ARENA Working Papers
WP 02/17

National Implementation of EU Law

and the Shaping of European Administrative Policy


Hans Petter Graver


1.      Introduction

There are no legal competencies in Community law to harmonise the public administration in the Member states, and there is as yet no policy of national public administration at the Union level. Nevertheless European policies impact on the national administrations. [1] Some studies even show that the administrative set-ups in Member States in many cases may be stronger affected by Europeanisation than the actual policies pursued. [2] Legal studies have long shown that there is even a general administrative law of the EU in the making, with harmonising effects on the Member states. [3]


Despite the fact of community influence, the prevailing view is still that �the distribution of administrative powers in the European Union rests on the presumption that EU law is administered by member states which act autonomously� and that �interference into that organizational autonomy is either punctual or indirect�. [4]


But is the influence from Community law only �punctual and indirect�? Do not community legislative measures and the requirements of their implementation by the member states on the contrary imply a more coherent administrative policy? Is what can be observed the mere restrictive and confining consequences of Community policies in different fields on national policy, or can it be described as the implications of a Community policy on public administration as such? In a certain sense, this is a heretical question because there is no community policy or competency regarding national administrative set-ups.


My object of study in this paper is two-fold: the development of an EU administrative policy as a by-product of development and implementation of union policies within other fields and the legal claims of EU legal measures on administrative structures and procedures within the Member states. My main theme is that lack of Union competencies on the field of administrative policy has not precluded the Union from drawing up measures which directly and indirectly affect the administrative policy of the Members states. The result is a Union policy on public administration not by comprehensive intent, but by default. Although a universal policy within the field is lacking, the result may be seen as a quite coherent body of principles and rules governing the administrative institutions and procedures of the member states.


I will demonstrate these claims by presenting the different ways which community law and policy instruments influences national public administration. I place these ways in three different groups. The first is the development of protection of individual rights based on the treaties and on general principles of law. The second are the requirements stemming form implementation and monitoring of secondary legislation. The third is the influence on general administrative law from measures within the different policy areas of the Union.


The method of my investigation is that of classical jurisprudence. By collecting and systematising the fragments of legislation and case-law regarding national administrative law, I seek to establish a coherent picture of legal requirements at the Union level requiring harmonisation og administrative law at the Member state level. In this I draw upon work done by scholars of administrative law and empirical studies of various policy fields. My contribution is the more modest one of piecing various contributions togther and to read them as if they were the result of a coherent policy of harmonisation. My ambition is to show that inputs from various fields of community law may be read in such a light. I do not claim that the different legal requirements are products of such a policy on the Union level. Neither do I claim that the pattern I present is the only pattern that may be constructed by induction from the existing legal texts, or indeed that it is necessary to establish any pattern at all. What I do want to show is that it is possible to establish a coherent picture that amounts to a program of harmonisation. The legitimacy of such requirements of harmonisation of national administrative law according to the existing distribution of competecies and tasks within the Union, and their actual effects on national administrative policy and set-ups I leave to future investigations.

2.      Legal background

It is said that no acquis communautaire (community legislation) exists for setting standards of horizontal systems of governance or national public administrations. [5] The policies of the Union or the Community do not include administrative policy, and the Community has no powers to harmonise administrative law in the member states. Consequently, there is no general community legislation applicable in the domains of public administration and administrative law.


On the other hand it is well known that community policies and legal measures have great implications for administrative law and arrangements in the member states. Most areas of government are covered or affected by acquis communautaire. Many community initiatives in specific sectors are driven by specific views on administrative policy with clear targets and contents. This is clearly seen within the competition-law driven liberalisation of previously monopolised sectors such as communications, transportation and energy, where community legal measures require specific, market oriented administrative reforms in the member states. Also the development of individual rights which currently is focused around the Charter of Fundamental Rights has clear implications for administrative policy. The Charter Articles 41 and 42 give the right to good administration and to access to documents. [6] The sum of such influencing forces, have led some to talk about emergence of a �European Administrative Space�, which mainly concerns basic institutional arrangements, processes, common administrative standards and civil service values. [7]


The horizontal influence of community law is not limited to recommendations and soft law. The aquis communautaire in many ways curtails and shapes the administrative structures of the member states. Important examples are individual procedural rights such as the right to be heard, to be provided with reasons and access to judicial review, substantial requirements such as interim relief, protection of legitimate expectations, proportionality, and state liability for breaches of community law and organisational requirements such as separation of administrative and commercial functions. Further requirements follow from the prohibition against misuse of a dominant position and prohibition against distorting competition by favouring certain undertakings. Community law and in particular competition and internal market rules apply regardless of the ownership of an undertaking (public or private) and therefore directly affect administrative arrangements as far as they have effects on the market. In addition, many of the measures under the specific policy areas concern administrative organisation and procedures in the member states. This is particularly the case in the sectors undergoing liberalisation and in sectors organising services of general interest. Important examples are the energy, communication and transportation sectors.


3.      Protection of individual rights

The story of developing community rights for individuals has been retold many times. It started carefully in determining relations between community institutions and their staff, and has presently culminated in the Charter of fundamental rights. [8] There is no call to retell this story here. My intent is only to exhibit two important points in relation to administrative policy. The first point is that granting rights to individuals is an important part of baselining standards for public administration in the union and in the member states, and thus forms part of administrative policy and the requirements towards public administration. Taken together, individual rights form a body of administrative law relating to administrative procedure and standards for public administration. [9] The second is that the development of individual rights has not taken place as the result of a comprehensive policy of rights or of public administration. Rather we can se the development as a result of separate developments within the institutions and policies of the EU.


The lack of an administrative code or a body of general rules applicable to administrative practices of the community has led the Court of Justice to develop a protection of individual rights based on general principles of administrative law. [10] Initially, such rights were developed in the context of community administration such as staff cases involving the rights of community employees [11] and competition law involving the right of private undertakings. [12] Soon, community law required individual rights in administrative proceedings also against national administrations when applying and enforcing community legal rules. [13]


The Court of Justice has another strand of cases developing individual rights in administrative proceedings in conjunction with the freedoms of the EC-treaty. These freedoms i.e. free movement of goods, services, people, and capital, mean that national public administrations of the Member States, as key elements for ensuring and implementing them, have to work in a way that renders effective the implementation of those Treaties in all their respects. Protection of the right to free movement entails for instance the obligation to give reasons for individual restrictions of such a right and the right to legal review, [14] the right to a timely decision [15] and the principle of proportionality. In this context could also be mentioned the principle that the State is liable for loss and damage caused to individuals as a result of breaches of Community law that has been developed by the Court of Justice. [16] To a large extent, the principle of state liability serves to protect individuals against administrative encroachments of community rights. The principle may therefore be said to form part of the substantial body of community administrative law and has its counterpart in Article 288 EC that gives a right to compensation for damages caused by Community institutions and servants.


A third line of development has been political requirements of membership in the EU, dating back to when countries with a more than dubious human rights� record, such as Franco�s Spain, started considering applying to the Communities. [17] This has developed into requirements for the present applicant countries in the �Copenhagen criteria�; a set of standards based on articles TEU 6 and TEU 49. Administrative capacity-building and normative requirements that the public administrations of the applicant countries must fulfil are important parts of the enlargement process. In this respect, one may speak more pertinently of a Union policy on public administration on the state level.


4.      Implementation

4.1.           Towards an implementation policy of administration

If we disregard special fields such as competition law and enforcement of the treaties and EU legislation towards the Member States, implementation and administration of community legislation is performed by national administrations in the member states, according to national administrative law. This means that public administration policy is crucial for the functioning of community legislation. Where national administrative bodies are inefficient or ill equipped to manage community legislation, this legislation will be mismanaged. National administrative bodies and national administrative law must have the capacity to implement correctly. This involves questions of organisation, resources and administrative law.


The little that there is of a comprehensive European Union policy of administration is tied to the question of implementation and enforcement of community rules. To this effect, the Council has issued recommendations to the Member States and the Commission, for instance the Council Resolution of 16 June 1994 on the development of administrative cooperation in the implementation and enforcement of Community legislation in the internal market, [18] Council Resolution of 29 June 1995 on the effective uniform application of Community law and on the penalties applicable for breaches of Community law in the internal market [19] and Council Resolution of 8 July 1996 on cooperation between administrations for the enforcement of legislation on the internal market. [20] So far the recommendations do not extend beyond establishing contact points for exchange of information and to help enterprises to deal with any intra-Community trade barriers. The preambles to the recommendations advance further into the realm of administrative policy. Among the topics mentioned are �clear ground rules for the exchange of enforcement information as a precondition for cooperation to be effective, establishing, in each sector concerned, the type of information to be exchanged, the stage of the enforcement process at which it is to be exchanged, and criteria regarding confidentiality, proportionality, maximum response times and other technical aspects of information exchange�. [21]


Looking towards the future, the Commission states in its White Paper on Governance: �ultimately the impact of European Union rules depends on the willingness and capacity of Member State authorities to ensure that they are transposed and enforced effectively, fully and on time.� [22] This points towards a European policy of public administration. Even though administrative policy lies within the realm of the member states, the Commission endeavours upon making suggestions of administrative reform to improve implementation, such as setting up co-ordination units within central government to improve the enforcement of Community law and increased review of administrative bodies by encouraging national courts to take a more active role in controlling the application of Community rules. Presently, the extent to which member states co-ordinate their EU-related policies varies considerably. [23] They should also according to the Commission increase the capacity for dispute settlement through networks of ombudsmen or mediators. The Commission refers to the capacity-building taking place in the applicant countries and states that �the existing Member States should ensure that they too improve their performance and make adequate resources available in this field. The Union can effectively draw on the experience acquired with the applicant countries, such as the �twinning arrangements�. This could be seen as the Commission signalling an enhanced effort into shaping administrative policy in the member states in the future.


4.2 General legal requirements of implemetation

Despite the fact that community law is administered by national governments according to national law, there are some general requirements of community law as to the implementation and enforcement of community law. Presently, the first requirement regarding transposition of community law into national law is laid directly down in the EC-treaty. Article 249 states for regulations that they shall have general application and be binding in their entirety and directly applicable in all Member States. This amounts to a delegation of legislative powers from the member states to the Community. [24] A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.


As a starting point, the member states are thus free to choose the form and methods of transposing directives into national law. A closer look, however, reveals that this freedom has certain limits following from the jurisprudence of the Court of Justice. Community law has requirements both to how the transposition should be performed and to remedies and sanctions against faulty transposition and implementation.


A Member State cannot rely upon domestic difficulties or provisions of its national legal system, even its constitutional system, for the purpose of justifying a failure to comply with obligations to implement community legislation. [25] This, of course, is a consequence of the primacy of community law, and implies that national administrative arrangements must yield to community requirements. The obligation as to primacy applies not only to the courts in the Member States. All administrative bodies, including decentralised authorities, are subject to it, and individuals may therefore rely on a provision of Community law against them. [26] The Community may not have competencies within the field of administrative policy, but it certainly has within its formal legal power to modify and substitute national administrative law and practices.


The Member States are bound to implement the provisions of directives in a manner that fully meets the requirements of clarity and certainty in legal situations imposed by the Community legislature, in the interests of the persons concerned established in the Member States. To that end, the provisions of a directive must be implemented with unquestionable legal certainty and with the requisite specificity, precision and clarity. The ECJ has refused to accept as fulfilment of these requirements clear statements on the interpretation of words in a statute stated in the preparatory material to the act. [27] It has also held that case law cannot, in any event, satisfy those requirements of legal certainty. [28] In both of these cases, the wording employed in the national legislation seemed to exclude the rights embodied in the concerned directives. The Court has further refused to accept as sufficient the assertion from a member state that a community conforming result follows from national law under rules of interpretation which are specific to national law. Such a solution is not sufficient for nationals of other Member States to determine the exact scope of a legislative amendment and know the full extent of their rights. [29]


Furthermore, the Member States must ensure the full application of directives, not only in fact but also in law. [30] Therefore, in the implementation of a directive, a member state may not rely on existing administrative practices or the tolerance which is exercised by the administration under existing national rules, nor on administrative rules which do not confer any right on individuals capable of being relied on before national courts. [31] In addition, a Member State cannot discharge its obligations under a directive by means of a mere circular which can be amended by the administration at will, [32] by reference to rules of good management by which its administrative authorities are required to observe [33] or by a general provision in national legislation referring to community law. [34] This does not mean, however, that implementation of directives necessarily requires legislative measures. Specific implementing measures are not necessary if the national legal system already secures the aims pursued by the directive. This may be the case where the necessary legislation already exists in national law, of where for instance principles of constitutional or administrative law render specific national legislation superfluous. The conditions for this is that the legal position arising from such principles are sufficiently precise and clear and may be relied upon by individuals before the national courts. [35] A Member State may leave the implementation of the objectives pursued by Community directives to social partners through collective agreements. The State is still, however, responsible for fulfilling its obligation to ensure that the directives are fully implemented by adopting such legislative or administrative measures as may be appropriate. [36] In sum, we may say that the court puts emphasis on formal measures of a legal nature in the way of implementation meaning that implementation in actual substance is not sufficient. Compared to the administrative practice in many Member states, this represents a shift from substantial to formal rationality in the competencies and means employed by the public sector.


Secondary legislation may provide for identifying and if necessary setting up of administrative bodies responsible for handling cases, monitoring and control of parties affected by community rules. In such cases one can speak of sectorial requirements of national administrative set-up and practices. Where a Community act does not specifically provide for any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 10 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. This may entail institutional arrangements in the form of organisational measures and sanctions. For that purpose, while the choice of penalties remains within their discretion, the Member States must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. [37]


The obligations of the Member States are not exhausted by the requirement to ensure analogous enforcement to national measures. National arrangements must not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. In instances where national mechanisms are lacking or insufficient to secure the compliance with community rules, specific means to enforce community rules must be made available. In Factortame I, the ECJ ruled that a national court must �disapply� a national rule that precludes it from granting interim relief in proceedings brought against the government. [38] In effect, however, the result was to create a new institution of judicial review in United Kingdom, because under national law, the English courts had no power to grant interim relief in a case such as the one before it. Such relief was precluded by the old common-law rule that an interim injunction may not be granted against the Crown. It has been confirmed by the ECJ in later decisions that the rule in Factortame I requires that national courts have �to be able to grant interim relief and to suspend the application of the disputed national legislation�. [39] The duty to provide effective protection of community rights may therefore necessitate innovations in national law. [40]

5.      Sectorial administrative requirements

Most Community law is regulatory in nature. The main parts of the EC treaty curbs and co-ordinates the regulatory power of the Member States concerning the common market. There is a very large amount of community legislation regarding substantive, sectorial administrative law provisions. The body of aquis communautaire will inevitably influence both the style and structure of national administrations. [41] Seen from the perspective of administrative law, this means that Union legal measures in the different policy areas not only curtail and harmonise sector-oriented policy instruments, but also directly influence organisational and procedural legal rules, in other words rules of general administrative law


It is commonplace to distinguish between two ways in which community law in general curtails and influences national law. On the one hand we have the effect of excluding certain options from the range of national policy choices as can be seen in the general prohibitions against discriminatory measures, restrictions on the free movements and distortion of competition. In the literature such effects have been described as �negative integration� [42] or �old regulatory policy� [43] . On the other hand we have harmonising or regulatory measures that to a lesser or greater extent specify the goals to be reached and prescribe measures to reach them, coined as �positive integration� or �new regulatory policy�.


In his study of measures of integration on national policies, Trygve Ugland has distinguished between substantive and procedural mismatches. [44] A substantial mismatch refers to the question of what is to be regulated. A procedural mismatch exists when a state or a group of states have organised a political area differently from the established member states or the EU as a whole. In the case of a procedural mismatch, the community measure complies the Member State to rearrange its administrative organisation, capacities and practices. This entails that reforms in national administrative law may be the response to the development of Union policy in the different fields of Union competencies.


In the case of instruments of positive integration, the determination of mismatch depends on the measures formulated in the specific legal act, and the scope this leaves for policy and means of implementation to the member states. In some cases, a sector-based harmonisation of administrative policy and law, may be the instrument specifically chosen as part of the Union policy, e.g. when union policy requires the Member states to have and to organise a regulatory authority in a certain way. In the case of negative integration, the answer is not so easily attained. The general restrictions of the instruments of negative integration in some cases bring to an end to national policies. Examples of this are the abolishment of customs and border control within the single market, of policies of favouring nationals in acquisition of property or access to rights and positions, state subventions of national industries and all cases of overt discrimination. In many cases, however, the effects are such that they influence the means with which different policies are pursued, rather the policies as such. From one perspective, one may in such cases say that the instruments of negative integration require of the national administration to adapt or to abandon its policy. There are, of course, countless examples of such adaptation involving changes in legal or administrative measures or in organisational set-up to maintain a national policy. For this reason, it is doubtful whether one can say that requirements of institutional change are more strongly tied to instruments of positive integration than to instruments of negative integration. [45] The need for institutional change in the national administrations follows not only from explicit requirements of instruments of positive integration, but is often an effect of curbs on the range of policy instruments that may be employed.


One example from the accession of the Nordic states to the European Economic Area and the EU are the fates that the instruments of anti-alcohol-policy have endured. [46] Finland, Norway and Sweden have had restrictive policies on production and distribution of alcoholic beverages, in particular wines and spirits. The alcohol policy is part of the general health and social policy and State control measures are used to minimise the harmful effects to health by restricting the consumption of alcoholic beverages. The measures included high taxes, restrictions on production, imports and distribution of alcohol by the way of State monopoly systems and ban on advertising.


Different aspects of the Nordic policy instruments have been under attack; import monopolies, retail monopolies and regulations on advertising. This has lead to abolishment of exclusive rights of import and rearranging of the retail monopolies so to abolish all forms of discrimination of foreign goods. As a result of the confrontations with measures of negative integration, Nordic alcohol policies have been re-categorised, that is more loosely integrated policies and policy components have become redefined or reframed against the background of predominant EU patterns of substantive and procedural standards. Certain elements of the state control system have been abolished such as the monopolies on import, export, wholesale and production. The elimination of these monopoly functions is, however, not likely to reduce the political capacity for an effective intervention in the alcohol control field to a substantive degree. [47] The Nordic states have in other words adapted their administrative organisation and instruments in the alcohol control field in order to sustain the policy goals. The policy mismatch between the EU and the Nordic states has led to a levelling out of procedural mismatches in regulatory and administrative arrangements, although vast differences in procedure still exist. At the same time EU�s policy on alcohol control has developed towards regarding alcohol consumption as a public health issue. The trend in this sector may therefor well be a development away from a policy mismatch towards a mismatch of procedures. [48]


There are also other examples of requirements of community law going directly into the question of institutional administrative arrangements in the Member states. This is notably the case in the so-called liberalised sectors as for example the regulatory framework for telecommunications markets. The energy market gives yet an example. The situation in most member states before liberalisation measures taken in the 1980�s and 1990�s may be characterised by the following description taken from the gas-sector: �State interests were heavily biased by the fact that energy policy in every sector was dominated by monopolistic companies (often state owned) and regulatory authorities which could articulate clear and strong interests within established national paradigms�. [49] This situation has been under attack both by instruments of negative and positive integration. In these sectors, the operation of both types of integration can be observed. As a measure of negative integration, the Commission has initiated proceedings against Member States maintaining exclusive rights to import and export electricity and gas, claiming they are incompatible with the EC-Treaty. [50] As measures of positive integration we have EU legislation such as Council Directive 91/296/EEC of 31 May 1991 on the transit of natural gas through grids and Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services.


In the dismantling of the old regulatory regimes, community law goes quite far into specifying administrative policy such as how national administrations should be organised, to what tasks they should attend and what procedures should be followed. The Commission explicitly states in its Communication on Services of General Interest: �Increasing European integration in certain sectors suggests a parallel increase in European co-ordination for monitoring the activities of regulators and operators. The appropriate institutional arrangements will vary depending on the degree of market integration achieved and the potential failures to be addressed, including in the performance of existing national regulators� and Community involvement with services of general interest goes beyond developing the Single Market, including providing for instruments to ensure standards of quality, the co-ordination of regulators and the evaluation of operations. [51]


In line with this, the directive on transit of natural gas article 21 requires the Member States to designate a �competent authority, which must be independent of the parties, to settle expeditiously disputes� and article 22 to �create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid abuse of a dominant position�. Few member states plan to establish independent regulators for gas, and a few want sector regulators for natural gas as such. The majority is likely to leave regulatory responsibilities in the hands of general energy or common gas/ electricity regulators. [52]


Sectorial administrative requirements are not confined to areas of competition policy. Another example may be found in the environment policy. Directive 90/313/EEC on the freedom of access to information on the environment requires the Member states to provide freedom of access to, and dissemination of, information on the environment held by public authorities. It contains provisions on the procedure in cases about access to information and on judicial review. Although a measure of sectorial politics, it is general in its application and affects all branches and levels of public administration. [53]


Also the rules of free movement may generate secondary legislation of a general administrative nature. Most notably in this category are the rules concerning the co-ordination of procedures for the award of public contracts. These rules are based on the premise that the treaty provisions on free movement entail not only the abolition of restrictions but also the co-ordination of national procedures for the award of public contracts. They provide common rules for participation in public contracts, including rules on drafting and publication of contract notices and both qualitative selection criteria and criteria for the award of the contract. In addition to influencing national procedures, the legislation also specify the treaty provisions curtailing effect on the possibility to pursue policy objectives through the participation of public bodies in the market. [54] Another way of seeing this is to say that the rules demand an adaptation by public bodies to general economic considerations when they demand goods and services from the market.

6.      Implications for administrative policy

The pattern that emerges is twofold. On the one hand increased formal rationality in protection of individual rights and implementation of Union measures. On the other hand increased economic rationality and market orientation governed by competition rules and prohibitions against distortion of competition and the free movement of goods, services, persons and capital. If we compare the basic pattern that emerges from the described measures to for example the public administration in the Nordic countries, mismatches of procedure and administrative policy may be observed. I will take Norway as an example. On the organisational side, Norway has a large public sector, with extensive participation from the public sector into economic activities. Norway, as the other Nordic countries has been labelled a corporate society characterised by participation of organised interest groups, specifically trade unions and business associations in different levels of the administration. The border between the public and private sectors is in this way blurred. The tendency in the last decades has been towards management-oriented reforms of the public sector.


On the legal side, a typical trait of administrative law has been empowering legislation with a wide scope for administrative discretion. Judicial interpretation and review of the exercise of administrative power has been based on teleological interpretation of empowering legislation, with high emphasis on political intents expressed in the preparatory material, in many instances contrary to literal readings of the wording of the statutes. The political management and governing of the public administration has to a large extent been exercised through policy formulations in parliamentary reports and internal administrative decrees. Safeguarding of individual rights has been achieved through emphasis on transparency, collective and individual participatory rights and rights of administrative review.


The division of functions between public bodies and the social partners in regulating for instance wages and working condition is another area affected beyond the protection of individual rights. Community legislation may be implemented through collective agreements provided that the state enjoys powers and responsibility to ensure full compliance. This means that in the Nordic countries, the state has to engage in areas that traditionally have been left to the domain of organised interests of management and labour.


A first observation resulting from surveying the different aspects of Union policy and community legal requirements towards the Member states, is that the lack of competencies to pursue administrative policy and to harmonise organisational and procedural administrative law, has not precluded the Union from shaping the public administrations of the Member states to a substantial extent.


Seen together, requirements of safeguarding individual rights, implementation and measures of negative and positive integration form a pattern of requirements and restrictions on national administrative arrangements. The most invading requirements are found within different measures of sectorial policy. Of these, requirements of competition policy are the most far reaching. From this perspective one could speak of competition policy not as an example of sectorial politics, but as a general obligation for national public administrations to conform to community competition law. Generally this entails separation of regulatory and economic functions and dismantling of monopolies, exclusive rights and obstacles to trade that go further than what is required to ensure the operation of services of general economic interest (Article 86 EC).


It seems easier to obtain Member State consent to administrative reforms on a sectorial basis than on a general basis. [55] Another factor is that when it comes to directives that are enacted to enforce competition law on public undertakings, Article 86 (3) grants the competence on the Commission exclusively. For such reasons, influx from community law into national policies of public administration seems to come indirectly and fragmented, rather than as a result of a comprehensive EU policy on public administration.


Even though the amount of requirements stemming from general and specific community rules seem impressive, the effects should not be exaggerated. The principles formulated by the Court of Justice are general and do as such not introduce totally new or alien elements into the administrative law of the Member states. Their application is also limited to situations where the Member states implement and enforce Community measures or where they exercise competencies to derogate from Community rules such as the right to free movement in the market. It should on the other hand be kept in mind that formal legal requirements are not the only factors influencing the shaping of national public administration policy. Other sources of administrative approximation is the constant interaction among officials of Member States and between the latter and those of the European Commission and framing of domestic beliefs and expectations. [56]


A second observation is that although the Union is shaping the public administration of the Member States, and thus engages in administrative policy, this is a policy by default and not by positive intent.


The requirements stem from three different sources in protection of rights, requirements of efficient implementation and sectorial requirements of reorganising and adapting to competition policy. Nevertheless, they at certain points converge. One point of such conversion is the protection of rights of individuals and submission of acts of administration to judicial review. As we have seen, many of the more specific requirements of implementation are grounded in the need to make individuals able to effectively attain their community legal rights. This is the reason for the requirements of clarity and of legal enforceability. The pattern here is clear. There is an emphasis on implementation through formal rules. Administrative arrangements based on powers of administrative discretion; administrative procedures and internal rules are dissuaded and in many instances do not suffice to serve as implementation of community rules. Procedures and solutions that are transparent to a national observer are not accepted as clear or unconditional from a community perspective. Requirements of judicial review may alter the balance between the administration and the judiciary, in some instances creating new forms of judicial review.


The requirements of implementation have implications that go beyond the protection of individual rights. Many secondary legal instruments are regulatory in nature and call for national legal measures restricting private action. A general requirement is that such measures are effectively implemented and enforced. The general requirements of implementation are as a starting-point not so invasive. There is however a shift in the implication of stressing effective implementation. When implementation was about implementing uniform rules of market integration, the implications of implementation could be seen basically as endowing individuals with rights against their national governments. Presently, community legislation is increasingly about coping with the problems and constraints that the integration of European markets has created for the Member States in policy areas which, so far, have not been Europeanised themselves. [57]


A third observation is that even though requirements from Community law pull in two different directions at the same time, a comprehensive policy of public administration may be made out. On the one hand Union measures demand an increase in market orientation by separation of regulatory and economic functions, and by harnessing the economic functions under the restraints of competition law. This is specifically the case in the fields governed by the competition rules and specific legal measures concerning public undertakings and services of public interest. Main traits here are separation of regulatory and service-providing functions, safeguards and prohibitions against distorting competition and adaptation to the market.


On the other hand they demand a higher emphasis on formal legality, a downplay of administrative discretion and requirements towards administrative rules and procedures. Traditional legal values of the rule of law such as separation of powers, including emphasis on judicial review of administrative measures and rechtsstaat such as proportionality and protection of legitimate expectations are enforced to an extent that requires adjustments in many of the member states.


The two separate tendencies towards on the one hand market orientation and on the other hand emphasis on legality and individual rights can be recognised also in a broader international context. On the one hand there are the reform processes taking part in the context of OECD under the label of �Public Managment Reform�. [58] On the other hand there is the development of individual rights towards the government under conventions and bodies for human rights. For this reason one may ask whether the developments we see in EU administrative policy and influence on administrative law in the Member states is but part of larger international developments. Due to the legislative machine of the Union and the surveillance and control excersised by the Commission the effects of these international trends are probably stronger and more concerted in the Member states that they would have been without the push from the Union. We see this most clearly in regards to the capacity building and administrative shaping taking place in the applicant countries of central and eastern Europe. On the other hand, the speed of the development and influence of a union policy in this field may well be enhanced by the fact that it is supported by more general international trends.


The two developments need not be in conflict. Organisational and procedural requirements may go hand in hand. On the one side there are organisational requirements of separation of functions, where regulatory functions are required to be separated from provision of services and management of economic entities. On the other side, the regulatory functions are governed by requirements of legality and procedural safeguards to protect individual rights. The sum effect of such measures on administrative policy is to submit regulatory functions to an increasingly formal legal rationality and other functions to an economic rationality. As we see from the directives on public contracts, this extends beyond the way the public sector is organised into the different functions that are performed. These directives demand of regulatory bodies to conform to the logic of the market when they operate as purchasers on the market.


The pattern that emerges is, however, not completely pure. The requirements based on a legal rationality extend beyond the public entities that undertake regulatory functions. The prohibitions that the treaty places on the Member states extend not only to public authorities as such, but also to any body or entity that may be deemed to be under the control of such an authority. The same is the case for secondary legislation such as the right to access to environmental information. Such control may be present by financial means, by supervision or by appointment of influential members on an administrative, managerial or supervisory board of an entity. The effect of this is that some economic enterprises competing in the marked may be subject to different rules than others, due for example to their public ownership or ties to the public sector through the financing of their activities.

[1] See Christoph Knill, The Europeanisation of National Administrations, Cambridge 2001.

[2] See Jarle Trondal, Transformasjon av staten Hvilken betydning har EU? ARENA WP 01/24.

[3] See J�rgen Schwarze, Europ�isches Verwaltungsrecht, Nomos, Baden-Baden, 1988. English version: European Administrative Law, London, 1992.

[4] See Stefan Kadelbach, European Administrative Law and the Law of a Europeanized Administration, in Christian Joerges and Renaud Dehousse (eds) Good Governance in an Integrated Market Vol. XI, Book 2 of the Collected Courses of the Academy of European Law (forthcoming).

[5] European Principles for Public Administration, SIGMA Papers No 27, OECD 1998 p. 5.

[6] Article 41 Right to good administration

1. 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.

2. This right includes:

         the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

         the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

         the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

By virtue of Article 51 Scope, this applies also to the Member States when they are implementing Union law.

[7] European Principles for Public Admininistration, CCNM/SIGMA/PUMA(99)44/REV1, OECD 1999.

[8] Agustin Jos� Men�nd�z, Chartering Europe:The Charter of Fundamental Rightsof the European Union, ARENA WP 01/13.

[9] The implications of the development of principles of administrative law for the shaping of an European administrative policy is examined in European Principles for Public Administration, SIGMA Papers No 27, OECD 1998.

[10] The main work on describing the emerging general procedural and substantial principles of administrative law emerging from community law is still J�rgen Schwarze, Europ�isches Verwaltungsrecht, Nomos, Baden-Baden, 1988. English version: European Administrative Law, London, 1992.

[11] See Joined cases 7/56, 3/57 to 7/57 Algera v. the European Coal and Steel Community ECR English Special Edition 1957 p. 39.

[12] Case 17/74 Transocean Marine Paint Association v Commission, [1974] ECR p. 1063.

[13] For an analysis and comparison of general principles of administrative law in �European administrative law� and �Europeanised national administrative law� see Stefan Kadelbach, European Administrative Law and the Law of a Europeanized Administration, in Christian Joerges and Renaud Dehousse (eds) Good Governance in an Integrated Market Vol. XI, Book 2 of the Collected Courses of the Academy of European Law (forthcoming).

[14] Case 222/86 Unectef v Georges Heylens and others [1987] ECR p. 4097.

[15] Case 42/82 R Commission v France [1982] ECR p. 841.

[16] Judgments in Joined cases C-6/90 and C-9/90 Francovich and Others [1991] ECR p. I-5357; Joined Cases C-46/93 and C-48/93 Brasserie du P�cheur and Factortame [1996] ECR p. I-1029, Case C-392/93 The Queen v HM Treasury ex parte British Telecommunications [1996] ECR p. I-1631; Case C-5/94 Hedley Lomas [1996] ECR p. I-2553; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR p.I-4845.

[17] Agust�n Jos� Men�ndez, Legal status and policy implications of the Charter of Fundamental Rights of the European Union, ARENA WP 02/07.

[18] O. J. C 179 , 01/07/1994 P. 1 � 3.

[19] O.J. C 188 , 22/07/1995 p. 1 � 3.

[20] O. J. C 224 , 01/08/1996 p. 3 � 4.

[21] O. J. C 224 , 01/08/1996 p. 3 � 4.

[22] White Paper on European Governance, COM(2001) 428 final p. 25.

[23] See Morten Egeberg, An Organisational Approach to European Integration: Outline of a Complementary Perspective, ARENA WP 01/18.

[24] Within the context of the EEA Agreement, also regulations must be transposed into national law, where this is a requirement of the law of a contracting pary. This is the case for Iceland and Norway. Article 7 states for this case that �an act corresponding to an EEC regulation shall as such be made part of the internal legal order of the Contracting Parties�.

[25] Case 102/79 Commission vs. Belgium [1980] ECR p. 1473, joined cases 30 to 34/81 Commission vs. Italy 1981 [ECR] p. 3379.

[26] Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839.

[27] Case 143/83 Commission vs. Denmark [1985] ECR p. 427.

[28] Case C-236/95 Commission vs. Greece [1996] ECR p. I-4459.

[29] Case C-162/99 Commission vs. Italy [2001] ECR p. I-0541.

[30] Case C-339/87 Commission v Netherlands [1990] ECR p. I-851.

[31] Case 102/79 Commission vs. Belgium [1980]ECR p. 1473 and Case 145/82 Commission vs. Italy [1983] ECR p. 711.

[32] Case 239/85 Commission v Belgium [1986] ECR 3645, paragraph 7.

[33] Case C-366/89 Commission vs. Italy [1993] ECR p. I-4201.

[34] Case C-96/95 Commission vs. Germany [1997] ECR p. I-1653.

[35] Case 29/84 Commission vs. Germany, [1985] ECR p. 1661.

[36] Case 143/83 Commission vs. Denmark [1985] ECR p. 427.

[37] Case 68/88 Commission v Greece [1989] ECR p. 2965, paragraphs 23 and 24; Case C-213/99 de Andrade [2000] ECR p. I-11083, paragraph 19. Se also COUNCIL RESOLUTION of 29 June 1995 on the effective uniform application ofCommunity law and on the penalties applicable for breaches of Community law in the internalmarket O.J. C 188 , 22/07/1995 p. 1 � 3.

[38] Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR p. I-2433.

[39] Joined cases C-143/88 and C-92/89 Zuckerfabrik S�derdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR p. I-0415.

[40] See Ole Due, Danish Law in a European Context in Dahl, Melchior, Rehof,Tam (eds.) Danish Law in a European Perspective, Copenhagen 1996 p. 25.

[41] See Christoph Knill, The Europeanisation of National Administrations, Cambridge 2001 pp. 36-41.

[42] See Fritz Scharpf, Governing in Europe Effective and Democratic? Oxford 1999 p. 45.

[43] See Christoph Knill, The Europeanisation of National Administrations, Cambridge 2001 p. 36.

[44] See Trygve Ugland, Policy Re-Categorization and Integration, ARENA Report 03/2002 pp. 15-15.

[45] See Christoph Knill, The Europeanisation of National Administrations, Cambridge 2001 p. 214.

[46] An in-depth study of the Nordic Anti-alchol policies in their encounter with the EU and community law is presented by Trygve Ugland, Policy Re-Categorization and Integration, ARENA Report x/2002. For an overveiw over the development of anti-alchohol policies in Finland and Sweden, their encounter with community law and their europeanisation see Paulette Kurzer, Markets and Moral Regulation: Cultural Change in the European Union, Cambridge 2001. With minor variations, this is also an account of the Norwegian experience.

[47] See Trygve Ugland, Policy Re-Categorization and Integration, ARENA Report x/2002 p. 192.

[48] Ugland p. 214.

[49] Svein S. Andersen: European Integration and the Changing Paradigm of Energy Policy. The Case of Natural Gas Liberalisation, ARENA WP 00/13.

[50] C-157/94 Commission vs. Netherlands [1997] ECR p I-5699, C-158/94 Commission vs. Italy [1997] ECR p I-5789, , C-159/94 Commission vs. France [1997] ECR p. I-5815, C-160/94 Commission vs. Spain [1997] ECR p I-5851.

[51] Commision communication on services of general interestCOM(2000) 580 papagraph 62 and 65.

[52] Svein S. Andersen, European Integration and the Changing Paradigm of Energy Policy The case of natural gas liberalisation ARENA WP 00/13.

[53] See Ludwig Kr�mer, Directive 90/313 on the Freedom of Access to Information on the Environment: origins and prospects of implementation, in Focus on European Environmental Law, London 1992.

[54] See Kai Kr�ger, Ruth Nielsen and Niklas Bruun, European Public Contracts in a Labour Law Perspective, Copenhagen 1998.

[55] Alberto J. Gil Ib��ez, Commission Tools For The Supervision and Enforcement Of EC Law Other Than Article 169 EC Treaty Harvard Jean Monnet Working Paper 12/98.

[56] See Christoph Knill, The Europeanisation of National Administrations, Cambridge 2001 p. 223.

[57] Fritz Schrapf, European Governance: Common Concerns vs. the Challenge of Diversity, Jean Monnet Working Paper No.6/01, Symposium: The Commission White Paper on Governance.

[58] See Government of the Future, OECD 2000.