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INTRODUCING THE RIGHT TO GOOD ADMINISTRATION IN THE LAW OF THE EUROPEAN UNION AND SELECTED FEATURES OF GOOD PUBLIC ADMINISTRATION NEPREČÍTANÉ MagOff 

     
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    24.01.2012doc. JUDr. PhDr. Peter Potasch PhD.
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    POJMY: správa
    PRÁVO NA DOBRÚ SPRÁVU V RÁMCI PRÁVA EURÓPSKEJ ÚNIE
    A VYBRANÉ ZNAKY DOBREJ SPRÁVY


    JUDR. PHDR. PETER POTASCH, PHD.
    PANEURÓPSKA VYSOKÁ ŠKOLA,
    FAKULTA PRÁVA - ÚSTAV VEREJNÉHO PRÁVA
    E-MAIL: PETER.POTASCH@UNINOVA.SK


    KĽÚČOVÉ SLOVÁ: 
    verejná správa, dobra správa, právo, zásada, Európska únia, Európsky súdny dvor, Súd prvej inštancie, zodpovednosť, zákaz diskriminácie, ľudské právo, sloboda, participácia, transparentnosť, princíp blízkosti, decentralizácia

    KEY WORDS: 
    public administration, good governance, good administration, right, principle, European Union, European Court of Justice, Court of First Instance, accountability, non-discrimination, human rights, freedoms, participation, transparency, principle of proximity, decentralisation

    ABSTRAKT:
    Predkladaný príspevok rieši dve základné témy. Na strane jednej poskytuje základné atribúty práva na dobrú správu tak ako je vymedzená v práve Európskej únie. Analýza sa zameriava na samotné pramene tohto práva, ako aj na jeho obsahovú náplň. Na strane druhej, príspevok poskytuje analýzu niektorých elementov dobrej správy. V tomto kontexte autor primárne skúma základné “hodnoty”, ktoré by mali byť vlastné určitej verejnej správe, aby mohla spĺňať podmienky dobrej správy. V súvislosti s uvedeným autor v úvode príspevku rieši atribúty verejnej správy z hľadiska teórie. V neposlednom rade autor čitateľovi prezentuje zásadu blízkosti a súvisiace princípy decentralizácie.

    ABSTRACT/SUMMARY:
    The presented study deals with two fundamental topics. Firstly, it provides a brief introduction into the right to good administration as defined by the law of the European Union (by providing a short legal analysis of the relevant sources of law and of the content of the right), secondly it introduces selected features of good public administration. Within the second part of the study, the author focuses on the issue of basic values that must be adopted by the public administration if/when exercising their powers in line with the notion of good administration and at the same time the author provides a short introduction into the factors that must be primarily inspected when evaluating the efficiency of public administration and the need of introducing some reforms into the system of public administration. Alongside with these issues, the author discusses in the very beginning of the study the term of “public administration” especially in contrast with the term of “state administration” used by scholars in many countries – mainly in Europe. Within the theoretical perspective, the author introduces the reader to the principle of proximity within public administration and to the relating matters of decentralisation of public administration.

    INTRODUCTION

    In any country which operates in line with the basic principles of democracy – especially in compliance with the rule of law, good governance and efficient public administration are a must. There are many principles supporting this idea, however, one of the most frequent ones to this end is the principle of proximity. The principle of proximity means that actions to be taken and decisions to be made by bodies of public administration are to be vested with the authority or body being closest to the person concerned. Logically, this notion fully supports the idea that central public administration with only one level and layer of administrative bodies is not sufficient in the vast majority countries and societies. The situation becomes more complicated in case of federative countries or in countries with large population.

    In the presented paper, we will deal with two basic issues. Firstly, we will provide the basic elements of “good administration” in the European Union and secondly, we will provide the reader with some basic concepts the adoption of which could lead to a more efficient public administration.

    However, before getting into the gist of the topic, we will have to deal with some theoretical matters. One of these theoretical issues we have to be clear about is the content of the term “public administration”. To us, the term public administration refers to the set of bodies, agencies or other actors which have some public powers used to fulfil some tasks which were transferred on these bodies by the relevant legal systems. The definition itself provides us with the two dimensions of public administration: the static element of public administration refers to the bodies, agencies, offices etc. which were vested with some public powers (and duties). The dynamic element of public administration refers to the actions taken and decisions made by these bodies, agencies, offices etc. As the logic suggests, both elements of public administration have to be present at the same time in order to provide for an efficient platform of public governance. If there were no bodies and agencies (the static element), naturally there would be no dynamic element of public administration either (since there would be no institutions to carry out these activities). The same applies if the lawmaker defined the powers of the bodies and institutions (the dynamic element) but would not create the organs which would be tasked with these powers. Simple rational thinking brings us to the point that in order for the public administration to operate, it needs to have a static but also a dynamic element.

    Another matter we need to clarify before going any further is the comparison of public administration and state administration. These terms – especially in Europe – are often used interchangeably. However, there is a clear line between the terms. Public administration – to us – is a much broader term than state administration. State administration refers to state agencies and their tasks (e.g. ministries, departments etc.). Public administration, on the other hand, refers to all subcategories of administration within the public sphere, i.e. it includes also local authorities – local/territorial self-government, public service broadcasters who also have some tasks within public administration but are independent of the state authorities, various professional chambers that in many countries replace or supplement the functions of the state etc.

    According to another approach introduced by some scholars and specialists, public administration can be looked at as the aggregate machinery (policies, rules, procedures, systems, organizational structures, personnel, etc.) funded by the state budget and in charge of the management and direction of the affairs of the executive government, and its interaction with other stakeholders in the state, society and external environment – and on the other hand – as the management and implementation of the whole set of government activities dealing with the implementation of laws, regulations and decisions of the government and the management related to the provision of public services. However, under no circumstances do we find it relevant to consider the terms public administration and state administration of the same nature and content.

    Once the basic issues are clarified, we have the chance of entering the topic of “good administration” from the point of law within the European Union.

    THE RIGHT TO GOOD ADMINISTRATION IN THE EU

    Today, good administration is a fundamental right of all persons within the European Union. This is due to the fact that the right to good administration became part of the Charter of Fundamental Rights of the European Union (the Charter), which was incorporated into the EU Law by the Lisbon Treaty . Due to this fact, in the majority of EU Member States, the right to good administration within the EU is fully accepted and guaranteed through the accession to the relevant legal instrument. Before the adoption of the Charter, however, the right to good administration existed in the EU law in the form of a general principle of law. The European Court of Justice and the Court of First Instance declared in a number of their decisions that every person is entitled to good administration within the activities and actions taken by the EU bodies. The problem was that their application and the content of this principle were rather different with differing ideas and concepts. Some scholars argue that in many cases good administration was simply declared as a “sub-principle” attached to other main principles, while other lawyers are of the opinion that the decision of the European Courts (see above) were declaring good administration as a main and independent principle within the EU.

    Although the decision of the European Courts were important and definitely useful for the strengthening of the idea of good administration in Europe, another legal step having being at least of the same importance, was the adoption of the European Code of Good Administrative Behaviour which was proposed to the European institutions, bodies and agencies by the European Ombudsman at the end of the 1990s.

    From the above short introduction, it must be clear by now that good administration was originally a general principle of law having its expression also in the European Code of Good Administrative Behaviour. Knowing this, one can ask the following question: why was it important (in reference to the above facts) to incorporate good administration into the Charter? What is the new feature of this right once expressed in the Charter? The answer comprises two elements: On one hand, the right to good administration became a fundamental right, i.e. it has a strong binding power. Technically, good administration was elevated from the level of “general principles” to the level of a binding freedom/right. On the other hand, unlike in many other cases, the right to good administration is not a bear proclamation of an existing right but the Charter provides a set of procedural rights which form – inter alia – the right to good administration. In other words, the right to good administration moved from the level of an objective substantive declaration to the level of subjective personal / procedural rights (as it will be shown later in this study).

    BASIC ELEMENTS OF THE RIGHT TO GOOD ADMINISTRATION AS DEFINED IN ARTICLE 41 OF THE CHARTER

    The first thing worth mentioning in this context is the fact that unlike in other Articles of the Charter, the lawmaker guarantees the right to good administration to any “person”. In the majority of other rights/freedoms guaranteed by the Charter, the term “citizen” is used. The motivation behind using the term “every person” rather than “every citizen” seems to be clear. Most importantly, the term citizen evokes the feeling that only individuals are guaranteed this right. This, however, would not be a correct presumption. On contrary, it is usually different corporations that enter into legal relations with EU bodies, agencies and institutions; it is rare to see that a natural person enters such legal relations. At the same time, EU citizenship, i.e. citizenship of one of the EU Member States is not a precondition to be given this right. EU law makes it possible for non-EU persons, including corporations e.g. to apply for the protection of various products of the mind (intellectual property), protection of traditional foodstuffs, designation of origin etc. If the “citizenship condition” would be followed, it is clear that the persons involved (natural and legal entities) would not always meet this criterion (corporations do not acquire citizenship, they may have a registered seat only etc.).

    The right to good administration (in line with the wording of Article 41 of the Charter) means that every person is entitled to have his/her matter handled impartially, fairly and within reasonable time. Impartiality in the most general sense means that the EU institution/body handling the matter is not biased will not discriminate against applicant etc. Impartiality to this end shall include not only the negative dimension of the issue, but also the positive one (i.e. the EU body/institution or their representative would not be impartial if for some reason s/he would favour the applicant – especially in comparison to other applicants). The fact that the matter must be handled fairly means that the institution/body shall apply the relevant laws, shall determine the facts of the case to the best possible way, shall apply its discretion (if possible) in an objective and not unfounded way etc. The condition of “reasonable time” refers to those cases in which the EU law does not prescribe a fixed time period in which the EU body/institution ought to take a measure or ought to make a decision. In many cases, the source of law defines the time limits in which the EU body/institution/agency must render a decision or take other action. If that is the case, the time period defined by the relevant source of law has priority and must be complied with. However, in cases in which the law does not specify any time limits, the decision must be made or an action must be taken within reasonable time, which is usually determined by the facts of the case, the complexity of the case, the legal nature of the case, the standard of cooperation of the party and some other factors. We also believe that the principle of “reasonable time” shall be applicable also to those situations in which the law defines a maximum time limit in which the action shall be taken - to the extent, that if there are no grounds for the EU institution/body not to decide the case at a later point, it shall decide the matter as soon as possible and must not wait for the last day of the deadline. In other words, it the EU institution/body has e.g. six months for issuing a decision, it shall issue the decision as soon as possible (in reasonable time) if there are no justified grounds to postpone the decision-making or measure-taking to a later date.

    According to Article 41 par. 2 and par. 4 of the Charter, the right to good administration includes the following elements:

    1. the right of every person to be heard before any individual measure which would affect him or her adversely is taken – this right of the person corresponds to the duty of the EU institution/body to hear the arguments of the person if a decision to be rendered by the body/institution shall have an adverse effect on him/her. The interesting thing of this provision is that the guarantee to be heard by the body/institution is not given in all cases but only in those in which the decision of the body/institution would affect the applicant adversely. By the means of logic, however, it shall apply to all cases.
    2. 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 – viewing the file in which the facts of the applicant’s case are recorded, belongs to the right of any person since it is his/her legitimate interest to be able to view these documents. Nevertheless, confidentiality but also professional and business secrecy are protected by this provision of the Charter.
    3. the obligation of the administration to give reasons for its decisions – decisions of administrative nature rendered by administrative bodies shall be reasoned. The reasoning of the decision does not only satisfy the argumentation and the outcome of the EU body/institution in an individual case but it also has a far-reaching effect on future cases of the same or similar nature.
    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 – par. 4 of Article 41 of the Charter enables applicants the communication in any of the languages of the Treaties and guarantees them to have the reply in the same language (or language requested).
    As already suggested in the previous sections of this study, Article 41 of the Charter leaves the concept of general declarations and provides for a set of procedural rights that are given to a person in particular cases. All rights briefly described in lit. a) to lit. d) are technically procedural rights. The EU body/institution has no right to act in contrary with these rights.

    Last but not least, we also need to discuss the following issue: who is bound to follow the rules as set forth by the Charter – is it the EU bodies/agencies only or do these provisions apply to the administrative bodies of the Member States as well (i.e. national administrative bodies)? It is more than clear that Article 41 par. 1 of the Charter refers only to the institutions and bodies of the Union. Nevertheless, in Article 51 titled Scope (Chapter VII, General Provision) the lawmaker declares as follows: "The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.” Article 51 par. 1 of the Charter suggests that the right to good administration as defined in Article 41 of the Charter shall apply also to national administrative authorities when they are implementing Union law. The key question, however, remains when attempting to define the word “implementing” (or implementation). One of the interpretations (and that is also the interpretation we tend to accept) is that Article 41 is a special legal norm in relation to Article 51 of the Charter, thus the right to good administration shall apply only to the institutions and bodies of the Union, not the Member States since Article 41 quite clearly states that these rights (see above) are applicable only relation to the institutions and bodies of the EU.

    The last issue we need to address in this study is the matter of remedy in case EU institutions and bodies fail to comply with their duties in respect of good administration. To this end, Article 41 of the Charter defines that every person has the right to have the Community 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.

    SELECTED FEATURES OF GOOD PUBLIC ADMINISTRATION

    There are no doubts about the fact that national administrative bodies are usually the first points of contact with public powers for the majority of citizens of the state. It is administrative bodies that citizens come across when dealing with their everyday business. Since administrative authorities are bodies vested with public powers, they must follow certain rules in order not to violate the rights and freedoms of persons guaranteed usually by the constitution of the country or some other source of law.

    Recently the right to development and the right to good administration are becoming a frequent topic of discussions of scholars but also of the lawmakers. One of the links that can be identified between the terms is that the right to good governance (good administration) is one of the guarantees of the right to development. To express it in a simple way: good governance is one of the tools by which the right to development can be fulfilled, guaranteed and exercised.

    At the same time, a good administration must be exercised in a way in which the basic human rights and freedoms are fully accepted, guaranteed and achieved. From this perspective, the following legal elements of good administration need to be mentioned:

    1. (Lines of) Accountability of Actors – once the state directly or indirectly empowers certain public or private institutions with the exercise of public powers in the process of public administration, these actors shall not be looked at purely from the perspective of their rights (i.e. their rights to exercise certain competences), but also from the perspective of their duties. If an institution is vested with the competence, the competence itself becomes the limit of actions taken by the competence. If for some reason the actors fail to exercise the competence entirely, exercise it in a wrong way or by using the wrong means, i.e. they do not exercise the competences properly and in line with the laws, then those actors must be held liable for such failure. Administrative bodies shall be fully accountable to the public, especially in relation to the most vulnerable sections of the society (i.e. minorities, the poor people, and people with disabilities). Lines of accountability must exist in a number of ways: the legal ways (i.e. legal consequences of failure – possibility of remedies for the aggrieved party etc.), the political ways (i.e. political consequences of failure – resigning from office, not appointing/electing the person to the same office in the next elections etc.), the social ways (i.e. social defamation in case of failure – this is usually achieved via the media – if the media is free in the country concerned).
    2. The Rule of Non-Discrimination – in order for the public administration to operate properly, the administrative bodies must not discriminate against any representative of any section of the community. At the same time, the non-discrimination condition applies also to the fact that when forming offices and filling the vacancies, representatives of all sections of the society shall be proportionately represented as members of staff of administrative bodies. Generally speaking, the non-discrimination rule has two perspectives: it prohibits and discrimination when exercising the public powers in relation to the people and at the same time, it prohibits discrimination when establishing public bodies and deciding about their composition.
    3. Lines of Direct Control (Empowerment of Citizens) – in case citizens find it relevant, a system of tools must be placed in operation in order to protect their rights and freedoms if the organs of public administration fail in fulfilling their tasks. This applies especially and mainly in those cases, in which the actions or decisions of administrative bodies are in breach of human rights and freedoms. The actions which must be guaranteed to the citizens are of political but also of legal nature (e.g. petitions, referenda etc.).
    4. Transparency – transparency is one of the key elements of any public administration. The actions and decisions of public administrative bodies must be transparent, logical and well founded. This is the only way how to protect the rights and freedoms of the citizens. Decisions of administrative bodies which extremely deviate from the facts of the case, from the evidence presented etc. make the actions and decisions of the administrative body insufficiently transparent. Even in cases in which the decision of the case is correct from the point of law, in order for the decision or action to be accepted by the society, the way this decision was reached must be transparent.
    5. Participation of Citizens – participation of citizens is another must for the proper exercise of public administration. Citizens shall not be looked at only as the ones who are managed but also as those who have the right and who must have the possibility to participate in the decision-making and in action-taking. This participation must not be limited only to the elections in which citizens decide about their representatives but the possibility of participating on the decision-making must be given to the citizens also in times, in which the representative bodies are already in existence and operation. Examples of such participation include public discussions involving the residents of the relevant community, public sittings of the decision-making authority, possibility of commenting a certain action before it is taken by the authority etc. As seen from these examples, transparency and participation usually go hand in hand, thus if one of them is absent, it usually leads to the absence of the other as well. On the other hand, if the tools applied make it possible for the citizens to participate in the decision making, such decision-making is usually transparent.

    In order for the above conditions to be met, there is normally a need for the public administration to be decentralised. Decentralisation is actually the practical expression of the principle of proximity in the everyday business of public administration. As we suggested in the above parts of this study, in order for the public administration to be as efficient as possible the proper application of the principle of proximity is a must. The principle of proximity is based on the fact that policy- and/or decision-making shall be as close to the citizen as possible. The proximity is meant mainly in the sense of vertical structure, i.e. the decision making of central administrative bodies should be limited to issues having a national interest or of being of a national interest, while matters of local nature shall be decided by local authorities. If the principle of proximity is applied, the values we were dealing with above will be likely to be accepted and adhered to. If not, it is more than likely that there will be no compliance between the values discussed above and the exercise of public administration. A clear example that illustrates this presumption could be expressed as follows: if a decision concerning a waste dump zone in a small community somewhere in the remote area of the country is decided by a central authority, then such decision would probably be not transparent enough since the body making the decision is far away from the people who could be affected by the dump zone which logically means that these people will have a very minor possibility to participate in the decision-making process or to influence it in any way.

    If on the other hand, the decision on the matter would be made by a body near to the relevant community, it is likely that the decision-making body would involve someone who could be directly involved with the effects of the dump zone, people would have more chance to hold the body liable for a wrong decision mainly due to the social pressure put on the body and it is very likely that citizens would have a better possibility of influencing the outcome of the proceedings, i.e. they would be able to take part in the decision-making process directly.

    We believe that one of the routes any country shall take when building an effective mode of public administration is the mode of decentralisation which fully respects – inter alia – at least those values which we have dealt with in the section above.

    INSPECTING THE EFFICIENCY OF PUBLIC ADMINISTRATION – AN INTRODUCTION

    If one is interested in looking into the efficiency of public administration of any country, there are a number of minimum determinants that they need to look into. In the following parts of the study we will deal with some of them and will provide a set of brief facts about them.

    An administrative body – looking at its very core – is a “fictive” institution. In order for the administrative body to operate, it needs a staff – personnel. In countries with a strong e-government approach, the personnel is not so large, in the case of “classic” governance and public administration, the number of civil servants may be from some thousands to tens of thousands. This of course means that the first element we need to inspect is the existing model of civil service and its possible reforms. If the civil servant is motivated by a number of factors, it is more likely he/she will carry out his/her duties to the best possible level. The motives can be of different nature: e.g. wages, good management, social security etc. When dealing with these issues, the relevant body must make sure that civil servants are managed by a professional individual (or group of individuals) who has the tools and knowledge to provide them with sufficient incentives improving the performance of the staff of the administrative body. Nevertheless, another important factor is the right process of selection of civil servants. Civil servants must be chosen in a transparent and objective way, especially by focusing on the needs of the community (of the administrative body) and on the skills and abilities of the applicant. The administrative body must make sure that the person hired is the one being closest to the needs and requirements of the administrative body and its tasks. At the same time, as one of the incentives administrative bodies can use when improving the quality of service provided to the citizens is for example free further education provided to the civil servants or other free public services. In all cases, the political affiliation of the candidate/applicant for the civil service must not influence the decision making process about whom to employ. Another issue that can improve the quality of services provided by the administrative body is a mission statement of that body. In that case all civil servants have a set of values they have to accept and adhere to. At the same time such mission statement may strengthen the trust of citizens in services provided by that administrative body.

    The quality of the policy- or decision-making is another issue we need to inspect when dealing with the efficiency of the administrative body. Policy- and decision-making is in many cases the very heart of the activities of administrative bodies. In order for these policies and decisions to be considered as good, sufficient and appropriate, the way they are reached must have certain attributes of quality. This usually involves such tools and instruments as: good professional boards, cooperation with experts outside the policy- or decision-maker, strengthening the secretariat or other equivalent body of the administrative body, applying for the support of the community which will be affected by the policy or decision before this decision/policy is made, creating other mechanisms of coordination within the administrative bodies, between the administrative bodies, between the administrative body and the citizens etc. Another important issue in reference to this topic is the fact that any policy or decision made must be flexible enough in the future. In general, this applies also to the process of policy- or decision-making. Any procedure is efficient only if it is flexible enough in order to react to the change of circumstances that may occur in the future.

    The restructuring of the powers of administrative bodies within public administration is usually a must for any country willing to change the quality of its public administration. The general idea one needs to look at is whether the way functions of public administration are distributed are good and if not what steps to take. In some countries, local administrative bodies are based on the principle of “general local authorities” which means they deal with all issues of public administration relating to the people of a certain area. On the other hand, some countries have decided to create a set of specialised local authorities. Logically, both models have their cons and pros and this is the matter to be evaluated when looking at the efficiency of the model. There are many other factors one can inspect – e.g. the territorial issue (are the areas covered by the administrative bodies of the optimal size?), the staff issue (are the civil servants specialists in the area or are they just simple administrators?) etc. Once this evaluation phase has been made, the country should have a report on what needs to changed and how. Following the outcomes of the report, the country shall be able to introduce various reforms which – after all – will restructure /redistribute/allocate the powers among the administrative bodies. Logically, another issue that can be inspected is the possibility of introducing new tools into the system such as e-government etc.

    The last factor we will mention briefly in this study is the financial element of public administration. Governments must evaluate the financial perspectives of public administration in detail. They must make sure that the finances in the budget make it possible to exercise the tasks of all administrative bodies concerned. It is extremely important not to overplan the activities of the administrative bodies if there are no sufficient means to fund the tasks that shall be exercised by these administrative bodies. In order to generalise the issue, governments (central, regional, local etc.) must make sure that the finances provided or gained make it possible for them to exercise their tasks in the best possible way. The evaluation of the financing aspects must be made in advance, i.e. not when a certain public function is already in the process of execution.

    CONCLUSION/SUMMARY

    In this study we believe we introduced the reader to the fact that good administration (in a way it is fixed in the EU law today) has become a fundamental right. Unlike in the past when good administration was a general principle, after the adoption of the Charter of Fundamental Rights of the European Union it has become a fundamental right. Not only has it become a fundamental right in the objective perspective, Article 41 of the Charter sets forth a clear collection of procedural rights which have a subjective nature. From this perspective the right to good administration is a very special right since a primary source of EU law defines its procedural elements. Unlike in the case of other fundamental rights, in the case of the right to good administration, the guarantee reaches out to “all persons” who can be affected by the bodies and institution of the EU and not only to the citizens of the EU.

    In the second part of the study, we introduced the reader to the basic values of any administration that meets the conditions of good administration by focusing on those values which have a legal nature or background. In the final part of the study, the reader received basic information on the factors that must be inspected when dealing with the efficiency of public administration. These include mainly the personnel element of the operation of public administration, the financing of public administration and also the inspection of the way the powers are allocated amongst the respective bodies of public administration – administrative bodies.

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