No. 19




Supervision exercised by county governors over individual administrative acts and the lawfulness of legislative drafting

Analysis of judicial practice pertaining to county governor’s supervision revealed that the judicial branch ascribes a divergent legal effect to supervision decisions made by county governors on the basis of Subsection 85 (4) of the Government of the Republic Act constituting a proposal to bring an administrative act into conformity with legislation.

Such proposals are treated variously as a challenged administrative act, a procedure, or even in indisputable opinion. If a county governor reviews an act already in the administrative procedure stage, the legal nature of the endorsement granted by the governor and its contestability are also at the centre of the legal discussion. Analysis of an example of supervision related to compiling of plans showed that the legal nature of the county governor’s endorsement is not evident and – until the Supreme Court decision no. 3-3-1-61-07 of 19 May 2008 – there was no one single position in judicial practice regarding its effect on the legitimacy of the final act. In this decision, the Supreme Court emphasized that the approval of the county governor should be treated as approval of a binding nature on the basis of Subsection 16 (1) of the Administrative Procedure Act, this being a procedural act, not an administrative act, and this can be contested solely together with the final administrative act.

Involving the county governor in judicial procedure – in the event that the governor performed supervision already during the time proceedings were conducted on the issuing on the administrative act – proved to lack continuity. The governor is involved both for providing an opinion as a supervisory body, as a third party and as a party (respondent).

Divergent judicial practice does not come into being out of nothing; it signals to the legislative branch that there is a need for supplementing the regulatory environment pertaining to supervision. The article also cited as problems in current law the low interoperability of legal acts (the Planning Act and the Government of the Republic Act), lack of time limits for supervisory proceedings, failure to define the legal effect of the result of supervision, and the legal effect of participation of the person performing the supervision in administrative court procedure where the person is involved.

Full article in Estonian