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Heft 7
Meißner Hochschulschriften

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Heft 7
Meißner Hochschulschriften

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mit freundlicher Genehmigung der
Wroclaw Review
of
Law, Administration & Economics
sowie von
De Gruyter Open
unser besonderer Dank für die federführende Begleitung gilt
der (Mit-)Herausgeberin von Heft 7 und Heft 8
Fr. Dr. Renata Kusiak-Winter
Universität Breslau

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Inhalt
CURRENT RESEARCH PROBLEMS IN ADMINISTRATIVE STUDIES IN POLAND
AND GERMANY .................................................................................................... 13
RENATA KUSIAK-WINTER
THE EVOLUTION OF COMPARATIVE ADMINISTRATIVE LAW STUDIES ............ 17
RENATA KUSIAK-WINTER
1
INTRODUCTION ......................................................................................................... 17
2
THE NEEDS OF ACADEMIC RESEARCH .............................................................. 19
3
THE NEEDS OF THE LEGISLATURE ....................................................................... 23
4
THE NEEDS OF THE EXECUTIVE AND THE NEEDS OF THE JUDICATURE .. 28
5
CONCLUSION ............................................................................................................. 30
THE AREA AND ASPECTS OF POLISH AND GERMAN STUDIES ON PUBLIC
ADMINISTRATION ................................................................................................. 37
MAGDALENA TABERNACKA
SELECTED ISSUES CONCERNING PUBLIC TASKS OF THE COMMUNES IN
POLAND AND GERMANY ..................................................................................... 49
BARBARA ZYZDA
1
INTRODUCTION ......................................................................................................... 49
2
THE LEGAL AND INSTITUTIONAL POSITION OF THE COMMUNE IN
POLAND AND GERMANY ....................................................................................... 50
3
CARRYING OUT PUBLIC TASKS THE COMMUNES IN POLAND AND
GERMANY ................................................................................................................... 55
4
CONCLUSION ............................................................................................................. 58
ADMINISTRATIVE SPECIALIST STAFF IN SAXONY
TOPICAL CHALLENGES AT
THE EXAMPLE OF THE MEISSEN UNIVERSITY OF APPLIED ADMINISTRATIVE
SCIENCES .............................................................................................................. 63
FRANK NOLDEN
1
INTRODUCTION ......................................................................................................... 63

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2
OUTLINE OF THE CHALLENGE ............................................................................... 63
3
CONSEQUENCES ....................................................................................................... 66
4
DEMAND ON THE FEDERAL STATE LEVEL UNTIL 2030 .................................. 69
5
MEASURES TAKEN BY MEISSEN UNIVERSITY OF APPLIED
ADMINISTRATIVE SCIENCES .................................................................................. 69
6
POSSIBLE STRATEGIES OF THE FREESTATE ....................................................... 71
7
INCREASING THE ATTRACTIVITY OF THE CIVIL SERVICE .............................. 72
8
CONCLUSION ............................................................................................................. 72
HUMAN RESOURCES IN PUBLIC ADMINISTRATION
CURRENT CHALLENGES
AND EXPECTATIONS (THE POLISH-LOWER SILESIAN PERSPECTIVE) .............. 73
JERZY KORCZAK
1
INTRODUCTION.......................................................................................................... 73
2
THE CHARACTERISTICS OF THE POLISH CIVIL SERVICE LAW ..................... 75
3
ANALYSIS OF EMPLOYMENT DATA AND DEMOGRAPHIC STRUCTURES OF
PUBLIC ADMINISTRATION PERSONNEL IN POLAND ...................................... 78
4
ANALYSIS OF EMPLOYMENT DATA AND DEMOGRAPHIC STRUCTURES OF
PUBLIC ADMINISTRATION PERSONNEL IN LOWER SILESIA ........................ 82
5
CONCLUSION ............................................................................................................. 86
GENERAL RIGHTS AND OBLIGATIONS IN THE GERMAN SOCIAL SECURITY
LAW ....................................................................................................................... 89
MATTHIAS THUM
1
INTRODUCTION.......................................................................................................... 89
2
THE ASPECT OF `CONSULTING` (ART 14 SOCIAL SECURITY CODE NO I )92
2.1
CONTENT ..................................................................................................................... 92
2.2
RIGHT WITHOUT A LEGAL CONSEQUENCE? ..................................................... 93
2.3
THE RIGHT TO REINSTATEMENT IN THE GERMAN SOCIAL LAW ............... 94
2.4
CONCLUSION ............................................................................................................. 94
3
APPLICATION AND EXECUTION OF SOCIAL BENEFITS ACCORDING TO
ARTS 16 AND 17 SOCIAL SECURITY CODE NO I ............................................. 95
3.1
APPLICATION (ART 16 SOCIAL SECURITY CODE NO I) .................................. 95
3.2
EXECUTION OF SOCIAL RIGHTS ACCORDING TO ART 17 SEC 1 SOCIAL
SECURITY CODE NO I ............................................................................................... 95
4
OBLIGATIONS AND DUTIES OF COOPERATION BY THE CITIZEN
ACCORDING TO ARTS 60-64 SOCIAL SECURITY CODE NO I ....................... 96

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4.1
DUTIES OF THE APPLICANTS ................................................................................. 96
4.2
BORDERLINES OF DUTIES ...................................................................................... 97
4.3
LEGAL CONSEQUENCES IN THE CASE OF VIOLATING COOPERATION
DUTIES ......................................................................................................................... 97
4.4
LEGAL CONSEQUENCES IN THE CASE OF MAKING UP FOR COOPERATION
....................................................................................................................................... 98
4.5
WEAK DUTIES
WEAK STATE? ............................................................................ 98
5
CONCLUSION ............................................................................................................. 98
SOCIAL RIGHTS AND OBLIGATIONS: THE RELATIONSHIP BETWEEN CITIZENS
AND THE ADMINISTRATION OF SOCIAL LAW IN POLAND ............................. 101
DOMINIKA CENDROWICZ
1
INTRODUCTION ....................................................................................................... 101
2
THE CONCEPT OF SOCIAL RIGHTS AND SOCIAL BENEFITS IN POLAND 102
3
SOURCES OF SOCIAL RIGHTS AND SOCIAL BENEFITS IN POLAND ......... 103
4
THE RIGHT TO SOCIAL ASSISTANCE AS ONE OF THE INDIVIDUAL’S
SOCIAL RIGHT IN POLAND ................................................................................... 105
5
SOCIAL ASSISTANCE BENEFITS ACCORDING TO THE SOCIAL ASSISTANCE
ACT .............................................................................................................................. 107
6
SOCIAL BENEFITS IN POLAND OUTSIDE THE SOCIAL ASSISTANCE ACT 108
7
SOCIAL ADMINISTRATION OBLIGATIONS IN POLAND ................................ 111
8
CONCLUSION ........................................................................................................... 113

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Liebe Leserinnen, liebe Leser,
es ist mir heute eine besondere Freude, Ihnen mit Heft Nr 7 der
Meißner Hochschulschriften erstmalig eine englischsprachige
Ausgabe unserer wissenschaftlichen Schriftenreihe vorlegen zu
können. Die Beiträge zu Heft 7 sind im Rahmen einer inter-
nationalen wissenschaftlichen Konferenz mit dem Titel „Current
research problems in Administrative studies in Poland and
Germany“ an der Universität Breslau im Oktober 2016 entstanden.
Aufgrund des Umfangs der Beiträge werden die Beiträge zeitnah
in Heft Nr 8 der Schriftenreihe fortgesetzt und abgeschlossen.
Die insgesamt fünfzehn Beiträge sowohl deutscher als auch
polnischer Autoren/-innen wurden bereits im Vorfeld zu den
aktuellen Heften der Schriftenreihe sowohl in der Wroclaw Review
of Law, Administration & Economics als auch auf der
Internetplattform De Gruyters Open international veröffentlicht.
Sie decken eine große Bandbreite verschiedenster Themen aus
dem
Bereich
der
öffentlichen
Verwaltung
und
den
Rechtswissenschaften ab. So z.B. zu den öffentlichen Aufgaben
der Kommunen in Polen und Deutschland, zum Verhältnis
zwischen Bürgern und Sozialverwaltung, zur vergleichenden
Rechtwissenschaft, zur Ressource Mensch in der Verwaltung oder
der Besteuerung der öffentlichen Hand in Deutschland und Polen.
Durch die Betrachtung der Themen sowohl aus deutscher als auch
polnischer Sicht ergeben sich interessante Gemeinsamkeiten, wie
nicht anders zu erwarten aber auch Abweichungen. In jedem Fall
stellen die Hefte 7 und 8 der Meißner Hochschulschriften einen
kleinen Beitrag zur Stärkung des gegenseitigen Verständnisses in
einem zusammenwachsenden Europa der Regionen dar.
Mein besonderer Dank gilt an dieser Stelle Fr. Dr. Renata Kusiak-
Winter von der Universität Breslau, die nicht nur bereits die
internationale wissenschaftliche Konferenz in Breslau, sondern
auch die nachfolgenden Publikationen federführend begleitet hat.
Vorwort
Prof. Frank Nolden
Rektor

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Ich wünsche Ihnen eine angenehme und informative Lektüre.
Ihr Frank Nolden
Meißen im September 2018

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This publication is the result of a Polish-German scientific
conference entitled
“Current research problems in
Administrative Studies in Poland and in Germany”. The
conference took place on October 21
st
and 22
nd
, 2016 in
Wrocław and was organised
as part of the Lower Silesian
Meeting of Researchers in Administrative Studies. The event
was attended by researchers, academic teachers and a large
group of students (including PhD students) of the Faculty of
Law, Administration and Economics of the University of
Wrocław
and the Meissen University of Applied Administrative
Sciences, Centre for Continuing Education (Hochschule Meissen
und Fortbildungszentrum). The thematic scope of the
conference was focused on a set of civilizational challenges
and problems faced by public administration entities in both
countries.
After a period of systemic transformation and after Poland’s
accession to the European Union the country has gone through
a period of organising international meetings and conferences.
The objective of these conferences was to facilitate the mutual
learning of legal systems coupled with an identification of
similarities and differences between particular national models
of public administration. The comparative studies hitherto
conducted indicate clearly that the structural and functional
layout of the Polish public administration system has a number
of connections and shared features with its German
counterpart
despite the fact that there are, unfortunately,
significant differences in the levels of public spending in the
CURRENT RESEARCH PROBLEMS IN
ADMINISTRATIVE STUDIES IN
POLAND AND GERMANY
RENATA KUSIAK-
WINTER
PhD in Law,
Assistant Professor
at the Institute of
Administrative
Sciences, Faculty
of Law,
Administration
and Economics,
University of
Wrocław;
renata.kusiak-winter
@uwr.edu.pl
DOI:
10.1515/wrlae-
2015-0045
First publication:
Wroclaw Review
of Law,
Administration
and Economics
(WRLAE, Vol. 7,
No. 1 (2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter Open
https://www.degru
yter.com

| 14
two countries. Currently, the preferred object of comparative studies between
the two countries is problem-solving and modes of addressing the challenges of
modernity as well as presenting recommended changes in legislation or
improvements in the methods of public governance. This is the current object of
study for the scholars who deal with administrative studies, and, at the same
time, a determinant of teaching and training curricula at universities and other
tertiary education institutions.
Although the history of cooperation between experts in administrative law from
Saxony and Lower Silesia is not a very long one, it is rich in its content. The
collaboration was launched in May 2015 during a Polish-Czech-German
conference organised at the Faculty of Law, Administration and Economy of the
University of Wroclaw. The
conference’s lead theme was
“European territorial
cooperation for the development of the border areas of Poland, Czech Republic
and Germany.”
Later that year, in August, students from the Faculty of Law,
Administration and Economy took part in an International Summer Course in
Meissen where, in addition to inspiring discussions with politicians and
representatives of ministries of Saxony, the focus was also on integrating the
community of students and PhD students from Germany, Poland and the Ukraine.
The scope of subjects discussed during the last conference resulted in a selection
of articles for this volume and was developed after consultations with research
and teaching staff of both universities. This volume, entitled
“Current research
problems in Administrative Studies in Poland and in Germany”,
reflects both the
object of research and elements of the curriculum for future civil servants
applied at both universities. The articles constitute a perfect point of departure
for the preparation of future joint research projects in the field. Furthermore,
from a practical angle the volume facilitates research aimed at finding mutually
applicable solutions to existing problems.
A characteristic feature of most of the articles presented in this volume No 7 and
8 is the fact that they address concrete thematic issues from the perspective of
both Poland and Germany as analysed by scholars from Wrocław
and
Meissen.
The resulting dual viewpoint on the same issues shows the complexity of the
determinants which impact administration and its functioning in both countries.
In the first part of this edition of WRLAE we present some questions concerning
comparative studies in administrative law, with particular emphasis on the links
between the public administrations of Poland and Germany (Renata Kusiak-

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Winter, Magdalena Tabernacka, Barbara Zyzda). According to the authors, the
essence and importance of the contemporary comparative studies in
administration must be perceived in the broad context of their cognitive
objectives, the quest for new directions for the development of administrative
comparative studies, and the necessity to build bridges and communication
channels, learn from others and inspire the undertaking of new forms of
structuring administrative phenomena.
Further subjects in the volume No 7 and 8 are presented in parallel by
researchers from Meissen
and Wrocław.
Frank Nolden and Jerzy Korczak describe
the current challenges and expectations facing the system of education and
management of human resources in public administration. The authors quote
recently acquired statistical data from Saxony and Lower Silesia. While the
German perspective is dominated by unfavourable demographic developments in
the country, in Poland the quality of HR management in Lower Silesia is
determined by a low quality of the relevant administrative regulations passed
down by the central lawmaker. The resulting disadvantageous HR situation of
this region of Poland is no different than that of the
country’s other
regions.
The next subject presented in the volume No 7 and 8 is that of social assistance,
in particular the relationship between citizens and the social assistance
administration. In their articles, Matthias Thum and Dominika Cendrowicz
discuss some elements of the system of social assistance with its fundamental
principles of equal access and social justice. The German article sees highly
detailed and complicated regulations as a major drawback of the welfare system,
whereas the Polish article, to the contrary, presents the extensive system of legal
regulations as a guarantee for the fulfilment of social needs, and a guarantee for
the correct shaping of the
state’s social
assistance policy.
Further tandem articles by Polish and German authors focus on selected aspects
of financial management and financial law: Isabelle Jänchen and
Przemysław
Pest analyse financial equalization instruments by taking two different
perspectives: a broad one and a narrow one. Isabelle Jänchen adopts a broad
European perspective and looks at the causes of the lack of comparable metrics
for the assessment of integrated budget management across different European
countries. Przemysław Pest, in turn,
focuses on a local and regional perspective
on equalization of revenues of Local Self-Government Units (LSGUs) in Poland.

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Another question regarding public finance addressed by the articles is the
taxation of public entities in Poland and in Germany. Fritz Lang, Andrzej Huchla
and Pierre Frotscher analyse the relevant legal regulations. German lawmakers
have introduced separate tax obligations for public entities. In turn, Polish acts
of tax law do not even contain the general category of public sector entities.
Despite that difference it turns out that, due to Poland’s EU membership, it is of
primary importance to facilitate unrestrained competition and avoid preferential
tax treatment of public entities
a requirement which is not always respected in
both countries.
The
volume’s
last subject presented in the Polish-German tandem mode is the
problem of communication between bureaucracy and citizens as well as
entrepreneurs, seen through the prism of information asymmetries. Claudia Lubk
perceives the asymmetries as a major source of a negative image of bureaucracy
in Germany, and goes on to indicate a number of possible strategies to remedy
the problem. In turn, Agnieszka Chrisidu Budnik and Justyna Przedańska offer a
critical analysis of the Polish public procurement system in which the lawmakers
did not take into account the phenomenon of information asymmetry in the
communication between bureaucracy and entrepreneurs.
The articles by Polish and German researchers presented in this volume No 7 and
8 and focused on the same or similar subjects indicate clearly that despite the
distinctness of the two legal, economic, financial and demographic systems, and
despite different organisational cultures which determine the structures and
functions of public administration, the results of the scientific research presented
here have one common denominator. That denominator is the quest for objective
truth, as well as posing inquisitive and challenging questions concerning the
functioning of public administration, its social reception and the desired
directions for its future development.
I would like to express my heartfelt thanks to the Authors of the articles in this
volume, in particular to our friends from the Meissen University: thank you for
your important and inspiring contributions to the final shape of this edition of
the Wroclaw Review of Law, Administration and Economics. Let me also express
my sincere hope that the results of the research presented here will constitute an
incentive for further in-depth research initiatives and new joint research and
teaching initiatives being taken up by our Universities.

image
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1
INTRODUCTION
Administrative law is traditionally viewed as a distinct legal
discipline with a high rate of inward looking elements which
convey the uniqueness of the set of political, social, historical
and economic conditions inherent in each state
hence,
different from any solution followed elsewhere. As a basic
instrument of control applied to social relationships in the
state, administrative law has to be modified and adapted as
required by the ever changing reality.
This necessity of responding to all changes in the immediate
environment implies two important features of administrative
law
its flexibility and its fragmentary nature which appear to
contrast with the other branches of law. For example, civil law
or criminal law are codified and comprise certain cannons of
universal legal institutions such as a contract, inheritance or
imprisonment or re-offending. Each of them should individually
demonstrate a high degree of resistance to any political or
economic changes. Encapsulated in a single act that provides a
timeless guarantee of human and civil rights and regulates the
most important systemic aspects of the state, constitutional
law is rather reasonably expected to demonstrate a high degree
of stability.
Administrative law is an entirely different matter being
complex and heterogeneous, the concept of codification was
abandoned at the start. It is the constantly changing reality of
THE EVOLUTION OF COMPARATIVE
ADMINISTRATIVE LAW STUDIES
RENATA KUSIAK-
WINTER
PhD in Law,
Assistant Professor
at the Institute of
Administrative
Sciences, Faculty
of Law,
Administration
and Economics,
University of
Wrocław;
renata.kusiak-winter
@uwr.edu.pl
DOI:
10.1515/wrlae-
2015-00465
First publication:
Wroclaw Review
of Law,
Administration
and Economics
(WRLAE, Vol. 7,
No. 1 (2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter
Openhttps://www.
degruyter.com

| 18
the administrative process that forces amendments to the legislation. One should
bear in mind the fact that administrative law reflects the political vision of the
ruling party. Therefore it may rather be hard to draw conclusions based on the
letter of the law. The danger of “language traps” appears exceptionally realistic,
also in the context of the whole realm of administrative studies. For example, on
the one hand, administrative policy or sociology of administration exploits the
universal language grid developed in political science or sociology and
understood in all languages in the same way
1
. On the other hand, translating
and, what is more, understanding domestic administrative institutions in
different countries in a harmonised way poses a daunting challenge
2
. The reason
is that the conceptual framework of administrative law reflects the structural
qualities of a single state which are deeply embedded in one particular system of
administrative law
3
. In this spirit, one may adduce the following frequently
quoted words of Ulrich Scheuner: “the structure of the state administration
provides a special reflection
of its unique nature and identity”
4
. This line of
thinking is also followed by Jan Jeżewski,
who notes that “historical conditions
have made an impact on many solutions applied to the member state
administrative structures
which are, relatively, the least prone to
harmonisation (institutional autonomy)”
5
. Therefore it appears that (in the case
of an individual state) administrative law has built its own development paths,
its unique discourse paradigms and self-observation mechanisms as regards to its
doctrine and case-law
6
.
__________
1
Geert Bouckaert, John Halligan, Managing Performance: International Comparisons
(Routledge 2008); Sabine Kuhlmann, `Performancesteuerung und Leistungsvergleich:
Verwaltungsmodernisierung
im
kontinentaleuropäischen,
angelsächsischen
und
skandinavischen Kontext` in Joachim Beck, Fabrice Larat (eds), Reform von Staat und
Verwaltung in Europa
Jenseits von New Public Management? (Nomos 2011) 90.
2
Veith Mehde, `Verwaltungswissenschaft, Verwaltungspraxis und die Wissenschaft vom
öffentlichen Recht
Eine Bestandsaufnahme` in Veith Mehde, Ulrich Ramsauer, Margrit
Seckelmann (eds), Staat, Verwaltung, Information. Festschrift für Hans Peter Bull zum 75.
Geburtstag (Duncker&Humbolt 2011) 686.
3
Thomas Fleiner, `Rechtsvergleichende Überlegungen zum Staatsverständnis in Ländern mit
anglo-amerikanischer und kontinentaleuropäischer Rechtsordnung
Rechts- und
staatsphilosophische sowie kulturelle Aspekte` in Peter Häberle, Martin Morlok, Wassilios
Skouris (eds), Staat und Verfassung in Europa (Nomos 2000) 46.
4
Ulrich Scheuner, `Der Einfluss des französischen Verwaltungsrechts auf die deutsche
Rechtsentwicklung` (1963) 17/18 Die Öffentliche Verwaltung 714.
5
Jan Jeżewski, `Porównawcze badania prawa a europeizacja prawa administracyjnego` in
Zbigniew Janku, Zbigniew Leoński,
Marek Szewczyk, Michał Waligórski, Krystyna Wojtczak
(eds), Europeizacja polskiego prawa administracyjnego (Kolonia Limited 2005) 55.
6
Eberhard Schmidt-Aßmann, Stéphanie
Dagron, `Deutsches und französisches
Verwaltungsrecht im Vergleich ihrer Ordnungsideen
Zur Geschlossenheit, Offenheit und

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The above described inward looking character was the reason for administrative
law being kept on the siding of legal comparative studies for many years. What
made administrative law provide a focus for an intensive comparative inquiry
was an urgent need for practical applications that was triggered by the
expanding European integration and the globalisation of social and economic
processes. The aim of this paper is to show the complex premises applied in
comparative studies of administrative law and discuss the needs specific to
academic research and practical applications
the legislature, the judiciary and
the executive. I will demonstrate that the research on comparative law
significantly changed its ways and function over the years, but it has made a
permanent contribution to a deeper reflection on applicable law.
2
THE NEEDS OF ACADEMIC RESEARCH
Comparative legal research is originally and primarily premised on a scholarly
urge to explore the legal solutions of another state
a motivation that is derived
from one’s curiosity and determination to improve one’s knowledge. It should be
emphasised that comparative studies have a cognitive purpose, and thereby an
academic value, even if no clear and precise research goal has been set.
Nonetheless, in reality, they always provide a starting point for further research
projects. They facilitate universal communication among scholars in academia,
support the teaching of law and improve the quality of studies on one’s own
legal order
7
.
Bearing in mind the centuries-old tradition of civil law that dates back to the
period of the Roman Empire, administrative law
as developed in the
continental Europe in the 19
th
century
is a young discipline of law. When the
primary premises of comparative research in these two realms of law are
contrasted it becomes clear that, due to the common roots and shared traditions,
the trend in civil law was to unify or at least harmonise its major institutions
beyond borders. Administrative law was however created by each sovereign state
separately and therefore the focus was on the learning aspect
8
.
__________
gegenseitigen Lernfähigkeit von Rechtssystemen` (2007) 67 Zeitschrift für ausländisches
öffentliches Recht und Verwaltungsrecht 395.
7
Thomas Groß, `Rechtsvergleichung` (2015) 48 Die Verwaltung 581.
8
Christoph Schönberger, `Verwaltungsrechtsvergleichung: Eigenheiten, Methoden und
Geschichte` in Armin von Bogdandy, Sabino Cassese, Peter M. Huber (eds), Handbuch Ius
Publicum Europaeum: Verwaltungsrecht in Europa: Wissenschaft, vol 4 (C.F. Müller 2011)
499.

| 20
Once applied to the reality of Poland, the above thinking will reveal an important
special case. The period of time when administrative law was created and formed
also saw Poland losing its statehood. It is symptomatic, in particular if we
recognise the natural and indispensable bond between the administration and
the state. After all it was the state that would establish administrative law and
provide the foundation of a strong and efficient administration in order to attain
its ambitious goals and strengthen its position. Where there was no state there
was
de facto
no administration. With no statehood the comparative studies
conducted at that time by local experts referring to the best European models
9
fulfilled an important integrating role when independence was regained. The
research was a unique and important link for administrative law to define itself
as a branch of law and gain coherence as a separate and self-contained research
discipline. Interestingly, the first Polish handbook of administrative law by Antoni
Okolski was inevitably comparative by nature and based on the laws of Prussia,
Austria and Russia
10
. Furthermore, the restoration of the Polish state in 1918 was
naturally accompanied with resorting to the legal solutions followed by the
former partitioners as much as those applied in France or England. They were
subsequently adopted to serve the purpose of the country’s territorial division
and administrative courts. One may hazard a guess that in the absence of the
state, the inspiration that comes from the solutions offered by a foreign system
of administrative law and the ownership of these solutions may foster a sense of
continuity of the state, and in the long term, promote creating an identity in the
meaning of legal tradition
11
.
The history of comparative law studies in Poland shows that comparative
research played an important role not only in the days of statelessness but also
in the era of the
Polish People’s Republic, known by the acronym of the PRL. A
monograph on the legal position of an individual to the activities of public
__________
9
Fryderyk hrabia Skarbek, Gospodarstwo narodowe. Elementarne zasady gospodarstwa
narodowego, vol I-II, (Biblioteka Wyższej
Szkoły Handlowej 1820); Józef Bohdan
Oczapowski, Policyści
zeszłego wieku i
nowożytna nauka administracji. Historia nauki
administracji w XVIII wieku (Drukiem S. Orgelbranda Synów 1882); Franciszek Ksawery
Kasparek, Prawo polityczne ogólne z uwzględnieniem austriackiego razem ze wstępną
nauką ogólną o państwie, vol I-II (Kraków 1877-1881).
10
Antoni Okolski, Wykład prawa
administracyjnego oraz prawa administracyjnego
obowiązującego w Królestwie Polskim (vol. I
1880, vol II
1882, vol III
1884). See
Eugeniusz Ochendowski, `Pierwszy polski podręcznik prawa administracyjnego. Wstulecie
wydania podręcznika A. Okolskiego` (1981) 1 Organizacja, Metody, Technika 27– 28.
11
Andrzej Wróbel, `Landesspezifische Ausprägungen: Polen` in Armin von Bogdandy, Sabino
Cassese, Peter M. Huber (eds), Handbuch Ius Publicum Europaeum: Verwaltungsrecht in
Europa: Grundlagen, vol 3 (C.F. Müller 2010) 238, 243 et seq.

| 21
authorities in some West European States by Franciszek Longchamps de Bérier is
a meaningful example
12
. By describing western standards his work induced
reflection on the absence of safeguards protecting the individual against the
lawlessness of the people’s rule and thereby it turned out to be a voice of silent
critique
13
. Comparative law played an instrumental role to this effect by
integrating different circles of administrative professionals around the
fundamental values of public administration
the values of the democratic
state.
In its early days comparative law had yet one more important function
the one
of building
the systematics of administrative law. Considered the “cradle” of
administrative law, France became the destination for seeking its best models.
The French solutions found their great apologist in Otto Mayer. Before writing his
handbook that
de facto
established administrative law in Germany, he had
completed a thorough analysis of French institutions
14
. The greatest credit should
probably go to him for conceptualising the administrative act as the
fundamental form of the activities of the public administration in the state of
law
15
. Interestingly, the concept of the administrative act was adopted by most
of European states in the form proposed by Otto Mayer rather than imported
directly from France, a clear evidence of the importance of comparative
reflection in administrative law
16
.
The development of the public service doctrine and the service administration
doctrine is another important example showing how the
comparative method is employed in the quest for a systematics of administrative
law terms and institutions. In this case the starting point was to analyse the
French institution of
service public
from the perspective proposed by Léon
Duguit and his followers including such renowned administrative law experts as
__________
12
Franciszek Longchamps de Bérier, Współczesne kierunki w nauce prawa administracyjnego
na zachodzie Europy (Zakład Narodowy im.
Ossolińskich 1968).
13
Irena Lipowicz, `Einfluss des deutschen Verwaltungsrechts auf die Lehre des
Verwaltungsrechts in Polen` (2015) 48 Die Verwaltung 370.
14
Otto Mayer, Theorie des Französischen Verwaltungsrecht (Trübner 1886).
15
Reimund Schmidt-De Caluwe, Der Verwaltungsakt in der Lehre Otto Mayers (Mohr Siebeck
1999).
16
Otto Mayer significantly influenced the development of the first handbooks of
administrative law in Italy and Spain. See Vittorio Emanuele Orlando (ed), Primo trattato
completo di diritto amministrativo (Cammeo&Vitta 1897); Adolfo Posada, Tratado de
Derecho administrativo (Suárez 1893).

| 22
Gaston Jèze or André de Laubadère
17
. On the ground of German law, the
development of this conception into
Lestungsverwaltung
and
Daseinsvorsorge
was fostered by the work of Ernst Forsthoff
18
who exerted a decisive impact on
the work of Polish administrative law experts, such as Tadeusz Kuta
19
or Ernest
Knosala
20
.
The above cited examples show the importance of comparative research for the
making and developing of the classic administrative institutions. It should be
emphasised that in addition to the analysis of foreign law the key method
employed in scientific or scholarly cognition is verifying the dogmatic rationale
that invokes the elementary principles and values underpinning the established
legal solutions in question.
A discussion of the role of comparative studies for the needs and development of
academic research must allow for an account of contemporary problems. In
particular, in the context of European integration it transpires that there is no
raison d’être for a
one-way reception pattern with regard to the transfer of
administrative law dogma from one state to the other. What we can observe in
practice is a multidirectional mechanism of mutual learning with its starting
point being the traditional institutions of administrative law. It is in the course
of the process that they are transformed under the influence of supranational
mechanisms
21
.
The above changes will be best illustrated with the development of the classic
forms of operation employed within administrative law under the influence of
European law. A transnational administrative act relates in many points to the
__________
17
Gilles J. Guglielmi, Une introduction du droit de service public (LGDJ 1994) 5–7.
18
Ernst Forsthoff, Die Verwaltung als Leistungsträger (Kohlhammer 1938); Ernst Forsthoff,
Rechtsfragen der Leistenden Verwaltung (Kohlhammer 1959); Irena Lipowicz, `Pojęcie
administracji świadczącej w doktrynie zachodnioniemieckiej` in Karol Podgórski (ed),
Regulacja prawna administracji świadczącej (Uniwersytet Śląski 1985) 131 et seq.
19
Tadeusz Kuta, Aspekty prawne działań administracji publicznej w organizowaniu usług
(Zakład Narodowy im.
Ossolińskich
1969); Tadeusz Kuta, Funkcje współczesnej
administracji i sposoby jej realizacji (1992) Acta Universitatis Wratislaviensis. Prawo
CCXVII 12 et seq.
20
Ernest Knosala, `Pojęcie administracji świadczącej w polskiej literaturze prawa
administracyjnego` in Karol Podgórski (ed), Regulacja prawna administracji świadczącej
(Uniwersytet Śląski 1985) 16.
21
Stephan
Neidhardt,
Nationale
Rechtsinstitute
als
Bausteine
europäischen
Verwaltungsrechts. Rezeption und Wandel zwischen Konvergenz und Wettbewerb der
Rechtsordnungen (Mohr Siebeck 2008).

| 23
mechanism operating in the different member states
22
but the cooperation
within the European public administration network requires a new
conceptualisation. This type of cooperation does not match any classical
category applied to the cooperation of public entities within a single legal
system of an individual country
23
. This cooperation is highly informal. It involves
exchanging information, coordinating activities and giving recommendations and
guidelines. In accordance with the administrative doctrine, however, new legal
constructs should comply with the same basic requirements and standards as
those set for the cooperation among public entities at the national level.
Therefore, in the comparative perspective we are expected to demand that
democratic control and accountability be enforced, especially when liaising
authorities are not limited to entities from the EU member states but also
originate from thirdparty states
24
.
3
THE NEEDS OF THE LEGISLATURE
It is transfer of law as a fundamental function of comparative legal research that
has come to the fore of the legislative process. Complex codified regulations or
individual legal institutions are not transferred on the one-to-one basis. They are
subject to adjustment and adaptation in the course of the legislative process
25
.
All transfers of laws are guided by the principle of practical legislative need. It is,
however, important to realise that they are accompanied and promoted by a set
of specific conditions.
The first and obvious condition is for the legislator to be open and willing to
explore and exploit other models. From a historical perspective the 19
th
century
is defined as the “age of comparison” in literature. As regards legal scholarship,
the rule of supranational laws of nature came to an end. The shared pan-
__________
22
Luca de Lucia, `Administrative Pluralism, Horizontal Cooperation and Transnational
Administrative Acts` (2012) 5 (2) Review of European Administrative Law 42; Dawid
Miąsik, Andrzej Wróbel, `Europeizacja prawa
administracyjnego −
pojęcia i konteksty` in
Roman Hauser, Andrzej Wróbel, Zygmunt Niewiadomski (eds), Europeizacja prawa
administracyjnego. System Prawa Administracyjnego, vol 3 (C.H. Beck 2014) 22.
23
Jerzy Supernat, `Koncepcja sieci organów administracji publicznej` in Jan Zimmermann
(ed), Koncepcja systemu prawa administracyjnego (Wolters Kluwer 2006) 207.
24
Peter M. Huber, `Grundzüge des Verwaltungsrechts in Europa
Problemaufriss und
Synthese` in Armin von Bogdandy, Sabino Cassese, Peter M. Huber (eds), Handbuch Ius
Publicum Europaeum: Verwaltungsrecht in Europa: Grundzüge, vol 5 (C.F. Müller 2014) 23.
25
A chemical term of “transfer” is deliberately used to make the reader realise law in the
process of transfer is seen as a special laboratory providing capacity to weigh the letter of
law and measure legal reality, see Margrit Seckelmann, `Ist Rechtstransfer möglich?
Lernen vom fremden Beispiel` (2012) 43 Rechtstheorie 425.

| 24
European body of law written in Latin was also discarded. They would be all
replaced by constitutions enacted in national languages and Napoleon would
trigger a large scale consolidation of national law through its codification. The
building up of national awareness and the fostering of a sense of state identity
was accompanied by exceptional openness and a zest to draw on external legal
models. As noted by Christoph Schönberger, the European constitutions enacted
at short intervals were developed as closely interdependent, mutually related
acts and reacted to each other accordingly
26
.
In Poland this opening could only take place when the country regained its
independence in 1918. The reception of the Austrian administrative code, to be
precise one of the bills drafted in 1925, provides an excellent example of the
process. Enacted in 1928 and most recently revised in 1960, the code
27
was given
very favourable reviews and has since continued to successfully serve its purpose
and exert a powerful impact on the subsequent development of the
administrative law and doctrine in Poland. The institution of territorial self-
government of the 2
nd
Republic also exhibited many common features shared
with the models largely followed in the Europe of the day
28
. Considering the
closed character of the political system in the cold war era, it is important to
bear in mind that this type of openness is not inherent or installed once and
forever in legal culture
29
.
Second, what in addition to openness stimulates all law-transfer efforts is the
occurrence of similar problems or issues which have already been addressed with
a comprehensive legal solution by other states. To cite the example of Poland,
after the 1989 transformation of its polity, the country faced a challenge of
passing an administrative law to protect the right to privacy. The Act on the
Protection of Personal Data was enacted in 1997. It reputedly drew on the law of
__________
26
Chistoph Schönberger `Verwaltungsrechtsvergleichung: Einheiten, Methoden und
Geschichte` in Armin von Bogdandy, Sabino Cassese, Peter M. Huber (eds), Handbuch Ius
Publicum Europaeum: Verwaltungsrecht in Europa: Wissenschaft, vol 4 (C.F. Müller 2011)
520-521.
27
Regulation of the President of the Republic of Poland of 22 March 1928 on administrative
proceedings, Dziennik Ustaw
Official Journal of Laws of the Republic of Poland
(hereinafter: Dz. U.) No 36, item 341. For broader treatment see Władysław
Czapiński,
`Nowe prawo o postępowaniu administracyjnym` (1928) 4 Gazeta Administracji i Policji
Państwowej 289 et seq.
28
Jerzy Panejko, Geneza i podstawy samorządu europejskiego (Imprimerie de Navarre 1926);
Tadeusz Bigo, Samorząd terytorialny w nowej konstytucji in Księga pamiątkowa ku czci
Leona Pinińskiego (Komitet Redakcyjny 1936).
29
Janusz
Łętowski, `Comparative Law Science in So Called Applied Fields of Law` (1991) 2
Comparative Law Review 30.

| 25
the federal state of Hesse. In 1970, Hesse passed
the world’s first act on the
processing of personal data by a public administration entity (or an entity
authorised to provide or operate public services)
30
. This example clearly shows
that from the legislator’s angle, the process of transferring laws
must equally
focus on the text of a law and the practical experience of its implementation and
operation. In the above example, the Hessian law had been reviewed and
amended on many occasions in the process of mutual learning and interacting of
the German state legislatures on the federal level. It was not without
significance that a well-established case-law had already existed inclusive of the
Federal Constitutional Court’s decisions
31
. Much as the European legislation
compels the adoption of a new formula for personal data protection to keep pace
with the progress of technology and respond to the increase in data volume on a
gigantic scale
32
, the merits and consequence of the existing law must not go
unnoticed. Inspired by foreign legislation and ably modified to accommodate
specific Polish needs and requirements it is seen as a remarkable achievement of
the Polish legislative effort
33
.
Third, the main focus and dominant object of modern comparative studies
carried out for the needs of the legislature are institutional factors and
determinants. It is true that the institution of federal states provides a natural
platform for a regular transfer of the best legal solutions since federal states
traditionally engage in specific competition in developing the best legislative
models
34
, however the membership in supranational organisations has led to the
development of law transfer on an unprecedented mass scale despite cultural
and linguistic barriers.
__________
30
Lipowicz (n 13) 375.
31
See in particular judgement Bundesverfassungsgericht, BVerfGE 65, 1 (44).
32
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and
on the free movement of such data, and repealing Directive 95/46/EC (General Data
Protection Regulation), OJ L 119, 4.5.2016, 1–88. To take effect from 25 May 2018.
33
As noted by Irena Lipowicz „The (..) regulation of the European Parliament and of the
Council is practically supposed to supersede the current Data Protection Act
our pride
and our own achievement
– in the Polish legal system”, see Irena Lipowicz in
1998-2013
15 Years of the Act on the Protection of Personal Data in Poland (GIODO 2013)
34
In this sense the competition of public entities for “the best” legal regulations has been
discussed in the literature for years now (the so-called competition of legal orders), see
Veith Mehde, Wettbewerb zwischen den Staaten (Nomos 2005); Henning Jensen,
Kommunale Daseinsvorsorge im europäischen Wettbewerb der Rechtsordnungen (Mohr
Siebeck 2015).

| 26
Clearly, European administrative law is a result of mutual receptiveness between
the states and the Union. In order to make and improve European laws the EU
refers to national legal mechanisms which have evolved over time in a specific
cultural environment. Such mechanisms are modified, adapted and diversified.
Once transplanted, they influence the national law order, for example,
indigenous national mechanisms which were originally employed as their
prototypes
35
. In this situation the system may reach a turning point due to the
effect known as a spill-over into national law. A spill-over involves an effect
produced by EU law
through its mandatory presence within the national
system
on such areas of domestic law where EU bodies may not claim any
competence to interfere. A consequence of this process is the convergence of
national law
36
.
Top-down mandatory transfers of law within supranational structures appear to
reveal cultural differences. A useful example is the right to good administration
established under article 41 of the Charter of Fundamental Rights basing on the
original model from Scandinavian culture
37
. The idea of creating a subjective
right of an individual to good administration in the continental systems of public
administration appears to be at odds with the concept of individual rights
derived from the fundamental
rights enshrined in the constitution. The “oddity”
comes from the difference between the Scandinavian tradition that follows the
ideal type of adjective (procedural) law
the ideal type of legal procedure and
the continental (German or French) tradition with its formalist ideal type relating
to the enforcement of fundamental rights
38
. The critics suggest that the transfer
may in this particular case open the door to the harmonisation of national
administrations, albeit with no actual competence on the part of the EU bodies
39
.
__________
35
To quote the example of the protection of legitimate expectations that was established in
German case-law and subsequently adopted by the ECJ for the purpose of its decisions. It
should be noted that while the said institution guarantees full protection in Germany, in
EU law, the ECJ has reduced it to the status of limited exceptional application. See
Neidhardt (n 21) 138.
36
Ibid.
37
Kai-Dieter Classen, Gute Verwaltung im Recht der Europäischen Union. Eine Untersuchung
zur Herkunft, Entstehung und Bedeutung des Art 41 Ab 1 und 2 der Europäischen
Grundrechtecharta (Duncker&Humbolt 2008) 74–94.
38
Gunnar Folke Schuppert, Politische Kultur (Nomos 2008) 711.
39
Seckelmann (n 25) 425.

| 27
There is a concern over national administration being seen as detached from the
state
40
.
The above discussion clearly demonstrates that non-obligatory, elective, law
transfers are conditional on the recipient system of law being open and showing
a range of similar problems and issues which require legal solutions. Such
transfers are carried out on the sole initiative and at the option of the legislator.
Apparently, with regard to their goals and methods, comparative studies do not
concentrate so much on the rendition of the “transferred” normative act or the
existing case law and an established line of authority for their chief purpose is to
capture the common conditions and values lying behind the idea of legislative
changes. While scholarly comparative research aims at treating different legal
orders in an equal manner to capture their commonalities and differences,
comparative research carried out for the needs of the legislator of a specific
state shall deal with the transferred law in an instrumental manner with efforts
to be expended on its adaptation to the needs of the legal order of the recipient
state, which is the reason why the transfer results in a new and independent
legislative product that widely differs from the original model.
Meanwhile, the obligatory transfers of law completed in supranational
organisations on a massive scale strive for the goal of ensuring that the law of
the member states reaches a set degree of unification. In these circumstances,
comparative studies begin with the awareness that the imposed regulations are
not invented in a legislative vacuum but come from certain national legal orders.
Comparative research should then be conducted at multiple stages. First to deal
with the model legislation. Second, to accommodate the supranational
legislator’s alterations and improvements. Third, to examine, in the context of the
results obtained at stages one and two, how the legal mechanism operates in the
recipient law. The comparative research employs for this purpose a highly
complex and comprehensive method that involves the knowledge of the letter of
law, the applied line of authority and case-law as much as a broad cultural
context of the law that is the object of the studies.
__________
40
Armin von Bogdandy `Verwaltungsrecht im europäischen Rechtsraum
Perspektiven einer
Disziplin` in Armin von Bogdandy, Sabino Cassese, Peter M. Huber (eds), Handbuch Ius
Publicum Europaeum. Verwaltungsrecht in Europa: Wissenschaft, vol 4 (C.F. Müller 2011)
5.

| 28
4
THE NEEDS OF THE EXECUTIVE AND THE NEEDS OF
THE JUDICATURE
The purpose of the executive branch and the judicature is to enforce the
applicable law by putting it into operation and examining disputes which arise in
connection with the enforcement and operation of the law. As opposed to the
legislature, which is vested with law making power and not unreasonably
expected to utilise the best (also foreign) models, the executive or the judiciary
should not, as a point of principle, search for inspiration elsewhere in the process
of applying law. Used as a reference or a benchmark, legal solutions developed in
a different legal culture, hence alien to the circumstances and reality of one’s
domestic administration process, carry a dangerous potential to treat
comparative studies in an instrumental way and exploit them in passing
discretionary or probabilistic decisions
41
.
It is the principle of territoriality that guides public authorities in applying law.
This is also where the main difference lies as regards civil law. While civil law is
founded on the freedom of contract that manifests itself in the contracting
parties having freedom to decide on applicable law (private international law), in
administrative law, the essence of which is to exercise administrative power, a
reference to a foreign law would be most unusual. This situation arises from one
of the discriminants of administrative law, namely the fact that its enforcement
is completely related to the state territory, in line the principle of territorial
jurisdiction that governs the operation of public authorities and controls their
power by determining the scope of their local competence (rationae loci) and
subject matter competence (rationae materiae
)
42
. Physical persons (individuals)
may engage in their activities in a relatively flexible manner, enjoy the freedom
of movement in space
43
or even a relative freedom of choice of state
44
, or
__________
41
Martin Bullinger, `Zwecke und Methoden der Rechtsvergleichung im Zivilrecht und im
Verwaltungsrecht` in Ingeborg H. Schwenzer, Günter Hager (eds), Festschrift für Peter
Schlechtriem zum 70. Geburtstag (Mohr Siebeck 2003) 337.
42
The territorial principle is given full weight in the judgement of the Supreme
Administrative Court of 25 August 2011 (I OSK 1769/10) where the court emphasises that
the provisions of the Polish Road Traffic Act of 20 June 1997 (Prawo o ruchu drogowym,
Dz. U. No 98, item 602) with regard to taking one’s driving licence should also be applied
to a driving licence issued by the public administration in Germany.
43
Free movement of people is a fundamental right granted to all citizens of European Union
by virtue of the Treaties, see art 3t sec 2 of the Treaty on European Union (Dz. U. 2004, No
90, item 864/30), art 21 and Titles IV and V of the Treaty on the Functioning of the
European Union (OJ C 83, 30.03.2010, 47, consolidated version); Directive 2004/38/EC on
the right of citizens of the Union and their family members to move and reside freely
within the territory of the EU and EEA member states (OJ L 158, 30.4.2004).

| 29
ultimately, the freedom to subject themselves to law of their choice. As products
of the country’s legal order designed to serve the enforcement
of public law,
public administration-controlled entities have no such option. Therefore, public
administration bodies and courts of law will not apply foreign law unless
domestic law explicitly licenses them to do so
45
. Furthermore, administrative law
never requires that foreign law be applied
in toto
, but only to a limited extent.
There is a doctrinal consensus with regard to the problematic issue of how to
apply colliding norms in administrative law on the pattern of international
private law
46
.
The fact that the territorial principle remains in force does not mean that
comparative studies are to be completely abandoned. Indeed, it is about
linguistic interpretation being the central element in the process of applying law.
Therefore, where linguistic interpretation fails to provide a clear-cut result the
body responsible for the enforcement of administrative law will have to turn to
functional, systematic or another type of interpretation to disambiguate the
outcome of the linguistic interpretation
47
. In the context of the EU membership,
the EU interpretation of law must prevail as substantiated in many examples of
the ECJ case-law.
The European Court of Justice indicates that the idea does
not come down to implementing EU law but expands on the community-friendly
harmonisation of national law during the process of its application
48
. Mindful of
this purpose, comparative studies should concentrate on analysing the legal
__________
44
Art 34 sec 2 of the Constitution of the Republic of Poland of 2 April 1997 (Dz. U. 1997, No
78, item 483 as amended) provides that Polish citizenship is lost by renunciation. Art 46
of the Polish Citizenship Act (ustawa z dnia 2 kwietnia 2009 r. o obywatelstwie polskim,
Dz. U. 2012, item 161) provides that a Polish citizen who has renounced his or her
citizenship shall lose the same when he or she obtains the consent of the President of the
Republic of Poland to renunciation of Polish citizenship.
45
The majority of the cases are the so-called transnational administrative acts issued by an
administration body of one the member states and enforceable in the other members
states by virtue of EU law. On this subject see Barbara Kowalczyk, `Zasada terytorializmu
działania administracji a transgraniczność
spraw administracyjnych` in Renata
KusiakWinter (ed), Współpraca transgraniczna w administracji publicznej
(E-
Wydawnictwo. Prawnicza i Ekonomiczna
Biblioteka Cyfrowa. Wydział Prawa, Administracji
i Ekonomii Uniwersytetu Wrocławskiego 2015)
157-166.
46
Marek Zieliński, `O pojęciu międzynarodowego prawa administracyjnego` (2008) 9
Państwo i Prawo 28; Martin Kment, Grenzüberschreitendes Verwaltungshandeln.
Transnationale Elemente deutschen Verwaltungsrechts (Mohr Siebeck 2010).
47
A contrario it should be noted
to invoke a judgement of the Supreme Administrative
Court
that the EU-friendly interpretation must not be employed if it produces an
outcome that will contradict the effects of linguistic interpretation, which in turn may
trigger the unacceptable contra legem interpretation (NSA judgement of 5 October 2016
I FSK 1106/16).
48
Miąsik, Wróbel (n 22) 78.

| 30
orders of the member states with special attention to the convergence resulting
from the primacy of EU interpretation of law. Interestingly, reverse situations
may also occur. Comparative studies of the constitutional practices in the EU
member states provides examples to illustrate them. It concerns the fact that
constitutional courts of the EU member states widely invoke the Solange
doctrine
developed
by
the
German
Federal
Constitutional
Court
(Bundesverfassungsgericht) in justifying the precedence of the national
constitution over the EU law
49
.
The above indicates that comparative studies of application of law have different
functions
searching for ideas, providing solutions to specific problems,
equipping courts of law in a form of dialogue, helping optimise the normative
argument used in justifications of judicial decisions or normative acts, serving as
argumentation ornaments
50
. Nonetheless, it should be emphasised that
comparative research must not aspire to dominate or lead the law application
process, for the central argument rests on the goals and functions of applicable
law.
5
CONCLUSION
Comparative administrative studies pose a difficulty with regard to a clear
division between the academic research goals and the research goals set to cater
for the needs of the legislative process or the practical application of law (the
executive and the judicature). The interests invariably centre on a deep analysis
of two independent legal orders allowing for commonalities and differences,
interdependence, determinants and cause-and-effect relationships. Comparative
studies are on every level of research premised to attain cognitive goals, explore
new ideas, search for development impulses or new problem-solving methods,
build bridges and communication, attain the goals of reflection, judgement and
learning from others. They also facilitate the quest for methods to systematise
both new phenomena and the existing ones.
The nature and scope of comparative studies is traditionally determined by the
unique character of administrative law with its high rate of insular elements
__________
49
The Solange doctrine has won approval of the Constitutional Court in Poland, see
Judgement of 11 May 2005, K 18/04, OTK-A 2005, No. 5, item 49. On this subject see
Bogusław Banaszak, Limitation of Sovereignty by the European
Integration
The Polish
Approach in Rainer Arnold (ed), Limitations of National Sovereignty through European
Integration (Springer 2016) 99-108.
50
Miąsik, Wróbel (n 22) 10.

| 31
accounting for the characteristics of different states. Comparative studies are
also flexible (variable) and fragmentised by nature. These two qualities appear to
remain valid but the insular characteristics have been largely reduced as a result
of loosening the ties of the administration with the state. This consequently
influences comparative studies as we may draw a clear dividing line between the
research on independent legal orders in the phase of no connections among the
states and the phase of a high degree of interdependence and interaction among
the legal orders in the membership frame of supranational organisations such as
European Union. With European law in place reducing top-down the insular
elements of administrative law, comparative studies should focus on the cultural
and axiological context of pliancy or resistance to any further efforts stimulating
convergence.
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| 34
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| 36

image
| 37
A goal, a purpose and a foundation
these three categories
define the scope of any scientific or scholarly research. Hence,
the field of investigation.
A need or necessity compelling a scholar to undertake a study
evolves from certain facts, certain objective states of reality
which are to be assessed and evaluated. In the case of Polish
and German scholarship the main underlying fact is the
neighbourship of the two countries with any and all social
consequences which may stem from this state of things and
exert an impact on the operating choices made by the bodies of
public administration on both sides of the border.
The academic studies both in administrative law and
administration conducted in Poland or Germany do not see
differences as regards the role of the public administration
bodies under the rule of the democratic state of law. The bodies
of public administration in this type of polity are treated as
elements of the law enforcement power. Therefore, in Poland or
Germany, their competences include acting in their capacity of
public task providers, which in practice means that they cater
for the needs of individuals and communities
1
. Where public
tasks are carried out in two neighbouring states with an
intense
interaction
and
exchange
between
the
two
communities, a common procedural policy let alone a set of
shared rules with a significant legal impact must be developed.
__________
1
Definition of public responsibility: Jan Boć,
‘Prawo administracyjne’
[Administrative law] (Kolonia Limited 2010) 15.
THE AREA AND ASPECTS OF POLISH
AND GERMAN STUDIES ON PUBLIC
ADMINISTRATION
MAGDALENA
TABERNACKA
PhD in Law with a
post-doctorate
degree in Law,
Assistant Professor
at the Institute of
Administrative
Sciences, Faculty
of Law,
Administration
and Economics,
University of
Wrocław;
magdalena.tabernacka
@uwr.edu.pl
DOI:
10.1515/wrlae-
2015-0047
First publication:
Wroclaw Review
of Law, Admini-
stration and Eco-
nomics (WRLAE,
Vol. 7, No.1(2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter Open
https://www.degru
yter.com

| 38
Business or commerce are not the exclusive spheres necessitating such steps.
There is the entire social area where public administration entities are
entrusted with a range of duties such as family relationships, children born to
binational parents or single nationality foreign families who have settled in
the neighbouring country. One inevitably deals with all kinds of policies which
can be denoted as administrative policy understood, according to Jan
Jeżewski, as the policy in line with which the administration engages in the
different areas of its competence to execute statutory public tasks, set goals,
establish priorities, plan for executive measures and implementation methods
and predict outcomes, all of which is termed by the author as: administration
policy
2
. These policies call for a set of common rules and shared coordination,
which appears particularly important for environmental protection in the
broad sense of the phenomena and the implementation of different EU
policies. A common operating platform determines a need for common
research efforts made “together” or through parallel programmes launched on
both sides of the border with shared goals to tackle the same range of
problems from the perspectives of each state.
A multicultural perspective is the main factor to be considered in determining
the lines of the Polish and German research on the operating conditions and
methods of public administration. It pertains to the impact exerted on the
administration by the society seen as its environment and to the
administration itself, or to be precise, its organisation culture followed by its
bodies and units that conditions the actions and conduct of individuals who
are employed there.
In every state or its sub-structure, public bodies operate according to a set
pattern known as a culture of the public administration system. It evolves as a
consequence of the interacting historical, political and sociological processes
and at the same time is naturally a product of the law. Cultural differences do
not only lie in the arrangement of organisational structures or the distribution
of power but also in a degree of formality maintained in the relationships
between civil servants and local authority officers, on the one hand, and public
administration staff, on the other hand or the type and form of liaisons,
communication protocols or etiquette when it comes to showing interpersonal
__________
2
Jan Jeżewski,
‘Polityka administracyjna. Zagadnienia podstawowe’ [Politics of
Administration. The basics problems] in Adam Baś, Jan Boć, Jan Jeżewski (eds), Nauka
Administracji [Science of Administration] (Kolonia Limited 2013) 314.

| 39
respect and courtesy
3
. It is worth noting that operating within one legal and
administrative culture inevitably leads to ethnocentrism. As a driver of social
processes, law influences the mentality of its individual subjects just like the
method of exercising state power influences their behaviours and perceptions
of their individual places in the society
4
. Therefore Polish and German studies
in public administration should also account for any operational and
organisational ethnocentrism of public administration. This means a scholarly
duty to investigate the historically conditioned social sphere underlying
certain phenomena though not necessarily tackling the “big issues” relating to
the historical past of the two countries or the interests of the state as the
community. Social culture affects different aspects of the operation of
individual administration systems
5
. It is important to bear this fact in mind
while analysing certain universal mechanisms.
A multicultural perspective in public administration research does not imply
that studies should focus on the homogenisation of administrative and legal
solutions. This perspective is necessary to understand the purpose, motives and
special modes of operation followed by the administrative bodies on both sides
of the border. Only with this knowledge may one embark on designing
theoretical models for further practical application in mutual contacts.
Therefore, it is imperative that scholars allow for flexible ethnocentrism in the
comparative approach to administration.
In their research on flexible
ethnocentrism David Matsumoto and Linda Juang reached the conclusion that
what is required to develop a flexibility in contact with other people and
maintain one’s ethnocentrism is one’s awareness of one’s own cultural filters
__________
3
Magdalena Tabernacka, Negocjacje i mediacje w sferze publicznej [Negotiations and
mediations in public sphere] (Wolters Kluwer 2009) 153-154.
4
Magdalena Tabernacka, ‘Etnocentryzm w obszarze działania władz publicznych’
[Ethnocentrism in the area of public authorities activity] in Artur Preisner (ed), Czy
istnieje uniwersalny standard praw człowieka? Kulturowe i cywilizacyjne
uwarunkowania statusu jednostki [Is there a universal standard of human rights?
Cultural and civilizational conditioning of the status of an individual] (2013) 3 Zeszyty
Luksemburskie 281.
5
For example, the education system in Germany and Poland has been and is being
shaped in specific social, demographic and economic conditions. Geographical
conditons are also not without significance. This combination of factors influences
such specific issues as, e.g., school holidays, whose temporal distribution is
substantially different in the two countries. There is no autumn break in Poland, but it
"naturally" emerged in Germany or Italy because of the need for children to be involved
in field labor at that time. In Poland such practices were no longer in place after the
partitions and significant transformations of the state. Institutions, procedures and
ways of acting needed unification and the entire state was "re-established" without
preserving local customs and practices that were different in different parts of the
country.

| 40
and one’s understanding the fact that members of other
cultures have
different cultural filters with each culture holding a strong belief that its
version of reality is the true and correct one. The authors also emphasise that
flexible ethnocentrism does not mean one’s acceptance of a newly explored
perspective. It means understanding the new
6
.
Evaluation seems unavoidable in multicultural studies. And, bearing in mind a
complex history and practicalities of mutual interdependence, it is essential
for Polish and German relationships. Multicultural studies are also profoundly
influenced by the phenomenon known as attributive asymmetry, which equally
affects the research on public administration in Germany and Poland. Paweł
Boski notes that the essence of scholarly thinking (reasoning) is explaining and
predicting observed (or discovered) phenomena. And this is the background
against which he analyses the subjective assessment of success and failure. In
accordance with the effect of attributive asymmetry abilities and effort are
the two main causative categories explaining
one’s success, but their
importance declines if one evaluates one’s failure. If one’s failure follows
someone else's success it will not be attributed to these features to the same
rather high degree. Interestingly, a third party’s success following
our own
triumph is explained by lack of ability and effort on the part of such people. It
appears that one’s success may become set off by an interpretation of a third
party’s failure in way that is favourable to I whilst one’s failure can be
interpreted to reduce the success of other people
7
.
The research on the functioning of the administration in Poland and Germany
and its effects has to account for these important interdependencies. The
reason being, that the scope of studies on the two systems is defined by the
common goals of the single Europe and the pragmatic communality and
interdependence of the neighbourship.
Interdependence and a common goal fall into the category of the conditions
of the effective contact so called by Aronson, Wilson and Akert. They further
assign equal status, informal interpersonal contacts, multiple contacts with
__________
6
David Matsumoto, Linda Juang, Psychologia międzykulturowa [Culture and Psychology:
People Around the World] (Gdańskie Wydawnictwo Psychologiczne 2007) 90-91.
7
Paweł Boski, Kulturowe ramy zachowań
społecznych. Podręcznik psychologii
międzykulturowej [Cultural framework of social behavior. Handbook of Intercultural
Psychology] (Wydawnictwo Naukowe PWN, Academica Wydawnictwo SWPS 2009)
296.

| 41
members of an alien group and social norms of equality to this category
8
. It is
worthwhile emphasising certain specific determinants which influence the
relationship between the states and their administrations and the inhabitants
and citizens of Poland and Germany. The research should, on the one hand,
tackle all measurable facts which, for example, can be expressed in economic
and quantifiable categories and on the other, it should give account of
subjective social conditions, including the social perception of certain
phenomena. Administration is an activity of the people employed by the
state’s structures for the benefit of the people who create the state. This is
the
context which makes Marion von Dönhoff’s words sound very relevant and
adequate when she writes that the course of history is determined by how
people subjectively imagine facts rather than objective facts themselves.
9
There are certain phenomena in the life of the society and the functioning of
institutions which meet the criteria of such determinants in particular for the
functioning of the administration in the two countries. Therefore they should
become a subject of the currently conducted research and future updates.
They should also be included in the background studies for the research on
certain detailed topics which I will list in the subsequent sections of this
paper.
One of specific phenomena which is described in literature and calls for an in-
depth study is the so called asymmetry between the economic system, the
social systems and the administration systems of the two states. A
multifaceted analysis of this phenomenon has been completed by Kazimierz
Wóycicki and Waldemar Czachór. According to these authors the actual
proportions are not as clear as is generally believed in such areas as the level
of education seen as the country’s potential and the economic growth,
allowing for the obvious fact that Germany is a much wealthier country. The
authors believe that the notion of asymmetry should not be ignored.
Nonetheless it should not be overemphasised. As one invokes and allows for
asymmetry in one’s work one should measure real proportions rather than
apply stereotypes
10
. Asymmetry shares much in common with the ethnocentric
approach to the Polish and German problems. Importantly, it may determine
__________
8
Elliot Aronson, Timothy D. Wilson, Robin M. Akert, Psychologia społeczna [Social
Psychology] (Zysk i S-ka 2006) 380.
9
Marion von Dönhoff, ‘Europejski dom’
[European Home] in Alice Schwarzer, Marion
Dönhoff. Życie pod prąd (Wydawnictwo książkowe Twój Styl 1999) 158.
10
Kazimierz Wóycicki, Waldemar Czachór, Jak rozmawiać z Niemcami? O trudnościach
dialogu polsko-niemieckiego i jego europejskim wyzwaniu [How to talk with German.
About Polish-German dialogue and its European Challenge] (Oficyna Wydawnicza Atut
2009) 31-38.

| 42
any assessment or evaluation of a situation by Polish scholars as much as
German ones. And there is a clear connection with the stereotypes adopted on
both sides of the border. The ethnocentrism of the academia on both sides of
the border may only be overcome through the knowledge about the popular
and stereotypes which are cultivated by academia itself as opposed to the
reality.
Hence a capital meaning of all research and studies which involve the
confronting of positive as much as negative stereotypes with the objective
information and the identifying of the stereotype perceptions of Poles by
Germans and Germans by Poles and other issues which are of a key
importance for the cross-border
exchange. The “Barometr Polska Niemcy” –
“Poland-Germany
Barometer” is an example of this type of project
11
. The most
recent edition of the project provides a range of opinions which seem
influential for the perception of the Polish and German problems by scholarly
circles and are instrumental for the functioning of the administration in the
mutual contacts. The published report shows that more or less a half of the
population surveyed in both countries have neutral associations with the
neighbouring country. Furthermore, Poles see the situation in Germany in a
very positive way. They preserve an especially good view of the German
economy but good work organisation has suffered a setback (9 per cent
points) as much as a belief in the good development of the German economy
(8 per cent points). Meanwhile the proportion of those who can see corruption
and bureaucracy in Germany has grown (9 per cent points in either case),
which, according to the author of the report, may echo the immigration crisis,
the impact of the political elite’s opinions in Poland and the “disenchanting”
of Germany due to an improved situation in Poland. Nonetheless, Poles
appreciate the work organisation and a return of capital on an investment in
Germany. Germans reciprocate this with a positive view of the economic
growth in Poland (in fact this score has dropped by 4 per cent points since
2013) and appreciate Poland as a tourist destination. At the same time their
belief that Poland suffers from
corruption and the country’s bureaucracy
hinders business dealings. Germans have a negative view of the work
organisation and media freedom in Poland. Public opinion in Germany has
responded to the recent developments in Poland; opinion has become less
__________
11
These studies are the result of cooperation between the Institute of Public Affairs and
the Konrad Adenauer Foundation. The aim of this project is to systematically study and
present the opinions of Poles and Germans on Polish-German relations and the
challenges that these countries are facing.

| 43
favourable as regards: the freedom of the media in the criticism of the
national government (17 per cent points), respecting civil freedoms (12 per
cent points), respecting the rights of national and ethnic minorities (8 per cent
points) and the functioning of parliamentary democracy (13 per cent points).
What prevails when Poles evaluate Germany is a good opinion of the
democratic system of government, respecting civil liberties and respecting the
rights of national minorities. The appreciation and liking taken by Poles to
Germans has been much stronger than the reciprocal feelings on the German
part. In 2016, 53 % Poles declared that they liked Germans with 28 %
Germans reciprocating the same attitude. Poles were seen in a hostile way by
36% Germans with 14 % Poles declaring a negative view of Germans
12
. These
results are of key importance both for the functioning of administration and
for motivating scholars and their developing their opinions. Every human
activity should always allow for human nature, part of which is also emotions.
Todd D. Nelson refers to rather obvious fact that intergroup interactions
comprise an emotional component. Emotions lead to distortions and errors in
information processing and enhance the observer’s inclination to use
stereotypes during the processing of the information about the member of the
alien group in the group context
13
.
The above described asymmetry in the evaluations provided by Poles and
Germans and the mutual stereotyping are to some extent related with a
phenomenon present on the German side. This phenomenon has been
identified by Kazimierz Wóycicki and Waldemar Czachór and seems rather
instrumental for Polish and German liaisons and research. The two authors
have defined it as the deficit of respect or a certain under-appreciation of the
nature of Polish efforts and endeavours to reach the current point in its
political, economic and social development over the last few decades.
The
authors believe that respecting one’s partner means learning from the partner
and a willingness to engage into multifaceted collaboration, which does not
exclude an eventuality of conflict
14
. This is not merely about Polish and
German relations but the German West-bound orientation (except for the
__________
12
Agnieszka Łada in cooperation with Jacek Kucharczyk and Gabrielle Schöler, Barometr
Polska
Niemcy 2016. Polacy i Niemcy o sobie nawzajem 25 lat po podpisaniu traktatu
o dobrym sąsiedztwie
i przyjaznej współpracy [The Barometer
Poland-German. Poles
and Germans about each other 25 years after sign Treaty on the good Neighbourhood
and Friendly
Cooperation’].
See:
http://www.isp.org.pl/barometr2016/pl/Barometr_2016_pl.pdf
13
Todd D. Nelson, Psychologia uprzedzeń [Psychology of Prejudice] (Gdańskie
Wydawnictwo Psychologiczne 2003) 96.
14
Wóycicki, Czachór (n 10) 55.

| 44
special relationship with Russia), which was noted by Marion von Dönhoff
when she wrote of the old conviction that lingered between 1920s and 1960s
among German elites who believed that the culture existed in the West only.
The author wrote that the world as seen by Germans of the day was identical
with the West. This was the place where Germans were capable of engaging in
politics with panache, rouse their imagination to integrate and reconcile with
old enemies. But this world would end at the iron curtain
15
. The German policy
towards the East and Poland has radically changed since that era. A fading
trait of this orientation has remained until today. It is still discernible even in
the Barometer report and is, in particular, revealed in the survey of the
German appreciation and liking to the inhabitants of the different European
countries
16
.
The special Polish and German cultural context of the public administration
studies should allow for a broad spectrum of cultural interdependencies rather
than a single isolated problem reduced to a range of specific recent
stereotypes. All fields where culture affects human perception must be
considered. This is a treatment and observations offered by Sławomir J. Magala
in his a model of cross-culture competences. As part of the tasks for academia
the author has designed his model to comprise decoding and comparing
cognitive, relative and emotional codes
17
. These are certainly platforms where
culture affects social relationships and the functioning of individuals, which
also concerns public administration staff. Consequently, the Polish and
German studies on public administration cannot fail to ignore any factors
which determine the mutual liaisons from the communication angle or affect
the mutual perception and evaluation inclusive of the emotional sphere.
Kazimierz Wóycicki and Waldemar Czachór quote quite a compelling example
that skilfully illustrates the situation: it is a Polish custom that when you
strike up a conversation you begin with a routine banter about your own
weaknesses. Your partner in conversation is expected to respond with the
same self criticism. The authors note that when the other party is German,
who has just heard a Pole highlighting his or her vices, there is no chance for
self-ridicule from the German side. He or she will just comfort the Pole with a
perspective of fighting such imperfections of one’s character. The result is that
__________
15
Marion von Dönhoff, ‘Nie mamy polityki wschodniej’ [We don’t have the East Politics]
in Schwarzer (n 9) 190.
16
Łada (n
12) 24-25.
17
Sławomir J. Magala, Kompetencje
międzykulturowe [Cross-Cultural Competence]
(Wolters Kluwer 2011) 55.

| 45
Poles generally consider Germans bores with no sense of humour or arrogant
people
18
.
The research on Polish and German administration should also account for the
cross-border areas in both countries and tackle its special aspects: business,
societal issues, demographics and structural problems. Kazimierz Wóycicki and
Waldemar Czachór emphasise such topics as a need for business stimulation
and incentives of the cross-border territories with a stress on the economically
disadvantaged areas on the German side
19
, which gives the Polish partner a
slight edge over the German one. However, the ultimate result would be to
mutual benefit. The authors emphasise a range of problems relating to the
operation of administrative bodies including, but not limited to, slimming
down the bureaucracy required by German entrepreneurs launching their
businesses in Poland and the xenophobic bureaucracy that appears to be
ignorant of the special Polish and German coexistence in Germany; training
and education of local authorities and the “regional foreign policy”
20
.
The Barometer shows a rather positive trend both in terms of the bilateral
relations in the future and the so called climate for academic research, namely
the residents of the eastern Länder see the Polish and German relations in a
more positive light than those who live in western Länder. The people from the
eastern states will also more often advocate collaboration with Poland that
the inhabitants of the western states
21
. Frequent mutual contact helps to
break negative stereotypes. Therefore this positive attitude of the German
communities living in the East of Germany may bear fruit by creating a form
of sustainable Polish and German relations of scale. The need for
administration studies is not limited to the systems operated in eastern Länder
although the situation on the frontier is always crucial for all bilateral
contacts both at the local level and on the national scale in the context of the
overall public administration systems.
__________
18
Wóycicki, Czachór (n 10) 118.
19
This pertains in particular to a phenomenon referred to as the merger of the West
German tenency for overregulation and learned helplessness, which, in the context of
the postsocialist history of the region, is called "ostdeutsche Wirtschaft " on analogy to
a still lingering cliched term "polnische Wirtschaft".
20
Wóycicki, Czachór (n 10) 93-100.
21
Łada (n
12) 43, 54.

| 46
The current status of the studies on Polish and German administration is a
result of an impressive and highly commendable effort that has been made in
the field of social science for several decades now.
The work has involved a broad spectrum of historical developments, practical
liaisons, mutual interdependences, conditions and a multifaceted social
dialogue between Poland and Germany. Those were decades of commitment
with the aim of understanding the essence of the coexistence of Germans and
Poles in Europe and forming its axiological and legal foundations. The work on
the extended sphere of Polish and German relations and contributions from
such personalities as Stanisław Stomma, Władysław Bartoszewski, Marion von
Dönhoff brought forwards the status of the research on the functioning of
administration. The phase of searching for ways to start a dialogue is part of
the past. The studies are currently conducted in a common context.
The
shared research platform is the communality and community of goals. This is a
fact and it calls for description and findings to ensure the compatibility and
efficiency of the operation of pubic administrative structures and procedures
which facilitate the functioning of administration.
The studies on Polish and German administration should focus on those
organisational and functional aspects which are instrumental for the
necessary collaboration between the administration bodies and where one
party responds to the activities of the other. There are a number of areas of
competence allocated to public administration bodies, e.g. family matters
inclusive of an opportunity for mediations. This field of scholarly studies
should allow for child custody and an analysis of the bodies responsible for
family support in terms of bringing up and educating children and providing
for foster care. There is also a broad and important area of environmental
protection as a task for administration bodies on both sides of the border. The
research should offer them a proposal of a system and operating methods. The
collaboration between the police forces, fire departments and other services
are another example of research opportunities as all of them are legally bound
to respond to emergencies and disasters in a way that is significant for the
communities both in Poland and Germany.
As part of Polish and German academic efforts there should be room for
teaching programmes on the national systems of law and public
administration, the mechanisms of communication among the units in the
public administration structures, special aspects and etiquettes used for the
purpose of customer contacts or a wide-scale public administration targets or

| 47
service recipients. All research and studies should be conducted in the
“cross-
border” perspective and on the restricted scale with a single, Polish or German,
administration and legal system in focus. Nonetheless, such studies must not
ignore any important spheres between the two systems where one system may
react in response to the activities or operation of the other and result in
certain consequences also as part of the cross-border contacts.
All academic research should allow for the perspective of a rolling horizon.
There are no fixed and permanent relationships in the social sphere. And both
public administration and the scholars concerned with it should be prepared to
accept this device. Once established, all may become irrelevant if a situation
changes as a result of any earlier developments. This is a never ending story. In
the case of the Polish and German studies on public administration, the fixed
points are the facts of the neighbourhood and the resulting social contacts in
certain political, demographic and economic circumstances. What is important
is that in the situation of the inevitable cultural differences, the
administrations of the two countries have been taking steps in the sphere of
human needs which do not appear to be of a different nature. The only
difference lies in the methods of operation and cooperation dictated by the
different circumstances. This is the condition that triggers the continuity of
research in the common Polish and German perspective.
References
Aronson Elliot, Wilson Timothy D., Akert Robin M.,
Psychologia społeczna
[Social Psychology] (Zysk i S-ka 2006)
Boć
Jan., ‘Prawo administracyjne’ [Administrative law] (Kolonia Limited 2010)
Boski Paweł, Kulturowe ramy zachowa
ń
społecznych. Podr
ę
cznik psychologii
mi
ę
dzykulturowej [Cultural framework of social behavior. Handbook of
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PWN,
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Dönhoff Marion von, ‘Europejski dom’ [European Home] in Schwarzer Alice,
Marion Dönhoff.
Ż
ycie pod pr
ą
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Dönhoff Marion von, ‘Nie mamy polityki wschodniej’ [We don’t have the East
Politics] in Schwarzer Alice, Marion Dönhoff.
Ż
ycie pod pr
ą
d (Wydawnictwo
książkowe Twój Styl 1999)

| 48
Jeżewski
Jan, ‘Polityka administracyjna. Zagadnienia podstawowe’ [Politics
of
Administration. The basics problems] in
Błaś
Adam, Boć Jan, Jeżewski Jan
(eds), Nauka Administracji [Science of Administration] (Kolonia Limited 2013)
Łada Agnieszka, in cooperation with Jacek Kucharczyk and Gabrielle Schöler,
Barometr Polska
Niemcy 2016. Polacy i Niemcy o sobie nawzajem 25 lat po
podpisaniu traktatu o dobrym sąsiedztwie i przyjaznej współpracy [The
Barometer Poland-German. Poles and Germans about each other 25 years
after sign Treaty on the good Neighbourhood and Friendly Cooperation’].
See:
http://www.isp.org.pl/barometr2016/pl/Barometr_2016_pl.pdf
Matsumoto David, Juang Linda, Psychologia mi
ę
dzykulturowa [Culture and
Psychology:
People
Around
the
World]
(Gdańskie
Wydawnictwo
Psychologiczne 2007)
Nelson Todd D., Psychologia uprzedze
ń
[Psychology of Prejudice] (Gdańskie
Wydawnictwo Psychologiczne 2003)
Tabernacka Magdalena, ‘Etnocentryzm w obszarze
działania władz
publicznych’ [Ethnocentrism in the area of public authorities activity. ] in
Preisner Artur (ed), Czy istnieje uniwersalny standard praw człowieka?
Kulturowe i cywilizacyjne uwarunkowania statusu jednostki [Is there a
universal standard of human rights? Cultural and civilizational conditioning of
the status of an individual] (2013) 3 Zeszyty Luksemburskie
Tabernacka Magdalena, Negocjacje i mediacje w sferze publicznej
[Negotiations and mediations in public sphere] (Wolters Kluwer 2009)
Magala
Sławomir
J.,
Kompetencje
mi
ę
dzykulturowe
[Cross-Cultural
Competence] (Wolters Kluwer 2011) 55
Wóycicki Kazimierz, Czachór Waldemar., Jak rozmawia
ć
z Niemcami? O
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ś
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to talk with German. About Polish-German dialogue and its European
Challenge] (Oficyna Wydawnicza Atut 2009)

image
| 49
1
INTRODUCTION
The Republic of Poland is an example of a unitary decentralized state
with a characteristic inner unity and well-developed structures of
territorial self-government
1
. The unitary system adopted by the country
is a consequence of the homogenous character of Polish society in
terms of nationality, culture and religion
2
. Public governance in Poland
operates on the basic principle of decentralization. This is literally
expressed in art 15 of the Constitution of the Republic of Poland of
April 2, 1997 which claims that The territorial system of the Republic
of Poland shall ensure the decentralization of public power, while art
16 of the Constitution affirms that Local government shall participate
in the exercise of public power. The substantial part of public duties
which local government is empowered to discharge by statute shall be
done in its own name and under its own responsibility
3
. The most
significant legal act regulating the institutional and legal situation of
the commune in Poland is the Act of March 8, 1990 on commune
territorial self-government
4
.
__________
1
Paweł Machalski, Europa
samorządna. Samorząd terytorialny w
wybranych państwach Unii Europejskiej (Wydawnictwo Adam
Marszałek 2015) 38.
2
Piotr Winczorek, Komentarz do Konstytucji Rzeczypospolitej Polskiej
z dnia 2 kwietnia 1997 r. (Liber 2000) 15.
3
The Constitution of the Republic of Poland of 2 April 1997 Dziennik
Ustaw
Official Journal of Laws of the Republic of Poland
(hereinafter: Dz. U.) 1997 No 78, item 483, <
http://www.sejm.gov.pl
/prawo/konst/angielski/konse.htm > accessed 15 December 2017.
4
Dz. U. 2016, No 446, item 1579.
SELECTED ISSUES CONCERNING
PUBLIC TASKS OF THE COMMUNES
IN POLAND AND GERMANY
BARBARA ZYZDA
PhD candidate in
Law, University of
Wrocław, Faculty
of Law, Admini-
stration and Eco-
nomics;
barbara.zyzda
@uwr.edu.pl
DOI:
10.1515/wrlae-
2015-0048
First publication:
Wroclaw Review
of Law, Admini-
stration and Eco-
nomics (WRLAE,
Vol. 7, No.1(2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter Open
https://www.degru
yter.com

| 50
The Federal Republic of Germany is a federal political order. The country
comprises member units known as federal states or Länder (16 federal states
including 3 cities are awarded the status of Land: Brema (with Bremerhaven)
Hamburg and Berlin) which individually enjoy a high degree of autonomy
5
.
Germany has a four-tier territorial structure
the federation, Länder, i.e. federal
states, counties and local administration units
communes and municipalities,
while the territorial self-government operates on two tiers
communes and
municipalities and counties (except for Bavaria where an additional territorial
unit (Bezirk) is included)
6
. It should be noted that there are a few exceptions
where the administrative structure in the federal states is a two tiers, e.g. Berlin
is subdivided into districts and neighbourhoods (Ortsteile).
According to The Basic Law of the Federal Republic of Germany, the Länder shall
have the right to legislate insofar as this Basic Law does not confer legislative
power on the Federation. The division of authority between the federal states
and the Länder shall be governed by the provisions of this Basic Law concerning
exclusive and concurrent legislative powers
7
. In the process of developing the
structure of territorial self-government each Land individually followed the
organisational scheme of its choice. The systems are anchored in four historical
models: the south German system of councils, the system of mayors, the system
of magistrates and the north German system of local councils
8
.
Despite the fact that the self-government structures in Poland and Germany
significantly differ, the commune, as a unit delivering public tasks on a large
scale, plays an equally essential role in both countries.
2
THE LEGAL AND INSTITUTIONAL POSITION OF THE
COMMUNE IN POLAND AND GERMANY
It should be noted that, as an element of territorial self-government, the
commune in Poland does not belong to the structure of national government
9
.
However, the commune and the state must not be juxtaposed. In contrast, in
Germany the communes belong to the federal states level. The source of the
__________
5
Machalski (n 1) 39.
6
ibid 90.
7
Rafał Stasikowski, Gwarancje
samorządności gminnej w systemie prawnym Republiki
Federalnej Niemiec i Rzeczypospolitej Polskiej (Oficyna Wydawnicza Branta 2005) 22.
8
ibid 26.
9
Zygmunt Niewiadomski, ‘Kierunki rozwoju samorządu terytorialnego’ 1991
(1-2)
Samorząd Terytorialny 83.

| 51
power of the territorial self-government and its legitimacy finds its expression in
the will of the state and it is the democratic state that, by law, defines the wide
scope of the autonomy and independence claimed by the territorial self-
government
10
.
This autonomy of Polish and German communes in particular manifests itself in
the status of a legal person which enables them to enter into legal relationships
with public authorities, hold and manage their own assets, participate in
economic turnover and incur liabilities
11
. The fundamental pillars on which this
autonomy rests are the commune’s power to make local laws, its organisational
and personal competencies and a financial and taxation control.
The
word “commune” would originally refer to a community of a national
character. Its existence was based on the natural law of communities to decide
about their own affairs. During the interwar period, such an approach was
contested and certain authoritarian institutional changes were introduced which
led to the abolishing of the separation of powers in the state
12
. In Poland, the
commune, as a unit of territorial selfgovernment, was reinstated in 1990. The
breakthrough in the process of shaping this administrative unit in Poland took
place on January 1, 1999 on enacting the Commune Self-Government Act of July
24, 1998, which introduced the fundamental three-level territorial division of the
state
13
. Accordingly, a new system of three-tier territory division into gmina
(commune), powiat (county) and województwo (voivodship) was adopted.
The term of commune was defined in the aforementioned act on territorial self-
government, where the legislator characterized the commune as a corporate
body personally formed by a community of residents. W. Kisiel also emphasizes
the origin of commune, its democratic internal organization and its purpose
which is to constitute an essential part of the public administration at the local
level and exercise its competences within this framework
14
.
__________
10
Renata Kusiak-Winter,
Współpraca transgraniczna gmin Polski i Niemiec. Studium
administracyjnoprawne (Prawnicza i Ekonomiczna Biblioteka Cyfrowa 2011) 99.
11
Zbigniew Leoński, Samorząd terytorialny w RP (C.H. Beck 2010) 8.
12
Jan Boć, Prawo administracyjne (Kolonia Limited 2010) 184.
13
Dz. U. 1998, No 96, item 603.
14
Wiesław Kisiel, ‘Wstęp’ in Paweł Chmielnicki (ed), ‘Ustawa
o samorządzie gminnym.
Komentarz’ (LexisNexis 2010) 22.

| 52
The Constitution of the Republic of Poland states that the commune is the basic
unit of local government. The legislator makes a presupposition with regard to
the competences of this unit by saying that The commune shall perform all tasks
of local government not reserved to other units of local government
15
.
In Poland, the commune is endowed with a legal personality, which means that it
has not only a public and legal subjectivity but also that it is warranted the
autonomy of operation. There are two types of communes
rural and urban. The
distinction has a formal character and relates to the names of commune bodies
commune council and city council
16
.
Article 169 of the Constitution of the Republic of Poland provides for the
traditional division of the bodies of territorial self-government into statutory and
executive. The duality of the commune bodies is also reflected by the Commune
Act where the council is identified as the decision making body (art 18 sec 1),
while the voyt (mayor or president) acts as the executive body (art 26 sec 1)
17
.
The commune council is appointed in universal, equal, direct and secret elections.
The council acts for the commune as its statutory and controlling body. It
decides on its internal organization by passing the statute of the commune. The
commune council sits in sessions and while in session it may set up committees.
Like German committees, they have a subsidiary rather than mandatory role
18
.
The single-member executive body of the commune
voyt, mayor or president
is elected on the basis of universal, free, equal, direct and secret suffrage
19
. This
function is responsible for the enforcement of the council’s resolutions and its
external representation. A voyt, mayor or president performs his or her duties
assisted and supported by the commune office.
It is worth remarking that the subject of each territorial selfgovernment unit is
the community that lives in a commune, which means that the inhabitants are
__________
15
Bogdan Dolnicki, Samorząd terytorialny (Wolters Kluwer SA 2016) 77.
16
ibid 94.
17
Renata Kusiak, ‘Pozycja gminy w strukturze państwa polskiego i niemieckiego’, Acta
Universitatis Wratislaviensis No 1900, Prawo CCLIII, 76.
18
Dolnicki (n 15) 96.
19
Hubert Izdebski, Samorząd
terytorialny. Podstawy ustroju i
działalności (LexisNexis 2014)
252.

| 53
not only Polish citizens but also foreigners granted permanent residence in the
area of that commune
20
.
A German commune is a territorial corporation of citizens. Its autonomy is based
on administrative and territorial autonomy, organizational competence, local
legislative power, autonomy in the scope of the relationships with the territorial
self-government, financial autonomy and autonomy in the scope of economic
development and urban planning
21
. It must be emphasized that each of the
aforementioned expressions of autonomy must conform to domestic law.
In Germany, communes are part of the Land administration and according to the
scope of their competence they act autonomously in dealing with, and assuming
responsibility for, all matters regarding local communities
22
. This rule is made
explicit in the Constitution of the Federal Republic of Germany of May 23, 1949,
where art 28 sec 2 stipulates that Municipalities must be guaranteed the right to
regulate all local affairs on their own responsibility, within the limits prescribed
by the laws. Within the limits of their functions designated by a law, associations
of municipalities shall also have the right of self-government according to the
laws. The guarantee of self-government shall extend to the bases of financial
autonomy
23
.
Endowed with legal personality, the commune in Germany constitutes the self-
government of public administration. Nonetheless, it is subordinate legislation
(statutory instruments/orders, rules, regulations) that determines the system and
the tasks of the commune in detail. It is important to bear in mind that only a
few problems have found harmonised solutions across the whole German
federation. The most important one is the commune’s capacity to elect its
representative collective body (with names differing from Land to Land i.a.
commune council, city council, commune representative) to exercise the
__________
20
Jerzy Korczak, Piotr Lisowski, Adam Ostapski, Ustrój samorządu
terytorialnego. Materiały
dydaktyczne (Prawnicza i Ekonomiczna Biblioteka Cyfrowa 2015) 55.
21
Jerzy Korczak, ‘W Niemczech’ in Jan
Jeżewski (ed), Samorząd terytorialny i administracja
w wybranych krajach. Gmina w państwach Europy Zachodniej (Wydawnictwo
Uniwersytetu Wrocławskiego 1999) 273.
22
Marcin Miemiec, Gmina w systemie administracji publicznej Republiki Federalnej Niemiec
(Kolonia Limited 2007) 40.
23
Basic Law for the Federal Republic of Germany of 23 May 1949, Bundesgesetzblatt (BGB1)
I, 1949.
https://www.bundestag.de/blob/284870/ce0d03414872b427e57fccb703634dcd/basic_law
-data.pdf accessed 21 December 2016.

| 54
legislative power within its jurisdiction to the extent that such powers are not
reserved for other bodies.
The powers and responsibilities of the commune council include passing local
laws, carrying out commune territorial transformations, determining rates of
public levies or tariffs and controls
24
. Due to a collective and session-based mode
of operation followed by the commune, these rights are largely implemented by
the council’s
committees which play both advisory and decision-making roles
25
.
The bodies of the German commune are elected by universal, free, equal and
secret suffrage
26
. A commune resident is, in accordance to the German
legislation, anyone who has his or her place of residence there. The passive
voting right and the active voting right are enjoyed only by those residents of
communes who hold either German citizenship or the citizenship of another EU
member state and have lived as residents of the commune for at least 3 months
(or, in some Länder - 6 months)
27
.
The executive body of the German commune takes either the monocratic form of
the mayor (Bürgermeister) or the lord mayor (Oberbürgermeister), as the case
may be, or the collective form of the commune management board (an executive
committee) known as the magistrate
28
. The actual form depends on the locally
binding model of selfgovernment, i.e. North German, South German, the
magistrate or the mayor
29
. According to R. Kusiak-Winter, the above mentioned
division is currently of no significance due to the reforms conducted in the 1990s
when a wide-ranging harmonization of the legal solutions, in particular, with
regard to the federal states, took place. As a result of the reform, the differences
have narrowed down to the length of the mayor's term in office, the removal or
dismissal of the mayor by the council and the division of competencies between
the council and the mayor
30
.
__________
24
Miemiec (n 22) 53.
25
Korczak (n 21) 276.
26
Lidia Zacharko (ed), Model ustroju samorządu gminnego w wybranych krajach
europejskich (Difin 2013) 94.
27
Joanna Jagoda,
‘Organizacja samorządu terytorialnego w Niemczech’ in Marta
Woźniak,
Joanna Ryszka (eds), ‘Prawno administracyjne regulacje
samorządności i zarządzania
państwem
w Unii Europejskiej’ (Wydawnictwo Uniwersytetu Opolskiego 2006) 210.
28
Zacharko (n 26) 93.
29
Miemiec (n 22) 53, see: Korczak (n 21) 282.
30
Kusiak-Winter (n 10) 104.

| 55
Both in Poland and Germany, the commune plays its fundamental roles
being
close to the citizen, it connects and integrates him with the country, provides for
autonomy, guarantees safety and the sense of belonging to the community,
ensures a better understanding and appreciation of the needs and problems of
local residents. Furthermore, it is best positioned to utilise its potential of
adequate and quick response
31
. What influences/shapes/defines the key role of
the commune as a subject/entity charged with public tasks is the scope of these
public tasks.
3
CARRYING OUT PUBLIC TASKS THE COMMUNES IN
POLAND AND GERMANY
Fulfilling the public tasks by the units of territorial self-governments both in
Poland and Germany is connected with the principle of subsidiarity, in
accordance to which decisions should be taken at the level that is closest to the
residents of a territorial community if such a decision is expected to be most
successful at this level
32
.
The German model of public tasks performed by the community is not uniform. It
differs from Land to Land between a monistic concept and a dualistic one. In
addition to a range of tasks fulfilled in their selfgovernment capacity, the
communes carry out either delegated (mandated) or obligatory tasks. The former
if they operate under the dualistic model and the latter if they follow the
monistic concept, in which case conformity with the guidelines is required
33
. The
delegated (mandated) tasks are transferred to the communes by the state on the
basis of national legislation and executed subject to the guidelines. In
accordance with the monistic model, the guidelines follow from the laws which
provide for the transfer of the tasks. Such guidelines must however be general.
They should not step into the executive sphere in any exaggerated manner,
especially as regards personnel, devices or means selected on their own
34
.
Irrespective of the above classification, the tasks are divided into voluntary and
obligatory. They are carried out by each commune autonomously on its own
__________
31
ibid 10.
32
Dolnicki (n 15) 355.
33
Miemiec (n 22) 79.
34
ibid 80.

| 56
responsibility
35
. As regards voluntary tasks, the commune uses the presumption
of competence and makes an autonomous decision of whether or not it wishes
to accept them and as to how it will perform them. The commune performs all
tasks explicitly delegated to it in accordance with the legislation. It may,
however, apply the presumption of competence to independently determine and
perform new public tasks
36
. There are, however, certain conditions attached as
new tasks are decided. They must fall within the category of local community
issues and they must not be reserved for the competences of other public
authorities. What is also important is that the commune must be able to secure
adequate means and measures to ensure their successful completion
37
. The
implementation of voluntary tasks is always regulated in the spirit of a local
legal act that is passed on the basis of the general authority granted by virtue of
the commune ordinance, but when a local legal act interferes in the sphere of
the principal constitutional rights of the recipients of such a task, special
authorization is required
38
.
The obligatory tasks of self-government performed by the commune on the basis
of the legislation include: welfare, primary education, youth services, road
construction and maintenance, water supply, sewage and wastewater treatment
and collection, establishing and maintaining cemeteries and firefighting and fire
protection
39
. As part of its voluntary tasks the commune may establish, operate
and maintain orphanages, nursing homes, hospitals, sports and leisure facilities,
libraries or public corporations. The commune is also commissioned to execute
certain tasks assigned to the state administration, which i.a. comprise civil first
response organizations, issuing passports, supervising health care, building
control, industrial inspection and registration of vital records
40
. As noted by J.
Korczak, in case of any obstacles preventing the fulfilment of a task by the
commune e.g. such as a financial predicament and/or staff shortages, the
common practice is to enter into cooperation with other communes and transfer
__________
35
Eugeniusz Ruśkowski,
Bogdan Dolnicki (eds), ‘Władza i finanse lokalne w Polsce i krajach
ościennych’, (Oficyna Wydawnicza Branta 2007) 56.
36
Ewa Olejniczak-Szałowska,
‘Zadania własne i zlecone samorządu terytorialnego’ (2000) 12
Samorząd Terytorialny 12-13.
37
Carlo Panara, Michael R. Varney (eds), Local Government in Europe: The 'Fourth. Level' in
the EU Multi-Layered system of governance (Routledge 2013) 89.
38
Stasikowski (n 7) 108.
39
Marek Stefaniuk, Jan Szreniawski, ‘Główne reformy administracyjne w Polsce w latach
1989-2009’
in Jerzy Supernat (ed)
Między tradycją
a
przyszłością w nauce prawa
administracyjnego. Księga jubileuszowa dedykowana profesorowi Janowi Bociowi
(Wydawnictwo Uniwersytetu Wrocławskiego 2009) 146.
40
Korczak (n 21) 287.

| 57
the performance of such a task onto the self-government supra municipal
institutions (e.g. vital records registration tasks)
41
.
The commune also engages in elective tasks and makes an independent decision
on taking up a particular task. As indicated by A. Błaś, such tasks are the most
complete expression of the commune’s autonomy, not to be confused with
arbitrariness. In resolving the question of whether to proceed or not with a
particular voluntary task, communes are required to test each case for
compliance with the constitutionally protected values and norms
42
. It is worth
paying attention to the issue of optional tasks
if the commune fails to fulfil an
optional task, it has to be accomplished by the county.
In the Constitution of the Republic of Poland, Polish legislators use the classic
division of tasks allocated to the territorial self-government into self-
government's own tasks and mandated tasks. In determining the scope of
commune tasks, the Commune Self-government Act provides for a general
treatment on the
presumption that the commune’s ownership of all public cases
of any local significance must not be reserved in favour of other entities
43
. The
purpose of the commune’s own tasks is to meet the collective needs of the
community. On the other hand, the commune fulfils some tasks which belong to
the state administration and are commissioned to the commune for execution.
Commissioned tasks must result from the justified needs of the state. Both own
and mandated tasks have their origin in the relevant piece of legislative
provision
44
. The commune's own tasks include meeting the community needs
concerning i.a. the issues of local road transport, the municipal water
distribution network and the sanitary drainage network, welfare, public
education, culture, healthcare, libraries, family support services, the commune
cemeteries, public order, pro-family politics, commune promotional activities,
cooperation with nongovernmental organizations, law and order. The commune’s
own tasks are divided into two categories: obligatory and voluntary
45
.
__________
41
ibid 288.
42
Adam Błaś ‘Zadania administracji publicznej’ in Adam
Błaś, Jan Boć, Jan Jeżewski (eds),
Administracja publiczna (Kolonia Limited 2004) 140.
43
Dolnicki (n 15) 78.
44
Michał Kulesza, Dawid Sześciło, ‘Local Government in Poland’ in
Angel-Manuel Moreno
(ed), Local government in the Member States of the European Union: a comparative legal
perspective (National Institute of Public Administration 2012) 490.
45
Marcin Miemiec ‘Działalność gospodarcza gmin w Republice Federalnej Niemiec’, in Adam
Błaś, Konrad Nowacki (eds) Współczesne europejskie problemy prawa administracyjnego i

| 58
All tasks commissioned to the commune are those which by principle belong to
the state administration and are transferred to be executed by territorial self-
governments
46
. This can be done either, by statutes where a law exists that
instructs the commune to accept a task, or by an agreement whereby the
commune’s body may, at its discretion, enter into an agreement with the state
administration. In all cases, however, there is a condition; namely the guarantee
given by the state administration that adequate funding will be available to
successfully complete the task
47
.
4
CONCLUSION
To conclude; the situation of the commune as the basic unit of territorial self-
government is similar both in Poland and Germany. It is clearly visible that Polish
legislators derived from German patterns while positioning of the commune in
the system. The similarity appears especially in the fact that the commune is in
both countries a council
a representative body directly elected by the citizens.
Both in
Poland and the majority of the federal states, the commune’s executive
body is a monocratic body appointed by the process of direct election
48
.
In both cases the territorial self-government is comprised of the community
inhabiting a particular area and organized as a territorial selfgovernment
association empowered by the state as a legal person in order to carry out its
activities
49
.
It
executes
certain
tasks
of the state by
deployment
(decentralization).
Both in Poland and Germany, communes fulfil two kinds of activities
own
(obligatory) and delegated. In Poland, the qualifying of the activity as own or
delegated is conducted on the basis of the analysis of every task in reference to
the material law. It is similar in Germany, where the ordered activities conducted
by the commune must result from the acts. The commune's obligatory tasks in
regard to Polish and German regulations are realized on their own behalf and as
the own responsibility of the commune; however their financing is completed
from the commune's budget. In both countries, the further division of own
__________
administracji publicznej. W 35. rocznicę utworzenia Instytutu Nauk Administracyjnych
Uniwersytetu Wrocławskiego (Wydawnictwo Uniwersytetu Wrocławskiego 2005) 294.
46
Kusiak-Winter (n 10) 118.
47
Dolnicki (n 15) 358.
48
Jagoda (n 27) 219.
49
Zygmunt Niewiadomski, Samorząd terytorialny w Europie Zachodniej. Podstawowe
założenia i modele (Fundacja Rozwoju Demokracji Lokalnej 1990) 11.

| 59
activities into obligatory and voluntary was applied, however in neither case was
the closed catalogue of commune own activities indicated, making the activities
dependant on the needs of the particular society. In spite of this the Polish
legislator, in article 7 of commune territorial self-government, indicates the
catalogue of commune's own activities, but it is not comprehensive. The German
legislator made the inclusion of the particular task into the group of local society
issues dependant on the specific conditions of every commune. The nature of
optional activities of communes is similar in both countries (it includes i.a. the
issues concerning theatres, museums, building sport facilities) and is dependent
on the financial condition of commune
50
.
In Poland, the delegated tasks are those public activities fulfilled by communes
imposed by law and resulting from the justified needs of the country. The similar
solution is applied by the German legislator. Both Polish and German communes
have the determined scope of independence in fulfilling the delegated activity
in both cases, the ordering party transfers the appropriate financial means for
the commune being necessary to realize the particular activity.
The main areas of public tasks of Polish and German communes include shaping
the structure, asset management, tax enforcement and collection, basic public
education, health care and welfare, local public transportation, cultural and
sports facilities, planning and urban planning. On the basis of aforementioned
statement, it is clearly visible that Polish and German communes, as units being
the closest from the territorial government for the society, fulfill the most
important public activities and despite some differences resulting from the
state's regulations, they have really much in common.
References
Błaś
Adam, ‘Zadania administracji publicznej’, in
Błaś Adam, Boć Jan, Jeżewski
Jan (eds) ‘Administracja publiczna’ (Kolonia Limited 2004)
Boć Jan, Prawo administracyjne (Kolonia Limited 2010)
Dolnicki Bogdan, Samorz
ą
d terytorialny (Wolters Kluwer SA 2016)
__________
50
Kusiak-Winter (n 10) 121-132.

| 60
Izdebski Hubert, Samorz
ą
d terytorialny. Podstawy ustroju i działalno
ś
ci
(LexisNexis 2014)
Jagoda Joanna, ‘Organizacja
samorządu terytorialnego
w Niemczech’ in
Woźniak
Marta, Ryszka Joanna (eds), ‘Prawnoadministracyjne regulacje
samorządności i
zarządzania państwem
w Unii Europejskiej’ (Wydawnictwo Uniwersytetu
Opolskiego 2006)
Jeżewski
Jan (ed),
‘Samorząd terytorialny i administracja w wybranych krajach.
Gmina w państwach
Europy Zachodniej’ (Wydawnictwo Uniwersytetu
Wrocławskiego 1999)
Kisiel Wiesław,
‘Wstęp’ in Chmielnicki Paweł (ed), ‘Ustawa o
samorządzie
gminnym. Komentarz’ (LexisNexis 2010)
Korczak Jerzy, Lisowski Piotr, Ostapski Adam, Ustrój samorz
ą
du terytorialnego.
Materiały dydaktyczne (Prawnicza i Ekonomiczna Biblioteka Cyfrowa 2015)
Kulesza Michał, Sześciło
Dawid, ‘Local Government in Poland’ in Moreno A. (eds),
‘Local government in the Member States of the European Union: a
comparative
legal perspective’ (National Institute of Public Administration 2012)
Kusiak Renata, ‘Pozycja gminy w strukturze państwa polskiego i niemieckiego’,
Acta Universitatis Wratislaviensis No 1900, Prawo CCLIII
Kusiak-Winter Renata,
Współpraca
transgraniczna gmin Polski i Niemiec.
Studium Administracyjnoprawne (Prawnicza i Ekonomiczna Biblioteka Cyfrowa
2011)
Leoński Zbigniew, Samorz
ą
d terytorialny w RP (C.H. Beck 2010)
Machalski Paweł, Europa samorz
ą
dna. Samorz
ą
d terytorialny w wybranych
pa
ń
stwach Unii Europejskiej (Wydawnictwo Adam Marszałek 2015)
Miemiec Marcin,
‘Działalność
gospodarcza gmin w Republice Federalnej Niemiec’
in Błaś
Adam, Nowacki Konrad (eds)
‘Współczesne europejskie problemy prawa
administracyjnego i administracji publicznej. W 35. rocznicę utworzenia
Instytutu Nauk Administracyjnych Uniwersytetu Wrocławskiego’
(Wydawnictwo
Uniwersytetu Wrocławskiego 2005)

| 61
Miemiec Marcin, Gmina w systemie administracji publicznej Republiki Federalnej
Niemiec (Kolonia Limited 2007)
Niewiadomski
Zygmunt, ‘Kierunki rozwoju samorządu terytorialnego’ 1991
(1-2)
Samorząd Terytorialny
Niewiadomski
Zygmunt,
Samorz
ą
d
terytorialny
w
Europie Zachodniej.
Podstawowe zało
ż
enia i modele (Fundacja Rozwoju Demokracji Lokalnej 1990)
Olejniczak-Szałowska
Ewa,
‘Zadania własne i zlecone samorządu
terytorialnego’,
2000 (12) Samorząd Terytorialny
Panara Carlo, Varney Michael R. (eds), ‘Local Government in Europe: The 'Fourth.
Level' in the EU Multi-Layered
system of governance’ (Routledge 2013)
Ruśkowski Eugeniusz, Dolnicki Bogdan (eds),
Władza i finanse lokalne w Polsce i
krajach o
ś
ciennych (Oficyna Wydawnicza Branta 2007)
Stasikowski Rafał, Gwarancje samorz
ą
dno
ś
ci gminnej w systemie prawnym
Republiki Federalnej Niemiec i Rzeczypospolitej Polskiej (Oficyna Wydawnicza
Branta 2005)
Stefaniuk Marek, Szreniawski Jan,
‘Główne reformy administracyjne w Polsce w
latach 1989-2009’
in
‘Między tradycją a przyszłością w nauce prawa
administracyjnego. Księga jubileuszowa dedykowana profesorowi Janowi
Bociowi’ (ed) Supernat
Jerzy (Wydawnictwo Uniwersytetu Wrocławskiego 2009)
Winczorek Piotr, Komentarz do Konstytucji Rzeczypospolitej Polskiej z dnia 2
kwietnia 1997 r. (Liber 2000)
Woźniak
Marta, Ryszka Jan (eds), ‘Prawno administracyjne regulacje
samorządności i zarządzania państwem
w Unii Europejskiej’ (Wydawnictwo
Uniwersytetu Opolskiego 2006)
Zacharko Lidia (ed), ‘Model ustroju
samorządu gminnego w wybranych krajach
europejskich’ (Difin 2013)

| 62

image
| 63
1
INTRODUCTION
This text is an elaborated transcript of a presentation given at
the symposium “Current research problems in Administrative
Studies in Germany and Poland”, held at the University of
Wrocław,
October
21
st
-22
nd
2016.
It
highlights
the
demographic challenges in the administrative sector for the
Freestate of Saxony, measures taken at Meissen University of
Applied Administrative Sciences, as well as possible strategies
of the Freestate of Saxony regarding the public sector to meet
the challenges of the coming decades
1
.
2
OUTLINE OF THE CHALLENGE
The Saxon universities play a prominent role in offering and
realising solutions for the demographic challenges the Freestate
of Saxony faces. Currently, there are 14 universities and
universities of applied sciences with different specialisations
(see fig. 1).
__________
1
Final report of the personnel-commission
(“Kommission zur
umfassenden
Evaluation
der
Aufgaben,
Personal-
und
Sachausstattung“), imposed by the Saxonian Government, 2016.
ADMINISTRATIVE SPECIALIST STAFF
IN SAXONY
TOPICAL CHALLENGES
AT THE EXAMPLE OF THE MEISSEN
UNIVERSITY OF APPLIED
ADMINISTRATIVE SCIENCES
FRANK NOLDEN
Professor, PhD in
Law, President of
Meissen University
of Applied
Administrative
Sciences, Centre
for Continuing
Education;
frank.nolden
@hsf.sachsen.de
DOI:
10.1515/wrlae-
2015-0049
First publication:
Wroclaw Review
of Law,
Administration
and Economics
(WRLAE, Vol. 7,
No. 1 (2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter
Openhttps://www.
degruyter.com

image
| 64
Source:
http://www.verwaltungsatlas.sachsen.de/img/img_verwaltungsatlas/Verwaltungsatl
as/hochschule.gif
Fig. 1
Location of universities in the Freestate of Saxony
Two universities of applied sciences are responsible for the education for the
public sector. One of them, situated close to Görlitz, exclusively trains students
for the Saxon police force
2
; the other, situated close to the Saxon capital
Dresden, in Meissen, qualifies students in the departments of financial and tax
administration, social administration and social security, administration of
justice, and general administration (state administration as well as communal
administration, i.e. for municipalities, cities and districts)
3
.
The graduates then enter the public sector at the so-called 1. entry level for the
public service category 2. The layering of the personnel in Saxony is smallest at
the level of the higher civil service (mostly jurists), and highest at the level of the
upper intermediate civil service (all graduates of Meissen University of Applied
Sciences) as well as at the level of the intermediate civil service (mostly after
vocational training). The demographic development in eastern Germany (the
former territory of the GDR) is especially regressive, in particular in the rural
areas. Currently, the bigger cities such as Dresden, as the state capital, as well as
__________
2
Hochschule der Polizei (FH)
Saxonian Police University.
3
Hochschule Meissen (FH) und Fortbildungszentrum des Freistaates Sachsen
University of
Applied Administrative Sciences Meissen.

image
| 65
Leipzig and Chemnitz, see a considerable increase of their population. The
development of the population and the age structure are illustrated in the fig. 2.
Source: Saxonian Statistical Office und Head Office of the personnelcommission (Personalkommission) 2016.
Fig. 2
Population prognosis (Population in the Free State of Saxony 1990 to
2030)
The statistical office of the Freestate of Saxony calculated a population forecast.
For the years 1990 till 2030, there is a considerable, even dramatic, population
decrease from 4.7 million inhabitants in 1990 to 3.5–3.9 million inhabitants in
2030. In addition, the share of the population aged 60 or over increases from
100.000 in 1990 to ca. 270.000 persons in 2030 and stays at this high level (see
fig. 3).
Source: Federal Statistical Office and ifo „Institut für Wirtschaftsforschung e.V." in Munich (branch Dresden).
Fig. 3
Increase of the Saxonian population 60+
0
5000
10000
15000
20000
25000
30000
35000
1950
1960
1970
1980
1990
2000
2010
2020
2030
2040
2050
2060

image
| 66
The age structure of civil servants in Saxony shows a share of 28% of employees
aged 60 or over; the share of employees aged 50 or over is 67% of all employees
(with an absolute number of employees of 84.362 on January 1
st
2015). This
data does not include the communal level, i.e.
municipalities, cities and districts, and their large number of employees.
3
CONSEQUENCES
This initial situation will lead to a loss of personnel in the regional government
and in the communities of about 50% in the years 2016 to 2030 as is illustrated
in the fig. 4.
Source: Head Office of the personnel-commission (Personalkommission) 2016.
Fig. 4
Age structure of civil servants in Saxony
The loss of personnel will obviously lead to a considerable loss of knowledge and
support for the (political) administrative sector in the Freestate of Saxony. This is
highly correlated with a loss of praxis-oriented and experienced instructors
which are indispensable to representing a very significant distinctive feature of
the dual education system in the higher education system. In addition, there is
the imminent fast ageing of the public administration: there is a tendency to
higher rates of sick leave among employees in conjunction with longer periods of
sickness due to an increased average age of the employees
4
. There is also an
__________
4
Epidemiologisches Gutachten im Auftrag des Bundesministeriums für Familie, Senioren,
Frauen und Jugend (BMFSFJ) - Präsentation bei der Fachtagung zum Thema
„Gesellschaftliche Teilhabe im Alter. Welche flexiblen Altersgrenzen brauchen wir in
(total: 84362, only Freestate)

image
| 67
increased utilisation of offers such as early partial retirement or part-time work
among younger civil servants. The generation 55+ that is leaving the labour
market is often not prepared for the challenges of changing working
environments and is not able to transmit knowledge in a digital form. In addition,
there may be so-called generation conflicts, especially in cases of process
optimisation and in the IT-sector. Older employees are often less willing to
accept innovations. In addition, missing personnel complicates the practical
education in universities. All universities, the University of Applied Administrative
Sciences in Meissen included, experience a tendency towards less adequate
applicants in quality and quantity for the course of studies. There is also a
noticeable competition with trade and industry which will lead to further
decreasing numbers of applicants. A specific challenge for the rural
administrations is the decreasing willingness of graduates from Meissen
University of Applied Administrative Sciences to work in rural areas and to
choose those areas as places of residence
5
. This intensifies the haemorrhaging of
the rural areas, as the fig. 5 shows.
Source:
www.demographie-portal.de
__________
Zukunft?“, am 10.12.2013 in Berlin
[http://www.iges.com/e2856/e4186/e8617/e8618/e8648/e8649/attr_objs8655/IGES_Gesel
lschaftliche_Teilhabe_imAlter_Dr.Schueler_ger.pdf].
5
Ländliche Lebensverhältnisse in Sachsen: Ergebnisse einer Repräsentativbefragung im
Freistaat Sachsen - Zentrale Ergebnisse
done by forsa (Gesellschaft für Sozialforschung
und statistische Analysen mbH Berlin), 2014
[https://publikationen.sachsen.de/bdb/artikel/21033/documents/28373].

image
| 68
Fig. 5
Change to the population size 2011 to 2015 in Saxony
The education at the University of Applied Administrative Sciences in Meissen
itself takes three years, therefore, a quick increase of the number of graduates
for the Freestate and the communal level is impossible. In addition, the
preparation time for choosing and winning students, i.e., for the application and
selection procedures (which in Meissen are similar to the French Concours), is
about one year. The long-term practice of understaffing led, among other
consequences, to a skewed personnel structure; i.e., too many older, and too few
younger, employees. There is also a real risk of a repetition of the situation of the
1990s with a quick staff recruitment, which in time led to bottlenecks for
promotions. Furthermore, quickly recruiting a large number of personnel at a late
time may lead to a violation of the principle of selecting the best candidates, as
had possibly happened in the 1990s. On the communal level, there are reports
that expert staff from smaller communes are recruited by larger communes,
because they can offer better options for development and promotion (see fig. 6).
Source: Federal Statistical Office and Statistical Offices of the Bundesländer
Fig. 6
Rural regions in the eastern part of Germany suffer the scourge of
emigration
The number of applicants is stagnating at a high level of about 1.700 applicants
for about 200 places at the University of Applied Administrative Sciences in
Meissen, i.e., about eight or nine applicants for every available place. The
numbers of new matriculations, which at the same time mean an employment
with an administrative unit in a dual system, are increasing only slightly

image
| 69
4
DEMAND ON THE FEDERAL STATE LEVEL UNTIL
2030
The internal administration of the Freestate of Saxony alone will need to qualify
and employ 1.200 persons between 2016 and 2030 (see fig. 7).
Source: Head Office of the personnel-commission (Personalkommission), 2016.
Fig. 7
Need at State Level Saxonia (Only General Management)
Statement of the personnel-commission (Personalkommission): Up to 2030
approx. 1.200 Civil servants are needed.
This is an immense challenge for the University in Meissen. A class in universities
with a structure like the one in Meissen must not include more than 30 (ideally,
not more than 25) students. An additional class necessitates an increase in
teaching staff of 1.5 persons in Academia and a full-time equivalent of 0.5
persons in the administration. This implies for the Freestate that with an
additional four groups, there is an increase of personnel of at least 8 persons, or
more if the increase in the number of classes is even higher.
5
MEASURES TAKEN BY MEISSEN UNIVERSITY OF
APPLIED ADMINISTRATIVE SCIENCES
The university presented a first strategy document for the Ministry of the Interior
in 2014 and suggested to expand the university analogous to the French École
Nationale d’Administration (ENA). In the beginning of 2015, a task group was
established at the ministry. It did not have any immediate results, but in 2016,

| 70
the state government established a personnel commission at the state
chancellery that was to analyse the personnel requirements under the given
circumstances in preparation for the cabinet dealing with the topic in 2017.
These preparations are ongoing and will presumably be completed as planned on
31.03.2017. The university implemented the so-called Academy for the Public
Administration of the Freestate of Saxony (as a centre for continuing education
for all ministries of state). This increases the chance to offer a customer-oriented
and modern continuing education in addition to the regular modern and
ambitious university education. The university, after a long-term reduction of
personnel in academia and administration, currently faces a situation where
teaching can only be ensured by employing personnel that is regularly employed
elsewhere for specific teaching modules. In addition, there are more delegated
teaching staff, and the professional instructors must accept higher teaching
loads. It has to be stated that specialists and young instructors are scarce or
cannot be found at all anymore.
In spite of these challenges, the university implemented a master programme for
Public Governance
6
that started on 12.09.2016 and is a further development of
the existing successful part-time master programme Administrative Informatics.
The development of a part-time curriculum for the master programme Public
Governance includes four main fields:
legal and administrative sciences,
economics and management,
information processing (in the broader sense)
and process management.
The programme aims at providing interdisciplinary competences and
specifications in the areas of management and process orientation as well as in
the information technology, with an additional focus on teaching legal and
economic aspects on a more global and complex level. The intention
in
conjunction with the demands of the customers, i.e., bigger communes as well as
the Freestate
to educate future executives as generalists.
__________
6
https://www.fhsv.sachsen.de/studium/public-governance/.

| 71
6
POSSIBLE STRATEGIES OF THE FREESTATE
One strategic perspective for the Ministry of the Interior, in addition to the
intended education offensive of the state chancellery, is to develop an education
initiative with the help of Meissen University of Applied Administrative Sciences
that needs the corresponding personnel endowment as well as improved
financial and infrastructural equipment. The fact that there is an enormous
increase in the demand for practical instructors that can only be supplied in
cooperation with all levels of the administration supports the importance of a
joint education initiative. This need for a practical education can only be met if
significantly more persons are willing to support the students from Meissen
during their practice periods and to prepare them for their challenging future
jobs, in spite of the increased workload in the administration. The joint education
initiative should be accompanied by an initiative for continuing education, which
the centre for continuing education in Meissen
7
is prepared to support: The aim
is to prepare current executives that are responsible for the management of the
demographic changes for their work in a changing, digitalised work environment,
for example by preparing them for the transition of knowledge to the next
generation of employees. Therefore, an increased discussion of knowledge
management as well as a stronger concentration on processes and their
optimisation is essential and should be discussed and taught together with
questions on project management within programmes of continuing education.
Due to requests from bigger communes, the introduction of a parttime bachelor
for general administration is discussed. It would likely last for three years or
more and would be suited for employees on the intermediate level of the civil
service. An according request of the three large cities implies that the formation
of a test-class may be expedient and may support the upper intermediate level of
the civil service with its special knowledge and experiences. Whether this project
is sustainable remains to be seen.
In addition the Freestate, in conjunction with the university in Meissen, considers
whether students from neighbouring states such as Thuringia, Bavaria and
especially Brandenburg should be included to also attract German-speaking
students from the Czech Republic and Poland. This would support the European
spirit as well, by bringing together the peoples from border regions such as the
__________
7
http://www.avs.sachsen.de/.

| 72
district of Görlitz or the regions on the borders to the Czech Republic in the
Erzgebirge or the Vogtland.
7
INCREASING THE ATTRACTIVITY OF THE CIVIL
SERVICE
The Freestate should strongly consider increasing the attractiveness of working in
the civil service
8
, e.g., by employment guarantees and other monetary or non-
monetary incentives, by development of career paths as already shown by some
communes, but also by addressing of new target groups, e.g., by prioritising the
education in the IT-sector and in process management. Last but not least, the
development of Meissen University of Applied Administrative Sciences to a
central venue for continuing education of civil servants across administration
areas (also, and especially, executives) of the Freestate and the communes, by
using its comprehensive competences in the legal, economic and IT education,
has to be discussed. This would support the university which currently is already
an important venue for undergraduate programs for all aspects of public activity.
8
CONCLUSION
The measures suggested offer the Freestate of Saxony a chance to successfully
shape and organise the demographic change in spite of a decrease of personnel
and a loss of knowledge, by using optimised digital techniques based on a solid
professional training.
__________
8
Kristin Klunker: (Un-)Attraktivität des öffentlichen Dienstes in Deutschland?
Wege zur
Deckung des Personalbedarfs unter Berücksichtigung der Konzepte in ausgewählten
europäischen Staaten, Abschlussarbeit
im
Master-Fernstudiengang
Europäisches
Verwaltungsmanagement an der Hochschule für Wirtschaft und Recht Berlin und an der
Technischen Fachhochschule Wildau am Studienzentrum Brühl (Fachhochschule des
Bundes für öffentliche Verwaltung), 2009
[http://www.verwaltungsmanagement.info/docs/Klunker_Attraktivitaet_des_oeffentl_Dien
stes_2009.pdf].

image
| 73
1
INTRODUCTION
The issue of administration personnel continues to be valid in
research into public administration, especially in the research
area of administration studies. The reason is that we are
increasingly beginning to recognize that the execution of public
administration tasks is effected by its personnel’s actions. The
personnel holds positions of monocratic bodies and participates
in the operations of collegial bodies as is the case in a local
selfgovernment. Obviously the selection of councillors of bodies
making up local self-government units or the appointment,
selection or another form of creation for positions of province
governors or ministers results from processes of democratic
creation of power bodies where questions about professional
qualifications are not always justified (voters are not always
guided by an eligibility criterion) whereas employment in public
administration and organizational units, especially in civil
service positions, should follow a careful selection of
candidates for the relevant positions.
When conducting any deliberations on public administration
personnel I often refer to a quotation from T. Górzyńska’s
dissertation: “Legitimate theoretical assumptions, good law,
thought-out structures and meticulously developed working
methods will practically turn really efficient only if they are
effected by a personnel that understands the essence and
HUMAN RESOURCES IN PUBLIC
ADMINISTRATION
CURRENT
CHALLENGES AND EXPECTATIONS
(THE POLISH-LOWER SILESIAN
PERSPECTIVE)
JERZY KORCZAK
Prof. University of
Wroclaw PhD in
Law, Head of
Department of
Administration
Science at the
Institute of
Administrative
Sciences, Faculty
of Law, Admini-
stration and Eco-
nomics, University
of Wrocław;
jerzy.korczak
@uwr.edu.pl
DOI:
10.1515/wrlae-
2015-0050
First publication:
Wroclaw Review
of Law, Admini-
stration and Eco-
nomics (WRLAE,
Vol. 7, No.1(2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter Open
https://www.degru
yter.com

| 74
objectives of public service, a personnel that is professionally and morally
prepared for the assigned tasks”
1
. The date of this statement is worth underlining
1985
i.e. 30 years ago, the days when Poland was part of the so-called
people’s democracies camp and followed a socialist state regime no matter how
abstract and culturally alien to its citizens were the system's ideological
assumptions taken, given the society’s tradition of fostering a system of values
absolutely at odds with the ideology’s values.
In those days the personnel selection was subject to equally ideological
assumptions
2
and T. Górzyńska’s
statement clearly
deviated from the stereotypes
of the day. However, the system’s transformation of the early 1990s in the
democratic state of law unfortunately did not at all invalidate its relevance and
helpfulness.
This obviously causes one to ask questions about the reasons for such a state of
affairs given Poland’s democratic rule of law system today in which ideological
considerations should give way to the legal order. In my view the reasons are
twofold in nature: legal and sociological. The first refers to the condition of the
law that sets forth employment regulations in public administration. The second
refers to convictions about bloated public administration structures and
personnel which are deeply rooted in the society’s mindset. And both stem from
the conscious
actions of people actively involved in shaping the country’s policy.
Over the past twenty five years Poland’s democratic system has seen the
country’s political decision makers either fail to look into the condition of the
legal regulations at all
3
or made it a point of serious political disputes
4
or
blatantly made it an instrument for getting at hasty political objectives.
5
__________
1
Teresa Górzyńska, Stanowiska kierownicze w administracji państwowej. Zagadnienia
prawne [Managerial Positions in State Administration. Legal Issues] (Ossolineum 1985) 70.
2
Criteria such as a guarantee to perform an employee’s duties diligently on account of an
ideological and moral level prevailed in the regulations of acts providing the foundations
of employment in the-then state administration, see art 11 sec 4 of 15 July 1968 Act on
national councils employees (Dziennik Ustaw
Official Journal of Laws of the Republic of
Poland (hereinafter: Dz. U.) No 25, item 164), also para ordinance of the Council of
Ministers dated 20 December 1974 on the rights and duties of employees of state offices
(the Dz. U. No 49, item 300), in a just a little amended wording art 3 point 4 of Act of 16
September 1982 on employees of state offices (Dz. U. 2013, item 269).
3
The Act of 16 September 1982 on employees of state offices (Dz. U. 2016, item 1511)
provides an example. Despite the archaisms of terms used herein, very often not referring
at all to existent bodies and offices of public administration, to a large extent dead and
not performed and despite an evident need to provide modern regulations of employing

| 75
2
THE CHARACTERISTICS OF THE POLISH CIVIL
SERVICE LAW
It should be stressed most importantly that since World War II Poland has never
returned to the civil service model most common in Europe, a model of a public
service career treating civil service law as a law of a public organization of the
administrative personnel and using a corps system to this end. At the same time
Poland did not adopt the Anglo-Saxon model of positional employment but
developed its own intermediate model between the two models. This resulted in
treating civil service law as part of the labour code
6
, without it being subject to
the general act though, i.e. the Labour Code; however, with numerous scattered
and incomplete
regulations-wise
official civil service pragmatics.
This makes them unsustainable acts because each example of pragmatism in a
certain part of the employment of officials requires the application of either the
regulations of the Labour Code or other acts of the administrative constitutional
7
__________
state employees has not been replaced by a contemporary comprehensive legal regulation
apart from fragmentary amendments.
4
Our politicians needed 6 years to develop the form of the Polish civil service. Even though
preparations took off as early as in 1990 the Act on Civil Service was adopted only on 5
July 1996. Hardly had it become binding when it was amended with a new act on account
of a political scandal arising from appointments of director generals of government
administration offices not in accordance with the Act’s provisions. See Jerzy Korczak,
'Kadry administracji publicznej wobec przeobrażeń
we współczesnym prawie
administracyjnym' [Public administration human resources and changes in contemporary
administration
law] in Adam Błaś (ed), Współczesne problemy administracji publicznej i
prawa administracyjnego. Materiały z sesji naukowej na temat
przeobrażeń we
współczesnym prawie administracyjnym [Contemporary public administration and
administration law issues. Materials from a research session on changes in contemporary
administration law]
– Wrocław, November 1997 (Terra 1999)
43-56.
5
The amended Act on Civil Service of December 2015 provides an example
the Act of 30
December 2015 on amending the Civil Service Act and some other acts (Dz. U. 2016, item
34) that were aimed at getting rid
from government administration offices
of people
holding senior positions in civil service and transferred to those positions in the past i.e.
when today’s opposition was
in power. See on this issue Jerzy Korczak, 'Antywartość w
prawie
administracyjnym
jako
zamierzony
skutek
legislacyjny'
[Anti-value
in
administration law as an intended legislative measure] in Adam Błaś
(ed) Antywartość w
prawie administracyjnym [Anti-value in administration law] (Lex a Wolters Kluwer
business 2016).
6
Act of 26 June 1974
Labour Code (Dz. U. 2016, item 1666).
7
For example, the status of the city mayor in Poland is regulated by as many as three acts:
the Act of 21 November 2008 on self-government employees (Dz. U. 2016, item 902) i.e.
self-government civil service pragmatics; the Act of 8 March 1990 on municipal
selfgovernment (Dz. U. 2016, item 446 as amended) i.e. political system act; and the Act
of 5 January 2011
Electoral Code (Dz. U. 2011, No 21, item 112 as amended) i.e.
electoral law.

| 76
or substantive law
8
. If we take into account the public administration system
that
despite the unitary character of the state
divides it into three
fundamental
sectors:
state
administration,
centralized
government
administration and decentralized administration that additionally is divided into
local self-government administration and that of economic and professional self-
governments. The state administration is not related to the government. At its
most it is subject to parliamentary control
9
, however, it does not have a common
superior, which makes each of its bodies have a separate legal regulation and the
regulations of the aforementioned act on state offices employees apply to those
employed only to a small degree. Despite being centralized under the authority of
the Prime Minister the government administration is internally diversified
because, apart from those employed in civil service positions within the
framework of employment relationships, there are officials employed within the
framework of service relationships
10
. In addition, the group employed within the
framework of employment relationships is divided into civil service corps and
foreign service corps.
Finally, within the civil service corps there are varieties related to belonging to
the general administration under the authority of province governors and
specialist administration. The local self-government
administration’s feature is
primarily the independence of communes, counties and provinces of one another.
Consequently, employment occurs in the area of a given unit even though the
regulations of the self-government pragmatics make it possible to transfer
officials between units upon the mutual agreement of managers of particular
organizational units. As far as the administration of economic and professional
self-governments is concerned, there are no civil service positions and functions
in the selfgovernment bodies are performed without establishing an employment
relationship.
__________
8
For example, the status of the county construction supervision inspector is regulated by
the Act of 21 November 2008 on civil service (Dz. U. 2016, item 1345 as amended) i.e.
civil service pragmatics as well as the Act of 7 July 1994
Construction Law (Dz. U. 2016,
item 290) i.e. substantive law act; in turn, the status of the provincial conservator-
restorer is also regulated by civil service pragmatics
act on civil service
as well as
substantive law
the Act of 23 July 2003 on monument protection and monument care
(Dz. U. 2014, item 1446 as amended).
9
For example, General Inspector of Personal Data Protection, or the Ombudsman.
10
For example, officials of Police, State Fire Brigade, Border Guard, Prison or Special
Services: Central Anti-corruption Office, Home Security Agency, Home Intelligence
Service,
Foreign
Intelligence
Service,
Military
Intelligence
Service,
Military
CounterIntelligence Service, etc.

| 77
In contrast to the traditional model of the civil service career whereby on
account of the public and legal nature of the civil service position employment
was effected in the main on the basis of the nomination, the Polish civil service
law model is characterized by a multiplicity of legal forms of establishing an
employment relationship; only service relationships are established on the basis
of acts of nomination and acts of appointment. For officials employed within the
framework of the employment relationship the following acts are applied: acts of
selection
11
, acts of appointment
12
, acts of nomination
13
and employment
contracts
14
.
Attention should be drawn to the fact that relevant regulations of the Civil Code
introduce a notion of the presumption of an employment contract as a form of
establishing an employment relationship, whereas for the remaining acts
identifying each of them in the given pragmatics
15
is required. This
amidst
those employed in public administration in general (not taking into account the
aforementioned differentiations)
results in the group employed within the
framework of the employment contract prevailing absolutely over the other
groups differentiated on account of their employment model. It should be noted
that ,whereas a transfer of a civil service corps employee from the employment
contract category to a civil service nomination category as a result of the
successful passing of the relevant qualification proceedings
16
is possible only in
__________
11
The following are employed through an election act: heads of rural communes, mayors of
towns and presidents of cities, district governors and other members of county
management boards and marshals as well as other members of province offices
management boards.
12
Applicable for filling positions of managers of central government administration offices,
province governors as well as treasurers of communes, counties and province offices and
deputies of heads of rural communes, mayors and presidents of cities.
13
Quite rarely for some government officials, but primarily civil servants; since 2009 there
have been no nominated officials in a local self-government.
14
Fundamentally, this form prevails in state administration, government administration
(corps members not being part of the civil service corps) and self-government
administration offices.
15
Provision of art 68 para 1 stipulates that an employment relationship is established on the
basis of an appointment in cases set forth in separate provisions and so stipulates art 4
sec 1 point 2 of self-government pragmatics. Provision of art 73 para 1 stipulates that an
employment relationship on the basis of an election is established when an obligation to
carry out work as an employee results from the election and on account of this art 4 para
1 point 1 of self-government pragmatics lists the aforementioned holders of executive
bodies of local self-government units as self-government officials employed on an
election basis. In turn, provision of art 76 stipulates that an employment relationship is
established on the basis of nomination in cases set forth in separate provisions and art 3
point 2 in relation to art 49 of civil service pragmatics.
16
See paras 40-51 of civil service pragmatics.

| 78
the civil service corps as far as self-government employees are concerned despite
the presupposed para 20 of the self-government pragmatics in-house promotion,
which may consist in a transfer from a public administration employee position
to a managerial public administration position; however, this does not entail a
change to the form of establishing an employment relationship since the two
categories of positions are covered by the same employment form.
The state of the regulations of the Polish civil service law characterized this way
is not conducive to appropriate personnel recruitment and its further
development, notably when the above is aggravated by considerations of
political nature and unavoidable pathological phenomena (nepotism, the
dishonesty of recruitment team members). Sociological conditions pointed out in
the early paras add to its negative characteristics. Their general undertones are a
critical approach to the administration as such and to its representatives
employees and officials holding positions in the public administration bodies in
particular. They do not arouse the trust of society
17
and are often abused by
politicians being blamed for the failures of political programmes and initiatives
regardless of whether an individual official is in a position to hamper the delivery
of the programme or make up for the politicians’ faults.
3
ANALYSIS OF EMPLOYMENT DATA AND
DEMOGRAPHIC STRUCTURES OF PUBLIC
ADMINISTRATION PERSONNEL IN POLAND
There is a dispute regarding the number of those employed in public
administration in Poland as well as in other countries. The dispute is between
those who think that the number is too high and has been on the increase and
those who believe that the number is not adequate to meet social needs, which
is reflected in queuing applicants waiting a long time for their matters to be
formally completed. This dispute is of the insoluble type as there are no
appropriately
established
statistical research
methodologies
that
help
unequivocally calculate the number of people employed in public administration
in civil service positions since objective selection criteria are non-existent due a
__________
17
For further info on this issue see Jerzy Korczak, 'Pozyskiwanie i umacnianie zaufania do
władz publicznych przez współadministrowanie' [Winning and enhancing trust in public
authorities through co-admininstration]
in Małgorzata Stahl, Michał
Kasiński, Katarzyna
Wlaźlak (eds), Sprawiedliwość
i zaufanie do władz publicznych w prawie
administracyjnym [Justice and trust in public authorities in administration law] (Lex a
Wolters Kluwer business 2015) 98-114.

| 79
different classification of positions set forth by each public administration act.
Consequently, the Central Statistical Office most often gives employment data in
the public sector and only then the number of those employed in particular
sectors of the state, government and local self-government administrations.
However, these data are not accurate.
In turn, those that claim bloated
personnel use a term ‘official’ to denote anyone employed in public
administration and fail to remember that apart from a person employed in a civil
service position we often come across a front desk person looking after the city’s
green areas or funeral services.
In 2014 the number of people employed in the whole public sector stood at 3
million. In the government and state administrations it was over 440 000 people,
in the local self-government it was 260 000 people. These data are set against
1989
i.e. the beginning of the system’s transformation, the days when the state
administration employed 160 000 people. Such a juxtaposition is flawed. Firstly,
any statistical data from the socialist state days are not reliable. Secondly, the
distinctness
of the public administration’s system –
uniform and centralized at
the time and in stark contrast to today’s decentralised one –
is not taken into
account. Thirdly, the growth of the public services sector arising from new social
needs and stemming from new technological innovations is not taken into
account. And fourthly, some tasks of the contemporary public administration had
been done by the so-called public utilities not listed at the time in the state
administration. Journalists and other public debate participants cite
in their
discussions about the state of Poland’s state administration –
examples of other
European countries where employment in public administration has fallen by
about 800 000 across the European Union over the past few years. They fail to
quote the sources of these data or the methodology of their aggregation, though.
Poland has seen diversified processes in employment level changes. The reason is
that on the one hand employment in the government administration has been
falling and on the other hand it has been on the increase in the self-government
administration. Consequently, it is impossible to judge the phenomenon in an
unequivocal manner.
The number of public administration offices as potential employers of officials
should be taken into account. The number is a function of the legal regulations
appointing particular administration bodies and the offices serving them
(contrary to some views, offices are not created at random nor is it a

| 80
spontaneous process). The state’s
central level features 24 ministries
18
and over
80 state and government offices
19
. Provinces boast 16 province offices and an
appropriate number of offices of territorial bodies within divisions of central
bodies having its own territorial structures. In addition, there are self-
government offices (16 province marshal offices). Then, apart from 314 districts
on the county level, there are an appropriate number of general county
government administration bodies under the authority of a district governor and
specialist ones (county vets). Finally, there are communes and municipalities in
2478 communes. If we add to that simple territorial and constitutional scheme
bodies of atypical territorial structures (e.g. sea offices, mining offices and the
like) the number of a few dozen thousand offices does not seem to be excessive
or unjustified. However, it should be taken into account that apart from the
classical administrative office there are many organizational units in
administration that employ in civil service positions. Employment in these offices
is not a constant given natural fluctuation and a consistent fall in employment in
government administration and a simultaneous growth of its level in self-
government administration. Still, both fluctuations and a host of other processes
affecting the state of the personnel have been giving rise to doubts regarding
their adverse effect on the efficiency of public administration.
The first one is a fall in employment in general. In just the civil service corps 3
700 members have left since 2010. At the same time the total number of civil
service positions has dropped by 1 155 and stood at 119 300 towards the end of
2015. As much as 38% of offices reduced employment; the IRS administration
itself cut 748 positions. Fluctuation is another phenomenon that in 2015 only
stood at 7.3%; in some offices it went up to over 20%.
In parallel a decreasing attractiveness of being employed in the civil service corps
can be seen. This shows that working within this elite civil personnel is not
attractive at all. 2015 saw another fall in the number of applicants per vacancy,
down to 19 applicants on average. Back in 2013 the number was 36 and in 2014
it stood at 24 applicants per vacancy. The ever decreasing attractiveness of
employment in civil service positions in government administration results in a
lower number of applications of young people i.e. up to 30 years of age (10.4%
in 2014 down to 9.0% in 2015). The number of applicants aged 31-50 has been
__________
18
Their number is dependent on ordinance issued by the Prime Minister on the basis of art
33 para 1 of 8 August 1996 Act on the Council of Ministers (Dz. U. 2012, item 392 as
amended).
19
Each of them have a separate act basis.

| 81
on the increase (from 57.4% in 2014 up to 59% in 2015). The number of
applicants aged 51-55 has decreased by 1% down to 30.8. It has remained
unchanged for applicants over 65 and has stood at 1.2%. In 2015 despite these
trends 5 000 people took up employment in civil service positions for the first
time, which is a substantial increase compared to the past years and making up
73% of people employed in vacant positions within the framework of the
selection process.
Moreover, the structure of those employed in the civil service corps is
deteriorating as far proportions between its members and civil servants are
concerned. As previously pointed out in line with art 3 of the act the corps is
fundamentally divided into two categories of people employed in civil service
positions: civil servants employed on the basis of an employment contract and
nominated civil servants
on account of a low number of nominated civil
servants maintained over the past years, the number of civil servants does not go
beyond 6.5% of the total corps members (7 745 jobs). Out of the total number of
119 000 employed in civil service positions 12 345 are ministry officials (even
though out of these 2 517 only are nominated officials), 10 926 are officials
within central offices (here 625 are nominated officials), 8 578 are officials of
provincial offices (among them 642 are nominated), 14 823 are officials of
general administration in the province (with 203 nominated), 8 615 are officials
of general administration in the county (with only 22 nominated), 40 920 are IRS
administration officials (with 2 150 nominated officials) and 4 963 officials in
IRS control units (among them 924 are nominated). The remaining specialist
administration employs 16 842 officials (including 351 nominated) and the
diplomatic corps employs 1 245 (with 311 nominated). The nomination of a civil
servant is dependent first of all on the quotas set in the budget act of a given
year, which for 2015 meant 200 people. 36 KSAP (National School of Public
Administration) graduates applied. They were nominated in the statutory manner.
Out of 828 applicants (in 2014 - 880) 291 successfully completed the
recruitment stages, which resulted in the final nomination of 162 successful
applicants (this means that 2 nominated civil service positions were not filled).
The gender employment structure is also getting worse. The corps is feminized
70% of those employed are women. Women also occupy 53% of senior positions.
Despite regulations friendly for employing the handicapped their employment
level is low and stands at 3.9%. Nevertheless, there are single offices boasting as
much as 12%.

| 82
In 2009 art 4 of the Civil Service Act was amended with a reservation that a
Polish citizenship requirement to be eligible for membership in the corps is not
absolute. Art 5 stipulated that citizens of EU member states as well of as other
states with which Poland signed relevant bilateral agreements can be employed
in civil service positions identified by the General Director of the Office.
Consequently, an influx of the corps members of those countries was expected.
Indeed in 2105 10 foreigners applied for vacant civil service positions; however,
only 1 of those was employed.
4
ANALYSIS OF EMPLOYMENT DATA AND
DEMOGRAPHIC STRUCTURES OF PUBLIC
ADMINISTRATION PERSONNEL IN LOWER SILESIA
Against the backdrop of the country-wide data the Lower Silesian situation does
not deviate from general trends seen in the other regions. It should be
remembered that the government administration exclusively on the level of the
province and the county in parallel to the provincial and county self-government
is operating in the Lower Silesian province. The communes have a commune self-
government only. This is why employment in public administration will concern
only employment in offices and organizational units of the government
administration as well as offices and organizational units of the local self-
government. There are 26 counties and 4 towns with county rights in the
province (Wrocław, Wałbrzych, Legnica and Jelenia Góra). Within this territorial
structure in the government administration there is 1 Lower-Silesian Province
Governor’s Office along with its 3 subsidiaries (in
Wałbrzych, Legnica and Jelenia
Góra) and accordingly provincial Police and State Fire Brigades inspectorates,
provincial inspection bodies, IRS and customs chambers, in addition subsidiaries
and branches of central state offices (e.g. the Supreme Audit Office, the National
Labour Inspectorate), in addition at the county level there operate relevant
county police stations, inspectorates and fire brigades as well as 34 IRS offices.
As far as self-government administration is concerned it is evident that 1 Lower
Silesian Province Marshal’s Office along with multiple organizational units
20
, 26
__________
20
The list included in the Public Information Bulletin encompasses the Lower Silesian List of
Wildlife Parks, the Lower Silesian Road and Railway Service, the Lower Silesian Board of
Melioration and Water Facilities, Territorial Development Institute, the Lower Silesian
Office of Geodesy and Agricultural Areas, the Regional Office of the Province of Lower
Silesia in
Brussels, the Province of Lower Silesia Labour Office in Wałbrzych, the Lower
Silesian Social Policy Centre, , the Lower Silesian Mediation Institution, 4 Provincial Traffic
Centres, the Lower Silesian Agricultural Consultancy Centre, and 13 schools, 6

| 83
districts and 169 municipalities should be taken into account. 46 065 people
were employed in these offices and organizational units in 2015. In relation to
the 2005 count of 41 701 this represents an increase of 10.5%. The number
includes 14 435 employed in the state administration, 11 040 employed in the
government administration and 20 582 employed in the self- government
administration. Each sector of the Lower Silesian public administration has seen
a different dynamic of its employment structure. The number employed in the
state administration has not seen fundamental changes. The number employed in
the government administration has seen a drop of 7% over the past 5 years.
Employment in the self-government administration has grown by 3%. The
counties have seen a drop of nearly 5% whereas the province has seen a growth
of 20%.
Only a more detailed analysis of the statistical data reveals a complete picture of
the processes taking place in the condition of the Lower-Silesian personnel. An
issue of ever decreasing attractiveness of public administration jobs is confirmed.
7 884 people were employed in 2005 in contrast to only 5 382 in 2015. It should
be noted that from among those employed a group previously employed was
dominant since a bare 665 people were employed for the first-time and from
among those 383 were graduates. If we juxtapose this number against data of
annual LowerSilesian graduates the result of this juxtaposition is worrying.
This leads to an analysis of the employment structure in public administration in
terms of employment level. According to 2104 data made available by the
Statistical Office of Wroclaw the Lower Silesian administration had 344
employees boasting a PhD or higher degree, 18 918 employees with a Master’s or
equivalent degree, 3 928 employees with a Master of Science in Engineering or
Bachelor’s degrees. In the same period 1 527 undergraduates were employed in
the administration, 4 678 with secondary vocational education and 17 772 with
secondary education. Apart from civil service positions
in auxiliary and service
positions
there were also employed 1 337 people with a vocational education
and 521 people with gymnasium and primary or incomplete primary education. It
should be remembered that civil service positions must not be occupied by
people below secondary, vocational or lycee level education.
__________
pedagogical libraries, 4 teacher education centres and 4 educational centres, 17 cultural
institutions and a few dozen medicare entities.

| 84
An issue of feminised personnel is also confirmed. Women made up 66.1% of the
total 46 000 employed. Women also prevailed among those newly-employed in
2015
58.9% among those taking up employment for the first time about 60%,
and among those also graduates i.e. 73%.
The aforementioned processes of the ever decreasing attractiveness of
employment in administration and a falling number of graduates taking up first
employment in administration also affect the structure of age brackets of Lower
Silesian officials. According to data made available by the Wroclaw Statistical
office towards the end of 2014 the most numerous group were officials aged 55-
59 (5 676), then officials aged 35-39 (5 250), followed by officials aged 30-34 (4
850), 40-44 (4 469) and 50-54 (4 360). These were followed by officials aged 45-
49 (3 646) and two age groups of 25-29 (2 128) and 60-64 (2 059). The least
numerous were two boundary age groups: 20-24 (323) and over 65 (264).
The aforementioned fluctuation issues
signaled across the country as a
weakness of the legislation that does not tie an official to the administration for
their entire professional career which was the case in the early stages of the civil
service law in the Prussian professional career model
can also be seen in Lower
Silesia. In 2015 employment relationships were terminated with 8 806 officials
(including 3 187 women). Given that 5 382 officials were newly employed in
2015 an overall fall in the number of employed is evident, a point already made.
The analysis of the reasons for an employment freeze leads to the following
findings. Out of the total number of terminated employment relationships 3 640
were terminated by an employer, 297 were terminated by an official, 106 were
terminated due to certification of incapacity for work and 831 were related to
retirement. Maternity leaves also affected the employment numbers (208
officials, almost 100% by women). The employment and terminations statistics
results in a high differentiation of employment tenures in administration. The
most numerous group
9 576 officials
has the longest tenure i.e. at least 30
years; nearly half the size
5 205 officials
is covered by a 5-10
years’ tenure
group, followed by the following tenure groups: 1015 years (4 560 officials), 15-
20 years (4 151 officials), 20-25 years (3 657 officials) and 25-30 years (3 550
officials); finally 2-5 years (1 399 officials) and the least numerous group
927
officials
with a tenure of up to 2 years. The above analyses show that groups of
officials fundamentally match age groups in terms of tenure. Consequently, the
most senior officials are the most numerous group. They began their professional
career still in the administration of the socialist country, a country that was
centralized and founded on ideological foundations rather than legal ones. It is

| 85
they who are identified as creating a negative administration image. Even
though they are most apt at performing their office duties they are loaded with
habits ingratiated from the early days of their employment when their
professional attitudes were being shaped i.e. a typically authoritarian treatment
of a citizen as an applicant rather than a client or a public service customer.
To illustrate the aforementioned process one can cite the case of the Lower
Silesian Province Marshal’s Office. Towards the end of October 2016 there were 1
011 jobs; 1 028 officials were employed, which represents an increase of 2% in
relation to the status of 2015 year end. Similar to the aforementioned analyses
of the public administration HR condition this office also employs more women
(761) than men (268). Their qualifications are mostly high (980 officials) against
48 officials with secondary education and 1 official with vocational education.
The age structure is as follows: 506 officials aged 31-40, 220 officials aged 41-
50, 122 officials aged 20-30 and 121 officials aged 51-60, finally 60 officials
aged over 60. Within 2016 there were announced 71 recruitments for 74 vacant
civil service positions, including managerial positions. 42 selections were
completed till the end of October. 36 people were identified for employment. 29
selections were due to be completed till the end of 2016. The Office job
attractiveness
is clearly dependent on the position’s place in the hierarchy and
job description. For example, a record 24 applications were filed for a position of
Specialist in Waste Water Management Department within the Environment
Division. In contrast, not a single application was filed for a position of Chief
Specialist in the Applications Department within the IT Division.
21
For comparison, 183 job announcements were made in the Lower Silesian
Province Office in 2016. Out of these 158 were completed, 23 are ongoing and 2
announced in December. Out of 158 selections 113 people were identified for
employment; however, 4 of them gave up on an employment, in 4 cases the
recruitment was cancelled, in 7 cases no applications were filed and in 4 cases
the applicants did not meet formal eligibility criteria. Failing to meet the formal
eligibility criteria through announcements about the results of the recruitment
__________
21
In 3 cases 1 application was filed, in 8 cases 2 applications were filed, in 3 cases 3
applications were filed, in 4 cases 4 applications were filed, in 3 cases 5 and 6
applications were filed, in 5 cases 7 applications were filed, in 1 case 8 applications were
filed, in 2 cases 9 applications were filed, in 1 case 10 applications were filed, in 2 cases
11 applications were filed, in 1 case 12 applications were filed, in 2 cases 13 applications
were filed, in 1 cases 15 and 18 applications were filed, and in 1 job announcement 21
applications were filed for 2 position.

| 86
results on BIP DUW website makes it impossible to evaluate the recruitment
frequency.
5
CONCLUSION
The paper presented the legal conditions of employment in each public
administration sector. Then statistical data on the general condition of
employment and the condition of employment in particular sectors across the
country and in the Province of Lower Silesia were presented. Demographic data
were used. The data enabled an analysis of the employment structure in terms of
sex, age brackets and qualifications as well as an analysis of employment
fluctuation data. Their appropriate juxtapositions and comparative studies reveal
a picture of the condition of the Polish and Lower-Silesian public administration
personnel, a not very uplifting picture. Setting aside populist views on allegedly
excessive employment and its bloated levels in particular offices and
organizational units the personnel presents itself as too feminized (this gives rise
to a social perception of the civil service job as being appropriate for a woman
rather than a man), outdated (groups advanced in their age prevail) and not
attractive enough as an employment offer for young graduates.
A preliminary diagnosis of the reasons for such a state of affairs is not only a
layer of the aforementioned sociological conditions but primarily a normative
layer of the civil service law regulations. These regulations do not allow for
delivering a uniform and comprehensive HR policy. The regulations governing the
recruitment for vacant civil service positions are not correct. Neither are ones on
in-house promotions and assessment system. Finally, pay regulations do not
create effective incentives to apply for public administration jobs. Due to their
scattering and lack of cohesion the civil service regulations are not conducive to
creating equivalent employment systems in particular public administration
sectors. And last but not least it should be noted that the civil service
regulations’ weakness is their excessive dependence on political influence even
though art 153 of the Constitution guarantees a political neutrality of the civil
service corps.
References
Górzyńska Teresa, Stanowiska kierownicze w administracji pa
ń
stwowej.
Zagadnienia prawne [Managerial Positions in State Administration. Legal Issues]
(Ossolineum 1985)

| 87
Korczak Jerzy, 'Antywartość w prawie administracyjnym jako zamierzony skutek
legislacyjny' [Anti-value in administration law as an intended legislative
measure] in Błaś Adam (ed), Antywarto
ść
w prawie administracyjnym [Anti-value
in administration law] (Lex a Wolters Kluwer business 2016)
Korczak Jerzy, 'Kadry administracji publicznej wobec przeobrażeń we
współczesnym prawie administracyjnym' [Public administration human resources
and changes in contemporary administration law] in Błaś Adam (ed),
Współczesne problemy administracji publicznej i prawa administracyjnego.
Materiały z sesji
naukowej na temat przeobra
ż
e
ń
we współczesnym prawie
administracyjnym [Contemporary public administration and administration law
issues. Materials from a research session on changes in contemporary
administration law]
– Wrocław, November 1997
(Terra 1999)
Korczak Jerzy, 'Pozyskiwanie
i umacnianie zaufanie do władz publicznych przez
współadministrowanie'
[Winning and enhancing trust in public authorities
through co-admininstration] in Stahl Małgorzata, Kasiński Michał, Wlaźlak
Katarzyna (eds), Sprawiedliwo
ść
i zaufanie do władz publicznych w prawie
administracyjnym [Justice and trust in public authorities in administration law]
(Lex a Wolters Kluwer business 2015)

| 88

image
| 89
1
INTRODUCTION
For more than 40 years now the German Social Security Code
No I (`Sozialgesetzbuch Allgemeiner Teil` - `SGB I`) has
provided the general legal framework for social equity and
social security in Germany
1
. The Social Security Code No I
provides general rules for the whole social security
administration in Germany, based at arts 20 and 28 of the
German Constitution
2
(Basic Law of the Federal Republic of
Germany `Grundgesetz`
`GG`). The principle in art 20 and art
28 GG is called `Sozialstaatsprinzip`
3
. The term is according to
the basic guidelines of the German state, but means only an
objective (`Staatsziel`); it is not used to claim social rights
4
.
Why is this something special? These rules providing social law
shall be effectively administrated on the one hand, but all the
time facing the citizen, the applicant.
Compared with other fields of law, we are facing a very
`citizensfriendly` legislation. 40 years
a good reason to speak
__________
1
Declaration of the Social Security Code No I at 01.12.1975.
2
Arts 20 and 28 German Constitution statute Germany as a democratic
and social federal state, the so called ´principle of a social state
`Sozialstaatsprinzip`.
3
Hans F. Zacher, Abhandlungen zum Sozialrecht (1th edn, CF Müller
1993) 3.
4
It is not possible to claim social benefits in cash out of arts 20, 28
German Constitution.
GENERAL RIGHTS AND
OBLIGATIONS IN THE GERMAN
SOCIAL SECURITY LAW
MATTHIAS THUM
Assessor iuris,
Lecturer at the
Meissen University
of Applied
Administrative
Sciences, Centre
for Continuing
Education,
Member of
`Deutscher
Sozialgerichtstag
e.V. Potsdam`;
matthias.thum
@hsf.sachsen.de
DOI:
10.1515/wrlae-
2015-0051
First publication:
Wroclaw Review
of Law, Admini-
stration and Eco-
nomics (WRLAE,
Vol. 7, No.1(2017),
http://wrlae.prawo
.uni.wroc.pl/index.
php/wrlae) and De
Gruyter Open
https://www.degru
yter.com

| 90
about this `old` law. This article will try to give an answer to the question above.
Is this legislation still `up to date´?
The core elements of all the different social security laws are to provide
conditions of equal development chances for each person and the possibility to
maintain oneself by individually chosen work, and, last but not least, alleviating
difficult situations in life with the help of public support
5
.
First of all, the so called `Social Rights`
6
are written down in arts 210 Social
Security Code No I. These provisions transfer these aims into law as the legal
base for the whole administration of social security. Social rights, for instance,
are the promotion of education and employment, social insurances and social
welfare
7
.
Jurisdiction and the legal literature agree about the interpretation that those
written `rights` only have the character of a declaration
8
and not the character
of real `rights`
9
.
In fact, they are rather principles or headlines
10
. The transfer into real `rights` is
specified by the special social security law, stated in the Social Security
Code
No II-XII (`Sozialgesetzbuch Zweites Buch
Sozialgesetzbuch Zwölftes Buch`
`SGB II-SGB XII`)
11
. This article will not answer the long discussed question as to
the value of these principles in the German social security system
12
. The
__________
5
Art 1 Social Security Code No I
hereinafter: SGB I, of 11.12.1975, Bundesgesetzblatt
Official Federal Journal of Laws, hereinafter: BGBl. I 3015, last amendment 17.08.2017,
BGBl. I 32147.
6
No benefits in cash can be required; see Wolfgang Klose in Kurt Jahn, Gustav Figge,
Günter Wältermann, Dietrich Wiegand, Lutz Menard (eds), Sozialgesetzbuch für die Praxis
(Haufe-Lexware 2011) art 2 m. n. 8.
7
Arts 3-10 Social Security Code No I.
8
Robert Steinbach in Karl Hauck, Wolfgang Noftz, Ulrich Becker (eds), Sozialgesetzbuch
SGB I Allgemeiner Teil (Erich-Schmidt-Verlag ESV 2017) K para 2 m. n. 25.
9
Ottfried Seewald in Anne Körner, Stephan Leitherer, Bernd Mutschler (eds), Kasseler
Kommentar - Sozialversicherungsrecht (CH Beck 2017) art 2 m. n. 7.
10
Bertram Schulin, `Einführung` in Bertram Schulin (ed), Sozialgesetzbuch (dtv Beck 2017)
XXIII.
11
Raimund Waltermann in Bernd Baron von Maydell, Franz Ruland, Ulrich Becker,
Sozialrechtshandbuch (SRH) (Nomos Verlag 2012) para 7 m. n. 1.
12
Seewald (n 9) art 2 m. n. 3; there is still a discussion about the impact of these guidelines
in literature and jurisdiction, and further on: Eberhard Eichenhofer, `Soziale Rechte im
Sozialgesetzbuch` (2011) 9 Sozialgerichtsbarkeit 301, 304; Wolfgang Fichte `Die sozialen
Rechte in der Rechtsprechung des Bundessozialgerichts - zugleich Replik zu Eichenhofer,
Soziale Rechte im Sozialgesetzbuch, SGb 2011 (2011) 9 Sozialgerichtsbarkeit 492-498;

| 91
intention in this article would be to expand the classic notion of the `Social
Rights` and focus all readers on some special legal norms out of the `Social
Security Code No I`, which contain real `rights`, but also duties
two sides of the
same coin.
Usually duties for the institutions of social security administration are rights of
the residents at the same time (and also the other way round, duties of the
residents are rights of the administration).
It seems important to focus on these basic legal statements. They are sometimes
`a little bit` in the background or forgotten as guidelines and borderlines at daily
work. In the end, it is about nothing less than a `best practice` in social security
administration.
Implementing the social law and providing social services correctly according to
the `Social Security Codes No I-XII´ might be one small, but in my opinion
important, piece to integrate people into the society.
The hypothesis is: Especially if people believe that they are separated from the
mainstream society, that they are no longer `shareholders` of the generated
economic success, they may finally opt out from the democratic process. It is all
the more important to use the social administration, the `legal´ interface
between citizens and the government, to show these people that the law is on
their side and will include and not exclude the citizens.
Numerous different and difficult terms and social legal norms intend a very good
practice in advising citizens about their duties
13
and first about their rights
14
. A
fast and comprehensive treatment of their applications is the way to provide the
support of the social welfare state
15
and to communicate the idea of a society
based democracy with equal rights and equal duties
16
.
Good practice in advising the citizens in consultations and objective treatment of
social benefits are an important element for social peace within the society.
__________
Eberhard Eichenhofer, `Bedeutung und Folgen sozialer Rechte des SGB I` (2011) 9
Sozialgerichtsbarkeit 511-513.
13
Exampels: Social Security Code No I art 33, arts 60-65, art 66.
14
Esp. Social Security Code No I arts 3-59.
15
According to Social Security Code No I art 17.
16
Basic Law of the Federal Republic of Germany arts 20 and 28.

| 92
In fact, it is not enough having social rights in theory
it is important how these
social rights are provided.
The `founder` of the German social (insurance) system, Otto von Bismarck,
concluded: `My idea was to convince the working class, or shall I say to bribe
them, to accept the state as a social institution that works for them and will take
care of them.`
A true sentence, at his time and today as well. Social peace: one important
precondition for economic success.
Today we find the guidelines to `convince the working class` in arts 2-59 Social
Security Code No I. Now some important rules shall be introduced.
2
THE ASPECT OF `CONSULTING` (ART 14 SOCIAL
SECURITY CODE NO I )
2.1
CONTENT
Article
14 Social Security Code No I proclaims: `… Anybody has the right of
consultation about rights and duties contained in these Social Security Codes. …`
The multitude of regulations in social law, especially their interrelation, are
overwhelming most of the citizens, not only socially deprived or elderly people
17
.
The German Federal Social Court (`Bundessozialgericht´) deduced by `Social State
Principle`
18
and the `principle of equity and good faith` as a responsibility by the
public social funding agency to support the citizens facing these principles
19
. The
citizens should be treated in the best way by showing all possibilities to have the
opportunity of using their social rights in the best way
20
.
Popular information, for instance on websites or flyers, is not enough at this
point (this is a matter of art 13 Social Security Code No I
public information). It
is the declared intention of the legislator in art 14 Social Security Code No I that
social administration shall offer a detailed consultation focused on solving the
__________
17
Werner Lilge, SGB I Sozialgesetzbuch Allgemeiner Teil (Erich-Schmidt Verlag 2016) arts
13-15 m. n. 1.
18
Basic Law of the Federal Republic of Germany art 20 and art 28.
19
ibid n. 3.
20
ibid. with further references.

| 93
individual problems of the individual person who is in need. Everybody has the
right of `consultation` about his claims based on the German Social Law
21
.
The consultation includes correct, unmistakable, comprehensive and individual
information. Moreover, all obvious options open to the citizen that could be
identified by a rational civilian shall be presented
22
. All open questions that are
relevant for the citizen to make a decision now or in the future, have to be
answered.
There is a still unsolved problem which is discussed in literature. This question
touches the necessity to advise the citizen with the aim of optimizing the social
benefits
23
. That means, for example, it is necessary to advise the citizen in such a
way that he will earn a maximum of benefit with a minimum of contribution or,
as a second example, how to shelter personal financial assets while applying for
basic welfare benefits.
In my opinion, there is no doubt about the correct answer: art 2 Social Security
Code No I clearly states the so called `principle of effectivity`
24
: social rights
have to be offered as extensively as possible
25
. This leads to the conclusion that
advising has to include such calculations of possibilities to realize this principle.
It is the idea of empowering people to make their own informed decisions. But
there are also borderlines. It does not mean spending social benefits like pouring
them from a `watering can`. It would be illegal to take arbitrary interpretation of
a legal right or claim
26
.
2.2
RIGHT WITHOUT A LEGAL CONSEQUENCE?
The right of consultation is a real and valid legal claim
27
. There is only a `small´
problem: if this right is denied, there is no legal consequence written down in art
14 SGB I. Especially the legal figures out of art 34 GG and art 839 German Civil
__________
21
Attention: It does not mean claiming something
it is only about the consultation.
22
Lilge (n 17) art 14 m. n. 17 with further references.
23
In German: `Optimierungsberechnungen`, cf. also Lilge (n 17) art 14 m. n. 34.
24
In German `Effektuierungsgrundsatz, Peter Mrozynski, SGB I Sozialgesetzbuch Allgemeiner
Teil (4th edn, CH Beck 2010) art 2 m. n. 15.
25
Seewald (n 9 art 2 m. n. 10.
26
Example: it is impossible to insure people at the pension system without a legal
entitlement.
27
Mrozynski (n 24) art 14 m. n. 1.

| 94
Code (´Bürgerliches Gesetzbuch`) are not directly fitting. To solve that problem,
jurisdiction
28
developed a special solution in social law practice.
2.3
THE RIGHT TO REINSTATEMENT IN THE GERMAN SOCIAL
LAW
The German jurisdiction answered this problem with a legal institution called
`Sozialrechtlicher Herstellungsanspruch`
29
. This solution states that the
administration of social law has to rehabilitate any citizen who got a wrong or
incomplete consultation and therefore has a personal disadvantage or missed a
claim
30
. But note that this legal institution will not replace the legal institution
of `restitutium of integrum` out of art 27 Social Security Code No X (`SGB X`)
31
.
The requirements are:
Holder of a social right.
Serious violation of duties by the social administration (wrong consultation).
Personal disadvantage of the citizen due to the violation.
The violation / disadvantage can be eliminated by lawful action.
But there is a problem: the citizen has to give evidence due to the violation and
the causation between violation and disadvantage.
A possible way to solve this problem might be a detailed written protocol.
2.4
CONCLUSION
The right of consultation transfers the principle of the social state into the legal
reality and supports the social rights as widely as possible
32
. In the end, this leads
to trust in the public social administration.
__________
28
Richter des Bundessozialgerichts (eds) BSGE - Entscheidungen des Bundessozialgerichts
(Carl Heymanns Verlag 2010) 71,17,22.
29
Kai Grötschel, Der sozialrechtliche Herstellungsanspruch (Verlagshaus Monsenstein und
Vannerdat 2015) 1.
30
Steinbach (n 8), K para 2 m. n. 41.
31
Id. para 14 m. n. 23.
32
Lilge (n 17) art 14 SGB I m. n. 3.

| 95
3
APPLICATION AND EXECUTION OF SOCIAL BENEFITS
ACCORDING TO ARTS 16 AND 17 SOCIAL SECURITY
CODE NO I
3.1
APPLICATION (ART 16 SOCIAL SECURITY CODE NO I)
Applications have to be filed at the competent social administration.
But they will be also accepted by all other social administrations in Germany, by
all municipalities and by all officially authorized German administrations in
foreign countries. Applications received at a not competent administration have
to be passed on to the competent social administration. So if there is a deadline
for an application, it is also possible to meet it by giving the application to a not
competent social administration or municipality. The social administrations are
obliged to treat applicants to supply precise and comprehensive applications.
There is almost a direct causal connection to the right of a consultation: the
consultation is the basis for a precise application.
The applications do not have to have a special form. The whole administration
procedure in social law shall be free of any special formalities. It shall be as easy
as possible. But nevertheless, applications and forms shall always lead to a
structured and effective processing in public administration. For this, accuracy
and comprehensiveness are necessary, even if the failure to do so does not mean
that the application is not effective
33
.
The citizens will have several duties and obligations during the administrative
process which will be discussed later on
34
.
3.2
EXECUTION OF SOCIAL RIGHTS ACCORDING TO ART 17 SEC
1 SOCIAL SECURITY CODE NO I
The social administration has to process social benefits on time, comprehensively
and quickly. Social services and social facilities and infrastructure have to be
served on time and adequately.
__________
33
Lilge (n 17) art 16 m. n. 18, 20.
34
Aspect: IV obligation to cooperate for the citizen.

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Providing social benefits does not only include the monetary aspects
35
, but also
other goods and services such as medical care, especially at provincial level. The
legislation calls for initiative by the social administration to realize the
guidelines of the Social Security Code. It is a mandate to provide services and
non-monetary benefits
36
.
The right to quickly process applications and payment of social benefits
correlates with the provision of art 42 Social Security Code No I. If there is a
prolonged time period until an application is processed, an advanced payment
can be paid by the social administration. If the problem is caused by a dissent of
competence, the social administration that received the first application can
process this advanced payment. Advanced payments always have to be granted,
if claimed by the citizen. The link between consultation and processing the
application is obvious.
4
OBLIGATIONS AND DUTIES OF COOPERATION BY
THE CITIZEN ACCORDING TO ARTS 60-64 SOCIAL
SECURITY CODE NO I
4.1
DUTIES OF THE APPLICANTS
Citizens applying for social benefits have to cooperate in different ways
37
.
Citizens and the social administration have to `protect` the difficult interests of
each other.
38
On the one hand, the social administration has to investigate all positive and all
negative legal requirements for social claims according to art 20 Social Security
Code No X.
39
This simply means that the social administration has to investigate
and provide information that may go further than the citizens initial claim in the
application (principle of official investigation).
But nevertheless, with evidence, the residents have to first provide all basic facts
necessary to process the application.
__________
35
Lilge (n 17) art 17 m. n. 11.
36
ibid, art 17 m. n. 30.
37
Social Security Code No I arts 60-64.
38
Lilge (n 17) art 60 m. n. 2.
39
In German `Amtsermittlungsgrundsatz` or `Untersuchungsgrundsatz`.

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To bring the principle of art 20 Social Security Code No X into effect, the
applicants first have to serve all related facts. Furthermore they have to appear
in person, take part in medical investigation and treatment. They have to
cooperate in all necessary measures with the social administration
40
. These
duties and obligations of cooperation are extensive
41
.
These duties are concluded regularly with the end of the administration process.
But especially in all cases with permanent social benefit, duties continue to be
effective. These obligations are the other side of the coin
42
.
4.2
BORDERLINES OF DUTIES
The legislation about this is quite abstract. According to art 65 Social Security
Code No I duties of cooperation are not in effect, if they are in an incongruent
relationship to the claimed social benefit or in case of other important reasons.
Especially if the social administration can fulfil the duty of serving information
and facts easier or faster, the applicant does not have to fulfil his obligation. For
instance, if the research in a special archive is easier for the administration, the
administration has to collect the information by itself. Also in the case that
these obligations may lead to injuries of life or body or if they are very harmful in
other ways, the applicant is not asked to fulfil his duties. The example of
amputation a part of the body might be impressive. After injuries sometimes a
finger becoming crippled or stiffening. Because of that fact the whole hand can´t
be used in the right way. The amputation of this crippled finger would help to
getting back a kind of mobility at this hand. The applicant does have not to agree
with in such a surgery.
In addition, all information leading to possible danger of criminal prosecution of
the citizen does not have to be disclosed to the social administration.
4.3
LEGAL CONSEQUENCES IN THE CASE OF VIOLATING
COOPERATION DUTIES
If the person claiming social benefits violates the duties of cooperation according
to art 60 and art 64 Social Security Code No I , the social administration can
__________
40
Social Security Code No I arts 60-64 sec 1.
41
Lilge, `SGB I Sozialgesetzbuch Allgemeiner Teil` (n 18) art 60 m. n. 4. 42 In German
`Mitwirkungspflichten´
duties of cooperation.

| 98
refuse or withdraw the social benefit until the citizen cooperates. It is necessary
to notify the citizen in writing while setting an appropriate deadline to cooperate
adequately.
4.4
LEGAL CONSEQUENCES IN THE CASE OF MAKING UP FOR
COOPERATION
According to art 67 Social Security Code No I it is at the discretion of the social
administration to provide the social benefit after the necessary cooperation.
4.5
WEAK DUTIES
WEAK STATE?
According to art 67 Social Security Code No I it is at the discretion of the social
administration to provide the social benefit after the necessary cooperation.
On the one hand, especially in public media, we can read or hear about
malpractice or abuse of social claims. But this is not a problem of having a lot of
rights and only small duties. Each law might have small leaks. The legislation is
asked to close these leaks in a way fitting to the German constitution and
European legislation. At the end, it might be a question about how much social
security will we offer. It is no weakness to offer social security in an easy and
open way. But it is a sign for a very powerful state and a powerful social security
system.
5
CONCLUSION
Only providing social benefits seems to be not enough. The way that social
security is provided also matters. The German legislator, 40 years ago, had a very
clear idea about this `how to` provide social benefits. It is necessary to bring
these general rules back to mind, again and again, they are even not `old
fashioned`. These basic principles are much more: a base for our democratic and
social state. They are an instrument of participation in a democratic state.
The public social administration often has to deal with the poor side of the
society, with people who are really in need of help. Facing new formidable social
challenges in Germany and Europe it seems to be very important bringing these
ideas into effect, at least to create social compensation and social peace in
society.

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In the end, these rules from the German social security law can be used as
general ethic rules or guidelines by anybody as well as in all branches of the
executive power. It can be claimed to be a kind of a `blueprint´ for `best practice´
in administration. Why? Because public administration is always the showcase
for a well-functioning state and its capacity to act and provide `good
governance`.
References
Bismarck Otto von, Gesammelte Werke, Friedrichsruher Ausgabe (vol 9, Otto
Stollberg 1924)
Grötschel
Kai,
Der
sozialrechtliche
Herstellungsanspruch
(Verlagshaus
Monsenstein und Vannerdat 2015)
Eichenhofer Eberhard, `Bedeutung und Folgen sozialer Rechte des SGB I` (2011)
Sozialgerichtsbarkeit (SGb)
Eichenhofer
Eberhard,
`Soziale
Rechte