Administrative Law in Europe: Between Common Principles and National Traditions

Transcription

1 Administrative Law in Europe: Between Common Principles and National Traditions Edited by Matthias Ruffert European Administrative Law Series (7)

2 CONTENTS Contents About the Authors Administrative Law in Europe: Between Common Principles and National Traditions Eberhard Some Explanations to the Key Terms Administrative Law in Europe National Traditions 4 Common Principles 5 Ambiguities of the Question ('Between'): Exchange and Interaction 6 2 Some Reflections on Possible Questions within the Subject 7 A Pattern of Analysis: Twelve Fields Horizontal Processes of Exchange: The Central Role of Historically-Informed Administrative Legal Comparison 8 The Autonomy of Administrative Legal Comparison Patterns of Exchange Processes: From 'Families of Law' to 'Common Learning' Vertical Processes of Exchange: National Traditions and Common Principles in EU Administrative Law Creation of an Association Implementation of the Law Between Innovation and Conflict 1 'NATIONAL TRADITIONS': OBSTACLES TO A COMMON LEGAL - NATIONAL PERSPECTIVES 2 English Andrew Le Sueur I Defining Tradition 2 The Politics of Tradition Tradition in a Fast-Changing Society 4 Communities of Tradition National tradition 4.2 The General Public 4- The Executive 4-4 The Judiciary The Legislature 4.6 The Commonwealth 5 Two Overarching National Traditions Norms Made Through Cases

3 ADMINISTRATIVE LAW IN EUROPE: BETWEEN COMMON PRINCIPLES AND NATIONAL TRADITIONS 5.2 No Strong Concept of the 'the State' 6 Preservation and Disposal of Tradition I National Traditions in French Administrative Law Pascale Gonod Reference Points Traditions 5 The Subject of the Study: National Traditions in French Administrative Law 8 Telltale Cases of National Traditions in French Administrative Law 9 Case Heritage as a Barrier to Change 9 Case 2: Frontal Opposition Between Two Legal Rules: 'European Domain vs. National Traditions' 42 German Traditions in Administrative Law. Obstacles to a Common Legal Framework? Jens-Peter Schneider Introduction and Overview 51 German Traditions in a Historical Perspective 51 The Founding Period During the Belle Epoque of National Administrative Law in Europe 51 The Fundamental Crisis During the Reich 54 of German Administrative Law under the Basic Law 54 Modernisation of German Administrative Law in Reaction to New Political and Administrative Challenges 56 New Forms of Administrative Action: Planning Law 56 Codification of Administrative Procedural Law 57 New Standards for Administrative Intervention and Participation: Environmental Law 58 New Forms of Administrative Discretion: Risk Regulation and Economic Regulation 59 New Forms of Cooperation Between Administrative Authorities and Private Parties 60 Acceleration of Administrative Procedures 60 New Forms of Administrative Information Management and Communication New Forms of Transnational Cooperation Between Administrative Authorities 62 Interim Result 62 Potential Conflicts in the Process of Europeanisation of German Administrative Law 62

4 CONTENTS Specific Conflicts.2 A General Conflict Caused by the Fragmented Nature of EU Law Cultural Traditions and Policy Preferences in Italian Administrative Law Roberto Caranta Introduction 69 2 Diritti and Interessi Legittimi 71 Discretion 75 4 Eccesso di Potere and Legality Review 78 5 Conclusions 82 6 Spanish Administrative Traditions in the Context of European Common Principles Andres Methodology: How do we Define a 'National Tradition' in Public Law? 85 2 Spanish Law and Spanish Culture in the European Context 86 Spanish Law and Spanish Law in Europe Spain and the European Promise Receptivity and Resiliency of Spanish Law 90 Main Characteristics of the Spanish Legal System in Twelve Selected Fields 91 4 Hypothesis of Identification of Some Spanish Administrative Traditions 94 7 What about Integrity? National of Registration and Transparency Gunilla Edelstam Introduction 10 2 Traditions and Principles 10 Tradition Principle 105 National Legal Traditions of Registration and Public Access National registration Public Access no 4 Integrity Constitution 4.2 Ordinary Law Concluding Remarks "9

5 ADMINISTRATIVE LAW IN BETWEEN COMMON PRINCIPLES AND NATIONAL TRADITIONS TRADITIONS AND EUROPEAN LAW 8 Ius Publicum Divergent National Traditions or Common Legal Patrimony? Giacinto Cananea Commonality of Private Law v. Nationality of Public Law? The Frailty of the Conception of Public Law as a National Enclave 127 Savigny's Thesis of Roman Private Law as the Only Common Legal Framework in Europe Hegel and Public Law as the Product of the State 129 Dicey and the Antithesis between National Constitutional Traditions: Strength and Weaknesses From Doctrines to Legal Realities National Norms and Separation of Powers A Parallel Development: From the Immunity to the Liability of Public Administrations Common Constitutional Traditions (I): Audi Alteram Partem Common Constitutional Traditions (II): Parliamentary Consent to Taxation 144 The Rediscovery of the Common Legal Patrimony Within the EC/EU 146 The Early Years of the Jurisprudence of the European Court of Justice (ECJ) the Revitalization the 'Ius Publicum Commune' 146 The EU Treaty, Common Constitutional Traditions, and National Identities 148 Ius Publicum Commune: A Vital Concept 150 EU Administrative Law and Tradition Paul Craig '5 I Introduction Source and Inspiration Status and Hierarchy Principle and Purpose Individual Protection and Administrative Efficacy Geographical Reach and Administrative Diversity Conclusion '55 16

6 CONTENTS New Public Management: A New Common European Tradition Athanasios Gromitsaris 17 Tradition, Reproduction and Deviation New Public Management: A Stranger in the House of Public Law 177 on the 'Genetic Code' of European Administrative Legal Systems 181 Administrative Law's Autonomy Administrative Tasks. Administrative Organisation Administrative Legitimacy Administrative Statutes Criteria of Administrative Action Legality of Administrative Action Administrative Discretion Forms Administrative Action 190 Administrative Communication 190 Administrative Controls Administrative Courts Public Law as an Impediment to and a Tool for NPM-Led Change 19 Constitutional Law and Established State Structures Civil Service Law The Pendulum Experience: Privatisation and Re-Municipalisation Re-Municipalisation and Competition Efficiency as a Legal Concept Culture of Assessment of Government Policy by Independent Agencies NPM and Public Sector Reform in the Crisis-States of the Euro-Area 204 Tax Law The Promise of Growth without Deficit Spending Concluding Remarks 209

7 ADMINISTRATIVE LAW IN BETWEEN COMMON PRINCIPLES AND NATIONAL TRADITIONS RESULTS AND PERSPECTIVES Common Principles and National Traditions: Which Perspective for European Administrative Legal Scholarship? Matthias Ruffert Introduction National Traditions: The Heart of Administrative Law? 216 Civil and Public Law Politics and Historical Contingencies Tradition Shaping in the Long Century 218 Elements of Tradition National Traditions.2 Common Traditions Trends against Tradition 219 Europeanisation New Public Management - and the Counter Movement 4. Receptiveness to Foreign Influences Outlook 220