Perekotiy, E. V.
Полный текст документа:
Elena V. Perekotiy, Krasnoyarsk State University, L-D
Principles of proper administration: A
brief comparative survey
The importance of comparative law can hardly be overestimated in the present
age of globalisation. Analysis of principles of proper administration in other
countries appears valuable as current administrative reform in Russia
focuses on taking into account foreign experience.
Public administration can be
broadly described as activities promoting the general interest by the
fulfillment of a public task. Adjective ‘public’ usually means
‘governmental’, but nowadays any other person can be also involved into
performing of public function. The term ‘principles of proper administration’ denotes the
minimum standards (e.g. in comparison to principles of ‘good administration’) of
quality of any public activity to be adhered. Principles are usually opposed to legal
rules and are considered to be a special kind of norm (either written or not),
characterised by rather general meaning, whereas legal norms are precise and easily
applied legal provisions. Ronald Dworkin defined principle as “a standard to be
observed, not because it will advance or secure an economic, political or social
situation deemed desirable, but because it is a requirement of justice or
fairness or some other dimension of morality”.
In view of the amplitude of object of analysis, the purpose of this survey
was not to present a complete comparative analysis on the topic, but to provide
the reader with general description of widely recognized principles of proper
administration mainly in the following countries: Belgium, Germany, France,
Netherlands, Russia, United Kingdom, to discover differences and similarities
and to denote progress trends.
1) Principle of legality (Rule of law)
The principle of legality is a fundamental principle of contemporary
(administrative) law systems; it is usually envisaged in Constitutions, e.g.
Article 20 (3) of the Basic Law of Germany, Article 115 of Constitution of
Russia, and is interpreted broadly. Administrative authorities according to the
principle of formal legality have to act on the basis and within the limits
established by law. Substantive rule of law requires the realization of a
just legal order based on definite constitutional principles and material basic
values. Legality can be classified into: internal legality, which
corresponds to the limitations of the administrative powers, external legality,
which is concerned with the regulation of administrative powers, and legality of
derogation, which applies in periods of emergencies. Legality
implies two aspects 1) primacy of law (administrative action is invalid if it
contradicts the law) and 2) requirement of law or positive legality
(administrative powers can be exercised only on the basis of law). In legal
literature it is mentioned that the rule of law has a different meaning in the
European and in the common law tradition, where this notion goes far beyond the
European understanding of it, which only guarantees the correct application of
the constitution by the state authorities.
2) Principle of equality/equal
Principle of equality is also enshrined in Constitution of the countries
concerned (e.g. Article 3 (1) of the Basic Law of Germany, Article 19 of
Constitution of Russia, Article 1 of Constitution of Netherlands), where it is
formulated in a very similar way: “All persons shall be equal before the law”.
As far as sphere of public administration is concerned, it means that in the
same situations citizens should be treated equally by administrative bodies. An
unequal treatment in ‘comparable’ cases can be only possible if it is justified
in an objective and reasonable way.
3) Principle of proportionality
This is one of the most arguable principles in legal literature, there is no
unanimity in legal practice either. In the Netherlands, the
proportionality principle has been codified in the General Administrative Law
Act as following: “adverse consequences of an order for one or more interested
parties may not be disproportionate in relation to the purposes served by the
order”; it implies that in every case a balance of the interests involved must
In French Administrative law principle of proportionality is not regarded as
a general principle, but “it is the implicit rationale in a set of situations in
which the question the judge will examine is: did the administrative authority
balance correctly the advantages of its decision with its disadvantages”,
while the legal status of ‘implicit rationale’ is rather vague.
In Germany, proportionality is an
important unwritten constitutional principle. The constitutional court of
Germany has classified principle proportionality in a wide sense into three
subprinciples of suitability/appropriateness (the question is whether
the particular measure is suitable to realize the goal in question), necessity
(there is no other feasible measure to realize the same goal with the same
degree of restriction of freedom) and proportionality stricto sensu (balance
between the importance of the goal and the impact on freedom of individual). The
last part is sometimes also known as the reasonableness test, which is upheld if
intervention does not excessively burden the individual. Although
this two principles are connected (as well as they intersect with the principle
of equality), the do not loose their independent content.
4) Duty to hear the addressee of a
This principle, deriving from Roman law, is nowadays embedded in the
administrative procedures of all European countries. Based on the assumption
that no measures can be taken against an individual before he had an opportunity
to express his opinion, it aims at protection of an individual and ensuring of
procedural fairness; there should be, however, some (e.g. time) limits in order
to prevent the misuse of this right by citizens. A tendency of the
transformation of administrative due process is noticed by the majority of
scholars, which lies in the increasing of its importance and
availability.Best Section Begin
5) Principle of independence
Taking its roots in the concept of Trias Politica, this principle has been
widely established, and at present does not raise any disputes. According to it,
the administrative authority must found its decision on its own opinion, not
influence by any external pressure.
6) Principle of impartiality
The requirement of impartiality is based on a fundamental principle derived
from Roman law. This principle is often treated together with the
requirement of independence. Impartiality ensures that officials are not biased
when exercising their powers; it is an acknowledged essential guarantee against
arbitrariness and preferential treatment. Impartiality can be tested either
subjectively or objectively (e.g. the organization of decision-making body).
7) Principle of motivation/reasoning
Legal obligation of authorities to justify their actions originates from the
concept of rule of law. Motives of taking a certain decision must indicate
clearly the facts and the law concerning a particular situation. Rarely
administrative authorities are allowed to give standard replies (e.g. when a
large number of persons are concerned by similar decisions but even then the
organ is obliged to give individual reasons on request). In some
countries this principle is codified: “a decision must be based on valid
reasons” (Article 3:46 of Dutch GALA) and the reasons must be stated when the
decision is disclosed (Article 3:47).
Some scholars argue that the principle to state reasons is of formal nature,
while others notice that it can be considered as a material principle as well.
8) Principle of due care/ right to a diligent
administration/duty of care
This principle develops the idea of reasoned decisions of administration and
can be understood in two senses. As a formal principle it means that while
taking a particular decision administrative authority has to consider all
relevant circumstances, e.g. Article 3:2 of Dutch GALA states that “in preparing
a decision, the administrative organ shall gather the necessary information on
the relevant facts and interests to be considered” so that the reasoning
employed by authorities has to be consistent.
In its second sense, due care means balance of all interests involved. There
is an arguable point of view that in the latter sense principle of due care
comes down to the same content as the principle of proportionality. However,
the majority of scholars consider these two principles as separate, although
9) Principle of legal security/foreseeable and
accessible to all law/predictability
Legal certainty is a principle that underpins any legal system, as it has a
very broad meaning profound analysis of it in present survey is hardly possible.
This principle includes principle of prohibition of retroactivity, principle of
publication of regulations, principle of good faith, which is
also known as the principle of the legitimate expectations (vested rights) or
principle of legal protection for bona fide Acts, etc. In short, it means that
there must be stable and reliable legal order, so that actions of administration
can be predicted and citizens know what is expected from them. What is important
that at present it can be applied contra legem.
10) Principle of reasonableness
Reasonableness is one of the vaguest principles of proper administration;
nevertheless it is an effective instrument of fighting against administrative
arbitrariness. It sometimes intersects with principle of proportionality for
violation of principle of proportionality will definitely result in violation of
reasonableness, but not necessarily vice versa. Therefore, they are still
independent principles. Principle of reasonableness often includes principle of
This set of principles is based on the ‘positive’ approach to the standards
of public administration. As it was mentioned in the beginning principles are
the minimal standards which are to be adhered by public authorities. In
England, however, administrative law
has developed along lines entirely different from the development of continental
administrative law. Not the positive aspects of proper administration are
defined in UK, but the grounds of review of
‘improper’ administrative acts (negative approach) such as illegality
(unlawfulness), irrationality (unreasonableness), disproportionality (this
ground is still debated), procedural impropriety (unfairness), the doctrine of
ultra vires, etc.
Although our analysis had limitations as only the most widely accepted
principles in the countries selected were analyzed, several valuable conclusions
can be drawn out of it. First of all, there is indeed a widely recognized set of
principles of proper administration, which are applied in many countries. These
unwritten general principles are of great importance as they serve to connect
Member States within the EU, or in the future to form the basis for
currently arguable global administrative law. We should not, however, make the
mistake of thinking either that this makes the principles ‘universal’ or that
they take the same shape or have the same scope in every legal system as there
are principles which are unique for a particular legal system.
The above analysis has also shown that from one legal system to another
principles of proper administration differ in 1) their names 2) the way they are
established (set in Constitution, other legislation, not codified) 2) their
content (illustrative example was the principle of proportionality). Moreover,
either positive or negative approach can be applied for establishing standards
of proper administration.
The topic of principles of proper administration in Russia (principles of
public administration in Russian terminology), was thoroughly developed in the
period of Soviet Union, in 1990th the term ‘public administration’ was replaced
by ‘executive power’ and is only being restored nowadays. Thus, the lack of
legal research on the principles of public administration can be observed,
for instance, in present textbooks there is usually no chapter devoted to this
topic. In connection with the current administrative reform
there is a need in revision of the principles of public administration.
Interestingly, the basic law, which regulates the executive branch of power on non-federal level, has the following heading “On general principles of organization of legislative (representative) and executive bodies of state power in regions of Russian Federation”. However, in Russian legal tradition the meaning and role of principles are slightly different.
In foreign legal literature it is there is a clear distinction between moral
ideals and principles. For instance, the idea of universal good governance is
quite a vague, indeterminate, not purely legal goal society aims at to achieve
perfection, while principles can be seen as the link between ideals and duties,
between morality of aspiration and the morality of duty, between values and
rules. Besides that, modified role of principles in
contemporary legal systems is often accentuated. As Koopmans (2000) argues,
general principles are not, or not any more, used to patch gaps left between
legal provisions duly enacted by the framers of laws, constitutions or treaties.
On the contrary, they are an integral part of the conceptual tools judges employ
nowadays for settling conflicts.
Legal thinking in Russia is on the way of such
understanding of principles. At the same time, analysis of Russian
Constitutional Court decisions, single provisions of laws, several
contemporary research allow to draw a conclusion that similar principles of
proper administration (such as legality, proportionality, legal certainty,
principle of good faith, etc.) are to some extent are peculiar to public
administration in modern Russia, although theoretical analysis and
systematization of these principles is still needed.
Differences in administrative law may be explained by different historical
and social backgrounds. An interesting as well as important question to be
answered in the nearest future is put by Frits Stroinik: how does one explain
Henk Addink. Principles of good governance: lessons from administrative law, in:
D., Wessel, R.
(eds.) Good Governance and the European Union, Intersentia Uitgevers Antwerpen –
It is important to specify that he notion of public administration covers only
the activities of executive bodies,
whereas good governance, for example, is a much wider concept.
Jonathan Verschuuren. Principles of Environmental law. Nomos
Verlagsgesellschaft, Baden-Baden, 2003, p.19.
Ronald Dworkin. Taking rights seriously, London, 1996 (1977), p. 22.
Klara Kanska. Administrative Human Rights in the EU. Impact of the Charter of
Fundamental Rights // European Law Journal, Vol. 10, No. 3, May 2004, p.
Nicholas Emiliou. The principle of proportionality in European Law: A
comparative study, Kluwer Law International, London, 1996, p.46.
This particular classification comes from French notion of legality, although in
all countries there is a similar idea.
For more details see e.g. Nicholas Emiliou. Op. cit. P. 25.
Thomas Fleiner. Comparative constitutional and administrative
law // Tulane Law Review March, 2001 p.932.
 Rene Seerden, Frits Stroink (eds.) Administrative Law
of the European Union, its Member States and the United States: A comparative
analysis, Intersentia Uitgevers Antwerpen – Groningen, 2002, p.30.
 The precautionary principle: Its application in
International, European and Dutch Law, Rijksuniversiteit Groningen, 2003,
 Rene Seerden, Frits Stroink (eds.) Op. cit. P.
 The other possible headings for this principle are: the
right to fair trial in disciplinary procedures (Belgium), the principles of natural justice
(UK), constitutional justice
 Klara Kanska. Op. cit. P. 315.
 See, for example, Reuel E. Schiller. Enlarging the
administrative polity: administrative law and the changing
definition of pluralism, 1945-1970 // Vanderbilt Law Review
October, 2000, p. 1428.
 Klara Kanska. Op. cit. P. 313.
 Rene Seerden, Frits Stroink (eds.) Op. cit. P.
 Klara Kanska. Op. cit. P. 320.
 Rene Seerden, Frits Stroink (eds.) Op. cit. P.
 Nicholas Emiliou. Op. cit. P. 44.
 Rene Seerden, Frits Stroink (eds.) Op. cit. P.
 There are many discussions regarding the content of this
principle. For instance, many researchers think that the notion of legal
certainty equals the idea of good faith.
 For instance, in the Netherlands and Belgium.
Administrative Law of the European Union, its Member States
and the United
States. Op. cit. P. 31, p. 170.
 Frits Stroinik. Judicial control of the administration’s
discretionary powers, in Rob Bakker, Aalt Willem Heringa (eds.) Judicial
control: Comparative essays on judicial review, Uitgevers Antwerpen – Apeldoorn, 1995, p.
 Peter Cane. Administrative law, Oxford, 2004, p.
 For more details refer to J.A.G.Griffith, H.Street.
Principles of administrative law, London, 1963; D.C.M. Yardley. Principles of
administrative law, London, 1986; P.P.Craig. Administrative law,
 Jughen Schwartze. Enlargement, the European constitution,
and administrative law // International and Comparative Law Quarterly, vol.53,
October, 2004, p.979.
 Carol Harlow. Global Administrative Law: The Quest for
Principles and Values // The European Journal of International Law Vol. 17 no.1,
 There are many examples: English law does not recognize a
general administrative duty to give reasons, though most administrative, Dutch
principle of specificity An interesting one might be Estonian principle which is literally call
‘the principle of good administration’.
 Galligan D., Starilov U.N., Polyanskiy V.V. Administrative
law: the history of development and fundamental modern consepts, Moscow, 2002.
 See, for example, the latest textbooks: Administrative law
of Russia: course of lectures
// Editor: N.U. Hamaneva, Moscow, 2007; Bahrah
D.I. Administrative law of Russia: textbook, Moscow, 2006.
 Jonathan Verschuuren. Op. cit. P. 25.
 T.Koopmans, ‘General Principles of Law in European and
National Systems of Law: A comparative View’, in U.Bernitz and J.Nergelius
(eds.), General Principles of European Community Law, The Hague, Kluwer Law
International, 2000, p.25.
 Decisions of Constitutional court of Russian Federation
from 27.04.2001, 14.05.2003, 29.01.2004, 27.11.2004, etc.
 Federal law N 184 “On general principles of
organization of legislative (representative) and executive bodies of state power
in regions of Russian
Federation” from 06.10.1999.
 E.g. Dedov D.I. General principle of proportionality and
the restriction of freedom of enterprise // Moscow State University Bulletin,
series 11: law. 2002. № 6. P. 22-37.
 Frits Stroinik. Op. cit. P.
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