Transcript Prof. ZILLER - European Parliament

Speaking Notes 10 November 2014
Professor Jacques Ziller
EP JURI Committee information on
ReNEUAL Model Rules on EU
Administrative Procedures
Jacques Ziller
Professore ordinatio di diritto dell’Unione europea
Università degli Studi di Pavia
Strada Nuova 65, I – 27 100 PAVIA
[email protected]
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Presentation will address 2 questions :
1. Why an EU Administrative Procedure Law?
2. What can be done on the basis of the Lisbon Treaty?
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Introduction to the ReNEUAL Model Rules /
Book I – General Provisions
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A. Introduction to the ReNEUAL Model Rules ................................................... 2
Executive summary of the introduction ........................................................ 2
I. Background and mission of the ReNEUAL project: EU administrative
procedures and constitutional principles ................................................. 4
II. Law of administrative procedure in the EU – characteristics and
challenges .............................................................................................. 8
III. Models for the codification of EU law on administrative procedure? ..... 11
IV. Legal bases for EU codification ............................................................ 14
V. The six Books of the ReNEUAL Model Rules on EU Administrative
Procedures ........................................................................................... 21
VI. The approach....................................................................................... 24
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1) Why an EU Administrative Procedure Law?
a) Translation of constitutional values into real-life of the EU
institutions, bodies, offices and agencies
• protection of the rule of law (such as legality, legal certainty,
proportionality of public action and protection of legitimate
expectations)
• democratic transparent Union  definition and protection of rights
of participation and access to information, equality of citizens in their
access , openness and subsidiarity…
• Principle of good administration Article 41 Charter
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ARTICLE 41
Right to good administration
1.
Every person has the right to have his or her affairs handled impartially, fairly and
within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2.
This right includes:
(a)
the right of every person to be heard, before any individual measure which would affect
him or her adversely is taken;
(b)
the right of every person to have access to his or her file, while respecting the legitimate
interests of confidentiality and of professional and business secrecy;
(c)
the obligation of the administration to give reasons for its decisions.
3.
Every person has the right to have the Union make good any damage caused by its
institutions or by its servants in the performance of their duties, in accordance with the general
principles common to the laws of the Member States.
4.
Every person may write to the institutions of the Union in one of the languages of the
Treaties and must have an answer in the same language.
+ ARTICLE 42
Right of access to documents
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1) Why an EU Administrative Procedure Law?
b) Needs arising from the present state of EU law applicable to
administrative procedures
• fragmentation into sector-specific & issue-specific rules /
procedures
• some procedural elements addressed only partially within policyspecific rules
• gaps in regulation  unspecified general principles of law to fill
void
•  rules on administrative procedures for the implementation of
EU law developed dynamically and experimentally
• multi-jurisdictional nature (EU & member States’ law) of many
procedures & pluralisation of actors involved
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1) Why an EU Administrative Procedure Law?
c) Lessons to be learnt from member States’ and other
experiences in the codification of administrative procedure
law
• National codifications
• (E 1889 ; A 1925 etc.; D 1976 etc.) also US 1946; F 2015
• different as to depth and coverage
•  no single model is transferable as such
•  codifications have not led to augmentation of litigation nor to
freezing the rules and principles
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1) Why an EU Administrative Procedure Law?
d) Impact assessment for the EP
resolution: Key findings
• wording of binding law provisions lacks the
clarity and precision of Code of good
behaviour
• Not all differences indispensable
consequence of objective differences from
sector to sector
• important and underestimated issue :
availability of non-binding codes &
documents in all EU languages
• EU AP Law would help to establish a single
easily identifiable and comprehensible set of
rules and standards, that could increase
guarantees for citizens, economic operators,
NGOs and other legal persons across the
board
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2) What can be done on the basis of the Lisbon
Treaty?
a) The legal issue of appropriate legal basis
• Article 298 TFEU
1.
In carrying out their missions, the institutions, bodies, offices and agencies of the
Union shall have the support of an open, efficient and independent European
administration.
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In compliance with the Staff Regulations and the Conditions of Employment adopted on
the basis of Article 336, the European Parliament and the Council, acting by means of regulations
in accordance with the ordinary legislative procedure, shall establish provisions to that end.
• specific legal bases for certain transversal issues: 322 TFEU (financial regulations),
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• possible use of a joint legal basis, but
• legal bases for sector-specific regulation that provide for the use of a special
legislative procedure (e. g. 182 TFEU [specific programmes for research and
technological development], or 192 TFEU [certain measures in the field of
environment]) or sector specific objectives (e.g. consumer protection or
environment)
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2) What can be done on the basis of the Lisbon
Treaty?
b) The political issue of the scope of application of an EU regulation on
administrative procedure law
• different interpretations of art 298 TFEU are possible, but
• unrealistic reaching agreement in Council if rules were also to apply
to Member States’ authorities
• specific matters need the issue of co-administration to be adressed
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2) What can be done on the basis of the Lisbon
Treaty?
c) ReNEUAL’s choice:
• drafting rules ‘as if’ the issues were solved:
• If agreement on content of rules, legal basis issue more easy to
solve
• provisions could also be used as a type of ‘stand by
codification’ or as a ‘boilerplate’ to be supplemented with
sector specific norms in policy-specific legal acts
• Limiting the scope of application as a first step and as far as
possible
oThank you for your attention!
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