Editorial

EU administrative law is in many ways one of a kind: it faces many idiosyncratic problems, given the genesis of the EU and its nature. Sometimes, however, it is the similarity of challenges at the supranational and Member State level that is more striking. At both levels, traditional topics of administrative law such as the design of procedures, access to justice and delegation of public tasks, have regularly been revisited in recent years. These new developments have often been incited by concerns related to sustainability goals and the increasing complexity of society, e.g. because of technological developments.

In this issue, Alessia Monica’s article on State-owned maritime concessions in Italy offers a thought-provoking discussion on the impact of the Services Directive and, more generally, the economic freedoms on a part of the tourist sector in Italy. The article discusses Italy’s ongoing struggle with the consequences of the Court of Justice of the European Union (CJEU)’s judgement in joined cases C-458/14 and C-67/15. In this judgement, the Court found that the automatic extension of existing authorisations of State-owned property for tourist and leisure-oriented business activities, without any selection procedure for potential candidates, was contrary to Article 12 of the Services Directive. If Article 12 would not to be applicable because the natural resources involved would not be ‘scarce’, the court found such an automatic extension to be incompatible with Article 49 of the Treaty on the Functioning of the European Union (TFEU), in so far as a cross-border interest can be identified.

Article 49 TFEU and the Services Directive aim to avoid discrimination on the basis of nationality and to foster competition. They oblige public authorities to grant exclusive rights to the public domain that will be used for business activities for a limited duration only, allowing others, at regular intervals, to make a better offer in order to benefit from its economic value too. An automatic extension of such authorisations without any transparent selection procedure is, therefore, problematic. The author, amongst other things, questions the Italian Council of State’s Plenary Assembly’s view that all Italian beaches generate a ‘cross-border interest’, meaning that entrepreneurs from outside Italy would also be interested in developing economic activities thereon. Monica argues that the lack of a case-by-case analysis risks disregarding the cultural and local traditions and social concerns with respect to small businesses. It is interesting to note the Plenary Assembly’s suggestion to include, in the selection criteria for maritime concessions, factors such as professional experience and know-how, as well as ‘the project’s ability to interact with the overall tourism and hospitality system of the local area’. The author refers to Article 12.3 of the Services Directive, which allows public concerns such as social policy objectives to be taken into account in establishing the rules for the selection procedure. The question arises, nevertheless, if this is really a solution for Italian (small) businesses who risk losing the concessions that they have held for a long time. It seems rather unlikely that the CJEU would allow these public concerns to be translated into criteria that would automatically favour (the incumbent or other) local enterprises. The critical point, however, the author clarifies towards the end of her contribution, is to avoid an ‘unregulated opening that could favour large economic powers, or even worse, subjects related to organized crime’ and to ensure ‘that the beach, as a ‘public good’, is used with due respect for the environment and for the benefit of the community’. In the conclusion, the author claims that ‘some protection for outgoing operators is to be ensured’. However, the question remains: how this can be achieved without violating EU law?

The CJEU’s judgement on the maritime concessions was not the first in which Italy received a sign from the Court stating that it cannot give locals a more favorable treatment in the tourist sector. In its judgement of case C-399/01, the Court ruled that, Italian local or decentralized authorities could not reserve advantageous rates for admission to e.g. museums for people above a certain age to Italian nationals or residents. This was considered a violation of Articles 12 and 49 of the Treaty Establishing the European Community (EC).Case C-388/01 Commission of the European Communities v Italian Republic [2003] ECLI:EU:C:2003:30. This judgement thus concerned discrimination against the beneficiaries of the services (tourists), not the providers.

Monica’s contribution reveals that the debate in Italy is heated and that a lot is at stake. In my view, this may also be a symptom of a much broader challenge, i.e. that of keeping tourism in Europe socially sustainable. The question arises whether EU law gives enough room to Member States, such as Italy, which suffer from overtourism in many places, to deal with the various problems that this generates. Examples of these problems are, inter alia, the pressure on public space available to locals, the disappearance of local businesses offering goods and services to locals instead of tourists or ‘tourist shops’ that are not owned by locals, nor sell products produced locally or with an authentic link to the destination.See e.g. Bertocchi, Dario and Visentin, Francesco, ““The Overwhelmed City”: Physical and Social Over-Capacities of Global Tourism in Venice” (2019) 11 Sustainability 6937; Horváth, Domokos Benjamin, “A New Era for Urban Tourism? The Case of Venice, Italy” (2018) 9 Almatourism 13. Perhaps it is time for the EU and, more specifically, the European legislature to pay more attention to possibilities of countering these negative externalities of (mass) tourism.

In a second article, Luca De Lucia analyses and assesses the extent to which the new Aarhus Regulation has solved a number of issues that caused the previous version to be contrary to the Aarhus Convention. Whereas the issues of (1) the limited number of persons that qualified to ask for a review on the basis of the Regulation (only some NGOs) and (2) the limited number of acts that could be challenged, were addressed (largely) satisfactorily, that is not the case for the issue of the internal review. The problem with this internal review is that it lacks impartiality, the author explains, since the same authority as the one who took the initial decision, will again be asked to decide on the matter. The chance that this institution will review its initial decision seems rather small, since that would lead to loss of face. Hence, the institution or body has a moral interest not to reconsider its decision, making the mechanism ineffective. The author makes a constructive suggestion, proposing that the internal review would be made more impartial by obliging the authority to seek the opinion of an impartial and independent, permanent body. Other solutions that may seem more straightforward, such as allowing for the original act to be challenged before the EU courts after the internal review or entrusting administrative review to an impartial body (not the initial decision maker), cannot be implemented because primary Union law will not allow for them. The article thus clearly reveals how the Aarhus Convention interferes with some of the treaty makers’ fundamental choices with respect to legal protection against the institutions.

The EU legislature is not the only one struggling to comply with Aarhus though, especially when it comes to access to justice. Only last year, the Netherlands learned that it made access to judicial proceedings, falling within the scope of the Aarhus Convention, too difficult by demanding that NGOs, which are part of the ‘public concerned’, first participate in the procedure preparatory to the contested decision, even though that condition did not apply where such organisations could not reasonably be criticised for not having participated in that procedure.Case C–826/18 Stichting Varkens in Nood [2021] ECLI:EU:C:2021:7. In Belgium, a number of cases with similar stakes (all concerning the same legislative provision recently introduced in Flemish legislation) are currently pending before the Constitutional Court.Cases currently pending under nos 7638, 7644, 7656, 7683, 7698 and 7701. These cases reveal that complying with Aarhus is still not evident in many legal systems, since the Convention challenges traditional ideas on legal standing and judicial review’s place in the overall system of protection against the administration.

Yet another interesting analysis of a topical issue is found in the case note by Mateus Correia de Carvalho and Alex Soroiu on the General Court’s ruling in case T-185/19, which concerns access to harmonised standards. The authors are critical of the court’s ruling, arguing for an approach in which the public functions that European Standardization Organizations fulfil would be recognised. This entails consequences on the level of accountability and transparency. The analysis is sharp, with the authors refuting each of the court’s core assumptions which led to the judgement. And rightfully so, since this is no futile debate. As Annalisa Volpato reminded us on our REALaw blog in October 2021, it is the core principles of European public law that are at stake here.Annalisa Volpato, ““Part of EU Law” but only partially: The issue of accessibility of harmonised standards”, (REALaw.blog, 6 October 2021) <https://wp.me/pcQ0x2-7F> accessed 18 July 2022. Luckily, the topic of private law-making has recently been receiving quite some attention from scholars, formulating suggestions to reconcile the promises held by this model in terms of expertise and efficiency and the public law concerns involved.See e.g. Cedric Jenart’s recently published book Outsourcing Rulemaking Powers

(Oxford University Press 2022).

Finally, Jud Mathews wrote a review on Matthias Ruffert’s Law of Administrative Organization of the EU. This is a book that will definitely be on my shelf for a very long time to come. Administrative organisation has often been disregarded as an autonomous topic of study not only in comparative and European administrative law, but also in many national legal systems.Inspired by Zijlstra’s work in the Netherlands (Sjoerd Zijlstra, Bestuurlijk organisatierecht,

(2^nd edition, Wolters Kluwer 2019); I recently edited a monograph on the Belgian law on administrative organization (Stéphanie De Somer (ed), Bestuursorganisatierecht (die Keure 2020)). The past few years have seen the publication of a number of high quality monographs on EU administrative organisation,See e.g. Merijn Chamon’s thorough work on EU Agencies: Merijn Chamon, Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press 2016). but Matthias Ruffert’s general work is still more than welcome. The review reveals one particular feature in the book that appeals to me a lot: the starting point that, ‘in a democracy, the mode of legitimation needs to be, at root, democratic’. Jud Mathews praises the book for many reasons. I, for one, hope that it will raise awareness of the importance of administrative organisation, which is all but a ‘neutral’ topic, since choices of organisation can have a major impact on many public law values that we hold dear in modern societies.

Stéphanie De Somer Associate Professor at Universiteit Antwerpen (Belgium) and Associate (practicing lawyer) at Van Olmen & Wynant (Brussels, Belgium).