Studies dedicated to European administration reveal a recurring tendency to draw analogies between the constitutional structure of the European Union (EU) and that of federal orders (the United States, in particular). In both types of structure, powers are separated rather than concentrated, thereby constituting a guarantee against an abuse of power, according to Alexis de Tocqueville's famous thesis.
However, of the numerous differences between nation states (including federal ones) and the European Union, (1) one concerns precisely the subject of executive power. The "Tableau sommaire de la constitution federale" (2) sketched by de Tocqueville is helpful to the work of identifying this difference, as it emphasized that the attributes of early American government were divided, including its executive function. That is to say, the executive function in the United States was not an exclusive prerogative of the several states, as had been the case in the pre-existing confederation. It was divided, in the sense that "le gouvernement des Etats resta le droit commun, le gouvernement federale fut l'exception." (3)
This opinion has also long prevailed in studies of the constitutional structure of the European Community (EC) and of the European Union. (4) Its basis was two-fold. The Treaty of Rome does not confer the power to execute European laws on European administration: except in certain cases such as competition, execution is remitted to the national public authorities. In line with this choice, judicial review is within the jurisdiction of national judges.
Nevertheless, as illustrated by the procedure for preliminary references, national court systems and the European judicial system are not functionally separate. (5) Over the years, administrative power, too, has moved away from the initial model of European lawmaking and national implementation. To give just well-known examples, the European Commission in collaboration with committees composed of national government representatives have adopted countless pieces of administrative rules. (6) Moreover, the EU's decisions regarding national public budgets are taken within the framework of the multilateral surveillance procedure, which means that estimates and forecasts are submitted not only to the Commission, but also to all the national governments represented on the Council of the European Union.
Another trend in the administration of EU policies is that when making decisions in the traditional areas of EC intervention (like agriculture) and in the new ones (including the licensing of genetically modified organisms and the licensing of drugs), both national authorities and either the Commission or EU agencies take part in multiphase processes. These sequences of activities may be characterized more precisely as mixed administrative proceedings. (7) They do not mirror a constitutional structure based on separated powers but, rather, highlight the powers' interaction. They also raise new questions as far as judicial protection of individual interests is concerned. This became clear at the beginning of the 1990s, when an Italian agricultural firm challenged the validity of a Commission decision revoking the subsidies previously given to it. Unexpectedly, the Court of Justice of the European Communities (ECJ) refused to review the decision, arguing that the "real" decision lay in the initial opinion of the Italian agency, in favor of revocation. (8) The ECJ may be criticized for risking one of the fundamental principles of western constitutionalism: the right to judicial protection. (9) However, the underlying problem of the change in the way public powers are exercised within the EU must not be overlooked.
A primary aim of this Article, therefore, is to shed some light on administrative powers through an examination of mixed administrative proceedings. Another aim is to try to identify the common features of mixed administrative proceedings and, at the same time, those which differentiate them from other types of proceedings. …