Lecture 7-12: International Law PDF

Week 7 → The Reception of International Law in Domestic Legal Orders 1. Differences Between International and Domestic Legal Systems Lack of Central Authority: Unlike domestic systems, the international legal system does not have a central governing authority or a legislative body....

Week 7 → The Reception of International Law in Domestic Legal Orders 1. Differences Between International and Domestic Legal Systems Lack of Central Authority: Unlike domestic systems, the international legal system does not have a central governing authority or a legislative body. Sovereignty of States: States are the main subjects of international law. They are independent, sovereign, and equal, with significant freedom of action. The legal functions are decentralized, and states create international rules through treaties or contribute to customary law formation. No Global Government or Law Enforcement: There is no international government or executive body with full powers to enforce laws globally. The United Nations Security Council may have some limited enforcement powers, but there is no international police force. No System of Courts with Compulsory Jurisdiction: The International Court of Justice (ICJ) and other international courts can only exercise jurisdiction if states consent to it. 2. Monism vs. Dualism Monism: ○ Single Legal System: Monism treats international law and domestic law as part of a single legal system. It does not require the transformation of international law into domestic law for it to be applicable. ○ Supremacy of International Law: In modern monist theory (Hans Kelsen, 20th century), international law is superior to domestic law. If a conflict arises, international law prevails. ○ Direct Application: In monist systems, international treaties and customary laws can be directly applied without any transformation or incorporation into national law. Dualism: ○ Separate Legal Systems: Dualism treats international law and domestic law as distinct systems that operate independently of each other. This theory was developed in the early 20th century (Triepel, Anzilotti). ○ Different Subjects and Sources: International law addresses states and international entities, while domestic law primarily governs individuals. International law stems from treaties and customs, while domestic law arises from statutes and court decisions. ○ Transformation Requirement: International law must be translated into national legislation to take effect. Domestic legal systems are not automatically bound by international law unless a country’s legislative body incorporates it. ○ Today’s Dualism: Modern dualism no longer holds entirely because some international norms (e.g., international crimes, human rights) can address individuals directly, even if not transformed into domestic law. 3. Application of International Law in Domestic Systems Self-Executing Norms: ○ These norms are provisions in treaties that can be directly applied by domestic courts without the need for further legislation because they are specific enough to provide remedies. ○ Such norms are sometimes called “norms of direct effect.” ○ However, whether international norms are self-executing depends largely on a country's domestic legal framework. Non-Self-Executing Norms: ○ Require additional steps such as the adoption of new national laws or administrative regulations to ensure that domestic law complies with international obligations. ○ International law usually focuses on the result, leaving it up to states to determine how they implement obligations in practice. 4. Compliance and Enforcement Enforcement: Mechanisms designed to enforce international law, even against the will of a state or international organization. Dispute Settlement: Involves processes agreed upon by states to resolve a legal dispute and enable the application of international law. Types of Enforcement Mechanisms: ○ Decentralized: Enforcement relies on individual states (e.g., countermeasures). ○ Institutionalized: Involves international organizations or judicial bodies with enforcement powers. ○ Non-Coercive Mechanisms: Include diplomatic efforts or moral persuasion to ensure compliance. ○ Coercive Mechanisms: Include sanctions, countermeasures, and in rare cases, the use of force (e.g., in self-defense or under UN Security Council authorization). Dispute Settlement Process: ○ Disputes in international law arise when two or more states hold opposite views on the performance of legal obligations. ○ ICJ Definition: A dispute exists when states have opposing views on a legal matter, as defined by cases such as Mavromatis Palestine Concessions (1924) and South West Africa (1966). ○ Legal vs. Political Disputes: Legal disputes are resolved through the application of legal norms, while political disputes may not be justiciable. 5. The United Nations and Peaceful Settlement of Disputes  UN Charter: ○ Article 2(3): Obligates states to settle international disputes by peaceful means without endangering international peace and security. ○ Chapter VI: Outlines specific obligations and methods for peaceful settlement of disputes, including negotiation, mediation, arbitration, and judicial settlement. ○ Articles 33-38: Detail the UN’s role in promoting the peaceful resolution of disputes through fact-finding, mediation, and recommendations to the parties. ○ Chapter VIII: Provides for regional arrangements and agencies to assist in peaceful dispute resolution, such as the African Union or European Union. Pacific Settlement of Disputes: This principle underpins the prohibition of force in resolving international conflicts. While peaceful settlement is required, there is no obligation to settle disputes, only to try peaceful methods if attempted. 6. Diplomatic Methods of Dispute Settlement Negotiation: ○ The most common method of resolving disputes directly between the states involved, without third-party intervention. ○ Sometimes required by treaties or agreements to at least attempt a negotiated settlement. Good Offices and Mediation: ○ Good Offices: A third party (individuals, states, or international organizations) facilitates communication between disputing states but does not actively participate in negotiations. ○ Mediation: Involves a more active role by a mediator, who helps the parties reach terms acceptable to both sides. Inquiry: ○ Used to settle disputes involving questions of fact. It may involve setting up commissions or fact-finding bodies to establish the facts of a dispute. Conciliation: ○ A process where a commission examines the dispute impartially and proposes non-binding terms for a settlement. This method is less frequently used due to its lack of binding power and slower, more complex nature. 7. Legal Methods of Dispute Settlement Arbitration: ○ One of the oldest legal methods for resolving disputes. Arbitrators are chosen by the parties, and the process is designed to be flexible and ad hoc. ○ Arbitral decisions are binding on the parties involved. ○ The Permanent Court of Arbitration, established by the 1899 Hague Convention, provides administrative support for arbitration. International Court of Justice (ICJ):  ○ The principal judicial organ of the United Nations, located in The Hague. ○ The ICJ has two main roles: 1. To settle legal disputes between states. 2. To provide advisory opinions on legal questions referred to it by UN organs. ○ Decisions of the ICJ are binding on the states that submit to its jurisdiction. Other Courts and Tribunals: ○ The International Tribunal for the Law of the Sea (ITLOS) handles disputes related to maritime law under the United Nations Convention on the Law of the Sea (UNCLOS). ○ The WTO’s Dispute Settlement Understanding (DSU) handles disputes related to trade law. ○ International investment tribunals settle disputes between foreign investors and host states. ○ Human rights tribunals hear individual complaints and inter-state disputes related to human rights violations. Week 8 → Responsibility of states and sanctions HOW TO DETERMINE RESPONSIBILITY Subjective Element: Attribution: Organs of the State (Art. 4): ○ Includes legislative, executive, judicial, and other functions, irrespective of position or authority. ○ Even ultra vires acts (beyond authority) are attributable. Persons/entities exercising governmental authority (Art. 5, 9): ○ Those not formally state organs but empowered by the state or acting in the absence of state authority. Organs placed at the disposal of a state by another state (Art. 6): ○ Temporary actions of borrowed organs performing governmental functions. Insurrectional movements (Art. 10): ○ When such movements come to power. Conduct controlled/adopted by the state (Arts. 8, 11): ○ Actions carried out under the state's instructions or later acknowledged/adopted by the state. Objective Element: The Breach: Binding obligation: The obligation must be binding at the time of the breach. No minimum gravity: No threshold for the severity of the breach, but severity influences consequences. Types of breaches: ○ Actions (e.g., Nuclear Tests, New Zealand v. France). ○ Omissions (e.g., Gabcikovo-Nagymaros Project, Hungary v. Slovakia). ○ Failure to prevent harm (Bosnia-Herzegovina v. Serbia and Montenegro).  ○ Endorsements of wrongful conduct (US v. Iran, 1980). CIRCUMSTANCES PRECLUDING WRONGFULNESS Six exceptions where wrongful conduct is justified: 1. Consent (Art. 20): Valid consent, limited in scope. Cases where it has been analyzed by the ICJ: Corfu Chanel 1948 Nicaragua v. USA 1986 1. Self-Defense (Art. 21): Armed attack required, adhering to necessity, immediacy, and proportionality. Conditions: Necessity, immediacy proporcionality 1. Countermeasures (Arts. 22, 49-54): Non-punitive measures taken by the injured state. 2. Force Majeure (Art. 23): Uncontrollable events, provided the state did not cause the situation. Conditions The conduct of the state has not caused or helped cause the situation The State has not assumed a risk Example: catastrophes, wars, revolutions, etc. 1. Distress (Art. 24): Acts to save lives, without causing greater harm. Conditions His/Her conduct has not caused or helped cause the situation The act won’t create a comparable or grater peril Example: aircraft commander 1. Necessity (Art. 25): To safeguard an essential interest, with strict conditions. Conditions: Is “the only way” to safeguard that essential interest Doesn’t seriously affect an essential interest of the one who suffer the harm The state did not contribute to the situation The obligation do not exclude Important Note: These exceptions annul wrongfulness but do not eliminate the obligation to compensate for damages (Art. 27). CONSEQUENCES OF INTERNATIONAL RESPONSIBILITY 1. New juridical relation: The original obligation persists, while new obligations arise: ○ Cease the wrongful act (Art. 30(a)). ○ Provide guarantees of non-repetition (Art. 30(b)). ○ Reparations: restitution (Art. 35), compensation (Art. 36), satisfaction (Art. 37). 2. Breach of obligations: ○ Singular or collective obligations. ○ Erga omnes obligations. Invocation of Responsibility: Injured states and other states can invoke responsibility for breaches involving erga omnes obligations (Art. 48). MEASURES FOR COMPLIANCE Decentralized measures: Countermeasures by states (Arts. 49-54). ○ Limited to inducing compliance, must be proportional and reversible. Institutionalized sanctions: Require structures (e.g., international organizations) and provisions within treaties. UN CHARTER Article 41: Security Council measures (non-military), e.g., economic/diplomatic sanctions. Article 42: Use of armed force if measures under Article 41 are inadequate. Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self- defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. TYPES OF INTERNATIONAL OBLIGATIONS 1. Erga omnes: Obligations owed to the international community. 2. Erga omnes partes: Obligations owed to a group of states. 3. Erga singulum: Reciprocal obligations between two states. EXAMPLES OF CASES ICJ Cases: ○ Nicaragua v. USA (1986): Support for Contras. ○ Gabcikovo-Nagymaros Project (1997): Environmental and treaty violations. ○ Genocide in Srebrenica (2007). Other examples: ○ Rainbow Warrior (France v. New Zealand): Treaty violations and reparations. ○ Srebrenica: UN responsibility in protected zones. ○ Powell & Rayner v. UK: Aircraft noise and property rights. Judgement Concering Germany 31/10/23 In the case of Bild GmbH & Co. KG v. Germany, the Court held that there had been a violation of the freedom of expression. The case concerned a court ruling ordering bild.de, a major news website, to take down CCTV footage of a police arrest at a nightclub in Bremenunless it blurred the face of one of the police officers involved. The Court found that the reasoning of the German courts as regards the use of the footage had been insufficient, and that the reasoning could lead to an unacceptable ban on any future publication, without the consent ofthe individuals concerned, of unedited images of police officers performing their duties. Additional articles Article 54 → Measures taken by States other than an injured State This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached. Article 48 → Invocation of responsibility by a State other than an injured State 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a  collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. Article 55 → Lex specialis Article 56 → Question not regulated by the draft Week 9 → International court of justice 1. International Courts and Tribunals: General Issues General features Part of the peaceful settlement mechanisms under Article VI of the UN Charter Only inter-state tribunal with general jurisdiction Only UN body situated outside the geographic spheres of influence (“principal judicial organ of the UN”) Great influence on clarification/development of public international law (“organ of public international law”) Organisation 15 Judges Elected by the General Assembly and the Security Council from the PCA list (Art. 4 St) Up to 2 Judges ad hoc (Art. 31 St) Representative of the “main forms of civilization and the principal legal systems of the world” 9 years with re-election President and Vice-President elected for three years (Art. 21 St) Incompatibilities (Arts. 16 and 17 St / 24 St) Registry → Procedure: United Nations Charter Statute of the court Rules of court Resolution concering the judicial practice of the court Practice Directions 2. ICJ: Jurisduction of the court/ Admissibility Article 38: International conventions International custom General principles of law recognized by‘civilized nations’ Judicial decisions and the teachings of the most highly qualified publicists (subsidiary means) Jurisdiction Ratione Personae Only States: Art. 34.1 St → Reference to general international law → States Parties to the UN (difficult cases) → States appear on behalf of individuals It is possible for individuals to get involved in the cases Article 34.2/3 St: participation of IOs Jurisdiction Ratione Consensus Principle of consent: Art. 36.1 St “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force” Strict principle: the importance of a norm does not give the Court jurisdiction (East Timor, 1996) Impossibility for third States to participate in proceedings (Monetary Gold principle) Lack of formalism: → Treaties for the peaceful settlement of disputes Art. 2 Pact of Bogotá: “The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty” (Bolivia v Chile, 2015). Jurisdiction RationeConsensus. Compromissory clauses Disputes concerning the “interpretation and application” of a Treaty Renvoie to the provisions of the Treaty + certain additional questions Declarations → article 26.2 Where it started: During the creation of the Permanent Court of International Justice (PCIJ), countries couldn’t agree to make the court’s jurisdiction mandatory for everyone. So, the "optional clause" was added, letting countries decide if they want to accept the court’s jurisdiction. Mutual agreement: A country accepts the ICJ’s jurisdiction only if the other country involved in the dispute has also accepted it. Think of it as a mutual promise to let the court decide. When it's valid: The declarations accepting jurisdiction must still be valid when one country brings a case to the ICJ. If they are, countries can use this rule to file "surprise cases" if they spot a loophole in timing or obligations (e.g., the Right of Passage case or Cameroon v. Nigeria).  Reservations: Countries often attach "reservations" or limits when accepting ICJ jurisdiction. These reservations are like rules saying, "We accept jurisdiction, but not for certain types of disputes." This creates a situation where the court's power depends on the lowest level of agreement between the countries. Jurisdiction Ratione Materiae how it mentioned in the slides Jurisdiction Ratione Materiae ○ Dispute: “a disagreement on a question of law or of fact, a conflict of legal opinions or of interests between two persons” (Mavrommatis, 1923) ○ ‘A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence … It must be shown that the claim of one party is positively opposed by the other’ (South West Africa (Preliminary objections) → ‘t]he function of the concept … is to express in a legally discrete term the matter in connection with which the Court is empowered to make a judicial decision …’ (Rosenne) This refers to the type of issues or disputes that a court, like the International Court of Justice (ICJ), is allowed to handle. The court can only deal with cases that fall within the kinds of disputes it is authorized to decide. What is a "dispute"? A dispute is more than just a disagreement. It’s a situation where: ○ One side makes a legal claim. ○ The other side clearly opposes it. Example: In the Mavrommatis case (1923), the court explained that a dispute involves a conflict of legal views or interests between two parties. Proof of a dispute: Simply saying “there is a dispute” isn’t enough to prove it exists. The complaining party must show that their claim is directly and actively rejected by the other side (South West Africa case). If one side says “this is my right” and the other side responds with “no, it’s not,” that’s a clear dispute. Ratione Materiae is about making sure the court only deals with proper legal conflicts where two parties disagree in a clear and legal way. Case law Nicaragua v United States (collective self- defence) → Third parties: Honduras and El Salvador Nauru v Australia (Tripartite commission responsible for management of phosphate mines in Nauru) → Third parties: UK and New Zealand  The Rule from Another Case (Monetary Gold): ○ In that case, the court said it couldn’t make a decision because it would need to judge a third country (Albania) that wasn’t part of the case. ○ The court can’t decide about a country if that country isn’t there to defend itself. Why This Case is Different: ○ In Nauru’s case, the court doesn’t need to decide anything directly about New Zealand or the UK to judge Australia’s responsibility. ○ Even if the decision affects New Zealand and the UK indirectly, the court can still go ahead because they’re not the main focus. 💡 The court can decide the case because it’s only about Nauru and Australia, and it doesn’t need to rule on New Zealand or the UK to make its decision. Portugal v Australia (East Timor Case) (breach of self-determination of East Timor as a result of the conclusion of a treaty in respect to exploration of oil and gass off the coast of East-Timor) → Third party: Indonesia 3. Procedure in contentious I. Application States as parties Application or written notification of the special agreement The Application shall specificy as far as posible: → Legal grounds of jurisdiction → Nature of the claim → Statement of facts II. Written preceedings Blend between the continental system and the Anglo- American common law system One/two rounds of pleadings (Art. 43.2 St ‘if necessary’). Deadlines: agreed with the Parties No word-limits After the closure of the written proceedings, no document may be submitted by either party (Art. 56 RoC) III. Incidental preceedings 1. preliminary objections 2. Provisional measures 3. Intervention (Third state) 4. Special refenerce to the court Article 36: “IN THE EVENT OF A DISPUTE AS TO WHETHER THE COURT HAS JURISDICTION, THE MATTER SHALL BE SETTLED BY THE DECISION OF THE COURT” → If there is a disagreement about whether the court has the authority to hear a case, the court itself will decide if it has the power to handle the dispute. 1. Preliminary objections Jurisdiction Admissibility Lack of legal effects of the decision (Marshall Islands Cases in the relation to negotiations on a multilateral issue). 2. Provisional measures Article 41: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” Explanation It gives the International Court of Justice (ICJ) the power to order temporary measures (like urgent actions or restrictions) to protect the rights of either party involved in a dispute while the case is still ongoing. Key Points About Provisional Measures: 1. When Are Provisional Measures Used? ○ When there's an urgent need to prevent serious harm or protect rights before the court reaches a final decision. 2. Conditions for Provisional Measures: ○ Prima facie jurisdiction: The court must have a basic reason to think it has the authority to decide the case. ○ Plausibility: The rights being claimed by the requesting party should seem reasonable and possible to prove (but the court doesn’t decide fully at this stage). Example: In Ukraine v. Russia, the ICJ said it only needs to check if Ukraine’s claims are reasonable enough to consider. ○ Risk of irreparable harm: There’s a danger that rights could be permanently damaged if no action is taken. ○ Urgency: The risk must be real and happening soon. ○ Connection to the case: The requested measures must be directly linked to the rights being protected. 3. Examples of Provisional Measures: ○ Myanmar: Prevent acts of genocide. ○ India and Pakistan: Stop the execution of a prisoner (Mr. Jadhav). ○ Border disputes: Both parties must stop sending military or police forces to the disputed area. 4. Who Gets Informed?  ○ The ICJ immediately tells the parties involved and the UN Security Council about the measures. 3. Interventation (Third States) Article 62 Interest of a legal nature Which may be affected by the decision Judgment binding on the third party Article 63 Construction of a Convention (notification) Right to intervene in proceedings Judgment binding on the third party 4. Counter claims Article 80: “The Court may entertain a counterclaim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party” A counter-claim is when the person being sued (the respondent) turns around and files a new claim against the person who sued them (the applicant) in the same case. To be valid, the counter-claim must: 1. Be about the same facts (same event, place, or time). 2. Use related legal rules or principles. The court decides whether to accept the counter-claim and must have the power to handle both claims. IV. Procedure deliberation “The decision of the Court has no binding force except between the parties and in respect of that particular case”. → In practice, the Court deals with its previous decisions as precedents (the Court will not depart unless there are reasons. Marshall Islands vs South West Africa) Implementation Art. 94 UNCh: obligation to comply (art. 94.2: UNSC) Often requires subsequent steps (demarcation, negotiations on reparations) Means of enforcement to be decided by each party (Avena, Jadhav) Willing/unwilling parties Week 10 - introduction administrative law Instruments and Powers at the disposal of Public Administration The administration serves the public interest The legislator empowers the administrative body How the administration can effective its policies? Juridical acts Factual acts Competences Public Law Private Law Public Law v Private Law Public Law: Focus: Manages political power, its structural organization, and interactions with citizens. Private Law: Focus: Governs relationships between individuals and private entities, covering areas like contracts, property, and family matters. Public law: constitutional and administrative law Constitutional Law: Defines the state's structure, fundamental rights, and core values. Significance: Expanded beyond traditional public law during the 20th century. Administrative Law: → Purpose: Implements and enforces constitutional frameworks and principles Administration Within the Trias Politica The construction of a new power plant in an industrial area 1. Legislator Requirements for environmental and construction permission – Environmental Law 1. Administration Application of the prescribed procedure by law (decision- making) If the permit is issued, the administration will also monitor the operation of the power plant 1. Judiciary The courts can check whether the executive remains within the limits imposed by law. Public administration Civil servant employment Legal guarantees of civil service employment: Life tenure absent grave misconduct Merit-based recruitment  Promotion based on a mixture of seniority and merit Pay scales and benefits that are more standardized than in private enterprise Public Management reforms: terms of public sector employment more flexible and closer to performance indicators Privatization Administrative Law has been seen as: Designed to a unique administrative system A body of law on its own Therefore, there would be no need to look outside ( no comparison or transplant) Today Comparative Administrative Law is recognized in legal scholarship and practice European administrative law set of rules that ensures governments in Europe and the EU act fairly, legally, and protect citizens' rights when making decisions. Several layers of administrative authorities within a national State. Jointly by European and national authorities → Food Safety → Traffic safety → Designation of nature reserve Direct administration → EU law is adopted and excuted at EU level Indirect administration → EU law is executed through the national administrations Global administrative law the system of rules and practices that regulates how international organizations and global institutions make decisions, ensuring they are fair, transparent, and accountable. Address the consequences of globalized interdependence Transgovernmental regulation and administration Which areas needs this type of regulation? Environmental protection Law enforcement Trade in product and services Intellectual Property Labour Standards “The notion of an accountability deficit is particularly associated with the absence of political control by democratically elected political representatives (where it is linked with a democracy deficit).” Week 11 - Procedural principles of administrative law General Principles of Administrative Law The scope and competence of administrative tasks have expanded. Administrations are granted more regulatory powers and enjoy greater discretionary freedom, which varies across fields of law: 1. Tax Law: Limited discretionary power. 2. Land-Use Plans: Broader discretionary power. Key considerations when making administrative decisions: 1. Compliance with specified conditions and limits in applicable general rules. 2. Respect for fundamental rights of affected individuals. 3. Adherence to general principles of administrative law. Origin of General Principles of Administrative Law Initially developed through case law, with subsequent moves toward codification. These principles, recognized across European legal systems, aim to control administrative power, limit abuses, and provide safeguards. Discretionary Power Refers to decision-makers' freedom of choice. Must be exercised responsibly, without arbitrariness, and in the public interest, respecting private interests. Even though the administration has discretionary power, some legal limits are imposed on the administration in the exercise of its powers. Advantages: Flexibility in decision-making. Effective implementation of government policies. Disadvantages: Risk of misuse. Potential inconsistency and arbitrary outcomes. The application of these principles protects individual rights and ensures balance between public and private interests. Procedural and Substantive Principles Procedural Principles:  ○ Concern decision-making processes, emphasizing fairness and individual consideration. Substantive Principles (covered in the subsequent session): ○ Focus on the content and validity of administrative decisions. Procedural Principles at the EU Level Early case law by the Court of Justice of the European Union (CJEU) emphasized "good," "sound," or "proper" administration. "Good administration" is a recognized general principle of EU law under Article 6(3) TEU and a fundamental right under Article 41 CFR. Good Administration Article 41 CFR outlines rights including: ○ Handling of individual affairs impartially, fairly, and within reasonable timeframes. ○ The right to be heard before adverse measures are taken. ○ Access to personal files while respecting confidentiality. ○ Clear reasoning for administrative decisions. Duty of Care: ○ Administrations must establish and evaluate all legal and factual elements before making decisions. ○ Prohibits arbitrary action, unjust preferential treatment, and conflicts of interest. Key Procedural Rights 1. Fair Hearing (Article 41(1)(a), CFR): ○ Individuals must be heard before adverse decisions. ○ Ensures access to relevant files for preparation. 2. Reasoning for Decisions (Article 41(2)(c), CFR): ○ Obligates clear explanation of decisions to help individuals understand outcomes and defend their rights. ○ Promotes fairness and encourages sound decision-making by administrators. Transparency and Access to Documents Transparency is fundamental for accountability and democracy, supported by: ○ Freedom of information laws. ○ Regulation 1049/2001 under Articles 42 CFR and 15(3) TFEU governs access to EU documents. Key Aspects: ○ Access extends to documents of institutions like the European Parliament, European Commission, and Council of Ministers.  ○ Defined broadly to include written, electronic, sound, visual, or audiovisual media. ○ Exceptions include protection of: Public interest (security, defense, international relations, monetary policies). Privacy and integrity. Commercial interests and legal advice, unless public interest justifies disclosure. Duty to give reasons The giving of reasons is a procedural step that informs people affected by a decision (and, potentially, the public) of the substance of a decision. What are the reasons to give reasons? From the perspective of the affected parties: parties can know the reasons which motivated the decision-maker. From the decision-maker perspective: it ensures that the decision-makers will carefully think about the reasons for taking a decision and justifying them. Article 296 TFEU “Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.” Right to access to documents All documents held by an institution, drawn up or received by it and in its possession, in all areas of activity of the European Union” The institutions” covered (Art. 1(a) of Regulation 1049/2001) European Parliament European Commission Council of Ministers → Meaning of “document” (Article 3(a) Regulation 1049/2001) “any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility” → Beneficiaries (Article 2(1) of Reg. 1049/2001) “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in the present Regulation” The institutions shall refuse access to a document where disclosure would undermine the protection of: commercial interests of a natural or legal person, including intellectual property, court proceedings and legal advice, the purpose of inspections, investigations and audits, Unless there is an overriding public interest in disclosure.” Week 12 - Substantive principles Substantive Principles: motivation Need to challenge incorrect, unjust, or unreasonable governmental decisions The decision-makers need to understand the limits of governmental powers → Public administration must respect the purposes and limits set down in laws— generally passed by parliaments, but also, in some places executive decrees—or turn into the arbitrary action of tyrannical despots. The task of courts is to enforce those limits. What is the rule of law? Is a fundamental principle that ensures all individuals, institutions, and government entities are subject to and accountable under the law. It emphasizes that laws must be clear, publicly known, fairly applied, and consistently enforced, protecting individual rights and preventing arbitrary use of power. It upholds equality before the law and ensures justice through independent and impartial courts. Common element to European Systems: the administration is, at all times, bound by the law. The allocation and execution of powers are regulated by law The administration must refrain from violating the law, including the basic rights of individuals “ Sovereignty lies with the people, and governments have only the powers given to them There should therefore be legal limits on government actions Governments should only be able to act where it has the legal power to do so Stems all the way down to basic administrative decisions. Legality Principle → the administration’s competence to act must have a basis in legislation The legislature provides the necessary instruments to the administration Legislation also sets the limits of the powers conferred upon the administration Legal certainty is a fundamental concept in administrative and legal systems, ensuring predictability, stability, and clarity in the application of laws and administrative decisions. It is a cornerstone of the rule of law and has several key elements: 1. Clarity and Precision: Laws and administrative decisions must be clearly written and communicated so that individuals can understand their rights and obligations. 2. Non-Retroactivity: Laws or administrative decisions should not have retroactive effects unless explicitly stated and justified, ensuring that individuals are not unfairly penalized for actions that were lawful when performed. “Legislative acts shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.” → People needs to know what are the legal consequences of their actions 1. Protection of Legitimate Expectations: ○ Individuals and entities should be able to rely on the stability and consistency of legal rules and administrative practices. ○ When public authorities make promises or establish consistent practices, individuals can expect those to be honored unless overriding public interests justify a change. Rule of law - EU Revocation of acts Lawful Acts: in principle not be revoked Unlawful Acts: “permissible provided that the withdrawal occurs within a reasonable time and provided that the institution from which it emanates has had sufficient regard to how far the applicant might have been led to rely on the lawfulness of the measure” → Explanation 1. Within a reasonable time: The withdrawal should happen soon enough after the decision was made, not after an unnecessarily long delay. 2. Considering the applicant’s reliance: Before withdrawing, the authority must think about how much the person affected trusted or acted based on the original decision. If the person made plans or took steps assuming the decision was valid, this reliance should be carefully considered. In short, it’s about being fair to the person affected while allowing authorities to correct decisions within a sensible timeframe.