1. Introduction

The principle and right of good administration can be an interesting tool for promoting progressive realisation of economic, social, and cultural rights (ECSR). It is recognized in the legal systems of several countries and used by the case law of different courts. The obligation of due diligence arising from the right to good administration may be particularly relevant for advancing the progressive realisation of ECSR. Throughout this study, we will make specific reference to the case of housing. Although there are studies linking the right to housing and good administration^[1], there has so far been no attempt to connect the specific requirement of due diligence with that right, and this relationship is still very vague and unspecific^[2]. The goal of this analysis is to create a bridge between the due diligence requirement and the progressive realization of ECRSR in general and of housing in particular^[3].

2. Regulation and Case Law

The Finnish Constitution includes references in arts. 21 and 124, the Mexico City’s Constitution includes a right to good administration (art. 60) whilst the Italian Constitution refers to “buon andamento” in art. 97 (expression equivalent to good administration, according to the Italian Constitutional Court´s decision number 184 of 1994). the Peruvian Constitutional Court (e.g. number 2235-2004-AA/TC) and Colombian (e. g. TC/0285/22, 16-09-2022) Constitutional Courts have declared that the principle of good administration can be found implicitly in their constitutions.

The case law of the ECHR has built the notion of “good governance”, applying it to resolve conflicts both in the administrative and in the judicial field. Several decisions that use the concept of good governance to control public activity in different areas are of special interest. This is the case of the decisions Cazja vs. Poland, October 2, 2012, Rysovskyy vs. Ucrania, October 20, 2011, or Öneryildiz vs. Turkey, November 30, 2004, among many others.

A right to good administration is recognised in Article 41 of the European Charter of Fundamental Rights^[4] as well as in European Member States’ legal systems, as a part of their constitutional traditions, according to the Court of Justice of the European Union^[5] which has enacted more than a thousand rulings since the 50´s. Since then, the EU Courts have used art. 41 several times to control administrative activity (e.g. April 29, 2015, T-217/11, Claire Staelen vs. European Union Ombudsman).

At the national level, different laws recognize the principle and right to good administration. In the Spanish case, for example, though the Spanish constitution does not include the words good administration (but the Supreme Court has stated the existence of an implicit principle of good administration, eg. decision of November 4, 2021), the Spanish legislator (e.g. 2013 Transparency Act) uses the term good government, and the regional legislators have included the right to good administration in the Autonomy Statutes of regional Government, Administrative Procedure Acts (e.g. Catalan Act of 2010) and legislation on transparency (e.g. Catalan act of 2014. In relation to the Italian case and the role of the legislator, article 1 of the Italian Administrative Procedure Act that provides for administrative activity to be governed by the principles of EU law and therefore makes art. 41 of the Charter applicable in relation to Italian citizens in front of the national public administration.

3. The Content of Good Administration: The Obligation of Due Care or Due Diligence

As recognised in multiple decisions by the Court of Justice of the EU^[6], the European Court of Human Rights^[7] and national courts (e.g. Spanish Supreme court, decision of November 4, 2021^[8]), the principle of good administration encompasses elements such as the right to be heard, the obligation to provide adequate reasons for decisions, and specially and above all the duty of acting with due diligence and due care^[9]. This duty, in the European arena implies:

1. a duty of collecting all relevant data (facts, interests, law, rights)
2. a duty of considering the reasonable alternatives which rise during the procedure
3. a duty of taking into accounts all the relevant factors and dismissing all the irrelevant factors
4. a duty of giving reasons

Thus, good administration is directly connected to the principles of due care and due diligence. This duty of acting with due diligence and due care is also used, with or without reference to good administration, beyond Europe all around the world, specially in relation to climate change cases. Due diligence is a concept well known in international public law^[10], and has been used increasingly in the field of climate change by, for example in:

• the ECHR (case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, April 2024): «act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures».
• the Inter-American Court on 4 July 2024 In Caso Pueblo Indígena U’wa y sus miembros vs. Colombia : «293. (…) the Court has emphasised that the principle of prevention of environmental damage (…) entails the obligation of States to take such measures as may be necessary (…). This obligation must be fulfilled in keeping with the standard of due diligence (…)» ^[11].
• the July 2025 International Court of Justice (ICJ) Advisory Opinion, issued on July 23, 2025, that extensively addressed the concept of due diligence in the context of states’ obligations to protect the climate system and prevent significant environmental harm from greenhouse gas emissions.

4. Due Diligence, Proportionality and Reasonableness

The duty of due diligence or due care which is extracted from the right to good administration (as a common standard in different legal traditions) is different from the principle of proportionality.

It is true that the prohibition included in the third level of the principle of proportionality (proportionality stricto sensu) regarding the need to avoid an improper balance of costs and benefits in the exercise of discretion has a connection with the duty of care. Without the latter the principle of proportionality could not be achieved. In order to avoid an improper balance it is clearly necessary to balance these principles.

But taking care and acting with due diligence when balancing is not the equivalent to acting proportionally. The public authority can respect the duty of care and break the principle of proportionality. Both are linked but are different: the duty of care is a positive obligation (to find the facts and interests and to balance them) whilst the principle of proportionality is a negative limit (do not trespass the proportionality line).

Regarding reasonableness, this concept is more used in the Common Law tradition, although is not unknown in the Civil Law tradition. There seem to be contact points between good administration and reasonableness, to be explored in the future. As Dawnes (2008) has said from the common law perspective:

«Reasonableness covers a wider field than proportionality. A measure might be proportionate, but its adoption unreasonable, because, for example, of a lack of consultation. It is not clear to me that the tests are the same, or even that they will yield the same result. They are quite different tests. One is a test of rationality; the other is a relationship test. One is an overall and general test; the other is a precise test applied negatively to a previously identified relationship»^[12].

5. Good Administration and Progressive Realisation of ECSR

In relation to progressive realisation of ECSR, the good administration, linked to the positive duty of due diligence, as in the climate change cases, would require that public authorities make informed decisions about the allocation of resources for ESCR, carefully weighing different priorities and obligations and giving reasons for the final decision which must be consistent with the information considered.

For example, challenges to austerity measures and lack of progressive realisation based on insufficient justification or failure to consider the impact on social rights and the available means can invoke the principle of good administration, because the duty of due diligence includes a duty of keeping a rational relationship between the final decisions and those factors, explaining the fulfilling of the other duties of due diligence above mentioned through the duty of giving reasons (collecting all relevant information, considering the reasonable alternatives which rise during the procedure, taking into accounts all the relevant factors and dismissing all the irrelevant factors).

In fact, these reasons are evidence that careful consideration really existed^[13].

Some courts in Spain have adopted a bolder approach than the Spanish Constitutional Court, affirming social rights as subjective rights and allowing claims of violation before administrative courts, particularly in areas like healthcare, recognising the importance of procedural guarantees and the duty of giving reasons^[14]. In that sense, for achieve progressive realisation, the principle of good administration implies a procedural element, the “due process”, requiring authorities to assess the social rights implications of their decisions, ensure sufficient data is available, and potentially engage in meaningful parliamentary debate for legislative acts.

6. Good Administration, Due Diligence and Obligation of Means: the case of housing

It is important to recall that the progressive realisation of ESCR is likely to be an obligation of means in most cases. This means that the principle imposes on a State the obligation “to do the best they can” in furtherance of a specific goal. By contrast, obligations of result require a State to guarantee the achievement of the prescribed result^[15]. As the ECSR in its decision European Federation of National Organisations working with the Homeless (FEANTSA) v. France, Collective Complaint No. 39/2006, p. 22ff, establishes:

«52. The Government argued strongly in its written submissions and at the hearing that the Charter’s provisions on the right to housing, in particular Article 31, only imposed on states an obligation of means. In other words, so long as suitable measures were taken with a view to securing the right to adequate housing, the situation would be in conformity with the Charter.

53. The Committee agrees that the actual wording of Article 31 of the Charter cannot be interpreted as imposing on states an obligation of “results”. However, it notes that the rights recognised in the Social Charter must take a practical and effective, rather than purely theoretical, form (International Commission of Jurists v. Portugal, Complaint No. 1/1998, decision on the merits of 9 September 1999, §32).

54. This means that, for the situation to be compatible with the treaty, states party must:

a. adopt the necessary legal, financial and operational means of ensuring steady progress towards achieving the goals laid down by the Charter;

b. maintain meaningful statistics on needs, resources and results;

c. undertake regular reviews of the impact of the strategies adopted;

d. establish a timetable and not defer indefinitely the deadline for achieving the objectives of each stage;

e. pay close attention to the impact of the policies adopted on each of the categories of persons concerned, particularly the most vulnerable.

55. In connection with means of ensuring steady progress towards achieving the goals laid down by the Charter, the Committee wishes to emphasise that implementation of the Charter requires state parties not merely to take legal action but also to make available the resources and introduce the operational procedures necessary to give full effect to the rights specified therein (Autisme Europe v. France, Complaint No. 13/2002, decision on the merits of 4 November 2003, §53)».

Precisely, “doing the best governments can in fulfilling the obligation of means”, implies acting with due diligence or due care, a relevant component of the right to good administration, as we have seen.

Judicial review can and must control the fulfilment of this obligation of means. For example, the Spanish Supreme Court has established in its judgment 188/2022 (15 February 2022), Legal Foundation No. 3. [Our translation]:

«In obligations of result, there is a commitment to comply with a certain objective, ensuring the achievement or result proposed (…). In the obligations of means, the commitment is to adopt the technical and organisational means as well as to deploy a diligent activity in their implementation and use that tends to achieve the expected result with means that can reasonably be qualified as suitable and sufficient for its achievement, hence they are called ‘diligence’ or ‘behavioural’ obligations.

The difference lies in the liability in one case or the other, since while in the obligation of result the liability is for a harmful result (…) whatever its cause and whatever the diligence used. In the obligation of means, it is sufficient to establish technically adequate measures and to implement and use them with a reasonable degree of diligence».

7. Determination of Due Diligence: Making Good Administration as Specific As possible

A final question must be considered. Neither legislation nor judges are providing clarity in relation to the level of diligence included in the expression due diligence. One way to approach this issue is to consider that this standard of conduct can only be determined on a case-by-case basis, through the courts. However, we believe that it is possible to offer some general guidelines for determining due diligence that can be useful to public authorities and judicial oversight.

Actually, case law gives some useful clues about how to generate a general orientation to be determined in accordance with the specific circumstances of each case:

• On one hand, we have the American Justice Learned Hand´s formula, created in the field of liability: there is negligence (that is lack of due diligence and violation of good administration) if PL>B, where B is the cost (burden) of taking precautions, and P is the probability of loss (L). L is the gravity of loss. The product of P x L must be a greater amount than B to create a duty of due care for the defendant^[16].
• The Inter-American Court on 4 July 2024 in Caso Pueblo Indígena U’wa y sus miembros vs. Colombia gave some useful inputs:

«293. the standard of due diligence, which must be appropriate and proportionate to the degree of risk of the environmental harm, which implies that in activities known to be more risky, such as the use of highly polluting substances, the obligation has a higher standard».

• The ICJ, in the mentioned advisory opinion in 2025 established the following in p. 275:

«In any case, the degree of a given risk of harm is always an important element for the application of the due diligence standard: the higher the probability and the seriousness of possible harm, the more demanding the required standard of conduct».

According to these perspectives, we suggest the following formula to help to know if there is good administration and due diligence in a given case, in general and in relation to progressive realization of ESCR in particular:

c=p x D

Where c, the cost of the measure of good administration (level of care or diligence) must be equal at least to the result of multiplying p, the likelihood of damage, by D, the gravity of the potential harm.

c represents the cost of the additional measure of good administration considered. A more detailed response to allegations made by stakeholders or citizens, whether or not to open an investigation, etc.

p represents how much the probability of making a wrong decision in general and in the field of ECSR is reduced when the additional measure of good administration considered is adopted. For example, a more careful response to allegations involves greater consideration of them and may reduce the probability of failing to consider relevant problems or alternatives, etc.

D is the damage resulting from making a poor decision. The death of a person because progressive realization measures were not taken, the waste of public money on unnecessary infrastructure that is not used by citizens because alternatives and relevant data were not considered, or the lack of water in a new urban development because a report warning of this fact was not requested…The magnitude or severity of this damage may depend on several factors, among which the following seem noteworthy:

• the impact on the personal and financial sphere of the citizen
• the risk of wasting public funds
• the potential number of people affected by the decision.
• the vulnerability of the person dealing with the administration (who will therefore require a higher degree of due diligence or care than in the case of non-vulnerability, as pointed out by the ECHR ruling of 16 November 2023, Case of G.T.B. v. Spain, case no. 3041/19, in which the Spanish state was condemned).

This seriousness will therefore be at its highest when it affects fundamental constitutional rights, an indeterminate number of vulnerable persons, or involves the use of public funds (which will require an equivalent level of due care or due diligence to be exercised) and will decrease (and with it, the degree of due care required of the Administration) when it affects non-fundamental constitutional rights, simple legal rights or mere legitimate interests, whether or not it involves the expenditure of public funds, and has only individual significance (e.g. administrative act or contract) or general significance (e.g. regulation or plan).

Therefore, p x D represents the benefit obtained by adopting the additional measure of good administration. This benefit has two components: the reduction in the probability of making a mistake and the harm resulting from making a mistake.

Finally, it should be noted that the probability of making a mistake may depend on several factors, in addition to the level of diligence adopted, for example: the uncertainty that may exist in each case as to what is the most appropriate decision, as well as the incentives or disincentives that the decision-maker has to seek good administration (thus, for example, whether the lack of diligence or not causes unfavorable personal repercussions, such as a possible disciplinary sanction the need to compensate for the damage caused with their personal assets).

The greater the uncertainty and the weaker the incentives for administrative authorities to make the right decisions (discretion), the greater the likelihood that they will make mistakes and, therefore, the greater the benefit of requiring additional measures of good administration. Hence the importance of appropriate organisational, procedural and civil service designs to encourage good administration by establishing appropriate measures.

The use of Citizen´s Charters and Protocols can help to establish the right level of due diligence and, therefore, the due standard of good administration, in general and in relation to the progressive realization of ECSR.

1. J. Ponce, O. Capdeferro, Buen gobierno urbano, transparencia y participación ciudadana: la prevención de la corrupción en el urbanismo, in Práctica urbanística: Revista mensual de urbanismo, 146, 2017. ↑
2. P.D. Cruz, La buena administración del derecho a la vivienda, in J. Rodríguez-Arana Muñoz (dir.), La buena administración para la realización de los derechos sociales fundamentales en el derecho administrativo iberoamericano, Colex, 2025. 309-320. ↑
3. This analysis is based in the contribution made to the study published by the CBEH in December 2025 and written by Koldo Casla, Juli Ponce, Marion Sandner, María José Aldanas, Rafael Cid & Irene Escorihuela with the title Litigation on the Progressive Realisation of Economic, Social and Cultural Rights: Under What Conditions May It Be Strategic? Available at: https://cbeh.cat/en/documento/litigating-for-progress-a-practical-guide-to-enforcing-economic-social-and-cultural-rights/. ↑
4. «Right to good administration1. Every 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.

   2. This right includes:

   – the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

   – the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

   – the obligation of the administration to give reasons for its decisions.

   3. Every person has the right 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.

   4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language». ↑

5. European Court of First Instance, decision of 30 January 2002, C2002/109/85, Max.mobil Telekommunikation Service GmbH v Commission of the European Communities:«Since the present action is directed against a measure rejecting a complaint, 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 of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1, hereinafter ‘the Charter of Fundamental Rights) 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». ↑
6. Regarding the ECJ, see Judgement of the Court of 21 November 1991, C-269/90, Technische University München v. Hauptzollamt München-Mitle, ECLI:EU:C:1991:438, ECR I-546 in which the duty of due care is connected to the right to be heard and to the duty of giving reasons:This decision states that: «13. It must be stated first of all that, since an administrative procedure entailing complex technical evaluations is involved, the Commission must have a power of appraisal in order to be able to fulfil its tasks. 14. However, 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 of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present». ↑
7. For example, in ECHR, decision of 2 october 2012, Application n. 5744/05, Czaja vs. Poland, par. 70, the ECHR says that:«In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I; Öneryıldız v. Turkey [GC], no. 48939/99, § 128, ECHR 2004-XII; Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights. In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal, cited above, § 72)». ↑
8. Decision of the Spanish Supreme Court November 4, 2021 (translation is ours):«As can be inferred from the Supreme Court’s statement, the principle of good administration has an indisputable constitutional and legal basis. We can distinguish two manifestations of this principle:

   on the one hand, it constitutes a duty and requirement for the Administration itself to guide its actions under the aforementioned parameters, including diligence and timeliness;

   on the other hand, it constitutes a right of the citizen, which can assert it before the Administration in defense of their interests and which, with regard to lack of diligence or administrative inactivity, is reflected not only in the prohibition of inactivity derived from national legislation, arts.9 and 103 of the Spanish Constitution and 3 of Law 39/2015, -although this principle of good administration is not expressly mentioned-, but expressly and categorically in art. 41 of the ECHR». ↑

9. J. Ponce, The Right to Good Administration and the Role of Administrative Law In Promoting Good Government, in A. Cerrillo and J. Ponce (eds.), Preventing Corruption and Promoting good Government and Public Integrity 25, Bruylant, 2017. Available at: The Right to Good Administration and the Role of Administrative Law In Promoting Good Government by Juli Ponce :: SSRN. ↑
10. T. Koivurova, K. Singh, Due Diligence Oxford Public International Law, Oxford University Press, 2023. Available at: Oxford Public International Law: Due Diligence. ↑
11. In a partly concurring and partly dissenting opinion in the case of the ECHR, Judgment of 30 January 2025), Cannavacciuolo and Others v. Italy, Applications No. 51567/14 and three others, Separate Opinion of Judge Serghides, para 10., Judge Serghides echoed Inter-American jurisprudence on public due diligence in relation to the protection of the environment:«Due diligence, as enshrined in the norm of effectiveness of the right to life, requires member States to not only recognise this right in theory but also to ensure its practical realisation. It is within the Court’s jurisdiction or sphere of competence to assess whether the State approached the problem with the required diligence given the nature and seriousness of the threat at issue (see paragraph 396 of the judgment)[31]. The due diligence standard has been expressed through a duty to take “reasonable and appropriate” measures[32]. In the context of due diligence and the principle of prevention under the right to a healthy environment as such, the following passage from the judgment adopted by the Inter-American Court on 4 July 2024 in Caso Pueblo Indígena U’wa y sus miembros vs. Colombia is very pertinent:

    “293. … the Court has emphasised that the principle of prevention of environmental damage forms part of customary international law, and entails the obligation of States to take such measures as may be necessary ex ante to the occurrence of environmental damage, taking into consideration that, due to its particularities, it will often not be possible, after such damage has occurred, to restore the previously existing situation. By virtue of this principle, States are obliged to use all means at their disposal to prevent activities under their jurisdiction from causing significant harm to the environment. This obligation must be fulfilled in keeping with the standard of due diligence, which must be appropriate and proportionate to the degree of risk of the environmental harm, which implies that in activities known to be more risky, such as the use of highly polluting substances, the obligation has a higher standard. On the other hand, the Court has pointed out that while it is not possible to enumerate of all the measures that could be adopted by States to comply with the obligation of prevention, a few, relating to potentially harmful activities, can, however, be identified. [Those are obligations to]: (i) regulate; (ii) supervise and monitor; (iii) require and approve environmental impact assessments; (iv) establish contingency plans; and (v) mitigate, when environmental damage has occurred.”[33]

    Timely action is a key component of due diligence, because it directly affects the ability to prevent harm, protect the right concerned, and ensure accountability.

    In respect of “timeliness” as a part of due diligence, a pertinent principle from the Court’s case-law is that the relevant measures must be applied in timely and effective manner[34]. Owing to the international obligation to prevent environmental damage and to minimise environmental risk, the promptness of the authorities’ response to a dangerous situation of pollution acquires primordial importance[35], as rightly stressed in the present judgment at paragraph 396.

    The norm of effectiveness, enshrined in Article 2 and other Convention provisions further reinforces the importance of timeliness. Rights must not only exist in theory but must also be meaningfully secured in practice. Untimely responses, even if well-intended, can fail to protect individuals adequately, rendering the right to life and other human rights not practical and effective but theoretical and illusory. Timeliness is also crucial in investigating and addressing rights violations. Member States are obligated to conduct prompt and thorough investigations into alleged violations to establish accountability and provide remedies». ↑

12. G. Dawnes, Reasonableness, Proportionality and Merits Review, Paper delivered to the New South Wales Young Lawyers Public Law CLE Seminar, The Law Society, Sydney 24 September 2008, available at: http://www.aat.gov.au/about-theaat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-amformer-pre/reasonableness-proportionality-and-merits-review. ↑
13. See about the relationship between records, reasons and rationality in several countries, including the US case, P. Cane, Records, Reasons and Rationality in Judicial Control of Administrative Power: England, the US and Australia, in Israel Law Review, vol. 48, issue 3, November 2015, pp. 309ff. ↑
14. Decision of the Superior Court of Galicia, April 12, 2013. See: https://eapc-rcdp.blog.gencat.cat/2013/10/30/sobre-una-astenica-y-perra-vida-derecho-economia-buena-administracion-y-minimo-vital-juli-ponce/. ↑
15. C.P. Economides, Content of the Obligation: Obligations of Means and Obligations of Result, in J. Crawford and others (eds.), The Law of International Responsibility 371, Oxford University Press, 2010. ↑
16. First established in the case United States v. Carroll Towing Co.,1947. P.Z. Grossman, R.W. Cearley, D.H. Cole, Uncertainty, insurance and the Learned Hand formula, in Law, Probability and Risk, Vol. 5, Issue 1, March 2006, Pages 1–18, https://doi.org/10.1093/lpr/mgl012. ↑