Comparative public law in Europe
Laura Hering, Fehlerfolgen im europäischen Eigenverwaltungsrecht. Heilung und Unbeachtlichkeit in rechtsvergleichender Perspektive, Springer, Heidelberg 2019, 343 pages, ISBN 9783662593677.
The field of European Union (EU) direct administration has witnessed an expansion and differentiation in recent years. This is shown for example by EU laws on bank supervision and migration, as well as the progressive creation of EU offices and agencies. As the Union’s procedures have become more complex, the number of potential sources of procedural errors has also risen. As is inevitable, an increase in the number of sources where mistakes can occur means that fewer procedures are being carried out flawlessly. As a result, EU courts have to deal more and more frequently with procedural and formal defects and the question of what consequences these entail for the administrative decisions concerned. That question in turn leads to another: whether an administrative decision that contains a procedural or formal error has to be quashed without exception, or if strict compliance with the law can be waived under certain circumstances. Is it appropriate to annul an administrative decision that is flawed by a procedural or formal error, even if its material outcome is correct? Should there be a possibility to ‘cure’ the procedural or formal error under certain circumstances? Might it even be possible for an error to be inconsequential under certain conditions?
The answers to these questions are not only interesting from a positive legal standpoint but also in terms of legal policy: on the one hand, it stands to reason that the violation of a provision relating to procedure or form cannot be treated like a substantive legal error, which in many legal orders calls into question the legality of the act during judicial proceedings and leads to its quashing. As far as can be ascertained, there is no legal system where every error relating to procedure or form leads to the annulment of the final decision without exception. The reason for this is twofold: First, because of the growing complexity of administrative proceedings, they are progressively susceptible to errors. Secondly, affected parties can and often do use technical procedural questions to dodge burdensome administrative decisions or slow down inconvenient administrative proceedings. If the violation of a provision relating to procedure or form would always and inevitably lead to the annulment of the administrative decision, the effective realisation of administrative procedures would be endangered. In order for the judicial sanctioning of procedural and formal defects not to become an impediment to administrative proceedings, it is necessary to allow violations of provisions relating to procedure or form to be treated as inconsequential under appropriate circumstances. On the other hand, it is a core function of administrative procedures to strengthen the legitimacy of the EU administration and to accept the outcome of its procedures. They can serve as a counter-balance to the challenge that the administration lacks democratic legitimacy. If violations of a provision relating to procedure or form are handled with too much pragmatism — i.e. are too readily declared to be inconsequential, and are not sufficiently sanctioned by annulling the affected act — this might weaken trust in the EU institutions. Therefore, procedural law in general, and the consequences procedural defects entail in particular, have to be construed in a manner that procedural justice and the legal rights of individuals to protection are reconciled with the requirements of an effective and efficient administration.
In light of the foregoing, a progressive and forward-looking European administration needs appropriate mechanisms for dealing with errors. Practical reasons dictate that procedural and formal errors need not always lead to the annulment of a decision, but can be immaterial in a certain way. Especially in view of the fact that errors cannot be completely avoided when the administration takes complex decisions, it is necessary to refrain from an unduly strict implementation of procedural law. It must be possible to cure or even tolerate procedural errors under certain circumstances, and it is this function that the legal concepts of ‘rectification and irrelevance’ (Heilung und Unbeachtlichkeit) serve. However, EU law has not yet fully and systematically addressed the issue of the consequences of procedural and formal errors in general, nor the ‘rectification and irrelevance’ in particular. In the recent debate on the enactment of an EU law of direct administrative procedure, which has been taking place both in academic and inter-institutional settings, neither the model law on EU administrative procedural law published in 2014 by a network of European lawyers and practitioners (Research Network on EU Administrative Law – ReNEUAL), nor the draft presented by the Working Group on Administrative Law to the Legal Affairs Committee of the European Parliament (which is recognisably based on the model law of the ReNEUAL project) contain a regulatory proposal for a European ‘doctrine on the consequences of errors’ (Fehlerfolgenlehre).
Against this background, this doctoral thesis explores the legal concepts of ‘rectification’ and ‘irrelevance’ of procedural and formal errors in EU direct administrative procedures, and proposes a model rule for inclusion in a future law on EU direct administrative procedure. It first analyses and systematises the jurisprudence of the EU courts on the legal concepts of rectification and irrelevance of procedural and formal errors. As neither primary nor secondary EU law sources contain many guidelines on how to deal with procedural defects — Article 263(2) Treaty on the Functioning of the European Union (TFEU) only stipulates that the ‘infringement of an essential procedural requirement’ is a cause of action that can lead the act to be declared void — it has been left to the jurisprudence of the EU courts to design a regime that goes beyond the procedural consequences specified by Article 263(2) TFEU. The study proceeds with an analysis of the legal instruments of ‘rectification’ and ‘irrelevance’ in the light of EU primary law, in particular a number of general principles. This is because the consequences procedural defects entail can only be understood by considering in context the entirety of the EU administrative law framework. They cannot be grasped in isolation, as they have to seamlessly fit into the bigger picture. Furthermore, the book explores the legal concepts of ‘rectification’ and ‘irrelevance’ from a comparative law perspective. First it analyses the concepts in the legal systems of Germany, Italy, France and England and Wales. It then compares them with their counterparts in the EU system of direct administration. The legal comparison with the member state administrative systems shows — despite differences in detail — that even though the EU courts have not adopted any single system in use in a member state, they often use similar criteria to decide whether a procedural or formal defect leads to the annulment of the final decision or not. The study concludes by proposing a model rule on the ‘rectification’ and ‘irrelevance’ that could feature in a future law on EU direct administrative procedure.
* Dr. iur. LL.M (Bruges), since July 2018 at the Max-Planck Institute for comparative public law and international Law. This piece is also published in the German Yearbook of International Law.
 Rainer Wahl, ‘Das Verhältnis von Verwaltungsverfahren und Verwaltungsprozessrecht in europäischer Sicht’, 118 Deutsches Verwaltungsblatt (2003) 1285, at 1292.
 Eberhard Schmidt-Aßmann, ‘Conclusions’, in Matthias Ruffert (ed.), The Model Rules on EU Administrative Procedures: Adjudication (2016) 195, at 196.
 European Parliament, Proposal for a regulation of the European Parliament and of the Council on the Administrative Procedure of the European Union’s institutions, bodies, offices and agencies, available at https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/JURI/DV/2016/01-28/1081253EN.pdf.
 Consolidated version of the Treaty on the Functioning of the European Union 2009, OJ 2016 C 202/47.