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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.