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The development of pan-European general principles of good administration by the Council of Europe and their impact on the administrative law of its Member States

Project Leader: Prof. Dr. Ulrich Stelkens
Subject Area: Public Law
Funding: since 2015, funded by "Deutsche Forschungsgemeinschaft (DFG)"

 

The research project on the development of the pan-European general principles of good administration is carried out at the German Research Institute of Public Administration and the German University of Administrative Sciences Speyer. The findings of its ‘first phase’ are published in the book ‘Good Administration and the Council of Europe: Law, Principles, and Effectiveness’ (For further information click here) edited by Ulrich Stelkens and Agnė Andrijauskaitė, released in September 2020. This ‘Speyer project’ examines the development, content, and effectiveness of the written and unwritten standards of good administration drawn up within the framework of the Council of Europe (CoE), i.e. on the basis of the Statute of the Council of Europe (SCoE) and the European Convention on Human Rights (ECHR), the latter forming – besides the SCoE – a sort of ‘second pillar’ of the CoE. We call these CoE standards ‘pan-European general principles of good administration’.

Below, you will find a short summary of the findings of the first phase of the project, including:

  1. An introduction into the meaning and the sources of the pan-European general principles of good administration,
  2. Description of the research methods,
  3. Overall conclusions,
  4. Introduction into the second phase of the project (click here for more information).

       I.            The Sources and Scope of the Pan-European General Principles of Good Administration

The pan-European general principles of good administration, the focus of the ‘Speyer project’, derive from different sources:

  1. The ECHR as well as the (relevant) case law of the European Court of Human Rights (ECtHR), namely the case law ‘labelled’ by the ECtHR itself under the umbrella of ‘good governance’ (since Moskal v Poland);
  2. Other CoE conventions, above all the CoE Conventions on Data Protection (ETS No 108, ETS No 181 and CETS No 223), the European Charter of Local Self-Government (ETS No 122) and the Additional Protocol thereto (CETS No 207) as well as the Convention on Access to Official Documents (CETS No 205), which entered into force on 1 December 2020.
  3. The recommendations of the Committee of Ministers (CM) in the realm of administrative law (the first one being the CM Resolution (77) 31 on the protection of the individual in relation to acts of administrative authorities), which today encompasses all the fields of administrative procedural law, accountability and judicial review (the standards in these fields have been prominently compiled in CM Recommendation CM/Rec(2007)7 on good administration) as well as the status of public officials and the fight against corruption, government liability law, public services and the rights of their users and issues related to the privatisation of those public services.
  4. The resolutions, recommendations and guidelines of the CoE’s other bodies such as the Parliamentary Assembly of the CoE, the ‘Venice Commission’ or the Congress of Local and Regional Authorities.

Today, the pan-European general principles of good administration deriving from these sources encapsulate the entire range of general organizational, procedural and substantive legal institutions meant to ensure a democratically legitimised, open and transparent administration respecting the rule of law. They go well beyond the relationships between the administration and individuals but form – as a coherent whole – a ‘toolbox’ containing legal tools which serve to fight the arbitrary exercise of administrative power, corruption and nepotism, to protect and promote individual rights, and, furthermore, to guarantee an open and transparent administration as well as the effective implementation of democratic policy choices and effective public services. Thus, the pan-European general principles of good administration are (solely) about the ‘limiting function’ of administrative law, i.e. its function to protect individuals from arbitrary power, to legitimise administrative action and to combat corruption, nepotism, and other ‘diseases’ with which even a democratic polity willing to be governed by the rule of law may be infected. Furthermore, a closer look at the different sources of the pan-European general principles of good administration reveals that they are not a loose bundle of various rules in administrative matters but rather form a coherent whole as they build upon each other and as different CoE bodies invoke them in a harmonious and coherent manner. In fact, the organs and other institutions of the CoE and the ECtHR have become increasingly aware that all the conventions, recommendations and other documents of the CoE and the case law of the ECtHR are interdependent and result in an increasingly coherent body of true ‘European administrative law’. The best example of this ‘coherent perception’ of the pan-European general principles of good administration by the institutions and organs of the CoE is the handbook ‘The administration and you’ edited by the CoE (first edition 1996/1997; second edition 2018). Moreover, this handbook as well as the pertinent CM recommendations, the CoE conventions, and the case law of the ECtHR claim to reflect ‘a broad consensus’ among the CoE Member States on the fundamental principles that should govern administrative action and administrative justice despite the differences between their administrative and legal systems.

    II.            Research Methods of ‘Phase 1’ of the ‘Speyer Project’

The main aspiration of ‘phase 1’ of the ‘Speyer project’ was to elucidate if and to what extent the pan-European general principles of good administration shape national administrative legal systems and whether pan-European general principles of good administration have a harmonising effect across its Member States – or if, at least in the area of administrative law, the CoE is only a paper tiger producing norms without any real-life effects. Measuring the effectiveness of the pan-European general principles of good administration means, in a first step, measuring their effectiveness with regard to the CoE Member States which allows to draw conclusions on their overall effectiveness in a second step.

This research endeavour was complex because – in contrast to the European Union – the CoE is not a supranational organisation but an intergovernmental entity. Thus, ‘CoE law’ may only have a harmonising effect on the domestic law of the CoE Member States to the extent to which each of them is willing to adapt its domestic law to ‘CoE requirements’. In the end it is up to each and every Member State (in concreto their legislators, governments, administrations and courts) to make ‘CoE law’ effective by being open to adapt its national (case) law and administrative practices to it. The main question is if and how domestic administrative law is influenced by these principles, and if and how it is ensured that national law which is already compliant with these principles remains that way (bottom up approach).

Therefore, we asked scholars from 28 selected CoE Member States – experts in national administrative law – to analyse the ‘effectiveness’ and (possible) impact of the pan-European general principles of good administration on their respective domestic legal orders and deliver reports thereto. Striving for comprehensiveness would have implied the inclusion of all 47 CoE Member States in the research. However, organisational and financial limitations aside, this approach might not necessarily have delivered a clear overall picture of the effectiveness of the pan-European general principles of good administration within the territory of the CoE. It might as well have distorted the picture without letting us see the wood for trees. Therefore, we focused only on the countries where we expected – by means of an educated guess – to be able to get a realistic and objective assessment of the role that the pan-European general principles of good administration play in the concrete national legal order. Thus, we limited ourselves to including the Albanian, Armenian, Austrian, British, Belgian, Bulgarian, Croatian, Czech, Dutch, Estonian, Finnish, French, Georgian, German, Hungarian, Italian, Latvian, Lithuanian, Norwegian, Polish, Portuguese, Romanian, Serbian, Slovenian, Spanish, Swedish, Swiss, and Turkish perspectives. In the end, we are convinced that we reached a critical mass of Member States for our research, allowing us to extrapolate overall trends.

The country reports delivered by our colleagues may be understood as ‘semi-structured expert interviews’ in terms of the methodology employed by the social sciences but are also the result of (intensive legal scholarly) research on the question of whether, how, and to what extent the pan-European general principles of good administration are embedded within the respective national legal orders. We assumed that there are several paths of reception by which – at least theoretically – a national legislator, government, judge or administrator could ‘receive’ the pan-European general principles of good administration and transform them into elements of national law. The bedrock issue in the preparation of our project was therefore to identify the possible paths of reception by which the pan-European general principles of good administration could find their way into national law. In the end, four such paths were considered worth further exploration:

  1. Reception of the pan-European general principles of good administration through the national legislator;
  2. Reception of the pan-European general principles of good administration through national ‘Codes of Good Administrative Behaviour’ and ‘ombudsprudence’;
  3. Reception of the pan-European general principles of good administration through the application of the European Convention of Human Rights;
  4. Direct application of the pan-European general principles of good administration ‘faute de mieux’ (which refers to the national discussions if unwritten principles of administrative law are recognized as a source of administrative law in a given legal order and how they are ‘found’ by the judge).

Furthermore, we assumed that, if some convincing examples for such a reception in a given domestic legal order can be found, this would allow us to make an overall assessment of the effectiveness or at least of the potential impact of the pan-European general principles of good administration in this legal order. We discussed these ‘paths of reception’ and the general approach of our book with the national experts in two workshops. Together, we worked out methodological issues and a questionnaire that was meant to guide the research, and exchanged ideas regarding the project and insights on national administrative law. Thus, each of the (similarly structured) country reports tackles the level of awareness of the pan-European general principles of good administration, their status in national law, and, furthermore, their pathways of reception and their actual implications on the national legal systems.

The different country reports allowed us, in a second research step, to address the question of the overall effectiveness of the pan-European general principles of good administration in harmonising the national administrative law of the CoE Members States. Firstly, we analysed the interaction between national administrative law and the pan-European general principles of good administration. This mapping provides an explanatory framework for understanding why these principles have different effects in different legal orders, work in different ways – and thus have different ‘modes of operation’ within the national legal orders. Analysing these different modes of operation made it clear that adapting national administrative law to the pan-European general principles of good administration is a process that is at different stages of development in different Member States: the pan-European principles cannot be perceived in a binary manner, that is, as either effective or not effective within a national legal order. They can be effective in the different ‘national laws in the book’ and in the different ‘national laws in action’ to varying degrees.

Finally, the analysis of the different modes of operation of the pan-European general principles of good administration allowed us to construct their normative functions within the CoE framework. This part of our research – as well as the description of the consequences of this specific normative relevance of the pan-European general principles of good administration was in the end a typical ‘scholarly desk study’ in law which gave the opportunity to draw on the results of (1.) research on European Human Rights Law, (2.) research on the ‘European Rule of Law’ and on the problem of ‘rule of law backsliding’ and decline in standards guaranteeing liberal democracy, (3.) research on General International Law (namely on the recent research on Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT)) and (4.) research on EU law implementation – which was helpful because it shed light on the role of the national government, the legislator, the administration and the national judiciary when a State wants (or has) to take up ‘foreign’ political ideas and legal concepts, and transform them into a national political agenda and to put this national political agenda into practice.

 III.            The Main Results of ‘Phase 1’ of the ‘Speyer Project’

As already explained, measuring the effectiveness of the pan-European general principles of good administration means, in a first step measuring their effectiveness with regard to the CoE Member States, which makes it possible to draw conclusions on their overall effectiveness in a second step. A key issue was therefore to elucidate whether, and to what extent, the pan-European general principles of good administration shape national administrative legal systems and whether they have a certain harmonising effect across the CoE Member States. In the light of the analysis of the country reports it became clear that the pan-European general principles of good administration at least are never considered completely irrelevant but, on the contrary, of relevance to different degrees and extents. This was broadly aligned with our expectations.

The aforementioned different ‘modes of operation’ of the pan-European general principles of good administration can be described in a simplified manner as follows. Firstly, the national legislator may use the pan-European general principles of good administration as inspiration or even as ‘model rules’ for national legislation, and transpose the pan-European general principles of good administration into national ‘hard law’ – the ‘law in the books’. Secondly, a legal and factual environment supporting the application of these principles in the day-to-day working of the administration has to be created to implement the pan-European general principles of good administration in the national legal order so that they become a natural part of the ‘law in action’. This is a permanent multi-dimensional task of all State organs. However, the fulfilment of this task by different State actors is most effective when it is actively promoted and coordinated by the government. Thirdly, the pan-European general principles of good administration can serve as standards of national judicial review and national external monitoring of administration and therefore be a tool to enforce good administration.

What we did not expect when designing our project was to what extent assessing the effectiveness of the pan-European general principles of good administration within the different legal orders would shed light on the differences and specificities of national administrative law, in particular the national (often more implicit than explicit) conceptions of the purpose of administrative law, the relationship between law and administration and of the role of the judge in shaping administrative law. As it has turned out, the pan-European general principles of good administration seem to work as a tertium comparationis of an operable level of abstraction in the comparison between the different national legal orders. The paths of reception we analysed seem to work like a contrast medium highlighting core features of national administrative law and national legal thinking about the purposes and functions of administrative law and, thus, the ‘administrative legal mindsets’ underlying the administrative law of the states we looked at. In fact, the country reports revealed the different ‘administrative legal mindsets’ of the ‘legal communities’ (composed of judges, lawyers, officials and scholars working with the national law on a daily basis) of the CoE Member States. Read together, they showed the differences between the ‘administrative legal mindsets’ which may be fundamental even among those Member States normally classified as part of the same ‘legal family’. Therefore, looking at the impact of the pan-European general principles of good administration on national law is an interesting compromise between a micro-comparison of (individual) features of administrative law (i.e. the right to be heard, proportionality, local self-government, state liability, etc.) and a macro-comparison between whole legal orders, in order to classify them into groups or legal families. To a certain extent it also seems to be a tool for combining comparative administrative law with comparative administration.

As for the overall effectiveness of the pan-European general principles of good administration we came to the conclusion that the pan-European general principles of good administration lead to a certain harmonisation of the legal orders of the Member States (solely) with regard to the ‘limiting function’ of administrative law. Speaking of a ‘certain’ harmonisation may be considered as quite vague but has to be understood within the already highlighted fundamental differences between the administrative and legal systems in the CoE Member States due to the very different ‘administrative legal mindsets’ underlying them. In fact, reception of these principles is a process which is at different stages of development in the different Member States. We can see here a ‘multi-speed Europe’ where the domestic legal orders of the different Member States are open to being guided by and respecting the pan-European general principles of good administration to different degrees which reflects the dynamic character of the CoE as the organisation aiming to achieve ‘a greater unity between its members’– which does not exclude drawbacks in some areas.

This observation leads to the broad classification of the surveyed legal systems into the ‘old’ Member States (and Finland) and the so-called ‘transition countries’ – countries that were challenged by a transition process from authoritarian or socialist regimes into democracies governed by the rule of law after and/or in the context of their admission to the CoE (like all the ‘post-socialist states’ of the Baltics and Central, Eastern, and South-Eastern Europe but also – in a (very) different manner – Portugal, Spain and Turkey). In the first category of countries, the said principles were at least partly already existent at their inception as meta-concepts since national administrative legal systems were mostly self-contained and hence influenced the CoE level from bottom up. In the second category, the reverse trend is discernible – the pan-European principles were extraneous sources helping to consolidate democracy, the rule of law and the protection of individual rights above all by enhancing the ‘limiting function’ of administrative law in challenging circumstances that these countries have faced. They were to a variable degree mostly effective in these States and continue to give guidance as to how to develop an administrative legal framework. In this context it was also possible to point out that the specific issue of ‘rule of law backsliding’ and decline in standards guaranteeing liberal democracy (a phenomena which in the European context is mainly associated with political developments in Hungary since 2010 and Poland since 2015) has to be clearly distinguished from the situation of those States that did not make any or only (too) little progress on their journey to become a ‘good administration State’ in their day-to-day practice because of widespread corruption, ‘legal formalism’ and/or because their governments are not willing to let go of effectively centralised power by establishing checks and balances. States that have never really been on the way to the top of the standards of a democratic state governed by the rule of law and respecting fundamental rights cannot ‘backslide’. They just stay down in the ‘valley of bad governance’.

Finally, the analysis of the different modes of operation of the pan-European general principles of good administration allowed us to construct their normative functions within the framework of the CoE. We assumed that the pan-European general principles of good administration ‘as a package’ are a part of the CoE’s regional international law, namely as an authentic (but still developing) concretisation of the administrative law components of CoE’s founding values within the meaning of Article 3 SCoE. Thus, they concretise the ‘administrative law obligations’ a Member State enters into when joining the CoE. This claim is not only justified under international rules on the interpretation of international treaties as expressed namely in Article 31 (3) (b) VCLT. It also reflects the fact that the pan-European general principles of good administration are part of the ‘common heritage’ of the CoE Member States, namely the ‘administrative law components’ of the ‘spiritual and moral values which are the common heritage of [the] peoples’ of the CoE Member States that are ‘the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’, as the Preamble of the SCoE puts it – a fact that impacts on the way the international rules on the interpretation of international treaties have to be applied here. This does not mean that the pan-European general principles of good administration form a strict set of rules to be observed in each and every respect. As a ‘package’, these principles leave a wide margin of appreciation to the CoE Member States as to which principles (included in the ‘package’) are to be transposed, implemented and enforced into the national legal system, to what extent, and under which circumstances.

For these reasons we concluded that the pan-European general principles of good administration can be used by the CoE organs and institutions and by the ECtHR as normative evaluation standards for assessing the compliance of CoE Member States’ national administrative law with CoE law. Building on research on the ‘democratic backsliding issue’, we think that ‘true’ respect for pan-European general principles of good administration is only possible by transposing, implementing and enforcing a sufficient (minimum) number of them in different ‘specifications’ and ‘flexible combinations’. Only then can national administrative law provide for checks, limits and balances of the powers so that the ‘administrative law component’ of the CoE’s founding values is effectively put in place by creating and ensuring a democratically legitimised, open, and transparent administration respecting the rule of law. The different pan-European general principles of good administration with their different ‘specifications’ (civil service, local self-government, individual rights, administrative procedure, administrative justice, transparency, and so on) are the different building blocks (of varying shapes, sizes and functions) that may be used and combined to construct the legal framework. However, they can be used in different combinations to build the system. This ‘building block theory’ should allow for a ‘good administration test’ which may help with assessing whether a certain national ‘configuration’ of national administrative law and administrative justice violates Article 3 SCoE (as concretised by the pan-European general principles of good administration as a ‘package’). Thus, the pan-European principles can be used as evaluation standards, namely to assess if a certain ‘configuration’ of national administrative law is no longer a mere ‘mise en œuvre’ of these principles but a violation of the limits of the wide margin of appreciation that Member States enjoy within the remit of the CoE.

For more information on the book follow the link.

 IV.            Next Steps: ‘Phase 2’ of the ‘Speyer Project’

As already mentioned, when taking stock of the pan-European general principles of good administration we saw that they are not a loose bundle of various rules in administrative matters but form a ‘coherent whole’ which reflects the common experiences of the CoE Member States and are thus part of the ‘common heritage’ of the people of these states within the meaning of the preambles of the SCoE and the ECHR. This calls for in-depth exploration of the background, the functions and the meaning of these principles, and the experiences which have led to their adoption. Thus, it will form ‘phase 2’ of the ‘Speyer project’ to organise the different pan-European general principles of good administration with regard to their ‘specification’ in a framework consisting of issues such as:

  • administrative organisation (administration and government, distribution of competences, privatization, local self-government);
  • the status of civil servants and public employees;
  • administration and law (sources of administrative law, legality of the administration, discretion);
  • legal certainty and the protection of legitimate expectations;
  • administrative decision making, administrative procedures and procedural rights (including spatial planning procedures);
  • administrative sanctions;
  • (local) public services and the rights of their users;
  • freedom of information, transparency and data protection;
  • administrative justice and administrative oversight; and,
  • State liability.

This framework could be filled in like a textbook, with the different sources of the pan-European general principles of administrative law illustrated with the preparatory works done within the CoE, the case law of the ECtHR on the ‘principles of good governance’, and the work of the CLRAE, the Venice Commission and GRECO, as well as with ‘good’ cases from the courts of the CoE Member States and relevant national scholarship. Such a use of national sources could ‘unlock’ the practical experience of each Member State for all the other Member States without the need to first acquire knowledge about the specificities of their respective legal systems because the pan-European general principles of good administration would serve as a common reference framework. The CoE handbook ‘The administration and you’ could serve as a model and inspiration for such an endeavour. The work for ‘phase 2’ is in its initial stage of development.

For more information, follow the link.