Services Provided by Public Authorities: Features of Legal Regulation in Ukraine and the European Union

Introduction

The Basic Law of our state proclaims that Ukraine is a democratic, social and legal state, the content and direction of which determine human rights and freedoms and ensure their guarantee (The Constitution of Ukraine, 1996). Therefore, the modernization of the entire system of public administration in Ukraine should be aimed primarily at introducing a new ideology of public authorities as activities to ensure the realization of rights, freedoms and legitimate interests of individuals, providing them with quality and available services.

In recent years, the issue of streamlining the system of public services has become relevant at the highest state level: numerous regulations and administrative documents have been issued, a number of organizational measures have been taken on this issue etc. However, today the service activities of public authorities is still insufficiently effective, the quality of these activities does not meet the interests and aspirations of the population. The main problems in obtaining public services by consumers remain similar: the complexity of procedures for providing such services, the length of their implementation, lack of information about services and procedures for their obtaining, limited and inconvenience for the subjects of "visiting hours", long queues, lack of comfort in waiting areas, impoliteness during the service by authorized persons, non-transparent and often unreasonable payments, etc. It is the inefficiency and lack of transparency of public service activities of the authorities, the presence of unresolved problems and shortcomings in the organization of public service entities that create a breeding ground for corruption. However, the most significant disadvantage of the service activities of public authorities in Ukraine is the attitude to the individual - the subject of the application - as a petitioner and a source of income, the focus is not on meeting consumer expectations, but on formal compliance with the rules. Note that one of the requirements of the European Union to Ukraine (for which European integration is a strategic direction) is to take the necessary measures to improve public service procedures, improve the quality, accessibility and transparency of these services for consumers, eliminate corruption risks during their provision.

The above shortcomings in the field of public service activities were inherited from the Soviet time and are due to the fact that until recently in the state policy of Ukraine the interests of the state, and not of a private person and law, were in the first. At the same time, in democratic and legal states, in particular in the European Union, the defining feature of the development of legislation is its focus on ensuring the rights and legitimate interests of individuals in relations with public authorities and their bodies (Tymoshchuk, 2003, p. 5).

The aim of the article is to study the essence and content of services provided by public authorities in the European Union and in Ukraine, as well as features of the legal regulation of public service activities in these countries and determine the possibility of borrowing positive foreign experience in providing public services in Ukraine.

Theoretical framework

Some issues concerning the features of the provision of services by public authorities in the countries of the European Union are covered in the works of such domestic scientists as:

Bilous V. T., Tsyhanov O.  G. (Features of formation and development of the theory of administrative services in the countries of the European Union and in Ukraine, 2016);
Bukhanevych О. М. (Features of legal regulation of administrative services in the countries of the European Union, 2014);
De Vries M. S., Nemec J., Potier V. (Contextualizing alternative service delivery arrangements, 2018);
Fagerlund A. J., Holm I. M., Zanaboni P. (General practitioners’ perceptions towards the use of digital health services for citizens in primary care: a qualitative interview study, 2019);
Golosnichenko I. P., Tsyhanov O. G., Popova O. O. (Administrative services in the field of internal affairs, 2015);
Isakov A. R. (Quality assurance of public services: administrative and legal aspect 2014);
Mellors C., Pollitt D., Radtke A. (Directory of Language Training and Services for Business, 2005);
Meltiukhova N. M., Korzhenko V. V., Didok Y. V. (Foreign experience of public administration, 2010);
Powell M., Osborne S. P. (Social enterprises, marketing, and sustainable public service provision, 2018);
Reynolds E. (State aid and services of general economic interest, 2018);
Seerden R., Stroink F. A. M. (Administrative law of the European Union, its member states and the United States: A comparative analysis, 2002);
Tsyhanov О. G. (Administrative services in the field of law enforcement of Ukraine, 2018);
Tymoshchuk V. P. (Administrative procedure and administrative services. Foreign experience and proposals for Ukraine, 2003);
Мykhailiuk Ya. B. (General characteristics of the legal regulation of the provision of administrative services in the European Union and Ukraine; Theoretical principles of providing administrative services in the countries of the European Union and Ukraine 2015) and some others.

However, due to the insufficient development of theoretical and methodological principles and applied aspects of the world experience of providing public services, the practical significance of the features of the legal regulation of such services in the European Union is relevant today.

Materials and methods

To achieve the goal of the study, a set of general scientific and special methods of cognition was used. The application of these methods was due to a systematic approach, which made it possible to study raised problems in the unity of their social content and legal form.

Using the dialectical method, the problems that arise in the development of the institute of public services in Ukraine, in particular to ensure the quality and availability of these services, eliminate corruption risks in the field of public service activities.

The logical-semantic method made it possible to form, deepen and concretize the categorical apparatus of research, in particular, to establish the relationship between the concepts of "state service", "administrative service" and "public service".

Using the comparative legal method, the features of legal regulation of service activities of public authorities in the European Union are analyzed, in particular, it is established that in the EU the provision of services to the public is regulated by both primary and secondary legislation of the European Community, also, the case law is important for the legal regulation of public service activities in the EU.

Methods of analysis and synthesis made it possible to identify the main trends and problems in the field of public service activities in Ukraine, to develop conceptual approaches regarding improving the domestic system of public services and its regulatory support.

Results and discussion

The analysis of domestic and foreign sources devoted to services provided by public authorities shows the diversity of use and interpretation of the concept of service in relation to the functioning of public administration. In addition, the study of the service as a legal structure indicates that there is no unified approach to understanding its essence in Ukraine. Thus, the term "service", which until recently was used in domestic general documents to regulate public relations in the provision of services by the authorities, was used in the phrases "state service", "management service", "administrative service" or "public service", which, in turn, caused the inadequacy of its understanding and required deep study and standardization (Golosnichenko, Popova, 2015, p. 23).

In the European administrative and legal doctrine, the category "service" in relation to the public sector is used in the broadest and very flexible sense; a separate legal institution of administrative services is not singled out. Scientists from EU member states, to denote this phenomenon, use the terms “public services” (Vries, Nemec, Potier, 2018; Powell, Osborne, 2018), “services of general interest” (Reynolds, 2018), “services for citizens” (Fagerlund, Holm, Zanaboni, 2019), “services for business” (Mellors, Pollitt, Radtke, 2005), which, in addition to other public services, include services that in Ukraine are classified as administrative ones. Western founders of the theory of public services focus not on the terminological and legal component, but on the fact that all the results of the activities of public administration bodies (such as decisions, actions, etc.) in relations with private law entities are services.

In Ukraine, due to the peculiarities of the categorical apparatus, the term “state services” was first used instead of the term “public services”, just as the term “public administration” was mistakenly translated as “state administration”. In addition, the terms “public services” and “management services” were in common use in the Concept of Administrative Reform in Ukraine, adopted by the Decree of the President of Ukraine of July 22, 1998. At the same time there was no special distinction between them. Recently, the term "administrative services" has become established in the domestic scientific literature and regulations.

The analysis of scientific views and existing concepts allowed us to define public service as a socially significant activity, a priori clearly regulated by law, which is characterized by direct participation of public authorities and public organizations in its provision and individual nature of service to any person who has this right or applies for the realization of his rights, freedoms and legitimate interests, on the same grounds free of charge or within the prices set by the state. At the same time, we consider administrative service as a specific concept in relation to the generic concept of "public service": a type of public service provided in the manner prescribed by administrative law on the application of a natural or legal person, and the result of which is an administrative act of the subject providing this service, aimed at the implementation and protection of the rights and legitimate interests of this person and / or on the performance of duties specified by law [10,           p. 124-125].

The Institute of Administrative Services in Ukraine was established in 1998 by the Concept of Administrative Reform in Ukraine (Tsyhanov, 2018). However, before the adoption of the Law of Ukraine "On Administrative Services" on September 6, 2012, the legal regulation of the provision of administrative services in our country was carried out, as a rule, at a subordinate level. The adopted Law made it possible to change the ideology of relations between public authorities and private law entities, as well as created conditions for the introduction of centers for the provision of administrative services. However, without the adoption by the Verkhovna Rada of Ukraine of the Administrative Procedure Code of Ukraine and the Law "On the list of administrative services and fees (administrative fees) for their provision" in the field of legal regulation of relations regarding the provision of administrative services there are many gaps, first of all in terms of regulating the procedure for providing such services, determining their payment (free of charge), establishing specific amounts of payment for their provision, and so on. This negatively affects the quality and availability of administrative services, and is one of the main corruption risks in the provision of such services by public authorities.

If we turn to the EU experience in the implementation of the theory of public services, it should be noted that European experts put a broader meaning in the content of the concept of "public services" than in the Ukrainian doctrine is put in the concept of "administrative services", namely: public services - any services, the provision of which is of public (general) interest. The search for a single interpretation of the term "public services" in European administrative law, which took place in the early 2000s in the context of the discussion of the White Paper on Services and the adoption of the Services Directive, caused the division of these services into two types - “services of general interest” and “services of general economic interest”- which are vital for society as a whole, as they significantly impact the quality of life of people and are necessary for social, economic and regional cohesion in Europe. Services that cannot be provided on a commercial basis within a market competition are considered public.

In particular, in the French doctrine of administrative law, public services are divided into so-called administrative public services, the provision of which is governed by public law, and economic public services, which are governed by private law (Seerden, Stroink, 2002, p. 61). Accordingly, in France, the functioning of health care institutions, educational institutions, justice, police and even prisons is understood as an activity of providing public services, with the possibility of their creation on a private basis (Isakov, 2014, p. 80).

In the EU, the provision of services to the public is so important that it is governed by both primary and secondary legislation of the European Community, including Articles of the Treaty on European Union and the Treaty on the Functioning of the European Union, a separate Protocol N 26 thereto (“On Services of General Interest”), as well as several Directives, the Charter of Fundamental Rights of the European Union, etc.

In addition to these regulations, a significant role in regulating the activities of public administration both in general and in the provision of public services is played by the so-called EU case law, namely: the decision of the European Court of Justice (European Court of Justice), the European Court of Human Rights and other judicial authorities of EU member states. In this regard, it should be noted that according to the Information Letter of the Supreme Administrative Court of Ukraine of 18 November, 2014 N 1601/11/10 / 14-14, the legal positions formulated in the decisions of the European Court of Justice can be taken into account by the administrative courts of our state as an argument, considerations regarding the harmonious interpretation of the national legislation of Ukraine in accordance with the established standards of the legal system of the European Union, but not as a legal basis (source of law) for the regulating of disputed relations (Information letter, 2014). Thus, despite the fact that the decision of the European Court of Justice is not a source of law in Ukraine, the use of progressive case law of the EU Court to improve Ukrainian legislation is necessary, in particular, regarding the procedure for the adoption of administrative acts (resulting from the provision of administrative services) and the responsibility of authorities and officials for damage caused by improper provision of administrative services. At the same time, in accordance with the provisions of Art. 17 of the Law of Ukraine "On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights" of February 23, 2006 N 3477-IV, the judgment of the European Court of Human Rights is a source of law in Ukraine.

Thus, the case law of the European Court of Justice and the European Court of Human Rights (in particular, provisions on the possibility of judicial review of acts of all administrative bodies that affect or may affect the rights or obligations of third parties; prohibition of substitution by judicial bodies of powers of administrative bodies; State liability for damage caused to individuals by administrative bodies; the right to "legitimate expectations" of individuals in relations with public administration bodies, that the decision of such a body to grant rights to an individual will not be revoked or withdrawn by the same body, etc.) is important for legal regulation of public service activities as in EU member states and in Ukraine (Мykhailiuk, 2015/1, p. 116-117).

It should also be noted that the European Commission (2011) has approved Standards for the quality of services of general interest             ("A Quality Framework for Services of General Interest in Europe"). These Standards distinguish between related concepts used in EU law to denote the scope of public services. Thus, the term "services of general interest" is used, which refers to services provided by public authorities of EU member states to satisfy the general interest, which is the subject of special public service obligations. This term covers services related to both economic and non-economic interests, although the latter do not fall under the legal regulation of EU law (Мykhailiuk, 2015/2, p. 40).

Based on the analysis of national legislation of EU member states, it can be concluded that the right to receive services of general interest is contained in the constitutional acts of many EU countries, but there are not any separate laws that would regulate only the sphere of administrative services, unlike Ukraine, in national law of EU countries (Мykhailiuk, 2015/1, p. 115).

Usually, the legal regulation of the provision of public services in the EU is carried out by legislation that extends its scope to the full range of administrative and procedural relations, including the scope of these services. For example, in Germany, Austria, Switzerland there are laws on administrative procedure, in Finland - the Act on Administrative Procedures, in the Netherlands - the Act on General Administrative Law, in Sweden - the Law on Public Administration, in Poland - the Code of Administrative Proceeding, in the Czech Republic - the Code of administrative procedures, in Lithuania - the Law on Public Administration, etc.

In developed democracies, the ideology of public administration as a system aimed at providing services to the population is set out in special regulations, such as: "Charter of Citizens" (UK), "Charter Marianne" (France), "Charter of Civil Servants" (Italy ), "Quality Assurance Initiatives" (Canada), "Public Service Quality Charter" (Portugal), "Client Charter" (Belgium), etc. The introduction of public service standards together with the system of indicators and tools for measuring the level of implementation of the established standard in the EU is considered practical implementation by public authorities of the constitutional right of citizens to receive public services of the same level and quality (Meltiukhova, Korzhenko, Didok, 2010, p. 18).

In addition, in most European countries there are regulations that supplement the basic laws in the field of public services and detail the activities of public authorities in terms of their relationship with individuals and legal entities (Bukhanevych, 2014, p. 121). In particular, France has a law "On measures to improve relations between the administration and the public and certain provisions of the administrative social and financial order", which is a fundamental document in the formation of criteria for determining the amount of public service fees. Thus, according to Art. 15 of this law, the administration must ensure that amounts of administrative fees are set on a non-discriminatory basis, and their cost does not exceed the cost of administering the fee, production and provision of information, as well as compensation provided by law (La Charte Marianne 2013, p. 15).

It should also be noted that in the EU countries there are processes of decentralization and delegation of greater decision-making rights to local governments. In accordance with this, the number of public services provided at the central level of public administration is reducing, and, accordingly the number of services provided at the level closest to the population, namely by local governments, is increasing. At the same time, the main criterion of rational decentralization of public service activities is the highest quality of public service, and the main principle - subsidiarity, which determines the lowest optimal limit of government intervention into local affairs (Meltiukhova, Korzhenko, Didok, 2010, p. 10]. Thus, a characteristic feature of the new EU member states (such as Poland, the Czech Republic, Hungary) is the provisions of the laws "On local authorities", which stipulate that local governments are able to solve problems of local importance, including - the issue of meeting the needs of the population by organizing and financing the provision of municipal services (Bukhanevych, 2014, p. 121). Thus, normative legal acts adopted at the local level are of special importance for the legal regulation of the provision of public services in most EU member states. Accordingly, each local government provides such services taking into account local characteristics, which provides the best way to meet the needs of residents of a particular municipality. It should be noted that increasing the independence of local governments, including the provision of public services to the population, is supported in the European legal space, in particular in the European Charter of Local Self-Government, ratified by the Law of Ukraine of 15 July, 1997 N 452/97-VR, Council of Europe Reference Framework for Regional Democracy of 17 November 2009, Recommendations on “The financial resources of local authorities in relation to their responsibilities: a litmus test for subsidiarity” N 79 at 2000 and other EU regulations.

Conclusions

Systematic, radical reform of Ukrainian administrative law is an urgent need of life, which is organically connected with the European integration choice of our state. The essence of such reform is to ensure a fundamental change in the social role and purpose of this branch of law in regulating the attitude of the state to the needs and interests of each person, in the introduction of human-centric ideology of administrative law.

The analysis of domestic and foreign sources devoted to services provided by public authorities shows the diversity of the use and interpretation of the concept of service regarding the functioning of public administration. In European administrative law, the concept of administrative services does not occur, and to denote this phenomenon, scientists in EU member states use other concepts, in particular "public services", which include a broader meaning than in Ukrainian theory. 

In the EU, the provision of services to the public is regulated by both primary and secondary legislation of the European Community. However, the supranational level of EU legislation establishes only the general provisions and fundamental rights of citizens with regard to services of general interest. At the national level in the EU member states, attention is paid to the regulation of administrative procedures in general, but local regulation of the provision of public services within each municipality is important. At the same time, the sources of legal regulation of the provision of these services in the EU are characterized by the following features: the absence of a codified legal act that would regulate public services of non-economic interest; the impact of judicial practice on the legal regulation of relations between public administration bodies and citizens; significant attention is paid to improving the quality of public services and citizen participation in decision-making by the authorities [27, p. 27]. At the same time, "unwritten rule", which is formed by court decisions of the European Court of Justice and the European Court of Human Rights, is important for the legal regulation of public service activities not only for EU member states but also for our country.

In Ukraine, without the adoption of the Law (Code) on Administrative Procedure, as well as legislation on fees for administrative services (administrative fees) in the field of public service activities, there are many gaps, which negatively affects the quality and availability of administrative services, and is one of the main corruption risks in the provision of such services by public authorities. In addition, it is urgent to expand the powers of local governments to ensure the provision of quality public services to the population.