Towards an Integrated Administration
Edited by Herwig C.H. Hofmann and Alexander H. Türk
Chapter 10: Participation and Participation Rights in EU Law and Governance
Joana Mendes*1 1. INTRODUCTION Participation is ubiquitous in EU law and governance. Participatory phases are found in decisional procedures defined in many regulations and directives, be these an obligation impinging upon Member States, be they a procedural duty of EU administrative bodies, either determined by the EU legislator or self-imposed. Participation can, therefore, be seen as a dominant feature of the governance arrangements which have developed over the last decades.12 However, since participation has manifold meanings, the extent of this pervasion may be deceptive. This is the case if one intends participation as the procedural intervention of natural and legal persons whose substantive rights and interests are potentially affected by a Community regulatory measure, with a view both to ensuring the procedural protection of those rights and interests and to attaining an accurate representation of the factual situation based on an exact representation and consideration of the interests involved on the part of the deciding body. This chapter argues that there is a mismatch between, on the one hand, the powers exerted by the European administration, particularly taking into account the effects which they may have in the legal sphere of persons concerned, and, on the other, the procedural guarantees which are afforded to them under the right to be heard as this has been developed by the European Courts (ECJ and CFI). Considered the core of the rights of the defence, the right to be heard, as it has been shaped by the Courts derives from an adversarial,...
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