E-Book, Englisch, Band 7, 575 Seiten, Format (B × H): 153 mm x 227 mm
Reihe: Luxemburger Juristische Studien - Luxembourg Legal Studies
Mihaescu Evans The right to good administration at the crossroads of the various sources of fundamental rights in the EU integrated administrative system
1. Auflage 2015
ISBN: 978-3-8452-6798-2
Verlag: Nomos
Format: PDF
Kopierschutz: Adobe DRM (»Systemvoraussetzungen)
E-Book, Englisch, Band 7, 575 Seiten, Format (B × H): 153 mm x 227 mm
Reihe: Luxemburger Juristische Studien - Luxembourg Legal Studies
ISBN: 978-3-8452-6798-2
Verlag: Nomos
Format: PDF
Kopierschutz: Adobe DRM (»Systemvoraussetzungen)
This PhD thesis highlights the particular importance and vast potential of the right to good administration in the EU legal order and more particularly the capacity of this right of ensuring the procedural protection of individuals in the context of “composite” administrative proceedings. It also constitutes a contribution to the (polemic) debate on the difficult coexistence of the various sources of fundamental rights in the EU legal order. It highlights in this regard that there are instances where, even in relation to what might appear to be the same right, there are overlaps and sometimes clear differences as regards its content and level of protection according to its interpretation as a General Principle of EU Law (GPL) or as a fundamental right codified in the Charter of Fundamental Rights of the European Union (CFR).
This thesis undertakes an in-depth comparative assessment of the protection of good administration as a Charter’s right and as a GPL.
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1;Cover;1
2; Introduction;32
2.1; 1. Aims of the present study;35
2.2; 2. Approach of the thesis. Methods and sources;40
2.3; 3. Existing literature on the principle of good administration. Delimitation and input of the present contribution;42
2.4; 4. Outline of the thesis;47
3; Part 1. Background to the General Principle of Good Administration;50
3.1; I. Problematic aspects stemming from the confluence of the various sources of fundamental rights;50
3.1.1; A. The (problematic) coexistence of fundamental rights protected as both GPL and CFR rights;50
3.1.1.1; 1. Hierarchical approach;55
3.1.1.2; 2. Pluralistic approach;58
3.1.2; B. An alternative approach: the “lexical order of review”;60
3.1.3; C. Conclusions on the problematic aspects stemming from the confluence of GPL and CFR rights;63
3.2; II. Case study of the right to good administration as a GPL and as a CFR right;65
3.2.1; A. Development of the right to good administration into a GPL and a CFR right respectively;66
3.2.2; B. Content of the right to good administration in the EU legal order;73
3.2.2.1; 1. “Judicialisation” of the Administration;80
3.2.2.2; 2. Good administration as a counterweight to the discretionary powers of the administration: administrative efficiency versus individual’s procedural protection;89
3.2.2.3; 3. Good administration within EU “composite” administrative proceedings;92
3.2.2.3.1; a. Overview of the EU integrated administrative system and classification of the various “composite” administrative procedures;94
3.2.2.3.1.1; (1) The protection of the right to good administration in the context of “composite” proceedings where a Member State is implementing an EU act with input from one or more EU administrative authorities;100
3.2.2.3.1.2; (2) The protection of the right to good administration in the context of “composite” proceedings where a final decision is taken by an EU administrative authority on the basis of input from Member States’ authorities;104
3.2.2.3.1.3; (3) The protection of the right to good administration in the context of EU law implementation by the Commission with the input of the various “composite” Comitology committees;108
3.2.3; C. The scope of protection of good administration as a GPL and as a CFR right;111
3.2.3.1; 1. The personal scope of protection of good administration as a GPL and as a Charter’s right;111
3.2.3.1.1; a. Good administration at the confluence of its “subjective” and “objective” facets;112
3.2.3.1.2; b. Good administration: “principle” or “right” for the purposes of Articles 51(1) and 52(5) CFR?;118
3.2.3.1.3; c. Good administration: addressed to “every person” or merely to “EU Citizens”?;124
3.2.3.1.4; d. Good administration: a tool for protecting interested third parties in administrative proceedings?;126
3.2.3.2; 2. The material scope of protection of good administration as a GPL and as a Charter’s right;133
3.2.3.3; 3. The institutional scope of protection of good administration as a GPL and as a Charter’s right;136
3.2.3.3.1; a. The institutions, bodies, offices and agencies of the Union to which the right to good administration is addressed;137
3.2.3.3.2; b. The absence of the EU Member States from the institutional scope of application of Article 41 CFR and the more extensive protection provided under the GPL status of the notion;138
3.2.4; D. Conclusions on the right to good administration as a GPL and as a CFR right;145
4; Part 2. The Substance of the Right to Good Administration;154
4.1; I. “The right to be heard” as a sub-component of good administration;154
4.1.1; A. The right to be heard in the EU legal order and its interrelation with the right to good administration;155
4.1.1.1; 1. Roots and development of the right to be heard in the EU legal order;155
4.1.1.2; 2. The right to be heard as part of the defence rights and as a sub-element of the right to good administration respectively: interrelation between these two “umbrella” notions;159
4.1.2; B. The codification of the right to be heard in Article 41 CFR: the protection of the right to be heard as a GPL and as a Charter’s right;161
4.1.2.1; 1. The personal scope of protection of the right to be heard as a Charter’s right and as a GPL;161
4.1.2.1.1; a. The “initiated against” condition for the purposes of the right to be heard as a Charter’s right and as a GPL;162
4.1.2.1.2; b. The “adversely affected” condition for the purposes of the right to be heard, as a Charter’s right and as a GPL;168
4.1.2.1.2.1; (1) The right to be heard of an interested third party in administrative proceedings: criteria;169
4.1.2.1.2.2; (2) What does the “adversely affected” requirement mean in practice? The example of the measures by which OLAF transmits information to the national authorities;172
4.1.2.2; 2. The material scope of protection of the right to be heard as a Charter’s right and as a GPL;176
4.1.2.3; 3. The institutional scope of protection of the right to be heard as a Charter’s right and as a GPL;179
4.1.3; C. The right to be heard as part of the right to good administration in the EU composite administrative proceedings;181
4.1.4; D. Conclusions on the interrelation between the right to be heard and good administration;187
4.2; II. “The right of access to the file/documents” as a sub-component of good administration;193
4.2.1; A. The right of access to the file and the right of access to documents in the EU legal order and their respective interrelation with the right to good administration;194
4.2.1.1; 1. The respective interconnections between the right of access to the file/the right of access to documents and the right to good administration;195
4.2.1.1.1; a. Interlinks between the right of access to the file and the right to good administration;195
4.2.1.1.1.1; (1) Roots and development of the right of access to the file in the EU legal order;195
4.2.1.1.1.2; (2) The right of access to the file as part of the defence rights and as a sub-component of the right to good administration: status of the notion;199
4.2.1.1.1.2.1; (i) The right of access to the file and the the rights of the defence;199
4.2.1.1.1.2.2; (ii) The right of access to the file and good administration;201
4.2.1.1.2; b. Interlinks between the right of access to documents and the right to good administration;203
4.2.1.1.2.1; (1) Roots and development of the right of access to documents in the EU legal order;203
4.2.1.1.2.2; (2) The status of the right of access to documents;205
4.2.1.1.2.3; (3) Interrelation between the right of access to documents and the right of access to the file;208
4.2.1.1.2.3.1; (i) The (polemic) articulation between the right of access to documents and the right of access to the file;208
4.2.1.1.2.3.2; (ii) The articulation between the right of access to documents and the right of access to the file at the confluence of their (respective secondary legislations’) sources;211
4.2.1.1.2.3.3; (iii) The right to good administration as a means to ensure the articulation between conflicting legislations – case study of Regulation 1049/2001 v Regulation 45/2001;217
4.2.1.1.2.4; (4) The right of access to documents and the right to good administration;223
4.2.2; B. The codification of the right of access to the file and the right of access to documents in the Charter: their respective protection as GPL and as CFR rights;230
4.2.2.1; 1. The personal scope of protection of the right of access to the file and the right of access to documents: personal scope in the CFR v its protection as a GPL;230
4.2.2.2; 2. The material scope of protection of the right of access to the file and the right of access to documents: material scope in the CFR v material scope stemming from the GPL status;233
4.2.2.3; 3. Institutional scope of protection: the right of access to the file and the right of access to documents: institutional scope in the CFR v institutional scope flowing from the GPL status;236
4.2.2.3.1; a. The protection of the right to of access to the file and the right of access to documents by the institutions, bodies, offices and agencies of the Union;237
4.2.2.3.2; b. The protection of the right of access to the file and the right of access to documents by the EU Member States;240
4.2.3; C. The right of access to the file and the right of access to documents in the EU composite administrative proceedings;244
4.2.4; D. Conclusions on the interrelation between the right of access to the file / the right of access to documents and good administration;253
4.3; III. “The obligation of the administration to give reasons for its decisions” as a sub-component of good administration;260
4.3.1; A. The obligation of the administration to give reasons for its decisions in the EU legal order and interrelation with the right to good administration;261
4.3.1.1; 1. Roots and development of the obligation of the administration to give reasons for its decisions in the EU legal order;261
4.3.1.2; 2. The obligation of the administration to give reasons for its decisions and the rights of the defence;265
4.3.1.3; 3. The obligation of the administration to give reasons for its decisions and the right to effective judicial review: the “statement of reasons” requirement at the confluence of the administrative and judicial levels;270
4.3.1.4; 4. The obligation of the administration to give reasons for its decisions and the right to good administration;272
4.3.2; B. The protection of the obligation of the administration to give reasons for its decisions as a GPL v its codification in Article 41 CFR;275
4.3.2.1; 1. The personal scope of protection of the administration’s obligation to give reasons for its decisions under the CFR v its protection as a GPL;276
4.3.2.2; 2. The material scope of protection of the administration’s obligation to give reasons for its decisions under the CFR v its protection as a GPL;278
4.3.2.3; 3. Institutional scope of protection of the administration’s obligation to give reasons for its decisions under the CFR v its protection as a GPL;282
4.3.3; C. The obligation of the administration to give reasons for its decisions as part of the right to good administration in composite administrative proceedings;288
4.3.4; D. Conclusions on the interrelation between the obligation of the administration to give reasons for its decisions and good administration;291
4.4; IV. “The right to languages” as a sub-component of good administration;295
4.4.1; A. The right to languages at the confluence of its “subjective” and “objective” facets and its interrelation with the right to good administration;298
4.4.1.1; 1. Roots and development of the right to languages in the EU legal order in its various “objective” facets;298
4.4.1.2; 2. Roots and development of the right to languages as a “subjective” right of individuals in the EU legal order;302
4.4.1.3; 3. Language rights and the right to good administration;307
4.4.2; B. The protection of language rights in the EU Courts’ case-law v its protection as a sub-element of the right to good administration in Article 41 CFR;309
4.4.2.1; 1. The personal scope of protection of the right to languages in the EU Courts’ case-law v its protection as a sub-element of the right to good administration in Article 41 CFR;310
4.4.2.1.1; a. Language rights of EU minorities;310
4.4.2.1.2; b. Language rights of EU officials;313
4.4.2.2; 2. The material scope of protection of the right to languages in the EU Courts’ case-law v its protection as a sub-component of the right to good administration in Article 41 CFR;315
4.4.2.3; 3. The institutional scope of protection of the right to languages in the EU Courts’ case-law v its protection as a sub-element of the right to good administration in Article 41 CFR;317
4.4.3; C. The protection of language rights in the context of composite administrative proceedings;321
4.4.3.1; 1. The protection of individuals’ language rights at the crossroads of two or more EU Member States;321
4.4.3.2; 2. The protection of language rights in the context of EU law implementation by the institutions of the Union following the advice of the various Comitology Committees;325
4.4.4; D. Conclusions on the interrelation between the right to languages and good administration;327
4.5; V. “The right to damages” as a sub-component of good administration;332
4.5.1; A. The right to damages and its interrelation with the right to good administration;333
4.5.1.1; 1. Roots and development of the right to damages in the EU legal order and interlink with the right to good administration;335
4.5.1.1.1; a. The status of the right to damages;335
4.5.1.1.2; b. “Fault” requirement v “general principles common to the laws of the Member States” as a pre-condition to confer a remedy for infringement of the principles of good administration;337
4.5.1.2; 2. A right to damages for infringement of the principles of good administration in the EU Courts’ case-law;341
4.5.1.2.1; a. Breach of the principle of good administration conferring a right to reparation upon individuals;341
4.5.1.2.2; b. Infringement of the various sub-components of the right to good administration conferring a right to reparation upon individuals;347
4.5.1.2.2.1; (1) Breach of the “reasonable time” requirement conferring a right to reparation upon individuals;348
4.5.1.2.2.2; (2) Breach of the “impartiality” requirement conferring a right to reparation upon individuals;351
4.5.1.2.2.3; (3) Breach of the “confidentiality” requirement conferring a right to reparation upon individuals;353
4.5.1.2.2.4; (4) Breach of the “right to be heard” conferring a right to reparation upon individuals;356
4.5.1.2.2.5; (5) Breach of the “statement of reasons” requirement conferring a right to reparation upon individuals;358
4.5.1.3; 3. The “contractual” liability of the Union for breach of the right to good administration;360
4.5.2; B. Protection of the right to damages under the EU Courts’ case-law v its protection as a sub-component of the right to good administration in Article 41 CFR;370
4.5.2.1; 1. Personal scope of protection of the right to damages in the EU Courts’ case-law v its protection under the Charter;370
4.5.2.1.1; a. Liability of the Union for the acts of its civil servants in the performance of their duties;372
4.5.2.1.2; b. Liability of the Union for damage caused to its own civil servants – as a consequence of the violation of their right to good administration;373
4.5.2.2; 2. Material scope of protection of the right to damages in the EU Courts’ case-law v its protection under the Charter;375
4.5.2.3; 3. Institutional scope of protection of the right to damages in the EU Courts’ case-law v its protection under the Charter;379
4.5.3; C. The right to damages as part of the right to good administration in the EU composite administrative proceedings;383
4.5.4; D. Conclusions on the interrelation between the right to damages and good administration;387
4.6; VI. “The principle of care” as a sub-component of good administration;393
4.6.1; A. The principle of care in the EU legal order: origins, definitions, confusing terminology and status;395
4.6.1.1; 1. Respective interrelations between the right to good administration and the principles of “care”, “diligence” and “solicitude”;399
4.6.1.1.1; a. Principle of care: definition, scope of application and interrelation with the right to good administration;399
4.6.1.1.2; b. Principle of diligence: definition, scope of application and interrelation with the right to good administration;402
4.6.1.1.3; c. Principle of solicitude: definition, scope of application and interrelation with the right to good administration;406
4.6.1.2; 2. Status of the “individuals’ right to have their affairs handled impartially, fairly and within a reasonable time”/ principles of “care”/“diligence”/“solicitude”;411
4.6.2; B. The codification of the principle of care in Article 41(1) CFR: analysis of the “impartiality”, “fairness” and “reasonable time” requirements as sub-components of good administration;413
4.6.2.1; 1. The principle of impartiality;414
4.6.2.1.1; a. Origins and development of the “impartiality” requirement in the EU legal order;414
4.6.2.1.2; b. The respect of the “impartiality” requirement in the context of administrative proceedings;419
4.6.2.1.3; c. Status of the “impartiality” requirement and interrelation with the right to good administration;423
4.6.2.2; 2. The principle of fairness;428
4.6.2.2.1; a. Fairness: origins and development in the EU legal order;428
4.6.2.2.2; b. Status of the “fairness” principle and its interrelation with the right to good administration;432
4.6.2.3; 3. Reasonable time;435
4.6.2.3.1; a. Reasonable time: origins and development in the EU legal order;436
4.6.2.3.1.1; (1) “Reasonable time” determined by the circumstances of the case: the criteria serving to establish the reasonableness of a time-frame;438
4.6.2.3.1.2; (2) Some examples of “reasonable time” in EU administrative proceedings;440
4.6.2.3.2; b. Should a “global assessment” of the time-frames of the various administrative and judicial proceedings supplement the “piecemeal” way of assessing the reasonableness of the respective procedures’ lengths?;442
4.6.2.3.3; c. Status of the “reasonable time” requirement and interrelation with the right to good administration;454
4.6.3; C. The “individuals’ right to have their affairs handled impartially, fairly and within a reasonable time” / the “principle of care” in composite administrative proceedings;463
4.6.4; D. Conclusions on the interrelation between the principle of care and good administration;464
5; Final Conclusions;470
5.1; 1. The right to good administration at the confluence of its protection as a GPL and as a CFR right;472
5.1.1; a. Personal scope of protection of good administration as a CFR right and as a GPL;473
5.1.2; b. Material scope of protection of good administration as a CFR right and as a GPL;474
5.1.3; c. Institutional scope of protection of good administration as a CFR right and as a GPL;474
5.2; 2. Sub-principles of the right to good administration and implications stemming from their juxtaposition;476
5.2.1; a. Sub-principles of the right to good administration;476
5.2.2; b. Implications stemming from the juxtaposition of the various sub-principles of the right to good administration;478
5.3; 3. Substance of the right to good administration and other interrelated issues which highlight the importance of the right to good administration in the EU legal order;480
5.3.1; a. The right to be heard as a sub-component of good administration;480
5.3.1.1; (1) The rights of the defence and good administration;481
5.3.1.2; (2) The “personal”, “material” and “institutional” scope of the right to be heard as a GPL and as a sub-component of good administration in Article 41 CFR;481
5.3.1.3; (3) The protection of the right to be heard in “composite” administrative proceedings;484
5.3.2; b. The right of access to the file documents as a sub-component of good administration;484
5.3.2.1; (1) The right to good administration as a means to ensure the articulation between the right of access to the file and the general right of access to documents;485
5.3.2.2; (2) The “personal”, “material” and “institutional” scope of the right of access to the file documents Sas a GPL and as a sub-component of good administration in Article 41 CFR;487
5.3.2.3; (3) The protection of the right of access to the file documents in “composite” administrative proceedings;489
5.3.3; c. The obligation of the administration to give reasons for its decisions as a sub-component of good administration;490
5.3.3.1; (1) The “personal”, “material” and “institutional” scope of the obligation of the administration to give reasons for its decisions as a GPL and as a sub-component of good administration in Article 41 CFR;491
5.3.3.2; (2) The protection of the obligation of the administration to give reasons for its decisions in “composite” administrative proceedings;492
5.3.4; d. The right to languages as a sub-component of good administration;493
5.3.4.1; (1) The “personal”, “material” and “institutional” scope of the right to languages as a GPL and as a sub-component of good administration in Article 41 CFR;494
5.3.4.2; (2) The protection of the right to languages in “composite” administrative proceedings;497
5.3.5; e. The right to damages as a sub-component of good administration;497
5.3.5.1; (1) The protection of the right to good administration in contractual matters;498
5.3.5.2; (2) The “personal”, “material” and “institutional” scope of the right to damages as a GPL and as a sub-component of good administration in Article 41 CFR;500
5.3.5.3; (3) The protection of the right to damages in “composite” administrative proceedings;501
5.3.6; f. The principles of care/diligence/solicitude as sub-components of good administration;503
5.3.6.1; (1) The principles of care/diligence/solicitude: definition and scope of application of these particular sub-components of good administration;504
5.3.6.1.1; (i) Principle of care;504
5.3.6.1.2; (ii) Principle of diligence;505
5.3.6.1.3; (iii) Principle of solicitude;506
5.3.6.2; (2) The codification of the principle of care in Article 41(1) CFR: analysis of the “impartiality”, “fairness” and “reasonable time” requirements as sub-components of good administration;507
5.3.6.2.1; (i) The “impartiality” and “fairness” requirements as sub-components of good administration;508
5.3.6.2.2; (ii) The “reasonable time” requirement as sub-component of good administration: need for a “global” assessment of the respective time-frames of the various administrative and judicial steps to a procedure;509
5.4; 4. Final conclusions;511
6; Bibliography;512
6.1; Legal writings;512
6.2; Conferences, Congress and Studies;531
6.3; Table of Case-law (in case number order);532
6.4; Opinions of the Advocates General of the CJEU;543
6.5; Case-law of the General Court of the EU;547
6.6; Case-law of the Civil Service Tribunal of the EU;556
6.7; Case-law of the European Court of Human Rights;558
6.8; National case-law:;559
6.9; Table of International Legal Acts;560
6.10; European Resolutions and Recommendations;560
6.11; Table of Legal Acts of the EU;561
6.12; Regulations;561
6.13; Directives;563
6.14; Decisions;564
6.15; Resolutions, Declarations, Communications, Preliminary Workings and Reports of the EU;565
6.16; Codes of Conduct, Rules and Guidelines of the EU;566
7; Index;568
