Sabino Cassese
Towards a more integrated European area of administrative justice*
Contents:
1. Administrative integration and the tensions surrounding judicial cooperation
2. How to improve judicial integration
3. Two obstacles: the great divide and legal nationalism
* Contribution to the “Assises de la Justice” Conference, European Commission,
Directorate-General Justice, Brussels, 21-22 November 2013.
1
1. Administrative integration and the tensions surrounding judicial
cooperation
The process of administrative integration in Europe is multi-directional:
a.
vertically, national administrations are subject to European Union law
and instrumental to its implementation;
b.
horizontally, national administrations are obliged to open their doors to
one another, adopt uniform rules and policies, engage in convergence;
c.
in both vertical and horizontal terms, administrative agencies are slowly
becoming part of a unitary, but composite, new structure, with an overall
obligation to cooperate.
In areas as diverse as agriculture, food security, the environment, banking,
electricity and gas, national and European agencies co-regulate, with the former
acting as agents of the latter.
Does this process also include courts? Is it possible to integrate national
judicial review into a European judicial framework?
I see a tension here: on one hand, judicial cooperation is difficult to achieve; on
the other, judicial cooperation is necessary.
While the European Union has long experienced co-regulation, co-adjudication
is impossible. While cooperation among national administrative agencies and
between national and European administrative agencies requires the adjustment of
policies and decisions, cooperation among courts cannot be achieved through an
adaptation of policies; indeed, courts do not operate according to policies, but decide
2
independently, on a case-by-case basis. Any attempt to oblige or promote cooperation
thus risks undermining judicial independence. It is, therefore, necessary to find
different, peculiar means for judicial cooperation.
Judicial cooperation among administrative courts at the national and European
levels is, moreover, necessary for many reasons. First, administrative justice is based
on universal principles that are part of the foundations of democracy: the right to
have administrative decisions reviewed by an impartial body; the right to be heard by
that body and to submit claims in an adversarial procedure; the right to receive a
reasoned judgement; the right to appeal the judgement. I advise to not concentrate
only on the European Union, but to pay attention to the global space, where a global
administrative law is already well-developed.
Second, at the European level, if legal orders are integrated and converge
towards certain basic common standards, administrative justice too must converge.
Substantive and procedural rules must proceed at the same pace. Otherwise, there is
the risk that while common rules may be achieved, those same rules will be subject to
divergent interpretations and applications. If it is true that ubi ius, ibi remedium
(where is a right, there should be a remedy), it is necessary to improve coherence and
consistency in the application of European Union law, including by means of judicial
cooperation. For example, the right to a good administration enshrined in Article 41
of the Charter of Fundamental Rights cannot be interpreted according to differing
standards in the different legal systems.
3
It is important to remember that, according to the Treaty, “Member States shall
provide remedies sufficient to ensure effective legal protection in the fields covered
by Union law”.
Third, national courts are a means for attracting societal cooperation; they can
make the implementation of European Union law a collective effort, because they act
as “fire alarm systems” and associate individuals in the construction of an “evercloser union”. Therefore, judicial integration is crucial to the European construct, as
has been demonstrated by the leading role played by the European Court of Justice,
and can compensate for the so-called democratic deficit.
Fourth, national administrative and civil courts play an important role in
implementing European Union law: when they act in their capacity as European
Union courts, they indeed act as “watchdogs” for its implementation.
2. How to improve judicial integration
The Treaties opened the path to judicial integration by introducing the
preliminary reference procedure, with the aim of ensuring the uniform interpretation
of European Union law. However, this integration is based on spontaneous, voluntary
initiative.
Judicial integration cannot be left in the hands of the European and national
courts alone. If judicial integration is left to the courts’ voluntary cooperation, there
will necessarily be asymmetries and imbalances in the application of European Union
law. Courts are re-active, not pro-active bodies.
4
It is, therefore, crucial to discover how judicial integration can be achieved not
only by means of courts’ spontaneous and voluntary actions, but also through
exogenous promotion by the Commission and the European Parliament.
Efforts towards such discovery have been made since 1975, when judicial
cooperation was placed on the European agenda. However, exactly whether there is
and can be a policy for justice, how judicial cooperation differs from
intergovernmental cooperation, the meaning of the notion of “minimum rules” and
what judicial cooperation should ultimately achieve, are as yet unclear.
“Judicial dialogue” is a frequently used term. However, it is ambiguous,
inadequate, and even erroneous, since it is unlikely that courts will establish a true
dialogue.
The starting point for improving judicial integration should be Article 6 of the
Treaty on European Union. This provision recognizes that the principles of the rule of
law are principles “common to the Member States”.
The first step towards improving judicial integration should be the introduction
of more detailed administrative law principles at the European level, and, in
particular, to regulate administrative procedures.
Administrative proceedings and judicial review are parts of a unitary sequence:
when the procedure is regulated, judicial review will necessarily take that regulation
as the fundamental yardstick for reviewing legality. Procedural legality is the driver
of substantive legality.
5
The regulation of administrative proceedings can improve the convergence and
integration of national judge-made law, as national courts – acting both as national
and as European judges – will be bound to apply European procedural justice law. It
is important to remember that freedom grows in the interstices of procedure.
Efforts to regulate the European administrative procedure by issuing measures
similar to the 1946 United States’ “Administrative Procedure Act” are already under
way. However, this regulatory intervention should not be limited to European
decision-making procedures, but should also be applied to the many “mixed” or
“composite” proceedings involving the Commission and national administrations.
The concept of procedural autonomy is a thing of the past.
Second, while it may be impossible to establish an integrated regulatory body
for administrative justice in Brussels, a permanent “forum”, where national and
European judges could exchange their views freely, could be created. Such a “forum”
could also promote the exchange of national judgements, the translation of important
national judicial decisions, and the approximation and convergence of review
standards.
To mention one example, I take the case of the British proposal to restrict
standing to reduce the number of claimants bringing judicial review proceedings
(“Judicial review proposals for reforms” Consultation Paper, December 2012). The
proposal does not extend to the challenges raising environmental issues, which are
governed by European Union law and the Aarhus Convention (para 81). However,
what is the situation for other challenges under European Union law? Would the
6
proposal yield an unreasonable asymmetry with the procedural law of other Member
States? This is an issue worth discussing at the European level.
Third, in the context of a cooperative effort, the “forum” could also promote
integration by agreement. It could favour the conclusion of agreements such as the
“Joint communication” issued by Presidents Costa and Skouris on 24 January 2011.
This communication was directed at ensuring the “greatest coherence between the
Convention and the Charter” and established that a “parallel interpretation” of the
two instruments was useful.
3. Two obstacles: the great divide and legal nationalism
Closer integration must overcome several hindrances. Two of these, in
particular, are significant.
The first is the great divide in Europe between monistic judicial systems (such
as the British legal system, where there is only one judge for civil and administrative
matters) and dualistic judicial systems (such as the French system, where there are
separate courts for civil law and administrative law questions). This divide has had
enormous importance in the past, in shaping the different administrative systems.
Today, however, it has lost much of its weight. On the British side, administrative
matters are now resolved by specialized judges; on the French side, the administrative
judge has achieved a degree of independence that is not inferior to the independence
of civil and criminal judges. Moreover, from a functional point of view, judges from
both monistic and dualistic systems adjudicate cases with similar yardsticks of
7
legality, referring – for example – to the criteria of reasonableness and
proportionality.
The second obstacle is the idea that each national judiciary has its supreme
court, and that this court is final – that, therefore, the European courts only have a
subsidiary and limited role. Today, national Constitutional Courts have begun to refer
cases to the European Court of Justice for preliminary rulings, and the European
Court is slowly taking on the role of court of last instance on many matters. It is,
therefore, time to abandon judicial nationalism and to remember that justice is no
longer an attribute of sovereignty.
8