What standards of good administration does the ombudsperson apply?
The Ombudsperson refers to 15 standards of good governance. The list of standards and their definition are likely to evolve over time. They will be considered in the light of changes in case law, but above all of developments in society, which are reflected in the complaints addressed to the Ombudsperson.
Correct application of the law
The Administration shall act in accordance with the legislative and regulatory norms of general and abstract scope and in compliance with the fundamental rights of persons. If the rule is not clear, the Administration shall take care to apply it in a sense consistent with the spirit of the law or in the sense usually recognized in case law and legal doctrine. The Administration is also obliged to comply with its own administrative circulars and instructions, provided that they do not contradict the provisions of laws and regulations.
The Administration shall act in accordance with the legislative and regulatory norms of general and abstract scope and in compliance with the fundamental rights of persons. If the rule is not clear, the Administration shall take care to apply it in a sense consistent with the spirit of the law or in the sense usually recognized in case law and legal doctrine. The Administration is also obliged to comply with its own administrative circulars and instructions, provided that they do not contradict the provisions of laws and regulations.
Justification of administrative acts
Every administrative action must be based on acceptable and reasonable ground, de facto and de jure. Citizens must understand the reasons for which they receive a given decision, which means that the decision served to them must be reasoned. This requirement nonetheless extends beyond merely formal motivation to the quality of the motivation. A well reasoned decision is an intelligible decision. Standard or excessively general turns of phrases are therefore insufficient. Concise motivation may suffice if it is clear and appropriate to the citizen's case.
Every administrative action must be based on acceptable and reasonable ground, de facto and de jure. Citizens must understand the reasons for which they receive a given decision, which means that the decision served to them must be reasoned. This requirement nonetheless extends beyond merely formal motivation to the quality of the motivation. A well reasoned decision is an intelligible decision. Standard or excessively general turns of phrases are therefore insufficient. Concise motivation may suffice if it is clear and appropriate to the citizen's case.
Equality
The administration shall pay attention to the observance of equal treatment of citizens and shall not create unacceptable differences between them. The citizens who are in the same situation shall be treated in the same way. The citizens who are in different situations shall receive different treatment. The situation shall be assessed in terms of the measure envisaged. A difference in treatment may be introduced between categories of persons, provided that it is based on an objective criterion and is reasonably justified in view of the objective and consequences of the measure complained of. Equality is not respected if there is no reasonable proportionality between the means applied and the objective pursued.
The administration shall pay attention to the observance of equal treatment of citizens and shall not create unacceptable differences between them. The citizens who are in the same situation shall be treated in the same way. The citizens who are in different situations shall receive different treatment. The situation shall be assessed in terms of the measure envisaged. A difference in treatment may be introduced between categories of persons, provided that it is based on an objective criterion and is reasonably justified in view of the objective and consequences of the measure complained of. Equality is not respected if there is no reasonable proportionality between the means applied and the objective pursued.
Impartiality
The administrative authorities may under no circumstances favour one party at the expense of the other. This impartiality presupposes an objective treatment of the case file and entails an absence of interest - even the appearance of interest - of the officiating civil servant. When the administrative authorities process a case file, they may not be influenced by any form of personal, family or national interest, nor by any external pressure or by religious, political or philosophical convictions. No one from the administrative authorities may be involved in a decision in which he or one of his close relations has -- or may be perceived as having - interests; a civil servant may not be involved in an appeal of a decision if he helped to take that decision. The administrative authorities must avoid having their decision influenced by the fact that it might cause inconvenience for one of the parties.
The administrative authorities may under no circumstances favour one party at the expense of the other. This impartiality presupposes an objective treatment of the case file and entails an absence of interest - even the appearance of interest - of the officiating civil servant. When the administrative authorities process a case file, they may not be influenced by any form of personal, family or national interest, nor by any external pressure or by religious, political or philosophical convictions. No one from the administrative authorities may be involved in a decision in which he or one of his close relations has -- or may be perceived as having - interests; a civil servant may not be involved in an appeal of a decision if he helped to take that decision. The administrative authorities must avoid having their decision influenced by the fact that it might cause inconvenience for one of the parties.
Legal certainty
Legal certainty entails that citizens are placed in a position to know the positive law that is applicable to them. Citizens must be able to assess beforehand the legal consequences of their conduct and actions. They must be able to rely on certain constancy in regulations and administrative practices. To preserve legal certainty, the administrative authorities must endeavour to familiarise the citizen, within a reasonable period, with the rules applicable to him. The principle of legal certainty entails that the citizen may not be expected to take account of rules that are made known late if at all, or with decisions of an individual scope that were not notified to him. Legal certainty entails that the retroactive application of legal and regulatory provisions is prohibited. Legal certainty offers guarantees for equal and impartial treatment, thereby setting limits on the freedom of action of the administrative authorities and doing away with arbitrary decisions.
Legal certainty entails that citizens are placed in a position to know the positive law that is applicable to them. Citizens must be able to assess beforehand the legal consequences of their conduct and actions. They must be able to rely on certain constancy in regulations and administrative practices. To preserve legal certainty, the administrative authorities must endeavour to familiarise the citizen, within a reasonable period, with the rules applicable to him. The principle of legal certainty entails that the citizen may not be expected to take account of rules that are made known late if at all, or with decisions of an individual scope that were not notified to him. Legal certainty entails that the retroactive application of legal and regulatory provisions is prohibited. Legal certainty offers guarantees for equal and impartial treatment, thereby setting limits on the freedom of action of the administrative authorities and doing away with arbitrary decisions.
Legitimate confidence
The administrative authorities honour the legitimate confidence that their constant attitude, promises and previous decisions have aroused in citizens. The expectation aroused must be legitimate. Barring particular exception, legitimate expectation cannot be deduced from the silence of the administrative authorities.
The administrative authorities honour the legitimate confidence that their constant attitude, promises and previous decisions have aroused in citizens. The expectation aroused must be legitimate. Barring particular exception, legitimate expectation cannot be deduced from the silence of the administrative authorities.
Adequacy and proportionality
The administration shall satisfy itself that its decision is appropriate, proportionate and just.
The principle of reasonableness is violated if the administration has used its freedom of judgment in an obviously unreasonable manner. The decision of the administration may be said to be manifestly unreasonable if it turns out to be different from the decision that would have been taken by any other official of equal ordinary prudence and diligence in the same circumstances.
In order to comply with the principle of proportionality, a normally conscientious official shall take care to take the measure that most closely corresponds both to the interests of the citizen and to the public benefit objectives pursued by the administration.
When the application of a rule or administrative practice by the Administration leads to a situation that is unfair to the citizen, the Administration shall do its utmost to remedy this grievance, taking care to maintain equality of treatment and not to exceed its powers.
The administration shall satisfy itself that its decision is appropriate, proportionate and just.
Suitable access
The Administration shall take care to optimize the accessibility of its services, offices and information by striving for appropriate office opening hours according to the needs of the public concerned, accessibility by telephone and the use of different communication channels. It is committed to welcoming citizens in a suitable working environment, limiting waiting times, and improving the comprehensibility of decisions and administrative documents and access to information on laws and regulations. Without intending to be exhaustive, it strives to simplify this information so that it can be understood by as many people as possible. Particular attention should be paid to the accessibility of the offices for persons with reduced mobility.
The Administration shall take care to optimize the accessibility of its services, offices and information by striving for appropriate office opening hours according to the needs of the public concerned, accessibility by telephone and the use of different communication channels. It is committed to welcoming citizens in a suitable working environment, limiting waiting times, and improving the comprehensibility of decisions and administrative documents and access to information on laws and regulations. Without intending to be exhaustive, it strives to simplify this information so that it can be understood by as many people as possible. Particular attention should be paid to the accessibility of the offices for persons with reduced mobility.
Courtesy
In his contacts with citizens, in addition to compliance with the elementary rules of politeness generally acceptable in our society, a civil servant must maintain a professional tone in his speech and attitudes, so as to preserve a harmonious, respectful and humane inter-personal relationship. Where necessary, he provides instruction by explaining the reasons why he may not comply with the citizen's request and tries to direct him or her to the competent department. In any event, he tries to use understandable language, adapted to the situation and characterised by neutrality. If the administrative authorities have made a mistake and have not acted in accordance with the citizen's legitimate expectations, they must restore the citizen's trust and confidence in the administrative authorities by apologising.
In his contacts with citizens, in addition to compliance with the elementary rules of politeness generally acceptable in our society, a civil servant must maintain a professional tone in his speech and attitudes, so as to preserve a harmonious, respectful and humane inter-personal relationship. Where necessary, he provides instruction by explaining the reasons why he may not comply with the citizen's request and tries to direct him or her to the competent department. In any event, he tries to use understandable language, adapted to the situation and characterised by neutrality. If the administrative authorities have made a mistake and have not acted in accordance with the citizen's legitimate expectations, they must restore the citizen's trust and confidence in the administrative authorities by apologising.
Active information
The administrative authorities must act in a transparent manner and inform the public, unsolicited, in as clear, objective and extensive a manner as possible within the limits authorised by law. Active information tallies with the mission of the administrative authorities which consists of making legal and regulatory provisions as well as administrative practices more accessible and intelligible to as wide a public as possible. This information must be correct, complete, unambiguous, efficient and up to date. The administrative authorities must use clear and understandable language and their communication must be effective. They must make sure to use diversified and adequate channels of communication to reach the largest number of citizens concerned.
The administrative authorities must act in a transparent manner and inform the public, unsolicited, in as clear, objective and extensive a manner as possible within the limits authorised by law. Active information tallies with the mission of the administrative authorities which consists of making legal and regulatory provisions as well as administrative practices more accessible and intelligible to as wide a public as possible. This information must be correct, complete, unambiguous, efficient and up to date. The administrative authorities must use clear and understandable language and their communication must be effective. They must make sure to use diversified and adequate channels of communication to reach the largest number of citizens concerned.
Passive information
Apart from the exceptions provided by law, information requested by citizens must be provided to them. A request for information and the answer thereto may be made verbally or in writing. Insofar as authorised by law, the administrative authorities give priority to the means and channel of communication preferred by the citizen.
Apart from the exceptions provided by law, information requested by citizens must be provided to them. A request for information and the answer thereto may be made verbally or in writing. Insofar as authorised by law, the administrative authorities give priority to the means and channel of communication preferred by the citizen.
Conscientious handling
Every administrative authority must proceed and decide conscientiously. This presupposes first and foremost that the administrative authorities obtain sufficient information to decide with knowledge of the facts. They must have all the legal and factual data needed for the decision. In making their decision, the administrative authorities must rely on verifiable facts, taking into account the applicable provisions and all pertinent elements of the case, and discard those which are not. The precautionary principle constitutes an integral part of the conscientious handling requirement.
Every administrative authority must proceed and decide conscientiously. This presupposes first and foremost that the administrative authorities obtain sufficient information to decide with knowledge of the facts. They must have all the legal and factual data needed for the decision. In making their decision, the administrative authorities must rely on verifiable facts, taking into account the applicable provisions and all pertinent elements of the case, and discard those which are not. The precautionary principle constitutes an integral part of the conscientious handling requirement.
Right to be heard
Everyone has the right to have his observations asserted orally or in writing when he has to defend his interests, even if this right is not expressly stipulated in the legislation or if the legislation does not require the administrative authorities to hear the citizen before they take a decision. This right must be assertable at every stage of the decision-making procedure, including, insofar as reasonable, after the decision is taken. This principle is intended to protect the interests of the citizen and the administrative authorities alike, as the former can thereby present his or her case, and the administrative authorities can be certain of taking a decision with full knowledge of the facts.
Everyone has the right to have his observations asserted orally or in writing when he has to defend his interests, even if this right is not expressly stipulated in the legislation or if the legislation does not require the administrative authorities to hear the citizen before they take a decision. This right must be assertable at every stage of the decision-making procedure, including, insofar as reasonable, after the decision is taken. This principle is intended to protect the interests of the citizen and the administrative authorities alike, as the former can thereby present his or her case, and the administrative authorities can be certain of taking a decision with full knowledge of the facts.
Reasonable time limit for complaint handling
Every request must be processed by the administrative authorities within a reasonable period of time. A reasonable period of time is assessed in terms of the concrete situation considered: it will depend on the urgent nature of the request, its complexity, as well as any negative consequences of a late response for the citizen. Consequently, under certain circumstances, the principle of reasonable time requires the administrative authorities to decide within a shorter period than the maximum period provided by law. In the absence of a legally stipulated such period, the "Charter of Good Governance serves as a guideline. If the administrative authorities are not in a position to answer a question within three weeks, they must send an acknowledgement of receipt to the interested party informing him accordingly and proposing a period within which to provide such an answer. The administrative authorities must make efforts to take a decision within four months. For a particularly complex case, this period amounts to eight months.
Every request must be processed by the administrative authorities within a reasonable period of time. A reasonable period of time is assessed in terms of the concrete situation considered: it will depend on the urgent nature of the request, its complexity, as well as any negative consequences of a late response for the citizen. Consequently, under certain circumstances, the principle of reasonable time requires the administrative authorities to decide within a shorter period than the maximum period provided by law. In the absence of a legally stipulated such period, the "Charter of Good Governance serves as a guideline. If the administrative authorities are not in a position to answer a question within three weeks, they must send an acknowledgement of receipt to the interested party informing him accordingly and proposing a period within which to provide such an answer. The administrative authorities must make efforts to take a decision within four months. For a particularly complex case, this period amounts to eight months.
Efficient coordination
Public services must work together efficiently. Within the same public service, communication must be fluid to ensure the best possible exchange of information. The citizen cannot be asked to provide information if the administration itself has it or could easily have the means to obtain it itself. When different administrations must cooperate, effective coordination requires harmonization of procedures and correct and rapid exchange of information. Reciprocal access to databases while respecting privacy rules may be necessary. No department may hide behind the silence of another department to justify its inaction, and each department must make every effort to obtain the cooperation of the department on which it depends for the proper progress of the file.
Public services must work together efficiently. Within the same public service, communication must be fluid to ensure the best possible exchange of information. The citizen cannot be asked to provide information if the administration itself has it or could easily have the means to obtain it itself. When different administrations must cooperate, effective coordination requires harmonization of procedures and correct and rapid exchange of information. Reciprocal access to databases while respecting privacy rules may be necessary. No department may hide behind the silence of another department to justify its inaction, and each department must make every effort to obtain the cooperation of the department on which it depends for the proper progress of the file.