Chapter V. General principles of European Administrative Law

• Author: Catalin Silviu Sararu
• Pages: 110-129

Chapter V

General principles of European Administrative Law

Section 1. Introductory explanations

In some countries such as Belgium, France, Greece, Ireland and the UK,

it is noted that the general principles of administrative law, designed to lay down

standards and suggest a behavioral pattern of civil servants, appear in different

parts of the legislation in force, of the parliament, specific parts of the delegated

legislation or courts of law ruling in disputes involving the public administration.

Unlike these, other countries have imposed general codification of the adminis-

trative procedure in order to systematize these principles. Thus, Austria (1925),

Belgium (1979), Denmark (1985), Germany (1976), Hungary (1957), the Neth-

erlands (1994), Poland (1960), Portugal (1991) and Spain (1958)

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.

At national level, these principles are included in administrative institu-

tions and procedures at all levels. Public sector actors are legally obliged to com-

ply with these legal principles and their compliance is controlled by independent

control bodies, judiciary systems and judiciary forces, parliamentary scrutiny

and, in some cases, authorized individuals

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.

At European level, it should be noted that most of the general principles

of European Administrative Law have been developed by the European Court of

Justice, being developed by the practice of the European Mediator and the Euro-

pean Code of Good Administrative Behavior developed by the European Court

of Justice. Some of these principles are currently being developed by the Charter

of Fundamental Rights of the European Union.

These principles underpin the drafting of the European Union Admin-

istrative Procedure Code

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by the Research Network on EU Administrative

Law (ReNEUAL

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). The draft was presented to the plenary of the European Par-

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See Cătălin-Silviu Săraru, Capitolul 3 – Principiile generale ale dreptului administrativ

european, in Ioan Alexandru, Cătălin-Silviu Săraru a.o., Drept administrativ european, Lumina

Lex, Bucharest, 2005, p. 156-177; Cătălin-Silviu Săraru, Considerații cu privire la principiile

Spațiului administrativ european și la necesitatea includerii lor în proiectul Codului

administrativ român, „Caietul Ști ințific” ISAR no. 7/2005, Section for Legal and

Administrative Sciences, 2005, p. 12-41.

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see to that effect Sigma nr. 27, OECD, Principles for Public Administration.

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See Herwig C.H Hofmann, Jens Peter Schneider, Jacques Ziller, Dacian C. Dragos, Codul

ReNEUAL de procedura administrativa a Uniunii Europene, Universul Juridic, Bucharest,

2016.

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For the documents developed by the EU Research Administrative Network research network,

see www.reneual.eu .

European Administrative Space 111

liament and formed the basis of the European Parliament's resolution of 15 Janu-

ary 2013 calling on the European Commission to submit a proposal for an act on

the EU's administrative procedure [2012/2024 (INL)].

The principles of public administration and public service law are often

difficult to define, sometimes appearing in some antinomy. Thus, efficiency

seems to be non-existent in some procedures; loyalty to the government seems to

be in opposition to professional integrity and political neutrality; some decisions

seem to be sometimes taken out of positive legislation, etc. That is why the doc-

trine refers to the existence of "blind concepts" related to the elusive nature of the

principles of public administration. "Blind concepts" are frequent concepts, with

elusive content or even vague principles that are issued and redefined by courts

of law or other public authorities approved in particular cases

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. This lack of

clarity raises numerous legal disputes, which are subject to trial by the courts of

justice, which must correlate their previously defined definitions with social val-

ues and perceptions that evolve over time. Consequently, the conceptual outline

of these principles remains unclear on a permanent basis. "Blind concepts" are,

therefore, those of good faith, reasonableness, pursuit of general good and loy-

alty. Virtually all legal principles can be categorized as "blind concepts." At-

tempts to ensure detail in these elusive aspects tend to lead to inconsistency and

contradiction. Contradiction and discrepancy also cause difficulties in updating

principles by affecting legal influences. From a legal perspective, appealing to

"blind principles" seems appropriate due to their malleability in disparate situa-

tions. However, from the point of view of the behavior of civil servants and public

authorities, it is necessary to develop the general principles established by the

Court through a specific doctrine.

In order to undertake a scientific study on a category of social problems,

we must first approach the setting of the method of study, namely the determina-

tion of the research and reasoning procedures most suited to the study of these

problems and allowing in-depth examination of the social facts, varied and mul-

tiform, by introducing a principle of unity and order

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. The advisable method can

not differ from that established for other public law branches

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. Therefore, we

will have to deal with observation and analysis work. The manifestations of the

legal life that coordinate the administration to uncover the principles through

which the relations between the Union, states and individuals are ensured must

be examined. On the other hand, the methodological approach to European ad-

ministrative law must be centered on the principle of functionality that seeks the

truth behind labels, trying to identify the substance of the rights, powers and legal

obligations that are recognized and enforced in various legal systems.

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Sigma Paper no. 27.

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Paul Negulescu, op. cit. (Principes du Droit International Administratif), 1935, p. 28.

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Idem, p. 28.