32
Good Governance on Multiple Levels
these principles; it is for historical reasons that these principles have been codified and developed in separate systems of Dutch legislation. These principles can be enforced within the process of judicial review. Not only the judiciary, but other independent institutions like the Court of Audit or the Ombudsman, can use these principles. The control can be carried out by parliament within the political process. However, there are other legal aspects of the principles of good governance which have to be discussed: which administrative authorities have to apply these principles; to which administrative activities must these principles be applied; what is the binding effect of these principles when they have been applied; how can these principles be enforced? In the context of principles of good governance, the most important question is: what is the legally binding character of the principles? It should be kept in mind that these questions concern the Netherlands. Specific principles of good governance are elaborated upon in Part II of this book, which concerns the substance of each principle. These chapters do not focus on a particular country. The following section deals with good governance on a national level in Europe. Do various national systems converge or diverge? Are there some common denominators?
2. Good Governance on the National Level in Europe Koopmans starts his famous article about the interaction between the legal principles on a national and on a European level by saying: General principles of law are, in a certain sense, commuters. Frequently, they travel from national legal systems to European Union law, as principles common to the legal systems of the Member States. Subsequently, after having been baptized as general principles of Union law, they travel back to national systems as part of the influence of Union law on national law. On their way back, however they are not always recognized as having originated in the national legal system, they have, metaphorically speaking a new attire.28
Koopmans explains the different ways general principles of law are handled in the national legal systems. The same is surely true for some aspects of the principles of good governance. In 2005, the Swedish government commissioned the Swedish Agency for Public Management to conduct a survey on current regulation on Good Administration in the Member States of the European Union.29 The Swedish government declared that it intended to work on a law on good administration for the institutions, bodies, offices, and agencies of the European Union. Such a law would be based on Article III-398 in the original Treaty Establishing a Constitution for Europe, which was comparable to article 298 TFEU. The article was originally proposed by the Swedish government’s representative to the Convention on the Future of Europe and the intention was to facilitate a legal basis in the treaty which would allow European legislation on good administration. This report mirrors the development of the principles of good administration in different European countries. The Swedish report also explains the origin of the right to good administration, which can be traced back to a number of resolutions of the Council of Europe as well as to some case law of the European Court of Justice. Koopmans 2000, 25–34. Principles of Good Administration in the Member States of the European Union, Swedish Agency for Public Management, 2005. 28 29
