Mapping the European administrative space

Abstract

The European administrative space is the area in which increasingly integrated administrations jointly exercise powers delegated to the EU in a system of shared sovereignty. Its development has been evolutionary and fluid. Its structures have been established on a case-by-case basis in different policy areas. Despite this differentiation, the phenomenon of administrative cooperation has led to an ‘integrated administration’ in the form of an intensive and often seamless cooperation between national and supranational administrative actors and activities. This article explores the reasons for and consequences of this development.

Notes

1. As a general principle of public international law, territoriality limited the right of a state to exercise its sovereign powers outside its borders, thereby limiting government activity on foreign territory. As a principle of conflicts, territoriality became a connecting point for the applicability of public law to a real-life situation (Ress 1980).

2. However, the exact demarcation of the phases is relative to the goal to be achieved. Therefore, phase models in the literature, although generally following the same pattern, often differ considerably in detail and focus.

3. Case 26/62 Van Gend en Loos[1962] ECR 1, paras. 10, 12, 13; Case 6/64 Costa v ENEL[1964] ECR 585, para. 3. This was declared irrespective of the nature of the law which could be either primary treaty law, derived secondary law or individual decisions of administrative nature.

4. In Case 104/75 de Peijper[1976] ECR 613, for example, the ECJ limited the possibility of a member state to carry out an administrative procedure already undertaken in another member state. That would be a disproportionate limitation of the fundamental freedom. Where there were similar requirements for administrative procedures in two member states but no harmonisation, the ECJ went a step further and requested national administrations to make contact to establish the necessary information, Case 251/78 Denkavit[1979] ECR 3369. Case 35/76 Simmental I[1976] ECR 1871 provided for the obligation of a member state to accept the veterinary certificates of another member state in the case of an investigation procedure harmonised by a directive.

5. Case 120/78 Rewe Central AG (Cassis de Dijon)[1979] ECR 649, paras. 8, 14.

6. The trans-territorial effect of administrative acts arises from obligations of mutual recognition of administrative acts. This is necessary, for instance, to coordinate the administration of the single market by different national authorities. Prominent examples of this type of activity are the supervision of banking and insurance companies through host and home country administrations and the effects of the European arrest warrant.

7. Mutual assistance obligations are based either on Article 10 EC or are individually provided for in secondary legislation. One early example for rules for mutual assistance and horizontal exchange of information was created for tax authorities in Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the member states in the field of direct taxation (OJ 1977 L 336/15).

8. In reality, one of most important acts of secondary law creating standing reporting duties is the directive on information about technical standards and regulations. Member states and their standardisation bodies are under obligation to inform the Commission about any draft standardisation or technical regulation in areas which are not subject to harmonisation legislation. See Articles 1–2 and 8 of Directive 83/189/EEC of the European Parliament and the Council of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1983 L 109/8 amended by Council Directive 88/182, OJ 1988 L 81/75. The directive was replaced by Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ 1998 L 204/37 and amended by Directive 98/48/EC, OJ 1998 L 217/18 and others.

9. For example, Article 8 of the Directive 2002/3/EC relating to ozone in ambient air contains an information obligation both in the vertical and the horizontal direction for joint planning networks to avoid cases of trans-boundary ozone pollution. This contains information obligations by the member states' authorities vertically to the Commission and relevant agencies as well as horizontally to other member states' authorities which could be contributed to the causes or being affected by pollution. The information exchange leads to the creation and implementation of joint plans to reduce the production of ozone as well as emergency plans in case of an acute rise in ozone levels (Directive 2002/3/EC of the European Parliament and of the Council of 12 February 2002 relating to ozone in ambient air, OJ 2002 L 67/14).

10. The ECJ did not enter into an in-depth debate over the merits of subsidiarity related arguments–mainly due to respect for the legislative discretion of the Community legislator. See e.g. C-84/94 Working Time Directive[1996] ECR I-5755; C-233/94 Deposit Guarantee Schemes[1997] ECR I-2405; C- 376/98 Germany v EP and Council (Tobacco Advertising)[2000] ECR I-8419; C-377/98 Biotechnological Inventions[2001] ECR I-7079.

11. Instead, it is governed by general principles of law (De Bùrca 1999). General administrative legislation only exists in rudimentary beginnings, for example, in the form of the Comitology Decision (Council Decision 1999/468/EC laying down the procedures for the implementation of powers conferred on the Commission, [1999] OJ L 184/23 amended by Council Decision 2006/512/EC of 17 July 2006, [2006] OJ L 200/11, Council Regulation 58/2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes, [2003] OJ L 11/1), or the famous Regulation 1/58 on the language regime in the EC of 6 November 1958.

12. References can be found in Articles 10, 202 and 211 EC.

13. Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission, [1987] OJ L 197/33, Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, [1999] OJ L 184/23 amended by Council Decision 2006/512/EC of 17 July 2006, [2006] OJ L 200/11.

14. Especially with the new 2006 ‘regulatory procedure with scrutiny’ where increasingly also the European Parliament is involved in recourses. See Article 2 and 5a of the 2006 Comitology decision. The regulatory procedure with scrutiny has been inspired by the distinctions between delegated acts and implementing acts by the Treaty establishing a Constitution for the European Union.

15. In competition cases, see e.g. Article 7(2) of Council Regulation 1/2003, [2003] OJ L 1/1.

16. This is a requirement under the case law of the ECJ and CFI, see e.g. C-212/91 Angelopharm v Hamburg[1994] ECR I-171 and T-70/99 Alpharma v Council[2002] ECR II-3495.

17. This approach to legislation and delegation consists of a four-tier system. On Level 1, legislative measures are adopted by the Council and the European Parliament, focusing on the core political principles including the nature and extent of the implementing measures (Directives, which have been issued as Level 1 measures deal with markets in financial instruments (Directive 2004/39/EC, [2004] OJ L 145/1–44), market abuse (Directive 2003/6/EC, [2003] OJ L 96/16–25), prospectus (Directive 2003/71/EC, [2003] OJ L 345/ 64–89), transparency (Directive 2004/109/EC, [2004] OJ L 390/38–57) and financial services (Directive 2005/1, [2005] OJ L79/9). At Level 2, the implementing details of Level 1 are adopted by the Commission in co-operation with the EU Securities Committee (ESC), the European Banking Committee (EBC) for the banking sector and the European Insurance and Occupational Pensions Committee (EIOPC) under the regulatory procedure provided in the 1999/2006 Comitology Decision plus several advisory committees. At Level 3, the EU Securities Regulators Committee (ESRC) ensures the consistent transposition and implementation of Level 1 and 2 acts. At Level 4, the Commission, as guardian of the Treaties, pursues the enforcement of the adopted measures (see e.g. Lastra 2004; Moloney 2003).

18. The ‘new approach’ Directives provide only the essential requirements that products must comply with in order to benefit from free movement within the EC. CEN (Comité Européen de Normalisation), CENELEC (Comité Européen de Normalisation Electrotechnique) and ETSI (European Telecommunications Standards Institute) are charged with providing specific standards on the basis of such requirements. Even though they are not binding on the producer of goods, these harmonised Community standards are given a presumption of conformity, where they have been published in the OJ and transposed into national standards. See e.g. Article 5(2) of Directive 98/37 of the European Parliament and of the Council (on machinery), [1998] OJ L 207/1.

19. A prominent example for the latter is enforcement networks in the area of competition law with the ‘European Network of Competition Agencies'. See Council Regulation 1/2003, [2003] OJ L 1/1 and the Commission Notice on cooperation within the Network of Competition Authorities, [2004] OJ C 101/43.

20. Increasingly common are joint planning structures, in which EU law organises the Commission (and sometimes European agencies) together with national agencies into ‘planning networks’. An example of such a network is ‘Eionet’ (Council Regulation 1210/90 of 7 May 1990, [1990] OJ L 120/1 and Council Regulation 933/99 of 29 April 1999, [1999] OJ L 117/1, amending Regulation 1210/90 on the establishment of the European Environment Agency and the European environment information and observation network) (see for further reference Sydow 2003).

21. See e.g. the ‘European Regulators Group’ in the telecommunications sector (Decision 2002/627), the ‘Committee of European Securities Regulators’ in the financial services sector (Decision 2001/527 [2001] OJ L191/43) and the ‘European Competition Network’ (Council Regulation 1/2003 [2003] OJ L1/1).

22. See No 37 of the Presidency Conclusions of the Lisbon European Council on 23 and 24 March 2000 (http://www.europarl.eu.int/summits/lis1_en.htm#c).

23. See e.g. the European environmental network Eionet based on Council Regulation 1210/90, OJ 1990 L 120/1 and Council Regulation 933/99 of 29 April 1999, OJ 1999 L 117/1, amending Regulation 1210/90 on the establishment of the European Environment Agency and the European environment information and observation network. This network contains also actors both private and public from non-EU member states.

24. See e.g. in the matters of customs administration (Convention on mutual assistance and cooperation between customs administrations (Naples II)–Council Act 98/C 24/01 of 18 December 1997 drawing up, on the basis of Article K3 of the Treaty on European Union, the Convention on mutual assistance and cooperation between customs administrations, OJ 1998 C 24/1), the Dublin Regulation replacing the Dublin agreement on asylum matters (Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national [2003] OJ L50/1 implemented by Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/18 and Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted [2004] OJ L 304/12) the joint visa information system (Council Decision 512/2004/EC establishing the Visa Information System (VIS) [2004] OJ L 213/5).

25. In the words of the ECJ, the EC thus ‘created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the member states’. Case 6/64 Costa v. ENEL[1964] ECR 585, para. 8.

26. Due to a lack of a clear positive hierarchy of norms in the EC, the legislative phase for example cannot be neatly distinguished from the implementing phase. Also, experience in the implementing phase often results in agenda setting activities for further reform.