Editorial

When crises emerge, administrative law is often a first responder. Administrative law makes up much of the interface through which individuals, firms, and other organizations encounter governmental authority. Accordingly, as governments act to protect against emergent threats—whether to public security, the economy, the environment, or public health—they frequently act through the instruments and institutions of administrative law. Responding effectively to emergencies can mean adapting those instruments and institutions, or creating new ones. And so as administrative law responds to crises, crises can leave their mark on administrative law, in the form of innovations that may endure long after the exigencies of the moment have passed.

The two articles in this issue of the Review of European Administrative Law both address administrative law responses to crises. One crisis lies more than a decade in the past, but its effects on administrative law are ongoing; the other is all-too current.

That current crisis is, of course, the global COVID-19 pandemic. In 2020, REALaw issued a special call for papers examining COVID-19 response measures from national administrative law perspectives. Emilie Chevalier’s article The control of administrative inaction in the context of the COVID-19 health emergency in France: an inadequate response from the interim relief judge? is the second contribution selected from that call for papers to be published in the journal.

French administrative law has a number of tools to respond to public health crises such as the COVID-19 pandemic. While the use of such measures has long been subject to judicial review, interim relief—on the basis of a fundamental rights claim, or a handful of other grounds—has only been available in French administrative law for around two decades. In principle, one may request interim relief to seek not only the suspension of an administrative decision, but also an injunction ordering inert administrative authorities to take action. In her article, Chevalier examines how the French administrative courts and especially the Council of State have responded to applications for interim relief that challenge administrative inaction in the face of the COVID-19 crisis (for instance, an application by nurses seeking action to ensure the supply and distribution of protective equipment for health care workers). Chevalier concludes that the administrative courts’ far-reaching power to grant injunctive interim relief is well-adapted to meet the challenges of the COVID-29 crisis—but that the courts have been reluctant to make appropriate use of the power.

Francisco Hernández Fernández’s article The application of national law and composite procedures in the Single Supervisory Mechanism. Did the Court of Justice of the EU find a new Van Gend en Loos? takes stock of some administrative law innovations adopted in the wake of the 2008 financial crisis. In 2014, the Banking Union of the European Union established the Single Supervisory Mechanism (SSM), a hybrid dual administration formed by European and national banking authorities. Through the SSM, the European Central Bank (ECB) takes on supervisory responsibilities over National Competent Authorities (typically national banks) as well as less significant banks. The SSM gives rise to composite European-national procedures and makes it difficult to distinguish clearly between European and national law. This generates a dilemma for the EU legal order, as EU courts do not in principle apply national law, and yet strictly holding to this limitation opens a potential gap in the available judicial protection. Hernández Fernández reviews proposals for filling the gaps posed by composite procedures before ultimately endorsing an extension of the approach in the Rimšēvičs v Republic of Latvia judgment,Case C-202/18 Rimšēvičs v Latvia [2019] EU:C:2019:139. in which the Court of Justice of the European Union (CJEU) directly annulled a national measure deemed to threaten ECB independence. By reaffirming the centrality of effective judicial protection to the EU legal order, Hernández Fernández argues, the CJEU could hand down the equivalent of a new Van Gend en Loos,Case 26/62 Van Gend en Loos [1963] EU:C:1963:1. the landmark 1963 judgment establishing the direct effect of EU treaty provisions.

The two articles are complemented by two book reviews and a case note. Roberto Caranta reviewed a new volume edited by Pier Luigi Parcu, Giorgio Monti and Marco Botta titled EU State Aid Law: Emerging Trends at the National and EU Level. While Caranta would have liked to see the legal evolution of state aid more thoroughly addressed, on the whole the book earns high marks for the richness of the perspectives it brings together. Andrei Quintia Pastrana reviewed Administración y doctrina de los actos propios: Incoherencias aplicativas, by Álvarez A. Boto, which concerns actos propios, the Spanish doctrine associated with estoppel. While some have given up this principle for dead, Pastrana describes how Boto’s careful study demonstrates its continued vitality, particularly in newer governance contexts, such as data protection. R.S. Wertheim contributes a note on the CJEU’s preliminary ruling Stichting Varkens in Nood, Case C-826/18 Stichting Varkens in Nood and others v College van burgemeester en wethouders van de gemeente Echt-Susteren [2021], EU:C:2021:7. which concerns the application of the Aarhus Convention to Dutch administrative law. Under the ruling, the scope of the Aarhus Convention’s right of access to justice depends on the scope of public participation rights in national administrative law. Wertheim wonders whether the ruling might have the unintended effect of leading some member states to curtail their generous participation rights.

Jud MathewsProfessor of Law, Penn State Law School