Diritto amministrativo

Comparative and European administrative law

Comparative system

Traditional ambiguity of the concept of comparative law suspended between the idea of comparative law as:

• Research method or
• As an autonomous scientific discipline

G. Gorla: comparing in the field of law as in any other field means in itself an activity or process of knowledge of two or more legal phenomena (historically determined) to see what they have different and what they have in common between the two or more terms of comparison. The comparison in fact has no sense if those terms are already posed as completely heterogeneous.

Problematic relationship of comparative law:

• General theory and philosophy of law: Comparison can serve for the results it offers to the general theory and philosophy of law also as corrective, to avoid their provincialism or the tendency to exchange for all that is only a part) but it differs from them
• History of law: One cannot fully understand each historical fact without relating it to others, especially when they are contemporary
• Foreign law: Certainly comparative law should not be confused with the study or learning or teaching of foreign law in order to operate in the same field. Today it is undoubtedly also a scientific discipline with autonomy.

Slow emergence of comparative administrative law

Comparative law, legal comparison between legal systems academic judicial and legislative comparison usually academic studies have been given priority. A dialogue between legal experiences since the 16th century, communication between lawyers and courts of justice (example: right to be heard in England and citation-defensio). Comparatio-communication as a tool to build and strengthen a Common European Law, which includes both English and continental law.

In the 19th century, national codification and clear separation between different legal systems. Development of comparative analysis conducted by legal scholars, especially from the second half of the 19th century and the early of the 20th century (first international conference on comparative law in Paris in 1900). Comparative based on the analysis of analogies and differences between different codifications and national systems. Comparison especially in the field of private law. Much later in the field of administrative law (it is historically a young field of study). Comparison in administrative law traditionally linked to a state dimension, slowly emerged.

But, above all, the lateness of the comparison is a reflection of the delay and uncertainties in the emergence of administrative law as an autonomous discipline. Centrality of common law comparison – civil law that for administrative law, has taken ontological importance:

• The centrality of the role of Dicey in the enhancement and exasperation of the contrast between:
• The virtues of an English legal system based on a rule of law that did not admit privileges and arbitrators of public authorities (centrality of the role of freedom with respect to sovereign prerogatives)
• The defects of a French system based on a droit administrative characterized by unacceptable prerogatives of the state (centrality of authority through the theoretical administrative act and a special right).

Evolution of comparative administrative law

New trends: strong development of academic comparison in the field of administrative law (Rivero and Braibant in France, Piras in Italy, Schwartz and Wade in Anglo-American). The idea of convergence between national legal systems is strengthened. Growth of comparative legislation (e.g., German antitrust law modelled on the Sherman act and French regulations on administrative procedure). The study of convergences between administrative law systems is strengthened.

• A. A private law ad negotiating measures for continental administrative laws
• B. Administrative procedure also for continental administrative laws
• C. Judicial protection also for Anglo-Saxon admin rights – substantial review
• D. Exorbitant rules for Anglo-Saxon administrative rights
• E. Administrative transparency

Centrality of the public service and the welfare state as a characteristic feature of the consolidation of administrative rights in the second nineteen century.

Comparative administrative law in the supranational context

From the 1980s-90s, many fields of administrative law were regulated by the EU law (e.g., public contracts, environmental law, regulation of financial markets, etc.). From the 1990s tendency to legal globalization. Global administrative law.

Units and methods of comparison

Some principles or instruments (proportionality; right to be heard; fair procedures). National jurisdictions in their overall structure (relationship between Parliament, Government, and Administration). National vs. supranational legal systems. Rules and contexts.

Methods: Systemic approach: comparison of legal systems or, Issue approach: comparative analysis of specific problems. Or Systemic approach will be adopted. Anyhow, comparison necessarily focuses on some issues:

• A. Relationship between administrative law and ordinary law.
• B. Balance between judicial remedies and non-judicial mechanisms for the protection of citizens (ex. Administrative procedures and independent administrative authorities).

Administrative law as special law

The French roots

Administrative law, unlike private law, is a product of each state and it is strictly related to his peculiar history. The origin of administrative law may be traced back to the absolute state of the eighteenth century. In France with the displacement of the ancient regime by the French revolution jurists for the first time defined a conception of administrative law, distinguishing administrative bodies and functions from those of the judiciary.

The French revolution proclaiming equality in place of the old corporate order (different social classes) has opened the door to a stronger role of public administration in the public space (as a sort of social body between state and single citizen). In the Napoleonic period, the space and role of administration were strengthened and in deference to the separation of power principles of the revolution was forbidden to the ordinary courts to annul administrative acts and decisions.

At the very beginning of the foundation of administration as a separate body, the authoritarian dimension was prevalent. (The need to create a space for administration, special rules). The foundation of administrative law could be conceived as the answer that each state has been able to give the question of legality and justice in the administration. How to control and limit the administrative power? Reconcile the freedom of administration to carry out public tasks with the protection of individuals vis a vis administrative power.

In many legal systems the attribution of judiciary functions to a special judge (conseil d'etat, consiglio di stato) represented a way to reconcile justice and administration without denying the separation of power. Etat de Droit, Rechtsstaat: a way to better combine supremacy of law, autonomy of administration, judicial review of administration. In this context, administrative law for a long time has been considered as a sort of national enclave.

Administrative law traditionally concerns the internal functioning of States, so it has been less open to transnational cross-fertilization. Late development of a comparative legal culture in this field (if compared to the private law tradition). This late development of comparison was also influenced by the success and the spread of «Dicey prejudice», who denied the existence of a droit administratif in England, seeing it as the herald of despotism.

The origins of administrative law: big distances

Times: France, England, USA, Italy, between the 18th and the 19th century. Dicey’s perspective contributed to spread the conviction that while some countries had an administrative law, others had an administration, but no administrative law as such. The big distance between «administrative law systems» and «common law systems». France and England as main examples of such systems. France: droit administratif as a special system of law. Special administrative powers; special rules; special principles; special courts. Specialty as a privilege for Public Administration (closely connected with the rise of the bourgeoisie). England: administrative law has not its own space, and is included in the ordinary law of the land. Special administrative powers, special rules exist, but as mere derogations from the ordinary law. Disputes are decided by the ordinary courts of justice.

France: acte administratif as a unilateral authoritative measure adopted without a previous procedure. Main guarantees before administrative courts. England: procedural fairness and application of natural justice principles. Main guarantees in administrative procedures.

Different conceptions of public power:

• Authoritative conception of public power in France. The statesman (and public administration) acts with authority and takes the decision without previously hearing the citizen. Administrative power is separate from the exercise of justice.
• Liberal conception of public power in England. The statesman acts according to justice. He does not need a special law and decides in accordance with the principles of natural justice (right to be heard, impartiality). Justice is already within administrative action.

Peculiarities in US. Double soul: English roots (in Constitution) and political, legal, and cultural influence of France. French influence: the US courts of justice apply the decisions of the French jurisprudence (in the first half of the 19th century). Hostility against British common law. British tradition influences the importance of non-judicial guarantees. Idea of fair procedure (Amendments V and XIV on due process of law).

Peculiarities in ITALY: French model first: introduction of an «administrative law system», based on ideological roots (before national unification of 1861). Then some similarities with England: large use of private law (development of administrative contracts), with the consequent growing role of the ordinary courts (soon after unification). Finally again the French model: administrative judge remains prominent in judicial control over administrative action. Judicial remedies remain the main guarantees for citizens.

Toward convergence (from the second half of the 19th century and along the 20th century)

The contraposition between Administrative law systems and Common law systems:

• A. Overemphasized the illiberal features of French administrative law
• B. Neglected the expansion experienced by government in UK

Of course, in the UK emergence of administrative law is not characterized by the same discontinuities which characterized the French model (strong centrality of judiciary, common law of the land, late and fragmented spread of administrative bodies). Rule of law as an ordinary tool to limit public powers too (continuity). But from the late of the XIX century statutes and regulation began to give more and more tasks to administration in order to better face the challenges of industrial revolution and urbanization (work, health). The history of western democracy has demonstrated - especially in the first decades of the XX century - a wide convergence among different administrative laws systems: strong intervention of public powers in private sectors (public service, New Deal) especially between the two World Wars. Centralization of power and uniformity of administrative bodies to better pursue public goals.

The need to reconcile public power and private freedom, through the theory of administrative procedure (APA 1946 in US) as well as through the intensification of judiciary powers against public administration (not only in Europe but also in common law systems). First period: convergence concerns the balance between common rules and special rules for public administration. In common law systems: development of special rules for administrative activities, also to meet the needs of the welfare state. In the French system and in Continental Europe: the expansion of negotiated measures and private law. «less special» than in the origins (since the first decades of the 20th century). Service public similar to welfare administration: service vs. power (early 20th century).

Second period: convergence concerns also the relationship between judicial and non-judicial remedies. A more intense judicial review was introduced in England and the US (mainly in the second half of the 20th century). Development of substantive review. France and Italy learn the lesson of administrative procedures and transparency (recent years). Euro continental systems introduce independent administrative authorities. From the 1980s EU law influences, through common detailed rules and general principles. Detailed rules: public contracts; telecommunications; energy; postal services; financial markets. Principles: proportionality; transparency; precaution; independent administration as a tendency.

From the 1990s, GAL includes regulations of international institutions, public and hybrid regulators, private regulators having public powers. Principles: again transparency (WTO); participation (Aarhus Convention on Environment). Vertical convergence. Due to EU and global law impact on national jurisdiction. Horizontal and vertical convergence combined.

Persisting Differences

Independent Agencies: different degrees of independence. Dysfunctions in Continental Europe. Current difficulties in USA sound culture of administrative independence in Great Britain. Participatory guarantees: diversity in scope. Broad guarantees in adjudication procedures. Limits in rulemaking. More guarantees in US APA. FOIAs: different roots. Participation has the main root in the US and Great Britain. Anti-Corruption in Italy.

Judicial review: Procedural and formal review more diffused in Great Britain and USA: right to be heard and hearings; proceduralized rationality test («all relevant factors» to be considered). Substantive review sounder in Continental Europe: proportionality test; substantive reasonableness. Convergence prevails in the long run over differences.

A convergence made of:

• i. Administrative independence from government and political influence (partisan advantage).
• ii. Negotiation and consultation between administrative agencies and citizens; dialogue more than authority.
• iii. Effective administrative justice based on judicial and administrative remedies against excesses of public (and private) power.

Comparative Administrative Law: contribution to convergence. As shield against State sovereignty nostalgia and new abuses of power.

Administrative law between national and supranational dimension

Two phenomena destabilized the traditional framework of administrative law based on the strict relationship between National State and Administrative Law:

• A. Internal fragmentation of administrative systems
• B. Supranational and international pressure on administrative law systems

Internal fragmentation

Since the second half of the XX century an increasing number of countries have tended to devolve legislative and administrative tasks to regional and local authorities (Italy, Belgium, Spain and even France). In all these countries (albeit to a varying extent), regional and local authorities:

• A. Implement policies established at a national level (under the “top-down” model)
• B. But are also entrusted with the power to lay down legal rules of their own.

To the extent to which regional and local authorities enjoy political autonomy, their rules may differ from area to area. A first consequence of this is an increasing statutory particularity. Uniformity, one of the postulates of the nineteenth century State, is reduced.

Supranational and international pressure on administrative law systems

At European level as well as at global level many regulatory regimes have progressively eroded the traditional national monopoly in the administrative field. Why? Intensive delegation of sovereignty to supranational organization (to better govern complex phenomena such as terrorism, environmental crises, digitalization, IT regulation):

• A. Production of norms (harmonization, standardization)
• B. Application, evaluation and interpretation of these norms in the concrete cases and disputes

Both these two functions touch the earth of the modern Administrative State, where administration is not only a mere executor of the Parliament, but it is more and more involved in the production of rules that traditional Parliament are not always in the better position to adopt. Why?

• - Length of political deliberation process
• - Technical competences required

In this context, the European Union is a Regulatory Administrative space established at international level. This supranational delegation has stimulated the development of general principles of administrative law applicable to administrative functions beyond the State. Global Administrative Law: need to apply rules and guarantees of administrative law to supranational bodies. The material conferral of regulatory and administrative powers to supranational entities has stimulated the erosion of traditional national monopoly in defining the «rules of the game» in the administrative space. Nowadays administrative law must be considered in a dynamic perspective, focusing on some dynamics of change:

• A. The growing importance of others public authorities within and outside the Nation-States;
• B. The emergence of a common core of general principles of law as reaction (or as result?) of this fragmentation.

State has ceased:

• A. to be the sole source of legitimate authority, although it still enjoys a dominant role
• B. to be the sole creator of administrative law rules and principles, although he contributes to the concrete application and consolidation of these principles

Toward a European Administrative Law. E.U., E.C.H.R. and National