The Working Group on EU Administrative Law of Parliament's Committee on Legal Affairs recently reported on the desirability of an EU-wide code of administrative procedure along the lines of America's Administrative Procedure Act (or Ontario's Statutory Powers Procedure Act).
Interestingly, the Committee accepts that 'soft law' -- internal policy, expressed in a variety of non-binding forms -- is a useful means of achieving an overall culture of good administration, but that binding codes are necessary to vindicate the "fundamental right" of EU citizens to good administration.
On the Committee's view, the EU-wide code would guarantee certain procedural minima "in order to guarantee the procedural rights – such as the right to be informed and the right to be heard – of natural or legal persons when a decision is taken on a matter in which they can be considered a party and which produces legal effects for the person or entity concerned, and regarding the right to access one’s own files".
There is reference too to general principles: "equality and the principles of impartiality and independence, while guaranteeing fairness, lawfulness and legal certainty and the principles of proportionality and openness" and a new "service principle", according to which the "administration should seek to guide, help, serve and support citizens, act with appropriate courtesy and therefore avoid unnecessarily cumbersome and lengthy procedures".
Enshrining such principles in EU or member-state law seems quite harmless. Adopting binding procedural standards is trickier though: one does not want to tie the hands of decision-makers and thereby reduce their freedom to experiment with decision-making processes. Creating procedural minima, as a baseline of administrative fairness, is a sensitive way of ensuring that general norms of fairness are respected without placing fetters on the discretion and creativity of administrative decision-makers.
