Błachucki, Mateusz2019-05-182019-05-182019M. Błachucki, Ponadnarodowe sieci organów administracji publicznej oraz ich wpływ na krajowy porządek prawny (na przykładzie ponadnarodowych sieci organów ochrony konkurencji) , INP PAN, Warszawa 2019.978-83-950165-5-4https://e-bp.inp.pan.pl/handle/123456789/910The book comprehensively analyses the legal character, creation, functioning and evolution of transgovernmental networks, with particular emphasis on their impact on the national legal order and the functioning of Polish authorities involved in networks. Transgovernmental networks form a mosaic of organisational arrangements. It is not feasible to study all existing transgovernmental networks within the scope of one book. Therefore, the research has been limited to carefully chosen sets of networks. Taking into consideration the maturity and history of networks, as well as the variety of possible structures of cooperation, the transgovernmental networks of competition authorities have been selected. These networks are well developed at regional, European and global levels. Recent decades have witnessed a significant propagation of transgovernmental networks devoted to the development of competition law cooperation at an international level, such as the International Competition Network (ICN) or UNCTAD, and at a regional level, such as the European Competition Network (ECN), the European Competition Authorities (ECA) and Nordic Co-operation. There is a visible diversity of legal grounds for the creation and operation of these networks. Despite many similarities, the selected networks are not uniform. Emphasis should be placed on the fact that competition law is especially well suited to being studied in the context of the activities of transgovernmental networks. Contemporary competition law has been developed through and by transgovernmental networks, which makes them particularly well chosen to be studied in the context of the impact that transgovernmental networks have on the domestic legal order and public administration. Transgovernmental networks are not a homogeneous phenomenon. Despite the fact that some of those networks were created several decades ago, there has been a significant increase in their number and importance over the last two decades. When analysing the concept of ‘network’, significant problems arise because of the heterogeneous character of this form of cooperation. In the scholarship of political science, administration science and management science, the concept of network administration has been functioning for a long time. It seems, however, that transgovernmental networks of public authorities differ in many respects from the existing network administrations. This difference concerns the legal framework for the functioning and operation of such transgovernmental networks. A large number of transgovernmental networks have not one single mode of establishment or functioning, but have evolved to adapt to the changing situation and needs of their members. At the same time, one may observe a significant increase of the number of the new transgovernmental networks. Taking as example transgovernmental networks of competition authorities, we can observe that they flourish on all possible levels. At a global level, the International Competition Network was established back in 2001. At a European level, there are at least three important networks, namely the European Competition Network, the European Competition Authorities and the Merger Working Group (EU). On a slightly lesser scale, regional networks have also been erected such as the Marchfeld Forum, Nordic Cooperation and the Central European Competition Initiative. Such a diversity of network links between national competition authorities makes it more difficult to analyse this phenomenon. This is especially true if we take into consideration the fact a particular competition authority may be an active member of all the mentioned networks. What is even more puzzling is another observation that most of the existing competition authorities also combine other regulatory functions, such as competition protection or regulation of the energy or telecommunications markets. In all these areas, separate transgovernmental networks exist at all levels of governance. The book examines the ‘snowball network effect’, meaning that once an authority engages in one network, it tends to be more eager to join further networks. As a result, there is a patchwork of networks links that are attached to the same national authorities, but at different areas of regulation. The creation of transgovernmental networks is a function of the various processes taking place simultaneously. The most important of these are: European integration, the globalisation of the economy, the adoption and development of national legislation in new areas of regulation (like competition law) often under the influence of foreign laws, and the growing interdependence of national authorities from various jurisdictions. European integration is a driving force of many new networks in which Polish authorities participate. A typical model may be observed in the area of competition law. The European Competition Network serves as a mechanism of the decentralised enforcement of European competition law. The network is led and managed by the relevant Directorate General for Competition. DG Comp is responsible for implementing European competition law and for ensuring the uniformity of its application. The model is replicated in other areas of European law regulation. At the same time, the globalising economy means that some cases dealt with by the national authorities have wider than national or even European dimension. For example, the same concentrations may be assessed in a number of countries in parallel. In this situation, there is a need for close cooperation between authorities who examine the same merger all over the world. In addition, emerging international networks tend to develop certain uniform standards for the treatment of similar cases. These commonly agreed standards influence the administrative practice of the national authorities involved. Such common standards are easily acceptable by many authorities as their national regulations mirror these foreign standards. For example, the Polish competition law was formed under the considerable influence of European competition law. When the ECN was established and some soft law documents were adopted, it was easy for the Polish competition authority to follow them, as the Polish legislation was basically drafted accordingly. It shows that it is much easier for the younger jurisdictions, such as Poland, to engage in transgovernmental networks and follow transnational standards than mature jurisdictions, such as Germany, where there exists a long tradition of German competition law and new international standards are not so easily applicable. The Polish provisions do not generally provide for any legal basis for the participation of the Polish authorities in transgovernmental networks. In fact, the Polish provisions hardly ever recognise any influence that may take place as result of the activities of transgovernmental networks. The undertaken analysis of transgovernmental networks and the Polish authorities engaged in those networks indicates that only in a few cases were there legal grounds for the Polish authorities to join the network. In some cases, the network is established directly by the EU and European law provides for the legal basis of Polish authorities engaging in the network, though even some European networks have a dubious legal basis, or none at all. This is the case with the Merger Working Group, which serves as a network for European competition authorities dealing with mergers (please note that ECN is devoted exclusively to antitrust, and does not cover merger cooperation). On the other hand, it seems that in most cases the participation of the Polish authorities in transgovernmental networks is a result of their belief that the general jurisdiction over certain area creates a sufficient legal basis to take this kind of action. Polish authorities joining transgovernmental networks do not provide any legal justification for their steps. There are no public notices on why they join certain networks. One can assume that this is due to their beliefs in the legitimacy of their actions, and the desire to belong to a ‘European or world community’ responsible for the sector. In some cases, this approach is forced by the logic of European integration, which leaves less and less place for national laws. Transgovernmental networks are developing their own rules by adopting soft law documents. Such soft law documents are not formally binding, but they have an impact on national legal orders. Such an impact is generally not recognised or supported by any applicable national rules. A characteristic feature of transgovernmental networks is an attempt to integrate members through the adoption of common documents. Such documents may take the form of declarations or soft law. These documents are intended to set out rules shared by all the members of the network. They take the form of joint declarations, notes, best practices or guidelines. Sometimes they are described as ‘network law’. Together with the development of transgovernmental networks, they often take the form of increasingly detailed documents. Their legal status and their legal force are based on the consent of the members of the network and their dedication to apply these guidelines in their jurisdictions. This results in a bizarre situation where non-binding international documents are taking effect in the national legal orders and determining the administrative practice of the relevant authorities. This raises fundamental questions about the constitutionality of such solutions and their compliance with the applicable constitutional sources of law. This phenomenon may also be analysed through the prism of the concept of a ‘multicentric system of law’, or the concept of ‘legal pluralism’. Those issues are carefully discussed during in the book. Adopting transnational soft law standards is often a preliminary stage before a subsequent change of national legislation. National authorities are the transposition bodies who initiate the adoption of relevant national legislation. At the same time, however, certain soft law standards take precisely this form to provide flexibility to the national authorities – participants of the network. Observing the practice of transgovernmental networks, one may point out that internationally agreed standards in the form of soft law are a preliminary stage before the adoption of national provisions. In such situations, there is often an argument raised in the legislative process about the need to harmonise Polish regulations with international standards. At the same time, no one mentions that these ‘standards’ were actually created by the national authorities concerned. In parallel, there is also a tendency for some agreed standards not to be transferred to the national level, because they would never obtain the approval from the legislature. In this situation, the maintenance of these standards at the suprana tional level provides them with an impact on the administrative practice of the members of the network, without the need to change national legislation. By joining transgovernmental networks, the Polish authorities become a part of two transnational systems of public administration, i.e. European and global. The establishment of European transgovernmental networks has changed the image of the Polish system of public administration. In addition to the hierarchical domestic relations, new horizontal linkages with other national authorities have also been created. In some cases, vertical (hierarchical) relations between national authorities and the EU institutions were added, as well. The emerging global administration (or global governance) is undeniable. The ICN stands at the forefront of this structure. Despite its informality, the ICN lay down the foundations for building mutual trust, adopting common standards and cooperating in real cases. As a result, ICN began to take place of the OECD or the WTO in terms of organising international cooperation and standard setting in the area of competition law. Multilevel governance in competition cases is more apparent nowadays. Such organisational patchwork manifests itself at the level of jurisdiction, where it is common for the same proceedings to be conducted under national laws and EU regulations. Such organisational and procedural patchwork also leads to a lack of transparency and blurs rules on the accountability of national authorities. As a result relevant national authorities may escape any effective supervision. There are no adequate regulations allowing the chief organs of Polish administration to supervise the international activities of other Polish authorities. The Polish authorities involved in international cooperation are very autonomous in nature, and are generally not subject to any supervision. No comprehensive reflection can be observed on the part of the chief organs of Polish administration as to how such international activity of particular Polish authorities should look. Nowadays, it is not questionable that particular national authorities should engage in international cooperation. However this concept does not provide for the legal basis for such international activities. Nor does it provide any guarantees to ensure the operational consistency of Polish external policy. This consistency is guaranteed only in limited areas of legislative process at an EU level. During this process, the Polish authorities seek authorisation from the Foreign Office and present the official position of the Polish government. However, involvement in hard law legislation occupies only a minor part of the international activities of the Polish authorities involved in transgovernmental networks. A substantial part of these activities in the framework of transgovernmental networks consists of administrative assistance and the creation of formally non-binding sector specific standards. Furthermore, the provisions of Polish administrative law are not sufficiently developed to create an adequate regulatory framework for the proper functioning of the Polish authorities within transgovernmental networks. This is especially true in relation to procedural provisions. In the absence of the applicable rules, the Polish authorities engage in international cooperation on their own terms, usually without any proper legal basis. However, the analysed problem not only has a legal dimension, but also a political one. The current administrative practice in the area of joining and participating in transgovernmental networks is marked by randomness. Under the current conditions, the Polish government has not set out any long-term goals to which international cooperation should serve. As a result, many policies of particular authorities lack a long-term perspective, as well. What is also important is that there is hardly any reflection on the development of transgovernmental networks on the part of the chief organs of Polish administration. Despite their crucial political role in Polish administration, they fail to supervise the international activity of the various Polish authorities engaged in networks, and they are unable to ensure the coherence of government external policies. The development of transgovernmental networks poses a challenge for the Polish administrative law science, and for the Polish administration itself. Transgovernmental networks bring into question many traditional views on public administration and administrative law. They confront traditional assumptions and concepts with new phenomena. Transgovernmental networks do not fit into traditional paradigm of public administration as a hierarchical institution where all organs have clearly defined and separate competences and they are functioning within national boundaries. For these reasons, existing views on cooperation between public authorities and invented concepts like ‘administrative agreements’ are no longer sufficient to describe the complex forms of co-operation between national administrations. The development and intensity of transgovernmental networks of authorities raise questions about the basic Polish institutions of administrative law, i.e. the hierarchy of sources of law, the legal forms of actions of public authorities, exclusivity and sharing competencies between authorities, characteristics of international authorities and finally exercising sovereignty and accountability of the Polish administration before the Polish sovereign. The existence and functioning of transgovernmental networks produces interesting issues in each branch of administrative law, i.e. institutional, procedural and substantive provisions. The book is divided into twelve chapters. The first four chapters serve as a tool for the development of the theoretical concept of network administration, as used in the legal and social sciences scholarship, both Polish and foreign. Special attention and emphasis is placed on a perception and understanding of transgovernmental networks in public international law and administrative law scholarship. In addition, these considerations are enriched by the exploration of transgovernmental networks in light of the findings of political science and economics. All the research efforts are aimed at identifying the legal character of transgovernmental networks. Those efforts help to draw up a working definition of a transgovernmental network. Moreover, a legal classification of transgovernmental networks is formulated. These findings are confronted with the Polish doctrine of administrative law. In particular, traditional forms of cooperation between public authorities are analysed in the context of the development of transgovernmental networks. Similarly, transgovernmental networks are analysed against traditional forms of interstate cooperation, as studied by the international law scholarship. This part of the book is concluded with the identification of general means and forms of international cooperation between competition authorities. It is followed by an evaluation of all the international activities undertaken by the Polish competition authority. It also includes studying both factual and legal activity of the competition authority (the distinction is important, since hardly any international related activities of the Polish competition authority are regulated by Polish law). This analysis identifies the role and significance of transgovernmental networks in international cooperation of Polish competition authority. The next two chapters (five and six) analyse selected transgovernmental networks. First the transgovernmental networks of competition authorities are analysed. Each and every such transgovernmental network of competition authorities is described and evaluated. The study of those networks concentrate on motives for establishing the network, its composition, legal and actual activities, means of cooperation and forms of supervision. The evaluation is based on the networks’ formal documents, supplemented by examples of their administrative practice, and direct observation (whenever possible). The presentation of transgovernmental networks of competition authorities is supplemented by a selection of networks of other authorities (namely consumer and regulatory ones). Despite the fact that the networks of competition authorities represent a wide spectrum of legal and informal cooperative arrangements, some distinctive solutions can be found elsewhere. This part of the study is more illustrative and is based on a selective probe of transgovernmental networks. The illustration is beneficial in order to understand whether transgovernmental competition networks are distinctive or represent typical solutions in administrative cooperation at a transnational level. Chapters seven to ten aim to give at a detailed analysis of particular issues identified during the investigation of competition networks as well as other selected networks. First, the undertaken research identifies characteristic features of the regime and the jurisdiction of the national authorities involved in transgovernmental networks. Polish arrangements are analysed in historical and comparative perspectives. To complete the analytical picture, the regime and jurisdiction of the Polish competition authority is analysed against the regimes and jurisdictions of sectoral regulators. It is followed by an exploration of the forms of cooperation within the networks and forms of legal actions and activities of transgovernmental networks. The next step of the analysis is identifying and evaluating how actions undertaken by the authorities participating in networks are reflected in the national legal order. In particular, the impact of transgovernmental networks on the functioning of domestic decision making process is examined. The legal classification of forms of international cooperation within networks is further explored. The basic criterion for the classification is the scope of influence of international instruments over undertaking domestic activities and exercising jurisdiction by the competition authority. The classification does not primarily serve educational purposes, but it categorises the stages of increased influence of transgovernmental networks over competition authorities. First, soft cooperation is presented and evaluated. This includes exchanging experience, organising seminars and conferences, exchange visits or sharing publicly available data and information. Second comes cooperation leading to the adoption of soft law documents. This stage of cooperation shows the willingness of national competition authorities to agree on common principles of enforcement and on a common understating of basic concepts and institutions employed in competition law. The output of such cooperation includes guidelines, best practices, common positions, or information and practical material such investigative handbooks, reports or notices. Third, administrative cooperation is discussed. Such cooperation encompasses different actions undertaken during administrative proceedings, including exchanging of information before and after initiating proceedings, informing each other about initiating proceedings, consulting on issues identified during the investigation, exchanging evidence (if permissible and upon waivers), informing other jurisdictions of investigatory actions undertaken abroad, asking other jurisdictions for formal or informal assistance in investigations or harmonising decisions, and finding common position on remedies with transnational effects. Fourth, the most advanced form of cooperation is presented. This is known as ‘enhanced cooperation’ and may take various forms, such as: 1) the recognition of decisions made by agencies or courts in other jurisdictions; 2) one-stop shop models, e.g. for leniency or markers; 3) the appointment of a lead jurisdiction in cross-border cases; 4) joint investigative teams and cross-appointments; and 5) co-operation at court level. Such a detailed analysis of international cooperation established and developed within the framework of transgovernmental networks leads to the identification of spheres and the scope of influence of those networks over domestic legal order and the functioning of public administration in Poland. This provides an answer to the question whether the Polish constitutional, procedural and substantive provisions are adapted to this form of international cooperation. Continuing this issue, the problem of multilevel governance is discussed. The national administration is analysed through the prism of emerging European and global administration (or European and global levels of governance). The analysis will be undertaken in both directions – bottom up and top down. The tenth chapter explores legal mechanisms for administrative and judicial supervision over the activities of transgovernmental networks and participating national authorities. It also discusses issues of legitimisation and the accountability of transgovernmental networks. The last two chapters (eleven and twelve) are devoted to gathering conclusions drawn in the earlier parts. In particular, the evaluation of the prospects for the development of transgovernmental networks is presented. Special attention is paid to verification of the observation that transgovernmental networks of public authorities are just a step in the formation of supranational authorities. It is followed by general conclusions. On the basis of these conclusions, areas for further research are identified. Finally, legislative recommendations are presented.<< s. 23-52 >> Wprowadzenie << s. 53-86 >> Pojęcie i rodzaje ponadnarodowych sieci organów administracji << s. 87-133 >> Tradycyjne formy współpracy organów administracji oraz państw a ponadnarodowe sieci organów administracji << s. 134-274 >> Ponadnarodowe sieci organów ochrony konkurencji - powstanie, rodzaje i formy aktywności << s. 275-321 >> Inne wybrane ponadnarodowe sieci organów administracji publicznej << s. 322-405 >> Analiza ustroju i jurysdykcji krajowych organów antymonopolowych uczestniczących w ponadnarodowych sieciach organów administracji << s. 406-501 >> Formy współpracy organów krajowych w ramach sieci oraz ich wpływ na sprawowanie jurysdykcji administracyjnej przez krajowe organy administracji publicznej << s. 502-535 >> Ponadnarodowe sieci organów administracji w systemie globalnej, europejskiej i polskiej administracji publicznej << s. 536-576 >> Kontrola działania ponadnarodowych sieci oraz aktywności organów administracji podejmowanej w ich ramach << s. 577-603 >> Perspektywy rozwoju ponadnarodowych sieci organów administracji << s. 604-615 >> Wnioskiplorgan administracyjnyprawo konkurencjiwspółpraca międzynarodowaUrząd Ochrony Konkurencji i KonsumentówOrganizacja Współpracy Gospodarczej i Rozwoju (OECD)Międzynarodowe Reguły Handluochrona konsumentaorgan regulacyjnyorgan regulacyjnyUrząd Transportu KolejowegoUrząd Regulacji EnergetykiUrząd Komunikacji ElektronicznejBook10.5281/zenodo.1494958