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The Pan-European General Principles on Non-Judicial Review and Oversight of Administrative Action

(compiled by Ulrich Stelkens)

I. The Pan-European General Principles on Internal Review of Administrative Action

II. The Pan-European General Principles on External Review by Ombudsman Institutions

III. The Pan-European General Principles on Other (Specialised) Institutions of Administrative Oversight

IV. The Pan-European General Principles on Mediation in Administrative Disputes

I. The Pan-European General Principles on Internal Review of Administrative Action

1. Article 22 (2) Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

2. Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties

3. Unfinished project of the CJ-DA for a recommendation on administrative appeals

4. The CoE handbook "The administration and you"

5. Subsidiary applicability of the pan-European general principles on discretion, on administrative procedure and on judicial review

1. Article 22 (2) Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

"Article 22 - Appeals against administrative decisions
(1) Private persons shall be entitled to seek, directly or by way of exception, a judicial review of an administrative decision which directly affects their rights and interests.
(2) Administrative appeals, prior to a judicial review, shall, in principle, be possible. They may, in certain cases, be compulsory. They may concern an appeal on merits or an appeal on the legality of an administrative decision.
(3) Private persons shall not suffer any prejudice from public authorities for appealing against an administrative decision."

"Private persons" are defined in Article 1 (3) of Recommendation CM/Rec(2007)7 as "individuals and legal persons under private law who are the subject of activities by public authorities" - 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. 43 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

2. Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties

"1. The Committee of Ministers [...]
3. Recalling Recommendation No. R (81) 7 on measures facilitating access to justice, which in its appendix called for measures to encourage the use of conciliation and mediation;
4. Recalling Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts, which calls for encouraging, in appropriate cases, the use of friendly settlement of disputes, either outside the judicial system altogether or before or during legal proceedings;
5. Considering, on the one hand, that the large amount of cases and, in certain states, its constant increase can impair the ability of courts competent for administrative cases to hear cases in a reasonable time, within the meaning of Article 6.1 of the European Convention on Human Rights;
6. Considering, on the other hand, that the courts' procedures in practice may not always be the most appropriate to resolve administrative disputes;
7. Considering that the widespread use of alternative means of resolving administrative disputes can allow these problems to be dealt with and can bring administrative authorities closer to the public;
8. Considering that the principal advantages of alternative means of resolving administrative disputes may be, depending on the case, simpler and more flexible procedures, allowing for a speedier and less expensive resolution, friendly settlement, expert dispute resolution, resolving of disputes according to equitable principles and not just according to strict legal rules, and greater discretion;
9. Considering, therefore, that in appropriate cases it should be possible to resolve administrative disputes by means other than the use of courts;
10. Considering that the use of alternative means should not serve administrative authorities or private parties as a means of avoiding their obligations or the rule of law;
11. Considering that, in all cases, alternative means should allow judicial review, as this constitutes the ultimate guarantee for protecting both users' rights and the rights of the administration;
12. Considering that alternative means to litigation must respect the principles of equality and impartiality and the rights of the parties;
13. Recommends that the governments of member states promote the use of alternative means for resolving disputes between administrative authorities and private parties by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation.

Appendix
I. General Provisions [...].
II. Relationship with courts [...].
III. Special features of each alternative means
1. Internal reviews
i. In principle, internal reviews should be possible in relation to any act. They may concern the expediency and/or legality of an administrative act.
ii. Internal reviews may, in some cases, be compulsory, as a prerequisite to legal proceedings.
iii. Internal reviews should be examined and decided upon by the competent authorities."

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2001)121 Addendum I) 3 August 2001):

"37. For the purposes of the recommendation, terms are defined as follows:
38. Internal reviews: an appeal procedure before a competent administrative authority;
39. This competent authority can be the authority which issued the contested act, a higher authority in the administrative hierarchy or an authority especially designated for that purpose. [...]."

"86. Internal reviews aim to secure the revision of an administrative act or the payment of compensation. They are addressed to the administrative authorities themselves and, depending on the systems used in the member states, consist in either an appeal to the authority which issued the contested act, or an appeal to a higher authority in the administrative hierarchy, or an appeal to another authority specially designated for the purpose.
87. Internal reviews are intended to enable the administrative authorities to reconsider their act for reasons of legality or expediency. They should be available in relation to any act and in some may be a prerequisite for subsequent referral to a court.
88. The outcome of internal reviews, if they are successful, is the amendment or setting aside of the administrative act challenged, or the payment of compensation."

Recommendation Rec(2001) 9 was preceded by a 'Multilateral Conference' in Lisbon (31 May – 2 June 1999) organized by the CJ-DA. Its proceedings are published in CoE (ed.), Alternatives to Litigation between Administrative Authorities and Private Parties: Conciliation, Mediation and Arbitration (2000).

See for the "travaux préparatoires" of the CJ-DA for Recommendation Rec (2001)9: point III of the Report on the 11th Meeting of the CJ-DA (23 - 26 October 1998 - CJ-DA (98) 6); point 3.2. of the Report on the 12th Meeting of the CJ-DA (14 - 17 September - CJ-DA (1999) 6); point. 4.2. of the Report on the 13th Meeting of the CJ-DA (2 - 4 October 2000 - CJ-DA (2002) 8)

See furthermore "travaux préparatoires" of the Working Group of the CJ-DA: Report on the Working Group's 1st Meeting (12 April 1999 - CJ-DA-GT(1999) 1); Report on the Working Group's 2nd Meeting (8 - 10 November 1999 - CJ-DA-GT(1999) 4); Report on the Working Group's 3rd Meeting (10 - 12 April 2000 - CJ-DA-GT(2000) 3); Report on the Working Group's 4th Meeting (3 - 5 July 2000 - CJ-DA-GT(2000) 5).

3. Unfinished project of the CJ-DA for a recommendation on administrative appeals

Working Group of the CJ-DA, Report on the desirability of preparing a recommendation on administrative appeals (CJ-DA-GT(2007) 9 E) 7 December 2007:

"8. From a human rights protection point of view, administrative appeals have a threefold function : firstly, they empower the public authorities to correct in a simple, quick and cost effective manner its mistakes regarding law enforcement, including infringement of human rights. Therefore administrative appeals are used as a tool of good administration, as stated in Article 22 of the code of good administration (Recommendation CM/Rec(2007)7 on good administration). Secondly, administrative appeals make it possible to reduce the workload of the courts which are reviewing administrative decisions, either by cutting the number of judicial reviews, or by facilitating these courts’ examination of the law and the facts of cases, so they contribute towards ensuring the efficiency of justice (see Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties, Chapter III.1). Thirdly, administrative appeals allow for a review of the appropriateness of decisions where a margin of discretion is provided for by law to public authorities which is not always the position in relation to judicial review. However, it should be pointed out that the requirement for a reasonable time limit of the procedure, which derives from Article 6 of the European Court of Human Rights, requires that the administrative appeal do not unecessarily extend in duration the procedure and that it is an efficient remedy by itself. 
9. The CJ-DA-GT is of the view that the preparation of a recommendation on internal administrative appeals is desirable. Firstly, a recommendation of this kind would usefully complement Recommendation Rec(2004)20 on judicial review of administrative acts, in governing the phase prior to access to the court, as well as Recommendations Rec(2001)9 on alternatives to litigation and CM/Rec(2007)7 on good administration, both of which make only a very cursory mention of administrative appeals. A recommendation would make it possible to lay down a number of minimum standards for increasing the efficiency of administrative appeals. In particular, reinforcing the adversarial dimension of the procedure would guarantee that all the arguments of the parties would already be examined by the administrative appeals authority. Furthermore, it must be pointed out that the broad consensus among the States which replied to the questionnaire does not call into question the desirability of a recommendation. Firstly, this consensus facilitates the establishment of minimum standards and secondly consensus should be sought where differences exist."

The report was based on a questionnaire and a Compendium of Replies to Questionnaire on Administrative Appeals in Europe (CJ-DA-GT (2007) 4) 10 December 2007 and proposed a recommendation dealing above all with (already quite elaborated) minimum standards concerning the conditions for lodging the appeal (i), the processing of the appeal (ii), the decision of the appeal authority (iii) and some additional matters to be discussed further.

However, the project was stopped because the CJ-DA was dissolved for financial reasons, cf. para. 7 and 14 f. of the Report on the Working Group's 3rd Meeting (5 - 7 December 2007 - CJ-DA-GT(2007) 10).

Click here for more information of this 'suspended' project.

4. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (1st edition 1996/1997), p. 37 and p. 43:

"67. The second type of control, internal review by the administrative authorities, plays an important part in practice. It offers the possibility of settling problems between the private person and the administrative authorities speedily, with little or no cost and out of court [...]."

"II – Internal review by the administrative authorities
77. In addition to judicial review, national legislation may also permit or require an appeal against an administrative act to be made to the administrative authorities. The administrative authority competent for such a review may be the one which had taken the administrative act in question, or a superior authority, or a special appellate authority.
77.1. Comment: The more the powers of courts in reviewing administrative acts are limited, the more important is internal review by administrative authorities. Where courts are not empowered, for instance, to review the merits of a case or to replace the discretion exercised by the administrative authority by its own discretion, it lies with the administration itself to correct shortcomings in this respect. The legislator may prefer reserving such internal review of discretion to senior administrative authorities in view of, in particular, the democratic control to which administrative authorities are subject. Moreover, an appeal to an administrative authority may have advantages of speed, cost and informality over judicial review.
77.2. Comment: In some countries it is a precondition for the challenging of an administrative act before a court that the act shall have been the subject of a prior administrative complaint. Only after such a complaint has been brought and the time laid down by law for a response to it has elapsed, can proceedings to review the legality of the act be brought before an administrative court. In other countries, it is, to the contrary, the internal administrative review which must be halted until the judicial review is completed. But, in any event, the existence of the possibility of an administrative review must not preclude the right to a judicial review.
77.3. Comment: The standards set out in Chapters 2 and 3 of this handbook apply also to the internal review by the administrative authorities. Indeed, an application for an internal review may be regarded as a type of representation, as referred to in paragraph 33. Where the procedural principles contained in Chapter 3 have been complied with in respect of the taking of the administrative act against which the appeal is brought, the procedures in respect of the appeal may be curtailed, provided that the complainant is not thereby placed at an unfair disadvantage.
77.4. Comment: In the case of an appeal against an administrative sanction, the administrative decision (act) taken regarding an appeal should not be less favourable (“reformatio in pejus”) to the person concerned than the initial administrative act against which the appeal was lodged."

CoE (ed.), The administration and you (2nd edition 2018), p. 43 f.:

"Appeals to the courts and judicial review of administrative acts are essential elements of a state governed by the rule of law and the separation of powers. [...]. However, other avenues of review, which are quicker, cheaper and less formal are equally important for individuals, namely internal (or administrative) reviews undertaken by the public authority itself and non-judicial reviews by an ombudsperson or similar institution. Principles 17 and 18 deal with these non-judicial forms of review and appeal.
Principle 17 - Internal review
Everyone adversely affected by an administrative decision made by a public authority shall be entitled to request an internal review of that decision.
[...]
Commentary
The nature of an internal review will depend on the type of administrative decision to be reviewed. It should be carried out by competent persons within the public authority. An internal review may be a prerequisite for an appeal to a court. A request for an internal review should of itself suspend time limits for instigating an appeal to a court. An individual must not suffer any prejudice from a public authority for appealing against an administrative decision or requesting an internal review.
Where courts are not empowered to review the merits of a case or replace a decision when that decision is taken by a public authority exercising its discretion, it lies with the public authority itself to correct any shortcomings in its actions.
The principle of internal review is based on the assumption that internal reviews precede court proceedings and this is the preferred option, although the lodging of an appeal to a court in some legal systems has the effect of suspending the internal review until such time as the appeal is determined by the court.
The substantive and procedural principles described in chapters I and II also apply to internal reviews. In some cases the internal review may form part of the internal decision-making process of the public authority. Where the procedural principles have been complied with when the initial decision was made, the review may curtail these procedures if the individual’s rights and interests are not prejudiced.
It is important to distinguish between internal reviews within the public authority itself and formal review bodies established so individuals have access to an administrative appeal. The latter must be independent of the public authority whose decision is being challenged and must comply with Principles 19 to 21 (judicial review and appeals). Internal reviews are one of several alternatives to litigation and court action for resolving disputes between public authorities and individuals. Other alternatives are conciliation, mediation, negotiated settlement and arbitration.

5. Subsidiary applicability of the pan-European general principles on discretion, on administrative procedure and on judicial review

As the CoE handbook "The administration and you" (1st edition (1996/1997), para. 77-3 (p. 43) (2nd edition 2018), p. 44) the decison stating on the internal review can be considered

• as an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("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 wether physical or legal (administrative acts")

and

• as an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("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 wether physical or legal (administrative acts)"

and

• as an 'individual decision' ("Individual decisions are those addressed solely to one or more individuals.") in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

and

• as an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").

Thus, the basic principles enshrined in these recommendations may apply also to decisions on internal review,. Therefore, the basic principles enshrined in these recommendations may apply also to these decisions, i.e. the pan-European general principles

• on discretion (for these principles click here),
  

• fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here) and
  

• on judicial review (for these principles click here).

II. The Pan-European General Principles on External Review by Ombudsman Institutions

1. Recommendation No. R (85) 13 of the Committee of Ministers to member states on the institution of the ombudsman

2. PACE Recommendation 1615 (2003) "The institution of Ombudsman" and PACE Resolution 1959 (2013) "Strengthening the institution of ombudsman in Europe"

3. Venice Commission, Principles on the Protection and Promotion of the Ombudsman Institution ("The Venice Principles") (Opinion No. 897/2018, CDL-AD(2019)005) 3 May 2019

4. Recommendation CM/ Rec(2019)6 of the Committee of Ministers to member states on the development of the Ombudsman institution

5. The CoE handbook "The administration and you"

1. Recommendation No. R (85) 13 of the Committee of Ministers to member states on the institution of the ombudsman

The recommendation is accompanied by a footnote according to which the "term Ombudsman in this recommendation relates to Ombudsmen, parliamentary commissioners, mediators and persons discharging similar functions"

"The Committee of Ministers [...];
Bearing in mind Assembly Recommendation 757 (1975) on the conclusions of the meeting of the Assembly’s Legal Affairs Committee with the ombudsmen and parliamentary commissioners in Council of Europe member states, held in April 1974 ;
Having regard to Resolution No. 2 of the European Ministerial Conference on Human Rights on the role of the Council of Europe in the further realisation of human rights (Vienna, 19-20 March 1985) ;
Welcoming the remarkable development of the institution of the ombudsman in recent years at national, regional and local level in Council of Europe member states ;
Considering that, having regard to the complexities of modern administration, it is desirable to supplement the usual procedures of judicial control ;
Recalling the functions of the ombudsman involving, inter alia, consideration of individual complaints concerning contended errors or other shortcomings on the part of the administrative authorities with a view to enhancing the protection of the individual in his dealings with those authorities ;
Considering that through these functions the institution of the ombudsman can, bearing in mind the specific situation in each country, contribute towards the strengthening of parliamentary control ;
Considering, furthermore, that the opinions of the ombudsman may constitute a major factor in the evolution of general principles and rules governing the functioning of the administration and the conduct of public employees,
Recommends the governments of member states :
a. to consider the possibility of appointing an ombudsman at national, regional or local level or for specific areas of public administration ;
b. to consider empowering the ombudsman, where this is not already the case, to give particular consideration, within his general competence, to the human rights matters under his scrutiny and, if not incompatible with national legislation, to initiate investigations and to give opinions when questions of human rights are involved ;
c. to consider extending and strengthening the powers of the ombudsman in other ways so as to encourage the effective observance of human rights and fundamental freedoms in the functioning of the administration."

Recommendation No. R (85) 13 of the Committee of Ministers to member states on the institution of the ombudsman was adopted the same day as Resolution (85) 8 on co-operation between the ombudsmen of member states and between them and the Council of Europe

2. PACE Recommendation 1615 (2003) "The institution of Ombudsman" and PACE Resolution 1959 (2013) "Strengthening the institution of ombudsman in Europe"

PACE Recommendation 1615 (2003) 

• spells out (in point 7. 1 to 71.14) certain "characteristics" that are "essential for any institution of ombudsman to operate effectively" spells out (in point 7. 1 to 71.14) certain "characteristics" that are "essential for any institution of ombudsman to operate effectively" (constitutional entrenchment, independence, transparent appointment procedures, sufficient resources, ...)

• recommends (in point 8) that the work of the CoE in administrative matters "could usefully be consolidated into a single text providing guidance, instruction and information to both administrative officials and members of the public in their mutual relations (which led to the adoption of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration, cf. the 'outline' of the origins of Recommendation CM/Rec(2007)7 in Appendix IV of the Report on the 18th Meeting of the CJ-DA (11 - 13 October 2006 - CJ-DA (2006) 7)
  

"10. Accordingly, the Assembly recommends that the governments of Council of Europe member states:
10.1. create at national level (and at regional and local level as appropriate), where it does not already exist, an institution bearing a title similar to that of “parliamentary (/regional/ local government) ombudsman”, preferably by incorporation into the constitution;
10.2. ensure that the institution of parliamentary ombudsman exhibits the characteristics described in paragraph 7 above, and that these characteristics are sufficiently protected and appropriately elaborated in the enabling legislation and statute;
10.3. give this institution a mandate which clearly encompasses human rights as being fundamental to the concept of good administration, and which includes a wider role in human rights protection where, in the absence of specific complementary alternative mechanisms, national circumstances so require;
10.4. exclude from the mandate of this institution the power to enter into litigation against either the administration or individual officials, whether before criminal or administrative courts, but to consider allowing the ombudsman to apply to the constitutional court for interpretative judgments;
10.5. engage fully with the Commissioner for Human Rights in his work of co-ordinating the activities of member states’ ombudsmen;
10.6. following the drafting of a model text by the Committee of Ministers, adopt at constitutional level an individual right to good administration;
10.7. following the drafting of a model text by the Committee of Ministers, adopt and implement fully a code of good administration, to be effectively publicised so as to inform the public of their rights and legitimate expectations.
11. The Assembly further recommends that the Committee of Ministers:
1.1. encourage member states to implement Recommendation No. R (85) 13, whilst also giving effect to the more detailed provisions of the present recommendation;
11.2. draft a model text for a basic individual right to good administration;
11.3. draft a single, comprehensive, consolidated model code of good administration, deriving in particular from Committee of Ministers Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour, with the involvement of the appropriate organs of the Council of Europe – in particular the Commissioner for Human Rights and the European Commission for Democracy through Law, as well as the Assembly – and in consultation with the European Ombudsman, thus providing elaboration of the basic right to good administration so as to facilitate its effective implementation in practice;
11.4. encourage and provide technical assistance to governments of Council of Europe member states in adopting and implementing the above-mentioned right and code;
11.5. support the Commissioner for Human Rights in his work of co-ordinating the activities of member states’ ombudsmen."

PACE Resolution 1959 (2013) mainly

• recalls the previous work of the CoE in the subject,

• recommends an implementation of PACE Recommendation 1615 (2003)

• "encourages" the "member States which have not yet set up a national generalist ombudsman to promptly establish such a body with a broad mandate, allowing individuals to complain about maladministration cases and violations of their human rights and fundamental freedoms, while ensuring a clear division of competences between ombudsman institutions and judicial review of administrative acts, which must be available at least in case of violations of human rights and fundamental freedoms."

3. Venice Commission, Principles on the Protection and Promotion of the Ombudsman Institution ("The Venice Principles") (Opinion No. 897/2018, CDL-AD(2019)005) 3 May 2019

Cf. on these principles also the website of the Venice commission on Ombudsman institutions and the "Compilation of Venice Commissions Opinions concerning the Ombudsman institution (CDL-PI(2022)022) 6 May 2022"

4. Recommendation CM/Rec(2019)6 of the Committee of Ministers to member states on the development of the Ombudsman institution

"The Committee of Ministers of the Council of Europe [...]
Welcoming the remarkable development that has taken place since the adoption of Recommendation Rec(85)13 on the institution of the Ombudsman in the great majority of the Council of Europe member States with respect to the establishment of Ombudsman institutions¹ at national, regional and local level, including those dealing with specific, thematic issues;
Welcoming the steady development of the functions of Ombudsman institutions which have expanded beyond the original mandate concerning maladministration and the rule of law;
Noting with satisfaction that Ombudsman institutions now constitute an important feature of democratic governance and play a key role in the protection and promotion of human rights and the rule of law in the vast majority of Council of Europe member States;
Underlining the great potential of Ombudsman institutions for the promotion and protection of human rights in Europe, not least for the effective implementation of the European Convention on Human Rights (ETS No. 5);
Acknowledging the importance of continuing support by the Council of Europe and other international stakeholders to Ombudsman institutions and welcoming the well-established co-operation between the Commissioner for Human Rights of the Council of Europe and Ombudsman institutions, as well as their networks, as foreseen in the Commissioner’s mandate under Resolution Res(99)50 on the Council of Europe Commissioner for Human Rights;
Acknowledging further the importance of the co-operation between Ombudsman institutions and their various networks, and of their co-operation with the Council of Europe and other international stakeholders;
Bearing in mind the relevant international texts in support of the development and protection of Ombudsman institutions;²
Acknowledging the diversity of Ombudsman institutions, which reflects the diversity of the countries and regions they serve;
Emphasising nonetheless that it is vitally important for any such institution to be governed by a number of core principles, including the following:
- independence;
- impartiality, objectivity and fairness;
- integrity and high moral authority;
- a comprehensive mandate;
- accessibility; and
- effectiveness;
Expressing grave concern about the challenging working conditions, threats, pressures and attacks which Ombudsman institutions and their staff are at times exposed to in member States;
Wishing to develop its Recommendation Rec(85)13 on the institution of the Ombudsman, henceforth replaced by the present instrument,
Recommends that the governments of member States:
1. ensure that the principles set out in the appendix to this recommendation are implemented in relevant domestic law and practice;
2. strengthen Ombudsman institutions and avoid any measures which might weaken them, and evaluate on a regular basis the effectiveness of the measures taken;
3. ensure, by appropriate means and action – including, where appropriate, translation – a wide dissemination of this recommendation among competent authorities and stakeholders;
4. examine, within the Committee of Ministers, the implementation of this recommendation no later than five years after its adoption."

Footnote 1: "The term "Ombudsman institutions" is used in this recommendation regardless of gender and to designate institutions such as those of an Ombudsman, Mediator, Parliamentary Commissioner, People's Defender, People’s Advocate, Human Rights Commissioner, Inspector General of Government, Public Protector, etc."
Footnote 2 refers to
– Recommendation Rec(97)14 of the Committee of Ministers to member States on the establishment of independent national institutions for the promotion and protection of human rights;
– Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on the need to strengthen the protection and promotion of civil society space in Europe;
– Parliamentary Assembly Resolution 1959 (2013) on "Strengthening the institution of ombudsman in Europe";
– Congress of Local and Regional Authorities of the Council of Europe Resolution 327 (2011) on “The office of Ombudsperson and local and regional authorities”;
– Principles on the protection and promotion of the Ombudsman institution (“The Venice Principles"), adopted by the European Commission for Democracy through Law (Venice Commission) at its 118^th Plenary Session (Venice, 15-16 March 2019);
– ECRI General Policy Recommendation No. 2 (revised) on Equality Bodies to combat racism and intolerance at national level, adopted on 7 December 2017;
– United Nations General Assembly Resolution 48/134 of 20 December 1993 on national institutions for the promotion and protection of human rights (“The Paris Principles”);
– United Nations General Assembly Resolutions 65/207 of 21 December 2010, 67/163 of 20 December 2012, 69/168 of 18 December 2014, 71/200 of 19 December 2016 and 72/186 of 19 December 2017 on the role of the ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights;
– the by-laws of the International Ombudsman Institute, adopted on 13 November 2012.

The Appendix of Recommendation CM/Rec(2019)6 spells out Principles (I.) on the "establishment and fundamental characteristics of Ombudsman institutions" (princples 1 to 7), to the "main tasks of Ombudsman institutions (principles 8 to 10) and on "cooperation and dialogue" (principles 11 to 13).

5. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (1st edition 1996/1997), p. 37 and pp. 43 f.:

"68. Review of the ombudsman type also plays an important part, as it may offer the possibility of stating an opinion on both the lawfulness and the suitability of the conduct of the authorities, thus helping to avoid future problems between private persons and administrative authorities. The statement of opinion may, in fact, serve as a guideline for the administrative authorities in carrying out their duties.
68.1. Comment: The private person may also make use of other methods of challenging an administrative act, such as asking his or her elected representative or the media to take up the case. However, these methods do not result directly in a remedy in the same way as judicial review or a review by the administrative authority or an ombudsman do."

"III – External review of the ombudsman type
78. In addition to judicial review there should be provision for an external institution of the ombudsman type consisting of one or several persons who:
(i) are independent ;
(ii) are preferably elected by parliament ;
(iii) act for the purpose of protecting the rights and freedoms of private persons and reviewing the lawfulness and fairness of the administrative acts ;
(iv) have the right of access to the files of the administrative authorities ;
(v) may act under informal procedures ;
(vi) are vested with powers to initiate investigations and express opinions and make administrative or legislative recommendations.
78.1. Comment: The institution of the parliamentary ombudsman is essentially based on the ideas of the protection of rights of the individual and the need for legal supervision of those who are entrusted with the exercise of public power. It has spread to numerous countries in all parts of the world. The experience of the institution of the ombudsman has shown that the opinions of ombudsmen do not only influence individual cases, in which a citizen contests an administrative act or complains about the conduct of a civil servant, but may also constitute a major factor in the evolution of general principles and rules governing the functioning of the administration and the conduct of public employees.
78.2. Comment re (i) and (ii): An ombudsman must be independent of political authorities and of those who exercise executive power and as far as possible act independently of the organ which has granted him or her powers. It is important that the ombudsmen are appointed only because of their personal qualities and without reference to their political views. The confidence of the public in the ombudsman is dependent on his or her being free and independent not only in theory but also in reality. An ombudsman elected by parliament can contribute towards the strengthening of parliamentary control.
78.3. Comment re (iii): The function of an ombudsman involves, inter alia, authorisation to receive and examine individual complaints concerning contended errors or other shortcomings on the part of the administrative authorities, with a view to enhancing the protection of the person concerned in his dealings with those authorities. Within the ombudsmen´s general competence to review the lawfulness and fairness of the administrative acts, they should be empowered to give particular consideration to human rights and fundamental freedoms in the functioning of the administration.
78.4. Comment re (iv) and (v): As a supplement to regular legal institutions and with a function to deal with individual complaints the ombudsmen
should act under informal procedures by, for instance, making inquiries and obtaining whatever information they consider necessary. It is important that the ombudsmen have access to the minutes and other documents of any administrative authority and that authorities which come under supervision should be obliged to provide the ombudsman with information and statements on request. The ombudsmen can also be empowered to be present at the deliberations of an administrative authority. The review must be of exceptional quality and performed in such a way that the institution gains the respect and trust of both society at large and the government, as well as parliament. This is important if the voice of the ombudsman is to be heard. It is also important that the ombudsman’s investigations and pronouncements to promote uniform and proper application of laws and other statutes is easily accessible to civil servants and other interested persons and organs through published reports.
78.5. Comment re (vi): The ombudsman should be vested with the right to initiate investigations and express opinions, especially when questions of human rights are involved, on the way public authorities have handled a case and point out how, in his or her opinion, the matter should have been handled. Many ombudsmen are empowered to conduct investigations on their own initiative. An ombudsman should also be vested with powers to make recommendations aimed at promoting uniform and proper application of legislation and recommend amendments of relevant statutes or any other measure to rectify the matter in one way or another. A general characteristic of the institution is that decisions of the ombudsmen are not directly enforceable and the ombudsmen have no right to issue orders to an authority to act in a certain way. In order for the ombudsmen to carry out their responsibilities efficiently, they should be vested with statutory powers which enable them to establish the actual facts in the case under investigation."

CoE (ed.), The administration and you (2nd edition 2018), p. 49 f.:

"Principle 18 - Non-judicial review
Independent non-judicial bodies shall have the power to review the lawfulness and fairness of administrative decisions.
[...]
Commentary
Independent non-judicial bodies for the purposes of this principle include ombudspersons, parliamentary commissioners, public defenders, mediators, and other similar bodies or persons responsible for reviewing the lawfulness and fairness of decisions taken by public authorities. Their role complements the role of the courts and contributes significantly to the protection of individuals in their relations with public authorities.
In order for these bodies to carry out their role effectively, it is important that they have the power to access all oral and written information (relevant correspondence, minutes of meetings and all other relevant records) they consider necessary held by public authorities. This information will allow them to initiate investigations, establish their own working methods (including informal procedures), give conclusions on individual complaints, express opinions and make recommendations for changes in administrative law and practice. Public authorities are under an obligation to co-operate fully with independent non-judicial bodies. Co-operation, at international level, between ombudspersons, parliamentary commissioners, mediators and persons discharging similar functions is particularly encouraged by the Council of Europe.
It is also crucial to maintain public trust in the integrity, impartiality and effectiveness of these independent bodies which should preferably, at least in the case of the ombudsperson, be elected by parliament. The institution of the ombudsperson (often referred to as a parliamentary ombudsperson where this person has been appointed by parliament) has spread to numerous countries in all parts of the world. Experience shows that the opinions of the ombudsperson do not only influence individual cases, where an individual challenges an administrative act or complains about the conduct of a public official, but may also constitute a major factor in the evolution of general principles and rules governing the functioning of the administration and the conduct of public officials. An ombudsperson elected by parliament can also contribute towards the strengthening of parliamentary control of public authorities."

III. The Pan-European General Principles on Other (Specialised) Institutions of Administrative Oversight

The institutions listed below have in common that they have a specific function of external administrative oversight of compliance with specific 'good administration standards' of relevance for (nearly) every administrative body. An oversight procedure may be prompted by a complaint or information filed by a private person but may also be initiated ex officio. Individual administrative decisions can be the subject of oversight procedures, but the actual task of the oversight authorities is rather the monitoring of compliance of the general administrative practice.

For the issues related to the 'indepence' which is often endowed to these institutions click here.

1. Specialised oversight institutions in the field of data protection

2. Specialised oversight institutions for auditing public procurement

3. Specialised oversight institutions for combatting corruption

1. Specialised oversight institutions in the field of data protection

a) Article 1 of the Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (ETS No. 181)

b) Article 15 of "Convention 10" as amended by Article 19 of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)

a) Article 1 of the Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (ETS No. 181)

"Article 1 - Supervisiory Authorities
1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol.
2 a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol.
b Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence.
3 The supervisory authorities shall exercise their functions in complete independence.
4 Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts.
5. In accordance with the provisions of Chapter IV, and without prejudice to the provisions of Article 13 of the Convention, the supervisory authorities shall co-operate with one another to the extent necessary for the performance of their duties, in particular by exchanging all useful information."

The additional Protocol is signed and ratified by 36 CoE Member States

Explanatory Report:

"7. Article 10 of the [Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108] requires the establishment of appropriate remedies in the
relevant legal provisions of each Party in respect of violations of provisions of domestic law giving effect to the principles of the Convention. However, it does not explicitly require the Parties to establish supervisory authorities to monitor compliance on their territory with the measures giving effect to the principles set forth in Chapters II and III of the Convention and in this Protocol. The first article of this Protocol has in this context a dual aim.
8. It aims to enforce the effective protection of the individual by requiring the Parties to create one or more supervisory authorities that contribute to the protection of the individual’s rights and freedoms with regard to the processing of personal data. More than one authority might be needed to meet the particular circumstances of different legal systems. These authorities may exercise their tasks without prejudice to the competence of legal or other bodies responsible for ensuring respect of domestic law giving effect to the principles of the Convention. The supervisory authorities should have the necessary technical and human resources (lawyers, computer experts) to take prompt, effective action in a person’s favour.
9. The article also aims to achieve improved harmonisation of the rules governing the supervisory authorities already established in respect of Parties to the Convention. In principle, all the Parties to the Convention shall provide in their domestic legislation for the establishment of one or more supervisory authorities. Depending on the national legal system, however, their composition, powers and modus operandi differ considerably from one country to another.
10. The aforementioned harmonisation not only aims at improving the level of data protection in the Parties but also aims at achieving closer co-operation between the Parties, without prejudice to the co-operation system set up by the Convention."

b) Article 15 of "Convention 10" as amended by Article 19 of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)

The Protocol has not yet entered into force.

"Article 15 – Supervisory authorities
(1) Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the provisions of this Convention.
(2) To this end, such authorities:
a shall have powers of investigation and intervention;
b shall perform the functions relating to transfers of data provided for under Article 14,notably the approval of standardised safeguards;
c shall have powers to issue decisions with respect to violations of the provisions of this Convention and may, in particular, impose administrative sanctions;
d shall have the power to engage in legal proceedings or to bring to the attention of the competent judicial authorities violations of the provisions of this Convention;
e shall promote:
i public awareness of their functions and powers, as well as their activities;
ii public awareness of the rights of data subjects and the exercise of such rights;
iii awareness of controllers and processors of their responsibilities under this Convention;
specific attention shall be given to the data protection rights of children and other vulnerable individuals.
(3) The competent supervisory authorities shall be consulted on proposals for any legislative or administrative measures which provide for the processing of personal data.
(4) Each competent supervisory authority shall deal with requests and complaints lodged by data subjects concerning their data protection rights and shall keep data subjects informed of progress.
(5) The supervisory authorities shall act with complete independence and impartiality in performing their duties and exercising their powers and in doing so shall neither seek nor accept instructions.
(6) Each Party shall ensure that the supervisory authorities are provided with the resources necessary for the effective performance of their functions and exercise of their powers.
(7) Each supervisory authority shall prepare and publish a periodical report outlining its activities.
(8) Members and staff of the supervisory authorities shall be bound by obligations of confidentiality with regard to confidential information to which they have access, or have had access to, in the performance of their duties and exercise of their powers.
(9) Decisions of the supervisory authorities may be subject to appeal through the courts.
(10) The supervisory authorities shall not be competent with respect to processing carried out by bodies when acting in their judicial capacity."

CoE (ed.), The administration and you (1st edition 1996/1997), para. 65 f. (p. 36):

"E – Sanctions and remedies
65. Appropriate sanctions and remedies are required for violations of provisions of domestic law giving effect to the basic principles for data protection set out above.
65.1. Comment: It corresponds to the spirit of Council of Europe Convention No. 108 that there be an independent supervisory body (often called “commissioner for data protection” or similar). Its independence is both with regard to the nomination of its head (often elected by the parliament) and with regard to the rules under which it functions. For the member states of the European Union, the establishment of such an independent supervisory body has become compulsory with the adoption, on 24 October 1995, of the Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data."

European Union Agency of Fundamental Rights and Council of Europe (ed.), Handbook on European data protection law (2018 edition), pp. 187 ff.

p. 189: "Independent supervision is an essential component of European data protection law. Both EU and CoE law view the existence of independent supervisory authorities as indispensable for the effective protection of the individuals’ rights and freedoms regarding the processing of their personal data. As data processing is now ever-present and increasingly complex for individuals to understand, these authorities are the watchdogs of the digital age. In the EU, the existence of independent supervisory authorities is considered one of the most essential elements of the right to the protection of personal data, enshrined in primary EU law. Article 8 (3) of the EU Charter of Fundamental Rights and Article 16 (2) of the TFEU recognise the protection of personal data as a fundamental right and affirm that compliance with data protection rules must be subject to control by an independent authority."

2. Specialised oversight institutions for auditing public procurement

a) Guiding principle 14 of the Resolution (97) 24 on the twenty guiding principles for the fight against corruption

b) Article 9 (2) of the United Nations Convention against Corruption

a) Guiding principle 14 of the Resolution (97) 24 on the twenty guiding principles for the fight against corruption

Guiding principle 14 of Resolution (97) 24 on the twenty guiding principles for the fight against corruption: "The Committee of Ministers [...] agrees [...] to adopt appropriately transparent procedures for public procurement that promote fair competition and deter corruptors."

Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).

In 1997, the 2nd Conference of Specialised Services in the fight against corruption was organised in Tallinn to deal with the subject "Corruption in Public Procurement". At the close of the Conference the participants adopted 17 conclusions, which appear as Appendix II to the GMC's Activity Report (1994-2000), CM(2000)158 (Restricted) 27 October 2000. Concerning public procurement procedures the participants concluded as follows:

"2. Public procurement procedures should be cost-efficient, fair and impartial, transparent and efficient. They should render corruption as difficult as possible, facilitate detection and pay particular attention to specific vulnerable points. In particular:
a) [...]
g) independent commissions should be established to review the correctness of public procurement procedures; bidders and other interested persons should be entitled to file complaints before such commissions,
h) public administrations should provide adequate external and internal control mechanisms and auditing procedures. Among the services responsible for these controls and procedures sharing of information and co-ordination is essential."

b) Article 9 (2) of the United Nations Convention against Corruption

The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).

As part of Chapter II on 'Preventive measures" Article 9 (2) of the United Nations Convention against Corruption stipulates:

"Article 9 - Public procurement and management of public finances
(1) [...].
(2) Each State Party shall, in accordance with the fundamental principles of its legal system, take appropriate measures to promote transparency and accountability in the management of public finances. Such measures shall encompass, inter alia:
(a) [...]
(b) [...]
(c) A system of accounting and auditing standards and related oversight;
(d) Effective and efficient systems of risk management and internal control; and
(e) Where appropriate, corrective action in the case of failure to comply with the requirements established in this paragraph.
(3) [...]."

See on Article 9 (2) of the United Nations Convention against Corruption para. 69 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 85 ff. and pp. 105 ff. of the Travaux Préparatoires; for Article 9 (1) of the United Nations Convention against Corruption click here. See furthermore Y. Marique, 'Article 9: Public Procurement and Management of Public Finance' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 91 - 105

3. Specialised oversight institutions for combatting corruption

Click here for the relation of this item with the pan-European general principles on the status of public officials

a) Resolution 97(24) of the Committee of Ministers of the Council of Europe on the twenty guiding principles for the fight against corruption

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

a) Resolution 97(24) of the Committee of Ministers of the Council of Europe on the twenty guiding principles for the fight against corruption

"The Committee of Ministers [...]
Having received the draft 20 guiding principles for the fight against corruption, elaborated by the Multidisciplinary Group on Corruption (GMC);
Firmly resolved to fight corruption by joining the efforts of our countries,
agrees to adopt the 20 guiding principles for the fight against corruption set out below:
1. [...]
3. to ensure that those in charge of the prevention, investigation, prosecution and adjudication of corruption offences enjoy the independence and autonomy appropriate to their functions, are free from improper influence and have effective means for gathering evidence, protecting the persons who help the authorities in combating corruption and preserving the confidentiality of investigations; [....]
7. to promote the specialisation of persons or bodies in charge of fighting corruption and to provide them with appropriate means and training to perform their tasks;
[...].

Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).

Guiding principle 3 and 6 were object of GRECO's First evaluation round on "independence, specialisation and means available to national bodies engaged in the prevention and fight against corruption" launched on 1st January 2000. 

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

"F. Examples of particular challenges to the Rule of Law
[...].
1. Corruption¹³⁹ and conflict of interests
a. [...]
c. Effective compliance with, and implementation of preventive and repressive measures

How is effective compliance with the above measures ensured?
i. [...].
ii. [...].
iii. Are the bodies responsible for combating corruption and preserving public sector integrity provided with adequate resources, including investigative powers, personnel and financial support? Do these bodies enjoy sufficient operational independence from the executive and the legislature?¹⁴⁰
iv. Are measures in place to make the above bodies accessible to individuals and to encourage disclosure of possible corrupt acts, notably reporting hotlines and a policy on whistle-blowers¹⁴¹ which offers protection against retaliation in the workplace and other negative consequences?
v. Does the State itself assess the effectiveness of its anti-corruption policies, and is adequate corrective action taken when necessary?"

Footnote 139: On the issue of corruption, see Group of States Against Corruption (GRECO), Immunities of public officials as possible obstacles in the fight against corruption, in Lessons learned from the three Evaluation Rounds (2000-2010) - Thematic Articles.
Footnote 140: On the issue of corruption in the judiciary, see II.E.1.c.ii.
Footnote 141: See Recommendation CM/Rec(2014)7 on the protection of whistle-blowers, of the Council of Europe’s Committee of Ministers.

IV. The Pan-European General Principles on Mediation in Administrative Disputes

1. Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties

2. European Commission for Efficiency of Justice (CEPEJ), Promoting mediation to resolve administrative disputes in Council of Europe member states (CEPEJ(2022)11 of 7 december 2022)

1. Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties

Conciliation and mediation

• can be initiated by the parties concerned, by a judge or be made compulsory by law (Appendix, principle III 2)

• should guarantee fair proceedings allowing in particular for the respect of the rights of the parties and the principle of equality (Appendix, principle I 3 c);

Conciliators and mediators

• have to be idependent and impartial (Appendix, principle I 3 ii b)

• should arrange meetings with each party individually or simultaneously in order to reach a solution (Appendix, principle III 2 ii).

• can invite an administrative authority to repeal, withdraw or modify an act on grounds of expediency or legality (Appendix, principle III 2 iIi).
  

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2001)121 Addendum I) 3 August 2001):

"37. For the purposes of the recommendation, terms are defined as follows:
38. [...].
40. Conciliation: a non-judicial procedure involving a third party which aims to bring the parties to a mutually acceptable solution;
41. Depending on the case, conciliation may result in a negotiated settlement between the parties (see below) or in a unilateral act taken by the administrative authority, such as the withdrawal of the contested act.
42. Mediation: a non-judicial procedure involving a third party who proposes a solution to the dispute in the form of a non-binding opinion or recommendation.
43. The terms conciliation and mediation are not understood in the same way in the various member States of the Council of Europe and some of them do not make a distinction between the two. Yet, it was considered useful to highlight the distinction between the two notions and in this connection retained the above definitions for the purposes of the recommendation [...].
44. Like conciliation, mediation may result in a negotiated settlement between the parties or in an unilateral act taken by the administrative authority. In some countries, no differentiation is made between conciliation and mediation.
[...].
92. Where conciliation and mediation are concerned, the final outcome remains the responsibility of the parties; the expression of their will is what ordains the adoption of this solution.
93. The appendix defines the framework in which conciliation and mediation can operate in administrative litigation. These two means are prevalent in matters concerning the administration's discretionary power, and are not aimed as a rule at determining the legality of administrative acts, which is a matter for the courts. However, it may incidentally be required of mediators or conciliators to assess the legality of a given act. The use of conciliation or mediation can also be considered in connection with the administration's obligation to apply the law without exercising discretion. An example is the occupation of the administration's public property by demonstrators, a case in which a conciliation procedure could convince the demonstrators to leave the premises. Likewise, conciliation can be considered in tax matters, another area in which the authorities are required to apply the law without exercising discretion.
94. Conciliators and mediators may be individual or plural (a board) and must be impartial, independent, committed to their role and proficient in human relations, and combine power of persuasion with communication skills. In addition, they are required to have certain professional qualifications: knowledge of laws and regulations relating to administrative and disputes procedure, and of the methods and practices of negotiation. Lastly, they must be suitably trained.
95. The appendix further points out that a conciliation or mediation procedure can follow from a request by the parties concerned - the most frequent instance - or be proposed by a judge or required by law. The authority to which the dispute is referred may be the actual conciliator or mediator, the board or the administrative department concerned by the contentious issue.
96. During the preparatory work the possible relationship between a conciliation or mediation procedure and simultaneous proceedings before the courts was considered. It was pointed out that where such a procedure took place at the request of a court, as part of the actual court proceedings, it was not covered by the CJ-DA's terms of reference and was to be regulated by the Code of Procedure.
97. After obtaining the requisite information from the parties, the conciliator or mediator meets either with both parties together or with each individually. These meetings enable the parties to engage in discussions moderated and conducted by the conciliator or mediator and are confidential when held individually.
98. The conciliator's responsibility is accordingly to help the parties in an administrative dispute arrive at an agreement to sink their differences. The conciliator clarifies the dispute, encourages the parties to discover points of agreement and, if they cannot, makes suggestions. At the conclusion of the procedure, a final report is drawn up by the conciliator who helps the parties frame their agreement, in the form of a contract.
99. In a mediation process, on the other hand, the mediator is expected to propose solutions for resolving the dispute. Mediation normally leads to recommendations made by the mediator or to a reasoned proposal for the settlement of the dispute. Since mediation does not impose a forced solution, its outcome often takes the form of a compromise or negotiated settlement.
100. The appendix points out that conciliators and mediators cannot set aside administrative acts. If they consider that an act is illegal or not expedient, they must attempt to persuade the administrative authorities to withdraw it. During the preparatory work the effect a successful conciliation or mediation procedure might have on the reasons given for the disputed administrative act, and particularly the question of whether the administration's acceptance of a solution achieved by this means could suffice to satisfy the obligation to give reasons for the act was considered. In the end, it was decided not to mention this possibility because a conciliation or mediation procedure is not binding on third parties."

Click here for further information on the genesis of Recommendation Rec (2001)9.

2. European Commission for Efficiency of Justice (CEPEJ), Promoting mediation to resolve administrative disputes in Council of Europe member states (CEPEJ(2022)11 of 7 december 2022)

CEPEJ(2022)11 of 7 december 2022 builds on European Commission for Efficiency of Justice (CEPEJ), Guidelines for a better implementation of the existing Recommendation on alternatives to litigation between administrative authorities and private parties (CEPEJ(2007)15 of 7 December 2007)

"Definition and principles

• Mediation is a structured and confidential process in which an impartial third person assists the parties by facilitating the communication between them for the purpose of resolving the issues in dispute [...].
• Mediation may concern an administrative dispute, or a dispute of an administrative nature between administrative authorities and private persons or public officials, the settlement of which is, in principle but not necessarily, the responsibility of the judge competent to settle administrative disputes.
  
• Administrative mediation can take three forms: institutional mediation, conventional mediation and jurisdictional or para-jurisdictional mediation.
• Institutional mediation is a process conducted by an institutional mediator, usually from the administration or with the status of an ombudsman. It allows for the resolution of a very wide range of disputes, which are not limited to administrative disputes in the strict sense of the term (those whose resolution is the responsibility of a court). It can be used to settle disputes arising from "maladministration".
• Conventional mediation happens when, in order to find a solution to their dispute, the parties agree to request a third-party mediator to help them find a solution to their dispute.
• Jurisdictional or para-jurisdictional mediation takes place within the framework of a lawsuit to resolve an administrative dispute. In such cases, the court has already been seized but the parties decide, either by themselves or at the invitation of the judge, to attempt mediation. Court proceedings are then interrupted to make room for the mediation process.
• Whatever the form of mediation, the mediator is always an independent third person in relation to the parties. They must be impartial. They must have both legal and technical expertise in the resolution of the conflict in question. They must conduct the procedure within a limited timeframe and respect the principle of confidentiality. The process relies on the goodwill of the parties and once it has begun, their freedom to leave it at any time must be protected. Mediation succeeds when the parties agree on an acceptable solution, thus resolving the dispute or difference.
• The mediation process concerns all types of disputes and is not specific to the resolution of administrative disputes. Nonetheless, it appears to be particularly well suited to the resolution of some of them. The actors concerned must be well aware of this, however. The promotion of administrative mediation must allow it to free itself from civil mediation in order to take into account the specificity of the matter it deals with."

CEPEJ(2022)11 of 7 december 2022 contains furthermore

• an outline on the benefits of mediation in disputes
• measures that a state can take to promote the the use of administrative mediation
• an Annex with "Examples of good practices" with regard to the availiablity, accessability and awareness of mediation in administrative disputes

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The Pan-European General Principles on Data Protection in the Public Sector

(compiled by Ulrich Stelkens)

I. Delineation of the Scope of the Pan-European General Principles on Data Protection in the Public Sector

II. Case Law of the ECtHR

III. Precursors of 'Convention 108'

IV. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108 - "Convention 108") and its Protocols

V. The CoE handbook "The administration and you"

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

On "European data protection law" in general: European Union Agency of Fundamental Rights and Council of Europe (ed.), Handbook on European data protection law (2018 edition)

I. Delineation of the Scope of the Pan-European General Principles on Data Protection in the Public Sector

The pan-European general principles on data protection in the public sector deal with the protection of the indivduals with regard to the processing of their personal data by public authorities.

Following Article 2 (b) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) as amended by the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223) "data processing" means

"any operation or set of operations performed on personal data, such as the collection, storage, preservation, alteration, retrieval, disclosure, making available, erasure, or destruction of, or the carrying out of logical and/or arithmetical operations on such data."

However, protection of personal data with regard to the disclosure of personal datas to the public, other individuals or private bodies by public authorities, either on request or as the result of an active dissemination policy is an issue to be dealt with in the context with the pan-European general principles of freedom of information and transparency (for these principles click here).

Furthermore,

• the right of the 'data subject' to access to 'one's own data' held by public authorities in data protection law (as provided for in Article 8 lit. b of 'Convention 108') and Article 9 (1) lit. b of 'Convention 108' as it will be amended by Protocol CETS No. 223) is concieved as as an instrument of the 'data subject' to check compliance with the obligations arising from data protection law (click here and click here for these additional safeguards of the 'data subject'). However, this right may also be used by the 'data subject' to gain access to information held about him - and to make use of it in a completely different context. Thus, this right can strengthen the rights to access one's own data or facilitate their practical enforcement. Therefore it could also be considered as an element of transparency (on the pan-European general principles of freedom of information and transparency click here)

• the right to access to information and data of parties of administrative (court) procedures is a specific issue related to individual rights in administrative procedures (cf. Principle II of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities (on the pan-European general principles in this regard click here) and the right to be heard in administrative court procedures (cf. Principle No. 4 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts (on the pan-European general principles in this regard click here).

• the "right not to be subject to a decision significantly affecting him or her based solely on an automated processing of data without having his or her views taken into consideration" and its limits (cf. Article 9 (1) (a) and (2) of 'Convention 108' as amended by the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223) is an issue to be dealt with in connection with the pan-European general principles on automated administrative decision-making (click here).
  

II. Case Law of the ECtHR

Case Law of the ECtHR on data protection started "only" in 1987 when the ECtHR (in ECtHR, jugdement Leander v. Sweden (9248/81) 26 March 1987) analysed, for the first time, the question of the storage by a public authority of an individual’s personal data:

"48. It is uncontested that the secret police-register contained information relating to Mr. Leander’s private life.
Both the storing and the release of such information, which were coupled with a refusal to allow Mr. Leander an opportunity to refute it, amounted to an interference with his right to respect for private life as guaranteed by Article 8 § 1 (art. 8-1)."

Thus, the fact that Article 8 ECHR protects against the storing and release of personal data by public authorities was neither doubted nor argued by the ECtHR. The European Commission of Human Rights in its report adopted of 17 May 1985 on this case at para. 54 referred to its decision X v. Austria of 4 May 1979 (8170/78) at para. 25. However, in both decisions, also the Commission does not justify this assumption. Therefore the foundation of the pan-European general principles on data protection in the public sector where not laid down by the ECtHR but by other works of the CoE, namely the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and its precursors. The principles laid down in this 'Convention 108' are therefore 'absorbed' to a large degree by the case law of the ECtHR.

• ECtHR (ed.), Guide on Article 8 of the European Convention on Human Rights (version of August 2023), para. 221 ff.

• ECtHR (ed.), Guide to the Case Law of the European Court of Human Rights - Data Protection (version of February 2023)

ECtHR, Drelon v. France (3153/16) 8 September 2022:

"82. La Cour a résumé les principes applicables à l’examen de la nécessité de la collecte et de la conservation de données à caractère personnel dans l’affaire S. et Marper (arrêt précité, §§ 101-104). Une telle mesure doit être proportionnée au but légitime poursuivi et reposer sur des motifs « pertinents et suffisants ». La législation interne doit, par ailleurs, ménager des « garanties appropriées » pour empêcher toute utilisation de données à̀ caractère personnel qui ne serait pas conforme aux garanties prévues à l’article 8 (ibidem, § 103). À cet égard, la Cour prend en considération les stipulations de la Convention pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel (« Convention de 1981 ») (Z c. Finlande, 25 février 1997, § 95, Recueil des arrêts et décisions 1997‑I, et S. et Marper, précité, §§ 103 et 107). Pour contrôler si une mesure portant atteinte à la protection des données à caractère personnel est « nécessaire dans une société démocratique », la Cour examine si elle respecte l’une ou l’autre des exigences énumérées par l’article 5 de cette Convention, à savoir, notamment, les exigences de minimisation des données stockées, d’exactitude des données, de limitation de leur utilisation et de limitation de leur durée de conservation. En particulier, le droit interne doit assurer que les données traitées sont pertinentes et non excessives par rapport aux finalités pour lesquelles elles sont enregistrées, et qu’elles sont conservées sous une forme permettant l’identification des personnes concernées pendant une durée n’excédant pas celle nécessaire aux finalités pour lesquelles elles sont enregistrées (ibidem, § 103). Ces considérations valent tout spécialement lorsqu’est en jeu la protection de catégories particulières de données plus sensibles visées à l’article 6 de la Convention de 1981 (ibidem).
[...].
95. Eu égard à la sensibilité des données personnelles litigieuses, qui comportent des indications sur les pratiques et l’orientation sexuelles du requérant (paragraphe 86 ci-dessus), la Cour considère qu’il est particulièrement important qu’elles répondent aux exigences de qualité prévues à l’article 5 de la Convention de 1981. Il importe en particulier qu’elles soient exactes et, le cas échéant, mises à jour, qu’elles soient adéquates, pertinentes et non excessives par rapport aux finalités du traitement, et que leur durée de conservation n’excède pas celle qui est nécessaire. Par ailleurs, la Cour constate que les données litigieuses, qui touchaient à l’intimité du requérant, ont été collectées et conservées sans le consentement explicite du requérant – ce que le Gouvernement défendeur ne conteste pas."

ECtHR (GC), L.B. v. Hungary (36345/16) 9 March 2023:

"103. The Court notes that the right to protection of personal data is guaranteed by the right to respect for private life under Article 8. As it has previously held, the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Article 8 thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 137, 27 June 2017). In determining whether the personal information retained by the authorities involves any private-life aspects, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see S. and Marper, cited above, § 67).
[...].
(ii)    Data protection principles
123.  With regard to the limitations on the States’ margin of appreciation resulting from the above requirement to afford appropriate safeguards, it is equally noteworthy that, when assessing the processing of personal data under Article 8 of the Convention, the Court has frequently had regard to the principles contained in data protection law [...]. These have included:
(α) The principle of purpose limitation (Article 5 (b) of the Data Protection Convention), according to which any processing of personal data must be done for a specific, well-defined purpose and only for additional purposes that are compatible with the original purpose (see, as examples, M.S. v. Sweden, cited above, § 42; Z v. Finland, cited above, § 110; and Biriuk v. Lithuania, no. 23373/03, § 43, 25 November 2008). Thus, in some instances the Court has found that broad entitlement allowing the disclosure and use of personal data for purposes unrelated to the original purpose of their collection constituted a disproportionate interference with the applicant’s right to respect for private life (see Karabeyoğlu v. Turkey, no. 30083/10, § 118, 7 June 2016, and Surikov v. Ukraine, no. 42788/06, § 89, 26 January 2017).
(β) The principle of data minimisation (Article 5 (c) of the Data Protection Convention), according to which personal data should be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (see S. and Marper, cited above, § 103), and the excessive and superfluous disclosure of sensitive private details not related to the purported aim of informing the public is not justified (see Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, § 147-49, 10 January 2019).
(γ) The principle of data accuracy (Article 5 (d) of the Data Protection Convention). The Court has emphasised that the inaccurate or false nature of the information contained in public registers can be injurious or potentially damaging to the data subject’s reputation (see Cemalettin Canlı v. Turkey, no. 22427/04, § 35, 18 November 2008; Khelili v. Switzerland, no. 16188/07, § 64, 18 October 2011; and Rotaru v. Romania [GC], no. 28341/95, § 44, ECHR 2000‑V), requiring statutory procedural safeguards for the correction and revision of the information (see Cemalettin Canlı, cited above, §§ 41-42; see also Anchev v. Bulgaria (dec.), nos. 38334/08 and 68242/16, 5 December 2017).
(δ) The principle of storage limitation (Article 5 (e) of the Data Protection Convention), according to which personal data are to be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data are processed. The Court has held that the initially lawful processing of accurate data may over time become incompatible with the requirements of Article 8 where those data are no longer necessary in the light of the purposes for which they were collected or published (see, to this effect, M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, §§ 99 and 106, 28 June 2018, and Sõro v. Estonia, no. 22588/08, § 62, 3 September 2015)."

III. Precursors of 'Convention 108'

1. PACE Recommendation 509(1968) on Human Rights and modern scientific and technological developments

2. Resolution (74)29 on the protection of the privacy of individuals vis-à-vis electronic data banks in the public sector

1. PACE Recommendation 509(1968) on Human Rights and modern scientific and technological developments

"The Assembly [...]
3. Believing that newly developed techniques such as phone-tapping, eavesdropping, surreptitious observation, the illegitimate use of official statistical and similar surveys to obtain private information, and subliminal advertising and propaganda are a threat to the rights and freedoms of individuals and, in particular, to the right to privacy which is protected by Article 8 of the European Convention on Human Rights;
4. considering that the law in the majority of the member States does not provide adequate protection against such threats to the right of privacy, and that there is in consequence danger of violation of Article 8 of the Convention on Human Rights;
5. Noting that some member States of the Council of Europe are planning to revise their legislation on this subject and that it would be desirable for any such reform to tend towards a greater harmonisation of the law;
6. Considering that it would be useful to make a detailed study of the legal problems arising in connection with the right to privacy and its violation by modern technical devices, with special reference to the European Convention on Human Rights; [....]
8. Recommends that the Committee of Ministers instruct the Committee of Experts on Human Rights:
8.1. to study and report on the question whether, having regard to Article 8 of the Convention on Human Rights, the national legislation in the member States adequately protects the right to privacy against violations which may be committed by the use of modern scientific and technical methods;
8.2. if the answer to this question is in the negative, to make recommendations for the better protection of the right of privacy."

The report recommended in 8.1. of the PACE Recommendation 509(1968) was published in 1973, cf. Report of the Committee of Experts on Human Rights to the Committee of Ministers on the Right to Privacy (DH (73) 17) of 8 May 1973.

2. Resolution (74)29 on the protection of the privacy of individuals vis-à-vis electronic data banks in the public sector

"The Committee of Ministers, [...]
Desiring to contribute to public understanding and confidence with regard to new administrative techniques which public authorities in the member states are using in order to ensure the optimal performance of the tasks entrusted to them;
Recognising that the use of electronic data banks by public authorities has given rise to increasing concern about the protection of the privacy of individuals;
Considering that the adoption of common principles in this field can contribute towards a solution of these problems in the memver states and can help to prevent
the creation of unjustified divergencies between the laws of the member states on this subject ;
Recalling its Resolution (73) 22 on the protection of privacy of individuals vis-à-vis electronic data banks in the private sector;
Bearing in mind Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,
Recommends the governments of member states:
a. to take all steps which they consider necessary to give effect to the principles set out in the annex to the present resolution;
b. to inform the Secretary General of the Council of Europe in due course of any action taken in this field.
Annex to Resolution 74 (29)
The following principles apply to personal information stored in electronic data banks in the public sector.
For the purposes of this resolution, "personal information" means information relating to individuals (physical persons) and "electronic data bank" means any electronic data processing system which is used to handle such information.
1.
As a general rule the public should be kept regularly informed about the establishment, operation and development of electronic data banks in the public sector.
2.
The information stored should be:
a. obtained by lawful and fair means,
b. accurate and kept up to date,
c. appropriate and relevant to the purpose for which it has been stored.
Every care should be taken to correct inaccurate information and to erase inappropriate, irrelevant or obsolete information.
3.
Especially when electronic data banks process information relating to the intimate private life of individuals or when the processing of information might lead to unfair discrimination,
a. their existence must have been provided for by law, or by special regulation or have been made public in a statement or document, in accordance with the legal system of each member state;
b. such law, regulation, statement or document must clearly state the purpose of storage and use of such information, as well as the conditions under which it may be communicated either within the public administration or to private persons or bodies;
c. that data stored must not be used for purposes other than those which have been defined unless exception is explicitly permitted by law, is granted by a competent authority or the rules for the use of the electronic data bank are amended.
4.
Rules should be laid down to specify the time-limits beyond which certain categories of information may not be kept or used.
However, exceptions from this principle are acceptable if the use of the information for statistical, scientific or historical purposes requires its conservation for an indefinite duration. In that case, precautions should be taken to ensure that the privacy of the individuals concerned will not be prejudiced.
5.
Every individual should have the right to know the information stored about him.
Any exception to this principle or limitation to the exercise of this right should be strictly regulated.
6.
Precautions should be taken against any abuse or misuse of information. For this reason:
a. everyone concerned with the operation of electronic data processing should be bound by rules of conduct aimed at preventing the misuse of data and in particular by a duty to observe secrecy;
b. electronic data banks should be equipped with security systems which bar access to the data held by them to persons not entitled to obtain such information and which provide for the detection of misdirections of information, whether intentional or not.
7.
Access to information that may not be freely communicated to the public should be confined to the persons whose functions entitle them to take cognisance of it in order to carry out their duties.
8.
When information is used for statistical purposes it should be released only in such a way that it is impossible to link information to a particular person."

Explanatory report (drafted by the European Committee on Legal Co-operation (CCJ) – Addendum to the report on the 21st meeting of the CCJ (CM(74)171-add) 29 July 1974):

"Introduction
1. It is hardly necessary to emphasise how important it is that every individual in modern society is guaranteed satisfactory protection with regard to the electronic
processing of data concerning him.
In the early 1960s when computers made their first appearance as administrative aids, the need to protect citizens against possible risks for their privacy did not appear to be urgent. Computers were expensive and their use was limited to a small number of public services.
In recent years, however, the need to provide adequate safeguards for the individual has become more acute as a result of two parallel and interdependent processes : the growing complexity of the social fabric and the headway made by information technology.
2. In all fields of human activity, electronic data processing has been introduced as an efficient and powerful instrument to solve complex problems. In certain fields it has already become virtually indispensable.
The advantages derived from the use of computers in the public sector are very obvious. They can help to rationalise administrative work. In relieving the administration from tedious tasks such as copying, filing, keeping records up to date, issuing certificates, documentation, etc information technology raises administrative productivity.
Information technology improves the capacity of every administration to store, process and utilise data on which its decisions are to be based. It enables, moreover, several administrations, at different levels (central, regional,lecal), to pool their data.
Thus, automation, can raise the quality of public service notwithstanding the constantly growing volume, diversity and complexity of the tasks of the administration.
3. The main applications of information technology by the public administration will vary considerably from one state to another as a result of certain considerations such as the volume of the operations, their cost, administrative traditions, technical infrastructure, etc. Among the most common uses of computer technology by the European states are to be mentioned: statistics, postal accounts, social security, personnel management, financial administration, health services, land registers, criminal records, business firms’ registers, motor vehicle administration and internal revenue.
Information stored in population registers, which are now increasingly being computerised and which deserve special attention because they respond to the needs of all branches and levels of the public administration is a typical example of information used for more than one purpose.
4. The citizens who are seeing the gradual introduction of computers in public administration will form an opinion of its advantages or inconveniences. They will appreciate the speed, clarity and logic with which information is handled in administrative processes affecting them. But at times they may also be anxious about what may appear to them to be an increase in the power of the authorities as a result of computerised administration. First, there are fears that the use of computers will allow several administrations to exchange among themselves various kinds of information on the same persons and that it will be possible in this way for the state to compile and keep up to date a detailed "profile" on individual citizens. In fact, it is by no means a simple matter to build up such profiles; a number of technical difficulties stand in the way. Nevertheless, this potential capacity of modern public administration has awakened in some people a fear that their privacy is losing ground.
Furthermore, the possibility that the same information may be used for more than one purpose a s a result of several parts of the administration being able to obtain access to it has led to doubts about the real purposes for which the information is required and about the confidentiality aly of the information stored.
5. An inherent difficulty hovering over the debate on the protection of privacy vis-à-vis public electronic data banks stems from the delicate problem of the balance of interests. Governments arc confronted on the one hand by advocates of the rights of individuals who are asking for measures to secure the confidential nature of the data held by the state about citizens, and on the other hand by those who demand equal and free access of citizens to information hendled by public authorities.
Public anxiety has arisen not because many abuses of information technology have actually been discovered but rather from the possibility of abuse and also from the fact that computers are being used to store certain categories of information about which individuals are traditionally sensitive.
Finally, the public is not sufficiently informed about the new information technology. The reason for this is the novelty of the medium and the fact that the public authorities have not yet adopted a firm policy with regard to it.
In the absence of general rules and of a proper information of the public, the discussion is apt to flare up on the occasion of each new project for the use of information technology. In this connection, it should be kept in mind that the success with which computers can be used in public affairs will depend very much on the decree of confidence the public is willing to give to their use."

In other parts, the Explanatory report highlights the differences and commonalities of data protection in the public and in the private sector:

"V. THE OPERATIVE PART OF THE RESOLUTION
10. With regard to the scope of the present resolution, the question was raised whether it was possible and indeed necessary to adopt a definition on what is understood by "public sector".
It was observed that, in view of lack of uniformity between the notions of "public sector" as they are understood in the laws of the several European states, and in view of the fact that the problem of outlining the scope of the resolution does not seem to have posed any difficulty when the private sector was examined, it seems preferable not to embark on a search for the precise boundaries of the public sector.
On the basis of such considerations and in order not to run the risk of leaving bare a zone of "non-law", it is left to the states concerned by the present resolution to fix the exact perimeters of their public sector.
It should be recalled that in all European states certain tasks are the exclusive province of public authorities.
To those traditional tasks new tasks have later been added with the development from the "policeman state"’ to the "entrepreneur state" or the "welfare state". This development has been different from one stage to another. We may therefore conclude on the one hand that public authorities are fulfilling in certain fields (national defence, maintenance of order, justice, public finance) a special task which has no equivalent in the private sector. On the other hand, in view of the diversity existing between the states where certain functions, are sometimes entrusted to the public sector and sometimes left to the private sector, it is advisable to take as a point of departure the principles already examined in the framework of the private sector. The text of the present resolution therefore has been developed along these two lines of thought."

IV. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108 - "Convention 108") and its Protocols

On the CoE Conventions on data protection in general cf. CoE's Data Protection website "Convention 108 and Protocols".

All CoE Conventions on data protection regulate both, data protection in the public and private sector, in the same articles (seemingly for the reasons explained in para. 10 of the Explanatory report to Resolution (74)29 (cited above)).

1. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108)

2. Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (ETS No. 181)

3. Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)

1. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108)

The 'Convention 108' is signed and ratified by all 46 Member States of the CoE. Its scope of application covers "to automated personal data files and automatic processing of personal data in the public and private sectors." (Article 3 (1)).

a) Object of 'Convention 108'

b) Main substantive principles of 'Convention 108'

c) Additional safeguards for the data subject as provided for in Article 8 'Convention 108'

d) Transnational mutual assistance (Chapter IV of 'Convention 108')

a) Object of 'Convention 108'

Summary of the CoE's Treaty office:

"This Convention is the first binding international instrument which protects the individual against abuses which may accompany the collection and processing of personal data and which seeks to regulate at the same time the transfrontier flow of personal data.
In addition to providing guarantees in relation to the collection and processing of personal data, it outlaws the processing of "sensitive" data on a person's race, politics, health, religion, sexual life, criminal record, etc., in the absence of proper legal safeguards. The Convention also enshrines the individual's right to know that information is stored on him or her and, if necessary, to have it corrected.
Restriction on the rights laid down in the Convention are only possible when overriding interests (e.g. State security, defence, etc.) are at stake.
The Convention also imposes some restrictions on transborder flows of personal data to States where legal regulation does not provide equivalent protection."

Explanatory Report:

"Introduction
Data Protection
1. The object of this convention is to strengthen data protection, i.e. the legal protection of individuals with regard to automatic processing of personal information relating to them.
There is a need for such legal rules in view of the increasing use made of computers for administrative purposes. Compared with manual files, automated files have a vastly superior storage capability and offer possibilities for a much wider variety of transactions, which they can perform at high speed.
Further growth of automatic data processing in the administrative field is expected in the coming years inter alia as a result of the lowering of data processing costs, the availability of "intelligent" data processing devices and the establishment of new telecommunication facilities for data transmission.
2. "Information power" brings with it a corresponding social responsibility of the data users in the private and public sector. In modern society, many decisions affecting individuals are based on information stored in computerised data files: payroll, social security records, medical files, etc. It is essential that those responsible for these files should make sure that the undeniable advantages they can obtain from automatic data processing do not at the same time lead to a weakening of the position of the persons on whom data are stored. For this reason, they should maintain the good quality of the information in their care, refrain from storing information which is not necessary for the given purpose, guard against unauthorised disclosure or misuse of the information, and protect the data, hardware and software against physical hazards."

New challenges for data protection were discussed at the "14th Colloquy on European Law" in Lisbon (26–28 September 1984) organised by the CoE. Its proceedings are published in CoE (ed.), Beyond 1984: The Law and Information Technology in Tomorrow's Society (1985). In the address of M. O. Wiederkehr (representing the Secretary General of the CoE) the idea of this 'Colloquy' was

"to take advantage of the symbolic year 1984, for critical examination and stocktaking of the upheavals in information technology with a view to assessing, in particular, the changes in society likely to result and the desirability of making new legal rules to this changes."

b) Main substantive principles of 'Convention 108'

"Article 5 – Quality of data
Personal data undergoing automatic processing shall be:
a. obtained and processed fairly and lawfully;
b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;
c. adequate, relevant and not excessive in relation to the purposes for which they are stored;
d. accurate and, where necessary, kept up to date;
e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.

Article 6 – Special categories of data
Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.

Article 7 - Data security
Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination."

Explanatory Report on Article 5 to 7:

"40. The provisions of this article are largely identical to the corresponding principles laid down in Resolutions (73) 22 and (74) 29 and can also be found in very similar terms in the national data protection laws enacted prior to this convention.
The different provisions of this article aim at the fulfilment of two fundamental legal standards.
On the one hand the information should be correct, relevant and not excessive in relation to its purpose. On the other hand its use (gathering, storage, dissemination) should likewise be correct.
41. The reference to "purposes" in litterae b and c indicates that it should not be allowed to store data for undefined purposes. The way in which the legitimate purpose is specified may vary in accordance with national legislation.
42. The requirement appearing under littera e concerning the time-limits for the storage of data in their name-linked form does not mean that data should after some time be irrevocably separated from the name of the person to whom they relate, but only that it should not be possible to link readily the data and the identifiers.
[...]
43. While the risk that data processing is harmful to persons generally depends not on the contents of the data but on the context in which they are used, there are exceptional cases where the processing of certain categories of data is as such likely to lead to encroachments on individual rights and interests. Categories of data which in all member States are considered to be especially sensitive are listed in this article.
[...]
46. [...]the expression "domestic law" may be taken in a wide sense, i.e. not only legislation but also appropriate or specific regulations or administrative directives, as long as the necessary level of protection is secured.
[...].
49. There should be specific security measures for every file, taking into account its degree of vulnerability, the need to restrict access to the information within the organisation, requirements concerning long-term storage, and so forth. The security measures must be appropriate, i.e. adapted to the specific function of the file and the risks involved They should be based on the current state of the art of data security methods and techniques in the field of data processing."

c) Additional safeguards for the data subject as provided for in Article 8 'Convention 108' 

"Article 8 – Additional safeguards for the data subject
Any person shall be enabled:
a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;
b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;
c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this Convention;
d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with."

Explanatory Report on Article 8:

"50. The provisions set out in this article are designed to enable a data subject to defend his rights vis-à-vis automated data files. Although in domestic legislation the contents of Article 8 clearly correspond to subjective rights, the present text expresses them in the form of safeguards which Contracting States offer to data subjects, in view of the non self-executing character of the convention. These safeguards include four main elements:
– knowledge about the existence of an automated data file;
– knowledge about the contents of the information, if any, stored about data subjects in a file;
– rectification of erroneous or inappropriate information;
– a remedy if any of the previous elements are not respected.
51. In order that these rights can be effective, the convention requires that with regard to every automated record it should be stated clearly who is the controller (littera a). The wording of this littera takes into account the variety of rules of domestic law giving effect to this principle. There are States where the name of the controller of the file is listed in a public index. In other States which have no such publicity rule, the law will provide that the name of the controller of the file must be communicated to a person at his request.
52. ln litterae b and c it has not been specified from whom a data subject may obtain confirmation, communication, rectification, etc. In most States this will be the controller of the file, but in some States this right is exercised through the intermediary of the supervisory authority.
53. The wording of littera b is intended to cover various formulas followed by national legislation: communication at the request of the data subject or at the initiative of the controller of the file; communication free of charge at fixed intervals as well as communication against payment at any other time, etc. The term "expense" means the fee charged to the data subject, not the actual cost of the operation.
54. In the case of rectifications obtained in conformity with the principle set out in littera c, national law or practice provides usually that where appropriate those rectifications should be brought to the recipients of the original information."

CoE (ed.), The administration and you (1st edition 1996/1997), pp. 35 f.

"D – Right to access and rectification
64. Any person has to be enabled :
(i) to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file ;
(ii) to obtain at reasonable intervals and without excessive delay or expense, confirmation of whether personal data relating to her or him are stored in the automated data file as well as communication to her or him of such data in an intelligible form ;
(iii) to obtain rectification or erasure of personal data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out above under A and B ;
(iv) to have a remedy if a request for confirmation or communication, rectification or erasure as referred to in (ii) and (iii) above is not complied with
64.1. Comment re (i): The "controller of the file" is the natural or legal person, public authority, agency or other body who is competent according to the national law to decide what should be the purpose of the data file, which categories of personal data should be stored and which operations should be applied to them.
64.2. Comment re (ii- iv): Restrictions on these rights may be provided by law with respect to files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the persons concerned (see more details in Article 9 of Convention No. 108)."

d) Transnational mutual assistance (Chapter IV of 'Convention 108')

For transnational mutual assistance under Chapter IV of 'Convention 108' click here

2. Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (ETS No. 181)

The additional Protocol is signed and ratified by 36 CoE Member States. Its scope of application is identical to that of "Convention 108".

Summary of the CoE's Treaty office:

"The text will increase the protection of personal data and privacy by improving the original Convention of 1981 (ETS No. 108) in two areas. Firstly, it provides for the setting up of national supervisory authorities responsible for ensuring compliance with laws or regulations adopted in pursuance of the convention, concerning personal data protection and transborder data flows. The second improvement concerns transborder data flows to third countries. Data may only be transferred if the recipient State or international organisation is able to afford an adequate level of protection."

Explanatory Report

Click here for the pan-European general principles on supervisory authorities in the field of data protection.

3. Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)

The Protocol has not yet entered into force. For a consolidated text of the 'Convention 108' as it will be amended by the Protocol CETS No. 223 upon its entry into force click here. See furthermore "The modernised Convention 108: novelties in a nutshell"

a) Object of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)

b) Main substantive principles of 'Convention 108' as it will be amended by the Protocol CETS No. 223

c) Additional safeguards for the data subject as provided for in Article 9 of 'Convention 108' as it will be amended by the Protocol CETS No. 223

d) Transnational cooperation and mutual assistance (Chapter V of 'Convention 108' as it will be amended by the Protocol CETS No. 223)

a) Object of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)

The Protocol will change Article 3 (1) of 'Convention 108' and, thus, enlarge its scope of application: 

"Each Party undertakes to apply this Convention to data processing subject to its jurisdiction in the public and private sectors, thereby securing every individual’s right to protection of his or her personal data."

Summary of the CoE's Treaty office:

"The aim of the Protocol of amendment is to modernise and improve the Convention (ETS No. 108), taking into account the new challenges to the protection of individuals with regard to the processing of personal data which have emerged since the Convention was adopted in 1980.
The modernisation of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, the only existing legally binding international treaty with global relevance in this field, addresses the challenges to privacy resulting from the use of new information and communication technologies, and strengthens the convention’s mechanism to ensure its effective implementation.
The Protocol provides a robust and flexible multilateral legal framework to facilitate the flow of data across borders while providing effective safeguards when personal data are being used. It constitutes a bridge between different regions of the world and different normative frameworks, including the new European Union´s legislation that will become fully applicable on 25 May 2018 and which refers to Convention 108 in the context of transborder data flows.
Some of the innovations contained in the Protocol are the following:

• • Stronger requirements regarding the proportionality and data minimisation principles, and lawfulness of the processing;

  • Extension of the types of sensitive data, which will now include genetic and biometric data, trade union membership and ethnic origin;

  • Obligation to declare data breaches;

  • Greater transparency of data processing;

  • New rights for the persons in an algorithmic decision making context, which are particularly relevant in connection with the development of artificial intelligence;

  • Stronger accountability of data controllers;

  • Requirement that the "privacy by design" principle is applied;

  • Application of the data protection principles to all processing activities, including for national security reasons, with possible exceptions and restrictions subject to the conditions set by the Convention, and in any case with independent and effective review and supervision;

  • Clear regime of transborder data flows;

  • Reinforced powers and independence of the data protection authorities and enhancing legal basis for international cooperation."

b) Main substantive principles of 'Convention 108' as it will be amended by the Protocol CETS No. 223

"Article 5 – Legitimacy of data processing and quality of data
(1) Data processing shall be proportionate in relation to the legitimate purpose pursued and reflect at all stages of the processing a fair balance between all interests concerned, whether public or private, and the rights and freedoms at stake.
(2) Each Party shall provide that data processing can be carried out on the basis of the free, specific, informed and unambiguous consent of the data subject or of some other legitimate basis laid down by law.
(3) Personal data undergoing processing shall be processed lawfully.
(4) Personal data undergoing processing shall be:
a. processed fairly and in a transparent manner;
b. collected for explicit, specified and legitimate purposes and not processed in a way incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is, subject to appropriate safeguards, compatible with those purposes;
c. adequate, relevant and not excessive in relation to the purposes for which they are processed;
d. accurate and, where necessary, kept up to date;
e. preserved in a form which permits identification of the data subjects for no longer than is necessary for the purposes for which those data are processed.

Article 6 – Special categories of data
(1) The processing of:
– genetic data;
– personal data relating to offences, criminal proceedings and convictions, and related security measures;
– biometric data uniquely identifying a person;
– personal data for the information they reveal relating to racial or ethnic origin, political opinions, trade-union membership, religious or other beliefs, health or sexual life,
shall only be allowed where appropriate safeguards are enshrined in law, complementing those of this Convention.
(2) Such safeguards shall guard against the risks that the processing of sensitive data may present for the interests, rights and fundamental freedoms of the data subject, notably a risk of discrimination.

Article 7 - Data security
(1) Each Party shall provide that the controller, and where applicable the processor, takes appropriate security measures against risks such as accidental or unauthorised access to, destruction, loss, use, modification or disclosure of personal data.
2 Each Party shall provide that the controller notifies, without delay, at least the competent supervisory authority within the meaning of Article 15 of this Convention, of those data breaches which may seriously interfere with the rights and fundamental freedoms of data subjects."

 See, furthermore the Explanatory memorandum on the new Article 5 - 7 (para. 40 ff.).

c) Additional safeguards for the data subject as provided for in Article 9 of 'Convention 108' as it will be amended by the Protocol CETS No. 223

"Article 9 – Rights of the data subject
(1) Every individual shall have a right:
a. not to be subject to a decision significantly affecting him or her based solely on an automated processing of data without having his or her views taken into consideration;
b. to obtain, on request, at reasonable intervals and without excessive delay or expense, confirmation of the processing of personal data relating to him or her, the communication in an intelligible form of the data processed, all available information on their origin, on the preservation period as well as any other information that the controller is required to provide in order to ensure the transparency of processing in accordance with Article 8, paragraph 1;
c. to obtain, on request, knowledge of the reasoning underlying data processing where the results of such processing are applied to him or her;
d. to object at any time, on grounds relating to his or her situation, to the processing of personal data concerning him or her unless the controller demonstrates legitimate grounds for the processing which override his or her interests or rights and fundamental freedoms;
e. to obtain, on request, free of charge and without excessive delay, rectification or erasure, as the case may be, of such data if these are being, or have been, processed contrary to the provisions of this Convention;
f. to have a remedy under Article 12 where his or her rights under this Convention have been violated;
g. to benefit, whatever his or her nationality or residence, from the assistance of a supervisory authority within the meaning of Article 15, in exercising his or her rights under this Convention.
(2) Paragraph 1.a shall not apply if the decision is authorised by a law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights, freedoms and legitimate interests."

For Article 9 (1) a and (2) of 'Convention 108' as it will be amended by the Protocol CETS No. 223 click here. Cf., furthermore, the Explanatory memorandum on the new Article 9:

71. This article lists the rights that every individual should be able to exercise concerning the processing of personal data relating to him or her. Each Party shall ensure, within its legal order, that all those rights are available for every data subject together with the necessary legal and practical, adequate and effective means to exercise them.
72. [...].
76. Littera b. Data subjects should be entitled to know about the processing of their personal data. The right of access should, in principle, be free of charge. However, the wording of littera b. is intended to allow the controller in certain specific conditions to charge a reasonable fee where the requests are excessive and to cover various approaches that could be adopted by a Party for appropriate cases. Such a fee should be exceptional and in any case reasonable, and not prevent or dissuade data subjects from exercising their rights. The controller or processor could also refuse to respond to manifestly unfounded or excessive requests, in particular because of their repetitive character. The controller should in all cases justify such a refusal. To ensure a fair exercise of the right of access, the communication "in an intelligible form" applies to the content as well as to the form of a standardised digital communication.
77. Littera c. Data subjects should be entitled to know the reasoning underlying the processing of data, including the consequences of such a reasoning, which led to any resulting conclusions, in particular in cases involving the use of algorithms for automated-decision making including profiling. For instance in the case of credit scoring, they should be entitled to know the logic underpinning the processing of their data and resulting in a "yes" or "no" decision, and not simply information on the decision itself. Having an understanding of these elements contributes to the effective exercise of other essential safeguards such as the right to object and the right to complain to a competent authority.
78. Littera d. As regards the right to object, the controller may have a legitimate ground for data processing, which overrides the interests or rights and freedoms of the data subject. For example, the establishment, exercise or defence of legal claims or reasons of public safety could be considered as overriding legitimate grounds justifying the continuation of the processing. This will have to be demonstrated on a case-by-case basis and failure to demonstrate such compelling legitimate grounds while pursuing the processing could be considered as unlawful. The right to object operates in a distinct and separate manner from the right to obtain rectification or erasure (littera e.).
79. Objection to data processing for marketing purposes should lead to unconditional erasing or removing of the personal data covered by the objection.
80. The right to object may be limited by virtue of a law, for example, for the purpose of the investigation or prosecution of criminal offences. In this case, the data subject can, as the case may be, challenge the lawfulness of the processing on which it is based. When data processing is based on valid consent given by the data subject, the right to withdraw consent can be exercised instead of the right to object. A data subject may withdraw his or her consent and subsequently have to assume the consequences possibly deriving from other legal texts such as the obligation to compensate the controller. Likewise where data processing is based on a contract, the data subject can take the necessary steps to revoke the contract.
81. Littera e. The rectification or erasure, if justified, must be free of charge. In the case of rectifications and erasures obtained in conformity with the principle set out in littera e., those rectifications and erasures should, where possible, be brought to the attention of the recipients of the original information, unless this proves to be impossible or involves disproportionate efforts.
82. Littera g. aims at ensuring effective protection of data subjects by providing them the right to an assistance of a supervisory authority in exercising the rights provided by the Convention. When the data subject resides in the territory of another Party, he or she can submit the request through the intermediary of the authority designated by that Party. The request for assistance should contain sufficient information to permit identification of the data processing in question. This right can be limited according to Article 11 or adapted in order to safeguard the interests of a pending judicial procedure."

d) Transnational cooperation and mutual assistance (Chapter V of 'Convention 108' as it will be amended by the Protocol CETS No. 223)

For transnational mutual assistance and cooperation under Chapter V of 'Convention 108'  as it will be amended by the Protocol CETS No. 223 click here

V. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (1st edition 1996/1997), pp. 32 ff.:

"III – Protection of personal data
60. Administrative authorities have a certain number of obligations as regards the collection, the processing and the storage of personal data concerning private persons. These obligations are designed to strike a fair balance between everybody’s basic "freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers" (freedom of expression as enshrined in Article 10 of the European Convention on Human Rights) on the one hand, and the "right to respect for his [or her] private and family life, [...] home and [...] correspondence" (right to privacy, Article 8 of the Convention) on the other hand. Seventeen Council of Europe member states, by ratifying the 1981 Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No.108), have undertaken to enact legislation which renders obligatory, for both the administrative authorities and private operators, the respect of the principles set out in the paragraphs hereafter ; most of the other Council of Europe member states also respect all or most of these principles.
60.1. Comment: "Personal data" means any information relating to an identified or identifiable individual. In many countries the private person’s voice and image are considered personal data and enjoy protection of the law. "Automatic processing" includes the following operations if carried out in whole or in part by automated means : storage of data, carrying out of logical and/or arithmetic operations on those data, as well as their alteration, erasure, retrieval or dissemination.
60.2. Comment : The administrative authorities seen as a whole (which may include police, statistics, social security and public health services, tax and customs authorities, schools, land registers, administrations providing public utilities such as water, gas or electricity or public transport, telecommunications, etc.) have an important "knowledge" about individuals. They have access to many kinds of data, most of which are obtained upon request by the administrative authorities, but some of which may have been given spontaneously to them (on the occasion of a complaint made to the police, for example). Given the privileged position of the administrative authorities, it is of the utmost importance that they be bound to handle their powers in compliance with the principles set out below. It is normal practice for such compliance to be monitored by an independent authority (see below section E – "Sanctions and remedies").
60.3. Comment: Since the conclusion of the above-mentioned Convention No.108, the issue of data protection has grown in importance. Public and other services (bank, credit, social security, social assistance, medical care, insurance, etc.) operate more and more with automated data files. It was felt that for many of these sectors the general principles contained in Convention No. 108 had to be refined. This is being done by means of Council of Europe Recommendations. The following recommendations have been adopted as of yet by the Committee of Ministers : No. R (81) 1 on regulations for automated medical data banks (23 January 1981) ; No. R (83) 10 on the protection of personal data used for scientific research and statistics (23 September 1983) ; No. R (85) 20 on the protection of personal data used for the purposes of direct marketing (25 October 1985) ; No. (86) 1 on the protection of personal data used for social security purposes (23 January 1986), No. R (87) 15 regulating the use of personal data in the police sector (17 September 1987) ; No. R (89) 2 on the protection of personal data used for employment purposes (18 January 1989) ; No. R (90) 19 on the protection of personal data used for payment and other related operations (13 September 1990) ; No. R (91) 10 on the communication to third parties of personal data held by public bodies (9 September 1991) ; and No. R (95) 4 on the protection of personal data in the area of telecommunication services, with particular reference to telephone services (7 February 1995). Other recommendations are under preparation in the fields of statistical data, medical data including genetic data and insurances. Moreover, a Council of Europe expert group was established to consider the problems of data protection raised by new technologies, such as the Internet."

Para. 61 ff. of the handbook deals with principles on "collection, use and quality of data" (para. 61 ff.), "sensitiive data" (para. 62), "data security" (para. 63 f.), "right to access and rectification" (para. 64 ff.) and "sanctions and remedies" (para. 65 ff.).

CoE (ed.), The administration and you (2nd edition 2018), pp. 22 f.:

"Principle 7 - Privacy and the protection of personal data
When processing personal data held in digital or any other format, public authorities shall take all necessary measures to guarantee the privacy of individuals and their right to the protection of personal data.
[...]
Commentary
Processing (including collecting) personal data by public authorities is of particular importance in the context of their relations with the public. Public authorities must respect the private life of individuals and their right to the protection of personal data.
Public authorities must ensure that people are allowed access to personal data held by them so individuals can check how their personal data is processed, its accuracy and, where appropriate, are given the opportunity to exercise other rights such as the rights to rectify or erase.
Access, rectification and erasure of personal data are rights recognised since 1981 in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108, hereafter "Convention 108"). Convention 108 aimed to enable individuals:
- to establish the existence of data processing, its main purposes, as well as the identity and habitual residence or principal place of business of the controller;
- to obtain at reasonable intervals and without excessive delay or expense, confirmation of whether personal data is stored and its communication in an intelligible form;
- to obtain rectification or erasure of personal data if it has been processed contrary to the provisions of domestic law giving effect to the basic principles of the Convention; and
- to have a legal remedy.
[...].
It is important that public authorities process personal data lawfully and fairly. To this end, they must take all necessary precautions. The data must be processed only for explicit, specified and legitimate purposes. These purposes for which it is processed must be adequate, relevant and not excessive. The data must be accurate and, where necessary, kept up-to-date. It must be preserved in a form that only allows the individual to be identified for as long as necessary for the purposes for which those data are processed. [...].
Certain types of personal data, called "sensitive data", may not be processed unless domestic law provides appropriate safeguards complementing those of Convention 108. These include notably the processing of:

• • genetic data;
  • personal data relating to offences, criminal proceedings and convictions, and related security measures;
  • biometric data uniquely identifying a person;
  • personal data revealing racial or ethnic origin, political opinions, trade-union membership, religious or other beliefs, health or sexual life.

Appropriate security measures have to be taken by public authorities for the protection of personal data held by them against risks such as accidental or unauthorised access to, destruction, loss, use, modification or disclosure of personal data.
A series of recommendations of the Committee of Ministers of the Council of Europe specify how the general principles of Convention 108 should be applied in the different areas of public authorities’ responsibilities, namely:

• • employment data (Recommendation CM/Rec(2015)5);
  • profiling (Recommendation CM/Rec(2010)13);⁶
  • statistics (Recommendation No. R (97) 18);
  • medical data (Recommendation No. R (97) 5);
  • telecommunications (Recommendation No. R (95) 4);
  • communicating data to third parties (Recommendation No. R (91) 10);
  • police data (Recommendation No. R (87) 15);⁷
  • social security data (Recommendation No. R (86) 1)."

Footnote 6: "See also the Guidelines on the protection of individuals with regard to the processing of personal data in a world of Big Data, adopted by the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, in January 2017."
Footnote 7: "See also the Practical guide on the use of personal data in the police sector, adopted by the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, in February 2018.

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

"F. Examples of particular challenges to the Rule of Law
[...].
2. Collection of data and surveillance
a. Collection and processing of personal data
How is personal data protection ensured?
i. Are personal data undergoing automatic processing sufficiently protected with regard to their collection, storing and processing by the State as well
as by private actors? What are the safeguards to secure that personal data are:
- processed lawfully, fairly and in a transparent manner in relation to the data subject ("lawfulness, fairness and transparency");
- collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes ("purpose limitation")?
- adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed ("data minimisation")?
- accurate and, where necessary, kept up to date ("accuracy")?
- kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed ("storage limitation");
- processed in a way that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage ("integrity and confidentiality")?¹⁴⁶
ii. Is the data subject provided at least with information on:
- the existence of an automated personal data file, its main purposes;
- the identity and the contact details of the controller and of the data protection officer;
- the purposes of the processing for which the personal data are intended;
- the period for which the personal data will be stored;
- the existence of the right to request from the controller access to and rectification or erasure of the personal data concerning the data subject or to object to the processing of such personal data;
- the right to lodge a complaint to the supervisory authority and the contact details of the supervisory authority; the recipients or categories of recipients of the personal data;
- where the personal data are not collected from the data subject, from which source the personal data originate;
- any further information necessary to guarantee fair processing in respectof the data subject.¹⁴⁷
iii. Does a specific independent authority ensure compliance with the legal conditions under domestic law giving effect to the international principles and requirements with regard to the protection of individuals and of personal data?¹⁴⁸
iv. Are effective remedies provided for alleged violations of individual rights by collection of data?¹⁴⁹

117. The increasing use of information technology has made the collection of data possible to an extent which was unthinkable in the past. This has led to the development of national and international legal protection of individuals with regard to automatic processing of personal information relating to them. The most important requirements of such protection are enumerated above. These are also applicable mutatis mutandis to data processing for security purposes.

Footnote 146: An early document (of 1981) is Article 5 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS 108) ; see also Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Articles 6, 7; in the meantime in the EU a "Proposal for a Regulation of the
European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)" has been agreed on (Interinstitutional File 2012/0011 (COD) of Dec 15, 2015). Principles of data protection are enshrined in Art. 5. See also a "Proposal for a Directive of the European Parliament and the Council on the protection of individuals with regard to the processing of
personal data by competent authorities for the purpose of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data" (Interinstitutional file: 2012/0010 (COD) of 16 December 2015. In 2013 the OECD adopted "The OECD Privacy Framework", with "principles" in Part 2.
Footnote 147: See the Proposal for a Regulation quoted in the previous footnote, Article 14; Directive 95/46/EC, Articles 10-11; CETS 108, Article 8
Footnote 148: CDL-AD(2007)014, § 83.
Footnote 149: Cf. Articles 8 and 13 ECHR.

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

(compiled by Ulrich Stelkens)

I. Definition of Competitive Award Procedures

II. Scarce CoE-Sources on Competitive Award Procedures

III. Scarce Case Law of the ECtHR Regarding Competitive Award Procedures

IV. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review

V. Concretisation of the Pan-European General Principles of Transparency and Equality in Competitive Award Procedures by Non-CoE Sources?

I. Definition of Competitive Award Procedures

There is no general concept of 'competitive award procedures' in the sources of the CoE. This is also due to the fact that the particularities and commonalities of these administrative procedures seem to have been recognised and analysed at the European level only since the 1990s (especially in connection with the development of the EEC and EC public procurement directives, namely Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts).

Following para. 29 ff. of the Explanations to Book IV of the ReNEUAL Model Rules on EU Administrative Procedure, the most pertinent examples of these procedures (partly also dealt with in 'CoE law') would be

• public procurement procedures (cf. guiding principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption)
  
  
• sales of assets and other privatisation procedures (cf. section 5 of the Recommendation No. R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities)
  
  
• selection of public officials in recruitment procedures (cf. Articles 4 and 5 of the Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe)

See for the nature of 'recruitment procedures' of public officials as 'competitive award procedures' (on the example of german administrative law) U. Stelkens, 'Judicial Protection and Competitive Award Procedures in Germany', (2021) 14:1 REALaw, pp. 141 - 165 (pp. 154 ff.)

• granting of financial aids in competitive procedures (in contrast to financial aids granted following the 'watering can principle').

By 'generalising' Article IV-9 (1) of the ReNEUAL Model Rules on EU Administrative Procedure 'competitive award procedures' may be defined as

"administrative procedures where the public authority is not legally obliged to grant an award to every person satisfying the criteria for the award".

Another approach would be to understand these procedures above all as procedures aimed at the allocation of 'scare goods'.

See e. g. F. Wollenschläger, 'EU Law Principles for Allocating Scarce Goods and the Emergence of an Allocation Procedure', (2015) 8:1 REALaw, pp. 205 - 256 (p. 208): "The article understands an allocation procedure to be an administrative procedure which aims at selecting, by using specific criteria, from among a number of individuals, one or more individuals for a specific purpose, the consideration of all applicants being ruled out because the object that is to be allocated is scarce, for whatever reason"). Scarcity, following this concept, may be natural (e. g. natural resources) or be the result of a deliberate decision of the legislator (e. g. scarcitiy of gambling or taxi concessions) or, finally, when the "public sector itself demands or supplies goods, but only does so in a limited quantity because of limited demand or of finite availability: Places at university, subsidies, public contracts or posts in the civil service are appropriate examples" (cf. Wollenschläger, op. cit., p. 206).

The latter cases (public sector demanding or supplying goods) are usually the primary focus of attention, and this is also the case here.

II. Scarce CoE-Sources on Competitive Award Procedures

1. Public Procurement and Guiding Principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption

2. Sales of Assets and other Privatisation Procedures and Section 5 of Recommendation No. R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities

3. Selection of Civil Servants in Recruitment Procedures and Articles 4 and 5 of Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe

1. Public Procurement and Guiding Principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption

Guiding principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption:

"The Committee of Ministers [...]
agrees [...]
14. to adopt appropriately transparent procedures for public procurement that promote fair competition and deter corruptors."

Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).

In 1997, the 2nd Conference of Specialised Services in the fight against corruption was organised in Tallinn to deal with the subject "Corruption in Public Procurement". At the close of the Conference the participants adopted 17 conclusions, which appear as Appendix II to the GMC's Activity Report (1994-2000), CM(2000)158 (Restricted) 27 October 2000. Concerning public procurement procedures the participants concluded as follows:

"2. Public procurement procedures should be cost-efficient, fair and impartial, transparent and efficient. They should render corruption as difficult as possible, facilitate detection and pay particular attention to specific vulnerable points. In particular:
a) specifications and designs should be clear, precise, accessible and non-discriminatory,
b) decision-making criteria should be as objective as possible and discretion reduced to the minimum extent possible,
c) opening of bids should, as a general rule, be in public allowing, at least, the presence of public authorities and bidders and, preferably, the participation of outside interested bodies (consumer or professional associations, media, etc),
d) as far as possible, awarding should not be made by an individual person, but by committees, where evaluations are conducted collectively with independence and freedom from any undue interference by the administration or the private sector,
e) where free competition and publicity are not possible due to the very nature of the contract (e.g. security or defense expenditure) alternative means of control should be devised in order to avoid corruption,
f) those responsible for public procurement should be held accountable for their decisions,
g) independent commissions should be established to review the correctness of public procurement procedures; bidders and other interested persons should be entitled to file complaints before such commissions,
h) public administrations should provide adequate external and internal control mechanisms and auditing procedures. Among the services responsible for these controls and procedures sharing of information and co-ordination is essential.
3. The law should deal appropriately with the consequences of public procurement contracts awarded through corruption, particularly by making provision for:
a) loss of contract,
b) forfeiture of bid security,
c) liability for damages,
d) black-listings of companies and managers involved in corrupt practices."

All this shows a close link of the role of "appropriately transparent procedures for public procurement" to the fight against corruption.

2. Sales of Assets and other Privatisation Procedures and Section 5 of Recommendation No. R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities

"The Committee of Ministers [...]
Recommends the governments of member states to be guided in their law and administrative practice by the principles set out in the appendix to this recommendation,
[...]
Appendix to Recommendation No. R (93) 7
[...]
Section 5: Protection of potential purchaser
The procedures for privatisation should be established with due regard to the need for transparency and equal treatment of potential purchasers. These aims may be achieved by a variety of means, for example, public tender or competitive sale."

See on Section 5 point 3.2.6. of the Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 494 ff.):

"The aims to which member states are called upon to have due regard in this principle are transparency and equal treatment of potential purchasers. "Transparency" implies openness on the part of the public undertaking or public authorities with regard to the disclosure of the relevant information; equal treatment arises not only as regards the provision of information but also as regards all other aspects of the privatisation where there are a number of potential purchasers. However, the principle contained in Section 5 refer in particular to public tender and competitive sale as especially likely, in the event that there is more than one purchaser, to result, in practice, in the aims stated in this principle being achieved.
The question as to who should be admitted to the position of a potential purchaser, and in particular, whether foreign nationals or undertakings should be allowed to participate in the privatisation process, is a matter for the domestic law of the member states in accordance, if appropriate, with international engagements undertaken by those states, such as the EC treaties.
Where the chosen procedure is public tender or competitive sale, this principle stresses not only the necessitiy to give adequate information [...] to potential purchasers, but also the necessity that those concerned with the privatisation should not be in a position of potential conflict between their private interests and their public duty. In particular, care should be taken to ensure that the persons who participate in the management of the enterprise to be privatised or who are in charge of organising privatisation are not in position to take illicit advantage of their situation.
In some member states the concerns to which this section is directed may be adressed by the ordinary private law governing contract and commercial transactions without its being necessary to institute specific procedures."

Click here for the genesis of Recommendation No R(93)7 in general. For the "public utility doctrine" underlying Section 2 of the Appendix to Recommendation No. R (93)7 click here. For Recommendation No. R (93) 7 as a general source of the pan-European general principles on privatisation click here.

3. Selection of Civil Servants in Recruitment Procedures and Articles 4 and 5 of Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe

"Appendix to Recommendation No. R (2000) 6
[...]
4. Conditions and requirements for recruitment
Recruitment of public officials should be defined by equality of access to public posts and selection based on merit, fair and open competition and an absence of discrimination. Some pre-conditions may exist for accessing public posts. In addition, general requirements and specific requirements may exist for recruitment. In so far as they constitute exceptions to these principles, they should be admitted only if lawfully justified.
5. Recruitment procedures
In respect of the principles referred to above, recruitment systems and procedures should be open and transparent, and their rules should be clear. They should allow the best candidate to be appointed to meet the specific needs of the department or organisation concerned.
States should provide for the legal protection of applicants to public positions including, inter alia, ensuring the due confidentiality of sensitive information provided in the context of the selection procedure and a legal remedy for the candidates against the decision of the competent authority."

III. Scarce Case Law of the ECtHR Regarding Competitive Award Procedures

ECtHR, judgement Tinnelly and Sons Ltd. and Others and McElduff and Others v. UK (20390/92) 10 June 1998, para 72 ff.: The ECtHR simply applies  the 'civil limb' of Article 6 (1) ECHR with regard to claims based on national non-discrimination legislation in competitive award procedures.

ECtHR, decision Marti AG, Cellere AG, Gebr. Brun AG and Stuag AG v Switzerland (36308/97) 11 July 2000:

"The Court recalls that Article 6 § 1 of the Convention secures to everyone the right to have any claims relating to his civil rights and obligations brought before a court or tribunal.  In this way the Article embodies the "right to a court", of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect [...].
In the present case, the issue which arises is whether Article 6 of the Convention applies to the proceedings at issue.
The Court must ascertain in particular whether there has been a dispute (contestation) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law [...].  In this respect, the Court recalls that Article 6 § 1 of the Convention does not itself guarantee any particular content of "civil rights and obligations" and is not meant to create new substantive rights which have no legal basis in the State concerned. Rather, the provision aims at giving procedural protection to rights which can be said, at least on arguable grounds, to be recognised under domestic law [...].
In the present case, Section 3 of the Tenders Act of the Canton of Lucerne determines that construction works and supplies shall as a rule be awarded following a competitive invitation for tenders. The Ordinance completing the Tenders Act provides in its Section 18 that the award shall fall to the cheapest offer, though it is also stated that, given the substantive requirements and the time-limits involved, the lowest tender will not always be the cheapest.  Section 19 lists further criteria to be considered in case of equal or similarly favourable offers.  Section 22 provides that no reasons need be given to candidates whose offers have not been considered.
It is true, in the Court’s view, that these provisions set up a competitive scheme for the award of contracts concerning public works.  But it is also true that they afford the public authorities considerable discretion when taking their decision.  No right emerges from these provisions for any candidate to have any particular project carried out by the public authorities.
This view is confirmed by the decisions of the Administrative Court of the Canton of Lucerne of 16 July 1996, and of the Federal Court of 12 November 1996, both of which concluded that domestic law did not grant the applicants a "right" to be awarded a particular offer upon tender.
The Court concludes that at no time could the applicants plausibly claim any particular right under domestic law.  The case thus falls to be distinguished from that of Tinelly & Sons Ltd and others and McElduff and others v. the United Kingdom concerning a "right" arising from alleged discrimination of the candidates (see the judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1655 et seq.).  No specific claim of discrimination has been made in the present case.
It follows that Article 6 of the Convention is not applicable to the proceedings at issue.  The application is, therefore, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected, pursuant to Article 35 § 4 of the Convention."

See on this case law F. Wollenschläger, 'EU Law Principles for Allocating Scarce Goods and the Emergence of an Allocation Procedure', (2015) 8:1 REALaw, pp. 205 - 256 (p. 238 ff.)

IV. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review

The awarding decision in competitive award procedures can be considered

• as an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal (administrative acts")

and

• as an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal (administrative acts)"

and

• as an 'individual decision'  ("Individual decisions are those addressed solely to one or more individuals.") in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

and

• as an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").

Thus, the basic principles enshrined in these recommendations may apply also to awarding decisions, at least with regard to the unsuccessful participants of such a procedure. Therefore, the basic principles enshrined in these recommendations may apply also in the case of to awarding decisions, i.e. the pan-European general principles

• on discretion (for these principles click here),
  
  
• fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here) and
  
  
• on judicial review (for these principles click here).

As an example for such an adaption may serve the rules in the Chapter on 'Competitive award procedures' in Book IV (Article IV-9 - IV- 19) of the ReNEUAL Model Rules on EU Administrative Procedure.

V. Concretisation of the Pan-European General Principles of Transparency and Equality in Competitive Award Procedures by Non-CoE Sources?

1. OECD Principles on Public Procurement (as a 'Key Focus Area' in the Field of 'Anti-Corruption and Integrity in the Public Sector)

2. Article 9 (1) of the United Nations Convention against Corruption

3. EU's Transparency Principle in Competitive Award Procedures

1. OECD Principles on Public Procurement (as a 'Key Focus Area' in the Field of 'Anti-Corruption and Integrity in the Public Sector)

• OECD Recommendation of the Council on Public Procurement (2015) - namely recommendation II on ensuring an 'adequate degree of transparency of the public procurement system in all stages of the procurement cycle', recommendation III on preserving 'the integrity of the public procurement system through general standards and procurement-specific safeguards' and recommendation IV on facilitating 'access to procurement opportunities for potential competitors of all sizes'
  
  
• OECD Public Procurement Toolbox ("In addition to better familiarising you with the 12 Principles [of Recommendation of the Council on Public Procurement], the Toolbox provides policy tools, specific country examples as well as indicators to measure your public procurement system").

2. Article 9 (1)  of the United Nations Convention against Corruption

The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).

As part of Chapter II on 'Preventive measures" Article 9 of the United Nations Convention against Corruption stipulates:

"Article 9 - Public procurement and management of public finances
(1) Each State Party shall, in accordance with the fundamental principles of its legal system, take the necessary steps to establish appropriate systems of procurement, based on transparency, competition and objective criteria in decision-making, that are effective, inter alia, in preventing corruption. Such systems, which may take into account appropriate threshold values in their application, shall address, inter alia:
(a) The public distribution of information relating to procurement procedures and contracts, including information on invitations to tender and relevant or pertinent information on the award of contracts, allowing potentialtenderers sufficient time to prepare and submit their tenders;
(b) The establishment, in advance, of conditions for participation, including selection and award criteria and tendering rules, and their publication;
(c) The use of objective and predetermined criteria for public procurement decisions, in order to facilitate the subsequent verification of the correct application of the rules or procedures;
(d) An effective system of domestic review, including an effective system of appeal, to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed;
(e) Where appropriate, measures to regulate matters regarding personnel responsible for procurement, such as declaration of interest in particular public procurements, screening procedures and training requirements.
(2) [...]
(3) [...]."

See for Article 9 (1) of the United Nations Convention against Corruption para. 69 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 85 ff. and pp. 105 ff. of the Travaux Préparatoires; for Article 9 (2) of the United Nations Convention against Corruption click here. See, furthermore, Y. Marique, 'Article 9: Public Procurement and Management of Public Finance' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 91 - 105.

3. EU's Transparency Principle in Competitive Award Procedures

For a discussion of the possibility to 'integrate' EU's transparency principle in competitive award procedures into the pan-European general principles on competitive award procedures see U. Stelkens, 'Vers la reconnaissance des principes généraus paneuropéens du droit administratif dans l'Euope des 47?', in J.-B. Auby and J. Dutheil de la Rochère (eds.), Traité de droit administratif européen (2nd edition 2014), pp. 713 – 740 (pp. 734 ff.)

a) Transparency principle in public procurement

b) Transparency principle and awarding gambling licences

c) Transparency principle and privatisation procedures

a) Transparency principle in public procurement

ECJ, judgement Telaustria Verlags GmbH and Telefonadress GmbH v. Telekom Austria AG (C-324/98) 7 December 2000

"59 However, the fact that such a contract does not fall within the scope of Directive 93/38 does not preclude the Court from helping the national court which has sent it a series of questions for a preliminary ruling. To that end, the Court may take into consideration other factors in making an interpretation which may assist the determination of the main proceedings.
60 In that regard, it should be borne in mind that, notwithstanding the fact that, as Community law stands at present, such contracts are excluded from the scope of Directive 93/38, the contracting entities concluding them are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular.
61 As the Court held in Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31, that principle implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with.
62 That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.
63 It is for the national court to rule on the question whether that obligation was complied with in the case in the main proceedings and also to assess the materiality of the evidence produced to that effect."

ECJ, judgement SAG ELV Slovensko and Others (C-599/10) 29 March 2012

"25. With regard to Article 2 of Directive 2004/18, it must be borne in mind that the principal objectives of the European Union rules in the field of public procurement include that of ensuring the free movement of services and the opening-up to undistorted competition in all the Member States. In order to pursue that twofold objective, European Union law applies, inter alia, the principle of equal treatment of tenderers and the obligation of transparency resulting therefrom [...]. The obligation of transparency, for its part, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority [...]. As regards the award of contracts, Article 2 of Directive 2004/18 requires contracting authorities to comply with the same principles and obligations."

ECJ, judgement ANAS (C-545/21) 8 June 2023

"31. The role of the European Union is therefore to finance, through its funds, only actions conducted in complete conformity, inter alia, with the principles and rules on the award of public contracts [...], in particular the principle of equal treatment of tenderers and the principle of transparency, guaranteed in Article 2 of Directive 2004/18.
32. The principle of equal treatment of tenderers requires economic operators interested in a public contract to be afforded equality of opportunity when formulating their tenders, to be made aware of the exact constraints of the procedure and to be in fact assured that all tenderers are subject to the same conditions [...]. Furthermore, tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority
33. The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority [...]..

See, furthermore,

• the compilation of 'legal principles' underlying the EU public procurment regulation by C. H. Bovis. 'Public Procurement Regulation' in H. C. H. Hofmann, G. C. Rowe and A. H. Türk (eds.), Specialized Administrative Law of the European Union, pp. 476 - 508 (pp. 483 ff.)

• Commission interpretative Communication (2006/C 179/02) on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives: It formulates 'basic standards' on advertising, the contract award and judicial protection for  contracts 'beyond' the procurement directives. This communcation has been considered not to contain "for the award of public contracts which go beyond the obligations under Community law as it currently stands" by the General Court, judgement Germany v. Commission (T-258/06) 20 March 2010, para. 60 ff.

• the Chapter on 'Competitive award procedures' in Book IV (Article IV-9 - IV- 19) of the ReNEUAL Model Rules on EU Administrative Procedure which builds on the aforementioned Commission Communication (2006/C 179/02).

b) Transparency principle and awarding gambling licences

ECJ, judgement Commission v. Italy (C-260/04) 13 September 2007:

"20. As the Commission rightly observed, the Italian Government has not denied, either during the pre-litigation procedure or in the course of these proceedings, that the award of licences for horse-race betting operations in Italy constitutes a public service concession. That classification was accepted by the Court in Placanica and Others (C‑338/04, C‑359/04 and C‑360/04 [2007] ECR I-0000), in which it interprets Articles 43 and 49 EC in relation to the same national legislation.
21. It is common ground that public service concessions are excluded from the scope of Directive 92/50 [...].
22. The Court has held that, notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the grounds of nationality, in particular [...].
23.The Court then stated that the provisions of the Treaty applying to public service concessions, in particular Articles 43 and 49 EC, and the prohibition of discrimination on grounds of nationality are specific expressions of the principle of equal treatment [...].
24. In that regard, the principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed [...].
25. In the present case, it must be observed that the complete failure to invite competing bids for the purposes of granting licences for horse-race betting operations does not accord with Articles 43 and 49 EC, and, in particular, infringes the general principle of transparency and the obligation to ensure a sufficient degree of advertising. The renewal of the 329 old licences without a call for tenders precludes the opening up to competition of the licences and review of the impartiality of the procurement procedures."

c) Transparency principle and privatisation procedures

ECJ, judgement Club Hotel Loutraki and Others (C-145/08 and C-149/08) 6 May 2010

"59. The transfer of shares to a tenderer in the context of a privatisation of a public undertaking does not fall within the scope of the directives on public contracts.
60. Moreover, that is rightly pointed out in point 66 of the Green Paper on public-private partnerships and Community law on public contracts and concessions (COM(2004) 327 final).
61. In point 69 of its abovementioned Green Paper on public-private partnerships, the Commission points out that it is necessary to ensure that such a capital transaction does not in reality conceal the award to a private partner of contracts which might be termed public contracts or concessions. Nevertheless, in the present case, there is nothing in the documents to cast doubt on the nature of the transaction at issue in the main proceedings, as categorised by the national court.
62. Having regard to the foregoing considerations, the conclusion must be that a mixed contract of which the main object is the acquisition by an undertaking of 49% of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts.
63. That conclusion does not preclude the fact that such a contract must observe the basic rules and general principles of the Treaty, in particular those on the freedom of establishment and the free movement of capital. However, there is no reason in the present case to consider the question of observance of those rules and principles, given that the result of such an examination could in no way lead to a finding that Directive 89/665 applies."

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The Pan-European General Principles on Administrative Rules and Administrative Rulemaking

(compiled by Ulrich Stelkens)

I. Delimitation of the Scope of the Pan-European General Principles on Administrative Rules and Administrative Rulemaking

II. Rulemaking Powers of the Executive and their Limits

III. Administrative Rulemaking Procedures

IV. Administrative Rules and Judicial Review

I. Delimitation of the Scope of the Pan-European General Principles on Administrative Rules and Administrative Rulemaking

1. Definition of 'administrative rules' and 'administrative rulemaking procedures'

2. Exclusion of the grey area between individual decisions and general applicable rules

3. Delimitation difficulties with regard to the substantive side of administrative rulemaking

1. Definition of 'administrative rules' and 'administrative rulemaking procedures'

The following definitions correspond with the concept of Article II-2 (1) of the ReNEUAL Model Rules on EU Administrative Procedure.

'Administrative rules' are legally binding non-legislative acts of general application. Whether an act of general application is legally binding depends on its ability to create obligations and rights with the same "force of law" as a law enacted by Parliament (and thus does not merely have the character of a 'soft law').

'Administrative rulemaking procedures' are procedures leading to the establishment, amendment and repeal of legally binding non-legislative acts of general application. This definition

• excludes rules of general application enacted by Parliament (parliamentary acts, laws)

• includes executive rules enacted by government and/or the head of state even if directly based on the constitution (règlements autonomes). Normally, they are considered as ‘administrative rulemaking’; however, there may be grey zones (e.g. in the case of décret-lois or regulations which have to be approved by Parliament, etc.)

• includes municipal statutes (bylaws), however the question if local self-government does also embrace local self-regulation by the municipal council is covered by Article 3 (1) of the European Charter of Local Self-Government (on the pan-European general principles on local self-government click here)

2. Exclusion of the grey area between individual decisions and general applicable rules

For reasons of simplification and clarity administrative decisions in the grey area between individual decisions and general applicable rules should not be regarded as  'administrative rules' in the sense of the above definition.

This excludes namely 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 from the scope of the pan-European general principles on administrative rules and administrative rulemaking. Examples would be traffic regulation by traffic signs, temporary and localised security measures (even if they are directed towards everyone) and the terms of use of a specific public facility (e.g. the regulation for the use of a particular public park).

Above all this excludes  'spatial planning decisions'  from the scope of the pan-European general principles on administrative rules and administrative rulemaking even if they are enacted formally as, e. g., a regulation or a bylaw (municipal statute) and even if the procedures leading to these decisions may be considered as a sub-type of 'administrative rulemaking procedures' in many or most countries. 'Spatial planning decisions' are decisions of a public authority that harmonise, expand or restrict the possibilities of using specific plots of land located in the planning area and thereby have an impact on the rights and interests of property owners, authorised users or neighbouring residents.

Cf. the different approaches to the topic of "public participation in the preparation of legislative and administrative acts" at the "7th Colloquy on European Law" in Bari (3–5 October 1976) organized by the CoE; its proceedings are published in CoE (ed.), Public participation in the preparation of legislative and administrative acts (1977).

'Spatial planning decisions' are generally subject to a special (procedural) regime which should not be easily equated with either the 'general' procedural regime applicable to administrative rulemaking or the 'general' procedural regime applicable to individual decisions. For the pan-European general principles on spatial planning click here.

3. Delimitation difficulties with regard to the substantive side of administrative rulemaking

To some extent it may be difficult to distinguish between issues which are specific to administrative rulemaking and general issues of 'good legislation' which do not involve specific features of administrative rules and administrative rulemaking.

• The question of foreseeability, stability and non-retroactivity of laws (cf. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016, para 60 and 62) is relevant to all 'laws' in a substantive sense. These principles are therefore also applicable to Parliamentary statutes. Thus, this is more a topic of constitutional law than of administrative law and a general question of legality of administration (for the pan-European general principles of legality of administration click here).

• The question of public liability for administrative rulemaking is covered by Recommendation No. R (84)15 of the Committee of Ministers to member states relating to public liability. Its scope of application explicitly encompasses liability for "normative acts in the exercice of regulatory authority" (cf. Appendix – Scope and definitions No. 4 lit a) and para. 12 of the Explanatory memorandum (p. 12 of the Final Activity Report of the CDCJ on Public Liability (CM(84)155-add1). This issue shall be dealt with together with the other pan-European general principles on public liability (click here).

Finally, the scope of the pan-European general principles on discretion do not cover the discretion to which each administrative rule maker is entitled when enacting rules of general application (for the pan-European general principles on discretion click here). Limiting and "framing" the executive's discretion in deciding which generally applicable rules to adopt is thus an issue addressed by the pan-European general principles on administrative rules and administrative rulemaking. They deal with it by submitting administrative rules to the supremacy of the legislature (infra II 1) and by providing procedural rules (infra III).

II. Rulemaking Powers of the Executive and their Limits

1. Supremacy of the Legislature

2. Constraining the executive to its own rules

1. Supremacy of the Legislature

Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016, para. 49:

"A. Legality
[...]
4. Law-making powers of the executive

Is the supremacy of the legislature ensured?

i. Are general and abstract rules included in an Act of Parliament or a regulation based on that Act, save for limited exceptions provided for in the Constitution?

ii. What are these exceptions? Are they limited in time? Are they controlled by Parliament and the judiciary? Is there an effective remedy against abuse?

iii. When legislative power is delegated by Parliament to the executive, are the objectives, contents, and scope of the delegation of power explicitly defined in a legislative act?

49. Unlimited powers of the executive are, de jure or de facto, a central feature of absolutist and dictatorial systems. Modern constitutionalism has been built against such systems and therefore ensures supremacy of the legislature.²⁹"

Footnote 29 refers to ECtHR [Plenary], The Sunday Times v. the United Kingdom (No. 1) (6538/74) 26 April 1979 ECtHR, para 46 ff. – However, this is about the specifics of common law and whether common law (judge made law) can be considered as a legal basis for infringement in individual rights.

Cf. furthermore Venice Commission, Compilation of Venice Commission opinions and reports concerning separation of powers (CDL-PI(2020)012) of 8 October 2020 , pp. 10 ff.

2. Constraining the executive to its own rules

That the executive is bound by its own rules and cannot neglect them without changing them first seems to be so obvious that it is rarely really spelled out.

Cf., however, ECJ, judgement NTN Toyo Bearing v Council (133/77) 29 March 1979:

"21. The argument that Regulation No 1778/77 constitutes a measure sui generis based directly on Article 113 of the Treaty and not subject to the provisions of Regulation No 459/68 disregards the fact that the whole proceeding in question was carried out within the context of the provisions laid down by that regulation. The Council, having adopted a general regulation with a view to implementing one of the objectives laid down in Article 113 of the Treaty, cannot derogate from the rules thus laid down in applying those rules to specific cases without interfering with the legislative system of the Community and destroying the equality before the law of those to whom that law applies."

Furthermore, ECJ, judgement CIRFS and Others v. Commission (C-313/90) 24 March 1993:

"42. In that regard, the Commission has argued that the discipline [a binding rule of general application enacted by the Commission] was amended by a decision of June 1988 by which it authorized the grant of aid to a German manufacturer of synthetic fibres, Faserwerk Bottrop, for the establishment of a new unit for the production of very fine and non-woven discontinuous polypropylene and polyethylene fibres, and which was based on the finding that the unit could not supply the traditional textile and clothing sector, the only sector, in the Commission' s view, covered by the discipline. According to the Commission, that decision constituted an implied amendment of the discipline which it has subsequently had to take into account in order to comply with the principle of equal treatment. In addition, the Commission considers that CIRFS took note of that implied amendment, in particular in so far as it requested, with a view to the renewal of the discipline in 1989, that it be extended to cover high-strength filaments, that is to say filaments for industrial applications.
43. That line of argument must be rejected.
44. A measure of general application cannot be impliedly amended by an individual decision.
45. Furthermore, neither the principle of equal treatment nor that of the protection of legitimate expectations may be relied upon in order to justify the repetition of an incorrect interpretation of a measure."

III. Administrative Rulemaking Procedures

1. Procedures Leading to the Establishment, Amendment and Repeal of 'Regulatory Decisions' in the Sense of Article 11 (2) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

2. Inapplicability of Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons

3. Concretisation of the pan-European general principles on administrative rulemaking by non-CoE Sources?

1. Procedures Leading to the Establishment, Amendment and Repeal of 'Regulatory Decisions' in the Sense of Article 11 (2) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

Section II of Recommendation CM/Rec(2007)7 also apply to 'regulatory decisions' which consist of 'general applicable rules' taken by 'public authorities' (cf. Article 11 (2) CM/Rec(2007)7). However, when looking more closely only the following rules of this recommendation apply to 'regulatory decisions':

"Article 12- Initiation of administrative decisions
Administrative decisions can be taken by public authorities either on their own initiative or upon request from private persons".

"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) [...]."

Article 19 – Entry into force of administrative decisions
(1)  Administrative decisions shall not take effect retroactively with regard to a date prior to their adoption or publication, except in legally justified circumstances.(
(2) Except in urgent cases, administrative decisions shall not be operative until they have been appropriately published."

See also the discussion of this topic the meeting report on the 4th meeting (10-12 July 2006) of the Working Party of the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 18 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

2. (In-)Applicability of Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons?

Scope and definitions following the Appendix to Recommendation No. R (87)16:

"The present recommendation applies to the protection of the rights, liberties and interests of persons in relation to non-normative administrative decisions (administrative acts) which concern a large number of persons [...]."

The Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2) does not explain the exclusion of "normative administrative decsions" (cf. para. 9).

However, the procedural rules of this recommendation could (at least) partly 'fit' to rule making procedures, above all those rules regarding the participation of

• persons "whose individual rights, liberties or interests are liable to be affected by the administrative rule" ("persons of the second category" in the sense of Recommendation No. R (87)16)

• persons "who, according to national law, have the right to claim a specific collective interest that is liable to be affected" by the administrative rule ("persons of the third category" in the sense of Recommendation No. R (87)16)

See, furthermore. the Guidelines for civil participation in political decision making (adopted by the Committee of Ministers on 27 September 2017)

3. Concretisation of the pan-European general principles on administrative rulemaking by non-CoE Sources?

a) Article 8 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, Liechtenstein, Monaco, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby also concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.

"Article 8 - Public Participation During the Preparation of Executive Regulatons and/or Generally Applicable Legally Binding Normative Instruments
Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. To this end, the following steps should be taken:
(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through representative consultative bodies.
The result of the public participation shall be taken into account as far as possible.

b) Scholarly Work

Cf., e. g., Book II on Administrative Rulemaking of the ReNEUAL Model Rules on EU Administrative Procedure and the sources cited in the explanations.

Cf., furthermore, the comparative analyses of administrative rulemaking procedures in

• CoE (ed.), Public participation in the preparation of legislative and administrative acts (1977)

• J.-B. Auby and T. Perroud (eds.), Droit comparé de la procédure administrative / Comparative Law of Administrative Procedure (2016), pp. 245 – 341 (Part II Titre II: "La participation à l’élaboration des règlements administratifs")

• K. M. Stack, 'Rule- Making Regimes in the Modern State' in P. Cane, H. C. H. Hofmann, E. C. Ip and Peter L. Lindseth (eds.), The Oxford Handbook of Comparative Administrative Law (2021), pp. 553 – 576

IV. Administrative Rules and Judicial Review

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

2. Article 22 (1) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

1. 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. All administrative acts should be subject to judicial review. Such review may be direct or by way of exception.
b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power.
c. Unless national law provides for exceptions in important cases, the administrative authority should make available to the tribunal the documents and information relevant to the case."

Cf. the definition set out in Part A (2) a of Recommendation Rec(2004)20:

"By 'administrative acts ' are, inter alia, meant "legal acts – both individual and normative – [...]  taken in the exercise of public authority which may affect the rights or interests of natural or legal persons."

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):

"Principle 1.a.
29.  This principle mainly concerns the subject of judicial review, viz administrative acts as defined in this Recommendation. Review may take two forms. It is direct when it deals with the act contested before the court. It is by way of exception when, in proceedings concerned with an act, the tribunal reviews another act connected with it (for instance, when the tribunal reviews the lawfulness of the normative act on which the decision challenged is based). It should be noted that if an administrative act cannot be referred direct to a tribunal (as is the case with normative acts in several legal systems), the state should ensure that the act can be reviewed by way of exception."

See on the distinction between direct and indirect review of administrative rules from a comparative perspective M. Eliantonio and D. Dragos (eds.), Indirect Judicial Review in Administrative Law - Legality vs Legal Certainty in Europe (2022)

Click here for information on the genesis of Recommendation Rec(2004)20

2. Article 22 (1) Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

Section III of Recommendation CM/Rec(2007)7 also apply to 'regulatory decisions' which consist of 'general applicable rules' taken by ‘public authorities' (cf. Article 11 (2) Recommendation CM/Rec(2007)7).

"Article 22 - Appeals against administrative decisions
(1) Private persons shall be entitled to seek, directly or by way of exception, a judicial review of an administrative decision which directly affects their rights and interests.
(2) [...]."

"Private persons" are defined in Article 1 (3) of Recommendation CM/Rec(2007)7 as "individuals and legal persons under private law who are the subject of activities by public authorities" - 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. 43 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

Article 22 (1) of Recommendation CM/Rec(2007)7, thus, clearly favours the possibility of a direct review of 'regulatory administrative decisions' upon appeal by the persons which are directly affected by the 'regulatory administrative decisions' in their rights and interests.