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

AuthorEdoardo Chiti
Publication Date01 Sep 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) nding 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 difcultto 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 scholarshipat the same time, a bit passive and uncritically
optimisticbrings with itself a conditioned reex, 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 nds itself, to gure out where it is heading and to reect 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. 576596.
© 2017 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK
and 350 Main Street, Malden,MA 02148, USA
structures andprocesses functionally orientedto implement EU laws and policies.
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 inuence 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 claried 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 elds 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 reected 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 specically the following three: (1) nding 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-
scriptivesomething like here are the problems, but it is not for me to provide the
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)4588.
European Law Journal Volume 22
©2017JohnWiley&SonsLtd. 577

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