THE PRINCIPLE OF GOOD ADMINISTRATION IN THE ACTION OF EU INSTITUTIONS

Σελ. 1

Introduction

Since the Renaissance, there has been a close intersection among political theory, constitutional thought and the development of legal theory. In the practice of government, the law started to have a dominant role and legal knowledge was perceived as a necessary prerequisite for the everyday conduct of civil servants’ duties. Many years later, John Locke who is considered as the founder of liberalism was the one who stressed that all laws require the ‘consent of the society’, and that ‘Where-ever Law ends, Tyranny begins’ (Locke, 1698/1988: 356, 400). Philosophers for a while were searching for the ultimate good, which in our case takes the form of good administration. However, a turning point was the work of Machiavelli under the title “The Prince”, where he argued that there is more than one morality in place: one for the people and one for the politician who are in power. However, when Montesquieu, wrote “L’esprit des Lois” (The Spirit of the Law), he was the first to discuss ‘constitutional principles’ and the separation of powers. Ever since, the world progressed and the legal concepts evolved in a separate science.

Nowadays, advanced societies operate in complexity and need to address difficult problems that affect their citizens’ lives. New problems arise all the time such as the devastating effects of environmental pollution, technological innovation, demographic change, and so forth. In doing so, it is required a strong state, while the role of judicial control is rather vital for the so-called checks and balances of the whole system. What makes our epoch more challenging is that the public administrations all over the globe need to do “more with less”. As a result, numerous countries turned to the application of the so-called “3 E’s” for the modernization of their public sector: eco-nomy, efficiency, and effectiveness. The 3E’s are based on the New Public Management (NPM) model. But the question remains: “Are three E’s enough” (Goddard, 1989) today?

As I understand it, the 3E’s which are firmly tight with neoliberal ideas & practices (NPM) fail to indicate other crucial “dimensions” or “aspects” of the public administration machinery, such as the standing position of the legal and administrative concept of “good administration”. The recent pandemic which was caused by the Covid-19 virus, was an excellent example in this respect because brought into light that what is needed is not only to keep an eye on decreasing the public authorities’ budgets (economy), such as at the hospitals but also to offer qualitative services to citizens and to protect a number of fundamental rights, such as the right to access public health. When a public institution offers good and respectful services, then the citizens have the opportunity to experience some of the ‘fruits’ that good administration can offer. That being said, it comes as no surprise that the Council of Europe’s Recommendation (2007)7 considers good administration as a key aspect of good governance.

The concept of good administration is a tool in the legal armory for correcting administrative behavior and setting distinct boundaries to administrative action, since every citizen has the right to bring his/her case in front of the judicial power and ask for an amendment or cancellation of a wrongful administrative decision. As Nehl (1999, p.13) stated: “The notion “good administration” in the broad sense is nothing but an aid to describing the corpus of the continuously evolving – legally enforceable and unenforceable – procedural and substantive requirements with which a modern administration has to comply”. This unfortunately, is not the case, because some administrations seem to overlook or even worse to ignore the implementation of judicial decisions. In this light, the rights of citizens are under threat because cannot be fulfilled.

This Master thesis aims to conduct an analysis of the legal concept of good administration and to present a reflection on the

connections between law and administration. For achieving this aim, it has been formulated the next research question: what is the real content of good administration in the European Union (EU) legal framework? Also a very brief analysis will be conducted for Greece, since the country is making part of the EU family. The task is not an easy one, but deserves our attention because it hasn’t been investigated in depth. Furthermore, what makes the exploration of the term good administration more interesting is that it isn’t limited to the national boundaries of the sovereign states and their national legislations, if we accept the Europeanization approach in law that is going to be explained below.

The central logic of the whole thesis circles around the dichotomy between the principle of good administration and good administration as a citizen’s right. Generally speaking, dichotomies exist for a long time in the administrative law where there is an ongoing discussion about the administration by and protection against the government (Addink, 2019). Yet, the dichotomy of good administration either as a principle or as a right is to some extent pretentious because principles and human rights embody norms of different equivalence in terms of legal force. General principles can be written or unwritten which means that are the implied and unstated assumptions of a given society. The implementation of a principle can also lead to the protection of a right. Just to give an example, in Australia the common law principle of legality is used primarily to protect fundamental rights and freedoms and obtains almost a constitutional character (Neo, 2017, p. 669).

After the Lisbon Treaty, the European institutions are bound to respect EU law in their relations with the European citizens. Good administration has its origin in this duty. Before the ratification of the Lisbon Treaty, each institution has its own approach regarding good administration. Harmonization was therefore a blissful result. For issues of good administration, a very influential institution is the European Ombudsman who receives inquiries that mainly concern: openness and public access to documents, the Commission as

‘Guardian of the Treaties’, institutional and policy matters, the award of tenders and grants, the execution of contracts, administration and the Staff Regulations, competitions and selection procedures. Around one-third of the inquiries, the Ombudsman carried out every year emphasize on lack or refusal of information. Thus, the concept of good administration is more relevant than ever before, while its content gains qualitative characteristics depending on the level of analysis (national or supranational). Ideally, the two levels (nation-state and EU) should ‘walk hand in hand’ based on an interactive and constructive dialogue which will tend to the emergence of common standards of good administration.

Nonetheless, one thing is for certain: only with the limitation of bad administration and discretion, citizens can gain confidence/trust in the administrative institutions, and at the same time, public administration will be able to offer high-quality services which will respect the citizens’ needs. In other words, trust represents the very essence of our democratic systems. Following this line of argument, it is worrisome the findings of a recent survey (Eurofound, 2022) that discovered that trust in institutions continues to fall significantly in EU, despite declining unemployment and phasing out of pandemic restrictions. In that way, Europe enters into a new era of uncertainty and consequently the same applies for its institutions. So it isn’t an exaggeration to argue that trust can be regained, among other things, with the exercise of good administration.

A final comment to be made is that good administration is also going to occupy our concerns in the new technological era. In fact, public administration constitutes a high-risk area in the context of Artificial Intelligence (AI) systems. Without going to any further elaboration, the AI systems reach to specific results, which eventually have an impact on the lives of individuals and their rights. As said by Wróbel (2022, p. 210):

it may become difficult to assess and prove whether someone has been unfairly disadvantaged by the use of AI systems, for example in an application for a public benefit scheme. Also, poor training and design of AI systems can result in significant errors that may undermine fundamental rights. The use of AI systems may leave affected people with significant difficulties to correct erroneous decisions.

The fundamental rights such as good administration cannot be protected by the AI systems, if the necessary legal framework is not in place with the purpose of keeping a track of the technological changes. That being said, the discussion regarding the AI systems is not going to be analyzed in this thesis, since its objective is completely different. It is good to be aware that good administration is not in the bullet proof zone, but is a term that needs to be protected all the time and new legal tools should be designed for that purpose. To put it differently, the content of good administration is affected by the society that thrives in. In more advanced societies, the concept of good administration takes more complex aspects as a concept, in comparison to less developed societies where good administration seems as superfluous luxury.

The organization of the thesis at hand is summarized as follows: Part I refers to good administration as a principle, while Part II refers to good administration as a right. The final section of this thesis is dedicated to the conclusions.

Part I

Good Administration as a Principle

Chapter 1: The Principle of Good Administration in the EU and Greek Legal Order

1.1 The difference between “Good Administration” & “Good Governance”

At this point, it is necessary to make an important distinction between the concept of “good administration” and “good governance” because sometimes are mistakenly confused. The term good governance draws its origin from the produced documents of the World Bank in the early 1990s and the goal of those documents was to run aid programs to developing countries for assisting in their economic and social recovery. But why the good governance concept was so significant in the first place? Because “(t)he implementation of the good governance concept contributes to building trust in the society for actions taken by public administration which seeks to optimize its activities” (Świstak, 2016, p. 45). In other words, good governance results in more transparency in the actions taken by the public administration.

According to some scholars, there is a link between EU public policies and the aid programs of the World Band. As it has been supported by Świstak (2016) pursuing EU public policies has analogs with the aid programs of the World Bank, given that both attempt to implement considerable changes in a specific policy area. Despite if someone agrees with this opinion or not, what needs to be taken into account is that good governance is something wider in comparison to good administration. Good administration is one of the elements the build up the concept of good governance, while at the same time the good administration concept entails a strong legal dimension, which is lacking in the good governance term. Strangely enough, both terms share in common the difficulty to be defined (Börzel, Pamuk & Stahn, 2008).

1.2 The Two European Administration Traditions for Good Administration

Before moving on to the definition of good administration, there will be a brief analysis of the traditions that exist in the European continent for good administration. Those traditions haven’t been canceled by the enforcement of the EU Charter of Fundamental Rights (hereinafter “the Charter”) but were enriched substantially.

In the Anglo-Saxon tradition, the basic characteristics of a good public administration consist of efficiency and transparency of its action, intending to provide effective services to the citizens. For this purpose, codes of “good administration” have been adopted for civil servants. Those codes establish certain obligations for civil servants in the exercise of their duties (Karageorgou 2007), the violation of which sometimes entails disciplinary or even criminal charges, but they do not provide rights to citizens for checking the legitimacy of the administrative actions.

In the Scandinavian administrative tradition, good administration requires both the efficiency and transparency of administrative action, which is achieved by ensuring the right to broad access to documents (Karageorgou, 2007). The Scandinavian therefore administrative tradition adopts the concept of “good administrative practice”, which includes the officials’ rules of ethical behavior, mainly the principle of legality, and by extension all the administrative rules that are related to the administrative procedure. The idea of the Scandinavian administrative culture is to be as open as possible to the public since the level of trust in those countries is very high towards the public authorities.

If someone compares the two traditions, he/she understands easily that the Scandinavian administrative tradition is much more open and transparent than the Anglo-Saxon tradition. The administration of the Scandinavian countries interacts with active citizens who at any moment can check the administrative decisions. The public administration has as its duty to help citizens to exercise their democratic rights, not to block them. Briefly, citizens’ needs come always first.

1.3 Good Administration as a Principle in the EU Legal Framework

In the European Union, good administration is not hanging in the air but is directly associated with the duties that the European institutions need to carry out in their relations with the European citizens. Before the ratification of the Lisbon Treaty, good administration has been handled by each European institution differently and as we saw the same occurred at the national states where different administrative traditions were in place. The situation shifted radically when the Treaty of Lisbon entered into force in 2009 (along with the Charter) and many references were included in primary EU law about the European administration. From this point, good administration evolved from a principle to a right. But what was happening before the legislation of article 41 of the Charter? There were different sources to use for the same thing:

1) Treaty

Certain rights before article 41 of the Charter were previously found scattered in the Treaty: 1) the obligation to give reasons (Article 253 EC), 2) the right to reparation of damages caused by the Community (Article 288 EC), and 3) the right to write to the institutions in one of the Treaty languages and receive an answer in the same language (Article 21(3) EC). There is also a Treaty provision on a right to a fair hearing but has been subordinated only to the field of state aids (Article 88 (2) EC). So in the Treaty, there wasn’t a single article that was dedicated completely to the good administration as such.

2) Case-law of the EU Courts (then Community Courts)

The EU Courts had the more influential impact on the formulation of the good administration concept. From the law cases that were handled by the Court of Justice of the European Union (ECJU) and the European Court of First Instance (ECFI), the principle of good administration was contained, but it didn’t have the same legal power as that of a right. The above European Courts have stressed numerous times the importance of procedural guarantees as a counterweight to administrative discretion. ECJ has further recognized an array of general administrative principles, such as:

• the general principle of administration through law.

• the principle of non-discrimination.

• 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.

With the intention of facilitating the reader’s understanding, I consider a rather sensible choice to define the legal concept of “principle” so as to show the striking differences between both terms and the weaker nature that a principle has in contrast to a right. According to Semmelmann (2013):

A principle is a norm (understood in a broad sense) that shows a certain degree of inherent structural generality in the sense of an indeterminate, abstract, programmatic, non-conclusive or orientative character…principles are frequently unwritten, do not usually form a part of legislation or act easily traceable to legislation. Thus, they are not part of the uncontroversial sources of law. Principles generally incorporate values and morality, and may reflect ideologies and political choices. (Semmelmann, 2013, p.460).

Another key observation is that exist 3 different types of principles with varying effects when put into force. More precisely:

• some principles are quite consistently interpreted to generate enforceable rights for citizens and legal persons, such as general principles governing the investigation of a matter, which concern specifically the activity of the public administration in its relationship with the citizens, e.g. transparency, duty of care, etc.; —

• some principles are often not interpreted to generate enforceable rights for citizens and legal persons, such as organisational/internal principles, that are guidelines concerning the activity of the public administration but do not directly concern the relationship to the citizens, e.g. clear allocation of responsibilities, efficiency, etc.; and —

• some principles may generate enforceable rights, but not systematically, such as general principles governing administrative actions, e.g. consistency, legitimate expectations, etc (European Parliament, 2015, p.1426).

Based on what we noticed previously, not all principles convey the same status in terms of their effects, and in some cases, they do not convey the status of a general principle of EU law. A principle that has been established in the secondary law, but has not received the status of a ‘general principle of EU law’ by the CJEU may be overlooked by the EU legislature (European Parliament, 2015, p.1424). In any case, the right to good administration constitutes a general principle of the EU law.

To sum up, before the ratification of the Charter it fell on the judges’ shoulders to make the final interpretation of the principle of good administration depending on the cases they had before them and the existence of previous decisions. This is reasonable, to some extent, given that the CJEU implements the case-by-case development of principles. Indeed, when the CJEU makes an association with a general principle of EU law, it appears to be a common practice to use very few words, and sometimes the used terms are almost identical. This situation creates a little bit of confusion. For instance, in several rulings, there is a reference to the “principle of good administration” and the “duty of care” (Hofmann, Rowe, and TÜrk, 2011, p.195) or “diligence” (Bousta, 2013, p.481) in the same sentence, while it is extremely hard to draw a clear line between the used terms. Notwithstanding, all the above terms are cardinal even if sometimes they overlap.

3) Council of Europe and the Strasbourg Court

The influence of the Council of Europe in combination with the jurisprudence of the Strasbourg Court on Articles 6 and 13 of the ECHR can be traced in some of the provisions of the Charter, which are related to the good administration aspect.

Also, the Council of Europe had a significant contribution as regards the produced recommendations. Those recommendations are related directly or indirectly to good administration. A few indicative examples are the next ones: a) Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities, b) Recommendation No. R (87) 16 on administrative procedures affecting a large number of persons, c) Recommendation No. R (2000) 10 on codes of conduct for public officials and d) Recommendation No. R (2007) 7 on good administration.

The last mentioned Recommendation No. R (2007) on good administration laid down in Section I the components of the term in detail:

• Article 2 – Principle of lawfulness

• Article 3 – Principle of equality

• Article 4 – Principle of impartiality

• Article 5 – Principle of proportionality

• Article 6 – Principle of legal certainty

• Article 7 – Principle of taking action within a reasonable time limit

• Article 8 – Principle of participation

• Article 9 – Principle of respect for privacy

• Article 10 – Principle of transparency

4) The Ombudsman

The influence of the European Ombudsman on the drafting of Article 41 was rather crucial due to the institution’s role. It is widely known that the Ombudsman’s mission is to promote good administrative practices. In consequence, the decisions of the Ombudsman are revolving around the principle of good administration and how to achieve it, while avoiding cases of maladministration. However, the European Ombudsman is not ‘a judge’, but mostly acts as an intermediary between citizens and the institutions of the EU.

For Ombudsman to intervene, the submission of a complaint is necessary first. If Ombudsman accepts the complaint as a case of maladministration, then inform the institution concerned for addressing the problem and the latter resolves it. When the Ombudsman finds a case of maladministration but the problem is not resolved, the Ombudsman will seek a “friendly solution”, if this is possible. If the friendly solution choice is unsuccessful, Ombudsman may issue a recommendation to the institution, which will explain the necessary steps that are required for the problem’s remedy. If the

institution does not accept the recommendations, the Ombudsman may send a “special report” to the European Parliament. Irrespective of what the response of the institution will be, Ombudsman has to inform the person who submitted the complaint all the way long.

For avoiding any potential misunderstanding, the European Ombudsman cannot investigate:

• Individual EU officials. The Ombudsman investigates possible maladministration by institutions, not the conduct of officials. If presented with a case of alleged harassment, for example, the Ombudsman examines how the institution has dealt with the problem rather than the conduct of the individuals concerned. The Ombudsman’s inquiries do not constitute a disciplinary or pre-disciplinary procedure.

• Complaints against national, regional, or local authorities in the Member States, even when the complaints are about EU matters.

Before the proclamation of the EU Charter of Fundamental Rights (hereinafter, “Charter”), the Ombudsman called for the adoption of a Code of Good Administrative Behavior (hereinafter “Code”). In 1999, the Ombudsman drafted the Code of Good Administrative Behavior, which finally was adopted by the European Parliament in September 2001. This Code constitutes an excellent opportunity to put the principles of good administration into practice in day-to-day work and to provide more efficient and transparent services to the citizens. It also serves as a useful guide for civil servants in their relations with the public. Civil servants, who decide to follow the Code, can avoid any misfortunes while performing their duties and can be sure about the high quality of their services. Some of

the general principles of administrative law set out in the European Code of Good Administrative Behavior are the subsequent (Batalli & Fejzullahu, 2018, p. 31):

a) The principle of legality,

b) The principle of non-discrimination,

c) The principle of proportionality,

d) Absence of abuse of power,

e) Principle of impartiality and independence,

f) Legitimate expectations and consistency,

g) Data Protection,

h) Access to information and documents.

Despite the obvious advantages of the Code, it must be kept in mind that it is not a legally binding document for the EU institutions and bodies with all the problems that this leads to, given that everything is based on the ‘good will’ of the relevant institutions to implement it. At present, aside from the Code, there are various individuals Codes at the EU institutions’ like the one that the Commission designed. Those Codes that enough similarities in terms of content as the European Code of Good Administrative Behavior (Réka, 2018).

5) National Laws

National laws influenced the development of European administrative law, mainly through the transfer of various general principles to the EU law, which in their turn were further used and elaborated by the jurisprudence of the Court of Justice. Without any doubt, the opposite process is also possible, namely several European administrative principles to be infused into the national legal systems for reaching better decisions. This is called by some as “Europeanization of

national administrative law” (Klucka, 2017). The same author proceeds further with his line of argument by suggesting that:

One may claim that current European principles of administrative law not only influence the administrative law of the Member States in areas where they implement Community law based on their own administrative legal rules (so-called indirect Community administration) but also in those areas where national administrative law is applied in a purely national domain of competence. This process of mutual cross-influence favors development that could ultimately sow the initial seeds of a pan-European administrative law. (Klucka, 2017, p.1049).

Before this attainment of a pan-European administrative law, many steps need to be taken before and there must be a greater legal and administrative (and not only) convergence between the different traditions that exist across the countries of the European Union. Concerning administrative convergence, the latter “implies a reduction of the variability and disparities in the administrative agreements” (Pollitt, 2002, pp. 471-492). The opposite view states that Europeanization effort of domestic administrative law has certain limits. As said by Stelkens and Andrijauskaitė (2020):

‘EU administrative law’ does not go beyond the implementation of EU law and has to respect the principle of ‘conferral’ of Article 5 (1) TEU. Consequently, the discussion on the ‘Europeanization’ of the domestic administrative law of EU Member States by EU law is in general a discussion about the existence and (specific) limits of EU competences to carry out activities having a direct or indirect effect on those areas of administrative law of the EU Member States which may be considered as ‘core’, forming the ‘character’ of their administration and the relationship between the national administration and the public. (Stelkensand and Andrijauskaitė, 2020, pp.6-7).

By combining those views, it can be inferred that the Europeanization of the domestic administrative law of EU Member States by EU law is not something that occurs in a ‘single day’, while certain limitations can be traced.

Chapter 2: The Principle of Good Administration in the Greek Legal System

2.1 Introduction to the Greek Administration Milieu

The perennial pathogenies of the Greek public administration have been a ‘brake’ on the development of an effective system, which can satisfactorily and directly serve the citizen and businesses and harmonize with the pace of socio-economic changes and the need to adapt to the changing international and European environment. The country’s inefficient administrative structure further slowed economic and social development, fueling a labyrinthine, bureaucratic, and clientelistic model, which reproduced more problems than it solved. This model was identified with pathogenies such as legal formalism, the absence of management methods, tools, and techniques), the dispersion and waste of structures, people, and resources, the lack of coordination, vision, and strategic directions, the short-term development of public policies, etc.

The most basic manifestations of this inefficient and anti-developmental ecosystem can be identified in the multiplicity and lack of regulatory planning, in the overlapping of responsibilities between public bodies, but also many cases between different units within the same public body, in the establishment of a multitude of mutually negating, labyrinthine administrative procedures, often without a visible reason, combined with the lack of digital systems, infrastructure, and know-how, as well as the will to address weaknesses in a long-term and holistic manner.

In particular, regarding the multiplicity and non-observance of the principles of good legislation, it is observed that the thousands of scattered and fragmentary rules of law, i.e. the applicable legislative and regulatory provisions, not only cause confusion and difficulties in their interpretation and application, burdening the public services

and undermining the administration of justice and the reasonable duration of the trial but, in addition, also wasting the time of the individuals, burdening the institutions and ultimately the economy. The wide dispersion of legislative provisions is accompanied by the lack of mechanisms for gathering systematization and clarification of the legislative material, as well as limited codification.

Furthermore, a particularly vast problem is the labyrinthine and extensive bureaucracy created by the tens of thousands of registered responsibilities and the general regulatory framework of the bodies of the central and decentralized administration and the Local government of the first and second level. This detailed recording, which is done outside of a framework of strategic planning and regulatory programming in combination with the existence of complicated, complex, and non-automated administrative procedures, creates a bureaucratic labyrinth, which works to the detriment of efficiency, good administration, and serving of citizen. At the same time, it contributes to the consolidation of perception at all levels of management, that to be efficient one should be granted “additional powers”, while in reality very few of them lead to practical results.

The quality of a country’s public administration and governance is a key factor in its economic performance and the well-being of its citizens. An efficient public administration serves the needs of citizens and businesses. Public authorities must be able to adapt to changing circumstances. The reform of the public administration and the public sector was an important area of government initiatives during the previous period in the context of the fiscal weakness in which the country found itself, being an institutional condition of the fiscal consolidation and sustainable reconstruction of the state and at the same time constituting a challenge for the increasing its economic activity and productivity.