AdmInistrative Law (part I)

Transcript AdmInistrative Law (part I)

ADMINISTRATIVE LAW

(PART I)

Class: 3

GENERAL PRINCIPLES OF EU ADM. LAW

General principles of EU adm. law do not cover any specific rule of the Member States’ adm. law. They apply to the Member States’ legal system. 2.

General principles of administrative law follow logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will. 3.

EU principles are intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule.

General principles cannot exist without a transparent legal system, the main components of which are:

a clear set of laws that are freely and easily accessible to all, 2.

strong enforcement structures, 3.

an independent judiciary to protect citizens against the arbitrary use of power by the state, individuals or any other organization.

Features:

general principles of the EU administration have been developed by the European Court of Justice some of them are expressly enshired in EU law some of them are aplicable not only to administrative actors of the EU but also to all authorities (both of the EU and of its Member States) some of the principles provide for the basis for efficient and fair administration (e.g. principle of good administration, data protection, acting within power, reasonabless, and good faith) they operate as guarantee for the individual against arbitrary decisons by imposing on the administration a duty to provide reason and through the protection of individual rights



Due to the art. 2 TUE ”EU is founded on the values of

respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”  These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

the democracy principle and the rule of law protection of fundamental rights: principles of equal treatment and non-discrimination 3.

legal and institutional transparency legal certainty and legitimate expectations good administration the right of defence

An exhaustive list of general principles

The democracy principle and the rule of law

Both principles can be considered as foundational constitutional principles from which other principles of EU adm. law and rules emanate

The democracy principle:

article 6 TUE: EU is foundend on the democracy principle on the democracy principle are based inter alia contains and controls upon administrative action Member States of the EU are democratic and thus democracy principle belongs to the general domestic principles of these countries

The democracy principle

Articles 9 – 12 TUE (provide some – indicative – bur certainly incomplete – guidance as to its content):

the principle of equality of citizens and the concomitant principle of equal treatment (article 9 TUE) 2.

representative democracy as effected directly through the European Parliament and indirectly through the European Council and the Council (article 10(1)-(2) TUE) 3.

participation, and the openess of Union decision-making and its closeness to citizens (article 10(3) TEU) 4.

the positive role of political parties (article 10(4) TUE) 5.

opportunities for publication and exchange of views of EU policy (article 11(1) TEU)

the existence of open and transparent institution engaged in dialoque (articles 11(1) TEU) 7.

conduct of consultation by the Comission (article 11(3) TEU) 8.

the avaibility of citizen initiative (article 11(4) TEU) 9.

the active contribution of national parliaments to the functioning of the Union, aided by inter alia information for the institution and provisions of draft legislative acts (article 12 TEU)

The democracy principle includes also the key elements of representation and the avaibility of mechanism for this to be achieved, in particular through elections and voting:

*the role of directly elected parliamentary legislatures is now emphasized in EU law through articles 10(1)-(2) and 12 TEU

The rule of law

EU is based on the rule of law:

the rule of law is a foundation of European integration the rule of law is the essential basis of European administrative law 3.

the rule of law is established in article 2 TEU: Article 2 TEU establishes the rule of law as an essential basis of the EU. Moreover, the second sentence of the article 19(1) TEU provide that the European Court of Justice ’shall ensure that the interpretation and application of the Treaties the law is observed’

there isn’t one definition of the rule of law the rule of law can be understood as interpretive concept in most contexts of the exercise of public powers in the EU and in its Member States. It containts both elements which impact primarily on legislative institution and other which related directly to administrative functions due to the rule of law: the organs of the EU and their action are subject to control as to wheter they are in conformity with the Treaties and other laws binding upon them administrative actors must act within power and only for a proper purpose

The rule of law was considered many times by the European Court of Justice:

The principle of the rule of law finds application in the legal system of the EU, and also established the context entails for persons amenable to EU law the right to challenge the validity of regulations by legal action, that principle also imposes upon all persons subject to EU law the obligation to acknowledge that regulations are fully effective so long as they have not been declared to be invalid by a competent Court.

Case 294/83 Les Verts v Parliament [1986] ECR 1339, para 23; in Granaria

Principle of legality

The public administration must act under and within the law, wheter as contained in primary and secondary legislation or in the jurisprudence of competent courts.

This requirement includes a number of specific, overlapping elements:

acting within power and the doctrine ultra vires acts; 2.

correct exercise of discretion 3.

acting in a good faith and avoidance of an improper purpose 4.

acting in conformity with legally mandated procedures, including the conduct of enquiries, granting a right to a hearing for affected parties (in conformity with the right of defence), enabling participation of the public where required, and providing reason for decisions; and 5.

responding to justified individual claims (for example, punctual consideration of application, conduct of all necessary enquiries, provision of information)

2. Protection of fundamental rights

EU is based on the principle of the protection of fundamental rights protection of fundamental rights can be found in article 2 TEU and in article 6 TEU moreover, article 3 TEU states that the Union commits itself to the pursuance of certain values, including fundamental rights, even beyond the borders of the EU fundamental rights are declared in the European Convention on Human Rights and in the Charter of Fundamental Rights of the European Union

Principles of equal treatment and non-discrimination

Principles of equal treatment and non-discrimination:

the principle of non-discrimination in the EU finds the basis not just in the overarching principle of the protection of human rights 2.

the legal regulation of discrimination must always rely on the intersection of two critical components (or vectors): a) the establishment of an unlawfull basis for a distinction between people b) the specification of some societal context in which the application of that unlawfully based distinction is regulated

ASPECTS OF THE PRINCIPLE OF NON-DISCRIMINATION

General principle of equality The principle of non-discrimination in the narrow sense This aspect applies to protect against unfounded distinctions between any groupings of persons without any prior definition of the grounds and categories of discrimination subject to regulation.

This aspect relies on a usually strictly definied list of prohibition or regulated categories or criteria of discrimination for its operation Other name: the principle of non arbitrariness

The general principle of equality

The general principle of equality:

has a long tradition and is now recognizes in all Member States as a political prerequisite in democratic states and as a judicial act adopted by the legislative authority b.

its function is to ensure not only formal but also substantive equality by preventings public authorities from engaging in arbitrary action and thereby causing unjustified differential treatment c.

this principle covers both the arbitrary or unjustifies unequal treatment of equals and the equal treatment in unequal circumstances, independently of the existence of any special prohibition of discrimination of the EU law d.

is applied both to the EU inself in its treatment of individuals on of the Member States, and to the Member States in their own implementation of the Treaties and EU secondary law

Good administration

1. The notion of good administration in the legal system of the EU can be regarded as both a general principle of law and a fundamental right:

it is perhaps best understood as a frameworks concept drawing together a range of rights, rules, and principles guiding administrative procedures with the aim of ensuring procedural justice, public administrative adherence to the rule of law, and sound outcomes from administrative procedures b.

the principle can also be linked to certain other concept including those of ‘good governance’ and ‘administrative governance’, and certain related elements including administrative efficiency, effectiveness, and economy, touched upon earlier

Right to good administration: substance and limitations

The right to good administration, as defined in Article 41 CFR, essentially codifies and summarizes rights and principles found either in other Treaty provisions of the TEU and TFEU or in the case law of the ECJ.

In full, the provision states:

1. 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: (p.194) 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 reason for its decisions.

3. Every person has the right to have the Union make good any damage caused by its institution 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 institution of the Union in one of the languages of the Treaties and must have an answer in the same language.

 An important aspect of this codification of the particular constituent rights to good administration is that their character as subjective rights of individuals is recognized. Failure to comply with the principles of good administration may, in cases of sufficient seriousness of the breach, result in a manifest error of assessment and thus lead to an annulment of a decision due to its illegality.

 Individual rights, in those cases may arise as entitlements to damages for violation of procedural principles.

The European Code of Good Administrative Behaviour

 The Code was proposed by the European Ombudsman in 1999 to the European institutions, bodies and agencies. It was intended as a blueprint for the adoption of their own codes of conduct, which would contribute to improve standards of good administration as well as the relationship between the European administration and the public.

 The approval by the European Parliament in 2001 enhanced its political legitimacy, and the association with Article 41 of the EU Charter of fundamental Rights pointed the way to the Code’s possible constitutional relevance.

 “the Code is intended to explain in more detail what the Charter’s right to good administration should mean in practice”

The Code, the Charter and a “European Administrative Law”: Intertwined Histories Originally, the Code had three main goals:

It intended to concretise the rules and principles against which the Ombudsman could assess cases of maladministration, provide a guide for the staff of Community institutions and bodies regarding their relationships with the public, as well as to inform citizens about “their rights and the standards of administration they may expect” Early on, the Code also became associated to the right to good administration enshrined in Article 41 of the EU Charter of Fundamental Rights.

The decision to adopt the Charter had been taken in the Cologne European Council in June 1999 and, arguably, the European Ombudsman saw here an opportunity to strengthen the relevance of the relationships between the European administration and the public.

By March 2000, the Commission had approved a draft code that, in the Ombudsman’s view, did not comply with his recommendations; the Council and the European Parliament had been receptive to the Ombudsman’s initiative but had failed to comply with these recommendations; and only two agencies had followed the Ombudsman’s recommendations on this matter.

Given these circumstances, in addition to his proposal of including a right to good administration in the Charter, the Ombudsman also saw fit to change his strategy: the rules of administrative behaviour should be adopted under the form of a European administrative law, a regulation.

In his speech before the Convention, the Ombudsman reinforced this recommendation, stressing that “to put the principle [of good administration] into practice, it would be necessary to enact a regulation on good administrative behaviour and another on access to information and to documents”.

Good Administration: Right, Principles or Standard? Grappling the Meaning of a Concept

 Before being proclaimed as a fundamental right, good administration had been recognised by the European Courts as a general principle of law.

 Different scholars have underlined the uncertain and ambiguous meaning of this principle. In particular, they have highlighted that, as a rule, it is not treated autonomously in the Courts’ case law, rather it is often used in association with other principles, rights and duties to withdraw specific legal consequences from their combined use.

 One may sustain, on the basis of the case law, that the core of the principle is the duty of careful and impartial examination of the factual and legal circumstances of each case.

Good administration is a complex, multifaceted concept. One may sustain that it characterises a model of administration which purpose is to pursue properly and efficiently the public interest while being respectful of the rights and interests of the persons with whom it relates, as well as to be at the service of the community in a way that fosters trust and acceptance for administrative actions. In this sense, good administration has an important programmatic meaning, which is present when the Courts find that compliance with certain rules, principles or rights are “in conformity with the interests of good administration”, “[meet] the requirements of good administration”, or, more restrictively, are “in the interests of sound administration of the fundamental rules of the Treaty”

Now, the fulfilment of these purposes of good administration requires a combination of legal and non-legal rules. This has been pointed out by Advocate General Slynn in his often quoted opinion in Tradax and has been corroborated by the 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) or that rules directed at ensuring good administration do not necessarily constitute procedural guarantees on which individuals may rely (Aseprofar and Edisa).

One may characterise good administration as being composed of different interconnected layers:

1.firstly, it comprises procedural guarantee that are primarily directed at protecting the substantive rights of the persons dealing with the European administration, whose infringement is capable of giving rise to a legal action and may ultimately lead to the annulment of the vitiated act or to a compensation for damages.

This is the common denominator of Article 41 of the Charter, which, to the extent that it coins good administration as a public subjective right, arguably delimits the segments of good administration that can primarily be perceived as such.

2. Secondly, good administration encompasses legal rules that structure the exercise of the administrative function primarily by reference to the objective interests of a proper application of the Treaty rules and to the definition of the public interest (e.g. the duty of careful and impartial examination to the extent that it has a broader scope than the handling of personal affairs). These rules also function as procedural guarantees, but their primary function is to structure the exercise of discretionary power in line with the correct pursuance of the public interest in each case and to ensure control over acts of the administration.

Thank you for your attention!

The presentation is based on:

Administrative law and Policy of the European Union, Hoffman H.C.H. , Rowe G.C., Türk A., Oxford University Press 2012.

Mendes J., Good administration in EU law and the European Code of Good Administrative Behaviour, European University Institute, Florence, Department of Law, EUI Working Paper Law 2009/09.