EUROPEAN WORK GROUP ON TELEMATIC PROCEDURES

Coordinator: Prof. Giovanni Duni

A STUDY OF A POTENTIAL EU DIRECTIVE

 

 

Participants from: IT ES FR MT LUX PT IR AU D

 

  
Why a study on the telematic procedures in the European Union


REFERENCE RULES AND DOCUMENTS

oTreaty of Lisbon


oEuropean charter of fundamental rights


oDirective 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures 


oDecision 2004/387/EC of the European Parliament and of the Council of 21 April 2004 on interoperable delivery of pan-European eGovernment services to public administrations, businesses and citizens (IDABC)


oDirective 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information 


oDirective 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts


oDirective 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market 


oCommission decision
of 16 October 2009
setting out measures facilitating the use of procedures by electronic means through the ‘points of
single contact’ under Directive 2006/123/EC of the European Parliament and of the Council on
services in the internal market 



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ENGLISH TEXT

verified by Cristina Murroni, www.transl-8.com

SEE THE ITALIAN TEXT

 

The results of the study

PDF VERSION

Study of a potential Directive to institute a framework for the telematic administrative procedure and the Public Administrations interface with the citizen through electronic means in the application of EU Law  


Preliminary.

Having regard to Articles  197 and 298 of the Treaty on the Functioning of the European Union;
Having regard to Art. 41 of the European Charter of Fundamental Rights;
Having regard to the IDABC programme and in particular to the European Parliament and Council Decision 2004/387/EC  of 21st April 2004, on the interoperable delivery of pan European e-government services to Public Administrations, and to citizens;
Having regard to the  EIF (European Interoperability Framework) plan, still in progress;
Having regard to the European Parliament and Council Directive 2006/123/EC of 12 December 2006 on services in the internal market;
Having regard to the Commission’s Decision of 16th  October 2009, N. 767,  which establishes measures to facilitate electronic procedures through “points of single contact” as per  Directive 2006/123/EC of the European Parliament and Council on services in the Internal Market.


Whereas

1. A well regulated administrative procedure is a guarantee of good administration, also as far as efficacy and efficiency, by assuring legitimacy, correctness and rapidity of the Act of the public administration, as well as transparency, impartiality and participation to the decision making process. Modernisation of public offices cannot take place without implementation of digital administration, which -  together with organizational change - contributes to the delivery of better quality public services, reduction of waiting times, improving cost efficiency, increasing productivity, transparency, identification of liabilities and democracy of the public power.

2. Electronic administration implies use of information and communication technology in Public Administrations, combined together with organizational change and acquisition of new skills aimed at improving public service, democratic process and strengthening support for public policies.

3. At the present time in history, when most public administrations are setting out radical transformations of their  modus operandi from paper based to telematic and paper less, an EU Directive on the telematic procedure is necessary in order to prevent Member States from defining their own individual solutions and thus creating veritable obstacles to European interoperability and to achieving the objectives of the European Union. It is binding in the implementation of the EU legislation; wherever it is not compulsory, it does provide guidelines for other administrative activities.

4. A growing amount of  European rules need to be implemented by national Public Administrations and this implies the functional compatibility of IT administrative and technological solutions; furthermore, the difficulty of establishing a clear distinction between direct and indirect execution of EU law, together with the diffusion of functions shared between the EU and the national administrations to implement EU law, makes it useful to define a series of administrative principles that are applicable at both national and EU level.  In particular, joint administrative procedures carried out at the EU level  by national and EU administrations  (vertical integration and cooperation) and between  the administrations of different Member States (horizontal integration and cooperation) requires the use of information technology to achieve the  objectives of the European Union in an effective and efficient way.

5. Procedural competences are strictly connected to material or substantial attributions. Since the procedure is indeed the form of the administrative action, and since all administrative action follows procedures that are carried out by institutions by virtue of the competences that are attributed to them, the European Union has the competence for creating rules on the administrative procedure. Furthermore, Art. 298 of the Treaty on the Functioning of the European Union – although referring  strictu sensu to the European administration   — contains in the first paragraph indications on the principles of good administration.

6. Article 41 of the European Charter of Fundamental Rights recognises the right to a good administration and the corresponding duty of good administration; such duty must be extendable to national administrations when implementing EU law. Implementing “EU law” must mean not only the direct implementation of Treaties, regulations, Directives, Decisions, but also achievement of the EU objectives through domestic law.  As a consequence, when there is a connection between national implementation and the domain of Union competences, the principle of good administration, as regulated by Art. 41 of the Charter, and as interpreted by the European Court of Justice, will be applicable to the procedures managed by national administrations, even when in connection with internal rules of the States.

7. The use of Information and Communication Technologies in administrative procedures implementing EU law must be considered as part of the content of the right to good administration. Therefore the identification of a minimum of principles binding national Public Administrations when they implement the European Union law is allowed.  

8. Whenever a Member State is exclusively applying its own domestic law , then it is not bound by the present Directive. In any case the domestic administrative system cannot obstruct but shall contribute towards making the four community freedoms effective (free movement of goods, capitals, services and people) with a front office supported by an efficient back office, mutually complementary.

9.  The aims of the Directive impact only minimally  on the competences of Member States, as the Directive supplies a limited number of indications, necessary to allow telematic management  of the administrative procedure and the interface with the citizen, leaving full autonomy to the individual Member States and domestic Public Administrations regarding substantial competences and the power  of self organisation, as this is compatible with both administrative and technological interoperability among Public Administrations in the European Union. The present Directive assumes technological interoperability, which must be guaranteed also across different operating systems.

10. Some aspects of the use of ICTs in the administrative procedure are already regulated by the European Union: electronic signatures, data protection, interoperability and the use of public sector information.  Furthermore, the regulation on the use of ICTs in one specific sector of Administrative law, Public Tenders, establishes a good model of telematic administrative procedure: electronically transmitted information, telematic communication among the various administrations (national and EU), electronic signature, electronic protocol, electronic notifications, digitalisation of administrative decisions, electronic access to files, time stamping and interoperability.

11. The rules contained in the European Parliament and Council Directive 2006/123/EC of  12 December 2006 regulating services in the internal market, on the topic of establishment of services in the Member States, are particularly relevant, highlighting the objective of simplifying administrative procedures (whereas N. 3 and 43), especially through points of single contact  (whereas Nos. 46 and 48; Art. 6 and 7), use of information technology in the front office: (Art. 8); and administrative cooperation (whereas 105-109; Art. 28 and subsequent);

12. This modernisation process is worth widening since the objectives listed in Directive 2006/123/CE could be extended to the relations with all citizens who need acts from the Public Administration, as a general rule.   The Commission Decision of 16th October 2009, N. 767, further regulates the profiles of the signatures needed for the telematic management of points of single contact.

13. Doctrine suggests that the management of administrative procedures through the telematic one stop shop is the best solution to guarantee efficiency, efficacy, transparency and democracy in Public Administrations.

14.  It seems that further EU regulation is needed, as there is a growing number of cross-cutting Europe-wide services, directed at the citizens of a Member State who work, study, travel, live in another EU member State, such as health services, social services, fiscal services, educational services, population registry; such services require advanced interoperability of homogenous systems and front offices;

15. As the most important administrative documents are produced through administrative procedures involving a plurality of different offices and administrations, in order to implement a digital administration system,  EU rules on electronic documents and electronic signatures (Directive 1999/93/EC; Decision 2009/767/EC)  must be integrated with regulation of the activity needed for their production through telematic administrative activity.

16. Diffusion of shared electronic folders will change administrative procedures from ‘sequential’ to ‘star shaped’ procedures, following Italian (procedimento a stella) and German (Sternverfahren) terminology, with great time savings due to the simultaneous nature of the intervention.

17. The Directive takes into account the existence of a digital divide both among citizens and between Public Administrations and plans to resolve these in Art. 4 and in Art. 6.  The digital divide among citizens can be eliminated by supplying personalised assistance through a traditional point of service, through which a telematic procedure is initiated and information and supports are supplied to the non-technologically equipped citizens. The digital divide between administrations can be avoided through the principle of subsidiarity.

18. By enabling telematic management of the procedures, and  tele-work among offices, implementing digital administration reduces the need for  physical movement of citizen and public  servants; it enables telematic joint service sessions; it reduces road traffic, and by de-localising work, it enables tele-working from home.

19. By increasing telematic administrative activity, the present Directive accelerates dematerialisation and increases the amount of information on line, thus increasing promoting administrative transparency; information is essential for the respect and well good functioning of the four fundamental freedoms of the European community. within this view, this Directive reinforces the content of  European Parliament and Council Directive 2003/98/EC  of 17 November 2003, on the  re-use of public sector information, which regulates the general framework for the conditions  governing the re-use of public sector documents , in order to guarantee fair, proportionate and non-discriminatory conditions, i,  keeping into consideration the link between information and the functioning of the internal market, and between information and the right to know and to participate  in public affairs.  

20. ICTs facilitate access to information, and to this end the regulation of the electronic front office becomes essential. This is necessary in order to design e-government services, so that they be open to users in other Member States and perfectly accessible whether the service is under the responsibility of local, regional or national Public Administrations, or of a European Institution, when the law of the European Union is applied.

21. The present Directive continues along the lines of  European Parliament and Council Decision 2004/387/EC  of 21st April 2004 of the , on the interoperable delivery of pan European e-government services to Public Administrations, and to citizens (IDABC); and makes it operative for the particular profile it regulates; Decision 2004/387/EC attempted to create e-Government services through efficient, effective and interoperable information and communication services among Public Administrations, and through interoperable front and back offices, with the aim of safely exchanging , understanding and processing public sector information throughout Europe. One of the horizontal strategies established by the programme and contained in the European decision is the setting up of a portal to offer pan-European and multi-lingual access to on line information and interactive services for citizens, as well as the creation of single point of access to services.

22. The digital administration is founded upon the electronic office, as its base for outbound operations ( front office; points of single contact; information; services) and its internal activity (back office;  shared electronic folders), without clear borders between its front and back office.

23.  Electronic and telematic services supplied to citizens by national Public Administrations applying the law of the European Union, must be available in a clear, accessible and open way at the electronic office.

24. The constant evolution of hardware, operating systems and software brings to the fore the fundamental issue of readability of electronic documents, both in the immediate and in the course of time: technical specifications must be entrusted to a permanent body, within the EU institutions, which identifies both the specifications and their regular updating. Such body will also supply consulting to  any interested Public Administration.

25. The extension of the Directive’s principles to EU institutions interacting with Member States' administrations will be  defined by regulation.



Normative text


Art. 1
Definitions

1. «European administrative procedure» means any procedure  for the fulfilment and the implementation of European Union Law, also jointly with domestic law.
2. «Citizens» means any natural or legal persons interacting with any Public Administration of a Member State
3. «Electronic office» means the framework for the management of  administrative activity of the national Public administrations trhough the use of ICT. It includes  front  and back office.
4. «Electronic document» means the electronic representation of legally relevant acts,  or data.
5. «Proceeding Administration» means the Public Administration responsible for initiating the procedure, which receives requests from the front-office or which initiates the procedure and coordinates the back office  in the exercise of its competences.
6. «Telematic administrative procedure» means the administrative procedure in which the application, the handling, the intermediate acts and the internal communications of the proceeding Administration , as well as the external communications with other concerned subjects, the adoption of the final order, take place through electronic and telematic means, electronic documents and telematic interactions.
7. «Shared electronic folder» means the shared area where the documents regarding an administrative procedure are stored, which can be  electronically viewed and added to by the concerned subjects.


Art. 2
Scope

1. The purpose of this Directive is to establish the legal framework for the application of Information and Communication Technologies in the European administrative procedures in order to facilitate electronic access to proceeding by citizens and to grant efficacy and efficiency to the exercise of the administrative function.

2. The Directive does not impact on the competences of the individual administrative authorities, nor on the regulation of administrative procedures,  in compliance with the principle of the autonomy of Member States and their domestic Public Administrations, as its scope is limited to the functional aspects of information technology and administration and, in the field of IT, to the minimum essential requirements for functional interoperability of Public Administrations in the European Union.
3. When the administrations of member states implement domestic law exclusively, without connections with the law of the European Union, the Directive does not impart specific obligations, but it establishes guidelines.
4. Member States can adopt more advanced solutions.


Art. 3
Electronic office

1. The Public Administrations of Member States, as they implement the Law of the European Union, shall use preferentially Information and Communication Technologies in the exercise of their functions and the initiation, handling and conclusion of administrative procedures.
2. In particular, Member States shall create electronic offices for the exercise of their competences in application of European Union Law. Where already existing, they shall comply with the obligations included in the present directive.
3. The electronic office shall respect the principles of security, liability, integrity, quality of information, accessibility, technical neutrality and interoperability.
4. On the electronic office are based the telematic front office, the telematic one-stop shop and the shared electronic folder, as regulated by the following articles.


Art. 4
Telematic front office

1. The front office shall contain:
   a) The list of procedures that may be carried out by that Public Administration through electronic means;
   b) The on line application forms;
   c) The alternative option of downloadable forms;
   d) Access to the electronic  reference registry according to rules on privacy;
   e) Access to electronic notifications;
   f) Modalities of access to the shared electronic folder;
   g) An indication stating whether the procedure is regulated by European Union Law and whether it can be activated and implemented through electronic means.
2. Public Administrations respond to electronic applications by sending a receipt with the reference number assigned to the electronic document,  the credentials for access and any other useful indication. Member States can adopt more advanced solutions, such as a receipt containing an electronic copy of the application, guaranteed by the system’s electronic advanced signature and time stamp;
3. The front office supplies all general information necessary to initiate administrative procedures, and , in the management of practical cases, it alerts applicants of any mistake and allows them to modify and correct the application.
4. Procedures initiated by the Administration are communicated to the interested parties through secure electronic systems or through paper-based communications. The communication shall contain instructions for telematic access to the procedure’s data.
5.  As an alternative to telematic access, and in order to ensure universal access, Public Administrations set up a physical point of service attended by a civil servant who initiates the telematic procedure on behalf of the citizens who are not equipped for electronic access, that so request ; such point of service also relates to the applicants in other phases of the procedure.  
6. Moreover, the electronic office shall contain an email address to which the citizens can refer any question, query or suggestion.
7. The proceeding administration is responsible for the front office and  promotes the activities of the back office, according to the article below.
8. A single national portal orientates citizens for the activation  of the procedures by using an intuitive scheme based on life events; until such portal is active, with clear indications, any Public Administration that receives an application in error must alert the citizen and forward the application to the correct concerned administration.
9.  In order to facilitate to citizens the access to the electronic offices where electronic services are provided in application of European Union Law, Member States shall maintain a portal-directory of electronic addresses. Member States shall communicate to the European Commission the addresses of national portals in order to organize a European portal of national addresses.


Art. 5
Telematic point of single contact

1. When a procedure entails the participation of several Public Administrations, the law indicates which administration is responsible (Proceeding Administration). The citizen  shall make  the application and deliver the documents instituting the proceedings to the Proceeding Administration, which will relate with the other Public Administrations concerned.
2. In the absence of explicit instructions, the Administration at which the citizen makes the application in compliance with the law, shall be the responsible administration.
3. The point of single contact can be set up not only by administrative authorities, but also  by Chambers of Commerce and Professional Associations and Institutions or private bodies to which Member States  have entrusted this function.


Art. 6
Responsibility of technical management and responsibility of administrative management

1. The technical structures that manage telematic procedures are set up and managed by proceeding administrations, insofar as their size and scope allows them to achieve full functionality.
2. Whenever an administrative structure is not able to set up the technical requirements for telematic management of the procedures, the greater territorial administration shall provide its needs, by supplying the proceeding administration with a service that enables it to exercise its substantial competences as entrusted by the Law.  Such technical support does not entail any substitution of the substantial administrative competences for the benefiting body.  Other solutions may be adopted in compliance with the Constitutions of the Member States.
3. The European Commission shall give technical support when requested by Member States.


Art. 7
Electronic documents of each administration participating to the procedure

1. Each Public Administration that is called to express its will to the citizen, or to another Public Administration, shall produce an electronic document through an internal procedure organised in full autonomy.
2. The citizens concerned can access the telematic procedure of a single Public Administration.
3.   The documents transmitted to the point of single contact through electronic means shall possess the requirements on electronic signatures indicated by Decision 2009/767/EC.
4. The final electronic document, concluding the activity competing to a single Public Administration, shall possess the technical requirements for readability listed under Art.9.
5. Electronic copies of  paper documents and of electronic documents archived without advanced signature and time stamp shall be valid when duly electronically signed, in compliance with Art. 5, paragraph 1 of Directive 1999/93/EC.


Art. 8
Shared Electronic Folder

1. Each proceeding Administration creates a shared electronic folder for each proceeding upon which it has responsibility.  
2. The electronic folder is the operative area at the disposal of the Public Administrations involved in the procedure, and the citizens involved shall be able to access it after electronic identification.
3. Public Administrations shall guarantee storage of the electronic applications and documentation in general, so as to guarantee their date marking, non-modifiability and privacy.
4. The shared electronic folder is shared among all offices and Public Administrations involved in the telematic procedure. The data therein shall be available for other means with the consensus of the interested parties, or according to the rules of the law.
5. The shared electronic folder shall contain
a) Citizens’ applications and documents;
b) The document  giving initiation to the procedure ex officio ;
c) The reference numbers of any incoming and outgoing documents and of any modification thereof ;
d) The reference numbers of any documents transmitted internally to  offices or outgoing to other Public Administrations and associated replies;
e) Data on any relevant internal activity of the Public Administration;
f) Decisions and comments of the external Public Administrations that participate to the procedure;
g) Any other data regarding any activity required by law for the specific procedure;
h) The final order act or the notation that granting or rejection by failure to reply within the stipulated time limit has taken place.
6. The progress report on the procedure can be obtained from the shared electronic folder after due electronic identification.


Art. 9
Technical readability of the documents in compliance with the IDABAC programme and the European Interoperability Framework plan

1. In the administrative procedure, National Public Administrations comply with the rules, the standards and recommendations contained in the European Interoperability Framework, which indicates the criteria and recommendations on information safety, storage and standardization, and establishes the basis for European Union wide interoperability  in the delivery of public services.
2. the electronic documents of Public Administrations shall possess the technical specifications that ensure the widest possible readability, not connected to proprietary operating systems and software.
3. Electronic documents shall be written with software that ensures their readability and the durability of the storage and security rules established as they were acquired and classified.
4. A committee of experts will be charged with establishing the specifications of the documents of the Public Administrations and their readability across time, also by means of their conversion to new generation software. The committee shall ensure the interoperability of telematic administrative procedures.
5. For the purpose of long term archiving of the most relevant final documents the parallel use of paper-based documents is also allowed.




Signatures

EUROPEAN TELEMATIC ADMINISTRATIVE PROCEDURES
A study for the drafting of a shared document that will be introduced to the E.U Commission in order to a possible directive
WORKGROUP

Role in the group

  • Coordinator: Prof. G. Duni
  • Compiler: Who has collaborated to the draft of the final text 
  • Congress rapporteur: who has submitted a written report or an oral intervention at the congresses (Italy Nov. 14-15/2008 or July 10/2009; Spain Oct. 22-23 2009)
  • Supporter: who supports the need for a Directive on Telematic procedures.

Surname

First name

Country

Role in the group

Institution

Title

Duni

Giovanni

Italy

Coordinator

Università di Cagliari

Project manager, Professor of Adminstrative Law

Cluzel-Métayer

Lucie

France

Compiler

Université de Paris II

Maître de conférences

Cotino Hueso

Lorenzo

Spain

Compiler

Universidad de Valencia

Professor of Constitutional Law

Gamero Casado

Eduardo

Spain

Compiler

Universidad Pablo Olavide

Univerisity researcher of Adminstrative Law

Marongiu

Daniele

Italia

Compiler

Università di Cagliari

Researcher and Lecturer of Administrative Law

Martín Delgado

Isaac

Spain

Compiler

University Castilla La Mancha of Toledo

Profesor contratado doctor de Derecho Administrativo

Puddu

Stefania

Italy

Compiler

University of Cagliari

Researcher, Adminstrative Law

Sarmento e Castro

Catarina

Portugal

Compiler

University of Coimbra

Judge of the Constitutional Court;

Professor of Adminstrative Law

Talamo

Maurizio

Italia

Compiler

University of Roma 2

Professor of Information Technology

Tatti

Stefano

Italy

Compiler

University of Cagliari

Researcher, Adminstrative Law

Turki

Slim

Luxemburg

Compiler

CRP Henri Tudor - CITI

 Researcher

Azzena

Alberto

Italy

Congress rapporteur

University of Pisa

Professor of Adminstrative Law

Boussama

Farid

France

Congress rapporteur

University of  Montpellier I

Docteur, agrégé de mathématiques

Bruno

Vanni

Malta

Congress rapporteur

Justice Unit

Coordinator

Buggy

Frances M.

Ireland

Congress rapporteur

 Dublin Institute of Technology

ICING programme manager

Carbone

Vincenzo

Italy

Congress rapporteur

Supreme Court of Cassation

Chairing Judge

Carloni

Enrico

Italy

Congress rapporteur

University of Perugia

Associate Professor of Administrative Law

Cerrillo Martinez

Agusti

Spain

Congress rapporteur

Open University of  Catalonia

Univerisity professor of Adminstrative Law

De Giovanni

Enrico

Italy

Congress rapporteur

Presidency of the Council of Ministers, CNIPA

Attorney  General, CNIPA [IT consortiium for PA]consultant

Fiandanese

Franco

Italy

Congress rapporteur

Supreme Court of Cassation

Judge, CED Director

Fort

François Xavier

France

Congress rapporteur

University of Montpellier I

Professor of Public Law

Gatt

Marie Louise

Malta

Congress rapporteur

Justice Unit

Head

Giurdanella

Carmelo

Italy

Congress rapporteur

Foro di Catania

Lawyer, CESDA Director

Leitner

Christine

Austria

Congress rapporteur

Center for European Public Administration. Danube University Krems

Head

Melis

Federico

Italy

Congress rapporteur

Cagliari Bar Association

Lawyer

Mercatali

Pietro

italy

Congress rapporteur

CNR in Florence, ITTIG

CNR First Researcher

Orofino

Angelo Giuseppe

Italy

Congress rapporteur

University LUM  of Bari

Univerisity researcher of Adminstrative Law

Ortega Alvarez

Luis

Spain

Congress rapporteur

University Castilla La Mancha of Toledo

Catedratico of Adminidtrative Law
Indicated by Ministerio de Administraciones Públicas

Piras

Paola

Italy

Congress rapporteur

University of Cagliari

Dean, Professor of Adminstrative Law

Pubusa

Andrea

Italy

Congress rapporteur

University of Cagliari

Professor of Adminstrative Law

Pubusa

Francesa

Italy

Congress rapporteur

University of Cagliari

Researcher, Adminstrative Law

Rolleri

Floretta

Italy

Congress rapporteur

CNIPA

Member of CNIPA, Judge

Xuereb

Marica

Malta

Congress rapporteur

 Malta Information Technology & Training Services Ltd

IT Project Leader

Bonsignore

Leonardo

Italy

Supporter

Tribunal of Cagliari

President

Ciampi

Costantino

Italy

Supporter

CNR in Florence, ITTIG

Director

Huber

Peter M.

Deutschland

Supporter

Ludwig-Maximilians-UniversitŠt MŸnchen

Thuringian Minister of Interior

Professor of public law and doctrine of State

Lindgård

Anders

Denmark

Supporter

Telit APS

Founder of Telit. He has been an associate professor (lecturer) at the University of Copenhagen.

Rotomskis

Irmantas

Latvia

Supporter

Mykolo Romerio universitetas

 Vice-Dean Assoc. Prof.

Faculty of Economics and Finance Management