A Concept of the Public Function in EU Law?

in Gamero Casado, Eduardo (Ed.) Administrative Public Power: A Comparative Analysis in European Legal Systems (Öffentliche Verwaltung, Public Function, Puissance Publique, Potestà Amministrativa, Potestad Administrativa, Władza Publiczna) (2022)

In national legal systems, the concepts of ‘public power’ and ‘public function’ are central components of public law in general and of administrative law specifically. Yet the question arises whether the ... [more ▼]

In national legal systems, the concepts of ‘public power’ and ‘public function’ are central components of public law in general and of administrative law specifically. Yet the question arises whether the European Union (EU), as a system with special attributes not unlike a federal constitutional structure, does have a concept of the public power - in the sense of a ‘puissance publique’, ‘los poderes públicos’, ‘öffentliche Gewalt’ or an ‘openbaar gezag’? From this arises another question, would it be possible to identify a specific administrative function within the EU’s wider public function? And, can we differentiate and conceptualise such public function as opposed to the private sphere of exercise of powers? In an attempt to answer these questions, this chapter develops and defines the notion of the public function as requiring the conferral of a public power which obliges acting in the public interest. We address the fact that the public function of EU law so described applies both to the legislative and to the administrative powers of the EU. This distinguishes EU law from that of several states within the Union. It is against this background, that we then explore two particularities of the public function in EU administrative law – (1) its ‘organization’ as well as (2) its limits. To that end, we will focus on the reality that in the EU’s multi-level structure much of the administrative implementation of EU law takes place by Member State bodies, often in close cooperation within networks of national and European administrations as well as private parties. The limits of the administrative function will in turn be explored by reviewing the limits of delegating such functions within the EU. [less ▲]

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