2. Mind the accountability gap – administrative law and legitimate governance
| Pages | 43-79 |
| Author | Melanie Smith |
2 Mind the accountability gap –
administrative law and
legitimate governance
The role of administrative law is central to the legitimacy of any system
of governance. In a system of governance based on the rule of law,1 those
who wield public power must respect the law and where that power is
discretionary, there must be clear limits upon it to prevent arbitrary, corrupt
or unfair behaviour. Administrative law may be broadly defined as ‘a
branch of public law concerned with the composition, procedures, powers,
duties, rights and liabilities of various organs of government that are
engaged in administering public policies’.2 It can be viewed as a system for
controlling public power, or as a system to facilitate the defence of an
individual’s rights or as a conflation of both of these propositions.3 The
development of administrative law and the role it plays in a system of
governance is dependent upon the context in which it develops. Thus, there
is a different role and definition applied to administrative law across the
Member States of the European Union (EU).4 A typical view of
administrative law might be that it provides a conduit for making public
actors accountable to the public through a variety of mechanisms;
accountability is a key organising concept in providing a useful definition
of the nature of administrative law.5 It may provide certain procedural
safeguards for individuals when dealing with public authorities, or provide
a mechanism for challenging the decisions taken by public authorities that
adversely affect an individual’s interests. Regardless of which normative
approach is taken to the characterisation of administrative law, even in the
most developed democratic systems of governance, administrative law is an
essential factor in the delivery of a legitimate system of rule.
The wide variety of administrative law traditions within the Member
States6 has not been transplanted uniformly into the EU system of
governance.7 Unlike the rich administrative traditions of individual Member
States, there has been little activity in the EU on a horizontal and/or
legislative basis to systematise the application of administrative law.
Although Member States may have legislation to govern the behaviour of
discretionary administrative decision-making, or a long-standing common
law tradition of judicial review based on principles of natural justice, no
such tradition has been inculcated into the European level administration. It
is more common to see a non-linear approach to administrative law in the
EU, where administrative principles and procedural guarantees are sourced
from the individual Treaty provisions or are granted in sector-specific
secondary legislation. Such administrative principles vary a great deal as to
their nature and extent.8 The administrative element of Article 226 is the
most dominant part of the enforcement action in terms of institutional
decision-making. For instance, in 2007, 92 per cent of cases were closed in
the administrative phase of the process.9 It is therefore of crucial
importance to understand how the administrative part of Article 226 is
regulated by the Treaty and how the legal principles are developed through
judicial interpretation. To what extent has administrative law, through the
interpretation of the courts, contributed to filling in the gaps left by the
widely drafted Treaty language in order to deliver procedural safeguards on
the exercise of public power?10 It is appropriate to examine the contribution
made by the European Court of Justice (ECJ) and the Court of First
Instance (CFI) to the development of administrative rights across the EU
legal system in general (to identify the context) and specifically in relation
to Article 226 (to assess its impact). Judicial enforcement and development
of administrative rights is of special significance, particularly in the absence
of any secondary legislation granting administrative rights, or extensive
recognition of procedural guarantees in the Treaty provision. Before
assessing the impact of administrative law principles in delivering greater
legitimacy to the operation of Article 226, it is necessary to narrow down
the focus from ‘administrative law’ generally to key principles or rights to
be found in the EU legal system.
The chapter will be structured as follows. The first section will outline
the main sources of administrative law in the EU legal system, in order to
provide an overview of the legal context in which the enforcement
mechanism is operated. The second section then focuses upon two key
horizontal administrative principles (transparency and the obligation to
provide reasons for decisions) as principles that could contribute to the
legitimisation of the use of public power under the enforcement action. The
third section considers the drive to develop further administrative rights in
the EU, as the EU advances towards greater constitutionalisation, based on
the provisions of the Charter of Fundamental Rights.11 Finally, some
concluding remarks are made on the success of the courts in developing and
applying administrative law principles in order to provide control and
accountability relative to the operation of the enforcement mechanism.
AN INTRO DUCT ION TO
ADM INIST RATIVE LAW IN TH E EU
It is the role of the two European courts in the development of
administrative law as it applies to the European institutions that is most
relevant when considering the impact of administrative law on the
enforcement mechanism.12 The ECJ stands at the apex of the European
judicial architecture that comprises the ECJ, the CFI and the courts and
tribunals of the Member States.13 The role of the ECJ in the development of
the European legal order is a familiar topic of discourse in European
literature, generating both supporters and critics of its self-imposed role of
judicial integration.14 The ECJ’s inability to cope with its ever-increasing
case load led to the creation of the CFI, initially to deal with fact-intensive
cases brought by private applicants in areas such as competition law, state
aid and staff cases. Gradually, the jurisdiction of the CFI has been widened,
culminating in a much-needed overhaul of the Treaty of Nice.15 Broadly
speaking, the ECJ retains the sole jurisdiction to hear cases that concern an
‘essential Community issue’ and cases brought by privileged applicants.16
If the ECJ remains the ‘constitutional court’ of the EU, the CFI is better
characterised as an administrative court, because of to the original
jurisdiction of hearing fact-intensive cases from individual applicants, and
challenges to individual decisions of an administrative nature.
Consequently, the different courts do not always approach the issue of
administrative rights in exactly the same way. The ECJ retains sole
jurisdiction over enforcement actions brought by the Commission against
the Member States under Article 226. Nonetheless, it is the CFI that has
been most active in developing administrative rights where instances of
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