An EU regulation on administrative procedure in the forge


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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