THE MODERNISATION OF

ADMINISTRATIVE LAW AND

GOOD GOVERNANCE

Prof. Dr. G.H. Addink

Elements of my presentation
Introduction: dichotomy in administrative law
Trends in innovation administrative law
Good Governance: institutional and
substantial administrative law developments
Principles of Good Governance on several
levels
National level developments: Principles of
Proper administration: constitution, unwritten
judicial principles, codification in general
administrative law act
Internal developments: codes of good
administration
External developments: right to good
administration
Conclusions

Introduction

Administrative law: two lines (dichotomy)

The position of the administration, the
internal perspective: different developments
The position of the citizens, the external
perspective: different developments
Both fixed on the administrative law norms for
the administration: different developments
Administrative on different levels: national norms
but also more regional and international norms
Which norms exactly and how bring them together?
Conclusions

Trends in innovation administrative law

Classical approach: administrative law is specified
constitutional law with fixation on the law
In a modern state this is a to restrictive approach for
the administration and for the citizens
Different European countries discussion about
innovation of administrative law: Schmidt Assmann
(Heidelberg), Auby (Paris II), Craig (Oxford) but also
in Spain (Javier Barnes-Madrid, Sole PonceBarcelona)
Main points in this discussion: Growing role of the
steering character of the general law in administrative
law; specification of constitutional norms; direct link
with specific (functional fields of) administrative law

Good Governance: institutional and substantial

developments (I)
The national State: 3 powers, from separation to
balancing powers
Growing importance of the fourth independent
powers: Ombudsman, Court of Audit
The national State: democratic rule of law;
- the rule of law (rechtsstaat) principle worked out in
the following 4 aspects: legality, balancing powers,
independent judiciary and protecting human rights
- the democracy principle: elections, transparency and
participation of citizens

Good Governance: institutional and substantial

developments (II)
Focus Principles of Good Governance
Differences between Principles of Good Governance,
Principles of Good Administration and Principles of
Corporate Governance
Good Governance: Good Legislation, Good
Administration and Good Judiciary
Principles of Good Administration direct linked to
Principles of Democratic Rule of Law
6 Principles of Good Administration: principles of
proper administration, transparent administration,
participative administration, effective administration,
accountable administration and human rights
administration

Principles of Good Governance on several levels

National: central, departmental, local

Regional: EU, EAC, ASEAN, Mercosur etc.

International:
- World Bank
- IMF
- UNDP
- WTO
More interaction between the levels: no separate levels
but each level is influencing the other levels

National level: Principles of Proper administration

On national level different types of development of
Principles of Proper Administration
Germany: in constitution some general principles and
application by the court
France: stronger development of principles by the
courts
Netherlands: some principles in constitution, active
development of principles by the courts, codification
of principles in general administrative law act
Other Principles of Good Administration are worked
out in specific legislation, case law and international
regulation

Regional and international developments on

Principles of Good Administration (I)
On European level two types of institutions: European
Union and Council of Europe
European Union started as an Economic Union but
nowadays there is much more of integration including
the monetary integration (Euro)
EU has its own legal framework and institutions but
partly the implementation is done on national level
Council of Europe is more focus on harmonisation of
human rights and good governance on national level
Council of Europe can only make recommendations to
the member states
A part of the Council is the European Court on Human
Rights

Regional and international developments on

Principles of Good Administration (II)
On EU level the Code of Good Administrative
behavior: developed by the European Ombudsman,
fixed by the European Parliament as an example for all
European institutions
Elements: lawfulness, absence of discrimination,
proportionality, absence of abuse of power,
impartiality and independence, objectivity, legitimate
expectations, consistency, fairness, courtesy, reply to
letters, acknowledgement of receipt, obligation
transfer to competent institution, right to be heard and
make statements, reasonable time-limit of taking
decisions, duty to state grounds, indication possibility
of appeal, notification of decision, data protection,
request for information, request for public access to
documents, keeping adequate records

Regional and international developments on

Principles of Good Administration (III)
On Council of Europe level: the recommendation to
member states on good administration including the
Code of Good Administration; recommendation is to
make a general legal instrument
Elements: lawfulness, principles of equality, principle
of impartiality, principle of proportionality, principle
of legal certainty, principle taking action within
reasonable time, principle of participation, principle of
respect for privacy; specific related to decisions:
request from private persons, right of private persons
to be heard, right of private persons to be involved,
contribution of private persons to costs, form of
administrative decisions, publication of administrative
decisions, entry into force, execution, change, appeals
against decisions, compensation

External developments: right to good administration

2000: Charter of Fundamental rights European Union
Article 41: a specified subjective right to good
administration for every person
Article 43: any citizen right to complaint Ombudsman
European Ombudsman is applying the code of good
administrative behaviour
European Court of Justice is applying the principles of
good administration
European Lisbon treaty EU: codified and enforceable
right to good administration

Conclusions
General Administrative Law:
In several countries there is a discussion about a
right-oriented innovation of administrative law
This innovation is fixed on steering character of
general administrative law, specification of the norms
for the administration and direct link and interaction
with the specific fields of administrative law
Principles of Good Administration:
Development from proper administration to Principles
of Good Administration
Distinguishing between Good Governance, Good
Administration and Corporate Governance
On national and regional level development to a
specification of these principles in a Code of Good
Administration
On regional level fundamental right to good
administration