The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of Law – Good Administration as the Test-Case

The right to good administration as it stands today is both a general principle of EU law (hereafter GPL) and a fundamental right codified in the Charter of Fundamental Rights of the EU.
The present contribution provides the case study of good administration at the confluence of these two vectors of protection and highlights that there are instances where, even in relation to what might appear to be the same right, there are overlaps and sometimes clear differences as regards its content and level of protection according to its interpretation as a GPL or a CFR right. This study points out that the divergences stemming from the interplay of these two fundamental rights’ sources may, in certain instances, take the form of actual or potential conflicts, giving rise to inevitable “gaps” in protection. This makes the insurance of individuals’ rights dependent on the level of protection conferred by the source which is held to prevail, leading therefore to many inconsistencies and deficiencies from the standpoint of the rule of law.
Having been conducted within a context marked by the entry into force of the Lisbon Treaty which - by giving binding legal force to the CFR, added a supplementary layer to the already existing “symphony of sources” – this study is a contribution to the debate on the difficult coexistence of the multiple sources of fundamental rights in the EU legal system. The reality of this coexistence gives rise to a large number of questions: How should one order the plurality of sources of law?” How do the various layers of protection interact? What is the relation between them in case of conflict? Are there instances where the outcome of a case is likely to be different depending on the invocation of a certain source of law rather than another; in other words, are there any existing or potential “gaps” in protection? If so, how may such gaps be filled up? Which source is to be relied on in priority, is there a hierarchy among them? Which would be the impact of such a hierarchical order of review with regard to individuals’ protection? Is there any room in the EU legal order for an alternative model of review, capable of supplementing the hierarchical approach? Which alternative model would be the most suited in order to confer an adequate and coherent protection of individuals’ fundamental rights?
Assessed with regards to the more particular example of the right to good administration, these interrogations frame the main question of this study: Does the codification of the right to good administration in Article 41 CFR usurp the broader protection provided by the EU Courts under the GPL status of the notion? In other words, may the general principle of good administration take over where the scope of protection of the Charter’s right to good administration ends?
The present contribution will highlight that the scope of protection of the right to good administration and of the various procedural rights codified under its “umbrella” in Article 41 CFR is defined in a significantly more restricted manner than their protection as general principles of EU law, being therefore likely to lead to multiple “gaps” in protection. Having in view the important practical need to ensure a “consistent” compliance with individuals’ fundamental rights - inter alia the right to good administration -, this study will argue for a dynamic approach of interpretation of sources, for a “pluralistic” – as opposed to a “hierarchical” – understanding of the relationship between the various layers of protection in the EU legal order, which will be called the “lexical order of review” . This approach – which implies a continuing reliance on the GPL vector of protection - is the best suited to confirm the seriousness of the EU commitment to fundamental rights .
Besides this main purpose of assessing the principles of good administration at the confluence of their various sources, the present study further seeks to put forward the real interest and vast potential of the right to good administration in the EU legal order and especially in the context of “composite” administrative proceedings . With this objective in mind, the general introductory part of this study will be devoted to the analysis of the recognition, development, content and scope of application of the general principle of good administration. Such an overview is indispensable in order to highlight the real potential of this principle.
This contribution further seeks to supply an answer to those who still question the need of a right to good administration in the EU legal order . In this regard, without denying that the right to good administration does not have an independent judicial life of its own – but merely exists via its sub-components which are now listed in Article 41 CFR - this study will demonstrate that the gathering of those principles under the “umbrella” of the right to good administration is likely to have vast potential for the protection of individuals in the EU administrative space.
First, the present contribution suggests that by assimilating individuals’ rights during the administrative procedures to those enjoyed in judicial proceedings, the right to good administration leads to a sort of “judicialisation” of the administration , being capable of ensuring procedural justice, public administrative adherence to the rule of law and sound outcomes for administrative procedures. It is commonly agreed in this regard that adequate protection of procedural rights at the administrative level may have a positive impact for both individuals and the good functioning of the EU system as a whole; as prevention is better than cure, so good administration is better than remedies for bad administration . In this vein, although a remedy is normally available at the judicial level, on multiple occasions, the solution arrives too late to prevent harmful consequences for the individual concerned. Such a risk may be “prevented” by a proper protection of individuals’ rights at the administrative level. On the other hand, the achievement of sound administrative decisions in which individuals’ procedural rights are complied with may necessarily have a positive impact in terms of the proper functioning of the EU judicial apparatus in that it is likely to significantly decrease the workload of the EU Courts . In this way, the principle of good administration may be useful for the good administration of justice .
Second, this study will demonstrate that since the landmark TUM decision , the right to good administration has established a “bridge” between the discretionary powers of the EU administrative authorities and the protection of individuals in administrative proceedings. The principle of good administration appears to act as a counterweight to the discretionary powers of the administrative players in that it induces the latter, when adopting decisions within their important powers of appraisal, to take the rights of individuals into account. In this way, both the “objective” and “subjective” rationales of the principle of good administration - namely the efficiency and rationality of the administration, on the one hand and individuals’ procedural protection, on the other hand, – are concomitantly complied with .
Third, this contribution further seeks to highlight the potentiality of the right to good administration to fill the “gaps” of individual protection and to solve problems of legitimacy in the reality of the dynamically developing EU “integrated” administrative system – also known as “composite” administrative procedures - where decisions are taken with inputs from both national and EU administrative authorities, each using different procedural rules. The present study will illustrate that the “composite” nature of the right to good administration, by the strength stemming from the interaction of its sub-elements renders this “umbrella” right capable of ensuring the protection of individuals’ procedural rights within such “composite” administrative procedures . Consequently, the right to good administration may be held to constitute the key element of the integrated administrative system, the individual’s “ticket” for the protection of his procedural rights in the context of multi-level proceedings.
Finally, this study will highlight that the right to good administration has vast potential in becoming a “trust-enhancing principle” and in bringing citizens closer to the EU institutions . Indeed, by placing the individual at the center of preoccupations of the EU administration, by seeking to ensure the fairness of the administration and the corresponding adequate procedural protection of individuals, the right to good administration is likely to become a key element in ensuring citizens’ trust in the EU institutions and in improving the latters’ legitimacy . It is probably this “trust” rationale of the right to good administration which has determined the enhanced procedural protection of “interested third parties” in certain administrative proceedings . Indeed, in some instances, the EU Courts overstepped the formal conception of the strict standing rules , in order to give primacy to the procedural protection of interested third parties . It is therefore not excluded that in the long run, the right to good administration become the privileged instrument for the protection of interested third parties in administrative proceedings.