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SABINO CASSESE
FOUR FEATURES OF THE EUROPEAN
ADMINISTRATIVE SPACE
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ABSTRACT
Prof. Sabino Cassese
This article focuses on four features of the European administrative space and
compare them with domestic administrative orders:
1. while domestic administrations depend on one centre - the president or the
cabinet - the European administration has not just one centre of power;
2. while domestic administrations have exclusive powers of implementation, the
European administration is not the only implementing authority of the EU;
3. while domestic administrative law is binomial (there are relations between two
poles, the executive and a private party), European administrative law is trinomial
(there are relations among the European Commission, national administrations
and private parties, and each may play multiple roles);
4. while domestic administrative law is usually a privileged branch of law, full of
executive prerogatives, in European administrative law the administration does
not generally enjoy special rights and privileges.
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Table of contents:
1. Introduction
2. The location of the executive power
3. A direct, unbroken chain of command?
4. Case C-8/88 and the responsibility of the national administrations to ensure
observance of the European rules
5. Polycentric adjudication
6. The Intermills case
7. A whole body of special rights, privileges or prerogatives?
Paper for the Connex thematic conference “Towards a European Administrative
Space”, Birbeck College, University of London, 16-18 November 2006
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1. Introduction
I shall focus on four important features of the European administrative space and
compare them with domestic administrative orders:
5. while domestic administrations depend on one centre - the president or the
cabinet - the European administration has not just one centre of power;
6. while domestic administrations have exclusive powers of implementation, the
European administration is not the only implementing authority of the EU;
7. while domestic administrative law is binomial (there are relations between two
poles, the executive and a private party), European administrative law is trinomial
(there are relations among the European Commission, national administrations
and private parties, and each may play multiple roles);
8. while domestic administrative law is usually a privileged branch of law, full of
executive prerogatives, in European administrative law the administration does
not generally enjoy special rights and privileges.
2. The location of the executive power
National States grow out of executive power. Legislative and judicial bodies are
subsequent additions (for example, in England there was a King; subsequently, in 1688, the
Glorious Revolution led to the recognition of the Parliament’s supremacy). The executive -
the president or the cabinet - is the sole centre of implementing power. There may be more
then one legislative body (two chambers) and more than just one judiciary (as in countries
with a dualistic system of courts). But there is only one executive (where there are regional
governments, they are subordinate to a central executive power).
Where is the executive power located in the EU?
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Let me read Article 202 of the EC Treaty: “to ensure that the objectives
set out in this Treaty are attained the Council shall, in accordance with
the provisions of this Treaty:
ensure coordination of the general economic policies of the Member
States,
have power to take decisions,
confer on the Commission, in the acts which the Council adopts,
powers for the implementation of the rules which the Council lays
down. The Council may impose certain requirements in respect of the
exercise of these powers. The Council may also reserve the right, in
specific cases, to exercise directly implementing powers itself. The
procedures referred to above must be consonant with principles and
rules to be laid down in advance by the Council, acting unanimously on
a proposal from the Commission and after obtaining the opinion of the
European Parliament.”
Compare the provision that the Council shall confer on the Commission the power to
implement the rules with art. II, sect.1 of the American Constitution, which provides: “the
executive power shall be vested in a President of the United States of America.”
Article. 211 of the EC Treaty provides: “in order to ensure the proper
functioning and development of the common market, the Commission
shall:
- ensure that the provisions of this Treaty and the measures taken by the
institutions pursuant thereto are applied,
- formulate recommendations or deliver opinions on matters dealt with
in this Treaty, if it expressly so provides or if the Commission considers
it necessary,
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- have its own power of decision and participate in the shaping of
measures taken by the Council and by the European Parliament in the
manner provided for in this Treaty,
- exercise the powers conferred on it by the Council for the
implementation of the rules laid down by the latter.”
From these provisions it follows that:
a. unlike domestic law, in European law there is no – one branch of government
entrusted with the task of implementing the rules;
b. two bodies, the Council and the Commission, exercise implementing power;
c. implementing power is nomadic, as the Council can confer such power on the
Commission or reserve it for itself;
d. the implementing power is not conferred upon the Commission by the EC
Treaty, but by the Council, on an ad hoc basis;
e. when the implementing power is conferred on the Commission, this body
must follow the requirements established by the Council.
It is important to note that the Council is an intergovernmental body, while only the
Commission is a purely European - that is supranational - authority.
Article 203 of the EC Treaty provides that: “the Council shall consist of
a representative of each Member State at ministerial level, authorised to
commit the government of that Member State. The office of President shall be
held in turn by each Member State in the Council for a term of six months in
the order decided by the Council acting unanimously.” For this reason, the
Council is a body “à geometrie variable.”
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Article 213. 1 and 2 provides: “the Commission shall consist of 20
Members, who shall be chosen on the grounds of their general competence
and whose independence is beyond doubt. The number of Members of the
Commission may be altered by the Council, acting unanimously. Only
nationals of Member States may be Members of the Commission. The
Commission must include at least one national of each of the Member States,
but may not include more than two Members having the nationality of the
same State. The Members of the Commission shall, in the general interest of
the Community, be completely independent in the performance of their duties.
In the performance of these duties, they shall neither seek nor take instructions
from any Government or from any other body. They shall refrain from any
action incompatible with their duties. Each Member State undertakes to
respect this principle and not to seek to influence the Members of the
Commission in the performance of their tasks. The Members of the
Commission may not, during their term of office, engage in any other
occupation, whether gainful or not. When entering upon their duties they shall
give a solemn undertaking that, both during and after their term of office, they
will respect the obligations arising there from and in particular their duty to
behave with integrity and discretion as regards the acceptance, after they have
ceased to hold office, of certain appointments or benefits. In the event of any
breach of these obligations, the Court of Justice may, on application by the
Council or the Commission, rule that the Member concerned be, according to
the circumstances, either compulsorily retired in accordance with Article 216
or deprived of his right to a pension or other benefits in its stead.”
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Article 214. 2 of the EC Treaty provides: “the Council, meeting in the
composition of Heads of State or Government and acting by a qualified
majority, shall nominate the person it intends to appoint as President of the
Commission; the nomination shall be approved by the European Parliament.
The Council, acting by a qualified majority and by common accord with the
nominee for President, shall adopt the list of the other persons whom it intends
to appoint as Members of the Commission, drawn up in accordance with the
proposals made by each Member State. The President and the other Members
of the Commission thus nominated shall be subject as a body to a vote of
approval by the European Parliament. After approval by the European
Parliament, the President and the other Members of the Commission shall be
appointed by the Council, acting by a qualified majority.”
One can draw two conclusions from these provisions:
a. the European executive has two “heads”;
b. there is a great difference between these two heads; the Council is an
intergovernmental body, while the Commission is a purely European
institution.
3. A direct, unbroken chain of command?
Inside the States, the administration usually has an exclusive power of
implementation. There is, therefore, an unbroken, direct chain of command which goes from
the President or the Cabinet to the bottom of the pyramid, as in the following passage from
one of the most important contributions of the “father” of British administrative law,
William A. Robson, Administrative Law, in M. Ginsberg (ed.), Law and Opinion in
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England in the 20th
Century, London, Stevens & Sons, 1959, p. 201-202 . “In case anyone
should imagine that an understanding of the proper nature and scope of administrative law
is a matter of academic interest only, I will recall an extraordinary incident which occurred
in 1942 during a secret session of Parliament. Mr. Winston Churchill (as he then was) was
explaining to an uneasy House of Commons why the Allied forces which had invaded
French North Africa had accepted the services of Admiral Darlan, who was closely
associated with the Vichy régime, and generally believed to be hostile to the Allied cause.
The Prime Minister told the Commons that the actions of many French officers and officials
were governed in times of stress and strain by a principle founded on droit administratif.
This highly legalistic attitude, he said, made their actions depend on the existence of a
direct, unbroken chain of lawful command linking those who wield power at any time with
those who previously were clothed with lawful authority. The French soldiers in the North
African theatre of war had joined forces with the Allied troops against the German and
Italian forces in accordance with the orders and authority issued by or declared to emanate
from Marshal Pétain. This, said Mr Churchill, was the justification for our using Darlan.
Even in a country which has never understood administrative law it was astonishing that the
Prime Minister should confuse droit administratif with legalité.”
Quite different is the picture of the implementing structure in the EU.
Article 10. 1 of the EC Treaty provides: “member States shall
take all appropriate measures, whether general or particular, to ensure
fulfilment of the obligations arising out of this Treaty or resulting from
action taken by the institutions of the Community. They shall facilitate
the achievement of the Community's tasks.”
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Article 5.2 of the EC Treaty provides that “in areas which do not
fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as
the objectives of the proposed action cannot be sufficiently achieved by
the Member States and can therefore, by reason of the scale or effects
of the proposed action, be better achieved by the Community.”
Declaration n. 43 annexed to the Amsterdam treaty provides that
“the High Contracting Parties confirm, on the one hand, the
Declaration on the implementation of Community law annexed to the
Final Act of the Treaty on European Union and, on the other, the
conclusions of the Essen European Council stating that the
administrative implementation of Community law shall in principle be
the responsibility of the Member States in accordance with their
constitutional arrangements. This shall not affect the supervisory,
monitoring and implementing powers of the Community Institutions as
provided under Articles 202 and 211 of the Treaty establishing the
European Community.”
Therefore:
a. domestic administrations must facilitate and implement European law;
b. the European administration has the power to implement European law only if the
scale or the effects of the proposed action makes State powers insufficient. The
implementing power of the EU is consequently residual and not monopolistic;
c. domestic administration is top-down; European administration is, by contrast,
bottom-up.
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4. Case C-8/88 and the responsibility of the national administrations to ensure
observance of the European rules
I now turn to Case C-8/88 (Federal Republic of Germany v. Commission [1990] ECR
I-0232), which considers the problem of national administrations as implementers of
European measures.
The main purpose of the European common agricultural policy is to adjust the supply
of food to the market requirements and to ensure a fair standard of living for the agricultural
community. For this purpose, European law provides for aid for not producing (for instance,
for setting land aside), for private storage and for the slaughter of sheep. The aid is granted
to national authorities, which pay premiums to lamb producers and pay premiums for the
maintenance of cow herds.
The European Commission had discovered that three German Länder had not
established procedures to check the use of the aids granted and the following question arose:
if European regulations do not establish an explicit obligation to supervise and inspect, are
domestic administrations still required to supervise and inspect the implementation of the
European Commission’s measures?
While the German government argued that this was an additional obligation that
could not be imposed upon the Member States, the CJ concluded that:
a. domestic administrations must set up comprehensive administrative checks in
order to guarantee the proper observance of the conditions for the grant of the
premiums;
b. all the Member States’ authorities are required to ensure observance of the
rules of Community law.
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It is important to note that the CJ reached these conclusions on the basis of the theory
of the implied powers (n. 16) and the principle of loyal cooperation (art. 10 of the EC
Treaty) (n. 20). The theory of implied powers, originally developed in American and
English law and later recognized in international law as well, was used by the CJ in its
narrow sense (the existence of a given power implies the existence of any other power
which is reasonably necessary for its exercise).
5. Polycentric adjudication
Domestic administrative law is centred on the relations between the administration
and private citizens. It is, therefore, binomial. Read A.V. Dicey, Introduction to the study of
the law of the constitution, X ed., London, MacMillan, 1961, p. 332-333 : “Droit
administratif, or ‘administrative law’, has been defined by French authorities in general
terms as ‘the body of rules which regulate the relations of the administration or of the
administrative authority towards private citizens’; and Aucoc in his work on droit
administratif describes his topic in this very general language: ‘Administrative law
determins the constitution and the relations of those organs of society which are charged
with the care of those interests (intérêts collectifs) which are the object of public
administration, by which term is meant the different representatives of society among which
the State is the most important, and the relation of the administrative authorities towards
the citizens of the State.”.
Again, European administrative law is different.
Take as an example Article 87. 1 of the EC Treaty: “save as otherwise
provided in this Treaty, any aid granted by a Member State or through State
resources in any form whatsoever which distorts or threatens to distort
competition by favouring certain undertakings or the production of certain
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goods shall, in so far as it affects trade between Member States, be
incompatible with the common market.”
Article 88. 1 and 2 of the EC Treaty provides :“the Commission shall,
in cooperation with Member States, keep under constant review all systems of
aid existing in those States. It shall propose to the latter any appropriate
measures required by the progressive development or by the functioning of the
common market. 2. If, after giving notice to the parties concerned to submit
their comments, the Commission finds that aid granted by a State or through
State resources is not compatible with the common market having regard to
Article 87, or that such aid is being misused, it shall decide that the State
concerned shall abolish or alter such aid within a period of time to be
determined by the Commission. If the State concerned does not comply with
this decision within the prescribed time, the Commission or any other
interested State may, in derogation from the provisions of Articles 226 and
227, refer the matter to the Court of Justice direct.”
Here there are not just two players, the administration and the private party. On the
contrary, there are:
a. the European Commission, acting as the guardian of competition;
b. one national government, as the grantor of the aid;
c. a private party that has benefited of the aid, as grantee;
d. other interested States;
e. other interested parties.
This multiplicity of players generates “polycentric adjudication” processes, as
defined by L. L. Fuller in his “The Forms and Limits of Adjudication” (1957 - 1978), in
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Harvard Law Review, vol. 92, 1978, p. 394-395:“Some months ago a wealthy lady by the
name of Timken died in New York leaving a valuable, but somewhat miscellaneous,
collection of paintings to the Metropolitan Museum and the National Gallery ‘in equal
shares’, her will indicating no particular apportionment. When the will was probated the
judge remarked something to the effect that the parties seemed to be confronted with a real
problem. The attorney for one of the museums spoke up and said, ‘We are good friends. We
will work it out somehow or other’. What makes this problem of effecting an equal division
of the paintings a polycentric task? It lies in the fact that the disposition of any single
painting has implications for the proper disposition of every other painting. If it gets the
Renoir, the Gallery may be less eager for the Cezanne but all the more eager for the
Bellows, etc. If the proper apportionment were set for argument, there would be no clear
issue to which either side could direct its proofs and contentions. Any judge assigned to
hear such an argument would be tempted to assume the role of mediator or to adopt the
classical solution: Let the older brother (here the Metropolitan) divide the estate into what
he regards as equal shares, let the younger brother (the National Gallery) take his pick.
[....] This is a ‘polycentric’ situation because it is ‘many centered’ – each crossing of
strands is a distinct center for distributing tensions.”
6. The Intermills case
A good example of such polycentric adjudication can be found in the Intermills
decision of the Court of Justice (Case C-323/82 Intermills v. Commission [1984], n. 4-5, 15-
19, 38) and in the Council regulation n. 659/1999 of 22 March 1999, Articles 4. 4, 6 and 20.
Article 4.4. of the Council regulation provides: “where the Commission,
after a preliminary examination, finds that doubts are raised as to the
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compatibility with the common market of a notified measure, it shall decide to
initiate proceedings pursuant to Article 93 (2) of the Treaty (hereinafter
referred to as a “decision to initiate the formal investigation procedure”).
Article 6 provides: “Formal investigation procedure - 1. The decision
to initiate the formal investigation procedure shall summarise the relevant
issues of fact and law, shall include a preliminary assessment of the
Commission as to the aid character of the proposed measure and shall set out
the doubts as to its compatibility with the common market. The decision shall
call upon the Member State concerned and upon other interested parties to
submit comments within a prescribed period which shall normally not exceed
one month. In duly justified cases, the Commission may extend the prescribed
period.
2. The comments received shall be submitted to the Member State
concerned. If an interested party so requests, on grounds of potential damage,
its identity shall be with held from the Member State concerned. The Member
State concerned may reply to the comments submitted within a prescribed
period which shall normally not exceed one month. In duly justified cases, the
Commission may extend the prescribed period.”
Article 20 provides: “Rights of interested parties - 1. Any interested
party may submit comments pursuant to Article 6 following a Commission
decision to initiate the formal investigation procedure. Any interested party
which has submitted such comments and any beneficiary of individual aid
shall be sent a copy of the decision taken by the Commission pursuant to
Article 7.
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2. Any interested party may inform the Commission of any alleged
unlawful aid and any alleged misuse of aid. Where the Commission considers
that on the basis of the information in its possession there are insufficient
grounds for taking a view on the case, it shall inform the interested party
thereof. Where the Commission takes a decision on a case concerning the
subject matter of the information supplied, it shall send a copy of that decision
to the interested party.
3. At its request, any interested party shall obtain a copy of any
decision pursuant to Articles 4 and 7, Article 10(3) and Article 11.”(note that
this regulation was adopted well after the Intermills decision).
Let me consider the Intermills case. Intermills, a Belgian company, produced writing
and printing paper and was in a very difficult financial situation. The Walloon region
granted aids to Intermills consisting in low interest loans, repayable advances and the
injection of capital (acquisition of holdings). As a consequence, the bulk production was
abandoned, two factories were closed and the three remaining factories were entrusted to
three different companies with the Walloon region as the controlling share-holder.
The Belgian State failed to promptly notify the European Commission about this aid,
and only did so in 1981. The Commission drew the Belgian government’s attention to its
obligations.
The Commission had initiated the formal investigation procedure and invited the
Belgian government to submit its comments. Three Member States, two trade associations
and one undertaking had objected to the aid. The Commission had decided that the loan did
not distort competition, and was therefore compatible with the EU rules, because it was
linked to an investment programme to reduce bulk production; the acquisition of a holding
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however distorted the competition, because it was not linked to the restructuring of the
undertaking, but was a rescue aid, contrary to Article 87 of the EC Treaty.
Intermills challenged the decision on the grounds of an inaccurate assessment of the
facts and a contradictory and inadequate statement of the reasons.
The CJ reasoned in the following way:
• state aids granted in order to “facilitate the development of certain economic
activity” are compatible with the EC Treaty (art. 87. 3. c);
• the EC Treaty does not distinguish aids by type;
• aids in the form of low interest loans and repayable advances aim at
restructuring the industry and correspond to the objectives of the European
Commission;
• aids granted in form of acquisition of shares could also aim at restructuring the
industry;
• the Commission had not explained why the second type of aid was
incompatible, while the first was compatible;
• therefore, the Commission’s decision was contradictory and insufficiently
reasoned.
Note that:
1. the Commission’s decision was addressed, according to Article
88. 2 and 3 of the EC Treaty, to the national government, but
the private party was individually and directly concerned,
according to Article 230 of the EC Treaty, leading the CJ to
conclude that the application was admissible;
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2. the CJ did not consider an individual notice to be necessary; a
general notice in the Official Journal was sufficient (n. 16 –
17);
3. according to the CJ, the European Commission’s request for
the submission of comments could include negative remarks
and reservations about the plan (n. 21).
The following points must be taken into account:
1. there are many parties concerned by the adjudication procedure: Intermills, the
Walloon regional government, the Belgian government, three Member States, two
trade associations, one undertaking;
2. while the party charged of distorting the competition is the Belgian State (to
which the decision is addressed), Intermills is considered to be directly and
individually concerned (n. 5 of the Intermills decision provides: ”the Commission
does not dispute the admissibility of the application. Although the contested
decision is addressed to the Kingdom of Belgium, the Commission acknowledges
that the applicant is directly and individually concerned, in its capacity as the
recipient of the aid in question, within the meaning of the second paragraph of
Article 173”) to the point that its application to the Court is declared admissible;
3. interested parties include private parties and States: they are all placed on the
same footing (see again Article 6. 1 of the 659/99 regulation);
4. in the Intermills case, Intermills, the Walloon regional government and the
Belgian State were apparently in favour of the aid, while the six other interested
parties objected to it, some of them on the basis that the paper manufacturing was
suffering from over-capacity;
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5. the European proceeding directed towards reviewing the system of State aids
resembles the “interest representation model” seen in domestic administrative law
(R. Stewart, The Reformation of American Administrative Law, in Harvard Law
Review, vol. 88, June 1975, n. 8, p. 1723-1760) “[...] judges have greatly
extended the machinery of traditional model to protect new classes of interests. In
the space of a few years the Supreme Court has largely eliminated the doctrine of
standing as a barrier to challenging agency action in court, and judges have
accorded a wide variety of affected interests the right not only to participate in,
but to force the initiation of, formal proceedings before the agency. Indeed, this
process has gone beyond the mere extension of participation and standing rights,
working a fundamental transformation of the traditional model. Increasingly, the
function of administrative law is not the protection of private autonomy but the
provision of a surrogate political process to ensure the fair representation of a
wide range of affected interests in the process of administrative decision. Whether
this is a coherent or workable aim is an open issue. But there is no denying the
importance of the transformation.” [....] “So long as controversies remained
bipolar in form and character – the citizen versus the government – it remained
possible to conceive of administrative law as a means of resolving the conflicting
claims of governmental power and private autonomy. However, the expansion of
the traditional model to include a broader universe of relevant affected interests
has transformed the structure of administrative litigation and deprived the simple
notion of restraining government power of much of its utility. In multipolar
controversies, demarcation of distinct spheres of governmental and private
competency may no longer be feasible, and the non-assertion of governmental
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authority may be itself a decision among competing interests. [....] Since, in
absence of authoritative rules of decision, the resolution of the conflicting claims
of a large number of competing interests is essentially a political process, a
solution to the problems raised by the transformation of administrative law into a
system of interest representation might better be achieved by a more direct and
explicitly political scheme for securing the representation of all relevant interests
affected by administrative decisionmaking.”
I want to call your attention to two more general points:
1. European actors play multiple roles:
• the European Commission does not just play the role of implementing
authority (Article 211 of the Treaty), but also the role of adjudicating
authority (Article 88 of the Treaty), acting in this last case as an independent
agency;
• the European Court of Justice plays, in the Intermills case, the role of
administrative court, reviewing the legality of State action; but - as we shall
see - it also plays the roles of civil and constitutional court;
• could one say that these multiple roles and the ensuing ambiguities are
connected with the dynamic historical development of the European
constitution?
2. the complexity of European administrative law: European rules on State aid and
competition become a measure of the legality of domestic rules. European law
and domestic law are not separate worlds. They are interlaced.
7. A whole body of special rights, privileges or prerogatives?
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Let me go back to Dicey, and look at French “droit administratif” through British
glasses.
Dicey rejected even the expression “administrative law,” always preferring the
French equivalent “droit administratif” and that he contrasted “droit administratif” with the
“absolute supremacy of the ordinary law of the land” (p. 330). Dicey’s attitude vis-à-vis
“droit administratif” was largely due to the prevalent British reaction to the French
Revolution and Napoleon (“It was from Bonaparte that modern “droit administratif”
received its form,” according to Dicey, p. 336).
According to Dicey, domestic administrative law rests on two main ideas: that the
government possesses special rights and prerogatives, and that questions of administrative
law must be determined not by ordinary courts, but by administrative courts.
Read Dicey, The law of the Constitution, p. 336-340 and p. 388 “Any one who
considers with care the nature of the droit administratif of France, or the topics to which it
applies, will soon discover that it rests, and always has rested, at bottom on two leading
ideas alien to the conceptions of modern Englishmen.
The first of these ideas is that the government, and every servant of the government,
possesses, as representative of the nation, a whole body of special rights, privileges, or
prerogatives as against private citizens, and that the extent of these rights, privileges, or
prerogatives is to be determined on principles different from the considerations which fix
the legal rights and duties of one citizen towards another. An individual in his dealings with
the State does not, according to French ideas, stand on anything like the same footing as
that on which he stands in dealings with his neighbour.
The second of these general ideas is the necessity of maintaining the so-called
‘separation of powers’ (séparation des pouvoirs), or in other words, of preventing the
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government, the legislature, and the courts from encroaching upon one another’s province.
[....] While the ordinary judges ought to be irremovable and thus independent of the
executive, the government and its officials ought (while acting officially) to be independent
of and to a great extent free from the jurisdiction of the ordinary courts. [....] The first of
these characteristics is, as the reader will at once perceive, that the relation of the
government and its officials towards private citizens must be regulated by a body of rules
which are in reality laws, but which may differ considerably from the laws which govern the
relation of one private person to another. This distinction between ordinary law and
administrative law is one which since 1800 has been fully recognised in France, and forms
an essential part of French public law, as it must form a part of the public law of any
country where administrative law in the true sense exists.
The second of these characteristics is that the ordinary judicial tribunals
which determine ordinary questions, whether they be civil or criminal, between man and
man, must, speaking generally, have no concern whatever with matters at issue between a
private person and the State, i.e. with questions of administrative law, but that such
questions, in so far as they form at all matter of litigation (contentieux administratif), must
be determined by administrative courts in some way connected with the government or the
administration. [....] [Napoleon] constitued, or reconstituted, two classes of courts. The one
class consisted of ‘judicial’ or, as we should say, ‘common law’ courts. [....] The other class
of so-called courts were and are the administrative courts, such as the Courts of the
Prefects (Conseil de Préfecture) and the Conseil d’Etat. [....] Droit administratif, in short,
rests upon ideas absolutely foreign to English law: the one, as I have already explained, is
that the relation of individuals to the State is governed by principles essentially different
from those rules of private law which govern the rights of private persons towards their
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neighbours; the other is that questions as to the application of these principles do not lie
within the jurisdiction of the ordinary courts.”
The question is the following: does the EU follow a similar pattern?
Read Article 226 of the EC Treaty: “if the Commission considers that a
Member State has failed to fulfil an obligation under this Treaty, it shall
deliver a reasoned opinion on the matter after giving the State concerned the
opportunity to submit its observations. If the State concerned does not comply
with the opinion within the period laid down by the Commission, the latter
may bring the matter before the Court of Justice.”
Article 228 of the EC Treaty provides: “if the Court of Justice finds
that a Member State has failed to fulfil an obligation under this Treaty, the
State shall be required to take the necessary measures to comply with the
judgment of the Court of Justice. If the Commission considers that the Member
State concerned has not taken such measures it shall, after giving that State
the opportunity to submit its observations, issue a reasoned opinion specifying
the points on which the Member State concerned has not complied with the
judgment of the Court of Justice. If the Member State concerned fails to take
the necessary measures to comply with the Court's judgment within the time
limit laid down by the Commission, the latter may bring the case before the
Court of Justice. In so doing it shall specify the amount of the lump sum or
penalty payment to be paid by the Member State concerned which it considers
appropriate in the circumstances. If the Court of Justice finds that the Member
State concerned has not complied with its judgment it may impose a lump sum
or penalty payment on it[…]”.
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Note that:
a. “reasoned opinion” is a euphemism; it is a charge or accusation;
b. the action is brought before the Court of Justice by the Commission, not by the
State concerned;
c. therefore, the Commission does not have the power to unilaterally impose
obligations on the States. It can only object or accuse, and, in case of non -
compliance, bring an action before the Court;
d. Article 226 is full of understandable ambiguities : with these provisions, the
States have empowered a supra-national body to check them. This can explain the
“opinion” and the recourse to a court to ensure compliance by the States;
e. finally, in case of non-compliance with the decision of the Court, the Commission
can issue a new “opinion” but the Court can only fine the State.