Rule of Law and Participation: A Normative Analysis of Internationalised Rulemaking as Composite Procedures?

in International Journal of Constitutional Law (2014), 12(2), 370-401

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this article argues that the depletion of such ... [more ▼]

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this article argues that the depletion of such standards in processes of reception of trans- and international decisions within the EU potentially leads to situations of unrestrained authority and can constitute a challenge to the rule of law. It sets out the basis for a conceptual and normative analysis underpinning the argument that procedural standards of participation can be considered part of the rule of law. The depletion of such standards is one facet of a broader problem. Intertwined decision-making procedures that cut across EU and international levels of governance challenge the ability of law to limit executive action. The challenges that internationalized rulemaking procedures pose to law can only be apprehended if they are seen in their entirety as segments of a broader regulatory cycle. On this basis, this article proposes a re-conceptualization of the decision-making procedures that operate the substantive coordination between different sites of governance. Having a EU focus, the article contributes to analyzing the challenges and possibilities of the rule of law in the current realities of diffusion of power resulting from internationalization. [less ▲]

Consumers' Access to EU Competition Procedures: Outer and Inner Limits

in Common Market Law Review (2014), 51(2), 483-521

Enforcement of competition law affects consumers' economic interests, as part of the public interests EU competition law protects. Therefore, consumers ought to be involved in the respective enforcement ... [more ▼]

Enforcement of competition law affects consumers' economic interests, as part of the public interests EU competition law protects. Therefore, consumers ought to be involved in the respective enforcement procedures. Against this normative background, we analyse consumers' access to the public enforcement by the Commission; we assess whether and how the formal role they are assigned during this procedure and the way access is defined enable consumers to protect their economic interests. We identify outer and inner limits to consumers' access to competition enforcement procedures, arising from the Commission's discretion in handling complaints and in defining access to information. We critically evaluate those limits against the contention that the enforcement of competition law rules, and the way it is pursued by administrative actors, ought to be guided by the public interests inherent in EU competition law. [less ▲]

Article 42 - Right of Access to Documents

in Peers, Steve; Hervey, Tamara; Kenner, Jeff (Eds.) et al The EU Charter of Fundamental Rights - A Commentary (2014)

The right guaranteed in this Article has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No 1049/2001 has subsequently been adopted. The European Convention has ... [more ▼]

The right guaranteed in this Article has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No 1049/2001 has subsequently been adopted. The European Convention has extended this right to documents of institutions, bodies and agencies generally, regardless of their form (see Article 15(3) of the Treaty on the Functioning of the European Union). In accordance with Article 52(2) of the Charter, the right of access to documents is exercised under the conditions and within the limits for which provision is made in Article 15(3) of the Treaty of the Functioning of the European Union. [less ▲]

Rule of Law and Participation: A Normative Analysis of Internationalised Administrative Procedures

E-print/Working paper (2013)

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this paper argues that the depletion of such ... [more ▼]

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this paper argues that the depletion of such standards in processes of reception of trans- and international decisions within the EU potentially leads to situations of unrestrained authority and can constitute a challenge to the rule of law. The first part of the paper identifies the conditions under which this may occur. It sets out the basis for a conceptual and normative analysis underpinning the argument that procedural standards of participation can be considered part of the rule of law. As such, the depletion of procedural standards emerges as one facet of a broader problem – the ability of public law to structure discretion and constrain the exercise of authority that results from internationalised procedures. These intertwined decisionmaking procedures cutting across different levels of governance challenge law’s ability to limit executive action and, hence, the rule of law premise that the exercise of public authority ought to be limited by law. In this way, and despite its EU focus, the paper contributes to analysing the challenges and possibilities of the rule of law in the current realities of diffusion of power resulting from internationalisation. This perspective requires a re-conceptualisation of the decision-making procedures that operate the substantive coordination between the sites of governance involved. The processes through which inter- and transnational rules and decisions are received in EU law are only segments of a broader regulatory cycle initiated by inter- and transnational bodies – of which the receiving authorities are either members, observers, or, otherwise active collaborating parties. Such processes can neither be fully grasped by focusing only on the segments of decision-making developed within each legal system, nor can the challenges they pose to law be apprehended from this perspective. They ought to be seen in their entirety as segments of a broader regulatory cycle. On this basis, the second part of the paper proposes two possible routes to rethink internationalised procedures [less ▲]

Delegated and Implementing Rulemaking: Proceduralisation and Constitutional Differentiation

in European Law Journal (2013), 19(1), 22-41

The reform of non-legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu ... [more ▼]

The reform of non-legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu) implementing acts of the Union. However, it has ignored the centrality of transparency in the Union's democracy and the role of participation as a complementary source of democracy. This article argues that the procedures leading to the adoption of delegated and implementing acts are subject to the treaties' provisions on transparency and participation, and should be shaped by them. It analyses the constitutional choices underlying Articles 290 and 291, with a view to assessing whether and to what extent the material, organic and functional profiles of delegated and implementing acts condition procedural rules on transparency and participation to be followed in their adoption. [less ▲]

EU Law and Global Regulatory Regimes: Hollowing Out Procedural Standards?

in International Journal of Constitutional Law (2012), 10(4), 988-1022

This article examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, in particular ... [more ▼]

This article examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, in particular participation. Illustrative examples shed light on the practical interactions between EU and global regulatory systems and their likely negative impact on procedural standards. The author argues that the current EU rules of reception of such decisions are limited in two respects. First, issues of procedural protection are decided by the system of origin, the procedural rules of which may not be as developed as those in force in the EU. Second, rules of reception do not capture the effects of the varied interconnections developed between regulatory regimes at the global and at the EU level. The possible depletion of procedural standards in the segments of EU law that result from the reception of decisions of international bodies has relevant legitimacy implications. Procedural standards that may be bypassed have become accepted standards of legitimacy of the exercise of public power within the EU. Some give effect to norms of EU law and governance now enshrined in the Treaties. To the extent that they may be weakened by effect of the reception of decisions of international organizations and bodies, the exercise of public authority is potentially unleashed in the areas of intersection of legal systems. The article finally sketches the constitutional, procedural and theoretical paths that could lead to preserving procedural standards in the areas of intersection between EU and global regulatory regimes. [less ▲]

EU Law and Global Regulatory Regimes: Hollowing Out Procedural Standards

E-print/Working paper (2011)

This paper examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, such as participation ... [more ▼]

This paper examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, such as participation and transparency. Illustrative examples shed light on the practical interactions between EU and global regulatory systems and their likely negative impact on procedural standards. The current EU rules of reception of such decisions are limited in two respects. First, issues of procedural protection are decided by the system of origin, the procedural rules of which may not be as developed as those in force in the EU. Second, rules of reception do not capture the effects of the varied interconnections developed between regulatory regimes at the global and at the EU level. The paper argues that the possible depletion of procedural standards in the segments of EU law that result from the reception of decisions of international bodies has relevant legitimacy implications. Procedural standards that may be bypassed have become accepted standards of legitimacy of the exercise of public power within the EU. Some give effect to norms of EU law and governance now enshrined in the Treaties. To the extent that they may be weakened by effect of reception of decisions of international organizations and bodies, the exercise of public authority is potentially unleashed in those areas of intersection of legal systems. The paper further lays down the premises of a normative conception of the relationships between legal orders that would allow preserving procedural standards in the areas of interaction between EU and global regulatory regimes. [less ▲]

Participation and the Role of Law after Lisbon: a Legal View on Article 11 TEU

in Common Market Law Review (2011), 48(6), 1849-1878

Participation in EU governance has been largely kept outside the realm of law. Article 11 TEU has the potential to change this status quo, despite the fact that, with the exception of the European ... [more ▼]

Participation in EU governance has been largely kept outside the realm of law. Article 11 TEU has the potential to change this status quo, despite the fact that, with the exception of the European citizens' initiative, it represents more the recognition of previous institutional practices than an innovation proper. This contribution presents a normative interpretation of Article 11 TEU and analyses the implications of the distinct transformation this Treaty article postulates: the transition from participation based on a logic of participatory governance to participation that concretizes democracy as a "value" or a founding principle of the Union, and that responds to the respective normative yardsticks, such as equality and transparency. This is the main challenge posed by Article 11 TEU. While acknowledging that law is not the only way of giving effect to the prescriptions of this Treaty article, this contribution discusses the role of law in operating the normative shift mentioned. It analyses why different EU institutions may be urged to reconsider the role of law with regard to participation, in view not only of Article 11 TEU - as law may be needed to guarantee the conditions that ensure participation as a source of democratic legitimacy in the EU - but also of other Treaty provisions. [less ▲]

The Right to Be Heard in Composite Administrative Procedures: Lost in Between Protection?

in European Law Review (2011), 36(5), 651-670

In this article, the authors examine and question the rule developed by the judiciary according to which, in composite EU administrative procedures, the right to be heard must in the first place be ... [more ▼]

In this article, the authors examine and question the rule developed by the judiciary according to which, in composite EU administrative procedures, the right to be heard must in the first place be ensured in the relationships between the affected person and the competent national administrative authority. Ensuring the possibility to be heard at the national level might be logically coherent with the institutional principles of EU law, namely with the principles of procedural autonomy and of loyal co-operation. However, the authors will argue that such principles ensure neither the procedural protection of the legal sphere of the persons affected nor the due consideration of the public interests voiced by the participants. The rule mentioned cannot be a general rule applicable irrespective of the concrete division of procedural competences between the national and EU authorities. They will further argue that, despite the fundamental nature of the right to be heard, the EU legislator has taken insufficient account of the consequences of the divided nature of composite administrative procedures for participation rights. [less ▲]

La Bonne Administration en Droit Communautaire et le Code Européen de Bonne Conduite Administrative

in Revue Française d'Administration Publique (2009), 3(131), 555-571

Le code de bonne conduite administrative constitue une source importante pour comprendre lesens du principe et concept de bonne administration en droit administratif européen. Il englobeen effet certains ... [more ▼]

Le code de bonne conduite administrative constitue une source importante pour comprendre lesens du principe et concept de bonne administration en droit administratif européen. Il englobeen effet certains aspects qui ont tendance à être négligés dans la jurisprudence des juridictionseuropéennes ainsi que par les chercheurs en droit européen. De plus, contrairement à ce que lesrécents développements ont laissé présager – c’est-à-dire le fait que la Commission refuse deprésenter une proposition de règlement européen qui donnerait une force obligatoire auxdispositions du code – celui-ci demeure pertinent pour envisager les évolutions juridiquespossibles de la bonne administration. Le présent article met en avant les raisons et le sens du lienentre le code et l’article 41 de la Charte des droits fondamentaux, analyse la complexité et lesincertitudes entourant le concept de « bonne administration », souligne les interconnexions entreses aspects juridiques et extra-juridiques. Il aborde également les rapports du code avec desdéveloppements antérieurs du droit communautaire. Il met en lumière sa valeur ajoutée juridiqueet les fonctions qu’il exerce à l’heure actuelle tout en considérant les évolutions juridiques quipourraient en découler. [less ▲]