Good Administration in Europe In Europe, each country has developed its own tradition of what it considers to be good administration. Its own practice is considered normal and considers everybody elses as strange or foreign. However, over the past 30 or so years, there seems to a growing consensus of what good administration should mean – at least in a legal sense. I will focus my presentation on the right to good administration and what it means in different parts of the European union. I will focus on its history, present development and possible futures. Impossible to do justice to such a diversity in 30minutes, I have to restrain myself to only focus on some of the general features we have discovered. My nam is Magnus Enzell, PhD in Political Science, adviser at Swedish Agency for Public Administration. The agency conducts investigations on commission from the government on subjects related to administrative policy. Magnus Enzell Swedish Agency for Public Administration

Good administration as individual right Council of Europe Resolutions Resolution 77 (31) I - Right to be heard II - Access to information III - Assistance and representation IV - Statement of reasons V - Indication of remedies Project group on administrative law (CJ-DA) Cas Law European Court of Justice and of First Instance administration through law, non-discrimination, proportionality, legal certainty, legitimate expectations, The right to a hearing before an adverse decision is taken by a public authority. The Swedish government’s representative argued that the right to Good Administration should have a specific legal base in the treaty. The intention was to create a foundation for a law on good administration for the institutions of the Union. This initiative did not come out of the blue however, it has a distinct pre-history that I will shortly refer to here. In 1977, the Council of Europe wanted to improve the individual’s procedural position vis-à-vis the administration by promoting rules, which ensured fairness in the relations between the citizen and the administrative authorities. In retrospect, this resolution was the first step towards establishing a common European concept for regulating administrative procedures. It established a set of principles that today are commonly held as central for the right to good administration. The Council of Europe has since then continued to issue resolutions related to good administration. The Committee of Ministers has recently instructed its Project group on administrative law (CJ-DA) to examine the feasibility of preparing a consolidated model code of good administration based on all principles contained in its Recommendations and Resolutions.TP The European Courts has also over the years recognised an number of general administrative principles and stressed the importance of procedural guarantees as a counterweight to administrative discretion in the European union. Such reasoning can be interpreted as an evolution away from the original French-inspired tradition towards a more rights-based view of community administrative procedures.

The Charter of Fundamental Rights Article 101: Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. This right includes: The right of every person to be heard The right of every person to have access to his or her file The obligation of the administration to give reasons for its decisions right to have the Union make good any damage caused by its institutions write in one of the languages of the Constitution and have an answer in the same language Article 102: Right of access to documents: Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents. The right to good administration as well as the right of access to documents was included in the Charter of Fundamental Rights of the European Union, which was signed and proclaimed in Nice on 7 December 2000. Article 41 contains the Right to good administration. Note: 1. The right to good administration is treated as a category of rights rather than as a right in its own. It represents the group of rights that is listed in paragraphs two to four. 2. The list should not be seen as exhaustive, so the right to good administration can include other rights than the ones listed in the article.

European Code of Good Administrative Behavior “Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it”. "Officials who follow it can be sure that they will avoid instances of maladministration”. On 6 September 2001, the European Parliament adopted the Ombudsman’s Code in a resolution. EP resolution called on the European Commission to submit a proposal for a regulation built upon the Code of Good Administrative Behaviour Article 308 The Maastricht Treaty established the institution of the European Ombudsman with the purpose to combat maladministration in the activities of Community institutions and bodies. The Ombudsman created in the year 2000 a Code of Good Administrative Behaviour that contains 27 articles, which in different ways are meant to function as rules on good administration. It was intended to explain in more detail what the Charter’s right to good administration should mean in practice. The Code is directed towards the institutions and bodies of the European Union and it is expected that their administrations and officials should adopt their own codes or respect the Ombudsman’s Code in their relations with the public. The EP resolution further called on the European Commission to submit a proposal for a regulation built upon the Code of Good Administrative Behaviour. It was proposed that such a regulation could be based on Article 308 of the Treaty establishing the European Community. The Commission has so far not headed this plea because Article 308 because the use of Article 308 demands unanimity by the Council. In some Member States there is a general opposition to the use of Article 308, since it is seen as a way of extending the powers of the Union.

Article III-398 in the Constitutional Treaty Swedish initiative provide a legal base for a law on good administration existing procedural rules were considered fragmentary and difficult for ordinary citizens to comprehend Article III-398: In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration. In compliance with the Staff Regulations and the Conditions of Employment adopted on the basis of Article III-427, European laws shall establish provisions to that end. The Swedish governments representative to the Convention on the Future of Europe argued that the right to good administration should have its own legal bas in the treaty. The intention was to provide a legal base for a law on good administration since the existing procedural rules were considered fragmentary and difficult for ordinary citizens to comprehend. This should be viewed as a continuing interest in improving the administration of the EU by increasing the transparancy of the procedures. Comments on the paragraph: Firstly: The three words in the first paragraph are central, open, efficient and independent. Secondly: the scope covers all bodies of the Union, not anly the institutions. Thirdly: European laws in the second paragraph are written in plural. The article can thus be used for other purposes than enacting a law on good administration for the institutions, agencies and administrative organs of the European Union.

The report 12 central principles selected from central documents Questionnaire with 12 questions Distributed to Swedish embassies in the EU Mission: identify a suitable English-speaking officer Expert meeting with discussion protocol in report http://www.statskontoret.se/good_administration In order support the expected negotiations on a law on good administration the Swedish government deemed it important to increase the understanding of the administrative rules in other Member States of the European Union. It therefore commissioned the Swedish Agency for Public Management to conduct such a survey. The purpose of the study was to examine if and to what extent some of the core principles of good administration had been transformed into legally binding rules in the Member States of the European Union. Based on the documents presented here the project group selected the project team designed a questionnaire focused on key principles of the legal concept of good administration. The questionnaire was distributed to all Swedish embassies in the European Union with a request to identify a suitable English-speaking officer in each respective Member State administration that could answer the questionnaire. All replies are public documents in Sweden and some are published on the following Internet address. While awaiting the responses to the questionnaire, the Agency also organised an Expert Meeting focused on the question of a law on good administration for the institutions of the European Union as well as the broader question of a European administrative area.

Main conclusions One common core Two legislative techniques Most principles codified in binding constitutional or statute legislation Two legislative techniques General concepts vs. specified lists Three sets of differences Function, Regulation, Control Four traditions of administrative law Administration-centred (the executive) Individual-centred (the courts) Legislator-centred (the legislator) Ombudsman-centred (the ombudsman) The examination of the of the answers shows that most of the selected principles have indeed been codified in binding constitutional or statute legislation. This is more or less true of all the concerned principles to the extent that it at least is possible to outline a One shared core of principles of good administration among the Member States of the European Union. Two legislative techniques Three sets of differences between the countries. Four traditions of administrative law among the countries.

One common core accepted by Member States The principles of lawfulness, non-discrimination, proportionality The right to have ones affairs handled impartially and fairly and within a reasonable time The right to be heard before any individual measure is taken that would affect the citizen adversely. The right to have access to his or her file, regarding any individual measure that would affect him or her. The right of access to documents The obligation to state reasons in writing for all decisions. The obligation to give an indication of remedies available to all persons concerned The obligation to notify all persons concerned of a decision. The obligation to be service-minded The following principles of good administration are embraced by a majority of the Member States: In one case, the obligation to document administrative processes, it was not possible to tell from the answers received, if there indeed were clearly enacted rules in that area. The only other principle, which does not seem to enjoy equal recognition as the others, is the obligation to keep registers. The answer is not very surprising since many emanate from Council of Europe resolutions. This means that the signatory states should have imple­mented these principles in some form or another.

Two different legislative techniques Either a general rule: Latvian Administrative Procedure Act An official in respect of whose impartiality there may exist justified doubts shall not participate in the taking of the decision. Or specified lists: Finnish Administrative Procedure Act (1) the spouse of the official, a child, grandchild, sibling, parent, grandparent of the official, a person otherwise especially close to the official, as well as the spouse of the same; (2) a sibling of a parent of the official and the spouse of the same, a child of a sibling of the official and a previous spouse of the official; and (3) a child, grandchild, sibling, parent and grandparent of the spouse of the official, the spouse of the same, as well as a child of a sibling of the spouse of the official. A comparable half-relative shall also be considered a close person. For pur­poses of this section, a spouse is defined as a partner in wedlock, a domestic partner and a partner in a registered partnership. Having said that the Member States indeed share many principles of good administration, we must take note of the differences. If we look into the details of the different legislative acts there is clear that different legislators have shown great creativity in how they designed the different rules in practice. A common difference between different legislators is whether they use a general concept in order to let the courts specify its closer meaning afterwards, or alternatively specify a list that attempts to capture essential provisions beforehand. Latvia for example uses the term “justified doubts” in order to capture the grounds for disqualification while e.g. Finland has a long list of possible grounds. The obvious advantage with the abstract alternative is that one doesn’t prevent a dynamic development in the field. On the other hand, an abstract concept leaves plenty of room for administrative discretion in its application. Different techniques also shift the balance between institutions. A general concept levaes ample room for interprettion by the court, a list ensures that the legislator (parliament) retains the control of the interpretation of the law.

Three sets of differences in administrative law As noted above, even though a rule looks the same across a number of countries, it doesn’t mean that it is interpreted or applied the same way. There are at least three different views on adminisrtrative law worth noting that gives ries to differences between the member states. Control: Review vs. procedure There are also different views on how the administration should be controlled. Judicial review of adminstrative decisions focuses on correction of illegal or faulty decisions. This view can be characterised as a negative approach since the main thrust is directed against arbitrary decisions but not necessarily in favour of good quality decisions. A complementary view focuses on designing administrative procedures with the help of legal instruments. The general ideas is that if public administrations follow proper procedures, the probability of making good decisions increases dramatically. Good administrative practices is better than remedies for bad administration. It is the latter perspective that has gained ground in Europe and in the European Union through the developments that I related to above. Function: Effeciencey vs. protection Administrative law, has historically fulfilled two different functions, which has generated two different views on the function administrative law. On the one hand, it has functioned as a tool for governments to run an efficient administration. If we view administrative law from this perspective we can see it as a body of law designed for the implementation of policies. On the other hand, it has also acted as a shield for citizens against arbitrary decision-making. The latter perspective sees the body of law as regulating citizen-state relations, taking the citizen’s side. In the EU: to some extent, it is also possible to see these perspectives as historically consecutive. The latter citizen-oriented perspective grew out of the efficiency-oriented, originally French, perspective. Regulation: Hard vs. soft law Two views on what legal status the regulation should have and how it should be implemented. Legal codification: hard law Other codification: soft law Lots of arguments for and aginst, no time to go in to those. But Sweden argues that there ought to be a law on good administration for the union. § 398 supports this notion. Control: Review vs. procedure directed against arbitrary decisions but not necessarily in favour of good quality decisions good administrative practices are better than remedies for bad administration Function: Efficiency vs. protection tool for governments to run an efficient administration shield for citizens against arbitrary decision-making Regulation: Hard vs. soft law Administrative procedure acts, information acts Codes of administrative behavior, ethical codes

Four traditions of administrative law The development of administrative law has always been deeply influenced by European history, culture and constitutional contexts and it is important to keep in mind that the subject of this survey, principles and rules of good administration will be interpreted differently depending on the tradition of the Member State in question. From the literature, we can infer at least four traditions of administrative law in Europe.TPPT ·        The administration-centred tradition views administrative law as a tool for governments to run an efficient administration. As such, it is designed for the construction of efficient administration and implemen­tation of policies. Such a view is often associated with France and countries influenced by French legal traditions. ·        The legislator-centred tradition relies on the legislator to design admi­nistrative procedures, often in the form of a very detailed administrative procedure act, or in some cases in the form of constitutional provisions. This represents the German ethos of the Rechtsstaat where the admini­stration is viewed as a mere executant of the law. The result is a formalist, almost court-like, approach to administration. Germany might be seen as the typical case, but also some of the newer Member States of the European Union can be said to represent this tradition. ·        The individual-centred tradition tends to treat administrative law as an instrument for controlling government and protect individuals from infringements of their rights. It views administrative law as the rules that keeps the government within its legitimate boundaries and thus regulates the relationship between the State and the Citizens. Such views are often associated with Anglo-Saxon common-law countries, which possess a single jurisdiction for all types of cases.TPP ·        The ombudsman-centred tradition is representative of the Scandinavian countries. Characteristic of this more pragmatic tradition is that an independent person, who is often appointed by the parliament, works out­side of the executive in order to identify, investigate and recommend solutions to cases of maladministration. In those cases where an Ombuds­man has emerged as the primary means of redress for citizens who have suffered injury by the administration, the development of a strong litigation culture has often not taken place. In reality, none of these ideal types of traditions can single-handedly represent any sin­gular state. Where one tradition may dominate, the others are likely to be represented in part. This is especially true for the European union. The European Union has generated its own particular blend of traditions. While the administrative system of the European Union was initially modelled on the French system, subsequent developmentsTPPT led to a growing emphasis on individual rights in administrative procedures and lately, after Maastricht, by an independent Ombudsman focused on the fight against maladmini­stration. As we have seen above, at least five institutions have, in their own way, contributed to this development and to what we today mean by the legal concept of good administration: the Council of Europe, the Court of Justice and the Court of First Instance, the European Ombudsman, and some of the Member States of the European Union. Four traditions of administrative law Administration-centred (executive) Law as a tool for governments to run an efficient administration often associated with the original french tradition and countries influenced by French legal traditions Legislator-centred (legislator) The administration is viewed by the legislator as a mere servant or executor of the law - German tradition Individual-centred (courts) Courts protect individuals from infringements of their rights – Anglo-saxon tradition Ombudsman-centred (ombudsman) Pragmatic investigations and recommendations by independent person outside the executive – Scandinavian tradition

Summary One common core of principles of good administration exists among the member states of the European union but transformed into legally binding rules in different ways Two different legislative techniques give different institutions different roles Three sets of differences from different views on: Function, Regulation, Control Four traditions of administrative law centred on four different institutions: the executive, the legislator, the courts and the ombudsman Challenge will be to learn from different traditions in order to bring out the best qualities of each tradition while preventing the negative effects to influence the European Union The right to good administration and its legal base in Article III-398 seems to have the potential to further develop the particular blend of administrative law traditions characteristic of the European Union. The future designers of a law on good administration thus needs to learn from the different traditions of the Member States in order to bring out the best qualities of each tradition while preventing the negative effects of each. Subsequently they need to continue to complement the original administration-centred tradition with an appropriate blend of the individual-centred, legislator-centred and ombudsman-centred tradition in order to properly balance the rights of the individual and the European public interest.

Workshops 30 minutes discussion in working-groups 30 minutes discussion and questions in the whole group Three groups What is your experience of different traditions of administrative law in Europe? What is good/bad in your own country? What should be transmitted to a law on good administration for the Union? Which principles ought to be transmitted from your own tradition of access to public information to a law for the Union? Does EU need a law on good administration? What are the best arguments for and against such a law? What principles should be included in such a law?