4. Good Governance and the Main Developments

It is clear that a number of the different ‘operative’ components placed under the umbrella of the ‘right to good administration’ by the second paragraph of Article 41 also reflect specific general principles of EU law. Of particular importance in this regard is the general principles of respect for the rights of the defence, including the right to be heard, or the duty to state reasons. 88. It is equally clear that the principle of the protection of the rights of the defence, which is pertinent to the circumstances of the present case, is applicable to Member States when they are acting within the scope of EU law, if national authorities are contemplating the adoption of a measure which will adversely affect the person in question. 89. On the other hand, it is doubtful whether such general principles, such as the rights of the defence in the present case, have exactly the same content as Article 41 of the Charter. For one thing, the explicit limitation in the wording of Article 41 of the Charter impedes, as Advocate General Kokott puts it, its content from simply being ‘transposed without more ado to bodies of the Member States, even when they are implementing [EU] law’. On a more conceptual level, doing so would come dangerously close to the circumvention of the explicit provision of Article 41 of the Charter. 90. In the light of this important remark, each of the components of Article 41 has to be carefully and independently considered. This is particularly the case for the right of access to the file, which found its way into the wording of Article 41 as a result of a jurisprudential evolution that itself had its origins in the assessment of the practice of EU institutions in the specific field of competition law. 91. In short, the applicable general principle is the respect for the rights of the defence. Its content with regard to the Member States’ application of EU law may differ from the (specific and autonomous) guarantees provided for in Article 41 of the Charter, which are applicable to the direct administration of the EU.

4. Good Governance and the Main Developments

The history of good governance as a phenomenon can be divided roughly into four phases. In the first phase, the focus is on the national level. In the second phase, we see activities of international organizations in relation to the development of the concept of good governance. On the European level this can be distinguished between the contribution of the Council of Europe (the third phase) and the contribution of the European Union (the fourth phase).

In the Netherlands, the first phase started in the 1930s with the development of unwritten principles of law by the judiciary. These principles were focused on the work of the administration and principles of proper administration. That was and still is a rather narrow approach of good governance, especially since to date this concept has been approached from a more formal perspective. Initially, these principles of proper administration were developed for more extreme situations and unacceptable acts by the administration. In following years, these principles were elaborated. In the 1990s, we can find in some countries a process of codification of these norms in general administrative acts. In other countries, for example France, the judiciary developed these principles in the first phase. In countries like Germany,23 the very general principles have been written down in the constitution.

The international and European developments start at the end of the twentieth century. In the beginning of the 1990s, international organizations in the field of development aid and finance started to develop good governance norms to make sure that financial assistance is properly directed. The IMF, the World Bank, the WTO, the

23 Schröder 2007.

UNDP, and the OECD were quite active in these fields. Not all international organizations have started with the same topics; global financial organizations have been more focused on macro-economic reform whereas political organizations sought a connection with human rights and the rule of law. It seems like there is now a growing consensus on the specification of good governance norms. Even the international organizations themselves have been reformed because of the need to abide by standards of good governance.

In relation to the developments in Europe, we have to make a distinction between the system of the European Union and the system of the Council of Europe. There are remarkable differences in the field of competences, objectives, and the structure of these organizations.

The Council of Europe was founded after the Second World War to ensure peace in Europe. Originally, it started with ten members and now that number has increased to forty-seven. Its basic aim is to achieve a greater unity between the member states, especially by promoting human rights, parliamentary democracy, and the rule of law. The European Court of Human Rights, the Commissioner for Human Rights, and the European Commission for Democracy through Law (Venice Commission) play important roles independent from but in connection with the Council of Europe. The Council makes recommendations that are not legally binding but in effect are often followed by the member states. In 1996 and in 2018 updated, the Council developed the Handbook ‘Administration and You’, which gives an overview of basic principles as formally respected in the member states. In 2007, they published the recommendation on Good Administration and a Code in which these principles were codified. The Council of Europe stated:

Recommends that the governments of member states: • promote good administration within the framework of the principles of the rule of law and democracy; • promote good administration through the organisation and functioning of public authorities ensuring efficiency, effectiveness and value for money. These principles require that member states: • ensure that objectives are set and performance indicators are devised in order to monitor and measure, on a regular basis, the achievement of these objectives by the administration and its public officials; • compel public authorities to regularly check, within the remit of the law, whether their services are provided at an appropriate cost and whether they shall be replaced or withdrawn; • compel the administration to seek the best means to obtain the best results; • conduct appropriate internal and external monitoring of the administration and the action of its public officials; • promote the right to good administration in the interests of all, by adopting, as appropriate, the standards set out in the model code appended to this recommendation, assuring their effective implementation by the officials of member states and doing whatever may be permissible within the constitutional and legal structure of the state to ensure that regional and local governments adopt the same standards.

The report analyses all the recommendations of the Council of Europe from the perspective of good administration to date. Finally, they have systemized the different standards of good administration in concrete articles.

The European Union (as it is now known) was founded in 1951 with the Treaty of Paris. In this treaty, a European Coals and Steel Community was established by six founding countries: Belgium, the Federal Republic of Germany, France, Italy,

Luxembourg, and the Netherlands. The aim of this treaty was to secure peace between Europe’s victorious and vanquished nations and bring them together as equals, cooperating within shared institutions. This aim should be considered in the light of post-war Europe. Some years later, in March 1957, the six countries agreed on the Treaty of Rome. In this second treaty, they decided to constitute a European Economic Community. Custom duties between the six countries were completely abolished in July 1968. Common policies, notably on trade and agriculture, were put in practice during the 1960s. In 1973, 1981, and 1986, many other European countries became members. After the worldwide economic recession in the early 1980s, a wave of ‘europessimism’ swept through Europe.

The political map of Europe was dramatically changed when the Berlin Wall fell. After the fall, the unification of Germany took place in October 1990. Democracy and the rule of law were introduced in the countries of Central and Eastern Europe as they broke away from the Soviet Union. It must be said that this development was not completely new for all countries. As the Tsarist Empire broke down, some countries (like the Baltic states) tried to build up their independent countries after the model of the Weimar Republic. The Soviet Union itself ceased to exist in December 1991. At that time, the member states were negotiating on the new Treaty of the European Union. This treaty was adopted by the European Council, which is composed of presidents and prime ministers. This landmark event took place in Maastricht in December 1991. The treaty came into force on 1 November 1993. Some areas of intergovernmental cooperation have been added to existing Community structures, which were already integrated.

By then, the EU was on course for its most spectacular ambition yet: creating one single currency, the euro, which was introduced for financial non-cash transactions in 1999. Notes and coins were issued three years later in the twelve countries of the euro area. This area is commonly known as the euro zone. The euro has become a major world currency for payments and reserves alongside the US dollar.

In the meantime, increasing globalization provided Europe with new challenges, although Europeans have profited from globalization as well. New technologies and the increasing use of the internet have transformed economies and have brought social and cultural challenges. In March 2000, the EU adopted the Lisbon strategy. By this strategy, the Union aspires to modernize the European economy and enable it to compete on the world market with other major players, such as the United States and the newly industrializing countries. The Lisbon strategy encourages innovation and business investments and adapts Europe’s education systems to meet the needs of the information society. At the same time, unemployment and the rising cost of pensions are putting pressure on national economies, making reform all the more necessary. Voters are increasingly calling on their governments to find practical solutions to these problems.

In the mid-1990s and in 2004, more countries became members of the European Union. In 2009, the Treaty of Lisbon was adopted to make the EU more democratic, more efficient, and increasingly able to address global problems such as climate change with one voice. The European Parliament was provided with more competences, the voting procedures in the Council were changed, and the possibility for a citizens’ initiative was created. As to the structure of the EU, a permanent president of the European Council and a new High Representative for Foreign Affairs would be appointed. Further, a new EU diplomatic service was established.

In 1991, the EU Council of Ministers provided a brief description of the contents and the importance of good governance in a resolution on Human Rights, Democracy