4. Good Governance on the European Union Level

The European Ombudsman has stressed his role in ensuring ‘good administrative practices’, while reiterating the importance of avoiding negative consequences of juridification by using a considerably open definition of maladministration. ‘The open character of the term is justly one of the elements which distinguish the role of ombudsman from that of the court.’66

The crux lies in the right balance between the citizen’s legitimate rights and the public interest in the form of the administration’s need for efficient procedures. A too strong emphasis on individual rights might lead to undue juridification of administrative procedures. Since specialized administrative economic law constitutes a large part of the Union’s administrative law, it might even provoke the development of a strong litigation culture,67 although the danger should not be overestimated. Many individual rights are already part of the acquis communautaire and at least some codes of good administrative behaviour are already adopted by the European institutions as well as published in their official journal.

These improvements might yield proper procedures, high quality decisions, and stimulate the level of rational reflection. When such a law on good governance is made subsidiary to the standing legal framework, it would not impede more detailed horizontal or vertical legislation.

The right to good administration and its legal basis in the Treaty of the European Union seems to have the potential to mature the particular blend of administrative law traditions characteristic of the European Union. Future designers of a law on good administration thus need to know of the different traditions of the member states in order to make it fit the multilevel character of administrative law. Subsequently, they need to continue complementing the original administration-centred tradition with an appropriate blend of the individual-centred, legislator-centred and ombudsmancentred tradition, in order to properly balance the rights of the individual and the European public interest.

4. Good Governance on the European Union Level

In Chapter 2, the Commission’s White Paper on European Governances has been extensively addressed.68 However, this White Paper was not the start of the discussion on good governance in the European Union because sundry publications and decisions on good governance had already been published several years before.69

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 and Development:70

The Council stresses the importance of good governance. While sovereign states have the freedom to institute their own administrative structures and establish their own constitutional arrangements, equitable development can only effectively and sustainably be achieved if a number of general principles of government are adhered to: sensible economic and social policies, democratic decision-making, adequate governmental transparency and financial accountability,

66 Annual Report of the European Ombudsman for 1995, Luxembourg, 17. 67 For a discussion of the litigation problem see eg Kańska 2004, 320–1. 68 European Commission, White Paper on European Governance, July 2001, COM (2001) 428. 69 Chiti 1995, 241–58; Schwarze 1995, 227–39. 70 Resolution of the European Council of Ministers on 28 November 1991, in: Van Banning and Genugten 1999, 97 and 196–8.

creation of a market-friendly environment for development, measures to combat corruption, as well as respect for the Rule of Law, human rights and freedom of the press and expression.

In 1996, the book titled Principes Généraux du droit en droit communautaire. Origines et concrétisation was published. The book outlined general principles of law within European Union law and elaborated on different groups: explicit principles, implicit principles, and silent principles.71 As to these silent principles, attention was paid in a special chapter to ‘Le principe de la bonne administration’.72 This chapter discussed some decisions of the Court of Justice in which this principle was mentioned. The conclusion was—and this is very crucial for the further development of ideas on the principles of good governance—that the principles of good administration could be used even in situations where written rules are absent. Advocate General Van Gerven wrote in his conclusion to one of the cases:73

En principe, nous partageons le point de vue de la Commission. En effet, l’absence de garanties écrites n’empêche pas la Commission d’être liée, dans ses interventions, par les principes généraux du droit communautaire, qui comprennent le respect des droits de la défense (et en particulier le principe du contradictoire) et le respect du principe de bonne administration. La Cour n’a d’ailleurs jamais hésité à imposer à la Commission de respecter ces principes, même en l’absence d’un texte écrit. ( ... )

Bien que l’absence de garanties procédurales écrites ne fasse donc normalement pas obstacle au pouvoir de la Commission, nous souhaitons néanmoins souligner que, en raison de l’effet juridique, en principe immédiat, des mesures que la Commission peut prendre lorsqu’elle constate une violation d’une disposition du traité, ces mesures demeurant en tout état de cause susceptibles de recours, elle doit exercer sa compétence en s’appliquant tout spécialement à respecter les droits de la défense et le principe de bonne administration, en tout cas lorsque (comme c’est le cas en l’espèce) sa décision a également pour effet de modifier directement et individuellement la situation juridique d’entreprises (publiques). [In principle, we share the point of view of the Commission. Indeed, the absence of written guarantees does not prevent the Commission to be bound in its interventions, by the General principles of Union law, which include the respect for the rights of defence (and in particular the principle of audi alteram partem) and respect for the principle of good administration. The Court has also never hesitated to impose on the Commission to respect these principles, even in the absence of a written text. ( ... )

Acknowledging that the absence of written procedural guarantees will therefore normally be no obstacle to the power of the Commission, we wish nevertheless to emphasize that, because of the judicial effect, in principle immediately, the measures that the Commission can take when it finds a violation of a provision of the Treaty remain in any case open to review. The Commission must exercise its jurisdiction in attempting to especially respect the rights of defence and the principle of good administration, in any case when (as is the case here) its decision also has the effect of altering the legal situation of (public) companies directly and individually.]

From 1998, several judgments of the European Court of Justice were published in which the Court used ‘principles of good administration’.74 In 1997, the European Ombudsman provided a definition of maladministration in his annual report. In

71 Papadopoulou 1996. 72 Ibid, ch IV, 127–32. 73 ECJ 12 February 1992, C-48/90 and C-66/90, Netherlands and others v Commission, 1992, ECR I-00565, conclusion by A-G W Van Gerven. 74 ECJ 19 November 1998, C-252/96, Parliament v Gutierrez de Quijano y Llorens, ECR I-07421; ECJ 4 March 1999, C-119/97, UFEX and others v Commission ECR I-01341; ECJ 9 September 1999, Case T-127/98, UPS Europe v Commission, ECR II-02633; these terms were recently used by the ECJ in ECJ 13 February 2003, Case T-333/01, Meyer v Commission, ECR 2003 II-00117; the Court sometimes refers to ‘maladministration’, see ECJ 10 July 2003 C-472/00, Commission v Fresh Marine Company, ECR 2003 I-07541.

1999, he recommended a draft Code of Good Administrative Behaviour, and in the period between 6 September 2001 and 3 May 2002, in its twenty-five reports, the European Ombudsman used the terms ‘principles of good administration’ or ‘good administrative behaviour’.75

In August 1999, a conference on ‘General Principles of European Community Law’ was held in Malmö. The fundamental purpose of the conference was to analyse the general principles, their scope in the EU legal order, and their impact at the national level—a rather top-down European law approach. Reports on general aspects, human rights, institutional principles, and some individual principles and legal systems were later published in the book General Principles of European Community Law. 76 During the conference, attention was paid to ‘Securing the Principle of Good Administration within the Union Institutions’.77 One of the conclusions of the conference was—with a view to the future—that the role of comparative law in the process of developing general principles should not be underestimated.78 This should be the case not only in external relations between the European level and the national level, but also between the European institutions.79

It is interesting that the Commission has developed five principles of good governance in the White Paper: openness, participation, accountability, effectiveness, and coherence. In an earlier White Paper on Administrative Reform, some key principles of a European public administration were stressed: service, independence, responsibility, accountability, efficiency, and transparency.80 These elements were elaborated rather briefly81 in the Commission’s Code of Good Administrative Behaviour.82 So, not only the European Judiciary and the European Ombudsman, but also the European Administration (ie the European Commission and the European Council),83 use the principles of good governance. The European Commission stated, quite restrictively, that the application of these principles reinforces the principles of proportionality and subsidiarity. In my opinion there is a broader legal effect—as illustrated here—than the reinforcement of these two principles alone.

There is criticism of this statement in the literature because the notion of good governance had not been defined.84 However, good governance could be seen, as Curtin

75 Fennel 2003, 5.41. 76 Bernitz and Nergelius 2000. 77 Ragnemalm 2000, § 2.1.3 ‘Securing the Principle of Good Administration within the Community Institutions’, 54–7. 78 Nergelius 2000, 223–32; Koopmans 2000, 25–34. 79 See the overview of the case law of the European Ombudsman in comparison with the European Code of Good Administrative Behaviour: Fennel 2003, 5.31–5.87. For comparison see Principles of Good Governance in case law of the European Court of Justice/Court of First Instance and European Ombudsman: Oldenziel 2003. 80 European Commission, White Paper on Administrative Reform, March 2000, COM 2000 (200). 81 See the critical remark by the European Ombudsman in his speech at the International Seminar entitled The Ombudsmen and the European Union Law, Bucharest, April 2001. 82 European Commission, Code of Good Administrative Behaviour. Relations with the Public, 13 September 2000. This code contains norms in relation to General Principles of Good Administration (lawfulness, non-discrimination and equal treatment, proportionality, and consistency), Guidelines for Good Administrative Behaviour (objectivity and impartiality, information on administrative procedures), Information on the rights of interested parties (listening to all parties with a direct interest, duty to justify decisions, duty to state arrangements for appeals), Dealing with enquiries (requests for documents, correspondence, telephone communication, electronic mail, requests from the media), Protection of personal data and confidential information, and Complaints procedures (European Commission and European Ombudsman). 83 Decision of the Secretary-General of the Council on a Code of Good Administrative Behaviour, 25 June 2001 (2001/C189/01). 84 LSE Study Group on European Administrative Law, Taking Governance Seriously, § 1, March 2002.

and Dekker argue in their contribution to this publication, as a Dworkian ‘interpretative’ legal concept, structuring different conceptions around a common fundamental value.85 In the second part of this book, we elaborate on the legal principles connected with good governance, expressing different conceptions of the principles of good governance.

In September 2001, the European Parliament adopted a resolution containing the ‘Code of Good Administrative Behaviour’ which European Union institutions and bodies—their administrations and their officials—should respect in their relations with the public. This Code is mainly based on the work of the European Ombudsman concerning maladministration.86 To reiterate, maladministration occurs when a public body fails to act in accordance with a rule or principle that is binding upon it.87 The Code specifies principles such as the absence of discrimination (article 5), proportionality (article 6), the absence of abuse of power (article 7), impartiality and independence (article 8), objectivity (article 9), legitimate expectations, consistency and advice (article 10), fairness (article 11), courtesy (article 12), the right to be heard and to make statements (article 16), a reasonable time limit for taking decisions (article 17), and the duty to state grounds for decisions (article 18). Compared to the Commission’s Code of Good Administrative Behaviour, this Ombudsman’s Code is clearer and more detailed.

The Ombudsman’s Code contains, in essence, the classical basic substantive and procedural principles of administrative law, such as the rights of the defence, grounds for decisions, non-discrimination, impartiality, possibility of appeal, as well as some rules of good administrative functioning. Both types of norms are, because of their legal status, part and parcel of the principles of good governance.

The Code develops the fundamental rights of citizenship—including the citizens’ relationship to the administration—which can also be found in the Charter of Fundamental Rights of the European Union proclaimed at the Nice Summit in December 2000.88 The particularities of this Charter have already been described but, in general, where European law is concerned, a citizen’s right to good governance exists.89 Moreover, this Charter has inspired some of the EU’s institutions and bodies to develop and adhere to these norms. This is the case for the European Parliament and the European Commission, which have both published communiqués in which they indicate that they respect the Charter in their activities. Finally, the Court of Justice and the European Ombudsman have referred to the Charter, and the Advocates-General at the Court invoke the Charter in their opinions. Eventually, good governance has been inserted in the European Union’s treaty. Now, administrative regulation should follow, providing clarity and coherence.

85 Curtin and Dekker 2005. 86 The Annual Report of the European Ombudsman for 1995, Luxembourg, 1996, provided a non-exhaustive list of examples of maladministration; in November 1998 the Ombudsman, on his own initiative, launched an inquiry so that all Community institutions and bodies could adopt a Code of Good Administrative Behaviour. 87 Definition in the Annual Report of the European Ombudsman for 1997, Luxembourg 1998. 88 In the Treaty of Amsterdam in 1997 (article 6.2 of the Treaty on European Union) the EU undertook to respect the fundamental rights as guaranteed by the ECHR as general principles of Community Law. 89 Millet 2002, 309–22.

(a) ReNEUAL Model Rules on EU administrative procedure The project on ReNEUAL Model Rules on EU administrative procedure90 undertaken by the Research Network on EU Administrative Law (ReNEUAL) aims to determine how constitutional values of the Union can be best translated into rules on administrative procedure covering non-legislative implementation of EU law and policies. Welldesigned rules for implementation of EU law and policies could improve the quality of the EU’s legal system. The ReNEUAL Model Rules are organized into six ‘books’. EU law applies a mixture of tools in specific and evolving contexts of implementation of EU law and policies. Each of these tools—single case decisions, non-legislative acts of general application, agreements, and contracts—has its own specific requirements for ensuring procedural justice.

(b) Constitutional principles of ReNEUAL Model Rules on EU administrative procedure Constitutional principles constitute decisive normative standards for the design of administrative procedures in the EU. The existence or non-existence of administrative procedural rules in the EU is not merely a ‘technical’ question, free of constitutional value choices. The realization of constitutional principles has a considerable potential impact on substantive outcomes. Those values and principles include the protection of the rule of law and its emanations in subprinciples such as legality, legal certainty, proportionality of public action, and the protection of legitimate expectations. Those values and principles further include the concepts of a democratic Union on the basis of a transparent system requiring not only the definition and protection of rights of participation and access to information but also, under article 9 TEU, equality of citizens in their access to Union administration. Prominently, articles 1(2) and 10(3) TEU require that, in the Union, in line with the principles of openness and of subsidiarity, ‘decisions shall be taken as openly and closely as possible to the citizen’. Other individual rights and obligations underpinning the design of procedures arise from the principle of good administration as partially restated in article 41 CFR. Good administration requires that decisions be taken pursuant to procedures which guarantee fairness, impartiality, and timeliness. Good administration includes the right to be given reasons—a requirement also in the Introduction/Book I—General Provisions protected by the right to an effective remedy restated by article 47 CFR—and the possibility of claiming damages against public authorities who have caused harm in the exercise of their functions. Good administration also requires the protection of the rights of defence, language rights, and, more generally, protection of the notion of due process. In addition, good administration extends to information rights which include privacy and business secrets as well as access to information.

The preamble of the Model Rules illustrates the background and aims of the Model Rules.

Public authorities are bound in administrative procedures by the rule of law, the right to good administration and other related principles of EU administrative law. In the interpretation and development of these model rules, regard should be had especially to equal treatment and nondiscrimination, legal certainty, fairness, objectivity and impartiality, participation, proportionality, protection of legitimate expectations, transparency, and due access to effective remedies.

90 ReNEUAL Model Rules on EU Administrative Procedure, Paul Craig, Herwig Hofmann, JensPeter Schneider, Jacques Ziller, Oxford 2017; Ellerbrok 2016; Ruffert 2016.