New publication – U Stelkens and A Andrijauskaitė, Good Administration and the Council of Europe: Law, Principles and Effectiveness (OUP 2020)

Good Administration and the Council of Europe: Law, Principles and Effectiveness is about the effectiveness of the pan-European principles of good administration. For the first time, the notion of good administration was researched within a normative framework that largely slips under the radar in the current European legal scholarship; namely, in the Council of Europe’s (CoE) law, including the case law of the European Court of Human Rights (ECtHR). This was achieved by relying on ‘insider knowledge’ originating from a very wide range of legal systems.

The pan-European principles of good administration, for their part, stand for written and unwritten standards that encapsulate the entire range of general organizational, procedural and substantive legal institutions meant to ensure a democratically legitimized, open and transparent administration respecting the rule of law. Thus, they are about the ‘limiting function’ of administrative law, i.e. its function to protect individuals from arbitrary power, to legitimize administrative action and to combat corruption. Needless to say, even though the need to uphold the concept of good administration was highlighted by the developments as recent as Covid-19 shifting the power to the benefit of the executive, it is in fact a perennial task (even) in the established democracies governed by the rule of law.

This book starts by introducing a great amount of work done by the CoE and the ECtHR in the administrative field to the reader. It continues to map out the scope of the pan-European principles of good administration and their relationship to other ‘neighbouring’ fields, such as EU administrative law and European Human Rights Law. It subsequently spells out their manifold sources and content as well as explains the approach and methods used throughout the book, including the so-called paths of reception enabling the said principles to permeate the domestic legal systems. The introductory part of the book claims, among other things, that these principles are not a loose bundle of various rules in administrative matters but rather forms a coherent whole by building upon each other and by different CoE bodies invoking them in a harmonious and coherent manner.

The book then comprises of 28 country reports dedicated to an in-depth exploration of the impact and potential of these standards on the national administrative fabric of the CoE Member States written by respective experts of these systems. Namely, the readers can get acquainted with the British, Belgian, French, Italian, Dutch, Norwegian, Swedish, Turkish, German, Austrian, Swiss, Portuguese, Spanish, Finish, Hungarian, Polish, Bulgarian, Estonian, Lithuanian, Slovenian, Czech, Romanian, Latvian, Albanian, Croatian, Georgian, Armenian, and Serbian perspectives.

The main aspiration of the book was to elucidate if and to what extent the said principles developed by the CoE and the ECtHR shape national administrative legal systems and whether this development results in a certain harmonizing effect across its Member States. In order to answer this question, a robust bottom-up research design has been created and refined by the contributors of the book themselves. National experts had to measure the level of ‘embeddedness’ of CoE law in the administrative domains of their respective countries by following a questionnaire prepared for this purpose, among other things. The said questionnaire resulted in a certain level of comparability in structure of the national reports that enabled us to draw conclusions at the end.

More precisely, each of the country report tackles (at least) the level of awareness of the CoE law in administrative matters and its status in national law, the role of the CoE conventions dealing with transversal issues (namely, the European Charter of Local Self-Government and its Additional Protocol, the Convention on Protection of Individuals with regard to Automatic Processing of Personal Data and the Convention on Access to Official Documents). The chapters then go through the pathways of reception and discuss their actual implications on the national legal systems, i.e. the reception of the pan-European general principles of good administration through the national legislator, through the application of the European Convention, through direct application ‘faute de mieux’ or by promulgation of ‘codes of good administrative behaviour’ and other soft-law tools. Each chapter ends with an assessment of the actual impact on the pan-European general principles of good administration on national administrative law or the (relative) lack thereof.

The book is crowned with the chapter that synthetizes some of the most interesting findings from the national reports and evaluates their possible ramifications. In this chapter, the overall assessment entailing differences and peculiarities of the pan-European principles of good administration together with their modes of operation – transposition, implementation and enforcement – in particular national legal systems are given. The chapter also includes an original conceptualization of these principles as ‘regional international law’ consisting of what is termed as ‘building blocks’ as well as the presentation of further research desiderata.

The final chapter argues that the pan-European general principles of good administration lead to a certain harmonization of the legal orders of the CoE Member States with regard to the limiting function of administrative law despite the many fundamental differences between their administrative and legal systems. However, this harmonization is still very much a process which is at different stages of development in the different Member States. The chapter comes to the further conclusion that the pan-European general principles of good administration can be considered as a concretisation of the founding values of the CoE and, thus, describe the ‘administrative law obligations’ a Member State enters into when joining the CoE.

This concretization – yet again – has come to fruition at variable rate of success with the attendant promising approaches, failures and backlashes. The receptivity towards the pan-European general principles of good administration lets the broad classification of the surveyed legal systems into the old member states and the so-called ‘transition countries’. In the first category of countries, the said principles were already existent at their inception as meta-concepts since national administrative legal systems were mostly self-contained and hence influenced the CoE level from below. In the second category, the reverse trend is discernible – the pan-European principles were extraneous sources helping to consolidate democracy, rule of law and the protection of individual rights above all by enhancing the limiting function of administrative law in challenging circumstances that these countries have faced. They were to a variable degree but largely effective in these states and continue to give guidance as to how to develop an administrative legal framework.

The book reveals further that ‘true’ respect for pan-European general principles of good administration is only possible by transposing, implementing and enforcing a sufficient (minimum) number of them in different ‘specifications’ and ‘flexible combinations’. Only then can national administrative law provide for checks, limits and balances of the powers of administration from different sides so that the ‘administrative law component’ of the founding values of the CoE is effectively put in place by creating and ensuring a democratically legitimized, open and transparent administration respecting the rule of law.

The different pan-European general principles of good administration with their different ‘specifications’ (i.e. civil service, local self-government, individual rights, administrative procedure, administrative justice, transparency, etc.) are the different building blocks (of varying shapes, sizes and functions) which may be used and combined to construct the legal framework. However, they can be used in different combinations to build the system.

The book concludes with the call for a deeper exploration of the background, the function and the meaning of these principles, and the experiences which have led to their adoption. It proposes to organize the different pan-European general principles of good administration with regard to their ‘specification’ into a framework consisting of issues such as administrative organisation, the status of civil servants and public employees, administration and law, legal certainty and the protection of legitimate expectations, administrative decision making, administrative procedures and procedural rights, administrative sanctions, (local) public services and the rights of their users, freedom of information, transparency and data protection, administrative justice and administrative oversight, state liability. This framework could be filled in like a textbook, with the different sources of the pan-European general principles of administrative law illustrated with the preparatory works done within the CoE, the case law of the ECtHR on the ‘principles of good governance’, and the work of its other bodies, as well as with ‘good’ cases from the courts of the CoE Member States and relevant national scholarship.

This book is the result of more than three years of research. Its main part was conducted from the end of 2016 into the start of 2020. The project was based at the German University of Administrative Sciences Speyer as well as at the German Research Institute for Public Administration in Speyer, Germany. During this period, the contributors of the book had the opportunity to meet at two workshops wherein they have worked out methodological issues and exchanged their ideas regarding the project as well as insights on national administrative law. The research was funded by the German Research Foundation (Grant No. 274964159).

Posted by Ulrich Stelkens and Agnė Andrijauskaitė (FÖV Speyer)