Good Administration and the Council of Europe

The sources of the pan-European general principles on state liability are (1.) Article 5 (5) and Article 41 ECHR, (2.) Article 5 of the CoE Civil Law Convention on Corruption (ETS No. 174) and, above all, (3.) the principles enshrined in the CoE Recommendation of the Committee of Ministers No. R (84) 15 relating to public liability which are (4.) synthetised in Article 23 of Recommendation CM/Rec(2007)7 on good administration. A survey of these sources and their respective explanatory memoranda give a clear idea of what ‘CoE minimum standards‘ of state liability law should be. Surprisingly, however, these documents (as well as the pertinent comparative research) contain only limited and veiled information about the functions and the reasons for state liability and why it is considered as an important component of the rule of law. The presentation will explore whether the pan-European ideas about the functions and purpose of state liability can nevertheless be discerned. 

The normative substance of the pan-European general principles on judicial review in administrative matters stems from the various legal acts developed within the framework of the Council of Europe. Even though these sources concern different features making up the entirety of the normative content of the pan-European general principles, the notion of effectiveness constitutes a recurring theme in the reading of many of them. It seems that the concept of effectiveness accurately reflects the core objective and function of various aspects comprising the pan-European general principles and it is worth studying its precise influence on the process of their constant development. My aim is thus to explore to what extent the principle of effectiveness informs the various legal components of the pan-European general principles on judicial review in administrative matters, and what follows, has direct impact at the content thereof.

The pan-European principles of good administration found in the Council of Europe (CoE) legal framework have an organisational dimension. These principles on administrative organisation are the result of some conventions, recommendations of the Committee of Ministers (e.g. Recommendation CM/Rec(2007)7 on good administration) and of ECtHR case law. From this body of law, several general principles emerge, including the ultra vires doctrine, the principles of subsidiarity, transparency, democratic accountability, and good governance. The protection of the rights of the consumers of public goods and of workers is also important. Finally, the recognition by the ECtHR of the emergence from the ECHR of positive duties to the States (procedural and substantive) has consequences in the structure of its‘ public administrations. The States party to the ECHR must have an administrative apparatus able to ensure its enforcement. This organizational framework will be presented and analysed.

NA - Discussant