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The Pan-European General Principles on Spatial Planning
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on Spatial Planning
II. Spatial Planning as a Policy, its Concepts and its Characteristics
IV. Spatial Planning, Administrative Procedure and Participation
V. Spatial Planning and Judicial Review
I. Scope of the Pan-European General Principles on Spatial Planning
The scope of the pan-European general principles on spatial planning covers all 'spatial planning decisions' regardless of their 'legal nature' in the domestic legal system.
'Spatial planning decisions' are decisions of a public authority that harmonise, expand or restrict the possibilities of using specific plots of land located in the planning area and thereby have an impact on the rights and interests of property owners, authorised users or neighbouring residents. They may be (formally) enacted as a regulation, as a bylaw (municipal statute), as an administrative guideline or as a single case decision (affecting a large number of persons) and are therefore defined only by their content and not by their form. Hence, depending on the domestic law, spatial planning decisions may be (formally) enacted as a regulation, as a bylaw (municipal statute), as an administrative guideline, or as a single case decision (affecting a large number of persons). Different spatial planning decisions may also have different forms within the same domestic legal system depending on 'specialised administrative law'.
Nevertheless, 'spatial planning decisions' are generally subject to a special (procedural) regime which should not be easily equated with either the 'general' procedural regime applicable to administrative rulemaking or the 'general' procedural regime applicable to individual decisions.
Compare, e. g., for a similar concept (regarding the applicability of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment) ECJ [GC], judgement Bund Naturschutz in Bayern eV v. Landkreis Rosenheim (C-300/20) 22 February 2022:
"40. The Rural District of Rosenheim and the Public Prosecutor’s Office for the Land of Bavaria nonetheless maintain that, in any event, a regulation such as the Inntal Süd Regulation constitutes neither a ‘plan’ nor a ‘programme’ because general and abstract provisions laying down general requirements for an undefined number of situations cannot fall within the scope of Directive 2001/42.
41. In that regard, however, it should be borne in mind that the general nature of the measures at issue does not preclude those measures from being classified as ‘plans and programmes’ within the meaning of Article 2(a) of that directive. While it is clear from the wording of that provision that the concept of ‘plans and programmes’ can cover normative acts that are legislative, regulatory or administrative, that directive does not contain any special provisions in relation to policies or general legislation that would call for them to be distinguished from plans and programmes for the purpose of that directive. The fact that a national measure is to some extent abstract and pursues an objective of transforming an existing geographical area is illustrative of its planning and programming aspect and does not prevent it from being included in the concept of ‘plans and programmes’ (judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele), C‑24/19, EU:C:2020:503, paragraph 61 and the case-law cited)."
For the delineation of the scope of the pan-European general principles of spatial planning to the scope of the pan-European general principles on administrative rules and administrative rulemaking click here.
II. Spatial Planning as a Policy, its Concepts and its Characteristics
1. Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT)
1. Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT)
Auto-Description of CEMAT:
"The Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT) brings together representatives of the 47 Council of Europe member states in pursuit of a shared objective: the promotion of the territorial dimension of human rights and democracy for a sustainable spatial development of the European Continent.
The Council of Europe’s activities relating to spatial planning began in 1970 in Bonn with the first European Conference of Ministers responsible for Regional Planning. They originated in concerns raised from the early 1960s by the then Consultative Assembly of the Council of Europe, which were reflected in the presentation in May 1968 of a historic report on Spatial /Regional planning "A European problem".
Seventeen Council of Europe specialised ministerial conferences CEMAT, prepared under the request of the Committee of Ministers of the Council of Europe on the invitation of one of its members states by the Committee of Senior Officials of the CEMAT, have to date been organised by the Secretariat of the Council of Europe."
For the subjects and the resolutions of the 17th CEMAT Conferences click here
In 2007, the "Council of Europe CEMAT glossary of key expressions used in spatial development policies in Europe" has been publsihed (cf. CoE (ed.), Spatial development glossary (2007)). It was part of the Working Programme of the Committee of Senior Officials and presented at the 14th Session of the European Conference of Ministers responsible for Spatial/Regional Planning, Lisbon (Portugal), 26-27 October 2006 on "Networks for sustainable spatial development of the European continent: Bridges over Europe". It is addressed to officials, professionals and representatives of the civil society involved in territorial development policies and related activities.
In this glossary, a sort of definition of "spatial planning" can be found under the keyword "Integrated planning":
"Integrated planning (as opposed to sectoral planning) is a process involving the drawing together of level and sector specific planning efforts which permits strategic decision-making and provides a synoptic view of resources and commitments. Integrated planning acts as a focal point for institutional initiatives and resource allocation. In the context of integrated (or comprehensive) planning, economic, social, ecological and cultural factors are jointly used and combined to guide land- and facility-use decisions towards sustainable territorial development."
2. Recommendation No. R (84)2 of the of the Committee of Ministers to member state on the European Regional/Spatial Planning Charter (Torremolinos Charter)
"The Committee of Ministers, [...].
Convinced that in order to achieve co-operation in this field it is necessary to analyse national, regional and local conceptions of regional/spatial planning with a view to the adoption of common principles (designed, in particular, to reduce regional disparities) and hence to the achievement of a better general conception of the use and organisation of space, the distribution of activities, environmental protection and the improvement of the quality of life;
Convinced that the radical changes which have occurred in the economic and social patterns of the European countries and in their relations with other parts of the world make it necessary to review the principles governing the organisation of space in order to ensure that they are not formulated solely on the basis of short-term economic objectives without due consideration for social, cultural and environmental factors;
Considering that the objectives of regional/spatial planning necessitate new criteria for the choice of the direction in which technical progress is pursued and the use to which it is put, and that these criteria need to be in keeping with economic, social and environmental requirements;
Convinced that all European citizens should have the opportunity in an appropriate institutional framework to take part in the devising and implementation of all regional/spatial planning measures [...].
Recommends that the governments of member states:
a. base their national policies on the principles and objectives set out in the European Regional/Spatial Planning Charter prepared and adopted by the European Conference of Ministers responsible for Regional Planning and appended to this recommendation;
b. [...]"
The European Regional/Spatial Planning Charter (Appendix to Recommendation No. R (84)2) states
- on the concept of regional/spatial planning:
"Regional/spatial planning gives geographical expression to the economic, social, cultural and ecological policies of society.It is at the same time a scientific discipline, an administrative technique and a policy developed as an interdisciplinary and comprehensive approach directed towards a balanced regional development and the physical organisation of space according to an overall strategy."
- on the characteristics of regional/spatial planning:
"Man and his well-being as well as his interaction with the environment are the central concerns of regional/spatial planning, its aims being to provide each individual with an environment and quality of life conducive to the development of his personality in surroundings planned on a human scale.
Regional/spatial planning should be democratic, comprehensive, functional and orientated towards the longer term.
Democratic: it should be conducted in such a way as to ensure the participation of the people concerned and their political representatives,
Comprehensive: it should ensure the co-ordination of the various sectoral policies and integrate them in an overall approach,
Functional: it needs to take account of the existence of regional consciousness based on common values, culture and interests sometimes crossing administrative and territorial boundaries, while taking account of the institutional arrangements of the different countries,
Long-term orientated: it should analyse and take into consideration the long-term trends and developments of economic, social, cultural, ecological and environmental phenomena and interventions."
- on the operation of regional/spatial planning:
"Any regional/spatial planning policy, at whatever level, must be based on active citizen participation.
It is essential that the citizen be informed clearly and in a comprehensive way at all stages of the planning process and in the framework of institutional structures and procedures."
Following the European Regional/Spatial Planning Charter (Appendix to Recommendation No. R (84)2) the fundamental objectives of regional/spatial planning are "balanced socio-economic development of the regions", "improvement of the quality of life", "responsible management of natural resources and protection of the environment", and "rational use of land". The implementation of regional/spatial planning objectives "is essentially a political matter" which "seeks co-ordination between the various sectors", "facilitates co-ordination and co-operation between the various levels of decision-making and the equalisation of financial resources."
III. (Substantive) Right(s) to a Fair Balance of Interests in Spatial Planning in the Case Law of the ECtHRECtHR, judgement Powell and Rayner v. the United Kingdom (9310/81) 21 February 1990 (on noise exposure in the neighbourhood of Heathrow airport):
"41. Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 (art. 8-1) or in terms of an "interference by a public authority" to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention [...]. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8 (art. 8-1), "in striking [the required] balance the aims mentioned in the second paragraph (art. 8-2) may be of a certain relevance." [...].
42. As the Commission pointed out in its admissibility decisions, the existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft have without question become necessary in the interests of a country’s economic well-being. According to the uncontested figures supplied by the Government, Heathrow Airport, which is one of the busiest airports in the world, occupies a position of central importance in international trade and communications and in the economy of the United Kingdom [...].. The applicants themselves conceded that the operation of a major international airport pursued a legitimate aim and that the consequential negative impact on the environment could not be entirely eliminated.
43. A number of measures have been introduced by the responsible authorities to control, abate and compensate for aircraft noise at and around Heathrow Airport, including aircraft noise certification, restrictions on night jet movements, noise monitoring, the introduction of noise preferential routes, runway alternation, noise-related landing charges, the revocation of the licence for the Gatwick/Heathrow helicopter link, a noise insulation grant scheme, and a scheme for the purchase of noise-blighted properties close to the Airport [...]. These measures, adopted progressively as a result of consultation of the different interests and people concerned, have taken due account of international standards established, developments in aircraft technology, and the varying levels of disturbance suffered by those living around Heathrow Airport. [...].
44. On the other hand, section 76(1) of the Civil Aviation Act 1982 limits the possibilities of legal redress open to the aggrieved person [...]. However, it is to be noted that the exclusion of liability in nuisance is not absolute: it applies only in respect of aircraft flying at a reasonable height and in accordance with the relevant regulatory provisions, including the Air Navigation (Noise Certification) Order 1987 [...].
Since a forerunner of section 76(1) was enacted in 1949, successive Governments in the United Kingdom have proceeded on the view that the problems posed by aircraft noise are in general better dealt with by taking and enforcing specific regulatory measures to ensure that disturbance caused by aircraft noise is minimised, to the exclusion of having the matter settled by the case-law of the courts on the general criterion of reasonableness in any actions for nuisance which might be brought at common law. It is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation. It is not without significance that the provisions of section 76(1) are comparable to those of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface [...].
45.In view of the foregoing, there is no serious ground for maintaining that either the policy approach to the problem or the content of the particular regulatory measures adopted by the United Kingdom authorities gives rise to violation of Article 8 (art. 8), whether under its positive or negative head. In forming a judgment as to the proper scope of the noise abatement measures for aircraft arriving at and departing from Heathrow Airport, the United Kingdom Government cannot arguably be said to have exceeded the margin of appreciation afforded to them or upset the fair balance required to be struck under Article 8 (art. 8). [...].
ECtHR, judgement López Ostra v. Spain (16798/90) 9 December 1994 (on toleration of water pollution by a tannery):
"51. Naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.
Whether the question is analysed in terms of a positive duty on the State - to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 (art. 8-1) -, as the applicant wishes in her case, or in terms of an "interference by a public authority" to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8 (art. 8-1), in striking the required balance the aims mentioned in the second paragraph (art. 8-2) may be of a certain relevance [...].
52. It appears from the evidence that the waste-treatment plant in issue was built by SACURSA in July 1988 to solve a serious pollution problem in Lorca due to the concentration of tanneries. Yet as soon as it started up, the plant caused nuisance and health problems to many local people [...]
Admittedly, the Spanish authorities, and in particular the Lorca municipality, were theoretically not directly responsible for the emissions in question. However, as the Commission pointed out, the town allowed the plant to be built on its land and the State subsidised the plant’s construction [...].
53. The town council reacted promptly by rehousing the residents affected, free of charge, in the town centre for the months of July, August and September 1988 and then by stopping one of the plant’s activities from 9 September [...]. However, the council’s members could not be unaware that the environmental problems continued after this partial shutdown [...]. This was, moreover, confirmed as early as 19 January 1989 by the regional Environment and Nature Agency’s report and then by expert opinions in 1991, 1992 and 1993 [...].
55. On this issue the Court points out that the question of the lawfulness of the building and operation of the plant has been pending in the Supreme Court since 1991 [...]. The Court has consistently held that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law [...].
At all events, the Court considers that in the present case, even supposing that the municipality did fulfil the functions assigned to it by domestic law [...], it need only establish whether the national authorities took the measures necessary for protecting the applicant’s right to respect for her home and for her private and family life under Article 8 (art. 8) [...].
56. It has to be noted that the municipality not only failed to take steps to that end after 9 September 1988 but also resisted judicial decisions to that effect. In the ordinary administrative proceedings instituted by Mrs López Ostra’s sisters-in-law it appealed against the Murcia High Court’s decision of 18 September 1991 ordering temporary closure of the plant, and that measure was suspended as a result [...].
Other State authorities also contributed to prolonging the situation. [...].
57. The Government drew attention to the fact that the town had borne the expense of renting a flat in the centre of Lorca, in which the applicant and her family lived from 1 February 1992 to February 1993 [...].
The Court notes, however, that the family had to bear the nuisance caused by the plant for over three years before moving house with all the attendant inconveniences. They moved only when it became apparent that the situation could continue indefinitely and when Mrs López Ostra’s daughter’s paediatrician recommended that they do so [...]. Under these circumstances, the municipality’s offer could not afford complete redress for the nuisance and inconveniences to which they had been subjected.
58. Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being - that of having a waste-treatment plant - and the applicant’s effective enjoyment of her right to respect for her home and her private and family life.
There has accordingly been a violation of Article 8 (art. 8).
ECtHR, judgement Buckley v. United Kingdom (20348/92) 25 September 1996 (on a refusal to grant a permanent planning permission for the residential use of three caravans):
"62. According to the Government, the measures in question were taken in the enforcement of planning controls aimed at furthering highway safety, the preservation of the environment and public health. The legitimate aims pursued were therefore public safety, the economic well-being of the country, the protection of health and the protection of the rights of others. The Commission accepted this in substance but noted that the aspect of highway safety, which figured prominently in the Council's decisions of 8 March 1990, the inspector's report of 14 February 1991 and, by implication, the Secretary of State's decision of 16 April 1991 [...], was no longer relied on in later decisions. The applicant did not dispute that the authorities had acted in the furtherance of a legitimate aim.
63.On the facts of the case the Court sees no reason to doubt that the measures in question pursued the legitimate aims stated by the Government.
[...].
74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the "necessity" for an interference, as regards both the legislative framework and the particular measure of implementation [...]. Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention. The scope of this margin of appreciation is not identical in each case but will vary according to the context [...]. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.
75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community (in the context of Article 6 para. 1 (art. 6-1), see the Bryan judgment cited above, p. 18, para. 47; in the context of Article 1 of Protocol No. 1 (P1-1), see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, para. 69; the Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117, pp. 65-66, paras. 74-75 and 78; the Poiss v. Austria judgment of 23 April 1987, Series A no. 117, p. 108, paras. 64-65, and p. 109, para. 68; the Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 17, para. 57, and p. 19, para. 63). It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.
76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her "home", a right which is pertinent to her and her children's personal security and well-being [...]). The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. [...].
80. In the instant case, an investigation was carried out by the inspector, who actually saw the land for herself and considered written representations submitted by the applicant and the District Council [...]. In conformity with government policy [...], the special needs of the applicant as a Gypsy following a traditional lifestyle were taken into account. The inspector and later the Secretary of State had regard to the shortage of Gypsy caravan sites in the area and weighed the applicant's interest in being allowed to continue living on her land in caravans against the general interest of conforming to planning policy[...]. They found the latter interest to have greater weight given the particular circumstances pertaining to the area in question. [...].
81. The applicant was offered the opportunity, first in February 1992 and again in January 1994, to apply for a pitch on the official caravan site situated about 700 metres from the land which she currently occupies ([...]. Evidence has been adduced which tends to show that the alternative accommodation available at this location was not as satisfactory as the dwelling which she had established in contravention of the legal requirements [...]. However, Article 8 (art. 8) does not necessarily go so far as to allow individuals' preferences as to their place of residence to override the general interest.
82. It is also true that subsequently, in her report of July 1995, the second inspector found that the applicant's caravans could have been adequately screened from view by planting hedges; this would have hidden them from view but, so the inspector concluded, would not have reduced their intrusion into open countryside in a way which national and local planning policy sought to prevent [...].
83. [...].
84. In the light of the foregoing, the Court considers that proper regard was had to the applicant's predicament both under the terms of the regulatory framework, which contained adequate procedural safeguards protecting her interest under Article 8 (art. 8), and by the responsible planning authorities when exercising their discretion in relation to the particular circumstances of her case. The latter authorities arrived at the contested decision after weighing in the balance the various competing interests in issue. [...]. Although facts were adduced arguing in favour of another outcome at national level, the Court is satisfied that the reasons relied on by the responsible planning authorities were relevant and sufficient, for the purposes of Article 8 (art. 8), to justify the resultant interference with the exercise by the applicant of her right to respect for her home. In particular, the means employed to achieve the legitimate aims pursued cannot be regarded as disproportionate. In sum, the Court does not find that in the present case the national authorities exceeded their margin of appreciation."
ECtHR (GC), judgment Hatton and Others v. the United Kingdom (36022/97) 8 July 2003 (on night-flights at Heathrow airport):
"98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance [...].
99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.
100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. [...].
123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation [...]. Rather, the normal rule applicable to general policy decisions [...] would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in Buckley, cited above[...]. Whilst the State is required to give due consideration to the particular interests, the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.
124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period [...]. The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8.
125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates [...]. However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review.
126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from Far-East destinations to London could arrive only by departing very late at night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including, inter alia, the addition of an overall maximum number of permitted aircraft movements (see paragraph 50 above) and reduction of the available quota count points (see paragraph 66 above).
127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (see paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure. [...].
129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."
ECtHR, judgement Dzemyuk v. Ukraine (42488/02), 4 September 2014 (construction of a cemetery in breach of environmental health regulations):
"82. As to the present case, the Court accepts that the applicant and his family may have been affected by the water pollution at issue. However, the Court must establish, in the absence of direct evidence of actual damage to the applicant’s health, whether the potential risks to the environment caused by the cemetery’s location established a close link with the applicant’s private life and home sufficient to affect his "quality of life" and to trigger the application of the requirements of Article 8 of the Convention [...].
83. The Court notes that the domestic environmental health and sanitary regulations clearly prohibited placing the cemetery in close proximity to residential buildings and water sources [...].. It appears that the nearest boundary of the cemetery is situated 38 metres away from the applicant’s house[...].. This cannot be regarded as a minor irregularity but as a rather serious breach of domestic regulations given that the actual distance is just over one tenth of the minimum distance permissible by those rules. Furthermore, the cemetery is a continuous source of possible health hazards and the potential damage caused by such is not easily reversible or preventable. Such environmental dangers have been acknowledged by the authorities on numerous occasions, including, by prohibiting the use of the illegal cemetery for burials and by the offer to resettle the applicant [...].). It further notes that the domestic authorities established that the construction of a cemetery at the said location placed the applicant at risk of contamination of the soil and of the drinking and irrigation water sources because of emanations from decomposing bodies like ptomaine [...].. The Court has particular regard to the fact that there was no centralised water supply in the Tatariv village and villagers used their own wells [...].. It also appears that the high level of E. coli found in the drinking water of the applicant’s well was far in excess of permitted levels and may have emanated from the cemetery [...]., although the technical reports came to no definitive or unanimous conclusion as to the true source of E. coli contamination [...].. In any event, the high level of E. coli, regardless of its origin, coupled with clear and blatant violation of environmental health safety regulations confirmed the existence of environmental risks, in particular, of serious water pollution, to which the applicant was exposed.
84. Under such circumstances, the Court concludes that the construction and use of the cemetery so close to the applicant’s house with the consequent impact on the environment and the applicant’s "quality of life" reached the minimum level required by Article 8 and constituted an interference with the applicant’s right to respect for his home and private and family life. It also considers that the interference, being potentially harmful, attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention. [...].
92. The Court notes that the Government have not disputed that the cemetery was built and used in breach of the domestic regulations [...]. It further appreciates the difficulties and possible costs in tackling environmental concerns associated with water pollution in mountainous regions. At the same time, it notes that the siting and use of the cemetery were illegal in a number of ways: environmental regulations were breached; the conclusions of the environmental authorities were disregarded; final and binding judicial decisions were never enforced and the health and environment dangers inherent in water pollution were not acted upon [...]. The Court finds that the interference with the applicant’s right to respect for his home and private and family life was not in accordance with the law" within the meaning of Article 8 of the Convention. There has consequently been a violation of that provision in the present case. The Court considers, in view of its findings of illegality of the authorities’ actions, that it is unnecessary to rule on the remaining aspects of the alleged breach of Article 8 of the Convention."
ECtHR, judgement Kapa and Others v. Poland (75031/13 and 3 others) 14 October 2021 (routing extremely heavy day and night motorway traffic via a road unequipped for such a purpose which ran through the middle of a town in very close vicinity to the applicants' home for two years during the construction of a motorway):
"153. The Court notes the finding of the domestic courts that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone beyond the statutory norms (see paragraph 88). In the light of the circumstances of the case, the adverse effects of the pollution (the noise, vibrations and exhaust fumes) emitted by the heavy traffic on Warszawska Street which affected the applicants’ home have attained the necessary minimum level to bring the applicants’ grievances within the scope of Article 8 of the Convention, taking into account their intensity, duration, physical and mental effects [...].
154. The Court observes that although the applicants complained that the heavy road traffic which had followed the opening of the Konin‑Stryków section of the A2 motorway had caused a nuisance, they did not argue against the national policy of road development or the local policy of commercial development of the area [...]. Incidentally, the implementation of these policies, as transposed into the local master plan, was to be accompanied by the construction of a ring road around Stryków [...],
155. The applicants complained instead that the problem in question could have been avoided if the authorities had been diligent in planning that section of the motorway [...]. Moreover, the consequent nuisance could have been minimised if the authorities had employed timely, adequate and sufficient mitigation and adaptation measures [...].
156. As to the first part of the complaint, the Court rejects the applicants’ argument that there was a pattern of bad planning as regards the sections of the A2 motorway, as there is no evidence to support that allegation.
157. The Court nevertheless observes that the administrative authorities, which were in charge of choosing the location and the technical specifications of the motorway, did not examine the objection about the location of the motorway’s temporary end point which had been lodged in 1996 by the mayor of Stryków [...]. The mayor had formulated a clear and detailed prediction as to the risk that ending the motorway at the point later known as the Stryków II junction without any alternative road connection would cause traffic on Warszawska Street which was too heavy and too burdensome [...].
158. The Court also takes note of the fact that all the environmental impact assessment reports and administrative decisions which were produced in the course of the impugned administrative proceedings, and which are in the Court’s possession, were only concerned with the motorway per se, and were completely silent as to the traffic rerouting via the N14 road [...].
159. Another important element in this context is that the authorities opted for that section of the motorway to be toll-free [...], even though that was clearly going to prompt the greater circulation of traffic on that road and on the N14, which was shorter and technically better than any alternative national or regional road in the vicinity [...].
160. Lastly, the Court accepts that Stryków residents were affected by not only the transit traffic, but also the movement of vehicles serving various warehouses and logistics centres [...]. However, no data are available to distinguish between these two types of traffic. The Court thus considers it reasonable to assume that the transit traffic constituted a significantly larger portion of the traffic in question, especially the traffic which circulated at night, that is, outside of the opening hours of the commercial establishments which developed in the Stryków area.
161. In the light of all these considerations, the Court cannot agree with the Government that the traffic on Warszawska Street was unpredictable [...]. The Court thus concludes that the authorities, who had been alerted to the potential problem in 1996, knowingly ignored it and continued developing the motorway project with total disregard for the well-being of Stryków residents.
162. The Court stresses that, for the purpose of this case, the peaceful enjoyment of Stryków residents’ homes was threatened and ultimately affected not by the development of the motorway as such, but rather the project rerouting the motorway’s traffic through the middle of their town. In that regard, the general interest in having the motorway developed or constructed in sections [...] must be distinguished from the general interest in having that particular section of the motorway end at the Stryków II junction, with the only option being to divert the motorway’s uncontrolled traffic down the unadapted Warszawska Street.
163. The Court accepts that minimising investment expenses is a valid general interest for any State budget. It also takes note of the information indicating that the ring road around Stryków could not be constructed owing to the shortage of funds [...]. However, the Court has serious doubts as to whether this is a sufficient counterbalancing factor.
164. The Court will now move on to the second part of the applicants’ complaint and examine whether the authorities reacted promptly and adequately to the problem of heavy traffic which started affecting Stryków residents after the opening of the section of the motorway on 26 July 2006.
165. The authorities, who, on the one hand, carried out their own monitoring, and other the other hand, were alerted to the problem by the population concerned [...], did not adopt a passive attitude.
166. The very first plan to mitigate the situation was presented in August 2006. The plan featured two options: the ring road, and the 1.7-km extension to what later became known as the Stryków I junction [...].
167. The implementation of that plan, however, was marked by serious complications and delays. As already explained, the ring road option was abandoned [...]. The second-best solution, that is, the opening of an extension to the motorway up to the new junction, took place only two and a half years later, on 22 December 2008 [...].
168. It appears that the delay in question was not attributable to the administrative proceedings (the environmental impact assessment having been delivered in 2003, and the permits having been granted in 2006), but rather the works [...].
169. Extending the motorway to the Stryków I junction offered a direct connection to the A1 motorway and effectively reduced the traffic on the N14 road to an acceptable level [...].
170. While awaiting the above-described long-term solution, the authorities made serious, albeit hasty, attempts to reorganise the traffic by installing custom-made signs indicating that drivers should make possible detours via nearby national and regional roads [...]. To judge the effects of that measure, the Court can only rely on the expert report of 30 November 2010, which appears to contradict itself, as well as on the parties’ submissions. It is thus the Court’s understanding that the measure which was implemented in December 2006, even though it had some positive effect, did not eliminate the heavy and continuous traffic from a significant number of trucks [...].
171. In October 2006 the authorities also took the adaptation measure of renovating the surface of Warszawska Street [...]. That apparently did not bring about any positive change [...]. It appears that no other adaptation measures (like anti-noise screens) could be taken in Stryków.
172. The Court observes that the authorities faced a difficult task of mitigating the problem of very heavy traffic resulting from the rerouting of the A2 motorway down Warszawska Street. They also had a very limited choice of possible adaptation measures. The Court therefore accepts that the authorities made considerable efforts to respond to the problem. This, however, does not change the fact that these efforts remained largely inconsequential, because the combination of the A2 motorway and the N14 road was, for many reasons, the preferred route for drivers. As a result, the State put vehicle users in a privileged position compared with the residents affected by the traffic.
173. Even though the civil proceedings through which the applicants tried to seek ex post facto compensation for the nuisance suffered cannot be said to have been marked by unfairness, all the foregoing considerations are sufficient to enable the Court to conclude that a fair balance was not struck in the present case.
174. In sum, the rerouting of heavy traffic via the N14 road, a road which was unequipped for that purpose and very near to the applicants’ homes, and the lack of a timely and adequate response by the domestic authorities to the problem affecting the inhabitants of Warszawska Street, enables the Court to conclude that the applicants’ right to the peaceful enjoyment of their homes was breached in a way which affected their rights protected by Article 8.
175. There has accordingly been a violation of Article 8 of the Convention."
IV. Spatial Planning, Administrative Procedure and Participation
1. Case Law of the ECtHR on Basic Procedural Requirements
4. The CoE handbook "The administration and you"
1. Case Law of the ECtHR on Basic Procedural Requirements
ECtHR, judgement Buckley v. United Kingdom (20348/92) 25 September 1996 (on a refusal to grant a permanent planning permission for the residential use of three caravans):
"76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her "home", a right which is pertinent to her and her children's personal security and well-being [...]). The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State. Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 (art. 8) contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (art. 8) [...]."
ECtHR (GC), judgment Hatton and Others v. the United Kingdom (36022/97) 8 July 2003 (on night-flights at Heathrow airport):
"99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.
128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the authorities have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme had thus been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN [...], and were thus particularly well-placed to make representations.
129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."
ECtHR, decision Eckenbrecht and Ruhmer vs. Germany (25330/10), 10 June 2014 (on planning proceedings for expansion and reconstruction of the Leipzig/Halle airport):
"36. The Court reiterates that whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on the State, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8. It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process and the procedural safeguards available. A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others, cited above, § 128; Dubetska and Others v. Ukraine, no. 30499/03, § 143, 10 February 2011 and Grimkovskaya v. Ukraine, no. 38182/03, § 67, 21 July 2011). Furthermore, the public should have access to the findings (see Taşkın and Others v. Turkey (dec.), no. 46117/99, § 119, ECHR 2004‑X).
37. The Court notes at the outset that the planning authorities were well aware that the envisaged economic development implied serious disturbances for residents.
38. It observes that the approval decisions complied with all requirements of the domestic law: in its judgment of 9 November 2006 the Federal Administrative Court quashed the (original) appeal decision in the parts relating to the balancing of interests and required the authorities to take a formal decision on the regulation of night flights.
39. The Court notes in this context that when scrutinizing the procedural safeguards that were available to those whose rights were at stake, it should not limit itself to scrutinising exclusively the supplementary plan approval decision of 2007, as only by examining the supplementary decision in the light of the 2004 approval decision the Court may attain a full overview of the safeguards at hand.
40. Before the supplementary plan approval decision was issued the local residents had again the possibility to advance their views and objections in order not to become precluded from future judicial review. Views and objections were only admitted and taken note of if they related to the balancing that had to be amended by these supplementary proceedings.
41. The supplementary approval decision based its balancing of the public interest in economic and regional development with the private interests in privacy on the findings of the expert reports on noise pollution ordered in 2003. The planning authority had originally ordered expert reports on the ex ante situation and on future noise disturbances in order to have a sound factual basis for its decision. These reports and the plans based on these findings were made public and the residents and interested NGOs were invited to comment in 2004. According to the findings of the reports the planning commission set out several noise protection zones ranging from zones which would be considered no longer suitable for occupational purposes due to noise to zones where passive noise protection measures would be provided for by the airport company. The applicant’s homes both lay within the zone where passive noise protection would be provided for.
42. In summary, the Court observes that the residents affected by the planning had the right to participate actively in the proceedings by advancing their views. The expert reports on noise impacts were rendered public as were the planning materials. The planning authority defined areas where owners had to be compensated as the premises were considered to have become unhealthy for habitation, and areas where passive noise protection was provided for. Lastly, there was access to judicial review.
43. The Court recalls that the planning authority in 2007 decided solely on the question whether it was possible to further restrict night time flights for ordinary freight or passenger flights while still ensuring that the economic development aims for the regions by attracting global freight operators remained feasible. Further reducing night flights was considered of particular importance since the residents already had to tolerate night disturbances due to the flights for express freight and their interest to be spared additional flights at night was taken into special consideration. A decision to allow unrestricted night time flights would have required a particular justification.
44. The planning authorities therefore carefully lay out which type of flights could be further restricted (passenger and ordinary freight flights) and which could not without endangering the legitimate public purpose pursued by the airport reconstruction. Regarding express freight the authority explained that only rarely a whole flight would consist entirely of express freight, but most freight flights would be mixed. However, it imposed a supervisory duty on the airport for the future to ensure that the overwhelming part of night goods would consist of express goods. The Court is not in a position to substitute the authority’s balancing decision with its own.
45. In view of the fact that the German courts took into account all relevant factors and balanced them in a reasonable manner, the impugned decisions cannot be held to have overstepped the margin of appreciation as regards Article 8. Accordingly, the Court finds that the applicants’ complaints under Article 8 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention."
2. Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons
"The Committee of Ministers, [...].
Considering that, in an increasing number of fields, administrative authorities are called upon to take decisions which affect in varying ways a large number of persons, especially in the fields of major installations, industrial plant and spatial planning;
Considering that it is desirable that common principles be laid down in respect of such decisions in all member states so as to ensure compatibility between the protection of a large number of persons and the requirements of efficient administration; [...].
Having regard to the general principles laid down in Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities as well as to the relevant principles included in Recommendation No. R (80)2 concerning the exercise of discretionary powers by administrative authorities;
Considering that these principles should be adapted and supplemented in order to ensure in a fair and effective manner the protection of a large number of persons, including, where appropriate, persons concerned by certain international effects of decisions,
Recommends the governments of member states to be guided in their law and administrative practice as well as in their mutual relations by the principles set out in the appendix to this recommendation; [...].
See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):
"2. It has been found that an increasing number of actions by public authorities are of such complexity or scale as simultaneously to affect, with varying intensity, a large number of persons. Their impact may even be felt in the territory of a neighbouring State. Such actions of public authorities may not only affect in a concrete manner the rights, liberties and interests of a large number of persons but they may also attract the attention and anxiety of a large number of other persons whose interests could be affected and cause them to want to influence the proposed action. In some circumstances the interests of the latter persons are so important that they ought to be given protection in the administrative procedure.
The factors now mentioned have a special bearing on the organisation of the administrative procedure and call for adequate solutions.
Two basic questions arise.
How should the protection of a large number of persons be organised so as to remain compatible with the requirements of efficient administration? To what extent, under which conditions and how should persons whose rights, liberties or interests are liable to be affected by an administrative act in the territory of a neighbouring State, have the possibility to take part in its making and to have it reviewed by a control organ?
3. [...].
4. In spite of the differences between the legal and administrative systems of the member States, it was possible to discover a large measure of agreement concerning the fundamental principles which should guide the rules on administrative procedures concerning a large number of persons and to recommend their extension. The task was basically one of developing and adapting the principles set out in Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities and, subsidiarily, in Recommendation No. R (80)2 concerning the exercise of discretionary power by administrative authorities."
Scope and definitions following the Appendix to Recommendation No. R (87)16:
"The present recommendation applies to the protection of the rights, liberties and interests of persons in relation to non-normative administrative decisions (administrative acts) which concern a large number of persons, more specifically:
a. a large number of persons to whom the administrative act is addressed, hereafter referred to as persons of the first category;
b. a large number of persons whose individual rights, liberties or interests are liable to be affected by the administrative act even though it is not addressed to them, hereafter referred to as persons of the second category;
c. a large number of persons who, according to national law, have the right to claim a specific collective interest that is liable to be affected by the administrative act, hereafter referred to as persons of the third category."
See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):
"10. The Recommendation's scope is not limited to certain areas of administrative activity. It is neither desirable nor feasible to specify in such international instruments, as is often the case under national law, the fields in which participation procedures must be set up as well as any levels and criteria of magnitude determining at what stage those procedures must be used. It is true that spatial planning, the execution of major installations and the protection of the environment constitute the most obvious fields of application. The Recommendation is however designed to encompass various other fields and to be applicable to future areas of administrative action which are not foreseeable yet.
Structure of the Appendix to Recommendation No. R (87)16: Section I lays down principles applicable to the taking and the control of administrative acts which concern a large number of persons on the national territory. Section II states various additional principles for the protection of rights and interests affected outside the national territory.
The procedurals rules foreseen in Section I deal with instruments to permitting an effective consultation with all persons concerned by information, the need to choose representatives, the obligation to take into account facts, arguments and evidence submitted by the persons concerned during the participation procedure, the final notification of the act in question, and judicial control.
3. Articles 6 and 7 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, Liechtenstein, Monaco, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby also concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.
"Article 6 - Public Participation in Decisions on Specific Activities
1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and
(c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.
2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure, including, as and when this information can be provided:
(i) The commencement of the procedure;
(ii) The opportunities for the public to participate;
(iii) The time and venue of any envisaged public hearing;
(iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;
(v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and
(vi) An indication of what environmental information relevant to the proposed activity is available; and
(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.
3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their application before applying for a permit.
6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:
(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the environment;
(c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;
(d) A non-technical summary of the above;
(e) An outline of the main alternatives studied by the applicant; and
(f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.
7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.
8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.
9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.
10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.
11. Each Party shall, within the framework of its national law, apply, to the extent feasible and appropriate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment.Article 7 - Public Participation Concerning Plans, Programmes and Policies Relating to the Environment
Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment."
See for the definition of "public" and "public concerned":
"Article 2 - Definitions
For the purpose of this Convention
1. [...].
4. "The public" means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;
5. "The public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest."
4. The CoE handbook "The administration and you"
CoE (ed.), The administration and you (2nd edition 2018), pp. 30 f.:
"Principle 9 – Participation
Everyone shall have the opportunity to participate in the preparation and implementation of administrative decisions by public authorities which affect his or her rights or interests..
[...]
Commentary
Participation by individuals (as users of public services) in the preparation and implementation of administrative decisions which affect them is a means of bringing the public closer to the public authority. Public participation should be encouraged where feasible to ensure the public interest is taken into account, without fostering corporatism or excessively slowing down the decision making. Only urgent action would be a legitimate reason for public authorities not to respect the principle of participation.
Public participation can be achieved by members of the public participating in ad hoc joint committees or in municipal committees or boards. Another possible method is the organisation of annual meetings involving representatives of service providers and users to meet and discuss the preparation or implementation of administrative decisions based on an agreed agenda.
Effective public participation can entail the involvement of civil society given its work with various sections of the public and its experience of daily life on the ground. Civil society can help public authorities better understand and meet the expectations of the public when providing social, cultural or educational services, for example in relation to: kindergartens, school meals, school transport, libraries, the environment, assistance for the elderly, and health and assistance for children in difficulty at school.
When a public authority proposes to take a non-regulatory decision that may affect the rights and interests of an indeterminate number or large numbers of people,particularly at local level (for example on large construction projects, change of land use, health or educational policies), it should set out procedures allowing for public participation in the decision-making process. Such participation can take the form of written observations, hearings, representation on an advisory body of the competent authority, consultations and/or public enquiries. Whichever form ofparticipation is chosen, it is important that the public is clearly informed of the proposals in question and given the opportunity to express their views fully."
CoE (ed.), The administration and you (2nd edition 2018), pp. 31 f.:
"Principle 10 – Right to be heard
Before a public authority takes an administrative decision affecting the rights or interests of an individual, the person concerned shall be given the opportunity to express his or her views and submit information and arguments to the public authority.
[...]
Commentary
The right to be heard is a key principle of good governance in a democratic state. For this, access to official information is important to enable individuals to make relevant and effective submissions in relation to proposed administrative decisions that will or may affect their rights or interests [...]. Procedures and what matters need to be considered will depend on whether the administrative decision concerns individual or collective interests.
[...].
To assist those who wish to make submissions, the public authority should provide full disclosure of the facts, arguments and evidence, as well as the legal basis, on which it intends to make its decision. The submissions of other parties should also be made publicly available. Individuals should be allowed to make submissions on more than one occasion during the course of the administrative procedure, particularly where the procedure is lengthy and new elements come to light. Individuals should also have the right to respond to submissions made by the public authority or other parties.
[...].
In many cases decisions of public authorities will concern a large number of persons, often within the same locality (for example in the context of major installations, industrial plants, urban and rural planning). Persons residing in neighbouring or other states may also be affected. Indeed, local authorities in border regions are increasingly undertaking public works of a transfrontier nature. Recommendation No. R (87) 16 on administrative procedures affecting a large number of persons balances the requirements of good and efficient administration, on the one hand, with the fair and effective protection of a large number of persons on the other hand, including, where appropriate, persons affected by the international effects of administrative acts. The right to be heard is an important principle in this context. It is important that systems are put in place to facilitate participation in relevant administrative procedures, such as public consultations, public hearings, and the setting up of advisory bodies. Notification of administrative procedures may be by publication of public notices. Where administrative decisions concern people living and working in adjoining border areas of another state or jurisdiction, public authorities should take steps to allow these people to also participate effectively in the decisionmaking process, possibly in co-ordination with relevant public authorities of the other state or jurisdiction."
5. Guidelines of the Committee of Ministers for civil participation in political decision making (CM(2017)83-final) of 27 September 2017
There seems to be no Explanatory memorandum to these guidelines.
6. The pan-European general principles on transnational mutual assistance and participation in spatial planning procedures
For the pan-European general principles on transnational mutual assistance and participation in spatial planning procedures click here
V. Spatial Planning and Judicial Review
1. Judicial Review and the Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons
"Section I
Administrative Procedure and control
I. [...].
VII.
The administrative act should be subject to control by a court or other independent body. Such control does not exclude the possibility of a preliminary control by an administrative authority.
When the control procedure involves a large number of individuals, the court or other control body may, in accordance with fundamental principles and having due regard to the rights and interests of the parties, take various steps to rationalise the procedure, such as requiring participants with common interests to choose one or more common representatives, hearing and deciding test appeals and making notification by public announcement."
See also the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2):
"22. In the matter of control, there is a great diversity between national laws in every respect : locus standi, scope of the control, whether or not an appeal has a suspensive effect, power of the courts to give instructions to the administration. In spite of a general trend towards fuller supervision by the courts, harmonisation of the law on this point is particularly difficult. Principle VII reflects this state of affairs.
Firstly, it guarantees the existence of a system of control by a court or other independent body but without indicating either its scope or its accessibility, which are both matters regulated exclusively by domestic law.
Secondly, it is designed to facilitate the efficient conduct of proceedings within a reasonable time by suggesting certain procedural changes made desirable by the large number of participants. The changes suggested are intended only as examples, as any procedural reform should take account of the particular features of each state’s judicial system and traditions. Such changes should be introduced in conformity with the fundamental principles of procedure deriving from the constitution or from texts ranking above the law.
23. In this respect, it is recalled that the principles set out in the appendix to the recommendation, and in particular Principle VII, are addressed to governments – with a view to their proposing any necessary legislative reforms – rather than to courts. It may be noted in this regard that, in some states, courts already have extensive powers to rationalise proceedings along the lines suggested, while such rationalisation is limited in scale or even non-existent in other states and would need a legislative basis."
2. Article 9 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby also concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.
"Article 9 - Access to Justice
1. [...].
2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned
(a) Having a sufficient interest
or, alternatively,
(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of preliminary review procedure before an administrative authority and shall
not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4. In addition [...] the procedures referred to in paragraphs [...] 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice."
VI. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review
If a decision to adopt an 'act of spatial planning' is taken in the form of a regulation or a bylaw (municipal statute) the pan-European general principles on administrative rules and administrative rulemaking (for theses principles click here) may apply subsidiarily to these decisions. Furthermore, the decision to adopt an 'act of spatial planning' may meet the criteria
- of an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal")
and
- of an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal")
and
- of a 'non-regulatory decision' ("which may be individual or otherwise. Individual decisions are those addressed solely to one or more individuals.") in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
and
- of an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").
Thus, the basic principles enshrined in these recommendations may directly apply to 'spatial planning decisions' meeting these criteria on a subsidiary basis. This concerns the the pan-Euopran general principles on
- discretion (for these principles click here),
- fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here), and
- judicial review (for these principles click here).
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The Pan-European General Principles on (Local) Public Services and the Rights of their Users
(compiled by Ulrich Stelkens)
IV. "Update" of Recommendation No. R (97)7 by Recommendation CM/Rec(2007)4 of the Committee of Ministers to member states on local and regional public services
I. Definition of (Local or Regional) Public Service in the Preambule of Recommendation CM/Rec(2007)4 of the Committee of Ministers to member states on local and regional public services
"[...] for the purposes of this recommendation, a local or regional public service is a service in respect of which, pursuant to a broad social agreement expressed usually through a decision of a competent democratic public authority, overall continuity and individual access are ensured by a local or regional public authority through direct provision (through the local or regional public sector) and/or through the financing of its provision by third parties and/or by establishing specific regulations which go beyond those which apply to other services."
II. The 'Public Utility Doctrine' Underlying Section 2 of Recommendation No R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities
See on Section 2 point 3.2.3. of the Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 494 ff.):"Section 2: Protection of users' and consumers' rights
In the case of privatisation concerning:
- a public utility, such as the provision of public transport, telecommunications, water, gas, electricity, as well as any other activity determined by national law to be in the nature of a public utility, or
- a monopoly providing goods or services to a large public which will continue to be a monopoly after privatisation,
the conditions of the privatisation should be determined with due regard to the continuity, accessibility (including price) and quality of the service in the public interest. Consultation of consumers or users should take place where this is appropriate.
The interests taken into account pursuant to the previous paragraph should, if necessary, be safeguarded by means of a regulatory authority with effective possibilities to compel compliance on the part of the privatised undertaking or on the part of the person carrying out the privatised activity, or by other effective means including, where appropriate, the availability of speedy and inexpensive judicial or administrative remedies or arbitration.
Before proceeding to such a privatisation, the public authorities should inform, by any appropriate means, the users or consumers of the ways in which they intend to protect the interests taken into account pursuant to the two preceding paragraphs."
"The privatisation of certain undertakings or activities is liable to have direct implications for the interests of those members of the public who are users or consumers of the product (whether goods or services) of the undertaking or activity in question. This arises in particular where the undertaking or activity to be privatised is a "public utility". The notion of a public utility is not precise but it is traditionally related to such essential activities in the public interest as the provision of gas, electricity, water, public transport, telecommunications, etc. This is not an exhaustive list and the precise definition of the concept of public utility must ultimately be left to the national legal system. A second case in which the protection of users and consumers is of particular importance is where the undertaking or activity to be privatised is a state monopoly providing goods or services to a large public which will retain
its monopoly status after privatisation. The transfer from public into private hands of a monopoly (whether a legal monopoly or a de facto monopoly) in respect of the provision of goods or services to a large public is liable to call for special measures to protect the interests of users and consumers after privatisation.This principle indicates a number of particular concerns to whichthe member states ought to have due regard. These are:
– the need to ensure that the continuity, accessibility (including price) and quality of the service is maintained after privatisation;
– the need, where this is appropriate, for the public authorities to consult consumers or users to this end;
– the fact that it may be necessary (a necessity which it is for the member state concerned to assess) to provide a means whereby the privatised undertaking, or those in charge of the privatised activity, can be effectively compelled to comply with those conditions of the privatisation which are directed to the protection of users and consumers. These means may, if necessary, involve the setting up of a regulatory authority, or the provision of special, speedy and inexpensive judicial or administrative remedies or arbitration; and
– the need to inform, by appropriate means, the users or consumers concerned in advance of the means by which their interests, above referred to, will be protected.
Click here for the genesis of Recommendation No R(93)7 in general. For Recommendation No. R (93)7 as a general source of the pan-European general principles on privatisation click here; for the "privatisation procedures" provided in Section 3 of the Appendix to Recommendation No. R (93)7 click here
Preambule of the Recommendation highlights the role of local public services:
"The Committee of Ministers
[...]
Considering that local public services shape the local inhabitants´ everyday environment and determine, to a large extent, their quality of life;
Considering that local public services are one of the vital dimensions of local self-government, in respect of which they allow for its concrete expression and a measure of its real development;
Considering that they account for an important part of the national economy by virtue of the expenditure they incur, the resources they mobilise and the functions they fulfil;
Considering that these services make a significant contribution to local development and to the spatial organisation of facilities and services within the territory;
Considering that they play a leading role in organising social solidarity by providing essential services to meet public needs;
Considering that in view of the above, as far as possible, the users of these services should enjoy the same rights and safeguards as those afforded by national and regional public services, and in the framework of the relevant legislation should enjoy, where appropriate, protection comparable to that available to the customers of private sector enterprises;
Given the considerable variety of duties performed by local public services and the emergence of new social demands;
Given the contribution that local public services can make to modernising public administration and to promoting technical or social innovation;
Given the scope of the changes currently under way in these services with a view to finding more efficient management methods, in particular because of the need to better control public expenditure;
Given the progress already made in a number of countries in establishing rights and safeguards for users of public services, particularly at the local level, but also the not insignificant inequalities remaining in these areas;
Given that local public services can make a significant contribution to resolving issues of serious concern to member States and their citizens, such as job creation, social solidarity and cohesion, improving democracy, the respect for human rights in practice, or environmental protection;
Given the need to facilitate the integration of local public services into modern economic mechanisms, without however creating obstacles to free competition;
Considering that member States should make modernising the management and operating methods of local public services, a priority, while respecting the principles of local self-government, users´ rights and the rules of a market economy,
Recommends that the governments of member States:
- have regard to the „Guidelines for local public services in Europe“, attached to this Recommendation, in framing their policies and legislations, so as to encourage local authorities to develop their public services in order to meet the needs of the community more effectively and to respect users´ rights more fully;
[...]."
In the Appendix of this Recommendation, 17 "guidelines" are drawn up and explained. Local public services should
- ensure the principle of equality for users in a complete and practical way and respect the principles of non-discrimination and neutrality;
- guarantee the continuity of essential services for the population within the limits of economic and budgetary constraints;
- contribute to sustainable development and to a balanced and rational distribution of available resources throughout the territory of the local authority;
- continuously improve the quality of their services to respond to changing social demands;
- organise communication with users ensuring all interested parties appropriate information about their rights and the services which they may obtain, as well as about the applicable rules;
- organise their public services in order to allow users, whenever it is appropriate, to choose between various services or even various suppliers;
- subscribe to the development of users' rights and protection in the framework of the relevant legislation;
- Users of local public services should be recognised and served as such.
"Guidelines" 2 and 3 seem to be fundamental for the notion of public services:
"2. Local public services should ensure the principle of equality for users in a complete and practical way and they should respect the principles of non-discrimination and neutrality.
Local services should observe the general principles of public services: equality, neutrality, non-discrimination and continuity, and they are charged with looking after the public interest and ensuring a rational balance between resources and expenditure.
In order to do this, they should resort to all forms of inter-municipal co-operation which might allow them to improve their performance.
Their goal is to ensure genuine and complete equality among users, and this may require differential treatment (rates, assistance, conditions of access, etc.) in appropriate cases in order to take account of de facto differences in the situation of users or candidates for the use of a service. They respect the principles of neutrality and non-discrimination in respect of users, freedom of opinion and the whole range of public freedoms which they are under a duty to guarantee and promote.
3. Local public services should guarantee the continuity of essential services for the population within the limits of economic and budgetary constraints.
In keeping with the principle of continuity, they should guarantee the non-interruption of the provision of essential services to the population, within the limits of economic and budgetary constraints.
Permanence and continuity are inherent in many local public services: the supply of drinking water, gas and electricity, fire-fighting, household refuse collection, the provision of district heating systems, education, etc. These principles must be reconciled with the rights of the staff of the service, including those staff employed by a contractor providing a service on behalf of a local authority. It is, therefore, necessary to regulate the situation of the whole of the public services at national/regional level by means of legislation or agreements between employees and employers.
According priority to the protection of the great majority of the population´s interests may lead to the drawing up of a list of the services where a total stoppage, even a temporary one, is unacceptable. In such cases prior notice should be given of unavoidable stoppage of work and/or a minimum service should be provided.
National and regional regulations should be complemented where appropriate by local agreements setting out the arrangements for avoiding the total closure of these services on special occasions, such as holidays and extended or long weekends, with a view to avoiding the total closure of such services for periods of time which are incompatible with the interests they are meant to protect.
The principle of continuity and the principle of equality coincide when it is necessary to maintain certain public services even in places where the low density of population makes them unprofitable, particularly in rural areas. In those cases, the closing down of a public service should be the result of a decision supported by stated reasons which demonstrate that alternative solutions such as regrouping of services, multiple services access desks or use of modern technologies, are not viable.
Local public services should contribute to social cohesion, either by providing solidarity services established by law thus contributing to the implementation of social aid policies covering the national community as a whole; or by using their own powers to supplement and build upon these policies, according to the needs and resources existing at the local level.
Their concern is to strengthen local community cohesion to avoid rips in the social fabric and to maintain solidarity between local communities, thanks to the quality of the services they deliver to the population, and in particular to the disadvantaged categories. They aim at maintaining a harmonious community life by fostering economic progress, without which there can be no sustainable social progress."
IV. "Update" of Recommendation No. R (97)7 by Recommendation CM/Rec(2007)4 of the Committee of Ministers to member states on local and regional public services
The Preambule of Recommendation CM/Rec(2007)4 refers to all earlier sources on local and regional public services considered as relevant:
"Taking into account the following recommendations which it has addressed to member states:
– Recommendation No. R (87)12 on the role of local and regional authorities in employment policy;
– Recommendation No. R (90)12 on services and infrastructures in rural areas;
– Recommendation No. R (97)7 on local public services and the rights of their users;
– Rec(2001)19 on the participation of citizens in local public life;
– Rec(2003)2 on neighbourhood services in disadvantaged urban areas;
Taking note of the following recommendations and resolutions of the Congress of Local and Regional Authorities of the Council of Europe:
– Recommendation 114 (2002) on local authorities and public utilities;
– Resolution 140 (2002) on local authorities and public utilities;
– Recommendation 182 (2005) on public participation in local affairs and elections;
– Recommendation 188 (2006) on good governance in European metropolitan areas;
Having regard to Resolution No. 1 on "The Role of Local and Regional Authorities in the Provision of Local Social Services" of the Conference of European Ministers responsible for Local and Regional Government, adopted in Istanbul in 2000;
Having regard to the principles of regional self-government adopted by the Conference of European Ministers responsible for Local and Regional Government in 2002 in Helsinki;
Having regard to the following reports of the Steering Committee on Local and Regional Democracy (CDLR):
– The role of competitive tendering in the efficient provision of local services (1993);
– Participation by citizens-consumers in the management of local public services (1994);
– The use of performance indicators in local public services (1997);
– Management and funding of urban public transport (1999);
– Management of municipal real estate property (1999);
– Participation of citizens in local public life (2000);
– The role of local authorities in the field of local social services (2000);
– Neighbourhood services in disadvantaged urban areas and in areas of low population (2001);
– The risks arising from local authorities’ financial obligations (2002);
– Budgetary procedures and budget management at local authority level (2002);
Having regard to the Handbook of Good Practice in Public Ethics at Local Level, prepared by the CDLR and adopted on 31 March 2004 at the Conference on Ethical Standards in the Public Sector in Noordwijkerhout;
Having regard to Opinion No. 26 (2006) of the Congress of Local and Regional Authorities of the Council of Europe on the preliminary draft consolidated recommendation on local and regional public services, drafted by the CDLR (CDLR (2006) 14)"
The main aim of Recommendation CM/Rec(2007)4 is defined in the last recital of the preambule:
"Considering that the changes that have taken place since the adoption of Recommendation No. R (97)7 of the Committee of Ministers to member states on local public services and the rights of their users justify its being updated by means of the present recommendation"
Then follow 17 recommendations on
I. The role and the importance of local and regional public services (recommendation 1)
II. The decentralisation of public services (recommendations 2 - 4)
III. Service users’ role in defining, regulating and managing local and regional public services (recommendations 5 - 9)
IV. The legal framework governing local and regional public services (recommendations 10 - 11)
V. Performance management of local and regional public services (recommendations 12 - 14)
VII. The action to be taken on this recommendation (recommendation 16 - 17)
In the Appendix to the recommendation 83 "Guidelines on local and regional public services" are spelled out:
Part I – Guidelines addressed to central authorities (guidelines 1 - 20)
Part II – Guidelines for local and regional authorities (guidelines 21 - 83)
V. The Pan-European General Principles on Transfrontier Cooperation in the Provision of Public Services
For the pan-European general principles on transfrontier cooperation in the provisions of public services click here
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The Pan-European General Principles on Administrative Sanctions
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on Administrative Sanctions
IV. Case Law of the ECtHR on the Relevance of Article 7 ECHR for Administrative Sanctions
I. Scope of the Pan-European General Principles on Administrative Sanctions
2. The definition of 'administrative sanctions' in the case law of the ECtHR
1. The Scope of the Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions
Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions:
"The Committee of Ministers [...];
Considering that administrative authorities enjoy considerable powers of sanction as a result of the growth of the administrative state as well as a result of a marked tendency towards decriminalisation ;
Considering that it is desirable, from the point of view of protection of the individual, to contain the proliferation of administrative sanctions by submitting them to a set of principles ;
Recalling the general principles governing the protection of the individual in relation to acts of administrative authorities set out in its Resolution (77) 31 and the principles concerning the exercise of discretionary powers by administrative authorities contained in its Recommendation No. R (80) 2 ;
Considering that administrative acts imposing an administrative sanction should be subjected to additional guarantees ;
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.
Scope
This recommendation applies to administrative acts which impose a penalty on persons on account of conduct contrary to the applicable rules, be it a fine or any punitive measure, whether pecuniary or not.
These penalties are hereinafter referred to as administrative sanctions.
The following are not considered to be administrative sanctions:
– measures which administrative authorities are obliged to take as a result of criminal proceedings ;
– disciplinary sanctions.
In the implementation of these principles, the requirements of good and efficient administration, as well as major public interests should be taken into account.
Where these requirements make it necessary to modify (or exclude) one or more of these principles, either in particular cases or in specific areas of public administration, every effort should nevertheless be made to observe respect for the greatest possible degree of equity, according to the general aims of this recommendation."
"Scope
4. The principles on which the member states are invited to draw in their law and practice apply to administrative acts which impose sanctions on individuals for conduct contrary to the applicable rules.
The term "administrative act" has the same meaning as in the previous recommendations. [...] This definition, which concerns measures or decisions "taken in the exercise of public authority", covers not only the acts of administrative authorities but also measures taken by other persons, public or private undertakings or individuals in the exercise of public authority prerogatives conferred upon them. The drafters were aware of the problems that the application of this recommendation might pose with respect to sanctions the recourse to which is automatic in nature.
Conduct contrary to applicable rules includes omissions where such rules impose a duty to take action.
The meaning of the word "sanction" for the purpose of this recommendation requires clarification. A sanction is imposed by an administrative act. Not all administrative acts placing a burden on or affecting the rights or the interests of private citizens are to be considered "sanctions". Such acts could pursue a plurality of goals including the pursuit of public interest and public policy, the protection of the community against an imminent danger (to public health, the quality of the environment, security of employment, etc.) by way of preventive measures as well as a punitive goal. Often there might be uncertainty as to which is the prevailing aim of the administrative act. This recommendation shall apply only to those administrative acts, here defined as administrative sanctions, whose principle aim is of a punitive nature. By way of example, refusal to grant, or to renew, a licence on the grounds that the applicant is not a fit and a proper person, within the eaning of the applicable rules, shall not be considered as an administrative sanction for the purposes of this recommendation. The same goes for prohibitions or the withdrawal of licences in order to protect the environment, public health, etc., from further acts of the person concerned.
Administrative sanctions may take many forms. Without aspiring to give an exhaustive list, one might mention fines or higher charges, confiscation of goods, closure of an undertaking, a ban on practising an activity and suspension or withdrawal of licences, permits or authorisations necessary to the conduct of a business, industry or occupation or to the exercise of some form of freedom.
Whilst the rules whose breach entails the legal consequence of an administrative sanction might be classified under any branch of the law (civil, criminal or other), sanctions (civil, criminal or other) that do not fall within the concept of administrative sanctions as described above, do not fall within the scope of this recommendation.
Not classed as administrative sanctions within the meaning of the recommendation are administrative measures which arise as a necessary consequence of a criminal conviction as well as disciplinary sanctions, both sanctions applicable within the administration and sanctions applicable within organised professional activities. Since disciplinary sanctions are excluded, a fortiori other measures taken by an administrative authority with respect to its staff for reasons pertaining to the latter’s behaviour, are also excluded.
In keeping with the previous recommendations, the persons concerned may be physical or legal, in as much as administrative sanctions may be imposed on legal persons under the domestic law of the state implementing the recommendation."
2. The definition of 'administrative sanctions' in the case law of the ECtHR
See on the definitions of 'administrative sanctions' in the case law of the ECtHR:
- A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 4.01 ff.
-
Baris Bahceci, 'Redefining the Concept of Penalty in the Case-law of the European Court of Human Rights' (2020) 26 EPL, pp. 867 - 888
ECtHR (Plenary), judgement Engel and others v. the Netherlands (5100/71; 5101/71; 5102/71; 5354/72; 5370/72) 8 June 1976
"80. All the Contracting States make a distinction of long standing, albeit in different forms and degrees, between disciplinary proceedings and criminal proceedings. For the individuals affected, the former usually offer substantial advantages in comparison with the latter, for example as concerns the sentences passed. Disciplinary sentences, in general less severe, do not appear in the person's criminal record and entail more limited consequences. It may nevertheless be otherwise; moreover, criminal proceedings are ordinarily accompanied by fuller guarantees.
It must thus be asked whether or not the solution adopted in this connection at the national level is decisive from the standpoint of the Convention. Does Article 6 (art. 6) cease to be applicable just because the competent organs of a Contracting State classify as disciplinary an act or omission and the proceedings it takes against the author, or does it, on the contrary, apply in certain cases notwithstanding this classification? This problem, the importance of which the Government acknowledge, was rightly raised by the Commission; it particularly occurs when an act or omission is treated by the domestic law of the respondent State as a mixed offence, that is both criminal and disciplinary, and where there thus exists a possibility of opting between, or even cumulating, criminal proceedings and disciplinary proceedings.
81. The Court has devoted attention to the respective submissions of the applicants, the Government and the Commission concerning what they termed the "autonomy" of the concept of a "criminal charge", but does not entirely subscribe to any of these submissions [...].
The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7 (art. 7). Such a choice, which has the effect of rendering applicable Articles 6 and 7 (art. 6, art. 7), in principle escapes supervision by the Court.
The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The Court therefore has jurisdiction, under Article 6 (art. 6) and even without reference to Articles 17 and 18 (art. 17, art. 18), to satisfy itself that the disciplinary does not improperly encroach upon the criminal.
In short, the "autonomy" of the concept of "criminal" operates, as it were, one way only.
82. Hence, the Court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6).
In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the Court expresses its agreement with the Government.
However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the "criminal" sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so [...].
83. It is on the basis of these criteria that the Court will ascertain whether some or all of the applicants were the subject of a "criminal charge" within the meaning of Article 6 para. 1 (art. 6-1). [...]"On the 'Engel criteria' and their subsequent application by the ECtHR: A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 4.11 ff.
ECtHR (GC), judgement Jussila v. Finland (73053/01) 23 November 2006:
"43. While it may be noted that the above-mentioned cases in which an oral hearing was not considered necessary concerned proceedings falling under the civil head of Article 6 § 1 and that the requirements of a fair hearing are the most strict in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly "criminal charges" of differing weight. What is more, the autonomous interpretation adopted by the Convention institutions of the notion of a "criminal charge" by applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law, for example administrative penalties [...], prison disciplinary proceedings [...], customs law [...], competition law [...], and penalties imposed by a court with jurisdiction in financial matters [...]. Tax surcharges differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency [...].
On this 'Jussila concession' and its subsequent application by the ECtHR: A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 4.43 ff.
II. The Principles of Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions
Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions:
The Committee of Ministers [...];
Considering that administrative authorities enjoy considerable powers of sanction as a result of the growth of the administrative state as well as a result of a marked tendency towards decriminalisation ;
[...] ;
Considering that administrative acts imposing an administrative sanction should be subjected to additional guarantees ;
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.
[...].
Principles
Principle 1
The applicable administrative sanctions and the circumstances in which they may be imposed shall be laid down by law.
Principle 2
1. No administrative sanction may be imposed on account of an act which, at the time when it was committed, did not constitute conduct contrary to the applicable rules. Where a less onerous sanction was in force at the time when the act was committed, a more severe sanction subsequently introduced may not be imposed.
2. The entry into force, after the act, of less repressive provisions should be to the advantage of the person on whom the administrative authority is considering imposing a sanction.
Principle 3
1. A person may not be administratively penalised twice for the same act, on the basis of the same rule of law or of rules protecting the same social interest.
2. When the same act gives rise to action by two or more administrative authorities, on the basis of rules of law protecting distinct social interests, each of those authorities shall take into account any sanction previously imposed for the same act.
Principle 4
1. Any action by administrative authorities against conduct contrary to the applicable rules shall be taken within a reasonable time.
2. When administrative authorities have set in motion a procedure capable of resulting in the imposition of an administrative sanction, they shall act with reasonable speed in the circumstances.
Principle 5
Any procedure capable of resulting in the imposition of an administrative sanction which has been instituted in respect of a person shall give rise to a decision which terminates the proceedings.
Principle 6
1. In addition to the principles of fair administrative procedure governing administrative acts as set out in Resolution (77) 31, the following principles shall apply specifically to the taking of administrative sanctions:
i. Any person faced with an administrative sanction shall be informed of the charge against him;
ii. He shall be given sufficient time to prepare his case, taking into account the complexity of the matter as well as the severity of the sanctions which could be imposed upon him;
iii. He or his representative shall be informed of the nature of the evidence against him;
iv. He shall have the opportunity to be heard before any decision is taken;
v. An administrative act imposing a sanction shall contain the reasons on which it is based.
2. Subject to the consent of the person concerned and in accordance with the law, the principles in paragraph 1 may be dispensed with in cases of minor importance, which are liable to limited pecuniary penalties.
However, if the person concerned objects to the proposed sanction, all the guarantees of paragraph 1 shall apply.
Principle 7
The onus of proof shall be on the administrative authority.
Principle 8
An act imposing an administrative sanction shall be subject, as a minimum requirement, to control of legality by an independent and impartial court established by law."
On these principles see Explanatory memorandum (European Committee on Legal Co-operation (CDCJ) - 54th meeting (Strasbourg, 3 - 7 December 1990) - Meeting report, pp. 56 ff.)
Cf. also CoE (ed.), The Administration and you (2nd edition 2018), pp. 38 ff.
"Principle 15 – Administrative sanctions
Administrative sanctions shall be prescribed by law and only imposed by public authorities on individuals within clearly prescribed conditions.
[...].
Commentary
Principle 15 applies where there has been a breach of an administrative rule or where there has been a failure to comply with an administrative decision. It does not concern measures that public authorities are required to take as a result of civil proceedings or disciplinary sanctions which are not considered to be administrative sanctions.
By way of example, a refusal to grant or renew a licence on the grounds that the applicant no longer fulfils the necessary requirements shall not be considered as an administrative sanction. Rather than being punitive, the prohibition or the withdrawal of a licence may be due to new laws introduced to protect, for example, the environment or public health.
Administrative sanctions may be imposed by public authorities by way of a fine or any other monetary or non-monetary measure. [...].
Public authorities are entitled to establish appropriate systems of administrative sanctions in order to ensure individuals comply with their decisions. In order to ensure that administrative sanctions are lawfully imposed, the power of public authorities to impose sanctions must be provided for in legislation. The legislation should also lay down the level of pecuniary sanctions that may be imposed by public authorities in particular circumstances and define those cases where sanctions can restrict the exercise of fundamental rights. A margin of discretion may be left to the relevant public authority to determine the specific circumstances in which particular sanctions may be imposed.
The "fair trial" safeguards, a precondition for imposing an administrative sanction, reflect the protections contained in Article 6 of the European Convention on Human Rights and should apply where appropriate. In cases of minor infringements carrying small pecuniary penalties, such safeguards may be relaxed where the individual concerned consents. In certain cases, notably parking fines, the requirement of good and efficient administration may call for simplified procedures, even if the person concerned does not consent. In addition, where an individual has been found to be in breach of a particular administrative rule and the sanctions for this breach have been amended or replaced prior to the determination of the type or level of fine appropriate, he or she should be entitled to benefit from the level or type of sanction most favourable to him or her.
Examples of administrative sanctions other than fines include increases in charges, confiscation of goods, ordering the closure of a business, banning the practice of a professional activity, or suspending or withdrawing licences, permits or authorisations. Whether or not a particular act is an administrative sanction will depend on the relevant administrative rules."
III. Case Law of the ECtHR on the Relevance of the 'Criminal Limb' of Article 6 ECHR for Administrative Sanctions
A summary of this case law is presented in ECtHR (ed.), Guide on Article 6 of the European Convention of Human Rights - Right to a fair trial (criminal limb) (version of August 2022), para. 15 ff.
See, furthermore, A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 5.01 ff.
IV. Case Law of the ECtHR on the Relevance of Article 7 ECHR for Administrative Sanctions
A summary of this case law is presented in ECtHR (ed.), Guide on Article 7 of the European Convention of Human Rights - No punishment without law: the principle that only the law can define a crime and prescribe a penalty (version of August 2022) para. 3 ff.
Cf., e. g., ECtHR, judgment Sergey Zolotukhin v. Russia (14939/03) 10 February 2009
See, furthermore
- A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 7.01 ff.
V. Case Law of the ECtHR on the Relevance of Article 4 of Protocol No. 7 to the European Convention on Human Rights for Administrative Sanctions
A summary of this case law is presented in ECtHR (ed.), Guide on Article 4 of Protocol No. 7 to the European Convention on Human Rights - Right not to be tried or punished twice (version of August 2022), para. 9 ff.
See, furthermore, A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 6.01 ff.
Cf. e. g. ECtHR, judgment Menarini Diagnostics S.r.l. v. Italy (43509/08) 27 September 2011
VI. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review
Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions:
"The Committee of Ministers [...];
Considering that administrative authorities enjoy considerable powers of sanction as a result of the growth of the administrative state as well as a result of a marked tendency towards decriminalisation ;
Considering that it is desirable, from the point of view of protection of the individual, to contain the proliferation of administrative sanctions by submitting them to a set of principles ;
Recalling the general principles governing the protection of the individual in relation to acts of administrative authorities set out in its Resolution (77) 31 and the principles concerning the exercise of
discretionary powers by administrative authorities contained in its Recommendation No. R (80) 2 ;
Considering that administrative acts imposing an administrative sanction should be subjected to additional guarantees ;
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation."
"1. [...] The common purpose of [the activities of the CoE in the field of administrative law] is to promote protection of the individual vis a vis the action of public authorities with a view to maintaining the balance which characterises the sphere of public freedoms.
2. Failing efforts to preserve it, this balance may appear extremely precarious in the field of administrative sanctions, the volume of which has constantly expanded through a combination of factors. The first of these is the growth of the administrative state, which has not been substantially called into question by recent trends towards deregulation and privatisation. Administrations now play a part in the regulatory framework governing many different sectors of social life: they lay down the rules, supervise their enforcement and wield a broad panoply of instruments for compelling individuals to comply and for sanctioning failure to do so. This applies particularly to such areas as social security, taxation, environmental protection, town planning, public health, trade, etc. This situation is compounded by decriminalisation processes, which tend to transfer punishment of a number of offences from the criminal to the administrative sphere. Administrative sanctions are administrative acts of a particular type which can have very severe consequences for individuals, for instance when they comprise measures involving restriction or deprivation of rights. It seems desirable to supplement the general principles applicable to performance of administrative acts and exercise of discretionary powers (embodied, for instance in Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities and Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities) with a number of specific principles, without prejudice to possible application of the guarantees contained in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such is the purpose of the present Recommendation."
The decision to impose a sanction can, thus, be considered
- as an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal (administrative acts")
and
- as an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal (administrative acts)"
and
- as an 'individual decision' in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
and
- as an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").
Thus, the basic principles enshrined in these recommendations may apply also in the case of decisions imposing a sanction, i.e. the pan-European general principles
- on discretion (for these principles click here),
- fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here) and
- on judicial review (for these principles click here).
← back
The Pan-European General Principles on Administrative Procedure and Procedural Rights
(compiled by Ulrich Stelkens)
II. General Right to a Fair and Impartial Administrative Procedure
IV. Right of Every Person to Have Access to His or Her File
V. Right to Representation and Assistance
VI. Obligation to Take Decisions on the Basis of Duly Established Facts
VII. Form and Notification of Administrative Decisions
VIII. Obligation of the Administration to Give Reasons for its Decisions
IX. Procedural Rights and Obligations in Enforcement Proceedings
X. Judicial Review of Procedural Errors
I. Delimitation of the Scope of the Pan-European General Principles on Administative Procedure to the Scope of Application of more Specialised Principles
The pan-European general principles of administrative procedure and procedural rights do not cover administrative rulemaking procedures (for the pan-European general principles governing these procedures click here). They cover administrative procedures
- in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities,
- in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration as far as its provisions are applicable to 'individual decisions', and
- procedures concerning the conclusion and execution of public contracts outside competitive award procedures (these procedures are (partly) covered by both recommendations but not explicitly).
Therefore, the pan-European general principles on administrative procedure and procedural rights focus on 'simple' administrative procedures concerning single case decisions of a public authority whether unilateral or contractual. Following the typology of J. A. Gonzáles ('The Evolution of Administrative Procedure Theory in ‘New Governance’ Key Point', (2013) 6:1 REALaw, pp. 73, 109 (pp. 79 ff.)) 'simple procedures' could be described as procedures that involve a limited number of persons and imply a rather "bureaucratic and legal decision-making process". Mainly these 'simple procedures' are also in the focus on the pertinent chapters in CoE (ed.), The administration and you (1st edition 1996/1997), para. 33 ff. (pp. 21 ff.) and CoE (ed.), The administration and you (2nd edition 2018), pp. 27 f. This does not mean that the pan-European general principles on administrative procedure and procedural rights are entirely inapplicable in more 'complex' procedures. However, if they are the applicable in 'complex procedures' this applicability is in general only of a subsidiary nature.
The counterpart to a 'simple procedure' would be a 'complex procedure'. 'Complex procedures' could be caracterised as procedures concerning complex legal mulitlateral relationships, involving a large number of persons and/or the "exercise of discretionary powers, regulatory strategies based on goal-oriented programmes" (cf. J. A. Gonzáles ('The Evolution of Administrative Procedure Theory in ‘New Governance’ Key Point', (2013) 6:1 REALaw, pp. 73, 109 (pp. 79 ff.))
Therefore, the pan-European general principles on administrative procedures do not cover the specifics of
- administrative sanctioning procedures (for the pan-European general principles governing these procedures click here)
- public procurement and other competitive award procedures (for the pan-European general principles governing these procedures click here)
- administrative decisions which are neither individual nor regulatory in the sense of Art. 11 (3) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration (for these procedures click here)
- administrative procedures involving a large number of persons in the sense of Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons, especially 'spatial planning procedures' (for a definition of 'spatial planning decisions' and the pan-European general principles governing spatial planning procedures click here)
- internal review procedures (for the pan-European general principles governing these procedures click here)
- transnational administrative procedures (for the pan-European general principles on transnational mutual assistance and participation in administrative procedures click here)
II. General Right to a Fair and Impartial Administrative Procedure
Right to a fair administrative procedure = Every person's right to have his or her affairs handled impartially, fairly and within a reasonable time by public authorities (cf. Article 41 (1) of the Charter of Fundamental Rights of the European Union)
3. The CoE handbook "The administration and you"
1. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 4 - Principle of impartiality
(1) Public authorities shall act in accordance with the principle of impartiality.
(2) They shall act objectively, having regard to relevant matters only.
(3) They shall not act in a biased manner.
(4) They shall ensure that their public officials carry out their duties in an impartial manner, irrespective of their personal beliefs and interests."
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 87 ff. and the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 57 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
"Article 7 - Principle of taking action within a reasonable time limit
Public authorities shall act and perform their duties within a reasonable time."
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 66 ff. and the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 119 ff. ; for the genesis of Recommendation CM/Rec(2007)7 in general click here
"Article 13 – Requests from private persons
(1) Private persons have the right to request public authorities to take individual decisions which lie within their competence.
(2) Decisions in response to requests to public authorities shall be taken within a reasonable time which can be defined by law. Remedies for cases where no such decision has been taken should be foreseen.
(3) When such a request is made to an authority lacking the relevant competence, the recipient shall forward it to the competent authority where possible and advise the applicant that it has done so.
(4) All requests for individual decisions made to public authorities shall be acknowledged with an indication of the expected time within which the decision will be taken, and of the legal remedies that exist if the decision is not taken. An acknowledgement in writing may be dispensed with where public authorities respond promptly with a decision."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 10 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
ECtHR, judgement Beyeler v Italy (33202/96) 5 January 2000
"120. The Court considers that the Government have failed to give a convincing explanation as to why the Italian authorities had not acted at the beginning of 1984 in the same manner as they acted in 1988, regard being had in particular to the fact that, under section 61(2) of Law no. 1089 of 1939 [...], they could have intervened at any time from the end of 1983 onwards and in respect of anyone “in possession” of the property (and thus without needing first to determine who the owner of the painting was). That is, moreover, apparent from the judgment of the Court of Cassation of 16 November 1995 [...]. Thus, taking punitive action in 1988 on the ground that the applicant had made an incomplete declaration, a fact of which the authorities had become aware almost five years earlier, hardly seems justified. In that connection it should be stressed that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency.
121. That state of affairs allowed the Ministry of Cultural Heritage to acquire the painting in 1988 at well below its market value. Having regard to the conduct of the authorities between December 1983 and November 1988, the Court considers that they derived an unjust enrichment from the uncertainty that existed during that period and to which they had largely contributed. Irrespective of the applicant's nationality, such enrichment is incompatible with the requirement of a "fair balance".
122. Having regard to all the foregoing factors and to the conditions in which the right of pre-emption was exercised in 1988, the Court concludes that the applicant had to bear a disproportionate and excessive burden. There has therefore been a violation of Article 1 of Protocol No. 1."
ECtHR, judgment Church of Scientology Moscow v Russia (18147/02) 5 April 2007
"91. The Court observes that the Moscow Justice Department refused to process at least four applications for re-registration, referring to the applicant's alleged failure to submit a complete set of documents […]. However, it did not specify why it deemed the applications incomplete. Responding to a written inquiry by the applicant's president, the Moscow Justice Department explicitly declined to indicate what information or document was considered missing, claiming that it was not competent to do so […]. The Court notes the inconsistent approach of the Moscow Justice Department on the one hand accepting that it was competent to determine the application incomplete but on the other hand declining its competence to give any indication as to the nature of the allegedly missing elements. Not only did that approach deprive the applicant of an opportunity to remedy the supposed defects of the applications and re-submit them, but also it ran counter to the express requirement of the domestic law that any refusal must be reasoned. By not stating clear reasons for rejecting the applications for re-registration submitted by the applicant, the Moscow Justice Department acted in an arbitrary manner. Consequently, the Court considers that that ground for refusal was not "in accordance with the law".
92. Examining the applicant's complaint for a second time, the District Court advanced more specific reasons for the refusal, the first of them being a failure to produce the original charter, registration certificate and the document indicating the legal address […]. Furthermore, the Court considers that the requirement to enclose originals with each application would have been excessively burdensome, or even impossible, to fulfil in the instant case. The Justice Department was under no legal obligation to return the documents enclosed with applications it had refused to process and it appears that it habitually kept them in the registration file. As there exists only a limited number of original documents, the requirement to submit originals with each application could have the effect of making impossible re-submission of rectified applications for re-registration because no more originals were available. This would have rendered the applicant's right to apply for re-registration as merely theoretical rather than practical and effective as required by the Convention […]. It was pointed out by the applicant, and not contested by the Government, that the Moscow Justice Department had in its possession the original charter and registration certification, as well as the document evidencing its address, which had been included in the first application for re-registration in 1999 and never returned to the applicant. In these circumstances, the District Court's finding that the applicant was responsible for the failure to produce these documents was devoid of both factual and legal basis.
93. The Nikulinskiy District Court also determined that the applicant had not produced information on the basic tenets of creed and practices of the religion. The Court has previously found that the refusal of registration for a failure to present information on the fundamental principles of a religion may be justified in the particular circumstances of the case by the necessity to determine whether the denomination seeking recognition presented any danger for a democratic society […]. The situation obtaining in the present case was different. It was not disputed that the applicant had submitted a book detailing the theological premises and practices of Scientology. The District Court did not explain why the book was not deemed to contain sufficient information on the basic tenets and practices of the religion required by the Religions Act. The Court reiterates that, if the information contained in the book was not considered complete, it was the national courts' task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents […]. This had not, however, been done. Accordingly, the Court considers that this ground for refusing re-registration has not been made out.
94. […] In any event, as the Court has found above, the applicant's failure to secure re-registration within the established time-limit was a direct consequence of arbitrary rejection of its earlier applications by the Moscow Justice Department."
3. The CoE handbook "The administration and you"
CoE (ed.), The administration and you (1st edition 1996/1997), pp. 21 ff.:
"V – Objectivity and impartiality
25. All the factors relevant to a particular administrative act should be taken into account, while giving each its proper weight. Factors which are not relevant must be excluded from consideration.
26. An administrative act must not be influenced by the private or personal interests or prejudices of the person taking it.
27. Therefore, no civil servant or employee of an administrative authority should be involved in the taking of an administrative act in a matter concerning his or her own financial or other interests, or those of his or her family, friends or opponents or in any appeal against an administrative act which he himself or she herself has taken, or where other circumstances undermine his or her impartiality.
27.1. Comment: “Friends or opponents” in the sense of this principle are persons towards whom the official involved in the taking of the administrative act has a positive or negative predisposition. The notion implies a close relation between the official and the private person concerned, be it an ongoing or a former relation (example : divorced spouse).
28. Even the appearance of bias should be avoided."
CoE (ed.), The administration and you (2nd edition 2018), p. 14:
"Principle 3 – Objectivity and impartiality
Public authorities shall exercise their powers having regard to relevant matters only. They shall not act in a biased manner or be perceived to do so..
[...]
Commentary
All factors relevant to a particular administrative decision should be taken into account by a public authority when making its decision, with each factor given its
proper weight. Factors that are not relevant must be excluded from consideration. An administrative decision must not be influenced by the personal interests or prejudices of the public official making the decision. Even the appearance of bias must be avoided.
Public authorities have a responsibility to ensure their officials carry out their duties in an impartial manner irrespective of their personal beliefs and interests. No public official should be involved in an administrative decision that concerns his or her own financial or other personal interests, or those of his or her family, friends or opponents.
He or she should not be involved in any appeal against an administrative decision that he or she has taken. Other circumstances may arise which could undermine his or her impartiality, for example in the case of “friends or opponents” towards whom a public official has a positive or negative predisposition, or with whom the official has a close relationship (for example, a divorced spouse).
Moreover, public officials are subject to inherent obligations in the exercise of their public functions. These obligations include discretion, accountability, neutrality and, more generally, loyalty to democratic institutions and respect for the rule of law. In order to avoid conflicts of interest and corruption, public officials may be subject to restrictions regarding second jobs and participation in political activities
CoE (ed.), The administration and you (1st edition 1996/1997), pp. 21 ff.:
"I – Access to public services
33. Everyone has the right to make representations to an administrative authority which has a corresponding obligation to accept and deal with them properly. The proper way of dealing with a representation depends on its nature and is defined by domestic law.
33.1. Comment: Many constitutions expressly grant a “right to petition” which includes the right to make representations to the administrative authorities.
33.1. Comment: The term “representation” is meant to comprise all kinds of more or less formal requests, applications, petitions, complaints, etc., which are
brought before the administrative authorities, be it in writing or orally.
34. Where a formal representation (request or complaint) is made with a view to obtaining or safeguarding a benefit to which the private person is legally entitled, domestic law may request :
(i) that the private person make it within specified time-limits, which must be reasonable ;
(ii) that the administrative authorities take a formal act in response; time-limits can be fixed as to when that response has to be given by the administrative authorities [...].
35. Even an informal representation :
(i) must not be refused without being examined ; and
(ii) should give rise to a response by the administrative authorities unless it is manifestly frivolous or absurd.
36. The administrative authority shall, as necessary, provide guidance on how to initiate proceedings and how to proceed in a matter falling within its competence.
(i) Where a representation is made to an administrative authority which is not the competent one, that authority shall, where this can reasonably be expected, transmit it to the competent administrative authority and notify the interested person thereof.
(ii) The proper forms for the different types of representations are defined by domestic law. If a representation is not made in the proper form, the administrative authority has the duty to accept it and, if necessary, either assist the private person in putting it into the proper form or give the necessary advice.
(iii) The administrative authority should be ready to provide information which allows the private person :
– to find the most efficient way to achieve his or her aim ;
– to assess his or her chances for obtaining that aim.
36.1. Comment: The need of the private person to obtain guidance for communicating with the authority forms the basis for providing guidance. Therefore the person in need of guidance has to take the initiative by asking for advice from the authority. However, the person’s factual need to receive advice determines the scope of the administrative authority’s duty to provide guidance. Guidance should be provided to such an extent that the person is capable of meeting the requirements set by the procedure. In some cases the very fact of a private person contacting the administrative authority should be interpreted by it as a request for advice. Namely, there should be a liberal attitude by the administrative authority as regards the provision of information which it should give only “upon request” [...]. The overall principle is that administrative authorities must be friendly with private persons and, as a general attitude, “be at their service”.
36.2. Comment re (i): Rejection instead of transmission might be reasonable, for example, if the competent administrative authority cannot clearly be
identified or belongs to a totally different branch of the administration.
36.3. Comment re (ii): Guidance includes only giving various kinds of advice, whereas drawing up documents on behalf of a private person, for instance, does not fall within the tasks of an administrative authority, unless otherwise specified in domestic law (as it can be, for instance, in the domain of social affairs).
36.4. Comment re (ii): One aspect of the proper form is the language used for the representation. Representations made in a foreign or a minority language
should be accepted and properly dealt with to the extent possible where the private person is not able to use the official language of the competent administrative authority. To what extent the deliberate use of minority languages in the relations with the administrative authorities is accepted is subject to rules of domestic law.
36.5. Comment re (iii): The kind of information envisaged here is information on the relevant administrative guidelines, on established interpretations of the relevant legal provisions, on the practice of the office in question, etc. The civil servant providing guidance has to act without risking his impartiality. Guidance should not take the form of advocacy, which would, in fact, disqualify the authority from handling the case. Guidance must carefully respect the principle of equality between the parties.
37. Administrative procedures shall, as far as practicable, be in a form which minimises the costs of participation therein for the person concerned."
CoE (ed.), The administration and you (2nd edition 2018), pp. 27 f.:
"Principle 8 – Access
Public authorities shall entertain and respond to requests for administrative decisions from individuals in relation to matters within their competence and in relation to which the individuals concerned have a legitimate interest, including the possibility of initiating an administrative procedure.
[...]
Commentary
Everyone has a right to request public authorities to make decisions on matters within their competence, particularly where services are provided to individuals
entitled to benefit.
Public authorities must make information on their competences available. They must also provide information on how individuals can make specific applications and include guidance on how forms are to be completed along with the procedures to be followed. Where an individual fails to use the appropriate form, this should not be a ground for the automatic rejection of his or her application. Rather, officials of the public authority should assist the individual in completing the appropriate form in the correct manner or otherwise give appropriate guidance to ensure that the public authority has the information it requires to make a properly grounded decision. Public authorities need to adopt a welcoming and supportive attitude towards individuals who approach them with requests for information, particularly in the case of children or other vulnerable persons.
When giving guidance and information, public officials shall act impartially and ensure that all persons are treated equally and receive the same degree of objective information or guidance, particularly where a decision may concern several individuals [...]. Guidance may extend to drawing up or completing
documents but must not include advice as this would compromise the public authority’s neutrality and could possibly give grounds for a successful appeal against
any administrative decision it might make in a matter.
A public authority is required to answer all requests received but does not have to afford the same attention to manifestly abusive requests, particularly where they are repetitive or are made in large numbers. National law will determine the extent to which minority or foreign languages are to be accepted by public authorities and whether requests made in a foreign or a minority language can be accepted and dealt with where the individual is not able to use the official language of the competent public authority. The European Charter for Regional or Minority Languages (ETS No. 148) and the Framework Convention for the Protection of National Minorities (ETS No. 157) provide for undertakings to be given in relation to the use of regional and minority languages by public authorities and public service providers where the number of persons or their traditional presence so requires. The European Charter for Regional or Minority Languages provides that users of regional or minority languages may submit oral or written requests and receive a reply in these languages.
Where an application is made to a public authority which is not the competent authority, it should, where possible, transfer the application to the competent authority and notify the interested person accordingly. The return rather than transfer of an application might be reasonable if the competent authority cannot clearly be identified or belongs to a totally different branch of the public administration. In such cases the individuals concerned should be informed."
CoE (ed.), The administration and you (1st edition 1996/1997), p. 26:
"IV – Time-limits
47. If a procedure requires the taking of a formal administrative act at the end of it, the administrative authority (or authorities) involved must complete the different stages of the procedure and take the act within a reasonable time. This principle applies no matter whether the procedure was initiated by the administrative authority itself or by a private person.
47.1. Comment: Prompt expedition of any procedure for the determination of private persons’ rights and obligations is an intrinsic element of justice. The promptitude requirement in respect of procedures, which is also to be found in Article 6, paragraph 1 of the European Convention on Human Rights, is imposed further by the objective of certainty of the law. In fact, before an act terminating an administrative procedure is taken – and up to the expiry of any time-limits after which failure to act can be considered as equivalent to action – the procedure remains pending and hence the legal situation undefined. Only the administrative act terminating the procedure opens the possibility of taking action against the procedure or the final administrative act (whereas any action taken before that moment can only aim at obliging the administrative authorities to take an administrative act).
48. A failure to act (silence or inaction) must, under national law :
(i) either be considered, after a specified period of time, as equivalent to an act (positive or negative decision) ;
(ii) or be subject to possible control by an administrative or judicial authority competent for that purpose (control for omission)."
CoE (ed.), The administration and you (2nd edition 2018), p. 34:
"Principle 12 – Time limits
Administrative procedures that may lead to a decision affecting the rights or interests of an individual shall be completed within a reasonable time.
[...]
Commentary
Public authorities must make decisions in accordance with time limits prescribed by national law or within a reasonable period of time, thereby ensuring legal certainty for all parties. If an administrative procedure is to proceed in stages it is important that each stage is completed as expeditiously as possible and the final decision is taken within a reasonable period of time from the commencement of the process. The principle applies whether the administrative procedure is initiated by the public authority itself or by an individual. A reasonable time limit depends on the nature of the decision to be made and the administrative procedure to be followed. In all cases, time limits set by public authorities should reflect the principles of good administration.
Where specified time limits are prescribed, they may apply to each stage of the administrative procedure, for example a time frame for lodging applications, filing
any supporting submissions, or replying to queries from the public authority or other persons concerned by the proposed decision. To encourage public authorities to respond to requests from individuals in an expeditious manner, national law should specify a time limit by which a decision must be made, whether negative or positive, and provide for internal or judicial review where the public authority fails to respond to a request or fails to make a decision."
4. The CoE handbook "The administration and you"
1. Principle I of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Right to be heard
(1) In respect of any administrative act of such nature as is likely to affect adversely his rights, liberties or interests, the person concerned may put forward facts and arguments and, in appropriate cases, call evidence which will be taken into account by the administrative authority.
(2) In appropriate cases the person concerned is informed, in due time and in a manner appropriate to the case, of the rights stated in the preceding paragraph."
On this principle I Explanatory memorandum (p. 16 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"15. In conformity with the underlying idea of the resolution - to achieve a high degree of fairness in the relations between the administration and the individual - this principle provides that the person concerned is given an opportunity to be heard during the administrative procedure: he may put forward facts and arguments and, where appropriate, call evidence. The person concerned will thus be enabled to participate in the procedure concerning an administrative act and can defend his rights, liberties and legitimate interests.
The term "right to be heard" is not to be taken literally. The person concerned may present his case in writing or orally, whichever is more appropriate. [...]
19. If the person concerned is to use this entitlement effectively he must be aware of it. The second paragraph therefore requires the administration to inform him - in appropriate cases and in due time; ie in sufficient time to enable him to avail himself of his entitlement - of the possibility to put forward facts, arguments and evidence. This information may be given in any way suitable to the case in question, eg by letter, public notices in the press or by posters displayed at an appropriate place."
See also the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), p. 4:
"The right of an individual to be heard by the administrative organ before it will take a decision affecting him can be considered to offer a double safeguard. On the one hand, it safeguards equity: the individual will thus be called upon to participate in the proceedings concerning the decision an has the possibility of defending his legitimate rights and interests. [...]. On the other hand, the principle of hearing the person concerned provides a safeguard for good administration: it implies that the administration will be fully informed before taking the decision; furthermore it will help to establish a climate of collaboration and trust between the administration and the citizens."
See furthermore the analysis of Principle I of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 46 ff.); for the genesis of Resolution (77)31 in general click here
2. Art. 14 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 14 – Right of private persons to be heard with regard to individual decisions
If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 16; for the genesis of Recommendation CM/Rec(2007)7 in general click here.
ECtHR [Plenary], judgment W v United Kingdom (9749/82) 8 July 1987:
"61. The applicant did not assert that the Authority’s decisions were not "in accordance with the law" or lacked a legitimate aim. The material before the Court contains nothing to suggest that the first of these requirements, as interpreted in the Court’s case-law [...], was not satisfied. Neither is there any evidence that the measures taken were not designed to achieve a legitimate purpose, namely the protection of health or of the rights and freedoms of others.
Debate centred on the question whether the procedures followed had respected the applicant’s family life or constituted an interference with the exercise of the right to respect for family life which could not be justified as "necessary in a democratic society". The applicant and the Commission took the view that the procedures applicable to the determination of issues relating to family life had to be such as to show respect for family life; in particular, according to the Commission, parents normally had a right to be heard and to be fully informed in this connection, although restrictions on these rights could, in certain circumstances, find justification under Article 8 § 2 (art. 8-2). The Government, as their principal plea, did not accept that such procedural matters were relevant to Article 8 (art. 8) or that the right to know or to be heard were elements in the protection afforded thereby.
62. The Court recognises that, in reaching decisions in so sensitive an area, local authorities are faced with a task that is extremely difficult. To require them to follow on each occasion an inflexible procedure would only add to their problems. They must therefore be allowed a measure of discretion in this respect.
On the other hand, predominant in any consideration of this aspect of the present case must be the fact that the decisions may well prove to be irreversible: thus, where a child has been taken away from his parents and placed with alternative carers, he may in the course of time establish with them new bonds which it might not be in his interests to disturb or interrupt by reversing a previous decision to restrict or terminate parental access to him. This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences.
It is true that Article 8 (art. 8) contains no explicit procedural requirements, but this is not conclusive of the matter. The local authority’s decision-making process clearly cannot be devoid of influence on the substance of the decision, notably by ensuring that it is based on the relevant considerations and is not one-sided and, hence, neither is nor appears to be arbitrary. Accordingly, the Court is entitled to have regard to that process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8 (art. 8). Moreover, the Court observes that the English courts can examine, on an application for judicial review of a decision of a local authority, the question whether it has acted fairly in the exercise of a legal power [...].
63. The relevant considerations to be weighed by a local authority in reaching decisions on children in its care must perforce include the views and interests of the natural parents. The decision-making process must therefore, in the Court’s view, be such as to secure that their views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them. In fact, the 1983 Code of Practice stresses the importance of involving parents in access decisions [...].
64. There are three factors which have a bearing on the practicalities of the matter. Firstly, as the Commission pointed out, there will clearly be instances where the participation of the natural parents in the decision-making process either will not be possible or will not be meaningful - as, for example, where they cannot be traced or are under a physical or mental disability or where an emergency arises. Secondly, decisions in this area, whilst frequently taken in the light of case reviews or case conferences, may equally well evolve from a continuous process of monitoring on the part of the local authority’s officials. Thirdly, regular contacts between the social workers responsible and the parents often provide an appropriate channel for the communication of the latter’s views to the authority.
In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as "necessary" within the meaning of Article 8 (art. 8)."
ECtHR [GC], judgement K. and T. v. Finland (25702/94) 12 July 2001:
"166. The Court accepts that, when an emergency care order has to be made, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor, as the Government point out, may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be liable to deprive the measure of its effectiveness. The Court must however be satisfied that in the present case the national authorities were entitled to consider that in relation to both J. and M. there existed circumstances justifying the abrupt removal of the children from the care of the applicants without any prior contact or consultation. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the applicants and the children, as well as of the possible alternatives to taking the children into public care, was carried out prior to the implementation of such a measure.
167. The Court acknowledges that it was reasonable for the competent authorities to believe that if K. had been forewarned of the intention to take either M. or the expected child away from her care, this, in view of her fragile mental health, could most likely have had dangerous consequences both for herself and for her children (see paragraph 24 above). The Court also accepts as reasonable, in the light of the evidence before the national authorities, their assessment that T. was not capable of coping with the mentally ill K., the expected baby and M. on his own. Likewise, associating only T. in the decision-making process was not a realistic option for the authorities, taking into account the close relationship between the applicants and the likelihood of their sharing information."
ECtHR, judgement Megadat.com SRL v Moldova (21151/04) 8 April 2008:
"73. The Court has also given due consideration to the procedural safeguards available to the applicant company to defend its interests. It notes in the first place that the applicant company was not given an opportunity to appear and explain its position before ANRTI. Procedural safeguards also appear to have failed at the stage of the court proceedings. While the case was not one which required special expediency under the domestic law, the Court of Appeal appears to have acted with particular diligence in that respect. After setting the date of the first hearing, the Court of Appeal acceded to ANRTI’s request to speed up the proceedings and advanced the hearing by two weeks [...]. Not only did the Court of Appeal decide the case in the applicant company’s absence, but it failed to provide reasons for dismissing the latter’s request for adjournment. The Court notes in this connection that the matter to be examined by the Court of Appeal affected the applicant company’s economic survival [...].
79. The arbitrariness of the proceedings, the discriminatory treatment of the applicant company and the disproportionately harsh measure applied to it lead the Court to conclude that it has not been shown that the authorities followed any genuine and consistent policy considerations when invalidating the applicant company’s licences. Notwithstanding the margin of appreciation afforded to the State, a fair balance was not preserved in the present case and the applicant company was required to bear an individual and excessive burden, in violation of Article 1 of Protocol No. 1."
ECtHR, judgement Lombardi Vallauri v Italy (39128/05) 20 October 2009:
"44. Pour apprécier si, en l’espèce, la mesure litigieuse était « nécessaire dans une société démocratique », la Cour devra mettre en balance le droit du requérant à la liberté d’expression, y compris le droit de transmettre des connaissances sans restriction, et l’intérêt qu’a l’Université à dispenser un enseignement suivant des convictions religieuses qui lui sont propres. Ainsi le veut le principe du pluralisme « sans lequel il n’est pas de société démocratique » [...].
45. La Cour rappelle que, dans le domaine de la liberté d’expression, la marge d’appréciation dont jouissent les Etats contractants va de pair avec un contrôle européen qui, en raison de l’importance de cette liberté, maintes fois soulignée par la Cour, doit être strict. Le besoin d’une éventuelle restriction doit donc se trouver établi de manière convaincante [...].
46. Pour rechercher si ce besoin était présent en l’occurrence, il faut déterminer si le requérant a joui de garanties procédurales adéquates, notamment quant à la possibilité de connaître et de contester les raisons de la limite apportée à son droit à la liberté d’expression. Ces garanties concernent non seulement la phase administrative devant le Conseil de faculté, mais aussi celle, ultérieure, du contrôle juridictionnel de la procédure administrative, et en particulier l’efficacité de ce contrôle. A cet égard, il est utile de rappeler que la Cour a déjà conclu à la violation de l’article 10 de la Convention sous son volet procédural lorsque la portée d’une mesure limitant la liberté d’expression était vague ou qu’une telle mesure était motivée par un raisonnement insuffisamment détaillé et que son application n’avait pas fait l’objet d’un contrôle juridictionnel adéquat [...].
47. En ce qui concerne le premier aspect, la Cour relève d’abord que lorsqu’il a décidé d’écarter la candidature du requérant, le Conseil de faculté n’a pas indiqué à l’intéressé, ni même évalué, dans quelle mesure les opinions prétendument hétérodoxes qui lui étaient reprochées se reflétaient dans son activité d’enseignement et comment, de ce fait, elles étaient susceptibles de porter atteinte à l’intérêt de l’Université consistant à dispenser un enseignement inspiré de ses convictions religieuses propres.
48. Ensuite, d’une manière plus générale, la Cour remarque que la teneur même de ces « positions » est restée totalement inconnue. La seule mention à cet égard figure dans la lettre de la Congrégation (dont la partie pertinente est citée dans la lettre envoyée par le président de l’Université au doyen de la faculté de droit), et vise certaines positions de M. Lombardi Vallauri qui « s’opposent nettement à la doctrine catholique » [...].
49. La Cour ne peut manquer de relever le caractère vague et incertain d’une telle indication et de constater que la décision du Conseil de faculté n’est étayée par aucune autre motivation que la simple référence au refus d’agrément du Saint-Siège, refus dont le contenu est resté secret. Ce constat n’est en rien diminué par l’entretien entre le requérant et un interlocuteur de la Congrégation, cet entretien ayant eu lieu de façon informelle, sans qu’aucun compte-rendu officiel ne soit dressé."
4. The CoE handbook "The administration and you"
See CoE-handbook "The administration and you"
- 1st edition 1996/1997, para. 38 ff. (pp. 23 ff.)
- 2nd edition 2018, pp. 31 ff.
1. Principle II of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Access to information
At his request, the person concerned is informed, before an administrative act is taken, by appropriate means, of all available factors relevant to the taking of that act."
On this Principle II Explanatory memorandum (p. 20 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"20. This principle complements Principle I [right to be heard]; it is aimed at enabling the person concerned effectively to exercise his right to be heard by granting him access to the relevant factors on which the administrative act is intended to be based. [...]
24. The scope of the principle has been limited to pending cases. There might, of course, be a need for the person concerned to have access to information also after an administrative act has been taken, for instance for the purpose of having the act reviewed, and the principle does not exclude this "
See also the 'pilot study' preceding this resolution CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), p. 11:
"The importance of this question [access to information] is evident: if the citizen has no access to the various relevant facts which the administration has in its possession, he cannot successfully intervene in the proceedings and defend his rights. At the same time, the subsequent judicial control may become meaningless when the citizen cannot duly and in proper time set out before the judge the grounds of his complaint because he had no knowledge of the file."
See furthermore the analysis of Principle II of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 48 ff.); for the genesis of Resolution (77)31 in general click here
ECtHR, judgement K.A. v Finland (27751/95) 14 January 2003:
"105. Moreover, this Court has found it essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care. A parent may claim an interest in being informed of the nature and extent of the allegations of abuse made by his or her child or by persons outside the family. This is relevant not only to the parent’s ability to put forward those matters militating in favour of his or her capability in providing the child with proper care and protection but also to enable the parent to understand and come to terms with traumatic events affecting the family as a whole. Situations may arise where a parent can claim no absolute right to obtain disclosure of, for example, a child’s statement, if a careful consideration leads to the conclusion that such disclosure could place the child at risk. As a general rule, however, the positive obligation on the Contracting State to protect the interests of the family requires that all case-material be made available to the parents concerned, even in the absence of any request by them (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §§ 78-83, ECHR 2001-V, and P., C. and S. v. the United Kingdom, no. 56547/00, §§ 136-138 [...])"
V. Right to Representation and Assistance
3. The CoE handbook "The administration and you"
1. Principle III of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Assistance and representation
The person concerned may be assisted or represented in the administrative procedure"
On this Principle II Explanatory memorandum (p. 18 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"25. The purpose of this principle is to enable the person concerned to be assisted or represented in the administrative proceedings, it being understood that he is always free to conduct his case himself if he so desires. The principle does not deal with the question of any obligation for the person concerned to accomplish himself certain acts in the procedure or to take part himself in certain phases of the procedure.
26. It is to be noted that the principle does not deal with the nature of the assistance or representation:. ie qualifications or conditions of the assistant or the legal representative.
27. Nor does it deal with free legal aid, ie the provision at public expense, to the person concerned of legal aid or advice in connection with procedures before an administrative authority [...]."
See furthermore the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), pp. 16 ff. and the analysis of Principle III of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 50 ff.); for the genesis of Resolution (77)31 in general click here
2. Art. 14 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 14 – Right of private persons to be heard with regard to individual decisions
If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 16; for the genesis of Recommendation CM/Rec(2007)7 in general click here
3. The CoE handbook "The administration and you"
See CoE-handbook "The administration and you"
- 1st edition 1996/1997, para. 46 (p. 25)
- 2nd edition 2018, pp. 33 f.
"49. The Court's task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court's supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient". In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts."
ECtHR, judgment Church of Scientology Moscow v. Russia (18147/02) 5 April 2007:
"87. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts [...]."
ECtHR, judgement Alekseyev v Russia (4916/07) 21 October 2010:
"85. The Court is therefore unable to accept the Government's claim to a wide margin of appreciation in the present case. It reiterates that any decision restricting the exercise of freedom of assembly must be based on an acceptable assessment of the relevant facts [...]. The only factor taken into account by the Moscow authorities was the public opposition to the event, and the officials' own views on morals.
86. The mayor of Moscow, whose statements were essentially reiterated in the Government's observations, considered it necessary to confine every mention of homosexuality to the private sphere and to force gay men and lesbians out of the public eye, implying that homosexuality was a result of a conscious, and antisocial, choice. However, they were unable to provide justification for such exclusion. There is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or "vulnerable adults". On the contrary, it is only through fair and public debate that society may address such complex issues as the one raised in the present case. Such debate, backed up by academic research, would benefit social cohesion by ensuring that representatives of all views are heard, including the individuals concerned. It would also clarify some common points of confusion, such as whether a person may be educated or enticed into or out of homosexuality, or opt into or out of it voluntarily. This was exactly the kind of debate that the applicant in the present case attempted to launch, and it could not be replaced by the officials spontaneously expressing uninformed views which they considered popular. In the circumstances of the present case the Court cannot but conclude that the authorities' decisions to ban the events in question were not based on an acceptable assessment of the relevant facts.
87. The foregoing considerations are sufficient to enable the Court to conclude that the ban on the events organised by the applicant did not correspond to a pressing social need and was thus not necessary in a democratic society."
VII. Form and Notification of Administrative Decisions
3. The CoE handbook "The administration and you"
1. Article 17 (1) and Article 18 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 17 – Form of administrative decisions
(1) Administrative decisions shall be phrased in a simple, clear and understandable manner.
(2) [...].Article 18 – Publication of administrative decisions
(1) Administrative decisions shall be published in order to allow those concerned by these decisions to have an exact and comprehensive knowledge of them. Publication may be through personal notification or it may be general in nature.
(2) Those concerned by individual decisions shall be personally notified except in exceptional circumstances where only general publication methods are possible. In all cases, appeal procedures including time limits shall be indicated."
See on the discussion of Articles 17 and 18 the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 26 ff. and para. 30 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
2. Principle V of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Indication of remedies
Where an administrative act which is given in written form adversely affects the rights, liberties or interests of the person concerned, it indicates the normal remedies against it, as well as the time-limits for their utilization."
For the duty to indicate remedies as a pan-European general principle of good administration click here; for the genesis of Resolution (77)31 in general click here
3. The CoE Handbook "The administration and you"
CoE (ed.), The administration and you (1st edition 1996/1997), p. 26 f.:
"V – Notification, statement of reasons and indication of remedies
49. The administrative act must be notified to all persons concerned.
49.1. Comment: Notification normally means the personal information of the person or persons concerned. In the case of administrative procedures concerning a large number of persons, the notification of the administrative act taken and of the possible remedies against it [...] may be made, for certain categories of persons concerned, not by personal information but by public notification.
49.2. Comment: In most legal systems, an administrative act which has not been regularly notified is not invalid but, as long as the person concerned has not been regularly notified of it, it can not produce its legal effects for that person.
49.3. Comment: This [...] and the following principles under this section [statement of reasons and indication of remedies] apply mainly to formal decisions taken by the administrative authorities [...] whereas they will often not be applicable to administrative measures of a more factual kind (also covered by the definition of administrative acts)."
CoE (ed.), The administration and you (2nd edition 2018), p. 36 f.:
"Principle 13 – Form and notification of administrative decisions
Administrative decisions shall be phrased in a simple, clear and understandable manner. [...]. Where a decision adversely affects the rights or interests of an individual the decision shall include information about available remedies and appeal procedures, and relevant time limits.
Individuals shall be notified personally of the decision. Only in exceptional circumstances, or if the decision concerns a large number of persons, may general publication methods be used.
[...]
Commentary
The form and notification of an administrative decision is particularly important in the context of formal decisions taken by public authorities. In most legal systems, an administrative decision that has not been properly notified is valid but, for so long as the person concerned has not been personally notified, it cannot have legal effect in relation to him or her."
ECtHR, judgement de Geouffre de la Pradelle v. France (12964/87), 16 December 1992
30. In the Government’s submission, decisions to designate an area as being of outstanding beauty formed a category of administrative acts sui generis; they were directed at a given geographical area rather than at property owners themselves and, like general regulatory decisions, were of public, impersonal effect. For such decisions, the Government continued, publication in the Official Gazette was itself sufficient to cause the time allowed for appealing to begin to run. Furthermore, Article 7 of the decree of 13 June 1969 required notification only if the designation decree imposed any specific restrictions on a given tract of land […]; the decree in issue did not, however, contain any such restrictions. The Government conceded that these rules did limit public access to the courts to some degree, but argued that such a limitation was justified by the need to establish a simple, fair process for private individuals while ensuring lasting protection for the common national heritage. Lastly, the choice of time for notifying the decision to the applicant after it had been published (see paragraph 12 above), although psychologically unfortunate for him, was purely coincidental and had no legal consequences since in this instance notification was a purely optional formality.
31. In the instant case the Court does not have to assess, as such, the French system of classifying administrative acts and the procedure for appealing against them; it must confine its attention as far as possible to the issue raised by the specific case before it […]. It must nevertheless look at the provisions of the decree of 13 June 1969 and the circular of 19 November 1969 in so far as the application of them may have given rise to the uncertainty in Mr de Geouffre de la Pradelle’s mind and accounted for the time he took to apply to the Conseil d’État.
32. The rule in Article 6 of the decree of 13 June 1969 […] that designation decisions shall be published nationally offers undeniable advantages; as the Government pointed out, it is intended to provide for legal stability and to simplify the formalities for implementing such measures, particularly where they cover extensive tracts of land in multiple ownership.
33. Like the applicant, however, the Court cannot but be struck by the extreme complexity of the positive law resulting from the legislation on the conservation of places of interest taken together with the case-law on the classification of administrative acts. In view also of the proceedings that actually took place in respect of the applicant, which were spread over a period of not less than two and a half years (7 October 1980 - 4 July 1983), such complexity was likely to create legal uncertainty as to the exact nature of the decree designating the Montane valley and as to how to calculate the time-limit for bringing an appeal.
The Court notes in the first place the numerous methods of publication provided for in the decree of 13 June 1969 […]: for listing orders, either individual notification or publication, depending, inter alia, on a numerical criterion (Article 2); and for designation decisions, publication in the Official Gazette if they do not contain any special directions that would alter the state or change the use of the site (Article 6), otherwise notification (Article 7).
Furthermore, the scheme in issue covered a limited area and affected eight identifiable property owners in all […]. Mr de Geouffre de la Pradelle and the other seven were, moreover, individually informed that designation proceedings had been set in motion and that a public inquiry was being opened […]. Although optional […], these notifications served the authorities’ interests, as the Government acknowledged: the purpose of the first notification was to "freeze" the state of the site for a year […], while the second notification was intended to force property owners to voice any dissent within twenty days, failing which they would be deemed to have consented […]. The property owners could reasonably infer from them that the outcome of the proceedings, whether favourable or unfavourable, would likewise be communicated to each of them without their having to peruse the Official Gazette for months or years on end.
34. In sum, the applicant was entitled to expect a coherent system that would achieve a fair balance between the authorities’ interests and his own; in particular, he should have had a clear, practical and effective opportunity to challenge an administrative act that was a direct interference with his right of property. In this connection, the Court points out that, before the designation proceedings were set in motion, he had obtained the appropriate authorities’ consent to his scheme for a miniature hydroelectric power-station […].
In addition, the Prefect did not notify him of the impugned decree, an extract of which had been reproduced in the Official Gazette of 12 July 1983, until two months and one day later […]. Mr de Geouffre de la Pradelle applied to the Conseil d’État […], but it dismissed his application as being out of time. Admittedly it had already held that where a decree designating an area as being of outstanding beauty was concerned, the time allowed for appealing started to run from the moment of publication in the Official Gazette even in the event of subsequent notification, but this was, at the time, an isolated judgment, of which only a summary had appeared in the Recueil Lebon (Conseil d’État, Dames Moriondo and Carro judgment of 29 November 1978, pp. 881 and 908).
35. All in all, the system was therefore not sufficiently coherent and clear. Having regard to the circumstances of the case as a whole, the Court finds that the applicant did not have a practical, effective right of access to the Conseil d’État.
There has accordingly been a breach of Article 6 para. 1 (art. 6-1)."
ECtHR, decision Geffre v. France (19732/17) 16 February 2021
"The Court notes that it is established that the ministerial order for the listing of the land was published in two newspapers, one of which was a daily newspaper, that were distributed in the administrative district of La‑Flotte-en-Ré. The order was republished no more than a month later. In addition, it was displayed at La-Flotte-en-Ré town hall, some seventeen kilometres from La Rochelle where, it seems, the applicant has lived throughout. It was also published in the Recueil des actes administratifs du département de la Charente-Maritime (La Rochelle is the principal town in that département).
As the Court has previously stated, the rule permitting general publication of listing orders offers undeniable advantages (see, mutatis mutandis, de Geouffre de la Pradelle, cited above, p. 42, § 32); as the Government have pointed out, it is intended to provide for legal stability and to simplify the formalities for implementing such measures, particularly where they cover extensive tracts of land in multiple ownership.
It should also be borne in mind that the French government have implemented various measures as a result of de Geouffre de la Pradelle. In that judgment, the Court held that there had been a violation of Article 6 of the Convention after the Conseil d'Etat had dismissed an appeal as being out of time when the applicant made a mistake regarding the date when the time allowed for appealing started to run owing to uncertainty as to whether the administrative act was individual or regulatory in nature. The Court found that the complexity of the legal position was likely to create legal uncertainty as to the exact nature of the designation decree and as to how to calculate the time-limits for appealing to the Conseil d'Etat. The French government have now introduced a new practice in order to ensure the systematic general publication of designation orders (publication in the Official Gazette, display at the town hall and in places used for that purpose for a month, publication of the designation decision in two newspapers, at least one of which is a daily newspaper that is distributed in the administrative district concerned) in order to ensure that interested parties may avail themselves fully of the time allowed for lodging appeals with the Conseil d'Etat. In its Resolution DH(2000)43 of 10 April 2000 concerning de Geouffre de la Pradelle, the Committee of Ministers declared that the French government had thereby fulfilled their obligations under former Article 53 of the Convention.
Lastly, having examined the facts of the present case, the Court finds that the machinery of general publication used by the authorities constitutes a coherent system that strikes a fair balance between the interests of the authorities and of the property owners. In particular, it affords the latter a clear, practical and effective opportunity to challenge administrative acts. In the light of all the circumstances of the case, the Court finds that the applicant has not suffered a disproportionate interference with his right of access to a court and that, accordingly, there has been no infringement of the essence of his right to a court, as guaranteed by Article 6 § 1. Consequently, there has been no violation of that provision."
43. The Court has held that the right of access to court under Article 6 § 1 of the Convention entails the entitlement to receive adequate notification of administrative and judicial decisions, which is of particular importance in cases where an appeal may be sought within a specified time‑limit (see, mutatis mutandis, Šild v. Slovenia (dec.), no. 59284/08, § 30, 17 September 2013). [...].
46. The Court notes that notification of both the intention of the Provincial Executive to issue a new permit to the motocross association and of its decision to that effect was given solely by electronic means. It was possible for interested parties within the meaning of Section 1:2(1) of the General Administrative Law Act [...] to lodge an appeal against that decision, provided they had first submitted their views on the draft decision (see paragraph 19 above). Both the submission of views and the lodging of an appeal were subject to a time-limit [...].
47. While it is not for the Court to determine the manner in which notifications of the type at issue are to be published, it follows from the abovementioned principles that where an appeal lies against a decision by an administrative authority which may be to the detriment of directly affected third parties, a system needs to be in place enabling those parties to take cognisance of such a decision in a timely fashion. This requires that the decision, or relevant information about it, be made available in a pre‑determined and publicised manner that is easily accessible to all potentially directly affected third parties. Provided sufficient safeguards are in place to achieve such accessibility, it falls in principle within the State’s margin of appreciation to opt for a system of publication solely by electronic means.
48. Turning to the facts of the present case, the Court finds, firstly, that the Provincial Executive’s use of electronic means for publishing notifications was sufficiently coherent and clear for the purpose of allowing third parties to become aware of decisions that could potentially directly affect them. Thus, at the relevant time, a statutory provision – section 2(1) of the Electronic Notification Ordinance – provided for the possibility of notifying the Provincial Executive’s (draft) decisions solely by electronic means [...]. The notification of the adoption of the Ordinance had been published in the Official Gazette, and the text of the Ordinance had been published in the Gelderland Provincial Bulletin as well as on the provincial website [...]. Moreover, the Electronic Notification Ordinance codified a practice which had been in place since 1 October 2011, and to which the attention of the public had been drawn by means of advertisements in local newspapers at the time [...].
49. It is further noted that the text of the Electronic Notification Ordinance did not explicitly indicate where notifications were to be published online; however, the explanatory notes to the Ordinance stated that notifications could be published on the Gelderland provincial website [...] and, as submitted by the Government [...], notifications of the type at issue had indeed been published on that website until 2016. Although the applicants disputed, both at the domestic level and before this Court, whether the notifications of the draft decision and of the actual decision had been published on the provincial website [...], the Court notes that the Administrative Judicial Division had found it sufficiently established, in the light of the arguments and evidence submitted to it, that the notifications had been published on that website [...]. In this connection the Court reiterates that, in accordance with Article 19 of the Convention, its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact allegedly committed by a national court or to substitute its own assessment for that of the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Accordingly, the Court cannot question the assessment of the domestic courts on this issue unless there is clear evidence of arbitrariness, of which there is no appearance in the instant case [...].
50. The Court accepts the Government’s submission that electronic communication between the administrative authorities and citizens may contribute to the aim of a more accessible and better functioning administration [...]. It must ascertain whether, given the facts of the case, a fair balance was struck between, on the one hand, the interest of the community as a whole in having a more modern and efficient administration and, on the other hand, the interests of the applicants.
51. The Court observes that, under Dutch law, notifications that are addressed to specific individuals may only be published solely by electronic means when the individuals concerned have indicated that they can be adequately reached in that manner [...]. Given that decisions of administrative authorities may, in addition, potentially concern a large number of interested parties who it may not be possible to identify in advance, the Court agrees with the Government that electronic notification of administrative authorities’ decisions by electronic means may enable a large proportion of the general public to become acquainted with those decisions. In that regard, the Court observes that Dutch law specifies that restricting the publication of notifications that are not addressed to specific individuals exclusively by electronic means is only permitted when a statutory basis exists for it (see section 2 (14)(2)[...].
52. The Court considers that it must nevertheless be borne in mind that a practice of notifying the public solely by electronic means of decisions that may potentially affect them and against which they may wish to object or appeal runs the risk of not reaching citizens who do not have access to the Internet or who are computer illiterate. It can, however, not be overlooked that in 2013 the Internet penetration rate in the Netherlands was high, with more than 92 percent of citizens over the age of 12 having access to it [...]. Moreover, the applicants in the present case have not argued that they themselves did not have access to a computer or to the Internet or that they were computer illiterate and that they were, for that or those reasons, unable to find the (draft) decisions online [...]. In those circumstances, the Court is not persuaded by the applicants’ argument to the effect that publishing the notifications of the draft decision and the decision in a free local newspaper would have provided better safeguards of reaching potentially affected parties than publishing on the Gelderland provincial website [...]. In that context it notes once more that notifications of this type have already been published solely by electronic means since 1 October 2011, and that this practice was publicised in local newspapers at the time of its introduction (see paragraph 23 above). The fact that this announcement had apparently escaped the applicants’ attention supports the Government’s contention that publications in local newspapers also do not constitute an infallible method of reaching every potentially affected party [...]. The Court considers that it was not unrealistic to expect the applicants to consult the provincial website regularly for notifications of (draft) decisions that might affect them [...].
53. In the present case, the Court is therefore satisfied that the system of electronic publication used by the Gelderland Provincial Executive constituted a coherent system that struck a fair balance between the interests of the community as a whole and the applicants. The applicants have not put forward any arguments that would allow the Court to conclude that they were not afforded a clear, practical and effective opportunity to comment on the draft decision and to challenge the decision given by the Provincial Executive. In the light of all the circumstances of the case and the safeguards identified, the Court finds that the national authorities did not exceed the margin of appreciation afforded to the State under the Convention (see paragraph 47 above) and that the applicants have not suffered a disproportionate restriction of their right of access to a court.
54. There has accordingly been no violation of Article 6 § 1 of the Convention."VIII. Obligation of the Administration to Give Reasons for its Decisions
4. The CoE handbook "The administration and you"
1. Principle IV of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities
"Statement of Reasons
Where an administrative act is of such nature as adversely to affect his rights, liberties or interests, the person concerned is informed of the reasons on which it is based. This is done either by stating the reasons in the act, or by communicating them, at his request, to the person concerned in writing within a reasonable time."
On this Principle IV Explanatory memorandum (p. 18 f. of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"28. When an administrative act is of such a nature as adversely to affect the rights, liberties or interests of the person concerned, it is essential - particularly in view of a possible appeal - that it should be reasoned. Otherwise, the person concerned is not in an adequate position to decide if it is worthwhile challenging the act.
29. The question of how detailed the reasons should be and of how they should be presented is left to the administration which will determine the extent of reasoning according to the nature of the administrative act, bearing in mind the purpose of the statement of reasons, which is to enable theperson concerned to evaluate the act.
30. One way of communicating the reasons is to state them in the act or in the document by which the act is conveyed to the person concerned. Another way of meeting the needs of the person concerned is to grant him, on request, a statement of the reasons. To that end, the principle provides for the possibility of communicating the reasons lat3r on to the person concerned at his request. Such a communication should be in writing, and it should be done within a reasonable time. What is to be considered a reasonable time will depend interalia on the time-limit for lodging an appeal.
31. The principle is subject to the general provison [...]. Moreover, an indication of the reasons might be unnecessary because they are already known to the person concerned."
See also the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), pp. 19 ff.
"This question is of considerably practical importance. If the citizen does not know the grounds on which the organ has based its decision, he is not in an adequate position to challenge it. Similary it is important for the hierachical superior who examines an appeal by the person concerned or who intervenes ex officio, to know the reasons for the decision. [...].
The statement of reasons in administrative decisions has moreover and "educational virtue": in obliging the administrative body to set out the reasons for its decisions, one obliges it to account for the way in which the case has to be dealt with, to formulate its opinions and to express them."
See furthermore the analysis of Principle VI of Resolution (77)31 by M. Morisot, 'La Résolution N° 77 (31) du Conseil de l’Europe sur la protection de l’individu au regard des actes de l’administration' in Conseil d’État (ed.), Études et documents N° 30 (1978 – 1979) (1979), pp. 43 – 54 (pp. 52 ff.); ; for the genesis of Resolution (77)31 in general click here
2. Article 17 (2) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 17 – Form of administrative decisions
(1) [...].
(2) Appropriate reasons shall be given for any individual decision taken, stating the legal and factual grounds on which the decision was taken, at least in cases where they affect individual rights."
For the discussion of this article see the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 26 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
ECtHR, judgement Frizen v Russia (58254/00) 24 March 2005:
"33. In this connection the Court recalls that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be “lawful”: the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention. It follows that the issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights only becomes relevant once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary [...].
34. The Court considers that the existence of public-interest considerations for the forfeiture of the applicant's vehicle, however relevant or appropriate they might have appeared, did not dispense the domestic authorities from the obligation to cite a legal basis for such decision. It observes that the domestic courts did not refer to any legal provision authorising the forfeiture, either in the criminal proceedings against the applicant's husband or in the civil proceedings which she initiated.
ECtHR, judgment Church of Scientology Moscow v Russia (18147/02) 5 April 2007:
"91. The Court observes that the Moscow Justice Department refused to process at least four applications for re-registration, referring to the applicant's alleged failure to submit a complete set of documents […]. However, it did not specify why it deemed the applications incomplete. Responding to a written inquiry by the applicant's president, the Moscow Justice Department explicitly declined to indicate what information or document was considered missing, claiming that it was not competent to do so […]. The Court notes the inconsistent approach of the Moscow Justice Department on the one hand accepting that it was competent to determine the application incomplete but on the other hand declining its competence to give any indication as to the nature of the allegedly missing elements. Not only did that approach deprive the applicant of an opportunity to remedy the supposed defects of the applications and re-submit them, but also it ran counter to the express requirement of the domestic law that any refusal must be reasoned. By not stating clear reasons for rejecting the applications for re-registration submitted by the applicant, the Moscow Justice Department acted in an arbitrary manner. Consequently, the Court considers that that ground for refusal was not "in accordance with the law".
ECtHR, judgement Mirolubovs v Lithuania (798/05) 15 September 2009:
"87. A cet égard, la Cour relève le caractère extrêmement sommaire de la décision prise par la Direction le 23 août 2002. La Cour a déjà jugé que, dans une situation similaire à la présente, lorsqu’un conflit interne déchire une communauté religieuse, les autorités étatiques doivent adopter une approche particulièrement sensible et délicate [...]. Or, en l’occurrence, la décision litigieuse se limitait à dire qu’elle avait été prise « vu l’avis de la division juridique de la Direction » – sans dévoiler le contenu dudit avis –, et « puisque les documents reçus [étaient] conformes aux actes législatifs de la République de Lettonie ». Aux yeux de la Cour, une telle motivation ne saurait passer pour suffisante. [...]."
ECtHR, judgement Adzhigovich v Russia (23202/05) 8 October 2009:
"32. Since the Presidium held that the object of the offence was the procedure of customs declaration rather than the money as a physical object and also found on the facts that the applicant's money had not been criminally obtained, it remains unclear what legal provision could be applied to the maintenance of the confiscation order in respect of the remaining amount. In fact, as regards that amount, the Presidium's decision did nothing to remedy the lacunae in the legal reasoning of the first-instance, appeal and supervisory-review courts. In this connection the Court emphasises that the existence of public-interest considerations for the contested measure, however relevant or appropriate they might have appeared, did not dispense the domestic authorities from the obligation to cite a specific legal basis for such decision [...].
33. As regards the amount which the Presidium determined should be returned to the applicant, the Court notes that the authorities did not invoke any legal grounds for its continued retention beyond a reference to the fact that it was "missing from the evidence storage room at the Sheremetyevo airport".
34. Having regard to the Russian authorities' consistent failure to indicate a legal provision that could be construed as the basis for the confiscation of the applicant's property and their refusal to return the money which the Presidium determined should be repaid to the applicant, the Court finds the impugned interference with the applicant's property rights cannot be considered “lawful” within the meaning of Article 1 of Protocol No. 1. This finding makes it unnecessary to examine whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights."
4. The CoE handbook "The administration and you"
See CoE-handbook "The administration and you"
- 1st edition 1996/1997, para. 51 (p. 27)
- 2nd edition 2018, pp. 35 f.
IX. Procedural Rights and Obligations in Enforcement Proceedings
1. Article 20 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 20 – Execution of administrative decisions
(1) Public authorities shall be responsible for the execution of administrative decisions falling within their competence.
(2) An appropriate system of administrative or criminal penalties shall, in principle, be established to ensure that private persons comply with the decisions of the public authorities.
(3) Public authorities shall allow private persons a reasonable time to perform the obligations imposed on them, except in urgent cases where they shall duly state the reasons for this.
(4) Enforced execution by public authorities shall be expressly prescribed by law. Private persons subject to the execution of a decision are informed of the procedure and of the reasons for it. Enforced execution measures shall be proportionate.
See on the discussion of Article 20 the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para. 35 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
2. Part I ("Execution of administrative decisions regarding private persons") of Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law
"The Committee of Ministers [...]
Considering that it is necessary to maintain the trust of private persons in the administrative and judicial system and that, for this reason, both decisions by administrative authorities entailing obligations for private persons and judicial decisions in the field of administrative law recognising rights for private persons should be executed;
Considering that the action of the administrative authorities presumes that their decisions are efficiently implemented by private persons;
Considering that the execution of administrative decisions should have regard to the rights and interests of private persons;
[...].
Recommends that the governments of member states ensure the effective execution of administrative and judicial decisions in the field of administrative law by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation."Appendix
I. Execution of administrative decisions regarding private persons
Scope of application: the principles contained in this part apply to any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons, either physically or legally.
Implementation
a. Member states should provide an appropriate legal framework to ensure that private persons comply with administrative decisions that have been brought to their knowledge in accordance with the law, notwithstanding the protection by judicial authorities of their rights and interests.
b. Where it is not provided for by law that the introduction of an appeal against a decision entails automatic suspension, private persons should be able to request an administrative or judicial authority to suspend the implementation of the contested decision in order to ensure the protection of their rights and interests.
c. This possibility should be exercised within reasonable time limits in order to avoid unnecessarily blocking the action of the administrative authorities and to ensure legal certainty.
d. In deciding on the request for suspension, the public interest and the rights and interests of third persons should be taken into account by the administrative authority and, unless it is excluded by law, by the judicial authority.
Enforcement
a. The use of enforcement by administrative authorities should be subject to the following guarantees:
i. enforcement is to be expressly provided for by law;
ii. private persons against whom the decision is to be enforced are to be given the possibility to comply with the administrative decision within reasonable time except in urgent duly justified cases;
iii. the use of and the justification for enforcement are to be brought to the attention of the private persons against whom the decision is to be enforced;
iv. the enforcement measures used including any accompanying monetary sanctions are to respect the principle of proportionality.
b. In urgent cases, the extent of the enforcement procedure should be proportionate to the urgency of the case.
c. Private persons should be able to lodge an appeal before a judicial authority against the enforcement procedure in order to ensure the protection of their rights and interests.
d. If the administrative authority does not use an enforcement procedure, those whose rights and interests are protected by the non‑implemented decision should be able to apply to a judicial authority."
See also the Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2003)98-Add 3 of 13 August 2003); click here for further information on the genesis of Recommendation Rec(2003)16.
X. Judicial Review of Procedural Errors
Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration:
"Article 2 - Principle of Lawfulness.
(1) Public authorities shall act in accordance with the law. They shall not take arbitrary measures, even when exercising their discretion.
(2) They shall comply with domestic law, international law and the general principles of law governing their organisation, functioning and activities.
(3) They shall act in accordance with rules defining their powers and procedures laid down in their governing rules.
(4) [...]."For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 69 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here.
Part B Principles 1.b of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts:
"1. The scope of judicial review
a. [...].
b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power.
c. [...]."Click here for further information on the genesis of Recommendation Rec(2004)20
Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities does not deal with the effects of procedural errors. The reasons are explained in the Explanatory memorandum (p. 15 of the Final Activity Report of the CDCJ on Protection of the individual in relation to the acts of administrative authorities (CM(77)173-add2):
"14. In the course of preparing this resolution, the question arose whether provision should be made for the situation where any of the principles were not observed by the administrative authority.
Having found that the present diversity of the legal systems of the member states impedes the elaboration of common rules in this field, the sub-committee considered that it was for each state to implement the rules applicable in cases of non-observance by administrative authorities of the measures taken in the application of the principles set out in this resolution."
Thus, there is a consensus that procedural errors lead to the illegality of administrative decisions. However, depending on different concepts of the 'intensity' of judicial review, different concepts of discretionary power of the administration and their limits, and different concepts of powers of the judge to quash administrative decisions and to refer the case back to the administration (click here) no pan-European general principles on the effects of procedural errors can be discerned. There are neither pan-European general principles on the (im-)possibility to 'heal' procedural errors nor can pan-European general principles be discerned which exclude or impose that administrative decisions that are unlawful only due to a procedural error must necessarily quashed by courts.
Cf. for a comparative approach:
- G. della Cananea and M. Andenas (eds.), Judicial Review of Administration in Europe (2021);
- H. Wilberg, 'Judicial Review of Administrative Reasoning Processes' in P. Cane, H.C.H. Hofmann, E.C. Ip, and P. L. Lindseth (eds.), The Oxford Handbook of Comparative Administrative Law (2021), pp. 857 - 880