An EU regulation on administrative procedure in the forge

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by Sophie Perez Fernandes, Junior Editor

The EU still lacks a coherent and comprehensive set of codified rules of administrative law, especially of administrative procedural law. Without prejudice to a number of provisions scattered in the Treaties, the applicable rules are mainly enshrined in EU secondary law and are therefore essentially sectoral in scope. The gradual inclusion of procedural rules alongside the substantive regulation of a given subject has thus contributed to the fragmentation of the applicable rules, which affects the coherence of the standards of interpretation and control applicable to the exercise of administrative functions within the EU and its accessibility from the point of view of individuals. In light of the “almost silence” of EU primary law and of the predominantly sectoral nature of EU secondary law, the case-law of the ECJ was soon revealed and continues to be an essential source of general principles of constitutional and administrative law within the EU legal order.

The debate on the codification of fundamental principles of administrative law and basic rules of administrative procedure to be observed in the application of EU law began in the 1980’s and has been fueled by the development of the EU’s fields of competence and successive enlargements. The debate has known a knew impetus since the entry into force of the Treaty of Lisbon due to the addition of Article 298 TFEU according to which «[in] carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration», to which end the European Parliament and the Council shall establish provisions «acting by means of regulations in accordance with the ordinary legislative procedure». The inclusion of a «right to good administration» in the CFREU also feeds the debate. Article 41 CFREU has been pointed out as serving as a starting point or guideline for such codification. As such, the adoption of a regulation/codification of administrative procedure by the EU would serve the dual purpose of promoting open, effective and independent administration (Article 298 TFEU) and protecting the rights of individuals in their relations with it (Article 41 CFREU).

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Editorial of December 2016

European Parliament in Greece on May 18, 2016

by Mariana Canotilho, Editor
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‘Listen! Your brother’s blood cries out to me from the ground’

The 6th EASO Consultative Forum Plenary took place in Athens on 28-29 November 2016. I took part in it, as an academic, interested in EU law, and a volunteer working with refugees. A feeling of deep frustration seemed to be shared by most of the attendants (academics, NGO’s workers, EU and UN agencies’ representatives). What is being done is not enough. It is too slow, too bureaucratic; the legal framework is either insufficient or absurd and counterproductive.

EASO is the European Asylum Support Office. It plays a central role in the implementation of the EU Migration agenda and the new hotspot approach. It is the European agency more focused on the specific problems of refugees, trying to strengthen the practical cooperation among Member States on the many aspects of asylum, and providing practical and technical support to Member States and the European Commission, especially to those whose asylum and reception systems are under particular pressure.

However, it can only do so much. The meagre means don’t help, but neither does the competence set, nor the legal framework being applied. The most worrisome feature, repeatedly questioned by NGOs, UN agencies and volunteers is the ‘safe country of origin’ criteria. As part of the European Agenda on Migration, the Commission proposed on 9 September 2015 to establish a common EU list of safe countries of origin that would enable fast-tracking of asylum applications from citizens of these countries, which are considered ‘safe’ according to the criteria set out in the Asylum Procedures Directive and in full compliance with the principle of non-refoulement. This might seem a reasonable idea. However, the criteria are so strict, that countries like Turkey and Afghanistan are considered safe based on their ‘stable democratic system and compliance with international human‐rights treaties’. As this does not stop people from fleeing war and human rights violations, it only aggravates the problems, creating a group of ‘second-class refugees’, who cannot even apply to the relocation mechanism.

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R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) : Realpolitik and the Revocation of an Article 50 TEU Notification to Withdraw

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by John Cotter, Senior Lecturer at University of Wolverhampton Law School

The opening lines of a judgment – in common law jurisdictions, at least – can very often be revealing of a court’s concerns. The first five paragraphs of the collegiate High Court judgment (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) in Miller indicate very clearly the judges’ worry that their judgment would be misunderstood by sections of the media and the wider public. This judgment did not have “any bearing on the question of the merits or demerits of a withdrawal of the [UK] from the [EU]”, the Court stated. Rather, the question before the Court was a narrow constitutional issue, and a purely legal matter: whether the government could use Royal prerogative powers to give notification of withdrawal from the EU pursuant to Article 50 TEU or whether this was a matter for the Houses of Parliament. On this question, the High Court ruled that the notification under Article 50 TEU may not be given by means of Royal prerogative; rather, such notification is a matter for Parliament exclusively. While the conducting of international relations and the signing of and withdrawal from international treaties were powers generally to be exercised by the executive on behalf of the Crown, the High Court reasoned that where withdrawal from a treaty would result in changes to domestic law (as withdrawal from the EU would), such withdrawal could not be effected without Parliament.

The Court’s attempt to avoid misinterpretation of its role appears, however, to have fallen on deaf or wilfully closed ears, with the judges being subjected to attacks in sections of the media that were astonishing even by the standards of Britain’s rather histrionic tabloid press (one publication’s front page contained the headline “Enemies of the People” along with photographs of the three judges). To many of those advocating Brexit, the judgment was an unelected court playing politics and frustrating the will of the people (even though the European Union Referendum Act 2015 had not provided that the referendum result be binding). To the Court’s defenders, the judgment was the latest in a line of rulings in which the courts upheld the supremacy of Parliament over Royal prerogative powers. It is certainly the case that the High Court judgment, if upheld by the Supreme Court (which is due to hear an appeal in early December), has the potential to make the giving of the Article 50 notification a more lengthy and complex process. It is conceivable that both Houses of Parliament could use their leverage to require the government to reveal more detail on their post-notification negotiating aims. However, as a matter of realpolitik, the judgment is unlikely prevent Article 50 being triggered: Labour, the largest opposition party in the Commons has indicated that it will not vote against a Bill to give notification under Article 50, and it is unlikely that the Lords would provoke further questions about their relevance in modern Britain by blocking Brexit.

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