Administrative Law and Policy of the European Union

Book published by Oxford University Pressq - 2nd edition (in press)

The European Union is a union under the rule of law and accordingly all exercise of public authority needs to conform with the principle of legality. The legal framework of the EU is, however, as much as ... [more ▼]

The European Union is a union under the rule of law and accordingly all exercise of public authority needs to conform with the principle of legality. The legal framework of the EU is, however, as much as that of any state or international organization, subject to change over time. That part of this legal framework specifically governing EU administration has been particularly dynamic. The central reason for this dynamism is to be found in the evolving nature of European integration, and in the changing requirements and conditions for implementing EU policies. The legal framework of administration has been both the subject of, and a response to, change in the ambient political and institutional environment. The EU, having started as an organization of six Member States focused on economic integration, has evolved into a Union of twenty-seven Member States now touching almost all elements of the exercise of public power in a modern society. The evolutionary development of the constitutional basis of EU law, with its many phases of Treaty reforms and change induced by case-law, finds its parallel in EU administrative law. European administrative law has in this process grown, changed, and indeed matured over time, and has emerged as an important, yet sometimes not well understood, factor which materially shapes policy in the EU and its achievement in reality. The rise of the importance of EU administrative law is itself attributable both to the specificities of European integration and to the general increase in the importance of administrative regulation in the past decades. On the one hand, the protection of the society against risks associated with private activity such as banking, food production, energy production and distribution, transport, or activities threatening to the environment, to name just a few, and the achievement of a balance between their benefits and dangers have become increasingly important subjects of attention. On the other hand, the provision of services and infrastructure necessary to ensure and protect basic standards of living such as pensions, health care, access to water, energy supply and telecommunications services have been the subject of mixed regimes, often still having a strong public service element, but increasingly left to private provision subject to various levels of market regulation. Both kinds of motivation for regulatory measures and their implementation by appropriate authorities have added to, and substantially changed, the broad character of public administration in Europe in recent decades. Such changes have occurred not just on a national, that is, Member State level, but also, pre-eminently, on the level of the European Community and now Union. Indeed, many of the changes have themselves been triggered on the European level as integral or at least adjuvant elements of the establishment of the European internal market. The role, then, of administrative law and administrative activity on the European level is extensive and important. Rules and principles governing the exercise of administrative functions, the organization of the institutions and bodies exercising these functions, and applicable procedures are the essence of EU administrative law. These are the subject of this book. There are, it must be observed, many perspectives from which one can view, analyse and comprehend both administration and administrative law. Three models or perspectives appear to us to be particularly helpful: administration and administrative law may be usefully considered from functional, organizational, and procedural standpoints. The functional aspect of administration refers to the totality of the tasks of administration, no matter who undertakes them and how they are carried out. The organizational perspective emphasises the organization and structure of the institutions, bodies, and actors engaged in undertaking such tasks. Finally, a procedural understanding of administration observes the processes which link the various actors and authorities in the performance of administrative functions. None of these models standing alone provides a fully rounded understanding or conceptualisation of the subject matter of the book. A proper analysis of EU administrative law cannot view it from only one of these perspectives. Taken together, however, these three standpoints do offer a comprehensive perception, giving the subject a more multi-dimensional shape, and thus allowing a more tractable presentation of what is very complex material. For this reason, we offer a discussion of each of these three perspectives — the functional, organizational, and procedural aspects of European Union administration and the associated legal framework — by way of introduction. The three models are, of course, closely interlinked and in reality scarcely separable but, for analytical and presentational clarity, they are here addressed separately. [less ▲]

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 ▲]

Movements et résistances de l’intégation administrative

in Traité de droit administratif européen (2022)

The Integration of Global Standards into the EU as a ‘regulatory Union’

in Eliantonio, Mariolina; Volpato, Analisa (Eds.) Global Standards and EU Law (2022)

Standards set by bodies outside of the institutional architecture of the EU enter into the EU legal system and may influence EU decision making procedures by pathways including legislative references and ... [more ▼]

Standards set by bodies outside of the institutional architecture of the EU enter into the EU legal system and may influence EU decision making procedures by pathways including legislative references and delegation of powers to standardisation bodies as well as the use of principles developed in the CJEU case law. The great diversity of types of standards, their origin the procedure by which they have been established as well as their – often hidden - ‘entry-points’ into EU law raises multiple issues of legality requiring also some critical reflection of issues of legitimacy not least due to the powerful role that standards play in regulating EU policies. [less ▲]

Digitalisation of Administrative Law and the Pandemic-Reaction

Book published by Cambridge Scholars Publishing (2022)

Research Frameworks in Comparative Public Law: Law as Category, as Source and as Variable

E-print/Working paper (2021)

This chapter outlines some basic approaches to identifying frameworks of comparative research. It first argues that establishing comparative frameworks is a task ubiquitous to legal methodology. The ... [more ▼]

This chapter outlines some basic approaches to identifying frameworks of comparative research. It first argues that establishing comparative frameworks is a task ubiquitous to legal methodology. The framework is the decisive factor identifying the comparators and allowing assessment of similarities and differences. The framework allows identification of what to compare, how many commonalities the comparators have to start with, and how ‘foreign’ the two elements subject to comparison may be, so as to facilitate meaningful comparison. The chapter thus shows how comparative frameworks are flexible in serving the objectives defined by comparative scholars. This fluid feature of the framework of comparison and the relatively ubiquitous nature of the comparative method is the backdrop to the discussions in this chapter, critically reviewing three major frameworks identified by the objectives of the comparative approach: law as ‘category’, as ‘source’, and as ‘variable’. [less ▲]

Oxford Handbook of Comparative Administrative Law Research

Book published by Oxford University Press (2021)

The Duty of Care in EU Public Law - A Principle Between Discretion and Proportionality

in Review of European Administrative Law (2020)

This article concentrates on the ‘duty of care’ or ‘diligence’, a principle that has become ubiquitous in CJEU case law due to its central role in calibrating the intensity of judicial review of EU acts ... [more ▼]

This article concentrates on the ‘duty of care’ or ‘diligence’, a principle that has become ubiquitous in CJEU case law due to its central role in calibrating the intensity of judicial review of EU acts on the legislative, regulatory and single-case decision-making levels. It explores the development of the principle and critically reviews its use as well as whether it actually achieves the demands placed on it. The article further examines the tools developed and the emergence of the duty of care as a principle conferring individual rights in various procedural contexts. It describes how the duty of care has become a central link between on the one hand, a separation of powers-inspired respect for discretion of the institutions and bodies of the EU and, on the other hand, ensuring a rule of law based effective review of the legality of acts – a central feature in the EU specific approach to developing proportionality. [less ▲]

Europa – Quo Vadis? Ein kritischer Kommentar zum EZB-Urteil des BVerfG

in Europäische Zeitschrift für Wirtschaftsrecht (2020)

The Metamorphosis of the European Economic Constitution

Book published by Elgar Publishing - 1st (2019)