Is EU Administrative Law Failing in Some of Its Crucial Tasks?

• Date: 01 September 2016
• DOI: http://doi.org/10.1111/eulj.12203
• Author: Edoardo Chiti
• Published date: 01 September 2016

Is EU Administrative Law Failing in Some of

Its Crucial Tasks?

Edoardo Chiti*

Abstract: Beneaththe surface of steady changes in EU administrative law lurk a numberof

long-term, structural problems.In this article, I argue that, becauseof these structural prob-

lems, EU administrative law is fai ling in some of its crucial tasks: (1) finding a balance

between administrative convergence and administrative diversitywithin the EU legal system,

(2) structuringadministrative power and its exercise, (3) governing administrative instabil-

ity. EU administrative law, however, is not necessarily trapped in the status quo. By identi-

fying and a rticulating a number of l ong-term problems, this a rticle aims at providing

some tools that future research could use in the discussion on the possible ways forward.

More generally, it suggests that EU administrative law should be reshaped as a project of

institutional design.

I Three Long-Term Problems

Europeanlegal scholarship is usually rathercomplacent about EU administrativelaw. It is

not difficultto understand why. EU administrative law is conceptuallyinteresting and pro-

vides scholarswith complex examples of principlesand rules of administrative law beyond

the state. Moreover, it is apparentlycapable of providing a numberof pragmatic solutions

to the growing number of challenges that the European Union faces, even in a period of

deep crisis like the present one. It can also help manage national administrative

shortcomings and trigger national administrative reform. This overall orientation of

European legal scholarship—at the same time, a bit passive and uncritically

optimistic—brings with itself a conditioned reflex, an implicit understanding of EU

administrative law as an essential building block of further legal integration, something

which affects thecomprehension of the current stateof development of EU administrative

law as well as its assessment.

Against this mainstream orientation, I would like to suggest that a more critical as-

sessment is required if we want to understand the situation in which EU administra-

tive law finds itself, to figure out where it is heading and to reflect on how EU

administrative law can contribute to the functioning of the EU polity. In short, this

article aims at laying the ground of a critique of EU administrative law. It is my

claim that beneath the surface of steady changes, lurk a number of long-term, struc-

tural problems.

Three of them are prominent. One results from the forces to which EU administrative

law is subject. EU administrative law may be conceived as the body of law governing

the EU administrative system, understood as the whole of EU, national and mixed

* Professor of AdministrativeLaw in the University of La Tuscia, Italy.

European LawJournal, Vol. 22, No. 5, September 2016,pp. 576–596.

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structures andprocesses functionally orientedto implement EU laws and policies.

1

As the

law of such a composite system, EU administrative law has developed as a complex web

of EU and nationalprinciples, rules and practices which interact in multiple ways and are

increasingly subject to the influence of international law. EU legal scholarship has often

celebrated this state of affairs as oneleading towards the gradual convergence of EU and

national norms which moreover enhances the effectiveness of the implementation

processes. But one should recognise that the ongoing process of convergence ismuch less

balanced than it is usually assumed to be. EU administrative law has not been able to

reconcile the competing claims of promotion of administrative convergence and protec-

tion of diversity.

A second problem concernsthe tasks dischargedby EU administrativelaw. Throughout

its history, EU administrative law has developed as a multi-purpose project, oriented both

to power-development and power-checking. This development has been sustained and

welcomed by EU legal scholarship, often within the context of a representation of the

European legal order as a legal and institutional space in which both the techniques of

administrative action and the instruments of administrative control are particularly

advanced and sophisticated. Yet EU administrative law is underdeveloped in two impor-

tant regards: on what concerns the recognition of the relevance and role of administrative

discretion,and regardingaccountability, whichis not operationalisedthrough fully accom-

plished regimes. In the almost seven decades of its history, EU administrative law has not

really clarified the statusof discretionary powerand the role to be played by accountability

regimes. Thiscompromises the capacity of European administrative law to steer power.

A third problem relates to the instability of administrative behaviour. EU administra-

tive law has not developed as a body of law aimed at determining the patterns of action

and behaviour capable of stabilising the conducts of EU administrationsand private per-

sons. EU administrative statutesoften raise uneasy questions of interpretation, even in sec-

tors in which clear and precise rules would be particularly useful. Moreover, EU

administrativelaws often accept and even promote theconsolidation of diverging admin-

istrative practices. In certain instances, EU administrative law also favours that EU ad-

ministrations produce unpredictable outcomes, even in fields of economic and social

regulation where such an outcome is bound to be deeply counterproductive. In all these

instances, EU administrative law renounces to stabilise the patterns of behaviour of EU

administrations and private actors. EU legal scholarship has rarely reflected on this fea-

ture of EU administrative law. Yet instability of administrative behaviour is not at all a

neutral phenomenon. It is an ambivalent force, which may either favour the

rationalisation of administrative relationships or alternatively produce disruptive effects.

By passively accepting instability,EU administrative law proves unable to keepthe short-

comings of instability under control.

This article aims at exploring these three problems, their causes and their implications.

A key thesis I will be holding is that the recurrent character of these problems constitutes

solid evidenceof the fact that EU administrative law isfailing to perform some of the cru-

cial tasks it should bedischarging, and more specifically the following three: (1) finding a

balance between administrative convergence and administrative diversity within the EU

legal system, (2) structuring administrative power and its exercise, and (3) governing ad-

ministrativeinstability. My overall perspective, however, doesnot intend to be merely de-

scriptive—something like ‘here are the problems, but it is not for me to provide the

1

For an explanation of this understanding of the EU administrative system, see E. Chiti, ‘La costruzionedel

sistema amministrativo europeo’,inM.P.Chiti(ed.),Diritto amministrativoeuropeo (Giuffrè, 2013)45–88.

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