The right to good administration - is the constitutional regulation necessary?

Author:Oana Saramet
Position:Senior Lecturer, Ph.D., Transilvania University of Brasov, Faculty of Law
Pages:88-100
SUMMARY

The constitutional revision from 2003 enriched the patrimony of the fundamental rights and freedoms of Romanian citizens with three such rights and freedoms: the right to a healthy environment, economic freedom and access to culture. More than 16 years after this revision, but also as a member state of the European Union, we consider as an opportunity and necessity, at the same time, a new revision of our fundamental law, a consistent one at this moment, which should take into consideration the consecration of other rights, even by designing the necessary constitutional framework for ensuring and respecting a good administration. Analysing the constitutional provisions of other states, as well as those of the European level, the relevant doctrine and jurisprudence, using research methods such as multidisciplinary, comparative, sociological, empirical or systemic, it will be possible for us to conclude that good administration is one of those indefinite or determinable legal concepts. Being such a concept it is necessary to identify elements that allow us to configure it, elements that we should find in a unitary text in an article of our fundamental law, and through which the right to good administration would be enshrined. Therefore, we appreciate that in a state where the public administration, exercising of its functions and attributions, also had delicate moments in ensuring a good and efficient administration, the consecration of the right to good administration, by exhaustively capturing, as far as possible, the elements the definers of the concept of good administration, is a natural consequence of the constitutional recognition of the rule of law.

 
CONTENT
88 OANA ŞARAMET
PUBLIC LAW
THE RIGHT TO GOOD ADMINISTRATION – IS THE
CONSTITUTIONAL REGULATION NECESSARY?*
Oana ŞARAMET**
Abstract: The constitutional revision from 2003 enriched the patrimony of the fundamental
rights and freedoms of Romanian citizens with three such rights and freedoms: the right to a healthy
environment, economic freedom and access to culture. More than 16 years after this revision, but
also as a member state of the European Union, we consider as an opportunity and necessity, at the
same time, a new revision of our fundamental law, a consistent one at this moment, which should
take into consideration the consecration of other rights, even by designing the necessary
constitutional framework for ensuring and respecting a good administration. Analysing the
constitutional provisions of other states, as well as those of the European level, the relevant doctrine
and jurisprudence, using research methods such as multidisciplinary, comparative, sociological,
empirical or systemic, it will be possible for us to conclude that good administration is one of those
indefinite or determinable legal concepts. Being such a concept it is necessary to identify elements
that allow us to configure it, elements that we should find in a unitary text in an article of our
fundamental law, and through which the right to good administration would be enshrined. Therefore,
we appreciate that in a state where the public administration, exercising of its functions and
attributions, also had delicate moments in ensuring a good and efficient administration, the
consecration of the right to good administration, by exhaustively capturing, as far as possible, the
elements the definers of the concept of good administration, is a natural consequence of the
constitutional recognition of the rule of law.
Keywords: Public Law, Administrative and Constitutional Law, right, good administration,
constitutional provision.
Introduction
According to the Explanatory Dictionary of the Romanian language, “to
govern”1 means to lead a state, but also the verb “to administer”2 is explained by
* The article was prepared for the International Law Conference, "Current Issues within EU and
EU Member States: Converging and Diverging Legal Trends", 3rd edition, organized by the Faculty of
Law – Transilvania University of Braşov on the 29th-30th of November 2019. All links were last
accessed on 15 November 2019.
Law Review special issue, Decembre 2019, pp. 88-100
The right to good administration – is the constitutional regulation necessary 89
the same term, namely to lead, but not a state, but institutions or businesses. Just
from these basic definitions of the two mentioned words, it can be created
confusion if we consider that “to govern`” is synonymous with “to administrate”.
But, as Venice Commission has shown in Stocktaking on the notions of “good
governance” and “good administration”, „the concept of good governance
developed by the World Bank has been end or set by a range of other international
actors and organisations, which have often adapted it to their own needs”3 and
many attempts have been made by international organisations or national
authorities to modify it with a view to include democratic elements4. Thus, it is
considered „the concept of good governance does not find its origin in the
constitutional or legal discourses, being rather a non-legal concept”5. On the
contrary, it is stated that good administration is included in good governance, as
an important dimension of that concept, and also it is „widely accepted that good
administration is a legal concept in itself, which is enshrined in international
documents as well as in the legal order of several states”6.
Therefore, first of all we have to differentiate between these two concepts -
good governance and good administration, concepts that are an important part of
the vocabulary used by the persons who governs us, even when is set up the
constitutional and legal framework for organization and functioning of the public
administration.
The doctrine considers that good governance, but even good administration
are indefinite legal concepts7, concepts whose content cannot be accurately
determined and for this reason it is impossible to formulate a precise and clear
definition for these two concepts. We have to take into consideration when we are
trying to determine the content of these concepts that even their content differs
depending on the social-political reality which we are referring to, but also on the
political regime of that state, and this is the situation just if we only refer to the
perception of these concepts at national level. However, such an approach would
be limited and inadequate in the current reality, it is important to remember that
** Senior Lecturer, Ph.D. – Transilvania University of Braşov, Faculty of Law
(oana.saramet@unitbv.ro).
1 See in this regard, The explanatory dictionary of the Romanian language, on-line version, available
on: https://dexonline.ro/definitie/guverna.
2 Idem, available on: https://dexonline.ro/definitie/administra.
3 European Commission for Democracy through Law (Venice Commission), Stocktaking on the
notions of “good governance” and “good administration”, Study no. 470 / 2008, CDL-AD(2011)009,
Strasbourg, 8 April 2011, p. 4, available on: https://www.venice.coe.int/webforms/documents/
default.aspx?pdffile=CDL-AD(2011)009-e.
4 See, European Commission for Democracy through Law (Venice Commission), Stocktaking on
the notions of “good governance” and “good administration”, op. cit., p. 4.
5 Ibidem.
6 Ibidem.
7 D. Apostol Tofan, Administrative Law, tome I, forth edition, Bucharest: C.H. Beck, 2018, p. 12.
90 OANA ŞARAMET
these concepts have been developed at the level of international and / or regional
bodies, organizations or institutions, as the case may be. Therefore, we will try to
identify the main elements, the defining ones for these concepts so that, based on
our constitutional regulations, especially, but also on legal ones, to be possible for
us to justify our answer to the question regarding the necessity of constitutional
regulation of the right to good administration.
We decided to discuss about good governance, but in this work, especially
about good administration, because this is what each of us wants to be assured by
today's governors to limit their powers and attributions which, sometimes even
with our approval, which they have assigned, including by the constitution of a
state to ensure the government of the state. We can observe such inclinations
especially among the important central authorities within the executive power,
such as the head of state, especially when this position is held by a president of the
republic, or the government. In this regard, we appreciate that the most eloquent
example of our constitutional system it is represented by the constitutional
provisions of the emergency ordinances and the excessive appetite8 of our
Government to use them to regulate in the most diverse areas, seriously
undermining the exclusive attribution of the Parliament to adopt normative acts in
the law field.
But, today's citizens increasingly demand, sometimes even through less
peaceful forms, respect for their rights, our leaders are asked imperatively to not
forget that the power in any democratic state it belongs to the people, and they –
our leaders have just specific powers and attributions, constitutionally and legally
established, to exercise this power, but only for the benefit of the people who
empowered the leaders to do so.
1. Good governance and good administration - different legal concepts
We have already mentioned that these two concepts are legal ones, good
administration being a dimension of good governance. In our contemporary
period9, in the context of developing another concept and mechanisms for practical
8 From the Activity Report of the Legislative Council, Chapter IV-The official evidence of the
Romanian legislation-Directory of Romanian legislation-The issuance of the normative acts in
execution, report from 2017, we notice that the number of these emergency ordinances of the
Government (GEO) was of 117 compared to 278 laws adopted by the Parliament, of whic h almost half
were laws by which they were adopted or rejected including the GEO. Also, from the activity report
for the year 2018, we note that the number of these GEOs was 114 compared to the 363 laws adopted
by the Parliament, of which almost one third were laws which were adopted or rejected including the
GEO. (These activity reports are available on: http://www.clr.ro/InfoPublic/rapActiv.aspx).
9 This does not mean that about the concept of governance was discussed only in the
contemporary period, on the contrary various aspects regarding the governance, its element s, what its
implementation implies so that we can talk about good governance, for example, have been analysed
by "researchers" from various fields, from philosophy to law, politics, sociology, economics,
The right to good administration – is the constitutional regulation necessary 91
implementation sustainable development10, it has been discussed, mainly by
international financial institutions, such as the World Bank, about governance11
and good governance, about what they imply, what is the content of these
concepts. Regarding the concept of good administration, the doctrine appreciates
that a first definition of it was outlined by the Council of Ministers, the
decision-making body of the Council of Europe12 departing from a real necessity
determined by different aspects such as the fact that: „the public authorities play a
key role in democratic societies; that they are active in numerous spheres; that their
activities affect private persons’ rights and interests; that national legislation and
various international instruments, particularly those of the Council of Europe, offer
these persons certain rights with regard to the administration; and that the
European Court of Human Rights has applied the Convention for the Protection of
Human Rights and Fundamental Freedoms to the protection of private persons in
their relations with the administration”13. We have to point out that even the
Committee of Ministers of the Council of underlined that „good administration is
an aspect of good governance; that it is not just concerned with legal
arrangements”14, and which involves many other elements that contribute to the
definition of the concept of good administration.
Therefore, governance and good governance are concepts that take into
account the decision-making side of the specific activities of exercising power by
management”. See, also for some details, E. Slabu, Good administration in the European administrative
space, Bucharest: C.H. Beck, 2018, p. 21.
10 Discussing about the concept of good governance for sustainable development, an author
pointed out that, in this case, good governance „should ensure achievement of a sustainable economy,
which provides prosperity and opportunities for all; accomplishment of a strong, healthy and just
society meeting the diverse needs of the stakeholders; and sustainable use of the resources within the
environmental limits”, and it is also very important to promote „effective, participative systems of
governance focused on engaging citizens’ creativity, energy and diversity is also an objective of the
good governance”. See, S. Mojsovska, Towards good governance for sustainable development in Macedonia,
Economic Development no. 1-2/2009, p. 88, available on: https://www.ceeol.com/search/article-
detail?id=209078.
11 An author pointed out a real truth about the concept of governance, namely that this concept is
not a new one, it is as old as human civilization. When you are explaining this concept as simple as he
has done, it is obviously that he is right. Thus, he states that „simply put "governance" means: the
process of decision-making and the process by which decisions are implemented (or not
implemented)”. See, Y. K. Sheng, What is good governance, United Nations Economic and Social
Commission for Asia and the Pacific, available on: https://www.unescap.org/sites/default/files/
good-governance.pdf.
12 E. Slabu, Good administration in the European administrative space, op. cit., p. 23.
13 See point no. 13 of the Preamble of Recommendation CM/Rec(2007)7 of the Committee of Ministers
to member states on good administration, adopted by the Committee of Ministers on 20 June 2007 at the
999bis meeting of the Ministers’ Deputies, this recommendation is available on: https://rm.coe.int/
16807096b9.
14 See point no. 19 of the Preamble from the same Recommendation CM/Rec(2007)7 of the
Committee of Ministers to member states on good administration.
92 OANA ŞARAMET
the rulers, by the decisions took by them, this way being outline the guidelines for
the development of a state, but also how it will be achieved the leadership of that
state. On a contrary, administration and good administration are about the
methods in which public authorities, especially those in the sphere of public
administration, put into practice these leading ideas.
1.1. Good government
Good governance is seen as a concept that is "embedded in the more general
principles of the rule of law", nowadays being "considered universal" which
should mean that it must "be applied globally"15. Good governance has to "define
the responsibility and effectiveness of governmental activity, but also the fight
against corruption and political clientelism"16. By outlining what this concept
should take into consideration, we could agree to identify so succinctly the content
of good governance. However, we consider that both governance and good
governance have a broader content.
Thus, governance should mean „the functioning of institutions that should
have social legitimacy and work effectively and responsibly, the capacity of
societies to create a system of representations, institutions, and intermediary
structures geared to achieving the objectives set out above”17, but also „the way of
social coordination or social order”18. Another author points out that „governance
refers not only to relations between individuals, but also to political and power
structures”19. In another opinion, it is shown that „by and large, the term
“Governance” has become a more or less neutral concept that focuses on steering
mechanisms in a certain political unit, emphasizing the interaction of State (First),
Business (Second), and Society (Third Sector) players”20. Another author21
appreciates that when most international organisations provides definition of good
governance, actually they are referring to governance „outlining three aspects of it:
i) the type of the political regime, ii) the public management of economic and social
15 D.C. Dragoş, B. Neamu, coordinators, Ombudsman Institution: Alternative Justice?, Bucharest:
C.H. Beck, 2011, p. XIX.
16 E. Slabu, Good administration in the European administrative space, op. cit., p. 22.
17 M. Zakrzewska, The role of social participation in the concept of good governance - a theoretical
approach, Public Policy and Administration no. 4/2017, p. 530, available on: https://www.ceeol.com/
search/article-detail?id=608138.
18 R. Maynz, New Challenges In Governance Theory, European University Institute. Jean Monnet
Chair Paper RSC, 1998, quoted by M. Zakrzewska, op. cit., p. 530.
19 J. Newman, Modernising Governance. New Labour, Policy and Society, Sage, 2000, quoted by M.
Zakrzewska, op. cit., p. 530.
20 W. Drechsler, Governance, good governance, and government: The case for Estonian administrative
capacity, TRAMES no. 4/2204, p. 388, available on: https://www.ceeol.com/search/article-
detail?id=201280.
21 S. Ladi, Good governance and public administration reform in the Black Sea economic cooperation
(BSEC) member states, Athens: International Centre for Black Sea Studies, Xenophon Paper no. 6, p. 11,
available on: http://icbss.org/media/110_original.pdf.
The right to good administration – is the constitutional regulation necessary 93
resources, and iii) the capacity of government to design, formulate and implement
policies”22.
Therefore, identifying the content of the concept of governance is a complex
process, which differs from author to author, depending on how each author
approaches this concept. It is a certainty that government is referring to the
functioning of the state institutions, respecting principles such as legality,
efficiency, effectiveness, but also to the settlement of objective procedures and
mechanisms for the designation of these institutions so that the relationships
between individuals, between individuals and these institutions, but also between
these institutions can be optimally realized. The way the state government will be
understood is related to the type of political regime, public management and
human resources, but also to the ability of rulers to configure and implement
various policies needed in a state dominated by the rule of law, such as the respect
of fundamental rights and freedoms, the independence of justice or the principle of
separation and balance of powers in a state.
Unlike the term of governance, good governance „is mainly a political and
technocratic term without normative aspirations and suggests that governance
should be “good” and not “bad”23, which „has acquired the characteristics of a
“container concept”, which incorporates a variety of principles and is as general as
concepts such as globalisation or global governance”24. Good governance is such a
concept because the areas of interest are numerous: “universal protection of
human rights non-discriminatory laws; efficient, impartial and rapid judicial
processes; transparent public agencies; accountability for decisions by public
officials; devolution of resources and decision making to local levels from the
capital; and meaningful participation by citizens in debating public policies and
choices”25. If we are considering that the good governance is related to sustainable
development then our „container concept” „should ensure achievement of a
sustainable economy, which provides prosperity and opportunities for all;
accomplishment of a strong, healthy and just society meeting the diverse needs of
the stakeholders; and sustainable use of the resources within the environmental
limits”26.
It is obviously that good governance also has a wide content, almost
impossible to identify in its entirety, which takes into consideration all aspects of
the life of a society, a state, or an international organization, which could be
modified depending on the changes that occur in the social reality.
22 S. Ladi, op. cit., p. 11, quoting World Bank, Governance: The World Bank’s Experience
(Washington D.C.: The World Bank, 1994).
23 S. Ladi, op. cit., p. 11.
24 Ibidem.
25 T. G. Weiss, Governance, Good Governance and Global Governance: Conceptual and Actual
Challenges, Third World Quarterly 21, no. 5 (2000), p. 801, quoted by S. Ladi, op. cit., p. 11.
26 S. Mojsovska, op. cit., p. 88.
94 OANA ŞARAMET
Because „good governance is a product of time and the individual historical,
political and economic conditions of each country have to be taken into account
when reforms are prioritised”27, it would be advisable to identify several defining
elements that must be veritable constants on the basis of which the concept of good
governance can be identified. Besides, this is the way used by different
international organizations to identify the content and the meaning of good
governance, and in our opinion it is more accurate to proceed like this to create a
framework for identifying this concept. So, for example, the World Bank is
identifying such defining elements as: public sector management, accountability,
legal framework for development, and transparency and information, but also
military expenditure and human rights28. OSCE underlines that it is possible to
identify a good governance when „a public sector [is] based on integrity, openness,
transparency, accountability and rule of law as being a major factor of sustainable
economic growth, and recognize that such a public sector constitutes an important
element for fostering citizens’ trust in public institutions and government”29. In a
document from the European Commission there are identified five principles
which underpin good governance: openness, participation, accountability,
effectiveness and coherence30. It is also mentioned that the application of these five
principles reinforces those of proportionality and subsidiarity31.
1.2. Good administration
We already know that the rule of law also includes respect for fundamental
rights and freedoms. But, the public administration, by its authorities and
institutions, exercising honestly and properly their powers, is obliged to respect
the rights and duties of each individual, if not even to contribute to their
27 S. Ladi, op. cit., p. 12. Another author considers that: „Good enough governance, as a concept,
suggests that not all governance deficits need to (or can) be tackled at once, and that institution- and
capacity-building are products of time; governance achievements can also be reversed. Good enough
governance means that interventions thought to contribute to the ends of economic and political
development need to be questioned, prioritised, and made relevant to the conditions of individual
countries. They need to be assessed in the light of historical evidence, sequence, and timing, and they
should be selected carefully in terms of their contributions to particular ends such as poverty
reduction and democracy”. See M. S. Grindle, Good Enough Governance Revisited, Development Policy
Review 25, no. 5/2007, p. 554, available on: http://courses.washington.edu/pbaf531/Grindle_
GoodEnoughGovRevisited.pdf.
28 Governance. The World Bank’s Experience, a World Bank Publication, USA, 1994, p. XIII,
available on: http://documents.worldbank.org/curated/en/711471468765285964/pdf/multi0
page.pdf.
29 OSCE, Ministerial Council, Declaration on strengthening good governance and combating corruption,
money-laundering and the financing of terrorism, MC.DOC/2/12, Dublin, 2012, available on:
https://www.osce.org/cio/97968?download=true.
30 Commission of European Communities, European Governance. A White Paper, COM(2001) 428
final, Brusseles, 2001, available on: https://ec.europa.eu/europeaid/european-governance-white-
paper_en.
31 Ibidem.
The right to good administration – is the constitutional regulation necessary 95
fulfillment in accordance and within the limits of their competence. To
administrate a community should be the main mission of any structure from the
public administration structure – even if we are talking about public authority or
public institution. And in order to talk about good administration or not, we could
see whether "the fundamental rights of the governed ones are respected by the
rulers, as in any state that recognizes and applies the rule of law"32, but also "if the
proper functioning of the public administration is ensured," with respect to clear,
predictable, known legal provisions, known" 33 by the governed ones, but also and
by the rulers civil servants.
Like good governance, whose dimension it is, good administration is a
complex concept that is difficult to be formulated in a synthetic definition, and to
configure this definition it is imperative to respect several other principles, such as
the principle of legality, the principle of proportionality, the principle of
decision-making transparency, or others objective aspects that have to characterize
the activity of the public administration, whether in fulfilling this activity is
involved just the public official or even the civil servant.
„In the modern area of social relations there is an increasing demand for good
and effective governance which includes good administration”34. As we already
mentioned above, the concept of good administration is various and difficult to
define in an unequivocal, brief way35, but certainly it means that the functioning
process of authorities and institutions forming the executive mechanism for public
tasks should be focused on maintaining and improving these freedoms and human
rights which determine the level of all people36.
Certainly, „good governance and good administration are loaded with ethical
values and principles, such as trust, transparency, responsibility, accountability,
responsiveness and participation”37. Thus, it will be better for us to use the same
pattern for identifying some constitutive elements even for this concept of good
administration, instead of trying in vain to create a rigid definition of this concept.
Actually, this is the method used by the Council of Europe or the European Union
to identify the defining elements of good administration. Thus, in the Code of good
32 E. Slabu, Good administration in the European administrative space, op. cit., p. 8.
33 Ibidem.
34 S. Mazur, Paradoxes of Polish public administration reformation proc ess, in A. Bosiacki, H. Izdebski,
A. Nelicki, & I. Zachariasz (Eds.), New public management and public governance in Poland and in
Europe, p. 64, 2010. Warszawa, quoted by A. Lipska-Sondecka, Problems with right to good
administration in the context of new solutions, Polish Political Science Yearbook no. 1/2015, p. 198,
available on: https://www.ceeol.com/search/article-detail?id=409396.
35 A. Lipska-Sondecka, op. cit., p. 199.
36 Ibidem.
37 O.-P. Viinamäki, R. Ikola-Norrbacka, A. Salminen, The control of corruption in Finland,
Administration and Public Management Review no. 09/2007, p. 84, available on:
https://www.ceeol.com/search/article-detail?id=90618.
96 OANA ŞARAMET
administration adopted by Committee of Ministers from Council of European38 are
identified these principles: lawfulness, equality, impartiality, proportionality, legal
certainty, taking action within a reasonable time limit, participation, respect for
privacy, transparency. This Code also mentioned some rules governing
administrative decisions39, and some rules regarding appeals40.
In order to achieve good administration, a Code of good administrative
behaviour is in force at European Union41, a code that establishes a set of principles
that should guide European civil servants in fulfilling their attributions. Such
principles are, for example: lawfulness, absence of discrimination, proportionality,
absence of abuse of power, impartiality and independence, objectivity, fairness,
courtesy, duty to state the grounds of decisions, legitimate expectations,
consistency, and advice, reply to letters in the language of the citizen,
acknowledgement of receipt and indication of the competent official, obligation to
transfer to the competent service of the institution, right to be heard and to make
statements, reasonable time-limit for taking decisions, indication of appeal
possibilities, notification of the decision. About this code, Emily O'Reilly, the
European Ombudsman, stated that: „it is designed to support those efforts by
sharing best practice and by promoting — within the institutions and beyond — a
harmonised, citizen-focused European administrative culture that both listens to,
and learns from, its interactions with citizens, businesses and stakeholders. The
code provides guidance on practical steps towards greater effectiveness,
transparency and accountability and my office is always happy to provide
additional informal advice if necessary...”42. This Code includes the general
principles of good administrative behaviour43, which applies to all relationships
between institutions and their administrations and the general public, and which,
in our opinion, should be at least a starting point for identifying specific ones at
national level and which should govern the activity of the public administration at
any level.
In our national legislation, by the Administrative Code currently in force44 the
ordinary legislator has identified, through Art. 6 - 13, not only the general
principles applicable to public administration, but, by the provisions of Art. 368, a
series of principles that govern the professional conduct of civil servants and
labour contract servants from public administration, such as: the supremacy of the
38 Committee of Ministers of Council of Europen, Recommendation CM/Rec(2007)7 of the Committee
of Ministers to member states on good administration, op. cit., Art. 2 – 10.
39 Idem, Art. 11 – 21.
40 Idem, Art. 22 – 23.
41 This code is available on: https://www.ombudsman.europa.eu/ro/publication/ro/3510.
42 E. O’Reilly, Declaration of the European Ombudsman, available on: https://www.ombudsman.
europa.eu/ro/publication/ro/3510.
43 These principles were specified in those mentioned above.
44 Government Emergency Ordinance no. 57 from 3 July 2019 regarding the Administrative Code,
published in the Official Journal of Romania, Part I, no. 555 from 5th of July 2019.
The right to good administration – is the constitutional regulation necessary 97
Constitution and the law, ensuring equal treatment of citizens in front of public
authorities and institutions, professionalism, impartiality and independence, moral
integrity, freedom of thought and expression, honesty and fairness, openness and
transparency, accountability and legal liability.
Regarding these provisions we consider that it is appropriate to make the
following observations. Thus, these principles do not represent, to a large extent,
and with the exception of the principles mentioned in letter j), novelty elements
because they were established by Law no. 7/2004 regarding the Code of conduct of
civil servants (law repealed when the Administrative Code came into force), before
the Administrative Code came into force. Unlike the Administrative Code, but
naturally considering the technical aspects of elaboration of normative acts, Law
no. 7/2004, identifies, by the provisions of Art. 2, the purposes that determined the
legislator to adopt such a code by a normative act with the primary legal force of a
law, among them being the one of ensuring a good administration in achieving the
public interest. Although some of these principles can be mentioned when we are
talking about of the public dignitaries - the local elected officials, as honesty and
fairness that are provided, for example, by Art. 224 of the Administrative Code, we
consider that all the principles should govern the activity of all categories of
employees from public administration, regardless of whether they are civil
servants, labour contract servants or even public officials. We are stating this
because the legal valuation of some is different. Thus, for example, if in the case of
civil servants and labour contract servants the lawfulness is seen as a principle, in
the case of local elected officials this is considered to be just an obligation. On the
other hand, if we consider that the lawfulness – principle which affect all the type
of laws, summarizing the legislator's way to express about it, seems redundant to
us anyway, because any one of us as citizens of this state has the fundamental duty
to respect the Constitution, its supremacy and the laws (In this context we are
using the concept of law in a broad sense – lato sensu, namely that of any
normative act) provided by Art. 1, paragraph (5) of the Constitution.
In our opinion, it would be more opportunely and appropriate to establish by
law a set of principles to govern the activity of the public administration without
distinguishing taking into consideration criteria as quality of work or professional
qualification of those who have to fulfill their public or professional activities, as it
is laid down by law at European Union level.
2. The right to good administration
Romanian Constitution45 does not provide, expressis verbis, the right to good
administration, but taking into consideration the quality of membership of the
45 For example, the Constitution of Finland is referring indirectly to the good governance in the
Art. 124 by stating that „a public administrative task may be delegated to others than public
98 OANA ŞARAMET
European Union that Romania has, and in accordance with the provisions of art.
148 paragraph (2) of the Constitution, which regulates that "the provisions of the
constituent treaties of the European Union, as well as the other mandatory
community regulations shall take precedence over the opposite provisions of the
national laws, in compliance with the provisions of the accession act", we consider
that, for the moment, the right to good administration can be invoked even at
national level. We sustain this point of view according to which "the right to good
administration reflects a general principle of Union law"46, as the case-law of the
Court of Luxembourg reveals, to support that this right and principle should also
govern our public administration47.
The right to good administration is enshrined in the European Union by
Art. 41 48 of the Charter of Fundamental Rights of the European Union, European
Legislators establishing in this article the most important elements of good
administration and, implicitly, of its correlative right. The right to good
administration from the „citizens’ rights” chapter of Charter of Fundamental
Rights is one of these rights that, together with the non-discrimination clause in
Art. 18 TFEU, the right to access to documents and the provisions on democratic
principles introduced by Lisbon Treaty into Art. 9-12 TEU, clearly strengthen on
authorities only by an Act or by virtue of an Act, if this is necessary for the appropriate performance
of the task and if basic rights and liberties, legal remedies and other requirements of good governance
are not endangered”. This constitution is available on: https://www.constituteproject.org/
constitution/Finland_2011?lang=en. But majority of the constitutions of EU member states are
referring indirectly to good administration by providing regulations about the powers and the duties
of the authorities from public administration.
46 Court of Justice of European Union, Judgment of the Court (Fourth Chamber), 8 May 2014, H.N. v
Minister for Justice, Equality and Law Reform and Others (C-604/12, ECLI:EU:C:2014:302), paragraph. 49,
published in the electronic Reports of Cases (Court Reports - general).
47 Indeed, an indication in this regard also comes from the Constitutional Court of Romania
which, by Decision no. 12/2013, it ruled that “regarding the provisions of art. 41 of the Charter of
Fundamental Rights of the European Union, regarding the right to good administration”, these
European provisions can be invoked in the accordance to Art. 148 from Constitution, and Art. 6
paragraph (1) of the Treaty on European Union. See Constitutional Court of Romania, decision no.
12/2013 on objection as to the unconstitutionality of Art. 6 paragraph (4), Art. 10 paragra ph (2), Art. 15
paragraph (5), Art. 17 paragraph (1) letter d) şi e), Art. 88 paragraph (1), Art. 91 and of Art. 93^1 from
Law no. 504 from 11 July 2002 – Law of audio-visual field, published in the Official Journal of Romania,
Part I, no. 114 from 28th of February 2013.
48 The provisions of Art. 41 of this Charter provide that: 1. Every person has the right to have his
or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of
the Union. 2. This right includes: the right of every person to be heard, before any individual measure
which would affect him or her adversely is taken; the right of every person to have access to his or her
file, while respecting the legitimate interests of confidentiality and of professional and business
secrecy; the obligation of the administration to give reasons for its decisions. 3. Every person has the
right to have the Community make good any damage caused by its institutions or by its servants in
the performance of their duties, in accordance with the general principles common to the laws of the
Member States. 4. Every person may write to the institutions of the Union in one of the languages of
the Treaties and must have an answer in the same language.
The right to good administration – is the constitutional regulation necessary 99
important dimension of EU citizenship49. If we were to extrapolate the ones
mentioned here, but taking into consideration all those mentioned above, also
emphasizing that both good governance and good administration are
determinable and not indefinite concepts, we consider that this right to good
administration must be enshrined, expressis verbis, in our fundamental law, as other
authors already claim50.
In this context, we find it pertinent and appropriate to argue that "the right to
good administration requires clear and stable legal provisions, efficient public
management, respect for the fundamental rights of people by public authorities,
respect for the principles applicable to a modern public administration (lawfulness
and transparency of the activity of public authorities, equality of all persons in
relation with public authorities, impartiality and proportionality of the actions of
public authorities, respect of the reasonable term in fulfilling the activity of public
authorities, respect of the private life of people), approval of clear and accessible
administrative procedures, internal and external control of activities carried out by
public administration authorities, combating corruption, but also efficiency and
effectiveness in the activity of public administration, through a performant public
management”51.
Conclusions
In a state where democracy and the rule of law are still learned mostly by the
rulers, as is our state, where the public administration and civil servants, but also
the public dignitaries, through which public administration is realised, still learn
49 P. Craig, G. de Búrca, EU Law. Text, Cases, and Materials, fifth edition, New York: Oxford, 2011,
p. 852. By more recent judgements, the CJEU has begun to analyse the possible violation of the right to
good administration. Thus, in a recent case-law, the General Court stated that „the party who made a
request for assistance, as the presumed victim, must be granted procedural rights separate from the
rights of defence referred to in Article 48 of the Charter of Fundamental Rights, which are not as
extensive as those rights and which are, ultimately, covered by the right to good administration, as
now provided for by Article 41 of the Charter of Fundamental Rights. Thus, in order for the right to
good administration to be observed, the party who made the request for assistance must necessarily,
in accordance with Article 41(2)(a) of the Charter of Fundamental Rights, be properly heard befo re the
decision rejecting the request for assistance is adopted by the appointing authority or the AECE”.
Court of Justice of European Union, Judgment of the General Court (First Chamber, Exte nded Composition),
28 June 2018, H.F. v European Parliament (T-218/17, ECLI:EU:T:2018:393), paragraph 70 and 74,
published in the electronic Reports of Cases (Court Reports - general).
50 V. Vedinaş, Some considerations regarding the Draft Law on the revision of the Romanian
Constitution, Revista de Drept Public no. 3/2013, p. 23, or E. Slabu, Does good administration represent a
basic concept for the public administration reform in Romania?, Scientific Annals of Alexandru Ioan Cuza
University of Iaşi, Juridical Sciences Series, no. 2/2016, p. 381.
51 E. Slabu, Good administration in the European administrative space, Summary of the PhD Thesis, p.
5, available on: https://drive.google.com/file/d/0B8QmaaRXFXpKQ0pfMU5nb0FfYmM/view.
100 OANA ŞARAMET
that they have to work just to serve the interests of citizens, we consider that the
right to good administration should become a new right in our Constitution. This
way, we can contribute even more to make our authorities to understand that
governance and administration has to be carried out exclusively for the benefit of
the people.
The consecration of this right, appreciated by us as one of the guarantee rights,
with the right of the person aggrieved by a public authority and the right of
petition, all of them being a second generation rights, should be done by
identifying all its defining elements, in an exhaustive way, as we have identified
them in the ones mentioned above.
We argue our last mentioned point of view by pointing out the fact that many
of defining elements of good administration are not settled, expressis verbis, by our
Constitution, although they are veritable principles, in which case it is necessary to
conclude about their constitutional consecration by interpreting the constitutional
provisions, as it is, for example, the case of the principle of proportionality.