Developing Administrative Principles in the EU: A Foundational Model of Legitimacy?

• Date: 01 March 2012
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00597.x
• Author: Melanie Smith
• Published date: 01 March 2012

eulj_597269..288

Developing Administrative Principles in the

EU: A Foundational Model of Legitimacy?

Melanie Smith*

Abstract: This paper argues that administrative legitimacy has been neglected as having

the potential to provide a foundation for the legitimacy of the EU institutions. The

development of the administrative law-type mechanisms within the EU is almost exclu-

sively focused on the activities of the Member States as the main implementers of Union

law. This has left an administrative gap at the level of the EU institutions, with little

evidence of determinative horizontal administrative principles to be found in either the

Treaties or the case-law of two European courts. Where the courts have acted, they have

adopted a sectoral and highly circumscribed approach to the development of administra-

tive norms. The paper examines whether administrative principles can be harnessed as

a mechanism for increasing the EU’s legitimacy and, if so, how these principles f‌it with

the institutions’ approach to the legitimacy question. Post Lisbon, can evidence be found

within the Treaties that the administrative route to legitimacy has not been entirely

foreclosed? This paper proposes a model of administrative legitimacy for the EU level of

administration that provides a foundation for the interconnected concepts of good gover-

nance and political legitimacy.

Introduction

This paper examines what impact administrative law, or administrative type mecha-

nisms and principles, can have on the question of EU legitimacy. The purpose of the

paper is to begin a discussion of legitimacy as understood in political science through

the lens of administrative law, bringing together concepts familiar to political scientists

and administrative lawyers. In particular, it examines whether and how administrative

principles might be harnessed in order to increase the perceived legitimacy of the

EU institutions. In order to answer these questions, the paper begins by outlining the

connection between the concept of ‘legitimacy’ as def‌ined in political science literature

and the normative function of administrative law in a system of governance. This

analysis takes place against the backdrop of the evolution of the EU polity by looking

at how scholars have so far approached questions of legitimacy and EU governance.

It begins by examining the administrative development of the EU by analysing the

Treaties (pre- and post-Lisbon) and the approach taken by the two European courts to

* Lecturer, Cardiff University. I would like to thank Stijn Smismans, Bernadette Rainey, David Miers and

the two anonymous reviewers for their helpful comments on an earlier version of this paper.

European Law Journal, Vol. 18, No. 2, March 2012, pp. 269–288.

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developing administrative protections in the case-law.1It also makes reference to the

work of the European Ombudsman. As the institution charged with ensuring good

administrative practice in the EU, the Ombudsman has produced a soft law Code of

Good Administrative Behaviour,2the principles contained within this Code will be

referenced in the model of legitimacy. Turning to the question of legitimacy, the paper

adopts a specif‌ic def‌inition of legitimacy comprising political, policy and administrative

legitimacy in order to highlight the theoretical and practical connections that can be

made between legitimacy as a normative ideal, institutional responses to the legitimacy

crisis in the form of the good governance initiative, and the substantive protections

afforded to a citizenry that may be brought about by the development of administrative

principles.The paper presents an outline model of administrative legitimacy in order to

clarify discussion of this concept.

The paper is split into two parts. Section I draws on political science and legal

literature in order to demonstrate the importance of the development of administrative

norms in a system of governance that wishes to claim legitimacy on the basis of respect

for the rule of law.3The paper offers a working model of administrative legitimacy for

the EU institutions’ interaction with its citizens by highlighting how the concept of

good governance—once championed as the solution to the linguistic and practical

cul-de-sacs of debates on the democratic def‌icit—in combination with the concept of

good administration are the essential foundations of any notion of legitimacy writ

large. While not claiming to be a panacea for the legitimacy of the EU as supra-national

polity, it offers an alternative approach to the legitimacy question. It seeks to explore

the interaction between, and interdependence of, notions of legitimacy, good gover-

nance and administrative principles. Section II then assesses the EU’s current position

in relation to the development of administrative legitimacy in the pre- and post-Lisbon

era, including an assessment of the potential impact of the (now binding) Charter of

Fundamental Rights. It argues that despite the obvious interdependence of adminis-

trative principles, and concepts of good governance and political legitimacy, the EU

has developed, at best, an extremely weak form of administrative legitimacy. The paper

then concludes with some thoughts on what factors have led to this underdeveloped

form of administrative legitimacy and considers the prospects of a reinvigorated

approach to administrative legitimacy in the EU.

Section I: Legitimacy and Administrative Principles

The volume of literature on the legitimacy of the EU as a sui generis polity is enormous

and has attracted the attention of scholars from diverse disciplinary f‌ields. There

has been a rich debate on the normative progression of the EU as a supranational

1The paper will refer to the General Court and the Court of Justice as the European Courts, and use the

correct name of the court at the time it is being referred to.

2Code of Good Administrative Behaviour, adopted by Resolution of the European Parliament 6 September

2001, can be found at http://www.ombudsman.europa.eu/home/en/default.htm.

3The Treaties proclaim that the EU is based on the founding principle of respect for the rule of law,

Article 2 TEU. For detailed discussion of the rule of law, see P. Craig, ‘Formal and Substantive Concep-

tions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467; J. Jowell, ‘The Rule of Law

Today’, in J. Jowell and D. Oliver (eds), The Changing Constitution (Oxford University Press, 5th edn,

2004).

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