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Since the entry into force of the Treaty of Lisbon the passionate desire of the European Ombudsman and European Parliament is to create a regulation for administrative procedures for all European institutions. Unfortunately the legal basis for such a proposal is far from solid.

By Pieter van der Ploeg

Currently, rules on administrative procedures for EU institutions are scattered throughout a variety of sources of EU law. In primary law article 41 of the Charter of Fundamental Rights of the European Union establishes everyone’s right to fair and impartial administration. At the level of secondary law, administrative procedures are regulated per policy area in a variety of binding and nonbinding instruments. The prime example is Regulation 1/2003, which contains the Commission’s procedures on competition law. Last, the European Court of Justice has established several principles of good administration in its case law. So far the court has recognized the principle of non-discrimination, the principle of proportionality, the right to a hearing before an adverse decision is taken by a public authority, and several other principles.

 

Towards a regulation of administrative procedure

In 2012 the European Parliament conducted an investigation into the current state of affairs of administrative procedures in the so-called European Value Added Assessment on the Law of Administrative Procedure of the European Union. To the European lawyer the results sound familiar and reasonable. Rules on administrative procedures are fragmented, are often legally nonbinding, or are completely absent in some policy areas. A general European administrative procedures law would enhance legal certainty, create a clear set of rules of procedure for all European institutions, increase the effectiveness of the European administration, and, most importantly, enhance citizens’ trust in the European Union. Consequently, on 13 January 2013 the European Parliament adopted a resolution urging the Commission to draft a proposal on the matter.

However, is there a solid legal basis in the EU treaties for such a EU regulation for administrative procedures? The second paragraph of article 5 of the Treaty on the European Union (TEU) clearly states that the Union shall only act within the limits of the competences conferred upon it by the member states. In other words, the European Union needs an explicit legal basis in the EU treaties in order to adopt any form of legislation. The European Parliament claims to have found a legal basis in a combination of article 41 of the Charter of fundamental rights of the European Union and article 298 in the Treaty on the Functioning of the European Union (TFEU). The first paragraph of the first article is:

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

Everyone has the right to a fair and impartial European administration, however, article 41 of the Charter does not prescribe how this fairness should be regulated. Article 298 of the TFEU states:

1. In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration.

2. In compliance with the Staff Regulations and the Conditions of Employment adopted on the basis of Article 336, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish provisions to that end.

The second paragraph provides the much needed competence for the EU to adopt legislation. However, the aim of this competence is solely to regulate the relation between the EU institutions and the European administration. By its very nature a regulation concerning administrative procedures has both an internal and an external effect: it not only contains norms that regulate the decision-making process of the administration itself, but also norms of good administration that citizens can appeal to and norms which allow individual citizens to appeal unjust acts of the administration. There is considerable room for doubt as to whether article 298 TFEU actually provides a legal basis for a EU regulation on administrative procedure since the aim of the article is purely internal.

 

The case for a legal basis for the EU regulation for administrative procedures

The study carried out by the European Parliament (see above) fails to provide solid arguments with regards to the legal basis for a EU regulation for administrative procedures. An important argument is the interpretation of article 41 of the Charter by the Intergovernmental Conference in which a link between this article and article 298 TFEU is established. While the supposed weight of this interpretation may be brought into question, let us address the substance of the argument.  The conference does not explicitly mention that the two articles provide the basis for a European administrative act. It only states that both article 41 of the Charter and article 298 TFEU are connected. Furthermore, the conference does not mention the specific form in which these articles should be implemented. From the conference’s interpretation the conclusion therefore cannot be drawn that the manner in which European administrative law is currently shaped is insufficient.

A stronger argument is based on a systematic interpretation of the EU Treaties. According to this line of reasoning, the EU Treaty and the TFEU already have separate provisions for adopting internal rules of procedure and staff regulations. The scope of article 298 TFEU is wider than these provisions and therefore it provides a sufficient basis for an administrative regulation. Nevertheless, article 298 TFEU is still limited to establishing provisions aimed at the European administration. While the separate provisions on rules of procedure and staff regulations allow the EU institutions to regulate their own procedure article 298 TFEU allows the EU to regulate this matter across all EU institutions. The Commission, the Council and the European Parliament can regulate the entire European administration with one legally binding instrument.

This is not the first time that the European Union attempted to adopt an act with the best intentions in mind. In Opinion 2/94 the Court of Justice found that the (former) EC lacked the competence to accede to the European Convention on Human Rights. It took a formal change of the EU Treaties to gain this competence which is now codified in article 6 (2) TEU. Although the aim of the EU regulation for administrative procedures is admirable, this does not mean that the EU may adopt an act outside of the competences that have been conferred to it under the EU treaties. A change in the EU Treaties is a difficult process, but will provide a stronger legal basis for a EU regulation for administrative procedures.

Pieter van der Ploeg studied European law at the University of Amsterdam.

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