The Aix-en-provence Centre de recherches administratives (CRA) held its 40th panel discussion on 3-4 November 2017. For the last forty years, the CRA kindly invites academic experts in administrative law from across Europe (Belgium, Czech Republic, France, Germany, Greece, Italy, Luxembourg, Norway, Portugal, Spain, Switzerland, the Netherlands, UK) and beyond (Japan, China) to discuss topical issues in the field (e.g. ethics of civil servants, digitalization of administrative procedures, regulatory agencies, judicial review). These annual meetings have been chaired in the past by prestigious French administrative and comparative law professors, such as Professors Rivero and Ponthier and are now enthusiastically organized by Professor Delphine Costa. This 2017 meeting discussed « Citizens-administration: 40 years of evolution ».
Professor Ponthier introduced the meeting with a detailed analysis of the changes in the French administration and their ambiguous directions: sometimes leading the administration to coming closer to the citizens (information, participation), sometimes to detaching it from the citizens (too much information kills information; too much expertise required to engage meaningfully in complex debates such as nuclear issues; anonymization of the citizens in an indistinctive “mass”). Thereafter, the discussions were broken down into four main themes: 1) evolution of administrative organization ; 2) evolution of administrative action ; 3) evolution of administrative procedure ; 4) evolution of administrative citizenship. Here is a very brief overview of these extremely rich discussions and debates.
- Evolution of administrative organisation
Changes in the territorial organisation are going in rather opposite directions. In some countries such as Spain (especially in Catalonia), Greece and Belgium (incremental federalism), the evolution over the last 40 years leads towards a loosening of or a challenge to centralisation. However, in other countries, a different movement can be highlighted. In Germany, the reunification (1989-90) led to a major effort in modernisation of the administration for instance: to address promptly the challenges of territorial reorganisation, some dimensions of the planification were even functionally contracted out. In Switzerland, federalism led to an incremental centralisation. In other countries such as Portugal, a balance between unity and local autonomy has been developed over time.
The reasons behind these differences can be multiple and the intensity of these processes may fluctuate over time. However, serious crises and problems such as terrorism and developing an efficient response to its threat may lead to questioning administrative fragmentation, hence bringing back “centralisation” on the agenda.
In an incredibly fast changing world, the administrative organisation is in many countries the unit that remains fairly stable: it offers to citizens and (non-)economic actors a framework for their own activities. This very presence of the administrative organisation shapes many opportunities for the social, economic and political life. It is the very space for decision and discussion of uprising pressing issues. In order to influence administrative action, to exchange information with the administrative organisation or to obtain funding from it, social and economic actors get organised and develop strategies and projects. This leads to many questions from a comparative perspective. How did the territorial re-organisation of the states, its contracting out policies and fragmentation across single-purposes agencies influence the “political” lives of (socio-)economic actors and citizens? How do constitution and legislature take into account these interactions in their decision-making process when they decide about administrative organisation? How do they get information about these interactions? On which kind of data or social models do they base their design and expectations? How much does the law seek to map these sides of the administrative re-organisation?
- Evolution of administrative action
Over the last forty years, administrative action has evolved to include citizens in different ways. One way is to develop procedures and discussions with specialists of the topic (e.g. social dialogue at EU level), which makes the process fairly meaningful and efficient. Administrative transparency is another important change that defines changes in administrative action over the last forty years. In this regard, cases such as Magyar Helsinky vs. Hungary (ECtHR, 8 November 2016) illustrates how far reaching the right to access to administrative documents has become. Administrative transparency in many countries (Belgium, France, Switzerland, the EU etc.) has become part and parcel of a more participative administrative system.
However, administrative systems build their own balance between various administrative logics, such as transparency, participation and efficiency. For instance, Switzerland which is known for its participative system reversed the principle of administrative secrecy only in 2006. In Belgium, citizens have been more often included in the decision-making. Sometimes, this results in making the administration aware of alternatives it was not aware of (e.g. urban planning and their inquiries). However, taking into account citizens’ complaints can also be burdensome and influence the administrative processes (which need also to take into account political priorities and economic needs).
Administrative transparency can especially be a contentious matter as it has to draw a balance between democratic concerns of opening up the administration on the one hand and political realism about the economic interests at stake on the other hand. This kind of challenge is best illustrated with the European negotiations on international trade agreements.
Overall, the comparative undertaking may lead to wonder: efficiency, transparency, yes, but to whose benefits? The citizen or the administration? In the short or the longer term? What do the answers to these question reveal about the administrative culture of each country and the EU? How much the answers to these questions are actually pre-determined by this very same administrative culture? Can we then really see that the administrative culture can change at a more structural level? Are changes, even changes that are heralded as ground-breaking such as transparency, deeply change the ways in which the administration makes its decisions? Are they more some form of light exercising in legitimization or can these processes of administrative changes only be assessed over a quite long duration (longer even than forty years)?
- Evolution of administrative procedure
Administrative procedures are supposed to be reformed so as to offer opportunities for the citizens to be involved in the administrative decision-making process. Increasingly, the complexity of designing citizens’ participation is becoming more obvious for a range of reasons.
Firstly, a range of modalities are available. Arnstein’s ladder of participation is here still a very useful starting point to categorise the different interactions possible between the administration and the citizens. As the Italian reporter mentioned, there remains a difference between the administration which is supposed to take the decision and citizens who are invited to make their views known. Secondly, there are also technical elements in the administrative procedure (such as the time limit within which the administration should take its decision or internal review procedures) that are not neutral for the citizens. Thirdly, recent international and European events such as the twitter storms sparked by President Trump or the Brexit referendum made scholars from the XIXth century becoming again topical: Gustave Lebon (The Crowd: A Study of the Popular Mind, 1895) when he studied crow psychology warned against the strength of the most irrational argument. This leads to wondering how to articulate insights from social psychology with professional expertise and political legitimacy when it comes to designing administrative procedures to prevent these procedures from becoming instrumentalised.
The administrative procedure has been codified in many countries over the last forty years (with France joining this trend in 2015). However, codification does not equal simplification per se. More technical provisions may mean slower administrative processes.
Faced with this wealth of extremely stimulating questions, the comparative lawyer may wonder how interdisciplinary work with economists, historians and political scientists may help develop a more sophisticated understanding of administrative changes in their social context.
- Evolution of administrative citizenship
Discussing a possible “administrative citizenship” casts light on the core of the relationship between citizens and the administration. Different emphases are put across the countries. For instance in Belgium, a range of words are used to refer to the citizens: “user”, “administré”, “interested person” or even client. In Portugal, a balance is struck between the rights and duties of citizens and the administration; yet, the citizen remains in a more subordinate position. In the Netherlands, equality between citizens and equality “devant les charges publiques” (as pointed out in the discussion the French expression is used in the Dutch legal system to mean that citizens should bear equally burdens that benefit the collectivity) are key. In Germany, cooperation between active citizens and the administration is increasingly developed (even in the case of “context piloting”, such as standardisation and qualifications), although the state remains responsible in last resort for protecting citizens. This leads the citizens to be in a position where they often have a range of choices to obtain a result from the administration.
The changes towards an increasing administrative citizenship have parallel effects on a range of questions such as administrative liability and the kind of judges available to adjudicate litigation between the administration and citizens. Discussions arose about alternative dispute resolution and mediation. How far has the state a duty to protect equality between the parties when they decide to use negotiated procedures to resolve their dispute?
This leads to major questions regarding the allocation of tasks and expertise between the citizens and the administration. In the 1970s, the administration (especially in countries such as France and Germany) was very much designed around a Weberian model where the administration was superior to the citizens, as it has a specific expertise and professionalization. It was entrusted with decision-making and citizens could happily live as “passive” subject. However, citizens had a social and political life of their own. They were not merely idle during their free time. They were members of trade unions, churches or other associations. They were spending their time caring for their families, being their upspring or their elderly parents. In 2017, the Weberian model has been transformed by the New Public Management and has adapted to increase efficient management of resources. The administration engages extensively with citizens and a range of socio-economic actors. It expects citizens and experts to bring their knowledge and insights on very significant issues, while citizens may still be trying to scramble for time across part-time jobs, commuting and other pressing issues of their own. “Active” citizens in a real position to be involved in the decision-making are becoming the new administrative “elite”, the few privileged who have the mental and social resources to inquire about technical topics and to develop arguments in a way that the administration will be able to make use of. Comparative lawyers may wonder which legal frameworks are developed in our respective countries to reflect on this new design of the administrative relationship. How does the law ensure that “administrative citizenship” is inclusive and gives an equal opportunity to citizens with very diverse backgrounds and needs to make their voices heard in the administrative processes?
These fruitful discussions were concluded by Professor Delperée. He reflected on the substantial content of the “citizen” and the “administration” and the ways in which a balanced relationship between the two is developed through developing new forms of collaboration and new routes to challenge administrative decisions. Questions arise about the adverse consequences of constant administrative changes, about the fact that too much participation may end up killing participation and the new routes to administrative justice. The developments need to be considered with due care in the future. The national reports on these questions are planned for publication in the 2018 Annuaire européen d’administration publique.
Dr Yseult Marique
Essex School of Law
Deutsches Forschungsinstitut für Öffentliche Verwaltung Speyer
(Suggested citation: Y. Marique, “Account: “Citizens-administration: 40 years of administrative reforms””, Aix-en-provence, available at https://british-association-comparative-law.org/2017/11/17/account-citizens-administration-40-years-of-administrative-reforms-aix-en-provence)