EU Law Through the State Lens

The conceptual apparatus that frames our knowledge of EU administrative law today has its origins in the legal scholarship that established a new field in the turn of the 1980s and during the 1990s. This scholarly field owes much of its uncontested existence to a series of major handbooks, which systematized materials that hitherto had been sparse and scattered, first in German, then in English and later still in French. They helped transposing to EU law a conceptual apparatus that owed much to the state setting of administrative law, notwithstanding all the acknowledged specificities of the EU. Several decades later, in a much-changed European Union, we continue working with the institutes of public law that were created then – chiefly among them, general principles of law. Understanding the method that underpinned that construction is an essential first step of a much-needed process of rethinking the fundamentals of EU law. Revisiting the past may provide some clues as to the role legal scholars can and should have in a period in which we may be witnessing an epochal transition in Europe.¹⁾

Core to establishing a field of EU administrative law was the transposition to the EU polity of the binary liberty-authority according to which the rights and legally protected interests of individuals – citizens – require protection from unilateral exercises of public authority that may restrict or curb those rights. This binary had grounded general principles of national administrative law and became then also a referent to the development of EU administrative law. It was a ‘glue’ that held together different general principles of administrative law. Through the case law of the Court of Justice, these provided a common reference to the law that governed different policy areas. The interaction between the case law of the two European Courts and the doctrinal constructions of legal scholars was fundamental to this development. Comparative law was pivotal in this regard.

In the case law, comparison had been crucial to developing those general principles and, in general, in filling the lacunae that the Courts detected in EU law. As is well known, the legal solutions that stemmed from comparison ideally fulfilled two conditions: they should be the best suited to the objectives of EU integration – the Court was, like any institution, bound to contribute to their realization (Article 4 EECT; Article 13 TEU) – and they should be acceptable in the national legal orders, even if shared only by a relatively small number of Member States. This meant that general principles of law must both be rooted in the “constitutional traditions of the Member States” and be suited to the specifics of the Union, to its sui generis character. There is a core tension between these two poles which resulted in lack of clarity as to how those commonalities were established and given new meaning in EU law. This tension and ambiguities, combined with the Court’s legal duty to decide cases and avoid non liquet meant that the Court had a great liberty and creativity in setting the content of those general principles of EU law. The Court needed to adjudicate concrete cases, and the identification of lacunae required that it “[construct] the meaning of terms, [define] general principles and […] their relative importance.”²⁾ Comparison within this framing and limits was the motor to develop the legal principles of public law that anchored the development of EU law.

Enter the legal scholars. They were neither bound by a legal mandate to decide, nor by the objectives of the Treaty. The benefit of hindsight has allowed us to see how much decades of legal scholarship in EU law were committed to the development of a legal order in need of perfectioning and to support the construction of Europe, not only of its law. This ethos has been very much present in the work of leading scholars who engaged in a scientific task of ‘discovering’ or setting the grounds for a new field of scholarship. We have inherited many categories of thought from this way of approaching EU law, some of which have perhaps obscured rather than enlightened our knowledge – an assessment possible only with the benefit of hindsight. The assessment that, arguably, we must do today.

The work of Jürgen Schwarze is paradigmatic in this regard. In a magum opus written in 1988, Schwarze set out to “establish … the extent to which a European administrative law can now be said to exist” and to assess “what possibilities and limits condition its further evolution”. To navigate what he was identifying as European administrative law, he chose an object – the judge-made principles – and a method: he would establish “a doctrinal content of the case law” by resorting to comparison.

The justification for the choice of object implied a normative assessment of the performance of the EU institutions and of the quality of the law that they produced. In Schwarze’s view those general principles were “the core and the point of crystallization for European administrative law” and contrasted with the quality of written norms that governed the activity of the supranational administrative institutions. These were neither suitable for comparison nor for anchoring the development of European administrative law: they were “generally thin” and “sketchy” and written law “barely [contained] sufficient legal rules to ensure administrative implementation” of EU law. Written law reflected the weaknesses of the Council’s decision-making capacity. By contrast, the Court had been given “a powerful position” in the Treaties, and until then, had exercised its function of “ensuring the protection of the law in an exemplary fashion”. When Schwarze was writing, the Court had recently characterized the Community as “a community based on the rule of law” with a constitutional charter and had issued important judgments on the judicial protection of the individual against acts of the Member States breaching Community law. These were the foundations to establish the general-administrative-law perspective that Schwarze was looking for. But, at the same, these foundations implied transposing to EU administrative law the same premises and normative foundations of State administrative law: an administrative law anchored on the relationship between the exercise of public power and the protection of individual rights. The general principles that Schwarze chose – including legal certainty, the protection of legitimate expectations, proportionality, the right to be heard – conveyed that dialectical dynamic which would hence define what administrative law would be like at the European level. It is a fact that the Court’s case law had been directed at securing individual protection before the exercise of public authority. Yet, this was only one feature of a possibly emerging legal order (the weaknesses of the Council that Schwarze identified would have likely pointed a very different path). Crucially, the dialectical relationship between the exercise of public authority and the protection of the individual rights of citizens was hardly a structural feature of EU law. In EU law, certainly at the time, most relationships established between the EU administration and individuals who were not civil servants were mediated by national legal orders. EU-level administrative action was, in essence, directed at national administrations.  Administrative collaboration was a crucial feature of Community law, not ignored, but neglected in Schwarze’s work, as were the specificities of the EU administrative institutions. Arguably, the weaknesses of the Council that Schwarze identified would have been better suited to understand the specificities of the EU legal order. But that would have hindered comparison as a method of establishing “the extent to which a European administrative law can now be said to exist” and of assessing “what possibilities and limits condition its further evolution”, which were his goals.

The method he followed was functional. The task of the comparatist was to find legal principles that may appear in different legal systems under different doctrinal categories, forms and concepts, but have the same function. Function was the common denominator that could ensure comparability between the national and the European objects. The justification for this choice is as noteworthy as the justification for the choice of object of research: the problems in want of a solution were the same in the different legal orders. The political and institutional differences between national and supranational public entities were not an obstacle to comparison. In this regard, Schwarze’s citation of Zweigert and Kötz’s functionalism is telling: those differences invited the comparatist to “eradicate the preconceptions of his native legal system”; “great differences in […] historical development, conceptual structure, and style of operation” of legal systems do not preclude the similarity of the problems and of the solutions found in the different legal systems. Schwarze acknowledged that structural differences between the Community and national legal orders impeded certain parallelisms (in particular, a democracy-inspired principle of legality was absent in the Community). But two fundamental questions remained unanswered. First, could such differences justify the use of the same concept and the presumption that it had an administrative law content? Second, which adaptations could be required by the specific institutional reality to which administrative law principles applied? A judge acting within the constraints of her function may avoid these questions, but a scholar making a systematic analysis of different sources can hardly do the same.

The choice of object and of method hid this difficulty. Both supported the assumption that doctrinal administrative law – as much as the case law that grounded it – consisted of a law aimed at ensuring the effectiveness of administrative action and the protection of the citizen against restrictions imposed by the public authority. No matter the empirical reality to which this framing was applied, that there were “citizens” to protect via EC administrative law became a fundamental premise of administrative law scholarship. The legal protection of those affected by the authority of the EU administration became the core ethos of EU administrative law, even if this provided only a partial and limited view of this law. Language and legal reasoning had a performative (constitutive?) capacity. Why should this be the central concern on which to build an emerging field of law, if binary relationships and instances where individuals were affected by EU public power without the intervention of States were rare? This question, too, remained unanswered.

Through scholarship, legal principles acquired a triple function. First, they supported the creation of a general part of EU law that integrated law’s lacunae; they completed the “unscheduled incompleteness of the Treaties”, in the apt expression used by Schwarze to denote a sense shared by many. Secondly, legal principles had a polity-building function, which was strongly influenced by state law because of functional comparison: they tackled the problem of a one-sized public power that could limit the rights of citizens. They made it possible to place the “sovereign (i.e. public-law) relationship between the administration and the citizen” (again, Schwarze’s words) at the centre of the investigation. Thirdly, they were also a legitimacy asset: legal principles “[improved] the legitimacy of the Community in the eyes of the citizens and thus politically [promoted] integration to a significant extent” (still, Schwarze’s words, again expressing a tenet widely shared in EU law). Like the Court, the scholar participated in the task of European integration.

Now, why does this matter in 2024? This is the crucial “so what” question. As alluded to in the beginning of this text, the fundamental changes in European integration since the sovereign debt crisis (including responses to the digital world of technology and climate change, and the changes in how EU law relates to that mythical entity “the market” through state aids and resilience programmes (NGEU)) require us to revisit the foundations of that conceptual apparatus and to query if and to which extent it remains “fit for purpose”. Unlike fundamental challenges placed early on to EU constitutional law (think of the debate on the existence of a demos), EU administrative law has not been challenged in its premises to the same degree. Critical voices were, arguably, not sufficiently heard. In 2024, EU administrative law scholars must confront: how far the presence of the “citizen” as a main referent for the development of its core doctrinal categories was suitable to the law to which it applied when it first appeared in this guise; how it applied to a changed reality and which implications it had for different groups; how far it is justified that it continues to apply today; which legal, political and socio-economic implications and varied declinations does it have in different sectors of EU law. A “genealogical critique”, as proposed by Neuvonen, is very much due. Because of the functions of general principles of EU administrative identified above, this will also be an exercise in questioning the limits of anchoring the legitimacy of the EU’s authority in its law.