Good Administration and Good Governance as the Key Elements of the European Administrative Space

1. Good Administration and Good Governance as the Key Elements of the European Administrative Space EU Administrative Law and its impact on the process of public administration reform and integration into the European Administrative Space of SEE countries, Zagreb, 4-5 September 2014 Professor Dr. Ivan Koprić, University of Zagreb

2. European Administrative Space • Administrative convergence of traditional models of PA (Westminster, Weberian, Napoleonic, Scandinavian, East-European) • Equal or similar level and quality of public services • A set of values, social expectations, governance principles and administrative standards defined by law and supported by the appropriate procedures and accountability mechanisms • Several meanings: geographic, normative, cultural, political, sociological, comparative-administrative (Koprić et al., 2012) • Driven by EU, CoE, OECD-Sigma, & other European players • Facilitated by civil servants (they learn mutually and share best practices) • Fuelled by the expectations of citizens and various societal actors • Interplay of top-down and bottom-up Europeanization

3. European Administrative Space • The principles of good European governance have been codified in many documents of various legal significance, from legally binding to less strict, policy, institutional and professional documents • Legal and administrative standards comprise hard law, case (court) law, and soft law (codified standards, best practices, etc.) • Basic EAS principles are: the rule of law, openness, participation, accountability, effectiveness, coherence, proportionality and subsidiarity (European Governance – A White Paper, 2001) • Harmonization policy and mutual adjustments in many administrative and policy fields (adjustment, not homogenizing Europeanization! Page) • Some of them are: services of general interest, local self-government, protection of human rights, new system of protecting citizens’ rights in administrative procedures and administrative justice, professional services and self-organization of professions, regional policy, agricultural p., monetary p., youth p., environmental p., ICT and information society development p., asylum p., etc.

4. European Administrative Space • Convergence is slow, but constant • Europeanization of policy formulation vs. Europeanization of policy implementation: EU is a kind of “policy-making state” (or integration network) with increasingly integrated administration • EU “integrated administration” is competent for the implementation of common and harmonized EU public policies and EU acquis communautaire; it has a certain role in policy design, too • EU “integrated administration” is structured as a network, with the EC and the EU agencies (“EU bureaucracy”) as the network nodes and with national public administrations as the main field force • Apart from vertical line (EC-EU agencies-national administrations), there are multiple horizontal networks of cooperationbetween national bodies and other actors in charge of information sharing, planning, coordination, regulation (independent regulators) and implementation

5. Good Governance • Governance in theoretical sense (according to Frederickson, 2005): • continuum with hierarchical government and horizontal governing (network type) as the opposite sides / introduction of public governance within hierarchical systems • governance has actually the same meaning as public administration • types (showing the stages in departure from the vertical, government type of managing public affairs): • Inter-jurisdictional g. (example: environmental i-j.g.): voluntary participation of several jurisdictions/administrative organizations/ministries in specific policy area • third-party g.: the first party is elected democratic legislative authority; the second is executive and public administration; the third party can be every subject outside the first and second, including municipalities, other public and private organizations and persons; third-party governance is based on contracts or grants • Public nongovernmental g.: based on actors outside government that are engaged in policy making; they have substantive autonomy and represent the interests or well-being of citizens

6. Good Governance • Governance in theoretical sense: • Governance as a type of administrative doctrine: • Administrative doctrine: a system of ideas about desirable ways of operating and prescriptions about good practices, grounded on dominant values and systematised experiences, comprising standards with regard to organisation, functioning, regulation, management, etc. in public administration (values are the main pillars of administrative doctrines) • The new public management (NPM; 1980s): economic values (economy, efficiency, effectiveness, public entrepreneurship, quality of public services, marketization, support to economic development, etc.) • Good governance (1990s): democratic, social & legal values (accountability, transparency, openness, legitimacy, human rights, the rule of law, the role of citizens and civil society, etc.) • Neoweberian state (2000s, Eastern Europe): stronger position of administrative law, lawfulness, efficiency, professionalism, administrative education, depoliticisation, written communications…

7. Good Governance • Purposes of insisting on good governance: • Strengthening of the institutional capacity – administrative capacity (implementation) + policy capacity (analysing and making public policies) • Renewal of democratic political legitimacy (involvement and empowering of citizens, local governments, and other actors; informationsharing, cooperation, consultation) • Good governance is a combination of democratic and effective governance (UNDP, 2002) • Principles of good EU governance: openness, participation, responsibility, effectiveness, coherence (EC, 2001) • In practical terms, because of its normative nature, good governance (as an administrative doctrine) serves as the benchmark for the evaluation of administrative functioning in EU member states and in candidate countries • Codification and advocating of good EU governance principles, legal and administrative standards and best administrative practices have to be assigned to the EU Ombudsman

8. European Ombudsman • The new institution was enabled by the 1992 Maastricht Treaty (Art. 195/4 TEEC, Art. 107d/4 TEEAEC) and regulated by the Decision of the EP from 1994 (2002; 2008) • Ombudsman is appointed by the EP and has the same seat (Strasbourg) and duration of mandate (5 y.) as the EP • Jacob Söderman (1995-2003), Nikiforos Diamandouros (2003-2013), Emily O’Reily (2013-) • The European Network of Ombudsmen (est. in 1996) consists of national and regional (59) ombudsmen and similar bodies (MS, candidates, Iceland, Norway, E.Omb., Committee on Petitions of the EP); almost a hundred offices in 35 countries • Inquiries into maladministration in the functioning of the Union’s institutions, bodies, offices and agencies (not: judicial role of the courts); ex officio and upon complaint inquiries; everyone can act as a complainant • The Ombudsman has established a broad concept of maladministration, encompassingbreaches of legality, fundamental rights and GG principles • 1993-2010: 36,000 complaints; 3,800 inquiries

9. European Ombudsman and Good Administration • Investigation of maladministration cases & promotion of new administrative culture that stresses service-orientation in the EU institutions and bodies • In 2012, Ombudsman elaborated five public service principles for the EU civil service: commitment to the EU and its citizens; integrity; objectivity; respect for others; transparency (to promote good administration and good governance) • The European Code of Good Administrative Behaviour was drafted by the EO and adopted in 2001 by the EP; Ombudsman Söderman accentuated the importance of good administration for good (democratic and legitimate) governance • The Charter of Fundamental Rights was prepared at the same time, with the rights to good administration (Art. 41), access to documents (Art. 42), and right to petition (Art. 44) &to refer to the E.Ombudsman (Art. 43) • The Code has to further elaborate the meaning of the right to good administration from the Charter • The EO has tried to define what good administration is, because maladministration is opposite of good administration; failure to act in accordance with binding principles and rules

10. Code of Good Administrative Behaviour Three groups of principles: • General principles of administrative law and public administration: lawfulness (4), non-discrimination (5), proportionality (6), absence of abuse of power (7), impartiality and independence (8), data protection (21), access to information and documents (22, 23), right to complain to the Ombudsman (26) • Principles of administrative functioning and procedure: objectivity (9), legitimate expectations and consistency (10), fairness of treatment (11), right to use the language of the citizen (13), acknowledgement of receipt and indication of the competent official (14), obligation to transfer to the competent service of the institution (15), right to be heard and to make statements (16), reasonable time-limit for decision-making (17), duty to state grounds of decision (18), indication of the possibility of appeal (19), notification of the decision (20) • Service ethics standards: courtesy (12), keeping records on activities and correspondence (24), the need for publicity of the Code (25), duty to review operation (27)

11. The Code and Further Developments • There is a system of basic principles of good administration and good governance codified in the Code of Good Administrative Behaviour and regulated by the Charter of Fundamental Rights • The system is generally applicable to all situations, types of acts, bodies, and policy phases (from policy making to the policy implementation) • The work and advocacy of the European Ombudsman and of the Parliament resulted in the preparation of the first European Law of Administrative Procedure; the EP adopted, on 15th January 2013, the Resolution (2012/2024-INL) with recommendations to the E. Commission on a Law of Administrative Procedures of the EU; it is under scrutiny of the EC (+ a group of scientists work on its elements); the E. Omb. influenced necessary improvements in relevant provisions of the Lisbon Treaty • The resolution stresses that the Law could strengthen a spontaneous convergence of national administrative law and thus strengthen the process ofEU integration in the Union as a whole • The main pillars of the new Law: lawfulness, non-discrimination and equal treatment, proportionality, impartiality, consistency and legitimate expectations, respect for privacy, fairness, transparency, and efficiency and service

12. The Code’s Influence in the National Settings • The Code covers situations when national authorities serve as the parts of European integrated administration (besides those with EU bodies’ involvement) • Its idea of harmonizing prevention and healing maladministration has been spreading throughout Europe, thanks to the European Network of Ombudsmen, benchmarking, conditionality policy with regard to the candidate countries, sharing best practices, and other channels • Efforts of other European actors connected with the right to good administration should not be neglected: CoE Recommendation Rec(2007)7 on good administration; case law of the European courts, etc. • Other instruments of administrative convergence: Directive 2006/123/EC on services in internal market (points of single contact; ICT; positive fiction), etc. • Croatia has tried to acquire the European standards and to effectively function within the EAS; so far, its approach can be identified as predominantly formalistic, legalistic, normative and bureaucratic, with a lot of ignorance, reluctance and hesitations; it seems that we still feel fear of Europeanization

13. Croatia within the EAS • Europeanization phase started as early as in 2001 • OECD-Sigma support and monitoring: more than 40 reports • Only EU invested about 1.6 billion € in PAR in Croatia • Other institutions and countries added significant amounts and efforts • EC issued ten progress reports • Main fields of Europeanization: state administration, local and regional self-government, services of general interest, system of legal protection of citizens, administrative education • Some high-lights: agencification, Europeanization of many public policies, openness and transparency, anticorruption and public sector ethics, independent regulation of services, liberalisation, privatization and commercialization of services, regional development structure, administrative simplification, two-tier administrative justice, financial control over public money, in-service training and education, etc. • Precise empirical research is still needed