What is administrative law?
● “Administrative law mainly deals with the relationship between the executive and private persons
and/or organizations. (connection between the public and the private) Backes and Eliantonio,
Administrative Law, at 294
● In a democracy, an administrative body is strictly bound by the law. It can only exercise those powers
which were assigned to it by means of legislation. (statutory power must be granted) Backes and
Eliantonio, Administrative Law, at 294
● According to the rule of law (legality principle) (functioning of society should follow rules and order as a
conceptionalistion), all competences of administrative bodies to perform juridical acts based on public law
must derive from legislation.” Backes and Eliantonio, Administrative Law, at 294
What does administrative law govern? - 2 ways to look at it/ 2 theories
Red light theory
● protecting citizens against the administration → abusing power; acting unlawfully
Green light theory
● administrative law facilitates the administration → makes administration work better
two primary functions:
1. instrumental function of administrative law: the powers that administrative authorities
need in order to fulfill their tasks and the conditions attached to such powers.
2. the safeguarding function of administrative law - the protection of the rights and interests
of citizens and of private organizations against the use of administrative power
1. Theoretical foundations of domestic administrative law
Rule of law
Definition - Backes and Eliantonio, Administrative Law, at 294
“Administrative law mainly deals with the relationship between the executive and
private persons and/or organizations. → connection between the public and the
private
In a democracy, an administrative body is strictly bound by the law. First, it can only exercise
those powers which were assigned to it by means of legislation. (statutory power must be
granted)
According to the rule of law (legality principle) (functioning of society should follow rules and
order as a conceptionalistion), all competences of administrative bodies to perform juridical acts
based on public law must derive from legislation.”
Rule of Law and Legality Principle
● In order to pursue public goals and general interests, the administrative authorities
receive certain competences from the legislator
, ● The principle of the rule of law underlies administrative law in all European legal systems
= administration is always bound by law
● the administration must refrain from violating the law, including the basic rights of
individuals
● special requirement of the rule of law is the legality principle
● legality principle: requires that the administration’s competence to act must have a
basis in legislation
➔ The administration may not divert its competence from the purpose other than that which
the legislator intended when creating the competence
➔ prohibition of détournement de pouvoir = power only for the purpose for which it has
been conferred on them
➔ legality principle + closely related prohibition of détournement de pouvoir bind the
administration to the legislature, as the democratic representation of the people
➔ Fundamental rights and several general principles of administrative law guide the
process of identifying and weighing the diverse interests that must be considered in
administrative decision-making
Principle of Legality
- Placement of Admin Law within the Trias Politica
- Requires that the organs of the state are empowered through the law
- “Administration's competence to act must have a basis in legislation” (Backes and
Eliantonio, 209)
- Administration cannot use competence for purposes that have not been conferred
- Did the legislative confer the power? Is there a law which gives the agency power?
- Did the agency apply the power correctly?
- Case -
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022]
When does an administrative body have the power to act?
Example: A world-ranked tennis player has been detained at an immigration centrein Australia
for allegedly violating entry requirements relating to health and safety. The immigration
authorities have denied his entry and detained him. The tennis player argues that he complied
with relevant entry requirements by providing a doctor’s confirmation of a previous Covid
infection and by notifying regional authorities. What power needed to be granted to the
immigration authorities to take this action?
Where did the immigration center get their powers from?
What law needed to exist to deny entry into Australia? → Migration Act
● Power of Immigration Authorities – as granted by law
● https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/
2022/2022fcafc0003
● Section 116 of the Migration Act → minister may cancel a visa if there is a
health risk = power needed to be granted to the immigration authorities to
, take this action
• s 133C(3) of the Migration Act 1958: Minister’s personal power
• s 116 of the Migration Act: Minister satisfied that a ground for cancelling the visa existed
• s 116(1)(e)(i) of the Migration Act: Minister satisfied that the presence of the applicant in
Australia may be a risk to the health, safety or good order of the Australian community under
• s 133C(3)(b) of the Migration Act: in the public interest to cancel the visa
● State that is based on rule of law needs separation of powers
● Everyone is equal and no one is above the law
● There is no definition
● The law should respect the rights of the citizen
● Ties to democracy and promotes the protection from interference by the state (Backes and
Eliantonio, Administrative Law,)
○ Links to JR: Much JR is geared towards furthering the Rule of Law
○ E.g. German law: The constitutional right of effective judicial protection enshrined
in Article 19(4) of the Basic Law is a fundamental pillar of the German
Rechtsstaatsprinzip (rule of law principle)
Does the Rule of Law matter for administrative law?
- Forms judicial review: court assess whether the law applied correctly
- Balance between Administrative Justice and Rule of Law
AV Dicey, Introduction to the Law of the Constitution (London, Macmillian, 1902) 198-99
“[The] ‘rule of law’ then, which forms a fundamental principle of the constitution, has
three meanings, or may be regards from three different points of view.
It means, in the first place, the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power, and excludes the existence of arbitrariness [...]
In means, again, equality before the law, or the equal subjection of all classes to the
ordinary law of the land administered by the ordinary Law Courts [...]
The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the
law of the constitution [...] are not the source but the consequence of the rights of
individuals, as defined and enforced by the Courts [...]”
(1) absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness [...]
(a) Punishment is derived from law
(b) People are ruled by law
(2) equality before the law
(a) No exemption for people e.g. in public service
(b) Law applies to all people in the same manner
, (3) law of the constitution [...] are not the source but the consequence of the rights of
individuals,
(a) Rule of law is crucial for fundamental rights
(b) To uphold rights
1. Authorization
- Government action has a valid legal source
- Personal vesting of authorization (not to the government as a whole)
- Independent judgment
- Role based compliance and independent evaluation over political
loyalty → extract corruption
2. Notice
- Problems for the regulatory state: publiccity, clarity, prospectivity, stability
- Statutes are often broad and vague
3. Justification
- Agencies’ exercise of judgment
- Creation of coherence falls upon the against and courts
- Consistency in implementation
4. Coherence
- RoL no one is above the law, thus there must be coherence in decision to keep
transparency and fairness, but also fundamental rights and competences must be
respected from agencies, thus they cannot just do what they want and are reliable in that
sense
5. Procedural fairness
- Demands of fairness from the agency adjudicators
- Adjudicators should be insulated from political oversight
- Should be insulated from political oversight
Charter of Fundamental Rights of the EU
Article 41: Right to good administration
➢ Every person has the right to have his or her affairs handled impartially, fairly and within
a reasonable time by the institutions and bodies of the Union.
➢ This right includes: the right of every person to be heard, before any individual measure
which would affect him or her adversely is taken; the right of every person to have
access to his or her file, while respecting the legitimate interests of confidentiality and of
professional and business secrecy; the obligation of the administration to give reasons
for its decisions.
➢ Every person has the right to have the Community make good any damage caused by
its institutions or by its servants in the performance of their duties, in accordance with the
general principles common to the laws of the Member States.
● “Administrative law mainly deals with the relationship between the executive and private persons
and/or organizations. (connection between the public and the private) Backes and Eliantonio,
Administrative Law, at 294
● In a democracy, an administrative body is strictly bound by the law. It can only exercise those powers
which were assigned to it by means of legislation. (statutory power must be granted) Backes and
Eliantonio, Administrative Law, at 294
● According to the rule of law (legality principle) (functioning of society should follow rules and order as a
conceptionalistion), all competences of administrative bodies to perform juridical acts based on public law
must derive from legislation.” Backes and Eliantonio, Administrative Law, at 294
What does administrative law govern? - 2 ways to look at it/ 2 theories
Red light theory
● protecting citizens against the administration → abusing power; acting unlawfully
Green light theory
● administrative law facilitates the administration → makes administration work better
two primary functions:
1. instrumental function of administrative law: the powers that administrative authorities
need in order to fulfill their tasks and the conditions attached to such powers.
2. the safeguarding function of administrative law - the protection of the rights and interests
of citizens and of private organizations against the use of administrative power
1. Theoretical foundations of domestic administrative law
Rule of law
Definition - Backes and Eliantonio, Administrative Law, at 294
“Administrative law mainly deals with the relationship between the executive and
private persons and/or organizations. → connection between the public and the
private
In a democracy, an administrative body is strictly bound by the law. First, it can only exercise
those powers which were assigned to it by means of legislation. (statutory power must be
granted)
According to the rule of law (legality principle) (functioning of society should follow rules and
order as a conceptionalistion), all competences of administrative bodies to perform juridical acts
based on public law must derive from legislation.”
Rule of Law and Legality Principle
● In order to pursue public goals and general interests, the administrative authorities
receive certain competences from the legislator
, ● The principle of the rule of law underlies administrative law in all European legal systems
= administration is always bound by law
● the administration must refrain from violating the law, including the basic rights of
individuals
● special requirement of the rule of law is the legality principle
● legality principle: requires that the administration’s competence to act must have a
basis in legislation
➔ The administration may not divert its competence from the purpose other than that which
the legislator intended when creating the competence
➔ prohibition of détournement de pouvoir = power only for the purpose for which it has
been conferred on them
➔ legality principle + closely related prohibition of détournement de pouvoir bind the
administration to the legislature, as the democratic representation of the people
➔ Fundamental rights and several general principles of administrative law guide the
process of identifying and weighing the diverse interests that must be considered in
administrative decision-making
Principle of Legality
- Placement of Admin Law within the Trias Politica
- Requires that the organs of the state are empowered through the law
- “Administration's competence to act must have a basis in legislation” (Backes and
Eliantonio, 209)
- Administration cannot use competence for purposes that have not been conferred
- Did the legislative confer the power? Is there a law which gives the agency power?
- Did the agency apply the power correctly?
- Case -
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022]
When does an administrative body have the power to act?
Example: A world-ranked tennis player has been detained at an immigration centrein Australia
for allegedly violating entry requirements relating to health and safety. The immigration
authorities have denied his entry and detained him. The tennis player argues that he complied
with relevant entry requirements by providing a doctor’s confirmation of a previous Covid
infection and by notifying regional authorities. What power needed to be granted to the
immigration authorities to take this action?
Where did the immigration center get their powers from?
What law needed to exist to deny entry into Australia? → Migration Act
● Power of Immigration Authorities – as granted by law
● https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/
2022/2022fcafc0003
● Section 116 of the Migration Act → minister may cancel a visa if there is a
health risk = power needed to be granted to the immigration authorities to
, take this action
• s 133C(3) of the Migration Act 1958: Minister’s personal power
• s 116 of the Migration Act: Minister satisfied that a ground for cancelling the visa existed
• s 116(1)(e)(i) of the Migration Act: Minister satisfied that the presence of the applicant in
Australia may be a risk to the health, safety or good order of the Australian community under
• s 133C(3)(b) of the Migration Act: in the public interest to cancel the visa
● State that is based on rule of law needs separation of powers
● Everyone is equal and no one is above the law
● There is no definition
● The law should respect the rights of the citizen
● Ties to democracy and promotes the protection from interference by the state (Backes and
Eliantonio, Administrative Law,)
○ Links to JR: Much JR is geared towards furthering the Rule of Law
○ E.g. German law: The constitutional right of effective judicial protection enshrined
in Article 19(4) of the Basic Law is a fundamental pillar of the German
Rechtsstaatsprinzip (rule of law principle)
Does the Rule of Law matter for administrative law?
- Forms judicial review: court assess whether the law applied correctly
- Balance between Administrative Justice and Rule of Law
AV Dicey, Introduction to the Law of the Constitution (London, Macmillian, 1902) 198-99
“[The] ‘rule of law’ then, which forms a fundamental principle of the constitution, has
three meanings, or may be regards from three different points of view.
It means, in the first place, the absolute supremacy or predominance of regular law as
opposed to the influence of arbitrary power, and excludes the existence of arbitrariness [...]
In means, again, equality before the law, or the equal subjection of all classes to the
ordinary law of the land administered by the ordinary Law Courts [...]
The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the
law of the constitution [...] are not the source but the consequence of the rights of
individuals, as defined and enforced by the Courts [...]”
(1) absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness [...]
(a) Punishment is derived from law
(b) People are ruled by law
(2) equality before the law
(a) No exemption for people e.g. in public service
(b) Law applies to all people in the same manner
, (3) law of the constitution [...] are not the source but the consequence of the rights of
individuals,
(a) Rule of law is crucial for fundamental rights
(b) To uphold rights
1. Authorization
- Government action has a valid legal source
- Personal vesting of authorization (not to the government as a whole)
- Independent judgment
- Role based compliance and independent evaluation over political
loyalty → extract corruption
2. Notice
- Problems for the regulatory state: publiccity, clarity, prospectivity, stability
- Statutes are often broad and vague
3. Justification
- Agencies’ exercise of judgment
- Creation of coherence falls upon the against and courts
- Consistency in implementation
4. Coherence
- RoL no one is above the law, thus there must be coherence in decision to keep
transparency and fairness, but also fundamental rights and competences must be
respected from agencies, thus they cannot just do what they want and are reliable in that
sense
5. Procedural fairness
- Demands of fairness from the agency adjudicators
- Adjudicators should be insulated from political oversight
- Should be insulated from political oversight
Charter of Fundamental Rights of the EU
Article 41: Right to good administration
➢ Every person has the right to have his or her affairs handled impartially, fairly and within
a reasonable time by the institutions and bodies of the Union.
➢ This right includes: the right of every person to be heard, before any individual measure
which would affect him or her adversely is taken; the right of every person to have
access to his or her file, while respecting the legitimate interests of confidentiality and of
professional and business secrecy; the obligation of the administration to give reasons
for its decisions.
➢ Every person has the right to have the Community make good any damage caused by
its institutions or by its servants in the performance of their duties, in accordance with the
general principles common to the laws of the Member States.
