Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 35: Adversarial Legalism and Administrative Law in the European Union
R. Daniel Kelemen European Union (EU) administrative law has tended to promote a juridification of administrative procedures across the Union. This tendency seems puzzling because for more than thirty years, the European Court of Justice (ECJ) has emphasized that member state legal systems enjoy ‘procedural autonomy’ when implementing acts of Community law, with regard to both the procedures involved and the remedies available to citizens.1 And yet, despite this supposed procedural autonomy, the EU has developed an extensive body of law guaranteeing European citizens a host of procedural rights and increasingly forcing national authorities to respect common rules of administrative procedure. This ‘Europeanization’ of administrative law has pressed member states to ensure greater transparency, accountability and access to justice in their administrative processes and has encouraged more searching judicial review of administrative action. The EU has developed an administrative law that applies both to itself when it directly implements Community law and to national administrations when – as is more common – they implement Community law on behalf of the EU. And ultimately, the impact of European administrative law at the national level extends beyond instances in which national authorities are implementing EU law. For once a procedural right or remedy is granted in EU-related matters, it becomes difficult to withhold that right or remedy in purely national matters. As Carol Harlow has put it, EU administrative law ‘creates pressure for judicial resolution of every problem and denies its rightful place to the extra legal tradition’ (2000: 74). She and other critics...
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