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This chapter offers a view of the current place, function, and nature of Union administrative law, and how this body of law can and should develop in order to serve the tasks with which it has been charged within the overall political and legal order of the European Union. A review of European public law has shown that the most substantial and encompassing challenge is that in regard to establishing, enhancing, and extending the accountability of networks. The specific nature of the EU inheres to a large degree in the exercise of shared sovereignty by integrated executives through such networks. Thus, the most profound challenges facing public law in the European Union emerge in relation to the conceptual and practical features of its administrative law, especially in relation to networks.

This chapter is concerned with internal administrative supervision, that is, supervision and control of public administrative action within the European Union public administration itself. The idea of internal supervision in the EU administration considered holistically needs, however, some explication. It includes narrowly internal supervision in the sense of supervision within the main Union administrative organ, the Commission. It also includes administrative supervision of European agencies and even networks, and is thus somewhat less obviously internal. In addition, it encompasses administrative supervision of Member State administrations. The latter are, without doubt, a part of the integrated European administration but, there too, their supervision may, at first, appear not to be really internal although it should, in this chapter's view, be understood as such.

Judicial supervision, generally occurring subsequently both to administrative action and to measures of administrative supervision, is designed to correct errors which have already occurred and to provide compensation for losses resulting from them. It is in this sense quite different from both administrative and political supervision of the administration which can occur both ex ante and ex post. This chapter discusses the various avenues for judicial review of EU administrative action in detail, assessing first direct legal actions for annulment and failure to act, before turning to incidental forms of review. The focus then shifts to the remedy of damages and concludes with an overview of interim relief proceedings.

This chapter discusses administrative rule-making. Administrative rule-making is one of the central tools for an administration to guide its own administrative procedures and the exercise of discretions. Internal administrative rule-making in turn may also have the indirect external effect of increasing predictability in policy implementation. Administrative rule-making can be established in various forms, often referred to as guidelines, notices, frameworks, communications, declarations, and many others. Administrative rule-making by EU authorities will generally be undertaken unilaterally by the institution. Exceptionally, in some areas, the authorities' exercise of discretion will be subject to and restricted by administrative rules which result from a negotiated rule-making process involving the Commission and one or more Member States.

This chapter covers ‘unilateral’ determinations, not only those of European Union institutions and bodies, but also decisions by Member States when implementing European law through their administrative apparatuses. Such determinations comprise the full range of regulatory, distributive, supervisory, and enforcing decisions by administrative officials addressed both to individuals and to other public authorities on European or national level. Questions of their validity, revocation, and reversal, and the relationship between unilateral determinations and negotiated outcomes, in the form of agreements, are central to the legal understanding of the operation of the legal-administrative system of the Union. A particular matter of keen interest here is that of the transterritorial effect of Member State decisions within the framework of EU administrative law.

This chapter deals with administrative procedures. Centralized administrative procedures for the application of Union law have been established only in limited areas, such as competition, state aid, and anti-dumping. In such procedures, the need for sufficient powers in the Commission to investigate, decide upon, and sanction the infringement of Union law effectively, may collide with the privileges of national authorities, and with the fundamental rights of those subject to investigation or allegation. Also, in the procedures which the Commission has to conduct for the adoption of implementing rules (when these are necessary for the uniform application of Union law), the Member States have retained considerable powers of involvement and supervision. This contrasts, at least until recently, with the more limited role of the European Parliament, and the rare possibilities for the structured participation of civil society. The integrated nature of European administration raises most serious issues in the case of composite procedures, where supranational and national authorities contribute in various formations to the application of Union law. Procedures in that context are often characterized by a lack of accountability and clear allocation for responsibility of their political and judicial supervision.

Within European administrative law, single-case implementation of European Union legal policy can occur not just through unilateral measures, but also by means of agreements or contracts concluded by EU or Member State authorities. In the EU, administrative law agreements have always featured as a commonly used form of act. Europe's developing integrated administration has increased the need for, and the sophistication of, the use of such measures. Despite their substantial relevance in practice for the implementation of EU policy and law, however, agreements as form of action in EU administrative law have so far remained largely unexplored. This chapter focuses on their use in the context of the regulation of single-case situations.

This chapter details the legal framework for measures and methodologies of enforcement. Enforcement is considered essentially as an activity undertaken by the administration. It implies that legal precepts or administrative decisions are carried through to their conclusion, and that behavioural demands imposed on individuals or organizations typically external to the public administration are in fact met. The need for enforcement, seen this way, logically implies that the mere existence of rights and obligations, without measures capable of ensuring that they are realized, would call into question the very purpose of a system under the rule of law. This view reflects, indeed, the often asserted proposition that without sanctions there is, strictly speaking, no system of law. Without needing to subscribe unqualifiedly to that proposition, it is clear that the functionality of a complex and pluralistic system of government based on law, as the EU, would be severely restricted without the capacity for and means of enforcement of rules and decisions.

The discussion thus far has considered the different ways in which the EU delivers policy. The focus has been on administration and law. The second part of the book shifts the focus to law and administration, and an evaluation of the judicial doctrine that is of principal significance for EU administration and for the Member States where the latter act within the scope of EU law. It is important to pause and reflect on themes that cut across and are equally pertinent to the analysis of particular aspects of review. This chapter seeks to lay the groundwork for the ensuing discussion. It begins with the justification for judicial review. This is followed by the sources of EU administrative law and the grounds on which judicial review is available. The focus then turns to the way in which these have been shaped by background principles and the range of acts that are amenable to judicial review. The final section considers whether it would be desirable for there to be a general code of administrative law in the EU.

This chapter focuses on political supervision in the multi-level system through the Council and the European Parliament, but Member States' structures of political supervision also play a role. Political supervision of administrative activity takes place horizontally between EU institutions and bodies within the concept of institutional balance. It also takes place vertically between Member States and the EU, which mutually control each others' activities in the realm of the implementation of Union law. Which forms of political supervision exist, and whether the available forms of political supervision are sufficient to hold EU administration actors politically accountable, are explored in the chapter.

This book is concerned with EU administrative law, which includes analysis of the main forms of administration through which policy is delivered, as well as the principles of judicial review. It is fitting therefore to begin with an understanding of the history and typology of EU administration. This chapter starts by considering the evolution of EU administration. The focus then shifts to typology, and the features that distinguish different types of EU administration. The analysis takes as its ‘staging posts’ the original Rome Treaty and later Treaty amendments, and considers the evolution of EU administration in each of these periods.

This chapter examines the concept of delegation in EU administrative law. It begins with the legal issues relating to the constitutional framework of delegation to EU institutions under the EC Treaty before discussing the new constitutional framework established by the Lisbon Treaty of delegated and implementing acts under Articles 290 and 291 of the Treaty on the Functioning of the European Union. It examines the increasingly important delegation of powers to European agencies in the light of the continuing relevance of the Meroni doctrine. It then turns to an assessment of the entrusting of EU powers to the Member States and gives consideration to the constitutionally challenging involvement of private bodies in the implementation of EU policies. It provides an account of the specific issues concerning delegations in respect of financial matters. It concludes with a consideration of the legal issues relating to intra-institutional delegation, in particular within the Commission.

This chapter focuses on administrative rule-making by private or semi-private parties. It discusses important developments in EU administrative law in this direction, including coregulation and self-regulation, especially the practically relevant subject of European standard setting.

This chapter is concerned with access. It is the natural starting point for consideration of administrative law doctrine. Any system of administrative law will have access points or gateways, which determine who can get into the system. There are two crucial access points in any legal regime. There will be procedural rules determining who is entitled to be heard or intervene before the initial decision is made, or who is entitled to be consulted before a legislative-type norm is enacted. There will also be rules of standing that determine who should be able to complain to the court that the initial decision-maker overstepped its powers. The discussion begins with the jurisprudence of the European Court of Justice and Court of First Instance/General Court concerning the right to take part in the initial determination. It shows that the courts have distinguished sharply between the right to be heard in relation to individualized decisions and consultation and participation in relation to norms of a legislative nature. This is followed by consideration of political initiatives to foster consultation in the EU legislative process. The remainder of the chapter is concerned with the other main access point, standing to seek judicial review. There is a critical evaluation of the case law, discussion of the possible impact of the Charter of Rights, and consideration of the reforms made by the Lisbon Treaty.

The Introduction outlines the notion, the main features, the sources and the scope of the pan-European principles of good administration developed within the framework of the Council of Europe (CoE). It elaborates on their relationship to EU administrative law in describing the characteristics of EU administrative law and contrasts it with the characteristics of ‘CoE administrative law’. Moreover, the Introduction discusses the commonalities of the research on the pan-European general principles of good administration with the research on European human rights law and the quest for a ‘European rule of law’. It furthermore examines the general concepts of ‘good governance’ and ‘good administration’, the differences between them and the relevance of these notions for the research on pan-European principles of good administration. It finishes with a presentation of the effectiveness of pan-European principles of good administration as a main research question and the approach thereto taken in this book.

This chapter analyses the purposes and functions of supervision and enforcement of administrative activity generally in the context of the European Union. The first section presents some background reflection on the conditions applying to such activity in this specific context. The discussion covers interdisciplinary perspectives, supervision and enforcement in EU administrative law generally, accountability, and supervision through specialized and independent authorities. The second section addresses broad methodological approaches that apply to different categories of supervision.

The previous chapters were concerned with access, process, and transparency. This chapter turns to substantive review and it is natural to begin with competence and subsidiarity, more especially so because lack of competence is one of the specific grounds of judicial review in Article 263(2) TFEU. The EU is based on attributed power. The general principle is, and always has been, that the EU only has the competence conferred on it by the Treaties. Prior to the Lisbon Treaty, it was however difficult to decide on the limits of that competence. The existence and scope of EU competence were therefore key elements in the reforms that culminated in the Lisbon Treaty. There are now categories of competence specified in the Lisbon Treaty: the EU may have exclusive competence, shared competence, or competence only to take supporting, co-ordinating, or supplementary action. Legal consequences flow from this categorization, which are examined. There are, however, certain areas of EU competence that do not fall within these categories. The chapter considers the extent to which the new regime clarifies the scope of EU competence and contains EU power.

While the precautionary principle is found in some legal systems, such as Germany, it is nonetheless relatively novel as a precept of administrative law. It has however become of increased importance in EU law. This chapter begins by examining the development of the precautionary principle into a general principle of EU law. It then analyses the use of the principle for review of EU and Member State action. It considers the political status of the principle and the way in which it informs decision-making. The chapter concludes by assessing the principle from a more normative dimension. There is considerable controversy over the meaning of the precautionary principle and its application. The political and legal interpretation of the principle is evaluated in the light of this critical literature.

Proportionality is an important principle of EU administrative law. It can be used to challenge EU action, and Member State action. Different considerations tend to apply in these two spheres, and this chapter focuses on proportionality and Union action. The discussion begins with analysis of the meaning of proportionality as elaborated by the Union courts. It then focuses on the way in which proportionality has been applied and the intensity of review. Three broad types of case can be distinguished: cases involving discretionary policy choices, whether social, political, or economic in nature; cases concerned with infringement of a right recognized by EU law; and cases involving a disproportionate penalty or financial burden.

The Treaty of Maastricht introduced the European Ombudsman into the institutional landscape of the Union. The emergence of an extra-judicial mechanism geared towards overseeing the administrative behaviour of the Union bureaucracy served a two-fold objective. In legal terms, it sought to enhance the protection of citizens' rights and interests in the Union space by establishing an alternative route to administrative litigation. In political terms, it was employed as a tool to put a smiling face to a largely distant, impersonal, and incomprehensible Community structure, sooth the growing uneasiness of the Union citizenry, and sugar the pill of further European integration. This chapter is organized as follows. It begins with a brief discussion of the historical emergence of the Ombudsman. It then considers the powers of the European Ombudsman and the restraints placed thereupon. It analyses the way in which the Ombudsman has defined and applied the concept of maladministration. Specific aspects of the institutional relationship between the Ombudsman and the Union judiciary are then addressed. The chapter concludes with some general remarks pertaining to the institutional evolution of the Ombudsman in the Union's political and legal order.