Possible action at EU level for an open, efficient and independent EU administration : impact assessment.
Date: 2018-08-09
Institutions: Directorate-General for Internal Policies of the Union
Subjects: EU institution, EU law - national law, access to EU information, administrative code, administrative law, administrative structures, administrative transparency, citizen-authority relations, code of conduct, electronic government, right to information

Possible	action	
at	EU	level	for	
an	open,	
efficient	and	
independent	EU	
administration
Impact	Assessment

STUDY

EPRS | European Parliamentary Research Service

Ex-Ante Impact Assessment Unit
PE 621.841 – July 2018

EN

Impact Assessment of possible action at EU 
level for an open, efficient and independent 
EU administration 

Final Report 

EU  administrative  law  is  highly  fragmented  and  has  never  evolved  into  a 
consistent  set  of  rules  applicable  across  the  EU  administration.  This 
fragmentation impinges on the EU’s ability to consistently uphold standards 
of good governance and administration, as well as to protect citizens’ rights 
when  they  interact  with  the  administration.  This  impact  assessment 
compares the option of 'doing nothing' with two alternative policy options: 
making  the  2001  Code  of  Good  Administrative  Behaviour  binding  vs. 
adopting the regulatory framework proposed by the European Parliament in 
2016.  The  study  concludes  that  adopting  the  European  Parliament’s 
regulatory framework would be the preferred option, since it would lead to 
clear  advantages  in  terms  of  cost  savings  for  the  public,  as  well  as  the 
accessibility,  transparency,  legal  certainty  and  predictability  as  well  as  the 
legitimacy  of,  and  trust  in,  EU  institutions.  This  option  would  also  offer 
additional  advantages  in  terms  of  its  compatibility  with  Member  States’ 
administrative  law  and  readiness  for  the  transition  towards  e-government 
and e-administration tools, which promises further efficiency increases in the 
EU administration.  

EPRS | European Parliamentary Research Service 

 
 
 
 
 
 
 
 
 
 
 
 
 
AUTHOR(S) 

This  study  has  been  written  by  Andrea  Renda,  Felice  Simonelli  and  Antonella  Zarra  from  CEPS;  and  Anne 
Meuwese and Carlo M. Colombo from Tilburg University. The study was written at the request of the Ex-Ante 
Impact  Assessment  Unit  of  the  Directorate  for  Impact  Assessment  and  European  Added  Value,  within  the 
Directorate-General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament, 
following a request from the European Parliament’s Committee on Legal Affairs (JURI). This impact assessment 
is  part  of  a  project  that  also  includes  the  public  consultation  on  an  EU  law  for  an  open,  independent  and 
efficient European administration conducted for JURI by the European Added Value Unit of the Directorate 
for Impact Assessment and European Added Value.   

ADMINISTRATOR RESPONSIBLE 

Hubert Dalli, Ex-Ante Impact Assessment Unit, DG EPRS  

To contact the publisher, please e-mail EPRS-impactassessment@ep.europa.eu  

LINGUISTIC VERSIONS 

Original: EN 

Manuscript completed in June 2018.  

DISCLAIMER AND COPYRIGHT 

This  document  is  prepared  for,  and  addressed  to,  the  Members  and  staff  of  the  European  Parliament  as 
background  material  to  assist  them  in  their  parliamentary  work.  The  content  of  the  document  is  the  sole 
responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official 
position of the Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the  source  is 
acknowledged and the European Parliament is given prior notice and sent a copy. 

Brussels © European Union, 2018. 

PE 621.841 
ISBN: 978-92-846-3205-3 
DOI:10.2861/157069 
CAT: QA-02-18-811-EN-N 

eprs@ep.europa.eu  
http://www.eprs.ep.parl.union.eu (intranet) 
http://www.europarl.europa.eu/thinktank (internet) 
http://epthinktank.eu (blog) 

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Impact Assessment of possible action at EU level for an open, efficient and independent EU administration 

Executive Summary 

The  availability  of  an  open,  efficient,  transparent  and  accountable  administration  is  widely 
acknowledged as a precondition for ensuring a high-quality policy and administrative process, as 
well as the legitimacy of public institutions in the eyes of citizens, business and civil society. At the 
EU level, ‘administrative procedures’ are relevant in a variety of interactions involving many different 
EU  actors.  Rules  for  administrative  procedures  are  scattered  across  a  vast  number  of  sources: 
international treaties, primary law, case law of the Court of Justice of the EU, secondary legislation, 
a  variety  of  soft  law  documents  and  practices,  as  well  as  expressions  of  ‘self-commitment’  and 
normative  elements  of  internal  work  processes  of  parts  of  EU  administration.  This  scattering 
ultimately caused a degree of fragmentation in the corpus of applicable rules, some of which are 
binding on the respective parts of the EU administration, whereas others are not.  

Over the past two decades the introduction of a shared, ambitious set of rules on administrative 
procedure, applicable to all EU institutions, has emerged as an increasingly debated issue. As early 
as 2001, the European Parliament adopted a resolution in which it approved, with amendments, a 
European Code of Good Administrative Behaviour drafted by the European Ombudsman, and called 
on the European Commission to submit an appropriate proposal for a regulation containing a Code 
of Good Administrative Behaviour. With the Lisbon Treaty a new legal basis for a general law on 
administrative procedure at the EU level emerged. In particular, Article 298(1) TFEU provides that in 
carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the 
support  of  an  open,  efficient  and  independent  European  administration.  On  the  side  of  citizens’ 
rights, Article 41 Charter of Fundamental Rights of the European Union introduced the right to good 
administration by granting to every person the right to have his or her affairs handled impartially, 
fairly and within a reasonable length of time by the institutions, bodies, offices and agencies of the 
Union.  

On  9  June  2016,  the  European  Parliament  adopted  a  Resolution  for  an  open,  efficient  and 
independent  European  Union  administration,  stressing  that  the  Lisbon  Treaty  had  provided  the 
Union with a legal basis for the adoption of an Administrative Procedure Regulation and invited the 
European Commission to examine a suggested proposal for a regulation, which closely followed the 
main  recommendations  included  in  the  2013  resolution,  and  to  come  forward  with  a  legislative 
proposal to be included in its work programme for the year 2017. This proposal does not entail a full 
and total harmonisation, but sets minimum rules to be applied by the EU institutions while leaving 
the possibility to adopt sectoral-specific rules, which would however need to respect the general 
rules. The European Commission replied in November 2016, however, that it was ‘not convinced 
that  the  benefits  of  using  a  legislative  instrument  that  would  codify  administrative  law  would 
outweigh  the  costs’.1  This  study  was  therefore  commissioned  by  the  European  Parliamentary 
Research  Service  (EPRS),  at  the  request  of  the  Parliament’s  Committee  on  Legal  Affairs  (JURI),  to 
analyse  the  costs  and  benefits  of  possible  alternative  options,  in  particular:  their  impact  on  the 
accessibility of the EU administration; their impact on the transparency of the EU administration; the 
extent  to  which  they  guarantee  legal  certainty  and  adequately  protect  citizens’  rights  and  their 
impact  on  trust  in  the  institutions  and  on  the  efficiency  and  effectiveness  of  administrative 
procedures. 

1 SP(2016)613, 18 November 2016. 

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Definition of the problem 

We  define  the  problem  in  terms  of  the  existing  fragmentation  of  EU  administrative  procedure, 
adding that the fragmentation negatively affects the openness, efficiency and independence of EU 
administration. The existence of fragmentation and its negative impact are validated in several ways 
during the study. 

•  There is a high level of fragmentation in administrative procedure across EU institutions, agencies, 
offices and bodies. Apart from fragmentation of the ‘hard law’ framework across many important 
areas of administrative procedure (right of access to the file, right to be heard, time limits and 
the right to information about the procedure), fragmentation appears evident across codes of 
administrative behaviour adopted by different EU bodies. The same is true between bodies that 
have adopted a code (30), and bodies that do not (35). Fragmentation goes beyond the level of 
flexibility that one could expect given the heterogeneity of EU bodies and their related powers 
and mission. More explicitly, fragmentation also affects the implementation of basic principles 
of good administration, such as the respect of the right to be heard, the administration’s duty 
to motivate decisions, the duty to operate and interact in all official languages of the EU, the 
adoption and respect of time limits, use of online procedures and access to the file. 

•  Based  on  our  analysis  of  existing  codes,  fragmentation  appears  evident  in  all  phases  of  the 
administrative  procedure,  and  notably  in  the  initiation  of  proceedings;  in  the  handling  of 
requests from members of the public; in the formal and procedural requirements of inspections; 
in the recognition of user’s rights to communicate online, be heard and represented by a lawyer, 
and  be  given  clear,  timely  and  understandable  information  on  the  content  and  scope  of 
administrative acts, as well as ongoing proceedings and remedies.  

•  Our empirical analysis, the results of the open public consultation run by the JURI Committee,2 
and the stakeholder workshop we organised show that problems related to fragmentation are not 
only theoretical, but are also experienced in practice by citizens and other stakeholders. Our analysis 
also shows that introducing general default rules, whilst allowing for tailored requirements in 
certain  sectors,  is  indeed  feasible  without  impinging  on  the  degree  of  flexibility  needed  in 
specific policy areas.  

•  The  existing  fragmentation  is  coupled  with  insufficient  compliance  with  principles  of  good 
administration, leading to negative impacts on the public. These, based on the results of the public 
consultation, take the form of uncertainty and difficulty to find basic (or contact) information on 
the  competent  officials;  delays  in  the  administrative  procedure;  lack  of  predictability  of  the 
outcome  of  administrative  procedures;  opportunity  costs  due  to  the  lack  of  information  on 
possible  remedies  and  complaints  procedures;  and,  last  but  not  least,  a  general  loss  of 
legitimacy of EU institutions in the eyes of the public.   

These conditions determine the existence and relevance of a policy problem for the purposes of our 
impact assessment. This problem is likely to worsen over time for two main reasons: i) the ongoing 
‘agencification’ of the European Union, with increased regulatory powers being attributed to bodies 
other  than  the  European Commission  (e.g.  in  the financial  sector,  in  medicines  and  chemicals, in 
network  industries,  and  also  for  research,  innovation  and  SME  policy);  and  ii)  the  forthcoming 
transition  towards  a  fully  digitised  administration,  triggered  by  the  Ministerial  Declaration  on  e-

2 http://www.europarl.europa.eu/committees/en/juri/eu-administrative-law.html.  

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Impact Assessment of possible action at EU level for an open, efficient and independent EU administration 

Government  adopted  in  Tallinn,3  which  would  require  a  massive  upgrade  of  processes, 
communication patterns and procedures across EU administration, which can only be justified by 
an effective centralisation and harmonisation of the way in which EU bodies deal with the public.  

Objectives and legal basis 

The general objective of the proposed intervention is to promote the quality of EU governance and 
government by ensuring the most efficient and effective functioning of EU institutions, bodies, offices and 
agencies. This general objective is rooted in the provisions of the Treaty on the Functioning of the 
European  Union.  For  many  EU  legislative  proposals,  the  objectives  are  already  specified  in  the 
Treaty. This can only partially be said to be the case for a possible EU regulation on administrative 
procedure. The specific objective of the intervention is to guarantee, in the most cost-effective way 
possible, respect for the right to a good administration enshrined in the TFEU and in Article 41 Charter of 
Fundamental Rights of the European Union. This right to good administration, as explained above, 
can be further broken down into a number of key principles recognised in the case law of the Court 
of Justice as well as in international literature and practice on good governance and administration, 
and include (at a minimum) openness, efficiency and independence, and possibly also transparency, 
uniformity and consistency in decision-making.  

The legal basis for intervening to address the policy problem is Article 298 TFEU. While there has 
been  debate  as  regards  the  suitability  of  these  provisions  as  legal  basis  for  the  proposed 
intervention,  mostly  due  to  claims  that  the  wording  of  Article  298  TFEU  refers  to  administration 
within  the  institutions,  instead  of  regulating  the  relationship  between  the  institutions  and  the 
public,  this  argument  has  been  dismissed  on  the  basis  that  the  Treaty  already  includes  other 
possible legal bases for the adoption of the institutions’ own Rules of Procedures.  

Policy options 

This Impact Assessment was carried out at a time when a policy proposal had already been tabled 
by the European Parliament, and certain options had been considered as not feasible in the short 
term.  In  this  context,  we  have  not  included  in  the  analysis  an  in-depth  assessment  of  more 
comprehensive  and  ambitious  proposals  that  would  go  well  beyond  the  European  Parliament’s 
proposal. For example, we did not consider options that would entail maximum harmonisation of 
administrative procedures across the EU administration, and would therefore remove the possibility 
to adopt special rules when the specificities of the case require it (e.g. for DG COMP’s dawn raids). 
Likewise, we have not retained the option of going beyond individual administrative procedures to 
also encompass rulemaking, in what would lead to the adoption of an ‘EU Administrative Procedure 
Act’, similar to the one in effect in the US. That option, although advocated by some stakeholders 
during our empirical analysis, would require a much longer assessment from a legal and economic 
standpoint, and was seen as unfeasible at this stage.  

We thus have identified the following policy alternatives for the purposes of our impact analysis:  

Option  zero  (‘Do  nothing’).  This  corresponds  to  the  existing  situation  and  incorporates  its  likely 
evolution. The fragmentation of the rules of administrative procedure in the EU would 

3 See the new European Interoperability Framework (https://ec.europa.eu/isa2/publications/european-interoperability-
framework-eif_en)  and 
(https://ec.europa.eu/digital-single-
market/en/news/communication-eu-egovernment-action-plan-2016-2020-accelerating-digital-transformation). 

the  Ministerial  Declaration  on  e-Government 

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Option 1. 

Option 2.  

persist, with one-third of the analysed EU institutions, offices, agencies and bodies (23 
out  of  65)  having  adopted  some  form  of  non-binding  code  of  administrative 
procedure, and a smaller number (7) having officially adopted the 2001 Code of Good 
Administrative Behaviour. The conduct of EU officials in the remaining entities would 
be only partly covered by the EU Staff Regulations.  

Make  the  European  Ombudsman  Code  binding.  This  would  be  in  line  with  the  first 
proposal by the EP on the matter in 2001, where the Parliament had called upon the 
Commission  to  submit  a  proposal  for  a  Regulation  containing  a  code  of  good 
administrative  behaviour.  Under  this  option,  the  Code  drafted  by  the  European 
Ombudsman  and  endorsed  by  the  European  Parliament  in  2001  would  be  made 
binding  on  all  EU  institutions,  agencies,  offices  and  bodies.  This  would  imply  the 
adoption of implementation measures that would make the provisions of the 2001 
Code enforceable.  

Adopt  the  European  Parliament’s  proposed  regulatory  framework.  This  would  entail  a 
regulation  covering  administrative  procedures  in  the  relationship  between  EU 
administrations  and  the  public.  This  corresponds  to  the  regulatory  framework 
proposed by the European Parliament in 2016. More specifically, this means that rules 
would be enacted: i) on the initiation of proceedings, including proceedings started 
on  own  initiative  of  the  Union’s  administration,  and  proceedings  started  upon 
application  by  a  party;  ii)  on  various  rights  related  to  the  management  of  the 
procedure (various procedural rights, the duty of careful and impartial investigation; 
the duty to cooperate; rules that apply in case witness or experts are to be heard; rules 
on inspections, conflicts of interest and access to the file; the duty to keep records and 
rules on time limits); iii) on the conclusion of the administrative procedure (form of 
administrative acts, duty to state reasons, duty to communicate available remedies 
and  the  notification  of  acts);  and  iv)  on  the  rectification  and  withdrawal  of  acts.  In 
addition,  there  would  be  a  new,  general  obligation  for  the  Commission  to  publish 
updated online information on the existing administrative procedures in an ad-hoc, 
public  and  free  website,  wherever  possible  and  reasonable,  with  priority  given  to 
application procedures.4  

Impact Assessment 

Concerning the analysis of impacts, we have decided to adopt a mix of quantitative and qualitative 
approaches. The subject matter does not easily lend itself to quantification, given that most of the 
associated impacts are not quantifiable (e.g. good governance or transparency). Another obstacle 
that we faced is the lack of reliable data on the current practice of EU institutions, agencies, offices 
and bodies. Given the limited response rate to our survey, we ended up relying on the content of 
official documents posted on the internet websites of EU administrations, rather than on field data 

4 Such website should contain information such as a link to the applicable legislation, a brief explanation of the main 
legal requirements and their administrative interpretation, a description of the main procedural steps, the indication of 
the authority competent to adopt the final act, the indication of the time-limit for the adoption of the act, the indication 
of remedies available, a link to standard forms that may be used by parties in their communications with the Union's 
administration within the procedure. 

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Impact Assessment of possible action at EU level for an open, efficient and independent EU administration 

related  to  their  practice.  This  may  lead  to  some  inaccuracies  in  the  assessment  of  the  current 
situation.  In  addition,  when  attempting  to  quantify  specific  costs  or  benefits,  we  have  made  a 
selection of those provisions existing in the current European Parliament’s proposal, which could 
more easily be quantified.  

In  quantifying  impacts,  we  have  chosen  different  methods  for  cost  savings  on  the  side  of  the 
administration and on the side of the public. For the former, we relied on existing data from our own 
empirical analysis, coupled with time and cost parameters calculated in previous studies; and tables 
used by the German government as reference for the calculation of the cost of specific activities 
carried out by the administration. These were coupled with reasonable assumptions on salary levels 
in the EU institutions. For cost savings on the side of the public, we relied on the assumption that a 
more transparent and efficient set of provisions in the EU administration would reduce the level of 
complexity of specific administrative activities for members of the public. This allowed us to provide 
an estimate of the magnitude of potential savings on both sides. The final impact assessment and 
comparison  of  options  was  carried  out  by  means  of  a  scorecard  table,  in  which  the  intensity  of 
specific impacts is described in a common metric, regardless of whether the underlying analysis is 
qualitative  or  quantitative.  This  method  proved  optimal  and  sufficient  to  show  how  the  two 
alternative options perform in our analysis.  

Table A below shows a comparison of the three alternative policy options from the standpoint of 
costs, benefits and overall effectiveness, measured as the extent to which the options can lead to 
the achievement of the general and specific objectives identified. We adopt a scorecard approach, 
with scores varying between 0 (lowest) and √√√√√ (maximum).  

As shown in the table: 

•  Option 1 is expected to cause limited administrative burdens for EU institutions, agencies, bodies and 
offices. In order to assess them, we focused on a limited sample of requirements that the option 
would  introduce  and  have  tried  to  quantify  their  associated  costs.  We  estimate  that  these 
requirements (access to documents, stating purpose and indicating remedies, right to use any 
EU official language, provisions on time limits) cost €4,717,764 yearly. Option 2 might generate 
slightly  higher  administrative  burdens.  For  the  same  sample  of  provisions,  we  estimated 
administrative burdens to reach €5,988,879, and for the first year we also envisaged one-off 
costs  of  €178,750.  However,  Option  2  already  consists  of  a  text  that  is  designed  to  be 
enforceable, whereas Option 1 would entail a time-consuming translation of the 2001 Code into 
an enforceable set of rules.  

•  Options 1 and 2 create significant cost savings for the public. We estimated such costs savings by 
assuming a total number of administrative acts of 102,581, and providing calculations for cost 
savings  for  both  options  in  order  to  make  them  comparable.  Our  calculations  for  a  limited 
sample  of  administrative  activities  led  to  estimates  of  €13,297,004  for  Option  1  and 
€14,151,627  for  Option  2.  It  bears  recalling,  however,  that  these  are  only  a  sub-set  of  the 
projected cost savings. In particular, Option 2 is expected to save time and information costs for 
citizens and businesses, as well as for the administrations, which would avoid duplicative efforts 
each time they introduce a new procedure.  

•  Option  2  scores  better than  Option  1  for  non-monetised  benefits.  Importantly,  in  order  to  make 
Option 1 comparable to Option 2, we had to assume that the provisions contained in the 2001 
Code  would  be  made  enforceable  through  regulatory  intervention.  Even  after  adopting  this 
assumption, Option 2 remains preferable in all respects, with the additional advantage of being 
more  compatible  with  Member  States’  administrative  law  frameworks,  as  well  as  more 

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EPRS | European Parliamentary Research Service 

appropriate for preparing the EU administration for the digital transition.  

•  Finally,  we  have  ranked  the  options  based  on  their  ability  to  achieve  the  specific  impacts 
mentioned  in  this  study’s  terms  of  reference:  accessibility,  transparency,  legal  certainty  and 
predictability,  efficiency  and  effectiveness,  enhanced  protection  of  citizens’  rights,  and  the 
legitimacy of and trust in EU institutions. We have then added also two additional dimensions: 
compatibility  with  Member  States’  administrative  law  (mentioned  in  previous  studies,  e.g. 
Blomeyer  and  Sanz  2012)  and  readiness  for  e-government,  which  emerged  as  an  important 
element  during  our  research  and  the  workshop.  In  all  these  aspects,  Option  2  deserves  the 
highest score. 

All  in  all,  as  shown  in  the  table  below,  Option  2  appears  preferable  to  Option  1  since  it  is  more 
detailed  and  precise,  features  a  broader  coverage  and  entails  lower  discretion  in  interpretation, 
thereby promoting more legal certainty and predictability. As a consequence, Option 2 would also 
improve  the  compatibility  of  EU  administrative  law  with  the  rules  on  administrative  procedures 
adopted by most Member States. It would also prepare the EU administration to make the most out 
of the upcoming digital transformation in the administration.  

Table A. Comparing alternative policy options: A synopsis 

Option 0 

Option 1 

Option 2 

√ 
0 

√ 

√√ 

0 

√ 

√√ 

√√ 

√√ 

√√ 

√ 

√√ 

√√ 

√√ 

√√ 
√ 

√√ 

√√√√ 

0 

√ 

√√√ 

√√√ 

√√√ 

√√√ 

√√ 

√√√ 

√√√ 

√√√ 

Costs 
One-off costs for EU institutions 

Admin burdens (EU institutions) 

Benefits 

Cost savings (EU institutions) 

Cost savings (Public) 

Accessibility  

Transparency  

Legal certainty and predictability 

Efficiency and effectiveness  

Enhanced protection of citizens’ rights  

Legitimacy of and trust in EU 
institutions  

Compatibility with Member States’ 
administrative law 

Readiness for e-government  

0 
0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

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Impact Assessment of possible action at EU level for an open, efficient and independent EU administration 

Monitoring and evaluation 

If Option 2 were to be selected as the preferred policy option, as our analysis suggests, a detailed 
data gathering and management plan would have to be devised to allow monitoring and evaluation 
to take place effectively over time. Table B below shows the indicators that we consider useful and 
necessary for the monitoring and the evaluation of Option 2.  

Table B. Data collection and management plan for monitoring and evaluation 

Impact 

Indicator 

Costs (EU institutions) 

Cost savings (Public) 

Accessibility  

Transparency  

Legal certainty and predictability 

Efficiency and effectiveness  

Cost of setting up and maintaining the ad-hoc website; cost of 
administering complaints for the European Ombudsman; 
administrative burdens inside the administration 

Data on perception of user-friendliness, accessibility and transparency 
of the EU administration, to be collected through online surveys 
(Eurobarometer) and digital rating systems 

Data on perception of user-friendliness, accessibility and transparency 
of the EU administration, to be collected through online surveys 
(Eurobarometer) and digital rating systems 

Data on perception of user-friendliness, accessibility and transparency 
of the EU administration, to be collected through online surveys 
(Eurobarometer) and digital rating systems 

Data on perception of the predictability of EU administrative action, to 
be collected through online surveys (Eurobarometer) and digital rating 
systems 

Data on notification of proceedings initiated by the administration, per 
institution and per subject matter  

Data on number of requests submitted by the public, per institution and 
per subject matter (i.e. access to documents, requests for clarifications, 
access to one’s own file, etc.)  

Data on timeliness of action of the EU administration, to be collected 
internally through records and indexes 

Enhanced protection of citizens’ rights  

Data on number of proceedings, complaints, decisions and 
investigations, to be cross-analysed with perception surveys 
(Eurobarometer) 

Legitimacy of and trust in EU 
institutions  

Perception surveys (Eurobarometer) 

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Table of Contents 

Introduction  _________________________________________________________________ 15 

1 

2 

3 

4 

5 

6 

7 

8 

Methodological considerations ____________________________________________ 23 

Definition of the problem _________________________________________________ 25 
There is no disagreement on the existing fragmentation  _______________________________  25 

Current legal fragmentation of selected issues ________________________________________  26 

2.2.1  Right to access to the file  ________________________________________________________ 27 
2.2.2  Right to be heard  ______________________________________________________________ 28 
2.2.3  Time limits ____________________________________________________________________ 28 
2.2.4  Right to information about the procedure  __________________________________________ 29 
Empirical evidence confirms that fragmentation exists and leads to problems _____________  30 

2.3.1  An analysis of the European Ombudsman’s recent activities ____________________________ 31 
2.3.2  Codes of good administration in EU institutions ______________________________________ 40 
2.3.3  The results of the public consultation of the JURI Committee of the European Parliament  ____ 50 
2.3.4  The Workshop on Possible Options for a more Open, Efficient and Independent EU 

Administration  ________________________________________________________________ 53 

Codifying good administration: academic perspectives and selected experience in EU Member 
States ___________________________________________________________________________  54 

Conclusion _______________________________________________________________________  56 

Objectives of the proposed intervention ____________________________________ 58 

Legal basis, subsidiarity and proportionality  ________________________________ 60 

Alternative policy options  ________________________________________________ 62 

Impact assessment _______________________________________________________ 65 

Option zero (‘Do nothing’)  _________________________________________________________  68 

Option 1: making the 2001 Code binding _____________________________________________  71 

6.2.1  Cost of compliance with Option 1 for the EU administration  ____________________________ 72 
6.2.2  Benefits of Option 1  ____________________________________________________________ 83 
Option two: the European Parliament’s proposed regulatory framework __________________  91 

6.3.1  Cost of compliance _____________________________________________________________ 96 
6.3.2  Benefits of Option 2  ___________________________________________________________ 100 
Summing up: comparing alternative policy options ___________________________________  104 

Provisions for monitoring and evaluation __________________________________ 107 

Conclusions ____________________________________________________________ 109 

References __________________________________________________________________ 110 

Annex 1 – Questionnaire used for our survey  ____________________________________ 116 

Annex 2 – List of institutions, agencies and bodies surveyed _______________________ 129 

Annex 3 – List of questions distributed during the workshop held on 7 May 2018 _____ 130 

Annex 4 – Minutes of the workshop held on 7 May 2018 ___________________________ 132 

12 

 
 
 
 
 
 
 
 
 
 
 
 
 
Impact Assessment of possible action at EU level for an open, efficient and independent EU administration 

List of figures 

Figure 1 – Inquiries closed the EO in 2014-18, by complainant __________________________ 33 

Figure 2 – Results of the inquiries closed by the EO in 2014-18 __________________________ 34 

Figure 3 – Inquiries closed the EO in 2014-18, by EU administration concerned  ____________ 35 

Figure 4 – Inquiries closed the EO in 2016-17, by subject matter  ________________________ 36 

Figure 5 – Inquiries closed the EO in 2014-18, by allegation  ____________________________ 38 

Figure 6 – Inquiries closed the EO in 2014-18, by field of law  ___________________________ 39 

Figure 7 – EU Institutions and Codes of Good Administration ___________________________ 41 

Figure 8 – Year of adoption of the Codes in our sample  _______________________________ 42 

Figure 9 – Coverage of existing codes of good administrative conduct (n. 22 out of 30) ______ 44 

Figure 10 – Coverage of existing codes of good administrative conduct (n. 22 out of 65) _____ 45 

Figure 11 – Specific provisions in the existing Codes (n = 30) ___________________________ 46 

Figure 12 – Requirement in place for administrative acts (n = 30) ________________________ 47 

Figure 13 – Content of the notifications when initiating a proceeding ____________________ 48 

Figure 14 – Treatment of remedies in administrative acts ______________________________ 49 

Figure 15 – Provisions on inspections ______________________________________________ 50 

Figure 16 – Intervention Logic: Problem definition, drivers and objectives  ________________ 59 

Figure 17 – Flow chart: handling a FOI request_______________________________________ 75 

Figure 18 – Average cost per type of FOI activity _____________________________________ 76 

Figure 19 – Percentage of FOI requests per admin activity  _____________________________ 76 

13 

 
 
 
 
 
EPRS | European Parliamentary Research Service 

List of Tables 

Table 1 – Average cost of FOI request per country ____________________________________ 75 

Table 2 – Estimated time needed to process a single request for access to document  _______ 79 

Table 3 – Estimate of total administrative burden from processing of requests _____________ 80 

Table 4 – Estimate of total costs from stating the purpose and indicating available remedies _ 81 

Table 5 – Total estimates costs of selected provisions for Option 1 _______________________ 83 

Table 6 – CASH Table – Germany - Citizens __________________________________________ 86 

Table 7 – CASH Table – Germany - Businesses  _______________________________________ 87 

Table 8 – Simulation of simplification for citizens under Option 1  _______________________ 88 

Table 9 – Simulation of simplification for businesses under Option 1 _____________________ 88 

Table 10 – A comparison of Options 1 and 2  ________________________________________ 92 

Table 11 – Estimate of total one-off costs from Option 2 _______________________________ 97 

Table 12 – Estimate of total costs from stating the purpose and indicating available remedies,  

Option 2 __________________________________________________________________  98 

Table 13 – Total estimates costs of selected provisions for Option 2  _____________________ 99 

Table 14 – Simulation of simplification for citizens under Option 2  _____________________ 100 

Table 15 – Simulation of simplification for businesses under Option 2 ___________________ 101 

Table 16 – Reduced burdens from inspections, Option 2 _______________________________ 101 

Table 17 – Comparing alternative policy options: a synopsis  __________________________ 106 

Table 18 – Data collection and management plan for monitoring and evaluation  _________ 108 

14 

 
 
 
 
Introduction 

The  availability  of  an  open,  efficient,  transparent  and  accountable  administration  is  widely 
acknowledged as a precondition for a high-quality policy and administrative process, as well 
as the legitimacy of public institutions in the eyes of citizens, business and civil society. In 2013, 
the  United  Nations  High-Level  Report  on  the  post-2015  Development  Agenda  called  for  a 
‘fundamental shift’ to recognise the significant role of institutions in contributing to citizens’ 
well-being.5  This  message  was  echoed  by  the  Open  Working  Group  on  Sustainable 
Development Goals, which put forward a proposal including targets for reducing corruption; 
promoting  transparency, access  to  information  and  accountability;  as  well  as ensuring  that 
decision-making processes are more inclusive and representative. Countries around the world 
have  understood  the  intimate  link  between  the  openness,  transparency  and  efficiency  of 
institutions on the one hand, and economic performance (whether measured as growth or 
sustainable development) on the other. The European Union has been both an importer and 
an exporter of ideas in this regard (Harlow et al., 2017, 15). 

it  comes  to  the  operationalisation  of  these  principles 

At the EU level, “administrative procedures” are relevant in a variety of interactions involving 
many different EU actors, such as the EU administration's relations with the public in general 
(e.g. correspondence, dealing with infringement complaints, dealing with requests for access 
to documents, consultation with interested parties, rules on interest representation, etc.) and 
policy-specific administrative regimes in which an EU agency or the Commission plays a role 
as a regulator or adjudicator.6 EU institutions, bodies, agency and offices generally aim at high 
standards  in  terms  of  transparency,  openness,  accountability,  legality  and  impartiality. 
However,  when 
in  concrete 
administrative procedures, rather than a common set of rules, the EU has so far developed a 
combination  of  rights  expressed  at  the  most  general  level  (e.g.  Article  41  Charter  of 
Fundamental Rights)7 and a series of ad hoc requirements and procedures in certain policy 
domains (e.g., in competition policy, trade policy, state aid, access to EU documents, the EU 
civil service). Rules for administrative procedures at the EU level are therefore scattered across 
a vast number of sources: international treaties (Aarhus); primary law; case law of the Court of 
Justice  of  the  European  Union;8  secondary  legislation;  a  variety  of  soft  law  documents  and 
practices;  as  well  as  expressions  of  ‘self-commitment’;  and  normative  elements  of  internal 
work  processes  of  parts  of  the  EU  administration.  This  ultimately  caused  a  degree  of 
fragmentation in the corpus of applicable rules, some of which are binding on the respective 
parts of the EU administration, whereas others are not.  

5 United Nation Secretary-General’s High-Level Panel of Eminent Persons on the post-2015 Development Agenda, 
“A  New  Global  Partnership:  Eradicate  Poverty  and  Transform  Economies  through  Sustainable  Development”, 
United Nations, New York, NY, 2013. 
6  Working  Group  on  EU  Administrative  Law,  “State  of  Play  and  Future  Prospects  for  EU  Administrative  Law”, 
Working  Document  (WD-State  of  Play),  Working  Document  submitted  to  the  Committee  on  Legal  Affairs, 
(http://www.europarl.europa.eu/meetdocs/2009_2014/documents/juri/dv/ 
19 October 2011, p. 9. 
juri_wdadministrativelaw_/juri_wdadministrativelaw_en.pdf).  
7 Mir 2011, 64 calls this a “micro-codification”. 
8 See footnotes 20-22 for examples. 

15 

 
 
                                                             
A  recent  publication  by  Galetta  et  al.  (2015a,  6)  for the  Policy  Department of the  European 
Parliament specifies that ‘an established authoritative catalogue of general principles of EU 
administrative  procedural  law  does  not  exist  –  neither  as  an  instrument  of  primary  or 
secondary EU law, nor in the jurisprudence of the CJEU, nor is there a minimum consensus in 
scholarship  about  such  a  list’.9  Oriol  Mir  lists  the  following  pieces  of  legislation  as  ‘notable 
examples of  sectoral  codifications’  (Mir  2011,  10):  Regulation  (EC) No  1/2003 on  defence  of 
competition,10  Regulation  on  concentrations,11  Regulation  on  control  of  State  aid,12 
Regulation  on  the  Structural  Funds  and  the  Cohesion  Fund,13  Single  Regulation  on  the 
common organisation of agricultural markets,14 as well as the regulations on certain European 
agencies (which contain general rules on their form of action), particularly on those agencies 
with  decision-making  powers  (Mir  2011,  60-61).  Apart  from  this  non-exhaustive  list  of 
examples of acts of secondary law that may be seen as sources of EU administrative law but 
that apply within a single policy area, there is also secondary legislation containing elements 
of a ‘general administrative law’ and which Mir refers to as ‘notable examples of (very) partial 
general codifications’ (Mir, 2011, 11). One example is Council Regulation 1 of 15 April 1958 
regarding the languages to be used by the European Economic Community,15 establishing the 
language regime applicable to all EU institutions. The same goes for general rules applicable 
to  periods,  dates  and  time  limits  in  EU  law,  for  instance  concerning  the  calculation  of 
institutions'  documents17  and 
administrative  time 
administrative practices with respect to data privacy.18 Finally, there are more or less general 

limits,16  as  well  as  access  to  EU 

for 

and 

JURI 

study 

agencies’, 

December 

committee, 

9 Galetta, Diana-Urania, Herwig C. H. Hofmann, Oriol Mir Puigpelat, Jacques Ziller, ‘The context and legal elements 
of  a  Proposal  for  a  Regulation  on  the  Administrative  Procedure  of  the  European  Union's  institutions,  bodies, 
offices 
2015, 
the 
http://www.europarl.europa.eu/RegData/etudes/STUD/2016/536487/IPOL_STU%282016%29536487_EN.pdf. 
10 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition 
laid down in Articles 81 and 82 of the Treaty. 
11  Council  Regulation  (EC)  No  139/2004  of  20  January  2004  on  the  control  of  concentrations  between 
undertakings. 
12 Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 
93 of the EC Treaty. 
13 Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional 
Development  Fund,  the  European  Social  Fund  and  the  Cohesion  Fund  and  repealing  Regulation  (EC)  No 
1260/1999. 
14 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural 
markets and on specific provisions for certain agricultural products (Single CMO Regulation). 
15 EEC Council Regulation 1 of 15 April 1958 determining the languages to be used by the European Economic 
Community, OJ 1958 17/385 as last amended by the 2003 Act of Accession. The language policy is also an element 
of the right to good administration referred to in Art 41(4) CFR. 
16 Regulation (EEC, Euratom) 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, 
dates and time limits, OJ 1971 L 124/1. 
17 Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public 
access to European Parliament, Council and Commission documents, OJ 2001 L 145/43. The regulation needs to 
be read in conjunction with Art 255 EC and Art 42 Charter on Fundamental Rights. This regulation is subject to 
debate  about  reform, see Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  regarding 
public  access  to  European  Parliament,  Council  and  Commission  documents,  COM2008(229)final,  2008/0090 
(COD). 
18 Regulation (EC) 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection 
of individuals with regard to the processing of personal data by the Community institutions and bodies and on 
the free movement of such data, OJ 2001 L 8/1. 

16 

 
                                                             
rules applying to agencies, such as those in the “Statute for executive agencies to be entrusted 
with certain tasks in the management of Community programmes”.19 

Over the past few years, the Court of Justice of the European Union has also contributed to 
shaping  EU  administrative  law  by  developing  general  principles  of  administrative  law  and 
procedure, especially those related to the rights of defence. In this respect, landmark decisions 
acknowledged, confirmed, delineated or expanded, for instance, the right to be heard,20 the 
right to access to the file21 and the duty for the administration to give reasons.22  

Against this background of fragmentation, over the past two decades the introduction of a 
shared, ambitious set of rules on administrative procedure, applicable to all EU institutions, 
has  emerged  as  an  increasingly  debated  issue.  The  introduction  of  a  consistent  regulatory 
framework  for  administrative  procedure  at  the  EU  level  can  occur  at  different  levels  of 
ambitions. At a minimum, EU institutions, agencies and bodies could be bound by the EU Code 
of Good Administrative Behaviour drafted by the European Ombudsman and endorsed by the 
European  Parliament  in  2001.  Going  one  step  further,  it  would  be  possible  to  bind  all  EU 
institutions, agencies and bodies to the same set of rules and respect for stakeholder rights 
when  dealing  with  individual  administrative  procedures:  for  example,  when  opening  an 
investigation,  when  responding  in  a  timely  and  comprehensive  manner  to  an  application, 
when asked to provide an explanation for the exclusion from a competitive procedure, etc.  

But good administration and administrative due process could in principle also extend to the 
whole policy process, and in particular to stakeholder consultation, as well as the obligation 
to  abide  by  evidence-based  policy-making.  All  these  options  imply  the  adoption  of  a 
comprehensive general act of administrative procedure at the EU level, similar to the laws in 
place in many legal systems around the world, in some form. Depending on the exact scope, 
for instance whether rule-making is also regulated or not, such an act could look similar to 
administrative  law  codes  in  civil  law  countries,  including  many  EU  Member  States  (The 
Netherlands,  France,  Germany,  Sweden,  Italy  and  Poland);  or  rather  to  the  US  1946 
Administrative Procedure Act, which accommodates inter alia the use of Notice and Comment 
procedures, as well as (from 1981) the obligation to perform Regulatory Impact Analysis on 
major federal regulatory interventions. 

At  the  EU  level,  as  mentioned  above,  already  in  2001,  the  European  Parliament  adopted  a 
resolution in which it approved with amendments a European Code of Good Administrative 
Behaviour drafted by the European Ombudsman;23 and called on the European Commission 
to submit an appropriate proposal for a Regulation containing a Code of Good Administrative 
Behaviour.  With  the  Lisbon  Treaty,  a  new  legal  basis  for  a  general  law  on  administrative 
procedure  at  the  EU  level  was  created.  In  particular,  Article  298(1)  TFEU  provides  that  in 
carrying  out  their missions,  the  institutions,  bodies,  offices  and  agencies  of  the  Union  shall 

19 Council Regulation (EC) 58/2003 of 19 December 2002 laying down the statute for executive agencies to be 
entrusted with certain tasks in the management of Community programmes, OJ 2003 L 11/1. 
20 Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, [15]. 
21 Case C-204-205/00, Aalborg Portland A/S and Others v Commission [2004] ECR I-123. 
22 Case C-367/95, Commission v Chambre syndicale nationale des entreprises de transport de fonds et valeurs 
(Sytraval) and Brink’s France SARL [1998] ECR I-1719. 
23 Resolution of 6 September 2001 on the European Ombudsman's Special Report to the European Parliament 
following the own-initiative inquiry into the existence and the public accessibility, in the different Community 
institutions and bodies, of a Code of Good Administrative Behaviour (OJ C 72 E, 21.3.2002, p. 331) 

17 

 
 
                                                             
have the support of an open, efficient and independent European administration. On the side 
of  citizens’  rights,  Article  41  Charter  of  Fundamental  Rights  (CFR)  of  the  European  Union 
introduced the right to good administration by granting to every person the right to have his 
or  her  affairs  handled  impartially,  fairly  and  within  a  reasonable  time  by  the  institutions, 
bodies, offices and agencies of the Union – a right that has since been strongly promoted by 
the European Court of Justice.24 The right to good administration includes the right of every 
person to be heard before any individual measure that would adversely affect him or her is 
taken; the right of access to files, while respecting the legitimate interests of confidentiality 
and of professional and business secrecy; the duty of the administration to give reasons for its 
decisions  and  the  possibility  of  claiming  damages.  As  will  be  explained  in  more  detail  in 
section 3 below, Article 298(1) TFEU, read in conjunction with Article 41 CFR, provides the main 
legal basis for the proposed introduction of measures aimed at strengthening the openness, 
efficiency and independence of the EU administration.  

In  the  decades  following  this  first  call,  the  European  Parliament  and  the  European 
Ombudsman  have  extensively  recognised  the  need  for  a  debate  on  the  regulation  of  EU 
administrative  procedure.  During  the  7th  legislature  (2009-14),  the  European  Parliament’s 
Committee on Legal Affairs set up a Working Group on EU Administrative Law aimed at taking 
stock  of  the  existing  EU  rules  on  administrative  law,  and  at  examining  the  possibility  of 
legislative action on the basis of Article 298 TFEU. The findings of the activities of research, 
analysis  and  discussions  of  the  Working  Group  are  summarised  in  a  working  document 
proposing the adoption of a legislative initiative for a single general administrative procedure 
that would be binding on the Union’s administration. The Working Document was approved 
by  the  Committee  on  Legal  Affairs  at  its  meeting  of  22  November  2011.  Following  the 
recommendations of the Working Group and the own-initiative report by the Committee on 
Legal  Affairs  on  15  January  2013,  the  European  Parliament  adopted  a  resolution  with 
recommendations to the Commission on a Law of Administrative Procedure of the European 
Union.25  The  resolution  was  adopted  under  Article  225  TFEU  (legislative  initiative).  The 
resolution implied a request from the Parliament to the Commission to submit a proposal for 
a  regulation  on  a  European  Law  of  Administrative  Procedure  codifying  the  fundamental 
principles of good administration, including and regulating the procedure to be followed by 
the  Union's  administration  in  its  relations  with  the  public.  In  concrete  terms,  the  European 
Parliament  proposed  that  the  following  principles  would  be  codified:  the  principle  of 
lawfulness,  the  principle  of  non-discrimination  and  equal  treatment,  the  principle  of 
proportionality,  the  principle  of  impartiality,  the  principle  of  consistency  and  legitimate 
expectations,  the  principle  of  respect  for  privacy,  the  principle  of  fairness,  the  principle  of 
transparency and the principle of efficiency and service.26 Importantly, already at this time, it 
was made clear that the scope of the Regulation should be limited to the direct administration 
of the EU and should lay down a applicable procedure as a general rule where no lex specialis 
exists  (Recommendation  2).  Furthermore,  the  resolution  lays  down  a  number  of  detailed 
recommendations as to the content of the proposal requested.  

24 Case C-439/11 P Ziegler SA v. the Commission, para. 154. 
25 Resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure 
of the European Union (OJ C 440, 30.12.2015, p. 17). 
26 Ibid. 

18 

 
                                                             
The  European  Commission  responded  on  14  January  2013,  informing  the  European 
Parliament that it would take full account of the Parliament’s recommendations, that it would 
undertake a thorough review of the current legislation in order to evaluate the need for further 
action and that it would consider all options to reinforce the open, efficient and independent 
EU administration.27 The Juncker Commission, and in particular its First Vice President Frans 
Timmermans,  committed  to  examining  the  possibility  of  a  European  law  of  administrative 
procedure, but also expressed a degree of scepticism on the viability and cost-effectiveness of 
the  proposal.  On  9  June  2016,  the  European  Parliament  adopted  a  Resolution  for  an open, 
efficient  and  independent  European  Union  administration,  stressing  that  the  Lisbon  Treaty 
had provided the Union with a legal basis for the adoption of an Administrative Procedure 
Regulation  and  invited  the  European  Commission  to  examine  a  suggested  proposal  for  a 
regulation,  which  closely  followed  the  main  recommendations  included  in  the  2013 
resolution,  and  to  come  forward  with  a  legislative  proposal  to  be  included  in  its  work 
programme  for  the  year  2017.  This  proposal  (see  Box  1)  does  not  entail  a  full  and  total 
harmonisation  either,  but  only  sets  minimum  rules  to  be  applied  by  EU  institutions  while 
leaving  the  possibility  to  adopt  sectoral-specific  rules,  which  would  nevertheless  need  to 
respect the general rules. 

The  European  Commission  again  replied  in  November  2016,  however,  that  ‘as  the  EU 
administers a range of diverse, mostly highly specialised activities, its administration also relies 
on sector-specific rules’, and that it is ‘at this stage, not convinced that the benefits of using a 
legislative  instrument  that would  codify  administrative  law  would outweigh  the  costs’.  The 
Commission in  particular highlighted  that  ‘[f]ollowing  the  Parliament's  proposal  would not 
only  mean  new  legislation.  It  would  also  require  the  revision  of  a  considerable  volume  of 
existing EU legislation. Even where done with care and a sense of proportion, codification is 
likely to lead to problems of delimitation between the general and specific rules – not making 
legislation any clearer or litigation any easier for citizens and businesses affected. It would also 
remove the flexibility required to adapt to particular needs’.28 According to the Commission, 
the draft Regulation from the Parliament ‘does not identify what the gaps and inconsistencies 
in current law are, and therefore what the justification is for coming forward with horizontal 
legislative solutions as a proportionate answer to deal with them. Neither does it assess the 
concrete impact of the provisions it contains’. As a result, ‘[i]nstead of engaging in a highly 
complex  exercise  of  codification,  with  uncertain  added-value,  the  Commission  is  of  the 
opinion that [it] should continue to address concrete problems where they arise, analyse the 
root causes and then take the sort of action that is needed’.29 

In  its  resolution  of  26  October  2017  on  monitoring  the  application  of  EU  law  2015,  the 
Parliament  repeated  its  call  on  the  Commission  to  present  a  comprehensive  legislative 
proposal on a European Law of Administrative Procedure30 The Parliament emphasises that 

27 http://europa.eu/rapid/press-release_SPEECH-13-37_en.htm.  
28 SP(2016)613, 18 November 2016. 
29 Ibid. 
30  See  European  Parliament  resolution  of  26  October  2017  on  monitoring  the  application  of  EU  law  2015 
(2017/2011(INI)), OJ C 440, 30.12.2015. In particular at §35 the Parliament “Stresses that the lack of a coherent and 
comprehensive set of codified rules of good administration across the Union makes it difficult for citizens to easily 
and fully understand their administrative rights under Union law, and also contributes to a deterioration of their 
legal protection; emphasises, therefore, that codifying rules of good administration in the form of a regulation 
setting out the various aspects of the administrative procedure – including notifications, binding time limits, the 

19 

 
 
                                                             
the lack of a coherent and comprehensive set of codified rules of good administration across 
the Union level makes it difficult for citizens to easily and fully understand their administrative 
rights  under  Union  law,  and  also  contributes  to  a  deterioration  of  their  legal  protection.  It 
called for codifying rules of good administration in the form of a regulation setting out the 
various aspects of administrative procedures – including notifications, binding time limits, the 
right to be heard and the right for every person to have access to his or her file –’tantamount 
to  reinforcing  citizens’  rights  and  transparency’.31  It  also  clarified  that  these  rules  would  be 
supplementary  to  existing  EU  law,  when  legal  gaps  or  interpretation  problems  arise,  and 
would bring more accessibility.32 The main content of the European Parliament’s proposal is 
described in Box 1 below. 

Box 1. The European Parliament’s proposal 

The European Parliament’s proposed Regulation is composed of 44 recitals and 30 articles. The 
content of  the  proposal introduces  the following  rights  for  the members of  the  public  and 
corresponding obligations on the EU administration: 

•  The obligation for EU administration to i) notify any decision to initiate an administrative 
procedure to the parties and provide the necessary information enabling them to exercise 
their rights during the administrative procedure; ii) acknowledge receipt of the application 
in writing where the administrative procedure is initiated at the request of a party. 

•  The initiation of an administrative procedure within a reasonable time after the event has 

occurred; the regulation includes provisions on the period of limitation. 

•  The exercise of a duty of care, which obliges the Union’s administration to establish and 
review in a careful and impartial manner all the factual and legal elements of a case, taking 
into account all interests, at every stage of the procedure. The administration should be 
empowered to hear the evidence of parties, witnesses and experts, request documents and 
records  and  carry  out  visits  or  inspections.  When  choosing  experts,  the  administration 
should ensure that they are not affected by a conflict of interest. 

•  The parties should have a duty to cooperate by assisting the administration in ascertaining 

the facts and circumstances of the case; 

•  The conditions and procedures that should be observed for inspections carried out by the 

administration, in order to safeguard the rights of the parties; 

•  The right to be heard by the parties in all proceedings initiated against a person which are 

liable to conclude in a measure adversely affecting that person; 

right to be heard, and the right for every person to have access to his or her file – is tantamount to reinforcing 
citizens’ rights and transparency; clarifies that these rules would be supplementary to existing Union law, when 
legal  gaps  or  interpretation  problems  arise,  and  would  bring  more  accessibility;  reiterates  its  call  on  the 
Commission,  therefore,  to  come  forward  with  a  comprehensive  legislative  proposal  on  a  European  law  of 
administrative procedure, taking into account all the steps already taken by Parliament in this field, as well as the 
contemporary developments in the Union and its Member States”. 
31 Ibid. 
32 Ibid.  

20 

 
 
                                                             
•  The right of a party to the administrative procedure to have access to its own file, bearing 
in mind the protection of the legitimate interests of confidentiality and of professional and 
business secrecy; 

•  The adoption of administrative acts within a reasonable time-limit. Any delay in adopting 
an  administrative  act  should  be  justified  and  the  party  to  the  administrative  procedure 
should be duly informed thereof and provided with an estimate of the expected date of 
the adoption of the administrative act; 

•  The  imposition  of  a  duty  on  the  Union’s  administration  to  state  clearly the  reasons on 
which its administrative acts are based and to enable the parties to defend their rights by 
an application for judicial review; 

•  The  obligation  for  the  Union’s  administration  to  ensure  that  its  administrative  acts  are 
drafted in a clear, simple and understandable language and take effect upon notification 
to  the  parties.  When  carrying  out  that  obligation,  parties  should  have  the  right  to 
communicate and to complete, where possible and appropriate, all procedural formalities 
at a distance and by electronic means; 

•  The right of citizens to write to the Union’s institutions, bodies, offices and agencies in one 

of the languages of the Treaties and to have an answer in the same language; 

•  The right to protection of personal data; 

•  The obligation to ensure that Union rules are clear and precise, so that individuals are able 
to ascertain unequivocally what their rights and obligations are and be able to take steps 
accordingly. 

Against this background, upon the request of the European Parliament’s Committee on Legal 
Affairs  (JURI),  the  European  Parliamentary  Research  Service  selected,  through  a  tender 
procedure, our research team for the drafting of an “Impact Assessment on possible action at 
EU level for an open, efficient and independent European Union administration”. Based on the 
Terms of Reference for this study, the impact assessment will analyse the costs and benefits of 
the  options  identified  and  will  quantify/monetise  such  impacts  to  the  extent  possible.  The 
Impact Assessment will also take due account of the impact of the options on the coherence 
of the EU administrative framework and how they would respect the principles of subsidiarity 
and proportionality. Other impacts mentioned by the Terms of Reference include: the impact 
of the options on the accessibility of the EU administration; the impact of the options on the 
transparency of the EU administration; the extent to which the identified options guarantee 
legal certainty; the extent to which the identified options adequately protect citizens’ rights; 
the impact of the identified options on trust in the institutions; the impact of the identified 
options on the efficiency and effectiveness of administrative procedures; and the regulatory 
costs that the identified options would impose on natural and legal persons and on the EU 
administration. 

Section  1  below  describes  the  methodology  we  followed  in  order  to  complete  this  impact 
assessment. Section 2 contains an analysis and definition of the problem, as well as its main 
drivers. It also describes the possible evolution of the problems in the coming years, in order 
to establish a dynamic baseline, which will then constitute a reference for alternative policy 
options.  This  section  also  summarises  the  results  of  the  consultation  phase,  including  the 
online  consultation  run  by  the  JURI  Committee  of  the  European  Parliament,  the  survey  we 
distributed  to  40  EU  institutions,  bodies  and  agencies  and  the  results  of  a  workshop  we 
organised  to  discuss  some  of  the  findings  of  the  survey.  Section  3  then  reflects  on  the 

21 

 
 
objectives of the proposed initiative, distinguishing between general and specific objectives. 
Section  4  analyses  the  legal  basis,  as  well  as  the  issues  potentially  arising  from  regulatory 
intervention in terms of subsidiarity and proportionality. Section 5 identifies the alternative 
policy  options,  starting  from  the  baseline  or  “do  nothing”  option.  Our  team  selected  two 
further alternative options: i) making the 2001 Code binding on the whole administration and 
ii)  adopting  the  new  regulatory  framework  proposed  by  the  European  Parliament  in  2016. 
Section 6 discusses the benefits and costs of the alternative options, largely from a qualitative, 
but also, where possible, from a quantitative perspective. Options are also compared in terms 
of their effectiveness, relevance and coherence: these evaluation criteria are broken down to 
reflect the taxonomy of impacts used by the Better Regulation Guidelines and Toolbox. At the 
end of the section we illustrate the features of the preferred policy option. Section 7 contains 
proposed provisions for monitoring and evaluation of the preferred policy option over time, 
further  specifies  the  option’s  operational  objectives  and  proposes  a  timeframe  and  a  data 
collection strategy to ensure that monitoring and evaluation are effective. Section 8 briefly 
concludes. 

22 

 
1  Methodological considerations 
This  study  follows  the  structure  of  European  Commission  impact  assessment  studies,  as 
described  in  the  European  Commission  Better  Regulation  Guidelines,  and  approaches  the 
appraisal of policy impacts in line with the methods listed in the Better Regulation Toolbox.33 
Accordingly,  we    start  from  the  definition  of  the  policy  problem  (section  2  below).  Such 
definition does not follow the typical reference to market failures, since the subject matter is 
not linked to the functioning of a market system. Rather, we define the problem as a regulatory 
failure, corresponding to the existing fragmentation of administrative procedures across EU 
institutions,  agencies,  offices  and  bodies  –  and  only  to  the  extent  that  this  affects  the 
openness, transparency and efficiency of EU administration.  

This  definition  then  leads  us  to  undertake  an  extensive  empirical  analysis,  which  relies  on 
several elements: a limited number of scoping interviews with officials and academics with 
strong expertise in the field; a survey distributed to EU institutions, agencies and bodies in the 
months between January and April 2018; desk research on existing codes of administrative 
procedures adopted by EU institutions, agencies and bodies in March-April 2018; a detailed 
analysis of complaints handled by the European Ombudsman, in particular during the period 
of the Juncker Commission; a stakeholder workshop organised on 7 May 2018 to collect ideas 
on an earlier draft of this report; and finally an analysis of the opinions submitted during the 
public consultation run by the JURI Committee on this issue between 15 December 2017 and 
9 March 2018. These data-gathering activities were aimed at validating our definition of the 
policy  problem,  and  thus  ascertaining  whether  the  current  situation  of  EU  administrative 
procedure  really  features  extensive  fragmentation  and  whether  such  fragmentation 
significantly  affected  the  openness,  transparency  and  efficiency  of  EU  administration. 
Throughout the report, we present the findings of our empirical analysis, including opinions 
expressed by stakeholders during the workshop, the interviews and the public consultation.  

This empirical analysis provided us with compelling evidence of the existing fragmentation, 
as well as the potential margins for improving the openness, efficiency and transparency of 
EU administration without sacrificing the flexibility needed to accommodate different needs 
of different EU administrations. The need to provide extensive evidence on the policy problem 
is also related to the lack of evidence highlighted by the European Commission in its formal 
response to the European Parliament in October 2016. As a matter of fact, the methodological 
peculiarity  of  this  Impact  Assessment  is  that  it  was  carried  out  after  a  policy  proposal  had 
already been tabled by the European Parliament. This is not normally the case with Impact 
Assessments, which are carried out from an ex-ante perspective with the objective of selecting 
suitable  policy  options  and  assessing  their  possible  economic,  social  and  environmental 
impacts.  Still,  this  impact  assessment  also  considers  an  intermediate  option  between  the 
baseline and the European Parliament’s proposal. 

This peculiar approach also reverberates on the selection of the alternative policy options. In 
this  context,  we  have  not  included  an  in-depth  assessment  of  more  comprehensive  and 
ambitious  proposals  that  would  go  well  beyond  the  European  Parliament’s  proposal.  For 

33  Both  the  Guidelines  and  the  Toolbox  are  available  at  https://ec.europa.eu/info/law/law-making-
process/planning-and-proposing-law/better-regulation-why-and-how/better-regulation-guidelines-and-
toolbox_en.  

23 

 
 
                                                             
example,  we  did  not  consider  options  that  would  entail  maximum  harmonisation  of 
administrative procedures across the EU administration, since this option would remove the 
needed flexibility in sectors that require ad-hoc rules such as competition policy, trade policy, 
etc.  This  option  would  also  fall  short  of  a  feasibility  check  since  it  is  not  backed  by  any 
institution.  Likewise,  we  have  not  retained  the  option  of  going  beyond  individual 
administrative procedures to also encompass rulemaking, in what would lead to the adoption 
of an EU Administrative Procedure Act similar to the one used in the United States. That option, 
although  also  advocated  by  some  stakeholders  during  our  empirical  investigation,  would 
require a much longer assessment from a legal and economic standpoint, which was seen as 
disproportionate and unfeasible at this stage.  

Concerning the analysis of impacts, we decided to adopt a mix of quantitative and qualitative 
approaches. The subject matter does not lend itself easily to quantification, given that most of 
the associated impacts are not quantifiable (e.g. good governance or transparency). Another 
obstacle that we faced is the lack of reliable data on the current practices of EU institutions, 
agencies,  offices  and  bodies:  given  the  limited  response  rate  to  our  survey,  we  ended  up 
relying on the content of official documents posted on the websites of EU administrations, 
rather  than  on  field data  related  to  their  practice. This  may  lead  to  some inaccuracy  in  the 
assessment of the current situation. In addition, when attempting to quantify specific costs or 
benefits, we have made a selection among those provisions existing in the current European 
Parliament’s proposal that could be more easily quantified due to the availability of the key 
parameters  needed  for  quantification,  or  proxies  that  could  be  used  to  reach  reasonable 
estimates.  In  quantifying  impacts,  we  have  chosen  different  methods  for  calculating  cost 
savings on the side of the administration and on the side of the public. Both revolve around 
the family of methods used within the Standard Cost Model framework (Renda et al. 2013). For 
the former, we relied on existing data from our own empirical analysis, coupled with time and 
cost parameters calculated in previous studies, for example by Frontier Economics (2006) on 
Freedom of Information in the United Kingdom; and tables used by the German government 
as  reference  for  the  calculation  of  the  cost  of  specific  activities  carried  out  by  the 
administration. These were coupled with reasonable assumptions on salary levels in the EU 
institutions. For cost savings on the side of the public, we relied on so-called CASH tables, i.e. 
pre-compiled  tables  used  by  a  number  of  governments  to  attribute  a  specific  duration  (in 
minutes) to selected administrative activities, based on their estimated level of complexity. 
This was done under the assumption that a more transparent and efficient set of provisions in 
the EU administration would reduce the level of complexity of specific administrative activities 
for members of the public. Such approach allowed us to provide an estimate of the magnitude 
of potential savings on both sides.  

The  final  impact  assessment  and  comparison  of  options  were  carried  out  by  means  of  a 
scorecard table, in which the intensity of specific impacts is described in a common metric, 
regardless  of  whether  the  underlying  analysis  is  qualitative  or  quantitative.  This  method 
proved optimal and sufficient to show how the two alternative options perform in our analysis. 
All  other  phases  of  this  Impact  Assessment  have  been  carried  out  in  full  adherence  to  the 
Better Regulation Guidelines and Toolbox.  

24 

 
2  Definition of the problem 

  There is no disagreement on the existing fragmentation 

There is no disagreement in the academic and policy-oriented literature regarding the facts 
that  the  regulation  of  EU  administrative  procedure  is  highly  fragmented  and  that  this  is  a 
problem. Of course, one can argue that fragmentation is not a problem per se, unless it leads 
to a lack of openness, efficiency and independence of EU administrations. Still, some authors 
assume  that  fragmentation  is  a  problem in  and of itself,  reasoning  from  the perspective  of 
coherence,  accessibility  and  simplicity  of  the  law.  Harlow  and  Rawlings  (2014,  333),  for 
instance,  mention  a  ‘coverage’  that  is  ‘spotty,  difficult  to  access  and  leaves  obvious  gaps’. 
Others have attempted to specify the problematic nature of fragmentation in this area of law. 
The  European  Risk  Forum’s  publication  on  ‘EU  Law  of  Administrative  Procedures  –  The 
Rationale’34 states an ‘acute need’ for a general EU Law of Administrative Procedure by listing 
several  ‘structural  weaknesses’,  which  are  illustrated  by  ‘exhibits’.  For  Ziller  (2011a),  it  is  a 
matter  of  the  magnitude  of  the  fragmentation,  which  makes  EU  administrative  law 
(‘fragmented, too much fragmented indeed, and […] contains too many gaps’ (Ziller 2011a, 
6))  fall  short  of  the  best  standards  of  ‘an  open,  efficient  and  independent  European 
administration’ (Art. 298 TFEU) and the right to good administration as expressed in Article 41 
(1)  EU  Charter  of  Fundamental  Rights.  Ziller  also  emphasises  the  discrepancy  between  the 
‘proliferation of new forms of administrative action in the EU and their regulatory framework’ 
(Ziller 2011a, 6) on the one hand, and their embeddedness in various control and legitimacy 
mechanisms, on the other. The fact that this gap is growing leads to a ‘lack of transparency, 
predictability, intelligibility and trust in EU administrative and regulatory procedures and their 
outcome’  (Ziller  2011a,  6).  Empirical  evidence  suggests  that  these  problems  are  indeed 
experienced by citizens and other stakeholders of EU administration.35  

The  case  law  of  the  Court  of  Justice,  important  as  it  is  as  a  source  of  current  EU  law  of 
administrative  procedure,36  is  not  a  good  source  for  getting  a  firmer  grip  on  the  potential 
problem of diminishing trust on the part of citizens. Case law analysis would not add much to 
the problem definition in this context, for three reasons: i) because a citizen-oriented generic 
administrative procedure act is precisely absent; ii) because the court always rules in individual 
cases, and as such hardly tackles the issue of a lack of generality; and iii) because the barriers 
to court access for private citizens are high.  

The  perspective  on  the  intended  addressees  of  a  regulatory  framework  for  administrative 
procedures  –whether  unified  or  fragmented  –  is  highly  relevant,  however.  The  European 
Commission’s  replies  to  the  Parliament’s  resolutions  reveal  a  perspective  on administrative 
activity as being of a professional nature mainly (‘the EU administers a range of diverse, mostly 
highly  specialised  activities’). 
law, 
administrative  interactions  will  be  between  highly  trained  professionals,  for  whom  the 

Indeed,  for  certain  sectors  such  as  competition 

34 Policy Note 30, May 2014 
35 See Section 1.3.3 below for an analysis of the recent consultation carried out by the JURI committee of the 
European Parliament. 
36 See footnotes 20-22 for examples. 

25 

 
 
                                                             
existence  of  tailor-made  sector-specific  rules  is  only  convenient.  However,  there  are  two 
arguments to be made to counter this view. First of all, even among business addressees, not 
all actors possess vast resources to use sector-specific rules to their advantage; moreover, it is 
one  of  the  fundamental  rationales  of  administrative  law  that  this  area  of  law  exists  so  that 
actors of public administration are forced or encouraged to minimise the fundamental lack of 
equality between them and those over whom they hold power. Secondly, we simply do not 
know which ‘activities’ may turn out to have an administrative aspect in the future, or in which 
situations citizens may want to engage with the administration. As the study reporting on the 
findings  from  the  public  consultation  by  the  JURI  Committee  also  mentions,  ‘[t]here  is  no 
comprehensive catalogue of services directly provided by the EU administration to citizens or 
businesses’. Therefore, and as reflected in the way the consultation survey was set up, what 
counts  as  ‘administrative  activity’  is  at  least  in  part  determined  by  the  perspective  of  the 
citizen.  Assuming  this  broader  view  of  the  ‘administrative  arena’,  not  having  a  code  or 
regulation containing default rules appears to be a missed opportunity from the perspective 
of both efficiency and accessibility. 

In view of the need to look beyond administrative activity involving professionals mainly, the 
database of complaints received by the European Ombudsman over the past few years is a 
useful source. Here too, a caveat is inevitable, since there could be problems of selection bias 
due to the fact that the lack of (clear) information on the existence and mode of protection of 
a specific right might give rise to few or no complaints before the Ombudsman or courts. Cases 
of misconduct that are not accompanied by specific procedures for filing complaints, or for 
which stakeholders perceive that the procedure is uncertain, lengthy and costly, end up being 
inevitably under-represented. 

During  the  drafting  of  this  Impact  Assessment,  consistent  opinions  on  the  relevance  and 
extent  of  existing  fragmentation  were  also  expressed  by  interviewees  and  stakeholders,  in 
particular during the workshop we organised on 7 May 2018. Also, as will be set out in more 
detail  below,  the  public  consultation  launched  by  the  JURI  Committee  of  the  European 
Parliament largely confirmed that stakeholders are favourably disposed to the introduction of 
rules that would provide for a minimum harmonisation of administrative procedure across the 
EU administration.  

  Current legal fragmentation of selected issues 

Within  the  scope  of  this  report  it  is  not  possible  to  map  the  existing  legal  fragmentation 
comprehensively and in detail, because of the number of relevant issues (see the summary of 
the  European  Parliament’s  proposal  in  Box  1  for  an  impression)  in  combination  with  the 
number of relevant policy fields and EU bodies. Instead we have selected a number of issues 
for which we briefly sketch the current legal situation in terms of its degree of fragmentation, 
in order to be able to gauge the legal and institutional impacts of potential efforts to bring 
more uniformity to the way in which they are regulated (see section 5): the right to access  the 
file, time limits, the right to be heard and the right to information about the procedure. These 
issues  have  been  selected  for  being  relatively  uncontested  as  core  areas  of  general 
administrative law, as also evidenced by the frequency with which they appear in the codes 
we analysed (60-90%, see Figure 9 below). This finding rules out contestation as a driver of 
fragmentation,  making  it  possible  to  look  at  the  state  of  fragmentation  and  the  effects  of 

26 

 
reducing  it  per se.  At  the same  time, we  have deliberately  chosen  two issues  already  firmly 
embedded in European primary and secondary law as legal requirements with a fairly general 
reach (access to the file and the right to be heard) and two issues for which this is not the case, 
or  at  least  to  a  much  lesser  extent  (time  limits  and  the  right  to  information  about  the 
procedure).  

2.2.1  Right to access to the file 

The right to gain access to one’s case file is a component of the right to good administration 
(Article 41 (2)(b) CFR), as well as of the right to be heard and the right of defence (Craig 2012, 
326).  In  addition,  such  a  right  may  be  interpreted  as  a  sub-species  of  the  right of  access  to 
documents  promoted  both  as  a  general  principle  of  EU  law  and  through  provisions  of  EU 
primary law (Article 42 CFR and Article 15 (3) TFEU), and the subject of an individual regulation 
(Reg. 1049/2001). Its main purpose is to allow an ‘equality of arms’ in investigations, meaning 
that an affected party should be able to access the same documents and evidences included 
in the file held by the administration, in order to prepare representations in its own defence.37 

This process right has been developed by case law in the area of competition law and is now 
explicitly shaped in the regulation governing that policy-area.38The fact that it is available in 
numerous other countries, however, allows it to draw from it a general principle of EU law that 
can be invoked in EU courts. According to Craig (2012, 327), it is now clear that the right of 
access to the file can be applied by analogy outside of competition cases in areas where no 
specific regulation is provided. As already ruled in Eyckeler,39 the right to access the file can be 
enforced in other contexts if necessary to challenge administrative decision, by applying the 
reasoning from competition cases. This would serve to make the right to be heard effective 
and to avoid a serious breach of the rights of the defence. 

The European Parliament’s proposal contains a provision that codifies this interpretation: 

Article 8 - Procedural rights 

The parties concerned shall be granted full access to the file, while respecting the 
legitimate interests  of  confidentiality  and  of  professional  and  business  secrecy. 
Any limitation to this right shall be duly reasoned. 

Where no full access to the entire file can be granted, the parties shall be given an 
adequate summary of the content of those documents. 

In  addition  to  codifying  the  aforementioned  case  law,  the  provision  clarifies  particular 
limitations to the right to access to the file, such as documents that contain business secrets 
and  confidential  information.  However,  the  provision  seems  to  miss  the  opportunity  to 
provide clarity on other important constraints to this right, such as the impossibility to access 
files  in  cases  involving  other  persons  or  when  the  documentation  contained  in  the  file  is 
irrelevant with regard to the allegations in the statement of objection.40 

37 See Case C-310/93 P BPB Industries and British Gypsum v Commission ECLI:EU:C:1995:101, para. 25.  
38 See Article 27(1) and (2) of Council Regulation (EC) No 1/2003 and relevant implementing regulations. 
39 Case T-42/96 Eyckeler & Malt AG v Commission of the European Communities ECLI:EU:T:1998:40, paras. 79-80. 
40 See Case C-204-205/00, P Aalborg Portland A/S and Others v Commission ECLI:EU:C:2004:6. 

27 

 
 
                                                             
2.2.2  Right to be heard 

The right to be heard, which is embedded in Article 41 (2)(a) CFR,41 is one of those issues that 
the  Court  of  Justice  has  long  insisted  is  a  general  rule  of  EU  law  (Craig  2012,  290-292).42 
Although initially the right to be heard appeared to be limited to situations in which a sanction 
was  imposed,43  current  case  law  only  requires  that  there  is  an  adverse  impact  on  the 
applicant’s interests or that these have been significantly affected (Craig 2012, 290; Craig et al. 
2017,  123).  A  codification  of  the  latter  criterion  would  offer  greater  legal  certainty  in  this 
regard. Muzi (2017, 488), using quantitative analysis of the case law of the Court of Justice, 
concludes that there is an increased predisposition on the part of the EU Courts to admit due 
process  claims  with  regard  to  administrative  decision-making.  Specific  requirements  for  EU 
bodies  to  give  those  affected  by  individual  decisions  an  opportunity  to  make  their  views 
known may be found in a variety of regulations, directives and decisions. 

2.2.3  Time limits 

The current legal framework regulating time limits in administrative procedures is scattered in 
the  sense  that  time  limits  may  often  be  found  in  legislation  specific  to  the  activities  of  a 
particular agency. That said, the limits of two months and three months respectively, recur 
frequently,44 suggesting that three months – as per the European Parliament’s proposal45 – 

41 EP proposal, Article 14: ‘Right to be heard 

1.  The parties shall have the right to be heard before any individual measure which would adversely affect them 
is taken. 

2.  The parties shall receive sufficient information and they shall be given adequate time to prepare their case. 

3.  The parties shall be given the opportunity to express their views in writing or orally, if necessary, and if they so 
choose, with the assistance of a person of their choice.’ 
42 A landmark case in this regard is Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, [15]. 
43 Case 85/76 Hofmann-La Roche v Commission [1979] ECR 461, [9]. 
44 Regulation on ESMA, Regulation No 1095/2010, Art. 60, para. 2: ‘(…) The Board of Appeal shall decide upon the 
appeal within 2 months after the appeal has been lodged.’; Art. 15, para. 1: ‘ (…) Within 3 months of receipt of a 
draft implementing technical standard, the Commission shall decide whether to endorse it. The Commission may 
extend that period by 1 month. The Commission may endorse the draft implementing technical standard in part 
only, or with amendments, where the Union’s interests so require. (…)’ The regulation on EIOPA contains similar 
rules: Regulation on EIOPA, Regulation 1094/2010, Art. 60, para. 2: ‘(…) The Board of Appeal shall decide upon the 
appeal within 2 months after the appeal has been lodged.’ Regulation on Europol, Regulation No 794/2016, Art. 
36, para. 4: ‘Europol shall confirm receipt of the request under paragraph 3. Europol shall answer it without undue 
delay, and in any case within three months of receipt by Europol of the request from the national authority.’; Art. 
37, para. 9: ‘Within three months of receipt of a request in accordance with paragraph 1 or 2, Europol shall inform 
the data subject in writing of any refusal of rectification, erasure or restricting, of the reasons for such a refusal 
and of the possibility of lodging a complaint with the EDPS and of seeking a judicial remedy.’ 
45 EP proposal, Article 17: ‘Time-limits 

1.  Administrative acts shall be adopted and administrative procedures shall be concluded within a reasonable 
time-limit and without undue delay. The time-limit for the adoption of an administrative act shall not exceed three 
months from the date of: 

(a)    the  notification  of  the  decision  to  initiate  the  administrative  procedure  if  it  was  initiated  by  the  Union’s 
administration, or 

(b)  the acknowledgment of receipt of the application if the administrative procedure was initiated by application. 

2.  If no administrative act can be adopted within the relevant time-limit, the parties concerned shall be informed 
thereof and of the reasons justifying the delay and they shall be provided with an estimate of the expected date 

28 

 
                                                             
could be a suitable default time limit. Competition law has many more tailored time limits, 
expressed in working days rather than months, specific to certain elements of procedures.46 
This  is  not  incompatible,  however,  with  the  suggestion  that  a  general  act  regulating 
administrative  procedure  could  leave  room  for  sector-specific  rules,  in  particular  in 
competition law. The aforementioned Regulation No 1049/2001 also has deviating time limits 
of normally 15 days (Articles 7 and 8). Hofmann (2014, 25) contends that the notions of fairness 
in the wider sense and legal certainty are also relevant for the right to the treatment of an issue 
‘within  a  reasonable  time’  as  ‘slow  administration  is  bad  administration’.47  Existing  general 
rules  also  include  the  calculation  of  administrative  time  limits,48  and  these  could  easily  be 
referred to in a general act on administrative procedure. 

2.2.4  Right to information about the procedure 

The  European  Parliament’s  proposal  (as  well  as  the  proposal  for  ‘Model  Rules  on  EU 
administrative procedure put forward by the academic Research Network in European Union 
Administrative Law (ReNEUAL)’ – see Craig et al. 2017) contain some requirements that can be 
grouped under the heading of ‘right to information about the procedure’. The main provision 
operationalising said right reads: 

Article 8 - Procedural rights 

The parties shall have the following rights related to the management of the procedure: 

(a) 
understandable manner; 

to  be  given  all  relevant  information  related  to  the  procedure  in  a  clear  and 

(…) 

of  adoption  of  the  administrative  act.  Upon  request,  the  competent  authority  shall  respond  to  questions 
concerning the progress of the consideration of the matter. 

3.    If  the  Union’s  administration  does  not  acknowledge  receipt  of  the  application  within  three  months,  the 
application shall be deemed to be rejected. 

4.  Time-limits shall be calculated in accordance with Regulation (EEC, Euratom) No 1182/71 of the Council.’ 
46 The time limits in Regulation 139/2004, art. 10, are 25 days (which can be increased to 35 days), and 90 days 
(which can be increased to 105 days). (Hofmann et al. 2011, 378, 379). There is also a type of lex silencio positivo 
in art. 10 paragraph 6. EC Merger Regulation, Regulation No 139/2004, Art. 10: ‘1. Without prejudice to Article 6(4), 
the decisions referred to in Article 6(1) shall be taken within 25 working days at most. That period shall begin on 
the  working  day  following  that  of  the  receipt  of  a  notification  or,  if  the  information  to  be  supplied  with  the 
notification is incomplete, on the working day following that of the receipt of the complete information. That 
period shall be increased to 35 working days where the Commission receives a request from a Member State in 
accordance with Article 9(2)or where, the undertakings concerned offer commitments pursuant to Article 6(2) 
with a view to rendering the concentration compatible with the common market. (…) 3. Without prejudice to 
Article 8(7), decisions pursuant to Article 8(1) to (3) concerning notified concentrations shall be taken within not 
more than 90 working days of the date on which the proceedings are initiated. That period shall be increased to 
105  working  days  where  the  undertakings  concerned  offer  commitments  pursuant  to  Article  8(2),  second 
subparagraph, with a view to rendering the concentration compatible with the common market, unless these 
commitments have been offered less than 55 working days after the initiation of proceedings.’ 
47 AG Jacobs in C-270/99 P Z v Parliament [2001] ECR I-9197, para. 40 with reference to Art. 41 Charter and claiming 
that this was ‘a generally recognised principle’. 
48 Regulation (EEC, Euratom) 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, 
dates and time limits, OJ 1971 L 124/1. 

29 

 
 
                                                             
A more specific and more detailed requirement in this regard is: 

Article 28 - Online information on rules on administrative procedures 

1. The Union’s administration shall promote the provision of updated online information on the 
existing  administrative  procedures  in  an  ad-hoc  website,  wherever  possible  and  reasonable. 
Priority shall be given to application procedures. 

2. The online information shall include: 

(a) a link to the applicable legislation, 
(b) a brief explanation of the main legal requirements and their administrative interpretation, 
(c) a description of the main procedural steps, 
(d) the indication of the authority competent to adopt the final act, 
(e) the indication of the time-limit for the adoption of the act, 
(f) the indication of remedies available, 
(g) a link to standard forms that may be used by parties in their communications with the Union’s 
administration within the procedure. 

3. The online information set out in paragraph (2) shall be presented in a clear and simple way. 
Access to that information shall be free of charge. 

With regard to this latter provision (III-4 in ReNEUAL) the explanations of the ReNEUAL Model 
Rules state that the requirements it contains are not very common comparatively speaking 
(Craig et al. 2017, 102). However, s 

Such  requirements,  however, 
‘seem  necessary  in  order  to  adapt  the  regulation  of 
administrative procedures to the information society and to fulfil the expectations of citizens 
with  regard  to  e-government’  (ibid.). The  added  value  of  a  generic  requirement  to  provide 
parties  with  all  relevant  information  related  to  the  procedure  in  combination  with  more 
detailed rules on which part of this information should be retrievable online mainly occurs in 
application procedures. Here there are no rules in place that are comparable to the provisions 
cited above. This is a bit different for procedures involving sanctions that are imposed, since 
in such situations there often are already requirements to inform addressees individually laid 
down in sector-specific legislation and/or case law. 

  Empirical evidence confirms that fragmentation exists and 
leads to problems 

There are many ways to describe the status quo: data, although not abundant, exist on various 
aspects of EU bodies’ administrative procedures. In order to fully describe the problem, we 
analyse the complaints received by the European Ombudsman in recent years; and report on 
our survey of EU bodies, complemented by the results with desk research on all available 30 
codes  of  good  administration  (7  of  which  are  mere  adoptions  of  the  2001  Code  of  Good 
Administrative Behaviour) out of a population of 65 EU institutions, bodies and agencies. This 
exercise is intended to map the differences between these documents and, where possible, 
the  discrepancy  between  the  text  of  the  existing  codes  and  the  Parliament’s  proposed 
regulatory framework. Moreover, we have analysed the results of the public consultation run 
by the JURI Committee of the European Parliament between 15 December 2017 and 9 March 
2018 (section 2.3.3). 

30 

 
2.3.1  An analysis of the European Ombudsman’s recent activities 

In  this  section,  we  describe  recent  European  Ombudsman  (EO)  inquiries  related  to  alleged 
maladministration in EU institutions.49 This analysis will serve as a proxy to pinpoint the areas 
in  which  major  problems  in  the  relationship  between  the  EU  administrations  and  citizens 
emerge. 

Pursuant  to  Article  228  TFEU,  the  EO  is  entrusted  to  combat  maladministration  by  the 
executive branch of the EU.50 To fulfil this task, she is requested (but not obliged) to implement 
‘The  European  Code  of  Good  Administrative  Behaviour’  (ECGAB).  Adopted  by  the  EU 
Parliament in 2001 in the form of a resolution, the Code is a soft-law instrument that retains a 
vital role to illustrate the function of the EO vis-à-vis the EU administration. In fact, the Code 
reflects  three  different  connotations  of  good  administration  (Mendes  2009).  In  addition  to 
codifying general principles of EU administrative law, it restates procedural and substantive 
rights  and  duties  resulting  from  EU  law,  as  well  as  promotes  standards  of  administrative 
practices directed at encouraging a culture of service.  

When  analysing  the  EO’s  position  and  role  to  identify  structural  problems  of  the  EU 
administration, some aspects seems particularly relevant, as discussed below.  

• 

In  order  to  exercise  the  power  to  conduct  own-initiative  investigation,  the  EO  should 
necessarily  have  a  broader  picture  of  the  status  quo  of  the  EU  administration.  In  this 
respect,  own-initiative  investigations  are  particularly  important  to  identify  endemic 
problems in the EU administration.51  

•  The  EO  can  exert  a  stronger  impact  than  courts  in  promoting  standards  of  ‘good 
administration’.  Not  only  can  it  inspect  administrative  behaviour  and  ask  for  relevant 
documents  (which  EU  institutions  are  obliged  to  supply),  but  it  can  also  monitor  the 
implementation of its decisions. As such, the analysis of the EO decisions can provide a 
more truthful picture of the issues affecting the EU administration and its relationship with 
citizens.  

•  Finally,  as  already  observed,  due  to  the  lack  of  a  comprehensive  body  of  rules  on 
administrative procedure, EU case law is scattered and offers little clarity on the scope of 
the  problems  involved  in  the  area,  whereas  the  EO  has  more  scope  to  create  her  own 
understanding  of  the  concept  of  ‘good  administration’  and  to  provide  redress  to  the 
affected citizens (Harlow and Rawlings 2014). 

49 The following analysis focuses on the inquiries closed by the EO since the Juncker Commission took office – i.e. 
over a period of about four years’ time between 1 November 2014 and 22 May 2018. It contains an elaboration of 
the data supplied by the EO and collected from the EO annual reports (for the years 2015, 2016 and 2017). 
50  This  broad  goal  involves  ensuring  greater  positive  impact  on  the  transparency  and  accountability  of  the 
administrative  institutions  and  agencies  to  the  benefit  of  EU  citizens  and  residents.  The  EO  may  find 
maladministration if an institution fails to respect fundamental rights, legal rules or principles, or the principles of 
good administration. This covers administrative irregularities, unfairness, discrimination, abuse of power, failure 
to reply, refusal of information, and unnecessary delay, for example. Any citizen or resident of the EU, or business, 
association, or other body with a registered office in the EU, can lodge a complaint, also when not individually 
affected by the maladministration to complain. 
51 For instance, in 1996 the then EO Söderman announced that the purpose of creating the office of EO was to 
emphasize the Union’s commitment to transparency, due to the numerous issues emerging during his term. See 
Harlow and Rawlings 2014. 

31 

 
 
                                                             
Nonetheless,  the  EO’s  role  in  promoting  standards  of  good  administration  across  the  EU 
executive faces some clear limitations. This element must be taken into account when trying 
to draw general patterns or trends from its decisions.  

•  The number of inquiries closed by EO decisions is relatively low (around 250-350 per year), 
also as compared to the total number of complaints received (between 1200 and 2800). 
This  means  that  an  empirical  analysis  of  its  inquiries  might  not  capture  all  problems 
affecting EU administration.  

•  Since  the  EO  is  entrusted  to  combat  ‘maladministration’  committed  by  the  executive 
branch  of  the  EU  in  its  direct  contact  with  citizens,  its  attention  is  mainly  focused  on 
instances  of  direct  administration  (De  Leeuw  2003).  Yet,  EU  administrative  tasks  are 
increasingly exercised through models of joint and shared administration and composite 
decision-making, for which the EO is said to be ill-equipped to exercise control (De Leeuw 
2003), given the likely difficult to disentangle the activities of the EU institutions that may 
endanger private interests.  

•  Given the rather flexible concept of ‘maladministration’, the position and activities of the 
EO strongly depend on how the individual occupying the office interprets his/her tasks.52 
It may thus be difficult to draw an overall picture of the role of the EO in enforcing uniform 
standards of good administration over the years. 

•  The EO’s decisions about maladministration are neither enforceable, nor do they produce 
binding effects for the EU institutions concerned. In addition, the EO can only initiate an 
investigation if EU or national Courts have not taken action on the same case. Therefore, 
the EO may at times play a limited role to enhance observance of good administration in 
EU institutions. 

Figure 1 below shows the breakdown by type of complainant of inquiries closed by the EO in 
2014-18. It clarifies that 71% of the complaints come from citizens, followed by associations or 
consortia, EU staff and companies.  

52 For instance, while the current EO, Emily O’Reilly, and her predecessor, Nikiforos Diamandouros, have adopted 
a strategy of launching a set of systemic investigations and placed more emphasis on the consumer-watch role, 
another one (Jacob Söderman) saw himself more as a redress-ombudsman. See Harlow and Rawlings 2014. 

32 

 
                                                             
Figure 1 – Inquiries closed the EO in 2014-18, by complainant 

Source: Own elaboration on official data from the EO. 

2.3.1.1  Finding 1: The European Commission is the biggest subject source of the 

complaints over maladministration 

Overall, while the number of complaints submitted to the EO has been rather stable during 
the last three years (707 in 2015, 711 in 2016 and 751 in 2017), the number of inquiries opened 
by the EO steadily increased during the same period (261 in 2015, 245 in 2016 and 447 in 2017). 
This may imply that more complaints fell outside the competences of the EO and that the new 
implementing procedure is extending the EO’s powers of control over the EU administration.53 
Compared  to  the  generality  of  the  enquiries,  the  number  of  inquiries  settled  by  the  EU 
administration  is  rather  stable  (148  in  2015,  145  in  2016  and  166  in  2017);  those  where  no 
maladministration was found slightly increased (79 in 2015, 89 in 2016 and 164 in 2017); and 
decisions where no further inquiries were justified are reducing (54 in 2015, 52 in 2016 and 27 
in 2017). The actual number of decisions of maladministration taken by the EO over the same 
period  follows  a  rather  similar  decreasing  pattern  (30  in  2015,  20  in  2016  and  24  in  2017). 
Overall, then, the compliance rate of the EU administration with the EO’s proposal is rather 
high, especially compared to the years before the Juncker Commission took office.54 However, 
the  compliance  rate  has  decreased  lately  from  90%  in  2015  to  85%  in  2017  (with  the 
Commission scoring an even lower 77% in 2017).55 

53 EO Annual report 2017, 41. 
54 EO Annual report 2015, 5. 
55 EO Annual report 2017, 44. 

33 

 
 
 
                                                             
Figure 2 below shows results the inquiries closed in 2014-18 by the EO.56 The data demonstrate 
that in more than 46% of the decisions the case was settled by the institution concerned and 
in 31% of the cases no maladministration was found, whereas 7% of the inquiries were closed 
with a finding of actual maladministration.  

Figure 2 – Results of the inquiries closed by the EO in 2014-18  

Source: Own elaboration on official data from the EO 

Regarding the EU administrations involved in the investigation, the majority of the EO’s closed 
inquiries  concerned  complaints  related  to  the  behaviour  of  the  European  Commission, 
accounting for about 58% of all cases in the period considered. Throughout these years, the 
number of decisions involving the Commission has been rather stable, accounting for 55.5% 
of all cases in 2015 (145 cases), for 58.8% in 2016 (144 cases) and for 57% in 2017 (256 cases).  

56 Certain inquiries in the period have been closed both as ‘settled by the institutions and as ‘no further inquiries 
justified’. 

34 

 
 
 
                                                             
 
Figure 3 – Inquiries closed the EO in 2014-18, by EU administration concerned 

Source: Own elaboration on official data from the EO 

This  conclusion  can  be  explained,  on  the  one  hand,  by  the  administrative  size,  output  and 
range of duties of the institution57 as compared to the other branches of the EU administration, 
and, on the other hand, by the scope of its administrative activities, which normally have a 
more direct impact on people’s lives and businesses (especially as compared to EU agencies).  

EU agencies, EPSO and the Parliament have been the other major targets of investigations. EU 
agencies have been investigated by the EO in 11.5% of all inquiries in 2015 (30 cases), 12.3% 
in 2016 (32 cases) and 7.8% in 2017 (35 cases); EPSO between 5.7% and 10% of the total (14 
inquiries in 2015, 26 in 2016 and 34 in 2017); the EU Parliament between 8% in 2015 (21 cases), 
6.5% in 2016 (16 cases) and 4.9% in 2017 (22 cases). For the EU agencies, major cases focused 
especially on the lawfulness and transparency of their decision-making procedures, such as in 
two  cases involving  the  approval  of medicines  by  the  European Medicines  Agency58 or  the 
registration of products by the European Chemicals Agency.59 

Other relevant EU executive structures inquired by the EO in the mentioned period are the 
Council of EU, the European Council and the trilogue, as well as the European Investment Bank 
(EIB)  and  the  European  Central  Bank  (ECB).  Their  low  scores  in  the  present  analysis  is 
presumably  due  to  their limited  direct  interaction  with  EU  citizens. However, each of  these 
structures have been targeted by the EO in her effort to promote broader accountability and 
transparency in lobbying activities in key areas and topics of EU decision-making,60 such as 
economic and financial matters or the Brexit negotiations, because they produce substantial 
effects on the daily lives of EU citizens, as well as on national administrations and companies. 

57 EO Annual report 2015, 16. 
58 EO Annual report 2016, 15; EO Annual report 2017, 16. 
59 EO Annual report 2016, 15. 
60 EO Annual report 2017, 10-13. 

35 

 
 
 
 
                                                             
2.3.1.2  Finding 2: Lack of transparency is the most recurrent subject of inquiries 

In general, among the subject matter investigated by the EO,61 transparency issues of the EU 
executive rank the highest, with 22.4% of the total cases in 2015 (62 cases), 29.6% in 2016 (86 
cases), and 20.6% in 2017 (75 cases). The most common transparency issues, guaranteed also 
by the Charter of Fundamental Rights of the EU, are the refusal to grant access to files and the 
refusal to provide information (respectively around 5.2% and 16.2% of the total cases in the 
period 2014-18).62 This result is in part surprising, given the fact that Regulation 1049/2001 is 
traditionally pointed to as one of the few cases where a common body of rules is shared across 
most of the EU administrations. What emerges from the cases handled by the EO, however, is 
not  only  that  the  scope  of  application  of  these  rules  is  contested,63  but  also  that  certain 
executives  follow  provisions  that  are  still  not  in  line  with  those  laid  down  in  Regulation 
1049/2001.64 

Figure 4 – Inquiries closed by the EO in 2016-17, by subject matter 

Source: Own elaboration on official data from the EO. 

Moreover, transparency involves also behaviours of the EU administrations about the (lack of) 
reasoning  behind  decision-making  (about  2.5%  of  the  cases  in  the  period  2014-2018)  and 

61 On this aspect, the classification made by the EO on its decisions has changed since 2016. For this reason, the 
following analysis compares the subject matter of the inquiries closed by the EO compared only for the years 
2016-2017. 
62 Given the fact that both issues are time-sensitive, the EO has lately introduced a new fast-track procedure for 
these complaints where an individual can receive a response within weeks (instead of months). EO Annual Report 
2017, 8. 
63 EO Annual Report 2016, 8. 
64 EO Annual Report 2017, 8. 

36 

 
 
 
                                                             
violation of the right to public participation in EU decision-making (around 2% of the cases in 
the year 2017). The apparently unexpected low score of these two categories can have three 
main  explanations:  first,  it  shows  that  EU  institutions  perform  rather  well  in  these  sectors; 
second, it may be explained by the fact that violation of rights and the duty to state reasons 
are  fundamental  issues  that  are  mostly  dealt  with  in  judicial  review  (rather  than  with  soft 
modes of resolutions, such as the EO); third, as for the participation in EU decision-making, it 
demonstrates  that  this  procedure  is  still  little  deployed  and  challenged  by  citizens. 
Nevertheless, the EO is currently making a great effort to contribute to the improvement of 
citizens’  participation  in  the  EU  decision-making  process,  by  handling  complaints  on  the 
procedure and monitoring how the European Commission will manage the process.65 

Regarding the relationship between the EU administration and citizens, issues connected to 
the level and culture of service (such as friendliness, language and timeliness) have been one 
of the major subjects of complaints (17% of total cases), as much as respect for procedural 
rights, including the right to be heard (10% of the total cases). Conversely, fundamental rights 
have not been major issues of investigation for the EO (constituting 7% of total complaints). 
Given their key relevance, however, they have been part of five strategic investigations started 
on the EO’s own initiative (for instance, the strategic initiative closed in 2016 on asylum and 
refugee  policies).66  Other  subjects  of  inquiries  handled  by  the  EO  have  related  to  sound 
management  of  EU  personnel  (recruitment  and  conflicts  of  interests)  (at  around  15%),  and 
complaints regarding the Commission’s use of discretion (also at around 13%).  

A slightly similar pattern emerges from the EO’s strategic inquiries. In addition to the above-
mentioned issues of respect of fundamental rights (28.5% of the total strategic inquiries), the 
largest number of inquiries concern transparency issues and occur mainly when the right to 
access to a file is violated (6 cases or 42.8% of the total number of inquiries). On both aspects, 
as well as on ethical issues of (current or former) personnel of the EU administration, the EO is 
devoting  considerable  energy  in  order  to  promote  good  administration  across  the  EU 
executive. 

Transparency 
issues  also  emerge  as  problems  in  the  relationship  between  the  EU 
administration  and  citizens  and  companies  from  the  types  of  maladministration  mainly 
involved  in  the  EO’s  investigations.  During  the  period  investigated,  complainants  mainly 
invoked provisions of the ECGAB related to failure to reply to a request for information (16.2% 
of the cases), failure to respect the time limits of the procedure (15.2%) and violation of the 
right to be heard (9.8%).  

65 EO Annual Report 2017, 18. 
66 See EO complaint n. SI/1/2015/MHZ. 

37 

 
 
                                                             
Figure 5 – Inquiries closed by the EO in 2014-18, by allegation 

Source: Own elaboration on official data from the EO. 

2.3.1.3  Finding  3: 

‘General,  financial  and  institutional  matters’  represent 

around half of the total cases handled 

About the fields of law67 where most findings of maladministration emerged, around half of 
the total cases (52% of the cases in the category) fall within the broad category of ‘general, 
financial  and  institutional  matters’  and  this  figure  is  rather  stable  throughout  the  period 
investigated.  This  result  is  not  unexpected,  given  the  broad  category  considered,  which 
involves a large number of issues connected to the functioning of the institutions and their 
decision-making process. 

Other  policy  fields  where  numerous  cases  have  emerged  are  environment,  consumers  and 
health policies (7,5 % of the total cases), the area of freedom, security and justice (6,5% of the 
total cases) and the freedom of movement of workers and social policies (4,9% of the total 
cases). This finding should be connected to the fact that administrative behaviours in these 
areas are most likely to affect citizens. Indeed, being policies that may produce a deep impact 
on  EU  citizens’  lives  and  involve  a  vast  number  of  administrative  activities  (including 
enforcement), it is not surprise that they gave rise to a vast number of EO decisions over the 
period investigated.  

Inquiries on the use of administrative power in competition policy enforcement are instead 
low  in  numbers  (2,3%  of  the  total  cases),  but  they  are  nevertheless  important  due  to  the 

67 On this aspect, the classification followed by EO on its decisions has changed since 2016. For this reason, the 
following analysis compares the field of law of the inquiries closed by the EO only for the years 2014-2016. 

38 

 
  
                                                             
relevance  of  the  administrative  procedures  within  the  EU  executive  (instances  of 
maladministration  here  mainly  relate  to  issues  of  access  to  documents68  and  the  lawful 
conduct of the Commission during the investigation).  

Policy  areas  where  relatively  few  decisions  of  maladministration  have  been  taken  are 
agriculture, customs and freedom of goods, energy policies, transport, common foreign and 
security policies, tax and economic policies, fisheries. This pattern can be explained from at 
least three different perspectives: because the EU executive maintains a good administrative 
behaviour  in  the  area,  because  of  the  lack  of  interest  for  complainants  (especially  private 
persons),  or  because  national  administrations  are  more  involved  or  take  decisions  directly 
impacting on others in these areas.  

Figure 6 – Inquiries closed by the EO in 2014-16, by field of law

Source: own elaboration on official data from the EO 

2.3.1.4  Synopsis  

Based  on  the  assessment  of  the  data  about  the  complaints  and  decisions  of  the  EO,  a 
consistent  pattern  can  be  identified  in  the  most  problematic  aspects  of  EU  administrative 
procedure, as follows:  

•  The European Commission is the authority most often involved in cases of (alleged 
or verified) maladministration. This conclusion seems to be due to two major elements: 
the  rather  broad dimension of  the  institution  as  compared  to  the  whole  administrative 
branch of the EU and the scope of its administrative activities, which have normally a more 
direct impact on people’s lives and businesses (especially compared to EU agencies). EU 
agencies  and  EPSO  are  the  other  most-involved  institutions,  the  latter  only  on  cases 

68 Case Infineon, EO Annual report 2014, 15. 

39 

 
 
 
                                                             
regarding the correct application of rules governing the selection procedure of EU staff.  
As highlighted by the EO’s strategic enquiries, however, attention should also be paid to 
the  administrative  activities  of  other  authorities,  such  as  the  Council  of  the  EU,  the 
European  Council,  the  EIB  and  the  ECB.  Despite  their  limited  direct  interaction  with  EU 
citizens, each of these structures has a substantial impact on EU citizens’ lives, as well as 
on  national  administrations  and  companies.  Thus,  their  decision-making  processes 
require adequate guarantees and rules that ensure the quest for more transparency and 
accountability. 

•  Transparency 

issues  are  the  main  case  of  maladministration  by  the  EU 
administration.  This  involves  a  rather  comparable  number  of  complaints  about  the 
refusal of an institution to grant access to documents and to provide information, which 
form  the  most  relevant  cases  of  alleged  maladministration,  together  with  complaints 
about the level and culture of service (such as friendliness, language and timeliness). On 
the  opposite  side,  decisions  about  the  transparency  in  the  reasoning  behind  decision-
making and the right to public consultation are more limited, as well as the issues about 
respect for procedural and fundamental rights. This unexpected result can have perhaps 
different explanations. With respect to violation of rights and legal reasoning, these issues 
of maladministration seem to be mostly dealt with in judicial review rather than through 
the EO’s soft-control powers. Participation in EU decision-making, however, is infrequently 
invoked by citizens. Nevertheless, the concrete contribution given by the EO to the reform 
of the participatory procedure69 shows the key importance of ensuring uniform and broad 
rules on transparency and accountability throughout the EU executive. 

2.3.2  Codes of good administration in EU institutions 

In order to validate our findings related to the fragmentation of rules of good administrative 
conduct  in  EU  agencies,  bodies  and  institutions,  we  sent  a  survey  to  40  EU  institutions, 
agencies,  offices  and  bodies.  Given  the  limited  number  of  replies  received  (10),  we 
complemented our analysis by scrutinising the codes of good administration that are publicly 
available on the websites of EU institutions. Among the 65 bodies identified (see list in Annex 
2),  we  found  23  publicly  available  codes  of  good  administration,  many  of  which  echo  the 
content  of  the  2001  European  Code  of  Good  Administrative  Behaviour,  but  with  some 
important differences. In addition, we found seven bodies that, rather than adopting an ad-
hoc code, decided to adopt the entire 2001 Code of Good Administrative Behaviour prepared 
by the European Ombudsman. Overall, this means that there are 30 EU bodies out of the 65 
identified  that  have  adopted  a  formal  code  of  good  administrative  behaviour  or  good 
administration (see Figure 7 below). The remaining bodies resort on many occasions to ad-
hoc rules for ruling on access to documents and resolving conflicts of interest.  

69 EO Annual report 2017, 18. 

40 

 
                                                             
Figure 7 – EU Institutions and codes of good administration 

Source: own elaboration 

Within  the  population  of  codes  that  we  could  find,  or  that  were  reported  by  the  bodies 
themselves, we found significant variation. Of the 23 bodies for which we could analyse the 
full  coverage  of  their  codes  of  good  administration,  we  found  a  wide  divergence  in  the 
coverage  of  administrative  rules,  between  themselves,  with  the  2001  Code  and  with  the 
European Parliament’s proposed rules. This might also be due to the fact that existing codes 
have been enacted at different moments in time, as shown in Figure 8. Our sample covers 16 
years of codes of good administration, during which the CJEU has had the opportunity to rule 
in  order  to  clarify  certain  rights,  in  particular  the  right  to  be  heard,  the  duty  for  the 
administration to give reasons and to adopt decisions within a reasonable time, as well as the 
privilege against self-incrimination.  

41 

 
 
 
Figure 8 – Year of adoption of the codes in our sample 

5

4

3

2

1

0

Source: Own elaboration. 

There are numerous important differences in the coverage of codes of good administrations 
adopted by the EU institutions. In this section, we compare the coverage of these codes to the 
scope  of  the  European  Parliament’s  proposed  regulatory  framework  as  described  in  Box  1 
above.  As  explained  in  more  detail  in  Section  1  of  this  report,  we  adopted  the  European 
Parliament’s  framework  as  a  benchmark  in  order  to  enable  an  assessment  of  the  relative 
impact that the adoption of that framework (which constitutes a policy option in this impact 
assessment study) would have on the EU administration. Our intention is thus to assess the 
distance between the status quo (option zero in our impact assessment) and the European 
Parliament’s framework (Option 2 in our impact assessment, see Section 5 and 6 below), in a 
way that leads to an assessment of the impact of moving from the former to the latter option.  

2.3.2.1  Methodological clarifications  

A  caveat  to  keep  in  mind  when  reading  through  our  findings  is  that  our  analysis  is  largely 
based on desk research, which means that we capture what is written in the existing codes, 
rather than what happens in practice. A higher response rate would have better represented 
the current practice in EU institutions, agencies, offices and bodies, since our survey was aimed 
at capturing also, beyond the rules explicitly adopted in the form of codes, existing practice 
(see  Annex  1).  The  prevalence  of  desk  research  in  our  findings  has  both  advantages  and 
disadvantages in terms of accuracy: it is more accurate since it is more objective, and not based 

42 

 
 
 
on  the  self-reporting  of  institutions  as  regards  compliance  with  specific  standards  of  good 
administration (as would have occurred if we had based our results only on the survey). It may, 
however, be less accurate since the real impact of the adoption of a new regulatory framework 
should in principle be measured on the actual status quo, not on what is written in the codes, 
regardless  of  current  practice.  Furthermore,  we  have  included  in  our  sample  only  codes  of 
good  administrative  practice,  and  not  other  rules  followed  by  individual  administrations, 
which may address specific types of administrative conduct (e.g. inspections). This decision 
may lead to an incomplete account of the full set of rules governing administrative conduct in 
specific  institutions,  agencies,  offices  or  bodies.  That  said,  we  assume  that  for  the  30 
administrations that have given themselves a code of good administrative behaviour or good 
administration, that code represents the most important set of rules that the administration is 
expected to follow in its daily activities. For this reason, we prefer to show our findings mostly 
with reference to the 30 institutions, agencies, bodies and offices that have a code in place, 
rather  than  for  the  full  65  regardless  of  whether  they  have  adopted  an  ad  hoc  code,  or 
endorsed the 2001 one.  

2.3.2.2  Distance  between  the  status  quo  and  the  European  Parliament’s 

proposal 

As a result, Figure 9 below shows the distance between current coverage and the content of 
the European Parliament’s proposed regulatory framework for the 23 institutions, agencies, 
offices  and  bodies  that  have  explicitly  adopted  a  code  (dark  blue  area);  and  the  coverage 
obtained by adding the 7 institutions that explicitly adopted the 2001 Code (light blue area). 
As shown in the picture, the least-covered items in existing codes are the right for the parties 
to be represented by a lawyer, the right to pay reasonable charges where appropriate and the 
right to receive a notification of the initiation of a proceeding. And while these areas may be 
less  covered for understandable  reasons  (i.e.  many bodies  do  not initiate  proceedings,  and 
many  do  not  charge  for  any  relationship  or  transaction  with  members  of  the  public),  our 
analysis  also  reveals  limited  coverage  of  key  issues  such  as  the  provisions  related  to  the 
rectification  and  correction  of  mistakes;  the  duty of  careful  and impartial  investigation,  the 
duty to specify remedies, the right to be heard and the clarity and form of administrative acts. 
Relatively  more  widespread  (over  75%  of  the  sample)  are  provisions  on  the  requirements 
related  to  the  acknowledgment  of  receipt,  provisions  on  the  right  to  use  any  EU  official 
language and receive a reply in the same language; provisions on the right to access one’s file 
(but not to be given a summary of the content in cases in which access is not possible); rules 
on conflicts of interest; the duty to keep records (but not to make an index); and the existence 
of time limits. The latter tend to be set in particular for the acknowledgment of receipt (often 
to be given within 15 days, but sometimes less, and already automatic/instantaneous in a few 
bodies); and for the communication of the decision on a request to access the file (typically 
within two months). 

Figure 10 shows the same analysis, but with respect to all 65 institutions, agencies, offices and 
bodies we have analysed, 35 of which do not have a code in place. As explained, this may be 
taken as a high-end, less conservative estimate of the distance between the rules in place and 
the European Parliament’s proposed regulatory framework, which would apply to the whole 
EU administration, leaving the possibility for ad hoc sectoral rules where needed. In order to 

43 

 
 
account for the existence of some form of rules of administrative conduct in those institutions, 
agencies and bodies that do not have an explicit code, we have formulated two assumptions: 
i) that no administrative rule exists (and total coverage coincides with the dark green area); 
and ii) that a 25% BAU (business as usual) factor applies (light green area). Regardless of the 
total  number  of  institutions,  agencies,  offices  and  bodies  referenced,  the  picture  shows  a 
remarkable distance between the situation as it now stands and the aims that the European 
Parliament proposed to achieve. 

Figure 9 – Coverage of existing codes of good administrative conduct (n. 30) 

Source: Own elaboration. 

44 

 
 
 
 
Figure 10 – Coverage of existing codes of good administrative conduct (n. 23 out of 65) 

Source: Own elaboration. 

Figure 11 below provides a more in-depth description of the specific provisions that can most 
often  be  found  in  the  available  codes  of  good  administration.  As  shown,  all  institutions, 
agencies,  offices  and  bodies  are  explicitly  subject  to  an  obligation  to  keep  records  in 
compliance with data protection rules, as well as an obligation to avoid conflicts of interest. 
On  the  latter  issue,  however,  provisions  differ  in  terms  of  the  type  of  conflict  in  question 
(financial,  personal,  or  other),  as  well  as  on  the  depth  of  the  provisions,  with  some  of  the 
institutions, agencies, offices and bodies being very detailed on issues such as the behaviour 
to adopt in case of invitations, gifts and attendance at conferences or other events, whereas 
others limit themselves to a short declaration of principle. Moreover, only 36% of the sample 
offer the possibility for individuals involved to request the exclusion of a member of the staff 
on grounds related to the conflict of interest. Similarly, most institutions, agencies, offices and 
bodies specify the time limits that are to be considered reasonable, but such limits vary: while 
many consider two weeks as a reasonable time for sending an acknowledgment of receipt, 
one agency (EMA) does not have this problem as it uses the EudraLink system, which produces 
instantaneous acknowledgments of receipts upon the filing of a request by a member of the 
public. While time limits are often referred to, less than half of our sample provide the public 
with a reasonable time limit to reply to requests. Relatively less common are provisions on the 
obligation to provide a motivation in case a notification is omitted or delayed (23.53%) and 
the obligation to remind the parties of the right against self-incrimination. 

45 

 
 
 
 
Figure 11 – Specific provisions in the existing codes (n = 30) 

Obligation to keep records in compliance with Data
Protection

Rules on conflict of interest

Obligation to respect time limits and avoid delay

Indication of which time limit is reasonable

Specific requirements for administrative procedures
initiated by a party

100%

100%

86,36%

81,82%

13,64%

18,18%

68,18%

31,82%

Obligation to initiate procedure within reasonable time

54,55%

Parties must be given a reasonable time-limit to reply

45,45%

Obligation not to make decisions public before notification

Obligation to notify decision to initiate procedure to the
parties

Parties can request that staff be excluded in case of conflict
of interests

40,00%

38,89%

36,36%

In case of no access to the file parties must receive a
summary of the content

Obligation of motivation in case a notification is
omitted/delayed

27,27%

23,53%

Obligation to remind the parties of the right against self-
incrimination

4,55%

45,45%

54,55%

60,00%

61,11%

63,64%

72,73%

76,47%

95,45%

Source: Own elaboration.  

Yes

No

2.3.2.3  Requirements in place for administrative acts 

Figure 12 focuses in particular on the requirements in place for administrative acts. The figure 
shows that most of the 30 institutions, agencies, offices and bodies that have a code (90%) 
have rules that explicitly mandate the specification of the reasons behind the adoption of the 
act;  and  more  than  half  of  them  are  explicitly  obliged  to  adopt  acts  that  are  clear, 
understandable, simple, in writing and contain an indication of the legal basis and the relevant 
facts. Such acts, however, do not necessarily indicate how interests were taken into account, 
and often do not mandatorily have to be signed by the competent authority (only 23.81% of 
the 30 EU institutions, agencies, offices and bodies in our sample).  

46 

 
 
 
Figure 12 – Requirement in place for administrative acts (n = 30) 

Acts clearly state the reasons on which they are based

90,00%

10,00%

Acts must be drafted in a clear, simple and understandable
manner

77,27%

22,73%

Acts must clearly indicate the relevant facts

76,19%

23,81%

Acts must clearly indicate their legal basis

71,43%

28,57%

Requirement that administrative acts be in writing

68,18%

31,82%

Acts must contain an individual statement of reasons

59,09%

40,91%

Acts must  indicate how interests involved were taken into
account

42,86%

57,14%

Acts must be signed by the competent authority

23,81%

76,19%

Source: Own elaboration.  

Yes

No

2.3.2.4  Provisions on the content of notifications  

Figure 13 focuses on the content of the notifications sent by EU institutions, agencies, offices 
and bodies to members of the public when initiating a proceeding. As shown in the figure, 
while  most  notifications  (90%)  must  explicitly  contain  the  name  and  contact  detail  of  the 
responsible member of staff, there is seldom a requirement to include an explanation of the 
main  procedural  steps  that  affect  the  interests  of  the  notified  individual  or  the  remedies 
available  to  the  individual.  This  percentage  goes  down  14.29%  in  the  specific  case  of 
acknowledgments  of  receipt.  Some  bodies  also  do  not  explicitly  have  to  mention  the 
competent authority for the procedure or for remedies, and even less (40%) have to mention 
time limits for the adoption of the act or consequences for failure to adopt the act within the 
time limit; and the address and website where the code or other relevant public information 
is available.  

47 

 
 
 
 
 
Figure 13 – Content of the notifications when initiating a proceeding 

80%

70%

60%

50%

40%

40%

30%

30%

Main
procedural
steps

Remedies
available

Time-limit for
adoption and
consequences
of missing the
time-limit

Address of
website where
info is publicly
available

Subject matter
and purpose of
the procedure

Competent
authority

Reference
number and
date

Name and
contact details
of responsible
member of
staff

Source: Own elaboration.  

2.3.2.5  Provisions on the indication of remedies 

A  further  set  of  information  was  collected  with  regard  to  the  codes’  provisions  on  the 
treatment of remedies in administrative acts. There, understandably, all institutions, agencies, 
offices  and  bodies  that  are  obliged  to  clearly  state  that  remedies  (such  as  administrative 
review) are available must also describe the related procedure to access these remedies. Many 
of  them  (82.35%)  must  also  mention  the  existence  and  availability  of  judicial  proceedings 
and/or the European Ombudsman and identify which remedies are available and the staff that 
will handle the related procedure (77% and 76%, respectively). The codes of a much smaller 
share, however, include an obligation to rectify or correct mistakes or spell out the conditions 
under which the obligation to correct/rectify arises.  

48 

 
 
 
Figure 14 – Treatment of remedies in administrative acts 

Acts must describe the procedure to access remedies

100,00%

Acts mention judicial proceedings or the European
Ombudsman

82,35%

17,65%

Acts indicate a time limit to submit review requests

82,35%

17,65%

Acts must state remedies available

77,27%

22,73%

Acts indicate the staff that will handle remedies

76,47%

23,53%

Clerical, arithmetic or similar errors must be
corrected

40,91%

59,09%

Rules specify when acts shall be rectified/withdrawn

18,18%

81,82%

Source: Own elaboration.  

Yes

No

2.3.2.6  Provisions on inspections 

Another specific issue that emerged during our empirical analysis is that of inspections. Not 
all  surveyed  institutions,  agencies,  offices  and  bodies  carry  out  inspections,  as  was  to  be 
expected  (only  41%  do).  Among  them,  as  shown  in  Figure  15  below,  89%  have  specific 
procedures in place for inspections, but only 62.5% require inspectors to draft a report and 
send a copy to the parties. Only half of the surveyed entities, however, reported having an 
obligation to inform the parties about the purpose and subject matter of the inspection. Less 
than half are obliged to give notice to the parties and inform them of the expected starting 
date. And only one of them has an obligation to respect national rules for inspections.  

49 

 
 
 
 
 
Figure 15 – Provisions on inspections 

Inspections must follow explicit specifications

88,89%

11,11%

Inspectors must draft a report and send a copy to
parties

62,50%

37,50%

Parties must be informed of subject matter and
purpose

50,00%

50,00%

Parties involved must be given notice and starting
date

44,44%

55,56%

Inspectors must cooperate with national authorities

37,50%

62,50%

Inspectors must respect national procedural rules

12,50%

87,50%

Source: Own elaboration.  

Yes

No

2.3.3  The results of the public consultation of the JURI Committee of the 

European Parliament 

As a follow-up to the European Parliament Resolution of 9 June 2016 for an open, efficient and 
independent European Union administration, the Committee on Legal Affairs requested the 
European Parliamentary Research Service, European Added Value Unit, to carry out a public 
consultation. The aim of the consultation was to receive views from the public, first, on general 
perceptions  and  attitudes  towards  EU  administration;  second,  on  personal  experiences  in 
dealing  with  EU  bodies  and  third,  on  further  actions  that  EU  should  take  in  the  area  of  EU 
administrative law. The findings of the consultation can also be used to supplement the lack 
of data on the number and the type of administrative procedures in the EU institutions and 
the  scope of  administrative  activity. The  Summary  Report on  the  public  consultation  (EPRS 
2018)  points  out  that  the  lack  of  such  data  “could  be  in  itself  an  indication  of  the  high 
complexity  of  the  current  systems  characterised  not  only  by  a  growing  number  of  EU 
institutions,  bodies  and  agencies  but  also  by  a  growing  number  of  interactions  between 
citizens  and  the  EU  administration”  (p.  11).  We  report  the  main  results  below  and  analyse 
specific answers given by private individuals and by corporations. A more extensive analysis 

50 

 
 
may  be  found  in  the  Summary  Report  on  Public  consultation  on  an  EU  law  for  an  open, 
independent and efficient European administration (EPRS 2018).70  

2.3.3.1  Main results 

In  response  to  the  consultation,  the  European  Parliament  received  166  fully  completed 
responses from 20 EU Member States. The general perception of the EU administration was 
mixed: 52% had a positive perception, while 36% had a negative perception of the functioning 
of the EU administration. Professional interests, direct experiences and media are three main 
sources  of  information  based  on  which  respondents  formed  their  opinion  regarding  EU 
administration. The perceived general awareness on what services EU bodies provide for the 
public and companies is high: 73.5% of respondents indicated that they know what services 
are provided by the EU bodies to the public and companies. At the same time, only 45.8% of 
all  respondents  indicated  that  they  are  familiar  with  their  right  to  submit  a  petition  to  the 
European Parliament.  

2.3.3.2  The experience with EU bodies 

The experience of the respondents with the EU bodies is mixed: 54% of respondents reported 
either a negative or mixed experience, and only 46% had a positive experience. The European 
Commission, European Parliament and EU agencies are the bodies with which respondents 
had  the  most  direct  contact.  Access  to  documents  (46%),  requests  for  general  information 
(44%) and EPSO competitions (31%) are the three top reasons why respondents contacted the 
EU administration. The three main problems contributing to the negative experiences include 
length of procedure (42%), difficulty to find information (37%) the quality of the reply received 
(30%).  

Interesting insights were provided by private individuals and corporations when responding 
to  the  survey.  First,  the  respondents  showed  relatively  high  awareness  of  the  Regulation 
49/2001  on  the  right  to  access  documents  (56%  of  respondents)  and  the  right  to  lodge  a 
complaint with the European Ombudsman (55%). The familiarity with the European Code of 
Good Administrative Behaviour is however lower: only 37% of the respondents indicated that 
they are familiar or very familiar with this instrument, whereas 27% of respondents replied that 
they are not at all familiar with the Code. 28% of respondents don’t know whether there is a 
legally  binding  code  of  administrative  procedure  applicable  to  all  EU  institutions,  and  24% 
incorrectly  think  that  there  is  one.  23%  of  respondents  do  not  know  that  the  Charter  of 
Fundamental  Rights  of  the  European  Union  provides  a  fundamental  right  to  good 
administration and 18% (wrongly) think that this is not the case. One third of the respondents 
incorrectly replied that European Code of Good Administrative Behaviour is binding on all EU 
institutions. 

The main problems encountered by individuals in dealing with EU bodies were the difficulty 
in finding information (45% of those respondents who had negative or mixed experience); the 

70 Tatjana Evas, EU law for an open, independent and efficient European administration: Summary report of the 
public consultation, EPRS, July 2018. 

51 

 
 
                                                             
length of the procedure (41%); the lack of reply and the complexity of the procedure (28%); 
followed by the fact that only a vague and generic answer was given, the difficulty in finding 
the competent person and the perception of lack of impartiality of the person handling the 
request (each of these answers was mentioned by 24% of the same sample).  

Among  the  more  problematic  issues,  respondents  mentioned  the  cost  of  both  delays  and 
operational incoherence.71 Individuals seem to have more problems in dealing with the final 
stages of the administrative procedure than with the initiation of proceedings. As a matter of 
fact,  when  asked  which  stage  of  the  administrative  procedure  seemed  more  difficult  to 
manage,  individuals  pointed  more  at  the  conclusion  of  the  administrative  procedure 
(including  remedies)  and  at  the  management  and  correction  of  errors,  withdrawal  and 
rectification of administrative acts.72 Relatively negative comments were also received such as 
‘I  have  made  requests  to  which  I  never  received  any  reply’;  ’Lack  of  comprehensive  public 
registers causes unnecessary or unnecessarily broad requests’; and ’a particular problem are 
procedures  that  are  initiated  through  a  web-based  form  and  that  do  not  give  you  a 
confirmation of  submission’  (#306);  ’EPSO  makes  pre-selection  tests  which  include  wrongly 
formulated submissions. But citizens cannot see these after tests’; ’OLAF is slow, needs more 
staff and rules which makes it easier for them to penalise corrupt practices’ (#310); ’the first 
and  foremost  issues  is  that  of  languages,  as  too  often  only  limited  language  versions  are 
available’(#165). Overall, in order of the importance they attached to the issues, respondents 
ranked  highest  respect  for  fundamental  rights,  followed  by  transparency  and  respect  for 
procedural rights such as the right to motivate decisions, accountability and ethics.  

Among  corporations  and  organisations,  the  length  of  the  procedure  was  reported  as 
problematic by two out of every three respondents. And one respondent noted the difficulty 
to find information, the lack of respect for the right to be heard, lack of an acknowledgment 
of receipt and lack of impartiality or fairness in the procedure or the competent official. Among 
the very few corporations/organisations that responded, interesting comments were made on 
the  lack  of  access  to  Council  documents  (#105),  the  need  to  apply  ILO  Convention  98  as  a 
means for the Commission to get rid of conflicts of interest (#302); and the need to provide 
access to information in all official languages (#437).  

When  asked  to  evaluate  their  experiences with  specific  EU institutions,  bodies  or  agencies, 
survey respondents indicated substantial differences in their evaluation of experiences across 
different EU bodies. The European Personnel Selection Office (EPSO) received the most critical 
evaluations, with 46% of respondents reporting a negative or very negative experience (well 
above the average of 24% who report a negative experience with the EU administration in 
general).  As  the  study  reports,  ‘[t]he  External  Action  Service  (38%),  European  Commission 
(32%), Anti-Fraud Office (31%) and European Ombudsman (28%) rank above the general level 
of negative experience too’ (p. 26), whilst the European Parliament (19%) and the EU agencies 
(16%)  scored  better.  The  explanation  the  study  offers  for  the  substantial  differences  in 
evaluation  is  that  these  indirectly  suggest  a  ‘great  variation  in  the  quality  of  institutional 
practices, at least if measured by the overall level of satisfaction with the EU administration’. 
(p. 26) 

71 These are defined as costs for citizens or companies related to the operational or regulatory inefficiencies of the 
EU administration in providing a service. 
72 http://www.europarl.europa.eu/cmsdata/142802/eu-administrative-law-private-individual.pdf 

52 

 
                                                             
2.3.3.3  The public’s view on policy measures 

There is a high support from the respondents (76%) for additional measures on the EU level to 
reinforce EU administrative procedures. The two main reasons why respondents would like 
the EU to take action are: to improve efficiency (57%) and to improve transparency (50%) of 
the EU administration. In response to the question on how the EU should best reinforce the 
functioning of the EU administration, 82% of the respondents support the adoption of a new 
law  (52%  support  a  new  law  with  minimum  standards,  while  30%  new  law  with  full 
harmonisation).  The  proportion  of  respondents  who  support  an  adoption  of  non-binding 
code of  conduct  is  low  (7%).  Some  23% of  the  respondents  do  not  support  a  new  law  but 
would  rather  like  the  EU  to  focus  on  the  improving  existing  legislation;  23%  also  do  not 
support a new law but would rather see measures focusing on technical solutions to simplify 
access of the public to the EU administration.  

Overall, 75.42% of private individuals replied that the EU should take additional measures to 
reinforce  EU  administrative  procedure.  And  out  of  a  total  of  eight  respondents  among 
corporations and organisations, 100% agreed that the EU should take additional measures to 
reinforce EU administrative procedure. All of these eight respondents advocated measures to 
enforce  citizens’  right  to  good  administration,  to  simplify  procedures  and  to  guarantee 
minimum standards applicable across all EU institutions.  

2.3.4  The Workshop on Possible Options for a more Open, Efficient and 

Independent EU Administration 

On 7 May 2018, we convened a workshop on the subject of this impact assessment, attended 
by  28  participants  (see  a  detailed  report  on  the  workshop  in  Annex  4  below).  During  the 
workshop,  after  an  introduction  by  the  JURI  Committee  of  the  European  Parliament  and  a 
presentation of the findings of an earlier draft of this report, presentations were given by three 
academics (Prof. Dr  Herwig Hoffman, Prof. Dr  Alberto Alemanno and Prof. Dr Henk Addink) 
and by a representative of DG DIGIT. These presentations were followed by a lively discussion: 
participants were asked to address a number of questions (reported in Annex 3 to this report) 
on their experience with EU administration. Overall, there was overwhelming support for the 
introduction  of  new  measures  such  as  the  European  Parliament’s  proposed  regulatory 
framework. Such support came from both academics, representatives of the private sector and 
Member States. 

Importantly,  the  presentation  by  DG  DIGIT  helped  us  to  clarify  one  specific  aspect  of  our 
impact  assessment:  as  the  European  Commission  is  developing  a  roadmap  for  the 
implementation  of  e-government  and  e-administration  procedures  both  at  the  EU  and  at 
Member  State  level,  the  existing  fragmentation  of  administrative  procedure  across  EU 
institutions, agencies, offices and bodies may constitute an obstacle to reaping the benefits of 
digitalisation.  This  is  due  to  the  fact  that  the  Commission  is  working  towards  the 
standardisation  of  specific  modules  (‘building  blocks’)  that  individual  administrations  may 
adopt and re-use in order to deliver specific services in a standardised and streamlined way, 
thus  enabling  seamless  interoperability  across  EU  institutions.  This  also  avoids  inefficient 
centralisation  of  specific  functions,  as  it  allows  institutions  to  use  similar  modules  in  a 
distributed,  decentralised  way.  This  transition,  which  promises  enormous  savings  and 

53 

 
 
improvements in terms of transparency and openness, is only possible if minimum standards 
are complied with by all EU bodies. We have reported this finding in our impact assessment 
analysis below (Section 6), as an indirect benefit of Option 2. 

  Codifying  good  administration:  academic  perspectives 
and selected experience in EU Member States 

Member States display different approaches to administrative law, partly due to their different 
legal traditions. Hofmann et al. distinguish three systems: i) countries in which the general act 
and  acts  containing  procedures  for  specific  sectors  have  their  own  scopes  of  application, 
which exist completely in parallel; ii) countries in which the specific legislation prevails in case 
of a conflict with the general administrative procedure act and iii) countries in which the Law 
of Administrative Procedure is the default standard (Hofmann et al. 2017).  

Academic  literature  generally  favours  more  detailed  and  prescriptive  administrative  law  as 
opposed to purely principles-based legislation (cf. Option 1, see Section 5 and 6 below). Ziller 
(2011b) argues that ‘[i]f the general Administrative Procedure Law remains too much at the 
level  of  general  principles,  there  are  two  risks:  First,  the  margin  left  for  complementary 
regulation  of  administrative  procedure  might  be  such  that  the  purpose  of  ensuring 
homogeneity and clarification will be in the end defeated. Second, the officials in institutions, 
bodies, offices  and  agencies  will  probably  simply  ignore  the  Administrative  Procedure  Law 
and rather use the internal regulation or the guidelines for their application that are issued by 
their administration; if no such guidelines are issued by the institutions, bodies, offices and 
agencies, the officials will not find the necessary remedies in the default rules and principles 
that are formulated in the Administrative Procedure Law.’ In this respect, academic literature 
seems to support the approach developed further on in this report as Option 2.73  

Several  authors  have  listed  possible  approaches  for  codifying  good  administrative  conduct 
and principles. According to Ladenburger (2008), these include: sectoral codification, partial 
codification (codification of a specific aspect of general Union administrative law), horizontal 
codification (aimed at providing a framework for the administration).74 Ziller (2011a) refers to 
pure codification (‘establishing a legally binding consolidated version of existing legislation’) 
or innovative codification (‘i.e. taking over principles and rules from existing legislation and 
case law, making choices in cases of conflict and adopting new principles and rules in order to 
substitute inappropriate ones or to complement existing ones’ Ziller 2011a also speaks about 
more  general  (‘Principle-based’,  e.g.  legal  certainty,  equality,  transparency)  as  opposed  to 
more detailed (‘Rule-based’) codification. Incremental codification, such as in the case of the 

be 

73 The introduction by Hofmann et al. mentions the Swedish Law of Administrative Procedure as an example of a 
brief one, and the Croatian act as an example of an extensive one. A comparative study has concluded that the 
content of administrative procedure acts around the world varies, but that there are patterns across countries, 
the most important of which indicates that acts dealing with rulemaking next to individual decision-making tend 
to 
2011) 
http://doi.org/10.1177/1065912910364218. 
74  Working  Group  on  EU  Administrative  Law,  “State  of  Play  and  Future  Prospects  for  EU  Administrative  Law”, 
Working  Document  (WD-State  of  Play),  Working  Document  submitted  to  the  Committee  on  Legal  Affairs,  19 
October 
(http://www.europarl.europa.eu/meetdocs/2009_2014/documents/juri/dv/ 
27-28. 
juri_wdadministrativelaw_/juri_wdadministrativelaw_en.pdf). 

(Jensen  &  McGrath 

countries  with 

presidential 

adopted 

system 

2011, 

  p. 

in 

a 

54 

 
                                                             
Dutch Algemene Wet Bestuursrecht (Awb), which has been codified but also evaluated ex post 
in three rounds,75 is rather common for general acts of administrative procedure.  

In fact, as also observed by the ReNEUAL network (Craig et al. 2017, 35), many Member States 
currently have laws on general administrative procedure in place. After Spain was the first to 
adopt such a law in 1889, many followed over the course of the 20th century, often through 
lengthy codification exercises. The codification trend really gained momentum in the second 
half of the century. Galetta et al. (2015b, 8) report that ‘more than two thirds of the EU Member 
States have adopted a general law on administrative procedure, some already before World 
War II, most of them since the middle of the nineteen-seventies, with a significant increase in 
speed  and  depth  since  the  nineteen-nineties.’  .  The  resulting  laws  do  differ  significantly  in 
terms  of  scope  and  purpose,  but  none  of  the  Member  States  with  general  administrative 
procedure acts has changed its mind about having such an act after adopting it. Galetta et al. 
(2015b,  8)  conclude  that  ‘[t]he  experience  in  many  Member  States  over  the  last  century 
confirm that an administrative procedure act can contribute to balancing the need for sector-
specific rules with clear generally applicable procedures as well as clearly defining individual 
rights whilst ensuring effective and efficient administrative decision-making.’ . They go on to 
state:  ‘[o]n  the  whole,  the  experience  of  Member  States  with  codification  shows  that  the 
benefits of being able to refer to a single text – which does not impede additions in sector 
specific regulation where needed – clearly outweigh the problems raised by the necessity for 
courts to sometimes further define the consequences of the rules which are laid down in a 
general way. Setting general rules on administrative procedure means being able to define a 
minimum  common  denominator  for  the  regulation  of  the  relations  between  citizens  and 
Public Administration. This will balance the need for generally applicable rules, on one hand, 
with the need for special regulation of specific procedures, on the other. It will also help courts 
in  the  difficult  task  of  applying  procedural  rules  in  relation  to  changing  tasks  of  the 
administration. For all these reasons, in the past quarter century a venerable list of authors 
from around Europe have supported or called for a Union code of administrative procedure.’ 
(Galetta et al. 2015b, 10).  

Building  up  his  argument  in  favour  of  a  European  Agencies  Procedural  Regulation  (EAPR), 
(Geradin 2005, 229) points to a ’major difference between the EU and the US [namely] that the 
US Congress has established common procedural rules through the Administrative Procedure 
Act  […],  as  well  as  additional  statutes  discussed  below.  For  a  regulated  industry  or  even  a 
simple  citizen,  it  makes  a  huge  difference  to  be  able  to  identify  fairly  easily  the  type  of 
procedural obligations (in terms of transparency, participation etc.) that apply to regulatory 
agencies. Of course, these obligations will vary from one agency to the other, as Congress can 
add or subtract procedural requirements depending on the circumstances and, in some cases, 
the courts have added additional procedural obligations, but the APA represents a set of core 
requirements, which discipline regulatory processes” (Geradin 2005, 227).  

On  1  January  2016,  the  long-awaited  French  code  of  administrative  procedure  came  into 
effect as ‘the code of the relationships between the public and the administration’ (Code des 

75  The  obligation  to  evaluate,  which  was  included  until  1  January  2013  in  Section  11(1)  of  the  LAW  OF 
ADMINISTRATIVE PROCEDURE, resulted in three official evaluations of the LAW OF ADMINISTRATIVE PROCEDURE 
since it came into force: application and effects of the General Administrative Law Act 1994-1996; application and 
effects of the General Administrative Law Act 1997-2001; application and effects of the General Administrative 
Law Act 2002-2006. 

55 

 
 
                                                             
relations entre le public et l’administration - CRPA).76 Compared to the codes adopted in other 
European countries, the French code has a rather circumscribed scope and ambition, as it only 
defines the rules for the adoption of administrative acts, while other aspects (legal regimes for 
public contracts or for administrative remedies) are left to sectoral provisions.77 The process 
that led to this code and its content, however, sheds some lights on the reasons why a country 
could  decide  to  codify  its  rules  on  administrative  procedures.  Two  explanations  are  put 
forward  to  adopt  this  uniform  corpus  of  rules.  The  government  wanted  to  ensure  legal 
certainty and especially foster the citizens’ access to justice, as well as to modernise the state 
by reforming the relationship between the public sphere and its final users.78 As such, it may 
be  said  that  the  codification  of  administrative  procedure  in  France  encapsulates  two 
prominent  trends  of  the  transformation  of  administrative  law  over  the  past  few  decades 
towards  the  promotion  of  standards  of  good  administration:  proceduralisation  and 
subjectivisation (Custos 2015). 

  Conclusion 

This section has analysed the policy problem from different angles: the academic literature 
(Section  2.1),  the legal  reality, in  particular on  selected  aspects of  administrative  procedure 
(Section 2.2), the Ombudsman’s findings (Section 2.3.1); the current practice in ten EU bodies; 
our  desk  research  on  the  EU  bodies’  websites  (Section  2.3.2);  the  results  of  EP  public 
consultation  run  by  the  JURI  Committee  of  the  European  Parliament  (Section  2.3.3);  and 
summarised insights into the activity of codifying good administration (Section 2.4). 

The overall results are clear, and can be expressed through the following summarised findings:  

•  There  is  a  high  level  of  fragmentation  in  administrative  procedure  across  EU  institutions, 
agencies,  offices  and  bodies.  Fragmentation  appears  evident  across  codes  adopted  by 
different EU bodies, and also between bodies that have adopted a code (30) and bodies 
that have not (35).  

•  Fragmentation  goes  beyond  the  level  of  flexibility  that  one  could  expect  given  the 
heterogeneity  of  EU  bodies  and  their  related  powers  and  mission.  More  explicitly, 
fragmentation also affects the implementation of basic principles of good administration, 
such  as  the  respect  of  the  right  to  be  heard,  the  administration’s  duty  to  motivate 
decisions, the duty to operate and interact in all official languages of the European Union, 
the adoption and respect of time limits, the use of online procedures and the duty to grant 
access to one’s file. 

•  Based on our analysis of existing codes, fragmentation appears evident in all phases of the 
administrative procedure, and notably in the initiation of proceedings; in the handling of 
requests  from  members  of  the  public;  in  the  formal  and  procedural  requirements  of 
inspections;  in  the  recognition  of  user’s  rights  to  communicate  online,  be  heard  and 
represented by a lawyer, and be given clear, timely and understandable information on 

76 Adopted with Ordonnance no 2015-1341 du 23 octobre 2015 et du décret no 2015-1342 du même jour. 
77 P. Gonod, Codification de la procédure administrative, La fin de « l'exception française » ?, AJDA 2014 p.395. 
78 Loi d’habilitation n° 2013-1005 du 12 novembre 2013. 

56 

 
                                                             
the  content  and  scope  of  administrative  acts,  as  well  as  ongoing  proceedings  and 
applicable remedies thereof.  

•  Our empirical analysis and the results of the public consultation and the workshop show 
that problems related to fragmentation are not only theoretical but are also experienced 
in practice by citizens and other stakeholders. Our analysis also shows that introducing 
general default rules, whilst allowing for tailored requirements in certain sectors, is indeed 
feasible without impinging on the degree of flexibility needed in specific policy areas.  

•  The existing fragmentation is coupled with insufficient compliance with principles of good 
administration, leading to negative impacts on the public. These, based on the results of 
the  public  consultation,  take  the  form  of  uncertainty  and  difficulty  to  find  basic 
information or the contact of competent officials; delays in the administrative procedure; 
lack of predictability of the outcome of administrative procedures; opportunity costs due 
to the lack of information on possible remedies and complaints procedures; and, last but 
not least, a general loss of legitimacy of EU institutions in the eyes of the public.   

These conditions determine the existence and relevance of a policy problem for the purposes 
of our impact assessment. This problem is unlikely to be solved in the absence of a regulatory 
intervention involving  some  degree of  general  codification.  In  fact,  the  problem is  likely  to 
worsen over time for two main reasons: i) the ongoing ’agencification’ of the European Union, 
with  increased  regulatory  powers  being  attributed  to  bodies  other  than  the  European 
Commission  (e.g. in  the  financial  sector, in  medicines  and  chemicals, in  network industries, 
and  also  for  research,  innovation  and  SME  policy);  as  well  as  ii)  the  forthcoming  transition 
towards a more digitised administration, which would require a massive upgrade of processes, 
communication  patterns  and  procedures  across  the  EU  administration,  which  can  only  be 
justified by at least a partial harmonisation of the way in which EU institutions, agencies and 
bodies deal with the public.  

57 

 
 
3  Objectives of the proposed intervention 
Article 298 TFEU states that ‘[i]n carrying out their missions, the institutions, bodies, offices and 
agencies of the Union shall have the support of an open, efficient and independent European 
administration’.  Paragraph  2  goes  on  by  mandating  that  ‘[i]n  compliance  with  the  Staff 
Regulations and Conditions of Employment adopted on the basis of Article 336, the European 
Parliament and the Council, acting by means of regulations in accordance with the ordinary 
legislative  procedure,  shall  establish  provisions  to  that  end’.  Against  this  background,  the 
objectives  of  a  possible  EU  regulation  on  administrative  procedure  include  (increased) 
openness, efficiency and independence. Other objectives often encountered in the literature 
are transparency, uniformity and consistency in decision-making. 

More specifically, the following taxonomy of objectives can be identified: 

•  The  general  objective  of  the  proposed  intervention  is  to  promote  the  quality  of  EU 
governance  and  government  by ensuring  the  most efficient  and  effective  functioning  of  EU 
institutions, bodies, offices and agencies. This general objective is rooted in the provisions 
of the Treaty on the Functioning of the European Union. For many EU legislative proposals, 
the objectives are already specified in the Treaty basis. This can only partially be said to be 
the case for a possible EU regulation on administrative procedure.  

•  The  specific  objective  of  the  intervention  is  to  guarantee,  in  the  most  cost-effective  way 
possible, the respect for the right to a good administration enshrined in the TFEU and in Article 
41 Charter of Fundamental Rights of the European Union. This right to good administration, 
as  explained  above,  can  be  further  broken  down  into  a  number  of  key  principles 
recognized in  the  case  law of  the  Court  of  Justice, some of  which  are  derived  from  the 
provision without having been explicitly mentioned therein,79 as well as in international 
literature  and  practice  on  good  governance  and  administration,  and  include  (at  a 
minimum)  openness,  efficiency  and  independence,  and  possibly  also  transparency, 
uniformity and consistency in decision-making.  

Figure 16 below summarises the intervention logic for possible measures in support of a more 
open, efficient and independent EU administration. The top of the graph shows the drivers of 
the problem, which revolve around the compelling evidence we gathered, which points at the 
significant  fragmentation  and  lack  of  compliance  with  basic  principles  of  administrative 
procedure at the EU level. Such evidence, coupled with our finding that the situation is not 
likely to change significantly absent a policy intervention, determines the need to intervene. 
Such need to intervene is then coupled with general and specific objectives, along the lines 
outlined in this section.  

79 E.g. Case T-54/99, max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313 in which the 
principle of diligent and impartial treatment, or, the principle of care was confirmed. See also Craig 2012, p. 
338 and p. 344. 

58 

 
                                                             
Figure 16 – Intervention Logic: problem definition, drivers and objectives 

59 

 
 
 
4  Legal basis, subsidiarity and proportionality 
As mentioned, the claimed legal basis for intervening to address the policy problem is Article 
298 TFEU. According to the European Parliament’s European Added Value Assessment of a EU 
Law  of  Administrative  Procedure,  ‘the  suitability  of  this  legal  basis  to  legislate  on  general 
administrative  principles  and  rules  is  beyond  doubt’.80  In  fact,  since  question  marks 
concerning a possible legal basis for enacting a European law of administrative procedure had 
been swirling around for a while, the introduction of Article 298 TFEU was specifically aimed 
at addressing this problem (Leino 2014). However, there has been some debate as regards the 
suitability of these provisions as a legal basis for the proposed intervention. This is mostly due 
to claims that the wording of Article 298 TFEU refers to administration within the institutions, 
instead of regulating the relationship between the institutions and the public. However, this 
argument has been dismissed on the basis that the Treaty already includes other possible legal 
bases for the adoption of the institutions’ own Rules of Procedures (notably Article 336 TFEU). 
Staff  regulations,  which  regulate  the  relationship  between  the  institutions  and  their  civil 
servants, are specifically left outside the scope of Article 298 TFEU. Adding another legal basis 
for the institutions’ own Rules of Procedures, and staff regulations would indeed have made 
little  sense  (Leino  2014).  In  the  words  of  Craig  et  al.  (2017,  37):  ‘[t]he  narrow interpretation 
would  have  the  effect  of  reducing  the  scope  of  [Article  298  TFEU]  to  a  mere  reference 
announcing  the  possibility  of  staff  regulations  being  adopted  under  Article  336  TFEU,  or  a 
simple restatement of the principle of self-organization’. Moreover, the explanations adopted 
by  the  Intergovernmental  Conference  concerning  the interpretation  of  the  Article  41  ECHR 
specifically mentions the legal basis in Article 298 TFEU for the adoption of legislation in the 
interest of an open, efficient and independent European administration, clearly establishing a 
link between the two provisions. Furthermore, the entry into force of the Treaty of Lisbon has 
emphasised the citizens’ perspective even more generally due to the introduction of a new 
Treaty Title on democratic principles governing all Union action. In particular, Articles 9 and 
10 TEU underline the right of citizens to participate in the democratic life of the Union. Since 
these principles apply by definition to ‘all areas of Union action’ and are not limited e.g. to the 
Union’s legislative work, they clearly set high requirements for Union administration as well 
(Craig 2012; 2013; 2015). 

As regards proportionality, the most important issue is whether the objectives identified in 
Section  2  above  can  be  achieved  through  non-regulatory  means,  or  require  a  binding 
legislative intervention. In this respect, the existence of a non-binding code since 2001 and 
the activity of the European Ombudsman in recent years have shown that soft-law measures 
are  not  sufficient  to  alleviate  the  existing  fragmentation  of  practices.  As  observed  i.a.  by 
Hofmann  et  al.  (2014),  although  ‘general  principles  of  law  can  in  theory  cover  rights  and 
obligations arising in the context of rule-making, contracts, planning procedures, information 
exchange systems, enforcement networks, in reality the development of many of these issues 
is  hampered  by  the  limited  standing  rights of individuals  especially when  it  comes  to  rule-
making and contracts as well as information management activities’ (Hofmann et al. 2014, 6). 

80 See, European Added Value Assessment of the Law of Administrative Procedure of the European Union, EAVA 

1/2012, European Added Value Unit, European Parliament, page 5. 

60 

 
                                                             
Accordingly, a regulatory measure appears to be proportionate to the objectives, subject to 
the assessment of its prospective impacts (see below, Section 6).  

The  assessment  of  the  European  Added  Value  can  be  subsumed  under  the  umbrella  of 
proportionality,  since  the  European  dimension  is  inherent  in  the  type  of  regulatory 
intervention at hand (i.e., establishing a regulatory framework for Good Administration at the 
EU level) and, as already explained, regulating national administrative procedure does not fall 
within the scope of the proposal and of its corresponding legal basis.  

In  terms  of  subsidiarity,  Article  298  TFEU  leaves  national  procedural  autonomy  relating  to 
forms of action or procedural requirements untouched. The focus of the future Regulation will 
be on the EU institutions, bodies and agencies. Thus, the matter would not be problematic 
from  the  point  of  view  of  subsidiarity:  the  openness,  efficiency  and  independence  of 
administration in the EU institutions would be regulated only at EU level, not at the national 
level as well.  

61 

 
 
5  Alternative policy options 
Once  the  policy  problem  has  been  identified  along  with  its  drivers  and  the  objectives  of  a 
possible  policy  intervention,  it  is  important  to  identify  alternative  policy  options  that 
potentially address the policy problem. These options typically include also the so-called ‘zero 
option’, or ‘do nothing’ option, which implies that no new policy measure is taken. Including 
the zero option in the list of alternatives is important in order to compare the potential added 
value of policy measures under consideration.   

In this respect, this impact assessment is peculiar since it was drafted after the adoption of a 
policy initiative, rather than beforehand. Moreover, the policy initiative in question was tabled 
after a two-decade-long debate that clarified that going beyond the scope of the proposal 
itself  would  not  be  politically  feasible,  as  it  would  lack  the  backing  of  all  EU  institutions. 
Accordingly, in the selection of alternative policy options we have focused on the initiatives 
that fall in between the status quo and the Parliament’s proposal. Moreover, the selection of 
alternative  policy  options  that  ideally  address  the  identified  policy  problem  and  meet  the 
aforementioned  objectives  proceeds  along  two  parallel  threads:  on  the  one  hand,  the 
substantive debate on which rules of administrative procedure are ‘good’ (or at least ‘fit the 
constitutional  and  legal  system’);  on  the  other  hand,  whether  these  need  (uniform) 
codification across a certain administration. The debate at the EU level appears to centre on 
the latter issue, which, however, is no binary issue (to codify or not), making it more complex 
than it may seem, but also offering more possibility to ‘meet in the middle’.  

Against this background, we have identified the following policy alternatives for the purposes 
of our impact analysis.  

Option zero (‘Do nothing’). This corresponds to the existing situation and incorporates its likely 
evolution.  As  explained  already  in  Section  2  above,  under  this  option  it  is 
unlikely  that  there  would  be  any  consolidation  and  simplification  of  EU 
administrative law.  Over  time,  one  could  expect  a  gradual  development of  e-
administration  tools  across  EU  institutions,  but  this  may  not  lead  to  any 
convergence  in  the  application  of  EU  rules  of  administrative  procedure.  The 
European Ombudsman would continue its activity in the attempt to shape and 
promote principles of good administration; and the Court of Justice of the EU 
will continue to provide its orientations on the protection of the rights of the 
members of the public when interacting with EU institutions. 

Option 1. 

Make the European Ombudsman Code binding. This would be in line with the first 
proposal  by  the  European  Parliament  on  the  matter  in  2001,  where  the 
Parliament  had  called  the  Commission  to  submit  a  proposal  for  a  Regulation 
containing  a  code of  good  administrative  behaviour.81  Under  this  option,  the 
Code  drafted  by  the  European  Ombudsman  and  endorsed  by  the  European 
Parliament  in  2001  would  be  made  binding  on  all  EU  institutions,  agencies, 
offices and bodies. This would imply the adoption of implementation measures 
that  would  make  the  provisions  of  the  2001  Code  enforceable.  It  would  also 

81    European  Parliament  resolution  on  the  European  Ombudsman's  Special  Report  to  the  European  Parliament 
following the own-initiative inquiry into the existence and the public accessibility, in the different Community 
institutions and bodies, of a Code of Good Administrative Behaviour (C5-0438/2000 - 2000/2212 (COS)) 

62 

 
                                                             
entail the introduction of measures focused on administrative behaviour, rather 
than  administrative  procedure:  as  a  matter  of  fact,  the  Code  addresses  ‘the 
official’ (the person), rather than the institutions. Most of these measures would 
be less ambitious than the ones foreseen by the European Parliament in its 2016 
proposed  regulatory  framework,  although  in  a  subset  of  cases  (access  to 
documents) they would go beyond.82  

Option 2.  

European  Parliament’s  proposed  regulatory  framework.  This  would  entail  a 
regulation  covering  administrative  procedure  in  the  relationship  between  EU 
administrations and the public. This corresponds to the regulatory framework 
proposed by the European Parliament in 2016 and described in Box 1 above. 
More specifically, this means that rules would be enacted:  

•  On the initiation of proceedings, including proceedings started on the 
own  initiative  of  the  Union’s  administration,  and  proceedings  started 
upon application by a party;  

•  On various rights related to the management of the procedure (various 
procedural  rights,  the  duty  of  careful  and  impartial  investigation;  the 
duty to cooperate; rules that apply in case witness or experts are to be 
heard; rules on inspections, on conflicts of interest, on access to the file; 
the duty to keep records and rules on time limits);  

•  On  the  conclusion  of  the  administrative  procedure 

(form  of 
administrative  acts,  duty  to  state  reasons,  duty  to  communicate 
available remedies and the notification of acts);  

•  On the rectification and correction of acts.  

In  addition,  there  would  be  a  new,  general  obligation  for  the  Commission  to 
publish updated online information on the existing administrative procedures 
in an ad hoc, public and free website, wherever possible and reasonable, with 
priority given to application procedures.83  

It  is  important  to  reiterate  that  none  of  the  proposed  policy options would  entail  so-called 
‘maximum harmonisation’, i.e. the definition of common rules of administrative procedure for 
EU  institutions,  agencies,  offices  and  bodies,  with  no  possibility  of  derogation,  or  the 
preservation  of  special  sets  of  rules  for  individual,  specific  cases.  We  considered  and  then 
discarded this option at an early stage, as it would be excessively rigid, and would not allow 
the  preservation  of  specific  regimes  that  are  needed  to  reflect  the  peculiarities  of  the 
administrative actions. In addition, this option would not address the concern expressed by 
the  European  Commission  in  responding  to  the  European  Parliament  in  October  2016:  as 
already  mentioned,  the  Commission  found  that  Codification  would  ‘remove  the  flexibility 

82 As a matter of fact, the European Parliament proposal focuses on access to the file. 
83 Such a website should contain information such as a link to the applicable legislation, a brief explanation of the 
main legal requirements and their administrative interpretation, a description of the main procedural steps, 
the  indication  of  the  authority  competent  to  adopt  the  final  act,  the  indication  of  the  time  limit  for  the 
adoption of the act, the indication of remedies available, a link to standard forms that may be used by parties 
in their communications with the Union's administration within the procedure. 

63 

 
 
                                                             
required  to  adapt  to  particular  needs.’84  Finally,  this  option  was  explicitly  ruled  out  by  the 
European  Parliament  in  its  Resolution  of  26  October  2017,  in  which  it  clarified  that  the 
proposed rules would be supplementary to existing EU law, when legal gaps or interpretation 
problems arise, and would bring more accessibility.85 

Much in the same vein, we do not consider more ambitious options that are thought desirable 
by  some  of  the  stakeholders,  including  academics  (including,  for  example,  many  of  the 
members  of  the  RENEUAL  network)  and  think  tanks  (e.g.  the  European  Risk  Forum).  These 
stakeholders advocated the need for a broader intervention on several occasions, which also 
encompasses  the  policy  process,  in  particular  with  regard  to  lawmaking  procedures  (in 
particular implementing and delegated acts), as well as stakeholder consultation. This would 
amount  to  a  European  ‘Administrative  Procedure  Act’,  similar  to  the  US  APA,  which 
incorporates notice and comment procedures, as well as the obligation to perform regulatory 
impact  analysis  on  major  regulatory  proposals.  This  system  would  also  make  it  possible  to 
engage in more evidence-based policymaking throughout the policy process, in particular in 
cases of risk regulation; and to create a ‘docket management system’ at the EU level, possibly 
more  structured  and  accessible  than  the  US  one  (see  ERF,  submission  to  the  public 
consultation of the JURI Committee).86  

84 Exchange of views of Commissioner Oettinger with BUDG, CONT and JURI Committees, see  

http://www.europarl.europa.eu/cmsdata/113048/161221_Oettinger%20exchange%20of%20views_written
%20answers_final.pdf, 47. 

85  European  Parliament,  Resolution  of  26  October  2017  on  monitoring  the  application  of  EU  law  2015, 

2017/2011(INI). 

86 In the United States, the Federal Docket Management System (FDMS) is a centralised document management 
system  that  provides  Federal  Agencies  and  citizens  the  ability  to  search,  view,  download,  and  submit 
comments on federal Notices and Rules. The public interface for FDMS can be found at www.regulations.gov. 

64 

 
                                                             
6  Impact assessment  
Assessing the impact of measures related to administrative procedure is a very challenging 
task, as mentioned in Section 1. First, singling out the net impact of the existence of a Law of 
Administrative Procedure from the general impact of the whole conduct of the administration 
on citizens and business inevitably comes with a degree of approximation. Second, many of 
the impacts at stake (e.g. enhanced legal certainty; protection of the right to be heard; etc.) 
are not susceptible to quantification, and are to be classified within the general categories of 
non-market  impacts,  which  can  be  extremely  important,  despite  not  being  quantifiable  or 
monetisable. Third, the extent to which changes in the law will improve the protection of the 
rights at hand (as recognised by Article 298 TFEU and Article 41 CFR) depends very much on 
the adoption of specific provisions, but also on their concrete implementation, which depends 
on the way in which these provisions are included and mainstreamed in the daily practices of 
the institutions, agencies, offices and bodies of the European Union.  

In this context, the EU impact assessment system requires that relevant economic, social and 
environmental impacts of alternative policy options are identified and assessed. Among the 
impacts  contemplated  by  the  European  Commission  Better  Regulation  Toolbox,  the  ones 
mostly  concerned  by  the  policy  measures  under  analysis  are:  (i)  governance  and  good 
administration, classified as a social impact; (ii) public authorities (and budgets), classified as 
an economic impact; and (iii) citizens’ rights and justice, both classified as fundamental rights. 

At a more granular level of detail, we focus on a number of impacts, which can be considered 
as conducive to a more open, efficient and independent administration, and can mostly be 
subsumed under the three categories of impacts mentioned above.  

•  Good administration. This is still an evolving concept in EU law. Hofmann (2014) observed 
that the CJEU has referred to notions of ‘good’, ‘sound’, or ‘proper’ administration since 
the very early case-law. The right to good administration is now a right recognised as a 
general principle of EU law (Article 6(3) TEU), and with the entry into force of the Charter 
of  Fundamental  Rights  (CFR)  under  the  Treaty  of  Lisbon,  good  administration  is  also 
recognised as a binding fundamental right under Articles 41 CFR, pursuant to Article 6(1) 
TEU, which gives the Charter the ‘same legal value’ as the Treaties (see chapter 9). 

Good administration is often broken down into sub-principles, which include (Hofmann 
2014):  

•  The right to have his or her affairs handled impartially, fairly and within a reasonable 
time  (the  duty  of  care),  which  implies  an  obligation  for  the  administration  to 
impartially  and  carefully  establish  and  review  the  relevant  factual  and  legal 
elements  of  a  case,  prior  to  making  decisions  or  taking  other  steps.  This  also 
requires  that  there  be  no  conflict  of  interest;  to  know  the  identity  of  persons 
conducting investigations and making decisions; and to the treatment of an issue 
‘within a reasonable time’.  

•  Hearing and Access to One’s File. Article 41(2)(a) and (b) CFR address the right to a 
fair  hearing  (audi  alteram  partem  or  audiatur  altera  pars)  ‘before  any  individual 
measure’ which could affect a person ‘adversely’ is taken.  

•  Reasoning  of  Decisions.  Article  41(2)c)  CFR  is  grounded  in  the  more  general 
obligation under the EU Article 296(2) TFEU, which includes the duty to provide 

65 

 
 
and indicate evidence used to back restrictive measures.  

•  Damages. The right to good administration in Article 41(3) CFR contains an explicit 
reference to the right to receive compensation for damage under Article 340 TFEU.  

• 

Language Rights. The entitlement to ‘write’ to the institutions of the Union in one 
of the languages of the treaties and to receive an answer in the same language’ 
simply repeats the existing right under Article 24(4) TFEU. 

•  Good governance, more generally, includes principles such as accessibility, transparency, 

legal certainty and predictability, and information-related rights.  

•  Transparency  and  accountability  of  the  European  institutions.  The  more  open  an 
administration, the more citizens understand how decisions are taken. The more 
decisions  are  motivated,  the  more  citizens  can  see  which  factors  drive 
administrative  action.  The  more  an  administration  abides  by  transparency 
obligations,  disclosing  the  expectations  and  beliefs  that  led  to  administrative 
action, the greater the administration’s accountability for the input, throughput 
(process),  output,  outcomes  and 
‘right  to 
transparency’ is part of the third generation of human rights, and includes, in turn, 
the  following  rights:  (i)  the  right  to  know:  citizens  have  the  right  to  know  what 
happens inside the government that is at their service; (ii) the right to control: when 
the actions of the authorities are known, it is possible to control the legality and 
timeliness of the decisions taken, it is also likely to know how public funds are used 
and  what  is  their  fate;  and  (iii)  the  right  of  citizens  to  be  actors  and  not  just 
spectators of political life. 

its  decisions.  The 

impacts  of 

•  The accessibility of EU administration. Provisions on the right to access information 
and access to the file increase the accessibility of EU administration for members 
of the public, and is directly related to the legitimacy of the administration.  

• 

Legal certainty and predictability. The uniformity of procedures across institutions, 
the easy access to information on ongoing administrative procedure, the respect 
of  time  limits  and  fair  procedure,  the  obligation  to  motivate  decisions  and  the 
availability  of  easily  accessible  remedies  contribute  to  legal  certainty.  Legal 
certainty is acknowledged as a general principle of EU law.87 According to the CJEU 
the  principle  of  legal  certainty  requires  essentially  two  things:  (i)  ‘legal  rules  be 
clear  and  precise,  and  aims  to  ensure  that  situations  and  legal  relationships 
governed by Community law remain foreseeable; and (ii) those subject to the law 
must  know  what  the  law  is  so  as  to  plan  their  action  accordingly.88  Practically 
speaking, this has a series of consequences, for example: EU institutions are barred 
from  applying  rules  to  individuals  that  are  inconsistent  or  contradictory;89  the 

87 Case C 55/91 Italien v Commission [1993] ECR I-4813, para. 66; Joined Cases T-55/93 and T-232/94, T-233/94 and 
T234/94  Industrias  Pesqueras  Campos  v  Commission  [1996]  ECR  II-247,  paras.  76,  116,  119;  Case  43/75 
Defrenne  v  SABENA  [1976]  ECR  455,  paras.  69ff.;  Case  C-143/93  Gebroeders  van  Es  Douane  Agenten  vs 
Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, para. 27; Joined Cases 205/82 to 215/82 Deutsche 
Milchkontor and Others v Germany [1983] ECR 2633. 

88 Takis Tridimas, The General Principles of EU Law, 2nd edn. (OUP, 2006) 242. 
89  Case  T-115/94  Opel  Austria  v  Council  [1997]  ECR  II-39,  para.  125;  Case  C-143/93  Gebroeders  van  Es  Douane 
Agenten vs Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, para. 27; there the Commission was 

66 

 
                                                             
prohibition  of  double  jeopardy,  also  known  as  the  principle  of  ne bis in idem  in 
criminal  law  and  embodied  in  Article  50  CFR  in  comparable  terms;  the 
requirement that administrative proceedings be conducted within a reasonable 
period of time;90 the requirement of legal certainty with respect to legal charges, 
limitation periods; and the prohibition, in principle, of retroactive effect of EU law. 
After all, ‘slow administration is bad administration’;91 and might be in violation of 
the concept of legal certainty. This concept is reflected in Article 265 TFEU (Article 
232 EC), giving a remedy for undue delays in decision-making. 

•  The trust of citizens towards the administration.  As  the  European  Commission  (in 
this case, DG Enlargement) itself recognised, the concept of Good Administration 
‘redefines  administrative  operation  and  citizen-administration  relationships’, 
‘serves 
the  executive 
power’,92 Among others, Mashaw concludes that ‘administration without reason 
cannot meet the challenge of defending its democratic legitimacy’ (Mashaw 2007, 
124).  

the  community  and  promotes  social 

trust 

in 

• 

Information-related rights. Any person, not only parties not subject to an individual 
measure, enjoys the general right of access to documents under Articles 42 CFR 
and  15(3)  TFEU.  The  right  of  access  to  documents  is  now  protected  both  as  a 
general principle of Union law and through provisions of primary law. The right of 
access  to  documents  has,  over  the  years,  also  been  an  element  of  several 
generations  of  regulation  in  secondary  law.  Currently,  Regulation  1049/2001 
issued on  the  basis of  what  is  now  Article  15  TFEU is  the  general  legislation on 
access to documents.  

•  Citizens’ rights of defence and to an effective remedy. A remedy under EU law, by analogy 
with Article 13 ECHR, ‘must be “effective” both in law and in practice.’ Compliance with the 
right to an effective remedy, therefore, depends both on (i) the procedural aspect whether 
the Member State offers procedural rules granting fair possibilities of bringing a case and 
that admissibility criteria allow actual access to a court, and (ii) the more substantive issue 
whether success on the grounds of the claim of violation of a right under EU law would 
lead to a remedy that is capable of addressing the violation of the right. As for additional 
rights of defence, the CJEU held that, ‘Respect for the rights of the defence constitutes a 
fundamental  principle  and  must  therefore  be  ensured  not  only  in  administrative 
procedures  which  may  lead  to  the  imposition  of  penalties  but  also  during  preliminary 
inquiry procedures such as investigations.’93 Generally speaking, rights of defence include: 

held to be ‘under an obligation to amend those regulations’ which were detrimental to the principle of legal 
certainty  which  requires  that  an  individual  will  be  able  ‘to  ascertain  unequivocally  what  his  rights  and 
obligations are and take steps accordingly’. 

90 Case T-347/03 Branco v Commission [2005] ECR II-2555, para. 114; Case T-125/01 José Martí Peix v Commission 
[2003] ECR II-865, para. 111; Joined Cases T-44/01, T-119/01, and T-126/01 Vieira and others v Commission 
[2003] ECR II-1209, para. 167. 

91 AG Jacobs in C-270/99 P Z v Parliament [2001] ECR I-9197, para. 40 with reference to Art. 41 of the Charter and 

claiming that this was ‘a generally recognised principle. 

92 

Speech 

by 

the 

Head 

of 

the 

EU 

Delegation 

to 

Montenegro: 

http://www.delmne.ec.europa.eu/code/navigate.php?Id=939   
93 Case 46/87 Hoechst v Commission [1989] ECR 2859, summary point 1.  

67 

 
 
                                                             
(i) a limited right of legal professional privilege, concerning the right to confidentiality of 
communications with an external lawyer; and (ii) a limited right against self-incrimination. 
This, for example, prohibits the Commission, in a request for information in competition 
proceedings, to require the undertaking ‘to provide it with answers which might involve 
an admission on its part of the existence of an infringement’. 

•  The effectiveness and efficiency of EU institutions. By effectiveness we intend the ability of 
the  administration  to  achieve  its  intended  goals  and  objectives.  On  the  other  hand, 
efficiency implies the ability of doing so at the least possible cost. Efficiency is typically 
measured through cost-benefit analysis, and more specifically through the calculation of 
net benefits, or qualitative analysis aimed at demonstrating that benefits justify the costs. 
In this respect, impacts are not to be intended as limited to institutions: a more efficient 
EU administration also means lower costs for EU citizens (Ladenburger (2005), Ziller (2011a 
and 2011b) and Mir (2011)). 

In order to assess these impacts and where possible quantify them, we rely extensively on the 
results  of  our  empirical  analysis  in  Section  2  above,  and  use  other  studies,  estimates  and 
available  statistics  to  illustrate  the  possible  impact  of  alternative  policy  options.  More 
specifically,  we  map  the  areas  of  good  administrative  practice  in  which  there  is  significant 
distance between the existing practice in EU institutions, and the corresponding requirements 
of the option at hand (e.g., for Option 2, these would be the provisions existing in the European 
Parliament’s  proposed  regulatory  framework).  For  those  areas,  we  identify  the  types  of 
impacts that are most likely to occur, and seek to describe them in detail in a qualitative or 
quantitative  way.  The  mapping  of  the  individual  parts  of  the  administration  that  are  more 
distant from the required set of good administrative rules is also important to estimate the 
population of bodies that would face the adaptation costs.  

Sections 6.1, 6.2 and 6.3 below contain an assessment of the main impacts of the alternative 
options identified above. Section 6.3 compares alternatives and indicates the preferred policy 
option.  

  Option zero (‘Do nothing’) 

Under  this  option,  no  new  regulatory  intervention  would  be  adopted.  This  does  not 
necessarily  mean  that  EU  administrative  procedures  would  not  evolve  over  time,  or  that 
fragmentation would remain unchanged. But as demonstrated by the limited convergence 
towards the 2001 EU Code of Good Administrative Behaviour observed over the past 17 years, 
there is reason to doubt that EU bodies would take active steps to change and upgrade their 
rules  of  administrative  procedure.  There  may  be,  however,  a  gradual  digitisation  of 
transactions guided by an attempt to realise the vision set by the Digital Single Market strategy 
and  the  European  Interoperability  Framework  agendas  and  the  Ministerial  Declaration 
adopted in Tallinn.94 As the benefits of digitisation are more easily reaped in the presence of 
compatible  and  interoperable  standards  and  practices,  such  a  transition  may  however  fall 

94  See  the  new  European  Interoperability  Framework  at  https://ec.europa.eu/isa2/publications/european-
at 

interoperability-framework-eif_en; 
https://ec.europa.eu/digital-single-market/en/news/communication-eu-egovernment-action-plan-2016-
2020-accelerating-digital-transformation. 

the  Ministerial  Declaration 

e-Government 

and 

on 

68 

 
                                                             
short of producing the desired benefits and cost savings, unless more uniform practices are 
promoted through the administration.  

This option would have significant cost implications for EU institutions, agencies, offices and 
bodies and for members of the public, mainly in the following areas:  

•  The lack of full protection of the right to a good administration in Europe. As shown in Section 
2.3 above based on our empirical analysis, the current situation is characterised by a high 
level  of  fragmentation  among  EU  institutions,  agencies,  offices  and  bodies.  This 
fragmentation operates at all levels: between parts of the EU administration that have a 
code of administrative procedure and those that don’t (almost evenly split); and among 
those  that  have  a  code  of  administrative  procedure,  or  a  code  of  good  administrative 
behaviour.  Our  map  of  the  coverage  of  existing  codes  shows  that,  at  least  in  terms  of 
formalised rules, option zero would mostly lead to the lack of protection of various types 
of citizen rights, including i.a. the right to be heard; the right to a careful and impartial 
investigation; the right to accessible remedies; the right to a fair procedure, the right of 
access  to  the  file;  language  rights;  etc.  The  recent  public  consultation,  as  reported  in 
Section 2.3. above, confirmed that stakeholders consider the status quo as insufficient to 
protect these basic rights. Some of these rights are closely linked to the very concept of 
EU  citizenship,  as  set  out in  Article  20  TFEU.  These include  the  right  to  write  to  any  EU 
institution or body in one of the languages of the Member States and to receive a response 
in the same language (Article 24(4) TFEU); and the right to access European Parliament, 
Council and Commission documents, subject to certain conditions (Article 15(3) TFEU). 

• 

Inefficiencies,  transaction  costs  and  opportunity  costs.  As  confirmed  by  our  empirical 
analysis (Section 2), the status quo generates various types of costs, including:  

•  Cost of delays by public administrations. As observed during the public consultation 
and  confirmed  by  our  empirical  analysis,  not  adopting  time  limits,  and/or 
respecting existing time limits is perceived as a real problem. This can give rise to, 
most often, ‘hassle costs’ for citizens; and also opportunity costs for citizens and 
businesses that depend on the completion of an administrative procedure to start 
or  continue  their  businesses.  Inefficient  public  administration  is  considered 
internationally  as  an  obstacle  to  growth  and  competitiveness,  and  can  cost 
between  1%  and  2%  of  GDP  for  some  countries.  In  certain  legal  systems,  e.g. 
France  and  Mexico,  methods  to  assess  the  cost  of  the  delays  in  administrative 
procedures have been added to the better regulation toolbox (see e.g. Renda et 
al. 2013; and the Mexican SIMPLIFICA methodology).95 In our empirical analysis, 
the lack of consistent and enforceable rules on time limits, as well as the lack of 
consistent and enforceable rules on acknowledgment of receipt can lead to these 

95 In the French methodology, the increased costs due to administrative delay include personnel costs (e. g. costs 
for personnel that could not be utilised); financing costs (e. g. additional loans to bridge the administrative 
delay);  fines  or  compensation  payments  (e.  g. because  certain orders could  not be  fulfilled  in time);  costs 
incurred in the award of sub-contracts; costs incurred by the loss in value of goods or products, etc. The effects 
caused by lowered production or decreased sales can extend to the current, as also to the future, situation of 
the  enterprise,  e.  g.  with  respect  to  certain  market  share.  Financial  costs  result  from  a  non-utilisation  of 
invested capital (taking into account all asset components). The costs of delays are calculated as opportunity 
costs or profits foregone on account of the delay (e. g. using average returns in relation to the foregone sales 
or the capital that was not invested). See, for a detailed description, Renda et al. (2013). 

69 

 
 
                                                             
types of costs.  

•  Costs due to legal uncertainty. The lack of legal certainty was reported during the 
public consultation, as well as during our workshop. This can lead to hassle and 
opportunity  costs  that  are  similar  in  nature  to  the  costs  generated  by  delays  in 
public  administrative  proceedings.  Legal  uncertainty  can  chill  investment  and 
lead  to  suboptimal  investment  decisions  on  the  part  of  both  individuals  and 
businesses.  

•  Costs  due  to  lack  of  adequate  information.  These  costs  were  consistently  and 
frequently  observed  during  our  empirical  analysis.  The  public  consultation,  in 
particular,  has  shown  that  individuals  and  businesses  often  have  problems  in 
finding basic information related to administrative procedures; they often find it 
difficult  to  locate  the  competent  persons  inside  the  administration  and  to  gain 
information  about  the  state  of  advancement  of  their  requests.  This  leads  to 
additional  investment  in  information  gathering  by  the  public,  which  can  be 
classified  either  as  ‘transaction  costs’,  where  the  transaction  in  question  is  the 
interaction between the administration and the individual, or as ‘administrative 
costs’, due to the greater complexity of the administrative activities required by 
the public.    

•  Costs  due  to  redundancies,  inconsistencies  and  lack  of  communication  inside  the 
administration. Our analysis has shown that fragmentation is not caused solely by 
the need for flexible administrative procedures, it also affects the basic principles 
of  good  administrative  behaviour  and  the  respect  of  fundamental  rights.  This 
being  the  case,  the  lack  of  common,  uniform  procedural  rules  leads  to 
inconsistencies  across  the  EU  administration,  and  possibly  also  duplication  of 
procedures, or ‘costs of reinventing the wheel’ as authoritatively defined during 
our workshop.96  

•  Opportunity costs due to the impossibility of fully reaping the benefits of e-government and e-
administration.  The  obstacles  that  the  status  quo  and  its  likely  evolution  poses  for  the 
development of e-administration and e-government services and infrastructure across the 
EU administration are potentially huge. Our workshop hosted an important discussion on 
the need for consistency and reasonable uniformity across the administrative rules and 
procedures of various EU institutions, agencies, offices and bodies as a precondition for 
the development of ‘building blocks’ and the realisation of huge efficiency gains in the EU 
administration (see Section 2.3.4 above). The concept of ‘legal interoperability’ is also part 
of  the  European  Interoperability  Framework,  and  includes  the  interoperability  of 
procedures.   

•  Cost  for  the  European  Ombudsman  related  to  the  need  to  investigate  cases  of  alleged 
maladministration that (if confirmed) would not have occurred under more binding rules; 
or (if not confirmed) may have been interpreted more clearly under more understandable 
and transparent rules. 

• 

Lack of legitimacy of the European Union in the eyes of the public. Citizens and businesses do 

96 Prof. Dr. Herwig Hofmann, during our workshop held on May 7, 2018.  

70 

 
                                                             
not  have  a  particularly  favourable  view  of  the  functioning  of  EU  administration;  in  the 
public  consultation,  more  than  half  (54%)  of  respondents  had  a  mixed  or  negative 
perception. The  partial  lack  of  compliance with  basic  principles  of  good  administration 
and the failure to always respect citizens’ rights leads EU institutions, agencies and bodies 
to become ‘black boxes’, partly inaccessible to the public and not always transparent and 
accountable for the information they process (input), the way in which such information 
is  produced  and  processed  (throughput),  the decisions  that  are  taken  (output)  and  the 
ultimate outcomes and impacts of their decisions. The EU administration is thus not seen 
as being fully inclusive, open, transparent and accountable.   

All  in  all,  option  zero  would  appear  to  be  very  costly  for  the  European  Union,  especially  in 
terms of its relationship with the public and its legitimacy in the eyes of citizens. Option zero 
also creates concrete, monetisable costs for citizens and businesses, which will be assessed in 
the form of potential benefits in the analysis of options 1 and 2 below.   

  Option 1: making the 2001 Code binding 

Our  first  alternative  option  would  be  to  implement  the  recommendation  adopted  by  the 
European  Parliament  back  in  2001,  and  make  the  Code  of  Good  Administrative  Behaviour 
binding on all EU institutions, agencies, offices and bodies. This Code addresses EU officials 
and, in reiterating the right to good administration enjoyed by the public under Article 41 CFR, 
specifies that EU officials shall: 

•  Be guided by a spirit of service towards the European Union and its citizens; by a sense of 

propriety and conduct (integrity).  

•  Be impartial, open-minded, guided by evidence, and willing to hear different viewpoints. 

•  Avoid conflicts of interests. 

•  State  the  grounds  for  the  decisions  adopted  by  the  administration  (Art.  18),  and  notify 

them in writing (Art. 19). 

• 

Indicate appeal possibilities clearly (Art. 20). 

•  Handle requests for information effectively (Art. 22), and requests for access to documents 

in line with Regulation 1049/2001 (Art. 23). 

•  Respect the privacy and the integrity of the individual in accordance with the provisions 

of EU legislation, and avoid processing data for non-legitimate purposes (Art. 21). 

•  Be ready to acknowledge and correct mistakes (Art. 12.3).  

•  Be merit-based when involved in comparative evaluations. 

•  Be  respectful  to  each  other  and  to  citizens,  as  well  as  polite,  service-minded,  helpful, 

timely, and cooperative (Art. 12.1). 

•  Ensure  that  measures  taken  are  proportional  to  the  aim  pursued;  and  respect  the  fair 
balance between the interests of private persons and the general public interest (Art. 6). 

•  Be consistent in his or her own administrative behaviour as well as with the administrative 

action of the institution (Art. 10). 

71 

 
 
•  Ensure  that  every  citizen  of  the  Union  or  any  member  of  the  public  who  writes  to  the 
institution in one of the Treaty languages receives an answer in the same language (Art. 
13).  

•  Ensure that every letter or complaint to the institution receives an acknowledgement of 
receipt within a period of two weeks, indicating the name and the telephone number of 
the competent official, as well as the service to which he or she belongs (Art. 14). 

•  Ensure that a decision on every request or complaint to the institution is taken within a 
reasonable time limit, without delay, and in any case no later than two months from the 
date of receipt (Art. 17). 

•  Ensure the respect of the rights of defence (Art. 16) 

•  Keep adequate records (Art. 24). 

All these obligations are addressed to the official, not to the institution. Two closing provisions 
are  addressed  to  institutions:  the  obligation  to  publish,  where  possible,  the  Code  on  their 
websites (Art. 25); and the obligation to review its implementation of the Code after two years 
of operation and to inform the European Ombudsman of the results of its review (Art. 27). 

Option 1 would imply that the 2001 Code is translated into enforceable measures through a 
regulatory intervention. This would mean that EU officials would be subject to all obligations 
listed above. The adoption of a regulatory measure would anyway be complicated by the fact 
that the Code was not initially written to be enforceable, but rather to exert a moral suasion 
on officials. Furthermore, the Code would overlap with other pieces of regulation such as the 
EU staff regulations, which are addressed to EU officials. This was originally the strategy of the 
Ombudsman,  who  saw  the  possibility  of  enacting  EU  administrative  law  by  means  of  a 
regulation,  as  recalled  by Mendes  (2009).  However, the  text of  the  Code was criticised  as  a 
basis  for  regulatory  intervention  since  it  mixes  provisions  that  remained  at  the  level  of 
principles (e.g. the duty to be service-minded) with more concrete obligations that could lead 
to sanctions in case of non-compliance.  

Making  the  2001  Code  binding  would  have 
administration. These impacts are summarised below.  

important  consequences  for  the  EU 

6.2.1  Cost of compliance with Option 1 for the EU administration  

Given the existing fragmentation of administrative procedures across the EU administration, 
it  is  reasonable  to  expect  that  many  EU  institutions,  agencies  and  bodies  would  incur 
additional costs if the 2001 Code were made binding. Several types of additional costs can be 
identified. They fall under the category of compliance costs for the administration and will be 
borne by EU bodies.  

First,  EU  bodies  that  carry  out  more  administrative  proceedings  will  inevitably  be  more 
exposed  (in  particular,  the  European  Commission,  and  EU  agencies  will  face  most  of  the 
burden):  more  specifically,  it  is  important  to  analyse  those  administrations  that  carry  out 
inspections  (e.g.  the  European  Commission,  DG  COMP;  or  FRONTEX);  administrations  that 
receive  a  large  number  of  complaints  or  petitions  (e.g.  EPSO,  the  European  Parliament,  or 

72 

 
ECHA); and administrations that receive a large number of requests for access to documents 
(e.g. the Council, the Commission). 

Second, bodies that feature a comprehensive set of rules of administrative procedure similar 
to those envisaged under Option 1 will face lower costs than other bodies, in particular those 
that have fewer rules and no code of good administrative behaviour or good administration 
in place. We assume that the latter institutions have some rules of administrative conduct or 
procedure in place, but no comprehensive set of rules that govern administrative procedure 
in the administration’s interaction with members of the public.  

Compliance costs for the administration can be divided into one-off adaptation costs (due to 
the need to adopt the new procedure); and recurrent administrative burdens, due to the need 
to collect, store and provide more information to members of the public who request them.  

More specifically, one-off adaptation costs will include the revision of administrative rules to 
bring them in line with the new regulatory framework: this category includes i.a. the partial 
revision of the Staff and Financial regulations of the Commission; and the possible need to 
adapt the internal workflow in many of the institutions, agencies, offices and bodies to reflect 
the changed rules of administrative procedure. These costs are not significant, given that the 
Code  has  been  in  place  as  a  reference  and  the  basis  for  the  Ombudsman’s  activity  on 
maladministration for almost two decades. In addition, training costs are also likely to be low, 
since many of the provisions of the Code (e.g. the obligation to be service-minded) do not 
themselves  require  substantial  new  knowledge  on  the  part  of  EU  officials,  but  rather  a 
commitment  to  follow  the  principles  and  comply  with  the  obligations  of  the  Code.97 
Accordingly, costs for the training of EU administrative personnel to bring them up to speed 
with the new rules of administrative procedure should not be high. However, we would expect 
the  cost  of  drafting,  discussing  and  adopting  measures  that  would  make  the  2001  Code 
enforceable to be relatively high: the simple transposition of the 2001 Code into a binding text 
would not be sufficient to create legal certainty and predictability and may risk the provisions 
remaining a dead letter.  

Recurrent  costs  will  take  the  form  of  administrative  burdens.  These  would  include  costs 
generated  by  all  those  activities  (collection  of  information,  storage  of  records,  provision  of 
information to the members of the public, etc.) that are currently not being carried out by EU 
bodies,  and  would  be  performed  (differently)  once  the  new  provisions  are  in  place.  The 
activities  to  be  carried  out  could  fall  in  categories  such  as  sending  an  acknowledgment  of 
receipt,  logging  the  request  and  administering  the  case,  searching/obtaining  information, 
reading  time,  consideration  time,  consultation  with  colleagues  or  external  bodies, 
consultation with hierarchy, drafting of response and signing off. 

Quantifying these costs with precision is difficult. As stated i.a. by Holsen (2007) for the case of 
access  to  information,  ‘the  precise  cost  of  complying  with  [freedom  of  information] 
legislation…is virtually impossible to calculate. One reason for this is that some agencies keep 
track of costs while others do not; another reason is the wide variation in how the costs are 

97 Some of the other provisions such as the obligations to be merit-based when involved in comparative solutions; 
to  ensure  that  measures  are  taken  proportional  to  the  aim  pursued;  and  to  be  consistent  in  their  own 
administrative  behaviour  may  entail  some  training  modules  to  be  added  to  the  current  training  officials 
already receive. We consider these as a marginal addition in terms of training costs.  

73 

 
 
                                                             
calculated’.98 In addition, costs depend on a number of variables such as the time allocated to 
comply with Freedom Of Information (FOI) requests for access to documents, as well as the 
efficiency of response procedures (ibid., 52). Such factors increase the complexity of achieving 
accurate estimates.99  

That said, past attempts have led to the measurement of the cost of specific administrative 
procedures, such as handling requests for access to information, as discussed below in Box 2. 
We take these estimates as a proxy for estimates related to the general handling of requests 
in the administration. This allows us to engage in a quantitative estimate of some of the costs 
that would arise under options 1 and 2.  

Box 2: Existing studies: the case of FOI laws 

In the UK in 2011 the Ministry of Justice completed an impact assessment for modifications to 
Section 6 of the Freedom of Information Act 2000 (FOIA) in order to extend the scope of the 
FOIA to cover companies wholly owned by two or more public authorities. A study by Frontier 
Economics provided economic estimates of costs associated with procedural requirements: 
for example, the average FOI request was estimated to take 7.5 hours on average to process, 
and internal reviews were estimated to take 30.6 hours on average to process. Estimates of 
indicative  annual  average  costs  of  organising  for  FOI  requests  were  produced  for 
organisations  that  were  expected  to  receive  ‘high’  (£245,000)  ‘medium’  (£29,000)  and  ‘low’ 
(£4,000)  volumes of  requests.  The  average  cost  per FOI  request  in  various  jurisdictions  was 
calculated a few years ago by the Constitution Institute in the UK, and is reported below in 
Table 1. As shown in the table, the average cost per request ranged from 189 GBP in Scotland 
to 1,208 Australian Dollars; and the time needed to process a request ranged from 7h22m in 
Scotland to 38 hours in Canada. 

98 Holsen (2007), Freedom of Information in the U.K., U.S., and Canada. 
99  Factors  that  differed  according  to  country  reports  included:  (i)  Assessing  the  cost  of  or  costs associated  with 
processing  FOI,  i.e.  whether  or  not  the  cost  of  tribunals  and  internal  reviews  is  included  in  the  cost  of 
processing FOI, or the division between staff and non-staff costs; (ii) Difference between using the number of 
requests received or requests processed as an annual figure; and (iii) Classifications of request, i.e. FOI versus 
Enviromental Information Regulation (EIR) requests and whether they are treated separately. In the U.S. the 
report separated all requests within the categories of ‘simple’, ‘complex’ and ‘expedited’. 

74 

 
  
                                                             
Table 1 – Average cost of FOI request per country 

Source: Constitution Institute 

The costing figures presented by the Frontier Economics report were calculated from a one-
week costing exercise carried out in January of the year considered. The graph below shows 
the process of handling a request as described in the study: 

Figure 17 – Flow chart: handling a FOI request 

Source: Frontier Economics (2006) 

75 

 
 
 
 
 
 
The figures below show the average cost estimated per type of activity, and the percentage of 
FOI access requests per administrative activity involved. Similar analyses were performed for 
the Irish Freedom of Information Bill100 and to address the overall cost of FOIA in the United 
States, however without fully considering the corresponding savings.101  

Figure 18 – Average cost per type of FOI activity 

Source: Frontier Economics (2006) 

Figure 19 – Percentage of FOI requests per admin activity 

100 See https://www.tasc.ie/download/pdf/an_economic_argument_july29th2010.pdf 
101 

See  http://sunshineingovernment.org/wordpress/2013/05/23/cbo-releases-cost-estimate-on-foia-bill-but-
doesnt-address-savings/ 

76 

 
 
 
 
 
                                                             
Source: Frontier Economics (2006) 

For  the  purposes  of  this  study,  we  selected  a  number  of  representative  administrative 
procedures (the right to access documents, time limits, the right to be heard and the right to 
information about the procedure) and referred to past research and studies (e.g. the study by 
Frontier Economics on FOI); and existing tables (e.g. the Dutch CASH table and the German 
CASH table on the time and cost of individual administrative activity; the list of administrative 
activities existing in the European Commission’s better regulation toolbox). Finally, we use our 
mapping  of  existing  codes  of  administrative  behaviour  and  good  administration  across  EU 
institutions, agencies and bodies as a proxy for the business as usual (BAU) factor;102 the impact 
of individual provisions on individual bodies is mapped, also based on the perceived volume 
of administrative proceedings handled by the EU body at hand.   

Costs are generally measured according to the basic formula time x cost x frequency, net of 
business as usual (‘BAU factor’) for various administrative activities, e.g. in the case of access to 
documents, 
lodging  the  request  and  case  administration;  searching/obtaining  the 
information; reading time; consideration time; consultation with external bodies; consultation 
with higher level officials; drafting of response and sign off. In general, the methodology we 
adopt for quantifiable costs and cost savings is the following: 

Step 1. 

Step 2. 

Step 3. 

Identification  of  the  type  of  conduct  from  the  list  of  the  quantifiable  ones:  e.g. 
notification  of  the  decision  to  start  a  procedure;  access  to  information  or 
documents; stating the purpose and legal grounds of the act; indicating available 
remedies and the competent official.  

Definition  of  a  list  of  administrative  activities  that  would  be  needed  in  order  to 
comply with the new obligation, stemming from the implementation of Option 1.  

Analysis of existing fragmentation and distance from ‘frontier’, per EU body (each 
body  is  given  a  BAU  factor  per  individual  type  of  activity,  and  a  label  ‘high’, 
‘medium’ or ‘low’ depending on their estimated volume of administrative acts.  

Step 4. 

Estimation  of  how  many  additional  administrative  activities  would  be  needed 
under Option 1.  

Step 5. 

Quantification of the administrative burden of each individual act. 

Step 6.  Measurement of total burden per type of administrative conduct required. 

6.2.1.1  Cost of provisions on access to documents  

The provisions of access to documents are already contained in Regulation 1049/2001, which 
makes them binding. As a result, there is more data available for these procedures than for 

102 The European Commission Better Regulation Toolbox contains an explanation of the so-called BAU factor: ‘all 
costs (and benefits) considered for the purposes of an impact assessment should exclude those costs (and 
benefits)  that  would  materialize  anyway  even 
in  absence  of  a  new  policy  measure  ("BAU")’. 
http://ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf.  

77 

 
 
 
                                                             
 
many  other  provisions  contained  in  the  2001  Code.  We  use  the  calculation  of  the  cost  of 
handling  a  request  for  access  to  document  as  a  proxy  for  the  cost  of  a  relatively  simple 
administrative procedure.  

Many EU institutions receive a large number of requests for access to documents. For example, 
in  2016  the  Council  received  2,342  initial  requests  for  access  to  documents  and  24 
confirmatory  applications,  requiring  the  analysis  of  10,232  documents.  Full  access  was 
eventually granted to 7,307 documents and partial access to 556 documents. More than 76% 
of the documents for which access was requested were released in full, and more than 82% 
either in full or partially.103  

In  order  to  assess  the  cost  of  provisions  related  to  access  to  documents,  we  provide  an 
estimate based on available figures of complaints lodged with the Ombudsman, and existing 
estimates of administrative burdens. In particular: 

•  We consider that there are 10,000 yearly requests. This is based on the reported requests to 
the  Council  (2,342  in  2016,  requesting  access  to  10,232  documents,  with  full  access 
eventually granted to 7,307 documents); the Commission (6,077 applications registered in 
2016);104 EMA (865 requests for access to documents in 2017);105 ESMA (6 in 2016);106 EIOPA 
(6  in  2016,  for  a  total  of  10  docs);107  ECHA  (85  in  2017,  for  a  total  of  811  documents 
requested);108 Frontex (63 requests in 2016, for a total of 725 documents);109 the European 
Parliament (499 requests in 2016, for a total of 802 documents).110  

•  We consider a breakdown of requests that reproduces that of the data we collected: 61% for 
the  European  Commission,  24%  for  the  Council,  9%  for  EMA,  5%  for  the  European 
Parliament; 1% rest.  

•  Given that the provisions on access to documents are already subject to a binding regulation, 
we assume a 75% BAU factor. This is  because  the  public  consultation  and our workshop 
both  revealed  a  lack  of  full  compliance  with  Regulation  1049/2001:  pressure  towards 
actual compliance would probably increase if the 2001 Code were made binding.  

•  We assume, partly based on past FOI studies (see Box 2), the following times to comply 

with procedural steps, for a total of 14 working hours:111 

  Processing of acknowledgment of receipt: 1 hour 

  Logging the request and case administration: 1 hour 

103 http://www.consilium.europa.eu/en/press/press-releases/2017/05/22/public-access-documents/ 
104 http://eur-lex.europa.eu/resource.html?uri=cellar:05a0236b-dbf9-11e7-a506-

01aa75ed71a1.0021.02/DOC_2&format=PDF 

105 http://www.ema.europa.eu/docs/en_GB/document_library/Annual_report/2018/04/WC500248201.pdf 
106 https://www.esma.europa.eu/sites/default/files/library/esma20-95-590_annual_report_2016.pdf 
107 https://eiopa.europa.eu/Publications/Reports/EIOPA%20Annual%20Report%202016.pdf 
108 

https://echa.europa.eu/documents/10162/13604/adt_2017-key-figures_en.pdf/e35dd59d-0f5a-4393-d86d-
7739a2c09dc5 

109 http://www.statewatch.org/news/2017/aug/eu-frontex-activity-report-2016.pdf 
110 http://www.europarl.europa.eu/RegData/PDF/rapport2016/1127323_1_EN.pdf. 
111 These values are also roughly in line with the estimates by Frontier Economics for the UK (see box 2 above). 

78 

 
                                                             
  Searching/obtaining the information: 2 hours 

  Reading time: 2 hours 

  Consideration time: 1 hour 

  Consultation with colleagues or external bodies: 3 hours 

  Consultation with hierarchy: 3 hours 

  Drafting of response and sign off: 1 hour. 

•  We assume the following hourly cost of EU personnel: 30€/hr for ordinary service (project 
officer); 45€/hr for intermediate service (e.g. Head of Unit); and 60€/hour for higher service 
(e.g. head of unit or higher).112 

•  Given the different levels of complexity of the requests, we assume that the distribution 
follows  the  same  pattern  found  by  Frontier  Economics  (2006)  in  terms  of  activities 
required per type of request (see Figure 18 above). In practice, this means that the activity 
‘logging  the  request  and  case  administration’  will  be  incurred  99%  of  times,  whereas 
‘reading time’ will be required in only 78% of cases. 

This translates into the following calculations. Table 2 assumes an allocation of the different 
tasks across various levels of seniority in the administration, and reaches an estimate of 278 
EUR per FOI request processed.  

Table 2 – Estimated time needed to process a single request for access to document 

Activity 

Time 
(hrs) 

% of 
cases 

Net 

Low 

(30€/hr) 

Intermediate 
(45€/hr) 

High 

(60€/hr) 

Total 
(Euros) 

Processing and delivery 
of notification of 
initiation of procedure 

Logging the request 
and case administration 

Searching/obtaining the 
information 

Reading time 

Consideration time 

Consultation with 
colleagues or external 
bodies 

Consultation with 
hierarchy 

Drafting of response 
and sign off 

1 

1 

2 

2 

1 

3 

3 

1 

100% 

1.00 

100% 

99% 

0.99 

100% 

82% 

1.64 

50% 

50% 

78% 

1.56 

100% 

76% 

0.76 

50% 

50% 

30 

29.7 

61.5 

46.8 

28.5 

25% 

0.75 

50% 

30% 

20% 

30.375 

19% 

0.57 

50% 

30% 

20% 

23.085 

85% 

0.85 

80% 

20% 

28.05 

112 See, for equivalent German values, 

https://www.destatis.de/EN/FactsFigures/Indicators/BureaucracyCosts/Download/ComplianceCostsGuideli
nes.pdf?__blob=publicationFile  

79 

 
 
  
  
  
  
  
  
  
  
  
                                                             
TOTAL 

14 

8.12 

278.01 

These figures have then been attributed to EU institutions and agencies based on the existing 
figures  we  collected  for  major  EU  bodies.  The  resulting  table  summarises  the  yearly 
administrative burden for EU institutions and agencies, which amount to €695,025 per year.  

Table 3 – Estimate of total administrative burden from processing of requests 

Institution 

% of 
requests  

N=10,000 

Total Cost 

BAU (%) 

Administrative 
Burden 

European Commission 

61.2% 

6125 

 € 1,702,748  

75% 

 € 425,69  

European Parliament 

5.0% 

503 

 € 139,818  

75% 

 € 34,96  

Council 

23.6% 

2360 

 € 656,218  

75% 

 € 164,06  

EU Agencies 

10.1% 

1012 

 € 281,316  

75% 

 € 70,33  

TOTAL 

100% 

10,000 

 € 2,780,100  

 € 695,025  

6.2.1.2  Costs for other requirements 

In this section, we provide an example of how to estimate the costs that would arise under 
Option 1 for EU administrations, under the assumption that 102,581 administrative acts are 
adopted  every  year.113  Our  analysis  of  the  content  of  existing  codes  of  administrative 
procedure showed that a number of provisions are not always mandated by the rules in place: 
without  sufficient  empirical  data,  we  assume  that  administrations  that  have  not  adopted 
specific  provisions  related  to  a  given  conduct  are  not  engaging  in  that  conduct.  However, 
under  the  assumption  that  these  administrations  will  have  certain  rules  in  place,  we  have 
attributed a low, but positive Business As Usual (BAU) rate to these agencies: this implies that, 
should  new  rules  of  administrative  procedure  be  introduced,  their  net  impact  on  these 
administrations will take into account the existence of previous administrative conducts that 
overlap with the scope of the new rules.  

113 This is an estimate of the total number of yearly administrative proceedings in the EU (excluding competition 
law and personnel matters). The total figure is in line with the estimate provided in the Summary Report of the 
Public Consultation on a EU law for an open independent and efficient European administration (EPRS 2018). 

80 

 
  
  
  
  
 
  
 
                                                             
Under this assumption, for illustrative purposes, we perform our assessment of the additional 
costs that would be incurred if the authorities that do not comply with a specific requirement 
started complying. This requires the following data points:  

•  The number of proceedings (as explained, they are estimated at 102,581);  

•  The  distribution  of  these  proceedings  across  agencies  (we  use  the  same  as  for  Table  3 

above);  

•  A ‘BAU level’, i.e. the percentage of compliance with the obligations found in our analysis 
of existing codes. We assume 75% BAU for those institutions, agencies or bodies that have 
directly endorsed the 2001 Code or have adopted a code (due to information that points 
to lack of full compliance, which prevents us from assigning 100%); 50% BAU factor for 
institutions,  agencies  or  bodies  that  have  adopted  some  form  of  code  of  good 
administrative behaviour, with a lower number of provisions than the 2001 EU Code; and 
25%  BAU  for  institutions,  agencies  or  bodies  with  no  code  of  good  administrative 
behaviour or  good  administration. This means  that we  adopt  a  75%  BAU  factor  for  the 
European Parliament, a 25% for the Council and a 40% BAU factor for EU agencies.114 

•  Time needed to comply with the obligation: we here further assume the following times 
needed to comply with the regulatory obligations: (i) stating the purpose of the act: 0.5 
hours; indicating available remedies and the competent person: 1 hour.  

•  The  hourly  rate  of  the  person  that  would  comply  with  the  obligation  by  carrying  out 

administrative activities is estimated at 30 EUR. 

The table below shows the result of our calculations, totalling €1,863,538 yearly.  

Table 4 – Estimate of total costs from stating the purpose and indicating available remedies 

Institution 

% of requests  

N=102,581 

BAU (%) 

European 
Commission 

European 
Parliament 

Council 

EU Agencies 

61% 

5% 

24% 

10% 

62780 

5129 

24209 

10463 

75% 

75% 

25% 

40% 

Cost (1.5 hrs 
per act) 

€ 706,270 

€ 57,702 

€ 817,058 

€ 282,508 

TOTAL 

100% 

102,581 

€ 1,863,538 

Compliance with the new obligations may be costlier in the case of granting the right to use 
all  official  languages  of  the  EU.  Information  we  gathered  through  own  analysis,  the  public 
consultation,  and  during  the  workshop  organised  during  the  drafting  of  this  impact 
assessment suggests that some of the EU institutions, agencies and bodies do not offer the 

114   Within EU agencies, the average BAU factor is 39.75%, which we rounded up to 40%. 

81 

 
 
 
  
 
                                                             
possibility of using all official languages. In particular, the Committee of the Regions, EFSA, the 
EDPS, the European Fisheries Control Agency and the EESC appear to accept requests only in 
English or in a limited number of languages. Other administrations accept all EU languages, 
but the form available online is only in English. However, none of the EU bodies that account 
for the bulk of the requests, as discussed above, experiences this problem. 

In order to estimate the cost for these administrations to offer the possibility to be contacted 
in all languages of the European Union we need to estimate the number of expected contacts 
that would occur in a language that is different from the ones currently used. We would need 
to add an estimated number of requests that would be filed in addition to the current ones, 
under the assumption that some requests are not submitted due to the language barrier. The 
EDPS  received  11  requests  in  2017;115  whereas  the  Fisheries  Control  Agency  only  received 
two;116  Accordingly,  there  is  reason  to  believe  that  the  addition  of  this  requirement  to  the 
administrations’  administrative  rules  would  not  imply  significant  costs.  Imagine  that  every 
year  a  total  of  10  new  requests  is  submitted  in  a  language  not  currently  covered  by  these 
agencies: for each request, the need for translation of the correspondence with the requestor 
may require services whose cost would remain below €500 in the most complex cases. Even 
in the least conservative scenario, the cost to the administration would not exceed €5,000 per 
year. 

Finally, in the case of time limits we can assume that administrations would need additional 
resources to comply with more stringent rules, leading to an average reduction in waiting time 
of  10%  for  the  estimated  102,581  requests.  We  adopted,  as  a  conservative  estimate,  that 
administrative  acts  take  on  average  7  hours  to  complete,  which  translates  into  718,067 
person/hours per year. Assuming that the administration would have to work 10% more to 
respect  time  limits,  this  translates  into  an  additional  42  minutes  of  additional  work  per 
administrative  act.  Assessing  these  minutes  are  valued  at  the  minimum  rate  (€30/hr),  this 
translates into €2,154,201.117 

6.2.1.3  Total estimated costs 

All the components of the expected cost of Option 1 that could be quantified are represented 
in Table 5 below, which provide an overall estimate of €4,717,764. 

115 https://edps.europa.eu/sites/edp/files/publication/18-03-15_annual_report_2017_en.pdf 
116 https://www.efca.europa.eu/sites/default/files/atoms/files/Annual%20Report%202017_0.pdf 
117 Administrative acts entail different types of activities such as requests for documents, requests for information, 
acts related to public procurement, complaints filed with the Ombudsman, European Parliament petitions. 
Data is available mostly for some of these categories, and in particular requests for access to documents, for 
which estimates at the international level range from 7 hours (Scotland, UK) to 38 hours (Canada). Since we 
consider these acts to be likely to be costlier than the average administrative act, we decided to adopt, as a 
low-end, conservative estimate, 7 hours as average time needed to complete an administrative act in the EU.  

82 

 
                                                             
Table 5 – Total estimates costs of selected provisions for Option 1 

Type of requirement 

Access to documents 

Stating purpose and indicate remedies 

Right to use any EU official language 

Time limits 

Total yearly costs 

Estimated cost per 10k acts/year 

€ 695,025 

€ 1,863,538 

€ 5,000 

€ 2,154,201 

€ 4,717,764 

6.2.2  Benefits of Option 1  

An earlier report on the added value of a EU Law of Administrative Procedure (Blomeyer and 
Sanz 2012) identified five specific categories of benefits, which fall within the abovementioned 
groups: (i) Enhanced legal security; (ii) Enhanced legal and policy consistency; (iii) Enhanced 
compatibility  between  Member  State  and  EU  law;  (iv)  Reduced  burden  -  administrators, 
lawyers and judges; and (v) Contribution to legal research/best practice exchange. Of these, 
the ‘reduced burden for administrators, lawyers and judges’ is the only one that could possibly 
be subject to quantification, whereas the others are very important but impossible to quantify. 
In  our  opinion,  another  source  of  reduced  burdens  can  be  identified  in  the  form  of  the 
members  of  the  public  that  interact  with  the  EU  administration:  this  is  related  to  other, 
previously identified benefits, such as enhanced legal and policy consistency. As a matter of 
fact, the availability of a uniform set of rules of administrative procedure and the more explicit 
illustration  and  protection  of  citizens’  rights  in  administrative  documents  can  lead  to  a 
simplification  of  procedures  and  a  consequent  reduction  of  administrative  burdens  on  the 
part of the members of the public that interact with the administration.  

it 

is  possible  to 

imagine  a  double  effect  on  enforcement  costs  for 
Furthermore, 
administrations,  in  particular  for  what  concerns  litigation:  on  the  one  hand,  enhanced 
awareness  of  citizens’  rights  and  available  remedies  may  lead  to  an  increased  number  of 
complaints filed to the administration, on the other hand, the foreseen improvements in the 
clarity and comprehensiveness of administrative acts should lead to a reduction in litigation, 
due to reduced uncertainty.  

Below, we  consider  all  these  benefits  and quantify them  wherever  possible. Section  6.1.2.1 
addresses  cost  savings,  whereas  Section  6.1.2.2  deals  with  transparency  and  good 
governance,  which  includes  enhanced  legal  security  and  enhanced  legal  and  policy 
consistency. Section 6.1.2.3 deals with indirect benefits, such as the enhanced compatibility 
between  Member  States  and  EU  law  and  the  benefits  for  legal  research/best  practice 
exchange. 

83 

 
 
 
6.2.2.1  Cost savings 

Just  as  the  option  generates  costs  for  the  administration,  it  is  also  expected  to  generate 
benefits for the public, in terms of:  

•  Reduced transaction costs when dealing with the administration, including lower costs of 
finding  information  on  the  remedies  available,  lower  costs  for  the  identification  of  the 
competent person in the administration, etc.; 

•  Reduced waiting time if time limits were not respected or complied with by EU bodies. 

Quantifying  these  cost  savings  is  far  from  easy.  We  proceed  as  follows.  First,  we  provide  a 
calculation based on requests for access to documents filed by the members of the public (so-
called  ‘FOI  requests’),  to  be  used  as  a  proxy  for  other  administrative  proceedings.  We  then 
focus on proceedings initiated by EU institutions, agencies and bodies.  

For FOI requests, we assume that the procedure for submitting the request will remain similar 
to the current one in many EU bodies; and accordingly the administrative burden on the side 
of the public will not be heavily affected. However, if the FOI process becomes more structured 
and  efficient  there  would  be  a  reduction  in  the  waiting  time  due  to  enhanced  respect  of 
procedural limits by the EU administration. As stated, waiting time can be monetised in terms 
of  reduced  opportunity  cost  for  the  members  of  the  public  involved  (Renda  et  al.  2013; 
Marneffe 2015). If we assume, as we did above, that 10,000 requests are received every year, 
mostly by the European Commission, the Council the Parliament and a few agencies (see Table 
4 above), then it is possible to model an improvement in administrative delays as a reduction 
in the opportunity cost faced by applicants. Without more detailed information we relied on 
one figure, i.e. the fact that 10% of Ombudsman enquiries concern refusals or delays by EU 
bodies  in  releasing  documents  requested  under  the  EU’s  transparency  regulation:118  and 
assume that meeting the time limits will increase the intensity of work by 10% (consistent with 
Section 6.2.1.2 above). This means that the waiting cost for access to documents would be 
reduced in 10% of the cases by an average of 10 days. 

In computing the cost of delays, we discarded methods based on the economic opportunity 
cost  corresponding  to  the  impossibility of  running a  business or fully  exercising  one’s  own 
economic  activity.  These  models  are  normally  used  for  cases  of  delays  in  the  issuance  of 
permits  and  authorisations,  such  as  a  construction  licence or  the  authorisation  to market  a 
new food or a pharmaceutical product. Some of these models use proxies such as GDP per 
capita for citizens (used, for example, in Mexico’s SIMPLIFICA model) or average turnover per 
business day in the case of companies. In our case, we considered these methods to be very 
likely  to  over-estimate  the  opportunity  cost  generated  by  delays  in  the  completion  of 
administrative procedures in EU institutions, agencies or bodies. We have thus assumed that, 
rather than full working time, waiting time is equivalent to commuting time, which is often 
included  in  regulatory  impact  analysis,  especially  in  the  United  States.  Commuting  time  is 
typically  valued  at  half  the  hourly  salary  rate  of  the  individual  commuter  (e.g.  by  the 
Department of Transportation). In our case, if we adopt a hourly rate for citizens and members 
of the public of €30/hour (which means that waiting time is valued at €15/hr) and assume that 

118  https://europa.eu/newsroom/content/ombudsman-launches-%E2%80%98fast-track%E2%80%99-complaint-

procedure-access-documents_en 

84 

 
                                                             
on average two parties will be involved in the delayed procedure,119 this means that a 10-day 
average reduction in waiting time for 10% of the estimated 10,000 requests gives a final result 
of 

(10,000 x 10%) x €15 x two parties x (10 days x 24 hours) = €7,200,000 

We adopt this as our estimate of the benefits from the reduction of delays.  

For other types of administrative proceedings, we estimate possible reductions of administrative 
burdens by looking at those administrative activities that are likely to be most affected by the 
introduction of Option 1. From our analysis in Section 2 above, based on the texts of the codes 
of administrative behaviour and good administration we found, we infer that:  

•  22%  of  existing  codes  mention  the  possibility  to  access  judicial  proceedings  of  the 

possibility to lodge a complaint with the European Ombudsman. 

•  22% indicate a timeline to submit a request for review. 

•  20%  of  codes  mandate  that  the  act  indicates  the  identity  of  the  staff  that  will  handle 

remedies. 

•  25% of codes mandate that proceedings be conducted under the obligation to respect 

reasonable time limits and avoiding undue delays.  

We thus assume these as BAU factors, i.e. the percentage of EU institutions, offices and bodies 
(that have a code) that already comply with these requirements. For simplicity, we adopt an 
average BAU factor value, set at 22%. We further assume, for the purposes of our illustrative 
example, that the absence of this information will increase the cost for the members of the 
public  who  will  have  to  invest  time  and  resources  to  find  out  about  possible  redress  and 
remedies, as well as about the identity of the contact person in the administration. Also, we 
consider that only EU institutions and agencies initiate administrative proceedings towards 
individual members of the public, which narrows down our sample.  

In order to capture the impact of a simplification measure that increases legal certainty for 
individual citizens and businesses, we adopt the CASH table developed for both categories by 
the German Destatis (see below): our assumption is that Option 1 will reduce the complexity 
of administrative activities from high to medium.  

119  Some  procedures  involve  many  members  of  the  public,  whereas  others  involve  only  one  individual.  In  the 
absence of more precise information on the average number of parties involved, we assume the average is 
two.  

85 

 
 
 
 
                                                             
Table 6 – CASH Table – Germany - Citizens 

86 

 
 
 
Table 7 – CASH Table – Germany - Businesses 

This leads us to the following calculations for a yearly representative set of legal provisions. 
We assume that 102,581 administrative acts are adopted; and for those the relevant activities 
on  the  part  of  members  of  the  public  are:  familiarisation  with  the  information  obligation; 

87 

 
 
 
 
collecting  required  information;  assessing  the  required  information  and  data;  filling  in  or 
entering the required data; obtaining information from third parties. We then assume that for 
102,581 administrative procedures (discounted to account for EU bodies that already comply 
with  some  of  the  obligations),  these  activities  will  move  from  high  complexity  to  medium 
complexity as a result of the implementation of Option 1. The cost per hour saved is again set 
at €30. The results are shown in Tables 8 (citizens) and 9 (businesses) below.  

Table 8 – Simulation of simplification for citizens under Option 1 

Medium 
complexity 

High  
Complexity 

Minutes  
Saved 

Familiarisation with the information 
obligation 
Gathering and compiling information 
Processing the required information and data 
Filling in forms 
Sending information to competent 
authorities 
Total minutes saved (for 102,581 acts) 
Total hours saved (for 102,581 acts) 
Value (30€/hr) 

5 

3 
5 
5 

2 

20 

20 
54 
25 

5 

1,200,198 
1,360,224 
3,920,646 
1,600,264 

240,040 
8,321,371 
138,690 
€ 4,160,685 

Table 9 – Simulation of simplification for businesses under Option 1 

Familiarisation with the information obligation 

Gathering and compiling information 
Processing the required information and data 
Filling in forms 
Sending information to competent authorities 
total minutes saved (for 102,581 acts) 
total hours saved (for 102,581 acts) 
value (30€/hr) 

Medium 

High  

complexity  Complexity 

15 
15 
15 
7 
2 

120 
120 
120 
30 
10 

Minutes  

Saved 
 8,401,384  
  8,401,384  
  8,401,384  
  1,840,303  
  640,105  
27684560 
461409 
 € 13,842,280  

In the absence of detailed information about the distribution of administrative acts between 
citizens and businesses, we assume that a Pareto distribution applies, with citizens involved in 
80% of the administrative acts, and businesses accounting for 20%. Under this assumption, 
the total cost savings estimated through this illustration would be equal to €6,097,004. 

All  in  all,  the  quantified  yearly  cost  savings  for  members  of  the  public  would  amount  to 
€7,200,000 + €6,097,004 = €13,297,004.  

88 

 
  
  
  
  
  
  
  
  
 
  
  
  
  
  
  
  
  
 
6.2.2.2  Non-monetisable benefits  

Non-monetisable  benefits  are  the  bulk  of  the  positive  impacts  produced  by  adopting  a 
binding code of good administrative behaviour as in Option 1. These benefits include greater 
accessibility  of  the  EU  administration;  enhanced  transparency  of  the  EU  administration; 
enhanced  legal  certainty;  increased  protection  of  citizens’  rights;  and  greater  trust  in  EU 
institutions. More in detail: 

•  Accessibility.  The  2001  Code  contains  far-reaching  provisions  on  the  right  to  access 
information and access to the file, which can increase the accessibility of EU administration 
for members of the public, and are directly related to the legitimacy of the administration.  

•  Transparency.  The  2001  Code  contains  a  number  of  provisions  that  can  enhance 
transparency of EU bodies in the eyes of the public. The obligation to state the grounds 
for the decisions adopted by the administration (Art. 18 of the current Code) and notify 
the requester in writing (Art. 19); the obligation to clearly indicate appeal possibilities (Art. 
20); the obligation to handle requests for information effectively (Art. 22) and requests for 
access  to  documents  in  line  with  Regulation  1049/2001  (Art.  23);  and  the  obligation  to 
keep adequate records (Art. 24) all have a positive impact on transparency. 

• 

Legal certainty and predictability. In particular, the uniformity achieved by the adoption of 
a binding set of principles and a limited set of obligations will increase legal certainty in 
particular in those institutions, agencies or bodies that have neither adopted an own code, 
nor  endorsed  the  Ombudsman  or  the  Commission  one.  In  particular,  provisions  that 
mandate  stating  the  grounds  for  the  decisions  adopted  by  the  administration  (Art.  18), 
and notifying them in writing (Art. 19); the obligation to avoid processing data for non-
legitimate purposes (Art. 21); the obligation to acknowledge and correct mistakes (Article 
12.3); proportionality obligations (Article 6); the obligation to behave consistently with the 
administrative action of the institution (Article 10); provisions on time limits (Articles 14 
and  17);  and  provisions  on  rights  of  defence  (Art.  16)  all  contribute  positively  to  legal 
certainty.  In  addition,  Option  1  can  improve  legal  and  policy  consistency  across  the  EU 
administration by fostering the consistency of practices and enforcement of legal rules. 
Policy consistency would also improve due to enhanced compatibility between EU and 
Member States law, since, as already reported, many Member States do have a uniform set 
of rules of administrative conduct. This is particularly important if one considers that the 
border between the EU and the Member State level is becoming increasingly blurred, and 
the existence of a whole EU administrative space is more widely acknowledged among 
academics (Harlow et al. 2017, 3). Without Option 1, Member States will continue to be 
‘faced with the task to introduce different administrative law provisions depending on the 
sector whilst Member State administrative law is harmonized’ (Blomeyer and Sanz 2012), 
with EU administrative law trumping Member State administrative law despite the latter 
being  generally  of  better quality.  Better  compatibility  is  expected  to  result in efficiency 
and effectiveness benefits.  

•  Enhanced  protection  of  citizens’  rights.  In  particular,  the  provisions  on  the  indication  of 
appeal  possibilities  (Art.  20);  effective  handling  of  requests  (Art.  22,  23);  correction  of 
mistakes (Art. 12.3); respect for the privacy and the integrity of the individual, including 
personal  data  protection  (Art.  21);  the obligation of proportionality (Art.  6),  consistency 
(Art. 10), impartiality and service-mindedness (Article 12.1); language rights (Art. 13); and 

89 

 
 
rights of defence (Art. 16) all contribute to an enhanced protection of citizens’ rights with 
respect to the status quo.  

• 

Legitimacy of, and trust in, EU bodies. The most important indirect benefits of Option 1 are 
the increased legitimacy of EU bodies in the face of EU citizens, and the overall improved 
economic  environment  due  to  the  improved  quality  of  administration.  Such  quality  is, 
indeed, positively correlated with economic growth (see i.a. the World Bank’s Worldwide 
Governance  Indicators  or  WGI;  the  World  Bank’s  Global  Indicators  of  Regulatory 
Governance or GIRG; and the OECD measuring government indicators). For example, the 
reduction in the delays of the EU administration will provide overall economic benefits. 
For example, Marneffe et al. (2013) regress regulatory delay variables from the World Bank 
Ease  of  Doing  Business  databank  on  economic  growth  for  a  panel  of  184  countries 
between 2004 and 2011; they find a significant impact of delay on growth. For example, a 
decrease  of  overall  regulatory  delay  by  10%  led  to  an  additional  growth  of  0.78%  for 
Belgium.  A  positive  relationship  between  cutting  delay  and  growth  is  therefore 
established. 

•  Efficiency. The impact of Option 1 on efficiency would be positive, as suggested by the fact 
that our quantification of cost savings seems to offset the additional burden imposed on 
administrations  due  to  the  need  to  perform  limited  additional  administrative  activities. 
Benefits  may  also  emerge  since  the  greater  clarity  of  administrative  acts  may  result  in 
lower litigation costs and lower transaction costs (in particular, information costs on the 
side of citizens): as a matter of fact, the more information is provided by the administration 
to  the  public,  the  lower  the  public’s  investment  in  fact-finding.  For  example,  if  the 
competent  office  and  official  and  related  contact  information  are  provided  by  the 
administration, citizens will save time and resources in having to find out by themselves. 
And  the  more  precise  the  information  on  available  redress  mechanisms,  the  lower  the 
chance  of  misallocating  resources  in  litigation.  That  said,  much  depends  on  the  actual 
translation  of  the  2001  Code  into  binding  measures:  the  current  text,  as  explained, 
contains neither binding nor precise (and thus enforceable) measures. As such, the impact 
on efficiency may be more limited than in the case of fully accurate and binding legislation. 

•  Effectiveness. The ability of Option 1 to achieve the intended objectives greatly depends 
on  the  way  in which  the option  is  implemented.  In  principle,  the option  would  at least 
partly  improve  upon  the  status  quo,  since  it  would  introduce  new  obligations  for  EU 
officials,  which  would  strengthen  the  protection  of  the  public’s  right  to  good 
administration  and  openness,  transparency,  uniformity  and  consistency  in  decision-
making,  for  example.  Also  the  general  objective  of  promoting  the  quality  of  EU 
governance and government by ensuring the most efficient and effective functioning of 
EU institutions, bodies, offices and agencies would be served better by Option 1 than by 
the  current  situation,  as  the  availability  of  a  consistent  set  of  rules  of  administrative 
conduct is considered, internationally and by the European Commission, as a key element 
of good governance.  

90 

 
two: 
  Option 
regulatory framework 

the  European  Parliament’s  proposed 

Under  this  option,  the  European  Parliament’s  Proposal  for  a  Regulation  of  The  European 
Parliament  and  of  the  Council  on  the  Administrative  Procedure  of  the  European  Union’s 
institutions,  bodies,  offices  and  agencies  (described  in  Box  1  above)  would  be  adopted.  This 
would  imply  the  introduction  of  specific  new  provisions  compared  to  the  status  quo,  on 
several aspects of administrative procedure.  

The  provisions  to  be  adopted  under  Option  2  would  cover:  the  initiation  of  proceedings, 
including proceedings started at the initiative of the Union’s administration, and proceedings 
started  upon  application  by  a  party;  various  rights  related  to  the  management  of  the 
procedure (various procedural rights, the duty of careful and impartial investigation; the duty 
to cooperate; rules that apply if a case witness or experts are to be heard; rules on inspections, 
on conflicts of interest, on access to the file; the duty to keep records and rules on time limits); 
the  conclusion  of  the  administrative  procedure  (form  of  administrative  acts,  duty  to  state 
reasons, duty to communicate available remedies and the notification of acts); the rectification 
and correction of acts.  

In addition, there would be a new, general obligation for the Commission to publish updated 
online  information  on  the  existing  administrative  procedures  in  an  ad  hoc,  public  and  free 
website, wherever possible and reasonable, with priority given to application procedures. This 
website  would  contain  information  such  as  a  link  to  the  applicable  legislation,  a  brief 
explanation  of  the  main  legal  requirements  and  their  administrative  interpretation,  a 
description of the main procedural steps, the indication of the authority competent to adopt 
the  final  act,  the  indication  of  the  time  limit  for  the  adoption  of  the  act,  the  indication  of 
remedies  available,  a  link  to  standard  forms  that  may  be  used  by  parties  in  their 
communications with the Union's administration within the procedure. 

Table 10 below shows the difference in coverage between Options 1 and 2. The table clarifies 
the different scope of the two options (Option 1 being more focused on the behaviour of the 
official, Option 2 being more focused on procedural rules for the whole EU administration). 
The different scope also leads to slight differences in the coverage of specific behaviours: the 
2001 code contains more explicit references to the behaviour of the official, including his/her 
service-mindedness  and  integrity.  The  European  Parliament’s  proposal  is  far  more  detailed 
and precise, and contains provisions on administrative procedures such as inspections, which 
were  not  covered  by  the  2001  Code.  The  Parliament’s  proposal  is  also  inevitably  more 
prescriptive, in a way that reduces discretion in interpretation: as such it should promote more 
legal certainty and predictability. More generally, the European Parliament’s proposal seems 
to  protect  citizens’  rights  during  all  phases  of  administrative  procedures  more 
comprehensively.  

91 

 
 
 
Table 10 – A comparison of Options 1 and 2 

Issue 

Scope  

2001 Code 

European Parliament’s proposed regulation 

Rules of behaviour, in line with 
public service principles 

Procedural rules which shall govern the administrative 
activities of the Union's administration (Art. 1) 

Ref. to Art. 41 CFR 

Ref. to Art. 41 CFR 

Integrity, respect 
and service-
mindedness 

Be respectful to each other and to 
citizens, as well as polite, service-
minded, helpful, timely, and co-
operative (Article 12.1). 

No specific provision 

Impartiality and 
evidence-based 
decision-making 

Be impartial, open-minded, guided 
by evidence, and willing to hear 
different viewpoints. 

Recital 20: right to good administration requires that 
administrative acts guarantee impartiality, fairness 
and timeliness. 

Recital 26: right to be treated impartially is a corollary 
of the right to good administration and implies staff 
members' duty to avoid conflicts of interest 

Duty of careful and impartial investigation (Art. 9) 
includes careful and impartial investigation, 
consideration of all relevant factors and all necessary 
information. 

Article 10: The parties shall assist the competent 
authority in ascertaining the facts and circumstances 
of the case; and shall be given a reasonable time limit 
to reply to any request of cooperation.  

Art. 10(3). 3. Where the administrative procedure may 
lead to a penalty, the parties shall be reminded of the 
right against self-incrimination. 

Duty to 
cooperate 

No provision 

Privilege against 
self-incrimination 

No provision 

Conflicts of 
interest 

Motivation and 
notification of 
decisions 

Mentioned in the Introduction:  

Recital 26 (see above) 

Article 13. Members of staff shall not take part in 
administrative procedures for which they are 
conflicted; have a duty to communicate conflicts to 
the competent authority 

Parties can request that a staff member be excluded 
from an administrative procedure on the ground of 
conflict of interests, filing a reasoned request. 

Article 19. Administrative acts shall clearly state the 
reasons on which they are based; the relevant facts 
and the way in which the different relevant interests 
have been taken into account. They should contain an 
individual statement of reasons relevant to the 
parties' situation; if impossible due to number of 
persons concerned, a general statement shall be 
sufficient, but upon request an individual statement 
of reasons shall be provided. 

Civil servants should avoid 
financial or other types of conflicts 
of interest, and should promptly 
declare any private interests 
relating to their functions. They 
should take steps to avoid conflicts 
of interest and the appearance of 
such conflicts; and take swift 
action to resolve any conflict that 
arises. 

State the grounds and legal basis 
for the decisions adopted by the 
administration (Art. 18), and notify 
them in writing (Art. 19). 

Acts should contain an individual 
statement of reasons relevant to 
the parties' situation; if impossible 
due to number of persons 
concerned, a general statement 

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European Parliament’s proposed regulation 

shall be sufficient, but upon 
request an individual statement of 
reasons shall be provided. 

Legal basis 

No specific provision 

Rights of defence 

Ensure the respect of the rights of 
defence (Art. 16) 

Indication of 
remedies and 
appeal 
possibilities 

Decisions shall indicate clearly 
appeal possibilities (Art. 20), and in 
particular the nature of the 
remedies, the bodies before which 
they can be exercised, and the 
time limits for exercising them. 

Decisions shall in particular refer to 
the possibility of judicial 
proceedings and complaints to the 
Ombudsman. 

Requests for 
information and 
access to 
documents 

Handle requests for information 
effectively (Art. 22), and requests 
for access to documents in line 
with Regulation 1049/2001 (Art. 
23). 

Respect for 
privacy and 
integrity of 
individuals, 
including data 
protection 

Respect the privacy and the 
integrity of the individual in 
accordance with the provisions of 
EU legislation, and avoid 
processing data for non-legitimate 
purposes (Art. 21). 

Article 27: Administrative acts of general scope 
adopted by the Union's administration shall indicate 
their legal basis and shall clearly state the reasons on 
which they are based. 

Recital 22: The acknowledgment of receipt should 
indicate the necessary information enabling the party 
to exercise his or her rights of defence. 

Article 20: Administrative acts shall clearly state that 
an administrative review is possible. Parties shall have 
the right to request an administrative review against 
administrative acts adversely affecting their rights and 
interests. Administrative acts shall describe the 
procedure to be followed, as well as the name and 
office address of the competent authority or the 
responsible member of staff, and the time limit for 
submitting such request. 

Acts shall clearly refer, where Union law so provides, 
to the possibility of bringing judicial proceedings or 
lodging a complaint with the European Ombudsman. 

Article 15 (Right of access to the file) provides that the 
parties concerned shall be granted full access to the 
file, while respecting confidentiality and professional 
and business secrecy. Any limitation to this right shall 
be duly reasoned. Where no full access to the entire 
file can be granted, the parties shall be given an 
adequate summary of the content of those 
documents. 

Recital 38: The right to protection of personal data 
implies that without prejudice of the legislative acts 
adopted under Article 16 TFEU, data used by the 
Union’s administration should be accurate, up-to-date 
and lawfully recorded.  

Art. 16. Records shall be kept with full respect to the 
right to data protection. 

Acknowledgment 
and correction of 
mistakes 

Be ready to acknowledge and 
correct mistakes (Article 12.3).  

Article 23 (Rectification or withdrawal of 
administrative acts which adversely affect a party).  

Article 24. (Rectification or withdrawal of 
administrative acts which are beneficial to a party) 

Article 25 (Management of corrections of errors, 
rectification and withdrawal) The relevant provisions 
in Chapters III, IV and VI of the proposed Regulation 
apply to the correction of errors, rectification and 
withdrawal of administrative acts. 

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European Parliament’s proposed regulation 

Merit-based 
judgment  

Be merit-based when involved in 
comparative evaluations. 

No provision 

Proportionality 

Ensure that measures taken are 
proportional to the aim pursued; 
and respect the fair balance 
between the interests of private 
persons and the general public 
interest (Article 6). 

Recital 19: Any legal act of Union law has to comply 
with the principle of proportionality. This requires any 
measure of the Union’s administration to be 
appropriate and necessary for meeting the objectives 
legitimately pursued by the measure in question 

Recital 37: Any limitation of the principle of 
transparency and the right of access to documents 
should be narrowly construed to comply with the 
criteria set out in Article 52(1) CFR, and should be 
subject to the principle of proportionality. 

Consistency 

Be consistent in his or her own 
administrative behaviour as well as 
with the administrative action of 
the institution (Article 10). 

Recitals 11-12. Properly structured and consistent 
administrative procedures support both an efficient 
administration and a proper enforcement of the right 
to good administration.  

Language rights 

Ensure that every citizen of the 
Union or any member of the public 
who writes to the institution in one 
of the Treaty languages receives 
an answer in the same language 
(Article 13).  

Article 6(5): initiation of procedure shall be drafted in 
the language of the country where addressees are 
located. 

Article 7(2): applications shall be drafted in one of the 
languages of the treaties. The acknowledgement of 
receipt shall be drafted in the language of the 
application. 

Article 8: parties have the right to use any of the 
languages of the Treaties and to be addressed in the 
language of the Treaties of their choice. 

Acknowledgment 
of receipt 

Ensure that every letter or 
complaint to the institution 
receives an acknowledgement of 
receipt within a period of two 
weeks, indicating the name and 
the telephone number of the 
competent official, as well as the 
service to which he or she belongs 
(Article 14). 

Article 7: Applications shall be acknowledged in 
writing. The acknowledgement of receipt shall be 
drafted in the language of the application and shall 
indicate: (a) reference number and date; (b) the date 
of receipt; (c) a description of the main procedural 
steps; (d) name and contact of responsible member of 
staff; (e) time-limit for the adoption of the 
administrative act and consequences of failure to 
meet the time limit; (f) address of the website (if any).  

In case of errors in the application, the 
acknowledgment of receipt shall indicate a 
reasonable deadline for remedying the error. 

Time limit for 
decisions on 
requests or 
complaints  

Ensure that a decision on every 
request or complaint to the 
institution is taken within a 
reasonable time limit, without 
delay, and in any case no later than 
two months from the date of 
receipt (Art. 17). 

Article 17. Acts shall be adopted and administrative 
procedures shall be concluded within a reasonable 
time limit and without undue delay. The time limit for 
the adoption of an act shall not exceed three months 
from the date of the notification or the 
acknowledgment of receipt.  

If no administrative act can be adopted within the 
relevant time limit, the parties shall be informed with 

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Issue 

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European Parliament’s proposed regulation 

a reasoned statement and shall be provided with an 
estimate of the expected date of adoption. 

If the EU administration does not acknowledge receipt 
of the application within three months, the 
application shall be deemed to be rejected. 

Keep adequate records (Art. 24). 

Article 16: Duty to keep records 

Keeping of 
records 

1. For each file, the Union's administration shall keep 
records of its incoming and outgoing mail, of the 
documents it receives and of the measures it takes. It 
shall establish an index of the files it keeps. 

2. Records shall be kept with full respect to the right to 
data protection. 

Article 12. Detailed provisions on the limits and scope 
of inspections, on the need for a written authorisation 
showing identity and position of the inspector; on the 
need for notice to the party subject to the inspection 
of the date and the indication of the starting time. 
Right for parties to be present during the inspection 
and to express opinions and ask questions. Parties 
present shall be informed of the subject matter and 
purpose of the inspection, the procedure and rules 
governing the inspection and the follow-up measures 
and possible consequences of the inspection. Parties 
have a right to receive a report of the inspection. 
Provisions on cooperation with the competent 
authorities of the Member State in which the 
inspection takes place. 

Article 11. Witnesses and experts may be heard at the 
initiative of the competent authority or proposed by 
the parties. The competent authority shall ensure that 
it chooses experts that are technically competent and 
not affected by a conflict of interest. 

Article 28. Set up an ad hoc website including 
information on applicable legislation, main legal 
requirements and their administrative interpretation, 
main procedural steps, indication of the authority 
competent to adopt the final act, time limits for 
adoption of the act, remedies available, links to 
standard forms that may be used by parties in their 
communications with the Union's administration 
within the procedure. 

Article 29. The Commission shall submit a report on 
the evaluation of the functioning of this Regulation to 
the European Parliament and the Council before (xx 
years after the entry into force). 

Provisions on 
inspections 

No provision 

Witnesses 

No provision 

Online info 

Article 25: The institution shall take 
effective measures to inform the 
public of the rights they enjoy 
under this Code. If possible, it shall 
make the text available in 
electronic form on its website. 

Evaluation and 
reporting 

Article 27 Each institution shall 
review its implementation of the 
Code after two years of operation 
and shall inform the European 
Ombudsman of the results of its 
review. 

95 

 
 
 
 
As discussed, Option 2 can in principle be implemented in two different ways: through the 
introduction  of  a  general  law  of  administrative  procedure,  which  pre-empts  all  special  and 
sectoral procedural rules currently in place, as well as rules enshrined in sectoral legislation; or 
as a lex generalis which does not preclude the possibility of application of a lex specialis where 
circumstances require it. The former case was not retained as a viable policy option as it would 
not leave enough space for needed flexibility in those cases in which it is clearly needed (e.g. 
competition investigations, especially dawn raids). The latter case, which seeks to balance the 
need for a uniform set of rules with the flexibility needed to reflect peculiar circumstances, 
would  in  any  event  require  that  the  sectoral  rules  be  fully  compatible  with  the  general 
regulatory framework. According to the European Commission, Option 2 would require the 
revision of a substantial amount of existing legislation. There is no disputing the claim that 
some existing rules for EU administrative procedure will need to be changed (or at the very 
least  that  a  stock-taking  exercise  of  the  points  of  deviation  would  be  needed).  However, 
simplification would be part of the point, and the costs associated with the adaptation would 
be of a one-off nature (to be set off against the benefits of not having to reinvent the wheel 
each time a new set of administrative activities is introduced).  

In both cases a transition period would be needed, in which the legislator either needs to bring 
specific rules in line with the general act, or needs to take a conscious decision as to which 
specific rules deviate from it for good reason. It is also important to emphasise that the extent 
to which the provisions in a possible general regulation on administrative procedure allow for 
administrative discretion is relevant for the effects that such a regulation will have on existing 
rules. ‘Minimalistic codification’ (with leeway for existing rules to further specify obligations) 
could lessen the need to adapt legislation, but also trigger more litigation (and hence possibly 
undermine legal certainty). A minimalistic codification ‘will hardly solve the type of problems 
in which there is a clash of values, as in the Bavarian Lager case, where a choice had to be made 
between access to information and privacy or data protection – both incidentally, protected 
Charter  rights.  Nor  will it  resolve  the  issue of  ‘composite decision-making’, where  decision-
makers operating in a shared decision-making process are proceeding according to different 
standards of administrative behaviour’ (Harlow & Rawlings 2014, 332-333). 

In what follows, as explained in Section 5 above, we assume that Option 2 will not remove the 
flexibility needed in specific sectors, and would therefore be compatible with the adoption of 
lex  specialis  in  fields  where  administrative  procedure  needs  to  depart  from  the  generally 
applicable  EU  rules.  This  implies  a  minimum  harmonisation  approach,  in  which  a  general 
administrative procedure act is adopted as the minimum standard all institutions, agencies 
and bodies have to meet, and specific rules can only offer ‘greater protection’. As a matter of 
fact, it appears to be the case that many existing rules, especially in the field of competition 
law, already have the required level of protection. 

6.3.1  Cost of compliance 

Compared to Option 1, Option 2 will have slightly higher one-off costs since it foresees the 
setting up of a comprehensive website, which would contain information such as a link to the 
applicable  legislation,  a  brief  explanation  of  the  main  legal  requirements  and  their 
administrative interpretation, a description of the main procedural steps, the indication of the 

96 

 
  
authority competent to adopt the final act, the indication of the time limit for the adoption of 
the  act,  the  indication of remedies  available,  a link to  standard  forms  that  may  be  used  by 
parties in their communications with the Union's administration within the procedure. Option 
2 might also entail slightly higher training costs, due to the more prescriptive and detailed 
nature of the obligations contained in the European Parliament’s proposals. One-off costs thus 
include a number of items, such as the cost for setting up an ad hoc website and filling it with 
content; the time spent for the revision of internal regulations that clash with Option 2; and 
the time spent replacing existing codes and training the competent officials on the content of 
the  new  rules.  None  of  these  costs  appears  to  be  prohibitive,  and  as  such  we  decided  to 
provide a direct estimate based on the cost of an equivalent service procured on the market 
(for  the  ad  hoc  website);  and  on  the  estimated  reasonable  amount  of  time  that  would  be 
needed to complete the other tasks (400 hours to upload necessary content on the website, 
1,500  hours  for  the  revision  of  existing  legislation,  2,000  hours  for  the  upgrade  of  existing 
codes). Table 11 below shows the result, which yields a total one-off cost of €178,750. 

Table 11 – Estimate of total one-off costs from Option 2 

Ordinary 
service 
(15€/hr) 

Intermediate 
service 
(30€/hr) 

Higher 
service 
(45€/hr) 

Total 
(Euros) 

Activity 

Setting up an ad hoc 
website 

Time 
(hours) 

Flat fee 

Content of the website 

400 

100% 

25000 

12000 

Revision of the internal 
regulations and procedures 

1,500 

50% 

30% 

20% 

60750 

Upgrade of existing codes 

2,000 

50% 

30% 

20% 

81000 

TOTAL 

3,900 

178,750 

As far as recurring costs are concerned, there is no reason to expect that the cost of granting 
access to documents will be greater under Option 2. We therefore maintain our estimate of 
€695,025/year. However, the existence of a larger number of information obligations that are 
currently not followed by EU administrations would justify the adoption of a lower BAU factor 
when it comes to other provisions. We then reduce the BAU factors in Table 4 by 25%.  

97 

 
 
 
  
  
  
  
  
  
  
  
 
Table 12 – Estimate of total costs from stating the purpose and indicating available remedies, 
Option 2 

Institution 

% of requests  

N=102,581 

BAU (%) 

European 
Commission 

European 
Parliament 

Council 

EU Agencies 

61.20% 

5.00% 

23.60% 

10.10% 

62780 

5129 

24209 

10463 

50% 

50% 

0 

25% 

TOTAL 

100% 

102,581 

Cost (1.5 hrs 
per act) 

€ 1,412,540 

€ 115,404 

€ 1,089,410 

€ 353,135 

€ 2,970,489 

Also the costs related to the protection of language rights are expected to be slightly higher, 
since the use of all official languages of the EU is mentioned with respect to a higher number 
of  administrative  acts  under  Option  2  compared  to Option  1  (for  example,  the  initiation  of 
proceedings, and the acts produced during inspections, must be drafted in the language of 
the addressees). Given the high level of compliance with this requirement we observed in our 
empirical  analysis  (with  only  the  Committee  of  the  Regions,  EFSA,  the  EDPS,  the  European 
Fisheries Control Agency and the EESC appearing to accept requests only in English or in a 
limited number of languages) there is reason to believe that, in any event, these costs would 
not be much higher, and as such we adopt a high-end estimate of €50,000/year. 

Finally, Option 2 is less stringent regarding time limits (three months as opposed to two, see 
Article 17). At the same time, the European Parliament’s proposal mentions time limits for the 
acknowledgment of receipt, the initiation of the act and the adoption of decisions. We assume 
that the cost estimated for Option 1, based on an expectation of a reduction of 10% in delivery 
time, will be the same under Option 2. We thus confirm our estimate of €2,154,201. 

All the components of the expected cost of Option 1 that could be quantified are represented 
in Table 13 below, which provide an overall estimate of €5,988,879 for the recurrent costs, 
and a one-off cost of €178,750 to be computed only for the first year.  

98 

 
  
  
 
 
 
Table 13 – Total estimates costs of selected provisions for Option 2 

Type of requirement 

Access to documents 

Maintenance of ad hoc website 

Stating purpose and indicate remedies 

Right to use any EU official language 

Time limits 

Total yearly costs (for 102,581 acts) 

- One off costs 

Estimated cost 

€ 794,189 

€ 20,000 

€ 2,970,489 

€ 50,000 

€ 2,154,201 

€ 5,988,879 

€ 178,750 

6.3.1.1  Non-monetised costs and risks: the loss of flexibility 

Apart from the costs that could be monetised, Option 2 could generate possible risks, which 
may translate into negative impacts. The most important of such risks is certainly the loss of 
flexibility, which would emerge if ad hoc rules tailored to the needs of specific administrations 
were eliminated and replaced with generally applicable rules. This concern is apparently also 
shared by the European Commission. The most effective mitigating rule in this context would 
be the adoption of Option 2 as a mandatory, ‘minimum harmonisation’ option, which does 
not prevent individual institutions, agencies, offices, or bodies from adopting more ambitious 
rules; or, in specific cases, from being exempted from specific provisions. The latter case may 
emerge  in  the  case  of  inspections,  for  example  in  the  case  of  dawn  raids  organised  by  DG 
COMP  to  gather  information  about  the  existence  of  possible  cartels.  Dawn  raids,  and  the 
application i.a. of the right to a fair procedure and the right against self-incrimination in their 
context, have been subject to specific litigation over the past few years. But certainly, certain 
provisions included in the European Parliament’s proposal, such as the duty to give notice, 
cannot apply to dawn raids, as they would critically undermine their efficacy as an instrument 
of investigation in antitrust law. 

More generally, there seems to be a great deal of heterogeneity in the way in which authorities 
such as OLAF, the European Commission DG COMP, the ECB and ESMA carry out inspections 
(Luchtman  &  Vervaele  2017).  In  this  specific  area,  also  in  light  of  the  limited  number  of 
administrations involved, there seems to be room for fruitful harmonisation of basic rules of 
operation. Luchtman and Vervaele, in their analysis of OLAF’s powers in comparison with ECB, 
ESMA and DG COMP, argue that ‘particularly for autonomous investigations, it is essential that 
these  take  place  on  the  basis  of  a  uniform  legal  framework  defining  the  powers  of  the 
authorities,  including  the  possible  consequences  in  cases  of  non-cooperation  (through 
imposing  fines,  but  also  via  ensuring  the  assistance  by  national  law  enforcement  officials)’ 
(Luchtman  &  Vervaele  2017,  323.  Also,  the  authors  find  significant  differences  in  the 
authorities’  application  of  rules  related  to  the  safeguards  of  criminal  procedure,  where 
Regulation  883/2013  (on  OLAF’s  investigative  powers)  is  a  unique  case  compared  to  the 

99 

 
 
 
regulations of ECB, ESMA and DG Comp; and the privilege against self-incrimination, where 
differences relate particularly to (the use of compulsory powers to obtain) statements.  

Against this background, there also seems to be room for a partial harmonisation of rules in 
the case of inspections: in some specific cases, however, the introduction of Option 2 would 
have  to  create  exceptions  in  order  to  safeguard  the  powers  and  effectiveness  of  specific 
administrative procedures, in particular for inspections.  

6.3.2  Benefits of Option 2 

Compared to Option 1, Option 2 provides for a higher level of protection of citizens’ rights, a 
stronger  contribution  to  good  governance  and  good  administration,  and  a  greater 
contribution  to  simplification.  The  very  detailed  provisions  included  in  the  European 
Parliament’s proposal only leave some aspects of administrative procedure uncovered (some 
aspects related to silence of the administration, the type of and effects of administrative acts, 
revocation  or  suspension).  Other  than  this,  members  of  the  public  should  enjoy  an  even 
greater  degree  of  simplification  and  in  particular  a  reduction  of  information  costs  and 
enforcement costs compared to Option 1. Below, we look at cost savings, and then at non-
monetisable benefits. 

6.3.2.1  Cost savings 

Following  the  same  methodology  adopted  for  Option  1,  we  assume  that  Option  2  will 
generate even greater reductions in transaction costs and waiting time. Regarding our estimate 
based on access to documents requests, we have assumed no change compared to Option 1, 
and thus we estimate savings at €7,200,000. For other types of administrative proceedings, we 
follow the same assumptions as for Option 1, but assume that the new rules will lead highly 
complex administrative activities to become easy (low complexity). This leads us to different 
values from Tables 8 and 9. Such values are reported, based on the German CASH tables shown 
in section 6.1.2.1 above, in Tables 14 and 15.  

Table 14 – Simulation of simplification for citizens under Option 2 

Familiarisation with the information 
obligation 
Gathering and compiling information 
Processing the required information and data 
Filling in forms 
Sending information to competent 
authorities 
Total minutes saved (for 102,581 acts) 
Total hours saved (for 102,581 acts) 
Value (30€/hr) 

Low 
complexity 

High  
Complexity  Saved 

Minutes 

2 

1 
1 
2 

1 

20 

20 
54 
25 

5 

1440237.24 
1520250.42 
4240698.54 
1840303.14 

320052.72 
9361542 
156026 
€ 4,680,771 

100 

 
  
  
  
  
  
  
  
  
 
Table 15 – Simulation of simplification for businesses under Option 2 

Familiarisation with the information obligation 

Gathering and compiling information 
Processing the required information and data 
Filling in forms 
Sending information to competent authorities 
total minutes saved  
total hours saved  
value (30€/hr) 

Low 

High  

complexity  Complexity 

3 
3 
3 
3 
1 

120 
120 
120 
30 
10 

Minutes  

Saved 
9361542 
9361542 
9361542 
2160356 
720118 
30965101 
516085 
€15,482,550 

Based hypothetically on an 80/20 ratio between citizens and businesses, the total cost savings 
estimated through this illustration would be equal to €6,841,127. 

Finally, for the case of inspections, we can use another set of administrative activities included 
in the German CASH table. We assume that only 2,000 inspections are performed every year, 
given that very few of the EU institutions, agencies and bodies carry out inspections. Also, we 
assume  a  high  BAU  rate  (75%),  since  the  few  EU  bodies  that  carry  out  inspections  (EC  DG 
COMP,  DG  SANTE,  EDPS,  ESMA)  seem  to  have  adopted  rules  in  this  respect,  which  do  not 
deviate substantially from the text of the European Parliament’s proposed rules. The relevant 
activities are: audits by public authorities; the corrections to be made as a result of an audit; 
and  the  procurement  of  additional  information  in  case  of  problems.  Under  the  same 
assumption  (that  activities  that  were  highly  complex  become  less  complex),  we  can 
tentatively estimate the magnitude of savings as in Table 16. 

Table 16 – Reduced burdens from inspections, Option 2 

Low 
complexity  Complexity 

High  

Average BAU  
75% 

Audit by public authorities 

Corrections to be made as a result of the audit 

Procuring additional info in case of problems 

2 

3 

3 

240 

90 

120 

Total minutes saved  

Total hours saved  

value (30€/hr) 

119000 

43500 

58500 

221000 

3683 

€110,500 

All  in  all,  the  quantified  yearly  cost  savings  for  members  of  the  public  would  amount  to 
€7,200,000 + €6,841,127 + 110,500 = €14,151,627. 

101 

 
 
  
  
  
  
  
  
  
  
 
  
  
 
 
 
 
 
 
 
6.3.2.2  Non-monetisable benefits 

In this section, we analyse the non-monetisable benefits of Option 2 with direct reference to 
Option  1.  Here  too,  we  assume  that  non-monetisable  benefits  are  the  bulk  of  the  positive 
impacts produced by the adoption of a law of administrative procedure as in Option 2. These 
benefits include greater accessibility of the EU administration; enhanced transparency of the 
EU  administration;  enhanced  legal  certainty;  increased  protection  of  citizens’  rights;  and 
greater trust in EU institutions, agencies, bodies and offices.  

More in detail: 

•  Accessibility. Option 2 scores better than Option 1 in this respect. As a matter of fact, while 
the  2001  Code  contained  far-reaching  provisions  on  the  right  to  access  information 
(regulated also by Reg. 1049/2001), the European Parliament’s proposal would imply the 
creation of a comprehensive, informative ad hoc website with information on applicable 
legislation,  main  legal  requirements  and  their  administrative  interpretation,  main 
procedural steps, indication of the authority competent to adopt the final act, time limits 
for adoption of the act, remedies available, links to standard forms that may be used by 
parties  in  their  communications  with  the  Union's  administration  within  the  procedure. 
This would substantially increase the accessibility of the EU administration. Finally, several 
other provisions in Option 2 add detail to the corresponding provisions in the 2001 Code, 
as  explained  in  Table  10  above:  in  particular,  Article  19  and  20  provide  a  much  clearer 
definition of the way in which the administration should handle communication with the 
public, including stating the reasons for the adoption of specific administrative decisions, 
and clearly indicating remedies.  

•  Transparency.  Option  2  goes  beyond  the  2001  Code,  for  example  by  providing  that 
administrations  keep  records  together  with  an  index,  which  is  important  for  the 
traceability of information and chains of communication within the administration; and 
also  by  mandating  that  EU  institutions,  agencies  and  bodies  provide  access  to  the  file 
whenever interested parties request it, while respecting strict time limits.  

•  On  legal  certainty  and  predictability,  several  provisions  in  Option  2  would  improve  on 
Option 1. These include provisions on inspections that add predictability, in addition to 
the  duty  to  state  the  grounds  and  legal  basis  for  the  decisions  adopted  by  the 
administration;  the  duty  to  notify  in  writing;  the  obligation  to  respect  data  protection 
rules;  the  more  detailed  and  far-reaching  obligations  to  acknowledge  and  correct 
mistakes; the provisions on time limits and rights of defence. As with Option 1, Option 2 
can also improve legal and policy consistency across the EU administration by fostering the 
consistency of practices and enforcement of legal rules.  

•  Enhanced protection of citizens’ rights. Here too, Option 2 goes further than Option 1 in the 
definition  and  protection  of  the  rights  of  the  public  when  interacting  with  the  EU 
administration,  by  reproposing most of  the  provisions  of  Option  1 on  the  duty  of  care, 
impartiality  and  avoidance  of  conflicts  of  interests,  and  adding  more  detail  and 
enforceable obligations on the indication of appeal possibilities; on the effective handling 
of requests; on the correction of mistakes; on the respect for the privacy and integrity of 
the individual, including personal data protection; language rights; the right to be heard 
and the use of witnesses.  

102 

 
• 

Legitimacy  of,  and  trust  in,  EU  bodies.  By  providing  a  comprehensive  framework  for  the 
protection  of  the  right  to  good  administration,  Option  2  increases  the  openness,  the 
transparency and the efficiency of EU administration. This, over time, can have a positive 
impact on the perceived ‘throughput legitimacy’ of EU institutions, agencies, offices and 
bodies.120  

•  Efficiency. The impact of Option 2 on efficiency would be positive, and greater than that of 
Option 1 as suggested by our quantification of selected costs and benefits in Section 6. 
Benefits would emerge due to the greater clarity of administrative acts, to lower litigation 
costs and lower transaction costs. Benefits will also be maximised by the compatibility of 
Option  2  with  e-government  solutions.  Several  studies  have  been  completed  at  the 
international level on the possible impact, in terms of additional costs, cost savings and 
indirect  benefits,  of  the  adoption  of  widespread  e-government  solutions  across 
administrations. A number of new proposals have been adopted within the framework of 
the Digital Single Market and the European Interoperability Framework, which aim to reap 
the  benefits  of  e-government,  while  minimising  cost.121  At  the  EU  level,  the  transition 
towards  Digital  Services  Infrastructure  or  ‘building  blocks’  in  e-government  is  being 
successfully trialled by DG DIGIT with funding from the Connecting Europe Facility (CEF), 
and  promises  huge  savings  and  efficiency  improvements  across  the  administration,  as 
well as administrative burdens reductions for both the administration and the public.122 
Our  exchange  with  DG  DIGIT during  the workshop organised within  the  context of  the 
present report confirmed that the transition towards building blocks will require an action 
plan that spans the whole EU administration. This action plan must also be seen as part of 
the  implementation  of  the  recent  Ministerial  Declaration  on  e-Government  signed  in 
Tallinn on October 6, 2017, in which the Ministers in charge of e-government policy from 
32  countries  of  the  European  Union  (EU)  and  the  European  Free  Trade  Area  (EFTA) 
unanimously committed to the vision laid out in the EU e-Government Action Plan 2016-
2020 and in the new European Interoperability Framework that public administrations and 
public  institutions  in  the  EU  should  be  open,  efficient  and  inclusive,  and  provide 
borderless, interoperable, personalised, user-friendly, end-to-end digital public services to 
all citizens and businesses – at all levels of public administration.123 This includes, i.a., the 
development  of  more  efficient  and  user-centric  digital  services;  a  call  on  the  EU 
institutions to develop more interoperable, efficient, open and transparent administrative 
procedures to best serve their citizens and interoperate with all levels of government.124 

120 On the notion of throughput legitimacy, see Schmidt (2013). 
121 Already Blomeyer and Sanz (2012) reported that a general law on administrative procedure was found to have 
the potential to motivate administrative innovation e.g. in the area of eGovernment in Germany (VwVfG als 
Impulsgeber fuer E-Government). Looking at their survey feedback on this issue, 59% of survey  respondents 
considered that a general law allows to test/promote innovative administrative procedures. 

122 The CEF building blocks offer basic capabilities that can be used in any European project to facilitate the delivery 
of  digital  public  services  across  borders;  the  aim  of  the  building  blocks  is  thus  to  ensure  interoperability 
between IT systems so that citizens, businesses and administrations can benefit from seamless digital public 
services wherever they may be in Europe. 

123 https://ec.europa.eu/digital-single-market/en/news/ministerial-declaration-egovernment-tallinn-declaration 
124 Id. The Tallinn declaration implies, i.a. that, when interacting with public administrations and using digital public 
services,  citizens  and  businesses  should  expect  i.a.;  to  have  the  option  to  digitally  interact  with  their 
administrations;  that public  administrations  reduce  administrative  burdens by  optimising  and/or  creating 
digital processes and services, and by offering personalised and proactive services; not to be asked to provide 

103 

 
 
                                                             
•  Effectiveness.  The  impact  of  Option  2  on  the  achievement  of  the  intended  general  and 
specific  objectives  would  be  significant,  and  greater  than  in  the  case  of  Option  1.  This 
option would improve upon the status quo, since it would introduce a comprehensive set 
of new rules for EU institutions, agencies and bodies that would strengthen the protection 
of  the  public’s  right  to  good  administration,  in  particular  to  openness,  transparency, 
uniformity  and  consistency  in  decision-making.  At  the  same  time,  the  new  set  of  rules 
would not jeopardise the possibility to introduce flexibility where the specificities of EU 
action require a special set of rules (e.g. in the case of DG COMP’s dawn raids). The new 
rules on inspections, not present in Option 1, would further contribute to the transparency 
and efficiency of the EU administration. The general objective of promoting the quality of 
EU governance and government by ensuring the most efficient and effective functioning 
of EU institutions, bodies, offices and agencies would be met more effectively by Option 2 
compared to both alternatives considered in this report.  

Overall, Option 2 scores better than Option 1 in all impacts we consider for the purposes of 
this  impact  assessment.  This  is  not  surprising  as,  compared  to  Option  1,  the  European 
Parliament’s  proposal  constitutes  a  more  comprehensive  and  enforceable  regulatory 
framework, which was designed to be enforceable and focused on the procedural rules to be 
followed  by  the  administration,  rather  than  on  the  principles  to  be  followed  by  individual 
officials. In this respect, Option 2 is also more in line with Member States’ administrative laws.  

  Summing up: comparing alternative policy options 

Table  17  below  shows  a  comparison  of  the  three  alternative  policy  options  from  the 
standpoint of costs, benefits and overall effectiveness, measured on the extent to which the 
options  can  lead  to  the  achievement  of  the  general  and  specific  objectives  identified  in 
Section 4 above. We adopt a scorecard approach, with scores varying between 0 (lowest) and 
√√√√√ (maximum).125  

As shown in the table: 

•  Option  1  is  expected  to  cause  limited  administrative  burdens  for  EU  institutions,  agencies, 
bodies and offices. In order to assess them, we have focused on a more limited sample of 
requirements than the option would introduce and have tried to quantify their associated 
costs.  Our  estimate  for  these  requirements  (access  to  documents,  stating  purpose  and 
indicating remedies, right to use any EU official language, provisions on time limits) is that 
they cost €4,717,764 yearly. Option 2 might generate slightly higher administrative burdens. 
For  the  same  sample  of  provisions,  we  estimated  administrative  burdens  to  reach 
€5,988,879, and for the first year we also envisaged one-off costs of €178,750. However, 
Option 2 already consists of a text that is designed to be enforceable, whereas in the case 
of Option 1 a time-consuming translation of the 2001 Code into an enforceable set of rules 

the  same  information  to  public  services  more  than  once;  that  public  services  be  fully  handled  online, 
including the provision of any evidence required to obtain a right or fulfil obligations; that the status of service 
delivery can be checked online where relevant; that the handling of personal data respects the general data 
protection regulation and privacy requirements in the EU and national levels; and that redress mechanisms 
and complaint handling will be available (also) online. 

125 On the merits and limits of the scorecard approach, see Renda et al. (2013). 

104 

 
                                                             
would have to be performed.  

•  Options 1 and 2 create significant cost savings for the public. We estimated such costs savings 
by assuming a total number of administrative acts of 102,581, and provided calculations 
for cost savings for both options in order to make them comparable. Our estimates for a 
limited sample of administrative activities led to an estimate for Option 1 of €13,297,004; 
and for Option 2 of €14,151,627. However, we stress that these are only a sub-set of the 
projected cost savings. In particular, Option 2 is expected to save time and information 
costs  for  citizens  and  businesses,  as  well  as  for  the administrations, which  would  avoid 
duplicated efforts every time they introduce a new administrative procedure.  

•  Options  2  scores  better  than  Option  1  concerning  non-monetised  benefits.  Importantly,  in 
order to make Option 1 comparable to Option 2 we had to assume that the provisions 
contained  in  the  2001  Code  would  be  made  enforceable  through  a  regulatory 
intervention.  Even  after  adopting  this  assumption,  Option  2  remains  preferable  in  all 
respects, with the additional advantage of being more compatible with Member States’ 
administrative 
law  frameworks,  as  well  as  more  suitable  for  preparing  the  EU 
administration for the digital transition.  

•  Finally,  we  have  ranked  the  options  according  to  their  ability  to  achieve  the  specific 
impacts  cited  in  our  terms  of  reference:  accessibility,  transparency,  legal  certainty  and 
predictability, efficiency and effectiveness, enhanced protection of citizens’ rights, and the 
legitimacy  of,  and  trust  in,  EU  institutions.  We  then  added  two  additional  dimensions, 
compatibility with Member States’ administrative law (mentioned in previous studies, e.g. 
Blomeyer  and  Sanz  2012);  and  readiness  for  e-government  (which  emerged  as  an 
important element during our research, and the workshop). In all these aspects, Option 2 
deserves the highest score. 

105 

 
 
 
Table 17 – Comparing alternative policy options: a synopsis 

Option 

Option 0 

Option 1 

Option 2 

Costs 

One-off costs for EU bodies 

Admin burdens (EU bodies) 

Benefits 

Cost savings (EU bodies) 

Cost savings (Public) 

Accessibility  

Transparency  

Legal certainty and predictability 

Efficiency and effectiveness  

Enhanced protection of citizens’ rights  

Legitimacy of, and trust in, EU 
institutions  

Compatibility with Member States’ 
administrative law 

Readiness for e-government  

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

√√ 

√√ 

√ 

√√ 

√ 

√ 

√√ 

√√ 

√√ 

√√ 

√ 

√√ 

√√ 

√√ 

√√ 

√ 

√√ 

√√√√ 

√√ 

√√√ 

√√√√ 

√√√√ 

√√√√ 

√√√√ 

√√√ 

√√√√ 

√√√√ 

√√√ 

106 

 
7  Provisions for monitoring and evaluation 
Should Option 2 be selected as the preferred policy option, as our analysis suggests, a detailed 
data gathering and management plan would have to be devised such that monitoring and 
evaluation  can  take  place  effectively  over  time.  The  following  indicators  are  necessary  for 
effective monitoring: 

-  Data on notification of proceedings initiated by the administration, per EU body and per 

subject matter. 

-  Data on number of requests submitted by the public, per EU body and per subject matter 

(i.e. access to documents; requests for clarifications; access to one’s own file).  

-  Data on complaints lodged with the European Ombudsman.  

-  Data on the uptake of e-government tools and standards across EU administrations, to be 

collected by the European Commission.  

-  Data on the cost of processing transactions and requests under the new system. 

-  Data on public perception: these could be collected in the form of an evaluation survey; a 
simpler  rating  system,  sent  to  the  individuals  upon  making  use  of  it;  and  also  through 
more traditional channels (e.g. Eurobarometer).  

These indicators should be sufficient to answer the key questions that the future evaluation 
(typically within five years from the entry into force of the new legislation): are the new rules 
effective?  Are  the  new  rules  efficient?  Are  the  new  rules  providing  added  value?  For  the 
relevance and coherence questions, additional research will be needed, in particular to reflect 
two aspects: (i) whether technology has changed significantly, so that the system should be 
further  changed  or  upgraded;  (ii)  whether  EU  legislation  has  changed,  such  that  a 
reconsideration of the existing legislation is warranted.  

Table 18 below shows the indicators that we consider useful and necessary for the monitoring 
and the evaluation of Option 2.  

107 

 
 
Table 18 – Data collection and management plan for monitoring and evaluation 

Impact 

Indicator 

Costs (EU bodies) 

Cost savings (Public) 

Accessibility  

Transparency  

Legal certainty and predictability 

Efficiency and effectiveness  

Cost of setting up and maintaining the ad hoc website; cost of 
administering complaints for the European Ombudsman; 
administrative burdens inside the administration. 

Data on perception of user-friendliness, accessibility and transparency 
of the EU administration, to be collected through online surveys 
(Eurobarometer) and digital rating systems 

Data on perception of user-friendliness, accessibility and transparency 
of the EU administration, to be collected through online surveys 
(Eurobarometer) and digital rating systems 

Data on perception of user-friendliness, accessibility and transparency 
of the EU administration, to be collected through online surveys 
(Eurobarometer) and digital rating systems 

Data on perception of the predictability of EU administrative action, to 
be collected through online surveys (Eurobarometer) and digital rating 
systems 

Data on notification of proceedings initiated by the administration, per 
EU body and per subject matter.  

Data on number of requests submitted by the public, per EU body and 
per subject matter (i.e. access to documents; requests for clarifications; 
access to one’s own file).  

Data on timeliness of action of the EU administration, to be collected 
internally through records and indexes. 

Enhanced protection of citizens’ rights  

Data on number of proceedings, complaints, decisions and 
investigations, to be cross-analysed with perception surveys 
(Eurobarometer) 

Legitimacy of, and trust in, EU 
institutions  

Perception surveys (Eurobarometer) 

108 

 
 
8  Conclusions 
This impact assessment report provided a comprehensive analysis of the prospective impacts 
of alternative policy options for a more open, efficient and independent EU administration. 
We conclude that the introduction of a set of harmonised rules on administrative procedure 
would  contribute  positively  to  good  governance  in  the  EU  and  lead  to  enhanced  levels  of 
protection, in particular with respect to the right to good administration and to the enhanced 
openness, efficiency and independence of EU institutions, agencies and bodies, in line with 
Article 298 TFEU. The preferred option (Option 2), which corresponds to the proposal tabled 
by  the  European  Parliament  in  2016,  would  also  improve  the  compatibility  of  EU 
administrative  law  with  the  rules  on  administrative  procedure  adopted  by  most  Member 
States. It would also prepare the EU administration to make the most of the upcoming digital 
transformation in the administration. This option could also become the first important step 
to introducing more ambitious options in the future, such as a fully fledged Administrative 
Procedure Act, also covering rulemaking. This option was not fully considered in this report 
because it was not thought to be feasible in the near future; in any case it is subject to the 
adoption of a comprehensive set of rules on administrative procedure.  

109 

 
 
 
References 

•  Alonso  de  León,  Sergio:  ‘Composite  administrative  procedures  in  the  European  Union’, 

Iustel 2017. 

•  Bermann,  George,  ‘A  Restatement  of  European  Administrative  Law:  Problems  and 

Prospects’, 2009.  

•  Bignami, Francesca and David Zaring, Comparative Law and Regulation. Understanding the 
Global Regulatory Process, Research Handbooks in Comparative Law series, Edward Elgar 
2016. 

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113 

 
 
 
 
 
List of annexes 

Annex 1 – Questionnaire used for our survey 

Annex 2 – List of institutions, agencies and bodies surveyed  

Annex 3 – List of questions distributed during the workshop held on 7 
May 2018 

Annex 4 – Minutes of the workshop held on 7 May 2018 

114 

 
 
 
Impact Assessment of 
possible action at EU level 
for an open, efficient and 
independent EU 
administration 

Annexes 

115 

 
 
 
 
 
Annex 1 – Questionnaire used for our survey 

SURVEY ON POSSIBLE OPTIONS FOR AN OPEN, INDEPENDENT AND 
EFFICIENT EUROPEAN UNION ADMINISTRATION 

1. General information 

1.1.  Name of the institution 
What institution are you working for? 
_____________________________________________________________________________
_____ 

1.2.  Role of the respondent in the institution  
Please briefly clarify what is your position in the institution 
_____________________________________________________________________________
_____ 

1.3.  Are you responsible for good administrative conduct in your 

institution? 

Please briefly clarify whether you are the person in charge of ensuring good administrative 
conduct in your institution, and in particular: 
  Accountability 
  Culture of service 
  Ethics 
  Good management of personnel issues, including recruitment 
  Proper use of discretion (including in infringement procedures) 
  Public participation in EU decision-making 
  Respect for fundamental rights 
  Respect for procedural rights, such as, for example the duty to state grounds for a decision 
  Responsiveness 
  Sound financial management 
  Transparency 
  Other 
Please clarify below if needed:  
_____________________________________________________________________________
_____ 

116 

 
 
 
 
 
 
 
 
 
  
 
 
 
 
1.3.1.  How many administrative procedures leading to the adoption of individual decisions 

are initiated by own decision of your Institution every year?  

Please provide an estimate 
_____________________________________________________________________________
_____ 

1.3.2.  How many complaints or requests for review do you receive every year?  
Please provide an estimate 
_____________________________________________________________________________
_____ 

1.3.3.  How many inspections does your administration carry out every year?  
Please provide an estimate 
_____________________________________________________________________________
_____ 

117 

 
 
 
 
 
 
2. Code/set of rules of Good Administrative behaviour in your 

institution 

2.1.  Does your institution have a framework or a set of rules, which 

regulates administrative behaviour? 

  Yes, a Code of good administrative behaviour 
  Yes (other) 
  No (end of questionnaire?) 
If other, please specify below, and answer this questionnaire based on the set of rules your 
administration is following, even if they do not amount to a proper code. 
_____________________________________________________________________________
_____ 

2.2.  When was the Code/set of rules of good administrative behaviour 

adopted? 

Please specify the year(s) of adoption.  
_____________________________________________________________________________
_____ 

2.3.  Does the Code/set of rules make reference to, or is based on, the 

European Code of Good Administrative Behaviour? 

  Yes 
  No 
Please briefly explain if needed 
_____________________________________________________________________________
_____ 

2.4.  Does the Code/set of rules apply to: 
  Legislative procedures  
 
Judicial proceedings  
  Procedures leading to the adoption of non-legislative acts directly based on the Treaties, 

delegated acts or implementing acts.  

  Procedures leading to the adoption of individual decisions 
  Behaviour of the staff when dealing with individual stakeholders 
Please briefly explain if needed 
_____________________________________________________________________________
_____ 

118 

 
 
 
 
 
2.5.  Does the Code/set of rules contain specific provisions on the 
following aspects of good administrative behaviour? 

  Notification of initiation of proceeding 
  Acknowledgment and processing of applications to initiate a proceeding received from a 

party 

  Rights of parties to be given all relevant information related to the procedure in a clear 

and understandable manner 

  Rights of parties to communicate and to complete, where possible and appropriate, all 

procedural formalities at a distance and by electronic means  

  Rights of parties to use any of the languages of the Treaties and to be addressed in the 

language of the Treaties of their choice  

  Rights of parties to be notified of all procedural steps and decisions that may affect them  
  Rights of parties to be represented by a lawyer or some other person of their choice 
  Rights of parties to pay only charges that are reasonable and proportionate to the cost of 

the procedure in question  

  Rights of parties to pay only charges that are reasonable and proportionate to the cost of 

the procedure in question  

  Duty of careful and impartial investigation 
  Duty to cooperate 
  Duties in case witnesses and experts are to be heard 
  Duties and responsibilities when carrying out inspections 
  Conflicts of interest 
  Right to be heard 
  Right of access to the file 
  Duty to keep records 
  Time limits to be respected during administrative procedures 
  Clarity and form of administrative acts 
  Duty to state reasons 
  Remedies 
  Notifications of administrative acts 
  Correction of errors, rectification and withdrawals of administrative acts 
Please briefly explain if needed 
_____________________________________________________________________________
_____ 

119 

 
 
 
 
Is the Code/set of rules available online? 

2.6. 
  Yes 
  No 

Please provide the URL (if unavailable, please provide a copy of the document) 
_____________________________________________________________________________
_____ 

120 

 
 
 
 
 
3. Individual practices 

3.1.  Notification of the decision to initiate a procedure 

3.1.1.  Does your Code/set of rules require your institution to notify the decision to initiate an 

administrative procedure to the parties involved?  

  Yes 
  No 
Please briefly explain if needed 
_____________________________________________________________________________
_____ 

3.1.2.  Does your Code/set of rules require your institution not to make the decision public 

before the notification has taken place?  

  Yes 
  No 

3.1.3.  Does your Code/set of rules require your institution to provide a motivation in case the 

notification is omitted or delayed? 

  Yes 
  No 

Please briefly explain if needed 
_____________________________________________________________________________
_____ 

3.1.4.  Does your Code/set of rules require your institution to indicate in the notification 
  a reference number and the date  
 
 
 
 
 

the subject matter and purpose of the procedure  
the description of the main procedural steps  
the name and contact details of the responsible member of staff  
the competent authority  
the time-limit for the adoption of the administrative act and the consequences of any 
failure to adopt the administrative act within the time-limit  
the remedies available  
the address of a website where the information listed above is publicly available, if such a 
website exists.  

 
 

Please briefly explain if needed 
_____________________________________________________________________________
_____ 

121 

 
 
 
 
 
 
 
 
 
3.1.5.  Does your Code/set of rules require your institution to draft the notification in the 

languages of the Treaties corresponding to the Member States in which the parties are 
located 

  Yes 
  No 
Please briefly explain if needed 
_____________________________________________________________________________
_____ 

3.2.  Procedures initiated by a party 

3.2.1.  Does your Code/set of rules include specific requirements for administrative procedures 

initiated by a party? 

  Yes 
  No 
If yes, please give details 
_____________________________________________________________________________
_____ 

3.2.2.  Does your Code/set of rules require that the acknowledgment of receipt specify: 
  A reference number and the date  
  The date of receipt of the application  
  A description of the main procedural steps  
  The name and contact details of the responsible member of staff  
  The time-limit for the adoption of the administrative act and the consequences of any 

failure to adopt the administrative act within the time-limit  

  The address of the website where information on your code of administrative procedure is 

posted, if such a website exists.  

Please briefly explain if needed 
_____________________________________________________________________________
_____ 

3.2.3.  Does your Code/set of rules require the rejection of an application to be duly 

motivated? 

  Yes 
  No 
If yes, please give details 
_____________________________________________________________________________
_____ 

122 

 
 
 
 
 
 
3.3. 

Initiation of the procedure 

3.3.1.  Does your Code/set of rules require your institution to initiate an administrative 

procedure within a reasonable time after the date of the event that would be the basis 
of the procedure?  

  Yes 
  No 
If yes, please clarify what is to be meant as a reasonable time 
_____________________________________________________________________________
_____ 

3.3.2. 

In practice, how many days normally elapse after the event before a procedure is 
initiated?  

Please explain 
_____________________________________________________________________________
_____ 

3.4.  Management of the procedure 

3.4.1.  Does your Code/set of rules require your institution to give the parties a reasonable 
time-limit to reply to any request of cooperation, taking into account the length and 
complexity of the request and the requirements of the investigation?  

  Yes 
  No 

If yes, please clarify what is to be meant as a reasonable time 
_____________________________________________________________________________
_____ 

3.4.2.  Where the administrative procedure may lead to a penalty, does your Code/set of rules 
require that your institution remind the parties of the right against self-incrimination? 

  Yes 
  No 
Please briefly explain if needed 
_____________________________________________________________________________
_____ 

3.4.3.  Does your Institution carry out inspections? 
  Yes 
  No 

123 

 
 
 
 
 
 
 
 
 
If YES, do inspections have to follow explicit specifications?  

3.4.3.1. 
  Yes 
  No 
Please briefly explain  
_____________________________________________________________________________
_____ 

3.4.3.2.  Does your Code/set of rules mandate that the parties involved be given notice of the 

inspection and information on the starting date?  

  Yes 
  No 

Please briefly explain  
_____________________________________________________________________________
_____ 

3.4.3.3.  Does your Code/set of rules mandate that the parties involved be informed of the 

subject matter and purpose of the inspection?   

  Yes 
  No 
Please briefly explain  
_____________________________________________________________________________
_____ 

3.4.3.4.  Does your Code/set of rules mandate that inspectors draw up a report on the 

inspection and send a copy to the involved parties?  

  Yes 
  No 
Please briefly explain  
_____________________________________________________________________________
_____ 

3.4.3.5.  Does your Code/set of rules mandate that inspectors cooperate with competent 
authorities of the Member State in which the inspection takes place?  

  Yes 
  No 
Please briefly explain  
_____________________________________________________________________________
_____ 

124 

 
 
 
 
 
 
 
3.4.3.6.  Does your Code/set of rules mandate that inspectors take into account relevant 

procedural rules applicable in Member State in which the inspection takes place?  

  Yes 
  No 
Please briefly explain  
_____________________________________________________________________________
_____ 

3.5.  Conflicts of interest 

3.5.1.  Does your Code/set of rules mandate that members of staff abstain from taking part in 
administrative procedures in which they have, directly or indirectly, a personal interest, 
including, in particular, any family or financial interest, such as to impair their 
impartiality? 

  Yes 
  No 

3.5.2.  Does your Code/set of rules provides for the possibility that parties request that a 

member of staff be excluded from taking part in an administrative procedure on the 
ground of conflict of interests? 

  Yes 
  No 

3.6.  Right to access the file 

3.6.1.  When access to the file cannot be granted, does your Code/set of rules mandate that 

the parties receive a summary of the content of the file? 

  Yes 
  No 

3.7.  Duty to keep records 

3.7.1.  Does your Code/set of rules mandate that your administration keep records and 

establishes an index thereof? 

  Yes 
  No 

3.7.2.  Does your Code/set of rules mandate that your administration keep records in full 

compliance with data protection legislation? 

  Yes 

125 

 
 
 
 
 
 
 
 
 
 
  No 

3.8.  Time limits 

3.8.1.  Does your Code/set of rules mandate that administrative proceedings be completed 

within reasonable time limits and without undue delay? 

  Yes 
  No 

3.8.2.  Does your Code/set of rules include an indication of what time limit is considered to be 

reasonable? 

  Yes 
  No 

If yes, please clarify what time limit is indicated 
_____________________________________________________________________________
_____ 

3.8.3.  Does your Code/set of rules mandate that in case administrative acts cannot be 

adopted within the relevant time limits, information is provided to the parties along 
with the motivation for the delay and an estimated timeline for completion? 

  Yes 
  No 
If yes, please explain 
_____________________________________________________________________________
_____ 

3.8.4.  What happens when your administration does not acknowledge receipt of an 

application within the set time limit? 

  The application is considered as approved 
  The application is considered as rejected 
  Other 

Please explain 
_____________________________________________________________________________
_____ 

3.9.  Form and content of acts 

3.9.1.  Does your Code/set of rules mandate that administrative acts be in writing? 
  Yes 

126 

 
 
 
 
 
 
 
 
 
 
  No 

3.9.2.  Does your Code/set of rules mandate that administrative acts be signed by the 

competent authority? 

  Yes 
  No 

3.9.3.  Does your Code/set of rules mandate that administrative acts be drafted in a clear, 

simple and understandable manner? 

  Yes 
  No 

3.9.4.  Does your Code/set of rules mandate that administrative acts clearly state the reasons 

on which they are based? 

  Yes 
  No 

3.9.5.  Does your Code/set of rules mandate that administrative acts clearly indicate their 

legal basis? 

  Yes 
  No 

3.9.6.  Does your Code/set of rules mandate that administrative acts clearly indicate the 

relevant facts? 

  Yes 
  No 

3.9.7.  Does your Code/set of rules mandate that administrative acts clearly indicate how all 

interests involved have been taken into account? 

  Yes 
  No 

3.9.8.  Does your Code/set of rules mandate that administrative acts clearly contain an 

individual statement of reasons relevant to the parties’ situation? 

  Yes 
  No 

3.9.9.  Does your Code/set of rules mandate that administrative acts clearly state that 

remedies (such as administrative review) are available? 

  Yes 
  No 

127 

 
 
 
 
 
 
 
 
 
 
 
If YES, does your Code/set of rules mandate that administrative acts describe the 
procedure to be followed to access remedies? 

3.9.9.1. 

  Yes 
  No 

3.9.9.2.  Does your Code/set of rules mandate that administrative acts indicate the 

responsible member of staff that can handle the request for review? 

  Yes 
  No 

3.9.9.3.  Does your Code/set of rules mandate that administrative acts indicate a time limit 

for submitting the request for review? 

  Yes 
  No 

3.9.9.4.  Does your Code/set of rules mandate that administrative acts mention the 

possibility of bringing judicial proceedings or lodging a complaint with the European 
Ombudsman? 

  Yes 
  No 

3.10.  Correction, rectification and withdrawal of acts 

3.10.1.  Does your Code/set of rules mandate that clerical, arithmetic or similar errors be 

corrected by the competent authority on its own initiative or following a request by the 
party concerned?  

  Yes 
  No 

3.10.1.1. 
  Yes 
  No 

If Yes, are parties to be notified before the correction is made? 

3.10.2.  Does your Code/set of rules specify the conditions under which the competent authority 

shall rectify or withdraw administrative acts?  

  Yes 
  No 

128 

 
 
 
 
 
 
 
 
Annex 2 – List of institutions, agencies and bodies 

surveyed  

1.  ACER 
2.  ARTEMIS 
3.  BBI JU 
4.  BEREC 
5.  CDT 
6.  CEDEFOP 
7.  CEPOL 
8.  CHAFEA 
9.  Clean Sky 
10.  CoE 
11.  CoR 
12.  CPVO 
13.  EACEA 
14.  EASA 
15.  EASME 
16.  EASO 
17.  EBA 
18.  EC SecGen 
19.  ECA 
20.  ECB 
21.  ECDC 
22.  ECDPC 
23.  ECHA 
24.  ECJ 
25.  ECSEL 
26.  EDA 
27.  EDPS 
28.  EEA  
29.  EEAS 
30.  EESC 
31.  EFCA 
32.  EFSA 
33.  EIB 

34.  EIGE 
35.  EIOPA 
36.  EIT 
37.  EMA 
38.  EMCDDA 
39.  EMEA 
40.  EMSA 
41.  ENIAC JU 
42.  ENISA 
43.  EP 
44.  ERCEA 
45.  ESMA 
46.  ETF 
47.  eu-LISA 
48.  EU-OSHA 
49.  EUIPO 
50.  EUISS 
51.  EUROFOUND 
52.  EUROJUST 
53.  EUROPOL 
54.  F4E 
55.  FCH JU 
56.  FRA 
57.  FRONTEX 
58.  GSA 
59.  IMI 2 JU 
60.  INEA 
61.  OLAF 
62.  REA 
63.  Satcen 
64.  SESAR 
65.  SRB 

129 

 
 
 
 
 
 
Impact Assessment of possible action at EU level for an open, efficient and independent EU administration 

Annex 3 – List of questions distributed during the 
workshop held on 7 May 2018 

QUESTION 1 

In your experience, what are the main gaps that need addressing from the 
perspective  of  Article  298  TFEU  and  Article  41  (1)  EU  Charter  of 
Fundamental Rights?  

QUESTION 2 

Why wouldn’t heterogeneity, instead of uniformity, of procedural rules be 
the  solution  to  achieve  the  goal  of  “an  open,  efficient  and  independent 
European administration”?  

QUESTION 3 

Assuming that some degree if fragmentation is inevitable, how should the 
ideal level of fragmentation of procedural rules in the EU administration 
look  alike  and  what  factors  would  you  take  into  account  for  such  an 
evaluation?  

QUESTION 4 

If  partial  uniformity  is  to  be  achieved,  on  which  aspects  could  EU 
administrative rules be made uniform?  

QUESTION 5 

Do  you  recognize  the  preliminary  findings  from  our  research  on  the 
European Ombudsman cases and the results of the public consultation? 

QUESTION 6 

Can you think of any examples of where fragmentation of the regulatory 
framework for EU administrative procedure has been problematic per se? 
And, vice versa, can you think of problems to be expected if this regulatory 
framework were to be made more uniform?  

130 

 
 
 
 
QUESTION 7 

To  what  extent/how  can  we  use  national  experiences  as  a  basis  for 
assessing impacts of European regulation of administrative procedure ex 
ante? 

QUESTION 8 

If  so  what  points  of  difference  need  to  be  taken  into  account?  Which 
experiences from beyond the EU are particularly valuable to look at in your 
opinion (the team has currently focused on The Netherlands and the US) 

[Suggested answer from the literature review: 

-  Mixed administration/composite procedures (even if a regulation would 

only apply to direct administration, this context could still be relevant, e.g. 
because one could argue that there would not be uniformity anyway); 
‘Participation’ more important than in the national context, in relative 
terms? 
Interaction with the administration is a matter for professionals to a larger 
extent than is the case in member states? 

- 

- 

-  The ‘administration’ that the EP proposal would apply to is much more 

diverse than what counts as ‘the administration’ for the purposes of many 
national GALAs] 

QUESTION 9 

Would  a  uniform  code  of  procedural  rules  represent  a  necessary  step  to 
implement EU e-Government Action Plan 2016-2020?  

QUESTION 10 

Would this be possible also with a fragmented body of procedural rules, or 
does it essentially need a streamlined and harmonized set of rules? 

131 

 
Annex 4 – Minutes of the workshop held on 7 May 2018 

Possible actions at EU level for an open, efficient and 
independent European Union administration 

Monday, 7 May 2018, 9:30-15:30 

CEPS Conference Room, 1 Place du Congrès, 1000 Brussels 

On May 7th, CEPS hosted stakeholders from academia, institutions and businesses to 
debate on the state of play of the current EU administration. In December 2017, the 
European Parliament launched a public consultation on the topic, open until March 
2018, whose results helped the Research Team to frame the discussion.  

Prof. Andrea Renda from CEPS presented the preliminary findings and the procedural 
steps followed by the Research Team for the Impact Assessment. Amongst the key 
findings, the most problematic highlighted by EU citizens and organizations were the 
operational incoherence within institutions and the burdens of administrative costs as 
well as long replying times.  

To come up with the problem definition, CEPS researchers contacted most of the EU 
institutions, asking whether they had a code of conduct. Out of 65 EU institutions, 54% 
have no publicly available codes. Even in cases where codes exist, some topics are not 
covered (such as the right to pay reasonable prices) whereas others are more common 
(e.g. the duty to reply in a reasonable time). All the codes examined clearly indicate 
institutions’ obligation to keep records in compliance with data protection rules. In 
general, 76% of respondents to the Parliament survey supported additional measures 
at the EU level, whereas more than 50% would like to set minimum standards. Only 7% 
is against a new, more harmonized code. 

All in all, fragmentation per se is not a problem as long as it does not impact the 
efficiency, openness and transparency of the system. 

Moreover, the Research Team analysed the complaints to European Ombudsman in 
the recent years. Currently, EU Ombudsman initiatives are mainly focused on 
transparency, and the European Commission is the institution where most of the 
problems of maladministration arise. Among the most investigated issues of 

132 

 
 
 
 
 
 
 
 
maladministration, there are matters related to lawfulness, institutions, finance and, 
to a lower extent, competition. 

Evidence gathering session and discussion on the policy options 

The workshop tried to gather more granular information on the administrative 
procedures followed by the EU agencies. Some participants highlighted that usually 
codification efforts are characterized by a very large degree of consensus. However, 
this does not involve that all the topics need to be covered by EU law. Participants 
debated on which aspects of administrative law would be more efficient if a uniform 
standard applied. A common EU code would be helpful for access to documents for all 
the citizens and not only for the users of public services. Administrative rules should be 
more citizen-friendly. 

Participants also stressed that the information process from the administration to the 
citizens should be simplified 

Another relevant point emerged from the discussion: the original understanding was 
that EU administrative law was a sort of second level system complementing the 
national law. This approach is now outdated, as the EU is dealing directly with citizens. 
For instance, public hearings are becoming a leading field in need of administrative 
rules.  

An efficient EU administration would also encompass more integrated procedures, as 
currently common problems are solved with many sets of solutions, as to each policy 
field a variety of procedural rules apply. In this respect, citizens would benefit from 
general rules. 

Citizens awareness of the EU competence is also fundamental. The EU is finally 
becoming closer to people, being able to enrich citizens’ rights. However, there is still a 
lack of knowledge about the EU competences in certain fields. The backlash of this 
unawareness, combined with incoherent rules, is that EU citizens not only ignore their 
rights but also do not feel invited to participate in the political process. 

Other problems faced by complainants regard their right of accessing documents. The 
large majority of institutions do not provide all the information, sometimes the 
address of the applicant is needed (against data protection law), certain documents 
are available only in English. This is a systemic gap between theoretical legal rules and 
practice. Administrative rules are part of a political problem and should be seen as 
such.  

133 

 
 
 
 
 
 
 
 
More problems arise when it comes to delegated and implementing acts, as different 
approaches are followed within DGs and even within different services.  

Citizens represent only one side of the coin. Businesses have also strong interest to 
push for a better working administration. In this respect, trade or competition are 
areas where the EU has strong competencies and they could serve as starting points to 
implement good practices.   

Finally, organization tools are needed to properly enforce the harmonization of 
administrative rules.  

The speaker from DG Digit, brought the example of Digital Building Blocks as enablers 
of secure EU-wide digital interactions. 

From a digital perspective, every policy domain has developed its own digital platform 
independently. The biggest challenge in the past has been replacing paper with 
electronic documents. Only recently the institutions have started working on better 
processes. DG Digit is working to ensure the smooth flow of data among policy areas 
through building blocks. These platforms are allowing the Member States to have 
different standards but at the same time to be connected to each other through 
common IDs. 

Applying e-government solutions would accelerate the transformation process of EU 
administrations and at the same time make the processes more efficient.  

134 

 
 
 
 
 
 
 
 
 
List of attendees 

Organisation/Description 

European Transport Safety Council 

University of Luxembourg and ReNEUAL 

European Public Health Alliance 

Transport Environment 

DG DIGIT - European Commission 

JURI Secretariat - European Parliament 

Ex-Ante Impact Assessment Unit, European 
Parliament Research Service 
Assistant of Member of the European 
Parliament 

Committee of the regions 

MSL Group 

Banco Santander 

JTI 

BBVA 

The Good Lobby 

Tilburg University 

CEPS 

Confederation of Danish Industry 

CEFIC 

ULB 

University of Utrecht 

Individual entrepreneur 

135 

 
 
 
 
 
Q
A
-
0
2
-
1
8
-
8
1
1
-
E
N
N

-

EU  administrative  law  is  highly  fragmented  and  has
never  evolved into  a  consistent  set of  rules  applicable
across  the  EU  administration.  This  fragmentation
impinges  on  the  EU’s  ability  to  consistently  uphold
standards  of  good  governance  and  administration, as
well as to protect citizens’ rights when they interact with
the  administration.  This  impact  assessment  compares
the option of 'doing nothing' with two alternative policy
options: making the 2001 Code of Good Administrative
Behaviour  binding  vs.  adopting 
regulatory
framework  proposed  by  the  European  Parliament  in
2016. The study concludes that adopting the European
Parliament’s  regulatory  framework  would  be  the
preferred  option,  since 
lead  to  clear
advantages  in  terms  of  cost  savings  for  the  public,  as
well  as  the  accessibility,  transparency,  legal  certainty
and predictability as well as the legitimacy of, and trust
in,  EU 
institutions.  This  option  would  also  offer
additional advantages in terms of its compatibility with
Member States’ administrative law and readiness for the
transition towards e-government and e-administration
tools, which promises further efficiency increases in the
EU administration.

it  would 

the 

This is a publication of the Ex-Ante Impact Assessment Unit
EPRS | European Parliamentary Research Service

This document is prepared for, and addressed to, the Members and staff of the European
Parliament as background material to assist them in their parliamentary work. The content of
the document is the sole responsibility of its author(s) and any opinions expressed herein should
not be taken to represent an official position of the Parliament.

PE 621.841
ISBN 978-92-846-3205-3
doi:10.2861/157069
QA-02-18-811-EN-N