Speaking Notes 10 November 2014
Professor Herwig Hofmann
EP JURI Committee information on
ReNEUAL Model Rules on EU
Administrative Procedures
Herwig C.H. Hofmann
Professor of European and Transnational Public Law, Jean
Monnet Chair / University of Luxembourg, FDEF, Centre for
European Law / 4 rue Alphonse Weicker, L-2721 Luxembourg;
Tel: +352 46 6644 6616
Herwig.hofmann@uni.lu
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1) Introduction
• The Research Network on EU Administrative Law (ReNEUAL)
• Is a network of over 100 scholars from around Europe and has in a 5 year project
developed Model Rules for EU Administrative Procedure.
• It was actively supported by the European Ombudsman.
• ReNEUAL has addressed in the past 5 years some of the most challenging
design-tasks for contemporary Rules on EU Administrative Procedures Law:
• ensuring compliance with constitutional principles of the EU in the context of a
• de-central implementation of EU law.
• The basic assumption of the EP´s resolution of 15 January 2013
• calling for a Commission proposal for a regulation on EU administrative procedure
based on constitutional principles.
• Approach shared by ReNEUAL: administrative procedure law as a concretisation of
constitutional law.
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I will address 3 questions :
1. Is this the right moment of an innovative codification of EU
Administrative Procedures?
2. Codification of What?
3. What are the bid underlying choices to be made in this context?
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2) Timing - Is this the right moment ?
• An innovative codification of EU Administrative Procedures now?
• Generally, the design of EU administrative procedure law faces the
same challenges of public law in general:
• To ensure that the procedures and institutions for effective decisionmaking are established whilst,
• no less importantly, protecting the rights of individuals.
• Three elements need to be respected by a system guaranteeing
procedural justice :
• fairness (or value orientation),
• effectiveness (or ‘output-legitimacy’) and
• procedural legitimacy (or ‘input legitimacy’).
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3) Codification of what?
• Certain common forms of act exist :
a) Executive rule-making (generally binding regulatory acts),
b) Single case decision-making (binding decisions with identified
addressees),
c) Contracts (binding agreements).
d) Information management (mutual assistance and the collection
and handling of information in structured information systems)
• these are special features of the de-central nature of implementation of EU policies.
• Structuring administrative procedures around specific problems
arising in the forms of act has proven in many legal systems as being
the most promising approach.
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a) Rule-Making
• Executive rule-making is a sector in EU administrative law which
• Covers
• Delegated and implementing acts under Articles 290 and 291 TFEU
• Could also touch upon many more forms e.g. guidelines issued by EU agencies.
• (although this should arguably be left to a second phase if at all after testing the concepts on
Article 290 and 291 TFEU procedures)
• Rule-Making can directly influence the outcome of decision-making for
individuals. It is an area:
• Suffering from a lack of coherence between constitutional principles such as the ones
outlined in Article 11 TEU and procedural reality.
• Marked by a great diversity of sector-specific legislation and a scarcity of general
principles in the case law of the CJEU.
• With great potential for creating procedural rules improving the functioning and
accountability of administrative action in the EU.
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ReNEUAL Model Rules on rule-making
• Are mainly focussed on the phase prior to the presentation of the
draft act by the Commission to the Parliament and Council under Art
290 TFEU and Art 291 (and comitology) TFEU
• Are based on the distinction of 3 phases of rule-making procedures
(pre-adoption):
• Initiation,
• Full an impartial assessment of all relevant facts,
• Consultation,
• Reasoned report.
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Issues for rule-making:
• Initiation of a Rule-making procedure:
• The Guiding principle should be: the administrative organisation between and
amongst actors should have no effect on procedural rights and compliance
with requirements of participation and transparency!
• Steps to achieve this include for the authority in charge of preparing the rule
(generally Commission or an EU agency)
• should make public the intended act and its potential scope.
• Undertake a full and impartial assessment of all relevant facts (IA of a
proposed rule against identified alternatives - including cost-benefit
analysis if necessary),
• Consult where appropriate scientific expertise,
• Summarise the results of these studies then should be summarised in an
explanatory memorandum as basis of effective consultation.
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Further issues of rule making
• Effective and informed consultation should be used to
comply with obligations in Article 11 TEU to increase quality of
rule making:
• By adding to available information to administrations and
participants in deliberation.
• Requiring public justification requirement to put pressure
on quality of considerations.
• The final draft rule to be published with reasoned
report (also = contribution to more effective
administrative and judicial review).
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b) Single Case Decision-Making
• ‘Administrative acts’ for single case decision-making
• are the core of most of the procedural rules of Continental European legal systems.
• are the main focus of the developments of general principles of EU law on procedure
such as the rights of defence as restated by Article 41 of the EU Charter of
Fundamental Rights (CFR)
• Situation in EU:
• many sector-specific provisions in EU law contain relevant rules, but the level of
detail in various policy areas is very uneven
• e.g. on rights to a hearing.
• no standard best-practice set of rules exist for drafting policy related legislation.
• Result:
• unnecessary complications diminishing transparency and accessibility of rules
• associated reduction of accountability of actors.
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Special drafting requirement in the EU: composite
procedures
• Composite procedures
• structure the input into a single decision-making procedure from different
jurisdictions.
• Are increasingly common e.g. in the case in the areas of risk-regulation such
as medicines, food safety or others.
• This factor needs to be taken into account when designing procedural
rules
• not only oriented at a efficient linking of pre-existing national actors to an
administrative network
• but also looking at the rights and interests of individuals.
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Phases of decision-making
• Inception, Initiation,
• Investigation and hearings
• Final decision and obligations flowing therefrom.
• Rules on single case decision making
• are also designed to develop the minimal codification contained in
Article 41 CFR.
• need to keep in mind that in some instances the distinction between
rule-making and single case decision making can be fluid.
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Rules on single case decision making
• need to address inter alia :
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the way in which applications should be made and acknowledged;
identification of handling officers;
time limits;
administration’s powers of investigation and inspection, including rules of
proof and cooperation between Member State and EU bodies;
• inclusion of expertise;
• rules that govern the nature of a hearing and who can be a party to it, as well
as access to documents;
• process rules in composite procedures.
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c) Contracts
• Contracts are used extensively in EU Admin Law in diverse contexts:
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for procurement of goods and services.
research and technological development,
development aid,
judicial cooperation in civil matters as well as in criminal matters and police
cooperation,
• settlements of disputes about administrative duties.
• Generally: supporting, coordinating and supplementing actions of the Union
(e.g. in merger control contractual means are used either as supplement to a
merger decision or a condition for its existence in matters of divestment
requirements and the use of trustees to oversee behavioural commitments.
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Basic questions
• Should public contract law be specific administrative procedures or
follow general contract law?
• Should there be a specific law for public procurement?
• Should contracts between public entities be included into the scope?
• How to ensure that public authorities cannot by chosing the form of a
contract dis-apply generally applicable rules of public law including
procedural provisions in decision-making parts?
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Solutions developed by ReNEUAL Model Rules
• Solutions specific to the phases leading to the conclusion of a public
contract; conclusion of the contract; and, its execution and
termination.
• Model Rules suggest to make some of the basic provisions on
decision-making applicable to public contracts e.g. regarding:
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requirements of fairness and transparency of responsible actors,
principles of investigation,
treating expertise and other information sources,
granting hearings,
reasoning, clarifying legal remedies and language requirements.
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d) Mutual Assistance and Information Networks
• Offering proper procedures for information management is essential
for good administration in multi-jurisdictional composite procedures.
• It covers
• Mutual assistance
• (= cooperation by e.g. exchange of information; conducting inspections for a requesting
authority).
• Information management systems
• (= structured forms of information exchange or in databases – often managed by EU
agencies e.g. SIS II and safety warning networks such as RAPEX).
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Issues:
• Rights of individuals are directly touched both as parties to an underlying
procedure (see e.g. C-276/12 Sabou [2013]), as well as third parties.
• Necessity to provide for data protection and access to information ‘by
design’
• Ensure effective accountability in composite procedures:
• Central problem: diversity of legal rules applicable.
• National Courts often lack jurisdiction to review the legality of input into final
decisions resulting from other jurisdictions.
• Rules must allocate responsibilities and also allow for single standards of review.
• Essential for ensuring effective judicial review within the EU under the principle
restated by Article 47 CFR.
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3) Big underlying questions
• Relation of EU administrative procedure law to that of the Member
States?
• Relation of general EU administrative procedure law to policy specific
rules – minimum standards generally applicable or high level or
regulation from which policy-specific exceptions may be possible?
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a) Scope of application vis-à-vis MS
• The Model Rules presented suggest that:
• In principle, EU administrative procedure law should be applicable to EU
authorities only
• unless declared in full or in part applicable in policy specific legislation to MS
administrations = approach in e.g. Article 41 CFR.
• However, any rules relating to mutual assistance and information
management systems must be applicable also to MS actors when
participating in such action.
• Reason: Problems would arise from regulation only of the input of actions of EU
authorities in such inter-administrative arrangements of intensive collaboration.
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b) Relation of general to sector-specific law?
• Should rules on administrative procedure contain
• only minimum standards for all administrative activity?
• Disadvantage – lowest common denominator might raise standards in some areas but
might not be sufficient for best practice
• a higher level of protection with possibility of adaptation in policy- specific
matters?
• This is the approach of the Model Rules to provide for a good and transparent balance
between requirements of protection of rights of individuals and effective decisionmaking by public bodies.
• Consequence:
• In absence of any policy specific rules, the detailed and high level general
principles would be applicable. Combine flexibility for newly developing areas
whilst requiring that exceptions are made explicit and with justification.
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4) Conclusions
• EU administrative law has grown overly complex due to
• diversification of rules in various policy areas,
• multiplication of administrative actors and the requirement of a subsidiaritybased,
• de-central implementation of EU law.
• Well-designed procedural rules have the potential to
• Simplify this body of law by allowing to offload much detail to one general
rule-book.
• Add to the intelligibility of procedures, transparency, allocation of
responsibilities, content of rights.
• Enable both effective administration as well as protection of individual
procedural and substantive rights.
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5) Outlook
• Objective of legislating for an EU administrative procedure law is to
ensure that
• a democratic Union based on the rule of law in which transparency,
possibilities of participation and the respect of defence rights are not just
theoretical objectives but real-life organisational features.
• The objective of the ReNEUAL Model Rules on EU Administrative
Procedure is to:
• Propose forms of non-legislative implementation of EU law and policies,
• develop approaches to ensure compliance of implementation with the
increasing constitutionalisation of values and principles on which the EU is
based.
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