Academic journal article Law and Contemporary Problems

European Principles Governing National Administrative Proceedings

Academic journal article Law and Contemporary Problems

European Principles Governing National Administrative Proceedings

Article excerpt

I

INTRODUCTION

The transition from the original monist to the contemporary pluralist model of administrative organization has clearly affected the discharge of European Community ("Community") activities. (1) In the original, unitary framework of Community administrative organization, activities were carried out on the basis of fixed, predetermined criteria. The original model was replaced by a multi-organizational framework, which made it necessary to articulate decisionmaking criteria more responsive and sensitive to different public purposes. (2) As a result, administrative proceedings have become more diverse and their rules more numerous and complex. The administrative proceeding has come to hold a prominent position in the legal discourse, at both the national and the Community levels.

The subject of administrative proceedings was originally given little regard. The founding Member States of the Community traditionally considered only the final conclusive act or decision of an administrative proceeding to be legally relevant. The preparatory proceedings assumed a marginal value because they were governed by the criteria of good organization, rather than by legal criteria. Similarly, procedural defects were important only insofar as they contributed to the invalidity of the administrative act or decision. (3) This orientation also took root at the supranational level. As a result, activities leading to conclusive administrative acts or decisions had merely internal significance and were thus considered irrelevant in the relationship between the administration and the individual.

Particular features of the original Community also tended to undermine the importance of administrative proceedings. For example, the first version of the Treaty Establishing the European Community ("EC Treaty"), structured the Community as a legal order with particular ends. (4) Thus, the EC Treaty seemed to be concerned only with acts. The original Community also failed to distinguish between legal acts and administrative acts, and generally tended to de-emphasize the latter. Finally, the Community's limited bureaucratic structure, built upon the principle of indirect implementation of Community policies by the Member State administrations, lacked the resources to devote serious attention to administrative law issues.

Recently, more attention has been paid to administrative law in the Community. Two factors can account for the change. First, national laws have been enacted to govern the proceedings. These laws can be general but can also be organic and detailed. (5) Second, following the expansion of Community activities, the Community system became a general legal order similar to those of nation-states. Consequently, the role of administration and administrative proceedings expanded.

Forms of joint administration and cooperation have emerged out of the implementation of the principle of subsidiarity and the related criteria of concurrent competences. The result has been a marked increase in detailed administrative procedures in both the Community and the national arenas. However, Community legislators and judges, like their national counterparts, have also contributed to the development of administrative procedure law by regulating specific areas, such as the right of access to documents, and by generalizing rights derived from administrative proceedings in a particular sector, such as public contracts. Moreover, the Court of Justice has affirmed that general EC Treaty principles also apply to administrative proceedings and that there is a clear separation between administrative and law-making functions.

Thus, the initial approach of disregarding administrative proceedings has given way to a much greater awareness of them. Moreover, the subject has now become central to an understanding of the Community legal system.

II

THE LAW GOVERNING PROCEEDINGS AT THE COMMUNITY LEVEL

The law governing administrative proceedings at the supranational level is derived from both Community legislation and the jurisprudence of the European Courts. …

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