Speaking Notes 10 November 2014Professor Jacques Ziller

EP JURI Committee information on ReNEUAL Model Rules on EU Administrative Procedures

Jacques Ziller

Professore ordinatio di diritto dell’Unione europea

Università degli Studi di Pavia

Strada Nuova 65, I – 27 100 PAVIA

Jacques.ziller@unipv.it

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Presentation will address 2 questions :1. Why an EU Administrative Procedure Law?

2. What can be done on the basis of the Lisbon Treaty?

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Introduction to the ReNEUAL Model Rules /

Book I – General Provisions• A. Introduction to the ReNEUAL Model Rules ................................................... 2• Executive summary of the introduction ........................................................ 2• I. Background and mission of the ReNEUAL project: EU administrative• procedures and constitutional principles ................................................. 4• II. Law of administrative procedure in the EU – characteristics and• challenges .............................................................................................. 8• III. Models for the codification of EU law on administrative procedure? ..... 11• IV. Legal bases for EU codification ............................................................ 14• V. The six Books of the ReNEUAL Model Rules on EU Administrative• Procedures ........................................................................................... 21• VI. The approach....................................................................................... 24

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1) Why an EU Administrative Procedure Law?a) Translation of constitutional values into real-life of the EU institutions, bodies, offices and agencies• protection of the rule of law (such as legality, legal certainty,

proportionality of public action and protection of legitimate expectations)• democratic transparent Union definition and protection of rights of

participation and access to information, equality of citizens in their access , openness and subsidiarity…• Principle of good administration Article 41 Charter

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ARTICLE 41 Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. 2. This right includes:  (a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;  (b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;  (c) the obligation of the administration to give reasons for its decisions.  3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.  4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

+ ARTICLE 42Right of access to

documents

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1) Why an EU Administrative Procedure Law?b) Needs arising from the present state of EU law applicable to administrative procedures• fragmentation into sector-specific & issue-specific rules / procedures• some procedural elements addressed only partially within policy-

specific rules• gaps in regulation unspecified general principles of law to fill void• rules on administrative procedures for the implementation of EU

law developed dynamically and experimentally• multi-jurisdictional nature (EU & member States’ law) of many

procedures & pluralisation of actors involved

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1) Why an EU Administrative Procedure Law?c) Lessons to be learnt from member States’ and other experiences in the codification of administrative procedure law• National codifications • (E 1889 ; A 1925 etc.; D 1976 etc.) also US 1946; F 2015• different as to depth and coverage

• no single model is transferable as such• codifications have not led to augmentation of litigation nor to

freezing the rules and principles

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d) Impact assessment for the EP resolution: Key findings • wording of binding law provisions lacks the

clarity and precision of Code of good behaviour• Not all differences indispensable consequence

of objective differences from sector to sector• important and underestimated issue :

availability of non-binding codes & documents in all EU languages

• EU AP Law would help to establish a single easily identifiable and comprehensible set of rules and standards, that could increase guarantees for citizens, economic operators, NGOs and other legal persons across the board

1) Why an EU Administrative Procedure Law?

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2) What can be done on the basis of the Lisbon Treaty?

a) The legal issue of appropriate legal basis• Article 298 TFEU1. In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration.2. In compliance with the Staff Regulations and the Conditions of Employment adopted on the basis of Article 336, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish provisions to that end.• specific legal bases for certain transversal issues: 322 TFEU (financial regulations), 15

(access to document), e 16 (data protection)• possible use of a joint legal basis, but• legal bases for sector-specific regulation that provide for the use of a special legislative

procedure (e. g. 182 TFEU [specific programmes for research and technological development], or 192 TFEU [certain measures in the field of environment]) or sector specific objectives (e.g. consumer protection or environment)

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2) What can be done on the basis of the Lisbon Treaty?

b) The political issue of the scope of application of an EU regulation on administrative procedure law• different interpretations of art 298 TFEU are possible, but• unrealistic reaching agreement in Council if rules were also to apply

to Member States’ authorities• specific matters need the issue of co-administration to be adressed

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2) What can be done on the basis of the Lisbon Treaty?

c) ReNEUAL’s choice: • drafting rules ‘as if’ the issues were solved:• If agreement on content of rules, legal basis issue more easy to

solve• provisions could also be used as a type of ‘stand by codification’

or as a ‘boilerplate’ to be supplemented with sector specific norms in policy-specific legal acts

• Limiting the scope of application as a first step and as far as possible

oThank you for your attention!