26-11-2015 (1) Modernisation Administrative LLaw-prof Dr G.H. Addink Pd-powerpoint

8/18/2019 26-11-2015 (1) Modernisation Administrative LLaw-prof Dr G.H. Addink Pd-powerpoint

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THE MODERNISATION OF

ADMINISTRATIVE LAW AND

GOOD GOVERNANCE

Prof. Dr. G.H. Addink


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Introduction

• Administrative law: two lines (dichotomy)

• The position of the administration, theinternal perspective: different developments

• The position of the citizens, the external

perspective: different developments• Both fixed on the administrative law norms for

the administration: different developments

• Administrative on different levels: national norms

but also more regional and international norms

• Which norms exactly and how bring them together?

• Conclusions


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Trends in innovation administrative law

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Classical approach: administrative law is specifiedconstitutional law with fixation on the law

• In a modern state this is a to restrictive approach forthe administration and for the citizens

• Different European countries discussion about

innovation of administrative law: Schmidt Assmann(Heidelberg), Auby (Paris II), Craig (Oxford) but alsoin Spain (Javier Barnes-Madrid, Sole Ponce-Barcelona)

• Main points in this discussion: Growing role of the

steering character of the general law in administrativelaw; specification of constitutional norms; direct linkwith specific (functional fields of) administrative law


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Good Governance: institutional and substantial

developments (I)

• The national State: 3 powers, from separation to balancing powers

• Growing importance of the fourth independent powers: Ombudsman, Court of Audit

• The national State: democratic rule of law;

- the rule of law (rechtsstaat) principle worked out inthe following 4 aspects: legality, balancing powers,

independent judiciary and protecting human rights- the democracy principle: elections, transparency and participation of citizens


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Good Governance: institutional and substantial

developments (II)

• Focus Principles of Good Governance

• Differences between Principles of Good Governance,Principles of Good Administration and Principles ofCorporate Governance

• Good Governance: Good Legislation, GoodAdministration and Good Judiciary

• Principles of Good Administration direct linked toPrinciples of Democratic Rule of Law

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6 Principles of Good Administration: principles of proper administration, transparent administration, participative administration, effective administration,accountable administration and human rightsadministration


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Principles of Good Governance on several levels

• National: central, departmental, local

• Regional: EU, EAC, ASEAN, Mercosur etc.

• International:

- World Bank

- IMF

- UNDP

- WTO

• More interaction between the levels: no separate levels but each level is influencing the other levels


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National level: Principles of Proper administration

• On national level different types of development ofPrinciples of Proper Administration

• Germany: in constitution some general principles andapplication by the court

• France: stronger development of principles by thecourts

• Netherlands: some principles in constitution, activedevelopment of principles by the courts, codificationof principles in general administrative law act

• Other Principles of Good Administration are workedout in specific legislation, case law and internationalregulation


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Regional and international developments on

Principles of Good Administration (I)

• On European level two types of institutions: EuropeanUnion and Council of Europe

• European Union started as an Economic Union butnowadays there is much more of integration including

the monetary integration (Euro)• EU has its own legal framework and institutions but

partly the implementation is done on national level

• Council of Europe is more focus on harmonisation ofhuman rights and good governance on national level

• Council of Europe can only make recommendations tothe member states

• A part of the Council is the European Court on Human

Rights


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Principles of Good Administration (II)

• On EU level the Code of Good Administrative behavior: developed by the European Ombudsman,fixed by the European Parliament as an example for allEuropean institutions

• Elements: lawfulness, absence of discrimination, proportionality, absence of abuse of power,impartiality and independence, objectivity, legitimateexpectations, consistency, fairness, courtesy, reply toletters, acknowledgement of receipt, obligation

transfer to competent institution, right to be heard andmake statements, reasonable time-limit of takingdecisions, duty to state grounds, indication possibilityof appeal, notification of decision, data protection,request for information, request for public access todocuments, keeping adequate records


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Principles of Good Administration (III)

• On Council of Europe level: the recommendation tomember states on good administration including theCode of Good Administration; recommendation is tomake a general legal instrument

• Elements: lawfulness, principles of equality, principleof impartiality, principle of proportionality, principleof legal certainty, principle taking action withinreasonable time, principle of participation, principle ofrespect for privacy; specific related to decisions:

request from private persons, right of private personsto be heard, right of private persons to be involved,contribution of private persons to costs, form ofadministrative decisions, publication of administrativedecisions, entry into force, execution, change, appealsagainst decisions, compensation


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External developments: right to good administration

• 2000: Charter of Fundamental rights European Union• Article 41: a specified subjective right to good

administration for every person

• Article 43: any citizen right to complaint Ombudsman

• European Ombudsman is applying the code of goodadministrative behaviour

• European Court of Justice is applying the principles ofgood administration

• European Lisbon treaty EU: codified and enforceableright to good administration

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Conclusions

General Administrative Law:

• In several countries there is a discussion about a

right-oriented innovation of administrative law• This innovation is fixed on steering character of

general administrative law, specification of the normsfor the administration and direct link and interactionwith the specific fields of administrative law

Principles of Good Administration:

• Development from proper administration to Principlesof Good Administration

• Distinguishing between Good Governance, GoodAdministration and Corporate Governance

• On national and regional level development to aspecification of these principles in a Code of GoodAdministration

• On regional level fundamental right to goodadministration

Documents

26-11-2015 (1) Modernisation Administrative LLaw-prof Dr G.H. Addink Pd-powerpoint