Limitations to the Competence of Civil Servants in Denmark

by Erik Harder

It is a generally admitted principle that no person taking part in deliberations on any administrative matter should have a personal interest in their outcome, and the various systems of Administrative Law provide appropriate safeguards. But it is easier to formulate principles than to state precisely when officials should be precluded from acting.

The mere possibility of bias is insufficient to compel an official to step aside, since the advantage of keeping to normal procedures may outweigh the risk involved. Administrative practice provides for particular interests to be represented in some cases. In other terms, an elected or nominated official is not deemed incompetent to defend the interests he represents. The method of replacing one official by another is used even more widely than necessary, and the possibility of conflicting interests thus practically eliminated. But administrative practice is not a sufficient guide for deducing legal rules.

Incompetence should be invoked only when insuperable difficulties arise, for it should be kept in mind that no rule can be purely negative. The problem is entirely one of ensuring impartial treatment, but it is not always administratively feasible to refer a matter to an alternative agency. In practice, when a case of personal incompetence occurs, the problem is often solved by reference to the immediately superior authority. A prerequisite for an appeal on the ground of incompetence is consequently that the availability of an alternative method of deciding the case should be demonstrated.

A number of instances are quoted, illustrating principles and practice, and varying in each case with the degree and nature of the conflicting interest. The problem of preconceived opinion in a matter sub judice is also examined.