The Pan-European General Principles on Legal Certainty and Protection of Legitimate Expectations in Administrative Matters
(compiled by Ulrich Stelkens)
I. Legal Certainty and Legitimate Expectations Outside the Realm of Administrative Law
IV. Legal Certainty by Holding the Administration to its Word and Clausula rebus sic stantibus
I. Legal Certainty and Legitimate Expectations Outside the Realm of Administrative Law
Questions of legal certainty and protection of legitimate expectations in administrative matters relate primarily to questions of the 'stability' of single case decisions (unilateral individual administrative acts), public contracts as well as to questions of the consequences of continuous and voluntary tolerance (omission of the administration to act) of (illegal) activities which may serve as a basis for expectations (but not necessarily of legitimate expectations) of an individual.
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This excludes the questions related to judicial acts including the issue of stability of final judicial decisions or res iudicata (cf. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18. March 2016, para. 60 and 62. On the pan-European general principles on res judicata click here.
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This excludes furthermore the questions of foreseeability, stability and non-retroactivity of laws (statutes) (cf. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016, para. 63). This also means that the question of stability and non-retroactivity of executive norms are not treated here. In sum, this is more a topic of constitutional law than of administrative law.
II. Legal Certainty and Time Limits for Judicial Review in Administrative Matters (and Indication of Remedies)
1. Stability of single case decisions via time limits for judicial review
2. "Compensation" of time limits for judicial review through indication of remedies
1. Stability of single case decisions via time limits for judicial review
Principle B 2 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts
"Access to judicial review
(a) [...].
(c) National and legal persons should be allowed a reasonably period of time in which to commence judicial review proceedings. (d) [...].
Explanatory memorandum (CM(2004)210-Add) 17 November 2004):
"46. This provision aims to guarantee that parties are allowed a reasonable time for bringing the matter before the courts. If the time-limit is too short, the parties may be unable to lodge an appeal against an administrative act.
47. States are accordingly required to set a reasonable time-limit for challenging the lawfulness or legitimacy of an administrative act before a tribunal, in order to guarantee the applicant effective access to judicial review. National legislation generally specifies the reasonable time. In certain justified circumstances this period may be extended.
48. The Recommendation makes no reference to the concept of taking cognisance of the act, but time naturally begins running from when the natural or legal person is deemed to have cognisance of the acts notification. The Recommendation does not specify any fixed period between the time of formal or implicit notification of the act and the application for judicial review, rather leaving this matter to the states’ discretion."
Click here for further information on the genesis of Recommendation Rec(2004)20
For the reasons of time limits for judicial review:
The Council of Europe and rule of law – an overview (CM(2008)170) 21. November 2008 (Report of the Secretary General of the CoE at the request of the Minister's Deputies Rapporteur Group on Legal Cooperation (GR-J); for the genesis of this report click here.
"Principle of legal certainty
[...].
52. The principle of legal certainty may also justify certain limitations of rights, notably in the form of time-limits for lodging appeals or the use of statutory limitations. However, the ECHR may still be violated in case of particularly strict interpretations or rigid application of time-limits regardless of individual circumstances (Miragall Escolano, 25.1.2000, § 33; Phinikaridou, 20.12.2007, § 51)."
See, furthermore, ECJ, judgement REWE v Landwirtschaftskammer für das Saarland (case C-33/76) 16 December 1976:
"5. The prohibition laid down in Article 13 of the Treaty and that laid down in Article 13 of Regulation n°159/66/EEC have a direct effect and confer on citizens rights which the national courts are required to protect.
Applying the principle of cooperation laid down in Article 5 of the Treaty, it is the national court which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.
Accordingly, in the absence of Community rules on the subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.
Where necessary, Articles 100 to 102 and 235 of the Treaty enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administrative action in Member States if they are likely to distort or harm the functioning of the common market.
In the absence of such measures of harmonization the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.
The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.
This is not the case where reasonable periods of limitation of actions are fixed.
The laying down of such time-limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protection both the tax-payer and the administration concerned."
2. "Compensation" of time limits for judicial review through indication of remedies
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."
Explanatory memorandum, para. 32 ff. (p. 19 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)
See also the the 'pilot study' preceding this resolution: CoE (ed.), Protection of the individual in relation to acts of administrative authorities (1975), pp. 23 ff.; for the genesis of Resolution (77)31 in general click here.
See furthermore the analysis of Principle V 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 (p. 53).
However, the ECtHR does not derive a right to an indication of remedies from the ECHR:
ECtHR, decision Société Guerin Automobiles v. the 15 Member States of the European Union (51717/99):
"La Cour rappelle que les règles relatives aux délais à respecter pour recourir visent à assurer une bonne administration de la justice. Cela étant, la réglementation en question, ou l’application qui en est faite, ne devrait pas empêcher le justiciable d’utiliser une voie de recours disponible. Par ailleurs, il échet, dans chaque cas, d’apprécier, à la lumière des particularités de la procédure dont il s’agit et en fonction du but et de l’objet de l’article 6 § 1, la forme de publicité du « jugement » prévue par le droit interne de l’Etat en cause (arrêt Axen c. Allemagne du 8 décembre 1983, série A n° 72, p. 14, § 31).
Dans la présente affaire, la requérante entend en réalité voir tirer des articles 6 et 13 de la Convention le droit à être informé par des mentions figurant sur tout acte attaquable, tant des délais que de la computation des délais et que des voies et juridictions de recours disponibles.
La Cour relève d’emblée que ces articles ne couvrent pas de telles garanties. Telle que la jurisprudence les a interprétés, ainsi qu’il est rappelé ci-dessus, les Etats contractants disposent d’« une certaine marge d’appréciation » pour réglementer ces matières ; pareille réglementation vise « à assurer une bonne administration de la justice et le respect, en particulier, du principe de sécurité juridique ». Les garanties des articles 6 et 13 visent à empêcher que cette « réglementation ou l’application qui en est faite n’empêche le justiciable de se prévaloir d’une voie de recours disponible » (arrêt Miragall Escolano et autres c. Espagne du 25 janvier 2000, § 33 et s.).
Or tel n’est pas ici le grief de la requérante, laquelle ne stigmatise pas la réglementation existante ou son application mais entend obtenir des garanties supplémentaires à celles existantes dans le cadre de cette réglementation.
Cette observation suffit à faire regarder la requête comme étant, en tout état de cause, irrecevable. Elle dispense la Cour de la nécessité d’examiner la question de sa compatibilité ratione personae avec la Convention, question qui ne manquerait pas, autrement, de se poser puisque la requête est dirigée, non contre l’Union européenne (laquelle n’est pas partie à la Convention), mais contre les 15 Etats contractants, qui sont en même temps membres de l’Union européenne."
III. Protection of Legitimate Expectations of the Beneficiary of Illegal Administrative Decisions and Parties to Illegal Public Contracts
1. CoE Handbook "The administration and you"
2. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
1. CoE Handbook "The administration and you"
In CoE (ed.), The administration and you (1st edition 1996/1997), para. 57 ff. (p. 31 f.), general principles of the revocation of administrative acts are outlined. Interestingly these remarks are neither based on a pertinent Recommendation of the Commitee of ministers of the CoE nor or on case law of the ECtHR (which, at the time did not exist) but seemingly only on the "national reports" in Appendix 2 (pp. 178 – 182).
Conversely, the 2nd edition of the handbook refers to the newer case law of the ECtHR: CoE (ed.), The administration and you (2nd edition 2018), p. 16 ff.
2. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
"B. Legal certainty
[...]
5. Legitimate expectations
Is respect for the principle of legitimate expectations ensured?
61. The principle of legitimate expectations is part of the general principle of legal certainty in European Union law, derived from national laws. It also expresses the idea that public authorities should not only abide by the law but also by their promises and raised expectations. According to the legitimate expectation doctrine, those who act in good faith on the basis of law as it is, should not be frustrated in their legitimate expectations. However, new situations may justify legislative changes going frustrating legitimate expectations in exceptional cases. This doctrine applies not only to legislation but also to individual decisions by public authorities.45 "
Footnote 45: "For example, individuals who have been encouraged to adopt a behaviour by Community measures may legitimately expect not to be subject, upon the expiry of this undertaking, to restrictions which specifically affect them precisely because they availed themselves of the possibilities offered by the Community provisions: ECJ, 120/86, Mulder v. Minister van Landbouw en Visserij, 28 April 1988, § 21ff. In the case-law of the European Court of Human Rights, the doctrine of legitimate expectations essentially applies to the protection of property as guaranteed by Article 1 of the First Additional Protocol to the European Convention on Human Rights: see e.g. ECtHR Anhaeuser-Busch Inc. v. Portugal [GC], 73049/01, 11 January 2007, § 65; Gratzinger and Gratzingerova v. the Czech Republic [GC] (dec.), 39794/98, 10 July 2002, § 68ff; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 21319/93, 21449/93, 21675/93, 21319/93, 21449/93 and 21675/93, 23 October 1997, § 62ff.
3. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 6 - Principle of legal certainty
(1) Public authorities shall act in accordance with the principle of legal certainty.
(2) They may not take any retroactive measures except in legally justified circumstances.
(3) They shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.
(4) It may be necessary in certain cases, in particular where new obligations are imposed, to provide for transitional provisions or to allow a reasonable time for the entry into force of these obligations."
See on the discussion of this article 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 106 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
"Article 21 - Changes to individual administrative decisions
Public authorities can amend or withdraw individual administrative decisions in the public interest if necessary, but, in doing so, they should have regard to the rights and interests of private persons."
See also the discussion of this article 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 19 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
a) Case law with regard to individual unilateral administrative decisions
b) Case law with regard to administrative contracts
a) Case law with regard to individual unilateral administrative decisions
ECtHR judgment Moskal v. Poland (10373/05) 15 September 2009:
"67. The Court observes that in the instant case the Government did not justify the measure in question by the need to make savings in the interests of the social security fund [...]. The State aimed primarily at achieving concordance between the factual situation of beneficiaries and their compliance with the statutory requirements for this type of pension.
68. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right [...]. Before being invalidated the decision of 29 August 2001 had undoubtedly produced effects for the applicant and her family [...].
69. It must also be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The 2001 decision was left in force for ten months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect [...].
70. In the Court’s opinion, the fact that the State did not ask the applicant to return the pension which had been unduly paid [...] did not mitigate sufficiently the consequences for the applicant flowing from the interference in her case.
71. Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 25 June 2002 in judicial review proceedings, her right to the pension was determined by the courts only two years later and during that time she was not in receipt of any welfare benefit [...].
72. As stated above, in the context of property rights, particular importance must be attached to the principle of good governance. It is desirable that public authorities act with the utmost scrupulousness, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other property rights. In the instant case, the Court considers that having discovered their mistake the authorities failed in their duty to act in good time and in an appropriate and consistent manner.
73. The Court, being mindful of the importance of social justice, considers that, as a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest.
Notwithstanding these important considerations, the Court must, nonetheless, observe that the above general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden as a result of a measure divesting him or her of a benefit.
If a mistake has been caused by the authorities themselves, without any fault of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive.
74. In this connection it should be observed that as a result of the impugned measure, the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income. Moreover, the Court is aware of the potential risk that, in view of her age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have considerable difficulty in securing new employment.
75. In addition, the Court notes that, despite the fact that under the applicable law the applicant qualified for another type of pre-retirement benefit from the State as soon as she lost her entitlement to the "EWK" pension, her right to the new benefit was not recognised until the decision of 25 October 2005, which finally brought an end to proceedings which had lasted three years. The amount of the applicant’s pre-retirement benefit is approximately 50 % lower that her "EWK" pension [...]. Even though the decision to grant the benefit was backdated, the benefit due for the period between 25 October 2002 and 31 July 2004 was paid without any interest [...]. The mistake of the authorities left the applicant with 50% of her expected income, and it was only after proceedings lasting three years that she was able to obtain the new benefit.
Lastly, the fact that the applicant retained her full right to receive, as of 2015, an ordinary old-age pension from the pension fund is immaterial since this would have been the case even if she had continued to receive her "EWK" pension.
76. In view of the above considerations, the Court finds that a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive.
It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention."
ECtHR, judgement Beinarovič and Others v Lithuania (70520/10, 21920/10, 41876/11) 12 June 2018:
"138. The Court reiterates that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden [...].
139. The Court has on many occasions emphasised the particular importance of the principle of "good governance". It requires that where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time and in an appropriate and above all consistent manner [...].
140. The good governance principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. However, the need to correct an old "wrong" should not disproportionately interfere with a new right which has been acquired by an individual relying on the legitimacy of the public authority’s action in good faith. In other words, State authorities which fail to put in place or adhere to their own procedures should not be allowed to profit from their wrongdoing or to escape their obligations. The risk of any mistake made by the State authority must be borne by the State itself and the errors must not be remedied at the expense of the individuals concerned. In the context of revoking ownership of a property transferred erroneously, the good governance principle may not only impose on the authorities an obligation to act promptly in correcting their mistake, but may also necessitate the payment of adequate compensation or another type of appropriate reparation to its former bona fide holder (see Lelas v. Croatia, no. 55555/08, § 74, 20 May 2010; Maksymenko and Gerasymenko v. Ukraine, no. 49317/07, § 64, 16 May 2013; and Bogdel v. Lithuania, no. 41248/06, § 66, 26 November 2013)."
ECtHR, judgement Romeva v North Macedonia (32141/10) 12 December 2019:
"66. The Court must next examine whether the interference with the peaceful enjoyment of possessions struck a fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, or whether it imposed a disproportionate and excessive burden on the applicant [...].
67. The Court notes that prior to the internal audit, the Fund’s records showed that the applicant had been employed during the period 1963-1967. It was only after the internal audit in the case of the applicant that irregularities appeared, in so far as the applicant’s employment booklet was found to be missing from the records, necessitating a request to the applicant’s former employer for data to confirm the accuracy of the Fund’s records, which were incomplete. In the absence of any information from that employer that the applicant had indeed been employed between 1963 and 1967, the Fund concluded that the data regarding her employment for the above-mentioned period had been erroneously entered in its records.
68. In this connection, the Court notes that it has already found that there is nothing to suggest that the applicant was responsible for the incorrect assessment by the Fund of her pension request [...]. On the contrary, it was the Fund’s lack of diligence in properly gathering and maintaining the relevant data in respect of the applicant and in processing her initial claim for a pension that led to the erroneous decision, which the Fund later sought to correct at the applicant’s expense [...]. The Government’s argument that the applicant had supplied the Fund with erroneous information regarding her past employment should therefore be dismissed [...].
69. Further to this point, the Court observes that the applicant’s claim that she had worked for various employers through "youth groups" between 1963 and 1967 was not contested by the Government.
70. Being mindful of the importance of social justice, the Court would reiterate in this regard that, as a general principle, public authorities should not be prevented from correcting their mistakes – even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to social security funds – in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest [...].
71. Notwithstanding those important considerations, the Court nonetheless notes that the aforementioned general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden as a result of a measure divesting him or her of a benefit [...]. If a mistake has been caused by the authorities themselves, without any fault on the part of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive.
72. In assessing compliance with Article 1 of Protocol No. 1, the Court must carry out an overall examination of the various interests in issue (see Perdigão, cited above, § 68), bearing in mind that the Convention is intended to safeguard rights that are "practical and effective" [...]. It must look behind appearances and investigate the realities of the situation complained of[...]. That assessment may involve the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, 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 and consistent manner [...].
73. In this regard the Court attaches particular importance to the fact that the revocation of the decision to grant a pension to the applicant was not based upon any new evidence but only upon a reassessment of the same evidence which was at the basis of the administrative decision, which became final as it had not been contested before the courts. In the Court’s view such a reassessment of evidence ex proprio motu ‒ outside the system of extraordinary remedies for quashing final administrative decisions ‒ brings into question legal certainty in the area of social security.
74. In addition, the Court notes that the case at hand does not concern a suspension of the applicant’s pension, but the complete loss of her pension entitlements ([...]. The fact that she obtained a new pension entitlement as of 3 November 2009 on the basis of a subsequent legislative change is of no relevance in respect of the deprivation itself [...].
75. The Court observes that prior to obtaining a pension the applicant had been dependent on the State’s social benefits scheme and had been in receipt of unemployment benefit [...]. Owing to the applicant’s specific circumstances, the retirement pension had constituted her sole source of income for a period of over nine years. For more than two years of that period, being deprived of her pension, she had had no income whatsoever [...].
76. Moreover, the Court surmises that the civil claim against the applicant and the enforcement proceedings aimed at claiming the reimbursement of the pension benefits paid to her [...] are capable of further aggravating her already difficult financial situation [...].
77. Given the circumstances described above, it must be observed that ‑ as a result of the impugned measure ‒ the applicant was faced, practically from one day to the next, with the total loss of her retirement pension, which constituted her sole source of income [...].
78. In view of the above considerations, the Court finds that a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive.
79. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention."
49. The principle of “good governance” requires that where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, it is incumbent on the public authorities to act in good time, in an appropriate manner and with the utmost consistency [...]. The principle of good governance should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. However, the need to correct an old “wrong” should not disproportionately interfere with a new right which has been acquired by an individual relying on the legitimacy of the public authority’s action in good faith [...]. In other words, State authorities which fail to put in place or adhere to their own procedures should not be allowed to profit from their wrongdoing or to escape their obligations [...]. The risk of any mistake made by the State authority must be borne by the State itself and the errors must not be remedied at the expense of the individuals concerned [...].
50. In the context of the revocation of a property right granted erroneously, the principle of good governance may not only impose on the authorities an obligation to act promptly in correcting their mistake [...], but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder of the property [...].
ECtHR, judgement Văleanu and Others v Romania (59012/17 and 29 others) 8 November 2022:
"247. In examining whether a fair balance was struck between the public interest and that of the applicants, the Court reiterates in particular the importance of the principle of "good governance". The "good governance" principle should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. On the other hand, State authorities which fail to put in place or adhere to their own procedures should not be allowed to profit from their wrongdoing or escape their obligations. The risk of any mistake made by the State authority must be borne by the State itself and any errors must not be remedied at the expense of the individuals concerned. In the context of the revocation of a title which has been granted erroneously, the "good governance" principle may not only impose on the authorities an obligation to act promptly in correcting their mistake, but may also necessitate the payment of adequate compensation or another type of appropriate reparation to its former good-faith holder [...]."
b) Case law with regard to administrative contracts
ECtHR, judgement Stretch v. UK (44277/98) 26 June 2003:
"38. By subsequently declaring administrative contracts, which grant proprietary rights within the meaning of Article 1 of Protocol No. 1 to the ECHR to the individual (for example, the ones assigning State’s land to the individual), unlawful and not providing an adequate compensation thereof, the State risks of placing a disproportionate burden at the "ordinary citizens", who were unaware of such errors committed by public authorities."
Similar case law of the ECtHR with regard to administrative contracts:
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ECtHR, judgement Gashi v. Croatia (32457/05) 13 December 2007, para. 38 ff.
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ECtHR, judgment Maksymenko and Gerasymenko v. Ukraine (49317/07) 16 May 2013, para. 60 ff.
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ECtHR, judgement Pyrantiené v. Lithuania (45092/07) 12 November 2013, para. 48 ff.
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ECtHR, judgement Albergas and Arlauskas v. Lithuania (17978/05) 27 May 2014, para. 58 ff.
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ECtHR, judgement Digrytė Klibavičienė v. Lithuania (34911/06) 21 October 2014, para. 33 ff.
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ECtHR, judgement Noreikienė and Noreika v. Lithuania (17285/08) 24 Novembe 2015, para. 33 ff.
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ECtHR, judgement Tunaitis v. Lithuania (42927/08) 24 November 2015, para. 37 ff.
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ECtHR, judgement Žilinskienė v. Lithuania (57675/09) 1 December 2015, para. 45 ff.
IV. Legal Certainty by Holding the Administration to its Word and Clausula rebus sic stantibus
1. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011
1. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011
"(2) Legal certainty
44. [...]
48. Legal certainty also means that undertakings or promises held out by the state to individuals should in general be honoured (the notion of the ‘legitimate expectation’)."
ECtHR, judgement Stran Greek Refineries and Stratis Adreadis v Greece (13427/87) 9 December 1994:
"72. The Court does not doubt that it was necessary for the democratic Greek State to terminate a contract which it considered to be prejudicial to its economic interests. Indeed according to the case-law of international courts and of arbitration tribunals any State has a sovereign power to amend or even terminate a contract concluded with private individuals, provided it pays compensation (Shufeldt arbitration award of 24 July 1930, Reports of International Arbitral Awards, League of Nations, vol. II, p. 1095). This both reflects recognition that the superior interests of the State take precedence over contractual obligations and takes account of the need to preserve a fair balance in a contractual relationship. However, the unilateral termination of a contract does not take effect in relation to certain essential clauses of the contract, such as the arbitration clause. To alter the machinery set up by enacting an authoritative amendment to such a clause would make it possible for one of the parties to evade jurisdiction in a dispute in respect of which specific provision was made for arbitration (Losinger decision of 11 October 1935, Permanent Court of International Justice, Series C no. 78, p. 110, and arbitral awards in Lena Goldfields Company Ltd v. Soviet Government, Annual Digest and Reports of Public International Law Cases, vol. 5 (1929-1930) (case no. 258), and Texaco Overseas Petroleum Company and California Asiatic Oil Company v. Government of the Arab Republic of Libya, preliminary decision of 27 November 1975, International Law Reports, vol. 53, 1979, p. 393).
73. In this connection, the Court notes that the Greek legal system recognises the principle that arbitration clauses are autonomous (see paragraph 18 above) and that the Athens Court of First Instance (see paragraph 16 above), the Athens Court of Appeal (see paragraph 18 above) and, it would appear, the judge-rapporteur of the Court of Cassation (see paragraph 19 above) applied this principle in the present case. Moreover the two courts found that the applicants’ claims originating before the termination of the contract were not invalidated thereby.
The State was therefore under a duty to pay the applicants the sums awarded against it at the conclusion of the arbitration procedure, a procedure for which it had itself opted and the validity of which had been accepted until the day of the hearing in the Court of Cassation.
74. By choosing to intervene at that stage of the proceedings in the Court of Cassation by a law which invoked the termination of the contract in question in order to declare void the arbitration clause and to annul the arbitration award of 27 February 1984, the legislature upset, to the detriment of the applicants, the balance that must be struck between the protection of the right of property and the requirements of public interest.
75. There has accordingly been a violation of Article 1 of Protocol No. 1 (P1-1).
ECtHR, judgement Lelas v Croatia (55555/08) 20 May 2010
"74. The Court considers that an individual acting in good faith is, in principle, entitled to rely on statements made by state or public officials who appear to have the requisite authority to do so, and that internal rules and procedures were complied with, unless it clearly follows from publicly accessible documents (including primary or subordinate legislation), or an individual was otherwise aware, or should have been aware, that a certain official lacked the authority to legally bind the State. It should not be incumbent on an individual to ensure that the state authorities are adhering to their own internal rules and procedures inaccessible to the public and which are primarily designed to ensure accountability and efficiency within a state authority. A State whose authorities failed to observe their own internal rules and procedures should not be allowed to profit from their wrongdoing and escape their obligations. In other words, the risk of any mistake made by state authorities must be borne by the State and the errors must not be remedied at the expense of the individual concerned, especially where no other conflicting private interest is at stake [....].
75. The Court accepts that sometimes the authority of a particular official to legally bind the State may be inferred from the nature of his or her office and requires no explicit rule or provision. In view of that possibility, in their observations on the admissibility and merits of the application of 3 April 2009 the Government, instead of relying, explicitly or by reference, on some domestic legal provision on which the above-mentioned finding of the Šibenik County Court could be based, simply argued that the court's finding had been inferred from the internal organisation of the Ministry of Defence [....]. The Court will accordingly examine whether that finding was foreseeable for the applicant in the circumstances of the case [....].
76. In this connection the Court first reiterates that the principle of lawfulness also presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application. An individual must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail [....]. The principle of lawfulness also requires the Court to verify whether the way in which the domestic law is interpreted and applied by the domestic courts produces consequences that are consistent with the principles of the Convention [....].
77. In this connection the Court notes that the domestic courts established beyond doubt that the applicant had been repeatedly informed by his commanding officer that his claims for daily allowances for demining work were not in dispute and that they would be paid once funds had been allocated in the budget for that purpose [....]. For the Court the question to be answered is not whether it was plausible, as the Šibenik County Court found, that only the head of the Central Finance Department of the Ministry of Defence was authorised to acknowledge the debt. Rather, the question is whether, in the absence of a clear legal provision or a publicly available document that would support that finding, it was equally plausible for the applicant – who, under the rules of the military hierarchy, could have addressed his request only to his immediate superior – to assume that the information repeatedly communicated to him by his commanding officer came from a person or persons within the Ministry who had the authority to acknowledge the debt. In this respect the Court notes that the applicant was aware that his commanding officer had made enquiries of his own superiors and that the information eventually conveyed to him came, through the commander of the 3rd Operational Zone, from the General Staff of the Croatian Armed Forces. In the Court's view, in the absence of a clear legal provision or publicly accessible documents as to who was authorised to acknowledge the debt on behalf of the Ministry of Defence, it was quite natural for the applicant to believe that the General Staff of the Croatian Armed Forces was an authority of sufficient rank whose statements could be binding on the Ministry.
78. Therefore, having regard to the Šibenik County Court's failure to indicate a legal provision that could be construed as the basis for its finding that the debt could have been acknowledged only by the head of the Central Finance Department of the Ministry of Defence, the Court finds the impugned interference was incompatible with the principle of lawfulness and therefore contravened Article 1 of Protocol No. 1 to the Convention [...] because the manner in which that court interpreted and applied the relevant domestic law, in particular section 387 of the Obligations Act, was not foreseeable for the applicant, who could reasonably have expected that his commanding officer's statements to the effect that his claims were not in dispute and that payment was to follow once funds had been allocated, constituted acknowledgement of the debt capable of interrupting the running of the statutory limitation period [...]. Accordingly, the applicant could reasonably have expected that the statutory limitation period had not expired. This finding that the interference was not in accordance with the law 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.
79. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention."
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The Pan-European General Principles on Discretion
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on Discretion
III. Discretion and Administrative Guidelines
IV. Discretion and Judicial Review
I. Scope of the Pan-European General Principles on Discretion
The scope of the pan-European general principles on discretion does not cover the 'rule making discretion' to which each administrative rule maker is entitled when enacting rules of general application. Thus, they do not cover the power to make policy choices when deciding which rules of general application shall be enacted (for the pan-European general principles on administrative rulemaking click here).
"The Committee of Ministers [...]
Considering that administrative authorities are acting in an increasing number of fields, and, in the process, are frequently called upon to exercise discretionary powers ;
Considering it is desirable that common principles be laid down in all member states to promote the protection of the rights, liberties and interests of persons whether physical or legal, against arbitrariness or any other improper use of a discretionary power, without at the same time impeding achievement by the administrative authorities of the purpose for which the power has been conferred;
Recalling the general principles governing the protection of the individual in relation to the acts of administrative authorities as set out in Resolution (77) 31;
Considering that it is desirable that the said resolution be supplemented when applied to acts taken in the exercise of discretionary powers,
Recommends the governments of member states :
a. to be guided in their law and administrative practice by the principles annexed to this recommendation,
b. to inform the Secretary General of the Council of Europe, in due course, of any significant developments relating to the matters referred to in the present recommendation ;
Instructs the Secretary General of the Council of Europe to bring the contents of this recommendation to the notice of the Government of Finland.
Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
I – Scope and definitions
The following principles apply to the protection of the rights, liberties and interests of persons with regard to administrative acts taken in the exercise of discretionary powers.
The term "administrative act" means, in accordance with Resolution (77) 31, 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.
The term "discretionary power" means a power which leaves an administrative authority some degree of latitude as regards the decision to be taken, enabling it to choose from among several legally admissible decisions the one which it finds to be the most appropriate.
In the implementation of these principles the requirements of good and efficient administration, as well as the interests of third parties and major public interests, should be duly taken into account. Where these requirements or interests 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 endeavour should nevertheless be made to observe the spirit of this recommendation.
Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2):
"2. In modern society, administrative action is exerting an ever-increasing influence on the lives of the citizens, who are all, one way or another, affected by decisions of administrative authorities.
In some matters, the outcome of administrative decisions is precisely determined in advance by laws and regulations. In others, the law allows administrative authorities some degree of latitude and sets only the limits to that latitude, that is, the administration is given a discretionary power.
An administrative authority which exercises a discretionary power must not only comply with the applicable laws and regulations but also act in a manner that is fair and just.
Efforts to this end are continuously under way in many member states. In order to provide these efforts with a common European background, the Committee of Ministers of the Council of Europe decided in February 1977 to include the present subject in the work programme of the organ.
[...].
"10. The recommendation applies to administrative acts taken in the exercise of discretionary powers.
The term "administrative act" is given exactly the same meaning as under Resolution (77) 31. The act must be taken in the exercise of public authority ; as in the case of that resolution, judicial procedures, the investigation of criminal offences with a view to their prosecution before a court, legislative procedures (i.e., the enactment of statutes and statutory instruments) are outside the recommendation’s scope of application.
Moreover, matters relating to the internal management and organisation of the administration fall outside the ambit of the recommendation."
II. Prevention of Abuse of Power as an Element of CoE's Understandings of the Rule of Law, Good Administration and Human Rights
3. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011
4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
1. "Basic Principles" of Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities
"Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
[...]
II – Basic principles
An administrative authority, when exercising a discretionary power:
1. does not pursue a purpose other than that for which the power has been conferred;
2. observes objectivity and impartiality, taking into account only the factors relevant to the particular case;
3. observes the principle of equality before the law by avoiding unfair discrimination;
4. maintains a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues;
5. takes its decision within a time which is reasonable having regard to the matter at stake ;
6. [...]"
See for an explanation of these 'Basic Principles' of Recommendation No. R (80)2:
- P. Leuprecht, 'The contribution of the Council of Europe to reinforcing the position of the individual in administrative proceedings' in Secretariat General of the Council of Europe in co-operation with the Spanish ‘Defensor del pueblo’ (eds.), Round Table with European Ombudsmen (H/Omb (85) 5) (1985), pp. 1 - 9 (pp. 7 ff.)
- para. 16 -29 of the Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2)
2. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
"Article 2 - Principle of lawfulness
[...]
(4) [Public authorities] shall exercise their powers only if the established facts and the applicable law entitle them to do so and solely for the purpose for which they have been conferred".
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party of 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
"Article 3 - Principle of Equality
(1) Public authorities shall act in accordance with the principle of equality.
(2) They shall treat private persons who are in the same situation in the same way. They shall not discriminate between private persons on grounds such as sex, ethnic origin, religious belief or other conviction. Any difference in treatment shall be objectively justified."
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party of the Project Group on Administrative Law(CJ-DA-GT (2006) 1), para 75 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
"Article 5 – Principle of proportionality
(1) Public authorities shall act in accordance with the principle of proportionality. (2) They shall impose measures affecting the rights or interests of private persons only where necessary and to the extent required to achieve the aim pursued. (3) When exercising their discretion, they shall maintain a proper balance between any adverse effects which their decision has on the rights or interests of private persons and the purpose they pursue. Any measures taken by them shall not be excessive."
For the discussion of this article see the meeting report on the 3rd meeting (5-7 April 2006) of the Working Party of the Project Group on Administrative Law (CJ-DA-GT (2006) 1), para 94 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
3. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011
"(2) Legal certainty
44. [...].
45. The need for certainty does not mean that discretionary power should not be conferred on a decision-maker where necessary, provided that procedures exist to prevent its abuse. In this
context, a law which confers a discretion to a state authority must indicate the scope of that discretion. It would be contrary to the rule of law for the legal discretion granted to the executive
to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion and the manner of its exercise with sufficient clarity, to give the individual adequate protection against arbitrariness. [...].
(3) Prohibition of arbitrariness
52. Although discretionary power is necessary to perform a range of governmental tasks in modern, complex societies, such power should not be exercised in a way that is arbitrary. Such exercise of power permits substantively unfair, unreasonable, irrational or oppressive decisions which are inconsistent with the notion of rule of law.
4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
"C. Prevention of abuse (misuse) of powers50
Are there legal safeguards against arbitrariness and abuse of power (détournement de pouvoir) by public authorities?
i. If yes, what is the legal source of this guarantee (Constitution, statutory law, case-law)?
ii. Are there clear legal restrictions to discretionary power, in particular when exercised by the executive in administrative action?51
iii. Are there mechanisms to prevent, correct and sanction abuse of discretionary powers (détournement de pouvoir)? When discretionary power is given to officials, is there judicial review of the exercise of such power?
iv. Are public authorities required to provide adequate reasons for their decisions, in particular when they affect the rights of individuals? Is the failure to state reasons a valid ground for challenging such decisions in courts?64. An exercise of power that leads to substantively unfair, unreasonable, irrational or oppressive decisions violates the Rule of Law.
65. It is contrary to the Rule of Law for executive discretion to be unfettered power.Consequently, the law must indicate the scope of any such discretion, to protect against arbitrariness.
66. Abuse of discretionary power should be controlled by judicial or other independent review. Available remedies should be clear and easily accessible.
67. Access to an ombudsperson or another form of non-contentious jurisdiction may also be appropriate.
68. The obligation to give reasons should also apply to administrative decisions.52"
Footnote 50: Protection against arbitrariness was mentioned by the European Court of Human Rights in a number of cases. In addition to those quoted in the next note, see e.g. Husayn (Abu Zubaydah) v. Poland, 7511/13, 24 July 2014, § 521ff; Hassan v. the United Kingdom, 29750/09, 16 September 2014, § 106; Georgia v. Russia (I), 13255/07, 3 July 2014, 182ff (Article 5 ECHR); Ivinović v. Croatia, 13006/13, 18 September 2014, § 40 (Article 8 ECHR). For the Court of Justice of the European Union, see e.g. ECJ, 46/87 and 227/88, Hoechst v. Commission, 21 September 1989, § 19; T-402/13, Orange v. European Commission, 25 November 2014, § 89. On the limits of discretionary powers, see Appendix to Recommendation of the Committee of Ministers on good administration, CM/Rec(2007)7, Article 2.4 (“Principle of lawfulness”): “[Public authorities] shall exercise their powers only if the established facts and the applicable law entitle them to do so and solely for the purpose for which they have been conferred”.
Footnote 51: "CM(2008)170, The Council of Europe and the Rule of Law, § 46; ECtHR Malone, 8691/79, 2 August 1984, § 68; Segerstedt-Wiberg and Others v. Sweden, 62332/00, 6 June 2006, § 76 (Article 8). The complexity of modern society means that discretionary power must be granted to public officials. The principle by which public authorities must strive to be objective (“sachlich”) in a number of States such as Sweden and Finland goes further than simply forbidding discriminatory treatment and is seen as an important factor buttressing confidence in public administration and social capital."
Footnote 52: "See e.g. Article 41.1.c of the Charter of Fundamental Rights of the European Union. Cf. also item II.E.2.c.vi and note 126."
ECtHR, judgement Lashmankin and Others v. Russia (57818/08 and 14 others) 7 February 2017
"410. The Court reiterates that the expressions "prescribed by law" and "in accordance with the law" in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be accessible to those concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Hasan and Chaush, cited above, § 84, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I, with further references). Also, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to interfere with the rights guaranteed by the Convention (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007; Gülmez v. Turkey, no. 16330/02, § 49, 20 May 2008; Vlasov v. Russia, no. 78146/01, § 125, 12 June 2008; and, mutatis mutandis, Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009).
411. For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush, loc. cit., and Maestri, loc. cit., with further references)."
ECtHR (GC), judgment Navalnyy v. Russia (29580/12) 15 November 2008
"148. As regards the latter five episodes, it should be added that they disclose a persistent failure by the national authorities to show tolerance towards unauthorised but peaceful gatherings and, more generally, to apply standards which are in conformity with the principles embodied in Article 11 of the Convention. It was not apparent from the relevant provisions in Articles 19 § 3 and 20 § 2 of the Code of Administrative Offences or from the decisions applying them that due consideration ought to be and had in fact been given to interests such as the need for prevention of disorder or crime and for protection of the rights and freedoms of others. Nor did it appear that the competent authorities had struck a fair balance between those interests, on the one hand, and those of the applicant in exercising his right to freedom of peaceful assembly, on the other.
149. Such failures have already been identified in a number of previous cases where the police stopped and arrested protestors for the sole reason that their demonstration had not been authorised, and in which the formal unlawfulness had been put forward as the only justification [...]. The Court has already, well before the period during which the episodes complained of occurred, issued judgments in which it found that the respondent State had violated Article 11 and in which it specifically addressed the requirements which, according to its case-law, must be met in respect of measures interfering with the right of peaceful assembly [...]. Thus, the authorities of the respondent State have been in a position to know and to take into account the relevant Convention standards. Nevertheless, it appears that the domestic practices have continued to violate Convention standards and even that legislative changes have been introduced, entailing further restrictions.
150. The Court considers that there is a link between these failures and the previously observed structural inadequacy in the regulatory framework, which provides for excessively restrictive formal requirements for organising certain public gatherings, as identified in Lashmankin and Others (§§ 471-77). Thus, the broad interpretation of what constitutes a gathering subject to notification and the lack of tolerance towards gatherings which do not comply with the procedure highlights yet another dimension to the aforementioned structural problem. The absence of safeguards circumscribing the authorities’ discretion in interfering with peaceful public gatherings which are not causing “disorder” or nuisance is aggravated by a broad interpretation in practice of what constitutes a “gathering subject to notification” and by excessively wide discretion in imposing restrictions on such gatherings through rigid enforcement involving, as it did, immediate arrest and deprivation of liberty as well as sanctions of a criminal nature as described above (see paragraphs 79‑80 above). It may even be questioned whether, owing to these characteristics of the applicable legal framework, any pursuit of national remedies would also be ineffective and devoid of any prospects of success."
ECtHR, judgment Ivanova and Cherkezov v. Bulgaria (46588/15) 21 April 2016
"53. Under the Court’s well-established case-law […] the assessment of the necessity of the interference in cases concerning the loss of one’s home for the promotion of a public interest involves not only issues of substance but also a question of procedure: whether the decision-making process was such as to afford due respect to the interests protected under Article 8 of the Convention […]. Since the loss of one’s home is a most extreme form of interference with the right to respect for the home, any person risking this – whether or not belonging to a vulnerable group – should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under that Article. The factors likely to be of prominence in this regard, when it comes to illegal construction, are whether or not the home was established unlawfully, whether or not the persons concerned did so knowingly, what is the nature and degree of the illegality at issue, what is the precise nature of the interest sought to be protected by the demolition, and whether suitable alternative accommodation is available to the persons affected by the demolition […]. Another factor could be whether there are less severe ways of dealing with the case; the list is not exhaustive. Therefore, if the person concerned contests the proportionality of the interference on the basis of such arguments, the courts must examine them carefully and give adequate reasons in relation to them […]; the interference cannot normally be regarded as justified simply because the case falls under a rule formulated in general and absolute terms. The mere possibility of obtaining judicial review of the administrative decision causing the loss of the home is thus not enough; the person concerned must be able to challenge that decision on the ground that it is disproportionate in view of his or her personal circumstances. Naturally, if in such proceedings the national courts have regard to all relevant factors and weigh the competing interests in line with the above principles – in other words, where there is no reason to doubt the procedure followed in a given case – the margin of appreciation allowed to those courts will be a wide one, in recognition of the fact that they are better placed than an international court to evaluate local needs and conditions, and the Court will be reluctant to gainsay their assessment […]).
54. The Court cannot agree with the position, expressed by some Bulgarian administrative courts, that the balance between the rights of those who stand to lose their homes and the public interest to ensure the effective implementation of the building regulations can as a rule properly be struck by way of an absolute rule permitting of no exceptions […]. Such an approach could be sustained under Article 1 of Protocol No. 1, which gives the national authorities considerable latitude in dealing with illegal construction […]."
III. Discretion and Administratve Guidelines
"Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
[...]
II – Basic principles
An administrative authority, when exercising a discretionary power :
1. [...];
6. applies any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case.
III – Procedure
In addition to the principles of fair administrative procedure governing administrative acts in general as set out in Resolution (77) 31, the following principles apply specifically to the taking of administrative acts in the exercise of a discretionary power.
7. Any general administrative guidelines which govern the exercise of a discretionary power are :
a. made public ; or
b. communicated in an appropriate manner and to the extent that is necessary to the person concerned, at his request, be it before or after the taking of the act concerning him.
8. Where an administrative authority, in exercising a discretionary power, departs from a general administrative guideline in such a manner as to affect adversely the rights, liberties or interests of a person concerned, the latter is informed of the reasons for this decision. 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."
Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2):
"Principle 6 – Application of guidelines
30. This principle highlights the importance of consistency in administrative practice. It lies within the scope of the general principle of equality and is intended to promote predictability and certainty, but it underlines also the need for an individual examination of the particular circumstances of each case.
31. The term "general administrative guidelines" includes the instructions which an administrative authority addresses to officials of the administration, concerned for the purpose of shaping the administration’s course of conduct and ensuring consistency in administrative action by indicating the practice to be followed in cases affecting members of
the public which are of a comparable nature. It includes circulars, office memoranda and other administrative measures of an internal nature.
32. As a general rule, the administrative authority which is making the decision applies any general administrative guidelines in a consistent way where they are mandatory within the administration.
In many countries, general administrative guidelines do not have the force of law and usually the non-observance of such guidelines is not itself alone a ground for rendering the relevant measure void.
In some other countries, by contrast, citizens may invoke a general administrative guideline to challenge a decision taken in their regard.
33. It is for each national system to determine the consequences of the non-observance of general administrative guidelines.
[...]
Principle 7 – Publicity of guidelines
36. This principle complements Principle 6.
It is not sufficient that general administrative guidelines be observed by the authority concerned (see Principle 6). It is very desirable that a person concerned should have access to the guidelines so that he can act in full knowledge of the pertinent criteria.
37. The application of Principle II of Resolution (77) 31, which enables a person concerned to have access to information, already meets this need partially in as much as general administrative guidelines are relevant factors within the meaning of the said resolution.
Nevertheless, the present principle usefully supplements Principle II of Resolution (77) 31 : on the one hand, it has a preventive effect, particularly by enabling the individual to assess to some extent, in advance, the likelihood of his application succeeding, by knowing the criteria applied in similar cases ; on the other hand, it provides explicitly for guidelines to be communicated at the individual’s request, be it before an act is taken or after. This might be of interest to the person concerned in so far as the information may enable him to ascertain whether the principle of equality has been observed in the decision affecting him.
38. The formula adopted enables administrative authorities in member states to apply this principle either by making any general administrative guidelines public or by communicating them to the person concerned at his request to the extent that is necessary. The latter formula may be appropriate when a guideline, although consistently applied by an authority, has not been laid down in writing.
39. Further, it has been decided in the case where guidelines are communicated at the request of the person concerned, not to specify the means whereby it is to be done. The expression used has been adopted so that an administrative authority is left free to communicate only those parts of the guideline which concern directly the specific case or, without communicating the text of the guideline itself, to indicate to a person concerned the criteria set out therein as to govern similar cases.
Principle 8 – Departure from a guideline
40. The purpose of the principle is to enable a person concerned to be informed of the reasons for any departure by an administrative authority from a general administrative guideline in such a manner as affects adversely his rights, liberties or interests. From this he may detect whether one of the other principles referred to in the recommendation (e.g., the principle of equality) has been infringed.
The departure from the guideline should be explained as a part of the statement of reasons to be given under Principle IV of Resolution (77) 31. The application of this principle also implies the possibility for an individual to learn from the statement of reasons why such a departure has been made in a given case, whether this was made necessary by the circumstances of the case and is justified objectively or whether it constitutes an arbitrary departure.
41. The application of this principle is closely connected with that of Principles 6 and 7."
IV. Discretion and Judicial Review
1. Recommendation No. R (80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities
"Appendix to the recommendation
Principles applicable to the exercise of discretionary powers by administrative authorities
[...]
IV – Control
9. An act taken in the exercise of a discretionary power is subject to control of legality by a court or other independent body. This control does not exclude the possibility of a preliminary control by an administrative authority empowered to decide both on legality and on the merits.
10. Where no time-limit for the taking of a decision in the exercise of a discretionary power has been set by law and the administrative authority does not take its decision within a reasonable time, its failure to do so may be submitted to control by an authority competent for the purpose.
11. A court or other independent body which controls the exercise of a discretionary power has such powers of obtaining information as are necessary for the exercise of its function."
Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Exercise of discretionary powers by administrative authorities (CM(77)173-add2):
"42. Owing to the diversity of the control systems in member states the committee of experts confined itself to drafting very general principles in this field. It considered that it was for each state to select the measures to be taken for the application of these principles, according to its own legal system.
Principle 9 – Nature of control
43. The purpose of this principle is to ensure that the legality of any administrative act taken in the exercise of a discretionary power is subject to control by a court or other independent body.
44. The principle does not exclude the possibility that the courts and other independent bodies (for example, ombudsmen), which control the legality of a discretionary administrative act, also control the merits of such acts.
Also the terms of paragraph 2, which provide expressly for control of both legality and merits by the competent administrative authority, are not to be construed as precluding this twofold control by a court or another independent body.
45. On account of the diversity in the European legal systems between the definition of legality and that of the merits, it was agreed that it was for each member state to determine the content, in the present context, of the two concepts of “legality” and “merits”, the limits of which are not always precise and clear. It is also relevant to the question of whether any of the principles in this recommendation is to be looked upon as raising a question of legality or of merits.
Principle 10 – Abstention on the part of an administrative authority
46. This principle is closely connected with Principle 5. Its application aims at enabling a person concerned who has been placed in a position of having to wait for a period exceeding a reasonable time, to submit the abstention on the part of an administrative authority to control by an authority competent for the purpose.
47. The preconditions for control, the nature and type of that control as well as the control bodies competent to exercise that control, are matters to be determined according to the legal systems of individual member states.
Principle 11 – Powers of the control body to obtain information
48. The purpose of this principle is to guarantee that the court or independent body which controls the exercise of a discretionary power by an administrative authority has the means necessary to achieve this objective.
It implies in particular that the court or other independent body should have access to the information on the basis of which the decision was taken and that administrative bodies should communicate such information.
The principle does not, however, exclude those systems where only the parties to a case and notably the administrative authority are allowed to produce the relevant elements, provided always that the control body may order certain elements to be produced.
49. Under this recommendation the powers of independent control bodies to obtain information from administrative authorities are meant to be such as are necessary for the exercise of their functions ; depending upon the legal system, the information referred to may take the form of, for example, official reports on the facts and considerations taken into account by the administrative authority when taking the decision.
50. The extent of such powers is left to be determined by each member state according to its legal system."
[...].
2. Part B Principle 1 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. All administrative acts should be subject to judicial review [...].
b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power.
c. Unless national law provides for exceptions in important cases, the administrative authority should make available to the tribunal the documents and information relevant to the case."
Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):
"Principle 1.a
[...]
30. With regard to administrative acts involving exercise of a discretionary power, although such a power is, in principle, exempt from judicial review, the tribunal may seek to determine whether the administration has overstepped permitted limits in the use of its discretionary power or whether it has committed manifest errors.
[...].
Principle 1.b
32. This principle contains, firstly, a general assertion that the courts should be able to review any violation of the law and, secondly, examples of grounds for invalidating an act.
33. The arguments on which the applicants can base their complaints embrace violation of the law, including lack of competence, procedural flaws and abuse of authority. Violation of the law may take the form of a lack of legal basis, a direct violation of a legal standard or a legal error, in which latter case the administration has misjudged the scope of a rule. Lack of competence may stem from spatiotemporal considerations or the subject of the decision. Procedural flaws include such irregularities as a failure to conduct compulsory consultation. Lastly, abuse of power refers mainly to cases where an authority uses a power vested in it by law, but for another purpose than that provided for by law. The Recommendation draws a distinction at this point between formal violations and those arising out of lack of competence, on the one hand, and those involving misapplication, misinterpretation or ignorance of the law, on the other.
[...]
Principle 4.e
[...]
73. In annulment proceedings the tribunal should verify the existence of the facts. Where the administrative act involved the exercise of a discretionary power, it ascertains that the limits on the exercise of that power have not been overstepped. It also verifies application of the law to the facts.
[...]
5. The Effectiveness of Judicial Review
[...]
Principle 5.a
87. The Recommendation seeks to guarantee that a tribunal may take the necessary measures to restore a lawful situation. It covers provisional measures, procedural and substantive decisions, i.e. the power to prevent potentially prejudicial material actions; the power to order the adoption of a material action which should have been but was not adopted, particularly in connection with enforcing administrative decisions already taken; the power to order the adoption of administrative acts and decisions, in the case of limited discretion; and the possibility of preventing the adoption of decisions in cases of limited discretion, where the Administration has acted ultra vires.
88. The Recommendation does not exclude the possibility of the tribunal replacing the administrative act where such a measure would be compatible with national legislation. The case-law of the European Court does not require the administrative tribunal to substitute an act held to be unlawful. Nevertheless, the tribunal must be in a position to impose its judgment on the administrative authority when the latter issues a fresh decision, on referral after the original judgment has been set aside. This rule does not apply to cases where after annulment of an act the administration is not required to take a new decision (for instance, in appointment matters, if an appointment decision is annulled, the administration has discretionary power to decide whether to resume the appointment procedure)."Click here for information on the genesis of Recommendation Rec(2004)20
3. Case Law of the ECtHR on the requirements of Article 6 (1) ECHR on the "intensity" of judicial review in those administrative matters wich are considered to be disputes on the "determination of […] civil rights and obligations" within the meaning of Article 6 (1) ECHR
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 (civil limb) (version of August 2022), para. 187 ff.
Within the scope of application of Article 6 (1) ECHR this case law (concerning the 'civil limb' of the right to fair trial) defines minimum requirements on the intensity of judicial review of administrative discretionary decision. This case law does not only concern the relationship between the judiciary and administration but also reflects a certain understanding of the division of tasks between legislation and administration.
See, e. g., ECtHR judgment Sigma Radio Television Ltd v. Cyprus (32181/04) 21 July 2011:
"151. The Court reiterates that even where an adjudicatory body, including an administrative one as in the present case, which determines disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has “full” jurisdiction and does provide the guarantees of Article 6 § 1 […].
152. Both the Commission and the Court have acknowledged in their case-law that the requirement that a court or tribunal should have “full jurisdiction” will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it […].
153. In adopting this approach the Convention organs have had regard to the fact that it is often the case in relation to administrative law appeals in the Member States of the Council of Europe, that the scope of judicial review over the facts of a case is limited and that it is the nature of review proceedings that the reviewing authority reviews the previous proceedings, rather than taking factual decisions. It can be derived from the relevant case-law that it is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by the administrative authorities on grounds of “expediency” and which often involve specialised areas of law (for example, planning […]; environmental protection […]; regulation of gaming […]).
154. In assessing the sufficiency of a judicial review available to an applicant, the Court will have regard to the powers of the judicial body in question […], and to such factors as (a) the subject-matter of the decision appealed against, in particular, whether or not it concerned a specialised issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and if, so, to what extent; (b) the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the adjudicatory body; and (c) the content of the dispute, including the desired and actual grounds of appeal […].
155. Whether the review carried out is sufficient for the purposes of Article 6 will very much depend on the circumstances of a given case: the Court will confine itself as far as possible to examining the question raised in the case before it and to determining if, in that particular case, the scope of the review was adequate.
156. The Court has held in a number of cases, where the court in question did not have full jurisdiction as such but examined the issues raised before it concerning the adjudicatory body’s decision, that the judicial review in the case was sufficient and that the proceedings complied with Article 6 § 1 of the Convention. This has been the case, for example, where upon judicial review the applicants’ submissions on their merits or grounds of appeal were examined point by point, without the court having to decline jurisdiction in replying to them or in ascertaining various facts […]. Similarly […] the Court held that there had been no violation of Article 6 § 1 as the High Court had examined the central issue in the case before it
159. At the outset, it is common ground that the power of review of the Supreme Court […] was not capable of embracing all aspects of the CRTA’s decisions. In particular, as is usually the case in the systems of judicial control of administrative decisions found throughout the Council of Europe’s Member States […], the Supreme Court could not substitute its own decision for that of the CRTA and its jurisdiction over the facts was limited. Notwithstanding, it could have annulled the decisions on a number of grounds, including if the decision had been reached on the basis of a misconception of fact or law, there had been no proper enquiry or a lack of due reasoning, or on procedural grounds.
157. Where, however, the reviewing court is precluded from determining the central issue in dispute, the scope of review will not be considered sufficient for the purposes of Article 6 […]. The Court has therefore found violations of Article 6 § 1 in cases where the domestic courts considered themselves bound by the prior findings of administrative bodies which were decisive for the outcome of the cases before them, without examining the issues independently […]. In addition the Court has found a violation of Article 6 where a ground of challenge has been upheld by the reviewing court but it was not possible to remit the case for a fresh decision by the same or a different body […].
159. At the outset, it is common ground that the power of review of the Supreme Court […] was not capable of embracing all aspects of the CRTA’s decisions. In particular, as is usually the case in the systems of judicial control of administrative decisions found throughout the Council of Europe’s Member States […], the Supreme Court could not substitute its own decision for that of the CRTA and its jurisdiction over the facts was limited. Notwithstanding, it could have annulled the decisions on a number of grounds, including if the decision had been reached on the basis of a misconception of fact or law, there had been no proper enquiry or a lack of due reasoning, or on procedural grounds.
160. Such an approach by an appeal tribunal conducting the review of a decision of an administrative body can reasonably be expected, having regard to the nature of review proceedings and the respect which must be given to decisions taken by administrative authorities on grounds of “expediency” […].
161. As to the subject-matter of the decision appealed against […] a classic exercise of administrative discretion in the specialised area of law concerning broadcasting taken in the context of ensuring standard setting and compliance with the relevant legislation and regulations pursuant to public interest aims […].
162. In connection with the manner in which the decisions were arrived at, the Court observes, as it noted above […], that a number of uncontested procedural guarantees were available to the applicant in the proceedings before the CRTA: the applicant was given details of the probable violation or the complaint made against it and the decisions were arrived at after a hearing had been held. The applicant was able to make written submissions and/or oral submissions during the hearing of the cases […]. Further, it was open to the applicant to make a wide range of complaints in the context of the judicial review proceedings before the CRTA. It is noted in this respect that the applicant’s allegations as to shortcomings in the proceedings before the CRTA, including those concerning objective partiality and the breach of the principles of natural justice, were subject to review by the Supreme Court.
163. Lastly, with regard to the content of the dispute, the Court observes that in its recourses to the Supreme Court the applicant raised a number of points concerning the legality of the CRTA decisions […].
165. As is evident from the extensive reasoning in its judgment the Supreme Court examined all the above issues, point by point, without refusing to deal with any of them. […].
166. It is also clear from the above that the applicant’s cases did not centre on a fundamental question of fact which the Supreme Court did not have jurisdiction to revisit. […]."
It is significant that this case law on the requirements of the 'civil limb' Article 6 (1) ECHR on the "intensity" of judicial review in those administrative matters is "recalled" in the preamble to the above-mentioned Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts. Hence, in the view of the Committee of Ministers of the CoE the principles relating to the scope of judicial review on the exercising of administrative discretionary power established in this case law are not only applicable within the limited scope of Article 6 ECHR. They are considered as an expression of general requirements of the rule of law and effective judicial protection in administrative matters.
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The Pan-European General Principles on Legality of Administration
(compiled by Ulrich Stelkens)
I. Recommendation CM/Rec(2007)7 on good administration
II. Legality of Administration as an Element of CoE's Understandings of the Rule of Law
III. CoE Handbook "The administration and you"
I. 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) [...]."
See on the discussion of this article 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.
II. Legality of Administration as an Element of CoE's Understanding of the Rule of Law
"B. The principle of legality: principles of lawfulness, legal certainty and equality before the law
43. The principle of legality (sometimes referred to as supremacy of the law) forms a traditional core part of the rule of law concept. The rule of law requires that the state acts on the basis of, and in accordance with, the law. This offers essential legal protection of the individual vis-à-vis the state and its organs and agents. Many ECHR provisions reflect this principle through references to the notion of "law", in most cases in the form of a requirement that interference with human rights must be lawful. [Footnote 13: Articles 2,5,6,7,8,9,10,11, 1 of Protocol No.1, 2 of Protocol No. 4, Protocol No. 7]]
· Principle of lawfulness
44. The notion of law systematically used by the Court is a material or substantive one. [Footnote 14: With the exception of the right to a tribunal "established by law" (Article 6 § 1) dealt with under A above]. It covers not only statute law but also unwritten law (case-law) and regulations. The Court assesses whether domestic law as a whole has been complied with in the context of interferences with ECHR rights. In the context of deprivation of liberty (Article 5), the Court stresses the importance of the lawfulness of the detention, both procedurally and substantively, requiring scrupulous adherence to the rule of law (Winterwerp, 24.10.1979, § 39). Non-compliance with domestic law leads to a violation of Article 5 (Bozano, 18.12.1986, § 58; Wassink, 27.9.1990, § 27). In some cases, even where the law may have been formally respected, the Court has found a breach of the requirements of lawfulness on the ground that the authorities have attempted to circumvent the applicable legislation (Karagöz, 8.11.2005, § 59; John, 10.5.2007, § 33).
45. The state is not only obliged to respect and apply, in a foreseeable and consistent manner, the laws it has enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation (Broniowski, 22.6.2004, § 184).
46. The notion of "law" in the ECHR does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law. In particular, the law must be sufficiently accessible and foreseeable (Sunday Times (No. 1), 26.4.1979, § 49). These requirements have been developed in a rich case-law. Foreseeability means that the law must be foreseeable as to its effects, that is formulated with sufficient precision to enable the individual to regulate his conduct. In this context, a law which confers a discretion to a state authority must indicate the scope of that discretion. It would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion and the manner of its exercise with sufficient clarity, to give the individual adequate protection against arbitrariness. (Malone, 2.8.1984, § 68)."For the genesis of this report click here.
2. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2009
"(1) Legality (supremacy of the law)
42. The importance of the principle of legality was underlined by Dicey. It first implies that the law must be followed. This requirement applies not only to individuals, but also to authorities, public and private. In so far as legality addresses the actions of public officials, it requires also that they require authorisation to act and that they act within the powers that have been conferred upon them.35
Legality also implies that no person can be punished except for the breach of a previously enacted or determined law and that the law cannot be violated with impunity. Law should, within the bounds of possibility, be enforced.
43. The term "law", as used in this chapter, refers primarily to national legislation and common law. However, the development of international law as well as the importance given by international organisations to the respect of the rule of law lead to addressing the issue at international level as well: the principle pacta sunt servanda is the way in which international law expresses the principle of legality.36"Footnote 35: "Jeffrey Jowell, The Rule of Law and its underlying Values, in: Jeffrey Jowell/Dawn Oliver (Eds.), The Changing Constitution [7th edition, Oxford University Press 2011], p. 10"
Footnote 36: "See Bingham [The Rule of Law (2010)], who believes that "The rule of law requires compliance by the state with its obligations in international as well as national law" (chap.10).""(2) Legal certainty
44. The principle of legal certainty is essential to the confidence in the judicial system and the rule of law.37 It is also essential to productive business arrangements so as to generate development and economic progress.38 To achieve this confidence, the state must make the text of the law easily accessible. It has also a duty to respect and apply, in a foreseeable and consistent manner, the laws it has enacted. Foreseeability means that the law must where possible be proclaimed in advance of implementation and be foreseeable as to its effects: it has to be formulated with sufficient precision to enable the individual to regulate his or her conduct."Footnote 37: "The Council of Europe and the Rule of Law - An overview, CM(2008)170 21 November 2008, see para. 51"
Footnote 36: "See R. McCorquodale, in The Rule of Law in International and Comparative Context [British Inst of International and Comparative Law (2010)], chap. 3)"
3. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
"A. Legality16
1. Supremacy of the Law
Is supremacy of the law recognised?
i. [...].
ii. [...].
iii. [...].
iv. Does the action of the executive branch conform with the Constitution and other laws?17
v. Are regulations adopted without delay when required by legislation?
vi. Is effective judicial review of the conformity of the acts and decisions of the executive branch of government with the law available?
vii. Does such judicial review also apply to the acts and decisions of independent agencies and private actors performing public tasks?
viii. Is effective legal protection of individual human rights vis-à-vis infringements by private actors guaranteed?44. State action must be in accordance with and authorised by the law. Whereas the necessity for judicial review of the acts and decisions of the executive and other bodies performing public tasks is universally recognised, national practice is very diverse on how to ensure conformity of legislation with the Constitution. While judicial review is an effective means to reach this goal, there may also be other means to guarantee the proper implementation of the Constitution to ensure respect for the Rule of Law, such as a priori review by a specialised committee.18"
Footnote 16: "The principle of legality is explicitly recognised as an aspect of the Rule of Law by the European Court of Justice, see ECJ, C-496/99 P, Commission v. CAS Succhi di Frutta, 29 pril 2004, § 63."
Footnote 17: "This results from the principle of separation of powers, which also limits the discretion of the executive: cf. CM(2008)170, The Council of Europe and the Rule of Law, § 46"
Footnote 18: "The Venice Commission is in principle favourable to full review of constitutionality, but a proper implementation of the Constitution is sufficient: cf. CDL-AD(2008)010, Opinion on the Constitution of Finland, § 115ff. See especially the section on Constitutional Justice (II.E.3)."
"2. Compliance with the law19
Do public authorities act on the basis of, and in accordance with standing law?20
i. Are the powers of the public authorities defined by law?21.
ii. Is the delineation of powers between different authorities clear?.
iii. Are the procedures that public authorities have to follow established by law?
iv. May public authorities operate without a legal basis? Are such cases duly justified?
v. Do public authorities comply with their positive obligations by ensuring implementation and effective protection of human rights?
vi. In cases where public tasks are delegated to private actors, are equivalent guarantees established by law?2245. A basic requirement of the Rule of Law is that the powers of the public authorities are defined by law. In so far as legality addresses the actions of public officials, it also requires that they have authorisation to act and that they subsequently act within the limits of the powers that have been conferred upon them, and consequently respect both procedural and substantive law. Equivalent guarantees should be established by law whenever public powers are delegated to private actors – especially but not exclusively coercive powers. Furthermore, public authorities must actively safeguard the fundamental rights of individuals vis-à-vis other private actors.23
46. "Law" covers not only constitutions, international law, statutes and regulations, but also, where appropriate, judge-made law,24 such as common-law rules, all of which is of a binding nature. Any law must be accessible and foreseeable.25
Footnote 19: On the hierarchy of norms, see CDL-JU(2013)020, Memorandum – Conference on the European standards of Rule of Law and the scope of discretion of powers in the member States of the Council of Europe (Yerevan, Armenia, 3-5 July 2013).
Footnote 20: The reference to « law » for acts and decisions affecting human rights is to be found in a number of provisions of the European Convention on Human Rights, including Article 6.1, 7 and Articles 8.2, 9.2, 10.2 and 11.2 concerning restrictions to fundamental freedoms. See, among many other authorities, ECtHR Amann v. Switzerland, 27798/95, 16 February 2000, § 47ff; Slivenko v. Latvia, 48321/99, 9 October 2003, § 100; X. v. Latvia, 27853/09, 26 November 2013,
§ 58; Kurić and Others v. Slovenia, 26828/06, 12 March 2014, § 341.
Footnote 21: Discretionary power is, of course, permissible, but must be controlled. See below II.C.1.
Footnote 22: Cf. below II.A.8..
Footnote 23: For a recent reference to positive obligations of the State to ensure the fundamental rights of individuals vis-à-vis private actors, see ECtHR Bărbulescu v. Romania, 61496/08, 12 January 2016, § 52ff (concerning Article 8 ECHR)..
Footnote 24: Law "comprises statute law as well as case-law", ECtHR Achour v. France, 67335/01, 29 March 2006, § 42; cf
Kononov v. Latvia [GC], 36376/04, 17 May 2010, § 185.
Footnote 25: ECtHR The Sunday Times v. the United Kingdom (No. 1), 6538/74, 26 April 1979, § 46ff. On the conditions of accessibility and foreseeability, see, e.g., ECtHR Kurić and Others v. Slovenia, 26828/06, 26 June 2012, § 341ff; Amann v. Switzerland, 27798/95, 16 February 2000, § 50; Slivenko v. Latvia, 48321/99, 9 October 2003, § 100. The Court of the European Union considers that the principles of legal certainty and legitimate expectations imply that "the effect of Community legislation must be clear and expectable to those who are subject to it": ECJ, 212 to 217/80, Amministrazione delle finanze dello Stato v. SRL Meridionale Industria Salumi and Others, 12 November 1981, § 10; or "that legislation be clear and precise and that its application be foreseeable for all interested parties": CJEU, C-585/13, Europäisch-Iranische Handelsbank AG v. Council of the European Union, 5 March 2015, § 93; cf. ECJ, C-325/91, France v Commission, 16 June 1993, § 26. For more details, see II.B (legal certainty).
"7. Duty to implement the law
What measures are taken to ensure that public authorities effectively implement the law?
i. Are obstacles to the implementation of the law analysed before and after its adoption?
ii. Are there effective remedies against non-implementation of legislation?
iii. Does the law provide for clear and specific sanctions for non-obedience of the law?38
iv. Is there a solid and coherent system of law enforcement by public authorities to enforce these sanctions?
v. Are these sanctions consistently applied?53. Although full enforcement of the law is rarely possible, a fundamental requirement of the Rule of Law is that the law must be respected. This means in particular that State bodies must effectively implement laws. The very essence of the Rule of Law would be called in question if law appeared only in the books but were not duly applied and enforced.39 The duty to implement the law is threefold, since it implies obedience to the law by individuals, the duty reasonably to enforce the law by the State and the duty of public officials to act within the limits of their conferred powers.
54. Obstacles to the effective implementation of the law can occur not only due to the illegal or negligent action of authorities, but also because the quality of legislation makes it difficult to implement. Therefore, assessing whether the law is implementable in practice before adopting it, as well as checking a posteriori whether it may be and is effectively applied is very important. This means that ex ante and ex post legislative evaluation has to be performed when addressing the issue of the Rule of Law.
55. Proper implementation of legislation may also be obstructed by the absence of sufficient sanctions (lex imperfecta), as well as by an insufficient or selective enforcement of the relevant sanctions."Footnote 38: "On the need for effective and dissuasive sanctions, see e.g. CDL-AD(2014)019, § 89; CDL-AD(2013)021, § 70.
Footnote 39: The need for ensuring proper implementation of the legislation is often underlined by the Venice Commission: see e.g. CDL-AD(2014)003, § 11: "the key challenge for the conduct of genuinely democratic elections remains the exercise of political will by all stakeholders, to uphold the letter and the spirit of the law, and to implement it fully and effectively"; CDL-AD(2014)001, § 85.
III. CoE Handbook "The administration and you"
CoE (ed.), The administration and you, 1st edition (1996/1997), pp. 16 ff.:
"16. The principle of lawfulness requires not only that the administrative authorities shall not break the law, but also that all their decisions have a basis in law and that their content complies with the law. Furthermore, it requires that compliance by the administrative authorities with these requirements may be effectively enforced. Implicitly, the principle of lawfulness also means that the law as to the functions and powers of the administrative authorities should be validly enacted and sufficiently clear and specific.
17. The principle of lawfulness also requires that unlawful administrative acts must, in principle, be withdrawn. However, other principles which protect individuals’ rights vis-à-vis the administrative authorities may take precedence over that rule [...]."
CoE (ed.), The administration and you, 2nd edition (2018), pp. 9 ff.
"The content of decisions taken by public authorities and the manner in which they are taken must have a basis in law. Where a public authority acts outside or beyond its powers (ultra vires), then that action will be unlawful. So that the public may understand the nature and extent of a public authority’s powers, these powers should be clear, precise and published widely. [...].
Relevant sources of law for the purposes of this principle will depend on the legal system of each state but will normally refer to a state’s constitution, statute law and secondary legislation. Also relevant are decisions and orders of its domestic courts and/or general principles of law. Administrative guidelines may also be a source of law to the extent that they can be invoked by domestic courts. Customary and conventional rules of international law will also be relevant in jurisdictions where they have the force of law. The European Convention on Human Rights is a key source of law for member states of the Council of Europe."
ECtHR, judgment Iatridis v. Greece (31107/96) 25 March 1999:
"58. The Court reiterates 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 sentence of the first paragraph authorises a deprivation of possessions only "subject to the conditions provided for by law" and 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 [...] and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it [...]. 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 [...] becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary."
ECtHR, judgment Leela Förderkreis e.V. and Others v. Germany (58911/00) 6 November 2008:
"85. The remaining applicant associations maintained that the Government’s information campaign had had no legal basis. They considered that the principle of proportionality did not set sufficiently clear limits to the exercise of the Government’s discretionary power where interferences with the freedom of religion derived directly from other constitutional rights.
86. The Court reiterates its settled case-law that the expression "prescribed by law" requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct [...].
87. Further, as regards the words "in accordance with the law" and "prescribed by law" which appear in Articles 8 to 11 of the Convention, the Court observes that it has always understood the term "law" in its "substantive" sense, not its "formal" one [...]"Law" must be understood to include both statutory law and judge-made "law" (see, among other authorities, The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 30, § 47, and Casado Coca v. Spain, judgment of 24 February 1994, Series A no. 285-A, p. 18, § 43). In sum, the "law" is the provision in force as the competent courts have interpreted it.
88. The Court further reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. It must also be borne in mind that, however clearly drafted a legal provision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clarification of doubtful points and for adaptation to particular circumstances. A margin of doubt in relation to borderline facts does not by itself make a legal provision unforeseeable in its application. Nor does the mere fact that such a provision is capable of more than one construction mean that it fails to meet the requirement of "foreseeability" for the purposes of the Convention. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice [...].
89. The Court notes that in its decision of 26 June 2002 the Federal Constitutional Court found that the legal basis of the interference under consideration was provided by the Basic Law. The duty of imparting information on subjects of public concern was one of the governmental tasks directly assigned by the Basic Law to the Government. The Court accepts that it can prove difficult to frame law with a high precision on matters such as providing information, where the relevant factors are in constant evolution in line with developments in society and in the means of communication, and tight regulation may not be appropriate. In these circumstances, the Court considers that the Government’s information-imparting role did not require further legislative concretisation.".
ECtHR (GC), judgment Vavřička and Others v. Czech Republic (49317/07) 8 April 2021:
"266. The Court reiterates that an impugned interference must have some basis in domestic law, which law must be adequately accessible and be formulated with sufficient precision to enable those to whom it applies to regulate their conduct and, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 167, 15 November 2016, with a further reference).
267. The Court notes that the vaccination duty has its specific basis in section 46(1) and (4) of the PHP Act, applied in conjunction with the Ministerial Decree issued by the Ministry in the exercise of the power conferred on it to this end by sections 46(6) and 80(1) of the PHP Act [...]. The consequences of non-compliance with the duty stem, for Mr Vavřička, from the application of section 29(1)(f) and (2) of the MO Act [...] and, for the child applicants, from the application of section 34(5) of the Education Act, in conjunction with section 50 of the PHP Act [...]. The accessibility and foreseeability of those provisions have not been disputed by the applicants.
268. Rather, the applicants’ specific challenge to the lawfulness of the impugned interference rests primarily on their contention, made in reliance on the provisions of Article 4 of the Charter of Fundamental Rights and Freedoms [...], that in the given context the term "law" should be understood as referring exclusively to an Act of Parliament, this being how the notion of "law" (zákon) is commonly understood at the national level. They take issue with the fact that the Czech vaccination scheme is based on a combination of primary and secondary legislation.
269. The Court reiterates that the term "law" as it appears in the phrases "in accordance with the law" and "prescribed by law" in Articles 8 to 11 of the Convention, is to be understood in its "substantive" sense, not its "formal" one. It thus includes, inter alia, "written law", not limited to primary legislation but including also legal acts and instruments of lesser rank. In sum, the "law" is the provision in force as the competent courts have interpreted it (see, for example, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 83, 14 September 2010, with a further reference).
270. Moreover, the Court observes that the constitutionality of the legislative arrangement in question was examined in extenso and upheld by both the SAC and the Constitutional Court [...].
271. The Court is therefore satisfied that the interference in question was in accordance with the law within the meaning of the second paragraph of Article 8 of the Convention."
ECtHR (GC), judgement Broniowski v. Poland (31443/96) 22 June 2004:
"184. The rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 require States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation […]. In the context of the present case, it was incumbent on the Polish authorities to remove the existing incompatibility between the letter of the law and the State-operated practice which hindered the effective exercise of the applicant's right of property. Those principles also required the Polish State to fulfil in good time, in an appropriate and consistent manner, the legislative promises it had made in respect of the settlement of the Bug River claims. This was a matter of important public and general interest […]. As rightly pointed out by the Polish Constitutional Court […], the imperative of maintaining citizens' legitimate confidence in the State and the law made by it, inherent in the rule of law, required the authorities to eliminate the dysfunctional provisions from the legal system and to rectify the extra-legal practices.
185. In the present case, as ascertained by the Polish courts and confirmed by the Court's analysis of the respondent State's conduct, the authorities, by imposing successive limitations on the exercise of the applicant's right to credit, and by applying the practices that made it unenforceable and unusable in practice, rendered that right illusory and destroyed its very essence. […]."
ECtHR, judgment Beian v. Romania (30658/05) 6 December 2007:
"33. However, where States decide to enact legislation to compensate victims of past injustices, it must be implemented with reasonable clarity and coherence in order to avoid, in so far as possible, legal uncertainty and ambiguity for the legal persons concerned. In that context, it should be stressed that uncertainty – be it legislative, administrative or judicial – is an important factor to be taken into account in assessing the State’s conduct [...].
34. In the instant case the Court notes that, under the terms of Law no. 309-2002, the only persons who qualified for the compensatory measures were conscripts who had performed forced labour in the units coming under the authority of the Labour Department. In a series of judgments delivered after the judgment of 2 December 2003, and on the basis of the principle of non‑discrimination, the HCCJ extended the scope of Law no. 309-2002 to include all conscripts who had performed forced labour during their military service, irrespective of the hierarchical structure to which their military unit belonged.
35. However, in another series of judgments delivered over the same period the court developed a line of case-law to the opposite effect, dismissing appeals, as in the applicant’s case, from former conscripts who had performed forced labour outside the framework of the Labour Department.
36. In the absence of a mechanism for ensuring consistency in its case‑law, the highest domestic court delivered diametrically opposed judgments, sometimes on the same day, concerning the scope of Law no. 309‑2002 (see, for instance, the judgments of 11 January and 1 and 28 March 2005).
37. Admittedly, divergences in case-law are an inherent consequence of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. However, the role of a supreme court is precisely to resolve such conflicts [...].
38. In the instant case it is clear that the HCCJ was the source of the profound and lasting divergences complained of by the applicant.
39. The practice which developed within the country’s highest judicial authority is in itself contrary to the principle of legal certainty, a principle which is implicit in all the Articles of the Convention and constitutes one of the basic elements of the rule of law [...]. Instead of fulfilling its task of establishing the interpretation to be followed, the HCCJ itself became a source of legal uncertainty, thereby undermining public confidence in the judicial system [...].
40. The Court therefore concludes that this lack of certainty with regard to the case-law had the effect of depriving the applicant of any possibility of obtaining the benefits provided for by Law no. 309-2002, while other persons in a similar situation were awarded those benefits.
Accordingly, there has been a violation of Article 6 § 1 of the Convention."
For the pan-European general principles on discretion and their relationship to the pan-European general principles on legality click here.
Negotiated settlements
- should be either generally permitted or permitted in certain types of cases deemed appropriate, in particular those concerning individual administrative acts, contracts, civil liability, and generally speaking, claims relating to a sum of money (Appendix, principle I 2)
- should guarantee fair proceedings allowing in particular for the respect of the rights of the parties and the principle of equality (Appendix, principle I 3 c);
- should not unless otherwise provided by law be used by administrative authorities to disregard their obligations (Appendix, principle III 3 i)
Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2001)121 Addendum I) 3 August 2001):
"101. [Negotiated settlement] is the contract whereby the parties in a dispute put an end to it amicably. A negotiated settlement is often, but not exclusively, the upshot of negotiation between the parties or of a conciliation or mediation procedure, and serves equally as a means of preventing and of resolving administrative disputes.
102. Its essential feature is that it is a contract concluded by the parties and binding upon them. In this respect it has something in common with arbitration, to the extent that it entails the agreement of the parties. Unlike arbitration, however, this agreement does not open the procedure but terminates it and concerns the substantive issues.
103. Likewise, as with arbitration, a negotiated settlement is binding on the parties that conclude it.
104. Although it is their frequent outcome, negotiated settlement is not intrinsically linked with conciliation and mediation procedures, and the fact that these do not necessarily end in a negotiated settlement, even if they succeed, is not the only reason; rather, negotiated settlements can be reached by the parties without a mediation or conciliation procedure having been conducted beforehand.
105. It was agreed that negotiated settlement was a useful method in administrative matters and noted that it was not sufficiently used in the member states.
106. In the paragraph on negotiated settlement, the appendix lays down some guidelines for administrative action in the matter: public officials authorised to make compromises must be assigned the proper powers for that purpose, however, they cannot make a negotiated settlement to disregard one of their duties, and inter alia, to override a public policy obligation.
107. The question of whether it should be specified in the appendix that an administrative authority may not promise to pay a sum of money it does not owe was discussed. Common law countries have the institution of ex gratia payments, which means that the Ombudsman can persuade the administration to pay, of its own accord, a sum of money it does not owe by way of compensation for a wrong. But in other countries administrative case-law systematically declares that negotiated settlements in which an administrative authority has agreed to pay a sum of money are null and void and that there is no principle whereby the administrative authority's liability can be established. The wording used in the appendix thus allows national legislation to provide for such a restriction on the administration's powers of reaching a negotiated settlement, without making this compulsory."
Click here for further information on the genesis of Recommendation Rec (2001)9.
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The Pan-European General Principles on the Status of Public Officials and Civil Servants
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on the Status of Public Officials
II. Functions of Public Officials in General
III. Status of Public Officials
IV. Public Officials as Whistleblowers
I. Scope of the Pan-European General Principles on the Status of Public Officials
3. Approach of Article 2 (a) of the United Nations Convention against Corruption
4. Combined approach focusing on persons holding an administrative office
1. Approach of Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe
Introduction of the Appendix of Recommendation CM/Rec(2000)6 on the status of public officials in Europe:
"For the purposes of this Recommendation, public officials are any members of staff, whether statutory or contractual, employed by state authorities or departments whose salary is paid out of the state budget, excluding elected representatives and certain categories of staff in so far as they come under special regulations".
Explanatory Memorandum (reproduced in CoE (ed.), The status of public officials in Europe - Recommendation R (2000) 6 and explanatory memorandum (2000), pp. 11 ff.):
"The project group [...] limited the scope of the term "public officials" to state employees, including all officials whose salary is paid by the state irrespective of the legal relationship between the employee and the state and their place of work, as well as public officials for state agencies. The project group therefore excluded all emplpoyees of self-governing local and regional authorities. Yet, some principles therein could be applied mutadis mutandis to the latter. It also wished to exclude, at state level, categories of staff covered by special regulations (depending on the particular country, these may include the military, police judiciary, members of certain independent boards etc.). Nevertheless, it did not mean to imply that legislation applying to these catgories should not take into account the principles laid down for state officials. With regard to local and regional authority staff, it took into account the work of the Steering Committee in Local and Regional Democracy (CDLR) which has prepared a set of guidelines for drawing up legislation on the status and working conditions of local and regional authority staff. Finally, it excluded elected representatives, as was to be expected. The recommendation therefore concerns all public officials linked to the state either by the law itself (so-called "statuary staff" or civil servants) or by a private or public law contract (known as "contractual" staff or employees)."
2. Approach of Recommendation Rec(2000)10 of the Committee of Ministers to member states on codes of conduct for public officials
"Appendix to Recommendation No. R (2000) 10
Model code of conduct for public officials
Interpretation and application
Article 1
(1) This Code applies to all public officials.
(2) For the purpose of this Code "public official" means a person employed by a public authority.
(3) The provisions of this Code may also be applied to persons employed by private organisations performing public services.
(4) The provisions of this Code do not apply to publicly elected representatives, members of the government and holders of judicial office."
"Public officials
Given the variety of tasks undertaken by a modern public administration, with staff from different backgrounds and from non-homogenous social groups, the need to codify rules of conduct is now greater than in the past, when a more homogenous staff carried out similar activities and shared similar values.
The specific statutes of the civil service need to be taken into account when codes of conduct are considered, in particular when the codes are to be used, inter alia, as a means of combating corruption. Public service requires integrity from public officials. They are not only in the service of the government, taken in a narrow sense, but should also carry out their duties as a service to society at large. The responsibilities of the public official are therefore to a certain extent different from those of an employee in the private sector.
Special consideration needs to be given to the senior civil service and to members of the government who may be at the same time elected representatives. These categories may require special rules.
It should be noted, however, that a code of conduct cannot replace a statutory law on the status of public officials.
Elected representatives
Elected representatives are usually responsible to their electorate and/or to their party. At the same time, the public interest requires from them accountability, transparency and integrity. Tradition plays a great role in the evolution of the situation in member states. In the context of combating corruption, special attention needs to be given to questions of immunity, relations with the party, sanctions and conflicts of interest. Changes to the current situation require careful consideration.
Other persons
Codes of conduct differ depending on which category of persons is addressed. The aims of codes for judges or prosecutors necessarily differ from those drafted for auditors or private business. As the aims and legal situation differ, so do the sanctions which may apply in a particular case."
3. Approach of Article 2 (a) of the United Nations Convention against Corruption
The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).
"Article 2 - Use of Terms
For the purpose of this Convention:
(a) "Public official" shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a "public official" in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, "public official" may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party
(b) [...]."
See on Article 2 (a) of the United Nations Convention against Corruption para. 21 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 21 ff. of the Travaux Préparatoires; see, furthermore, C. Spoerl, 'Article 2: Use of Terms' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 21 - 34.
4. Combined approach focusing on persons holding an administrative office"Public official" means any person employed by a state, regional or local authority or department irrespective of the legal relationship between the employee and the authority and their place of work, excluding publicly elected representatives, members of the government and holders of judicial office but including members of the police and the military.
Because persons who are assigned to the police and the military (at least insofar as they perform administrative or police duties within the country) are also included here, the term "public official" is preferable to "civil servant" in the present context.
For the pan-European general principles on the status of judges click here.
II. Functions of Public Officials in General
ECtHR, judgement Ahmed and Others v. UK (22954/93) 2 September 1998:
"53.The Court observes that the local government system of the respondent State has long rested on a bond of trust between elected members and a permanent corps of local government officers who both advise them on policy and assume responsibility for the implementation of the policies adopted. That relationship of trust stems from the right of council members to expect that they are being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole. Members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not founder on the political opposition of their members’ own advisers; it is also to be noted that members of the public are equally entitled to expect that in their own dealings with local government departments they will be advised by politically neutral officers who are detached from the political fray.
The aim pursued by the Regulations was to underpin that tradition and to ensure that the effectiveness of the system of local political democracy was not diminished through the corrosion of the political neutrality of certain categories of officers.
54. For the above reasons, the Court concludes that the interferences which resulted from the application of the Regulations to the applicants pursued a legitimate aim within the meaning of paragraph 2 of Article 10, namely to protect the rights of others, council members and the electorate alike, to effective political democracy at the local level."
ECtHR [GC], judgment Guja v. Moldowa (14277/04) 12 Feburary 2008:
"71. Since the mission of civil servants in a democratic society is to assist the government in discharging its functions and since the public has a right to expect that they will help and not hinder the democratically elected government, the duty of loyalty and reserve assumes special significance for them [...]. In addition, in view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one."
"136. The Court reiterates that it accepts the Government’s submission that the prohibition on strikes by civil servants as combined with several complementary, legally enforceable fundamental rights [...] pursues the overall aim of providing for good administration. This reciprocal system of interrelated rights and duties [...] guarantees the effective performance of functions delegated to the civil service and thereby ensures the protection of the population, the provision of services of general interest and the protection of the rights enshrined in the Convention through effective public administration in manifold situations [...]. In this connection, the Court observes, more generally, that restrictions on the right to strike may serve to protect the rights of others, which are not limited to those on the employer’s side in an industrial dispute, and may serve to fulfil a Contracting State’s positive obligations under its constitutional law, the Convention and other human rights treaties [...]."
3. Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
5. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
Introduction of the Appendix of Recommendation CM/Rec(2000)6:
"For the purposes of this Recommendation, public officials are any members of staff, whether statutory or contractual, employed by state authorities or departments whose salary is paid out of the state budget, excluding elected representatives and certain categories of staff in so far as they come under special regulations.
The systems governing public officials in Europe lie between two models that can be generally defined as contractual and career system. In the former, public officials are under a contract where conditions apply which are more or less similar to those of employees in the private sector. In the latter system, public officials are subject to a specific status defined by law or regulation.
The choice of system depends on the specific circumstances of each country. Yet, it is important to ensure that, whatever the system, a number of essential principles of good practice, which follow hereafter, are respected, as these principles constitute the very basis of an efficient and citizen-oriented civil service."
In the following, the principles of Recommendation CM/Rec(2000)6 deal, inter alia, with conditions and requirement for recruitments (no. 4), recruitment procedures (no. 5), transfer (no. 6), promotion (no. 7), social protection (no. 11), remuneration (no. 12), duties (no. 13) and disciplinary responsibility (no. 14), training (no. 15), termination (no. 16) and judicial protection (no. 17)..
The genesis of Recommendation CM/Rec(2000)6 is explained in the Explanatory Memorandum (reproduced in CoE (ed.), The status of public officials in Europe - Recommendation R (2000) 6 and explanatory memorandum (2000), pp. 11 ff.); click here for further information on the genesis of Recommendation CM/Rec(2000)6
2. Recommendation Rec(2000)10 of the Committee of Ministers to member states on codes of conduct for public officials"Article 3 - Object of the Code. The purpose of this Code is to specify the standards of integrity and conduct to be observed by public officials, to help them meet those standards and to inform the public of the conduct it is entitled to expect of public officials."
For the purpose of codes of conduct see the Explanatory Memorandum to this recommendation:
"Codes of conduct should be clear and concise statements of the guiding principles of conduct which an organisation expects of its members and the values for which it stands.
The purpose of a code of conduct for public servants is threefold:
– it is a statement of the ethical climate that prevails in the public service;
– it spells out the standards of conduct expected of public servants;
– it tells members of the public what to expect of public servants in conduct and attitude when dealing with them.
It is both a public document and a message addressed to every individual public servant. It cannot be assumed that a public servant knows what standards of conduct are expected of him if he has never been told what they are. Reliance on some unwritten process of absorption of standards in the working environment is haphazard and insufficient. If the public servant is to be called to account for his conduct, it is essential that he should have been informed of what was expected of him and that he should know in what respects his conduct has fallen short of those expectations. A clear, concise and accessible written statement of the standards by which his working life is to be conducted is a basic requirement."
3. Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
"1. Mindful of the Council of Europe’s particular role in Europe’s new institutional architecture and the Laeken Declaration of December 2001 calling for greater democracy, transparency and efficiency on the part of European institutions, the Parliamentary Assembly asks the European Union’s Convention on the Future of Europe to include an article laying down fundamental principles for European and national public officials, such as universal and fair access to such functions, equal opportunities for women, integrity, loyalty, objectivity and probity – in consideration of the fact that a high-quality civil service is a vital precondition for strong democracy and the rule of law.
[...].
6. The Assembly considers it necessary to develop, where necessary, a clearer demarcation between the political sphere and public administration, for the purpose of ensuring the independence of national public officials and defining better their tasks and responsibilities.
7. Member states should increase the financial resources devoted to the professional training of officials at national, European and international level in order to ensure that they possess the skills needed to perform their functions. National civil services should actively recruit in institutions of higher education to attract talented people for employment.
8. Finally, the Assembly recommends that the Committee of Ministers asks Council of Europe member states to shape their civil service legislation in such a way as to facilitate exchanges between the public and the private sector of, in particular, highly talented and internationally experienced staff."
"7. The Committee of Ministers would also like to recall the work being carried out by the Steering Committee on Local and Regional Democracy (CDLR) on public ethics at local and regional level. The draft handbook on Public Ethics at local and regional level is currently the subject of national consultations in member states and will be the centrepiece of an international conference in Spring 2004 organised under the Dutch Chairmanship of the Committee of Ministers. This handbook is also intended to offer guidance on how to enhance ethical standards and behaviour in local and regional administrations.
8. Effectiveness, integrity, competence and accountability of civil servants depend on the quality of the legal and regulatory framework regulating the civil service. With this objective in mind, the Committee of Ministers has adopted Recommendation No. R(2000)6 on the status of public officials in Europe.
9. In addition, the Project Group on Administrative Law (CJ-DA) under the aegis of the European Committee on Legal Co-operation (CDCJ) prepared the Report “The status of public officials in Europe”, published in 1999, and the Handbook “The Administration and You”, published in 1996, dealing also with civil service issues.
10. Civil service systems of different European countries are based on many aspects unique to the countries concerned such as legal traditions, history and culture as well as the social, economic and political conditions. Nevertheless, the different systems in Europe have also many common elements and values that have been consolidated in the above-mentioned instruments. These instruments thus lay down the main principles in the field of civil service that should be developed by the domestic legislation of the member states.
11. It is also worth mentioning the activities of bilateral assistance in the field of the reform of civil service in several member states such as Armenia, Bulgaria, Moldova, Russian Federation and "the former Yugoslav Republic of Macedonia", as well as the multilateral conference that will be organised in Warsaw on “The Right to a Good Administration”, on 4-5 December 2003.
12.The work of the Multidisciplinary Group on Corruption (GMC) under the joint responsibility of the European Committee on Crime Problems (CDPC) and the European Committee on Legal Co-operation (CDCJ) resulted in the adoption of Recommendation No. R(2000)10 on codes of conduct for public officials.
13. The rules relating to the rights and duties of public officials should take into account the requirements of the fight against corruption and provide for appropriate and effective disciplinary measures, and to promote further specification of the behaviour expected from public officials. This recommendation therefore invites the member states to promote, subject to national law and principles of public administration, the adoption of national codes of conduct for public officials based on the model code of conduct for public officials appended to the recommendation.
14. Finally, civil service reform in Europe is going to be the subject of the next UniDem Campus seminar organised by the Venice Commission (November 2003)."
4. Public officials and Guiding Principle 10 of Resolution 97(24) of the Committee of Ministers of the Council of Europe on the twenty guiding principles for the fight against corruption
"The Committee of Ministers [...]
Having received the draft 20 guiding principles for the fight against corruption, elaborated by the Multidisciplinary Group on Corruption (GMC);
Firmly resolved to fight corruption by joining the efforts of our countries,
agrees to adopt the 20 guiding principles for the fight agains corruption set out below:
1. [...]
10. to ensure that the rules relating to the rights and duties of public officials take into account the requirements of the fight against corruption and provide for appropriate and effective disciplinary measures; promote further specification of the behaviour expected from public officials by appropriate means, such as codes of conduct;
[...]."
Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).
5. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
"F. Examples of particular challenges to the Rule of Law
[...].
1. Corruption139 and conflict of interests
a. Preventive Measures
What are the preventive measures taken against corruption?
i. In the exercise of public duties, are specific rules of conduct applicable to public officials? Do these rules take into account:
(1) the promotion of integrity in public life by means of general duties (impartiality and neutrality etc.);
(2) restrictions on gifts and other benefits;
(3) safeguards with respect to the use of public resources and information which is not meant to be public;
(4) regulations on contacts with third parties and persons seeking to influence a public decision including governmental and parliamentary work?
ii. Are there rules aimed at preventing conflicts of interest in decision-making by public officals, e.g. by requiring disclosure of any conflicts in advance?
iii. Are all categories of public officials covered by the above measures, e.g. civil servants, elected or appointed senior officials at State and local levels, judges and other holders of judicial functions, prosecutors etc. ?
iv. Are certain categories of public officials subject to a system of disclosure of income, assets and interests, or to further requirements at the beginning and the end of a public office or mandate e.g. specific integrity requirements for appointment, professional disqualifications, post-employment restrictions (to limit revolving doors or so-called “pantouflage”)?
v. Have specific preventative measures been taken in specific sectors which are exposed to high risks of corruption, e.g. to ensure an adequate level of transparency and supervision over public tenders, and the financing of political parties and election campaigns?
b. criminal law measures
[...].
c. Effective compliance with, and implementation of preventive and repressive measures
How is effective compliance with the above measures ensured?
i. [...].
ii. [...].
iii. Are effective, proportionate and dissuasive criminal and administrative sanctions provided for corruption-related acts and non-compliance with preventive mechanisms?
iii. [...].
115. Corruption leads to arbitrariness and abuse of powers since decisions will not be made in line with the law, which will lead to decisions being arbitrary in nature. Moreover, corruption may offend equal application of the law: it therefore undermines the very foundations of the Rule of Law. Although all three branches of powers are concerned, corruption is a particular concern for the judiciary, prosecutorial and law enforcement bodies, which play an instrumental role in safeguarding the effectiveness of anti-corruption efforts. Preventing and sanctioning corruption-related acts are important elements of anti-corruption measures, which are addressed in a variety of international conventions and other instruments.142
116. Preventing conflicts of interest is an important element of the fight against corruption. A conflict of interest may arise where a public official has a private interest (which may involve a third person, e.g. a relative or spouse) liable to influence, or appearing to influence, the impartial and objective performance of his or her official duties.143 The issue of conflicts of interest is addressed in international conventions and soft law.144 [...]."
Footnote 139: On the issue of corruption, see Group of States Against Corruption (GRECO), Immunities of public officials as possible obstacles in the fight against corruption, in Lessons learned from the three Evaluation Rounds (2000-2010) - Thematic Articles.
Footnote 142: See for example the United Nations Convention against Corruption; Criminal Law Convention on Corruption (CETS 173); Civil Law Convention on Corruption (CETS 174); Additional Protocol to the Criminal Law Convention on Corruption (CETS 191); CM/Rec(2000)10 on codes of conduct for public officials; CM/Res (97) 24 on the twenty guiding principles for the fight against corruption.
Footnote 143: CM/Rec(2000)10 on codes of conduct for public officials, Article 13.
Footnote 144: United Nations Convention against Corruption, in particular Article 8.5; CM/Rec(2000)10, Appendix - Model code of conduct for public officials, Articles 13ff; cf. CM/Res (97) 24 on the twenty guiding principles for the fight against corruption.
6. Article 7 and 8 of the United Nations Convention against Corruption as a "Transmission Belt" for the CoE Work on the Status of Public Officials
The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).
As part of Chapter II on 'Preventive measures' Article 7 and 8 of the United Nations Convention against Corruption stipulate:
"Article 7. Public sector
1. Each State Party shall, where appropriate and in accordance with the fundamental principles of its legal system, endeavour to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and, where appropriate, other non-elected public officials:
(a) That are based on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude;
(b) That include adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation, where appropriate, of such individuals to other positions;
(c) That promote adequate remuneration and equitable pay scales, taking into account the level of economic development of the State Party;
(d) That promote education and training programmes to enable them to meet the requirements for the correct, honourable and proper performance of public functions and that provide them with specialized and appropriate training to enhance their awareness of the risks of corruption inherent in the performance of their functions. Such programmes may make reference to codes or standards of conduct in applicable areas.
2. Each State Party shall also consider adopting appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to prescribe criteria concerning candidature for and election to public office.
3. Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.
4. Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.Article 8. Codes of conduct for public officials
1. In order to fight corruption, each State Party shall promote, inter alia, integrity, honesty and responsibility among its public officials, in accordance with the fundamental principles of its legal system.
2. In particular, each State Party shall endeavour to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable and proper performance of public functions.
3. For the purposes of implementing the provisions of this article, each State Party shall, where appropriate and in accordance with the fundamental principles of its legal system, take note of the relevant initiatives of regional, interregional and multilateral organizations, such as the International Code of Conduct for Public Officials contained in the annex to General Assembly resolution 51/59 of 12 December 1996.
4. Each State Party shall also consider, in accordance with the fundamental principles of its domestic law, establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions.
5. Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.
6. Each State Party shall consider taking, in accordance with the fundamental principles of its domestic law, disciplinary or other measures against public officials who violate the codes or standards established in accordance with this article."
See on Article 7 and 8 of the United Nations Convention against Corruption para. 69 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 85 ff. and pp. 95 ff. of the Travaux Préparatoires; see, furthermore, J. Bacio Terracino, 'Article 7: Public Sector' and 'Article 8: Codes of Conduct for Public Officials' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 65 - 90.
IV. Public Officials as Whistleblowers
1. Recommendation CM/Rec(2014)7 of the Committee of Ministers to member states on the protection of whistleblowersSee the Explanatory Memorandum
In its recent case law, the ECtHR has referred to Recommendation CM/Rec(2014)7 and its Explanatory memorandum as an apparently well-drafted concretisation of the State's obligations to protect whistleblowers under Article 10 ECHR: ECtHR, judgment Gawlik v. Liechtenstein (23922/19) 16 Feburary 2021 at [39], [76] and [82]; ECtHR [GC], judgement Halet v. Luxembourg (21884/18) 14 Feburary 2023 at [57], [119], [123] and [125].
ECtHR [GC] judgment Guja v. Moldowa (14277/04) 12 Feburary 2008:
"72. [...] the Court notes that a civil servant, in the course of his work, may become aware of in-house information, including secret information, whose divulgation or publication corresponds to a strong public interest. The Court thus considers that the signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large. In this context, the Court has had regard to the following statement from the Explanatory Report to the Council of Europe’s Civil Law Convention on Corruption (see paragraph 46 above): “In practice corruption cases are difficult to detect and investigate and employees or colleagues (whether public or private) of the persons involved are often the first persons who find out or suspect that something is wrong."
ECtHR, judgment Gawlik v. Liechtenstein (23922/19) 16 Feburary 2021:
"65. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large [...]. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion [...]."
ECtHR [GC], judgement Halet v Luxembourg (21884/18) 14 Feburary 2023:
"111. When considering disputes involving freedom of expression in the context of professional relationships, the Court has found that the protection of Article 10 of the Convention extends to the workplace in general [...]. It has also pointed out that this Article is not only binding in the relations between an employer and an employee when those relations are governed by public law but may also apply when they are governed by private law [...]. Indeed, genuine and effective exercise of freedom of expression does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons [...].
112. Protection of freedom of expression in the workplace thus constitutes a consistent and well-established approach in the case-law of the Court, which has gradually identified a requirement of special protection that, subject to certain conditions, ought to be available to civil servants or employees who, in breach of the rules applicable to them, disclose confidential information obtained in their workplace. Thus, a body of case-law has been developed which protects “whistle-blowers”, although the Court has not specifically used this terminology. In the Guja judgment (cited above), the Court identified for the first time the review criteria for assessing whether and to what extent an individual (in the given case, a public official) divulging confidential information obtained in his or her workplace could rely on the protection of Article 10 of the Convention. It also specified the circumstances in which the sanctions imposed in response to such disclosures could interfere with the right to freedom of expression and amount to a violation of Article 10 of the Convention."