The ‘Common Core’ of administrative laws in Europe: A framework for analysis

2019 ◽  
Vol 26 (2) ◽  
pp. 217-250
Author(s):  
Giacinto della Cananea ◽  
Mauro Bussani
Keyword(s):  
Comparative Method ◽  
Administrative Law ◽  
Legal Systems ◽  
The European Union ◽  
Institutional Practices ◽  
Administrative Procedure ◽  
Administrative Action ◽  
History Of ◽  
The Common ◽  
Synchronic Comparison

This essay presents the framework for new comparative research in the field of administrative law, with a focus on the European legal area. It is divided into two parts. In Part I, we argue that some difficulties that beset the traditional uses of the comparative method are even more evident when considering the field of administrative law. Accordingly, a methodological shift is needed in more than one sense. First, instead of focusing on either similarities or differences between national legal systems, both analogies and differences must be considered. Second, legal comparison, properly intended, differs from a mere juxtaposition of national administrative laws. Third, the overemphasis on legislation is even less justified in the field of administrative law, which calls for careful attention to judicial and institutional practices. In this perspective, we briefly illustrate the methodology grounded in a factual approach that has been developed in the field of comparative private law in the last few decades and the way we are going to apply it into our research on administrative law, viewed through a procedural lens. In Part II we discuss the main pillars that characterize our research concerning administrative law: first, its goal, which is the advancement of knowledge; second, the choice to focus on administrative procedure, instead of judicial review of administrative action; third, the methodology, which combines a synchronic comparison, concerning modern legal systems, with a diachronic comparison, that is to say a retrospective on some aspects of the history of legal institutions that look particularly relevant; and fourth, the choice of the legal systems selected for comparison, including a variety of states and a non-state, the European Union.

Judicial Review of Administration in Europe

2021 ◽  
Author(s):  
Giacinto della Cananea ◽  
Mauro Bussani
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Common Core ◽  
Legal Systems ◽  
The European Union ◽  
Council Of Europe ◽  
Administrative Action ◽  
Core Method ◽  
The Common ◽  
The Comparative Study

This book is about judicial review of public administration. Many have regarded this as dividing European legal orders, with judicial review of administrative action in the general courts or specialized administrative courts, or with different distance from the executive. There has been considerably less comparison of the basic procedural and substantive principles. The comparative study in this book of procedural fairness and propriety in the courts reveal not only differences but also some common and connecting elements, in a ‘common core’ perspective. The book is divided into four parts. The first explains the nature and purpose of a comparison to understand the relevance and significance of commonality and diversity between the legal systems of Europe, and which considers other legal systems which are more or less distant and distinct from Europe, such as China and Latin America. The second part contains an overview of the systems of judicial review in these legal orders. The third part, which is the heart of the ‘common core’ method, contains both a set of hypothetical cases and the solutions, according to the experts of the legal systems selected for our comparison, to the cases. The fourth part serves to examine the answers in comparative terms to ascertain not so much whether a ‘common core’ exists, but how it is shaped and evolves, also in response to the influence of supranational legal orders as the European Union and the Council of Europe.

Administrative Procedure and Judicial Review in the European Union

2021 ◽  
pp. 47-49
Author(s):  
Matteo Gnes
Keyword(s):  
European Union ◽  
Judicial Review ◽  
Eu Law ◽  
The European Union ◽  
Administrative Procedure ◽  
Administrative Action ◽  
National Courts ◽  
The Common ◽  
Procedural Requirement ◽  
The Eu

This chapter assesses administrative procedure and judicial review in the European Union. The requirement of judicial oversight of administrative action, which results from the common constitutional traditions of the Member States of the EU, is a general principle of EU law, and it is applicable both to proceedings before the Court of justice and before national courts, when EU law is invoked before them. The EU courts carry out a generalized review on any binding acts. Although there are certain differences between acts that may be challenged according to the different remedies provided by EU law, in order to be challengeable, the acts must fulfil several conditions. The most important are: they must be binding and produce legal effects, be definitive and be taken by EU institutions in the exercise of their competencies. Article 263 TFEU provides that the acts of EU institutions may be annulled on grounds of 'lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers'. Acts or failure to act may give rise to the liability of EU institutions.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

2021 ◽  
pp. 41-72
Author(s):  
Angela Ferrari Zumbini
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Affairs ◽  
Main Theme ◽  
Administrative Procedure ◽  
Administrative Action ◽  
General Principles Of Law ◽  
Liberal Approach ◽  
The Right

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

scholarly journals Made in Luxembourg: The fabrication of the law on jurisdiction of the court of justice of the European Union in the field of the Common Foreign and Security Policy

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Security Policy ◽  
Legal Protection ◽  
Case Law ◽  
The European Union ◽  
Court Of Justice ◽  
Domestic Courts ◽  
Foreign And Security Policy ◽  
History Of ◽  
The Common

The article provides an analysis of the case law of the Court of Justice of the European Union on the interpretation of Articles 24 TEU, first paragraph, second subparagraph, and 275 TFEU governing the question of the Court’s jurisdiction in the field of the Common Foreign and Security Policy (CFSP). The article first describes the background of those provisions as they resulted from the Convention on the Future of Europe and the 2003-4 and 2007 Intergovernmental Conferences and then compares the Court’s understanding of its jurisdiction to the drafting history of the provisions concerned. The main conclusion of the study of the case law suggests that the Court views its jurisdiction over the CFSP more broadly than the jurisdiction envisaged by the drafters of the Treaties. In particular, the Court both interprets the exclusion from its jurisdiction of acts based on the Treaty’s CFSP provisions in a narrow fashion and is prepared to review the legality of CFSP acts not only through direct actions but also through references for a preliminary ruling. However, the article argues that the provision of adequate legal protection in the field of the CFSP necessarily requires both the Court of Justice and domestic courts of the Member States to play their respective roles.

scholarly journals Role of the Philosophy of Law in the process of unifying the legal systems of the members of the European Union in the context of the Common Framework of Reference Project v

2021 ◽  
Vol 39 (68) ◽  
pp. 463-475
Author(s):  
Fursa Svitlana Yaroslavivna ◽  
Kukhniuk Dmitriy Vladimirovich ◽  
Bondar Iryna Vadymivna ◽  
Maliarchuk Liubov Sergiivna ◽  
Derii Olena Olexsandrivna
Keyword(s):  
European Union ◽  
The State ◽  
Necessary Condition ◽  
Legal Systems ◽  
The European Union ◽  
Philosophy Of Law ◽  
Strategic Direction ◽  
Common Framework ◽  
The Common

The study discusses the role of the philosophy of law in the process of unifying legal systems through the prism of the principles of the Draft Common Framework of Reference in Europe. The application of the philosophy of law in unification processes is also a necessary condition for the implementation of these processes about human rights and the sovereign interests of the State, which implements the unification of the legal order. Hence, the issue of European integration determines the strategic direction of the state, and this leads to the unification of law. The study aims to identify the role of the philosophy of law in the processes of unifying the legal systems of the European Union and its importance in the use of principles in these processes, justifying the need to use the philosophy of law in any process of transformation. It is concluded that the philosophy of law is a bridge harmonized with the legal sphere of operation of both individual states and supranational associations.

Comparative Contract Law

2006 ◽  
pp. 898-936 ◽  
Author(s):  
E. Allan Farnsworth
Keyword(s):  
Common Law ◽  
German Law ◽  
Contract Law ◽  
Legal Systems ◽  
The European Union ◽  
European Contract ◽  
American Law ◽  
The Common ◽  
General Contract Law ◽  
European Contract Law

This article presents an overview of comparative contract law. It reveals a number of differences between civilian legal systems and the common law, and also between French and German law as two main exponents of the civil-law tradition and, to some extent, even between English and US-American law. The same is true of other major issues in the field of general contract law that have not been touched upon. But there is a gradual convergence. This convergence is due to developments in all of the four legal systems covered in this article: English, US-American, French, and German law. And it has enabled scholars from around the world to elaborate an international restatement of contract law (the UNIDROIT Principles of International Commercial Contracts) and scholars from all the member states of the European Union to formulate a restatement of European contract law (the Principles of European Contract Law).

Judicial Review of Decisions

2019 ◽  
pp. 145-164
Author(s):  
John Baker
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Present System ◽  
Habeas Corpus ◽  
Law System ◽  
The Face ◽  
History Of ◽  
The Common ◽  
Common Law System

This chapter is concerned with the history of mechanisms for reviewing judicial and administrative decisions. It begins with the writ of error, which was confined to errors on the face of the record of a court of record and therefore not an appeal as now understood. But informal methods were developed for reserving points to be discussed by all the judges of England, usually in the Exchequer Chamber or Serjeants’ Inn. Appeals in a wider sense began in Chancery and were not brought into the common-law system till 1875. The ‘prerogative writs’ of prohibition, habeas corpus, certiorari, and mandamus, enabled the King’s Bench to review inferior jurisdictions and also the exercise of power by officials and ministers. It is explained how this grew into the present system of administrative law. There is also a brief account of the rise of tribunals, and how their decisions came to be reviewable.

Understanding Administrative Law in the Common Law World

2021 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Administrative Action ◽  
The Core ◽  
The Common ◽  
The Law ◽  
Pluralist Approach ◽  
Core Features

This book has three goals: to enhance understanding of administrative law; to guide future development of the law; and to justify the core features of the contemporary law of judicial review of administrative action. Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland and New Zealand, Dr Daly develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review, everything from the rule against bias to jurisdictional error to the application of judicial review principles to non-statutory bodies. Addressing this wide array of subjects in detail, Dr Daly demonstrates how his pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance academics’, students’, practitioners’ and judges’ understanding of administrative law. Furthermore, this pluralist approach is capable of guiding the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. Dr Daly closes by arguing that his values-based, pluralist framework supports the legitimacy of contemporary administrative law which although sometimes called into question in fact facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

Reshaping Europe

2020 ◽  
Keyword(s):  
European Integration ◽  
Security Policy ◽  
Driving Forces ◽  
The European Union ◽  
Reform Initiatives ◽  
Mikhail Gorbachev ◽  
Single European Act ◽  
Foreign And Security Policy ◽  
History Of ◽  
The Common

How can the new dynamic in European integration politics during the second half of the 1980’s be explained? What were the driving forces behind the Single European Act, the achievement of the Single Market, the Schengen agreement, the EC’s expansion to the south, and the new steps towards Monetary Union and the Common Foreign and Security Policy? In this book, using numerous discoveries from the archives, historians from 12 countries show how the European Community reacted to the challenges of globalisation and the reform initiatives by Mikhail Gorbachev. In doing so, they write a new chapter in the history of European integration: the emergence of the European Union. With contributions by Marta Alorda, Andrea Brait, Frédéric Bozo, Eric Bussière, Deborah Cuccia, Alice Cunha, Anjo G. Harryvan, Michael Gehler, Gilles Grin, Maria Eleonora Guasconi, Georg Kreis, Wilfried Loth, Marco Lovec, N. Piers Ludlow, Simone Paoli, Nicolae Paun, Kiran Klaus Patel, Daniela Preda, Frederike Schotters, Jasper Trautsch, Jan van der Harst, Laurent Warlouzet

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