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EUROPEAN ADMINISTRATIVE LAW IN THE CONSTITUTIONAL TREATY This book presents an integrated approach to general questions of European administrative law and offers some possible solutions to the problems that it poses, with the Treaty establishing a Constitution for Europe as the point of reference. Under the Treaty, general questions of administrative law are no longer addressed merely in a fragmented or incidental way but as a discipline that governs the exercise of sovereign powers by a supranational entity. This calls for a detailed examination of the fields that comprise European administrative law, and the book therefore examines in some detail the key areas of rulemaking powers and normative instruments, the implications of the Charter of Fundamental Rights for European and national administrations, administrative procedure, and judicial protection within the European Union. Modern Studies in European Law: Volume 12 (A) Nieto Garrido Prelims 31/8/07 15:18 Page i Modern Studies in European Law 1 Soft Law in European Community Law Linda Senden 2 The Impact of European Rights on National Legal Cultures Miriam Aziz 3 Partnership Rights, Free Movement and EU Law Helen Toner 4 National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation Michael Dougan 5 The National Courts Mandate in the European Constitution Monica Claes 6 EU Environmental Law: Challenges, Changes and Decision-Making Maria Lee 7 European Union Law and Defence Integration Martin Trybus 8 Principles of European Constitutional Law Armin von Bogdandy & Jürgen Bast 9 EU International Relations Law Panos Koutrakos 10 Free Movement, Social Security and Gender in the EU Vicki Paskalia 11 The Regulation of the State in Competitive Markets in the EU Erika Szyszczak (A) Nieto Garrido Prelims 31/8/07 15:18 Page ii European Administrative Law in the Constitutional Treaty Eva Nieto-Garrido and Isaac Martín Delgado OXFORD AND PORTLAND, OREGON 2007 (A) Nieto Garrido Prelims 31/8/07 15:18 Page iii Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: www.isbs.com © Eva Nieto-Garrido and Isaac Martín Delgado 2007 Eva Nieto Garrido and Isaac Martín Delgado have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means,without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-512-0 (paperback) Typeset by Hope Services,Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall (A) Nieto Garrido Prelims 31/8/07 15:18 Page iv To my parents and to Ana Beliu and David E. N. G To my family, from whom I learnt everything that I am I. M. D (A) Nieto Garrido Prelims 31/8/07 15:18 Page v (A) Nieto Garrido Prelims 31/8/07 15:18 Page vi Foreword In the year 2006, just as the European Union was planning its 50th birthday party, the powerful and prestigious American Bar Association circulated the first fruits of a major restatement of European Community law. Whether the ABA is a non- profit-making organisation, I am not aware; but it is hardly a philanthropic institution. Why then should this massive project have seen the light of day? One reason is that transatlantic political relationships are becoming closer. We have already experienced joint action in the field of security, with questions raised about legality,as with ‘rendition’ in breach of due process requirements or, in the case of air travellers, their data protection rights. There is a need for policy convergence, raising questions about participation in the EU rulemaking process. No wonder that Americans, faced with the labyrinthine comitology, work towards a European Administrative Procedures Act.Vicious battles have already taken place in the shadow of the WTO, for example, over imports of bananas or the use of hormones in industrial agriculture. At a more mundane level, any nation wishing to do business with the EU is likely to come into contact with the rules of its competition law,central to the evolution of European administrative procedures, and with its public procurement law, both of which have transformed national laws of administrative contract. What these examples have in common is that all touch on central, areas of administrative law. This is in itself good reason for the ABA’s interest. In its 50-year life span,EU administrative law has grown very rapidly to the point where it is capable of influence well beyond the European Union and its Member States. Indeed at a global level, some see the EU system, with its necessary emphasis on the reconciliation of disparate and divergent legal orders, as the prototype for a global administrative law. The only real rival in this field is American administrative law, as no doubt the ABA also realises.Listing its sources,Professor Jurgen Schwarze, doyen of EU public law studies,originally prioritised the jurisprudence of the Court of Justice, though over the years he began to note the extent to which jurisprudence was being overtaken by a substantial body of regulation and ‘soft law’, much of it procedural. The Court’s contribution, which remains significant, rests on flimsy foundations.Paragraph 2 of TEC Article 288 (ex 215),allowed the courts to develop the law in compensation claims ‘ in accordance with the general principles common to the laws of the Member States’.In time this became the basis for the development by the Court of an ambitious set of general principles for an EU public law and procedural norms. From its very inception, therefore, EC law has been dedicated to harmonisation while at the same time out of respect for pluralism and diversity; cross-fertilisation rather than centralisation has been the general rule. This is an area in which administrative lawyers across the European Union should be knowledgeable and open to each other’s ideas.But although it is a subject (A) Nieto Garrido Prelims 31/8/07 15:18 Page vii of great importance, EU administrative law has until fairly recently attracted little sustained academic interest. There are, for example, few academic courses devoted to it and EU public law normally focuses on the institutions, with special reference to the Court. One reason for this may be the emphasis on trade and commerce, which has directed scholars towards the commercial subjects: competition, monopolies and state aids.(The failure to characterise these regulatory processes as a form of administrative law is in itself surprising). Language has also undoubtedly been a major problem. It was several years before Professor Jurgen Schwarze’s epic comparative study of general principles was translated into English, today on its way to becoming the lingua franca of European studies,while the innovative treatise of Professors Mario Chiti and Giorgio Gaja, has, I suggest, been undeservedly pushed to the sidelines because it is available only in Italian. All the more reason then to welcome the present work by two Spanish scholars. This work is emphatically not, however, a student text or straightforward administrative law treatise but something much more original and ambitious. At the heart of the book lie two constitutional texts,which the authors see as central to European public law. The first is the ill-fated Constitutional Treaty, which may or may not come into force. Whether or not it does is not, however, a matter of much moment to the authors. Their interest in the Constitutional Treaty lies mainly in its approach to EU lawmaking. EU lawmaking processes are probably the most complex in existence, while the hierarchy of its legal norms is such as to leave all rational public lawyers (as well as those who need to operate them) in despair. The authors argue strongly for simplification and see the way forward as that proposed in the Constitutional Treaty. This would put in place a structure at European level akin to that found in the Member States. There would be European laws and framework laws and, in addition to the implementing powers that have given rise to the comitology, there would be a power to make delegated legislation. Whether or not the Constitutional Treaty ever proceeds to ratification, these normative instruments, the authors believe, would transform European admin- istrative law. The Charter of Fundamental Rights and Freedoms is the second constitutional text seen by the authors as significant for the future of EU administrative law. Whether or not this will be made binding depends, possibly, on whether the Constitutional Treaty comes into force. However this may be, the Charter will certainly impinge on the EU’s administrative organs and processes as well as on its courts. Focusing on the right to good administration in the Charter, the authors set out to consider what its impact might be. These are difficult and delicate questions, with effects at every level of the complex, multi-level European decision-making process. Is it really going to be possible, for example, to confine the ambit of the Charter to cases where Member States ‘are implementing Union law’? Will there not be an inevitable ‘over-spill effect’, bringing conflicts of jurisdiction such as those which have in the past bedevilled relationships between the Court of Justice and the German Constitutional Court? And will there be new conflicts between the two transnational European courts, Luxembourg and Strasbourg? viii Foreword (A) Nieto Garrido Prelims 31/8/07 15:18 Page viii Transparency in the form of access to official information now figures in the index of nearly all texts on administrative law. A link as yet less commonly recognised is that between freedom of information and data protection. These authors have chosen to highlight the potential clash between rights to know and rights of privacy, placing data protection firmly on the administrative law agenda, where it has not usually featured. This is a matter of the greatest importance at a time when the EU is building giant data banks and making them widely accessible across Member States and,perhaps even less wisely, to states and bodies outside the European Union. It is good too to see that the authors go beyond the Community (or First Pillar) administrative agencies to deal with the accountability of Council agencies and more specifically Europol and Eurojust. If administrative law is about control—and most public lawyers agree that it is—then it must be significant that the competence of the Community Courts in matters of justice and home affairs remains attenuated. As administrative lawyers, we are right to be suspicious in matters of justice and home affairs; they are the more dangerous because they are less well -controlled. To end on a curmudgeonly note, as a British administrative lawyer,born and bred in a common law system, my only dissent from the priorities of my continental colleagues concerns what they call the ‘old issue’of a European code of administra- tive procedures. In recent years, as the practice of harmonisation has evolved through soft law methods and experiments with the Open Method of Coordina- tion, I have been happy to see this hoary old chestnut fall from the agenda, to be replaced by a call from the private lawyers for a European codification of contract law. (Academics must have something to do).I have much sympathy with the work of the European Ombudsman in developing principles of good administration, in seeing them published and in monitoring their implementation.We need,however, to bear in mind the arguments of those who, like Giandomenico Majone, see the legitimacy of the European project as deriving from ‘output legitimacy’. To put this differently, we need to consider whether respect does not depend rather on effective policy-making than on institution-building and constitution-drafting. Surely the lawmaking processes and governance of the European Union are sufficiently sclerotic without a code of administrative procedures as a further target for attack by multinational enterprises and their skilful in-house lawyers? Professor Carol Harlow March 2007 Foreword ix (A) Nieto Garrido Prelims 31/8/07 15:18 Page ix (A) Nieto Garrido Prelims 31/8/07 15:18 Page x [...]... as the competences and tasks assigned to each institution, can be subject to later amendment The key to maintaining the principle of balance of powers in the Constitutional Treaty, specifically with regard to the reform of the Commission contained in the Constitutional Treaty, can be found in the way in which the Parliament has been granted more control over the Commission.78 The strengthening of the. .. and (3) continued supervision for the duration of the term of the Commission To sum up, the Constitutional Treaty tries to maintain the principle of institutional balance of powers, given that the strengthening of the Commission is counteracted by the European Parliament’s increase in political control over the institution 3 Implementing Acts Implementing acts come third in the hierarchy of the Union’s... or a Law of Particulars? A Law on European Administrative Procedure or a Law of European Administrative Procedures? 126 (b) General Considerations regarding the Content of the Law on European Administrative Procedure 131 (c) The Development and Guarantee of the Rights of the Parties in Procedure 132 (d) The Rise of Transparency, Impartiality, Equality and Legal Certainty 133 (e) The Strengthening of... and Acknowledgements The aim of this book is to analyse current problems in European administrative law, many of which are reflected in the on-going reform process of the European Treaties The Treaty establishing a Constitution for Europe has served as the point of reference for this study The provisions of the Treaty contain the seeds of future projections of European administrative law which are currently... States of the Union, which is necessary given the evolution of European administrative law and the multiple procedures used in Community administration The introduction of a legal basis for the adoption of a future European law on common administrative procedure in the Constitutional Treaty, and the express recognition of the right to good administration, are the arguments used in this analysis The fifth... for in Article I-40, on the Council’.84 The test for conferring implementing powers on the Commission imposes stricter requirements than the mandate to the Council contained in Article 202(3) of the EC The strengthening of the subsidiarity principle and the introduction of a new normative instrument as the delegated act makes justifying the implementing power of the Commission more difficult According... Nonetheless, European judicial review is far from being as aggressive as the American version The different foundation of the European judicial system, being based mostly on a civil law tradition, and the negative consequences experienced within the American system may explain this self-restraint In spite of the European courts’ actions, the process of transforming European administrative law is mainly... existing Treaties According to the Conclusions of the Presidency (CONCL 2, 11177/07, Brussels, 23 June 2007) the IGC must draw up a Reform Treaty that will introduce into the existing Treaties the innovations resulting from the 2004 IGC, which drafted the Constitutional Treaty It is expected that the Guidelines to the Constitutional Treaty will provide a blueprint for the drafters of the Reform Treaty. .. powers of the Parliament, which will become the ordinary co-legislator with the Council, and the control that can be exercised over the Commission might reinforce the principle of balance of powers in the Union legal system The Constitutional Treaty gives the Parliament control over the European Commission in three essential ways:79 (1) in nominating the President; (2) in the composition of the College;... of the Reform Treaty For instance, the mandate contained in the Conclusions of the Presidency declares that the terms law and ‘framework law will be abandoned in the new Reform Treaty, but the IGC will maintain the distinction between what is legislative and what is not and the consequences thereof; the European Charter of Fundamental Rights will have binding force; and the current Third Pillar . much moment to the authors. Their interest in the Constitutional Treaty lies mainly in its approach to EU lawmaking. EU lawmaking processes are probably the most complex. detailed examination of the fields that comprise European administrative law, and the book therefore examines in some detail the key areas of rulemaking powers