Judicial Review of European Administrative Procedure
Schwarze, Jurgen, Law and Contemporary Problems
"Form is the sworn enemy of arbitrariness, the twin sister of liberty." (1) In this spirit, the role of a well-regulated administrative process in securing liberty has been emphasized repeatedly. Like its Member States, the European Community (EC) has submitted itself to the principle of the rule of law, including the obligation to adhere to impartial and fair administrative procedure.
This Article examines the requirements set down in the case law of the Court of Justice and the Court of First Instance that serve to guarantee a fair and impartial administrative process. It also considers whether improvements should be made to the design of the administrative process and, if so, what kind. The survey is not exhaustive but concentrates on selected questions that are essential in practice. The Article's scope is defined by exploring, in some depth, the two terms key to this discussion--"direct" and "indirect" implementation of administrative law.
A. Judicial Review
In Les Verts v. Parliament, (2) the European Court of Justice emphasized that the European Community is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid judicial review of their actions to determine whether those actions are in conformity with the Treaty Establishing the European Community ("Treaty"). The Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice and the Court of First Instance to review the legality of measures adopted by the EC's institutions. (3) At present, under Article 230(4) of the Treaty, individuals have access to the European Courts only if the act in question directly and individually concerns the complainant. For this reason, the system of legal remedies has often been criticized as being too narrow, particularly regarding direct legal protection of individuals against general legal acts. The Court of Justice has recently pointed out, however, that broadening access to judicial review by allowing individuals to seek remedies against general legal acts--contrary to the wording of Article 230(4) of the Treaty--would go beyond its powers as a court. Instead, it is the responsibility of the Member States to alter their statutory provisions to create legal remedies for individuals. (4) Notably, in the Treaty Establishing a Constitution for Europe, the European Convention has proposed that legal protection should be extended "against a regulatory act which is of direct concern to [the complainant] and does not entail implementing measures." (5) This seems to be an acceptable compromise between the necessities of adequate judicial protection of the individual and the prevailing view in the Member States that general legal acts should as a matter of principle not be subject to direct judicial challenges by individuals.
The central provision governing the principles of judicial review is Article 230 of the Treaty. Following the model of French administrative law, Article 230(2) states four grounds of action to annul an administrative action: lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or of any rule of law relating to its application, and misuse of powers. That infringement of an essential procedural requirement is stated separately is remarkable since it is already covered by the general provision of Art. 230 (2) (infringement of the Treaty or of any rule of law relating to its application). (6)
Article 230 deals with the judicial control of administrative procedure in the narrow sense--specifically, infringement of an essential procedural requirement. It also includes certain aspects of substantive grounds for annulment, such as infringement of the Treaty or infringement of any rule of law relating to its application. The latter issues represent some of the most interesting and most recent developments in the case law of the European Courts. …