SIGMA Support for Improvement in Governance and Management A joint initiative of the OECD and the European Union, principally financed by the EU

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1 SIGMA Support for Improvement in Governance and Management A joint initiative of the OECD and the European Union, principally financed by the EU Conference on Public Administration Reform and European Integration Budva, Montenegro (26-27 March 2009) Pascale GONOD Professor of Public Law University of Paris - Sorbonne (Paris 1) This document has been produced with the financial assistance of the European Union. The views expressed herein are those of the author and can in no way be taken to reflect the official opinion of the European Union, and they do not necessarily reflect the views of the OECD and its member countries or of the beneficiary countries participating in the Sigma Programme.

2 TABLE OF CONTENTS FRAMEWORK OF THE PRESENTATION... 3 ORGANISATION OF STATE ADMINISTRATION... 3 I- Stability of governmental structures? ministries ) Number of ministerial departments ) Size of ministerial departments II- Pyramidal and hierarchical structure: central services of ministries ) units ) inter-ministerial co-ordination ) consultative bodies... 8 III- Independence and functionality: autonomous structures ) management structures ) regulatory and control structures ) public sector

3 FRAMEWORK OF THE PRESENTATION ORGANISATION OF STATE ADMINISTRATION 1. Under the influence of diverse factors the political context, the history of each country, a certain wish for rationality a division of work is established between various administrative bodies: each administrative body is situated at a particular level of competence (national, regional, departmental, etc.) and intervenes in a given sector of competence (police or education, for example). There are therefor two variables: -a vertical variable, allowing a distinction between national bodies and others; -a horizontal variable, allowing the identification at each level of the degree of specialisation of services. 2. Consequently, it can be seen that every administrative system includes, on the one hand, central services and, on the other, a variable number of territorial services, which reflect the different possible forms of political and administrative organisation (deconcentration, decentralisation, regionalisation, federation, etc.), and finally, specialised services, which constitute the functional bodies that can be found at all levels of the administration. 3. The single objective of this contribution is to provide a study of the organisation of state administration, that is to say central administrative organisation (also referred to as central services), which has authority and responsibility over the whole nation (the entire territory of a state) and which is usually referred to as central for geographical reasons. This organisation is important in that it constitutes, at the level of the state, the meeting point (or, in other words, the intermediary structure) between the political and the administrative, and thus reveals in particular the more or less important degree of professionnalisation of the administrative function. It should be mentioned that the organisation of central state administration is ruled by its constitutional system (parliamentary, presidential, etc.). 4. Without attempting to undertake a comprehensive study, it is possible to identify some of the main features of this extremely complex organisation on the basis of major tendencies observed in the administrative systems of various EU Member States. The following subjects will be dealt with in succession: I- Stability of governmental structures? ministries II- Pyramidal and hierarchical structure: central services of ministries III- Independence and functionality: autonomous structures 3

4 I Stability of governmental structures? ministries 5. In spite of the absence of uniformity among parliamentary systems of EU Member States, the central administration within these systems is organised as ministerial services, which in some way transpose the governmental structure itself. This invariability gives way to a certain disparity in terms of the number and size of ministerial departments, keeping in mind that the degree of deconcentration or decentralisation specific to each state also determines the number and size of ministerial departments. 1) Number of ministerial departments 6. The number of ministerial departments varies from one state to another, a variation that results mainly from legal rules for the creation of a ministry and from certain events of a political nature: in fact, stability is obviously necessary in order to preserve the continuity of the state, but too much rigidity can appear to be an obstacle, from a political standpoint, to the constitution of a coalition government. 7. In principle, the distribution of competences among ministries is carried out according to the substantive areas of the action, even though there may remain some ministries with a geographical competence (this is the case in France, where there is a ministerial department dealing with overseas departments, or in the United Kingdom, with its ministries for Scotland, Northern Ireland and Wales). Furthermore, it goes without saying that, in view of this, the degree of intervention of the state in economic and social matters an element that differs from one country to another has an impact on governmental structures. - creation 8. In some countries, the constitution sets the number of ministries, such as in Ireland (article 28 of the Constitution foresees between 7 and 15 departments); in others, such as in Italy or Estonia (15), it is set by law. The high legal level of intervention (constitution, law) aims to give precedence to stability in the event of governmental changes or reshuffles. In general, the number of ministries is determined by norms at a regulatory level (this is the case of France or Poland, for example). Flexibility in creation can lead to irrational situations. One example of this is the case of ministries that appear and disappear with their ministers (as an example, Françoise Giroud, French Ministry for the Condition of Women)! On the other hand, too heavy constraints applied to the creation of a ministry can lead to the setting-up of other structures, referred to as agencies or authorities, which are functional structures (the case of the USA is exemplary in this regard, but evidence of this can also be found in Europe). 9. It is necessary nevertheless to point out that the development of the number of ministries can be restrained by both the existence of financial constraints and a kind of resistance of existing structures to change, which can lead them to resist any new ministerial attachment or to relinquish certain competences, to the benefit of new administrative entities. - political events 10. The desire for a political dosage (or for simple whims, which are more debatable, as indicated above) can lead to an expansion of governmental teams, and therefore of ministerial departments. This is the case in the formation of a coalition government (as in Germany, Italy or France). Even so, a concern for rationalisation leads to efforts to reduce the governmental team, but this is only rarely accomplished. Thus in France this issue appeared in the proposals of candidates for the presidential election, and the Picq report ( The State in France, 1995) recommended a team of 15 ministerial departments. 11. In the countries that recently joined the EU, the period preceding integration provided an opportunity to reduce the number of ministries, in particular in countries that had previously been part of 4

5 the Communist bloc, where the number of ministerial structures was high. Thus this number decreased from 18 to 11 in Estonia (1992), from 24 to 17 in Poland (1996) and again in Slovakia (16 ministries in 2002). 12. Some ministerial departments are run by a single person, the minister; but in others due to political imperatives, in particular for the distribution of portfolios or the number of state secretaries (around 100 in Great Britain and Italy) the management is divided and consequently entrusted to several persons of unequal status. This fragmentation leads to one person holding superior authority and the others, with various titles (minister, delegate minister, secretary of state, etc.), being attached to him. This phenomenon, which may mean a change from the classical hierarchical model of ministries, can be observed in most Western democracies. 2) Size of ministerial departments 13. The size is extremely variable, but there is nevertheless some constancy: ministries referred to as regal (e.g. defence, justice) are generally very imposing (in particular in terms of the number of officials), while ministerial departments, responsible for example for equipment, are of lesser importance (even if the attention given to the environment and to sustainable development leads to an expansion of the roles of these structures). Attention should nevertheless be given to the meaning of changes: they may be attributed to a particular government (depending on the political priority given to an action), but also may constitute an indication of the way in which functions are organised. Thus, depending on whether a given task for example, education is entrusted, entirely or partially, to autonomous functional structures can in fact reflect reality rather closely, whereas on the contrary, close formal structures can reflect distinct realities (in the area of education, in particular between management tasks and regulation). II Pyramidal and hierarchical structure: central services of ministries 14. Central bodies basically consist of ministries, which are co-ordinated at the top by the head of the executive, who in certain cases is moreover in charge of a ministerial department (of finance, for example). 1) units 15. The minister is a member of the government but also the head of an administration over which he exercises hierarchical power. He is responsible for the organisation and internal management of his ministerial department. He therefore has at his disposal the means to run his ministerial department. Moreover, in Germany there is a traditional principle called Ressortprinzip which conveys the provisions of article 65 of the Basic Law 1, according to which in the framework (of main political guidelines determined by the chancellor), each federal minister runs his department autonomously and under his own responsibility. 16. Placed under the authority of the minister, services are traditionally organised according to a hierarchical and pyramidal model. While there may be no standard organigramme, on the other hand the organigramme of a ministry shows a division made up of a certain number of units, which have various names: directorates, offices, divisions, etc. In France they are called directorates, some of which correspond to the various sectors of competence of a ministry (e.g. for the interior ministry, general directorate of local government, directorate of national policy, directorate of civil security, etc.). These directorates are referred to as sectoral or vertical. They are opposed to those directorates referred to as horizontal, which correspond to a function of internal management (general directorate of administration in the ministry of the interior, directorate of personnel, directorate of legal affairs, etc.). The directorates are 1 German constitution of

6 divided into sub-directorates, which are sometimes regrouped into services (intermediary level between the directorate and the sub-directorates). Each sub-directorate is in turn divided into bureaus. At each of these levels are the corresponding functions of director, head of service, deputy director, bureau chief. These structures are generally stable, even if some ministries have more difficulty than others in setting up their organisation on a rational and durable basis. 17. Beside this pyramidal structure there may be services that are directly attached to the minister (press relation services, information or inspection services, etc.); some of these correspond to functions that concern various directorates and are given various names (delegation or commissariat in France). 18. In EU Member States there are some differences related to the connection between the political level and the administrative level within the ministry. 19. First of all, at the head of the administration, and under the authority of the minister, there may be a secretary general, who has the task of co-ordinating the activities of the various entities constituting this organisation. The occupant of this post is a powerful official, especially as he usually has extensive administrative experience or a stable status. The importance of these civil servants was considerable during the Fourth Republic in France as well in Italy due to the rapid succession of governments. There are still some traces of this in some ministries in both countries (in particular in Defence and Foreign Affairs), and there is a recent tendency towards their development in France. This solution is much more permanent in other countries: in Great Britain the Permanent Secretary, a senior civil servant, is an extremely important person as he manages all of the ministerial services (and is also advisor to the minister); a similar function still exists in Germany, with the senior civil servants who are the Staatssekretäre, as well as in Ireland, Denmark, Belgium, Greece, Netherlands, etc. 20. Also, the connection between the political impulse and the administrative application may be direct, and in the hands of the minister, or it may operate by means of an intermediary structure that is between the minister and the administrative bodies of the ministry placed under his authority; the ministerial cabinet is the perfect illustration of this arrangement, but not the only one in the EU. 21. In the first place, the ministerial cabinet (which can be translated in English as the minister s office), which is referred to as a typically French body (although it is found in Belgium or Italy), is set up by the minister; these are his personal collaborators (in principle about 10 officials). Among them are the cabinet director (who is responsible for the cabinet and stands in for the minister in the management of the ministry), the cabinet chief (in charge of managing the cabinet, missions of the minister, his agenda, etc.), and technical advisors and official representatives (responsible for a sector or a specific dossier). The role of the cabinet is to ensure the co-ordination of the ministry s administrative services and to determine and oversee the implementation of ministry policy; in other words, it ensures the systematic follow-up of all matters for which the ministry is responsible, and in this role it has often been perceived as being a demonstration of defiance with regard to the bureaus because of the filter or screen that it can set up between these services and the minister. An old structure in France, and tied to its history and traditions, the ministerial cabinet is not an exception, with some reservation, when taking into consideration the fact that ministers everywhere have advisors or personal collaborators, the number of whom has increased in Great Britain, Ireland and Germany. 22. Secondly, some positions in central administrations have the specific function of ensuring the liaison between the political sphere (the minister and/or his cabinet) and the administrative sphere (the services). If in principle, as is the case in Great Britain where the political neutrality of civil servants is firmly established, the minister can choose his subordinates, this is not at all true in Germany, where the notion of a political civil servant (politischer Beamte) is acknowledged. The positions of secretaries of state and directors can be filled, without consideration for the normal rules of promotion in the public 6

7 service, by civil servants, but who have been chosen on the basis of political criteria (a mechanism that is utilised basically whenever there are political changes). The positions that are recognised in France to be subject to the discretion of the government closely resemble this legal mechanism: a list of positions, established by decree, which include in particular the management of central administration, prefects, ambassadors, etc., are filled at will (although in general by senior civil servants). These Germanic and French solutions introduce some flexibility that makes it possible to deal with political changes, and their use is facilitated by the existence in these countries of a career system of public service. Similar formulas exist in Greece and, in the form of a contractual appointment, in Spain and Portugal. 23. Even in the United Kingdom, where the tradition of neutrality of civil servants means that an official is considered to be able to serve under all governments, regardless of their political colour, the system that thus assumes the stability of these officials in management positions, except for promotion, is not far away from a trend that considers such an assumption to be a bit mythical. 2) inter-ministerial co-ordination 24. This co-ordination is carried out by the head of the executive, who has a role of management and of administrative and governmental co-ordination, which he exercises to assist services, whatever their importance. Moreover, in some countries these services constitute a ministry (the Bundeskanzleramt in Germany, as well as in Greece or Spain), but they may be attached to the head of government, without having the status of ministry. This is the case of Italy, the United Kingdom (with the Cabinet Office), and France. 25. In France (and without taking into account the specificity linked to the diarchy at the head of the executive, which exists elsewhere, such as in Slovakia and Poland), the organisation is complex and relatively heavy. In fact, besides the exclusive services of the Prime Minister (who has at his disposal, like any minister, a cabinet with members playing a role of mediator between ministerial departments), under his direct authority are placed various administrative institutions that correspond to the three basic functions of the head of government. - the function of secretariat of executive power: This function is exercised by several bodies. The general secretariat of the government, which prepares the council of ministers and diverse meetings, includes a legal service that co-ordinates all activities for the preparation of texts; this secretariat acts as a liaison between the executive power and parliament. The general secretariat for European affairs coordinates the application of Community law as well as the participation of ministers in the Council of the European Union. This function, generally assumed by the head of the executive (e.g. Poland), is elsewhere attached to the chancellery (e.g. Estonia) or assumed by a ministerial structure (e.g. vice prime minister for European integration in Slovakia). The general secretariat for national defence assists the head of government, in liaison with the presidency of the republic, in the exercise of his responsibilities in matters of defence or national security. - the function of general administration, which concerns the public service and various informative actions (school of public administration, management of the Official Journal, etc.); - the function of research and development, which is very wide. 26. As the government is a solidary and unitary body, inter-ministerial co-ordination is fundamental and is achieved through meetings or co-ordinating councils that bring together ministers (and/or their collaborators), and at the top through the council of ministers, presided by the head of the executive. 7

8 3) consultative bodies 27. The phenomenon of consultation tends to associate its recipients with an administrative action, and therefore facilitates acceptance of that action, but it also often in parallel enlightens decisionmaking. In other words, consultation combines the demands of democracy with efficacity. 28. In the contemporary administration, consultations are numerous, and as a result numerous consultative bodies have been set up, most of which are specialised and placed either next to the chief of the executive or next to a minister. There are also consultative bodies with a general role, usually referred to as a state council, which are responsible for advising the government. The French model of the state council (Conseil d Etat) is thus found in several European countries that have been influenced by it, such as in Italy, Belgium or Luxembourg, as well as in Greece and the Netherlands. III Independence and functionality: autonomous structures 29. The number of autonomous administrations, combining independence and functionality, has increased, revealing a kind of fragmentation of the central administration. These institutions, which could be considered as parallel to central organisations, have a very diverse status and just as diverse areas of intervention. An attempt could be made to classify them according to the main missions that they have been given. 1) management structures 30. These structures are organically distinct from basic moral persons and are characterised by the three following features: the principle of autonomy in relation to the community; the principle of speciality; finally, whether they be private or public persons: as their status is diverse, there is a lack of uniformity. 31. With regard to these structures, a phenomenon of multiplication is taking place, which prevents a rigorous classification of these institutions or even an evaluation of their number. This is the case of American federal agencies, which are often presented as being the model (about 50 at the federal level), British quangos (500 at the national level), French public institutions (several thousand), and enti pubblici in Italy (40,000). On the other hand, in small-sized countries, it is easier to draw up a list of these structures (in the case of Luxembourg or Ireland, where they numbered 134 in 1992). 32. There is no uniform status for these administrative entities, which consecrate a kind of dismemberment of the administration at the same time as an inability of traditional structures to assume responsibility for certain functions. However, if efficacity is the objective in setting up these administrations, and as is shown by the diversity of systems of public institutions in France or in Italy, the coherence between status and function is often debatable; moreover, as demonstrated by the conditions of their creation, their resources or even the missions they are to fulfil, the autonomy of these institutions and of quangos is diverse, ranging from very strict supervision to quasi-total autonomy. 2) regulatory and control structures 33. Once again, the origin of these authorities is set in the United States, with the independent regulatory commissions, which regulate and control a specific sector and are run by a commissioner whose mandate, non-renewable, is of varied duration. They enjoy a great deal of independence, in relation to both the executive power and the legislative power. 34. Such commissions have been established in France under the name of independent administrative authority. Their existence is based on their independence, as indicated by the various 8

9 directions in which they have developed. The fields of information and communication have as their reason for existing the protection of citizens. The field of regulation of the economy has its development linked to the phenomenon of deregulation and to the disappearance of public monopolies due to the opening of competition in the public service network and to the necessity to ensure the uncoupling of the operator and the regulator. Finally, the third large field of intervention of independent administrative authorities is derived from the struggle against bureaucracy and the desire to renew relations between the administration and the citizens. The basic justification which is common to them all for the creation of independent administrative authorities is the reinforcement of the guarantee of impartiality in the interventions of the state. These three dimensions can be found in other countries. 35. Even if similar commissions set up in Great Britain have only consultative powers, they play an important role in terms of regulation of markets in sectors that have been nationalised (energy, transport, etc.). The same is true in Germany, with for example the commission responsible for competition and concentration (Bundeskartellamt). In Italy these commissions have been set up in the field of economic regulation, and they also exist to guarantee certain freedoms, as in the audiovisual sphere. 36. These authorities certainly clash with the principle of a pyramidal and hierarchical organisation (which explains why they have appeared in places where this principle is weak, as in the USA), but they make it possible to deepen the demands for transparency of administrative action, participation due to an opening up to the public, and better evaluation, which is indispensable for efficacity. 3) the public sector 37. The assumption of responsibility by the state for productive activities varies considerably from one country to another, depending on its degree of commitment in economic and social sectors: this commitment has been huge in France, Italy and Great Britain (electricity, transport, banking, iron and steel industry, etc.) and also is very strong in Germany, for example (railroads or gas). Even though the waves of privatisation have considerably reduced here and there the size of this sector of activity and subsequently of what is referred to as the administered economy, it is nevertheless true that in numerous cases the state remains a shareholder of the relevant enterprises (which does not mean that it avoids difficulties with regard to European requirements, in particular with regard to competition). 38. The adaptation of administrative structures is closely linked to the implementation of public policies. Although there is no legal constraint tied to the integration of states into the European regional space and EU membership does not have the effect of eliminating national administrative specificities, on the other hand a kind of convergence of structures of the central administrative apparatus is obvious, structures that meet common democratic requirements. It is therefore remarkable to observe the evolution of the conditions of democratic legitimacy of administratives structures: traditionally based on the mechanisms of political democracy, or more precisely on elective democracy, today this legitimacy gives way to preoccupations resulting from participative democracy, as from the moment that it is understood to include the three elements of transparency, participation and evaluation. The development of these requirements, which complement the mechanisms of democratic control, without a doubt also contributes to the efficacity of this control. 9