# Good Administration from the European Ombudsman's Perspective
- Author: European Ombudsman
- Date: 2008-04-16T00:00+02:00[Europe/Paris]
- [URL](https://www.ombudsman.europa.eu/en/speech/en/5436)
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1 Introduction
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I am delighted to participate in this afternoon's session of the Europa Forum Speyer on "Good administration in the European Union" and I would like to thank Professor Magiera and Professor Sommerman for giving me the opportunity to do so.

As European Ombudsman, my powers of investigation into possible cases of maladministration are limited to institutions and bodies at the level of the European Union. However, I also receive many complaints from citizens and residents of the Union who allege that their rights under Community law are not being respected by administrations in the Member States.

Although I cannot investigate such complaints directly, I co-operate closely with the ombudsmen and similar bodies in the Member States who can do so.

For this reason, the European Ombudsman's perspective on good administration concerns not only the European level, but also the Member States.

I am, therefore, conscious of the diversity that exists in public administration and administrative cultures within the European Union. To give just one example, which has particular relevance to ombudsmen, some national traditions understand administration primarily as the application of law, whereas others emphasise the role of administrative discretion[\[1\]](#_edn1){#_ednref1}.

2 Diversity and subsidiarity
----------------------------

Respect for the diversity of national administrations is an important principle, which I shall label, for convenience, "subsidiarity in administration".

Despite its constitutional significance, in the substantive sense, the principle's formal expression is merely a Declaration attached to the Treaty of Amsterdam, stating that "...the administrative implementation of Community law shall in principle be the responsibility of the Member States in accordance with their constitutional arrangements".[\[2\]](#_edn2){#_ednref2}

One aspect of subsidiarity in administration is that the assignment of legislative competence to the Community in a particular field does not imply that the corresponding administrative competence also belongs at the Union level. On the contrary, indirect administration (that is, administration by the authorities of the Member States) should normally be preferred to direct administration by institutions or bodies at the Union level.

A further important aspect of subsidiarity in administration is that the institutional framework for indirect administration is, in general, a matter for the Member State concerned, rather than being prescribed by Community law. The basic assumption underlying this approach seems to be that all Member States possess a generally effective system of administration (along with such other essential institutions of the State as a legislature, courts, state auditors and a central bank) and that it is therefore unnecessary for Community law to impose particular institutional arrangements.

### Three qualifications

It is important, however, to add three qualifications to what I have said so far about subsidiarity in administration.

First, the institutional separation of administration at the national and at the EU levels does not prevent a high level of co-operation in their functioning. In practice, the administration of Community law and policy involves constant interaction between the national and the EU levels and networks linking them flourish in many fields[\[3\]](#_edn3){#_ednref3}.

Second, the Treaty of Lisbon recognises that effective implementation of Union law by the Member States is a matter of common interest and provides for the Union to support the efforts of Member States to improve their administrative capacity to implement Union law[\[4\]](#_edn4){#_ednref4}.

Third, Community law does, in fact, impose institutional requirements for administration in particular fields, such as - to give just a few examples - data protection[\[5\]](#_edn5){#_ednref5}, competition[\[6\]](#_edn6){#_ednref6}, air passenger rights[\[7\]](#_edn7){#_ednref7} and telecommunications[\[8\]](#_edn8){#_ednref8}.

The institutional arrangements that the Member States must have in these fields include the provision of complaints procedures and effective remedies that can be invoked by individuals whose rights have been infringed. In practice, such rights are normally rights against private actors, though, in the field of data protection, they also apply to public authorities.

### The European Network of Ombudsmen

There is, however, nothing in Community law that requires Member States to have an ombudsman with general competence to handle complaints against public authorities which fail to respect rights under Community law.

In practice, 25 out of the 27 Member States do have an ombudsman at the national level and in one of the exceptions, Germany, the Committee on Petitions of the Bundestag fulfils a role similar to that of an ombudsman.

The national and regional ombudsmen make a vital contribution to ensuring that citizens and residents of the European Union can know and enjoy their rights. Their co-operation with me as European Ombudsman, which I mentioned earlier, now takes place through the European Network of Ombudsmen[\[9\]](#_edn9){#_ednref9}.

The Network exists and functions on an entirely voluntary basis. In October 2007, its members adopted a Statement in order to make the European Union dimension of their work better known and to clarify the service that they provide to people who complain about matters within the scope of European Union law.

The Statement makes clear that ombudsmen respond to complaints and work proactively to raise the quality of public administration and public services. They encourage good administration and respect for rights, suggest appropriate solutions to systemic problems, spread best practice and promote a culture of service-mindedness.

The grounds on which an ombudsman can act normally include: violation of rights, including human and fundamental rights; other unlawful behaviour, including failure to respect general principles of law; and failure to act in accordance with principles of good administration.

That formulation raises certain core issues for this seminar. What are the principles of good administration? What is the relationship between good administration in the work of, on the one hand, the courts and, on the other hand, the ombudsman? More specifically, given the diversity of institutional arrangements for the administration of Community law, is it possible to identify a European concept of "good administration"?

3 In search of a European concept of "good administration"
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### The EC Treaty

The Treaty Establishing the European Community contains a number of provisions that are relevant to good administration at the Community level. Article 230 sets out the basic grounds for annulment of Community acts by the Court of Justice. Article 253 requires legally binding Community acts to state the reasons on which they are based. Article 255 provides for legislation to guarantee transparency at the EU level, in the form of a right of access to European Parliament, Council and Commission documents. Article 288 makes provision for the non-contractual liability of the Community.

As regards administration at the Member State level, Article 10 sets the framework for subsidiarity in administration, by requiring Member States to take all appropriate measures to ensure fulfilment of Community obligations to facilitate the achievement of the Community's tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.

### Community legislation

Relevant Community legislation applying at the EU level includes the Regulations on public access to documents and on protection of personal data[\[10\]](#_edn10){#_ednref10}. As I have already mentioned, there is also a Directive to the Member States on data protection. However, Community law does not confer on citizens any general right of access to documents or to information held by the Member States about EU-related matters. Such Community law rights as do exist are limited to specific fields, in particular the environment[\[11\]](#_edn11){#_ednref11}. Provision has also been made recently for the beneficiaries of Community agricultural subsidies to be identified[\[12\]](#_edn12){#_ednref12}.

The public procurement Directives should also be mentioned as an important body of law, which has quite profound effects in the Member States.

There is, however, no general legislation that could be called a Community "Administrative law", or a Community "Administrative Procedure Act", of the kind that exists in many Member States as part of the national legal order.

### The case law of the Court of Justice

Instead, the relevant Community law has mostly been made by the judges. Two lines of case law are relevant in this context. The first establishes the well-known principles of supremacy and direct effect. The second is that in which the Court has developed the general principles of Community law, such as proportionality, the rights of defence, equality, legitimate expectations and fundamental rights[\[13\]](#_edn13){#_ednref13}.

The case law of the Court of Justice, especially that concerning the general principles of law, constitutes the fundamental source of legal principles concerning "good administration".

Because of supremacy and direct effect, it applies not only at the EU level, but also governs the application of Community law by the administrative authorities of the Member States.

Indeed, the Court of Justice has explicitly stated that it is for all the authorities of the Member State to ensure observance of the rules of Community law within the sphere of their competence and that the duty to disapply national legislation which contravenes Community law applies not only to national courts but to all organs of the State, including administrative authorities[\[14\]](#_edn14){#_ednref14}.

### The European Code of Good Administrative Behaviour

For understandable reasons, however, most of the case law about supremacy and direct effect, and most commentary on that case law, focuses on the role of national courts.

The direct implications of the Court's case law for national and regional administrations are therefore rarely emphasised and remain insufficiently known to many of those who should apply the relevant principles.

One of the main objectives of the European Code of Good Administrative Behaviour, which was drafted by the European Ombudsman and subsequently approved by the European Parliament, was to make more easily accessible certain of the general principles that emerge from the case law of the Court of Justice, such as the right to be heard, proportionality, non-discrimination and the protection of legitimate expectations. The Code also contains other elements, drawn from a variety of sources including national laws, Council of Europe recommendations and "best practice" in the Member States and at the EU level.

Whilst the Code is not legally binding, it has proved helpful as a source of inspiration to national legislators, administrations and ombudsmen, inside as well as outside the European Union and has been used as a basis for a Council of Europe recommendation on good administration[\[15\]](#_edn15){#_ednref15}. Furthermore, at the request of the European Parliament, the European Ombudsman applies the principles in the Code in examining whether there is maladministration by Community institutions and bodies. However, the Code is not a definitive statement of a European concept of "good administration" that would be applicable at all levels of the Union. There was no suggestion, for example, to mention it in the Statement adopted by the members of the European Network of Ombudsmen in October 2007.

4 The Charter of Fundamental Rights of the European Union
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The Statement does refer, however, to the general principles of Community law and says that the Charter of Fundamental Rights of the European Union[\[16\]](#_edn16){#_ednref16} may provide "a useful point of reference in this regard".

Article 41 of the Charter is headed "Right to good administration"[\[17\]](#_edn17){#_ednref17}. According to the published explanations relating to the Charter, its contents are based on "the existence of a Community subject to the rule of law whose characteristics were developed in the case law which enshrined inter alia good administration as a general principle of law".

The wording of the first two paragraphs of Article 41 is also based on the case law of the Community courts[\[18\]](#_edn18){#_ednref18}. These paragraphs state that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union and that this right includes: the right to be heard before any individual measure which would affect him or her adversely is taken; the right to have access to one's file, and the obligation of the administration to give reasons for its decisions.

The scope of Article 41 is limited to the institutions and bodies of the Union. Furthermore, it will not become legally binding until the entry into force of the Treaty of Lisbon. However, to the extent that good administration (a) includes fundamental rights protected by Community law and (b) itself constitutes a general principle of Community law, "good administration" is already a legally binding requirement not only at the EU level, but also on all the public authorities of the Member States, when they act within the scope of Community law.

The interpretation of Article 41 is, therefore, of relevance to the administration of Community law at all levels, not just the Union level.

It is important to recognise, however, that Article 41 does not exhaustively define "good administration". Rather, it leaves scope for further development of the concept, both by the Courts and by the Ombudsman.

As regards the Courts, the existing case law on "good administration" as a separate general principle of Community law, is relatively thin and Article 41 may provide the opportunity for its further development.

It is also noteworthy that the existing case law on "good administration" often seems to refer to the public interest in administrative regularity, efficiency and effectiveness, which may sometimes, but not always, generate individual legal rights[\[19\]](#_edn19){#_ednref19}.

That brings me to the Ombudsman institution, which acts on behalf of the public interest, as well as providing an alternative remedy for individuals to protect their rights. In both roles, the Ombudsman has different characteristics and procedures from the Court.

As regards the public interest dimension, the Ombudsman adopts a proactive and systemic approach, so as to promote good administration and thereby prevent instances of maladministration from occurring.

As regards remedies, natural and legal persons can complain to the Ombudsman in many situations where they could not bring the matter before the Court. Furthermore, the Ombudsman applies a broader review criterion which includes, but is not limited to, questions of legality.

Let me briefly cite just one example, which concerned the Commission's publication of information about new rights for air passengers in the event of denied boarding, cancellation of flights or long delays. The new rights were established by a Regulation[\[20\]](#_edn20){#_ednref20} which came into force in February 2005. The Commission published leaflets and posters to inform travellers about their new rights. In April 2005, two trade associations representing certain air carriers complained to the Ombudsman that the Commission's publications contained a number of statements that were inaccurate and misleading and that the Commission had refused to correct them. After investigation, the Ombudsman found that the material published by the Commission was indeed wrong in certain respects and recommended that it be corrected. The Commission accepted that recommendation[\[21\]](#_edn21){#_ednref21}.

The basis for the finding of maladministration was that it is good administrative practice for EU institutions and bodies to take care that the statements they make are accurate and not misleading and to correct promptly any errors that may occur.

The Ombudsman's decision does not discuss, and did not need to discuss, whether the Commission had acted unlawfully. That, however, seems unlikely and, in any event, the complainants would surely not have been able to obtain a judicial remedy.

The broader scope of the Ombudsman remedy is made possible by the fact that, unlike the Court, the Ombudsman has no power to annul a legally binding act, or to order damages to be paid. Furthermore, the Ombudsman's findings of maladministration do not automatically imply that there is illegal behaviour[\[22\]](#_edn22){#_ednref22}, nor are they binding, as such, on the Court[\[23\]](#_edn23){#_ednref23}.

Part of an ombudsman's function in a modern democracy is to help ensure that the public administration is oriented towards serving citizens and tries to meet their increasingly high expectations -- even if not all those expectations are reflected in legally enforceable obligations.

Within the European Union, different names are given to this aspiration towards a culture of service: service-mindedness, citizen-friendliness, customer focus, proper administration, or indeed "good administration". Its scope is a matter of discussion among ombudsmen in Europe, but at least the following would surely gain wide acceptance as core elements:

* Acting fairly and reasonably;
* Acting carefully;
* Acting consistently and in accordance with established policies;
* Taking into account and balancing all the interests involved;
* Avoiding unnecessary delay;
* Being courteous and helpful, as well as sensitive to individual circumstances, needs and preferences;
* Acknowledging errors and taking action to put the matter right;
* Being open and transparent;
* Seeking continuous improvement.

It is entirely possible for such standards to be made legally binding, either through legislation, or through case law. That, however, is a matter for the legislator and the Courts, who are not bound by the Ombudsman's decisions and findings (but who are of course free to draw on them as a resource).

I would add, however, that it is not obvious that the creation of legal obligations is always the most appropriate way to promote a culture of service, or to provide remedies for administrative failures.

In any event, however extensive the legal obligations of the administration may be, a culture of service to citizens has to be based on more than merely avoiding illegality. Or, as I like to, say, there is "life beyond legality". To put the matter more formally, legality is a necessary, but not a sufficient, condition of good administration.

The way in which good administration as "more than" merely avoiding illegality is conceptualised and put into practice will depend on the broader constitutional, political and legal environment. That, of course, brings me back to my starting point, which was the need to recognise the diversity of national administrations.

5 Conclusion
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The preceding reflections lead me to the conclusion that "good administration in the European Union" is not a fixed or uniform concept that can be subject to a definitive legal exposition of the kind one would find in a textbook. Rather, "good administration" represents a continuum from fixed rules through principles to the broader aspiration to empower citizens and enable them to enjoy their rights fully. Good administration thus provides space for the Ombudsman institution to play a role that is separate from, and complementary to, that of the Court in contributing to an evolving European legal order based on rule of law and democracy.

*** ** * ** ***

[\[1\]](#_ednref1){#_edn1} See Diamandouros, P. N., "Legality and good administration: is there a difference?" in J-P. Delevoye and P. N. Diamandouros (eds.), *Rethinking good administration in the European Union*, Luxembourg: Office for Official Publications of the European Communities (forthcoming, 2008).

[\[2\]](#_ednref2){#_edn2} Declaration relating to the Protocol on the application of the principles of subsidiarity and proportionality, attached to the Treaty of Amsterdam (Declaration 43: *1997, OJ C 340, p. 140* ). The conclusions of the Essen European Council (December 1994) used slightly stronger words, stressing that "*administrative implementation of Community law must in principle remain the preserve of the Member States*".

[\[3\]](#_ednref3){#_edn3} The implications of this point for transparency were emphasised in the European Ombudsman's response (dated 11 July 2007) to the Commission's green paper "Public Access to Documents held by institutions of the European Community: a review". See <http://ombudsman.europa.eu/letters/en/20070711-1.htm>

[\[4\]](#_ednref4){#_edn4} See the new Article 197 of (what would become) the Treaty on the Functioning of the Union.

[\[5\]](#_ednref5){#_edn5} Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, 1995 *Official Journal* L 281 p. 31.

[\[6\]](#_ednref6){#_edn6} Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) 2003 *Official Journal* L 001, p. 1.

[\[7\]](#_ednref7){#_edn7} Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 2004 *Official Journal* L 46, p. 1

[\[8\]](#_ednref8){#_edn8} Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive 0J 2002 L 108 p. 33.

[\[9\]](#_ednref9){#_edn9} The Network also includes the national ombudsmen of the candidate countries and of Iceland and Norway, as well as the Committee on Petitions of the European Parliament.

[\[10\]](#_ednref10){#_edn10} Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, 2001 OJ L 145 p. 43; Regulation (EC) 45/2001 of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8 p. 1.

[\[11\]](#_ednref11){#_edn11} See, in particular, Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, 2003 *Official Journal* L 041, p. 26.

[\[12\]](#_ednref12){#_edn12} Council Regulation (EC) No 1437/2007 of 26 November 2007 amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy, 2007 Official Journal L 322 p. 1

[\[13\]](#_ednref13){#_edn13} See generally, Takis Tridimas, *The General Principles of EU Law* (2nd ed.) Oxford, Oxford University Press, 2006.

[\[14\]](#_ednref14){#_edn14} Rosas, A., 2008 "Ensuring uniform application of EU law in a Union of 27: the role of national courts and authorities', in J-P. Delevoye and P. N. Diamandouros (eds.), *Rethinking good administration in the European Union*, Luxembourg: Office for Official Publications of the European Communities (forthcoming, 2008).

[\[15\]](#_ednref15){#_edn15} Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration, adopted by the Committee of Ministers on 20 June 2007.

[\[16\]](#_ednref16){#_edn16} The Charter of Fundamental Rights of the European Union was proclaimed again on 12 December 2007, prior to the signing of the Treaty of Lisbon on 13 December 2007 and is published in the Official Journal (OJ 2007 C 303 p. 1), together with explanations of its provisions (OJ 2007 C 303 p. 17).

[\[17\]](#_ednref17){#_edn17} 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

2. This right includes:

-- the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

-- 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;

-- the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Community 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."

[\[18\]](#_ednref18){#_edn18} The case law mentioned in the explanations as regards the general principle of good administration and the first two paragraphs of Article 41 is: Case 222/86 *Heylens* \[1987\] ECR 4097; Case 374/87 *Orkem* \[1989\] ECR 3283; Case C-255/90 P, *Burban* \[1992\] ECR I-2253; Case C-269/90 *TU München* \[1991\] ECR I-546; Case T-450/93 *Lisrestal* \[1994\] ECR II-1177; Case T-167/94 *Nölle* \[1995\] ECR II-2589; Case T-231/97 *New Europe Consulting and others* \[1999\] ECR II-2403. One could now also add, for example, Case T-211/02 *Tideland Signal v Commission* \[2002\] ECR II-3781; Case T-2/03 V*erein für Konsumenteninformation v Commission* \[2005\] ECR II-1121 and Joined cases C-154/04 and C-155/04 *Alliance for Natural Health and Nutri-Link v Secretary of State for Health* \[2005\] I-6451.

[\[19\]](#_ednref19){#_edn19} Case T-196/99, *Area Cova and others v Commission* , para. 43. See also Case T-193/04, *Hans-Martin Tillack v Commission,* 2006 ECR II-03995, in which the Court qualified the approach in *Area Cova* by saying that the principle of sound administration does not, in itself, confer rights upon individuals, *except where it constitutes the expression of specific rights for the purposes of Article 41 of the Charter*.

[\[20\]](#_ednref20){#_edn20} Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, 2004 *Official Journal* L 46, p. 1.

[\[21\]](#_ednref21){#_edn21} Case 1475/2005/(IP)GG. See [http://www.ombudsman.europa.eu/decision/en/051475.htm](/decision/en/051475.htm)

[\[22\]](#_ednref22){#_edn22} See the judgments of the Court of First Instance in joined cases T-219/02 and T-337/02 *Herrera v Commission* \[2004\] ECR-SC IA-319, II-1407, para. 101; and of 4 October 2006 in Case T-193/04 R, *Hans-Martin Tillack* v *Commission*, para 128.

[\[23\]](#_ednref23){#_edn23} See the judgment of the Court of First Instance of 11 April 2006 in Case T-394/03, *Flavia Angeletti v Commission,* para 157.