Changes in society are conditioned by several processes, such as the globalization of business, computerization of communications, Europeanization as the convergence of standards in the European Union (EU), and the limited possibility of legally determining the fast-changing industries in relation to the development of science. All these call for the adaptation of the drivers and forms of public governance and of the functioning of the public administration (Ongaro 2018
; Mulgan 2017
; Harlow and Rawlings 2014
; Bevir 2011
; Rose-Ackerman and Lindseth 2010
), which applies both at national levels and in the EU. Among the key approaches to addressing the said changes—also highlighted by the activities of the OECD and the European Commission (EC 2020
; Misuraca 2019
; Carausan 2016
; Gallo et al. 2014
)—are various red tape cutting programs and scientific contributions, which in particular relate to the simplification or debureaucratization of administrative procedures (Bozeman 1993
; Moynihan et al. 2015
). Namely, procedural regulation increasingly prevails in modern administrative relations due to the limited determinateness of substantive law. However, even in the case of procedural laws, it is necessary to distinguish between the role, content, and limitations of umbrella laws in respect to sector-specific legislation (Mathis 2014
; Kovač 2016
Representatives of partial groups—most often economic entities as parties in administrative procedures—use the term bureaucratization to describe various phenomena and experiences, such as restrictive rules, binding decisions, or public charges. However, this aspect alone is by no means justified in professional circles, as the needs of various social subsystems and the community as a whole—must be taken into account (Sever et al. 2020
; Ziller 2008
). In order to pursue a proper balance of public interests in various sectors as well as minimum common standards in administrative relations, the concept of good administration has been developed to be included in future law making as well as in codification procedures (cf. Hofmann et al. 2014
; Kovač 2016
). Namely, Article 41 of the 2009 EU Charter of Fundamental Rights enshrines certain guarantees in administrative relations as elementary or minimum standards in relation to individuals, such as the right to be heard or decision within a reasonable time. Consequently, given the spillover effect, these rights also apply as guidelines for the Member States, even though the scope of the Charter is limited to EU institutions (Hofmann and Mihaescu 2013
). Moreover, the concept of good administration has been developed as a part of the more popular theory of good governance (Bevir 2011
; Venice Commission 2011
; Harlow and Rawlings 2014
), since good administration is a factor of a democratic, yet also an efficient administrative system. However, good administration can be considered more legally oriented while good governance broadly encompasses various principles, such as responsiveness, transparency, and accountability.
In most European countries, the codification of administrative procedures in the above sense is structured dually, which is through a general administrative procedure act (GAPA or APA) and sector-specific rules and regulations (Auby 2014
; Dragos et al. 2020
). Here, the role of general law is to provide the basic safeguards regardless of sectoral specifics, i.e., to pursue good administration principles (Galetta et al. 2015
). This also applies to Slovenia—independent since 1991 and an EU member since 2004—which adopted its GAPA in 1999 (Official Gazette of the Republic of Slovenia, No. 80/99 and amendments) based on a century-long Austrian tradition of the Rechtsstaat and the (post) socialist legacy of former Yugoslavia. Given their traditions and the parallel pursuit of European convergence, the countries in Central and Eastern Europe often present frictions and implementation gaps (Kovač and Bileišis 2017
; Koprić et al. 2016
The above is relevant in the framework of better regulation since not all provisions of general law are intended to protect public interest or individual rights, hence they can generate red tape. Better regulation and the related measures of reduction in the administrative burden, cutting red tape, and regulatory impact analysis, have been among the central topics and aspects of public administration reform in the OECD and EU countries for about thirty years (EC 2020
; Karpen and Xanthaki 2017
; Carausan 2016
; Radaelli and de Francesco 2007
). Rules have been proven to contribute to the restriction or promotion of economic competitiveness (i.e., compliance costs), which is especially relevant in the context of various crises, including the one related to COVID-19. However, it is still crucial to determine which (procedural) rules can be simplified so that the benefits thereof do not result in an even greater burden for other stakeholders or affect the public interest. Basically, red tape is defined as the objective or perceived burden of public policies, rules and regulations, or other government interventions that produce negative effects for stakeholders in terms of the required costs, time, or organizational and procedural changes involving the addressees of authoritative acts, especially businesses (Bozeman 1993
; Gallo et al. 2014
). This article therefore provides an analysis of amendments to the Slovenian GAPA over the past twenty years (2000–2020) in terms of conciliation between the necessary protection of the public interest and positive debureaucratization.
The research question discussed herein is: do the amendments to the Slovenian GAPA that are proclaimed as debureaucratization ensure the balance between public interest and individual private interests of the parties in administrative relations? This article focuses on the importance of the GAPA as the umbrella law. The aim of this research was to examine the amendments to the Slovenia GAPA and thus to identify the main needs and limitations regarding debureaucratization of administrative procedures. The purpose of this article was to formulate generalized findings and recommendations for any future modifications of such kind in comparable countries.
2. Methodological Outline and Limitations
To address the above research question about the Slovenian GAPA modifications in the framework of proclaimed debureaucratization, a qualitative approach was applied. The topic is highly legally determined; accordingly, various qualitative methods were used to verify our hypothesis. Quantitative insights are often not possible since no exact measurements (e.g., on the impact of GAPA modifications) are available. However, there are other methods that strive for objectivity, such as surveys among parties and officials, the content analysis of scientific literature, or the statistical analysis of indicators related to the issued administrative acts and legal remedies. Nonetheless, these were not selected as the aim of this research was limited to a general overview of all GAPA amendments over the past twenty years through the lenses of declared debureaucratization.
The relevant GAPA modifications aiming at simplification are mentioned only when and if they are to be considered a role model for the amendments to the GAPA. The hypothesis put forward is: the main drawback of debureaucratization in the general codification of administrative procedure is the protection of the public interest through procedural guarantees. Based thereon, the procedure should be simplified mainly by modifying sector-specific regulations and adapting to the specific needs in the field. Moreover, parallel organizational, managerial, and other measures in public administration should be put in force to achieve the optimum effects of the law. Whenever there is a coherent approach to the reforms that combine legal, digital, organizational, and managerial measures, positive impact is shown, to the extent of the deep transformation of public services.
The assumption about the GAPA not being the main tool to introduce simplification is verified with qualitative research approaches—such as the dogmatic, normative, and comparative methods and case studies of GAPA amendments—and the evaluation method. Although scarce, these methods can provide an overall diagnosis of the situation. Being aware of the limitations of research, further analyses are envisaged. Firstly, the paper is based on qualitative methods only, which are not as objective as quantitatively grounded data. Secondly, the analysis presented is therefore diagnostic, which calls for ongoing and upgraded research in the future. In order to overcome these deficiencies at least to a certain extent, various sources of literature and comparative studies are examined, while the Slovenian GAPA and its amendments are assessed in the light of respective findings, although subjectively. In the future, broader and empirically substantiated analyses are required in order to incorporate more countries and acquire empirical data. This approach has already been used as a accepted model, although national systems in various countries often express a lack of quantitative measurements (see Auby 2014
; Koprić et al. 2016
; Dragos et al. 2020
The main approach provided is the analysis of individual amendments to the GAPA between its enforcement in 2000 and 2020, which the proposing bodies declared as debureaucratization. This section contains a methodological and a substantive part. The substantive part evaluates the purpose and effects of the ten GAPA amendments over the last two decades, including the adjustments resulting from the trends in the EU and the COVID-19 pandemic and the lack of necessary interventions. One of the ways to assess the modifications more objectively is to present a clear structure of all GAPA amendments as well as to evaluate the ones aimed at simplification through the main indicators of better regulation (e.g., the necessity of legal rules to achieve a specific objective, transparency, effects for various stakeholders, proportionality).
As regards the structure of the article, Section 3
defines the role of law in administrative relations, their peculiarities with overriding public interest when in conflict with individual rights of the parties, and the consequent codification and debureaucratization in administrative procedures. Here, attention was paid to highlighting the GAPA as a systemic law (lex generalis), providing fundamental principles and rights in terms of good administration. Section 4
brings forward the main results as revealed by the analysis of individual amendments to the GAPA in Slovenia in the last twenty years that were aimed at debureaucratization. These modifications were critically evaluated in terms of their necessity, aims and actual effects, while special attention was paid to the amendments in relation to COVID-19, which seem to correspond to a possible permanent simplification of the GAPA (such as e-applications or e-services with less formalities than stipulated in the current law). Section 5
follows, which is dedicated to a broader discussion and evaluation of results, confirming the initial hypothesis that debureaucratization should be sought by means of sector-specific law rather than by the GAPA, since the latter functions predominantly as a tool to protect the public interest. This section also provides several recommendations for the Slovenian regulator to improve the current GAPA in order to overcome its obvious deficiencies that do not contribute to good administration or even hinder the efficient protection of general administrative safeguards characteristic of the European setting. The article ends with a short conclusion.
As administrative procedure is a key process or method for implementing public policies, it must change in line with the changing objectives of public administration. Administrative procedure is undoubtedly a tool whereby administrative institutions carry out their mission, and as such, a key element for assessing the efficiency of the administrative system and identifying possible improvements for the economy, the civil sphere, and society as a whole. Therefore, new approaches are being developed in the regulation and conduct of administrative procedure, especially towards debureaucratization. Such orientation indeed makes sense, as law is supposed to play an integrative societal role. However, while enthusiastic about the many positive results of debureaucratization (e.g., digitization), care must be taken to ensure that changes are systemic and well considered. Otherwise, there are more detrimental effects than added value. In particular, the efforts towards an economy of procedure should not overlook the need for a substantive assessment of conflicts of interest between individuals and the public interest and the constitutional rights of the parties.
The governmental and parliamentary policies implemented through the umbrella law should not be the sum of sector-specific policies or only partially justified and systemically unconsidered measures, but should be coordinated and strategically steered. However, it can be established for the general codification of administrative procedure in Slovenia that debureaucratization is merely a subject of political discourse, while there is no real breakthrough because of the lack of a systemic approach. This is evident, for example, in the Slovenian Public Administration Development Strategy until 2020, which does not provide any operational improvement or guideline for sectoral change, claiming even that the line ministry is not responsible for sector-specific policies (Kovač 2017
). Furthermore, certain improvements are introduced e.g., in taxes but not in social affairs, or in the registration of companies but not regarding the greater flexibility of their transformation and deletion from the register. In other words, declarations in strategies and partial legislative changes are not sufficient for effective debureaucratization (Karpen and Xanthaki 2017
; Kovač and Bileišis 2017
; Bozeman 1993
The above experiences show that debureaucratization is a priority item on the agenda of the modern regulation of administrative procedures, but simplification measures should not rely solely on allegedly overburdened authorities or the cost-effectiveness of the procedure. Even comparatively, exemplary solutions must include safeguards for the parties who act in good faith but are nevertheless unfairly affected by such mechanisms. Knowing this is important since partial initiatives should be limited. In fact, despite the limitations, it is obvious that Slovenia is a transition country that adopts some measures which in practice, are not even abstractly in line with the doctrine of better regulation, while others are only partial or temporary. The main problem of Slovenian practice is that ‘efficiency’ is unambiguously understood as simplification and economy rather than the necessity and proportionality of a certain measure, as in almost all cases the same justified goal could be achieved with a more appropriate approach within the basic principles. For example, instead of introducing an ordinary service for the sake of lower costs, the state should negotiate a reduction in the prices of postal services offered by the national post which, after all, is a state-owned company. Instead of excluding appeal, non-suspensiveness should apply, while instead of positive fiction in the case of administrative silence, work should be organized more efficiently. The speed and manner of decision-making must be subordinated to the substantive objective of the procedure. In an administrative case, the ratio of the procedure is the optimal exercise of rights and legal interests, i.e., a positive status of individual parties in relation to the authorities as well as the effective protection of the public interest in the implementation of public policies. Procedural rules must not be intended to circumvent, evade or misuse the purpose of sector-specific regulations that define the legally protected interests of the participants in the procedure. Procedural law should instead serve to support the values protected by substantive law, such as equality and anticorruption (Moynihan et al. 2015
). However, if it exists as a political decision, procedure must be regulated in accordance with fundamental administrative principles; otherwise, legal certainty and equality are encroached upon.
As far as the system is concerned, if an institution is suitable for a certain or several administrative areas (e.g., mediation; Dragos and Neamtu 2014
), it should be regulated by sector-specific regulations, not by lex generalis. This applies to most public law relations with very different subject matters of procedure. Moreover, if a specific administrative area does not require the protection of the public interest or of the constitutional rights of the parties, it should be deregulated. If, however, the authorities establish that regulation is necessary, the procedure should be regulated ‘in full’. After all, the essence of the administrative procedure is to confront the prescribed conditions in the public interest for the acquisition of a right or the imposition of an obligation on an individual party. If such a procedure is not carried out, one cannot speak of meritorious assessment, because merit is interpreted as a substantive expression of fulfillment of the prescribed conditions in a specific case. In the event of the fiction of a recognized right or legal interest—which is a frequent example of debureaucratization—however, the meritorious assessment is by definition absent, which means that the purpose of the regulation is not fulfilled. In such a case, the administrative procedure does not make sense, because without a meritorious assessment, the administrative procedure would truly be just an unnecessary administrative burden (Harlow and Rawlings 1997
Like legal regulation in general, administrative procedures need to be regulated and implemented while balancing the democracy of authority and administrative rationality. A systemic approach is crucial in such regard, in the legal as well as organizational and managerial sense. Otherwise, the danger is not simply that the core aims of administrative law will not be realized, but also that the actual ways in which administrative government is constrained and strengthened will not be recognized (Metzger 2015
). This means that the specific objectives of public policies should be set first and then harmonized at the government level. This is how the public interest is defined when it spills over into a valid regulation. Procedural regulation should follow substantive law purposes and standards in order to achieve the desired substantive results, while ensuring the fundamental constitutional rights of the parties. Thus, also procedural rules become a component of the result. A modern regulation is expected to introduce at least less procedurally programmed decision-making also in the legal orders traditionally based on the letter of the law. This is how legitimate debureaucratization is achieved, yet due to the heterogeneity of administrative areas, it should be brought by sector-specific regulations rather than by lex generalis. The GAPA should be simplified in terms of differentiation between various types of procedures (e.g., with less details in public services compared to repressive inspection measures) and through systemic simplifications, such as greater and less formalized digitization. The adopted rules need to be constantly evaluated in order to be further improved, while striking a balance between social reality needs and legal certainty.
Debureaucratization is indeed crucial in terms of procedure if, e.g., the conditions for entrepreneurial activity are to be preserved while respecting other protected social values (Virant and Kovač 2010
). It is therefore not surprising that most changes generally relate to procedural laws. In Slovenia, it seems appropriate to revise the umbrella law, i.e., the GAPA, while also analyzing and modifying legislation in the most relevant areas, starting with small and medium-sized enterprises (Sever et al. 2002
, Buckley 2016
). Furthermore, it is necessary to provide for a completed regulatory loop, as debureaucratization does not take place only at the level of regulation and is, in fact, only one of the steps in the cycle. In the future, more attention needs to be paid to balancing interests and assessing the consequences, as good governance with effective public policies and the lawful conduct of administrative procedures are complementary and not exclusive concepts. From the viewpoint of the rights of defense as the foundation of good administration, the concept of such rights is relatively old since it derives from the theory of a state governed by rule of law (Rechtsstaat) as a classic subject of international and national law. However, modern reforms of general codifications should check its content from the good administration perspective to optimally balance various functions of administrative procedures (Venice Commission 2011
; Hofmann and Mihaescu 2013
). This is important in order to follow the major trends in the EU and to comply with Article 41 of the Charter of Fundamental Rights on a national scale as well.
The initial statement that the main limitation to debureaucratization in the general codification of administrative procedure is the protection of the public interest, is supported both by theory and by the assessment of individual changes in the Slovenian GAPA. Furthermore, this confirms that procedures should be simplified mainly by adapting sector-specific regulations and not the GAPA, which serves general and common standards through which the procedural aspect of the public interest is defined as a limitation to debureaucratization. However, further possibilities are available, both for better law-making and future research.
As regards the research to be carried out on the field, two main directions can be recommended. One is the method of comparative studies, which has already proven fruitful. However, it needs to be taken into account that only those codifications can be compared in depth that follow a certain administrative tradition and adjust to the common European legal framework (Hofmann et al. 2014
). Second, any objective assessment should be based on carefully designed empirical research and the results applied in a sense of databased decision-making. Third, not purely legal but all aspects of public administration should be linked together, predominately in relation to computerization in terms of more efficient and responsive services, agile organization, and proper human resource management (Ongaro 2018
; Metzger 2015
). On the other hand, this calls even more strongly for scholars to conceive such studies and enforce their findings to be considered by the legislature.
Unfortunately, Slovenia does not follow the current European trends relating to the modernization of administrative law and debureaucratization, as would otherwise be expected from an EU country. This conclusion can be made even if only based on a depthless analysis. Namely, Western countries in particular are revising their APAs to make them a tool of dialogue between government and the parties, with selected guarantees and the maximum efficiency of procedure for economic and social development (Auby 2014
; Hofmann et al. 2014
; Dragos et al. 2020
; EC 2020
). Moreover, the said procedures and their legal regulation are highly computerized since public administration in general is in different phases of digital transformation (Misuraca 2019
). This goal should be pursued even more in countries where the APA is outdated and overly formalized, which derives from the times of socialism (Rusch 2014
; Kovač 2019
). Nevertheless, the anticipatory regulation logic may point in the opposite direction, towards more complexity; ideally with simple principles but flexibility to devise sufficiently detailed regulations to enable new models to emerge (Mulgan 2017
). Luckily, in the countries that are small and less eager for development, modernization is encouraged or forced by the EU guidelines, such as the 2016 European Parliament resolution with a Regulation on open, efficient and independent administration (Hofmann et al. 2014
; Kovač 2016
) and the EU sectoral law. The same applies for at least legal transplants from individual countries under the spill-over effect of Europeanization (e.g., the introduction of alternative dispute resolution, guarantee acts, computerization of procedures). A contribution thereto is certainly made by various comparative studies among scholars who provide objective and positive examples. A breakthrough will only be possible if politics closes the ranks and listens to expert arguments for debureaucratization and the public interest as its necessary limitation.