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The Pan-European General Principles on Discretion

(compiled by Ulrich Stelkens)

I. Scope of the Pan-European General Principles on Discretion

II. Prevention of Abuse of Power as an Element of CoE's Understandings of the Rule of Law, Good Administration and Human Rights

III. Discretion and Administrative Guidelines

IV. Discretion and Judicial Review

I. Scope of the Pan-European General Principles on Discretion

The scope of the pan-European general principles on discretion does not cover the 'rule making discretion' to which each administrative rule maker is entitled when enacting rules of general application. Thus, they do not cover the power to make policy choices when deciding which rules of general application shall be enacted (for the pan-European general principles on administrative rulemaking click here).

Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities:

"The Committee of Ministers [...]
Considering that administrative authorities are acting in an increasing number of fields, and, in the process, are frequently called upon to exercise discretionary powers ;
Considering it is desirable that common principles be laid down in all member states to promote the protection of the rights, liberties and interests of persons whether physical or legal, against arbitrariness or any other improper use of a discretionary power, without at the same time impeding achievement by the administrative authorities of the purpose for which the power has been conferred;
Recalling the general principles governing the protection of the individual in relation to the acts of administrative authorities as set out in Resolution (77) 31;
Considering that it is desirable that the said resolution be supplemented when applied to acts taken in the exercise of discretionary powers,
Recommends the governments of member states :
a. to be guided in their law and administrative practice by the principles annexed to this recommendation,
b. to inform the Secretary General of the Council of Europe, in due course, of any significant developments relating to the matters referred to in the present recommendation ;
Instructs the Secretary General of the Council of Europe to bring the contents of this recommendation to the notice of the Government of Finland.
Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
I – Scope and definitions
The following principles apply to the protection of the rights, liberties and interests of persons with regard to administrative acts taken in the exercise of discretionary powers.
The term "administrative act" means, in accordance with Resolution (77) 31, any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal.
The term "discretionary power" means a power which leaves an administrative authority some degree of latitude as regards the decision to be taken, enabling it to choose from among several legally admissible decisions the one which it finds to be the most appropriate.
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 or interests 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 to observe the spirit of this recommendation.

Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2):

"2. In modern society, administrative action is exerting an ever-increasing influence on the lives of the citizens, who are all, one way or another, affected by decisions of administrative authorities.
In some matters, the outcome of administrative decisions is precisely determined in advance by laws and regulations. In others, the law allows administrative authorities some degree of latitude and sets only the limits to that latitude, that is, the administration is given a discretionary power.
An administrative authority which exercises a discretionary power must not only comply with the applicable laws and regulations but also act in a manner that is fair and just.
Efforts to this end are continuously under way in many member states. In order to provide these efforts with a common European background, the Committee of Ministers of the Council of Europe decided in February 1977 to include the present subject in the work programme of the organ.
[...].
"10. The recommendation applies to administrative acts taken in the exercise of discretionary powers.
The term "administrative act" is given exactly the same meaning as under Resolution (77) 31. The act must be taken in the exercise of public authority ; as in the case of that resolution, judicial procedures, the investigation of criminal offences with a view to their prosecution before a court, legislative procedures (i.e., the enactment of statutes and statutory instruments) are outside the recommendation’s scope of application.
Moreover, matters relating to the internal management and organisation of the administration fall outside the ambit of the recommendation."

II. Prevention of Abuse of Power as an Element of CoE's Understandings of the Rule of Law, Good Administration and Human Rights

1. "Basic Principles" of Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities

2. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

3. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011

4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

5. Case Law of the ECtHR

1. "Basic Principles" of Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities

"Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
[...]
II – Basic principles
An administrative authority, when exercising a discretionary power:
1. does not pursue a purpose other than that for which the power has been conferred;
2. observes objectivity and impartiality, taking into account only the factors relevant to the particular case;
3. observes the principle of equality before the law by avoiding unfair discrimination;
4. maintains a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues;
5. takes its decision within a time which is reasonable having regard to the matter at stake ;
6. [...]"

See for an explanation of these 'Basic Principles' of Recommendation No. R (80)2:

• P. Leuprecht, 'The contribution of the Council of Europe to reinforcing the position of the individual in administrative proceedings' in Secretariat General of the Council of Europe in co-operation with the Spanish ‘Defensor del pueblo’ (eds.), Round Table with European Ombudsmen (H/Omb (85) 5) (1985), pp. 1 - 9 (pp. 7 ff.)

• para. 16 -29 of the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2)

2. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

"Article 2 - Principle of lawfulness
[...]
(4) [Public authorities] shall exercise their powers only if the established facts and the applicable law entitle them to do so and solely for the purpose for which they have been conferred".

For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party of the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 69 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

"Article 3 - Principle of Equality
(1) Public authorities shall act in accordance with the principle of equality.
(2) They shall treat private persons who are in the same situation in the same way. They shall not discriminate between private persons on grounds such as sex, ethnic origin, religious belief or other conviction. Any difference in treatment shall be objectively justified."

For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party of the Project Group on Administrative Law(CJ-DA-GT (2006) 1), para 75 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

"Article 5 – Principle of proportionality
(1) Public authorities shall act in accordance with the principle of proportionality. (2) They shall impose measures affecting the rights or interests of private persons only where necessary and to the extent required to achieve the aim pursued. (3) When exercising their discretion, they shall maintain a proper balance between any adverse effects which their decision has on the rights or interests of private persons and the purpose they pursue. Any measures taken by them shall not be excessive."

For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party of the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 94 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

 3. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011

"(2) Legal certainty
44. [...].
45. The need for certainty does not mean that discretionary power should not be conferred on a decision-maker where necessary, provided that procedures exist to prevent its abuse. In this
context, a law which confers a discretion to a state authority must indicate the scope of that discretion. It would be contrary to the rule of law for the legal discretion granted to the executive
to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion and the manner of its exercise with sufficient clarity, to give the individual adequate protection against arbitrariness. [...].
(3) Prohibition of arbitrariness
52. Although discretionary power is necessary to perform a range of governmental tasks in modern, complex societies, such power should not be exercised in a way that is arbitrary. Such exercise of power permits substantively unfair, unreasonable, irrational or oppressive decisions which are inconsistent with the notion of rule of law.

4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

"C. Prevention of abuse (misuse) of powers⁵⁰

Are there legal safeguards against arbitrariness and abuse of power (détournement de pouvoir) by public authorities?
i. If yes, what is the legal source of this guarantee (Constitution, statutory law, case-law)?
ii. Are there clear legal restrictions to discretionary power, in particular when exercised by the executive in administrative action?⁵¹
iii. Are there mechanisms to prevent, correct and sanction abuse of discretionary powers (détournement de pouvoir)? When discretionary power is given to officials, is there judicial review of the exercise of such power?
iv. Are public authorities required to provide adequate reasons for their decisions, in particular when they affect the rights of individuals? Is the failure to state reasons a valid ground for challenging such decisions in courts?

64. An exercise of power that leads to substantively unfair, unreasonable, irrational or oppressive decisions violates the Rule of Law.
65. It is contrary to the Rule of Law for executive discretion to be unfettered power.Consequently, the law must indicate the scope of any such discretion, to protect against arbitrariness.
66. Abuse of discretionary power should be controlled by judicial or other independent review. Available remedies should be clear and easily accessible.
67. Access to an ombudsperson or another form of non-contentious jurisdiction may also be appropriate.
68. The obligation to give reasons should also apply to administrative decisions.⁵²"

Footnote 50: Protection against arbitrariness was mentioned by the European Court of Human Rights in a number of cases. In addition to those quoted in the next note, see e.g. Husayn (Abu Zubaydah) v. Poland, 7511/13, 24 July 2014, § 521ff; Hassan v. the United Kingdom, 29750/09, 16 September 2014, § 106; Georgia v. Russia (I), 13255/07, 3 July 2014, 182ff (Article 5 ECHR); Ivinović v. Croatia, 13006/13, 18 September 2014, § 40 (Article 8 ECHR). For the Court of Justice of the European Union, see e.g. ECJ, 46/87 and 227/88, Hoechst v. Commission, 21 September 1989, § 19; T-402/13, Orange v. European Commission, 25 November 2014, § 89. On the limits of discretionary powers, see Appendix to Recommendation of the Committee of Ministers on good administration, CM/Rec(2007)7, Article 2.4 (“Principle of lawfulness”): “[Public authorities] shall exercise their powers only if the established facts and the applicable law entitle them to do so and solely for the purpose for which they have been conferred”.
Footnote 51: "CM(2008)170, The Council of Europe and the Rule of Law, § 46; ECtHR Malone, 8691/79, 2 August 1984, § 68; Segerstedt-Wiberg and Others v. Sweden, 62332/00, 6 June 2006, § 76 (Article 8). The complexity of modern society means that discretionary power must be granted to public officials. The principle by which public authorities must strive to be objective (“sachlich”) in a number of States such as Sweden and Finland goes further than simply forbidding discriminatory treatment and is seen as an important factor buttressing confidence in public administration and social capital."
Footnote 52: "See e.g. Article 41.1.c of the Charter of Fundamental Rights of the European Union. Cf. also item II.E.2.c.vi and note 126."

5. Case Law of the ECtHR

ECtHR, judgement Lashmankin and Others v. Russia (57818/08 and 14 others) 7 February 2017

"410. The Court reiterates that the expressions "prescribed by law" and "in accordance with the law" in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be accessible to those concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Hasan and Chaush, cited above, § 84, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I, with further references). Also, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to interfere with the rights guaranteed by the Convention (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007; Gülmez v. Turkey, no. 16330/02, § 49, 20 May 2008; Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; and, mutatis mutandis, Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009).
411. For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush, loc. cit., and Maestri, loc. cit., with further references)."

ECtHR (GC), judgment Navalnyy v. Russia (29580/12) 15 November 2008

"148. As regards the latter five episodes, it should be added that they disclose a persistent failure by the national authorities to show tolerance towards unauthorised but peaceful gatherings and, more generally, to apply standards which are in conformity with the principles embodied in Article 11 of the Convention. It was not apparent from the relevant provisions in Articles 19 § 3 and 20 § 2 of the Code of Administrative Offences or from the decisions applying them that due consideration ought to be and had in fact been given to interests such as the need for prevention of disorder or crime and for protection of the rights and freedoms of others. Nor did it appear that the competent authorities had struck a fair balance between those interests, on the one hand, and those of the applicant in exercising his right to freedom of peaceful assembly, on the other.
149. Such failures have already been identified in a number of previous cases where the police stopped and arrested protestors for the sole reason that their demonstration had not been authorised, and in which the formal unlawfulness had been put forward as the only justification [...]. The Court has already, well before the period during which the episodes complained of occurred, issued judgments in which it found that the respondent State had violated Article 11 and in which it specifically addressed the requirements which, according to its case-law, must be met in respect of measures interfering with the right of peaceful assembly [...]. Thus, the authorities of the respondent State have been in a position to know and to take into account the relevant Convention standards. Nevertheless, it appears that the domestic practices have continued to violate Convention standards and even that legislative changes have been introduced, entailing further restrictions.
150. The Court considers that there is a link between these failures and the previously observed structural inadequacy in the regulatory framework, which provides for excessively restrictive formal requirements for organising certain public gatherings, as identified in Lashmankin and Others (§§ 471-77). Thus, the broad interpretation of what constitutes a gathering subject to notification and the lack of tolerance towards gatherings which do not comply with the procedure highlights yet another dimension to the aforementioned structural problem. The absence of safeguards circumscribing the authorities’ discretion in interfering with peaceful public gatherings which are not causing “disorder” or nuisance is aggravated by a broad interpretation in practice of what constitutes a “gathering subject to notification” and by excessively wide discretion in imposing restrictions on such gatherings through rigid enforcement involving, as it did, immediate arrest and deprivation of liberty as well as sanctions of a criminal nature as described above (see paragraphs 79‑80 above). It may even be questioned whether, owing to these characteristics of the applicable legal framework, any pursuit of national remedies would also be ineffective and devoid of any prospects of success."

ECtHR, judgment Ivanova and Cherkezov v. Bulgaria (46588/15) 21 April 2016

"53. Under the Court’s well-established case-law […] the assessment of the necessity of the interference in cases concerning the loss of one’s home for the promotion of a public interest involves not only issues of substance but also a question of procedure: whether the decision-making process was such as to afford due respect to the interests protected under Article 8 of the Convention […]. Since the loss of one’s home is a most extreme form of interference with the right to respect for the home, any person risking this – whether or not belonging to a vulnerable group – should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under that Article. The factors likely to be of prominence in this regard, when it comes to illegal construction, are whether or not the home was established unlawfully, whether or not the persons concerned did so knowingly, what is the nature and degree of the illegality at issue, what is the precise nature of the interest sought to be protected by the demolition, and whether suitable alternative accommodation is available to the persons affected by the demolition […]. Another factor could be whether there are less severe ways of dealing with the case; the list is not exhaustive. Therefore, if the person concerned contests the proportionality of the interference on the basis of such arguments, the courts must examine them carefully and give adequate reasons in relation to them […]; the interference cannot normally be regarded as justified simply because the case falls under a rule formulated in general and absolute terms. The mere possibility of obtaining judicial review of the administrative decision causing the loss of the home is thus not enough; the person concerned must be able to challenge that decision on the ground that it is disproportionate in view of his or her personal circumstances. Naturally, if in such proceedings the national courts have regard to all relevant factors and weigh the competing interests in line with the above principles – in other words, where there is no reason to doubt the procedure followed in a given case – the margin of appreciation allowed to those courts will be a wide one, in recognition of the fact that they are better placed than an international court to evaluate local needs and conditions, and the Court will be reluctant to gainsay their assessment […]).
54. The Court cannot agree with the position, expressed by some Bulgarian administrative courts, that the balance between the rights of those who stand to lose their homes and the public interest to ensure the effective implementation of the building regulations can as a rule properly be struck by way of an absolute rule permitting of no exceptions […]. Such an approach could be sustained under Article 1 of Protocol No. 1, which gives the national authorities considerable latitude in dealing with illegal construction […]."

III. Discretion and Administratve Guidelines

Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities:

"Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
[...]
II – Basic principles
An administrative authority, when exercising a discretionary power :
1. [...];
6. applies any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case.
III – Procedure
In addition to the principles of fair administrative procedure governing administrative acts in general as set out in Resolution (77) 31, the following principles apply specifically to the taking of administrative acts in the exercise of a discretionary power.
7. Any general administrative guidelines which govern the exercise of a discretionary power are :
a. made public ; or
b. communicated in an appropriate manner and to the extent that is necessary to the person concerned, at his request, be it before or after the taking of the act concerning him.
8. Where an administrative authority, in exercising a discretionary power, departs from a general administrative guideline in such a manner as to affect adversely the rights, liberties or interests of a person concerned, the latter is informed of the reasons for this decision. 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."

Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2):

"Principle 6 – Application of guidelines
30. This principle highlights the importance of consistency in administrative practice. It lies within the scope of the general principle of equality and is intended to promote predictability and certainty, but it underlines also the need for an individual examination of the particular circumstances of each case.
31. The term "general administrative guidelines" includes the instructions which an administrative authority addresses to officials of the administration, concerned for the purpose of shaping the administration’s course of conduct and ensuring consistency in administrative action by indicating the practice to be followed in cases affecting members of
the public which are of a comparable nature. It includes circulars, office memoranda and other administrative measures of an internal nature.
32. As a general rule, the administrative authority which is making the decision applies any general administrative guidelines in a consistent way where they are mandatory within the administration.
In many countries, general administrative guidelines do not have the force of law and usually the non-observance of such guidelines is not itself alone a ground for rendering the relevant measure void.
In some other countries, by contrast, citizens may invoke a general administrative guideline to challenge a decision taken in their regard.
33. It is for each national system to determine the consequences of the non-observance of general administrative guidelines.
[...]
Principle 7 – Publicity of guidelines
36. This principle complements Principle 6.
It is not sufficient that general administrative guidelines be observed by the authority concerned (see Principle 6). It is very desirable that a person concerned should have access to the guidelines so that he can act in full knowledge of the pertinent criteria.
37. The application of Principle II of Resolution (77) 31, which enables a person concerned to have access to information, already meets this need partially in as much as general administrative guidelines are relevant factors within the meaning of the said resolution.
Nevertheless, the present principle usefully supplements Principle II of Resolution (77) 31 : on the one hand, it has a preventive effect, particularly by enabling the individual to assess to some extent, in advance, the likelihood of his application succeeding, by knowing the criteria applied in similar cases ; on the other hand, it provides explicitly for guidelines to be communicated at the individual’s request, be it before an act is taken or after. This might be of interest to the person concerned in so far as the information may enable him to ascertain whether the principle of equality has been observed in the decision affecting him.
38. The formula adopted enables administrative authorities in member states to apply this principle either by making any general administrative guidelines public or by communicating them to the person concerned at his request to the extent that is necessary. The latter formula may be appropriate when a guideline, although consistently applied by an authority, has not been laid down in writing.
39. Further, it has been decided in the case where guidelines are communicated at the request of the person concerned, not to specify the means whereby it is to be done. The expression used has been adopted so that an administrative authority is left free to communicate only those parts of the guideline which concern directly the specific case or, without communicating the text of the guideline itself, to indicate to a person concerned the criteria set out therein as to govern similar cases.
Principle 8 – Departure from a guideline
40. The purpose of the principle is to enable a person concerned to be informed of the reasons for any departure by an administrative authority from a general administrative guideline in such a manner as affects adversely his rights, liberties or interests. From this he may detect whether one of the other principles referred to in the recommendation (e.g., the principle of equality) has been infringed.
The departure from the guideline should be explained as a part of the statement of reasons to be given under Principle IV of Resolution (77) 31. The application of this principle also implies the possibility for an individual to learn from the statement of reasons why such a departure has been made in a given case, whether this was made necessary by the circumstances of the case and is justified objectively or whether it constitutes an arbitrary departure.
41. The application of this principle is closely connected with that of Principles 6 and 7."

IV. Discretion and Judicial Review

1. Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities

2. Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

3. Case Law of the ECtHR on the requirements of Article 6 (1) ECHR on the "intensity" of judicial review in those administrative matters wich are considered to be disputes on the "determination of […] civil rights and obligations" within the meaning of Article 6 (1) ECHR

1. Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities

"Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
[...]
IV – Control
9. An act taken in the exercise of a discretionary power is subject to control of legality by a court or other independent body. This control does not exclude the possibility of a preliminary control by an administrative authority empowered to decide both on legality and on the merits.
10. Where no time-limit for the taking of a decision in the exercise of a discretionary power has been set by law and the administrative authority does not take its decision within a reasonable time, its failure to do so may be submitted to control by an authority competent for the purpose.
11. A court or other independent body which controls the exercise of a discretionary power has such powers of obtaining information as are necessary for the exercise of its function."

Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2):

"42. Owing to the diversity of the control systems in member states the committee of experts confined itself to drafting very general principles in this field. It considered that it was for each state to select the measures to be taken for the application of these principles, according to its own legal system.
Principle 9 – Nature of control
43. The purpose of this principle is to ensure that the legality of any administrative act taken in the exercise of a discretionary power is subject to control by a court or other independent body.
44. The principle does not exclude the possibility that the courts and other independent bodies (for example, ombudsmen), which control the legality of a discretionary administrative act, also control the merits of such acts.
Also the terms of paragraph 2, which provide expressly for control of both legality and merits by the competent administrative authority, are not to be construed as precluding this twofold control by a court or another independent body.
45. On account of the diversity in the European legal systems between the definition of legality and that of the merits, it was agreed that it was for each member state to determine the content, in the present context, of the two concepts of “legality” and “merits”, the limits of which are not always precise and clear. It is also relevant to the question of whether any of the principles in this recommendation is to be looked upon as raising a question of legality or of merits.
Principle 10 – Abstention on the part of an administrative authority
46. This principle is closely connected with Principle 5. Its application aims at enabling a person concerned who has been placed in a position of having to wait for a period exceeding a reasonable time, to submit the abstention on the part of an administrative authority to control by an authority competent for the purpose.
47. The preconditions for control, the nature and type of that control as well as the control bodies competent to exercise that control, are matters to be determined according to the legal systems of individual member states.
Principle 11 – Powers of the control body to obtain information
48. The purpose of this principle is to guarantee that the court or independent body which controls the exercise of a discretionary power by an administrative authority has the means necessary to achieve this objective.
It implies in particular that the court or other independent body should have access to the information on the basis of which the decision was taken and that administrative bodies should communicate such information.
The principle does not, however, exclude those systems where only the parties to a case and notably the administrative authority are allowed to produce the relevant elements, provided always that the control body may order certain elements to be produced.
49. Under this recommendation the powers of independent control bodies to obtain information from administrative authorities are meant to be such as are necessary for the exercise of their functions ; depending upon the legal system, the information referred to may take the form of, for example, official reports on the facts and considerations taken into account by the administrative authority when taking the decision.
50. The extent of such powers is left to be determined by each member state according to its legal system."
[...].

2. Part B Principle 1 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

3. Case Law of the ECtHR on the requirements of Article 6 (1) ECHR on the "intensity" of judicial review in those administrative matters wich are considered to be disputes on the "determination of […] civil rights and obligations" within the meaning of Article 6 (1) ECHR

Summary of this case law is presented in ECtHR (ed), Guide on Article 6 of the European Convention of Human Rights - Right to a fair trial (civil limb) (version of August 2022), para. 187 ff.

Within the scope of application of Article 6 (1) ECHR this case law (concerning the 'civil limb' of the right to fair trial) defines minimum requirements on the intensity of judicial review of administrative discretionary decision. This case law does not only concern the relationship between the judiciary and administration but also reflects a certain understanding of the division of tasks between legislation and administration.

See, e. g., ECtHR judgment Sigma Radio Television Ltd v. Cyprus (32181/04) 21 July 2011:

"151. The Court reiterates that even where an adjudicatory body, including an administrative one as in the present case, which determines disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has “full” jurisdiction and does provide the guarantees of Article 6 § 1 […].
152. Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it […].
153. In adopting this approach the Convention organs have had regard to the fact that it is often the case in relation to administrative law appeals in the Member States of the Council of Europe, that the scope of judicial review over the facts of a case is limited and that it is the nature of review proceedings that the reviewing authority reviews the previous proceedings, rather than taking factual decisions. It can be derived from the relevant case-law that it is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialised areas of law (for example, planning […]; environmental protection […]; regulation of gaming […]).
154. In assessing the sufficiency of a judicial review available to an applicant, the Court will have regard to the powers of the judicial body in question […], and to such factors as (a) the subject-matter of the decision appealed against, in particular, whether or not it concerned a specialised issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and if, so, to what extent; (b) the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the adjudicatory body; and (c) the content of the dispute, including the desired and actual grounds of appeal […].
155. Whether the review carried out is sufficient for the purposes of Article 6 will very much depend on the circumstances of a given case: the Court will confine itself as far as possible to examining the question raised in the case before it and to determining if, in that particular case, the scope of the review was adequate.
156. The Court has held in a number of cases, where the court in question did not have full jurisdiction as such but examined the issues raised before it concerning the adjudicatory body’s decision, that the judicial review in the case was sufficient and that the proceedings complied with Article 6 § 1 of the Convention. This has been the case, for example, where upon judicial review the applicants’ submissions on their merits or grounds of appeal were examined point by point, without the court having to decline jurisdiction in replying to them or in ascertaining various facts […]. Similarly […] the Court held that there had been no violation of Article 6 § 1 as the High Court had examined the central issue in the case before it
159. At the outset, it is common ground that the power of review of the Supreme Court […] was not capable of embracing all aspects of the CRTA’s decisions. In particular, as is usually the case in the systems of judicial control of administrative decisions found throughout the Council of Europe’s Member States […], the Supreme Court could not substitute its own decision for that of the CRTA and its jurisdiction over the facts was limited. Notwithstanding, it could have annulled the decisions on a number of grounds, including if the decision had been reached on the basis of a misconception of fact or law, there had been no proper enquiry or a lack of due reasoning, or on procedural grounds.
157. Where, however, the reviewing court is precluded from determining the central issue in dispute, the scope of review will not be considered sufficient for the purposes of Article 6 […]. The Court has therefore found violations of Article 6 § 1 in cases where the domestic courts considered themselves bound by the prior findings of administrative bodies which were decisive for the outcome of the cases before them, without examining the issues independently […]. In addition the Court has found a violation of Article 6 where a ground of challenge has been upheld by the reviewing court but it was not possible to remit the case for a fresh decision by the same or a different body […].
159. At the outset, it is common ground that the power of review of the Supreme Court […] was not capable of embracing all aspects of the CRTA’s decisions. In particular, as is usually the case in the systems of judicial control of administrative decisions found throughout the Council of Europe’s Member States […], the Supreme Court could not substitute its own decision for that of the CRTA and its jurisdiction over the facts was limited. Notwithstanding, it could have annulled the decisions on a number of grounds, including if the decision had been reached on the basis of a misconception of fact or law, there had been no proper enquiry or a lack of due reasoning, or on procedural grounds.
160. Such an approach by an appeal tribunal conducting the review of a decision of an administrative body can reasonably be expected, having regard to the nature of review proceedings and the respect which must be given to decisions taken by administrative authorities on grounds of “expediency” […].
161. As to the subject-matter of the decision appealed against […] a classic exercise of administrative discretion in the specialised area of law concerning broadcasting taken in the context of ensuring standard setting and compliance with the relevant legislation and regulations pursuant to public interest aims […].
162. In connection with the manner in which the decisions were arrived at, the Court observes, as it noted above […], that a number of uncontested procedural guarantees were available to the applicant in the proceedings before the CRTA: the applicant was given details of the probable violation or the complaint made against it and the decisions were arrived at after a hearing had been held. The applicant was able to make written submissions and/or oral submissions during the hearing of the cases […]. Further, it was open to the applicant to make a wide range of complaints in the context of the judicial review proceedings before the CRTA. It is noted in this respect that the applicant’s allegations as to shortcomings in the proceedings before the CRTA, including those concerning objective partiality and the breach of the principles of natural justice, were subject to review by the Supreme Court.
163. Lastly, with regard to the content of the dispute, the Court observes that in its recourses to the Supreme Court the applicant raised a number of points concerning the legality of the CRTA decisions […].
165. As is evident from the extensive reasoning in its judgment the Supreme Court examined all the above issues, point by point, without refusing to deal with any of them. […].
166. It is also clear from the above that the applicant’s cases did not centre on a fundamental question of fact which the Supreme Court did not have jurisdiction to revisit. […]."

It is significant that this case law on the requirements of the 'civil limb' Article 6 (1) ECHR on the "intensity" of judicial review in those administrative matters is "recalled" in the preamble to the above-mentioned Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts. Hence, in the view of the Committee of Ministers of the CoE the principles relating to the scope of judicial review on the exercising of administrative discretionary power established in this case law are not only applicable within the limited scope of Article 6 ECHR. They are considered as an expression of general requirements of the rule of law and effective judicial protection in administrative matters.