admin final for dummies.pdf

Session 16&17 Introduction to EU Administrative Law The EU is based on the rule of law: - This means that every action taken by the EU is grounded in law. The laws are clearly defined and the powers of the institutions are set out in treaties. - It ensures that the EU operates within a legal framewo...

Session 16&17 Introduction to EU Administrative Law The EU is based on the rule of law: - This means that every action taken by the EU is grounded in law. The laws are clearly defined and the powers of the institutions are set out in treaties. - It ensures that the EU operates within a legal framework, providing predictability and fairness. Separation of powers: - Similar to many democratic systems, the EU follows the principle of separation of powers among its institutions. - This divides the EU’s governance into three main branches: ○ Legislative (makes laws): The European Parliament and the Council of the European Union. ○ Executive (implements laws): The European Commission. ○ Judicial (interprets laws): The Court of Justice of the European Union. Different principles followed: EU administrative law adheres to several fundamental principles, such as proportionality (actions of the EU must not exceed what is necessary to achieve the objectives), subsidiarity (decisions are taken as closely as possible to the citizen), and transparency (operations of the EU are conducted as openly as possible). Every action taken by the EU institutions is founded on treaties: - The EU opera - tes based on treaties which serve as its constitution. These treaties outline the scope and limits of the EU’s powers and the procedures to be followed by its institutions. These treaties have been approved voluntarily and democratically by all EU Member States: - Treaties are negotiated and agreed upon by the member states and then ratified according to their constitutional processes. This democratic approval underscores the legitimacy of EU actions. 1 I. INSTITUTIONS: Basic Scheme 1. Council of the European Union (The Voice of the Member States): ○ What it is: A key decision-making body made up of government ministers from each EU member state. ○ Role: Represents the interests of the member states. ○ Function: Each country decides which ministers will attend based on the policy area (e.g., agriculture, finance). They meet to discuss, amend, and adopt laws and coordinate policies. 2. European Commission (The Guardian of the Common Interest): ○ What it is: An executive body responsible for proposing EU legislation, implementing decisions, and upholding the EU treaties. ○ Role: Acts in the interest of the EU as a whole, not individual countries. ○ Function: Proposes new laws, enforces EU laws, manages EU policies and budget, and represents the EU internationally. 3. European Parliament (The Voice of the People): ○ What it is: The directly elected parliamentary institution of the EU. ○ Role: Represents the citizens of the EU. ○ Function: Works with the Council of the European Union to pass laws, supervise other institutions, and decide on the budget. Members of the European Parliament (MEPs) are elected by EU citizens and grouped by political affiliation, not nationality. 2 I. INSTITUTIONS: Main Institutions There a 7 main EU institutions and the institutional architecture goes as follows: 1. European Parliament: ○ Role: Represents EU citizens and is directly elected by them. ○ Function: Involved in passing laws, supervising other institutions, and approving the budget. 2. European Council: ○ Role: Consists of the heads of state or government of the member states, the President of the European Council, and the President of the European Commission. ○ Function: Sets the EU's overall political direction and priorities but doesn't pass laws. 3. Council of the European Union: ○ Role: Represents the governments of the member states. ○ Function: Shares legislative and budgetary powers with the European Parliament. It passes laws based on proposals from the European Commission. 4. European Commission: ○ Role: Proposes new legislation and ensures EU laws are followed. ○ Function: Manages the day-to-day business of the EU, implements policies, and allocates EU funding. 5. Court of Justice of the European Union (CJEU): ○ Role: Ensures EU law is interpreted and applied uniformly across member states. ○ Function: Settles legal disputes between national governments and EU institutions, and can take action against EU institutions on behalf of individuals, companies, or organizations if they believe their rights have been infringed. 6. European Court of Auditors: ○ Role: Checks the proper use of EU funds. ○ Function: Audits the EU's finances to ensure that EU money is properly accounted for and spent in accordance with the law. 7. European Central Bank (ECB): ○ Role: Manages the euro and sets monetary policy. ○ Function: Aims to maintain price stability in the Eurozone by controlling inflation and ensuring the stability of the financial system. The Parliament is the directly-elected EU Body with functions that can be grouped into: - Legislative - Supervisory - Budgetary Members of EU Parliament - Number of MPs for each country depends on population - However, no country can have less than 6 or over 96 MPs 3 - Every election the number of MPs are decided MPs are grouped by political affiliation, not by nationality Functions of EU Parliament - Legislative functions are allocated to the Parliament and the Council - Parliament can request that the Commission drafts new legislation on a particular topic - Commission will draft this - Then → Parliament will adopt this legislation - Agreements need to be reached between Parliament and MS regarding legislation Legislative Passing EU laws together with the Council of the EU based on European Commission proposals Deciding on international agreements Deciding on enlargements Reviewing the Commission’s work programme and asking it to propose legislation Supervisory Budgetary Democratic scrutiny of all EU institutions Establishing the EU budget, together with the Council Electing the Commission president and approving the Commission as a body Approving the EU’s long-term budget, the ‘multiannual financial framework’ Granting discharge ie. approving the way EU budgets are spent Examining citizens’ petitions and setting up inquires Discussing monetary policy with the European central bank 4 I. INSTITUTIONS: Council of the European Union Main function - Government minister from each MS meet at the Council to discuss, amend, and adapt lows + coordinate policies - Ministers have the authority to commit their governments to the actions agreed on in the meetings - The main decision making body of the EU in conjunction with the Parliament - If there is no agreement between the two → no new legislation is passed European Council vs The Council - European Council → where EU leaders meet to set the broad direction of EU policy-making - A political body - Council of Europe → not an EU body at all - International association aimed at protecting human rights - Not subject to any kind of EU legislation - Acts as an international association What does the council do? 1. Negotiates and adopts EU laws together with the Parliament based on Commission proposals 2. Coordinates EU countries’ policies 3. Develops EU foreign and security policy based on European Council guidelines 4. Concludes agreements between EU and other countries or IGOs 5. Adopts the annual EU budget with Parliament EU Council membership - There are no fixed members of the Council - Members of the Council are government ministers from each country - If the council discusses matters of environment → each MS will send the minister in charge of environmental affairs - Each country elects its own ministers to go to Council based on the topic that will be discussed at EU level 5 I. INSTITUTIONS: The European Commission Promotes the general interest of the EU by: - Proposing + enforcing legislation - Implementing policies Main functions 1. Proposes new laws to the Parliament and Council 2. Enforces EU law (which must be approved by the Parliament and Council) 3. Manages EU policies and allocates funding 4. Represents the EU internationally Parties involved - Political leadership → provided by a team of 27 Commissioners - One from each MS - Led by the Commission president → decides who is responsible for which policy area/portfolio - Day-to-day running of Commission business → performed by Commission staff - Lawyers, economists, etc. - Organized into departments known as Directorates-General (DGs) - Each DG is responsible for a specific policy area/portfolio I. INSTITUTIONS: Other Institutions Institution European Council Court of Justice Court of Auditors European Central Bank Role Defines the general Ensuring EU law is political direction and interpreted and applied priorities of the EU the same in every EU country; ensuring countries and EU institutions abide by EU law To check EU funds are collected and used correctly and help improve EU financial management Manage the euro keep the price stable and conduct EU economic and monetary policy Members I. heads of state or government of EU countries 1 from each EU country ECB president and vice president and governors of national central banks from all EU countries II. European council president III. European Commission President a. Court of justice: 1 judge from each EU country + 11 advocates general b. General cort: 2 judges from each EU country 6 II. SOURCES OF EU LAW Quick Overview: - Commission → proposing new legislation - Parliament → adopting legislation II. SOURCES OF EU LAW: Primary Sources Primary Sources/Legislation: Treaties - Agreed and ratified by all MS - The ‘constitution’ of the EU - Treaty of the EU (TEU) → contains general provisions defining the Union basically the profile of the eu ( what, who) - Contains the basic constitutional principles on which the EU is based - Sets out the EU’s purpose, democratic principles, institutions, and governance framework - Sets out provisions on enhanced cooperation, external action, and the EU’s common foreign and security policy - Treaty for the EU (TFEU) → contains specific provisions with regard to the Union institutions and policies - Contains the policy areas in which EU Institutions and MS can be active - I.e., Environmental functions - So, this treaty says that the European Institution must pursue environmental objectives concerning climate change - Also sets that MS are obliged that this objective is fulfilled - Main provisions are the 4 freedoms - Free movement of: goods, persons, services, and capital - Charter of Fundamental Rights (CFR) → contains large number of fundamental rights - Although not incorporated in the treaties has the same legal value as them 7 II. SOURCES OF EU LAW: Secondary Legislation Article 288 TFEU REGULATIONS, DIRECTIVES, DECISIONS = BINDING legal acts RECOMMENDATION AND OPINION = NOT BINDING legal acts What is Secondary Legislation? Secondary legislation is made based on the primary treaties (like TEU and TFEU) and consists of specific rules and laws that apply in the EU. Think of it as detailed rules made to apply the general principles set out in the primary treaties. Regulations - General application/apply to everyone in EU countries - Binding in its entirety - Directly applicable in all MS (different from directives) - Once approved MS don’t have to do anything else → regulation will apply to their territory - Do not need transposition act - However, to achieve effective application additional legal arrangements at national level are usually made - Example: If the EU passes a regulation on food safety, it immediately becomes law in all member states. They don't need to make their own laws about it; they just follow the EU regulation. Directives - Binding upon each MS to which it is addressed as to the result to be achieved - Directives say what goals need to be achieved, but countries can decide how to achieve them. - Not Directly Applicable → Countries need to pass their own national laws to implement the directive. - Example: If the EU issues a directive on reducing air pollution, each country must create its own laws and regulations to meet the pollution targets set by the directive. - Must be transported to national legislation - Legislative act approved at MS level to set the contents of the directive at state level - Allowed to decide the form and method they use to transpose - Has indirect effect - Exceptionally, can have direct effect in MS in three cases: 1. The directive has not been transposed into national law or has been transposed incorrectly 2. The provisions of the directive are imperative and sufficiently clear and precise 3. The provisions of the directive confer rights on individuals Decision - Binding in its entirety - A decision which specifies those to whom it is addressed shall be binding only for them - I.e., Google Case → sanction through decisions - Different from directives → EU laws relating to specific cases + directed to MS(s), companies, private individuals 8 Recommendations and Opinions - Shall have no binding force - E.g., when MS are unsure how to go about regulation so recommendations are given Adopting Directives and Regulations 1. Commission proposes legislation 2. Proposal discussed by the Parliament and Council 3. If successful, implemented into EU law II. SOURCES OF EU LAW: Regulatory (Non-legislative) Acts Regulatory Acts - Regulatory acts are detailed rules made to explain how existing laws should be carried out, especially for technical details. They don't create new laws but help implement the ones that already exist. Implementing Acts - Non-legislative acts adopted by the Commission - Or exceptionally by the Council of the EU - To specify how legislation should be implemented with regard to highly technical aspects - Primary responsibility for implementing EU law lies with EU countries - However, in areas where uniform conditions for implementation are needed adopted by the Commission (or exceptionally the Council) - Taxation, agriculture, internal market - Controlled by the EU countries - Citizens and other stakeholders can provide feedback on the draft text of an implementing act - For 4 weeks before the relevant committee votes to accept or reject it Delegated Acts - Non-legislative acts adopted by the Commission to amend or supplement legislation - Commission adopts them the on basis of a delegation granted in the text of an EU law (legislative act) 9 - Commission’s power to adopt delegated acts is subject to strict limits: - The delegated act cannot change essential elements of the law - The legislative act must define the objective, content, scope, and duration of the delegation of power - The Parliament and Council may revoke the delegation or express objection to the delegated act - Commission must consult expert groups - Once Commission has adopted the act, Parliament and Council generally have 2 months to formulate objections II. SOURCES OF EU LAW: Direct and Indirect Effect of EU Law - In practice, breaches of EU law by MS are quite common - Directives are not implemented in time or incorrectly - Treaties provisions are violated by national laws or national decisions; - Regulations are incorrectly applied or not applied at all EU Law Provides Two Solutions: 1. Direct Effect - A provision has DE when it confers rights to individuals - And they can directly rely on such rights in proceedings before national courts - Such provisions must be unconditional and precise - Authorities are under the obligation to apply such provisions - Applies to the vertical relationship: cases between individuals and the state (e.g., an individual suing a government body) - Reverse vertical effect of directives is prohibited - But reverse vertical effect of regulations is allowed once they have been entered into force 2. Indirect Effect - The principle of consistent interpretation - The authorities (administration and courts) of the MS are obliged to interpret their national law in light of the wording and purpose of the directives - Ensures that national laws are consistent with EU objectives. 10 Session 18&19 Judicial review of EU administrative action The Principle of Effective Judicial Protection Definition: Individuals must be able to enforce the rights given to them by EU law before an independent court. Consequences (necessary conditions/requirements that follow the principle to ensure it is effectively implemented) 1. Individuals must have effective access to a court 2. The process before the court must meet several institutional and procedural requirements a. Impartiality, independence, fair trial, reasonable time and public hearing 3. These courts should have at their disposal effective remedies by which EU law can be enforced and violations of EU law can be effectively restored e.g Award damages Level of realisation (How do we achieve judicial protection?) 1. EU level - Review of Legality: Individuals can challenge the legality of acts by EU institutions. - Failure to Act: Individuals can take action if an EU institution fails to act as required. - Non-contractual Liability: Individuals can seek compensation for damage caused by EU institutions. 2. National level - Provision of Remedies: Member states must provide sufficient legal remedies to ensure effective protection of EU law rights. - Preliminary Questions to the ECJ: National courts can refer questions to the European Court of Justice (ECJ) to clarify the interpretation or validity of EU law, ensuring that national rulings comply with EU law. Charter of fundamental rights of European Union Title VI Justice → Article 47 Right to an effective remedy and to a fair trial This charter has the same legal value as treaties Example: - If you believe an EU institution or your national government has violated your rights under EU law, you must be able to bring your case to court. - The court must be fair, unbiased, and able to provide an effective solution, such as stopping the unlawful action or providing compensation. 11 The Court of Justice of the EU Removal of European tribunal court No specialized courts There was a civil service tribunal whose main purpose was to know about conflicts between European institutions and its staff ○ But the European tribunal was removed in 2016 ○ Because COJ saw that there was a lot of work in General court so decided to give more means to it and remove the tribunal ○ Therefore all matters are known by General court or COJ no matter the topic General Court Primary Function → handles actions for annulment brought by individuals, companies, and EU governments. mainly deals with issues related to competition law, state aid, trade, agriculture, and trademarks. Main Action→ Action of Annulment—challenging the legality of European legislation directly. Court of Justice Deals with appeal decisions of General Court based only on law Requests for preliminary rulings from national courts Actions against the Member States for failure to fulfill their Treaties’ obligations MAIN: APPEALS + PRELIMINARY RULINGS that can only be brought by national tribunals and not by private individuals Appealing COJ decisions - Limit for instigating an appeal is 2 months since an act’s publication or since its notification to the applicant 12 - - Appeal procedure is free of charge If the action is well founded, the Union courts shall declare the act concerned to be void (generally ex tunc) - Ex tunc → the judgment generally has retroactive effect - Affects situations that occurred before the judgment was issued - Ex nunc → has effect from the moment the judgment is issued - Will not have any effect on past situations - However, they may declare the effects of the act as definite if there are legitimate expectations of individuals to be protected Moreover, violations of procedural requirements, such as the rights of defense, may lead to the annulment of the act only if such violation may possibly affect the content of the decision The institution whose act had been declared void is required to take the necessary measure to comply with the judgment of the EU court within a reasonable time - In general, EU courts are not competent to issue a replacing decision after the original one has been declared void The Court of Justice of the EU → Object of Review - In principle, the action for review of legality can be brought against every act of an EU institution intended to produce legal effects - This means if an EU institution makes a decision, creates a regulation, or issues a directive that has legal consequences, it can be challenged in court. - In practice, the most important objects of appeal are decisions, regulations, and directives Example: If the European Commission passes a regulation that a company believes violates EU law, the company can challenge the regulation in the EU courts. An action for review of legality is also possible against an institution’s failure to act: This type of action can be taken if an EU institution fails to do something it is required to do. 1. A failure to act is only unlawful if the institution wasn't under a duty to act 2. Before taking legal action, the concerned institution must be formally requested to act. - EU law does not prescribe a time limit within the call to act must be made - In general, this will have to be made within reasonable period after it has become apparent that the institution is not going to act - What is reasonable depends on the specific case - After the call to act, the institution has to 2 months in which to define its position - If it does nothing, the action must be brought before the EU Courts within a further period of 2 months - If the institution sets a position but the appellant disagrees. He must bring an action for review of the legality of this act 13 How Does the Court of Justice of the EU Work? Court of Justice 1. Written Stage - Parties give written statements to the Court - All of this is summarized by the judge, then discussed at the Court’s general meeting, which decides: - How many judges will deal with the case: 3, 5 or 15 (the whole Court) - Depending on the importance + complexity of the case - Whether a hearing needs to be held + whether an official opinion from the advocate general is necessary - While the Court is not obliged to follow this opinion, it almost always does 2. Oral Stage → Public Hearing - Lawyers from both slides can present their case to the judges and AG, who can question them - Can question them on matters of law and facts - If the Court has decided an Opinion of the AG is necessary, this is given some weeks after the hearing - The judges then deliberate and give their verdict - Takes 3-4 months General Court - Procedure is similar - Except → most cases are heard by 3 judges and there are no advocates general Action of Annulment → Introduction Action of Annulment → A legal procedure whereby parties can request the Court of Justice of the European Union (CJEU) to rule on the legality of EU acts Legal Regime → Articles 263 + 264 TFEU Function → Challenge the validity of EU acts Jurisdiction → Court of Justice of the EU 14 How Does the Court of Justice of the EU Work? Key issues 1. Object of the action Acts adopted by EU institutions (e.g., decisions, regulations, directives) that produce legal effects. ➔ Not applicable to acts by national authorities, recommendations, opinions, or preparatory acts. Only final decisions can be brought court Example Invalid Challenge: VW cannot challenge Commission guidelines because they are not binding. 2. Standing (Locus Standi) who can bring action Privileged Applicants: Member states, European Parliament, Commission, Council of the EU. They can challenge any EU act without proving any special interest. Semi-Privileged Applicants: Court of Auditors, European Central Bank, Committee of the Regions. They can challenge acts if they affect their areas of competence. Non-Privileged Applicants: Individuals and companies. They must prove: - The act is addressed to them (automatic standing). - The act is not addressed to them but affects them directly and individually. - The act is a regulatory act of direct concern that does not require implementing measures. 3. Time limit Deadline: Actions must be brought within 2 months. From Publication: For acts of general application (published in the Official Journal of the European Union). From Notification: For individual acts (notified to the concerned party). Preliminary reference procedure ? Basics Who Can Use the Preliminary Reference Procedure→ National Courts: Only national courts can use the preliminary reference procedure. Individuals cannot directly request a preliminary ruling from the Court of Justice of the European Union (CJEU). If you are an individual and have doubts about the interpretation or validity of an EU law, you must first challenge the national act in your national court. You can request the national judge to refer the question to the CJEU for a preliminary ruling. Who Decides Preliminary References→The CJEU issues preliminary rulings. National courts refer questions to the CJEU, which then interprets the EU law or assesses the validity of EU acts. Types of issues 1. Interpretation of EU law National courts can seek the CJEU's interpretation of EU law to ensure it is applied uniformly across all member states If the case is before a Supreme Court, it is generally obliged to refer questions to the CJEU if requested by the parties, unless the CJEU has already ruled on the same legal issue (doctrine of acte clair) 2. Validity of EU acts National courts can indirectly challenge the validity of EU legislation by referring questions to the CJEU Only the CJEU can rule on the validity of EU legislation; national courts cannot issue decisions on this 15 matter Structure of the Preliminary Reference Procedure 1. National Case Pending Before National Court a. Eg. sanction b. Gives you the right to start this national procedure, cannot start without it 2. Doubt of interpretation or validity of EU act a. Challenge validity or interpretation of European regulation 3. Suspension of national proceedings a. Until European COJ issues opinion 4. Preliminary reference →The national court sends the question to the CJEU for a preliminary ruling 5. preliminary ruling→The CJEU provides an interpretation of the EU law on the validity of the EU act 6. National proceedings resumed→applying the CJEU's ruling to the case 7. Final judgment →The national court issues its final judgment based on the CJEU's preliminary ruling Review of possible legal action at european level All legal actions that can be taken at European level Infringement action Infringement procedure can be issued to the ECOJ by european commission or other member states, not by natural or legal persons Exception of illegality The same as preliminary reference procedure But in the context of procedures taking place at the european level A direct way of challenging european legislation but in context of procedure already taking part at eu level of european COJ Eg. european commission enforces sancion of google via decision, google challenges and procedure is initiated at european level, maybe sanction is applying regulation previously approved by council, so google can request COJ of validity of regulation approved 16 Session 20&21 due process Due process What is due process Definition This principle refers to the idea of fundamental fairness ○ The government must treat an individual according to rules and procedures Purpose Designed to protect citizens from actions taken by state government, counties, towns, and cities ○ Application of this principle constraints the action of these governments, because the principle obliges them to follow procedures and rules set by the laws Types Right to a fair trial ○ Following ROL ○ Another dimension The right to be heard ○ One dimension Does due process apply to rulemaking powers of the executive Have to distinguish guarantees recognised in the laws for approval of admin regulations for the principle of due process → connected to rights individuals have when they have to face individual procedures against them I. Due process in comparable administrative law Do these constitutions recognise the principle of due process? US Constitution Most clear one, literally says due process of law It recognises application of principle of due process BUT context in which this principle is recognised is in the framework of criminal procedure ○ Clear Differentiation between administrative and criminal proceedings German Constitution Also find recognition of principle of due process We see that it was THOUGHT to apply to criminal procedures Spanish Constitution Article 25 includes administrative offenses Spanish constitution is more broader than the German one because it includes admin offenses There is an issue though about what types of procedures it applies to France Constitution 17  Arrested and imprisoned implies criminal, but accused can be about all In case of French declaration of rights, in the beginning it was thought to apply in context of criminal procedures, but we can see through cases that these provisions also serve to apply principle of due process to admin proceedings, and particularly to sanctioning ones OVERALL - US, GERMAN, SPANISH only criminal proceedings - FRENCH applies to administrative proceedings + criminal What are the most important guarantees recognised in the provision of the Constitutions 4 constitutions do recognise the application of the principle of DUE PROCESS The most important guarantee is application of due process which determines the two dimensions → information dimension: Individuals must be informed of the charges or accusations against them participation dimension: Ensures they can present their case, defend themselves, and be heard Can you find these provisions any reference to the sanctioning powers of the executive/ administration? Practically all of them only refer to judges and courts → judicial proceeding ○ Only Spanish refers to administrative Most constitutions primarily refer to due process in the context of judicial proceedings, particularly those of a criminal nature. In general no, because the 4 constitutions except the Spanish in article 25 which has administrative Right to a fair trial / Right to due process Right to fair trial/right to due process Scope of application (circumstances that trigger this right) the right to a fair trial and due process is typically triggered in judicial settings, especially in criminal proceedings. Content (what does the “fair trial” or “due process” requirement entail) Information dimension ○ Right to know what one is accused of → charges and evidence ○ Basically right to know what is the evidence at the disposal at authorities and courts and what is the basis of the accusation ○ First have to review if you have all the evidence that the authorities have at their disposal that they base the accusation on If you don't have that, then you request the authorities to send you the administrative file → FIRST STEP Participation dimension ○ Right to defend oneself against accusation → rebut charges and call into question evidence ○ Right to call into question the evidence and to defend yourself 18 II. Due process in EU administrative law Article 41 CFR It is in the charter of fundamental rights It is on one of the 3 constitutions of EU legislation ○ Primary legislation is treaties → which includes charter of fundamental rights Have to distinguish between EU convention of fundamental rights, and has been approved by Council of Europe ○ Not a document approved by EU institutions Right includes Right of every person to be heard Right to access documents Obligation of administration to give reasons for their decisions The ‘right of the defense’ In what kind of procedures is article 41 of the EU charter of fundamental rights and the rights of the defence applicable → These rights are relevant in contexts where the administration is making decisions that affect individuals, such as sanctioning procedures or other administrative actions. What is the content of this right Refers to the two dimensions Protection against self incrimination: can't be obliged by commission to prove that u committed an admin offense Right to legal assistance Right to be heard Session 22&23 property rights I. Property in comparative property law Press cases Pennsylvania farmers want higher eminent domain payments Pennsylvania farmers want higher amount of money because the expropriation of their plots of land concerning the execution of a highway widening project Are they entitled? ○ Compensation is required and it should be proportionate and just ○ So if they received a small compensation that is not proportional they can claim more ○ The government has a right because it is for public use Expropriation of empty homes owned by large-scale landlords in Catalonia Catalan government signed a plan to expropriate flats of owners that had a lot of properties to try and help those at risk of residential social exclusion 19 I. Property in comparative property law On one hand they want to introduce social housing which is in public interest Other hand, people are deprived of their property and it is not going to be transformed into only public space but also private It is up to the Court to decide See if it meets the requirement of a public purpose or not Can be argued whether the catalan argument is going to put properties for private use and whether that satisfies the public use in constitution The fundamental right to property Fundamental right to property Fundamental rights are BINDING upon all branches of government including executive ○ These rights constrain the actions of public authorities to ensure that individual rights are protected Most fundamental rights are included amongst the principles of admin law The right to property serves as a limitation on the government's power to expropriate private property. ○ Also known as compulsory purchase in UK ○ Known as eminent domain in the US ○ It is up to the Court to decide See if it meets the requirement of a public purpose or not Different jurisdictions US CONSTITUTION Amendment V States that private property cannot be taken for public use without just compensation. Need 3 requirements to deprive someone of their properties → Public Use:Property can only be taken for a purpose that benefits the public Compensation: must be fairly compensated for property Due Process: Individuals cant be deprived of their property without due process of law Principle of due process applies: have both the right to info and to participate in the administrative proceedings→ there is admin proceeding even if it lacks sanctioning nature, it may have harmful effects for citizens so due process applies FRENCH DECLARATION OF RIGHTS Article 17 Allows for property to be deprived in cases of public necessity, with fair compensation. Legally determined public necessity Compensation 20 The fundamental right to property GERMAN GRUNDGESETZ Article 14 Guarantees property and inheritance rights but also states that property entails obligations and its use should serve the public good. II. Limits are identified Expropriation shall serve for public goods Requirement of compensation Principle of legality: expropriation can take place only when admitted by the law SPANISH CONSTITUTION Article 33 Recognizes the right to private property and inheritance, but also states that the social function of these rights shall determine the limits of their content in accordance with the law. Public interest Property in EU administrative law EU Charter of Fundamental Rights Article 17: Right to property Is a fundamental right Right to property in EU administrative law Recognition of the right to property (right to own, use, dispose of, and bequeath) Recognition of the government’s power of expropriation, provided certain conditions are met (same ones) Requirements: ○ 1. Purpose: No deprivation except in public interest ○ 2. Compensation: Subject to fair compensation ○ 3. Procedure: due process under conditions provided by the law 21 Session 24&25 proportionality Principle of proportionality Definition Proportionality ensures that when the government takes action, the action must be appropriate, necessary, and not excessive in relation to the intended legitimate aim. To prevent the government from taking measures that are too extreme or overly broad compared to what is needed to achieve their legitimate objectives The government must have a legitimate aim or objective for its action. This means the purpose behind the action should be lawful and intended to serve the public interest. The measure must be necessary, meaning there should be no less restrictive means available that could achieve the same objective. If a less intrusive measure can be used, the government should opt for that. The benefits of the action must outweigh any negative impact on the rights or interests of individuals. The action should not impose an excessive burden compared to the benefits gained Has its origin in German administrative law I. Principle of proportionality in comparative administrative law 4 requirements (that must be met) 1. Legitimacy: there needs to be a legitimate aim for the measure + review whether admin authority issuing the act is allowed and has the competence to issue this admin decision ○ Does the measure pursue a legitimate goal, which falls within the remit of the admin. organ? ○ Legitimacy refers to the goal of the measure and the powers of the authority to adopt the measure at hand 2. Suitability: whether the administrative act adopted is the most suitable one to achieve the overall objective and goal + it doesn't mean that it has to be the best measure it just has to contribute to the legitimate measure ○ Is the measure apt to achieve the goal? ○ Contribution of the measure to achieve the goal 3. Necessity: whether the measure is the most appropriate one to achieve the goal or whether there are other mechanisms that would be less restrictive to the rights of individuals ○ Is the measure necessary to achieve that goal (in the sense that it is not possible to achieve it through less restrictive means)? ○ What are less restrictive means in this context? Alternative measures that infringe less on the freedom or interests of others. 4. Proportionality stricto sensu: ‘proportionality in the strict sense’ - analyse whether benefits arising from the measure will be more important than the harmful effects that the measure has for the rights of individuals thus balance between benefits of measure and harmful effects on the rights of individuals ○ Do the overall benefits of the measure outweigh its costs? ○ We have to confirm if the benefits arising from the measure exceed the burden it imposes (as the infringement of protected rights or interests). 22 I. Principle of proportionality in comparative administrative law ○ Most complicated step to meet in practice because administrative effects usually have harmful effects on people Example: ministry of transportation bans all heavy trucks from highways Scope of application of the proportionality test Scope of application of the proportionality test in comparative law Legislative measures The proportionality test is used to evaluate whether legislative measures (laws passed by a legislative body) are appropriate, necessary, and balanced in achieving their intended objectives. Administrative measures Administrative regulations: each statement of general applicability promulgated by an admin body that implements, interpets, or prescribes law Administrative decisions: application of the law to particular cases through individual decisions ○ Eg. a license authorizing the opening of a small restaurant, the expropriation of a plot of land, the imposition of admin fine on a company → Principle of proportionality applies to all of them Does the scope of application of the principle of proportionality differ between jurisdictions? Germany Applies this principle very extensively everywhere where it is applicable → legislation, administrative acts… England and France Application is limited ○ England applicable only to those matters of human rights ○ France applied only in admin law not legislation like Germany 23 Scope of application of the proportionality test Administrative Discretion The concept of ‘administrative discretion’ Concept Is the capacity and ability of authorities to choose appropriate means and make decisions in accordance to the laws Providing the administrative authorities to choose amongst different courses of action Examples Rules that allow the administrator to choose between taking an action or taking no action at all, given a set of factors ○ Eg. to grant or not to grant a license ○ Sometimes the authorities need to decide whether or not to grant the license because the particular wording of the law say that they MAY grant the license so they are then relying on the authorities to take on this decision Rules that force the administration to act, but leave it some leeway as to the exact course of action to follow ○ Eg. range of fines Challenge How to control administrative discretion ○ Legal basis → we have to find a law authorizing the administration to set the limits so we have the LEGISLATIVE POWER (EU Parliament and Council) involved which is somehow controlling the actions of the authorities ○ Procedure (due basis) → they have the possibility to review the limits before they are formally adopted and make comments before its formal approval, they have right to access admin file concerning limits that are going to be approved before its approval + make comments/allegations/pleadings to the limits that are going to be approved ○ Proportionality → before the approval of the action there should be balance between interest of communities and those whose rights will be infringed + looking at other means/less restrictive ones 24 Administrative Discretion This is an example of administrative discretion ○ A typical example because usually what laws do is set a specific range or amount that can be enforced as a sanction so authorities must calculate the amount of sanction that will be enforced ○ So since they have this possibility to calculate the amount amongst the range set in the laws; ○ Authorities are entitled to make a decision concerning the range and exact amount of a fine ○ Legislation sets this range of fine that can be enforced by the authorities ○ But they are entitled to reach a decision In this case they should apply the proportionality principle which is a way of controlling administrative discretion because authorities are subject to the principle of proportionality so when calculating the amount of the sanction they are allowed to justify whether the amount enforced is proportionate - taking into account the seriousness of the citation Whilst they have the power to decide amount of sanction, when calculating the amount, they have to take into account all the circumstances of the infringement which leads to there being the applicability of the proportionality test 25 II. Principle of proportionality in EU administrative law Scope of application of the proportionality under EU administrative law It is not an act It is enforced through the Charter of Fundamental Rights ○ Article 5 of the Treaty on EU Article 5 The principle requires that the adverse consequences of a certain measure for one or more interested individuals; May not be disproportionate; In relation to the PURPOSES and OBJECTIVES of such measure To assess whether the principle has been violated, the ECJ addressed 3 questions 1. Is the measure SUITABLE to achieve the objective of the measure? 2. Is the measure NECESSARY to achieve the objective? Or can the objective also be achieved by another measure, less restrictive or negative for individuals? 3. Is the measure PROPORTIONATE IN SENSU STRICTO? In simpler terms, do the benefits arising from the measure exceed the burden it imposes? 4. LEGITIMACY? EU institutions and Member States EU institutions → all legislative and administrative measures Member States → legislative and administrative measures adopted in order to implement EU law 26 Session 26&27 legitimate expectations Legal certainty and legitimate expectations Definition - Legal certainty ensures that laws and regulations are applied consistently and predictably. It includes the principle that laws should not be applied retroactively, meaning individuals should not be subject to new laws or changes to laws that were not in effect at the time their actions were taken - Legitimate expectation refers to the anticipation that the legal framework will remain stable and that individuals can foresee the consequences of their actions based on the existing laws and regulations. It implies that people expect laws to be applied in the same way they have been in the past. Examples + how legitimate expectations apply Canary island case Authorities decided to impose sanctions because they did not rent their homes Do you think that these owners of properties in the canary island had legitimate expectations concerning the fact that they would not be forced to rent their homes for tourist purposes? ○ They would have a legitimate expectation to use their property as they see fit and not be forced or obliged to rent their houses out for tourist purposes Do these expectations deserve to be legally protected? ○ Yes because legitimate expectations refer to: you expect laws to be used the way they were in the past Which branch of law should protect them? ○ The constitutional or administrative EPA case EPA is entitled to approve the emission standards limit in the US DO YOU THINK that these new emission limits approved by the EPA could be challenged on the basis of a legitimate expectation that the previous limits would be maintained? ○ Legitimate expectation prevent authorities to review the limits that were approved ○ EPA had the authority to change and review emission standards People should have the expectation that standards may change in the future What if the EPA had approved them from one day to the next without notifying the interested parties? ○ This would undermine legal certainty given that they were not even notified in advance that this change would happen so quickly ○ There is legitimate expectation that this change would not happen as fast as it did ○ According to legitimate expectation doctrine, the period of time provided to private individuals to be adapted to the new regulations does raise this concern according to the doctrine in the sense that authorities are entitled to review the regulations or decisions that they issue but must provide the individuals affect with sufficient time to adapt ○ The first issue here is that it will jeopardize the legitimate expectation for people to adapt 27 Legal certainty and legitimate expectations Legal certainty Defined as the fact that those subject to the law must know what the law is so as to plan their action accordingly EU courts require that ‘legal rules be CLEAR AND PRECISE, and aim to ensure that situations and legal relationships governed by community law remain FORESEEABLE The principles restricts the retroactive operation of the law and forbids a measure from taking effect before its publication, except under limited circumstances Clarity and precision → rules burdening an individual must be clear and precise What if the law had a positive retroactive effect? ○ EG. If you are sanctioned in the past and the new sanction created would reduce the amount you are sanctioned with ○ EG. a new law is published that specific conduct is no longer an infringement, can request positive retroactivity to take place to a court Legitimate expectations Closely linked to legal certainty Given its wide and often context-specific application, it is difficult to provide general guidance as to the conditions that have to be met to invoke the principle In public or administrative law, a legitimate expectation is a clear, unambiguous and unqualified assurance, underwood by those to whom it is given, that a particular course of action will be taken or a particular procedure will be followed If a failure to do so, this would be unfair or an abuse of power, it may be susceptible to judicial review In determining whether a claim has been made out, it is not essential that any person for whose benefit the promise was made should have relied upon it to their detriment, but it certainly helps ○ Bitter disappointment is not enough however Legitimate expectation doctrine Procedural ○ Andividuals expect authorities to follow the same procedural course as before Eg. If an administrative decision includes a specific appeal process, individuals can expect this process to be correctly followed ○ So if authority defined appeal that can be used in order to challenge decision, you have legitimate expectation that there will be correct course of action but sometimes authorities do not apply laws or regulations in the correct manner ○ When you receive admin decision you must REVIEW everything including the COURSE OF ACTION proposed by the authorities EG. In Spain an administrative decision says in the end that in case of appeal against administrative decision, the action of annulment against ECJ is the suitable course of action that needs to be taken. Later you find our that it was not the proper one = HENCE OBLIGED TO REVIEW FULL CONTENT OF ADMIN ACTION NEEDED TO BE FOLLOWED 28 Legal certainty and legitimate expectations EG. a public authority has included in the administrative decisions that a certain type of appeal could be lodged against such decision within a certain time limit, which is then shown to be incorrect Substantive/material EG. if authority makes a promise of approving a new collection of subsidies to be granted to certain companies, and you request for all the licences needed to operate the activity and later authority is deceived that subsidy won't be granted… ○ You have some expenses that were taken before (the hiring of lawyers, engineers…) ○ Then you are allowed to challenge admin decision of authorities confirming that no subsidies will be granted arguing the violation of legitimate expectation doctrine ○ Given that you have taken particular actions → licence, hiering… EG. a public authority has said that if certain requirements are met it will give public aid to all those who meet them and then does not grant such aid, arguing that there are no funds Legitimate expectations → Three main requirements I. justifiable reliance Ii. an affected interest Iii. priority for the protection of expectations > the public interest ○ Balance between the two ○ Eg. EPA reaches conclusion that environmental situation is very bad and find that some companies are emitting some pollutants that must be stopped just one day from another 29 1. Legal certainty in comparative administrative law Do they regulate it in the same terms? ○ They all establish you can't try someone for a law that wasn't passed before the crime was committed: all talk about retroactivity ○ The laws cannot sanction a conduct that wasn't included in the law at the time when the conduct was committed Do the jurisdictions apply legal certainty to criminal or admin procedures? ○ German = criminal → mention criminal laws and criminal offenses ○ US + French = does not reference specific type ○ Spanish = mentions administrative offenses 30 Session 28&29 transparency Transparency Press cases Spanish government demands ‘transparent and urgent’ Rubiales investigation The Spanish government on Wednesday demanded transparency and urgent action for the countries football federation against president luis rubiales over his kiss on the lips of a women’s world cup player FIFA is not a public authority, but a private org. ○ So principle of transparency applied to public authorities cant be applied to private individuals in the same way EU Commission criticized for lack of transparency Applicant was denied access to communications - Commission replied that it was under no obligation to look at emails requested as they did not constitute documents under EU regulations about public access and transparency Is the EU Commission subject to transparency requirements → yes Emails are not documents as resolutions, so they aren't subject to the regulations for transparency Is there any concern regarding the format of the decision of the authority? ○ The first does not matter when we are facing the right to access documents Spanish government using courts to avoid freedom of information requests Spanish government has begun taking legal action to avoid having to answer taxpayers who make information requests through a supposed transparency law it passed in December 2014 31