740 15 th Street NW Washington, D.C. 20005 www.abanet.org/adminlaw American Bar Association Section of Administrative Law and Regulatory Practice Study of Administrative Law of the European Union The project is supported with a major grant from.. the. Trade Delegation. of the. European..... Commission to the United States Private Contributions Platinum Sponsor Citizens for a Sound Economy Gold Sponsors Foley & Lardner LLP Ropes & Gray LLP Steptoe & Johnson LLP Wilmer Cutler Pickering Hale and Dorr LLP Silver Sponsors Suffolk University Bronze Sponsors Morgan Stanley American Chemistry Council
ABA Study of Administrative Law of the European Union Background In this interconnected world, the impacts of administrative processes in other countries transcend their national boundaries, affecting US citizens, US economic interests, and US regulatory interests. In particular, the European Union s legislative and regulatory initiatives acutely affect US interests because of the magnitude of US- EU trade and investment. Yet most US business people and their US lawyers have little knowledge or understanding of the European Union or its regulatory systems. They have even a poorer understanding of how to effectively participate in EU administrative proceedings or how to comply with EU regulatory directives. Moreover, the mutual lack of understanding about each other s system has led to barriers to cooperation and communication between the US and the EU and exacerbated trade tensions and hindered commercial activity. Agencies in the US and the EU are attempting to harmonize their rules and increase the transparency of each other s processes so their citizens can effectively participate in the rulemaking processes of the others. It is therefore becoming even more critical that US citizens gain better knowledge and understanding of EU administrative law. Objectives The American Bar Association Section of Administrative Law and Regulatory Practice in collaboration with the sections on International Law; Antitrust Law; Environment, Energy and Resources; and the Judicial Division, are co-sponsoring a European Union Administrative Law Project. The objectives of the project are to: Educate lawyers, businesses, and the broader public concerning current EU administrative law and regulatory practice; Encourage and facilitate constructive discussions between US and EU lawyers and interested members of the public; and Produce scholarly studies that will serve as a basis for trans-atlantic dialogue and for suggesting changes to EU or US law that may be desirable. To accomplish these objectives, the Project will engage in the following core activities: 2
Development of a Treatise: First and foremost, we intend to create a practical resource about EU administrative and regulatory law for use by American private practitioners, government lawyers, and academic lawyers. Their respective interests are as follows: Private practitioners have clients affected by EU law. They may need to know more about, or wish to participate in, the development of EU s because they do business in EU member states. They may simply want to learn how to obtain documents from an EU agency. Governmental lawyers are finding themselves more frequently involved in collaboration with their EU counterparts. They may, for example, need to have a better understanding of EU law while they work with EU agencies on harmonization efforts. Academic lawyers may wish to research EU law for comparisons or the development of alternatives to current US procedures At this time, no such treatise exists, and basic unfamiliarity of the EU administrative systems among US lawyers can be a substantial impediment to work with or research on the EU. Conferences and Symposia: The Project will hold conferences and symposia at which recognized private sector experts, government officials, and affected parties will participate. These conferences will be an integral part of the Project s overall effort to facilitate discussions between US and EU lawyers, generating greater mutual understanding of each other s systems and perhaps some agreement on features of an optimal administrative system. Analysis and Recommendations for Change: The Project will seek to encourage a scholarly analysis of the EU administrative law system, emphasizing traditional features of due process and transparency. One product of this analysis may be the development and adoption by the ABA of resolutions for changes to US or EU law or practice. While most useful to practitioners in the regulatory field in the short term, the Project has the potential to illuminate the broader policy issues currently being discussed in the regulatory arena (such as transparency and public participation). It will also inform the growing debate in academic circles over emerging international and even global forms of governance. But its central focus remains production of a highly useful resource for those needful of, or interested in, understanding EU administrative law. Project Description Statement and Background Reports: The central objective of the Project is the development and publication of a Statement of European Union Administrative Law, which will present the general principles and practices that govern the conduct of the EU s principal administrative functions in a highly accessible format. This treatise will be organized in a manner similar to A Black Letter Statement of Federal Administrative Law, prepared by the Administrative Law and Regulatory Practice Section and published in the Administrative Law Review in winter 2002. The EU Statement thus will facilitate useful analytical comparisons between the US and EU 3
administrative law systems. (At the Appendix are the cover and table of contents of A Black Letter Statement of Federal Administrative Law.) The EU Statement will also include background material on the structure of the EU and the complicated relationship between the Union and its member states with respect to adopting, implementing, and enforcing regulatory programs. The EU Statement will consist of the following parts: Introduction (primer on EU institutions) Adjudication (individual administrative decisions) Rulemaking Availability and Scope of Judicial Review Transparency and Data Protection Oversight of the Administrative Process Background reports for each of the subject areas to support the Statement will also be prepared and published. Background reports supporting A Black Letter Statement of Federal Administrative Law were based on similar subcategories of US administrative law. An example of one of the background reports can be found in A Guide to Federal Agency Adjudication, published by the Section in 2003. The EU project background research is organized on a sectoral level with field/sector reports being prepared. The subjects of the sectoral studies are presented in Figure 1. Rulemaking Procedures Competition rules Food safety Telecommunications Environmental Workplace (i.e. labor and employment) Financial services Figure 1 Sectoral Studies Adjudication Procedures Competition law rulings Specific food safety determinations State aid determinations Imposition of international trade remedies Pharmaceutical licensing Issuance of trademarks International Symposia: To build expertise, the Project will host a series of trans- Atlantic symposia to discuss and contrast US and EU administrative law systems. At least one will be held as a prelude to any drafting of the treatise to allow for full explication of the key issues and for an exchange of views across the Atlantic. Likewise, a similar trans-atlantic symposium will follow circulation of the next to final draft of the treatise to allow for review and comment on the draft. Library: The Project will assemble a considerable library of primary and secondary materials on the legal and administrative systems of the EU and make as many of them available through the ABA website as copyright and technology limitations allow. Organization Chief and Assistant Chief Reporters: The Chief Reporter for the project is George Bermann, the Walter Gellhorn Professor of Law, Jean Monnet Professor of European Union Law, and Director of the European Legal Studies Center at Columbia University School of Law. His two Assistant Chief Reporters are James T. O Reilly, Professor of Law, University of Cincinnati, and Charles H. Koch, Jr., Professor of Law, College of William and Mary. 4
Research Teams: Two teams have been assembled. One consists primarily of Brussels-based US practitioners, who will produce the sectoral volumes. The Chief Reporter also has developed support at the crucial Commission levels (e.g., the Secretariat, the Legal Service) and with members of the European bar. The second team consists of European and American administrative law scholars. Their responsibilities include (1) producing the non-sectoral background reports, if any, (2) reviewing and assisting in production of the draft sectoral reports, and (3) assisting the Chief Reporter and Assistant Chief Reporters in producing the general Statement. Advisory Groups: For each of the five areas of study (adjudication, rulemaking, judicial review, transparency and data protection, and oversight) there is a US advisory group made up of US practitioners and academics, and for each of the areas of study where there are not sectoral reports there would be a European advisory group including practitioners, academics, and EU personnel. Steering Committee: The project has a Steering Committee comprised of members of the Sections and liaisons from the European Commission and US agencies. Steering Committee (2004) Neil Eisner, Assistant General Counsel for Regulation and Enforcement. U. S. Department of Transportation Office of General Counsel 400 7th Street SW, C-50 Washington, DC 20590 Phone: (202) 366-4723 Em: neil.eisner@ost.dot.gov Steering Committee Chair George A. Bermann, Chief Reporter Walter Gellhorn Professor of Law Jean Monnet Professor of European Union Law & Director, European Legal Studies Columbia University School of Law 435 West 116th Street New York, NY 10027 Phone: (212)854-1258 Em: gbermann@law.columbia.edu Project Director Peter KJ Berz, First Secretary Trade Delegation of the European Commission to the United States 2300 M Street, NW Suite 300 Washington, DC 20037 Phone: (202) 862-9587 Em: peter.berz@cec.eu.int Daniel Cohen Office of General Counsel U.S. Department of Commerce Office of General Counsel 14th and Constitution Ave, NW Room 5876 Washington, DC 20230 Phone: (202) 482-4144 Em: dcohen1@doc.gov The Honorable Edwin L. Felter Colorado Division of Administrative Hearings 1120 Lincoln St. Suite 1400 Denver, Co. 80203 Phone: 303-764-1417 (direct) Em: ed.felter@state.co.us Judicial Division William F. Funk, Professor Lewis & Clark Law School 10015 Terwilliger Blvd Portland, OR 97219 Phone: (503) 768-6606 Em: funk@lclark.edu C. Boyden Gray, Partner Wilmer Cutler Pickering Hale and Dorr 2445 M Street NW Washington, DC 20037 Phone: (202) 663-6056 Em: anne.kienlen@wilmer.com 5
Theodore W. ( Ted ) Kassinger Deputy Secretary U.S. Department of Commerce 14th & Constitution Ave, NW Washington, DC 20230 (reach through Dan Cohen) Eleanor D. Kinney Hall Render Professor of Law Indiana University Law School -- Indianapolis 530 W New York St Indianapolis, IN 46202 Phone: (317) 274-4091 Fax: (317) 274-3955 Em: ekinney@iupui.edu Section Chair Elect Kathleen Kunzer Senior Director, International Affairs American Chemistry Council 1300 Wilson Blvd Arlington, VA 22209 Phone: (703) 741-5177 Em: Kathleen_kunzer@americanchemistry. com Abbott B. (Tad) Lipsky, Jr., Partner Latham & Watkins, LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004-1304 Phone: (202) 637-2200 Fax: (202) 637-2201 Email: tad.lipsky@lw.com Section on Antitrust Law Randolph J. May Senior Fellow and Director of Communication Policy Studies The Progress and Freedom Foundation 1401 H Street NW Washington, DC 20005 Ph: (202) 289-8928 Em: rmay@pff.org Section Chair Lisa J. Savitt, Partner Blank Rome LLP Suite 1200 600 New Hampshire Ave, NW Washington, DC 20037 Phone: (202) 772-5823 Em: savitt@blankrome.com Section on International Law 6