Alexander H. TÜrk

EU Administrative Governance

Sixteen contributions from European academics and legal practitioners discuss the developing modes of administrative governance in the EU. The focus is on how cooperation between public administrations at all levels has formed the core of the EUs unique system of government and governance. Some of the topics examined include European governance of

The Development of Integrated Administration in the EU and its Consequences

The discussion about the transformation of forms of government and governance in Europe cannot avoid touching upon the role of administrations or administrative actors. Within the EUs multi-level system, the activities of agenda-setting, policy formulation, and implementation all involve some form of interaction between public actors from the sub-national, national, supranational, and international levels. Cooperation amongst administrations in Europe has become the backbone of the EUs unique system of government and governance. Forms of cooperation have led to an integrated administration, which has developed in an evolutionary fashion and operates in large parts beyond the formally constituted rules of the treaties. This article explores the implications of this phenomenon and argues for the need of a changed perspective.

Administrative Law and Policy of the European Union

PART ONE: INTRODUCTION 1. The Idea of European Union Administration - Its Nature and Development 2. The Aim and Approach of this Book 3. Interdisciplinary Foundations of European Administrative Law 4. A Typology of Administrative Tasks in the European Union PART TWO: THE CONSTITUTIONAL FRAMEWORK OF EUROPEAN UNION ADMINISTRATIVE LAW 5. Sources of European Union Administrative Law 6. Principles Underlying the Relationship Between the European Union and the Member States 7. General Principles Framing European Union Administrative Law 8. Delegation and the European Union Constitutional Framework PART THREE: STRUCTURES, PROCEDURES, AND METHODS 9. Organisational Arrangements for EU Administrative Action 10. Budget Implementation and Programme Management 11. Administrative Procedures 12. Information and Administration 13. Rules and Principles Governing the Substance of Administrative Decision-Making PART FOUR: FORM AND EFFECT OF ADMINISTRATIVE ACTS - ABSTRACT-GENERAL MEASURES 14. Agenda Setting, Preparatory Acts, Planning and Framework Measures 15. Subordinate Legislation 16. Administrative Rules 17. Rulemaking by Private Parties PART FIVE: FORM AND EFFECT OF ADMINISTRATIVE ACTS - SINGLE-CASE MEASURES 18. Decisions in Individual Cases 19. Administrative Agreements 20. Factual Conduct by the Administration in Individual Cases PART SIX: ENFORCEMENT AND SUPERVISION OF ADMINISTRATIVE ACTIONS 21. Purposes and Functions of Supervision and Enforcement 22. Enforcement 23. Administrative Supervision 24. Political Supervision 25. Judicial Supervision PART SEVEN: CONCLUSION 26. The Present and Future Condition of European Union Administrative Law

Judicial review in EU law

Contents: Preface Introduction Part I: Action for Annulment 1. EU Institutions or Bodies as Defendants 2. Reviewable Acts 3. Locus Standi of Privileged and Semi-Privileged Applicants 4. Locus Standi of Non-Privileged Applicants 5. Legal Interest 6. Time-Limit in Article 230(5) 7. Grounds of Review 8. Effects of Illegality 9. Reform Part II: Failure to Act 10. Parties to the Proceedings 11. Reviewable Failures to Act 12. Procedure: Article 232(2) 13. Locus Standi 14. Grounds of Review 15. Form and Effects of the Judgment Part III: Incidental Review 16. Plea of Illegality 17. Validity Review Part IV: Non-Contractual Liability 18. Attributable Act 19. Liability for Attributable Acts Part V: Interim Relief 20. Scope of Application of Articles 242 and 243 21. Requirements for the Grant of Interim Measures 22. Procedure Conclusion Bibliography

The Concept of the “Legislative” Act in the Constitutional Treaty

The constitutionalism1 of the Community legal order as an evolutionary process of transforming an international organisation into a constitutional legal order has found its latest expression in the Treaty Establishing a Constitution for Europe.2 This document evokes the language of the constitutional state when it refers to “this Constitution” in Article I-1 and expresses its gratitude to the “European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe.” However, ambiguity is not far behind. The length of the document resembles a carefully drafted prenuptial agreement rather than a constitutional text. Moreover, the reference to the Constitution cannot disguise the fact that it has been adopted as an international treaty in the usual procedure of an Intergovernmental Conference and will have to be ratified by each and every Member State to enter into force.

Introduction: Towards a Legal Framework for Europe’s Integrated Administration

This book aims to explore the legal challenges for the dynamically developing fi eld of EU administrative law. They arise most importantly from the development towards an integrated administration in the EU.1 The book’s task is to contribute to a deeper understanding and discussion of this development’s underlying concepts and consequences. The contributions to this book look at how to ensure accountability, legality, legitimacy and effi ciency of the actors involved in administration in the EU and their actions. In short, this volume is a contribution to the developing understanding of the fast evolving area of EU administrative law. The development towards today’s system of integrated administration of the EU has been defi ned through the evolution of legal, political and administrative conditions of administering joint policies. Legal problems of an integrated administration exist against the background of the transformation of both the EU Member States and the E(E)C and EU in the process of European integration. National administrations had developed under national public law as state-specifi c structures. These refl ected diff erent identities, historical traditions of organization and certain underlying values such as regionalization or centralized unifi cation within a state. The eff ect of European integration has been to open Member States’ public law systems, obliging them to establish administrative institutions, bodies and procedures required for an eff ective exercise of shared sovereignty under the system of EU law. The reality of integrated administration thus is the story of the development of a system of decentralized yet cooperative administrative structures. An explanation of this phenomenon lies in the fact that implementation of EU legislation is still undertaken mostly at the level of the Member States. However, uniform application of the provisions and the creation of

The Institutional Architecture of EU Financial Regulation: The Case of the European Supervisory Authorities in the Aftermath of the European Crisis

The chapter discusses the new regulatory tools for the European Banking Authority and will argue that such tools, while increasing the efficiency of the financial market regulation, pose a risk to the constitutional and institutional foundations of the EU. The Union’s constitutional and institutional framework provides normatively important limitations to the conferral of powers to agencies resulting from the principles of conferral (legal basis constraint), institutional balance (delegation constraint) and democratic legitimacy (process constraints). It is argued that the drive for greater efficiency in the regulation of financial services undermines these important constraints. This view has obvious implications for the interpretation of the legal provisions providing for such tools.

Legal Challenges in EU Administrative Law by the Move to an Integrated Administration

The contributions to this book have discussed various legal aspects of the phenomenon of integrated administration in the EU and have contributed to developing a better understanding of the legal framework thereof. This has not been a simple task, not least because the founding treaties had not provided for a legal framework for this administrative integration. It was due to the evolutionary and diversified development of forms of integrated administration, that many new and unforeseen legal problems have arisen. They are often the result of forms of non-hierarchic, network-like structures and procedures of administrative cooperation in the EU. Across policy areas a general tendency can be observed of integrating a multitude of administrative actors from different jurisdictions in joint procedures. This often results in a mix of legal systems’ rules being applicable to a single administrative procedure.

The Role of the European Court of Justice in the Area of Comitology

ion, of generalisation of the real, followed by a process of returning to the real. Let us take an example borrowed from Charles Jarrosson (see above): if one knows iron, lead, gold and copper, the 637 ( ) F. P. Benoît, Notions, concepts, instruments de la connaissance juridique, PU Grenoble, 1995. 638 ( ) C. Jarrosson, La notion d’arbitrage, LGDJ, Paris, 1987. 639 ( ) C. Jarrosson, see above 50 years of Social Security Coordination Past – Present – Future 140 mind requires this double procedure of generalisation and abstraction to grasp the concept of metal. Once this stage is reached, it will be all the easier to recognise this or that metal which was previously unknown. In the field of law, the search for a notion is carried out through an analysis designed to bring together, among the elements of the real, those which lend themselves to classification under a common description. The notion will be the result of data as diverse as the history, the social and economic concept and the compared law. This process allows the notion to influence the legal reality, since it encourages the law to be placed in accord with the notion. There would then be two categories of notions, those which are ‘conceptual’, which would exist independently of what they are being used for (640), and ‘functional’ notions characterised by the role that they play. In our opinion, the notion of social security should borrow simultaneously from the two approaches. It is precisely through the instruments of the internal market that social security’s identity has been isolated in Community law: what is inherent in social security is solidarity. This is strikingly apparent from the case history of the CJ (A) and from the legislative works (B). a. Solidarity and social security in CJ case-law The very nature of social security was discerned by the CJ over 25 years ago, within the context of a conflict involving the application of the principles of free movement of goods (641). The dispute centred on ascertaining whether the prohibition of measures having an effect equivalent to quantitative restrictions on imports and exports applies to measures whereby a Member State (the Netherlands), with a view to achieving economies regarding compulsory healthcare insurance, prevents specifically named medicinal preparations and dressings from being 640 ( ) G. Vedel, JCP 1948, I, No 682. 641 ( ) Case 238/82 Duphar [1984] ECR I-523. supplied to persons insured under the scheme. It was found that 80 % of the medicinal preparations consumed in the Netherlands were imported, and that it followed that, where reimbursement by the insurance authority is excluded in respect of a medicinal preparation, purchases of that preparation fall and consequently there is a risk that the preparation in question will be totally eliminated from the national market. The CJ’s response was based on the originality of the compulsory sickness insurance sector, ‘In view of the special nature, in that respect, of the trade in pharmaceutical products, namely the fact that social security institutions are substituted for consumers as regards responsibility for the payment of medical expenses, legislation of the type in question cannot in itself be regarded as constituting a restriction on the freedom to import guaranteed by Article 30 of the Treaty if certain conditions are satisfied’ (642). And what is the nature of this ‘special nature’? The CJ did not elaborate, but the impression given was that once defined, it would serve to singularise social security and to justify separate treatment with regard to the rules of competition law. It was 10 years later that the CJ had the opportunity to specify its analysis. In the famous Poucet and Pistre (643) cases, two freelance workers challenged not the obligation to contribute to sickness and oldage risks, but not being able to choose their insurer freely, as this was imposed on them by the statutory social security schemes to which it was compulsory for them to contribute. The two insured persons took the view that the body responsible for managing the social security scheme should be regarded as constituting an undertaking in the meaning of Articles 85 and 86 of the Treaty, as the dominant position granted by the law to this body was incompatible with the common market. The CJ did not 642 ( ) The CJ concluded that, for such legislation to be in conformity with the Treaty, the choice of the medicinal preparations to be excluded must be free of any discrimination to the detriment of imported medicinal preparations. To that end, the exclusionary lists must be drawn up in accordance with objective criteria, without reference to the origin of the products, and must be verifiable by any importer. 643 ( ) Joined Cases C-159/91 and C-160/91 Christian Poucet v Assurances Générales de France and Caisse Mutuelle Régionale du LanguedocRoussillon [1993] ECR I-637 and 647. Jean-Philippe Lhernould 141 follow this line of argument, ruling that ‘Sickness funds, and the organisations involved in the management of the public social security system, fulfil an exclusively social function. That activity is based on the principle of national solidarity and is entirely non-profit-making. The benefits paid are statutory benefits bearing no relation to the amount of the contributions. Accordingly, that activity is not an economic activity and, therefore, the organisations to which it is entrusted are not undertakings within the meaning of Articles 85 and 96 of the Treaty’. What is solidarity? For the Poucet and Pistre judgments, it means providing cover for all the persons to whom it applies, against the risks of sickness, old age, death and invalidity, regardless of their financial status and their state of health at the time of affiliation. In the sickness and maternity scheme, continues the CJ, solidarity is embodied in the fact that the scheme is financed by contributions proportional to the income from occupation and to the retirement pensions of the persons making them; only recipients of an invalidity pension and retired insured members with very modest resources are exempted from the payment of contributions, whereas the benefits are identical for all those who receive them. Furthermore, persons no longer covered by the scheme retain their entitlement to benefits for a year, free of charge. Solidarity entails the redistribution of income between those who are better off and those who, in view of their resources and state of health, would be deprived of the necessary social cover. In the old-age insurance scheme, solidarity is embodied in the fact that the contributions paid by active workers serve to finance the pensions of retired workers. It is also reflected by the grant of pension rights where no contributions have been made and of pension rights that are not proportional to the contributions paid. Solidarity is therefore both an end and a means for social security. Consequently, the approach differs radically from that followed in the coordination regulations, as the formal criteria of the latter take a back seat in relation to the functional criteria of the internal market. The CJ’s reasoning was transposed to a dispute concerning the refusal of a craftsman to pay social security contributions to the Italian workers’ compensation authority in respect of accidents at work, a refusal justified by the fact that this authority would be the holder of a monopoly constituting an abuse of dominant position. The CJ adopts a similar position to that of the Poucet and Pistre judgments, adapted to the context of the risk of accident at work: ‘The concept of an undertaking, within the meaning of Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC), does not cover a body which is entrusted by law with the management of a scheme providing compulsory insurance against accidents at work and occupational diseases, such as the Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL)’. On the one hand, ‘the covering of risks of accidents at work and occupational diseases has for a long time been part of the social protection which Member States afford to all or part of their population’. On the other, the Italian scheme providing insurance against accidents at work and occupational diseases, ‘insofar as it provides for compulsory social protection for all non-salaried workers in the non-agricultural professions who carry out an activity classified as a risk activity by the law, pursues a social objective’. This is because ‘Such a scheme is intended to provide all the persons protected with cover against the risks of accidents at work and occupational diseases, irrespective of any fault which may have been committed by the victim, or by the employer, and therefore without any need for civil liability to be incurred by the person drawing benefits in respect of the risk activity’. Moreover, ‘Furthermore, the social aim of that insurance scheme is highlighted by the fact that benefits are paid even when the contributions due have not been paid, which obviously contributes to the protection of all insured workers against the economic consequences of accidents at work or occupational diseases’. The CJ then highlights several elements which establish that the scheme is guided by the principle of solidarity: it is ‘financed by contributions the rate of which is not systematically proportionate to the risk insured’, with the 50 years of Social Security Coordination Past – Present – Future 142 amount of benefits paid being ‘not necessarily proportionate to the insured person’s earnings’. The absence of any direct link between the contributions paid and the benefits granted ‘thus entails solidarity between better paid workers and those who, given their low earnings, would be deprived of proper social cover if such a link existed’ (644). How would the CJ react in relation to supplementary schemes? In the FFSA (645) case, it chose, on the basis