Electronic copy available at: http://ssrn.com/abstract=1593523
479
ELISABETTA LANZA
The right to good administration in the European Union.
Roots, rationes and enforcement in antitrust case-law
SUMMARY: 1. The roots. – 2. The ratio of the right to good administration as fundamental
right. – 3. Good administration and maladministration. – 4. Competition
law: the “cradle” of the European right to good administration.
1. The roots
Through the Article 41 of the Charter of the Fundamental
Rights of the European Union, proclaimed in Nice on December, 7,
2000 (hereinafter “the Charter”), the right to good administration ﬁgured
in an international catalogue of human rights for the ﬁrst time.
This right developed from EC jurisprudence (1
). In fact, at
the beginning of the proceedings involving European Community
administrations, the principle of good administration didn’t exist. In
the frame of trials in the competition ﬁeld the principle of good
administration was considered, on demand of some private parties
to the European Court of Justice, in order to claim for damages
against the European administration (2
). The ECJ had to consider
whether the claimed administration respected some procedural
standards. After a long process (3
), the Court of Justice assumed the
(1
) See S. MANGIAMELI, La Carta dei diritti fondamentali dell’Unione Europea,
in Nuovi studi politici, 2/2002, 32. The author sustains that the rights included in the
Charter weren’t born in that document, but that through it they became more evident.
(2
) C-96/102, 104, 105,108 and 110/82, ECJ sentence, 8 November 1983: NV
IAZ, International Belgium and others vs. Commission; C-64/82, ECJ sentence of 15
march 1984, Tradax Graanhandel BV vs. Commission; C-46/85, sentence of 10 July
1986, Manchester Steel LTD vs. Commission.
(3
) The attention to the duties of European administrations started with the
well known Algera (Dineke Algera, Giacomo Cicconardi, Simone Couturaud, Ignazio Genuardi,
Félicie Steichen vs. Common Assembly of the European Coal and Steel Community,
Joined cases 7/56, 3/57 to 7/57), when the ECJ had to deal with the revocation of
administrative acts, which is not provided for by the Treaty. Hence, the Court, in order
to avoid refusal of justice, found itself oblie to decide this question on its own, on the
grounds of legal principles accepted in legislation, jurisdiction and legal science of the
Member States. See further in J. SCHWARZE, The administrative law of the Community
and the protection of human rights, in Common Market Law Review, 1986, 402.
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ELISABETTA LANZA – The right to good administration in the European Union
concept of good administration as a general principle. In the Explanation
of Article 41 alleged to the Treaty establishing a Constitution
for Europe, the Drafters explained that Article 41 (Article II-101 in
the Treaty) is based on the existence of the Union as subject to the
rule of law, whose characteristics were developed in the case-law
which enshrined, inter alia, good administration as a general principle
of law (4
).
Nevertheless, the ﬁrst step to codiﬁcation (5
) of the concept
of good administration, and its formulation as a right, was made by
the European Ombudsman Jacob Söderman. At his 2000 Public
Hearing before the Convention of the Draft Charter on Fundamental
Rights of the European Union, Söderman, using the Finnish administration
as an example, stressed “that the true test of a good Government
is its aptitude and tendency to produce a good administration”
and the importance of including the right of the citizen to a good
administration among the classic fundamental rights. During the following
European Convention, the need to foster and codify a right
to good administration became increasingly urgent. So, following the
Ombudsman’s proposal, the Charter of Fundamental Rights of the
European Union includes the fundamental right to good administration
in the Chapter dealing with citizens’rights. In time, it will
be valued as a general principle belonging to the constitutional traditions
of the Member States. In fact, the Court of First Instance, in
T-54/99, Judgment of 30.1.2002, max.mobil / Commission, has already
stated that “it must be emphasised at the outset that the diligent and
impartial treatment of a complaint is associated with the right to
sound administration which is one of the general principles that are
observed in a State governed by the rule of law and are common to
the constitutional traditions of the Member States”.
The principle of good administration becomes, in Article 41
of the Charter, the right to good administration, a fundamental
(4
) In Declaration concerning provisions of the Constitution, Final Act of the
Treaty Establishing a Constitution for Europe, Official Journal of the European
Union, C-310, XLVII, 14.12.2004.
(5
) First of all, it’s useful to underline that in the European Union legal system
the role of the case-law and written-law is different than in a model of civil law:
there is no strong distinction between written general principles and case-law general
principles. In fact the case-law of ECJ and the general principles are essential elements
of the acquis communitaire. See M.P. CHITI, Diritto amministrativo europeo,
Milano 2004, 416.
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INTERPRETAZIONI E OPINIONI
right of every person. Hence, Article 41, in referring to “every person”,
goes further than the suggestions of the Ombudsman made in
2000. In fact, it is the only provision in Chapter V which is not conﬁned
to European citizens or residents. It could be adduced that the
drafters chose to refer to “every person” instead of “citizen” for two
reasons. Firstly, the good behaviour of Community administration
should not be dependent on the nationality of a party to the proceedings.
Secondly, the term “citizen” connotes a natural person, rather
than a corporation. As it is mainly legal persons who are subject to
direct Community administration, the scope of Article 41 is better
deﬁned as applying to “every person” in order to avoid possible
ambiguities (6
).
From the subjective point of view, Article 41 concerns the
liability of the institutions and bodies of the Union, and not of the
Member States, even if Article 51 of the Charter, Chapter VII,
General provisions, rules that the provisions of this Charter are
addressed to the institutions and bodies of the Union with due
regard for the principle of subsidiarity and to the Member States,
but only when they are implementing Union law. Therefore, the
right to good administration distinguishes itself for its beneﬁciaries
(“every person” and not only any citizen of the Union) and those
responsibles (institutions and bodies of the EU and not also the
Member States). However, the Charter constitutionalises fundamental
principles of administrative procedure to an extent unknown
to the Constitutions of Member States (7
).
Indeed, the passage from an economic perspective of the
European Union towards a political view relies on the democratic
relationship between administration and citizens. The formation of
the right to good administration was developed by the European
judges and, it is, without any doubt one of the best results they
achieved (8
).
Nevertheless, this passage could be fully obtained through
the binding codiﬁcation of a right able to guarantee the citizens by
uncorrect behaviour of the public European administration.
(6
) K. KANSKA, Towards Administrative Human Rights in the EU. Impact of
the Charter of Fundamental Rights, in European Law Journal, X, 3/2004, 308.
(7
) Ivi, 297.
(8
) See M.P. CHITI, Diritto amministrativo europeo, cit., 423, and R. BIFULCO,
Commento all’art. 41. Diritto ad una buona amministrazione, in L’Europa dei diritti,
edited by R. Bifulco, M. Cartabia, A. Celotto, Bologna 2001, 285.
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ELISABETTA LANZA – The right to good administration in the European Union
Nowadays, the Charter of Nice is not yet become binding for
the States, nor a constitutional catalogue of fundamental rights,
considering the sort of the Treaty establishing a Constitution for
Europe and then, the Treaty of Lisbon, in which it was included.
Thus, just only if the Treaty enters into force, will the European
Institutions and the Member States be legally bound to uphold
them.
2. The ratio of the right to good administration as fundamental
right
The setting out of the right to good administration represents
the establishment of a new fundamental right. It’s the only
right, in Chapter V, to be recognised to “every person” coming into
contact with the Union’s institutions and bodies (9
).
Exactly, Article 41 includes:
– the right of every person to have his or her affairs handled
impartially, fairly and within a reasonable time by the institutions
and bodies of the Union;
– the right of every person to have the Community make good
any damage caused by its institutions or by its servants in
the performance of their duties, in accordance with the general
principles common to the laws of the Member States (10
);
– the right of every person to communicate with the institutions
of the Union in one of the languages of the Treaties;
– the obligation of the administration to give reasons for its
decisions.
The procedural and formal character of the articles of the
Chapter V of the Charter not only presents a new way to defend the
citizens’interests (11
), but also represents the clearest difference of
the citizens’rights in comparison to the other fundamental rights.
This is partly due to the jurisprudential origins of Chapter V provi-
(9
) Overview of the article 41 of the Charter in http://www.europarl.europa.eu.
(10
) Article 41, para. 3, reproduces the same right guaranteed by Article 288
EC, in the case of non-contractual liability.
(11
) See C. MARZUOLI, Carta europea dei diritti fondamentali, “amministrazione”
e soggetti di diritto: dai principi sul potere ai diritti dei soggetti, in Carta europea
e diritti dei privati edited by G. Vettori, Padova 2002, 265.
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INTERPRETAZIONI E OPINIONI
sions. They are procedural fundamental rights aiming to guarantee
the interests of the citizens in their substantial performances.
In the Communication on the Charter the Commission conﬁrmed
that the Charter “enshrin[es] certain new rights which already
exist but have not yet been explicitly protected as fundamental
rights, notwithstanding the values they are intended to protect,
such as the right to good administration” (12
).
The right to good administration is based on the rule of law,
i.e. the principle of legality, and the principle of democracy. The Explanations
to the text of the Charter, prepared by the Praesidium,
conﬁrm this approach by stating: “Article 41 is based on the existence
of a Community subject to the rule of law whose characteristics
were developed in the case-law which enshrined inter alia the
principle of good administration” (13
). Moreover, the approach is conﬁrmed
by Article 6 TEU and by the Preamble of the Charter of Nice.
The innovation of Article 41 of the Charter is that it transforms
some elements of the objective principle of legality into a subjective
right to good administration (14
).
Before the Charter, the concept of good administration was
referred in judgment as a principle, not as a right. Hence, it could
not have formed a separate basis for a claim, despite the fact that
litigants frequently tired to rely on this concept.
In fact, governing the relationships between citizens and
public powers, on one hand, means setting rules for public administrations
to respect and, on the other hand, to establish rights for
“every person”. Thus, the right to good administration is a fundamental
right because it builds the citizen’s rights to expect a certain
standard of behaviours from public powers, a behaviour based on
the rule of law. It differs from “classic” fundamental rights, such as
the human dignity or freedom of thought, conscience and religion,
due to the fact that it defends the interest not only by recognizing
its existence, but in also establishing forms and procedures that
must be respected by the public institutions.
Moreover, the Preamble of the Charter outlines that the
Union is founded, not only on the indivisible, universal values of
(12
) Commission Communication on the Charter of Fundamental Rights of
the European Union, Brussels, COM (2000) 559 final 13 September 2000.
(13
) See Charter of Fundamental Rights of the European Union.
Explanations Relating to the Complete Text of the Charter, Luxembourg 2000, 58.
(14
) K. KANSKA, op. cit., 300.
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ELISABETTA LANZA – The right to good administration in the European Union
human dignity, freedom, equality and solidarity, but also on the
principles of democracy and the rule of law, the grounds of the right
to good administration. Furthermore, Article 8, Title II of the Treaty
of Lisbon (Provisions on democratic principles), states that in all its
activities, the Union shall observe the principle of the equality of its
citizens, who shall receive equal attention from its institutions, bodies,
ofﬁces and agencies. Consequently, the urge to respect the principle
(rectius the right to) of good administration is stressed by the
Union’s duty to treat its citizens equally.
The Charter follows the tendency of according the status of
fundamental rights with procedural rights, by including them with
substantive rights and elevating them to constitutional status (15
).
3. Good administration and maladministration
As Nehl said, generally speaking, “good administration, it
seems, is a deliberately chosen indeterminate legal notion meant to
comprise a set of procedural and substantive – not necessary legally
enforceable – guidelines or norms for administrative decisionmaking.
It is often used to denote a standard of practice of any modern
democratic system committed to the rule of law: serving the
attainment of “administrative justice”, transparency or openness of
decision-making processes, or the improvement of the relationship
between State authorities and citizens. Surely, this very abstract
and somewhat tautological description does not shed much light on
what “good administration” might imply in actual instances. It gives
no information on what particular type of rule ought to be subsumed
under good administration, nor does it enlighten what purpose,
scope of application and legal force (if any) such rules shall
possess” (16
).
On the contrary, Usher grouped the principles of good administration
(17
), as developed by the European Court of Justice, in
(15
) K. KANSKA, op. cit., 310.
(16
) H.P. NEHL, Principles of Administrative Procedure in EC Law, Oxford
1999, 17.
(17
) J.A. USHER, The “Good Administration” of European Community Law, in
Current Legal Problems, 1985, 269 and in General Principles of EC law, London and
New York 1998, 101.
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INTERPRETAZIONI E OPINIONI
administrative good faith (18
), consistency (19
), diligence (20
) and communication
(21
). Nowadays, adding the principle of legitimate expectation
Usher’s criteria are still the basic principles of good administration,
as conﬁrmed by Article 41 of the Charter of Nice and by the
administrative domestic legislation. From the studies of Nehl and
Usher, it can be assumed that the principle of good administration is
a polysense principle, that can have more meanings, as a duty to pursue
the effective and efﬁcient use of the ﬁnancial resources of the
European Community, or as a constraint aiming to respect the development
of the administrative proceeding, or it can even be read as
prohibition of maladministration (22
).
Indeed, the “indeterminate notion with a tautological description”,
indicated by Nehl, raises to a substantive description just only
through the jurisprudencial experience and its following inductive
process (23
).
(18
) For administrative good faith see: C-293/85, Commission vs. Belgium; C-
56/90, Commission vs. United Kingdom; C-8/55, Fédération Charbonnière de Belgique
vs. High Authority; T-33/89, and T-74/89, Blackman vs. European Parliament; C-
155/85, Strack vs. Parliament.
(19
) For consistency see: C-81/72, Commission vs. Council; C-68/86, United
Kingdom vs. Council; C-43/75, Defrenne vs. Sabena; C-188/82,Thyssen; C-188/83, Witte
vs. European Parliament; C-68/86, United Kingdom vs. Council; C-29, 31, 36, 39-47, 50,
51/63, Usines de la Providence vs. High Authority; C-100-103/80, Pioneer vs. Com-
mission.
(20
) For diligence see: C-120/73, Lorenz vs. Germany; C-96-102, 104, 105, 108
and 110/82, IAZ International case; C-179/82, Lucchini; C-61/74, Santopietro vs. Commission;
C-19/69, Richez-Parise; C-103/85, Usinor vs. Commission; C-14/78, Denkavit
vs. Commission; T-73/89, Barbi.
(21
) For communication see: C-49/88, Al-Jubail Fertilizer vs. Commission;
C-316/82 and 40/83, Kohler vs. Court of Auditors; C-111/83, Picciolo v European Parliament;
T-156/89, Mordt; C-322/81, Michelin vs. Commission; C-107/82, Telefunken v
Commission; C-169/73, Continental France vs. Council; C-144/82, Detti vs. Court of
Justice; C-270/82, Estel vs. Commission; C-24/62, Germany vs. Commission.
(22
) G. DELLA CANANEA, L’amministrazione europea, in Trattato di diritto
amministrativo, edited by S. Cassese, Milano 2000, 1587.
(23
) In a recent judgement of the 26 february 2003 (T-344/00, CEVA Santé
Animale vs. Commission), the Court of First Instance stated that the inaction of the
Commission constitutes a clear and serious breach of the principle of sound administration
giving rise, in principle, to liability on the Community’s part. According to
the inductive process characterizing the right to good administration, this is one of
the first sentences in which the European judge extends the liability of the institutions
to the cases of normative inaction, considering it as violation of the good admin-
istration.
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ELISABETTA LANZA – The right to good administration in the European Union
In order to understand the concepts of good administration
and maladministration is necessary, ﬁrst of all, to consider the
development of the notion of maladministration, the pathologic
expression of administrative activity (24
).
The concept of maladmistration is directly linked to the
Ombudsman, who is, pursuant to Article 195 EC, “empowered to
receive complaints from any citizen of the Union or any natural or
legal person residing or having its registered ofﬁce in a Member
State concerning instances of maladministration in the activities of
the Community institutions or bodies”. In fact, since the introduction
of the European Ombudsman, in September 1995, ﬁrst Jacob
Söderman and then P. Nikiforos Diamandouros, worked to develop
the concept of maladministration, starting from the Court of Justice
jurisprudence and the European administrative law principles.
This was hard work. As the ﬁrst Parliamentary Ombudsman
of the United Kingdom stated: “Nobody can deﬁne maladministration
in plain terms” (25
).
The ﬁrst European Ombudsman Annual Report (1995)
explained that there is maladministration if a Community institution
or body fails to act in accordance with the Treaties or the Community
acts that are binding upon it, or if it fails to observe the rules and
principles of law established by the Court of Justice and Court of First
Instance. In the same Annual Report the Ombudsman stressed that
the experience of national ombudsmen shows that it is better not to
attempt a rigid deﬁnition of what may constitute maladministration.
Indeed, the open-ended nature of the term is one of the things that
distinguishes the role of the Ombudsman from that of a judge.
In response to a call from the European Parliament for a
clear deﬁnition of maladministration, in his 1997 Annual Report,
the Ombudsman offered the following deﬁnition: “Maladministration
occurs when a public body fails to act in accordance with a rule
or principle which is binding upon it”. In 1998, the European Parliament
adopted this deﬁnition (26
).
(24
) M.P. CHITI, Il mediatore europeo e la buona amministrazione comunitaria,
in Riv. it. dir. pubbl. com., 2000, 313.
(25
) K.C. WHEARE, Maladministration and Its Remedies, London 1973, 6.
(26
) Report on the Ombudsman’s special reports (Parliament’s Committee on
Petitions) on the Special Report by the European Ombudsman to the European
Parliament following his own-initiative inquiry into public access to documents (C4-
0157/98). Rapporteur: Mrs. Astrid Thors. In www.europarl.europa.eu.
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In 2003 the Ombudsman’s Annual Report stressed that the
concept of maladministration also includes “the lack of respect of
the human rights, the rule of law and the principles of good administration”.
In this way, the European Ombudsman followed the Nordic
Ombudsman model, for whom maladministration and illegality
are not considerate separate ideas (27
).
Nevertheless, the last Annual Report (2007) underlined that
the principles of good administration go further, requiring Community
institutions and bodies not only to respect their legal obligations,
but also to be service-minded and ensure that members of the
public are properly treated and enjoy their rights fully. Thus, while
illegality necessarily implies maladministration, maladministration
does not automatically entail illegality (28
). Findings of maladministration
by the Ombudsman do not therefore automatically imply
that there is illegal behaviour that could be sanctioned by a court.
Moreover, in the 2007 Annual Report, the European Ombudsman
afﬁrmed that the main types of maladministration alleged
were a lack of transparency, including refusal of information (in 28%
of cases), unfairness or abuse of power (18%), unsatisfactory procedures
(13%), avoidable delay (9%), discrimination (8%), negligence
(8%), legal error (4%), and failure to ensure fulﬁlment of obligations,
that is, failure by the European Commission to carry out its role as
“guardian of the Treaty” vis-à-vis the Member States (3%).
The efforts of the European Ombudsman, aiming to deﬁne the
concept of maladministration, showed that maladministration and
good administration are not opposite concepts, but complementary
principles. In fact, it can be inferred by the last Report that the cases
of maladministration also occur when there is no illegality, id est in
which circumstances that cause damages to the citizen, but that
aren’t so serious as to directly prejudice in order to obtain judicial protection
(29
).The concept of maladministration thus extends the defence
(27
) I. HARDEN, Citizenship and Information, in European Public Law, 2001, 169.
(28
) In this sense, Advocate General Sir Gordon Slynn in Tradax case, where
he stated that he did not consider “that there is any generalised principle of law that
what is required by good administration will necessarily amount to a legally enforceable
rule. Legal rules and good administration may overlap (…); the requirements of
the latter may be a factor of elucidation of the former. The two are not necessarily
synonymous. Indeed, sometimes when courts urge that something should be done as
a matter of good administration, they do it because there is no precise legal rule”.
(29
) A. Cariola, referring to the Italian Ombudsman (“difensore civico”),
asserts that the “difensore civico” action not only refers to the interests that don’t
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ELISABETTA LANZA – The right to good administration in the European Union
of the citizen to all the cases of bad behaviour of European administrations,
which could result in potentially big damages. Hence, it could
be given a legal remedy to those breaches that don’t have any legal
remedy and that, nevertheless, give rise to quantiﬁable harm.
4. Competition law: the “cradle” of the European right to good
administration
The strengthening of the principles of good administration is
due to the jurisprudence of Community Courts in four main areas
(competition, anti-dumping, customs and State aid policy implementation)
(30
). The concentration of the jurisprudence in these ﬁelds may
be partly explained by the assumption that the Community Courts
feel less reluctant to proceed to judicial harmonisation of administrative
principles in the frame of exclusive Community process competence
than in the cases of national procedural autonomy (31
).
At ﬁrst, the principle of good administration appeared in
disputes in the competition ﬁeld during the 1980s, as already indicated
above in paragraph n. 1. During these proceedings, the European
judge aimed to call Commission’s attention to the good administrative
practices and to the importance to work for a sound admin-
istration.
In the Tradax judgment (C-64/82, Tradax Graanhandel BV
v Commission, judgment of 15 March 1984), for the ﬁrst time, the
ECJ started to recognize the effective relevance of the principle of
good administration in the European administrative proceedings,
even if it didn’t recognize as a duty of the Commission to give the
price information required.
receive any jurisdictional defense, but also to the category of the de facto interests
and to those interests that receive a slow, inefficient and expansive jurisdictional
defense (in A. CARIOLA, Commento all’art. 8 della legge 8 giugno 1990, n. 142, in Commentario
della Costituzione, art. 128 supplemento legge 8 giugno 1990, n. 142, established
by G. Branca and continued by A. Pizzorusso, Bologna 1996, 126). Mutatis
mutandi, this opinion can be applied also in the area of interests protected by the
European Ombudsman, considering that the European citizens’rights develop, de
facto, through the direct experiences within European bodies.
(30
) G. DELLA CANANEA, op. cit., 1590, underlines that the grounds of right to
access to the documents are based on antitrust and antidumping proceedings law till
1992.
(31
) H.P. NEHL, op. cit., 6.
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Infact, in paragraphs 21 and 22 of the judgement the Court
states: “(…) The court therefore held that the need to protect persons
concerned and the need for proper judicial review would be met
if the commission put at the disposal of the parties the technical
data used by it in ﬁxing the free-at-frontier prices whenever that
decision was challenged before a court having jurisdiction in the
matter. 22. it should however be pointed out that it would be consistent
with good administration for the commission periodically to
publish for the information of the traders concerned the main data
taken into account in ﬁxing cif prices. Such an arrangement for the
supply of periodic information does not however include a duty to
reply to individual requests such as that made by the applicant or
to allow inspection at the Commission’s premises of all the data
which it has assembled”.
During the following years, the European judge refused to
recognize a defence based on the above-mentioned principle against
the Community acts, because it was not admitted by European legal
system. Nevertheless, the ECJ underlined that the principle could
be used in order to invite Community institutions to follow good
administrative practices.
In the 1990s, European Courts revised their own position.
In 1995 the European judge took an important step. In fact,
in Detlef Noelle vs. Council (T-167/94, judgement of 18 September
1995) the Court of First Instance recognized a claim for damages, in
the case of violation of the principle of good administration. The
Court stated: “In so far as the Community institutions did not fail
completely in the duty of care and proper administration which they
owed to the applicant but simply failed properly to appreciate the
extent of their obligations under that principle, the breach of the
principle of care cannot in this case be regarded as a sufﬁciently serious
breach or a manifest and grave breach, as deﬁned in the case-law
of the Court of Justice”. Indeed, even if in Noelle case the applicant
didn’t receive any satisfaction, the CFI recognized juridical autonomy
to the principle of good administration, as a duty of care.
Furthermore, in Technisce Universität München vs. Hauptzollamt
München-Mitte (C-269/90, judgement of 21.11.1991) the
ECJ afﬁrmed: “where the Community institutions have such a
power of appraisal, respect for the rights guaranteed by the Community
legal order in administrative procedures is of even more
fundamental importance. Those guarantees include, in particular,
the duty of the competent institution to examine carefully and
impartially all the relevant aspects of the individual case, the right
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(32
) A. SERIO, Il principio di buona amministrazione nella giurisprudenza
comunitaria, in Riv. it. dir. pubbl. com., 2008, 300.
490
ELISABETTA LANZA – The right to good administration in the European Union
of the person concerned to make his views known and to have an
adequately reasoned decision. Only in this way the Court can verify
whether the factual and legal elements upon which the exercise
of the power of appraisal depends were present”.
In the late 1990s, the European jurisprudence appeared
more articulated and the institutions started and recognized the
importance of the principle of good administration. In the 1999 case,
Limburgse Vinyl Maatschappij NV and others vs. Commission, the
Commission afﬁrmed that the principle of good administration was
a general principle of European Law. Max-mobil Telekommunication
Service vs. Commission (judgement of 30 January 2002, T-54/99)
was the ﬁrst case of indirect jurisprudencial application of the Charter
of Nice. It stated that “it must be emphasised at the outset that
the diligent and impartial treatment of a complaint is associated
with the right to sound administration which is one of the general
principles that are observed in a State governed by the rule of law
and are common to the constitutional traditions of the Member States.
Article 41(1) of the Charter conﬁrms that [e]very person has the
right to have his or her affairs handled impartially, fairly and within
a reasonable time by the institutions and bodies of the Union. It
is appropriate to consider, ﬁrst of all, the nature and scope both of
that right and of the administration’s concomitant obligations in the
speciﬁc context of the application of Community competition law to
an individual case, as called for in this instance by the applicant”.
The European judge, since the ﬁrst judgements dealing with
the good administration, has valued the above-mentioned principle
as a defence right. The development of the principle of good administration
in the frame of the competition ﬁeld is linked to the fact
that, especially in this subject, private citizens claim against the
abuses of the enterprises and against the subsequent inactivity of
the administration.
In spite of the actual destiny of the Treaty of Lisbon and,
consequently, of the binding role of the Charter of Nice, it may certainly
be stated by way of conclusion that the right to good administration
gives to the citizens a kind of indirect and further defence
(32
), underlining the importance to give a compulsory value to
the respect of procedural duties by the European Institutions.
2575 impaginato.qxp:15x23 prova 30-06-2009 18:47 Pagina 490