Week 10

• General Principles of Administrative Law:

  • Tasks and competences of the administration have increased
  • More powers to regulate but also enjoy greater freedom in exercising these powers
  • Use of public power differs from one field of law to another
  • Tax Law: little discretionary power
  • Land-use plans: more discretionary power
• When taking a decision, the administration:

  • Is bound by the conditions and limits explicitly mentioned in the applicable general rules
  • Must respect fundamental rights of those affected by the decision
  • Must take general principles of administrative law into account
• General Principles of Administrative Law:

  • Originally developed in case law
  • Move towards codification
  • Administration has discretionary power but legal limits are imposed on its exercise
• Discretionary Power:

  • Refers to a freedom of choice on the part of a decision maker
  • Must be exercised by the person to whom it is given and not by anyone else
  • Decision maker must act responsibly and not arbitrarily
  • Every public power must be exercised responsibly and every public decision ought to be made reasonably
• Applying the general principles of administrative law protects the rights and interests of individuals against the abuse of public power and against an overemphasis on the general interest when public power is used
• Procedural Principles common to European systems:

  • Impartiality principle
  • Right to be heard
  • Principle to state reasons
• EU level procedural principles:

  • Impartiality principle
  • Right to be heard
  • Principle to state reasons
  • Subprinciples of Good Administration:
  • Early case law of the CJEU has referred to notions of ‘good’, ‘sound’, or ‘proper’ administration
  • Recognized as a General Principle of EU Law
  • Recognized as a binding fundamental right under Articles 41 CFR and 6(1) TEU
• Right to be heard includes:

  • Right to a fair hearing before any individual measure
  • Preparation of a hearing requires access to one’s file
  • Right to be informed
• Right of Access to Documents at EU Level:

  • General right of access to documents under Articles 42 CFR and 15(3) TFEU
  • Regulation 1049/2001 governs access to documents
  • Scope, beneficiaries, exceptions, and obligations to give reasons for decisions
• Obligation to give reasons for decisions:

  • Informs people affected by a decision of the substance of the decision
  • Ensures decision-makers carefully think about and justify their decisions
• Transparency of Information:

  • Sunshine laws or freedom of information acts make government-held information accessible to the public
  • Transparency is crucial for a fair and accountable administration and a functioning, participatory democracy