European Public Law
LECTURE 1: Introduction
1. FROM INFLUENCE TO EUROPEANISATION OF ADMINISTRATIVE LAW: HISTORY AND CONCEPTS
→ why we have to discuss European public law? Why do we think that there is something as
Europeanisation taking place?
Europeanisation of administrative law, what does that mean?
1.1. European law and European administrative law
- Administrative law = governs relations between citizen and government (the state)
o → Traditionally = a national matter
▪ The various MS do differ a lot !
o → Similar problems, similar solutions, mutual inspiration
▪ Benelux, France, Italy
• Have administrative courts (ex.: Raad van State)
▪ Germany, Austria
• Marked by the experience of the second WW → we have seen, with
Nazi regime, what happens if an executive takes hold of the entire
government → need for strict protection against that government in
terms of checks and balances, but also in terms of protection of the
individual (be able to stand up against a government that becomes too
intrusive)
▪ UK
• Without a written constitution, but there is a unwritten set of rules that
covers the relationship between legislator, executive, courts →
creating balance
→ very different systems, but at the same time the type of problems are similar
- So, if you have similar problems, not surprising that similar solutions start to become evident
- Process in every MS: transition whereby the traditional ideal of a supreme legislator is being
hollowed out by the rice of an executive
o Executive that starts to realise that ‘the king’ or ‘the government’ can’t run the country
by itself → creating bodies to assist in that
- Over time, people start to note these parallels between the various legal orders
- First wave of Europeanisation
o Council of Europe (Raad van Europa)
▪ Function: promoting rule of law
o European Convention on Human Rights (ECHR) (1950)
▪ No specifics on administrative law as such
• Says a lot about the relationship between the citizen and the state
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, ▪ Article 6 ECHR case law of the ECtHR (concept of ‘civil rights and obligations’)
▪ Human rights law is the quintessential area (= typisch gebied) for clashes
between government and citizen
o See infra: Recommendation CM/Rec(2007)7 of the Committee of Ministers (of the
Council of Europe) to member states on good administration
▪ If we are going to develop our administrative law, if we are going to interact
with our citizens, what are the principles we should take into account
- Second wave of Europeanisation: implementation of European Union law
o PROBL: the EU requires massive participation of his MS to get anything done
▪ Implementing EU law → 2 forms:
• EU administration directe (Article 298 TFEU) = Union doing things itself,
through its own organs and bodies
o Delegation - Comitology
o Agencies
o Lecture 2
• EU administration indirecte (Article 291(1) TFEU) = relying on the MS
to do it
o Lectures 3, 4 and 6
o In the absence of harmonisation: EU has not set rules itself →
than the basic rule is: national procedural and administrative
autonomy (unless the EU has said otherwise, we assume that
every MS is equipped to implement EU law: all MS do have
enforcement mechanisms (sanctions, tribunals, courts, …),
rules on time limits, … BUT restrictions: (1) the requirement of
effectiveness and equivalence, (2) effet utile
▪ Article 4(2) TEU → respect for national constitutional
autonomy
• In principle, the EU takes the MS as they find
them (with respect for their constitution
structure, with respect for their organs)
▪ Effectiveness/equivalency
• = you cannot adopt rules that are worse off
when enforcing EU law then when enforcing
national law (so if rules for the EU make it
more difficult to enforce EU law, than
something is wrong)
▪ Effet utile
• = giving full effects to the demands of EU law
• If the courts finds that something is required
as a matter of effet utile, it automatically
applies to all MS (so EU wants something
precisely to be)
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, • >< effectiveness: a judgement about a
particular rule in a particular legal system in
context
o So things may be different in the MS
EXAMPLE:
- Consumer protection: weird provisions in your contract, by clicking yes on internet; you try to
get your money back; according to the terms you will have to submit to arbitration in Vienna
(witch as a Belgian consumer is problematic)
- There is EU law that says that this cannot be true → as a consumer you will be able to go to a
court nearby, and the court will be able to set aside this unfear contract terms
- Question is: should courts do that of their own motion? (uit eigen beweging doen)
o Some MS allow judges to, of its own motion, …
o >< countries like UK have a very strict system where the judge is passive, parties have
to be actives themselves (have to make arguments)
- There is case law of ECJ on the question if the court should raise issues of EU law of their own
motion, indicating that yes, if national system provides for that, you must do so (as a matter of
equivalence);
- Also case law, in the field of consumer protection where the ECJ said that the object and
purpose of certain consumer protection directives are really about protection consumers →
even if they fail to raise certain issues, judges must come to their rescue, even if that means
that judge has to do it of its own motion
o So if issue is about effet utile → any judge in the EU, whether that fits in the legal system
or not, will be bound
- Executive federalism = federal system in which legislative power is assigned to the federation,
but executive power is vested in the federated entities
o Anti-commandeering (United States)
▪ = prohibits the federal government from commandeering state governments
▪ Printz v. United States, 521 U.S. 898 (1997)
▪ New York v. United States, 505 U.S. 144 (1992)
o Commandeering (European Union, Germany, Austria)
▪ = requiring states to implement policies as a condition of federal funding
▪ Legislative: what else is a Directive?
• Directives = instructions to the MS to do things, create legislation,
achieving certain results (so not just about legislating, but also about
putting these thing into operation)
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, ▪ Executive: MS become (co-)responsible for implementation EU law into
national legal order
→ comparison between US system and the system in EU and other federal states
→ not self-evident that you can only set up a federal state whereby you give sufficient autonomy to the
constituent parts and that it is impossible to give some degree of orders
BELGIUM? → mixed
- There is an idea of sovereignty of our entities → in principle, we assume that we cannot
command the cooperation of the various federal entities
o Ex.: if federal state set up an advisory board at the federal level, you can invite
representatives of the regions to attempt, but you cannot force them to join
- There are instances where we do accept that the federal government set certain policy
objectives that need to be implemented by the entities
o Ex.: recognition of health professionals, rules are set at the federal level, but the actual
rules on the procedure for obtaining a licence is done at the level of the communities
a. Nuancing US anti-commandeering
EU and US are in a sense mirror images:
- US:
o no direct commandeering of the States through legislation
▪ based on idea of negative freedom → states becoming independent from the
federal structures, being able to pursue their own policies
o BUT: also has to do with money ! → there is 1 mayor exception on the principle of anti-
commandeering (buy off compliance = naleving afkopen)
▪ Federal government can buy off compliance
• It cannot force the states to do things, but can offer money
▪ spending clause (= uitgaven clausule):
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