DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS LEGAL AFFAIRS Workshop on EU administrative law: state of play and future prospects (León - Spain) Notes Abstract During a delegation of the Legal Affairs Committee, the Policy Department has organised a Workshop on EU administrative law at the University of León (27 - 28 April 2011). Several academic experts as well as law practitioners were invited to make contributions. The present collective edition contains all the briefing notes produced for the Workshop. PE453.215 EN This document was requested by the European Parliament's Committee on Legal Affairs. AUTHORS Professor Dr. Juergen Schwarze, Albert-Ludwigs-Universitaet Freiburg Professor Jacques Ziller, Università degli Studi di Pavia Oriol Mir-Puigpelat, University of Barcelona Luis Ángel Ballesteros Moffa, University de León Stéphane Braconnier, Université Panthéon-Assas (Paris II) Professor Jesús Fuentetaja, Universidad Nacional de Educación a Distancia (Madrid) Dr Manuel Rebollo-Puig, University of Córdoba Mr Hendrik Viaene, Stibbe Brussels Professor Michael Gøtze, Copenhagen University Dr Päivi Leino-Sandberg, Ministry of Justice Finland Helena Jäderblom, Supreme Administrative Court Sweden RESPONSIBLE ADMINISTRATOR Danai Papadopoulou Policy Department C: Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN/ES Translation: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its newsletter please write to: [email protected] Manuscript completed in March 2011. © European Parliament, Brussels, 2011. This document is available on the Internet at: http://www.europarl.europa.eu/activities/committees/studies.do?language=EN http://www.ipolnet.ep.parl.union.eu/ipolnet/cms DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Workshop on EU administrative law: state of play and future prospects (León - Spain) CONTENTS CONTENTS 3 I. EUROPEAN ADMINISTRATIVE LAW IN THE LIGHT OF THE TREATY OF LISBON: INTRODUCTORY REMARKS 7 EXECUTIVE SUMMARY 9 1. INTRODUCTION 9 2. THE DEVELOPMENT OF EUROPEAN ADMINISTRATIVE LAW 10 3. THE IMPACT OF THE TREATY OF LISBON 14 4. PERSPECTIVES FOR THE FUTURE DEVELOPMENT OF EU ADMINISTRATIVE LAW: A PARTIAL CODIFICATION 21 II. IS A LAW OF ADMINISTRATIVE PROCEDURE FOR THE UNION INSTITUTIONS NECESSARY? INTRODUCTORY REMARKS AND PROSPECTS 29 EXECUTIVE SUMMARY 31 1. INTRODUCTION 32 2. A SHORT SURVEY OF CODIFICATION EXPERIENCES THAT MIGHT BE RELEVANT TO EU INSTITUTIONS 34 3. THE PURPOSES OF A CODIFICATION OF ADMINISTRATIVE PROCEDURE 40 4. SCOPE OF CODIFICATION OF ADMINISTRATIVE PROCEDURE 43 5. METHODS OF CODIFICATION 47 6. CONCLUSIONS 50 III. ARGUMENTS IN FAVOUR OF A GENERAL CODIFICATION OF THE PROCEDURE APPLICABLE TO EU ADMINISTRATION 53 1. IMPACT OF THE TREATY OF LISBON ON THE DEBATE ON CODIFICATION OF THE PROCEDURE APPLICABLE TO EU ADMINISTRATION 56 2. REGULATORY SOURCES OF THE PROCEDURE APPLICABLE TO EU ADMINISTRATION 60 3. FRAGMENTATION, GAPS AND OTHER SHORTCOMINGS IN THE CURRENT REGULATION OF THE PROCEDURE APPLICABLE TO EU ADMINISTRATION 64 4. FUNCTIONS AND DYSFUNCTIONS OF A GENERAL CODIFICATION OF THE EU ADMINISTRATIVE PROCEDURE 67 3 Policy Department C: Citizens' Rights and Constitutional Affairs 5. CONCLUSION: CODIFICATION OF THE EU ADMINISTRATION´S PROCEDURE AS A PRIOR STEP TO CODIFICATION APPLICABLE TO ALL EUROPEAN ADMINISTRATIONS 73 IV. THE APPLICATION OF EU LAW: RELEVANT ASPECTS OF EUROPEAN ADMINISTRATIVE PROCEDURE 81 1. THE ROLE OF PROCEDURE WITHIN EUROPEAN ADMINISTRATIVE LAW 83 2. THE DECENTRALISED SYSTEM OF APPLICATION: COMPOSITE OR INTEGRATED ADMINISTRATION 91 3. THE INTRINSIC IMPORTANCE OF PROCEDURE 95 4. THE SUBORDINATION OF MEMBER STATES’ PROCEDURAL AUTONOMY TO THE GOALS OF EUROPEAN INTEGRATION 97 5. CONCLUSIONS 110 V. PUBLIC PROCUREMENT BY THE EUROPEAN UNION INSTITUTIONS 113 1. THE COMMUNITY INSTITUTIONS AS CONTRACTING AUTHORITIES 116 2. TYPES OF PROCEDURE APPLICABLE 118 3. ACCESS TO PUBLIC CONTRACTS AWARDED BY THE COMMUNITY INSTITUTIONS 122 4. ADVERTISING OF PUBLIC PROCUREMENT BY THE COMMUNITY INSTITUTIONS 125 5. SELECTION OF CANDIDATURES AND TENDERS 126 6. DISPUTES CONCERNING CONTRACTS AWARDED BY THE COMMUNITY INSTITUTIONS 128 7. CONCLUSIONS 130 VI. EUROPEAN UNION CIVIL SERVICE LAW 135 EXECUTIVE SUMMARY 136 GENERAL INFORMATION 137 1. EUROPEAN UNION CIVIL SERVICE LAW 138 2. CHARACTERISTICS OF THE EUROPEAN UNION CIVIL SERVICE 160 3. CIVIL SERVICE, EUROPEAN ADMINISTRATION AND EUROPEAN ADMINISTRATIVE LAW 180 VII. ADMINISTRATIVE PROCEDURES PRIOR TO THE ACTION FOR FAILURE TO FULFIL AN OBLIGATION 185 4 Workshop on EU administrative law: state of play and future prospects (León - Spain) EXECUTIVE SUMMARY 187 1. THE PRE-LITIGATION STAGE UNDER ARTICLE 258 TFEU 191 2. THE PRE-LITIGATION STAGE UNDER ARTICLE 259 TFEU 194 3. THE PRE-LITIGATION STAGE UNDER ARTICLE 260(2) TFEU 196 4. ARTICLE 260(3) TFEU AND ITS REFLECTION IN THE PRE-LITIGATION STAGE 198 5. THE ESTABLISHMENT OF THE AMOUNT OF THE LUMP SUM AND THE PENALTY PAYMENT BY THE COMMISSION 199 6. THE COMPLAINANT AND THE ACTION FOR FAILURE TO FULFIL AN OBLIGATION 201 VIII. ADMINISTRATIVE PROCEEDINGS IN THE AREA OF EU COMPETITION LAW 209 1. PROCEEDINGS CONCERNING ARTICLES 101 AND 102 TFEU 212 2. THE EU MERGER PROCEDURE 230 3. CONCLUSIONS 238 IX . THE EVOLUTION OF EU ADMINISTRATIVE LAW AND THE CONTRIBUTIONS OF NORDIC ADMINISTRATIVE LAW 239 1. INTRODUCTION 240 2. EU TRANSPARENCY AND THE EU OMBUDSMAN ON A NORDIC BACKDROP 241 3. A DUTY TO INFORM CITIZENS OF THEIR RIGHTS 244 4. CONCLUSION – THE RIGHT TO GOOD ADMINISTRATION AFTER LISBON 247 X. MINDING THE GAP IN EUROPEAN ADMINISTRATIVE LAW: ON LACUNAE, FRAGMENTATION AND THE PROSPECT OF A BRIGHTER FUTURE 249 1. INTRODUCTION 251 2. WHY ARE THE CURRENT EU RULES ON GOOD GOVERNANCE NOT SUFFICIENT? 252 3. WHAT COULD THE FUTURE REGULATION PROVIDE? 258 4. GOOD GOVERNANCE – THE NORDIC PERSPECTIVE 264 5. CONCLUSIONS 267 5 Policy Department C: Citizens' Rights and Constitutional Affairs XI. FROM FRAGMENTATION TO INCREASED COHERENCE: A USER-FRIENDLY EU ADMINISTRATIVE LAW 269 INTRODUCTION 271 1. PREVENTION OF CORRUPTION AND INCREASED LEGITIMACY 272 2. WHY A COMPREHENSIVE LAW? 273 3. THE SCOPE OF THE LAW 275 4. PRINCIPLES TO BE INCLUDED IN AN EU ADMINISTRATIVE LAW 276 6 European administrative law in the light of the Treaty of Lisbon: introductory remarks DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRS LEGAL AFFAIRS I. EUROPEAN ADMINISTRATIVE LAW IN THE LIGHT OF THE TREATY OF LISBON: INTRODUCTORY REMARKS Professor Dr. Juergen Schwarze NOTE Abstract This contribution covers the development of European administrative law, in particular the changes which the Treaty of Lisbon has brought about. Next to a growing amount of secondary law EU administrative law has been mainly shaped by the Court of Justice of the European Union. However, it still lacks a coherent structure. The author, thus, pleads for the codification of the major rules on administrative procedures in particular in the field of indirect implementation of European law – on a yet to be established legal basis in the Treaties which – in his view – the Lisbon Treaty still does not provide for. PE 432.777 EN 7 Policy Department C: Citizens' Rights and Constitutional Affairs LIST OF ABBREVIATIONS AG Advocate General CFI Court of First Instance ChFR Charter of Fundamental Rights CMLR Common Market Law Review DÖV Die öffentliche Verwaltung ECJ European Court of Justice ECR European Court Reports ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms EJIL European Journal of International Law EuR Europarecht TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union 8 European administrative law in the light of the Treaty of Lisbon: introductory remarks EXECUTIVE SUMMARY Given the fragmentary nature of written law, administrative law at European level was in a first step shaped and developed by the Court of Justice of the European Union on the basis of unwritten general principles of law common to the constitutional traditions of the Member States. In a second stage a reverberating effect of the newly developed European law on national administrative law and thus the development of a system of interaction between national and European administrative law could be observed. Nowadays, European administrative law is developing in two different, but somehow overlapping forms: in a narrower sense as the administrative law which regulates the direct and indirect execution of European Union law and in a broader sense as the description of the process of harmonization of the legal standard for administrative action between national laws of the Member States and the European Union (“Europeanization of administrative law”). Even though the Treaty of Lisbon leaves the system of European administrative law – on the whole – rather untouched and sticks to the traditional forms and instruments, it also brings about some vital changes. At first, Art. 197 TFEU introduces a new Title XXIV on Administrative Cooperation the autonomous legal value of which might however be questioned. More importantly,