PIL Week 12 Slides PDF

25 November 2024 Sandra Nobrega SUBSTANTIVE PRINCIPLES Week 12  Procedural and substantive Last week: Good Administration Duty to Give Reasons Transparency This week we move onto substance: Not how the decisions are...

25 November 2024 Sandra Nobrega SUBSTANTIVE PRINCIPLES Week 12  Procedural and substantive Last week: Good Administration Duty to Give Reasons Transparency This week we move onto substance: Not how the decisions are made, but their content 2  Procedural and substantive Substantively, very few people think governments should be allowed to do whatever they want all the time Some limits on how much they can do, even if they do it procedurally correctly Rule of law is not just rule of laws, but the sense that courts should act as a check on the worst excesses of government 3  Substantive Principles: motivation Need to challenge incorrect, unjust, or unreasonable governmental decisions The decision-makers need to understand the limits of governmental powers 4  “Public administration must respect the purposes and limits set down in laws— generally passed by parliaments, but also, in some places executive decrees—or turn into the arbitrary action of tyrannical F. Bignami, ‘Comparative Administrative despots. The task of courts is to enforce Law’, in The Cambridge Companion to Comparative Law (M. Bussani and U. Mattei eds., 2012), p. 12 those limits.” 5  What is the Rule of Law?  Rule of Law “In order to pursue public goals and general interests, the administrative authorities receive certain competences from the legislator.” (Backes & Eliantonio, p. 208) 7  Rule of Law Common element to European Systems: the administration is, at all times, bound by the law. The allocation and execution of powers are regulated by law The administration must refrain from violating the law, including the basic rights of individuals “ 8  Rule of Law Sovereignty lies with the people, and governments have only the powers given to them There should therefore be legal limits on government actions Governments should only be able to act where it has the legal power to do so Stems all the way down to basic administrative decisions 9  Rule of Law Sovereignty lies with the people, and governments have only the powers given to them There should therefore be legal limits on government actions Governments should only be able to act where it has the legal power to do so Stems all the way down to basic administrative decisions 10  Rule of Law Requirement of the Rule of Law: Legality Principle Legality principle: the administration’s competence to act must have a basis in legislation The legislature provides the necessary instruments to the administration Legislation also sets the limits of the powers conferred upon the administration 11  Rule of Law: EU Paul Craig: “The idea that administration should be procedurally and substantively accountable before the courts has been central to the rule of law.” (p. 269) Article 263(2) TFEU: “It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.” Article 19 (2) TEU: “The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.” 12  Principle of Legal Certainty “The principle of legal certainty is a fundamental principle of EU law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly.” (See Case C-308/06 The Queen (on the application of Intertanko) v Secretary of State for Transport ECR I-4057, –) 13  Principle of Legal Certainty General Principle of EU Law: Case C 55/91 Italien v Commission ECR I-4813, para. 66; Joined Cases T-55/93 and T-232/94, T-233/94 and T234/94 Industrias Pesqueras Campos v Commission ECR II-247, paras. 76, 116, 119, among others) 14  Principle of Legal Certainty Non-retroactive effect of EU law: Article 297(1) TFEU: “Legislative acts shall be published in the Official Journal of the European Union. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.” People needs to know what are the legal consequences of their actions 15  Principle of Legal Certainty Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.” (Case 98/78 Racke, paragraph 20) 16  Principle of Legal Certainty Exception: “it clearly follows from their terms or general scheme that such was the intention of the legislature, that the purpose to be achieved so demands and that the legitimate expectations of those concerned are duly respected” (Case T-357/02 para. 98) if the public interest in the retroactive effect overrides the private interest in the maintenance of the existing legal situation (Balancing, Craig, p. 615; Hofmann. p. 18) 17  The Rule of Law – EU Revocation of acts Lawful Acts: in principle not be revoked (see Craig, pp. 607 – 613) Unlawful Acts: “permissible provided that the withdrawal occurs within a reasonable time and provided that the institution from which it emanates has had sufficient regard to how far the applicant might have been led to rely on the lawfulness of the measure”. (Case T-251/00 Lagardère and Canal+ v Commission, para. 140) 18  The Principle of Legitimate Expectations General Principle of EU Law: Case 111/63 Lemmerz-Werke ECR 883 Very important when an administrative decision is cancelled or revoked Requirements: Justifiable reliance: Case T-176/01 Ferriere Nord Spa v Commission Affected Interest: Case 74/74 CNTA v Commission ECR 533, para. 44 Priority for the protection of the expectations over the interest of the Union 19 Principle of Proportionality Article 5(4) TEU: “4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.” 20  Principle of Proportionality The CJEU established proportionality as a general principle of EU law before its formal recognition. Widely used in reviewing the legality of acts by EU institutions, Member States, and other bodies. EU Institutions: Acts limiting individual rights or Member State powers 21  Principle of Proportionality The Three-Step Proportionality Test 1. Appropriateness ‘the principle of proportionality requires that measures adopted by European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question.’ (Case C-260/89 ERT v DEP) 2. Least Restrictive Means ‘when there is a choice between several appropriate measures recourse must be had to the least onerous’. (Case C-343/09 Afton Chemical, para 45) 3. Balancing ‘the disadvantages caused must not be disproportionate to the aims pursued’ ((Case C-343/09 Afton Chemical, para 45) 22  Principle of Proportionality Degrees of Judicial Review Marginal Review Applies to areas with wide legislative discretion. The CJEU checks for manifest errors. Respect for separation of powers (Article 13(2) TEU). Full Review: Used in cases with limited discretion, e.g.: Administrative Acts: Implementing legislation. Member State Acts: Limiting fundamental rights or freedoms. Balancing Rights: Explicit under Article 52(1) CFR. 23 Principle of Proportionality Article 191 (2) TFEU: “2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. 24  Precautionary Principle A principle gaining prominence in EU law, particularly in environmental and public health contexts. Aims to manage risks where scientific certainty is lacking but potential harm exists. Initially implicit in ECJ jurisprudence; formalized by the CFI (now GC) in key cases like Pfizer and Artegodan. Treaty references: Article 191(2) TFEU Application beyond environmental policies. 25  Precautionary Principle Review of EU Actions Used as a shield: Justifies protective measures by EU institutions when risks are uncertain (Pfizer case). Applied in scientific risk assessments that balance protection and economic considerations. 26  Precautionary Principle Risk Assessment Components Hazard identification, characterization, exposure appraisal, and risk characterization. Must be thorough, based on the latest scientific data, and transparent. Guidelines for Application Measures must be proportional, non-discriminatory, and consistent. Actions should balance societal risks and economic impacts, ensuring public health takes precedence. Microsoft Word - DGSanco-PO-COM_2000_1-99-3401-precaut_EN_ACTE.doc 27  Precautionary Principle Case Examples Pfizer: Antibiotic additives in animal feed and health risks. Artegodan: Withdrawal of unsafe medicinal products. Monsanto: Regulation of genetically modified foods and Member State safeguards. 28