The Development of Integrated Administration in the EU and its Consequences

• DOI: http://doi.org/10.1111/j.1468-0386.2007.00355.x
• Date: 01 March 2007
• Published date: 01 March 2007
• Author: Alexander Türk,Herwig C. H. Hofmann

The Development of Integrated

Administration in the EU and its

Consequences

Herwig C. H. Hofmann and Alexander Türk*

Abstract: The discussion about the transformation of forms of government and gover-

nance in Europe cannot avoid touching upon the role of administrations or administrative

actors. Within the EU’s multi-level system, the activities of agenda-setting, policy formu-

lation, and implementation all involve some form of interaction between public actors from

the sub-national, national, supranational, and international levels. Cooperation amongst

administrations in Europe has become the backbone of the EU’s unique system of gov-

ernment and governance. Forms of cooperation have led to an integrated administration,

which has developed in an evolutionary fashion and operates in large parts beyond the

formally constituted rules of the treaties. This article explores the implications of this

phenomenon and argues for the need of a changed perspective.

I Introduction

The traditional notion of administration in the EU is that of the distribution of

functions within a two-level system. European interventions in certain policy areas are

made through legal acts. The role of the Member States in this picture is to implement

these provisions. Implementation on the European level through direct administration

is the exception to indirect administration by the Member States. This model, which is

often referred to as ‘executive federalism’,1requires modification on several counts.

* Dr Herwig C. H. Hoffman is Professor of European Law at the Faculté de Droit, d’Economie et de

Finance, Université de Luxembourg. Dr Alexander H. Türk is Senior Lecturer in Law, King’s College

London

1See for the description of the classic model of executive federalism, e.g., K. Lenaerts, ‘Some Reflections on

the Separation of Powers in the European Community’, (1991) 28 CMLR 11–35 at 11 et seq.; B. Dubey,

‘Administration indirecte et fédéralisme d’exécution en Europe’, (2003) CDE 87–133. This model is also

the dominant one in the Treaty establishing a Constitution for Europe, OJ C 310/1 2004. Article I-37 lays

down the general principle that Member States ‘adopt all measures of national law necessary to implement

legally binding Union acts’. Only in cases ‘where uniform conditions for implementing legally binding

Union acts are needed’, does the Community retain the power to implement EU legislation. Article I-37

mentions forms of cooperative administration only indirectly in the third paragraph, which repeats the

hidden reference to comitology, known from Article 211 EC. For a view that emphasises the cooperative

nature of executive federalism, see, e.g., P. Dann, ‘European Parliament and Executive Federalism:

Approaching a Parliament in a Semi-Parliament Democracy’, (2003) 11 European Law Journal 549–574.

European Law Journal, Vol. 13, No. 2, March 2007, pp. 253–271.

© 2007 The Authors

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

In the reality of today’s EU system there is intensive cooperation of administrative

actors from the Member States and the EU in all phases of the policy cycle from

agenda-setting, to decision-making to implementation of policies.2In this process, the

now traditional distinction of direct and indirect administration has become increas-

ingly blurred. Instead, the levels are interwoven. The EU level is also involved in

implementing activities undertaken by Member State authorities,3while Member

States’ administrations are involved in creating EU legislation and implementing acts.

The EU is characterised by its multilevel cooperative governance structures. They are

designed to include the different decision-making levels and generate knowledge in the

administrative system prior to taking decisions. This has resulted in the emergence of

what can be described as a European ‘integrated administration’.4This article outlines

the forms and characteristics of integrated administration that exist in the EU (section

II), discusses whether the existing models that have been developed for the legitimacy

and legality of European action can also be applied to such an integrated administra-

tion (section III), and analyses the consequences of this development for the account-

ability of Europe’s integrated administration (section IV).

II Europe’s Integrated Administration

Structures of integrated administration occupy a prominent place within the European

Union’s multilevel system of governance. They operate in large parts beyond the

formally constituted rules of the treaties,5and have developed in an evolutionary way

differing in each stage of the policy cycle and each policy area. They integrate European

and national administrations to a degree not well recognised in administrative law and

administrative science literature.

In the policy phase of agenda-setting, for example, we find national administrations

playing a crucial role in shaping the Commission’s policy initiatives, despite this phase

being formally dominated by the Commission. Expert groups, composed of national

civil servants, are used as arenas for deliberation, brainstorming and intergovernmental

2This article is based on a wide understanding of the notion of administration encompassing organisational

and functional as well as substantial aspects.

3On the increasing importance of these composite administrative procedures, see S. Cassese, ‘European

Administrative Proceedings’, (2004) 68 Law and Contemporary Problems 21–36; G. della Cananea, ‘The

European Union’s Mixed Admininstrative Proceedings’, (2004) 68 Law and Contemporary Problems

197-218; M. P. Chiti, ‘Forms of European Administrative Action’, (2004) 68 Law and Contemporary

Problems 37–60; C. Franchini, ‘European Principles Governing National Administrative Proceedings’,

(2004) 68 Law and Contemporary Problems 183–196; E. Schmidt-Aßmann, ‘Verwaltungskooperation

und Verwaltungskooperationsrecht in der Europäischen Gemeinschaft’, (1996) Europarecht 270–301;

G. Sydow, ‘Die Vereinheitlichung des Mitgliedstaatlichen Vollzugs des Europarechts in Mehrstufigen

Verwaltungsverfahren’, (2001) Die Verwaltung 517–542; G. Sydow, Verwaltungskooperation in der

Europäischen Union (Mohr, 2004).

4See: H. C. H. Hofmann and A. Türk, ‘Conclusions—Europe’s Integrated Administration’, in

H. C. H. Hofmann and A Türk (eds.), EU Administrative Governance (Edward Elgar, 2006), pp. 573–596.

5See: G. De Búrca, ‘The Institutional Development of the EU: A Constitutional Analysis’, in: P. Craig and

G. De Búrca (eds), The Evolution of EU Law (Oxford University Press, 1999). Instead, it is governed by

general principles of law. General administrative legislation only exists in rudimentary beginnings for

example in the form of the Comitology Decision (Council Decision 1999/468 of 28 June 1999 laying down

the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184/23 1999),

Council Regulation 58/2003 laying down the statute for executive agencies to be entrusted with certain

tasks in the management of Community programmes (OJ L 11/1 2003), or the famous Regulation 1/58 on

the language regime in the EC of 6 November 1958.

European Law Journal Volume 13

© 2007 The Authors

254 Journal compilation © 2007 Blackwell Publishing Ltd.