Reference : Participation and Participation Rights in EU Law and Governance
Parts of books : Contribution to collective works
Law, criminology & political science : European & international law
Law / European Law
Participation and Participation Rights in EU Law and Governance
Mendes, Joana mailto [University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit >]
Legal Challenges in EU Administrative Law. Towards an Integrated Administration
Hofmann, Herwig mailto
Türk, Alexander
Edward Elgar
[en] participation rights ; legal approach ; political approach ; political approach ; affected legal persons
[en] The European Courts have maintained a restrictive approach to participation rights in EU administrative procedures. The right to be heard is primarily recognised to addressees of unfavourable administrative decisions or, at any rate, to those directly and individually concerned by them. As such, its scope is limited to procedures leading up to the adoption of individual decisions. In this book chapter, it is argued that the limits set by the European Courts, in particular the principled exclusion of participation rights from rulemaking procedures, lead to a mismatch between the powers exerted by the EU administration and the procedural guarantees that are recognised to the persons affected. Furthermore, these limits are unjustifiable in the light of the rationales of participation rights, as these have been interpreted by the European Courts. In contrast to the Courts’ stance, the author puts forward criteria that may lead to the recognition of participation rights in a way that better suits the requirements of the rule of law and a paradigm of EU administrative law that is respectful of the rights and legally protected interests of the citizens.

In addition, the restrictive legal approach to participation rights contrasts with the increased resort to participation in EU governance. This book chapter also highlights the contrast between the scope and meaning of more political forms of participation, on the one hand, and participation rights, on the other, and argues that a broader recognition of participation rights contributes to bridging the distance between the configuration of participation in the political realm, on the one hand, and in the legal realm, on the other.

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