Administrative Law in Europe : Between Common Principles and National Traditions 9789089521361, 9789089521323

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Edited by Matthias Ruffert

Administrative Law in Europe: Between Common Principles and National Traditions

Europa Law Publishing

Administrative Law in Europe: Between Common Principles and National Traditions

Europa Law Publishing, Groningen 2013

Administrative Law in Europe: Between Common Principles and National Traditions Edited by Matthias Ruffert

European Administrative Law Series (7)

Europa Law Publishing is a publishing company specializing in European Union law, international trade law, public international law, environmental law and comparative national law. For further information please contact Europa Law Publishing via email: [email protected] or visit our website at: www.europalawpublishing.com. All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, or stored in any retrieval system of any nature, without the written permission of the publisher. Application for permission for use of copyright material shall be made to the publishers. Full acknowledgement of author, publisher and source must be given. Voor zover het maken van kopieën uit deze uitgave is toegestaan op grond van artikel 16h t/m 16m Auteurswet 1912 juncto het Besluit van 27 november 2002, Stb. 575, dient men de daarvoor wettelijk verschuldigde vergoedingen te voldoen aan de Stichting Reprorecht (Postbus 3060, 2130 KB Hoofddorp). Voor het overnemen van (een) gedeelte(n) uit deze uitgave in bloemlezingen, readers en andere compilatiewerken (artikel 16 Auteurswet 1912) dient men zich tot de uitgever te wenden. © Europa Law Publishing, the authors severally, 2013 Typeset in Scala and Scala Sans, Graphic design by G2K Designers, Groningen/Amsterdam NUR 828; ISBN 978-90-8952-136-1 This project has been funded with support from the European Commission.

The European Administrative Law Series hosts academic publications related to the development of European administrative law. The series aims to cover all aspects of European administrative law, reflecting the role of the European Union, the role of domestic legal orders and their mutual relation and influence.

Acknowledgements The Dornburg Research Group on New Administrative Law is proud and happy to present a new collection of papers. The Group met for a fourth time after 2005 (Dornburg), 2007 (London) and 2009 (Paris) and came back to its roots to Dornburg Castle, near Jena (for a touristic website which is worth visiting: http://www.dornburg-saale.de/pages/dornburger-schloesser.php) in May 2012. This time, it was decided to treat a methodological subject in addressing the divergent national traditions in administrative law. This year’s special gratitude of the editor go to my (now partly former) assistants Carolin Damm, Dr. Katja Frey, Dr. Enrico Peuker and Dr. Angela Schwerdtfeger for the brilliant organisation of the conference and the effort in bringing together all the papers in written form. It is a pleasure to thank Anna Riddell, London, for the excellent copyediting (now for the third time!) and Prof. Dr. Jan H. Jans and Drs. Jacqueline Lensink on behalf of Europa Law Publishing for hosting our Group in its impressive European Administrative Law Series. Special thanks go to my secretary, Susanne Prater, who, as always, linked all necessary efforts in organisation and publication. The conference and the publication were funded by the Jean MonnetProgramme of the European Union in the framework of my Jean Monnet-Chair ‘The Administrative Law of the Integrated European Administration’ – I am very grateful, also on behalf of the whole Group. Matthias Ruffert Jena, summer 2013

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contents

Contents About the Authors

vii xiv

chapter 1 Administrative Law in Europe: Between Common

Principles and National Traditions Eberhard Schmidt-Aßmann



1 Some Explanations to the Key Terms 1.1 Administrative Law in Europe 1.2 National Traditions 1.3 Common Principles 1.4 Ambiguities of the Question (‘Between’): Exchange and Interaction 2 Some Reflections on Possible Questions within the Subject 2.1 A Pattern of Analysis: Twelve Fields 2.2 Horizontal Processes of Exchange: The Central Role of Historically-Informed Administrative Legal Comparison 2.2.1 The Autonomy of Administrative Legal Comparison 2.2.2 Patterns of Exchange Processes: From ‘Families of Law’ to ‘Common Learning’ 2.3 Vertical Processes of Exchange: National Traditions and Common Principles in EU Administrative Law 2.3.1 Creation of Law in an Association 2.3.2 Implementation of the Law Between Innovation and Conflict

3 3 4 5 6 7 7 8 9 10 11 11 13

‘National Traditions’: Obstacles to a Common Legal Framework? – National Perspectives chapter 2

‘Tradition’ in English Administrative Law

Andrew Le Sueur



1 2 3 4 4.1 4.2 4.3 4.4 4.5 4.6 5 5.1

Defining Tradition The Politics of Tradition Tradition in a Fast-Changing Society Communities of Tradition National tradition The General Public The Executive The Judiciary The Legislature The Commonwealth Two Overarching National Traditions Norms Made Through Cases

19 20 21 23 23 24 25 26 27 27 29 29

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administrative law in europe: between common principles and national traditions



5.2 6

chapter 3

No Strong Concept of the ‘the State’ Preservation and Disposal of Tradition

30 32

National Traditions in French Administrative Law Pascale Gonod



1 Reference Points Traditions 2 The Subject of the Study: National Traditions in French Administrative Law 3 Telltale Cases of National Traditions in French Administrative Law 3.1 Case 1: Heritage as a Barrier to Change 3.2 Case 2: Frontal Opposition Between Two Legal Rules: ‘European Domain vs. National Traditions’

35 38 39 39 42

chapter 4 German Traditions in Administrative Law. Obstacles to a

Common Legal Framework? Jens-Peter Schneider



1 Introduction and Overview 2 German Traditions in a Historical Perspective 2.1 The Founding Period During the Belle Époque of National Administrative Law in Europe 2.2 The Fundamental Crisis During the III. Reich 2.3 Re-Founding of German Administrative Law under the Basic Law 2.4 Modernisation of German Administrative Law in Reaction to New Political and Administrative Challenges 2.5 New Forms of Administrative Action: Planning Law 2.6 Codification of Administrative Procedural Law 2.7 New Standards for Administrative Intervention and Participation: Environmental Law 2.8 New Forms of Administrative Discretion: Risk Regulation and Economic Regulation 2.9 New Forms of Cooperation Between Administrative Authorities and Private Parties 2.10 Acceleration of Administrative Procedures 2.11 New Forms of Administrative Information Management and Communication 2.12 New Forms of Transnational Cooperation Between Administrative Authorities 2.13 Interim Result 3 Potential Conflicts in the Process of Europeanisation of German Administrative Law

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51 51 51 54 54 56 56 57 58 59 60 60 61 62 62 62

contents



3.1 Specific Conflicts 3.2 A General Conflict Caused by the Fragmented Nature of EU Law

62 64

chapter 5 Cultural Traditions and Policy Preferences in Italian

Administrative Law Roberto Caranta

1 Introduction 2 Diritti Soggettivi and Interessi Legittimi 3 Discretion 4 Eccesso di Potere and Legality Review 5 Conclusions

69 71 75 78 82

chapter 6 Spanish Administrative Traditions in the Context

of European Common Principles Andrés Boix-Palop



1 Methodology: How do we Define a ‘National Tradition’ in Public Law? 2 Spanish Law and Spanish Culture in the European Context 2.1 Spanish Law and Spanish Law in Europe 2.2 Spain and the European Promise 2.3 Receptivity and Resiliency of Spanish Law 3 Main Characteristics of the Spanish Legal System in Twelve Selected Fields 4 Hypothesis of Identification of Some Spanish Administrative Traditions

85 86 86 88 90 91 94

chapter 7 What about Integrity? National Traditions of Registration

and Transparency Gunilla Edelstam

1 Introduction 2 Traditions and Principles 2.1 Tradition 2.2 Principle 3 National Legal Traditions of Registration and Public Access 3.1 National registration 3.2 Public Access 4 Integrity 4.1 Constitution 4.2 Ordinary Law 5 Concluding Remarks

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103 103 103 105 107 107 110 113 113 115 119

administrative law in europe: between common principles and national traditions

Traditions and European Administrative Law chapter 8

I us Publicum Europaeum: Divergent National Traditions or Common Legal Patrimony? Giacinto della Cananea



1 Commonality of Private Law v. Nationality of Public Law? 125 2 The Frailty of the Conception of Public Law as a National Enclave 127 2.1 Savigny’s Thesis of Roman Private Law as the Only Common Legal Framework in Europe 127 2.2 Hegel and Public Law as the Product of the State 129 2.3 Dicey and the Antithesis between National Constitutional Traditions: Strength and Weaknesses 131 3 From Doctrines to Legal Realities 134 3.1 National Norms and Mentalités: Separation of Powers 134 3.2 A Parallel Development: From the Immunity to the Liability of Public Administrations 139 3.3 Common Constitutional Traditions (I): Audi Alteram Partem 142 3.3 Common Constitutional Traditions (II): Parliamentary Consent to Taxation 144 4 The Rediscovery of the Common Legal Patrimony Within the EC/EU 146 4.1 The Early Years of the Jurisprudence of the European Court of Justice (ECJ) and the Revitalization of the ‘Ius Publicum Commune’ 146 4.2 The EU Treaty, Common Constitutional Traditions, and National Identities 148 5 Ius Publicum Commune: A Vital Concept 150 chapter 9

EU Administrative Law and Tradition Paul Craig

1 Introduction 2 Source and Inspiration 3 Status and Hierarchy 4 Principle and Purpose 5 Individual Protection and Administrative Efficacy 6 Geographical Reach and Administrative Diversity 7 Conclusion

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153 155 155 157 160 163 164 171

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chapter 10 New Public Management: A New Common European

Tradition

Athanasios Gromitsaris

173

1 Tradition, Reproduction and Deviation 2 New Public Management: A Stranger in the House of Public Law 3 NPM-Impact on the ‘Genetic Code’ of European Administrative Legal Systems 3.1 Administrative Law’s Autonomy 3.2 Administrative Tasks 3.3 Administrative Organisation 3.4 Administrative Legitimacy 3.5 Administrative Statutes 3.6 Criteria of Administrative Action 3.7 Legality of Administrative Action 3.8 Administrative Discretion 3.9 Forms of Administrative Action 3.10 Administrative Communication 3.11 Administrative Controls 3.12 Administrative Courts 4 Public Law as an Impediment to and a Tool for NPM-Led Change 4.1 Constitutional Law and Established State Structures 4.2 Civil Service Law 4.3 The Pendulum Experience: Privatisation and Re-Municipalisation 4.4 Re-Municipalisation and Competition 5 Efficiency as a Legal Concept 6 Culture of Assessment of Government Policy by Independent Agencies 7 NPM and Public Sector Reform in the Crisis-States of the Euro-Area 7.1 Tax Law 7.2 The Promise of Growth without Deficit Spending 8 Concluding Remarks

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175 177 181 181 182 182 184 185 185 187 188 190 190 191 192 193 193 194 195 198 200 202 204 204 206 209

administrative law in europe: between common principles and national traditions

Results and Perspectives chapter 11 Common Principles and National Traditions: Which

Perspective for European Administrative Legal Scholarship? Matthias Ruffert

1 Introduction 2 National Traditions: The Heart of Administrative Law? 2.1 Civil and Public Law 2.2 Politics and Historical Contingencies 2.3 Tradition Shaping in the Long 19th Century 3 Elements of Tradition 3.1 National Traditions 3.2 Common Traditions 4 Trends against Tradition 4.1 Europeanisation 4.2 New Public Management – and the Counter Movement 4.3 Receptiveness to Foreign Influences 5 Outlook

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215 216 216 216 218 218 218 218 219 219 219 220 220

About the Authors

administrative law in europe: between common principles and national traditions

Giacinto della Cananea is Professor of Administrative Law and European Administrative Law at the Faculty of Economics, University of Rome “Tor Vergata”. Roberto Caranta is Professor of Administrative Law at the University of Torino. Paul Craig is Professor of English Law, St John’s College, Oxford. Dr. Gunilla Edelstam is Associate Professor, Södertörn University, Huddinge, Sweden. Andrés Boix-Palop is Administrative Law Senior Lecturer, Universitat de València – Estudi General de València. Pascale Gonod is Professeur à l‘Université de Paris 1, Panthéon-Sorbonne, Membre de l’Institut universitaire de France. Athanasios Gromitsaris is Associate Professor of Public Law, FriedrichSchiller-University Jena. Eberhard Schmidt-Aßmann is emeritus Professor of Public Law, RuprechtKarls-University Heidelberg. Jens-Peter Schneider is Professor of Public Law, University of Freiburg (Germany). Andrew Le Sueur is Professor of Constitutional Justice, University of Essex. Matthias Ruffert is Professor of Public Law, European Law and Public International Law, Friedrich-Schiller-University Jena.

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chapter 1

Administrative Law in Europe: Between Common Principles and National Traditions Eberhard Schmidt-Aßmann

chapter 1

administrative law in europe: between common principles and national traditions

Administrative Law in Europe: Between Common Principles and National Traditions – A challenging subject! The broad key notions, the variety of dimensions, and the ambiguity of the question indicated (‘between’) are fascinating. My introductory presentation is therefore limited to illustrating the complexity of the subject. The following three aspects shall be dealt with: first of all, the key concepts of the subjects (1), and in a second part the meeting of national traditions and the common principles, at first ‘horizontally’ in a comparative dimension (2.2) and then ‘vertically’ in the framework of the administrative law of the European Union (2.3).



1 Some Explanations to the Key Terms

I shall start with some explanations to the key terminology ‘administrative law in Europe’, ‘national traditions’, and ‘common principles’.



1.1 Administrative Law in Europe

Five layers of the law will be considered: 1. National administrative law in the various countries of Europe. This is a mixture of statutes, court decisions and doctrine– in quantitative terms the standard law which is applied by public authorities all over Europe today. 2. Administrative law created by the Council of Europe, which can be found particularly in numerous recommendations of the Council of Ministers but also in the jurisprudence of the European Court of Human Rights (in particular on Article 6 of the European Convention on Human Rights). An example of this layer of administrative law is the ‘Recommendation on Good Administration’ of 2007. 3. The Ius Publicum Europeaum – as a creature of administrative legal scholarship drawn from constitutional history and comparative studies, of uncertain content and unclear limits, but with a high ideational value. 4. The administrative law of the European Union (with both of its sectors, the law of direct administration and the law of indirect administration) as a law of a composite, integrated administration, vested, in addition to traditional tasks of administrative law, with a special mission to guarantee the effective application of the law within the whole administrative space of the EU and which is consequently devoted in particular to the idea of ‘effet utile’. 5. International administrative law composed of the administrative legal rules drawn from public international law treaties, such as the Geneva Refugee Convention or the Aarhus Convention, becoming more and more important as an independent layer of law.1 They establish a link between European law and 1

M. Ruffert, ‘Rechtsquellen’, in W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds), Grundlagen des Verwaltungsrechts (2nd ed. Beck 2012) Volume 1 § 17, 149 ff.

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administrative law in europe: between common principles and national traditions

global developments,2 and they are preventing European administrative law from adopting the same parochial orientation that today is often criticised with respect to national administrative law systems. 6. Short general characterizations The conditions of creation within these five layers of the law are different, as is the geographical scope of application; Europe is specifically defined legal space.3Finally there is a difference in the mechanisms of their interaction: sometimes following rules of supremacy like in EU law, sometimes following duties to implement from public international law, sometimes just following the persuasive power of the ‘better solution’ in comparative law. What cannot be overlooked are certain common features of the five layers of law: • All of them are searching for an adequate adjustment between the implementation of public interests and the protection of individual rights. • All are aware of general principles next to concrete rules. • All are recognising, next to the ‘hard’ issues of legislative acts and court decisions, a constitutive role for administrative legal scholarship and its systematisation.



1.2 National Traditions

The notion of national traditions cannot easily be grasped. 4 The limits to neighbouring concepts such as ‘administrative practice’, ‘usage’, and ‘custom’ are vague. In the legal language of the European States national traditions seem to have differing levels of importance: whereas in France – as Pascale Gonod shows in a contribution to this volume – they are present as ‘tradition républicaine’ or ‘tradition juridique française’, the term cannot be found in Germany.5 1. Generally, ‘national traditions’ can be defined as values, ideas and patterns of action that have been performed for a long time and which are legitimized particularly by their usage. They give ‘profile’ to a subject matter. Emotionally, they indicate positively towards ‘reliability’ and ‘solidity’, and negatively towards ‘backwardness’ and ‘hostility to reforms’. At closer view they appear to be constructs drawn from history (diachronically) or comparison (synchronically). 2

For the relevance of globalisation to public law see Ruffert, Die Globalisierung als Herausforderung an das Öffentliche Recht, Stuttgart et al 2004; J-B Auby, La globalisation, le droit et l´Etat (2nd ed. Montchrestien 2010).

3

For the idea of an European legal area, concentrated on the scope of the EU law, see A. von Bogdandy, in A. von Bogdandy, A. Cassese and M. Huber, Ius Publicum Europaeum (IPE), Vol. 3 (2010), § 42 1 ff.; for the idea of an European administration area see E. Schmidt-Aßmann, in: Schmidt-Aßmann/HoffmannRiem, Strukturen des Europäischen Verwaltungsrechts (1999) 10 (12 ff.).

4 5

Cf. Gonod in this volume.

Which does not mean that an orientation towards traditional values or suggestions cannot be found here, in a term like ‘freiheitlich-demokratische Grundordnung’ or in the term of ‘institutionelle Garantie’, indeed in both cases rather based on historical development than on normative recognition.

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administrative law in europe: between common principles and national traditions

Politically they are often part of a combat vocabulary in a ‘rhetoric of tradition’, which either criticises national traditions as obstacles to innovation or as fortresses of national identity against ‘foreign infiltration’. 2. Particularly in administrative law, national traditions can be • determined by different forces: by administrative practice, by courts, by administrative legal scholarship, by dominant political leading concepts, by ideologies, and by the expectations of the population, • and they can be related to different parts of the legal system: the institutional design, the basic values, the concrete legal institutions, and the selfperception of the subjects within the system. I intend to submit that national traditions must be considered on a middle level of abstraction, and that we should seek traditions which determine the structures. Such traditions are concerned with the basic questions of an administrative legal system, e.g. judicial review, public service, self-administration, or the role of ombudsmen. Usually they are a mixture of normative prescriptions, becoming concrete through court practice and their dogmatic analysis by scholarship. Their effects are far-reaching – directly or indirectly – in administrative practice, e.g. in the perception of administrative discretion, in procedural law or in the law of the civil service. They form the ‘administrative culture’ of a country and are thereby part of the deeper layers of the collective awareness. In a purely domestic consideration they therefore often remain unconscious, and it is only comparative law which renders them visible.6 National traditions are clearly not ‘stand-alone concepts’, but can only be considered in relation to others. If we identify traditions, we think in comparative ways – as far as traditions of the law are concerned in comparative law.



1.3 Common Principles Now for the third key notion of our subject, the ‘common

principles’: 1. Principles in this sense are ‘basic sentences of orientation’.7 Their attribute is a certain ‘openness’ which manifests itself as vagueness at the edges of the notion and in its ability to adopt new content. To be more precise, there are principles of structure which have an arranging function, guiding principles that anticipate a trend of development or legal principles that determine the application of the law.8 Principles may either be deduced from higher 6

C. Schönberger, in IPE IV § 71 (n 3) 22: ‘Only the observation of a foreign scientist challenges mattes of course from a national perspective’, (In fn. 72 with reference to Persmann’s term of ‘interprétation conceptuelle différenciée’).

7

See, Sommermann, ‘Prinzipien des Verwaltungsrechts’ in IPE V § 86 (n 3) 2.

8

Cf. A. von Bogdandy, ‘Prologomena zu Prinzipien internationalisierter und internationaler Verwaltung’, in H.-H. Trute/T.Groß/H.-C.Röhl/C.Möllers, Allgemeines Verwaltungsrecht – Zur Tragfähigkeit eines Konzepts (Tübingen 2008) 683 (692 f).

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administrative law in europe: between common principles and national traditions

ranking requirements, e.g. from the history of political ideas and human rights pacts, or may be derived from comparative analysis of a multitude of detailed rules of positive law. 2. Common principles are the principles that are effective in the European legal space. The particular role of historically influenced comparative law scholarship becomes apparent for a second time. There is a common culture of administrative law and of its scholarship in Europe which is based on constitutionalism as a common European phenomenon.9 a) Many common principles are gained by a recursive method in which principles developed by comparison have had an impact on the advancement of national administrative law, thereby being refined and afterwards re-imported to the European level.10 The broadening of the common ground can be shown by the recommendation of the European Council ‘on good administration’ quoted above.11 Principles that are self-evident for national administrative law such as legality, equal treatment, proportionality, impartiality, transparency and a line of procedural protective mechanisms are also designated as common principles. b) On the other hand, tensions between the common principles and national law cannot be overlooked. This mainly results from the above-mentioned ‘openness’. They are particularly high with respect to ‘common principles’ which are ‘different’ and ‘new’, or adopt contemporary political theories unfamiliar in the domestic legal system. Principles are receptors of a broad discourse which is not only dogmatic. Thus, ideas of liberalism, of the welfare state, of market economy, of management theories or of global governance are introduced into the concepts of administrative law and lead to confrontation with national traditions that have a different focus.



1.4 Ambiguities of the Question (‘Between’): Exchange and Interaction

It is therefore evident that relationship between national traditions and common principles is ambivalent: On the one hand, they are complementary, inspiring and supplementing each other. On the other hand, it is a relationship of conflict, in which stability and flexibility are juxtaposed with each other. A study of the past 200 years shows us that administrative law in Europe has always developed by interaction between general and special, between theoretical innovation and practical tradition, between ideas spread all over Europe and concrete national needs. Periods of ‘openness’ and periods of ‘seclusion’ have followed one another. This feature is not new, but impacts upon our consideration of the topic today. The topic of this chapter, with its ambivalent formulation 9

P. Schiera, in IPE (n 3) IV § 68 1.

10 11

See A. Cassese, in IPE (n 3) III § 41 39, ‘zyklisches Verfahren’.

Similar to Sommermann (n. 7) 53.

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administrative law in europe: between common principles and national traditions

‘between’ urges us to do so. It is about dynamics of exchange between legal systems.12



2 Some Reflections on Possible Questions within the Subject

In what form do such processes of exchange take place? Who gives the impetus, who is the recipient? What limits must be observed? On the horizon of the European administrative space – are there convergent or divergent developments? What traditions should be preserved, what reforms must be undertaken regardless? In systematic terms, these questions are at the point of intersection between administrative law history, comparative administrative law, and administrative law policy. Three aspects will be elaborated upon below: first of all, a pattern of analysis will be presented that relates national traditions to common principles and shows options for development (2.1). Next, a ‘horizontal’ analysis of the key role of administrative law comparison for Ius commune europaeum is undertaken (2.2). Finally ‘vertical’ analysis of the particular developments of national traditions within the framework of EU administrative law will be given (2.3).



2.1 A Pattern of Analysis: Twelve Fields

What are the most complex fields of conflict between national traditions and common principles? Again, the aforementioned concepts and the importance of comparative law for the profiling of traditions must be considered. It is on the ‘conflicts of concept’ that I will focus, naming twelve fields and indicating(with the formulation of ‘between’) the range of possible variations defining comparative law discussions today: • Administrative law: between conservation of its autonomy and constitutionalisation, between ‘juristic method’, system thinking and case law, between legal dogmatics and governance ideas. • Administrative tasks: between regulation of private economy, ‘guaranteeing administration’ (Gewährleistungsverwaltung) and comprehensive administrative Daseinsvorsorge (public service). • Administrative organisation: between centralisation and decentralisation, between unity and plurality, between hierarchical considerations and autonomy, between ministerial instructions and independent authorities. • Administrative legitimacy: between formal ‘chains of legitimacy’ and a pluralist view of legitimacy. • Administrative statutes: between particular law and codification. 12

See M. Ruffert, in E. Schmidt-Aßmann and W. Hoffmann-Riem (eds) Methoden der Verwaltungsrechtswissenschaft, (Baden-Baden 2004) 165 ff.

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administrative law in europe: between common principles and national traditions

• Criteria for administrative actions: between legality, efficiency, acceptance and ‘other normative orientations’. • Legality of administrative action: between procedural and substantive concepts of legality. • Administrative discretion: between a standard institute and a side issue. • Forms of action: between public and private law, between unilateral action and ‘contractualism’. • Administrative communication: between secrecy, transparency and participation. • Administrative controls: between courts, particular tribunals and ombudsmen. • Administrative courts: between monist and dualist organisation, between the protection of individual rights and objective interests, between the control of administrative procedures and complete substantial control of the application of the law. Taken together, these fields form the common code of all European administrative legal systems. The specific profile of national administrative law becomes apparent only if the respective positions, the ‘markers’, are considered that it has left on the different spectra. In systematic terms this can be shown in the form of a matrix. It is only by such a matrix that a reliable picture of the convergences between the administrative legal systems in Europe, that are often described and doubted, can be drawn. It is this matrix that can indicate what positions are important for which reasons for a single legal system and thus have to be conserved. However, we do not want to approach research tasks in a systematic way, but rather to add a general observation: marginal positions in the sense of clear radical options are rarely adopted in the spectra. We are rather confronted with a mix of approaches, varying from country to country: there are at least traces of constitutionalisation, even where, as in France, the autonomy of administrative law is traditionally stressed. The importance of further factors of legitimacy is also recognised by those who, like the German Bundesverfassungsgericht, begin from a strictly formalised theory of legitimation. A European codification of administrative procedure does not face categorical objection any longer, even in places where codifications are traditionally viewed with suspicion. Striking characterisations – if they ever had an eliminating sense – are no longer useful today.



2.2 Horizontal Processes of Exchange: The Central Role of Historically-Informed Administrative Legal Comparison

The preceding reflections have already shown the central role of comparative law for our subject. We become aware of traditions only by comparison and options for solutions are only developed by applying the comparative method. The last 200 years has shown that administrative law, as with any other field of law – at least on the continent, has evolved as a scientifically permeated 8

chapter 1

administrative law in europe: between common principles and national traditions

field of the law thanks to comparative law.13 This is represented by names such as Robert von Mohl, Otto Mayer, Vittorio EmanueleOrlando, Gaston Jèze, also John B. Mitchell, 14 Harold Laski15 and Carl Axel Reuterskiöld. 16 The core period in this development in the decades before the First World War has recently been described as the belle époque of modern administrative law.17 The thesis that administrative law was shaped in particular by national particularities cannot be upheld from a historical perspective –without propounding a down-levelling, unitary view.18



2.2.1 The Autonomy of Administrative Legal Comparison

It can also no longer be validly stated that administrative legal comparison follows in the wake of civil law comparison.19Important works published only recently are proof of the autonomy of administrative law comparison. To mention only a few: Sabino Cassese’s (seminal) ‘La construction du droit administrative. France et Royaume Uni’ (2000), Michel Fromont’s ‘Droit administrative des Ètat s européens’ (2006) Jens-Peter Schneider’s ‘Verwaltungsrecht in Europa’ (two volumes, 2007 and 2009) and now the magnum opus ‘Ius Publicum Europaeum’, edited by Armin von Bogdandy, Sabino Cassese and Peter Michael Huber (two volumes on administrative law, with another one planned). PhD theses with comparative questions (mostly bi- or trilateral) are very popular in law faculties nowadays; with subjects like ‘administrative procedure’ and ‘administrative law protection’, comparison is now part of scholars’ etiquette. All in all, there is no need to lament a perceived inferiority of administrative legal comparison with respect to private law.’20 In recent legal literature, which analyses the conditions of legal comparison in both private law and public law in a comparative way, the particular sensibility of public law is stressed, which is on the one hand due to the historico-political structure of legal systems and on the other to the dynamic challenges faced by public administration in particular.21This is also an important indication for the ability of reception and obstacles to reception within national legal systems: 13

Cf., Schönberger, in IPE IV § 71 1 and 31 ff. Bell, in M. Reimann/R. Zimmermann (eds), The Oxford Handbook of Comparative Law, (OUP 2007), 1257: ‘Comparative administrative law is a long-standing discipline’, 1260. Regarding France Chrétien in IPE IV § 59 57.

14 15

Cf. T. Poole, in IPE IV § 60 17.

Ibid, 12.

16 17

Cf. G. Edelstam, in IPE IV § 64 21.

O. Jouanjan, in IPE IV § 69.

18

On the contrasting positions of the so-called ‘Differenzideologie’ and ‘Ähnlichkeitsideologie’ see Schönberger, in IPE IV § 71 17 ff.

19

See ibid, 4 ff.

20 21

Ibid, 15.

Ibid, 16: ‘specific combination of historical deep structure and nervous surface’. Cf. the quite similar dualism of M. Fromont, in IPE III § 55 5 ff. ‘Verwaltungsorganisation und Staat-Bürger-Verhältnis als die Strukturmerkmale von Verwaltungsrechtstypen’.

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administrative law in europe: between common principles and national traditions

• Where there are settled historico-political experiences, in the institutional field, especially in questions of administrative and court organisation and concerning the structure of the civil service, there are obstacles to reception – not only traditional but also functional ones. The law of organisation is a law of contextual steering. The effects of modifications in this field can be foreseen only with great difficulties. This requires caution towards an orientation directed to new common concepts, particularly regarding the ‘European megatrend’ of independent agencies as designated, described and assessed in critical comparison by Matthias Ruffert.22Where new tasks have to be mastered, i.e. where we are dealing with patterns of action, procedures, standards for government and protection of legal interests of the citizens, we can expect more flexibility. The common ground of the challenges upon which all European legal systems have to react is stressed here. Here, global or at least transatlantic policy aims (deregulation, privatisation, new public management) are developing their driving force. It is up to national administrative law to react with adequate solutions. Comparative legal activity is suggested here; it becomes part of a strategy to master these challenges. • A mid position is taken by the dogmatic structures of the law, e.g. questions of individual rights or of the categories of administrative discretion. They are creations of scholarship in which a particular openness towards innovation should be expected. Despite this expectation, it is these that most often prove to be enduring.



2.2.2 Patterns of Exchange Processes: From ‘Families of Law’ to ‘Common Learning’

To arrange comparative legal material, it is popular to use the idea of ‘families of law’. Such families of law are also inductive of existing processes of exchange and existing relationships of proximity between legal systems. The idea of such ‘families’ descends from civil law comparison, but it is by no means uncontested there. In administrative law it is scarcely helpful – at least in the European area. Of course it is possible to shape certain ‘groups’. Thus, Michel Fromont differentiates three groups in Europe and relates them to three ‘modèlesmajeurs’: a modèlefrançais, a modèleallem and a modèleanglais.23 This is all less fixed in administrative law compared to civil law. It is clear that the greater importance of the institutional framework prevents the establishment of families with a rather unitary profile. Let us remember our deliberations in Paris concerning questions of legitimacy.24 22 23

M. Ruffert, in H.-H Trute T. Groß, H. C Röhl and C. Möllers (eds) (n 8) 431 ff.

Michael Fromont, Droit administrative des Ètats européens, (Themis, PUF, 2006) 13 ff.; and Fromont in IPE III § 55, 22 ff. In his opinion there are also administrative law systems, that do not fit exactly in this triad ie Spain, Portugal, Sweden, Finland, 48 ff.

24

M. Ruffert, Legitimacy in European Administrative Law: Reform and Reconstruction (Europa Law Publishing 2011) cf. only 360 ‘convergence which appears to be somehow rather limited’.

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In the past it was just singular concepts, e.g. the ‘modèle of Conseil d’Etat’ that could have exemplary function, were adopted by others and became part of the‘ family foundation’. Legal transplants however are by no means taken from ‘model creating’ great legal systems only, but also from smaller jurisdictions. The Austrian administrative procedural code or the Swedish ombudsman may demonstrate.25 All in all, the notion of ‘transplant’ – as well as that of ‘family’ – seem to be scarcely helpful in today’s Europe. In medical science we know that transplants may trigger immunity responses. The situation in administrative law is similar. All European jurisdictions are advanced legal systems or they would at least conceive of themselves as such. It is not part of their self understanding to adopt something from another system ‘horizontally’. Transplants are no longer an adequate form of transfer. What is needed are arguments for a ‘regulatory’ or ‘institutional choice’. The modern form of transfer should be ‘common learning’.26 In this respect, the family metaphor leads to a critical remark: It is these ‘family fathers’ (France, the UK, Germany) that have to take care to remain open to learning: in the first three decades after the Second World War this was not considered to a sufficient extent in these countries– to exaggerate slightly: in France because of a desire to have the best of all administrative laws, in the UK because it was directed in a dominant way towards the Commonwealth, and in Germany because of nationally focused interests. Italy and later Spain and Poland, have traditionally appeared to be more open.



2.3 Vertical Processes of Exchange: National Traditions and Common Principles in EU Administrative Law

Under the roof of the European Union, the processes of exchange between national traditions and common principles are concentrated in a significant way.27 They become more complex and they become reliable. They become more complex as, next to horizontal exchange, there is also a ‘vertical’ and a ‘diagonal’ exchange: From Brussels to the member states and viceversa; but also via Brussels from member state to member state. They become more reliable as they are pushed by particular instruments of supranationality and because they are subject to special requirements of multilevel administration, in particular the principle of ‘effet utile’. The national traditions on the one hand serve as sources and on the other as adversaries of EU administrative law.

25

Cf. Schönberger, in IPE IV § 71 25 and n. 82.

26

With regard to the example of current Franco-German exchange relationships E. Schmidt-Aßmann/ S. Dagron, ZaöRV 67 (2007), 395 ff.; the same in RFAP 2008, 525 ff. Critical on this point Chrétien, in Ruffert, (n 24), ff.

27

Cf. J. Schwarze, Europäisches Verwaltungsrecht (Nomos 1988, 2nd extended ed. 2005); T. von Danwitz, Europäisches Verwaltungsrecht, (Springer 2008) 11 ff.

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administrative law in europe: between common principles and national traditions



2.3.1 Creation of Law in an Association

The administrative law of the EU is not a creation ex nihilo. There were quite precise ideas of what administration and administrative law should be in the legal systems of the founding member states of the European Coal and Steel Community and the European Economic Community, that were taken as starting points. The normative recognition of this insight is Article 340 (2) TFEU (with the same wording as Article 215 (2) EEC): the extra-contractual liability of the Union should develop along the ‘principles common to the legal systems in the member states’. This requires that the institutions of the union take notice of national traditions and deal with them in a certain way. Nevertheless, recourse to the member states legal systems does not mean that all existing rules should be compared and only the common substance should be adopted.28 It was clear from the beginning that this was a procedure of evaluation considering the very aims of the Treaties and the particularities of the structure of the Community.29 We expect that judgments of the ECJ and opinions of the advocates-general are informed by comparative law.30 Legislation in the European Union is preceded by comparative studies.31They have a dual purpose: On the one hand, they show potential to follow models; on the other hand they serve as an early warning system for obstacles to future implementation within the jurisdictions of the member states. Often the examples for EU law are taken from sources other than member states legal systems, e.g. US legal thinking, recommendations of the OECD or global policy preferences. National traditions thus could be the starting point, the material substance of, or the perspective of administrative law of the EU. However, EU law is not a mere amalgamation of the national jurisdictions. It is an autonomous law following its self-espoused aims and duties. At any rate, the adaptation of national legal principles and institutions into the administrative law of the EU cannot be considered as a linear or monocausal development. Quid quid recipitur ad modum recipientis recipitur.32 The ECSC Treaty did not adopt the French system of judicial review as such but transplanted the causes of action to a newly-established completely independent court. The same is true for the reception of the principle of proportionality which is attributed to the German legal tradition: Today it is used as a standard by the ECJ and many member states, but the intensity of scrutiny which is decisive is different,33 because the ideas of the role of courts and the law towards politics remain different. 28

Cf. H. von der Groeben/J. Thiesing/ C.-D. Ehlermann (eds) Kommentar zum EU-/EG-Vertrag (5th ed. Nomos 1997) Art. 215, 12.

29 30

Cf. Advocate-General Roemer EuGH Slg. 1971, 990.

Cf. M. Ruffert, ‘Hat die Europäisierung des Verwaltungsrechts Methode’, in: Axer et. al. (eds) Das Europäische Verwaltungsrecht in der Konsolidierungsphase, DV supplement 10 (2010) 205 (210 f.).

31

Cf. I. Härtel, Europäische Rechtssetzung, (Springer 2006) § 17 2 ff.

32 33

See Schönberger, in: IPE IV § 71 marginal no. 30 referring to Thomas von Aquin.

Cf., Knill/Becker, DV 36 (2003) 447 ff.; Schwarze, (n 27) 661 ff.

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A particular problem in this context that cannot be extensively treated here is language, i.e. the creation of a terminology and systematic congruity 34 which is comprehensible transnationally in a composite of 27 states. A thorough analysis would have to critically access the practice of the EU commission, to elaborate drafts of legal acts initially in only one working language (French or English) and to consider the distortions in perspective that arise from this as a structural problem.35



2.3.2 Implementation of the Law Between Innovation and Conflict

Whatever the way EU law might have been created – from member states examples, from impulses of treaty law or from global policy ideas – it is vested with supremacy with respect to national law in its traditions and with the consequential duties of Article 4 (3) TEU.36 The ECJ decreed this supremacy fairly early, and the national courts have accepted it with certain restrictions. At any rate, supremacy determines administrative practice throughout: any opposing national law is rendered inapplicable, existing law is to be interpreted in conformity with EU law, and new law is to be created if directives indicate a need for legislation. a) The supremacy of EU law has turned out to be a rigorous force of permanent modification of national administrative law which goes far beyond the effects of the comparative law ‘horizontal’ path of innovation that depends upon the persuasive power of its models.37 Also, sensitive areas of national law have not been saved: environmental law, public procurement law, law of State subsidies, the law of public companies. In this context, above all the aims of openness of files, transparency, participation and self regulation (in a limited way) and generally the autonomous standing of administrative legal procedures have been brought forward, often however with significant bureaucratic costs. All in all, the changes appear to be positive. They are felt as innovations in national law.38 Sometimes they even have developed an overspill and have been adopted by free decision of the national legislative even in those parts of national administrative law which were not subject to the duty to implement EU law, e.g. the replace34

See Peter-Christian Müller-Graff, ‘Der Stil europäischer Rechtssetzung’ in Harrer/Gruber (eds) Europäische Rechtskultur, (Beck 2009) 1 (23 ff.).

35

With further references Müller-Graff (n 34) 24 f.

36

To Art. 4 sec. 3 TEU as central ‘hinge and bridge for the Europeanization of the national law’ W. Kahl, in C. Calliess and M. Ruffert (eds) EUV/AEUV (4th ed, Beck 2011) Art. 4 EUV, Art. 116 TEU.

37

Cf. the state reports in: Jürgen Schwarze (eds) Das Verwaltungsrecht unter europäischem Einfluss (Nomos 1996).

38

To the German administrative law cf. Lepsius, ‘Hat die Europäisierung des Verwaltungsrechts Methode?’ in Axer et al (eds) Das Europäische Verwaltungsrecht in der Konsolidierungsphase, DV supplement 10 (Duncker & Humblot 2010) 179 (190 ff.).

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ment of traditional rules on secrecy of files by the freedom of information principle. b) Of course, conflicts have not been absent. As far as they are more than reactions of defence which are often ascribed to bureaucracies but which also can be found in science and scholarship, they must be evaluated differently: • It is clear that the EU treaties have already foreseen such conflicts and provided some rules for precaution. These are the provisions on competences,39 the procedure for protective clauses, 40and the principles of Article 5 TEU, in particular the subsidiarity principle on the duty of EU organs to save the national identities of the member states. That this duty of respect also has an administrative perspective is shown by the explicit reference to the constitutional structures:‘inclusive of regional and local selfgovernment’ (Article 4 (2) 1 TEU). 41 With respect to social rights which are governed by national legal ideas EU law is reluctant to refer to ‘conditions established by national laws and practices ‘(Article 35 Charter of Fundamental Rights). The overt compromise in some treaty provisions also indicates the attempt of the Union treaties to accept different national traditions alongside each other. Examples are the provisions on public undertakings (Article 106 TFEU, ex Article 90 EEC) together with the general clause on services of a common economic interest (Article 14 TFEU). • Despite this, tensions between EU law and national traditions are unavoidable. They may either concern values or structures. As to the first, the debates on the position of public service in the competition policy in the EU Commission urging liberalisation maybe recalled, which in some countries questioned their understanding of public service. Structural tensions however are less buried in emotions but may have a deep impact on the legal substance of national administrative law. They are linked to the particular conditions of implementation of administrative law in the multilevel system of the EU which regularly transfers implementation to the member states and their autonomous administrative law (Article 291 (1) TFEU), but who also have to guarantee an effective and fair equal implementation in the whole administrative space of the Union. As is well known, the principles of equivalence and effectiveness were established as transformers here, but they need careful application. In a certain period, this was neglected by the ECJ. In judgements such as Petersbroeck the court challenged valuable traditions of national law such as the stability of administrative decisions without any need and thus created uncertainty and defensive reactions. Recent jurisprudence shows more sensitivity for the peculiarities of national administrative law, linked to the readiness to accept different traditions. 42 39

Including the rules on unanimity of decisions in certain ‘sensitive’ administration matters, see Art. 192, para 2 TFEU for some matters of the environmental law.

40

They should enable the member states to keep traditionally higher protection requirements, especially in health and environmental politics. Cf. Art. 114 paras 4-10 and Art. 193 TFEU.

41

See Pernice, AöR 136 (2011) 185 ff.

42

Cf. W. Kahl, in C. Calliess and M. Ruffert (n 36), Art. 4 EUV, 118.

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• A last point concerns the reactions of Member States’ courts, in particular constitutional courts, towards situations in which they saw important national traditions threatened. This is the question of domestic limits to integration with respect to the untouchable centre of national constitutional identity – a subject that has been prominently dealt with by the Bundesverfassungsgericht many times, 43 but which is also seen in other Member States. Is this the work of incorrigible traditionalists which has to be rolled back as far as possible in the interest of common principles? In my view it is not. As far as constitutional identity is concerned, the legitimacy of this perspective is recognised by the already quoted Article 4 (2), 1st sentence of the TEU itself. Even below this threshold, national traditions are important for the future development of EU administrative law as a source of experience, as a partner in dialogue and sometimes as a means of pressure. In this respect, one can indicate the relationship between the Solange-jurisprudence and the development of human rights within the Union. These results show that national traditions are worth preserving for the future of administrative law in Europe. This is also true for the different models of thoughts and styles of argumentation within administrative legal scholarship – the German approach of thinking in systems and the English orientation towards case law. Both can learn from each other and can to a certain extent converge. The difference between the starting points should however remain because it is different for a lively dialogue. For legal studies the same is true as for live science: biodiversity is the basic principle of evolution.

43

In detail BVerfGE 123, 267 (352 ff.).

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chapter 2

‘Tradition’ in English Administrative Law Andrew Le Sueur

chapter 2



‘tradition’ in english administrative law

1 Defining Tradition

This essay explores ‘traditions’ relating to administrative law in the United Kingdom, more particularly in England. The Oxford English Dictionary defines tradition as the ‘action of transmitting or ‘handing down’, or fact of being handed down, from generation to generation; transmission of statements, beliefs, rules, customs, or the like, especially by word of mouth or practice without writing’. How does this broad definition translate to the specific context of law and public administration? Every national legal system has certain ways of thinking about, doing and arranging things (which I will call ‘practices’). For a practice to count as a ‘tradition’, I suggest it needs to have the following characteristics. For present purposes, the first is obviously that the practice relates to law and public administration. A broad approach is needed here, reaching into constitutional practices as well as mere administration. A second criterion is longevity. As a minimum, I suggest a practice must date back at least 30 years (so that it can be said to have been passed from one generation to another); some practices will of course be much older (though it would be absurd to insist that a tradition had to date back to ‘time immemorial’).1 For example, the principle of formal equality between men and women is now firmly embedded in the United Kingdom, but this state of affairs is too recent to be called a ‘tradition’. Within living memory, an attempt by a local authority to pay men and equally was held to be unlawful (Lord Atkinson noting that it was guided by ‘eccentric principles of socialist philanthropy, or feminist ambition to secure the equality of the sexes’).2 Legal systems which have a definite start date, such as the time when the constitution was adopted, may think of traditions as being practices expressly recognised by the original framers of the constitution or implicit in the constitutional settlement. England’s public law system has no such definite start date. Thirdly, we may want to exclude from the definition of a tradition practices that are straightforwardly expressed in positive law. This is a way of capturing the OED’s emphasis on transition ‘without writing’. Once we are clearly in the arena of legal norms the purpose of labelling a practice as a tradition is diluted, even if the law in question is ancient. Law also implies that there is a clear and agreed mechanism for changing the practice, which will not usually be the case with traditions. Fourthly, there needs to be a criterion for a relatively important practice in order to avoid triviality. Admittedly this is difficult to apply. For example, it is a practice dating back to the Middle Ages that the legal year starts in October and that the higher courts do not sit over the summer. On one view this is of no significance, but there may be occasions in which this practice has an impact on litigation and public administration.3 Barristers representing 1

A term of art in English law, referring to a date in 1189 when the reign of Richard I started.

2 3

 Roberts v Hopwood (1925) AC 578.

See e.g. A. Le Sueur and M. Sunkin, Public Law (London, Longman, 2007) 258: in 1985, a successful judicial review challenge to controversial welfare benefits delegated legislation was made on the day

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clients in the Administrative Court (part of the Queen’s Bench Division of the High Court) are required to wear horsehair wigs in open court. This is a longestablished practice in England but is probably not important enough to count as a ‘tradition’ for present purposes. One definitional problem is that public law phenomena exist that are similar to, indeed may overlap with, traditions defined according the four suggested criteria. Constitutional conventions fall into this category but can be distinguished on the basis that traditions do not necessarily have normative force whereas conventions must be seen, for a good reason, as binding. Writing in 1959, Jennings suggested that in relation to a convention:4 We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by the rule; and thirdly, is there a good reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.

Only the first of these questions has to be asked of a tradition. Fundamental constitutional arrangements may also be described as ‘a tradition’, especially if they are distinctive to a particular country or group of countries. For instance, in relation to England, writers refer to the tradition of parliamentary sovereignty, or ‘the common law tradition’.5 A final category over possible overlap with ‘traditional’ practices is customary law. This is not of any great relevance to the specific context of administrative law in England.



2 The Politics of Tradition

The whole concept of tradition and specific traditional practices are not politically neutral. The rhetoric of ‘tradition’ can have political power. In one strand of English conservative political thought, tradition is regarded as intrinsically valuable as well as having the instrumental goal of creating a sense of belonging and feeling of security. As an approach to creating a stable system of government, tradition is seen as preferable to self-conscious design before the courts stopped sitting for the summer vacation, so a speedy appeal to the Court of Appeal was not possible, and Parliament had already risen for the annual summer recess, so new regulations could not be made until it met again in the autumn. 4 5

I. Jennings, The Law and the Constitution, (5th Edn, London, University of London Press, 1959) 134–5.

For examples of both, see Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (London, 2012).

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according to abstract ‘principles’ or ‘values’.6 The longevity of institutions, such as the monarchy, hereditary peers in the House of Lords, and the office of Lord Chancellor (radically reformed in 2005), is said to be a source of their legitimacy and authority. Motivation for change is pragmatism: an institution or practice changes when it no longer fulfils a need. National traditions may be political in a different sense: they may be invented7 and may be the product of a political scheme. The idea of ‘Britishness’ became a project in 2007-10, lead by Gordon Brown, the Prime Minister.8 This new ideal of national identity was to be built on ideas of ‘shared values’ (or traditions), not on race, religion or difference. The Brown project sank with the Labour Party’s defeat in the May 2010 general election but politicians’ concerns to define Britishness continue in ways that are relevant to administrative law. A cross-party Commission on a Bill of Rights reported in December 2012. This considered whether the Human Rights Act 1998, which incorporated rights from the European Convention on Human Rights into domestic law, should be reformed. The majority of the Commission (which on some points was sharply divided) concluded ‘if a UK Bill of Rights were to be introduced in the future, there is a strong case at least in principle for defining it in language reflecting our own heritage and tradition’. This was, the report argued, important in gaining ‘greater public ownership of the rights it contained’ and ‘it would seem both self-defeating and counter-productive to go down such a road but then to use identical language to that in the [European] Convention [on Human Rights]’.9 We see here an example of tradition being invoked for an instrumental, political purpose.



3 Tradition in a Fast-Changing Society

At first sight, there may be reasons to be sceptical about an exercise to identify national traditions in English administrative law. This is because so much has changed over the past 50 years. The English public law landscape can be presented more easily as one of flux rather than permanence. Think first about the role of courts in administrative law. Judges’ attitudes to their powers of control over public administration have changed in several episodes of judicial creativity. An example of one such era is the dramatic reshaping of judicial review during the 1960s. Any book on judicial review of administrative action published before I was born (in 1964) presents an account 6

See A. Lansley and R. Wilson, Conservatives and the Constitution (London, 2000) 14; M. Oakeshott, Rationalism in Politics (London, 1962).

7

A non-legal example is the English tradition of having Christmas trees in the home at that time of year. What is regarded by most English people as a quintessentially English tradition is, of course, a German import via Prince Albert in the mid-19th century.

8

See D. Grube, ‘How can ‘Britishness’ be Re-made?’ (2011) 82 The Political Quarterly 628.

9

Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, vol 1 (London, 2012) para 8.8.

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administrative law in europe: between common principles and national traditions

of the law almost unrecognisable in several important respects in 2013. Over the past 50 years, many basic concepts relating to judicial control of executive action have been created or developed (in ways that may have been surprising to previous generations). The changes were brought about through a series of House of Lords decisions: Ridge v Baldwin (procedural fairness is required in a wide range of decision-making situations, not only those which have ‘judicial’ characteristics); Padfield v Minister of Agriculture (discretion conferred on public officials by statute is not ‘unfettered’: it must be used to further the policy and objects of the legislation; and interpretation of legislation is ultimately a question for judges rather than politicians or officials); and Anisminic Ltd v Foreign Compensation Commission (judges have power to correct almost all errors of law and interpretation by public bodies). In 1947, Lord Greene MR stated that a local authority acted unlawfully if it did so in a way that was ‘so unreasonable that no reasonable authority could ever have come to it’.10 If he were able then to see the law as it is now, in 2013, he would have found the law on ‘Wednesbury unreasonableness’ developed and applied in ways that he would probably have found surprising. Moreover, judicial review has been extended into types of situations not seriously anticipated in the 1960s, including review of executive action taken under prerogative powers (rather than Act of Parliament)11 and powers exercised by non-statutory self-regulatory bodies.12 In short, the picture is one of innovation and flux rather than tradition. The same is true in relation to the organisation of government functions. Britain has been subject to changing fads in structures, processes and orientation of public administration in ways familiar in other jurisdictions: these include New Public Management (introducing separations between the tasks of ‘steering’ – policy-making – and ‘rowing’ – service delivery); ‘user focus’; the shift from hierarchical, command-and-control, rule-bound government to governance and the rise of the ‘regulatory state’ using soft law and soft bureaucracy; and the encouragement of non-judicial dispute resolution for complaints against government. There has been also been profound change at constitutional level. Britain’s famously flexible constitution has been stretched into new shapes. As the political journalist David Lipsey has recently written, Britain’s constitution has ‘undergone a wholesale revolution which makes our governance practically unrecognisable compared with that of 1970’.13 The constitutional reforms having the impact on administrative law include: developments in European Union law; the Human Rights Act 1998; devolution; and Freedom of Information.

10 11

 A ssociated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.

 Council for Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 (the ‘GCHQ case’).

12 13

 R v Panel on Takeovers and Mergers Ex parte Datafin plc (1987) QB 815.

D. Lipsey, ‘A very peculiar revolution: Britain’s Politics and Constitution, 1970-2011’ (2011) 82 The Political Quarterly 341-42.

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‘tradition’ in english administrative law

4 Communities of Tradition

Traditions are practices embedded in particular communities (even if other, different communities also have similar traditions). We therefore need to be clear about what who constitutes a community. Relevant to administrative law, and without any attempt to be comprehensive, several different communities may be identified as worthy of attention. • The nation as a whole. • The general public. • The executive. • The judiciary. • The legislature. • The British Commonwealth of Nations.



4.1 National tradition

The idea of national tradition about law and government, in English hands, has in some periods had a tendency towards chauvinism and to lead to expressions of self-satisfaction. An example of this is the English elaboration of the concept of the rule of law developed in the 19th century. William Hearn, writing in 1867, gushes with nationalist pride, which to modern eyes overlooks the ghastly inequalities of Victorian England.14 Under the system that [Edward I, reigning 1272-1307] established, and with the various improvements that it received under his successors, the administration of British law is such as may well call forth honest pride. Our noble isonomia, the absence of any privileged class (for our peerage with its few and inoffensive privileges, limited to the holders of the title for the time being, scarcely forms an exception) and the equal rights which are the birthright of every subject of our Queen have been the theme of just and frequent eulogy. But not less deserving of admiration is both that steady resolution with which this ideal equality is practically maintained and the readiness with which the highest in the realm in his contention with the lowest submits to the undisputed supremacy of the law. It was no idle boast of Lord Chatham that although the wind might whistle around the poor man’s straw-built hut, although the rain might enter it, the King could not.

The tone of superiority over other nations (especially France) is evident in AV Dicey’s better-known explanation of the rule of law as a ‘characteristic of the English constitution’. He emphasised the role of the ordinary courts of law (as opposed to specialist administrative tribunals); that office-holders were ‘subject to the ordinary law of the realm’; and that general principles and freedoms are 14

W. Hearn, The Government of England, its Structure and its Development (Longmans, Green, Reader and Dyer, 1867) 88-9.

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administrative law in europe: between common principles and national traditions

‘the result of judicial decisions determining the rights of private persons’ rather than constitutional code.15 In multi-jurisdictional nation states, sensitivity to the ‘national’ is also needed in another sense. In the United Kingdom,16 there are or have been differences in the approach between England and Scotland. In relation to judicial review the grounds of review are similar in both legal systems but the conceptual foundations of the court’s role may be thought to differ.17 A further question is whether to be a ‘national’ tradition, a practice has to be more or less unique to the country in question. The purpose of identifying ‘national’ traditions is usually to differentiate practices in one country from those in others. If a tradition is common to several countries, is there any purpose in labelling it a ‘national’ tradition? For this reason, we may want to exclude the idea of having ombudsmen with jurisdiction to investigate maladministration as an English ‘national’ tradition, even though the Parliamentary Commissioner for Administration and the Local Government Ombudsmen are well-established features of the English administrative justice landscape. This is because they are Scandinavian imports (in the sense that the general concept of an ombudsman originated in Sweden and was introduced to England in the 1960s and 70s) and therefore insufficiently indigenous to England. They are also probably too recent to be regarded as a tradition.



4.2 The General Public

Traditions may also be sought out in the practices of ordinary people in relation to administration and law: traditions, even those relating to law, are not the exclusive preserve of elite professional or political circles. A project to identify popular sentiments and cultural attitudes towards administra15

A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th London, Macmillan & Co 1959) 187–95. As an aside, the Venice Commission’s 2011 report on the rule of law is a fascinating exemplar of an attempt to meld together different national traditions: the English concept of the rule of law; Rechtsstaat; Etat de droit. See European Commission for Democracy Through Law (Venice Commission), Report on the Rule of Law (CDL-AD (2011)003rev). See also Martin Loughlin’s more sceptical paper commissioned for this study: M. Loughlin, ‘The Rule of Law in European Jurisprudence’ (CDL-DEM (2009) 006).

16

Which has three distinct legal jurisdictions: (i) England and Wales; (ii) Scotland and (iii) Northern Ireland. There is political discussion at the moment about the desirability of Wales becoming recognised as a jurisdiction distinct from England. See National Assembly for Wales Constitutional and Legislative Affairs Committee, Inquiry into a Separate Welsh Jurisdiction (2012) para 80: ‘We believe however that legal training should be developed further should a separate jurisdiction be created in order better to reflect the legal traditions and emerging legal identity of Wales. In particular, an additional qualification in Welsh law might be seen as desirable’.

17

See A. McHarg, ‘Public Law, Private Law and the Distinctiveness of Scots Judicial Review’ UK Constitutional Law Blog (20 January 2012) .

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tive law would require a socio-legal, empirical method and a scale of research beyond the scope of this essay. Relying on national stereotypes, we can imagine that such research could reveal different attitudes towards, say, legal obligations to pay taxes. Similarly, the research might show differences across European countries over ordinary people’s mind-sets about applying for and complying with legal regulations on building development. In England, people generally feel obliged to seek legally required planning permission before building rather than building and then negotiating with the planning authority at the enforcement stage.18 Another popular tradition in England is attitudes towards official identity cards. In many other European states, the practice of having a governmentissued personal identity document linked to an official national identity database is viewed as normal. In England, attempts to introduce such a scheme were politically controversial. The Identity Cards Act 2006, introduced by the last Labour government, was quickly repealed by the Conservative/Liberal Democrat coalition government that came to power in 2010. The politics and public sentiment about ID cards is probably more complex than opponents suggested; certainly, opinion polls at various times during the saga showed a significant proportion of people, though not a majority, favoured cards. The House of Lords Constitution Committee, in its 2009 report Surveillance: Citizens and the State recognised the importance of public sentiment in shaping relations between government and the governed:19 Central to the success of evolving constitutional […] is a widespread belief in the importance of individual freedom and the need for executive accountability and restraint. In the absence of a written constitution which clearly defines the limits of the state and the proper role of government, these principles have continued to inform the relationship between the individual and the state. They have fundamentally shaped the development of our laws, practices, and public institutions.



4.3 The Executive

In the absence of a codified, written constitution constitutional conventions regulate many features of executive government in England – including, for example, the existence of the office of Prime Minister (often described a ‘a create of convention’), to practices of ministerial accountability to Parliament for the conduct of their departments (with requirements that ministers answer parliamentary questions and appear before parliamentary committees). One especially important tradition is that of political neutrality of the civil 18

For a fascinating recent example, see the UK Supreme Court case Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council (2011) UKSC 15 about an attempt to play the rules by secretly building a house (for which no planning permission had been applied for) within a barn (which was permitted development).

19

House of Lords Constitution Committee, 2nd Report of Session 2008-09, HL Paper 18, para 12.

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service: in contrast to arrangements in other countries, senior civil servants are strictly non-partisan and remain in office even though after a general election the party political personality of the government (in the sense of ministers) may change. One former senior civil servant writing in 2002, stated that ‘The British Civil Service is now, apart from Canada’s, virtually the only major Civil Service in the developed world to remain genuinely unpoliticised in its upper reaches’.20 Political impartiality is enshrined in the Civil Service Code 2010, and given statutory backing by the Constitutional Reform and Governance Act 2010, but the tradition has come under pressure in recent decades. ‘Special advisers’, who are politically sympathetic to the governing party, may be appointed by ministers and recent proposals would give ministers greater influence over the appointment and appraisal of permanent secretaries (the most senior civil servant in each government department).



4.4 The Judiciary

As is the case in most other common law jurisdictions, the tradition in England is for judges to be appointed in middle age from among lawyers in successful private practice at the independent bar or solicitors in law firms. The idea of a ‘career judiciary’, with judges appointed at a much younger age and without substantial experience of legal practice, is regarded with scepticism or hostility.21 Appointment of lawyers from professional practice is often regarded as buttressing the strong culture of judicial independence that exists in England. Another tradition related to the judiciary is of the generalist judge: in the main court system, judges are expected to deal with both civil and criminal matters. The ‘nominated judges’ of the Administrative Court (part of the Queen’s Bench Division of the High Court) spend only a portion of their time on judicial review and other public law cases; they are expected also to handle general civil litigation and also, as with most High Court judges, to try serious criminal cases and sit in criminal appeals. In contrast, the tribunal judiciary – sitting in the First-tier Tribunal and Upper Tribunal, which were created following radical reforms in 2007 – build up considerable specialist expertise in the areas covered by the tribunal jurisdiction, such as social security and immigration law (both areas governed by complex and voluminous legislation).

20

R. Mountfield, ‘Politicisation’ and the Civil Service: a Note’, accessed 10 March 2013.

21

See House of Lords Constitution Committee, Judicial Appointments (25th report of 2010-12 session, HL Paper 272).

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‘tradition’ in english administrative law

4.5 The Legislature

Customs and traditions influence the work of House of Commons and House of Lords but none appear to be relevant to the issues of administration law.22



4.6 The Commonwealth

My brief includes a request to consider ‘Commonwealth traditions and rearranging the comparative perspective towards Europe’. A part of the story of the British Empire is the propagation of the common law. Writing in 1937, RTE Latham described a body of law:23 … which has extended itself, in one form or another, over one-third of the world’s population and more than one-quarter of its area. In the overwhelming greater part of this added field the Common Law operates under conditions vitally different, in one way or another, from the conditions of its nurture. It has to mix with alien systems, to cope with unfamiliar institutions, to govern, and even to be administered by men of strange races, strange loyalties, and strange creeds. How does this very insular product suffer such transplantation?

The British Empire transmogrified into the British Commonwealth of Nations (from the mid-1920s through to 1949) and then the modern Commonwealth, an intergovernmental organisation of 54 ‘freely and equally associated nations’. Of what significance is the Commonwealth for public law broadly defined, and administrative law in particular? As an intergovernmental organisation, the Commonwealth is a very different creature from that of the Council of Europe or the European Union. Across the Commonwealth there is no common legislature or legislation: former dominions and colonies of Britain were unshackled from the United Kingdom Parliament by the Statute of Westminster 1931. Is there a common judiciary or supreme judicial body, or common body of judge-made law, applicable across the Commonwealth? The Judicial Committee of the Privy Council has, and continues to have, a role as a final court of appeal for some Commonwealth jurisdictions. The appellate function has, however, fallen away, for example: Canada (1933 in criminal cases, 1949 in civil cases); India (1950); South Africa (1950); Sri Lanka (1972); Malaysia (1978; 1985); Australia (1986), Hong Kong (1997); New Zealand (2003); and Barbados (2005). It remains a court of final appeal for fourteen states and for the British Overseas Territories. It is also important to understand that the Privy Council sits as a court of the jurisdiction from where the appeal originates; it is not therefore 22

Mark Sandford, ‘House of Commons Background Paper: Traditions and Customs of the House’ (House of Commons Library SN/PC/06432, 2012).

23

R.T.E. Latham, The Law and the Commonwealth (OUP 1949) 511-12.

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administrative law in europe: between common principles and national traditions

technically a supra-national court nor is it a British court (though the vast majority of judges who sit in the Privy Council are the senior British judiciary).24 How, then, is the influence of the Commonwealth experienced in relation to administrative law? First are the various statements that have been agreed by Commonwealth members, such as the Latimer House Principles on the Three Branches of Government (1971). This includes general reference to judicial review and need for a range of institutional protections and accountability mechanisms. There is no detailed code of rights or principles. Second, there are programmes of practical training, for example for government lawyers and legislative drafters. Third, there is the mutual influence of case law. In the first half of the 20th century, many Commonwealth jurisdictions took a very deferential, even obedient, approach to English judgments.25 There was little reciprocity: judgments of the highest courts in the Commonwealth (the High Court of Australia, the Supreme Court of Canada, etc) were rarely cited in English case law. The subsequent journey has been away from the idea of ‘the common law’ (which implied applying the some rules, concepts and standards across the family of common law jurisdictions around the world) to one in which there is recognition of the need for distinctively national approaches as are necessary or desirable to accommodate the social conditions and society values of different countries. Thus, you will find that the case law on the liability of local authorities for negligently performed regulatory activities is different in England, Australia and New Zealand – though in each jurisdiction, the common law has been developed with an awareness of developments in other common law jurisdictions. To take another example: in India, the English case law on judicial review – including Anisminic and Padfield mentioned above – has had a deep impact.26 The bolder Indian courts have however gone much further than the hesitant English courts in using proportionality as a common law ground of review; it remains to be seen whether the English courts will catch up. Privy Council case law has played a significant role in the development of several areas of administrative law, for example, in relation to legitimate expectation, from the early case of Attorney General of Hong Kong v Ng Yuen Shiu 27 to Paponette v Attorney General of Trinidad, which clarified continuing uncertainties.28 In the coming years, one trajectory is likely to be the growing penetration of supra-national European ideas and norms in English administrative law 24

The Judicial Committee of the Privy Council now sits in court 3 in Middlesex Guildhall, the building that also houses the United Kingdom Supreme Court. Most appeals now come from Caribbean jurisdictions. In 2010, the JCPC received 80 appeals (including 26 from Trinidad and Tobago; 15 from Jamaica; and 10 each from The Bahamas and Mauritius).

25

For several good accounts, see essays in L. Blom-Cooper et al (eds), The Judicial House of Lords 18762009 (2009).

26 27

Op cit: ‘India’ by Arash Sein Anand.

[1983] 2 AC 629.

28

[2010] UKPC 32 [2012] 1 AC 1.

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(through the ECHR and EU) and the waning of interest in developments in other Commonwealth jurisdiction as they become increasing different from England. An English administrative lawyer has less in common with an Australian administrative lawyer than a generation ago, thanks to the influence of the Human Rights Act 1998 in England and the continuing lack of a national charter of rights in Australia. South African administrative law now has as its focus the right to just administration,29 a right regrettably absent from the ECHR and unarticulated in English law. A common language, the common law method, and shared basic legal doctrine are, however, likely to continue to make case law of other Commonwealth jurisdictions more accessible to English lawyers than the judicial thinking in countries across continental Europe.



5 Two Overarching National Traditions

The challenge set for those of us contributing ‘country reports’ to this publication was to identify two national traditions. Several from specific communities of practice have been discussed above. My nominations for overarching traditions of general importance are: (i) the common law tradition, broadly understood and (ii) a lack of interest in ‘the state’ as a political and legal entity.



5.1 Norms Made Through Cases

In England, there is a political, professional and cultural attachment to rule making through cases and (the flip side of the coin) suspicion of codified statements of general principles. There is a commitment to an inductive approach. This can be seen in different ways. First, and most obviously, it is the method of the common law: rule making is a by-product of resolving individual, concrete disputes (in the context of administrative law, usually between citizen and the government). We have the principle of Wednesbury unreasonableness because a cinema company challenged a particular decision of a local authority of a town on the outskirts of Birmingham.30 We have a principle of substantive legitimate expectation because a severely disabled woman, Miss Coughlin, challenged a decision by a health authority to shut down her care home.31 These grounds of review were not designed but evolved in the light of practical experience, the submissions of counsel, and the response of the judges hearing the case. The importance of judge-made norms, developed in the contexts of particular circumstances of individual cases, is one of the hallmarks of the English approach to judicial review of executive action. Many of the rules relating to 29 30 31

Constitution of the Republic of South Africa 1996 s 33.

See above.

 R (on the application of Coughlan) v North & East Devon Health Authority [2001] QB 213.

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judicial control of legality and public body liability for unlawful action (e.g. through the law of negligence) are the product of judicial decision-making. It is not part of the English tradition to codify norms. Strict rules of precedent have not prevented the English courts from innovating, indeed rewriting whole areas of law. Second, constitutional conventions32 provide another illustration of rulemaking through ‘cases’ or practice. Reference has already been made to the criteria articulated by Jennings.33 Third, it is possible to find other examples of rules generated through cases and experience. When the Parliamentary Commissioner for Administration (the central government ombudsman) published a statement of ‘Principles of Good Administration’, she explained that these ‘principles draw on over 40 years’ experience of investigating and reporting on complaints’.34



5.2 No Strong Concept of the ‘the State’

As a second overarching national tradition, I refer to the fact that in Britain we do not have a clear political or legal concept of ‘the state’ on which to build administrative law. At a practical level, there is no standard constitutional or legal definition of the executive or executive power. Administrative decision-making power is distributed to an ill-defined entity known as ‘the Crown’, to an array of public office-holders, to public authorities and other institutions. As Daintith and Page say, from a legal and constitutional point of view, government in the United Kingdom is ‘more plural than unitary’.35 There is no impersonal corporate entity of ‘the state’, separate from particular government bodies and the individuals who work in them. At a theoretical level, it is said that the British do not care much about the idea of the state. Kenneth Dyson, in his seminal work The State Tradition in Western Europe (1980), describes Britain as a ‘stateless society’, in contrast to continental Europe; it ‘lacks a historical and legal tradition of the state as an institution that ‘acts’ in the name of public authority … as well as a tradition of continuous intellectual preoccupation with the idea of the state right across the political spectrum’. Cécile Laborde argues, in relation to the late 19th/early 20th centuries, that ‘in strong contrast to France and Germany, the dual nature of law (parliament- and judge-made) in Britain has meant that law was not the dominant idiom in which theories of the state were couched’.36 32 33

Norms which do not have the binding character of law.

Sir Ivor Jennings, The Law and the Constitution (5th edn 1959, London, University of London Press), pp 134–5.

34 35

 P rinciples of Good Administration (2009, London).

T. Daintith and A. Page, The Executive in the Constitution: Structure, Autonomy and Internal Control (1996, Oxford) 6.

36

‘The Concept of the State in British and French Political Thought’ (2000) 48 Political Studies 540, 552.

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The absence of interest in the idea of the state manifests itself in various practical ways. One is in how English law defines the legal powers of public body or the lack of the need for any express powers. One illustration is the Localism Act 2011, which has introduced a variety of reforms to the local level of government in England and Wales, where there are some 152 local authorities. Elected councils have political control over the work of local authorities, operating within the framework of legislation set out in Acts of Parliament and to a large extent also within the directions issued by central government. The 2011 Act seeks to decrease the influence of Parliament and central government and also the courts. Section 1(1) creates a ‘general power of competence’ for local authorities. It provides that ‘A local authority has power to do anything that individuals generally may do’. This includes ‘power to do it anywhere in the United Kingdom or elsewhere’, ‘power to do it for a commercial purpose or otherwise for a charge, or without a charge’ and ‘power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area’ (s 1(4)). This general power ‘is not limited by the existence of any other power of the local authority which (to any extent) overlaps with the general power’ (s 1(5)). During the passage of the bill through Parliament, the minister said, ‘The reason why the general power of competence is so important is that it turns the determination requirements on their head. All those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, will now have to err on the side of permissiveness. That is a substantial change …’

The government believes that the formula used is judge-proof. Another example is the so-called ‘Ram doctrine’, which applies in relation to ministers in central government. It asserts that a minister may exercise any powers that the Crown may exercise, except in so far as the minster is precluded from doing so, either expressly or by necessary implication.37 The minister is not regarded as a ‘creature of statute’. The practical effect is that a minister may carry out actions, under the common law, even if there is no Act of Parliament or prerogative power providing legal authority. This approach is related to that adopted in Malone v Metropolitan Police Commissioner, where in the 1970s Sir Robert Megarry VC saw no legal objection to telephone tapping by the police on the ground that England ‘is not a country where everything is expressly permitted; it is a country where everything is permitted except what is expressly forbidden’.38 The European Court of Human Rights thought otherwise and found there to be a breach of ECHR (Article 8), leading to the enactment of the Interception of Communications Act 1985. More recently, in R (on the applica37

See H. Woolf, J. Jowell, A. Le Sueur et al de Smith’s Judicial Review (7th edn, 2013) chapter 5. Since the first draft of this paper was written, the House of Lords Constitution Committee has begun an inquiry into ‘the pre-emption of Parliament’, including scope of the Ram doctrine.

38

[1979] Ch 344, 357.

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tion of Shrewsbury and Atcham BC) v Secretary of State for Communities and Local Government,39 the Court of Appeal accepted that a minister wishing to abolish a local authority could use the Ram doctrine to provide legal authorisation for a process of consultation different from the one set out in statute.



6 Preservation and Disposal of Tradition

A final question posed is whether national traditions should be preserved or disposed of. This paper has suggested that a definition of ‘traditions’ relevant to law and public administration and has identified a variety of specific practices within ‘communities of tradition’ and two national traditions of an overarching character (the common law method and how the British think about ‘the state’, or rather do not think about it). The specific practices must continue to be justified if they are to survive. Clearly some have value – such as the political neutrality of senior civil servants – but there are, demonstrably, other and different practices that could be adopted. Defending tradition for its own sake is a political stance and not one that attracts me. As to the overarching national tradition identified in this essay: the common law tradition, broadly understood, is too deep rooted to be easily displaced. There are many weaknesses in its methods40 but it is so deeply ingrained in legal thinking and doing that a change to a more rational and coordinated way of developing legal norms relating to public administration could not be achieved without legal reform on a huge scale. The other overarching tradition – an unwillingness to think about the state, as such – is different. The plural character of public authorities, and the tendency in some contexts to equate public bodies with individuals, leads to muddled thinking and complacency about the risks of unrestrained political power. This jeopardises the rule of law. At a time when senior politicians in government are advocating repeal of the Human Rights Act 1998 and British disengagement from the European Court of Human Rights, a better sense of the state is needed as a starting point for serious discussion about the role in a mature democracy of law and judges (national and supra-national) in legitimising public power.

39

[2008] EWCA Civ 148; [2008] 3 All ER 548.

40

See A. Le Sueur, M. Sunkin and J. Murkens, Public Law: Text, Cases, and Materials, 2nd edn (Oxford, OUP, 2013) ch 4.

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National Traditions in French Administrative Law Pascale Gonod

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national traditions in french administrative law

Une tradition, c’est une mémoire devenue historiquement consciente d’elle-même. La saisir à l’échelle de la France suppose la conjonction d’un regard intérieur – celui d’un héritage qu’on assume -, et d’un regard extérieur, qui objective cet héritage et le fonde en ‘’tradition’’1



1 Reference Points Traditions

In the civil code, tradition refers to the ‘remise matérielle de la chose’,2 but it is also possible to understand tradition as a transmission of knowledge or a way of doing things, and building its authority on its own existence. Another way of looking at tradition is to dissassociate it from closed notions, such as usage, practice, and customs. In this regard, the task is daunting… Indeed, tradition has been defined as a ‘practice inherited from the past which can be a part of a usage or a custom’.3 If custom is considered a source of law, it is not necessarily the case for usage: often, they are used as synonyms, but it is important to note that usage ‘rather than an actual rule of law, refers often to a specific practice (…) for which the mandatory strength is variable’. 4 As for practice, this can be defined as … a ‘usual way of acting which, through repetition, can create a usage or a custom’.5 Hard to define, the concept of tradition presents a certain relativity, at least in the way that it can assume, or not, a mandatory strength in the field of law. Yet the expression is often used by the law. For example, a non-exhaustive investigation into more than fifteen codes shows that the use of traditions is rare – traditions which are not, incidentally, described as being national6 - in addition to the civil code, it is possible to find measures of legislative value, such as Article L952-2 of the education code, which refers to academic traditions,7 or of regula*

Text from the 4th gathering of the Dornburg Research Group (April 2012). Translated by Axel Marchand.

1

P. Nora, Les lieux de mémoire (Quarto-Gallimard, 1997) Vol 3, 3041 (A tradition is a memory which has become historically aware of itself. To grasp the scale of this in a French context requires the combination of an inside look – one of a heritage which has been assumed – and of an outside look, which objectifies this heritage and turns it into a ‘tradition’).

2 3

From the latin tradere, ‘to give someone else; give‘; see Civil Code Arts. 938, 1138, 1607 and 1938.

G. Cornu, Vocabulaire juridique (PUF, 2007).

4 5

Ibid, whose impact, we should add, is limited.

Ibid.

6

On the other hand, there are some references to local or professional traditions: Art. L111-1-4 of the cityplanning code (local architectural traditions); Art. L642-22 of the rural code (appreciation of local traditions), and Art. R5141-20 of the public health code (homeopathic medicine and veterinary tradition).

7

‘University lecturers and researchers enjoy a full independence and liberty of expression while teaching and researching, provided that they respect the principles of tolerance and objectivity, in obedience to academic tradition and dispositions of this code’. On this subject see O.Beaud, ‘Les libertés universitaires à l’abandon ?’ in Les sens du droit ( Dalloz, 2010).

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tory value, such as Article R350-1 of the environmental code which refers to industrial, artisanal, agricultural and forestry traditions. The judge who applies these norms defines them, and legal theory facilitates their comprehension, for example in regard to traditions ‘used’ in universities in order to explain their function and explore academic traditions.8 National Traditions Traditions can be found in diverse settings –local, national, international – or specific areas such as within an institution (such as a University), or within a profession. Nevertheless it is within a specific context that the expression appears most frequently and has become prominent: the confrontation of national traditions with a supranational level, especially that of Europe. With a view to studying the convergence of European legal systems, it appears useful to identify these traditions, apprehended through their national dimension, and which also refer to a form of identity. The idea of globalization also refers to it in the sense that ‘global law (…) is also characterized by its indifference to distinctions and to national legal traditions’.9 Indeed, it is not really surprising that European concepts and documents refer to it. To quote only two examples, the preamble of the European Union treaty mentions the desire to ‘deepen the solidarity between their people in the respect of their history, of their culture and of their traditions’,10 or the preamble of the European Charter which refers to ‘the traditions of the people of Europe’ and to ‘the national identity of States’ (paragraph 3), as well as to ‘the constitutional traditions’ of the member states (paragraph 5). French law is continuously evolving. For example, the expression can be found in the preamble of the 194611 Constitution, at paragraph 14 which states that ‘the French republic, faithful to its traditions, complies with the rules of international public laws…’ and at paragraph 18: ‘faithful to its traditional mission, France has decided to lead the people it has taken responsibility for, to the freedom to administer themselves and to democratically manage their own affairs…’. For its part, the Conseil constitutionnel uses three expressions: ‘the republican tradition’, ‘the French legal tradition’ which is larger than the former because the Conseil constitutionnel explicitly includes it,12 and ‘the French constitutional tradition’. As for the Conseil d’Etat, it is difficult not to think of the famous notice of 6 February 195313 8

Beaud, ibid.

9

J-M. Sauvé, ‘La justice administrative à l’aube de la décennie 2010: quels enjeux? quels défis?’, presented at a conference in Bordeaux on 10 September 2010, on line at www.conseil-etat.fr.

10

See also the reference to the ‘constitutional traditions shared among member states’ in Art. 6-3, ‘cultural traditions’ in Art. 13, and ‘ the legal traditions’ of Arts. 67 et 82.

11

No mention of it is made in the 1789 Human Rights Declaration, in the 1958 Constitution, or the Charter of environment.

12 13

See for example CC 94-346 DC of 21 July 1994, Law completing the state property code,96.

Grands avis du Conseil d’Etat (GACE), third edition , n°2, obs. B.Stirn.

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in which ‘a republican constitutional tradition’ was established, fixing a material domain to the law.14 Moreover, national traditions have been mentioned for a long time – even summoned-, in doctrinal debates in order to explain or justify some solutions. For instance, Edouard Laferrière justifies the constitution of the administrative jurisdiction in France on the principle of separation of judiciary and administrative authorities and the different solutions wherever this principle has been applied, by explicitly evoking ‘the national traditions’ of each country.15 However it must also be noted that the expression ‘national tradition(s)’, or even ‘tradition’, appears in the indexes of internal public law books, specifically in administrative law.16 Administrative and political authorities are evidently also familiar with this notion: for example President Mitterrand based the decision to refuse to sign the ruling prepared by the government headed by Jacques Chirac in 1986, on republican ‘tradition’.17 It is also possible to mention those definitively national traditions that, we – French jurists – respect without even thinking about them, and in doing so perpetuate as a real way of thinking of the law, in the same way as a question can be dealt with using a two part answer. There most certainly exist national traditions that in this way relate to a State, and so without question there are also French traditions which transcend the organizational policy of this State. Asked in 1990 about the concept of republican tradition, François Luchaire noted: ‘admittedly, there are French traditions; but are they linked to the Republic? It’s doubtful, first of all because a number of them date back to the 1789 Declaration proclaimed under the monarchy and recalled by the Prince President in 1852; second of all because we find the same traditions in monarchies, which are today, as numerous as the republics in the European Economic Community’.18 If traditions exist, as is indicated by the different sources of references to tradition and to national tradition, their characteristics remain unclear. However, it is not impossible at this stage, to draw some conclusions: on the one hand tradition is the result of a long accretion of past practice, on the other hand, its strength doesn’t necessarily come from the legal field because a tradition is defined by a mandatory force or a persuasive force inherent to it, which can be within the competence of the legal sanction, but also be lacking it, and derive its mandatory strength from the generalized admission, the acceptance of a heritage. This is why the plural is called for when dealing with tradition(s). 14 15

No references to the traditions have been found in the Tribunal of conflict’s case law.

E. Laferrière, Traité de la juridiction administrative et des recours contentieux, (2nd ed, Berger Levrault, 1896) Vol 1, 11 et P. Gonod ‘Edouard Laferrière, un juriste au service de la République’ LGDJ 1997, 58.

16

It should be added that to my knowledge work on the discipline question, does not exist. In English, see Patrick Glenn’s studies, in particular Legal traditions of the world: sustainable diversity in law, (4th ed, Oxford, 2010).

17

For other examples, see C.Vimbert, La tradition républicaine en droit public français, (University of Rouen, 1991).

18

Letter of 4 April 1990 reproduced in Vimbert, ibid, 653.

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2 The Subject of the Study: National Traditions in French Administrative Law

When viewed in this expression, this subject can be quite perilous to deal with. Indeed, as everyone knows, ‘the main characteristic of the French State is to be administrative. It isn’t the State which creates the administration but the other way around’.19 And yet, if there is a first national tradition in France, it is without a doubt the administrative centralization, and because the existence and the formation of administrative law in France owes a lot to this administrative centralization trend, it is possible to say without exaggeration that French administrative law is, in itself, a national tradition. Consequently, studying the national traditions in French administrative law requires thorough examination of administrative law as a whole…. However what is intended here is to simply explore a few traditions which appear to cause confrontations between past and present. Insofar as tradition exists and persists, as long as the demands of the present time do not call it into question, it is possible to discover traditions, primarily during conflicts caused by encounters between the past, the heritage that they carry, and the demands of the present time which are expressed through certain rules. And, if these conflicts can arise in the field of law, it isn’t the only place it can occur. In other words, it is the clash, the conflict, which plays the role of developing national tradition, although the term conflict, which is somewhat warlike, shouldn’t be overestimated, because we are not in a warlike confrontation, but rather in a collision of cultural order. Without claiming to carry out a construction based on a true classification or categorization of national traditions in the field of French administrative law – which would presuppose undoubtedly that a theoretical classification and a theoretical classification only of national traditions should be made – it is possible to pose a few distinctions at the same time on the terms and nature of conflict which makes the knowledge of traditions possible. The first indicator relates to the confrontation of supranational logic – in this case the European logic- of internal legal requirements, and leads to an understanding of national traditions in the legal domain: in this situation, it is two legal rules which are opposed, one expressing a national logic that is apprehended as a tradition. Second, this indicator plays a role in the competition between a tradition understood as a legally unenforceable rule and a juridical norm, both of them presenting a solution to the same juridical situation. These two first cases have in common a frontal opposition. The third hypothesis, finally, is harder to understand because it consists of approaching these traditions as irrigating all administrative law and constituting a framework. If exposing administrative law to the prism of its founding traditions clearly cannot be the subject of this study, the question deserves some attention, for at least two reasons. On the one hand, insofar as the understanding of the two 19

JJ. Gleizal, L’administration dans son droit, genèse et mutation du droit administratif français, (Publisud, 1985) 10.

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cases outlined above goes, consideration of this situation is required; on the other hand, because the last half-century has been witness to a change in the role of the State, for which manifestations are sensitive enough for the strength of cultural traditions to unfold against them. The discovery of tradition doesn’t come from the frontal opposition of two terms, at least one of which is a legal norm (as in the two cases previously mentioned), but from a resistance that could be called cultural order in the face of change. Proceeding in this manner leads to the isolation of two fields (legal and cultural, notably), which are as much caricature as artificial as they merge and intertwine, one constituting at the same time the foundation and the expression of national traditions. This chapter will remain on this position nonetheless, for the sole purpose of trying to clarify the research.



3 Telltale Cases of National Traditions in French Administrative Law



3.1 Case 1: Heritage as a Barrier to Change

To tackle this hypothesis would requires going back to study the foundations of contemporary administration and administrative law, that is, several centuries back. In this case, just a reference to the historians of administrative law20 will be made, and a reminder that in France what Pierre Legendre called ‘the monarchist reflex’ that the French administration has, still exists.21 This is witnessed in French centralism, which still tends to resist the multiple reforms of decentralization started in the last 30 years, or the reappearance of certain privileges (or ‘guarantees’) which reflect its vitality.22 Incidentally, the expression of this ‘reflex’ – which could be more broadly described as a cultural reflex- enables us to discover traditions. These do not prohibit legal change, which occurs, but constitute an undeniable hindrance or an obstacle: in order to achieve the complete realization of legal modifications, these modifications must be sustained and accompanied by an evolution – that can’t be imposed- from this cultural reflex, or in other words, from these mentalities. Spotting them is actually extremely complex if one considers it necessary, on the one hand, to work on the unconscious to which the ‘reflex’ in question is linked, and, on the other , to consider an unconscious which would be that of the nation. This is because resistance to change is not necessarily linked to 20

See J-L. Mestre ‘Histoire du droit administratif’, in P. Gonod, F. Melleray, P. Yolka, Traité de droit administratif, (Dalloz, 2012) Vol 1,.3, and the bibliography.

21

P. Legendre Trésor historique de l’Etat en France (Fayard, 1992).

22

See P. Gonod, ‘Retour à la constitution de l’an VIII ?’, AJDA 2011, 2313 and the conception of JJ. Bienvenu, J. Petit, B. Plessis et B. Seiller, ‘Constitution administrative de la France, Paris II Conference, September 2011’, (Dalloz, 2012).

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administrative law in europe: between common principles and national traditions

conscious conduct, but often also to unconscious conduct that could be considered as conserving a past that it would be impossible – whatever is said – to erase totally. Formerly, reference to the expression ‘French genius’ was often made, which is now seldom used by jurists,23 and which presents some similarities with such a phenomenon. Therefore, if it is not easy to precisely evaluate the strength of traditions understood in this situation as a kind of resistance to change, two examples drawn by methods of public intervention on one side, and civil servants and constituents which are administrative actors on the other side, can at least testify to its presence, since it undoubtedly constitutes, traces of a French concept of administrative action. The Methods of Public Intervention In France, public intervention has for a long time been based on the regulation of private economic activities and on strict control of public enterprises, a lot of them, moreover, being monopolistic. Furthermore, in these two modalities, public intervention exerted itself through the classic techniques of the administrative scheme. The end of monopolistic situations and the consecutive appearance of a private sector reflect a definitive movement towards deregulation in which regulation finds its source.24 With the opening of the market and the generalization of competition, the resulting requirement of decoupling of the status of operator and regulator (which forces the privatization of publics operators), it could have been possible to allow the self-regulating mechanisms of the market to operate and make the State take a back seat, as a passive observer. Our national traditions led us to organize a new form of public intervention, at odds with the commands and the constraints which characterized regulatory techniques, but which seeks to impose new rules for market players, to ensure the smooth operation of their actions. This led to the birth of a regulatory law. This promotion of the theme of regulation progresses with the idea of the contracting of public action. The ‘contracting of administrative law’ refers to the development of contractual relations which are becoming the usual, ‘normal’, method of administrative action,25 which affects multiples relationships: with the private sector (establishing public-private partnerships, outsourcing trends…); between collectivities ( within the framework of decentralization); between administrative authorities and constituents; within administrations, because, for example, the renovation of public management is based mainly on contractual means. The contractual process relegates the unilateral process, 23

Contra: B. Plessis during the above conference.

24

Even though the two parties are linked and, in France, ‘for a while synonymous’ (see for example, E. Pisier, ‘Vous avez dit indépendantes? Réflexions sur les AAI’, 46 Pouvoirs 1988, 76.).

25

Concerning these questions see the report, under the directions of Y. Gaudemet, ‘Loi et Contrat’17 Les cahiers du Conseil constitutionnel 2004,75, and especially J. Chevallier in the same volume; see also, Y. Jégouzo, L’administration contractuelle en question(Dalloz 2004)552.

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even in the most resistant fields, namely the police and justice. Still, contraction doesn’t in any way suppress the existence of public power prerogatives. The Administrative ‘Actors’ The concept of civil servants and that of constituents are closely linked to the authoritarian model derived from monarchy, which the republic didn’t totally reject insofar as it found, in the potential of this organization, the tools to achieve its liberal policy (this ‘tour de force’ described by Pierre Legendre). First of all, it is necessary to mention that, if the adoption of a civil servant status enabled the civil servant to stop being the second-class citizen that he was for a long time, he still is a different kind of citizen, or at least a worker unlike other workers. The successive amendments to the statute of 1946 kept the civil servant in a specific legal function, this statute was aimed at guaranteeing both the submission of the civil service to political power and its independence with respect to this same power. However, this statutory construction is criticized today by some as an obstacle to meeting the requirements of management: ‘at a time of globalization and neo-liberal change, when public services are increasingly subjected to the ‘laws of the market’, such a system regarded as overly egalitarian, corporatist, rigid, inefficient, unproductive (…) would have become a heavy burden’.26 From then on, discussions were conducted in order to modify the logic upon which the French civil service27 was built, and to promote the harmonization of private sector rules; some steps have been taken to achieve this, such as the law of 2 February 2007 known as the law of ‘modernization’ of the civil service, and the law of 5 July 2010 on the renovation of social dialogue. This policy was even organized, in a totally new way and at odds with tradition, by the Ministry of labour who in 2010 had the responsibility of managing the public service: but the experience only lasted a few months before a new ministry of civil service was constituted again in 2011. This ‘attempt’ however, deserves a mention. This movement undeniably demonstrates the evolution of attitudes, but the change in civil service culture has not yet entirely begun: the position of these questions in the first draft of political party presidential programs in preparation for the presidential election revealed this issue. Second, the absence of an equivalent expression for ‘administré’ in most foreign languages suggests that there is a peculiar French tradition of constituent, understood within a relationship of subjection to the administration. However the deepening of what is called the ‘administrative democracy’, and the policies to improve the relations between administrative authorities and their constituents aims to make them, as elsewhere, citizens, and this expression is now preferred to that of constituent.28 The acquisition by the constituents of 26 27

F.Melleray, Droit de la Fonction publique (2nd ed, Economica, 2010) 28 (and references).

Especially: Conseil d’Etat (Dalloz, 2003) and the numerous stances prompted by this publication.

28

See also the law of 12 April 2000 and V. Champeil-Desplats, ‘La citoyenneté administrative’ in P. Gonod, F. Melleray, P. Yolka, Traité de droit administratif (Dalloz, 2012) Vol 2, 397.

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administrative law in europe: between common principles and national traditions

rights that can be used against the administration is undeniable. However, it is not certain that this ‘people of constituents’ previously described by Léon Blum has totally disappeared. Progress is at work, and it can be seen through recent efforts, such as the current moves to modify the wording of the administrative judge’s decisions and make them more accessible to the person subject to trial.29 Nevertheless, aside from the fact that a constituent is more often treated as a client than a citizen (this taking place in the managerial logic of civil services in numerous cases), there are still some explicit displays of the refusal to renounce the culture of the constituent-subject and the supposed impossibility of elaborating a code or at least a general law of the administrative process, is proof of this.30 There are still some tough ‘habits’… There undeniably exists a form of identity reaction through this form of national tradition. The two following cases are a part of the ‘framework’ that is referred to here, to facilitate the presentation, as was case number one.



3.2 Case 2: Frontal Opposition Between Two Legal Rules: ‘European Domain vs. National Traditions’

The ‘adjustment’ of French norms to European norms highlighted national traditions which were present in national legal norms. Confrontation has been solved by the hierarchy of norms, but as evidenced by two known issues – namely the functioning of administrative justice and the incontestability of internal administrative measures – a kind of resistance to national logic nevertheless appears. The Functioning of Administrative Justice An adaptation of the conduct of the jurisdictional function to meet the requirements of a fair trial imposed by the Strasbourg Court has recently been completed, the measures of which have impacted on the image of a centuriesold institution, the French Conseil d’Etat. First of all, the Kress and Martinie31 cases led to the reconsideration of the intervention of one of the most original figures of administrative proceedings, the ‘commissaire du gouvernement’ – known since 2009 as the ‘rapporteur public’ – whose function was defined by the texts which established it.32 The European Court case law has led on the one hand to the softening of the condi29 30

Administrative Justice Decision Redaction Group work Final Report, Conseil d’Etat, (Dalloz, 2012).

See in particular P. Gonod, ‘La codification de la procédure administrative’, AJDA 2006, 489 and ‘L’administration et l’élaboration des normes’ dans P. Gonod, F. Melleray, P. Yolka, Traité de droit administratif (Dalloz, 2012) Vol 1, p.529.

31

 K ress v France, 7 June 2001, ECtHR, Grands arrêts de la jurisprudence administrative (GAJA) 106 and Martinie v France 12 April 2006, ECtHR.

32

Its mission is now described in Art. 7 of the Code de justice administrative (CJA): ‘A member of the jurisdiction, in charge of the ‘rapporteur public’s responsibility, outlines publicly, and with full independence his opinion on the questions highlighted by the petitions and on the solutions that are called for’.

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tions of intervention of the ‘rapporteur public’ during jurisdictional proceedings, and, by doing so, on the other hand, the inclusion in law of certain practices or traditions, such as the communication of the meaning of the conclusions of the ‘rapporteur’, or the consecration of the existence of the memorandum for deliberation, which would enable the different sides to respond to these conclusions after their delivery.33 With regards to the intervention of the ‘rapporteur public’ during the course of the proceedings, one must not neglect to mention that the evolution did not occur without some resistance on the part of France. Until the Strasbourg sentence, the tradition – some call it a custom – was that after giving his conclusions the ‘commissaire du gouvernement/rapporteur public’ would participate in the deliberations without the right to vote.34 Finding this presence contrary to the equality of means, the Court condemned this presence. For a while, France nevertheless tried to maintain it, accepting, in vain, that this presence remains silent. Consequently, the system of intervention by the commissaire du gouvernement was changed. Thus, in open court, counsel may present their oral observations before the ‘rapporteur public’ presents his conclusions.35 Moreover, whereas in front of administrative appeal courts and administrative courts, the ‘rapporteur public’ is excluded from the deliberation, in front of the Conseil d’Etat, another somewhat cryptic solution has been chosen: unless otherwise requested by one of the parties at anytime during the proceedings before the deliberation, the ‘rapporteur public’ assists in the deliberation, without participating.36 It may be noted that these modifications have often been experienced as a rupture with the culture and the traditions of administrative justice, which explains the long adjustment process of the norms and the unusual solutions chosen. The decree of 23 December 2011, which occurred 10 years after the Kress ruling, still deals with this question, deciding on the timing of intervention of the ‘rapporteur public’. Some have not hesitated to talk about a whirlwind of European origin to recount the modifications brought to the status of the ‘rapporteur public’. 33

See respectively the following articles of CJA from 14 Decree, 7 January 2009: Arts. 711-3 and 712-1 ‘if the judgment of the case must intervene after the ‘rapporteur public’s conclusions have been pronounced, the parties or their representatives are enabled to know, before the audience, the meaning of the conclusion on the case they are involved in’; Art. R731-3 ‘Subsequently to the presentation of the ‘rapporteur public’ conclusions, every party to the case can address to the president of the formation of judgment a note adjourned for further consultations’.

34

This participation was justified by the necessity for him to adopt the results and by the utility of his presence for the members of the judging foundations who might question him given his knowledge of the case.

35

Art. R733-1 of the CJA.

36

Art. R733-3 of the CJA; before the Tribunal administrative (TA) and the Cour administrative d’appel (CAA), Art. R732-2 expects that ‘the decision is deliberated outside the presence of the parties and of the ‘rapporteur public’.

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Secondly, the Procola and Société Sacilor Lormines37 solutions imposed a reinforced specialization within the judicial formations of the Conseil d’Etat. The Société Sacilor Lormines ruling brought a refined answer regarding compatibility of the duality of the consultative and jurisdictional functions of the Conseil d’Etat with the requirements of Article 6-1 of the Convention relating to the guarantee of an ‘independent and impartial court’. To address the difficulties, the convention requirements were assimilated by adopting the rules taken from the decree No. 2008-225 of 6 March 2008.38 First of all, we look back over the principle of double affiliation of Conseil d’Etat members for administrative and jurisdictional formation.39 Second of all, the rule which stipulates Conseil d’Etat members cannot participate in the judgment of appeals against decisions which were prepared by the sections to which they belong, if they took part in the deliberation’ to which succeeded a customary practice known as ‘du deport’, which is reintroduced into the code of administrative justice. 40 Furthermore, in such cases, petitioners who so request, may now obtain disclosure of the list of those who participated in the deliberation of the ruling. 41 Moreover, the difficulties likely to arise from the principle of dual allocation are taken into account by the adoption of new rules governing the composition of jurisdictional formations, which have been re-engineered. 42 There is thus an undeniable progression towards the separation of personnel, which nevertheless 37

 P rocola v Luxembourg 28 September 1995 ECtHR, and RFDA 9 November 2006, ECtHR, and Revue francaise de droit administratif 2007, study by J.L. Autin and F. Sudre, p. 342.

38

P. Gonod, ‘Le Conseil d’Etat à la croisée des chemins ?’, AJDA 2008,630.

39

There has been some amendments to this principle; the ‘Conseillers d’Etat’ can be appointed to two administrative sections and ‘maîtres des requêtes’ with more than four years of activity within the Conseil d’Etat can be exclusively appointed either to an administrative section or to the litigation section.

40

A rule which reveals an old preoccupation, stipulated by Art. 20 of the law of 24 May 1872, Art. R.12221-1 states: ‘Without prejudice to the R. 721-1 article dispositions, the Conseil d’Etat members cannot participate to the judgment of the pleas against the decisions taken after the recommendation of the Conseil d’Etat, if they took part in the deliberation of this recommendation’.

41

Nevertheless if the rules apply in the litigation assembly in regard to the president of the concerned sections, no disposition is taken concerning the hypothesis where the challenged decision would have been prepared by the general assembly of the Conseil d’Etat: as already noticed by Edouard Laferrière (n 15, 313) Art. 20 does not apply.

42

The two members of the consultative formations sitting in the litigation section are suppressed and the member of an administrative section sitting in reunited sub-section is replaced by a litigation section member chosen by its president outside the reunited sub-sections. The litigation assembly is moreover enlarged, with the new presence of four sub-section presidents, who are the oldest of their colleagues; its composition is thus changed to 17 members – a number which is maintained by replacement mechanisms, see Art. R.122, which states the majority is allocated to litigation, and the Conseil d’Etat vice-president who chairs it loses the deciding vote – so often criticized – that he used to have in case of a tie.

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does not affect the overlapping of the consultative and jurisdictional roles, which explains that this overlapping cannot, necessarily, be complete. Administrative justice is therefore forced to assimilate a European legal culture which results in a necessary adaptation of judicial proceedings and, within the Conseil d’Etat, of the judicial function. 43 Consequently, the insertion of France in the European legal area highlights again, if proof is still necessary, the national character of the Conseil d’Etat, this ‘strong national institution’ as it has wisely been described, and whose function is itself based on numerous traditions. Without denying the reality of change, we cannot refrain from questioning the character of these deceptive assimilations, and questioning whether, to quote the famous words of Lampedusa, everything must change in order for nothing to change… The conception of the requirements of discipline adopted in France in certain institutions constitutes another example of sensitive recognition of national traditions. The Incontestability of ‘Mesures d’Ordre Intérieur’ The recognition of this category of ‘mesures d’ordre intérieur’, i.e. administrative decisions deemed of minor importance despite their effect on the legal situation of their recipient, reflects a tradition of protection of the discipline in certain institutions, against the respect of law. If more sustained attention to the respect of rights and liberties has led to a significant reduction in the list of these measures, a reorientation, if not a renunciation, of this tradition has taken place under European influence. The jurisdictional control has for example penetrated the exercise of disciplinary powers within armies and prisons, a judge recognising in two cases in 1995 military and penitentiary sanctions. 44 In his conclusions, the commissaire du gouvernement, Patrick Frydman, stated that: ‘the reversal of your traditional position seems to be implied by (…) a legal factor that is also not unrelated to the more general evolution of the law of mesures d’ordre intérieur’ the obligations resulting from certain commitments made by France, and, especially, to the European Convention on Human Rights and Fundamental Freedoms of 4 November 1950’. Case 3: Frontal Opposition Between a Legal Rule and a Legally Unenforceable Rule: ‘Law Versus Traditions’ Some traditions have developed within certain institutions alongside existing legal norms, although dealing with the same subject, and being accepted by them. The question is interesting, not so much from the point of view of the legal resolution of this competition – which in itself poses no great difficulties since when competition sets in, the law prevails against tradition; 45 – but with 43

P. Gonod, ‘Sur les réformes en cours de la justice administrative’, Dossier Justice Administrative, AJDA 2012, 1195.

44 45

CE, 17 February 1995, Hardouin et Marie, Grands arrêts de la jurisprudence administrative (GAJA) n°95.

A classical subject often studied in philosophy: can law be opposed to traditions? See the legal studies, for example, R. Granger, ‘La tradition en tant que limite aux réformes du droit’, RIDC 1979, 39.

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regard to the effects produced by the single application of the legal norm, negation of which set aside the tradition. In this case, it is less the competition itself which allows us to identify the tradition, but rather a longstanding coexistence between tradition and the legal norm. In other words, this legal rule applies to a given situation, but where this rule is practically superfluous, as long as it has not been claimed, insofar as it was conditioned by the respect of a tradition that it contents itself with registering. Academic traditions are an example of this. These two institutions: the Conseil d’Etat and the Cours des comptes occupy a specific place within the French administrative world, because they both exercise a jurisdictional function, and in exercising this function, their independence is guaranteed notably by some rules which are not legally enforceable, but are old traditions deeply embedded in their operation: such is the case for certain appointments pronounced within them. For example, the head of State has discretionary power over the choice, among the conseillers d’Etat, of the vice-president and the presidents of the Conseil d’Etat’s divisions. Under the III Republic, concerning the vice-president, the choice generally depended on seniority, but from the end of the 19th century,(and it wasn’t until the IV Republic that this tradition was abandoned), the rule of law was applied in a new constitutional environment. The continued acceptance of a form of heritage enables us to assert the existence of tradition without necessarily witnessing a conflict. The head of State’s decision when appointing the presidents of sections is also traditionally dependent on a presentation made by the Office of the Conseil d’Etat (the ‘body’, in itself traditional, is that of the vice-president deliberating with the sections’ presidents). In concrete terms, the vice-president presents three names in order of preference for the appointment to the administrative sections, and one unique name for the litigation section. This tradition constitutes a sizeable guarantee of independence towards political power, especially when it concerns the election of the chief of the body who serves as the supreme administrative judge, even if it’s common knowledge that the development of the presentation doesn’t prohibit prior exchanges with the executive power. Recently, the head of State exercised his exclusive jurisdiction, diverging from tradition, to designate the president of the new administrative section. He rejected three names which were presented to him in favor of his own ‘candidate’. This situation is exceptional, as even if the President of the Republic does not respect the indicated order, he will nevertheless hesitate to act against the expressed will of the Conseil d’Etat. Of course, in law, the attitude of the head of State cannot be challenged since he has merely exercised one of his powers in a regular way; on the other hand, it shows an explicit will to put an end to a tradition understood as operating against its own power. However, it is necessary to ask ourselves about the marginalization of a tradition which holds some guarantees, especially concerning the appointment of the litigation section presidency: the choice, made by the body, of the head of the administrative jurisdiction is important for ensuring its independence in terms of political power. Admittedly,

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in this recent case, the force of resistance of the institution manifested itself: finally none of the Conseiller initially suggested by the office, nor the candidate of the Head of State (his candidacy needing to be presented to the office), were chosen, in favor of a third candidate. This situation has been referred to in a recent book: ‘when the respected vice-president of the body, Jean-Marc Sauvé, came to explain (this tradition) to the Head of State (which concerned the administration section), the latter replied that, since it wasn’t a legal obligation, he would absolve it (…). The media reported that (the Head of State) exclaimed: ‘I’m here to apply the law, not the customs!’. 46 For all that, this particular situation showed the possible negation of tradition: it is easy to imagine the Head of State appointing a Conseiller d’Etat close to him from the outside world, for example his Interior minister, and then this Conseiller d’Etat becoming president of the litigation section, i.e. the head of French administrative jurisdiction, against the Conseil d’Etat. So, it is hoped that the institution, its body, will show a stronger resistance than previously to breaking the tradition, as it conveys the independence of the administrative jurisdiction. Or, perhaps it would be useful to rethink the rules of appointment necessary to protect this independence. An example of the same kind concerns the French Cours des comptes. An appointment within the institution took place despite its First president opting against it; the association of magistrates and former magistrates of the ‘Cours’ protested in theses terms: ‘this appointment, if legally regular, shows a disturbing breach of the principles which have governed the functioning of an independent jurisdiction for decades’. 47 *** This first approach affirms the existence of national traditions in the administrative field, if not in a strict legal field. Beyond a few illustrations, it is difficult to identify a national tradition with certainty. A counter-relief identification prevails, that is to say not during its constitution, but it appears when challenged, or because it is in conflict with the law- even when resulting from tradition – or because it is able to escape the opposing winds which we perceive as a heritage forging the identity of a nation. If organizing the succession of purely pragmatic reasoning, some efforts to the theoretical construction of tradition and national traditions which still constitutes strangely a non-explored scientific field, it appears nevertheless certain that national traditions in administrative law are distinguishable from the characteristics of administrative law. Loosely identified, these national traditions are certainly not an obstacle to the convergence of national legal systems, particularly in the European framework, and moreover they participate in the development of common principles among these systems at a European level. Thus, even if the circumstance of 46 47

J-N. Jeanneney, L’Etat blessé (Flammarion, Café Voltaire, 2012) 46.

Mentioned by J-N. Jeanneney, ibid, 47. For other examples of infringement of traditions by the Head of State see 20-1.

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some traditions could constitute a hindrance to the assimilation of European requirements, that they can weigh on a temporal process which is not material, should not be seen as an opposition to progress.

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chapter 4

German Traditions in Administrative Law Obstacles to a Common Legal Framework? Jens-Peter Schneider

chapter 4



german traditions in administrative law

1 Introduction and Overview

During the 19th century German administrative law undoubtedly developed certain important traditions which are still relevant. However, after the Second World War, German administrative law was also confronted first with a dramatic reorientation fostered by the new constitution and second with important political, societal and economic challenges which resulted in relevant modifications of this field of law.1 In sum, German administrative law has proved to be rather flexible even if certain path dependencies cannot be neglected. Therefore in principle I see no obstacles to a common legal framework following from German administrative law. Indeed German administrative law has valuable traditions to offer European administrative law which may help to increase the required trust within the European administrative union. This article will show in a historical perspective that we have to differentiate between at least three phases of German administrative law:2 • a founding period at the end of the 19th century establishing the classic administrative law under a formal concept of the rule of law, • the re-founding of German administrative law under the Basic Law with a more substantive and individualised concept of the rule of law, and • the ongoing modernisation of German administrative law in reaction to new political and administrative challenges. Europeanisation since the 1980s is unquestionably one of these challenges, perhaps even a dominant one, but we can also observe internal reform processes.



2 German Traditions in a Historical Perspective 2.1 The Founding Period During the Belle Époque of National Administrative Law in Europe

The history of German administrative law is complex, therefore the following remarks cannot be more than a sketchy outline.3 The most obvious 1

R. Wahl, Herausforderungen und Antworten: Das Öffentliche Recht der letzten fünf Jahrzehnte, Berlin 2006, 16 et seq.

2

W. Pauly, ‘Wissenschaft vom Verwaltungsrecht: Deutschland’ in A. von Bogdandy, S. Cassese, P.M. Huber (eds) Handbuch Ius Publicum Europaeum Band IV – Verwaltungsrecht in Europa: Wissenschaft (IPE IV), Heidelberg 2011, § 58 para. 9 et seq.; see also Wahl (n 1), 16 et seq.

3

For more details: W. Klappstein, G.-C. v. Unruh, Rechtsstaatliche Verwaltung durch Gesetzgebung: Entstehung und Bedeutung des schleswig-holsteinischen Landesverwaltungsverfahrensgesetzes für das rechtsstaatliche Verwaltungsrecht, Heidelberg 1987; see also K. Jeserich, H. Pohl and G.-C v. Unruh (eds) Deutsche Verwaltungsgeschichte, Stuttgart 1983-1987; Pauly (n 2) § 58 paras 5-12; M. Stolleis, ‘Entwicklungsstufen der Verwaltungsrechtswissenschaft’, in W. Hoffmann-Riem, E. Schmidt-Aßmann, A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts Band I, 2 Ed., München 2012, § 2 para 26 et seq.; especially on the history of German administrative procedural law: J.-P. Schneider, ‘Codification of Administrative

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reason for the very disjointed nature of its development is the complex unification of Germany as a federal state during the 19th century. 4 As a result, the formulation of administrative law in the different German states was by no means a straightforward and uniform process. The federal nature of the legislative, administrative and judicial practice may also explain why a nation-wide German administrative law was to a large extent merely a scholarly project of comparative law.5 A major question during the 19th century was the introduction of independent judicial review of administrative action.6 Whereas many academics advocated judicial review by independent courts, most states were reluctant to reform the traditional model of administrative review by superior administrative bodies. Independent administrative courts were established first in Baden (1863)7, then in Prussia (1872/75).8 The other states of the German Reich followed, more or less reluctantly. Latecomers were for instance, Hamburg and Bremen, not establishing independent courts until the Weimar Republic.9 Additionally, although the democratic Weimar constitution created an obligation to establish an independent administrative court system on the level of the Reich, no such court was established at national level until 1953 under the new constitutional order of the Basic Law.10 Nevertheless, the main developments were driven by the states’ administrative courts and especially by the Prussian Appellate Administrative Court. For instance the Prussian court developed, in a landmark decision from 1882, a cornerstone of modern liberal police law: the court limited police powers to the legally confined prevention of actual and concrete public dangers.11 In subseProcedure in Germany’, in Jean Bernard Auby et al. (eds) Proceedings of the International Academy of Comparative Law Congress on Codification, May 2012, forthcoming. 4 5

Stolleis (n 3) § 2 para 37 et seq.

Stolleis (n 3) § 2 para 53 et seq.; see also: J.-P. Schneider, ‘Verwaltungsrecht in Europa – Einleitende Bemerkungen zur Verwaltungsrechtsvergleichung’ in J.-P. Schneider (ed) Verwaltungsrecht in Europa. Band 1: England und Wales; Spanien; Niederlande, Göttingen 2007, 25.

6

About the following: E. Schmidt-Aßmann and W. Schenk in F. Schoch, J.-P. Schneider, W. Bier (eds) Verwaltungsgerichtsordnung – Kommentar, Stand Ergänzungslieferung 23 (2012), Einleitung para 72 et seq.; Rüfner, ‘Verwaltungsrechtsschutz’ in Preußen von 1749 bis 1842, Bonn 1962, 23 et seq.; Erichsen, Verfassungs- und verwaltungsgeschichtliche Grundlagen, Frankfurt/M. 1971, 64 et seq.

7

Schmidt-Aßmann and Schenk (n 6), Einleitung para 76; I. Bauer, Von der Administrativjustiz zur Verwaltungsgerichtsbarkeit: die Entwicklung des Rechtsschutzes auf dem Gebiet des öffentlichen Rechts in Baden im 19. Jahrhundert, Sinzheim 1996.

8

Schmidt-Aßmann and Schenk (n 6) Einleitung para 77; St.F. Pauly, Organisation, Geschichte und Praxis der Gesetzesauslegung des (Königlich) Preußischen Oberverwaltungsgerichtes 1875 – 1933, Frankfurt/M. 1987.

9

Ehlers, in F. Schoch, J.-P Schneider and W. Bier (eds) Verwaltungsgerichtsordnung – Kommentar, Stand Ergänzungslieferung 23 (München 2012) § 40 para 1.

10 11

Schmidt-Aßmann and Schenk (n 6) Einleitung para 79-80.

Sammlung der Entscheidungen des Preußischen Oberverwaltungsgerichts 1882 vol. 9, 353 et seq. (also published in: I. v. Münch and T. Vogel (eds) Gerichtsentscheidungen zum Polizeirecht, Atheneum Verlag

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quent cases the court established additional limits on the discretion of police authorities by incorporating a suitability and a necessity test 12 which have been since the end of the Second World War, together with a new balancing test, elements of the German principle of proportionality.13 The last important step to be mentioned here is the characteristic formalisation of German administrative law established most effectively by Professor Otto Mayer from Strasbourg University in his extremely influential textbook on German Administrative law (1895/1896).14 The central idea of his approach was that administrative authorities must use certain legal forms, particularly administrative acts (Verwaltungsakt) for unilateral single case decision making.15 Thus, administrative arbitrariness should be avoided by the use of defined legal forms. This focus on specific legal forms or instruments is still dominant in German administrative law thinking as everyone will realize when comparing the tables of content of German and English textbooks in this field of law.16 Overall, German administrative law in the 19th century was more focussed on the formal protection of subjective rights under the rule of law and less on the institutionalisation of procedures for democratic participation in or democratic control of administrative decision making.17 The focus of the classic administrative law was the formal protection of the status negativus of citizens against the state. Administrative actions infringing citizens’ rights of property and freedom needed parliamentary authorisation18, but the national constitution

1971, 3 et seq.); S. Heinsohn, Der öffentlichrechtliche Grundsatz der Verhältnismäßigkeit, Diss. Münster 1997, 39 et seq. 12

Heinsohn (n 11) 42 et seq, focusing of the dogmatic relationship with the limitation of police powers to legally defined objectives; see in contrast B. Remmert, Verfassungs- und verwaltungsgeschichtliche Grundlagen des Übermaßverbotes, Heidelberg 1995, 124 et seq., 164-165, 169 et seq. emphasizing the foundation of the principle in the idea of a rational state by philosophers during the Enlightenment.

13

Heinsohn (n 11) 61 et seq.; one of the most prominent early accounts under the new constitutional order is P. Lerche, Übermaß und Verfassungsrecht, Köln 1961.

14

O. Mayer, Deutsches Verwaltungsrecht 2 vol. Munich and Leipzig, 1895/96; on Otto Mayer: Stolleis (n 3) § 2 para 60 et seq.; Pauly (n2), § 58 para 9-10.

15

Pauly (n 2), § 58 para 9; R. Schmidt-de Caluwe, Der Verwaltungsakt in der Lehre Otto Mayers, Tübingen 1999, 19 et seq.; M. Engert, Die historische Entwicklung des Rechtsinstituts Verwaltungsakt, Frankfurt/M. 2002, 122 et seq.

16

For German textbooks see for example H. Maurer, Allgemeines Verwaltungsrecht, 18. Ed. München 2011; W. Erbguth, Allgemeines Verwaltungsrecht, 5. Ed., Baden-Baden 2013; for British textbooks see for instance: P.P. Craig, Administrative Law, 7. Ed., London 2012; H.W.R. Wade and C.F. Forsyth, Administrative Law, 10. Ed., Oxford 2011.

17

On earlier debates about self-government: Pauly (n 2) § 58 para 7; on the subsequent proposal (during its time mainly neglected) of a concept of democratic legitimation by A. Merkl (1927) Chr. Möllers, ‘Historisches Wissen in der Verwaltungsrechtswissenschaft’, in: E. Schmidt-Aßmann and W. Hoffmann-Riem (eds) Methoden der Verwaltungsrechtswissenschaft, Baden-Baden 2004, 157.

18

Remmert (n 12), 135.

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did not provide for directly applicable fundamental rights.19 As a result the legislative bodies had a very broad discretion whether and to what extent to create concrete subjective rights. In addition to this, the status positivus, i.e. positive entitlements for benefits from the state was at least under-conceptualised in the classic period although in reality many local governments provided public services.20 The same was true with regard to the status activus concerning rights of active participation in public decision making processes. A remarkable singular exception was the law of local government which emerged at least gradually during the 19th century.



2.2 The Fundamental Crisis During the III. Reich

This limited but nevertheless promising development of German administrative law was radically stopped by the Nazi dictatorship with: • its concentration of all administrative powers in accordance with the ‘Führerprinzip’ (principle of leadership), • its anti-formalism, • the acceptance of the Nazi ideology as a substantial argument in legal interpretation and methodology, and • the widespread abolishment of judicial review against administrative actions.21



2.3 Re-Founding of German Administrative Law under the Basic Law

Therefore, in the first years after the Second World War the central issue was the re-establishment of effective judicial review procedures and of an independent administrative court system according to the far-reaching guarantees under the new democratic constitution, the German Basic Law.22 The Basic Law established a very powerful constitutional order: the starting point of the new constitution was no longer the state and its organisational structure but human dignity and other subjective fundamental rights. Most importantly, Article 1 III GG provides that the basic rights laid down in the following articles shall bind the legislature, the executive and the judiciary as

19

F. Hufen, Staatsrecht II, 3. Ed., München 2011, 25; J. Ipsen, Staatsrecht II, 15. Ed., München 2012, para 41-42; B. Pieroth and B. Schlink, Grundrechte, 28. Ed. Heidelberg 2012 para 26 et seq.; R. Suppé, Die Grund- und Menschenrechte in der deutschen Staatsrechtslehre des 19. Jahrhundert, Berlin 2004.

20 21

Pauly (n 2) § 58 para 10; Möllers (n 17) 156-157.

P. Stelkens and M. Sachs in P. Stelkens, H.J. Bonk and M. Sachs, Verwaltungsverfahrensgesetz – Kommentar, 6. Ed., München 2001, Einleitung para 8; see also Pauly (n 2) § 58 para 13-14; Schmidt-Aßmann and Schenk (n 6) Einleitung para 81.

22

P. Stelkens and M. Sachs (n 21) Einleitung, para 10; see also Pauly (n 2), § 58 para 15 et seq.; Wahl, (n 1) 16 et seq.

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directly applicable law.23 To enforce these obligations, Article 19 IV GG provides a guarantee of effective judicial review24 and Article 93 GG provides everyone the right to attack infringements of his or her basic rights before the newly founded Constitutional Court.25 The Constitutional Court is even endowed with the power to strike down parliamentary legislation.26 By these guarantees the Basic Law established a strong interdependency between administrative and constitutional law. This new interdependency has been correctly interpreted as a form of re-founding German administrative law.27 Although the new German administrative law has obviously drawn on traditions of the classic period including the focus on legal forms, it also implied major and fundamental reorientations. To highlight just the most important ones: • Broadening the scope of judicial review which was in classic times limited to the control of administrative acts.28 • Intensifying the protection of subjective rights by a more substantial understanding of the rule of law. Prominent examples of this development are court rulings during the 1950s concerning the (not unlimited) protection of legitimate expectations even if they are based on unlawful administrative actions29, a concept which was strongly opposed by supporters of the classic approach.30 More generally, the administrative courts established a high level of substantial judicial control of administrative actions by limiting administrative discretion considerably and by the extensive use of the principle of proportionality as an effective review standard.31 • The courts also extended dramatically the status positivus without any change of the relevant statutes. Examples are entitlements to public welfare which were in certain cases directly drawn from the new basic rights32 or 23

Stern, Staatsrecht III/1, München 1988, 1178: ‘Schlüsselnorm’ (key norm); Höfling, in Sachs (ed.) GG – Kommentar, 5. Ed. München 2009, Art. 1 para 80 et seq.

24

Wahl (n 1) 39: ‘Fundamentalveränderung’ (fundamental change); see also Schmidt-Aßmann and Schenk (n 6) Einleitung para 2 et seq.

25

On function and relevance of this constitutional complaint procedure: K. Schlaich and S. Korioth, Das Bundesverfassungsgericht, 8. Ed., München 2010, para 194-195, 203 et seq.

26

For a comprehensive analysis including the intensive debates on judicial review of legislative acts in the 19th century: Schlaich and Korioth, (n 25) para 111 et seq.; for a comparative perspective: A. Weber, Europäische Verfassungsvergleichung, München 2010, 320 et seq.

27

Wahl (n 1) 18, 33.

28

Schmidt-Aßmann and Schenk (n 6) Einleitung para 91, 161; Ehlers (n 9) § 40 VwGO para 1, 13.

29

First introduced by Oberverwaltungsgericht Berlin (1957) Deutsches Verwaltungsblatt 503; consolidated by Bundesverwaltungsgericht, Entscheidungssammlung vol. 5, 312; vol. 9, 251; see also Maurer (n 16) § 11 para 21.

30

See the overview by Bullinger, ‘Vertrauensschutz im deutschen Verwaltungsrecht in historischkritischer Sicht’, Juristenzeitung 1999, 905-906; see also Wahl (n 1) 39.

31

Pauly (n 2) § 58 para16; Wahl (n 1) 24, 25-26, 34.

32

Bundesverwaltungsgericht, Entscheidungssammlung vol. 1, 159; Wahl (n 1) 23, 26-27.

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the invention of entitlements to protection of subjective rights by police authorities against third parties.33 • The expansion of the principle of legality by strengthening the judicial control of parliamentary acts either by direct complaints from individuals filed to the Constitutional Court or by preliminary procedures initiated by administrative courts.34 Moreover, the courts began to interpret existing statutes in conformity with the new constitutional order giving less weight to the subjective intent of the original legislator.35 As a result of these developments, German administrative law after the Second World War has been remodelled by an unparalleled process of legalisation, by focussing on the effective substantive protection of subjective rights and by an intensive juridification.36



2.4 Modernisation of German Administrative Law in Reaction to New Political and Administrative Challenges

Development did not end with this specific form of constitutionalisation and the ‘new’ traditions connected with this process, however. In fact German administrative law has shown a remarkable degree of flexibility to adjust to new factual, societal, economic and political challenges. Interestingly, many of these developments took place in specific fields of administrative law and it took some time for scholars of general administrative law to fully realize these developments and integrate them into their systems of administrative law.37



2.5 New Forms of Administrative Action: Planning Law

The classic administrative law was conceptualised to a great extent by analysing the rules on prevention of concrete public dangers. The main idea was that police authorities were entitled to intervene only if a public danger is adequately concrete. Thus, the classic form of legal programming was 33

Bundesverwaltungsgericht, Entscheidungssammlung vol. 11, 95; Wahl (n 1) 24.

34 35

Art. 93 (1) no. 4a; Art. 100 Basic Law.

Wahl (n 1) 37-38; generally German Courts prefer an ‘objective’ approach arguing with the ‘real’ legislative intent, for a critical account of this approach: K.F. Röhl and F.C. Röhl, Allgemeine Rechtslehre, 3. Ed., Köln 2008, 628 et seq.; see also Wank, Die Auslegung von Gesetzen, 4. Ed., München 2008, 29 et seq.

36 37

Pauly (n 2) § 58 para 16; Wahl (n 1) 40-41.

The most important scholarly project in this regard has been the discussion series about the reform of German administrative law initiated by W. Hoffmann-Riem and E. Schmidt-Aßmann, see especially the ten volumes of their book series ‘Schriften zur Reform des Verwaltungsrechts’ (1993-2004); E. Schmidt-Aßmann, Das Allgemeine Verwaltungsrecht als Ordnungsidee, 1. Ed. Berlin 1998 / 2. Ed. München 2006; W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts vol. 1-3, 1. Ed. München 2008-2009 / 2. Ed. München 2012-2013.

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a conditional one thereby realising a Weberian model of bureaucratic administration.38 If certain requirements described by the law are fulfilled then the authority is entitled to take more or less predetermined actions controlled at least by the principle of proportionality. The German economic revival during the 1950s led to a boost in construction in German towns and cities as well as to many large infrastructure projects. In a highly populated country like Germany this created a need for coordination by planning. Moreover ‘planification’ was en vogue during this period. Without any clear guidance by the relevant statutes the Federal Administrative Supreme Court invented a clear set of control standards for planning decisions39, thereby transforming statutes without the traditional conditional programming into flexible standards for judicial control. 40 Interestingly the court integrated these objective standards into the subjective concept of legal protection.



2.6 Codification of Administrative Procedural Law

Until 1976, administrative procedures were regulated only in sector specific federal acts. General codifications existed during the 1950s and 1960s only in a small number of states41, therefore the legislative landscape was fragmented and case law played an important role in supplementing it. Important lawyers like the then-president of the Federal Administrative Supreme Court preferred this fragmented status quo to codification because they envisaged less flexibility, impractical legislative or political compromises, limited effects according to the federal division of legislative competences and a petrification of administrative procedural law which was still less mature than private law at the time of its codification. 42 In contrast, other high-ranking judges favoured a general codification to the uncoordinated regulation of aspects 38

J.-P. Schneider, ‘Regulation and Europeanisation as Key Patterns of Change in Administrative Law’ in Matthias Ruffert (ed) The Transformation of Administrative Law in Europe, München 2007, 307 et seq.; C. Franzius, ‘Modalitäten und Wirkungsfaktoren der Steuerung durch Recht, in W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts vol 1, 2. Ed. München 2012, § 4 para 13; Hoffmann-Riem, ‘Verwaltungsrechtsreform’, in: Hoffmann-Riem/Schmidt-Aßmann/Schuppert, Reform des Allgemeinen Verwaltungsrechts – Grundfragen, Baden-Baden 1993, 115, 117.

39

Bundesverwaltungsgericht, Entscheidungssammlung vol. 34, 301; see also vol. 48, 56; the court could draw only on very limited scholarly work in this field like especially W. Hoppe, ‘Bauleitplanung und Eigentumsgarantie’, (1964) Deutsches Verwaltungsblatt, 165.

40

W. Hoppe, ‘Entwicklung von Grundstrukturen des Planungsrechts durch das Bundesverwaltungsgericht’, (2003) Deutsches Verwaltungsblatt, 697; Wahl (n 1) 50 et seq.

41

Stelkens and Sachs (n 21) Einleitung, para. 11.

42

Stelkens and Sachs (n 21) Einleitung, para. 1, 19; see also: Baring, ‘Bloß kein Gesetz’, Juristische Rundschau 1960, 241 et seq.; Chr. von Unruh, ‘Kodifiziertes Verwaltungsrecht’, Neue Zeitschrift für Verwaltungsrecht 1988, 690, 694; W. Kahl, ‘Das Verwaltungsverfahrensgesetz zwischen Kodifikationsidee und Sonderrechtsentwicklungen’ in Hoffmann-Riem/Schmidt-Aßmann (eds) Verwaltungsverfahren und Verwaltungsverfahrensgesetz, Baden-Baden 2002, 99/100.

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of general administrative law in sector specific acts. 43 The academic community was equally divided. 44 The driving forces behind codification have been administrative practitioners, especially Klaus von der Groeben who convinced the Deutsche Juristentag, a leading association of practicing as well as academic lawyers, to vote in 1960 in support of codification. 45 The main arguments were increased legal certainty and legal protection for the citizen, increased effectiveness and efficiency of public administration, a uniform basis for legal education of lawyers and civil servants and some relief for the courts. It took another 16 years, a commission of administrative practitioners from all states as well as from the federal level and several draft bills to finalise the codification process in 1976. 46 The process gained a decisive momentum after the general election of 1972 with the idea of fostering participation in administrative procedures. 47



2.7 New Standards for Administrative Intervention and Participation: Environmental Law

Another major turning point was the conversion of a few outdated provisions into the intensively and innovatively regulated field of environmental law during the 1970s and 1980s. 48 The most important modifications of the classic administrative law concern: • the precautionary principle which differs clearly from the classic requirement of a concrete public danger for state interventions, 49 43

Haueisen, ‘Unnötige Normierung von Grundsätzen des allgemeinen Verwaltungsrechts im besonderen Verwaltungsrecht’, Die öffentliche Verwaltung 1959. 5 et seq.

44

See especially the proceedings of the major academic association for public law in 1958: Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 17 (1959), 118 et seq. with antithetic reports by Bettermann and Melichar and a lively, mostly skeptical debate following.

45

Verhandlungen des 43. Deutschen Juristentags 1960 ‘Empfiehlt es sich, den allgemeinen Teil des Verwaltungsrechts zu kodifizieren?’, München 1962; see also: K. Von der Groeben, ‘Über die Notwendigkeit eines allgemeinen Verwaltungsgesetzes’ (1966) Deutsches Verwaltungsblatt, 289 et seq.; Chr. von Unruh (n 42) 690, 694; Carl H. Ule, ‘Die Kodifizierung des Verwaltungsverfahrensrechts’ in A. Jeseric, H. Pohl and J.-C v. Unruh (eds) Verwaltungsgeschichte V, Stuttgart 1987, 1162 (1170/71); for a recent account of advantages: Kahl (n 42) 97/98.

46

For a comprehensive documentation: W. Klappstein and G.-Chr. v. Unruh, Rechtsstaatliche Verwaltung durch Gesetzgebung: Entstehung und Bedeutung des schleswig-holsteinischen Landesverwaltungsverfahrensgesetzes für das rechtsstaatliche Verwaltungsrecht, Heidelberg 1987; for a short account: J.-P. Schneider, ‘Strukturen und Typen von Verwaltungsverfahren’, in W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts Band II: Informationsordnung, Verwaltungsverfahrensarten, Handlungsformen, 2. Ed., München 2012, § 28 para 9-10.

47

H.H. Rupp, ‘Freiheit und Partizipation’ (1972) Neue Juristische Wochenschrift , 1537-43; Stelkens and Sachs (n 21) Einleitung para. 1, 58; see also: Ule (n 45) 1162 (1172-74).

48

Hoffmann-Riem (n 38) 115, 118 et seq.; Wahl (n 1) 55 et seq.

49

R. Fleury, Das Vorsorgeprinzip im Umweltrecht, Köln 1995; E. Rehbinder, Das Vorsorgeprinzip im internationalen Vergleich, Baden-Baden 1991; Rengeling, Bedeutung und Anwendbarkeit des Vorsorgeprinzips im

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• the establishment of many new forms of administrative action besides the classic administrative act like economic instruments, informal and consensual administrative actions, the external relevance of internal administrative guidelines or new forms of regulated self-regulation through industry norms,50 • the integration of third parties into the subjective concept of legal protection while in the classic approach only the addressee of an administrative act could challenge that act in court,51 • the integration of expert knowledge into administrative procedures as well as the opening of those procedures to broad public participation.52



2.8 New Forms of Administrative Discretion: Risk Regulation and Economic Regulation

The modernisation of German administrative law has also modified the restrictive concept of administrative discretion established after the terrible examples of administrative arbitrariness during the 3rd Reich under the Nazi dictatorship.53 The realisation of the increasing need for flexible risk management in the field of environmental law encouraged German administrative lawyers to rethink their approach towards administrative discretion.54 Just recently the German constitutional court accepted a more flexible review of administrative decisions in the field of telecom regulatory law as promoted by the Federal Administrative Supreme Court using the innovative term ‘regulatory discretion’.55 europäischen Umweltrecht (2000) Deutsches Verwaltungsblatt, 1473. 50

U. Ramsauer, ‘Allgemeines Umweltverwaltungsrecht’ in H.-J. Koch (ed) Umweltrecht, 2. Ed, München 2007, § 3 para 80 et seq.; Hoffmann-Riem (n 38) 115, 145 et seq.

51

F. Schoch, ‘Gerichtliche Verwaltungskontrollen’ in W. Hoffmann-Riem,E. Schmidt-Aßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts vol 3, 2009, § 50 para 133 et seq.; S. Schlacke, Überindividueller Rechtsschutz, Mohr. Siebeck 2008.

52

J.-P. Schneider, ‘Strukturen und Typen von Verwaltungsverfahren’ in W. Hoffmann-Riem, E. SchmidtAßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts vol. 2, 2. Ed., München 2012, § 28 para 69 et seq.; H.C. Röhl, Ausgewählte Verwaltungsverfahren in ibid, § 30 para 24 et seq.; see also J.-P. Schneider, ‘Innovationsverantwortung in Verwaltungsverfahren’ in M. Eifert and W. Hoffmann-Riem (eds) Innovationsverantwortung, Berlin 2009, 287 et seq.

53

Wahl (n 1) 19, 29.

54

W. Hoffmann-Riem, ‘Eigenständigkeit der Verwaltung’ in W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts vol. 1, 2. Ed., München 2012, § 10 para 70 et seq.; M. Jestaedt, ‘Maßstäbe des Verwaltungshandelns’ in H.U. Erichsen and D. Ehlers (eds) Allgemeines Verwaltungsrecht, 13. Ed., Berlin 2006, § 10 para10 et seq.

55

Bundesverwaltungsgericht, Entscheidungssammlung (BVerwGE) vol. 131, 41 et seq.; Multimedia und Recht 2009, 786 et seq.; (2010) Neue Zeitschrift für Verwaltungsrecht, 1359 et seq.; (2012) Neue Zeitschrift für Verwaltungsrecht, 1047 et seq.; (2012) Deutsches Verwaltungsblatt, 357 et seq.; Bundesverfassungsgericht, (2012) Neue Zeitschrift für Verwaltungsrecht, 694 et seq.; J.-P. Schneider, ‘Telekommunikation’ in

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2.9 New Forms of Cooperation Between Administrative Authorities and Private Parties

During the 1990s German administrative law was confronted with the global trend towards privatisation and the liberalisation of state (or private) monopolies, especially in the infrastructure industries like telecommunications, railways, energy supply or postal services. As a result new forms of public private partnerships were established and the state reduced its direct responsibilities for the provision of public services remarkably. Today the state relies increasingly on private enterprises. As we have learned during recent years, this did not mean dramatic deregulation: instead the state had to re-regulate the private providers in order to guarantee an acceptable level of those services of general interest.56 In this process German administrative law integrated many new instruments and organisational arrangements, for instance ‘independent’ regulatory authorities,57 new planning mechanisms58 or innovative mechanisms for the allocation of public goods like auctions.59



2.10 Acceleration of Administrative Procedures

German reunification and the need to rebuild the infrastructure in East Germany as well as the competitive pressures for German industry caused by Europeanisation and globalisation of markets fostered an intensive debate in 1990s about the need and the possibilities to accelerate procedures for applications in the field of environmental law or other fields of law with a high relevance for business.60 The legislator reacted first with experimental legislation confined to East Germany, which was then generalised after a few years for the whole German territory.61 A central component of this legislative M. Fehling and M. Ruffert (eds) Regulierungsrecht, München 2010, § 8 para 124 et seq.; J.-P. Schneider, ‘Rechtsschutz im Regulierungsverwaltungsrecht’ in ibid, § 22 para 19; see also Bundesverfassungsgericht, Entscheidungssammlung (BVerfGE) vol. 129, 1 et seq. 56

See M. Fehling and M. Ruffert (eds) Regulierungsrecht, Tübingen 2010; J.-P. Schneider, Liberalisierung der Stromwirtschaft durch regulative Marktorganisation, Baden-Baden 1999; J.-P. Schneider (n 38) 311 et seq.; J. Kühling, Sektorspezifische Regulierung in den Netzwirtschaften, München 2004.

57

G. Britz, ‘Organisation und Organisationsrecht der Regulierungsverwaltung in der öffentlichen Versorgungswirtschaft’ in Fehling and Ruffert (n 55) § 21 para 39, 49 et seq., 56 et seq.; J.-P. Schneider, ‘Telekommunikation’, in Fehlin and Ruffert (n 55), § 8 para 76 et seq.

58

Schneider (n 55) § 8 para 33; J.-P. Schneider, ‘Infrastrukturausbau als Aufgabe des Regulierungsrechts’ in M. Fehling and K.W. Grewlich (eds) Struktur und Wandel des Verwaltungsrechts, Baden-Baden 2011, 69, 72 et seq.

59

Schneider (n 55) § 8 para 34 et seq.; J.-P. Schneider, ‘Zur Ökonomisierung von Verwaltungsrecht und Verwaltungsrechtswissenschaft’, Die Verwaltung vol. 34 (2001), 317, 327 et seq.

60

M. Bullinger, Beschleunigte Genehmigungsverfahren für eilbedürftige Vorhaben, Baden-Baden 1991; P. Rombach, Der Faktor Zeit in umweltrechtlichen Genehmigungsverfahren, Baden-Baden 1994.

61

See: M. Schröder, ‘Das neue Infrastrukturbeschleunigungsgesetz – auf dem Weg zu zügigerer Realisierung von Vorhaben?’, (2007) Natur und Recht , 380 et seq.; R. Steinberg, ‘Zeit, Umwelt und

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strategy was to restrict possibilities for public participation. In the meantime the German governments had to learn that conflicts caused by large infrastructure or industry projects may be formally contained in this way but will still cause delays through all kinds of informal resistance. Therefore more recently legislation has been enacted trying to accelerate the application procedure for power lines by new forms of early participation in order to increase the chance for societal acceptance of new projects and to minimise conflicts.62



2.11 New Forms of Administrative Information Management and Communication

It is obvious that the internet and the global trend towards an information society have dramatically modified the options as well as the expectations of citizens concerning administrative information management and the communication between authorities and citizens. E-government structures63 and freedom of information acts64 are just two examples of legal reactions. Both examples are connected with modifications of classic paradigms of administrative law. A central feature of E-government strategies is the one-stop concept. This conflicts with the highly differentiated structure of German administration at local, state as well as at national level. Freedom of information acts conflict with the long standing tradition of administrative secrecy in Germany which was traditionally only partly challenged by limited access rights during an administrative procedure if the private party could show a relevant subjective interest.65

Beschleunigung bei der Planung von Verkehrswegeprojekten’, (1996) Natur und Recht, 6 et seq.; A. Voßkuhle, ‘Ökonomisierung’ des Verwaltungsverfahrens, (2001) vol. 34 Die Verwaltung , 347 et seq.; for an empirical analysis: J. Ziekow, M.-P. Oertel and A. Windoffer, Dauer von Zulassungsverfahren, Köln 2005. 62

J.-P. Schneider (n 46) § 28 para 83, 90a; J.-P. Schneider, ‘Akzeptanz für Energieleitungen durch Planungsverfahren’, in: D. Heckmann, R.Schenke and G. Sydow (eds) Festschrift für Thomas Würtenberger, 2013 (forthcoming).

63

M. Eifert, Electronic Government, Baden-Baden 2006; H. Hill and U. Schliesky (eds), Herausforderung e-Government, Baden-Baden 2009; G. Britz, ‘Elektronische Verwaltung’ in W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds) Grundlagen des Verwaltungsrechts, vol. 2, 2. Ed, München 2012, § 26.

64

F. Schoch, Informationsfreiheitsgesetz (IFG) – Kommentar 2009; F. Schoch, ‘Der deutsche Professorenentwurf für ein Informationsfreiheitsgesetzbuch unter besonderer Berücksichtigung Beachtung des Ausgleichs zwischen Informationsfreiheit und Datenschutz’, in I. Lipowicz and J.-P. Schneider, Perspektiven des deutschen, polnischen und europäischen Informationsrechts, Göringen 2011, 11 et seq.

65

J.-P. Schneider (n 46) § 28 para 51 et seq.; J.-P. Schneider and M. Fehling, ‘Access to Information held by the State and Privacy’, in R. Bernhardt and U. Beyerlin (eds), Reports on German Public Law – XIIIth International Congress of Compa­rative Law, Montreal 1990, Heidelberg 1990, 167 et seq.

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2.12 New Forms of Transnational Cooperation Between Administrative Authorities

The last development refers to new forms of transnational cooperation between administrative authorities as a reaction to intensified European integration and the need for effective transnational supervision of cross-border exchange of goods and services.66 At least some basic rules for this element of the composite European administration have recently been integrated into the German APA.67



2.13 Interim Result

It is obvious that German administrative law has been subject to major developments during the last sixty years.68 Therefore, it would be a misconception to reconstruct it as a static legal order. In contrast German administrative law has proved to be flexible enough to be adjusted to many and very different challenges. This does not mean that those modifications were undisputed or that all of them were integrated easily. On the contrary, some modifications faced strong opposition or conflicted with long standing traditions, and one might find reform initiatives which have not been successful. Nevertheless, the interim result of this survey clearly shows that German administrative law is generally open for modification. Some of the aforementioned examples include reforms motivated by European law, but only a few were exclusively or dominantly driven by European law.



3 Potential Conflicts in the Process of Europeanisation of German Administrative Law



3.1 Specific Conflicts

Other modifications of German administrative law are more or less completely a result of interventions by EU law. One major example is the re-orientation of the concept of legitimate expectations in the field of state aids.69 66

M. Ruffert, ‘Von der Europäisierung des Verwaltungsrechts zum Europäischen Verwaltungsverbund’, Die Öffentliche Verwaltung 2007, 761 et seq.; E. Schmidt-Aßmann and B. Schöndorf-Haubold (eds) Der Europäische Verwaltungsverbund, Tübingen 2005; J.-P. Schneider and Francisco Velasco Caballero (eds) Strukturen des Europäischen Verwaltungsverbunds, Berlin 2009; J.-P. Schneider (n 38) 313 et seq.

67

J.-P. Schneider (n 46), § 28 para 97a.

68

For a systematic account of (German) traditions in administrative law and their modifications see E. Schmidt-Aßmann in this volume.

69

W. Kahl, ‘Entwicklung des Rechts der Europäischen Union und der Rechtsprechung des EuGH’, in H. Hill, K.-P. Sommermann, U. Stelkens and J. Ziekow (eds) 35 Verwaltungsverfahrensgesetz – Bilanz und Perspektiven, Berlin 2011, 111, 121 et seq.

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According to the Alcan jurisprudence, an administrative act awarding national state aid in conflict with Art. 87 TFEU must generally be revoked.70 Notwithstanding the harsh criticism by some German commentators of this jurisprudence71 the German Federal Administrative Court followed the ECJ. In order to do so, the German court reinterpreted the relevant provision in § 48 APA quite extensively.72 This reaction of the German legal practice may be taken as another example of the flexibility of German administrative law and its ability to align itself to European law developments. Today most commentators accept this modification or even think that the ECJ intervention helped German administrative law to establish a more differentiated concept of legitimate expectations.73 From this perspective the APA solution of 1976 was too focused on cases from the 1950s with old ladies in precarious social circumstances thereby neglecting cases with legally well informed big companies. However these commentators have also noted with some good reasons that this reinterpretation of § 48 APA finds only a very limited basis in its wording and in some instances even sets aside clear legal requirements including specified time limits for a revocation. Therefore they see a need for an explicit legislative reformulation of § 48 APA.74 Similar arguments can be made concerning other potential or actual conflicts between German concepts or traditions and EU law, such as75: • the subjective concept of judicial review, • the substantive focus of judicial review, • the concept of hierarchical supervision of administrative authorities, • the narrow concept of discretion, • reluctance concerning administrative transparency, • the public-private law divide. Despite this, I think that most of these concrete conflicts between the two legal orders ought to be manageable. This is also true for the tension between the more procedural approach of EU law and the traditionally substantive focus of judicial review in Germany. For some commentators this is the most problematic conflict.76 Certainly this tension cannot be neglected especially as both approaches cannot simply be combined without over-judicialising public administration and thereby impair70 71

ECJ C-24/95, reports 1997, I-1607.

R. Scholz, ‘Zum Verhältnis von europäischem Gemeinschaftsrecht und nationalem Verwaltungsverfahrensrecht’, Die Öffentliche Verwaltung 1998, 261 et seq.

72 73

Bundesverwaltungsgericht, Entscheidungssammlung (BVerwGE) vol. 106, 328 et seq.

O. Lepsius, ‘Hat die Europäisierung des Verwaltungsrechts Methode?’, in P. Axer et. al (eds) Das Europäische Verwaltungsrecht in der Konsolidierungsphase, Berlin 2010, 181, 185-186.

74 75

W. Kahl (n 69) 122.

W. Kahl (n 69) 113 et seq.; O. Lepsius (n 73) 184 et seq.

76

W. Kahl, ‘Die Europäisierung des Verwaltungsrechts als Herausforderung an Systembildung und Kodifikationsidee’, in P. Axer (n 73) 53-54.

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ing its effectiveness and efficiency. Nevertheless, as shown above German courts have already realized that modern administrative law entails more and more fields of law in which substantive programming by the legislator is significantly reduced in comparison with the traditional norms enacted in the 1950s and 1960s. As a result the courts today accept new forms of administrative discretion for instance in the field of regulatory law.77 As this development is only partly driven by EU legislation I am optimistic that German administrative law will adjust to a more proceduralised mode. On the other hand European law should further develop some forms of substantive control, for instance under the proportionality principle. As German colleagues correctly observed, German scholars and practitioners have changed their attitude towards the process of Europeanisation of administrative law remarkably.78 In the first phase during the 1980s the dominant view was scepticism driven by the motivation to keep the German administrative law, which had only recently been consolidated during the 1970s, as stable as possible. However during the 1990s the attitude changed towards the realisation that Europeanisation also provides a chance to modernise German administrative law and to adjust it to the challenges of globalisation.79 Nevertheless, this optimistic account is not the end of the story.



3.2 A General Conflict Caused by the Fragmented Nature of EU Law

The most problematic feature of recent EU law is its predominantly sector-specific approach and – from a systematic point of view – its rather eclectic nature. The status quo is unsatisfactory because EU administrative law is highly fragmented and does not reflect adequately the growing number of composite procedures. Both aspects cause legal uncertainty, a lack of transparency, opaqueness and incoherence in EU administrative law.80 EU directives and regulations are shaped under the specifics of the EU polity with a Commission divided into diverse directorates-general, with diverse committees of the European Parliament and with sector-specific compositions of the EU Council. EU Case law certainly has value concerning flexibility and adaptation to the specifics of a case, but these advantages are outweighed by its particularity and the need for expert advice to discover its exact ratio. This results in gaps and legal uncertainty. Such drawbacks of case law motivated the EU to enact sectoral codifications of ECJ jurisprudence for example in the field 77

See supra B. IV.4.

78

O. Lepsius (n 73) 183 et seq.

79

O. Lepsius (n 73) 190 et seq.

80

J. Ziller, ‘Is a law of administrative procedure for the Union institutions necessary? Introductory remarks and prospects.’ Note for the European Parliament´s working Group on EU Administrative Law (March 2011); J.-P. Schneider, Regulation (n 38) 319 et seq.

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of state aids.81 Today the growing number of sectoral codifications causes new problems of incoherence. These characteristics of EU law result in a de-codification and fragmentation of national administrative law by incoherent interventions.82 As German administrative law still represents a rather systematically conceptualised legal order such a de-codification impulse certainly generates opposition even if Europeanisation is only one of many factors of a de-codification process. The reaction to this analysis can and should be twofold: Some colleagues advocate a systematic Europeanisation of the national level, preferably in the German APA.83 This is certainly a very useful and necessary approach especially with regard to a uniform national legal framework for composite procedures within the EU administrative union, but I think that such a national reaction alone is insufficient. National systems may be able to adjust themselves to challenges from the EU level, but they can do so in a systematic and rational manner only if those interventions also follow a sufficiently systematic approach. What we need is a statement and restatement of best practices in EU administrative law as a model for more systematic and rational legislation at EU level. The Research Network on EU Administrative Law (ReNEUAL) has started to develop such model rules and its members hope to present a first preliminary version in 2014. They agreed to organise their model rules according to specific forms of administrative action i.e. rulemaking, unilateral single case decision making and contracting. In addition to that, they also explore the horizontal phenomenon of information management between EU administrative bodies like the Commission and EU agencies as well as in composite procedures with transnational or trans-level interactions between national and EU administrative bodies.84 If administrative law scholars combine these two strategies productively I am optimistic that they will be able to develop a functioning common legal framework in which national legal orders, for instance, that of Germany, play an important role, not as an obstacle but as a valuable treasure trove of experience.

81

Regulation 659/1999/EC.

82 83

Kahl (n 76) 73 et seq.

Kahl (n 76) 82 et seq.

84

For more information about the ReNEUAL project see www.reneual.eu.

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chapter 5

Cultural Traditions and Policy Preferences in Italian Administrative Law Roberto Caranta

chapter 5



cultural traditions and policy preferences in italian administrative law

1 Introduction

Generally speaking, Italy has rather been at the receiving end of legal transplants, and this also holds true with reference to administrative law. Even before the country was unified in the second half of the 19th century, the Kingdom of Sardinia heavily borrowed French institutions such as – to use the Italian names, but the French original would not be lost on anyone – prefetti, intendenti di finanza, provveditori agli studi, and of course, the Consiglio di Stato. It is not coincidence that that Kingdom turned itself into the engine of unification.1 With unification, borrowing continued. From 1865 a then recent Belgian model of ordinary or general (civil and criminal) courts were given the task of protecting citizens’ rights from encroachment by the administrative authorities. When in 1889 the Consiglio di Stato was given back a role in deciding upon administrative litigation, one of the grounds (eccesso di potere) was read along the lines of the French détournement de pouvoir. Uncertainty as to whether the ordinary or the administrative courts were competent was soon addressed by distinguishing atti d’imperio from atti di gestione. It was not uncommon even for very modest case notes to refer to the French administrative law literature. At the end of the 19th century, Italian administrative law came under the spell of German scholarship, which lasted well into the first half of the 20th century, so much so that the leading text on administrative proceedings published in 1940 was heavily influenced by classic German administrative law scholars.2 When in the 1990s a wave of reforms swept through Italian administrative law, foreign models played a mayor role: besides the usual German (and Austrian) forerunners influencing rules on administrative proceedings, a Nordic influence could be felt concerning a right of access to documents and ombudsmen, while New Public Management, even if rarely acknowledged, played a relevant role in bringing about rules on avoiding delays in administrative procedures, on output control, and the calling for coordination between multiple public decision makers. What is now European Union (EU) law has influenced the general principles of administrative law – so much so that Article 1 of l. 7 August 1990, n. 241, now refers to the principles of Community law as general principles of Italian domes-

*

T he completion of this work was helped by a PRIN 2008 grant ‘Diritto pubblico e diritto privatonel l’organizzazione e nel l’azione amministrativa’.

1

For some hints A. Sandulli and G. Vesperini ‘L’organizzazione dello Stato unitario’, in Riv Trim Dir Pubbl, 2011, 47.

2

AM. Sandulli, Il procedimento amministrativo (Milano, Giuffré, 1940).

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tic administrative law 3 – and entire sectors of administrative legislation, such as public contracts and environmental law. 4 Finally, United States (US) managerial techniques are of late making new inroads, especially concerning performance evaluation. This does not mean that Italian administrative law never developed original ideas or institutions even if it is difficult to speak of an ‘original character’. As is often the case with legal transplants, Italian law more often than not changed, adapted, perverted, or suffocated foreign ideas or institutions, in the end leading to a specific and partly original system. It is however to be said that not all the relevant aspects of the present arrangement of Italian administrative law deserve to be considered ‘traditions’ in the sense that they do correspond to deeply rooted values or ideas. Quite often, Italian administrative law is the way it is just because of policy preferences – if not the naked preferences – of the members (or part of the members) of some institution, the Consiglio di Stato foremost among them.5 These preferences can be challenged within the institution itself; or they may be challenged from outside, by some other institution, such as the Corte di cassazione, having in Italy the last word as to the competency divide between ordinary or general (civil and criminal) courts and administrative courts; finally, they may be challenged by scholars, or by some amongst them, and in Italian administrative law academia does not consider itself subordinate to the Consiglio di Stato.6 If we follow Rodolfo Sacco’s theory of formants, legal orders cannot be taken as a whole, and different actors can provide different and possibly diverging rules.7 3

See G. della Cananea and A. Sandulli (eds), ‘The Italian Administrative Procedure Act’, in Italian Journal of Public Law – Special Issue, 2010.

4

The different aspect and sectors are analyses in a work which has no parallel in other jurisdictions: M.P. Chiti and G. Greco (eds) Trattato di diritto amministrativo europeo, (2nd Milano, Giuffré, 2007).

5

One instance we will not further consider is provided by the duty to allow applications for interim relief before the lodging of the annulment action as mandated in public procurement cases by Case C-214/00; the case was considered to be very relevant and reported in Giorn dir amm, 2003, 898. Note M.P. Chiti, ‘La tutela cautelare ante causam nel processo amministrativo: uno sviluppo davvero ineluttabile?’; in Riv it dir pubbl comunitario, 2003, 1267, E. Barbieri, ‘Diritto comunitario, processo amministrativo e tutela «ante causam»; in Urbanistica e appalti (2003) 885, R. Caranta, ‘La tutela cautelare ante causam contro gli atti adottati dalle amministrazioni aggiudicatrici’, in Dir proc amm, 2004, 266, L. Stevenato, ‘La Corte di giustizia ancora come il Benvenuto Cellini dei diritti processuali nazionali: tutela cautelare e processo amministrativo spagnolo (o europeo?)’; in Urbanistica e appalti, 1998, 1334, the possibility was originally resisted by a number of decisions of the Consiglio di Stato, including Cons. St., Sez. V, 28 April 1998, n. 781,, but finally it has now become part of the legislation; in retrospect, it was much ado about nothing.

6

On Italian scholars see the detailed analysis by A. Sandulli, ‘Administrative Law Scholarship in Italy (1800-2010)’, in (2010) Riv trim dir Pubbl, 1055.

7

See generally R. Sacco ‘Legal Formants: A Dynamic Approach to Comparative Law’, 39 (2009) AmJCompL 1.

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Traditions can only be the product of formats converging on values and ideas. Preferences instead may be held by some and only some of the relevant actors. It is manifest that preferences oppose – or should from a legal and cultural point of view oppose – less resistance to change than traditions properly. The relevance of and interplay between traditions and preferences are well illustrated through the analysis of the judicial review of administrative action. Before moving on, let us just remark that in Italy there is no tradition of civic republicanism shared by a large swathe of the population as is the case in France.8 The cultural traditions or preferences we will be discussing here are confined to the specialists. We talk about legal culture, the mentalité of the members of the legal professions.

2 Diritti Soggettivi and Interessi Legittimi The interesse legittimo is possibly the most characteristic endemism in Italian administrative law. According to a widely accepted definition, an interesse legittimo is an interest in the legality of administrative decision making proceedings whose holder happens to have some specific links to a given administrative proceeding.9 Individuals and undertakings are normally (an exception will be discussed below) held not to have diritti soggettivi (subjective rights) but only interessi legittimi when they are asking for a permission or a licence or a grant or other utility or benefit (Leistungsverwaltung), including employment with the State or other public law entity and the award of procurement or concession contracts. The same is true with individuals and undertakings resisting such a demand. On the other hand, Eingriffsverwaltung is not necessarily faced with subjective rights. Property and other economic rights instead are treated as interessi legittimi when the State or other public law entities are given the power to take lands or other property or rights; general courts are competent only with reference to the compensation to be paid, not with the legality of the expropriation decision. The general doctrine is that no individual or undertaking can claim a (subjective) right when the State or any other public – and private, if vested with public power – law entities are given discretionary powers (unless it is a fundamental right). The attempt by some scholars to build an Italian theory of subjective öffentliche Rechte was bound to fail. Textual arguments – r.d. 2 June 1889, n. 6166 and r.d. 26 June 1924, n. 1054, the basic pieces of legislation on administrative courts (the latter having been in force until 2012) both referring to interests – ran against the idea that citizens could claim rights when faced with the decision-making power of the public administration (and again very much so when discretionary powers were at stake). However, it was not just a textual argument 8

See the contribution of Pascale Gonod to this collection.

9

See generally F.G. Scoca, Contributo sulla figura dell’interesse legittimo (Giuffré, 1990).

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militating against a general recognition of subjective rights. The idea of subjective rights was seen – and to a certain extent is still seen by many – as implying a power to decide. In administrative matters, the power to decide is normally vested with the administration. This means that citizens and undertakings are at the receiving end of the decision making process.10 The doctrine of interessi legittimi was designed mainly having in mind the division of competence between general (civil and criminal) courts on the one side and administrative courts on the other. In theory, 1865-1889 meant that, unlike France, Italy was in principle ready to give the general courts a wide jurisdiction over measures taken by the administration. Italy abandoned the French contentieux objective approach already at the end of the 19th century, embracing an idea of contentieux subjective. The ‘subjectivisation’ of the administrative jurisdiction was later confirmed by Article 24(1) of the Constitution.11 However, subjective rights were only one part of the legal entitlements. Interessi legittimi soon became the main corollary of administrative powers. In the end, very seldom can a subjective right be claimed against the administration; in practice, as far as the division of competence between the general and administrative court is concerned, Italy is not so far from the French system it appeared to have abandoned in 1865. Generally speaking, according to a rule now embodied in Article 103 of the Constitution, ordinary courts have jurisdiction for the protection of diritti soggettivi while administrative courts have jurisdiction in cases involving interessi legittimi.12 However, the same Article 103 of the Constitution empowers the Parliament to give administrative courts giurisdizione esclusiva (i.e. jurisdiction on cases involving both diritti soggettivi, including fundamental rights, and interessi legittimi) in relation to specific subject matters.13 10

I discussed the general attitude towards the State and the citizens at that time in R. Caranta, ‘The Fall from Fundamentalism in Italian Administrative Law’ in M. Ruffert (ed) The Public-Private Law Divide: Potential for Transformation?, (BIICL, 2009) 99.

11

‘Anyone may bring actions before a court of law in order to protect his/her rights and legitimate interests’ (my translation; the one from the website of the Italian Senate http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf is misleading, since it refers to ‘rights under civil and administrative law’).

12

‘The Council of State and the other administraitve courts are competent for the protection of legitimate interests; in specific subject matters listed by the law, they are also competent for the protection of subjective rights’ (my translation; the one on the Italian Senate website http://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf is less clear: ‘The Council of State and the other bodies of judicial administration have jurisdiction over the protection of legitimate rights before the public administration and, in particular matters laid out by law, also of subjective rights’).

13

Art. 133 D.lgs. 2 July 2010 n. 104 – the Code of Administrative Judicial Procedure – provides a quite long list of matters falling under the giurisdizione esclusiva of administrative courts including urban development and the environment; see M. Protto – M. Bellavista, ‘La giurisdizione in generale’ in R. Caranta (ed.), Il nuovo processo amministrativo (Zanichelli, 2011) 168 ff.

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As such, the doctrine of interessi legittimi is much linked to the peculiar Italian jurisdictional arrangement and is not something for export, particularly considering that the arrangement does not work easily and has its fair share of critics. It would however be difficult to change this arrangement without changing the Constitution, so much so that in past decades some provisions trying to transform administrative courts into general courts for disputes with the administration were struck down by the Constitutional court for breach of Article 103 of the Constitution.14 The doctrine of interessi legittimi however had, and to some extent still has, other implications. Another important role of this doctrine is to define standing before administrative courts. Reasoning in terms of interests rather than in terms of rights has allowed wide access to courts, comparable with the contentieux objective model, but at the same time providing an aura (even if limited, as will be seen) of personal entitlement to standing. This has proven especially useful given the polycentric nature of many administrative cases. Suffice it to think of an award procedure for a public procurement or concession contract; it is difficult to think of all potential bidders or candidates as holding a right to be awarded the contract. It is much easier to see them as holding a legal – as opposed to a factual – interest in that the contracting authority abides by all applicable rules when choosing its contractual partner.15 As a consequence of the application of the doctrine of interessi legittimi Italian case law, unlike the German, has quickly overcome all obstacles to compliance with EU principles and thus gives standing both to competitors and other concerned parties, including public or general interest groups in antitrust proceedings, and to competitors in public procurement cases.16 14

Corte cost., 6 July 2004, n. 204, in Resp civ prev (2004) 1018, Note A. Angeletti, ‘A proposito della sentenza della Corte costituzionale sulla giurisdizione esclusiva’, in Giust. civ., 2004, I, 2207, notes P. Sandulli, L’analisi ‘critica’ della Corte costituzionale sulla giurisdizione esclusiva, and C. Delle Donne, ‘Passato e futuro della giurisdizione esclusiva del giudice amministrativo nella sentenza della Consulta n. 204 del 2004: il ritorno al ‘nodo gordiano’ diritti-interessi’, in Dir proc amm, 2004, 799; note V. Cerulli Irelli, ‘Giurisdizione esclusiva e azione risarcitoria nella sentenza della Corte costituzionale n. 204 del 6 July 2004 (osservazioni a primissima lettura)’, and R. Villata, ‘Leggendo la sentenza n. 204 della Corte costituzionale; Corte cost., 11 May 2006, n. 191’, in Foro it., 2006, I, 1625, notes of A. Travi, ‘Principi costituzionali sulla giurisdizione esclusiva ed occupazioni senza titolo dell’amministrazione’, and G. De Marzo, ‘Occupazioni illegittime e giurisdizione: le incertezze della Consulta’, and Corte cost., 27 April 2007, n. 140, in Foro it., 2008, I, 435, note G. Verde, ‘E’ ancora in vita l’art. 103, 1° comma, Cost.?’, in Giust. civ., 2007, I, 1815, note G. Finocchiaro, ‘Brevi osservazioni circa l’applicabilità dell’art. 5 c.p.c. alla domanda cautelare ante causam’.

15

As to the situation in Italy see M.E. Comba, ‘Enforcement of EU Procurement Rules: The Italian System of Remedies’, in S. Treumer and F. Lichère (eds) Enforcement of the EU Public Procurement Rules (DJØF, 2011) 235.

16

For a comparative assessment please see R. Caranta, ‘Many Different Paths, but Are They All Leading to Effectiveness’, in S. Treumer and F. Lichère (n 16) 53.

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The same could easily have been the case with public interest litigation and especially so with reference to environmental matters were it not for a wrong decision by the Corte di cassazione (but this is another story and will be told another time).17 The fact that interesse legittimo was already perceived as a legal entitlement concerning judicial review proceedings has helped the introduction and operation of generalised participation ‘rights’ by l. 7 August 1990, n. 241.18 At times, however, the doctrine of interesse legittimo has been more a hindrance than a help. This has been the case with liability actions against the State and other public law bodies. The major impasse here was not so much the doctrine itself; the impasse was rather its purpose. The law gives administrative courts the jurisdiction on claims grounded on interesse legittimo. However, until well into the ’90s, administrative courts did not have the power to award damages, their jurisdiction being limited to the annulment of illegal measures. This approach was considered to be unsatisfactory by many and was inconsistent with (then) EEC procurement law, which provided for a remedy in damages in situations which were characterised as interessi legittimi in Italy.19 A string of reforms ending with l. 21 July 2000, n. 205, finally gave administrative courts the power to award damages. What is now EU law was therefore instrumental in bringing about a change which was resisted by the old school in academia and very much more so by a large section of the members of the Consiglio di Stato.20 If this is the most relevant part of the story, it is to be added that some of the theories around interesse legittimo claimed – and still claim – that its infringement is in principle to be remedied through the nullification of the illegal decision.21 These theories, again having their strongholds in the Consiglio di Stato, have their roots in the early days of the doctrine of interesse legittimo, when the model of the contenieux objective was still strong and the interesse legittimo was still very much a simple intérêt à apprécier par l’administration rather than a legal entitlement of citizens and undertakings. In that context, judicial review was considered to have been primarily set up to satisfy the general interest; individuals were mainly seen as an instrument to start the procedure rather 17

Cass., Sez. Un., 8 May 1978, n. 2207, in Foro it., 1978, I, 1090, which overruled Cons. St., Sez. V, 9 March 1973, n. 253, in Foro it., 1974, III, 33, note L. Zanutting, ‘“Italia Nostra” di fronte al Consiglio di Stato’.

18

See R. Caranta, ‘Participation to Administrative Procedures: Achievements and Problems’, in G. Della Cananea and A. Sandulli (n 3) 309.

19

See M. Protto L’effettività della tutela giurisdizionale nelle procedure di aggiudicazione di pubbliciappalti (Giuffré, 1997).

20

Please refer to R. Caranta, ‘Responsabilità per violazione di interessilegittimi’, in U. Carnevali (ed.), ‘Dei fattiilleciti’, in E. Gabrielli (dir.), Commentario del Codicecivile (Torino, UTET, 2011) 364; see also A. Travi, ‘Pregiudizialità amministrativa e confrontofra le giurisdizioni’, in 2008 Foro it., III, 4.

21

For reasoned defense of this position see R. Chieppa, ‘Viaggio di andata e ritornodallefattispecie di responsabilità della publica amministrazione alla natura della responsabilità per i danni arrecati nell’esercizio dell’attività amministrativa’, in (2003) Dir proc amm, 683.

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than its primary beneficiaries. This traditionalist approach – again it is difficult to talk of cultural tradition with reference to positions which are shared by some legal actors only –still has some effects even if, under the pressure of EU law, administrative courts may now award damages. While the annulment of the illegal measure is no longer a condition precedent to a damages claim, the deadline for bringing independent damages claims is very short (120 days) being the same deadline for bringing a special administrative appeal against the administrative decision. By contrast, the normal deadline applicable to damages actions in civil law is five years; and somewhat contradictorily, this five year term applies to damages actions brought after the annulment of the same decision. Moreover, under Article 30 D.lgs. 2 July 2010 n. 104 (the Code of administrative judicial procedure), asking for the annulment of the administrative decision having caused the harm, or whose execution caused harm, is considered a way to mitigate the damages, and failure to ask for it can lead to compensation being reduced or denied altogether.22 What has happened here is that some members of the Consiglio di Stato, who actually drafted the Code of administrative judicial procedure, went out of their way to preserve – or to limit changes – to their preferred annulmentcentred approach to the judicial review of administrative action. The reasons for this preference, often not articulated in writing, are not only concerned with resistance to (any) change which is widespread, if not endemic in many institutions. Dealing with annulment actions takes less time than dealing with damages claims, since no issue of fault or intent, causation and damages arises. Giving preference to annulment actions is seen as a sound docket management approach. Moreover many feel that the Italian public finances are already stretched enough without the need of a floodgate of damages awards further denting the budget.23 In the end, some of the ideas which are grouped under the idea of interesse legittimo – such as a wide recognition of participation and access to justice rights – could very well provide interesting components for the development of European administrative rights. Indeed, it could be said that these components somewhat anticipated important international documents such as the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. At the same time, some specific preferences – such as the subordinated place given to damages actions – could be less palatable. However, from a legal-cultural point of view, the interesse legittimo has never been an insurmountable obstacle to changes, and especially so to 22

See R. Caranta, ‘Le controversierisarcitorie’ in R. Caranta (ed), Il nuovo processo amministrativo (Zanichelli, 2011) 629.

23

For different stances on the traditional position see R. Villata, ‘Corte di cassazione, Consiglio di Stato e c.d. pregiudiziale amministrativa’, F. Cintioli, ‘Il processo amministrativ orisarcitorio senza la pregiudizialità. Ovverossia ‘della specialità perduta’?’, F. Luciani, ‘Funzioneamministrativa, situazionisoggettive e tecnichegiurisdizionali di tutela’, all in (2009) Dir proc amm, 897, 933 and 978 respectively.

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changes brought about by EU law. Quite the contrary, the EU has contributed to the way the interesse legittimo is understood and operates as a legal category.



3 Discretion

As already recalled, at the end of the 19th century, Italian administrative law, originally influenced by French law, came under the spell of German scholarship; in the scholarly milieu this influence has led to a penchant for conceptual thinking. The late 30s – early 40s were the defining moment for scholarly discussions on discretion. Two towering scholars in their early years squared against each other. On one side was Costantino Mortati, later to write the leading text on Italian constitutional law. Building upon the works of a large section of scholars, he adopted a somewhat wide notion of discretion.24 In his mind, discretion was the room for manoeuvre the rule maker had left to the benefit of the decision maker by drafting open ended rules, that is rules referring to undetermined legal concepts; instances can be found in rules empowering public authorities to act to uphold the public good, law and order, health of the general population or livestock, and similar.25 Mortati’s works – as well as those of his predecessors – were clearly influenced by contemporary German scholarly writings on unbestimmte Rechtsbegriffe, which were being translated in Italian as concetti giuridici indeterminati.26 On the other side was Massimo Severo Giannini, the towering figure in administrative law for the best part of the second half of the 20th century. He claimed discretion had to do with the choice between possibly conflicting public and private interests. Those interests have to be balanced against each other to choose the solution better preserving to the general interest. Discretion has therefore to do with policy choices.27 Whether to raise taxes to pay for public works or whether to spend any given public money in building either schools or hospitals are discretionary choices. Choices made according to different rules, such as technical or scientific rules (like whether the proposed design for a new building is consistent with urban planning instruments) are not discretionary choices: here lies the main operative distinction between the two theories.28 Giannini had the upper theoretical hand and his theory soon commanded following from most of the scholarly world. Differences in theory play a role in 24 25

A seminal work was C. Mortati, ‘Potere discrezionale’, in Nuovo Digesto Ital., vol. X (UTET, 1939), 76 ff.

Mortati’s works have been analysed by G. Azzariti, ‘Discrezionalità, merito e regole non giuridiche nel pensiero di Constantino Mortati’, in (1989) Pol. dir., 347 ff.

26

The following of the theory of unbestimmte Rechtsbegriffe had in Italy been traced by D. De Pretis, Valutazione amministrativa e discrezionalità tecnica (CEDAM, 1995).

27

The defining work was M.S. Giannini, Il potere discrezionale della pubblica amministrazione (Milano, Giuffré, 1939).

28

Giannini’s theory has been analysed by G.F. Scoca, ‘La discrezionalità nel pensiero di Giannini e nella dottrina successiva’, in (2000) Riv trim dir pubbl, 2000, 1045 ff.

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the way the respective role of courts and administrative authorities are fashioned. For instance, Mortati’s theory may easily uphold a very restrained review by courts; through the use of unbestimmte Rechtsbegriffe the Parliament may be seen as having delegated to the executive power the authority to make the choice between different possible administrative measures based on the facts specific to each situation.29 When instead discretion is narrowed down to policy decisions, courts can in principle review any facet of an administrative decision which is not policy laden; moreover, by bringing to the forefront the conflicting interests an administrative decision is to affect, this theory could possibly pave the way to a closer judicial look on how these have been balanced.30 Giannini’s theory has great analytical power and could easily improve legal thinking and practice at the EU level.31 It is however fair to say that this theory has never really impacted on the case law and the review of administrative decisions in Italy. What we have here is a sharp and critical divergence between academia and administrative courts. Again the reason has little to do with cultural traditions. Giannini’s theory lends itself to a quite articulated and possibly value driven judicial review of administrative action. Italian administrative courts have preferred to stick to fuzzier concepts. Factual and technical assessments were and are translated into the concept of discrezionalità tecnica. As a consequence, factual and technical assessments have been traditionally considered the same as policy choices and consequently their review has traditionally been quite limited.32 In the ‘20s of the past century this attitude was seconded by the Corte di cassazione. As already remarked, in principle the jurisdiction of administrative courts depends on interessi legittimi, while the ordinary courts have jurisdiction with reference to subjective rights. In principle again, if the administration is vested with discretionary powers, the citizens cannot claim subjective rights; interessi legittimi is the name given to their entitlement. This means that the wider is the notion of discretion the wider the jurisdiction of administrative courts. At the same time, however, Italian administrative courts are only expected to review the legality of administrative decisions (legittimità) but also to steer clear of their merits (merito), meaning they cannot substitute their views for those endorsed by the decision maker (no de novo review). A wide and generic concept 29

This position is still shared by some writers, notably by C. Marzuoli, Potere amministrativo e valutazioni tecniche (Giuffré, 1995); it must be said that the present state of German law shows this does not need to be the case.

30

See also F. Ledda, ‘Potere, tecnica, sindacato giudiziario sull’amministrazione pubblica’, in (1983) Dir proc amm, 371; V. Cerulli Irelli, ‘Note in tema di discrezionalità tecnica e sindacato di legittimità’, in (1984) Dir proc amm, 463; F. Salvia, ‘Considerazioni su tecnica e interessi’, in (2002) Dir pubbl, 603 ff.

31

See R. Caranta, ‘On Discretion’, in S. Prechal and B. van Roermund (eds) The Coherence of EU Law. The Search for Unity in Divergent Concepts (Oxford University Press) 2008, 185.

32

See also L. Benvenuti, La discrezionalità amministrativa (CEDAM, 1986).

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of discretion, including discrezionalità tecnica, correspondingly extends the realm of what is said to be the unreviewable merits of administrative decisions. When one considers it, this is a sort of boxer’s deadly one-two: discretion means that a) administrative courts have jurisdiction, but b) these courts can’t really review the substance of a widely read discretionary decision. Generally speaking, the review of discretion is in principle peripheral, tangent. Only fairly recently have the administrative courts started to review de novo simple factual assessment. More complex factual decisions, such as is the case for instance for many antitrust measures, are still reviewed in a very peripheral way.33

4 Eccesso di Potere and Legality Review Eccesso di potere is another one of those fuzzier concepts ‘underpinning’ judicial review in Italy. As already recalled, review by Italian administrative courts is limited to the legality of administrative decisions (legittimità) and does not go into their merits (merito). Since 1889, the grounds for legality review have been three, namely lack of competence, breach of legal rules, and eccesso di potere (so called legality review). Lack of competence and breach of legal rules both refer to cases of bound competence (competence liée). Eccesso di potere is therefore the ground relevant for the review of the discretionary facets of administrative measures. Eccesso di potere was initially read on the same lines as the French détournement de pouvoir, that is, as the perverse use of official powers to attain private ends or other ends not considered as legitimate under the applicable rules. Since it is however quite difficult to say to what end a given decision was taken, early on administrative courts started to define situations where détournement was to be presumed. One such situation had to do with the duty to give reasons. Even when no such duty was spelt in the applicable legislation, administrative courts quashed administrative decisions detrimental to some private parties if reasons were not given; the rationale was that if no reason was put forward to encroach on individual rights or interests, this could only be because no permissible reason existed. Administrative courts have gone a long way down this road, finding eccesso di potere when reasons, even if given, are considered insufficient to uphold the decision taken by the public authority; when different standards of decisions have been applied to what on their face appear to be similar cases; or when facts have been misunderstood by the decision maker. 33

See R. Caranta and B. Marchetti, ‘Judicial Review of Regulatory Decisions in Italy; Changing the Formula and Keeping the Substance?’, in O. Essens, A. Gerbrandy and S. Lavrijssen (eds.), National Courts and the Standard of Review in Competition Law and Economic Regulation (Europa Law Publishing, 2009), 145.

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Other instances are more problematic, most notable among them ingiustizia manifesta, that is, a manifestly unjust decision. The fear here is that courts could be seen as stepping into the shoes of the decision maker. The same applies to reasonableness, often coupled with proportionality. It is far easier for administrative courts to strike down substantially wrong decisions maintaining that the reasons given for them are either insufficient or inconsistent, the former adjective easily lending itself to subjective appreciation.34 The same considerations apply with discrezionalità tecnica, with the additional problem that, dealing with technical or scientific matters most judges do not know anything about, courts will tend to defer to the conclusions reached by the administration. The present situation can be illustrated with reference to a recent judgment by the Consiglio di giustizia amministrativa per la Regione Sicialia, a special section of the Consiglio di Statoin Sicily.35 The case concerned the decision by the local branch of the Cultural Heritage Ministry to consider the underground remains of an ancient aqueduct as of relevant historic and archaeological interest, with the consequence of limiting building activities in the area. The decision was challenged by some developers and the administrative court of first instance quashed it holding that the reasons given were insufficient. The court considered that only a section of the ancient structure had survived and that anyway it could not be opened to the public. The judgment was reversed on the appeal of the administration. The Consiglio, consistently with the dominant case law, remarked that the question as to whether a given artefact presents a relevant historic and archaeological interest is open to different answers. The law is using here a concetto giuridico indeterminato and its actual meaning in any actual case is to be determined through the application of technical and specialist knowledge. In this framework, administrative courts can only annul those decisions based on insufficient factual investigations, insufficient reasons, or clearly falling outside the area of the decisions possible according to the scientific knowledge applicable to the facts. What administrative courts cannot do is to decide in the place of the competent administration, deciding on the merits of the case. For good measure, however, the court added that partial survival of the artefact and its not being accessible by the public are in no way exclusive of the historical and archaeological interest. Moreover, according to the Consiglio, no weighting of conflicting private and general interests is needed on the part of the decision maker, not even to the limited extent of ascertaining that only those limitations to the interests of the citizen which are strictly necessary for the pursuit of the general interest have been placed on the citizen him/herself. Indeed, according to the court, protecting cultural heritage is a constitutional mandate necessarily taking priority over any other interest. 34

The case law is analysed by C. Marzuoli, ‘Discrezionalità amministrativa e sindacato giudiziario: profili generali’, in V. Parisio (ed) Potere discrezionale e controllo giudiziario (Giuffre, 1998) 91 ff.

35

Cons. giust. amm. reg. Sicilia, 10 June 2011, n. 418, Foro amm. CdS, 2011, A. Fontana, ‘Il sindacato sulla discrezionalità tecnica alla luce della recente elaborazione giurisprudenziale’.

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Logically speaking one could well retort that limiting detriment to the private party does not call into doubt the primacy of the general interest. The point here is different. It is that the administrative courts generally do not want to disturb the balance of interests as settled by the administration. Proportionality sits uncomfortably in this environment. As already recalled, Article 1 of l. 7 August 1990, n. 241, as amended in 2005, stipulates that the general principles of (then) Community law are among those always binding on public administrations, independently from the question of whether a given matter falls within or without the province of EU law. This provision was introduced as a manifesto heralding the convergence between Italian and European law. The Italian Parliament obviously did not consider any national tradition which could be upset by unconditionally opening the doors to EU principles. Proportionality and the protection of legitimate expectations are among the value-added the reform has contributed when compared with pre-existing and well established principles – such as legality and non-discrimination.36 Leaving the protection of legitimate expectations aside, accommodating proportionality review in Italian administrative law raises a number of difficult questions. True, proportionality may mean many things.37 Under a basic understanding of it, fines and other sanctions which are not commensurate will be considered illegal. This is nothing new, and even quite old cases decided by the Italian administrative courts could be easily read along these lines.38 In its German reading, present in EU law with reference to the review of measures taken by the Member States, proportionality review is much more demanding.39 In the essence, courts are expected to carefully examine the decision taken by the administration, including reviewing the balance among the conflicting public and private interests struck by the decision maker. This is something akin to what in the US is called de novo review. 40 Incidentally one could remark that such a review would presuppose the acceptance of Giannini’s theory of discretion without necessarily being an implication of it. However, de novo review would rather mean, coming back to the 36

See generally D. De Pretis, ‘I principi del diritto amministrativo europeo’, in M. Renna – F. Saitta, Studi sui principi del diritto amministrativo (Giuffré, 2012) 41.

37

So much so that the two leading books on the subject have in the past reached quite diverging conclusions as to the extent this principle can be said to be accepted in Italian law: D.U Galetta, Principio di proporzionalità e sindacato giurisdizionale nel diritto amministrativo (Milano, Giuffrè, 1998), and A. Sandulli, La proporzionalità dell’azione amministrativa (Padova, Cedam, 1998).

38

Proportionality is routinely used in cases concerning fines, where administrative courts enjoy full jurisdiction, and in other specific sectors: see A. Sandulli, ‘Eccesso di potere e controllo di proporzionalità: Profili comparati’, in (1995) Riv trim dir pubbl , 329.

39

See also J. Schwarze, ‘The principle of proportionality and the principle of impartiality in European administrative law’, in (2003) Riv trim dir pubbl, 53.

40

See S. Rodriquez, ‘Traditional Model vs. Dialogue Model in the UD Legal System’, in R. Caranta and A. Gerbrandy (eds), Tradition and Change in European Administrative Law (Europa Law Publishing, 2011) 267.

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Italian concepts, going into the merits of the decisions, something that administrative courts are not ready to do (and a number of scholars share their stance). 41 Reference to one case will suffice to prove the point. The case concerned a corporal with the Italian army who faced both criminal prosecution and disciplinary action for desertion and other crimes. The criminal court found the corporal guilty and gave him a 10 month jail term, which, as is usually the case with first time offenders, was suspended; additionally, the judgment was not recorded in the public register for criminal convictions. The military officer charged with investigating the disciplinary breach proposed a three month suspension from active duty. The commander of the unit however deferred the matter to the disciplinary commission which decided to deprive him of his rank and to discharge him from active duty with dishonour. The decision was unsuccessfully challenged in front of the first instance administrative court and the judgment was appealed to the Consiglio di Stato. The appellant claimed that the decision taken against him breached the proportionality principle, and more notably failed to consider that the right to have a job granted under Article 4 of the Italian Constitution should have out-weighted any other consideration. The Consiglio di Stato affirmed the first instance decision holding that it is not for the courts but for the administration to evaluate the gravity of the breaches and a decision can be reviewed only if manifestly disproportionate; more generally, all discretionary choices made in taking the disciplinary measure, including as to the gravity of the sanction inflicted, are the preserve of the administration and cannot be second guessed by the courts under the guise of the proportionality principle; therefore courts’ review does not extend to the merits of the decision taken, and only an abnormal decision would be quashed. 42 While there may be exceptions, 43 the administrative courts are obviously keen to keep judicial review limited and normally – or at least not openly – not to second guess discretionary decisions; their stance, as already noted, is shared by a number of scholars. This attitude can be considered a cultural one, finding its ultimate underpinnings in the idea of separation of powers. It also underlies a preference for a legality review of discretionary decisions which focuses mostly on the respect of formal and procedural requirements. 44 It should be stressed that the administrative courts are not cloaking their stance in the guise of cultural resistance to European influence. On the contrary, they try to underpin their position by referring to the case law of the Court of Justice which, especially when it comes to the review of measures taken by EU 41

See the intellectually articulated discussion in G. Falcon, ‘Il giudice amministrativo tra giurisdizione di legittimità e giurisdizione di spettanza’, in (2001) Dir proc amm, 287.

42 43

Cons. Stato, Sez. IV, 9 October 2010, n. 7383, in www.giustizia-amministrativa.it.

One case is T.A.R. Lombardia, Sez. III, 5 May 1998, n. 922, in Foro amm. 1999, 2452, note I. Zingales, ‘Disapplicazione da parte del giudice amministrativo di prescrizioni regolamentari dei bandi di gara contrastanti con normativa primaria e con il principio di proporzionalità’.

44

See R. Caranta and M. Protto, ‘Italy’, in Comparative Analysis of Administrative Law, European Public Law Series – Bibliothèque de droit public européen, (Esperia Publications, Bruylant, 2002) Vol XXIV, 203.

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institutions, is much more restrained even in matters pertaining to proportionality than when it is reviewing Member States’ decisions. 45 In the end, the approach to the judicial review of discretionary decisions favoured by Italian courts is still far less structured than the recours pour excès de pouvoir in France and proportionality has not been really developed as an incisive review tool. At the same time it is fair to say that the distinction between legality and merits is enshrined in the legislation even if the boundaries between the two are not. Moreover, unlike in France, explicit differentiation as to the depth of judicial review is problematic in Italy; Article 113 of the Constitution stipulates that judicial review cannot be limited as to the grounds of review. This means that changes in the doctrines underlying judicial review would in principle be of general application, and the less traumatic option to upgrade the intensity of judicial review with reference to one or more specific subject matters is not really open. Moreover, as already stressed, the doctrines about the bounds of judicial review are couched in open ended terminology. The administrative courts retain the power to strike down decisions they think are basically wrong, referring to insufficient reasons and so on.



5 Conclusions

Italian administrative law has always been quite permeable to outside influence. In time, the borrowings have coalesced with some original ideas, true endemism, like the interesse legittimo. Moreover, when certain institutions were adopted (and others were discarded) path dependence was to ensue as a common occurrence. This, along with preferences, explains the difficulties in fully accepting proportionality in its more intense judicial review configuration. Seldom however would the present state of Italian administrative law be taken as a tradition impervious to change. It has changed under outside influence and it will go on changing. No one would speak of a ‘genio italiano’ resisting foreign influences. This again does not mean that preferences don’t play any role. As has been shown, they do, and of course preferences may be the basis for resistance to change. But this is not much different from a common ‘better the devil you know’ approach. Finally, Italian administrative law could well contribute something useful to the current debate on European administrative law, such as the rigorous analysis of discretion we find in Giannini’s work.

45

Case C-126/91 Yves Rocher (1993) ECR I‑2361, Case C‑101/98, UDL (1999) ECR I-8841, and Case C‑361/98, Italy v Commission (2001) ECR I‑385, are referred to by Cons. Stato, Sez. IV, 9 October 2010, (n 43) n. 7383.

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Spanish Administrative Traditions in the Context of European Common Principles Andrés Boix-Palop

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spanish administrative traditions in the context of european common principle

1 Methodology: How do we Define a ‘National Tradition’ in Public Law?

It is not easy to define a national tradition precisely when we are dealing with Public or Administrative law. As explained in other papers that can be found in this book, a tradition should enjoy certain longevity in order to be affirmed and has to concern non-trivial matters (Le Sueur). We can identify national traditions when they are closely related to the very idea of the organisation of a model of Public Law in any particular country but this should not be confined to the particular ways it is done at a particular time (Gonod). Indeed, a tradition should be linked in some way to national identity, to the particular organisation and character of the country, at least if we want to identify it as something significant. Therefore, to discern the actual characters than can contribute to the construction of a theory of national traditions in Administrative law across Europe is a difficult task from a theoretical perspective. Nevertheless, the actual identification of the different national traditions could be quite straightforward. In fact, it could be argued, even if it would be difficult to explain on which grounds and facts such identification is carried out, that any jurist is able to recognise a national tradition when he or she confronts it. For instance, the examples provided in this book about Scandinavian law by Edelstam are extremely illuminating. An institution like the Ombudsman is something that is commonly associated with the particular way in which Scandinavian countries have organised their public affairs, and therefore can be analysed as the symbol (and also as the consequence) of a profound tradition of tackling administrative issues according to a participative pattern. Participation is rooted in the general mood of Scandinavian countries; ordinary citizens are concerned about it. It is also closely related to other traditions that almost anyone could identify as Scandinavian, for instance the importance of transparency and accountability in those legal systems. Putting together those disparate elements we can understand why the difficulty of defining national traditions in Administrative law can exist alongside the fact that, as explained, they are easily recognised once we face them. National traditions defined in that way, have a lot to do with history and in particular with the history of the society and the legal structures from which they were born. Sometimes a mere legal principle can grow to become a tradition when repetition and its consistency are in accordance with the historic evolution of a country. In other situations, on the other hand, the history of a country and its legal culture make the emergence of its own legal traditions difficult, if the construction of legal institutions and public administration has been carried out by a disparate myriad of foreign influences and with little participation of its own society.

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2 Spanish Law and Spanish Culture in the European Context 2.1 Spanish Law and Spanish Law in Europe

Had we to define the contribution of Spanish culture, and in particular, of the Spanish legal culture, to the common European culture in the last two centuries, we would contend, at least, that such contribution has been but a timid endowment to the European frame. The birth of the Modern State in Europe with the liberal revolutions took place in a context of social, political and economic crisis in Spain, whose heyday had already passed as far as the history of the ideas is concerned. This produced a weak construction of the Spanish national identity from a cultural point of view. Even the very idea of Spain as a nation had been discussed and it was not without pain that it was eventually established during the 19th century.1 Ortega y Gasset wrote about this question in one of his most important works, trying to explain why Spain had failed to achieve the degree of unity as a cultural entity that other nations in Europe had already completed throughout the previous century.2 This crisis of the Spanish culture only worsened with the Civil War (1936-1939) and the subsequent authoritarian government of Franco’s Regime (1939-1975). This period was an absolute disaster in cultural terms, as it left a country depleted of its best minds and was defined by the destruction of the timid attempts at reconstruction of the Spanish University and Spanish science made during the Republican years prior to the Civil War. In conclusion, we have to begin our analysis considering the weakness inherent to the construction of Spanish cultural identity and, as a consequence, the extraordinarily slight impact of Spanish culture in Europe in the last two centuries. We can see this effect in any particular field we observe, yet we will focus ourselves on the legal domain: the impact of Spanish jurists and Spanish legal dogma in Europe has not been particularly significant. Spanish legal culture has indeed had times of glory in the past. For instance, the impact of Spanish Scholasticism (16th century) represented by leading scholars as F. de Vitoria, D. de Soto, M de Azpilicueta, T. de Mercado, F. Suárez is well known. This tradition was closely related to the rule of the Catholic Church in many domains of Spanish life and was the result of the requisites of an Empire in need of a legal system capable of meeting the demands of broad integration (of subjects, of territories). The fulfilment and eventual disappearance of such requisites went hand in hand with the consequent fading away of the Spanish legal culture. The decline of the Spanish Empire brought about the end of a particular way of governing that despite its extensive life span left but scarce traces. The construction of the Spanish modern State, which was always marked by an antagonistic fight between liberals and traditionalists, was not 1

J. Álvarez Junco, Mater Dolorosa (Taurus, 2001).

2

J. Ortega y Gasset, España invertebrada (Revista de Occidente, 1921).

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deeply influenced by this legacy. The only exception to this was the presence of catholic traditionalism, which was (and still is) an important element to take into account in the construction of the modern Spanish State and its public administration. Modern Spanish Public law and its new administration were built using foreign models, as was the case in Italy (as explained by Caranta in this book).3 The Spanish 19th century began with a Constitution (Estatuto de Bayona, 1808) that was drafted by Napoleon following the model the French Empire used in many other cases. 4 In reaction, the Spanish conservatives combined the most liberal forces opposing the French construct and joined efforts to produce a classical and liberal Constitution in 1812.5 Throughout the 19th century the tension between liberals and conservatives fashioned both politics and the Spanish constitutional evolution. The context of depression, both political and economical, produced a poor constitutional reality however, that led to Public and Administrative law traditions that relied heavily on imported doctrines and institutions that were already in place in other countries of Europe. The French influence was especially important in the definition and construction of the Spanish administrative system,6both in its judicial review model(the same process of independence of the judicial system from the Administration, the different remedies and controls established…) and in the implementation of administrative institutions such as the organisation of the Ministerial bodies or the advisory organ (following the example of the French Conseild’État) There was also an important German influence, channelled by scholars as Posada Herrera, with early translations of the works of different German jurists such as Jellinek, introducing the German notion of Herrschaft. As a result, the Spanish administration that steadily emerged in the 19th century is profoundly French in shape with a German touch. Of course, there were also some internal influences, but they were not able to reshape a model that at its core was entirely comparable with its European counterparts. The clearest Spanish specificity in the moulding of the administrative frame was the power of the anti-liberal tradition as represented in Donoso Cortés, who was not able to impose his views, but clearly influenced all the process as well as the anti-liberal European trends that emerged in the next century.7 The modern Spanish administrative tradition was born seeking inspiration in other European countries and developed its own character only after a period of consolidation. 3

See, for instance, J.A. Santamaría Pastor, Fundamentos de Derecho Administrativo (Ceura 1988) and by the same author Sobre la génesis del Derecho administrativo español en el siglo xix (1812-1845) (Instituto García Oviedo, 1973).

4 5

I. Fernández Sarasola, La Constitución de Bayona (1808) (Iustel, 2007).

M. Artola and R. Flaquer Montequi, La Constitución de 1812 (Iustel, 2008).

6

F. Velasco Caballero, ‘The legitimacy of the Administration in Spain’, in M. Ruffert Legitimacy in European Administrative Law: Reform and Reconstruction (Europa Law Publishing, 2011) 85.

7

C. Schmitt, Donoso Cortés in gesamteuropäischer Interpretation (Köln) 1950.

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This trend was violently brought to a halt by the Civil War that followed the putsch against the constitutional republican government in 1936. The final victory of Franco’s regime in its confrontation against the Spanish legitimate government was followed by a period of legal autarchy, as it governed every single aspect of Spanish life at the time. The dictatorship was suspicious of not only any foreign influence but also of any liberal vision from inside the country. Franco’s regime only promoted anti-liberal views and made Spanish Public law even poorer in quality and diversity, with no real capacity to influence European trends. The weight of the Regime was made clear in each procedure and in any proceeding, regardless of its pettiness. The system was heavily bureaucratic and its authoritarian character was beyond doubt.8 Nevertheless, after two decades of isolation, the vital necessity of opening the Spanish economy to the international markets of goods, services and the financial markets forced the Government to change some rules in order to provide foreign investors with some kind of legal certainty. Since 1954 (with the Takings Act) different regulations were passed affecting the judicial review of administrative decisions on legal grounds (Administrative Justice Act of 1956) and organising a complete administrative procedure (Administrative Procedure Act of 1958).These were to become the foundations of a kind of formal Rechtstaat by which the Rule of Law began to be considered as something that the new Spanish regime should also respect: a sort of Western legal State, but a very peculiar one indeed, in which citizens (and foreign investors) were to expect guarantees of fairness and certainty when dealing with administrative bodies or when doing private business, but without the classical bunch of rights and liberties that any liberal regime is also committed to honour.9



2.2 Spain and the European Promise

The country, Spanish culture and the Spanish legal system were left in a very poor state after the death of General Franco in 1975. Years of isolation from Europe (absolute isolation in the years of the autarchy model was followed by isolation from 1958 onwards) had defined a country that was proud (at least in the official propaganda) of being ‘different’. The change of regime transformed this situation. Since 1975 the history of Spanish democracy has been that of a country that no longer wants to be different. From this point of view, Europe, the European Union (EU) and the European legal and administrative traditions seemed to be the promised land that Spain had to (and wanted to) reach. This European Promise was fulfilled with public liberties and democracy. There was no particular route to democracy in Spain. The country simply took the model of civil liberties that was already in place in different European 8

On the legitimicy based on the bureaucratic paradigm, see J. Ponce Solé, ‘The History of Legitimate Administration in Europe’, in Ruffert (n 6) 158-160.

9

F. Velasco Caballero (n 6) 86-87.

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countries and settled a model that by and large followed the pattern established since World War II by Western European democracies. In particular, the Spanish Constitution of 1978 uses the German Grundgesetz of 1949 as a role model in everything related to fundamental rights. The influence of foreign models is, in fact, very obvious throughout the Spanish Constitution (and it concerns not only the influence of the German legal system, but also the Italian or the French models which are clearly the inspiration of the new democratic Spanish Constitution).10 Europe was considered at those times, and is still considered now, a model of everything that the new Spain wanted to incarnate… at least as a model of Rechtstaat seeking for integrative identification rather than particularistic exclusion. There was also an economic promise embedded in this process of restoring liberty, democracy and ‘normalcy’ in Spain. In fact, the years that followed the transition to democracy were years of bullish growth in Spain, especially after the definitive acceptance of the country in the EU (then the ECC) in 1986. The European Promise was a promise about liberties, but furthermore, it was also a promise about prosperity, and it has paid off. To sum up, the idea of Europe was, in the 1970s and the 1980s, the safest passport to ‘normality’ for the country. Therefore the Spanish Constitution was designed to fully incorporate the legal impacts of the European institutions, as we can see in different sections of the text, i.e.: Section 10.2: ‘Provisions relating to the fundamentals rights and liberties recognised by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain’. Section 93: ‘Authorization may be granted by an organic act for concluding treaties by which power derived from the Constitution shall be transferred to an international organization or institution’.11

The basis of the Spanish legal system created after the fall of Franco’s regime was the idea of Europe, as embodied by its institutions, its legal system of protecting liberties and freedom and the European Union. This is a distinctive product of the peculiar history of the country, which is extremely important when assessing the legal traditions in Spanish Administrative law, for, together with the authoritarian tradition of which we spoke earlier, it contributes to its unique and distinguishing features. Moreover, the consequences of this process are profound and generate a sense of detachment from the past and an almost unconditional acceptance of all that comes from Europe that will eventually

10

P. Cruz Villalón, La curiosidad del jurista persa, y otros estudios sobre la Constitución (Centro de Estudios Políticos y Constitucionales, 1999).

11

Official translation made by the Justice Department of the Spanish Government available on its web page.

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have important implications for the formation of modern Spanish law.12 This explains, for instance, the receptivity of Spain to new sorts of plural legitimacy of administrative activity.13



2.3 Receptivity and Resiliency of Spanish Law

The European influence in the formation of Spanish Public law has been very important, as we have seen. This case is not really an exception. All the European countries, even the nations with more hegemonic cultures, have been influenced by other legal cultures and, as a result, now share common traditions.14 From that point of view, Spain is not an exceptional case. Its Administrative law was born French and the relations between the public power and the citizens were crafted following German patterns. After that, when the time came to create a Constitutional State, the Spanish system borrowed a lot of ideas from pre-existing constitutional models, like the French and the Italian ones and, for everything related to fundamental rights, the German model. Currently, the influence of the EU and the Administrative law produced by its institutions is key. Explained in these terms, where does the specificity of Spain lie? There are two essential specificities. The first one is that, having imported a lot of traditions, institutions and legal doctrine, the output produced by Spain that has been able to impregnate other European legal systems has been surprisingly irrelevant. The history of the country and its importance in Europe (at least, in quantitative terms) could and should have done better. The second specificity is that Spain has not only accepted a lot of foreign influence in its legal system, but its population and its social, economic and political elites have also been eager to do so. This is the second element that really shows how different the Spanish transition and the Spanish receptiveness to foreign influences have been. The fact that the cultural and social disaster produced by the dictatorship, after a century and a half of pre-existing crisis, created a state of desire towards Europe and an imaginary construction of the EU as the promised land of modernization, represents a distinctive feature characterising Spanish society, the Spanish legal system and its traditions. On the other hand, this situation led to a general defection from the traditions and legal culture that were shaped and reshaped by the model of Franco’s regime, thus adding to the acceptance of European influence a broad sense of widespread rejection of many Spanish traditions. The Spanish Administrative law system has showed an incredible capacity to accept foreign influence and especially an enormous receptivity to the Euro12

M. Franch, ‘Le Droit administratif espagnol dans le creuset européen’, in Jean-Bernard Auby and Jacqueline Dutheil de la Rochere (eds), Droit Admnistratif Européen, (Bruylant, 2007) 603-609.

13

S. de la Sierrra Morón, ‘Historical and Prospective Views on Comparative Law as a Tool to Build a Framework to Legitimacy in Europe’, in M. Ruffert (n 6) 218-234.

14

S. González-Varas, El Derecho Administrativo Europeo (2nd ed, Instituto Andaluz de Administración Pública, 2002) 53-63.

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pean iuscommune. As a matter of fact, the Spanish legal system is an example of resiliency, flexibility and suppleness. It has showed capacity to adapt itself to changing circumstances, to accept the influence of other agents without any reservation and, regarding the EU, to comply with the decisions of the European institutions. This feature has a lot to do with the willingness of the different bodies that form the Spanish legal system to accept the European influence. The commitment to Europe of successive governments and the main political parties has been made clear and has appeared at any occasion in which an affirmative action has been required. For instance, the non-conflictive and swift Constitution reforms in 1992 (after the Maastricht Treaty) and in 2011 (introducing financial requirements recommended by the EU) are evidence of the commitment of the political elite to the process of European construction. Such willingness does not affect only the political elite but also the judiciary. The Spanish Constitutional Court, for instance, has shown a very generous selfrestraint in matters affecting the reception of European law. The Declarations 1/1992 (after the Maastricht Treaty) and 1/2004 (after the so-called European Constitution process), in contrast with the different decisions, for instance, of the German Bundesverfassungsgericht, are an example of this willingness to accept the legal inputs produced by institutions not strictly related to the traditional nation-State. The Spanish judicial system has also been eager in demanding (and following)the European Court of Justice preliminary rulings.15 In conclusion, the Spanish administrative traditions in the context of the common traditions of European Public law have to be closely analysed according to the following: a history of relative irrelevancy of the Spanish Legal Culture in the European Context, a resilient and flexible system that has been able to integrate a number of influences and, finally, the idea of Europe as a finish line that has promoted a painless implosion of the national identity (in legal terms) of the Spanish traditions in the common European pool.



3 Main Characteristics of the Spanish Legal System in Twelve Selected Fields

In order to analyse the Spanish legal system in the context of the European common principles it could be also useful to use as a pattern of analysis the twelve fields identified by Schmidt-Aßmann in his chapter in this book. These fields imply areas where national traditions (in this case, Spanish national traditions) meet common principles. Therefore, they could reveal some patterns that can help us to identify Spanish administrative traditions, as defined in the first part of this paper, and in accordance with the History and evolution explained in the second part. This analysis is particularly interesting because some common principles may be drawn using different national tradi15

Franch (n 12) 609-615.

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tions whereas, on the other hand, we can also find common principles that are the result of sheer scholarly creation. 1. Spanish administrative law is indeed constitutionalised, heavily dependent on classical legal dogma. Although the incidence of judicial precedent is undeniable, the importance and significance of case-law affects the practice of the system to a greater extent than its theoretical construction.16 2. Administrative tasks in Spain include policy tasks, regulation and public service. Not only do they refer to the regulation of private economy, but they also cover large areas of comprehensive administrative tasks following the tradition of the continental model.17 3. The Administrative organisation of the Spanish administrative legal system, although in a politically decentralised country, is still very centralised, as shown by hierarchical steering and ministerial instructions. The domain of independent authorities has never been very big (and it is now receding) and its autonomy from executive interference has never been fully guaranteed.18 4. Spanish administrative tradition considers the legitimacy of executive action as a consequence of a classic chain of legitimacy (elections, representatives, elected officials…). There are no relevant experiences or fields in which we can find pluralist views of legitimacy. If used, citizen participation is intended more as a control measure than a legitimacy element.19 5. Although Spanish tradition tends to codification (with a tradition of having a general administrative procedure act, for instance), the complexity of administrative action has fragmented the legal framework. The objective of having general administrative statutes is a claim that is more honoured in the breach than in the observance.20 6. From a legal perspective, the main criterion of administrative action in Spain is still the legality principle. There are even opinions among Spanish scholars that currently defend the classical idea of positive Bindung of the admin16

I. De Otto Pardo, Derecho Constitucional Sistema de fuentes (Ariel, 1980) A. Boix-Palop, Las convalidaciones legislativas (Iustel, 2004); S. de la Sierra Morón, ‘Les sources des principes du droitadministratifeuropéen’, in Jean-Bernard Auby and Jacqueline Dutheil de la Rochere (eds), in Droit administratif eurpéen (Bruylant2007) 339-356.

17

S. Muñoz Machado and J. Esteve Pardo, Fundamentos e instituciones de la regulación (Iustel, 2009); see also F. Velasco Caballero, ‘The Public-Private Divide in Spanish Law’, in M. Ruffert, The Public – Private Law Divide: potencial for transformation? (British Institute of International and Comparative Law, 2009) 123-141 (133 about the vertical distribution of powers).

18

S. Muñoz Machado, Derecho público de las Comunidades Autónomas (Iustel, 2007); J. Tornos Mas (ed), Informe sobre Comunidades Autónomas (Institut de Dret Públic, 2011); Franch (n 12) 609-226; F. Velasco Caballero, (n 6) 106-111.

19

See for a comprehensive discussion on this topic M. Ruffert (n 6) (especially the chapter about Spain by F. Velasco Caballero, (n 6) 81-114. See also about this general problem E. García de Enterría, La lengua de los derechos (Civitas, 2009).

20

A. Boix-Palop, ‘De McDonald’s a Google: la ley ante la tercera revolución productiva’, 1 Teoría y Derecho, 2007, 124-146.

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istrative action to the legality, i.e., that the Public Administration should not act without a clear and concrete legal mandate. Now, the idea of negative Bindung however is generally shared, binding the administrative action to legality (in a much softer way). Efficiency and other criteria, though being in practical terms unavoidable, are not the legal pattern.21 7. Legality of administrative action in Spain is determined mainly by a substantive concept of legality. Spanish Administrative law has always adhered to the idea of non-formality, and has been traditionally generous with the Public Administration in order to define and provide ways to restore an administrative action damaged by breaches of formal proceedings if it is substantially in accordance with the legal order. This rule also applies to the actions of citizens before public bodies, although it has been traditionally more difficult for them to use it due to bureaucratic obstacles.22 8. Administrative discretion is commonly established in Spain. The fight against its extension has been, in fact, a classic issue in Spain. The administrative discretion that the Public Administration holds in Spain has been questioned both by scholars and the judicial system for years, particularly after the 1978 Constitution, but even now, numerous areas of discretion with zero or very poor control of the administrative activity are still in place.23 9. The forms of action of the Public Administration in Spain have always been plural, with a flexibility to cooperate with private actors. This is the result of administrative ambitions beyond the reach of the effective capacities of public bodies. It is the case in the provision of public service activities, especially as far as social services are concerned, but also in economic activities and, for instance, in areas such as planning and real estate development, where so-called ‘collaboration’ with private agents has always been quite common.24 10. Transparency and participation are not traditional elements of the traditions in Spanish administrative law. Not without difficulties has the Spanish legal system begun to accept the necessity and convenience of implementing a new model of administrative action in this field. The Parliament is currently drafting the first Transparency Act, more than 35 years after the arrival of democracy. Lack of transparency that could be considered a defining feature of the Spanish system. The situation, however, is now changing after having received intense pressure from Europe and new trends are beginning to be noticeable (for instance, the project of the Transparency Act).25 21

E. García de Enterría, T.R. Fernández Curso de Derecho Administrativo (15th edn, Civitas, 2011).

22 23

G. Doménech Pascual, La invalidez de los reglamentos (Tirant lo Blanch, 2001).

M. Sánchez Morón, Discrecionalidad administrativa y control judicial (Tecnos, 1994); T. R. Fernández Rodríguez, De la arbitrariedad de la Administración (Civitas, 1994).

24

The general idea is well reflected in the explanation given by A. Voßkuhle, ‘Co operation between the Public and Private Sector in the Enabling State’, in Ruffert (n 17) 205-20. On urban planning in Spain and private co-operation, see J.M. Baño León, Derecho urbanístico común (Iustel, 2010).

25

E. Guichot Reina, Transparencia y acceso a la información en el Derecho europeo (Universidad de Huelva, 2011).

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11. The control of administrative activity relies heavily on courts, with no significant exceptions of non-judicial tribunals. The activity of institutions such as the Ombdusman has been very little. Mediation and alternative dispute resolution have not been used in the Spanish administrative tradition (although this situation is bound to change if we analyse the European trend in the field). Traditionally, the Spanish system has relied upon the capacity of the Administration to use its own administrative remedies to solve disputes without the participation of judicial courts, but the results have proved that the system does not encourage the Administration to accept mistakes or seek a satisfactory solution.26 12. The administrative courts in Spain, the origins of which are to be found in a tradition of administrative control made by the Administration itself, are now fully independent (we can consider the 1958 Act as the definitive cornerstone in this evolution). They have also gained full control of administrative activity after the Constitution of 1978 that has, little by little, transformed the traditional idea of ‘revision system’ to a full system of protection of both individual rights and objective interests affected by any administrative action.27 Having identified these features after this brief overview, it is rather obvious that the image of Spanish administrative law is the image of a classical one, in sharp evolution, heavily and easily influenced by foreign inputs, but still deeply anchored in some aspects by an authoritarian tradition.



4 Hypothesis of Identification of Some Spanish Administrative Traditions

In the intersection of the features that would define Spanish Administrative law using the cartography provided by Schmidt-Aßmann and its evolution, tradition and the complex relationship that the Spanish elites have with their own culture (and legal culture) we can see at least two Administrative traditions emerging that will meet the methodological prerequisites that we have established for recognition of them. The first is related to the idea of an ‘administrative order’ which has accomplished a lot of functions in Spain, acting even as a sort of rule of law system without a democratic regime. The second is the flexibility and resilience of Spanish Public law, which has accepted a lot of foreign innovations, and is still accepting substantial foreign innovations without hesitation, at least on the formal surface of the system. 1. Spain is used to having a sort of ‘administrative order’ in charge Although lexical similarity points to the contrary, the resemblance between the idea of an ‘administrative order’ and the French tradition of having an ‘État 26 27

E. García de Enterría, Democracia, jueces y control de la Administración (Civitas, 2009).

J.R. Fernández Torres, Jurisdicción administrativa revisora y tutela judicial efectiva (Civitas, 1998); M. Franch, (n 12) 638-642.

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administratif’ is to be dismissed after careful examination. In fact, we can explain it as a ‘tradition’ in all the meanings of the word because its origins are deeply rooted in the authoritarian mood that periodically dominated the consolidation of the modern liberal State in Spain throughout the 19th century. Since then, the relationship between the State and its subjects (only labelled as ‘citizens’ after the 1978 Constitution and still considered to be mere ‘subjects of the Administration activities’ – administrados – until the Administrative Procedure Act of 1992 tried to change this idea and began to speak about citizens), has been vertical and, to a certain extent, pretty praetorian. The above-mentioned doctrines of Donoso Cortés and the receptivity in Spain to the ideas of jurists like Carl Schmitt provide a good example of how this vision of the relationship between the State, its Administration and its citizens has shaped Spanish Public law. In order to have a functioning State, the most important thing was the guarantee of the correct functioning of the administrative order. That meant, of course, that if you wanted to control the country you only needed control of this administrative order without need of democratic supervision.28 As an early 20th century Spanish politician, the Count of Romanones, famously put it, ‘let me draft administrative regulations, whatever the legislative acts may be’. The ideas of democracy and civil liberties, as we stated above, were considered a secondary and non-essential element as long as the ‘administrative order’ was proper (or, at least, functioning). This tradition crystallised in the period 1954-1958 with the building of an administrative State that was supposed to guarantee trade and private business, as well as a fair (or, at least, more or less predictable) relationship between citizens and the Spanish Administration. The ‘administrative order’ in Spain was a substitute for a modern constitutional State following the scheme provided by the rest of the Western European democracies. This tradition can be traced today in our existing Administrative law. Spain has a specific administrative procedure Act, which is not usual in the various European countries (its current version dates from 1992, which replaced the old 1958 Act, since then, it has been modified on several occasions, with major changes included after the 1999 revision).29 As we can see, even the change of regime in 1978 was not considered to be a change that forced a modification of the 1958 definition of the ‘administrative order’. The traditional explanation stressed the fact that the 1958 regulation was a reflection of an absolutely normal ‘Western democracy’ (at least, in its administrative procedures). Nevertheless, although the 1958 Act was a very good regulation, it is also obvious that a constitutional democratic State deserves a bit more, in terms of legitimacy, participation, transparency, etc.30 The fact that this necessity was not felt in Spain at that time also serves as a legitimate testimony of how much this authoritarian tradition shaped a praetorian rule that was very comfortable for the Spanish public powers. Interestingly enough these powers 28

F. Velasco Caballero, (n 17) 123-141 (133 about the vertical distribution of powers).

29 30

M. Franch, (n 12) 626-638.

F. Velasco Caballero, (n 6) 98-101.

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still hold a position of power in administrative relations today in relation to citizens, with no equivalent in other countries. Analysing the different fields given in section 3 of this paper we see that #1 (legal dogmatic) reflects this praetorian idea by producing law, #2 (administrative tasks) offers the image of an Administration with a number of activities having a significant influence on society and on the economy of the country, #3 (organisation) draws the picture of a traditional vertical, hierarchic chain of command, #4 (legitimacy) reflects the primacy of the traditional criteria of legitimacy and shows very little space for other methods of integrated participation, #5 (codification) is an example of a system that is trying to generalise and have significant control of almost everything, #8 (discretion) confers a lot of power to the administrative bodies and gives an enormous significance to their prior decisions and their capacity to motivate discretionary decisions making this idea of praetorian power even bigger, #10 (secrecy) implies a tradition of participation and transparency that is the necessary corollary to a system in which the Administration has a lot of power which is used to decide and to act without giving explanations and data about what these bodies are doing and#11 (controls) offers the Spanish Public Administration room for manoeuvre to avoid problems by being, at least at the beginning of the process, its own judge… assuring that not too many cases reach the judicial bodies. The Spanish Public Administration holds a great amount of power, which extends to many fields in the social and economic activity of the country; and it makes use of it. It has a lot of legal privileges and it is also common to use them. This idea of ‘administrative order’ is deeply impressed in the conscience of citizens and, especially, of the elite. Therefore, the praetorian changes that the Spanish administrative, economic, legal and political elite decide to impose are incredibly easy to pass. This has been proven on several occasions. For example, the Spanish constitutional reform of 2011, which introduced new content in section 135. The whole change was proposed and achieved in only one month. The capacity that the Spanish elite and the Spanish praetorian bureaucracy have to shape public opinion and the general mood of the country has also been shown on other occasions, including referendums about the status of Spain within NATO (1986) or the approval of the so-called European Constitution (2004). The Public Administration and its capacity to craft social and political moods have also played an active role in the ignition of euro-enthusiasm that, until recent years marked by the euro-crisis (and even since, although to a lesser extent) has been a defining feature of Spanish public opinion. The Spanish tradition of ‘administrative order’ has been useful to create spaces of ‘normality’ within a dictatorship where political liberties were nonexistent. Nevertheless, its praetorian side has hampered (and still does) the modernisation of our Administrative law. A lot of features of the current Spanish Administrative law are explained by this tradition. It is also an important reason to understand why some profound changes in Spanish legal culture could be difficult to achieve, at least, beyond the formal capacity to evolve and change in a formal way. 96

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2. Spanish Law accepts foreign influence and has a remarkable formal capacity to evolve It is interesting to note that this state of ‘administrative order’ has also developed, at least since the end of the Franco’s regime, a sizeable formal capacity to evolve and to digest influences. The general mood in Spanish society and its political elite in the transition years (1975-1981), as we have explained, was eagerness to accept and realise big institutional changes. And, as we have explained, changes came, very important in both quantitative and qualitative aspects. Spanish Administrative law has accepted them and has evolved a good deal in a short period of time without too much difficulty. This resilience of the Spanish Administration can truly be considered even if its lifespan ‘only’35 years, as an Administrative law tradition, at least, as an Administrative law tradition in Spain after democracy. To put it simply, Spanish Administration has been able to integrate every change and innovation proposed or imposed by the EU or other foreign institutions. Spanish Administrative law has even been eager to do it, in part because of the fact that this process was considered a necessity to exit Franco’s model and a move towards modernity and democracy. Of course, all these innovations have more formal effects than an absolute capacity to transform profound realities such as the tradition of ‘administrative order’ with the features explained before. Even so, the changes have been so continuous that, little by little, they have even produced some effects in the Spanish praetorian tradition, which is gradually receding. Nevertheless, the interesting aspect of this process, as a ‘legal tradition’, is that it has shown the extraordinary resilience and flexibility of the Spanish Administrative law system, which has allowed all sort of dogmatic innovations. The examples are continuous. Some of them, in fact, could be exactly the same as those scrutinised when exploring the capacity of the praetorian structures to impose priorities, like the constitutional change made in 2011 on the ‘suggestion’ of the European Council in Brussels (24-25 March 2011). In a nutshell, using a text drafted by the President of the Government presented on 23 August, the Parliament voted the amendment without major debate, despite the importance of the change. In this sense, the new contents of the section 135 of the Spanish Constitution states: Section 135: ‘1. All public administrations will conform to the principle of budgetary stability. 2. The State and the Self-Governing Communities may not incur a structural deficit that exceeds the limits established by the European Union for their member States. 3. (…) Loans to meet payment on the interest and capital of the State’s Public Debt shall always be deemed to be included in budget expenditure and their payment shall have absolute priority (…)’31

31

Official translation made by the Justice Department of the Spanish Government available on its web page.

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The modification was published in the Official State Gazette (Boletín Oficial del Estado) on 27 September, only one month and four days after the executive announcement. Since then, the Spanish administrative system has produced a lot of procedures developing the new rule about Public debt. It has been developed by the Organic Act 2/2012 of Budget Stability and Financial Sustainability, and has been followed by important administrative proceedings not only in the State Administration but also in the Self-Governing Communities administrative bodies. The Spanish Administration has also implemented all the rules referring to the financial crisis imposed by the EU (decrees in 2009, 2011 and 2012 have created Public Funds to restore the balance sheets of the most affected banks, advanced the implementation of the Basel III rules, etc.). This reaction to the Euro crisis and the facility to integrate the different procedures coming from the EU, whatever their content may be, has also been shown in other areas: for instance, the ‘Bolkenstein’ Directive 2006/123/EC on services in the internal market or the changes in the education system made after the Bologna Declaration of 1999 are good examples of this very same idea: a country and a Public Administration eager to accept and adopt innovations coming from Europe, at least at a formal level, that promote to big changes in the proceedings and administrative structure of different controls or public services. It appears this capacity exists regardless of the complexity of the changes to be implemented (‘Bolkenstein’ Directive), and regardless of whether other European countries substantially alter their procedures or not (Bologna Process) and even at a constitutional level (the core of sovereignty in traditional formal vision). In light of all the above, this feature could indeed be considered a specific Spanish Public law tradition. In fact, if we analyse the different fields of section III of this paper we find a lot of examples of this capacity for big and structural transformation: Spain has accepted with ease the changes in legitimacy of the whole legal order produced, for instance, by the emergence of a European Legal Order (#1), including all recent changes in economic regulation and the role played by the administrative bodies there (#2); the Spanish Administrative system is an example of change at an incredible pace from a centralised model towards a complex decentralised system (#3); although contradicting its own tradition by the acceptance of changes concerning transparency (#10) and participation even as a source of legitimacy (#4); the Spanish system accepts changes in the way of doing things with ease (#6, #7 and #9); and, of course, it has accepted a number of changes emanating from the EU(or that are certain to come) in codification trends (#5) or remedies to the administrative action (#11) without opposition or structural problems to integrate them. As we have seen, this impressive capacity to evolve and to accept different influences can be detected in almost any field we analyse.32 It is a general pattern of current Spanish Administrative law. 32

See, for instance, the examples given by Ponce Solé, (n 8) 168-173.

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Both traditions are at some point connected, as we can see, in a complex relationship. The praetorian model eases the introduction of new concepts and procedures.33 On the other hand, it logically fights again innovations that undermine its hegemony. In such occasions, as a result of the particular history of Spain and of its Public law, authoritarian traditions have gradually receded. The pressure of history and the lack of emotional attachment to the authoritarian legacy made it easy to pass it over when pressure from Europe has been strong enough. This could also be the reason why, despite the fact that the European crisis may well foster diversity in the different Member States, the answer in Spain, at least until now, has been to accept even more European integration as the solution to the crisis. This is because the resilience of our system allows it and because the consensus of the elite around the idea of Europe and the EU project eases the use of our powerful administrative order to channel the changes that have been considered as convenient by the EU without significant opposition.

33

For instance, when we are refering to new forms of administrative Legitimacy (as counter intuitive as it could be), S. de la Sierrra Morón, (n 13) 233-234. Assessing the validity and effects of this new forms of legitimacy, M. Ruffert, ‘Comparative Perspectives of Administrative Legitimacy’, in Ruffert (n 6) 351-360. If we think about this debate in the Spanish context, it could be said that the conflict between democracy and certain new forms of legitimacy is obviously easy to digest in a tradition of praetorian administrative activities where democracy for decades has been considered as an ‘optional extra’ (i.e., somekind of luxury which was not absolutely essential for good and functioning ‘administrative order’).

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What about Integrity? National Traditions of Registration and Transparency Gunilla Edelstam

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1 Introduction

How does tradition of openness in the Swedish democratic state correspond with integrity as regards information that the state has on individuals? There are two very Swedish as well as Scandinavian legal traditions, viz., the national registration and the public access to official documents. They will be discussed in relation to the common principle of ‘Integrity’. The registration of individuals interacts with the public access to official documents in a way that individuals might regard as violation to their integrity. Regulations on national registration and of public access have a long history but there are obvious difficulties to adjust them to protection of integrity today. These legal traditions regarding access and registration are important, especially as regards possibilities of control within administrative law. Individuals are controlled and the state and municipalities are controlled through these legal instruments that are considered fundamental to the welfare state and the democracy. National legal traditions may be an obstacle to a common European framework of law and basic principles. There are legal principles that through the cooperation of the European states and their common courts, the European Court of Justice (ECJ) and the European Convention of Human Rights (ECHR) are common to the states and that should be observed by them. Such a principle is the right to integrity. This paper starts with some remarks on registration and access to documents as traditions and on integrity as principle (2). It then deals with the national traditions on registration and public access as regards development and content (3) and thereafter with integrity as a problem in relation to the national traditions (4).



2 Traditions and Principles 2.1 Tradition

Why would national registration and public access to official documents be regarded as Swedish traditions? Tradition (in Latin ‘traditio’ means that which is transferred) is concerned with the multidimensional social inherence that is transferred from one generation to the next and so forth.1 Legal tradition signifies a way of legal acting that has a long history at the national level. Much of the legal context has been in existence since long. In that respect, much law represents a legal tradition. Many of our legal traditions are similar 1

Of relevance regarding legal matters is that it can be institutional traditions regarding organization or hierarchy. It can also be traditions regarding values and ideals or tradition on how to behave such as, ways of working.

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to traditions in other European states but the idea here is to try to catch a legal context that is basically very different to the legal contexts in other European countries. Sweden has registered inhabitants since the 17th century and the transparency regarding official documents was stipulated in the 18th century. Denmark, Norway, Finland and Iceland have similar regulation as regards registration of citizens.2 The tradition of national registration that we have in the Scandinavian countries does not exist in other EU States. The national registration has in addition been made electronic and there exists today not only the national register on citizens, but also several electronic registers that can be run together, for example, with the help of a ‘search word’ such as a person’s number from the national register. As regards public access to official documents Sweden together with Finland has since long (from 1766) had this legal tradition but it has also later been introduced in Norway and Denmark. Similarly, other countries have introduced regulations on access to public documents3 but in most countries the opposite is the rule and documents are secret. The public access to official documents means that information to a large extent has to be handed over to anyone who asks for it, other authorities, media­­, or anybody else. Documents on one individual can be handed over as well as registers on many individuals. A register is a document. The combination of the information that can be easily obtained this way can be disturbing to people. They might consider it as a breach of their integrity. 4 To make information on citizens public the way we do in Sweden, can, in addition, be found offensive in other European countries. The registration of citizens that we have is very important to Swedish administrative law. It is a fundamental condition for the functioning of the state and the municipalities. One cannot have contacts with the administration of the state or the municipalities without giving the registration number. When you have the registration number i.e. the ‘person number’, you can easily find other information on individuals such as incomes and taxes. There is public access to such information. Public access is a fundamental condition for the state as well. It is considered as fundamental to the democratic system. The public can control the acting of the state. The national register as well as other registers that can be run together with the national register is an important tool to make the administration effective and also to create legitimacy. The registers are of special importance within the welfare system where control can be made through the registers. This is 2 3

SOU 2009:75 Folkbokföringen 122.

USA, France, the Netherlands and also the EU.

4

The content of integrity is not easy to define. The EU Charter mentions the protected sphere. Privacy and integrity are close connotations and they are both used together. The English word privacy covers integrity but also personal independence. For definition of integrity, see SOU 2007:22 Skyddet för den personliga integriteten. Del 1, 52ff.

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effective and it contributes to legitimacy if tax-payers money can only be given to those that really need it. Registration and public access to documents are very old and very strong traditions in the Swedish legal system and are of huge importance to administrative law in Sweden. They are strong Swedish as well as Scandinavian traditions which might create obstacles to a common principle: protection of integrity.



2.2 Principle

Principles (Latin for ‘Principíum’ which means beginning) is used within metaphysics as well as in ethics. In metaphysics it stands for the ultimate basis or condition for the existence of something. In ethics it signifies a rule of acting or a precondition for acting. There are lots of principles in law, sometimes they are called ‘principles’ as for example the ‘principle of legality’ and sometimes not. It can be up for debate whether all legal rules are to be considered as principles as they always alone or together with other rules form rules of acting. An example is that of the procedural rule, that stipulates two persons being in charge of opening the tenders in a public procurement matter. Is it a principle or just a rule that has been stipulated in order to guarantee that the basic principle of objectivity is observed by the administration? One can in such cases separate main principles from sub principles where some (of the mainprinciples) are more fundamental than others ie the sub-principles. I will have as starting point that ‘principles’ does not concern just any rule. Instead it concerns the main principles. Such principles concern fundamental ideas that constitute European democratic legal administrative systems and that form the basis of such a system. Legal principles are closely connected to ethics where morals are involved. Morals are what we do or don´t do due to our values while ethics are the theoretical reflections over morals and its fundamentals. Legal principles are or are not codified in the legal system. Regardless of which, they form fundamentals or basic conditions of legal acting. Common principles can exist within Europe, irrespective of whether they have been stipulated in the treaties or conventions. ECJ, as early as the 1960s started to be active in human rights principles and their importance to the application of EU law. The court developed basic principles of human rights in court cases.5 Especially important was EC 29/69 Stauder v Ulm in 1969 ECR 419 in which the court found that the human rights were part of EU law. Also in 11/70 Internationale Handelsgesellschaft against Einfuhr- und Varratsstelle Getreide (1970) ECR 1125 the court found that the respect for basic human rights was an integrated part of the common legal principles that was to be protected by the court. Integrity involves a freedom in relation to the power of the State. Sweden has sometimes questioned some human rights due to the fact that they have 5

Cf. Allgårdh Norberg, EU och EG-rätten, 4:e upplagan, 99.

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not been stipulated and that they were thus not part of Swedish legal system. This kind of ‘natural law’ could be in contradiction to positive and written law and hence looked at with scepticism. This way of looking at such ‘principles’ was emphasized by the philosophers behind the Scandinavian legal realism according to whom ‘values’ did not exist.6 The existence of values as basis for the law was denied according to Scandinavian legal realism philosophy and this has influenced Swedish law for example on the lack of a constitutional court. However with the European Convention of Human rights and with the EU Charter on Human Rights basic principles involving human rights have been emphasized. The human rights concern principles of importance to individuals in relation to the state. The same can of course be said of other principles, for example, the principle of legality as the administrative agencies may not take a decision negative to a party unless there is support in the law, which signifies legality. But the human rights – as well as some other principles are specially important as they form a limit to the power to legislate. Human rights are principles that can be in contradiction to the legislation made by the parliament. The parliament has to observe such restrictions of fundamental principles to their power. Main principles, as pointed out above, can be considered as ultimate conditions for the existence of something. Such legal principles signify ultimate preconditions for legal acting, for law-making and for application of law. Legality is an important principle in a western democracy but it is not the ultimate condition for acting within administrative law. There are principles that can form even more fundamental conditions to the law, to its establishing and its application. This has obviously also been the way that the ECJ has looked at it. The Court has found it necessary to establish certain principles that have become part of the EU-legislation. Some legal principles can therefore be regarded as conditions that are fundamental to the acting of the legislator. This holds true for the human rights. Within Europe the right to integrity can be considered as a common main principle. It concerns the relation between the individual and the State. Every person has a right to have a sphere protected against encroachment and the State must respect that sphere, but what is that sphere of integrity? Integrity is a conception that is used in legal contexts but not always easy to define. However it concerns a freedom right that must be considered as basic to any democracy. If integrity of individuals is not to be respected by the state this would imply a totalitarian state without limits as regards oppression. There might be limits as to how far the right to integrity may go in a more humanitarian state. The right to integrity can be limited through law if it is necessary due to a pressing social need. The limitation must be proportional to the purpose.7 Any limitation of the right must be regulated and there is, in addition to that, a sphere that cannot 6

Cf. Gunilla Edelstam, ‘Wissenschaft von Verwaltungsrecht: Schweden’; in A. von Bogdandy, S. Cassese, P. Huber (eds.), Handbuch Ius Publicum Europaeum, Band IV, 277ff.

7

Hans Danelius, Mänskliga rättigheter i europeisk praxis, 3U, Norstedts Juridik 2012 351.

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be stepped over by the state. What that sphere of integrity more exactly implies must be defined in practice. That the right to integrity is a common principle in European states is obvious. It is a part of the EU Charter of Human Rights and of the European Convention of Human Rights. In addition to that it is a part of the UN Declaration. The Member States of the EU are all members of the UN and of the Council of Europe and have therefore accepted integrity as a basic human right. The UN Declaration speaks of a prohibition of encroachment as regards private life, family, home, correspondence as well as honour and reputation. The ECHR speaks of respect for private and family life, home and correspondence (Article 8). The EU Charter on Human Rights speaks of respect and protection of human dignity (Article 1), of physical and mental integrity (Article 3), of protection of private and family life (Article 7) as well as of protection of personal data (Article 8).



3 National Legal Traditions of Registration and Public Access



3.1 National registration

1. The regulation on registration There is National registration of all citizens and others living in Sweden which has a record of their name, date of birth, address, family affairs (children, husband wife, etc). In the national registry, a ‘person number’ is allotted to every citizen as well as numbers for everybody else resident in Sweden. The number consists of date of birth, place of birth and a controlling number to check that the other given numbers are the right ones. You get your number when you are born or when you become resident in Sweden. There are in addition numbers also for others.8 The purpose of the national registration is not regulated and it has not been regulated as it could imply that the purpose would be too limited and essential parts of it would be left outside. It has been considered not suitable to regulate the purpose.9 There should of course be a ‘public interest’ and the registration should serve the common good but what that is has not been defined. The information is used for everything. It is used as basis for decision-making of the administration. The persons that have rights and duties must be registered in order to have access to rights (for example welfare rights) and in order to be bound by legal duties (for example pay taxes). In relation to the state and the 8

Persons that are not in the national register (for example, persons who stay for less than one year and diplomats) can get a ‘samordnings nummer’. There is a special registry called ‘referens registret’ for such persons. Compare Skatteverket SKV 707 utgåva 2. The number is necessary in order to have for example a bank account.

9

Compare SOU 2009:75, 124f.

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municipalities you get nowhere without your registration number. This holds true not only for administrative decisions but also for civil law issues and penal law issues. It is also used in the civil society for all kinds of things. One cannot get a bank account without a registration number. One can also not get employment without the number. It is on the identity card and on the driving license and on all other official documents. The national registration is used not only for decision making and identity-cards but also used by authorities for other purposes such as statistics. It is even used for dispatch of for example of advertising brochures. The advertisers can buy the information on citizens from the State. The regulation as regards the registration can be found in the Law on National Registration but in addition to that there are several other registers with information on citizens that different authorities keep. While the regulation on national register mainly concerns registration of the person, his identity, his family affairs and number, there are thus several other registers with other information on individuals. They are electronic and can be run together to a huge extent. The person number from the national register can then be important as a ‘search word’ to receive all possible information on the individual. 2. History and development National registration as mentioned has a long history. The oldest and existing church books date from the beginning of the 17th century.10 The first national regulation on registration in church books was stipulated in 1686. The purpose of it continued being to serve the church in its work and this law accurately stated what was to be registered. It included marriages, births, deaths, names of people that had moved into or out of the parish.11 This information was also used for census and taxation purposes of the state and made it possible to get men to enrol into war services. The clergy however protested against being secretaries to the state in such matters and the positions of the ministers were delicate as the inhabitants of the parish expected the ministers to be loyal to them while he had to be loyal to the power that was the king. The protests gave result partly and registration for census and taxation was to be handled by the county fiscals but after decades of quarrels on this, during the 18th century, the officials received access to the information that the church had. But the clergy continued to protest against their obligations and their participation continued to be up for debate. In 1812 it was laid down in a regulation that the ministers had to contribute to the census and taxation registration12 There were thus two forms of registration; the registration in the church books and the census registration. From the beginning the registration through 10

www.skatteverket.se, Den svenska folkbokföringens historia under tre sekler (Swedish national registration during three centuries) 2 and 6.

11

Church law of Sweden, 1686, Chapter 24 § 22.

12

www.skatteverket.se, Den svenska folkbokföringen under tre sekler, 67.

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the church books was for church purposes but it became important for the civil society as well. Information on domicile and family affairs were needed not only for the church and its ordinary church activities. The church used to be responsible for social care for the poor and schools for children. The registration was needed for this as well. However the registration was also needed as a basis for taxation and for military recruitment. With the first regulation on registration in the church books in 1686 it became an obligation for the priests to register information on citizens. At this time it was laid down that the clergy had to register information on, for example, birth, name, family affairs, death and the migration in and out of the parish. It was also established that the purpose of the national registration should be to register the citizens to meet the needs of society such as tax collection and controls required in connection to it.13 Most of the rights and duties of the citizens depended on the census registration. The differences between census registration and church book registration ended in 1946. In 1946 the registration was reformed and the main purpose became to keep a register on the citizens. The registration then became a tool to make the collection of taxes more effective, to control the tax declaration, to make social statistics and to regulate the labour market. It was still handled by the church but a central registration authority was introduced as well in 1858. The ‘person numbers’ were introduced in 1947. During the 1960s personal information started to be dealt electronically. Since 1991 the Tax Authorities began handling the national registration of citizens. This authority also handles the tax data base and it has a central role in distributing information to others as well as receiving information from others. Information that the Tax authorities receive is spread to other authorities and to private law bodies. Other authorities also have their electronic registers on citizens. The registers – national register, the tax database, as well as other registers – can to a large extent be run together and a lot of information can easily be found on individuals. Administrative authorities keep registers on citizens as a tool to improve their effectiveness. The whole society has access to information that the national registration as well some information from other electronic registers have. Information is transferred on a daily basis to other authorities through the NAVET system and it is also distributed through the SPAR system to private law bodies. The information from SPAR can be bought from the state/tax authority by any customer. Banks and Insurance companies and others buy information on citizens from SPAR. The information is considered as ‘harmless’ and as the principle of public access to official records forms a constitutional basis of the democratic system it can be handed over to anybody. Through SPAR the customer (that buys the service from the taxation authority) can search informa13

SOU 2000:17 Folkbokföringen efter stat- kyrka reformen mm., 53. SOU 1994: 44 Folkbokföringsuppgifterna i samhället, 23 ff.

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tion on a citizen by using for example his or hers person number. The SPAR service is meant to be used by private bodies. There is a special service for authorities. The information that they need goes from the Tax-authority through the electronic system called NAVET. It is sent to other authorities on a daily or weekly basis and the current authority does not need to ask for it. There is in addition, electronic cooperation and electronic exchange of information, where information in registers that different authorities have, is automatically run together. This is done in order to obtain more information on the citizens. The goal is above all to stop or prevent misuse of the national welfare system. It is also used for other things such as for example research.14 A widening of the possibilities of automatic comparison was introduced through a law in force from January 2009 on extended exchange of electronic information. Through this law the national insurance authority, the national tax-authority and the social boards of the municipalities can exchange information. A social board that is to handle an application on economic support to an individual can therefore immediately receive information from the tax authority. Information on citizens can according to this law also be exchanged with the migration authority, the enforcement authority, the national pension authority, the national employment office (that helps you to find a job), the national study allowances office and the unemployment benefit funds. Secret information can be included in the exchange. The existing secrecy is in general valid also in relation to other authorities. In some cases there is however a duty to give secret information to other authorities and the exchange of electronic information where registers are run together could also include secret information. There is a so-called ‘direct access’ for some other authorities to secret information in registers.15



3.2 Public Access

1. The regulation on access There is public access to official documents according to the Freedom of the Press Act. Sweden has several constitutional laws and one of them is the Freedom of the Press Act and there is also a special constitutional law for broadcasting and television with similar provisions. The freedom of the press and of other media is considered to be fundamental to democracy. Documents can be accessed – for example in a case where an authority has made a decision but also a register is a document and it can be accessed in accordance with the principle of public access to official documents. The stipulation in the constitution implies that officials must hand over documents that are not confidential according to law on demand and that in addition some confidential information may be given to media. 14 15

Such as the life gene project on diseases.

Compare Reg. prop 2007/08:160 Utökat elektroniskt informationsutbyte, 39 ff.

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‘Every citizen shall be entitled to have free access to official documents in order to encourage the free exchange of opinion and the availability of comprehensive information’. ‘Documents’ include any written or pictorial matter or recording which can be read, listened to, or otherwise comprehended only using technical aids. Electronic documents are included. There are exceptions for documents that have still not been’ drawn up’, that is where the agency is still working with the document and for memorandums and there are of course documents that will not be official due to confidentiality. The main rule is however public access to official documents and confidentiality is the exception. Confidentiality that exists is stated in the Public Access to Information and Secrecy Act where absolute secrecy is rare. It is ‘absolute’ in case the secrecy provision does not lay down any special conditions for the applicability of secrecy to information mentioned in the provision. However the majority of secrecy provisions are subject to prerequisites regarding their applicability, which require that certain special conditions are met. The conditions are formulated as a requirement of damage. Such a requirement means that secrecy applies provided that some risk of damage exists. There are two types of requirements of damage, straight or reverse. Straight requirement of damage indicates that secrecy does not apply as a main rule and information may be disclosed. Reverse requirement of damage indicates secrecy to be the main rule.16 The particular official who is asked to give out the document must in such a case always decide whether the document is secret or not. If he gives access to a secret document he can be sentenced for breach of confidentiality and if he refuses to give access to a document that is not secret, then his opinion would not qualify as a final decision. Instead, the person who asks for access should ask for a decision from the chief in charge of such issues. That decision on denial can later be appealed to administrative courts and the handling of the appeal will be given priority by the court. Access to information in registers exists for authorities as well as for private law bodies. A public authority can in addition have access to secret information if there is a duty for other authorities to give information to that authority or if there is a stipulation on direct access to information that other authorities hold. Most information held by public authorities, is not secret and information mentioned in the Public Access to Information and Secrecy Act, can in general only be secret if disclosure can be assumed to cause damage. Other documents are harmless and can be handed over to anyone who asks for it. Documents concerning information (on for example, individuals) not mentioned in the Public Access to Information and Secrecy Act cannot be deemed secret as they have to be handed over to the person requesting for them. 16

Straight requirement of damage can be expressed in the law in the following way: ‘Secrecy shall apply to matters concerning ..... if it can be assumed that disclosure of the information would cause damage to the private party’. Reverse requirement of damage can be expressed as: ‘Secrecy applies to matters concerning ..... unless it is manifestly evident that the information may be disclosed without the private party or a person closely related to him being harmed’.

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There is access to a lot of information on citizens. There is access to ordinary documents, for example in connection to decisions on individual cases such as architectural drawing of a person’s home in a building matter. In addition, there is access to information in databases where information on many individuals can be obtained. Taxation of individual citizens as to how much a citizen earns and the taxes he or she pays are official documents. Such information is considered as harmless by the legislator and it is obviously considered as important for the democracy as transparency is supposed to serve democracy. 2. History and development The principle of public access to official document has a long history. The freedom of the press as well as the principle of public access to official document were, as mentioned, established in the Freedom of Press Act as early as 1766. The idea behind this principle is that through public control authorities shall become more effective, legal security of the citizens shall be enhanced and the risk of corruption and abuse of power shall diminish. The principle is considered to be an essential precondition for freedom of discussion which is a part of the freedom of the press. The access to documents was considered as an important source for the one that wanted to use the freedom of the press.17 Although, kings have in the past, from time to time, given precedence to confidentiality, liberalism in the 19th century brought it back. The current freedom of the press act that includes the principle of public access to official document is from 1949. 3. The two public law traditions Registration of individuals as well as public access to official documents must be considered as very strong legal Swedish as well as Scandinavian traditions. These legal traditions have a long history of daily use and have survived over time from generation to generation. These legal traditions are not widely shared in other administrative legal systems. They are of basic importance to administrative law and its legitimacy. They serve as control and that control is related to legitimacy of the administrative legal system. The registration is of basic importance to our welfare system. Authorities receive tools that facilities retrieving information on for example the applicants of social benefits and to control information that the applicants give to the authorities. This serves the legitimacy of the State as abuse of the welfare system will diminish the will to contribute to the system. The public access to documents is also a means to control but in this case it acts as a control of the State and its actions. It is a tool that is meant to promote democracy. Both of these legal traditions, registration as well as public access, concern administration and both have controlling functions. One implies control over individuals and one implies control over the State and its administration and both are of fundamental importance within the framework of administrative law. 17

Gustaf Petrén, Tryckfrihetslagstiftningen (6th ed. Svenska tidningsutgivareföreningens skriftserie Nr 1. 1978).

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Rights and duties of the citizens in relation to the State and the municipalities are based on national registration. One always has to give the personal number to any authority or for that matter to private institutions, banks as well. With the development of technology, other registers than those that existed in the beginning have been added to the tradition on registration. The registers are seen as important tools to create effective administration. Most of the information on individuals, not only the information that is included in the national registration and other registers but other information as well can be given access to in accordance with the principle of access to public documents.



4 Integrity

From a European perspective integrity is a common principle. This can be observed in the case laws of ECJ as well as in ECHR. Integrity is now part of the Charter of the EU. The question here is how integrity appears from a national perspective.



4.1 Constitution

In the Swedish constitution from 1809 that existed until 1975 there was a statement in § 16 concerning the possibility of the king to interfere (he should not ‘force the conscience of anybody’) but it was considered not to contain any legal guarantee for the freedoms and other rights of individuals.18 A reason why it was considered to be no guarantee was probably partly while the king lost his power during this time and a democratic system was introduced. Constitution did not play an important role. Constitutional changes were instead gradually made in practice and there was for at least half a century a difference between the written and the living constitution. § 16 had however existed with some changes from around 1350 when the King Magnus Eriksson formed the basis of the relation between the king and the citizens of the realm and it had its roots in even older law-rolls of the Swedish Provinces.19 With the revised constitution, the instument of Government, of 1975 the power of the king was taken away and a chapter on fundamental freedoms and rights was introduced. However in the proposal for an amended constitution in 1972 there was no chapter at all on human rights. Only the freedom of the press and related stipulations had a constitutional setting of its own. The mere thought that there could be legal principles that were above the constitution was unfamiliar to the legislator of the constitution.20 In the chapter on fundamental rights that was finally intro18

SOU 2007:22, 48.

19

Gunilla Edelstam, ‘Legitimacy Issues in Administrative Law’, in Matthias Ruffert (ed.), Legitimacy in European Administrative Law (Europa Law Publishing, 2011) 118 f.

20

Fredrik Sterzel, ‘Rättsstaten i 1974 års RF’, in Fredrik Sterzel (ed.) Rättsstaten – rätt politik och moral (ISBN: 91-8758-212-0 Series: Legal Fund 31 Rattsfondens Skriftserie 1996) 110.

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duced from 1975 there was little on integrity but from 2011 there has been some changes made in the constitution as to protection of integrity. A more general statement was introduced in the constitution in 1975 which states that public power shall be exercised with respect for the equal worth of all and the liberty and dignity of the individual.21 It was also established that everyone shall be protected in their relations with the public institutions against any physical violation. Everyone shall likewise be protected against body searches, house searches and other such invasions of privacy, against examination of mail or other confidential correspondence, and against eavesdropping and the recording of telephone conversations or other confidential communications.22 Amendments were made from January 2011. It was, in addition to what already existed, laid down that everyone shall be protected in their relations with the public institutions against significant invasions of their personal privacy, if these occur without their consent and involve the surveillance or systematic monitoring of the individual’s personal circumstances.23 However these constitutional stipulations on integrity can be changed through ordinary law.24 The limits referred may be imposed only to satisfy a purpose acceptable in a democratic society. The limitation must never go beyond what is necessary with regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free shaping of opinion as one of the fundamentals of democracy. The protection of integrity that has existed in the constitution has been difficult to take to court as Sweden does not have a constitutional court and to take it to ordinary courts has been difficult as there was until January 2011 only a possibility to take such constitutional issues to court if it was ‘obvious’ that the judgment in a case was in contradiction to the constitution. Regarding human rights this is never obvious. Reasoning concerning such issues has therefore not developed in the reasoning of the courts of Sweden. The prerequisite ‘obvious’ was abolished with changes from 2011 and it remains to be seen what effect this will have for issues regarding integrity. A lack of protection of integrity is related to the access to documents but that access is strongly protected in the constitution.



4.2 Ordinary Law

1. Well-reasoned analysis? The Swedish legislators have always been reluctant to giving courts the power to reject a law. Sweden does not have a constitutional court. Instead the idea has been that the legislator shall see to it that constitutional rights are observed in new legislation. The lack of fulfilment in that respect has however been heavily criticized in a public report.25 Protection was insuf21

Instrument of Government, Chapter 1, Art. 2.

22 23

Instrument of Government, Chapter 2, Art. 6.

Instrument of Government, Chapter 2, Art. 6.

24 25

Instrument of Government, Chapter 2, Art. 20, 21.

SOU 2007:22.

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ficiently observed in new legislation. Legislation that restricts integrity is often made without enough regard to protection of integrity.26 The committee noted27 that when the parliament changes points of view on the protection of privacy in connection to new legislation in some area (for example, the use of compulsory means or the possibility to register information on DNA analysis) it did not explain the reasons for the changed points of view in the preparatory works. The committee found28 a scarcity of comprehensive view, of systematization of this and also of consideration of proportionality in the legislation. This, in combination with the absence of any effective remedy also makes it very difficult for the individual to obtain redress if his integrity has been violated. The committee stated29 that a legislation of high quality should be based on well-reasoned analysis as well as adjusting of interests and accounts of consequences. The legislation should be well adapted to its purpose. From a legal technical point of view the solutions should be without demurs. The committee however found30 it unambiguous that protection of integrity was flawed in legislation and that there was a lack of consciousness as regards the importance of protection of integrity in legislation. 2. Special legal protection of individuals that feel threatened The legal national traditions as well as their applicability not only to ordinary documents but also to information on individuals in several databases can cause problems to individuals and the legislator has had to handle such problems. Protection for individuals as regards their personal number and other information in the national register and in the databases of the tax-authority can therefore be indicated through a note of secrecy.31 A citizen can ask for such a note to be recorded in the system. He or she has to tell the authority as to why this note is to be included, however this is not regulated. A ‘note of secrecy’ is a warning signal. The decision on whether there is secrecy or not is to be taken 26

The committee criticized among other things the use of means of compulsion within the Security Service. Also, the lack of new legislation on police registers was considered as passivity by the legislator. The committee found it remarkable as the lack of legislation had continued for more than a decade and the police was given access to more and more information that concerned privacy. The possibility to get information on somebody´s solvency was also among the matters that were criticized by the committee. See SOU 2007:22 489 f.

27

SOU 2007:22 453 f.

28

SOU 2007:22 491.

29 30 31

SOU 2007:22 445.

SOU 2007:22 489.

It can be done on a document or if it is electronic then in the document or in the data system where the electronic document is dealt with. The note shall specify the adequate secrecy regulation, the date when the note was done and the authority that made the note. The authority is however not obliged to do this; but they shall always before giving a document etc. to the public, consider the eventual secrecy. SOU 2009:75 396 f.

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by an official at the authority when someone asks for the information. The information is however regardless of such secrecy given to several other public authorities that have ‘direct access’ (through NAVET) on a daily or weekly basis and the public authority that receives information with such a ‘note of secrecy’ is responsible for its registers and thus decides how to handle the information (as regards the secrecy and its relevance according to the Public Access to Information and Secrecy Act) when someone asks for it. In September 2009, 12, 110 persons had ‘notes of secrecy’ and the figures have increased since then.32 Another form of secrecy is ‘kvarskrivning’ where a person who moves his or her residence from one address to another can remain in the national registration on the address where he or she lived before. This means that the mails addressed to him or her will be delivered to the tax authority of that region. The tax authority decides on kvarskrivning. A third possibility is to give the person a completely new identity which is the so called ‘fictitious person information’ that has no connection to the old identity. Such a decision cannot be taken by the tax authority. A decision has to be made by the county court of Stockholm and the application must come from the National Police Board. Secrecy must in order to diminish the threat to a person, cover also other persons of the family. Notes of secrecy etc. have many negative consequences for the individual. For example the mail must go to the tax-authority and it will take longer time before he or she receives it. Bills might arrive too late to be paid in time. It is not said in the law on national registration what circumstances there must be for the authorities to put notes of secrecy. Information that is given such notes (and where thus the information will probably not be given to someone that later asks for it) can for example be on very rich persons and their families that fear kidnapping33, immigrants that fear crime/murder of ‘honour’ or, women that are threatened by the former husbands etc. ‘Kvarskrivning’ can be granted if the individual can be exposed to crime, persecution or serious harassment. Fictitious person information can be granted if the person’s life, health or freedom is in danger. Individuals that have belonged to criminal gangs, but left and afterwards helped the police to get hold of members of the gang can be valuable to the work of the police but they are often very young and can have huge difficulties to live their lives. They can receive a new identity. There is a special law 34 as regards fictitious person information where the person receives right of using other person information in the national registry.

32

In September 2008 there were 11460 notes of secrecy in the database on national registration and the number has increased since then. In 1988 the number was 1600. See SOU 2009:75 401.

33

The latest kidnapping took place in 2012.

34

Lagen (1991:483) om fingerade personuppgifter.

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3. Protection of others Although there are the mentioned possibilities to have some secrecy for personal information, these are only exceptions. However there are problems also for others. Except for the discomfort and breach of integrity that those other than the above mentioned groups might feel when, the tabloid press publishes articles on for example, ‘Those who earn the most in your neighborhood’ or such similar information taken from the registers, there are several other problems regarding integrity in relation to registers and public access. Some are connected to crimes. There is above all an increase of ‘stolen identities’ in Sweden where criminals use the identity of someone else for a fraudulent purpose. This is one of the most frequent crimes in Sweden and the number of unrecorded cases is an addition very high.35 It is very easy to steal somebody´s identity. Information from the tax authorities is of great help. For example in March 2012 a 21 year old man was prosecuted for having stolen more than 50 identities and having taken loans through mobile phones on more than 100000 SEK (approximately 11000 euro). The young man had collected information on the identities on Internet (for example there is a company called birthday.se that contains personal information taken from the national register) and he had called the tax authority for information (from the public documents). He got information on their credit rating from a credit rating agency. Then he called a phone company using somebody else´s identity and said that he had lost his SIM card. When the phone company made question he could answer them with the help of all the information that he had collected and receive new SIM cards that he could use to have SMS loans which were later transferred to his own account. The Swedish principle on access to public documents has thus become a tool that is used by criminals. Anyone can pose anonymous and without giving any reasons call the tax authority and find out a lot of information on others such as for example address and personal number. Here a crime had been committed and that could be taken to a penal court but it is not possible for a person to take measures against registration and public access except for the notes of secrecy, etc. Information might be found in a register but it might also be found in ordinary documents that are not included in a register. Criminals can combine the possibilities or use one of them as secrecy can rarely be the case.36 In September 2009 there was a robbery against a company G4S, Cash Services money depot in Västberga in southern Stockholm. There the money from different companies 35

No author mentioned, Stulna identiteter ökar dramatiskt, Integritet i Fokus, (Paper from the Datainspectorate) (2/2012) 5.

36

Cf. Kammarrätten i Jönköping 2012-06-14 1488-12, 1539-12 where the maps and architectural drawing of the royal summer residence Solliden on the island of Öland was considered to be comprehended by secrecy when two persons asked for them and had appealed a denial. A judge was dissident and found that there was no possibility for secrecy according to the law for such drawings. In another similar case (Kammarrätten i Stockholm 4966-05) the court considered the information to be subject to public access.

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was counted during nighttime. Early in the morning around 5 am on September 23 2009 a helicopter landed on the roof of the building and with the help of an architectural drawing of the house it was easy for three armed men to open a roof window and to get down in the building to the place where the staff of the security company was counting money from shops, etc. in Stockholm. They left with the helicopter and the money from the roof soon after. This robbery concerning stolen money is the second largest robbery ever having taken place in Sweden. G4S Ltd had tried to get qualified legal protection regarding the building without success. However after this robbery incident the law was changed and the law now gives qualified protection extending to buildings storing Swedish bank-notes and coins.37 Such a company as the G4S can now apply to the public authority for a protected object decision, Such a decision implies amongst others the right to surveillance by the police or military personnel. However when a person requests protection of his home, he or she cannot have protection for its architectural drawing. An architectural drawing (contained in the building permit case at the municipality) of his or her home can be used wrongly for instance, kidnapping, burglary or robbery. The owner however can only ask for the above mentioned ‘note of security’ and a denial of such a note cannot be appealed to any higher authorities. It is possible for a criminal to get information on a person through media (for example, an article on ‘those that earn the most in your neighbourhood’ on the basis of information taken from public registers), he can then get further information from registers and other public documents that authorities hold. The discomfort and the breach of integrity can also involve ordinary activities such as for example applying for a job. The citizen must give his person number which implies that it can be harder for old and young individuals to get a job. This kind of discrimination is supported by the legal system and it can easily take place and have severe consequences for individuals.38 He might not get the job he needs due to his age that is pointed out in his person number. 4. Possibilities to appeal and other remedies An individual cannot refuse registration. He also has no say on public access to such documents. The authority shall without asking him (referred to as A.A.) take the decision concerning secrecy or public access when someone else (referred to as B.B) asks for documents on A.A.. The person who asks for the information B.B. can appeal a denial but the individual concerned A.A. cannot appeal a decision to hand the document over to B.B. The person (A.A.) whose personal information is given to B.B. can take the case to a prosecutor who might prosecute the official that handed over the information to B.B. (he will only do so do so if it involves breach of secrecy). It is possible for A.A. to ask for 37

Skyddslagen (Protection law) (2010:305) 4 § 5. and the Public Access to Information and Secrecy Act 18 chapter 8§.

38

There is a huge difference to how similar situations in the USA are dealt with. In the USA it is forbidden to ask for someone´s date of birth in connection to employment.

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compensation from the state or the municipality if protected information has been handed over to B.B. The legal chancellor can decide on compensation and it is also possible to go to court with such an issue. A note of secrecy is not a decision. The decision on whether secrecy applies is made when someone asks for information. A denial of a note of secrecy cannot be appealed.39 A decision that the person shall still have his old address kvarskrivning when he moves to another place is taken by the tax authority. A denial of such a decision cannot be appealed. If the National Police Board does not to apply to the county court of Stockholm for fictitious person information, including a new name etc. this cannot be appealed by the person in question. As regards individual citizens it can thus be difficult to react to a denial of protection. The legislation on particular data on a person gives some protection though. It is possible to get compensation if the authority makes a mistake in the registration. 40 There is a special authority the Data inspectorate that supervises the protection. The Data Inspection Board’s task is to protect the individual’s privacy in the information society without unnecessarily preventing or complicating the use of new technology. The Board works to prevent encroachment upon privacy through information and by issuing directives and codes of statutes. The Board also handles complaints and carries out inspections. The board has however no duty to give decisions in relation to individuals and the individual cannot apply for anything at the data inspectorate. 41



5 Concluding Remarks

How does the tradition of openness in the Swedish democracy correspond with integrity as regards information that the state has on individuals? The fundamental question with regard to our national traditions of registration and public access concerns the concept of the state and its relation to its citizens. When secrecy according to the Public Access to Information and Secrecy Act has been broken a citizen can take that case to a prosecutor and a penal law case can start against the official that gave the secret information to somebody. It is however not possible for an individual to take any legal mea39

Cf. Skatteverkets skrivelse 041222 Dnr 130 735850-04/111 and Supreme Administrative Court Mål nr 1039-05.

40 41

Personuppgiftslagen (Law on personal particular data) 1998:204 § 48.

The Board supervises that authorities, companies, organizations and individuals follow: the Personal Data Act (1998), the Data Act (1973), the Debt Recovery Act (1974) and the Credit Information Act (1973).

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sures against registration and public access regarding information on him. 42 He cannot oppose to registration or to public access. He cannot appeal a decision of registration or public access nor is it possible for him to appeal a denial of secrecy as regards secrecy notes, kvarskrivning or fictitious person information. He cannot oppose to or appeal that electronic registers with information on him are run together. He cannot oppose to or appeal that secret information on him is given to other authorities (that have ‘direct access’) when electronic registers are run together. Therefore these issues regarding integrity will not reach Swedish courts irrespective of the amendment to the constitution in 2011. Legal traditions as the two that this paper deals with are models for how to handle the state. However the traditions of registration and access to documents are also two legal traditions that pin-points integrity as a problem. The two traditions constitute important basis to our state, its welfare system, its tax system and its democracy. The legislator has however been negligent to aspects of integrity and the constitution has not shown the direction in such issues. The courts have had weak constitutional positions as regards integrity issues. Some constitutional changes have taken place from 2011 (stipulation on integrity and abandon of the prerequisite ‘obvious’). The result remains to be seen. It is not possible for the individual concerned to take a case concerning registration or access to court. Reasoning in such issues has therefore not been enough developed neither by the Swedish legislator nor by the Swedish courts. Do the traditions present an obstacle to the observance of the common principle and to European legal cooperation? A Swedish former judge in the European Court of Human Rights has stressed that consideration must be taken to the fact that there are different points of view in different countries and that each country under the Convention must have freedom in such issues. 43 According to this statement there can be different ways of applying the convention depending on traditions and there is no European standard. It also gives an indication that national traditions might be more important than the common principle.

42

Unless the information in the register has faults and involves a violation. In such a case it is possible to have compensation. Cf. JK 2012-09-07 4955-12-42.

43

Hans Danelius (n 7)367 f.

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Bibliography Allgårdh/Norberg, EU och EG-rätten, 4:e upplagan, 99. Hans Danelius, Mänskliga rättigheter i europeisk praxis (Norstedts Juridik 2012), 4 ed, 351, 367. Edelstam, Gunilla, ‘Legitimacy Issues in Administrative law’, in Matthias Ruffert (ed.) Legitimacy in European Administrative law (Europa Law Publishing, 2011) 118 f. Edelstam, Gunilla, Wissenschaft von Verwaltungsrecht: Schweden; in A. von S. Bogdandy/S. Cassese/P. Huber (eds) Handbuch Ius Publicum Europaeum Band IV 277ff. Petrén, Gustaf, Tryckfrihetslagstiftningen (6th ed. Svenska tidningsutgivareföreningens skriftserie Nr 1 1978). Sterzel, Fredrik, ‘Rättsstaten i 1974 års RF’ in Fredrik Sterzel (ed.) Rättsstaten – rätt politik och moral (ISBN: 91-8758-212-0 Series: Legal Fund 31 Rattsfondens Skriftserie 1996) 110. No author mentioned: ’Stulna identiteter ökar dramatiskt (Increase of stolen identities)’, Integritet i fokus (Paper from the Datainspectorate) 2/2012 5 f. www.skatteverket.se, Den svenska folkbokföringens historia under tre sekler (Swedish national registration during three centuries). Reg. prop. 2007/08:160. Utökat elektroniskt informationsutbyte (Increased exchange of electronic information). SOU 1994:44 Folkbokföringsuppgifterna i samhället (National Registration Tasks in Society). SOU 2000:17 Folkbokföringen efter stat- kyrkarefomen mm (National Registration after the separation of the Church from the State). SOU 2007:22 Skyddet för den personliga integriteten (Protection of Integrity). SOU 2009:75 Folkbokföringen (National Registration). Swedish statues in translation – including the constitution – can be found on www.regeringen.se.

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Ius Publicum Europaeum: Divergent National Traditions or Common Legal Patrimony? Giacinto della Cananea

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ius publicum europaeum: divergent national traditions or common legal patrimony

1 Commonality of Private Law v. Nationality of Public Law?

When considering the burgeoning literature about law in the context of European integration, it soon becomes evident that the relationship between national legal traditions and the possibilities of convergence are controversial. There are several strands of theory underlying this problematic relationship. It is helpful to summarise some of them briefly, before considering the underlying issues more analytically. There is, first, a widespread strand of theory which holds that not only within the European Community and now the European Union (EU) a new system of public law had developed, with its own sources and principles, but that such system is increasingly influencing the development of public law within national legal orders, which tend to converge particularly in several fields of administrative law.1 A variant of this strand of theory argues that through the Union’s legislative acts and judicial decisions the public law systems of some Member States are influencing others, due either to their intrinsic qualities or to economic and political factors.2 While some observers claim that this is an unwelcome change, because diversity and pluralism of legal traditions are to be preferred3, others contest that such a change is occurring, holding that national legal systems are not converging. 4 There is another (perhaps diminishingly important) strand of theory, which draws a distinction between private law and public law, holding that historically only the former has provided a common legal framework to European countries. In the early years of the contemporary epoch, broadly under the Restoration, this strand of theory was expressed with clarity and authority by one of the leading figures of European legal scholarship, Freidrich Carl von Savigny. Soon after *

This is a revised version of the paper presented at the Dornburg seminar. I’m very grateful to all participants, particularly to Paul Craig, Matthias Ruffert and Ebherard Schmidt-Aßmann, for their helpful comments.

1

See J. Schwarze (ed), Administrative Law under European Influence: On the Convergence of European Laws of the EU Member States (Sweet & Maxwell/Nomos, 1986) and S. Cassese, ‘Il problema della convergenza dei diritti amministrativi. Verso un modello amministrativo europeo’, Rivista trimestrale di diritto e procedura civile (1992) 409.

2

See M. Ruffert, ‘The Transformation of Administrative Law as a Transnational Methodological Project’, in M. Ruffert (ed), The Transformation of Administrative Law in Europe (European Law Publishing, 2007) 3.

3

For this thesis, see C. Harlow, ‘Voices of Difference in a Plural Community’, in P. Beaumont, C. Lyons and N. Walker (ed), Convergence and Divergence in European Public Law (Hart Publishing, 2002) 199.

4

See P. Legrand, ‘European Legal Systems Are Not Converging’, 45 Int’l & Comp. L.Q. 52 (1996). But see also C. Harlow & R. Rawlings, ‘National Administrative Procedures in a European Perspective: Pathways to a Slow Convergence’, 2 Italian Journal of Public Law 216 (2010) (pointing out that some kinds of convergence have occurred).

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the fall of the Napoleonic Empire, Savigny successfully opposed, with a famous pamphlet (5), to the idea proposed by Thibaut that Germany should enact a civil code based on the French model, that is to say the Code civil. What is perhaps less known, but is more relevant for present purposes, is Savigny’s view concerning public law. In his major scholarly work, where he showed the importance of the Reception of Roman law, he affirmed that only Roman private law had became part, in its totality, of the German legal order.6 By contrast, Roman public law was regarded as alien to the common legal patrimony of European peoples. Whether and to what extent private law really has a common tradition is an interesting issue and probably a controversial one. The least that can be said is that the common law has not simply a variety of distinctive features, concerning legal sources and principles, but is the product of a different history and culture.7 In a broader perspective, a qualified observer such as Montesquieu would have hardly subscribed to Savigny’s statement without at least casting some doubts. When, at the beginning of his famous essay on the ‘spirit of the laws’, Montesquieu underlined the importance of climate and geography as causes of the ‘infinite diversité de lois et de moeurs’, he was certainly not only referring to criminal legislations.8 However, my intention is neither to criticize the widespread opinion concerning the common roots of European systems of private law nor to contest that, until the French Revolution, private law was regarded as the law par excellence.9 It is, rather, to critically consider the second part of the thesis, that which denies the existence of common roots in the field of public law. It ought to be stated since the outset, however, that I am not suggesting that the public law systems of the Member States of the EU must be considered as being wholly, or mainly, characterized by common constitutional traditions. I focus only on what is both more interesting and debated, that is to say whether common constitutional traditions exist and, if so, whether they are only relatively recent, as opposed to those of private law. I shall make my argument in two ways. First, I will consider some moments in the history of ideas. Second, I will analyse some legal realities, as distinct from theories. The underlying assumption is that it is 5

F.C. Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Mohr und Zimmer, 1817).

6 7

F.C. Savigny, System des Heutigen Romisches Recht I (Deit und Camp 1840) § 1, n. 3.

For the thesis that there are two distinct traditions or legal families, see R. David, Les grands systèmes de droit (4th edn Dalloz 1985) and J. Merryman, The Civil Law Tradition An Introduction to the Legal Systems of Europe and Latin America (2rg Edition Stanford University Press 1969). But see also J.S. Bell, ‘Comparative Administrative Law’, in M. Reimann & R. Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press, 2006) 1266 (convincingly observing that in administrative law ‘the grouping of legal families is different from that of private law’).

8

Montesquieu, De l’esprit des lois (Geneve Barillot 1748) Préface and livre XVII, ch. I (‘la servitude politique ne dépend pas moins de la nature du climat, que la civile’).

9

For this remark, see E. Garcia de Enterria, La lengua de los derechos. La formaciòn del Derecho Publico Europeo tras la Revoluciòn Francesa (Alianza Editorial 1994) 32.

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important to give a closer look to the intellectual sources of the approach criticized, but that its validity must be assessed mainly in the light of facts. Otherwise, a risk arises, as observed by Hans Kelsen: that of carrying out an analysis based only on logical and epistemological remarks concerning legal literature, without an elaboration of materials.10



2 The Frailty of the Conception of Public Law as a National Enclave



2.1 Savigny’s Thesis of Roman Private Law as the Only Common Legal Framework in Europe

At the roots of the view according to which the public law of each state should be regarded as a national enclave there is an important theory about the law tout court. As observed earlier, in contrast with his contemporaries and with earlier theories that emphasized the correlation between law and universal truths or with religious precepts, Savigny argued that the law is a social artifact. Hence the claim that all laws, as human products, must be seen as reflecting the spirit (geist) of the people (volk) from which they sprung. Accordingly, laws are inevitably related to the customs, beliefs and values of a particular people. This approach had undoubtedly the merit of warning against the naïve belief that the legislators may easily provide the solutions to problems by general rules not having grown out of national traditions, as happened in Germany during the Napoleonic period. However, it was not immune from weaknesses. One, to which I will return in the next paragraph, is the overemphasis on the full autonomy of the State, of each State, in regulating its own sphere. Another, of more immediate interest, is Savigny’s clear-cut distinction between private law and public law. While the former was considered as a systematic product, corresponding to the needs of economy and society, the latter was considered as much less systematic, due to the influence of politics. It is in this context that we should read Savigny’s assertion that only Roman private law had become part of German law, in contrast with Roman public law.11 10

See H. Kelsen, ‘Bermerkungen zu der Doktor-These ‘Notions et Droit sur le développement du droit international comme développement de l’Etat‘par Umberto Campagnolo (1937)’, in M.G. Losano (ed), Diritto internazionale e Stato sovrano (Guiffre 1999) 272.

11

F.C. Savigny, System des Heutigen Romisches Recht, cit. at 6, § 1, n. 3, 2 (interestingly, Savigny referred to private law, considered as jus civile or jurisprudentia properly intended, pointed out that only private law, in this sense, was part of ‘our present law’ and conceded that the same was true for criminal law, but to a much lesser extent). See also R. Orestano, Introduzione allo studio storico del diritto romano (UTET, 1963) 222 (pointing out that, for Savigny, the law conceived as a living organism was only private law) H.E. Yntema, ‘Roman law and its influence on Western civilization’, 35 Cornell L.Q. 78 (1949-1950) (arguing that the difference between Roman private law and public law depended on the fact that the latter was less systematic, like that of England), R. Michaels, Globalizing Savigny? The State in Savigny’s Private

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This was a ‘surprising affirmation’, according to Michael Stollais, the author of a ground-breaking history of public law in Germany.12 Of course, not all Roman public law could be transposed to German legal systems. However, several important principles were accepted by them. Moreover, whatever the correctness of Savigny’s statement, it regarded only the part of public law 13 that was most developed in his epoch, that is to say constitutional law. On the one hand, that public law was that of the monarchy, while the French Revolution had introduced a new lexical and conceptual universe.14 On the other hand, it is the growth of another branch of public law, administrative law, that has characterized all European countries since the end of the nineteenth century. All this is recognized by those who affirm that ‘private law is the only field of law with a common tradition’ older in the past two centuries.15 This point of view, in addition to confirming the common wisdom that private law has a thousand year common tradition also implicitly admits the existence of a common tradition in the field of public law, at least in the past two centuries, whilst confirming Savigny’s thesis as far as the previous centuries are concerned.16 Though this temporal distinction has by no means a marginal importance, both variants have a common basis, that is to say that before 1815 the public law of each State was a sort of national enclave. This is in evident contrast with what earlier writers had observed. Consider, for instance, Leibniz’s famous assertion of the existence of a ius publicum International Law and the Challenges of Europeanization and Globalization, Duke Law School Faculty Paper Series n. 15 (2005) 11-12 (pointing out that, for Savigny, public law was ‘political and thus unscientific’), while according to R.C. Van Caenegem, Judges, Legislators, and Professors. Chapters in European Legal History (Cambridge University Press 1987) (Roman public law was authoritarian and centralistic, in contrast with the common law). 12 13

M. Stollais, Geschichte des Offentlichen Rechts in Deutschland, I, 1600-1800 (Beck 1996) 24.

It is helpful to remember that the distinction between private law and public law was clear to Roman lawyers, especially to Ulpian, the author of the famous maxim ‘Huius studii duae sunt positiones, publicum et privatum. Publicum ius est quod ad statum rei publicae spectat, privatum quod ad singulorum utilitatem’ (D. 1.1.1,2).

14

See E. Garcia de Enterria, La lengua de los derechos (n 9) 32, 36 and 80 (where he pointed out the emergence of a ‘nuevo derecho publico post-revolucionario’). A partially different explanation is that proposed by J. Habermas, Between Facts and Norms (Polity Press 1997; English translation of Faktizität und Geltung, Suhrkamp, 1996 ) that is to say the divergence between German private law, that during that century protected economy and society from the intrusion of the State, and the public law of an authoritarian State.

15

See F. Brandsma, ‘Dutch National Report’, quoted by H.P. Glenn, ‘The National Legal Tradition’, 11 Electronic Journal of Comparative Law 2 (2007) available at http://www.ejel.org. See also G. Bermann, ‘Comparative Law and Administrative Law’, in L’Etat de droit (Dalloz 1996) 30 (holding that the relative lack of comparative studies in the field of administrative law could be explained by its non-mainstream position and by the absence of universality in legal rules).

16

See Glenn, ‘The National Legal Tradition’ (n 15) 2.

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commune in Europe, characterized by specific principles and doctrines.17 This assertion must be read in the context of the epoch which preceded and accompanied the birth of the modern State, that of jus commune. In that epoch the law was ‘transnational by definition’18 and reported judicial opinions were regularly consulted by anyone seeking to ascertain the principles and rules that could be applied everywhere.19 We may wonder, therefore, whether the absence of a clear-cut distinction between private law and public law in Medieval Europe raises doubts with regard to the assertion that, unlike public law, private law is characterized by a certain degree of commonality.20 That public law, too, could have common basis was excluded on the philosophical level by Hegel and since his work has had a profound impact on continental thought about public law, we should now consider it.



2.2 Hegel and Public Law as the Product of the State

This is not obviously the place to reconsider the Hegelian legacy on public law doctrines. The focus will be, rather, on two specific elements of his doctrine of the State, presented in the context of Hegel’s exposition of legal philosophy.21 In order to situate his views, it is helpful to begin with Hegel’s assertion that there exist two provinces of public law. While one is the State’s internal public law, the other is the State’s external law, which regulates the State in establish17

G.F. von Leibniz, Nova Methodus Discendae Docendaque Juris (1688) § 39 (distinguishing public law arguments from those of private law, as well as of history and philosophy). A distinct concept, that of jus publicum europaeum, has been used by Carl Schmitt, in his Nomos der Erde in Volkerrecht des Jus Publicum Europeum (Duncker & Humblot 1946). It designates the principles governing the relationship between sovereign entities, mainly if not only European, until 1914. Interestingly, Schmitt pointed out that Savigny had built his system on the basis on an undeniable European community, but saw defined him as the founder of the ‘so-called international private law’. For a similar remark, see R. Michaels, Globalizing Savigny? The State in Savigny’s Private International Law and the Challenges of Europeanization and Globalization, (n 11).

18

See R.C. van Caenegem, European Law in the Past and the Future. Unity and Diversity over Two Millennia (Cambridge University Press 2002) 13 (pointing out that the ius commune developed in the faculties of law and was thus a common ‘learned law’ that consisted of two theoretically well distinct, but in practice interconnected elements: the canon law of the Catholic Church and the civil law of Justinian’s Corpus Juris Civilis). See also A.M. Hespanha, Introdução à História do Direito Europeu (1999, Italian translation Introduzione alla storia del diritto europeo (Il Mulino 1999)) (observing that the jus commune was not only a subsidiary law, but a ‘model’).

19

See G. Gorla, ‘Il ricorso alla legge di un ‘luogo vicino’ nel diritto comune europeo’, (1973) in Diritto comune e diritto comparato (Giuffre 1981) 617 and R.B. Schlesinger, ‘The Past and Future of Comparative Law’, 43 A. J. Comp. L. 477, 479 (1995).

20 21

See Glenn, ‘The National Legal Tradition’ (n 15) 2.

G.F. Hegel, Grundlinien der Philosophie des Rechts (Berlin, 1821) Werke, VII (1986) [English translation by T.M. Knox Hegel’s Philosophy of Right (1942)].

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ing relationships with other States. Due to their different foundations, Hegel argued, such provinces of public law are not only independent, but reciprocally isolated. Every individual State has its own constitution (Verfassung), and domestic legal system (inneres Staatsrecht).22 The other important element of the Hegelian doctrine of the State is the concept of State (die Idee der Staats). Without understanding his method, which proceeds from abstract concepts to more concrete inferences, it is difficult to appreciate the implications of this doctrine. Such implications include the conception of each State as a totality which satisfies itself and thus has absolute power over individuals (absolute Macht)23, the resulting sacralisation of the State24, and the assertion that national legislations are inevitably dominated by particularities, because ‘the reality of a constitution’ is determined by the ‘spirit of a people’.25 The least that can be said is that such a correlation between a volksgeist and national legislation is highly problematic. As Hespanha has acutely observed, too often what an observer believes to be the product of a volksgeist is but a product of his own pre-concepts.26 Put differently, it is one thing to emphasize the particular features of a certain national legislation, but it is another to assume that each legal order is characterized only by particularities. This should not be taken as an axiom, or an article of faith, in view of the sacralisation of the State. It would be, of course, equally flawed to assume that, since the idea of State is an abstract one, the features of all civilized States must always be the same.27 That said, from the fact that we may not assume (ex ante) that national legal orders follow all the same principles it does not follow necessarily that some common 22

See G.F. Hegel, Grundlinien (n 21) § 259. This dichotomy between the two great provinces of public law lies at the roots of the positivist paradigm of international law, at least in the school of thought of which Triepel was one of the leading figures: see H. Triepel, Volkerrecht und Landesrecht (Leipzig, C.L. Hirschfeld 1899). But see also C. Schmitt, Nomos der Erde in Volkerrecht des Jus Publicum Europeum (n 17) (arguing that, beyond Triepel’s differentiation of spheres, there was the same kind of standard, the liberal one).

23

Interestingly, Hegel criticized the idea of dividing powers: Grundlinien, (n 21) § 272. See F.A. von Hayek, Rules and Order (Routledge 1973) ch. VI (criticising the mystic conception of Herrschaft, i.e. power, in German doctrines of public law).

24

See S. Romano ‘Oltre lo Stato’ (1911) in S. Romano Scritti minori (Giuffrè 1954) 419 and L. Duguit, ‘The law and the state: French and German doctrines’, 31 Harv. L. R. 1, 5 (1971) (criticizing Hegel authoritarianism and its ‘eulogy’ of Prussia). But see also O. Brino, ‘L’interpretazione liberale di Hegel e il diritto statuale della . Da Joachim Ritter a Ernest-Wolfgang Bockenforde’, Filosofia politica (2012) 267 (for an attempt to renew the liberal interpretation of Hegelian doctrines).

25

Hegel, Grundlinien, (n 21) § 274. See also C. Schmitt, Nomos der Erde in Volkerrecht des Jus Publicum Europeum, (n 17) II.2 (pointing out Hegel’s view of the State as the realm of ethics) and R. Orestano, Introduzione allo studio storico del diritto romano, (n 11) 211 (pointing out the different conception of volksgeist in Savigny and Hegel).

26 27

Hespanha, Introdução à História do Direito Europeu, (n 18) 12.

See V.E. Orlando, Principii di diritto costituzionale (Barbera 3rd edn 1894).

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principles may not be identified (ex post). Hence the need of an accurate analysis, based on comparison. Among the great early writers, it was Alexis de Tocqueville who did so in his later work L’ancien régime et la Révolution. He drew a distinction between the administrative and the political constitution, arguing that administrative law is not a product of the French Revolution, but rather of its predecessor, the absolute State of the eighteenth century.28 He showed admirably how the concept of puissance publique did not only grow in the edicts of the French Kings. It also grew in the decrees of their administrators and in their acceptance by social forces, including the aristocracy and town councils. Tocqueville further argued that this old administrative constitution, which preceded the first democratic developments, was not a uniquely French feature. Quite the contrary, it was also found in other major countries, such as Germany and the United Kingdom.29 Although Tocqueville’s findings are not uncontroversial in recent literature30, it is from his framework that we may identify a line of reasoning that is capable of shedding some light on the issues raised earlier and an adequate methodology, which devotes attention to legal and political realities. This will allow us to try to see if there are common traditions that are legally relevant, that is to say practices characterized by longevity (diuturnitas) and necessity (opinio juris ac necessitatis).



2.3 Dicey and the Antithesis between National Constitutional Traditions: Strength and Weaknesses

Before considering whether such common traditions exist, it is helpful to take the negative answer into account, which is associated with an over-emphasis on national particularities in the field of public law, that of Albert Venn Dicey, the eminent constitutionalist of Victorian England. In his major work, he recognized the importance of the comparative method for the study of public law. However, he used it instrumentally, to support his claim that the English Constitution was not only different from those of continental countries, but also better, thanks to the virtues of the rule of law. This approach emerges clearly in the following two sentences: 28

A. de Tocqueville, L’Ancien régime et la Révolution (1856) livre III, ch. 7 (comment une grande révolution administrative avait précédé la révolution politique, et des conséquences que cela eut).

29

See A. de Tocqueville, L’Ancien régime et la Révolution, cit. at 28, livre I, ch. 4 ( j’ai eu l’occasion d’étudier les institutions politiques du moyen age en France, en Angleterre et en Allemagne et j’était rempli d’étonnement en voyant… la prodigieuse similitude qui se rencontre entre toutes ces lois). On the importance of Tocqueville’s use of comparison, see R. Boudon, Tocqueville aujourd’hui (O. Jacob 2005) ch. 3. See also D. Lochak, La justice administrative (Montchrestien 1994) 9-10 (pointing out the strong legacy of the Ancien régime).

30

Recent historical research emphasizes the development of administrative law during the XIX century, particularly F. Burdeau, Histoire du droit administrative (de la Révolution au début des années 1970) (PUF 1970) 38 and L. Mannori & B. Sordi, Storia del diritto amministrativo (Laterza 2001) 6.

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The true nature of the rule of law as it exists in England will be illustrated by contrast with the idea of droit administratif,... which prevails in many continental countries.31 In many continental countries, and notably in France, there exists a scheme of administrative law – known to Frenchmen as droit administratif – which rests on ideas foreign to the fundamental assumptions of our English common law, and especially to that we have termed the rule of law. This opposition is specially apparent in the protection given in foreign countries to servants of the State.32

It is this combination of values and method that makes Dicey’s work so interesting for our purposes. Dicey is important precisely because he so clearly expressed the values that inspired the English Constitution, of which he did not simply describe the basic principles. He formulated them. He is important, moreover, for his method, which was both positivist and comparatist at the same time. In this latter respect, he used the method of antithesis, in order to affirm that a divide existed between England, which was subject to the rule of law, and those continental countries that were instead subject to droit administratif. This method, which had famous forerunners, including Alexis de Tocqueville, has several merits.33 It can be very helpful at a descriptive level, because it permits theorists to use a term to shed some light on the other. Consider, for example, the antithesis between public law and private law under the traditional maxim ‘publicum jus est quod statum rei publicam spectat, privatum quod ad singolorum utilitatem.34 At an axiological level, the method of antithesis reveals clearly the value judgments, positive or negative, on which scholarly opinions about one or both terms of the relationship are founded, for example in the dichotomy between democracy and dictatorship. At the level of history, or more precisely of philosophy of history, it is possible to individuate different epochs, characterized by a dominant set of doctrines, for example liberalism or collectivism. This explains the fortune of this method, and particularly of Dicey’s dichotomy between the English legal system of public law and those of continental countries. Many decades later, for example, the French comparatist David repeated that in England the holders of public offices were subject to common law and ordinary courts, in order to avoid immunities.35 More recently, Massimo Severo Giannini, perhaps the most influential Italian administrative lawyer of the twentieth century, affirmed that there were countries with admin31

A.V. Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan 1st ed. 1885; 10th ed. 1959; hereinafter ‘The Law of the Constitution’) 204.

32 33

Dicey, Law of the Constitution (n 31) 205.

See Bobbio’s entries Democrazia / dittatura, Pubblico / privato, Società civile / Stato in Enciclopedia Einaudi (Einadi 1978-1981).

34

See G. Napolitano, Pubblico e private nel diritto amministrativo (Giuffre 2003) (criticizing the divide between private law and public law). But see also M. Loughlin, The Idea of Public Law (Oxford University Press 2004) (for the thesis that public law must be regarded as an autonomous discipline).

35

R. David, Le droit anglais (PUF 1965) 92.

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istrative law and countries where public administrations were subject to a body of principles of rules essentially common to that regulating citizens.36 However, Dicey’s use of the method of antithesis was heavily criticized by contemporaries, such as the American lawyer Frank Goodnow and the French lawyer Maurice Hauriou. While the latter reacted vehemently to what he regarded as an incorrect and biased description of French institutions and law 37, the former made several punctual critical remarks. First, he observed that Dicey ‘did not mean … to deny the existence of an administrative law in the true continental sense, but simply the existence of his conception of droit administratif’.38 Second, he argued that the ‘general failure in England and the United States to recognize an administrative law is really due, not to the non-existence in these countries of the law, but, rather, to the well-known failure of English law writers to classify the law’.39 Third, he criticised the ‘failure on the part of … judges to distinguish public from private relations has been the application to public relations of the principles of private law. This is most unfortunate’, 40 in the light of the ‘great awakening’ of the interest in administrative issues that characterized the whole of Europe. Following this line of reasoning, in the last three decades other commentators have observed that Dicey did not simply observe the changes occurring in government and law during his life, but somehow tried to give meaning to such changes within the frame of the English Constitution that he described for the first time in 1881. However, that Constitution gradually changed. Political and economic changes caused the expansion of the functions of government, by way of legislation increasingly attentive to new social needs. New administrative bodies were set up, altering the simple structures of governance that characterized Victorian England. Drawing on such studies, the question thus arises whether national traditions really were as distant as Dicey deemed them to be. In other words, we should ask ourselves whether at another level, that of legal realities, they were less distant than it appeared. Interestingly, Dicey himself, soon after exposing the antithesis between the public law system of France and England, placed it in a broader European perspective and thus attenuated its importance. He observed that: ‘The administrative law of France comes nearer than does the Verwaltungsrecht of Germany to the rule-of-law as understood by Englishmen. Here, as elsewhere, it 36 37

See Giannini, Istituzioni di diritto amministrativo (Giufrre 1981) 8-9.

For a recent reappraisal, S. Cassese, La formation du droit administratif: France et Royaume Uni (Montchrestien 1996); La ricezione di Dicey in Italia e in Francia. Contributo allo studio del mito dell’amministrazione senza diritto amministrativo, in Materiali per una storia della cultura giuridica, 1995, 107.

38

F. Goodnow, Comparative Administrative Law. An analysis of the administrative systems, national and local, of the United States, England, France and Germany (Putnam 1893) 6.

39

Ibid, 7.

40

Ibid, 13.

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is the similarity as much as the dissimilarity between England and France which prompts comparison’. 41

At least three elements of this remark should be considered. First of all, the fact that Dicey gave weight to differences does not exclude that they had a relative importance. In other words, their weight depended on both terms of a comparison. Second, and more important for present purposes, Dicey explicitly affirmed that both similarities and dissimilarities must be considered by comparative legal studies. The particularities of domestic legal orders must, therefore, be considered within a broader picture, that also shows the commonalities between such legal orders. Last but not least, whilst mentioning German administrative law, Dicey did not refer to any specific positive norm or judicial decision. He referred, rather, to Otto Mayer’s famous treatise of administrative law. 42 This confirms the attention that the leading public lawyers of that epoch reciprocally devoted to the others’ major works. However it also raises the question of the extent to which the narratives elaborated by those scholars reflected reality. The founder of modern public law in Italy, Vittorio Emanuele Orlando, put the position neatly when he observed, in the first pages of his treatise on principles of constitutional law, the differences between national legal writings, while at the same time pointing out that, notwithstanding the differences between national laws, their principles were largely the same. 43



3 From Doctrines to Legal Realities



3.1 National Norms and Mentalités: Separation of Powers

It is relatively easy to observe that, although the public law systems of the Member States of the EU are fundamentally different in many respects, including the type of constitution and the institutional features of the political system, they have some key concepts in common. As they operate today, so the argument goes, there is common commitment to political democracy, the rule of law or Rechtsstaat, and fundamental rights. But their observation does not bring the analysis much further than a reading of Article 2 of the Treaty of 41

Dicey, The Law of the Constitution (n 31) 328, fn. 3.

42

O. Mayer, Deutsches Verwaltungsrecht (Duncker & Humbold 1896) translated into French Le droit administratif allemand (Giard et Brière 1904).

43

V.E. Orlando, Principii di diritto costituzionale (3rd edn Barbèra 1894) (‘le diversità tra i vari diritti nazionali … non tolgono che i principi siano i medesimi’). For a similar remark, see M. Fromont, Droit administratif des Pays européens (PUF 2006) 11 (holding that continental countries were deeply influenced by the Napoleonic model). See also J.S. Bell, Comparative Administrative Law (n 7) 1268 (observing that ‘leading administrative law jurists in liberal democracies have always been aware of development … Often this has served as a benchmark to assess the quality of national administrative justice and to raise questions about areas that need reform’).

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the European Union (TEU), which mentions the ‘values’ upon which the EU is founded (interestingly, while the second indent of TEU’s Preamble qualifies them as ‘values’, the fourth indent considers them as ‘principles’). Of course the significance of such values must not be neglected. However, referring to values has more than one drawback. Values are conceived in an absolute manner and at a high level of abstraction. Disputes about values thus involve different visions of the world, thus making interest-balancing very hard or impossible. By contrast, legal principles, especially general principles of law operate at a lower level of abstraction, though providing us with standards of conduct. 44 It is, therefore, more appropriate to focus on those legal principles, broadly intended, that may be regarded as traditions. 45 In this respect, especially as we focus on structural elements of national systems of public law, it does not suffice to look for external or merely linguistic similarities that would permit concluding that parallel realities and corresponding thoughts can be identified in such systems. This necessity is stressed by those comparative lawyers who argue that, if we really want to understand whether modern legal orders are characterized by common developments, we cannot limit our analysis to political programs of reform and positive norms. We should dig into the deep structures of our systems of public law. Only at that deeper level do the fundamental beliefs and concepts, in a single word the mentalités, that characterize each national system clearly emerge enough. 46 In this sense, an analysis of legal realities is necessarily an empirical exercise, the objects of which are not only norms, but also practices. 47 It is also an historical and comparative exercise. History also has much to teach ‘positive’ lawyers, because it allows them to understand if and how legal realities have changed over time. 48 It also implies comparison to some extent 49, thus permitting theories to be revised that over-emphasize the developments of a specific legal and political system, while neglecting those of others. Both history and comparison are helpful, in particular, in examining a doctrine 44

For this thesis, see R. Dworkin, Taking Rights Seriously (Gerald Duckworth & Co. Ltd. 1977) 22 and D. Oliver, Common Values and the Public-Private Divide (Butterworths 1996) 58.

45

A different concept, that of ‘invariables’, has been used by C. Wieacker, ‘Foundations of European Legal Culture’, 38 Am. J. Comp. L. 19 (1990) (with regard to other constants of European legal culture, including ‘its personalism, its legalism, and its intellectualism’).

46

P. Legrand, ‘National Legal Systems Are Not Converging’, (n 4) See also ibid. Droit comparé (PUF 1999) 15 (arguing that every interpretation is an attempt to give sense to the phenomena examined).

47

The importance of practice is pointed out by M. Adams & J. Bomhoff, ‘Comparing law: practice and theory’, in M. Adams & J. Bomhoff (eds) Practice and Theory in Comparative Law (Cambridge University Press 2012) 4-5.

48

See A.M. Hespanha, Introdução à História do Direito Europeu, (n 18) 11 (observing that history of law has a legitimizing function).

49

See F.W. Maitland, ‘Why the History of English Law is not Written’, in The Collected Papers of F.W. Maitland (Cambridge, 1911) I, 488.

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which has played a huge role in the formation of national systems of public law, the doctrine of separation of powers. This doctrine was developed by English thinkers, such as Locke and Bolingbroke. It was John Locke, in particular, who explained why in a well-governed commonwealth the legislative and executive powers must be distinct and attributed to different institutions, in order to avoid the risk of arbitrariness.50 The same line of reasoning was followed by Montesquieu, who was in search of a system that could ensure a better safeguard against abuses of power. He found that the English system achieved this goal, thanks to the separation between the executive and judicial branches of government. He then theorized the necessary distinction between those branches and the legislative one.51 A few years later, his distinction was deemed as necessary on both sides of the Atlantic. Historically, the US Constitution was the first to lay down a strict and formalized separation of powers between the three branches of government, which differed profoundly from those of the former ‘mother country’.52 Few years later, faithful to Montesquieu, Article 16 of the Declaration of the rights of men and the citizen (1789) affirmed that ‘a society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all’. This is perhaps the clearest and strongest assertion of the virtues of separation of powers, but it implies converting a principle into a deontological feature of a constitution. Whatever the soundness of that assertion, it was followed by many reformers in Europe, particularly by the authors of the Belgian Constitution of 1831. It was considered one of the most liberal of its epoch precisely the imposition of a rigorous system of separation of powers, which because of the set of limits to the powers of the monarch. Not only did it distinguish the legislative, executive and judicial powers, but it also assigned them to Parliament and the King (who had to proclaim and ratify legislation), the King and his ministers, and to the courts, respectively.53 Interestingly, the Belgian Constitution has been regarded as a clear example of cross-fertilization, because it was influenced by English and French constitutional documents and influenced other constitutional charters, such as the Statuto Albertino, conceded by the King of Sardinia in 1848. However, if we look more closely at the concrete working of constitutional arrangements, the real significance of the English model for these continental 50

See J. Locke, Second Treatise of Civil Government (1690) Chapter 10, §§ 143-144 (affirming that ‘because it may be too great a temptation to humane frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the Community, contrary to the end of Society and Government’; ‘And thus the Legislative and Executive Power come often to be separated’).

51

Montesquieu, De l’esprit des lois (1756) livre XI, chapitre VI (Flammarion 1991).

52 53

See M.J.C. Vile, Constitutionalism and the Separation of Powers (Clarendon 1967).

See the Belgian Constitution, Articles 36, 37, and 40.

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developments is questionable. From the earliest times and especially after the Glorious Revolution English constitutional law has not achieved a complete separation of powers in that sense. In fact it is possible to trace the fundamental doctrine of sovereignty of Parliament back to that period, which is not exclusively tied to the denial of power of the Crown to suspend the application of the laws or to derogate from them. This was not at all a hidden truth to the authors of the Federalist Papers. James Madison observed that ‘in the British Constitution the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other’.54 This was confirmed almost one century later by Walter Bagehot. In his analysis of the secrets of the English Constitution, Bagehot argued that the ‘efficient secret may be described as the close union, the nearly complete fusion, on the executive and legislative power’..55 Some years later, Dicey also argued that Montesquieu had misinterpreted the principles and the practice of the English Constitution and added that his doctrine had been further misunderstood in France. According to Dicey, Parliament’s ‘omnipotence’ implied that it had the ‘right to make or unmake any law whatever’ and no person or body was recognized by the law as having the ‘power to override or set aside the legislation’ passed by Parliament.56 With regard to France, he claimed that separation of powers merely implied that the government and its officials were ‘free from the jurisdiction of the ordinary courts’.57 Dicey’s approach is interesting for three reasons. First, he pointed out the importance of the courts, seen as a shield against abuses of power by government officers. In this respect, his view of the separation of powers must be considered in conjunction with his doctrine of the Rule of law. The latter implies, in particular, that all are subject to the ordinary law of the land and that remedies are available before ordinary courts. By contrast, in the French legal system separation of powers was intended as an insuperable obstacle to the jurisdiction of ordinary courts with regard to the exercise of discretionary powers by public authorities. Accordingly, not only do the remedies often differ from those available for disputes between citizens, but such remedies are in the hands of administrative courts, particularly of the Conseil d’Etat, which is very close to the heart of the executive branch. A second reason for interest in Dicey’s approach lies in the lack of distinction, in his account, between the French tradition and those of other continental .

54 55

J. Madison, A. Hamilton & J. Jay, The Federalist Papers (1788, Penguin, 1987) ch. XLVII.

See W. Bagehot, The English Constitution (1867) chapter I (Fontana 1963, ed by R. Crossman, 65).

56

See Dicey’s Introduction to The Law of the Constitution, (n 31) xxxiv-xxxv. But see also F. Goodnow, Comparative Administrative Law (n 38) vol. I.

57

Dicey, The Law of the Constitution, (n 31) 339. In an earlier chapter, Dicey pointed out that when Voltaire had left France he had passed out from a land of despotism to a land ruled by law: for further remarks, see J. Jowell, ‘The Rule of Law Today’, in J. Jowell & D. Oliver (eds), The Changing Constitution (Oxford University Press 3rd edn 1994) 58. But see also Hayek’s criticism to the fallacy of the unlimited powers of Parliament: The Political Order of a Free People (University of Chicago Press 1979) ch. 12.

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countries. Consider, again, Belgium, where ordinary courts had jurisdiction over disputes in which public authorities were involved. Consider also Italy, where soon after unification, the solution adopted in 1865 substantially coincided with that of Belgium, thus following the English model. The great early Italian writers, particularly Orlando, thought that the jurisdiction of the ordinary courts was a necessary consequence of separation of powers.58 However, after 1890 the French model was adopted, with the creation of a new section of the Council of State, with a competence to solve disputes between citizens and public administrations.59 A similar system was adopted in Germany, though with some important variations, including the default rule according to which ‘if not other jurisdiction has been established, recourse shall be in the ordinary courts’.60 Last but not least, the way in which separation of powers emerged in England produced a lack of the conditions necessary for the introduction of judicial review of legislation. Dicey himself noted that no court could question the exercise of the legislative power.61 Indeed, it was not the English, but the US institutional framework that gave rise to a system of judicial review of legislation that provides greater protection against the abuses of parliamentary majorities. Such system has been followed, with a variety of adjustments, by several European countries, including not only Germany and Italy, but also France, thus contributing to the rediscovery of the medieval concept of the iurisdictio as a shield for rights.62 Two preliminary conclusions follow from these observations. Mentalités matter and sometimes differ radically, because different conceptions of the State have taken hold, as a result of the different processes of genesis and evolution of the executive. It would be a gross mistake, therefore, to embark on an enquiry into the principles of public law taking for granted that such principles are substantially the same everywhere, even within a club of liberal democracies that promote market economy, such as the EU. However, it would equally be a 58

V.E. Orlando, Principii di diritto amministrativo (3rd edn Giuffre 1905) 18. On the key role played by Orlando, see S. Cassese, Cultura e politica del diritto amministrativo (Il Mulino 1971) French translation by M. Morabito, Culture et politique du droit administratif (Dalloz 2008). The importance of separation of powers goes well beyond the system of judicial review for those public scholars according to whom it explains the existence of administrative law: see Fleiner, Institutionen des Deutsches Verwaltungsrecht (8th Edn Scientia Verl. 1928) 35 and M.S. Giannini, Profili storici della scienza del diritto amministrativo (1940) Quaderni fiorentini per la storia del pensiero giuridico moderno (2002) 188.

59

For further remarks, see F.G. Scoca, Administrative Justice in Italy: Origins and Developments, 1 It. J. of Public. L. 121 (2009).

60 61

Basic Law for the Federal Republic of Germany, Article 22 (4).

Dicey, The Law of the Constitution, (n 31) xxxv. See also C. Harlow, ‘Una rassicurazione simbolica: il ruolo del controllo giurisdizionale in una democrazia liberale’, in M.P. Chiti (ed), Cittadino e potere in Inghilterra (Giuffre 1991) 202.

62

For this thesis, see C.H. McIlwain, Constitutionalism. Ancient and Modern (2nd ed, Cornell University Press 1947) chapter VI. For a comparison of European models, see A. Stone Sweet, Governing with Judges (Oxford University Press 2003).

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mistake to assume that traditions are inevitably static. Consider, for instance, the evolution of the Italian system of judicial review of administrative action in 1890. Consider also the introduction of judicial review of the constitutionality of legislation. Whatever its contingent political causes, practically all studies undertaken have shown not simply the superiority of this system, but also its adaptability to different institutional environments and its influence on such environments. More specifically, the German model of review of constitutionality has been followed by several countries in Europe and elsewhere.63 All this suggests that, despite the belief to the contrary, legal traditions are not immutable. Coherently with this, a dynamic vision of legal traditions, as opposed to a static one, will be adopted. It is interesting, as a first step, to focus on an element which Dicey included within the most striking differences between the English and French systems of public law, that is to say the non-contractual liability of public bodies.



3.2 A Parallel Development: From the Immunity to the Liability of Public Administrations

Dicey pointed out that ‘the opposition is specially apparent in the protection given in foreign countries to servants of the State who ... are guilty of acts which in themselves are wrongful or unlawful’. He continued by noting that ‘the extent of this protection has in France varied from time to time. It was once all but complete; it is now far less extensive than it was thirty years ago’. He clearly had in mind Tocqueville’s works when holding not only that ‘droit administratif ’ traced back to the ancien régime, of which, under the Empire, it had kept the main features, but that such features were influenced by a vision of the State that was alien to Englishmen (64). In this respect, there is a page of Tocqueville’s work that is particularly illuminating. Whilst describing the judiciary, he pointed out that in the U.S. every citizen has the right to bring an action against public officers. This, he added, does not weaken government. Quite the contrary, under the French Revolution a constitutional rule prohibited any action against civil servants other than ministers before ordinary courts, unless by virtue of a ruling of the Conseil d’Etat. He then noted that, to an American or English observer, this preliminary decision of an administrative court placed at the heart of the Kingdom inevitably appeared to be a tyrannical element of French public law.65 63

For this remark, see T. Koopmans, ‘The Birth of European Law at the Crossroads of Legal Traditions’, 39 Am. J. Comp. L. (1991) 493, 494.

64

See Tocqueville, De la Démocratie en Amérique, I, VI (1825) (Flammarion, 1978) (‘en France la constitution est également la première des lois, … mais … la raison ordinaire doit céder à la raison d’Etat’).

65

See Tocqueville, De la Démocratie en Amérique, I, VI (64) (‘la constitution de l’an VIII passa, mais non cet article qui resta après elle; et on l’oppose, chacque jour encore, aux justes reclamations des citoyens. J’ai souvent essayé de faire comprendre le sens de cet article 75 à des Americains où à des Anglais … mais ce qu’ils apercevait d’abord c’est que … il y avait une sorte de tyrannie à envoyer préliminairement devant [le Conseil

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Precisely for this reason, few years later the Belgian Constitution of 1831 laid down the opposite principle, establishing that no prior authorization was necessary for bringing an action against civil servant for facts falling within their sphere of competence. French public law changed, too, due to the principles laid down by the administrative courts, though they were distinct from those of the civil code, coherently with the landmark decision of the Tribunal de Conflits in Blanco.66 Since the beginning of the twentieth century, the transition from the immunity to the liability of public bodies was increasingly evident.67 However it was to Tocqueville’s description that Dicey referred when he argued that the salient features of French public law were the absence of legal responsibility, more precisely of liability, under the same principles and rules that governed the relationship between private individuals and, from the point of view of judicial remedies, the lack of jurisdiction of civil courts in favour of the administrative judge. This was particularly evident in the subjection of civil servants to ‘a whole body of special rights, privileges, or prerogatives against private citizens’, with the consequence that a citizen could not, in his relationship with the State, ‘stand on anything like the same footing on which he stands in dealings with his neighbour’.68 By contrast, he held, the system of public law existing in England was characterized not only by the absence of legal irresponsibility, that is to say immunity, but also by the application of the ordinary law of the land, by the ordinary courts, with the exclusion of any special judge. Dicey was certainly correct in pointing out that, as a matter of principle, if a public body acts ultra vires, the effects of its action give rise to liability in tort if a cause of action is established. In other words, as Paul Craig has recently observed, there was not, and there is not, any ‘general cloak of immunity’.69 However, first of all, it should be added that no general principle of damage existed. Secondly and consequently, a specific cause of action was necessary to seek redress before the courts.70 And, third and more importantly, as Craig points out, whilst during the eighteenth and early nineteenth century the courts d’Etat] tous les plaignants’). For further remarks, see C. Harlow, Una rassicurazione simbolica: il ruolo del controllo giurisdizionale in una democrazia liberale, (n 61) 202. 66

Decision of 8 February 1873 The most significant part of the ruling is the following: ‘La responsabilité, qui peut incomber à l’Etat pour dommage cause aux particuliers par le fait des personnes qu’il emploie dans le service public n’est pas régie par les principes établis dans le Code civil pour les rapports entre particuliers, elle n’est ni générale, ni absolue’.

67

Conseil d’Etat, 10 February 1905, Tomaso-Greco, Recueil Sirey, 1903, 113, annotated by M. Hauriou. See also G. Vedel e P. Delvolvé, ‘Administrative Justice in France’ in A. Piras (ed) Administrative Law. The Problem of Justice, III (Giuffrè, 1997) 429. See also, on the concept of general principles, R. Cassin, Introduction, Etudes et documents du Conseil d’Etat (1951) n. 3, 3; M. Letourner, Les dans la jurisprudence du Conseil d’Etat, ivi, 19.

68

Dicey, Law of the Constitution (n 31) 329 and 336.

69 70

P.P. Craig, Administrative Law (5th, Sweet & Maxwell 2003) 881.

For further remarks on this point, see D. Fairgrieve, ‘The Human Rights Act 1998, Damages and English Tort Law’, in D. Fairgrieve, M. Andenas & J. Bell (eds), Tort Liability of Public Authorities in

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had expressed the liability of public officers in general terms, at the end of that century they began to restrict conditions for the exercise of the action, showing an increasing reluctance to subject public bodies to liability for breach of statutory duty.71 Only some decades later has this reluctance been overcome, though non-contractual liability is still excluded in some fields, such as the military.72 Two conclusions follow from these observations. First, Dicey found support for his antithesis between the public law systems of England and France in the work of earlier writers. Amongst such writers, Tocqueville is undoubtedly preeminent, but Tocqueville had criticized the excesses of French administrative law in the first decades of the century, while Dicey wrote at the end of it, and was aware of the changes that had occurred since then. He therefore conceded that his initial vision, which was entirely negative, was no longer justified.73 This confirms the importance not only of continuity, but also of change. In other words, constitutional traditions are not immutable, but evolve and sometimes are characterized by ‘parallel developments’.74 Interestingly, one century after the first edition of Dicey’s Law of the Constitution, a Committee of justices observed that, unlike the the UK, ‘in French law there is a principle of general liability for injury caused by malfunctioning of the public service’, while there was no likelihood that the common law would evolve in that direction.75 Second, there is consent among Dicey’s interpreters that he emphasized the persisting ‘opposition’ between the public law systems of England and France for ideological reasons. However, his model of liability of public authorities under the ordinary law of the land was very helpful for all those who sought to reform continental systems of public law. In the same way, Otto Mayer, in his fundamental treatise on German administrative law, was equally influenced by French doctrines of public law, while he thought that the underlying constitutional principles had to be adapted to the German Empire.76 This is but further proof of the important role played by doctrines of public law. Comparative Perspective (BIICL 2002) 80 (mentioning actions different from negligence, available, for instance, against police authorities). 71

See Craig, Administrative Law (n 69) 884.

72

 Pearce v. Secretary of State for Defence [1988] 2 All England Reports, 348; P. Craig, Administrative Law, (n 69) 461.

73

For a similar remark, see M. Loughlin, Public Law and Political Theory (Oxford University Press 1992) 155 (pointing out that Dicey even conceded that ‘some body of men who combined official experience with legal knowledge’ could do better than a court).

74

For the thesis of the parallélisme des solutions, see J. Rivero’s Préface to S. Flogaitis, Administrative Law et Droit Administratif (L.G.D.J. 1986) 18. See also J.S. Bell, Comparative Administrative Law (n 7) 1282 (conceding that general principles of liability may be very similar, but noting that it is necessary to focus on specific areas to see how far the legal rules are really similar or show differences with regard to compensation).

75

Justice All Souls, Administrative Law – Some Necessary Reforms (Oxford University Press 1988) 331.

76

See O. Mayer, Deutsches Verwaltunsrecht (n 42). For a bird’s eye view of the shift from the legal theories of the State prevailing in the nineteenth century to those of the twentieth, see J. Rivero, Droit administratif (12 ed Dalloz 1987) 28.

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3.3 Common Constitutional Traditions (I): Audi Alteram Partem

While observing parallel developments reveals the limits of the idée reçue that public law is a sort of national enclave, it leaves unchallenged the more moderate variant, according to which the field of public law is characterized only by some recent common traditions. Its coherence with legal realities can be contested on several grounds. There are, in effect, strong common features in both substantive and procedural aspects of public law. I will begin with an element that characterizes legal processes, both judicial and administrative, that is to say the old maxim audi alteram partem. Parliamentary consent to taxation will be then taken into account. In moral terms, it is tempting to affirm that, whenever a human being is accused of some crime before a court or is likely to suffer from the consequences of the verdict of that court, such person must be provided with a meaningful opportunity to be heard before the court issues its verdict. It is easy to find some basis for this in the Bible, more specifically in Genesis and Deuteronomy and the need to hear both sides was regarded as common wisdom by Aeschylus in Orestes’ trial.77 I will argue however that the idea according to which this type of constraint is inherent in the exercise of judicial power emerges particularly clearly in Seneca’s version of a tragedy that can be regarded as a topos, that of Medea (78). Medea, the daughter of the King of the Colchians, had left him and her people in order to follow Jason. After many years, the couple and their children reached the territory of King Creon. Since Creon was afraid of Medea, and secretly wanted Jason to leave her in order marry his daughter, he decided to get rid of the foreign princess, by exiling her. Before this punishment was issued, Medea asked the King to reveal the cause of her expulsion, and said: ‘If you are acting as judge, investigate the case; if as king, give orders’. When Creon replied that his decree has already been decided, she argued that ‘He who decides an issue without hearing one side has not been just, however just the decision’. The original Roman text is even more explicit in saying that a judge may not decide ‘inaudita altera parte’. This is a powerful way to express not only the distinction between positive and natural law which is typical of, say, Antigone, but also to affirm that there are distinct limits and constraints concerning the powers of the State. Several centuries later, in the English legal experience, the idea that a process must be fair was regarded as the only one that conformed to the idea of law seen as government by rules. It conveyed the ideals of equality, impartiality, and openness and thus provided a barrier against arbitrariness. Mention must be made not only of the habeas corpus in the Magna Carta, as well as of subsequent 77

See the Deuteronomy, §§ 16-18 (‘you shall appoint judges… and they shall judge the people with righteous judgment’) and The Eumenides, § 431 (where Athena affirms ‘there are two sides to this dispute. I’ve heard only one half the argument’).

78

Seneca, Medea, §§ 190-202. On Greek principles of procedural justice, see J.M. Kelly, A Short History of Western Legal Thought (Oxford University Press 1992) Chapter I, § 17.

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statutory reconfirmations79, but also of Bagg’s Case, where the issue of procedural propriety was at the heart of the dispute brought before the Court of the King’s Bench. The Court, presided by Sir Edward Coke, did not refer only to the Magna Carta, but also to Seneca’s Medea, in order to affirm that ‘no man ought to be condemned without answer’.80 Whatever the value of this reference, it confirmed that a decision could be procedurally unfair, regardless of its content, and that this was particularly unacceptable in the context of a criminal trial. In a similar sense, two and a half centuries later, Montesquieu observed that the maxim audi alteram partem was an element of civilisation. He began by saying that in the French legal order such maxim had been codified for more than a thousand years. He added that the principle was much older and provided two plausible reasons for its codification, namely that a different practice had existed in some particular cases or ‘chez quelque peuple barbare. 81 Although Montesquieu thought that the contrary practice, that is to say judging without a prior hearing, was unacceptable to a civilized nation, he conceded that, at least in some cases, things had gone differently. We may call this a dynamic perspective, as opposed to the static one. It points out that legal institutions are not immutable. Quite the contrary, they evolve and may do so in a similar direction. Interestingly, before 1800 a similar evolution took place on both sides of the Atlantic Ocean. In America, for example, the Constitution of Maryland (1776) used the language of Magna Carta, when referring to the ‘law of the land’, while the Constitution of Virginia (1776) specified that, in ‘all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor’82 Some years later, in France, while the Declaration of the rights of men and citizen of 1789 focused on judicial safeguards broadly considered, the Constitution of 1793 specified that ‘no one ought to be tried and punished except after having been heard or legally summoned’83 In Italy, the maxim audi alteram partem had been enforced (with regard to administrative procedures) by the administrative judge since its creation (1890) , with a line of reasoning strikingly similar to that of the Court of the King’s Bench. In particular, in Chiantera (1894) the judge (Consiglio di Stato) affirmed that it was a ‘principle of eternal justice’. UK courts included this maxim in the principles of natural justice.84 Article 6 of the European Convention on Human Rights (ECHR) can thus be 79

See J. Roland Peacock, ‘Introduction’, in Pennock and Chapman (eds), Due Process ( Nomos XVII 1977) xvi and G. Marshall, ‘Due Process in England’, in Pennock and Chapman (eds) Due Process ibid, ivi, 69.

80

The case was decided in 1615: see D. Oliver, Common Values and the Public-Private Divide (Cambridge University Press 1999) 21 and 45 ff, for further remarks and references to the works of early commentators of the English Constitution, such as Blackstone.

81

Montesquieu, De l’esprit des lois (n 8) Livre XII, ch. II.

82 83

Bill of Rights of June 12, 1776, Section 8.

Article 14, Constitution of the Year I (1793).

84

See C. Harlow, Una rassicurazione simbolica: il ruolo del controllo giurisdizionale in una democrazia liberale (n 61) 216. The Chiantera ruling (1894) is published in A. Sandulli & G. Pasquini, Le grandi decisioni del giudice amministrativo (Giuffre 2001) 53.

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seen as the manifestation of a long-standing shared procedural value85, especially when there are conflicts between different conceptions of the good, and this explains its broad interpretation in the case law of the European Court of Human Rights.86 Whether this important aspect of the due process of law may be regarded as an example of a common constitutional standard outside Europe, as suggested by Carl Schmitt, is an intriguing question.87



3.3 Common Constitutional Traditions (II): Parliamentary Consent to Taxation

Another important example for the study of the genesis and development of common traditions is that of parliamentary consent to taxation. According to a widespread (especially in continental Europe) opinion, parliaments’ basic function is to approve new legislation. However, historically, their role was a legitimizing one with respect to the decisions taken by the King on taxation. In this respect, there are two very different narratives. The first narrative argues that the English constitutional experience is particularly important. It points out the principle laid down by the Magna Carta (1215), of ‘no taxation without the consent of Parliament’88, which successive monarchs felt it desirable to confirm or reissue. It adds that, when the right of consent to taxation was confirmed by the Bill of Rights in 1688, the lower House already had an important role in this respect.89 The right of consent to taxation gave Parliament its most important weapon against the Crown. It gradually obtained the right to approve the goals which justified taxation and, as a further step, the power to examine national accounts. This model, although gradually and with differing intensity, influenced the other European countries, as well as the birth of American constitutionalism (‘no taxation without representation’). The US Constitution not only confirms parliamentary consent to taxation, but it also specifies that all bills concerning taxes must be presented initially within the Chamber of Representatives.90 85

On Article 6, see P. Craig, ‘The Human Rights Act, Article 6 and Procedural Rights’, in Public Law, 2003, 753.

86

See J.P. Costa, ‘Some Aspects of the Influence of the European Convention on Human Rights on Domestic Law’ in G. Canivet, M. Andenas & D. Faigrieve (eds), Comparative Law Before the Courts (BIICL 2004) 85 (distinguishing the influence of the ECHR as such from that of its case-law).

87

See C. Schmitt, Der Nomos der Erde (n 17) II.5 and G. della Cananea, ‘Minimum Standards of Procedural Justice in Administrative Adjudication’, in S. Schill (ed), International Investment Law and Comparative Public Law (Oxford University Press 2010) 39 (observing that the right to be heard in administrative adjudication is a principle shared by OECD countries).

88

See D. Millar, ‘Parliamentary Control of Taxation in Britain’, in D. Coombes (ed), The Power of the Purse in the European Communities (Chatham House/PEP 1972) 198.

89

See W. Bagehot, The English Constition (n. 55) especially ch. IV.

90

US Constitution, Article I, Section 7, 1st indent.

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The other narrative holds that consent to taxation was a shared constitutional tradition in Europe, which was undermined by the rise of the absolute State.91 In a note of L’ancien régime et la Révolution, Tocqueville emphasised that the aristocracy always insisted that no tax bill or edict could be approved without the consent of the ‘états-généraux’.92 This was a Medieval institution including the representatives of clergy, nobility, and the third estate. When the ancien régime was close to financial collapse, a broad reform of taxation was proposed by the King’s Minister of finances, Calonne, in 1787. A natural, though maybe not inevitable, measure was thus to apply a tradition that had gradually faded during the rise of the absolutist State. However the King’s attempt to focus solely on taxes, in order to avoid the issue of representation, failed completely. A few years later, Article 14 of the Declaration of 1789 affirmed that all citizens have the right to express, either directly or through their representatives, their consent to taxation and to check the use of public resources.93 Whatever the primary source of inspiration, parliamentary consent to taxation was affirmed by several constitutions during the following century. For example, the Belgian Constitution (1831) affirmed this principle and specified that the consent was to be expressed through legislation (Article 110). The constitution of the Kingdom of Sardinia also laid down the principle of the primacy of the lower house.94 With regard to Germany, when Rudolf Gneist studied the complex relationship between legislation and budgets from the point of view of his own national law, he pointed out the need to consider the ‘concepts’ of English law, because they were the same as in German law.95 All this shows that although the UK and the US have close historical and cultural ties, which explain why more comparative references are usually made in each of them to the other than to the practice of any other country, these ties are not exclusive ones. The primacy of the lower house, in particular, was a common feature of European polities, and was justified by its election. This sketchy analysis of the origins and diffusion of parliamentary consent to taxation is also important for two more general reasons. First, it confirms that in the field of constitutional law there are also common traditions that are undoubtedly of some importance or weight, in the sense that they characterize or underlie a legal order, though they do not necessarily derive from legal norms or acts, but from practice. Second, it confirms that the existence of such common traditions does not depend on hierarchy or domination. It depends, rather, on the fact that some underlying fundamental values are shared by 91

For this thesis, see E. Garcia de Enterria, La lengua de los derechos (n 9) 176.

92 93

 L’ancien régime et la Révolution (1856) (Gallimard 1987) 364.

See E. Garcia de Enterria, La lengua de los derechos (n 9) 179 (examining the Napoleonic Constitution, of the Year VIII).

94

V. Onida, ‘The Historical and Constitutional Foundations of the Budgetary System in Italy’, in D. Coombes (ed) The Power of the Purse (n 88) 215.

95

R. Gneist, Gesetz und Budget. Constitutionelle Streitfragen aus der preussischen Ministerkrisis vom März 1878 (Springer 1878) § IV.B.1.

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European peoples. This suggests that further research may be very helpful in this respect, for example, to ascertain whether and the extent to which another provision of the French Declaration of 1789, that concerning the answerability of public administrators96, could be regarded as the manifestation of a common constitutional tradition. It also suggests that, when considering constitutional traditions, not only past practices, but also the underlying reasons or rationales must be duly taken into account. It is precisely because the existence of common constitutional traditions rests on some shared values that it is important to see whether, and the extent to which, such traditions are shared by the EU. A quick analysis of both the jurisprudence of the ECJ and the principles laid down by existing treaties will, therefore, be carried out in the next section.



4 The Rediscovery of the Common Legal Patrimony Within the EC/EU



4.1 The Early Years of the Jurisprudence of the European Court of Justice (ECJ) and the Revitalization of the ‘Ius Publicum Commune’

Since the first rulings issued in the context of the European Coal and Steel Community, the ECJ did not hesitate to interpret the Treaty of Paris and implementing legislation in the light of general principles of law drawn from the legal systems of the Member States.97 Consider, for example, the Court’s ruling in Algera. Algera and several others employees of the Common Assembly of the ECSC had brought an action against the decision by which the Assembly’s General Secretariat had withdrawn some financial benefits initially conceded to them. Before deciding whether the administration had reasonably exercised such power, the Court had to ascertain whether such power did exist, as a sort of inherent power, since neither the Treaty nor the specific regulation expressly provided for it. Faced with the problem of a lacuna of the legal system created by the Treaty, the Court resolved it in an ingenious way. It affirmed, first, that ‘unless the Court is to deny justice, it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case-law of the member countries’98 Secondly, it observed that ‘the revocability of an administrative measure vitiated by illegality is allowed in all Member States’. Third and more important, as Jean Rivero noted, it was a ‘droit commu’ which was elaborated in the Europe of the Six with regard to the standards of 96

Article 15 provided that ‘La société a le droit de demander a chacque agent public de rendre compte de son administration’.

97

See J. Rivero, ‘Le problème de l’influence des droits internes sur la Cour de Justice de la Communauté Européenne du Charbon et de l’Acier’, Annuaire français de droit international (1958) 259.

98

Joined cases 7/56, 3/57 to 7/57, Algera et al. v Common Assembly of the ECSC.

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legality. Rivero added that this elaboration was based on a deeper unity of their legal systems.99 In other words, since the early years of European integration, the Court refused the positivist assumption that the ‘law’ which it had to ensure respect for coincided with the Treaty and the sources it had created. Rather, it worked on the assumption that a common legal substrate existed, in the field of public law as well, and that it could avail itself of it. We may wonder, from this point of view, what is the real significance of the fact the in the same year the Treaty of Rome explicitly referred to the ‘general principles common to the laws of the Member States’. Article 215 of the treaty of Rome, that regarded the non-contractual liability of the institutions of the EC and which is now reproduced by Article 340.2 Treaty on the Functioning of the European Union (TFEU)100, implied not only the assumption that those general principles existed, but also the use of the comparative method for their individuation. That provision may be considered more as a confirmation of the acquis than as an innovation. Nevertheless, there is a serious risk, if such a minimalist view were to be adopted, that our capacity to understand the emergence of a new perspective would be seriously undermined. In fact, the Court’s interpretation and use of general principles common to the laws of the Member States went well beyond the provision concerning non-contractual liability. Its main basis was the general clause according to which its mission is to ensure the respect of the ‘law’ tout court in the interpretation and application of the Treaty, as well as the reference made by the Treaty to the observance of any rule of law, in addition to more specific elements such as incompetence.101 In this way, the Court could identify a variety of principles concerning the exercise of power by public authorities, including legal certainty, the protection of legitimate expectations, and the principle of proportionality. Another group of common principles concerns the limits to the powers exercised by public authorities. Such common principles include fundamental rights, as they stem from national legal orders, as well as from the ECHR. For present purposes, there is no need to take a position on the instrumental or non-instrumental use of fundamental rights by the European Court of 99

J. Rivero, Le problème de l’influence des droits internes sur la Cour de Justice de la Communauté Européenne du Charbon et de l’Acier (n 97) 265 (‘un droit commun qui s’élabore dans l’Europe des Six en matière de contrôle de la légalité, traduction juridique d’une unité plus profonde, qui atteint l’ordre des rapports entre le pouvoir, le droit, et l’homme’). See also E. Stein, ‘Uses, Misuses – and Nonuses of Comparative Law’ 72 Nw. U. L. Rev (1977-78) 198, 206 (pointing out the growing number of legal transplants realized by Community law).

100

For further remarks, see W. van Gerven, ‘The Emergence of a Common European Law in the Area of Tort Liability: the EC Contribution’, in D. Faigrieve, M. Andenas & J. Bell (eds), Tort Liability of Public Authorities in Comparative Perspective (n 70) 125.

101

T. Koopmans, ‘The Birth of European Law at the Cross-roads of Legal Traditions’ (n 63) 58, 495. The fact that the ECJ has not simply interpreted, but created law has been recognized by some judges: see recently S. Papasavvas, ‘La creation du droit par le juge de l’Union européenne’, 24 Eur. Rev. Public Law 167 (2012).

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Justice.102 What matters is, rather, first, that the Court’s approach to public law has challenged the idée reçue of contrasting national traditions in this field and, second, that this approach has not only shaped the evolution of the public law of the EC, but that it has also influenced national legal orders. Consider, for example, the principle of proportionality. Historically, it is questionable whether this principle, which implies that the exercise of power must not impinge on rights more than is necessary for the achievement of public goals, is a German doctrinal construct or has some common elements with English and continental views about reasonableness.103 There is no doubt that the test of proportionality is now frequently invoked before national courts however. The courts thus have to determine the weight that must be given to the individual, collective, and public interests involved and this inevitably influences their exercise of interest balancing.



4.2 The EU Treaty, Common Constitutional Traditions, and National Identities

After having identified two of the main trends of the jurisprudence of the ECJ in the general principles of laws concerning the exercise of power and in fundamental rights recognized by national legal orders, a further step is necessary before we can assess how the concepts and methods that have emerged in EC/EU law relate to the ideal of a jus publicum commune. It consists in considering how the Court’s doctrines were codified by the Treaty establishing the European Union and subsequently evolved. There are two distinct reasons for this. First, as it was suggested earlier, this approach to the study of public law challenges the excesses of positivism, and thus tries to appreciate how certain practices take place, also in relation to shared views about public law. However this does not imply that an analysis of ‘positive’ norms is not potentially a fruitful exercise. At the very least it may reveal whether such norms have changed over time, as a result of technical adjustments. It may also reveal the political attempts to achieve a change of reality. The ‘positivity’ of law must not, therefore, be neglected. Secondly and more concretely, several changes occurred in this field since the creation of the EU. For present purposes, the recognition of fundamental rights by the Treaty in 1992 is more important for its express reference to the ‘common constitutional traditions’,104 than for the filling of a presumed lacuna in the light of the old 102

For critical remarks, see J.H.H. Weiler, ‘Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities’, 61 Wash. L. Rev. 1103 (1986).

103

See A. Stone Sweet & H. Matthwes, ‘Proportionality Balancing and Global Constitutionalism’, Col. J. Eur. L. (2009) and A. Sandulli, La proporzionalità dell’azione amministrativa (Cedam, 1999) (mentioning the conception of the least intrusive exercise of administrative powers elaborated by Romagnosi in 1814).

104

A rticle F of the Treaty on European Union provided that: ‘1. The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy.

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assertion that a country without a bill of rights does not have a constitution.105 Subsequently, the Treaties of Amsterdam and Lisbon have confirmed that the EU must respect fundamental rights, as guaranteed by the ECHR and ‘as they result from the constitutional traditions common to the Member States’, specifying that such rights shall constitute general principles of the Union’s law (Article 6.3 TEU).106 However, it also requests the EU to safeguard the ‘national identities’ of its Member States, ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’ (Article 4.2).107 This clearly reveals the attempts made by national policy-makers to give symbolic dignity to some national particularities and thus to try to preserve them, including the division of powers between the centre and the periphery, from the consequences of the ever closer union. It may be observed that there is something bizarre in asking positive law to rest on history and that the concept of ‘national identity’ is not an easy one. One question is whether this concept can be regarded as equivalent to that of tradition, even in the light of the other linguistic texts of the Treaty. However, two other aspects are of more direct interest for our analysis. The first is that after twenty years and three revisions of the Treaty the reference to the common constitutional traditions is an established feature of the public law of the EU. It has remained unchanged despite the recognition of the EU’s competence to accede to the ECHR. Secondly, and consequently, this confirms the Union’s openness not to a single, though important, national legal order, but to the unifying elements of all of them and thus the vitality of the jus publicum commune. In my opinion, this does not necessarily imply that it is more constructive to focus on what national systems of public law have in common than on what are supposed to be the persisting and insuperable differences between them. It implies, rather, that it would be methodologically unsound to take for granted that no such common tradition exists in the field of public law. As a consequence of this, both empirical studies and more theoretical analysis, for example about the ways in which national legal cultures conceive traditions in the field of law, 2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. 105

See L.M. Dièz-Picazo, ‘Una constituciòn sin declaraciòn de derechos?’ in Id. Derecho constituciònal de la Union europea (Civitas 2005) 11.

106

See the Charter of Fundamental Rights, Article 52 (4) affirming that ‘In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions’.

107

See also the Preamble of TEU ‘desiring to deepen the solidarity between their peoples while respecting their history, their culture and their traditions’ (emphasis added) and Article 167 (ex Article 151 TEC) ‘The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’.

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are required. This would improve our understanding of the underlying shared beliefs and values and, as a result, their distinction from national identities, whatever this concept implies.

5 Ius Publicum Commune: A Vital Concept This paper opened with the conjecture that the received idea according to which public law is a sort of national enclave is unsatisfactory. We are now in a position to appreciate why this received idea must be rejected, with regard to both variants, the radical and the moderate. The former is that expressed by Savigny, according to whom only private law had become a common legal framework because of its roots in the Roman legal patrimony, while (Roman) public law did not. The latter is the assertion that there may be some common traditions in the field of public law, but only in the last two centuries. In other words, it is undisputed that the stock of our systems of public law is wholly or mainly divergent, while it is disputed whether current flows converge, at least in part. I have tried to show, first, that both variants are heavily influenced by ideological assumptions. This is hardly surprising, since it is undisputed that writers such as Savigny and Dicey were not simply trying to elaborate more accurate descriptions of the law, but shaped them on the basis of their own visions of the world. However, my point is more specific, to the extent that it focuses on the fact that both the radical and the moderate variants have methodological weaknesses. I have, secondly, endeavoured to demonstrate that such weaknesses become all the more evident when considering legal realities, including constitutional principles and their interpretation by political institutions and judicial authorities. Certainly, it must be recognized that there are several variants of separation of powers, that are heavily influenced by history and culture and which have produced very different outcomes. However, traditions in the field of public law are not immutable, but evolve. Sometimes, they also evolve in similar directions or, to put it in a different way, are characterized by parallel developments. This is the case of what used to be regarded as one of the most manifest distinctive features, notably the non-contractual liability of public authorities. Moreover, other fundamental principles of public law, such as that expressed by the maxim audi alteram partem and parliamentary consent to taxation reveal important common features. These insights raise doubts not only with regard to the radical variant of the received idea criticized earlier, but also to the moderate one. They show that the presentation of the legal world as based on clear-cut distinction between a field of private law characterized by commonality and a field of public law which is a national enclave is a recent cultural construct and a highly questionable one. They suggest, instead, that the earlier theorists, particularly Leibniz, were

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correct in also conceptualizing the field of public law in terms of jus publicum commune. 108 This is particularly important, for, unlike hard sciences, legal scholarship does not simply collect evidence or seek for empirical confirmation of a given theory. It often interacts directly with its object and may even modify it. Not only scholarly concepts, but even language plays a fundamental role in this respect, as Eduardo Garcia de Enterria has convincingly argued.109 This happens, for example, when the courts, either explicitly or implicitly, dismiss a certain argument of the parties on the basis of an established authority. With regard to European Community (EC) law, an important example of this may be identified in Hallstein’s thesis according to which the EC is a Rechtsgemeinschaft, that is to say (though the two concepts do not coincide) a Community based on the Rule of law.110 Another important reason why the radical variant is unsatisfactory in the present phase of legal history is precisely its failure to provide a satisfying interpretation not only of the path of European integration, but also of the norms of the TEU, which nobody would hesitate to include among those having a constitutional status. All this does not exclude that the works of great scholars such as Savigny and Dicey are still of great interest for our understanding of the concepts that are used by legal scholarship and that infused meaning to practices that influenced the structures of public law. It suggests, rather, in contrast with another received idea, that according to which our legal systems differ despite our efforts to look at them more similarly than we used to do in the past, that legal realities have common elements despite our representations of such realities.111

108

For this kind of argument, see E. Garcia de Enterria, La lengua de los derechos (n 9) and A. Pizzorusso, Il patrimonio costituzionale europeo (Il Mulino 2000).

109

E . Garcia de Enterria, La lengua de los derechos, (n 9) 11. See also M. Loughlin, Public Law and Political Theory (n 73) 36 (arguing that in the legal field ‘fact and value cannot be kept categorically distinct’).

110

For this remark, see R.C. Van Caenegem, Judges, Legislators, and Professors. Chapters in European Legal History, (n 11) ch. I (pointing out that common law is different) and B. Leoni, Liberty and the Law (Liberty Fund 1961) ch. III (holding that initial differences have even grown during the Twentieth century and exploring their implications for legal methodologies). Though the importance of Leoni’s contribution has been underestimated for a long period of time, especially in his own country, a better awareness of it is now emerging: see P. Aranson, ‘Bruno Leoni in retrospect’, 11 Harvard J. L. & Publ. Pol 665 (1988).

111

In a slightly different sense, see S. Cassese, La formation du droit administratif: France et Royaume Uni (n 37) 125 (suggesting that contexts are increasingly similar, though there are still evident differences).

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EU Administrative Law and Tradition Paul Craig

chapter 9



eu administrative law and tradition

1 Introduction

This chapter examines tradition as it informs European Union (EU) Administrative law. It should be noted at the outset that there is a duality in the meaning of tradition that should be revealed for the sake of analytical clarity. The concept can be used to capture the background influences, ‘traditions’, which have informed the subject. It can also be used to denote the tradition that is apparent in the subject as it currently exists, thereby capturing its essential features. This duality is inherent in phrases such as the common law tradition, or the civil law tradition, which when unpacked reveal something about both the historical and cultural influences that have shaped the respective approaches to law, and also something about their current central characteristics. This chapter explores both senses of the term tradition in relation to EU Administrative law, thereby casting light on the traditions that have shaped the subject since the inception of the EEC, and also reflecting on the tradition that informs the subject in its more developed form.



2 Source and Inspiration

The European Economic Community (EEC) at its inception did not by definition have its own traditions on which to build when shaping what became EU Administrative law. There is nonetheless now an extensive body of jurisprudence that is clearly recognizable as EU Administrative law, and it is therefore interesting to reflect on the forces that created this ‘tradition’ within the EU. It is fitting to begin the inquiry by reflecting on the sources of EU Administrative law and the more general forces that inspired the traditions that now underpin the subject. The sources of EU administrative law have always been eclectic. They are to be found primarily in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) (TEU and TFEU together referred to as the Treaty), EU legislation, the case law of the EU courts and decisions made by the European Ombudsman. The administrative law of the Member States has moreover been influential in shaping the EU regime. Thus the Treaty contains Articles that deal with principles, both procedural and substantive, which are directly relevant for judicial review, as exemplified by: Article 296 Treaty on the Functioning of the European Union (TFEU), which establishes a duty to give reasons that applies to all legal acts, whether legislative, delegated or implementing; Article 15 TFEU, which provides for a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to certain principles and conditions; and Article 18 TFEU, which contains a general proscription of discrimination on the grounds of nationality, further fleshed out in specific Treaty Articles dealing with free movement of workers, freedom of establishment, and the provision of services,

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non-discrimination on the grounds of gender, non-discrimination as between producers or consumers in the field of agriculture, and discriminatory taxation. EU legislation made pursuant to the Treaty may also deal with the principles of judicial review. This legislation may flesh out a principle contained in a Treaty article. This was the case in relation to the legislation adopted pursuant to Article 15 TFEU, dealing with access to information. EU legislation may also establish a code of administrative procedure for a particular area. The EU courts have however made the major contribution to the development of administrative law principles. They have read principles such as proportionality, fundamental rights, legal certainty, legitimate expectations, equality and procedural justice into the Treaty, and used them as the foundation for judicial review under Articles 263 or 267 TFEU. The initial inspiration for the regime of administrative law developed in the EU came from the French tradition. This was unsurprising, given the predominance of French thought in the framing of the original Treaties. This is especially marked in Article 263(2) TFEU, which stipulates that review shall be available for lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The influence of French juristic thought is clearly imprinted on these grounds of review.1 The four heads of review, lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or any rule of law relating to its application and misuse of power, resonate with the French mode of administrative law thought. While the French civil law tradition was therefore dominant in the framing of the key provision concerning judicial review in Article 263, the European Court of Justice (ECJ) and General Court of the EU (GC) used their inherent judicial discretion to shape the principles of judicial review that were to apply within the EU legal order. Principles of administrative law in Member States other than France naturally exercised influence on the ECJ’s emerging jurisprudence. It was unsurprising that German thought came to exert considerable authority in this respect. The judicial discretion in developing the grounds of review was enhanced because the grounds listed in Article 263 were relatively open-textured. Infringement of an essential procedural requirement could be read in a number of ways and gave ample latitude to the EU judiciary to develop it as they saw fit, and so too was the third ground of review, infringement of the Treaty or any rule of law relating to its application. The EU courts did not systematically trawl through the legal systems of each Member State to find principles that they had in common. The approach was, rather, to consider principles in the major national legal systems, to use those that were felt to be best developed and to fashion them to suit the EU’s needs. Thus as Advocate General Lagrange stated, the ECJ does not seek arithmetical common denominators between the national approaches to a particular prob1

J. Schwarze, European Administrative Law (Office for Official Publications of the European Communities/Sweet & Maxwell, revised edition, 2006) 40.

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lem, but rather chooses from ‘each of the Member States those solutions which, having regard to the objects of the Treaty, appear to be the best or, if one may use the expression, the most progressive’.2 German law was most influential in this regard. It was German jurisprudence on, for example, proportionality and legitimate expectations that was of principal significance for the development of EU law in these areas. Judicial discretion in shaping the principles of judicial review was also required because the heads of review as specified by Article 263(2) TFEU did not provide an answer to certain issues, which are addressed by all systems of administrative law. They did not on their face tell one about the standard for review in relation to matters of law, fact or discretion. Now to be sure the Treaty provides, as we have seen, in Article 19 TEU that it is for the ECJ to ensure that the law is observed in the interpretation and application of the Treaty. To be sure also, there will be certain instances, such as competence strictly conceived, where the courts will naturally incline to strict control and substitution of judgment as to the meaning of the contested Treaty article or provision of secondary legislation. This does not diminish the force of the point being made here, which is that many of the seminal issues concerning the test for review for errors of law, fact or discretion are not addressed by the Treaty, with the necessary consequence that they have been elaborated by the EU courts.



3 Status and Hierarchy

A central feature in divining the ‘tradition’ of EU Administrative Law is the status of the norms that comprise the subject, and more especially their place within the overall hierarchy of norms that constitute that legal system. There is in this sense a symbiotic link between creativity and tradition. This may seem paradoxical, but the paradox is apparent rather than real. Judicial creativity will play an essential role in shaping the place of administrative law principles within the relevant legal system, and the place thus assigned for such principles will be central in shaping the tradition of administrative law in that legal system. It is clear that general principles of law as devised by the ECJ, which constitute the core of EU Administrative law function as interpretive guides in relation to primary Treaty articles and regulations, directives and decisions enacted pursuant thereto. The EU courts cannot invalidate primary Treaty articles, but the general principles of law are nonetheless used to interpret the Treaty articles. These principles can moreover be used to annul regulations, directives, decisions and other EU acts with legal effect. Violation of a general principle of EU law will thus serve as a ground for annulment. The principles can also be used against national measures that fall within the scope of EU law. Breach of a general principle may also form the basis for a damages action against the EU, 2

Case 14/61 Hoogovens v High Authority [1962] ECR 253, 283-284, Lagrange AG.

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or the Member States, subject to fulfilment of the conditions for this species of liability. The general principles of law thus sit below the Treaties, but above all else. It is important to emphasize that this status attaches to all general principles of law, not merely to that part dealing with fundamental rights. Thus if a claimant can show that an EU legislative act is contrary to, for example, the principle of legitimate expectations or the precautionary principle and that it cannot be interpreted to be in conformity with such precepts, then it will be declared void. This conclusion will also follow if, for example, the claimant is able to show that an EU legislative act infringes proportionality, even if the case has nothing to do with fundamental rights. The explanation for the status accorded to general principles in EU law cannot rest per se on the analogy with principes généraux du droit in France. At the inception of the EEC the principes généraux du droit were not fully developed in French law. More importantly the Conseil d’Etat could not invalidate primary legislation, and the Conseil Constitutionnel had not yet undergone its rebirth. The renaissance of the Conseil Constitutionnel in the 1970s facilitated challenge to primary legislation, but only ex ante and there was no possibility for challenge ex post prior to the recent constitutional reforms in France.3 Thus any idea that the status accorded to general principles in EU law was somehow pre-ordained by domestic analogy is flawed. The reality was, rather, that the status accorded to such principles was a choice made by the ECJ, which was facilitated by the wording of what is now Article 263 TFEU. Thus once the ECJ interpreted the magic phrase ‘any rule of law relating to their application’ as the grounding for general principles of law, it was an easy step to place them above legislative acts in the hierarchy or norms, since Article 263(1) TFEU was predicated on such acts being susceptible to judicial review. This very wording of Article 263(1) in rendering EU legislative acts susceptible to judicial review should moreover be viewed in the historical context sketched above. At the inception of the EEC, the legislative process was dominated by the Commission and Council. It was imperfectly democratic to say the least and hence the idea that judicial review in accord with general principles of law should sit ‘above’ norms made in this manner could be accepted with relative equanimity. The structural relationship between Articles 263(1) and (2) has however remained unchanged in the subsequent years, notwithstanding the significant development and democratization of the EU legislative process. The status accorded to general principles of law gives the EU courts a very powerful tool to shape the emerging EU legal and political order, since they are the ultimate deciders as to whether EU legislation is consonant with the ever expanding list of general principles of EU law. The EU legislature may respond to invalidation of a legislative act for non-compliance with a general principle 3

M. Rogoff, ‘Fifty Years of Constitutional Evolution in France: The 2008 Amendments and Beyond’, (2011) 6 Jus Politicum. See also the articles in (2012) 7 Jus Politicum as to whether the Conseil Constitutionnel is the guardian of fundamental rights.

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of law by re-drafting it to remove the legal infirmity. This does not alter the fact that the judicial view as to what is demanded by general principles of law will trump any such estimation made by the EU legislature, irrespective of whether the case is concerned with fundamental rights. It might be argued that the status of general principles of law in the hierarchy of norms is legitimate because the wording of Article 263(1) is expressly predicated on legislative acts being reviewable in accord with the criteria in Article 263(2). It could be argued further that the framers of the Lisbon Treaty were fully mindful of review for compliance with general principles of law, which had existed for over forty years, and were content that the new Lisbon category of legislative act should be subject to this same regime. There is force in this view. There is nonetheless scant if any evidence from the deliberations that led to the Constitutional Treaty4 to suggest that thought was given to this issue. There was discussion of the hierarchy of norms, which led to the Lisbon distinctions between legislative, delegated and implementing acts. There is however no indication of considered reflection on the status of general principles of law within the hierarchy of norms in a regime where the passage of legislative acts has some real democratic legitimacy.5 It might alternatively be contended that the status of general principles of law is justified in normative terms, in the sense that the placing of general principles of law below the Treaties, but above other EU norms, is correct in normative terms. This argument must however be sustained, not merely stated as if self-evidently correct. Such an argument could be constructed, but would be contestable. The normative premise might be positivist in orientation, drawing on the wording of Article 263 as the source-based legitimation for judicial articulation of general principles of law. The normative premise might alternatively be a non-positivist theory of law, in which it was accepted as legitimate for courts to create general principles of law that bind the legislature, irrespective of the precise wording of Article 263 in this regard. The normative premise might alternatively be a non-positivist theory of law, in which it was accepted as legitimate for courts to create general principles of law that bind the legislature, irrespective of the precise wording of Article 263 in this regard. Whether one prefers the positivist or non-positivist rationale for the status of general principles of law within the EU legal system the fact that such principles are below the Treaties, but above all other legal norms, gives them a peremptory force that is central to the emerging tradition of EU Administrative law. It places the courts in a very powerful position. While they cannot invalidate the Treaty articles they can use the general principles as strong interpretive devices in deciding on the meaning that a particular Treaty article should bear, and once 4

The Constitutional Treaty was never ratified, but much of the content was taken over into the Lisbon Treaty.

5

This point could indeed be made pre-Lisbon, and post-Maastricht, given that the co-decision procedure, the precursor to the ordinary legislative procedure, had democratic legitimacy in the areas to which it applied.

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the Treaty article is construed in this manner then that constitutes its meaning, subject to any later Treaty amendment to the contrary. The courts’ power in relation to legislative, delegated and implementing acts is even greater, since the principles can be used not only as interpretive devices, but also as the rationale for annulment, with the consequence that the EU will have to re-enact such measures in a form that complies with the precepts of administrative law as laid down by the courts.



4 Principle and Purpose

The traditions that inform national systems of administrative law will necessarily vary depending, inter alia, on culture, politics and history. There is nonetheless some commonality between different legal systems. It is common for the development of particular precepts of judicial review to be justified by recourse to the rule of law, which is a concept with diverse meanings, both formal and substantive.6 The idea that administration should be procedurally and substantively accountable before the courts has been central to the rule of law. The rule of law tradition had especial force in the emerging Community legal order. This was because even though there might be room for argument as to the detailed principles of judicial review that should follow from the rule of law, it could hardly be denied that some such principles should exist, given the desire to assure the Member States and national courts that the rapidly growing Community power would be subject to proper legal scrutiny. The primary Treaty provisions were incomplete in this respect, but provided fertile ground for development of a richer set of administrative law principles grounded on the rule of law. Article 263(2) TFEU specified, inter alia, that review should be available for breach of the Treaty or any rule of law relating to its application. We do not know what the latter part of this phrase was intended to connote. The intent might have been to do nothing more than ensure that Commission decisionmaking should have to comply not only with the primary Treaty articles, but also regulations, directives and decisions passed pursuant thereto. The intent might alternatively have been to capture not only compliance with secondary legislation, but also with other ‘rules of law relating to the application’ of the Treaty that might be developed by the courts. This ambiguity provided the ECJ with a window through which to justify the imposition of administrative law principles as grounds of review. Article 19 TFEU was equally important in this respect. It charged the ECJ with the duty of ensuring that in the interpretation and application of the Treaty the law should be observed. This might have been interpreted in a limited 6

P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, [1997] PL 467.

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manner to connote the idea that, for example, Commission decisions should be made within the limits laid down by the primary Treaty articles and secondary legislation. The word ‘law’ was however open to a broader interpretation that could legitimate the ECJ fashioning a ‘system of legal principles in accordance with which the legality of Community and Member State action must be determined’.7 The latitude afforded by Articles 19 TEU and 263(2) TFEU laid the foundation for the ECJ to read general principles into EU law. A rich body of jurisprudence developed on process rights, fundamental rights, equal treatment and non-discrimination, proportionality, legal certainty and legitimate expectations. The EU courts’ jurisprudence on general principles informed by the background precept of the rule of law was well-developed by the time of the Treaty of Amsterdam. The amendment of the TEU to provide express recognition that the EU was founded, inter alia, on the rule of law was nonetheless supportive of the judicial strategy. Article 2 TEU now provides that, The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The rule of law tradition naturally fed into and informed development of EU Administrative law. It was not however the only background tradition that shaped the subject at EU level. The ECJ has also had recourse to the idea of institutional balance.8 The idea of institutional balance has a rich history. It was an important part of republican discourse in the fifteenth and sixteenth centuries,9 shaping the desired structure of government in the Italian republics,

7

T. Tridimas, The General Principles of EU Law (Oxford University Press, 2nd ed, 2006) 11. See also, M. Luisa Fernandez Esteban, The Rule of Law in the European Constitution (Kluwer Law International, 1999) 106-122.

8

P. Craig, ‘Democracy and Rulemaking within the EC: An Empirical and Normative Assessment’, (1997) 3 ELJ 105; K. Lenaerts and A. Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’, in C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford University Press, 2002) Ch 2; S. Smismans, ‘Institutional Balance as Interest Representation. Some Reflections on Lenaerts and Verhoeven’, in Joerges and Dehousse, Ch 3; J.-P. Jaque, ‘The Principle of Institutional Balance’, (2004) 41 CMLRev 383; P. Craig, ‘Institutions, Power and Institutional Balance’, in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, end ed, 2011) Ch 3.

9

J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton University Press, 1975) and Virtue, Commerce and History (Cambridge University Press, 1985).

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exerting later influence in England and the United States.10 Institutional balance was a central tenet in the republican conception of government. This was based on the twin precepts that the form of political ordering should encapsulate a balance between different interests, which represented different sections within civil society, and that democratic deliberation should be designed to achieve the public interest rather than narrow sectional desires. Considerable emphasis was placed on institutional balance within EU political debates, more especially during Treaty revisions when the major institutional players made explicit reference to it in making recommendations for the desired distribution of power between them.11 Legal recourse to the concept of institutional balance that is of direct relevance to EU Administrative law is evident in the saga concerning the European Parliament’s standing to seek judicial review. Prior to the passage of the TEU it was not accorded any formal privileged status in Article 173 EC as it then was. In the ‘Comitology’ case12 the ECJ rejected the EP’s argument that it should have the same unlimited standing as other privileged applicants, because Article 173 did not afford it a privileged status and because the ECJ felt that there were other remedies through which the EP’s prerogatives in the legislative process could be protected. The issue was considered again in the ‘Chernobyl case13 where the ECJ admitted that these legal remedies might be ineffective and that it was therefore uncertain whether a measure adopted by the Council or the Commission in disregard of the Parliament’s prerogatives would be reviewed. The ECJ concluded that it must ‘be able to maintain the institutional balance and, consequently, review the observance of the Parliament’s prerogatives when called upon to do so by the Parliament, by means of a legal remedy which is suited to the purpose which the Parliament seeks to achieve.’14 The absence of any Treaty provision giving the EP the right to bring an action for annulment was conceptualised as a procedural gap, which could not prevail over ‘the fundamental interest in the maintenance and observance of the institutional balance laid down in the Treaties establishing the European Communities’.15 The ECJ therefore concluded that the EP could bring an annulment action to safeguard its prerogatives, which included participation in the drafting of legislative measures, in particular participation in the co-operation procedure laid down in the Treaty. Formal Treaty amendment followed swiftly after the ECJ’s ruling. Article 173 EC was re-drafted in the Maastricht Treaty to reflect the legal position 10

C. Sunstein, ‘Interest Groups in American Public Law’, 38 Stan L Rev 29 (1985) and ‘Beyond the Republican Revival’ 97 Yale LJ 1539 (1988); F. Michelman, ‘Foreword: Traces of Self-Government’, 100 Harv L Rev 4 (1986); P. Craig, Public Law and Democracy in the United Kingdom and the United States of America (Oxford University Press, 1990) Ch 10.

11

Craig (n 8) 107-109.

12 13

Case 302/87 European Parliament v Council [1988] ECR 5615.

Case C–70/88 European Parliament v Council [1990] ECR I–2041.

14 15

Ibid [21]-[23].

Ibid [26].

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reached by the ECJ. It was further amended by the Treaty of Nice and the EP was added to the list of privileged applicants. Legal recourse to the concept of institutional balance in shaping EU Administrative law is apparent once again in the Meroni decision.16 The applicant challenged a decision of the High Authority on the ground that there had been an improper delegation of power to certain agencies concerning scrap metal. The ECJ held that a delegating authority cannot confer power upon another body different from that which it possessed: if the High Authority had exercised the relevant powers itself it would have been subject to a duty to give reasons, a duty to publish an annual report on its activities, a duty to publish data that would have been useful to governments or other concerned parties, and it would have been subject to judicial review. The agency to which power had been delegated was not subject to any of these constraints. The ECJ’s concluded that the delegation would undermine the ‘balance of powers which is characteristic of the institutional structure of the Community.’17



5 Individual Protection and Administrative Efficacy

The tradition of administrative law that emerged in the EU was in certain respects Janus faced in a manner not often noticed. There was, on the one hand, the classic vision of EU Administrative law as designed to protect the individual against the administration, as manifest most noticeably in the creation and development of general principles of law. This dimension was also evident in the creative use made of the principle of effectiveness, which was used to shape many areas of EU law, including administrative law. This is apparent, for example, by use made of the principle to lay the foundation for Member States’ damages liability in Francovich 18 where the ECJ held that the full effectiveness of EU rules would be impaired and the protection of the rights which they granted would be weakened if individuals were unable to obtain compensation when their rights were infringed by a breach of EU law for which a Member State was responsible. This was especially so where the full effectiveness of EU rules was subject to prior action by the State, with the consequence that individuals could not, in the absence of such action, enforce the rights granted to them by the EU before the national courts. It followed that the principle of state liability for harm caused to individuals by breaches of EU law for which the State was responsible was inherent in the Treaty. There was, on the other hand, the way in which judicial review actions served as a vehicle to enhance administrative effectiveness. Actions would be brought before the courts in which claimants would challenge for example a Commission decision made in the context of shared administration, direct 16 17

Case 9/56 Meroni & Co, Industrie Metallurgiche SpA v High Authority [1957-58] ECR 133.

Ibid 152.

18

Cases C–6/90 and C–9/90 Francovich and Bonifaci v Italy [1991] ECR I–5357.

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administration, Comitology or agencies. The individual would often lose such actions, and the ECJ would take the opportunity afforded by having the case brought before it to give a ruling, often teleological in nature, which served to render the overall schema of the legislation more effective, by interpreting the enabling legislation so as to close loopholes or prevent unwarranted avoidance techniques that undermined the overall objective of the regulatory schema. Judicial review thus became an important vehicle through which the EU courts filled gaps, and interpreted the enabling legislation in the light of its overall objective in order thereby to enhance administrative effectiveness in that particular area. This does not of course mean that such decisions should always be accepted with equanimity. Administrative efficacy is no automatic trump that can justify any legal decision given in its name. Nor should we veer in the opposite direction and view such decisions as illegitimate or unwarranted. It is part of the judicial function to effectuate an administrative regime by interpreting the empowering regulations or directives to attain the overall purpose.



6 Geographical Reach and Administrative Diversity

The discussion thus far has explored both the traditions that have shaped EU Administrative law, and the tradition that informs the subject in its more developed form. The understanding of the latter would however be incomplete without reference to the novel challenges that have had a profound impact on shaping what is now the EU Administrative law tradition. Two such challenges are especially important in this respect, geographical and administrative diversity. Thus the EU courts and legislature have had to craft principles of judicial review that can be applied across an EU of twenty seven Member States, and they have also had to craft such principles to cope with a plurality of administrative forms, including direct administration, shared administration, Comitology, agencies, networks, and the open method of coordination. This has been a daunting task, to which the EU courts and legislature have both contributed. Space precludes detailed examination, but the nature of the task and the respective contributions of EU courts and legislature can be exemplified by reflecting a little further on shared administration, which has been central to the pattern of Community administration since the inception of the EEC. It was the administrative mode used for issues such as customs, with Community legislation being applied by national customs authorities.19 It was also the

19

Council Regulation (EEC) 2913/92 of 12 October 1992 establishing the Community Customs Code [1992] OJ L302/1; Commission Regulation (EEC) 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) 2913/92 establishing the Community Customs Code [1993] OJ L253/1.

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administrative technique used for the Common Agricultural Policy (CAP),20 which was the early paradigm for shared administration, and the birthplace of Comitology. The Commission and the Member States had distinct administrative tasks, which were nonetheless inter-dependent, and were set down in legislation and where both had to discharge their respective tasks for the Community policy to be implemented successfully.21 Thus the administration of the CAP was ‘shared’, since the various forms of price support payments were administered jointly by the Commission and the Member States.22 This was done initially through the European Agricultural Guidance and Guarantee Fund (EAGGF). The main enabling provision was Regulation 729/70.23 The Member States designated the bodies within their countries that would make the payments covered by the Guarantee section,24 and the Commission would make the funds available to the Member States for disbursement by those bodies.25 The Member States were under an obligation to take the necessary measures to satisfy themselves that the transactions financed by the Fund were carried out correctly; to prevent and deal with irregularities; and to recover sums lost as a result of irregularities or negligence.26 The Member States and the Commission had the power to carry out inspections to ensure the probity of the transactions financed by the Fund.27 In addition to the provisions of Regulation 729/70 the protection of the Community Budget was to be secured through the system of clearance of accounts. The rationale for this form of administration was not difficult to discern. The price support regime required multiple complex payments to farmers throughout the Community. It could not conceivably be undertaken by the Commission itself. The Commission therefore operated by and through national bureaucracies, which often established a specialist national agency to discharge the duties. The very fact that the Member States’ duties were formally enshrined in Community regulations served to sharpen the duality of the responsibility for implementation of the policy. 20

W. Grant, The Common Agricultural Policy (MacMillan, 1997); R. Fennell, The Common Agricultural Policy: Continuity and Change (Clarendon Press, 1997); J. McMahon, Law of the Common Agricultural Policy (Longman, 2000); M. Cardwell, The European Model of Agriculture (Oxford University Press, 2004).

21

Committee of Independent Experts, Second Report on Reform of the Commission, Analysis of Current Practice and Proposals for Tackling Mismanagement, Irregularities and Fraud (10 September 1999), Vol. I, [3.2.2].

22 23

Ibid, [3.6.3].

Council Regulation 729/70/EEC on the financing of the Common Agricultural Policy [1970] OJ 1970 L94/13.

24 25

Ibid, Art. 4(1).

Ibid, Art. 4(2).

26 27

Reg. 729/70 (n 23) Art. 8(1).

Ibid, Art. 9.

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The CAP is also of more general significance in relation to the pattern of Community administration because it gave birth to Comitology.28 It rapidly became clear that the administration of the CAP would require the deployment of detailed rules in ever-changing market circumstances. Recourse to primary legislation on all such occasions was impracticable. It was equally apparent that the Member States were wary of according the Commission a blank cheque over the making of implementing rules, especially given that power once delegated without encumbrance would generate legally binding rules without further possibility of Council oversight. The newly emergent committee system was also conceived as a way of dealing with disagreements between the Member States themselves. The net result was the birth of the management committee procedure, embodied in the early agricultural regulations.29 Involvement in the making of the implementing rules facilitated interaction between national administrators who would be responsible for the application of the rules at national level. The committee methodology spread rapidly to other areas, and became a standard feature attached to the delegation of power to the Commission.30 Shared administration was once again the administrative mode used in the context of the Structural Funds.31 The Single European Act (SEA) was the major catalyst for development in this area. Reform of Structural Fund policy was a consequence of the drive to complete the internal market, since such reform was seen as necessary to ensure the acceptability of the market-based initiatives contained in the SEA. There were fears that the wealthier economies would benefit from the completion of the single market, with the consequence that the gap between them and the less advantaged economies would widen. Reform of the Structural Funds was seen as one way of alleviating these concerns. The Treaty was therefore amended through the inclusion of new articles under the 28

C. Bertram, ‘Decision-Making in the EEC: The Management Committee Procedure’ (1967-68) 5 CMLRev 246; P Schindler, ‘The Problems of Decision-Making by Way of the Management Committee Procedure in the EEC’ (1971) 8 CMLRev 184; C. Bergstrom, Comitology, Delegation of Powers in the European Union and the Committee System (Oxford University Press, 2005) Ch 2.

29

See, e.g., Council Regulation 19/62/EEC of 4 April 1962 on the progressive establishment of a common organisation of the market in cereals [1962] OJ 30/933, Arts. 25-26.

30

See, e.g., Council Regulation 802/68/EEC of 27 June 1968 on the common definition of the concept of the origin of goods [1968] OJ L148/1, Arts. 12-14.

31

G. Marks, ‘Structural Policy in the European Community’, in A. Sbragia (ed), Euro Politics: Institutions and Policymaking in the ‘New’ European Community (Brookings Institution, 1992); J. Scott, Development Dilemmas in the European Community: Rethinking Regional Development Policy (Open University Press, 1995); L. Hooghe (ed), Cohesion Policy and European Integration (Oxford University Press, 1996); I. Bache, The Politics of European Union Regional Policy: Multi-Level Governance or Flexible Gatekeeping? (Sheffield Academic Press, 1998); T. Christiansen, ‘Territorial Politics in the EU’ (1999) 6 JEPP 349; J. Scott, ‘Regional Policy: An Evolutionary Perspective’, in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999) Ch 17; A. Evans, The EU Structural Funds (Oxford University Press, 1999).

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Title of Economic and Social Cohesion,32 through which the Community aimed to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions. The attainment of these aims was to be supported through the Structural Funds.33 The detailed operation of this regime was set out by Regulation 2052/88,34 which identified the principal objectives and tasks of the Funds. The regime of shared administration in the 1988 regulations entailed formal shared responsibility between Member States and Commission in relation to both input and output. In relation to input, it was the Member States who submitted their regional development plans to the Commission, which reviewed the plans for conformity with the Regulation. It then established in agreement with the Member State the Community Support Framework (CSF) for Community structural fund operations, which specified the priorities adopted for Community assistance, the form of the assistance, its duration, and the financing plan. There was then more detailed elaboration of the operational programmes given the green light by the CSF. Shared administration at the input stage was designed to enable Member State preferences as to the projects that would be funded to be taken into account, provided they were consonant with the objectives in the 1988 regulations. In relation to output, it was the Member States who were accorded initial responsibility for ensuring that Community funds for particular projects were properly expended, subject to constraints in Community regulations as to how this should be done, in order to minimize the possibility of fraud and mismanagement. The Commission was also empowered to recover funds that were improperly expended. The application of shared administration to the output stage reflected the fact that the Commission did not possess the resources to monitor in detail all projects that received Community funding, hence the allocation of responsibility to the Member States, while preserving the Commission’s right to take legal action to recover funds improperly expended. The preceding discussion has touched on two examples of shared administration as it operates in relation to agriculture and the Structural Funds, and the rationale for use of this administrative regime. There are moreover different forms of shared administration, as della Cananea has noted.35 Thus in top-down proceedings the initial decision is made by the EU authorities, normally in the form of a legislative act, which is often complemented by more detailed provisions, which in the post-Lisbon world may take 32 33

Art. 130a EEC, now Art. 174 TFEU.

The European Agricultural Guidance and Guarantee Fund, Guidance Section, EAGGF; the European Social Fund, ESF; and the European Regional Development Fund, ERDF.

34

Council Regulation (EEC) 2052/88 of 24 June 1988 on the tasks of the structural funds and their effectiveness and on co-ordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments [1988] OJ L185/9.

35

G. della Cananea, ‘The European Union’s Mixed Administrative Proceedings’ (2004) 68 LCP 197, 199-203.

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the form of delegated or implementing acts. It is then for the relevant national authority to apply these rules at national level. This mode of shared administration has characterized much of the Common Agricultural Policy, in relation to the disbursement of financial benefits and in relation to the levying of penalties for those who acted in contravention of production constraints and the like. A national intervention agency, or some similar body, applies the EU precepts at national level. By way of contrast, in bottom-up proceedings the initial decision in the administrative sequence is made at the national level, with the final decision resting with the Commission. This has been the case with some subsidies granted under the CAP, whereby it is for the national authority to make the initial recommendation as to the grant of the subsidy, with the final decision resting with the Commission.36 The bottom-up approach also captures important aspects of the Structural Funds. EU legislation identified the objectives of the funds,37 one of which was the promotion of under-developed regions. The Member State would then submit to the Commission its regional development plans and priorities, and the operational programmes it wished to pursue in those areas. The Commission reviewed the proposed plans and programmes for conformity with the Regulation. It then established in agreement with the Member State, the Community Support Framework for structural fund operations. The CSF specified the priorities adopted for assistance, the forms of the assistance, its duration, and the financing plan. Hybrid shared administration entails an admixture of the previous two, in the sense that the administrative scheme has dimensions that are both topdown and bottom-up. Thus there were two tracks for gaining approval for new medicines. The centralized procedure was obligatory for biotechnical medicinal products, but optional for others. It was administered by the European Agency for the Evaluation of Medicinal Products,38 aided by specialist committees, and made recommendations to the Commission, which then made the formal decision, albeit normally rubber-stamping the Agency’s recommendation.39 The decentralized procedure placed the authorization decision in the hands of national regulatory authorities, which when receiving an application informed authorities in other Member States, and the latter could object on certain specified grounds. The assumption underlying the decentralized procedure was nonetheless one of mutual recognition. 40 36 37

Ibid, 201.

Reg. 2052/88 (n 34).

38

http://www.emea.europa.eu/.

39

Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products [1993] OJ L214/1.

40

Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use [2001] OJ L311/67, Art. 28.

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The regime of shared administration has posed challenges to which the EU courts and legislature have responded. Thus the EU courts have sought to ensure that the principles of judicial review, in the conceptual form of general principles of law, apply to Member States when they act within the scope of EU law. This can be exemplified by the case law on the right to be heard. The ECJ concluded in Technische Universitat Munchen that the right to be heard in an administrative procedure in the customs context required that the person concerned should be able during the procedure before the Commission to put his case and make his views known. 41 A similar approach was taken in Lisrestal42 in the context of the European Social Fund. The Commission issued a decision to the Portuguese ministry requiring the re-payment of funding to Lisrestal on the grounds that it had mismanaged the funds. The regulation gave no opportunity for the firm to comment before the decision was made, although this was given to the national ministry. The CFI held that the right to be heard as an aspect of the right of defence was applicable in all proceedings initiated against a person liable to culminate in a measure adversely him. It was a fundamental principle of Community law that applied even in the absence of specific rules concerning the proceedings in question. 43 The ECJ, confirming the CFI’s decision, stated that the right to be heard would apply because the measure would significantly affect the applicant’s interests, in this instance the loss of funding. 44 The CFI in Air Inter stated that it must be determined whether the right to be heard had been observed either directly through the applicant’s dealings with the Commission, or indirectly through the national authorities, or through a combination of the two. 45 The EU legislature has also responded to the challenge of shared administration by enactment of procedural rules applicable to administrative proceedings at national level, in order thereby to secure the fairness and effectiveness of the overall administrative regime. This is exemplified by the regime applicable to telecommunications, another area where shared administration prevails. The Framework Directive46 provides detailed rules of administrative procedure applicable to national regulatory agencies administering the EU regulations on telecommunications. Thus Member States must guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organizations providing electronic communications networks, equipment or services. 47 Member States must ensure that 41

Case C-269/90 Hauptzollamt Munchen-Mitte v Technische Universitat Munchen [1991] ECR I-5469, [25].

42

Case T-450/93 Lisrestal v Commission [1994] ECR II-1177; Case C-32/95 P Commission v Lisrestal [1996] ECR I-5373.

43

Cases C-48 and 60/90 Netherlands v Commission [1992] ECR I-565, [44]; Case C-135/92 Fiskano v Commission [1994] ECR I-2885, [39]; Case T-50/96 Primex Produkte Import-Export GmbH & Co KG v Commission [1998] ECR II-3773,[59].

44 45

Case C-32/95 P (n 42) [33].

Case T-260/94 Air Inter SA v Commission [1997] ECR II-997.

46

Directive of the European Parliament and of the Council 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), [2002] OJ L108/33, as amended by Directive 2009/140 [2009] OJ L337/37.

47

Ibid, Art. 3(2).

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national regulatory authorities exercise their powers impartially, transparently and in a timely manner, and that they have adequate financial and human resources to carry out the task assigned to them. 48 The national regulatory authorities must have separate annual budgets. 49 There are in addition provisions designed to prevent decisions of national regulatory authorities being overturned by other bodies, and to protect the members of these national authorities from outside interference, or dismissal where there are no adequate reasons for this course of action.50 The rules on institutional autonomy are complemented by equally detailed provisions concerning process rights for those affected by the regulatory regime. Member States must ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved.51 The Member States have a duty to collect information on the subject matter and number of appeals, the duration of the appeal proceedings and the number of decisions to grant interim measures.52 The process rights are not limited to circumstances where there is adjudication involving an appeal by a particular undertaking. These rights extend to consultation in the making of norms of a more generalized nature. Thus, subject to limited exceptions, where national regulatory authorities intend to take measures in accordance with the Framework Directive or specific Directives which have a significant impact on the market they must give interested parties the opportunity to comment on the draft measure within a reasonable period. The national regulatory authorities must publish their national consultation procedures and establish a single information point through which all current consultations can be accessed. The results of the consultation must be made publicly available, subject to exceptions for confidentiality.53 The Directive on Integrated Pollution Prevention and Control54 provides another example. It stipulates that the public should be given access to information concerning a permit application in order to be able to comment thereon before a decision is reached.55 It is moreover incumbent on Member States to ensure that, in accordance with the relevant national legal system, members of the public concerned have access to a review procedure before a court of 48

Ibid, Art. 3(3).

49 50 51

Ibid, Art. 3a.

Ibid, Art. 3a.

Ibid, Art. 4(1).

52 53

Ibid, Art. 4(3).

Ibid, Art. 6.

54

Council Directive 96/61/EC of 24 September concerning integrated pollution prevention and control [1996] OJ L257/26; Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) [2008] OJ L24/8.

55

Dir. 2008/1 (n 54) Art. 15.

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law or other independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive, provided that they have a sufficient interest, or maintain that there has been impairment of a right, where the administrative procedural law of a Member State requires this as a precondition for bringing an action.56 A corollary of this obligation concerning access to justice is that Member States must ensure that practical information is made available to the public on access to the administrative and judicial review procedures.57 This Directive was amended and strengthened by a more general Directive concerned with public participation and the environment.58 In addition to this amendment the Directive makes provision for public participation in a number of areas. Member States have an obligation to ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of plans or programmes in a wide variety of areas concerned with the environment, including water, hazardous waste, packaging and packaging waste, and air quality.59 The Member State must ensure that the public is informed about proposals, their right to participate and the body to whom comments should be sent.60 The Directive emphasizes that the public must have this opportunity to comment while all options are open and before decisions on the plans are made; that the resultant decision should take account of the comments received; and that reasons should be given for the decision reached.61 It is for the Member State to identify the public entitled to participate for these purposes and the detailed arrangements for the participation.



7 Conclusion

Legal subjects evolve over time and this is no less true of EU Administrative law than other subjects. The evolution may bring changes to the underlying foundation of the subject, thereby leading one to describe the ‘tradition’ that currently informs the subject in somewhat different terms than hitherto. 56 57

Ibid, Art. 16.

Ibid, Art. 16(5).

58

Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156/17, Art 4. See also, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance [2011] OJ L26/1.

59

Dir. 2003/35 (n 58) Art. 2(2).

60 61

Ibid, Art. 2(2)(a).

Ibid, Arts. 2(2)(b)-(d).

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This may well occur as a result of initiatives for a general law to regulate administrative procedure, an issue which has been debated for some time in the academic literature.62 The arguments in favour of such a law are that:63 it can enhance the clarity of, and facilitate access, to the law; increase the coherence of principles and procedures; set up default procedures to fill gaps in existing law; and establish the functions of administrative procedure. A general law could therefore function as a boilerplate, which could be supplemented by more sectorspecific norms that address the needs of particular subject matter areas. The detailed contours and content of such a law remain to be determined. Thus, the Committee on Legal Affairs of the European Parliament passed a resolution arguing in favour of the development of such a law, which would apply to all EU institutions, agencies, offices and bodies in relation to direct administration and individual administrative decisions,64 and this has been affirmed by resolution of the European Parliament.65 The proposed EU law would establish default principles of administrative procedure where no sectorspecific rule existed, but such sectoral rules should not provide less protection than the general procedural law. The current proposal is for a set of principles such as legality, proportionality, non-discrimination, legitimate expectations and the like to be set out a relatively high level of generality, with more detailed specification of the process rights that should be applicable in terms of hearings, access to the file, reason giving, rights of the defence and the like. There is, moreover, a research network on EU Administrative Law, ReNEUAL,66 which is currently engaged in research designed to produce best practice guidelines and restatements on EU procedural law, which may lead to a more formal law. The research covers procedures relating to rule-making, contracts and information management as well as individualized decisions. The outcome of such deliberations remains to be seen, but if such a law were to be produced, more especially in the more extensive form proposed by ReNEUAL, it would perforce reshape what constitutes the EU Administrative law tradition. 62

European Ombudsman, The European Code of Good Administrative Behaviour (2005), available at http:// www.ombudsman.europa.eu/resources/code.faces; C. Harlow, ‘Codification of EC Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot’, (1996) 2 ELJ 3; M. Shapiro, ‘Codification of Administrative Law: The US and the Union’, (1996) 2 ELJ 26; J. Ziller, ‘Is a Law of Administrative Procedure for the Union Institutions Necessary? Introductory Remarks and Prospects’, European Parliament, DG for Internal Policies, 2010; Oriol Mir-Puigpelat, ‘Arguments in Favour of a General Codification of the Procedure Applicable to EU Administration’, European Parliament, DG for Internal Policies, 2011, http://www.europarl.europa.eu/activities/committees/studies.do?language=EN; http:// www.reneual.eu/.

63

Ziller (n 62); Mir-Puigpelat (n 62).

64

Committee on Legal Affairs, Draft Report with Recommendations to the Commission on a Law on Administrative Procedure of the European Union, 2012/2024, 21 June 2012, Rapporteur Luigi Berlinguer.

65

European Parliament Resolution of 15 January 2013 with recommendations to the Commission for a Law on Administrative Procedure, 2012/2024 INI, P7-TAPROV(2013)0004.

66

http://www.reneual.eu/.

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New Public Management: A New Common European Tradition Athanasios Gromitsaris

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There is a paradox in the title of this article: If New Public Management (NPM) is new, can it already be a tradition? If NPM is already a tradition, and particularly, a common European tradition, what are the traits a phenomenon should possess in order to be considered a tradition, notably a legal one?1 After having defined the concept of legal tradition that forms the basis of my analysis, I turn to the interrelation between national administrative law traditions and NPM. Based on the analysis of the characteristic qualities of administrative law systems in the EU, I then go on to discuss the impact of NPM-principles on legal regulatory modes and legal reasoning: the ‘genetic code’ of administrative law. Since the core issue of the article is whether NPM has become a new common European tradition from the viewpoint of administrative law as part of public law, I follow up with giving examples of the double role played by public law as an obstacle to NPM-ideas and as a facilitator and initiator of NPM-led administrative change. Immediately after this, two specific NPM-ideas, ‘efficiency’ and ‘independent assessment of governmental action’ are singled out, due to their wide endorsement by the administrative law systems in various jurisdictions. Before concluding with a short discussion of my results, I investigate to what extent NPM plays a role as a driver for reform in the crisis states of the Euro-area having agreed to an economic adjustment programme, notably Greece and, to a lesser degree, Portugal. Ireland had implemented NPM-led reforms before the crisis.



1 Tradition, Reproduction and Deviation

Public law traditions in Europe are part of the evolution of European legal systems. By evolution of legal systems we mean a set of cyclical processes that includes variation, selection, and stabilisation or retention 2 of distinguishing features and qualities. The process of selection does not of necessity impose the choice of the best possible norms, values, decisions, legal tools, typified facts, or statutory interpretations. Selections often occur not because they are optimal, but because they can easily be retained or they are easily replicated within different contexts of normative legal argumentation. From this evolutionary perspective, a legal tradition combines the Roman ‘opinio juris sive necessitati’3 with the capacity of absorbing randomness and deviation. Tradition, and in particular, legal tradition, is never mere repetition. The possi1

OECD, ‘Public Administration after ‘New Public Management’’ (OECD Publishing, Paris, 2010) http:// dx.doi.org/10.1787/9789264086449-en; Also see D. Lamarzelle, ‘Le Management public en Europe’ (January 2008) http://www.unilim.fr/prospeur/fr/prospeur/telechargements/management_public.pdf and B. Girard, ‘Management dans le secteur public’ Sciences P’ (October 2005) http://www.bernardgirard.com/Managementpublic.pdf. All online resources were accessed on September 10, 2012.

2

For this understanding of evolution see chapter 6 in N. Luhmann, Das Recht der Gesellschaft (Frankfurt am Main 1993).

3

D. Bederman, Custom as a Source of Law (1st edn Cambridge University Press 2010).

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bility of deviation is the only way to establish a relation between social order and morality or law. Therefore, reproducible regularity is never enough. 4 In common law, for example, ‘strangely enough, the great ‘principle’ that like cases should be treated alike’ is thought of as the ‘most powerful engine of change’; ‘courts acting on that principle could change law, indeed make law, without arrogating to themselves undue power because they always seemed to apply past precedents or principles in new ways to situations made new by the world around them.’5 Legal tradition does not exclude legal pluralism either.6 Furthermore, every legal tradition has an objective and a subjective aspect: customs, habits, norms, values and legal practices must, in order to exist and reproduce themselves, pass through the needle’s eye of individual behaviour.7 According to this concept of tradition the adoption of NPM-ideas does not need to (but can) serve a specific purpose or ideology. The ideological dimension of NPM is observer-dependent. One can have a universalistic and evangelical approach to NPM aimed at fostering a process of convergence between states overriding distinct political and cultural characteristics.8 More often than not, people see market-based reform tools as political issues representing neo-liberal thinking.9 Privatisation programs are seen as a ‘selling off’ of ‘our silverware and valuable porcelain’, privatisation in tax administration is felt to be a slipping back to ‘tax farming’. This highlights the importance of administrative law as the only tool capable of establishing trust in the impartiality of institutions 4

It is through the possibility of deviation that Heraclit introduces moral authority: ‘The Sun will not overstep his bounds, for if he does, the Furies, the bodyguards of Justice, will seek him out’. L.M. Slatkin, ‘Measuring Authority, Authoritative Measures: Hesiod’s Works and Days’, in L. Daston and F. Vidal (eds), The Moral Authority of Nature 1 edn The University of Chicago 2004).

5

G. Calabresi, A Common Law for the Age of Statutes (The Lawbook Exchange, Ltd. Union, New Jersey, 1999) 13.

6

When non Roman local legal rules and concepts of the pluralistic legal world that was created by Roman imperial action were introduced into the Roman legal system, the language shifted from a vocabulary of law to a vocabulary of custom permitting local practices to stand; the foreign origin of these new elements was not acknowledged, and they were, instead, often explicitly identified as Roman. See C. Ando, Law, Language, and Empire in the Roman Tradition. Empire and After (Philadelphia: University of Pennsylvania Press, 2011).

7

It is the combination of ethos (ἔθος) with êthos (ἦθος). The former has both normative and descriptive uses, it implies a sensus communis and a locus communis, and it has an aspect of reliability and trustworthiness; its components are judgment, values and feelings. The latter is older, meaning originally an accustomed place, haunt, or abode, and designating personal and moral character. R. Plant, Community: Concept, Conception, and Ideology, Politics and Society 8, no. 1 (1978) 80; H.G. Liddell and R. Scott. A Greek-English Lexicon (9th edn Oxford. Clarendon Press 1940).

8

G.A. Larbi, ‘The New Public Management Approach and Crisis States’ UNRISD Discussion Paper No. 112, (September 1999) 35, http://www.unrisd.org/80256B3C005BCCF9/%28httpPublications%29/5F28 0B19C6125F4380256B6600448FDB?OpenDocument.

9

M. Temmes, ‘The Failures of the Administrative Reforms’ (26th June 2003) 10 http://webh01.ua.ac.be/ pubsector/lisbon/paper_lisbon_temmes.pdf.

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and in safeguarding the public interest despite the use of instruments based on profit-seeking. Furthermore, in order for NPM-principles to become part of European public law traditions it is not enough to pass the filter criteria of national and European legal scholarship. Even if legal scholarship would pretend to be a sort of politological or economic NPM-discourse this would not incorporate NPM into legal tradition. Legal scholarship can learn a lot from NPM and it has the ability to introduce NPM-ideas into the legal discourse, but it cannot make them legally binding by itself. Adoption of NPM-ideas is successful only if such ideas are accepted as one of the premises of legal argumentation and legal practice.



2 New Public Management: A Stranger in the House of Public Law

NPM-ideas have been used to reform administration and management in government in a variety of countries, notably of the Anglo-Saxon world. Almost everywhere public sectors have been infused by NPM at least in the form of a ‘new vocabulary’. The reform of the governance of police organisations in various European countries is, for example, ‘associated with jargon describing steering instruments, such as ‘performance management’ and the use of ‘quality systems’.10 A specific factor driving NPM-ideas has been international organisations like the IMF, the World Bank and the OECD. The lending conditions of the IMF and the World Bank in the area of transitional and developing countries have promoted core NPM-principles. NPM became influential enough to enjoy the privilege of becoming a guest in public law’s houses across continental Europe. Although it seems that the guest has worn out his welcome, the memory of the stories he told haunts the house. NPM is a token for change in the style of management in the public sector, a symbol for conceptions of modernization, and a label to describe a series of reforms implemented in various countries since the 1980s.11 NPM-innovations require attention because they affect significantly the ‘cathedral’ architecture of European administrative law systems, which were being slowly and meticulously erected over the 19th and 20th century. The main structures of these cathedrals relate to public bodies and their organisational resources, to a culture of legal argumentation and rationes decidendi, and to institutionalised ways of teaching administrative law. Nowadays, NPM-type reforms are part of the structural adjustment programmes in the crisis countries of the Euro-area. National administrative law traditions 10

A. van Sluis, A. Ringeling and B. Frevel, ‘Evolving Patterns in the Police Systems of North Rhine-Westphalia, The Netherlands and England & Wales’, German Policy Studies, vol 5 2 (2009) 145, 149. http:// www.spaef.com/file.php?id=1139.

11

J.P. Pfiffner, ‘The American Tradition of Administrative Reform’, in Y.H. Cho and H.G. Frederickson (eds), The White House and the Blue House: Government Reform in the United States and Korea (Lanham, MD: University Press of America 1998).

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reacted in different ways to NPM-ideas. The result of NPM-influence was not a complete transformation of the public sector, but, rather, a sort of ‘a mix of the traditional structures and the new ideas of NPM’12 or a sort of a ‘cherry picking of reforms inspired by NPM’.13 Some people call this the ‘re-emergence’ of Weberian public administration, or the emergence of ‘Neo-Weberianism’.14 The development of English administrative law during the last fifty years is closely linked to the principles and rules applied when controlling administrative activity under judicial review, the central grounds for judicial review being: illegality, irrationality and procedural impropriety. NPM introduced major innovations into administrative law amongst which the creation of independent agencies, privatisation, deregulation, the importance of public contracting and audit systems providing evaluation of administration ‘products’. In France, administrative law is based on the judge-made law of the Conseil d’Etat. Traditionally, the application of general legal principles leads to fixing a framework for reasonable administrative action. French administrative law has recently experienced an important influence coming from constitutional, European and international law, and a critique stemming from the administrative science. More recently, legislation governing public finance (LOLF) which was effective from 2006, instituted a process of public sector management based on policy performance as measured by quantitative indicators.15 The LOLF is aimed at ensuring budgetary discipline and at establishing a link between the multiannual financial framework and the annual budgetary procedure. A framework of measures is established designed to reform the monitoring and control system of French administrative law. The RGPP (Révision générale des politiques publiques) is part of a series of reform initiatives in French administration. It is intended to achieve budget savings and to develop an effective approach to the multiannual programming of public finances. The reform of territorial administration of the State (RéATE) is a variant of the General review of public policies (RGPP). These reforms mark a turning-point in the presentation of the budget and the program of activities, highlighting objectives and expected results and introducing performance indicators. German administrative law is mainly oriented towards the protection of individual interests. Recently, a shift away from the control perspective towards a perspective of governing took place. The main ideas behind this shift are efficiency of law implementation, economic use of resources, and acceptance of administrative decisions by those affected. A set of reform activities was 12

J.F. Ferraz Esteves De Araújo, ‘NPM and the Change in Portuguese Central Government’, International Public Management Journal, vol 5, 3 (2002) 223 and 235.

13

N. Hardiman and M. MacCárthaigh, ‘The Segmented State: Adaptation and Maladaptation in Ireland’ (2008) UCD Geary Institute Discussion Paper Series,20.

14

According to the concept of C. Pollitt and B. Bouckaert, Public Management Reform: A Comparative Analysis (2nd edn Oxford: Oxford University Press.2004) 99-100.

15

See from the viewpoint of French administrative law the Dossier: ‘LOLF et réforme de la gestion publique’ L’Actualité Juridique. Droit Administratif (AJDA) (13th March 2006) 10/2006.

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described as the New Steering Model (Neues Steuerungsmodell), which can be considered as ‘the German variant of New Public Management’.16 It was promoted in the early 1990’s by the largest local government association in Germany17 and amplified by reunification that made new sources of revenue, especially from privatisation, necessary. The Hartz I-IV reforms to the German labour market (2002-2010) show the interplay among public sector, private sector, trades unions, and citizens in German society: a public governance system based on consensus and compromise.18 From an economic viewpoint, industry, notably the car-industry, could make extensive use of ‘outsourcing’ and ‘off shoring’.19 Economically, Germany’s institutional reforms represent an adjustment to global capital and product markets: changing a bank dominated financial system, tailoring labour relations and agreements to firm-specific needs, creating deviation possibilities from collective agreements along with the possibility to pay lower wages, firm level pacts or alliances, wage reduction investment and employment agreements, productivity enhancing investment and work redistribution employment agreements, and codetermination that traditionally makes labour an important agent in firm-level governance.20 Furthermore, the first and second stage of the reform of the German federal system (2006, 2009) introduced elements of competitive federalism and fiscal discipline at all levels of government. Public procurement law has been used in order to separate customer and supplier functions, to initiate competition among public and private service providers, or, at least, to use simulated competition based on benchmarking and comparison of service standards and prices.21 Greece is worthy of note in this context because it has been considered since the beginning of the sovereign debt crisis as probably the prime example of a ‘failing state’ and a ‘case study’ for evaluating both the policy mix of the economic adjustment programme and the reform capacity of Greek society.22 16

C. Reichard, ‘Local public management reforms in Germany’, in Public Administration, 81, 2 (2003) 345, 348.

17

 Kommunale Gemeinschaftsstelle für Verwaltungsvereinfachung, KGSt 2003.

18

OECD, ‘Better Regulation in Europe: Germany’ OECD 2010, 60 www.sourceoecd.org/governance/9789264085879.

19

Informative: H.-W. Sinn, Die Basar-Ökonomie (Berlin, Ullstein, 2005) (extended workbench concept, combination of expensive but flexible labour force at home with cheaper workforce abroad). See for a French reading of this: H. Brodersen, Le ‘modèle allemand’ à l’exportation: pourquoi l’Allemagne exporte-t-elle tant ? Note du Comité d’études des relations franco-allemandes (Cerfa) 57 Novembre 2008.

20

R. Deeg, ‘The Comeback of Modell Deutschland? The New German Political Economy in the EU’, German Politics 3 (September 2005) vol 14, 332.

21

B. Adamaschek, ‘Leistungssteigerung durch Wettbewerb in deutschen Kommunen – Der interkommunale ‘Leistungsvergleich’, in F. Naschold, M. Oppen and A. Wegener, Innovative Kommunen, Internationale Trends und deutsche Erfahrungen (Stuttgart, Kohlhammer, 1997) 107.

22

K. Featherstone, ‘The Greek sovereign debt crisis and the EMU: A failing state in a skewed regime’, Journal of Common Market Studies 49 (2) (2011) 193.

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This is not an explanation of the debt crisis, Greece is not the only state in crisis, but the country is characterised by a particular resistance to reform.23 Greek administrative law usually depicts the public sector by using the elements of a Weberian and Napoleonic state: Authority is delimited by rules, there is an office hierarchy, management of the office follows general rules and requires training, and there is a distinction between the public and the private spheres, between the public interest and party interests. This description corresponds to a formal black letter law-reality that is only partly implemented. At the level of law in action, however, modern rule of law state instruments are used for patrimonial24 purposes (the public sector is used as a means of patronage to create networks of political support following their own self-perpetuating distinctive logic). Corruption and tax evasion25 are systemic in nature (and not simply a deviation from what is normal, expected or typical).26 The public sector adopts the rhetoric of reform, but is unable and in some cases unwilling27 to implement it.28 Under these circumstances the difficulty is to identify and to reform the reformers29, especially those that stand to lose from real reforms. This results in a special 23

There is a tradition since the inception of the Greek State (in 1830) of factions and clans looking out for their own interests on the detriment of public interest. Whole regions objected to paying taxes, since the local chieftains had been accustomed to governing their own territory: E. Thomopoulos, The History of Greece (1 edn Greenwood 2011) 72.

24

N. Diamandouros, ‘Politics, Culture, and the State: Background to the Greek crisis’, in O. Anastasakis and D. Singh (eds) Reforming Greece: Sisyphean task or Herculean challenge? (SEESOX March 2012) 9-18.

25

N.T. Artavanis, A. Morse and M. Tsoutsoura, ‘Tax Evasion Across Industries: Soft Credit Evidence from Greece’ (25th June 2012) Chicago Booth Research Paper No. 12-25; Fama-Miller Working Paper. Available at SSRN: http://ssrn.com/abstract=2109500.

26

‘(T)he effective application of the law remains a matter of concern in Greece, with prosecution and adjudication of corruption offences suffering long delays, remaining passive and leading to a widespread impression of impunity’: Groups of States against Corruption (GRECO), Third Evaluation Report, Compliance Report on Greece, Adopted by GRECO at its 56th Plenary Meeting (Strasbourg, 20-22 June 2012) http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoRC3%282012%2910_ Greece_EN.pdf, para 30.

27

‘(I)t is striking that no progress has been recorded either in respect of the few recommendations that would not necessarily require changing the law.’ Ibid, para 58.

28

From this point of view the reform experience of developing or transitional countries is valuable for Greece. It is recommended ‘that matters of constitutional governance should be dealt with before matters of administration; that legal frameworks should be in place before dealing with administrative arrangements; that a functioning core civil service is a precondition of more distributed public governance arrangements; and that rationalizing rules and enforcing compliance should come before starting to reform the rules’ in D. Cepiku and C. Mititelu, ‘Public Administration Reforms in Transition Countries: Albania and Romania Between the Weberian Model and the New Public Management’ Transylvanian Review of Administrative Sciences, No. 30E/2010 55-78, 74.

29

The Irish experience also shows the limits to the self-reforming potential of the public sector, albeit in a different context. ‘The fact that public service reforms are driven by senior public servants undermines the potential for the successful implementation of ‘painful’ reforms’ in N. Hardiman and M.

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role for administrative law: from an instrument that is often (mis-) used as an obstacle to reforms, law has to turn into a tool for legitimate change. NPMelements, notably the establishment of a series of independent authorities (AntiCorruption Authority, Reform Authority, Tax and Revenue Authority, Privatisations Authority) can help to successfully implement state reforms by reducing party-political influence and hindering the patronage system to infiltrate institutions crucial to the functioning of a rule of law state. An adequate regulatory framework should also be set in place so that institutional autonomy does not tend to wax and wane over time depending on which party is in power. Terms of office should, for instance, be extended beyond legislative periods, preferably beyond two of these. As I will argue in this paper, the economic adjustment programme for Greece contains a number of instruments from the NPM-tool kit.



3 NPM-Impact on the ‘Genetic Code’ of European Administrative Legal Systems

NPM-ideas are often described as a series of ‘challenges’ for the public sector and administrative law: an infrastructure and better governance challenge, a management and leadership challenge, a participatory and an implementation challenge.30 Following Schmidt-Aßmann’s ‘twelve fields’ where ‘national traditions (of administrative law) meet common principles’ we can indicate the impact of NPM on the ‘genetic code of all European administrative legal systems’.31



3.1 Administrative Law’s Autonomy

With regard to administrative law’s autonomy, NPM-ideas invigorate an interdisciplinary approach, opening a door to economic thought and governance concepts, and hence, embodying a threat to a purely ‘juristic method’ in administrative law. Emphasizing markets and competition leads to a predominance of economic reasoning. The influence of economic thought became visible in German environmental law where legal imperatives (orders and prohibitions) were complemented with measures of indirect steering (so called economic instruments) aimed at changing the incentive structure of people’s behaviour. However, environmental law developed the capability of using market-based instruments without giving up legal rationality, as the example of national authorities entrusted with the implementation of European emissions trading shows. This means that legal market-based instruments assure a strucMacCárthaigh, ‘The Segmented State: Adaptation and Maladaptation in Ireland’, (2008) UCD Geary Institute Discussion Paper Series 21. 30

See for e.g. R. Boyle and P.C. Humphreys, ‘A New Change Agenda for the Irish Public Service’ CPMR Discussion Paper 17, 12, 67-70; http://ipa.ie/pdf/cpmr/CPMR_DP_17_A_New_Change_Agenda.pdf.

31

See his contribution in this volume.

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tural coupling of legal certainty and transparency, competition neutrality and low transaction costs, i.e. they combine legal efficiency with economic success.



3.2 Administrative Tasks

Concerning administrative tasks, NPM-ideas push towards abandoning state regulation of private economy and developing, instead, a new type of administration, the so called ‘guaranteeing administration’, lean government or ‘état stratège’. NPM also increased privatisation of activities which were traditionally the exclusive task of the public sector. Different forms of competition are used to stimulate reform processes in the public sector (market based competition via tenders, customer/supplier divide, non-market forms of comparing services). Introducing competition through privatisations led, however, sometimes paradoxically not only to better conditions for, but also to greater distortions of competition, for example, ‘between exempt, nontaxable and taxable services’.32 Administrative law reacted to ‘lean government’ by setting in place mechanisms of responsive or regulated self-regulation. The private sector’s participation in performing public services inevitably results in a loss of the public sector’s power to direct and control. New forms of preventive and accompanying supervision become necessary: the establishment of duties to inform, report and document, corporate self-monitoring by means of audits, and introduction of quality management systems and industry specific ‘codes of best practices’.



3.3 Administrative Organisation

Regarding administrative organisation, NPM-ideas are a threat to hierarchical steering methods favouring plurality, reducing ministerial influence and introducing independent authorities. Due to the transformation of the hierarchical management structure serious tensions arose between central governmental and new or regional organisational units. Competency is a problem33, for instance, when across the border benchmarking takes place.34 The concept of competency derives from the legality principle.35 The separation thesis between 32

Communication from the Commission to the Council and the European Parliament, ‘A Strategy to Improve the Operation of the VAT System Within the Context of the Internal Market’ (Brussels, 7th June 2000 COM, 2000, 348 final) para 2.1, http://eur-lex.europa.eu/ LexUriServ/ LexUriServ.do? uri=COM:2000: 0348:FIN: EN: PDF.

33

The terms- competence, competency and competencies are used in different ways in the literature, see: M. Butler and S. Fleming, ‘The Effective Use of Competencies in the Irish Civil Service’ (IPA 2002) 13-15 http://www.cpmr.gov.ie/Documents/The%20Effective%20Use%20of%20Competencies.pdf.

34

A. Kouzmin et al. ‘Benchmarking and Performance Measurement in Public Sectors, Towards Learning for Agency Effectiveness’ in The International Journal of Public Sector Management, vol 12, 2 (1999) 121-144.

35

‘Competency is not to be confused with ‘competences’ which in public management terms mean the capacities and skills of individual civil servants. An administrative body’s competency is the ability provided to it by the rules of the legal system to enact legal (individual or general) rules or to contribute

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making policy and implementing it leads to establishing new synergies and arrangements for division of labour within the public sector. Disaggregation of organisational units in the public sector takes place through the creation of independent agencies, the transformation of departmental organisations into public enterprises, decentralisation, or the empowerment of user groups. The decision on establishing and choosing the location of an independent authority quite often has negative externalities throughout the rest of the public sector reflecting or triggering ‘turf wars’ between public authorities. The inception of a new institution necessitates the deployment of coordination mechanisms and strategies, taking organisational integration measures and enabling cooperation with relevant stakeholders; all these measures can amount to competency and jurisdiction problems.36 The lack of legal competency to take administrative action is one of the grounds of judicial control along with disregard of form and procedure, and excess of jurisdiction. According to the OECD review of the central administration of Greece ‘ineffective governance and failures to reform are linked to excessive legal formalism’ which ‘stands in the way of effective and efficient governance’37: Policy actions which are not accompanied by a legal text are according to this review discouraged, and processes are observed to the detriment of the policy substance of civil service work. However, the OECD review’s assumption that ‘legal formalism is partly the by-product of a legal system based on civil law, which traditionally emphasises the need for a comprehensive and detailed structure of laws and regulations to cover all issues’ is, partly, a misrepresentation of what is going on in civil law jurisdictions. This type of legal formalism describes a pathological situation and not the distinctive features of public and administrative law in civil law countries. As to the comparison with Greece (where there is a gap between formal definitions of policy responsibilities and actual practices) one should take into account that legalism is precisely misused to serve (not de jure, but de facto) the needs of a ‘neo-patrimonial’ public administration.38 Notwithstanding these remarks the OECD review has highlighted a neuralgic point concerning the function of fragmented competency structures of public authorities in relation to the need for ‘policy coherence’ and ‘joined up governto the enactment of such rules, or even undertake physical operations.’ See OECD Greece: Review of the Central Administration, OECD Public Governance Reviews (OECD Publishing 2011) http://dx.doi. org/10.1787/9789264102880-en referring to C. Yannakopoulos, ‘L’apport de la notion de fait administratif institutionnel à la théorie du droit administratif’, Revue interdisciplinaire d’études juridiques vol 38 (1997). 36

The Federal Government, A foundation for better law: five years of bureaucracy reduction and better regulation. 2011 Federal Government Report pursuant to Section 7 of the Act on the Establishment of a National Regulatory Control Council, April 2012.

37

OECD Greece: Review of the Central Administration, OECD Public Governance Reviews (OECD Publishing 2011) http://dx.doi.org/10.1787/9789264102880-en: at p. 27.

38

‘(M)inistry-based silo vision of governance, leaving little room or inclination for co-operation across and even within ministries’ OECD Greece: Review of the Central Administration (n 35) 26, 53.

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ment’. ‘This means that policies need to be assessed at an increasingly aggregate level, and that related laws and regulations cannot be addressed in isolation.’39 OECD encourages regulatory reform in all European countries. The emergence of regulatory oversight bodies40 working in parallel or even competing against one another on better regulation governance became necessary due to the increased complexity of rulemaking. The reform faced bureaucratic opposition because of infringements to existing structures of competency and ministerial responsibilities. Separating political responsibility from technical assessment and splitting powers horizontally among different oversight bodies is a possible reaction to this problem. 41 NPM helped fine-tune existing administrative competency structures by introducing distinctions that have become commonplace. The purchaserprovider divide serves as a means of avoiding a conflict of interest and promoting fair competition between in-house teams and outside contracts. Competency can further be related to the rise of conflicts of interest where the public sector has regulatory responsibilities to the public at large for the safety and quality standards of services while it is at the same token engaged in service delivery through its ownership of state owned enterprises. NPM made it clear that good management of public enterprises needs a separation of the responsibilities of governance, ownership and management (policy, regulatory and shareholder functions), implying the existence of rules and procedures for public sector involvement in corporate decision making and a dissociation of the roles of public sector as owner and public enterprise executive. 42 The more convincing corporatisation is in creating an independent legal identity for the public enterprise, the greater the success in separating the different roles of the public sector in this field.



3.4 Administrative Legitimacy

In terms of administrative legitimacy administrative law keeps formal ‘chains of legitimacy’ in perspective, whilst introducing a pluralist view of legitimacy at the same time. As regards the priority and importance given to administrative statutes in the various national administrative law traditions, NPM seems to focus on the effects of rules, rather than on whether these rules are particular laws and regulations or part of a codification. According to NPMdoctrine, administration should be driven by missions not rules. 43 As one of 39

Ibid, 55.

40

C. Cordova-Novion, and S. Jacobzone, ‘Strengthening the Institutional Setting for Regulatory Reform: The Experience from OECD Countries’ OECD Working Papers on Public Governance 19 (OECD Publishing February 2011) http://dx.doi.org/10.1787/5kgglrpvcpth-en.

41

Ibid.

42

Corporate Governance of State-Owned Enterprises- Accountability and Transparency, A Guide for State Ownership (OECD Publishing, 30th September 2008).

43

D. Osborne and T. Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (New York: Penguin Books 1993). First published Reading, MA, Addison-Wesley, 1992.

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the main strands of NPM derives from new institutional economics, rules and institutions are often used as synonyms while this is not the case from a legal standpoint. NPM deems it necessary to lay stress on the relationship between administrative rules and performance. The term ‘rules’ refers here not merely to formal rules. Rather, rules are considered as part of a mixture of formal and informal constraints and enforcement characteristics that define the choice set and determine performance. This is important for the NPM-stance towards codification.



3.5 Administrative Statutes

Administrative statutes oscillate in the administrative law systems of Europe between particular laws and codification. A codification is usually considered as the main source for locating the laws and regulations of a particular branch; it is also a means for abrogating any conflicting rules of this branch preceding the codification. As rules are ‘translated’, from the NPMviewpoint, into problems of information asymmetry, of credible commitments, and into moral hazard and hold-up problems, NPM does not favour codification due to its perceived lack of flexibility. If there is a codification of control mechanisms, this happens under conditions of fragmentation and specialisation. It would be wrong, however, to see codification as the preferred instrument of legal regulation in civil law countries. The problem transcends the civil law/ common law divide. French administrative law is traditionally case law, and the case law of the German administrative courts is constantly evolving. The aim of codification in civil law countries is not to set the legal status quo (rules that are valid at a certain point in time) in stone. Rather, it creates a new starting point. Besides, NPM-principles themselves have already had the benefit of codification. In the Irish Public Service Management Act of 1997 the principles of NPM are enshrined in legislation facilitating decentralisation and devolution of authority and responsibility and codifying a commitment to change also for the future. 44



3.6 Criteria of Administrative Action

As far as the criteria of administrative action are concerned, European administrative legal systems shift between legality, efficiency, acceptance and other normative orientations. The NPM-promise of running the public sector like private businesses is based mainly on efficiency, effectiveness and clearly definable goals that can be linked with performance indicators. The applicability of performance indicators for example to police organisations is a disputed topic. In the US many police forces follow the CompStat management 44

G. Robbins and I. Lapsley, ‘NPM and the Irish Public Sector: From Reluctant Reformer to Statutory Codification’, in J. Guthrie et al. (ed), International Public Financial Management Reform: Progress, Contradictions, And Challenges (1 edn, Information Age Publishing, 2005) 109 and 123.

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model introduced in 1994 in the New York Police Department. 45 In the UK police performance is measured using the ‘Assessments of Policing and Community Safety (APACS)’. APACS provides the Home Office with the capacity to monitor and assess performance by geographic area, organisation (police force), partnership (crime and disorder reduction partnerships), and policy (neighbourhood policing). 46 The Netherlands implement ‘results-based agreements’ intended to set out policy targets. A system of performance-related pay for the police forces is linked to the agreements. A covenant can contain target results ‘improvement of police accessibility and availability and the level of public satisfaction about dealing with the police’. 47 In Germany, some concrete examples of NPM-led reforms are centralisation of internal tasks such as procurement, introduction of flexible and decentralised shift work systems management and phasing-out of intermediate and midlevel administrative bodies in the statewide police structural system (Landesmittelbehörden). However, such changes increased the need for coordination and control. Finally NPM-ideas were adopted only partially and the interest in comprehensive NPM-reforms has declined. 48 The extent to which performance indicators are compatible with legal reasoning, but also with teaching on legal reasoning in the field of administrative law, is an important source of tensions between economic and legal thinking. Performance indicators are norms that are set, for example, by the OECD: using an overview of good practices for better regulation ‘in a comprehensive transnational evaluation exercise’ provides ‘normative hints for defining the principles that in turn are standards of checklists, used by the OECD in its peer review of regulatory processes and governance’. 49 Reference checklists for regulatory decision making are focused on the development of new regulations in a generic manner. This begs the question of whether the use of performance indicators and regulatory checklists has an impact on legal reasoning and is de facto instituting a change in legal education sectors. Legal education, whether it 45

H. Ozdemir, ‘Compstat: Strategic Police Management for Effective Crime Deterrence in New York City’, IPES/DCAF Working Paper No 30 (March 2011) http://www.ipes.info/workingpapers.asp.

46

Assessments of Policing and Community Safety (APACS), Report of the Chief Constable to the Chair and Members of the Strategic Policing & Performance Panel (27th September 2007) http://www. clevelandpa.org.uk/admin/uploads/attachment/27_September_2007-Assessment %20of%20Policing %20and%20Community%20Safety.pdf; For a critical view see T.G. Shilston, ‘One, Two, Three, What Are We Still Counting for? Police Performance Regimes, Public Perceptions of Service Delivery and the Failure of Quantitative Measurement’ Policing 2(3) (2008) 359.

47

Policing in the Netherlands (January 2004) 13, 14. http://www.politie.nl/ ImagesLandelijk/ politie%20in% 20 nederland%20engels_tcm31-85725.pdf; Also L. Cachet and P. Marks, ‘Police reform in The Netherlands: A Dance Between National Steering and Local Performing’, German Policy Studies, vol 5, 2 (2009) 91, http://www.spaef.com/file.php?id=1137.

48

R. Ritsert and M. Pekar, ‘New Public Management Reforms in German Police Services’, German Policy Studies vol 5, 2 (2009) 17, 37-39 http://www.spaef.com/file.php?id=1135.

49

Investment Climate Advisory Services, World Bank Group, ‘Better Regulation for Growth. Governance Frameworks and Tools for Effective Regulatory Reform’ (2010)13.

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represents a rather theoretical or a craft approach to law (vocational education), reflects a legal methodology that even if it is made by men of business for men of business cannot be replaced by a normative system of performance indicators.50 Indicators and checklists serve to provide normative guidance or strategic information for administrative action. Nonetheless, they are not legal tests; they are not methods of legal evaluation used to resolve a legal case. They could become, at best, key concepts51 mediating between legal and extra-legal points of view. If NPM-induced performance indicators and checklists are rejected from a legal point of view, what is negated is not the content of the normative standard, (this is the product of an extra-legal rationality), but its case-specific relevance and applicability. Instead of assuming a necessary structure of the NPMprescriptive discourse, administrative law adopts the view that NPM-induced normative standards are mere objects of comparison, providing practical experience of rationality for administrative activity. Administrative law transforms NPM-normative standards to normative propositions, i.e. NPM-norms are seen as factual situations, they posit questions of fact, and they are not self-declared legal principles. Administrative law identifies which standards of managerial rationality and which best management practices exist or do not exist. They are then legally evaluated and selected or not. This is also closely bound to questions of interrelation between performance indicators and legality.



3.7 Legality of Administrative Action

The legality of administrative action in various European jurisdictions oscillates between procedural and substantive concepts of legality. According to NPM-doctrines political accountability is more focused on output than process. The difficulty here is that even though the importance of efficiency and effectiveness in the public sector cannot be denied, other norms and values, covered by substantive and/or procedural legality, play an equally important role within the context of administrative law. It is not clear to what extent they are considered within the NPM-approach to the public sector. On the other hand, the NPM-conception of regulation, as it is expressed in the OECD

50

The World Bank’s ‘Doing Business’ Project provides country reports; it ‘encourages countries to compete towards more efficient regulation’ and ‘offers measurable benchmarks for reform’: http://www. doingbusiness.org/about-us. For a critical view of the impact of this project on legal reasoning and legal education standards see: Association Henri Capitant, Des Amis De La Culture Juridique Française, ‘Les Droits De Tradition Civilistes En Question: A Propos Des Rapports Doing Business de la Banque Mondiale’ (Volume 1): ‘un système unique convient à tous’, ‘la loi écrite nuit à l’évolution économique’, ‘les pays pauvres sont ceux qui légifèrent le plus’, ‘un système d’origine jurisprudentielle se prête mieux aux évolutions sociales qu’un système de droit écrit’.

51

Such as ‘Schlüsselbegriffe’, ‘Kontaktbegriffe’, ‘Verweisungsbegriffe’ or ‘Brückenbegriffe’ in W. HoffmannRiem, E. Schmidt-Aßmann and A.Voßkuhle (eds), GVwR I, § 40.

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series on ‘Better Regulation in Europe’52 makes clear that the steering53 capacity of statutes is limited. This has already been taken into account by the legal doctrines of the principle of legality and of the separation of powers. Although the primacy of law remains crucial (administrative action is invalid to the extent that it is inconsistent with any legislation), modern statutes have lost much of their informative power due to the complexity of society. Although public authority is exercised by specific and specialized legislative, executive and judicial bodies, the formative power of statutes relies heavily on what the executive, the judiciary and the market forces make out of the statutes they apply. Modern legislators are aware of the fact that they have to reduce the risks of their normative selections through continuous evaluation of the effects they produce. This is not possible without the help provided by a series of strategic forms of administrative action.54 This means that instead of laying the emphasis separately on a theory of drafting legislation, a theory of judicial decision making, or a theory of administrative action,55 the relationship between these56 should be the key issue.



3.8 Administrative Discretion

Administrative discretion is a classic administrative law issue. All administrative legal systems have to cope with it. The increased discretion that goes with the reduction of hierarchy in NPM-reforms (‘let public managers manage like real entrepreneurs’) has contributed to transforming administrative discretion from a side into a central legal issue constituting the subject matter of a standard legal institute. Some of the issues that in NPM-literature are dis52

Better Regulation in Europe- Portugal (OECD Publishing OECD 2009) http://www.oecd.org/portugal/43325693.pdf; Better Regulation in Europe: Italy 2012 (OECD Publishing ,OECD 2012) http://www. tecnichenormative.it/OCSEItaly2012.pdf; Better Regulation in Europe: United Kingdom 2010 (OECD Publishing, OECD 2010) http://www.keepeek.com/Digital-Asset-Management/oecd/governance/betterregulation-in-europe-united-kingdom-2010_9789264084490-en Better Regulation in Europe: France 2010 (OECD Publishing, OECD 2010) http://www.oecd.org/regreform/regulatory-policy/45706677. pdf; Better Regulation in Europe: Germany 2010 (OECD Publishing, OECD 2010) , http://www.planejamento.gov.br/secretarias/upload/Arquivos/seges/arquivos/OCDE2011/OECD_Germany_2010.pdf.

53

F. Reimer, ‘Das Parlamentsgesetz als Steuerungsmittel und Kontrollmaßstab’, in W. Hoffmann-Riem, E. Schmidt-Aßmann and A. Voßkuhle (eds), Grundlagen des Verwaltungsrechts I (GVwR), § 9 paras 111-114.

54 55

C. Franzius, ‘Modalitäten und Wirkungsfaktoren der Steuerung durch Recht’ in GVwR, ibid, § 4.

A division of labour appeared in this form in particular since the eighties: ‘Gesetzgebungslehre’, ‘Rechtsprechungslehre’, ‘Verwaltungslehre’ (not to be confused with the old concept of Verwaltunslehre in the sense of Lorenz von Stein, 1815-1890 and Robert von Mohl, 1799-1875). See: N. Achterberg, ‘Rechtsprechungslehre: Internationales Symposium, Münster, 1984’ (1 edn Heymann 1986); G. Müller, ‘Elemente einer Rechtssetzungslehre’ (2nd edn Schulthess, Zürich 2006); G. Püttner, ‘Verwaltungslehre’ (4th edn C.H. Beck, 2007).

56

See for ex. H.J. Vogel, ‘Gewaltenvermischung statt Gewaltenteilung? Zu neueren Entwicklungen im Verhältnis der Verfassungsorgane unereinander’, Neue Juristenzeitung (1996) 1505.

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cussed under the key word ‘accountability’57 are treated as problems of administrative discretion, for example in German law. Regulatory authorities have – due to their expertise – a specific, regulatory discretion. In Germany, they have the power to make final decisions in individual cases that are not reviewable by the courts, unless the regulatory authority really abused its discretionary power.58 Additionally, a risk-based regulation approach (regarding risks to health, safety, environment, security, or finance) has become popular in the initial NPMcountries.59 ‘When should the state manage a risk on behalf of everyone through regulation, and when should another body or individuals themselves be allowed to manage the risk?’60 Nonetheless, this approach is not per se a new form of administrative discretion- from a legal point of view, in all European countries. Not all probabilities and impacts of risk are legally relevant; such considerations and probabilistic calculations acquire legal character, for example in German administrative law, only in as much as they are seen through the lens of constitutional and administrative case law. This encompasses a balancing of interests that takes place between the constitutionally protected rights of those creating risks and of those exposed to risks, against the backdrop of the State’s obligation to protect its citizens against dangers for life and health, the Schutzpflicht: ‘The particular duty of care of the legislature in view of the fact that the state of scientific knowledge has not yet been finally established when assessing the long-term consequences of the use of genetic engineering.’61 Another point of tension between NPM and legal discretion doctrine lies with the fact that NPM highlights the importance of service delivery for ‘clients’. Firstly, it should be pointed out that administrative law conceives of a person in terms of an independent bearer of rights and obligations. This is the starting point for the legal interrelation between public authorities and the citizen.62 Then, taking into consideration the main task of police services (preventing of dangerous situations) it is highly questionable whether this concept is applicable to the exercise of police discretionary powers. Undoubtedly, more businesslike police authorities can be created. However, although public authorities must take account of public interests in exercising their discretion, they may not subject the exercise of this discretion to the subjective expectancies of citizens 57

See for ex. R. Boyle, ‘Governance and Accountability in the Irish Civil Service’, Committee for Public Management Research Discussion Paper 6, 29. http://www.ipa.ie/pdf/DiscussionPaper_6.pdf.

58

A. Proelss, ‘Das Regulierungsermessen – eine Ausprägung des behördlichen Letztentscheidungsrechts?’, Archiv des oeffentlichen Rechts, vol 136, 3 (July 2011) 402-427.

59

OECD, Risk and Regulatory Policy: Improving the Governance of Risk, 14 April 2010, http://www. oecd.org/gov/regulatorypolicy/riskandregulatorypolicyimprovingthegovernanceofrisk.htm#Executive_ summary_and_Chapter_list.

60

Better Regulation in Europe. United Kingdom 2010, OECD 2010 http://www.sourceoecd.org/ governance/ 978 9264084483.

61

BVerfG, 1 BvF 2/05 vom 24th November 2010, Absatz-Nr.1 – 318 http://www.bverfg.de/entscheidungen/ fs20101124_1bvf000205.html.

62

J. Masing, ‘Der Rechtsstatus des Einzelnen im Verwaltungsrecht’, in GVwR I, § 7.

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towards police work.63 A cause-effect interrelation between public perception and the delivery of police services would jeopardize or cancel out any statutorily-conferred discretionary police power. Selective client differentiation and orientation towards client’s demands do not seem to suit to the nature of police discretionary powers. Who selects the relevant demands? Although we welcome compliance with police performance indicators, it is important to remember that compliance with clients’ demands is not legally acceptable when resulting from the failure to exercise discretion or from its abuse.



3.9 Forms of Administrative Action

The forms of administrative action have been, in some jurisdictions, substantially influenced by NPM-reforms. They vary between public and private law, between unilateral action and public contracting. ‘Contractualism’ has been one of the main results of NPM-reforms (see remarks at para. 7.2).



3.10 Administrative Communication

Administrative communication that shifts normally between secrecy, transparency and participation (under the influence of NPM) has been pushed towards both transparency and secrecy. Access to administrative documents is a legal problem. Administrative documents are legally defined (‘final’ documents linked with administrative functions and public authorities). The right to access administrative documents can be restricted (in some specific situations) or simply based on the equality of access by everybody. For some documents, use after access is restricted. The power to limit the access is usually provided by statute as an exception and must be justified. The refusal can be challenged before a special commission or subjected to judicial review.64 The tension between transparency and seclusion was accentuated by some elements of the NPM-model of administration. Old-style public service emphasised anonymity, along with secrecy, but secrecy is a private sector value as well. Public private partnerships found themselves closer to the secrecy norms65 of private businesses than to the standards of public scrutiny.66 In public procurement procedures administrative communication is linked to competition. There 63

Even if client orientation is seen as public private sector cooperation: H.J. Lange and J.C. Schenck, ‘Polizei im kooperativen Staat’, (1 edn Wiesbaden, 2004).

64 65

See for France http://www.cada.fr/fr/reutilisation/frame.htm.

See the experience with Skye Bridge Ltd in Scotland: http://news.bbc.co.uk/2/hi/uk_news/ scotland/ 4112085. stm. Also see the effort to improve transparency and the image of the construction industry with regard to PPPs Deutsche Bauindustrie, Das Positionspapier vom Dezember 2011, ÖPP-Transparenzinitiative: http://www.oepp-plattform.de/media/attachments/Positionspapier_Transparenzinitiative_final.pdf.

66

J. Torfing et al, Interactive Governance: Advancing the Paradigm (Oxford University Press, 2012) 222; C. Pollitt, G. Bouckaert, Public Management Reform: A Comparative Analysis – New Public Management, Governance, and the Neo-Weberian State, (3rd edn Oxford University Press, 2011) 110.

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must be equal access to government data. Information that may not be available to third parties in the same form and at the same time as it is made available to government should not be used by a public enterprise operating in a commercial market. External bidders should be provided with the same access to privileged information as the incumbent’s bid team.67 In the field of independent authorities the tension between autonomy and accountability can be legally solved if transparency is only subject to limitations or restrictions necessary in a democratic society. Transparency is achieved through public consultation on regulation and communication. Finally, e-government is a considerable facilitator of transparency in as much as it establishes a new culture of accountability. A paradox is to be avoided here: efficient technologies and processes cannot be implemented within the context of existing inefficient administrative structures. This requires forming a professionally qualified and eager to learn civil service staff. The meaning of e-government is not to just computerize paper-based forms of administrative action and automate already routine practices. Rather, computerisation enables tax authorities to get a full picture of the taxpayer and her/his record of tax violations; it facilitates gathering systematic information across the various specific domains of administrative activity; it reveals to the citizen the inner working of the administrative system and, what is more, it brings changes68 to it and to deeply entrenched mentalities, as well as to existing accountability mechanisms.69



3.11 Administrative Controls

Administrative controls in European legal systems include courts, particular tribunals and ombudsmen. NPM-reforms have considered traditional administrative controls as part of a wider network of accountability mechanisms. The NPM-emphasis on output controls and on results-based management methods is conducive to the development of criteria of performance evaluation. This should, from an NPM-perspective, if not displace, at least complement traditional accountability functions. Accountability relations were expressed in terms of principal/agent relationships, and issues of efficiency, per67

G.L. Sturgess, A Fair Field and No Favours: Competitive Neutrality in UK Public Service Markets (Policy Study 1, The Serco Institute & CBI January 2006). See further, European PPP Expertise Centre, ‘Procurement of PPP and the Use of Competitive Dialogue in Europe: A Review of Public Sector Practices Across the EU’, EIB–11/2 0 1 0, S. 10.

68

Police Executive Research Forum, Washington, D.C. 20036, How Are Innovations in Technology Transforming Policing?, January 2012, http://policeforum.org/library/critical-issues-in-policing-series/ Technology_web2.pdf.

69

Computerisation in the Greek public administration is still a symbolic act with a function of ‘ordering’ existing information but without any ‘revealing’ and accountability function as to the inner working of public authorities: E. Prasopoulou, In Quest for Accountability in Greek Public Administration: The Case of the Taxation Information System (TAXIS) GreeSE Paper, December 2011, http://www2.lse. ac.uk/ european Institute/research/hellenicObservatory/pdf/GreeSE/GreeSE53.pdf.

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formance and reporting were added to issues of stewardship. NPM sharpened the eye for cases where accountability mechanisms that were adequate from a legal viewpoint still produced poor governance. On the other hand, the use of performance indicators (which are required to be measurable in order to make accountability for performance possible) does not always fit the culture and practice of all public sector institutions. The focus of attention with respect to measurement often disregards quality considerations that cannot be measured at all, such as for example the quality of legal decision making. A legal response to problems of contractualism has been the development of various types of dispute resolution in Public-Private Partnerships (PPP/s): negotiation, mediation, adjudication, and purely contractual mechanisms such as expert determination and arbitration. The latter depends on the parties entering into an agreement to arbitrate to resolve their disputes or a particular dispute. However, arbitration can also be governed by statute – for example in the UK by the Arbitration Act 1996. Finally, court proceedings have a role to play in PPPs but they are considered as the least confidential and not the most attractive resolution procedure for PPP disputes. The Centre for Effective Dispute Resolution (CEDR) is a commercial organisation which is a market leader in the provision of mediation services in the UK.



3.12 Administrative Courts

Administrative courts endorse an important role in all European administrative legal systems. Their organisation varies depending on the existence of monist or dualist structures. The main principles of judicial review of administrative action are common in all European jurisdictions with an emphasis shifting between the protection of individual rights and objective interests as well as between the control of administrative procedures and a comprehensive substantive control of the implementation of the law. Courts can only partially be subjected to NPM-inspired reform. Measurable performance indicators for the courts are hard to define due to the fact that legality and fair procedures are not easily measured. Only some aspects of the system of administrative courts are capable of measurement, such as issues of delay 70 and judicial organisational structures. Notwithstanding the fact that recent changes in Dutch judicial organisation drew their inspiration from the NPM-promise of better services and better legitimacy thanks to competition oriented organisations and better accounting mechanisms, reformers tried to avoid an approach of the type ‘one measure fits all’. Their aim was to change organisation structures without negative impacts on the content and quality of judicial judgments as such. A management board (with a professional manager, not a judge, among its members) for each individual court was instituted whose members are appointed for 6 years with the possibility of reappointment for another 6 years. This made a dismissing of members from the 70

J. Spigelman, ‘The ‘New Public Management’ and the Courts’ (2001) 75 Australian Law Journal 748.

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court’s management board, but not from their judicial office, possible. A newly instituted Council for the Judiciary is a public body governing the judicial organisation as a whole and is supposed to serve as a buffer between politics and the courts. To increase productivity, the courts and the judiciary as a whole receive annual funds according to the number of cases decided in the year previous to the budget year. This is flanked by the introduction of an additional system of quality management.71 As a result, guidelines have been issued to ‘efficiently use court capacity’ and reduce ‘average throughput times’. Interestingly, however, judges only seldom deviate from guidelines on procedure and from guidelines on the content of judgements.72 One gets the feeling that behind this attitude there lurks a conflict between the meta-norms of judicial reasoning and performance indicators.



4 Public Law as an Impediment to and a Tool for NPM-Led Change



4.1 Constitutional Law and Established State Structures

Existing organisational state structures and rules of constitutional law have always been an obstacle to reform and, at the same time, an indicator of the path of reform. Although, for example, German federal governments launched reform initiatives in 1995 and 1998 (the so called ‘Lean State’and ‘Enabling or Activating State’-initiatives), German administrative reforms took place in a bottom-up manner. This is due to Federalism. According to Germany’s federal structure the Länder are responsible for provision of administrative infrastructure, policy implementation, and partly, implementation of federal statutes on behalf of the Federation. Even though so called mandatory municipal duties are regulated by state and federation laws, municipalities have a margin of discretion while implementing them. Thus, the ‘New Steering Model’-Initiative was launched in 1991 after unification at the local and Länder-level by the Joint Local Government Agency for the Simplification of Administrative Procedures (KGSt). However, existing structures cannot be ignored, or reform will fail. One argument for the resistance to NPM-reform initiatives in Germany

71

P.M. Langbroek, ‘Organization Development of the Dutch Judiciary, between Accountability and Judicial Independence’, International Journal For Court Administration (April 2010) 1, 7: ‘The courts’ production is measured in 49 categories of cases. To each of these categories an amount of minutes (time units) is attributed, meaning the average court time necessary to handle such a type of case. This amount of minutes is based on empirical workload measurement to be repeated every 3 years. Therefore, the money the separate courts are entitled to is: number of cases decided per category x minutes per case x minute price. No need to say, this system requires reliable production registries and accounting systems in the courts.’

72

Ibid, 8.

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is the historically developed structure of German public administration.73 As, for example independent regulatory agencies run counter to German administrative traditions, creating several sectoral regulators took the reformers a considerable amount of legal argument and political effort. Initially, Germany opted for a less intrusive alternative to regulated third party access, the so called negotiated third-party access to the electricity supply industry. This option would have made a sector specific regulator, a regulatory agency authorised to set or approve ex ante network access charges, dispensable.74 The ‘constitutional, legal, and established practices prevented the adoption of new organisational forms and extensive managerial changes’ in other countries as well.75 Efforts to overcome these obstacles often have resulted in changes that are primarily guided by ‘judicial aspects’, and the ‘primacy of politics’.76 On the other hand, the incremental and consensual nature of reform is particularly strong when constitutional reform is required (for instance, the German decision to privatise Deutsche Telekom). Ownership unbundling in the energy sector and the German nuclear phase-out-decision are further examples where constitutional law and established rule of law principles can both reduce the possibilities and indicate the path of reform: describing a change as an expropriation means enhancing the costs of change and starting the search for proportionate alternatives.77



4.2 Civil Service Law

Civil service law is a good example of a body of law that is traditionally not open to reform.78 NPM made some things clear in this field: not all public servants need to have job security, nor is it required for them to have specific and more generous conditions of service than workers in the private sector. In Germany, a category of employment relationships in the public sector (concerning mainly public officials, Beamte) is based on public law, and specifically, on a constitutional rule (Article 33 para 5 Basic Law) according to which 73

W. Jann, ‘Neues Steuerungsmodell’ in B. Blanke et al, Handbuch zur Verwaltungsreform (3rd ed.Wiesbaden: VS Verlag, 2005) 74-84.

74

G. Brunekreeft, ‘Negotiated Third-Party Access in the German Electricity Supply Industry’ (September 2001). http://www.vwl.uni-freiburg.de/fakultaet/vw/publikationen/brunekreeft/MAILAND_Sept01.pdf. On German Energy Law see: J.-P. Schneider and C. Theobald, Recht der Energiewirtschaft, Praxishandbuch 4. Aufl. (C.H. Beck München 2011).

75

So in Portugal: Joaquim Filipe Ferraz Esteves De Araújo, ‘NPM and the Change in Portuguese Central Government’, International Public Management Journal, vol 5, 3 (2002) 223, 235.

76 77

Ibid.

A. Gromitsaris, ‘Expropriation, Takings- Annual Report 2011 -,Germany’, www.ius-publicum.com, http://www.ius-publicum.com/repository/uploads/21_03_2012_12_05_Gromitsaris_Expropriation.pdf.

78

Y. Chevalier, ‘La réforme budgétaire et la gestion des ressources humaines: quelles conséquences pour la fonction publique’, L’Actualité Juridique Droit Administratif (AJDA) (13 March 2006) No. 10/2006, 523, http://alexandrie.ira-lyon.gouv.fr/Record.htm?idlist=4&record=19135322124919535049.

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the law ‘governing the public service shall be regulated and developed with due regard to the traditional principles of the professional civil service’. As a consequence of the Federalist Reform in 2006, the Länder can themselves decide on on the rules governing career, payment and pension rates of civil servants in the respective State. However, Article 33, para 5 Basic Law along with the restricting case law of the German Federal Constitutional Court does not allow for an unreserved adoption of NPM-ideas: account must be taken, for example of the limits which must be drawn to part-time work, the introduction of temporary and probationary staff, especially temporary high-ranking positions, and to the amendment of the pension regime.79 The central principles governing civil service are loyalty, the obligation to avoid radical or extreme views or acts also in private life, and the obligation to comply with top down instructions; additionally, there is a ban on strikes whilst officials are under the obligation to work overtime, if necessary; disciplinary rules are sanctioned by specific penalty rules. The traditional ‘principle of alimentation’ is not fully compatible with NPM-ideas, such as the introduction of pay for performance elements, or increased mobility between different career paths; rather, salary is coupled to the position the official holds, not to performance. Further, a salary raise is granted when obtaining a new position, not as a performance bonus. These principles are based on the idea that officials devote their natural and acquired skill and talent to civil service for the common good. In return, the public sector, as an employer, has the duty to care for the official and his family.80 Part of the flexibility of civil service in Germany is due to the fact that the greater part of employment relationships is based on rights and obligations that are similar in character, structure and function to those of employees in the private sector, i.e. they are based on individual employment contracts and collective agreements or wage agreements. This group of workers (Arbeiter, Angestellte) has employment contracts like private sector employees; they can join unions and enjoy the right to strike.



4.3 The Pendulum Experience: Privatisation and Re-Municipalisation

Legal forms and tools are both restrictions on and facilitators of legally possible and relevant behaviour. Privatisation was made possible because a ‘post-privatisation-law’ could be developed. Privatisations are very 79

BVerfG, Decision v. 20.03.2007, 2 BvL 11/04; BVerfG, Decision v. 19.09.2007, 2 BvF 3/02; BVerfG, 28. Mai 2008, 2 BvL 11/07).

80

H.A. Wolff, The Civil Service In Germany, www.ius-publicum.com. They do not correspond to NPMideas that are rather reflected in the Greek Economic Adjustment Programme: ‘Privatised former SOEs are not competitive if they are forced to inherit labour conditions from the public sector, which notably have included public-sector-like tenure and very generous automatic wage increases. Such conditions will be aligned with those in the wider private sector.’ European Economy, ‘Memorandum of Understanding on Specific Economic Policy Conditionality Greece’ in The Second Economic Adjustment Programme for Greece’ (March 2012),40, http://ec.europa.eu/economy_finance/publications.

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much aligned with the ‘regulated competition’ model in Britain. It outlawed or threatened key elements such as legal monopolies, cross-subsidies between services, favoured equipment suppliers or state aid to national champions. The principle of ‘fair and effective competition’ does not support a propensity to create ‘national champions’ protected at home while enjoying a level playing field abroad.81 This type of post-privatisation legal measures is aimed at ensuring quality standards and fair prices and addressing market failures within the context of service provision by the private sector in the public interest. Privatisation was made possible because the law addressed the need for legal principles dealing with the cooperation between the public sector and the market (qualification and selection of the private actors, protection of third parties rights and of the public interest). Here, the public sector could also avail itself of the tools of private law. In France, the NPM-inspired demand for marketisation, liberalisation, outsourcing and public contracting could be easily grafted to long existing legal forms of traditional administrative law and local public service provision (délégation, concession). In Germany, in the social welfare sector, public tasks were traditionally discharged by non-profit-making organisations and voluntary associations or the churches. Within the German federal context, this resulted in a plurality of decentralized service providers. The legal forms of service delivery82 could be used not only as vehicles of privatisation; they also served as tools for controlling and reversing it. The contract as a general legal tool, for example, is an impediment to dynamic processes with its long duration and high uncertainty. PPP-experience in many countries shows that contract cannot be replaced with endless negotiations aimed at constantly redefining targets, service standards, and refinancing conditions. It makes PPPs possible and it simultaneously imposes restrictions on them. The organisational arrangements83 that were initially used for privatisation became, thanks to their in-built control mechanisms, an ideal tool for revealing deficiencies in local control and effective delivery of public service objectives in the public interest. Even though privatisa-

81

This is made clear in the Greek Adjustment Programme (n 8): ‘The Government will neither initiate nor introduce any voting or acquisition caps, and it will not establish any disproportionate and non-justifiable veto rights or any other form of special rights in privatised companies. No further special rights will be introduced in the course of future privatisation projects’, 126.

82

See for eg some of these tools: Forms of Direct Management (Regiebetrieb, régie directe), Public Law Municipal Enterprises (Eigenbetrieb, régie autonome), Institution under Public Law (Anstalt des öffentlichen Rechts, régie personalisée, azienda speciale), Intermunicipal Consortium (Zweckverband, syndicat, consorzio), Private law firms owned by the Public Authority (Eigengesellschaft), Outsourcing of Management (Betreibermodell, régie intéressée, gérance), Lease Contract (affermage, service concessions (Dienstleistungskonzession, concession), PPP (société d’économie mixte).

83

 Corporate Governance of State-owned enterprises: Accountability and Transparency, A Guide for State Ownership (OECD Publication 2008).

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tion is not liberalisation, re-municipalisation was seemingly also inspired by the bad experience with the combination of both of them.84 There is evidence that there is a trend in different countries in Europe towards provision of services by the public sector, i.e. towards bringing service provision back ‘home’ (in-house) or towards ‘re-municipalisation’. The trend affects sectors like water, electricity, public transport, waste management, cleaning, or housing in countries like Hungary, Finland, UK, Germany, or France. One of the reasons for this trend is, in Germany, that most of the concession contracts in the energy sector will soon be expiring. In France, there have been influential precedents in the water sector, such as the re-municipalisation of water services in Grenoble and Paris as well as of public transport and waste management in other French cities. In the UK major PPPs in public transport were terminated and replaced by direct municipal provision because of ‘economic failure’. Apart from expiry of contracts, private sector failures, reduction of (transaction) costs of tendering and monitoring, greater degree of control, effective delivery of public service objectives, greater efficiency, and lower cost of capital for public authorities, are the key reasons given for re-municipalisation.85 From the viewpoint of administrative law, privatisation is simply an option out of a variety pool and a product range that law has in store for a field of activity. Options that are not selected remain available on the long-run. They operate as ‘repositories’ of rules normally applicable to the typical category of administrative activity under consideration (Speicherfunktion).86 The mere existence of forms of public direct management (régie, Regiebetrieb) is a reminder of the fact that there is a public sector option. This option enables a public authority to choose a solution (re-municipalisation) which would never be provided through

84

J. Meek, ‘Privatised Mail: A Second-class Delivery’, The Guardian (Friday 29 April 2011): ‘The government wants to privatise the Royal Mail. But what would the new service look like? An examination of how the Dutch do it exposes unhappy customers and exploited workers’.

85

See the overview of D. Hall, PSIRU, ‘Re-municipalising municipal services’, in Europe (May 2012) and D. Hall and E. Lobina, ‘Replacing failed private water contracts’(January 2010) http://www.psiru.org/ publications?type=report; See further Jane Lethbridge, ‘Broken Promises: The Impact of Outsourcing on NHS Services’ (April 2012), http://www.psiru.org/reports/broken-promises-impact-outsourcingnhs-services; See further O. Rottman and R. Albrecht (27 July 2011) http://www.gemeinderat-online.de/ fileadmin/default/files/PDF_Dokumente/Studie_HVB.pdf; Report by APSE for UNISON, ‘Insourcing update: The value of returning local authority services in-house in an era of budget constraints’ (June 2011) http://www.unison.org.uk/acrobat/20122.pdf; TNI/CEO, ‘Remunicipalisation: putting water back into public hands’ (10th March 2012) TNI http://www.corporateeurope.org/publications/remunicipalisation-putting-water-back-public-hands.

86

E. Schmidt-Aßmann and C. Möllers, ‘The Scope and Accountability of Executive Power in Germany’, in Paul Craig and Adam Tomkins (eds), The Executive And Public Law: Power And Accountability In Comparative Perspective (digitized edn 2008, first published Oxford University Press, Oxford, 2005) 268, 275-279.

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improving tendering procedures, as long as the authority is satisfied that this solution is better than any negotiable with a private firm.87



4.4 Re-Municipalisation and Competition

Re-municipalisation does not mean that NPM-principles are abandoned. If re-municipalisation is combined with corporatisation, it leads to a rise in the number of so called mixed markets, i.e. markets where ‘state-owned enterprises, private firms and third sector organisations compete alongside one another’. In this context the issue of competitive neutrality becomes all the more important.88 Evidence shows that there are clear benefits, to both users and taxpayers, not simply in subjecting incumbent service providers to competition but also in creating mixed markets. Different firms and organisations are considered to have different strengths (and weaknesses) in delivering different types of services, and these points seem to make up the benefits of the ‘mixed economy’ model.89 Additionally, from an NPM-viewpoint, any corporation (either private or state-owned) has to introduce corporate management techniques to its administration. Competitive neutrality is about disadvantages faced by all sides; in some cases the public sector or a third sector might be at a disadvantage. Rules of competition that could be applied to state-owned enterprises, private firms and third sector organisations regardless of ownership are considered as ‘overarching competitive neutrality principles’.90 Spain has specific provisions which aim to determine the additional costs derived from the public service obligations assigned to public trading companies and pubic law entities. They intend to appraise the financial advantages obtained by them and the impact of specific regulation applicable to them and to calculate the income that the State Budget should receive as a compensation for the amounts invested in them.91 The clearest example of an overarching competitive neutrality framework is to be found in Australia: transparency and accountability, taxation neutrality, debt neutrality, rate of return neutrality and regulatory neutrality. The model is combined with a transparent public benefit test to establish the boundaries between commercial and non-commercial public activities and with transparent 87

D. Hall and E. Lobina, Private to Public: International lessons of water remunicipalisation in Grenoble, France, August 2001, at p. 18: http://www.psiru.org/reports/private-public-international-lessons-waterre-municipalisation-grenoble-france.

88

Office of Fair Trading (OFT1242), Competition in mixed markets: ensuring competitive neutrality. A working paper, July 2010.

89

BERR Department for Business, Enterprise & Regulatory Reform, Public Services Industry Review, Understanding the Public Service Industry: How Big, how good, where next?. A review by Dr. DeAnne Julius CBE.

90 91

Ibid, 35.

Ibid, 37 quoting: Royal Decree 1373/2009, implementing Act 33/2003 on the Public Administrations’ Wealth. Decree 1373/2009 came into force on 28 October 2009.

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and politically independent review processes.92 Competitive neutrality reforms in Australia focused first on ‘significant business activities’, secondly once a state-owned enterprise has been identified as carrying out a significant business activity, on identifying the particular competitive neutrality distortions, and, thirdly, on assessing ‘whether the benefits of implementing the relevant reforms exceeds the costs associated with doing so’.93 Public enterprises or State-owned enterprises (SOEs) are required to fulfil multiple conflicting objectives and to pursue goals other than generating and maximising profit, such as loss-making universal service obligations. The private sector considers that rules on universal services are outdated; they should be examined critically and scaled back.94 SOEs should not use stategranted privileges to price below their private competitors. Competition from a government rival often kills the market und results in private disinvestment. Profits from monopolised activities are used to underprice activities exposed to private competition.95 If the public sector prohibits default of state owned enterprises, financial markets view those enterprises as implicitly having a credit guarantee. An example of implicit government credit guarantees (mutual guarantee schemes Gewährträgerhaftung and Anstaltslast) and an example of ‘susceptibility to excessive political influence’96 can be found in traditional German Landesbanken. Furthermore, captive equity is actually a subsidy to SOEs: taxpayers as shareholders are prohibited from selling their equity stake. The insulation from bankruptcy as well as tax exemptions is another artificial competitive advantage of public enterprises that can additionally be immune from some regulatory requirements, such as the costly disclosure requirements provided for in the law regulating the securities industry. A public enterprise may work inefficiently but still be able to force its private competitors (that are not in possession of government provided immunities and privileges) from the market or deter their market entry.97 92

M. Rennie & F. Lindsay ‘Competitive neutrality and state-owned enterprises in Australia: Review of practices and their relevance for other countries’ (2011) OECD Corporate Governance Working Papers, No.4, www.oecd.org/daf/corporateaffairs/wp.

93

Ibid, 16-19.

94

For eg the Federation of German Industries, ‘Services of General Interest: the State as beneficiary? For fair competition between state and private sector, as well as more investments, greater efficiency and optimisation of charging structures’, BDI Economy, Locational Policy and Competition, BDI Imprint No 403 – E (November 2007).

95

See e.g. Case COMP/35.141, Deutsche Post AG, (2001/354/EC) at paras 3 and 36. ‘Without the crosssubsidies from the reserved area, DPAG would not have been able to finance below-cost selling there for any length of time.’ ‘However, DPAG, by remaining in this market without any foreseeable improvement in revenue restricted the activities of competitors which are in a position to offer this service at a price that covers their costs.’

96 97

IMF Country Report No. 11/370, Germany: Technical Note on Banking Sector Structure, July 2011, p. 4.

R. Geddes (ed), Competing with Government (Hoover Press 2004), Chapter 2, et seq.

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Administrative law has already provided some answers to these issues raised by NPM-critique. In Germany, the constitutional municipal right to self-administration does not give municipalities the freedom to deploy their economic activities as they see fit. The rationale behind this is that economic activities should be left to free competition and market forces; the freedom of private enterprises to exercise their profession is a fundamental right. The principles of subsidiarity and local provision must be met: the activity must be justified by a public purpose, and private enterprises must not be in an equally good position to provide the services. Before German public authorities engage in service delivery through economic activity they must prove through market research that private enterprises cannot provide that service. Economic activity must in any event be geographically limited to the territory of the municipality. Inter-municipal cooperation should not be used to circumvent these principles by securing market shares at the expense of private firms. However, a range of countries let their national enterprises enjoy the freedom to deploy strategies of internationalisation and to pursue commercial opportunities abroad as long as they discharge their mission at home.98 When economic activity by public authorities is justified by a public purpose, they still have to act in accordance with public and budget law principles, notably with the principles of equivalence and cost coverage, i.e. the service provided must be proportionate to its cost and the fees charged for the users must cover the costs over the relevant accounting period. Under German Municipal Codes mixed economy participation of municipalities are permitted for public purposes, if there is appropriate corporate governance and limited liability of the municipalities (for example Article 92 Bavarian Municipal Code). Further, municipal codes are not only intended to protect municipalities from taking financial and economic risks, but also to prevent municipalities from making profit at the detriment of the private sector and from endangering private sector dominated market structures. Municipalities may not exceed their boundaries of permitted commercial-economic activities. They should only be commercially-economically active if an urgent public purpose dictates action and the private sector cannot provide the service in question to the same level of efficiency and solve the public task equally well. The commercial activity of public authorities should not be disproportioned to the technical and financial capacities of the authorities (for ex. section 107 Municipal Code of North Rhine Westphalia).



5 Efficiency as a Legal Concept

There is at least one NPM value that has certainly acquired the status of a legal concept: efficiency. It is a legal requirement that resources must 98

‘A description from an Irish perspective’, in FORFÁS, The Role of State Owned Enterprises: Providing Infrastructure and Supporting Economic Recovery (July 2010).

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be used the most efficient way. German constitutional law, for example, postulates efficiency, stipulating in Article 114 (2) that the Federal Court of Audit, whose members enjoy judicial independence, has the task to determine whether public finances have been properly and efficiently administered. The principle of efficiency (Section 6 of the Budgetary Principles Act, Sections 7 and 34(2) and (3) of the Federal Budget Code) implying that a result is achieved with the smallest possible input of resources or that the best possible result is achieved with a specific resource input, is a legal principle and must be observed. Before spending money, public authorities are obliged to examine whether, with regard to the reason for and the amount of expenditure, spending money or incurring a commitment is necessary. The principles of ‘efficiency and economy’ must be ensured across the entire range of administrative activity. Efficiency analyses are planning instruments as well as a method of reviewing efficiency including procedural provisions. Under Section 7(2) of the Federal Budget Code, ‘appropriate efficiency analyses’’ are to be carried out for all measures having a financial impact by the persons responsible for them. Efficiency analyses cover draft legislation, investment projects, subsidies, tax or social policy measures, or public procurement. Under Section 65 of the German Federal Budget Code, the state could participate in an organisation under private law to discharge a specific public task more economically and efficiently only if there is no alternative; additionally, the payment commitment of the public authority should be limited to a specific amount, the public authority must be able to exert a reasonable influence through the board of directors or via other means of suitable corporate governance, and the financial statements and the management reports should be prepared in accordance with the provisions for large companies limited by shares contained in the German Commercial Code (Handelsgesetzbuch, HGB). Outsourcing decisions do not simply follow the precepts of New Institutional Economics and Public Choice Theory; rather, they have to comply with European law, constitutional law, budgetary regulations, competition law, and public procurement law. It is a legal requirement that private-sector providers are to be given the opportunity to demonstrate whether and to what extent they can perform public tasks or commercial activities serving public purposes as efficiently as or more efficiently than public bodies. In public procurement law efficiency, not the lowest price is the key factor for organising a competitive dialogue procedure and for awarding a public contract within a context of transparency and equality of treatment. The most economically advantageous tender must be determined by applying the principles of sound financial management.

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6 Culture of Assessment of Government Policy by Independent Agencies

The culture of assessment of government policy by independent agencies was strengthened by the NPM movement but it was not invented by it. Audit institutions show that. They are old institutions facing new problems as economic and fiscal governance in the EU has dramatically changed.99 This means that the quality of government accounts in the Euro zone countries should be improved, that the certification of public accounts should be generalised and institutionalised, and financial transactions should be recorded in the accounts on an accrual basis.100 The French Cour des Comptes for instance, is one of the oldest entities in the French administration although it has acquired some new functions. It is actually part of the administrative system, as it is considered as one of the three grands corps de l’Etat, but it also has strong traits of independence. In its application of the 2001 Organic Budget Law (‘LOLF’), the Cour in 2007 certified the 2006 accounts of the State for the first time.101 In Germany, the Federal Court of Audit, and (since 1998) its audit offices, conduct the account related and account unrelated auditing of federal government activity including federal government special funds and federal government enterprises as well as government participation in enterprises under private law and private law entities if they receive federal grants or are administrated by the federal government. The Federal Court of Audit is independent in relation to both government and parliament. Decisions are not taken by single officers but by colleges of at least two members of the Court. In addition to its auditing activities it is also invested with an independent advisory function (for ex. advice to federal ministers, to parliament on financial decisions or advice during the budget preparation phase). In the UK the National Audit Office is granted with inspection rights and has among others the task to deliver the annual certification audit of the accounts of public entities and to examine the efficiency and effectiveness of the use of public resources. The core functions of regulatory oversight bodies are larger than delivering reports on the accounts. They range from oversight of the rule-making process itself and assisting rule makers in their evidence-based analysis to challeng-

99

http://europa.eu/rapid/press-release_MEMO-13-318_en.htm.

100

See on the consequences of the ‘six pack’ for France the report of the French Cour des Comptes: ‘La situation et les perspectives des finances publiques’ (July 2012) 171-194. available at http://www.ccomptes. fr/Publications.

101

The Cour gives, through its reports on the accounts and on the Budget results and Budget management, an opinion to parliament on true fair view provided by the accounts and delivers an attestation audit. It scrutinises the achievement of predetermined objectives by means of public expenditure. If the Cour is concerned about the situation and outlook for public finances in the country, this can no longer be ignored by the political system and becomes a political issue.

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ing the quality of regulatory proposals and advocating for better regulation.102 Conflict of interests arising from these different core functions must be avoided for example, between the challenge and advice functions. Self assessment by regulators is not sufficient to deliver high regulatory performance and implement necessary reforms. The question is whether an oversight body delivering independent assessment can preserve its autonomy and objectivity while having access to political information and whether it is given special (veto) powers to enforce quality criteria. The US Office of Information and Regulatory Affairs (OIRA) has the authority to return draft regulations to agencies for reconsideration.103 The US-American MDRC conducts analyses ‘in fields where emotion and ideology often dominate public debates’ and presents itself ‘as a source of objective, unbiased evidence’.104 In Australia, approval of the adequacy of each regulatory impact analysis is required from the oversight body before the regulatory action proceeds. In the Netherlands, Actal which is an Advisory Board on Regulatory Burden acts as a technical oversight body that leaves it up to the Better Regulation Council (a political institution) or the cabinet to make the decision to accept or reject the technical assessment.105 In Germany, the Impact Assessment Unit in the Ministry of the Interior is set up to implement a specific regulatory tool. The National Regulatory Control Council (NRCC) which has authority to oversee the quality of the assessment with regard to the administrative burden reduction programme was established as an independent advisory and control body outside the government structure. The opinions of NRCC are public and included in the annex to the draft bill.106 In the UK, the independent external Regulatory Policy Committee provides external scrutiny of the impact assessments of all new regulatory co-proposals, and the associated proposed ‘outs’, under the One-in, One-out rule.107 The role of the Reducing Regulation Committee, a Cabinet Sub-committee is to provide the clearance to regulate, in terms of challenging or approving the new regulatory proposals. The Institute for Fiscal Studies has the task to analyse, based on ‘detailed empirical evidence and in-depth institutional knowledge’ the impact of policies on public finances and society.108

102

C . Cordova-Novion and S. Jacobzone, ‘Strengthening the Institutional Setting for Regulatory Reform: The Experience from OECD Countries’, (OECD Publishing 2011) OECD Working Papers on Public Governance, 19,. http://dx.doi.org/10.1787/5kgglrpvcpth-en.

103

http://www.whitehouse.gov/omb/inforeg_default.

104

Man Power Demonstration Research Corporation (MDRC), http://www.mdrc.org/about/about-mdrchistory.

105

http://www.actal.nl/english/about-actal/.

106 107

http://www.normenkontrollrat.bund.de/Webs/NKR/DE/Aufgaben/aufgaben.html.

HM-Government, ‘One-in, One-out: Statement of New Regulation’ (April 2011), http://www.bis.gov.uk/ assets/BISCore/better-regulation/docs/O/11-p96a-one-in-one-out-new-regulation.pdf.

108

http://www.ifs.org.uk/aboutIFS.

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7 NPM and Public Sector Reform in the Crisis-States of the Euro-Area

The NPM terminology is widely used in describing the targets of public sector reform and in becoming a standard or scale of measurement of the performance of public administration. This is the case in the ‘Memoranda of Understanding on Specific Economic Policy Conditionality’ concerning Greece, Portugal and Ireland, as well as in the review by OECD of the Greece’s central administration. Although debt-ridden countries in the Euro-area are characterised by different types of economic imbalances viz., a credit bubble in Ireland,109 a construction bubble in Spain110, a deficit spending bubble combined with an inefficient public sector and an unfair and inefficient taxation system in Greece, the reform vocabulary used in these countries reflects, at least partly, the cornerstones of NPM.



7.1 Tax Law

It would go beyond the scope of this article to try and answer the question whether the economic adjustment programmes for the Euro-countries in crisis contain the elements of the best possible policy mix.111 At any rate, the tax policy required by the second memorandum of understanding for Greece does not seem to be limited to a monetarist view of public administration: ‘The Government will prepare a tax reform that aims at simplifying the tax system, eliminating exemptions and preferential regimes, including and broadening bases, thus allowing a gradual reduction in tax rates as revenue performance improves.’112 Revenue administration reforms are not necessarily NPM-led reforms. However, the memorandum draws on the NPM idea of reversing party political infiltration and enhancing efficiency through the use of adequate institutional settings: Policy makers and reformers are expected to ‘strengthen the anti-corruption framework for the tax administration’, to reform ‘the financial inspections’ unit’, to ‘audit annually at least 200 asset statements of tax officials’, to establish ‘procedures for the rotation of managers on a periodic basis’, to improve the system ‘to protect whistle-blowers who report corruption’, and 109

N. Hardiman, ‘Economic Crisis and the Politics of Austerity in Ireland, Economic Sociology’, Newsletter 12 (3) (July 2011) 35-37.

110

S. Dellepiane and N.Hardiman, ‘The New Politics of Austerity: Fiscal Responses to the Economic Crisis in Ireland and Spain’, UCD Geary Institute Working Paper No. 2012/07, http://papers.ssrn.com/ soL3/ papers.cfm? abstract_id=2013238; http://en.wikipedia.org/wiki/2008%E2%80%932012_Spanish_ financial_crisis.

111

S. Ladi, ‘The Eurozone Crisis and Austerity Politics: A Trigger for Administrative Reform in Greece?’ April 2012, http://www2.lse.ac.uk/ europeanInstitute/research/hellenic Observatory/ CMS%20pdf/ Publications/ Gree SE/GreeSE-No57.pdf.

112

European Economy, The Second Economic Adjustment Programme for Greece (n 80) 127.

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to prepare ‘a fully-fledged anti-corruption plan’.113 Resolute tackling of tax evasion is conditioned upon the achievement by the political system of profound structural reforms in public governance and administrative practice and not just by the black letter law level. Still, such reforms have been circumvented at the expense of social cohesion; since they have been replaced with ‘functionally equivalent’ fiscal measures that simply reflect a political consensus on a series of expenditure cuts, leaving the original reform problems in the area of tax administration untouched. Core elements from the NPM-led agencification debate are at any rate present in the reform and anti-corruption efforts in the area of tax administration.114 Organisational measures have been taken, aimed at guaranteeing if not the autonomy at least a reasonable degree of independence from line ministries and informal patronage systems. They have led to the inception of (semi-) independent tax and revenue authorities or departments. Moreover, independence as a key element for establishing and safeguarding the overall credibility of an anti-corruption authority has been discussed at EU level.115 A project of delivering European and transnational solutions to tax evasion116 and corruption117 is making its way through multilevel regulatory networks. 113

Ibid,129. See also: European Commission, TFGR-Task Force for Greece, 1st Quarterly Report, SI (2011) 399/3, 4. ‘Tax policy: A fairer, simpler and stable tax system would help to spread the burden of economic adjustment more equitably, and limit the scope for tax evasion and avoidance’.

114

See for ex. M. Asensio, ‘Has Agencification Succeeded or Failed in Public Sector Reform? The Case of Portugal’, Annual Conference of EGPA (7 – 10 September 2011 Bucharest, Romania) available at http:// soc.kuleuven.be/io/egpa/org/2011Roem/papers/Paper%20Maria%20Asensio.pdf.

115

European Partners Against Corruption/European contact-point network against corruption, AntiCorruption Authority (ACA) Standards ( November 2011) http://www.epac-eacn.org/downloads/recommendations/doc_view/1-anti-corruption-authority-standards.

116

Convention on Mutual Administrative Assistance in Tax Matters. Text amended by the provisions of the Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters, which entered into force on 1st June 2011, http://www.oecd.org/dataoecd/63/49/48980598.pdf. Also see Jonas Jensen and Florian Wöhlbier, ‘Improving tax governance in EU Member States: Criteria for successful policies’, Occasional Papers 114 (August 2012) http://ec.europa.eu/economy_finance/publications/occasional_ paper/2012/pdf/ocp114_en.pdf.

117

See Bribery in International Business, www.oecd.org/daf/nocorruption, Report on implementing the OECD Anti-Bribery Convention in Greece (June 2012) para 13: ‘Where appropriate, this report also refers to the Johnson & Johnson/Dougall/DePuy case, Smith & Nephew case, and Siemens case. All of these cases involved individuals or companies from other parties to the Convention bribing Greek officials.’ http://www.oecd.org/dataoecd/21/2/50633313.pdf The EU-Commission has already drawn conclusions from this experience: ‘Non-payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the Union.’ COM(2011) 897 final, 2011/0437 (COD), Proposal for a Directive of the European Parliament and of the Council on the award of concession contracts, at para 33, 16; EU-Commission, C(2011) 3673 final: ‘Establishing an EU Anti-corruption reporting mechanism for periodic assessment’ (EU Anti-corruption Report). Moreover GRECO had for recommended to amend current Greek legislation to expressly exclude the operation of Article 30 (2) of the Greek Code of Penal Procedure concerning the postponement or suspension of prosecution of

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7.2 The Promise of Growth without Deficit Spending

There is fierce debate over whether austerity, growth or a combination of both is the best strategy to prevent a recurrent moral hazard situation und to overcome the Eurozone’s sovereign debt crisis. Triggering an additional demand through deficit spending is no guarantee that this demand will not be beneficial exclusively to foreign products. If old-style Keynesian deficit spending can no longer deliver growth under the conditions of a globalised economy, then private or public-private118 investment in infrastructure might be more promising. This is not the place to tell what governments should put under their pillow for the ‘confidence fairy’ to come around and sprinkle them with great things.119 Many of them as well as the EU and international organisations (IMF, World Bank) hoped that instituting a lasting cooperation between the public and private sectors would clearly be to the advantage of both and to the public interest. This belief prompted many jurisdictions to introduce laws that would facilitate the establishment of public-private partnerships (PPP). In Germany, for ex., a specific Act was introduced to accelerate the establishment of Public-Private Partnerships.120 Section 7(2) of the Federal Budget Code was supplemented so that efficiency analyses are required to give careful thought to the distribution of risk resulting from PPPs.121 In many countries tax law was adapted to PPP needs122 and efforts were made to avoid that small and mediumsized enterprises get disadvantaged123 in PPP-procurement procedures. The calculation of user fees showed that private profit seeking, project refinancing and

‘political acts’ and ‘offences through which international relations of the State may be disturbed’ in the context of all domestic and foreign bribery offences. http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoRC3%282012%2910_Greece_EN.pdf , para 49. 118

For recent case law on public procurement and PPPs see C Bovis, ‘New Directions in PPP: Judicial Developments from the ECJ’ EPPPL 2011, 1 ff; European PPP Expertise Centre (EPEC), ‘Procurement of PPP and the use of Competitive Dialogue in Europe. A review of public sector practices across the EU’, 2010, 7.

119

P. Krugman, ‘Cameron and the Conficence Fairy’, The New York Times, 26th May 2012.

120 121

Federal Law Gazette (2005) 2676.

See for an analyses of he German legal viewpoint: R. Becker, Die Erfuellung oeffentlicher Aufgaben durch Gemischtwirtschaftliche Unternehmen, (Baden Baden, Nomos 1997).

122

See for eg the expert report on optimisation of tax law taking account of various PPP models: Desens/ Lenk/ Hummel/ Rottmann, Rechtswissenschaftliches und ökonomisches Gutachten zur Umsatzsteuerdefinitivbelastung von Körperschaften des Öffentlichen Rechts im Rahmen von Öffentlich-Privaten Partnerschaften (ÖPP) bei der Wahrnehmung von hoheitlichen Aufgaben, Leipzig, den 10 March 2011. In Germany, the efficiency and profitability review of the PPP-Project takes into account the impact of taxation rules on the project: ‘ÖPP Deutschland AG, Standardmodell für Wirtschaftlichkeitsuntersuchungen von ÖPP-Hochbauprojekten’ (2011) S. 12, 27, 43, 51 f., 55, 79, 81, 99.

123

ÖPP Deutschland AG, ÖPP und Mittelstand (2011).

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public interest are things that are not easily compatible with each other,124 even in cases where ‘behavioural pricing’ is used.125 The promise that the spread of PPPs could bring economic growth while keeping capital spending off government balance sheets could not however be kept. PPPs do not reduce the overall cost of public borrowing126, they rather introduce new possibilities to pay later (Kreditähnlichkeit)127 at high interest rates, and hence, they are new forms of creating public debt.128 Along with general fiscal risks ‘specific contingent liabilities to which the general government may be exposed, including those arising from Public-Private Partnerships (PPPs), state owned enterprises and explicit guarantees to the banks’ should be therefore explicitly outlined.129 Moreover, there is some suspicion as to the neutral role of the public sector as contracting authority and oversight institution. Monitoring of PPPs should, therefore, be conducted by

124

See for Italy Testo unico delle leggi sull’ordinamento degli enti locali, Decreto Legislativo (18 August 2000) n. 267 und Legge Galli L. 5 January 1994, n. 36. See for the Spanish ‘tasas’: www.enciclopediajuridica.biz14.com/d/tasas-y-precios-publicos/tasas-y-precios-publicos.htm. In France the double rule of principe d’équilibre et de proportionnalité applies: Conseil constitutionnel, décision no. 76-92 L du 6 October 1976 (RDP 1977) 764; Conseil d’Etat, Redevances pour service rendu et redevances pour occupation du domaine public (2002).

125

R . Lindsey, ‘Recent developments and current policy issues in road pricing in the US and Canada’, European Transport/Transporti Europei, 31 (2005) 46; K. Button, ‘The Rationale for Road Pricing: Standard Theory and Latest Advances’ in: G. Santos (ed), Road Pricing: Theory and Evidence, Research Transportation Economics 9 (1 edn, Elsevier Ltd, 2004) 3; G.H.W. Kuhn, ‘Being in the right place at the right time’, Operations Research, 50/1 (2002) 132; SA Morrison, ‘The Equity and Efficiency of Runway Pricing’, Journal of Public Economics 34 (1987) 45.

126

Despite a rather optimistic view of Eurostat, the IMF expressed serious concerns with regard to budgetary discipline: Eurostat, ‘Long Term Contracts Bgovernment Units and Non-government Partners (Public-Private-Partnerships)’ (Luxembourg: Office for Official Publications of the European Communities, 2004); International Monetary Fund, ‘Public Investment and Fiscal Policy’ (March 12, 2004) para 36: ‘A recent Eurostat decision on accounting for risk transfer gives considerable cause for concern, because it is likely to result in most PPPs being classified as private investment.’ And at para 38: ‘Until an internationally accepted accounting and reporting standard for PPPs is developed, the actual and potential costs for the government implied by a PPP contract should be taken into account when undertaking debt sustainability analysis (DSA).’

127

C . Jahndorf, ‘Alternative Finanzierungsformen des Staates. Leasingmodelle, Liegenschaftsmodelle, Parklösungen: Verwaltungsschulden, Veräußerungserlöse oder Krediteinnahmen? Zur Auslegung des Kreditbegriffs’ i.S. Article 115 Abs. 1 GG, NVwZ 2001, 620; N. Gatzke, PPP und öffentliche Verschuldung (1 edn, Peter Lang 2010) S. 109 ff., 117 ff., 186 ff.

128

Bund/Länder-Arbeitsausschuss ‘Haushaltsrecht und Haushaltssystematik’ (Budgetary Treatment and Classification of PPP-Projects) published as an Annex to VV Nr.1.4 zu § 17 LHO, 2007.

129

European Commission, ‘The Economic Adjustment Programme for Portugal’ (Third Review- Winter 2011/2012) 91, http://ec.europa.eu/economy_finance/publications/occasional_paper/2012/op95_ en.htm.

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neutral, independent institutions.130 Quite often such institutions are national audit authorities.131 Fiscally disciplined PPPs can be combined with Special Economic Zones (SEZ) to attract private investment. As the polish example132 in Europe shows, SEZ are based on specific rules of business that are different than those that prevail in the rest of the national territory.133 They are aimed at creating favourable investment conditions through tax and red tape reduction and a whole liberal regulatory environment. They have an experimental aspect in as much as they allow for the application of new, for example, labour and pricing policies that can be first tested before being applied to the rest of the territory or rejected.134 Under EU laws an SEZ would be derogation to the normal way of doing business and to the concept of the internal market as a leveled playing field where fair play for all is the highest rule. Art. 3 (1) of the Treaty on the Functioning of the EU (TFEU) provides that the Union has ‘exclusive competence’ as regards the areas ‘customs union, competition policies, and conservation measures’ as well as the area, ‘common commercial policy’ as an external dimension of the internal market. For this reason, the establishment of a SEZ could be implemented only within the scope of a legislative act by the Union. However, Article 27 of the TFEU opens up the possibility of striking the balance between economically more developed and economically weaker Member States which can be achieved through formation of regionally restricted specific regulatory areas within an 130

For Portugal ‘(a) top tier international accounting firm was contracted to complete a detailed study of PPPs’, ibid, 16. See further the recommendations in EPEC, ‘The Guide to Guidance: How to Prepare, Procure and Deliver PPP Projects’ (2011) paras 1.2, 4.2, www.eib.org/epec/resources/guide-to-guidanceen.pdf.

131

See for Germany: Präsidentinnen und Präsidenten der Rechnungshöfe des Bundes und der Länder (eds), Gemeinsamer Erfahrungsbericht zur Wirtschaftlichkeit von ÖPP-Projekten Wiesbaden, 14 September 2011) available: http://www.rechnungshof-hessen.de/fileadmin/veroeffentlichungen/veroeffentlichungen_hrh/Gemeinsamer_Erfahrungsbericht_zur_Wirtschaftlichkeit_von_OEPP.pdf.

132

Smetkowski Maciej, ‘Polish special economic zones as an instrument of regional and industrial policy’ (2 July 2002) http://mpra.ub.uni-muenchen.de/39184/. For the initial application for transforming China see Claus Knoth, ‘Special Economic Zones and Economic Transformation. The Case of the People’s Republic of China’ (2000). http://kops.ub.uni-konstanz.de/bitstream/handle/ urn:nbn:de:bsz:352-opus-5013/501_1.pdf?sequence=1 For application in other countries and general information see Megan Murray, ‘What Are Special Economic Zones?; (February 9, 2010) http://ebook. law.uiowa.edu/ebook/faqs/what-are-special-economic-zones.

133

R.M. Wrobel, ‘Sonderwirtschaftszonen im internationalen Wettbewerb der Wirtschaftssysteme: Ordnungspolitisches Konstrukt oder Motor institutionellen Wandels?’, (2008) Ordnungspolitische Diskurse, No. 2008-06 http://hdl.handle.net/10419/55427. For critique on anti-democratic market radicalism see T. Fritz, ‘Transforming Europe into a Special Economic Zone- The EU’s Services Directive’ (The EU’s Services Directive July 2004) http://thomas-fritz.org/file_download/17/Fritz-vs-BolkesteinEN.pdf.

134

Poland, as a forerunner, was given permission for the formation of a total of fourteen SEZ subject to a limitation of their duration; they expire as of 31.12.2012 and 31.12.2017.

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economically weaker Member State. This would not amount to a violation of Article 175 (1) sentence 2 of the TFEU. Pursuant to this Article in conjunction with Article 174 (1) and (2) of the TFEU the internal market policy also supports the goal of cohesion. If the establishment of an SEZ passes the compatibility test with EU law, another critical aspect remains that the SEZs are considered as a variant of the enclave approach to state reform which is criticized for its lack of comprehensiveness. A key assumption in this line of thinking is that partial reforms might make more comprehensive and necessary reforms more difficult down the road. ‘Big Bang reforms’ as the argument goes, should be preferred instead. This antienclave argument might have some truth to it, but it loses some of its sway given the uniqueness of every single independent authority for example, an independent tax and revenue authority embodies an enclave and insulation within the rest of the government and given the impossibility to fundamentally change a whole country over night. An incremental enclave approach to reform could be combined with the strong sides of a federalist135 approach that would introduce self-government elements. The aim would be to ensure a local ownership to the reforms through broad participation of citizens and a focus on people who must effect the change. Local governments could partly insulate themselves against direct political influence from the center on the day-to-day operations of local administration, preserve their fiscal autonomy from the central state and consider local people as a motor of reform. For this to happen, the limits of local authorities’ freedom to shape local life should be legally defined. There are also tensions between fiscal and governmental decentralization. Local governments cannot be held accountable for public services over which they have no control. The legal challenge would be to respect local autonomy despite local government’s dependence on state grants and despite the necessity for the state to resort to local government in order to implement its policies.136



8 Concluding Remarks

The article comes to the conclusion that there has been a selective adoption of NPM by national administrative legal systems and that some of its ideas and precepts are not lost even though it is quite clear that NPM contains no blanket solutions to administrative problems and it has lost much of its initial impetus as a system of ideas. Despite the differences in national 135

Federalism has not been a success story in Greece. ‘This is the case because every measure that would decentralise competences at the sub-national level was accompanied by recentralisation by the central government.’ A. Chardas, ‘Multi-level Governance and the Application of the Partnership Principle in Times of Economic Crisis in Greece’, GreeSE Paper No.56 (March 2012) 29. http://www2.lse.ac.uk/ europeanInstitute/research/hellenicObservatory/CMS%20pdf/Publications/GreeSE/GreeSE-No56.pdf.

136

For an account of the recent German federalist reforms see A. Gromitsaris, ‘Liability and Accountability’, para 2.2, http://www.ius-publicum.com/repository/uploads/25_08_2011_11_08_Gromitsaris.pdf.

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administrative law traditions, and although the specific form and characteristic rhythm and pace differs, NPM seems to have deeply influenced the governance of public administration in European countries. However, NPM has never been ‘bought’ as an off-the-shelve reform package. It was adopted pragmatically, unsystematically and selectively. This is partly due to the fact that administrative reforms are not identical with NPM-induced reforms. Since its appearance NPM co-exists with reform efforts alien or prior to the NPM-movement. A number of NPM core ideas already belonged to the arsenal of administrative law traditions. Nevertheless, NPM could cast new light on long existing administrative law principles: The meritocratic and efficiency ideas that are part of the French ‘fonction publique’ or the contract types of the ’gestion déléquée’, as well as the German pluralistic and decentralised federal structure of service providers, all of these ideas preceded the crystallisation of NPM-principles. The advent of NPM has simply represented the opportunity to reinterpret such traditional principles of administrative law under a new light and utmost to consider them as ‘forerunners’ of NPM. Additionally, as the actual trend of re-municipalisation shows, administrative law proved to be a legal instrument capable to be used both for increasing and for reducing NPM influence. NPM has had at any rate an impact on the ‘genetic code’ of European administrative legal systems. Administrative legal systems reacted to that impact and absorbed NPM elements making them, as it were, their ‘own’ or ‘invisible’. NPM-elements that have been endorsed by administrative law are subjected to legal rationality. They become elements of legal problem-setting and problemsolving strategies. Therefore, principles that have been adopted by the legal system under the assumption that they belong to the NPM-tool kit must not necessarily be recognisable137 as part of the NPM-movement as it understands and describes itself. Market based instruments are part and parcel of modern environmental law. Regulated self-regulation is fundamental for the European regulation of network industries. Evidence based regulatory impact assessment no longer reflects a solely economic approach to regulation. Efficiency is also a legal concept. In contrast to these elements, NMP-ideas in public law become much more visible when it comes to a conflict with legal principles. This explains the focus of the discussion on performance indicators and contractualism. To what extent do PPPs form a way to circumvent fiscal norms? And to what extent are performance indicators distorting the exercise of administrative discretion, or having an impact on the quality of judicial decision making? The court system of a country can become more efficient only through organisational measures (for example through inception of specialised courts on tax matters or on competition matters and on intellectual property rights) that leave the legal character of judicial decision untouched. 137

For example they need not be recognised as ‘impact’ by C. Pollit and Sorin Dan, ‘The Impacts of the New Public Management in Europe: A Meta-Analysis’, COCOPS Work Package 1 Deliverable 1. 2011. http://www.cocops.eu/wp-content/uploads/2012/03/WP1_Deliverable1_Meta-analysis_Final.pdf.

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Finally, the debate on public sector reforms since the beginning of the Eurocrisis seems to be giving a new positive momentum to a number of well known at European and national law level NPM-principles. One of them is agencification. Being extraneous to ministerial hierarchy, independent agencies aim at effective fulfillment of administrative tasks without political influence. From a public law perspective emphasis is usually laid on the legitimacy problem. As the traditional chain of legitimacy is ex definitione interrupted, new forms of accountability become necessary. With regard to public sector reform, independent agencies appear to be a well timed and perfect fit with the need to have some ‘champions for change’ capable of guaranteeing and promoting reforms. They are a very valuable help for both fostering and monitoring reform in crisis states, notably in the fields of fiscal law, health care, reform coordination, fighting corruption and promoting privatisations whilst continuously safeguarding the public interest for example, the Independent Agency for Tax and Revenue collection, the Independent Agency for Reform, the Anti-Corruption Agency, Privatisation Agency, etc. Another NPM-element that is set to gain increasing importance in the process of administrative reforms is human resources management in the public sector. The application of recruitment/exit rules to the general government and an extensive downsizing or closing of administrative organisational structures result unavoidably in tensions with civil service laws. Civil service laws traditionally provide for a transfer, not for a layoff of redundant staff. However, staff transferred to the central administration from either state-owned enterprises or other entities under restructuring are considered economically as new recruitments. From the viewpoint of administrative law, layoffs in the public sector need to take place along with transitional arrangements, hardship clauses, and a provision for variances. Even ‘ghost workers’ are right holders under the rule of law. Here, fiscal pressure will inevitably lead to a liberalisation and flexibilisation of civil service legislation and thereby to a greater impact of NPM-ideas on the public sector, not only in the crisis states but probably in every country within the EU area. A general redesign of the traditional ‘status of civil servant’ (statut du fonctionnaire, Beamtenstatus) and a further deep change of the employment conditions in the public sector are on their way.

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Common Principles and National Traditions: Which Perspective for European Administrative Legal Scholarship? Matthias Ruffert

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common principles and national traditions

1 Introduction

While in the process of searching for a ‘European administrative law’ concept, national traditions assume a two-fold role. First, it is obvious that European administrative law cannot be construed as a synthetic artefact detached from national traditions. Whether it is theoretical assumptions or single principles or even particular rules, ‘administrative law’ is intrinsically rooted in Member States’ traditions.1 Second, it is more common to consider national traditions as an obstacle to the development of common European administrative legal thinking. The obstinate position of parts of German scholarship in the early 1990s2 or the open disrespect of the German Bundesfinanzhof or the French Conseil d’État, the latter being more flexible in the most recent years, may serve as illustrative examples.3 On the whole, the necessity to scrutinise national traditions and their relationship to common principles is more demanding than before. In spite of the importance of national traditions4, the term is somehow vague which influences the relationship of national traditions towards common principles.5 The present volume based on the fourth meeting of the Dornburg Research Group for New Administrative Law at least brings some clarity in this respect. Andrew Le Sueur identifies four characteristics6: • National traditions must relate to law and public administration. • National traditions must be performed for a long time. • National traditions develop independently of positive law; ideally, they are not codified or underlying positive law as unwritten principles, giving profile to a subject matter.7 • National traditions are of certain administrative-legal relevance. Le Sueur also shows that traditions overlap with other concepts (constitutional conventions, custom).8 1

This was recently made very clear by Rainer Wahl, ‘Entwicklungspfade im Recht’, Juristenzeitung 68 (2013), 369 at 370.

2

Summarised in Matthias Ruffert, ‘Die Europäisierung der Verwaltungsrechtslehre’, Die Verwaltung 36 (2003) 293 at 296 et seq.

3

On the Bundesfinanzhof see the clear decision in 75 Entscheidungen des Bundesverfassungsgerichts at 223; on the Conseil d’État see now C.E., 30 October 2009, Mme Perreux, RFDA 2009, 1145.

4

Cf. the different approach in Roberto Caranta and Anna Gerbrandy (eds.), Traditions and Change in European Administrative Law, 2011.

5

See the contribution by Giacinto della Cananea, in this volume, p. 123 (125): ‘When considering the burgeoning literature about law in the context of European integration, it soon becomes evident that the relationships between national legal traditions and the possibilities of convergence are controversial.’

6 7

See the contribution by Andrew Le Sueur, in this volume, p. 17 (19 et seq.).

See the contribution by Eberhard Schmidt-Aßmann, in this volume, p. 1 (4 et seq.).

8

See the contribution by Andrew Le Sueur, in this volume, p. 17 (20).

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We are thus faced with convictions and practices that are giving profile and that are legitimised by their very performance which underlie the administrative legal systems of the Member States.



2 National Traditions: The Heart of Administrative Law?



2.1 Civil and Public Law

The deficit in convergence between administrative legal systems in Europe and the importance of national traditions is rooted in legal history and can be described in a manner which is in contrast to private law.9 The reception of Roman Law starting from the Bologna school does not only mark the dividing line between the great families of legal systems in Europe, namely, civil law and common law, but also provides a common layer for all legal systems in private law that started to diverge as late as the period of codifications in the 19th century. Both effects are missing in administrative law: The trench between civil and common law is not as great as in private law, and the common ground provided by Roman law at least for the ‘continental’ part of the jurisdictions is missing. This historical-methodological peculiarity is a particular effect of the public/private law divide.10 Nonetheless, it is by no means true that there are no historical roots of common principles. Giacinto della Cananea and Andrés Boix Palop give examples from Greek mythology and Spanish scholasticism respectively.11



2.2 Politics and Historical Contingencies

A common statement can be found in comparative administrative legal studies that the political character of public law is the main obstacle for the development of common principles and even for comparison as such.12 Indeed, it can be shown that the application of traditions is by no means politically neutral, that there may even be ‘politics of tradition’ deliberately applied to conserve a certain domestic legal framework.13 Certainly, the strongest traditional argumentation is applied in France. What is designated as the ‘Republican constitutional tradition’ is more than the affir9

Cf. also the earlier volume of the Group (London meeting): Matthias Ruffert (ed.), The Public-Private Law Divide: Potential for Transformation? (BIICL, 2009).

10 11

See the contribution by Giacinto della Cananea, in this volume, p. 123 (125 et seq.).

See the contributions by Giacinto della Cananea, in this volume, p. 123 (142) and Andrés Boix-Palop, p. 83 (86) respectively.

12

Cf. Christoph Schönberger, ‘Verwaltungsrechtsvergleichung: Eigenheiten, Methoden und Geschichte’, in A. von Bogdandy/S. Cassese/P.M. Huber (eds.), Handbuch Ius Publicum Europaeum, Band IV, Verwaltungsrecht in Europa: Wissenschaft (C.F. Müller, 2011), para 71/13 et seq.

13

See the contribution by Andrew Le Sueur, in this volume, p. 17 (20).

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mation of a certain form of the State (i.e. Republic), but it underlines that it is the administration itself that shapes the State14 and sublimates into the ‘French genius’ behind administrative legal thinking.15 Of course, such ‘genius’ is largely dependent on the historical evolution in and around the French revolution. Today, it lies at the basis of a magnitude of problems: The republican spirit is nominally extended to the sphere of economic law and prevents French thinking (and practice) of economic administrative law to fully implement many of the obligations under European Union law. This explains the particular difficulty of French law to develop the law of regulation.16 Traditions that are similar in their stability (but not in their content) only exist in the United Kingdom and in Scandinavian countries. In the British administrative legal world, it is above all the development of modern government out of monarchical rule that continues to strongly influence the shape of administrative law. Therefore, new developments such as the ‘general powers’ attributed to local authorities are seen with particular criticism.17 Beyond mainland Britain, the said traditions give rise to a community of tradition. In many respects, the influence of the Commonwealth may be greater than the development of administrative law within the EU.18 In Sweden – which may be somehow representative for other Scandinavian countries – it is not the formal, monarchist structure of public government but the openness of administration towards the citizen which forms the core tradition to be preserved, from a Swedish perspective, also seen in the framework of the European Union.19 Other jurisdictions are – at least at first sight – devoid of strong traditional structures. Italy is considered to be – somehow traditionally – at ‘the receiving end of legal transplants’.20 Spanish administrative law and administrative legal thinking is obviously combined by a Napoleonic basis and a strong German influence after the establishment of democratic rule in the late 1970s.21 In Germany itself, instead of deepening traditions, administrative law and legal scholarship see a ‘dramatic reorientation’ from a concept based on judicial protection towards a framework of sound administrative decision making.22

14 15

See the contribution by Pascale Gonod, in this volume, p. 33 (38 in fn. 20).

See the contribution by Pascale Gonod, in this volume, p. 33 (40 in fn. 24). On the exemplary nature of French administrative law cf. Schönberger (supra note 12), para 37 et seq.

16 17

See the contribution by Pascale Gonod, in this volume, p. 33 (40 et seq.).

See the contribution by Andrew Le Sueur, in this volume, p. 17 (31).

18

See the contribution by Andrew Le Sueur, in this volume, p. 17 (27 et seq.).

19

See the contribution by Gunilla Edelstam, in this volume, p. 101.

20

See the contribution by Roberto Caranta, in this volume, p. 67 (69). On the idea of legal transplants cf. Schönberger (supra note 12), para 25 et seq.

21

See the contribution by Andrés Boix-Palop, in this volume, p. 83 (89).

22

See the contribution by Schneider, in this volume, p. 49 (51).

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2.3 Tradition Shaping in the Long 19th Century

Although the historical development in administrative law is different from the one in private law, it is in the long 19th century that the divergences were deepened and traditions shaped along jurisdictional borders. All 18th century efforts for a ius publicum commune came to an end.23 The combination of positivism and dualism, the lack of institutional frameworks to co-operate in administrative legal fields, the general trend towards nationalism ending up in the World War’s catastrophes were all providing an environment which was by no means favourable to the development of common traditions. It is therefore most interesting that ‘classical’ authors of the 19th century are re-read with another intention. The promising lecture of de Laferrière or Mayer might reveal core institutions of administrative law to be developed beyond the narrow framework of national jurisdictions.24



3 Elements of Tradition



3.1 National Traditions

Authors in this volume have detected a line of national traditions in the different European jurisdictions which are as follows: • The separation of powers is an important basis of administrative law in many European administrative legal systems and is profoundly influencing the structure of those systems.25 • Another aspect is the matter of liability which may be restricted in a system of strict immunities for public administration.26 • A particular (and peculiar) tradition is the separation of legal redress in Italy following either individual rights or legitimate interest.27



3.2 Common Traditions

But there is more than dividing lines in the traditional perspective of administrative law. A series of common traditions is developing either in a parallel way in the different jurisdictions or as a common basis within EU administrative law or by means of complex processes of legal transplant.28 Some of them are: 23

Particularly on Leibniz see the contribution by Giacinto della Cananea, in this volume, p. 123 (151).

24

Sabino Cassese (‘Is There a Global Administrative Law?’, in: Armin von Bogdandy et al., The Exercise of Public Authority by International Institutions, 2010, 761) goes even further and assumes that there is a basis for global administrative law in the reception of these authors.

25

See the contribution by Giacinto della Cananea, in this volume, p. 123 (134 et seq.).

26 27

See the contribution by Giacinto della Cananea, in this volume, p. 123 (179 et seq.).

See the contribution by Roberto Caranta, in this volume, p. 67 (72).

28

See the contribution by Eberhard Schmidt-Aßmann, in this volume, p. 1 (10 et seq.).

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• The basic notion of audiatur et altera pars, 29 • the need for a legal basis for any duty to pay taxes or equivalent obligations (‘no taxation without representation’)30 and • the overall issue of proportionality.31



4 Trends against Tradition



4.1 Europeanisation

Further to the elaboration of common European traditions, there is a line of trends which operate against the dominance of national traditions. The ongoing Europeanisation is of course the most important doctrinal movement. Elements of administrative law are combined in the European integrated administration. Eberhard Schmidt-Aßmann shows in this volume that the plurality of actors in the field – EU, Council of Europe, European administrative legal scholarship – cannot be overlooked.32 The discovery of ius europaeum commune by the ECJ deserves special attention,33 which is also shown in the contribution by Paul Craig who delineates the emancipation of judicial review at EU level from the French perspective and the development of a particular EU administrative legal tradition via the general principles of law.34



4.2 New Public Management – and the Counter Movement

Another unifying development lies in the rise of new management practices within public government. The integration of economic efficiency into administrative practice, the use of market mechanism in the fulfilment of public tasks and the orientation of administration towards the citizen in his function as a customer of administrative services, have deeply modified the face of public governance all over Europe.35 National traditions have been eliminated in the course of that modification. In the same way, countermovements against the dominance of economic thinking in administrative matters are often pan-European and devoid of traditional elements. In underlining democratic rule, emphasising social cohesion and developing protective formality those who are advocating autonomy of administrative law towards economic 29 30 31

See the contribution by Giacinto della Cananea, in this volume, p. 123 (142 et seq.).

See the contribution by Giacinto della Cananea, in this volume, p. 123 (148).

See the contribution by Roberto Caranta, in this volume, p. 67 (79 et seq.).

32 33

See the contribution by Eberhard Schmidt-Aßmann, in this volume, p. 1 (3 et seq.).

See the contribution by Giacinto della Cananea, in this volume, p. 123 (146 et seq.).

34 35

See the contribution by Paul Craig, in this volume, p. 153 (156).

The development in Germany is apparently more complex: See the contribution by Jens-Peter Schneider, in this volume, p. 49 (59 et seq.).

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elements are in search of elements that are common to a tradition of administrative law beyond national limitations.36



4.3 Receptiveness to Foreign Influences

National traditions are finally weakened by the continuous movement of legal exportations and implantations, cross-influencing administrative legal systems.37 Due to the fragmented nature of EU law,38 bits and pieces intruding into national legal systems have to be arranged within the existing puzzle of administrative law. We may also witness processes of transfer which go beyond the mere transplantation of single rules or principles, but are reflected in truly transcultural mechanisms.39 The reception of foreign administrative traditions in the sense of this contribution and book is by no means excluded. For some administrative systems in Europe it may even be a condition of survival. Such processes of acculturation are also linked to the idea that the broader the geographical scope of an administrative space, the more there is diversity in the strategies to govern it. 40



5 Outlook

It is important to be aware of traditions, to know their roots, to consider their stability and to reflect their eventual decline. In that sense, there may be future for European Administrative Law even in national traditions. On the other hand, a common administrative space as well as common efforts in scholarship will not be successful if national traditions are upheld in a dogmatic or even stubborn manner. Paul Craig rightly underlines the paradoxical symbiosis between tradition on the one hand and creativity on the other hand: 41 European Administrative Law (let alone global or international administrative law) will not advance without the creative establishment of common European traditions, based on the national ones. This paradoxical combination applies to political and scientific efforts. It underlies the recent political initiatives to establish a harmonised codification of principles and rules for EU administra36

See the contribution by Athanasios Gromitsaris, in this volume, p. 173. Cf. also Jacques Caillosse, ‘Legitimacy in Administrative Law? A French Perspective’, in: Matthias Ruffert (ed.), Legitimacy in European Administrative Law: Reform and Reconstruction (Europa Law Publishing, 2011), p. 9 at 24 et seq.

37

See the contribution by Andrés Boix-Palop, in this volume, p. 83 (87).

38

See the contribution by Jens-Peter Schneider, in this volume, p. 49 (64 et seq.).

39

This term is used by Karl-Peter Sommermann, ‘Veränderungen des nationalen Verwaltungsrechts unter europäischem Einfluß – Analyse aus deutscher Sicht’, in: Jürgen Schwarze (ed.), Bestand und Perspektiven des Europäischen Verwaltungsrechts (Nomos, 2008), p. 181 at 197 et seq.

40 41

See the contribution by Paul Craig, in this volume, p. 153 (164 et seq.).

See the contribution by Paul Craig, in this volume, p. 153 (157 et seq.).

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tive law42, which are supported by ReNEUAL. 43 It lies also behind all further scholarly efforts to reveal the basis of future administrative law in Europe which will be the continued aim of our Dornburg Research Group.

42

European Parliament Resolution of 15 January 2013 with recommendations to the Commission for a Law on Administrative Procedure, 2012/2024 INI, P7-TAPROV(2013)0004. See Annette Guckelberger, ‘Gibt es bald ein unionsrechtliches Verwaltungsverfahrensgesetz’, (2013) 32 Neue Zeitschrift für Verwaltungsrecht 601.

43

www.reneual.eu.

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