General Principles of Procedural Justice

in Ziegler, Katja S.; Jennings, Sir Robert; Neuvonen, Päivi J. (Eds.) et al Research Handbook on General Principles in EU Law: Constructing Legal Orders in Europe (2022)

This chapter addresses general principles of EU law concerning procedural justice. It does so using two sets of procedural rights: first, the right to good administration, and, second, the right to an ... [more ▼]

This chapter addresses general principles of EU law concerning procedural justice. It does so using two sets of procedural rights: first, the right to good administration, and, second, the right to an effective remedy. These procedural rights are central to ensuring the rule of law in the EU legal system and the accountability of the exercise of public functions in the EU. General principles of EU law within this chapter are understood as principles of constitutional character applicable throughout Union policies. In addition, many specific EU policies are governed by principles, which although general in nature, are applicable only to a specific policy sector. The working definition within this chapter is that only the former are general principles of EU law and not the latter, which are merely ‘principles’. This chapter traces the development and role of procedural principles and rights in the EU in very broad strokes. It does so in three steps: the chapter starts by briefly outlining the scope of application of the procedural general principles of EU law to sketch the depth and breadth of rights protected in this context (Section II). It then undertakes a quantitative assessment of references to procedural rights in the case law of the Court of Justice of the EU (CJEU) (Section III). The chapter finally concludes by discussing some possible explanations for the rise of procedural rights in EU law as general principles of procedural justice. We discuss how some of the difficulties arising from the existing situation can be remedied by the introduction of an EU regulation on administrative procedures (Section IV). [less ▲]

Ma thèse en 180 secondes version blogdroiteuropéen- par Simona Demková

Article for general public (2021)

The decisional value of information in European semi-automated decision-making

in Review of European Administrative Law (2021), 2(14), 29-50

This article asserts that the automated processing of information, such as via large-scale information systems in the Area of Freedom, Security and Justice (AFSJ), alters the ‘value’ of information from a ... [more ▼]

This article asserts that the automated processing of information, such as via large-scale information systems in the Area of Freedom, Security and Justice (AFSJ), alters the ‘value’ of information from a means of assistance to a key decisional asset. Information in its different forms, whether paper-based or digital, has always been fundamental to decision-making conduct. Concretely, the premise holds that decisions shall be based on correct, full, and adequate knowledge and reasoning. Technological innovation has, however, magnified information capacities and significance. The article in that respect maintains that the ‘decisional value’ of automatically-processed information consequently also alters the nature of the respective decision-making – from a conventional type where the agent exercises discretion to a ‘semi-automated’ conduct in which automation inhibits the agent’s decision-making capacity. The recognition of such transformation is necessary for the law to keep up with the technological progress and safeguard rights of individuals who are subjects of such semi-automated decisions. [less ▲]

The Grand Chamber’s Take on Composite Procedures under the Single Supervisory Mechanism

in Review of European Administrative Law (2019), 12(1), 209-220

The recent landmark judgment of Berlusconi (Fininvest) reaffirms the Union Courts’ initial stance regarding the division of jurisdiction for matters arising from composite procedures. Remarkably, however ... [more ▼]

The recent landmark judgment of Berlusconi (Fininvest) reaffirms the Union Courts’ initial stance regarding the division of jurisdiction for matters arising from composite procedures. Remarkably, however, in Berlusconi, the CJEU for the first time offers a conceptual discussion on the long discussed issue of jurisdiction in composite matters, and does so in the new context of the Single Supervisory Mechanism (SSM). In this respect, the Court first clarifies that where an EU institution enjoys discretion in the final decision-making under the arrangement of a composite procedure, the Union Courts shall have an exclusive jurisdiction over the procedure as a whole. Consequently, Member State courts are prevented from reviewing any steps leading to the adoption of a final decision, regardless of the legal effects thereof in the domestic legal order or the domestic procedural rules allowing for such a review. While seemingly logical, the binary approach to judicial vompetence opens more doors to uncertainty, than it closes. One key concern is regarding the appropriate conduct of review under exclusive jurisdiction; concretely whether and how the Union Courts are competent to review preliminary acts taken under national law. Generally, where interpretation of the respective national rules is clear, such a review would consist of a verification of compliance with the essential procedural guarantees by the Union institution or body, which took the final decision. This approach seems to apply also in cases where the Union institution has a limited discretion to review the national preliminary acts when taking the final decision. The following discussion identifies that despite the black-and-white understanding of discretion developed by the Court in Berlusconi, under more general jurisdiction, the Union Courts will always verify that decisions of the Union institutions are taken with all due care. [less ▲]