Editorial
Editorial
A peculiar feature of the lawyer’s work is what has been called the coming and going of the gaze between general and particular statements. This notion has been expressed differently regarding methodological and theoretical aspects of the law. Regarding the former, it has been particularly fruitful. For instance, the methodology for the application of legal rules has been famously described as going from the norm to facts – and coming back to the norm.Karl Engisch, Logische Studien zur Gesetzesanwendung (3rd edn, Winter 1963) 15. The academic methodology is also marked by the coming and going of the lawyer’s look between specific legal rules and decisions, on the one hand, and general doctrines and background concepts that help us to understand and improve the former, on the other.Eberhard Schmidt-Assmann, Das allgemeine Verwaltungsrecht als Ordnungsidee (Springer 2006) 8-10. As for theory, a widespread strategy to cope with the complexity of particular areas of law is to identify the conflict interactions underlying them, as well as the trade-offs reached by particular rules, decisions or doctrines.See, for example, Cass R. Sunstein, Adrian Vermeule, Law & Leviathan (Harvard University Press 2020). The lawyer’s gaze also comes and goes between the poles of those tensions.
In the case of European administrative law, one of those tensions is the relationship between integration and autonomy – or expressed differently: between unity and pluralism. The concept of Europeanization reveals a path to explore these tensions.JH Jans, S Prechal, RJGM Widdershoven (eds), Europeanisation of Public Law (2nd edn, Europa Law Publishing 2015). Europeanization of domestic administrative laws does not only unfold through binding rules and principles that impose on the States the obligation to shape their legal orders in a certain direction. This is the most apparent and best-explored dimension of Europeanization, in which notably EU law induces the transformation of national systems, restricting the room for States’ autonomy in order to protect its own authority and effectiveness. Sometimes, Europeanization unfolds more softly, though, like when those rules and principles lack legally binding force, or when – even if they have it – they are implemented by national authorities in areas lying outside the scope of EU law.
Margrét Vala Kristjánsdóttir’s article on services of general interest illustrates another form of this subtle, non-compulsory Europeanization: namely, the use of concepts, doctrines, and regulatory tools originating in EU law to deal with problems arising in the production, interpretation, or implementation of national law. Her thesis is extremely suggestive. The criteria that EU law puts forward to define the notion of service of general interest and its various manifestations, as well as to determine the reach of the relevant EU rules, can also be used to handle a specific problem of Icelandic administrative law: namely, the identification of those public functions that, despite being performed by private operators under a services contract, must remain subject to certain general principles arising from national administrative law. The author proposes to use EU law to answer this purely domestic legal question. The fact that the national legal regime of service allows us to label it as a service of general interest under EU law – and specifically one of the various manifestations thereof –, might also lead us to see it as a public function under Icelandic administrative law, as well as to conclude that it would fall under the scope of those general principles of administrative law even when it is being carried out by a private undertaking. Margrét Vala Kristjánsdóttir deals with a specific problem of the national legal order, but her thesis admits being escalated.
The second article of this issue focuses on the implementation of the proportionality principle in a particular area of Swedish public law, such as the issue of children care orders in cases of neglect. The source of proportionality – and therefore of Europeanization – lies here in Article 8 of the European Convention on Human Rights, which asserts the fundamental right to respect for family life. Katarina Alexius’s approach to this topic let us assess another point in the tension between unity and pluralism, which displays a different face of Europeanization. On the one hand, Swedish administrative and judicial authorities must abide by the principle of proportionality when taking measures that may interfere with the fundamental right to family life, such as compulsory care orders in cases of neglect. Just as it has been the case in other States subject to the Rome Convention, this leads to a process of compulsory Europeanization that reduces the diversity of national legal orders.
On the other hand, Katarina Alexius shows how this process also provides national authorities with an opportunity to improve their behaviour not only in terms of European law but also from the perspective of the domestic legal order. Proportionality may help to improve national legislation and practices of both administrative and judicial authorities because it furthers the expansion of decision-making structures that enable a fairer and more transparent balance between the opposing interests that lie within this area of national law. Such an improvement might have two sources: firstly, proportionality requires administrative and judicial decisions to be based on impact assessments that elucidate their potentially manifold, and sometimes contradictory consequences; and secondly, it also gives rise to balancing rules that increase rationality, transparency, and legitimacy of compulsory care orders. In sum, the principle of proportionality reveals itself here not only as an instrument for the judicial control of administrative action but also as a tool for the improvement of the quality of administrative decision-making.
Jaan Paju’s contribution explores the foundations, content, and implications of the Jobcenter Krefled caseCase C-181/19 Jobcenter Krefeld – Widerspruchsstelle v. JD [2020] EU:C:2020:794. – a preliminary reference that let the ECJ explore one scenario where the tension between integration and autonomy emerges in a very ostensible manner: what limitations do the fundamental freedoms impose on the Member States when it comes to awarding or denying social security and social assistance benefits provided for by national law to persons coming from other Member States? Recent case law of the ECJ has taken a restrictive approach towards the interests of European citizens who exercise their freedoms of movement vis-à-vis the autonomy of Member States to restrict transnational solidarity within social assistance. In Jobcenter Krefeld, the ECJ confirms this restrictive approach, while at the same time establishing somewhat different standards for European citizens depending on if they are active or inactive. Jaan Paju describes in detail the content of those standards. He explores where the difference between the two categories lies and describes the challenges and difficulties that all this brings about, especially regarding national administrative authorities in charge of three policy areas that tend to overlap each other – migration, social security, and social assistance.
The books section contains an exhaustive and sharpened annotation by Jacopo Alberti of Controlling EU Agencies – one of the most important books on European administrative law published last year.Miroslava Scholten, Alex Brenninkmeijer (eds), Controlling EU Agencies – The Rule of Law in a Multijurisdictional Legal Order (Edward Elgar 2020). The way the book approaches this topic also reflects one version of the previously mentioned coming and going of the lawyer’s gaze. The academic study of European administrative law rests on two complementary methodological premises that unfold in opposite directions: first, top-down deduction of descriptive and normative statements from constitutional principles, background doctrines, and general concepts; and second, bottom-up induction from various EU policy areas and sectors of administrative law. From the first standpoint, the book examines the requirements imposed on EU agencies by the several building blocks of the rule of law – accountability, judicial review, fundamental rights, transparency, etc. From the second perspective, the book offers a thorough examination of how those pieces work in a comprehensive selection of agencies acting within different EU policies – asylum, food, fisheries, aviation safety, financial services, etc. It is in view of the materials obtained through these two methodological strategies, that the editors offer a fair account of the issues that require doctrinal and political attention, as well as suggest ways to balance controlling mechanisms each with the other and fill gaps between agencies’ powers and controls.
Luis Arroyo JiménezProfessor of Administrative Law, Jean Monnet Chair of European Administrative Law, University of Castilla-La Mancha.