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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 examines the overarching principles which frame the EU's administrative law. It looks at the meta-principles of democracy, the rule of law, and the protection of fundamental rights. This is followed in more detail by a discussion of principles of very particular relevance for administrative action, such as transparency, legal certainty, and legitimate expectations, as well as the rights of defence and the principles underpinning the concept of good administration.

This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative action and the procedures, prerequisites, and processes of supervision which apply to them. Such sources arise from European Treaty provisions, and legislative, delegated, and implementing measures. To a certain, albeit limited, degree they may also arise from customary public international law or international agreements. Further, in certain contexts, they may arise from national law. The chapter presents such sources with special emphasis on their connection with administrative action in the EU.

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 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.

Not all actions of European Union or Member State authorities implementing European law are decisions ‘intended to produce legal effects’ in the sense of Article 263(1) TFEU (Article 230(1) EC) or of the equivalent Member State legal provisions. Frequently, administrative action is explicitly or implicitly designed to have factual, as opposed to legal, consequences or effects. Such ‘factual conduct’ or ‘factual acts’, as these phenomena of administrative action might be called in practice, in order to distinguish them from formal, legally effective measures, do not occur in a legal vacuum in the Union context, any more than they do in the context of national legal systems. Rules and principles of European administrative law frame cases of factual conduct, establishing both criteria for their legality and the consequences of the illegality, especially in situations involving violations of rights. This chapter discusses various categories of factual acts and factual conduct.

This chapter deals with the rules and principles governing the substance of administrative decision-making, focusing on the scope of the administration's influence over the substance of decisions. In many instances, the European administration has been allocated a discretion or a margin of appreciation linked to its perceived expertise, or to its political role in the decision-making process. In other instances the relevant law, the application of which is entrusted to the administrative authorities, is more restrictive and determinative of the decision-making outcome. It is shown that such categories are far from absolute, and the boundaries between them not impermeable. Indeed, the scope for appreciation and the exercise of a discretion by the administration is rather to be seen as being on a sliding scale. That scope is relevant not only as regards the range of policy considerations which the administration can pursue or take into account, and its freedom of movement in doing so, but also for the degree to which the European courts are willing to engage with the substance of administrative action when supervising these in the context of judicial review.

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.

This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.

The rule of law is absolute, constituting the basis of the legal order within which legislative sovereignty must be located and defined. The supremacy of the rule of law entails recognition of a fundamental division of sovereignty. The common law, which today holds the existence of a free and democratic society as its basic tenet, must be viewed as built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts. This chapter discusses judicial review of administrative action, the moral foundations of H. L. A. Hart's ‘rule of recognition’, the evolution of the rule of recognition citing human rights and European law, and the constitutional limits of parliamentary sovereignty.

This chapter deals with how the aspiration of proportionate intrusion has manifested itself in the case law. It starts by considering the reception of the Act in areas already covered by legislation for which it was not obvious that the Human Rights Act was designed. It discusses the impact of the measure on judicial review of administrative action. Then it explores how the common law has coped with the dramatic legislative challenge to its culture. Lastly, it considers the problem of retrospectivity, an issue which has provided the first major crisis for the judicial branch in its interpretation of the Act. In all of these areas, the Human Rights Act has had to be managed to enable its best features to be revealed while preventing the measure from getting out of control.

This chapter introduces the means of achieving the three objectives of this book: to enhance the understanding, guide the future development and justify the core features of contemporary administrative law. First, the historical backdrop to the development, in recent decades, of general principles of administrative law is explained. Second, the four values which provide structure to the law of judicial review of administrative action are introduced: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. Third, an explanation on how these values are used to interpret the core features of contemporary administrative law is given. Fourth, the chapter addresses the book’s comparative approach, justifying the choice of Australia, Canada, England, Ireland and New Zealand as its focus. Fifth, this chapter situates the book’s interpretivist approach, which relies on a plurality of values, in the existing scholarly literature on administrative law, noting that unlike others this book does not argue that there is one single meta-value, meta-principle or meta-concept around which the subject revolves. Lastly, this chapter provides an overview of the rest of this book.

This chapter gives an account of the growth of administrative agencies in the first half of the twentieth century, particularly after 1930. The chapter emphasizes the comparatively novel status of agencies as governing institutions in America, and the legal and constitutional issues their emergence posed for courts, states legislatures, and Congress.

This concluding chapter has two objectives. First, to demonstrate the robustness of the interpretation of contemporary administrative law presented in the preceding chapters, underscoring how useful this interpretive analysis is to understanding the law of judicial review of administrative action and guiding its future development. Second, the chapter defends the legitimacy of the core features of judicial review of administrative action, as these have been developed over the years by judges. In achieving these two objectives, the chapter relies on the criteria for testing the robustness of legal theories set out by Professor Stephen Smith in Contract Theory: fit, transparency, coherence and morality. The interpretation of contemporary administrative law described in this book fits the decided cases, it is reasonably transparent, it is coherent and it rests on recognisably moral foundations. In short, to conclude, contemporary administrative law facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

This chapter identifies the administrative due process of law from a conceptual point of view. It places due process in the context of concepts that are used by administrators, judges, and arbitrators in order to achieve a twofold purpose. First, for the sake of conceptual clarity, whilst seeking to set the framework for our consideration of what due process and other concepts with which it is often associated have in common, its distinctive traits will be pointed out. Second, it argues that the administrative due process of law is not only distinct from those other concepts. It also provides a set of indicators of procedural fairness and propriety that are partially distinct from the indicators that are used to assess both the legality of administrative action and (non)denial of justice, and are more rigorous for assessing the conduct of public authorities than the generic and loose concept of non-arbitrariness.

This chapter discusses administrative procedure and judicial review in Spain. The Spanish Constitution of 1978 (CE) devotes two central provisions to judicial review of administrative action. Article 106(1) CE, located in Part IV on government and administration, establishes that 'The Courts control the power to issue regulations and to ensure that the rule of law prevails in administrative action, as well as to ensure that the latter is subordinated to the ends which justify it'. On the other hand, Article 24(1) CE enshrines the fundamental right to effective judicial protection, which also includes protection against administrative action: 'Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended'. Judicial review is usually performed by specific courts fully integrated into the judiciary, the so-called jurisdicción contencioso-administrativa (administrative jurisdiction), competent to review administrative action subject to Spanish administrative law.

This chapter studies administrative procedure and judicial review in Hungary. Section (1) of Article XXVIII of the Basic Law of Hungary (the Constitution of 2011) regulates the right to a fair trial reproducing the text almost word-for-word as found in Article 6 of the European Convention on Human Rights (ECHR). Consequently, anyone effected by an administrative measure has the (constitutional) right to judicial review. Section (7) guarantees the right to legal remedy against decisions of the courts, the public administration, or other authorities that infringe their rights or demonstrable interests. The two regulations are effective even separately, but their combined effect is that the judicial review of administrative action is an incontestable constitutional right. Administrative courts decide on the legality of the administrative action from the point of view of substantive and procedural administrative law, the judicial review is regulated by Act I of 2017 on the Code on Judicial Review of Administrative Actions, while a lawsuit for damages is heard by the ordinary court in a civil law procedure regulated by Act CXXX of 2016 of the Code of Civil Judicial Procedures.

This chapter provides a comparison of the discipline of judicial review of administrative action in Latin America and in Europe. In terms of judicial review in Latin America, international organizations did not exercise an 'integrative influence' as the Council of Europe and the European Union did in Europe. It may be said that the relative homogeneity of the systems of judicial review in Latin America is mainly the result of the cultural polity formed by many states resulting from the disintegration of the Spanish and Portuguese domains. The chapter then considers the main points of the general part of Professor Brewer-Carias's report on the discipline of judicial review of administrative action in Latin America, which shows a situation very similar to the European one. These include the nature of judicial review; administrative procedure and judicial review; procedural infringements; administrative appeals; monism and dualism; and judicial proceedings.