Administrative Law - Lecture Week 11 PDF

18 November 2024 Sandra Nobrega, PhD [email protected] Procedural Principles of Administrative Law Week 11 General Principles of Administrative Law The tasks and competences of the administration has increased More powers to regulate but...

18 November 2024 Sandra Nobrega, PhD [email protected] Procedural Principles of Administrative Law Week 11 General Principles of Administrative Law The tasks and competences of the administration has increased More powers to regulate but also enjoy greater freedom in exercising these powers The use of public power differs from one field of law to another Tax Law: little discretionary power Land-use plans: more discretionary power General Principles of Administrative Law When taking a decision, the administration: Is bound by the conditions and limits explicitly mentioned in the applicable general rules Has to respect fundamental rights of those affected by the decision, and it must take general principles of administrative law into account General Principles of Administrative Law: Origin Originally, developed in case law Move towards codification European legal systems recognize basically the same general principles of administrative Even though the administration has discretionary power, some legal limits are imposed on the administration in the exercise of its powers. It was especially the need to prevent the abuse of highly discretionary powers that caused the evolution of general principles of administrative law. The function of these principles is to control the administration, to set limits to administrative action, and to provide generally applicable safeguards against the abuse of administrative competences. Backes, C. W., & Eliantonio, M. (2017). Administrative law. In J. Hage, A.Waltermann, & B. Akkerman (Eds.), Introduction to law (2 ed., pp. 201-227), p.210211. Available at: Eliantonio_2017_Administrative_Law.pdf (maastrichtuniversity.nl) Discretionary Power ✓ Discretion refers to a freedom of choice on the part of a decision maker. ✓ Discretion must be exercised by the person to whom it is given and not by anyone else. - "The decision maker has a choice to make; and yet" - "Since it is a discretion, the decision maker is to act responsibly and not arbitrarily" - "Every public power must be exercised responsibly, and every public decision ought to be made reasonably. That means deciding in the public interest, and with respect for the private interests of persons affected by the decision." - "For a public authority to have a discretion means that it is up to that authority to decide what is in the public interest, and to determine what is required by respect for private interests.“ (Endicott T., Administrative Law (4th edition), Oxford University Press, May 2018, p.247)  Flexibility Advantages Government policies may be more effectively implemented Discretion Disadvantages Opens the way for inconsistent decisions May put citizens at mercy of the administrator Can be misused by decision makers Applying the general principles of administrative law protects the rights and interests of individuals against the abuse of public power and against an overemphasis on the general interest when public power is used. Backes, C. W., & Eliantonio, M. (2017). Administrative law. In J. Hage, A.Waltermann, & B. Akkerman (Eds.), Introduction to law (2 ed., pp. 201-227), p.212. Available at: Eliantonio_2017_Administrative_Law.pdf (maastrichtuniversity.nl) General Principles of Administrative Law Procedural Principles (this week) Address the decision-making process and the way in which the interests of individuals are taken into account during this process. Substantive Principles (next week) Substantive principles impose certain requirements on the administration with regard to the content of the decision or measures Procedural Principles: EU level Good administration : Early case law of the CJEU has referred to notions of ‘good’ (Case 32/62), ‘sound’ (Joined Cases 1-57 and 14-57), or ‘proper’ (Case C-255/90 P) administration Recognized as a General Principle of EU Law (Article 6(3) TEU) Recognized as a binding fundamental right (Articles 41 CFR) Good Administration Good administration under Article 6(3) TEU v Good administration under Article 41 CFR (Hofmann, pp. 22-23) Article 41 CFR Article 6(3) TEU Material Scope ‘single case decision- + general acts making’ Addresses of the ‘institutions, bodies, offices + Member States when obligations and agencies of the Union acting within the scope of EU law Good Administration 41 CFR Right to good administration 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes: (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; (c) the obligation of the administration to give reasons for its decisions.  The right to have his or her affairs handled impartially, fairly and within a reasonable time – the duty of care ((Art. 41 (1) CFR) Core feature of the duty of care: “the obligation of the administration impartially and carefully to establish and review the relevant factual and legal elements of a case, prior to making decisions or taking other steps” (Hofmann, p. 25) No arbitrary action, No unjustified preferential treatment and No conflict of interest Fair and within a reasonable time Hearing and Access to One’s File ((Art. 41 (1) a, b) CFR) The right to a fair hearing Before any individual measure (audi alteram partem or audiatur altera pars) Preparation of a hearing requires and access to one’s file Right to be informed Reasoning of decisions (Art. 41 (2)c) CFR) The obligation to provide grounds for the action taken Clear reasoning Allowing the persons concerned to defend their rights Duty to give reasons “I regard the giving of satisfactory reasons for a decision as being the hallmark of good administration.” Why do we they have won or lost need this procedural step? Sir Harry Woolf. Protection of the public: a new challenge. Stevens; 1990, p. 92. 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. Fairness requires that the parties should be left in no doubt why Why do we they have won or lost need this procedural step? Mind concentration - the resulting decision is much more likely to be soundly based on the evidence 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. 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. Duty to give reason 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.” ‘[T]he statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to enable the Court to exercise its supervisory jurisdiction. Case C-269/90 TU München v Hauptzollamt München Mitte ECR I-5469, paras. 14, 26. Transparency of Information Sunshine laws or freedom of information acts exist in most countries making government held information accessible to public; The same acts/laws also govern the exceptions of the main rule. Transparency of information is a re-condition for both a fair and accountable administration and a functioning, participatory democracy Right of Access to Documents – EU Level (1/7) General right of access to documents under Articles 42 CFR and 15(3) TFEU Regulation 1049/2001 issued on the basis of Article 15 TFEU (ex Article 255 TEC) is the general legislation on access to documents.  Right of Access to Documents – EU Level (2/7) European Regulation 1049/2001 on public access to documents Scope (Art. 2) “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”  Right of Access to Documents: EU Level (3/7) “The institutions” covered (Art. 1(a) of Regulation 1049/2001) European Parliament European Commission Council of Ministers  Right of Access to Documents: EU Level (4/7) 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”  Right of Access to Documents: EU Level (5/7) 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”  Right of Access to Documents: EU Level (6/7) Absolute exceptions (Article 4(1) of Reg. 1049/2001) The institutions shall refuse access to a document where disclosure would undermine the protection of: (a) the public interest as regards: - public security, - defence and military matters, - international relations, - the financial, monetary or economic policy of the Community or a Member State; (b) privacy and the integrity of the individual (…)”  Right of Access to Documents: EU Level (7/7) Relative exceptions (Article 4(2) of Reg. 1049/2001) “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.”  References Sir Harry Woolf. Protection of the public: a new challenge. Stevens; 1990, p. 92 Paul Craig, EU Administrative Law (Oxford University Press, 2012) 340-343; Ingrid Opdebeek and Stéphanie de Somer, “Duty to Give Reasons in the European Legal Area: a Mechanism for Transparent and Accountable Administrative Decision Making? A Comparison of Belgian, Dutch, French and EU Administrative Law”, RAP 2016 (2), 99-115, 124-127 Jaskowski M. Administrative Acts of the European Union. Polish Rev. Int'l & Eur. L.. 2017; 6:35. Timothy Endicott, Administrative Law (4th edition), Oxford University Press, May 2018, Chapter 6 30 Week 10 – Procedural Principles  References Anoeska Buijza, The Six Faces of Transparency, Utrecht Law Review, 3, 2013, pp. 8-9 Paul Craig, EU Administrative Law (Oxford University Press, 2012) 356-366 Herwig C.H. Hofmann, “General Principles of EU law and EU administrative law” in: C. Barnard and S. Peers (eds.), European Union Law (OUP 2014) 219-220 (https://orbilu.uni.lu/bitstream/10993/38375/1/chapter_he-9780198789130-chapter-8.pdf) OECD, Good Administration through a Better System of Administrative Procedures, p. 7, available at: (http://sigmaweb.org/publications/Comments_LawAdminProceduresKosovo_JN_Oct2012_En g%20%20.pdf) Bojan Bugaric, "Openness and Transparency in Public Administration: Challenges for Public Law," Wisconsin International Law Journal 22, no. 3 (2004): 483-522 Polonca Kovač, Openness and Transparency in Administrative Procedures as Fundamental European Principles, NISPA Journal of Pubic Administration and Policy, 2016, pp 49-52. (https://content.sciendo.com/configurable/contentpage/journals$002fnispa$002f9$002f2$00 2farticle-p49.xml) 31 Week 10 – Procedural Principles