Academic journal article Law and Contemporary Problems

Forms of European Administrative Action

Academic journal article Law and Contemporary Problems

Forms of European Administrative Action

Article excerpt

I

INTRODUCTION

This Article examines the various forms of European administration and their associated administrative law systems. From the outset, it should be understood that the expression "European administration" is not used here (as it usually is) to refer to the complex of government bodies exercising administrative powers in the European Community (EC, or "Community") (such as the European Commission, European agencies, and all other official bodies). Rather, the expression here is used to refer to the combination of Community public powers and national administrations responsible for implementing Community measures and operating as decentralized, Community government bodies. Together, the two constitute "the common administration of the European order," (1) marked by common, Community-made interests and shared substantive and procedural legal principles.

So far, the notion of "common administration" has been used by certain scholars to explain the special relationship in European governance among all of the different public administrations, both vertically (that is, the relationships between the Member States and Community bodies, such as the Commission), and horizontally (that is, the relationships among the Member States), and to understand the phenomenon of European administrative networks. The notion is now spreading from "legal science" (that is, legal scholarship) to statutory law, as evidenced by various regulations and directives, and now also by the Treaty Establishing a Constitution for Europe (hereinafter "Constitutional Treaty"). In fact, in the Constitutional Treaty, the structure and functions of both European and national public administration are addressed, and the goal of effective implementation and administration of Community law is identified as a "matter of common interest." (2)

This clarification of the meaning of European administration lays the groundwork for the central thesis of this Article: in the Community, we face the rise of a multilevel public administration in which the original Community scheme of the indirect, autonomous execution of Community policies by national administrations is being replaced by an administrative model of integration based on the criteria of flexibility and differentiation. By now, the model of polycentric public administration is standard in national systems, and it is gradually becoming so in Europe's supranational system of governance. (3) Europe's legal order contains a variety of principles capable of disciplining the new multi-level public administration that may be said to substitute an "administrative law of integration." This thesis seems contrary, however, to the prevailing academic view:

   [W]hat is lacking--and unlikely to emerge in the foreseeable
   future--is a coherent body of law structuring the practices of
   multi-level co-operation between European, national and hybrid
   authorities, as well as complex networks of governance; that is a
   body of law structuring exactly the type of activities that
   characterize so much of the European multilevel system of
   governance. (4)

The Constitutional Treaty affirms the existence of a developed law adapted to the politics of Community administration. Even though the Constitutional Treaty has yet to be signed and ratified, the origins of the Convention, the inclusive nature of the drafting process, and the prestige of the members of the Convention all suggest that the provisions regarding public administration, even without signature and ratification, have already become part of the acquis communautaire (the complete body of Community laws that Member States must respect).

This Article proceeds in three parts: Part II recounts the history of administration and of administrative law in the European Community; Part III examines the main types of administrative action in the Community; and Part IV highlights the novel elements and the shortcomings of European administrative law today. …

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