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See detailThe Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law - Good Administration as the Test-Case
Hofmann, Herwig UL; Mihaescu, Bucura Catalina UL

in European Constitutional Law Review (2013), (2013), 73-101

This article is a contribution to the debate about the relation between the multiple sources of fundamental rights in the EU legal system. It argues in favour of a non-hierarchic, pluralistic ... [more ▼]

This article is a contribution to the debate about the relation between the multiple sources of fundamental rights in the EU legal system. It argues in favour of a non-hierarchic, pluralistic understanding of these sources. The high practical relevance of this question is analysed by means of a case study of the right to good administration. The article discusses the difficulties in defining the scope of the right to good administration under the Charter of Fundamental Rights of the EU (CFR or the Charter) and that of the right to good administration as a general principle of EU law. In view of this case study, the article argues that adopting a pluralistic understanding of the EU fundamental rights’ sources allows for a clarification and improved understanding of the individual’s rights in the EU legal system. [less ▲]

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See detailProceduralising EU Non-legislative Rules: Bridging the Gaps
Mendes, Joana UL; Curtin, Deirdre; Hofmann, Herwig UL

in European Law Journal (2013)

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See detailConstitutionalising EU Executive Rule-Making Procedures: A Research Agenda
Hofmann, Herwig UL; Curtin, Deirdre; Mendes, Joana

in European Law Journal (2013), 19(1), 1-21

The existence or non-existence of procedural rules for executive rule-making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional ... [more ▼]

The existence or non-existence of procedural rules for executive rule-making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional principles such as transparency, openness and participatory democracy highlighted by the Treaty of Lisbon constitute decisive guidelines for the design of administrative procedures in the EU as they can have a considerable impact on substantive outcomes. We apply such principles with regard to non-legislative rule making procedures in the EU, highlight the salience of this discussion and argue that some systematization of non-legislative rule making procedures is needed in order to implement constitutional principles in a complex and plural environment. [less ▲]

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See detailThe European Research Council as Case Study for Agency Design in the EU
Hofmann, Herwig UL

in European Public Law (2012), 18

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See detailGood Governance in European Merger Control
Hofmann, Herwig UL

in Galloway, Jonathan (Ed.) Mergers and Aquisitions (2012)

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See detailConstitutional Aspects of the Pluralisation of the EU Executive through 'Agencification'
Hofmann, Herwig UL; Morini, Alessandro UL

in European Law Journal (2012), 36

The Treaty of Lisbon has put emphasis on a more strict separation of executive functions between the EU and the Member States. At the same time it attempts to concentrate more executive powers on the ... [more ▼]

The Treaty of Lisbon has put emphasis on a more strict separation of executive functions between the EU and the Member States. At the same time it attempts to concentrate more executive powers on the Union level in the hands of the Commission. This article argues that the Treaty of Lisbon’s innovations have some paradoxical effects. In reality they favour the ongoing diversification towards more hybrid and collaborative executive structures. The article discusses, from the point of view of an EU constitutional law, possible explanations and models for understanding and assessing the ongoing delegation of powers. [less ▲]

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See detailDie Ausübung übertragener Normsetzungsbefugnisse durch die Europäische Kommission – Verfahrensrecht in einer neuen Dimension
Hofmann, Herwig UL; TÜRK, Alexander

in Zeitschrift für Gesetzgebung (2012)

Dieser Artikel geht der Fragestellung nach, wie sich das EU Verfassungs- und Verwaltungsverfahrensrecht der EU im Hinblick auf übertragene Normsetzungsbefugnisse der EU in den ersten Jahren seit in ... [more ▼]

Dieser Artikel geht der Fragestellung nach, wie sich das EU Verfassungs- und Verwaltungsverfahrensrecht der EU im Hinblick auf übertragene Normsetzungsbefugnisse der EU in den ersten Jahren seit in Krafttretens des Vertrages von Lissabon entwickelt hat. Was muss in Zukunft geschehen, um Legalität und Legitimität dieser Form der Ausübung hoheitlicher Gewalt auf der Unionsebene zu gewährleisten? Der Artikel fragt nach den Bedingungen zum Erlass solcher Akte, administrativer, politischer und judikativer Kontrollmechanismen und potentieller Wirkung der verschiedenen Strukturen. Dazu analysiert er in einem ersten Teil die Unterscheidung des AEUV zwischen delegierten Rechtsakten nach Artikel 290 AEUV und Durchführungsrechtsakten nach Artikel 291 AEUV als den zwei verschiedenen Formen verbindlicher unter-gesetzlicher Rechtsakte der EU. Der Artikel geht dann auf die ersten Erfahrungen in der Realität der Gesetzgebungspraxis und die ersten Erfahrungen ein, die mit der Existenz dieser Formen gesammelt wurden. Dabei werden sowohl administrative, politische als auch Formen gerichtlicher Kontroll- und Einflussmöglichkeiten ins Auge gefasst. Der Artikel endet mit einem Ausblick auf die sich entwickelnde Debatte zu einem EU Verwaltungsverfahrensrecht, das im Hinblick auf die Artikel 290 und 291 AEUV gut daran täte, auch die Verwaltungsverfahren zu berücksichtigen, die auf eine exekutive abstrakt generelle Rechtsetzung zuarbeiten. [less ▲]

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See detailAdministrative Law and Policy of the European Union
Hofmann, Herwig UL; TÜRK, Alexander; ROWE, Gerard C.

Book published by Oxford University Press - 1st (2011)

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See detailThe European Research Council as Case Study for Agency Design in the EU
Hofmann, Herwig UL

in European Public Law (2011), (17), 173-188

Agencies have become a ubiquitous part of the administrative structure of the EU. They fulfil diverse and important roles in implementing EU policies.As diverse as the tasks of EU agencies are their forms ... [more ▼]

Agencies have become a ubiquitous part of the administrative structure of the EU. They fulfil diverse and important roles in implementing EU policies.As diverse as the tasks of EU agencies are their forms of organization. Few have been established by theTreaties themselves; most have been created on the basis of secondary legal acts. Agency design has, thus, become an important part of EU legislative activity.The future of agencies is, however, very much subject to debate.1 This article does not analyse agencies in the EU context from an abstract point of view. Instead, it studies possible structural and procedural arrangements for agencies on the basis of a real-life case study, the European Research Council (ERC),2 chosen from the area of the EU’s research policy.The ERC displays not only a rather unusual structure with creative institutional design. It also stands as an example for many controversies about independence and accountability of agencies in the EU. This short article, after introducing the ERC and before looking at the various options for agency design in the EU in general terms, looks at the options for changing the ERC’s legal status and architecture. This is used as a canvas to outline some thoughts on the role and independence of agencies in the EU. [less ▲]

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See detailDouble Taxation Agreements: Between EU Law and Public International Law
Hofmann, Herwig UL

in Rust, Alexander (Ed.) Double Taxation within the European Union (2011)

After the first drafts of the Treaty of Lisbon were available outside of the small circle of cogniscenti, specialists of the various policies tried to establish whether the new Treaty on European Union ... [more ▼]

After the first drafts of the Treaty of Lisbon were available outside of the small circle of cogniscenti, specialists of the various policies tried to establish whether the new Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU) contained anything relevant for their specific areas of law. People interested in tax law and those interested in the relation between EU law and public international law quickly established that one familiar yet not always well understood part of the old EC Treaty was missing: The TFEU like the earlier draft Treaty Establishing a Constitution for Europe, did not contain an equivalent to Article 293 EC – an Article regulating agreements between EU Member States on matters such as inter alia double taxation. In this chapter, I will embark on looking at the reasons and, more importantly, the effects of abolishing Article 293 EC in the current legal system. Several questions need to be addressed: Is there now a legal void? If not, was the initial article superfluous? What does its disappearance say about the future relation between double tax agreements concluded under public international law and EU law? The issue of double tax agreements in the context of the EU raises some fundamental questions about the complex multi-level legal world we are living in. [less ▲]

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See detailTransatlantic Perspectives on Administrative Law - an Introduction
Hofmann, Herwig UL

in HOFMANN, Herwig C. H.; WEAVER, Russell L. (Eds.) Transatlantic Perspectives on Administrative Law (2011)

This book focuses on two important trends in the future of Administrative Law. The first is the relevance of administrative law for developing legitimacy and accountability of multi-level regulatory ... [more ▼]

This book focuses on two important trends in the future of Administrative Law. The first is the relevance of administrative law for developing legitimacy and accountability of multi-level regulatory systems. In a time of global trade in goods and services, as well as increasing interconnectedness of public institutions, administrative law is in a period of growth and transformation. This book examines these transformations in the context of global administrative law, as evidenced by increasing interest in the nature and conditions of EU administrative law, and the movement towards increasingly intense regulatory cooperation in bilateral settings (for example EU-US) as well as multilateral fora (for example in international organizations such as the WTO). [less ▲]

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See detailInformationsmanagement in Administrativen Normsetzungsverfahren der EU
Hofmann, Herwig UL

in Schneider, Jens-Peter; Lipcowitz, Irena (Eds.) Perspektiven des deutschen, polnischen und europäischen Informationsrechts (2011)

This chapter outlines EU law on the use of information in administrative rule-making. Rules and principles of EU administrative procedure law establish who in administrative networks within the EU has to ... [more ▼]

This chapter outlines EU law on the use of information in administrative rule-making. Rules and principles of EU administrative procedure law establish who in administrative networks within the EU has to generate information, by which means, of which quality, from which source, and how, finally, such information is to be used in rule-making procedures and beyond. Also it addresses questions of responsibility for use and correctness of information. Information is not only subject of EU administrative law for its nature as raw material for formal rule-making, it also addresses ‘regulation by information’. [less ▲]

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See detailBook Review of 'Procedural Autonomy of EU Member States: Paradise Lost?' by D. Galetta
Hofmann, Herwig UL

in Common Market Law Review (2011), 48

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See detailInformation in EU Rulemaking
Hofmann, Herwig UL

Presentation (2011)

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See detailTransatlantic Perspectives on Administrative Law
Hofmann, Herwig UL

Book published by Bruylant (2011)

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See detailInformacja w procedurze tworzenia norm przez administratcje Unii Europejekiej
Hofmann, Herwig UL

in SZPOR, Graznya (Ed.) Internet Ochrona wolnosci wlasnosci I bezpieczenstwa (2011)

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See detailThe European Picture: Ten Challenges Facing EU Public Law in the Coming Decade
Hofmann, Herwig UL

in HOFMANN, Herwig C. H.; WEAVER, Russell L. (Eds.) Transatlantic Perspectives on Administrative Law (2011)

This chapter’s objective is to reflect on existing and impending challenges to European Union (EU) public law from both a constitutional and an administrative angle. The background to such an overview is ... [more ▼]

This chapter’s objective is to reflect on existing and impending challenges to European Union (EU) public law from both a constitutional and an administrative angle. The background to such an overview is that the EU law has radically changed in the past decades. Next to several Treaty amendments enlarging the scope of EU policies, the EU has grown substantially in size. European administrative law has evolved over time and has become an important factor shaping the reality of policy implementation in the EU. At the same time, EU public law remains complex due to the EU’s ‘variable geometry,’ according to which in some policy areas, such as for example the monetary Union, not all EU Member States participate, whilst in others, such as for example the common visa and travel area, non-EU Member States are involved. In this chapter I argue that the evolving nature of European integration through law has both a constitutional law and administrative law context. Challenges for the future development of quantity as well as quality of policies in the area of integration arise from both aspects. I will try to outline ten of the, in my view, most pressing challenges. [less ▲]

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See detailJudicial Review of Commission Decisions in State Aid
Hofmann, Herwig UL; Morini, Alessandro UL

in SZYSZCZAK, Erika (Ed.) Research Handbook in State Aid Law (2011)

This chapter focuses on annulment procedures brought against Commission Decisions under Article 263 TFEU.1 Refl ecting the rapid evolution of key aspects of this litigation, it illustrates and ... [more ▼]

This chapter focuses on annulment procedures brought against Commission Decisions under Article 263 TFEU.1 Refl ecting the rapid evolution of key aspects of this litigation, it illustrates and contextualises the background and origins of the problems the case law attempts to address (I) and proposes paths to simplifi cation and rationalisation of the developments of the past years with regard to standing (II) as well as the extent of judicial review (III)2 before drawing general conclusions for the future role of general principles of law (IV) in this area. The chapter shows the increasing importance of information- related general principles of law in this fi eld. [less ▲]

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