LEGAL RESEARCH PAPER SERIES Paper No 76/2013

July 2013

A General Law on Administrative Procedure, Legislative Competence and Judicial Competence PAUL P. CRAIG

(2013) 19 European Public Law 503

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A General Law on Administrative Procedure, Legislative Competence and Judicial Competence Paul CRAIG* The desirability having a general law on administrative procedure has been debated in the past and has now come back on the agenda, in part at least because of support from the Committee on Legal Affairs of the European Parliament. If such a law, or something equivalent thereto, is developed there will be a range of issues to address concerning its scope and content.This article considers the rationale for such an instrument, and the type of subject matter that might be included.The principal focus is however on the logically prior issue as to the competence to enact such an instrument. This was questioned in the pre-Lisbon world, and question marks remain post-Lisbon. It will be seen moreover that resolution of this question raises interesting and important issues concerning the relationship between legislative and judicial competence within the EU.

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INTRODUCTION

The desirability of a general law to regulate administrative procedure has been debated for some time in the academic literature.1 This article does not traverse this terrain again. Suffice it to say that my own view is that such a law would be beneficial for the reasons advanced by Ziller and Mir-Puigpelat:2 it can enhance the clarity of, and facilitate access, to the law; increase the coherence of principles and procedures; set up default procedures to fill gaps in existing law; and establish the functions of administrative procedure. A general law could therefore function *

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Professor of English Law, St John’s College and the University of Oxford. I am grateful for comments from Kieran Bradley on an earlier version of this paper. European Ombudsman, The European Code of Good Administrative Behaviour (2005), available at http://www.ombudsman.europa.eu/resources/code.faces; Carol Harlow, Codification of EC Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot, 2 European L. J. 3 (1996); Martin Shapiro, Codification of Administrative Law: The US and the Union, 2 European L. J. 26 (1996); Jacques Ziller, Is a Law of Administrative Procedure for the Union Institutions Necessary? Introductory Remarks and Prospects, European Parliament, DG for Internal Policies, 2010; Oriol Mir-Puigpelat, Arguments in Favour of a General Codification of the Procedure Applicable to EU Administration, European Parliament, DG for Internal Policies, 2011, http://www.europarl.europa.eu/activities/committees/studies.do?lan guage=EN; http://www.reneual.eu/. Ziller, supra n. 1; Mir-Puigpelat, supra n. 1.

Craig, Paul. ‘A General Law on Administrative Procedure, Legislative Competence and Judicial Competence ’. European Public Law 19, no. 3 (2013): 503–524. © 2013 Kluwer Law International BV, The Netherlands

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as a boilerplate, which could be supplemented by more sector-specific norms that address the needs of particular subject matter areas. The detailed contours and content of such a law remain to be determined. Thus, the Committee on Legal Affairs of the European Parliament passed a resolution arguing in favour of the development of such a law, which would apply to all EU institutions, agencies, offices and bodies in relation to direct administration and individual administrative decisions,3 and this has been affirmed by resolution of the European Parliament.4 The proposed EU law would establish default principles of administrative procedure where no sector-specific rule existed, but such sectoral rules should not provide less protection than the general procedural law. The current proposal is for a set of principles such as legality, proportionality, non-discrimination, legitimate expectations and the like to be set out a relatively high level of generality, with more detailed specification of the process rights that should be applicable in terms of hearings, access to the file, reason giving, rights of the defence and the like. There is, moreover, a research network on EU Administrative Law, ReNEUAL,5 which is currently engaged in research designed to produce best practice guidelines and restatements on EU procedural law, which may lead to a more formal law. The research covers procedures relating to rule-making, contracts and information management as well as individualized decisions. This article is concerned with the legal competence to enact such a law. This was questioned in the pre-Lisbon world, and uncertainties remain post-Lisbon. It is, therefore, important to address this issue, since otherwise the initiative for such a law will be stopped at the outset on the assumption that the EU has no competence when the issue has not been thoroughly analysed and examined. The discussion in the first part of the article is primarily textual, conducted through analysis of the relevant Treaty articles.The initial focus is on the extent to which norms relating to administrative procedure have been made in sector-specific areas, which are then applicable to EU institutions and national administration. This is followed by examination of Article 298 TFEU, a new addition to the Lisbon Treaty, and considers whether it could serve as the legal foundation for enactment of a general law. The discussion within this part concludes with analysis of Article 352 TFEU as the basis for competence to enact a general law. 3

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Committee on Legal Affairs, Draft Report with Recommendations to the Commission on a Law on Administrative Procedure of the European Union, 2012/2024, 21 June 2012, Rapporteur Luigi Berlinguer. European Parliament Resolution of 15 January 2013 with recommendations to the Commission for a Law on Administrative Procedure, 2012/2024 INI, P7-TAPROV(2013)0004. http://www.reneual.eu/.

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The discussion in the second part of the article is more wide-ranging and normative in nature. Competence to enact a general law of administrative procedure brings into sharp focus the relationship between judicial competence and legislative competence under the constituent Treaties. This issue has arisen before, most notably in debates in the 1990s concerning the EU’s competence to ratify the European Convention on Human Rights (ECHR). This particular problem was obviated by changes made by the Lisbon Treaty. The more general issue concerning the relationship between legislative and judicial competence nonetheless remains a live one. It raises intriguing questions concerning the nature of Treaty interpretation that underlies the ascription of competence to the EU judiciary, given that the courts have developed general principles of law that bind EU institutions and Member States when they act in the sphere of EU law. It raises important questions concerning the implications of the existence of this judicial competence for the capacity of the legislature to regulate the same subject matter, and for the way in which we interpret Treaty articles dealing with legislative competence in this sphere. The second part of this article will therefore examine the principles that underlie the relationship between judicial and legislative competence, and the implications that this has for the legislature’s capacity to enact a general law of administrative procedure. 2

THE LISBON TREATY AND THE LIMITS OF EU COMPETENCE

It is axiomatic that the EU only has the competence attributed to it by the constituent Treaties. We must therefore look to the Lisbon Treaty for provisions that might ground authority to make rules concerning administrative procedure that are applicable to EU institutions and Member States. It is fitting to begin this inquiry with the less contentious propositions, and move outward from there. 2.1

SUBJECT MATTER SPECIFIC RULES OF ADMINISTRATIVE PROCEDURE

It is generally accepted that the EU can stipulate norms of administrative procedure that apply to EU institutions and national agencies pursuant to specific Treaty articles dealing with different subject matter areas. This is exemplified by the regime applicable to telecommunications. The Framework Directive6 provides detailed rules of administrative procedure applicable to national regulatory agencies administering the EU regulations on 6

Directive of the European Parliament and of the Council 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ 2002, L108/33, as amended by Directive 2009/140 [2009] OJ L337/37.

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telecommunications. Thus Member States must guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organizations providing electronic communications networks, equipment or services.7 Member States must ensure that national regulatory authorities exercise their powers impartially, transparently and in a timely manner, and that they have adequate financial and human resources to carry out the task assigned to them.8 The national regulatory authorities must have separate annual budgets.9 There are in addition provisions designed to prevent decisions of national regulatory authorities being overturned by other bodies, and to protect the members of these national authorities from outside interference, or dismissal where there are no adequate reasons for this course of action.10 The rules on institutional autonomy are complemented by equally detailed provisions concerning process rights for those affected by the regulatory regime. Member States must ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved.11 The Member States have a duty to collect information on the subject matter and number of appeals, the duration of the appeal proceedings and the number of decisions to grant interim measures.12 The process rights are not limited to circumstances where there is adjudication involving an appeal by a particular undertaking. These rights extend to consultation in the making of norms of a more generalized nature. Thus, subject to limited exceptions, where national regulatory authorities intend to take measures in accordance with the Framework Directive or specific Directives which have a significant impact on the market they must give interested parties the opportunity to comment on the draft measure within a reasonable period. The national regulatory authorities must publish their national consultation procedures and establish a single information point through which all current consultations can be accessed. The results of the consultation must be made publicly available, subject to exceptions for confidentiality.13

7 8 9 10 11 12 13

Ibid., Art. 3(2). Ibid., Art. 3(3). Ibid., Art. 3a. Ibid., Art. 3a. Ibid., Art. 4(1). Ibid., Art. 4(3). Ibid., Art. 6.

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The Directive on Integrated Pollution Prevention and Control14 provides another example. It stipulates that the public should be given access to information concerning a permit application in order to be able to comment thereon before a decision is reached.15 It is moreover incumbent on Member States to ensure that, in accordance with the relevant national legal system, members of the public concerned have access to a review procedure before a court of law or other independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive, provided that they have a sufficient interest, or maintain that there has been impairment of a right, where the administrative procedural law of a Member State requires this as a precondition for bringing an action.16 A corollary of this obligation concerning access to justice is that Member States must ensure that practical information is made available to the public on access to the administrative and judicial review procedures.17 This Directive was amended and strengthened by a more general Directive concerned with public participation and the environment.18 In addition to this amendment the Directive makes provision for public participation in a number of areas. Member States have an obligation to ensure that the public is given early and effective opportunities to participate in the preparation and modification or review of plans or programmes in a wide variety of areas concerned with the environment, including water, hazardous waste, packaging and packaging waste, and air quality.19 The Member State must ensure that the public is informed about proposals, their right to participate and the body to whom comments should be sent.20 The Directive emphasizes that the public must have this opportunity to comment while all options are open and before decisions on the plans are made; that the resultant decision should take account of the comments received; and that reasons should be given for the decision reached.21 It is for the Member State to

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15 16 17 18

19 20 21

Council Directive 96/61/EC of 24 September concerning integrated pollution prevention and control [1996] OJ, L257/26; Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version) [2008] OJ L24/8. Directive 2008/1, supra n. 14, at Art. 15. Ibid., Art. 16. Ibid., Art. 16(5). Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156/17, Art. 4. See also, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance [2011] OJ L26/1. Directive 2003/35, supra n. 18, at Art. 2(2). Ibid., Art. 2(2)(a). Ibid., Art. 2(2)(b)−(d).

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identify the public entitled to participate for these purposes and the detailed arrangements for the participation. The final example for present purposes can be drawn from competition law, which is based on Regulation 1/2003.22 There is a right to a hearing for the undertakings concerned by the proceedings before the Commission takes a decision, and the Commission must base its decision only on objections on which the parties have been able to comment.23 The statement of objections must be notified to each of the parties and the Commission must set a time limit within which the parties may inform it in writing of their views.24 It is open to the parties in their written submissions to set out all facts known to them which are relevant to their defence and to submit relevant documentation.25 The Commission must give parties to whom it has addressed a statement of objections the opportunity to develop their arguments at an oral hearing if they so request in their written submissions.26 Complainants must be closely associated with the proceedings. If the Commission or national competition authorities consider it necessary, they may also hear other natural and legal persons. Applications to be heard by such persons shall be granted where they show sufficient interest.27 The rights of defence of the parties concerned must be fully respected in the proceedings.28 They are entitled to access to the file, subject to the legitimate interest of undertakings in the protection of their business secrets.29 The Commission decision must contain reasons for the conclusion reached.30 There are in addition procedural rights for complainants. The preceding examples reveal the detailed norms concerned with administrative procedure imposed on national administrations applying EU law in specific subject matter areas. They also reveal something less obvious, which is significant for the subject of this article. The Treaty provisions on which the preceding directives and regulations were based differed, which is unsurprising given the difference in subject matter.They nonetheless have an important thing in common. None of the Treaty articles contained any express power to make regulations or directives relating to the administrative procedure applicable at 22

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25 26 27 28 29 30

Council Regulation 1/2003/EC of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1; Report on the functioning of Regulation 1/2003, COM(2009) 206 final. Regulation 1/2003, supra n. 22, at Art. 27(1). Commission Regulation (EC) 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Arts. 81 and 82 of the EC Treaty [2004] OJ L123/18,Art. 10(1)−(2). Ibid., Art. 10(3). Ibid., Art. 12. Regulation 1/2003, supra n. 22, at Art. 27(3). Regulation 1/2003, supra n. 22, at Art. 27(2). Regulation 773/2004, supra n. 24, at Arts. 15–16. Cases T-374, 375, 384 and 388/94, European Night Services v. Commission [1998] ECR II-3141.

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national level. The Treaty articles simply contained an explicit competence to make regulations or directives to govern the area, and this was interpreted to include rules relating to national administrative procedure.31 This is, in my view, perfectly legitimate, and nothing said here should be taken to indicate the contrary. The reason for emphasizing the point at this juncture is that it is relevant more generally for the way in which we approach the interpretation of Treaty articles that pertain to the imposition of norms of administrative procedure on national administrative bodies. It cannot plausibly be argued in the light of the preceding examples, and indeed many others, that express Treaty authorization is a condition precedent for competence to make norms regulating national administrative procedure. The principle that emerges from these examples is that such norms can be made pursuant to a general power to make regulations or directives in the relevant area, and will be regarded as legitimate if they are integral to that regulatory regime. This principle of Treaty interpretation is sensible and legitimate. It should be borne firmly in mind when dealing with other aspects of Treaty interpretation considered below. 2.2

ARTICLE 298 TFEU AND A GENERAL LAW OF ADMINISTRATIVE PROCEDURE 1. In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration. 2. In compliance with the Staff Regulations and the Conditions of Employment adopted on the basis of Article 336, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish provisions to that end.

Article 298 TFEU was a new addition to the Lisbon Treaty. Its origins can be traced to the Convention on the Future of Europe and the final report of Working Group V on complementary competences,32 which recommended inclusion of such a clause.33 These recommendations must be seen in the light of two earlier working documents that shaped the conclusions.34 The idea for what became Article 298 originated in proposals concerning EU administration from Lena Hjelm-Wallén, the Swedish Government Representative on Working Group V. These were considered in tandem with suggestions for what became Article 197 TFEU, which dealt with national administration. Analysis of the final report and 31

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Directive 2002/21, supra n. 6, was based on Art. 95 EC; Directive 2008/1, supra n. 14, and Directive 2003/35 were based on Art. 175(1) EC; Reg. 1/2003, supra n. 22, was based on Art. 83 EC. Final Report of Working Group V on Complementary Competencies, CONV 375/1/02, Brussels 4 November 2002, 17–18. It became Art. III-398 in the Constitutional Treaty. Working Group V, Working Document 13, Brussels 30 July 2002; Working Group V, Working Document 21, Brussels 4 September 2002.

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the working documents reveals that there were two dimensions to Article 298, which was in that sense Janus faced. It was concerned in part with the internal workings of EU administration, the efficiency dimension, and in part with the external impact of EU administration on those affected by it, the procedural rights dimension. The internal dimension was evident in the working document, which emphasized ‘the need for the safeguarding of good administrative culture of the EU institutions in order to increase the efficiency and legitimacy of the decision-making and thereby the citizens’ confidence in the work of the Union’.35 This same idea found expression in the final report of Working Group V, which spoke of the need to safeguard ‘good administrative culture in the EU administration to increase efficiency and legitimacy’.36 The external dimension was however equally prominent in the documentation that led to Article 298. Thus in the working document Lena Hjelm-Wallén argued that any future Treaty provision should also highlight ‘basic principles for good administration of the work of the EU institutions’, which could ‘include inter alia service obligations, means to safeguard objectivity and impartiality, increased openness, procedures for consultation, improved anti-corruption measures, etc.’.37 The external dimension was further emphasized in the suggestions made for future deliberations within Working Group V, which included consideration of the extent to which principles of good administration were manifested in the existing system, and whether there should be a homogenous set of legally binding rules to ensure implementation of these principles by the institutions.38 The wording and sentiments were echoed in the final report of the Working Group, which stated that a Treaty article should highlight ‘basic principles for good administration of the work of the EU institutions, e.g., service obligations, objectivity and impartiality, increased openness, consultations, and improved anticorruption measures’.39 The Working Group noted moreover that detailed analysis of the suggestions for such a Treaty article would involve analysis of the legal situation ‘with respect to general principles of law concerning good administration as interpreted by the Court of Justice’.40 It would also said the Working Group be necessary to consider the relationship between such a Treaty article, the provisions of the Charter of Rights and proposals from the EU Ombudsman that had similar objectives. 35 36 37 38 39 40

Working Group V,Working Document 13, supra n. 34, at 2. Final Report of Working Group V, supra n. 32, at 17. Working Group V, Working Document 13, supra n. 34, at 3. Ibid., 3. Final Report of Working Group V, supra n. 32, at 17. Ibid., 18.

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It is interesting to reflect in the light of this background whether Article 298 TFEU might provide the foundation for general law of administrative procedure. There are three differing interpretations of Article 298, which should be distinguished for the sake of analytic clarity. The first and narrowest interpretation would be that Article 298 only empowers the making of regulations relating to the internal workings of the EU institutions, bodies, offices and agencies. It does not on this view authorize regulations designed to lay down process rights for those affected by decisions made by such institutions and bodies. The principal argument in support of this view is that Article 298(2) is framed in terms the making of regulations to achieve the end specified in Article 298(1), this being an ‘open, efficient and independent administration’. It might therefore be contended that the regulations should: ensure that the methods by which EU civil servants are chosen is open/fair; enhance internal institutional efficiency; and safeguard the institution’s independence from external influence. There are however difficulties with this reading of Article 298. It is predicated on Article 298 having solely an internal dimension, which does not fit with the historical documentation considered above. A further difficulty with this narrow interpretation is that if Article 298 is limited in this manner then it would be redundant. The objectives set out above can be attained through Article 336 TFEU, which is the legal foundation for the Staff Regulations. Article 336 is general in scope and the staff regulations cover in great detail matters such as the methods of appointment, internal workings of the EU bureaucracy and the like.41 An additional argument against the narrow view is that the reforms to improve institutional accountability and efficiency made after the resignation of the Santer Commission were achieved when Article 298 TFEU did not exist. It cannot therefore be argued that Article 298 was necessary for the EU to have competence to introduce such measures.42 The second interpretation of Article 298 TFEU would be that it provides the foundation for a law of administrative procedure should the European Parliament and Council wish to enact one.Thus on this view it would be possible to interpret the phrase an ‘open, efficient and independent European administration’ to cover not only the making of rules that are internal to the workings of such administration, but also rules concerning process rights to govern the relationship between the EU administration and those with whom it deals. Such a law would however only be applicable to ‘the institutions, bodies, offices and agencies of the Union’. It could not therefore cover Member State administration when it acts in

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http://ec.europa.eu/civil_service/docs/toc100_en.pdf; http://europa.eu/epso/discover/careers/staff_ regulations/index_en.htm. http://ec.europa.eu/reform/index_en.htm.

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the context of shared administration.43 It could not specify the procedures that should apply to national administrations within the many areas of shared administration, even though such national agencies have formal rights and obligations under relevant EU regulations and even though they are integral to the administration of EU regulatory schemes in areas as diverse as agriculture, the Structural Funds, utilities regulation, consumer protection, customs and environmental regulation. The second interpretation of Article 298 better reflects the framers’ intent, since it is premised on this Treaty article having an external as well as an internal dimension. It is nonetheless important to consider the third interpretation, which builds on the second, but extends it to cover national administration when it acts within the scope of EU law. Thus on this view it would be possible not only to enact sector-specific rules that stipulate process rights applicable against national administrations in the manner considered above, but also to enact a general law that could cover them when they operate within the scope of EU law.The textual support for this argument would focus on the wording of Article 298(1). It provides that ‘the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration’. This wording can accommodate national administration when it operates within the sphere of EU law, more especially because the latter part of the sentence is couched in terms of European not EU administration. It is not strained therefore to read this to mean that the EU institutions, agencies, etc., must have support from an open, efficient and independent European administration, connoting thereby both EU bureaucrats stricto sensu and also national bureaucrats when they operate in the sphere of EU law.44 This textual reading coheres with the reality of EU policy delivery. The reality is that in very many areas of shared administration the national administrations have formal legal duties pursuant to EU policy, which cannot successfully be delivered unless the national administration is open, efficient and independent. This reading of Article 298 does not render Article 197 TFEU otiose.The latter is primarily concerned with the internal dimension, the emphasis being on improving the capacity of national administration to implement EU law through exchange of information, training schemes and the like, which is in accord with the views of Working Group V.45 Article 197(3) moreover provides that Article 197 is without prejudice to the obligations of the Member States to 43 44

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This appears to be the view of the Committee on Legal affairs of the European Parliament, supra n. 3. This interpretation is not precluded by Art. 298(2) TFEU. The fact that any regulations must comply with the Staff Regulations does not entail the conclusion that the regulations can only apply to EU staff. It merely means that insofar as the regulations made to achieve the ends in Art. 298(1) do apply to EU staff they must also comply with the Staff Regulations. Final Report of Working Group V, supra n. 32, at 18.

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implement Union law, or to the Commission’s prerogatives, or to other Treaty provisions providing for administrative cooperation among the Member States and between them and the Union. 2.3

ARTICLE 352 TFEU AND A GENERAL LAW OF ADMINISTRATIVE PROCEDURE

Article 352 TFEU provides that if action by the EU should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, then the Council acting unanimously on a Commission proposal can take the appropriate measures, after obtaining the consent of the European Parliament. Article 352 therefore constitutes a potential foundation for legislative competence, if it is felt that Article 298 cannot be used to this end. The conditions in Article 352(1) could without difficulty be met in this context.The Treaty values, which include the rule of law, are specified in Article 2 TEU and the Treaty objectives are delineated in Article 3 TEU. The two Treaty provisions are intimately connected, as is evident by explicit reference to Treaty values in Articles 3(1) and (5). Thus Article 3(1) specifies as the initial objective of the EU that its aim is to promote peace, its values, and the well-being of its peoples. It is clear more generally that the values in Article 2 are intended to inform attainment of the objectives in Article 3. Principles of administrative procedure or good administration are central to the rule of law, and therefore satisfy this condition within Article 352. The articulation of such principles through a general law can be regarded as necessary within the framework of EU policies viewed in general, not just in a specific substantive area. It can be argued with justification that none of the objectives in Article 3 TEU could be adequately achieved without the existence of such principles, the content, clarity and transparency of which would be enhanced through promulgation of a general law. The principles of administrative procedure or good administration should also be capable of being applied to national administrations when they act within the sphere of EU law. The prominent model of EU administration remains one of shared administration.This is so in terms of both political and legal reality. It is for this very reason that the European Court of Justice (ECJ) made clear that general principles are applicable against the Member States as well as EU institutions. Numerous EU regulations impose formal rights and duties on national administrations, which are integral to the successful discharge of the relevant areas of EU policy. In many instances the national administrations are truly agents or partners with the Commission in delivering these policies. The objectives of

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applying such precepts of good governance to EU bodies stricto sensu would be undermined if they were not also applicable to national agencies formally integrated into the delivery of EU policy. It would moreover be difficult if not impossible to determine, for example, the extent to which hearing rights should be applicable in the context of shared administration without taking account of the respective roles of the national administration and the Commission in the decision-making process.46 3

JUDICIAL COMPETENCE AND LEGISLATIVE COMPETENCE:THE BASIC ISSUE

The preceding section provided examples of Treaty articles used for sector-specific regulation dealing with administrative procedure and considered the possible use of Articles 298 and 352 TFEU as the foundation for a more general law that could apply to the Member States as well as the EU.The proper interpretation of Articles 298 and 352 in this context also raises intriguing questions about the relationship between legislative competence and judicial competence under the constituent Treaties. The ECJ has over the years fashioned general principles of law, many of which would find their place within any general law of administrative procedure. It is accepted that the general principles bind Member States when they act within the ambit of EU law, even if there are question marks over the extent to which such principles bind individuals.47 Thus in classic cases of shared administration the national administrative bodies will have to comply with the precepts of general principles of EU law. They will have to ensure that hearings comply with the requirements of EU case law, and that principles such as proportionality are applied in cases decided at national level that have an EU dimension. This EU case law is necessarily premised on the assumption that the EU courts are acting intra vires when developing such norms. The ECJ and GC are bodies subject to the overarching principle of attributed competence, just as any other EU institution. This is so notwithstanding the fact that the judicial competence is broadly framed, this being most evident in Article 19 TEU, which provides that the ECJ and GC ‘shall ensure that in the interpretation and application of the Treaties the law is observed’. It was Article 19, combined with Article 263 TFEU, which provided the foundation for judicial creativity in relation 46

47

Case T-260/94 Air Inter SA v. Commission [1997] ECR II-997; Case T-450/93 Lisrestal v. Commission [1994] ECR II-1177; Case C-32/95 P, Commission v. Lisrestal [1996] ECR I-5373; Case T-50/96 Primex Produkte Import-Export GmbH & Co KG v. Commission [1998] ECR II-3773; Case T-290/97 Mehibas Dordtselaan BV v. Commission [2000] ECR II-15. Takis Tridimas, The General Principles of EU Law 36–50 (2d ed., Oxford U. Press 2006).

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to general principles. The grounds of review in Article 263 included ‘any rule of law relating to application’ of the Treaties, which proved fertile ground for the seeds that rapidly became general principles of law. The broad framing of Article 19 TEU does not however alter the point being made here, nor does the ambiguity in the phraseology of Article 263, nor indeed does the style of teleological interpretation that characterizes the courts’ jurisprudence. It remains the case that the general principles developed by the ECJ and GC must fall within the overall competence of the EU, since they would otherwise be ultra vires. The very ambiguity as to the meaning of the word ‘law’ within Article 19 assisted the ECJ in this respect, as did the similar ambiguity that pervaded the meaning of the ‘rule of law’ within Article 263 TFEU. We shall return to this in due course. Let us imagine that the EU legislature wishes to enact a law that simply declares the existing legal status quo as developed through the ECJ’s case law. The law is not intended to be constitutive, it is not designed to add anything to what is contained in the EU courts’ case law. The objective is to draw together and make more transparent the norms of administrative procedure currently found in the case law. It might be argued that this would not have been possible pre-Lisbon because there was no Treaty article that provided a foundation for such a law. It might be contended that it would not be possible post-Lisbon, because a particular commentator takes the narrowest reading of Article 298 TFEU set out above, and does not believe that the conditions for Article 352 would be met.The difficulties of reading Articles 298 and 352 in this negative manner were considered above. There is however a broader issue of principle at stake with such a negative view. It would mean accepting that general principles of law could be developed within the competence accorded to the EU and that this could be done by the judiciary. It would also mean that the very same general principles of law could not be recognized in a binding regulation declaratory of existing case law. This impediment could not be because general principles are, in terms of their very subject matter, outside the competence of the EU, since if this were so their recognition by the ECJ would have been ultra vires. Logic therefore compels the conclusion that while the subject matter of general principles of law is within the bounds of competence that can be regarded as being attributed to the EU, the EU legislature lacks competence to replicate precisely what has been developed judicially. Weiler and Fries48 pointed to the self-same tension in the academic debates that followed Opinion 2/94,49 as to whether the EC could accede to the 48

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Weiler & Fries, A Human Rights Policy for the European Community and Union: The Question of Competences, in The EU and Human Rights ch. 5 (Philip Alston, Mara Bustelo & James Heenan eds., Oxford University Press 1999). Opinion 2/94, On Accession by the Community to the ECHR [1996] ECR I–1759.

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ECHR.50 This debate has now been rendered moot by Article 6(2) TEU, which embodies a duty on the EU to accede to the ECHR.The point of principle from this earlier debate nonetheless remains salient today. It will be remembered that part of the ECJ’s reasoning in denying that the EC could join the ECHR was because it held that the EC had no internal competence concerning human rights, in the sense that it was not possible to point to a Chapter or Title of the EC Treaty dealing with human rights, nor was there any express power to make international conventions in that area.51 This framed the subsequent part of the ECJ’s reasoning. It considered whether, in the absence of any express or implied power over human rights, Article 235 EC could be used.The ECJ held that Article 235 could not serve as a basis for widening the scope of Community powers beyond the general framework created by the Treaty provisions and, in particular, by those that define the tasks and the activities of the Community. Article 235 could not therefore be used as a ‘basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose’.52 This wording was not fortuitous, and was designed to show that the ECJ had heard the cautionary words of the Bundesverfassungericht in the Maastricht case.53 It was, said the ECJ, in the light of those considerations that the possible use of Article 235 as the basis for accession to the ECHR was to be judged. The ECJ acknowledged that certain Treaty articles made reference to human rights, and more generally that fundamental rights were part of general principles of law, and therefore that they conditioned the lawfulness of Community action.54 The ECJ nonetheless concluded that accession to the ECHR required Treaty amendment because it would have institutional implications for the Community and Member States, and these were of constitutional significance. The cogency of this latter reasoning has been questioned and commentators55 pointed out that the ECJ may well have been concerned for the institutional implications to its own power, given that membership of the ECHR would bring the Strasbourg court more formally into the legal picture for adjudication on human rights in the EC. It is, however, the more general issue concerning judicial and legislative competence that is relevant here. Weiler and Fries argued that the EC must have some competence in the human rights’ area, since otherwise judicial recognition 50

51 52 53 54 55

The Human Rights Opinion of the ECJ and its Constitutional Implications (Cambridge University CELS, Occasional Paper No. 1, CUP 1996). Opinion 2/94, supra n. 49, at para. 27. Ibid., para. 30. Brunner v. European Union Treaty [1994] 1 CMLR 57. Opinion 2/94, supra n. 49, at paras. 33–34. Weiler & Fries, supra n. 48.

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of the fundamental rights doctrine, and its application to Member States when acting within the sphere of EC law, would have been unlawful. Given that this was so, it was they said, unclear why the EC legislature should be regarded as lacking competence to enact a binding law declaratory of the existing case law in order to render it clearer and more transparent to the ordinary citizen.56 [S]hould Commission, Council and Parliament decide to discharge their inherent duty to ensure the observance of fundamental rights in the field of Community law by legislating to do just that, and provided such legislation did not stray from the field of Community law, it is hard to see on what ground their overall competences could be challenged.Would the Commission and Council not, for example, have the competences simply to codify what the Court has done in its jurisprudence so that its jurisprudence can have greater impact on all public authorities?

4

JUDICIAL COMPETENCE AND LEGISLATIVE COMPETENCE: THREE PRELIMINARY CLARIFICATIONS

The remainder of the article takes this inquiry further and considers the analytical and normative arguments that are entailed in the relationship between judicial and legislative competence.We can begin with three preliminary clarifications. 4.1

LEGISLATIVE COMPETENCE AND CONSTITUTIONAL CONSTRAINT

If the constituent Treaties are interpreted such that the EU courts have judicial competence over a certain kind of subject matter, such as general principles of law, then prima facie this subject matter should be regarded as coming within the sphere of legislative competence, so that the EU legislature should be able express a view about such issues, provided that the conditions in Article 352 or some other Treaty article are met. This is not an absolute proposition, nor does it mean that legislatures exercise powers of a judicial nature. It may well be that the constituent document in a particular polity limits legislative competence. There may be good normative reasons for this. It is manifest most notably in constitutional provisions that remove certain issues from the ordinary legislative agenda. The result is that there is no ordinary legislative competence over them, and special forms of procedure are required for constitutional amendment. It is manifest also in constitutional eternity clauses that prevent change to certain constitutional fundamentals. There is nothing in the preceding argument that challenges this kind of limitation on the legislature,

56

Ibid., 157.

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although there may of course be room for disagreement as to what issues should be constitutionalized and hence taken off the normal legislative agenda. It would however be very difficult to argue that the EU legislature should be precluded from enacting a general law of administrative procedure for reasons of this kind. There is no provision removing such issues from the ordinary legislative agenda, such issues are dealt with by the EU legislature in sector-specific legislation, and national legislatures are commonly regarded as having power to enact general laws for their respective countries 4.2

LEGISLATIVE COMPETENCE AND HIERARCHY OF NORMS

The second preliminary clarification is equally important. The existence of a legislative competence to enact a general law of administrative procedure is clearly distinct from the status of such a law if and when enacted. To put the same point in a different way, competence and the hierarchy of norms are conceptually different issues, and nothing said here challenges that distinction. The status of a general administrative law relative to other EU norms would therefore be dependent on precepts concerning the hierarchy of norms. General principles of law stand above EU legislation in the sense that they can be used both as interpretive guides for legislative norms, and can also provide the foundation for invalidating them if they do not comply with precepts such as proportionality, fair procedure and legitimate expectations.57 This would not be altered by enactment of a general law of administrative procedure. It would still be open to a claimant to contend that provisions of such a law provided insufficient protection in certain respects when judged by general principles of law as developed by the EU courts. It would then be for the EU courts to determine such a case in the light of the contending arguments.The ECJ might interpret the provisions of the law in order to meet the argument advanced by the claimant. If this was not possible it might rule that the relevant legislative provisions should be supplemented by further protection derived from the general principles of law. Having said this, it is likely that before reaching the conclusion that the law was deficient the ECJ would take cognizance of the fact that it had been duly considered in the legislative process. The fact that a law if enacted would in principle be challengeable for compliance with general principles of law in the same manner as other legislation

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The nature of this hierarchy might be challenged, but it is accepted for the purpose of the present article.The important point for current purposes is that there is nothing in the enactment of a general code of administrative procedure that alters the existing hierarchy of norms.

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does not however provide any argument against the existence or exercise of such a legislative competence. 4.3

LEGISLATIVE COMPETENCE AND THE PRINCIPLE OF ATTRIBUTION

It might be felt that that the prima facie link between judicial and legislative competence forged in 4.1 infringes the idea that the EU only has competence when this has been attributed to it in the constituent Treaties. This concern is unfounded. If a general law of administrative procedure is to be made then it must be grounded in a particular provision of the constituent Treaties, the two candidates being Article 298 TFEU or Article 352 TFEU. Any such law would therefore have to satisfy the conditions for invocation of these Treaty provisions. The textual arguments for concluding that these Treaty Articles could be interpreted to provide the requisite foundation for such a law were considered above. It should moreover be emphasized that insofar as such a law was also concerned with national administration, this would only be insofar as the subject matter fell within the scope of EU law. The process of Treaty interpretation however often requires consideration of broader issues of value or principle, which informs the way in which the particular Treaty provision is construed. Such values or principles should not be allowed to distort the wording of the text. They can nonetheless legitimately be used to reinforce an interpretation that is possible on the basis of the textual wording, and/or influence the interpretation and sphere of application of a Treaty provision that is textually ambiguous. The arguments presented in the second half of this paper comprising sections 3, 4 and 5 fulfil this role, providing strong principled support for construction of Articles 298 or 352 so as to allow for enactment of a general law of administrative procedure. 5 5.1

JUDICIAL COMPETENCE AND LEGISLATIVE COMPETENCE: THREE SUBSTANTIVE ARGUMENTS DUTY AND POWER

The most direct normative justification for the prima facie link between judicial and legislative competence is captured by the relationship between duty and power. The ECJ’s jurisprudence on general principles is couched in terms of a duty.The EU institutions have a duty to comply with general principles of EU law as developed by the ECJ and GC. There are a number of ways in which the EU institutions can seek to fulfil this duty, including mainstreaming compliance with it

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in institutional practice and providing benchmarks for the optimal way to secure fulfilment of the precepts developed by the EU courts. Compliance does not therefore have to be thought of in zero sum terms.The duty can be met in various ways. There would have to be some compelling normative argument as to why the duty to comply with general principles of law could not also be met by a general law.The duty would in that sense generate a power that could be fulfilled through Article 298 or 352, given that the text can bear such a construction. To deny this would mean disabling the EU legislature from fulfilling its duty in what might well be the most efficacious manner. It would mean preventing the EU legislature from using its best efforts to comply with the duty in the manner that is central to its very existence, viz through the enactment of legislation. It is no answer in this respect to say that the legislature should be content with enactment of sector-specific provisions, thereby covering the terrain through multiple regulations devised for different subject matter areas covered by chapters of the Treaty. Such sectoral regulations may well be one way of ensuring compliance with general principles of law.The legislature may nonetheless believe that a more general law would be beneficial for the very reasons set out in the introduction to this article: it can enhance the clarity of, and facilitate access, to the law; increase the coherence of principles and procedures; set up default procedures to fill gaps in existing law; and establish the functions of administrative procedure. 5.2

DEMOCRATIC CHOICE AND LEGITIMATION

A further argument is based on democratic input, choice and legitimation.The EU legislature can, as we have seen above, already contribute to norms of administrative procedure in specific subject matter areas. This does not however render otiose or unnecessary a more general law of administrative procedure. The interplay between specific and general laws is common in national systems, and there is no reason why this should not also be so in the EU. The enactment of legislation entails democratic input. The constituent elements of the EU legislature should be able to express a choice concerning the relevant topic and to express this in the quintessential legislative manner, through the enactment of legislation. It was accepted in the preceding discussion that there could be limits placed on ordinary legislative competence. We should nonetheless think long and hard before concluding that such limits exist, where there is nothing in the constituent Treaties that provides for such limitations expressly. There is no such express limit with regard to general principles of law, and it is difficult to think of any good normative reason why they should be regarded as off-limits insofar as a general law of administrative procedure is concerned. This

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argument would be especially difficult to sustain, given that legislative intervention is accepted in relation to specific subject matter areas. Thus the legislature while mindful of the judicial contribution to the development of general principles of law might believe that there are virtues in the greater clarity and transparency of a general law, which could then serve as the boiler plate for more specific subject matter legislation.The very fact that there is a rich corpus of material developed by the courts could be grounds for thinking that the time is ripe for such a declaratory law. There are clear analogies here with the rationale for transforming the fundamental rights’ jurisprudence into the Charter of Rights.The message from the key European Council meetings in 1999 was that drawing together the ECJ’s jurisprudence into a Charter would enhance clarity and transparency, and also further the legitimation of the EU within this sphere.58 The legislative competence in relation to a general law of administrative procedure may be most apparent when we think in terms of a law that is declaratory of existing law. It should not however be limited in this respect. It should be open to the EU legislature to adopt a law that is constitutive, in the sense that it goes beyond the precepts found in the current case law.The legislature may well have views on whether, for example, rule-making should be subject to greater procedural protection than at present. It may believe that the rules concerning hearing rights in complex cases of shared administration should be specified in ways that do not follow in all respects the case law of the ECJ and GC, and that more protection should be afforded. The EU legislature should therefore be capable of enacting a general law of administrative procedure that is constitutive, not merely declaratory. This would then be subject to judicial oversight in the manner adumbrated above, in accord with the standard rules on the hierarchy of norms. The law enacted as EU legislation would be subject to judicial review in the normal way, including for compliance with general principles of law. Thus if the ECJ or GC felt that the law was insufficiently protective it could supplement it by recourse to general principles of law, as it has done when considering the sufficiency of legislative procedural rules relating to specific subject matter areas.59 The EU courts should not however intervene if the EU legislature has chosen to be more protective or inclusive than the judicially developed general principles of law, or if it has decided to configure the protection in a somewhat different way to that

58

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Cologne European Council, 3–4 June 1999; Grainne de Búrca, The Drafting of the European Charter of Fundamental Rights, European L. Rev. 26 (2001): 126; Justus Schonlau, Drafting the EU Charter: Rights, Legitimacy and Process (Palgrave 2005). Case C-49/88, Al-Jubail Fertilizer v. Council [1991] ECR I-3187, para. 16; Case T-260/94 Air Inter SA v. Commission [1997] ECR II-997, para. 60.

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adopted by the courts, provided that the resultant legislative choice does not thereby infringe any other limit on EU competence. 5.3

LEGALITY REVIEW AND ENACTMENT OF LEGISLATION

It might be argued that there is a difference between judicial competence that takes effect through review of legality, and legislative competence that takes effect through enactment of regulations, directives, etc. It is of course true that judicial review of legality and the enactment of legislation are distinct.The former is concerned with striking down administrative or legislative action for non-compliance with judicially created general principles of law that form the core of the regime of judicial review.The latter is concerned with the enactment of legislative norms that take the form of regulations or directives, which specify the chosen rules to govern the particular area. This does not however provide the requisite justification for the argument in the preceding paragraph. If the criterion is ‘output’, then legality review framed in terms of general principles of law is more potent than EU legislation, insofar as the former is superior to the latter judged in terms of the hierarchy of norms. If we are willing to regard judicial development of general principles as within EU competence it is then all the more difficult to treat legislative competence so differently in this respect. If the criterion is ‘input’, connoting techniques of Treaty interpretation that legitimate the existence of the relevant competence, then the argument is equally difficult to sustain. We have already seen that judicial competence to develop general principles of law must be located somewhere, and that it must be capable of being rationalized in accord with Treaty provisions that speak to the powers of the ECJ. We have also seen that the two most prominent ‘candidates’ on which to ground articulation of general principles of law are Article 19 TEU, and Article 263 TFEU. Article 19 TEU is framed in terms of the ECJ ensuring that in the application of the Treaties ‘the law’ is observed. Article 263 TFEU includes in the list of grounds of review ‘infringement of the Treaties or of any rule of law relating to their application’. There are good arguments for concluding that development of general principles is intra vires. This conclusion is nonetheless predicated on an expansive reading of the term ‘law’ in Article 19 TEU, and a similarly expansive reading of the phrase ‘rule of law’ in Article 263 TFEU.The absence of the travaux préparatoires means that we do not know what these phrases were intended to connote. Thus Article 19 TEU might have been interpreted in a limited manner to connote the

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idea that, for example, Commission decisions should be made within the limits laid down by the primary Treaty articles and secondary legislation. The word ‘law’ within this Article was however open to a broader interpretation that legitimated the ECJ fashioning a system of legal principles to test the legality of EU and Member State action. A similar uncertainty pervades Article 263 TFEU.The intent might have been to do nothing more than ensure that Commission decision-making should have to comply not only with the primary Treaty articles, but also regulations, directives, etc., passed pursuant thereto. If this had been the intent it could however have been expressed more simply and clearly. The intent might alternatively have been to capture not only compliance with secondary legislation, but also with other ‘rules of law relating to the application’ of the Treaty that might be developed by the courts. The very ambiguity in the Treaty wording provided the ECJ with a window through which to justify the imposition of administrative law principles as grounds of review.The conclusion that development of general principles of law is intra vires is therefore predicated on an expansive reading of the salient Treaty provisions, and it logically follows that this subject matter falls within EU competence. This then leads us back to our central inquiry, as to why the legislature should not be able to contribute in this area by formulation of a general law of administrative procedure applicable to EU institutions and Member States. If the subject matter of general principles is within the scope of EU judicial competence through expansive interpretation of the relevant Treaty provisions, then it remains unclear why Article 298 TFEU or Article 352 TFEU should not be interpreted as a legitimate foundation for legislative competence.We should be mindful to ensure that there is parity in our modes of Treaty interpretation. Expansive interpretation of Treaty provisions so as to generate judicial competence, sits ill at ease with narrow interpretation of Treaty provisions in the context of legislative competence over the self-same subject matter. In the words of Weiler and Fries ‘what is sauce for the judicial goose is also sauce for the legislative gander’.60 6

CONCLUSION

The possible enactment of a general law of administrative procedure depends necessarily on the existence of legislative will. The constituent parts of the EU legislature will have to think that the exercise is worth undertaking and that agreement can be reached on its content. That is obvious. The very existence of such legislative will is however also dependent on assumptions as to whether such 60

Weiler & Fries, supra n. 48, at 151.

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a law is an objective that should be pursued and this will be influenced, explicitly or implicitly, by issues of legislative competence. It has been argued in this article that textual arguments support such competence, and that this is reinforced by broader normative arguments concerning the relationship between judicial and legislative competence.