European Administrative Law in the Constitutional Treaty (Modern Studies in European Law)

210 Pages·2007·1.11 MB·English

by  Eva Nieto-garrido

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EUROPEAN ADMINISTRATIVE LAW IN THE
CONSTITUTIONAL TREATY
This book presents an integrated approach to general questions of European
administrative law and offers some possible solutions to the problems that it poses,
with the Treaty establishing a Constitution for Europe as the point of reference.
Under the Treaty,general questions ofadministrative law are no longer addressed
merely in a fragmented or incidental way but as a discipline that governs the exercise
ofsovereign powers by a supranational entity.This calls for a detailed examination
of the fields that comprise European administrative law,and the book therefore
examines in some detail the key areas of rulemaking powers and normative
instruments,the implications ofthe Charter ofFundamental Rights for European
and national administrations, administrative procedure, and judicial protection
within the European Union.
Modern Studies in European Law:Volume 12
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Modern Studies in European Law
1 Soft Law in European Community Law Linda Senden
2 The Impact ofEuropean Rights on National Legal Cultures Miriam Aziz
3 Partnership Rights,Free Movement and EU Law Helen Toner
4 National Remedies Before the Court ofJustice:Issues ofHarmonisation and
Differentiation Michael Dougan
5 The National Courts Mandate in the European Constitution Monica Claes
6 EU Environmental Law:Challenges,Changes and Decision-Making
Maria Lee
7 European Union Law and Defence Integration Martin Trybus
8 Principles ofEuropean Constitutional Law Armin von Bogdandy &
Jürgen Bast
9 EU International Relations Law Panos Koutrakos
10 Free Movement,Social Security and Gender in the EU Vicki Paskalia
11 The Regulation ofthe State in Competitive Markets in the EU
Erika Szyszczak
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European Administrative Law in
the Constitutional Treaty
Eva Nieto-Garrido and Isaac Martín Delgado
OXFORD AND PORTLAND,OREGON
2007
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© Eva Nieto-Garrido and Isaac Martín Delgado 2007
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To my parents and to Ana Beliu and David
E.N.G
To my family,from whom I learnt everything that I am
I.M.D
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Foreword
In the year 2006,just as the European Union was planning its 50th birthday party,
the powerful and prestigious American Bar Association circulated the first fruits of
a major restatement of European Community law.Whether the ABA is a non-
profit-making organisation, I am not aware; but it is hardly a philanthropic
institution.Why then should this massive project have seen the light ofday?
One reason is that transatlantic political relationships are becoming closer.We
have already experienced joint action in the field ofsecurity,with questions raised
about legality,as with ‘rendition’in breach ofdue process requirements or,in the case
ofair travellers,their data protection rights.There is a need for policy convergence,
raising questions about participation in the EU rulemaking process.No wonder that
Americans, faced with the labyrinthine comitology, work towards a European
Administrative Procedures Act.Vicious battles have already taken place in the shadow
of the WTO, for example, over imports of bananas or the use of hormones in
industrial agriculture.At a more mundane level,any nation wishing to do business
with the EU is likely to come into contact with the rules ofits competition law,central
to the evolution of European administrative procedures, and with its public
procurement law,both of which have transformed national laws of administrative
contract.What these examples have in common is that all touch on central,areas of
administrative law.This is in itselfgood reason for the ABA’s interest.
In its 50-year life span,EU administrative law has grown very rapidly to the point
where it is capable ofinfluence well beyond the European Union and its Member
States.Indeed at a global level,some see the EU system,with its necessary emphasis
on the reconciliation ofdisparate and divergent legal orders,as the prototype for a
global administrative law.The only real rival in this field is American administrative
law,as no doubt the ABA also realises.Listing its sources,Professor Jurgen Schwarze,
doyen ofEU public law studies,originally prioritised the jurisprudence ofthe Court
ofJustice,though over the years he began to note the extent to which jurisprudence
was being overtaken by a substantial body ofregulation and ‘soft law’,much ofit
procedural.The Court’s contribution,which remains significant,rests on flimsy
foundations.Paragraph 2 ofTEC Article 288 (ex 215),allowed the courts to develop
the law in compensation claims ‘ in accordance with the general principles common
to the laws ofthe Member States’.In time this became the basis for the development
by the Court of an ambitious set of general principles for an EU public law and
procedural norms.From its very inception,therefore,EC law has been dedicated to
harmonisation while at the same time out of respect for pluralism and diversity;
cross-fertilisation rather than centralisation has been the general rule.
This is an area in which administrative lawyers across the European Union
should be knowledgeable and open to each other’s ideas.But although it is a subject
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viii Foreword
ofgreat importance,EU administrative law has until fairly recently attracted little
sustained academic interest.There are,for example,few academic courses devoted
to it and EU public law normally focuses on the institutions,with special reference
to the Court.One reason for this may be the emphasis on trade and commerce,
which has directed scholars towards the commercial subjects: competition,
monopolies and state aids.(The failure to characterise these regulatory processes as
a form ofadministrative law is in itselfsurprising).Language has also undoubtedly
been a major problem.It was several years before Professor Jurgen Schwarze’s epic
comparative study of general principles was translated into English,today on its
way to becoming the lingua franca ofEuropean studies,while the innovative treatise
of Professors Mario Chiti and Giorgio Gaja, has, I suggest, been undeservedly
pushed to the sidelines because it is available only in Italian.All the more reason
then to welcome the present work by two Spanish scholars.
This work is emphatically not, however, a student text or straightforward
administrative law treatise but something much more original and ambitious.At
the heart ofthe book lie two constitutional texts,which the authors see as central to
European public law.The first is the ill-fated Constitutional Treaty,which may or
may not come into force.Whether or not it does is not,however,a matter ofmuch
moment to the authors.Their interest in the Constitutional Treaty lies mainly in its
approach to EU lawmaking. EU lawmaking processes are probably the most
complex in existence,while the hierarchy of its legal norms is such as to leave all
rational public lawyers (as well as those who need to operate them) in despair.The
authors argue strongly for simplification and see the way forward as that proposed
in the Constitutional Treaty.This would put in place a structure at European level
akin to that found in the Member States. There would be European laws and
framework laws and, in addition to the implementing powers that have given
rise to the comitology, there would be a power to make delegated legislation.
Whether or not the Constitutional Treaty ever proceeds to ratification, these
normative instruments,the authors believe,would transform European admin-
istrative law.
The Charter ofFundamental Rights and Freedoms is the second constitutional
text seen by the authors as significant for the future of EU administrative law.
Whether or not this will be made binding depends, possibly, on whether the
Constitutional Treaty comes into force. However this may be, the Charter will
certainly impinge on the EU’s administrative organs and processes as well as on its
courts.Focusing on the right to good administration in the Charter,the authors set
out to consider what its impact might be.These are difficult and delicate questions,
with effects at every level of the complex,multi-level European decision-making
process.Is it really going to be possible,for example,to confine the ambit of the
Charter to cases where Member States ‘are implementing Union law’? Will there not
be an inevitable ‘over-spill effect’,bringing conflicts of jurisdiction such as those
which have in the past bedevilled relationships between the Court ofJustice and the
German Constitutional Court? And will there be new conflicts between the two
transnational European courts,Luxembourg and Strasbourg?
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Foreword ix
Transparency in the form of access to official information now figures in the
index of nearly all texts on administrative law. A link as yet less commonly
recognised is that between freedom of information and data protection. These
authors have chosen to highlight the potential clash between rights to know and
rights ofprivacy,placing data protection firmly on the administrative law agenda,
where it has not usually featured.This is a matter ofthe greatest importance at a
time when the EU is building giant data banks and making them widely accessible
across Member States and,perhaps even less wisely,to states and bodies outside the
European Union.It is good too to see that the authors go beyond the Community
(or First Pillar) administrative agencies to deal with the accountability ofCouncil
agencies and more specifically Europol and Eurojust.Ifadministrative law is about
control—and most public lawyers agree that it is—then it must be significant that
the competence ofthe Community Courts in matters ofjustice and home affairs
remains attenuated. As administrative lawyers, we are right to be suspicious in
matters ofjustice and home affairs;they are the more dangerous because they are
less well -controlled.
To end on a curmudgeonly note,as a British administrative lawyer,born and bred
in a common law system,my only dissent from the priorities of my continental
colleagues concerns what they call the ‘old issue’ofa European code ofadministra-
tive procedures. In recent years, as the practice of harmonisation has evolved
through soft law methods and experiments with the Open Method ofCoordina-
tion,I have been happy to see this hoary old chestnut fall from the agenda,to be
replaced by a call from the private lawyers for a European codification ofcontract
law.(Academics must have something to do).I have much sympathy with the work
ofthe European Ombudsman in developing principles ofgood administration,in
seeing them published and in monitoring their implementation.We need,however,
to bear in mind the arguments ofthose who,like Giandomenico Majone,see the
legitimacy ofthe European project as deriving from ‘output legitimacy’.To put this
differently,we need to consider whether respect does not depend rather on effective
policy-making than on institution-building and constitution-drafting.Surely the
lawmaking processes and governance of the European Union are sufficiently
sclerotic without a code ofadministrative procedures as a further target for attack
by multinational enterprises and their skilful in-house lawyers?
Professor Carol Harlow
March 2007
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