Towards Administrative Human Rights in the EU. Impact of the Charter of Fundamental Rights

• DOI: http://doi.org/10.1111/j.1468-0386.2004.00218.x
• Author: Klara Ka´nska
• Date: 01 May 2004
• Published date: 01 May 2004

Towards Administrative Human Rights in

the EU. Impact of the Charter of

Fundamental Rights*

Klara Ka ´nska**

Abstract: This article analyses the development of administrative human rights in the EU.

It demonstrates that the new right to good administration enshrined in Article 41 of the

Charter of Fundamental Rights crowns a long process of constitutionalisation of basic

administrative rights in the Community. The article discusses the meaning, content, and

possible impact of Article 41 of the Charter. It explains, inter alia,the doctrinal basis of

a ‘right to good administration’, and its more immediate origins. It also offers a textual

analysis and commentary of Article 41. Other rights, which possibly come within the

concept of ‘good administration’ but are not included in Article 41, are also suggested.

The article concludes with an evaluation of Article 41 of the Charter. It argues that

although Article 41 is a signif‌icant development in terms of individual administrative

rights, it offers a one-sided vision of the function of administrative law.

I Introduction

We may safely pronounce, that the true test of a good government is its aptitude and tendency to produce

a good administration.1

To include [the right to good administration] in the Charter could have a broad impact helping to make

the 21st century the century of good administration.2

The message conveyed by A. Hamilton’s speech at the Constitutional Convention on

18 June 1787 was a very clear one: ‘[the people’s] conf‌idence in and obedience to a

European Law Journal, Vol.10, No. 3, May 2004, pp. 296–326.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*This article is a shortened version of an LLM. thesis submitted at the London School of Economics. I

am greatly indebted to Professor Carol Harlow for her invaluable comments and support. This article

also owes much to my participation in the seminar on European Administrative Law conducted by Pro-

fessor Harlow and Professor Richard Rawlings at the LSE. I would also like to thank Keith Vicent who

planted the seed for my research in the f‌ield of administrative rights.

** LL.M. in European Law (London School of Economics), PhD candidate and tutor of European Law at

the Faculty of Law and Administration, University of Warsaw.

1The Papers of Alexander Hamilton,ed A. C. Syrett (Columbia University Press, 1962) vol. 4, at 589.

2J. Söderman, ‘Public Hearing before the Convention on the Draft Charter of Fundamental Rights of

the European Union’, speech delivered in Brussels, 2.2.2000. Speeches of the European Ombudsman are

available at o-ombudsman.eu.int/speeches/en/de-fault.htm>.

government, will commonly be proportioned to the goodness or badness of its admin-

istration’.3Hamilton believed that the main task of the new federal government is to

develop a good administration in order to gain conf‌idence of the people, and thus create

a sense of common national citizenship.

On 28 February 2002 the Convention on the future of the European Union held its

inaugural session. One of the core tasks of the Convention, as def‌ined in the Laeken

Declaration,4was to bring citizens closer to the European institutions. This should be

achieved, inter alia,by ‘more democratic, transparent and eff‌icient institutions’. Among

the many questions asked in the Declaration were: ‘[h]ow can the authority and eff‌i-

ciency of the European Commission be enhanced?’ and ‘how we can improve the eff‌i-

ciency of decision-making and the workings of the institutions in a Union of some

thirty Member States?’. Clearly, in order to meet these tasks, the Union needs a good

administration. However, what constitutes ‘good administration’ and how to achieve

it? The Charter of Fundamental Rights of the European Union (‘Charter’)5is one of

the recent initiatives that ventures to address this question.

This article will focus on the development of administrative human rights in the EU,

understood as fundamental rights specif‌ically designed to apply to the relation between

the citizen and the administration. Particular attention will be paid to the Charter,

which not only embraces classic political and civil rights,economic, social, and cultural

rights but extends to a new category of fundamental rights, namely administrative

rights. To put it in other words, the Charter constitutionalises fundamental principles

of administrative procedure to an extent unknown to the constitutions of the Member

States. It proclaims a right of every person to good administration. It is submitted that

this right, together with a right to an effective remedy and to a fair trial, create a more

general right to administrative justice. Administrative justice requires that the admin-

istration use its powers ‘justly’when dealing with the citizens,6and that the citizens have

eff‌icient mechanisms to enforce ‘just’ treatment. Since ‘justice’ cannot be precisely

def‌ined, certain minimal standards exist which have to be observed by the administra-

tion.7Consequently,administrative justice ‘has both ex ante and ex post elements’.8One

May 2004 Administrative Human Rights in the EU

© Blackwell Publishing Ltd. 2004 297

3Op. cit. note 1 supra.

4‘Laeken Declaration on the Future of the European Union’, 15.12.2001, SN 273/01.

5On 7 December 2000 at the Nice IGC, the European Parliament, the Council, and the European Com-

mission proclaimed the Charter of Fundamental Rights of the European Union (2000 OJ C 364/8). The

legal status of the Charter has not yet been determined. One of the tasks of the European Convention

was to propose possible solutions as regards the status of the Charter. A separate Working Group II,

chaired by A. Vitorino, was set up within the Convention to deal specif‌ically with the modalities of pos-

sible incorporation of the Charter into the Treaties and accession of the Community to the ECHR (see

the Final Report of Working Group II, 22.10.2002, CONV 354/02). Following the recommendations of

the Working Group, the Praesidium of the Convention decided that the Charter should have a consti-

tutional status and its content should not be altered (with the exception of some adjustments to the hor-

izontal provisions). The entire text of the Charter was included in Part II of the Draft Treaty Establishing

a Constitution for Europe adopted by consensus by the Convention and presented to the Thessaloniki

European Council on 20 June 2003. If the Draft Constitution is endorsed by the Intergovernmental Con-

ference, the Charter will become a constitutional catalogue of fundamental rights.

6D. Longley, R. James, Administrative Justice. Central Issues in UK and European Administrative Law

(Cavendish, 1998), 3: ‘[Administrative justice] is a fundamental principle that government—at all levels

and in all its manifestations—should act justly in its dealings with the public’.

7Cfr. A. W. Bradley,‘Administrative Justice:A Developing Human Right?’, (1995) 1 European Public Law

347, at 351.

8Longley and James, op.cit.note 6 supra,at 4.