Appunti Administrative law

Administrative law

Administrative law consists of the group of laws, rules and regulations applied to every legal relation where at least one public body is involved. It is part of the so-called “public law”. It ensures that the public administration operates under the law rather than above it.

It regulates what public authorities may do, how they must do it and how individuals may challenge them if they act unlawfully.

The administrative system takes concepts and institutions from other branches of the law (criminal law, civil law, labor law) but is, at the same time, self-sufficient: there is no need to bring rules from other areas to fill in the gaps.

Modern states have vast powers (taxation, health, transport) without limits and rules; these powers could be arbitrary or abusive.

Two complementary purposes

1. Enable effective administration; states must be able to act efficiently to serve the public.
2. Ensure lawful and fair administration; citizens must be protected from misuse of power.

A good system of administrative law achieves both efficiency and justice.

Programme 2026

Sources of EU administrative law

Importance of sources

The sources of EU administrative law (such as treaties, regulations, directives, general principles, case law and soft law) define: the powers of EU institutions, bodies and agencies, the limits of those powers and the procedural duties they must respect.

It is important to stress that EU administrative law is not codified in a single act; it is fragmented across multiple sources. Moreover, it has developed largely through the case law of the CJEU, and it relies heavily on general principles of law.

Such sources establish fundamental guarantees such as:

• The right to be heard
• Access to the file
• Duty to give reasons
• Legitimate expectations
• Proportionality and legal certainty

They also guide national authorities when they apply EU law (shared administration), prevent different national practices, and support the principle of effectiveness and equivalence. This is crucial in a legal order where EU law is implemented mostly by national administrations.

The sources reflect: the relationship between EU institutions, the division of competences between the EU and Member States, the balance between efficiency of administration, and fundamental rights. They also influence national administrative law reforms, contribute to the creation of European administrative standards, and inspire principles used in international and global administration.

They are essential for legal practice and policymaking. These sources allow judges, lawyers, civil servants, and policymakers to correctly interpret and apply EU rules. This helps avoid annulment of decisions, liability and violation procedures, also improving the quality and legitimacy of administrative decision-making.

Hierarchy of sources

EU administrative law comes from different sources, including:

• Primary sources
• Written rules – treaties, regulations, directives
• Unwritten principles – proportionality, protection of legitimate expectations. Such principles are crucial for the functioning of administrative law, because they are used to fill legislative gaps that may appear (Not everything can be foreseen in advance)
• Secondary sources
• Case-law of the CJEU

Administration work

Administrative action is carried out in three ways:

• Directly, through EU institutions (EU Commission)
• Indirectly, through the administration of the Member States. It is useful because Member States are best placed to implement EU law at national level.
• Jointly (composite), when EU and national authorities act together.

EU law applies a hierarchy of norms (Kelsen’s theory). Each legal norm is based on a higher norm, and it is valid because it complies with that higher level.

The ultimate norm from which every legal norm deduces its validity is the Grundnorm, the highest basic norm. Hierarchy of norms ensures legal coherence and helps resolve conflicts between rules.

Secondary law must comply with primary law. Primary law is often called the EU’s constitution (ma come sappiamo non esiste una vera e propria costituzione europea, visto che gli stati membri non l’hanno voluta).

In 2004, a European Constitutional Treaty was signed, but not all Member States ratified it. Therefore, it never entered into force. Today's constitutional rules are spread across the TEU, TFEU, the Charter, and protocols.

While in national law it is easy to understand hierarchy of norms, in the EU system the hierarchy is more complex. Member States are bound by treaties more strictly than by ordinary international treaties.

Unique nature of EU law

EU law differs from international law because:

• Treaties cannot be easily amended
• Customary law cannot change primary law
• EU law directly affects individuals and administrations

EU law is considered unique, because it is more than international law, but it is not state law.

Formal sources of EU law

EU law has a formal hierarchy. In the pyramid, primary law stands at the top, and all other EU laws must comply with it. At the lowest level are contracts with third parties. All EU laws must comply with primary law, because EU treaties give direct powers, such as the Common Foreign and Security Policy (CFSP) and Competition law. EU treaties do not provide legislative procedures but directly empower institutions to act.

EU primary law has been in force since 2009 and is often called the ”Lisbon Treaty”, and actually consists of:

• TEU (55 articles)
• TFEU (358 articles)
• Charter of Fundamental Rights (54 articles)
• 38 Protocols
• EURATOM Treaty

The Lisbon Treaty is not a single treaty, because it amended and reorganized earlier treaties. Protocols and treaties have same legal force.

Protocols are used to define special procedures (subsidiarity), to regulate institutions (CJEU, European Central Bank) and provide exceptions for some countries (euro area, Schengen).

Annexes are used as an addition to the agreements.

Some Member States have exceptions because EU integration is a process, and as such it moves at different speeds for different countries.

The consequences of equal legal value are that:

1. Secondary law may be annulled if it conflicts with primary law
2. Conflicts are solved using lex specialis (the more precise provision prevails over the more general one, according to the usual principles of legal interpretation)
3. Treaty amendment requires solidarity

Treaty revision is so difficult because it depends on national constitutional requirements.

Other documents are also considered primary law, which are: the accession treaties of new Member States (art. 48 TEU) and the declarations (which have no obligatory force but help to interpret primary law).

General principles of EU law

These principles consist of:

• Unwritten principles of law
• Those developed by the CJEU
• Superior to secondary EU law

They are applied together with EU international agreements. These principles are important because not all situations can be regulated by written rules.

General principles are a concept that exists in many countries; at EU level they are not merely considered as doctrine but a source of real law.

Some examples are proportionality, legitimate expectations, and legal certainty. These principles are used to review secondary law, assess Member States' actions, and to guide national courts. They are binding both for the EU institutions and for Member States.

The CJEU has used general principles since the 1950s, and it is the only body that can recognize a principle as “general”. This power is strictly given to the court to