THE TEXT BELOW IS AN EXCERPT OF A STUDY ACCESSIBLE HERE
Nota Bene: Upon request by the European Parliament JURI Committee this in-depth analysis explains what general principles of EU administrative procedural law are, and how they can be formulated in the recitals of a Regulation on EU administrative procedure.
Authors: Diana-Urania Galetta, Professor of Administrative Law and European Administrative Law, University of Milan, , Herwig C. H. Hofmann, Professor of European and Transnational Public Law, Jean Monnet Chair, University of Luxembourg, Oriol Mir Puigpelat, Professor of Administrative Law, University of Barcelona and Jacques Ziller, Professor of EU law, University of Pavia
EXECUTIVE SUMMARY : Background
The Committee on Legal Affairs of the European Parliament has requested an In-depth Analysis on “The general principles of EU administrative procedural law”. The In-depth Analysis is intended to be presented at a meeting of the Working Group on Administrative Law.
. The Analysis puts forward drafting proposals for the general principles of EU administrative procedural law to be included in the Recitals of a draft Regulation on EU Administrative procedures. More specifically, the Analysis tries to clarify the content of the general principles of EU administrative procedural law and suggest the most accurate formulation for the corresponding recitals.
The following general principles, which are related to the Right to good administration embedded in Article 41 Charter, to the principle of an open, efficient and independent European administration enunciated in Article 298 TFEU are translated into recitals: 1 Access to information and access to documents; Access to the file ; Duty of care; Data protection; Data quality; Effective remedy; Equal treatment and non-discrimination; Fair hearing; Fairness; Good administration; Impartiality; Legal certainty; Legality; Legitimate expectations; Participatory democracy; Proportionality; Reason giving; Rule of Law; Timeliness; Transparency.
2.2. Structure and wording of recitals
Which general principles of EU law need to be referred to in the recitals of an EU regulation on Administrative Procedures depends on the content of the substantive provisions of the regulation. The purpose of establishing an EU regulation on administrative procedures is to improve the quality of the EU’s legal system by fostering compliance with the general principles of EU law in the reality of fragmentation between sector-specific procedures and the reality of the multi-jurisdictional nature and pluralisation of actors involved in the implementation of EU policies.
Fragmentation has often resulted in a lack of transparency, predictability, intelligibility and trust in EU administrative and regulatory procedures and their outcome, especially from the point of view of citizens.
A codification of administrative procedures can contribute to simplifying the legal system of the Union, enhancing legal certainty, filling gaps in the legal system and thereby ideally contributing to compliance with the rule of law. Overall, it can be expected that establishing enforceable rights of individuals in procedures that affect them, contributes to compliance with principles of due process and fosters procedural justice.
Adopting such a regulation further has the potential to contribute not only to the clarity of the legal rights and obligations of individuals and participating institutions, offices, bodies and agencies, but also to the transparency and effectiveness of the legal system as a whole. An EU Regulation on Administrative Procedures has the potential to contribute to the objectives of clarification of rights and obligations. It also contributes to simplification of EU law by ensuring that procedures can follow one single rule-book and better regulation by allowing to improve the overall legislative quality.
The recitals of an EU regulation on administrative procedures will therefore contain various principles of EU law.
When identifying the principles of EU law which should be referred to in the recitals not only is it important to provide a list of principles but also to give them some order. In establishing such order, it has to be taken into account that there is neither an established ‘hierarchy’ of principles, nor do all general and foundational principles of EU law work in the same way. The important aspect of general principles is that they serve to guide the interpretation of legal rules of all levels of the EU’s legal system and fill gaps. In that context, the reference to a general principle of EU law in the recitals serves to reiterate its importance in interpreting a legal text such as the regulation on EU administrative procedure. It also serves to clarify which principles have been balanced by the legislature in establishing specific provisions of the regulation.
However, in order to structure the approach to the reference to general principles of EU law in the recitals of the EU regulation on administrative procedure, the various principles can be grouped. Taking into account the very nature of recitals our proposal is mainly grounded in the idea that the recitals not only have a legal purpose (of interpreting the norms in the regulation), but should also have a ‘citizen friendly’ informative purpose. The principles in the recitals therefore need to be presented in a way that may prompt the non-expert to read them.
The proposed recitals are not comprehensive: they are limited to the scope of clarifying the content of general principles of EU administrative procedure law, what other general principles are relevant to the implementation and interpretation of administrative procedure rules, and why those principles are important. Other components need to be added to the recitals such as, to name one example, the legal basis of the act.
Recitals (1) to (5) are intended to explain to a broader public why those principles matter. Recitals (7) to (22) attempt to explain what the content and meaning of those principles are. Recital (6) briefly alludes to internal principles which are very important for the implementation of the principles mentioned in Article 298 (1) TFEU of an open, efficient and independent administration without necessarily creating enforceable subjective rights; contrary to the other principles those internal principles are not further developed in their enunciation in so far as they do not necessarily correspond to subjective rights. One or more specific recitals might be devoted to those principles once the articles of the operative part of the Regulation will have been drafted.
The order in which those principles are presented derives from grounds which are explained in section 1.2 of this note. The recitals include footnotes that are obviously not intended to remain in the proposal of a Regulation. Their purpose is to give the most useful references (mainly about case law) to the reader of this note.
3.2. Proposed Recitals Continue reading