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Governance
public accountant who watches over the efficiency and effectiveness of public programmes. We see such developments at the national level as well as at the EU level. Establishing the effectiveness of policies and programmes often requires a variety of sophisticated evaluation techniques that may also vary within the sector that is being evaluated. Old-fashioned financial accounting or legal scrutiny will not suffice. Audit offices have to establish multidisciplinary teams and interdisciplinary understanding becomes more important. Some of these new roles may also create new dilemmas. Auditors may find it difficult to combine both the traditional accounting role and this new role, in which they have to apply the principle of accountability in the context of good governance.
The right to good administration has not developed in isolation. The right to good administration is also the right to good governance in a narrow sense because it is used as a norm by the different powers in the state in relation to the qualification of the administration. Several principles of good governance were already developed in regulations and in codes which are the building blocks for the development of the right to good governance. There were even more developments since the controlling institutions, such as the European Ombudsman, have also developed these principles of good governance in different ways in their assessments of the activities of the administration. In parallel, specific rights such as the right to transparency and the right to participation have been developed.
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In Part III, we described the implementation of the principles of good governance on the national, regional (EU), and international level. The description of the main implementation elements of individual countries and the comparison between countries is based on a study on good governance in the EU member states; several countries outside Europe have also been investigated. After that, the regional level was discussed— the European Union and the Council of Europe were chosen as models as far as it was comparable. The last chapter was about the implementation on the international level.
Good governance is part of the modern state not only in Europe, but also in other parts of the world, on both the national and local level. Good governance has a dual nature, comprising both a real (or factual) dimension, and an ideal (or critical) one. In the case studies, a distinction was made between three links of good governance: rule of law, democracy, and institutional. Within each of the three links we distinguished between the following three developments: the general development, the specification, and the intermediate position. For example, in relation to the rule of law dimension: in general development there is a strong focus on legality, and in specific development by the properness and the human rights principles. The intermediate position is a mix of the general and specific development. Within each development we can distinguish between a written development in the constitution, the law, or the regulations, and a development of (un)written principles by case law and/or in the literature. The twentyeight EU member states were divided into five groups of countries, in which each country separated was studied, in Northern, Western, Southern, and Central Europe, and the United Kingdom and Ireland.
Regarding the interpretations of good governance in the member states of the EU and the underlying values (suitability, integrity, and transparency), we concluded that in all EU member states the concept of good governance is used as a norm for the
activities of the administration, by the administration. It is mostly not applied as a norm for the other powers of the state: the legislator or the judiciary. Nevertheless, the two other powers are increasingly using and developing these norms for the administration. For that reason, we can speak about good governance here, but in a strict sense because it is only about good administration and not about good legislation or good judiciary. In countries where corruption is an issue (which in a strict sense is a violation of the prohibition on misuse of power), a link is also made with the principle of integrity. In the Netherlands, the violation of integrity has a broader application than only for corruption situations, and we found links with the principles of good governance. We distinguished ten forms of violation of the integrity principle, which are directly related to the principles of properness, human rights, transparency, and accountability. The application of the principles of good governance was based on the concept of good governance by way of its principles and in which the three dimensions—rule of law, democracy, and institutional—are known and applied.
For the rule of law link, in the Northern Europe countries there is a strong focus on the principles of properness and human rights (two of the three countries; one country was intermediate). In the Western Europe group, three countries focused on properness and human rights principles, while three were intermediate. In the Southern Europe group, the focus was more on the general line of the rule of law for three counties, while three other countries were intermediate. For the Central Europe group, there was a mix in which five countries were intermediate, four countries more focused on the general rule of law line, and two countries more on the specification of properness and human rights. The fifth group (the United Kingdom and Ireland) had both countries in the intermediate bracket.
In relation to the democracy link, in the Northern Europe group of countries we found that two of the three countries had specified transparency and participation, while one country was intermediate. For the Western Europe group, most of the countries (four) were intermediate and one country was more focused on the general development of democracy, while another country was focused on the specification of transparency and participation. For the Southern Europe group, four of them were intermediate and two countries had a specification of transparency and participation. In the Central Europe group, four countries were intermediate, two focused on the general aspects of democracy and three on the specification of transparency and participation. In the fifth group (the United Kingdom and Ireland), one country focuses on the general aspects of democracy, while the other is intermediate.
Regarding the institutional link, in the Northern Europe group, one is intermediate, while one focuses on effectiveness and accountability. In the Western Europe group, three countries focus on the general aspects of the institutions and one country on the principles of effectiveness and accountability, while two are intermediate. In the Southern Europe group, most of the countries (four) are intermediate and two focus on the general aspects of the institutions. For Central Europe, we found four countries to be intermediate, four countries focusing on the general aspects of the institutions and three countries on the specific aspects of effectiveness and accountability. In the fifth group (the United Kingdom and Ireland), we found that both are focusing on the specification of effectiveness and accountability.
In the five groups of countries we found differences as to the interpretation and application of good governance because of the different functions of government (policy development, implementation, supervision). We also see that general aspects are often worked out in the constitution and general laws and regulations; this means there is an important role for the policy development and implementation components of the
government. The specification of the dimensions by the development of principles is mostly initiated by the supervisory and controlling bodies of the government. After some time, we usually found codification of the specified principles in the general laws. It is interesting to see that there are some differences in relation to each of the three dimensions. We found, more often than not, specification of the human rights, transparency, and participation principles; the specification of the properness subprinciples is lagging a little behind. The specification of the accountability and effectiveness principles is behind the properness principles.
It is also relevant to see how the conflicting values were balanced. It concerns choices within member states, but sometimes it also has to do with cooperating countries weighting these values differently. Sometimes, the legislator has already prevented the conflict in two ways: first by codifying one principle and not the other, or by giving priority to one principle over the other principles; the executive power also achieves that by making political priorities related to principles. So, the question is: how should apparent conflicts of principles be dealt with? If there is no legal hierarchy, other factors are decisive in balancing the principles.
Then followed some conclusions about countries outside the European Union: Australia, Canada, and South Africa. The general line is that the principles of good governance have not yet been developed as written principles, which has the consequence that there is no deep and substantial discussion about the contents of each of the six principles of good governance which have been distinguished in this book. There is a second more general observation from which we can see that the concept of good governance has been accepted in the three countries and that is important because that is the motor for the further development of each of the six principles of good governance. Most explicit is the Constitution of Canada where the concept of good government has been codified, but this formulation is strongly focused on the internal institutional dimension of the government and not so explicit about the external activities of the governmental institutions. In all the three countries, the focus is strongly on the rule of law principles like the principle of human rights and the principle of properness respectively the principle of natural justice. Gradually, there is more attention paid to the principles of transparency and participation. The newer institutional related principles of accountability and effectiveness receive no attention from lawyers; however, there is a strong focus on these principles in the social sciences.
Then, some remarks about the regional EU implementation of the principles followed. Attention was paid to the EU administration, the EU Commission, and the EU controlling institutions (the Court of Justice and the Ombudsman). The first instrument was the 2001 White Paper in which the Commission developed five important principles of good governance: openness, participation, accountability, effectiveness, and coherence. These five principles of good administration were implemented by the Commission. The White Paper was followed by the 2004 binding Code of Good Administrative Behaviour for Staff of the European Commission. This was a normative framework with principles of good administration which should be enforced in relation to activities of staff members of the Commission. For the EU Court of Justice, the most important framework on the principles of good governance are the treaties: the Lisbon Treaty and the Charter on Fundamental Rights. In addition to the further evolution of the general principles common to all European administrative law systems, other principles are also mentioned and further developed. One example is the right of every person to have his or her affairs handled within a reasonable time by a European institution as part of the right to sound administration. Another is the need to act within a reasonable time in conducting administrative proceedings relating to
competition policy as a general principle of EU law whose infringement would justify the annulment of the respective decision insofar as it also constituted an infringement of the rights of defence and makes the link with the civil liability issue. Later, the Court developed the broader jurisprudence on transparency and on the right of access to documents. When it comes to article 41 of the Charter, the jurisprudence on the right of good administration is relevant. Nevertheless, it seems that the Court is working on it a step-by-step and on a subprinciple level—and only partly on new principles like effectiveness.
The European Ombudsman has developed a code of good administrative behaviour. This code consisted of three parts, each part containing principles of a different character. The first part contains the general articles relating to institutions and their officials. The second part is about the classical basic principles of administrative law, like lawfulness. In the third part, we find the articles about good administrative functioning. These articles are about replying to letters, acknowledgement of receipt, transfer to the competent service, notification (transparency), data protection, and keeping adequate records. In essence, we find in all these three parts different elements of the principles of good administration. In practice, the focus of the ombudsman is according to its recent annual report: transparency in EU decision-making, lobbying transparency, transparency in economic and financial decision-making, access to EU documents, ethical issues, EU agencies and other bodies, and finally EU contracts and grants. So, in relation to good administration, the focus is especially on transparency and ethical issues.
We see at the regional, EU level a strong development by means of the Fundamental Rights Charter, in which we find a fundamental right of good administration. Also, the Court of Justice of the European Union is strongly developing the principles of EU law, of which the principles of good administration are a part. In the literature—the RENEUAL report—there is a strong emphasis on the development of a European administrative act. The EU executive level is fragmented: the European Parliament is strongly focused on a more integrative approach of the principles of good governance.
At present, the implementation of good governance has a much broader meaning than it did twenty years ago. The concept is clearly in development and transition. Elements such as propriety, transparency, participation, accountability, and human rights have been added to the concept. All these elements have been incorporated into several documents as time went on. Within the framework of the Council of Europe, the third line shows that the ECtHR develops its own interpretation of the principle of good governance in the review of government action. That interpretation is twofold and makes demands on the speed at which an incorrect decision has to be corrected and may require the administration to provide adequate compensation. Another suitable form of recovery with the dual interpretation of the principle of good governance has been highlighted in this judicial review.
We see that the principles of international law have been applied by the WTO Dispute Settlement Body in the interpretation of the WTO agreements and the customary international law. The interpretation is still not limited to what is expressed in the Vienna Convention, as different principles of international law (like the principle of effectiveness and the principle of legitimate expectation) are employed, and they are also principles of good governance. We found that there are not only new principles of good governance, but there are also innovations of existing principles of international law because of the influence of the concept of good governance.
When comparing the courts in their use of good governance, despite the differences in terminology there is a common idea of good governance. The International Court
of Justice incidentally uses the term in the context of good administration, but for example the European Court of Human Rights employs the terminology ‘principle of good governance’. The Inter-American Court of Human Rights is referring to different elements of the international human rights treaties which can be qualified as principles of good governance. The WTO Dispute Settlement Body is referring to the principles of effectiveness and legitimate expectations which are both good governance principles. We concluded that the principle of good governance can be found in a more horizontal way in a large number of policy fields of international law.
At the grassroots of international law, good governance has been accepted as a principle of law. From there on it made its way into national legal systems, and from there into regional institutions. It is important to mention that the concept is not related to a few policy fields only, but is neither implemented in all policy fields. Sometimes this concept is worked out in a general regulation, but mostly only some aspects of good governance are worked out in the law, while others are developed in practice by the administration and the court. So, it functions as a norm for the administration and the court uses some of these principles in its review. The concept is applied as such in different policy fields. The international level has accepted and specified the concept of good governance in different treaties related to the economic and environmental issues. And courts and dispute settlement institutions have applied the principles of good governance. From the narrow approach of principles of international law four conditions are made related to the general principles of international law: (a) general; (b) principle which is a norm, but neither a rule nor a general practice accepted as law; (c) chronologically already recognized; (d) by civilized nations. In describing the conditions for principles of international law we can conclude that the principles of good governance are principles of international law.
