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dr. hab. Jerzy Supernat Institute of Administrative Studies University of Wrocław

Good administration in European administrative law. dr. hab. Jerzy Supernat Institute of Administrative Studies University of Wrocław. Good administration in European administrative law. Good administration in European administrative law is both:

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dr. hab. Jerzy Supernat Institute of Administrative Studies University of Wrocław

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  1. Good administration in European administrative law dr. hab. Jerzy SupernatInstitute of Administrative Studies University of Wrocław

  2. Good administration in European administrative law • Good administration in European administrative law is both: • a general principle (comprising legal and not-legal rules) and • a fundamental right (a public subjective right of fundamental nature) That is why good administration is described as: • a notion with a double status • an umbrella notion (a general principle of good administration being the umbrella principle, and a right to good administration being the umbrella right) • an indeterminate notion • an open-ended notion • a framework concept and so on. • H.C.H. Hofmann, G.C. Rowe, A. H. Turk in Administrative Law and Policy of the EU explain good administration as „a framework concept drawing together a range of rights, rules, and principles guiding administrative procedures with the aim of: • ensuring procedural justice, • public administration adherence to the rule of law, and • sound outcomes from administrative procedures”. • They justly stress that the principles of good administration have developed in close connection with: • the precept of procedural justice and • the principle of the rule of law. dr. hab. Jerzy Supernat

  3. Good administration in European administrative law • The notion of good administration can be linked • to certain other concepts including: • sound administration • proper administration • good administrative behaviour • good administrative practice(s) • good governance • good public governance • good public management • administrative efficiency • administrative effectiveness • administrative efficacy • administrative economy • (administrative) fairness • (good) administrative service • administrative culture of service • open,accountable and service-minded administration • open, efficient and independent (European) administration • open, accessible and properly run administration dr. hab. Jerzy Supernat

  4. Good administration in European administrative law The contribution of the Council of Europe dr. hab. Jerzy Supernat

  5. Good administration in European administrative law Council of Europe, Committee of Ministers Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities (adopted on 28 September 1977) The following principles apply to the protection of persons, whether physical or legal, in administrative procedures with regard to any individual measures or decisions which are taken in the exercise of public authority and which are of such nature as directly to affect their rights, liberties or interests (administrative acts). In the implementation of these principles the requirements of good and efficient administration, as well as the interests of third parties and major public interests should be duly taken into account. Where these requirements make it necessary to modify or exclude one or more of these principles, either in particular cases or in specific areas of public administration, every endeavour should nevertheless be made, in conformity with the fundamental aims of this resolution, to achieve the highest possible degree of fairness. Right to be heard 1. In respect of any administrative act of such nature as is likely to affect adversely his rights, liberties or interests, the person concerned may put forward facts and arguments and, in appropriate cases, call evidence which will be taken into account by the administrative authority. 2. In appropriate cases the person concerned is informed, in due time and in a manner appropriate to the case, of the rights stated in the preceding paragraph. Access to information At his request, the person concerned is informed, before an administrative act is taken, by appropriate means, of all available factors relevant to the taking of that act. Assistance and representation The person concerned may be assisted or represented in the administrative procedure. Statement of reasons Where an administrative act is of such nature as adversely to affect his rights, liberties or interests, the person concerned is informed of the reasons on which it is based. This is done either by stating the reasons in the act, or by communicating them, at his request, to the person concerned in writing within a reasonable time. Indication of remedies Where an administrative act which is given in written form adversely affects the rights, liberties orinterests of the person concerned, it indicates the normal remedies against it, as well as the time-limits for their utilisation. dr. hab. Jerzy Supernat

  6. Good administration in European administrative law • The Council of Europe has continued to issue principles • related to good administration. See e.g.: • Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities • Recommendation No. R (87) 16 on administrative procedures affecting a large number of persons • Recommendation No. R (2000) 10 on codes of conduct for public officials • Recommendation No. R (2007)7 on goodadministration dr. hab. Jerzy Supernat

  7. Good administration in European administrative law • Recommendation CM/Rec(2007)7of the Committee of Ministers • to member stateson good administration (adopted on 20 June 2007) • The Committee of Ministers […] Having regard to Recommendation 1615 (2003) of the Parliamentary Assembly, which calls on the Committee of Ministers to draft a model text for a basic individual right to good administration and a single, comprehensive, consolidated model code of good administration, based in particular on Committee of Ministers’ Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour (2001), in order to define the basic right to good administration, and therefore facilitate its effective implementation in practice; […] Considering that […] • cases of maladministration, whether as a result of official inaction, delays in taking action or taking action in breach of official obligations, must be subject to sanctions through appropriate procedures, which may include judicial procedures; • good administration must be ensured by the quality of legislation, which must be appropriate and consistent, clear, easily understood and accessible; • good administration implies that services must meet the basic needs of society; • good administration in many situations involves striking an appropriate balance between the rights and interests of those directly affected by state action on the one hand, and the protection of the interests of the community at large, in particular those of the weak or vulnerable, on the other, and recognising that procedures intended to protect the interests of individuals in their relations with the state should in certain circumstances protect the interests of others or the wider community; • good administration is an aspect of good governance; that it is not just concerned with legal arrangements; that it depends on the quality of organisation and management; that it must meet the requirements of effectiveness, efficiency and relevance to the needs of society; that it must maintain, uphold and safeguard public property and other public interests; that it must comply with budgetary requirements; and that it must preclude all forms of corruption; dr. hab. Jerzy Supernat

  8. Good administration in European administrative law • good administration is dependent on adequate human resources available to the public authorities and on the qualities and appropriate training of public officials; • the administration exercises its prerogative of public power to carry out the tasks required of it; that these powers might however, if used in an inappropriate or excessive manner, infringe the rights of private persons; • it is desirable to combine the various recognised rights with regard to the public authorities into a right to good administration and to clarify its content, following the example of the Charter of Fundamental Rights of the European Union (2000); • the requirements of a right to good administration may be reinforced by a general legal instrument; that these requirements stem from the fundamental principles of the rule of law, such as those of lawfulness, equality, impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy and transparency; and that they provide for procedures to protect the rights and interests of private persons, inform them and enable them to participate in the adoption of administrative decisions. 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 • […] • – 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 dr. hab. Jerzy Supernat

  9. Good administration in European administrative law CM/Rec(2007)7 Principles of good administration Art 2 – Principle of lawfulness Art 3 – Principle of equality Art 4 – Principle of impartiality (In 1999 the OECD Public Management Committee launched a survey on managing ethics in the public service in all OECD countries. Impartiality/neutrality/objectivitywas the most frequently stated core public service value in the OECD countries) Art 5 – Principle of proportionality (comment: theprinciple of proportionality is one of the most useful tools to control administrativedecisions and especially administrative discretion) Art 6 – Principle of legal certainty Art 7 – Principle of taking action within a reasonable time limit Art 8 – Principle of participation Art 9 – Principle of respect for privacy Art 10 – Principle of transparency dr. hab. Jerzy Supernat

  10. Good administration in European administrative law The contribution of the European Courts dr. hab. Jerzy Supernat

  11. Good administration in European administrative law 2005:4 Principles of Good Administration in the Member States of the European Union • Case Law of the European Court of Justice (ECJ) • and European Court of First Instance (ECFI) • The European Courts have stressed the importance of procedural guarantees as a counterweight to administrative discretion. ECJ has further recognised an array of general administrative principles, e.g.: • the general principle of administration through law • the principle of non-discrimination (comment: theprinciple of non-discrimination is based on the assumption of equal value ofall human beings, which is a corner stone in most legal systems) • the principle of proportionality • the principle of legal certainty • the protection of legitimate expectations • the right to a hearing before an adverse decision is taken by a public authority • The obligation to provide reasons for decisions is laid down in the Treaty asArt 253 (ex Art 190): „Regulations, directives and decisions (…) shall state the reasons on which theyare based and shall refer to any proposals or opinions which were required tobe obtained pursuant to this Treaty” (today Art 296 TFUE – JS).The ECJ and the ECFI have developed this article into a fundamental rightfor individuals thus creating an unwritten administrative law through itscase law.Such reasoning of ECJ and ECFI might be interpreted as an evolutionaway from a French-inspired administration-centered tradition towardsa more individual-oriented view of community administrative procedures. dr. hab. Jerzy Supernat

  12. Good administration in European administrative law Charter of Fundamental Rights of the European Union dr. hab. Jerzy Supernat

  13. Good administration in European administrative law Charter of Fundamental Rights of the European Union (CFR) proclaimed by the European Parliament, the Council and the Commission on 7 December 2000 (initially without binding legal force, but today – through Art 6(1) TEU – the CFR has got the same status as the Treaties and therefore good administration under its Art 41 took on a double status of a fundamental right and a general principle of EU law; Art 41 draws the boundaries of good administration as a public subjective right). Article 41Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes* (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. Notabene the above aspects of the right to good administration can be find in the following provisions of TFEU: Art 24(4), Art 108(2), Art 296(2), and Art 340. * Rights and obligations are enumerated in non-exhaustive manner; in other words, good administration in Art 41 is a general category under which may be subsumed a whole set of subjective rights intended to limit arbitrary administrative conduct in the Union.In other words,a category of rights rather than as a right in its own. dr. hab. Jerzy Supernat

  14. Good administration in European administrative law • Differences between • the right to good administration and • the principle of good administration under the CFR • The Court of First Instance in Case T-193/04 Tillack v Commission [2006] ECR II-3995 held that:[T]he principle of sound administration, which is the only principle alleged to have been breached in this context, does not, in itself, confer rights upon individuals (Case T‑196/99 Area Cova and Others v Council and Commission [2001] ECR II‑3597, paragraph 43), except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter of fundamental rights of the European Union, proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), which is not the case here, para 127. • The other difference relates to the limits of the protection offered. Article 41 is applicable only to activity of the EU’s institutions, bodies, offices and agencies. This is an exception to the specification of the general field of application in Article 51(1) CFR, according to which the provision of the CFR are also addressed to the Member states when ‘implementing Union law’. Therefore the European courts referring to good administration as a general principle of EU law enable these principles to be invoked also against Member States when acting ‘within the sphere of Community law’ (Case C-260/89 ERT v DEP [1991] ECR I-2925) and esp. in line with Lisrestal case law in the area of cooperative administration (Case T-450/93 Lisrestal and others v Commission [1994] ECR II-1177). dr. hab. Jerzy Supernat

  15. Good administration in European administrative law OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 27 OCTOBER 1983 in Case 64/82 TRADAX v COMMISSION [1984] ECR 1385-6 [Nor do I consider, as is submitted, that there is any generalized principle of law that what is required by good administration will necessarily amount to a legally enforceable rule. To keep an efficient filing system may be an essential part of good administration but is not a legally enforceable rule. Legal rules and good administration may overlap (e.g. in the need to ensure fair play and proportionality); the requirements of the latter may be a factor in the elucidation of the former. The two are not necessarily synonymous. Indeed, sometimes when courts urge that something should be done as a matter of good administration, they do it because there is no precise legal rule which a litigant can enforce]. This opinion has been corroborated by Courts, for example, when they consider that regrettable conduct is liable to breach the principle of good administration but does not vitiate the legality of a decision (ABB Asea Brown Boveri Ltd vs Commission [2002] II-1881, para. 104) or that rules directed at ensuring good administration do not necessarily constitute procedural guarantees on which individuals can rely (Aseprofar and Edifa vs Commission [2005] ECR II-3449, para. 56). dr. hab. Jerzy Supernat

  16. Good administration in European administrative law Draft Charter of Fundamental Rights of the European Union Brussels 11 October 2000 Note from the Praesidium Text of the explanations relating to the complete text of the Charter. These explanations have been prepared at the instigation of the Praesidium. They have no legal value and are simply intended to clarify the provisions of the Charter. Explanation Article 41 is based on the existence of a Community subject to the rule of law whose characteristics were developed in the case law which enshrined inter alia the principle of good administration [...]. Cologne European Council 3-4 June 1999 Conclusions of the Presidency Annex IV – European Council Decision on the Drawing Up of A Charter of Fundamental Rights of the European Union Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Union's development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union's citizens. […] In the view of the European Council, a draft of such a Charter of Fundamental Rights of the European Union should be elaborated by a body composed of representatives of the Heads of State and Government and of the President of the Commission as well as of members of the European Parliament and national parliaments. Representatives of the European Court of Justice should participate as observers. Representatives of the Economic and Social Committee, the Committee of the Regions and social groups as well as experts should be invited to give their views. Secretariat services should be provided by the General Secretariat of the Council. This body should present a draft document in advance of the European Council in December 2000. […] dr. hab. Jerzy Supernat

  17. Good administration in European administrative law EXPLANATIONS RELATING TO THE CHARTER OF FUNDAMENTAL RIGHTS OJ 2007/C 303/02 These explanations were originally prepared under the authority of the Praesidium of the Convention which drafted the Charter of Fundamental Rights of the European Union. They have been updated under the responsibility of the Praesidium of the European Convention, in the light of the drafting adjustments made to the text of the Charter by that Convention (notably to Articles 51 and 52) and of further developments of Union law. Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter. Explanation on Article 41 — Right to good administration Article 41 is based on the existence of the Union as subject to the rule of law whose characteristics were developed in the case-law which enshrined inter alia good administration as a general principle of law (see inter alia Court of Justice judgment of 31 March 1992 in Case C-255/90 P Burban [1992] ECR I-2253, and Court of First Instance judgments of 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589, and 9 July 1999 in Case T-231/97 New Europe Consulting and others [1999] ECR II-2403). The wording for that right in the first two paragraphs results from the case-law (Court of Justice judgment of 15 October 1987 in Case 222/86 Heylens [1987] ECR 4097, paragraph 15 of the grounds, judgment of 18 October 1989 in Case 374/87 Orkem [1989] ECR 3283, judgment of 21 November 1991 in Case C-269/90 TU München [1991] ECR I-5469, and Court of First Instance judgments of 6 December 1994 in Case T-450/93 Lisrestal [1994] ECR II-1177, 18 September 1995 in Case T-167/94 Nölle [1995] ECR II-2589) and the wording regarding the obligation to give reasons comes from Article 296 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 298 of the Treaty on the Functioning of the European Union for the adoption of legislation in the interest of an open, efficient and independent European administration). Paragraph 3 reproduces the right now guaranteed by Article 340 of the Treaty on the Functioning of the European Union. Paragraph 4 reproduces the right now guaranteed by Article 20(2)(d) and Article 25 of the Treaty on the Functioning of the European Union. In accordance with Article 52(2) of the Charter, those rights are to be applied under the conditions and within the limits defined by the Treaties. The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 of this Charter. Comment: Good administration can therefore be seen as the administrative law equivalent to the constitutional notion of the ‘Community of law’ concept proclaimed by the ECJ in Case 294/83 Les Verts v Parliament [1986] ECR 1339. dr. hab. Jerzy Supernat

  18. Good administration in European administrative law European Code of Good Administrative Behaviour dr. hab. Jerzy Supernat

  19. Good administration in European administrative law • The European Code of Good Administrative Behaviour • Proposed by European Ombudsman and approved by the European Parliament • on 6 September 2001 • The Ombudsman: the code is intended to explain in more detail what the Charter’s right to good administration should mean in practice. • While claiming to explicate the content of the right to good administration, the code displays rather an eclectic set of rules and as a result three different layers of good administration can be identified in the code’s 27 articles: • It includes a codification of general principles of European administrative law (legality, non-discrimination, proportionality, absence of abuse of power, respect for legitimate expectation, transparency). • It restates procedural and substantive rights and duties which result from European law. Some of these are fundamental rights enshrined in the CFR (data protection, the right to complain to the European Ombudsman), some correspond to the rights listed in Art 41 of the CFR, others correspond roughly to long-standing primary rules of European law (notification of decisions). • It embraces rules of administrative practice which are directed by the idea of providing a good service to the public and in principle don’t form judicially enforceable rights or rules (the duty to advise the public on handling of cases, to act courteously, to acknowledge the receipt of letter or complaint and provide an information on who is dealing with the matter, to transfer a file to competent services, to indicate the possibility of appeal and so on). dr. hab. Jerzy Supernat

  20. Good administration in European administrative law • The European Code of Good Administrative Behaviour • Article 4 Lawfulness • The official shall act according to law and apply the rules and procedures laid down in EU legislation. The official shall in particular take care to ensure that decisions which affect the rights or interests of individuals have a basis in law and that their content complies with the law. • [Nb. the principle of lawfulness is also given expression by the requirements pursuant to Arts 5 to 9 of the Code]. • Emphasis of the principle of lawfulness of administrative activity recalls that the principle of good administration emanates from the rule of law. • The rule of law entails: • the submission of official action to the rules and procedures laid down in EU legislation • the requirement of having a legal basis for action, esp. for decisions which affect the rights or interests of individuals • This approach reflects the dual approach in the legal systems of several Member States.E.g. in Poland Article 7 of the Constitution of the Republic of Poland reads: The organs of public authority shall function on the basis of, and within the limits of, the law. In German constitutional and administrative law these two aspects of the rule of law are emphasized as the requirement of having a legal basis for an action by the administration (Vorbehalt des Gesetzes) and the requirement of acting according to law (Vorrang des Gesetzes). dr. hab. Jerzy Supernat

  21. Good administration in European administrative law 2005:4 Principles of Good Administration in Member States of the European Union dr. hab. Jerzy Supernat

  22. Good administration in European administrative law 2005:4 Principles of Good Administration in the Member States of the European Union • The following rights and obligations are, as all part of Art41 and Art. 42 in the Charter of Fundamental Rights of the Union and shouldnaturally be seen as a central part of the concept of goodadministration. • to have ones affairs handled impartially and fairly and within areasonable time (Art 41.1) • to be heard before any individual measure is taken that would affect thecitizen adversely (Art 41.2) • to have access to his or her file, regarding any individual measure thatwould affect him or her (Art 41.2) • the obligation to state reasons in writing for all decisions (Art 41.2) • the right of access to documents (Art 42). • The following substantive principles are part of the European Code of GoodAdministrative Behaviour. The following substantive principles were consideredminimum substantial requirements for establishing a good administration. • lawfulness (Art 4) • non-discrimination (Art 5) • proportionality (Art 6). • The following obligations are further part of the European Code of GoodAdministrative Behaviour. • the obligation to be service-minded (Art 12) • the obligation to give an indication of remedies available to all personsconcerned (Art 19) • the obligation to notify all persons concerned of a decision (Art 20) • the obligation to keep registers (Art 24) • the obligation to document administrative processes (Art 24). dr. hab. Jerzy Supernat

  23. Good administration in European administrative law 2005:4 Principles of Good Administration in the Member States of the European Union • Conclusions • A core set of principles on good administration is widely accepted among • the Member States of the European Union. The following principles • of good administration are embraced by a majority of them: • The principles of lawfulness, non-discrimination and proportionality. • The right to have ones affairs handled impartially and fairly and within a reasonable time. • The right to be heard before any individual measure is taken that would affect the citizen adversely. • The right to have access to his or her file, regarding any individual measure that would affect him or her. • The right of access to documents. • The obligation to state reasons in writing for all decisions. • The obligation to give an indication of remedies available to all persons concerned. • The obligation to notify all persons concerned of a decision. • The obligation to be service-minded. dr. hab. Jerzy Supernat

  24. Good administration in European administrative law 2005:4 Principles of Good Administration in the Member States of the European Union • The interpretation of the principles of goodadministration • will vary between fourEuropean traditions of administrative law • The development of administrative law has always been deeply influencedby European history, culture and constitutional contexts and it is importantto keep in mind that the subject of this survey, principles and rules of goodadministration will look different depending on the Member State inquestion. From the literature, we can infer at least four traditions of administrativelaw in Europe. • The administration-centeredtradition views administrative law as a toolfor governments to run an efficient administration. As such, it isdesigned for the construction of efficient administration and implementationof policies. • The individual-centered tradition tends to treat administrative law as aninstrument for controlling government and protect individuals frominfringements of their rights. It views administrative law as the rules thatkeeps the government within its legitimate boundaries and thus regulatesthe relationship between the State and the Citizens. • The legislator-centeredtradition relies on the legislator to design administrativeprocedures, often in the form of a very detailed administrativeprocedure act, or in some cases in the form of constitutional provisions.This represents the German ethos of the Rechtsstaat where the administrationis viewed as a mere executant of the law. • The ombudsman-centeredtradition is representative of the Scandinaviancountries. Characteristic of this more pragmatic tradition is that anindependent person, who is often appointed by theparliament, worksoutside of the executive in order to identify, investigate and recommendsolutions to cases of maladministration. In those cases where anOmbudsman has emerged as the primary means of redress for citizenswho have suffered injury by the administration, the development of astrong litigation culture has often not taken place. dr. hab. Jerzy Supernat

  25. Good administration in European administrative law Other codes dr. hab. Jerzy Supernat

  26. Good administration in European administrative law • Other codes intending to steer administrative behaviour • and give effect to the principle of good administration • Code of Good Administrative Behaviour for staff of the European Commission in Their Relations with the Public. • Guide to the Obligations of Officials and other Servants of the European Parliament. • Public service principles that should guide EU civil servants (framed by the European Ombudsman in 2012) dr. hab. Jerzy Supernat

  27. Good administration in European administrative law European Parliament resolution of 15 January 2013 dr. hab. Jerzy Supernat

  28. Good administration in European administrative law European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union The European Parliament, –  having regard to Art 225 of the Treaty on the Functioning of the European Union, –  having regard to Art 298 of the Treaty on the Functioning of the European Union, –  having regard to Art 41 of the Charter of Fundamental Rights of the European Union, which provides that the right to good administration is a fundamental right, […] –  having regard to the Council of Europe's Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration, dated 20 June 2007, –  having regard to the 'Public service principles for the EU civil service' published by the European Ombudsman on 19 June 2012, –  having regard to the survey commissioned by the Swedish Government from the Swedish Agency for Public Management on the principles of good administration in the Member States of the European Union 1.  Requests the Commission to submit, on the basis of Art 298 of the Treaty on the Functioning of the European Union, a proposal for a regulation on a European Law of Administrative Procedure, following the detailed recommendations set out in the Annex hereto; 2.  Confirms that the recommendations respect fundamental rights and the principle of subsidiarity; 3.  Considers that the requested proposal does not have financial implications; 4.  Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council, to the European Ombudsman and to the parliaments and governments of the Member States. dr. hab. Jerzy Supernat

  29. Good administration in European administrative law Recommendation 1 on the objective and scope of the regulation to be adopted The objective of the regulation should be to guarantee the right to good administration by means of an open, efficient and independent administration based on a European Law of Administrative Procedure. The regulation should apply to the Union's institutions, bodies, offices and agencies (‘the Union's administration’) in their relations with the public. Its scope should therefore be limited to direct administration. It should codify the fundamental principles of good administration and should regulate the procedure to be followed by the Union's administration when handling individual cases to which a natural or legal person is a party, and other situations where an individual has direct or personal contact with the Union's administration. dr. hab. Jerzy Supernat

  30. Good administration in European administrative law Recommendation 3 on the general principles which should govern the administration The regulation should codify the following principles: –  principle of lawfulness –  principle of non-discrimination and equal treatment –  principle of proportionality –  principle of impartiality –  principle of consistency and legitimate expectations (The Union's administration shall be consistent in its own behaviour and shall follow its normal administrative practice, which shall be made public. In the event that there are legitimate grounds for departing from such normal administrative practice in individual cases, a valid statement of reasons should be given for such departure.Legitimate and reasonable expectations that persons might have in the light of the way in which the Union's administration has acted in the past shall be respected). –  principle of respect for privacy –  principle of fairness –  principle of transparency –  principle of efficiency and service dr. hab. Jerzy Supernat

  31. Good administration in European administrative law Varia dr. hab. Jerzy Supernat

  32. Good administration in European administrative law Austria's Constitution of 1920 Reinstated in 1945 with Amendments through 2009 Article 18, subsection 1: The entire public administration shall bebased on law. dr. hab. Jerzy Supernat

  33. Good administration in European administrative law The Constitution of Finland 11 June 1999 Section 21 - Protection under the law Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legallycompetent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligationsreviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decisionand the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by anAct. dr. hab. Jerzy Supernat

  34. Good administration in European administrative law Spanish Constitution PASSED BY THE CORTES GENERALES IN PLENARY MEETINGS OF THE CONGRESS OF DEPUTIES AND THE SENATE HELD ONOCTOBER 31, 1978 RATIFIED BY REFERENDUM OF THE SPANISH PEOPLE ON DECEMBER 7, 1978 SANCTIONED BY HIS MAJESTY THE KING BEFORE THE CORTES GENERALES ON DECEMBER 27, 1978 Section 105 The law shall make provision for: a)The hearing of citizens, directly, or through the organizations and associations recognised by the law, in the process of drawing up the administrative provisions which affect them. b)The access of citizens to administrative files and records, except to the extent that they may concern the security and defence of the State, the investigation of crimes and the privacy of persons. c)The procedures for the taking of administrative action, with due safeguards for thehearing of interested parties when appropriate. dr. hab. Jerzy Supernat

  35. Good administration in European administrative law Administrative Procedure Act in Latvia Adopted 25 October 2001 Section 6 Principle of Equality In matters where there are identical factual and legal circumstances, institutions and courts shall adopt identical decisions (in matters where there are different factual or legal circumstances – different decisions) irrespective of the gender, age, race, skin colour, language, religious beliefs, political or other views, social origin, nationality, education, social and financial status, type of occupation or other circumstances of participants in the administrative proceedings. dr. hab. Jerzy Supernat

  36. Good administration in European administrative law Maladministration The EuropeanOmbudsman’s definition of maladministration in his 1997 Annual Report: [M]aladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it. Article 228 TFUE A European Ombudsman […] shall be empowered to receivecomplaints from any citizen of the Union or any natural or legal person residing or having itsregistered office in a Member State concerning instances ofmaladministration in the activities of theUnion institutions, bodies, offices or agencies, with the exception of the Court of Justice of theEuropean Union acting in its judicial role. […] dr. hab. Jerzy Supernat

  37. Good administration in European administrative law An official is... dr. hab. Jerzy Supernat

  38. Good administration in European administrative law An official is a citizen in the service of people. Estonian Public Service Code of Ethics (the annex to Public Service Act passed on 25 January 1995) dr. hab. Jerzy Supernat

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