This chapter examines the development of administrative laws. It does so with a focus on the history of institutions, the supervisory mechanisms adopted to control administrative power. It does so, however, with an eye on the history of ideas, too. Our analysis begins with the claim that the English and French models of administrative justice must not be regarded only as ‘ideal-types’ in the Weberian sense but also as prototypes because they were borrowed and adapted in various other parts of Europe. Belgium and Italy provide interesting examples. This is followed by a discussion of how the French prototype was adapted in Austria and Germany with the emergence of another model. Exchanges between legal cultures are also considered. The focus then shifts to how they interact at the supranational level.
1 England and France: Ideal-types and Prototypes
Although judicial mechanisms preceded representative institutions, they gained in importance during the nineteenth century with the advent of new ideas concerning rights, often enshrined in written constitutions in the US, France, and other parts of Europe. By recognizing and protecting certain rights, constitutions envisaged at least some occasions when judicial review was necessary to set aside executive decisions, and in some cases (the US) also to set aside legislation.86 Subsequently, the demand for justice grew as administrative functions and powers expanded. On the supply side, the gap between the Anglo-American institutions and the French ones widened after 1799.
A brief outline of their distinctive traits may be helpful at this point. French law was based on the distinction between administrative law and private law, viewed as the law governing relations between individuals, in contrast with the
We should however put things in perspective. There are various reasons for this. Above all, as regards the French Conseil d’État the traditional distinction between the two periods of justice rétenue and justice déléguée has been criticized because, in reality, before that year very rarely did the final decision deviate from the opinions issued by the Conseil d’État.90 Moreover, even before 1872 the Conseil had defined procedures and standards for reviewing administrative action, including action against excès de pouvoir. It developed them further and thus gradually emerged as a fully-fledged administrative court.91 Dicey himself recognized this.92 He also recognized that, when considering how French droit administratif had been formed, it was much closer to English law than French civil law as it was a judicial product.93 Incidentally, in his day, English courts were beginning to develop more specific standards of conduct for public authorities.94 For some, this was sufficient. For others, creating a more effective system of public law would require a ‘new system of courts’ similar to those of France.95
There are, however, two problems with this approach. First, precisely because of the decision to stress some elements common to most, but not all, cases, such ideal-types failed to fully take into account certain tensions between the legal realities examined. For this reason, Laferrière, drew a more complex picture of the various systems. He opened his treatise with a comparative analysis and expressed the opinion that the structures of public law were heavily influenced by national traditions.100 But he observed that, despite opinions to the contrary, setting up administrative courts was not a prerogative unique to France.101 Indeed, some ‘foreign’ systems (those of most German states, Portugal and Spain) had the same main structures as French public law, notably separation of powers and a dual jurisdiction over disputes between citizens and the State.102 He distinguished these systems from other two categories. One was characterized by the absence of dual jurisdiction but at the same time by the enforcement of severe limits to review by ordinary judges (Belgium and Italy). The last group was based on a radically different way to conceive the separation of powers between administrative and judicial bodies (UK and US).103 Four decades later, another French public lawyer, Bonnard, went one step further.104 He described the age-old opposition between England and
The second problem with considering the English and French systems as ideal-types is more profound and requires greater analysis in the rest of this chapter. Essentially, the difficulty is that neither the English nor the French system of administrative justice were, in reality, just an ideal-type. Indeed, the French system of administrative law was seen as a model for other national legal orders. Similarly, the English system, with its emphasis on the role of the ordinary courts, was a source of inspiration. Both must, therefore, be thought of as prototypes.105
2 The Reception of the English Prototype: Belgium and Italy
Although Watson observed that the choice of examples is subjective,106 there are various reasons for starting with Belgium and Italy. Both were new States in the nineteenth century and, consequently, had to choose how to shape their administrative justice systems, and they initially made the same choice, opting for a ‘monist’ system. Although the ideal-type of judicial monism was England, it was to Belgium especially that Italian reformers looked. There was thus a direct relationship between those two legal systems.107 But both subsequently reversed their initial choice, albeit at different times and with different institutional ramifications.
For a proper understanding of how judicial institutions developed in Belgium, it is important to consider that it had been under French rule and answerable to the Conseil d’État from 1800 to 1815 and then became part of the Netherlands until 1830, under its Council of State. There was no remarkable discontinuity after 1815 as the Crown retained the power to adjudicate
It was a choice for which Dicey found more than mere assonance with the ideas underlying the English Constitution.112 Others went further, asserting that the Belgian choice was influenced by ‘the free institutions of Britain’.113 This idealized account does not, however, fully consider that the decision was dictated by negative political preferences; that is, a rejection of the previous model of administrative justice imposed by the Dutch. Moreover, ordinary courts were reluctant to affirm the tortious liability of public officials. Until 1920, these courts followed the so-called imperium doctrine whereby there could be no liability when public authorities acted within the exercise of their powers.114
In other parts of Europe, both intellectuals and political reformers saw the Belgian legal framework as a source of inspiration, and this was true of Italy too. Few years after political unification in 1861, political reformers vehemently criticized the bodies modelled on the French system during the Napoleonic
There existed, however, two important exceptions to the jurisdiction of Italian ordinary courts. First, the Council of State (established in 1831) retained its supervision over administrative cases brought before the King in the exercise of ‘gracious’ royal surveillance over the executive branch. This supervision was very similar to the French one in that the Council of State formally drafted an opinion that was almost always followed by the King. Secondly, the Court of Auditors kept its jurisdiction over the liability of public officials for acts detrimental to the public purse. Ultimately, the 1865 legislation opted for a monist system of judicial administrative review as in England and Belgium, but the jurisdiction of the ordinary courts was ‘far from being universal’.117 This was not, however, the end of the story. It is interesting to see how these political decisions would later be reversed.
3 The Reception of the French Prototype: Italy and Belgium
In Italy, things soon developed very differently from the expectations of the reformers who had worked on updating administrative justice in 1865. The individual interests seeking judicial protection quickly expanded, but the ordinary courts had great difficulties coping with this growing demand for justice.
What is certain is that a movement to improve administrative justice emerged in the early 1880s. At the roots of the movement, which was both cultural and political, lay a strong critique of the legislation adopted in 1865. In a famous speech, Silvio Spaventa argued that an effective system of administrative justice would inevitably require a new system of courts with a separate jurisdiction. He proposed the creation of a separate administrative jurisdiction, similar to that adopted in the Habsburg Empire and several German states.118 This shows that both the advocates of administrative courts and their opponents looked to foreign models. In 1889, a judicial panel was established within the Council of State on the grounds that it was easier to secure a mixed composition of lawyers and administrators essential to the sound administration of justice. Commentators have agreed that the new administrative court served to alleviate injustices for citizens, whose interests had previously remained unprotected. It thus served ‘to restore justice’.119
However, the Council of State could only annul unlawful administrative measures but could not award compensation for damages. ‘Full’ justice was thus unavailable. Moreover, while it enjoyed full functional independence from the executive, insofar as its decisions could not be modified, this was not the case in organizational terms as the executive could appoint new judges. Despite these limits – or because of them – the new institutional design would continue to develop over the decades to follow. Two other panels were created within the Council, and it was entitled to adjudicate disputes concerning not only legitimate interests but also rights vis-à-vis public administration services. Subsequently, the Constitution of 1948 confirmed a ‘dualistic’ system of administrative justice, as well as the exclusive jurisdiction of administrative courts concerning rights, albeit in a limited number of fields.120 As a result, the jurisdiction of the Italian Administrative Court is similar to the power of annulment of the French Conseil d’État.121
4 The Austro-German Prototype
The French model also exerted its influence in the Habsburg Empire. The story of administrative justice in the Empire is seldom told in comparative studies, partly reflecting the idea that it is more important to look at the ‘major’ legal systems. But this idea is both misleading and reductive because an analysis of the supposedly ‘minor’ legal systems often provides important insights, as in the Belgian case. Moreover, and more specifically, Austrian legislation gave rise to a new judicial institution, an administrative court, to regulate possibly disproportionate power by public authorities.
In the late eighteenth century, monarchs introduced a number of administrative reforms, also in the light of new theories of government (Cameralism).126
Few years later (1875), the Court of Administrative Justice (Verwaltungsgerichtshof – VerwGH) was created. It had a twofold jurisdiction as it adjudicated on disputes between the Empire and its provinces, as well as on disputes between the individual and the administration once all administrative appeals had been exhausted. In this respect, the Court’s jurisdiction concerned public law disputes and was shaped in general terms, as opposed to the limited powers granted to other courts in the German states.128 Importantly for our purposes here, the Court’s grounds for action included unlawfulness and the infringement of ‘essential procedural requirements’. On this laconic legislative basis, the Court assessed the legality of the procedures that gave rise to the adoption of administrative decisions and orders. It thus gradually established the basic principles of administrative procedure.129
It came to enjoy ever greater prestige. This was evident, for example, in the discussion that preceded the creation of the judicial panel within the Italian Council of State. It was also clear after the dissolution of the Habsburg Empire, when some nations that had been part of it established their own systems of judicial control over administrative action. Both Czechoslovakia and Hungary created administrative tribunals, entirely separate from the ordinary courts. This can be explained by the fact that the judges appointed often came from imperial bodies and enjoyed the prestige of the Administrative Court. The Polish case is even more interesting as it included peoples that had formerly come under the administration of three empires: the Habsburg, the German,
The evolution of German institutions was partly similar. In the early nineteenth century, some German states established a so-called ‘Administrativjustiz’,131 an instrument for handling complaints within the public administration, which was increasingly criticized for what was perceived as failures of justice. This dissenting movement supported the judicial solution (‘Justizlösung’). The political events of 1848 also seemed to have moved in that direction. The Constitution of the German Empire of 28 March 1849, adopted in Frankfurt, contained a Charter of Fundamental Rights and provided for their judicial protection. Section 182 provided for the end of the forms of justice in place within the administration and granted courts the power to ‘decide in all matters of law’.132 This provision showed striking similarities with the Belgian Constitution of 1831, though not as literally as in the case of the Italian legislation of 1865. However, the Prussian monarchy refused this constitutional framework, with its strong emphasis on individual rights and the principles of parliamentary democracy.
The debate about administrative justice continued in the years to follow. Two schools of thought emerged; one was favorable to the creation of ‘public law courts’, with an evident similarity to the English model, while the other school favored the development of mechanisms to eliminate the abuse of discretion but without interfering with administrative action. Although Gneist was an admirer of the English institutions, he was the leading figure of the second school of thought, which gradually came to prevail.133 The first administrative court, with independent judges, was set up in the Grand-Duchy of Baden in 1863. Other German countries followed, including Essen and Prussia (1875), Württemberg (1877), and Bavaria (1878). The Prussian Court, of which Gneist
In sum, from the outset, the Habsburg Empire had a single administrative court for the whole Empire as opposed to the plurality of courts that characterized Germany until the second half of the twentieth century. That said, in both cases, administrative courts were preferred to ordinary courts. The influence of the French model was undeniable. However, these courts had only judicial functions, being devoid of any advisory role, so a third model emerged.136 Other countries followed such model, including Sweden, where the Supreme Administrative Court was established in 1909, and Yugoslavia, where a specialist court was created in 1923.137
5 French Systematics in Germany
The influence of French administrative law is confirmed by a quick glance at the history of ideas, as openly acknowledged by Mayer, traditionally regarded
In his treatise, Mayer claimed that French administrative law was not simply more structured and systematic, but that it could – and had to – be taken as a model.143 He affirmed that if there was something commendable in it, it was its great respect for the activity of the State, while in Germany it had traditionally been seen as a private person.144 Another interesting ground was the separation of powers, regarding which he focused on French writers, albeit adopting a somewhat attenuated version of the doctrine.145 Moreover, he followed the French doctrines of fundamental rights and res judicata since German legal culture lacked any corresponding institution.146 We can, therefore, appreciate not only the nature of Mayer’s delimitation of the scope of administrative law, but also his method. His approach was scientific, though it was far removed from rigorous positivism in the sense that he did not see law as a mere datum
If we were to observe only this, however, we would not render him justice. In the opening statement of the preface to the French edition of his treatise, he observed that in the various nations that constituted the ‘old European civilization’, administrative law was based on certain general principles that were the same everywhere.147 Among these principles was the separation of powers. Legal mechanisms were required to ensure that public authorities did not infringe the limits stemming from the law. Mayer encapsulated such limits in the concept of ‘Rechtsstaat’.148 He viewed this type of State as the opposite of the Polizeistaat, where the law did not limit the powers of the State. There was still another principle, expressed by the maxim audi alteram partem. He began by noting that French law respected this maxim even when the executive power was a judge in its own case, as well as the similarities that existed between French law and that of Bavaria.149 However, for him, the right to be heard (droit à l’audition légale, Anspruch auf rechtliches Gehör) was a common feature of judicial proceedings in the other German countries in accordance with an established maxim of justice, though not a general principle of administrative procedure.
Mayer was fully aware of the many differences between French and German concepts and legal institutions, especially in view of the contrast between the uniform nature of the former and the variegated nature of the latter (administrative law was not unified until the 1960s). However, he pointed out two related but distinct phenomena. One was the influence exerted by French law over German law either indirectly, when it was adapted to the realities of the host State, or directly, when it was simply copied (‘simplement copié’); the other was the parallelism of ideas and theories (‘parallélisme des idées communes à tous les Pays’).150 Although this parallelism could have been constructed in a purely functional manner in the light of the new necessities produced by the growth of government, this was not the case. His argument goes much deeper; indeed, it touches on the fundamental point at issue. Mayer argued
6 German Systematics in Italy
In Italy, the initial similarities to French legal culture were evident in the work of Romagnosi. After teaching private law, he devoted himself to the emergent administrative law. The dominant influence of French public law philosophy can be seen first of all in the systematic approach to the study of administrative institutions. It may also be found in the belief that questions of public interest prevailed over private ones since this reflected to the ‘order of things’; it may also be seen in the concern for protection from the excessive exercise of power by public authorities.151 Well after Romagnosi, Italian lawyers devoted particular attention to the works of Gérando and Macarel.152
The 1880s were a time of discontinuity. A new strand of thinking with regard to public law was emerging. It was associated with Orlando and other public lawyers who were either his disciples or close colleagues. Two aspects of his scholarship, in particular, are relevant to our purposes here. The first was the influence of German systematics. After studying law in Italy, Orlando spent a year in Munich, where he became familiar with the works of Gerber and Laband concerning the Rechtsstaat. A few years later, he published his ‘manifesto’ for a new form of public law. He lived at a time of rapid social and political change, when the institutions of the new Italian State were yet to be consolidated. He affirmed that, in this context, the duty of public lawyers was to strengthen these institutions by adopting ‘the legal method’ and seeking the guidance of first principles.153 As Orlando put it in very clear terms, this method was inspired by German systematics, which, unlike others, made a clear distinction between the study of law and that of politics and philosophy. His theory of administrative law was also influenced by the ideology of the Rechtsstaat. He echoed Mayer’s emphasis on the administrative act, viewed as a manifestation of the sovereignty of the State, as well as the need for legal
The other aspect of his thought that deserves mention is his opinion on commonality and diversity. He argued that doctrinal constructs were largely different, while the general principles were the same everywhere.155 The same opinion was expressed four decades later by a German emigré to the US, Morstein Marx, for whom it was ‘proper to speak of Continental administrative law as one system, irrespective of distinguishable shades which mark the individual national setting’.156 The question we need to address in the next chapter is precisely whether there was simply a diffusion of the French model or a more complex phenomenon. Before so doing, it is helpful to pause a little, in order to point out the role of legal scholarship. For all the importance of judge-made law, scholars such as Hauriou, Duguit, Mayer and Orlando provided a distinctive and authoritative contribution to the development of law in terms of the search for a conceptual unity of administrative law, as well as of the definition of a body of general principles which could be used to control the exercise of governmental powers in order to avoid arbitrariness.157
7 Beyond the State: Judicial Remedies in the European Communities
The conjecture that a common core of administrative laws emerged during the last decades of the 19th century from the viewpoint of judicial review of administration can be further tested on another ground; that is, beyond the State. The ec/eu is fertile ground for our analysis, because there was an
The starting point is what is generally regarded as the genetic act of European integration; that is, the speech (drafted by Monnet and other high civil servants) given by the French foreign Minister Schuman on 9 May 1950.158 Schuman proposed, first, that the High Authority should discharge regulatory policy in two particular, but strategic, areas: coal and steel, and, second, that it would have the power to take ‘decisions’ which would ‘bind France, Germany and other member countries’, as well as decisions which would ‘be enforceable’ within their legal systems, ie, on the bodies operating in them. Third, Schuman envisaged establishing a ‘means of appeal against the decisions of the Authority’. There now existed the idea of a counterweight – although not yet of judicial remedies – to hold those regulatory powers to account. Judicial remedies in the strict sense were provided for by the Treaties of Paris (1952) and Rome (1957), which created the ecj. This topic has generated much comment in scholarly literature, and there are a variety of opinions on the nature of the Court. However, especially among the early commentators, at least three features of the new institution were clear enough.
Firstly, once the drafters of the treaties had taken the unprecedented decision to endow the High Authority with the power to take decisions vis-à-vis the States and businesses, they were faced with a ‘similar problem’ to that typical of national legal systems: how to ensure judicial protection from unlawful acts by public authorities, in this case of a supranational nature.159 They opted for a fully-fledged court of law, whose mission was to ensure compliance with the law in the interpretation and application of the treaties, namely the ecj.160 It had a clear ‘vocation to ensure observance of law and justice’.161 Schwarze, among others, has suggested that the switch from the internal appeals provided by the Schuman Declaration to judicial mechanisms was requested by the German delegation and that Monnet was initially reluctant to accept it.162 This is an interesting contribution to a debate that normally points out the
Secondly, not only did supranational institutions show the influence of national administrative laws, but even the basic principles governing their action were not newly created but ‘were largely drawn from the public laws of the member states’.166 According to Lagrange, a member of the French Conseil d’État who took part in the negotiations of the Treaty of Paris and was later one of the first advocates-general, the Treaty included all the actions allowed before the Conseil, particularly those for annulment and liability.167 More evidently, the Court’s grounds for judicial review bore a similarity to those found in French administrative law. There were four, including lack of competence, procedural violations, violation of the Treaty or ‘any other rule of law relating to its application’, and misuse of power (‘détournement de pouvoir’).168 Anyone familiar with public law systems will be aware that these grounds for review coincided almost literally with those of the Conseil d’État.169 It was precisely for this reason that some commentators argued that French administrative law could in many instances ‘serve as a valuable secondary source of law’ in interpreting the provisions of the treaties that drew on established French principles and rules.170 However, other national laws, notably those of Belgium and Italy, included grounds of review such as lack of jurisdiction, infringement of
Lastly, Article 33 of the ecsc Treaty confirmed the earlier remark regarding the importance of the twin objectives of seeking to ensure regulatory effectiveness and holding power accountable. It established that the Court could not examine the evaluation of the situation resulting from economic facts or circumstances in the light of which the High Authority made its decisions, except when it was alleged to have misused its powers. Although there is no provision in the eec Treaty with the same content as Article 33, in numerous instances the Court has declared that ec institutions enjoyed wide discretionary powers with regard to both the definition of the goals to be achieved and the choice of the appropriate means.173
At this point, a final comment is necessary. As the new administration was entrusted with powers that directly affected business, it looked like an obvious choice to draw inspiration from national administrative laws, and the French one was particularly important. It would not be appropriate, however, to say that there was simply a transposition of French institutions and norms. On the one hand, the administrative laws of the six founders of the Communities (France, Germany, Italy, Belgium, the Netherlands and Luxembourg) largely shared the grounds for appeal.174 On the other hand, there were additional and innovative elements, for example reference to ‘any other rule of law’. The ec thus developed institutionally as an amalgam of national systems. The next step of our analysis is to consider whether a common core emerged at the level of what the French call ‘le fonds du droit’. This matter will be addressed in the next chapter.
R McKay, ‘Judicial Review in a Liberal Democracy’ (1985), Nomos, vol 25, Liberal Democracy 123.
Dicey, Introduction to the Study of the Law of the Constitution (n 22) 331; G Braibant, La juridiction administrative en droit comparé, 52 Revue adm. 204 (1999); MP Chiti, ‘Monism or dualism in administrative law: a true or false dilemma?’, Revue admin. (52), 2000, 47.
Dicey, Introduction to the Study of the Law of the Constitution (n 22) 339; Bigot (n 35) xv.
Braibant (n 87) 204.
R Bonnard, Le contrôle juridictionnel de l’administration. Etude de droit administratif comparé (1934; Dalloz, 2006); Bignami (n 45) 151.
Following Shapiro, Courts. A Comparative and Political Analysis (n 67) 153, the term ‘administrative court’ will be used, to ensure consistency and to avoid the confusion which would derive from the word ‘administrative tribunal’.
Dicey, Introduction to the Study of the Law of the Constitution (n 22) Ch 1, 339.
id, 373–374 (“droit administrative” is … “judge-made law”).
M Loughlin, ‘Evolution and gestalt of the State in the United Kingdom’ in A von Bogdandy, S Cassese and P Huber (eds), The Max Planck Handbooks in European Public Law, i, The Administrative State (oup 2017) 481.
DB Mitchell, ‘The causes and effects of the absence of a system of public law in the United Kingdom’ (1965) 13 Public Law 95 at 118.
M Weber, Gesammelte Aufsätze zur Wissenschaftslehre (1922), English translation by EA Shils and HA Finch, Methodology of Social Sciences (Transaction Publishers 1949) 42–43.
Weber, Methodology of Social Sciences (n 96) 90.
id, 43.
Cassese, ‘New paths for administrative law: a manifesto’ (n 4) 10 and 16.
E Laferrière, Traité de la jurisdiction administrative et du recours contentieux (1st edn 1887, 2nd edn, Berger-Levrault 1896) 25 (une ‘grande diversité’, that is a huge diversity).
id, x.
id, 27.
id, 84–87. See also Bonnard (n 90) 219.
Bonnard (n 90) 125.
See Shapiro, Courts. A Comparative and Political Analysis (n 67) 153; G Marcou, ‘Une cour administrative suprême: particularité française ou modèle en expansion?’ (2008) 123 Pouvoirs 133, at 135. For further discussion of ‘prototypical cases’, see R Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53 ajcl 125, at 143 (for whom such cases serve as ‘representative exemplar of other cases exhibiting similar pertinent characteristics’). But see also A von Bogdandy, ‘Comparative Constitutional Law as Social Science? A Hegelian Reaction to Ran Hirschl’s Comparative Matters’, (2016) 49 Verfassung und Recht in Ubersee 278 (criticizing the use of a social science approach).
Watson (n 19) 18.
JC Escarras, Les expériences belge et italienne d’unité de juridiction (lgdj 1972).
See R Lievens, ‘The Conseil d’État in Belgium’ (1958) 7 ajcl 572, at 573. On the contrast between the Belgian and Dutch approaches, see Bonnard (n 90) 183. On the similarity between French and Dutch institutions, see Fromont (n 4) 21.
Belgian Constitution, Articles 92–93. For further analysis of those provisions, see A Giron, Le droit administratif de la Belgique (Bruylant 1881); P Errera, Traité de droit public belge (Giard et Brière 1916) 12; D Renders and B Gors, Le Conseil d’Etat (3rd edn, Larcier 2020) 5.
Belgian Constitution, Article 94.
See Renders and Gors (n 109) 5 and Y Marique, ‘The Administration and the Judge: Pragmatism in Belgian Case Law (1890–1910)’ in G della Cananea and S Mannoni (eds), Administrative Justice Fin de siècle. Early Judicial Standards of Administrative Conduct in Europe (1890–1910) (Oxford up 2020) 73.
Dicey, Introduction to the Study of the Law of the Constitution (n 22) 205.
S Galeotti, The Judicial Control of Public Authorities in England and in Italy: A Comparative Study (Stevens 1954) 11.
See Lievens (n 108) 574.
FG Scoca, ‘Administrative Justice in Italy: Origins and Evolution’ (2009) 2 ijpl 118, at 120; Galeotti (n 113) 11.
Bonnard (n 90) 195. See also PB Rava, ‘Administrative Courts under Fascism’ (1942) 40 Michigan Law Review 654, at 656 (pointing out the ‘Belgian pattern’).
Galeotti (n 113) 243.
S Spaventa, Giustizia nell’amministrazione (1880), in id, Giustizia nell’amministrazione e altri scritti (Istituto di studi filosofici 2007) 17.
Scoca (n 115) 125. See also Rava (n 116) 656 (same thesis).
See Miele (n 77) 430 (same thesis).
G Treves, ‘Judicial Review in Italian Administrative Law’ (1953) 26 U Chi L Rev 419, at 432 (for the remark that, comparatively, excess of powers was intended much more broadly than the French concept of détournement de pouvoir).
G Debeyre, Le Conseil d’État Belge (Douriez-Bataille 1963).
Lievens (n 108) 572.
Renders and Gors (n 109) 13.
See M Vauthier and P Moreau, ‘Etude sur l’influence exercée en Belgique par le Conseil d’Etat de France’ in Le Conseil d’Etat. Livre jubilaire pour commémorer sont cent-cinquantieme anniversaire (Sirey 1950) 481.
See, for further remarks, K Tribe, ‘Cameralism and the Science of Government’ (1984) 56 J of Modern History 263.
H Schambeck, ‘The Development of Austrian Administrative Law’ (1962) 28 Int Rev Adm Sc 215.
Bonnard (n 90) 252.
Schambeck (n 127) 219; A Ferrari Zumbini, ‘Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire’ in della Cananea and Mannoni (n 111) 41.
M Wierzborski and S Mc Caffrey, ‘Judicial Control of Administrative Authorities: A New Development in Eastern Europe’ (1980) 18 The Int Lawyer 607.
M Eichberger, ‘Monism or Dualism?’ (2000) 53 Revue admin 10, at 11.
The original German phrase is as follows: ‘über alle Rechtsverletzungen entscheiden die Gerichte’. For further remarks, see G Nolte, ‘General Principles of German and European Administrative Law: A Comparison in Historical Perspective’ (1994) 57 Modern L Rev 191, at 199; K Ledford, ‘Formalizing the Rule of Law in Prussia: the Supreme Administrative Law Court 1876–1914’ (2004) 37 Central Eur History 203, at 210–211.
See R Gneist, Der Rechtsstaat (Springer 1872) ch. xi. For further remarks, see M Stolleis, ‘Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic’ (2003) 16 Ratio Juris 266, at 269 and Public Law in Germany, 1800–1914 (Berghahn Books 2000) (distinguishing between administrative law and the previous science of the ‘policey’).
FJ Goodnow, ‘The Executive and the Courts’ (1886) 4 Pol Sc Quart 533, at 544. See also JW Garner, ‘The Judiciary of the German Empire (i)’ (1903) 17 Political Science Quarterly 511.
Weimar Constitution, Article 107 (English translation available on the website <
See Bignami (n 45) 153 (same remark).
On Sweden, see H Ragnelman, ‘Administrative Justice in Sweden’, in A Piras (ed), Administrative Law: the Problem of Justice (Giuffrè, 1991) 277 (for whom it was only after 1971 that the Court regularly cited its precedents) and H Wenander, ‘Full Judicial Review or Administrative Discretion? A Swedish Perspective on Deference to the Administration’ in G Zhu (ed), Deference to the Administration in Judicial Review. Comparative Perspectives (Springer 2019) 407 (explaining the national views about the type and intensity of judicial review). On the specialist court created in Croatia, see D Derda, ‘Administrative Law in Croatia’ in R Scarciglia (ed), Administrative Law in the Balkans (Cedam, 2012) 76.
See, among others, E Forsthoff, Lehrbuch des Verwaltungsrechts (1958), French translation by M Fromont, Traité de droit administratif allemand (Bruylant 1969) vii.
O Mayer, Theorie des Französischen Verwaltungsrechts (Trübner 1886).
id, vi-vii (my translation).
See Forsthoff (n 138) vii (for whom Mayer found the source of inspiration in French administrative law); P Gonod, ‘The Heritage of Otto Mayer: Actes Administratifs Unilatéraux and Verwaltungsakte in a Franco-German Comparison’ in M Ruffert (ed), The Model Rules on EU Administrative Procedures: Adjudication (Europa Law Publishing 2006) 17 (same remark).
Horatius, Epistulae, ii, 159.
O Mayer, Deutsches Verwaltungsrecht (1894), French translation by the author, Le droit administratif allemand (Giard et Brière 1903) i, § 1, xiv.
Mayer (n 143) viii. For further remarks on this point see, M Kunnecke, Tradition and Change in Administrative Law: An Anglo-German Comparison (Springer Verlag 2007) 69.
Mayer (n 143) 71–75.
id, 93 and 270, respectively.
id, xiii (for the remark that administrative law is based on certain general principles which are the same everywhere).
id, 10 and 24. The concept of Rechtsstaat had been developed in the earlier works of Robert von Mohl and Rudolf Gneist: for a retrospective, see E Hahn, ‘Rudolf Gneist and the Prussian Rechtsstaat: 1862–78’ (1977) 49 Journal of Modern History 1361.
Mayer (n 143) 69.
id, xiv.
G Romagnosi, Instituzioni di diritto amministrativo (1821; Il Mulino 2015).
See A Sandulli, ‘Administrative Law Scholarship in Italy (1800–2000)’ (2010) 60 Riv trim dir pubb 1055.
VE Orlando, I criteri tecnici per la ricostruzione giuridica del diritto pubblico (1889), in Diritto pubblico generale (Giuffrè 1954) 3. On Orlando’s role in the formation of a new public law, see S Cassese, Cultura e politica del diritto amministrativo (1973), French transl by M Morabito, Culture et politique du droit administratif (Dalloz 2008) 25.
For example, Gneist’s essay had been translated by Artom: Lo Stato secondo il diritto e la giustizia nell’amministrazione (utet 1881). It was to these German theories that also politicians such as Minghetti referred to in their critique of arbitrariness: I partiti politici e l’ingerenza loro nell’amministrazione (Zanichelli 1881) 237.
VE Orlando, Principi di diritto amministrativo (Barbèra 1891) 16.
See F Morstein Marx, ‘Comparative Administrative Law: The Continental Alternative’ (1942) 91 Un Pennsylvania L Rev 118; R Parker, ‘Review of Adamovich, Handbuch des österreichischen Verwaltungsrechts (1952)’ (1956) 5 ajcl 147 (same remark). But see JM Galabert, ‘The Influence of the Conseil d’Etat outside France’ (2000) 49 Int’l & Comp L Q 700 (mentioning Belgium, Netherlands, Italy, Greece, Turkey, as well as Egypt, Lebanon and Colombia outside Europe).
See C Harlow, ‘Changing the Mindset: the Place of Theory in English Administrative Law’ (1994) 14 Oxford J L St 419, at 420 (for the remark that England differed from this trend).
For further remarks, see JHH Weiler, ‘The political and legal culture of European integration: An exploratory essay’ (2011) 9 i-con 678, at 683.
See G Bebr, ‘Protection of private interests under the European Coal and Steel Community’, (1956) 42 Virginia L Rev 879, at 880.
Article 29, Treaty of Paris establishing the ecsc; Article 173, Treaty of Rome, establishing the eec. See Craig (n 60) 319 (observing that the ecj was “mainly an administrative court”).
Stein and Hay (n 55) 375. See Craig (n 60) 313.
J Schwarze, ‘Concept and Perspectives of European Community Law’ (1999) 4 Eur Public L 227, at 229.
Bebr (n 159) 881 (for whom the Community structure and its law were ‘strongly influenced’ by French administrative law).
Article 31, ecsc Treaty; Article 173, eec Treaty.
See DG Valentine, ‘European Coal and Steel Community’ (1955) 18 Modern L Rev 187 (commenting the first two rulings of the ecj).
Bebr (n 159) 881.
M Lagrange, ‘La Cour de justice des Communautés européennes du Plan Schuman à l’Union européenne’ in P-H Teitgen (ed), Mélanges Fernand Dehousse (Editions Labor 1979) ii, 137. See also T Buergenthal, ‘Appeals for annulment by enterprises in the European Coal and Steel Community’ (1961) 10 ajcl 227, at 228 (same thesis).
Article 33, ecsc Treaty; Article 173, eec Treaty.
Stein and Hay (n 55) 384–385 (adding that similar grounds for appeal can be found in common law countries, for example natural justice and abuse of discretion); Schwarze (n 162) 20.
Buergenthal (n 167) 228, fn 7.
Stein and Hay (n 55) 383.
Article 36 (1), ecsc Treaty. For further remarks, see Bebr (n 159) 896.
Stein and Hay (n 55) 393; P Craig, ‘Legality, Standing and Substantive Review in Community Law’ (1994) 14 Oxford J Leg St 507, at 532; id. (n 60) 351 (describing the Court’s ‘light touch’ on facts and discretion).
Bebr (n 159) 881; Lagrange (n 167) 139 (according to whom the French system was, at least in part, ‘connu du droit des autres Etats members’; that is, known by the other legal cultures).