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).

To this sense are designed the two first documents adopted by the European Parliament on the adoption of rules under Article 298 TFEU – the European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union (here) and the European Parliament resolution of 9 June 2016 for an open, efficient and independent European Union administration (here). In both resolutions, the European Parliament starts from the following statement: EU’s existing rules and principles on good administration are scattered across a wide variety of sources (primary and secondary law, ECJ’s case-law, soft law and unilateral commitments) which makes it difficult for citizens to understand their administrative rights under EU law. Therefore, and summarizing the substance of the arguments in favor of the adoption of a regulation/codification on administrative procedure by the EU, the European Parliament points out that the said regulation/codification (i) would help eliminate the confusion currently arising from the parallel existence of different codes for most of EU institutions and bodies, (ii) would ensure that EU institutions and bodies apply the same basic principles in their relations with citizens, underlining the importance of such principles; (iii) would, therefore, contribute to compliance with the rule of law as it would enhance legal certainty and fill gaps within the EU legal system, and (iv) would enhance EU’s legitimacy and increase the confidence of citizens in EU’s administration. Identifying the lack of confidence on the part of citizens as a «pressing problem» facing the EU today, the European Parliament thus considers the adoption of a regulation on administrative procedure as the next step towards bringing the EU closer to citizens, since codified rules on administrative procedure are clearer and more accessible than rules scattered sectorially and principles developed in case-law.

In both of these documents, the administrative authotities of the Member States, even when acting within the scope of application of EU law, are excluded from the scope of application of the proposed regulation. In addition to questions of necessity/convenience and that, ultimately, any undertaking to that effect depends on the political will of the Member States, the adoption by the EU legislature of a general discipline of administrative procedure applicable not only to EU institutions and bodies, but also to the Member States’s authorities when acting within the scope of application of EU law, is primarily a matter of competence. On the issue, the (academic) proposal presented by the Research Network on EU Administrative Law (ReNUAL) setting out Model Rules on EU Administrative Procedure is based on an asymmetric definition of the scope of application of the provisions to be adopted under Article 298 TFEU. The proposal limits the scope of application of the model rules to all EU authorities (EU institutions, bodies, offices and agencies), but does not extend to Member States’ authorities (unless EU sector-specific law renders them applicable). However, the proposal does contain certain provisions regarding activities which «unavoidably also concern Member States’ authorities» – provisions on mutual assistance between the EU and the Member States’ authorities and inter-administrative information management. Under the ReNUAL Model Rules on EU Administrative Procedure such provisions are, thus, applicable to Member States’ authorities as «[it] would be extremely dysfunctional to regulate only the input or actions of EU authorities in such inter-administrative arrangements of intensive collaboration.»

The aforementioned documents are intended above all to promote the debate on the codification/regulation of administrative procedure by the EU in order to assess the existing possibilities and the limits to be respected, and thus to enable the effective application of said regulation if and when adopted. In particular, the current solution to exclude Member States’ authorities from the scope of application of the rules to be adopted on the basis of Articule 298 TFEU is one of caution. Since the administrative law of many Member States already incorporates a general regulation/codification of administrative procedure, it may be preferable to defer the inclusion of Member States’ authorities for a later date, allowing in the meantime the consolidation of the codification/regulation adopted under Article 298 TFEU within the EU legal order and, desirably, its assimilation in national legal systems. To this end, it would be advisable that the codification/regulation to be adopted under Article 298 TFEU should be worded as if it were applicable to Member States’ authorities. This would allow national legal communities to internalize the solutions contained therein when shaping, interpreting and applying national rules on administrative procedure, but also to individuals to become familiar with these same rules.

Picture credits: MEPs (…)  by European Parliament.

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