Barsea Conference: Comparative Public Law and European Legal Identity” – Account

On March 24^th 2017, the Essex School of Law organized a conference on “Comparative Public Law and European Legal Identity” thanks to the generous financial support provided by a British Academy Rising Star Engagement Award. Two workshops were organized prior to this conference: one workshop held in Essex on 29^th-30^th September 2016 and one workshop on 16^th December 2016. The aim of this project is to bring together a group of young scholars to discuss the current transformation of public law in a European and comparative context. This conference was convened by Dr Yseult Marique (Essex) and mentored by Professor John Bell (Cambridge). It was divided into five sessions. In one session, Professor Patrick Birkinshaw (Hull) gave the key note speech, discussed by Professor Herwig Hofmann (Luxembourg). Three sessions consisted in three to four paper presentations by early career researchers on their comparative research and engagement with non-academic actors. The last session featured presentations where non-academic actors explained their use of comparative law. This report briefly presents these sessions.

The first session (chair: Professor Fraenkel-Haeberle – Speyer ) entitled Engaging with non-academic actors – Challenges, opportunities and strategies featured presentations by Ana Bobić (Oxford) and Dr Josephine van Zeben (Oxford) (ECJ Jurisprudence as Joint Venture of the ECJ and National Courts), Luigi Pedreschi (EUI – Public Services and EU Trade – Framing the Debate through Sector Analysis) and Dr Mariolina Eliantonio (Maastricht – The Status and Effect of EU Soft Law in the National Legal Systems – A Survey amongst the National Judiciary and its Challenges).

• Ana Bobić and Josephine van Zeben’s research has been triggered by perceived inconsistencies in the case law of the Court of Justice of the European Union, especially the case law revolving around EU citizenship, national identity and public policy. Their research focuses on the possible deference shown by the Court towards national courts and vice versa. In addition, the national follow up of CJEU’s decisions (in Poland, Italy and Austria) and how the European and domestic legislators interact on these matters is considered. Preliminary findings of the research find (1) a division of tasks between the EU courts and domestic courts in terms of mutual cooperation and deference and (2) that the relationships between courts and legislators (cfr. separation of power and independence) are being reshaped.
• Luigi Pedreschi’s presentation engaged with the very controversial issue of trade agreements and their effects on domestic public services. While the debates are often politically polarised, Luigi suggested a nuanced approach to this tension between (a) EU trade agreements and (b) public services. He suggested the need to differentiate among different models. Two kinds of trade agreements are broadly available: GATS-like, wide-ranging but not very developed; NAFTA-like, narrower but more restrictive in their approach to public services. In parallel, different domestic models of public services co-exist: eg in the field of health care with the Beveridge (relying mostly on state provision) and Bismarkian (more open to private providers) models. The highest level of tension between trade agreements and domestic public services occurs when restrictive trade model meets an open system of public service provision.
• After recapping the main arguments regarding the use of soft law, Dr Mariolina Eliantonio explained a research gap when it comes to identifying the role played by soft law in the Member States. She then explained the objectives of a recently constituted Jean Monnet Network (SoLAR). This network aims to gain a better understanding of how national administrations and national courts use soft law in their practice. To do so, the project will interview a range of national civil servants and national judges working in the field of environment, competition and state aid, financial regulation and social policy. Mariolina hightlighted some challenges that this research faces, especially the lack of responses from practitioners and the difficulty to make full sense of the answers in the light of very different procedural and judicial cultures among EU member states.

The second session entitled Times of Changes, Times of Experimentation (chair: Professor Hofmann – Luxembourg) featured presentations by Dr Carlo Colombo (Tilburg – The Advent of the Collaborative State and the Transformation of Administrative Law), Dr Emilie Chevallier (Limoges – Comparing Public Law in the Field of Social Rights – In Search of Purpose and Pathways), Dr Mary Guy (Lancaster – Sectoral Regulation in Dutch and English Healthcare – Challenges and Opportunities in Changing Times) and Dr Akis Psygkas (Bristol – The EU as a Promoter of Regulatory Democracy – A Bottom-up Approach).

• Against a background of rising collaborative governance, Dr Carlo Colombo explained his interdisciplinary research (carried out with a team of two other researchers), where law, management and politics are overlapping. As increasingly complex social and economic issues that affect metropolitan and urban areas transgress the administrative boundaries of municipal governments, city-regions emerge as alternative level of governance to provide solutions. However, these solutions are often relying on hybrid techniques, involving public and private actors, competition and networks, and a range of different legal techniques borrowed from public and private law. Therefore, questions of legitimacy and transferability of different hybrid forms of governance at city-regional level arise. By engaging with non-academic partners from four city-regions in Europe (Brainport Eindhoven; Berlin; Copenhagen-Malmö; Zurich), the research seeks to develop a better understanding of how traditional public values are protected when public and private actors engage together in city-regional governance structures.
• Dr Emile Chevalier seeks to assess the current trends of promoting housing rights within the EU and under different jurisdictions (France, Spain, and Scotland). She highlights that despite a range of common features (eg: importance of the notion of dignity; obligation to provide decent housing as an obligation of means not of result; wide legislative freedom and sensitiveness of judicial intervention), key differences can be identified in the development of judicial remedies, the degree of coordination of public authorities in this field and the different levels of practical enforcement. This leads Emilie to ask whether the recognition of “subsidiarity” in the implementation of housing rights would not be required.
• Dr Mary Guy’s research compares the Dutch and English healthcare systems, the first representing a Bismarck social insurance model and based on mandatory private heath insurance, and the second a Beveridge taxation-funded system. She first recapped the main changes that have occurred in both national systems over the last five years. She then explained how her research focus developed from an analysis of introducing competition within these different healthcare systems, in particular the growing reliance on independent agencies (such as sectoral regulators and competition authorities), to the overall set of relationships between regulator and Department, for focusing now on the evolving role of ministerial oversight in healthcare. (for further developments: see here)
• In his presentation, Dr Akis Psygkas explored how public consultations undertaken in the telecommunications sector enhanced the involvement of stakeholders in regulatory policy-making in such a way that the gap between public authorities making decisions and the addressees of these decisions is reduced. He used quantitative methods to map more than 8,000 consultation responses as well as interviews with regulators (in France, the UK and Greece), economic actors and consumer organisations. His research suggests that the decentralized EU regulatory structure may promote experimentation, innovation, and policy exchange between the member states. It further puts forth a proposal that harnesses the accountability benefits of the EU architecture by tapping into the member states’ institutional creativity and incrementally incorporating further EU-level requirements through a system of feedback loops.

The third session (chair: Professor Racca – Turin) featured the key note speech (“The Future of Public Law”) given by Professor Birkinshaw (Hull), discussed by Professor Hofmann (Luxembourg). After recalling the key points to be taken away from “parliamentary sovereignty” and the Miller case, Professor Birkinshaw explored how “public law” has become a multi-facetted concept after dramatic changes over the last forty years in the UK. EU membership had indeed transformed the discourse around public law: key ideas such as a new judicial attitude towards complying with the “constitution”, the public/private interfaces, transparency, equality and non-discrimination, national security have taken a new importance. While the American ideas had been influential before 1973, they may soon become more prominent again in the UK. In these changing times of Brexit, the need to educating citizens in civil life becomes crucial. Professor Hofmann continued on the theme of the future of public law by clarifying large trends which will prevail with or without the impact of Brexit. Definitions of basic public law concepts will remain. Equally, the idea of multi-level public law structures might become less visible in the UK after Brexit but will be strengthened in the EU. In any case, they cannot be suppressed. UK public law will be confronted in multiple ways by the fact that Public International Law and administrative law are becoming more and more linked in ways which include data and information law, tax law, risk regulation, environmental protection and all matters relating to trade in goods and services. In broader terms, the influence of information in public law, is the big theme that will be influencing public law in the future. This will touch exercise of delegated powers, regulatory governance, legislative acts, and all kinds of service related regulatory matters. In this development, it will be important to ensure inclusive structures and not just to seek technocratic excellence. Social cohesion must be taken into account again more, as a goal of public policy structures. Social cohesion and protection of the citizens by an independent judiciary are in this context more important than ever.

The fourth session (chair: Professor Cane – Cambridge) entitled Time of Crises : Can the Hidden Potentialities Be Unlocked? featured presentations by Oliver Butler (Cambridge – The Public-Private Divide in UK Data Protection Law – Engagement during and after Brexit), Dr Marleen Zouteweij (Fribourg – Promoting Circular Movement – A Vicious Circle), Dr Liesbeth Todts (Antwerp – Freedom-restricting Public Order Powers in Belgian Administrative Law – Challenges and Opportunities of Engaging with Administrative and Criminal Authorities) and Dr Nikos Skoutaris (UEA – State-Region Relations at the Time of the Euro-Crisis).

• Based on a historical approach, Oliver Butler suggested a four-types model for mapping the tensions between the public and the private in UK information law: 1) individual approach; 2) market approach; 3) state-facilitative approach; 4) state-restrictive approach. He suggests that this could provide a useful tool to understand further legal changes in this field. Currently, different aspects of data protection match more or less closely part of these models. This could also apply to the regulation of data transfer to third countries. After Brexit, although there will be more flexibility for a divergent national approach in the UK, EU data protection will remain highly influential and processes of Europeanisation in data protection, though complicated, will not stop. (for further developments, see here).
• Dr Margarite Zouteweij showed the piecemeal development of labor protection across various groups of migrants, the most vulnerable among them (ie seasonal workers) being offered the lowest protection overall. She developed a specific interest in one key question: gender discrimination, especially indirect discrimination. Indeed, the migration of labour is often regulated on the assumption that the migrant is a man, moving around with his family. However, women are also migrating and seasonable workers cannot stay long term in a country, which triggers a range of family issues. It is however very complex to formulate policy-recommendations in this area, as both gender issues and labor migration can be very sensitive topics for policy-makers at this point in time.
• Liesbeth Todts suggested that the increasing threat of dangerous situations and situations of threat, such as terror threat, calls for setting more clearly the criteria allowing public bodies to restrict the individual’s right to freedom of movement (eg football stadium ban). She especially sought to develop a general human rights assessment framework, containing the criteria that must be met when freedom-restricting public order powers are imposed. In order to develop this framework, she is developing a comparative research (between Belgium, the Netherlands and the UK) and is actively engaging with non-academic actors in the field of public enforcement law. Yet, two questions arise mainly: (a) how to build trust with non-academic actors to develop further the analysis; (b) how to convince them to use the framework once it will be developed.
• Dr Nikos Skoutaris explained how his research on fiscal federalism led him to analyse the tension between (a) the limited taxation powers of regional governments and (b) their extended power to spend money. His argument is that the European and domestic measures taken to handle the financial crisis had a centralisation effect, meaning that the state “centre” regained powers that had been slowly devolved to sub-regional governments in the past. In this regard, his current research has two parts. The first part seeks to trace the migration of a constitutional idea (the golden rule) in a series of jurisdictions. The mechanisms developed to implement the golden rule and to monitor the public deficit have a centralizing effect in (quasi-)federal states, reducing the fiscal autonomy of sub-national entities. The second part analyses how these mechanisms affect the development of independent mouvments across Europe (eg Scotland, Spain). In this respect, centralisation is quelled. (see further blog here)

The last panel (chair : Dr Panara – John Moore Liverpool) entitled Perspectives from Non-Academic Actors featured presentations by Mr Louis Dutheillet de Lamothe (French Conseil d’Etat, Maître des requêtes) and Mr Miguel Tell Cremades (European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs – DG internal policies).

• Mr Dutheillet explained the drastic evolution that the French Conseil d’Etat has been through in recent times. Thanks to the impulsion of key members (such as the Vice-President, Mr Jean-Marc Sauvé and the President of the Section du Contentieux, Mr Bernard Stirn), a new unit dedicated to comparative law has been set up. Currently, the most important cases (ie app. 30 a year) are decided upon after a comparative analysis has been undertaken. This analysis is not made public but it is shared internally and can be recapped in the conclusions of the “advocate general” (rapporteur public). In practice, comparative law can be used in four different ways. First, it can be used to provide solutions to procedural questions. It can show to the administrative judge how a range of other countries solve specific issues and help it decide to align its solutions to broadly accepted practices. Secondly, comparative studies help in assessing facts and in pinpointing the existence (or lack) of consensus on societal matters. Thirdly, comparative law is used when there is a need to interpret European legislation. Fourthly, comparative law helps to have a better understanding of a legal issue before deciding.
• Mr Tell Cremades highlighted very strongly the lack of systematic research undertaken on the use of comparative law by the European Parliament and the European Commission (especially ex ante – before regulations or directives are adopted). The inter-institutional agreement on rule-making for instance does not mention comparative studies as a compulsory or facultative step. Indeed, comparative studies are expensive and not systematic by any means. However, the European Parliament produces such comparative studies to a relatively large extent. Most of them are available here. They trigger key questions such as the definition of the scope of countries to be covered, the methodology, the terms of reference or the time frame.

In his conclusions, Professor Bell brought together the key themes of the conference: (1) the future of public law (between Europe and the USA); (2) comparative public law as a means to understand one’s system better; (3) the underlying values of public law (especially the essential features of human life; security; solidarity in the provision of a range of services). Developing a research agenda in comparative public law requires to look at three methodological questions: (1) what do we want to study ; (2) what/why do we try to do ; (3) how do we go about it. In trying to outline answers to these questions, we can better grasp some of the deep transformations going on in public law today. First, it is no longer enough to analyse judicial decisions. The functioning of a range of practices (eg soft law), techniques (eg compensation), procedures (eg. ombudsman complaints) or bodies (eg NGOs) required sustained analysis to make sense of what is going on in public law. Secondly, there is a key challenge to try to categorise, structure, systematize what is going on on the ground. How can we really know when legal rules apply/when they have developed? Thirdly, all these questions are arising at the crossroad between policy fields and (non-) legal disciplines. It is no longer enough to know one little corner of the law. Collaboration and networks of researchers are needed to combine forces to shape the relevant questions, collect cutting edge information and provide a more fully-fledged and detailed analysis of the complex world we live in. All these steps are not necessarily linear. Feedback loops and readjustments are required on an on-going basis to uncover blind spots.

From this conference emerges a very rich picture of the approaches taken by researchers to develop comparative public law research and engage with non-academic actors. Public law in general, and comparative public law in Europe especially, is surely going through testing times. As it touches fundamental aspects of human life (such as individual freedom, non-discrimination, care and education), public law is more than ever a fascinating discipline to work with: it will keep finding ways to raise to today and tomorrow challenges!