Issue No. 22: Mechanisms of interaction between administrative bodies

The Code of Administrative Procedure contains provisions concerning co-operation between administrative bodies: Art. 106 and Art. 106a. Article 106 sets out the procedural rules and procedure for cooperation between administrative bodies. It does not constitute a legal basis for cooperation, because such basis is created by special provisions which establish that issuing a decision is subject to another authority expressing their standpoint on the same. Article 106 does not apply to forms of cooperation provided for in the substantive law, consisting of co-decision or the obligation to obtain authorization or consent of another authority, which have the form of an administrative decision.

Article 106 applies in such cases of cooperation in which the issuing of an administrative decision, and thus shaping the content of that decision, is the sole competence of a public administration body, which is fully and independently responsible for the content of the decision, and the cooperating body has the statutory competence to take a position in a case decided by a competent authority, and this position is not legally binding on the authority which is to settle the matter at hand by way of a decision. The authority cooperating in making decisions by the authority competent to examine the case does not therefore become a party to the administrative procedure, because the administrative matter does not concern its rights and obligations.

In 2017, Art. 106a has been added to the CAP, regulating the so-called joint session. The purpose of introducing this institution is to streamline the proceedings in which the body conducting the proceedings issues a decision after obtaining the position (opinion) of another body. The lack of a position of such a body within the statutory timeframes, and thus the inability to undertake the decision by the "main" body (settling the case), may lead to a situation in which both of these bodies will be exposed for alleged lengthy proceedings. Such a meeting may have an additional informational value, enabling the meeting of all entities involved in settling the given matter (in particular when the party also attends the meeting) and exchanging information useful to them. This solution may foster better cooperation by enabling, on one hand, more active participation of the parties in this procedure and, on the other, by the authorities' comments and clarifying any doubts that may arise when cooperating in resolving the given case. Meeting in the mode of cooperation through the exchange of arguments and exposing the arguments of all participants in the procedure is to allow implementing the general principles of the Code of Administrative Procedure, including the principle of trust in state bodies, to a greater extent than before.

Article 106. [Co-operation of authorities] § 1. If pursuant to any provision of law the decision may be issued only after another authority expresses its position (expresses opinion or consent or expresses its position in any other form), the decision shall be issued only after such authority expresses its position.

§ 2. The authority disposing of the matter, while applying to another authority to express its position, shall notify a party thereof.

§ 3. The authority to which the request to express its position has been submitted shall present its position immediately, however, no later than within two weeks of the day of the receipt of the relevant request, unless a provision of law provides for a different timeframe.

§ 4. If need be, the authority having the duty to express its position may conduct explanatory proceedings.

§ 5. The authority’s position shall be expressed by means of an order against which a party may file a complaint.

§ 6. If the authority fails to take a position within the time limit specified in § 3, Articles 36-38 shall apply and the authority obligated to take a position shall immediately notify the authority disposing of the matter of the reminder notice being filed.

Article 106a. [Joint session] § 1. The authority disposing of the matter may, ex officio or upon application of the party or authority which was requested to express its position, convene a joint session, if it may facilitate the taking of the position (joint session).

§ 2. The authority disposing of the matter may convene a joint session before the expiry of the time limit for the taking of the position specified in Article 106 § 3, and if a provision of law provides for another time limit, before the expiry thereof, only upon application of the authority which was requested to take a position.

§ 3. The authority disposing of the matter may summon the parties to a joint session. The provisions of Articles 90-96 shall apply mutatis mutandis.

§ 4. Convening a joint session shall not release the authority from the obligation to consider the reminder notice referred to in Article 106 § 6. The order referred to in Article 106 § 5 may be included in the minutes of the joint session.