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
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…