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Phase 2: CoE Administrative Law Treatise

I. The pan-European general principles of good administration framework

As it was already mentioned in the general description of the project, in the course of the first phase, the different pan-European general principles of good administration were classified according to their ‘specification’ in a ‘grid’ (we sometimes also refer to it as a ‘framework’), which corresponds to the different topics to be subject to elaboration in the second phase. This was necessary because even if the sources of the pan-European general principles of good administration are mostly available on the CoE's website, they lack a thematic organisation, such as the one employed, allowing for them to be assigned to individual project constributors.

In a second step, this first version of the ‘grid’ was discussed with the members of the project network during the workshop and has been further refined and restructured as a result of this discussion. In the end, this led to the categorial division on which the project will eventually be based. In general, all subjects forming the framework, which are also thought as Chapters of the second book to be published, will be divided into three sections. In the first section, the main sources of the pertinent ‘CoE law’ in the specific fields will be compiled and the main rules and principles deriving from them will be presented. This will be followed by a section in which the reasons behind these rules and principles will be illustrated with references to preparatory works of the respective CoE documents, illustrative examples from the case law of the ECtHR, and the ‘case law’ of the CLRAE, the Venice Commission, GRECO and other CoE institutions. Furthermore, national and EU experiences and case law will be included, as far as this helps to illustrate the reasons and the historical experiences behind the different pan-European principles. We believe that the significance of these principles in a day-to-day administrative practice can most fully be observed by taking a closer look at the cases where they played a major role. Each chapter should conclude with a section on national academic and/or political discussions on the respective principles and current challenges. This section, of course, cannot be all-embracing but will provide an impression why the different principles discussed are (still) topical and can really be considered as being pan-European principles, and by that, a part of the ‘common heritage’ of the CoE Member States. The discussion on this general structure of the Chapters made a common understanding on the aim and the methods of the research possible.

In a third step, the different subjects where assigned to the project participants based on their interest and specific experience. The idea is each Chapter of the book to have a lead author who wrote a first draft of this chapter. However, the other project participants agreed to give input with their national experiences above all with regard to the second and third section of the different Chapters. This should ‘unlock’ the national experiences with regard to case law, scholarly discussions and specific problems which would have normally not be accessible to the lead author not only for language reasons but simply for lack of knowledge of these other legal orders and their main features. Therefore, the leading author should receive comments from all other project participants who should give their input accordingly. Thus, the aim is for all the authors to participate actively in the wirting-process of all chapters so that all chapters can be considered as a collective work of all project participants. The ‘Speyer team’ will carry out the editing of the entire text and provide for consistency of all the Chapters and made sure that – like the pan-European general principles of good administration – they form a coherent whole.

At this stage of the second phase of the project, the ‘grid’ is structured as follows: 

1. The Pan-European General Principles on Administrative Organisation

2. The Pan-European General Principles on Local Self-Government

3. The Pan-European General Principles on the Status of Public Officials and Civil Servants

4. The Pan-European General Principles on Legality of Administration

5. The Pan-European General Principles on Administrative Rulemaking

6. The Pan-European General Principles on Discretion

7. The Pan-European General Principles on Legal Certainty and Protection of Legitimate Expectations

8. The Pan-European General Principles on Administrative Procedure and Procedural Rights

9. The Pan-European General Principles on Administrative Sanctions

10. The Pan-European General Principles on Public Procurement and other Competitive Award Procedures

11. The Pan-European General Principles on Freedom of Information and Transparency

12. The Pan-European General Principles on Data Protection

13. The Pan-European General Principles on (Local) Public Services and the Rights of their Users

14. The Pan-European General Principles on Spatial Planning

15. The Pan-European General Principles on Judicial Protection

16. The Pan-European General Principles on Administrative Oversight and Ombudspersons

17. The Pan-European General Principles on State Liability

18. The Pan-European General Principles on Digitalisation, AI and Administration

 

II. Research methods

The research method emlpoyed in the second phase of the project will build upon the methodology used in the first phase. With this regard the 'building blocks theory' will be further developed in order to become adjusted to the research aims of the project continuation. Below, a brief desciption of the 'building blocks theory'.

To develop a ‘good-administration-test’ adapted to the graduated legal effects of the pan-European general principles of good administration as a ‘package’, we used the metaphor of ‘building blocks’. This compares the ‘package’ of the pan-European general principles of good administration with a set of building blocks which can be used to build up a proverbial ‘good administration tower’, i.e. a national administrative legal framework of democratic state governed by the rule of law (in so far as its ‘limiting function’ of administrative law concerned). A completed tower of the necessary height is an administrative legal framework containing a meaningful combination of all the elements considered necessary for ensuring that this administrative legal framework respects the founding values of Article 3 SCoE. The different pan-European general principles of good administration with their different ‘specifications’ are the different building blocks (of varying shapes, sizes and functions) which may be used to construct the legal framework. However, they can be used in different combinations and – as already said – the set can be complemented by home-made elements.

The tower can be inspected by an expert engineer, who may either be an ‘external engineer’ coming from the CoE (i.e. the CM, PACE, ECtHR, CLRAE, Venice Commission, GRECO, etc.), other international Organisations (like the OECD) or the EU, or be an ‘internal engineer’ (national courts, ombudspersons, other national accountability institutions, internal review bodies, parliamentary opposition, etc.), or independent (scholarship, NGOs, media etc.). These expert engineers should be able to assess which building blocks have been used and which have been left out. They should also be able to assess if it is an ambitious construction or if only a minimum number of the blocks has been used, if the construction follows the assembly instructions (provided by institutions or experts of partner States and/or the CoE and/or EU and/or the OSCE and/or of NGOs, etc.), or if the building blocks are used in a creative way or following local traditions, if the construction is compact (leaving not much room for manoeuvre for the administration within the tower) or filigree (adapted to a confident and expert administration). If the construction has been standing for a longer time, then the expert engineer can see if all building blocks are serving their purpose, if they need to be replaced, modified or have been taken out – perhaps to an extent that the whole construction risks falling apart. The analysis may also lead to the conclusion that one was never dealing with a real construction but only with a simple rubble heap of blocks thrown on top of each other (by an uncommitted national government) so that the blocks cannot serve their purpose. As with a building inspection, all these assessments – which are in the end nothing else than the ‘good-administration-test’ – are made on the basis of the explications of the Member State whose ‘good administration tower’ is being inspected. The Member State is therefore involved in the evaluation procedures to the extent that it can and should explain to the experts what is to be achieved with certain constructions and why changes have been made over time.

The ‘building blocks theory’ thus provides an analytical tool for structuring the ‘good-administration-test’. Anybody with enough expertise to handle it (the ‘expert engineers’) may use this tool. Thus, it may not only be applicable to scholarly research on the compliance of national administrative law with the pan-European general principles of good administration. The tool can also be used in monitoring procedures carried out within the intergovernmental framework of the CoE, in proceedings before the ECtHR or as a tool in the EU’s ‘rule of law toolbox’ and by domestic courts or monitoring bodies when they evaluate if a specific ‘configuration’ or adaption of national administrative law meets the standards of Article 3 SCoE (or constitutional principles to be interpreted in the light of Article 3 SCoE).

All this shows that the building blocks theory’ provides for a ‘good administration test’ which is based on a (real or simulated) structured dialogue between an ‘expert engineer’ and the Member State about the extent and the modality of the transposition, implementation and enforcement of the pan-European general principles of good administration within the national legal order. This dialogue is about the reasons why a national government and/or the legislator chose specific building blocks, left others unused or added, exchanged or took out building blocks after completing the tower. This structured dialogue presupposes that there are arguments for specific choices which are rational and verifiable. It is grounded in the assumption that the national government is striving for an administrative legal framework ensuring respect for the rule of law and individual rights by the administration and the democratic legitimation of the administration.

The main weakness of the ‘building blocks theory’ may be that it does not give a clear answer to the question of which pan-European general principles of good administration have to be transposed, implemented and enforced in which combinations and to which degree so that the domestic administrative legal system can be considered as compliant with Article 3 SCoE. It also does not specify which ‘building blocks’ of which ‘specifications’ in which ‘combinations’ have to be used to ensure that the ‘good-administration-tower’ is robust and serves its purpose. However, this weakness is also its strength. It makes clear that the transposition, implementation and enforcement of the different pan-European general principles of good administration are not an end in itself. The whole endeavour of incorporating them into domestic law only makes sense to the extent that the overall result really helps to promote and maintain good administration in the different legal orders of the CoE Member States with their different ‘administrative legal mindsets’.

Nevertheless, the decision of the national lawmaker and government which pan-European general principles of good administration shall be transposed, implemented and enforced in which combinations should be an informed decision. This calls for explaining in detail on the content, purpose and the reasons behind the different pan-European principles of good administration with their different ‘specifications’. Providing answers to these questions constitutes the main objective of the second phase of the project.

III. Online Workshop 2021

On the 21st of May 2021 an online Workshop took place, thereby officialy initiating the Phase 2 of the project on Good Administration and the Council of Europe. 

During the workshop the objectives of the project and its methodology were dicussed by all the project participants. The tentative project timeline was developed as well. The discussion within the group resulted in the emergence of several new chapters to be included in the book. The updated frame of reference (which corresponds to the table of contents of the book to be published) is presented above.