Legitimacy in European Administrative Law: Reform and Reconstruction

Transcription

1 Legitimacy in European Administrative Law: Reform and Reconstruction Edited by Matthias Ruffert European Administrative Law Series (6)

2 CONTENTS Acknowledgements Contents NTRODUCTON CHAPTER i Legitimacy in Administrative Law: Reform and Reconstruction Pascale Gonod 1 1 General Remarks Claim (or Expectation) 3 1. Decomposition 4 Forms of Legitimacy 4.1 Deepening of Democratic Legitimacy 4. Development of Participative Legitimacy 4.3 A Procedural Legitimacy? 6 LEGTMACY AND ACCOUNTABLTY AS A BASS FOR ADMNSTRATVE ORGANSATON AND ACTVTY CHAPTER Legitimacy in Administrative Law? A French Perspective Jacques Caillosse 9 1 Understanding the Question What Does 'Legitimacy' Actually Mean? On the Uncertain Legal Status of Legitimacy The Variety of Forms and Types of Legitimacy Historic Roots and Contingency of Legitimacy Administrative Law on the ssue of Legitimacy Discourse on Legitimacy Questioning Legitimacy in other Ways Mechanisms for Providing Legitmacy Conclusions on 'Legitimacy in Administrative Law' Distinction between Legitimacy of Administrative Law and of Administration nterdependence of Administrative Law and Power 17 What Response(s) are Provided by French Administrative Law? 18.1 From Legitimation through Law Material or Functional Analysis 1.1. Legitimacy on a Constitutional Basis 1....to de-legitimation through Management? 4 3 Potential Developments 5

3 LEGTMACY N EUROPEAN ADMNSTRATVE LAW CHAPTER 3 People as 'Users' and 'Citizens' The Quest for Legitimacy in British Public Administration Andrew Le Sueur 7 1 ntroduction Outline 9 1. Concepts of Legitimacy 30 The British Constitutional Context 31.1 Power from 'We, the people' in Britain? 31. Two Spheres of Legitimacy: the Micro and the Macro 3 3 s there a Legitimacy Crisis in Britain? 33 4 Micro Legitimacy in the ndividual Sphere: Users The User Perspective Agenda The 'Principles of Good Administration' Agenda 39 5 Macro Legitimacy in the Collective Sphere: Participation dentification of Problems and Policy Formation (Stages 1 and ) 4 5. Providing Legal Authority for Policy (Stage 3) Questions of nstitutional Design 45 6 Closing Comments 4 8 CHAPTER 4 Legitimacy and Accountability as a Basis for Administrative Organisation and Activity in Germany Eberhard Schmidt-Afimann i ntroduction What is State Authority ('Staatsgewalt')} What is People ('Volk')} What does 'Derives' ('geht aus') Mean? Personal Legitimation Substantial Legitimation The dea of a Sufficient Level of Legitimacy ('Legitimationsniveau') Some Current Problems ndependent Agencies Privatization Perspectives: Legitimacy and Accountability in European Context

4 CONTENTS CHAPTER 5 Legitimacy and Accountability in talian Administrative Law. A Critical Analysis Giacinto della Cananea 59 1 Distingue Frequenter 61 The Legitimacy of Administrative Action: Three Constitutional Models 6 3 'Power from the People' - Rhetoric and Reality 64 4 The Obsession for Legality and its Drawbacks 66 5 From Legality to Legitimacy: The General Principles of Law 69 6 Procedural Legitimacy 71 7 Accountability as Responsibility 73 8 Accountability, Performance and Transparency 75 9 nstitutional Constraints on Political Power: ndependent Authorities Accountable to None? Public-Private Corporations 79 CHAPTER 6 The Legitimacy of the Administration in Spain Francisco Velasco Caballero 81 1 Administration, Democracy and the Constitution Methodological Plan Spanish Public Administration Pre-constitutional Administration The Constitutional Administration 87 The Diversity of Legitimacy Arguments: Law, Political Theory and Administrative Science 89.1 Political Theory: the Concept of Democracy 89. Administrative Science: Effectiveness and Participation Levels of Constitutional Legitimacy 9 4 Forms of Legitimacy Legality as a Criteria of Legitimacy Parliamentary Control Citizen Participation Submission to the Direction of Government Objectivity and Efficacy in the Service of the General nterest 10 5 Special Analysis of some Types and Forms of Administration ndependent Administrations Corporate Administration no 5.3 Mixed Administration Local Administration 113

5 LEGTMACY N EUROPEAN ADMNSTRATVE LAW CHAPTER 7 Legitimacy ssues in Administrative Law. Historical Approach, Constitutional Approach, Fact-Finding Approach to Responsibility from a Swedish Perspective Gunilla Edelstam ntroduction 117 Legitimacy and Monarchy Legitimacy of the King in Ancient Times 118. Legitimacy of the King Today 10.3 Legitimacy at the Decline of the Power of the Monarchy 1 3 Legitimacy and Democratic Constitution ntroduction Legislation and Legitimacy The Constitution on Legislation Control of Legislation Legitimacy ssues Commitment of the MP Framework Legislation The Quantity of Legislation Respect for Fundamental Rights of the Citizens Strong Protection Weak Protection No Protection Application and Legitimacy The Constitution on ssues of Application Control of Application Legitimacy ssues Rule of Law and Fair Procedure Jurisdiction or Administration? Legitimacy and Facts ntroduction: Questions of Law and Questions of Facts Questions of Law Questions of Discretion Questions of Facts Methods Fact-Finding Burden of Proof Duty to nvestigate M Standard of Proof M4 4.3 Responsibility Concluding Remarks 15 1

6 CONTENTS CORE SSUES OF LEGTMATE ADMNSTRATON N EUROPE CHAPTER CHAPTER 9 The History of Legitimate Administration in Europe Juli Ponce Sole ntroduction The Bureaucratic Paradigm New Public Management Governance Quality of Administrative Action: The Right to Good Administration and Procedural Legitimacy Quality of Administrative Action Good Administration and Good Governance: Administration and Democratic Legitimacy Democracy, Legitimacy and Accountability - is there a Common European Theoretical Framework? Roberto Caranta 155 ' V Foreword The Democratic Nation-State and its Administration The Weak Spots in the Paradigm mprovements to the Paradigm or an Alternative Paradigm? Shortcomings of the New Paradigm - and of some of its nstitutions - and their Cure The Quest for Legitimacy and Accountability in the EU Conclusions CHAPTER O Legitimacy in Administrative Law: European Union Paul Craig ' Formal Legitimacy Legitimacy and Legal Accountability Availability of Judicial Review Targeting Judicial Review Legitimacy and Political Accountability Legitimacy and Substantive/Output Accountability The CAP and the Structural Funds Utilities Regulation Conclusion

7 LEGTMACY N EUROPEAN ADMNSTRATVE LAW CHAPTER ii Historical and Prospective Views on Comparative Law as a Tool to Build a Framework for Legitimacy in Europe Susana de la Sierra 17 1 ntroduction: The Transformation of Administrative Law as a Transformation of Powers Administrative Law through Time from a Comparative Perspective: A Tentative Chronology.1 The Precedents of Administrative Law. The 'French Legal Empire' as a Model of Reference.3 The Administrative Law of the Welfare State and the ncorporation of other 'Foreign Elements'.4 Globalisation as a North American Approach 3 Some Questions for the Comparative Analysis 3.1 The Particular Forces of Specific Legal Orders: The Concept of'legal Diplomacy' 3. Globalisation of Language, Globalisation of Concepts? 3.3 The mport of Legal Concepts and the Assumption of Political and Constitutional Contexts 4 What Legitimacy? 5 A Look into the Future: Farewell to the Weberian Administration? CHAPTER 1 The Legitimacy of Administration: German deas and how they are Received in France Patrice Chretien 35 1 A German View of the Question of Democratic Legitimation of the Administration in France 1.1 'n France, the question of democratic legitimation of the administration is not really discussed' 1. 'n practice, democratic legitimation of the administration is nonetheless fragile...' The German Theory of Democratic Legitimation of Administration.1 General Observations. The Fragility of the Democratic Principle CHAPTER 13.1 Problems of Legitimacy in Contracting-Out and Privatisation Catherine Donnelly ntroduction Experience of Contracting-Out in the UK and reland UK

8 CONTENTS. 3 3.i 3-1.i reland nput Legitimacy Constitutional Legitimacy The UK reland Democratic Legitimacy Direct Participatory Democracy ndirect Participatory Democracy Liberal Democracy Civic Republican Democracy Public Choice Democracy Policy-Making/Policy-mplementation Output Legitimacy Efficiency and Effectiveness Managerial Explanations for Efficiency and Effectiveness Political Explanations for Efficiency and Effectiveness Ensuring Efficiency and Effectiveness Accountability Political Accountability Legal Accountability.1 The Need for Public Law Accountability. Public Law in the UK.3 Public Law in reland Enhancing Legitimacy of Contracting Out and Privatisation Conclusion CHAPTER 14 Legitimacy: From Politics to Expertise and Public Opinion? Dawn Oliver 83 ntroduction Politics. Politicians and Leeitimacv The UK Experience The Regulation of Politicians'Decision Making Depoliticisation and the mmunisation of Decisions from Politics The Balancing of Participation and the Public nterest A Case Study: The UK Planning Act Why the Difference between the UK and other Countries? 93 5 Constitutional Narratives 94 6 Political Style, Culture and Traditions 98 7 Summary and Conclusions 98

9 LEGTMACY N EUROPEAN ADMNSTRATVE LAW CHAPTER 15 Legitimacy and Accountability: ntegration and Compensation Athanasios Gromitsaris ntroduction: Structures and Descriptions of European ntegration Structural Tensions Descriptions and Normative Standards 305 Thesis The nstitutionalization of Cooperation, Competition and (Mutual-) Control of the Agents of European ntegration nstitutional Balance and Hierarchy of Norms Comitology and Delegated Legislation Creation of nstitutions nformality and llegality 3^ 4 nstitutionalization of the Tension between nformation and Resources Uncertainty and Dependence nformation Gathering and Monitoring Management of Resources, Budgets, and Government Control 3^ 5 Generating Confidence through nstitutionalizing Distrust Mutual and Reflexive Supervision Processes 3 > 5. Rules on Correct Rule Application EMU Conditionality, 'Vincolo Esterno' and Conflict of Legitimacies 35 6 nstitutionalization of the Tension between Person and nstitution Rationales for Participation Feelings of Right and Legal Enforceability Union Citizenship: A Surprise Package Public Scrutiny and 'Transcendence' 39 7 The Role of Judicial Review Principles Necessary in a Democratic Society Keeping Authorities within Legal Bounds Proportionality: The EU as an Amorphous Sand-Heap of Market Participants? The Tension between Market-Oriented Liberties and Democratically Legitimated National nstitutions Rights to effective Judicial Remedies for the Citizen in the Context of ntegrated Administration Legal Practical and nstitutional Rationality Practical Rationality of Legal nstitutions and Rationality of Sciences 338

10 CONTENTS 8. Agent Sensitive nstitutions and nterest Group Representative Democracy nstitutional Linkages and the Channels of Democratic nput in the EU Calculability and External Enforcement of Expectations Accountability and Law Administration as Market Economy and Routinized Charismatic Authority Conclusion: Belief in the Rational Resolvability of the Guiding Tensions Underlying the Nexus of Law and Politics as Legitimacy Hierarchy, Heterarchy, Synarchy, Polyarchy and Polycephalous Physiognomy of the EU Accountability to 'idees directrices', and Guiding Tensions 347 RESULTS AND PERSPECTVES CHAPTER 16 Comparative Perspectives of Administrative Legitimacy Matthias Ruffert The Legal Meaning of Legitimacy in Administrative Law Legitimacy in Legal Terminology Legitimacy between Constitutional and Administrative Law Legitimacy and its Plethoric Terminology 355 Legitimacy, the Democratic Principle, and beyond Legitimacy and Forms of Government 356. Legitimacy and the Democratic Principle Democratic Legitimacy Strict Approaches Participatory Broadening Legitimacy beyond Democracy The Role of the Output Good Administration Some nstances of Compromise Unfolding Legitimacy in Administrative Law Legitimacy Controlled Conclusion 360