Comparative public law in Europe
Administrative sanctions are flexible, variegated and less costly tools of law enforcement if compared to criminal sanctions. Due to these qualities, administrative sanctions abound in contemporary European legal systems. But how and when did the proliferation of these sanctions come to pass? Casting a look at the ‘usual suspects’ of European comparative law – German, French and British legal systems – reveals that the development of this legal tool that is indispensable for achieving regulatory compliance has taken very divergent trajectories. More precisely, as this comparative overview will demonstrate, a legal system may go down the centripetal (German system), centrifugal (French system) or introspective (British system) paths.
The German approach may be termed as ‘centripetal’ because this system managed to develop a well-calibrated system of administrative punishment that was authoritative enough to, firstly, spill over onto the supranational level and subsequently influence other European legal systems. Such an elaborate system and its wide outreach did not come ex nihilo and took ages to mature: early manifestations of administrative punishment can be traced back to 16th-17th centuries, when police ordinances (Polizeiordnungen) was a popular tool for enforcing public order in non-unified Germany. Later centuries were marked by a very lively academic discussion on the nature of administrative sanctions by German scholars started by criminal jurists such as P.A. Feuerbach and K. Binding in the 18th century and continued by administrativists such as J.P. Goldschmidt, O. Mayer, E. Schmidt and others in the 20th century. This rich academic discussion finally culminated in two path breaking post-war codifications; namely, the Criminal Economic Law of 1949 (Wirtschaftsstrafgesetz) and the Code of Administrative Offences of 1952 (Ordnundgswidrigkeitengesetz). The latter one was drafted closely following the principles laid down in the German Criminal Code meaning that the whole system was based on the ‘parapenal’ model. This system subsequently went through a constitutional scrutiny undertaken by the German Constitutional Court, and was thus (firstly) verified and validated on the domestic level. The comprehensive check on the constitutionality has led (or, at least, significantly contributed) to the system’s acceptance on the supranational level: the European Court of Human Rights (ECtHR) in landmark Öztürk and Lutz cases in the 1990s gave its ‘conceptual blessing’ to the German system in the guise of Ordnungswidrigkeiten (administrative offences). Hence, a rigorous work on the domestic level fuelled by a wide-reaching academic debate worked as a centripetal force and influenced the supranational level.
The opposite trend is discernible from the French experience: although also boasting a long history of administrative sanctions, this legal system did not take the codified approach to administrative punishment. Instead, administrative sanctions thrived outside codified legislation in fragmented fields of regulation and were the fruit of a “continuous dialogue between constitutional, administrative and European judges”. In sharp contrast with the German system, the French system yielded to the ‘centrifugal’ forces, i.e. the concept of administrative sanctions trickled down on the domestic legal system from the supranational level. More precisely, right after the ECtHR legitimated the use of administrative sanctions in relation to the Convention, the Conseil Constitutionnel followed suit and dispersed the constitutional doubts that had been precluding the wider use of administrative sanctions in this system for decades (especially – their compatibility with the separation of powers doctrine). It was highlighted in French constitutional case law that no general conflict with the constitutional principles exists as long as public authorities impose sanctions within the limits of what is considered necessary for the achievement of the goals set in the relevant legal provisions (dans le mesure nécessaire) and apply sufficient procedural safeguards, the so-called rights of the defence that are of paramount importance in the French administrative tradition (droits de la défense).
Finally, the British system has chosen its own way within the field of administrative sanctioning based on ‘introspection’. But the ‘teething pains’ were no lesser: the rather late emergence of administrative law, blurred lines between private and public law and a ‘hotchpotch’ of regulations relating to administrative bodies resulted in the system’s overreliance on the criminal law in order to respond to regulatory offences. Since regulatory law and its attendant sanctions were subsumed under criminal law, the British system was also not confronted with ‘à la Öztürk’ problem, i.e. the application of differentiated procedural guarantees in relation to administrative punitive measures that the German and French systems had to navigate through. Nonetheless, the pressure to introduce regulatory sanctions independent from criminal law came from within: the path breaking report by the British Section of the International Commission of Jurists (Justice) of 1980 noted that (over)reliance on criminal law is capable of making everyone a criminal and that people no longer want that. Hence, the first impetus towards decriminalisation was given and took a more concrete shape after two more reports were issued decades later: The Hampton Review of 2005 commissioned by the Treasury and the Macrory Report of 2006 commissioned by the Cabinet Office. These reports favoured a wider use of civil sanctions in cases of regulatory breaches and morphed into the Regulatory Enforcement and Sanctions Act of 2008 that introduced a diversified and more flexible range of sanctions that British administrative authorities may impose. It can thus be claimed that even though this system refused to recognize administrative sanctions as its integral part, it finally came to a realization of the indispensability of this legal instrument and operationalized its use in order to strengthen the regulatory compliance. However, unlike other systems discussed above that were purposefully moving towards the codification of this legal tool – be it by means of centripetal or centrifugal forces – the British system has achieved reforms relevant to administrative sanctions mostly from within when the necessity for this legal tool was conceived in the public mind. Of course – timely proximity to the general decriminalization movement in Europe caused by the rise of automobilism and the need to account for numerous breaches committed therein as well as comparative insights into other European legal systems quoted in the said Justice report leads to a claim that this development was not completely insular from the legal trends happening elsewhere. Here again comparative law teaches us a lesson that everything is intertwined and no legal system ‘is entire of itself’.
Posted by Agnė Andrijauskaitė, Doctoral researcher at the German University of Administrative Sciences Speyer and Vilnius University.
 Portuguese, Italian and Romanian systems of administrative punishment use German Ordnundgswidrigkeitengesetz as a matrix, see C.E. Paliero, “The Definition of Administrative Sanctions – General Reports”, in: O. Jansen (ed.), Administrative Sanctions in the European Union (Cambridge, Antwerp, Portland: Intersentia, 2013), pp. 1–35.
 J. P. Goldschmidt, Das Verwaltungsstrafrecht (Berlin: Carl Heymanns Verlag, 1902), p. 70.
 See the long line of cases of the German Constitutional Court enlisted in J. Schwarze, “Judicial Review of European Administrative Procedure” (2004) 68 Law and Contemporary Problems, p. 104 [n. 107].
 This can be inferred from direct references of the ECtHR to the case law of the German Constitutional Court. See cases of Öztürk v Germany [8544/79] 21 February 1984 ECtHR and Lutz v Germany [9912/82] 25 August 1987.
 J. P. Goldschmidt, Das Verwaltungsstrafrecht, pp. 1–13.
 J. M. Sauvé, La motivation des sanctions administratives, at http://www.dijon.tribunal-administratif.fr/Actualites/Discours-Interventions/La-motivation-des-sanctions-administratives, p. 6.
 See Decisions of Conseil Constitutionnel No. 88-248 of 17 January 1989 and No. 89-260 of 28 July 1989.
 M. Fromont, “A Typology of Administrative Law in Europe”, in: A. von Bogdandy/P.M. Huber/S. Cassese (eds.), The Max Planck Handbooks in European Public Law: The Administrative State (Vol. 1) (Oxford: Oxford University Press), pp. 597–599.
 J. McEldowney, “Country Analysis – United Kingdom”, in: O. Jansen (ed.), Administrative Sanctions in the European Union (Cambridge, Antwerp, Portland: Intersentia, 2013), p. 589.
 L.H. Leigh, “United Kingdom: The system of administrative and penal systems”, in: European Commission (ed.), The System of Administrative and Penal Sanctions in the Member States of the European Communities. Volume I – National Reports (Luxembourg: Office for Official Publications of the European Communities, 1994), p. 359.
 British Section of the International Commission of Jurists (Justice), Breaking the Rules: The Problem of Crimes and Contraventions (London: Justice, 1980), p. 1.
 See P. Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement (HM Treasury, 2005) and R. Macrory, Regulatory Justice: Making Sanctions Effective Final Report (Cabinet Office, 2006).