E-Book, Englisch, Band 7, 575 Seiten, Format (B × H): 153 mm x 227 mm
Reihe: Luxemburger Juristische Studien - Luxembourg Legal Studies
E-Book, Englisch, Band 7, 575 Seiten, Format (B × H): 153 mm x 227 mm
Reihe: Luxemburger Juristische Studien - Luxembourg Legal Studies
ISBN: 978-3-8452-6798-2
Verlag: Nomos
Format: PDF
Kopierschutz: Adobe DRM (»Systemvoraussetzungen)
This thesis undertakes an in-depth comparative assessment of the protection of good administration as a Charter’s right and as a GPL.
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1;Cover;1
2; Introduction;32
2.1; 1. Aims of the present study;35
2.2; 2. Approach of the thesis. Methods and sources;40
2.3; 3. Existing literature on the principle of good administration. Delimitation and input of the present contribution;42
2.4; 4. Outline of the thesis;47
3; Part 1. Background to the General Principle of Good Administration;50
3.1; I. Problematic aspects stemming from the confluence of the various sources of fundamental rights;50
3.1.1; A. The (problematic) coexistence of fundamental rights protected as both GPL and CFR rights;50
3.1.1.1; 1. Hierarchical approach;55
3.1.1.2; 2. Pluralistic approach;58
3.1.2; B. An alternative approach: the “lexical order of review”;60
3.1.3; C. Conclusions on the problematic aspects stemming from the confluence of GPL and CFR rights;63
3.2; II. Case study of the right to good administration as a GPL and as a CFR right;65
3.2.1; A. Development of the right to good administration into a GPL and a CFR right respectively;66
3.2.2; B. Content of the right to good administration in the EU legal order;73
3.2.2.1; 1. “Judicialisation” of the Administration;80
3.2.2.2; 2. Good administration as a counterweight to the discretionary powers of the administration: administrative efficiency versus individual’s procedural protection;89
3.2.2.3; 3. Good administration within EU “composite” administrative proceedings;92
3.2.2.3.1; a. Overview of the EU integrated administrative system and classification of the various “composite” administrative procedures;94
3.2.2.3.1.1; (1) The protection of the right to good administration in the context of “composite” proceedings where a Member State is implementing an EU act with input from one or more EU administrative authorities;100
3.2.2.3.1.2; (2) The protection of the right to good administration in the context of “composite” proceedings where a final decision is taken by an EU administrative authority on the basis of input from Member States’ authorities;104
3.2.2.3.1.3; (3) The protection of the right to good administration in the context of EU law implementation by the Commission with the input of the various “composite” Comitology committees;108
3.2.3; C. The scope of protection of good administration as a GPL and as a CFR right;111
3.2.3.1; 1. The personal scope of protection of good administration as a GPL and as a Charter’s right;111
3.2.3.1.1; a. Good administration at the confluence of its “subjective” and “objective” facets;112
3.2.3.1.2; b. Good administration: “principle” or “right” for the purposes of Articles 51(1) and 52(5) CFR?;118
3.2.3.1.3; c. Good administration: addressed to “every person” or merely to “EU Citizens”?;124
3.2.3.1.4; d. Good administration: a tool for protecting interested third parties in administrative proceedings?;126
3.2.3.2; 2. The material scope of protection of good administration as a GPL and as a Charter’s right;133
3.2.3.3; 3. The institutional scope of protection of good administration as a GPL and as a Charter’s right;136
3.2.3.3.1; a. The institutions, bodies, offices and agencies of the Union to which the right to good administration is addressed;137
3.2.3.3.2; b. The absence of the EU Member States from the institutional scope of application of Article 41 CFR and the more extensive protection provided under the GPL status of the notion;138
3.2.4; D. Conclusions on the right to good administration as a GPL and as a CFR right;145
4; Part 2. The Substance of the Right to Good Administration;154
4.1; I. “The right to be heard” as a sub-component of good administration;154
4.1.1; A. The right to be heard in the EU legal order and its interrelation with the right to good administration;155
4.1.1.1; 1. Roots and development of the right to be heard in the EU legal order;155
4.1.1.2; 2. The right to be heard as part of the defence rights and as a sub-element of the right to good administration respectively: interrelation between these two “umbrella” notions;159
4.1.2; B. The codification of the right to be heard in Article 41 CFR: the protection of the right to be heard as a GPL and as a Charter’s right;161
4.1.2.1; 1. The personal scope of protection of the right to be heard as a Charter’s right and as a GPL;161
4.1.2.1.1; a. The “initiated against” condition for the purposes of the right to be heard as a Charter’s right and as a GPL;162
4.1.2.1.2; b. The “adversely affected” condition for the purposes of the right to be heard, as a Charter’s right and as a GPL;168
4.1.2.1.2.1; (1) The right to be heard of an interested third party in administrative proceedings: criteria;169
4.1.2.1.2.2; (2) What does the “adversely affected” requirement mean in practice? The example of the measures by which OLAF transmits information to the national authorities;172
4.1.2.2; 2. The material scope of protection of the right to be heard as a Charter’s right and as a GPL;176
4.1.2.3; 3. The institutional scope of protection of the right to be heard as a Charter’s right and as a GPL;179
4.1.3; C. The right to be heard as part of the right to good administration in the EU composite administrative proceedings;181
4.1.4; D. Conclusions on the interrelation between the right to be heard and good administration;187
4.2; II. “The right of access to the file/documents” as a sub-component of good administration;193
4.2.1; A. The right of access to the file and the right of access to documents in the EU legal order and their respective interrelation with the right to good administration;194
4.2.1.1; 1. The respective interconnections between the right of access to the file/the right of access to documents and the right to good administration;195
4.2.1.1.1; a. Interlinks between the right of access to the file and the right to good administration;195
4.2.1.1.1.1; (1) Roots and development of the right of access to the file in the EU legal order;195
4.2.1.1.1.2; (2) The right of access to the file as part of the defence rights and as a sub-component of the right to good administration: status of the notion;199
4.2.1.1.1.2.1; (i) The right of access to the file and the the rights of the defence;199
4.2.1.1.1.2.2; (ii) The right of access to the file and good administration;201
4.2.1.1.2; b. Interlinks between the right of access to documents and the right to good administration;203
4.2.1.1.2.1; (1) Roots and development of the right of access to documents in the EU legal order;203
4.2.1.1.2.2; (2) The status of the right of access to documents;205
4.2.1.1.2.3; (3) Interrelation between the right of access to documents and the right of access to the file;208
4.2.1.1.2.3.1; (i) The (polemic) articulation between the right of access to documents and the right of access to the file;208
4.2.1.1.2.3.2; (ii) The articulation between the right of access to documents and the right of access to the file at the confluence of their (respective secondary legislations’) sources;211
4.2.1.1.2.3.3; (iii) The right to good administration as a means to ensure the articulation between conflicting legislations – case study of Regulation 1049/2001 v Regulation 45/2001;217
4.2.1.1.2.4; (4) The right of access to documents and the right to good administration;223
4.2.2; B. The codification of the right of access to the file and the right of access to documents in the Charter: their respective protection as GPL and as CFR rights;230
4.2.2.1; 1. The personal scope of protection of the right of access to the file and the right of access to documents: personal scope in the CFR v its protection as a GPL;230
4.2.2.2; 2. The material scope of protection of the right of access to the file and the right of access to documents: material scope in the CFR v material scope stemming from the GPL status;233
4.2.2.3; 3. Institutional scope of protection: the right of access to the file and the right of access to documents: institutional scope in the CFR v institutional scope flowing from the GPL status;236
4.2.2.3.1; a. The protection of the right to of access to the file and the right of access to documents by the institutions, bodies, offices and agencies of the Union;237
4.2.2.3.2; b. The protection of the right of access to the file and the right of access to documents by the EU Member States;240
4.2.3; C. The right of access to the file and the right of access to documents in the EU composite administrative proceedings;244
4.2.4; D. Conclusions on the interrelation between the right of access to the file / the right of access to documents and good administration;253
4.3; III. “The obligation of the administration to give reasons for its decisions” as a sub-component of good administration;260
4.3.1; A. The obligation of the administration to give reasons for its decisions in the EU legal order and interrelation with the right to good administration;261
4.3.1.1; 1. Roots and development of the obligation of the administration to give reasons for its decisions in the EU legal order;261
4.3.1.2; 2. The obligation of the administration to give reasons for its decisions and the rights of the defence;265
4.3.1.3; 3. The obligation of the administration to give reasons for its decisions and the right to effective judicial review: the “statement of reasons” requirement at the confluence of the administrative and judicial levels;270
4.3.1.4; 4. The obligation of the administration to give reasons for its decisions and the right to good administration;272
4.3.2; B. The protection of the obligation of the administration to give reasons for its decisions as a GPL v its codification in Article 41 CFR;275
4.3.2.1; 1. The personal scope of protection of the administration’s obligation to give reasons for its decisions under the CFR v its protection as a GPL;276
4.3.2.2; 2. The material scope of protection of the administration’s obligation to give reasons for its decisions under the CFR v its protection as a GPL;278
4.3.2.3; 3. Institutional scope of protection of the administration’s obligation to give reasons for its decisions under the CFR v its protection as a GPL;282
4.3.3; C. The obligation of the administration to give reasons for its decisions as part of the right to good administration in composite administrative proceedings;288
4.3.4; D. Conclusions on the interrelation between the obligation of the administration to give reasons for its decisions and good administration;291
4.4; IV. “The right to languages” as a sub-component of good administration;295
4.4.1; A. The right to languages at the confluence of its “subjective” and “objective” facets and its interrelation with the right to good administration;298
4.4.1.1; 1. Roots and development of the right to languages in the EU legal order in its various “objective” facets;298
4.4.1.2; 2. Roots and development of the right to languages as a “subjective” right of individuals in the EU legal order;302
4.4.1.3; 3. Language rights and the right to good administration;307
4.4.2; B. The protection of language rights in the EU Courts’ case-law v its protection as a sub-element of the right to good administration in Article 41 CFR;309
4.4.2.1; 1. The personal scope of protection of the right to languages in the EU Courts’ case-law v its protection as a sub-element of the right to good administration in Article 41 CFR;310
4.4.2.1.1; a. Language rights of EU minorities;310
4.4.2.1.2; b. Language rights of EU officials;313
4.4.2.2; 2. The material scope of protection of the right to languages in the EU Courts’ case-law v its protection as a sub-component of the right to good administration in Article 41 CFR;315
4.4.2.3; 3. The institutional scope of protection of the right to languages in the EU Courts’ case-law v its protection as a sub-element of the right to good administration in Article 41 CFR;317
4.4.3; C. The protection of language rights in the context of composite administrative proceedings;321
4.4.3.1; 1. The protection of individuals’ language rights at the crossroads of two or more EU Member States;321
4.4.3.2; 2. The protection of language rights in the context of EU law implementation by the institutions of the Union following the advice of the various Comitology Committees;325
4.4.4; D. Conclusions on the interrelation between the right to languages and good administration;327
4.5; V. “The right to damages” as a sub-component of good administration;332
4.5.1; A. The right to damages and its interrelation with the right to good administration;333
4.5.1.1; 1. Roots and development of the right to damages in the EU legal order and interlink with the right to good administration;335
4.5.1.1.1; a. The status of the right to damages;335
4.5.1.1.2; b. “Fault” requirement v “general principles common to the laws of the Member States” as a pre-condition to confer a remedy for infringement of the principles of good administration;337
4.5.1.2; 2. A right to damages for infringement of the principles of good administration in the EU Courts’ case-law;341
4.5.1.2.1; a. Breach of the principle of good administration conferring a right to reparation upon individuals;341
4.5.1.2.2; b. Infringement of the various sub-components of the right to good administration conferring a right to reparation upon individuals;347
4.5.1.2.2.1; (1) Breach of the “reasonable time” requirement conferring a right to reparation upon individuals;348
4.5.1.2.2.2; (2) Breach of the “impartiality” requirement conferring a right to reparation upon individuals;351
4.5.1.2.2.3; (3) Breach of the “confidentiality” requirement conferring a right to reparation upon individuals;353
4.5.1.2.2.4; (4) Breach of the “right to be heard” conferring a right to reparation upon individuals;356
4.5.1.2.2.5; (5) Breach of the “statement of reasons” requirement conferring a right to reparation upon individuals;358
4.5.1.3; 3. The “contractual” liability of the Union for breach of the right to good administration;360
4.5.2; B. Protection of the right to damages under the EU Courts’ case-law v its protection as a sub-component of the right to good administration in Article 41 CFR;370
4.5.2.1; 1. Personal scope of protection of the right to damages in the EU Courts’ case-law v its protection under the Charter;370
4.5.2.1.1; a. Liability of the Union for the acts of its civil servants in the performance of their duties;372
4.5.2.1.2; b. Liability of the Union for damage caused to its own civil servants – as a consequence of the violation of their right to good administration;373
4.5.2.2; 2. Material scope of protection of the right to damages in the EU Courts’ case-law v its protection under the Charter;375
4.5.2.3; 3. Institutional scope of protection of the right to damages in the EU Courts’ case-law v its protection under the Charter;379
4.5.3; C. The right to damages as part of the right to good administration in the EU composite administrative proceedings;383
4.5.4; D. Conclusions on the interrelation between the right to damages and good administration;387
4.6; VI. “The principle of care” as a sub-component of good administration;393
4.6.1; A. The principle of care in the EU legal order: origins, definitions, confusing terminology and status;395
4.6.1.1; 1. Respective interrelations between the right to good administration and the principles of “care”, “diligence” and “solicitude”;399
4.6.1.1.1; a. Principle of care: definition, scope of application and interrelation with the right to good administration;399
4.6.1.1.2; b. Principle of diligence: definition, scope of application and interrelation with the right to good administration;402
4.6.1.1.3; c. Principle of solicitude: definition, scope of application and interrelation with the right to good administration;406
4.6.1.2; 2. Status of the “individuals’ right to have their affairs handled impartially, fairly and within a reasonable time”/ principles of “care”/“diligence”/“solicitude”;411
4.6.2; B. The codification of the principle of care in Article 41(1) CFR: analysis of the “impartiality”, “fairness” and “reasonable time” requirements as sub-components of good administration;413
4.6.2.1; 1. The principle of impartiality;414
4.6.2.1.1; a. Origins and development of the “impartiality” requirement in the EU legal order;414
4.6.2.1.2; b. The respect of the “impartiality” requirement in the context of administrative proceedings;419
4.6.2.1.3; c. Status of the “impartiality” requirement and interrelation with the right to good administration;423
4.6.2.2; 2. The principle of fairness;428
4.6.2.2.1; a. Fairness: origins and development in the EU legal order;428
4.6.2.2.2; b. Status of the “fairness” principle and its interrelation with the right to good administration;432
4.6.2.3; 3. Reasonable time;435
4.6.2.3.1; a. Reasonable time: origins and development in the EU legal order;436
4.6.2.3.1.1; (1) “Reasonable time” determined by the circumstances of the case: the criteria serving to establish the reasonableness of a time-frame;438
4.6.2.3.1.2; (2) Some examples of “reasonable time” in EU administrative proceedings;440
4.6.2.3.2; b. Should a “global assessment” of the time-frames of the various administrative and judicial proceedings supplement the “piecemeal” way of assessing the reasonableness of the respective procedures’ lengths?;442
4.6.2.3.3; c. Status of the “reasonable time” requirement and interrelation with the right to good administration;454
4.6.3; C. The “individuals’ right to have their affairs handled impartially, fairly and within a reasonable time” / the “principle of care” in composite administrative proceedings;463
4.6.4; D. Conclusions on the interrelation between the principle of care and good administration;464
5; Final Conclusions;470
5.1; 1. The right to good administration at the confluence of its protection as a GPL and as a CFR right;472
5.1.1; a. Personal scope of protection of good administration as a CFR right and as a GPL;473
5.1.2; b. Material scope of protection of good administration as a CFR right and as a GPL;474
5.1.3; c. Institutional scope of protection of good administration as a CFR right and as a GPL;474
5.2; 2. Sub-principles of the right to good administration and implications stemming from their juxtaposition;476
5.2.1; a. Sub-principles of the right to good administration;476
5.2.2; b. Implications stemming from the juxtaposition of the various sub-principles of the right to good administration;478
5.3; 3. Substance of the right to good administration and other interrelated issues which highlight the importance of the right to good administration in the EU legal order;480
5.3.1; a. The right to be heard as a sub-component of good administration;480
5.3.1.1; (1) The rights of the defence and good administration;481
5.3.1.2; (2) The “personal”, “material” and “institutional” scope of the right to be heard as a GPL and as a sub-component of good administration in Article 41 CFR;481
5.3.1.3; (3) The protection of the right to be heard in “composite” administrative proceedings;484
5.3.2; b. The right of access to the file documents as a sub-component of good administration;484
5.3.2.1; (1) The right to good administration as a means to ensure the articulation between the right of access to the file and the general right of access to documents;485
5.3.2.2; (2) The “personal”, “material” and “institutional” scope of the right of access to the file documents Sas a GPL and as a sub-component of good administration in Article 41 CFR;487
5.3.2.3; (3) The protection of the right of access to the file documents in “composite” administrative proceedings;489
5.3.3; c. The obligation of the administration to give reasons for its decisions as a sub-component of good administration;490
5.3.3.1; (1) The “personal”, “material” and “institutional” scope of the obligation of the administration to give reasons for its decisions as a GPL and as a sub-component of good administration in Article 41 CFR;491
5.3.3.2; (2) The protection of the obligation of the administration to give reasons for its decisions in “composite” administrative proceedings;492
5.3.4; d. The right to languages as a sub-component of good administration;493
5.3.4.1; (1) The “personal”, “material” and “institutional” scope of the right to languages as a GPL and as a sub-component of good administration in Article 41 CFR;494
5.3.4.2; (2) The protection of the right to languages in “composite” administrative proceedings;497
5.3.5; e. The right to damages as a sub-component of good administration;497
5.3.5.1; (1) The protection of the right to good administration in contractual matters;498
5.3.5.2; (2) The “personal”, “material” and “institutional” scope of the right to damages as a GPL and as a sub-component of good administration in Article 41 CFR;500
5.3.5.3; (3) The protection of the right to damages in “composite” administrative proceedings;501
5.3.6; f. The principles of care/diligence/solicitude as sub-components of good administration;503
5.3.6.1; (1) The principles of care/diligence/solicitude: definition and scope of application of these particular sub-components of good administration;504
5.3.6.1.1; (i) Principle of care;504
5.3.6.1.2; (ii) Principle of diligence;505
5.3.6.1.3; (iii) Principle of solicitude;506
5.3.6.2; (2) The codification of the principle of care in Article 41(1) CFR: analysis of the “impartiality”, “fairness” and “reasonable time” requirements as sub-components of good administration;507
5.3.6.2.1; (i) The “impartiality” and “fairness” requirements as sub-components of good administration;508
5.3.6.2.2; (ii) The “reasonable time” requirement as sub-component of good administration: need for a “global” assessment of the respective time-frames of the various administrative and judicial steps to a procedure;509
5.4; 4. Final conclusions;511
6; Bibliography;512
6.1; Legal writings;512
6.2; Conferences, Congress and Studies;531
6.3; Table of Case-law (in case number order);532
6.4; Opinions of the Advocates General of the CJEU;543
6.5; Case-law of the General Court of the EU;547
6.6; Case-law of the Civil Service Tribunal of the EU;556
6.7; Case-law of the European Court of Human Rights;558
6.8; National case-law:;559
6.9; Table of International Legal Acts;560
6.10; European Resolutions and Recommendations;560
6.11; Table of Legal Acts of the EU;561
6.12; Regulations;561
6.13; Directives;563
6.14; Decisions;564
6.15; Resolutions, Declarations, Communications, Preliminary Workings and Reports of the EU;565
6.16; Codes of Conduct, Rules and Guidelines of the EU;566
7; Index;568
