Marcin Stupak
The Fundamental Right to Good Administration in its New
Attire
Introduction
The main human and fundamental rights recognised at Community law are catalogued
in one document – and that is a Charter of Fundamental Rights and Freedoms. The citizen’s
right to good administration is quite new and perhaps even revolutionary1, as this is the first
time that any legal system has proclaimed it and then constitutionalised it.
From one side the statement seems obvious: it is natural that the citizens of European
Union are entitled to good administration. Therefore the question arises: when the
responsibility rests with the administrative authorities to deliver good administration, why
then declare a right? And does the right to good administration under the Charter represents a
new right?
Moreover, in this work I would like to find answers for these questions:

What is the nature of the right to good administration and what are the principles
of good administration?

What is the role of the individual in bringing action for the judicial review?

What is the result of the declaration of this right in the Charter?
The right to good administration poses a question of good administration in what
regard? First of all, good administration may be understood as an obligation imposed on the
Community Institutions. With the emergence of principles of good administration, the EU
Ombudsman was established to maintain high standards for performance into the practices of
the Community Institutions. Moreover, the Ombudsman created the Code of Good
Administrative Behaviors. This is a normative document which shall be adopted by all
1
P. Craig, The Constitutionalisation of Community Administration, E. L. Review 2003, p. 840.
1
European Institutions. However, the EU Parliament was the only one which adopted the
Ombudsman’s code.
It must be stated that not all rights have the same character. Some of them have the form
of enforceable rights, others operate as imposed duties and some are merely aspirational.
What was the purpose of instituted the office of EU Ombudsman? The main factor was
to root out maladministration from the Community Institutions. However the concept of
maladministration is unclear and undefined in EU law. The Ombudsman has proposed that
maladministration can be understood as “the breach of legally-binding rules”. That is a very
wide interpretation, which refers both to hard and soft law. What is more, the Ombudsman
has no power of redress, and many legal commentators have criticized him for a legalistic
approach.
The main resource for this work was the monography on good administration written by
Jill Wakefield and the litereture there given. Recent cases give an opportunity to follow the
Court of Justice way of interpretation.
The nature of the right to good administration and the principles of good
administration
The legitimacy of the European Union remains in the Member States. That means that
all activities at european level are valid only as they received the approbation of the citizenry
of the Member States2.
The crucial principle of the European Union is the adherence to the rule of law. That
includes fair and impartial administration procedures. Procedural rules may be identified as
the means of securing fundamental rights and the protection of the individual. Adherence to
procedural rules is tested principally by the Courts, referred to the Article 230 EC. Under
Article 230 EC the Court of Justice was always concerned there is no actio popularis. It is
always a balance between ensuring legal certainty and a stable administration.
The rule of law generate rights such as a right to a fair hearing, rights to defence,
professional privilege, and possibly, the emergent right to proper administration.
The Court of First Instance considered the notion of the Commission being “punished”
for procedural irregularity3. However, the notion of administrative responsibility is underdeveloped in the European legal order. The Commission operate in a collegiate manner and
2
3
J. Weiler, The Construction of Europe, Cambridge 1999, p. 45
Case T-15/02 BASF AG v. Commission, judgement of 15 March 2006, para. 607.
2
“bear collective responsibility on the political level for all decisions adopted4.” In the action
for damages it is Community that incury liability rather than any of its officials.
First of all, it must be stated that the features of good administration are not fixed or
written down in one document. The only way they can be identified is when the conduct of
administration fails to reach an acceptable standard. And this standard varies over time,
circumstances and context. The individual rules of which the principle of good administration
is comprised have different status and are not of equal importance within a hierarchy of
Community rules. While some are no more then rules of conduct, others have achieved the
rank of legally-binding obligation. To give an example, the rule that requieres a prompt
response from the administrative authorities is actionable only under certain cirsumstances.
Some rules comprised in the principle of good administration have been perceived to have
compelling nature, even if it was not recognised at the time the Treaties were originally
drafted. As an exmple we can give the rule that individuals should have a right of access to
documents held by public authorities. It has moved from unenforceable right to an actionable
right entrenched in the EC Treaty5.
Judical review of the breach of good administration and the role of the
individual in bringing action for judicial review
What are the aspects of Judical review? Firstly, to uphold the rule of law and to provide
an effective remedy. Also important is to ensure the legality of decision-making process. As
we may read from the Explanations to the Charter of Fundamental Rights, the principle of
good administration was given the force of direct effect. Moreover, it was recognised as a
general principle of law by the Court of Justice. Article 230 EC sets the grounds for the Court
of Justice, and that is:

lack of competence,

infringement of essential procedural requirement,

infringement of the Treaty or

infringement of any rule of law relating to its application or

misuse of powers.
Adherence to the principles of good administration would operate to prevent breach of
the law in any of these situations. And that is, the breach of good administration is implicated
4
5
Case 5/85 AK20 Chemie v. Commission, ECR 2585, para. 30.
Article 255 EC inserted by the Treaty of Amsterdam.
3
in all grounds of review but, being a matter of conduct, will not base an action for review
except in its legally recognized elements, such as the right to documentation or the right to
hearing6.
The Council of Europe has characterised judicial review as “the ultimate guarantee of
individual rights as well as the rights of the administrative authorities”. In its origin, the
Treaty secured no role for the Parliament in legitimating Community action. Later on, the
Parliament gained the status of a privileged party and now may be said constitutionally to
have the responsibility for ensuring the legality of acts of the EU institutions for the citizenry.
However, the right of the individual to bring an action for the review of legality of the acts of
the EU institutions retained in the Treaty.
Now we shall pose a question what is the purpose for bringing an action for annulment?
A well-grounded answer is that, to find not a responsibility but to seek a declaration of
illegality. By this, we may consider the role of the individual (in the review action) in two
aspects.
This first is to protect the interest of the individual. To help monitor output legitimacy,
the traditional right to challenge on personal interest.
The second, until recently, has been of minor importance. But increasingly the judicial
review at the suit of the individual is to regulate the exercise of powers by the administration
over the individual. In individual decision there is a supervision which would be difficult to
achieve in the absence of an action by the individual7. This is the area in which the principles
of good administration may be seen to be widening the scope of judicial review.
Above all, as it was mentioned before, when the European Parliament is to represent the
interests of individuals there is no intention to give a greater role to the citizen. It means that
in all cases the individual concern must be demonstrated, when a natural or legal person in not
the addressee of the contested measure8. This test was laid down in the Plaumann ruling:
“Persons other than those to whom a decision is addressed may only claim to be
individually concerned if that decision:
 affects them by reasons of certain attributes which are peculiar to them or
6
J. Wakefield, The Right to Good Administration, Kluwer Law 2009, p. 45.
J. Wakefield, The Right to Good Administration, Kluwer Law 2009, p. 15.
8
J. Usher, Direct and Individual Concern – an Effective Remedy or a Conventional Solution, E.L. Review
28/2003, p. 580.
7
4
 by reasons of circumstances in which they are differentiated from all other
person and by virtue of these factors distinguishes them individually just as in
the case of the person addressed9.”
What is of a great importance, when the Court issued the Plaumann rule, the European
Parliament had no effective role in the legislative process and was not yet a representant of
the citizens. Moreover, the Court stated that
“the provisions of the treaty regarding the right of action of interested parties must not
be interpreted restrictively, where the treaty is silent a limitation in this respect may not be
presumed”.
Relatively recently The Court of First Instance proposed a different interpretation of
individual concern in Jego Quere case, however it was rejected by the Court of Justice in the
appeal. In this ruling the Commission alleged that the interpretation of individual concern
adopted by the Court of First Instance in the contested judgment was so wide as to remove in
fact the requirement of individual concern laid down by the fourth paragraph of Article 230
EC. The Court of Justice agreed with this argument and stated that:
“the Court of First Instance erred in law by confusing the right to an effective remedy
with a general individual direct right to bring proceedings for annulment of general measures,
as the fact that the latter is unavailable does not mean that the former does not exist. It is
wrong to conclude that the judicial system established by the Treaty can no longer be
regarded as guaranteeing persons the right to an effective remedy enabling them to contest the
legality of Community measures of general application which directly affect their legal
situation, and that, accordingly, the conditions governing the admissibility of an application
for annulment should be extended for the benefit of individuals by reconsidering the settled
case-law relating to the notion of a person individually concerned according to the fourth
paragraph of Article 230 EC10”.
As we may see from the judgment, the Court of Justice is very unwilling to wide the
scope of individual activity, opposite to the Court of First Instance. The pending question is
whether the standard from the 60. should still remain untouched in the European
jurisprudence.
9
Case 25/62 Plaumann v. Commission, ECR 95.
Case T-177/01, Jego Quere v. Commission, ECR II-2365.
10
5
Adjudication of good administration and Conclusions
The Court of First Instance is seen to have the function of providing “protection for
natural or legal persons against any unlawful act or omission of a Community Institution11”.
The main purpose to establish this court was to improve the quality of judicial
protection, as well as to cope with the great increase in the work of the Court of Justice12.
It is interesting that the proportion of appellation to the Court of Justice is relatively
small, the development of principles of administrative law has been left to the Court of First
Instance, as the Court of Justice usually concurs in its decisions.
The obligation of good administration is not new to the Community legal system. In
early case law, the Court of Justice examined the administrative process to identify failure to
achieve good administration through an appraisal of the nature, object and proper operation of
the duty performed13. A duty is to be executed in a diligent manner.
From the very beginning – in 1961, in the Meroni case we may find the elements of the
definition of the diligent execution, and that is:
 acting within a reasonable time
 permitting access to information
 obtaining necessary evidence
 enabling a party to be heard14.
In 1997 the Court of First Instance attempted to make the principal of proper
administration binding in the context of the exercise of wide discretionary powers: the
guarantees for administrative rights within the Community legal order were stated to be of
“ever more fundamental importance”. The Court set out three categories of guarantee:
 the duty to carefully and impartially examine all the relevant aspects of the
individual case,
 the rights of a person known to be affected to state his views,
 entitlement to an adequately reasoned decision15.
11
K. Lenearts, Procedural Law of the European Union, London 2006, p.14.
J. Fairhurst, Law of the European Union, London 2008, p. 145.
13
J. Wakefield, , The Right to Good Administration, Kluwer Law 2009, p. 34.
14
J. Wakefield, The Right to Good Administration, Kluwer Law 2009, p. 145.
15
Case T-167/94 Detlef v. Council and Commission, ECR II-2589, para. 73.
12
6
At the beginning of the XXI century The Court of Justice has not categorised the
right to good administration as a general principle of law. It is important, because at that time
the Court declared that the principle of sound administration “does not in itself confer rights
upon individuals16”.
Later on, in 2006 the Court stated that the only exception is “where it constitutes the
expression of specific rights such as the right to have affairs handled impartially, fairly and
within a reasonable time, the right to be heard, the right to have access to files, or the
obligation to give reasons for decisions, for the purposes of Article 41 of the Carter of
Fundamental Rights17”. This is a very narrow interpretation. As J. Wakefield says, “a general
right to good administration is not recognised; but some specific rights are recognised at law,
standing as discrete rights enforceable without the necessity to refer to a right to good
administration18”.
In my opinion we may compare this situation with the principle of the “rule of law”.
When the courts found essential elements of this principle, such as lex retro not agit or proper
vacatio legis there was no need to give the principle of the rule of law as the legal base for the
claim. Similar with good administration – when we know what are the particular principles
(for example the right to be heard) this can be a sufficient base for our claim. The question
arises here – why the legislator decided to distinguish this right in the Charter for
Fundamental Rights? One of the reason may be that good administration supports the manner
in which constitutional, administrative and regulatory powers are exercised whether in the
making of laws or their implementation19. Moreover, good administration requires that the
body exercising its act with care and in conformity with operational rules.
For a long time the Court has refused to recognise general right to good
administration. The reason for this may be the potential conflict between the Community
interest as pursued by the Commission and the individual interest in the right to good
administration. Was that conservative approach changed by the declaration of this right in the
Charter? In my opinion partially, the rulling as Fresh Marine, Angraz and Schneider shows
that the Court has extracted purely administrative process from complex decision-making
procedure. But this is only a first step on the way.
16
Case T-196/99 Area Cova v. Council and Commission, ECR II-3597, para. 43.
Case T-193/04 Hans-Martin Tillack v. Commission, judgement of 4 October 2006, para. 127.
18
J. Wakefield, The Right to Good Administration, Kluwer Law 2009, p. 126.
19
J. Wakefield, The Right to Good Administration, Kluwer Law 2009, p. 223.
17
7
Bibliography
P. Craig, The Constitutionalisation of Community Administration, E. L. Review 2003
J. Fairhurst, Law of the European Union, London 2008
K. Lenearts, Procedural Law of the European Union, London 2006
J. Usher, Direct and Individual Concern – an Effective Remedy or a Conventional Solution,
E.L. Review 28/2003
J. Wakefield, The Right to Good Administration, Kluwer Law 2009
J. Weiler, The Construction of Europe, Cambridge 1999
Cases
Case 25/62 Plaumann v. Commission, ECR 95
Case 5/85 AK20 Chemie v. Commission, ECR 2585
Case T-167/94 Detlef v. Council and Commission, ECR II-2589
Case T-177/01, Jego Quere v. Commission, ECR II-2365
Case T-196/99 Area Cova v. Council and Commission, ECR II-3597
Case T-177/01, Jego Quere v. Commission, ECR II-2365
Case T-15/02 BASF AG v. Commission, judgement of 15 March 2006
Case T-193/04 Hans-Martin Tillack v. Commission, judgement of 4 October 2006
8