Matthias Ruffert, Law of Administrative Organization of the EU. A Comparative Approach

The administrative organization of the European Union grows more complex from year to year, thanks above all to agencification, the creation of decentralized agencies with responsibility for discrete policy portfolios. In his recent book, Professor Matthias Ruffert seeks to shore up the conceptual foundations of the law of the administrative organization of the EU. The book’s intervention is a surgical one, aiming not to completely overhaul the status quo, but rather to introduce ordering ideas and careful tweaks that can bring clarity and coherence to existing structures. The approach is comparative in that Ruffert looks to other administrative law systems for insights, and above all to the United States.

Although the United States at first glance might make an unlikely comparator for the EU, Ruffert offers cogent reasons to justify the choice. Perhaps most important, the administrative organization of the US, like the EU, is characterized by a high degree of disaggregation and pluralization. Rather than the Weberian ideal type of a well-ordered bureaucratic hierarchy, the US and the EU both feature a profusion of diverse institutions embedded in complex relational webs. Moreover, while constitutions in general have little to say about administrative organization, the US Constitution and Treaties of the European Union are especially unhelpful at settling organizational questions, leaving matters in both systems largely in the hands of political and judicial actors. At the same time, Ruffert is candid about the limitations and hazards of comparative work involving the EU. Comparativists have long warned against assuming that legal ideas or institutions will function the same when transplanted into another legal order, and even more caution is appropriate when the sui generis legal project of the EU is involved. Precisely because he knows and respects the limits of the comparative approach, Ruffert is able to deploy it to good effect. The book treats legal systems beyond the EU as hunting grounds for useful ideas, and it manages to assemble an extensive ‘toolbox’ (70) of concepts and structures relating to administrative organization while avoiding unduly confident claims about precisely how they would function in European soil.

The analysis follows a carefully designed structure. After an introductory chapter and another devoted to methodological issues, the three chapters at the heart of the book address administrative organization in general, control and oversight structures, and federalism issues, respectively. Each of these substantive chapters unfolds according to the same plan. To establish some benchmarks, for each topic Ruffert begins by exploring the state of the law in three prominent present or former EU member states: France, Germany, and the UK. The analysis then moves to the current state of EU law, and next turns to a detailed look at the law in the United States. Each chapter then concludes by reflecting briefly on possible fine-tuning improvements to EU law inspired by the legal arrangements in the other jurisdictions. Except for in the chapter devoted to federalism, which is considerably shorter than the other two, these final sections propose clarifying language for potential treaty revisions, although Ruffert argues that treaty revisions are not strictly necessary.

Laying groundwork for all that follows, Chapter 3 opens with detailed accounts of the law of administrative organization in France, Germany, and the UK. Although the administrative law in all three jurisdictions is already the subject of substantial comparative research, what distinguishes the present work is, first, the focus specifically on questions of administrative organization, and second, the clarity and authority of the depictions. Written with a sure feel for what makes each of these systems distinctive, these portraits have considerable stand-alone value apart from their contribution to the book’s EU-based research agenda and would make excellent assigned readings for a course in comparative administrative law. Further, Ruffert’s historically informed discussion of the EU’s administrative organization, with attention to how the successive waves of influence by different legal systems have left their mark, illustrates how EU administration has always borrowed and repurposed elements of domestic law.

Germany emerges from these accounts as the jurisdiction with the best developed theoretical infrastructure for conceptualizing administrative entities in legal terms. German law rigorously differentiates between the entities with legal personality and the institutions through which they act in a way that clarifies the legal analysis, for instance, where challenges to administrative actions are concerned. German law further differentiates among different kinds of legal persons within public law, each with a different set of legal features. While US public law is not so meticulous, the constitutional concepts of “office” and “department” do play important roles in how administrative organization is legally conceptualized in the United States. Ruffert finds in existing EU law the basic building blocks for a law of administrative organization commensurate with the complexity of the EU’s structures and tasks, if in inchoate form; what is required is clarification and refinement. Accordingly, he proposes revisions to the TFEU that would make explicit, for instance, where the capacity to create administrative entities lies (with the European Parliament and Council); through what legal means and procedure they may be established (by regulation, in accordance with the ordinary legislative procedure); and how the scope of their powers is defined (by the terms of the delegation of power).

Chapter 4 addresses mechanisms for holding the administration accountable. The book frames the control or oversight of administration as a key guarantor of the legitimacy of administration. While recognizing variations in precisely how administration is legitimated across the different regimes, the book operates from the perspective that, in a democracy, the mode of legitimation needs to be, at root, democratic. Hence, administrators must work in the service of – and, in an important sense, be answerable to – institutions or officeholders that ultimately answer to the people. Following the distinction between Rechtsaufsicht and Fachaufsicht in German public law, Ruffert further distinguishes between legal and policy oversight and makes the case for strengthening both in EU law. Specifically, Chapter 4 proposes that administrative bodies could be more accountable to the Commission for their application of law and to the European Parliament for their policy choices and concludes by offering open-ended treaty language that would ground those expectations in law.

It is perhaps worth adding a final note about Chapter 4. Appropriately for a book on administrative organization, the chapter focuses on the connections between institutions – specifically, between administrative entities and more democratically responsive bodies – and a complementary account of legitimacy rooted in electoral democracy. But strengthening the link to electoral democracy is not the only way to legitimate administration, as American administrative law shows. The exercise of administrative power in the United States is legitimated also by the use of participatory, deliberative decision-making processes and the reasoned, public justification of administrative choices. An exclusive focus on democratic legitimation is particularly parlous in the case of the EU, as the idea of a European “demos” remains deeply controversial, and the institutions associated with democratic accountability in the book – the European Commission and the European Parliament – are not widely perceived as having democratic bona fides on par with national political institutions. This is no criticism of the book, which is focused by design specifically on matters of organization, but instead a reminder that a more general account of the administrative functioning of the EU properly encompasses processes as well as organization and takes into consideration a broader set of possible legitimating narratives.

With respect to federalism, Chapter 5 draws lessons for the EU in the experiences of Germany and the United States. Again with an eye to preserving conceptual coherence in the face of institutional evolution over time, Ruffert stresses the importance of maintaining clear lines of responsibility and attributing institutions either to the EU or to the Member States. The alternative to clear lines, he warns, is the emergence of a nebulous, in-between level, a kind of administrative purgatory. Based on the experiences of Germany and the US, he also cautions about excessive reliance on EU-directed spending streams, which can create and yet conceal relationships of Member State dependence.

The book as a whole represents a significant achievement as well as a mile marker in the development of EU law. After years of growth, the administrative organization of the EU is perhaps ready for a phase of doctrinal consolidation and refinement. With a sophisticated grasp of the current state of EU law and a well-stocked toolbox of relevant concepts and structures, Ruffert charts what that next phase could entail. Those with an interest in the future of EU administration would do well to read the book.