GOOD ADMINISTRATION IN EUROPEAN ADMINISTRATIVE LAW

Mian Ali HaiderL.L.B., L.L.M (Cum Laude) U.K.

Good administration in European administrative law

Good administration in European administrative law is both:

a general principle (comprising legal and not-legal rules) and a fundamental right (a public subjective right of fundamental nature)

That is why good administration is described as: • a notion with a double status • an umbrella notion (a general principle of good administration being the umbrella principle, and a right to good administration being the umbrella right) • an indeterminate notion • an open-ended notion • a framework concept and so on.

H.C.H. Hofmann, G.C. Rowe, A. H. Turk in Administrative Law and Policy of the EU explain good administration as „a framework concept drawing together a range of rights, rules, and principles guiding administrative procedures with the aim of: • ensuring procedural justice, • public administration adherence to the rule of law, and • sound outcomes from administrative procedures”.

They justly stress that the principles of good administration have developed in close connection with: the precept of procedural justice and the principle of the rule of law.

Good administration in European administrative law

The notion of good administration can be linked to certain other concepts including:

• sound administration• proper administration• good administrative behaviour• good administrative practice(s)• good governance• good public governance• good public management• administrative efficiency• administrative effectiveness• administrative efficacy• administrative economy• (administrative) fairness• (good) administrative service• administrative culture of service• open, accountable and service-minded administration• open, efficient and independent (European) administration• open, accessible and properly run administration

Good administration in European administrative law

Good administration in European administrative law

Council of Europe, Committee of Ministers Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities (adopted on 28 September 1977)

The following principles apply to the protection of persons, whether physical or legal, in administrative procedures with regard to any individual measures or decisions which are taken in the exercise of public authority and which are of such nature as directly to affect their rights, liberties or interests (administrative acts).In the implementation of these principles the requirements of good and efficient administration, as well as the interests of third parties and major public interests should be duly taken into account. Where these requirements make it necessary to modify or exclude one or more of these principles, either in particular cases or in specific areas of public administration, every endeavour should nevertheless be made, in conformity with the fundamental aims of this resolution, to achieve the highest possible degree of fairness.

Right to be heard1. In respect of any administrative act of such nature as is likely to affect adversely his rights, liberties or interests, the person concerned may put forward facts and arguments and, in appropriate cases, call evidence which will be taken into account by the administrative authority.2. In appropriate cases the person concerned is informed, in due time and in a manner appropriate to the case, of the rights stated in the preceding paragraph.Access to informationAt his request, the person concerned is informed, before an administrative act is taken, by appropriate means, of all available factors relevant to the taking of that act.Assistance and representationThe person concerned may be assisted or represented in the administrative procedure.Statement of reasonsWhere an administrative act is of such nature as adversely to affect his rights, liberties or interests, the person concerned is informed of the reasons on which it is based. This is done either by stating the reasons in the act, or by communicating them, at his request, to the person concerned in writing within a reasonable time.Indication of remediesWhere an administrative act which is given in written form adversely affects the rights, liberties or interests of the person concerned, it indicates the normal remedies against it, as well as the time-limits for their utilisation.

Good administration in European administrative law

The Council of Europe has continued to issue principles related to good administration. See e.g.:

Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities

Recommendation No. R (87) 16 on administrative procedures affecting a large number of persons

Recommendation No. R (2000) 10 on codes of conduct for public officials

Recommendation No. R (2007) 7 on good administration

Good administration in European administrative law

Recommendation CM/Rec(2007)7 of the Committee of Ministers to member stateson good administration (adopted on 20 June 2007)

The Committee of Ministers […] Having regard to Recommendation 1615 (2003) of the Parliamentary Assembly, which calls on the Committee of Ministers to draft a model text for a basic individual right to good administration and a single, comprehensive, consolidated model code of good administration, based in particular on Committee of Ministers’ Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour (2001), in order to define the basic right to good administration, and therefore facilitate its effective implementation in practice; […] Considering that […]

cases of maladministration, whether as a result of official inaction, delays in taking action or taking action in breach of official obligations, must be subject to sanctions through appropriate procedures, which may include judicial procedures;

good administration must be ensured by the quality of legislation, which must be appropriate and consistent, clear, easily understood and accessible;

good administration implies that services must meet the basic needs of society; good administration in many situations involves striking an appropriate balance between the rights

and interests of those directly affected by state action on the one hand, and the protection of the interests of the community at large, in particular those of the weak or vulnerable, on the other, and recognising that procedures intended to protect the interests of individuals in their relations with the state should in certain circumstances protect the interests of others or the wider community;

good administration is an aspect of good governance; that it is not just concerned with legal arrangements; that it depends on the quality of organisation and management; that it must meet the requirements of effectiveness, efficiency and relevance to the needs of society; that it must maintain, uphold and safeguard public property and other public interests; that it must comply with budgetary requirements; and that it must preclude all forms of corruption;

Good administration in European administrative law

good administration is dependent on adequate human resources available to the public authorities and on the qualities and appropriate training of public officials; the administration exercises its prerogative of public power to carry out the tasks required of it; that these powers might however, if used in an inappropriate or excessive manner, infringe the rights of private persons; it is desirable to combine the various recognised rights with regard to the public authorities into a right to good administration and to clarify its content, following the example of the Charter of Fundamental Rights of the European Union (2000); the requirements of a right to good administration may be reinforced by a general legal instrument; that these requirements stem from the fundamental principles of the rule of law, such as those of lawfulness, equality, impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy and transparency; and that they provide for procedures to protect the rights and interests of private persons, inform them and enable them to participate in the adoption of administrative decisions.

Recommends that the governments of member states: – promote good administration within the framework of the principles of the rule of law and democracy – promote good administration through the organisation and functioning of public authorities ensuring efficiency, effectiveness and value for money[…]– promote the right to good administration in the interests of all, by adopting, as appropriate, the standards set out in the model code appended to this recommendation, assuring their effective implementation by the officials of member states and doing whatever may be permissible within the constitutional and legal structure of the state to ensure that regional and local governments adopt the same standards

Good administration in European administrative law

CM/Rec(2007)7 Principles of good administration

Art 2 – Principle of lawfulness

Art 3 – Principle of equality

Art 4 – Principle of impartiality (In 1999 the OECD Public Management Committee launched a survey on managing ethics in the public service in all OECD countries. Impartiality/neutrality/objectivity was the most frequently stated core public service value in the OECD countries)

Art 5 – Principle of proportionality (comment: the principle of proportionality is one of the most useful tools to control administrative decisions and especially administrative discretion)

Art 6 – Principle of legal certainty

Art 7 – Principle of taking action within a reasonable time limit

Art 8 – Principle of participation

Art 9 – Principle of respect for privacy

Art 10 – Principle of transparency

Good administration in European administrative law

Good administration in European administrative law

Principles of Good Administration in the Member States of the European Union

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Case Law of the European Court of Justice (ECJ) and European Court of First Instance (ECFI)

The European Courts have stressed the importance of procedural guarantees as a counterweight to administrative discretion. ECJ has further recognised an array of general administrative principles, e.g.:• the general principle of administration through law• the principle of non-discrimination (comment: the principle of non-discrimination is based on the assumption of equal value of all human beings, which is a corner stone in most legal systems)• the principle of proportionality• the principle of legal certainty• the protection of legitimate expectations• the right to a hearing before an adverse decision is taken by a public authorityThe obligation to provide reasons for decisions is laid down in the Treaty as Art 253 (ex Art 190): „Regulations, directives and decisions (…) shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty” (today Art 296 TFUE – JS). The ECJ and the ECFI have developed this article into a fundamental right for individuals thus creating an unwritten administrative law through its case law. Such reasoning of ECJ and ECFI might be interpreted as an evolution away from a French-inspired administration-centered tradition towards a more individual-oriented view of community administrative procedures.

Good administration in European administrative law

Good administration in European administrative law

Charter of Fundamental Rights of the European Union (CFR) proclaimed by the European Parliament, the Council and the Commission on 7 December 2000 (initially without binding legal force, but today – through Art 6(1) TEU – the CFR has got the same status as the Treaties and therefore good administration under its Art 41 took on a double status of a fundamental right and a general principle of EU law; Art 41 draws the boundaries of good administration as a public subjective right).

Article 41 Right to good administration1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.2. This right includes* (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;(c) the obligation of the administration to give reasons for its decisions.3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

Nota bene the above aspects of the right to good administration can be find in the following provisions of TFEU: Art 24(4), Art 108(2), Art 296(2), and Art 340.* Rights and obligations are enumerated in non-exhaustive manner; in other words, good administration in Art 41 is a general category under which may be subsumed a whole set of subjective rights intended to limit arbitrary administrative conduct in the Union. In other words, a category of rights rather than as a right in its own.

Good administration in European administrative law

Differences between the right to good administration and

the principle of good administration under the CFR

The Court of First Instance in Case T-193/04 Tillack v Commission [2006] ECR II-3995 held that: [T]he principle of sound administration, which is the only principle alleged to have been breached in this context, does not, in itself, confer rights upon individuals (Case T‑196/99 Area Cova and Others v Council and Commission [2001] ECR II‑3597, paragraph 43), except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), which is not the case here, para 127.

The other difference relates to the limits of the protection offered. Article 41 is applicable only to activity of the EU’s institutions, bodies, offices and agencies. This is an exception to the specification of the general field of application in Article 51(1) CFR, according to which the provision of the CFR are also addressed to the Member states when ‘implementing Union law’. Therefore the European courts referring to good administration as a general principle of EU law enable these principles to be invoked also against Member States when acting ‘within the sphere of Community law’ (Case C-260/89 ERT v DEP [1991] ECR I-2925) and esp. in line with Lisrestal case law in the area of cooperative administration (Case T-450/93 Lisrestal and others v Commission [1994] ECR II-1177).

Good administration in European administrative law

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 27 OCTOBER 1983

in Case 64/82 TRADAX v COMMISSION [1984] ECR 1385-6

[Nor do I consider, as is submitted, that there is any generalized principle of law that what is required by good administration will necessarily amount to a legally enforceable rule. To keep an efficient filing system may be an essential part of good administration but is not a legally enforceable rule. Legal rules and good administration may overlap (e.g. in the need to ensure fair play and proportionality); the requirements of the latter may be a factor in the elucidation of the former. The two are not necessarily synonymous. Indeed, sometimes when courts urge that something should be done as a matter of good administration, they do it because there is no precise legal rule which a litigant can enforce].

This opinion has been corroborated by Courts, for example, when they consider that regrettable conduct is liable to breach the principle of good administration but does not vitiate the legality of a decision (ABB Asea Brown Boveri Ltd vs Commission [2002] II-1881, para. 104) or that rules directed at ensuring good administration do not necessarily constitute procedural guarantees on which individuals can rely (Aseprofar and Edifa vs Commission [2005] ECR II-3449, para. 56).

Good administration in European administrative law

Draft Charter of Fundamental Rights of the European Union Brussels 11 October 2000 Note from the Praesidium

Text of the explanations relating to the complete text of the Charter. These explanations have been prepared at the instigation of the Praesidium. They have no legal value and are simply intended to clarify the provisions of the Charter.

ExplanationArticle 41 is based on the existence of a Community subject to the rule of law whose characteristics were developed in the case law which enshrined inter alia the principle of good administration [...].

Cologne European Council 3-4 June 1999 Conclusions of the Presidency Annex IV – European Council Decision on the Drawing Up of A Charter of Fundamental Rights of the European Union

Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union's citizens. […]In the view of the European Council, a draft of such a Charter of Fundamental Rights of the European Union should be elaborated by a body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments. Representatives of the European Court of Justice should participate as observers. Representatives of the Economic and Social Committee, the Committee of the Regions and social groups as well as experts should be invited to give their views. Secretariat services should be provided by the General Secretariat of the Council. This body should present a draft document in advance of the European Council in December 2000. […]

Good administration in European administrative law

EXPLANATIONS RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS OJ 2007/C 303/02These explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union. They have been updated under the responsibility of the Praesidium of the European Convention, in the light of the drafting adjustments made to the text of the Charter by that Convention (notably to Articles 51 and 52) and of further developments of Union law. Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter.

Explanation on Article 41 — Right to good administrationArticle 41 is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined inter alia good administration as a general principle of law (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case-law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589) and the wording regarding the obligation to give reasons comes from Article 296 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 298 of the Treaty on the Functioning of the European Union for the adoption of legislation in the interest of an open, efficient and independent European administration).Paragraph 3 reproduces the right now guaranteed by Article 340 of the Treaty on the Functioning of the European Union. Paragraph 4 reproduces the right now guaranteed by Article 20(2)(d) and Article 25 of the Treaty on the Functioning of the European Union. In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties.The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 of this Charter.

Comment: Good administration can therefore be seen as the administrative law equivalent to the constitutional notion of the ‘Community of law’ concept proclaimed by the ECJ in Case 294/83 Les Verts v Parliament [1986] ECR 1339.

Good administration in European administrative law

Good administration in European administrative law

The European Code of Good Administrative BehaviourProposed by European Ombudsman and approved by the European Parliament

on 6 September 2001 The Ombudsman: the code is intended to explain in more detail what the Charter’s right to good administration should mean in practice.While claiming to explicate the content of the right to good administration, the code displays rather an eclectic set of rules and as a result three different layers of good administration can be identified in the code’s 27 articles: It includes a codification of general principles of European administrative law (legality, non-discrimination, proportionality, absence of abuse of power, respect for legitimate expectation, transparency). It restates procedural and substantive rights and duties which result from European law. Some of these are fundamental rights enshrined in the CFR (data protection, the right to complain to the European Ombudsman), some correspond to the rights listed in Art 41 of the CFR, others correspond roughly to long-standing primary rules of European law (notification of decisions). It embraces rules of administrative practice which are directed by the idea of providing a good service to the public and in principle don’t form judicially enforceable rights or rules (the duty to advise the public on handling of cases, to act courteously, to acknowledge the receipt of letter or complaint and provide an information on who is dealing with the matter, to transfer a file to competent services, to indicate the possibility of appeal and so on).

Good administration in European administrative law

The European Code of Good Administrative Behaviour

Article 4 LawfulnessThe official shall act according to law and apply the rules and procedures laid down in EU legislation. The official shall in particular take care to ensure that decisions which affect the rights or interests of individuals have a basis in law and that their content complies with the law. [Nb. the principle of lawfulness is also given expression by the requirements pursuant to Arts 5 to 9 of the Code].

Emphasis of the principle of lawfulness of administrative activity recalls that the principle of good administration emanates from the rule of law.

The rule of law entails: the submission of official action to the rules and procedures laid down in EU legislation the requirement of having a legal basis for action, esp. for decisions which affect the rights or interests of

individuals

This approach reflects the dual approach in the legal systems of several Member States. E.g. in Poland Article 7 of the Constitution of the Republic of Poland reads: The organs of public authority shall function on the basis of, and within the limits of, the law. In German constitutional and administrative law these two aspects of the rule of law are emphasized as the requirement of having a legal basis for an action by the administration (Vorbehalt des Gesetzes) and the requirement of acting according to law (Vorrang des Gesetzes).

Good administration in European administrative law

Good administration in European administrative law

The following rights and obligations are, as all part of Art 41 and Art. 42 in the Charter of Fundamental Rights of the Union and should naturally be seen as a central part of the concept of good administration.• to have ones affairs handled impartially and fairly and within a reasonable time (Art 41.1)• to be heard before any individual measure is taken that would affect the citizen adversely (Art 41.2)• to have access to his or her file, regarding any individual measure that would affect him or her (Art 41.2)• the obligation to state reasons in writing for all decisions (Art 41.2)• the right of access to documents (Art 42).

The following substantive principles are part of the European Code of Good Administrative Behaviour. The following substantive principles were considered minimum substantial requirements for establishing a good administration.• lawfulness (Art 4)• non-discrimination (Art 5)• proportionality (Art 6).

The following obligations are further part of the European Code of Good Administrative Behaviour.• the obligation to be service-minded (Art 12)• the obligation to give an indication of remedies available to all persons concerned (Art 19)• the obligation to notify all persons concerned of a decision (Art 20)• the obligation to keep registers (Art 24)• the obligation to document administrative processes (Art 24).

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Good administration in European administrative law

ConclusionsA core set of principles on good administration is widely accepted among

the Member States of the European Union. The following principles of good administration are embraced by a majority of them:

1. The principles of lawfulness, non-discrimination and proportionality.2. The right to have ones affairs handled impartially and fairly and within a reasonable time.3. The right to be heard before any individual measure is taken that would affect the citizen adversely.4. The right to have access to his or her file, regarding any individual measure that would affect him or

her.5. The right of access to documents.6. The obligation to state reasons in writing for all decisions.7. The obligation to give an indication of remedies available to all persons concerned.8. The obligation to notify all persons concerned of a decision.9. The obligation to be service-minded.

Principles of Good Administration in the Member States of the European Union

Good administration in European administrative law

The interpretation of the principles of good administration will vary between four European traditions of administrative law

The development of administrative law has always been deeply influenced by European history, culture and constitutional contexts and it is important to keep in mind that the subject of this survey, principles and rules of good administration will look different depending on the Member State in question. From the literature, we can infer at least four traditions of administrative law in Europe.

The administration-centered tradition views administrative law as a tool for governments to run an efficient administration. As such, it is designed for the construction of efficient administration and implementation of policies.

The individual-centered tradition tends to treat administrative law as an instrument for controlling government and protect individuals from infringements of their rights. It views administrative law as the rules that keeps the government within its legitimate boundaries and thus regulates the relationship between the State and the Citizens.

The legislator-centered tradition relies on the legislator to design administrative procedures, often in the form of a very detailed administrative procedure act, or in some cases in the form of constitutional provisions. This represents the German ethos of the Rechtsstaat where the administration is viewed as a mere executant of the law.

The ombudsman-centered tradition is representative of the Scandinavian countries. Characteristic of this more pragmatic tradition is that an independent person, who is often appointed by the parliament, works outside of the executive in order to identify, investigate and recommend solutions to cases of maladministration. In those cases where an Ombudsman has emerged as the primary means of redress for citizens who have suffered injury by the administration, the development of a strong litigation culture has often not taken place.

Principles of Good Administration in the Member States of the European Union

Good administration in European administrative law

Good administration in European administrative law

Other codes intending to steer administrative behaviour and give effect to the principle of good administration

Code of Good Administrative Behaviour for staff of the European Commission in Their Relations with the Public.

Guide to the Obligations of Officials and other Servants of the European Parliament.

Public service principles that should guide EU civil servants (framed by the European Ombudsman in 2012)

Good administration in European administrative law

Good administration in European administrative law

European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union

The European Parliament,–  having regard to Art 225 of the Treaty on the Functioning of the European Union,–  having regard to Art 298 of the Treaty on the Functioning of the European Union,–  having regard to Art 41 of the Charter of Fundamental Rights of the European Union, which provides that the right to good administration is a fundamental right,[…]–  having regard to the Council of Europe's Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration, dated 20 June 2007,–  having regard to the 'Public service principles for the EU civil service' published by the European Ombudsman on 19 June 2012,–  having regard to the survey commissioned by the Swedish Government from the Swedish Agency for Public Management on the principles of good administration in the Member States of the European Union1.  Requests the Commission to submit, on the basis of Art 298 of the Treaty on the Functioning of the European Union, a proposal for a regulation on a European Law of Administrative Procedure, following the detailed recommendations set out in the Annex hereto;2.  Confirms that the recommendations respect fundamental rights and the principle of subsidiarity;3.  Considers that the requested proposal does not have financial implications;4.  Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council, to the European Ombudsman and to the parliaments and governments of the Member States.

Good administration in European administrative law

Recommendation 1 on the objective and scope of the regulation to be adopted

The objective of the regulation should be to guarantee the right to good administration by means of an open, efficient and independent administration based on a European Law of Administrative Procedure.

The regulation should apply to the Union's institutions, bodies, offices and agencies (‘the Union's administration’) in their relations with the public. Its scope should therefore be limited to direct administration.

It should codify the fundamental principles of good administration and should regulate the procedure to be followed by the Union's administration when handling individual cases to which a natural or legal person is a party, and other situations where an individual has direct or personal contact with the Union's administration.

Good administration in European administrative law

Recommendation 3 on the general principles which should govern the administration

The regulation should codify the following principles:

–  principle of lawfulness–  principle of non-discrimination and equal treatment–  principle of proportionality–  principle of impartiality–  principle of consistency and legitimate expectations (The Union's administration shall be consistent in its own behaviour and shall follow its normal administrative practice, which shall be made public. In the event that there are legitimate grounds for departing from such normal administrative practice in individual cases, a valid statement of reasons should be given for such departure. Legitimate and reasonable expectations that persons might have in the light of the way in which the Union's administration has acted in the past shall be respected).–  principle of respect for privacy–  principle of fairness–  principle of transparency–  principle of efficiency and service