6. Cases about the Implementation of Good Governance Principles

The next step was to find out, based on the country reports and the remarks from the national specialists—the ombudsman coordinators in each country—what the position of the country is. This positioning was done based on the information we received in the frame of this research and it is a theoretical position which may be subject to discussion. The idea of presenting the results in this way makes it possible to have a discussion within and between the member states on the developments and the shifts of the principles of good governance.

The theoretical positioning of countries is repeated for each of the five groups of countries. That was done because we saw within these groups of countries some level of cultural and social coherence and, based on that idea, we think that such a comparison will stimulate the same discussion in and between countries. The discussion in practice will be centred around the following points: the institutions which apply good governance norms in relation to their functions, the developments of the concept by specification of principles of good governance, the form and binding effect of the specified principles (including the integrity principle), and the prevention of malgovernance (including corruption) by promoting good governance.

In the coverall graphics we distinguish five phases of development of good governance: no concept, concept, concept principles, principles, and full principles. These five phases, shown in Figure 13.3 have been applied to the three dimensions of good governance: rule of law, democracy, and institutional structure.

Figure 13.3 Five phases of good governance

6. Cases about the Implementation of Good Governance Principles

In the study, we paid attention to cases in different policy fields in the twenty-eight EU member states: public health, the economy, the environment, and education. This section offers an example from each of these policy fields.

An example of good governance and public health policy is found in Austria. The aim of the Austrian Federal Ministry of Health is to create a high level of transparency and solve issues concerning health insurance.5 The SGI Network—an institution that reports and advises countries internationally on their good governance status in the core policies of the state6 —has drawn up a report on the good governance status in Austria and concluded that Austrian health policies are some of the best in the world. The Network noted, however, that the healthcare system creates major inequalities for the population who cannot afford additional private health insurance. Another

5 <http://www.bmg.gv.at/cms/home/thema.html?channel=CH1013>. 6 <http://www.sgi-network.org>.

problem found is the division of responsibilities between the Federation (regulation on public health care insurance) and the (decentralized) Länder governments (funding hospitals), which created a disadvantage for both public and private hospitals.7 This complexity causes higher expenditures, for both the state and the population, while the efficiency and effectiveness of the cooperation between the Federation and Länder decreases. The principles of effectiveness and accountability are thus significantly disadvantaged by this conflict.

The next case is about a court decision on good governance and education policy in Belgium.8 Since France put in place numerous clauses for medical students, Belgium had to face an increasing number of students coming to the French part of Belgium to study. The parliament of the French community in Belgium adopted, in 2006, a decree limiting the number of foreign students allowed to stay and study in Belgium, making a distinction between inhabitants and non-inhabitants. French students petitioned the Constitutional court to cancel this decree, and the Constitutional court referred a preliminary question about the interpretation of some provisions to the European Court of Justice—relating to the easy access to education and prohibiting discrimination—of international treaties. The community argues that their students are a burden for the public finances. This is the point of the case law, and substantively the answer of the Court: different treatment can be justified in the light of the goal set for it. So long as discrimination can be justified, it is not an illegality. This establishes the principle of proportionality: human rights are not absolute; they have to be balanced against other considerations. Thus, the European Court of Justice (Grand Chamber) held that the provisions of the EU law conflict with the 2006 decree, unless the Constitutional court considers it as proportionate in relation to the goal of protecting public health.

The third case is about good governance and environmental policy in the Deep Geological Repository case.9 The Czech Radioactive Waste Repository Authority (RAWRA) has been trying to find sites for high level nuclear waste for some years now, but has failed due to very strong resistance from the people in the villages chosen as possible sites. Upon the finding of a suitable site which is deemed safe for storing waste and spent fuel by geological assessment, the acceptance for the solution by the public (the affected villages) will be tested. Local level ‘yes or no’ referenda (a sub-principle of the good governance principle of participation) took place. All of the villages were heavily against hosting the Deep Geological Repository. This public participation prevents a misuse of power and allows the decision to be made by the communities. The group running the project, SURAO, will incentivize participation by financial contributions. There is also community level participation through the use of ‘working groups’, consisting of two representatives of the possible site, one representative of an environmental NGO, and two representatives with nationwide activities. These working groups are meant to strengthen transparency of the processes used to search for a site and take into account the interests of the public, which also helps to uphold human rights. These working groups also fulfil legal requirements: general principles for public participation based on the international Aarhus Convention on Access to Information, and rules for providing information on the state of the environment and

7 <http://www.sgi-network.org/2014/Austria/Social_Policies>. 8 CJEU (Grand Chamber) case C-73/08 13 April 2010, Bressol, Chaverot and Others/Cour constitutionnelle (Belgium). 9 Nuclear Risk and Public Control, ‘Questions of call to nuclear regulation SUJB Aarhus in the Nuclear Field in the Czech Republic’, accessed online: <http://www.joint-project.org/experience_ aarhus_cz.htm>.