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1 Speaking Notes 10 November 2014 Professor Herwig Hofmann EP JURI Committee information on ReNEUAL Model Rules on EU Administrative Procedures Herwig.

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Presentation on theme: "1 Speaking Notes 10 November 2014 Professor Herwig Hofmann EP JURI Committee information on ReNEUAL Model Rules on EU Administrative Procedures Herwig."— Presentation transcript:

1 1 Speaking Notes 10 November 2014 Professor Herwig Hofmann EP JURI Committee information on ReNEUAL Model Rules on EU Administrative Procedures Herwig C.H. Hofmann Professor of European and Transnational Public Law, Jean Monnet Chair / University of Luxembourg, FDEF, Centre for European Law / 4 rue Alphonse Weicker, L-2721 Luxembourg; Tel: +352 46 6644 6616 1 1

2 1) Introduction The Research Network on EU Administrative Law (ReNEUAL) Is a network of over 100 scholars from around Europe and has in a 5 year project developed Model Rules for EU Administrative Procedure. It was actively supported by the European Ombudsman. ReNEUAL has addressed in the past 5 years some of the most challenging design-tasks for contemporary Rules on EU Administrative Procedures Law: ensuring compliance with constitutional principles of the EU in the context of a de-central implementation of EU law. The basic assumption of the EP´s resolution of 15 January 2013 calling for a Commission proposal for a regulation on EU administrative procedure based on constitutional principles. Approach shared by ReNEUAL: administrative procedure law as a concretisation of constitutional law. 2

3 I will address 3 questions : 1.Is this the right moment of an innovative codification of EU Administrative Procedures? 2.Codification of What? 3.What are the bid underlying choices to be made in this context? 3

4 2) Timing - Is this the right moment ? An innovative codification of EU Administrative Procedures now? Generally, the design of EU administrative procedure law faces the same challenges of public law in general: To ensure that the procedures and institutions for effective decision- making are established whilst, no less importantly, protecting the rights of individuals. Three elements need to be respected by a system guaranteeing procedural justice : fairness (or value orientation), effectiveness (or ‘output-legitimacy’) and procedural legitimacy (or ‘input legitimacy’). 4

5 3) Codification of what? Certain common forms of act exist : a)Executive rule-making (generally binding regulatory acts), b)Single case decision-making (binding decisions with identified addressees), c)Contracts (binding agreements). d)Information management (mutual assistance and the collection and handling of information in structured information systems) these are special features of the de-central nature of implementation of EU policies. Structuring administrative procedures around specific problems arising in the forms of act has proven in many legal systems as being the most promising approach. 5

6 a) Rule-Making Executive rule-making is a sector in EU administrative law which Covers Delegated and implementing acts under Articles 290 and 291 TFEU Could also touch upon many more forms e.g. guidelines issued by EU agencies. (although this should arguably be left to a second phase if at all after testing the concepts on Article 290 and 291 TFEU procedures) Rule-Making can directly influence the outcome of decision-making for individuals. It is an area: Suffering from a lack of coherence between constitutional principles such as the ones outlined in Article 11 TEU and procedural reality. Marked by a great diversity of sector-specific legislation and a scarcity of general principles in the case law of the CJEU. With great potential for creating procedural rules improving the functioning and accountability of administrative action in the EU. 6

7 ReNEUAL Model Rules on rule-making Are mainly focussed on the phase prior to the presentation of the draft act by the Commission to the Parliament and Council under Art 290 TFEU and Art 291 (and comitology) TFEU Are based on the distinction of 3 phases of rule-making procedures (pre-adoption): Initiation, Full an impartial assessment of all relevant facts, Consultation, Reasoned report. 7

8 Issues for rule-making: Initiation of a Rule-making procedure: The Guiding principle should be: the administrative organisation between and amongst actors should have no effect on procedural rights and compliance with requirements of participation and transparency! Steps to achieve this include for the authority in charge of preparing the rule (generally Commission or an EU agency) should make public the intended act and its potential scope. Undertake a full and impartial assessment of all relevant facts (IA of a proposed rule against identified alternatives - including cost-benefit analysis if necessary), Consult where appropriate scientific expertise, Summarise the results of these studies then should be summarised in an explanatory memorandum as basis of effective consultation. 8

9 Further issues of rule making Effective and informed consultation should be used to comply with obligations in Article 11 TEU to increase quality of rule making: By adding to available information to administrations and participants in deliberation. Requiring public justification requirement to put pressure on quality of considerations. The final draft rule to be published with reasoned report (also = contribution to more effective administrative and judicial review). 9

10 b) Single Case Decision-Making ‘Administrative acts’ for single case decision-making are the core of most of the procedural rules of Continental European legal systems. are the main focus of the developments of general principles of EU law on procedure such as the rights of defence as restated by Article 41 of the EU Charter of Fundamental Rights (CFR) Situation in EU: many sector-specific provisions in EU law contain relevant rules, but the level of detail in various policy areas is very uneven e.g. on rights to a hearing. no standard best-practice set of rules exist for drafting policy related legislation. Result: unnecessary complications diminishing transparency and accessibility of rules associated reduction of accountability of actors. 10

11 Special drafting requirement in the EU: composite procedures Composite procedures structure the input into a single decision-making procedure from different jurisdictions. Are increasingly common e.g. in the case in the areas of risk-regulation such as medicines, food safety or others. This factor needs to be taken into account when designing procedural rules not only oriented at a efficient linking of pre-existing national actors to an administrative network but also looking at the rights and interests of individuals. 11

12 Phases of decision-making Inception, Initiation, Investigation and hearings Final decision and obligations flowing therefrom. Rules on single case decision making are also designed to develop the minimal codification contained in Article 41 CFR. need to keep in mind that in some instances the distinction between rule-making and single case decision making can be fluid. 12

13 Rules on single case decision making need to address inter alia : the way in which applications should be made and acknowledged; identification of handling officers; time limits; administration’s powers of investigation and inspection, including rules of proof and cooperation between Member State and EU bodies; inclusion of expertise; rules that govern the nature of a hearing and who can be a party to it, as well as access to documents; process rules in composite procedures. 13

14 c) Contracts Contracts are used extensively in EU Admin Law in diverse contexts: for procurement of goods and services. research and technological development, development aid, judicial cooperation in civil matters as well as in criminal matters and police cooperation, settlements of disputes about administrative duties. Generally: supporting, coordinating and supplementing actions of the Union (e.g. in merger control contractual means are used either as supplement to a merger decision or a condition for its existence in matters of divestment requirements and the use of trustees to oversee behavioural commitments. 14

15 Basic questions Should public contract law be specific administrative procedures or follow general contract law? Should there be a specific law for public procurement? Should contracts between public entities be included into the scope? How to ensure that public authorities cannot by chosing the form of a contract dis-apply generally applicable rules of public law including procedural provisions in decision-making parts? 15

16 Solutions developed by ReNEUAL Model Rules Solutions specific to the phases leading to the conclusion of a public contract; conclusion of the contract; and, its execution and termination. Model Rules suggest to make some of the basic provisions on decision-making applicable to public contracts e.g. regarding: requirements of fairness and transparency of responsible actors, principles of investigation, treating expertise and other information sources, granting hearings, reasoning, clarifying legal remedies and language requirements. 16

17 d) Mutual Assistance and Information Networks Offering proper procedures for information management is essential for good administration in multi-jurisdictional composite procedures. It covers Mutual assistance (= cooperation by e.g. exchange of information; conducting inspections for a requesting authority). Information management systems (= structured forms of information exchange or in databases – often managed by EU agencies e.g. SIS II and safety warning networks such as RAPEX). 17

18 Issues: Rights of individuals are directly touched both as parties to an underlying procedure (see e.g. C-276/12 Sabou [2013]), as well as third parties. Necessity to provide for data protection and access to information ‘by design’ Ensure effective accountability in composite procedures: Central problem: diversity of legal rules applicable. National Courts often lack jurisdiction to review the legality of input into final decisions resulting from other jurisdictions. Rules must allocate responsibilities and also allow for single standards of review. Essential for ensuring effective judicial review within the EU under the principle restated by Article 47 CFR. 18

19 3) Big underlying questions Relation of EU administrative procedure law to that of the Member States? Relation of general EU administrative procedure law to policy specific rules – minimum standards generally applicable or high level or regulation from which policy-specific exceptions may be possible? 19

20 a) Scope of application vis-à-vis MS The Model Rules presented suggest that: In principle, EU administrative procedure law should be applicable to EU authorities only unless declared in full or in part applicable in policy specific legislation to MS administrations = approach in e.g. Article 41 CFR. However, any rules relating to mutual assistance and information management systems must be applicable also to MS actors when participating in such action. Reason: Problems would arise from regulation only of the input of actions of EU authorities in such inter-administrative arrangements of intensive collaboration. 20

21 b) Relation of general to sector-specific law? Should rules on administrative procedure contain only minimum standards for all administrative activity? Disadvantage – lowest common denominator might raise standards in some areas but might not be sufficient for best practice a higher level of protection with possibility of adaptation in policy- specific matters? This is the approach of the Model Rules to provide for a good and transparent balance between requirements of protection of rights of individuals and effective decision- making by public bodies. Consequence: In absence of any policy specific rules, the detailed and high level general principles would be applicable. Combine flexibility for newly developing areas whilst requiring that exceptions are made explicit and with justification. 21

22 4) Conclusions EU administrative law has grown overly complex due to diversification of rules in various policy areas, multiplication of administrative actors and the requirement of a subsidiarity- based, de-central implementation of EU law. Well-designed procedural rules have the potential to Simplify this body of law by allowing to offload much detail to one general rule-book. Add to the intelligibility of procedures, transparency, allocation of responsibilities, content of rights. Enable both effective administration as well as protection of individual procedural and substantive rights. 22

23 5) Outlook Objective of legislating for an EU administrative procedure law is to ensure that a democratic Union based on the rule of law in which transparency, possibilities of participation and the respect of defence rights are not just theoretical objectives but real-life organisational features. The objective of the ReNEUAL Model Rules on EU Administrative Procedure is to: Propose forms of non-legislative implementation of EU law and policies, develop approaches to ensure compliance of implementation with the increasing constitutionalisation of values and principles on which the EU is based. 23

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