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The Pan-European General Principles on Administrative Organisation

General Issues

1. Article 2 (2) and (3) of Recommendation CM/Rec(2007)7 on good administration

  • Article 2 (2):  "[Public authorities] shall comply with domestic law, international law and the general principles of law governing their organisation, functioning and activities."/"[Les administrations publiques] respectent l’ensemble des règles du droit interne et international et des principes généraux du droit régissant leur organisation, leur fonctionnement et leurs activités"
  • Article 2 (3): " "[Public authorities] shall act in accordance with rules defining their powers and procedures laid down in their governing rules."/"[Les administrations publiques] agissent conformément aux règles de compétence et de procédure imposées par les dispositions qui les régissent."

2. CoE Handbook "The administration and you"

  • 1st edition 1996/1997, para. 12.1 (p. 11): "Public tasks can be conferred by law, decree or, in certain cases, by administrative acts, to private persons or entities who, while performing the task, may be entitled to “exercise public authority”. This is why the definition given here uses a functional criterion, that is the exercise of powers or prerogatives exceeding the rights or powers of ordinary persons. The public or private quality of the entity or person is not decisive. What matters is the nature of the powers it exercises. Such powers are defined by national law with respect of different activities (tasks). The exercise of public authority for performing a given task may be authorised in some states, but not in others."
  • 1st edition 1996/1997, para. 16 (p. 13): "Implicitly, the principle of lawfulness also means that the law as to the functions and powers of the administrative authorities should be validly enacted and sufficiently clear and specific."
  • 2nd edition 2018, p. 9 - commentary to Article 2 (3) of Recommendation CM/Rec(2007)7 on good administration: "Where a public authorityacts outside or beyond its powers (ultra vires), then the action will be unlawful. So that the public may understand the nature and the extent of a public authortiy's powers, these powers should be clear, precise and published widely."

3. General Principles of Administrative Organisation underlying Recommendation No. R (95) 19 of The Committee of Ministers to Member States on The Implementation of the Principle of Subsidiarity

  • Recommendation No. R (95) 19 implies the idea that the rules governing the organisation of administration shall in general assure that a task is fulfilled by those public entities which has the material equipment /staff corresponding to the demands of this task
  • Recommendation No. R (95) 19 implies the idea that the principles of organisation of powers should be in general designed to match powers with the characteristics (resources, size, geographical location, etc.) of the public authority in charge
  • Recommendation No. R (95) 19 implies the idea that effective performance of tasks assigned to a administrative authority demands the provision of adequate human and financial resources
Ultra vires and Consequences
 
  • The applicant complained, under Article 1 of Protocol No. 1, that he had been denied the option for a further term of twenty-one years under a lease on the ground that the option granted by the local authority had been ultra vires.
  • "38. The Government have emphasised in this case the doctrine of ultra vires which provides an important safeguard against abuse of power by local or statutory authorities acting beyond the competence given to them under domestic law. The Court does not dispute the purpose or usefulness of this doctrine which indeed reflects the notion of the rule of law underlying much of the Convention itself. It is not however persuaded that the application of the doctrine in the present case respects the principle of proportionality.
    39. The Court observes that local authorities inevitably enter into many agreements of a private law nature with ordinary citizens in the pursuance of their functions, not all of which however will concern matters of vital public concern. In the present case, the local authority entered in a lease and was unaware that its powers to do so did not include the possibility of agreeing to an option for renewal of the lease. It nonetheless obtained the agreed rent for the lease and, on exercise of the renewal of the option, had the possibility of negotiating an increase in ground rent. There is no issue that the local authority acted against the public interest in the way in which it disposed of the property under its control or that any third party interests or the pursuit of any other statutory function would have been prejudiced by giving effect to the renewal option. The subsequent statutory amendments further illustrate that there was nothing per se objectionable or inappropriate in a local authority including such a term in lease agreements.
    40. The Government argued that the applicant, as with all persons entering into contract with the local authority, should have been aware of the consequences of any incapacity and that he had the opportunity to take legal advice, or sue his solicitors for negligence in giving any such advice. Since however the local authority itself considered that it had the power to grant an option, it does not appear unreasonable that the applicant and his legal advisers entertained the same belief. While the Government also referred to the doctrine of ultra vires being mitigated by the principles of unjust enrichment, it is not suggested that in this case the applicant had any possibility to obtain some kind of compensation for the application of the rule in his case. The applicant not only had the expectation of deriving future return from his investment in the lease but, as was noted in the Court of Appeal, the option to renew had been an important part of the lease for a person undertaking building obligations and who otherwise would have had a limited period in which to recoup his expenditure.
    41. Having regard to those considerations, the Court finds that in this case there was a disproportionate interference with the applicant’s peaceful enjoyment of his possessions and therefore, concludes that there has been a violation of Article 1 of Protocol No. 1 to the Convention."

5. Similar case law of the ECtHR

The Role of Experts

6. ECtHR (GC), judgment Vavřička and Others v. Czech Republic (app. no. 49317/07), April 8, 2021

"297. As for the integrity of the policy-making process, the Court notes that in reply to the applicants claim about conflicts of interest the Government have explained the procedure followed by the NIC [i. e. National Immunisation Commission - Národní imunizační komise], in accordance with relevant European and international standards [...]. In the light of the elements before it, the Court considers that the applicants have not sufficiently substantiated their allegations that the domestic system is tainted by conflicts of interest, or their suggestion that the position on vaccination adopted by the relevant Czech expert bodies, or by the WHO, is compromised by financial support from pharmaceutical corporations.
298. With respect to the transparency of the domestic system and the extent to which the authorities invite public discussion, the Court notes that a degree of transparency is achieved in this respect through the publication of the minutes of the meetings of the NIC on the website of the Ministry of Health [...]. As for public participation, the Government submitted that the exclusively expert composition of the NIC was in line with the practice of many European States. The Court notes the initiative taken in 2015 to set up a platform for public discussion of vaccination policy, bringing together medical experts and civil society [...], although the applicants and the intervenor ROZALIO indicated that its meetings were few and had ceased by 2018. It cannot be said that the arrangements in force, under which policy is entrusted to an expert body operating under the aegis of the Ministry of Health, in accordance with the model chosen by the legislature and ultimately accountable to it, suffer from a serious deficit of transparency such as to call into question the validity of the vaccination policy followed by the Czech Republic."

Privatisation and its Consequences

7. Recommendation No R(93)7 on privatisation of public undertakings and activities

  • Definition of "privatisation" : "the total or partial transfer from public to private ownership or control of a public undertaking so that itceases to be a public undertaking"
  • Rules on the protection of the democratic rights of citizens, of users' and consumers' rights, of employees' rights, of the environment, and of of potential purchaser

8. ECtHR, judgement Mykhaylenky and Others v. Ukraine (app. no. 35091/02), November 30, 2004

  • The applicants instituted separate sets of proceedings in the local domestic courts, seeking the recovery of salary arrears and other payments from their former employer, the State-owned company Atomspetsbud, which had carried out construction work at Chernobyl within the zone that had been compulsorily evacuated. The Government maintained that, although the debtor company was State-owned, it was a separate legal entity and the State could not be held responsible for its debts under domestic law. Accordingly, the enforcement of judgments given in the applicants’ favour could not be carried out at the expense of the State budget The issue arises therefore whether the State is liable for the debts of a State-owned company which is a separate legal entity and whether it can be held responsible for the ultimate failure to pay the applicants the amounts awarded to them in the judgments against that company.
  • "44. In this respect the Court considers that the Government have not demonstrated that Atomspetsbud enjoyed sufficient institutional and operational independence from the State to absolve the latter from responsibility under the Convention for its acts and omissions.
    45. The Court notes that it is not suggested by the Government or by the materials in the case file that the State’s debts to the company […] had ever been paid in full or in part, which implies that the State is liable for the company’s ensuing debts. The debtor company had operated in the highly regulated sphere of nuclear energy and conducted its construction activities in the Chernobyl zone of compulsory evacuation, which is placed under strict governmental control on account of environmental and public-health considerations […]. Moreover, the management of the company was transferred to the Ministry of Energy as of May 1998 […]. In the Court’s opinion, these elements confirm the public nature of the debtor company regardless of its formal classification under domestic law. Accordingly, the Court concludes that there are sufficient grounds to deem the State liable for Atomspetsbud’s debts to the applicants in the special circumstances of the present case, despite the fact that the company was a separate legal entity.
    46. Accordingly, the Court finds that the applicants’ complaint is compatible ratione personae with the provisions of the Convention, and dismisses the Government’s objection in this respect."

9. Similar case law od the ECtHR on the 'responsibility' of the state for separate legal entities (governed by private law) which do not enjoy "sufficient institutional and operational independence from the State" to absolve the latter from its responsibility under the ECHR