← back
The Pan-European General Principles on Administrative Procedure and Procedural Rights
(compiled by Ulrich Stelkens)
II. General Right to a Fair and Impartial Administrative Procedure
IV. Right of Every Person to Have Access to His or Her File
V. Right to Representation and Assistance
VI. Obligation to Take Decisions on the Basis of Duly Established Facts
VII. Form and Notification of Administrative Decisions
VIII. Obligation of the Administration to Give Reasons for its Decisions
IX. Procedural Rights and Obligations in Enforcement Proceedings
X. Judicial Review of Procedural Errors
I. Delimitation of the Scope of the Pan-European General Principles on Administative Procedure to the Scope of Application of more Specialised Principles
The pan-European general principles of administrative procedure and procedural rights do not cover administrative rulemaking procedures (for the pan-European general principles governing these procedures click here). They cover administrative procedures
- in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities,
- in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration as far as its provisions are applicable to 'individual decisions', and
- procedures concerning the conclusion and execution of public contracts outside competitive award procedures (these procedures are (partly) covered by both recommendations but not explicitly).
Therefore, the pan-European general principles on administrative procedure and procedural rights focus on 'simple' administrative procedures concerning single case decisions of a public authority whether unilateral or contractual. Following the typology of J. A. Gonzáles ('The Evolution of Administrative Procedure Theory in ‘New Governance’ Key Point', (2013) 6:1 REALaw, pp. 73, 109 (pp. 79 ff.)) 'simple procedures' could be described as procedures that involve a limited number of persons and imply a rather "bureaucratic and legal decision-making process". Mainly these 'simple procedures' are also in the focus on the pertinent chapters in CoE (ed.), The administration and you (1st edition 1996/1997), para. 33 ff. (pp. 21 ff.) and CoE (ed.), The administration and you (2nd edition 2018), pp. 27 f. This does not mean that the pan-European general principles on administrative procedure and procedural rights are entirely inapplicable in more 'complex' procedures. However, if they are the applicable in 'complex procedures' this applicability is in general only of a subsidiary nature.
The counterpart to a 'simple procedure' would be a 'complex procedure'. 'Complex procedures' could be caracterised as procedures concerning complex legal mulitlateral relationships, involving a large number of persons and/or the "exercise of discretionary powers, regulatory strategies based on goal-oriented programmes" (cf. J. A. Gonzáles ('The Evolution of Administrative Procedure Theory in ‘New Governance’ Key Point', (2013) 6:1 REALaw, pp. 73, 109 (pp. 79 ff.))
Therefore, the pan-European general principles on administrative procedures do not cover the specifics of
- administrative sanctioning procedures (for the pan-European general principles governing these procedures click here)
- public procurement and other competitive award procedures (for the pan-European general principles governing these procedures click here)
- administrative decisions which are neither individual nor regulatory in the sense of Art. 11 (3) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration (for these procedures click here)
- administrative procedures involving a large number of persons in the sense of Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons, especially 'spatial planning procedures' (for a definition of 'spatial planning decisions' and the pan-European general principles governing spatial planning procedures click here)
- internal review procedures (for the pan-European general principles governing these procedures click here)
- transnational administrative procedures (for the pan-European general principles on transnational mutual assistance and participation in administrative procedures click here)
II. General Right to a Fair and Impartial Administrative Procedure
Right to a fair administrative procedure = Every person's right to have his or her affairs handled impartially, fairly and within a reasonable time by public authorities (cf. Article 41 (1) of the Charter of Fundamental Rights of the European Union)
3. The CoE handbook "The administration and you"
1. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 4 - Principle of impartiality
(1) Public authorities shall act in accordance with the principle of impartiality.
(2) They shall act objectively, having regard to relevant matters only.
(3) They shall not act in a biased manner.
(4) They shall ensure that their public officials carry out their duties in an impartial manner, irrespective of their personal beliefs and interests."
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 87 ff. and the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 57 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
"Article 7 - Principle of taking action within a reasonable time limit
Public authorities shall act and perform their duties within a reasonable time."
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 66 ff. and the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 119 ff. ; for the genesis of Recommendation CM/Rec(2007)7 in general click here
"Article 13 – Requests from private persons
(1) Private persons have the right to request public authorities to take individual decisions which lie within their competence.
(2) Decisions in response to requests to public authorities shall be taken within a reasonable time which can be defined by law. Remedies for cases where no such decision has been taken should be foreseen.
(3) When such a request is made to an authority lacking the relevant competence, the recipient shall forward it to the competent authority where possible and advise the applicant that it has done so.
(4) All requests for individual decisions made to public authorities shall be acknowledged with an indication of the expected time within which the decision will be taken, and of the legal remedies that exist if the decision is not taken. An acknowledgement in writing may be dispensed with where public authorities respond promptly with a decision."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 10 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
ECtHR, judgement Beyeler v Italy (33202/96) 5 January 2000
"120. The Court considers that the Government have failed to give a convincing explanation as to why the Italian authorities had not acted at the beginning of 1984 in the same manner as they acted in 1988, regard being had in particular to the fact that, under section 61(2) of Law no. 1089 of 1939 [...], they could have intervened at any time from the end of 1983 onwards and in respect of anyone “in possession” of the property (and thus without needing first to determine who the owner of the painting was). That is, moreover, apparent from the judgment of the Court of Cassation of 16 November 1995 [...]. Thus, taking punitive action in 1988 on the ground that the applicant had made an incomplete declaration, a fact of which the authorities had become aware almost five years earlier, hardly seems justified. In that connection it should be stressed that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency.
121. That state of affairs allowed the Ministry of Cultural Heritage to acquire the painting in 1988 at well below its market value. Having regard to the conduct of the authorities between December 1983 and November 1988, the Court considers that they derived an unjust enrichment from the uncertainty that existed during that period and to which they had largely contributed. Irrespective of the applicant's nationality, such enrichment is incompatible with the requirement of a "fair balance".
122. Having regard to all the foregoing factors and to the conditions in which the right of pre-emption was exercised in 1988, the Court concludes that the applicant had to bear a disproportionate and excessive burden. There has therefore been a violation of Article 1 of Protocol No. 1."
ECtHR, judgment Church of Scientology Moscow v Russia (18147/02) 5 April 2007
"91. The Court observes that the Moscow Justice Department refused to process at least four applications for re-registration, referring to the applicant's alleged failure to submit a complete set of documents […]. However, it did not specify why it deemed the applications incomplete. Responding to a written inquiry by the applicant's president, the Moscow Justice Department explicitly declined to indicate what information or document was considered missing, claiming that it was not competent to do so […]. The Court notes the inconsistent approach of the Moscow Justice Department on the one hand accepting that it was competent to determine the application incomplete but on the other hand declining its competence to give any indication as to the nature of the allegedly missing elements. Not only did that approach deprive the applicant of an opportunity to remedy the supposed defects of the applications and re-submit them, but also it ran counter to the express requirement of the domestic law that any refusal must be reasoned. By not stating clear reasons for rejecting the applications for re-registration submitted by the applicant, the Moscow Justice Department acted in an arbitrary manner. Consequently, the Court considers that that ground for refusal was not "in accordance with the law".
92. Examining the applicant's complaint for a second time, the District Court advanced more specific reasons for the refusal, the first of them being a failure to produce the original charter, registration certificate and the document indicating the legal address […]. Furthermore, the Court considers that the requirement to enclose originals with each application would have been excessively burdensome, or even impossible, to fulfil in the instant case. The Justice Department was under no legal obligation to return the documents enclosed with applications it had refused to process and it appears that it habitually kept them in the registration file. As there exists only a limited number of original documents, the requirement to submit originals with each application could have the effect of making impossible re-submission of rectified applications for re-registration because no more originals were available. This would have rendered the applicant's right to apply for re-registration as merely theoretical rather than practical and effective as required by the Convention […]. It was pointed out by the applicant, and not contested by the Government, that the Moscow Justice Department had in its possession the original charter and registration certification, as well as the document evidencing its address, which had been included in the first application for re-registration in 1999 and never returned to the applicant. In these circumstances, the District Court's finding that the applicant was responsible for the failure to produce these documents was devoid of both factual and legal basis.
93. The Nikulinskiy District Court also determined that the applicant had not produced information on the basic tenets of creed and practices of the religion. The Court has previously found that the refusal of registration for a failure to present information on the fundamental principles of a religion may be justified in the particular circumstances of the case by the necessity to determine whether the denomination seeking recognition presented any danger for a democratic society […]. The situation obtaining in the present case was different. It was not disputed that the applicant had submitted a book detailing the theological premises and practices of Scientology. The District Court did not explain why the book was not deemed to contain sufficient information on the basic tenets and practices of the religion required by the Religions Act. The Court reiterates that, if the information contained in the book was not considered complete, it was the national courts' task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents […]. This had not, however, been done. Accordingly, the Court considers that this ground for refusing re-registration has not been made out.
94. […] In any event, as the Court has found above, the applicant's failure to secure re-registration within the established time-limit was a direct consequence of arbitrary rejection of its earlier applications by the Moscow Justice Department."
3. The CoE handbook "The administration and you"
CoE (ed.), The administration and you (1st edition 1996/1997), pp. 21 ff.:
"V – Objectivity and impartiality
25. All the factors relevant to a particular administrative act should be taken into account, while giving each its proper weight. Factors which are not relevant must be excluded from consideration.
26. An administrative act must not be influenced by the private or personal interests or prejudices of the person taking it.
27. Therefore, no civil servant or employee of an administrative authority should be involved in the taking of an administrative act in a matter concerning his or her own financial or other interests, or those of his or her family, friends or opponents or in any appeal against an administrative act which he himself or she herself has taken, or where other circumstances undermine his or her impartiality.
27.1. Comment: “Friends or opponents” in the sense of this principle are persons towards whom the official involved in the taking of the administrative act has a positive or negative predisposition. The notion implies a close relation between the official and the private person concerned, be it an ongoing or a former relation (example : divorced spouse).
28. Even the appearance of bias should be avoided."
CoE (ed.), The administration and you (2nd edition 2018), p. 14:
"Principle 3 – Objectivity and impartiality
Public authorities shall exercise their powers having regard to relevant matters only. They shall not act in a biased manner or be perceived to do so..
[...]
Commentary
All factors relevant to a particular administrative decision should be taken into account by a public authority when making its decision, with each factor given its
proper weight. Factors that are not relevant must be excluded from consideration. An administrative decision must not be influenced by the personal interests or prejudices of the public official making the decision. Even the appearance of bias must be avoided.
Public authorities have a responsibility to ensure their officials carry out their duties in an impartial manner irrespective of their personal beliefs and interests. No public official should be involved in an administrative decision that concerns his or her own financial or other personal interests, or those of his or her family, friends or opponents.
He or she should not be involved in any appeal against an administrative decision that he or she has taken. Other circumstances may arise which could undermine his or her impartiality, for example in the case of “friends or opponents” towards whom a public official has a positive or negative predisposition, or with whom the official has a close relationship (for example, a divorced spouse).
Moreover, public officials are subject to inherent obligations in the exercise of their public functions. These obligations include discretion, accountability, neutrality and, more generally, loyalty to democratic institutions and respect for the rule of law. In order to avoid conflicts of interest and corruption, public officials may be subject to restrictions regarding second jobs and participation in political activities
CoE (ed.), The administration and you (1st edition 1996/1997), pp. 21 ff.:
"I – Access to public services
33. Everyone has the right to make representations to an administrative authority which has a corresponding obligation to accept and deal with them properly. The proper way of dealing with a representation depends on its nature and is defined by domestic law.
33.1. Comment: Many constitutions expressly grant a “right to petition” which includes the right to make representations to the administrative authorities.
33.1. Comment: The term “representation” is meant to comprise all kinds of more or less formal requests, applications, petitions, complaints, etc., which are
brought before the administrative authorities, be it in writing or orally.
34. Where a formal representation (request or complaint) is made with a view to obtaining or safeguarding a benefit to which the private person is legally entitled, domestic law may request :
(i) that the private person make it within specified time-limits, which must be reasonable ;
(ii) that the administrative authorities take a formal act in response; time-limits can be fixed as to when that response has to be given by the administrative authorities [...].
35. Even an informal representation :
(i) must not be refused without being examined ; and
(ii) should give rise to a response by the administrative authorities unless it is manifestly frivolous or absurd.
36. The administrative authority shall, as necessary, provide guidance on how to initiate proceedings and how to proceed in a matter falling within its competence.
(i) Where a representation is made to an administrative authority which is not the competent one, that authority shall, where this can reasonably be expected, transmit it to the competent administrative authority and notify the interested person thereof.
(ii) The proper forms for the different types of representations are defined by domestic law. If a representation is not made in the proper form, the administrative authority has the duty to accept it and, if necessary, either assist the private person in putting it into the proper form or give the necessary advice.
(iii) The administrative authority should be ready to provide information which allows the private person :
– to find the most efficient way to achieve his or her aim ;
– to assess his or her chances for obtaining that aim.
36.1. Comment: The need of the private person to obtain guidance for communicating with the authority forms the basis for providing guidance. Therefore the person in need of guidance has to take the initiative by asking for advice from the authority. However, the person’s factual need to receive advice determines the scope of the administrative authority’s duty to provide guidance. Guidance should be provided to such an extent that the person is capable of meeting the requirements set by the procedure. In some cases the very fact of a private person contacting the administrative authority should be interpreted by it as a request for advice. Namely, there should be a liberal attitude by the administrative authority as regards the provision of information which it should give only “upon request” [...]. The overall principle is that administrative authorities must be friendly with private persons and, as a general attitude, “be at their service”.
36.2. Comment re (i): Rejection instead of transmission might be reasonable, for example, if the competent administrative authority cannot clearly be
identified or belongs to a totally different branch of the administration.
36.3. Comment re (ii): Guidance includes only giving various kinds of advice, whereas drawing up documents on behalf of a private person, for instance, does not fall within the tasks of an administrative authority, unless otherwise specified in domestic law (as it can be, for instance, in the domain of social affairs).
36.4. Comment re (ii): One aspect of the proper form is the language used for the representation. Representations made in a foreign or a minority language
should be accepted and properly dealt with to the extent possible where the private person is not able to use the official language of the competent administrative authority. To what extent the deliberate use of minority languages in the relations with the administrative authorities is accepted is subject to rules of domestic law.
36.5. Comment re (iii): The kind of information envisaged here is information on the relevant administrative guidelines, on established interpretations of the relevant legal provisions, on the practice of the office in question, etc. The civil servant providing guidance has to act without risking his impartiality. Guidance should not take the form of advocacy, which would, in fact, disqualify the authority from handling the case. Guidance must carefully respect the principle of equality between the parties.
37. Administrative procedures shall, as far as practicable, be in a form which minimises the costs of participation therein for the person concerned."
CoE (ed.), The administration and you (2nd edition 2018), pp. 27 f.:
"Principle 8 – Access
Public authorities shall entertain and respond to requests for administrative decisions from individuals in relation to matters within their competence and in relation to which the individuals concerned have a legitimate interest, including the possibility of initiating an administrative procedure.
[...]
Commentary
Everyone has a right to request public authorities to make decisions on matters within their competence, particularly where services are provided to individuals
entitled to benefit.
Public authorities must make information on their competences available. They must also provide information on how individuals can make specific applications and include guidance on how forms are to be completed along with the procedures to be followed. Where an individual fails to use the appropriate form, this should not be a ground for the automatic rejection of his or her application. Rather, officials of the public authority should assist the individual in completing the appropriate form in the correct manner or otherwise give appropriate guidance to ensure that the public authority has the information it requires to make a properly grounded decision. Public authorities need to adopt a welcoming and supportive attitude towards individuals who approach them with requests for information, particularly in the case of children or other vulnerable persons.
When giving guidance and information, public officials shall act impartially and ensure that all persons are treated equally and receive the same degree of objective information or guidance, particularly where a decision may concern several individuals [...]. Guidance may extend to drawing up or completing
documents but must not include advice as this would compromise the public authority’s neutrality and could possibly give grounds for a successful appeal against
any administrative decision it might make in a matter.
A public authority is required to answer all requests received but does not have to afford the same attention to manifestly abusive requests, particularly where they are repetitive or are made in large numbers. National law will determine the extent to which minority or foreign languages are to be accepted by public authorities and whether requests made in a foreign or a minority language can be accepted and dealt with where the individual is not able to use the official language of the competent public authority. The European Charter for Regional or Minority Languages (ETS No. 148) and the Framework Convention for the Protection of National Minorities (ETS No. 157) provide for undertakings to be given in relation to the use of regional and minority languages by public authorities and public service providers where the number of persons or their traditional presence so requires. The European Charter for Regional or Minority Languages provides that users of regional or minority languages may submit oral or written requests and receive a reply in these languages.
Where an application is made to a public authority which is not the competent authority, it should, where possible, transfer the application to the competent authority and notify the interested person accordingly. The return rather than transfer of an application might be reasonable if the competent authority cannot clearly be identified or belongs to a totally different branch of the public administration. In such cases the individuals concerned should be informed."
CoE (ed.), The administration and you (1st edition 1996/1997), p. 26:
"IV – Time-limits
47. If a procedure requires the taking of a formal administrative act at the end of it, the administrative authority (or authorities) involved must complete the different stages of the procedure and take the act within a reasonable time. This principle applies no matter whether the procedure was initiated by the administrative authority itself or by a private person.
47.1. Comment: Prompt expedition of any procedure for the determination of private persons’ rights and obligations is an intrinsic element of justice. The promptitude requirement in respect of procedures, which is also to be found in Article 6, paragraph 1 of the European Convention on Human Rights, is imposed further by the objective of certainty of the law. In fact, before an act terminating an administrative procedure is taken – and up to the expiry of any time-limits after which failure to act can be considered as equivalent to action – the procedure remains pending and hence the legal situation undefined. Only the administrative act terminating the procedure opens the possibility of taking action against the procedure or the final administrative act (whereas any action taken before that moment can only aim at obliging the administrative authorities to take an administrative act).
48. A failure to act (silence or inaction) must, under national law :
(i) either be considered, after a specified period of time, as equivalent to an act (positive or negative decision) ;
(ii) or be subject to possible control by an administrative or judicial authority competent for that purpose (control for omission)."
CoE (ed.), The administration and you (2nd edition 2018), p. 34:
"Principle 12 – Time limits
Administrative procedures that may lead to a decision affecting the rights or interests of an individual shall be completed within a reasonable time.
[...]
Commentary
Public authorities must make decisions in accordance with time limits prescribed by national law or within a reasonable period of time, thereby ensuring legal certainty for all parties. If an administrative procedure is to proceed in stages it is important that each stage is completed as expeditiously as possible and the final decision is taken within a reasonable period of time from the commencement of the process. The principle applies whether the administrative procedure is initiated by the public authority itself or by an individual. A reasonable time limit depends on the nature of the decision to be made and the administrative procedure to be followed. In all cases, time limits set by public authorities should reflect the principles of good administration.
Where specified time limits are prescribed, they may apply to each stage of the administrative procedure, for example a time frame for lodging applications, filing
any supporting submissions, or replying to queries from the public authority or other persons concerned by the proposed decision. To encourage public authorities to respond to requests from individuals in an expeditious manner, national law should specify a time limit by which a decision must be made, whether negative or positive, and provide for internal or judicial review where the public authority fails to respond to a request or fails to make a decision."
4. The CoE handbook "The administration and you"
1. Principle I of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Right to be heard
(1) In respect of any administrative act of such nature as is likely to affect adversely his rights, liberties or interests, the person concerned may put forward facts and arguments and, in appropriate cases, call evidence which will be taken into account by the administrative authority.
(2) In appropriate cases the person concerned is informed, in due time and in a manner appropriate to the case, of the rights stated in the preceding paragraph."
On this principle I Explanatory memorandum (p. 16 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"15. In conformity with the underlying idea of the resolution - to achieve a high degree of fairness in the relations between the administration and the individual - this principle provides that the person concerned is given an opportunity to be heard during the administrative procedure: he may put forward facts and arguments and, where appropriate, call evidence. The person concerned will thus be enabled to participate in the procedure concerning an administrative act and can defend his rights, liberties and legitimate interests.
The term "right to be heard" is not to be taken literally. The person concerned may present his case in writing or orally, whichever is more appropriate. [...]
19. If the person concerned is to use this entitlement effectively he must be aware of it. The second paragraph therefore requires the administration to inform him - in appropriate cases and in due time; ie in sufficient time to enable him to avail himself of his entitlement - of the possibility to put forward facts, arguments and evidence. This information may be given in any way suitable to the case in question, eg by letter, public notices in the press or by posters displayed at an appropriate place."
See also the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), p. 4:
"The right of an individual to be heard by the administrative organ before it will take a decision affecting him can be considered to offer a double safeguard. On the one hand, it safeguards equity: the individual will thus be called upon to participate in the proceedings concerning the decision an has the possibility of defending his legitimate rights and interests. [...]. On the other hand, the principle of hearing the person concerned provides a safeguard for good administration: it implies that the administration will be fully informed before taking the decision; furthermore it will help to establish a climate of collaboration and trust between the administration and the citizens."
See furthermore the analysis of Principle I of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 46 ff.); for the genesis of Resolution (77)31 in general click here
2. Art. 14 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 14 – Right of private persons to be heard with regard to individual decisions
If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 16; for the genesis of Recommendation CM/Rec(2007)7 in general click here.
ECtHR [Plenary], judgment W v United Kingdom (9749/82) 8 July 1987:
"61. The applicant did not assert that the Authority’s decisions were not "in accordance with the law" or lacked a legitimate aim. The material before the Court contains nothing to suggest that the first of these requirements, as interpreted in the Court’s case-law [...], was not satisfied. Neither is there any evidence that the measures taken were not designed to achieve a legitimate purpose, namely the protection of health or of the rights and freedoms of others.
Debate centred on the question whether the procedures followed had respected the applicant’s family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as "necessary in a democratic society". The applicant and the Commission took the view that the procedures applicable to the determination of issues relating to family life had to be such as to show respect for family life; in particular, according to the Commission, parents normally had a right to be heard and to be fully informed in this connection, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2 (art. 8-2). The Government, as their principal plea, did not accept that such procedural matters were relevant to Article 8 (art. 8) or that the right to know or to be heard were elements in the protection afforded thereby.
62. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect.
On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible: thus, where a child has been taken away from his parents and placed with alternative carers, he may in the course of time establish with them new bonds which it might not be in his interests to disturb or interrupt by reversing a previous decision to restrict or terminate parental access to him. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences.
It is true that Article 8 (art. 8) contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8 (art. 8). Moreover, the Court observes that the English courts can examine, on an application for judicial review of a decision of a local authority, the question whether it has acted fairly in the exercise of a legal power [...].
63. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to secure that their views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them. In fact, the 1983 Code of Practice stresses the importance of involving parents in access decisions [...].
64. There are three factors which have a bearing on the practicalities of the matter. Firstly, as the Commission pointed out, there will clearly be instances where the participation of the natural parents in the decision-making process either will not be possible or will not be meaningful - as, for example, where they cannot be traced or are under a physical or mental disability or where an emergency arises. Secondly, decisions in this area, whilst frequently taken in the light of case reviews or case conferences, may equally well evolve from a continuous process of monitoring on the part of the local authority’s officials. Thirdly, regular contacts between the social workers responsible and the parents often provide an appropriate channel for the communication of the latter’s views to the authority.
In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as "necessary" within the meaning of Article 8 (art. 8)."
ECtHR [GC], judgement K. and T. v. Finland (25702/94) 12 July 2001:
"166. The Court accepts that, when an emergency care order has to be made, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor, as the Government point out, may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness. The Court must however be satisfied that in the present case the national authorities were entitled to consider that in relation to both J. and M. there existed circumstances justifying the abrupt removal of the children from the care of the applicants without any prior contact or consultation. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the applicants and the children, as well as of the possible alternatives to taking the children into public care, was carried out prior to the implementation of such a measure.
167. The Court acknowledges that it was reasonable for the competent authorities to believe that if K. had been forewarned of the intention to take either M. or the expected child away from her care, this, in view of her fragile mental health, could most likely have had dangerous consequences both for herself and for her children (see paragraph 24 above). The Court also accepts as reasonable, in the light of the evidence before the national authorities, their assessment that T. was not capable of coping with the mentally ill K., the expected baby and M. on his own. Likewise, associating only T. in the decision-making process was not a realistic option for the authorities, taking into account the close relationship between the applicants and the likelihood of their sharing information."
ECtHR, judgement Megadat.com SRL v Moldova (21151/04) 8 April 2008:
"73. The Court has also given due consideration to the procedural safeguards available to the applicant company to defend its interests. It notes in the first place that the applicant company was not given an opportunity to appear and explain its position before ANRTI. Procedural safeguards also appear to have failed at the stage of the court proceedings. While the case was not one which required special expediency under the domestic law, the Court of Appeal appears to have acted with particular diligence in that respect. After setting the date of the first hearing, the Court of Appeal acceded to ANRTI’s request to speed up the proceedings and advanced the hearing by two weeks [...]. Not only did the Court of Appeal decide the case in the applicant company’s absence, but it failed to provide reasons for dismissing the latter’s request for adjournment. The Court notes in this connection that the matter to be examined by the Court of Appeal affected the applicant company’s economic survival [...].
79. The arbitrariness of the proceedings, the discriminatory treatment of the applicant company and the disproportionately harsh measure applied to it lead the Court to conclude that it has not been shown that the authorities followed any genuine and consistent policy considerations when invalidating the applicant company’s licences. Notwithstanding the margin of appreciation afforded to the State, a fair balance was not preserved in the present case and the applicant company was required to bear an individual and excessive burden, in violation of Article 1 of Protocol No. 1."
ECtHR, judgement Lombardi Vallauri v Italy (39128/05) 20 October 2009:
"44. Pour apprécier si, en l’espèce, la mesure litigieuse était « nécessaire dans une société démocratique », la Cour devra mettre en balance le droit du requérant à la liberté d’expression, y compris le droit de transmettre des connaissances sans restriction, et l’intérêt qu’a l’Université à dispenser un enseignement suivant des convictions religieuses qui lui sont propres. Ainsi le veut le principe du pluralisme « sans lequel il n’est pas de société démocratique » [...].
45. La Cour rappelle que, dans le domaine de la liberté d’expression, la marge d’appréciation dont jouissent les Etats contractants va de pair avec un contrôle européen qui, en raison de l’importance de cette liberté, maintes fois soulignée par la Cour, doit être strict. Le besoin d’une éventuelle restriction doit donc se trouver établi de manière convaincante [...].
46. Pour rechercher si ce besoin était présent en l’occurrence, il faut déterminer si le requérant a joui de garanties procédurales adéquates, notamment quant à la possibilité de connaître et de contester les raisons de la limite apportée à son droit à la liberté d’expression. Ces garanties concernent non seulement la phase administrative devant le Conseil de faculté, mais aussi celle, ultérieure, du contrôle juridictionnel de la procédure administrative, et en particulier l’efficacité de ce contrôle. A cet égard, il est utile de rappeler que la Cour a déjà conclu à la violation de l’article 10 de la Convention sous son volet procédural lorsque la portée d’une mesure limitant la liberté d’expression était vague ou qu’une telle mesure était motivée par un raisonnement insuffisamment détaillé et que son application n’avait pas fait l’objet d’un contrôle juridictionnel adéquat [...].
47. En ce qui concerne le premier aspect, la Cour relève d’abord que lorsqu’il a décidé d’écarter la candidature du requérant, le Conseil de faculté n’a pas indiqué à l’intéressé, ni même évalué, dans quelle mesure les opinions prétendument hétérodoxes qui lui étaient reprochées se reflétaient dans son activité d’enseignement et comment, de ce fait, elles étaient susceptibles de porter atteinte à l’intérêt de l’Université consistant à dispenser un enseignement inspiré de ses convictions religieuses propres.
48. Ensuite, d’une manière plus générale, la Cour remarque que la teneur même de ces « positions » est restée totalement inconnue. La seule mention à cet égard figure dans la lettre de la Congrégation (dont la partie pertinente est citée dans la lettre envoyée par le président de l’Université au doyen de la faculté de droit), et vise certaines positions de M. Lombardi Vallauri qui « s’opposent nettement à la doctrine catholique » [...].
49. La Cour ne peut manquer de relever le caractère vague et incertain d’une telle indication et de constater que la décision du Conseil de faculté n’est étayée par aucune autre motivation que la simple référence au refus d’agrément du Saint-Siège, refus dont le contenu est resté secret. Ce constat n’est en rien diminué par l’entretien entre le requérant et un interlocuteur de la Congrégation, cet entretien ayant eu lieu de façon informelle, sans qu’aucun compte-rendu officiel ne soit dressé."
4. The CoE handbook "The administration and you"
See CoE-handbook "The administration and you"
- 1st edition 1996/1997, para. 38 ff. (pp. 23 ff.)
- 2nd edition 2018, pp. 31 ff.
1. Principle II of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Access to information
At his request, the person concerned is informed, before an administrative act is taken, by appropriate means, of all available factors relevant to the taking of that act."
On this Principle II Explanatory memorandum (p. 20 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"20. This principle complements Principle I [right to be heard]; it is aimed at enabling the person concerned effectively to exercise his right to be heard by granting him access to the relevant factors on which the administrative act is intended to be based. [...]
24. The scope of the principle has been limited to pending cases. There might, of course, be a need for the person concerned to have access to information also after an administrative act has been taken, for instance for the purpose of having the act reviewed, and the principle does not exclude this "
See also the 'pilot study' preceding this resolution CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), p. 11:
"The importance of this question [access to information] is evident: if the citizen has no access to the various relevant facts which the administration has in its possession, he cannot successfully intervene in the proceedings and defend his rights. At the same time, the subsequent judicial control may become meaningless when the citizen cannot duly and in proper time set out before the judge the grounds of his complaint because he had no knowledge of the file."
See furthermore the analysis of Principle II of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 48 ff.); for the genesis of Resolution (77)31 in general click here
ECtHR, judgement K.A. v Finland (27751/95) 14 January 2003:
"105. Moreover, this Court has found it essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care. A parent may claim an interest in being informed of the nature and extent of the allegations of abuse made by his or her child or by persons outside the family. This is relevant not only to the parent’s ability to put forward those matters militating in favour of his or her capability in providing the child with proper care and protection but also to enable the parent to understand and come to terms with traumatic events affecting the family as a whole. Situations may arise where a parent can claim no absolute right to obtain disclosure of, for example, a child’s statement, if a careful consideration leads to the conclusion that such disclosure could place the child at risk. As a general rule, however, the positive obligation on the Contracting State to protect the interests of the family requires that all case-material be made available to the parents concerned, even in the absence of any request by them (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 78-83, ECHR 2001-V, and P., C. and S. v. the United Kingdom, no. 56547/00, §§ 136-138 [...])"
V. Right to Representation and Assistance
3. The CoE handbook "The administration and you"
1. Principle III of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Assistance and representation
The person concerned may be assisted or represented in the administrative procedure"
On this Principle II Explanatory memorandum (p. 18 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"25. The purpose of this principle is to enable the person concerned to be assisted or represented in the administrative proceedings, it being understood that he is always free to conduct his case himself if he so desires. The principle does not deal with the question of any obligation for the person concerned to accomplish himself certain acts in the procedure or to take part himself in certain phases of the procedure.
26. It is to be noted that the principle does not deal with the nature of the assistance or representation:. ie qualifications or conditions of the assistant or the legal representative.
27. Nor does it deal with free legal aid, ie the provision at public expense, to the person concerned of legal aid or advice in connection with procedures before an administrative authority [...]."
See furthermore the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), pp. 16 ff. and the analysis of Principle III of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 50 ff.); for the genesis of Resolution (77)31 in general click here
2. Art. 14 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 14 – Right of private persons to be heard with regard to individual decisions
If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 16; for the genesis of Recommendation CM/Rec(2007)7 in general click here
3. The CoE handbook "The administration and you"
See CoE-handbook "The administration and you"
- 1st edition 1996/1997, para. 46 (p. 25)
- 2nd edition 2018, pp. 33 f.
"49. The Court's task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court's supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient". In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts."
ECtHR, judgment Church of Scientology Moscow v. Russia (18147/02) 5 April 2007:
"87. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts [...]."
ECtHR, judgement Alekseyev v Russia (4916/07) 21 October 2010:
"85. The Court is therefore unable to accept the Government's claim to a wide margin of appreciation in the present case. It reiterates that any decision restricting the exercise of freedom of assembly must be based on an acceptable assessment of the relevant facts [...]. The only factor taken into account by the Moscow authorities was the public opposition to the event, and the officials' own views on morals.
86. The mayor of Moscow, whose statements were essentially reiterated in the Government's observations, considered it necessary to confine every mention of homosexuality to the private sphere and to force gay men and lesbians out of the public eye, implying that homosexuality was a result of a conscious, and antisocial, choice. However, they were unable to provide justification for such exclusion. There is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or "vulnerable adults". On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily. This was exactly the kind of debate that the applicant in the present case attempted to launch, and it could not be replaced by the officials spontaneously expressing uninformed views which they considered popular. In the circumstances of the present case the Court cannot but conclude that the authorities' decisions to ban the events in question were not based on an acceptable assessment of the relevant facts.
87. The foregoing considerations are sufficient to enable the Court to conclude that the ban on the events organised by the applicant did not correspond to a pressing social need and was thus not necessary in a democratic society."
VII. Form and Notification of Administrative Decisions
3. The CoE handbook "The administration and you"
1. Article 17 (1) and Article 18 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 17 – Form of administrative decisions
(1) Administrative decisions shall be phrased in a simple, clear and understandable manner.
(2) [...].Article 18 – Publication of administrative decisions
(1) Administrative decisions shall be published in order to allow those concerned by these decisions to have an exact and comprehensive knowledge of them. Publication may be through personal notification or it may be general in nature.
(2) Those concerned by individual decisions shall be personally notified except in exceptional circumstances where only general publication methods are possible. In all cases, appeal procedures including time limits shall be indicated."
See on the discussion of Articles 17 and 18 the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 26 ff. and para. 30 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
2. Principle V of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Indication of remedies
Where an administrative act which is given in written form adversely affects the rights, liberties or interests of the person concerned, it indicates the normal remedies against it, as well as the time-limits for their utilization."
For the duty to indicate remedies as a pan-European general principle of good administration click here; for the genesis of Resolution (77)31 in general click here
3. The CoE Handbook "The administration and you"
CoE (ed.), The administration and you (1st edition 1996/1997), p. 26 f.:
"V – Notification, statement of reasons and indication of remedies
49. The administrative act must be notified to all persons concerned.
49.1. Comment: Notification normally means the personal information of the person or persons concerned. In the case of administrative procedures concerning a large number of persons, the notification of the administrative act taken and of the possible remedies against it [...] may be made, for certain categories of persons concerned, not by personal information but by public notification.
49.2. Comment: In most legal systems, an administrative act which has not been regularly notified is not invalid but, as long as the person concerned has not been regularly notified of it, it can not produce its legal effects for that person.
49.3. Comment: This [...] and the following principles under this section [statement of reasons and indication of remedies] apply mainly to formal decisions taken by the administrative authorities [...] whereas they will often not be applicable to administrative measures of a more factual kind (also covered by the definition of administrative acts)."
CoE (ed.), The administration and you (2nd edition 2018), p. 36 f.:
"Principle 13 – Form and notification of administrative decisions
Administrative decisions shall be phrased in a simple, clear and understandable manner. [...]. Where a decision adversely affects the rights or interests of an individual the decision shall include information about available remedies and appeal procedures, and relevant time limits.
Individuals shall be notified personally of the decision. Only in exceptional circumstances, or if the decision concerns a large number of persons, may general publication methods be used.
[...]
Commentary
The form and notification of an administrative decision is particularly important in the context of formal decisions taken by public authorities. In most legal systems, an administrative decision that has not been properly notified is valid but, for so long as the person concerned has not been personally notified, it cannot have legal effect in relation to him or her."
ECtHR, judgement de Geouffre de la Pradelle v. France (12964/87), 16 December 1992
30. In the Government’s submission, decisions to designate an area as being of outstanding beauty formed a category of administrative acts sui generis; they were directed at a given geographical area rather than at property owners themselves and, like general regulatory decisions, were of public, impersonal effect. For such decisions, the Government continued, publication in the Official Gazette was itself sufficient to cause the time allowed for appealing to begin to run. Furthermore, Article 7 of the decree of 13 June 1969 required notification only if the designation decree imposed any specific restrictions on a given tract of land […]; the decree in issue did not, however, contain any such restrictions. The Government conceded that these rules did limit public access to the courts to some degree, but argued that such a limitation was justified by the need to establish a simple, fair process for private individuals while ensuring lasting protection for the common national heritage. Lastly, the choice of time for notifying the decision to the applicant after it had been published (see paragraph 12 above), although psychologically unfortunate for him, was purely coincidental and had no legal consequences since in this instance notification was a purely optional formality.
31. In the instant case the Court does not have to assess, as such, the French system of classifying administrative acts and the procedure for appealing against them; it must confine its attention as far as possible to the issue raised by the specific case before it […]. It must nevertheless look at the provisions of the decree of 13 June 1969 and the circular of 19 November 1969 in so far as the application of them may have given rise to the uncertainty in Mr de Geouffre de la Pradelle’s mind and accounted for the time he took to apply to the Conseil d’État.
32. The rule in Article 6 of the decree of 13 June 1969 […] that designation decisions shall be published nationally offers undeniable advantages; as the Government pointed out, it is intended to provide for legal stability and to simplify the formalities for implementing such measures, particularly where they cover extensive tracts of land in multiple ownership.
33. Like the applicant, however, the Court cannot but be struck by the extreme complexity of the positive law resulting from the legislation on the conservation of places of interest taken together with the case-law on the classification of administrative acts. In view also of the proceedings that actually took place in respect of the applicant, which were spread over a period of not less than two and a half years (7 October 1980 - 4 July 1983), such complexity was likely to create legal uncertainty as to the exact nature of the decree designating the Montane valley and as to how to calculate the time-limit for bringing an appeal.
The Court notes in the first place the numerous methods of publication provided for in the decree of 13 June 1969 […]: for listing orders, either individual notification or publication, depending, inter alia, on a numerical criterion (Article 2); and for designation decisions, publication in the Official Gazette if they do not contain any special directions that would alter the state or change the use of the site (Article 6), otherwise notification (Article 7).
Furthermore, the scheme in issue covered a limited area and affected eight identifiable property owners in all […]. Mr de Geouffre de la Pradelle and the other seven were, moreover, individually informed that designation proceedings had been set in motion and that a public inquiry was being opened […]. Although optional […], these notifications served the authorities’ interests, as the Government acknowledged: the purpose of the first notification was to "freeze" the state of the site for a year […], while the second notification was intended to force property owners to voice any dissent within twenty days, failing which they would be deemed to have consented […]. The property owners could reasonably infer from them that the outcome of the proceedings, whether favourable or unfavourable, would likewise be communicated to each of them without their having to peruse the Official Gazette for months or years on end.
34. In sum, the applicant was entitled to expect a coherent system that would achieve a fair balance between the authorities’ interests and his own; in particular, he should have had a clear, practical and effective opportunity to challenge an administrative act that was a direct interference with his right of property. In this connection, the Court points out that, before the designation proceedings were set in motion, he had obtained the appropriate authorities’ consent to his scheme for a miniature hydroelectric power-station […].
In addition, the Prefect did not notify him of the impugned decree, an extract of which had been reproduced in the Official Gazette of 12 July 1983, until two months and one day later […]. Mr de Geouffre de la Pradelle applied to the Conseil d’État […], but it dismissed his application as being out of time. Admittedly it had already held that where a decree designating an area as being of outstanding beauty was concerned, the time allowed for appealing started to run from the moment of publication in the Official Gazette even in the event of subsequent notification, but this was, at the time, an isolated judgment, of which only a summary had appeared in the Recueil Lebon (Conseil d’État, Dames Moriondo and Carro judgment of 29 November 1978, pp. 881 and 908).
35. All in all, the system was therefore not sufficiently coherent and clear. Having regard to the circumstances of the case as a whole, the Court finds that the applicant did not have a practical, effective right of access to the Conseil d’État.
There has accordingly been a breach of Article 6 para. 1 (art. 6-1)."
ECtHR, decision Geffre v. France (19732/17) 16 February 2021
"The Court notes that it is established that the ministerial order for the listing of the land was published in two newspapers, one of which was a daily newspaper, that were distributed in the administrative district of La‑Flotte-en-Ré. The order was republished no more than a month later. In addition, it was displayed at La-Flotte-en-Ré town hall, some seventeen kilometres from La Rochelle where, it seems, the applicant has lived throughout. It was also published in the Recueil des actes administratifs du département de la Charente-Maritime (La Rochelle is the principal town in that département).
As the Court has previously stated, the rule permitting general publication of listing orders offers undeniable advantages (see, mutatis mutandis, de Geouffre de la Pradelle, cited above, p. 42, § 32); as the Government have pointed out, it is intended to provide for legal stability and to simplify the formalities for implementing such measures, particularly where they cover extensive tracts of land in multiple ownership.
It should also be borne in mind that the French government have implemented various measures as a result of de Geouffre de la Pradelle. In that judgment, the Court held that there had been a violation of Article 6 of the Convention after the Conseil d'Etat had dismissed an appeal as being out of time when the applicant made a mistake regarding the date when the time allowed for appealing started to run owing to uncertainty as to whether the administrative act was individual or regulatory in nature. The Court found that the complexity of the legal position was likely to create legal uncertainty as to the exact nature of the designation decree and as to how to calculate the time-limits for appealing to the Conseil d'Etat. The French government have now introduced a new practice in order to ensure the systematic general publication of designation orders (publication in the Official Gazette, display at the town hall and in places used for that purpose for a month, publication of the designation decision in two newspapers, at least one of which is a daily newspaper that is distributed in the administrative district concerned) in order to ensure that interested parties may avail themselves fully of the time allowed for lodging appeals with the Conseil d'Etat. In its Resolution DH(2000)43 of 10 April 2000 concerning de Geouffre de la Pradelle, the Committee of Ministers declared that the French government had thereby fulfilled their obligations under former Article 53 of the Convention.
Lastly, having examined the facts of the present case, the Court finds that the machinery of general publication used by the authorities constitutes a coherent system that strikes a fair balance between the interests of the authorities and of the property owners. In particular, it affords the latter a clear, practical and effective opportunity to challenge administrative acts. In the light of all the circumstances of the case, the Court finds that the applicant has not suffered a disproportionate interference with his right of access to a court and that, accordingly, there has been no infringement of the essence of his right to a court, as guaranteed by Article 6 § 1. Consequently, there has been no violation of that provision."
43. The Court has held that the right of access to court under Article 6 § 1 of the Convention entails the entitlement to receive adequate notification of administrative and judicial decisions, which is of particular importance in cases where an appeal may be sought within a specified time‑limit (see, mutatis mutandis, Šild v. Slovenia (dec.), no. 59284/08, § 30, 17 September 2013). [...].
46. The Court notes that notification of both the intention of the Provincial Executive to issue a new permit to the motocross association and of its decision to that effect was given solely by electronic means. It was possible for interested parties within the meaning of Section 1:2(1) of the General Administrative Law Act [...] to lodge an appeal against that decision, provided they had first submitted their views on the draft decision (see paragraph 19 above). Both the submission of views and the lodging of an appeal were subject to a time-limit [...].
47. While it is not for the Court to determine the manner in which notifications of the type at issue are to be published, it follows from the abovementioned principles that where an appeal lies against a decision by an administrative authority which may be to the detriment of directly affected third parties, a system needs to be in place enabling those parties to take cognisance of such a decision in a timely fashion. This requires that the decision, or relevant information about it, be made available in a pre‑determined and publicised manner that is easily accessible to all potentially directly affected third parties. Provided sufficient safeguards are in place to achieve such accessibility, it falls in principle within the State’s margin of appreciation to opt for a system of publication solely by electronic means.
48. Turning to the facts of the present case, the Court finds, firstly, that the Provincial Executive’s use of electronic means for publishing notifications was sufficiently coherent and clear for the purpose of allowing third parties to become aware of decisions that could potentially directly affect them. Thus, at the relevant time, a statutory provision – section 2(1) of the Electronic Notification Ordinance – provided for the possibility of notifying the Provincial Executive’s (draft) decisions solely by electronic means [...]. The notification of the adoption of the Ordinance had been published in the Official Gazette, and the text of the Ordinance had been published in the Gelderland Provincial Bulletin as well as on the provincial website [...]. Moreover, the Electronic Notification Ordinance codified a practice which had been in place since 1 October 2011, and to which the attention of the public had been drawn by means of advertisements in local newspapers at the time [...].
49. It is further noted that the text of the Electronic Notification Ordinance did not explicitly indicate where notifications were to be published online; however, the explanatory notes to the Ordinance stated that notifications could be published on the Gelderland provincial website [...] and, as submitted by the Government [...], notifications of the type at issue had indeed been published on that website until 2016. Although the applicants disputed, both at the domestic level and before this Court, whether the notifications of the draft decision and of the actual decision had been published on the provincial website [...], the Court notes that the Administrative Judicial Division had found it sufficiently established, in the light of the arguments and evidence submitted to it, that the notifications had been published on that website [...]. In this connection the Court reiterates that, in accordance with Article 19 of the Convention, its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact allegedly committed by a national court or to substitute its own assessment for that of the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Accordingly, the Court cannot question the assessment of the domestic courts on this issue unless there is clear evidence of arbitrariness, of which there is no appearance in the instant case [...].
50. The Court accepts the Government’s submission that electronic communication between the administrative authorities and citizens may contribute to the aim of a more accessible and better functioning administration [...]. It must ascertain whether, given the facts of the case, a fair balance was struck between, on the one hand, the interest of the community as a whole in having a more modern and efficient administration and, on the other hand, the interests of the applicants.
51. The Court observes that, under Dutch law, notifications that are addressed to specific individuals may only be published solely by electronic means when the individuals concerned have indicated that they can be adequately reached in that manner [...]. Given that decisions of administrative authorities may, in addition, potentially concern a large number of interested parties who it may not be possible to identify in advance, the Court agrees with the Government that electronic notification of administrative authorities’ decisions by electronic means may enable a large proportion of the general public to become acquainted with those decisions. In that regard, the Court observes that Dutch law specifies that restricting the publication of notifications that are not addressed to specific individuals exclusively by electronic means is only permitted when a statutory basis exists for it (see section 2 (14)(2)[...].
52. The Court considers that it must nevertheless be borne in mind that a practice of notifying the public solely by electronic means of decisions that may potentially affect them and against which they may wish to object or appeal runs the risk of not reaching citizens who do not have access to the Internet or who are computer illiterate. It can, however, not be overlooked that in 2013 the Internet penetration rate in the Netherlands was high, with more than 92 percent of citizens over the age of 12 having access to it [...]. Moreover, the applicants in the present case have not argued that they themselves did not have access to a computer or to the Internet or that they were computer illiterate and that they were, for that or those reasons, unable to find the (draft) decisions online [...]. In those circumstances, the Court is not persuaded by the applicants’ argument to the effect that publishing the notifications of the draft decision and the decision in a free local newspaper would have provided better safeguards of reaching potentially affected parties than publishing on the Gelderland provincial website [...]. In that context it notes once more that notifications of this type have already been published solely by electronic means since 1 October 2011, and that this practice was publicised in local newspapers at the time of its introduction (see paragraph 23 above). The fact that this announcement had apparently escaped the applicants’ attention supports the Government’s contention that publications in local newspapers also do not constitute an infallible method of reaching every potentially affected party [...]. The Court considers that it was not unrealistic to expect the applicants to consult the provincial website regularly for notifications of (draft) decisions that might affect them [...].
53. In the present case, the Court is therefore satisfied that the system of electronic publication used by the Gelderland Provincial Executive constituted a coherent system that struck a fair balance between the interests of the community as a whole and the applicants. The applicants have not put forward any arguments that would allow the Court to conclude that they were not afforded a clear, practical and effective opportunity to comment on the draft decision and to challenge the decision given by the Provincial Executive. In the light of all the circumstances of the case and the safeguards identified, the Court finds that the national authorities did not exceed the margin of appreciation afforded to the State under the Convention (see paragraph 47 above) and that the applicants have not suffered a disproportionate restriction of their right of access to a court.
54. There has accordingly been no violation of Article 6 § 1 of the Convention."VIII. Obligation of the Administration to Give Reasons for its Decisions
4. The CoE handbook "The administration and you"
1. Principle IV of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Statement of Reasons
Where an administrative act is of such nature as adversely to affect his rights, liberties or interests, the person concerned is informed of the reasons on which it is based. This is done either by stating the reasons in the act, or by communicating them, at his request, to the person concerned in writing within a reasonable time."
On this Principle IV Explanatory memorandum (p. 18 f. of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"28. When an administrative act is of such a nature as adversely to affect the rights, liberties or interests of the person concerned, it is essential - particularly in view of a possible appeal - that it should be reasoned. Otherwise, the person concerned is not in an adequate position to decide if it is worthwhile challenging the act.
29. The question of how detailed the reasons should be and of how they should be presented is left to the administration which will determine the extent of reasoning according to the nature of the administrative act, bearing in mind the purpose of the statement of reasons, which is to enable theperson concerned to evaluate the act.
30. One way of communicating the reasons is to state them in the act or in the document by which the act is conveyed to the person concerned. Another way of meeting the needs of the person concerned is to grant him, on request, a statement of the reasons. To that end, the principle provides for the possibility of communicating the reasons lat3r on to the person concerned at his request. Such a communication should be in writing, and it should be done within a reasonable time. What is to be considered a reasonable time will depend interalia on the time-limit for lodging an appeal.
31. The principle is subject to the general provison [...]. Moreover, an indication of the reasons might be unnecessary because they are already known to the person concerned."
See also the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), pp. 19 ff.
"This question is of considerably practical importance. If the citizen does not know the grounds on which the organ has based its decision, he is not in an adequate position to challenge it. Similary it is important for the hierachical superior who examines an appeal by the person concerned or who intervenes ex officio, to know the reasons for the decision. [...].
The statement of reasons in administrative decisions has moreover and "educational virtue": in obliging the administrative body to set out the reasons for its decisions, one obliges it to account for the way in which the case has to be dealt with, to formulate its opinions and to express them."
See furthermore the analysis of Principle VI of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 52 ff.); ; for the genesis of Resolution (77)31 in general click here
2. Article 17 (2) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 17 – Form of administrative decisions
(1) [...].
(2) Appropriate reasons shall be given for any individual decision taken, stating the legal and factual grounds on which the decision was taken, at least in cases where they affect individual rights."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 26 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
ECtHR, judgement Frizen v Russia (58254/00) 24 March 2005:
"33. In this connection the Court recalls that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be “lawful”: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. It follows that the issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary [...].
34. The Court considers that the existence of public-interest considerations for the forfeiture of the applicant's vehicle, however relevant or appropriate they might have appeared, did not dispense the domestic authorities from the obligation to cite a legal basis for such decision. It observes that the domestic courts did not refer to any legal provision authorising the forfeiture, either in the criminal proceedings against the applicant's husband or in the civil proceedings which she initiated.
ECtHR, judgment Church of Scientology Moscow v Russia (18147/02) 5 April 2007:
"91. The Court observes that the Moscow Justice Department refused to process at least four applications for re-registration, referring to the applicant's alleged failure to submit a complete set of documents […]. However, it did not specify why it deemed the applications incomplete. Responding to a written inquiry by the applicant's president, the Moscow Justice Department explicitly declined to indicate what information or document was considered missing, claiming that it was not competent to do so […]. The Court notes the inconsistent approach of the Moscow Justice Department on the one hand accepting that it was competent to determine the application incomplete but on the other hand declining its competence to give any indication as to the nature of the allegedly missing elements. Not only did that approach deprive the applicant of an opportunity to remedy the supposed defects of the applications and re-submit them, but also it ran counter to the express requirement of the domestic law that any refusal must be reasoned. By not stating clear reasons for rejecting the applications for re-registration submitted by the applicant, the Moscow Justice Department acted in an arbitrary manner. Consequently, the Court considers that that ground for refusal was not "in accordance with the law".
ECtHR, judgement Mirolubovs v Lithuania (798/05) 15 September 2009:
"87. A cet égard, la Cour relève le caractère extrêmement sommaire de la décision prise par la Direction le 23 août 2002. La Cour a déjà jugé que, dans une situation similaire à la présente, lorsqu’un conflit interne déchire une communauté religieuse, les autorités étatiques doivent adopter une approche particulièrement sensible et délicate [...]. Or, en l’occurrence, la décision litigieuse se limitait à dire qu’elle avait été prise « vu l’avis de la division juridique de la Direction » – sans dévoiler le contenu dudit avis –, et « puisque les documents reçus [étaient] conformes aux actes législatifs de la République de Lettonie ». Aux yeux de la Cour, une telle motivation ne saurait passer pour suffisante. [...]."
ECtHR, judgement Adzhigovich v Russia (23202/05) 8 October 2009:
"32. Since the Presidium held that the object of the offence was the procedure of customs declaration rather than the money as a physical object and also found on the facts that the applicant's money had not been criminally obtained, it remains unclear what legal provision could be applied to the maintenance of the confiscation order in respect of the remaining amount. In fact, as regards that amount, the Presidium's decision did nothing to remedy the lacunae in the legal reasoning of the first-instance, appeal and supervisory-review courts. In this connection the Court emphasises that the existence of public-interest considerations for the contested measure, however relevant or appropriate they might have appeared, did not dispense the domestic authorities from the obligation to cite a specific legal basis for such decision [...].
33. As regards the amount which the Presidium determined should be returned to the applicant, the Court notes that the authorities did not invoke any legal grounds for its continued retention beyond a reference to the fact that it was "missing from the evidence storage room at the Sheremetyevo airport".
34. Having regard to the Russian authorities' consistent failure to indicate a legal provision that could be construed as the basis for the confiscation of the applicant's property and their refusal to return the money which the Presidium determined should be repaid to the applicant, the Court finds the impugned interference with the applicant's property rights cannot be considered “lawful” within the meaning of Article 1 of Protocol No. 1. This finding makes it unnecessary to examine whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights."
4. The CoE handbook "The administration and you"
See CoE-handbook "The administration and you"
- 1st edition 1996/1997, para. 51 (p. 27)
- 2nd edition 2018, pp. 35 f.
IX. Procedural Rights and Obligations in Enforcement Proceedings
1. Article 20 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 20 – Execution of administrative decisions
(1) Public authorities shall be responsible for the execution of administrative decisions falling within their competence.
(2) An appropriate system of administrative or criminal penalties shall, in principle, be established to ensure that private persons comply with the decisions of the public authorities.
(3) Public authorities shall allow private persons a reasonable time to perform the obligations imposed on them, except in urgent cases where they shall duly state the reasons for this.
(4) Enforced execution by public authorities shall be expressly prescribed by law. Private persons subject to the execution of a decision are informed of the procedure and of the reasons for it. Enforced execution measures shall be proportionate.
See on the discussion of Article 20 the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para. 35 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
2. Part I ("Execution of administrative decisions regarding private persons") of Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law
"The Committee of Ministers [...]
Considering that it is necessary to maintain the trust of private persons in the administrative and judicial system and that, for this reason, both decisions by administrative authorities entailing obligations for private persons and judicial decisions in the field of administrative law recognising rights for private persons should be executed;
Considering that the action of the administrative authorities presumes that their decisions are efficiently implemented by private persons;
Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;
[...].
Recommends that the governments of member states ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation."Appendix
I. Execution of administrative decisions regarding private persons
Scope of application: the principles contained in this part apply to 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, either physically or legally.
Implementation
a. Member states should provide an appropriate legal framework to ensure that private persons comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by judicial authorities of their rights and interests.
b. Where it is not provided for by law that the introduction of an appeal against a decision entails automatic suspension, private persons should be able to request an administrative or judicial authority to suspend the implementation of the contested decision in order to ensure the protection of their rights and interests.
c. This possibility should be exercised within reasonable time limits in order to avoid unnecessarily blocking the action of the administrative authorities and to ensure legal certainty.
d. In deciding on the request for suspension, the public interest and the rights and interests of third persons should be taken into account by the administrative authority and, unless it is excluded by law, by the judicial authority.
Enforcement
a. The use of enforcement by administrative authorities should be subject to the following guarantees:
i. enforcement is to be expressly provided for by law;
ii. private persons against whom the decision is to be enforced are to be given the possibility to comply with the administrative decision within reasonable time except in urgent duly justified cases;
iii. the use of and the justification for enforcement are to be brought to the attention of the private persons against whom the decision is to be enforced;
iv. the enforcement measures used including any accompanying monetary sanctions are to respect the principle of proportionality.
b. In urgent cases, the extent of the enforcement procedure should be proportionate to the urgency of the case.
c. Private persons should be able to lodge an appeal before a judicial authority against the enforcement procedure in order to ensure the protection of their rights and interests.
d. If the administrative authority does not use an enforcement procedure, those whose rights and interests are protected by the non‑implemented decision should be able to apply to a judicial authority."
See also the Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2003)98-Add 3 of 13 August 2003); click here for further information on the genesis of Recommendation Rec(2003)16.
X. Judicial Review of Procedural Errors
Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration:
"Article 2 - Principle of Lawfulness.
(1) Public authorities shall act in accordance with the law. They shall not take arbitrary measures, even when exercising their discretion.
(2) They shall comply with domestic law, international law and the general principles of law governing their organisation, functioning and activities.
(3) They shall act in accordance with rules defining their powers and procedures laid down in their governing rules.
(4) [...]."For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft 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.
Part B Principles 1.b of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts:
"1. The scope of judicial review
a. [...].
b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power.
c. [...]."Click here for further information on the genesis of Recommendation Rec(2004)20
Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities does not deal with the effects of procedural errors. The reasons are explained in the Explanatory memorandum (p. 15 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"14. In the course of preparing this resolution, the question arose whether provision should be made for the situation where any of the principles were not observed by the administrative authority.
Having found that the present diversity of the legal systems of the member states impedes the elaboration of common rules in this field, the sub-committee considered that it was for each state to implement the rules applicable in cases of non-observance by administrative authorities of the measures taken in the application of the principles set out in this resolution."
Thus, there is a consensus that procedural errors lead to the illegality of administrative decisions. However, depending on different concepts of the 'intensity' of judicial review, different concepts of discretionary power of the administration and their limits, and different concepts of powers of the judge to quash administrative decisions and to refer the case back to the administration (click here) no pan-European general principles on the effects of procedural errors can be discerned. There are neither pan-European general principles on the (im-)possibility to 'heal' procedural errors nor can pan-European general principles be discerned which exclude or impose that administrative decisions that are unlawful only due to a procedural error must necessarily quashed by courts.
Cf. for a comparative approach:
- G. della Cananea and M. Andenas (eds.), Judicial Review of Administration in Europe (2021);
- H. Wilberg, 'Judicial Review of Administrative Reasoning Processes' in P. Cane, H.C.H. Hofmann, E.C. Ip, and P. L. Lindseth (eds.), The Oxford Handbook of Comparative Administrative Law (2021), pp. 857 - 880