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The Pan-European General Principles on Administrative Organisation

(compiled by Ulrich Stelkens)

I. Blurred Lines Between Law of Administrative Organisation, Public Service Law and E-Administration

II. Guidelines for Organising Administration

III. Balancing Political Accountability and Depoliticised Administrative Decision-Making 

IV. Privatisation and its Consequences

V. Transfrontier Cooperation

I. Blurred Lines Between Law of Administrative Organisation, Public Service Law and E-Administration

 "Whereas law needs an organization to be brought into being and effect - in all its functions and facets - it is law itself creating an organization. The law of administrative organization is a set of rules, principles and institutions that builds and shapes the organized emanation of a part of executive power of a state [...]." (M. Ruffert, Law of Administrative Organization of the EU (2020), p. 7 f. ).

Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe:

"2. The Assembly invites Council of Europe member states to engage, where necessary, on reforms to modernise and streamline public administrations, in particular by introducing e-administration so as to give citizens easier access to information, eliminating obsolete or inefficient services, and introducing effective and clear administrative procedures that define the boundaries of unlawful behaviour and ensure compliance with principles of ethics. Such an approach would render European public administrations in need thereof more transparent, efficient and responsive both to changes in citizens’ concerns and to an evolving international environment characterised by rapid technological progress and growing economic interdependence.
3. The Assembly, recalling that the Council of Europe was established to foster pluralist democracy, the respect for human rights and the rule of law, invites its member states to place the interests of their citizens and Europe’s common values at the heart of administrative reform as outlined above. Such a move, far from diminishing the essential qualities of public institutions, namely efficient operation and popular confidence, would in fact achieve quite the opposite. These reforms, guided by the general public interest, should be based on commonly shared ethical principles and flexible human resources management methods.
4. In view of the unique role and contribution of public administrations to social cohesion and employment, the Assembly encourages Council of Europe member states to consider carefully all possible consequences before introducing new, private sector-oriented management methods.
5. Council of Europe member states should devolve wherever possible administrative responsibilities to local authorities so as to bring public institutions closer to citizens and to streamline organisational structures.

The Reply from the Committee of Ministers adopted at the 864th meeting of the Ministers’ Deputies (4 December 2003) focuses on civil service legislation and does not deal with reform of administrative organisation.

For the pan-European general principles on the status of public officials click here

For the pan-European general principles on digitalisation of public administration, e-Government and (semi-) automated administrative decision-making click here

II. Guidelines for Organising Administration

1. Defining tasks, competences and powers

2. Clearly limiting tasks, competences and powers clearly

3. Effectively distributing tasks, competences and powers

4. Considering democratic legitimacy standards when assigning tasks, competences and powers

1. Defining tasks, competences and powers

CoE (ed.), The administration and you (1st edition 1996/1997), p. 11:

"12.1. [...]. Public tasks can be conferred by law, decree or, in certain cases, by administrative acts, to private persons or entities who, while performing the task, may be entitled to 'exercise public authority'. This is why the definition given here uses a functional criterion, that is the exercise of powers or prerogatives exceeding the rights or powers of ordinary persons. The public or private quality of the entity or person is not decisive. What matters is the nature of the powers it exercises. Such powers are defined by national law with respect of different activities (tasks). The exercise of public authority for performing a given task may be authorised in some states, but not in others."

CoE (ed.), The administration and you (2nd edition 2018), pp. 7 f.

"Public sector reform
Over time, privatisation and nationalisation can change the public sector and the services it provides. Change can also arise as a result of changes in funding arrangements where the state decides in specific cases to be no longer responsible for the direct delivery of particular services (for example, in the areas of health and education). The state may instead decide to confer responsibility for the delivery of services to a private agency or possibly the voluntary sector whose operations might be supported either wholly or in part by public funds. In addition, decentralisation or federalisation can bring delivery of some public services closer to the individual, while centralisation can move them away, unless the centralised agency delivers its services through a local office. Whatever the context, the principles in this handbook are relevant so long as the service provided and the decision-making process that relates to it retains a public character. This is also the reason why these principles apply not only to public officials but also to private bodies which discharge public or quasi-public functions [...]."

2. Clearly limiting tasks, competences and powers

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

"Article 2 - Principle of Lawfulness.
(1) [...].
(2) [Public authorities] shall comply with domestic law, international law and the general principles of law governing their organisation, functioning and activities.
(3) [Public authorities] shall act in accordance with rules defining their powers and procedures laid down in their governing rules."

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

CoE (ed.), The administration and you, 1st edition 1996/1997, p. 13

"16. [...]. Implicitly, the principle of lawfulness also means that the law as to the functions and powers of the administrative authorities should be validly enacted and sufficiently clear and specific."

CoE (ed.), The administration and you (2nd edition 2018), p. 9:

"The content of decisions taken by public authorities and the manner in which they are taken must have a basis in law. Where a public authority acts outside or beyond its powers (ultra vires), then the action will be unlawful. So that the public may understand the nature and the extent of a public authority's powers, these powers should be clear, precise and published widely."

ECtHR, judgement Stretch v. UK (44277/98) 24 June 2003:

"38. The Government have emphasised in this case the doctrine of ultra vires which provides an important safeguard against abuse of power by local or statutory authorities acting beyond the competence given to them under domestic law. The Court does not dispute the purpose or usefulness of this doctrine which indeed reflects the notion of the rule of law underlying much of the Convention itself. It is not however persuaded that the application of the doctrine in the present case respects the principle of proportionality.
39. The Court observes that local authorities inevitably enter into many agreements of a private law nature with ordinary citizens in the pursuance of their functions, not all of which however will concern matters of vital public concern. In the present case, the local authority entered in a lease and was unaware that its powers to do so did not include the possibility of agreeing to an option for renewal of the lease. It nonetheless obtained the agreed rent for the lease and, on exercise of the renewal of the option, had the possibility of negotiating an increase in ground rent. There is no issue that the local authority acted against the public interest in the way in which it disposed of the property under its control or that any third party interests or the pursuit of any other statutory function would have been prejudiced by giving effect to the renewal option. The subsequent statutory amendments further illustrate that there was nothing per se objectionable or inappropriate in a local authority including such a term in lease agreements.
40. The Government argued that the applicant, as with all persons entering into contract with the local authority, should have been aware of the consequences of any incapacity and that he had the opportunity to take legal advice, or sue his solicitors for negligence in giving any such advice. Since however the local authority itself considered that it had the power to grant an option, it does not appear unreasonable that the applicant and his legal advisers entertained the same belief. While the Government also referred to the doctrine of ultra vires being mitigated by the principles of unjust enrichment, it is not suggested that in this case the applicant had any possibility to obtain some kind of compensation for the application of the rule in his case. The applicant not only had the expectation of deriving future return from his investment in the lease but, as was noted in the Court of Appeal, the option to renew had been an important part of the lease for a person undertaking building obligations and who otherwise would have had a limited period in which to recoup his expenditure.
41. Having regard to those considerations, the Court finds that in this case there was a disproportionate interference with the applicant’s peaceful enjoyment of his possessions and therefore, concludes that there has been a violation of Article 1 of Protocol No. 1 to the Convention."

Similar case law of the ECtHR

3. Effectively distributing tasks, competences and powers

General Principles of Administrative Organisation underlying Recommendation No. R (95)19 of the Committee of Ministers to member states on the implementation of the principle of subsidiarity implying

  • that the rules governing the organisation of administration shall in general assure that a task is fulfilled by those public entities which has the material equipment /staff corresponding to the demands of this task
  • that the principles of organisation of powers should be in general designed to match powers with the characteristics (resources, size, geographical location, etc.) of the public authority in charge

  • that effective performance of tasks assigned to an administrative authority demands the provision of adequate human and financial resources

Click here for more information on Recommendation No. R (95)19 of the Committee of Ministers to member states on the implementation of the principle of subsidiarity

4. Considering democratic legitimacy standards when distributing tasks, competences and powers

Overall, the pan-European general principles on administrative organisation do not provide neither a 'checklist', nor a 'theory' of (minimum) standards of democratic legitimacy to be considered when distributing tasks, competences and powers to administrative bodies. That all state action - including administration - needs democratic legitimacy is a principle which underlies, however, the Preamble to the ECHR:

"Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend."

a) Case law of the ECtHR on the 'appraisal' of 'effective political democracy' in the Preamble to the ECHR

ECtHR (GC), judgement Ždanoka v. Latvia (58278/00) 16 March 2006:

"98. Democracy constitutes a fundamental element of the "European public order". That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights. The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. This common heritage consists in the underlying values of the Convention; thus, the Court has pointed out on many occasions that the Convention was in fact designed to maintain and promote the ideals and values of a democratic society. In other words, democracy is the only political model contemplated by the Convention and, accordingly, the only one compatible with it (see, among many other examples, United Communist Party of Turkey and Others, cited above, § 45; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 86, ECHR 2003-II; and, lastly, Gorzelik and Others v. Poland [GC], no. 44158/98, § 89, ECHR 2004-I).
103. The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, these rights are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere. The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews, cited above, § 63; Labita, cited above, § 201; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005-IX)."

ECtHR (Plenary), judgement Mathieu-Mohin and Clerfayt v. Belgium (9267/81) 2 March 1987:

"According to the Preamble to the Convention, fundamental human rights and freedoms are best maintained by "an effective political democracy". Since it enshrines a characteristic principle of democracy, Article 3 of Protocol No. 1 (P1-3) is accordingly of prime importance in the Convention system."

ECtHR (GC), judgement Mugemangango v. Belgium (310/15) 10 July 2020:

"67. Democracy constitutes a fundamental element of the "European public order". The rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law and are accordingly of prime importance in the Convention system (see, among other authorities, Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113; Ždanoka v. Latvia [GC], no. 58278/00, §§ 98 and 103, ECHR 2006-IV; Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 63, ECHR 2012; and Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 141, 17 May 2016)."

One may at least conclude from the 'appraisals' of 'effective democratic democracy' in the preambule of the ECHR and the case law of the ECtHR cited above that public offices in the administration can neither be acquired as "sinecures" nor inherited.

b) Limited relevance of the Article 3 Protocol No. 1 to the question of democratic legitimacy of the administration

Article 3 Protocol No. 1 to the ECHR ("The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature") concerns only the choice of the legislature (see for the case law of the ECtHR on Article 3 Protocol No. 1 to the ECHR: ECtHR (ed.), Guide on Article 3 of Protocol No. 1 to the European Convention on Human Rights - Right to free elections (version of August 2022), para. 1 ff.).

ECtHR, decision Mółka v. Poland (56550/00) 11 April 2006:

"The Court first reiterates that the term "legislature" in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian "legislature", in addition to the House of Representatives and the Senate (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23, § 53, and Matthews v. the United Kingdom [GC], no. 24833/94, § 40, ECHR 1999I).
On the other hand, the Convention organs have found that local authorities, such as the municipal councils in Belgium, the metropolitan county councils in the United Kingdom and the regional councils in France, did not form part of the "legislature" within the meaning of Article 3 of Protocol No. 1 (see Clerfayt, Legros v. Belgium, no. 10650/83, Commission decision of 17 May 1985, Decisions and Reports 42, p. 212; Booth-Clibborn v. the United Kingdom, no. 11391/85, Commission decision of 5 July 1985, DR 43, p. 236; and Malarde v. France, (dec.) no. 46813/99, 5 September 2000).
Furthermore, the power to make regulations and by-laws which is conferred on the local authorities in many countries is to be distinguished from legislative power, which is referred to in Article 3 of Protocol No. 1 to the Convention, even though legislative power may not be restricted to the national parliament alone (see Cherepkov, cited above).
The Court notes that Poland is a unitary State and that legislative power is exercised by the Sejm and the Senate (see Articles 3, 10 § 2 and 95 § 1 of the Constitution). Moreover, local government has only those powers which are not reserved by the Constitution or statutes to other public authorities (see Article 163 of the Constitution).
The municipal councils, district councils and regional assemblies are the repositories of powers of an administrative nature concerning the organisation and provision of local services. These powers are granted by statute or other subordinate legislation which defines closely and restrictively their field of application. Consequently, the municipal councils, district councils and regional assemblies do not exercise legislative power within the meaning of the Constitution of the Republic of Poland.
Furthermore, the Court notes that the legality of actions of local government at different levels is subject to control exercised by the Prime Minister and the regional governors who represent the government in each of the sixteen regions. Ultimately, in the case of a flagrant violation of the Constitution or a statute, the Sejm, acting on an application of the Prime Minister, may dissolve any municipal council, district council or regional assembly.
The Court concludes that the municipal councils, district councils and regional assemblies do not possess any inherent primary rulemaking powers and do not form part of the legislature of the Republic of Poland. Accordingly, Article 3 of Protocol No. 1 is not applicable to elections to those organs.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4."

c) Democratic legitimacy of local self-government

European Charter on Local Self-Government (ETS. No. 122):

"Article 3 - Concept of Local self-government
(1) Local self-government denotes the right and the ability of local authorities, within the limits of
the law, to regulate and manage a substantial share of public affairs under their own
responsibility and in the interests of the local population.
(2) This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute."

For the pan-European general principles on local self-government click here.

d) Democratic legitimacy of administration and civil participation in administrative decision making

For democracy and civil participation in administrative decision making see the Guidelines of the Committee of Ministers for civil participation in political decision making (CM(2017)83-final) of 27 September 2017.

In administrative law these guidelines may of relevance with regard to

  • the pan-European general principles on administrative rulemaking and civil participation (for these principles click here)
  • the pan-European general principles on spatial plannung and civil participation (for these principles click here).

See, furthermore, the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207). For its relevance for the pan-European general principles of local self-government click here.

III. Balancing Political Accountability and Institutionalised Objective Expertise

The pan-European general principles on administrative organisation do not provide much guidance on the question of whether and under which constitutional and democratic conditions administrative tasks, especially those requiring special expertise in the scientific, technical or economic fields, can or even should be entrusted with independent agencies.

See, however: ECtHR (GC), judgment Vavřička and Others v. Czech Republic (49317/07) 8 April 2021:

"296. Turning now to the applicants’ opposition to the policy of the compulsory vaccination of children, the Court observes that at the heart of their complaint lies a twofold objection. In the first place, they criticised the institutional arrangements in place in the Czech Republic in this area, contending that the discretion granted to the health authorities was excessive and that there were conflicts of interest and a deficit of transparency and public debate. The Court is not persuaded by this criticism. Regarding the scope left to the executive to devise and implement health policy, the Court has already found that no issue of quality of law arises [...]. Moreover it finds pertinent the observation of the SAC that the legislative approach employed makes it possible for the authorities to react with flexibility to the epidemiological situation and to developments in medical science and pharmacology [...]. In addition, the domestic system is, as noted above, attended by significant procedural safeguards.
297. As for the integrity of the policy-making process, the Court notes that in reply to the applicants claim about conflicts of interest the Government have explained the procedure followed by the NIC [i. e. National Immunisation Commission - Národní imunizační komise], in accordance with relevant European and international standards [...]. In the light of the elements before it, the Court considers that the applicants have not sufficiently substantiated their allegations that the domestic system is tainted by conflicts of interest, or their suggestion that the position on vaccination adopted by the relevant Czech expert bodies, or by the WHO, is compromised by financial support from pharmaceutical corporations.
298. With respect to the transparency of the domestic system and the extent to which the authorities invite public discussion, the Court notes that a degree of transparency is achieved in this respect through the publication of the minutes of the meetings of the NIC on the website of the Ministry of Health [...]. As for public participation, the Government submitted that the exclusively expert composition of the NIC was in line with the practice of many European States. The Court notes the initiative taken in 2015 to set up a platform for public discussion of vaccination policy, bringing together medical experts and civil society [...], although the applicants and the intervenor ROZALIO indicated that its meetings were few and had ceased by 2018. It cannot be said that the arrangements in force, under which policy is entrusted to an expert body operating under the aegis of the Ministry of Health, in accordance with the model chosen by the legislature and ultimately accountable to it, suffer from a serious deficit of transparency such as to call into question the validity of the vaccination policy followed by the Czech Republic."

One may conclude from this that from the perspective of the ECtHR and the CoE the transfer of tasks to independent authorities is not problematic as such as long as

  • the Member States take on themselves responsiblity under Article 1 ECHR for the acts and omissions of such authorities (cf. the wording in ECtHR (GC), judgement N.D. and N.T. v. Spain (8675/15 8697/15 ) 13 February 2020) para. 102 : "Under Article 1 of the Convention, the undertaking of the Contracting States is to "secure" ("reconnaître" in French) to everyone within their "jurisdiction" the rights and freedoms defined in the Convention ([...]. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ "jurisdiction" from scrutiny under the Convention [...]."), and
  • the independent authority itself is submitted to the pan-European general principles of good administration relevant to them, in particular the pan-European general principles on legality (for these principles click here), on administrative discretion (for these principles click here), fair administrative procedure (for these principles click here) and on judicial review (for these principles click here).

This means too, that there are no specific pan-European general principles of good administration with regard to the particular problems that arise regarding independent agencies (for an overview of this discussion in comparative administrative law and EU law: M. Ruffert, in P. Cane, H. C. H. Hofmann, E. C. Ip and Peter L. Lindseth (eds.), The Oxford Handbook of Comparative Administrative Law (2021), pp. 505 – 525), namely the problem the problem of what legal precautions to take

  • to minimise the danger that independent agencies do evolve from expertise to 'expertocracy' and, finally, to unquestioned 'expert idiocy';
IV. Privatisation and its Consequences 

1. Recommendation No R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities

2. Case Law of the ECtHR

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

1. Recommendation No R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities

For the genesis of Recommendation Recommendation No R(93)7 in general click here.

See, furthermore, Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 494 ff.):

"1. Introduction
1.3 The work on privatisation of the project group was undertaken in the light, in particular, of the papers submitted to the Council of Europe’s XXIst Colloquy on European Law, which was devoted to the subject of privatisation and was held in Budapest in October 1991, and of the contributions made and conclusions emanated not only from experts from the member states of the Council of Europe, but also from a large number of central and eastern European non-member states.
1.4 The remit of the project group is directed to questions of administrative law, and it was therefore not possible for the group to address the problems of a political and economic nature which arise in the sphere of privatisation. Such problems are particularly acute for the former socialist countries in the context of the fundamental transformation of their economies following the recent political changes in central and eastern Europe. The project group was solicitous of the views, not only of the experts from the former socialist states which are now full members of the Council of Europe, but also of experts from a considerable number of other non-member central and eastern European countries who attended and participated in the meetings of the group, in the interest of ensuring that the relevance of the recommendation would not be confined to those states in which the market economy is long established.
2. Structure and appapproach of the recommendation
2.1 [...]
2.2 The appendix to the recommendation, containing the relevant principles, commences with a section stating the scope of the recommendation and setting out the definitions of certain key terms, and is then followed by five further sections which deal with the particular topics within the sphere of privatisation which it was considered appropriate to address, namely, protection of the democratic rights of citizens, protection of users’ and consumers’ rights, protection of employees’ rights, protection of the environment and protection of potential purchasers (of the undertaking or activity to be privatised). The recommendation limits itself to setting out the principles and leaves it to the member states to determine the modalities which ensure the respect of those principles.

2.3 The margin of appreciation thus accorded to member states is all the more necessary given that, even between those member states in which the market economy has long been established, there are widely differing approaches and practices regarding privatisation. The recommendation does not seek to interfere with the discretion of member states in this regard ; it does however seek to ensure that, whatever policies they may wish to follow and procedures they wish to adopt regarding privatisation in their particular circumstances, due regard will be had to the need to ensure that certain important rights and interests which are liable to be affected by privatisation are given a certain minimum of protection. The manner in which such protection should be accorded is left to each member state to decide.
2.4 The recommendation has nothing to say to the question whether, in any particular case, an undertaking or activity should or should not be privatised. This is a matter entirely for each member state as it sees fit."

Recommendation No R(93)7:

"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
Scope and definitions
The present recommendation sets out certain principles by which member states should be guided in the interests of natural and legal persons (including groups of persons) in connection with privatisation.
For the purpose of this recommendation :
a. "privatisation" means :
i. the total or partial transfer from public to private ownership or control of a public undertaking so that it ceases to be a public undertaking ;
ii. the transfer to a private person of an activity previously carried on by a public undertaking or public authority, whether or not accompanied by a transfer of property ;
b. "public undertaking" means any undertaking over which the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial partici-
pation therein, or the rules which govern it. A dominant influence
on the part of the public authorities shall be presumed when these authorities, directly or indirectly, in relation to an undertaking :
i. hold the major part of the undertaking’s subscribed capital ; or
ii. control the majority of the votes attached to shares issued by the undertaking ; or
iii.can appoint more than half of the members of the undertaking’s administrative, managerial or supervisory body ;
c. "public authority" means :
i. any entity of public law of any kind and at any level ;
ii. any private person, when exercising prerogatives of official authority."

Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 494 ff.):

"3.2.1. [...] Thus, the subject matter of the privatisation may be an undertaking (effectively controlled by the public authorities in accordance with the definition of "public undertaking" – see below) which is already in existence at the time of the privatisation. The use of the expression "ownership or control" in this part of the definition of privatisation is intended to indicate that it is the transfer of the effective control of the undertaking in question which is the key consideration. This is consistent with the definition of "public undertaking" as an undertaking over which the public authorities may exercise, directly or indirectly, a dominant influence.
Alternatively, the privatisation may involve no alteration of ownership of any undertaking and no alteration of the ownership of any assets, but simply the transfer of the right or duty to carry out an activity previously performed by the public undertaking or the public authorities. Privatisation as defined by this recommendation covers also these types of case irrespective of the form they may take. Thus, on the one hand, the sub-contracting by a local authority of the task of rubbish collection within its functional area, which would mean that the local authority had not divested itself of its responsibility for this public utility but had arranged for the discharge of that function by a private person on the basis of a sub-contractual relationship, would be a "transfer of an activity", as would, on the other hand, for example, the simple transfer by the public authorities, lock, stock and barrel, of an undertaking such as the postal service to some private undertaking.
It has to be recognised that the term privatisation can be used to capture situations other than those covered by the definition in the rec ommendation. Thus, the withdrawal of monopoly rights guaranteed by law or the withdrawal of state financial support whereby the public undertaking is compelled to operate thenceforth in a competitive environment, to mention but two, may be regarded as forms of privatisation. In the recommendation, however, the concept of privatisation is con fined to the two categories of case just described ; these appear not only to be the main categories of privatisation as that concept is commonly understood, but also to be those categories which most obviously give rise to the need for protection of the individual.
Nonetheless, it is recognised that some of the principles in this recommendation may be relevant to changes in the status of public undertakings which fall short of "privatisation" as defined in this recommendation.
Thus, member states should consider the need to apply these principles in the context of a change in the status of a public undertaking which, though not in itself constituting a privatisation as defined by the recommendation, affects the concerns to which the recommendation is addressed. Such would, for example, be the case where a public undertaking which was governed by public law was to be converted into a private corporation, the shares of which remained in the ownership of the state, but which, from the outset was intended in due course to be privatised according to the definition of the recommendation.
The definition of "public undertaking" is based on the existence of a dominant influence on the part of the public authorities over the undertaking. This dominant influence may exist by virtue of ownership, financial participation or the rules governing the undertaking. The definition is identical to that contained in the Directive of the Council of the European Communities No. 80/723/EEC of 25 June 1980 on the transparency of financial relations between the member states and public undertakings (Official Journal of 1980, No. L195, p. 35).
The definition of "public authority" is drawn from the previous recommendation of the Committee of Ministers on Public Liability (No. R (84)15)."

Recommendation No R(93)7:

"Appendix to Recommendation No. R (93)7
Section 1 : Protection of the democratic rights of citizens

Where proposed privatisation or a programme of privatisation is important, whether by reason of its scale or of the number of the public undertakings or the nature of the activities involved, the public authorities should ensure that the general public receives the information necessary for the effective exercise of democratic control. Information should be given on the reasons for the decision to privatise and the conditions under which the privatisation is to take place.
The disclosure of such information should only be limited to the extent that the general interest or requirements of confidentiality guaranteed by law render this necessary.
The public authorities should indicate the reasons which have led them not to disclose such information, unless such indication would of itself prejudice the interests which gave rise to such non-disclosure.
Section 2 : Protection of users’ and consumers’ rights
In the case of privatisation concerning :
a public utility, such as the provision of public transport, telecommunications, water, gas, electricity, as well as any other activity determined by national law to be in the nature of a public utility, or
a monopoly providing goods or services to a large public which will continue to be a monopoly after privatisation
he conditions of the privatisation should be determined with due regard
to the continuity, accessibility (including price) and quality of the service in the public interest. Consultation of consumers or users should take place where this is appropriate.
The interests taken into account pursuant to the previous paragraph should, if necessary, be safeguarded by means of a regulatory authority with effective possibilities to compel compliance on the part of the privatised undertaking or on the part of the person carrying out the privatised activity, or by other effective means including, where appropriate, the availability of speedy and inexpensive judicial or administrative remedies or arbitration.
Before proceeding to such a privatisation, the public authorities should inform, by any appropriate means, the users or consumers of the ways in which they intend to protect the interests taken into account pursuant to the two preceding paragraphs."

For the "public utility doctrine" underlying Section 2 of the Appendix to Recommendation No. R (93)7 click here

"Section 3 : Protection of employees’ rights

Section 4 : Protection of the environment
The conditions imposed on the privatised enterprise or on the person carrying out the privatised activity should have due regard to the necessity to protect the environment.
The privatisation should not jeopardise the possibility of obtaining compensation for damage caused to the environment by the undertaking or activity in question by reason of its operations prior to the privatisation.
Section 5 : Protection of potential purchasers

For the "privatisation procedures" foreseen in Section 3 of the Appendix to Recommendation No. R (93)7 click here

2. Case Law of the ECtHR

ECtHR, judgement Mykhaylenky and Others v. Ukraine (35091/02) 30 November 2004:

"44. In this respect the Court considers that the Government have not demonstrated that Atomspetsbud enjoyed sufficient institutional and operational independence from the State to absolve the latter from responsibility under the Convention for its acts and omissions.
45. The Court notes that it is not suggested by the Government or by the materials in the case file that the State’s debts to the company […] had ever been paid in full or in part, which implies that the State is liable for the company’s ensuing debts. The debtor company had operated in the highly regulated sphere of nuclear energy and conducted its construction activities in the Chernobyl zone of compulsory evacuation, which is placed under strict governmental control on account of environmental and public-health considerations […]. Moreover, the management of the company was transferred to the Ministry of Energy as of May 1998 […]. In the Court’s opinion, these elements confirm the public nature of the debtor company regardless of its formal classification under domestic law. Accordingly, the Court concludes that there are sufficient grounds to deem the State liable for Atomspetsbud’s debts to the applicants in the special circumstances of the present case, despite the fact that the company was a separate legal entity.
46. Accordingly, the Court finds that the applicants’ complaint is compatible ratione personae with the provisions of the Convention, and dismisses the Government’s objection in this respect."

Similar case law od the ECtHR on the 'responsibility' of the state for separate legal entities (governed by private law) which do not enjoy "sufficient institutional and operational independence from the State" to absolve the latter from its responsibility under the ECHR:

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

"A. Legality [...].
8. Private actors in charge of public tasks

Does the law guarantee that non-State entities which, fully or in part, have taken on traditionally public tasks, and whose actions and decisions have a similar impact on ordinary people as those of public authorities, are subject to the requirements of the Rule of Law and accountable in a manner comparable to those of public authorities?40

56. There are a number of areas where hybrid (State-private) actors or private entities exercise powers that traditionally have been the domain of State authorities, including in the fields of prison management and health care. The Rule of Law must apply to such situations as well."

Footnote 40: "Cf. Article 124 of the Constitution of Finland: "A public administrative task may be delegated to others than public authorities only by an Act or by virtue of an Act, if this is necessary for the appropriate performance of the task and if basic rights and liberties, legal remedies and other requirements of good governance are not endangered."

V. Transfrontier Cooperation

For the pan-European general principles on transfrontier cooperation in the provisions of public services click here