Comparative public law in Europe
In his discussion of Brexit, Professor Weiler diagnoses that Brexit brings Europe away from a “community of faith” and makes it reverse to a “community of convenience”. He further explains this development: “[…] whilst one can and should have deep divisions and conflicts within the Union as regards its policies, scope of action, methods of governance and the like, such divisions and conflicts have to be resolved within the framework of the Union, its Member States and their peoples being attached to each other indissolubly. [….] Brexit discourse, spilling over from the UK debate to the whole of Europe, regressed the Union back to a contingent, ongoing project, the viability of which may be challenged at any moment, depending on a material balance of costs and benefits.”(1)
More optimistically, Professor Weiler concludes his analysis: “If a UK status is appealing to this or that Member State, let it be. Those states would not in any event be helpful in a Union which needs some brave and decisive fixes to its structure and processes, not least the structure and processes of governance. For those who remain, most if not all, it will be a moment of willed re-commitment rather than scared, coerced, resentful and contingent inertia.” (1) The question is how can we ensure that the “remainers” have all the suitable – legal and administrative – tools available for moving to this community of faith when the time will come to do so.
Brexit makes us deeply think about the level of integration achieved since 1957. Apart from the tip of the iceberg, the so-called integration through law strongly promoted by the Court of Justice, where the heart of the EU is beating most unambiguously, the extent to which the project of European integration had been achieved, is far less crystal-clear. Once we move from the high planes of constitutional principles to move into the administrative meanders, the details become truly devilish. If we want to answer to the question of how European law is actually implemented by European and domestic administrations or how individual decisions related to market authorizations, patents, GMOs, registered designations of origin, state aids monitoring, cartel investigations are taken, we enter very quickly a jungle of European bodies, committees, agencies working with domestic (national, sub-national and/or local) bodies, committees and agencies according to an incredible range of tailored procedures. These bodies, committees and agencies sometimes work in networks, sometimes through voluntary agreements, sometimes within a Treaty or derived legislation framework, sometimes within a soft law framework. There are nearly as many possible interactions as there are policy questions. Their entanglement is staggering.
Legal scholars have tried to develop tools and principles to clarify the legal position of citizens, public bodies and economic actors, when they have to deal with that administrative entanglement. Some scholars highlight “accountability” as the best remedy within a “multi-level governance” system. Other scholars favour the development of a European act dealing with the European administrative procedure and the general principles that should be applied. The notion of an “European administrative space” has also been mentioned, a concept that seeks to emphasise the making of an “integrated European administration” and the means of coordinating the different bodies involved in administrative decision-making.
However, these approaches seek to picture a change in how administrations work. They suggest very readily that the EU brings “Europeanisation” of domestic administration; that convergence or harmonization are becoming a reality within Europe. Yet, there may be more continuity with the “old” habits of how national administrations make their decisions, and thus more diversity across national administrations than implied by the ideas of “Europeanisation”, “harmonization” or convergence.
Therefore, an inquiry into this diversity of European administrative systems may be useful. Indeed, member state’s governments have, for instance, different political priorities (even concerning the implementation of EU law) as well as different understandings of democratic rules, including the roles of the legislator, the judges, the administration and of the rule of law. They have different administrative cultures, in particular as regards the structure, tasks, routines and organisations of administrations, the professional training of civil servants and accountability systems. The diverse approaches to social and political questions such as the refugee crisis or the financial crisis illustrate these diverging administrative cultures extremely well.
From a legal point of view this “diversity” of the member states’ administrative systems is acknowledged as a basis of European integration itself. Following Article 4 paragraph 2 TEU (Treaty on the European Union): “the Union shall respect the equality of Member states before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member state”.
The differences between member states’ administrative systems is also reflected in Article 197 TFEU (Treaty of the Functioning of the European Union). Even while this provision proclaims that effective implementation of Union law by member states is essential for the proper functioning of the Union and shall be regarded as a matter of common interest, the power of the EU to support the “efforts of the Member States to improve the capacity of their administrative capacity to implement Union law” is very limited.
Mapping the extent to which this room for diversity exists and is actually used by Member states when it comes to implementing EU law becomes crucial in times when calls for bringing back powers from Brussels to national parliaments are multiplying all over Europe. It becomes imperative to investigate the actual tools of European harmonization, the concrete challenges that they are confronted with and the freedom that Member States actually enjoy when they have to implement EU law in their national systems.
In order to contribute to these discussions, the Deutsches Forschungsinstitut für öffentliche Verwaltung (FÖV, Speyer) embarked in a project assessing this diversity across European administrations. In making extensive use of comparative law and actively engaging with members of national and European administrations, our project seeks to map this diversity at global (external) (sub-project entitled emergence of a supranational executive order), at regional level (sub-project on pan-European principle of good administration), at procedural level (sub-project on the forms of administrative action), and at national and local levels. We can detail two of these sub-projects here to illustrate how diversity in domestic administration will be investigated.
The underlying idea across these case studies is to charter the policy-making options available to member states’ governments and administrations within the EU legislative framework. Our project seeks to test the hypothesis that at least part of the difficulties encountered by member states in implementing European legislation is rooted in the interpretation, understanding and operationalization phases that occur within member states’ administrations or/and that are chosen by national policy-makers. National administrations and policy-makers may be unaware of the whole range of options that European law leaves to them for reasons connected to their own history, institutional pathways or/and administrative cultures etc.
Therefore, the project will provide ideas that can contribute to developing an overall picture of the flexibility offered by the EU legal framework and the administrative freedom of action that national governments and administrations possess within this framework. Strategies for using this administrative freedom of action can thus be developed at national level. This research direction can be extremely fruitful as it can demystify the current ideas that our current sorry state of affairs is due to “Europe” and that “taking control back to the people” at national level will solve it. Maybe part of the current problems can find a solution thanks to a better understanding of the legal and administrative tools readily available – provided that the political will to use them is mobilized, that is.
As the pendulum between integration and implosion, between unity and diversity will swing again on the European continent, this project will provide more sophisticated tools to understand the extent of administrative diversity among states participating in the European project: it will give offer a springboard towards rejuvenating this “community of faith” that Professor Weiler calls to re-awaken!
Professor Ulrich Stelkens
Deutsches Forschungsinstitut für öffentliche Verwaltung
(FöV, Speyer – Germany)
Suggested citation: U. Stelkens, “The European Administrative Space – From integration to implosion: A return journey?” available at https://europeancommonwealth.org/2017/02/17/stelkens-the-european-administrative-space-from-integration-to-implosion-a-return-journey)