Administrative approval

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ADMINISTRATIVE APPROVAL – an institution appearing in law and administrative procedure, enabling relatively flexible operation of a public administration body in certain cases determined by law. Firstly, it may consist in the fact that with the actual state of affairs, the administrative authority may resolve the case in various manners, and each settlement will be legal. Secondly, in some situations, the administrative authority may behave in a certain way, but the factual state in which the action may be carried out is not indicated (the body may take action at the moment it deems it appropriate). Finally, the justification of the body’s operation in the description of the facts may be expressed in legal provisions in a vague, indeterminate manner (e.g. public interest). It should be emphasized that while using the institution of a.a. the public administration body does not have full freedom and discretion in deciding which course of action to take. Every action of public administration must take place on the basis and within the limits of the law, which results directly from the provisions of the Constitution of the Republic of Poland. This means that a.a. in any case must have a specific legal basis and result from applicable legal regulations. As is clear from the jurisprudence of the Constitutional Tribunal, in accordance with the requirements of the democratic state of law, there can be no question of any “free”, i.e. within certain limits unconnected with the law and uncontrolled, operation of the administration. From a formal institution, establishing freedom, unlimited possibility of settling, free approval is only transformed into a form of flexible administration that allows and obliges the relevant bodies to examine all circumstances of a given case in order to come to the decision that is most appropriate and reflects the objective truth and its goal (judgment of Constitutional Tribunal of 29 September 1993, file reference no. K 17/92, OTK from 1993/II/33). Also in the jurisprudence of administrative courts it is indicated that whilst applying the a.a. the administration body is obliged to examine the facts in detail and record the results of the evidentiary proceedings in the files (judgment of the Supreme Administrative Court of 16 November 1999, file reference no. III SA 7900/98, SIP LEX no. 47243), and additionally – making a discretionary decision the administrative body according to Article 7 of the c.a.p. is obliged to follow the legitimate interest of the citizen, if it is not prevented by social interest or if it does not go beyond the capacity of the public administration body which results from the powers and means granted to it (judgment of the Supreme Administrative Court of 28 April 2003, file reference no. II SA 2486/01, SIP Lex no. 149543). It is also important that the discretionary decisions of public administration are subject to the control of administrative courts as to the possible exceeding of the statutory authorization by the administrative body to issue a specific settlement and the possible abuse of the institution of a.a. by acting against its goals. [R. Cieślak]

Literature: Z. Duniewska et. al., Instytucje prawa administracyjnego [Institutions of administrative law], System Prawa Administracyjnego [The system of administrative law], vol. 1, Warszawa 2015 ■ M. Wierzbowski et. al., Prawo administracyjne [Administrative law], Warszawa 2001.