Courts

The preceding chapter considered the foundations of judicial review in the EU. The discussion now turns to the EU Courts. The way in which the principles of review have developed has been affected by the jurisdictional divide between the CJEU and GC, and between these Courts and national courts. It will be argued that a necessary condition for an effective regime of judicial control is the existence of a rational judicial architecture, embracing the CJEU, GC, national courts, and agency boards of appeal.

Process

This chapter is concerned with process rights, and should be read in conjunction with the previous chapter on access. The sources of process rights are, as will become clear from the subsequent discussion, eclectic. Treaty articles, EU legislation, the Union Courts, the European Ombudsman, and the Commission have all contributed towards the enumeration of such process rights, drawing inspiration from national legal systems. The discussion that follows takes a broad view of process and addresses the topic from three perspectives.

Precautionary Principle

Many of the principles of administrative law discussed previously will be familiar to scholars from their domestic jurisprudence. The precautionary principle differs in this respect. While it is found in some legal systems, such as Germany, it is nonetheless relatively novel as a precept of administrative law. It has, however, become of increased importance in EU law.

Comitology

The discussion thus far has focused on centralized and shared administration as ways in which EU policy is delivered. This chapter focuses on Comitology and the making of secondary norms, which normally take the form of rules. This cuts across the previous analysis, in the sense that rulemaking is a feature of both direct and shared administration. The structure of the discussion is as follows. It begins with analysis of the problem presented by rulemaking, and the necessity for any polity, including the EU, to administer an area through secondary norms of a legislative nature. This is followed by an historical overview of rulemaking in the EU and the role of Comitology therein. The focus then shifts to detailed evaluation of the approach to rulemaking in the Lisbon Treaty.

Open Method of Coordination

The preceding chapters have dealt with various methods of policy delivery in the EU, including centralized administration, shared administration, Comitology, and agencies. These methods differ, but they all are primarily based on traditional forms of EU law—regulations, directives, and decisions. This chapter deals with a rather different method of policy delivery, the Open Method of Coordination.

Access

The previous chapters were concerned with the foundations of judicial review and judicial architecture. The focus now turns to principles of administrative law that are relevant for the way in which policy is delivered by the EU.

Crisis, Reform, and Constitutionalization

The previous chapter considered the history and typology of EU administration. The present chapter focuses on the impact of resignation of the Santer Commission, which had profound significance for EU administration, and the controls to which it was subject. The resignation received front-page attention in the press, proof for those minded to believe it of the malaise which had long existed within that organization. Its downfall was prompted by the First Report of the Committee of Independent Experts. This was followed in quick succession by reforms instituted by Romano Prodi as the new President of the Commission, by the Committee of Independent Experts’ Second Report, by the White Paper on reform of the Commission and implementation of these reforms. An understanding of these developments is crucial in order to appreciate the current pattern of EU administration. This chapter will chart these developments leading to administrative reform, including the Financial Regulation, which established a constitutional framework for Union administration of the kind that had not existed hitherto. Subsequent chapters will analyse the provisions contained therein as they relate to different types of EU administration.

Remedies II: Member States

The previous chapter considered remedies against the EU. The discussion now turns to remedies against Member States. This is in certain respects a more complex topic because relief against Member States that violate EU law will normally be sought in national courts. The action will prima facie have to conform to national procedural and remedial rules concerning matters such as time limits, quantum of recovery, and the like. This raises the issue of the extent to which EU law imposes constraints on such national rules. This complex jurisprudence will be analysed in the first half of the chapter.

Foundations

The discussion thus far has considered the different ways in which the EU delivers policy. The focus has been on administration and law. In the second part of the book the focus shifts to law and administration, and an evaluation of the judicial doctrine that is of principal significance for EU administration and for the Member States where the latter act within the scope of EU law. It is important to pause and reflect on themes that cut across and are equally pertinent to the analysis of particular aspects of review. This chapter will, therefore, lay the groundwork for the ensuing discussion.

Equality

The previous chapter analysed the role played by rights in the EU legal order and their impact on judicial review. This chapter is concerned with equality and the way in which it has been shaped by Union legislation and the Courts’ jurisprudence. The principle of equality and the prohibition of discrimination are found within a number of Treaty articles, but the ECJ held that these were merely specific enunciations of the general principle of equality as one of the fundamental principles of EU law, which must be observed by any court.