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The Pan-European General Principles on Administrative Sanctions
(compiled by Ulrich Stelkens)
I. Scope of the Pan-European General Principles on Administrative Sanctions
IV. Case Law of the ECtHR on the Relevance of Article 7 ECHR for Administrative Sanctions
I. Scope of the Pan-European General Principles on Administrative Sanctions
2. The definition of 'administrative sanctions' in the case law of the ECtHR
1. The Scope of the Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions
Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions:
"The Committee of Ministers [...];
Considering that administrative authorities enjoy considerable powers of sanction as a result of the growth of the administrative state as well as a result of a marked tendency towards decriminalisation ;
Considering that it is desirable, from the point of view of protection of the individual, to contain the proliferation of administrative sanctions by submitting them to a set of principles ;
Recalling the general principles governing the protection of the individual in relation to acts of administrative authorities set out in its Resolution (77) 31 and the principles concerning the exercise of discretionary powers by administrative authorities contained in its Recommendation No. R (80) 2 ;
Considering that administrative acts imposing an administrative sanction should be subjected to additional guarantees ;
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.
Scope
This recommendation applies to administrative acts which impose a penalty on persons on account of conduct contrary to the applicable rules, be it a fine or any punitive measure, whether pecuniary or not.
These penalties are hereinafter referred to as administrative sanctions.
The following are not considered to be administrative sanctions:
– measures which administrative authorities are obliged to take as a result of criminal proceedings ;
– disciplinary sanctions.
In the implementation of these principles, the requirements of good and efficient administration, as well as major public interests should be taken into account.
Where these requirements make it necessary to modify (or exclude) one or more of these principles, either in particular cases or in specific areas of public administration, every effort should nevertheless be made to observe respect for the greatest possible degree of equity, according to the general aims of this recommendation."
"Scope
4. The principles on which the member states are invited to draw in their law and practice apply to administrative acts which impose sanctions on individuals for conduct contrary to the applicable rules.
The term "administrative act" has the same meaning as in the previous recommendations. [...] This definition, which concerns measures or decisions "taken in the exercise of public authority", covers not only the acts of administrative authorities but also measures taken by other persons, public or private undertakings or individuals in the exercise of public authority prerogatives conferred upon them. The drafters were aware of the problems that the application of this recommendation might pose with respect to sanctions the recourse to which is automatic in nature.
Conduct contrary to applicable rules includes omissions where such rules impose a duty to take action.
The meaning of the word "sanction" for the purpose of this recommendation requires clarification. A sanction is imposed by an administrative act. Not all administrative acts placing a burden on or affecting the rights or the interests of private citizens are to be considered "sanctions". Such acts could pursue a plurality of goals including the pursuit of public interest and public policy, the protection of the community against an imminent danger (to public health, the quality of the environment, security of employment, etc.) by way of preventive measures as well as a punitive goal. Often there might be uncertainty as to which is the prevailing aim of the administrative act. This recommendation shall apply only to those administrative acts, here defined as administrative sanctions, whose principle aim is of a punitive nature. By way of example, refusal to grant, or to renew, a licence on the grounds that the applicant is not a fit and a proper person, within the eaning of the applicable rules, shall not be considered as an administrative sanction for the purposes of this recommendation. The same goes for prohibitions or the withdrawal of licences in order to protect the environment, public health, etc., from further acts of the person concerned.
Administrative sanctions may take many forms. Without aspiring to give an exhaustive list, one might mention fines or higher charges, confiscation of goods, closure of an undertaking, a ban on practising an activity and suspension or withdrawal of licences, permits or authorisations necessary to the conduct of a business, industry or occupation or to the exercise of some form of freedom.
Whilst the rules whose breach entails the legal consequence of an administrative sanction might be classified under any branch of the law (civil, criminal or other), sanctions (civil, criminal or other) that do not fall within the concept of administrative sanctions as described above, do not fall within the scope of this recommendation.
Not classed as administrative sanctions within the meaning of the recommendation are administrative measures which arise as a necessary consequence of a criminal conviction as well as disciplinary sanctions, both sanctions applicable within the administration and sanctions applicable within organised professional activities. Since disciplinary sanctions are excluded, a fortiori other measures taken by an administrative authority with respect to its staff for reasons pertaining to the latter’s behaviour, are also excluded.
In keeping with the previous recommendations, the persons concerned may be physical or legal, in as much as administrative sanctions may be imposed on legal persons under the domestic law of the state implementing the recommendation."
2. The definition of 'administrative sanctions' in the case law of the ECtHR
See on the definitions of 'administrative sanctions' in the case law of the ECtHR:
- A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 4.01 ff.
-
Baris Bahceci, 'Redefining the Concept of Penalty in the Case-law of the European Court of Human Rights' (2020) 26 EPL, pp. 867 - 888
ECtHR (Plenary), judgement Engel and others v. the Netherlands (5100/71; 5101/71; 5102/71; 5354/72; 5370/72) 8 June 1976
"80. All the Contracting States make a distinction of long standing, albeit in different forms and degrees, between disciplinary proceedings and criminal proceedings. For the individuals affected, the former usually offer substantial advantages in comparison with the latter, for example as concerns the sentences passed. Disciplinary sentences, in general less severe, do not appear in the person's criminal record and entail more limited consequences. It may nevertheless be otherwise; moreover, criminal proceedings are ordinarily accompanied by fuller guarantees.
It must thus be asked whether or not the solution adopted in this connection at the national level is decisive from the standpoint of the Convention. Does Article 6 (art. 6) cease to be applicable just because the competent organs of a Contracting State classify as disciplinary an act or omission and the proceedings it takes against the author, or does it, on the contrary, apply in certain cases notwithstanding this classification? This problem, the importance of which the Government acknowledge, was rightly raised by the Commission; it particularly occurs when an act or omission is treated by the domestic law of the respondent State as a mixed offence, that is both criminal and disciplinary, and where there thus exists a possibility of opting between, or even cumulating, criminal proceedings and disciplinary proceedings.
81. The Court has devoted attention to the respective submissions of the applicants, the Government and the Commission concerning what they termed the "autonomy" of the concept of a "criminal charge", but does not entirely subscribe to any of these submissions [...].
The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7 (art. 7). Such a choice, which has the effect of rendering applicable Articles 6 and 7 (art. 6, art. 7), in principle escapes supervision by the Court.
The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The Court therefore has jurisdiction, under Article 6 (art. 6) and even without reference to Articles 17 and 18 (art. 17, art. 18), to satisfy itself that the disciplinary does not improperly encroach upon the criminal.
In short, the "autonomy" of the concept of "criminal" operates, as it were, one way only.
82. Hence, the Court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6).
In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the Court expresses its agreement with the Government.
However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the "criminal" sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so [...].
83. It is on the basis of these criteria that the Court will ascertain whether some or all of the applicants were the subject of a "criminal charge" within the meaning of Article 6 para. 1 (art. 6-1). [...]"On the 'Engel criteria' and their subsequent application by the ECtHR: A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 4.11 ff.
ECtHR (GC), judgement Jussila v. Finland (73053/01) 23 November 2006:
"43. While it may be noted that the above-mentioned cases in which an oral hearing was not considered necessary concerned proceedings falling under the civil head of Article 6 § 1 and that the requirements of a fair hearing are the most strict in the sphere of criminal law, the Court would not exclude that in the criminal sphere the nature of the issues to be dealt with before the tribunal or court may not require an oral hearing. Notwithstanding the consideration that a certain gravity attaches to criminal proceedings, which are concerned with the allocation of criminal responsibility and the imposition of a punitive and deterrent sanction, it is self-evident that there are criminal cases which do not carry any significant degree of stigma. There are clearly "criminal charges" of differing weight. What is more, the autonomous interpretation adopted by the Convention institutions of the notion of a "criminal charge" by applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law, for example administrative penalties [...], prison disciplinary proceedings [...], customs law [...], competition law [...], and penalties imposed by a court with jurisdiction in financial matters [...]. Tax surcharges differ from the hard core of criminal law; consequently, the criminal-head guarantees will not necessarily apply with their full stringency [...].
On this 'Jussila concession' and its subsequent application by the ECtHR: A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 4.43 ff.
II. The Principles of Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions
Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions:
The Committee of Ministers [...];
Considering that administrative authorities enjoy considerable powers of sanction as a result of the growth of the administrative state as well as a result of a marked tendency towards decriminalisation ;
[...] ;
Considering that administrative acts imposing an administrative sanction should be subjected to additional guarantees ;
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation.
[...].
Principles
Principle 1
The applicable administrative sanctions and the circumstances in which they may be imposed shall be laid down by law.
Principle 2
1. No administrative sanction may be imposed on account of an act which, at the time when it was committed, did not constitute conduct contrary to the applicable rules. Where a less onerous sanction was in force at the time when the act was committed, a more severe sanction subsequently introduced may not be imposed.
2. The entry into force, after the act, of less repressive provisions should be to the advantage of the person on whom the administrative authority is considering imposing a sanction.
Principle 3
1. A person may not be administratively penalised twice for the same act, on the basis of the same rule of law or of rules protecting the same social interest.
2. When the same act gives rise to action by two or more administrative authorities, on the basis of rules of law protecting distinct social interests, each of those authorities shall take into account any sanction previously imposed for the same act.
Principle 4
1. Any action by administrative authorities against conduct contrary to the applicable rules shall be taken within a reasonable time.
2. When administrative authorities have set in motion a procedure capable of resulting in the imposition of an administrative sanction, they shall act with reasonable speed in the circumstances.
Principle 5
Any procedure capable of resulting in the imposition of an administrative sanction which has been instituted in respect of a person shall give rise to a decision which terminates the proceedings.
Principle 6
1. In addition to the principles of fair administrative procedure governing administrative acts as set out in Resolution (77) 31, the following principles shall apply specifically to the taking of administrative sanctions:
i. Any person faced with an administrative sanction shall be informed of the charge against him;
ii. He shall be given sufficient time to prepare his case, taking into account the complexity of the matter as well as the severity of the sanctions which could be imposed upon him;
iii. He or his representative shall be informed of the nature of the evidence against him;
iv. He shall have the opportunity to be heard before any decision is taken;
v. An administrative act imposing a sanction shall contain the reasons on which it is based.
2. Subject to the consent of the person concerned and in accordance with the law, the principles in paragraph 1 may be dispensed with in cases of minor importance, which are liable to limited pecuniary penalties.
However, if the person concerned objects to the proposed sanction, all the guarantees of paragraph 1 shall apply.
Principle 7
The onus of proof shall be on the administrative authority.
Principle 8
An act imposing an administrative sanction shall be subject, as a minimum requirement, to control of legality by an independent and impartial court established by law."
On these principles see Explanatory memorandum (European Committee on Legal Co-operation (CDCJ) - 54th meeting (Strasbourg, 3 - 7 December 1990) - Meeting report, pp. 56 ff.)
Cf. also CoE (ed.), The Administration and you (2nd edition 2018), pp. 38 ff.
"Principle 15 – Administrative sanctions
Administrative sanctions shall be prescribed by law and only imposed by public authorities on individuals within clearly prescribed conditions.
[...].
Commentary
Principle 15 applies where there has been a breach of an administrative rule or where there has been a failure to comply with an administrative decision. It does not concern measures that public authorities are required to take as a result of civil proceedings or disciplinary sanctions which are not considered to be administrative sanctions.
By way of example, a refusal to grant or renew a licence on the grounds that the applicant no longer fulfils the necessary requirements shall not be considered as an administrative sanction. Rather than being punitive, the prohibition or the withdrawal of a licence may be due to new laws introduced to protect, for example, the environment or public health.
Administrative sanctions may be imposed by public authorities by way of a fine or any other monetary or non-monetary measure. [...].
Public authorities are entitled to establish appropriate systems of administrative sanctions in order to ensure individuals comply with their decisions. In order to ensure that administrative sanctions are lawfully imposed, the power of public authorities to impose sanctions must be provided for in legislation. The legislation should also lay down the level of pecuniary sanctions that may be imposed by public authorities in particular circumstances and define those cases where sanctions can restrict the exercise of fundamental rights. A margin of discretion may be left to the relevant public authority to determine the specific circumstances in which particular sanctions may be imposed.
The "fair trial" safeguards, a precondition for imposing an administrative sanction, reflect the protections contained in Article 6 of the European Convention on Human Rights and should apply where appropriate. In cases of minor infringements carrying small pecuniary penalties, such safeguards may be relaxed where the individual concerned consents. In certain cases, notably parking fines, the requirement of good and efficient administration may call for simplified procedures, even if the person concerned does not consent. In addition, where an individual has been found to be in breach of a particular administrative rule and the sanctions for this breach have been amended or replaced prior to the determination of the type or level of fine appropriate, he or she should be entitled to benefit from the level or type of sanction most favourable to him or her.
Examples of administrative sanctions other than fines include increases in charges, confiscation of goods, ordering the closure of a business, banning the practice of a professional activity, or suspending or withdrawing licences, permits or authorisations. Whether or not a particular act is an administrative sanction will depend on the relevant administrative rules."
III. Case Law of the ECtHR on the Relevance of the 'Criminal Limb' of Article 6 ECHR for Administrative Sanctions
A summary of this case law is presented in ECtHR (ed.), Guide on Article 6 of the European Convention of Human Rights - Right to a fair trial (criminal limb) (version of August 2022), para. 15 ff.
See, furthermore, A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 5.01 ff.
IV. Case Law of the ECtHR on the Relevance of Article 7 ECHR for Administrative Sanctions
A summary of this case law is presented in ECtHR (ed.), Guide on Article 7 of the European Convention of Human Rights - No punishment without law: the principle that only the law can define a crime and prescribe a penalty (version of August 2022) para. 3 ff.
Cf., e. g., ECtHR, judgment Sergey Zolotukhin v. Russia (14939/03) 10 February 2009
See, furthermore
- A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 7.01 ff.
V. Case Law of the ECtHR on the Relevance of Article 4 of Protocol No. 7 to the European Convention on Human Rights for Administrative Sanctions
A summary of this case law is presented in ECtHR (ed.), Guide on Article 4 of Protocol No. 7 to the European Convention on Human Rights - Right not to be tried or punished twice (version of August 2022), para. 9 ff.
See, furthermore, A. Andrijauskaitė, The Principles of Administrative Punishment under the ECHR (2022), para. 6.01 ff.
Cf. e. g. ECtHR, judgment Menarini Diagnostics S.r.l. v. Italy (43509/08) 27 September 2011
VI. Subsidiary Applicability of the Pan-European General Principles on Discretion, on Administrative Procedure and on Judicial Review
Recommendation No R(91)1 of the Committee of Ministers to member states on administrative sanctions:
"The Committee of Ministers [...];
Considering that administrative authorities enjoy considerable powers of sanction as a result of the growth of the administrative state as well as a result of a marked tendency towards decriminalisation ;
Considering that it is desirable, from the point of view of protection of the individual, to contain the proliferation of administrative sanctions by submitting them to a set of principles ;
Recalling the general principles governing the protection of the individual in relation to acts of administrative authorities set out in its Resolution (77) 31 and the principles concerning the exercise of
discretionary powers by administrative authorities contained in its Recommendation No. R (80) 2 ;
Considering that administrative acts imposing an administrative sanction should be subjected to additional guarantees ;
Recommends the governments of member states to be guided in their law and practice by the principles set out in this recommendation."
"1. [...] The common purpose of [the activities of the CoE in the field of administrative law] is to promote protection of the individual vis a vis the action of public authorities with a view to maintaining the balance which characterises the sphere of public freedoms.
2. Failing efforts to preserve it, this balance may appear extremely precarious in the field of administrative sanctions, the volume of which has constantly expanded through a combination of factors. The first of these is the growth of the administrative state, which has not been substantially called into question by recent trends towards deregulation and privatisation. Administrations now play a part in the regulatory framework governing many different sectors of social life: they lay down the rules, supervise their enforcement and wield a broad panoply of instruments for compelling individuals to comply and for sanctioning failure to do so. This applies particularly to such areas as social security, taxation, environmental protection, town planning, public health, trade, etc. This situation is compounded by decriminalisation processes, which tend to transfer punishment of a number of offences from the criminal to the administrative sphere. Administrative sanctions are administrative acts of a particular type which can have very severe consequences for individuals, for instance when they comprise measures involving restriction or deprivation of rights. It seems desirable to supplement the general principles applicable to performance of administrative acts and exercise of discretionary powers (embodied, for instance in Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities and Recommendation No. R (80) 2 concerning the exercise of discretionary powers by administrative authorities) with a number of specific principles, without prejudice to possible application of the guarantees contained in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such is the purpose of the present Recommendation."
The decision to impose a sanction can, thus, be considered
- as an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal (administrative acts")
and
- as an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal (administrative acts)"
and
- as an 'individual decision' in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
and
- as an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").
Thus, the basic principles enshrined in these recommendations may apply also in the case of decisions imposing a sanction, i.e. the pan-European general principles
- on discretion (for these principles click here),
- fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here) and
- on judicial review (for these principles click here).