by Eva Nieto-Garrido and Isaac Martín Delgado. Oxford and Portland, Oregon: Hart Publishing, 2007. 210pp. Paperback. £45.00/$95.00. ISBN: 9781841135120.
Reviewed by Jacques Ziller, Faculty of Political Sciences, University of Pavia (Italy). Email: Jacques.ziller [at] unipv.it.
The book by Eva Nieto-Garrido and Isaac Martín Delgado would deserve to bear another title, i.e. “European administrative law in the treaties on the European Union and on the functioning of the European Union,” thus avoiding the risk that potential readers believe it is outdated, because the Constitutional treaty never come into force or because the Treaty of Lisbon encountered problems with the Portuguese electorate. The analyses of the book are and will remain relevant even before the amendments included in the Lisbon treaty – which are taking over the innovations of the Constitutional treaty – enter into force. The book clearly shows the added value to the field of European administrative law of the modifications that had been proposed by the European Convention 2002-2003.
In her Foreword, Carol Harlow, a well known British expert in the field of European and Comparative Administrative Law praises the book, with one minor caveat – her dislike for a code of administrative procedure. I would entirely subscribe to her praise, while disagreeing with her criticism against such a projected code, and as a matter of fact, I think the authors of the book make an excellent case in favor of a codification of procedures involving EU institutions. Harlow concludes her Foreword with the words, “we need to consider whether respect does not depend rather on effective policy-making than on institution-building and constitution-drafting.” Maybe, but effective policy-making depends on good implementation, and the object of European administrative law is nothing else than policy-implementation. Clarifying the institutional setting of the complex machinery of the EU will not be sufficient for the “delivery” of common policies. A better understanding of the principles, rules and procedures of European administrative law will help understanding what the result of a specific policy design is, and what is due to the constraints which have been built into the treaties by the governments of the EU member states and by its institutions. This is a major contribution by Eva Nieto-Garrido and Isaac Martín Delgado.
The book is divided into five chapters, each devoted to one of the issues for which innovations in the treaty-reform decade 2000-2010 are most relevant. They first try and establish the state of the art on the issue in the current treaties – EC and EU as amended by the Nice Treaty of 2001, which entered into force on 1 March 2003 –, in secondary legislation, case-law and literature. They then present the innovations contained in the Constitutional treaty – with the necessary updating comments pointing out how these innovations are taken up [*591] by the Lisbon treaty. This presentation is followed – sometimes accompanied – by the authors’ comments on the improvements which are being introduced in the EU’s basic law, and on any shortcomings. The book is therefore useful both as a complement to the standard books on European Administrative Law, by Auby and Dutheil de la Rochère (2007), Birkinshaw (2004), Chalmers and Tomkins (2007), Chiti (2008), Chiti et al (2007) , Craig (2006), and Schwarze (2006). It also introduces the debates which are to some extent already ongoing, and to some extent new because they will result from the entry into force of the relevant treaty amendments.
The first chapter is devoted to “Legislative Powers and Normative Instruments” and presents one of the most interesting reforms that will be carried in the Treaty on the Functioning of the European Union, albeit without the names which pleased the European Convention in 2002-2003 and displeased the British, Dutch and French governments in 2007, i.e. European Laws and Framework Laws and European Regulations. The chapters give a clear account of the major innovation which consists in a distinction between legislative, delegated and executive instruments. It is quite critical about some of the consequences of the reform, and would have benefited from the analyses which are developing since the adoption of the Lisbon treaty. The choice of starting the book with this chapter was a good one, as this reform gives a solid basis to the concept of European administrative law and will no doubt have important consequences, i.e. having different regimes for legislative and non legislative acts. Like US or French administrative law, European administrative law deals with regulatory acts, and is not confined to individual decisions.
The second chapter, “Implications of a Binding European Charter of Fundamental Rights for the Individual Decisions Made by the European Public Administration,” has a long title to signal that the authors intend to go beyond existing commentaries on the right to good administration, access to documents, and to protection of personal data. Nevertheless, most of the substance of this chapter is devoted to the content of these rights. The comments on the implications of a binding charter remain somewhat limited, as most of these implications will depend upon the choices made by the European Court of Justice. The fact that a binding Charter will most probably lead to an increase of questions for preliminary ruling directed at the Charter has to be born in mind, and one may wonder whether and to what extent the infamous protocol on the position of the UK might have any impact on the relevant rights.
The third chapter on “The Impact of the Charter of Fundamental Rights on Decisions Adopted by the Member States” is more original than the second one. Indeed, only part of the literature has noticed the problems related to the scope of Article 41 of the Charter: does it only cover the decisions of EU institutions, or also, as most other rights of the Charter, those of the member States’ authorities in the implementation of EU law? The Chapter gives a very useful account of the arguments and responses, and also proceeds to an in-depth examination of the reach of Article 51, [*592] about member states’ authorities “when they are implementing Union law.” The authors clearly opt for an extensive interpretation, as I would do. The case-law of the Court will tell us whether this is the right answer. A complement to this chapter could be a sector analysis: will the impact of Article 41 be more important to freedom of movement of persons – especially of third-country nationals – or to freedom, security and justice, or in the field of the internal market? Here again the protocol on the position of the UK with respect to the Charter might shed a new light on a disputed issue.
The fourth chapter, “Towards a Law on Administrative Procedure,” again presents a very useful in-depth examination of the innovation resulting of the new Article 298 TFUE (III-398) which gives legal basis for general codification of administrative procedures of EU institutions, bodies, offices and agencies. The authors not only discuss the issue of the legal basis, but also the application of such a general regulation on administrative procedure, drawing upon the code of good administrative behavior of the European Ombudsman. Spanish lawyers are very much aware of the advantages and drawbacks of a general law on administrative procedure, as their country has been one of the first in Europe – with Austria – to adopt such a regulation. Whether a European regulation of Administrative procedure would have the impact on European administrative law that the APA has had on American administrative law, would be an interesting topic for further discussion.
Chapter Five on “Judicial Protection” is rightly placed at the end of the book, signaling that judicial protection is a rather minor field of innovation – compared with the other institutional changes resulting from the constitutional treaty. At the same time, it rightly demonstrates that there are also some interesting innovations in the field of judicial protection, which should not be underestimated: the modification of the rule of standing in actions of annulment against a regulatory act, the extension of the courts’ jurisdiction to Europol and Eurojust, the mention in the treaty of the member states’ obligation to provide appropriate remedies to ensure effective legal protection in the fields covered by Union law, and – last but not least – the extension of the court’s jurisdiction to the entire field of the area of justice, security and freedom. This is, I believe, the major change – from the point of view of positive law – which would result from the entry into force of the Lisbon Treaty. Interestingly, the protocol on transitional measures and the protocols on the positions of Denmark, Ireland and the United Kingdom remind us that this new field of EU law might have a reduced territorial scope, thus introducing geographic differentiation as an important issue for European administrative law.
Auby, Jean-Bernard, and Jacqueline Dutheil de la Rochère (eds). 2007. DROIT ADMINISTRATIF EUROPÉEN. Bruxelles: Bruylant.
Birkinshaw, Patrick. 2004. EUROPEAN PUBLIC LAW. Cambridge, Cambridge University Press. [*593]
Chalmers, Damian, and Adam Tomkins. 2007. EUROPEAN UNION PUBLIC LAW – TEXT AND MATERIALS. Cambridge, Cambridge University Press.
Chiti, Mario P. 2008. DIRITTO AMMINISTRATIVO EUROPEO (3rd ed). Milan : Giuffrè.
Chiti, Mario P., Guido Greco, Gian Franco Cartei, and Diana-Urania Galetta (eds). 2007. TRATTATO DI DIRITTO AMMINISTRATIVO EUROPEO (2nd ed). Milan: Giuffrè.
Craig, Paul. 2006. EUROPEAN ADMINISTRATIVE LAW. Oxford : Oxford University Press.
Schwarze, Jürgen. 2006. EUROPEAN ADMINISTRATIVE LAW (1st rev. ed). London: Sweet & Maxwell.
© Copyright 2008 by the author, Jacques Ziller.