–Luca de Lucia, University of Salerno, reviewing Carol Harlow & Richard Rawlings, Process and Procedure in EU Administration (Hart Publishing, December 2014, 352pp)
This book by Carol Harlow and Richard Rawlings brings an important enrichment to the literature on European public law. Administrative procedure is at the centre of the analysis and is defined as ‘a course of action, or steps in implementing a policy, or part of an administrative process’. In particular the book aims to ‘combine a general discussion of the role and contribution of administrative procedure with a carefully selected set of case studies to cast light on the way in which procedural rules develop and how they are used by administrators, economic actors and to a limited extent by civil society’. The book is divided into 13 chapters.
Six chapters are dedicated to general topics: the transformation of the institutional components of European governance: the Member States, the Commission, the network of committees and agencies (Chap. 1); tenets, values and objectives of EU administrations, with special reference to the consequences of the new public management, soft governance and to better and smart regulation (Chap. 2); the proactive role of the EU courts and the European Ombudsman in the construction of the administrative procedure (Chap .3); the normative powers and the executive acts of the Commission in particular with regard to the innovations of the Lisbon Treaty and the role that civil society organisations can play in the executive law-making (Chap. 4); the complex and contradictory battle for openness and transparency in EU administration (Chap.5); the problems and innovations in the infringement procedure (Chap. 7).
The remaining six chapters tackle sectorial themes: the complex path of the law on public procurement (Chap. 6); the modernization of competition policy (Chap. 8); the evolution and key issues in cohesion policy (Chap. 9); the Europol case (Chap. 10); the policies on the regulation of financial markets up until the Single Supervisory Mechanism (Chap. 10); the EU administrative procedure in relation to international law, with reference to the Aarhus Convention and anti-terrorism sanctions (Chap. 12). In chapter 13 the authors bring together the various threads of the discussion.
The book is full of information and interesting considerations that, through a functionalist approach, reveal the contradictions, weaknesses and the potential of the European administrative procedure. Many of the views expressed can be widely shared. The subjects tackled are many, as are the issues that arise. A couple of the general themes that recur in the book will be discussed briefly here.
The first topic regards the three ‘C’s of European administration – Communication, Cooperation and Coordination – which for the authors represent the ‘hidden wiring’ (or ‘super glue’) of the network governance. The concept of network governance is used because, unlike others (for e.g. multi-level governance, or composite administration), it helps focus attention on the plurality of subjects, separate but independent, who participate interactively in the European administration.
The choice of the three Cs is in line with a wide area of literature on this matter and allows the authors to examine in depth the ‘network governance’ of the various sectors in which the EU operates. However, the pluralistic nature of European administration generates a fundamental question: doesn’t the interpretation that revolves around the three Cs end up offering a rather conciliatory image of the reality?
This question arises since European norms are full of mechanisms for resolving conflict between public bodies. A glance at the sectors examined in the book confirms this view. Consider for example the Appeals Committee (Art. 6, Regulation no. 182/11), which represents an instrument to resolve a disagreement between the Commission and a comitology committee; or the judgement of the Court of Justice C-64/05 that interprets Art. 4 of Regulation no. 1049/01 (regarding public access to documents) as a resolution norm for a dispute between a European Institution and a Member State within proceedings brought by a private party; the infringement procedure (Art. 258 TFEU) which is, in itself, a means by which to resolve conflicts. Similar settlement provisions can be found regarding the network of competition authorities[1], in the decision that instituted Europol (Articles 14, paragraph 5 and 52, Council decision no. 2009/371/GAI), and finally in the regulations instituting the European Supervisory Authorities (e.g. Art. 19, Regulation no. 1093/2010).
Such examples suggest that a fourth C – Conflict – contributes to the functioning of European administration, making the system more flexible. The procedure here carries out an essential function, as it allows physiological diversities between administrations to emerge (opinions, interests, traditions etc.), and aims, as far as possible, to find solutions based on a compromise logic rather than an adjudicatory rationality; it aims therefore to transform dissent into cooperation. The techniques of composition are different in the various sectors and offer different levels of protection to the authorities involved; all of them, however, seek to govern administrative pluralism in order to safeguard the overall coherence of the system.
The authors argue that in some fields there has been a significant centralisation of functions due to due to the economic/financial crisis. This does not, however, imply a reduction in administrative conflicts. The complex institutional architecture of the European Supervisory Authorities or of the Single Supervisory Mechanism is a confirmation: the norms concerning this in fact provide for various and structured procedural instruments aimed at preventing, or resolving, disagreements between public bodies. The fourth C represents therefore an important concept through which to fully understand the actual functioning also of the legal areas where a strong administrative centralisation has been undertaken.
The procedural complexity connected to the management of conflicts gives rise to a second general theme that recurs in the book: eurolegalism. As it is well known, according to this view[2], the European legal order ‘relies on detailed rules containing strict transparency and disclosure requirements; legalistic and adversarial approaches to regulatory enforcement and dispute resolution…; active judicial review of administrative action; and empowerment of private actors to enforce legal norms’[3]. The book of Harlow and Rawlings makes reference to this concept many times: it is spoken of when looking at the European administrative procedure in general, at the regulation of public procurement, the infringement procedure (with reference to the participation of private parties), as well as competition policies and those concerning the environment.
Essentially, the authors believe that the complexity of the procedures often causes delays and inefficiencies and hence encourages the proliferation of litigation; at the same time, they express a certain disapproval of the tendency of European Courts to invade national procedural autonomy, often adopting a different standard of review for the States than for the European institutions. This is a view that can only be partly shared.
In order to fully understand this point, a distinction must be made between the proceedings conducted by European authorities and those regulated by EU law and managed by national administrations.
On the former, in addition to what has been said on administrative conflicts, it must be observed that, as in national laws, the administrative procedure at times is the place where negotiation takes place between the administration and the private parties affected, allowing them to make strategic choices. Looking at some of the sectors mentioned by Harlow and Rawlings: the infraction procedure represents, as already noted, a ‘process of negotiation’, aimed at facilitating ‘an agreement between the Commission and the Member State’ (C-514/11 P, 63). It cannot be excluded, however, that a wise regulation of the participation of private parties in the procedure can lead to an improvement in this function.
Moreover, it should be reminded here how the norms regarding competition encourage solutions which are agreed between the Commission and the companies[4]. From 2009 to 2013, out of 58 competition cases (antitrust and cartels), half of them were concluded by the Commission with a consensual (and simplified) procedure: 8 with cartel settlements (Commission Regulation no. 622/2008) and 20 with antitrust commitments (Art. 9 Regulation no. 1/03)[5]. Concerning environmental laws, the example of Regulation no. 1367/2006 regarding the application of the Aarhus Convention to the EU institutions can be cited: according to the regulation, non-governmental organisations, before instituting proceedings in front of the EU judge against a measure of individual scope under environmental law, may make a request for internal review to the competent EU institution or body. Thereby the administration, during this procedure, is bound to evaluate the reasoning of environmental organisations, with the aim of adopting a definitive decision. In this area, there was a risk of judicialization. This risk was, however, averted by the Court of Justice (C-404 and 405/12 P), which held the validity of Regulation no. 1367/2006 in relation to the Aarhus Convention, in so far as it excludes from internal review (and therefore access to justice) acts of general scope (i.e. decisions for which until now an internal review was required).
In essence, it is limiting to claim that procedural complexity at European level causes only delays, inefficiencies and an increase in litigation. In reality, in some cases it can also have the opposite effect, given the negotiation function of the procedure itself. With different degrees, these norms seem to reflect a characteristic of European governance which, in some fields, encourages a managerial conduction (both economical and efficient) of the procedure (e.g. C-441/07, § 35 and 55 s). It would therefore be interesting to connect these decisional models in a more analytical way with those principles and values of European administration that the authors so brilliantly outline in Chapter 2.
With regard to the impact of European norms on national administrative procedures, the idea of eurolegalism seems to have a limited heuristic capacity, both when this concept is used to indicate pointless normative complications aimed at ‘normalising’ national traditions, or when it is called upon to describe an individualistic drift of the European decisional process (connected to judicial implementation)[6].
As the authors clearly demonstrate, there are certainly many legislative excesses (e.g. over-detailed directives) and contradictions in judiciary decisions; furthermore, with the increase in the functions of the European administrations, the double standards of judicial review do deserve to be deeply rethought. The phenomenon is, however, more complex. Just to give one example: consider the classic theme of the direct effect of directives in case of non-transposition or incomplete or incorrect transposition. The recognition of rights of private parties does not stem here from a desire to limit the implementation of public policies, but on the contrary, from the intention to make European norms effective. In this case, the possibility to access the courts is established, as well as for individual, also for the general interest in the correct transposition and execution of EU legislation.
This issue cannot be looked at in depth here. It would have been interesting, however, to compare the notion of eurolegalism with other concepts – for example that of the status procuratoris of the citizen[7] or the principle of functional subjectivation[8]; this could have given a richer prospective to the study.
Ultimately, one of the most interesting challenges in European (administrative) law lies in the comparison and the mix between different settings and traditions. The book by Harlow and Rawlings offers some important elements to move forward in this direction.
Suggested Citation: Luca de Lucia, Book Review: Process and Procedure in EU Administration, Int’l J. Const. L. Blog, Feb. 27, 2015, at: http://www.iconnectblog.com/2015/02/book-review-process-and-procedure-in-eu-administration
[1] Paragraph 54, letters a) and b), Commission Notice on cooperation within the Network of Competition Authorities (O.J. C 101, 27/04/2004, 43–53).
[2] This is the European version of American ‘adversarial legalism’: R.A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge MA: Harvard University Press, 2001).
[3] R.D. Kelemen, Eurolegalism. The Transformation of Law and Regulation in the European Union (Cambridge MA: Harvard University Press, 2011) 41; Id., ‘Eurolegalism and Democracy?, (2012) 50 JCMS, 2012, 55.
[4] See also Art. 18 (consensual dispute resolution) of Directive 2014/104 regarding actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union.
[5] Commission Staff Working Document Accompanying the Report on Competition Policy 2013, SWD (2014) 148 final 20.
[6] R.D. Kelemen, ‘Eurolegalism and Democracy’, cit., 63 and 66.
[7] J. Masing, ‘Der Rechtstatus des Einzelnen im Verwaltungsrecht’ in Hoffmann-Riem, Schmidt-Assmann, Vosskuhle (eds), Grundlagen des Verwaltungsrechts, (Münch: Beck, 2012) 484.
[8] M. Ruffert, ‘Rights and Remedies in European Community Law: A Comparative View’ (1997) 34 CMLR 1997 307.
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