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The Pan-European General Principles on Public Procurement and other Competitive Award Procedures
(compiled by Ulrich Stelkens)
I. Definition of Competitive Award Procedures
II. Scarce CoE-Sources on Competitive Award Procedures
III. Scarce Case Law of the ECtHR Regarding Competitive Award Procedures
I. Definition of Competitive Award Procedures
There is no general concept of 'competitive award procedures' in the sources of the CoE. This is also due to the fact that the particularities and commonalities of these administrative procedures seem to have been recognised and analysed at the European level only since the 1990s (especially in connection with the development of the EEC and EC public procurement directives, namely Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts).
Following para. 29 ff. of the Explanations to Book IV of the ReNEUAL Model Rules on EU Administrative Procedure, the most pertinent examples of these procedures (partly also dealt with in 'CoE law') would be
- public procurement procedures (cf. guiding principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption)
- sales of assets and other privatisation procedures (cf. section 5 of the Recommendation No. R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities)
- selection of public officials in recruitment procedures (cf. Articles 4 and 5 of the Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe)
See for the nature of 'recruitment procedures' of public officials as 'competitive award procedures' (on the example of german administrative law) U. Stelkens, 'Judicial Protection and Competitive Award Procedures in Germany', (2021) 14:1 REALaw, pp. 141 - 165 (pp. 154 ff.)
- granting of financial aids in competitive procedures (in contrast to financial aids granted following the 'watering can principle').
By 'generalising' Article IV-9 (1) of the ReNEUAL Model Rules on EU Administrative Procedure 'competitive award procedures' may be defined as
"administrative procedures where the public authority is not legally obliged to grant an award to every person satisfying the criteria for the award".
Another approach would be to understand these procedures above all as procedures aimed at the allocation of 'scare goods'.
See e. g. F. Wollenschläger, 'EU Law Principles for Allocating Scarce Goods and the Emergence of an Allocation Procedure', (2015) 8:1 REALaw, pp. 205 - 256 (p. 208): "The article understands an allocation procedure to be an administrative procedure which aims at selecting, by using specific criteria, from among a number of individuals, one or more individuals for a specific purpose, the consideration of all applicants being ruled out because the object that is to be allocated is scarce, for whatever reason"). Scarcity, following this concept, may be natural (e. g. natural resources) or be the result of a deliberate decision of the legislator (e. g. scarcitiy of gambling or taxi concessions) or, finally, when the "public sector itself demands or supplies goods, but only does so in a limited quantity because of limited demand or of finite availability: Places at university, subsidies, public contracts or posts in the civil service are appropriate examples" (cf. Wollenschläger, op. cit., p. 206).
The latter cases (public sector demanding or supplying goods) are usually the primary focus of attention, and this is also the case here.
II. Scarce CoE-Sources on Competitive Award Procedures
1. Public Procurement and Guiding Principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption
Guiding principle 14 of Resolution (97)24 on the twenty Guiding Principles for the fight against corruption:
"The Committee of Ministers [...]
agrees [...]
14. to adopt appropriately transparent procedures for public procurement that promote fair competition and deter corruptors."
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).
In 1997, the 2nd Conference of Specialised Services in the fight against corruption was organised in Tallinn to deal with the subject "Corruption in Public Procurement". At the close of the Conference the participants adopted 17 conclusions, which appear as Appendix II to the GMC's Activity Report (1994-2000), CM(2000)158 (Restricted) 27 October 2000. Concerning public procurement procedures the participants concluded as follows:
"2. Public procurement procedures should be cost-efficient, fair and impartial, transparent and efficient. They should render corruption as difficult as possible, facilitate detection and pay particular attention to specific vulnerable points. In particular:
a) specifications and designs should be clear, precise, accessible and non-discriminatory,
b) decision-making criteria should be as objective as possible and discretion reduced to the minimum extent possible,
c) opening of bids should, as a general rule, be in public allowing, at least, the presence of public authorities and bidders and, preferably, the participation of outside interested bodies (consumer or professional associations, media, etc),
d) as far as possible, awarding should not be made by an individual person, but by committees, where evaluations are conducted collectively with independence and freedom from any undue interference by the administration or the private sector,
e) where free competition and publicity are not possible due to the very nature of the contract (e.g. security or defense expenditure) alternative means of control should be devised in order to avoid corruption,
f) those responsible for public procurement should be held accountable for their decisions,
g) independent commissions should be established to review the correctness of public procurement procedures; bidders and other interested persons should be entitled to file complaints before such commissions,
h) public administrations should provide adequate external and internal control mechanisms and auditing procedures. Among the services responsible for these controls and procedures sharing of information and co-ordination is essential.
3. The law should deal appropriately with the consequences of public procurement contracts awarded through corruption, particularly by making provision for:
a) loss of contract,
b) forfeiture of bid security,
c) liability for damages,
d) black-listings of companies and managers involved in corrupt practices."
All this shows a close link of the role of "appropriately transparent procedures for public procurement" to the fight against corruption.
2. Sales of Assets and other Privatisation Procedures and Section 5 of Recommendation No. R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities
"The Committee of Ministers [...]
Recommends the governments of member states to be guided in their law and administrative practice by the principles set out in the appendix to this recommendation,
[...]
Appendix to Recommendation No. R (93) 7
[...]
Section 5: Protection of potential purchaser
The procedures for privatisation should be established with due regard to the need for transparency and equal treatment of potential purchasers. These aims may be achieved by a variety of means, for example, public tender or competitive sale."
See on Section 5 point 3.2.6. of the Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 494 ff.):
"The aims to which member states are called upon to have due regard in this principle are transparency and equal treatment of potential purchasers. "Transparency" implies openness on the part of the public undertaking or public authorities with regard to the disclosure of the relevant information; equal treatment arises not only as regards the provision of information but also as regards all other aspects of the privatisation where there are a number of potential purchasers. However, the principle contained in Section 5 refer in particular to public tender and competitive sale as especially likely, in the event that there is more than one purchaser, to result, in practice, in the aims stated in this principle being achieved.
The question as to who should be admitted to the position of a potential purchaser, and in particular, whether foreign nationals or undertakings should be allowed to participate in the privatisation process, is a matter for the domestic law of the member states in accordance, if appropriate, with international engagements undertaken by those states, such as the EC treaties.
Where the chosen procedure is public tender or competitive sale, this principle stresses not only the necessitiy to give adequate information [...] to potential purchasers, but also the necessity that those concerned with the privatisation should not be in a position of potential conflict between their private interests and their public duty. In particular, care should be taken to ensure that the persons who participate in the management of the enterprise to be privatised or who are in charge of organising privatisation are not in position to take illicit advantage of their situation.
In some member states the concerns to which this section is directed may be adressed by the ordinary private law governing contract and commercial transactions without its being necessary to institute specific procedures."
Click here for the genesis of Recommendation No R(93)7 in general. For the "public utility doctrine" underlying Section 2 of the Appendix to Recommendation No. R (93)7 click here. For Recommendation No. R (93) 7 as a general source of the pan-European general principles on privatisation click here.
3. Selection of Civil Servants in Recruitment Procedures and Articles 4 and 5 of Recommendation CM/Rec(2000)6 of the Committee of Ministers to member states on the status of public officials in Europe
"Appendix to Recommendation No. R (2000) 6
[...]
4. Conditions and requirements for recruitment
Recruitment of public officials should be defined by equality of access to public posts and selection based on merit, fair and open competition and an absence of discrimination. Some pre-conditions may exist for accessing public posts. In addition, general requirements and specific requirements may exist for recruitment. In so far as they constitute exceptions to these principles, they should be admitted only if lawfully justified.
5. Recruitment procedures
In respect of the principles referred to above, recruitment systems and procedures should be open and transparent, and their rules should be clear. They should allow the best candidate to be appointed to meet the specific needs of the department or organisation concerned.
States should provide for the legal protection of applicants to public positions including, inter alia, ensuring the due confidentiality of sensitive information provided in the context of the selection procedure and a legal remedy for the candidates against the decision of the competent authority."
III. Scarce Case Law of the ECtHR Regarding Competitive Award Procedures
ECtHR, judgement Tinnelly and Sons Ltd. and Others and McElduff and Others v. UK (20390/92) 10 June 1998, para 72 ff.: The ECtHR simply applies the 'civil limb' of Article 6 (1) ECHR with regard to claims based on national non-discrimination legislation in competitive award procedures.
"The Court recalls that Article 6 § 1 of the Convention secures to everyone the right to have any claims relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the "right to a court", of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect [...].
In the present case, the issue which arises is whether Article 6 of the Convention applies to the proceedings at issue.
The Court must ascertain in particular whether there has been a dispute (contestation) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law [...]. In this respect, the Court recalls that Article 6 § 1 of the Convention does not itself guarantee any particular content of "civil rights and obligations" and is not meant to create new substantive rights which have no legal basis in the State concerned. Rather, the provision aims at giving procedural protection to rights which can be said, at least on arguable grounds, to be recognised under domestic law [...].
In the present case, Section 3 of the Tenders Act of the Canton of Lucerne determines that construction works and supplies shall as a rule be awarded following a competitive invitation for tenders. The Ordinance completing the Tenders Act provides in its Section 18 that the award shall fall to the cheapest offer, though it is also stated that, given the substantive requirements and the time-limits involved, the lowest tender will not always be the cheapest. Section 19 lists further criteria to be considered in case of equal or similarly favourable offers. Section 22 provides that no reasons need be given to candidates whose offers have not been considered.
It is true, in the Court’s view, that these provisions set up a competitive scheme for the award of contracts concerning public works. But it is also true that they afford the public authorities considerable discretion when taking their decision. No right emerges from these provisions for any candidate to have any particular project carried out by the public authorities.
This view is confirmed by the decisions of the Administrative Court of the Canton of Lucerne of 16 July 1996, and of the Federal Court of 12 November 1996, both of which concluded that domestic law did not grant the applicants a "right" to be awarded a particular offer upon tender.
The Court concludes that at no time could the applicants plausibly claim any particular right under domestic law. The case thus falls to be distinguished from that of Tinelly & Sons Ltd and others and McElduff and others v. the United Kingdom concerning a "right" arising from alleged discrimination of the candidates (see the judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1655 et seq.). No specific claim of discrimination has been made in the present case.
It follows that Article 6 of the Convention is not applicable to the proceedings at issue. The application is, therefore, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected, pursuant to Article 35 § 4 of the Convention."
See on this case law F. Wollenschläger, 'EU Law Principles for Allocating Scarce Goods and the Emergence of an Allocation Procedure', (2015) 8:1 REALaw, pp. 205 - 256 (p. 238 ff.)
IV. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review
The awarding decision in competitive award procedures can be considered
- as an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal (administrative acts")
and
- as an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons whether physical or legal (administrative acts)"
and
- as an 'individual decision' ("Individual decisions are those addressed solely to one or more individuals.") in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
and
- as an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").
Thus, the basic principles enshrined in these recommendations may apply also to awarding decisions, at least with regard to the unsuccessful participants of such a procedure. Therefore, the basic principles enshrined in these recommendations may apply also in the case of to awarding decisions, i.e. the pan-European general principles
- on discretion (for these principles click here),
- fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here) and
- on judicial review (for these principles click here).
As an example for such an adaption may serve the rules in the Chapter on 'Competitive award procedures' in Book IV (Article IV-9 - IV- 19) of the ReNEUAL Model Rules on EU Administrative Procedure.
V. Concretisation of the Pan-European General Principles of Transparency and Equality in Competitive Award Procedures by Non-CoE Sources?
2. Article 9 (1) of the United Nations Convention against Corruption
3. EU's Transparency Principle in Competitive Award Procedures
1. OECD Principles on Public Procurement (as a 'Key Focus Area' in the Field of 'Anti-Corruption and Integrity in the Public Sector)
- OECD Recommendation of the Council on Public Procurement (2015) - namely recommendation II on ensuring an 'adequate degree of transparency of the public procurement system in all stages of the procurement cycle', recommendation III on preserving 'the integrity of the public procurement system through general standards and procurement-specific safeguards' and recommendation IV on facilitating 'access to procurement opportunities for potential competitors of all sizes'
- OECD Public Procurement Toolbox ("In addition to better familiarising you with the 12 Principles [of Recommendation of the Council on Public Procurement], the Toolbox provides policy tools, specific country examples as well as indicators to measure your public procurement system").
2. Article 9 (1) 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).
As part of Chapter II on 'Preventive measures" Article 9 of the United Nations Convention against Corruption stipulates:
"Article 9 - Public procurement and management of public finances
(1) Each State Party shall, in accordance with the fundamental principles of its legal system, take the necessary steps to establish appropriate systems of procurement, based on transparency, competition and objective criteria in decision-making, that are effective, inter alia, in preventing corruption. Such systems, which may take into account appropriate threshold values in their application, shall address, inter alia:
(a) The public distribution of information relating to procurement procedures and contracts, including information on invitations to tender and relevant or pertinent information on the award of contracts, allowing potentialtenderers sufficient time to prepare and submit their tenders;
(b) The establishment, in advance, of conditions for participation, including selection and award criteria and tendering rules, and their publication;
(c) The use of objective and predetermined criteria for public procurement decisions, in order to facilitate the subsequent verification of the correct application of the rules or procedures;
(d) An effective system of domestic review, including an effective system of appeal, to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed;
(e) Where appropriate, measures to regulate matters regarding personnel responsible for procurement, such as declaration of interest in particular public procurements, screening procedures and training requirements.
(2) [...]
(3) [...]."
See for Article 9 (1) 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. 105 ff. of the Travaux Préparatoires; for Article 9 (2) of the United Nations Convention against Corruption click here. See, furthermore, Y. Marique, 'Article 9: Public Procurement and Management of Public Finance' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 91 - 105.
3. EU's Transparency Principle in Competitive Award Procedures
For a discussion of the possibility to 'integrate' EU's transparency principle in competitive award procedures into the pan-European general principles on competitive award procedures see U. Stelkens, 'Vers la reconnaissance des principes généraus paneuropéens du droit administratif dans l'Euope des 47?', in J.-B. Auby and J. Dutheil de la Rochère (eds.), Traité de droit administratif européen (2nd edition 2014), pp. 713 – 740 (pp. 734 ff.)
a) Transparency principle in public procurement
b) Transparency principle and awarding gambling licences
c) Transparency principle and privatisation procedures
a) Transparency principle in public procurement
"59 However, the fact that such a contract does not fall within the scope of Directive 93/38 does not preclude the Court from helping the national court which has sent it a series of questions for a preliminary ruling. To that end, the Court may take into consideration other factors in making an interpretation which may assist the determination of the main proceedings.
60 In that regard, it should be borne in mind that, notwithstanding the fact that, as Community law stands at present, such contracts are excluded from the scope of Directive 93/38, the contracting entities concluding them are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular.
61 As the Court held in Case C-275/98 Unitron Scandinavia and 3-S [1999] ECR I-8291, paragraph 31, that principle implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with.
62 That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.
63 It is for the national court to rule on the question whether that obligation was complied with in the case in the main proceedings and also to assess the materiality of the evidence produced to that effect."
ECJ, judgement SAG ELV Slovensko and Others (C-599/10) 29 March 2012
"25. With regard to Article 2 of Directive 2004/18, it must be borne in mind that the principal objectives of the European Union rules in the field of public procurement include that of ensuring the free movement of services and the opening-up to undistorted competition in all the Member States. In order to pursue that twofold objective, European Union law applies, inter alia, the principle of equal treatment of tenderers and the obligation of transparency resulting therefrom [...]. The obligation of transparency, for its part, is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority [...]. As regards the award of contracts, Article 2 of Directive 2004/18 requires contracting authorities to comply with the same principles and obligations."
ECJ, judgement ANAS (C-545/21) 8 June 2023
"31. The role of the European Union is therefore to finance, through its funds, only actions conducted in complete conformity, inter alia, with the principles and rules on the award of public contracts [...], in particular the principle of equal treatment of tenderers and the principle of transparency, guaranteed in Article 2 of Directive 2004/18.
32. The principle of equal treatment of tenderers requires economic operators interested in a public contract to be afforded equality of opportunity when formulating their tenders, to be made aware of the exact constraints of the procedure and to be in fact assured that all tenderers are subject to the same conditions [...]. Furthermore, tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority
33. The principle of transparency is essentially intended to preclude any risk of favouritism or arbitrariness on the part of the contracting authority [...]..
See, furthermore,
- the compilation of 'legal principles' underlying the EU public procurment regulation by C. H. Bovis. 'Public Procurement Regulation' in H. C. H. Hofmann, G. C. Rowe and A. H. Türk (eds.), Specialized Administrative Law of the European Union, pp. 476 - 508 (pp. 483 ff.)
- Commission interpretative Communication (2006/C 179/02) on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives: It formulates 'basic standards' on advertising, the contract award and judicial protection for contracts 'beyond' the procurement directives. This communcation has been considered not to contain "for the award of public contracts which go beyond the obligations under Community law as it currently stands" by the General Court, judgement Germany v. Commission (T-258/06) 20 March 2010, para. 60 ff.
- the Chapter on 'Competitive award procedures' in Book IV (Article IV-9 - IV- 19) of the ReNEUAL Model Rules on EU Administrative Procedure which builds on the aforementioned Commission Communication (2006/C 179/02).
b) Transparency principle and awarding gambling licences
ECJ, judgement Commission v. Italy (C-260/04) 13 September 2007:
"20. As the Commission rightly observed, the Italian Government has not denied, either during the pre-litigation procedure or in the course of these proceedings, that the award of licences for horse-race betting operations in Italy constitutes a public service concession. That classification was accepted by the Court in Placanica and Others (C‑338/04, C‑359/04 and C‑360/04 [2007] ECR I-0000), in which it interprets Articles 43 and 49 EC in relation to the same national legislation.
21. It is common ground that public service concessions are excluded from the scope of Directive 92/50 [...].
22. The Court has held that, notwithstanding the fact that public service concession contracts are, as Community law stands at present, excluded from the scope of Directive 92/50, the public authorities concluding them are, none the less, bound to comply with the fundamental rules of the EC Treaty, in general, and the principle of non-discrimination on the grounds of nationality, in particular [...].
23.The Court then stated that the provisions of the Treaty applying to public service concessions, in particular Articles 43 and 49 EC, and the prohibition of discrimination on grounds of nationality are specific expressions of the principle of equal treatment [...].
24. In that regard, the principles of equal treatment and non-discrimination on grounds of nationality imply, in particular, a duty of transparency which enables the concession-granting public authority to ensure that those principles are complied with. That obligation of transparency which is imposed on the public authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the service concession to be opened up to competition and the impartiality of procurement procedures to be reviewed [...].
25. In the present case, it must be observed that the complete failure to invite competing bids for the purposes of granting licences for horse-race betting operations does not accord with Articles 43 and 49 EC, and, in particular, infringes the general principle of transparency and the obligation to ensure a sufficient degree of advertising. The renewal of the 329 old licences without a call for tenders precludes the opening up to competition of the licences and review of the impartiality of the procurement procedures."
c) Transparency principle and privatisation procedures
ECJ, judgement Club Hotel Loutraki and Others (C-145/08 and C-149/08) 6 May 2010
"59. The transfer of shares to a tenderer in the context of a privatisation of a public undertaking does not fall within the scope of the directives on public contracts.
60. Moreover, that is rightly pointed out in point 66 of the Green Paper on public-private partnerships and Community law on public contracts and concessions (COM(2004) 327 final).
61. In point 69 of its abovementioned Green Paper on public-private partnerships, the Commission points out that it is necessary to ensure that such a capital transaction does not in reality conceal the award to a private partner of contracts which might be termed public contracts or concessions. Nevertheless, in the present case, there is nothing in the documents to cast doubt on the nature of the transaction at issue in the main proceedings, as categorised by the national court.
62. Having regard to the foregoing considerations, the conclusion must be that a mixed contract of which the main object is the acquisition by an undertaking of 49% of the capital of a public undertaking and the ancillary object, indivisibly linked with that main object, is the supply of services and the performance of works does not, as a whole, fall within the scope of the directives on public contracts.
63. That conclusion does not preclude the fact that such a contract must observe the basic rules and general principles of the Treaty, in particular those on the freedom of establishment and the free movement of capital. However, there is no reason in the present case to consider the question of observance of those rules and principles, given that the result of such an examination could in no way lead to a finding that Directive 89/665 applies."
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The Pan-European General Principles on Administrative Rules and Administrative Rulemaking
(compiled by Ulrich Stelkens)
II. Rulemaking Powers of the Executive and their Limits
III. Administrative Rulemaking Procedures
IV. Administrative Rules and Judicial Review
I. Delimitation of the Scope of the Pan-European General Principles on Administrative Rules and Administrative Rulemaking
1. Definition of 'administrative rules' and 'administrative rulemaking procedures'
2. Exclusion of the grey area between individual decisions and general applicable rules
3. Delimitation difficulties with regard to the substantive side of administrative rulemaking
1. Definition of 'administrative rules' and 'administrative rulemaking procedures'
The following definitions correspond with the concept of Article II-2 (1) of the ReNEUAL Model Rules on EU Administrative Procedure.
'Administrative rules' are legally binding non-legislative acts of general application. Whether an act of general application is legally binding depends on its ability to create obligations and rights with the same "force of law" as a law enacted by Parliament (and thus does not merely have the character of a 'soft law').
'Administrative rulemaking procedures' are procedures leading to the establishment, amendment and repeal of legally binding non-legislative acts of general application. This definition
- excludes rules of general application enacted by Parliament (parliamentary acts, laws)
- includes executive rules enacted by government and/or the head of state even if directly based on the constitution (règlements autonomes). Normally, they are considered as ‘administrative rulemaking’; however, there may be grey zones (e.g. in the case of décret-lois or regulations which have to be approved by Parliament, etc.)
- includes municipal statutes (bylaws), however the question if local self-government does also embrace local self-regulation by the municipal council is covered by Article 3 (1) of the European Charter of Local Self-Government (on the pan-European general principles on local self-government click here)
2. Exclusion of the grey area between individual decisions and general applicable rules
For reasons of simplification and clarity administrative decisions in the grey area between individual decisions and general applicable rules should not be regarded as 'administrative rules' in the sense of the above definition.
This excludes namely administrative decisions which are neither individual nor regulatory in the sense of Art. 11 (3) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration from the scope of the pan-European general principles on administrative rules and administrative rulemaking. Examples would be traffic regulation by traffic signs, temporary and localised security measures (even if they are directed towards everyone) and the terms of use of a specific public facility (e.g. the regulation for the use of a particular public park).
Above all this excludes 'spatial planning decisions' from the scope of the pan-European general principles on administrative rules and administrative rulemaking even if they are enacted formally as, e. g., a regulation or a bylaw (municipal statute) and even if the procedures leading to these decisions may be considered as a sub-type of 'administrative rulemaking procedures' in many or most countries. 'Spatial planning decisions' are decisions of a public authority that harmonise, expand or restrict the possibilities of using specific plots of land located in the planning area and thereby have an impact on the rights and interests of property owners, authorised users or neighbouring residents.
Cf. the different approaches to the topic of "public participation in the preparation of legislative and administrative acts" at the "7th Colloquy on European Law" in Bari (3–5 October 1976) organized by the CoE; its proceedings are published in CoE (ed.), Public participation in the preparation of legislative and administrative acts (1977).
'Spatial planning decisions' are generally subject to a special (procedural) regime which should not be easily equated with either the 'general' procedural regime applicable to administrative rulemaking or the 'general' procedural regime applicable to individual decisions. For the pan-European general principles on spatial planning click here.
3. Delimitation difficulties with regard to the substantive side of administrative rulemaking
To some extent it may be difficult to distinguish between issues which are specific to administrative rulemaking and general issues of 'good legislation' which do not involve specific features of administrative rules and administrative rulemaking.
- The question of foreseeability, stability and non-retroactivity of laws (cf. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016, para 60 and 62) is relevant to all 'laws' in a substantive sense. These principles are therefore also applicable to Parliamentary statutes. Thus, this is more a topic of constitutional law than of administrative law and a general question of legality of administration (for the pan-European general principles of legality of administration click here).
- The question of public liability for administrative rulemaking is covered by Recommendation No. R (84)15 of the Committee of Ministers to member states relating to public liability. Its scope of application explicitly encompasses liability for "normative acts in the exercice of regulatory authority" (cf. Appendix – Scope and definitions No. 4 lit a) and para. 12 of the Explanatory memorandum (p. 12 of the Final Activity Report of the CDCJ on Public Liability (CM(84)155-add1). This issue shall be dealt with together with the other pan-European general principles on public liability (click here).
Finally, the scope of the pan-European general principles on discretion do not cover the discretion to which each administrative rule maker is entitled when enacting rules of general application (for the pan-European general principles on discretion click here). Limiting and "framing" the executive's discretion in deciding which generally applicable rules to adopt is thus an issue addressed by the pan-European general principles on administrative rules and administrative rulemaking. They deal with it by submitting administrative rules to the supremacy of the legislature (infra II 1) and by providing procedural rules (infra III).
II. Rulemaking Powers of the Executive and their Limits
1. Supremacy of the Legislature
2. Constraining the executive to its own rules
1. Supremacy of the Legislature
Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016, para. 49:
"A. Legality
[...]
4. Law-making powers of the executiveIs the supremacy of the legislature ensured?
i. Are general and abstract rules included in an Act of Parliament or a regulation based on that Act, save for limited exceptions provided for in the Constitution?
ii. What are these exceptions? Are they limited in time? Are they controlled by Parliament and the judiciary? Is there an effective remedy against abuse?
iii. When legislative power is delegated by Parliament to the executive, are the objectives, contents, and scope of the delegation of power explicitly defined in a legislative act?
49. Unlimited powers of the executive are, de jure or de facto, a central feature of absolutist and dictatorial systems. Modern constitutionalism has been built against such systems and therefore ensures supremacy of the legislature.29"
Footnote 29 refers to ECtHR [Plenary], The Sunday Times v. the United Kingdom (No. 1) (6538/74) 26 April 1979 ECtHR, para 46 ff. – However, this is about the specifics of common law and whether common law (judge made law) can be considered as a legal basis for infringement in individual rights.
Cf. furthermore Venice Commission, Compilation of Venice Commission opinions and reports concerning separation of powers (CDL-PI(2020)012) of 8 October 2020 , pp. 10 ff.
2. Constraining the executive to its own rules
That the executive is bound by its own rules and cannot neglect them without changing them first seems to be so obvious that it is rarely really spelled out.
Cf., however, ECJ, judgement NTN Toyo Bearing v Council (133/77) 29 March 1979:
"21. The argument that Regulation No 1778/77 constitutes a measure sui generis based directly on Article 113 of the Treaty and not subject to the provisions of Regulation No 459/68 disregards the fact that the whole proceeding in question was carried out within the context of the provisions laid down by that regulation. The Council, having adopted a general regulation with a view to implementing one of the objectives laid down in Article 113 of the Treaty, cannot derogate from the rules thus laid down in applying those rules to specific cases without interfering with the legislative system of the Community and destroying the equality before the law of those to whom that law applies."
Furthermore, ECJ, judgement CIRFS and Others v. Commission (C-313/90) 24 March 1993:
"42. In that regard, the Commission has argued that the discipline [a binding rule of general application enacted by the Commission] was amended by a decision of June 1988 by which it authorized the grant of aid to a German manufacturer of synthetic fibres, Faserwerk Bottrop, for the establishment of a new unit for the production of very fine and non-woven discontinuous polypropylene and polyethylene fibres, and which was based on the finding that the unit could not supply the traditional textile and clothing sector, the only sector, in the Commission' s view, covered by the discipline. According to the Commission, that decision constituted an implied amendment of the discipline which it has subsequently had to take into account in order to comply with the principle of equal treatment. In addition, the Commission considers that CIRFS took note of that implied amendment, in particular in so far as it requested, with a view to the renewal of the discipline in 1989, that it be extended to cover high-strength filaments, that is to say filaments for industrial applications.
43. That line of argument must be rejected.
44. A measure of general application cannot be impliedly amended by an individual decision.
45. Furthermore, neither the principle of equal treatment nor that of the protection of legitimate expectations may be relied upon in order to justify the repetition of an incorrect interpretation of a measure."
III. Administrative Rulemaking Procedures
1. Procedures Leading to the Establishment, Amendment and Repeal of 'Regulatory Decisions' in the Sense of Article 11 (2) of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
Section II of Recommendation CM/Rec(2007)7 also apply to 'regulatory decisions' which consist of 'general applicable rules' taken by 'public authorities' (cf. Article 11 (2) CM/Rec(2007)7). However, when looking more closely only the following rules of this recommendation apply to 'regulatory decisions':
"Article 12- Initiation of administrative decisions
Administrative decisions can be taken by public authorities either on their own initiative or upon request from private persons"."Article 17 - Form of administrative decisions
(1) Administrative decisions shall be phrased in a simple, clear and understandable manner.
(2) [...].""Article 18 – Publication of administrative decisions
(1) Administrative decisions shall be published in order to allow those concerned by these decisions to have an exact and comprehensive knowledge of them. Publication may be through personal notification or it may be general in nature.
(2) [...]."Article 19 – Entry into force of administrative decisions
(1) Administrative decisions shall not take effect retroactively with regard to a date prior to their adoption or publication, except in legally justified circumstances.(
(2) Except in urgent cases, administrative decisions shall not be operative until they have been appropriately published."
See also the discussion of this topic the meeting report on the 4th meeting (10-12 July 2006) of the Working Party of the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para 18 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
2. (In-)Applicability of Recommendation No. R (87)16 of the Committee of Ministers to member states on administrative procedures affecting a large number of persons?
Scope and definitions following the Appendix to Recommendation No. R (87)16:
"The present recommendation applies to the protection of the rights, liberties and interests of persons in relation to non-normative administrative decisions (administrative acts) which concern a large number of persons [...]."
The Explanatory memorandum (pp. 11 ff. of the Final Activity Report of the CDCJ on Draft Recommendation on administrative procedures affecting a large number of persons (CM(87)153-add2) does not explain the exclusion of "normative administrative decsions" (cf. para. 9).
However, the procedural rules of this recommendation could (at least) partly 'fit' to rule making procedures, above all those rules regarding the participation of
- persons "whose individual rights, liberties or interests are liable to be affected by the administrative rule" ("persons of the second category" in the sense of Recommendation No. R (87)16)
- persons "who, according to national law, have the right to claim a specific collective interest that is liable to be affected" by the administrative rule ("persons of the third category" in the sense of Recommendation No. R (87)16)
See, furthermore. the Guidelines for civil participation in political decision making (adopted by the Committee of Ministers on 27 September 2017)
3. Concretisation of the pan-European general principles on administrative rulemaking by non-CoE Sources?
a) Article 8 of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) has been signed and ratified by the EU and all CoE Member States with the exception of Andorra, Liechtenstein, Monaco, San Marino and Turkey. The Aarhus Convention is thus a legally binding instrument in almost the entire "European administrative space" and can thereby also concretise the pan-European general principles of good administration. Cf. the website of UNECE for further information on the Aarhus Convention and its implementation.
"Article 8 - Public Participation During the Preparation of Executive Regulatons and/or Generally Applicable Legally Binding Normative Instruments
Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. To this end, the following steps should be taken:
(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through representative consultative bodies.
The result of the public participation shall be taken into account as far as possible.
b) Scholarly Work
Cf., e. g., Book II on Administrative Rulemaking of the ReNEUAL Model Rules on EU Administrative Procedure and the sources cited in the explanations.
Cf., furthermore, the comparative analyses of administrative rulemaking procedures in
- J.-B. Auby and T. Perroud (eds.), Droit comparé de la procédure administrative / Comparative Law of Administrative Procedure (2016), pp. 245 – 341 (Part II Titre II: "La participation à l’élaboration des règlements administratifs")
- K. M. Stack, 'Rule- Making Regimes in the Modern State' in P. Cane, H. C. H. Hofmann, E. C. Ip and Peter L. Lindseth (eds.), The Oxford Handbook of Comparative Administrative Law (2021), pp. 553 – 576
IV. Administrative Rules and Judicial Review
1. 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. Such review may be direct or by way of exception.
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."
Cf. the definition set out in Part A (2) a of Recommendation Rec(2004)20:
"By 'administrative acts ' are, inter alia, meant "legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons."
Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):
"Principle 1.a.
29. This principle mainly concerns the subject of judicial review, viz administrative acts as defined in this Recommendation. Review may take two forms. It is direct when it deals with the act contested before the court. It is by way of exception when, in proceedings concerned with an act, the tribunal reviews another act connected with it (for instance, when the tribunal reviews the lawfulness of the normative act on which the decision challenged is based). It should be noted that if an administrative act cannot be referred direct to a tribunal (as is the case with normative acts in several legal systems), the state should ensure that the act can be reviewed by way of exception."
See on the distinction between direct and indirect review of administrative rules from a comparative perspective M. Eliantonio and D. Dragos (eds.), Indirect Judicial Review in Administrative Law - Legality vs Legal Certainty in Europe (2022)
Click here for information on the genesis of Recommendation Rec(2004)20
2. Article 22 (1) Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
Section III of Recommendation CM/Rec(2007)7 also apply to 'regulatory decisions' which consist of 'general applicable rules' taken by ‘public authorities' (cf. Article 11 (2) Recommendation CM/Rec(2007)7).
"Article 22 - Appeals against administrative decisions
(1) Private persons shall be entitled to seek, directly or by way of exception, a judicial review of an administrative decision which directly affects their rights and interests.
(2) [...]."
"Private persons" are defined in Article 1 (3) of Recommendation CM/Rec(2007)7 as "individuals and legal persons under private law who are the subject of activities by public authorities" - see on the discussion of Article 20 the meeting report on the 4th meeting (10-12 July 2006) of the Working Party oft the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para. 43 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here
Article 22 (1) of Recommendation CM/Rec(2007)7, thus, clearly favours the possibility of a direct review of 'regulatory administrative decisions' upon appeal by the persons which are directly affected by the 'regulatory administrative decisions' in their rights and interests.
← back
The Pan-European General Principles on Local Self-Government
(compiled by Ulrich Stelkens)
I. European Charter on Local Self-Government (ETS. No. 122)
III. Recommendations of the Committee of Ministers to Member States on Local Self-Government
I. European Charter on Local Self-Government (ETS. No. 122)
- Opening for signature: 15 September 1985
- Entry into force: 1 September 1988
- The Charter is signed and ratified by all 46 Member States of the CoE
Summary of the CoE's Treaty office: "The Charter commits the Parties to applying basic rules guaranteeing the political, administrative and financial independence of local authorities. It provides that the principle of local self-government shall be recognised in domestic legislation and, where practicable, in the constitution. Local authorities are to be elected in universal suffrage.
Local authorities, acting within the limits of the law, are to be able to regulate and manage public affairs under their own responsibility in the interests of the local population. Consequently, the Charter considers that public responsibilities should be exercised preferably by the authorities closest to the citizens, the higher level being considered only when the co-ordination or discharge of duties is impossible or less efficient at the level immediately below.
To this end, it sets out the principles concerning the protection of local authority boundaries, the existence of adequate administrative structures and resources for the tasks of local authorities, the conditions under which responsibilities at local level are exercised, administrative supervision of local authorities' activities, financial resources of local authorities and legal protection of local self-government.
The principles of local self-government contained in the Charter apply to all the categories of local authorities. Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among a "hard core".
Thus, the Charter follows an à-la-carte-system
See, furthermore,
- CLRAE, Comparative analysis on the implementation of the European Charter of Local Self-Government in 47 member States on the basis of the recommendations on local and regional democracy in member States adopted by the Congress (CG32(2017)22final) of 28 March 2017 (Rapporteurs X Cadoret and K. van Overmeire) for the discussion and the context of this report click here
- CLRAE, Recurring issues based on assessments resulting from Congress monitoring and election observation missions (reference period 2010-2016) (CG32(2017)19final) of 28 March 2017 (Rapporteurs S. Dickson and L Verbeek) for the discussion and the context of this report click here
Bibliography:
- G. Boggero, Constitutional Principles of Local Self-Government in Europe (2017);
- F. Durand, ‘Le 30e anniversaire de la Charte européenne de l’autonomie locale’, (2015) AJDA, pp. 2312–320;
- R. Hertzog, ‘La France et la charte européenne de l’autonomie locale’, (2016) AJDA, pp. 1551–559;
- C. M. G. Himsworth, The European Charter of Local Self-Government (2015);
- F.-L. Knemeyer (ed.), Die Europäische Charta der kommunalen Selbstverwaltung (1989);
- K. Meyer, Gemeindeautonomie im Wandel (2011), pp. 77 ff.;
- C. L. Popescu, ‘Les requêtes devant le Conseil de l’Europe alléguant des violations de la Charte européenne de l’autonomie locale’, (2008) AJDA, pp. 2429–31;
- B. Schaffarzik, ‘Congress of Local and Regional Authorities’ in S. Schmahl and M. Breuer (eds.), The Council of Europe—Its Law and Policies (2017), pp. 269–295
- B. Schaffarzik, Handbuch der Europäischen Charta der kommunalen Selbstverwaltung (2002),
- M. W. Schneider, Kommunaler Einfluß in Europa (2003)
II. Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority (CETS No. 207)
- Opening for signature: 8 November 2001
- Entry into force: 1 July 2004
- The Additional Protocol is signed and ratified by 21 CoE Member States
Summary of the CoE's Treaty office: The Additional Protocol adds a new dimension to the European Charter (ETS No. 122) by providing an international legal guarantee of the right to participate in the affairs of a local authority. The right to participate in the affairs of a local authority denotes the right to seek to determine or to influence the exercise of a local authority's powers and responsibilities. Parties to this protocol are required to take legal and other measures to facilitate the exercise of and give effect to this right. The Protocol also requires measures be taken which are necessary to ensure that the ethical integrity and transparency of the exercise of local authorities’ powers and responsibilities are not jeopardised by the exercise of the right to participate..
See, furthermore,
III. Recommendations of the Committe of Ministers to Member States on Local Self-Government"The Committee of Ministers,
[...]
Having regard to the principles underlying the European Charter of Local Self-Government, in particular Article 4, paragraph 3, which provides that "public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy";
Considering that these provisions constitute a first effort to define the criteria to be followed in the implementation of the principle of subsidiarity in a text of international law;
Considering that observance of the principle of subsidiarity in member states' legal systems in its dual dimension, as a criterion for allocating powers between different levels of government and guiding them in the exercise of these powers, can only contribute to a better application of the principles contained in the European Charter of Local Self-Government;
Considering that although explicit mention is rarely made of this principle in existing national legal systems, the philosophy of subsidiarity, which favours the exercise of power at the level closest to the citizen, has already inspired numerous provisions, particularly in the member states of the Council of Europe with federal structures;
Considering that observance of the principle of subsidiarity in member states' legal systems must be accompanied by a fresh look at the situation as regards the number of levels of government and the way they work together (organisation of relations, distribution of powers, responsibilities and resources);
Stressing that the principle of subsidiarity should be implemented in conjunction with other organising and operating principles of the state, such as the principles of coherence and unity of application of public policies for the benefit of all citizens, of co-ordination and of territorial solidarity;
Considering that the effective performance of the increasingly numerous and complex tasks assigned to local and regional authorities demands the provision of adequate human and financial resources which, in some cases, are available only in organisations (territorial authorities or intermunicipal co-operation structures) of a large scale;
Believing therefore that not all local authorities of the same level are necessarily able to exercise the same powers, if only because of inequalities in terms of size or resources, and that a pragmatic and flexible approach should be adopted to overcome this obstacle;
Considering the need not only to give effect to the principle, but also to promote its application;
Reaffirming:
- the essentially political nature of local self-government, which must allow the citizen to participate more closely in the management of public affairs, and should therefore be entrusted to elected
authorities;
- that local self-government requires the clearest possible division of powers as regards both the formulation and the implementation of policies, and presupposes that the authorities entrusted with these powers have the human, legal and financial resources to exercise them;
- that the protection of the financially weaker local authorities calls for the introduction of financial equalisation measures which, depending on the circumstances and the degree of financial autonomy of the local and regional authorities, may involve vertical equalisation (from central government) and/or horizontal equalisation (among local authorities),
Recommends that the governments of the member states:
a. with regard to the division of powers:
- specify in the relevant legislation a core set of powers pertaining to each level of local and regional authorities in addition to any assumption of general competence;
- implement principles of organisation of powers designed to match powers with the characteristics (resources, size, geographical location, etc.) of the local and regional authorities;
- adopt experimental legislative and administrative measures to this effect (for example possibility for local authorities to give up certain powers and transfer them to a higher level, or, conversely, possibility for certain local authorities - in particular those of medium and large cities - to amass powers belonging to different levels of local and regional authorities; creation of single or multipurpose intermunicipal co-operation bodies; differentiation of the mandatory tasks of local authorities according to their size or other characteristics);
- introduce, where these do not already exist, permanent mechanisms involving the local and regional authorities in any new redistribution of powers, for example by formalising contacts between central government and the associations of local and regional authorities, and, in the federal states, between the governments of the federate entities and the said associations;
b. with regard to the exercise of powers, in cases, which should be reduced to the strict minimum, where powers are shared between different levels of government, develop, if necessary, a system of programme contracts for the implementation of the associated tasks, setting out the specific role and responsibilities of each level and including clauses safeguarding local self-government and monitoring compliance with this principle;
c. with regard to the promotion of the implementation of the principle of subsidiarity, set up procedures or mechanisms, of a legal or political nature, where these do not already exist, to promote the implementation of the principle of subsidiarity and to deal with any possible associated disputes;
d. apply all these provisions not only to relations between central government and local authorities, but also to relations between regional authorities - in federal states, the governments of the federate entities - and local authorities and, more generally, between all levels of local and regional authorities."
There seems to be no Explanatory memorandum to this recommendation.
2. Recommendation No. R (99)8 of the Committee of Ministers to member states on the financial liability of local elected representatives for acts or omissions in the course of their duties
- There seems to be no Explanatory memorandum to this recommendation
- Recommendation No. R (99)8 was prepared by a report by the Steering Committee on Local and Regional Democracy (CDLR) with the collaboration of Phillippe Petit (CoE (ed.), Liability of local elected representatives for acts or omissions in the course of their duties (1999))
- Changes to the draft recommendation were proposed by CLRAE Opinion 9 (1998) adopted on 3 November 1998 on the preliminary drar recommendation of the Committee of Ministers to member states on the financial (civil and accounting) liability of local elected representatives for acts or omissions in the course of their duties
3. Recommendation CM/Rec(2018)4 of the Committee of Ministers to member States on the participation of citizens in local public life
- Explanatory memorandum (CM/Rec(2018)4 of 21 March 2018)
- Recommendation CM/Rec(2018)4 'replaced' Recommendation Rec(2001 )19 of the Committee of Ministers to member states on the participation of citizens in local public life which had, for its part, 'replaced' Recommendation No. R (81)18 of the Committee of Ministers to member states concerning participation at municipal level
4. Recommendation CM/Rec(2019)3 of the Committee of Ministers to member states on supervision of local authorities’ activities
- There seems to be no Explanatory memorandum to this recommendation
5. Recommendation CM/Rec(2022)2 of the Committee of Ministers to member States on democratic accountability of elected representatives and elected bodies at local and regional level
- There seems to be no Explanatory memorandum to this recommendation
Introduction (p. 3): "This document is a compilation of extracts taken from opinions adopted by the Venice Commission on issues concerning constitutional and legal provisions for the protection of local self-government. The aim of this compilation is to give an overview of the Venice Commission findings and recommendations in this field. The present document does not cover issues related to the states’ structure, unitary/federal states, nor special decentralised or local forms of government, such as territorial autonomy.
The compilation is intended to serve as a source of reference for drafters of constitutions and legislation, researchers, as well as for the Venice Commission’s members, who are requested to prepare opinions and reports on local self-government. When referring to elements contained in this compilation, please cite the original document but not the compilation as such."
Structure: (I.) Constitutional guarantees for local self-government; (II) Scope of local self-government. Powers of local authorities; (III.) Election versus appointment of local self-government bodies; (IV.) Accountability. Supervision of local self-government bodies; (V.) Property rights; (VI.) Equalisation /solidarity mechanisms; (VII.) Protection of local authority boundaries. Creation/abolition/modification of local selfgovernment entities; (VIII). Local authorities' right to associate
V. Handbook on public ethics at local level prepared by the Steering Committee on Local and Regional Democracy (CDLR) - adopted in 2005 and its Abridged Version
The handbook is a collection of "best practice on the status of local elected representatives identified by the Steering Committee on Local and Regional Democracy (CDLR).relating to the status and duties of local elected representatives (sometimes misleadingly named 'local officials')
VI. Council of Europe Conference of Ministers responsible for local and regional government. Valencia Declaration on a Council of Europe Strategy for Innovation and Good Governance at Local Level (15-16 October 2007)
"Annex I - Strategy on innovation and good governance at local level
[...]
I. Scope
Good governance is a requirement at all levels of public administration. At local level it is of fundamental importance because local government is closest to citizens and provides them with essential services and it is at this level that they can most readily feel ownership of public action.
II. Aims and Objective
The aim of the Strategy is to mobilise and stimulate action by national and local stakeholders so that citizens in all European countries benefit from good democratic governance at the local level, through the continuously improving quality of local public services, engagement of the population and policies that meet their legitimate expectations.
In pursuit of this aim the Strategy has the following three objectives:
1. Citizens are placed at the heart of all democratic institutions and processes;
2. Local authorities constantly improve their governance in accordance with the 12 Principles set out below;
3. States (or regional authorities, depending on member states’ institutional structure) create and maintain the institutional preconditions for the improvement of governance at local level, building on their existing commitments in accordance with the European Charter of Local Self-Government and other Council of Europe standards.
III. The 12 Principles of Good Democratic Governance
[...] The Principles of Good Democratic Governance at local level are:
1. Fair Conduct of Elections, Representation and Participation, to ensure real possibilities for all citizens to have their say in local public affairs;
2. Responsiveness, to ensure that the local authority meets the legitimate expectations and needs of citizens;
3. Efficiency and Effectiveness, to ensure that objectives are met while making the best use of resources;
4. Openness and Transparency, to ensure public access to information and facilitate understanding of how local public affairs are conducted;5. Rule of Law, to ensure fairness, impartiality and predictability;
6. Ethical Conduct, to ensure that the public interest is put before private ones;
7. Competence and Capacity, to ensure that local representatives and officials are well able to carry out their duties;
8. Innovation and Openness to Change, to ensure that benefit is derived from new solutions and good practices;
9. Sustainability and Long-term Orientation, to take the interests of future generations into account;
10. Sound Financial Management, to ensure prudent and productive use of public funds;
11. Human rights, Cultural Diversity and Social Cohesion, to ensure that all citizens are protected and respected and that no one is either discriminated against or excluded;
12. Accountability, to ensure that local representatives and officials take responsibility and are held responsible for their actions.
VII. The Pan-European General Principles on Transfrontier Cooperation between Local and Regional Communities
The Pan-European General Principles on Digitalisation of Public Administration, E-Government and (Semi-) Automated Administrative Decision Making Processes
(compiled by Ulrich Stelkens)
I. The Pan-European General Principles on Digitalisation of Public Administration and E-Government
II. Pan-European General Principles on (Semi-) Automated Administrative Decision Making Processes
I. The Pan-European General Principles on Digitalisation of Public Administration and E-Government
The pan-European general principles on digitalisation of public administration and e-Government focus on the question if there is a pan-European general principle to deliver digital public services - and a corresponding right to "good digital administration".
- The pan-European general principles on data protection (for these principles click here) may therefore limit the possibilities of digitalisation of administration. However, data protection law should not be equated with rules for the implementation of e-Government and the promotion of public digital services in the interest of the citizens (the 'users' of public digital services).
- The pan-European general principles on transparency (for these principles click here) can be closely linked to the pan-European general principles on digitalisation of public administration and e-Government: Internet and electronic communication can facilitate the dissemination of (official) documents and access to data and can therefore be used to create transparency through an active communication policy and an open government strategy. Digitalisation can thus be tool instrument to promote transparency, but creating transparency is only one 'public service' that can be provided by electronic government.
- The pan-European general principles on transnational mutual assistance and participation in administrative procedures and transfrontier cooperation (for these principles click here) are factually closely connected to the pan-European general principles on digitalisation of public administration and e-Government: Internet and electronic communication can facilitate transnational administrative action (like the dissemination of (official) documents and the access to data in general) and may therefore be used for this purpose. Digitalisation may, thus, be a tool to promote transnational mutual assistance, participation and cooperation but this is only one 'public service' that can be delivered by the means of electronic government.
1. Digitalisation of the administration in the work of the CoE
1. Digitalisation of the administration in the work of the CoE
b) Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
a) Introduction of the Explanatory report to Resolution (74)29 on the protection of the privacy of individuals vis-à-vis electronic data banks in the public sector
Explanatory report (drafted by the European Committee on Legal Co-operation (CCJ) – Addendum to the report on the 21st meeting of the CCJ (CM(74)171-add) 29 July 1974):
"Introduction
1. It is hardly necessary to emphasise how important it is that every individual in modern society is guaranteed satisfactory protection with regard to the electronic
processing of data concerning him.
In the early 1960s when computers made their first appearance as administrative aids, the need to protect citizens against possible risks for their privacy did not
appear to be urgent. Computers were expensive and their use was limited to a small number of public services.
In recent years, however, the need to provide adequate safeguards for the individual has become more acute as a result of two parallel and interdependent processes : the growing complexity of the social fabric and the headway made by information technology.
2. In all fields of human activity, electronic data processing has been introduced as an efficient and powerful instrument to solve complex problems. In certain fields it
has already become virtually indispensable.
The advantages derived from the use of computers in the public sector are very obvious. They can help to rationalise administrative work. In relieving the administration from tedious tasks such as copying, filing, keeping records up to date, issuing certificates, documentation, etc information technology raises administrative productivity.
Information technology improves the capacity of every administration to store, process and utilise data on which its decisions are to be based. It enables, moreover, several administrations, at different levels (central, regional,lecal), to pool their data.
Thus, automation, can raise the quality of public service notwithstanding the constantly growing volume, diversity and complexity of the tasks of the administration.
3. The main applications of information technology by the public administration will vary considerably from one state to another as a result of certain considerations such as the volume of the operations, their cost, administrative traditions, technical infrastructure, etc. Among the most common uses of computer technology by the European states are to be mentioned: statistics, postal accounts, social security, personnel management, financial administration, health services, land registers, criminal records, business firms’ registers, motor vehicle administration and internal revenue.
Information stored in population registers, which are now increasingly being computerised and which deserve special attention because they respond to the needs of all branches and levels of the public administration is a typical example of information used for more than one purpose.
4. The citizens who are seeing the gradual introduction of computers in public administration will form an opinion of its advantages or inconveniences. They will appreciate the speed, clarity and logic with which information is handled in administrative processes affecting them. But at times they may also be anxious about what may appear to them to be an increase in the power of the authorities as a result of computerised administration. First, there are fears that the use of computers will allow several administrations to exchange among themselves various kinds of information on the same persons and that it will be possible in this way for the state to compile and keep up to date a detailed "profile" on individual citizens. In fact, it is by no means a simple matter to build up such profiles; a number of technical difficulties stand in the way. Nevertheless, this potential capacity of modern public administration has awakened in some people a fear that their privacy is losing ground.
5. Furthermore, the possibility that the same information may be used for more than one purpose a s a result of several parts of the administration being able to obtain access to it has led to doubts about the real purposes for which the information is required and about the confidentiality aly of the information stored."
b) Parliamentary Assembly Recommendation 1617 (2003) on Civil Service Reform in Europe
"2. The Assembly invites Council of Europe member states to engage, where necessary, on reforms to modernise and streamline public administrations, in particular by introducing e-administration so as to give citizens easier access to information, eliminating obsolete or inefficient services, and introducing effective and clear administrative procedures that define the boundaries of unlawful behaviour and ensure compliance with principles of ethics. Such an approach would render European public administrations in need thereof more transparent, efficient and responsive both to changes in citizens’ concerns and to an evolving international environment characterised by rapid technological progress and growing economic interdependence.
[...]."
The Reply from the Committee of Ministers adopted at the 864th meeting of the Ministers’ Deputies (4 December 2003) focusses on civil service legislation and does not deal with reform of administrative organisation.
c) Recommendation Rec(2004)15 of the Committee of Ministers to member states on electronic governance ("e-governance")
"The Committee of Ministers [...];
Emphasising the importance of maintaining and enhancing democratic institutions and processes in the context of the new opportunities and challenges arising from the rapid emergence of the Information Society;
Convinced of the continued and essential leadership role that national, regional and local public authorities must play in identifying and responding to these opportunities and challenges, by implementing comprehensive e‑governance strategies;
Acknowledging the range of e-governance initiatives in member states at the national, regional and local levels;
Noting that the development and implementation of these e-governance initiatives should serve to further strengthen human rights, particularly the right of everyone to express, seek, receive and impart information and ideas;
Convinced of the potential of these initiatives to improve the relationship between public authorities and other stakeholders in civil society, enhance the quality of public services and improve the efficiency of public authorities;
Aware of the potential risks related, in particular, to the abuse of personal data, lack of access to information and communication technologies (ICT) and inadequate e-literacy skills among certain sectors of the population;
Noting that e-governance is about democratic governance and not about purely technical issues, and convinced therefore that the full potential of e-governance will be harnessed only if ICT are introduced alongside changes in the structures, processes and ways that the work of public authorities is organised;
Stressing that the development and dissemination of common guidelines for good e-governance practice are essential to the sharing of expert knowledge across borders, learning from and building on the successes and difficulties of partners, and avoiding duplication of work and the inefficient use of resources;
Taking into account, and building upon the previous work by the Council of Europe and other inter-governmental organisations, particularly that listed in the Explanatory Memorandum to this Recommendation,
Recommends that member states:
1. Review their e-governance polices, legislation and practice in the light of the guidelines appended to this Recommendation.
2. Work together with the appropriate international, national, regional and local stakeholders, to develop a shared vision of e-governance that upholds human rights, democracy and the rule of law by:
– strengthening democratic institutions at all levels and making them more accessible, transparent, accountable and responsive;
– providing opportunities for all to participate in the process of decision-making, thereby contributing to a more dynamic, inclusive democracy;
– improving public administration and services by making them more accessible, user-centred, transparent, efficient and cost-effective, thus contributing to the economic and cultural vitality of society.
3. Develop an e-governance strategy which:
– fully complies with the principles and domestic organisation of democratic government;
– enhances the effectiveness of democratic processes;
– widens the choices available to users for communicating and transacting with government by providing additional channels;
– is based on an inclusive and non-discriminatory approach;
– involves users in strategic choices and respects their needs and priorities;
– ensures transparency and sustainability;
– promotes a coherent and coordinated approach between the different spheres and tiers of government;
– provides a framework for partnership between the public authorities, the private sector and other organisations of civil society;
– maintains and enhances citizens’ confidence in democratic processes, public authorities and public services, including through protecting personal data;
– includes solid risk-assessment and risk-management measures;
– enables and improves access to appropriate ICT infrastructure and services that are simple and fast to use;
– ensures system availability, security, integrity and interoperability;
– provides for an ICT policy based on technology neutrality, open standards and on the assessment of possibilities offered by different software models, including open source models;
– contains provisions for broad-based education and training as well as appropriate public information measures;
– takes into account relevant international developments;
– incorporates mechanisms for ongoing evaluation and evolution.
4. Seek to apply the principles in this Recommendation to other organisations involved in the delivery of public services.
5. Disseminate widely this Recommendation and its appendix, where appropriate accompanied by a translation.
Tasks the Secretariat to include, where appropriate, e-governance aspects into, inter alia, the Council of Europe’s democracy projects and into the work of its field offices.
Decides to reconsider the issue of e-governance two years after the adoption of this Recommendation.
The Appendix to Recommendation Rec(2004)15 describes its "purpose" as follows:
"The purpose of this Recommendation is to assist member states in developing strategies for e-governance that make effective use of information and communication technologies (ICT) in the relationships between public authorities and civil society, as well as those between public authorities, and in the functioning of public authorities in the framework of democratic processes and the provision of public services.
In this Recommendation, 'users' refers to individuals or any organisation, including the private sector and public authorities, using or wishing to use e-governance services."
Then, the Appendix to Recommendation Rec(2004)15 describes guidelines on (I.) "E-democracy" (guideline 1 - 3), (II.) "Public e-services" (guideline 5 - 6), and (III.) "E--governance strategies", subdivided in "Key characteristics of e-governance strategies" (guidelines 7 - 15), "Guiding principles for implementation" (guidelines 16 - 22), and "Enabling conditions for e-governance strategies" (guidelines 23 - 26).
The Explanatory memorandum (CM(2004)210-Add) 17 November 2004) explains the context of this recommendation (para. 1 ff.), the different 'bullets' of the preamble (para. 20 ff.) and, finally, the different "guidelines" also by referring to 'best practices' in some CoE member states.
d) Further work of the CoE on eGovernment instruments and their potential to foster good administration and human rights
"Executive Summary
[...].
The report highlights some of the promising features of blockchain technology and various types of implementation, from cryptocurrencies, to smart contracts, to distributed autonomous organizations (DAOs) and non-fungible tokens (NFTs). It also presents some of the important limitations that may impede fundamental rights
As the technology has numerous applications including democratic tools and support for human rights, the report presents different use opportunities in line with the Council of Europe’s global democratic agenda to advance democratic functions and ensure accountability and transparency, from digital identity and information self-determination, to supporting refugees and vulnerable populations, responsible supply chain, immutable land titles and voting systems, as well as efficient dispute resolution mechanisms.
Finally, the report discusses some of the legal issues that may arise from the use of this technology, with emphasis on matters that may welcome leadership from the Council of Europe in regards to the protection of anonymity and privacy rights; the legal status of automated contracts and decentralized autonomous organizations; and the conflict of law and jurisdiction due to the distributed and global nature. In the appendix, the report includes a table presenting the interface of blockchain technologies with the European Convention on Human Rights."
See furthermore the overview on the work of the CoE on Artificial Intelligence at the website on "Council of Europe's Work in progress"
2. Concretisation of the pan-European general principles on digitalisation of the administration by non-CoE Sources?
a) EU's Benchmarks for "good digital administration"
b) Digitalisation of the administration in the work of the OECD
a) EU's Benchmarks for "good digital administration".
b) Digitalisation of the administration in the work of the OECD
OECD Recommendation on Digital Government strategies (adopted by the OECD Council on 15 July 2014); cf. the explanation of the approach of this recommendation in the 'foreword' to the recommendation:
"This new digital governance context and the multiplication of technological options raise challenges and risks for which governments must prepare. The new possibilities, and the changing societal expectations that arise from them, require governments to re-examine their governance approaches and strategies.
Failures to do so could mean an accelerated loss of trust in government and a perception that it is out of touch with societal and technological trends. But are governments really equipped to use digital technology to work more closely with citizens and businesses, particularly in a context of continuous budgetary
constraints?
The challenge is not to introduce digital technologies into public administrations; it is to integrate their use into public sector modernisation efforts. Public sector capacities, workflows, business processes, operations, methodologies and frameworks need to be adapted to the rapidly evolving dynamics and relations between the stakeholders that are already enabled – and in many instances empowered – by the digital environment. Setting up more open approaches to policymaking and public service delivery requires governments to re-organise themselves around user expectations, needs and associated requirements, rather than their own internal logic and needs. To this end, digital government strategies need to become firmly embedded in mainstream modernisation policies and service design so that the relevant stakeholders outside of government are included and feel ownership for the final outcomes of major policy reforms.
This shift to use technology to shape public governance outcomes, and not simply to support government processes, requires coherent and strategic planning of policies for digital technologies use in all areas and at all levels of the administration. However, governments remain organised around units, each with clear
responsibilities and processes, as well as problems to integrate their ways of working. This is a major challenge to creating broad political commitment and ownership for integration of digital government into overall public sector reform strategies. Governments need to ensure that their own capacities, norms,
structures and risk management models are aligned with their strategic digital government vision, and vice-versa. It is imperative that governments also understand the level of organisational maturity of the public sector in relation to project management methods and approaches, and are able to achieve appropriate levels of maturity in relation to their needs and ambitions, to optimise the impact and results of digital government investments."
OECD Digital Government Toolkit based on 12 principles, namely
1. Openness, transparency and inclusiveness
2. Engagement and participation in policymaking and policy making and service delivery
3. Creation of a data-driven culture in the public sector
4. Protecting privacy and ensuring security
5. Leadership and political commitment
6. Coherent use of digital technology across policy areas
7. Effective organisation and governance frameworks to coordinate
8. Strengthen international cooperation with governments
9. Development of clear business cases
10. Reinforce ICT project management capabilities
11. Procurement of digital technologies
12. Legal and regulatory framework
II. Pan-European General Principles on (Semi-) Automated Administrative Decision Making Processes
"Automated data processing techniques, such as algorithms, [...] are also increasingly used in decision-making processes, that were previously entirely in the remit of human beings. Algorithms may be used to prepare human decisions or to take them immediately through automated means. In fact, boundaries between human and automated decision-making are often blurred, resulting in the notion of ‘quasi- or semi-automated decision-making'."
1. General safeguards in (semi-) automated administrative decision making processes
2. Profiling and automated administrative decisions
1. General safeguards in (semi-) automated administrative decision making processes
g) Preparatory work of the CDCJ for a new edition of the handbook "The Administration and You"
a) PACE Recommendation 2102 (2017) adopted 28 April 2017 "Technological convergence, artificial intelligence and human rights
"9. Moreover, the Assembly proposes that guidelines be drawn up on the following issues:
9.1 strengthening transparency, regulation by public authorities and operators’ accountability concerning:
9.1.1 the fact that responsibility and accountability of an act lie with the human being, no matter what the circumstances may be. References to independent decision making by artificial intelligence systems cannot exempt the creators, owners and managers of these systems from accountability for human rights violations committed with the use of these systems, even in cases where an act causing damage was not directly ordered by a responsible human commander or operator;
9.1.2 automatic processing operations aimed at collecting, handling and using personal data;
9.1.3 informing the public about the value of the data they generate, consent to the use of those data and the length of time they are to be stored;
9.1.4 informing people about the processing of personal data originating from them and about the mathematical and statistical methods making profiling possible;
9.1.5 the design and use of persuasion software and of information and communication technology (ICT) or artificial intelligence algorithms, that must fully respect the dignity and human rights of all users, especially the most vulnerable, such as elderly people and people with disabilities;
9.2 a common framework of standards to be complied with when a court uses artificial intelligence;
9.3 the need for any machine, any robot or any artificial intelligence artefact to remain under human control; insofar as the machine in question is intelligent solely through its software, any power it is given must be able to be withdrawn from it;
9.4 the recognition of new rights in terms of respect for private and family life, the ability to refuse to be subjected to profiling, to have one’s location tracked, to be manipulated or influenced by a "coach" and the right to have the opportunity, in the context of care and assistance provided to elderly people and people with disabilities, to choose to have contact with a human being rather than a robot."Cf. also the reply of the Committee of Ministers (CM/AS(2017)Rec2102-final) 17 October 2017
b) Committee of Experts on Internet Intermediaries (MSI-NeT) of the CoE, Study on the Human Rights Dimensions of Automated Data Processing Techniques (in Particular Algorithms) and Possible Regulatory Implications (MSI-NET(2016)06 rev3 FINAL) 6 October 2017
The report describes the carasteristics of (semi-) automated decision making (Part II), possible impacts on human rights (Part III), the regulatory implications of the use of automated processing techniques and algoritms (Part IV) and comes to the following conclusions (pp. 41 ff.):
"1. Public entities and independent non-state actors should initiate and support research that helps to better understand and respond to the human rights, ethical and legal implications of algorithmic decision-making. Therefore, they should support and engage with trans-disciplinary, problem-orientated and evidence-based research, as well as the exchange of best practices.
2. Public entities should be held responsible for the decisions they take based on algorithmic processes. The adoption of mechanisms should be encouraged that enable redress for individuals that are negatively impacted by algorithmically informed decisions. Human rights impact assessments should be conducted before making use of algorithmic decision-making in all areas of public administration.
3. Technological developments should be monitored closely and reviewed for potential negative impacts, with particular attention paid to the use of algorithmic processing techniques during elections and election campaigns. Effective responses to such negative impacts could include experimental regulatory approaches on how best to protect rights of others and guarantee regulatory goals, provided they are accompanied with systematic monitoring of their effects.
4. Public awareness and discourse are crucially important. All available means should be used to inform and engage the general public so that users are empowered to critically understand and deal with the logic and operation of algorithms. This can include but is not limited to information and media literacy campaigns. Institutions using algorithmic processes should be encouraged to provide easily accessible explanations with respect to the procedures followed by the algorithms and to how decisions are made. Industries that develop the analytical systems used in algorithmic decision-making and data collection processes have a particular responsibility to create awareness and understanding, including with respect to the possible biases that may be induced by the design and use of algorithms.
5. Certification and auditing mechanisms for automated data processing techniques such as algorithms should be developed to ensure their compliance with human rights. Public entities and non-state actors should encourage and promote the further development of human rights by design and ethical-by-design approaches and the adoption of stronger risk-assessment approaches in the development of software.
6. States should not impose a general obligation on internet intermediaries to use automated techniques to monitor information that they transmit, store or give access to, as such monitoring infringes on users’ privacy and has a chilling effect on the freedom of expression.
7. Public entities should engage with their own sector-regulators (insurance, credit reference agencies, banks, e-commerce and others) to develop specific standards and guidelines to ensure that they are able to respond to the challenges of the use of automated decision-making through algorithms and taking into account the interests of consumers and the general public.
8. Considering the complexity of the field, awareness of the general public – important as it is – will not suffice. There is an evident need for additional institutional arrangements. Therefore, public entities should initiate and support the creation of networks and spaces for all relevant stakeholders to analyse and assess different forms of algorithmic decision-making. All relevant stakeholders should engage in such an endeavour.
9. The Council of Europe as the continent’s leading human rights organisation is the appropriate venue to further explore the impacts on the effective exercise of human rights of the increasing use of automated data processing and decision-making systems (in particular algorithms) in public and private spheres. It should continue its endeavours in this regard with a view to developing appropriate standards-setting instruments for guidance to member states."
c) European Commission for the Efficiency of Justice, European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment (adopted at the 31st plenary meeting of the CEPEJ (Strasbourg, 3-4 December 2018)
The European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment defines five principles:
"1. Principle of respect of fundamental rights: ensuring that the design and implementation of artificial intelligence tools and services are compatible with fundamental rights;
2. Principle of non-discrimination: specifically preventing the development or intensification of any discrimination between individuals or groups of individuals;
3. Principle of quality and security: with regard to the processing of judicial decisions and data, using certified sources and intangible data with models conceived in a multi-disciplinary manner, in a secure technological environment;
4. Principle of transparency, impartiality and fairness: making data processing methods accessible and understandable, authorising external audits;
5. Principle "under user control": precluding a prescriptive approach and ensuring that users are informed actors and in control of their choices."
The principles as such as well as their explanation in the "in-depth study" accompanying this charter "on the use of AI in judicial systems, notably AI applications processing judicial decisions and data" shows that the principles of the European ethical Charter on the use of Artificial Intelligence in judicial systems and their environment are principles which deal with general issues of "(semi-) automated public decision making" and not (only) with issues related to "(semi-) automated decision making in judicial processes".
d) Committee of the Convention for the Protection of Individuals with regards to Processing of Personal Data (Convention 108), Guidelines on artificial intelligence and data protection (T-PD(2019)01) 25 January 2019
These Guidelines follow and build on Committee of the Convention for the Protection of Individuals with regards to Processing of Personal Data (Convention 108), Report on artificial intelligence: Artificial
Intelligence and data protection: challenges and possible remedies (T-PD(2018)09Rev) of 25 January 2019
e) Recommendation CM/Rec(2020)1 of the Committee of Ministers to member states on the human rights impacts of algorithmic systems
Summary of the Steering Committee on Media and Information Society (CM(2020)33) 18 February 2020:
"Summary
The draft recommendation of the Committee of Ministers to member States on the human rights impacts of algorithmic systems proposes a horizontal set of guidelines, directed at States and at public and private sector actors, with a view to promoting an environment of legal certainty in which both human rights and innovation can thrive. Building on existing Council of Europe standards related to the protection of human rights in contemporary societies, the guidelines cover multiple aspects of the design, development and deployment of algorithmic systems: data management, modelling and analysis, transparency, accountability and effective remedies, precautionary measures and research, innovation and public awareness.In order to ensure that positive human rights effects for individuals, communities and societies be amplified and possible adverse effects prevented or minimised, member States of the Council of Europe must act at two levels:
A) they must ensure that they themselves refrain from violating human rights through their own use, development or procurement of algorithmic systems;
B) as regulators, they must establish effective and predictable legislative, regulatory and supervisory frameworks related to algorithmic systems that prevent, detect, prohibit and remedy human rights violations, whether stemming from public or private actors.
Private sector actors, in line with the UN Guiding Principles on Business and Human Rights, have the corporate responsibility to respect the human rights of their customers and of all affected parties. These due diligence requirements exist independently of regulatory frameworks and across jurisdictions.
Algorithmic systems are used today as essential tools of everyday life, including in communication, education, healthcare, economic activities and transportation. They also play an increasing role in governance structures and the management and distribution of resources.
Due to the wide range of types and applications of algorithmic systems, the extent of their impact on human rights depends on the specific purpose for which they are used, their possible knock-on effects, functionality, accuracy, complexity and scale. A system that does not create an adverse human rights impact at individual level may, nevertheless, have a collective impact on specific groups or the population at large and generate adverse effects on human rights, democratic processes or the rule law that member States should consider.
The speed and scale of socio-technical developments require constant monitoring and adaptation of applicable governance frameworks to protect human rights effectively in a complex and global environment. A precautionary approach is therefore obligatory, not least because the growing interdependence and interlocking of multiple algorithmic systems that operate in the same environment can generate serious and often unexpected consequences."
There seems to be no Explanatory memorandum to this recommendation
f) Guidelines of the Committee of Ministers of the Council of Europe on online dispute resolution mechanisms in civil and administrative court proceedings (CM(2021)36add4-final) of 16 June 2021
"Purpose and scope
The guidelines apply to online dispute resolution (ODR) mechanisms used by courts. They provide guidance in relation to fair procedure, transparency in the use of ODR and requirements for hearings, special issues related to the ICT nature of ODR techniques and other issues not stemming from the jurisprudence of the European Court of Human Rights. They do not cover internal management of electronic case files by the courts or alternative dispute resolution (ADR) mechanisms, such as mediation and conciliation. However, member States may wish to extend their application to ADR if and where appropriate.
Definitions
For the purpose of these guidelines, the terms below have the meanings indicated:
i. Court [...]
ii. Online dispute resolution (ODR)
"Online dispute resolution (ODR)" refers to any online information technology (IT) used by a court to resolve or assist in resolving a dispute.
iii. Artificial intelligence (AI)
"Artificial intelligence (AI)" refers to a set of scientific methods, theories and techniques the aim of which is to reproduce, by a machine, the cognitive abilities of a human being.
iv. Information and communication technology (ICT)
"Information and communication technology (ICT)" refers to technology that provides access to information through telecommunications."
Some of the principles spelled out in this "guidelines" (immideatly following these definitions) deal with general issues of "(semi-) automated public decision making" and not (only) with issues related to "(semi-) automated decision making in judicial processes". This is especially true for principle
- No. 6 ("Parties should be notified when it is intended that their case will be processed with the involvement of an AI mechanism.")
- No. 14 ("Technical difficulties in the functioning of ODR should not prevent the courts, even for short periods, from examining cases and performing appropriate procedural steps.")
- No. 18 ("Sufficient reasons should be given for decisions reached using ODR or with the assistance of ODR, in particular the decisions reached with the involvement of AI mechanisms.")
- No. 20 ("Where national law allows for purely automated decisions, such decisions should be open to review before a judge.")
- No. 21 ("The design and operation of ODR mechanisms should be made transparent and explained in an intelligible manner using clear and plain language.")
- No. 25 ("ODR should be designed in such a way that all documents generated, including the final judgment and other decisions or notifications, are written in clear and plain language.")
See, furthermore, the Explanatory memorandum to this guideline.
g) Preparatory work of the CDCJ for a new edition of the handbook "The Administration and You"
"Activity proposal
1. Renew The Administration and You handbook in the light of the use of artificial intelligence (AI) and non-AI algorithmic systems.
Task
2. Expand and develop the Council of Europe handbook The Administration and You: Principles of administrative law concerning relations between individuals and public authorities, in the light of the use of artificial intelligence (AI) and non-AI algorithmic systems in administrative law. How the principles of good administration – equal treatment; transparency; access etc. could be highlighted in a user-friendly way.
Concept
3. It is assumed that algorithmic decision-making systems are contributing to better, accessible and more tailor-made public services in the best interests of the general public.
What are the most important issues for a citizen while an AI system is affecting public services? What are the questions a service provider has to think about to grant non-biased and transparent services?
4. It is necessary to examine what are the most relevant principles of good administration that are affected by algorithmic decision making. Transparency and other good administration principles are, at the same time, legal and ethical categories, but how should these principles be implemented and integrated in public services in everyday life?
5. All factors relevant to a particular administrative decision should be considered by a public authority when making its decision, with each factor given its proper weight. This could be illustrated through examples of how to ensure that algorithms are designed with this principle in mind.
6. The State has the responsibility to set the standards for algorithmic decision-making systems to ensure the respect of principles. There may be a need to define supervision in order to ensure that these standards are respected.
7. Where decision making is conducted via an internet platform, the physical location of a public authority may not be relevant. Nonetheless, the principles apply equally, irrespective of the location or whether or not the service is delivered via an internet platform or digitally. Given the specific character of online services provided by public authorities, it is particularly important that steps are taken by them to ensure that the principles in The Administration and You handbook are properly applied.
Working methods
8. Mapping different implementation activities in member States of the use of algorithmic decision-making systems and administrative support-systems in a comparative study to allow for more information on the use of AI and other algorithmic systems in administrative procedures more broadly. For example, what AI and non-AI applications are currently being used in member States and how are they used? Why are they being used and what are the potential advantages and the benefits of doing so? What are the typical or most important risks to people’s human rights, and what should people perhaps be wary of? Does a person have the right to know when AI technology is being used, are there any
differences in a person’s rights or the state’s responsibilities if an application is used?
9. On the basis of the study, as the first step, renew the handbook with the help of a group of experts, if appropriate, in relation to specific fields like health care, social services, labour or education.
10. Include an additional chapter and supplement every chapter with relevant examples.
11. Identify possible further CDCJ work related to artificial intelligence beyond this activity, which, if necessary, could/should lead to the renewal of existing legal instruments or to the development of a new legal instrument."
"B. On-going activities
[...]
Administration and Artificial Intelligence
27. CDCJ examined the concept paper on a CDCJ activity proposal in the fields of administrative law and artificial intelligence prepared and presented by Ms Kai Härmand (Estonia), as complemented by the Chair and the Vice-Chair, Mr Christoph Henrichs (Germany), the CDCJ representative to the Ad hoc Committee on Artificial Intelligence (CAHAI).
28. Work on Artificial Intelligence (AI) has increasing impact on the Council of Europe’s standards on human rights, democracy and the rule of law. Addressing the implications of this development on all domains of the work of the Council of Europe is high on the Organisation’s priorities, through CAHAI’s transversal work, or through the distinct areas of competence of the CDCJ and other committees. The CDCJ decided to retain the proposal and initiate work related to "Administration and Artificial Intelligence". The approved activity proposal, including working methods, appears in Appendix III to this report.
29. The CDCJ instructed the Secretariat to draw up draft terms of reference for a drafting group of CDCJ members and a draft workplan for implementing the activity, and to submit them to the Bureau for consideration and approval at one of its meetings of 2021 given its timeliness,
which would allow to start the work as soon as possible in 2021, taking into account that this activity should continue in 2022-2023, considering the importance of undertaking other work related to artificial intelligence.
30. CDCJ took note of the work European Commission on the Efficiency of Justice (CEPEJ), notably of its working group on cyber-justice and artificial intelligence (CEPEJ-GT-CYBERJUST). The CDCJ noted the existence of topics of mutual interest with the CEPEJ and drew attention to the possible overlap work need to be addressed. To avoid such an overlap, it instructed the Secretariat to co-ordinate with CEPEJ Secretariat to address this concern, with the support of the Bureau members if required."
To prepare the "update" of the handbook "The Administration and You", the CDCJ decided at its 97th plenary meeting to set up a limited working group of experts (CDCJ-ADMIN-AI) to proceed with the update: Report of the 97th Meeting of the CDCJ held by videoconference on 1-3 December 2021 (CDCJ (2021)34 final) of 23 February 2022, para. 20
See for the progress of this work:
h) Further work of the CoE on (semi-) automated decision making processes, Artificial Intelligence and their impact on human rights, democracy and the rule of law
See for the Work of the CoE with regard to Artificial Intelligence in general the websites on "Council of Europe and Artificial Intelligence" and especially the documents at the website on "Council of Europe's Work in progress"
See, furthermore,
-
the website of the CAHAI - Ad hoc Committee on Artificial Intelligence (2019 - 2021)
- the website of the CAI - Committee on Artificial Intelligence (since 2022)
2. Profiling and automated administrative decisions
a) Recommendation CM/Rec(2010)13 of the Committee of Ministers to member states on the protection of individuals with regard to automatic processing of personal data in the context of profiling
- Explanatory memorandum (drafted by the CDCJ (CM(2010)147-add3final) 25 November 2010)
- Recommendation CM/Rec(2010)13 was "replaced" by Recommendation CM/Rec(2021)8 of the Committee of Ministers to member States on the protection of individuals with regard to automatic processing of personal data in the context of profiling
b) Article 9 (1) (b) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) as amended by the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)
"Article 9 – Rights of the data subject
(1) Every individual shall have a right:
a) not to be subject to a decision significantly affecting him or her based solely on an automated processing of data without having his or her views taken into consideration;
b) [....]
(2) Paragraph 1.a shall not apply if the decision is authorised by a law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights, freedoms and legitimate interests."
"75. Littera a. It is essential that an individual who may be subject to a purely automated decision has the right to challenge such a decision by putting forward, in a meaningful manner, his or her point of view and arguments. In particular, the data subject should have the opportunity to substantiate the possible inaccuracy of the personal data before it is used, the irrelevance of the profile to be applied to his or her particular situation, or other factors that will have an impact on the result of the automated decision. This is notably the case where individuals are stigmatised by application of algorithmic reasoning resulting in limitation of a right or refusal of a social benefit or where they see their credit capacity evaluated by a software only. However, an individual cannot exercise this right if the automated decision is authorised by a law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights and freedoms and legitimate interests."
c) Recommendation CM/Rec(2021)8 of the Committee of Ministers to member States on the protection of individuals with regard to automatic processing of personal data in the context of profiling
- There seems to be no Explanatory memorandum to this recommendation