European Administrative SpaceIvana Kovaevi, EI 2014/21The Role of the European Court of Justice in shaping the European Administrative SpaceIntroduction

EU took a major step toward creating the EAS with the research carried out in the European Institute of Public Administration, with the establishment of the Copenhagen and Madrid criteria and the adoption of the Treaty of Amsterdam in 1997. The document SIGMA Paper No.27.1999 classifies 4 group of principles:1) Reliability and predictability;2) Openness and transparency ;3) Accountability (public responsibility);4) Effectivness and efficacy.These principels represent foundation for the European Administrative Space and the convergence and coherence of public administration is reflected through the implementation of these standards in legislation and especially in practice. In most Member States these principles are enforced by the national constitution and included in administrative legislation and also in financial control systems, internal and external audit and public procurement. As one of the driving forces of the EAS, it no wonder why we are today considering the role of ECJ in shaping and development of the European Administrative Space.Judicial system of EU overview

European judicature consists of two levels of European court:1. Court of Justice of the EU2. National Courts they are considered to be European courts since they practice EU lawEuropean Court of Justice plays a major role in shaping the common administrative law principles within the EU. Whereas EU secondary legislation is almost exclusively sectorial, the ruling of the European Court of Justice lead to reflections on and development of administrative principles which are more general in nature, even if they are set forth on a case-by-case basis. In fact, the jurisprudence of the Court is the main source of general (non-sectorial) administrative law in the EU. Many unwritten principles shape European administrative law. On the one hand, the important role of unwritten sources is due to the specific nature of Community law. The Treaty establishing the European Community, almost like a trait cadre, only set leading goals and principles and left the gap-filling to secondary legislation and, if necessary, to the jurisdiction of the Court. On the other hand, judge-made law at the Community level is typical of administrative law, which at its origin was shaped primarily by judgesin particular, the French Conseil dEtat. Not very long ago, codes of administrative procedure were first drafted and promulgated to serve as written sources of administrative law in the Member States. The administrative law of the Community shows similar features, although it rightly claims to be a new, independent legal order of its own. The European Court has come a long way since the famous Algera case in developing general principles of administrative law and procedure, especially those principles regarding rights of defense.[footnoteRef:1] [1: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1305&context=lcp, p.88]

ECJ as Administrative Court

This administrative activity of the Court is thus strictly ensuring the exercise of the judiciary function, which in turn has been a powerful tool for shaping the conditions of the exercise of powers in the European administrative system here been an increase in forms of administrative action on the EU level, also the Europeanization of Member State political and legal systems has intensified. This in consequence, has led to a larger amount of policy areas affected, the creation of a greater diversity of actors and forms of procedural interaction between them. At the same time, the last 60 years have also been marked by a profound change in the understanding of the necessary coherence of a legal system in that the role of fundamental rights and principles as guiding concepts for all policy areas has risen. On the EU level this is reflected also by an increasing amount of sources of such rights, principles and values which need to be balanced. These changes were, in part, the results of case-law of the CJEU often developed in cooperation with national courts; In part, they can be attributed to changes in the nature of the legal system of the EU to which courts are struggling to find answers. The CJEU has itself over time established criteria for legality of action of administrations as well as for interpretation of written EU law by the development of General Principles of EU law. Such General Principles include procedural rights such as inter alia the right to an effective judicial remedy or the right to good or sound administration, as well as specific substantive rights such as the right to property, to academic freedom and others. [footnoteRef:2] [2: Herwig C.H. Hofmann, The Court of Justice of the European Union and the European Administrative Space, in: Michael W. Bauer, Jarle Trondal (eds.) The European Administrative System, Palgrave (Basingstoke and New York, 2014), online https://orbilu.uni.lu/bitstream/10993/13997/1/Administration%20and%20Judicial%20Review%20FINAL.pdf]

In any event, the principal ECJ decisions were bent on establishing the supremacy of E.C. over member state law and the legal compulsion of the freedom of movement of economic resources across national boundaries provided for in the treaties.[footnoteRef:3] [3: Shapiro, 7.]

The ECJ elaborated most of the administrative law principles governing what could be termed as common European administrative law. This is natural, because of the fragmented nature of European administrative written law. The Treaties were designed to serve as framework requiring further and continuous developments. Many issues were designated for regulation by the Commissions secondary legislation which are covering mainly sectorial policy fields. As EU law has to be interpreted in uniform matter, national courts are induced when piece of legislation could appear to be unclear, to refer the issue to the European Court of Justice for interpretation (Art. 234, EU Treaty). This contributed to the prominent role that the ECJ plays in developing the common principles, by setting an interpretative framework to be followed by national courts. It can be said that today there is a common acquis of legal administrative principles developed by the European Court of Justice.Case law and principles

In early years the ECJ case law was influenced by the legal systems of the initial Member States and particularly by the concepts stemming from French administrative law. Yet, there has never been a sole French influence on the development of the EU law, and the growth of membership has led to diversification of the sources of inspiration of the ECJs legal thinking. This means that the rulings of the Court do not respond particularly to a given national legal background, but that its jurisprudence is rather composite of influences stemming from virtually all Member States.Example:Administration through law Principe de lgalit Rechtsstaatlichkeit Rule of LawWhile Community secondary law is predominatly sectoral, the Courts case law points in sum to the development of more general administrative principles. The jurisprudence of the Court is the main source of general (non-sectorial) administrative law in the EU (Cardona), even though the principles it refers to need to be derived from general administrative law principles as established by national administrative courts of the Member states. Two rulings are of particular relevance to illustrate the impact of the case law:1) The Francovich case established priciple of direct state liability for compliance with the EC law;2) Commission vs. Belgum 149/79 Court intervened to define concept of national public administration. In sum, although legislative procedures of the EU have not established a common policy on public administrations, the ECJs case law has produced dunctionally equivalent effects.Reliability and Predictability

Legal certainty and predictability of administrative actions and decisions, which refers to the principle of legality as opposed to arbitrariness in public decision-making and to the need for respect of legitimate expectations of individuals. As an EAS principle, it may be rephrased as administration through law, a principle meant to assure the legal certainty or juridical security of the public administration actions and public decisions. Other connotations of this principle may be observed when we refer to the opposition of the law supremacy in regard to the arbitrary power, cronyism or other deviations of the latter that should not be seen as similar to the discretionary power applicable in cases when, within the legal framework, a certain degree of decisional freedom is allowed.Case: Case of Technique University of Munchen, 1991, ECR-I-5469Openness and Transparency

Openness and transparency impose themselves following the reality that public administration is the resonator of the society, assuring the interface with the citizen, the user of its services. The development of different social phenomena, such as the corruption or mal-administration, must be controlled by the society. As such, the openness and transparency refer to these exact attitudes and constitute the necessary instruments for achieving the supremacy of law and the equality before the law and its representatives. Its aim is to ensure the sound scrutiny of administrative processes and outcomes and its consistency with pre-established rules. Assuring the openness and transparency, we protect both the public and individual interests. As with previous group of principles, the openness and transparency are supported by the administrative law. We refer here to practices imposed by the administrative principles, like in the case of administrative actions being accompanied by statements of reasons, etc. The Lisbon Treaty sets out a more stable institutional system, and advocates in this respect for a more democratic, responsible and transparent governance. It should be noted that openness gained new characteristics once the public administration was considered to be a public service. In this context, openness becomes acquisitiveness to the citizens or other authorities initiatives regarding the improvement of public services and their getting closer to the citizen. Case:

Accountability

It is one of the instruments showing that principles like the rule of law, openness, transparency, impartiality, and equality before the law are respected; it is essential to ensuring values such as efficiency, effectiveness, reliability, and predictability of public administration. As it is described by the authors of the EAS, accountability means that any administrative authority or institution as well as civil servants or public employees should be answerable for its actions to other administrative, legislative or judicial authorities. Furthermore, accountability also requires that no authority should be exempt from scrutiny or review by others, which means that, simultaneously or priory, mechanisms for implementation are created. These mechanisms contain a complex of formal procedures that give a concrete form to the accountability act, as well as supervision procedures that aim to ensure the administrative principle of administration through law, as it is essential to protect both the public interest and the rights of individuals as well.Case:Efficiency and Efficacy

The introduction for the public sector and public administration of the efficiency and efficacy as important values is relatively recent. This is to be understood since today, when serious fiscal constraints and development of the goods and services are in place, talking of an economic optimum for the public sector is possible (Matei, 2004: chapter VI). In this context, efficiency becomes a managerial value that points towards maintaining the optimum equilibrium between the allocated resources and the obtained results, while efficacy a connected value that makes sure that the activity of the public administration achieves the intended objectives and solves the public problems recognized by law and the governance process as in its duties. The analyses in the field show that it is possible to discuss of contradictory developments between assuring efficiency ad the rule of law. The European Commission has already intervened, by creating legal institutional solutions directives to prevent these developments. European Community law also calls for efficient administration, particularly with regard to the application of Community directives and regulations. Relevant to this end we may note the reinforcement, under the Lisbon Treaty, of the Protocol on the application of the principles of subsidiarity and proportionality, where for the Commission, it is stated that any legislative proposal should contain a detailed statement [] which [] should contain some assessment of the proposal's financial impact and, in the case of a framework law, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation (article 4).Conclusion

The absence of a genuine administrative acquis has hence not been a hindrance for the ECJ to establish a number of general administrative law principles. In contrast to these developments inside the EU, this lack in Community law was an obstacle vis--vis external states. The notion of EAS was therefore invented as a placeholder and metaphor for an actually non-exisrent single model and collective term of those implicit rules ensuring the administrative coherence in the EU.Within the EU, Member states retain full formal authority over their public administrations and are bound only by a set of principles that leave considerable scope for interpretation. Beyond this, the ECJ case law has established some core principles. The shift from principle of procedural autonomy to uniformity in legal interpretation and openning up of national administrations recruitment systems have leveled up the ground for shared responsibility and competences across the levels of governance when applying EU law.