Comparative law scholars uncover similarities and differences in administrative procedure across Europe.
Administrative procedure legislation is increasingly important from a comparative perspective.
In recent years, many national legal systems have adopted administrative procedure legislation. Indeed, the adoption of a general framework for administrative procedure at the national level is recommended by supranational and international institutions, such as the European Union and the Organization for Economic Cooperation and Development (OECD).
Calls for the codification of administrative procedure in Europe predated the Treaty of Lisbon, but with little practical result. The situation changed following the 2007 adoption of the treaty, which updated the powers of the European Parliament and its policymaking process. The Treaty of Lisbon revised the Treaty on the Functioning of the European Union (TFEU), establishing a new constitutional duty to regulate the conduct of EU administrative authorities and introducing a new policy concerning administrative cooperation.
This constitutional duty is set forth in Article 298 of the TFEU. That article referred for the first time to the European administration considered as a whole, including the agencies that proliferated after the signing in 1992 of the Treaty of Maastricht, which had a profound impact on the development of European integration. Moreover, Article 298 determines the principles guiding the EU’s administration, in the sense that it must be “open, efficient and, independent.” It also accords with the primary governing responsibilities of the Council and Parliament, which together constitute the dual legislator of the EU.
The European Parliament has adopted resolutions requesting the Commission propose administrative procedures, but thus far the Commission has refrained from doing so. In the absence of legislation implementing the duty established in Article 298, it has remained for the courts to consider whether so-called model rules may be helpful when the judiciary decides on the appropriate procedural and substantive principles that public authorities must respect.
Article 197(1) of the TFEU provides that “effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.” Even the fact that this provision excludes “any harmonization of the laws and the regulations of the Member States” serves to clarify that what is excluded is only harmonization, not an approximation of national laws on administrative procedure.
Recent years have witnessed intensified interest in national legislation on administrative procedure. Administrative procedure legislation in Europe is intriguing for at least two reasons: first, why it has developed at all; and second, whether it is characterized not only by differences but also by common elements.
Although French administrative law is particularly important for other legal cultures (in both Europe and Latin America), two other European countries have led the establishment of administrative procedural law: Spain in 1889 and Austria in 1925. The Austrian codification, in particular, was significant for its diffusion in Central and Eastern Europe. The Austrian model was followed by Czechoslovakia and Poland in 1928, as well as Yugoslavia in 1930.
In the years that followed the adoption of the U.S. Administrative Procedure Act in 1946, two other groups of European countries adopted legislation on administrative procedure. Some were not liberal democracies, including Hungary in 1956 and Spain in 1958 under Francisco Franco’s authoritarian regime. Others were liberal democracies, including Norway in 1967, Germany in 1976, Denmark in 1985, and Sweden in 1986.
In each of these periods and countries, the purposes behind administrative procedure legislation have varied. Some legislators intended to strengthen the protection of the individual’s rights, while others tried to improve administrative efficiency. Still others sought to increase the political control of bureaucracy.
After 1989, the movement toward legislation on administrative procedure spread throughout Europe. Italy adopted an administrative procedure law in 1990, Portugal in 1991, the Netherlands in 1994, and France in 2015.
Today, 24 out of the 27 member States of the EU have adopted some kind of administrative procedure legislation. The existence of general legislation concerning administrative procedure has become the rule rather than the exception.
Nevertheless, the heterogeneity of administrative procedure legislation quickly becomes evident when considering the size and the nature of various provisions. In some cases, particularly in Eastern European countries such as Bosnia, Latvia, Poland, Serbia, and Slovenia, the intent has been to adopt a comprehensive code of fair and efficient administrative procedure, with several hundred provisions. In other countries, including Italy and the Netherlands, legislation instead defines only general principles and rules.
The existence of such different types of legislation might suggest that no common standards in administrative procedure exist. But to discern better whether such common standards nevertheless do exist, it is necessary both to consider the contents of administrative procedure legislation and to conduct a factual analysis.
Such an inquiry into the contents of administrative procedure law reveals that, at least from a legislative viewpoint, there are some common and connecting elements: namely, the concept of administration, the right to be heard, and the duty to give reasons.
Often, general legislation does not refer simply to the existence of an authority or body, but instead it specifies that an administrative body must have been “established under public law.” This requirement is coherent with the EU directives concerning public procurements, where there is a consolidated concept of “body governed by public law.”
Another common concern in administrative law centers on the process by which an agency reaches a decision. Many national laws, more or less literally, reproduce the maxim audi alteram partem—or “hear the other side.” Other national laws conceive the right to be heard as the foundation for a number of process rights, such as access to documents and legal assistance.
Similarly, the duty to give reasons is recognized and protected everywhere, at least in its essential form—that is, concerning decisions adversely affecting an individual. Sometimes, higher standards are established by legislation. In the Netherlands, for example, a decision “shall be based on proper reason.”
Not all procedural infringements, however, give rise to a finding that administrative action is invalid. Invalidation typically occurs only with respect to those procedural errors that determine the final outcome of an administrative decision. Individuals may, therefore, have to rely on other legal sources for ensuring the protection of their rights, including constitutional provisions, EU law, and the European Convention on Human Rights.
To understand which procedures can provide a basis for invalidation, it is important to conduct factual analysis based on the methodology elaborated by legal scholar Rudolf Schlesinger in the 1960s. Concretely, this implies that some hypothetical cases—concerning, among other things, expropriation, rule-making and judicial review—are formulated to see how they would be solved in each of the legal systems selected.
My research using this factual analysis has led to two principal findings. First, the formulated cases did each speak to issues understandable in all legal systems studied. Second, there was both agreement and disagreement in how these formulated cases would be resolved across different countries.
In the end, it is evident that administrative procedure legislation possesses an admixture of commonality and diversity. This combination makes comparative legal studies of administrative procedure both interesting and important.
This essay draws on remarks delivered by the author at the Penn Program on Regulation’s (PPR) workshop on comparative administrative law, held at the University of Pennsylvania Law School in May 2022. A longer version is available separately as a PPR working paper.
This essay is part of a six-part series entitled Administrative Law in Comparative Perspective.
