3. Good Governance and the Europeanization of National Law

Finally, research on the same topic has been conducted, mainly concerned with the concretization of principles of good administrative behaviour by the ECJ.56 There is a study based on the subdivision of six principles of good governance, referred to earlier.57 The study shows that principles of responsible administration were initially applied in the context of political responsibility, although these are not given substance just through legal rules, but also through courts of audit.58 The principles of participatory administration have been given a mainly formal, procedural content by both the courts and the European Ombudsman. The principles of transparent administration relate in particular to the accessibility of documents and the public nature of decisionmaking. The Court has acknowledged the principle of transparent administration as well. The Ombudsman links human rights principles relating to the administration with bad administration, whereas the Court considered these human rights principles by themselves. The principles of proper administration are afforded wider application by both bodies, although the Court is more the frontrunner and the Ombudsman the runner-up.

Is any legal tradition recognizable in this development? Not even one. The European Union has generated its own particular blend of traditions. Although the administrative system of the European Union was initially modelled on the French system, subsequent developments have led to a growing emphasis on individual rights in administrative procedures. 59

As seen above, many actors have been involved in the development of principles of good administrative behaviour, all in their own way. These actors include the European Court of Human Rights, the Court of Justice and the Court of First Instance, the European Ombudsman, and some of the member states of the European Union. As the European Convention on Human Rights and its protocols become increasingly significant for the European Union, they may influence the further development of these principles, and even the principles of good governance in general.

3. Good Governance and the Europeanization of National Law

The developments of principles of good administration in the sphere of the European Union are not solely confined to European institutions.60 Gradually, these developments influence the administrative law of the member states. Indeed, we are witnessing an ongoing process of Europeanization and this is not a recent development. While it is not completely new, the literature nowadays clearly recognizes that European law and administrative law are converging. That is not only in the relationship between European law and national administrative law but also in the interaction between international law and national administrative law.61 Moreover, a stronger foundation is needed as the influence reaches beyond the traditional notion of sovereignty, especially as far as territoriality is concerned.62

56 Oldenziel 2003. 57 Participation, transparency, effectiveness, accountability, proportionality, and human rights, see Addink 2005. 58 Oldenziel 2003, ch 10, Conclusions. 59 For a discussion on countervailing tendencies, see Harlow 1988, 10. 60 Prechal and Widdershoven 2017. 61 Schmidt-Assmann 2008, 2061–79. 62 Ibid, 2061.

(a) Two dimensions of the Europeanization of administrative law Two dimensions are important in the Europeanization of administrative law: the instruments for the administration to act and the norms for administrative action. These dimensions are important for both the national and European levels, and also in multilevel analyses. Questions of effectiveness and accountability are also relevant in this discussion as the coherence between the national and the European level is challenged. Therefore, the development of administrative and European administrative law requires a congruent approach. Two aspects are especially important: administrative law in original national relations and the role of national administrative law in purely European relations.

(b) The challenge of designing a law on good administration for the European Union There are several arguments in favour of adopting a law on good administration for European Union institutions.63

First, the current rules of EC administrative procedure have been described as a ‘patchwork codification tailored to the specific requirements of sectorial policy implementation. They are barely coordinated with one another, suffer from serious gaps—in particular as regards individual protection.’64 A standardization of otherwise scattered rules would lead to a simplification and rationalization of the administrative processes of the EU.

Second, today we see the European Union developing mainly under stimulus from the European Court of Justice and the European Court of First Instance. According to some, this is a natural and sound development. Others would consider this development more legitimate when the European legislator himself would be leading.

Third, as a consequence of the extension of the Union some practical reasons may hinder this run of things in the future. When the Court consists of a limited number of judges, it would not be unreasonably difficult to identify common legal principles. However, the Union already counted twenty-eight members in 2013, where each member delivers one judge trained in his parent legal tradition. It will become increasingly difficult to find common legal principles underlying the European administrative legal framework.

Finally, codified rules are clearer and more accessible to the average citizen than principles which are developed in case law. An administrative procedure act would not only enumerate and articulate existing principles of the Union, it would also set out clearly the principles which are relevant in the relation between the multilevel administration and the citizens.

However, while it is important to achieve sufficient protection of individual rights, it is equally important to promote efficiency and dynamism as well as to avoid—as we called it earlier—ossification by over-regulation. Too many rules incite civil servants to work out techniques for evasion or to shift their focus to compliance rather than the quality of results. This can lead to unduly cautious behaviour aimed at minimizing legal errors, thus blocking experiments and innovations.65

63 Craig 2013; Hofmann and others 2014; Timmermans 2014; van Ommeren and Wolswinkel 2014; Addink 2014. 64 Nehl 1999, 188. 65 Harlow 1996, 11.