) was first implemented, followed by a combination of the initial (crime scene) and follow-up salience (toxicity) nudges to nudge smokers from cigarette butt littering in public space. Both quasi-experiments used a before-and-after design. Findings: The results suggest that a single behavioural intervention may be sufficient to achieve the desired behavioural change, and reinforcing its effects within a relatively short time period with a follow-up interven- tion may not deliver any additional statistically significant effects. Originality/Value: This research contributes to public administration re- search, specifically by applying behavioural insights and experimental ap- proaches to studying public policies. Although this approach is gaining popularity, there remains a lack of evidence from field (quasi-)experimen- tal studies on the effects of behavioural interventions in reducing pollu- tion in public spaces. Keywords: littering, cigarette butts, nudge, gamification, priming, salience JEL: Q50, R11, D91 1 Introduction Littering is an important public policy issue, especially when it contributes sig- nificantly to environmental problems. Approximately 1.2 million tons of ciga- rette butts are released into the environment every year (Kadir and Sarani, 2015), and this waste pollutes air, water, and soil (Ghasemi et al., 2022). Ciga- rettes contain 150 highly toxic compounds that could initiate carcinogenesis or trigger other harmful changes in human genes (Araújo and Costa, 2019). These negative impacts of cigarette butt littering make a strong case for inter- ventions aimed at changing the behavior of smokers. Strengthening sustain- able behavior among smokers requires not only a profound understanding of smoking and cigarette butt littering habits, but also the implementation of interventions aimed at decreasing cigarette butt littering. Insights from psychology and behavioral science can complement more traditional approaches to regulating human behavior (e.g., restrictions and sanctions). According to Barak-Corren and Kariv-Teitelbaum (2021), under- standing how individuals make decisions and what influences their behavior is key to effective change. Thus, behavioral science can be applied in public administration to understand and change existing littering patterns. Smok- ing is a highly habitual behavior (Rath et al., 2012) and a social activity (Huang et al., 2019). Smokers often light cigarettes unintentionally (Jager, 2003), as is the decision to dispose of cigarette butts (Dehdari, 2020). In this context, restrictions and penalties may not always be effective measures, and behav- ioral interventions could be considered to complement traditional measures. The literature identifies several drivers for littering cigarette butts, such as Central European Public Administration Review, Vol. 22, No. 2/2024 11 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas a lack of social pressure and a lack of knowledge about the negative social consequences of smoking (Wallace-Williams et al., 2023) and its negative eco- logical impacts (Webler and Jakubowski, 2022), a low availability of trash bins (Schultz et al., 2013) or highly littered areas, which reduce the motivation to dispose of cigarette butts in the trash bin (Kaur and Singh, 2022). In this ar- ticle, we report two field quasi-experiments that aim at potential drivers for littering using gamification, salience, and priming. Thus, this article tests the practical feasibility of behavioral interventions as a complement to standard policy solutions. We contribute to the Public Administration literature and to the literature on pro-social and pro-environmental behavior by utilizing in- sights from behavioral science to reduce cigarette littering in public areas. Despite the extensive theoretical framework of pro-environmental nudges, their field testing on heterogeneous samples and in public spaces (e.g., parks) is limited. This is mostly because various challenges arise when measuring the samples in real-world settings. The research on littering prevention with an application of behavioral interventions is usually conducted on homogene- ous samples of individuals (e.g., students on campuses). Moreover, the effec- tiveness of nudges is usually measured separately, without considering the measurement of potential follow-up effects related to additional nudges and thus testing the effectiveness of the combination of two behavioral interven- tions. Our aim is to explore the impact of a single low–complexity behavioral measure and the effect of a follow-up intervention as a combination of low- complexity measures on littering behavior in a public space with a heteroge- neous group of visitors. This study aims to examine the effects of behavioral interventions that can complement standard public policies (e.g., smoking re- strictions, maintenance) at two different sites in a public lake area maintained by the city district of Bratislava, Slovakia. Although many public organizations develop and implement nudges to strengthen pro-environmental and pro- social behavior, robust experimental settings and measurements of their ef- fects and impact are often missing or unreliable. Therefore, we utilize a quasi- experimental design. Prior to designing the interventions, we conducted a behavioral audit aimed at identifying the group of individuals who contribute most to the littering of cigarette butts in the Strkovec Lake area and determining the factors in- fluencing their littering behavior. The audit consisted of semi-structured ob- servations covering both weekdays and weekends, as well as mornings, af- ternoons, and evenings. We then conducted 13 semi-structured interviews to gain further insight. We identified the areas with a high concentration of cigarette butts and the main littering patterns, such as ignorance and indif- ference to the negative environmental impact, lack of motivation to dispose of cigarette butts in the litter bin, and an insufficient number of litter bins in some parts of the site. We addressed these main reasons for cigarette butt littering using the behavioral insights of salience, priming, and gamification. At the first field site, the smokers were primed with stickers that exhibited the number of steps to the nearest bin for cigarette butt disposal. The follow- Central European Public Administration Review, Vol. 22, No. 2/202412 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský up intervention involved a gamified ballot bin. At the second site, smokers were exposed to a crime scene installation, which served as a salience nudge that highlighted the accumulation effect of cigarette butts. This was followed by another salience nudge in the form of information about the toxicity of cigarette butts. The results demonstrate that the first interventions significantly reduced the number of cigarette butts discarded on the ground. However, the follow-up interventions did not lead to significant changes compared to the state after the first interventions. These findings suggest that initial interventions may have mitigated the potential impact of subsequent nudges in reducing ciga- rette butt littering. The findings also imply that using a standalone nudge may be sufficient to achieve the desired behavioral change, and combining multi- ple nudges may not provide additional benefits in the short term. The article begins by discussing behavioral insights related to cigarette butt littering and its prevention, followed by the methodology, the design of inter- ventions, and a description of each intervention. Next, we present the results, interpretation, and discussion. Finally, the article concludes with practical rec- ommendations for policymakers and suggestions for further research. 2 Littering Problem – From Standard Policies to Behavioral Interventions Many smokers light cigarettes out of habit (Jager, 2003), and their decisions about how to dispose of cigarette butts are often made without conscious thought (Dehdari, 2020). Therefore, littering of cigarette butts may often be the result of unconscious actions. Patel et al. (2013) state that butt littering behavior is often the norm among smokers. In addition, several other factors can negatively influence littering. The presence of existing litter increases the littering problem, while the availability of trash bins can reduce littering (Schultz et al., 2013). Al-Mosa (2017) and Schultz et al. (2013) highlight the impact of the amount of existing litter and the distance to trash bins on in- dividual littering behavior. Johannes et al. (2021) demonstrated that poorly designed prohibitive signs and inaccessible trash bins are part of the reason for littering. People prefer signs in bright colors and labels that communi- cate where to dispose of specific items. Trash cans with signage are effec- tive in reducing littering. Although more neutrally worded antilittering signs are advised, there is little evidence that the “do” type of message is more effective than imploring people “not” to litter (Newcomb and Newcomb, 2020). Kaur and Singh (2022) suggest that interventions aiming at reducing cigarette butt littering should focus on cleaning littered areas and regularly maintaining trash bins. In addition to infrastructure and environmental factors, a lack of awareness of the toxicity of cigarette butts may contribute to the littering problem. Ciga- rette filters are made of non-biodegradable materials and contain hazardous chemicals such as arsenic, benzene, and hydrogen cyanide (Torkashvand et Central European Public Administration Review, Vol. 22, No. 2/2024 13 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas al., 2020). Torkashvand et al. (2020) state that raising awareness about the toxicity of cigarette waste is important for mitigating the littering problem, as individual behavior plays a crucial role in waste production. Webler and Jakubowski (2022) suggest that littering is more likely among individuals who believe that cigarette butts are biodegradable and harmless to the environ- ment, and among those who are not bothered by seeing cigarette butts on the ground. Research suggests that smokers' age and gender may also in- fluence cigarette butt littering. Kolodko and Read (2018) and Schultz et al. (2013) found that age was negatively correlated with littering, while Rath et al. (2012) and Huang et al. (2019) found that males were significantly more likely to litter cigarette butts. The traditional approach used by public administrations is the regulation of smoking behavior. Regulations are often targeted at reducing smoking in the area (through smoking restrictions or bans) and deterring littering (Alpizar et al., 2020). This mechanism is based on traditional expected utility models (deterrence), which portray individuals as rational decision-makers who care- fully weigh the expected costs and benefits (Navarro-Martinez et al., 2018). Patel et al. (2013) mention stronger enforcement of littering laws as one solution, although they are aware of the limits of this approach. However, regulations based on deterring undesirable behavior through orders (and sanctions in the event of non-compliance) necessarily assume administrative capacity to enforce the rules. The relevance of behavioral science lies in its contribution to understanding the causes of individuals’ behavior and finding ways to nudge people to make better decisions. Cognitive limits, social preferences, social norms, and socio- economic factors influence people’s behavior. Therefore, nudging is one of the available environmental policy instruments (Carlsson et al., 2021). Chetty (2015) argues that behavioral economics has implications for public policy and public administration. It provides new tools to influence the actions of individuals. These tools are not based on do's and don'ts but on the use of defaults or framing. In addition, behavioral economics can provide better predictions about the effects of existing policies and insights for identifying more effective public policies and measures. The key is to use the methodo- logical apparatus of behavioral science (e.g., experiments) to better estimate the effects of interventions (public policies), not only in terms of effective- ness but also in terms of their impact on the well-being of individuals. We applied this approach with local public administration to tackle cigarette butt littering. Behavioral interventions that aim to decrease cigarette littering include nudging, which refers to a non-coercive method based on a choice architecture that predictably affects the behavior of individuals. Nudge can take many forms and employ various psychological mechanisms. Nudges can thus provide people with better and more comprehensible information, or they can be based on non-informational influences on the decision-making process (Noggle, 2018). In this paper, we explore three specific behavioral insights with low interaction complexity: gamification, salience, and priming. Central European Public Administration Review, Vol. 22, No. 2/202414 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský 3 Priming, Salience, Gamification, and Complexity of Interaction Priming is one of the behavioral insights used to nudge smokers toward so- cially responsible behavior. Wilson et al. (2016) define priming as subcon- scious cues that can be physical, verbal, or sensational, and nudge toward a particular choice. Priming can take the form of environmental cues or visual reminders of the proximity of designated smoking areas or trash bins, which can prime individuals to consider the environment and dispose of their ciga- rette butts responsibly. According to Schultz et al. (2013), the availability and distance between the user and the trash bin need to be considered as rel- evant factors. Therefore, one possible approach is to make it easier to find trash bins by using priming in the form of footprints leading to litter bins on the sidewalks. This approach has already been tested in several contexts, and the results have shown varying degrees of effectiveness. A 42% reduction in gum litter, which can be similar to cigarette butt litter, was achieved through priming with posters and floor stickers in an experiment conducted in Bris- tol and Cardiff (Hall and Campbell, 2020). However, the effectiveness varied between sites due to pedestrian traffic, unplanned cleaning, heavy rainfall, and construction works (ibid.). Turner (2018) examined the effectiveness of low-cost interventions, such as reminders about the location of trash bins, at a community golf course. Although the reminders reduced cigarette butt littering, Turner (2018) suggests that the introduction of the trash bins alone was the most effective intervention. Another strategy used in nudging is to gain people's attention by provid- ing information that increases the salience of gains, losses, or risks. Salience thus refers to the attention-grabbing nature of an individual, making certain choices more prominent, and it can be used to alter behavior (Noggle, 2018). Houser et al. (2021) stress that these stimuli need to be novel, accessible, and easy to understand. Wilson et al. (2016) argue that reactions are elicited primarily through emotional associations in response to the nudge. In this context, novel information related to the toxicity of cigarette butts and their negative impact on the environment can be provided by salience nudge, as drawing attention to this novel information can change the behavior of smok- ers. Salience can also be used to emphasize cigarette butt littering as a form of anti-social behavior, and its use could increase the likelihood that people will refrain from littering. A strategic placement of visual reminders, such as posters depicting environmental damage caused by cigarette butts near smoking areas, increases the likelihood of proper disposal (Reiter and Samuel, 1980). The trial conducted by Hall and Campbell (2020) indicates that simple reminders at the point of gum littering can have a significant impact on the incidence of littering. In addition, Wallace-Williams et al. (2023) found that social pressures and cognitive factors play a significant role in smokers' behav- ior, and therefore, priming strategies, such as highlighting the negative social consequences of smoking and promoting a sense of social responsibility, can be effective in nudging smokers towards socially responsible behavior. Central European Public Administration Review, Vol. 22, No. 2/2024 15 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas Gamification is an intervention that incorporates elements of game design in non-gaming contexts (Bassanelli et al., 2022; AlMarshedi et al., 2017). It is based on research on heuristics, design patterns, and the dynamics of games. Gamification is used to improve user engagement and experience (Bassanelli et al., 2022). In addition, public administrations are increasingly applying gamification as an emerging game-based approach in policymaking and im- plementation. The attractiveness of this approach stems from its relatively low resource requirements (Hassan and Hamari, 2020). However, it requires the capacity to design systems, services, and processes that provide positive, engaging experiences similar to those of games, as well as the capacity for active analysis, implementation, monitoring of decisions, and maintenance of an applied game (Hassan and Thibault, 2020; Klamert and Münster, 2017). Gamification has been introduced to several areas such as education, habit formation, healthcare, and environmental issues (Koivisto and Hamari, 2019), but also in the context of cigarette butt littering, where gamification is ap- plied to encourage responsible disposal of cigarette butts. Ballot bins that require simple interaction (voting with a cigarette butt) have been tested pri- marily in a homogeneous environment (colleges) and among homogeneous intervention groups (students) (Kolodko and Read, 2018). An example is the student dormitory in the city of Sibiu in Romania, where on-site littering was reduced by 60% (Selagea et al., 2016). However, according to Pavlovský et al. (2022), the effectiveness of ballot bins is more of a challenge in public spaces with high heterogeneity of visitors. 4 Methodology To support pro-environmental and pro-social behavior in the public area of Strkovec Lake in Bratislava, Slovakia, a combination of three behavioral mech- anisms has been tested – priming, gamification, and salience. Cigarette butt littering is a relevant problem in this public space. The area around Strkovec Lake attracts various groups of visitors, such as parents with children, joggers, hobby fishermen, buffet visitors, and individuals relaxing on benches. Smok- ers are present in each category, particularly among passersby, buffet visitors, and those relaxing on benches. Priming, salience, and gamification can be used in behavioral interventions – nudges. The application of these findings may differ in terms of expected social pressure and interaction complexity (Huang et al., 2019). Smokers' be- havior can be noticed and judged by other people (pressure), which can incen- tivize smokers to behave in the desired way. The complexity of the interaction can be low (without immediate feedback) or high (with immediate feedback). We examine the effectiveness of nudges with low interaction complexity – no immediate feedback on behavioral interventions provided to target users. The effectiveness of low-complexity behavioral measures can be tested using experimental methods (John, 2017). The standard is a randomized control trial, which is not applicable in all cases due to the limited possibility of con- Central European Public Administration Review, Vol. 22, No. 2/202416 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský trolling all relevant variables (John, 2017; Haynes et al., 2012). Therefore, a quasi-experimental method (before-and-after evaluation) is applied. Four low-level complexity nudges have been designed within two quasi-ex- periments. There was no direct interaction between researchers and park visi- tors. These interventions were implemented at two sites in the public space: – priming smokers to the nearest trash bin with follow-up gamification using ballot bins in the southwestern part of Strkovec Lake, and – providing salient information about the littering problem with providing follow-up salient information about the toxicity of cigarette butts in the western part of the Strkovec Lake area, around the buffet. The main research question in both quasi-experiments is the following: RQ: To what extent do the low-complexity nudges, standalone and in combina- tion, mitigate cigarette butt littering in public spaces? The quasi-experiments had a pre- and post-test design and were conducted over a period of 11 weeks from 19 July 2021 to 4 October 2021 (see Table 1). Measurements were divided into three main phases: baseline measurements, the first intervention measurements, and follow-up intervention measure- ments. In total, 22 measurements were made. Table 1: Overview of Quasi-Experiments and Timeframe Baseline Intervention 1 Intervention 1 and Intervention 2 Intervention Sites Quasi- experiment 1 - Priming Priming and Gamification the southwestern part of the Strkovec Lake area Quasi- experiment 2 - Salience Salience and Salience the western part of the Strkovec Lake area, around the buffet Timeframe from 19 July to 8 August 2021 from 9 August to 5 September 2021 from 6 September to 4 October 2021 - Source: authors 4.1 Quasi-experiment 1 The first quasi-experiment was conducted in the southwestern part of Strko- vec Lake (see Appendix 1, Figure 2). The area had three benches and a trash bin placed slightly away from the bench area, so smokers had to walk a few steps to dispose of their cigarette butts. We tested the effectiveness of prim- ing and a combination of priming and gamification interventions in reducing cigarette butt litter. Central European Public Administration Review, Vol. 22, No. 2/2024 17 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas The research sub-questions are as follows: SQ1: To what extent does priming to the nearest trash bin affect the number of cigarette butts outside the bin? SQ2: To what extent does gamification, in combination with priming, influence the number of cigarette butts outside the bin? Hypotheses: We expected that both priming to the nearest bin (H1) and the combination of priming and gamification (H2) would decrease the amount of cigarette butt littering. The first behavioral intervention – priming – was implemented on 9 August and included the installation of stickers with a number of steps to the nearest trash bin and an arrow showing the direction (see Appendix 2, Figure 3a). The intervention was intended to nudge individuals toward the target behavior by using subconscious cues, which is a typical mechanism of priming (Wilson et al., 2016). The second intervention, in the form of a ballot bin, represented gamification with elements of game design (Bassanelli et al., 2022). The ballot bin was in- stalled on 6 September near the benches, conveniently located for passersby. The question on the ballot bin asked: ‘Which superpower would you choose?’ Possible answers were ‘invisibility’ and ‘flying’ (see Appendix 2, Figure 3b). We intentionally did not remove the first intervention before installing the fol- low-up intervention, allowing us to measure the accumulated effect of both during the last phase of the quasi-experiment (see Table 1). 4.2 Quasi-experiment 2 The second quasi-experiment was conducted in the eastern part of Strkovec Lake, covering the area around the buffet. This area had several benches and a high number of trash bins to dispose of waste. Despite that, the area was still polluted by cigarette butts. The research sub-questions are as follows: SQ3: To what extent does increasing the salience of cigarette butt littering affect the number of cigarette butts outside the trash bin? SQ4: To what extent does salient information on the toxicity of cigarette butts, in combination with the salience of cigarette butt littering, influence the number of cigarette butts outside the trash bin? Hypotheses: We expected that both salient information on cigarette butt accumulation (H3) and the combination of cigarette butt accumulation and toxicity (H4) would decrease the number of cigarette butts outside trash bins. The first intervention was a salience nudge in the form of a so-called crime scene. The area was tapped with barricade tape, and stickers illustrating ciga- rette butts were placed inside the secured area (see Appendix 2, Figure 4a). Central European Public Administration Review, Vol. 22, No. 2/202418 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský We also installed a plate with the information that this area was cleaned from cigarette butts. We intended to increase the salience of cigarette butt litter- ing and show its accumulation effect. The second intervention was also a salience nudge. We installed stickers with information on the toxicity of cigarette butt littering (see Appendix 2, Figure 4b). The stickers were placed in front of the benches. Each sticker contained one of two messages: (1) ‘Cigarette butts are not natural material, they are toxic waste - it is right to throw them in the trash’ and (2) ‘Cigarette butts con- tain up to 140 toxic substances’. Both interventions provided vivid examples and explanations to draw attention to the desired behavior, which is a typical mechanism of salience nudges (Wilson et al., 2016). As in quasi-experiment 1, we deliberately did not remove the first intervention before installing the second one. Therefore, we could measure the combined effect of the crime scene and the salient information on the toxicity of cigarette butts. 4.3 Limitations Based on a behavioral audit, we selected two locations as the most polluted zones. The first zone includes three benches in the southwestern part of Strk- ovec Lake. The second zone covers the area around the buffet (see Figure 2 in Appendix 1). We acknowledge that the limited number of data collection locations and the lack of control over visitors and their socio-demographic characteristics are limitations of this research. These factors could introduce bias and impact the validity of our conclusions, but a more controlled experi- mental design was not feasible. In addition, we argue that both locations – the benches and the area around the buffet – are typically locations where cigarette butt littering occurs. Therefore, the selection of locations should not significantly impact the validity of our findings. Although we were unable to control the number of visitors or their demo- graphic characteristics, we did control other variables that could affect at- tendance at the Strkovec Lake area and indirectly the behavior of visitors, such as weather conditions, summer vacations, working days and weekends, social events on the premises, and more (see Table 5 in Appendix 3). Another limitation is that, due to the uncontrolled field design, some participants may have been exposed to both quasi-experiments. Because of the difficulties in finding a similar location that could serve as a control location, a before-after design was used. This implies that we as- sumed the baseline period (before intervention) reflects what would have occurred in the absence of Intervention 1. Therefore, our results comparing Intervention 1 to the baseline period should be interpreted with caution, as they rest on the premise that the baseline period accurately represents what would have happened without the intervention. An additional limitation of this research relates to the implementation of sub- sequent interventions. When the follow-up interventions were introduced, the initial interventions were not removed. This led to interactions between Central European Public Administration Review, Vol. 22, No. 2/2024 19 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas interventions and difficulties in isolating the effects of each individual inter- vention. Furthermore, another limitation is the small number of observations. All measurements were collected over an 11-week period, biweekly, for a total of 22 data collections at both sites. We prioritized the quality of data collection over quantity. Therefore, we closely cooperated with a third-party organization that followed the data collection protocol and collected all data. 5 Results This part of the article reports the results of the interventions implemented at two sites of Strkovec Lake. At the first site (quasi-experiment 1), we used prim- ing and gamification. At the second site (quasi-experiment 2), we used two variations of salience (highlighting the extent of cigarette butt pollution and its harmfulness to health). First, we report the results for the first site (quasi- experiment 1), and later the results for the second site (quasi-experiment 2). Two behavioral interventions were implemented at the first site (quasi-exper- iment 1) after a three-week baseline measurement. The interventions were implemented four weeks apart. The first intervention drew attention to the proximity of trash bins using stickers with the number of steps to the nearest bin and an arrow pointing to it. The second intervention involved installing a ballot bin to nudge the target group toward social behavior using game design elements. The data showed a significant reduction (45%) in the mean number of cigarette butts after the introduction of the first intervention (bin priming). The follow-up intervention (gamification – ballot bin) strengthened the effects of the previous intervention, reducing the volume of cigarette butts outside the trash bin by 53% (see Table 2). It should be noted that extreme values in the number of cigarette butts were observed during the monitoring of the quasi-experiment, which were reflected in the standard de- viation values, especially in the baseline and intervention 1 (stickers). These extreme values may have been caused by social events that took place on the days preceding waste collection. At the same time, we controlled for the potential effect of social events in the OLS regression model (see Table 4). The combined effect of both interventions on the amount of cigarette butt pollution on the ground was 74% (see Figure 1). Table 2: The effects of the Quasi-experiment 1 (stickers and Ballot bin) N – number of measurements (data collection) Mean value (SD) – cigarette butts as unit of measurement 0 – baseline 6 82.5 (66.31) 1 – priming to the nearest bin via stickers 8 45.3 (35.25) 2 – priming with gamification (Ballot bin) (combination) 8 21.4 (5.53) Source: authors Central European Public Administration Review, Vol. 22, No. 2/202420 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský A one-factor analysis of variance (one-way ANOVA) indicates statistically sig- nificant differences in the number of cigarette butts in the southwestern part of Strkovec Lake [F(2, 19) = 3.95, p = 0.037]. The Tukey post-hoc test shows that intervention 2 – ballot bin – is statistically significant (p = 0.029) only when compared to the baseline (reductions in the mean number of cigarette butts on the ground from 82.5 to 21.4 measurement units), but it is not sta- tistically significant compared to intervention 1. The effect size of the first intervention (stickers) compared to the baseline is meaningful, although not statistically significant. Statistical insignificance may be attributed to a rela- tively large standard deviation, suggesting that some smokers did not change their behavior. One reason may be that the distance to the nearest bin was perceived by smokers as too long, inconvenient, and requiring too much ef- fort. Consequently, the reminder of the proximity of the bin via the sticker may simply not have been motivating enough. Table 3: The effects of the Quasi-experiment 2 (Salience – crime scene and toxic waste) N – number of measurements (data collection) Mean value (SD) – cigarette butts as unit of measurement 0 – baseline 6 262.3 (138.7) 1 – Crime scene 8 132.6 (24.34) 2 – Crime scene with Toxic waste (combination) 8 102.4 (34.73) Source: authors The other two behavioral interventions were implemented at the second site (quasi-experiment 2) after a three-week baseline measurement period. The first intervention (1) had the form of a crime scene installation designed to draw the attention of smokers to the number of cigarette butts outside the trash bin. The motivation for this intervention was based on the assumption that some smokers do not perceive cigarette butts as litter because of their small size. The second intervention also aimed to draw attention to the toxic- ity of cigarette butts. The assumption in this case was that some smokers and non-smokers lack knowledge about the toxicity of cigarette butts. As with the measurements of interventions at the other site (quasi-experi- ment 1), the data show a large variation in the number of cigarette butts, as indicated by the high standard deviation (SD). This variation was primarily observed in the baseline phase measurements. Since the third-party organiza- tion that collected data used identical protocols, the variation due to worker turnover should be negligible. Central European Public Administration Review, Vol. 22, No. 2/2024 21 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas Figure 1: Reduction of cigarette butts by quasi-experiment 1 and 2 Source: authors The effectiveness of both interventions was tested against a baseline using a one-way ANOVA test. This test showed that the differences in the mean number of cigarette butts on the ground were statistically significant [F(2, 19) = 8.31, p = 0.003]. The Tukey post-hoc test shows that in both cases, the changes are statistically significant from baseline (intervention crime scene vs. baseline (p = 0.013); intervention toxic waste vs. baseline (p = 0.003)). Af- ter the introduction of the first intervention (crime scene), the mean number of cigarette butts was reduced by 130 units (50%). The follow-up interven- tion (toxic waste) increased the effects of the previous intervention by 26% in reducing the volume of cigarette butts on the ground by 30 cigarette butts (see Table 3). However, this difference is not statistically significant according to the Tukey post-hoc test. In sum, after the implementation of the second intervention, the number of cigarette butts on the ground decreased by 160 units of measurement compared to the baseline (61%), and this difference is statistically significant. A separate model (see Table 4) was calculated for each zone (quasi-experi- ment). Linear regression indicates that in both quasi-experiments, none of the control variables (temperature, rainfall, wind, level of COVID-19 restrictions, school holidays, cultural events, and weekends) significantly influenced litter- ing – the number of cigarette butts (p>0.05). In the first quasi-experiment, the first intervention (priming to trash bins) reduced the number of cigarette butts by 70 in comparison to the baseline, and the effect is statistically sig- nificant (p<0.05). The follow-up intervention (ballot bin) also indicates a sta- tistically significant effect size, with a reduction of almost 130 cigarette butts compared to the baseline. The first intervention (salience – crime scene) in quasi-experiment 2 reduced the number of cigarette butts by 195 compared to the baseline, and the effect is statistically significant (p<0.01). When com- paring the effect of the follow-up intervention (salience – toxicity) to the base- Central European Public Administration Review, Vol. 22, No. 2/202422 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský line, the effect size in the reduction of cigarette butts was meaningful (-162), but smaller compared to the first intervention, and was not statistically signifi- cant. In other words, we do not see any boosting effect but quite the contrary, there is a possible backfiring effect. The explanatory power of both models ranges from 0.13 to 0.36, which means that the models explain 13% and 36% of the variance in the dependent variable (mean number of cigarette butts). However, it is important to note that the number of observations for both studies is limited to 22 (11 weeks of measurement). In summary, these results show that the first interventions (priming and salience) reduced littering and the effects are statistically significant, while we do not have solid evidence that follow-up interventions significantly improved the behavior of smokers. From both models, we also created nested models without any control vari- ables, so they contained only the number of cigarette butts as the depend- ent variable and the interventions as the independent variables. The nested models fit as well as the original models in the case of quasi-experiment 1 [F(7,12)=0.72, p= 0.66] and quasi-experiment 2 [F(7,12)=0.78, p=0.61]. Central European Public Administration Review, Vol. 22, No. 2/2024 23 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas Table 4: Linear regression Zone 1 (Quasi-experiment 1) Zone 2 (Quasi-experiment 2) Outcome: number of cigarette butts Estimate Standard error Cl (2.5% - 97.5%) Estimate Standard error Cl (2.5% - 97.5%) (Intercept) 221.960 146.967 -98.253 – 542.173 706.105* 272.046 113.367 – 1298.842 Intervention 1 (priming) – Baseline -70.178* 29.0895 -133.559 – -6.797 Intervention 2 (Ballot bin and priming) – Baseline -129.705* 55.664 -250.986 – -8.424 Intervention 1 (salience – crime scene) – Baseline -195.070** 53.847 -312.392 – -77.748 Intervention 2 (toxicity and crime scene) – Baseline -161.578 103.038 -386.078 – 62.923 Temperature -4.963 4.483 -14.730 – 4.804 -8.277 8.298 -26.356 – 9.803 Rainfall -0.214 1.014 -2.422 – 1.995 0.877 1.876 -3.211 – 4.965 Wind -1.567 2.787 -7.640 – 4.505 -9.707 5.159 -20.947 – 1.534 COVID-19 Restrictions -25.007 35.472 -102.294 – 52.280 -42.938 65.661 -186.002 – 100.126 School holiday – no school holiday 48.666 60.244 -82.594 – 179.927 -77.237 111.516 -320.209 – 165.736 Cultural events – no cultural events 26.192 25.834 -30.095 – 82.478 24.138 47.820 -80.052 – 128.328 Weekend – workday 3.192 23.083 -47.100 – 53.485 -28.048 42.728 -121.143 – 65.048 N 22 22 R / adj. R2 0.502 / 0.128 0.634 / 0.36 AIC 236.183 263.277 Source: authors Note: Reference groups for each categorical (nominal scale and ordinal scale) variables: School holiday – no school (summer) holiday; Cultural events – no cultural events in or nearby the area; Weekend – workdays (from Monday to Thursday; Intervention 1 (priming or salience – crime scene) – Baseline; Intervention 2 (Ballot bin or salience – toxicity) – Baseline; COVID-19 measures/restric- tions – the scales/colors on the COVID-19 automat (from green to red) that indicate the severity of the measures (ordinal scale). Variables Temperature, Rainfall, Wind are numeric (continuous). Significance codes: < 0.001 ‘***’, < 0.01 ‘**’, < 0.05 ‘*’. Central European Public Administration Review, Vol. 22, No. 2/202424 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský 6 Discussion Low-complexity interventions can effectively nudge against cigarette butt lit- tering, but most importantly, combining them does not necessarily lead to a significant increase in positive effects. Although the overall effects after two interventions in both quasi-experiments delivered positive results in terms of reducing cigarette butts compared to the baseline, the follow-up interven- tions did not statistically significantly reduce cigarette butt litter when com- pared to the first interventions in both quasi-experiments. In other words, both follow-up interventions demonstrated positive effect sizes in reducing cigarette butt litter, but the effects were not statistically significant in com- parison to the first interventions. The findings show that nudges can effec- tively complement traditional public policies in smoking and littering regula- tion. In addition, the study suggests that local public administrations do not need to implement multiple behavioral interventions, but one can be enough. The non-significant boosting effects of the follow-up interventions that ac- companied the first interventions are nonetheless not surprising, since the ef- fectiveness of both first-installed low-complexity nudges might have crowd- ed out the potential effectiveness of the follow-up interventions. The positive change in the site’s cleanliness after the first interventions may have stimu- lated a contextual impression of cleanliness that can, according to Tehan et al. (2017), reinforce non-littering behavior. In the first quasi-experiment, the sticker informing and navigating (priming) to the nearest trash bin reduced cigarette butt littering by 45%. This result may be due to making butt disposal cognitively cheaper, hence more acces- sible, and thus more likely to be acted upon by cognitive misers (Stanovich, 2009) and those relying on what Kahneman (2013) labeled as System 1 au- tomatic thinking. By including the information ‘10 steps to the nearest bin’, the intervention aimed to influence the perceived effort needed to dispose of the cigarette butt in the bin. Although the effect of the sticker interven- tion is meaningful, we have mixed evidence on its significance. The regression model shows that the effect is statistically significant, while the ANOVA test does not. In other words, the results suggest that the deviation within the groups (interventions) is relatively high, complicating the decision on wheth- er the groups differ significantly from each other. Hence, we are not able to rule out the possibility that priming (Hertwig and Grüne-Yanoff, 2017), the message about the proximity of the nearest bin, has limited effectiveness in changing smokers’ behavior. Information about the proximity to the nearest trash bin may not be sufficient to change littering behavior because some smokers may be aware (Bazerman and Moore, 2012) of other facts about the consequences of littering that may influence their decision. The effect of the priming intervention can be limited because, for some smokers, the informa- tion about the distance to the nearest trash bin may have made littering less effortful, which is something future research in this area could focus more on. The purpose of the follow-up nudge (ballot bin) that complemented the first nudge (priming) in the first quasi-experiment was to test whether friction Central European Public Administration Review, Vol. 22, No. 2/2024 25 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas against the desired cigarette butt disposal might be caused not only by men- tal but also by physical effort. To make this physical effort less important, and therefore decrease the perceived costs of the desired cigarette butt disposal behavior (Huang et al., 2019; Schultz et al., 2013), we added new infrastructure to the area – the ballot bin. Although the reduction in the number of cigarette butts is of meaningful size, the improvement by the ballot bin is not statisti- cally significant compared to the navigation stickers. However, the combined effect of both interventions reduced cigarette butt litter from cigarette butts by 74% compared to the baseline, and this change was statistically significant. We used a neutral question on the ballot bin (‘Which superpower would you choose?’), and we did not change this question during testing. Using the ques- tion about superpowers was an attempt to avoid loaded language in order not to confound measurements by adding an extra intervention. In the second quasi-experiment, both salience low-complexity nudges dem- onstrated meaningful effect sizes, but only the first installed crime scene intervention was consistently significant across our analyses. Increasing the salience of cigarette butt littering by crime scene reduced the number of cigarette butts outside the trash bins by 50%. The effectiveness of the crime scene intervention can be attributed to its attractive design. Altering the choice architecture by adding infographics might have effectively signaled (Krijnen et al., 2018) that someone cares about the site and might be watch- ing, thus creating a form of psychological costs in the form of distress from being observed and possibly socially or otherwise punished. Furthermore, smokers might not have realized (due to the bounded awareness (Bazerman and Moore, 2012)) that they are in fact causing such a serious problem until somebody made the problem salient. The crime scene nudge thus influenced their decision-making (Hertwig and Grüne-Yanoff, 2017) by directing their at- tention to overlooked information about the existence of a problem. Moreo- ver, the crime scene nudge not only made the existence of the problem sali- ent but also personalized the problem for that particular location by making it clear that this is the place where the problem occurs. The follow-up toxicity nudge that complemented the first nudge (crime scene) aimed to help smokers realize an important and often overlooked aspect of their habitual (Rath et al., 2012) and automatic (Jager, 2003) behaviors. By making the harmfulness of the butts salient, the intervention highlighted that cigarette butts are toxic waste. Although the follow-up combined (toxicity and crime scene) intervention had a generally positive effect size, it did not statistically significantly reduce cigarette butt littering. Intervening in an area with a relatively low volume of cigarette litter may have weakened the poten- tial effectiveness of the follow-up intervention. The first installed interventions reduced the litter by almost half in both quasi- experiments. Therefore, the significant effects of the first interventions may have created an impression of the cleanliness at the site, which according to the assertion of Tehan et al. (2017), correlates with the likelihood of addition- al litter. The findings suggest that the first nudge limited the potential of the Central European Public Administration Review, Vol. 22, No. 2/202426 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský follow-up nudge. In contrast to meta-observations from other environmental policy domains, namely pro-energy conservation nudging studies (Byerly et al., 2018; Delmas et al., 2013), observations from our quasi-experiments sug- gest that using a single behavioral intervention may be sufficient to achieve the desired behavioral change, while reinforcing it with a follow-up interven- tion after a short period of time may not yield any additional statistically sig- nificant effects. 7 Conclusions and Recommendations This research contributes to the literature on low-complexity nudges and the effectiveness of nudging in waste reduction. It also contributes to the public administration literature from the perspective of applying nudging in public policy problems. The findings suggest that using a single behavioral interven- tion may be sufficient to achieve the desired behavioral change and that ef- forts to further strengthen the results by additional follow-up intervention may not produce statistically significant improvement compared to the first intervention. Research indicates that if a follow-up intervention is implement- ed within a short period after the first intervention (4 weeks), the first inter- vention may crowd out the potential of follow-up behavioral intervention. This article provides three practical recommendations for public administra- tion organizations and public policies. First, the insights gained from this re- search can inform broader public service management strategies. Specifically, the low-complexity nudges tested could be adapted to address forms of un- healthy and unecological behaviors, such as general or cigarette butt littering. Public administrations could implement nudges that incorporate insights on priming, salience, and gamification to promote healthier and more environ- mentally friendly behaviors among smokers as well as the general public. The local public administration may focus on implementing and maintaining one behavioral intervention, possibly replacing it with another only after a few months when the positive effects of the original intervention begin to fade. Second, the implementation of any intervention requires careful planning of data collection to evaluate its effectiveness. Collecting reliable data is a challenge in field (quasi-)experiments in waste management, especially when multiple stakeholders from within and outside the public administration (or non-profit organizations) are involved. Given the length of time needed to measure and evaluate the impact of the intervention, there may be short periods when members of the municipality’s community service department are on vacation in large numbers, which can jeopardize the continuity of the measurements. Therefore, it is important to develop data collection proto- cols and have a backup plan, such as working with volunteers or third-party organizations. Third, the condition of installed interventions needs to be monitored, as they can be damaged by weather conditions or human activities. The intervention must be repaired as soon as damage occurs. In addition, public administration Central European Public Administration Review, Vol. 22, No. 2/2024 27 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas representatives may be interested in presenting and publicizing the coopera- tion in local media and on social networks. However, media coverage of the intervention and its intent can significantly affect the results, and therefore, it is important that the collaborating organization maintains confidentiality throughout the implementation of the quasi-experiment. Any type of media coverage can endanger the validity of measurements and bias the results. There are not many field (quasi-)experiments with rigorous measurement of low-complexity interventions in this area. One of the reasons for the low num- ber of similar studies is the difficulty in implementing and measuring nudges in public spaces with a high degree of heterogeneity among visitors. In these quasi-experiments, we had two data collection locations and no control over the visitors and their socio-demographic characteristics. Both selected loca- tions (benches and the area around the buffet) are typically locations where cigarette butt littering occurs. 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The first site contains three benches in the southwestern part of Strkovec Lake. The second site covers the area around the buffet. Strkovec Lake, in- cluding both targeted zones, is an open and easily accessible area without any specific entry points or fences to restrict access. Figure 2: Sites of interventions in quasi-experiments on Strkovec Lake Source: authors, based on OpenStreetMap and Leaflet package in R (Cheng et al., 2024) Central European Public Administration Review, Vol. 22, No. 2/2024 33 One Nudge Can Be Enough: Reducing Cigarette Butt Littering in Public Areas Appendix 2 Figure 3: Quasi-experiment 1 – (a) arrows to the nearest bin and (b) ballot bin a. b. Source: authors Figure 4: Quasi-experiment 2 – crime scene (a) and information on toxicity (b) a. b. Source: authors Central European Public Administration Review, Vol. 22, No. 2/202434 Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský Appendix 3 Table 5: List of Variables Used in both Quasi-Experiments Variable Description Number of cigarette butts Dependent variable Numerical Priming Independent variable Dummy 1 – Intervention, 0 – Baseline Priming + Gamification Independent variable Dummy 1 – Intervention, 0 – Baseline Salience (crime scene) Independent variable Dummy 1 – Intervention, 0 – Baseline Salience (crime scene) + Salience (toxicity) Independent variable Dummy 1 – Intervention, 0 – Baseline Temperature Control variable Interval Rainfall Control variable Numerical Wind Control variable Numerical COVID-19 restrictions Control variable Ordinal 0 – monitoring 1 – Watch I Slovakia’s “COVID Automat” Traffic Light System that indicates severity of restrictions. It included 7 levels in ascending order (monitoring, watch I, watch II, warning I, warning II, warning III, warning IV). However, during the data measurements in Bratislava, only two of these levels were implemented. School holidays Control variable Dummy 1 – Yes, 0 – No Cultural events Control variable Dummy 1 – Yes, 0 – No Days of the week Control variable Dummy 1 – Fri, Sat, Sun 0 – Mon, Tue, Wed, Thu Source: authors Note: The variables “Priming” and “Priming and Gamification” apply only to quasi-experiment 1, while the variables “Salience” and “Salience and Salience” apply only to quasi-experiment 2. 35 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ Paksi-Petró, C. (2024). Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? Central European Public Administration Review, 22(2), pp. 35–53 DOI: 10.17573/cepar.2024.2.02 1.01 Original scientific article Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? Csilla Paksi-Petró Ludovika University of Public Service, Budapest, Hungary petro.csilla@uni-nke.hu https://orcid.org/0000-0003-1226-7303 Received: 3. 1. 2024 Revised: 3. 6. 2024 Accepted: 27. 6. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: The aging of civil servants poses the greatest risk for public in- stitutions in Europe, making it increasingly difficult for employers to of- fer a suitably motivating atmosphere and attractive working conditions for different generations. Lately, research has been focusing on the tools and human resource (HR) and communication strategies that can help re- tain talented workforce and increase their loyalty. The purpose of the study is to investigate the competitiveness of the Hungarian civil service through a literature review, exploring how attractive or repulsive a civil service career is in the Hungarian labour market. Finally, the article pre- sents some suggestions on how governments can proactively attract and retain the talented next generation of civil servants. Design/Methodology/Approach: The article is partly descriptive and syn- thesizing, drawing on extensive, comprehensive knowledge and systema- tization of domestic and international literature and legislation. Findings: The greatest challenge in public administration HR manage- ment today is replacing the older generation, transferring knowledge and practical experience, as well as winning over generations Y and Z and cre- ating attractive working conditions for them. The article summarizes the options to address these staffing challenges based on the literature and practice offering numerous solutions to recruitment and retention issues. Practical Implications: Public administration has always been considered a special field, with operating principles and processes differing signifi- cantly from those of the private sphere. A wide range of specialized lit- erature has researched, through the explanation of generational change, the HR tools necessary for attracting and retaining today’s employees. Some of the proposed tools and measures may differ from the traditional organizational culture of the public administration. This article lays the grounds for the next empirical phase of research, which will investigate the main motivators for public administration employees and the factors that drive their commitment. This phase will also examine whether the Central European Public Administration Review, Vol. 22, No. 2/202436 Csilla Paksi-Petró motivators and commitment factors differ from those in the private sec- tor and how the unique characteristics of public administration manifest in this field. By presenting development trends in Hungary, this study aims to contribute to the scientific discourse on the specific characteris- tics of this issue in Central and Eastern Europe. Keywords: civil service career, competitiveness, human resources potential, labour shortages JEL: J45 1 Introduction Attracting and retaining a talented workforce is crucial for the success and growth of any organization. The aging of civil servants represents the great- est risk for public institutions in Europe. In some countries (Belgium, Italy, and Spain) up to 45% of civil servants retire may march in the next 15 years. Effec- tive strategies must be implemented to attract of talented workforce, the im- plementation of knowledge transfer and provide advancement opportunities (European Semester-Thematic Information, 2018). European populations are aging and private- and public-sector organizations struggle to manage talent shortages that are undermining their workforces and productivity. Attracting and retaining workers became a top priority for governments otherwise la- bor shortages would cause several problems in the delivery of public service. Along with the emerging new challenges to the public administration system, youth involvement is becoming a critical task (Polyakova, 2020). There is a growing emphasis on attracting young talent to the civil service. Studies high- light the importance of open innovation and addressing the specific needs and expectations of younger generations to enhance the attractiveness of public administration as a career choice (Nana Amma, 2020). Public service motivation is crucial because it explains a large part of the at- tractiveness of governments (Vandenabeele, 2004). Recent research reveals that compensation, meaningful work, and workplace flexibility top the list of factors civil servants said would keep them in their current roles (Smet, 2022). Threats to public human capital: budget cuts, aging personnel. Civil service human capital is threatened by mostly the following factors: budget cuts and the aging workforce (Hazafi, 2017). The traditional concept of civil service, characterized by job security and dis- tinct employment status, is gradually evolving. Many studies indicate a shift towards more dynamic and flexible employment models within public admin- istration. This transition reflects broader societal and economic changes, im- pacting the overall appeal of civil service careers (Demmke, 2019). In the early 1990s, Hungary introduced a career system, which is now being dismantled for greater flexibility. The regulation of public service has become fragment- ed: there are eighteen types of employment relationships in the public sector, eight of which exist in public administration. Basic employment conditions vary by employer. New internal rules have replaced the unified public law reg- Central European Public Administration Review, Vol. 22, No. 2/2024 37 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? ulation, potentially increasing the power of employers and the dependence of civil servants (Hazafi, 2023). 2 Methods A stable and reliable public administration is fundamental for the competi- tiveness of a country (Uzsák, 2022). As a starting point, it is necessary to clarify what we mean by competitiveness in this article. Competitiveness can mean, on the one hand, how effectively and efficiently public administration can ful- fill its tasks, and how it can continuously develop its services and processes. On the other hand, the concept of competitiveness can also be interpreted in terms of how well the sector can attract and retain talented employees. The term “competitive public administration” has frequently been used in the Hungarian public administration personnel policy in recent years (Hazafi and Kovácsné Szekér, 2022). In this article, we will work with this latter meaning. To achieve competitiveness, it is necessary to develop HR management tools in personnel policy that support the attraction, integration, and retention of employees in public administration careers. The competitiveness of civil service positions can vary based on several fac- tors, including government policies, economic conditions, and the specialties of the job market. To get the most accurate and current information on the competitiveness of the Hungarian civil service, we need to analyze official government websites, contact relevant authorities, and collect recent reports on public sector employment in Hungary. These sources should provide in- sights into the current state of the Hungarian civil service human resource management pursuits. Both international and domestic literature mostly agree that it is nearly im- possible to establish a single, universal principle to define who public service employees are (György-Hazafi, 2018). In the broadest, everyday sense, public service employees include elected representatives of legislative and represent- ative bodies (parliamentary and municipal representatives); the personnel of the judiciary (courts, prosecution, etc.); the staff of public administration; the members of armed and other law enforcement organizations (police, defense, military, fire department); the staff of institutions and bodies providing public services operated by the state and municipalities (such as hospitals, schools, public cultural institutions); other individuals or employees of bodies perform- ing administrative tasks; employees of publicly owned companies; and mem- bers of public bodies and public foundations. The narrower scope of public service is generally associated with the organizational system of public admin- istration (Kun, 2017). This paper primarily focuses on the Hungarian terms: civil servants (employed by bodies with special legal status and local governments) and government officials (workers at central and regional government admin- istrative bodies) ((Act CXXV of 2018, Hungary)) ((Act CVII of 2019, Hungary). To investigate the topic I have set the following areas: number of employees; factors of attraction and repulsion; generational changes; main characteris- Central European Public Administration Review, Vol. 22, No. 2/202438 Csilla Paksi-Petró tics of the profession, and advantages and specialties of the civil service ca- reer. Based on the identified main areas of the topic, my research questions (RQs) of the study were: – Is the Hungarian public administration characterized by the lack of man- power or the high number of employees? – Which factors affect the public administration’s ability to attract and retain civil servants? – How attractive is public administration for young people today, and what trends characterize the development of the age composition? – What other trends exist in public administration? – Why it is worth choosing the public administration profession today? – What could the public administration do to ensure competitive supply? The article is partly descriptive and synthesizing, requiring extensive, compre- hensive knowledge and systematization of domestic and international litera- ture and legislation. One can form their own opinion and make a concrete proposal based on the relevant literature. In this respect, the article includes explanatory and reconnaissance parts as well. The study is mostly based on secondary data, which consists of books, reports, newspaper articles, legal rules, and various research journals. The Hungarian literature is not very extensive regarding the scientific exami- nation of the public administration to attract employees. I aimed to search the existing relevant literature, summarize, synthesize, analyze, and highlight the gaps in the literature to be able to point out future research areas. 3 Results Employee retention challenges can arise from various factors, and identifying these gaps is crucial for implementing effective strategies. Public administra- tion has always been considered a special field, its operating principles and processes differ from those of the private sphere in many respects. A wide range of specialized literature has researched, through the explanation of generational change, what HR tools are necessary to attract and retain to- day’s employees. Some of the proposed tools and measures may differ from the organizational culture of the public administration. In the literature, relatively few research take into consideration and build retention strategies based on the specialties of civil service organizational methods. Shortly it would be crucial to develop the civil service criteria system of employee retention and examine deeply its characteristics. In Hungary, the strategic human resource management approach has not been developed in the past 50 years, and it has not become a priority in recent years, which results in the low quality of retention policies and insular solu- tions. The traditionally slower, bureaucratic, and under-resourced organiza- tional system cannot keep up with the expectations of young and/or talented Central European Public Administration Review, Vol. 22, No. 2/2024 39 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? employees living in the accelerated digital world and the world of opportuni- ties in 2024. A structural reform would be most beneficiary, although a change in the at- titude of the organizations and the creation of several even minor opportuni- ties could at least increase a bit the attractiveness of the public administra- tion and the satisfaction of its employees. 4 Discussion Many modern organizations in general struggle with similar problems, like aging workforce, recruitment and retention challenges, skill gaps, and resist- ance to change. This part of the study introduces the main finding in the case of Hungarian civil service specialties. 4.1 Is the Hungarian Public Administration Characterized by the Lack of Manpower or an Excessively High Number of Employees? For a long time, forecasts and opinions stated that jobs were scarce, and em- ployees should value their jobs due to the difficulty of finding new ones and the risk of unemployment. In the last few years, this notion changed radically. One empirical study reveals that the core reason for highly educated indi- viduals in Hungary rejecting public service is low salaries. The other crucial reason is the competition among employers: this forces them to bid against one another for suitable personnel (Tóth, 2019.). The fluctuations in the la- bor market affect the supply of public administration. In the case of a supply- side labor market, the pressure on the supply side pushes a significant part of those dismissed from the private sector into the public administration, who are taken in by the public administration due to the soft budget limit (Hazafi, 2023). And all of this is also true the other way around, the demand labor market sucks the labor force out of the public service, as the employment conditions are not competitive. What phase are we in right now? Is the public administration characterized by a shortage of labor or just too many staff? Both are true. Looking at the European continent as a whole, labor shortages are becoming a general trend in Europe, there are a few exceptions to this, such as the IT and financial fields (Fazekas and Köllő, 2016). The sectors most affected by the shortage are healthcare, education, construction, and hos- pitality. In Hungary, employment is high and the unemployment rate is low (KSH, 2021). But in addition to quantitative problems, it is becoming a trend that employee competencies are not able to keep up with changing demands. There are different solutions in the European Union member states to deal with the labor shortage. In certain sectors, migration, retraining, more effi- cient use of the workforce, involvement of the inactive, or family policy, will only have a visible effect in the long term (Dudás, Halmos and Kártyás, 2018). Based on previous trends and individual experiences public administration is characterized by high turnover. The rate of legal relationship terminations is Central European Public Administration Review, Vol. 22, No. 2/202440 Csilla Paksi-Petró well over 10% (Hazafi, 2017). For a long time, it was the highest in the minis- tries. Research examines the causes of turnover. We usually say that the ab- sorptive effect of higher wages increases emigration. More than 40 percent of the Hungarian population looks for work based on earning opportunities, which is understandable. The scissors are swinging between the private and the wages of the public sector. The income provided by the private sector and the public sector differs the most in the case of graduates with several years of experience, here the salary difference reaches 40% (hrpwr.hu, 2023). Therefore, leaving the public service and avoiding the public sector is a ra- tional decision in their case - if we only look at income. In the case of young people, the starting income available in the private and public sectors does not yet differ to such a significant degree, perhaps the effect of this is that young people often see these jobs as a springboard, and then leave the public sector after a few years (Veroszta, 2013). In addition to salary, research shows that the lack of organizational stability and the uncertainty associated with a series of reorganizations are most often cited by those involved as the reason for leaving the job. Where organiza- tional uncertainty is perceived, migration begins. Usually, those who receive a favorable offer do not hesitate. In many cases, the reason for the change is dissatisfaction with the management culture, workplace atmosphere, and organizational conditions (Restás, Szabó and Czibor, 2019). There is also a significant movement within the public administration, which is experienced by the lower-level units in such a way that highly qualified and ca- pable colleagues are “hunted down” by the governing bodies and taken away from them. But other reasons influence fluctuation. One example is the dis- proportionate workload, which has an alarming effect on employees (Family Friendly Country Research, Final Study, 2019). They usually wait a few years to see if the amount of tasks decreases or if the remuneration for this increases, and if this does not happen, they switch. It is important to emphasize that the legal decentralization of the public ad- ministration implemented by the Act on Government Administration abol- ished the homogeneous unity of employers, and the fixed wage scale since each organization can freely develop its employment, remuneration, and working conditions (Act CXXV of 2018, Hungary). This puts them in a kind of competition with each other, and professionals go to places where they are offered more favorable conditions. In the last few years, this has strength- ened the mobility between the bodies and created a smaller labor market within the public administration, which influences the labor flow according to the logic of the market. Among young people, a common reason for switching is that their professional ideas are not fulfilled. They are looking for new opportunities due to job tasks unrelated to their ambitions, the lack of a career path, and the workload. Ac- cording to some managers, there is also a problem with the personal internal attitude of young people, they cannot handle the workload, or they leave be- cause their internal commitment is not adequate (Hazafi and Ludányi, 2022). Central European Public Administration Review, Vol. 22, No. 2/2024 41 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? The number of employed persons is 4 million 706 thousand (KSH, 2022). The un- employment rate dropped from more than 10% to below 4% from 2018 (KSH, 2023). At the same time, the proportion of vacant positions almost tripled. If this is combined with an increasing economic performance, the public adminis- tration may find itself in a strong competitive position for a quality workforce. The signs of this are confirmed by the high fluctuation data (KSH, 2023a). Looking only at the students of the Ludovika University of Public Service (LUPS) Édua Szakács had recently conducted research, and according to the data of the Graduate Track System, in the previous few years, 40 percent of undergraduates and 50 percent of MA graduates remained in the system. The research also showed that students’ motivation decreases during the years of training, which is a dangerous trend. They get disheartened from the course on the go (Szakács, 2022). All this could cause a serious supply problem within 5-10 years. 4.2 Which Factors Affect the Public Administration’s Ability to Attract and Retain Civil Servants? The Russo-Ukrainian war crises and, the European energy crisis, are currently hindering opportunities and remuneration settlement. In the age of artificial intelligence and digitization, the demand for people who perform intellectual work that can be automated and replaced with information technology solu- tions will decrease, while the demand for employees with social skills, empathy, creativity, leadership, analytical, and problem-solving skills will increase (Poór, 2019). A workforce with less knowledge and skills will be needed in the future than at present, and this phenomenon will affect many areas of public service. Public administration is also part of the global labor market, and although it is in a monopoly position in the management and operation of the state, it must compete for good labor on the labor market in the same way as any other ac- tor, domestic or foreign (Kaiser, 2014). This is not typical in many places, there are exceptions and a high degree of awareness, it is more typical that organi- zations ‘wait for the wind to blow the workforce through the door’. They do not place special emphasis on retaining the workforce either. We know that everyone can be replaced, the only question is at what price: knowledge flow- ing out, energy spent on recruitment and training, and money. Quantitative and qualitative problems can be separated from each other. Looking at the figures, the lack of quality workforce is less spectacular, when there is no staffing problem, but the preparation, motivation, and perfor- mance of the employees fall short of what is desired, and this affects the per- formance of the entire organization, as well as the organization and sector (Parlament.hu, 2019). Attracting, selecting, and managing talented employees are crucial for qual- ity public service. It is often observed that strategic HR functions are lacking in public service, which studies from neighboring countries also highlight as a problem (Barrington, 2024). Central European Public Administration Review, Vol. 22, No. 2/202442 Csilla Paksi-Petró It is in the interest of all of us that those working in public administration per- form their tasks efficiently and with high quality. However, this requires the fulfillment of two conditions: if people with a high level of knowledge and good skills enter the sector, and if they stay for a longer period. However, ex- perience shows that although there is enough work in public administration, it is becoming more and more difficult to obtain and retain good employees (Csutorás, 2022). Thus, there is both a labor surplus and a labor shortage. It is worth separating the differences between the capital’s larger cities and the rural administration. Mobility, the willingness to be mobile, and higher employee expectations are particularly high in the capital, less so in the coun- tryside, but there the prestige of the profession is higher, but this is less and less compensating for salaries that are deteriorating with increasing inflation. The competitive environment and Western Europe generally provide higher remuneration and prestige, as well as better advancement opportunities (Eurostat, 2022). Problems related to income are the (relatively) lower in- come provided by the public administration, the (relatively) flat salary range, typically not performance-based remuneration, and the narrow scope for in- come differentiation. In addition to salary, other factors that cause problems are the reduction of previous comparative advantages (stability, fewer work- ing hours), the lower prestige of the public administration, career planning problems, the non-performance-based promotion system, over-bureaucra- tized processes, and the (information) technology lag. Attracting and retain- ing good professionals is becoming more and more difficult and expensive. The lack of skilled labor is now a serious threat to the performance of some institutions, and this will become an increasingly common phenomenon if the public sector’s ability to attract and retain labor does not improve signifi- cantly (and quickly). 4.3 How Attractive is Public Administration for Young People Today, and What Trends Characterize the Development of the Age Composition? There is a lot of talk about the aging society, generational change, and at- tracting young people. The general experience of the 2000s was that Euro- pean societies are aging, and this process is particularly true for the public administration sector. Aging is characteristic in general. A high proportion of young entrants is also typical in certain sectors, mainly in the capital and in frequented specialist areas (OECD, 2019). Its causal system is complex. The question can be easily approached from a sociological point of view. The is- sue of generation management can provide a good handle for this. In the age of globalization, well-educated young people who speak languages are especially mobile and available for emigration abroad. Public administration is not a trendy profession, it is considered underpaid, and it can seem bor- ing, filing, bureaucracy, and too tied up. The previously attractive features of public administration work, security, stability, and extra benefits have now Central European Public Administration Review, Vol. 22, No. 2/2024 43 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? disappeared or are less promising. By being less promising, it is less attractive to a narrower segment of employees. In many ways, the current career system of Hungarian public administration is tailored to Generation X. This generation currently forms the backbone of public administration, and Y is also highly represented. These characteristics are discipline, patience, loyalty, security, stability, low mobility, limited lan- guage skills, and average digital skills (Meretei, 2017). Raised by this genera- tion, Generation Z, who were born between 1995 and 2012, grew up relative- ly well off in the information and consumer society, often in second-, third---, or multi-generational intellectual families. The language skills are high, the standard of living provided by the parents, and the opportunities are exten- sive (Garai and Fodor, 2018). They already received a different message from their parents than Generation X, that the workplace should be valued. We live in a fast-paced world and this generation lacks the discipline, patience, loyalty, and system-level approach characteristic of Generation X. Their value system is different: impatience, fast career, harmony between work and pri- vate life, sustainability, speed, and willingness to change. They are not afraid to change jobs if there are better opportunities either outside or inside the public administration, they do not hesitate much. Flexible working, informa- tion technology, high equipment, and the employer’s brand are important to them. We live in an individualistic society, and supporting individual develop- ment is important to them (Vértesy, 2019). In many cases, public administration can become a forced career either for young career starters or for later entrants (Szakács, 2022). It is typical of young people that they see the sphere as a springboard, they can change within 1-3 years if they are not caught. In the case of later entrants, we can think of those who take up work from a convenience point of view, a typical trend is that employees tired of the pace and grind of the private sector seek public administration, trusting that the pace of work will be slower, the workload will be lower, it will be more compatible with family life, or for any reason (e.g. caring for a relative) are immobile and accept a lower salary as a compromise. The overall picture is mixed, we have very dedicated students who are pre- paring for public administration and persist there (Bright and Graham, 2015). In many cases, they are engaged due to family involvement, or they aspire to a leadership career. The other half of them, on the other hand, say that they do not want to work in public administration, or anywhere else but here, because it is not attractive to them, which they learned about the organiza- tion in the context of their professional practice. As counter-arguments, they indicate the salaries, the strict, fixed system, or that they feel that this is not what they are looking for, this is not what they desire, or this is not what they expected (Győrfiné, 2013). Atypical work, flexible work, which is currently far away in the value system. A study before COVID pandemic showed that more than two-thirds of the ben- eficiaries introduced flexible employment forms in case of workers employed in traditional schedule schemes (5 days per week, 8 hours per day). The most Central European Public Administration Review, Vol. 22, No. 2/202444 Csilla Paksi-Petró preferred flexible employment types were: part-time working and flexi-time, followed by allocated cumulative working hours and distance working (Evalu- ation report, 2019). After COVID pandemic the In 2020, in the European member states 33.7% of employees worked exclusively from home (weekly 38.9 hours), and 14.2% chose the mixed solution, i.e. they spent half of their working time at home and half at the employer’s headquarters, and 52.1% of them worked at other external locations. This figure has increased significantly compared to previ- ous years. From the point of view of maintaining the competitiveness of com- panies, it is necessary to ensure flexible working, which includes the younger generations’ demands expressed by employers (Stréhli, 2023). Salary settlement is only one, but of course, a fundamental factor. In Hungary in 2023 net average earnings without discounts HUF 353,200 (KSH, 2023b).1 Salary increases in ministries and government offices are not automatic but are an option for employers. The salary increase in the public sector should continue - after doctors, nurses, teachers, law enforcement, and soldiers - with government officials working in the central and regional administrations and civil servants working in territorial and local bodies. The aim of the renewal of personnel policy that began in 2010 was to address the deficiencies accumulated over many years and to increase the efficiency and flexibility of public administration. The main trends points towards an open personnel policy, which increasingly prefers flexible, graded salary systems and advancement frameworks over the previous fixed salary system (Hazafi, 2019). There are other longer-term trends. Already in the early 1990s, public admin- istration was characterized by a preponderance of women. Today, their pro- portion has continued to increase, three out of four public service officials are women. The proportion of women working in public administration is almost as high as in education (76.2%) and health care (81%), which are traditionally considered feminine professions (Good State Report, 2018). This is a gener- al phenomenon, also characteristic of Scandinavian countries, for example. However, the proportion of men in managerial positions is still much higher. According to research, public sector workplaces often have characteristics preferred by women, such as job security, more easily compatible and pre- dictable working hours and expectations with raising children, a less compet- itive or stressful work environment, and the feeling of socially useful work (Lovász, 2013). In addition, women may also prefer working in the public sector because they believe that they may face less discrimination due to stricter workplace regu- lations (e.g. salary scales, and promotions). While the wage gap at the na- tional economic level is 16.2% to the detriment of women, the inexplicable wage gap in the public sector is “only” 8% lower. At the same time, if we only look at clerical jobs, the difference immediately jumps to 30%. Examining the 1 https://www.ksh.hu/gyorstajekoztatok/ker/ker2302.html Central European Public Administration Review, Vol. 22, No. 2/2024 45 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? salary distribution, the disadvantage of women is increasing in both sectors, but to a lesser extent in the public sector. That is, the so-called glass ceiling phenomenon occurs in both spheres, but in a different order of magnitude (Szabó, 2018). The feminization of the profession also plays a role in the fact that public ad- ministration tasks require more of the “women’s toolbox” - empathy, willing- ness to care and social skills, diligence, tolerance of monotony, and precision (Gellén, 2011). We can talk about a healthy workplace collective when female and male energies are in balance and the generational composition is diverse. The picture is further colored by the fact that the legal profession, which plays a decisive role in public administration, is also characterized by a pre- ponderance of women. While only 34% of judges were women in the 1970s, by 2014 their proportion had already reached 68%. This ratio seems to be stable in the prosecutor’s offices as well. Only lawyers have a higher propor- tion of men, even if only by a few percent. On the other hand, the situation is reversed for the candidate lawyers, the proportion of women among them is 60-61%, which already corresponds to the proportions established in legal training (Fónai, 2016). To what extent can public administration be consid- ered the area of the legal profession? While in the early 1990s, the majority of specialists were those with econom- ics, commercial, technical, and agricultural qualifications compared to gener- alist lawyers and administrative organizers, in 2013, except for economic spe- cialists, their proportion fell, and that of lawyers increased. The strengthening of the generalist trend is shown even more by the demands of employers. These predict a further increase in the demand for lawyers and public admin- istration professionals (Rixer, 2017). Economic specialists are present in the largest number, and employers demand them in the first place. Every year, 1,200-1,500 people graduate as lawyers, but most of them will not do classic legal work, but will flow into public administration (juratus.elte.hu, 2023). The careers of lawyers, judges, and prosecutors are saturated. One of the typi- cal recruiting markets for lawyers is public administration because they know suitable for official and legal application fields. 4.4 Why it is Worth Choosing the Public Administration Profession Today? Many people previously mentioned predictability, plannability, and security as the attractiveness of public service, but this is still true, even if to a lesser ex- tent than before (Linder, 2018). For those who prefer more predictable work and wages, stable working conditions, and the possibility of longer-term em- ployment, the career may be attractive. A recent study, involving 4620 respondents from PA, shows that in Hungary the vast majority of civil servants working in the public administration are ide- ally looking for stability at work (HR quick report, 2023). After that, the wage is the second most important factor. The next moderately important factors Central European Public Administration Review, Vol. 22, No. 2/202446 Csilla Paksi-Petró are work-life balance, separation of private and work life, amount of stress, and flexible working hours. The least important factors are the possibility of advancement and training, education, and remote work. Public administration education at the higher education level is important in all countries. Public Administration education is very diverse but also repre- sents high quality (Pevcin, 2019). But apart from that, public administration needs a lot of other specialists from various fields of expertise, and parents and students don’t have much idea and information about their career pros- pects in the public sector. The hugely broad field of public administration offers nearly countless pos- sible career paths. The diversity of the work, the multi-layered work, and the wide-ranging task system can be highlighted. There are many different areas of specialization at the local and national level, everyone can find what in- terests them, be it registration, IT, environmental protection, social sphere, taxation, settlement development, legislative drafting, strategy making, in- ternational affairs, and diplomacy. Although public service work is perceived by citizens as having low prestige, the “vocational spirit” of public service workers can still be attractive: to do for the public good, for society, for a better functioning country and for public administration (Gellén, 2021.). 5 Conclusions 5.1 What Could the Public Administration Do to Ensure Competitive Supply? Based on the review of the relevant literature, it can be concluded that fewer scientific publications specifically address the issue of workforce retention in public administration, whereas the private sector has a wealth of literature on this topic. The attractiveness of civil service is influenced by multiple factors, including leadership (professionalization, fairness, and the ability to engage young talent) (Quayed, 2015). Ongoing reforms and a focus on moderniza- tion are crucial for enhancing the appeal of civil service roles in today’s com- petitive job market. Attraction and retention of civil service employees is an ongoing process that requires a holistic approach. Organizations should take into account various factors that contribute to employee satisfaction and engagement to long- term success. In general, organizations should build on feedback and chang- ing organizational needs in addition to regularly assessing and adjusting HR strategies. Retention strategies should be based on a stable financial basis, although there are numerous others are exist and can create a useful tool base for organizations (Hannay and Northam, 2000). Given below are the most popular and important retention strategies that can help solve employee turnover problems. Central European Public Administration Review, Vol. 22, No. 2/2024 47 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? Table 1. The most popular retention strategies in the literature Retention strategies Main components quality leadership well-prepared leaders in every level of the organization working conditions good standard of physical and psychological conditions competitive compensation and benefits competitive salaries and benefits packages to attract top talent, additional perks professional development opportunities opportunities for continuous learning and skill development employer branding strong and positive employer brand that reflects the values, culture, and commitment to employee well-being public relations (PR) use social media, own website to showcase the culture, show insight into daily work life clear job descriptions clearly outlined job responsibilities, qualifications, and expectations in job postings positive work culture an inclusive work culture that values diversity, promotes a sense of belonging flexible work arrangements flexible work schedules or remote work options, which are attractive to many young workers social responsibility commitment to social responsibility and community involvement professional recruitment process efficient and candidate-friendly recruitment process invest in technology commitment to innovation in technology transparent communication transparent about the organization's goals, values, and expectations, about the recruitment process, and what candidates attend job fairs and other events participate in industry-specific events and job fairs to directly connect with potential candidates onboarding programs onboarding processes, mentoring help new employees feel integrated into the organizational culture employee engagement open communication and involvement of employees in decision-making processes feedback on performance set professional goals, recognize and reward outstanding performance exit interviews exit interviews help to understand the reasons behind employee departures and gather feedback for improvement well-being, work-life balance treat them like people, organize well-being programs that focus on physical and mental health Source: Based on the author’s collection, 2024 Central European Public Administration Review, Vol. 22, No. 2/202448 Csilla Paksi-Petró Each sector and organization’s needs are unique and some of the above-men- tioned strategies make more or less sense than others. The biggest challenge of Hungarian public administration HR is currently replacing the older generation, transferring knowledge and practical expe- rience, as well as winning over generations Y, and Z and creating attractive working conditions for them. The literature and practice offer many options to solve replenishment problems. One possible solution is the establishment of scholarships in addition to the existing ones, finding young talents. Talented young people starting their ca- reers, who are highly qualified and speak foreign languages would see public administration as an attractive opportunity after graduation. More scholar- ship programs are needed, such as the Hungarian public administration schol- arship (MKÖ) program (mkoprogram.hu, 2023), which attracts young talents to public administration. We could even target the generation under the age of 18. The public admin- istration career is not deeply in the public mind, which is why the career guid- ance for high school students was established in 2022. Based on research the introduction of public administration knowledge as an optional subject in high school (Köfop Report, 2018). For 11-12 Grades students developed a public administration subject, that during the period of career choice, it ori- ents the students’ attention towards the public administration career. Direct supervisors play a key role in the development of job satisfaction and employee retention. Dissatisfaction with the leader is one of the common reasons for changing jobs. The development of leadership culture is one of the most important factors. If the leader of the team creates an inspiring and suitable environment for work, loyalty increases. Flattening the structure of the organizations, reducing over-bureaucratized processes. Instead of a vertical-function-oriented approach to public adminis- tration, the enforcement of horizontal output-oriented aspects. For this, as a result, unnecessary hierarchy levels are eliminated processes are reduced its over-bureaucratized nature and the participation of the executive level pro- motes customer-oriented administration. Development of digital opportunities, software, and information technology tools. In addition to speeding up administration, modern technology makes the workplace more attractive for the younger generation. In Hungary, the strategic human resource management approach has not been developed in the past 50 years, and it has not become a priority in recent years, which results in the low quality of retention policies and insular solu- tions. The traditionally slower, bureaucratic, and under-resourced organiza- tional system cannot keep up with the expectations of young and/or talented employees living in the accelerated digital world and the world of opportuni- ties in 2024. Would be crucial to pay at least great attention to HRM functions regarding professional recruitment, selection, and retention functions. Central European Public Administration Review, Vol. 22, No. 2/2024 49 Attractions and Repulsions: How Competitive is the Hungarian Civil Service Today? A change in the attitude of the organizations and the creation of several even minor opportunities could increase the attractiveness of the public adminis- tration and the satisfaction of its employees. Public administration has always been considered a special field, its operat- ing principles and processes differ from those of the private sphere in many respects. A wide range of specialized literature has researched, through the explanation of generational change, what HR tools are necessary to attract and retain today’s employees. Some of the proposed tools and measures may differ from the organizational culture of the public administration. In the next empirical phase of the research, it would be worthwhile to investigate what are the main motivators of public administration workers and what are the reasons for their commitment. To examine whether the motivators and com- mitment factors differ from the private sector and whether the specialty of public administration can be seen in this field. Central European Public Administration Review, Vol. 22, No. 2/202450 Csilla Paksi-Petró References Barrington, G. (2024). Talent management in the public sector: Empirical evidence from the emerging economy of Romania. Central European Public Administration Review, 22(1), pp. 199–220. Bright, L. and Graham, C. B. (2015). 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Central European Public Administration Review, 22(2), pp. 55–77 DOI: 10.17573/cepar.2024.2.03 1.01 Original scientific article Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic1 Jana Janderová University of Pardubice, Faculty of Economics and Administration, Czechia jana.janderova@upce.cz https://orcid.org/0000-0002-6425-673X Received: 23. 8. 2024 Revised: 28. 10. 2024 Accepted: 8. 11. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: This paper analyses the impact of the state of emergency de- clared during the Covid-19 pandemic on public administration, specifi- cally focusing on the Czech Republic. It aims to understand the correla- tion between the rule of law, the legitimacy of measures taken during the pandemic, and the public’s willingness to comply with these measures. Design/Methodology/Approach: The paper employs a comparative study design, examining the consistency of pandemic measures with the core principles of the rule of law – legality, proportionality, and legitimate ex- pectations. The study focuses on measures that restrict rights (e.g., right to education) and those that, conversely, grant rights (e.g., decisions on compensation bonuses). The methodology involves an analysis of the rel- evant case law, administrative practice, and data from several databases. Findings: The study reveals frequent breaches of legality and proportion- ality, both in the restriction and granting of rights. Findings indicate that the public’s willingness to comply with measures decreased when these were perceived as illegitimate. This was evident in the Czech Republic where, despite the persistence of most measures, the situation wors- ened during the autumn 2020 and spring 2021 waves of the pandemic. Practical Implications: The findings of this study have significant implica- tions for public administration and policymaking, especially during times of crisis and declared state of emergency. The results highlight the im- portance of maintaining the rule of law and ensuring the legitimacy of public compliance measures. The study suggests that disregard for these principles can lead to a decline in public trust and cooperation, exacerbat- ing the crisis. 1 The paper was presented as a working paper at EGPA 2022 conference organized by the Eu- ropean Group for Public Administration in close cooperation with The Instituto Nacional de Administraçäo (INA, Portugal) in Lisbon, September 2022 as “Rule of Law Principle and Other Principles Breaches during Covid Pandemics – the Case of the Czech Republic” and revisited later with further data available, notably the case law of administrative courts. Central European Public Administration Review, Vol. 22, No. 2/202456 Jana Janderová Originality/Value: This paper provides a unique perspective on the man- agement of the Covid-19 pandemic, linking the rule of law with public compliance. It offers valuable insights for governments and policymak- ers on the importance of maintaining legality and proportionality in their measures, and the potential consequences of their disregard. What sets this study apart is its comprehensive analysis of both cases where rights were reduced (such as limitations of the right to education) and cases where rights were provided (such as the granting of compensation bo- nuses). This dual-focused approach offers a more holistic view of the im- pact of governmental measures during the pandemic. The study’s find- ings contribute to the broader understanding of crisis management and the role of public administration. This comprehensive approach enhances the originality and value of the research, making it a significant contribu- tion to the field. Keywords: compensation bonus, democratic decline, state of emergency, proportionality, right to education, rule of law JEL: K38, H12, H83 1 Introduction During the COVID-19 pandemics governments and administrative bodies had to solve issues of unexpected dimensions. To protect public health, they applied measures with unpredictable results and restricted human rights in previously inconceivable ways. To prevent the epidemics from spreading governments used lockdowns and curfews. Thus, they limited freedom of movement, the right to carry out business, the right to education, the right to healthcare and many more. Part of the public viewed these interventions to be too intense and unnecessarily strict. Simultaneously, the states also intro- duced other measures to compensate people and legal entities for damage caused by these restrictions. These procedures were also questioned, mainly for being discriminatory and not equal. It is understandable that to protect one value in imminent jeopardy (such as health and lives) other values must be restricted. Constitutions of democratic states together with international treaties on human rights protection usu- ally foresee possibility for such limitations notably in the case of emergency, however they strictly set conditions which need to be abided so that the rule of law principle is adhered to. States of emergency usually trigger passing of more power to the executive which is more flexible than the legislative power and thus may react immediately. However, the executive might be tempted to concentrate more power and misuse it for purposes unrelated to the essence of the emergency state. Leaving the misuse of power alone, technocratic gov- ernance in the sense of leaving decision-making to health experts impacting fundamental human rights and freedoms also raises democratic concerns as they are not accountable in the same sense as elected politicians (Grogan, 2022, p.352). The discretion often rested on questionable legal basis. Chaotic and often contradictory measures with immediate effect explained to public Central European Public Administration Review, Vol. 22, No. 2/2024 57 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic in press conferences meant a high level of legal uncertainty. On top of this lack of transparency behind the measures which were not sufficiently justi- fied could not convince the public that they resulted from an evidence-based politics but were rather a product of wishful thinking. It may be summed up that the health crisis brought severe challenges to ensuring high level of ad- herence to the rule of law principles which resulted in a lack of public trust so crucial to effective public governance. The approach to the pandemics was not coordinated by the EU much, the reaction to the crisis was an issue of individual states. Thus, “managing the COVID-19 crisis in Europe has been predominantly shaped by distinct country/ specific approaches instead of (convergent) European action” (Bouckaert et. al., 2020, p. 766). Bouckaert et. al. (2020) show that differences in adminis- trative setting between the Continental Napoleonic model with centralised administration and German federal model with strong Länder governments influenced the modes of crisis management in monitoring, learning, deci- sion/making, coordinating, communicating, leading and recovering capacity. The administrative setting of the Czech Republic, a Central European coun- try which is still not as developed as in the west democracies, has certainly influenced all these modes. Moreover, there was no recent experience with large scale epidemics. Klimovský et al. (2021b) explain that this type of gov- ernments is initially complacent and then shocked by the true nature of the crisis, they are “initially late and slow in reacting before having a strong yet panicky response.” Besides, there is no robustness in policy design (Klimovský et al., 2021c, p. 1320). Consequently, all these modes of crisis management showed deficiencies, some of them larger, some smaller. However, this article will mainly concentrate on the decision-making and its legality. The Czech Republic as many other European countries was poorly prepared for coping with the COVID-19 pandemics. There were not enough protective means available, the homes for elderly had no special protection, the hos- pitals lacked devices for artificial lung ventilation, etc. Still, ultimately with the first spring wave of 2020 the country was successful and belonged to the European countries with the least impact on human lives and health. This suc- cess was due to “fast and comprehensive anti-pandemic measures realized by the government and secondly, the citizen’s compliance with the said meas- ures” (Němec et al., 2021, p. 12.) As Koca posits trust and support of people to the government was one of the key success factors at that initial stage of the first wave in the Czech Republic. Still, the government has been criticised by public for not managing the process transparently. However, the support may change into protests within no time (Koca, 2022, p. 16). The continuation of the pandemic after the summer break emerged as a major issue. The spring measures were generally not perceived as proportionate but rather much too harsh, lacking transparency and being inadequately justified and explained. Thus, the exhausted public was not disciplined any more in autumn. The government instead of using the summertime for preparing robust policies followed the public opinion carefully and despite the numbers of infected growing fast already in August 2020 and to an extent predicting a disaster Central European Public Administration Review, Vol. 22, No. 2/202458 Jana Janderová already in September waited with restrictive measures till the end of regional representatives’ elections in the beginning of October. Later the strategies were prepared, and measures were often declared without any consultations with stakeholders. “During the second phase it became fully evident that the top leaders were not able or maybe even unwilling to engage all the relevant stakeholders (especially experts) and listen to them” (Klimovský et al., 2021a, p. 98). Thus, the results were of the poorest with 29.704 deceased with COV- ID-19 in the period of October 1st, 2020, till May 31st, 2021.2 New regulatory regimes that had significant impact on lives of all individuals such as availability of public services including education and governmental financial support to only specific groups of entrepreneurs were introduced with minimum of public and parliamentary scrutiny. Thus, the judicial review of such governmental measures was crucial. This article seeks to analyse the role of administrative courts in the sense of institutions providing not only effective protection to individuals but rather as those institutions protect- ing values and principles such as legality, proportionality, transparency and further that are fundamental to the modern democratic states governed by rule of law. The pandemics and its impact on lives has been studied intensely, but there is still a need for the research of the administrative justice role. Sunkin and Marsons claim that “...the pace of change has meant that there has been no space for careful assessment of the broader and longer-term implications of the pandemic from an administrative justice perspective. This is something that will be necessary” (2022, p. 658). Vyhnánek et al. have stud- ied the role of constitutional courts positing that during a very specific situa- tion of pandemics courts may be faced with challenging issue of how broad their review should be (2024, p. 386). The same could apply to administrative courts. Ondřejek has studied the Czech Supreme Administrative Court’s case law dealing with justification of extraordinary measures adopted pursuant the so-called Pandemic Act (Ondřejek, 2024). Compared to his valuable study (published in Czech, therefore available to a limited audience), this article cov- ers a broader set of measures issued under different legislation. Moreover, different methods are used. The paper utilizes a comparative study approach to assess how pandemic measures aligned with the fundamental principles of the rule of law, including legality, proportionality, and legitimate expectations. It examines both meas- ures that restrict rights, such as the right to education, and those that confer rights, such as decisions on compensation bonuses, in order to see whether the breaches appeared in both situations or in case of restrictions only. The methodology involves reviewing relevant case law, administrative practices, and data from various databases. Thus, the article explores the critical importance of adhering to the rule of law during times of crisis. Beqiraj and Moxham conclude that the trend of gradual rule of law decline in countries across the world has become particu- 2 The data provided by the Ministry of Healthcare at https://onemocneni-aktualne.mzcr.cz/ covid-19. The total number of deceased with COVID-19 as of 16th August 2022 is 40 660. Central European Public Administration Review, Vol. 22, No. 2/2024 59 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic larly concerning and apparent in the 2021 measures (2022, p. 162). Given that emergency situations, such as those experienced during the COVID-19 pan- demic, may reoccur, it is crucial for public administration bodies to reflect on their actions and ensure they align with the core values of the rule of law. By doing so, they can guide the most effective responses to future emergen- cies. Adherence to the core value of rule of law can guide the most effective responses to emergency. The article advocates for preparing for future crises by building on the lessons learned from the COVID-19 pandemic, ensuring that responses are both lawful and effective. 2 Methods The main research question is how the principle of rule of law together with proportionality, legal certainty and other intertwined principles were influ- enced by the measures taken by the government and other administrative bodies during the pandemic of COVID-19 in the Czech Republic. The research intends to find whether the legality and proportionality principles were breached both by measures restricting people’s rights and in opposite situa- tion when people were granted new rights – compensation bonuses. For the purposes of this qualitative research, several different methods were applied as relevant. First, a comprehensive overview of the principles of legality and proportionality and the impacts of emergency states on the aforementioned principles is carried out through literature review and using normative-ana- lytical method. Second, through systematic approach, the author analyses relevant statutory laws dealing mainly with the empowerment to impose re- strictions by legal rules adopted by the government or the Ministry of Health through measures of general nature. As the restrictions of human rights were numerous, the analysis of specific issued measures is restricted to one area. The measures of general nature closing schools were selected as the right to education was affected by these closures intensely in the Czech Republic. Compared to other European countries the distance-learning lasted for long- er periods. Third, to demonstrate the impacts of the administrative bodies practice in providing compensation which is generally perceived positive due to granting new rights, the procedures of tax authorities are analysed. The case law of both the Czech Supreme Administrative Court and Constitutional Court interpreting these laws is analysed in the study where available. This case law is studied using analogy, comparative method, and inductive reason- ing. In the conclusion the situations of rights restrictions and compensation grants are compared, and conclusions drawn to guide the most effective re- sponses to future emergencies. 3 Literature Review The rule of law principle is a fundamental and consensual element of Europe’s constitutional heritage as a body of principles inherent both to national legal orders and EU and ECHR legal frameworks (Pech, 2022, p. 127). As an umbrel- la principle it comprises of several elements as legality, separation of powers, Central European Public Administration Review, Vol. 22, No. 2/202460 Jana Janderová protection of fundamental human rights and judicial review. It encompasses elimination of arbitrary authority, the misuse of power by the executive. The majority of the scholars agree that the underlying value is the idea of con- straint (Janderová, 2019, p. 117). The role of administrative courts exercis- ing the review of the administrative authorities’ decisions and other acts thus consisting in preventing misuse of power by the executive, is of fundamental importance. Therefore, the Rechtstaat as the ideal of a fully democratic state respecting and protecting human rights is a value in itself worth of protection even during the emergency states. The rule of law together with the principles of proportionality and legal cer- tainty are core principles in limiting the administrative bodies’ powers. The principle of legality requires that all administrative action has to have a legal ground and that administrative bodies act within the binding rules already enacted both in statutory laws and secondary regulations. “Even under a nar- row definition, the rule of law clearly and necessarily implies that administra- tive implementation occurs within the framework established by legislation, that subordinate legislation may be made by the administrative branch only where there is an enabling power in primary… law …, and that such subor- dinate legislation must be within substantive limits and conform with proce- dural requirements of higher law.” (Hofmann, 2013, p. 150) The principle of proportionality forms a protective shield from excessive administrative acts. “Proportionality is a method for determining whether the reasons advanced by the state for limiting a specific fundamental freedom outweigh the val- ues which underlie the constitutional commitment to the protection of that freedom” (Addink, 2019, p. 78). Legal certainty “provides expression to an im- portant assertion of the rule of las that those subject to the law must know what the law is so as to plan their action accordingly.” (Hofmann, 2013, p. 173) Thus, the rules must be clear, understandable, and consistently applied. Legitimate expectations should be protected so that the subjects of law may rely on a reasonable assumption that the situation created by the rules and administrative practice will remain unchanged (Addink, 2019, p. 78). Further- more the decisions, measures and in broader sense public policies should be transparent so that adherence to other values may be checked by public. It is evident that the problems resulting from inefficiencies inherent in public poli- cies themselves and inefficiencies arising during their application can be elimi- nated to some extent by sufficient information support (Fuka, 2022, p. 2). All these principles support one another. They are binding on the state in- stitutions so that rights of individuals and legal persons may be protected. “Fundamental principles, such as the principles of legality, proportionality and equality, are the product of societal development over time and are inextri- cably linked to the promotion and protection of human rights” (Sever, 2015, p. 251). They serve well as ground of judicial review and when breached the courts may take appropriate corrective action such as quashing an administra- tive decision. However, the courts usually tolerate some level of disruption, and the breach must reach some level of intensity depending on the specific context of the individual case they discuss. Supposedly, the states of emer- Central European Public Administration Review, Vol. 22, No. 2/2024 61 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic gency during a pandemic situation create a context which will find the courts more tolerable to minor breaches. Vyhnánek et al. explain that due to a great- er degree of epistemological limits of courts in the context of pandemics a vigorous test of proportionality might not be a reasonable approach. Courts must appreciate and reflect the empirical uncertainty of public authorities. They are unable to determine whether the public authority had a “better al- ternative” (more effective and less human rights harming) at their disposal. Thus, courts have generally drifted towards a deferential review. However, they claim that courts may not refrain from reviews, there needs to be some level of judicial intervention granting review the existence and quality of em- pirical evidence used. A suitable approach may be seen in the “semiprocedur- al review” encompassing a shift in the structure and the focus of the review and a slight shift in the test of proportionality (2024, p. 395–397). The principle of the rule of law remains applicable to public administration, even during a pandemic and despite any emergency measures that have been adopted (Horvat et al., 2021, p. 138). However important it is to take immedi- ate and sufficient measures to cope with urgent situations of imminent dan- ger to human health and lives, it is also important not to neglect the value of rule of law and democracy. To be more flexible, states adopt decisions de- claring the states of emergency. These decisions typically involve transferring powers form the parliament to the government and allow for elimination of control mechanisms that. Under normal circumstances, safeguard the demo- cratic nature of governance but, on the other hand, prolong processes. The emergency provisions entrust the executive with the power to make policy declarations that immediately become binding. Thus, the states of emergen- cy should be used cautiously and scarcely only when it is necessary and for a limited duration, as short as possible. The governments may be tempted to misuse they newly acquired powers for unrelated purposes. This is more significant in countries that are facing a decline in democratic values. The pro- cess of autocratization that we face in at least some of the Central European countries is gradual, often unhurried, and thus difficult to discern for the public. Lührmann and Rooney (2020) show that “democracies are 75 percent more likely to erode under a state of emergency than without, marking a sub- stantial increase in the probability of democratic decline”. (p. 3) It was tempt- ing also for the Czech Republic government to misuse the emergency state. “On its session agenda, the Government also included an item proposing the exclusion of trust funds from the implementation of an EU directive on the identification of beneficial owners (which may have been an attempt to assist the prime minister with his well-known conflicts of interest when obtaining money from European Structural and Investment Funds). A bill that would allow military intelligence to monitor internet activity was also debated. Fur- ther, the Government proposed amending the Act on the Rules of Budget- ary Responsibility, allowing it to enact measures without approval from the National Fiscal Council” (Špaček, 2020, p. 265). Thus, although the rule of law standards may be adjusted during states of emergency, it is imperative that these adjustments are bounded by clear limitations to prevent potential misuse and to safeguard fundamental rights In its Rule of Law Checklist, the Central European Public Administration Review, Vol. 22, No. 2/202462 Jana Janderová Venice Commission detailed specific criteria for exceptions to the principle of legality during emergency situations. Above all, the derogation from certain rights have to be proportionate the possibilities for the executive to derogate from the normal division of powers in emergency circumstances also limited in duration, circumstance and scope. Judicial review of the existence and du- ration of an emergency situation, and the scope of any derogation must be available (Venice Comission, 2016, p. 13). Therefore, it is necessary to stress the role of the court review in protecting from autocratization. Nevertheless, the mere declaration of the state of emergency need not erode democratic foundations of the state. Their use needs to be constraint to the actual threats, the measures need to be proportionate, and they must termi- nate as soon as the threats become less intensive or immediate and they may be coped with by usual legal means. Let me analyse the legal instruments used to cope with the COVID-19 pan- demics. The state of emergency was declared by Government Resolution No. 69/2020 Coll. for a period of 30 days from March 12th, 2020, for the whole territory of the Czech Republic “because of the threat to health in connection with the detection of the occurrence of the coronavirus (referred to as SARS CoV-2) on the territory of the Czech Republic”. As to the formulation of rights which were limited, the government referred to a separate government reso- lution (“The government I. orders in the sense of Sec. 5 letter a) to e) and Sec. 6 of Act No. 240/2000 Coll., on crisis management...to solve the crisis situa- tion that has arisen, crisis measures, the specific implementation thereof will be determined by a separate resolution of the government.”). The state of emergency was extended twice with the consent of the Chamber of Deputies (the lower house of the Parliament) and lasted until May 17th, 2020. During the state of emergency, the state used mainly the following three legal instruments to cope the risk of the pandemic and to deal with its consequenc- es - a) statutory laws, b) crisis measures of the government and c) extraordi- nary measures of the Ministry of Healthcare. (Wintr, 2020, p. 282). The courts were asked for review of these extraordinary measures since the beginning of April and the first four of them were quashed by the decision of the Municipal court in Prague (administrative court of first instance) file No. 14 A 41/2020 of 23rd April 2020. The Constitutional Court rejected several complaints in May (decisions Pl. US 7/20, 8/20, 10/20, 12/20, 13/20, and 15/20). The legality of individual measures (in fact their constitutionality) depends primarily on their compliance with the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the “Charter”) which stipulates those fundamental rights must not be suspended even during a state of emergency. Although, they may be limited, but only under the conditions set by Article 43 of 3 Article 4 of the Charter reads: “(1) Duties may be imposed only on the basis, and within the bounds, of law, and only while respecting the fundamental rights and freedoms. (2) Limita- tions may be placed upon the fundamental rights and freedoms only by law and under the conditions prescribed in this Charter of Fundamental Rights and Freedoms (hereinafter “Char- ter”). (3) Any statutory limitation upon the fundamental rights and freedoms must apply in the same way to all cases which meet the specified conditions. (4) When employing the provisions Central European Public Administration Review, Vol. 22, No. 2/2024 63 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic the Charter, enshrining the reservation of the law. The relationship between the state power and individuals is also governed the provisions of Article 2, paragraphs 2 and 3 of the Charter containing the reservation of statutory laws.4 For the special situations during emergency states the Constitutional Act No. 110/1998 Coll., on Security of the Czech Republic, Article 6, paragraph 1 stipulates that the “State of emergency can be declared only for a certain period and for a certain territory, stating the reasons. At the same time with the declaration of a state of emergency, the government must define which rights set forth in the special act and to what extent are limited in accordance with the Charter of Fundamental Rights and Freedoms and which duties and to what extent are imposed. The details are set by a special statutory law.” Thus, it follows that standard means of imposing duties is a statutory law. However, during a crises other means are to be tolerated although the Con- stitutional Act No. 110/1998 Coll. is not absolutely clear about that. The laws that imposed restrictions were passed in the state of legislative emergency which allows for a much quicker procedure. However, this article will leave those aside and concentrate on the restrictions imposed by the government and the Ministry of Healthcare. The special statutory law foreseen by the Constitutional Act No. 110/1998 Coll. is the Act No. 240/2000 Coll., on crisis management (hereinafter the “Crisis Act”). Under its Sec. 5 it lists the fundamental rights and freedoms the government may “for the necessary time and to the necessary extent” limit by the measures listed in Section 6 of the Crisis Act. Most of the gov- ernment’s crisis measures referred to in Sec. 6 par. 1 letter b) of the Crisis Act contain the prohibition of entry, residence, and movement of persons in defined places or territories. The Constitutional Court in the resolution Pl. ÚS 8/20 dealt in detail with the legal nature of the government act declaring the state of emergency, as well as individual crises government measures. The court concluded that the very declaration of a state of emergency is not judicially reviewable. However, for the individual government crisis measures such conclusion would be unsus- tainable. Judicial review of measures that obviously interfere with fundamen- tal rights and freedoms, may not be defied in a democratic state governed by the rule of law principle. According to Art. 36, par. 2 of the Charter the review of the decision relating to fundamental rights and freedoms under the Charter must not be excluded from the jurisdiction of the court. Thus, it was crucial to analyse the legal nature and legal force of the government’s crisis measures to decide which judicial review is applicable (i.e., by administrative courts or by the Constitutional Court). Through judicial and academic discus- sions four possible variants crystallized: a) legal regulations with the force of concerning limitations upon the fundamental rights and freedoms, the essence and signifi- cance of these rights and freedoms must be preserved. Such limitations shall not be misused for purposes other than those for which they were enacted.” 4 Article 2, par. 2 and 3 of the Charter reads: “State authority may be asserted only in cases and within the bounds provided for by law and only in the manner prescribed by law. (3) Everyone may do that which is not prohibited by law; and nobody may be compelled to do that which is not imposed upon her by law.” Central European Public Administration Review, Vol. 22, No. 2/202464 Jana Janderová as statutory law, b) normative legal acts - secondary legal regulations, c) meas- ures of general nature, and d) the legal nature of the act may be different according to specifics of the situation (Wintr, 2020, p. 287). The measures of general nature are acts combining the character of administrative decisions and by-laws. Differently from the by-laws (and similarly to the administrative decisions) they may be subject to a review of administrative courts initiated by affected individuals. They are specific in the case they regulate and general regarding the subjects to whom they apply. The municipal zoning plans can be mentioned as an example. They are used to regulate the type of buildings and infrastructure which may be erected on the municipality’s territory and thus are specific in the case. The question with the government measures was whether the pandemic situation created such specific situation so that they could fall in the category of the measures of general nature. The Mu- nicipal Court in Prague held in its judgment file No. 10 A 35/2020 of May 7th, 2020, with references to jurisprudence and literature that the sign of specific- ity of measures of a general nature can be given by their relationship to “the specific event that is the COVID-19 disease pandemic”, while (with reference to Constitutional Court decision Pl. ÚS 14/17) “when assessing the material features of the act of public administration in case of doubt, it is appropriate to lean towards a measure of a general nature, not to normative legal acts (by-laws).” Moreover, neither the Constitutional Act on Security of the Czech Republic nor the Crisis Act empower explicitly the government to issue nor- mative legal acts. An argument in favour of measures of general nature could be also found in Sec. 94a of the Act No. 258/2000 Coll., on the Protection of Public Health (hereinafter the “Act on Protection of Public Health”), according to which the Healthcare minister’s extraordinary measures which are quite similar in content are explicitly marked as measures of a general nature, with certain exceptions to their issuance procedure. The only legal basis to restrict rights and impose duties in times when the emergency state, which allowed for the above-described government emer- gency measures, was not proclaimed were the epidemic emergency measures issued by the Ministry of Healthcare. They were issued as acts in the event of an epidemic or facing the risk of its occurrence pursuant to Sec. 69 par. 1 of the Act on the Protection of Public Health. In the first phase - the 2020 pandemics, probably most common and their legality was questioned. Later, in February 2021 the Act No. 94/2021 Coll., on Extraordinary Measures dur- ing the Epidemic of the COVID-19 Disease (hereinafter the “Pandemics Act”) was enacted so that more appropriate measures could be taken in time when the emergency states were not declared by the Parliament. The explanatory note to the Pandemic Act explicitly admitted that the Act on the Protection of Public Health did not offer a sufficient range of tools for managing the COVID-19 pandemics within the framework of the extraordinary measures defined there. “At the same time, the regulation of the process of issuing these measures was also very laconic and given that these measures could have nationwide scope and therefore nationwide effects, their legitimacy could be questioned due to the way they were adopted, and the possibility of arbitrariness could be objected. They were issued by the Ministry of Health- Central European Public Administration Review, Vol. 22, No. 2/2024 65 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic care as measures of a general nature without a procedure for the proposal of measures of a general nature.” To demonstrate the difficulties to comply with the principle of legality the Ministry of Healthcare extraordinary measures is- sued pursuant to Sec. 69 par. 1 of the Act on the Protection the measures closing schools will be analysed below. 4 Results 4.1 Measures of General Nature Closing Schools During the Pandemic To prevent the spread of the COVID-19 disease the Ministry of Healthcare decided to ban the personal presence of pupils and students at Czech el- ementary, secondary, higher vocational schools and universities and educa- tional facilities from March 11th, 2020, until further notice by measure (No. MZDR 10676/2020-1/MIN/KAN) on March 10th, 2020. This measure did not originally apply to kindergartens and elementary art schools, but as of March 12th, 2020, it was replaced by Government Resolution No. 74/2020 Coll. on the adoption of a crisis measure. With effect from April 20th, 2020, the pre- vious government resolution was repealed and replaced by an extraordinary measure of the Ministry of Healthcare (No. MZDR 16184/2020-1/MIN/KAN) dated April 15th, 2020. In response to the judgment of the Municipal Court in Prague, this extraordinary measure was also cancelled and replaced by Gov- ernment Resolution No. 198/2020 Coll. with effect from April 24th, 2020, to April 27th, 2020, and Government Resolution No. 197/2020 Coll. effective as of April 27th, 2020. From April 20th, 2020, the measures began to be gradu- ally relaxed, first for universities, 9th grade elementary school students and high school graduates, and then for the rest of the students. All the children could return to schools on May 25th, 2020. Their participation in face-to-face classes was voluntary. On October 12th, 2020, the government decided to re- ban the personal presence of students at universities, secondary and elemen- tary schools, including first grade, with effect from October 14th, 2020. All the schools were not opened at the same time, some of the children could return in April, some in May 2021. Exceptions applied only to the children of medi- cal personnel and other key civil servants such as firemen and police. Thus, the period when the schools were closed was one of the longest in European countries. The new government promised not to close all the schools gener- ally and kept the promise in the school year starting in autumn 2021. It was up to regional hygienic authorities to decide on individual schools’ closures depending on the pandemic situation these individual schools were facing. These measures limited indisputably all the affected pupils and students in the exercise of their right to education, which is guaranteed by Article 33, par.1 of the Charter.5 Limitation of the right to education consisted in the fact 5 Article 33 par. 1 of the Charter reads: “Everyone has the right to education. School attendance is compulsory for the period specified by law.” According to the decision file No. Pl. ÚS 16/14 of the Constitutional Court of January 27th, 2015, also the kindergarten children enjoy this right. Central European Public Administration Review, Vol. 22, No. 2/202466 Jana Janderová that teaching was changed from face-to-face to distance form, i.e., to a less comprehensive form. The kindergarten children usually had no contact with the school, the lower classes of the elementary schools enjoyed one or two on-line hours per day, sometimes not even that much. The children from fami- lies that could not afford internet connection were not educated at all. Thus, the social differences deepened even more during the pandemics. Several complaints were discussed by courts. They first had to decide who might file the action and concluded that it is the children (represented by their parents), the schools (it is not decisive that the schools are also in the position of administrative authorities when they decide on the pupils and stu- dents, in this situation their right of a legal entity to carry out the activities they were created for could have been infringed), and also the municipalities that establish schools and might be affected in their right to self-government. However, the main question was whether the Ministry of Healthcare was em- powered by the Act on the Protection of Public Health and/or the Pandemic Act to close the schools in the whole republic. The Supreme administrative court found in its decision file No. 10 Ao 2/2021 that, based on Sec. 69 par. 1 letter b)6 of the Act on the Protection of Public Health, the Ministry could not close kindergartens and primary schools across the board or limit their operation. Most of the other letters of this provision (Art. 69) aim at narrowly defined orders or prohibitions (ban on the sale of suspect food, ban on the use of water, setting aside beds or directly objects for the isolation of people, carrying out disinfection), which are intended to contribute to a better man- agement of specific outbreaks of the epidemic. However, letter b) is worded rather broadly. The court explained that: “It affects a large number of com- mon areas of life and at the same time intensively affects the rights and freedoms of the addressees (including constitutionally guaranteed rights and freedoms, such as the right to education or freedom of movement). The wording of this provision is also different: the other letters bind orders and prohibitions to things, water sources or places - whereas letter b) is aimed di- rectly at persons, i.e. specifically natural persons suspected of infection. The other letters have a relatively narrow material scope, but a relatively broad personal scope (the command or prohibition affects anyone who is in posses- sion of those things, water sources, etc.), while letter b) has a broad material scope (restrictions on travel, cultural performances, sports events, gather- ings in general; closure of medical and social facilities, schools, hotels and restaurants), but a narrow personal scope, as it only affects natural persons suspected of infection.” 6 According to Sec. 69 par. 1 letter b) of the Act on the Protection of Public Health, emergency measures in the event of an epidemic or the risk of its occurrence are prohibition or restriction of contact between groups of natural persons suspected of infection with other natural per- sons, in particular restriction of travel from certain areas and restriction of transport between certain areas, prohibition or restriction of festivities, theatre and film performances, sports and other gatherings and markets, closure of medical facilities one-day or inpatient care, fa- cilities for social services, schools, school facilities, recovery events, as well as accommodation establishments and food service establishments or restrictions on their operation. Central European Public Administration Review, Vol. 22, No. 2/2024 67 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic Nevertheless, the Ministry of Healthcare did not state anything in the grounds of the extraordinary measure, from which it would follow that the focus of the infection is the entire Czech Republic. The Supreme administrative court rejected the idea that the ministry could issue blanket measures pursuant to Sec. 69 par. 1 letter b) of the Act on the Protection of Public Health for preventive reasons already in its judgment file No. 6 Ao 22/2021. In another judgement, file No. 8 Ao 16/2021-124, the court summed up that by its very nature, Sec. 69 par. 1 letter b) is intended rather for time- and place-limited anti-epidemic measures, which are conditioned by an increased suspicion of the occurrence of infection in a specific group of persons. Theoretically, the pandemic situation could be that bad that anyone in the whole republic might be suspected of infection. However, the grounds of the measure would have to provide facts for such conclusion. In fact, the Ministry of Healthcare grounds its measures very laconically, without further clarification, they spoke of high numbers of infected and hospitalized persons. Such grounds in itself would be difficult to accept. Therefore, the Supreme administrative court decided consistently that the Ministry of Healthcare acted beyond its competence when it issued the crisis measures closing the schools broadly in the whole republic without providing strong grounds. The Ministry of Healthcare competences in the Pandemic Act regarding limi- tation of school operation are enshrined in Sec. 2 par. 2 letter f). However, this provision concerns only universities, neither kindergartens nor elemen- tary and high schools are included. Thus, the only legal ground rests in the above-mentioned provision of the Act on Protection of Public Health, which is not intended for widespread measures. 4.2 Compensation Bonuses The compensation bonus represented one of the key state supports ad- dressed to individuals and legal entities affected by the Covid-19 pandemic in their business activities. At the same time, it meant a considerable increase in the tax authorities’ activity. In view of the expected large number of applica- tions for compensation bonus, the government thought it was key to entrust with payments an institution capable of handling this task from technical and personnel side. The choice of tax authorities for compensation bonus admin- istration was influenced by the fact that they keep rather numerous staff and are equipped with robust material background. They also have access to the income of individuals to which the compensation bonus was linked. How- ever, this resulted in choosing the procedural legislation used normally by tax authorities for tax proceedings (thus well known to the clerks), which is rather specific. The procedure of granting the compensation bonus was thus regulated by the Act. No. 280/2009 Coll., the Tax Procedure Code, a proce- dural regulation inherently unsuitable for the payment of monetary benefits to their addressees. This choice brought about an unusually high number of deficiencies or deviations from the classic tax procedure which should have been adhered to. Central European Public Administration Review, Vol. 22, No. 2/202468 Jana Janderová Unfortunately, due to inconsistent decision-making which appeared in a se- ries of cases, the addressees of this support were affected in their legal cer- tainty. It must be admitted that unauthorized, unjustified, or even fraudulent requests were filed often. Still, the tax authorities interfered with rights of addressees in many other situations. The administration of the compensatory bonus required three legal amendments over a period of two years and sever- al interpretive turns by state institutions, often in response to expert stimuli, or due to case law of administrative courts. This may be demonstrated on the case of payment of compensation bonus for the autumn period of 2020, this institute of the deadline restoration was applied purposefully with the intention of retroactively correcting the politi- cally inappropriate wording of statutory law. Interpretation and application practice of the coronavirus bonus by all relevant public authorities of the 2020 autumn Act7, was such that restrictive or prohibitive measures did not apply to the operation of a taxi service. Applications submitted by taxi operators for the payment of compensation bonus were assessed by the financial ad- ministration as not entitled to the payment of compensation bonus, because the restriction or prohibition of the taxi service was not the subject of the compensation bonus. Proceedings commenced by submitting these applica- tions, they were for this reason ceased. This decision-making was criticized by taxi operators who tried to change the attitude of the public administra- tion. It should be noted that in the above period in many places the taxi ser- vice worked. As a result of this pressure the government decided to reassess its position and grant the compensation bonus to the taxi drivers. By its the Resolution No. 53 issued on 18th January 2021 the government adopted a crisis measure, by which, with effect from 19th January 2021, explicitly con- firmed that the operation taxi service vehicles or other individual contractual transport of people is not prohibited any more. In this way, the government, in conjunction with the interpretation opinion of the Ministry of Healthcare of the Czech Republic, tried to state retroactively that the operation of the taxi service was prohibited until 18th January 2021. The aim was to retroactively achieve the state that it was possible for the taxi services operators to apply for a compensation bonus payment by 18th January 2021. The change in this government opinion was interpreted by the tax administra- tion in such a way that if some taxi operators could not apply anymore because of the time lapse (originally the application was to be submitted within a pe- riod of 2 months after the end of the bonus period), these applicants could apply for restoration of the deadline. Thus, due to this retroactivity, some ap- plications were not dealt with in accordance with the principle of legality. Although there have been quite a lot of appeals against the tax authorities’ decisions and some have been challenged in court, only a limited number of court cases have been decided so far. The judgment of the Regional Court in Pilsen No. 77 A 27/2021-199 as of 12th May 2021 may serve as an example. 7 Act No. 461/2020 Coll., on Compensation Bonus in Connection with the Ban or Restriction of Business Activity in Connection with the Occurrence of the SARS CoV-2. Central European Public Administration Review, Vol. 22, No. 2/2024 69 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic Applicants objected to the practice of tax authorities when instead of an im- mediate compensation bonus payment sent to their accounts after the ap- plication was delivered to the tax authority, they first verified whether a num- ber of substantive legal conditions for entitlement to it were fulfilled. Thus, they have asked for evidence to be provided by applicants. In the case which appeared before the Plzeň Regional Court (administrative court of first in- stance) the court found that in doing so, the tax authority unlawfully withheld the compensation bonus as according to the law the compensation bonus is considered to be assessed on the day of submission of the application. There- fore, if the application contained all formal requirements, the compensation bonus was assessed on the date of its submission and the tax administrator had no other option than to pay it out. Possible verification of fulfilment of the substantive legal conditions of the claim could lead to the compensation bonus return only after the payment of it, as a result of the “procedure to remove doubts”, or a tax audit. There were other incorrect applications of the law complained by the ap- plicants. The most questionable practices of tax authorities in the course of compensation bonus procedure can be summed up as (1) guiding applicants to withdraw the application for compensation bonus, so that the tax authority does not have to file a negative decision, (2) wrongful application of restoring the deadline as if it did not lapse, (3) repeated decision-making in the case of an identical request originally rejected, (4) possibility of submitting a request for deadlines reversion submitted by e-mail without an electronic signature, (5) failure to send a decision on reversing the deadline, (6) suspension of the proceedings according to the erroneous provision of the Tax Procedure Code, or simply through informal communication with the applicant, (7) verification of the compensation bonus entitlement before the payment thereof when it was not foreseen by law, (8) termination of proceedings in the event of non- substantiation of the application by stating conditions for compensation bo- nus entitlement, (9) limited grounds for appeal against the decision to cease the proceedings (impossibility to appeal to the merits of the case), (10) tax assessment when compensation bonus or part thereof was returned without a reasonable assumption. 5 Discussion The findings of this comparative study reveal significant breaches of funda- mental rule of law principles, including legality, proportionality, lack of justi- fication, and discrimination. These breaches were evident in both scenarios where rights were restricted and where rights were granted. For instance, the decision to close schools across the entire republic, rather than target- ing specific regions most affected by the pandemic, demonstrated a lack of proportionality and justification. On the other hand, the allocation of com- pensation bonuses for business closures highlighted issues of unequal treat- ment and breaches of legality, particularly due to procedural arrangements that were more suited to tax collection than to providing support. This com- Central European Public Administration Review, Vol. 22, No. 2/202470 Jana Janderová parative analysis underscores the necessity for decisions to be justified with clear, evidence-based justification to uphold the principles of justice and fair- ness. The importance of sound justification is paramount not only to ensure that decisions are based on evidence rather than arbitrary reasons but also to maintain transparency and public trust. When the government’s actions are transparent and well-justified, it reassures the public that these measures are sensible, effective, and worthy of adherence. The principle of legality demands that the legislature adopt binding rules and the government adheres to them when taking any measures including by- laws, decisions, and other acts. The government must act in accordance with the effective statutory law and may not exercise power outside the limits set by these laws. The legislator is bound by the Constitution which also means that the values protected by it may not be trampled down. Human rights may be restricted only to certain limits and under conditions set by the Con- stitution. Generally, these limitations should be carried out only by statutory laws and not by measures taken by the executive. However, the emergency states foreseen for situations endangering human lives and health or simi- lar values the society wishes to protect allow for immediate governmental actions. Nevertheless, it must be clear that the crisis government measures can only be an extraordinary and short-term response to a crisis. They may not become a permanent part of the legal order or aspire to it. Otherwise, it would lead to democratic decline and autocratization. Longer-term meas- ures of a general nature, especially if they interfere with fundamental rights and freedoms can only be enshrined in a democratic legal state by law. Fur- ther, even the exceptional and short-term measures must respect at least some minimum standards. Even if the human lives and health are values of fundamental importance, there are other values which still need to be pro- tected as well. The conflict between the protected values must be solved in accordance with the principle of proportionality. The measure should be transparent, the grounds must be explained to the public, so that they may be checked. The changes should not be chaotic and unreasonably unpredict- able so that the people may enjoy at least some level of legal certainty, and thus plan their future lives. If these conditions are not met, it ends in disillu- sion and loss of public trust in their government as could be demonstrated by the changes of the people’s willingness to adhere to pandemic rules in spring and later in autumn 2020 in the Czech Republic. It should also be noted that rules with the same or similar content were adopt- ed both as crisis measures of the government, and extraordinary measures of the Ministry of Healthcare. The government’s crisis measures are subject to some extent to parliamentary control. In the Chamber of Deputies, in case of serious dissatisfaction with governmental actions, they may decide not to extend or even cease the state of emergency at any time, thereby ending the validity and effectiveness of all government crisis measures. The same did not apply to the measures of the Ministry of Healthcare as they were not connect- ed with the state of emergency, because they were adopted in accordance with different statutory law (the governmental measures under the Crisis Act Central European Public Administration Review, Vol. 22, No. 2/2024 71 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic and the ministerial measures under the Act on Protection of Public Health which is primarily not intended for a crisis of such extent). Also, the ministerial measures did not require the consent of the whole government which some- times meant that the Ministry of Education, Youth and Sports responsible for schools was not even notified of the Ministry of Healthcare measures closing schools. In this light the possibility of court review so that the executive does not misuse its power and interfere with rights of individuals in an unlawful or unproportionate manner seems to be even more important. To the Rechtstaat, the role of administrative courts contributing to checks and balances and preventing misuse of power by the executive and unlaw- ful or unreasonable interference with rights, is of fundamental importance. This court review was crucial when it was obvious from the content of the governmental and ministerial crisis measures that they probably do not have sufficient legal basis and that they are not grounded enough to prove that fundamental rights and freedoms are limited only to the necessary extent. It was necessary to insist that they had to be judicially reviewable because they showed (sometimes manifested) possible interference with fundamental rights and freedoms. The conclusion on the nature of the government crisis measures was important so that the courts could exercise their power. Mak- ing clear that they are issued in the form of measures of general nature made the administrative courts’ review possible. Moreover, the Ministry of Healthcare systematically avoided judicial review of its measures by their constant cancellation and issuing of new measures in similar wording. The administrative courts sometimes reacted by not allowing the amendment of the proposal and rejecting it of the proposal. However, the Pandemic Act later in February 2021 solved even this ministerial miscon- duct. The measures of general nature issued by the Ministry of Healthcare may be passed only after the previous consent of the government, they may be reviewed by the Supreme administrative court and this review may take place even if such measure was cancelled by the ministry before the court could issue its decision. However, Ondřejek’s study underscores the signifi- cant role of further administrative court reviews. As of October 24, 2023, the Supreme Administrative Court had adjudicated 157 cases involving extraordi- nary measures issued under the Pandemic Act. Of these, 36 cases were either quashed or declared illegal due to insufficient or lacking justification (2024, p. 10). The courts were first careful in their findings. The Constitutional Court decisions contained separate justification of individual judges who obviously had different perception of to what extent the government should be left room in their effort to cope with the pandemics. They explained carefully that it is important to protect people from the pandemics. The administrative courts rejected some actions on the grounds of not choosing the right type of action. However, as the time passed the courts showed less understanding for the executive power misconducts. As the expert evidence became more accessible to the government and the Ministry of Healthcare together with their limitations of human rights lasting for a long period a shift to a more ac- tive role of the courts became necessary. The turn can be well demonstrated Central European Public Administration Review, Vol. 22, No. 2/202472 Jana Janderová by one sentence of Constitutional Court case Pl. ÚS 106/20 of 9th February 2021: “In laconic terms, even practical uncertainty and a lack of perfect infor- mation do not mean that the government can do anything and rely only on instinct or political compromise.” The administrative courts’ reviews followed the same logic and revealed the measures were overly broad (thus the Minis- try acted ultra vires) and often poorly grounded with no possibility to check their proportionality. These reviews revealed that the ministry either did not have the necessary data available or was not capable of drawing conclusions from them. The wording was usually very general stating there are high num- bers of infected and hospitalized people. The justifications of measures often did not prove any relationship between those numbers and the schools being open. Despite the facts showing that in the beginning of the pandemics the children younger than 10 years carried only a low viral load if any, the schools were closed for those children as well. Obviously, the Ministry of Health- care and the government were afraid of children infecting their parents and grandparents. Instead of closing the schools, they could have worked on a policy dealing with situation of several generations sharing the same home, which is not uncommon. The analysis, using the example of compensation bonuses distribution - which did not restrict rights but rather granted them – illustrates that the breach- es of the principle of legality were not confined to restrictive measures. Al- though the manifestation of the breaches was different, the original reason can be seen for both situations in the chaotic solutions, acting to please the public and neglect of the Rechstaat values which are still not inherent to the public administration. However, correcting the tax authorities’ wrongdoing, or rather establishing the illegality of such a procedure, was only achieved through actions for protection against unlawful interference filed with the administrative courts. Moreover, the strong shift between the approach of the government during the spring 2020 when the measures were strict and autumn 2020 rather be- nevolent as indicated above led to the overall scepticism that the government measures were evidence-based. The people who were rather disciplined dur- ing the first wave lost their confidence in the need to follow rules that were chaotic and unclear anyway. On top of that the public could see the inequali- ties in granting compensation bonuses. This proves that disregard for the rule of law principles including transparency, legality and proportionality can lead to a decline in public trust and cooperation, exacerbating the crisis. 6 Conclusions States of emergency often result in the transfer of greater power to the exec- utive branch, which is more agile than the legislative branch and can respond more swiftly. However, this concentration of power may tempt the executive to misuse it for purposes unrelated to the emergency. Beyond the potential for power misuse, technocratic governance—where decision-making is left to health experts—can impact fundamental human rights and freedoms, raising Central European Public Administration Review, Vol. 22, No. 2/2024 73 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic democratic concerns since these experts are not accountable in the same way as elected officials. The study proved that if governmental measures under states of emergency can be misused and lead to autocratization, this risk is equally, if not more, applicable to ministerial measures, which do not require a state of emergency. Given their lack of parliamentary oversight and poten- tial for unilateral implementation, ministerial measures require stringent ju- dicial review to prevent the unlawful or disproportionate interference with individual rights. The use of ministerial measures was authorized by an Act designed for situations with significantly lower impact, both in duration and scope, than the COVID-19 pandemic, making them particularly dangerous and prone to leading to autocratization. In light of the potential recurrence of emergency situations similar to the COVID-19 pandemic, it is essential for public administration bodies to reflect on their actions and ensure they adhere to the core values of the rule of law. This adherence will enable the most effective responses to future emergen- cies. The article emphasizes the importance of preparing for future crises by leveraging the lessons learned from the COVID-19 pandemic, ensuring that responses are both lawful and effective. It can be understood that during the first days of the emergency, the government improvised somewhat in the in- terests of swiftness and efficiency of the reaction to the inherent danger. The implementation of states of emergency, with their distinct decision-making frameworks, was justified by compelling reasons at the beginning. The exist- ing legal frameworks often did not anticipate a crisis of this magnitude, ne- cessitating the government to apply them in a rather creative manner. How- ever, this ad-hoc approach persisted throughout the entire of the pandemic. Practical use of government crisis measures and emergency measures of the Ministry of Healthcare all limiting fundamental rights, revealed several issues in terms of their constitutionality and legality. Discrepancies occurred also in situations when the state was granting rights instead of banning them. The practice of tax authorities paying out compensation bonus using legislation intended for different procedures which are rather specific, highlighted the drawbacks of ad-libbing and poorly prepared legal rules. The effort of the government to comply with the pressures of specific business groups left the tax authorities in an unsolvable situation leading again to acts breaching the principle of equality and legality. It is essential to emphasize the role of judicial review in safeguarding against autocratization, especially since states of emergency can exacerbate this pro- cess, as observed in some Central European countries. The initially restrained approach of the courts has gradually changed into an active review of compli- ance with the basic principles of administrative law. The administrative courts ultimately clarified the legal nature of the extraordinary measures, enabling them to conduct a review. Doing so, they found the measures imposing limi- tations often unclear, unreasonable, and poorly grounded with dubious le- gal basis. The insufficient justification of the measures taken was the most common deficiency later found by courts causing their annulment. The ana- lysed cases show that the public authorities’ respect for human rights and the Central European Public Administration Review, Vol. 22, No. 2/202474 Jana Janderová principles of the rule of law unfortunately, did not increase significantly over time. The positive is the courts’ persistence in pointing out all the defects. The administrative authorities were facing a significant number of negative court decisions repeating constantly the same recommendations, maintaining the rule of law and ensuring the legitimacy of public compliance measures. While it is often assumed that states of emergency during a pandemic might lead courts to be more lenient towards minor breaches, this assumption does not necessarily hold true. Initially, courts may be less strict, but this can change if the duration of the emergency state is prolonged. This study has shown that the context created by such emergencies does not inherently result in sustained judicial leniency. This is even more relevant to ministerial measures based on an Act designed for addressing epidemic situations with significant- ly lower impact in terms of area and duration, which do not require official declaration of a state of emergency. As the analysis showed, the disregard for these fundamental values and principles can lead to a decline in public trust and cooperation, exacerbat- ing the crisis. This situation necessitates the government to develop policies that ensure the state is better equipped for any future crises, with a stronger focus on the Rechtstaat values. Specifically, the proportionality of measures restricting rights should be meticulously observed, ensuring that such meas- ures are limited to the necessary areas and duration. For future situations, when compensation is granted, strict equality among the requesters should be maintained, and a set of procedural rules should be prepared in advance. The choice of procedural rules depending on the institution the government entrusts with the payments, rather than the type of administrative activity, proved inadequate in ensuring adherence to this crucial value. Acknowledgements – The article was supported from public funds of the Czech Republic for specific science - project number SGS_2022_017, “Vybrané aspekty vývoje ekonomik a finančních trhů v pandemické a post pandemické době” (Se- lected aspects of the development of economies and financial markets in the pandemic and post-pandemic era). A part of this contribution is based on data collected by Mrs. Jitka Spěváčková in her master diploma thesis titled Compen- sation Bonus and Tax Administration defended in January 2023 which I had the pleasure to supervise. I wish to thank her for her contribution. Central European Public Administration Review, Vol. 22, No. 2/2024 75 Rule of Law and Democratic Decline During States of Emergency – The Case of the Czech Republic References Addink, H. (2019). Good Governance Concept and Content. Oxford: Oxford university press. Beqiraj, J. and Moxham, L. (2022). 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German Law Journal, 25(3), pp. 386–406. https://doi.org/10.1017/glj.2023.96 Wintr, J. (2020). K ústavnosti a zákonnosti protiepidemických opatření na jaře 2020. Správní právo, 53(5-6), pp. 282–297. P A R T II Special section “Digitalisation and Legal Remedies in Administrative Procedures” Guest Editors: Prof. Dr. Polonca Kovač (University of Ljubljana, Faculty of Public Administration – Slovenia) Prof. Dr. Krisztina F. Rozsnyai (University ELTE Budapest, Faculty of Law – Hungary) 81 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ Introduction to the special section The following section contains papers delivered at the 2024 Annual Con- ference of the European Group of Public Administration (EGPA), the largest and most distinguished public administration-oriented academic community in Europe. The articles in this special issue originate from the Law and Pub- lic Administration Permanent Study Group (Law & PA PSG) – one of EGPA’s founding study groups. While the conference papers have been substantially revised, with at least 30% of the content rewritten or refined, the updates re- flect feedback from the conference discussions and recommendations from the journal’s double blind review process. Since its inception in 2005, the EGPA Law & PA PSG has fostered an interdis- ciplinary study of the practice and theory of public administration law and administrative science and policy from both national and European perspec- tives. The group serves as a hub for scholars and practitioners from various fields: lawyers, sociologists, policy analysts, economists and IT experts work- ing in academia and public institutions, as well as civil servants from national and supranational institutions and NGOs. Its mission is to combine academia and practice on public – especially administrative – law, its functioning, and its institutions in a public administration context. Out of approximately 20 pa- pers presented at the 2024 EGPA Conference, about a half have been select- ed for submission to this CEPAR special issue, finally ending in the publication of eight articles: two each from Hungary, the Czech Republic, and Slovenia, and one from Poland and Denmark, providing a regional overview of the field. The call for papers for the 2024 EGPA Conference invited scholars and prac- titioners to explore pressing challenges within administrative remedy sys- tems and their digitalisation, linking them to the conference’s main theme, “Strengthening Democratic Governance for Better Public Policies and Ser- vices”. Remedy systems must adapt to ongoing changes in administrative law and practice, offering a valuable framework to accommodate current devel- opments and trends in public administration and especially administrative law. Among the most prominent topics are the use of artificial intelligence (AI) and automated decision-making, as these technologies represent a pivotal shift in public administration, leading to a digital transformation that challenges established legal frameworks and core legal principles. This transformation seeks balance innovation and efficiency while protecting the rights of indi- viduals. Several papers address this topic. Grega Rudolf and Polonca Kovač explore the integration of AI systems into administrative procedures, analys- ing implications for both personal data protection and adherence to adminis- trative law principles in decisions impacting individuals’ rights and obligations. Their research provides a European perspective on regulatory tasks to align AI use with the basic principles of administrative procedure to enhance legal and data protection. Jowanka Jakub-Lalik contributes a Polish perspective, examining the specific legal remedies to address AI-related challenges, while Michael Goetze takes a broader view, discussing digital simplicity as a new legislative objective. 82 Beyond AI, numerous challenges in administrative law arise from the diversity of the forms of administrative action, and the members of our study group constantly reflect on these trends of administrative law and public adminis- tration from a European, comparative, and national perspective. Many pre- sentations this year addressed the evolving nature of administrative law, including new types of administrative acts. Sára Hrubešova analyses the leg- islative choices regarding form and their implications for the legal remedy system, while Tomaš Svoboda discusses the emerging form of administrative recommendations, highlighting the critical role the form of administrative ac- tion can play. Krisztina Rozsnyai contributes to this discourse by reflecting on regulatory requirements in light of new administrative instruments and their implications for the divide between ordinary and administrative justice in a comparative perspective. István Hoffman adds further insight with his analy- sis of Hungary’s system of remedies for social service provision, noting a shift from private to public law in judicial protections, a trend observed across Eu- rope. A perennial topic – administrative appeal – is analysed by Polonca Kovač from a fresh comparative, normative, and doctrinal perspective. Despite being the most common legal remedy in administrative matters, legislative changes and experimental approaches sometimes threaten its proper functioning, as can administrative practices that raise questions about implementation. Her paper, grounded in empirical research of over a hundred cases, provides a robust framework for both legislatures and appellate bodies. We hope this collection of papers contributes to enhancing the effectiveness of administrative legal remedy systems across Europe and offers valuable in- sights into current challenges. Ljubljana, Budapest, November 2024 Guest editors, Prof. Dr. Polonca KOVAČ University of Ljubljana, Faculty of Public Administration – Slovenia polonca.kovac@fu.uni-lj.si Prof. Dr. Krisztina F. ROZSNYAI University ELTE Budapest, Faculty of Law – Hungary rozsnyaik@ajk.elte.hu 83 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ DOI: 10.17573/cepar.2024.2.04 1.01 Original scientific article The Role of Automated Decision- Making in Modern Administrative Law: Challenges and Data Protection Implications Grega Rudolf Information Commissioner, Republic of Slovenia University of Ljubljana, Faculty of Law, Slovenia (PhD student) grega.rudolf@ip-rs.si https://orcid.org/0000-0001-9449-6905 Polonca Kovač University of Ljubljana, Faculty of Public Administration, Slovenia polonca.kovac@fu.uni-lj.si http://orcid.org/00-0002-7743-0514 Received: 24. 9. 2024 Revised: 17. 10. 2024 Accepted: 24. 10. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: The integration of artificial intelligence (AI) in automated de- cision-making (ADM) represents a transformative moment in public ad- ministration. This paper explores the incorporation of ADM systems into administrative procedures, focusing on their impact on personal data pro- tection and the fundamental principles underpinning administrative law. Design/Methodology/Approach: Utilising a combination of descriptive, normative, and doctrinal research methods, the study draws on recent regulatory initiatives, analyses selected ADM use cases in Slovenia and abroad, and closely examines the 2023 Schufa case decided by the Court of Justice of the European Union (CJEU). By combining theoretical per- spectives with practical insights, the research provides a comparative analysis within the context of EU and Slovenian legal frameworks. Findings: The study assesses how ADM systems interact with, and poten- tially reshape, key principles of administrative and data protection law. It presents a clear picture of the legislative, organisational, and technologi- cal changes required to ensure that ADM systems align with existing legal frameworks. Academic Contribution to the Field: By offering valuable guidance for public administration professionals, the paper enhances the understand- ing of implementing ADM technologies in administrative practice. Its Rudolf, G., Kovač, P. (2024). The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications. Central European Public Administration Review, 22(2), pp. 83–108 Central European Public Administration Review, Vol. 22, No. 2/202484 Grega Rudolf, Polonca Kovač insights assist policymakers and legislators in crafting regulations that embrace the benefits of AI while ensuring these systems are subject to proper oversight. Research/Practical/Social Implications: The deployment of ADM sys- tems must align with legal principles to maintain transparency, account- ability, and the protection of fundamental rights. This paper highlights the importance of not only understanding the legal implications but also ensuring that ADM technologies uphold standards of good governance. Originality/Value: This research extends the boundaries of established legal frameworks and raises critical questions about how core principles of administrative and data protection law can adapt to new technologies. The challenge lies in leveraging AI to increase efficiency while ensuring these innovations respect individual rights, safeguard the public interest, and uphold standards of good administration and governance. Keywords: administrative law, administrative procedures, artificial intelligence, automated decision-making, good administration, legal principles, personal data protection JEL: K23 1 Introduction The increasing incorporation of artificial intelligence (AI) in public administra- tion, particularly through automated decision-making systems, marks a criti- cal juncture in the evolution of public governance. These AI technologies, de- signed to streamline administrative processes and improve decision-making accuracy, significantly alter how data is being processed and managed, funda- mentally reshaping the administrative landscape, both in quantity of informa- tion and speed by which information can be processed (Galetta and Hofmann, 2023). Yet, this transformation raises essential legal and ethical questions. At the core of this shift is the challenge of balancing technological progress with the protection of fundamental rights and adherence to established principles of administrative (procedural) law, the rule of law, and personal data protec- tion (Galetta and Hofmann, 2023; Enqvist and Naarttijärvi, 2023). As AI ac- celerates the pace of information processing, it is imperative that legal safe- guards, such as the principles of legality, proportionality, and participation, remain intact to guide this digital transformation responsibly. While the European Union has made strides in adapting its legal framework to modern technological developments, particularly through instruments like the General Data Protection Regulation (GDPR)1 and the Artificial Intelligence Act (AI Act),2 a significant gap persists in integrating these regulations with- 1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119. 2 Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence and amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139 and (EU) Central European Public Administration Review, Vol. 22, No. 2/2024 85 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications ing the remit of administrative (procedural) law. There remains a parallelism rather than an integration between the fundamental principles of administra- tive (procedural) law and the automation of administrative decision-making. This disconnect is partly due to multilevel regulation at both EU and national levels, whereas the administrative procedures are generally regulated by national administrative procedure acts (Dragos, 2023; Kovač, 2016), such as Slovenia’s General Administrative Procedure Act (GAPA),3 while the GDPR is complemented by the national Personal Data Protection Act (PDPA-2).4 The coexistence of these multi-layered legal frameworks demands a careful rec- onciliation to ensure that AI-driven decision-making processes not only com- ply with existing legal standards but also bolster the democratic principles that form the foundation of public administration. Although AI brings substantial opportunities for improving public govern- ance, it also introduces complex challenges that necessitate careful and vigi- lant oversight. Constant adaptation of both ethical standards and regulatory frameworks is vital to effectively manage these challenges. Balancing the po- tential benefits of AI with the need to maintain fundamental legal and demo- cratic values is critical—especially regarding administrative decision-making, which requires thorough regulation under administrative procedural law. Addressing these challenges is imperative to ensure that AI enhances public administration while respecting citizens’ rights and maintaining public trust. As digital transformation continues to unfold, it becomes increasingly neces- sary for legislators and policymakers to adapt legal frameworks in a way that keeps pace with technological advancements while ensuring robust protection of individual rights. A thoughtful and coherent alignment of AI technologies with the core legal principles is essential to foster a future where innovation enhances, rather than undermines, the integrity of administrative governance. A review of the studies carried out to date in this area shows that there has already been extensive research, particularly on the use of AI and its impact on the protection of personal data (Goldsteen et al., 2022; Hamon et al., 2022; Rhahla et al., 2021, etc.), fundamental elements of the rule of law and ad- ministrative law (Palmiotto, 2024; Ranchordas, 2024; Enqvist and Naarttijärvi, 2023; Carlsson, 2023; Finck, 2019; Reis et al., 2019), and administrative proce- dures (Galetta and Hofmann, 2023; Parycek et al., 2023; Carlsson, 2023; Grim- melikhuijsen, 2023). However, there is still limited research on the direct im- pact of AI on the principles of administrative procedures and the protection of personal data, their appropriate balancing, and the concrete implications of using automated decision-making in administrative procedures. In the con- text of personal data protection, balancing such rights with other fundamen- tal rights or principles, such as transparency, remains a constant challenge, highlighting collisions between interrelated constitutional rights (cf. Galetta et al., 2015; Kovač, 2022). From this perspective, finding the relevant balance 2019/2144 and Directives 2014/90/EU, (EU) 2016/797 and (EU) 2020/1828 (Artificial Intelli- gence Act), OJ L. 3 Official Gazette of the RS, No. 80/99 and amendments. 4 Official Gazette of the RS, No. 163/22. Central European Public Administration Review, Vol. 22, No. 2/202486 Grega Rudolf, Polonca Kovač is crucial for the effective role of authorities and the proper conduct of ad- ministrative procedures. The aim of this paper is to fill this gap and examine in depth the multifac- eted interplay between administrative (procedural) law and the protection of personal data in the context of the integration of AI systems for automated decision-making in administrative procedures. The goal is to propose appro- priate ways and views on reconciling technological progress with legal regula- tion in this area. These findings may be useful for policymakers in the fields of data protection and administrative procedural law. The lessons learned, par- ticularly regarding the proposal to harmonise the regulatory framework, can serve as a basis for developing and understanding similar solutions in other comparable EU Member States. 2 Research Design, Questions and Methods Applied This study aims to assess the intersection of AI in automated decision-making with principles of administrative law and personal data protection. In order to do so, the research draws on a diverse range of methods, including descrip- tive, normative, and dogmatic approaches, supported by a comprehensive re- view of secondary and complementary literature and legal sources. The focus is on how AI impacts public administration, with particular attention to the implications for administrative procedural law and data protection principles. The methodology further incorporates content analysis, synthesis, compila- tion, and the axiological method, ensuring an in-depth exploration of the re- searched subject. Central to the research is an evaluation of the CJEU’s deci- sion in the Schufa case (CJEU, C-634/21, December 2023), which provides a relevant case study for examining the practical implications of AI in adminis- trative decision-making. In addressing the research questions, the paper adopts a triangulation ap- proach, combining multiple perspectives and methodologies for enhanced ob- jectivity. This involves the integration of literature analysis, case law evaluation, and comparative studies. The selected methods ensure a holistic understand- ing of how AI systems affect the core principles of administrative procedural law and data protection. The main research questions guiding this research are: – How does the use of AI in automated decision-making impact core princi- ples of administrative law and data protection within administrative proce- dures? – To what degree do existing EU regulations, such as the GDPR, and national laws like Slovenia’s PDPA-2 and GAPA, successfully uphold individual rights while ensuring efficient public administration? The methodological framework for this research rests on a qualitative ap- proach (see figure 1), complemented by doctrinal and case law analysis. The study begins by defining the key concepts and principles affected by AI-driven automation and follows with a comparative evaluation of current regulatory Central European Public Administration Review, Vol. 22, No. 2/2024 87 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications frameworks in the EU and Slovenia. The research relies on credible academic sources, including peer-reviewed journals, legal monographs, case commen- taries, and relevant case law. Sources were selected based on their relevance to the research objectives related to AI and administrative law, their contribu- tion to understanding the intersection of AI and legal frameworks, and their potential to provide both theoretical and practical insights. Particular empha- sis was given to materials that address current challenges and regulatory de- velopments to ensure a comprehensive exploration of the topic. Figure 1. Basic research steps with methods applied Definition of research problem (AI and ATM in administrative and data protection law), objectives, research questions and methods Theoretical part: descriptive, normative-dogmatic analysis, legal framework review, and comparative method Empirical part: case law anaylsis, content synhesis and complilation Interpretation of results through the initial reserch question (axiological- sociological method), definiton of discussion points Source: own Building on this foundation, the structure of the paper unfolds in a logical se- quence. Section 3 provides a critical examination of the existing legal frame- work governing automated decision-making systems and their practical appli- cations. This sets the stage for the discussion of how these systems interact with established principles of administrative (procedural) law and personal data protection, including an analysis of the Schufa case in Section 4. Section 5 delves deeper into key constitutional principles that serve as safeguards for European democratic standards, while Section 6 shifts the discussion on the potential developments in regulatory frameworks and risk management strategies for the responsible implementation of ATD in public administra- tion. Lastly, the conclusion in Section 6 summarizes the key findings and sug- gests pathways for future research and regulatory reform. Through a combination of normative and axiological methods, this study seeks to contribute to a deeper understanding of how AI reshapes legal prin- ciples and affects the balance between efficiency in public administration and the protection of individual rights. 3 AI in Administrative Procedures: An Overview of the Slovenian Legal Framework and Their Application Slovenian administrative procedures, much like those in most EU countries, are governed by a combination of sector-specific laws and the General Ad- ministrative Procedure Act (GAPA), which functions as a subsidiary frame- work (lex generalis) to those sector-specific laws, except when it comes to fundamental principles. These foundational principles, rooted in constitutional guarantees, provide consistency across various administrative areas and authorities, serving as Central European Public Administration Review, Vol. 22, No. 2/202488 Grega Rudolf, Polonca Kovač anti-fragmentation mechanisms (Kovač, 2022). Among these nine principles, some are considered sub-principles of others—for example, the assessment of evidence is part of the broader principle of substantive truth. The majority of these principles are also reflected in GAPAs in the broader region and are inte- gral part good governance. The principle of legality stands out as particularly critical, supported by complementary principles such as decision-making au- tonomy, the right to be heard, the right to appeal, and the pursuit of substan- tive truth. Moreover, Slovenian administrative law not only follows national legal standards but is also aligned with European Union guidelines on good administration, especially regarding the emphasis on public participation, legal protection, and balancing the right to access information with data protection safeguards (Galetta, 2015; Kovač, 2016; Galetta and Hofmann, 2023; Roehl, 2023). At the EU level, these guarantees are codified in the Charter of Funda- mental Rights, with Article 41 ensuring the right to good administration, which offers procedural rights such as the right to be heard, access to file, and the obligation for administrative bodies to provide reasons for their decisions. Legal principles, in general, serve as value-based criteria that are drawn from legal theory, case law, and both the constitutional and international guaran- tees. They guide the interpretation and application of codified legal rules, providing a framework for applying substantive law and ensuring proper in- terpretation of procedural discretion. These principles become particularly relevant when assessing the legality of administrative acts, where failure to adhere to them may form the basis for legal challenges. In such regard, GAPA principles are instrumental in navigating the complex interplay between pub- lic interest and the legally protected interests of private parties to the proce- dure, ensuring that public interest is prioritized when conflicts arise. At the same time, these principles help uphold the fundamental rights of individuals, striking a balance that safeguards both public administration’s efficiency and individuals’ legal protections. As administrative procedures increasingly adapt to new technologies, such as AI-driven decision-making, these principles must continue to evolve to maintain their relevance in the face of modern chal- lenges to governance and personal data protection (on the relation between EU and national regulation in this area see Kovač, 2016). This is particularly relevant to the topic under consideration, as it requires individual countries to find a balance between general/supranational common regulations and the specifics of individual administrative traditions and areas, status of public ad- ministration, and the country’s political objectives. By highlighting key principles in Slovenian law and their relevance at the EU level, and while also noting their indirect link to automated administrative decision-making, we can draw the following table. The analysis indicates that the Slovenian GAPA aligns with all relevant standards of the CJEU case law and operationalises rights enshrined in the Constitution of the Republic of Slovenia (ConRS)5. However, the hierarchy and significance of these principles can be unclear, leading to difficulties in their interpretation in practice, par- 5 Official Gazette of the RS, No. 33/91-I and amendments. Central European Public Administration Review, Vol. 22, No. 2/2024 89 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications ticularly when conflicts arise, such as between access to personal data and privacy (as under the Freedom of Information Act, FOIA).6 Table 1: Overview of administrative principles in CJEU case law and Slovenian general regulations Principles and fundamental rights according to CJEU Slovenian sources Rule of law, legality and protection of public interest, legal certainty, legitimate expectations ConRS (2, 3–, 15, 120, 153, 155, 158), GAPA (6, 7, 15, 42–55, 83, 237, 224, 225, 237, 282) Impartiality, equality ConRS (14, 22), GAPA (6, 12, 35–9, 237) Proportionality, fairness, due care ConRS (2–, 22, 23, 25), GAPA (7–) Right to be heard (fair hearing) and participatory democracy ConRS (3, 21, 22, 34, 44), GAPA (9, 146, 237) Access to (one’s) file ConRS (22), GAPA (82) Transparency, access to information ConRS (39), GAPA (82), FOIA Data protection and quality (18, 19) ConRS (38), GAPA (82, 74–80, 164–201), GDPR and PDPA-2 Reasons for decisions ConRS (22, 25), GAPA (214, 237) Reasonable time ConRS (23), GAPA (14, 222, 256) Effective remedy ConRS (25, 157), GAPA (13, 215, 229–81) Good administration Indirectly, throughout ConRS and GAPA Source: Kovač, 2022; Galetta et al., 2015. In this context, it is important to emphasise that the protection (and qual- ity) of personal data constitutes a fundamental principle of administrative law and a key pillar of European identity (more in Rudolf and Kovač, 2023). AI systems of automated decision-making that process personal data are sub- ject to the stringent rules of the GDPR. This includes the general principles of data protection outlined in Article 5 and the requirements for a relevant legal basis for processing specified in Article 6, in parallel with Article 9 in cases where special categories of data are processed. Notably, Article 22 of the GDPR guarantees data subjects the right not to be subject to a decision based solely on automated processing, including profiling, which produces le- gal effects concerning or significantly affects them. Additionally, Article 15(1) 6 This is also indicated by the case law of the Slovenian Supreme Court, e.g. case I Up 168/2017, 5 March 2019, stating that the principle of proportionality under the GDPR and the Consti- tution prevails over sector-specific laws, or case X Ips 4/2020, 27 May 2020, stating that the provisions of the sector-specific (criminal or administrative), albeit general procedural law, prevail over a systemic law on public information or the protection of personal data. Central European Public Administration Review, Vol. 22, No. 2/202490 Grega Rudolf, Polonca Kovač (h) of the GDPR provides data subjects with the right to obtain information about the logic involved in any automated decision-making process, as well as the significance and the envisaged consequences of such processing. These provisions underscore the importance of protecting personal data and ensure that such systems are deployed in accordance with the values of transpar- ency, fairness, and respect for individuals’ autonomy. Nevertheless, despite the relatively ambiguous legal framework surrounding the integration of AI systems into administrative decision-making, there are several examples of application of these systems both in Slovenia and internationally. The use of AI systems is already transforming public administration in Slove- nia and beyond, enhancing the efficiency of public tasks and services. While Slovenia remains relatively cautious compared to other countries (e.g. Den- mark, Finland, Hungary, Netherlands, Estonia, Spain, USA, cf. Kuziemski and Misuraca, 2020; Kovač, 2022; Ranchordas, 2024; della Cananea and Parona, 2024), there are notable examples of automated decision-making systems be- ing implemented. These systems are sometimes introduced with limited re- gard for, or even in defiance of, existing legal frameworks, with shortcomings often only becoming apparent when mistakes or abuses occur (Babšek and Kovač, 2023). In Slovenia, for example, the ‘e-Welfare’ system automates the processing of social benefits applications. The Slovenian Financial Administra- tion employs machine learning to detect tax evasion by analysing tax data for patterns of fraud. AI is also used in the allocation of agricultural subsidies. Additionally, chatbots are increasingly used to enhance public service delivery and citizen engagement through personalised virtual interactions. Mass tax and social procedures are particularly suited for automated decision- making due to their potential to improve efficiency, transparency, and equal- ity before the law. However, both in Slovenia and internationally, there have been significant issues associated with these practices, including violations of fundamental human rights due to discriminatory algorithms, lack of transpar- ency, inadequate legal safeguards during IT system failures and problems with accountability in multilevel decision-making processes, e.g. in the areas of mi- grations and asylum (see Palmiotto, 2024; Algorithm Watch, 2020; Tangi et al., 2022; Benjamin, 2023), social welfare (see Babšek and Kovač, 2023), employ- ment (see Kuziemski and Misuraca, 2020) etc. While the use of AI systems is diverse and innovative, it can also raise concerns regarding the principles of good administration, including adherence to the principles of proportionality, the right to be heard, the obligation to provide reasons for decisions, and, con- sequently, legal protection (Galetta and Hofmann, 2023; Ranchordas, 2024). 4 The Role of AI in Shaping Key Principles of Administrative Procedure and Data Protection The integration of AI into public administration marks a pivotal shift in the modernisation of public governance (Kovač, 2016; Reis et al., 2019; Galetta and Hofmann, 2023; Roehl, 2023). Although AI promises numerous advantag- es, such as reducing administrative barriers and accelerating administrative Central European Public Administration Review, Vol. 22, No. 2/2024 91 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications decision-making processes, it also raises critical concerns about maintaining core administrative law principles. These include transparency in decision- making, fairness in interactions with parties to the procedure, and ensuring that individuals participation in processes driven by AI. The central aim of ad- ministrative procedures is to achieve a balance between public and private interests, safeguarding the rights of the weaker party in any given situation. That in mind, the introduction of AI into these processes, presents several challenges. One of the foremost issues is how to harness the potential of AI tools without disturbing the fine balance between public and private inter- ests. At the same time, it is vital to provide all participants as parties to the procedure with the procedural protections necessary to uphold their rights. It is not sufficient that authorities simply reach decisions; these decisions must also be accepted, and trusted by the affected persons. Given that administrative decision-making is inherently linked to individual- ised decision-making on an administrative matter, the use of AI in this context must ensure that, in addition to the principles of administrative law, also the principles concerning the protection of personal data are adhered to. These include core principles such as legality, fairness, transparency, purpose limita- tion, data minimisation, accuracy, storage limitation, integrity, confidentiality, and accountability. These rules are not just procedural requirements; they act as ethical standards guiding the responsible use of AI in automated decision- making. Adherence to these principles ensures that AI technologies uphold individual rights while complying with the legal safeguards and obligations in place. The convergence of these principles creates a complex framework that public administration must navigate to ensure fairness, accountability, and transparency in modern public governance. The deployment of AI in administrative procedures also touches upon deeper concerns regarding the rule of law, particularly the separation of powers. This principle, aimed at preventing the concentration of power by ensuring the in- dependent operation of legislative, executive, and judicial branches, becomes increasingly relevant as AI blurs the lines between these roles. Moreover, the delegation of tasks on AI supervision between EU and national authorities fur- ther underscores the importance of this principle, requiring clear boundaries and checks on the use of AI within administrative procedures (Benjamin, 2023). The role of AI in automating decision-making processes, traditionally the do- main of humans, blurs these divisions, raising issues of accountability and con- trol. The potential encroachment on the separation of powers intersects with the principle of legality. The non-transparency of AI makes it difficult to verify whether the results of these systems – whether used as recommendations or as legally binding sources – are valid. This compromises both the legitimacy of decisions and legal certainty of those affected (Grimmelikhuijsen, 2023; Gal- etta and Hofmann, 2023). The use of outdated or inaccurate data, including invalid legal frameworks or other inaccurate data, can lead to decisions that are not only inaccurate but de facto wrong, which undermines the principles of substantive truth and (substantive) legality. When using AI, any inaccuracy in input data is even more critical, as it can cause a chain reaction of wrong de- Central European Public Administration Review, Vol. 22, No. 2/202492 Grega Rudolf, Polonca Kovač cisions based on inaccurate assumptions. This raises the question of whether accuracy should be prioritised over the explainability of the results. The abil- ity of AI to learn dynamically and produce new or different results each time leads to unpredictability, thus undermining legal certainty and the reliability of authoritative decisions that the principle of trust in the law is supposed to guarantee (Carlsson, 2023; Cetina Presuel and Martinez Sierra, 2022). In addition, AI’s capacity to interpret evidence based on predefined algorithms and patterns can significantly limit the scope of human discretion in assessing and evaluating evidence in administrative procedure, thus compromising the principle of the free assessment of evidence, which requires consideration of nuances and context provided by human judgement. Paramount in such respect, particularly regarding the processing of personal data, is the principle of legality. According to this principle, AI technologies must operate within the legal constraints and bases outlined in Articles 6 and 9 of the GDPR. Ensuring that AI systems – which often process personal data in complex and sometimes non-transparent ways – comply with the legal re- quirements is essential to protect the rights of individuals and maintain trust in both decision-makers and AI systems (Grimmelikhuijsen, 2023). In this con- text, legality acts as a safeguard to ensure that personal data is not used ar- bitrarily or without a clear legal basis. The challenges concerning legality and legal certainty are also closely linked to the risks that the use of AI systems entails in terms of equality before the law. Algorithmic biases can lead to dis- criminatory outcomes, thus undermining the principle of equality before the law. It is crucial to ensure that AI systems, particularly when integrated into (administrative) decision-making, are designed and assessed in terms of their understanding and in terms of ensuring fairness and equality of treatment.7 In this context, the principle of proportionality benefits from AI’s ability to tailor results and decisions to specific situations and cases. However, this benefit depends on the quality of input data and the fairness and ethicality of the algorithms used to process such (Finck, 2019). Control over preventing un- desirable effects from AI-generated results is crucial. However, the principles of purpose limitation and data minimisation, as derivatives of the principle of proportionality in personal data protection, face numerous challenges in the use of AI, which requires large amounts of data for learning and decision- making. Their advancement must therefore ensure that personal data are collected and processed solely for the explicit and legitimate purposes for which they were collected (purpose limitation) and that the personal data processed are adequate, relevant, and limited to what is necessary for the purposes pursued (data minimisation) (Goldsteen et al., 2022). All of the above is also related to the principles of openness and transpar- ency, which are essential for ensuring democratic accountability (see also a comparison of EU values and rules as opposed to the Chinese approaches, in Kovač and Rudolf, 2022). Pursuing explainable AI and raising public awareness 7 This is discussed in more detail by Ranchordas (2024), who even advocates for the introduc- tion of ‘digital constitutionalism’. Equality is particularly important for vulnerable groups, such as the socially disadvantaged, where parties are, by definition, less informed, less educated, and less empowered to protect their rights (cf. Babšek and Kovač, 2023). Central European Public Administration Review, Vol. 22, No. 2/2024 93 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications of its role in decision-making are key to maintaining trust in administrative decisions and human decision-makers. This enhances transparency in public governance and encourages public participation and engagement (Grimme- likhuijsen, 2023). The author explores the challenge of transparency by distin- guishing between (i) accessibility, which refers to the availability of the algo- rithmic code, and (ii) explainability, which focuses on the ability to explain the functioning of AI algorithms and their impact on decisions in an understand- able way. According to the research, the explainability of AI systems is more important for fostering trust, not only in the AI algorithm itself but especially in the human decision-makers who use AI in their decision-making. This dual aspect of trust – both in the technology and in the individuals behind it – high- lights the manifold implications of the transparency of algorithms for the pro- tection of personal data. The use of AI in individual administrative procedures challenges the participa- tion and involvement of both the public and the parties to the procedure. It hinders the right to be heard by limiting the parties’ ability to understand and influence the outcome of the administrative decision (Kovač, 2016; Gal- etta and Hofmann, 2023; Enqvist and Naarttijärvi, 2023). When AI assists in or even guides decision-making (either in whole or in part), the parties involved in these procedures find it more difficult to control their requests, monitor the collection and balancing of evidence, and influence the assessment and adoption of the final decision. This is particularly problematic if the reasoning behind the AI-generated decision remains unclear, preventing parties from understanding how the conclusions that contributed to and influenced the final decision were reached. This also raises concerns about the accountabil- ity of administrative decisions. If parties are unaware that AI is being used or cannot understand the AI decision-making process, their ability to challenge administrative decisions and effectively pursue remedies and judicial review is compromised. This affects the rights of individuals and undermines the integ- rity of and trust in the law. Uncritical acceptance of AI risks undermining fair and just procedures and the rights of the individuals who are the subjects of such decisions. As regards the fairness of algorithms and related processing, there are also concerns about the potential for AI-generated results to pro- duce biased or erroneous outcomes, which further complicates the possibility of integrating AI systems into administrative procedures. Legal discussions also often overlook the wider societal impacts and risks associated with er- rors and biases in algorithms (Carlsson, 2023; Ranchordas, 2024). Individuals seeking to challenge automated decisions therefore face several procedural obstacles, including the complexity and non-transparency of AI systems and their decision-making processes, which blur the way decisions are made and limit access to the information needed to challenge them effectively. As regards the confidentiality of administrative processes, AI’s reliance on large databases for learning and decision-making increases the risks of disclosure or misuse of personal and confidential information. It is therefore crucial to implement robust measures to protect personal and confidential information from the procedure and to develop AI technologies that respect the essence Central European Public Administration Review, Vol. 22, No. 2/202494 Grega Rudolf, Polonca Kovač of the right to (informational) privacy (Hamon et al., 2022; Rhahla et al., 2021; Rudolf and Kovač, 2023). This includes limited use of personal data, aligned with purpose limitation and data minimisation. Prolonged data storage, in par- ticular when unnecessary, increases the risk of misuse and security breaches. In conclusion, the impact of AI on the principles of administrative (procedural) law and data protection law is profound, necessitating a synchronised ap- proach to technology introduction and legal framework enhancement. The relevant principles are interrelated; emphasising one can interfere with the other. Thus, ways must be found to bridge these dilemmas to minimise col- lisions or justify the predominance of one principle over another based on the specific circumstances of a case. The opportunities AI offers for better (public) governance are substantial, but they come with complex challenges that require vigilant and careful oversight, ethical consideration, and constant adaptation of both legal frameworks and practices. Balancing the benefits of AI with the need to uphold fundamental legal and democratic standards is therefore crucial, which is particularly evident in the regulation of administra- tive decision-making through administrative procedural law, as illustrated by the CJEU case below. The Schufa case (CJEU, C-634/21, 7 December 2023) is relevant to the topic at hand, even though the case concerns the decision of a private sector en- tity, specifically German bank, using AI to assess a client’s creditworthiness (credit score). This mechanism often forms the basis for decision-making by authorities in administrative procedures when granting rights to parties. The decision raises several issues, such as the need for transparency, accounta- bility, and the protection of personal data. The analysis of this case aims to highlight how these principles can lead to the responsible deployment of AI technologies, respecting legal principles and safeguards, while building trust in AI systems. The analysis also seeks to link theoretical guidance with practi- cal insights to offer a pragmatic approach to the integration of AI systems into administrative practice. The dispute arose when Schufa made a prediction about a data subject’s cred- itworthiness using AI and passed that prediction to the bank, which subse- quently refused to grant a loan. The data subject claimed legal protection before the supervisory authority in the German state of Hessen, followed by an action before the Administrative Court of Wiesbaden. The court stayed the procedure and referred a preliminary question to the CJEU. The CJEU consid- ered whether Schufa’s automated credit scoring fell within the scope of “au- tomated individual decision-making” as defined in Article 22(1) of the GDPR. This provision prohibits any decision based solely on automated processing, including profiling, which produces legal effects or similarly significantly af- fects the data subject, unless the specific conditions of Article 22(2) of the GDPR are met. Having established the adequacy of the request, the CJEU as- sessed whether the three cumulative conditions for the application of Article 22 of the GDPR were met in the processing of personal data at issue. The Court held that (i) there was a “decision”, as this term also covers the result Central European Public Administration Review, Vol. 22, No. 2/2024 95 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications of the calculation of the data subject’s creditworthiness; (ii) the decision was “based solely on automated processing, including profiling”; and (iii) the deci- sion produced “legal effects concerning the person at issue or affect him or her similarly significantly”. The CJEU ruled that it was apparent from the very wording of the question referred that “the action of the third party to whom the probability value is transmitted draws ‘strongly’ on that value” and that, according to the factual findings of the referring court, an insufficient prob- ability value leads, in almost all cases, to the refusal of that bank to grant the loan applied for. The Court’s judgment thus takes the view that preparatory documents (i.e., those offered by AI systems as a result of processing) can also be considered autonomous decisions under the provisions of Article 22(1) of the GDPR. In line with Recital 71 and Article 22(2)(b) of the GDPR, the CJEU emphasised the need for protective measures to respect the rights and free- doms of data subjects when automated decision-making is carried out. These (additional) measures include the right for data subject (a) to obtain human intervention, (b) to express their point of view, and (c) to challenge the deci- sion taken in their regard. In this context, the question arises whether automated draft decisions or related results generated by AI systems in administrative procedures should also be considered as a prohibited type of data processing, particularly in cases where all conditions under Article 22(1) of the GDPR (see points i-iii above) are met. Given the nature of the administrative relationship, where the rights and obligations of individuals vis-à-vis the authorities are deter- mined in administrative procedures, it is reasonable to assume that the mere consideration by a human decision-maker of the results, predictions, opin- ions, or assessments of AI systems as part of evidentiary materials within fact-finding and evidence-taking procedures significantly influences its con- duct and the final decision. However, the distinction between different types of documents or outputs (e.g., a prediction or assessment as evidence versus a draft decision) remains unclear, raising questions about whether such use constitutes a decision based solely on automated data processing. In light of the Schufa decision, the processing and use of AI in administrative proce- dures would, as a rule, be prohibited, at least under Slovenia’s current legal framework.8 This directly collides with or undermines fundamental principles such as legality, proportionality, trust, data quality and substantive truth,9 the right to be heard and be given reasons for a decision, and effective legal protection. This is not only in contravention of the GDPR but also the EU Charter of Fundamental Rights and the principles enshrined in the Slovenian Constitution and the GAPA. 8 Unless compliance with the conditions set out in Article 22(2)(b) of the GDPR is ensured – namely, that such processing is authorised by Union or Member State law to which the con- troller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests. 9 According to the CJEU, the operator of an AI system must apply appropriate mathematical or statistical procedures, along with technical and organisational safeguards, to minimise the risks of error and correct inaccuracies. Additionally, these measures must ensure the protec- tion of personal data by considering potential risks and preventing discriminatory consequen- ces that could affect an individual’s interests and rights (cf. Grimmelikhuijsen, 2023). Central European Public Administration Review, Vol. 22, No. 2/202496 Grega Rudolf, Polonca Kovač In Slovenia, according to constitutional provisions, such a legal basis should be established by law (see Article 38(2) of the Constitution) or by a hierarchi- cally superior legal basis (e.g. EU law). In addition to the conditions mentioned above, such regulation should also fulfil the conditions set out in Article 6(2) of the PDPA-2. Such a law should specify the processing of personal data, the types of personal data to be processed, the categories of data subjects, the purpose of the processing, and the retention period of the personal data or the period for periodic review of the need for retention. Where possible, it should also specify the users of the personal data, the specific processing operations and procedures, and other measures to ensure lawful, fair, and transparent processing. Currently, no such provision exists in the Slovenian legal order that explicitly allows such processing while meeting the strict cri- teria of the national legal framework. The Schufa decision thus sets a precedent by setting clear criteria for auto- mated decisions, including the right to human intervention, the right to chal- lenge automated decisions, the right to be heard, and the right to transpar- ency in the decision-making process. By establishing these standards, the Court underscores the imperative to bolster legal frameworks to protect in- dividual rights amid the growing prevalence of automated decision-making. This ruling not only reflects the increasing importance of data protection in our digital era (cf. Rudolf and Kovač, 2023) but also points to potential short- comings in existing legal frameworks to adequately address the challenges posed by automation. It serves as a compelling call to action for legislators to modernize and strengthen laws, ensuring they effectively safeguard individu- als against the risks associated with automated procedures. 5 Constitutional Principles of Democracy as Safeguards of Arbitrary AI As public administrations increasingly adopt digital tools to enhance effi- ciency and streamline decision-making, the need for robust legal frameworks to safeguard democratic values has become more urgent. This shift toward automation, particularly through ADM systems, presents both opportunities and significant challenges. In response to these challenges, the European Le- gal Institute (ELI) adopted a Charter of Fundamental Constitutional Principles of a European Democracy (2024), which provides critical guidance on how to integrate emerging technologies into governance structures without under- mining core democratic principles. Illustrated by the Figure 2 below is the complex intertwining of principles re- lated to good governance with those related specifically to ADM, as outlined by the ELI Charter. While ADM promises efficiency, it also risks eroding trans- parency, accountability, and fundamental rights (cf. Grimmelikhuijsen, 2023; Galetta and Hofmann, 2015). Legal certainty and the rule of law are particu- larly vulnerable, as opaque algorithms complicate the ability to challenge decisions, potentially undermining individuals’ rights. Similarly, ADM systems can dilute accountability by distancing human oversight, which calls into ques- Central European Public Administration Review, Vol. 22, No. 2/2024 97 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications tion the adequacy of current regulatory frameworks. The integration of ADM also raises broader concerns about bias and discrimination, challenging non- discrimination and equality before the law. These issues expose gaps in the governance of ADM systems, suggesting that mere compliance with existing principles may be insufficient to prevent democratic erosion (cf. Enqvist and Naarttijärvi, 2023; Ranchordas, 2024). Effective regulation of ADM requires not only adherence to these principles but also a proactive approach to antici- pate and address the unique risks ADM introduces, ensuring the preservation of democratic values in the face of rapid technological change. Figure 2. Interconnecting principles of good governance with ADM Source: own; based on ELI, 2024. Among the listed principles, Principle 32 directly addresses ADM and serves as the focal point for understanding how the Charter seeks to regulate the in- tegration of ADM systems into public administration. This principle acknowl- edges the transformative potential of ADM systems but insists that these systems must not operate without the legal and constitutional safeguards. It establishes that ADM systems must be transparent, accountable, and sub- ject to meaningful human oversight, while ensuring that they do not unduly limit access to judicial protection, reinforcing the importance of preserving avenues for individuals to contest decisions that affect their rights (Benjamin, 2023; Finck, 2019). Central European Public Administration Review, Vol. 22, No. 2/202498 Grega Rudolf, Polonca Kovač Principle 32’s call for transparency is central to mitigating the risks associated with ADM systems. Without full transparency, the use of ADM systems risk violating Principle 7’s mandate that all administrative actions be governed by clear legal basis. Transparency, separately outlined in Principle 20, is es- sential not only for maintaining public trust but also for allowing individuals to understand how decisions that impact their rights are made. However, the challenge with ADM systems lies in making this transparency meaning- ful. Disclosing the technical details of an algorithm or the data it processes may not be sufficient for the average individual to fully understand how a decision was reached. Therefore, Principle 32 should be expanded to require that transparency in ADM systems includes not technical details but rather a clear, understandable explanations of how decisions are made and the logic behind them. This approach aligns with the right to legal certainty, a fair trial and an effective remedy by also resonating strongly with the CJEU judgment in the Schufa case. This need for deeper transparency is echoed also in the Advocate General’s Opinion in Case C-203/22, where the AG stressed that under the GDPR, trans- parency must not be reduced to superficial technical explanations. Instead, individuals must be given meaningful insights into the logic of automated de- cision-making to understand how such systems operate. The AG further high- lighted that the GDPR’s right to explanation is meant to empower individuals, not just inform them superficially, so they can make informed decisions about seeking legal protection when their rights are affected (De la Tour, 2024). Another key aspect of Principle 32 is its insistence on accountability and hu- man oversight in ADM systems. While this reflects a recognition of the limi- tations of automated processes, the principle’s current formulation leaves questions about the extent and depth of this oversight. Human oversight, in many cases, can become merely procedural, where humans simply “rubber stamp” decisions made by machines without truly engaging in a meaningful review. To be effective, human oversight must go beyond formalities and involve a substantive review of the ADM system’s decision-making process, ensuring that any biases, errors, or injustices are identified and corrected (cf. Grimmelikhuijsen, 2023; Hamon et al., 2022; Cetina Presuel and Martinez Si- erra, 2022). Without strong human involvement, ADM systems can produce outcomes that perpetuate existing biases or inequalities, directly conflicting with Principle 26’s emphasis on non-discrimination and Principle 27’s empha- sis on the protection of fundamental rights. In this regard, Principle 32 should also be critically evaluated in light of Princi- ple 19’s broader framework of accountability. While the principle highlights the need for ADM systems to be accountable, the specific mechanisms for ensuring this accountability are left vague. Public administrations that rely on ADM systems should be required to establish clear lines of accountability, in- cluding external audits and oversight bodies that can review ADM decisions and hold public institutions accountable for their use. This ties back to Prin- ciple 22 on anti-corruption and the need for mechanisms that prevent the Central European Public Administration Review, Vol. 22, No. 2/2024 99 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications misuse of power. In the context of ADM, without external checks and robust accountability systems, there is a real risk that ADM systems could be misused or that public administrations could hide behind the opacity of algorithms to avoid responsibility for unjust decisions. Despite the strong framework established by Principle 32, significant gaps remain, particularly in relation to data protection. ADM systems typically de- pend on the processing of large volumes of personal data, bringing them directly under the scope of the GDPR and national data protection laws. The GDPR offers individuals robust protections, including the right not to be subject to decisions based solely on automated processing unless spe- cific safeguards, are in place. Yet, Principle 32—and indeed, the Charter as a whole—fails to explicitly incorporate these vital data protection rights and safeguards. This omission represents a critical gap, especially in the context of administrative procedures, where the handling of personal data and pri- vacy concerns are paramount in the introduction and operation of ADM sys- tems. This lack of alignment with the GDPR also weakens Principle 27’s com- mitment to the protection of fundamental rights, particularly the right to data protection and privacy. The lack of emphasis on data protection within Principle 32 is particularly concerning given the increasing role that ADM systems are playing in areas where individuals’ rights are most vulnerable. For example, in social welfare decisions, ADM systems could determine eligibility for benefits; while in immi- gration, they may influence decisions about asylum or residency (cf. Carlsson, 2023; Babšek and Kovač, 2023). In these contexts, personal data is not just a byproduct of the decision-making process—it is the basis of the decision itself. Without adequate safeguards in place, individuals could face signifi- cant harm, with limited legal recourse to challenge or correct erroneous or biased decisions. By expanding Principle 32 to incorporate data protection safeguards or even by introducing a standalone principle of data protection as a key tenant of European democracy, the ELI Charter would be better equipped to navigate the challenges of integrating ADM systems into public administration. ADM systems must not only be transparent and accountable but also operate in full compliance with data protection regulations to ensure that individuals’ fundamental rights are upheld. Without these protections, the risk of undermining democratic governance through the misuse of ADM systems remains significant (cf. Kovač and Rudolf, 2022). In the digital age, where automated systems and algorithms drive many public administrative processes, safeguarding data protection is not merely a legal obligation - it is a democratic imperative. 6 Discussion: Key Considerations and Future Trends Public administration as a vital social subsystem plays a pivotal role in uphold- ing the rule of law, serving as the mechanism through which public policies are designed, implemented, and enforced. In this capacity, administrative authorities make crucial decisions that govern the relationship between the Central European Public Administration Review, Vol. 22, No. 2/2024100 Grega Rudolf, Polonca Kovač state and individuals. With the advent of AI and the broader push for digi- talisation, there is no doubt that these technologies offer significant oppor- tunities to streamline processes and enhance decision-making efficiency. However, adopting automation without careful consideration poses risks. Reckless implementation can erode the fundamental principles of administra- tive procedure and compromise the protection of personal data. Law should not be understood as a mere barrier; but rather in a sense that is provides the essential structure for administrative bodies to intervene in individual rights in a lawful and controlled manner, preventing arbitrariness and ensuring deci- sions are made in the public interest. Therefore, the modernisation of legal frameworks must always go hand in hand with technological reforms (Kovač and Rudolf, 2022; Galetta and Hofmann, 2023). Proponents of rapid digitalisation often argue that law is an obstacle, which hinders the development, but they overlook that the law also provides the necessary foundation for legitimate administrative decision-making. Ignor- ing legal boundaries can lead to misuse of power, unequal treatment, and destabilisation of social order, ultimately undermining the benefits that AI and automation promise. Instead of seeing laws as impediments, it is crucial to recognize their role in providing both limits and empowerment to admin- istrative authorities as they process personal data and determine the rights and obligations of individuals. By ensuring compliance with legal principles, public administration not only upholds the rule of law but also builds trust in its decision-making processes. Although administrative procedures were traditionally perceived as rigid structures ensuring consistency in governance, societal changes demand a more adaptable and flexible approach. Administrative processes must there- fore evolve to meet the complexity of modern governance, where flexibil- ity is necessary to address diverse and dynamic social order (Carlsson, 2023; Dragos, 2023). This evolution highlights the balance between maintaining the core values of administrative law and embracing innovation in a way that strengthens, rather than weakens, public trust in the system. The evo- lution of administrative procedures, and thus public governance as a whole, reflects the necessity for these procedures to remain relevant and effective amidst the challenges posed by accelerating technological progress, increas- ing globalisation, and changing social values. In this context, traditional rigid frameworks are increasingly being supplemented or replaced by more flex- ible, responsive, and participatory approaches. These approaches ensure that administrative procedures not only support and safeguard the rule of law but also meet modern expectations of transparency, efficiency, and participatory processes. Consequently, the traditional function of administrative procedur- al law to control bureaucracy is being expanded to include data and risk man- agement, as well as predictive rather than merely reactive decision-making (more in Ranchordas, 2024). In this context, the rapid development of AI stands out as a key factor that could significantly impact the future functioning of public administration and Central European Public Administration Review, Vol. 22, No. 2/2024 101 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications the role of civil servants as personalised holders of executive power. The pace at which AI technologies are developing often outstrips existing legal frame- works, necessitating their continuous adaptation to address new ethical and legal considerations, dilemmas, and risks. AI technologies, capable of process- ing large amounts of data, performing predictive analyses, and automating decision-making processes, are revolutionising the delivery of public services and the way individuals’ rights and obligations are determined. However, in- tegrating such systems into administrative procedures is not without its chal- lenges. The incorporation of AI into public administration raises several sig- nificant regulatory challenges, particularly in ensuring the accountability and transparency of decision-making processes (Grant et al., 2023; Grimmelikhui- jsen, 2023; Galetta and Hofmann, 2023; Cetina Presuel and Martinez Sierra, 2022). This includes ensuring well-established procedural and constitutional principles are upheld alongside the principles of personal data protection (Rhahla et al., 2021; Goldsteen et al., 2022; Kovač and Rudolf, 2022). To meet these challenges, it is essential that today’s legal frameworks spe- cifically address all dimensions of introducing automated decision-making in public administration. This orientation requires not only minor revisions of ex- isting regulations but also a forward-looking approach, including defining the guidelines on the use and protection of personal data in administrative pro- cedures. The current legal framework for AI, consisting of a set of European and other international guidelines, represents an important step towards cre- ating a comprehensive regulatory framework for both the development and use of AI systems (see ELI, 2022; Jančova and Fernandes, 2022). The Slovenian GAPA remains underregulated in this respect, despite the coun- try updating its PDPA-2 with the GDPR in late 2022. However, there are two systemic problems here that remain completely or largely unresolved. First, the GAPA has been in force since 1999 and has never been significantly mod- ernised despite the rapid evolution of the administrative environment, includ- ing digitalisation (Kovač, 2022; Dragos, 2023). There is virtually no mention of digitisation or even automated decision-making, the necessary guarantees, or legal protection, with only a few minor and comparatively outdated rules on e-communication and the automated issuing of certificates or signing of decisions issued by the IT system. Moreover, the competent decision-makers do not even feel the need to include these rules in the GAPA,10 even though other EU countries are either comprehensively amending their laws (e.g. Hun- gary, Croatia, Romania, Finland; see della Cananea and Parona, 2024) or find practices to be radically ahead of regulation (e.g. Netherlands, USA, Estonia; see Ranchordas, 2024). Second, the implementation of the GDPR, together with national laws, has already identified procedural shortcomings at the EU level, particularly con- cerning the principles of good administration in cross-border decision-making 10 This can be inferred from the strategies and published plans of the Slovenian Government and Ministry of Public Administration, which in 2023 established the baselines but left the regula- tion to be defined by sector-specific regulations, case law, and a potential new law following the completion of the analysis of comparative regimes, expected to be concluded in 2026. Central European Public Administration Review, Vol. 22, No. 2/2024102 Grega Rudolf, Polonca Kovač on the processing of personal data. This led to the drafting of what is known as “GDPR’s cross border procedural regulation”11 in 2023, which strengthens certain rights of the parties, particularly regarding good administration, such as the right to appeal, access to data, and alternative resolution disputes. This underscores the importance of an additional and substantively higher level of regulation at both the EU level and national levels. Moreover, the European Commission published a proposal in 2021 and adopted a general AI Act in 2024, a landmark move to address the rapidly evolving field of AI in society. This initiative represents an ambitious effort by the EU to establish a coherent set of rules for the development, deploy- ment, and use of AI technologies to protect the fundamental human rights of individuals and guide AI development in a coherent and human-centred way (see more Palmiotto, 2024). Notably, the AI Act focuses primarily on the use of AI systems rather than the technology itself. The main added value of the AI Act, apart from its direct and uniform applicability across the EU, is the incorporation of a system of different levels of risk, which is crucial in the so- cial welfare sphere or, more generally, in terms of authoritative interventions and public services. It adopts a pyramidal approach based on minimal, limited, high, or unacceptable risk, which translates into prohibited, partly permitted, or relatively free use of AI, with corresponding conformity assessments and ex post surveillance. According to Article 6 of the AI Act, the use of an AI system is not considered to be high-risk if the AI system is intended to perform narrow procedural tasks, improve the results of previously completed human activi- ties, detect decision-making patterns without replacing human assessment, or perform preparatory tasks to risk assessments. Nevertheless, any AI sys- tem dealing with profiling of natural persons is always classified as high-risk. Pursuant to Article 7 of the AI Act, risk assessments must therefore take into account, inter alia, the extent to which persons who are potentially harmed or suffer an adverse impact are in a vulnerable position in relation to the deploy- er of the AI system, in particular due to the imbalance of power, knowledge, economic or social circumstances, or age. The introduction of automated decision-making systems in administrative procedures, as foreseen in the above Act, represents a key moment in the dig- ital transformation of public administration and administrative procedures. Although the proposed Act lays down some essential foundations for regulat- ing such systems, balancing innovation in AI technologies and human rights protection, it highlights the pressing need for further legal development within national frameworks. In this context, national rules governing admin- istrative procedure (in Slovenia, at least the GAPA and the PDPA-2) should be amended to take into account the nuances of using these systems as future co-pilots in managing and deciding in these procedures, or even as (relatively) autonomous agents making fully automated decisions. These changes should specifically address the integration of AI technologies into procedures, par- 11 See the Proposal for a Regulation laying down additional procedural rules relating to the enforcement of GDPR (July 2023); https://ec.europa.eu/commission/presscorner/detail/en/ ip_23_3609. Central European Public Administration Review, Vol. 22, No. 2/2024 103 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications ticularly to ensure fair process and the principles that protect individuals from authorities, with due consideration of the principles of fairness, accountabil- ity, and transparency throughout the procedure. In addition to the above, the regulatory framework for the future use of AI systems for automated decision-making should ensure that preparatory de- cisions or results generated by AI systems in administrative procedures (in- cluding predictions, assessments, or other documents relied on by officials in decision-making) are considered intermediate substantive decisions in the procedure. This would ensure adequate legal protection against such deci- sions and the resulting entitlements, thereby upholding the principles of both data protection and administrative law (transparency, accuracy, etc.). The fol- lowing conditions should also apply to these decisions: – A party to the procedure should be aware that such a decision is being taken. This supports the principles of transparent processing of personal data, openness of public administration, and transparent management of administrative procedures. It also aligns with the protection of the rights of the parties, legality, and the party’s right to be heard. The party should be informed not only of the existence of the automated decision but also of the data deemed legally relevant by that decision and the process of weighing these facts, including the weights assigned by the algorithm for each data to generate the result; – A party to the procedure should have the opportunity to comment on and challenge the result, as well as make other submissions or challenge the in- accuracy of both the input and the output data. This aligns with the princi- ples of accuracy of personal data, substantive truth, legality, the right to be heard, and the protection of the rights of the parties and the public interest; – A party to the procedure should be able to reject the automated decision, at least in part, or request that an official, i.e., a human decision-maker, substantively participate in the decision-making process. This would en- sure that the automated decision/prediction/assessment does not apply to them, consistent with the principles of protection of the rights of the parties and the public interest, the right to be heard, and legality; – A party to the procedure should have the possibility of legal protection and thus to challenge the automated decision. This upholds the principles of legality in administrative procedure and effective legal protection. If AI- generated results (e.g. recommendations, assessments, opinions) are used in administrative decision-making, it should be further specified that an ap- peal against a contested decision (in this case, an AI-generated result) sus- pends the procedure until the appeal is decided by the appellate body or the court in an administrative dispute. To preserve the principles of legality and effective legal protection, it is essential that the parties whose final decision will, in its essence (compare paragraphs 61 and 62 of the Schufa case (CJEU C-634/21)), be based on the AI-generated result can effectively challenge such result before the final decision is made. Given the signifi- Central European Public Administration Review, Vol. 22, No. 2/2024104 Grega Rudolf, Polonca Kovač cant reliance of individuals on AI-generated decisions (in theory known as automation bias; see Parycek et al., 2023), it is crucial to establish whether the disputed AI result is based on correct facts. Only then can the final deci- sion rest on the substantive truth of the case, reducing the need to resort to legal remedies. In addition to respecting the principles and rules of administrative law, na- tional rules on the protection of personal data must be enhanced regarding the use of AI systems in public administration. This is necessary to address the challenges of handling the vast volume, speed, and variety of data these sys- tems process. Automated decision-making should be covered already by the principle of legality. This includes establishing clear legal bases for process- ing personal data at all stages of using these systems (from development to deployment), pursuing of the principle of minimum necessary data process- ing, and ensuring that individuals’ data protection rights, such as the right to access personal data and the right to object to processing, etc., are duly re- spected. Adapting future regulatory frameworks to the unique capabilities of AI in personal data processing is essential. This involves reinforcing the prin- ciples of accountability and transparency of automated decision-making and addressing ethical and legal challenges, such as discrimination, in line with the AI Act. However, gaps remain regarding the digitalisation of administrative law at a systemic level, such as the lack of an EU Regulation on administrative procedures or some other general administrative act or digital rights code (Jančova and Fernandes, 2022). Such regulatory gaps lead to negative conse- quences for society, e.g. a lack of legal certainty, disproportionate burden on citizens, and a lack of awareness about administrative injustice. The answers to the two opening research questions are now apparent. Re- garding the principles of administrative law and personal data protection most affected by the introduction of AI systems for automated decision-mak- ing in administrative procedures, it is evident that it is difficult to single out a specific principle, as they are inherently intertwined. However, the integra- tion of automated decision-making systems into administrative procedures significantly impacts the fundamental principles of administrative law. Addi- tionally, the implications for personal data protection are profound, as AI sys- tems require stringent measures to prevent misuse and breaches of personal data protection, raising concerns about personal data protection and its fur- ther use in decision-making. Among the traditional administrative-procedural principles underpinned by EU personal data protection safeguards, the prin- ciples of legality, the right to be heard, giving reasons for the decision, and legal or judicial protection are particularly important (Dragos, 2023; Galetta et al., 2015; Kovač, 2016). Unfortunately, the national legislator in Slovenia has not (yet) addressed these dilemmas, unlike neighbouring and other countries (for instance, Fin- land or Croatia, although some might be too efficiency oriented at the ex- pense of basic safeguards protection like Hungary). This leaves it to the courts to decide on a case-by-case basis instead of systemic approach. Regarding the sufficiency of the existing legal framework, significant gaps remain in how Central European Public Administration Review, Vol. 22, No. 2/2024 105 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications these systems should be used in administrative procedures, particularly since the national legal order, at least in Slovenia, does not explicitly regulate their use. Therefore, in response to the second research question on the extent to which EU regulations, particularly the GDPR and the Slovenian PDPA-2 and GAPA, adequately regulate the balance between respect for the principles of personal data protection and effective public administration in Slovenia, it can be stated that trends in Slovenia are significantly slow and unambitious in practice. However, key developments at the EU level, particularly the adop- tion of the AI Act, offer hope. For Slovenia, the primary safeguard against automated decisions is currently Article 22 of the GDPR, which prohibits such decisions unless adequate safeguards are provided, such as the intervention of a human decision-maker, transparency of processing, and the possibility to challenge the decision and one’s view. The balance of power between AI systems and human decision-makers is central to the debate on AI’s role in public governance. While AI can provide valuable insights and efficiency in conducting administrative procedures, the ultimate responsibility for decisions, especially those with significant implica- tions for the rights and obligations of individuals, must remain with human decision-makers (cf. Palmiotto, 2024). AI should be used ‘merely’ as a tool to enhance human judgement, not replace it, thus preserving the human touch that is essential for ethical and responsible decision-making and exercise of power. Successfully integrating good foreign practices into the Slovenian (administrative) legal environment requires a thorough, systematic, and well- thought-out approach. A comprehensive review of the extensive existing practices of such systems in public administration is needed, assessing the consistency of these uses with the existing legal framework, which covers the rules of administrative law, personal data protection, and broader con- stitutional guarantees. By ensuring procedural adjustments and robust safe- guards, the legal framework should prevent AI systems from undermining existing legal principles, which, at least in part, still need to be developed. By fostering a legal environment where technological progress and fundamental legal principles coexist harmoniously, it can be ensured that AI systems, with their automated ability to make predictions, assessments, or even decisions, do not undermine the rule of law and good administration but, together with other rules and principles, reinforce these guarantees. 7 Conclusion Artificial intelligence, once a concept of science fiction, is now shaping the reality of public administration. As AI technologies become increasingly inter- connected within administrative processes, we find ourselves at the thresh- old of a new era. This transformation comes with plenty of potential: AI can streamline decision-making, enhance the efficiency of administrative proce- dures, and fundamentally reshape how personal data is being protected (or even eroded). Its ability to process large volumes of information quickly and offer predictive insights provides a vision of a future where administrative work is more responsive, flexible and efficient. Central European Public Administration Review, Vol. 22, No. 2/2024106 Grega Rudolf, Polonca Kovač To answer the research question regarding the AI usage in general and ADM in particular on the principles of administrative law as well as data protection law one can firstly establish a mutual interdependence of both areas. Namely, deciding upon data protection rights is an administrative matter under the scope of fundamental principles. On the other hand, personal data is by nature always applied in administrative procedures, which leads to a requirement to follow the basic principles of both otherwise rather autonomous legal fields. Further, automatization of decision-making and digitalisation of public ad- ministration definitely affect so called traditional principles to be necessarily modernized by acknowledging the AI and ADM impact and their peculiarities, such as AI explainability and still human accountability for the decisions made. However, especially national regulation, at least in Slovenia, lags behind these developments, but with the EU law, e.g. the AI Act, pushing it forward. However, AI progress brings along important challenges that cannot be ig- nored. AI’s role in automated decision-making poses significant questions about how we uphold the rule of law, ensure fairness, and protect individuals‘ rights, particularly regarding personal data protection. What’s at stake is not just the efficiency of public administration, but the foundational principles that have long governed the relationship between the rulers and the ruled. Introducing AI without proper safeguards could weaken those principles, risk- ing arbitrariness and undermining trust in administrative systems and pro- cesses. To address these challenges, the regulatory framework for AI must establish several key safeguards. Firstly, individuals must be informed when an AI-driven decision is being made, including the specific data inputs that were used and their role in reaching the decision. Secondly, individuals must have the opportunity to comment on or contest these decisions, ensuring transparency and accuracy of the outcomes. Thirdly, human oversight must be preserved, ensuring that AI outputs are not implemented without mean- ingful human review, thereby maintaining procedural fairness. Lastly, robust legal frameworks must be established to allow individuals to effectively chal- lenge AI-driven decisions, thus upholding the principle of legality and ensur- ing comprehensive judicial oversight. As public administrations increasingly turn to AI, it is therefore crucial that these innovations are guided by law and not just by technological possibili- ties. The task ahead is to integrate AI in ways that enhance, rather than under- mine, transparency, fairness, and accountability. Only by carefully navigating this balance can we ensure that AI strengthens public administration while preserving the fundamental values of justice, transparency and personal data protection that form the bedrock of democratic governance. Central European Public Administration Review, Vol. 22, No. 2/2024 107 The Role of Automated Decision-Making in Modern Administrative Law: Challenges and Data Protection Implications References Algorithm Watch (2020). Automating Society Report 2020. At , accessed 3 August 2024. Babšek, M. and Kovač, P. (2023). The Covid-19 Pandemic as a Driver of More Responsive Social Procedures: between Theory and Practices in Slovenia. 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Automated Decision-Making and Administrative Law. In P. Cane et al., ed., Oxford Handbook of Comparative Administrative Law. Oxford, Oxford University Press, Max Planck Institute for Innovation in Competition Research Paper, pp. 19–10. Galetta, U. D. and Hofmann, H. C. H. (2023). Evolving AI-based Automation – The Continuing Relevance of Good Administration. European Law Review, 48/6, pp. 617–635. Galetta, D. U. et al. (2015). The General Principles of EU Administrative Procedural Law. Brussels: European Parliament. https://doi. org/10.2861/641578. Goldsteen, A. et al. (2022). Data Minimization for GDPR Compliance in Machine Learning Models. AI and Ethics, 2, pp. 477–491. https://doi.org/10.1007/ s43681-021-00095-8. Central European Public Administration Review, Vol. 22, No. 2/2024108 Grega Rudolf, Polonca Kovač Grimmelikhuijsen, S. (2023). Explaining Why the Computer Says No: Algorithmic Transparency Affects the Perceived Trustworthiness of Automated Decision‑ making. Public Administration Review, 83(2), pp. 241–262. Hamon, R. et al. (2022). Bridging the Gap Between AI and Explainability in the GDPR: Towards Trustworthiness-by-Design in Automated Decision-Making. IEEE Computational Intelligence Magazine, 17(1), pp. 72–85. https://doi. org/10.1109/MCI.2021.3129960. Jančova, L. and Fernandes, M. (2022). Digitalisation and Administrative Law. European Parliament, Brussels. Kovač, P. (2016). The Requirements and Limits of the Codification of Administrative Procedures in Slovenia According to European Trends. Review of central and east European law, 41, pp. 427–461. https://doi. org/10.1163/15730352-04103007. Kovač, P. (2022). Traditional and European Oriented Principles in the Codification of Administrative Procedures in Central Eastern Europe. Croatian and comparative public administration, 22(1), pp. 9–36. https://doi.org/https:// doi.org/10.31297/hkju.22.1.6 Kovač, P. and Rudolf, G. (2022). Social Aspects of Democratic Safeguards in Privacy Rights: A Qualitative Study of The European Union and China. Central European Public Administration Review, 20(1), pp. 7–32. https://doi. org/10.17573/cepar.2022.1.01. Kuziemski, M. and Misuraca, G. (2020). AI governance in the public sector: Three tales from the frontiers of automated decision-making in democratic settings. Telecommunications policy, 44(6). https://doi.org/10.1016/j. telpol.2020.101976. Palmiotto, F. (2024). When Is a Decision Automated? A Taxonomy for a Fundamental Rights Analysis. German Law Journal, 25, pp. 210–236. https:// doi.org/10.1017/glj.2023.112. Parycek, P., Schmid, V. and Novak, A. S. (2023). Artificial Intelligence (AI) and Automation in Administrative Procedures: Potentials, Limitations, and Framework Conditions. Journal of the Knowledge Economy, pp. 1–26. Ranchordas, S. (2024). The Invisible Citizen in the Digital State: Administrative Law Meets Digital Constitutionalism. In J. De Poorter, C. 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Publications Office of the European Union, Luxembourg. 109 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ DOI: 10.17573/cepar.2024.2.05 1.01 Original scientific article The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice Jowanka Jakubek-Lalik University of Warsaw, Poland j.jakubek@uw.edu.pl https://orcid.org/0000-0002-4365-1423 Received: 7. 10. 2024 Revised: 6. 11. 2024 Accepted: 9. 11. 2024 Published: 27. 11. 2024 ABSTRACT There are many new challenges to the classic approach to decision-making in administrative law. Public authorities are discovering the potential of AI systems to improve the efficiency and accuracy of administrative pro- ceedings. However, automated decision-making (ADM) and AI-supported decision-making create new dilemmas, especially in relation to account- ability, data protection, and general principles of administrative law. The benefits of AI should therefore be assessed together with the associated risks and threats, with adequate means for control and supervision. The use of AI tools is growing also in the Polish public administration, as is interest in simplifying administrative proceedings and automating the issuance of administrative decisions. However, these trends should be carefully monitored, especially from the perspective of citizens’ rights and potential errors that may differ from the classical, non-automated administrative proceedings. Purpose: This article examines the challenges of introducing AI tools into administrative law and proceedings, as well as the need for specific legal remedies. It questions whether the remedies are the same as in traditional administrative proceedings and whether the instruments provided in existing legislation suffice to ensure adequate protection of citizens’ rights? The methodology used includes an analysis of the legislation and poli- cies, desk research on practical examples, and insights from discussion at the EGPA 2024 Conference. The findings focus on the analysis of existing legislation both in terms of its applicability and practical implementation, especially in light of AI use in public administration. The most important aspect is the link between the use of AI tools and the potential need to design new or adapt existing Jakubek-Lalik, J. (2024). The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice. Central European Public Administration Review, 22(2), pp. 109–128 Central European Public Administration Review, Vol. 22, No. 2/2024110 Jowanka Jakubek-Lalik legal remedies in both imperious and non-imperious domains of public administration, with a special focus on ADM challenges. Practical implications address the new challenges AI poses to decision- making in administrative law. Through practical examples, it also dis- cusses to what extent legal remedies should be tailored to AI tools and how human rights might be affected, necessitating protective measures. These implications are important not only from a legal standpoint, but also for legal practitioners and the public administration as a whole. Originality and value of the article lie in the discussion on the chal- lenges of administrative proceedings and legal remedies in the era of AI. This topic is both highly relevant and timely, as the use of AI will undoubtedly shape the future of public administration proceedings and other activities. Keywords: ADM, administrative law, administrative proceedings, AI, automated decision making, Polish public administration JEL: K400 1 Introduction In recent years, we have observed an unprecedented development of infor- mation and communication technologies, which are increasingly boldly en- tering the space of public and private life. The implementation of AI-based solutions in administration brings with it a number of legal and technological challenges that require in-depth analysis and understanding. The emergence of Artificial Intelligence (AI) has been a major challenge for public administration from the beggining. The changing environment and possibilities created by the development of AI has created many new op- portunities, but also new threats. Public administration might be specifically interested in the potential to use automated decision making (ADMs) and AI- supported administrative decisions – however, the misuse of the new pos- sibilities might create the situation of nouveau ‘détournement de pouvoir’ and substantial threaths to the rights of the parties in administrative proceedings. The AI systems obviously have the potential to improve the efficiency and accuracy of administrative proceedings. What is especially relevant for the public administration bodies is first of all the reduction of mistakes caused by ‘human factor’, improved standardization and simplification of procedures, improved accuracy – especially relating to equality and cohesion, as well as im- proved efficiency. Nevertheless, significant questions arise in relation to who actually takes the decision and who is ultimately accountable for its contents. Another interesting topic is appeal procedure and defining the new standards of administrative proceedings in the context of the AI. As the use of AI tools is growing in public administration, as well as the interest in simplification of the conduct of administrative proceedings, the question arises as to the ex- tent the automated issuance of administrative decisions (ADM) can be used. Central European Public Administration Review, Vol. 22, No. 2/2024 111 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice The ADM and AI-supported decision making create new dilemmas, especially in relation to accountability, data protection and general principles of admin- istrative law. The tendencies to use AI tools should be carefully monitored es- pecially from the perspective of citizens’ rights, as the potential errors might be different from the classical, non-automated administrative proceedings. As the practice of populist and authoritarian regimes demonstrate, the ad- ministrative measures can be effectively used both to protect and to oppress the citizens. AI seem to provide additional challenges in these aspects, as it increases the efficiency of administrations’ performance – therefore can cre- ate both advantages, as well as serious threats. This article discusses the challenges of AI in the context of Polish regulations and practice. Firstly, the methods and research questions are introduced. Sec- ondly, the findings relating to regulations, policies and practical examples are analysed. Finally, the need for specific legal remedies is discussed, in relation to activities performed in non-imperious and imperious spheres of public ad- ministration activity. 2 Methods This article focuses on achieving its objectives via several methodological tools. The following components outline the research methodology: Analysis of the legislation and policies involves review of existing laws, regula- tions and policies relating to the use of AI in and by public administration in Poland. The analysed laws are from European level (EU law and Council of Europe regulations) and from national level. Also, reports and studies related to the topic, addressing performance and challenges posed by the AI to the public administration are analysed. Desk research on practical examples is aimed to provide the practical exam- ples of the use of AI and ADM by public administration, desk research with focus on information published on public administration websites, reports, expert blogs and newspaper articles have been used. Conclusions from discussion during EGPA 2024 Conference have been tak- en into account as well. The presentation of the initial version of the paper and follow-up discussion during EGPA conference allowed the clarification and adjustment of the text and its conclusions. The feedback received after presenting preliminary findings was incorporated and necessary adjustments to the research paper were made to refine the assessment of challenges and conclusions. 3 Results In this chapter the legal regulations and policies are analysed, as well as their practical implementation and real-life examples of using AI tools by Polish public administration. The important differenciation is between using AI in Central European Public Administration Review, Vol. 22, No. 2/2024112 Jowanka Jakubek-Lalik non-imperious sphere of activity (like chatbots issuing information) and impe- rious sphere (where administrative decisions are issued). 3.1 Polish Regulations and Practice Poland has not established specific legal acts regulating the operation of arti- ficial intelligence, because - like many other European Union countries - it was anticipating the adoption of EU regulations, i.e. AI Act and the Directive on liability for artificial intelligence. However, this does not mean that the Polish government and government institutions remained passive in the face of the technological revolution based on the development of AI. 3.1.1 European Law Regulations AI regulations in the European Union can be found, among others, in legal acts on cybersecurity and personal data protection. One of the key regulations on AI was Directive of the European Parliament and of the Council (EU) concern- ing measures for a high common level of security of network and information systems across the Union (Directive 2016/1148), the so-called NIS Directive , adopted on 6 July 2016. It was the first European law on cybersecurity. The Directive imposed a number of obligations on the Member States, obliging them, among others, to establish specific institutions and introduce coopera- tion mechanisms. The Directive obliged the Member States to guarantee a minimum level of national capabilities in the field of IT security. Its provisions were to enable the creation of both a centralised system at national level and the division of competences between various entities. The NIS Directive did not directly concern public administration services, unless they were key ser- vices listed therein. However, the document constituted minimum harmoni- sation, and therefore set certain minimum conditions that must be met. It was not intended to limit the ability of the Member States to regulate the is- sue of cybersecurity of public administration. The text of the directive focuses on three pillars: institutions that should be established in the Member States, cooperation at European level and obligations in the field of network and in- formation security.1 In Poland, its provisions were to be implemented by the Act on the National Cybersecurity System of 28 August 2018.2 The next legal act updating the NIS Directive was Directive 2022/2555 (NIS 2) concerning measures for a high common level of cybersecurity across the Union. This Directive, which entered into force in 2023, is an evolution of the regime introduced by the NIS Directive , providing for legal measures to increase the overall level of cybersecurity in the EU. The modernised legal framework aims to keep up with the rapid digitalisation and the changing landscape of cybersecurity threats. By extending the scope of cybersecurity rules to new sectors and entities, it further aims to increase the resilience and 1 https://cyberpolicy.nask.pl/dyrektywa-nis-czy-piersze-zdrowiee-prawo-w-zakresie-cyberbez- pieczenstwa/ 2 Act of 5 July 2018 on the national cybersecurity system, Journal of Laws 2018 item 1560, as amended. Central European Public Administration Review, Vol. 22, No. 2/2024 113 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice incident response capacity of public and private entities, competent authori- ties and the EU as a whole.3 Entities designated by Member States as operators of essential services in the above sectors are required to take appropriate security measures and notify the competent national authorities in the event of major incidents. In addi- tion, essential digital service providers such as search engines, cloud comput- ing services and online marketplaces will have to comply with the security and notification requirements set out in the Directive.4 Another important regulation concerning AI is the EU Data Act Regulation (Data Act) , adopted by the European Parliament on 9 November 2023.5 The key assumptions of the Data Act are: – Increasing legal certainty for companies and consumers engaged in data generation, by establishing clear rules on the permissible use of data and the associated conditions, while sustaining incentives for data holders to continue investing in high-quality data generation. – Mitigating the abuse of contractual imbalances that impede equitable data sharing. This entails safeguarding enterprises from unjust contractual terms imposed by a party wielding a considerably stronger market position. – Rules enabling public sector bodies to access and use data held by the pri- vate sector for specific public interest purposes. For instance, public sector bodies will be able to request data necessary to help them respond quickly and securely to a public emergency, with minimal burden on businesses. – New rules setting the framework for customers to effectively switch bet- ween different providers of data-processing services to unlock the EU clo- ud market. This will also contribute to an overall framework for efficient data interoperability.6 Another regulation that could significantly affect the use of AI in public ad- ministration is the Cyber Resilience Act (CRA).7 The regulation is intended to strengthen cybersecurity requirements for safer digital products. As hardware and software are increasingly subject to effective cyberattacks and increasing cybercrime, the regulation aims to minimize security gaps and improve the delivery of security updates, as well as to facilitate the understanding and access of information by users. The most important goals of the regulation are therefore to ensure the proper functioning of the internal market and to create conditions that allow users to take cybersecurity into account when choosing and using products containing digital elements.8 3 https://digital-strategy.ec.europa.eu/pl/policies/nis2-directive 4 https://www.gov.pl/web/cyfryzacja/operatorów-uslug-kluczowych 5 https://www.eu-data-act.com/ 6 https://digital-strategy.ec.europa.eu/en/policies/data-act 7 At the time of writing, the European Cyber Resilience Act has not yet been finalized. 8 https://digital-strategy.ec.europa.eu/en/library/cyber-resilience-act Central European Public Administration Review, Vol. 22, No. 2/2024114 Jowanka Jakubek-Lalik What is also important is the relation of the aforementioned regulations to the provisions of the General Data Protection Regulation (GDPR).9 The legal definition of personal data is broad, so many data collected and used by AI are subject to special protection under the GDPR. Another challenge is the lack of regulations regarding access to or exchange of non-personal data, which lim- its the possibilities of using this type of data in AI systems. This issue is also not resolved by the Regulation of the European Parliament and of the Council on the framework for the free flow of non-personal data in the European Union. In June 2024, The European Union has introduced new legislation on artificial intelligence: The EU AI Act.10 It is the first act to lay the foundations for the complex regulation of AI in the EU. On 1 August 2024, the AI Act entered into force – as the world‘s first comprehensive legal regulation for artificial intel- ligence systems and models. The regulation aims to ensure security, transpar- ency and compliance with European values in the development and use of AI. The act takes the form of a regulation, which means that its provisions apply directly throughout the Union. The Artificial Intelligence Act is the first law of its kind in the world to com- prehensively regulate the AI sector. The regulation is based on a risk-based approach, making the obligations of providers and entities implementing AI models and systems dependent on the potential risk of harm to citizens, societies and economies. The introduction of the AI Act was aimed to be an important step towards responsible and ethical development of technology, provide foundation for innovations, but above all to guarantee security and respect for human rights in the face of rapidly developing technology. An important act relating to privacy, data protection and use of AI by public administration, established long before the GDPR, is the Council of Europe Convention 108.11 The Convention opened for signature on 28 January 1981 and was the first legally binding international instrument in the data protec- tion field. Under this Convention, the parties are required to take the neces- sary steps in their domestic legislation to apply the principles it lays down in order to ensure respect in their territory for the fundamental human rights of all individuals with regard to processing of personal data. Convention 108 lays out legal definitions for the main concepts of data protection law such as: personal data, data controller and processing activity, data subject rights and the idea of privacy as a “take-back control” by individuals over the pro- cessing of their personal data. In addition, principles of data processing such as: lawful, fair, purpose specific, and proportional data processing through privacy by design and by default, compliance, transparency, data security, and risk management were established by this document, reaching an important 9 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 10 The EU AI Act was published in the Official Journal (OJ) of the European Union on 12 July 2024. 11 The Convention for the Protection of Individuals with regard to Automatic Processing of Per- sonal Data (CETS No. 108) Central European Public Administration Review, Vol. 22, No. 2/2024 115 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice cornerstone to protect privacy and provide for the free flow of personal data (Ragan, 2022). What needs to be noted however, is the fact that the existing regulations, adopted in the area of personal data protection, do not address the systemic challenges linked to automated decision-making. They are focused on the situation of a particular individual and the decision made in their case. Both the provisions adopted in the GDPR and the Convention 108 adopted by the Council of Europe are focused on solutions such as prohibition of automated decision making (limited by a number of exceptions) or providing access to the logic standing behind a particular decision. However, algorithms used in automated decision-making are not subjected to regulations which would in- crease their level of transparency (Mazur, 2021, pp. 271–271). 3.1.2 Polish Law Regulations Given the complexity of this matter, there is no single law on AI in Poland, nor is there any plan to enact any. Currently, the operation of this technology is regulated by four separate groups of regulations concerning cybersecurity, personal data protection, civil liability and intellectual property . The Polish legal system also does not provide for any specific regulations on AI. Individual regulations are contained in many legal acts (including telecom- munications law,12 public procurement law,13 entrepreneurs’ law,14 and, more broadly, tax law, safety regulations, civil law - in particular obligations, includ- ing the relationship between the user and the manufacturer, as well as ad- ministrative law, in particular regarding transport and spatial planning). These regulations do not directly concern AI, but rather contain general regulations applicable to the relationship between entities using these solutions and their manufacturers. In some cases, they can also be used in a subsidiary manner. Of course, the key place in the regulatory system is played by the previous- ly mentioned Act on the National Cybersecurity System of 28 August 2018, which implements the NIS Directive into the Polish legal system. Full imple- mentation of the NIS Directive also required the adoption of two regulations of the Council of Ministers, i.e. on recognizing an incident as serious,15 and on the list of key services and thresholds of significance of the disruptive effect of an incident on the provision of key services.16 The purpose of the Act on the National Cybersecurity System was to develop legal regulations enabling the implementation of the NIS Directive and the creation of an effective IT security system at the national level . This system 12 Act of 16 July 2004 – Telecommunications Law, Journal of Laws 2004 No. 171 item 1800. 13 Act of 11 September 2019 - Public Procurement Law Journal of Laws 2019 item 2019. 14 Act of 6 March 2018 - Entrepreneurs‘ Law, Journal of Laws 2018, item 646. 15 Regulation of the Council of Ministers of 31 October 2018 on the thresholds for recognizing an incident as serious, Journal of Laws 2018 item 2180. 16 Regulation of the Council of Ministers of 11 September 2018 on the list of key services and the significance thresholds of the disruptive effect of an incident on the provision of key ser- vices, Journal of Laws 2018, item 1806. Central European Public Administration Review, Vol. 22, No. 2/2024116 Jowanka Jakubek-Lalik aims to ensure cybersecurity at the national level, in particular the uninter- rupted provision of key services and digital services, and to achieve an ap- propriately high level of security of IT systems used to provide these services. Cybersecurity System includes key service operators (including those from the energy, transport, health and banking sectors), digital service providers, national level CSIRTs (Computer Security Incident Response Teams), secto- ral cybersecurity teams, entities providing cybersecurity services, competent authorities for cybersecurity matters and a single point of contact for com- munication within the framework of cooperation in the European Union in the field of cybersecurity matters. Key service operators are obliged to imple- ment effective security measures, assess the risk related to cybersecurity and provide information on serious incidents and their handling in cooperation with the national level CSIRT. The above entities are also obliged to appoint a person responsible for the cybersecurity of the services provided, handle and report incidents and share knowledge on cybersecurity. Public administration bodies, as well as telecommunications entrepreneurs and digital service pro- viders, i.e. online trading platforms, cloud computing services and internet search engines, are also included in the national cybersecurity system. The Act defines and regulates the obligations of digital service providers, defines incidents having a significant impact, the tasks of CSIRT NASK, CSIRT GOV and CSIRT MON, identifies the competent authorities and defines their tasks, specifies the procedure for qualifying an entity as a key service operator and its obligations, presents the types of incidents and their handling, defines the entities responsible for receiving reports such as the Sectoral Cybersecurity Team or for creating a legal framework, such as the Single Point of Contact at the Minister of Digital Affairs. As mentioned earlier, the breakthroug moment in EU regulation was the adoption and implementation of AI Act. The work on adapting Polish law to the provisions of the AI Act at the Ministry of Digital Affairs began at the be- ginning of 2024, after the European Parliament approved the new regulation on 13 March 2024, with first consultations announced on 2 April 202417 dur- ing which a preliminary opinion was obtained from AI sector stakeholders on the directions of introducing the Act into the Polish legal system. Due to the regulated matter, key elements of the AI Act shall be introduced gradually. As a rule, the provisions of the Act will apply after 24 months from its promulgation, however, in the case of some provisions, these deadlines are 6, 12 and 36 months, respectively. Already in February 2025, regulations will come into force banning the use of particularly dangerous AI systems throughout the EU. Then, in August 2025, key provisions for AI supervision will enter into force, including the definition of the market surveillance au- thority and the notifying authority, general purpose AI models, as well as those concerning penalties for violations of the Act. The last provisions to enter into force will be those relating to high-risk AI sys- tems and the obligations related to them. They will enter into force in August 17 https://www.gov.pl/web/cyfryzacja/wdrozenie-aktu-o-ai---prekonsultacje Central European Public Administration Review, Vol. 22, No. 2/2024 117 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice 2026 and, in the case of certain high-risk systems that are part of products subject to separate standards, in August 2027. 3.1.3 AI Development Policy in Poland On December 28, 2020, the Council of Ministers adopted the AI Development Policy in Poland.18 The document sets goals to be achieved in the short term (2023), medium term (2027) and long term. The goals cover the development of Polish society, economy and science in the area of artificial intelligence. Examples of goals established by the Council of Ministers include: – In the short term – increasing demand for AI solutions; – In the medium term – perceiving Poland as a producer of AI systems outsi- de the country; – In the long term, Poland to be situated among the top 25% of economies producing innovative AI solutions. In addition, the AI Development Policy in Poland describes the actions that Poland should take to achieve the above-mentioned goals and to become a beneficiary of the data-based economy, and Poles – a society aware of the need to improve digital knowledge and skills. In connection with the development of AI, the document envisages the estab- lishment of bodies such as: – AI Policy Task Force (operating at the Council of Ministers Committee for Digital Affairs, coordinating the activities of public institutions in the imple- mentation of the AI Policy); – AI Observatory for the Labor Market (monitoring and researching the im- pact of AI on the labor market); – AI Legislative Team (appointed to address legal and ethical challenges su- pporting the implementation of the AI Policy). 3.1.4 Administrative Regulations Relating to Use of AI and ADM One of the most important, if not the most important, function of adminis- trative law is the defense of the individual against abuse of power by state authorities. The fundamental constitutional principle19, according to which public authorities can act only on the basis and within the limits of the law, is to protect citizens and ensure predictability of the actions of the state by limit- ing the possibility of interference with the sphere of their rights and freedoms (Jakubek-Lalik, 2023, April 27). Polish administrative law does not address specifically the use of AI and ADM. In accordance with Polish administrative regulations, administrative decisions are always issued by an authorised official, representing administrative body. An administrative decision is defined as a unilateral legal act of a public ad- 18 Polityka dla rozwoju sztucznej inteligencji w Polsce od roku 2020, Załącznik do uchwały nr 196 Rady Ministrów z dnia 28 grudnia 2020 r. (poz. 23). 19 Art. 7 of Polish Constitution. Central European Public Administration Review, Vol. 22, No. 2/2024118 Jowanka Jakubek-Lalik ministration body, which comes into effect by submitting a declaration of will by the public administration body (Wróbel, 2012). An administrative decision is a ruling of a public administration body with binding consequences of the applicable norm of administrative law for an individually specified entity and in a specific case (Dawidowicz, 1980, p. 47). In accordance with the provision of art. 109 § 1 of the Code of Administrative Procedure,20 the manifestation of the act of will of the body towards the party may take place by delivering the decision in writing or by means of electronic communication. An excep- tion to the above rule is the oral announcement of the decision, in a situation where the interest of the party speaks in favor of it and the legal provision does not prevent it. Parties may also be notified of decisions by announce- ment or in another manner of public announcement customarily accepted in a given location, if a special provision allows for such a possibility (art. 49 of the Code of Administrative Procedure). Nevertheless, the use AI tools is not totally prohibited. The AI tools can be used to create the design, as well as using the application suggesting the draft con- tent of a decision, however the limitation means that it is always the official who is responsible for the final content. Also, machine learning algorithms can be used as support - provided that decisions are still not made automatically. However, using AI to support administrative decisions can create specific problems and challenges, especially in relation to privacy, data protection, as well as ethical issues, that are not the same as in regular, “old fashioned” ad- ministrative proceedings. For example, processing digital data poses higher risk in terms of cybersecurity, i.e. malicious acts that seek to damage data, steal data, or disrupt digital life in general. Cyber threats include i.a. comput- er viruses, data breaches, Denial of Service (DoS) attacks, and other attack vectors. Using algorithms means also that they are only as impartial as the programs and information provided to create them, as they learn to make decisions based on training data, which can include biased human decisions or reflect historical or social inequities, even if sensitive variables such as gender, race, or sexual orientation are removed (Manyika, Silberg and Presten, 2019). 3.2 Examples of Use of AI Tools by Public Administration in Poland Today, AI is used in various sectors and activities by public administration, such as: a) detection and control of abuse (28%), b) improvement in public levy collection rates (27%), c) personalized citizen services (including virtual assistants, 26%), d) live event and accident tracking and reporting (26%), e) optimization of social spending (25%), f) optimization of tax/fee levels (25%), 20 Law on 14 June 1960 Code of Administrative Procedure, Dz. U. 1960 Nr 30 poz. 168, as amended. Central European Public Administration Review, Vol. 22, No. 2/2024 119 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice g) improvement in the effectiveness of internal processes (23%), h) security and response to cyber threats (23%) (Kosowska and Zborowska, 2020). Polish administration, therefore, seems to be quite aware of tangible benefits to the state and its citizens by using AI instruments. As explained earlier, the AI allows, among other things, to make quick and accurate decisions, detect abuses and irregularities, and consequently, improve the level of public ser- vices. Artificial intelligence is used, for example, in automated document anal- ysis. Systems specialised in this area can scan the content of letters, compare them with other documents, identify keywords and categorise correspond- ence. The AI tool is able to decide whether, how and by which team a given letter should be further processed (Kosowska and Zborowska, 2020). The artificial intelligence component is currently used by Polish public admin- istration mainly for non-imperious acts. Examples include chatbots and virtual assistants that support citizens in obtaining information and submitting ap- plications. Officials can use tools for quick document analysis in the form of advanced text recognition analysis, recordings, etc. Quick document analysis, generating summaries, historical analysis of previously issued decisions or ap- plicable legal acts and regulations that relate to a given case will definitely speed up the work of officials and contribute to improving the handling of citizens‘ inquiries. AI not only supports analytical processes, but can also help detect abuses, which is already happening, for example, in tax offices, which, thanks to the analysis of tax data, improve fraud detection.21 Artificial intelligence algorithms can be successfully used to automate rou- tine administrative processes, such as considering applications for building permits, issuing environmental decisions, or granting social benefits.22 Some cities are already experimenting with AI technologies to better manage ur- ban traffic, monitor air pollution, or forecast weather threats. The applica- tions of solutions based on AI and advanced analytics can be also found in the area of public finance, healthcare, social welfare, the security sector and the justice system. The most popular use of AI tool are the chatbots providing answers to FAQs. As per May 2023, AI systems were supporting responses to approx. 7,000. calls per month in the ministries23. Concrete examples include i.a. the Virtual Clerk that answers customers’ questions regarding the use of the services of the National Labor Inspectorate, the Central Registration and Information on Business and the National Court Register. Another feature is the Virtual Assistant - a system used to provide a hotline service for entrepreneurs, fu- ture entrepreneurs and others interested in obtaining information about the European Funds for a Modern Economy program. The Ministry of Finance 21 https://www.doradcasamorzadu.pl/6897-korzy%C5%9Bci-i-wyzwania-zwi%C4%85za- ne-z-wdra%C5%BCaniem-technologii-ai-w-administracji-publicznej.html. 22 Some examples of these kinds of decisions from Hungarian administration are explained, see: Bencsik, 2024, pp. 11–23. 23 https://www.rp.pl/urzednicy/art38489011-ai-pomaga-rozwiazywac-sprawy-w-urzedach-zast api-czesc-urzednikow Central European Public Administration Review, Vol. 22, No. 2/2024120 Jowanka Jakubek-Lalik also uses, among others, chatbot to answer the most frequently asked tax questions.24 Another area where AI solutions are more widely used is healthcare services. The use of AI can have a significant impact on improving the efficiency of the entire healthcare system through a better understanding of the needs of patients and facilities and more effective management of the entire sys- tem. Additionally, AI solutions can improve the efficiency of administrative activities, support doctors in diagnostics and making medical and organiza- tional decisions. For example, algorithms enable more effective assessment of tomographic images in oncology. As a rule, the assessment of tumors that qualify for surgical removal is carried out manually by radiologists. This is a tedious process that can generate many errors and omissions. Advanced AI technologies, including image recognition and deep learning models, pro- vide information on the total volume of the tumor and create its three-di- mensional representation. This allows doctors to more accurately determine whether a life-saving surgery is feasible or whether a different treatment strategy should be chosen.25 Although such solutions are convenient, one must also be aware of the risks they carry. In Poland, there is no regulation on the liability of artificial intel- ligence for potential misleading. Therefore, there is a need for regulations on advice provided using chatbots, which would exclude the liability of the office. These regulations should be easily accessible and understandable to the average user. Also, in the case of using AI tools in healthcare, the account- ability issues should be properly and clearly regulated. 3.3 AI Supported Decision-Making and the Question of ADM As already mentioned, in accordance with Polish administrative law, the ad- ministrative decisions should be always issued by an authorised official. AI tools can only be used to help create its design, as well as using the applica- tion suggesting the draft content of a decision, but it is always the adminis- trative body, represented by authorized official, who is responsible for the final content. And indeed, there is evidence that the Polish administration uses artificial in- telligence in its administrative proceedings. The most valuable advantage of using AI is the increased efficiency when creating various types of documents, especially those that are repeatable or that require performing certain cal- culations and can be automated. By properly adding data, and configuring buttons allows to create a virtual assistant to generate a complete PDF. In such an extensive procedure of automation of calculating e.g. interest rates, amounts of administrative penalties or generating appropriately standard- ized documents, then the question can be asked about the limits of this inter- 24 Ibidem. 25 https://bank.pl/jaka-jest-globalna-i-polska-perspektywa-rozwoju-sztucznej-inteligencji-w-ad ministracji-publicznej/ Central European Public Administration Review, Vol. 22, No. 2/2024 121 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice vention, and whether not to allow the AI to create a full document, e.g. with personal data like address etc. (Jakubik and Prabucki, 2024). Specific examples of AI used in administrative proceedings are i.a. labor of- fices and organisational units relating to social and family security, where algorithms play an increasing supporting role for the officials in issuing ad- ministrative decisions. The Agency for Restructuring and Modernisation of Agriculture uses artificial intelligence when disbursing EU funds - based on data collected by satellites, the system is able to verify what and where farm- ers applying for EU funds are growing. It also identifies the treatments being performed and determines the vegetation cover. The Ministry of Health also has extensive experience in using artificial intelli- gence models. For example, in the e-Stethoscope pilot program, auscultatory changes in the respiratory system of patients with coronavirus were assessed. The system detected, among other things, wheezing and rales, but also de- termined the heart rate. Another example is the e-Health Center, which uses artificial intelligence to track down abuses in the healthcare system.26 It is therefore clearly visible, that the public administration is increasingly inclined to rely on AI tools as assissting in conducting adiministrative pro- ceedings. It is not surprising, as there are substantial profits in improved accuracy and speeding up of the proceedings. The bottom line, however, remains in the issue of accountability for the administrative decisions and the legal consequences thereof. Here, there is no doubt that the process has to be fully controlled by the responsible official, who acts on behalf of the administrative body. 4 Discussion The new challenges and practice of using AI and elements of ADM in public administration activities, and especially administrative proceedings, leads to the question if there is a need for introducing new, specific legal remedies. Also, if the answer is positive, to what extent these remedies should address different spheres of activities: imperious (like issuing administrative deci- sions, having legally binding effect and consequences in the field of subjec- tive rights) vs non-imperious activities (factual actions, like providing informa- tion i.e. chatbots responding to questions)? First of all, as it was already mentioned, there is no regulation regarding the liability of artificial intelligence for possible misleading. Therefore, when chatbots are being used by public administration authorities to answer the questions of citizens, it is unclear who is accountable for any misinformation and consequences thereof. Therefore, from the public administration per- spective, much needed development is introducing regulations referring to advice provided using chatbots, that would exclude the office’s liability for 26 https://www.rp.pl/samorzad-i-administracja/art38489011-ai-pomaga-rozwiazywac-sprawy -w-urzedach-zastapi-czesc-urzednikow Central European Public Administration Review, Vol. 22, No. 2/2024122 Jowanka Jakubek-Lalik potential misinformation. These regulations should be easily accessible and understandable to the average user. In relation to the ADM and imperious sphere of activity, the situation is even more complex. As the use of AI might influence directly the legal status of the citizen, the legal remedies need to take that into consideration and provide adequate response. Modernising and improving efficiency of public adminis- tration with the help of artificial intelligence cannot therefore lead to errors, violations of the law, loss of transparency and sacrificing the rights of the par- ties in administrative proceedings. At the first glance, providing specific legal remedies for the administrative actions taken with the assistance of AI seems not to be necessary. The provi- sions on accountability of public administration remain the same – the liability for damages, the criminal and disciplinary offences are still regulated in the same way, and by the same laws. However in this context, it would be advisable also to consider the compli- ance with the principles of administrative law, especially transparency and right to good administration. Public administration bodies are often involved in making decisions and resolving cases in which artificial intelligence could be very useful, bringing significant savings. At the same time, however, the use of administrative power by public authorities using AI, assuming the pos- sibility of unilaterally shaping the situation of entities outside the administra- tion, requires supervision and restrictions expressed in a general way in the principle of legalism. One of the proposals of an instrument that could serve to ensure a balance between supporting innovative development in public administration and limiting the risks associated with the use of AI to decide on the rights and obligations of natural and legal persons could be the requirement for bodies intending to implement AI to conduct an ex ante impact assessment.27 The procedure is being developed in the form of model regulations by a research team established and operating under the auspices of the European Law In- stitute (ELI) (Ziółkowska and Wierzbowski, 2022). It would require the active involvement of a given administration body in the process of creating and testing the solution, so that the body could prepare a report detailing what risks have been identified and how the body (and the described system) is prepared to prevent the risk from materializing or to respond in the event of its occurrence. The preparation of an impact assessment requires the body 27 This topic already provoked some studies and reports in the literature, which describe the potential benefits of using impact assessment when making decisions on the implementation of AI in public administration, e.g.: G. Misuraca, C. van Noordt, AI Watch Artificial Intelligence in Public Services. Overview of the Use and Impact of AI in Public Services in the EU, 2020, https://publications.jrc.ec.europa.eu/repository/handle/JRC120399 (access: 28.09.2024); M. Loi, Automated Decision-Making Systems in the Public Sector. An Impact Assessment Tool for Public Authorities, 2021, https://algorithmwatch.org/en/wp-content/uploads/2021/06/ADMS -in-the-Public-Sector-Impact-Assessment-Tool-AlgorithmWatch-June-2021.pdf; ECP, Artificial Intelligence Impact Assessment, https://ecp.nl/wp-content/uploads/2019/01/Artificial-Intelli- gence-Impact-Assessment-English.pdf; E. Moss et al., Assembling Accountability. Algorithmic Impact Assessment for the Public Interest, 29.06.2021, https://datasociety.net/library/assem bling-accountability-algorithmic-impact-assessment-for-the-public-interest/ Central European Public Administration Review, Vol. 22, No. 2/2024 123 The Challenges of AI in Administrative Law and the Need for Specific Legal Remedies: Analysis of Polish Regulations and Practice to take into account the benefits and potential disadvantages at a very early stage of work on the system, as well as consequences at every level of devel- opment and functioning of the system. Moreover, it could provide in-depth knowledge about the work of this system, and the appropriate shaping and division of the impact assessment criteria can ensure the universality of the principles of conducting the assessment regardless of the diversity of ad- vancement and mechanisms of system operation. The dissemination of this instrument could also contribute to raising awareness of the general risks as- sociated with artificial intelligence in administration and society (Ziółkowska and Wierzbowski, 2022, pp. 507–509). The examples analysed above also indicate that it is necessary to consider the problems generated by AI tools. Introducing such a system to the public sec- tor involves significant legal challenges, primarily in the context of privacy and personal data protection. The development and implementation of AI systems often require the collec- tion, processing and analysis of large data sets, which poses a risk of violating privacy rights. The requirement to comply with the General Data Protection Regulation (GDPR) and other local regulations on the protection of personal data requires public administration bodies to provide appropriate data pro- tection measures, such as anonymization, pseudonymization and strong secu- rity mechanisms. In addition, the use of AI in administrative decision-making sheds light on the issue of accountability for decisions made with the partici- pation or on the basis of AI recommendations. Issues such as the lack of trans- parency of algorithms (so-called black boxes) and potential biases resulting from training data raise questions about the possibility of human control and correction of decisions, which is fundamental to ensuring justice and compli- ance with the principles of a democracy and the rule of law.28 To meet these challenges, it is necessary to create a comprehensive legal framework for the use of AI in administration, also addressing the effective- ness of legal remedies, which will take into account both the technologi- cal potential and the obligations related to the protection of personal data and the rights of citizens. It will also be important to conduct continuous analyses of the impact of AI technologies on the rights and freedoms of individuals, and to develop ethical standards and best practices for creators and users of AI systems in the public sector. This approach will enable the use of the potential of AI for public administration, while minimizing the risk of legal and ethical violations, as well as increasing citizens‘ trust in new technologies used in the area of public services. Being assured that proper legal guarantees, protection of rights and effective legal remedies are in place, the citizens are more likely to have more confidence in the public administration‘s use of AI tools. 28 https://szkolenia.administracjapubliczna.pl/blog/wykorzystywanie-ai-w-administracji/ Central European Public Administration Review, Vol. 22, No. 2/2024124 Jowanka Jakubek-Lalik 5 Conclusion The use of AI in public administration is undoubtedly a breakthrough step towards improving and optimizing the services provided, offering promising opportunities to increase operational efficiency, quality of service and inno- vation in decision-making. Through the use of AI, public administration has the opportunity to transform interactions with citizens, improve the flow of information and increase the overall level of efficiency and social satisfaction. At the same time, the implementation of these technologies requires a care- ful balance between technological innovation and legal and ethical risks, especially in the context of protecting personal data and ensuring account- ability and transparency of AI-supported decisions and provision of effective remedies.Therefore the benefits of AI should be assessed together with the risks and threats, as well as with the provision of proper means of control and supervision, and adequate legal remedies. In the case of public administration, the constitutional principle requires it to act only based on the law and within the limits of the law (e.g. responsibility of the official for the issued administrative decision, prohibited use of ADM). However, the changes to the laws are often lagging behind the technical de- velopments and practice of action. Therefore, the use of AI, especially in the imperious sphere of activity, should be transparent, limited to specifically per- mitted situations and with accompanying legal remedies. Indeed, the implementation of artificial intelligence in public administration has enormous potential, but at the same time it brings with it a number of challenges. AI can significantly improve the efficiency and quality of public services, but requires appropriate regulations, such as the AI Act, to ensure its safe and responsible use. It is crucial that public, government and local administration implement AI in a transparent manner, respecting the rights of citizens and ensuring high standards of data protection, as well as providing effective legal remedies in case of any mistakes. In the context of further development and implementation of AI in public administration, a multidisciplinary approach will be crucial, combining knowl- edge from the fields of law, technology, ethics and social sciences. 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Central European Public Administration Review, 22(2), pp. 129–145 DOI: 10.17573/cepar.2024.2.06 1.01 Original scientific article Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law Michael Gøtze University of Copenhagen, Faculty of Law, Denmark michael.gotze@jur.ku.dk https://orcid.org/0000-0002-6983-8106 Received: 7. 10. 2024 Revised: 2. 11. 2024 Accepted: 6. 11. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: Holding pole position in the digital race, Denmark is an EU mem- ber state that not only has inherent incentives for self-scrutiny to avoid digital hybris but also serves as an inspiration for other countries aiming to move into the fast lane of digital designs. In the wake of strong digiti- zation within Danish public administration, a fundamental legal question arises: does digitization change the core content of general administra- tive law? Against this backdrop, the purpose of this article is to examine the existing Danish doctrine of technology neutral law, which asserts that digitization does not interfere with substantive law and does not nega- tively affect citizens’ rights. Approach: The article establishes a discussion based on relevant sources of law such as the Danish political agreement on digitally ready legisla- tion, examples of sectoral legislation (parts of Danish tax law), and the practices and recommendations of the influential Danish Parliamentary Ombudsman. Findings: The article’s conceptual finding is that the doctrine of technol- ogy neutral law is not fully justified. In 2024, Danish legislation is increas- ingly designed to be digitally compatible from the very beginning, which is a significant shift. This new legislative concept has been named digitally ready legislation (digital by design), denoting legislation that is ready and “pre-cooked” in its phrasing and concepts to be transformed into subse- quent digital solutions. Another finding of the article is that the proactive digital focus of the new regulation (acts and general administrative regu- lation) may come at a cost, potentially reducing the flexibility and adap- tive quality of regulatory templates that are crucial to the rule of law. Practical Implications: The article aims at identifying the practical – and possibly negative – implications inherent in digitally ready legislation. To this end, it explores various rule-of-law and legal certainty scenarios. A key challenge is to strike a fair balance between regulation with an open- Central European Public Administration Review, Vol. 22, No. 2/2024130 Michael Gøtze ended and discretionary design and close-ended rule-based frameworks relying on objective criteria. While pushing the agenda of digitally ready legislation brings clear benefits for administrative efficiency and pro- motes equal treatment across sectors, and although Denmark consistent- ly ranks in the top end of the digital class in Europe, the ongoing digital reform also presents certain issues. Arguably, the reform may represent a drawback towards a more simplified legal geometry that does not fully accommodate the diversity of citizens and enterprises subject to Danish law. As the notion of technology neutral administrative law is gradually eroding, this article calls for a more reality-based discussion about the level of citizens’ rights vis-à-vis public authorities. Administrative law it- self may need to be re-designed and made more rule-of-law ready. Value: The article offers a reflective, rule-of-law-based commentary on the ongoing strong political push for digitally ready Danish legislation. Keywords: digitally ready legislation, legal certainty, ombudsman, rule of law, technology neutral law JEL: K40 1 Introduction Administrative law is a law discipline with a long tradition in Danish public law1 and the fundamental principles and core concepts of administrative law - such a legal certainty (“Rechtssicherheit”, “sécurité juridique”), good admin- istration and procedural and substantial safeguards of the citizen vis-à-vis public authorities - are pivotal and well-established parts of he perception of contemporary Danish law. In Danish law the procedural requirements of ad- ministrative law e.g. the right to a hearing, the duty to give reasons, the duty to provide guidance to the citizen, the duty to investigate cases thoroughly and the citizen’s access to administrative review are to a wide extent codified in the Danish General Administrative Procedures Act (“Forvaltningsloven”)2 whereas the substantial requirements e.g. legality, objectivity, equality, pro- portionality are unwritten legal principles.3 In Denmark, the general principles of Administrative Law and the General Administrative Procedures Act are up- held by the court and by an influential Parliamentary National Ombudsman (Folketingets Ombudsmand).4 However, the ongoing digital push with the usage of a broad variety of digital solutions within public administration and rapidly developing digitization efforts in society as such are strong drivers – and from an economic perspective drivers in their own right with efficiency 1 A classical theoretical work of Danish administrative Law is the dissertation by the Danish author Poul Andersen who in 1924 published the book “Invalid administrative decisions” (“Om ugyldige forvaltningsakter”). Another milestone is the establishment of the Danish Parliamen- tary Ombudsman in 1954 according to Article 55 of the 1953 Danish Constitution (“Danmarks Riges Grundlov”). 2 “Forvaltningsloven af 19 december 1985”. The Act is analysed in detail, e.g., in Fenger, 2018, and in a shorter version in Tamm and Melchior, 2002. 3 See for an overall analysis Nielsen and Olsen, 2022. 4 See for an introduction in English to the Danish Parliamentary Ombudsman www.ombuds- manden.dk Central European Public Administration Review, Vol. 22, No. 2/2024 131 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law benefits – but the downside is that they challenge legal concepts and fun- damental ideas of legal certainty. Normally digitization has a strong positive connotation but when digitization is weighed on the legal scales, the result may be less positive. If we turn to the discourse relating to digitization within administrative law a pivotal and consistent emphasis can be found namely the emphasis on technology neutral administrative law implying that the core contents of ad- ministrative law remains the same and remains unchanged by new formats and in particular by new technology. The ideas of neutrality and stability have been put forward by e.g. the Danish Ombudsman Institution who ar- gues that the rights of the citizens must be as strong in a digital context as in a document based and analogue administration.5 The argument is logical in the sense that an explicit idea of a legal discipline ins different track – e.g. a digital track and an analogue track – would not be acceptable. In the light of this, the rationale that digitization might cause the wheel to spin faster so to speak but the hub of the wheel – which is the technology neutral ad- ministrative law – is not affected and remains in its place even in a high- speed phase. In the following analysis, my claim is – conversely - that this is a questionable thinking and that from an analytical perspective we are in a middle-position with a view to the fact that the strong and ongoing digital push actually have consequences for the level of legal certainty and the core contents of other administrative law principles. The technology neutral law idea is a process of de-conceptualization. The evidence in the following for this is twofold. (1) A strong current focus in Danish politics and Danish law is how to optimize the opportunities and potentials that the digitization of the public sector ar- guably entail. A concrete manifestation of this is found in the Parliamentary agreement from 2018 on digitally ready legislation between the Danish Gov- ernment and political parties in the Danish Parliament.6 The agreement re- lates to legislative culture and the agreement has a very strong impact of the content of administrative legislation from the very beginning. Danish legisla- tion is born with a digitally compatibility. You might say that the administra- tive law principles that apply at the administrative level are unchanged within their scope of application but the regulation as such is changing in Denmark at the overall level. This complex evolution supports to my mind the claim that we are witnessing a gradual de-conceptualization of the technology neu- tral administrative law and consequently a gradual change in the catalogue of rights of the citizen. The legal landscape within which administrative law applies is from 2018 onwards in a rather subtle way reformed and digitized from the onset. (2) Within a number of legal areas the administrative law pro- tection within the regulation itself is changing. The most important example in Danish Law is recent tax law regulation that reduces basic legal rights of 5 See e.g. findings of the Danish Ombudsman as summed up by Lisberg, 2015-16. 6 Danish Parliamentary agreement on digitally ready legislation, Politisk aftale om digitalise- ringsklar lovgivning, 16 January 2018. https://www.regeringen.dk/media/4690/digitalise- ringsklar-lovgivning.pdf Central European Public Administration Review, Vol. 22, No. 2/2024132 Michael Gøtze the citizen such as the right to administrative recourse. The evolution mirrors strong digitization effort within the tax area and the evolution is even more far reaching than the digitally ready legislation in the sense the legislation as such erodes administrative law concepts. 2 Methods The analysis in following revolves around an outline of the Danish agreement of digitally ready legislation and the efforts to implement it at the legislative level (section 3.1-3.3) combined with a subsequent outline of concrete case on public property assessments within Danish tax law (section 3.4). In the discussion part of the article (section 4) I deal with the question of how to strike a fair balance at the legislative level between discretionary and ob- jective regulation. As already mentioned, I also question at the conceptual level whether the general assumption that law is a technology neutral phe- nomenon can be upheld if digitally ready legislation ends up creating a gener- al regulatory culture based on algorithms. The claim that legal principles and rules do not change materially by switching from analogue to digital format is discussed. In my opinion it can be emphasized with equal justification that the consequence of the new concept of digitally ready legislation combined with new legislation that from the onset reduce administrative law protection of the citizen may be that technology does have a normative impact in the design of regulation and the choice of structure of rules. The analysis draws upon sources of law such as the political agreement of digitally ready legislation itself, examples of sectoral legislation – such as tax law - and the practice and recommendation of the Danish Parliamentary Om- budsman. As to the political agreement it is not easily categorized into the classical normative system of sources of law and the agreement might per- haps be considered as a form of political settlement between a number of political parties, the agreement is made public but it is not been subject to the hearing procedure that apply to enactment of legislation and of general administrative regulation. This might reduce the legal character of the agree- ment that is nevertheless in practice a very significant part of the framework of the ongoing drafting of legislation. Due to the fact that the agreement is made between political parties it is not subject to review by e.g. the Ombuds- man whose competence is administrative matters, not political matters. In a political system such as the Danish system an agreement between parties is a strong framework and such agreements are closely respected by the involved political parties. Although they are not legal and legally binding, they are in practice politically binding. With regard to the chosen model of analysis in the article, it can be mentioned that my aim is to examine the possibilities and dilemmas of digitization at a legislative level and thus from a mixed constitutional and administrative law perspective. In addition, it should be stressed that many important issues in relation to the digitization at governmental and citizen level can be raised but Central European Public Administration Review, Vol. 22, No. 2/2024 133 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law not all such issues are addressed within this work due to spatial reasons. In this article my focus is a legislative focus rather than an administrative focus. However, my general approach is that the legislative templates define the scope of administrative law protection and you might see the analytical ap- proach of the article as an overall public law – and rule of law – approach. In more specific terms, the analysis of the following is inspired by an investi- gative tools that the Parliamentary Ombudsman has at his disposal, id est an examination on his own initiative. Article 17 (2) of the Danish Ombudsman Act empowers the ombudsman to launch a general investigation of a public authority’s case handling and I proceed in the following with an exploratory draft of an evaluation of the interplay between concepts such as digitally ready legislation and technology neutral administrative law. 3 Results Denmark is top ranked when it comes to digitization from a macro perspec- tive. This is convincingly illustrated by a number of official rankings related to digitization at the Danish state level. In the 2023 OECD Digital Government Index Denmark is top of the class.7 Coming in second after South Korea, Den- mark tops the list of countries with the most digital government and public sector according to the index, published at the end of January 2024, Denmark has moved two places from fourth to second place since the latest OECD re- port was published in 2019. The Index ranks countries according to 6 different dimensions within digitization of the public sector. Among others, OECD has looked at how well Denmark utilizes data and technology to deliver a holis- tic and user-centric digital transformation of the public sector. And Denmark ranks in the top 10 within all 6 criteria. The 6 dimensions evaluated are: 1) digital by design, 2) data-driven public sector, 3) Government as a platform, 4) open by default, 5) user-driven and 6) pro-activeness. In addition, in the 2024 UN E-Government Survey Denmark is in pole position.8 The United Nations E-Government Survey assesses countries on the scope and quality of their online services, as well as their telecommunication infrastructure and human capacity. Denmark is at the very top and other countries in the top ten out of the UN’s 193 member states are Estonia, Singapore, the Republic of Korea, Iceland, Saudi Arabia, the United Kingdom, Australia, Finland and the Neth- erlands. Denmark has consistently led the ranking, which is published every other year, since 2018. In an evolutionary context it might be noted that Den- mark has a lower digital development rate than the average for the EU. It is obviously more difficult for digitally well-developed countries to maintain a high development curve than less digitally developed countries. 7 https://www.oecd-ilibrary.org/governance/2023-oecd-digital-government-index_1a89e- d5e-en 8 UN E Government Survey 2024 Central European Public Administration Review, Vol. 22, No. 2/2024134 Michael Gøtze 3.1 Danish Digital Design – Legislation “Born” with a Digital Potential The parliamentary agreement on digitally ready legislation is a new milestone in Danish legislation taking a proactive approach to subsequent digital solu- tions in the public sector.9 According to the agreement, legislation must pave the way for use of digital solutions in the Danish administration. With the in- troduction of digitally ready legislation, the abstract debate on digitization in Denmark – and many other European countries - is transformed making digitization much more concrete during the pre-legislation phase in the Par- liament. Therefore, further elucidation and discussion of the implications of the agreement is called for although such debate is surprisingly absent so far. The lack of debate and self-scrutiny might be the result of the consistent “success” of Denmark as the top-of-the-class and a strong political belief that Denmark is moving in the right direction as to digitization. It is quite clear that the political parties in Denmark – from all ends of the political spectrum – so far to a very wide extent give priority to digital options. The agreement on digital-ready legislation is based on the fundamental view that a proactive and agile approach is needed if digital solutions must func- tion as intended in relation to both efficiency and the rule of law within the public sector. The underlying idea is that digital perspective is not only a prac- tical, administrative and a matter of IT, but also a regulatory matter.10 The sooner digital solutions are envisaged and considered, the better the pos- sibility and potential of well-functioning digital solutions in the subsequent stages. Therefore, the agreement stipulates that the Parliament addresses the digital potentials in the administrative implementation of the law, and that the digital perspective is put on the agenda even when the political par- ties consider new regulation. This means – in an ideal (digital) world – that even political compromises and political “deals” at a very early stage should be conceptualized and drafted in a simple, objectively phrased and digitally practical way making the political “deal” ready for and suitable for subsequent digital solutions. Another, and substantively important part of political agreement is that the legislature should generally take a critical look at discretionary regulation. Digital solutions typically advocate the avoidance of discretionary and dynam- ic elements. According to the Danish Ministry of Justice’s updated guidelines on the quality of law, new legislation should be designed in order to facilitate “a full or partial digital administration and application of new technology that 9 See a brief introduction by the responsible Agency, the Danish Agency for Digital Government (“Digitaliseringsstyrelsen”) https://en.digst.dk/policy-and-strategy/digital-ready-legislation/ For literature on digital administration and the agreement see e.g. Fenger, 2019; Gøtze, 2018, pp. 182–190; Pedersen, 2017, pp. 25–30; Plesner and Justesen, 2018, pp. 9–20; Vonger, 2017, pp. 7–16. 10 The focus on the usage of algorithms is growing at the European level and several are launched with a rule of law perspective, see e.g. ELI model rules on impact assessment of algorithmic decision-making used by public administration Central European Public Administration Review, Vol. 22, No. 2/2024 135 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law support a better and far more efficient task solution’.11 This part of the guide- lines is broadly phrased and does not refer to the use – or to the avoidance of the use – of discretionary provisions but the reference is implicit. In my opinion, the overall aspiration of the agreement to be more digitally agile is as such convincing, especially looking at a series of recent “problem cases” in Denmark. However, it is also quite ambitious in many aspects. The ambition is a complete change of mindset in many ways: from digitization being an issue that has been typically been a secondary consideration in the work of politicians and government officials in preparing legislation and ad- ministrative regulations (if it has been considered at all) to now becoming a mandatory and initial consideration during the phase of drafting new regula- tion. This legislative culture in Denmark is thus in a fundamental transition phase. In a Danish context, the absence of academic literature with a focus on this transition and the absence of critical reflections have – so far – been quite remarkable. One might argue (as a Danish author myself), that the Danish tendency to consensus culture and to pragmatic approaches have prevailed over analysis and discussion. Although the agreement on digitally ready legislation is not based on an ex- pert report or on published systematic analysis or empirical research, when reading the agreement, you get the impression that the agreement has a double purpose. It is written in clear wording that political parties with the agreement want to embrace the many opportunities offered by the digital community. If we look at the agreement from a single-case perspective, the agreement can also im- plicitly be read as an initiative that wants to distance itself from a number of “problem-cases” and “scandals” concerning the use of digital solutions within the Danish public sector. An example which is often referred to is the chal- lenges of a digital tax law system, the EFI-system12. The mere cost of recovery steps to dismantle the default system made by the automated recovery tax system is estimated to amount to 200 million Euro (1,5 billion DKK). 13 In that regard, it is stated, - somewhat understated - in the political agreement on digitally ready legislation that there are “several examples of public IT pro- jects being considerably more expensive and delayed” because the legislation is framed without the necessary consideration for the subsequent digital im- plementation. The well-known ‘problem-cases’ - despite illustrating the chal- lenges rather than benefits of digitalization of the public sector – thus seem to have added momentum to the concept of digitally ready legislation. 11 Cp. Guidelines on drafting new legislation by the Danish Ministry of Justice, December 2017, afsnit 4.2., side 172. The guidelines can be found at www.lovprocesguide.dk. 12 EFI is a common IT system to recover tax debts. See more Kammeradvokaten, Rapport om legalitetsanalyse af EFI delsystemfunktionaliteter, Lønindeholdelse, Tvungne Betalingsord- ninger, og Betalingsevneberegning Budget, September 2015. 13 The Danish ”EFI-scandal” is briefly described by the Danish ombudsman in a report from 2014 (FO 2014-24: Overholdelse af forvaltningsretlige krav i forbindelse med udviklingen af SKATs IT-system, EFI). The report can be found at www.ombudsmanden.dk. Central European Public Administration Review, Vol. 22, No. 2/2024136 Michael Gøtze 3.2 The Broad Embrace by the Aspiration of Digitally Ready Legislation The agreement on digitally ready legislation has a wide scope, and it targets not only new legislation (new bills) but also administrative regulations and political agreements. Firstly, the agreement has effect vis-à-vis new laws (new bills) that are enacted after July 1, 2018, i.e. bills that are put forward dur- ing the Danish parliamentary year 2018/2019 (October 2018 until October 2019). Secondly, the agreement has effect vis-à-vis administrative regulations (“bekendtgørelse”),14 that are issued from July 1, 2018 onwards. Thirdly, the agreement envisages an assessment of the consequences of digital imple- mentation with regard to political negotiations and agreements following July 1, 2019. Fourthly and fifthly, the agreement stipulates, in the context of revision and amendment of existing laws and the revision of existing ad- ministrative regulation, that a pro-active digital perspective must be included. When it comes to significant changes to current legislation it should be con- sidered in accordance with the agreement, whether a more fundamental revi- sion of the legislation is needed to make it fully digitally ready. Against this backdrop, the political agreement on digitally ready legislation is more far-reaching than its name – comprising also e.g. administrative regula- tions that play a very important role in Danish law – and the digital reform will have an impact on the entire body of law, or a significant part of it in the years to come. It could be added that a revision clause has been included in the agreement, and the political parties in the Danish Parliament will in 2020 assess whether the legislation passed by the Parliament as a whole is suffi- ciently digitally ready and discuss further initiatives to support and enhance digitally ready legislation in the broad sense. Generally speaking, drafting digital ready legislation will be a resource inten- sive activity, and the much praised overall efficiency benefits may in practice be somewhat modified. It may also be noted, that no indication seems to have been made of how much of the mentioned regulatory body consists of dis- cretionary provisions. The agreement’s emphasis on simplification of discre- tionary laws and regulations seems to assume that it is a large number. The agreement is supplemented by general guidelines (“vejledning”) issued by the Danish Agency for Digital Government (“Digitaliseringsstyrelsen”), stating new legislative principles and various methods for impact assessment. The guidelines have public law legislation and regulation as their main focus.15 In respect of commercial law, a political agreement has been concluded be- tween a number of political parties with a view to digitally ready legislation that is important for business. Thus, legislation and regulation is currently – regardless of being a subject matter within public or private law - also subject to general principles digitally ready legislation. 14 A ”bekendtgørelse” is an administrative regulation which is binding. It is not a product of a parliamentary process but it is issued with a legal basis in a bill. The regulation is drafted by the administration. The English term is supposedly “executive order”. 15 Cp. Justitsministeriets vejledning om lovkvalitet, op. cit., pkt. 4.2. (Digitaliseringsklar lov- givning). Central European Public Administration Review, Vol. 22, No. 2/2024 137 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law 3.3 The Seven Principles of Digitally Ready Legislation According to the guidelines by the Danish Agency for Digital Government legislation can formally be characterized as digitally ready if it meets – or at least receives sufficiently positive assessment of - a list of seven principles. The approach to digitally ready legislation is highly technocratic, and as far as the Agency doe Digital Government is concerned, it is primarily as a matter of “good legislative technique” rather than a matter of democracy and good administration. The seven principles will in future become part of a manda- tory approach, in which the relevant ministry will assess a bill’s implementa- tion consequences. These consequences should always be addressed and de- scribed in the general preparatory comments of the bill (preparatory works). The seven principles are the following: 1) Simple and clear regulations (Leg- islation should be simple and clear, so it is easy to understand for citizens and businesses. Simple and clear regulations are easy to manage and con- tribute to a more consistent administration and digital support), 2) Digital communication (The legislation must support digital communication with citizens and businesses. For those citizens and businesses that do not use digital solutions, other solutions must continue to be an option), 3) Auto- matic processing (The legislation must support that the administration of the legislation can be done in whole or in part digitally with due regard to le- gal security of citizens and businesses. This means among other things, that the legislation is basically designed so that the objective criteria are used when it is considered relevant and when there is no need for a discretionary professional judgment), 4) Coherence – uniform concepts and data reuse. (Data and concepts should, as far as possible, be reused across authorities), 5) Safe and secure data management (High levels of digitalization require high priority on data security. Therefore, in legislative work, the focus should be on whether new legislation gives rise to special points of attention in rela- tion to safe and secure handling of citizens’ and companies’ data). 6) Public infrastructure (Legislation must take into account that it is possible to use existing public infrastructure such as NemID, BankID, digital mail and other e-IDs) and 7) In the drafting of legislation, the possibility of a monitoring and preventing abuse and errors should be taken into account. Legislation must allow efficient IT use for control purposes.16 If we take an initial analytical look at the seven principles, it can be said that they are based on the following presupposed and simplified transformation - or ‘before and after’-dichotomies: (1) from unclear regulation to clear regu- lation, 2) from analogue/manual communication to digital communication, 3) from discretionary/open-end regulation to objective/close-end regulation. 4) from sectoral concepts to intersectional/coherent concepts, 5) from less secure/uncertain data management to secure data management, 6) from de- 16 The principles are quoted as stated in the guidelines of the Danish Minsitry of Justice (”Jus- titsministeriets lovkvalitetsvejledning”). Section 7.14. https://lovkvalitet.dk/lovkvalitetsvejled- ningen/7-saerlige-bestemmelser-og-emne/7-14-digitaliseringsklar-lovgivning/ A somewhat more comprehensive explanation of the principles can be found in the guidelines of the Dan- ish Agency for Digital Government (“Digitaliseringsstyrelsens vejledning”). https://digst.dk/ media/20161/vejledning-digitaliseringsklar-lovgivning-juli-2018_publikation.pdf Central European Public Administration Review, Vol. 22, No. 2/2024138 Michael Gøtze centralized infrastructure to public infrastructure and 7) from less efficient/ ineffective control to effective control. In time, quite significant develop- ments are thus expected. In addition, the Danish Agency for Digitalization’s guidelines contains methods for assessing the consequences of implementation and recommendations on digital-ready legislation. This includes a description of the requirement that the ministries from 2018 onwards should submit legislative proposals with implementation consequences in consultation with the Agency for Digitaliza- tion, as far as six weeks before the parliamentary process and the introduc- tion of the bill within the Parliament. The mandatory consultation with the Agency for Digitalization applies only to legislative proposals, not administra- tive regulations such as notices. Looking at the organizational set-up of enhancing digitally ready legislation it is striking that the Agency for Digital Goverment under the Ministry of Fi- nance in the field of public law has been assigned the task of providing legal technical assistance to the different ministries. The Agency for Digital Gov- ernment has to undertake screening of draft legislation and to assist the min- istries with guidance on the new impact assessment and support the work on digital-ready legislation. In this way, the task of guiding is split between the Danish Ministry of Justice, as an expert in the classical legal field as to drafting new legislation, and the Agency for Digital Government, as an ex- pert in the digital field. There is some coordination of the dual efforts, but the Ministry of Justice’s accumulated competence is – to my mind – relatively reduced within the new set-up which in itself represents a shift of approach to fundamental rule of law concepts. 3.4 Reduction of Administrative Law Protection as Part of Current Public Property Assessment System Having so far dealt with legislative design horizontally we now turn to a more tangible and sectoral change in legislative templates. We will examine the so-called public property assessment case. Tax law is a legal discipline that in Denmark is highly regulated in acts and general administrative regulations etc. Within this field the Danish Parliament has gone quite far in regulating and shaping the rights of citizens not only as to substantial tax law right but also as to administrative law rights. In the regulation forming the basis of the current public property assessment system we encounter quite far reaching cutbacks as to core administrative rights. The basic features of the Danish property assessment system is that owners of real states pay a property tax (both a state tax and a municipality tax). The taw is a percentage of the – estimated - value of the real estate. The value is based upon an assessment of the value of the real estate with a view to quality, location, size, and other relevant factors. The property assessment is a public task and it is – since 2018 - carried out by the Property Assessment Agency (“Vurderingsstyrelsen”) by means of a digital system. The system is Central European Public Administration Review, Vol. 22, No. 2/2024 139 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law very comprehensive in a country like Denmark with a massive number of real estate owners and with an extensive taxation. The property assessment sys- tem is controversial in the sense that taxation is an issue of political interest in Denmark as a result of a high interest within the population. A number of political parties resist the relatively high level of taxation in the Danish wel- fare state. Although you might think that taxation of real estate and public property assessment is a rather technical and bureaucratic matter, it is actu- ally to a wide extent a political battleground. The vast majority of political parties decided in 2019 that the public assess- ment of real estate and property should be redesigned. As part of the new model all owners of real estates would receive preliminary assessment of the value of their property. In Denmark real estate owners pay property value on their property and the preliminary public property assessment have econom- ic consequences. Prior to the political consensus in 2019 the system of public property assessment had been suspended since 2013 due to serious systemic problems. A significant feature of the new system – launched in 2023 - is the use of digital models. The digital system is designed to produce preliminary assessments (in 2024) and the final assessments will follow (in 2025). Real es- tate owners have the right to complain as to the final decision. However, the two-step system is – from a legal point of view – quite a drawback although it has administrative advantages. Legally it is a significant disadvantage of the system that the citizen’s right to submit a complaint if the assessment is incorrect or based on incorrect stem data is postponed and abolished to be- gin with. The legislative framework does not allow for administrative review of preliminary decision although these preliminary assessments might have economic effects in the form of a higher – or lower - tax rate than justified. It is not clear if the real estate owner will be fully compensated if the real es- tate owner submit a complaint as to the final decision and if the real owner’s compliant is accepted. The property assessment system is administered by the Property Assessment Agency (“Vurderingsstyrelsen”)17 ensuring uniform and transparent valuation for Denmark’s approx. 2,3 million property own- ers. The agency is empowered to reopen property assessment cases on its own initative. This is in the eyes of the designers of the system thus consid- ered a sufficient protection of the citizens in spite of the fact that reopening could be rather arbitrary. In September 2023 the Property Assessment Agency launched the new digi- tally generated preliminary assessments but the response has been criticism rather than applause. In a vast number of cases the Agency’s assessments have been overtly incorrect. This has raised a high-pitched tax debate in Den- mark – often describing the property assessment case as a mere scandal case - and the political attempt to launch the public property assessment as a step forward to the benefit of the citizens and tax payers have – so far – failed in the mind of mane citizens. 17 General information in English is provided by The Danish Property Assessment Agency. Central European Public Administration Review, Vol. 22, No. 2/2024140 Michael Gøtze The system has recently been partly reviewed by the Parliamentary Ombuds- man and the Ombudsman voices criticism in a rather cautious manner of the quality work and data checks prior to the launch of the preliminary assess- ments. The criticism is rather cautious.18 It can be added that the right to ad- ministrative review can by its mere existence enhance public authorities to make use of thorough investigations and thus enhance quality from the start. The reduction of the administrative law right to submit complaints at the leg- islative level can be seen as an undermining of the doctrine of technology neutral administrative law. The core contents of administrative law are in a very concrete way affected by the new automatized system. 4 Discussion We now move on to one of the inherent challenges that face the concept of digitally ready legislation which is the basic reservation towards discretionary regulation. When legislation is to be translated into algorithms and system- ic programmes generating a high degree of automatized decision-making, open-ended and discretionary rules are to be avoided. They cannot be trans- formed into binary language. They are not compatible. Although discretion is a feature of law that can play the role of “l’enfant terrible” among lawyers, discretion is nonetheless often a useful and relevant way of regulating a sub- ject matter. Discretion entails a high degree of flexibility and case-to-case readiness. The ideal is that discretion leads to a high degree of substantial legal certainty. However, when we turn to the concept of digitally ready legis- lation, the existence of discretionary and framework-based regulation is to a large degree seen as a negative and counterproductive choice. A strong aspiration of the political agreement is to encourage the legislature and the responsible parts of civil service preparing new legislation to consid- er and preferably to minimize the use of discretionary rules. As mentioned above, the Danish Agency for Digitalization has established a legislative rule of priority in favour of objective, simple and close-ended rules and in favour of regularity because of the possible benefits that such regulation gives in rela- tion to subsequent digital solutions. It is embedded into the digital paradigm that the ambition of the legislature is to break down legislation in binary logic and unambiguous categories. Conversely, the legislature should reserve the use of more discretionary, dy- namic and contextual rules in as few areas as possible. However, the desire to reduce discretionary is not without exceptions. The agreement opens up the possibility that there may still be reason to legislate by means of flexible regulatory frameworks e.g. in certain welfare law areas such as coercive re- moval of children from the parents and other highly contextual administra- tive decisions. However, the examples of green light open-ended regulatory areas are few. The rationale behind the preference for binary legislation is that such regulation may allow professionals to spend more time on more 18 Ombudsman Report published 3 May 2024 (FOB 2024-10). The report can be found at www. ombudsmanden.dk. Central European Public Administration Review, Vol. 22, No. 2/2024 141 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law complex cases, where an individual decision and individual assessment is needed, e.g. in cases concerning the child’s well-being and welfare support for particularly vulnerable citizens. The approach in the agreement on digitally ready legislation is to downplay the increase in the use of close-end regulation in Danish legislation. This ap- plies primarily to a digital scenario where the task of making decisions towards citizens is coded into computerized decision-making systems. Looking into the crystal ball we may envisage that digitally ready legislation will create a le- gal landscape characterized by “squareization” and simplified legal geometry. In my opinion, this may involve a loss of eye level with the citizen and a smaller space for individual considerations compared to a multi-faceted and increas- ingly individualized reality. There is a risk of a strong pushback from the nation of technology neutral administrative law or in more concrete terms there is a risk that future administrative decisions being made on the basis of digital administration will be less suited to embracing the diversity of citizens. The emphasis in the political agreement on efficiency and equal treatment ben- efits is only to a certain extent justifiable and the downside is, of course, that digitally ready legislation in extenso can put pressure on regulatory instru- ments that involve human discretion. Although there is some awareness in the political agreement about maintain- ing discretion, the agreement is not specific on this point. In addition, as al- ready mentioned, there will be no explicit comment in the preparatory works of new legislation as to whether the Parliament has opted out of the use of a discretionary rule model. The choice of close-end regulation is thus presented as the only choice when new legislation is designed. It is my assessment that too few and too single dimension examples have been included in the agree- ment on digitally ready legislation. Confidence in legislation as such may be weakened if new legislation is largely designed in templates where important decisions are not based on individualized and well-considered judgements, but on algorithms that in a largely inexplicable way calculate a result.19 An interesting aspect concerns legislation with an EU Law background which is a large part of current Danish regulation. It cannot be taken for granted that EU Law shares the ambition of the Danish political parties of digitally ready legislation within EU law related areas. When implementing EU directives and EU regulation, the Danish Parliament does not enjoy the same freedom as to the choice of regulative models as regarding Danish legislative initiatives. There might be European discretionary provisions that cannot be subject to the national Danish ambition to create digitally ready legislation. The Euro- pean perspective is a significant blind spot in the agreement on digitally ready legislation and it has not been thoroughly examined.20 19 The problem of reduced confidence has been put forward by inter alia The Danish Lawyers Association (Advokatsamfundet), Retssikkerhedsanalyse 2023. 20 This interesting aspect is – rapidly - touched upon in Næser, J. Paper on digitally ready legisla- tion presented at Oslo University (2023). https://www.jus.uio.no/ior/forskning/prosjekter/di- givel/arrangementer/johan-neser---digitaliseringsklarlovgivning---retssikkerhedsmessige-ud- fordringer.pdf. Central European Public Administration Review, Vol. 22, No. 2/2024142 Michael Gøtze Finally, new legislation that is not flexible can make it difficult in practice to gain experience in the regulation and then find the appropriate legal level of rights. If legislation is designed in rigid templates, there is no room for subsequent adjustments in practice. If new legislation proves to be inappro- priate or erroneous, it will also take time to change the legislative structure requiring new legislation to correct and replace the original template. Al- though the goal of increasing the regulatory outlook for digital solutions can hopefully be a constructive opportunity to focus more on the relationship between the state and the citizen, it may seem paradoxical that the introduc- tion of digitally ready legislation into Danish law is so far based on a highly technical discourse. 5 Conclusions Summing up, there are promising elements in the new concept of digitally ready and digitally friendly legislation. It can pave the way for efficient digital solutions and it is obvious that using digital solutions can generate benefits in many practical respects, such as self-service solutions, routine case manage- ment, digital 24/7 accessibility, more uniformity in the administration’s work and a shortening of case processing times etc. In addition, the quality of digital solutions and the knowledge among computer experts and digitally compe- tent lawyers will increase gradually. This progression is an important scenario. On the other hand, the ongoing development of Danish legislative culture also faces rule of law challenges. The positive assessments in proposals for new legislative acts as to digital potentials are manifestations that the Dan- ish legislature generally looks for alternatives to discretionary regulation. The quantitative presupposition is that the number of discretionary rules are reduced as a result of the fact that the vast majority of new legislation are based on a positive pro-active assessment of digital solution. In the 2022 an- nual report monitoring digitally ready legislation it is stated that a growing part of the recommendations to enact digitally ready legislation now actually are adhered to.21 The slow start of the initiative on digitally ready legislation is in recent years transformed into a high-speed project. A more fundamental objection to digitally ready legislation is that one of the worst-case scenarios is/would be that the legislative power becomes more concerned with digitali- zation than with the citizen. To avoid this scenario, a wider range of substantive benchmarks may be needed for the choice between discretionary and binary regulation than are sketched out in the political agreement of digitally ready legislation. A limi- tation of discretionary regulation may, in my opinion, appear to be substan- tially relevant and suitable in some areas but the primary reason for opting for a close-end and “square” regulatory template should not be the need of digitalization in as many administrative functions as possible. With a view to this, the ongoing transformation of Danish legislation into a digitally compat- 21 Annual report on the work with digitally ready legislation, 2022. See https://digst.dk/me- dia/28249/aarsrapport-2022-indsatsen-for-at-goere-lovgivningen-digitaliseringsklar.pdf Central European Public Administration Review, Vol. 22, No. 2/2024 143 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law ible regulatory architecture can end up being both a step forward and a step backward. An even deeper impact as to erosion of the notion of the technol- ogy neutral administrative law is the examples of legislation that postpone or simply eliminate administrative rights at the legislative level as we have quite dramatically encountered within the public property assessment system, a significant mass administration area where the citizens must adjust to a some- what squeezed position. A consequence of such reduction of rights e.g. the right to administrative review is that it may reproduce itself in other sectors and it can ultimately open a Pandora’s box. A common rule of law perspective as to both digitally ready legislation and to deliberate legislative setbacks on fundamental administrative rights is weakened in the sense that there is no independent control mechanism that can act a counterbalancing force. The Parliamentary Ombudsman is out of play because the quality and “format” of legislation does not fall within the review competence of the ombudsman. A kind of review vacuum sets in and Danish digital design may thus prompt – in a gradual and quite subtle man- ner - erosion of the notion of technology neutral administrative law and an erosion of the rights of the citizens of the digital state. Central European Public Administration Review, Vol. 22, No. 2/2024144 Michael Gøtze References Danish Agency for Digital Government (Digitaliseringsstyrelsen), Guidelines on digitally ready legislation. At , accessed 11 July 2024. Danish agency for Digital Government (Digitaliseringsstyrelsen). (2022). Annual report on the work with digitally ready legislation, Årsrapport. Indsatsen fo at gøre lovgivning digitaliseringsklar. At , acessed 5 August 2024. Danish Governmental publication. (2017). Regeringens aftale med alle øvrige partier i Folketinget: Enkle regler, mindre bureaukrati – lovgivning i en digital virkelighed”, The Danish Ministry of Finance (Finansministeriet). At , accessed 13 July 2024. Danish Ministry of Justice. (2023). Guidelines on drafting new legislation, Justitsministeriets vejledning om lovkvalitet. At , accessed 1 August 2024. Danish Parliamentary agreement on digitally ready legislation. Politisk aftale om digitaliseringsklar lovgivning, 16 January 2018. At , accessed 10 August 2024. Danish Parliamentary ombudsman. Guide to general requirements to public digital systems. Myndighedsguiden. Generelle forvaltningsretlige krav til offentlige it-systemer. At , accessed 10 August 2024. Fenger, N. (2018). Forvaltningsret, Copenhagen: DJØF Publishing. Fenger, N. (2019). Hvordan digitaliserer vi uden at skade vores retssikkerhed, brief article published in the annual report of the Parliamentary Ombudsman. At , accessed 10 August 2024. Gøtze, M. (2018). Digital reform af dansk lovgivningskultur, Juristen, DJØF, pp. 182–190. Kammeradvokaten, Rapport om legalitetsanalyse af EFIdelsystemfunktionaliteter, Lønindeholdelse, Tvungne Betalingsordninger, og Betalingsevneberegning Budget, September 2015. Lisberg, J. Digitalisering og retssikkerhed, Folketinget, Retsudvalget, 2015-16, Almindelig del, bilag 53. Nielsen, Pe. and Olsen, J. (2022). Public Law. Insight into Danish Constitutional and Administrative Law, Copenhagen: Hans Reitzel Publishing. Næser, J. (2023). Paper on digitally ready legislation presented at Oslo University. At , accessed 13 September 2024. Pedersen, M. (2017). Digitaliseringsparat lovgivning: Ved vi, hvad vi taler om? Nordisk Administrativt Tidsskrift, 3, pp. 25–30. Central European Public Administration Review, Vol. 22, No. 2/2024 145 Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law Plesner, U. and Lise, J. (2018). Fra skøn til algoritme. Digitaliseringsklar lovgivning og automatisering af administrativ sagsbehandling. Tidsskrift for Arbejdsliv, pp. 9–20. Tamm, D. and Melchior, T. (2002). Danish Law in a European Perspective, 2nd edition, Copenhagen: KARNOV Publishing. The Danish Lawyers Association (Advokatsamfundet), Retsikkerhedsanalyse. Vonger, B. (2017). Grænserne for fuldt digitaliseret sagsbehandling, Juristen, DJØF, pp. 7–16. 147 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ Hrubešová, S. (2024). Shaping Administrative Activity (Legal Forms): A Legislative Approach. Central European Public Administration Review, 22(2), pp. 147–163 DOI: 10.17573/cepar.2024.2.07 1.01 Original scientific article Shaping Administrative Activity (Legal Forms): A Legislative Approach1 Sára Hrubešová Masaryk University, Faculty of Law, Czech Republic hrubesova@mail.muni.cz http://orcid.org/0009-0000-2821-5693 Received: 1. 10. 2024 Revised: 5. 11. 2024 Accepted: 8. 11. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: The topic of legal forms in public administration is strongly influ- enced by the principles of good administration. In the Czech legal order, the Parliament acts as the rule-maker of statutory foundations for public administration, making it crucial to focus on the legislative approach to enacting legal forms. This paper examines the weaknesses in legislation related to the enactment of legal forms of public administration, specifi- cally through the principles of legal certainty and predictability of law. Design/Methodology/Approach: The author analyses Czech legal norms, existing legal doctrine, and administrative court’s rulings in relation to the legislative enactment of legal forms of public administration. This analy- sis leads to categorisation of legislative techniques based on the clarity with which the legal form of public administration activity is enacted. The paper also includes a case study consisting of a qualitative analysis of the legislative process in a specific case, based on publicly available records of parliamentary debates during the legislative process. Findings: In the case under review, there was no proper discussion of the implications of removing the explicit designation of legal form during the legislative process. No case has been found in which the Constitu- tional Court, acting as a negative legislator, annulled a statute for failing to explicitly specify a legal form, either due to its removal or its absence from the outset. Academic contribution to the field: The article highlights that, for the public administration to function effectively as good administration, the rules governing its activities must be clearly defined. The findings encourage legislators to ensure that proper discussions regarding the legal form of administrative activity take place when enacting laws. Such expert debate during the legislative process is essential to ensuring the clarity of the laws under which public administration operates in a 1 The article is a result of the project Current Questions and Issues in the Field of Public Law Stud- ies (Aktuální otázky a problémy v oblasti veřejnoprávních studií), No. MUNI/A/1573/2023, sup- ported by the Ministry of Education, Youth and Sports of the Czech Republic in the year 2024. Central European Public Administration Review, Vol. 22, No. 2/2024148 Sára Hrubešová particular legal form. Circumventing the legislative process or failing to engage in proper debate disproportionately impacts legal certainty and the predictability of law. Originality/Value: This article presents arguments emphasising the ir- refutable role of the legislature in creating clear rules for the exercise of public administration and, as a direct result, enabling public adminis- tration to function as good administration. It points out the importance of clearly referencing the legal form of public administration in the law. The categorisation of legal form designation aids in identifying patterns and trends, helping to isolate relevant issues and focusing research on specific legal questions. Keywords: administrative procedural rules, Constitutional Court, good administrati- on, legislature, legislative process, legal forms of public administration JEL: K23 1 Introduction Administrative activities, defined as activity of public authorities directed to- wards individuals, encompass instances where authority is exercised through mechanisms of public law. To better understand the nature of these activities, it is helpful to categorise them into groups with similar features, referred to in this article as legal forms. Administrative activity formalised as legal forms are central tools of administrative activity and serve as the primary means by which public administration operates. Legal forms of administrative activity fall under substantive administrative law. However, each legal form carries with it essential (inherent) procedural requirements.2 These requirements determine how an administrative activity must be carried out to ensure that it is legally valid and fair. Consequently, the study of legal forms in public administration cannot be separated from the domain of administrative procedural rules, as these rules dictate the frame- work within which legal forms must be enacted. This interdependence reveals how the concept of substantive law (the actual administrative activities) is inextricably linked to procedural law (the processes governing how these ac- tivities are implemented). Thus, the issue of legal forms illustrates that substantive and procedural law are not isolated fields but are interconnected aspects of the legal framework governing public administration. While substantive law determines what public authorities can do, procedural law sets out how these activities must be performed to ensure legality, transparency, and accountability in admin- istrative processes. This connection also means that legal forms should be analysed through the principles of good administration. Procedural rules in 2 In context of Czech legal order there are legal forms for which the lack of a formalised proced- ure is significant. This includes factual operations, such as the intervention of police officers; although these activity lack formalised procedure, the basic principles of public administra- tion still apply to them. Central European Public Administration Review, Vol. 22, No. 2/2024 149 Shaping Administrative Activity (Legal Forms): A Legislative Approach administration can be shaped by administrative practice and are often influ- enced by decisions of administrative courts. Nonetheless, in the Czech legal context, the primary foundation of administrative activity rules remains statu- tory law enacted by Parliament.3 Public administration undertakes a wide variety of tasks, which are carried out in many different ways. These methods differ in their legal nature and significance. Legal theory categorises the most common methods of per- forming public administration (forms of administrative activity) based on the shared characteristics. These categories are also reflected in the legal system as statutory forms of public administration activity. Legal (statutory) forms of public administration activity predetermine all procedural aspects related to the execution of these activities, such as participation in the proceedings, the elements of an administrative act, potential review within public administra- tion, and the possibility of judicial review. Theoretically and legally established categories of public administration activ- ity—legal forms—are defined by both formal and material features. There- fore, in interpreting legal forms, we apply both formal and material concepts. These concepts examine the relationship between the format (form) and the substance (content) of administrative activity, serving as tools for identifying legal form. The formal concept emphasises that the form of an activity is de- fined by law or explicit legal authorisation, and the legal form can often be recognised by the wording of legal norm itself. Administrative courts using formal concept also assess the formal requirements of administrative acts; for instance, whether the administrative act in question includes the ele- ments specified in the Administrative Procedure Code for the legal form of a decision. Such elements may include the label “decision” or any other legally required designation, the name of the issuing administrative authority, a ref- erence number, the date of issuance, an official stamp, etc. In contrast, the material concept focuses on the substance of the provision regulating a specific administrative activity or the actual content of the ad- ministrative activity itself. For example, in the case of a decision (an individual administrative act), the material characteristics would include that this ad- ministrative act establishes, modifies, or cancels the rights or obligations of a specified individual in a particular matter. The formal and material concepts are essential for the application of law. The interpretation and application of legal norms cannot be separated from law- making. Therefore, this paper addresses law-making in the context of legal forms of administrative activity. Public administration may only be exercised in cases, within limits and in a manner provided by law. Legislation establishes the framework and rules for public administration activities that are bound by law. As a result, the paper examines the relationship between legislative methods and their impact on legal forms of administrative activity. 3 For arguments regarding the advantages and disadvantages of a particular administrative procedural rule maker, see Della Cananea and Parona, 2024, p. 14. Central European Public Administration Review, Vol. 22, No. 2/2024150 Sára Hrubešová It should not be overlooked that public administration itself holds the power to create legal regulations, whether at the level central state administration – decrees and regulations, or at the level of self-government – for example, generally binding municipal decrees or internal regulations. This article, how- ever, focuses on the statutory foundations of public administration activities, which are established by Parliament. Therefore, in examining legal forms, the subject of this research is not the norm-making activities of public adminis- tration which is considered only one among its many functions (one of legal forms) in this context.4 2 Legal Forms in Clouded Statutes From a broad perspective, the regulation of rules for administrative activity varies significantly across European countries. The scope and precision of the legislative frameworks governing these rules differ widely. This is equally true for legal forms – provisions on specific legal forms in procedural law range from minimal requirements, such adherence to general principles of good administration and the protection of individual rights to highly detailed regu- lation (Della Cananea and Parona, 2024, p. 19). Both approaches – whether a comprehensive procedural framework or a general reliance on good ad- ministrative principles – can be effective. The Czech legal system, with few exceptions, tends to offer relatively detailed procedural regulation of public administration. However the Czech legal system faces significant challenges, particularly in relation the fragmentation of procedural rules and inconsistencies in defini- tion of legal forms. Although the Czech Republic has a general Administra- tive Procedure Code (APC), different sectors of public administration are gov- erned by separate regulations; in other words APC or its individual provisions apply unless a special law provides otherwise. In many instances, these special statutes provide exceptions to or entirely exclude the use of general code. This fragmentation, while common in administrative law, creates confusion and complicates the application of legal norms. A further issue arises from the differing approaches taken by administrative courts and public administration to legal forms. The Code of Administrative Justice (CAJ) ensures that no public administrative activity which affects in- dividual rights is left without judicial protection. However, the courts follow definitions of legal forms that diverge from those used in public administra- tion’s procedural rules. Additionally, the inconsistency between theoretical and statutory forms of administrative activity makes this complexity more difficult. In practice, a con- textual understanding is often required to determine the appropriate legal form. The inconsistencies can create difficulties in ensuring that administra- 4 Nevertheless, public administration plays an active role in the legislative process. The vast ma- jority of draft laws are prepared by the Government of the Czech Republic, specifically by indi- vidual ministries (see Section 4 of the Czech law-making process and rules for drafting laws). Central European Public Administration Review, Vol. 22, No. 2/2024 151 Shaping Administrative Activity (Legal Forms): A Legislative Approach tive activities are conducted within the bounds of the law, potentially com- promising the protection of individual rights. It should be noted that even when a legal form is explicitly designated in the statute, interpretation may not always be straightforward. For instance, the term “decision” does not necessarily refer to a decision under Section 67 of the APC.5 Even the verb “decides” does not automatically indicate this legal form (Vedral, 2012, p. 1366). For example: – Decision: Defined by Sections 9 and 67 of the APC6 as the outcome of an administrative procedure stricto sensu, it differs from decision defined by Section 65 CAJ7 which represents a broader category. – Measure of general nature: Defined by Section 171 of the APC as a bin- ding administrative act that is neither a normative act (subordinate legisla- tion) nor a decision. Section 101a of the CAJ mirrors this, covering every measure of general nature through material concept. – Public contracts: Defined by Section 159 of the APC as bilateral or multi- lateral acts that create, modify or cancel rights and obligations in the field of public law. Disputes arising from public contracts are resolved by the su- perior administrative authority, and only authority’s decision on a dispute is subject to review in administrative justice (Section 65 of the CAJ). – Statements, Certificates, Communications, Consents, Opinions, etc.: There are other forms of administrative acts varying in name and proce- dural requirements depending on the special laws that govern them. The general rules are governed by Sections 154 et seq. of the APC and certain provisions on administrative procedure stricto sensu (leading to decision un- der Section 67) applies in like manner. Some do not affect individual rights (public subjective rights) and are therefore not subject to judicial review. However, where they do affect individual rights (public subjective rights), they may be challenged either by an action against a decision (Section 65 of the CAJ) or by an action for protection against unlawful interference (Section 82 of the CAJ); – Factual Operations of Public Administration: A group of various admini- strative operations not preceded by a formal process. Those that affect pu- blic subjective rights can be challenged by an action for protection against unlawful interference (Section 82 of the CAJ). – Subordinate Legislation: Act such as municipal decree, ministerial decree, government regulation are subordinate legislation and APC does not apply to this administration activities. The Constitutional Court is empowered to 5 For example Act No. 240/2000 Coll., on Crisis Management and on Amendments to Certain Acts. For more details Svoboda and Hejč, 2021, pp. 315–324. 6 Act No. 500/2004 Coll., Administrative Code. 7 Act No. 150/2002 Coll., Code of Administrative Justice. Central European Public Administration Review, Vol. 22, No. 2/2024152 Sára Hrubešová review their legality, while administrative courts have no jurisdiction to as- sess such acts. In this paper I categorise four groups of legislative methods for defining legal forms. Each group has a different relationship to the principles of the rule of law and a distinct impact on individual rights. These groups vary based on whether the legal form corresponds to the content of the administrative ac- tivity and how clearly the form is defined (articulated) in statute. The division into three groups is, in my view, important to see that the definition of legal form appears in varying degrees of (in)perfection. The groups are as follows: Group 1: The legal form of the administrative activity is explicitly (formally, by its term) determined (articulated) in the legislation and corresponds to the substantive features of the activity. Group 2: The legal form of the administrative activity is explicitly (formally, by its term) determined (articulated) in the legislation, but does not corresponds to the substantive characteristics of the administrative activity. This group also includes cases where public administration has the discretion to choose between several legally prescribed legal forms of administrative activity. This group can be further divided into cases where the legal form is granting (a) a higher standard of rights protection or (b) a lower standard of rights protec- tion. Group 3: The legal form of the administrative activity is not explicitly estab- lished (articulated) in legislation and can only be inferred by characteristics of the activity. For cases where the legal form is unclear, both the formal and material ap- proaches to legal forms, as explained above, are used. The material approach prevents a denial of justice by ensuring procedural (including judicial) protec- tion against acts of public administration that infringe individual rights (public subjective rights). However, applying the material approach is a complex legal issue, raising concerns about legal certainty and predictability. Legal predict- ability is essential for individuals to act in their own interest, as allows them to understand the law’s impact on the promotion or restriction of their rights. In terms of legal forms, then, a key requirement for legal certainty and pre- dictability, both core principles of good administration, is that the form of administrative activity should correspond to content of the activity (Hejč and Bahýľová, 2017, p. 57). 3 Good Legislature for Good Administration The principle of good administration shapes and controls administrative ac- tivity through a framework of procedural rights, which if violated, may be in- voked before a court. Good administration is recognised as a legal principle and, in many contexts, a right. Key elements of good administration include impartiality, fairness, timely conclusion of proceedings, legal certainty, pro- Central European Public Administration Review, Vol. 22, No. 2/2024 153 Shaping Administrative Activity (Legal Forms): A Legislative Approach portionality, non-discrimination, right to be heard, effectiveness, and effi- ciency. The concept is grounded in fundamental principles of the rule of law, including legality, equality, impartiality, proportionality, legal certainty, timely activity, participation, respect for privacy, and transparency. Good adminis- tration requires procedural mechanisms that are as integral as substantive outcomes themselves (Venice Commission – European Commission for De- mocracy through Law, 2011). Improving legislation often entails reducing the number of statutes (Karpen, 2017, p. 4). The proliferation of modern legislation can be attributed to the expanding responsibilities of public administration, which can only act as pre- scribed by law. Consequently, reducing the volume of laws governing public administration does not automatically result in better regulation. For a public administration to function as good administration, it must be empowered by the legislative framework that clearly defines the scope and limits of its au- thority. Striving for perfection in legislative drafting is, in my view, an unattainable ideal. Nevertheless, legislators in a democratic state governed by the rule of law should continuously aim to produce the best possible legislative. I agree with Filip’s view that “those who pass laws pursue entirely different goals than legislative excellence. Otherwise, they would not proceed as they do.” However, I am less sceptical than Filip regarding the conclusion that “efforts to change will always miss the mark in this regard.” (Filip, 2007, p. 206). I share Kokeš’s optimism about the potential for improvement (Kokeš, 2020, p. 165) as dem- onstrated by the recent advocacy in Czech doctrine for greater clarity in leg- islation. When drafting legal text, legislators must anticipate how their work will be interpreted and strive to ensure it aligns with their intended meaning. To maintain legal certainty, it is essential that a legislator can reasonably predict the interpretation of their text. Ideally, each provision should lend itself to a single, intended interpretation based on the (linguistic) norm. The idea is that legal norm should be clear from the text itself, however, legal norms will al- ways be subject to other methods of interpretation. As discussed earlier, it is crucial for legal predictability and certainty that the legal form of administra- tive activity corresponds with its material content. In defining administrative activity techniques such a precise definitions and clear cross-referencing are essential. Legal forms often involve definitions that apply across multiple pieces of legislation, and references frequently bridge different legislative texts. Definitions enforce how a term must be understood and used linking them closely to principles of rule of law, legal certainty and the separation of powers. It would be unjust to delay resolution until irregularities arise, thereby placing the burden of interpretation on a sin- gle individual or entity (Ramos and Heydt, 2017, p. 133). In the broader context of legal interpretation, vagueness and indetermi- nacy are common features of legal norms (Ramos and Heydt, 2017, p. 112). Central European Public Administration Review, Vol. 22, No. 2/2024154 Sára Hrubešová However, in relation to procedural standards, the question of clarity is more straightforward. For this reason, the significant potential for improvement in determining the legal form for public administration activities. An ideal law, as envisioned, would be one that is perfect in terms of objectives, efficacy, transparency, and precise wording, drafted and enacted through an efficient process, and complaint with all content and formal requirements (Karpen, 2017. p. 4). Good legislation regarding legal forms ensures that those subject to adminis- trative activity know in advance the specific legal form an administrative body will adopt. Consistency in terminology is therefore essential, as terms should consistently express the same concepts (Ramos and Heydt, 2017, p. 131). Pre- cision in legislative language should be a guiding objective (Smejkalová and Štěpáníková, 2019, p. 95). In Czech laws, specific legal forms are often defined using ordinary Czech terms, which through legislative definitions, take on precise legal meanings. Some technical terms may acquire unique interpretations within individual statutes or even across statutes. Legislative definitions are prescriptive and au- thoritative: they dictate how terms are to be understood within a specific text, and any deviation from these definitions may result in legal non-compliance (Smejkalová and Štěpáníková, 2019, p. 94). The importance on consistency in legislative drafting is reinforced by the Czech Government’s Legislative Rules (GLR), which I will discuss below. These rules highlight the necessity for uniform terminology, reflecting the impor- tance of textual precision and discouraging the use of synonyms in legal texts, thus upholding the principle of legal certainty (Smejkalová and Štěpáníková, 2019, p. 102). 4 Czech Law-making Process and Rules for Writing Laws A well-functioning legislative process is essential for rational law-making (Kokeš, 2020, p. 98). To contextualise the role of legislator in defining legal forms of administrative activity, here is an overview of the legislative process in the Czech Republic. In the Czech system, bills may be proposed by group of MPs, the Senate (as a collective body only), the government, or regional councils. Statistically, the majority of bills are introduces by the government (Kokeš, 2020, p. 109), so this discussion will focus on process for drafting gov- ernment bills. Each bill should be accompanied by an explanatory memorandum, which as- sesses the current legal situation, explain the need for the new regulation, outlines expected impacts on public finances and evaluates the proposal’s compatibility with the both constitutional order and international treaties. The obligation to create an explanatory memorandum together with the law stems from the law and its possible failure to create it means a violation of the law and not of the Constitution. While the explanatory memorandum is not legally binding and does not obligate the interpreting authority to a particular Central European Public Administration Review, Vol. 22, No. 2/2024 155 Shaping Administrative Activity (Legal Forms): A Legislative Approach interpretation (Šín, 2009, p. 90), it can serve as a valuable source of argument in administrative or judicial decision-making. Nevertheless, some scholars have criticised the inconsistent quality of explanatory memorandums provid- ed by drafters (Boháč, 2011, p. 322). The government is responsible for the quality of the legislation it proposes. The Government’s Legislative Council, an advisory body, along with its spe- cialised working committees, assists in the legislative process. The drafting is typically conducted by an official within a ministry or its legislative depart- ment. Also in this context Czech legal scholars have noted a shortage of skilled drafters in these roles and a lack of practical legislative training at Czech law schools (Boháč, 2011, p. 220 or Bražina, 2016, p. 1002). The legislative process begins with the formulation of the bill’s substantive intent. Once this plan is approved, the relevant ministry, government official or central administrative body drafts the legislation. The draft bill is then cir- culated for comments and revised based on feedback receiving during the consultation phase. The bill is subsequently uploaded to the Government Of- fice’s electronic library and submitted to the Government’s Legislative Coun- cil which issues an opinion on the draft and may recommend revisions. Once the government approves the bill, incorporating any recommended changes, it is deemed a government bill. The Government’s Legislative Rules (GLR) is pivotal for government bill drafting. According to Article 2 of the GLR, each legislative proposal must be informed by a thorough analysis of the relevant legal and factual circum- stances. Legislative drafting must strive for clarity, with precise language and coherent structure. The GRL provide both procedural and technical guidelines, which rather than strict directives, reflect best practice in drafting, nevertheless they are legally binding upon government members (Smejkalová and Štěpáníková, 2019, p. 104). The GLR are not exhaustive; they often require interpretation and are supplemented by legislative practice and generally accepted drafting tech- niques (Smejkalová and Štěpáníková, 2019, p. 105). Since the GLR are formal- ised as government resolution, they constitute internal normative instruc- tions binding upon government members. However, they do not codify rules of legal grammar. When nongovernmental bodies initiate legislation, they are not legally bound to follow the GLR (Smejkalová and Štěpáníková, 2019, p. 106–107). Even though, GLR significantly influence their legislative activi- ties especially during bill drafting (Kokeš, 2020, p. 222). On the other hand, in practice, even bodies formally bound by the GLR sometimes regard them more as guidance than binding requirements (Wintr, 2021, p. 43). 4.1 The Constitutional Court as a Negative Legislator The Constitutional Court acts as a “negative legislator”, with the authority to annul laws that are found to contravene constitutional standards. This power is exercised through two types of reviews. An abstract norm control can be Central European Public Administration Review, Vol. 22, No. 2/2024156 Sára Hrubešová initiated by designated entities with standing, allowing constitutional review of a law or regulation at any time during the validity, independent of any spe- cific case. The Constitutional Court assesses weather the norm aligns with the Constitution, assessing all general aspects that could arise in its interpretation and application. The second type of review is concrete norm control, which is triggered by a court encountering a constitutional issue with a law during a specific case or an individual together with a constitutional complaint. Here the Constitutional Court’s assessment is limited to the constitutional con- cerns arising in that specific case (Stone-Sweet, 2000, pp. 44–45). The Constitutional Court has clarified that the GLR cannot serve as criteria for determining the constitutionality of enacted legislation.8 Violation of the GLR alone, do not render a law unconstitutional.9 However, the Constitution- al Court has acknowledged that severe deviations from GLR guidelines – such as significant lapses in categorising legislation correctly – could breach the constitutional principle of the rule of law. For instance, if a law’s classifica- tion is unclear making it indistinguishable from other statutes.10 According to Kokeš, such a serious violation of the GLR could violate legislative clarity and comprehensibility requirements, potentially leading to a finding of inap- plicability. Additionally, circumvention of Government’s Legislative Council’s negative opinion or complete lacking of cooperation with the Council might indicate disregard for procedural integrity, as Kokeš argues (Kokeš, 2020, p. 224). To date, there is no precedent in Constitutional Court’s case law where a statute has been annulled due to deficiencies in definition the legal form of public administration activity. The Constitutional Court has yet to determine whether omitting or removing explicit legal form in a law could contravene the constitutional order.11 5 To Give an Example Examining the legal form of the measure of a general nature (relevant in the case study below), it is considered a mixed administrative act from the theo- retical standpoint. Mixed administrative acts have characteristics of both indi- vidual and normative administrative activity. They feature either an abstractly defined circle of addressees with a concretely defined subject of legal regu- lation or vice versa. Normative administrative acts, in contrast, are directed 8 Judgment of the Constitutional Court of 18 August 2004 Pl. ÚS 7/03 (N 113/34 SbNU 165; 512/2004 Coll.) or Judgment of the Constitutional Court ruling of 13 December 2016 Pl. ÚS 19/16 (N 237/83 SbNU 677; 8/2017 Coll.). 9 Kokeš addressed the question of what impact the government‘s adoption of legislative rules in the form of a lawmaking bill (legislation) could have. See Kokeš, 2020, p. 224. 10 Judgment of the Constitutional Court of 31 January 2008 Pl. ÚS 24/07 (N 26/48 SbNU 303; 88/2008 Coll.) 11 Discovered using the Constitutional Court case law search engine available on https://nalus. usoud.cz/; entering criteria: type of proceedings: for the annulment of laws and regulations and in the text: ‚legal form‘, ‚administrative act‘, ‚public administration activity‘. In this study sample, I have only looked closely at statutory review proceedings in the field of administrati- ve law (I have aliminated subordinate legislation). Central European Public Administration Review, Vol. 22, No. 2/2024 157 Shaping Administrative Activity (Legal Forms): A Legislative Approach at abstract group and regulate subject matter in general terms, while indi- vidual administrative act focus on specific individual(s) and issues (Hejč and Bahýľová, 2017, p. 27). Measures of a general nature in the Czech system are reviewed by admin- istrative courts, which protect public subjective rights concerned as defined in Section 2 of the CAJ. This provision establishes that administrative courts safeguard the public subjective rights of both natural and legal persons. Therefore, in my opinion, defining a measure of a general nature for judicial re- view implies that it directly affects public subjective rights. In contrast, Czech courts do not consider interference with public subjective rights a character- istic of normative administrative acts. In Czech legal framework, normative administrative acts are subject to review by the Constitutional Court, through either concrete or abstract norms reviews. This distinction arises because normative administrative acts are seen as not directly infringing on individual rights. However, some legal scholars have questioned this distinction, noting that subordinate legislation (normative administrative acts) may itself affect individual rights, even without an individual decision (act of application).12 To better understand the legal form of the measure of a general nature, a comparative approach is helpful. Hejč and Bahýľová in study comparing Czech and several European legal systems found that German’s laws explicitly rec- ognise measures of a general nature under the term Allgemeinverfügung. Ger- man law defines an Allgemeinverfügung as an administrative act issued by an authority to regulate a specific case in the field of public law, producing im- mediate external legal effects. An Allgemeinverfügung is directed at a gener- ally characterised group of persons and concerns a public characteristic of an object, creating direct legal consequences (Hejč and Bahýľová, 2017, pp. 30–47). In the Czech Republic, the Ministry of the Environment has issued Air Qual- ity Plans (AQPs)13 as measure of a general nature under Section 9 of Act No. 201/2012 Coll. on Air Protection. However, a legislative amendment effective from September 1, 2018, removed the explicit designation of the legal form in this provision, leaving AQPs without a defined legal form. As a result, AQPs now exist in a sui generis legal form. This change was included not through a government bill but as parliamentary amendment,14 bypassing the Govern- ment’s Legislative Council and a Regulatory Impact Assessment. 12 Accoarding to Brož, 2016, pp. 22-23 normative administrative acts are able to affect or even interfere with the subjective rights of the addressees. (...) Thus, if normative administrative acts contain legal norms (which is an elementary feature for them to be materially considered as legal regulations), then they establish subjective rights and subjective obligations of unspecified per- sons. Even without the application of the given legal regulations (of course, after their interpreta- tion), it occurs that a particular person has some obligation or some right that can be limited by such acts, or in the case of an obligation, it can be enforced. See also Kadečka, S., Bražina, R. and Hejč, D. (2017), p. 295. 13 AQPs are defined by the Ambient Air Quality Directive 2008/50/EC. 14 Resolution No 19 of the 6th meeting of the Environment Committee held on 14 March 2018 (Print 13/6) Central European Public Administration Review, Vol. 22, No. 2/2024158 Sára Hrubešová According to the parliamentary amendment’s reasoning and discussion of the Environment Committee15, the AQPs impose specific obligations making the form of a measure of a general nature inappropriate. In my view, the justifica- tion for removing the legal form designation, are unconvincing. First it was argued that the issuance process for measure of a general nature is overly time-consuming and public input could be sufficiently addressed through the mandatory Strategic Environmental Assessment process (SEA). However, the APC sets out general procedure for adopting measures of a general nature, and these can be adapted or simplified special laws as need- ed.16 This means that a complicated and time-consuming process is not neces- sary to issue a measure of a general nature. Furthermore, it is true that the public (and also an individual) can participate in the SEA. However, I do not see procedural participation in the SEA comparable to participation in the process of issuing a measure of a general nature. Also in this context, the question of the possibility of defending oneself against the inaction of the administrative authority in issuing the AQP arises. Secondly, during the Environment Committee discussion, it was noted, that the removal of the form intended to make AQPs more binding. According to parliamentary amendment, AQPs in the form of measure of a general nature could not impose obligations on municipalities exceeding the scope allowed by law. This argument was supported by a judgment17 annulling an AQP issued in the form of a measure of a general nature (before discussed amendment). Supreme Administrative Court held in this judgement that this legal form was inappropriate, as a measure of a general nature could not impose obligations on municipalities beyond the scope permitted by law. It seems that this is not a problem of the legal form of a measure of a general nature, but a lack of the statutory authorisation required by the Constitution. In paragraph 59 of the judgment, the Supreme Administrative Court stated that the Czech legislator did not equip the Ministry of the Environment, as the preparer of the AQP, with any powers that would allow it to impose obligations on local authorities through the AQP. According to article 101(4) of the Constitution such a statu- tory authorisation would be a necessary condition for interference with local government. Only that the AQP is issued in the form of a measure of a gen- eral nature cannot be regarded as a statutory authorisation in this respect. Thirdly, it was also noted in the discussion that the form of a measure of a general nature had originally been introduced into the Act at the request of the Government’s Legislative Council. Also this argument implies that the re- moval of this legal form is intended to make AQPs more binding, however, it 15 Audio record of the Environment Committee meeting is available at: https://www.psp.cz/ sqw/hp.sqw?k=4606&o=8&td=22&cu=6 16 For example see measures of a general nature under the Road Traffic Act. 17 Judgment of the Supreme Administrative Court of 20 December 2017, No. 6 As 288/2016- 146, No. 3696/2018 Coll. The Supreme Administrative Court stated in its judgment that the Ministry of the Environment, which issues the AQP, has no statutory authority to impose ob- ligations on local government, as required by Article 101(4) of the Constitution, and stated that the authority to issue measures of a general nature is not in itself an authority to impose obligations on local government. Central European Public Administration Review, Vol. 22, No. 2/2024 159 Shaping Administrative Activity (Legal Forms): A Legislative Approach is not explained why AQP was not established in the form of a subordinate legislature. The legal form of subordinate legislature would lead to lower standard of right protection (as it is normative administrative act), but legal certainty would not be compromised. The sui generis legal form creates un- certainty also whether it is legally binding administrative act or a political act. Despite this rationale, the amendment’s explanatory memorandum provides no further explanation. Additionally, the claim that AQP’s specific obligations require a different legal form is flawed, as a key feature of a measure of a general nature is to address specific regulatory needs within a defined scope. The specificity of the subject of regulation does not preclude general obligations; rather, it indicated that measure applies to a particular factual circumstances or cases, while poten- tially impacting a broad range of subjects. In relation to regulatory subjects, it is necessary to differentiate between the subject of regulation (the case at hand) and its substantive content. Even where the subject of regulation is specific, the obligations imposed may still hold a general character (Hejč and Bahýľová, p. 7). However, in my view, a measure of a general nature imposes specific rights and obligations; this is evident from its defining characteristic: the impact on public subjective rights (for further details, please refer to Sec- tion 3). Another essential material feature of this legal form is that it targets an indefinite number of addressees. The lack of a clear legal form for AQPs has created uncertainty, as highlight- ed by legal scholars there is the discussion whether AQPs can be still materi- ally conceived as measures of a general nature. AQPs now in force primarily involve measures that affect administrative authorities but do not impose obligations directly on individuals. However, they can influence individual’s living conditions. Jančářová and Mrlina observe that without a designated le- gal form, AQPs face uncertain legal future. It remains to be seen how admin- istrative courts will assess the AQPs in judicial review (Mrlina and Jančářová, 2021, pp. 779–799). Since the adoption of the first AQPs with uncertain legal form, no court ruling has yet addressed this issue. Furthermore, no abstract review by the Constitutional Court of the relevant legislative provision has been initiated. In my assessment, the removal of the AQP’s explicit legal form has compro- mised legal certainty for affected individuals – whose life conditions are af- fected by these AQPs. Individuals wishing to challenge the APQ now face ambiguity about which type of administrative action applies and on top of that whether they should seek protection though administrative or Consti- tutional Court, while these ways of protecting rights are fundamentally dif- ferent. Administrative bodies also face uncertainty about proper procedures for issuing AQPs. I do not deny that flexibility in public administration is essential and legislative approaches to administrative legal forms should allow for interpretive flex- ibility. Therefore, interpreting legal forms of administrative activity will always require understanding the context (such as the functioning of law as a system, Central European Public Administration Review, Vol. 22, No. 2/2024160 Sára Hrubešová the interdependence and interrelationship of the various sources of law, the transferability of definitions, knowledge of the related process, etc.). Howev- er, legislators must keep in mind, that this context – essential for understand- ing the normative text – is usually lacking for those without a legal education and training (Smejkalová and Štěpáníková, 2019, pp. 115–116). Therefore the contextual understanding of administrative activity must remain accessible, especially to those without legal expertise. There is no other known case in the Czech legal system where an explicit des- ignation of legal form has been removed from an existing law. Nevertheless, I believe, that this case illustrates the importance of using clear legislative technique, such as directly specifying the legal form in the statute and that this designation should correspond to the material features of the particular administrative activity (referred to as Group 1 techniques in legislative draft- ing). Other legislative techniques should only be used sparingly and when jus- tified by strong reasons. However, in the case of AQPs the legislative amend- ment was made through a substandard legislative process without sufficient governmental discussion, highlighting the need for careful deliberation and procedural integrity in legislative changes affecting administrative law. 6 Conclusions The paper discusses the various forms of administrative activities carried out by public administrations, distinguishing between legal (statutory) forms and theoretical categories of administrative activities. It highlights the importance of understanding both formal and material concepts for the application of legal norms. The formal concept relies on explicit legal determination, while the material concept addresses the actual content of administrative activity. The issue of legal forms also clarifies the interconnectedness between sub- stantive and procedural law in administrative activity, showing how legal forms operate within a procedural framework that ensures they are both ef- fective and lawful. In Czech legal system, challenges arise due to procedural fragmentation and inconsistencies in defining and applying legal forms, alongside divergences between theoretical and statutory classifications of administrative activities. This fragmentation can create confusion and requires contextual under- standing to identify the appropriate legal form. The paper categorises leg- islative techniques for defining legal forms into four groups, differentiated by the degree to which the designated legal form aligns with the content of the administrative activity and by how clearly the form is articulated within the legislation. Additionally, the paper highlights the critical importance of clarity, precision, and consistency in legislative drafting to uphold legal certainty and predict- ability. The paper does not leave out the role of the Constitutional Court, par- ticularly its limitations in assessing the constitutionality of legislation on the basis of the Government’s Legislative Rules. Notably, the Czech Constitution- Central European Public Administration Review, Vol. 22, No. 2/2024 161 Shaping Administrative Activity (Legal Forms): A Legislative Approach al Court has yet to determine whether omitting the legal form designation in new laws or removing it in existing ones constitutes a constitutional violation. The AQP case is characterised by a disorderly legislative process and a lack of debate. The removal of the legal form designation in the statute was not ac- companied by a proper explanatory memorandum that sufficiently explains the procedural issues involved in issuing AQPs and protecting rights against them. With more persistent research, some of the reasons for the legislative change can be traced from public sources, however, arguments for this legisla- tive change are unconvincing and in no way mitigate the lack of legal certainty. The AQP case illustrates the practical implications of ambiguous legal form. The amendment that remove the explicit legal forms designation led to sig- nificant legal uncertainty, particularly affecting individuals whose life condi- tions may be impacted by AQPs. This legislative change has left both indi- viduals and administrative bodies uncertain about the correct legal channels for challenging AQPs and the appropriate procedures for issuing them. While flexibility in public administration is necessary, especially in complex regula- tory areas, legislative changes that introduce uncertainty about legal form can weaken legal certainty and accessibility—particularly for those without legal expertise. The lack of clear legislative guidance in this case underscores the importance of deliberate and transparent legislative techniques. Perspectives in this paper should also remind Czech legislators, that case law and legal doctrine have developed a material concept to ensure that any in- fringed rights are not left without judicial protection. However, the legisla- ture cannot depend solely on this judicial safety net; rather, it must minimise the need for material concept application by drafting clear and explicit legal forms. The author therefore advocates for the legislative technique that ex- plicitly defines legal form which also corresponds to the content and nature of the administrative activity. Prioritising this technique would reduce the need for extensive contextual interpretation, fostering greater legal certainty. By adopting this technique within legislative process, Czech law could achieve greater predictability, accessibility, and enforceability, thereby strengthening individual rights protection and reinforcing the rule of law. Central European Public Administration Review, Vol. 22, No. 2/2024162 Sára Hrubešová References Boháč, R. (2011). Důvodová zpráva. In R. Boháč et al., Legislativní proces: (teorie a praxe). Prague: Tiskárna Ministerstva vnitra. Bražina, R. (2016.) Odůvodnění normativních (s)právních aktů a jejich vztah k ochraně práv adresátů veřejné správy. Právník, 155(11), pp. 999–1010. Brož, J. (2016). Prostředky ochrany subjektivních práv dotčených normativními správními akty. Diploma thesis. Masaryk University, Faculty of Law. Della Cananea, G. and Parona L. (2024). Administrative Procedure Acts in Europe: An Emerging “Common Core”? 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Prague: Auditorium. 165 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ DOI: 10.17573/cepar.2024.2.08 1.01 Original scientific article Tackling Disinformation Through Public Administration Recommendations – The Czech Experience1 Tomáš Svoboda Masaryk University, Faculty of Law, Czech Republic tomas.svoboda@law.muni.cz https://orcid.org/0000-0002-2197-8214 Received: 1. 10. 2024 Revised: 7. 11. 2024 Accepted: 18. 11. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: The aim of this paper is to critically evaluate the practice of pub- lic administration, in which it influences the addressees of public admin- istration not through classical forms of public administration (e.g. admin- istrative decisions) but by issuing recommendations to third parties, who then carry out regulatory interventions. Design/Methodology/Approach: The paper employs qualitative research methodology and a case study approach, focusing on the analysis of the specific situation in the Czech legal environment (including existing case law), which it frames as a broader issue that can be replicated and thus requires a more general solution. Findings: The text critiques the conclusion drawn from the Czech ad- ministrative court case law, which holds that public administration rec- ommendations, if not legally binding, are not subject to judicial review. This conclusion suggests, at first glance, that public administration rec- ommendations are an activity that has no legal limits. However, this in- terpretation is challenged in particular from the perspective of the rule of law. Specifically, the regulatory model outlined above, where public administration (the state) achieves its objectives by influencing third par- ties, raises concerns. Practical Implications: It is inadvisable to view non-binding public admin- istration activity as incapable of infringing upon or otherwise influencing the rights of the addressees of public administration. Political account- ability in this area seems inadequate, particularly because of a potential lack of transparency. On the contrary, changes to legislation and great- er sensitivity from administrative courts towards these non-traditional forms of public administration might be advisable. 1 The article is a result of the project Current Questions and Issues in the Field of Public Law Stud- ies (Aktuální otázky a problémy v oblasti veřejnoprávních studií), No. MUNI/A/1573/2023, sup- ported by the Ministry of Education, Youth and Sports of the Czech Republic in the year 2024. Svoboda, T. (2024). Tackling Disinformation Through Public Administration Recommendations – The Czech Experience. Central European Public Administration Review, 22(2), pp. 165–183 Central European Public Administration Review, Vol. 22, No. 2/2024166 Tomáš Svoboda Originality/Value: The topic can be considered novel, given the limited attention it has received in the literature. This is especially true for na- tional literature (in the case of the Czech background on which the text is primarily based). While it has been explored within EU law in the context of debates about the nature of EU soft law, the issue under study does not align well with soft law (understood as a type of normative legal act, albeit legally non-binding). Therefore, only partial reference can be made to EU law. The topic of the paper is thus more closely related to the gen- eral principles of public administration rather than EU law, making it a presumably original contribution. Keywords: administrative justice, non-binding act, public administration, recommendation, rule of law, soft law JEL: K23 1 Introduction A public administration recommendation can be generally understood as a legally non-binding public administration action (a legally binding action would typically result in an administrative decision of some kind) which does not merely state facts, but through which public administration expresses a certain preference in pursuit of public administration objectives. Or in sim- pler words, administrative recommendations can be defined as “declarations which suggest a certain behaviour should be followed” (Flückiger, 2019, p. 122). It can be aimed within the public administration but also at entities out- side the public administration and can be used in various contexts and for various purposes. Public administration recommendations can also vary in “strength” (from mere advice to warnings of imminent danger, cf. Flückiger, 2019, p. 122), etc. In theory, recommendatory legal acts are typically referred to as soft law (see, e.g., Senden, 2004, pp. 111 et seq.). However, not all public adminis- tration recommendations will qualify as such. Firstly, soft law is usually un- derstood as more or less analogous to rulemaking (see Senden, 2004, pp. 111 et seq.; or Chiti, 2013, pp. 93–110). In the case of public administration recommendations, however, these need not be of a normative nature. Some recommendations can be entirely individualised and, as will be illustrated, unpublished, which also practically disallows any pseudo-normative effects. Some recommendations may lack a direct or even indirect legal basis as these may be of a de facto nature. This may raise the question of whether these are still acts of public administration in the legal sense. Therefore, some of these recommendations may even lack the character of a “legal act” making these recommendations beyond the common understanding of soft law. This makes them difficult to categorise and review. At the same time, however, we probably cannot say that public administra- tion recommendations (including those non-formalised and unforeseen by Central European Public Administration Review, Vol. 22, No. 2/2024 167 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience law) should be prohibited. To be more precise, the public administration rec- ommendations embody a certain contradiction. On the one hand, they re- flect advanced ideas about how the public administration should generally operate. These ideas include activities that go beyond the “statutory mini- mum” of performance of public administration. Mainly the principles of good administration could be referred to (see, e.g., Marzel, 2019, pp. 31 et seq.; or in more detail Wakefield, 2007). Public administration should therefore serve the public, which may involve various non-legally binding non-formalised acts (including recommendations) if that is what the high standard of good admin- istration requires. On the other hand, questions arise regarding the limits of these administra- tive recommendations. More precisely, what are the limits of what and how (the good) public administration can recommend? In the legal sense, in par- ticular, there are questions of which form of public administration activity these recommendations are supposed to take and how (if at all) these activi- ties can be legally challenged, in particular in administrative justice. The aim of this paper is to present some of the problems that may arise from the use of the recommendations – as specific legally non-binding activities – in public administration and to formulate some of the basic limits to this admin- istrative practice and argue for the availability of judicial protection. 2 Administrative Recommendations 2.1 Administrative Recommendation and (Theoretical) Forms of Administrative Activity Of course, public administration recommendations are not entirely unrecog- nized by administrative law doctrine. However, we cannot speak of any uni- form approach - different legal systems understand these specific activities differently. The common law typically distinguishes between the activities of the different branches of state power (i.e. the legislative, judicial, and executive branches) (see Singh, 2001, p. 69). However, when it comes to a more detailed catego- risation of the activities of public administration, this is generally no longer provided by the common law doctrine.2 It is therefore essential for the recom- mendation of public administration in the common law context that it is an activity of the public administration, which is then subject to the correspond- ing requirements. In this case, this perspective may be beneficial, as it prefers to approach the administrative recommendation through its content rather than its form. 2 For example, while common law publications focused on general administrative law usually do cover the application of the law by public administration (“administrative adjudication”), they generally do not categorise forms of administrative activities in the same way (not even the general concept of an administrative act) as the continental doctrine of administrative law usually does; see, e.g., Wade and Forsyth, 2009; or Cane, 2016. Central European Public Administration Review, Vol. 22, No. 2/2024168 Tomáš Svoboda The continental law perspective is different, as legal doctrine here typical- ly classifies and categorises administrative activities. However, various ap- proaches can be found as well. According to the literature, a more systematic place for public administration recommendations can be found, for example, in Swiss law (Flückiger, 2019, pp. 121–135). Other jurisdictions, while they may not view public administration recommendations as stand-alone instru- ments, may understand them as part of broader categories of administrative activities. For example, Polish administrative doctrine distinguishes (in addition to classical forms of administrative activities, in particular administrative acts) also “factual activities”, which include, for example, various information ac- tivities of the public administration (see, e.g., Pawlowski, 2021, pp. 516–517 and 520). A somewhat similar situation is in the Czech administrative law doctrine, which distinguishes factual activities (as non-formalised actions of public administration) and so-called “other acts” as generally formalised acts, but different from a classical administrative decision (particularly in having lesser legal effects, which is why these acts are sometimes referred to as non- regulatory or non-decisions, therefore these acts are generally legally non- binding) (see, e.g., Potěšil and Svoboda, 2024, p. 20). A public administration recommendation may fall under both of these categories – depending on its form and purpose. In the case of the Polish or Czech legal doctrine, the German so-called ad- ministrative “real acts” (Realakt) can be regarded as a starting point for the aforesaid categories. These acts are not intended to have traditional legal ef- fects (as is the case with an administrative act – Rechtsakt), but rather the actual (real) results of administrative activities are the purpose. In German administrative law doctrine, a distinction is made between explanatory real acts (Wissenserklärungen) and real acts with factual functions (Verrichtungen) (Singh, 2001, p. 107). Recommendations of public administration are well sub- sumable under the former category – explanatory real acts. This is typically where various information activities, warnings, expert opinions of public ad- ministration, etc., are included (Singh, 2001, p. 107). The foundations of real acts are shared by other related legal orders (e.g. Swiss) (see, e.g., Tschannen, and Zimmerli, 2005, pp. 205 et seq.). The basis for administrative recommendations as a form of public administra- tion can also be found in the administrative law doctrine of other European countries. For example, the Slovak concept of the forms of public adminis- tration is based on many similar historical foundations as the Czech system (which is because of the common Austrian and later socialist fundamentals of the former Czechoslovak legal doctrine). Therefore, even in Slovak adminis- trative law, the category of factual activities (which is one of the possible clas- sifications of an administrative recommendation) is present (see, e.g., Macha- jová et al., 2012, p. 195). French administrative law, on the other hand, offers a different perspective. Here, instead of subordinating administrative rec- ommendations to appropriate forms of administrative activity, the broader Central European Public Administration Review, Vol. 22, No. 2/2024 169 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience concept of non-binding (soft law) administrative activities can be highlighted – droit souple.3 However, the possible subsumption of public administration recommenda- tions within the theoretical system of forms of public administration activi- ties does not mean that the nature of the administrative activity in question will be clear to the addressees, the public administration itself or, even the administrative courts. A particular problem, which is mentioned later in the text, is the “non-administrative” legal basis for the exercise of a particular public administration recommendation – some recommendations may be of a private law nature (typically in the context of the exercise of the so-called non-sovereign public administration, i.e. property management by the state or other public entities or providing certain public services). In such cases, administrative law does not generally provide the necessary answers, as the essence of administrative law is to regulate the performance of public pow- ers, which (unlike public administration recommendations) generally leads to the legally binding outcomes. Beyond the exercise of public administration in particular (European) states, public administration recommendations, or more precisely soft law instru- ments in general, have their place in international law or the EU law (cf. Har- low and Rawlings, 2014, p. 51). 2.2 A Closer Outline of the Addressed Issue As already mentioned, some of the public administration’s recommendations are legally anticipated. Probably the most general example is the recom- mendations in EU law. Article 288 of the Treaty on the Functioning of the European Union allows the EU institutions (which may be regarded as public administration in the broader sense), when exercising their competencies, to adopt “regulations, directives, decisions, recommendations and opinions.” According to the same Article both recommendations and opinions explicitly “shall have no binding force”. At the same time, as the literature accurately points out, the fact that these recommendations are foreseen by the primary EU law indicates that they are intended to be legal acts, albeit legally non- binding (Hubková, 2022, p. 2). A practical example of application is the recommendations within The Euro- pean System of Financial Supervision (ESFS). This network is based on three European Supervisory Authorities (ESAs), the European Systemic Risk Board, and the national supervisory authorities with the main objective of consist- ent and appropriate financial supervision throughout the EU.4 In particular, the ESAs involved in this system issue guidelines, which are then taken into consideration by the national supervisors. These recommendations have indi- 3 Including some general recommendations for its use by Conseil d’État: Le Conseil d’État - le droit souple. At , accessed 6 November 2024. 4 European System of Financial Supervision. At , accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024170 Tomáš Svoboda rect effects – they are addressed to national supervisors, who then regulate (in conventional forms – i.e. in a legally binding way) the individuals in the EU member states. However, recommendations of public administration authorities can also op- erate more or less directly – targeting society and influencing its behaviour. These recommendations can also be specified, and individualised (not imple- mented in a normative manner – i.e. guidelines). Currently, these recommen- dations can be observed, for example, in the area of cybersecurity. A broader example could be the EU’s recommendation not to use the 5G software or hardware technologies from Chinese suppliers (Huawei, ZTE),5 based on a cer- tain EU policy framework (“5G Toolbox”).6 Another example of recommenda- tions in EU law may be consumer warnings – recommendations designed to protect consumer against defective products.7 It is important to emphasize that the possibility of not complying (lack of legal- ly binding force) does not mean the recommendations of public administra- tion “do not work” – are non-existent, irrelevant, or ineffective. The intention of the public administration’s recommendation is, of course, some desired effect. Therefore, public administration recommendations pursue (or should pursue) a specific objective. If a public administration warns against a dan- gerous product, for example, this usually reflects the lawful and legitimate task of the public administration to protect consumers. These recommenda- tions are generally non-binding for consumers, therefore, they may disregard them. But at the same time, we could argue that it is in the consumer’s best interest to trust the administrative authority and follow these warnings in or- der to avoid possible injury. But trust in public administration is two-sided because it can also lead to an injury if the public administration’s recommendation is flawed (incorrect in its grounds, unreasonable, disproportionate, etc.). Obviously, an incorrect warn- ing of a defective product can harm a manufacturer of products incorrectly marked as defective. Similarly, in the aforementioned case of 5G technolo- gies, without questioning the validity of the recommendations, they probably have led to much fewer business opportunities for problematic suppliers in the EU. Questions logically arise regarding the protection of rights and the possibility of reviewing administrative recommendations. This is probably less of a problem in cases when the public administration’s recommendations are legally anticipated (when they are made by specific administrative bodies in a specific area of the public administration agenda using specific legal forms of public administration, etc.). However, some (and probably most) public administration recommendations are adopted without 5 Commission announces next steps on cybersecurity of 5G networks in complement to latest progress report by Member States. At , accessed 30 September 2024. 6 The EU toolbox for 5G security. At , accessed 30 September 2024. 7 Safety Gate: the EU rapid alert system for dangerous non-food products. At , accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024 171 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience an explicit legal basis. In practice, this is arguably not problematic because these recommendations tend to be very general and not individualised (e.g. as was the case of various recommendations concerning the covid-19 pan- demic). Hence, even if these recommendations turn out to be incorrect, they are not sufficiently manifested in the individual sphere (and there is usually no practical reason to raise legal questions). Sometimes, however, the “perfect storm” can occur - a public administration recommendation without any direct legal basis, which is (in its content) diffi- cult to accommodate within the requirements of the law, and which is directly aimed at specific individuals in the context of a major social issue. One such case was the blocking of so-called disinformation websites in the Czech Re- public in 2022 which the paper briefly introduces below. 3 The Recent Czech Experience 3.1 The Blocking of Disinformation Websites The Czech legal doctrine, despite the historical presence of a classification of forms of public administration activity, generally does not pay attention to the issue of recommendations or, more generally, non-binding activities of the public administration (the focus is almost exclusively on “traditional” legal forms of public administration activities, but even there the doctrine is not very robust). At this time, probably the only area where a public administra- tion recommendation receives some in-depth attention in the field of admin- istrative law is cybersecurity (see, e.g., Bražina, 2020, pp. 692–702). In the Czech Republic, following the EU approach against Chinese 5G technol- ogy suppliers, a recommendation (“warning”) was issued in 2018 by the public administration - the National Cyber and Information Security Agency. Later (in 2022), this administrative authority also issued a “Recommendation for assessing the trustworthiness of technology suppliers of 5G networks in the Czech Republic” which is basically a guideline aimed at problematic Chinese suppliers. However, these recommendations have not drawn wider public at- tention (probably because of a very narrow group of their addressees). Things have changed with the case of the blocking of so-called disinformation websites from 2022, which is still subject to court decisions. This blocking took place as a direct reaction of the Czech state to the Russian invasion of Ukraine on 24 February 2022. It can be characterized as a somewhat improvised re- action of the public administration to the alleged disinformation activities of about twenty websites that were supposed to justify the Russian aggression. In a broader sense, it was, as the state has claimed, a matter of national security. The problem, however, is that the blocking in question was not based on any specific administrative act (typically a decision), as there is no legal basis for is- suing such an act in the Czech legal order (not even now, more than two years later). However, according to statements made by some state officials, the Czech public administration nevertheless felt the need to react. This response Central European Public Administration Review, Vol. 22, No. 2/2024172 Tomáš Svoboda happened through a request to the technical infrastructure providers (private law internet infrastructure administrators and mobile phone operators) to block the designated websites. This request was largely followed and most of the designated sites were temporarily blocked for many months (some are still unavailable today). The request was issued by Military Intelligence as one of the Czech secret services. However, the request was rather ambiguous in its content. This is because it combined elements typical of binding acts of public administration (e.g. it repeatedly referred to the implementation of a preventive measure, terminology typical for Czech administrative law, and referred to a preced- ing Government decree, thus indicating the implementative nature of the request). On the other hand, the request did not contain a clear statement establishing an obligation to obey. Instead, it expressed appreciation to the addressees for their courage and wished them good luck, which, of course, is very unusual for a binding administrative act. It can be argued that already this ambiguity rendered the request faulty from a legal perspective. Also problematic is the fact that the request was made in private (was not published or announced). In short, the Military Intelligence approached the addressees of the request directly and did not communicate it publicly in any way. The content of the request therefore only became public about a month after it was made, on the basis of the transparency laws.8 The blocking, be- hind which the state was later “exposed”, sparked the discussion about the limits of how the public administration should or should not act, including alle- gations of state censorship (which is forbidden by the constitutional order9). The case also had a judicial follow-up on two levels – on both the public and pri- vate law levels. However, the legal aspect of the whole case turned out to be very simplified – especially from the point of view of the administrative courts. 3.2 The “Trap” of Legal Dualism The basic problem of legal evaluation of the above-mentioned public adminis- tration recommendation seems to be the division of law into private and pub- lic law (the so-called legal dualism). This is true at least in the Czech Republic and probably also in other legal systems that strictly differentiate between public and private law – e.g. France (cf. Bell and Lichère, 2022, pp. 128 et seq.), Germany (cf. Singh, 2001, pp. 94 et seq.), etc. Legal dualism in the Czech Republic leads to a sometimes overly simplistic view of public administration, which appears binary. In this sense, either the public administration acts as a performer of public authority (public powers), or on the other hand, the public administration bodies act as bodies of public legal entities (typically the state, municipalities, etc.), and their activities are regulated, in principle, by private law. This view is typical for administrative 8 Cibulka, J. ‚Hybridně působí ve prospěch Ruska.‘ Vojenští rozvědčíci zveřejnili dopis, proč žádali blokaci webů. At , accessed 30 September 2024. 9 Article 17(3) of the Charter of Fundamental Rights and Freedoms (of the Czech Republic). Central European Public Administration Review, Vol. 22, No. 2/2024 173 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience courts. It is also understandable because administrative courts do indeed op- erate in a binary fashion – either a certain public administration activity (or in- activity) falls within their competencies or it does not. There is no third option. The reality of public administration seems to be far more complex. Rather, it is a spectrum of activities (see Svoboda, 2024, p. 185) that starts with the characteristic (fully legally binding) exercise of public authority (mainly issu- ing administrative decisions or administrative rule-making) and continues through less legally “involving” activities (e.g. various auxiliary acts – such activities may include public administration recommendations, statements, certificates, registration acts, information acts, etc.), which do not, usually, interfere with the rights of the addressees of public administration (but at the same time it cannot be ruled out), and ends with the remaining subsidiary acts or other activities of public administration that have no external legal relevance (e.g. organisational acts, etc.), or are of a private law nature. However, the strictly binary perception leads to only two conclusions. In the context of the outlined request to block disinformation websites, either the recommendation in question was a “traditional” exercise of public authority (then, in particular, it is required to be legally binding), or it was a kind of pri- vate law expression of the state’s “opinion” on whose websites should be (vol- untarily) blocked by technical infrastructure providers in the name of so-called (society-wide) fight against disinformation. These options do not seem suf- ficient. In the presented case, the Czech administrative courts came up with a different option – a third solution. Unfortunately, the case law interpretation of the request in question was even less favourable to the applicants. There- fore, it does not lead out of the “trap” of legal dualism but rather reinforces it. 3.3 Closer Look at the Czech Case Law The blocking of disinformation websites has been dealt with in three cases before Czech Administrative Courts. However, one of them was particular- ly interesting as the state (Military Intelligence) was sued by two non-profit organisations arguing that the blocking prevented them from accessing the websites they monitor in their operations (the case therefore also had the dimension of strategic litigation). Their lawsuit was also motivated by the advocacy of public administration transparency (as the Military Intelligence approach was clearly non-transparent). Surprisingly, no operator (owner) of the blocked websites sued the public administration (state) in administrative justice. Instead, in one case, they sued the technical infrastructure providers for damages.10 In each case, the administrative courts (Regional Court in Prague11 and even the Supreme Administrative Court of the Czech Republic12) dismissed the claims for basically the same reasons. The main reason was that courts inter- preted the request in question as a mere recommendation without any legal 10 See footnote 23. 11 See decisions no. 17 A 36/2022-9, 14 A 39/2022-14 and 11 A 25/2022-63. 12 See decisions no. 5 As 230/2022-66 4 As 206/2022-113 7 and As 22/2023-41. Central European Public Administration Review, Vol. 22, No. 2/2024174 Tomáš Svoboda obligation. In the courts’ view it was not a blocking order, but rather a (in this situation generally understandable) political declaration by the state, which contained only a non-binding appeal to technical infrastructure providers. At the same time, however, the administrative courts, somewhat surprisingly, did not dispute that the request in question was a “product” of public admin- istration activity, or that the Military Intelligence acted as an administrative authority (and that it was possible to file a lawsuit in the administrative justice system). This conclusion is problematic since it means that the public administration’s recommendation in question is not – in the binary perception of public ad- ministration outlined above – actionable in private law. For a private lawsuit (which, as should be added, probably would have been difficult and unlikely to succeed, but still possible), it is essential that the state acts as a legal en- tity, not as a public administration authority (or other public authority – e.g. a court), in giving the recommendation. An administrative action is therefore, according to the Czech case law, the only way of judicial protection against public administration recommendations. However, this possibility is restricted by the nature of the recommendation under review. If the recommendation is strictly legally non-binding, an action can be filed, but it cannot succeed. It is appropriate to add that, constitutional complaints were raised against the decisions of the administrative courts, but they were – in all three cases – also rejected by the Constitutional Court of the Czech Republic.13 At the same time, in Czech law, it is established that it is possible to appeal to the Constitu- tional Court only after having “used up” all the ordinary means of protection of rights, which is also considered to be an action in the administrative justice system. By accepting the opinion of the administrative courts, the Constitu- tional Court de facto closed the way to successful constitutional complaints in similar cases. This means that in Czech law the non-binding recommendation of the public administration authorities cannot be subject to any judicial review. Apart from judicial review, there are no other potent means of protecting the rights of the persons concerned in these unusual situations. As in other legal systems, oth- er means of protection (remedies) are also available in Czech administrative law. But at the same time, they are not as “strong” as judicial protection – they do not initiate any review proceedings with the power to revoke or declare the illegality of the public administration recommendation. The typical option is to complain to the Public Defender of Rights (Czech general ombudsperson institution). But this state body, as is characteristic, does not have the power to fully review the public administration’s recommendation in question. In the nature of its design, it can only apply informal pressure (see Chamráthová et al., 2019). According to the author’s information, no complaint to the Public Defender of Rights has been made in this case. 13 See decisions no. Pl. ÚS 6/23, Pl. ÚS 5/23 and III. ÚS 2628/23. Central European Public Administration Review, Vol. 22, No. 2/2024 175 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience Another possible means of protection may be the general complaint under the Code of Administrative Procedure.14 However, the same applies - it does not represent any authoritative review of the public administration activity. Rather, it is a subsidiary tool that may lead to individual public officials being disciplined for incorrect administrative practices. However, neither does this complaint have comparable effects on administrative practice as a binding decision of an administrative court. Compensation for damages against the public administration (the state) can also be seen as a means of protection of rights. In the Czech legal order this is regulated in a special law,15 but it re- quires a defective performance of public administration, and its assessment is generally difficult (but not impossible) with an unfavourable prior decision of an administrative court. It unfortunately means that the recommendation in question (which has led to the blocking of disinformation websites) cannot be effectively defended and that public administration recommendations probably have no real legal limits (in the sense of them being enforceable). The Czech public administra- tion can thus – as it seems in the perspective of the case law – recommend “anything”, provided that it maintains the strictly non-binding character of the recommendation. I believe that such a conclusion is very difficult to accept in the context of the requirements for modern public administration and the rule of law (as the key fundamental principle of public governance in the Czech Republic and generally) (cf., e.g., Janderová, 2019, pp. 119 et seq.). It is, therefore, reasonable to consider where the mentioned limits of administrative recom- mendations should be, or rather when these limits should be legal and be enforceable by law (via appropriate legal remedies). 4 Discussion – Limits of Recommendations 4.1 The Political Accountability Scenario The conclusion that the public administration recommendations (supposedly) have no legal limits does not mean, of course, that public administration will do “anything” in practice. There will still be limits, even if not legal ones. The main limit seems to be political responsibility or rather accountability (see Crawford, 2013, pp. 83–85). After all, political accountability has (somewhat) worked in the analysed case. Due to considerable public criticism, the public administration has not yet repeated a similar recommendation as in the case of blocking disinformation websites in 2022. Systematic relying on political accountability in the case of public administration’s (legally non-binding) rec- ommendations, however, has at least two serious pitfalls. 14 See Article 175 of the Czech Code of Administrative Procedure (Act No. 500/2004 Coll., Admi- nistrative Code). 15 Act No. 82/1998 Coll., on Liability for Damage Caused in the Exercise of Public Authority by Decision or Maladministration. Central European Public Administration Review, Vol. 22, No. 2/2024176 Tomáš Svoboda The first one is the overall mechanism of political accountability. In general, it can be linked to the level of political culture in a given country. Unfortu- nately, in the Czech Republic, the political culture cannot be regarded as well developed.16 Therefore, this mechanism may not be “reliable”, or rather, it is undoubtedly much less predictable than the legal responsibility (liability). Frequently, political accountability will also be unavailable simply because some administrative authorities are legally protected from political influence as well as political accountability (thus, there are no public officials who can be punished for their misconduct by not being elected). Secondly, knowledge of a particular public administration practice seems to be a conditio sine qua non for the application of political accountability. Without transparency, public administration practices cannot be effectively subjected to public criticism. In the case of the recommendation in question, however, transparency was lacking. More specifically, details of the substance of the public administration’s approach were only published months later, and potentially may not have been published at all or too late for effective political accountability to be applied (e.g. after the elections). 4.2 The Need for Legal Limits Therefore, I believe that reliance on public criticism is generally inadequate. More specifically, public administration recommendations should be subject to legal limits and scrutiny. The reason is not only to protect against non- binding acts and activities of the public administration but also to uphold the rule of law from a broader perspective. This is because the opposite approach would lead us to the conclusion that public administration can recommend (to someone else to do) what it cannot legally do itself. In the case of blocking disinformation websites in the Czech Republic, the state is prohibited from censorship, and freedom of expression is protect- ed.17 If the state wanted to block the websites in question, it would have to have an appropriate legal framework, which would have to respect the un- derlying constitutional and human rights grounds (in particular, it would have to be proportionate) and, consequently, this framework would have to be cor- rectly legally applied and, if necessary, reviewed by the administrative courts. When the state (public administration) asks private entities (e.g. technical in- frastructure providers as in the case) to block the websites, its request is not subject to any specific procedural requirements (e.g. determination of the 16 An example of this is the current case of serious shortcomings in the implementation of the digitalisation of the Czech building procedures, which, according to the parliamentary oppo- sition and some members of the Government should have led to the resignation of I. Bartoš, the Minister for Regional Development. Bartoš has had, however, made it clear that his resig- nation would be of no benefit (for the goal of digitalisation). But we could argue the essence of political accountability is not to supposedly optimise the utility of someone’s resignation but to sanction a political failure. Later at the end of September 2024, Bartoš was removed by the Prime Minister. 17 See Article 17 of the Charter of Fundamental Rights and Freedoms (of Czech Republic), sim- ilarly see e.g. Article 10 of the Convention for the Protection of Fundamental Rights and Hu- man Freedoms. Central European Public Administration Review, Vol. 22, No. 2/2024 177 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience facts) and is apparently not even bound by the constitutional principles, as long as these recommendations are still only recommendations without legal binding force. In one of the administrative lawsuits in the case, it was argued that the state, according to the case law of the European Court of Human Rights, cannot block the entire website, but that the blocking should be directed more spe- cifically at the problematic content (as the entire website may have various content and the overall blocking may be disproportionate),18 but the Czech administrative courts did not follow this argument (again referring to the rec- ommendatory nature of the request). Therefore, the state probably could not have decided to block the websites in question “en masse”, but it could have asked someone else (!) to block them on this large (and probably unconstitu- tional) scale. That seems somewhat absurd.19 Therefore, I believe that there must be legal limits to public administration recommendations, including the ability to control and reinforce them. Trans- parency should be the most obvious one. That is to say, if a public administra- tion asks a certain entity to cooperate with a potentially significant impact on the recipients of the public administration (or probably even one individual recipient) it should do so transparently and allow for public scrutiny. I believe, however, that we should go much further, or rather that the risks of the ab- sence of legal limits are higher than the mere lack of transparency. 4.3 Governing by Recommendations? The problem to which the outlined legal vacuum may lead is potentially a “new model” of public administration delivery. More precisely, in some cases, public administration can effectively achieve its objectives not through traditional legal instruments (administrative acts, etc.), but rather through various rec- ommendations and informal influence on non-state actors. This model may represent a win-win situation for both the state and these non-state entities. The state may find this model attractive for obvious reasons. The absence of a statutory regulation means that the state does not have to adopt often com- plex and socially controversial laws. Consequently, it does not have to apply them in the presence of strict procedural requirements. Above all, the state does not bear responsibility for possible failures. The one who will infringe the rights of the addressee of state action will not be the state (a public adminis- tration authority) but a non-state actor following a state recommendation. Even for the non-state actors, this model may be beneficial. By obeying the public administration’s recommendations, they can avoid the introduction of potentially much stricter legal regulation, which could impose (as a legal 18 See especially ECtHR Judgment of 23 June 2020 in Case No. 10795/14 (Kharitonov v. Russia). 19 A witty comment by one of the Czech scholars illustrates it well – if the state cannot issue a death sentence (since the death penalty is constitutionally prohibited), it also cannot recom- mend the killing of a certain person inconvenient to the state to the company “Murders, Ltd.” – Koudelka, Z. (2024). Cenzura webů a správní soudy. At , accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024178 Tomáš Svoboda obligation) what has been so far requested without any obligation, and po- tentially on a much wider scale. There may be advantages in complying with a public administration’s recommendation, even if it may trigger some legal liability. In other words, the costs of such liability may be lower than the po- tential costs induced by a traditional statutory regulation. Compliance with the recommendations may, therefore, be preferable to compliance with a “full-scale” regulation. According to some opinions, this is the reason why the United States does not yet regulate digital platforms in a comparable way to the European Union.20 The US administration’s objectives, as it seems, can also be achieved on the basis of informal cooperation. More precisely, according to unofficial sources (investigative journalists), this cooperation is already happening.21 This model also has some “justification” in the Czech Republic. After blocking disinformation websites, the Government initiated the preparation of a law that would allow the state to order the blocking (the so-called “Disinforma- tion Act”). The first draft of this law was unsatisfactory,22 but the problem was elsewhere – the related public criticism made this law a politically “toxic” matter. Thus, until after the parliamentary elections in 2025, it is very unlikely that the state will attempt to regulate this area. But at the same time, the co- ordinated disinformation operations may pose a threat and there may indeed be a need for legally correct (i.e. especially constitutionally proportionate) regulation. Meanwhile, what the state has at its disposal is this problematic model of governing by (administrative) recommendations. And the lesson for achieving objectives of public administration this way from the current devel- opment is clear – it is possible to recommend, but it is necessary “not to get caught” while doing so (more precisely, not to allow transparency and corre- sponding political accountability to arise). Those who “lose” in the model outlined above are, of course, the recipients of state regulation. They can be restricted in their rights without being confront- ed with an administrative act that can be legally challenged. In the context of the above-mentioned case law of the Czech administrative courts, defence against the state by means of public law is rather unattainable. Therefore, what is left is, in general, a private law defence against the non-state actor through which the state influences the final addressee. However, these remedies are problematic. They may not be available (the non- state actor is not in breach of any legal obligation or the breach cannot be effectively sued). But even if these remedies are available, it is generally diffi- 20 See especially Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). 21 As claims M. Taibbi and some other American investigative journalists in the publicly known Twitter Files case – see, e.g., Malik, K. The Twitter Files should disturb liberal critics of Elon Musk – and here’s why. At , accessed 30 Sep- tember 2024. 22 Ministerstvo vnitra ČR. Poskytnutí informace - zákon, dezinformace. At , accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024 179 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience cult to protect public individual rights through private law remedies. Although fundamental rights also play a role in private law (according to the Czech Con- stitutional Court’s jurisprudence fundamental rights “shine through” the legal order), and some judicial protection is obtainable (e.g. on the basis of liability for damages23), in the end, it is not the public administration that is being sued. The deterrent effect of a court decision is therefore limited. We could even argue that this model of public administration delivery some- what bypasses the rule of law principle. We could certainly recognise a num- ber of aspects of the rule of law, but the key aspect (apart from the legal basis for the exercise of public authority) appears to be the availability of legal rem- edies. When it comes to the protection of public individual rights, the legal order has a certain system of remedies with the administrative judiciary at its core. The exercise of public administration through private “intermediaries” instead of administrative bodies seems to substantially weaken this system. It also weakens the rule of law itself. 4.4 The Outline of Possible Solutions It is worth adding that the problem of governance through soft law is not entirely new – it has been recognised and discussed in the context of EU law. In this context, it is referred to by some authors as “soft governance” (Harlow, 2014, pp. 51 et seq.). The problem is that this model has some justification and rationality. Advantages of this model in the context of EU law include the flexibility and range of legal instruments allowing the construction of vol- untary EU policies that can also include non-member states (Harlow, 2014, pp. 52–53). On the contrary, the disadvantage of soft law at the EU level is described as its deliberate vagueness, leading to hiding the expansion of the EU’s hard law. It is also accused of being undemocratic, as soft law is not a product of the ordinary rule-making process of the EU institutions. Yet, as such, EU soft law is accepted as inevitable (Harlow, 2014, pp. 53). At the same time, however, we could argue that the rationale behind EU soft law is not the same as the rationale behind the legally non-binding public ad- ministration recommendations under consideration at the level of national law. If in EU law it is (albeit disputed) part of an established legal system, in the case of national law it may constitute an escape from that system or even its deconstruction – by the use of public administration recommendations or other soft law instruments where more traditional hard law is supposed to be applied. Unfortunately, the answer to how to respond to this model of public administration delivery (based on recommendations to non-state actors) is not simple. Below is the outline of possible solutions (which would need to be dis- cussed in greater detail, which is beyond the scope of this brief paper). 23 Currently, at least one of the applicants (the owner of one of the blocked disinformation web- sites) has been successful in its action against the mobile operator implementing the blocking (see the decision of the Municipal Court in Prague of 29 February 2024, No. 20 Co 6/2024- 296). However, the decision is not final. Central European Public Administration Review, Vol. 22, No. 2/2024180 Tomáš Svoboda Firstly, we could consider that the issuing of recommendations by the public administration should be – in general – more strictly regulated and/or consid- ered as a “classical” exercise of public administration with all the limits and protection of rights. But this solution is double-edged. Public administration has different layers and approaches. In particular, we can identify manage- rial, political, and legal layers (see Rosenbloom and Kravchuck, 2005, pp. 14 et. seq.). Many of the public administration recommendations, probably the vast majority, will be in the non-legal (managerial-political) sphere. Their strict legal regulation may lead to ineffectiveness. However, a general procedural basis for issuing recommendations within more or less traditional administra- tive agendas (e.g. the aforementioned cybersecurity recommendations) may be reasonable.24 Secondly, in areas where recommendations of public administration may be “abused” (e.g., the aforementioned area of regulation of disinformation) it seems desirable to have specific statutory frameworks for the exercise of public administration. These should allow public administration to act through standard legal means (forms) and not bypass this regulation (as it could be en- forced by administrative courts). The disadvantage of this solution, however, is the feasibility of ensuring the existence of these special statutory regula- tions, especially if they are socially unpopular. Finally, without the need for legislative changes, the situation can be ad- dressed by appropriate “sensitivity” of the administrative courts when re- viewing public administration recommendations (or other activities of a soft law nature). The administrative courts should pay attention to the context in which the recommendations are formulated. Specifically, whether it is a legitimate area of policy declarations or whether it is rather a de facto evasion of the rule of law (the performance of an activity that would normally have a statutory basis and be subject to ordinary judicial review). In the latter case, the courts should provide judicial protection, not protect administrative dis- cretion where it is not substantiated. The disadvantage of this solution is the independence of administrative courts and their reluctance to review such actions (e.g. for practical reasons – because they are overburdened, etc.). 5 Conclusion Public administration recommendations can be understood (in the continen- tal context) as a specific form of public administration activity or an activity that can be subsumed under the forms of public administration activity iden- tified by the theory of administrative law (e.g. German “real acts” and their equivalents in other jurisdictions or doctrine). These activities are generally non-binding and have no immediate legal effect. However, it cannot be said that they are legally irrelevant. They can serve as an instrument for the effec- tive pursuit of the objectives of public administration and, consequently, of public policies. There is certainly room, however, to distinguish between dif- 24 The Czech Code of Administrative Procedure (Article 154 et seq.) regulates such activities, albeit very briefly and generally. Central European Public Administration Review, Vol. 22, No. 2/2024 181 Tackling Disinformation Through Public Administration Recommendations – The Czech Experience ferent public administration recommendations. Some may be of considerable practical importance and some may not. For the first group, they should be seen as a genuine public administration activity, comparable (but not identi- cal) to other traditional forms of public administration delivery (typically ad- ministrative acts). As such, they may pose certain risks. Of course, not every recommendation by the public administration is problem- atic and the issue illustrated in this article is probably very uncommon. How- ever, the outlined mechanism of exercising public administration through rec- ommendations to a non-state actor, which subsequently performs a certain regulatory intervention towards the final addressee of state action, may have considerable potential in the “digital age” (especially in the context of state influence on social media networks or other digital platforms). In particular, it can be applied to the agenda of disinformation regulation (which is an agenda that may be necessary but at the same time carries serious risks of dispropor- tionality or outright abuse of public administration instruments). The problem is that the consistent application of this model somewhat de- constructs the rule of law, as it does not require an explicit statutory basis and potentially evades judicial review. Generally, under the rule of law, there should be basic enforceable limits to what the public administration can and cannot recommend. It is also probably a broader manifestation of the un- explored boundaries of public administration in the context of new tech- nologies and the “new (digital) public space” in general, where new powerful players are emerging alongside states, with who states may tend to negoti- ate with rather than to (as is usual in the “offline environment”) regulate them by law. It seems that the “new forms” of public administration (flexible, operative, quick) are typical for the digital environment, however, the traditionally con- servative administrative law (based on traditional administrative acts) usually cannot keep up with the speed of change in this area, which potentially poses risks in terms of the protection of individual rights (but also in terms of the protection of the public interest in case of non-functioning or inefficient reg- ulation). 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Oxford: Oxford University Press. Wakefield, J. (2007). The Right to Good Administration. New York: Kluwer Law International. 185 2591-2259 / This is an open access article under the CC-BY-SA license https://creativecommons.org/licenses/by-sa/4.0/ Rozsnyai, K. F. (2024). Regulating the Competence of Administrative Justice and the Public-Private Law Divide. Central European Public Administration Review, 22(2), pp. 185–205 DOI: 10.17573/cepar.2024.2.09 1.01 Original scientific article Regulating the Competence of Administrative Justice and the Public-Private Law Divide Krisztina F. Rozsnyai University ELTE Budapest, Hungary rozsnyaik@ajk.elte.hu https://orcid.org/0000-0002-1494-5051 Received: 1. 10. 2024 Revised: 3. 11. 2024 Accepted: 7. 11. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: The paper investigates the dichotomy between public and pri- vate law in terms of access to justice, especially the distribution of com- petences between various courts and tribunals. Design/Methodology/Approach: The study employs juridical analysis of normative texts and legal comparison. Findings: The continuous expansion of administrative justice calls for a more differentiated yet generalised regulation of access to justice. Academic Contribution to the Field: The analysis addresses policy op- tions regarding the distribution of competences between civil and ad- ministrative courts, as well as the potential establishment of specialised courts. Originality/Significance/Value: The analysis of regulatory approaches helps legislators meet the requirements of both timeliness and effective- ness of judicial protection, as well as handle the challenges of blending public and private law instruments to create a regulation that is able to provide effective judicial protection and consistency in case-law. Keywords: access to justice, administrative justice, differentiated distribution of competences, public-private law divide, specialised courts and tribunals JEL: K410 1 Introduction The division of public and private law has been a perennial topos of jurispru- dence since Roman law (Barber, 2005; Kanner, 1997). Much has it been ar- gued that this dichotomy has no real orienting and explanatory power (Har- Central European Public Administration Review, Vol. 22, No. 2/2024186 Krisztina F. Rozsnyai low, 1980) and should be regarded rather as a »genetic deficiency« (Jakab and Kirchmair, 2019). These arguments are in line with the very basic ency- clopaedic definition of dichotomy, which declares the pointlessness of this technique of classification: Dichotomy (from the Greek dicha, “separate”, and tomos, “to cut”) is a technical term for a form of logical division that consists of separating a class into two subclasses, one of which has and the other does not have a particular property or attribute. On the principle of contradiction, this division is both exhaustive and exclusive; there can be no overlapping, and no member of the original species or of the subordinate classes can be omitted. This method of classification, though formally accurate, is of little value in the exact sciences, partly because at each step one of the two classes can only be negatively characterized, and is usually an artificial, heterogeneous class...1 This definition is undoubtedly also true for dichotomies within the legal sys- tem. Usually, we ‘cut’ the legal system (or part of it) in two from the point of view of one of the branches or areas of law, thus forming the opposite category with a truly negative definition. Consequently, the demarcation will always be relative and cannot be used to describe the whole legal system. Within the legal system, the boundaries are often blurred, there are many ‘cross cutting’ areas of law and many interactions between them so that this dichotomy is really of little value. However, this does not necessarily mean that the dichotomy has no value at all. There are aspects that require this simplification, a schematic thinking. This is the case with the question of access to justice, at least where there is a separate administrative judiciary, which is the case in most European coun- tries. In this system of coordinates, the public/private dichotomy implies not only that public law and civil law disputes are distinct and separate entities, but also that there is no other category and that all disputes before the courts must be able to be classified in one of these two categories.2 It is therefore an important question how to classify a legal relationship and, in particular, whether the legislator should classify areas that could be described as hibrid and, if so, in which areas. Otherwise, the question of which court should hear a case is often left open, which can lead to a lack of judicial protection, or at least a reduction in its efficiency. This division also implies that the two qualities or parts are equal and that there is no dependence or subordination between them. The question of (le- gal) public policy is thus how legal policy deals with the dichotomy: to what extent does it take into account the above-mentioned requirements. On the one hand, does it manage to strike a balance between public law and private law, and on the other hand, does it manage to clearly classify each legal rela- tionship into one of the two parts. 1 Encyclopedia Britannica (August 6, 2019), https://www.britannica.com/science/dichotomy; accessed 30 September 2024. 2 As a further simplification, we now leave aside constitutional court procedures. Central European Public Administration Review, Vol. 22, No. 2/2024 187 Regulating the Competence of Administrative Justice and the Public-Private Law Divide Of course, we are immediately faced with a fundamental difficulty. For what is a private law dispute and what is a public law dispute? Can the definitions be codified? Should the distinction not be left entirely to the courts? In the case of private law, it is the civil courts; in the case of public law, it is the Consti- tutional Court and the administrative courts, whose procedures and practice can really give substance to these concepts. The creation of administrative justice has a decisive influence on the nature of this dichotomy. While there are quite a few countries where administra- tive justice has been established for centuries, there are others – especially those that experienced dictatorships after the Second World War – where this has not been the case. The presence or absence of administrative justice may explain the extent to which a balanced dichotomy can be achieved by creating a balanced situation, since in the absence of an effective and func- tioning administrative justice, it has often been necessary for the civil court to provide a kind of secondary legal protection in administrative disputes. And since the relationship between public law and private law is not con- stant, the legislator can also play a very important role at certain points. In the following, we would like to outline the main points of this dichotomy, albeit in an admittedly one-sided and generalised way, strictly from the ad- ministrative lawyer’s perspective. 2 Methods It is useful to compare the different techniques that have evolved in the field of the competence of administrative courts. Besides the comparative meth- od, the analysis of legal regulations and/or case-law on questions of mate- rial competence of courts is of great use. As there do not exist sufficiently detailed statistical data on the different types of cases handled by courts, the empirical analysis of the case law is unfortunately not possible and the significant differences in the national procedural systems would also distort the comparison of empirical data to such an extent that no sound conclusions could be drawn. 3 Equality of Civil and Administrative Jurisdiction Through Similar Styles in Regulation 3.1 Separate Codes on Administrative Court Procedures as the Source of Jurisdiction Rules Administrative justice emerged much later in time than civil justice and for a long time only with a very restricted competence both in regard of access to justice and of decision-making powers. The civil courts for a long time thus played an important role in providing protection against the administration or the state, as a sort of secondary judicial protection. Slowly, administra- tive justice was established in more and more European countries, in many of them even twice, as the rise of dictatorships usually led to the abolish- Central European Public Administration Review, Vol. 22, No. 2/2024188 Krisztina F. Rozsnyai ment of administrative justice. The role of administrative justice, being “the cornerstone in the vault of the Rechtsstaat” (Thoma, 1951, p. 9) has been recognised more and more and led to a strengthening of this institution in all aspects. The requirements of effective judicial protection are a solid basis for continuous development, adding new and new aspects and thus inducing legislative action. These developments naturally affect the framework within which judicial review is granted: the organisation and the procedural regula- tion of administrative court procedures. So it is no wonder, that nowadays there is a strong convergence between national administrative court systems and administrative court procedural laws (Sommermann, 2019). Despite the many national specificities, there are some features that can be considered as “common denominators”, partly as a result of this Europeanisation.3 On the one hand, there is a convergence on the organisational side, which is mainly a shift towards the German model, away from both the Anglo-Saxon monistic and the French dualistic administrative court systems (Rozsnyai, 2021b). On the other hand, the trend towards Europeanisation can be seen in the codifi- cation of procedural law. In most European countries there is a specific code or act governing admin- istrative litigation, whether or not there are separate administrative courts. This is the case eg. for Germany, Austria, France, the Netherlands, Spain, Por- tugal, Greece, Norway, Sweden, Finland, Poland, Czech Republic, Slovakia, Spain and Portugal, Serbia and since 2017 in Hungary, too. It is therefore now almost an axiom4 that administrative litigation is a sui generis category that cannot be fully governed by civil procedural rules. However, this emancipation process is a slow one, which is also due to the fact that the development of the administration itself and its law is a “maturation process” (della Cananea, 52 Rn. 16). Many connections with civil law continue to exist. Given the later development of administrative litigation, the most used regulative approach is to regulate only the sui generis rules to avoid the unnecessary proliferation of legal norms. These separate administrative pro- cedural codes regulate all the specific issues of court proceedings in admin- istrative matters. As there are many procedural institutions where there are or should be no differences and are common for all courts, it is not surprising that codes of administrative court procedure often refer back to civil proce- dure rules (CPR). This is the case, for example, in the German Verwaltungsger- ichtsordnung5 and the Portuguese Code of Administrative Justice,6 but there 3 However, this tendency is more global, as it is reflected by the model rules, cf. Perlingeiro and Sommermann (2014). Euro-American Model Code of Administrative Jurisdiction: English, French, German, Italian, Portuguese and Spanish Versions. Niterói: Editora da UFF, 2014, https://ssrn. com/abstract=2441582. 4 One of the rare European exceptions is Norway, where the monist system prevails probably because of the very low number of administrative disputes. 5 Article 173 VwGO (Verwaltungsgerichtsordnung) first sentence (applicability of the Courts’ Constitution Act and the Code of Civil Procedure): Soweit dieses Gesetz keine Bestimmungen über das Verfahren enthält, sind das Gerichtsverfassungsgesetz und die Zivilprozeßordnung einschließ- lich 278 Absatz 5 und 278a entsprechend anzuwenden, wenn die grundsätzlichen Unterschiede der beiden Verfahrensarten dies nicht ausschließen. 6 Artigo 1. Codigó de Processo nos Tribunais Administrativos [Direito aplicável] O processo nos tribunais administrativos rege-se pela presente lei, pelo Estatuto dos Tribunais Administrativos e Central European Public Administration Review, Vol. 22, No. 2/2024 189 Regulating the Competence of Administrative Justice and the Public-Private Law Divide is also a very close link in France between the jurisprudence of the admin- istrative and the ordinary courts on many procedural issues. Of course, this referral has to be handled with care, as the interpretation of different norms can vary in view of the very different procedural principles underlying the two different jurisdictions. This is usually stressed in the regulations, e.g. Art. 173 VwGO or Art. 6 Hungarian CACP. 3.2 Regulating the Scope of Judicial Review The existence of separate codes raises the question of the style of regulat- ing the scope of the different court procedures. Whereas it is for everyone natural, that civil procedural rules define their scope without further ado la- conically for civil law or private law disputes, this is by far not the case for ad- ministrative court procedures. This may be traced back to the originally very restricted possibility of judicial review, that was centred around the notion of administrative imperious or authoritative acts. These were regarded in quite many legal systems – mainly based on the Austrian tradition of administrative procedural law – the very tool for administrative action. However, in Europe we experience the continuous expansion of the powers of administrative courts and with this the scope of administrative disputes. This is due, on the one hand, to the fact that the instruments of public ad- ministration are becoming increasingly differentiated, and that state action is deemed to be necessary in more and more – often completely new – fields of life and, on the other hand, to the rise of the requirement of the rule of law, according to which the most effective control over public administration can be exercised by the judiciary (Sommermann, 2019). These two conditions make it though necessary to revisit the style of regulating the scope of judicial review, the way of codifying access to court in legal regulation. Should it not be formulated through a general rule, like in civil litigation? The Recommendation on judicial review against administrative acts Rec (2004) 20 of the Council of Ministers within the Council of Europe also points in this direction.7 According to its first principle, all administrative acts should be subject to judicial review. The recommendation uses the notion of admin- istrative act in a much broader sense than the customary notion, as by »ad- ministrative acts« are meant on the one hand both legal acts (individual and normative ones) and physical acts of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons; and on the other hand the concept of an administrative act also cov- ers situations where the public administration, although it would be obliged to initiate proceedings in a given case, refuses or fails to act. Similarily, the Code of Good Administration, the appendix to the Recommendation on good Fiscais e, supletivamente, pelo disposto na lei de processo civil, com as necessárias adaptaçőes. 7 Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts. https://rm.coe.int/09000016805db3f4; accessed 30 Septem- ber 2024. Central European Public Administration Review, Vol. 22, No. 2/2024190 Krisztina F. Rozsnyai administration8 states in its Article 22(1): “Private persons shall be entitled to seek, directly or by way of exception, a judicial review of an administrative decision which directly affects their rights and interests.” This Code extends its scope to all administrative relations of private persons (i.e. natural and le- gal persons) with public authorities. And broadly, “public authorities” shall be taken to mean: »a. any public law entity of any kind or at any level, including state, local and autonomous authorities, providing a public service or acting in the public interest; b. any private law entity exercising the prerogatives of a public authority responsible for providing a public service or acting in the public interest.«9 Though using the more narrow notion of public authority, the substantive definition seems to consider it necessary to provide for judi- cial review not only in authoritative relations, but in fact in all external rela- tions of the public administration, which encompasses the provision of public services, too. In the “archetypes”, the two dominant models of administrative justice, the competence of administrative courts is defined by a general rule. According to Art. 40 of the German Code of Administrative Procedure (Verwaltungsger- ichtsordnung), the administrative courts have jurisdiction in all disputes of public law, which are not of constitutional law nature, unless a federal law ex- pressly refers the dispute to another court. Article L-311-1 of the French Code of Administrative Court Procedure (Code de justice administrative) establish- es the general competence of the administrative courts (tribunaux adminis- tratifs) in administrative proceedings, with the exception of those which, in the interests of the subject-matter of the proceedings or the proper function- ing of the administration of justice, are transferred to another administrative court.10 According to French doctrine, in very simple terms, an administrative action is an action in which the defendant is a person governed by French pub- lic law and the subject-matter of the action is the exercise of public authority or the provision of a public service (Waline, 2010, pp. 558–572). In both cases, of course, there are questions of delimitation which are largely left to the courts (Bell and Lichère, 2022, pp. 128–129). Greek legislation, modelled originally on the French system (Gromitsaris, 2019, p. 1414), gives the administrative courts and the Council of State juris- diction over “administrative disputes”, which is interpreted in a similar way to French practice. Spanish administrative procedural law has developed an interesting set of rules, following substantively the German example, but nevertheless still ap- plying some enumerations for concretization. According to Article 106.1 of the Spanish Constitution, the courts are responsible for reviewing the legisla- tive power and the legality of administrative action and their proper exercise. 8 Appendix to Recommendation CM/Rec(2007)7 of the Committee of Ministers to member sta- tes on good administration. https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-good-admi- nistration/16809f007c; accessed 30 September 2024. 9 Article 1 Code of Good Administration. 10 The practice of the Conseil d‘État was affirmed by the law of 24 May 1872, which established that the Conseil d‘État was to hear such cases as administrative cases. Central European Public Administration Review, Vol. 22, No. 2/2024 191 Regulating the Competence of Administrative Justice and the Public-Private Law Divide This provision is the basis for Article 1 of the Spanish Code of Administrative Procedure, adopted in 1998, which states that the administrative courts have jurisdiction to hear actions brought against the activities of administrative bodies governed by administrative law or against general provisions below the level of law.11 Following the German doctrine, the term “actividad” has replaced the former concept of actos administrativos, i.e. administrative acts, to broaden protection to forms outside the administrative act, like con- tracts, realacts or general acts, as well as the failures to act (Fuentes i Gasó, 2005, pp. 87–88). The Hungarian legislator, inspired somewhat of the Spanish doctrine explain- ing the notion of actividad (Peñaranda Ramos, 2011), created a general rule around the notion of activity that combines three criteria. The subjective one is that the activity has to be subsumed to an administrative body (at least in its functional sense, ie. an entity or person performing administrative func- tions), the objective criteria is the action that has a legal effect, or its omis- sion. The third criterion is the regulation of the activity by administrative law in Section 4 of the Hungarian Code of Administrative Court Procedure (CACP). This more detailed regulation has the quality of successfully bridging the dog- matic gap that exists between German and Hungarian administrative judges and preserving the flexibility and generality of the provision (Rozsnyai, 2019, pp. 9–10). While the mere term “administrative legal relationship” would not really have helped to give substance to the general rule, breaking down its essence into these three requirements can help to develop a sound jurispru- dence that can help to ensure seamless and thus effective judicial protection in this respect. This does not mean that explanatory lists would not be neces- sary or at least of use, so the Hungarian regulation also uses them thus in a different regulatory style than does the Spanish model. Portugal also applies a regulation which, because of its very detailed nature, appears prima facie to be an enumeration, but its notions are also very general. Although the inflexibility of the regulation of the scope by an enumeration makes it somewhat impractical, the legislator often sticks to it. The use of enumeration does not make it easier for administrative courts to decide on jurisdiction, since the definition of each category of cases is subject to uncer- tainties, as would be the case with a general rule. Moreover, the enumeration makes the rules very cumbersome. However, it may be regarded as a sort of path dependence. This is due to the fact that as the establishment of admin- istrative justice always occurred later than that of civil or ordinary justice, it was initially regarded as an exceptional way of access to justice, and not as an option that would be equal to access to ordinary courts. The tendency to prefer enumerations is especially remarkable in countries where there was an early first codification of general administrative proce- dural law. This is even more the case if administrative justice was abolished for a shorter or longer period and the public-private division was therefore non-existent in the judiciary. This is typically – but not exclusively – the case in 11 https://www.boe.es/eli/es/l/1998/07/13/29 accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024192 Krisztina F. Rozsnyai many Central European countries of the former Austro-Hungarian Monarchy (Potěšil et al., 2021). These countries, together with other former post-Soviet states, are still in a transition phase from the regulation of administrative dis- putes as a special civil procedure, a common feature of socialist civil procedur- al law. Thus, in many European countries, in addition to or instead of a general rule, we find lists of competences or only rules of access to justice against ad- ministrative acts in the narrow sense, however, formulated in a general man- ner to appear as a general rule – this was the case in Hungary until 2018, too. Adhering to the previously mentioned first group, in Austria, the competence of administrative courts is traditionally regulated by enumeration. The admin- istrative courts of first instance rule on complaints under Article 130 of the Federal Constitution12 in the following cases: 1. unlawfulness of the decision of the administrative authority 2. unlawfulness of the exercise of direct authority to use command and coer- cive powers 3. breach of the obligation to take a decision by an administrative authority (failure to act) 4. instructions under Article 81a(4) of the Constitution (instructions to schools from the professional management side). The Constitution also empowers the legislature of the Länder to confer by law additional powers of decision on administrative courts in the following cases: 1. complaints against the unlawfulness of the conduct of public authorities in the implementation of laws 2. complaints against the unlawfulness of the conduct of the contracting authority in public procurement cases 3. disputes relating to the civil service of public servants. In Liechtenstein, a country very much connected to Austria, the enumeration is a bit broader, where “[A] final measure (administrative act) issued by the government, its president, special committees established in place of the government or other officials, and all other decisions (administrative orders) and decisions which may be challenged under Chapter Two or Chapter Three, shall be subject to administrative complaint as a remedy before an adminis- trative court, unless a separate remedy exists.”13 The mere juxtaposition of the two types of regulation speaks in favour of reg- ulation by means of a general clause. One of its great advantages is its flex- ibility, which allows it to follow the development of administrative law. In this way, legal protection against the administration can be truly effective, since 12 Federal Constitution Act, BGBl. Nr. 1/1930; the quoted paragraphs have been amended by the Verwaltungsgerichtsbarkeitnovelle 2012, adopted by the Austrian legislature on 30 May 2012. 13 Gesetz über die allgemeine Landesverwaltungspflege v. 21. April 1922, [B. Die Verwaltungs- beschwerde (Rekurs)], 90. Central European Public Administration Review, Vol. 22, No. 2/2024 193 Regulating the Competence of Administrative Justice and the Public-Private Law Divide judicial control can be exercised over all administrative legal instruments. In deciding what constitutes an administrative dispute, the judiciary can rely on the results of administrative jurisprudence. We have to admit that these lists are becoming more and more general, which can be seen as a sign of an approach that may soon lead to a recodification of the rule on the scope of administrative litigation in these countries. A good example of this “merg- ing” is Portugal, whose solution is somewhat between the two models, as mentioned above. 4 Differentiated Allocation of Competences within the Administrative Judiciary The general rule is only one element of the system of competence regulation, it is equally important to ensure an appropriate distribution of cases at first instance between the different levels of court, i.e. the use of differentiated division of jurisdiction, and even the creation of separate special courts can be an option to grant effective protection in a timely manner. 4.1 Allocation of First Instance Competences on Higher or Highest Courts Differentiated allocation of material competences is a well-established prac- tice in civil and criminal matters. In administrative litigation, for a number of reasons, it was only towards the end of the 20th century that the legislature began to apply this technique to administrative proceedings. One reason for this delay is the explosive development of administrative law in recent dec- ades, as mentioned above. Another reason is that the organisational frame- work for administrative justice in general developed much later than that of ordinary courts. In France, the administrative tribunals have general jurisdiction to hear ad- ministrative cases, but there are cases in which the Conseil d’État retained ju- risdiction at first instance in 1953. This list has since been both extended and reduced. It includes, on the one hand, cases relating to changes of name and the adjudication of electoral disputes. It has full jurisdiction to hear cases chal- lenging the decisions of the regulatory authorities, cases relating to decrees of the President of the Republic, normative decisions, circulars and memo- randa of principle issued by ministers and other central administrative bodies, and cases relating to the selection and disciplinary matters of government officials (Broyelle, 2022, p. 31). The Spanish Code of Civil Procedure of 1998 also differentiates the jurisdic- tion of the administrative courts. As there are several higher courts, jurisdic- tion is also divided between them. The Administrative Chamber of the Su- preme Court of Justice rules in the first and last instance on appeals against decisions and measures relating to the Council of Ministers and Government Deputies, the Council of the Supreme Court, the Senate, the Constitutional Court, the Court of Auditors, the staff, administration and management of Central European Public Administration Review, Vol. 22, No. 2/2024194 Krisztina F. Rozsnyai the Office of the Parliamentary Commissioner. It also rules on certain actions relating to the electoral process and on appeals against decisions and actions of the Central Electoral Board. The Audiencia Nacional rules at first instance in the following cases: review of decisions and acts of ministers and secretaries of state in general and certain acts of public office (creation and termination of legal status); disputes concerning agreements between public bodies; re- view of tax decisions of the Minister of Economy and the Central Tax Court; decisions and acts of the Anti-Terrorism Commission. The Administrative Senate of the Supreme Court rules on certain decisions of municipalities and autonomous communities and their general regulations; decisions and meas- ures of executive bodies of legislative bodies and autonomous institutions, such as the Court of Audit and the Office of the Parliamentary Commissioner, concerning personnel, administration and management; decisions of regional and local administrative courts terminating the enforcement of law; decisions of the Central Tax Tribunal in the review of decisions on the transfer of taxes; in disputes relating to local and regional electoral procedures, in disputes relating to agreements between authorities at the level of the Autonomous Communities, and in decisions and measures of central public administration bodies below ministerial level relating to personnel, administration and man- agement; in the review of decisions and measures of the competition authori- ties of the Autonomous Communities. They also have jurisdiction in certain public procurement cases (associations of autonomous communities and mu- nicipalities) and in appeals against decisions of regional administrative courts on administrative contracts. According to the Portuguese Administrative and Fiscal Courts Act, the Admin- istrative Litigation Section of the Supreme Administrative Court has jurisdic- tion in the following cases: administrative acts or omissions of certain persons and bodies: the President of the Republic, Parliament and its Speaker, the Government, the Prime Minister, the Constitutional Court and its President, the Supreme Administrative Court and its President, the Court of Auditors and its President, the Supreme Military Court and its President, the National Defence Council, the Public Prosecutor, the Supreme Council of the Public Prosecutor’s Office. The Supreme Administrative Court also has jurisdiction over electoral disputes, as well as over the interim measures required in such disputes and the measures necessary for the execution of its rulings.14 The Greek Code of Administrative Procedure divides jurisdiction between three levels of administrative courts. The courts of appeal have jurisdiction at first instance, for example in disputes concerning administrative contracts, municipal elections, administrative fines imposed by certain central adminis- trative bodies exceeding a certain sum. (Gromitsaris, 2019, p. 1413) The Coun- cil of State acts at first and last instance in relation to so-called implementing acts of administrative bodies and in certain civil service disputes according to the Constitution.15 14 Estatuto dos Tribunais Administrativos e Fiscais, Art. 4-5. 15 http://www.aca-europe.eu/colloquia/1998/greece.pdf;, accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024 195 Regulating the Competence of Administrative Justice and the Public-Private Law Divide Under the Polish legislation, the Higher Administrative Court has first and last instance jurisdiction in certain cases. These are competence disputes between different municipal bodies and between municipalities and central administrative bodies. This is coupled with disciplinary proceedings against administrative judges, objections to the delay in proceedings and certain other disciplinary cases. The Czech Supreme Administrative Court also has jurisdiction at first instance, such as in electoral proceedings and proceedings relating to political parties.16 The German system has also been known for its differentiated division of powers since the 1990s. Thus, the Higher Administrative Courts of the Länder have first instance jurisdiction to hear administrative disputes relating to major technical investments (construction and operation of nuclear power plants, waste disposal, high-voltage power lines, railway lines, federal water- way and road networks). The Federal Administrative Court is the court of first and last instance in non-constitutional public law disputes between federal and Land authorities and between the Länder; in disputes concerning the provision of federal information; in proceedings concerning decisions of the Federal Insurance Supervisory Authority; and in disputes concerning road and public airport investments in some Länder. In recent years, other first instance competences have been added (Mann, 2023, p. 88). In the Netherlands, there are also cases before a higher administrative court in a single instance. The Raad van State has jurisdiction in land-use planning and environmental proceedings, the Social Security Court of Appeal in rela- tion to special pension benefits and compensation for war victims, and the Administrative Court of Trade and Industry in reviewing decisions of regula- tory authorities.17 In Finland, appeals against decisions of certain authorities can be brought directly to the Supreme Administrative Court: these are the Government and the Ministries, the Åland authorities, the ecclesiastical authorities. There are also special statutory cases (taxation, social security, agricultural law, aliens law) in which this court also has exclusive jurisdiction, irrespective of the body responsible. 4.2 Specialised Administrative Tribunals It should not be overlooked that there is a certain organisational differentia- tion within administrative justice, too. In many places, financial adjudication, which is generally regarded as a branch of administrative adjudication, has been established at the same time as – if not before – administrative adjudi- cation, and the two areas of law were already separated in the 19th century (Stipta, 2006). In Germany, for example, there is a separate administrative fis- cal justice system, with the Finanzgerichte at the level of the Länder, and the 16 http://www.aca-europe.eu/en/eurtour/i/countries/czech/czech_en.pdf, accessed 30 Septem- ber 2024. 17 https://www.aca-europe.eu/en/eurtour/i/countries/netherlands/netherlands_en.pdf, p. 5, ac- cessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024196 Krisztina F. Rozsnyai Bundesfinanzhof at the federal level, responsible for the judicial review of all administrative cases relating to taxes and other duties. In Portugal, there are separate administrative and finance courts of first instance, with separate finance colleges operating alongside the administrative colleges in the higher courts. In the Netherlands, the courts of first instance also hear administrative tax cases, but at the second level there have been tax colleges in the courts of appeal since 2005. Austria also has on one instance a separate financial federal court, the Bundesfinanzgericht. To overcome the dichotomy, there are even such special judicial forums that hear both administrative and civil disputes. For example, in many cases sepa- rate social courts are set up to hear social cases, where this separate court, in addition to social security cases, decides on other issues in the field of so- cial law. Such social courts operate at two levels in Germany and at one level in the Netherlands. In addition, Finland has a Social Insurance Court (Vacu- utusoiekus), which is the court of first instance in social security cases (Kul- la, 2019, p. 1214). Similarly, Norway has a separate National Pensions Court which acts at first instance. In addition to social and tax matters, cases of economic administration have recently been stretching the boundaries of administrative adjudication in many cases. The rise of the regulatory authorities has not only reorganised administrative organisation law but has also had a strong impact on admin- istrative procedural law in the broader sense. In the UK, a specialist judicial body with cross-disciplinary expertise in law, economics, business and ac- countancy has been set up whose function is to hear and decide cases in- volving competition or economic regulatory issues.18 In the Netherlands, the Administrative Court for Trade and Industry is responsible for economic-ad- ministrative matters, from where there is a narrow range of recourse to the Hoghe Raad, which has cassation powers. Spain also has a separate central administrative-economic tribunal, whose decisions can be appealed to the Audencia Nacional. In Sweden, appeals against decisions of the Patent Office in patent, trademark, copyright, design and business name cases, and the similar plant-type protection cases of the Agricultural Council can be brought before the Patent Court (Patentbesvärsrätten). This court is on the same lev- el as the courts of first instance and its decisions can be appealed to the Hög- sta Förvaltningsdomstolen. In Finland, administrative cases in the fields of trade, competition and public procurement are heard by the Markkinaoikeus (Market Court), from which a differentiated appeal is possible: usually the Supreme Administrative Court of Finland (Korkein hallinto-oikeus, KOH) acts as second instance, except in commercial cases, where the Regional Admin- istrative Courts act (Kulla, 2019, p. 1212). In Finland, there are also tribunals for agricultural subsidies, patent and trademark cases, whose decisions can also be appealed to the KOH. There is also a current “trend towards autonomy” in the area of asylum cas- es, which takes different shapes. In France, a separate asylum court (Cour 18 Competition Appeals Tribunal, www.catribunal.org.uk, accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024 197 Regulating the Competence of Administrative Justice and the Public-Private Law Divide Nationale du Droit de l’Asyle)19 has been set up under the Conseil d’État. Ex- clusive territorial or material competences are also used instead of setting up fully separate special courts. In Sweden for example, since 2006, there are separate Migration Courts (Migrationsdomstolen). They are responsible for reviewing decisions taken by the Swedish Immigration Service. They are attached to a separate appeal court (Migrationsöverdomstolen) in Stock- holm, from which appeals can only be lodged to the Högsta förvaltnings- domstolen in exceptional cases (Wenander, 2019, p. 1182). In the Nether- lands, immigration and asylum matters fall within the exclusive competence of the Council of State. There is also a counterdevelopment, i.e. the merging of different special courts into general administrative courts. Austria is in a special position in this regard. Until 2014, there was a separate Asylgerichtshof (Asylum Court) in Austria whose decisions could only be reviewed by the Constitutional Court. However, the great reform, by which Austria set up first instance ad- ministrative courts led to its abolishment. Similarily, there are tendencies of reintegrating some tribunals to the administrative regional courts in Finland (Kulla, 2019, p. 1214). 5 Public Policy Choices and the Public-Private Divide With the increasing amalgamation of public and private law in the legal sys- tems throughout Europe, there are of course more and more areas where the classification of certain disputes can be both administrative and civil, or where because of the »privatisation« of public law or the »publicisation« of private law, the qualification is not that evident. In the case of a general clause, the question of conflicts of jurisdiction between ordinary and administrative courts may therefore arise quite often. As the development of administrative law inevitably shifts the dividing line drawn by case law and theory, conflicts of jurisdiction will arise even in countries with a long tradition of administrative jurisdiction, let alone those with recently established administrative courts. In French practice, for example, the Tribunal des conflits20 is not without work even after such a long time. This is also due to the fact that the concept of public service has lost some of its explanatory power in the context of devel- opments in recent decades (Waline, 2010, pp. 539–572). Unfortunately, this question has to be left aside for the moment to focus on what regulation can do to avoid conflicts of competence and uncertainties of access. There are, of course, different ways of dealing with these issues, which may lead to diametrically opposed decisions, as many factors – both legal and pa- ralegal – influence these decisions. We can divide the possible solutions into two groups: those that aim to create synergies and combine public and pri- vate law expertise, and others where there is more of a separation of the two 19 www.cnda.fr; accessed 30 September 2024. 20 The Tribunal des conflits is a parity tribunal chaired by the Minister of Justice http://www. tribunal-des-conflits.fr/; accessed 30 September 2024. Central European Public Administration Review, Vol. 22, No. 2/2024198 Krisztina F. Rozsnyai spheres. Latter obviously requires much less regulatory effort, so “combina- torial” solutions are quite rare. 5.1 Cutting the Gordian Knot by Policy Decisions – Separation As it was mentioned, legislators often add to the general rule lists of matters in order to orientate judges. These enumerations can both have a positive or a negative direction. The negative lists contain matters excluded from the ju- risdiction of administrative tribunals. Such cases may be those which the leg- islator expressly refers to the jurisdiction of the civil, criminal or social courts, even if they relate to the functioning of the public administration. Another category is made up of cases that could fall under the jurisdiction of both administrative and ordinary courts. There might also be a category for cases excluded from judicial control altogether, such as e. g. political questions. As an example of enumerations in regulation, section 3 of the Spanish Code of Administrative Procedure lists the cases that cannot be brought before the administrative courts. Similarly, there is a list of cases excluded from the juris- diction of the Portuguese administrative courts. These are acts carried out in the exercise of political and legislative functions, acts carried out in the course of law enforcement, and the administrative courts have no jurisdiction to hear actions for liability for errors of law by courts belonging to other branches of the judiciary, nor to review decisions of the judicial administration, nor to hear disputes concerning employment contracts concluded by public bodies which do not establish a public service relationship. Neither military disciplinary mat- ters, nor disputes over jurisdiction between the courts and the administration or between administrative bodies, nor direct or indirect appeals against the fiscal legislation of certain historical territories fall within the jurisdiction of the administrative courts. The Hungarian regulation also uses this technique and lists types of administrative acts that would not be contestable before a court even in the absence of such a regulation, so it is rather a “safety play” of the legislator. These are disputes relating to political issues, intra-adminis- trative relations and so-called ancillary administrative acts. Of course, special laws can override these exceptions by expressly granting access to the courts, as is the case with public service disputes arising in the context of intra-ad- ministrative relations, or with some administrative procedural decisions in the context of administrative proceedings (e.g. decisions on procedural fines or the suspension of a procedure). The positive lists are usually of greater importance in the public-private di- vide as they clarify whether certain activities should be recognised as admin- istrative ones. This can be particularly useful in areas where the nature of disputes, their subsumption under administrative law, civil law or labour law is disputed. Such an often mentioned categorys are the disputes connected to civil service. It is common practice in Europe that disputes (including re- lated compensation claims) between public employers and civil servants are subject to administrative judicial review. This is the case in Germany, Austria, France, Spain, Portugal, Greece, the Netherlands, Finland and Spain. They do Central European Public Administration Review, Vol. 22, No. 2/2024 199 Regulating the Competence of Administrative Justice and the Public-Private Law Divide not belong into the competence of administrative courts in Sweden and Po- land, and this was the case in Hungary until recently. In the monist countries (e.g. Norway) this question does, of course, not arise. There are more complicated areas where a simple list of case types is not really helpful. Here, either procedural definitions can guide judges, or addi- tional substantive legislation is needed. Thus, one regulatory strategy may be to provide definitions that can be used to clarify the nature of disputes and the type of access granted. This method of regulation is sometimes used within or alongside enumerations. Such a field are e.g. administrative con- tracts, where in many countries, uncertainties reign the field. Those disputes over public law contracts which are defined as administrative ones, are de- cided by administrative courts in many countries of Europe. This is the case in Germany, France, the Netherlands, Finland, Spain, Portugal and Greece. This also means, that in most countries contracts are regarded as civil law instru- ments, as long as there is no special rule on them. So e.g. in Sweden the civil courts have competence for administrative contracts except for disputes re- lating to procedures prior to the conclusion of public contracts. The policy nature of this decision is maybe best illustrated by public procurement con- tracts and contracts on state subsidies where the qualification of contracts is quite diverse (Gönczi & Hoffman, 2023). Here we already see the second type of regulation, namely the use of special rules on access to court in sectoral legislation, in German “Sonderzuweisungen”, whereby the legislator explicitly allocates disputes to either civil or administrative courts without going into dogmatic questions (Schröder, 2024, pp. 101–108). As a third way, there are also interesting techniques to “convert” a dispute over an administrative contract into a contestation action, so that these quali- fication issues do not arise. This is for example the case in the Czech Republic by providing an inner-administrative remedy in the case of disputes over con- tracts. Subsequently, the decision deciding on the remedy will be susceptible for judicial review. This technique – also applied in connection to silence of administration with the negative fiction, eg. in France (Deguergue, 2015) – is both able to set aside the problems resulting from an enumerative scope of administrative justice and the qualification problems of contracts. In Hungary, the code of administrative court procedure sets up a dual sys- tem using both the first and the second regulatory technique. One pillar is the formal definition given in the CACP that defines agreements on public tasks between Hungarian administrative organs as administrative contracts. The other pillar is a “renvoi” to special legislation: the definition adds that further administrative contracts are those that are qualified as such in legisla- tion. Thus, this rule is conferring a public policy choice of court on the sectoral legislator. This is very much the effect of the very strong private law domi- nance which clings to the view that contracts can only be of civil law nature (Kisfaludi, 2018, p. 801). Central European Public Administration Review, Vol. 22, No. 2/2024200 Krisztina F. Rozsnyai 5.2 Cutting the Gordian Knot by Policy Decisions – Combining Administrative and Civil Law Besides the separation and the clinging to the dichotomy, there are more so- phisticated, »combinatorial« solutions, as eg. the already mentioned special- ised courts set up for both civil and administrative matters. As the merging of public and private law is maybe the most intensive in market regulation, this seems to be a solution at hand in certain fields of economic administra- tion, eg. in competition law or in commercial law. Not seldom, not only civil law and public law are combined to such solutions, but also other non-legal expertise. Besides economics, environmental protection seems to be such a field where courts have hard times to deal with scientific evidence. Environ- mental courts have been set up e.g. in Finland and Sweden, where legal and non-legal expertise are both constituting elements. These courts belong in Sweden to the ordinary justice, but they proceed in both administative and civil law disputes connected to the environment, as well as rural space and planning (Wenander, 2019, p. 1182). Patent tribunals were transformed and merged into the ordinary court system, as well (Wenander, 2019, p. 1186). It can also be a policy decision to combine administrative and civil procedures and create “combinatorial” solutions. Such a case constitute eg. in Hungary the protection-of-possession proceedings that can be initialised in connection with questions of fact within a year before local government officals in an administrative procedure, and only if this procedure is not bringing relief or is not possible, should the claimant turn to a civil court. The same model is ap- plied in Hungary to remedies in public procurement procedures. The combination of criminal and civil court procedure could serve as a model for combining administrative and civil adjudication, too. One such example is the so-called adhesive procedure developed in Hungary in criminal court pro- ceedings. It wests criminal courts – besides the criminal competences – with the power to award monetary compensation on the basis of civil law if the court sees the question fit for a decision based on the claim of the victim. This is only a possibility for the court, not an obligation. If it decides on the claim, the timeliness of awarding compensation will more likely be granted than by an additional sequential civil procedure. What makes this solution complicat- ed is that in the private law part of the judgment, the same remedies must be available as against a similar decision of a civil court. It would depend on the will of both the claimant and the judge whether such a decision could be taken in the procedure. Another way of combining administrative and civil court procedures is the Austrian way of regulating state liability claims (see infra), or for example the so-called unified action in Hungarian procurement law that has been a way of cutting the Gordian knot in regard of some contes- tation actions against public procurement contracts, where the administra- tive court could decide both on administrative and private law questions in connection with such contracts. Central European Public Administration Review, Vol. 22, No. 2/2024 201 Regulating the Competence of Administrative Justice and the Public-Private Law Divide 5.3 State Liability as a Longstanding Problem Field of the Public-Private Dichotomy in the Light of the Requirement of Effective Judicial Protection State liability cases constitute a field, where the allocation of disputes is very much dependent on policy decisions. There are two main models used in Eu- rope. In the model based on the German concept, damage caused in the exer- cise of public authority is understood as a special form of tort liability (Nagy, 2010, p. 182). The German model is followed e. g. in Hungary, Sweden, Finland and Poland. In the French administrative court model, the question of dam- age caused by administrative action falls generally within the competence of the administrative court following the Blanco judgment.21 This is the case in France, the Netherlands, Greece, Spain and Portugal. In this model, deciding on a claim for damages upon a contestation action is possible. By comparing the two models, the sequential nature of the two procedures is a great disadvantage in the German model. In the light of the requirement of timeliness, the necessity of having first an administrative court procedure to decide on the illegality of administrative action, and afterwards a second court procedure before the ordinary court to grant compensation, the solu- tion hardly complies with the requirements of neither Art 6 European Conven- tion of Human Rights nor with Art 47 of the Charter of Fundamental Rights of the EU. With the broadening of the scope of judicial review, the positive fea- ture of the German model, namely that state liability (and privacy) actions can provide for a sort of secondary or substitute judicial legal protection in areas where no legal protection is provided for by an administrative court (Hoffman, 2024), fades quickly away. In fact, one of the advantages of the monist system lies in this, as these two issues can often be decided in one action. Moreover, in some cases, the award of damages can also remedy the illegality of the admin- istrative act. But this is even more true for the fully dualist (French) model of the “procedure en plein contentieux”. The functions of administrative liability beyond reparation and prevention (control, sanctioning, protection of inter- ests) can even more effectively be exercised by administrative courts. They also contribute to a clearer doctrine of administrative liability. An intermediary solution between the German and the French model is the combination of the civil and the administrative court procedure, to be found e.g. in Austrian procedural law: here, the ordinary court in tort cases must, be- fore deciding on the question of the illegality, seek the opinion of the admin- istrative court on the illegality of the administrative action (Leskovar, 2011). Such solutions bring a lot of synergy into the system. 6 Conclusions As administrative justice keeps evolving, the questions of jurisdiction and competence keep being raised and the regulation of these issues needs con- 21 The judgment, which is considered one of the foundational decisions of French administrative justice, was handed down by the Tribunal des conflits on 8 February 1873. Central European Public Administration Review, Vol. 22, No. 2/2024202 Krisztina F. Rozsnyai stant development. The requirements of effective judicial protection, both from the aspect of a seamless protection and from timeliness need efficient regulations which are more and more sophisticated. The broadening of administrative justice necessitates a general regulation of the scope of judicial review. This general clause can be accompanied with pos- itive and negative lists to help the development of a sound case-law and the right balance between administrative and public justice, as well as to avoid conflicts of competence. An actual phenomenon is the proliferation of possibilities to get legal protec- tion. However, if there are too many ways of granting judicial protection, that can threaten the effectivity of judicial protection. Due to the confluence of public law and private law, there are more and more areas of the legal system where access to court is granted both by civil and by administrative law. The mixing of private and public law elements has led to hybrid formations, which need careful consideration when addressing the questions of the scopes of the two procedural codes, as well as when codifying definitions and rules on judicial protection. For example, the issue of various environmental emissions as nuisances of the enjoyment of property22 or the private use of public space (Rozsnyai, 2021a) can be disputed both by administrative and civil claims. The possibility of parallel legal procedures is not a problem in itself however, it can threaten the effectiveness of judicial protection if these parallel possibili- ties are not sufficiently coordinated.23 The legislator should thus coordinate them with particular care, since the unity of the law can significantly be jeop- ardised by the possibility of parallel enforcement. We cannot end without acknowledging that, even in terms of the judiciary, there are areas where thinking in dichotomies is not only of little value, but actually harmful, especially when it results in providing parallel possibilities of judicial protection before both administrative and civil courts without the careful coordination of these procedures. The legislator needs to ad- dress these “entanglements”. Rather than parallel routes, it is necessary to consider which court is better placed to hear a particular issue and take the necessary policy decisions. Developing combinatory solutions, where both administrative and civil justice and expertise can play a part, are often a more adequate solution to the hybrid legal institutions that are being developed, than clinging to the outdated dichotomy of civil and administrative law. In- deed, it is even possible, ad absurdum, that the civil court will act according to administrative rules and the administrative court according to civil proce- dural rules. 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Remedies Against the Different Decisions on Social Care Services in Hungary István Hoffman Eötvös Loránd University (Budapest), Faculty of Law, Hungary Centre for Social Sciences, Institute for Legal Studies, Hungary Maria Curie-Skłodowska University in Lublin, Faculty of Law and Public Administration, Poland hoffman.istvan@ajk.elte.hu http://orcid.org /0000-0002-6394-1516 Received: 29. 9. 2024 Revised: 24. 10. 2024 Accepted: 29. 10. 2024 Published: 27. 11. 2024 ABSTRACT: Purpose: The paper examines the multi-layered remedy system in social care services in Hungary. It first analyses remedies related to the obli- gation of public service provision, especially remedies against normative tools for public service provision (such as decrees on fees and service standards) and the omission of duties by public bodies obliged to per- form these services. A secondary focus is on remedies against the deci- sions and omissions by service provider institutions. Design and Approach: Hungarian legislation interprets social care ser- vices as legal relationships governed by private law with partial public law regulation. The public remedy against the decisions of the service providers is complaints, which are governed by sector-specific (pub- lic) regulations. The research examines the remedy system using legal study methods based on dogmatic analysis and involves an examination of judicial practice, namely Hungarian courts decisions on major public law remedies. Findings: Based on dogmatic and empirical analysis, the study reveals that Hungarian judicial practice has interpreted public law remedies, specifically complaints, in various ways. Following an amendment of le- gal regulation, the civil law-based interpretation now prevails. Although this practice has been consolidated, tensions can be observed, especially in the case of omissions. Practical implications: The paper suggests a legislative solution to miti- gate these tensions, recommending that decisions establishing social care services be formalised as public decisions. Hoffman, I. (2024). Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary. Central European Public Administration Review, 22(2), pp. 207–223 Central European Public Administration Review, Vol. 22, No. 2/2024208 István Hoffman Originality: The paper is based on a dogmatic analysis of the social care remedy system and, as a new element, contains an in-depth analysis of the Hungarian judicial practice on this issue. Keywords: administrative law, Hungary, litigation, private law, public law, remedies, social care services JEL: K41 1 Introduction The emergence of the welfare state coincided with the development of the modern state, and today all developed states consider themselves welfare states (Krémer, 2009). Social administration plays an important role in all welfare state models. The role of personal social benefits in welfare systems has increased in response to the challenges of recent decades, particularly in ageing societies. In many respects, these benefits are linked to care services previously provided on a private law basis, which have grown out of church care, charity and private contract-based care. With the emergence of welfare states, the organisation of services by the state (both public and municipal) has become more important, and the public organisation of these services has therefore also strengthened the public law nature of these benefits. However, the private law roots remained strong, creating a specific situation in relation to the review of decisions taken in the field of personal social care. In the case of other public services of personal nature, a mixed legal situation has developed in this area, where private law and public law elements are pre- sent simultaneously (Maurer and Waldhoff, 2020). Thus, the remedies against the decision of the care institution have a specific nature as well: they are on the crossroad of the private and public procedures. The Hungarian legislation and judicial practice are analysed by this paper. Hungary has a continental, civil law legal system and a long tradition of public services which are organ- ised by the institutions of the public administration (Nagy, 2019). Therefore, the case of Hungary shows the challenges of this Janus-faced phenomenon in a continental (civil law) legal system. Even the challenges of the Democratic Transition and the state-based public service provisions can be observed by the examination of this system. The approach of the Hungarian legislation and legal practice on public service provision remedies has been similar to the Eastern Central European countries (Szikra, 2014). Therefore, the analysis of this system could show the major elements of the public service provision systems of the broader region, the Eastern Central European Countries. 2 Methods In the course of the analysis, I applied jurisprudential methods, which mainly meant the analysis of the dogmatic framework of the regulation, thus I fo- cused on the traditional regulatory analysis and I wanted to place the Hun- garian provisions in a taxonomic way. In this context, I analysed the specific Central European Public Administration Review, Vol. 22, No. 2/2024 209 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary system of remedies for personal services and classified the types of remedies from a dogmatic point of view. However, there as it can be seen later there are different forms of formal and informal control mechanisms (Hungler and Pozsár-Szentmiklósy, 2023), my analysis will focus on those remedies, which can be reviewed by the courts. In addition to the above dogmatic analysis, I have also paid particular atten- tion to the analysis of case law. In the research, a total of 81 decisions were gathered from the publicly available database of the Hungarian court system. Judgments were accessed from “Bírósági Határozatok Gyűjteménye” (Col- lection of Court Decisions, hereinafter CCD) based on two search criteria: 1. Judgment contains reference to either the current or the previous Act III of 1993 on Social Administration and Social Care (hereinafter: Social Care Act, SCA) AND 2. Judgment contains at least one mentioning of the term “panasz” (complaint). Judgments not fitting these criteria were included if they were issued in a lawsuit where the higher- or lower-instance decision did fit the criteria. It should be mentioned that the majority of the cases are available at CCD. According to Act CLXI of 2011 on the organization and administration of the courts, CCD contains all judgments of the Curia, the Supreme Court of Hungary, the final judgments of the five Courts of Appeals, the final judgment of the county courts in cases on the judicial review of administrative decisions, and the first- and second-instance cases on which the Curia and the Court of Appeal cases are based. As the cases on privacy and the judicial review of ad- ministrative bodies belong to the competences of the county courts, majority of these cases are accessible at CCD. Cases concerning elections or referenda were excluded by default. The methodology of this research draws on lessons learned from the research design of a previous research about guardianship cases in Hungary (Kiss et al., 2021). My hypothesis was, that the number of the analysed cases could be a larger and a detailed statistical analysis based on the large number of samples could be conducted. The background of the hypothesis was the large number of the recipients of these care services (see Figure 1). Central European Public Administration Review, Vol. 22, No. 2/2024210 István Hoffman Figure 1: Recipients of long-term and temporary (up to 1 year-long) residential social care in Hungary from 2000 to 2023 62862 69075 73411 76849 77516 71441 76054 9321 9387 11033 13251 13115 10899 10894 0 10000 20000 30000 40000 50000 60000 70000 80000 90000 100000 2000 2004 2008 2012 2016 2020 2023 Recipients of temporary (up to 1 year) residential social care services Recipients of permanent residential social care services Source of the data: KSH 2024 According to the literature, however the willingness to start a court proce- dure in social care cases are lower than in other cases (Horowitz, 1977), mainly economic public services, but the large number of the recipients (according to the data of KSH 2024, around 0,91% of the whole Hungarian population received residential social care services) could justify a larger number of court proceedings. According to the official statistical data of the National Judicial Office, the number of the number of litigation cases received by the courts was 1 175 862 in 2023 (OBH, 2023). As I have mentioned, the complaint has been the major remedy in social care service cases. Based on these data and background, I expected a larger number of court decisions. First of all, it should be mentioned, that the main hypothesis and the pos- sibility of the application of the quantitative statistical analysis of the court decision was not approved by my empirical research. However, it was men- tioned by the literature, that the legal protection of the vulnerable groups in Hungary is quite limited, and these groups do not start litigations frequently (Kiss and Tóth, 2021: 56-59), but the number of the relevant court cases were shockingly low. Only 15 1st instance and 2nd instance and review decisions fit- ted into the above-mentioned parameters of the analysis, because the ma- jority of the analysed decision were related to insurance cases based on car incidents, were the keyword of ‘panasz’ in Hungarian language were related to the symptoms of the injury of the person and the above-mentioned SCA was mentioned because of the social care for these persons with altered skills or persons with disabilities. Thus, the relevant number of the decisions were 15 which were related to 8 cases. Thus, the quantitative statistical methods could not be applied because the low number of the elements (n). Therefore, Central European Public Administration Review, Vol. 22, No. 2/2024 211 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary a qualitative analysis of the individual cases has been applied, which was based on the nature of the legal classification of the care services and the nature of the remedies related to the above-mentioned classification (private law or public law-based remedies). Similarly, an important element of the analysis is the examination was the transformation of the practice based on the amend- ment of the legal regulation on the care services in 2018, by which the private law nature of the care contracts was emphasised. 3 Results 3.1 Theoretical Background and Analysis Based on the Legal Dogmatics Hungarian jurisprudence, influenced by German dogmatics, classifies social services of a personal nature as so-called public acts (Fazekas and Asbóth, 2024). With regard to the concept of ‘public institutional acts’, the theory emphasises that they contain both private and public law elements. How- ever, the role of public administration in the organisation of services and the private-law roots of services raise important questions of delimitation in several countries. As I have indicated, social care services also have a public law element because of the state’s role and the link to fundamental rights. Within this framework, delimitation issues also arise in several European countries. Although all the main solutions are ultimately mixed, a distinction can be made between public and private law solutions. The German model, where administrative litigation on social benefits falls within the compe- tence of the social courts as special administrative courts, and is therefore ultimately adjudicated in an administrative court, can be classified as public law (Kokemoor, 2020). The other major model is the Anglo-Saxon system, where the above service contracts are considered as private law contracts, even in the case of public (municipal) service provision, and are therefore primarily adjudicated by the courts under the general rules of civil procedure (and not under Part 54 of the CPR on review of administrative decisions) (ex- cept for mandatory services ordered by public authorities by decision) (Braye and Preston-Shoot, 2017). It has already been seen above that, in those legal relationships which are determined, in whole or in part, by administrative law, public law also estab- lishes mechanisms for the protection of rights. 3.1.1. Public Law Remedies The first group of public remedies in the field of social legal protection is the remedies available within the service provider. In principle, the service recipi- ent can most easily and directly seek redress from the service provider. The complaint. If the service user suffers a minor grievance, it is typical that the head of the public institution (less often the body within the institution) can be approached to investigate the complaint and remedy the grievance. In Central European Public Administration Review, Vol. 22, No. 2/2024212 István Hoffman order to protect the rights of the recipient of the services, he or she has the right to complain under Act CLXV of 2013 on Complaints and Notifications of Public Interest (hereinafter: the old Complaints Act) and, from 24 July 2023, Act XXV of 2023 on Complaints, Notifications of Public Interest and Rules for Reporting Abuse (hereinafter: the new Complaints Act). According to Section 1(2) of the old and the new Complaints Act, a complaint is a request for the redress of an individual’s rights or interests, which is not subject to any other procedure, in particular judicial or administrative. The complaint may also contain a proposal. Since the institutional relationship is not an administra- tive procedural relationship, the person concerned may use this instrument in the event of harm to his or her rights or interests. The complaint must be submitted to the body competent to deal with the subject matter of the com- plaint under Section 1(4) of the old Complaints Act and, from 24 July 2023, under Section 2(1) of the new Complaints Act, which, as a rule, will decide on the complaint within 30 days under Section 2(1) of the old Complaints Act and, from 24 July 2023, under Section 3(1) of the new Complaints Act, which may be extended. However, pursuant to the second sentence of the second paragraph of Article 3(2) of the new Complaints Act, the extended period of examination may not exceed six months. The result of the investigation is an- nounced in accordance with Section 2(4) of the old Complaints Act and, from 24 July 2023, the new Complaints Act. Under Section 5(2) of the new Com- plaints Procedure Act, the complainant will be notified in writing. In order to ensure more effective protection of the rights of beneficiaries, the SCA has introduced provisions with a higher level of guarantees than the new Com- plaints Act. On the one hand, Section 94/E of the SCA establishes a two-tier complaints procedure, under which a complaint about a violation of rights or interests must be submitted to the head of the institution, who will also adjudicate on it. If the head of the institution has failed to take action within the time limit laid down in the SCA or if the complainant does not agree with the action taken, he or she may appeal to the maintainer within eight days of receipt of written notification of the action taken. The term “legal remedy” is used in the SCA for this complaint, but this only refers to the fact that the maintainer reviews the head of the institution’s action within the framework of the Complaints Act. The complaint is not an administrative decision and therefore there is no direct judicial remedy – as it is emphasised by the court decision published at the journal of Court Decisions (Bírósági Határozatok – BH) No. BH2010. 106. – but, as will be shown later in the analysis of the case law, indirect judicial review is widely available. In order to ensure more efficient and faster legal protection, the Act has set a faster procedural deadline for the examination of the complaint compared to the general rule in the old and the new Complaints Act. The head of the institution is obliged to consider the complaint within 15 days and to notify the complainant in writing. As the Act does not provide for exceptions, the rules of the old and new Complaints Act on the extension of the procedure and the waiver of the requirement of written procedure do not apply in this context (Gál, 2017). Central European Public Administration Review, Vol. 22, No. 2/2024 213 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary The public interest report. In addition to complaints, the aforementioned old and new Complaints Acts also regulate public interest reporting, which can be made by anyone, regardless of whether or not they are personally affected by the acts or omissions complained of. These reports draw attention to a circumstance whose remedy or elimination is in the interest of the commu- nity or society as a whole. Like a complaint, a public interest report may also contain a proposal. The new Complaints Act – similarly to its predecessor – stipulates that the head of the service provider (or possibly a body of the institution) must inves- tigate the complaint or the public interest report. If, according to the com- plainant (whistleblower), the investigation of the complaint has not led to a result, he or she may also turn to the maintenance provider under the provi- sions of the Act on the Protection of Public Health and the SCA. In conclusion, it can be said that it may be an appropriate tool for resolving mi- nor infringements and misunderstandings, although in the absence of more thorough legal guarantees, much depends on the attitude of the investigator. However, in the field of social personal benefits, the institution of the com- plaint also appears in many cases of breaches giving rise to termination, as will be shown later. A complaint is typically lodged against a decision by the head of the institution, usually against a decision finding an infringement giving rise to dismissal, and thus, as I will indicate later, the complaint has a specific pre-suit remedial role (Rozsnyai, 2022). The ex officio procedure of the maintainer of the care institution. If the maintain- er of the care institution becomes aware of an infringement, it may initiate proceedings to investigate the infringement. Given that the maintainer, as the body which directs and controls the activities of the provider, exercises deci- sive influence over the governed, this may serve to remedy the infringement. This may be true for individual infringements, but it may also be possible to report the infringing practice and request an investigation of the report. In the case of detected violations or other breaches of the rules, the administra- tive bodies may take a variety of measures. Depending on the legal status of the maintainer, the decisions taken by the maintainer may constitute a public or private one, as will be seen later in the analysis of the case-law, in so far as they have a direct impact on the care relationship (Fazekas and Asbóth, 2024). In the case of social services, there is a distinction between the organisa- tional and legal instruments of the management of the social services and the sectoral-professional management. Sectoral-professional management is sector-neutral, with the same set of instruments, i.e. regardless of whether social services are provided by public or private providers, and is therefore carried out by separately designated bodies of the public administration (mainly county and metropolitan government offices, the ministry responsi- ble for social affairs at central level, currently the Ministry of the Interior, and its specific agency, the Margit Schlachta National Institute for Social Policy). The typical type of this professional influence is legislation and enforcement by public authorities (Szikra and Öktem, 2023). Central European Public Administration Review, Vol. 22, No. 2/2024214 István Hoffman Initiating an appeal against decisions of public authorities. This is possible if the public body exceptionally takes an official, i.e. a legal or binding, decision for an individual client who is independent of it. In such cases, the appeal can be made to the professional administration body, which is usually the met- ropolitan or county government office (district office), but may also be an- other public administration body, in accordance with the rules of the public authority procedure. This procedure can be considered efficient, since precise procedural rules determine which body is to act and what it can do about the application. However, it should also be noted that, since the public body exceptionally exercises only official powers, appeals against such decisions may not be appropriate for dealing with a general and wide range of claims. This solution is more limited in the social sector, mainly in the area of personal services of a child welfare and child protection nature, where in many cases a decision of the guardianship authority orders the mandatory use of the ser- vice (Herczog, 2015). Proceedings instituted ex officio. As with the maintenance body, the profes- sional management body may become aware of infringements in the course of its activities, or on the basis of a report from another public authority or following a complaint from a citizen. Such enquiries are considered official information, i.e. the reported, notified infringement, whether actual or sus- pected, is brought to the attention of the professional administrator in a verifiable manner. The professional management body (or body involved in professional man- agement) does not have maintenance powers in the sector but acts as a pub- lic authority against the offending service provider. Once the provider has started operating, the licensing authority - in the social field, the county and metropolitan government offices – has continuous official supervision of the provider (Hoffman et al., 2016, pp. 457–462). This includes the periodic re- view of operating licences, but if the authority becomes aware of a failure to comply with the conditions of the licence or other infringements affecting the service, it may carry out an inspection before the due review. As a result of such an inspection, it may impose a social administrative fine under the SCA, impose an obligation to restore the lawful status or even withdraw the li- cence. However, the notifier (whether directly concerned or not) has no influ- ence on the course of the procedure, i.e. he cannot force the authority to act (since this procedure is ex officio even if it is based on a citizen’s notification). These powers of public authorities are not directly aimed at remedying an individual breach of rights. Specialised institutions for legal protection. In some cases, the legislator cre- ates sectoral bodies and legal institutions specifically designed to promote the lawful operation of a human service. In the social sector, this is the case of the clients’ representatives, whose role is to help recipients (clients) of social services, child welfare and child protection services to assert their rights. Cli- ents’ representatives do not have the power to take action in their own right but can act as mediators and initiate proceedings (Fazekas and Asbóth, 2024). Central European Public Administration Review, Vol. 22, No. 2/2024 215 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary Administrative lawsuits. In a limited scope, administrative lawsuits can also be brought to protect the rights of subjects in relation to public services (Kovač, 2017). On the one hand, where decisions relating to public services are of a public authority nature – for example, an official decision must be taken to authorise an individual work schedule as defined in the Public Education Act – the decisions may ultimately be challenged in administrative lawsuits. The possibility to enforce public liability for the provision of public services, as it was mentioned above, has been also provided for in the 2018 (Rozsnyai, 2019). Since 1 January 2017, the Act I of 2017 on the Code of Administrative Court Procedure (hereinafter: CACP) has also provided for the possibility of bringing an action for failure to act in the event of failure to fulfil the above obligation, the role of which may be further enhanced, as will be explained in more detail in the section on case law (Hoffman and Rozsnyai, 2024). 3.1.2. Private Law Remedies Considering that the Statute interprets social benefits of a personal nature as a specific private contract between the institution and the recipient, the role of private remedies is very important in this area. Lawsuits on breach of contract and tort actions: If the defective quality of the provision of the human service or the lack thereof causes pecuniary damage, compensation may be claimed in accordance with the rules of private law. In purely private law relationships, this can be a legal consequence of a breach of contract and falls within the scope of contractual liability. In view of the private law nature of contracts, an action for damages may also be brought in the event of breach of contract or wrongful termination (denunciation). As there is no obligation to conclude a contract in the field of social services, there is no possibility for the court to reverse a decision refusing to establish an institutional relationship by creating the contract itself (Rozsnyai, 2019). Lawsuits on privacy rights. If the provision of the service or the failure to pro- vide it causes damage that cannot be expressed in monetary terms (in the old Civil Code “non-material damage”), the court may be asked to award damages for the infringement of the right to privacy. However, the harmful conduct committed in the course of providing the service may also amount to an in- fringement of personality rights. The injured party can then also claim under the rules on liability for non-contractual damages (Dombrovszky, 2024). There is no closed circle of personality rights, but the Civil Code highlights, for example, the violation of the right to life, physical integrity and health; per- sonal freedom, privacy; the right to privacy and protection of personal data, and discrimination against a person. It is not uncommon for these rights to be violated in the provision of human services. Damages for damages and compensation for violation of privacy rights are also paid by the service pro- vider. This is also possible in the field of social services, where the inadequacy of the service results in such an infringement. However, as can be seen from the analysis of the case-law, Hungarian case-law does not ultimately allow this Central European Public Administration Review, Vol. 22, No. 2/2024216 István Hoffman remedy to be used to compensate for the lack of service (Hoffman and Rozsn- yai, 2024). 3.2 Empirical Research: Analysis of the Judicial Practice As I have mentioned in the methodological part, I analysed the relevant le- gal practice, especially on the judicial review cases which are related to the complaint as a major public remedy of the social care services. First of all, it should be emphasised that the complaints as special remedies cannot be directly reviewed by the courts. It is clear – based on the general regulations of the Complaints Act and on the special regulation of the SCA – that the complaints could not be considered as an application for an administrative procedure, the administrative bodies do not take decisions which could be the object of an administrative dispute based on the Section 4 of the CACP (Rozsnyai, 2020). Therefore, these cases are based on the indirect review of these complaint cases. Therefore, as I have mentioned earlier, only 8 cases and 15 decisions could be distinguished as relevant cases from 81 decisions. My first question was based on the classification of the cases. As I have men- tioned, it is clear, especially after the amendment of the SCA based on the en- try into force of the CACP on 1st January 2018, that the cases on social care relationships should be interpreted as civil cases, because the care agreement between the recipient (client) and the care institutions should be considered as a special civil contract based on the approach of the mandate contract (Ecsédi, 2016: 492-493). This approach could be seen by the judicial practice. since 2018 just one case has been decided by the administrative branch (see Figure 2). Figure 2: Administrative and civil cases related to complaints on social care services 2 3 1 2 0 1 2 3 4 5 6 Administrative cases Civil cases Till 31st December 2017 Since 1st January 2018 Source of the data: Based on the data provided by CCD 2024, edited by the author Central European Public Administration Review, Vol. 22, No. 2/2024 217 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary It should be noted, that the only administrative case after 2018 is a non-con- tentious decision concerning the designation of the court following a dispute over jurisdiction in which the Curia decided that the case on the termination of a care agreement between the recipient of service and the care institution maintained by a town municipality should be decided by a civil court as a civil case (Curia of Hungary, Decision No. Kkk.IV.39.259/2022/3.). The civil cases related to the indirect review of complaint were differently interpreted: the majority of them have been contractual compensation cases, based on the infringement of the general or individual rules of the care rela- tions (see Figure 3) Figure 3: Civil cases in social care relations 1 3 1 Civil cases Declaring the termination of the contract as an unlawful act Contractual compensation General privacy issues Source of the data: Based on the data provided by CCD 2024, edited by the author If we look at the administrative cases, it is clear, that there was an uncertainty on the interpretation of the care agreement before 2018. Before 2018 there were two competing interpretations. The first one was differentiated be- tween the agreements of institutions maintained by public bodies and pri- vate bodies. The court classified a case as an administrative court procedure, if the maintainer of the institution was a public body, an authority. In these cases, the 2nd tier complaint decision was interpreted by the courts as an ad- ministrative act, therefore, they reviewed these decisions as administrative decisions following the regulation of the Chapter XX of the Act III of 1952 on the Civil Procedure Rules on judicial review of administrative acts (Judge- ment of the Supreme Court of Hungary No. Kfv.VI.39.927/2010/5. and Judge- ment of the Curia of Hungary No. Kfv.III.37.456/2014/6.). Thus, this approach considered the maintainer’s decision on complaint issues as an administra- tive act. The second approach was partially parallel till 2018. The termination of the care agreement was interpreted by the courts as a mandate contract; therefore, the unlawful termination of the agreement can be reviewed as a contractual compensation case (Judgement of the Debrecen Court of Appeal Central European Public Administration Review, Vol. 22, No. 2/2024218 István Hoffman No. Pf.I.20.550/2012/7. and Judgement of the Budapest Court of Appeal No. 7.Pf.21.020/2012/2.). A special, halfway-approach was applied by the Judge- ment of the Budapest Court of Appeal No. 5.Pf.20.165/2012/9. The court decided on the review of the complaint against the suspension of the care agreement in an administrative damage (tort) case (Fuglinszky, 2015). Since 2018 these parallel interpretations disappeared, the care agreements are in- terpreted solely as contract governed by the private law. However, the judicial practice has several administrative elements. First of all, the SCA has special regulations on the judicial review of these agreements, which are close to the regulation of the administrative court procedure (for example the limited, 30- day period for bringing an action). Secondly, the judicial practice allows the indirect review of the complaints, even the 2nd instance complaint decisions of the maintainer of the institutions, because these decisions are interpreted as declarations related to the contract. In the judgement of the Budapest Court of Appeal No. 6.Pf.20.606/2023/5. the court interpreted the breach of the institutional policy of the care institution1 as a breach of the contractual regu- lation, therefore, the unlawful termination of the contract was stated by the court, and this termination was annulled. Similarly, it was stated by the court, that however the complaints against the acts of the director (head) of the care institutions are reviewed by the maintainer of the given care institution, but the care agreement is a contract between the recipient of the services (clients) and the given institutions, therefore, the maintainer could not be in- terpreted as defendants of the civil litigation (Judgement of Debrecen Court of Appeal No. Pf.I.20.550/2012/7., Judgement of the Budapest Court of Ap- peal No. 7.Pf.21.020/2012/2. and Judgement of the Budapest Court of Ap- peal No. 6.Pf.20.606/2023/5.). As these issues were decided by the civil court in a judgment, the approach outlined is that the court treated the position of the maintainer in the action as a question of standing. Another important issue on the system of remedies is the protection of the clients against the omission of the service provision. In the field of public educa- tion, there were successful litigation in civil (privacy) cases against school dis- crimination and lack of the adequate educational services (Dombrovszky and Hoffman, 2023: 8-10). After the successful private actions another action was submitted to the courts. The action was based on the limited capacities of the Hungarian disability care system. The majority of the Hungarian social care institutions responsible for the care of persons with disabilities are located in the countryside. Nearby the capital city, Budapest the number of the care institutions are limited, and these institutions are mainly large ones, which do not offer a personalised service. Therefore, six parents caring for children with severe disabilities submitted an action based on the right to privacy to oblige the Ministry of the Interior (as the ministry responsible for social af- fairs) and the Directorate-General for Social Affairs and Child Protection – as 1 The institutional policy of the care institution stated that before the termination it is manda- tory to have the recommendation of the institutional representative body of the care recip- ients. This recommendation was not asked in the case and the court stated, that the lack of the recommendation is an essential infringement of the institutional policy which is a general regulation of the care agreement, therefore, the termination of the care agreement was an- nulled. See Judgement of the Budapest Court of Appeal No. 6.Pf.20.606/2023/5. Central European Public Administration Review, Vol. 22, No. 2/2024 219 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary the administrative bodies responsible for the provision of residential social care – to provide subsidised housing for persons with disabilities as a residen- tial social care service near Budapest. Their action was represented by one of the watchdog NGOs, the Civil Liberties Association. The 1st instance court, the Budapest Capital Court dismissed the action, because the Budapest Court of Appeal as a 2nd instance court squashed the first judgement. The 1st instance court and the 2nd instance court upheld the action, and damages was stated. The justification of the 2nd instance court was based on the right to privacy. It was stated by the court, that there are long waiting lists, and the services are mainly available far from Budapest. Therefore, the lack of subsidised hous- ing, as a personalised care for people with disabilities can impact negatively the family and social connections of the persons with disabilities. Therefore, the infringement of right to privacy can be stated (Budapest Court of Appeal Judgement No. 8.Pf.20.047/2022/5.). This judgement was overturned by the Curia, as the Supreme Court of Hungary. The justification of the judgement says that “[t]he needs to ensure access to a service of social assistance cannot be a basis for the protection of right to privacy. A court in civil proceedings, act- ing under private law, has no power, in the absence of a statutory authorisation, to order the defendants to take measures in the field of public law. The failure of the defendants, acting as executive organs of the State in the performance of their public law duties, as alleged by the plaintiffs, does not give rise to a relationship of privacy.” (Paragraph [88] of the justification of the judgement of the Curia of Hungary No. Pfv.IV.21.186/2022/10.) Therefore, the Curia changed its approach. However, there were tensions between duties based on public law and the jurisdiction based on private law, but formerly, these tensions were ignored by the courts (Hoffman and Rozsnyai, 2024). This new direction – the judgement of the Curia was passed on 5th April 2023 – shows, that the private law solutions could not been applied for such omission cases. Because there is a limited stare decisis principle institutionalised by the Funda- mental Law of Hungary, this judgement should be applied in similar cases, as well (Virág and Völcsey, 2020). 4 Discussion However, the Hungarian remedy system against the decisions on social care services has partially public law elements, it is strongly based on the private law model. Because these services are related to the fundamental rights of persons, even to the right to life and the right to security, therefore, the pub- lic elements cannot be avoided during the legislation. Based on this mixed nature of these services, there is a strong dispute whether these acts should be classified as administrative acts and administrative contracts and agree- ments. This approach is based on the above-mentioned public nature of these relationships (Webley and Samuels, 2012). There are different theoretical ap- proaches which underlines the civil nature of the agreements between the final recipient of the services and the actual service provider (Nagy, 2022). As it could be seen, the sectoral legislation and the judicial practice followed this approach and they incorporated the review of the administrative regulation Central European Public Administration Review, Vol. 22, No. 2/2024220 István Hoffman into the review procedure of the contracts and the acts based on the con- tractual agreements. Therefore, this civil approach cannot be considered as a ‘pure’ one, as it could be seen in other countries, it could be considered as a mixed one (Kovač, 2021). This private law-based approach has a major deficiency in the field of effec- tive legal protection. It could not offer protection against the denial of the service provision and thus it offers limited protection against the omissions of the service provision. As I have mentioned earlier, in the Hungarian private law the court may conclude a contract if the legislation (an Act of Parliament) imposes an obligation to conclude a contract. If such an obligation has not been institutionalised, the court could just state the infringement during the review of the denial for service provision for the person, but it has not the right to conclude it. The judicial review could be just hardly interpreted as an effective legal protection in this field. Thus, to provide an effective legal pro- tection it should be considered to amend the legislation and to declare that the care agreement should be based on an administrative decision, which could be reviewed by the courts, and if the denial is unlawful, the administra- tive court could have the power to amend it and thus to conclude the care relation – without harming the private law contract and the dogmatics of the private law solutions. Similarly, if the service is not provided generally, the private law-based ap- proach could not offer an effective solution. As it could be shown earlier, the Curia of Hungary stated that the tort cases are not effective for forcing the public administration to fulfil their duties defined by the public law. But it should be mentioned that the Chapter 22 of the CACP declares, that a suc- cessful action against failure to act can result the substitution of the admin- istrative decision and the court can oblige the administrative body to fulfil its duties. Therefore, it could offer a valid solution to omission in public ser- vice provisions. Because the major standards of public services are defined by the Act of Parliaments and the implementing (Government or Ministerial) Decrees of them, the content of the public duties are well defined. Thus, if these statutory obligations are not fulfilled by the administrative bodies, they can be effectively sued even by the citizens. However, it is a real possibility, there isn’t any judicial practice on it. As we have mentioned earlier, the litiga- tion based on private law has been dominantly. But the transformation of the approach of the Curia, and by these new public law rules, it could be a “begin- ning of a beautiful friendship”: a beginning of a new judicial practice. 5 Conclusion The remedies against the decisions of the social care institutions on care rela- tions could be interpreted as a good example for the tendencies of the le- gal protection against the actions of the public provision system. It can be seen, that originally a mixed, but public law-based system evolved, which was based on the legal status of the maintainer of the care institutions (Rozsnyai, 2021). This mixed approach has been transformed during the last decade, and Central European Public Administration Review, Vol. 22, No. 2/2024 221 Public and/or Private? Remedies Against the Different Decisions on Social Care Services in Hungary a private law-based solution has been developed: the care contracts are inter- preted as a mandate contract-based legal relationship. This ‘privatisation’ of the remedy system is fitting into the tendencies of the last decades in Europe, where the public law remedies have been transforming and private law-based solutions are preferred by the legislation (Dragos, 2022). However, the legis- lation offers different ways, like the new omission procedures established by the CACP, legal practice on remedies on social care contracts in Hungary show that the public law-based remedy system is ‘under siege’. Central European Public Administration Review, Vol. 22, No. 2/2024222 István Hoffman References Braye, S. and Preston-Shoot, M. (2017). Social work and the law. In R. Adams, L. Dominelli and M. Payne, eds., Social Work. 3rd edition. 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Central European Public Administration Review, 22(2), pp. 225–252 DOI: 10.17573/cepar.2024.2.11 1.01 Original scientific article Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation Polonca Kovač University of Ljubljana, Faculty of Public Administration, Slovenia polonca.kovac@fu.uni-lj.si http://orcid.org/0000-0002-7743-0514 Received: 23. 9. 2024 Revised: 21. 10. 2024 Accepted: 25. 10. 2024 Published: 27. 11. 2024 ABSTRACT Purpose: The article aims to identify systemic challenges in Slovenian administrative practice arising from an inadequately regulated right to appeal under the General Administrative Procedure Act (GAPA). For this purpose, an analysis of Administrative Consultation (AC), a legal clinic op- erating since 2009, was conducted. The study includes analyses of the content, complexity, and reasoning behind the occurring dilemmas as a ground for GAPA recodification. Design/Methodology/Approach: Considering the nature of the topic in the scope of administrative law, a combined qualitative approach is ap- plied, including normative and dogmatic methods, literature analysis, case law review, basic statistics, and axiological method. Empirical re- search is based on over one hundred cases with questions and answers regarding GAPA interpretation in administrative practice. Findings: Administrative appeal serves multiple functions, from protect- ing the rights of the parties to ensuring consistent sector-specific leg- islation implementation. The analysis identifies systemic issues, such as: standing to file an appeal (especially for other affected persons or authorities), grounds for appeal, competence regarding appellate deci- sions, determining when the first-instance body can handle an appeal and when devolution is necessary, alternative dispute resolution in appeals, deadlines for lodging and deciding on appeals, and the possibility of waiv- ing the right to appeal. In addition, the (lack of) options for digitalised proceedings is notable. These insights serve as an empirical basis GAPA recodification. Academic Contribution to the Field: The article offers a regulatory and doctrinal analysis of the relevant legal provisions (including EU law, the Slovenian Constitution, and the GAPA) focusing on the aims, locus standi, time limits, grounds, and other elements of appeals. It also explores the key findings from Slovenian case law on administrative disputes regard- Central European Public Administration Review, Vol. 22, No. 2/2024226 Polonca Kovač ing appeals, as reflected in decisions by the Supreme and Administrative Courts as well as in administrative practice. Research/Practical/Social Implications: The article provides a concise overview of the relevant literature and an analysis of the rules that un- derpin the implementation, evaluation, and improvement of GAPA as regards the right to appeal. Based on these insights, it proposes de lege ferenda solutions for a clearer GAPA. The findings can serve as a founda- tion for data-based decision-making. Originality/Value: The article brings forward the study of AC as a source for systemic overview of problems in the field. With more than a hundred cases from the past 15 years analysed, it offers an objective insight into recurring dilemmas in administrative practice. The approach to identify- ing key challenges is consistent through the use of established and com- bined social sciences research methods. Keywords: administrative procedural law, Administrative Consultation, right to appeal, GAPA codification, Slovenia JEL: K23, K40 1 Introduction Administrative procedures are an important part of contemporary society, regulating relation between the authority and private holders of substantive rights. To ensure the latter and limit potential misuse of power due to oth- erwise dominating public interest, the EU law, the Slovenian Constitution,1 and the (hereby-Slovenian) General Administrative Procedure Act (GAPA)2 are offering the right to appeal as a regular legal remedy (cf. Galetta et al., 2015; Avbelj et al., 2019; Dragos, 2023). Administrative procedures play a crucial role in modern society, particularly within European and other traditions, providing a formal framework that defines the relationships between authorities and individuals. To maintain democracy and effectiveness, authorities must balance the public interest with the rights of the parties to these procedures. To ensure this balance, administrative procedures are governed by law, with various forms of legal protection against the misuse of power by administrative authorities. The lat- ter is provided to parties in the GAPA, and laws governing judicial review over administrative acts (more in Stare and Pečarič, 2021). In Slovenia, legal protection in administrative cases is founded on well-es- tablished international legal and constitutional guarantees available in the relationships between authorities and individuals. Various forms of legal pro- tection exist, including ordinary and extraordinary remedies in administrative procedures and judicial reviews of individual and other administrative acts. 1 See Articles 41 and 47 of the Charter of Fundamental Rights of the EU. Cf. Galetta et al., 2015. See also Articles 23, 25, 157 and 158 of the Slovenian Constitution; more in Avbelj, 2019. 2 GAPA, General Administrative Procedure Act, Official Gazette of the RS, No. 80/99 and amend- ments. Central European Public Administration Review, Vol. 22, No. 2/2024 227 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation These procedures are designed to protect both the public interest and the rights of the parties, and this dual protection extends to legal protection as well, though to a different extent. For instance, appeals and judicial reviews primarily benefit the parties by preventing authorities from abusing their otherwise superior position, while extraordinary remedies protect both pub- lic and private interests. These remedies enforce legality, a fundamental prin- ciple in (administrative) legal matters (Article 120 of the Constitution, Article 6 of the GAPA). Nevertheless, they are seen as exceptional interventions in is- sued decisions, as the primary concern for substantive and procedural legal- ity (e.g., through the principle of hearing the party) lies in the first-instance procedure. In this way, legal certainty (the effect of and confidence in final decisions) is prioritised over legal correctness or legality. The exceptional na- ture of remedies is reflected in the restrictive provisions governing their use: only remedies provided by law may be employed, they may be employed only in specific cases of locus standi, on legally provided grounds, and within le- gally provided time limits. Any essential procedural errors must be addressed to protect legality, with administrative appeals serving as the first option in this regard. Under Slovenian law, administrative appeals are a prerequisite for judicial protection. However, regulations alone do not suffice for legal remedies to be used ef- fectively, as demonstrated by the Administrative Consultation (AC) project. Launched in 2009 (Kovač and Dečman, 2009; Kovač and Sever, 2015), sus- pended in 2014 due to high demand and limited resources and significantly redefined in 2022/2023, the AC is a joint research and educational project by the Ljubljana Faculty of Administration and the Ministry of Public Administra- tion. It provides principled explanations of dilemmas concerning the applica- tion of the GAPA in individual situations. The project interprets provisions of sector-specific regulations and the GAPA with due consideration of the funda- mental principles of public administration. The project gathers and addresses dilemmas in the implementation of the GAPA across various administrative authorities and fields. The project involves around 10,000 users, over 120 participating postgraduate students, and 20 practitioners as their mentors. With almost 1,200 questions and answers as of 2024, about one-fifth relate to legal protection, allowing to analyse cases specifically tackling appeals in an objective way since cases have arisen in various real-life situations and ad- ministrative fields (foreigners, social affairs, taxes, construction, inspections, personal data protection, etc.). These cases – as shown further (see the results and discussion parts of this paper) – as well as comparative studies (e.g., Hoffmann et al., 2014; Sever et al., 2016; Đanić Čeko and Kovač, 2020) lead to a conclusion that there is a need for a systematic revision of the GAPA in terms of good administra- tion. The above is relevant in the framework of better regulation since not all provisions of general law are intended to protect public interest or indi- vidual rights; hence, they generate red tape and/or open up basic dilemmas, hence not providing legal certainty. This means that it would be necessary to provide a new contemporary codification of the general administrative proce- Central European Public Administration Review, Vol. 22, No. 2/2024228 Polonca Kovač dure that would capture the majority of the spirit of the current GAPA when there is an established tradition to be valued. On the other hand, the renewed codification would shed a new light on truly important principles, distinguish- ing them from others that should be either deleted or moved to implement- ing or organisational rules, particularly regarding the legal remedies. 2 Methodological Framework 2.1 Research Question and Methods Applied The purpose of this study is to identify the main dilemmas in administrative practice based on the AC analysis. Hereby, the usage of legal remedies, and excising the right to appeal in particular, was selected as a key safeguard re- flecting also other the most important GAPA rules as reasons to appeal. Fur- ther, the aim of the research is to elaborate the identified gaps between the aim of the law and practical dilemmas according to their complexity and rea- sons for the respective gaps. Finally, recommendations for the GAPA amend- ments or even guidelines for a new codification are proposed to increase ef- fective application of the right to appeal in future. The research questions addressed in this article are therefore two: (1) What are the main dilemmas regarding the rules regulating appeals in administrative procedures in Slovenian administrative practice according to AC cases? (2) And what are the reasons for these dilemmas, and what solutions exist to protect legal interests in administrative relations as effectively as possible? Hereby, the usual research process was applied. Firstly, a definition of the re- search problem and research questions was set. Secondly, a broader theoreti- cal study with study the relevant scientific literature was carried out, including recent case law analysis. Thirdly, a design of the AC analyses with qualitative statistical elaboration and case studies was made, followed by a collection of data and their analyses and interpretations. To address the above research question about the Slovenian GAPA modifi- cations in the framework of not clear provisions regarding the right to ap- peal, a qualitative approach with several combined research methods was applied. The topic is highly legally determined; accordingly, various qualita- tive methods were used to answer the said research questions—such as the dogmatic, normative, and comparative methods and case studies of GAPA amendments—and the axiological method. Although scarce, these methods can provide an overall diagnosis of the situation. Being aware of the limitations of qualitative research, further analyses were envisaged. Quantitative insights are often not possible since no exact meas- urements (e.g. on the impact of GAPA modifications) are available. In order to overcome these deficiencies at least to a certain extent, various sources of literature and comparative studies are examined, while the Slovenian GAPA and its amendments are assessed in the light of respective findings, although Central European Public Administration Review, Vol. 22, No. 2/2024 229 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation subjectively. Moreover, other methods were used to strive for objectivity, such as statistical overview based on app. 1,200 AC cases, with about 120 of them directly tackling the right to appeal. Another approach is facing theory, some insights of comparative studies abroad and case law in administrative disputes with the AC related administrative practice. In the latter part, not just basic statistical analysis is provided bit there are case studies emphasised that reveal systemic problems in implement the law effectively. The relevant GAPA modifications aiming at simplification and legal certainty are exposed only when and if they are to be considered a role model for amendments to the GAPA. Indeed, the analysis presented is therefore diagnostic, which calls for ongoing and upgraded research in the future. In the future, broader and empirically substantiated analyses are required in order to incorporate more countries and acquire empirical data. This approach has already been used as a good model, although national systems in various countries often express a lack of quantitative measurements (see Auby et al., 2014; Koprić et al., 2016; Dragos et al., 2020). The article first presents the methodological framework applied, including a brief presentation of the AC as a research and educational project, serving as an empirical basis for the analysis of current trends, with over one hundred dilemmas of administrative practice related to appeals only. The third section is dedicated to regulatory and theoretical framework of appeals in adminis- trative cases under the GAPA, as well as the relevant recent case law from the Slovenian Administrative and Supreme Courts. The section on analysis of the AC cases in the results, the relevant cases are categorised into specific sub-groups, identifying key problems and grounds for amending the GAPA to- wards more effective protection of both the public interest and the rights of the parties. Further, a discussion is provided based on the selected systemic case studies with suggestions how to change the law in future. Finally, there is a conclusion. 2.2 AC as a Mechanism of Collaborative Administration and Source for Evidence Based Decision-Making The Administrative Consultation (AC) is a research and educational project that has evolved significantly since its inception as a (administrative) legal clinic. Established in 2009 and revitalised in 2022 and 2023, it now serves as a comprehensive framework for various activities, including evidence based decision-making. The project’s findings provide a basis for decision-makers to improve regulation and practice. Run by the Faculty of Administration and the Ministry of Public Administration, the AC involves the collaboration of aca- demia, state authorities, and postgraduate students. By publishing questions and answers, the web portal pursues the principles of participation and digi- talisation (Kovač and Dečman, 2009; Kovač et al., 2023). The primary purpose of the AC project is to provide advice on specific issues of administrative procedure, facilitating a systematic collaboration among various stakeholders. The question is first generalised – anonymising details Central European Public Administration Review, Vol. 22, No. 2/2024230 Polonca Kovač about the user, authority, and field (unless the specifics of a regulation are of particular interest, in which case the field and the leges speciales are in- dicated). A general, reusable answer is then provided. Therefore, the pro- ject aims to resolve specific dilemmas in administrative procedural law and generalise solutions for broader application across different authorities and related fields. The focus is on offering expert guidance to officials and par- ties on how to respond to dilemmas regarding the interpretation of specific rules in given situations, in accordance with the principles of collaborative governance (see Figure 1) and constitutional and administrative procedural law. In addition to the users (officials, parties, NGOs, rule-makers), the pro- ject involves faculty professors and senior officials from public administra- tion. These experts act as mentors within the MPA working group, guiding mainly postgraduate students responsible for drafting responses. This setup provides students with the opportunity to address real-life problems. The collaboration among all participants ensures high quality and professional responses (Kovač et al., 2023). In this respect, the Faculty of Administration conceived the AC as a combina- tion of practical needs and theoretical understanding of participative-collab- orative administrative relations in contemporary society. Namely, a key func- tion of the administrative procedure rules that regulate the (co)operation of the administration with parties is to ensure balanced protection of the subor- dinate party; public interest should of course prevail over private interests, yet not absolutely. Administrative procedure can thus be seen as the basic tool of legitimacy and democracy (Hoffman et al., 2014; Kovač and Sever, 2015). Figure 1. Collaborative governance as the framework of AC activity Administrative authorities and services Legitimacy Authorisation Socialisation Knowledge Information, supervisors, etc. Public administration = Ministry of public administration and other policy-makers Academia = university, Faculty of Public Administration, professors, students, administrative law scholars and professionals Users: parties, citizens, companies, NGOs, civil servants Partnership and co- creation Source: Own. The AC portal – adding 3 to 5 new cases per week in 2023 and 2024 – is fre- quently used in administrative practice; in some instances, it is regularly and systematically used as a complementary resource by public authorities (e.g., administrative units or ministries). Data on its usage show around 100 clicks per working day until 2002, increasing to around 300 clicks per working day Central European Public Administration Review, Vol. 22, No. 2/2024 231 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation from 2023 onwards, with over 10,000 total users (Kovač et al., 2023). About a quarter of the users are parties to administrative procedures, while the re- mainder includes officials who conduct the procedures or draft specific pro- cedural rules in sector-specific regulations. Given the diversity and volume of cases, the portal provides a valuable resource for analysing whether and how the GAPA is applied in practice and identifying areas where modifications may be needed. It thus serves as a basis for analysis and evidence-based develop- ment of new public policies and improvements to regulations. Networks, in general and within public administration, are important for solv- ing and overcoming social and public challenges. We can distinguish coopera- tive, coordinative, and finally collaborative networks, which differ by the type of relationship, degree of risk, the commitment involved, the network’s focus, and the end result (more in Kovač and Sever, 2015). Collaborative networks occur when dealing with very complex problems, as is the case in the GAPA and related statutes (non)implementation. The contribution of academia and administrative science in this sense is twofold, first, by pointing out theoreti- cal considerations and conceptual grounding for data based decision-making; and second, by reconfirming discussion on collaboration – in both cases lead- ing to mutual social efforts and increased participation in public governance. By coherently resolving multidimensional dilemmas in a certain life-event, the AC pursues an evolving cross-disciplinary understanding, and within evidence- based future decision-making a pivotal mechanism. The AC is a knowledge- providing legal source for all stakeholders involved (private and public), as well as a co-creation platform. Namely, one of the main benefits of the AC is the extensive usability of solutions as both questions and answers are gen- eralised and made publicly available, providing individual as well as systemic solutions and as such contributing to society as a whole. It enables the le- gitimate and effective identification of the concrete administrative/legal di- lemmas of parties in practice, which serves as important feedback to public authorities. 3 Theory and Case Law on an Administrative Appeal 3.1 Generally on Legal Protection in Administrative Affairs Legal remedies provided by law, such as the GAPA or sector-specific laws, are the only means by which a decision can be changed, annulled, or abrogated, which is defined in Slovenia under Article 158 of the Constitution. In this, re- spect, a better understanding of the dynamics between constitutional and ad- ministrative law, particularly in the digital state, in terms of what is known as ‘digital constitutionalism’ is advocated (Ranchordas, 2024). In terms of reme- dies, the GAPA has not undergone substantial amendments since its adoption in 1999, with only minor changes made in 2004 regarding absolute essential errors, the time limit for reopening the procedure, and supervisory bodies, and in 2007 concerning the waiver of the right to appeal (see Kovač, 2020). Central European Public Administration Review, Vol. 22, No. 2/2024232 Polonca Kovač The GAPA defines appeals as ordinary remedies and provides for five addition- al extraordinary remedies. Sector-specific laws may offer further remedies, but these apply only to substantive acts and decisions. For instance, restitutio in integrum can also be considered a legal remedy, although the GAPA refers to it in the context of time limit (cf. Kovač and Kerševan, 2020/1). Procedural acts, on the other hand, are subject to appeal only if specifically provided by law, with extraordinary remedies only under exceptional circumstances as outlined in the Administrative Dispute Act.3 The 1999 GAPA offers six remedies, which are more extensive than those in other procedural laws or APAs in other countries (see Dragos, 2023;Auby et al., 2014; Koprić et al., 2016; Sever et al., 2016; Kovač, 2020; Đanić Čeko and Petrašević, 2020; della Cananea, 2022). This is characteristic particularly for an arrangement under the 2016 proposal for a ‘European APA’ with only two remedies (Hofmann et al., 2014; Đanić Čeko and Kovač, 2020). These are meant as one in favour of the parties and the other interfering with their le- gal status. Unlimited remedies can lead to irresponsible decision-making by authorities, eroding confidence in the law (and the state or the authorities), potentially undermining the rule of law. Legal remedies can thus be viewed as remedies to cure certain ailments of the procedure or administrative acts (Kovač, 2013, also referring to the 1923 code known as Steskov postupnik, which defined legal remedies as remedies for ailments of the procedure). However, not every procedural error constitutes unlawfulness, necessitating the use of remedies or judicial procedures in favour of the appellant. Only major errors – such as misapplication of substantive law, incomplete or in- correct fact-finding and essential procedural errors – constitute grounds for appeal (Article 237 of the GAPA). Generally, administrative decision-making in Slovenia is a two-instance procedure, which can then be followed by judicial protection. In employing remedies, it is necessary to differentiate errors in contested de- cisions based on their severity. Errors are classified as more or less severe. For instance, a decision lacking the operative part or the signature of the official who made the decision is automatically invalid and therefore not subject to challenge through legal remedies. Conversely, the absence of the instruction on legal remedies is not considered an essential error; the decision remains valid as long as the errors do not disadvantage the party.4 However, a deci- 3 Article 5 of the Administrative Dispute Act provides for judicial protection only in case of pro- cedural acts by which the procedure has been reopened, concluded (e.g., rejection order), or stayed. There have been several examples of case law in recent years on when appeals are not allowed: e.g., there is no appeal against a record, a reprimand, or a second-instance act, in which case the appeal is rejected (see Administrative Court cases II U 337/2020-31, 3 May 2023, II U 195/2020-11, 20 February 2023, I U 1087/2019-12, 18 May 2021, I U 129/2018-9, 30 April 2019). 4 Supreme Court, case U 672/96-8, 11 December 1996: An administrative dispute may be initiat- ed against an administrative act adopted at second instance, or against an administrative act adopted at first instance, if no appeal has been lodged in the administrative procedure. If the applicant files an action because the first-instance authority provided an incorrect instruction on available remedies, contrary to Article 259 of the GAPA, the court will dismiss the action, and the 15-day time limit for the applicant to lodge an appeal starts from the day after the order dismissing the action has been served. Central European Public Administration Review, Vol. 22, No. 2/2024 233 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation sion lacking the statement of reasons is considered an essential procedural error under Article 237 of the GAPA5 and is subject to appeal within 15 days of the service of the individual first-instance administrative act. Likewise, failure to allow all participants with legal standing to participate in the procedure constitutes an essential error and thus grounds for appeal and extraordinary reopening of the procedure up to three years after the decision was issued. From a constitutional perspective, legal protection must not only be lawful but also effective (Kovač, 2013; Moldovan and Bucătariu, 2019; Kovač and Ribič, 2022). To understand the notion of effectiveness, or assess the mecha- nisms provided by the GAPA as more or less effective, the mechanism in ques- tion must be evaluated in the context of the administrative system or the (current) social adequacy of applicable norms. An effective mechanism can be defined as one that, in practice, achieves the objective of the norm. In ad- ministrative procedure, effectiveness is what contributes to the essential pur- pose of administrative procedure, i.e., balancing the rights of the parties and promoting the public interest. Effectiveness also depends on the implemen- tation of the rules in the real world. An effective legal mechanism is one that is applied to the extent intended by the norm (e.g., extraordinary remedies only in exceptional circumstances) and in line with its purpose. Key criteria for evaluating the effectiveness of legal remedies include their admissibility or exclusion (in particular, appeal as an ordinary remedy and exceptions to the fundamental principle of the right to appeal under Article 13 of the GAPA and Article 25 of the Constitution), (non-)devolution, (non)suspensiveness, etc. In particular, the notion of effective protection has emerged in recent years in relation to (semi-)automated decision-making. Various authors and case law emphasise that the party must be informed of such an approach and held accountable for the decision, as provided by Articles 5 and 22 of the GDPR. Parties must generally be guaranteed fair procedures or good administration under Articles 41 and 47 of the EU Charter of Fundamental Rights and Arti- cles 6 and 13 of the European Convention on Human Rights. These rights of defence include access to the file, the right to be heard, the right to be given reasons, and the right to an effective remedy (Galetta and Hofmann, 2023; Ranchordas, 2024).6 Remedies have different effects; they can either annul or replace a decision or declare it void, which has a retroactive effect (ex tunc) and applies in case of serious errors, or modify and abrogate it, in which case the effect is pro- spective (ex nunc). In any case, it is necessary to strike a balance between the exceptionality of interference and legality. It is not possible to a priori define, 5 This is one of the most common errors also according to administrative case law. See, e.g., cases of the Administrative Court I U 1439/2014, 22 September 2015, or I U 922/2021-12, 18 September 2023. Among the seven essential procedural errors under Article 237(2) (see Fig- ure 1), the most common in Slovenia is violation of the right to be heard (see Administrative Court case II U 123/2021-13, 7 August 2023). Note that the right to be given reasons (together with the right to be heard) is one of the key standards provided by Articles 41 and 47 of the EU Charter of Fundamental Rights, cf. della Cananea, 2022, and specifically for (semi) automated decision-making Galetta and Hofmann, 2023. 6 For the right to good administration in composite procedures, see also C-604/12, H. N. v. Min- ister for Justice, Equality and Law Reform and Others of Ireland, 8 May 2014, and regarding automated decision-making Schuffa case, C-634/21, 7 December 2023. Central European Public Administration Review, Vol. 22, No. 2/2024234 Polonca Kovač for example, the reopening of procedure, which is a non-devolutive remedy, as less effective than the devolutive and, in principle, suspensive appeal. This view is supported by empirical comparative studies (see Dragos and Neamtu, 2014; Koprić et al., 2016; Moldovan and Bucătariu, 2019). Hence, it is the pro- visions on remedies to reveal which provisions of the (rather detailed) GAPA are most relevant. These include, foremost, Article 237, which defines (abso- lute) essential procedural errors or, a contrario, essential rules that constitute formal legality (as illustrated in Figure 2). Figure 2. Essential procedural errors by stage of procedure as grounds for legal protection Initiation of procedure upon request or ex officio Relations between participants Individual administrative act concluding the procedure and application of law to a specific real-life situation 237 (2, 1): if the decision was issued by an authority without subject matter jurisdiction 237 (2, 7): if the decision cannot be examined 237 (2, 6): if in deciding or conducting the procedure a person has participated who, by law, should have been recused 237 (2, 5): if the provisions of this Act on the use of language have been infringed 237 (2, 4): if the party, in accordance with an act, has not been represented by a statutory representative or if the authorised person had not been granted the proper authorisation 237 (2, 3): if the party or accessory participant has not been given the possibility to be heard on the facts and circumstances 237 (2, 2): if a person who should have participated in the procedure as a party or accessory participant has not been given such possibility, or if a person has participated who could not have been a party Authority Party Fact-finding and presenting evidence Source: Own. The GAPA also provides five more extraordinary legal remedies, some of which share grounds with appeals. This overlap raises concerns about effec- tive legal protection in the application of the law, highlighting the need for optimal regulation and addressing sometimes questionable administrative practices. Typical of the extraordinary remedies under the GAPA is that they can be employed based on specific grounds listed for each extraordinary remedy: ten grounds for reopening, six grounds for declaring a decision void under Article 279, five grounds for the application of the supervisory right under Article 274, and one ground for extraordinary annulment of a decision under Article 278. In practice, the most frequently employed extraordinary remedy is the reopening of procedure (more in Kovač and Jerovšek, 2023; Dragos and Neamtu, 2014). Central European Public Administration Review, Vol. 22, No. 2/2024 235 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation 3.2 Basic Rules on the Right to Appeal According to the Slovenian GAPA Appeal, as a regular remedy, is crucial for legal protection in administrative cases. It is the only ordinary remedy under the GAPA, i.e., a remedy that is em- ployed before the administrative finality (and, as a rule, enforceability) of the decision, unless explicitly excluded by law (the GAPA or a sector-specific law) (e.g., when a ministry decides at first instance and the law does not provide for an appeal or an appellate body).7 According to administrative statistics, appeals are filed in only about 3% of cases in Slovenia, translating to roughly 300,000 appeal procedures against up to ten million administrative decisions issued at first instance per year.8 Appeal is a fundamental legal remedy de- fined by Articles 13 and 229 et seq. of the GAPA with three complementary objectives (Kovač, 2013; Kovač and Jerovšek, 2023). First, with its dispositive, devolutive, and generally suspensive nature, appeal serves to protect the rights of the parties involved in an administrative procedure (in addition to the main party, also accessory participants and individuals with a legal interest who could not participate earlier). This function aligns with EU and compara- tive law, according to which appeal, together with other rights of defence in administrative procedures, ensures the protection of citizens from arbitrary exercises of power and public policy implementation (della Cananea, 2016; Avbelj et al., 2019; Ranchordas, 2024). Second, since the right to appeal is also available to the defenders of public interest (e.g., public prosecutors and state attorneys, as well as public inter- est associations as a hybrid between a public interest representative and an accessory participant),9 the appeal also protects legality, which is further con- firmed by the authority’s power to modify a decision against the appellant in an appeal procedure, since the prohibition of reformatio in peius10 is not estab- lished. Third, appeals promote administrative system coherence and equality before the law, particularly through the power of the appellate authority to review ex officio absolute essential procedural errors and errors of substan- tive law. This part concerns, inter alia, the positive control of government agencies by branches of government with sovereign authority in law-making (on the mixed role of certain state authorities in rulemaking and decision- making see Hofmann et al., 2014; Galetta and Hofmann, 2023; Ranchordas, 2024). Fourth, appeals help reduce the overload on the courts, as bypassing this stage often leads to the rejection of judicial review. Appeals known in Slovenia are therefore similar to hierarchical or mandatory appeals within the so-called objection procedures or recours hiérarchique or Widerspruch (Dragos 7 Appeals and other legal remedies cannot be regulated by implementing regulations – they are materia legis, see e.g. Administrative Court cases I U 340/2013, 10 December 2013, I U 74/2013, 17 September 2013, I U 1919/2012, 7 May 2013, I U 407/2011, 16 October 2012 (e.g. with the rules on the implementation of the budget). 8 See https://upravnastatistikaweb.azurewebsites.net/. 9 The same applies to extraordinary remedies; e.g., an environmental NGO has the right to file legal remedies based on the Environmental Protection Act (Administrative Court case I U 1305/2020-12, 25 November 2022). 10 This is exceptionally possible under Article 253 if specific grounds for extraordinary remedies are provided (Administrative Court case I U 1995/2013, 26 August 2014). Central European Public Administration Review, Vol. 22, No. 2/2024236 Polonca Kovač and Neamtu, 2014; cf. Puškar case, C-73/16, 27 September 2017, and Kovač and Kerševan, 2020/1, pp. 53ff). An appeal is always devolutive, meaning that it is not decided by the authority that issued the contested decision but by another, higher authority (i.e., a line ministry or mayor in municipal cases, or another authority under lex specia- lis). Generally, appeals are suspensive, halting the execution of the contested act unless otherwise provided by a sector-specific law (e.g., in tax or inspec- tion matters) or for the sake of public interest protection (Article 236 of the GAPA). To achieve a non-suspensive effect, a specific clause must be included in the operative part of the judgment (more in Kovač and Kerševan, 2020/2). Upon appeal, a decision can be annulled, replaced (already at first instance, through Article 242 of the GAPA), changed, or declared void. The right to appeal is available to parties to the administrative procedure and all persons in such position, e.g., representatives and (potential) accessory participants, as well as senior state attorney and state prosecutor, but not to authorities. The appeal must be lodged within 15 days from the actual or fictitious service of the first-instance decision and is time-barred. A common dilemma in case-law concerning the time limit is when the first-instance act was served, since the time limit for appeal only runs from the actual or ficti- tious service of the contested act (Kovač and Kerševan, 2020/2).11 A party can also waive the right to appeal in a dispositive procedure. A waiver by all indi- viduals with the status of a party results in administrative finality and finality from the date of the (last) waiver.12 The appellant must state the grounds of appeal, even if only in lay terms, and must have regard to the legal possibili- ties for challenging the decision by this remedy. The grounds of appeal are (according to Article 237 of the GAPA) substantive, factual, procedural, or due to administrative silence at first instance. In Slovenian administrative law, ad- ministrative silence results in the presumption of a negative decision, allow- ing the parties to consider their case as rejected and pursue legal remedies accordingly (more in Dragos, Kovač and Tolsma, 2020). The matter is also fre- quently discussed in case law (e.g., Supreme Court case I Up 121/2021, 25 Oc- tober 2021). The procedural position of the accepted jurisdiction establishes justified grounds for the party to expect a decision within the prescribed time limits. If a decision is not made within these limits, the party may seek the le- gal remedies provided under Article 222(4) of the GAPA and Article 28 of the Administrative Dispute Act. The appeal is filed with the authority that issued the decision at first in- stance, which is due to examine its admissibility, standing, and timeliness; inadmissible appeals are rejected. The first-instance authority may also issue a substitute decision if it finds that the appellant’s case is justified. However, a high proportion of substitute decisions may indicate fundamental flaws in 11 For instance, Administrative Court case I U 854/2021-10, 8 September 2023. Parties cannot raise objections only in the action if they have missed the time limit for appeal or if they could have raised the facts already in the administrative appeal procedure (Administrative Court case I U 327/2020-21, 24 March 2021). 12 Payment of liabilities does not yet mean waiving the right to appeal (Administrative Court case I U 770/2018-13, 12 March 2019). Central European Public Administration Review, Vol. 22, No. 2/2024 237 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation first-instance procedures, which is contrary to the purpose of the GAPA rules and, in particular, the objective of the appeal and the substitute decision, even though the latter may be seen as an ADR tool (see Dragos and Nea- mtu, 2014). The substantive decision is to be taken by the second-instance authority, which may reject, dismiss or uphold the appeal, determining itself whether to refer the case back to first instance for a new decision (Article 251 of the GAPA). While the exhaustion of appeal is crucial for the administrative finality and, as a rule, enforceability (Articles 224 and 282 of the GAPA), finality (Article 158 of the Constitution, Article 225 of the GAPA) and hence immutability of deci- sions are conditional on the impossibility or exhaustion of judicial review of individual administrative acts. Most individual administrative acts can be sub- ject to administrative dispute under the Administrative Dispute Act, adopted in 2006 and amended in 2010, 2012, 2017, and 2023. However, an administra- tive dispute can even replace an administrative appeal in the sense of Article 25 of the Constitution, provided the grounds are equally broad (Avbelj et al., 2019). This judicial procedure is usually decided at first instance by the spe- cialised Administrative Court and at second instance (if an appeal is allowed) by the Supreme Court, which also decides on review and sometimes reopen- ing of procedure. Social matters fall under the jurisdiction of the Social Court. Judicial review cannot be ruled out but is contingent on the exhaustion of or- dinary remedies in administrative procedure. Courts rule by a single judge or in panels, but normally do not decide in administrative cases as these only in- volve supervision (a dispute of full jurisdiction is exceptionally possible only in specific situations, e.g., where constitutional rights have been violated). After the conclusion of an administrative or social dispute, if violations of the Con- stitution or the European Convention on Human Rights are alleged, the case may be pursued by filing a constitutional complaint with the Constitutional Court or bringing an action before the European Court of Human Rights. 4 Empirical Results on Administration Consultation Cases In order to identify key dilemmas in the GAPA implementation in administra- tive practice, an analysis of the AC cases, addressing particularly this institute was carried out. The analysis is twofold, firstly, statistical overview in made, followed by in depth analysis of the selected case studies in the discussion part. When comparing the number of AC cases by category, based on the stages of the procedure, there over 230 cases in the section on remedies, of which app. 120 in September 2024 concern appeals. Most cases are categorised into one or, at most, two primary categories. The majority are found in the section con- cerning communication between the parties to the procedure (approximately 300 cases), followed by the sections on Administrative Matter and Fundamen- tal Principles (about 270 cases) and Participants (around 250 cases). However, in Table 1, each case is assigned to only one dominating subcategory. These cases often reflect the rules and mechanisms from earlier stages of the proce- Central European Public Administration Review, Vol. 22, No. 2/2024238 Polonca Kovač dure since the appeal serves as a litmus test for the first-instance authority’s (mis)conduct. Analysing these cases thus provides a clear picture of practi- cal application of various rules, particularly those crucial for formal legality or the protection of the parties’ rights and public interest, which are considered absolute procedural grounds for appeal under Article 237 of the GAPA. As expected, correlations between the section on appeals and other sections are most frequent concerning absolute essential rules, such as the compe- tence and impartiality of officials, the legal standing of the parties and their representatives, the right to be heard (including issues related to the use of language), and the components of decisions necessary for reviewability. In administrative practice and case law, appeals based on procedural grounds are most frequently justified when there is a violation of the right to be heard (more in Kovač and Kerševan, 2020). The AC cases are further broken down by sub-categories based on subject matter (see Table 1) to provide a more detailed analysis and gain insight into the current dilemmas related to appeals. In addition to classifying cases by subject matter, an analysis has also been conducted regarding their com- plexity and whether they relate to the rules of the GAPA or specific proce- dural rules in sector-specific laws, which are often partial and constitution- ally questionable (by unclear supposed justified reason to differ from the GAPA is). These indicators provide feedback on the source and extent of the problem, as merely raising an issue does not necessarily indicate that the GAPA is inadequate. Central European Public Administration Review, Vol. 22, No. 2/2024 239 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation Table 1. Cases involving appeals by sub-category, complexity, and source of the problem No. Theme % of cases Complexity of the cases Problem source: the GAPA or leges speciales 1 Proceeding and costs in case of appeal 18 high GAPA 2 Admissibility of appeal 17 high sector-specific laws 3 Grounds for appeal (e.g., violation of the principle of hearing the party, impartiality, etc.) 16 high both 4 Waiver of the right to appeal and treating the appeal as an application 14 medium GAPA 5 Legal standing of the party/ appellant 11 high sector-specific laws 6 Correlation between appeal and other remedies, especially reopening of procedure 10 high both 7 Time limits (incl. administrative silence), administrative finality and enforceability 9 medium both 8 Jurisdiction in appeal 5 medium both Total 100 * In dark gray, there are topics emphasised that are attributed to GAPA (mainly) and rather com- plex, therefore requiring recodification. Source: Own. As shown by the table above, most cases concern three main thematic areas: − the procedure for assessing the merits of an appeal, including when a sub- stitute decision can be issued, when a second-instance decision is to be given, when the case is referred for a new procedure, what is the correct wording of the operative part of a second-instance decision, what are the costs of procedure in case of an appeal, etc.; − the admissibility of appeals on various legal grounds and for various types of act; − various grounds of appeal, including essential procedural errors. Central European Public Administration Review, Vol. 22, No. 2/2024240 Polonca Kovač These areas are highly complex, with dilemmas arising from a combination of sector-specific rules and the GAPA. The second group of cases, with app. 10 cases per sub-category, involves high- ly complex issues such as standing for appeal and the correlations between various forms of legal protection. Here, too, a combination of sector-specific rules and the GAPA is often at play. Specifically related to the GAPA are issues such as waiver of the right to appeal, the treatment of the appeal as an ap- plication, and the appeal procedure itself, including the competence and con- duct of the appellate authority in terms of timing and subject matter. There is no clear correlation between the degree of complexity and the source of the problem – i.e., whether the GAPA is inherently more or less complex. How- ever, it is logical that higher complexity tends to arise when both substantive or special regulations and the GAPA are involved. The use of legal remedies is generally the most frequently occurring concept in AC cases, as procedural errors often serve as grounds for employing such remedies. The term “appeal” appears more than 500 times among the 200 most-read cases in 2023 (Kovač et al., 2023). This is unsurprising given that responses to questions on various legal concepts (e.g., jurisdiction, parties, representatives, the right to be heard, service of documents, etc.) aim to demonstrate what certain misunderstandings mean in terms of illegality or the use of legal protection. The AC prepares responses on a principled level, making the connection between the treatment of rules and the consequenc- es of violations its guiding theme. On the other hand, the citation of multiple legal remedies for the same type of concept or error raises the question of the appropriateness of multiple legal mechanisms for the same inconsist- ency, particularly in terms of frequency. Furthermore, specific issues arise, such as the waiver of the right to appeal or the relationship between appeal and reopening of proceedings, which, according to comparative sources (e.g., Hoffman et al., 2014; Koprić, 2016; Đanić Čeko and Petrašević, 2020), leads to conclusions regarding systemic competition and an excessive number of legal remedies for ensuring legal certainty in administrative relationships. 5 Discussion and Recommendations on the GAPA Recodification The administrative appeal is a multifunctional legal remedy whose purpose is to protect the rights of the parties vis-à-vis the authorities and provide – through a generalisation of cases – a regulatory feedback loop leading to bet- ter sector-specific regulations. The administrative appeal is thus a constitu- tional guarantee of democratic governance, as well as a mechanism of good administration and effective public policies, as long as it is implemented in line with the purpose of regulation (Sever et al., 2016; Kovač and Ribič, 2022). Therefore, codification of the right to appeal is crucial for its effective imple- mentation. Central European Public Administration Review, Vol. 22, No. 2/2024 241 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation Collaborative PA is one of the foundations of modern society, being defined by societal and political processes, normative bases, as well as new theories aimed at solving “wicked problems” – i.e. complex and ambiguous interdisci- plinary challenges in governance (Kovač and Sever, 2015). Therefore, mecha- nisms such as AC provide excellent grounds to better administrative environ- ment based on the dilemmas opened and discussed. Looking at particularly challenging dilemmas that have been raised in recent years and which are also the most frequently visited, case studies highlight systemic issues that should be addressed by the GAPA either de lege ferenda or through appropriate interpretation of existing regulations. Namely, the AC measures and publishes the most frequently visited cases – mainly topical is- sues but also some ‘classic’ dilemmas – on a monthly and aggregated basis via Google analytics. About ten dilemmas, which are perceived in recent Slo- venian case law and are of high systemic importance, are highlighted as the most visited cases in 2023 in 2024. One of the cases that illustrate the necessary correlation between procedural institutions, particularly standing and service, as well as the time limits for ap- peal or enforceability, is the case where the (tax) authority sent a tax notice to a minor, followed by an enforcement order. The parents, as the minor’s legal representatives, were unaware of the liability until the child handed them the enforcement order against which they subsequently appealed. It is crucial to note that legal effects can only arise and rights can only be exercised by a person with the capacity to litigate. In this case, the authority had no grounds for enforcement because the enforcement order was not properly served if it was not served on the applicant’s legal representative. Namely, the GAPA ex- pressly provides for the legal representation of minors, as well as for service on minors through their parents, to which the authority must pay attention ex officio (Article 47, 49, 88, etc.). Thus, the time limit could not commence until (correct) service had occurred. Consequently, the appeal filed by the le- gal representative against the enforcement order should be upheld, and the enforcement procedure must be stayed. The enforcement order must first be served on the parent, and if the obligation is not fulfilled within the time limit running from the date of service on the legal representative, the order must be reissued. However, this case underscores the importance of correct implementation of the GAPA rather than highlighting its shortcomings. Other examples involve specific rule making in healthcare or social welfare, where the same act is issued with a statement of reasons to some participants and without it to others, under the claim that such a distinction is necessary for protecting sensitive data. For instance, while sector-specific laws confer legal standing on individuals whose health or social situation is at stake, as well as on employers, allowing them to participate in the procedure and ex- ercise rights such as lodging appeals, employers receive the decision without a statement of reasons. This practice is both unconstitutional and contradic- tory because an appeal cannot be effectively pursued by means of counter- arguments without a statement of reasons, i.e., in the absence of arguments Central European Public Administration Review, Vol. 22, No. 2/2024242 Polonca Kovač from the authority. If the law grants legal standing also to parties other than the main party, it must also provide them with (full) legal protection. There- fore, amendments to the GAPA are being considered to allow for a statement of reasons to be provided only when an appeal is announced, rather than in every case, which would alleviate the burden on authorities. Such considera- tions are justified, provided they do not undermine the right to an (effective) appeal. This means that the GAPA or a special law should specify that a state- ment of reasons is not required unless an appeal is announced, at which point the authority must provide a full statement of reasons for its decision. Partial regulation by sector-specific laws often leads to a problematic com- bined interpretation of lex specialis and the GAPA. One issue in such regard is which form of legal protection is applicable when the first-instance deci- sion-maker is a holder of public authority, a sui generis body. For instance, the Matura Examination Act applies when the National Matura Committee (i.e., the holder of public authority, which in this case is an independent body) decides whether a candidate can take the matura examination in two parts. Conversely, the GAPA applies when the line ministry handles appeals against decisions made by such body. According to the Matura Examination Act, can- didates who, for justified reasons, cannot participate in the matura or indi- vidual exams within the same examination period may take the matura in two parts. A decision thereon is taken by the National Matura Committee and the possibility of appeal is not explicitly excluded. However, administrative and case law13 have treated this as a single procedure rather than a two-stage de- cision-making process. The Committee and the Court view the Committee’s decision as administratively final, with no possibility for appeal, and the party can only seek legal protection through a non-suspensive action before the Ad- ministrative Court. Given the absence of specific rules in the lex specialis that exclude the right to appeal, and considering the exceptionality of excluding appeals compared to the usual two-instance system (a fundamental principle laid down in Article 25 of the Constitution and Article 13 of the GAPA), an ap- peal should be permitted and should have suspensive and devolutive effects. Here again, the issue is not with the GAPA itself but with the unsystematic regulation by the sector-specific law. This suggests that consideration should be given to limiting such interventions through the GAPA to ensure regula- tion that is more systematic. Similarly, when a sector-specific law, such as one governing inspections, stipulates that an appeal does not suspend the enforcement of a decision providing an obligation for the party (e.g., to remedy a situation), it remains unclear whether this also applies to other inspection decisions or procedural decisions as formal acts. Since the exclusion or non-suspensiveness of ap- peals affects the constitutional effectiveness of appeal, and given that a reg- ulation diverging from the GAPA must be justified by the specificities of the administrative field (Avbelj et al., 2019, commentary to Article 25 of the Con- stitution), such special rules should be interpreted restrictively. It is argued that even when a statutory basis for certain measures exists; a prerequisite 13 See Administrative Court cases I U 487/2015, 22 April 2015, I U 780/2015, 14 September 2016. Central European Public Administration Review, Vol. 22, No. 2/2024 243 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation for the non-suspensive effect is that such effect is expressly specified in the operative part of the decision.14 If the same law provides for various types of decisions in terms of content and type of decision-making (e.g., inspection measures and the granting of licences at the request of the parties), the au- thority may include a clause on the non-suspensiveness of appeals only in the operative part of decisions explicitly provided for by the law (e.g. measures but not licences). Again, the core issue is that sector-specific laws to often treat the GAPA as merely supplementary. However, this is not an absolute stance, as the GAPA frequently operationalises constitutional rights, includ- ing the right to appeal, and the Constitution prevails over sector-specific laws. Therefore, a sector-specific law may only introduce specific procedural rules where there is a compelling reason for differentiation, which should be clearly justified in the draft law. The 2007 GAPA amendment introduced the possibility of waiving the right to appeal (Article 229a) to expedite enforceability if all parties agree on the waiver. However, in practice, as suggested by the AC, dilemmas arise regard- ing this option, such as the possibility of waiving such a right in procedures initiated ex officio or even before the decision is served. A specific question is whether it is possible to waive the appeal between the time of dispatch of the decision for which the law provides a fiction of service (e.g., on the 15th day after dispatch) and before the fiction of service takes effect, if the party has actually received the decision before that time. In this case, although the GAPA (or sector-specific laws) favour the fiction of service, the question arises whether an actually proved service takes precedence over the fiction, since the latter is only provided for in the event of impossibility and evasion of ac- tual service. Furthermore, dilemmas concerning the waiver as an application by a party are often linked to time limits and the impact on administrative finality, enforceability, and finality. The waiver of appeal is effective as of the day of receipt of a written or oral waiver by the authority. Under the GAPA, such an application is deemed to have been lodged on the date it is received by the authority, unless it is time-stamped, in which case the date of lodge- ment is deemed to be the date of sending. Where there are multiple parties to the procedure, the first-instance decision becomes administratively final when the last party waives their right to appeal, as the waiver of the right to appeal cannot be revoked. At that point, both administrative finality and finality occur, since exhaustion of the appeal is a procedural prerequisite for the exercise of judicial protection. The fact that this procedure is a manda- tory predecessor of the judicial one and not an alternative means of dispute resolution seems to significantly impede its efficiency and effectiveness (Mol- dovan and Bucătariu, 2019). Given the importance of waiver, the GAPA should be amended in this part to require that authorities inform parties of all conse- quences of waiver, as well as of the procedure to be followed in the event of fiction of service and prior appeals or waivers. In practice, authorities often exceed the prescribed time limits for decision. In such cases, the GAPA provides for negative fiction, allowing the possibility 14 E.g., Supreme Court case U 638/92, 8 April 1993, and the following. Central European Public Administration Review, Vol. 22, No. 2/2024244 Polonca Kovač of filing an appeal or bringing an action (more in Dragos, Kovač and Holsma, 2020). One case presented in the AC involved a party questioning what steps to take if a requested (e.g. building) permit has not been issued even after six months from the date of the request. The dilemma is when the time limit for appeal begins to run and what grounds for appeal can be presented in such a case. Is it merely the failure of the first-instance authority to take a deci- sion within the prescribed time limit, or does it also include an essential error referred to in Article 237 of the GAPA? Additionally, is a weeks-long strike by staff members a legitimate reason for delay?15 Since a strike is not a reason for suspending the procedure, the time limits do not stand still, even though there is an instruction period for issuing a decision. After two months, admin- istrative silence can be claimed, allowing the party to lodge an appeal. This period, however, is not limited to 15 days, as is the case of an appeal against a decision, because no service has taken place in the case of administrative si- lence. Therefore, administrative silence lasts as long as the silence continues. In the event of administrative silence, no reason can be presented since the decision has not yet been made, nor can any arguments be put forward and challenged by way of the applicant’s counter-arguments. Thus, in an appeal on the grounds of administrative silence, the grounds are limited to the date on which the procedure was initiated (submission of a complete application) and the expiry of the time limit for a decision without a decision (decision on the merits or procedural decision staying the procedure). Moreover, where appropriate, risks to the legal or public interest due to the delay in taking a decision. Such cases highlight the recurring problem of administrative si- lence, a combination of regulatory and organisational-managerial factors, which could be at least partly solved by setting more realistic time limits for decision-making in individual administrative areas. While this is indeed mate- ria leges speciales, it could be the subject of an instructional reference in the GAPA. However, according to theory and constitutional case law, following Article 22 of the Constitution on equal protection of rights, there must be reasonable grounds for differentiation between sector-specific laws and the GAPA, which may include more complex factual and legal decision-making, e.g., in the case of the construction of complex buildings (Avbelj et al., 2019). In appeal procedures, applications are also made; the appeal itself is an ap- plication, as is the waiver or withdrawal (of the appeal). This means that the provisions of the GAPA on appeal and applications (Articles 229–259 and Ar- ticles 63–68) must be applied together. However, in practice this often leads to problems of interpretation of the GAPA. For example, the question arises as to how the authority should proceed if it receives an incomplete appeal for which the law provides for a limitation period of 15 days from the date of service of the decision. The law also provides for incomplete applications to be given an additional period of time for the applicant to complete the incom- 15 In Slovenia in spring 2024, there was a months-long strike indeed in several parts of the public administration over an outdated and disproportionate pay system. This strike has escalated in some units, beginning with refusals to work on Wednesdays and expanding to all days, although by law they are still required to carry out urgent tasks as defined by line ministries. Issuing building permits, which was the case here, is not considered an urgent task under these definitions. Central European Public Administration Review, Vol. 22, No. 2/2024 245 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation plete application. If the authority fails to invite the party or other person with legal standing to complete the application and rejects the appeal, it is act- ing prematurely and contrary to the rules of procedure, which is considered an essential procedural error. The question is whether any time limit under Article 67 of the GAPA or only the time limit within the limitation period for appeal under Article 235 of the GAPA is set in the call to complete the appli- cation. As regards the obligation to call for completion or the right to rectify deficiencies, it should be noted that the formal completeness of the appeal must be considered in the context of (non)eligibility for procedure. According to the GAPA, an appeal must indicate the decision that is being challenged (the authority that issued it, the number, and the date) and (the reasons) why it is being challenged. Thus, any time limit – as long as it is sufficient to allow completion – may be set for the first deficiencies. However, by completing the application, the appellant will not be able to raise additional or supple- mentary grounds of appeal, i.e. those not previously raised, or otherwise ex- tend (amend or supplement) the consideration of the appeal. As regards the withdrawal of an application, the GAPA (Articles 134 and 135, providing that in such case the procedure is stayed) does not expressly state that the provisions on withdrawal also apply to appeal. Consequently, only a combined interpretation leads to the conclusion that the withdrawal of an appeal is also permissible, whether at the stage of the formal examination of the appeal at first instance or in the context of the appeal procedure. Given the withdrawal of the request, there is no longer a basis for a decision on the administrative matter, since the existing will of the party with active standing is a prerequisite for the initiation, conduct, and conclusion of the administra- tive procedure (more in Kovač and Kerševan, 2020/2). The procedural deci- sion to stay the procedure is taken by the authority that considers the appeal once the withdrawal has been made. This means that a new appeal is allowed against the staying of the procedure at first instance; in fact, staying is not automatic, and the option of continuing the procedure must be examined in the public interest. Of course, when an appeal is withdrawn, the same applies as in the case of waiver – the decision becomes administratively final as well as final from that date, and judicial protection is no longer admissible. In this respect, the GAPA should also be amended, e.g. to explicitly indicate in the provisions on appeal the mutatis mutandis application of the provisions on ap- plications and to warn of the consequences of withdrawal of an appeal. Under the GAPA, a substitute decision is issued if the authority recognises the merits of the appeal at first instance (Article 242). In practice, however, several challenges arise in this respect, ranging from potential bias of the of- ficials if they have already conducted the initial procedure, namely whether they are allowed to assess the existence of grounds for a substitute decision and participate in such procedure. This is not controversial since the GAPA only provides for disqualification in the event of devolution at the level of the authority. Another issue appears when there is a coincidence of the appel- lant’s and the authority’s assessment, leading to the adoption of a substitute act. No regulation can address all possible scenarios, which often results in Central European Public Administration Review, Vol. 22, No. 2/2024246 Polonca Kovač the use of vague concepts that require subjective discretionary interpreta- tion on a case-by-case basis. However, a teleological interpretation suggests that a substitute decision should be given only if the appellant’s request is granted in its entirety. That decision is again open to appeal, which can rectify any deviations. In our view, the GAPA is sufficiently clear in this respect, but its provisions must be interpreted functionally. The only thing that should be added to this law is that it is also possible to issue a substitute procedural decision, not only a decision on the merits, which can replace, for example, even a decision in a procedure initiated ex officio if the measure is found to be unlawful on appeal. The fact that a procedure initiated ex officio is concluded by a procedural decision and not by a decision when there are no conditions for imposing an obligation is because such an act is given only formal finality. Therefore, there is no ne bis in idem and, in the public interest, e.g. in the case of inspections, the same matter can be dealt with again at any time (more in Kovač and Jerovšek, 2023). There are two other systemic issues where, in terms of legal certainty and equality before the law as well as efficiency of administrative decision-mak- ing, the GAPA should be amended, as the case law is also inconsistent. First, Article 251 of the GAPA provides that, in the event of a well-founded appeal, the second-instance authority decides the case itself or, using its procedural discretion, refers the case back to the first-instance authority for a new deci- sion. However, this distinction is unclear and various bodies, including the Om- budsman in 2017 and the National Council in 2018, advocate for an amend- ment of the GAPA requiring the appellate authority to decide the case itself to promote early enforceability. As regards the discretion of the appellate authority, it should be noted that the primary purpose of reviewing cases at two instances is review rather than decision-making, but there is nevertheless a systemic need to conclude procedures promptly. Therefore, the second- instance authority generally remedies the deficiencies arisen in first-instance procedures itself, potentially issuing a final decision on the appeal. However, if remedying the deficiencies requires reopening the entire first- instance procedure or a substantial part thereof, it is more effective for the first-instance authority to handle it (e.g., because its seat is closer to the resi- dence or seat of the party or the immovable property involved). This approach is employed when the second-instance authority believes the first-instance authority can address the deficiencies in procedure more quickly and effec- tively (Kovač and Kerševan, 2020/2, pp. 608ff; Kovač and Jerovšek, 2023, p. 245). There is no basis for the appellate authority to have to decide itself, since the function of the appeal is (only) to review the lawfulness of the con- duct of the first-instance authority, not to replace it, especially in cases of er- rors by the latter. The function of the appeal is, inter alia, to provide feedback to competent authorities. Namely, it is giving the second-instance authority a better picture of the (in)efficiency of the rules of sector-specific legislation, while the first-instance authority – when the appeal is justified and particu- larly when the case is referred for a new decision – receives guidance and instructions on how to act in future similar cases. Central European Public Administration Review, Vol. 22, No. 2/2024 247 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation The second issue concerns the dilemma of whether the facts and rules appli- cable in the reopened procedure should be those in force at the time when the now-annulled first-instance decision was issued, or those in force at the time of issuing the new decision, which could be years later. The argument for using the facts and rules from the original decision is that the appeal primar- ily serves to review compliance with the principles of lawfulness and equality of the parties in the original decision, precluding the parties from presenting new facts during the appeal (Article 238 of the GAPA). Conversely, the argu- ment for using the facts and rules in force at the time of the new decision is that the original decision is no longer valid. This aligns with the general rule that for each decision made, the facts and rules in effect at the time of that decision should be applied, especially if years have passed since the original decision. Additionally, the GAPA stipulates that if the appeal is well founded, the first-instance authority is to follow the appellate authority’s view on the conduct of the procedure but not necessarily on the facts of the case. Con- versely, most of the judgements on the reopening of procedure are very strict (see Kovač and Kerševan, 2020/2).16 This is an important systemic guideline, making it crucial for the GAPA to address both dilemmas explicitly. To wrap it up, from AC cases, Slovenian case law, and comparative trends (see Hofmann et al., 2014; Koprić et al., 2016; Đanić Čeko and Petrašević, 2020; Dragos, 2023), such as the ReNEUAL model rules it is evident that an over- abundance of remedies does not necessarily enhance the protection of the rights of the parties or the public interest. That is why the jurisdictions rath- er favour a single remedy for and a single remedy against the party due to the protection of the public interest (della Cananea, 2022, whereby national legislators may thus take model rules into account because they deem them more satisfactory than national law). Instead, it reduces legal certainty and creates dilemmas regarding competing legal remedies (e.g., appeal, reopen- ing of procedure, and restitutio in integrum for the same procedural errors). It would be therefore advisable to consider reducing the six remedies currently provided under the GAPA and additional remedies under leges speciales. As for concrete proposals for amendments or highlighting dilemmas that may present challenges in the application of the existing GAPA, particularly regarding significant procedural errors as grounds for appeal, are particularly as follows (cf. Kovač et al., 2023): 16 See Administrative Court case I U 1519/2011, 19 February 2013: “If, on the basis of new facts and new evidence, a different state of affairs is established in the new procedure, the first-instance authority is obliged, in accordance with the fundamental principle of substantive truth, to take account of the new state of affairs …”. Or case I U 1515/2018-9, 21 July 2020: “Reopening does not mean that the procedure starts anew but is rather intended to remedy the irregularities of the earlier decision, in accordance with the instructions given by the second-instance authority in the appellate procedure.” And Supreme Court case X Ips 109/2016, 16 January 2019: “If the tax authority at first instance finds a different state of affairs in the new procedure, it must also take a different legal decision, which may even be to the detriment of the individual.” Central European Public Administration Review, Vol. 22, No. 2/2024248 Polonca Kovač − Review of the set of absolute significant procedural errors and the questi- on of extending them to violations of procedural prerequisites under Arti- cle 129 of the GAPA.17. − When a party submits an incomplete appeal, it is not clear from the GAPA that the supplementation under Article 67 of the GAPA is only possible wi- thin the 15-day deadline; this can only be inferred from case law. − Article 237 of the GAPA does not clarify that there are also relative signifi- cant procedural errors and what qualifies as such errors. − Article 238 of the GAPA does not clarify that the party can only challenge the operative part of the decision. Although it follows logically that only the operative part becomes final, enforceable, and res judicata, and that the decision stems from the operative part. − Silence of the authority – clearly state what applies: a minority holds the view that the first instance can issue a decision even after an appeal has been filed; the majority view, however, does not allow such an action given the appeal’s devolutive effect. − Clarify which facts to consider in repeated proceedings or in the reopening of proceedings, i.e., those existing at the time of the issuance of the origi- nal decision or in the new proceedings (even after several years). Finally, an analysis of AC cases in terms of digitalisation or automated deci- sion-making reveals a relative absence of such cases in the appeals section, though they are present in other sections of AC, particularly in relation to handling applications, formality of acts, and service. A notable issue in such regard is the legal effects and liability of officials when automated certificates are issued, which poses restrictions on automated decision-making and sub- sequent appeals (cf. Galetta and Hoffman, 2023; Benjamin, 2023). AC cases in- volving automated issuing of certificates reveal that the existing law does not support the purely automatic issuance of administrative acts, requiring deci- sions and certificates to be issued by competent, authorised, and impartial officials. Therefore, automated certificates do not have the same legal status and effects as those signed by an authorised official (e.g., an automated cer- tificate does not have the force of a public document with presumption of truth of its contents, although it may nevertheless serve as evidence). Despite advanced automation – eGovernment, eTaxes, eWelfare, etc. – and use of artificial intelligence in social transfers and agricultural subsidies, the GAPA lacks adequate provisions in this respect, thus lagging far behind. The GAPA allows for the automated issuing of decisions, but only under the provi- sion of Article 210 specifying that, if a decision is generated automatically, it may contain a facsimile instead of the official’s signature or the authority’s stamp. Yet, this provision has never been evaluated regarding the fact that, 17 Here, the violation of ne bis in idem would be particularly relevant since the rest is at least indirectly covered by other grounds for appeal (e.g., the issue of party status; missed dead- lines) or nullity (e.g., if the procedural prerequisite of an administrative matter is not met, but it falls within the jurisdiction of courts, or it is not possible to decide in administrative proceedings at all). Central European Public Administration Review, Vol. 22, No. 2/2024 249 Challenges in Exercising the Right to Appeal – The Case of Slovenian Administrative Consultation with “automatic” generation of decisions, decision-making is effectively trans- ferred to the information system. Moreover, an e-signature actually misleads by implying that the decision is based on the will of the person legally author- ised to issue it (Articles 28, 29 of the GAPA), rather than the “judgment” of the information system. The law also does not provide for the possibility that an information system could legally substitute the decision-making authority of a competent (physical) person. It is therefore imperative to adopt appropri- ate regulations, considering the liability for accurate content and limitations of information under Articles 5, 16 and 22 of the GDPR. This will ensure the regulation of administrative procedures in compliance with EU law, whether through a single regulation or through effective national measures (della Cananea, 2022, listing various national approaches, all with remedies as the key materia). Therefore, even in the digital age, they should be standardised to avoid having different appeal procedures and thus specialised legal sup- port and supranational judicial review needed. 6 Conclusion An analysis of cases through the AC project, which has been addressing ad- ministrative procedural issues in practice since 2009, reveals that in recent years, particularly 2023 and 2024, around one hundred dilemmas have arisen in relation to appeals. In light of the research questions posed in the introduc- tion, the conclusions of the analysis are as follows: first, the main dilemmas in Slovenian administrative practice concerning appeals or those that escalate during the appeal procedure stem from a combination of rules regulating ap- plications, service, time limits, application of various remedies, and adminis- trative finality as well as enforceability. Second, many problems arise due to only partial sector-specific rules, resulting in issues of complementarity be- tween these rules and the GAPA. This is evident in questions of admissibility of an appeal and jurisdiction. It is worth considering whether the GAPA should specifically regulate when and to what extent-specialised rules are permissi- ble. Third, there are frequent dilemmas concerning the waiver of the right to appeal in relation to the effects of finality and lack of access to justice or non- suspensiveness. These situations can render an appeal ineffective and should be addressed by the GAPA. Fourth, the systemic shortcomings of the current GAPA include competing legal remedies, the definition of the relationship be- tween the first- and second-instance authorities, the use of facts and rules over time, and the gap created by the under-regulated yet increasingly in- tense digitalisation of administrative procedures. The national legislature should advance on these issues, also considering com- parative solutions within the EU. Furthermore, Slovenia is beginning to see potential reductions in rights related to legal protection linked to digitalised or automated decision-making. This is undoubtedly a universal challenge that no country can escape. Based on experience, it is better to anticipate difficul- ties than to seek solutions post festum. In conclusion: in a democratic system, particularly in administrative relations where the authority or public interest Central European Public Administration Review, Vol. 22, No. 2/2024250 Polonca Kovač supersedes the rights of the parties, the right to appeal is a fundamental right and an international legal or constitutional guarantee. It should, therefore, be adequately regulated to minimise the practical difficulties in implementing its rules. Only in this way can good governance as a concept of effective public policy be guaranteed, while respecting democratic postulates. Acknowledgement: The financial support from the Slovenian Research Agency is acknowledged, for the programme no. P5-0093 The Development of an Ef- ficient and Effective Public Administration System in Slovenia and the EU and project no. V5-3282 Theoretical and Practical Aspects of Modernisation of the Administrative Procedure in Slovenia. 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Za manj cigaretnih ogorkov na javnih mestih zadošča že en sam namig Artsiom Klunin, Matúš Sloboda, Emília Sičáková-Beblavá, Patrik Pavlovský Namen prispevka je raziskati, kako bi lahko javna uprava zmanjšala število cigaretnih ogorkov na javnih mestih. Zavrženi cigaretni ogorki predstavljajo težavo za sleherno lokalno samoupravo, rešitve pa so bodisi težko izvedljive ali drage. Prispevek prikazuje, kako lahko pri tem pomaga znanost o vedenju, natančneje igrifikacija, poudarjanje in sugestija. Zasnova/metodologija/pristop: V sodelovanju z lokalno samoupravo smo prek dveh kvazi eksperimentov na terenu proučevali učinkovitost preprostih vedenjskih ukrepov za preprečevanje odmetavanja cigaretnih ogorkov na jav- nih mestih. Študija je preizkusila tako učinkovitost enega samega vedenjske- ga ukrepa kot tudi učinek kombinacije ukrepov. V prvem primeru smo najprej poskusili s sugestijo (nalepkami, katerih namen je bil spodbuditi določene asociacije in odzive), v drugi fazi pa smo nalepkam dodali še igro z glasovalni- mi skrinjicami, kjer so uporabniki svoje »glasove« oddajali v obliki ogorkov. V drugem kvazi eksperimentu smo želeli poudariti, da je odmetavanje ogorkov nezaželeno oziroma »kaznivo«, kar smo ponazorili tako, da smo mesto, kjer je bilo veliko ogorkov, označili kot »kraj zločina«, nato pa temu dodali še opozo- rila o toksičnosti oziroma nevarnosti za okolje, da bi kadilce odvrnili od odme- tavanja cigaretnih ogorkov. V obeh kvazi eksperimentih smo prikazali stanje pred uvedbo omenjenih ukrepov in po njej. Ugotovitve: Rezultati kažejo, da je lahko že en sam ukrep dovolj za dosego želenih vedenjskih sprememb, medtem ko podkrepitev njegovega učinka z nadaljnjim ukrepom, ki sledi v razmeroma kratkem času, ne prinese dodatnih statistično značilnih učinkov. Izvirnost/vrednost: Študija prispeva k raziskavam na področju javne uprave, zlasti z uporabo vedenjskih in eksperimentalnih pristopov v proučevanju jav- nih politik. Čeprav je tovrsten pristop vse bolj priljubljen, še vedno primanjkuje dokazov iz terenskih (kvazi) eksperimentalnih študij o učinkih vedenjskih inter- vencij na zmanjšanje onesnaževanja na javnih mestih. Ključne besede: smetenje, cigaretni ogorki, namig, igrifikacija, sugestija, poudarjanje Central European Public Administration Review, Vol. 22, No. 2/2024254 Povzetki 2. Dejavniki privlačnosti in odbojnosti: kako konkurenčna je danes madžarska javna uprava? Csilla Paksi-Petró Namen: Staranje javnih uslužbencev je največja težava javnih institucij v Evro- pi, delodajalci pa vse težje ponujajo ustrezno motivacijo in privlačne delovne pogoje za različne generacije. Raziskave v zadnjih desetletjih se osredotočajo na orodja ter kadrovske in komunikacijske strategije, s katerimi bi institucije zadržale nadarjeno delovno silo in okrepile njeno zvestobo. Študija s pomočjo pregleda literature proučuje konkurenčnost madžarske javne uprave in skuša ugotoviti, kako privlačna na madžarskem trgu dela je kariera v javni upravi. Prispevek na koncu poda nekaj predlogov, kako lahko vlade proaktivno prite- gnejo in zadržijo nadarjeno naslednjo generacijo javnih uslužbencev. Zasnova/metodologija/pristop: Prispevek je opisen in sintetičen ter temelji na obsežnem, celovitem poznavanju in sistematizaciji domače in mednarodne literature in zakonodaje. Ugotovitve: Največji izziv pri upravljanju s kadri v javni upravi je nadomesti- tev starejše generacije, prenos znanja in praktičnih izkušenj ter pridobivanje generacij Y in Z z ustvarjanjem njim privlačnih delovnih pogojev. Prispevek na podlagi literature in prakse povzema možnosti za reševanje omenjenih ka- drovskih izzivov ter predlaga rešitve za vprašanja zaposlovanja in ohranjanja zaposlenih. Praktične posledice: Javna uprava od nekdaj velja za posebno področje, ka- terega načela delovanja in procesi se bistveno razlikujejo od tistih v zasebni sferi. Obsežna strokovna literatura z razlago generacijske menjave proučuje kadrovska orodja, potrebna za pridobivanje in ohranjanje zaposlenih. Neka- tera od predlaganih orodij in ukrepov se lahko razlikujejo od tradicionalne organizacijske kulture javne uprave. Prispevek postavlja temelje za naslednjo empirično fazo raziskave, v kateri bodo raziskani glavni dejavniki, ki zaposlene v javni upravi motivirajo in spodbujajo njihovo predanost. V tej fazi se bo tudi proučilo, ali se omenjeni dejavniki razlikujejo od tistih v zasebnem sektorju in kako se na tem področju kažejo edinstvene značilnosti javne uprave. S pred- stavitvijo razvojnih trendov na Madžarskem želi ta študija prispevati k znan- stvenemu diskurzu o posebnostih tega vprašanja v Srednji in Vzhodni Evropi. Ključne besede: kariera v javni upravi, konkurenčnost, kadrovski potencial, pomanj- kanje delovne sile 3. Pravna država in upad demokracije v času izrednih razmer – primer Češke republike Jana Janderová Namen: Prispevek analizira vpliv izrednih razmer, razglašenih med pandemijo covida-19, na javno upravo, zlasti na Češkem. Njegov namen je razumeti pove- Central European Public Administration Review, Vol. 22, No. 2/2024 255 Povzetki zavo med pravno državo, legitimnostjo ukrepov, sprejetih med pandemijo, in pripravljenostjo javnosti, da te ukrepe spoštuje. Zasnova/metodologija/pristop: Uporabljena je primerjalna študija, ki prou- čuje skladnost ukrepov ob pandemiji s temeljnimi načeli pravne države – za- konitostjo, sorazmernostjo in legitimnimi pričakovanji. Študija se osredotoča na ukrepe, ki pravice (npr. pravico do izobraževanja) omejujejo, in tiste, ki, na- sprotno, pravice dodeljujejo (npr. nadomestila). Metodologija vključuje analizo ustrezne sodne prakse, upravne prakse in podatkov iz več podatkovnih zbirk. Ugotovitve: Študija razkriva pogoste kršitve načel zakonitosti in sorazmerno- sti, tako pri omejevanju kot pri dodeljevanju pravic. Ugotovitve kažejo, da se je pripravljenost javnosti za upoštevanje ukrepov zmanjšala, če so bili ti zaznani kot protizakoniti. To se je pokazalo tudi na Češkem, kjer so se ob vztrajanju večine ukrepov jeseni 2020 in spomladi 2021 razmere poslabšale. Praktične posledice: Ugotovitve te študije imajo pomembne posledice za javno upravo in oblikovanje politik, zlasti v času krize in razglašenih izrednih razmer. Rezultati poudarjajo pomen ohranjanja pravne države in zagotavljanja legitimnosti ukrepov. Študija nakazuje, da lahko neupoštevanje teh načel pov- zroči upad javnega zaupanja in sodelovanja, kar krizo še dodatno stopnjuje. Izvirnost/vrednost: Prispevek ponuja edinstven pogled na obvladovanje pan- demije covida-19, saj povezuje pravno državo in spoštovanje ukrepov s strani javnosti. Vladam in oblikovalcem politik ponuja dragocen vpogled v pomen ohranjanja zakonitosti in sorazmernosti pri ukrepih ter v morebitne posledice neupoštevanja teh načel. Izvirnost študije se kaže v tem, da celovito analizira tako primere krčenja pravic (npr. omejitev pravice do izobraževanja) kot pri- mere dodeljevanja pravic (npr. nadomestila). Tovrsten pristop omogoča celovi- tejše razumevanje učinka vladnih ukrepov med pandemijo. Ugotovitve študije prispevajo k širšemu razumevanju kriznega upravljanja in vloge javne uprave. Ključne besede: nadomestilo, upad demokracije, izredne razmere, sorazmernost, pravica do izobraževanja, pravna država 4. Vloga avtomatiziranega odločanja v sodobnem upravnem pravu: izzivi in posledice za varstvo podatkov Grega Rudolf, Polonca Kovač Namen: Vključevanje umetne inteligence v avtomatizirano odločanje je prelo- men trenutek za javno upravo. Prispevek obravnava uvedbo sistemov avtoma- tiziranega odločanja v upravne postopke, zlasti njihov vpliv na varstvo osebnih podatkov in temeljna načela upravnega prava. Zasnova/metodologija/pristop: Študija s pomočjo deskriptivne, normativ- ne in dogmatske metode proučuje nedavne zakonodajne pobude in analizira izbrane primere uporabe avtomatiziranega odločanja v Sloveniji in tujini. Ob tem podrobneje analizira odločitev Sodišča EU iz leta 2023 v zadevi Schufa. S Central European Public Administration Review, Vol. 22, No. 2/2024256 Povzetki kombinacijo teoretičnih vidikov in praktičnih spoznanj študija ponuja primer- jalno analizo evropskega in slovenskega zakonodajnega okvira. Ugotovitve: Prispevek presoja vpliv avtomatiziranega odločanja na ključna načela upravnega prava in varstva podatkov ter osvetljuje zakonodajne, or- ganizacijske in tehnološke spremembe, potrebne za zagotovitev skladnosti avtomatiziranega določanja z obstoječo zakonodajo. Akademski doprinos k znanosti: Prispevek ponuja dragocene smernice za upravnopravno stroko in tako izboljšuje razumevanje uvajanja tehnologij av- tomatiziranega odločanja v upravno prakso. Njegove ugotovitve so obliko- valcem politik in zakonodajalcem lahko v pomoč pri oblikovanju predpisov, ki vključujejo prednosti umetne inteligence, hkrati pa zagotavljajo, da so ti siste- mi ustrezno nadzorovani. Raziskovalne/praktične/družbene posledice: Uvedba avtomatiziranega od- ločanja mora biti usklajena s pravnimi načeli, da se ohranijo preglednost, od- govornost in varstvo temeljnih pravic. Prispevek poudarja, da je pomembno ne le razumeti pravne posledice, temveč tudi zagotoviti, da tehnologije avto- matiziranega odločanja spoštujejo standarde dobrega upravljanja. Izvirnost/vrednost: Študija premika meje uveljavljenih pravnih okvirov in od- pira kritična vprašanja o tem, kako temeljna načela upravnega prava in varstva podatkov prilagoditi novim tehnologijam. Umetno inteligenco vsekakor velja izkoristiti za povečanje učinkovitosti, hkrati pa je treba zagotoviti, da inovacije spoštujejo pravice posameznikov, varujejo javni interes ter podpirajo standar- de dobre uprave in dobrega upravljanja. Ključne besede: upravno pravo, upravni postopki, umetna inteligenca, avtomatizira- no odločanje, dobra uprava, pravna načela, varstvo osebnih podat- kov 5. Izzivi umetne inteligence v upravnem pravu in potreba po posebnih pravnih sredstvih: analiza poljske regulative in prakse Jowanka Jakubek-Lalik Odločanje v upravnih postopkih se sooča s številnimi novimi izzivi. Javni organi odkrivajo prednosti sistemov umetne inteligence (UI) za izboljšanje učinkovi- tosti in natančnosti upravnih postopkov, ob tem pa se pojavljajo nove dileme, zlasti v zvezi z odgovornostjo, varstvom podatkov in splošnimi načeli uprav- nega prava. Koristi UI je zato treba presojati skupaj s povezanimi tveganji in grožnjami ter uvesti ustrezna sredstva za nadzor in spremljanje. Uporaba UI narašča tudi v poljski javni upravi, prav tako zanimanje za poe- nostavitev upravnih postopkov in avtomatizacijo izdajanja upravnih odločb. Vendar je treba ta razvoj skrbno spremljati, zlasti z vidika pravic državljanov in morebitnih napak, ki so drugačne od tistih v klasičnih, neavtomatiziranih upravnih postopkih. Central European Public Administration Review, Vol. 22, No. 2/2024 257 Povzetki Namen: Prispevek obravnava izzive uvajanja orodij UI v upravno pravo in po- stopke ter potrebo po posebnih pravnih sredstvih. Postavlja se vprašanje, ali so pravna sredstva enaka kot v klasičnih upravnih postopkih in ali instrumenti iz obstoječe zakonodaje zadostujejo za zagotovitev ustreznega varstva pravic državljanov? Uporabljena metodologija vključuje analizo zakonodaje in politik, študijo prak- tičnih primerov ter proučitev spoznanj iz razprave na konferenci EGPA 2024. Ugotovitve se osredotočajo na analizo obstoječe zakonodaje tako z vidika njene uporabe kot praktičnega izvajanja, zlasti v luči uporabe UI v javni upravi. Najpomembnejši vidik je povezava med uporabo orodij UI in morebitno potre- bo po oblikovanju novih ali prilagoditvi obstoječih pravnih sredstev na vseh področjih javne uprave, s posebnim poudarkom na izzivih avtomatiziranega odločanja. Praktične posledice zadevajo nove izzive, ki jih UI predstavlja za odločanje v upravnih postopkih. S praktičnimi primeri prispevek obravnava tudi, v kolikšni meri je treba pravna sredstva prilagoditi orodjem UI in kakšen je njihov vpliv na človekove pravice, kar bi zahtevalo ustrezne zaščitne ukrepe. Te posledice niso pomembne le s pravnega vidika, temveč tudi za pravne strokovnjake in javno upravo kot celoto. Izvirnost in vrednost prispevka je v razpravi o izzivih upravnih postopkov in pravnih sredstev v dobi UI. Ta tema je vsekakor aktualna, saj bo uporaba UI ne- dvomno zaznamovala prihodnost postopkov in drugih dejavnosti javne uprave. Ključne besede: avtomatizirano odločanje, upravno pravo, upravni postopki, umetna inteligenca, poljska javna uprava 6. Danska digitalna zasnova in postopna erozija tehnološko nevtralnega upravnega prava Michael Gøtze Namen: Danska je v digitalizacijski tekmi vodilna med državami EU. Poleg uveljavljenih mehanizmov samokontrole, s katerimi zavira nepremišljene di- gitalizacijske ukrepe, služi tudi kot navdih drugim državam, ki si prizadevajo za pospešeno uvedbo digitalnih rešitev. Intenzivna digitalizacija danske javne uprave pa poraja tudi pomembno pravno vprašanje: ali digitalizacija spreminja temeljno vsebino splošnega upravnega prava? Namen tega prispevka je zato proučiti obstoječo dansko doktrino tehnološko nevtralnega prava, po kateri di- gitalizacija ne posega v materialno pravo in nima negativnega vpliva na pravi- ce državljanov. Pristop: Razprava o omenjenih vprašanjih temelji na pravnih virih, kot so dan- ski politični sporazum o digitalno usmerjeni zakonodaji, primeri sektorske zakonodaje (davčna zakonodaja) ter prakse in priporočila parlamentarnega varuha človekovih pravic. Central European Public Administration Review, Vol. 22, No. 2/2024258 Povzetki Ugotovitve: Konceptualna ugotovitev prispevka je, da doktrina tehnološko nevtralnega prava ni povsem upravičena. Leta 2024 je danska zakonodaja vse bolj zasnovana tako, da je že od samega začetka digitalno združljiva, kar je po- memben premik. Ta novi zakonodajni koncept lahko poimenujemo digitalno usmerjena zakonodaja, kar označuje zakonodajo, zasnovano tako, da je v svojih formulacijah in konceptih že vnaprej pripravljena na preoblikovanje v digital- ne rešitve. Poleg tega prispevek ugotavlja, da ima lahko proaktivna digitalna usmerjenost nove ureditve (zakonov in splošne upravne uredbe) svojo ceno, saj lahko zmanjša prožnost in prilagodljivost, ki sta ključni za pravno državo. Praktične posledice: Namen prispevka je opredeliti praktične – in morda ne- gativne – posledice, značilne za digitalno usmerjeno zakonodajo. V ta namen proučuje različne scenarije pravne države in pravne varnosti. Ključni izziv je doseči pravično ravnovesje med predpisi z odprto in diskrecijsko zasnovo ter tistimi z zaprto zasnovo, ki temeljijo na pravilih in se opirajo na objektivna merila. Čeprav digitalno usmerjena zakonodaja očitno povečuje upravno učin- kovitost in spodbuja enako obravnavo v vseh sektorjih in čeprav se Danska dosledno uvršča v sam vrh digitalnega napredka v Evropi, trenutna digitalna reforma odpira tudi številna vprašanja. Reforma bi lahko pomenila korak na- zaj v smeri bolj poenostavljene pravne strukture, ki pa v celoti ne upošteva raznolik med državljani in podjetji, za katere velja danska zakonodaja. Zaradi postopne erozije tehnološko nevtralnega upravnega prava prispevek poziva h konkretni razpravi o ravni pravic državljanov v razmerju do javnih organov. Morda bo treba na novo zasnovati tudi samo upravno pravo in ga narediti bolj usmerjenega v vladavino prava. Vrednost: Prispevek ponuja na pravni državi temelječ komentar o trenutnih političnih pritiskih za digitalno usmerjeno dansko zakonodajo. Ključne besede: digitalno usmerjena zakonodaja, pravna varnost, varuh človekovih pravic, pravna država, tehnološko nevtralno pravo 7. Oblikovanje upravnega delovanja (pravne oblike): zakonodajni pristop Sára Hrubešová Namen: Na pravne oblike v javni upravi močno vplivajo načela dobre uprave. Po češki zakonodaji je parlament tisti, ki oblikuje zakonske podlage za delova- nje javne uprave, zato je nujno posvetiti pozornost zakonodajnemu pristopu k uzakonjanju s tem povezanih pravnih oblik. Prispevek obravnava pomanjklji- vosti zakonodaje, povezane z uzakonjanjem pravnih oblik javne uprave, zlasti prek načel pravne varnosti in predvidljivosti. Zasnova/metodologija/pristop: Prispevek analizira češke pravne norme, ob- stoječo pravno doktrino in sodbe upravnega sodišča v zvezi z uzakonjanjem pravnih oblik javne uprave. Analiza vodi do kategorizacije zakonodajnih teh- nik, s katerimi je uzakonjena pravna oblika delovanja javne uprave. Prispevek vključuje tudi študijo primera, ki obsega kvalitativno analizo zakonodajnega Central European Public Administration Review, Vol. 22, No. 2/2024 259 Povzetki postopka v konkretnem primeru na podlagi javno dostopnih zapisov parla- mentarnih razprav med zakonodajnim postopkom. Ugotovitve: V obravnavanem primeru v zakonodajnem postopku ni bilo ustre- zne razprave o posledicah odprave izrecne določitve pravne oblike. Prav tako ni bil zabeležen primer, v katerem bi ustavno sodišče v vlogi negativnega zako- nodajalca razveljavilo zakon, ker v njem ni bila izrecno določena pravna oblika, bodisi ker je bila odstranjena ali ker je že od samega začetka sploh ni bilo. Akademski doprinos k znanosti: Prispevek poudarja, da morajo biti za učin- kovito delovanje javne uprave kot dobre uprave pravila, ki urejajo njeno de- lovanje, jasno opredeljena. Ugotovitve spodbujajo zakonodajalce, da pri sprejemanju zakonov zagotovijo ustrezne razprave o pravni obliki upravnega delovanja. Takšna strokovna razprava v zakonodajnem postopku je nujna za zagotovitev jasnosti zakonov, na podlagi katerih javna uprava deluje v dolo- čeni pravni obliki. Obhajanje zakonodajnega postopka ali opustitev ustrezne razprave nesorazmerno vpliva na pravno varnost in predvidljivost. Izvirnost/vrednost: V prispevku so predstavljeni argumenti, ki poudarjajo ne- izpodbitno vlogo zakonodajalca pri oblikovanju jasnih pravil za izvajanje javne uprave in posledično omogočajo delovanje javne uprave kot dobre uprave. Izpostavljen je pomen jasnega sklicevanja na pravno obliko javne uprave v za- konu. Kategorizacija poimenovanja pravne oblike pomaga pri prepoznavanju vzorcev in trendov, izpostavljanju pomembnih vprašanj in usmerjanju raziskav na specifična pravna vprašanja. Ključne besede: upravno procesna pravila, ustavno sodišče, dobra uprava, parla- ment, zakonodajni postopek, pravne oblike javne uprave 8. Obravnava dezinformacij skozi priporočila javne uprave – češke izkušnje Tomáš Svoboda Namen: Namen prispevka je kritična ocena prakse javne uprave, po kateri ta na naslovnike ne vpliva z uporabo klasičnih oblik javne uprave (npr. z upravni- mi odločbami), temveč s podajanjem priporočil tretjim osebam, ki nato izvaja- jo regulativne posege. Oblikovanje/metodologija/pristop: Prispevek uporablja kvalitativno razisko- valno metodologijo in študijo primera, pri čemer se osredotoča na analizo spe- cifične situacije v češkem pravnem okolju (vključno z obstoječo sodno prakso), ki jo obravnava kot širšo problematiko, ki se lahko pojavi tudi drugod in zato zahteva splošnejšo rešitev. Ugotovitve: Besedilo kritično obravnava ugotovitev iz sodne prakse češke- ga upravnega sodišča, ki navaja, da priporočila javne uprave, če niso pravno zavezujoča, niso predmet sodnega nadzora. Na prvi pogled ta ugotovitev na- kazuje, da priporočila javne uprave ne poznajo pravnih omejitev. Vendar je ta interpretacija vprašljiva, zlasti z vidika načela pravne države. Posebej skrbi Central European Public Administration Review, Vol. 22, No. 2/2024260 Povzetki model regulacije, kjer javna uprava (država) svoje cilje dosega z vplivanjem na tretje osebe. Praktične posledice: Zmotno je misliti, da nezavezujoče dejavnosti javne uprave ne morejo posegati ali drugače vplivati na pravice naslovnikov javne uprave, politična odgovornost na tem področju pa je, zlasti zaradi pomanj- kljive transparentnosti, neustrezna. Priporočljive so torej spremembe zako- nodaje in večja naklonjenost upravnih sodišč netradicionalnim oblikam javne uprave. Izvirnost/vrednost: Tematiko lahko štejemo za novost, saj ji doslej v literaturi ni bilo posvečeno prav veliko pozornosti. To še posebej velja za domačo, češko literaturo, na kateri prispevek temelji. Čeprav je bila tematika obravnavana v okviru prava EU v razpravah o naravi t. i. mehke zakonodaje (soft law), se s to vrsto zakonodaje (ki jo lahko razumemo kot vrsto normativnih, a nezavezujo- čih pravnih aktov) v resnici ne sklada dobro, zaradi česar se je mogoče le delno sklicevati na pravo EU. Tema prispevka je zato izvirna, saj je bolj povezana s splošnimi načeli javne uprave kot s pravom EU. Ključne besede: upravno sodstvo, nezavezujoč akt, javna uprava, priporočilo, pravna država, mehka zakonodaja 9. Ureditev pristojnosti upravnega sodstva in delitve na javno in zasebno pravo Krisztina F. Rozsnyai Namen: Prispevek proučuje dihotomijo med javnim in zasebnim pravom z vidi- ka dostopa do sodnega varstva, zlasti porazdelitve pristojnosti med različnimi sodišči in razsodišči. Zasnova/metodologija/pristop: Študija uporablja pravno analizo normativ- nih besedil in pravno primerjavo. Ugotovitve: Nenehna širitev upravnega sodstva zahteva bolj diferencirano, a hkrati splošno ureditev dostopa do sodnega varstva. Akademski doprinos k znanosti: Analiza obravnava politične možnosti razde- litve pristojnosti med civilnimi in upravnimi sodišči ter morebitno ustanovitev specializiranih sodišč. Izvirnost/pomen/vrednost: Analiza regulativnih pristopov pomaga zakono- dajalcem izpolniti zahteve po pravočasnosti in učinkovitosti sodnega varstva ter se spopasti z izzivi združevanja instrumentov javnega in zasebnega prava za oblikovanje ureditve, ki lahko zagotovi učinkovito sodno varstvo in dosle- dnost sodne prakse. Ključne besede: dostop do sodnega varstva, upravno sodstvo, porazdelitev pristojno- sti, delitev na javno in zasebno pravo, specializirana sodišča in razso- dišča Central European Public Administration Review, Vol. 22, No. 2/2024 261 Povzetki 10. Javno in/ali zasebno? pravna sredstva zoper različne odločitve s področja socialnega varstva na Madžarskem István Hoffman Namen: Prispevek obravnava večplastni sistem pravnih sredstev na podro- čju socialnega varstva na Madžarskem. Najprej analizira javnopravna pravna sredstva, povezana z obveznostjo zagotavljanja javnih storitev, zlasti pravna sredstva zoper normativne instrumente za zagotavljanje javnih storitev (npr. odloki o pristojbinah in standardih storitev) in opustitev dolžnosti javnih orga- nov, ki so dolžni zagotavljati te storitve, nato pa se posveti pravnim sredstvom zoper odločitve in opustitev dolžnosti izvajalcev teh storitev. Zasnova in pristop: Madžarska zakonodaja storitve socialnega varstva razlaga kot zasebnopravna razmerja z deloma javnopravno ureditvijo. Javnopravno pravno sredstvo zoper odločitve izvajalcev storitev so pritožbe, ki jih urejajo področni (javnopravni) predpisi. Raziskava proučuje sistem pravnih sredstev z uporabo metod pravne študije, ki temeljijo na dogmatični analizi, in vključuje analizo sodne prakse, in sicer odločitev madžarskih sodišč o pomembnejših javnopravnih pravnih sredstvih. Ugotovitve: Na podlagi dogmatične in empirične analize študija razkriva, da madžarska sodna praksa javnopravna pravna sredstva, zlasti pritožbe, razla- ga različno. Po spremembi pravne ureditve se je razlaga premaknila v smeri pristopa, ki temelji na civilnem pravu, ostajajo pa določene napetosti, zlasti v primerih opustitve. Praktične posledice: Članek predlaga zakonodajno rešitev za ublažitev teh napetosti in priporoča, da se odločitve glede storitev socialnega varstva for- malizirajo kot javnopravne. Izvirnost: Prispevek temelji na dogmatični analizi sistema pravnih sredstev na področju socialnega varstva in kot novost ponuja poglobljeno analizo madžar- ske sodne prakse na tem področju. Ključne besede: upravno pravo, Madžarska, sodni postopek, zasebno pravo, javno pravo, pravna sredstva, storitve socialnega varstva 11. Izzivi pri uresničevanju pravice do pritožbe – primer upravne svetovalnice Polonca Kovač Namen: Prispevek proučuje sistemske izzive v slovenski upravni praksi, ki izha- jajo iz neustrezno urejene pravice do pritožbe po Zakonu o splošnem uprav- nem postopku (ZUP). V ta namen je bila opravljena analiza Upravne svetoval- nice, ki deluje od leta 2009. Študija vključuje analizo vsebine, kompleksnosti in utemeljenosti ponavljajočih se dilem kot podlage za novo kodifikacijo ZUP. Central European Public Administration Review, Vol. 22, No. 2/2024262 Povzetki Zasnova/metodologija/pristop: Glede na naravo teme je uporabljen kombi- niran kvalitativni pristop, ki vključuje normativne in dogmatične metode, ana- lizo literature, pregled sodne prakse in statističnih podatkov ter aksiološko metodo. Empirična raziskava temelji na več kot sto primerih z vprašanji in od- govori v zvezi z razlago ZUP v upravni praksi. Ugotovitve: Upravna pritožba služi več namenom, od varstva pravic strank do zagotavljanja doslednega izvajanja področne zakonodaje. Opravljena ana- liza opredeljuje sistemska vprašanja, kot so: pravni interes za vložitev pritožbe (zlasti za druge prizadete osebe ali organe), pritožbeni razlogi, pristojnost gle- de pritožbenih odločitev, določitev, kdaj lahko pritožbo obravnava prvosto- penjski organ in kdaj je potrebna devolucija, alternativno reševanje sporov v pritožbah, roki za vložitev pritožbe in odločanje o njej ter možnost odpovedi pravici do pritožbe. Obravnavane so tudi (pomanjkljive) možnosti za digitalizi- rane postopke. Ta spoznanja služijo kot empirična podlaga za ponovno kodi- fikacijo ZUP. Akademski doprinos k znanosti: Prispevek ponuja normativno in doktrinarno analizo relevantnih pravnih določb (vključno s pravom EU, slovensko ustavo in ZUP) s poudarkom na ciljih, pravnem interesu, rokih, razlogih in drugih ele- mentih pritožbe. Obenem proučuje ugotovitve iz slovenske sodne prakse v upravnih sporih v zvezi s pritožbami, ki se odražajo v odločitvah vrhovnega in upravnega sodišča ter v upravni praksi. Raziskovalne/praktične/družbene posledice: Prispevek prinaša strnjen pre- gled relevantne literature in analizo pravil za izvajanje, oceno in izboljšanje določb ZUP v zvezi s pravico do pritožbe. Na podlagi teh spoznanj predlaga de lege ferenda rešitve za jasnejši ZUP. Ugotovitve lahko služijo kot osnova za odločanje na podlagi podatkov. Izvirnost/vrednost: Analiza primerov Upravne svetovalnice lahko služi kot vir za sistemski pregled problemov na tem področju. Z več kot sto analiziranimi primeri iz zadnjih 15 let ponuja objektiven vpogled v ponavljajoče se dileme v upravni praksi. Ključni izzivi so prepoznani z uporabo uveljavljenih in kombini- ranih družboslovnih raziskovalnih metod. Ključne besede: upravno procesno pravo, Upravna svetovalnica, pravica do pritožbe, kodifikacija ZUP, Slovenija AUTHOR GUIDELINES