BETTER…ADMINISTRATIVE MAKING AT EU LEVEL (when the European Parliament paves the way to an, almost reluctant, European Commission…).

Since years the European Parliament ask the European Commission to submit a formal legislative proposal framing the administrative activity of the European Union as foreseen by art 298 of the Treaty on the functioning of the European Union and by the European Charter of Fundamental Rights.

According to the former “In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration”.

Even more clearly the art 41 of the Charter (Right to good administration) states that :
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.
3.Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.”

More than six year have past since the entry into force of the Treaty, in the meantime the EU administrative constellation has become even more complex with new agencies, authorities and networks but the European Commission has not yet considered that the time has come to bring some order in a domain which many have described as the “maquis” communautaire (instead of “aquis” communautaire..). This is even more appalling bearing in mind the increasing importance recognized also by the Court of Justice to the principle of good administration when assessing the legitimacy of the activity of the EU Member States or even of third countries. ..

It has then to be praised the fact that also in this legislature the Legal Affairs Committee (JURI) of the European Parliament has decided to ask to a group of eminent experts in this domain to write a full fledged legislative text which can “inspire” the European Commission. The full study and the text are accessible here .

Below the text of the draft legislative proposal as well as the first part of the study “The context and legal elements of a Proposal for a Regulation on the Administrative Procedure of the European Union’s institutions, bodies, offices and agencies” authored by Professors  Diana-Urania    Galetta,   Herwig   C.   H.   Hofmann,   Oriol  Mir Puigpelat and Jacques Ziller.

Emilio De Capitani

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Proposal for  a REGULATION OF THE   EUROPEAN PARLIAMENT AND OF THE COUNCIL on the  Administrative Procedure  of  the  European  Union’s  institutions, bodies,  offices  and  agencies

THE EUROPEAN   PARLIAMENT  AND  THE  COUNCIL OF  THE EUROPEAN UNION,
Having    regard    to    the    Treaty    on    the    Functioning    of   the    European    Union,   and    in    particular Article  298   thereof,
Having  regard  to  the proposal  from  the European  Commission,
After  transmission of  the draft legislative act  to  the national  parliaments,
Acting in accordance with  the  ordinary  legislative procedure, Whereas:
(1) With the development of the competences of the European Union, citizens are increasingly confronted with the Union’s institutions, bodies, offices and agencies, without  always having their procedural  rights adequately  protected.
(2) In a Union under the rule of law it is necessary to ensure that procedural rights and obligations are always adequately defined, developed and complied with. Citizens are entitled to expect a high level of transparency, efficiency, swift execution and responsiveness from the Union’s institutions, bodies, offices and agencies. Citizens are also entitled to receive adequate information regarding possibility to take any further  action  in the matter.
(3) The existing rules and principles on good administration are scattered across a wide variety of sources: primary law, secondary law, case-law of the Court of Justice of the European Union, soft law and unilateral commitments by the Union’s institutions.
(4) Over the years, the Union has developed an extensive number of sectoral administrative procedures, in the form of both binding provisions and soft law, without necessarily taking into account the overall coherence of the system. This complex variety of procedures has resulted in gaps and inconsistencies in these procedures.
(5) The fact that the Union lacks a coherent and comprehensive set of codified rules of administrative law makes it difficult for citizens to understand their administrative rights under  Union  law.
(6) In April 2000, the European Ombudsman proposed to the institutions a Code of Good Administrative Behaviour in the belief that the same code should apply to all Union institutions,  bodies,  offices   and   agencies.
(7) In its resolution of 6 September 2001, Parliament approved the European Ombudsman’s draft code with modifications and called on the Commission to submit a proposal for a regulation containing a Code of Good Administrative Behaviour based   on  Article  308  of the  Treaty establishing  the European Community.
(8) The existing internal codes of conduct subsequently adopted by the different institutions, mostly based on that Ombudsman’s Code, have a limited effect, differ from one   another  and  are  not   legally binding.
(9) The entry into force of the Treaty of Lisbon has provided the Union with the legal basis for the adoption of an Administrative Procedure Regulation. Article 298 of the Treaty on the Functioning of the European Union (TFEU) provides for the adoption of regulations to assure that in carrying out their mission, the institutions, bodies, offices and agencies of the Union have the support of an open, efficient and independent European administration. The entry into force of the Treaty of Lisbon also gave the Charter of Fundamental Rights of the European Union (“the Charter”) the  same  legal   value  as  the  Treaties.
(10) Title V (“Citizens’ Rights”) of the Charter enshrines the right to good administration in Article 41, which provides that 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. Article 41 of the Charter further indicates, in a non-exhaustive way, some of the elements included in the definition of the right to good administration such as the right to be heard, the right of every person to have access to their file, the right to be given reasons for a decision of the administration and the possibility of claiming damages caused by the institutions and  its servants  in  the  performance  of their  duties,  and  language  rights.
(11) An efficient Union administration is essential for the public interest. An excess as well as a lack of rules and procedures can lead to maladministration, which may also result from the existence of contradictory, inconsistent or unclear rules and procedures.
(12) Properly structured and consistent administrative procedures support both an efficient administration and a proper enforcement of the right to good administration guaranteed  as a  general  principle  of  Union  law  and under Article  41 of  the Charter.
(13) In its Resolution of 15 January 2013 the European Parliament called for the adoption of a regulation on a European Law of Administrative Procedure to guarantee the right to good administration by means of an open, efficient and independent European administration. Establishing a common set of rules of administrative procedure at the level of the Union’s institutions, bodies, offices and agencies should enhance legal certainty, fill gaps in the Union legal system and should thereby contribute to compliance  with  the  rule  of law.
(14) The purpose of this Regulation is to establish a set of procedural rules which the Union’s administration should comply with when carrying out its administrative activities. These procedural rules aim at assuring both an open, efficient and independent administration and a proper enforcement of the right to good administration.
(15) In line with Article 298 TFEU this Regulation should not apply to the Member States’ administrations.. Furthermore, this Regulation should not apply to legislative procedures, judicial proceedings and procedures leading to the adoption of non-legislative acts directly based on the Treaties, delegated acts or implementing  acts.
(16) This Regulation should apply to the Union’s administration without prejudice to other Union’s legal acts which provide for specific administrative procedural rules. However, sector-specific administrative procedures are not fully coherent and complete. With a view to ensuring overall coherence in the administrative activities of the Union’s administration and full respect of the right to a good administration, legal acts providing for specific administrative procedural rules should, therefore, be interpreted in compliance with this Regulation and their gaps should be filled by the relevant provisions of this Regulation. This Regulation establishes rights and obligations as a default rule for all administrative procedures under Union law and therefore reduces the fragmentation of applicable procedural rules, which result from  sector-specific  legislation.
(17) The procedural administrative rules laid down in this Regulation aim at implementing the principles on good administration established in a large variety of legal sources in light of the case law of the Court of Justice of the European Union. Those principles are set out here below and their formulation should inspire the  interpretation   of  the  provisions  of   this   Regulation.
(18) The principle of the rule of law, as recalled in Article 2 of the Treaty on European Union (TEU), is the heart and soul of the Union’s values. In accordance with that principle, any action of the Union has to be based on the Treaties in compliance with the principle of conferral. Furthermore, the principle of legality, as a corollary to the rule of law, requires that activities of the Union’s administration are carried out in full  accordance with the law.
(19) Any legal act of Union law has to comply with the principle of proportionality. This requires any measure of the Union’s administration to be appropriate and necessary for meeting the objectives legitimately pursued by the measure in question: where there is a choice among several potentially appropriate measures, the least burdensome option has to be taken and any charges imposed by the administration not  be  disproportionate  to  the  aims  pursued.
(20) The right to good administration requires that administrative acts be taken by the Union’s administration pursuant to administrative procedures which guarantee impartiality,  fairness  and   timeliness.
(21) The right to good administration requires that any decision to initiate an administrative procedure be notified to the parties and provide the necessary information enabling them to exercise their rights during the administrative procedure. In duly justified and exceptional cases where the public interest so requires,  the  Union’s   administration   may  delay   or  omit   the  notification.
(22) When the administrative procedure is initiated upon application by a party, the right to good administration imposes a duty on the Union’s administration to acknowledge receipt of the application in writing. The acknowledgment of receipt should indicate the necessary information enabling the party to exercise his or her rights of defence during the administrative procedure. However, the Union’s administration should be entitled to reject pointless or abusive applications as they might  jeopardize  administrative  efficiency.
(23) For the purposes of legal certainty an administrative procedure should be initiated within a reasonable time after the event has occurred. Therefore, this Regulation should  include   provisions   on   a  period  of  limitation.
(24) The right to good administration requires that the Union’s administration exercise a duty of care, which obliges the administration to establish and review in a careful and impartial manner all the relevant factual and legal elements of a case taking into account all pertinent interests, at every stage of the procedure. To that end, the Union’s administration should be empowered to hear the evidence of parties, witnesses and experts, request documents and records and carry out visits or inspections. When choosing experts, the Union’s administration should ensure that they  are  technically   competent  and  not  affected  by  a  conflict   of  interest.
(25) During the investigation carried out by the Union’s administration the parties should have a duty to cooperate by assisting the administration in ascertaining the facts and circumstances of the case. When requesting the parties to cooperate, the Union’s administration should give them a reasonable time-limit to reply and should remind them of the right against self-incrimination where the administrative procedure  may  lead  to  a  penalty.
(26) The right to be treated impartially by the Union’s administration is a corollary of the fundamental right to good administration and implies staff members’ duty to abstain   from   taking   part   in   an   administrative   procedure   where   they   have,   directly or indirectly,    a    personal    interest,    including,    in    particular,    any    family    or    financial interest,  such   as  to   impair  their  impartiality.
(27) The right to good administration might require that, under certain circumstances inspections be carried out by the administration, where this is necessary to fulfil a duty or achieve an objective under Union law. Those inspections should respect certain   conditions  and  procedures  in   order  to   safeguard   the   rights   of  the  parties.
(28) The right to be heard should be complied with in all proceedings initiated against a person which are liable to conclude in a measure adversely affecting that person. It should not be excluded or restricted by any legislative measure. The right to be heard requires that the person concerned receive an exact and complete statement of the claims or objections raised and is given the opportunity to submit comments on  the  truth   and  relevance  of  the   facts  and   on   the  documents  used.
(29) The right to good administration includes the right of a party to the administrative procedure to have access to its own file, which is also an essential requirement in order to enjoy the right to be heard. When the protection of the legitimate interests of confidentiality and of professional and business secrecy does not allow full access to a file, the party should at least be provided with an adequate summary of the content of the file. With a view to facilitating access to one’s files and thus ensuring transparent information management, the Union’s administration should keep records of its incoming and outgoing mail, of the documents it receives and measures it takes, and establish an index of the recorded   files.
(30) The Union’s administration should adopt administrative acts within a reasonable time-limit. Slow administration is bad administration. Any delay in adopting an administrative act should be justified and the party to the administrative procedure should be duly informed thereof and provided with an estimate of the expected date  of  the  adoption   of  the  administrative  act.
(31) The right to good administration imposes a duty on the Union’s administration to state clearly the reasons on which its administrative acts are based. The statement of reasons should indicate the legal basis of the act, the general situation which led to its adoption and the general objectives which it intends to achieve. It should disclose clearly and unequivocally the reasoning of the competent authority which adopted the act in such a way as to enable the parties concerned to decide if they wish   to  defend  their   rights  by  an  application   for  judicial   review.
(32) In accordance with the right to an effective remedy, neither the Union nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by Union law. Instead, they are obliged to guarantee real and effective judicial protection and are barred from applying any rule or procedure which might prevent,   even   temporarily,  Union  law  from   having   full   force  and   effect.
(33) In accordance with the principles of transparency and legal certainty, parties to an administrative procedure should be able to clearly understand their rights and duties that derive from an administrative act addressed to them. For these purposes, the Union’s administration should ensure that its administrative acts are drafted in a clear, simple and understandable language and take effect upon notification to the parties. When carrying out that obligation it is necessary for the Union’s administration to make proper use of information and communication technologies and  to adapt  to their development.
(34) For the purposes of transparency and administrative efficiency, the Union’s administration should ensure that clerical, arithmetic or similar errors in its administrative  acts are corrected  by  the competent authority.
(35) The principle of legality, as a corollary to the rule of law, imposes a duty on the Union’s administration to rectify or withdraw unlawful administrative acts. However,   considering   that   any   rectification   or   withdrawal of   an   administrative   act may conflict with the protection of legitimate expectations and the principle of legal certainty, the Union’s administration should carefully and impartially assess the effects of the rectification or withdrawal on other parties and include the conclusions of such an assessment in the reasons of the rectifying or withdrawing act.
(36) Citizens of the Union have the right to write to the Union’s institutions, bodies, offices and agencies in one of the languages of the Treaties and to have an answer in the same language. The Union’s administration should respect the language rights of the parties by ensuring that the administrative procedure is carried out in one of the languages of the Treaties chosen by the party. In the case of an administrative procedure initiated by the Union’s administration, the first notification should be drafted in one of the languages of the Treaty corresponding to  the  Member  State  in  which  the  party  is  located.
(37) The principle of transparency and the right of access to documents have a particular importance under an administrative procedure without prejudice of the legislative acts adopted under Article 15(3) TFEU. Any limitation of those principles should be narrowly construed to comply with the criteria set out in Article 52(1) of the Charter and therefore should be provided for by law and should respect the essence of the rights and freedoms and be subject to the principle of proportionality.
(38) The right to protection of personal data implies that without prejudice of the legislative acts adopted under Article 16 TFEU, data used by the Union’s administration   should  be  accurate,  up-to-date   and  lawfully   recorded.
(39) The principle of protection of legitimate expectations derives from the rule of law and implies that actions of public bodies should not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest. Legitimate expectations should be duly taken into account where an administrative act  is  rectified  or  withdrawn.
(40) The principle of legal certainty requires Union rules to be clear and precise. That principle aims at ensuring that situations and legal relationships governed by Union law remain foreseeable in that individuals should be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly. In accordance with the principle of legal certainty, retroactive measures should not be taken  except  in  legally justified circumstances.
(41) With a view to ensuring overall coherence in the activities of the Union’s administration, administrative acts of general scope should comply with the principles  of  good administration  referred  to  in  this  Regulation.
(42) In the interpretation of this Regulation, regard should be had especially to equal treatment and non-discrimination, which apply to administrative activities as a prominent corollary to the rule of law and the principles of an efficient and independent  European  administration,
 
HAVE  ADOPTED  THIS  REGULATION: 
 
CHAPTER I GENERAL   PROVISIONS
 
Article  1 Subject  matter and objective…
 

1. This Regulation lays down the procedural rules which shall  govern  the administrative  activities of the  Union’s administration.
2. The objective of   this   Regulation is to guarantee the right to  good administration enshrined in Article 41 of the Charter of Fundamental    Rights    of    the    European Union  by   means of an open, efficient and independent administration.

 
Article 2 Scope
 

1. This Regulation applies   to   the   administrative   activities   of   the    Union’s   institutions, bodies,  offices and agencies.
2. This Regulation shall   not    apply   to   the   activities   of   the   Union’s   administration   in   the course of:

(a) legislative  procedures;
(b) judicial proceedings;
(c) procedures   leading   to  the   adoption   of   non-legislative   acts   directly   based   on   the Treaties, delegated acts or implementing acts.

3. This Regulation shall not apply to the administration  of the Member  States.

 

Article 3 Relationship  between  this  Regulation  and   other  legal  acts  of  the Union
 
This Regulation shall apply without prejudice to other legal acts of the Union providing for specific administrative procedural rules. This Regulation shall supplement such legal acts of the  Union, which shall  be  interpreted  in  coherence  with  its relevant  provisions.
 

Article 4 Definitions
 
For    the     purposes    of    this    Regulation,    the     following    definitions apply:
(a) ‘Union’s administration’ means the administration of the Union’s institutions, bodies,   offices and  agencies;
(b) ‘administrative activities’ means those carried out by the Union’s administration for the implementation of Union law, with the exception of the procedures referred to Article  2(2);
(c) ‘administrative procedure’ means the process by which the Union’s administration prepares,  adopts,  implements and   enforces  administrative  acts;
(d) ‘member of staff’ means an official within the meaning of Article 1a of the Staff Regulations and a servant as defined in indents 1 to 3 of Article 1 of the Conditions of  Employment  of  Other Servants  of the European Union.
(e) ‘competent authority’ means the Union institution, body, office or agency or the entity therein or the holder of a position within the Union’s administration which according  to  the applicable law is responsible for the administrative  procedure;
(f)’party’   means   any   natural   or   legal   person   whose   legal   position   may   be   affected   by the  outcome of  an  administrative  procedure.
 

CHAPTER II  INITIATION OF THE ADMINISTRATIVE PROCEDURE
 
Article   5 Initiation  of  the  administrative procedure
 
Administrative procedures may be nitiated by the     Union’s    administration on its  own initiative  or  by an application of a party.
 
Article  6 Initiation   by   the   Union’s administration
 

1. Administrative procedures may be initiated by the Union’s administration on its own initiative, pursuant to a decision of the competent authority. The competent authority shall examine the particular circumstances of the case before taking the decision whether  to   initiate  the  procedure.
2. The decision to initiate an administrative procedure shall be notified to the parties. The decision shall not be made public before the notification has taken place.
3. The notification may be delayed or omitted only when it is strictly necessary in the public interest. The decision to delay or to omit the notification shall be duly reasoned.
4. The decision to   initiate  an   administrative  procedure   shall   indicate:

(a) a  reference  number  and   the  date;
(b) the  subject  matter  and  purpose  of  the  procedure;
(c) the  description  of   the   main   procedural   steps;
(d) the  name  and   contact   details  of   the  responsible member of staff;
(e) the  competent  authority;
(f) the time-limit for the adoption of the administrative act and the consequences of any failure to adopt the administrative act within the time-limit;
(g) the  remedies  available;
(h) the  address  of  the  website  referred   to  in   Article  28,  if  such  a   website  exists.

5. The decision to initiate an administrative procedure shall be drafted in the languages of the Treaties corresponding to the Member States in which the parties are located.
6. An administrative procedure shall be initiated within a reasonable time after the date of the event that would be the basis of the procedure. It shall in no case be initiated later than  10  years  after   the  date  of   that  event.

 
Article  7 Initiation  by   application
 

1. Administrative procedures may  be  initiated  by  a   party.
2. Applications shall not be subject to unnecessary formal requirements. They shall clearly indicate the name of the party, an address for notification, the object of the application, the relevant facts and reasons for the application, a date and place and the competent authority to which they are addressed. They shall be submitted in writing, either on paper or by electronic means. They shall be drafted in one  of  the  languages  of   the  Treaties.
3. Applications shall be acknowledged in writing. The acknowledgement of receipt shall be drafted in   the  language  of   the  application  and   shall  indicate:

(a) a  reference  number  and   the  date;
(b) the  date  of  receipt  of  the  application;
(c) a  description   of  the  main   procedural   steps;
(d) the  name  and  contact   details   of  the  responsible  member  of   staff;
(e) the time-limit for the adoption of the administrative act and the consequences of any failure to adopt the administrative act within the time-limit;
(f) the  address  of  the  website  referred to in Article  28, if  such  a   website  exists.

4. Where an application does not comply with the one or more of requirements set out in paragraph (2), the acknowledgment of receipt shall indicate a reasonable deadline for remedying the error or producing any missing document. Pointless or manifestly unfounded applications may be rejected as inadmissible by means of a briefly reasoned acknowledgement of receipt. No acknowledgement of receipt shall be sent in cases where successive applications are abusively submitted by the   same  applicant.
5. If the application is addressed to an authority which is not competent to deal with it, that authority shall transmit it to the competent authority and shall indicate in the acknowledgment of receipt the competent authority to which the request has been transmitted or that the matter does not fall within the competence of the  Union’s  administration.
6. When the competent authority proceeds with an administrative procedure, Article 6(2) to (4)  shall   apply  where  appropriate.

 

CHAPTER III MANAGEMENT OF THE ADMINISTRATIVE PROCEDURE
 
Article  8 Procedural   rights
 
The parties shall have the following rights related to the management of the procedure:
(a) to    be    given    all    relevant    information    related    to    the    procedure    in    a    clear    and understandable manner;
(b) to communicate and to complete, where possible and appropriate, all  procedural formalities at a distance and by electronic means;
(c) to use any of the languages of the Treaties and to be addressed in the language of the Treaties of their choice;
(d) to be notified of all procedural steps and decisions that may affect them;
(e) to be represented by a lawyer or some other person of their choice;
(d) to pay only charges that are reasonable and proportionate to the cost of  the procedure in question.
 

Article  9 Duty  of  careful  and  impartial   investigation
 

1. The competent authority shall investigate the case carefully and impartially. It shall take into consideration all relevant factors and gather all necessary information to adopt  a  decision.
2. With the purpose of gathering the necessary information, the competent authority may, where   relevant:

(a) hear  the  evidence  of   parties,  witnesses   and   experts,
(b) request  documents  and   records,
(c) carry   out  visits  and  inspections.

3. Parties may produce  evidence  that   they   deem  appropriate.

 

Article  10 Duty  to  cooperate
 

1. The parties shall assist the competent authority in ascertaining the facts and circumstances of the  case.
2. The parties shall be given a reasonable time-limit to reply to any request of cooperation, taking into account the length and complexity of the request and the requirements of   the   investigation.
3. Where the administrative procedure may lead to a penalty, the parties shall be reminded of the  right   against  self-incrimination.

 
Article  11 Witnesses   and   experts
 
Witnesses and experts may be heard at the initiative of the competent authority or proposed by the parties. The competent authority shall ensure that it chooses experts that  are  technically   competent  and  not  affected   by  a  conflict   of  interest.
 

Article  12 Inspections
 

1. Inspections may be carried out where a legislative act of the Union establishes a power to inspect and where this is necessary to fulfil a duty or achieve an objective under Union law.
2. The inspections shall be carried out in accordance with the specifications laid down and within the   limits   set   by   the   act   that   mandates   or   authorises   the    inspection   as regards the measures that can be taken and the premises which can be searched. Inspectors shall exercise their power only on production of a written authorisation showing  their identity and  position.
3. The authority responsible for the inspection shall give notice to the party subject to the inspection of the date and starting time of that inspection. That party shall have the right to be present during the inspection and to express opinions and ask questions related to the inspection. Where it is strictly necessary in the public interest, the authority responsible for the inspection may delay or omit such notification on duly reasoned  grounds.
4. During the inspection, parties present shall be informed, insofar as possible, of the subject matter and purpose of the inspection, the procedure and rules governing the inspection and the follow-up measures and possible consequences of the inspection. The inspection shall be carried out without causing undue inconvenience to the object of the inspection  or the  person  possessing  it.
5. Inspectors shall draw up without delay a report of the inspection, summarising the contribution of the inspection to achieving the purpose of the investigation and noting the essential observations made. The authority responsible for the inspection shall send a copy of that inspection report to the parties entitled to be present during the inspection.
6. The authority responsible for the inspection shall prepare and conduct the inspection in close cooperation with the competent authorities of the Member State in which the inspection takes place, unless the Member State itself is the subject of the inspection, or this would endanger  the purpose  of the  inspection.
7. In carrying out an inspection and when drawing up the inspection report, the authority responsible for the inspection shall take account of any procedural requirements laid down in the national law of the Member State concerned which specify the admissible evidence in administrative or judicial proceedings of the Member State in  which the  inspection  report  is intended  to  be used.

 

Article   13 Conflict  of   interests
 

1. A member of staff shall not take part in an administrative procedure, in which he or she has, directly or indirectly, a personal interest, including, in particular, any family or financial  interest, such  as to  impair his  or  her  impartiality.
2. Any conflict of interests shall be communicated by the member of staff concerned to the competent authority, which shall take the decision whether to exclude such person from the administrative procedure, having regard to the particular circumstances of the case.
3. Any party may request that a member of staff be excluded from taking part in an administrative procedure on the ground of conflict of interests. A reasoned request to that effect shall be submitted in writing to the competent authority, which shall take   a   decision  after   hearing  the member of staff concerned.

 

Article   14 Right  to  be heard
 

1. The parties shall   have   the   right   to   be   heard   before   any   individual   measure   which would   adversely   affect   them   is  taken.
2. The parties shall    receive   sufficient    information    and   they   shall   be   given    adequate time  to  prepare  their  case.
3. The parties shall   be  given  the opportunity  to  express  their  views  in  writing  or  orally, if  necessary, and  if  they  so  choose,  with the assistance  of  a  person  of their choice.

 

Article   15 Right   of   access to   the file
 

1. The parties concerned shall be granted full access to the file, while respecting the legitimate interests of confidentiality and of professional and business secrecy. Any limitation to this right  shall  be duly reasoned.
2. Where no full access to the entire file can be granted, the parties shall be given an adequate summary of the content  of those documents.

 

Article 16 Duty to keep  records
 

1. For each file, the Union’s administration shall keep records of its incoming and

outgoing mail, of the documents it receives and of the measures it takes. It shall
establish an index  of  the files it  keeps.

2. Records shall be kept with full   respect  to the  right  to  data  protection.

 
Article  17 Time-limits
 

1. Administrative acts shall be adopted and administrative procedures shall be concluded within a reasonable time-limit and without undue delay. The time-limit for the adoption of an administrative act shall not exceed three months from the date of:

(a) the    notification    of    the    decision    to    initiate    the   administrative    procedure    if   it was initiated  by the Union’s  administration, or
(b) the      acknowledgment  of receipt  of the application  if the administrative procedure  was  initiated  by application.

2. If no administrative act can be adopted within the relevant time-limit, the parties concerned shall be informed thereof and of the reasons justifying the delay and they shall be provided with an estimate of the expected date of adoption of the administrative act. Upon request, the competent authority shall respond to questions concerning the progress of  the consideration  of  the  matter.
3. If the Union’s administration does not acknowledge receipt of the application within three months, the application  shall  be deemed  to  be  rejected.
4. Time-limits shall be calculated    in   accordance with Regulation   (EEC,   Euratom)   No 1182/71 of the Council 79.

 

CHAPTER IV CONCLUSION OF THE  ADMINISTRATIVE  PROCEDURE
 
Article  18 Form  of   administrative acts
 
Administrative acts shall be in writing  and shall be signed by the competent authority. They shall   be  drafted   in   a  clear,  simple   and   understandable manner.
 

Article   19 Duty  to  state reasons
 

1. Administrative acts shall    clearly    state   the    reasons    on   which   they   are    based.
2. Administrative acts shall indicate their legal basis, the relevant facts and the way in which    the    different    relevant    interests    have    been  taken  into   account.
3. Administrative acts shall contain an individual statement of reasons relevant to the parties’ situation. If that is not possible due to the fact that a large number of persons are concerned, a general statement of reasons shall be sufficient. In that case, however, any party who expressly requests an individual statement of reasons shall be   provided   with   it.

 

Article   20 Remedies
 

1. Administrative acts shall clearly  state that   an  administrative   review  is  possible.
2. Parties shall have the right to request an administrative review against administrative acts adversely affecting their rights and interests. Requests for administrative reviews shall be submitted to the hierarchical superior authority and, where that is not possible, to the same authority which adopted the administrative act.
3. Administrative acts shall describe the procedure to be followed for the submission of a request for administrative review, as well as the name and office address of the competent authority or the responsible member of staff with whom the request for review has to be submitted. The act shall also indicate the time-limit for submitting such request.
4. Administrative acts shall clearly refer, where Union law so provides, to the possibility of bringing judicial proceedings or lodging a complaint with the European Ombudsman.

 
 
Article 21 Notification of   administrative acts
 
Administrative acts which affect the rights and interests of the parties shall be notified in writing to them as soon as they are adopted. Administrative acts shall take effect for a party  upon  notification  to  that  party.
 

CHAPTER V RECTIFICATION AND  WITHDRAWAL  OF ACTS
 
Article  22 Correction  of   errors  in  administrative  acts
 

1. Clerical, arithmetic or similar errors shall be corrected by the competent authority on its own initiative  or   following  a   request   by the   party concerned.
2. The parties shall be informed before any correction is implemented and the correction shall take effect upon notification. If this is not possible due to the large number of parties concerned, the necessary measures shall be taken to ensure that all   parties   are  informed   without   undue   delay.

 

Article 23 Rectification  or  withdrawal  of   administrative acts  which adversely  affect a
party
 

1. The competent authority shall rectify or withdraw, on its own initiative or following a request by the party concerned, an unlawful administrative act which adversely affects a party.   Rectification or withdrawal shall   have  retroactive effect.
2. The competent authority shall rectify or withdraw, on its own initiative or following a request by the party concerned, a lawful administrative act which adversely affects a party if the reasons that lead to the decision no longer exist. Rectification or withdrawal  shall   not  have   retroactive  effect.
3. Rectification or withdrawal shall take effect   upon notification to the party.
4. Where an administrative act adversely affects a party and at the same time is beneficial to other parties, an assessment of the possible impact upon all the parties shall be drawn up and the conclusions included in the reasons of the rectifying or withdrawing   act.

 

Article  24 Rectification  or  withdrawal   of   administrative acts  which  are beneficial  to  a party
 

1. The competent authority shall, on its own initiative or following a request by another party, rectify or withdraw an unlawful administrative act which is beneficial to a   party.
2. Due account shall   be   taken    of   the   consequences   of   the   rectification    or    withdrawal on parties who legitimately could expect the act to be lawful. If such parties would incur losses due to reliance on the lawfulness of the decision, the competent authority  shall  evaluate  if  those parties are entitled  to  compensation.
3. Rectification or withdrawal shall have retroactive effect only if done within a reasonable time. If a party could legitimately expect the act to be lawful and has argued that it should be upheld, the rectification or withdrawal      shall not have retroactive  effect   with regard to  that   party.
4. The competent authority may rectify or withdraw a lawful administrative act which is beneficial to a party on its own initiative or following a request by another party if the reasons that lead to the specific act no longer exist. Due account shall be taken of legitimate expectations of  other parties.
5. Rectification or withdrawal shall take effect   upon notification to the party.

 

Article 25 Management  of  corrections  of  errors, rectification and withdrawal
 
The   relevant   provisions   in   Chapters   III,   IV   and   VI   of   this   Regulation   shall   also   apply   to   the correction  of  errors,  rectification  and  withdrawal  of administrative  acts.
 

CHAPTER VI ADMINISTRATIVE ACTS OF GENERAL  SCOPE
 

Article 26 Respect for  procedural   rights
 
Administrative    acts    of    general    scope    adopted    by    the    Union’s    administration    shall    comply with  the procedural  rights provided  for  in  this Regulation.
 

Article 27 Legal  basis,  statement  of reasons and publication
 

1. Administrative acts of   general   scope   adopted   by   the   Union’s   administration   shall indicate  their legal  basis and shall  clearly state the reasons  on  which  they are based.
2. They shall enter    into    force    as    from    the    date    of    publication    by    means    directly accessible  to  those  concerned.

 

CHAPTER VII INFORMATION AND FINAL PROVISIONS
 
Article  28 Online information on rules on administrative procedures
 

1. The Union’s administration shall promote the provision of updated online information

on the existing administrative procedures in an ad-hoc website, wherever possible and  reasonable.  Priority  shall   be  given  to  application  procedures.

2. The online information shall  include:

(a) a  link  to  the  applicable legislation,
(b) a    brief    explanation    of    the    main    legal    requirements    and    their    administrative interpretation,
(c) a  description of the main  procedural  steps,
(d) the indication of the authority competent to  adopt  the final  act,
(e) the indication of the time-limit  for the  adoption  of the act,
(f) the indication of remedies  available,
(g) a   link  to  standard   forms   that  may   be  used   by   parties  in  their  communications with  the  Union’s administration   within  the  procedure.

3. The online information   set   out   in   paragraph   (2)   shall   be   presented   in   a   clear   and simple  way.  Access to  that  information  shall  be free  of charge.

 

Article  29 Evaluation
 
The Commission shall submit a report on the evaluation of the functioning of this Regulation to the European Parliament and the Council before (xx years after the entry into  force).
 

Article  30 Entry  into force
 
This Regulation shall enter into force on the twentieth day following that of its publication in  the Official Journal of the  European Union.
 
This Regulation shall  be   binding   in  its entirety. Done at,
For  the  European Parliament The  President
For  the  Council The  President

EXECUTIVE SUMMARY
Background
The Committee on Legal Affairs of the European Parliament has requested a study on “The context and legal elements of a Proposal for a Regulation on the Administrative Procedure of the European Union’s institutions, bodies, offices and agencies”. The study is intended to support the work of the Working Group on Administrative Law in preparing a proposal of a full   draft  text  for such  Regulation.

A previous in-depth Analysis on ‘The General Principles of EU Administrative Procedural Law’ (PE 519.224) outlined suggestions for the wording of some of the recitals of a Regulation on the Administrative Procedure of the European Union that aim at ‘codifying’ general   principles of  EU  administrative  procedural law.

This study examines legal issues and adds explanations to the European Parliament’s draft Regulation on the Administrative Procedure of the European  Union   (the ‘Regulation’).

Aim

• This study aims at assisting the project team of the Working Group on Administrative Law in finalising the text of a draft proposal of the Regulation and its explanatory statement.
• Chapter 1 presents some comments on more general aspects of the notion and process of drafting a regulation on administrative procedures of the EU. This includes reflections which are not merely strictly legal. Chapter 2 contains some considerations of more strategic nature such as those reflecting on the effectiveness and acceptability of the wording of the European Parliament’s future proposal.
• Chapter 3 contains more specific comments on single provisions of the draft Regulation. Chapter 3 therefore individually addresses each provision of the draft Regulation as prepared by the project team and endorsed by the Working Group on Administrative Law.

KEY FINDINGS

• The purpose of establishing an EU regulation on administrative procedure is to improve the quality of the EU’s legal system by, first, fostering compliance with the general principles of EU law in the reality of implementation of EU law, and, second, by reducing the fragmentation of applicable rules.

This will result in a significant potential for simplification of EU legislation, improved transparency of the EU legal system beneficial for citizens and administrations alike and a reduction of redundant multiplication of policy-specific provisions on administrative procedures.

• The experience in many Member States over the last century confirm that an administrative procedure act can contribute to balancing the need for sector-specific rules with clear generally applicable procedures as well as clearly defining individual rights whilst ensuring effective and efficient administrative decision-making.

1.1.    Why establish an EU regulation on administrative procedure?
The purpose of establishing an EU regulation on administrative procedure is to improve the quality of the EU’s legal system. The planned Regulation can contribute to this objective by fostering compliance with the general principles of EU law in implementation of EU law by reducing fragmentation and complexity of the applicable law.
The existing fragmentation of the law applicable to administrative procedure is due to an increase in sector-specific legislation and the subsequent differentiated jurisprudence of the CJEU. Given the lack of a general procedure act of the Union, this has led, on one hand, to a frequently redundant multiplication of regulation of administrative procedures, and on the other, to gaps in applicable rules that need to be filled by General Principles of EU law.
Another important factor that has added to the complexity of EU administrative procedures is the pluralisation of administrative actors through the creation of an increasing amount of EU agencies for various policy areas. Further complexities arise from the multi-jurisdictional implementation of EU policies and the necessary cooperation between European and Member State actors. EU institutions, bodies, offices and agencies regularly contribute to administrative procedures in which a final decision is taken by Member State authorities.
The multiple approaches to defining procedural elements in EU policy specific legislation has caused incoherent rules and a reduced degree of transparency of procedural rights and obligations in administrative procedures. This has resulted in an overall lack of predictability, intelligibility and most-likely trust in EU administrative and regulatory procedures and their outcome, especially from the point of view of citizens, small businesses and other non-specialists.

An EU Regulation on administrative procedures has the potential to contribute to the objectives not only of clarification of rights and obligations but also of simplification of EU law by ensuring that procedures can follow one single rulebook, and thus contributing to better regulation by improving the overall legislative quality.

A codification of the main rules of administrative procedure at the level of the EU’s institutions, bodies, offices and agencies will thus enhance legal certainty, fill gaps in the EU legal system and contribute to compliance with the rule of law. By clarifying the rights of individuals in procedures that affect them it will contribute to compliance with principles of due process and foster procedural  justice.

Rules of administrative procedure are necessary for the realisation of the rights and interests of addressees and third parties in the implementation of EU law. But establishing clear procedural rules will also help EU officials in structuring their work when interacting with citizens, businesses and other legal persons thus adding to the transparency and effectiveness of  the legal  system  as a  whole.

The EP has demonstrated these factors in the ‘European Added Value Assessment’ of October 2012 on a Law of Administrative Procedure of the European Union. It held that a Regulation on Administrative procedure for the EU administration would contribute to rationalise and  reduce fragmentation  as ‘[v]ery few EU regulations embed principles, rights and rules of administrative procedure that apply across the board to all EU policy sectors and to all EU institutions,   bodies,  offices   and   agencies.’1

This make  for a  set  of  fragmented  and  sector-specific rules.

Furthermore, ‘the current situation is that the most precise and comprehensive codification can be found in the internal documents of the institutions, in particular their Rules of Procedure, and in soft law documents, such as codes of conduct. These cannot however properly safeguard citizens’ rights. Only binding, mandatory instruments have the capacity to establish enforceable rights for citizens, i.e. rights which may be the basis for a claim and, if non-compliance with the rules is proven, which may be the source of sanctions. […] Today, the parallel existence of different rules and codes of conduct for the various EU institutions and bodies can give rise to confusion and disorientation that is due to be felt by citizens who have to deal with different institutions and bodies, due to their own different activities. Including clear principles and standards in a written body which would be applicable across the board, would in itself constitute a step forward in terms of transparency: knowledge of the current law by authorities and citizens would be enhanced, which would in turn favour its acceptance and observance by both. Moreover, the new clear wording of the Regulation will offer series of advantages: it will be well structured, precise and written in a user-friendly language; it will be published in all language versions, with the benefit of the involvement of lawyer-linguists; the involvement of MEPs in the ordinary legislative procedure will offer a unique opportunity to check its closeness to  citizens and  its user-friendly  character. ‘2

Additionally,  as  was  recalled  in  the  same  ‘European  Added  Value Assessment’

‘[a] general law of administrative procedure would also have positive effects on the prevailing    institutional    culture,    contributing    in    consequence    to    improving    relations between the EU citizens and Institutions [,..].’3

1.2.  Codification of administrative procedures

The European Added Value Assessment confirms that whereas it is often stated that there are already many – perhaps even too many – provisions that contain some elements of rules and principles of administrative procedures applicable to the administrative activities of the EU’s institutions, bodies, offices and agencies, they suffer not only from a lack of coherence  but  also from  important  lacunae.

The existing set of legal principles, rights and rules that apply to EU administrative procedure suffer from lacunae in that only a few EU regulations embed principles, rights and rules on administrative procedure that apply across the board to all EU policy sectors and to all EU institutions, bodies, offices and agencies. Subject-specific or sector-specific regulations and practices on administrative procedure differ from one case to another.

Not all differences in applicable rules are the indispensable consequence of objective differences of conditions from sector to sector. In some sectors there is clearly a lack of regulations and established practices guaranteeing the rights of citizens, economic actors and other legal  persons.

Thus we agree with the findings of the ‘European Added Value Assessment’ which held that ‘[t]he Commission considers that a binding EU Law on Administrative Procedure might be largely detrimental for the administration, as it would bring excessive rigidity and slow down decision-making. On the contrary, if well-worded, a law of administrative procedure contributes to enhancing the efficiency of administrative systems – i.e. providing better service, possibly at a lower cost – through more effective   and   transparent  procedures   as   well   as  cost  savings.’4

As a matter of fact, more than two thirds of the EU Member States have adopted a general law on administrative procedure, some already before World War II, most of them since the middle of the nineteen-seventies, with a significant increase in speed and depth since the nineteen-nineties.5

On the whole, the experience of Member States with codification shows that the benefits of being able to refer to a single text – which does not impede additions in sector specific regulation where needed – clearly outweigh the problems raised by the necessity for courts to sometimes further define the consequences of the rules which are laid down in a general way.

Setting general rules on administrative procedure means being able to define a minimum common denominator for the regulation of the relations between citizens and Public Administration. This will balance the need for generally applicable rules, on one hand, with the need for special regulation of specific procedures, on the other. It will also help courts in the difficult task of applying procedural rules in relation to changing tasks of the administration.

For all these reasons, in the past quarter century a venerable list of authors from around Europe have supported or called for a Union code of administrative  procedure.6

2. GENERAL COMMENTS ON THE DRAFT REGULATION

 
KEY FINDINGS

• Codification of EU administrative procedure law is not only feasible, but also highly recommendable.
• The mentioning of the EU’s institutions, bodies offices and agencies in the title underlines that the Regulation is not applicable to Member States.
• The draft has a simple and coherent structure.
• Well-developed recitals address the principles resulting from the Charter, the case-law of the CJEU, the practice of EU institutions, bodies, offices and agencies, including, where appropriate, the European Ombudsman’s ‘ombudsprudence’ on the basis of the Code of good administrative behaviour.
• The draft regulation rightly defines the scope covering both cases of ‘direct administration’ as well as of Union activity in the context of composite procedures.

2.1. Introductory remark
Part 2 of this study comments on the title, structure and scope of the draft and key definitions of the wording of the draft Regulation on a Law of Administrative Procedure of the European Union (hereafter the draft),7 which has been drawn up and submitted to our consideration by the Legal Affairs Committee’s project team on administrative law.8 Here, we also take into account our previous in-depth Analysis on The General Principles of EU Administrative Procedural Law’,9 which contained suggestions on the wording of those recitals that aim at ‘codifying’ general principles.

The draft shows that a codification of EU administrative procedure law is not only feasible, but also highly recommendable. It will not only clarify and operationalise the relevant elements of the right to good administration enshrined in Art. 41 of the Charter of Fundamental Rights of the European Union (hereafter Charter) in terms understandable by citizens and civil servants but will also ensure that the obligations arising from Art. 298 TFEU are complied with by the EU legislature. Art. 298 TFEU requires that legislative regulations establish provisions enhancing an open, efficient and independent European administration.10

The comments made in this study are not only strictly legal in nature but are also based upon strategic considerations. Our assumption is that the European Parliament’s Legal Affairs Committee will strive to find the right balance between ensuring broad acceptability of its proposal by MEPs of various political orientations and Member States as well as ensuring that the proposed Regulation has real impact on EU administration and would not risk resulting in a mere window dressing exercise. Overall, the draft Regulation has to achieve the balance between ensuring effective administration, on one hand, and no less importantly,  the protection  of individual  rights, on the  other  hand.

2.2. Title of the Regulation  READ MORE

NOTES (PRO PARTE)