Question:

What is the correct procedure when an inferior agency conducts a specific type of procedure for which GAPA is used, even though it is a special procedure (the allocation of public funds), but the area or the procedure is not defined by special regulation?
With that it is mostly a question when the competent agency issues an administrative act with which they rejected the right or legal benefit of the party (does not award public funds for which the party, i.e. a society, applied), stating that the party did not meet the conditions defined by the public tender. However the party filed an appeal over the wrongfully determined state of facts and claimed they met the criteria. The superior agency grants the appeal, declares the challenged decision as void and returns the matter to a renewed procedure to the inferior agency. During this procedure, which counts as an appellate deciding, the inferior agency finds that the same party did not appropriately spent previously awarded funds, which is an exemplary reason in the current tender (unresolved payment of debt). The agency does not obtain this fact with a decision or during a special inspection, but during an exceptional review of the party’s operations.
Can or must the inferior agency include this newly found fact, which existed at the time of the first decision but the agency was not aware of, in the renewed procedure after the appeal of the party for a different reason, during which it would negatively affect the party as they were successful with their appeal?
What is the procedure if, during the opportunity to make a statement, the party objects to the such determined fact (the existence of the debt) - can the inferior agency still decide that the exclusionary condition (the debt) nevertheless exists and issues a decision rejecting the request of the party, even though it is for a different reason than the first time?
Does that mean that the party will be able to start an administrative dispute over such a decision (and only then will the judgement be made over the existence of the debt and whether or not the party used the funds of the previous public tenders in an appropriate manner)? Does the (none)existence of the debt represent a preliminary question and does it mean that the agency at the inferior level should have a final judicial judgement at its disposal, should it not decide on the matter by itself? Such a judgement would only prove the existence of the pecuniary obligation, but not the debt itself. The judgement would be able to impose a fine on the party, which they would then immediately pay and the debt would no longer exist.

Answer:

We initially agree, that GAPA is used in public law relations, among which is also the allocation of public funds, unless sectoral regulations define the procedures differently (see Article 4 of GAPA for mutatis mutandis application of principles of GAPA), with the theory and judicial practice matters of allocation of public funds outside of public tenders are usually defined as administrative with a subordinate use of all the principles and rules of GAPA (following Article 3 of GAPA). Furthermore it is true, that the conditions for acquiring the right or a legal benefit are defined by the sectoral legislation and general acts, issues based on the regulation, among which is also the documentation of the tender. The goal of this procedure is to ensure the appropriate use of public funds for the means for which they were envisaged for the public benefit (e.g. the development of culture, research, protection of asylum seekers, protection of animals, etc.), while the competent agency must appoint the funds or rights only to those parties (tender candidates) which meet all the requirements for acquisition and according to those requirements set the scale of the funds or the scope of the right.
Among the basic principles for a correctly conducted procedures are, besides the principle of legality (Article 120 of the Constitution of RS and Article 6 of GAPA), primarily the principle of substantive truth (Article 8 of GAPA) and the protection of the rights of parties (including the right to a hearing) and the protection of public benefits (Article 7 of GAPA), which are usually expressed in the special declaratory procedure (Article 146 of GAPA). Besides the primary protection of the public benefits (appropriate use of public funds) there is also the need for the respect the rights of the party, by only exceptionally intervening in the already existing administrative relations, which were established by the issued administrative acts.
It is vital for the given case that the renewed procedure, conducted after a granted appeal, is not counted as an appellate procedure but a (new) procedure at the inferior level.
The administrative agency therefore can and must run a renewed procedure at the inferior level of deciding, as if was run for the first time, and during it consider all the authentic facts. The agency may decide against the party, even if the reasons for doing so are different than the first time, if they establish new facts during the renewed procedure, which would constitute non fulfilment of the criteria for the approval of the right, even though the agency was previously unaware of them. If the inferior agency again decides, they must do so according to the decision of the appellate agency, however that does not mean they are not obligated to determine the state of facts of the matter in the period of the new procedure, even though they were not informed of the individual deciding factor in the decision at the superior level (judgment U1099/92-10 of the Supreme Court of RS, after Jerovšek et al., Zakon o splošnem upravnem postopku s komentarjem, 2004, p. 81). The inferior agency may decide, in the renewed procedure, based on the newly determined facts, more unfavourably against the party or for different reasons as the first time, as it is a matter which has not yet been resolved due to the annulment of the decision at the superior level of deciding. The issue of the decision in a renewed procedure at the inferior level does not constitute a breach of the already issued statement, as it no longer exists. For it there are no limitations following Article 253 of GAPA, as the purpose of the administrative procedure is not only the protection of the rights of the parties but also the preference in favour of public interest in the event of a collision. The appellant therefore takes a risk when filing an appeal, that they may only succeed to the point of the annulment of the challenged decision, whereas the new procedure would decide based on new state of facts, which could be less favourable for the party than the first time.
It is true on the other hand, that, because of the protection of rights of the parties, a decision needs to be made by the regulation (the tender) which was valid during the time of the first decision procedure at the inferior level, even in the event that the decision has been, in the process of appeal, annulled and returned to a renewed procedure to the inferior agency. The same holds true for the renewal of procedure by an extraordinary legal remedy (see Article 260 of GAPA).
There is therefore a need for differentiation between the use of facts and rules after the time of the decision. If the facts preventing the obtainment of a certain right are discovered after the fact it means that the conditions for application were not met at the time of the first decision by the valid regulations (the tender). It is therefore correct that in such cases the right for a renewal of the procedure is rejected. It is important that in the given example the party did not properly draw the awarded rights (appropriately, in the public benefit). We agree that in the event the party settles the debt before the issue of the decision at the inferior level in the renewed procedure, that reason for exclusion is no longer present at the time of the decision, therefore a negative decision, which is based solely on that reason, is not legal.
In a renewed special declaratory proceeding the party must be given the ability to make a statement before the decision is issued. However the agency is not bound to that statement, as the right to a hearing of the party is for the protection of their own legal benefits and not primarily as a source of relevant facts. If the agency can, from other sources and pieces of evidence, with certainty determine the non-fulfilment of criteria for the right (e.g. non-returned owed funds), they can decline the request, even though the party claimed that the condition (debt) did not exist. Of course both the agency and the party are, under the principles of burden of proof, obligated to state or verify factually and not state or decide in a disputable way.
For the inferior agency, deciding in the procedure, all facts and conditions, which the recognition of the right depends on, are valid. The manner, in which the agency determines such facts, is by itself irrelevant, unless a specific regulation or a general act (tender) limits it. For example, the fact that the party owes non-appropriately used funds can generally be considered an exclusionary condition for which a negative decision is issued, even though the debt has not been determined as judicially final, but in an, for example, extraordinary (financial) review.
If the question of this condition was regulated by an independent legal procedure (i.e. before a general court), where it would be determined if it actually was a case of inappropriate use of funds or an unsettled debt, the appropriate (judicial) decision on the matter would be the grounds for a renewal of the procedure, in which the party was (in this case) issued a negative decision. Otherwise it is considered a differently resolved preliminary question after Article 260, paragraph 4, of GAPA. However not only should the scale of the debt and its eventual settlement by the party be determined, but also the renewal of the procedure would be in place, if another body (court) would determine that it either was not the case of non-appropriate use of funds or that the debt was settled before the issue of the decision at the inferior level (in a renewed procedure after a granted appeal), as only newly found facts, but existing at the time of the first decision, are used as an extraordinary legal remedy for the renewal of the procedure.

The Administrative Consultation Wiki is a student project. See Privacy Policy and Disclaimer regarding content responsibility.

Comment:

Loading comments...