Information Exchange in European Administrative Law
| Date | 01 June 2016 |
| DOI | 10.1177/1023263X1602300309 |
| Published date | 01 June 2016 |
| Subject Matter | Article |
23 MJ 3 (2016) 531
INFORMATION EXCHANGE
IN EUROPEAN ADMINISTRATIVE LAW
A reat to E ective Judicial Protection?
M E*
‘European administration can (…) be seen as, rst and foremost ,
the administration of information.’1
ABSTRACT
European policies are increasingly implemented through the joint production, gathering,
management and exchange of information. ese infor mation exchange mechanisms may
pose problems in the context of judicia l protection because it may be di cult to ide ntify the
actor responsible for a piece of information which was the basis for a nal measure, and
the act of information sharing may not be challe ngeable before a court. e purpose of this
article is to examine the gaps in judic ial protection – if any – arising from the widespread
use of information sharing activ ities in European administrative law. A er an overview of
the information exchange and management ac tivities in Euro pean admini strative law, th e
gaps in judicial protection are identi ed and discussed in the context of two case studies.
e central argument is that although the system of administrative decision-making is
becoming increasingly integrated, the disintegrated system of judicial protection poses a
serious threat to the principl e of e ective judicial protec tion in information sharing activities
that are aimed at implementing EU policies. e article ends with recommendations on
how these judicial protection gaps could be lled.
Keywords: e ective judicial protection; European administrative law; information
exchange; shared admini stration
* Associate Profes sor in European Administ rative Law, Maast richt University, Maastricht, the
Netherlands.
1 H.C.H. Hofmann, G.C. Rowe and A.H. Tü rk, Admini strative Law and Policy of the European Union
(Oxford University Pres s, 2011), p.411.
Mariolina Eliantonio
532 23 MJ 3 (2016)
§1. IN TRODUCT ION
In European admi nistrative law, that is, the set of rules governing t he administration of
the European Union and national ad ministrations when they a re acting within the s cope
of application of EU law, there are manifold examples of policy a reas in which decisions
are taken on the basis of a ‘composite’ procedure. ese are procedures entailing the
input of administrative actors from di erent jurisdictions, a nd in which the nal decision
issued by a Member State or an EU authority is based on the more or less formalized
input of several part icipating authorities.2
Sometimes the input of a nationa l or European authority may consist in the provi sion
of advice or the enactment of a binding measure, but much more o en the underlying
procedure provides for cooperation mechanism s based on the sharing of information as
the basis for the nal decision. In fact, it ha s been argued that ‘most forms of procedural
cooperation in implementing EU policies are based on the joint production, gathering
and management of information, and/or exchange of information’.3 e forms of
administrative cooperation in information exchange may vary from an ad hoc case
to a constant and structured ow of information between one or more administrative
authorities . e most advanced form of information management can b e found in shared
databases where the information is stored and is accessible to all relevant national and
European authorities w ithout the need to make a prior request for it.4
e purp ose of this artic le is to examine the gaps in jud icial protection – if any – ar ising
from the widespread use of information sharing activities in European administrative
law. e central argument is that a lthough the system of admin istrative decision-making
is becoming increasi ngly integrated, the disinteg rated system of judicial protection poses
a serious threat to the principle of e ective judicial protection in information sharing
activities t hat are aimed at implementing EU policies.
Information sharing networks exist in several elds of EU law, ranging from
competition5 to immigration,6 customs7 and product safety.8 ey are part of what
2 Ibid., p.406.
3 Ibid., p.16.
4 J.-P. Schneider, ‘Basic Structure s of Information Management i n the European Admin istrative Union’,
20European Public Law (2014), p.89.
5 Council Reg ulation 1/2003/EC of 16December 2 002 on the implementat ion of the rules on compet ition
laid down in Ar ticles81 and 82 of the Treaty, [2003] OJ L 1/1.
6 Regulation 1987/2006/EC of the Europea n Parliament and of t he Council of 20 December 2006 on
the establis hment, operation and use of the sec ond generation Schengen Information Syst em (SIS II),
[2006] OJ L 381/4.
7 Council Regulation 515/97/EC of 13March 1997 on mutual assistance between the administrative
authorities of the Me mber States and cooperat ion between the latt er and the Commission t o ensure the
correct applicat ion of the law on customs and ag ricultural mat ters, [1997] OJ L 82/1.
8 Directive 20 01/95/EC of the European Parliament and the C ouncil of 3 December 2001 on general
product safet y, [2002] OJ L 11/4.
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