1 Factual Analysis and Theory Development

As indicated in Chapter 1, it is part of the thesis of this book that the nature and extent of the common core of European administrative laws can be better understood through a change in methodology. The argument presented initially, already illustrated more extensively in a previous article,⁶⁸⁸ is that there appears to be an increasing awareness that the traditional approach to legal comparison adopted is inadequate. First, it has a preeminent, if not exclusive, focus either on commonality or on diversity. This is questionable because both commonality and diversity are important, particularly in the European context, where the recognition of common principles and constitutional traditions coexists with the duty to respect national laws and traditions, as shown in the previous two chapters. Second, all too often the traditional approach has been limited to the juxtaposition of the solutions to certain problems which can be found within each legal system, without moving to comparison, properly intended. This implies considering not just matters of style, but the similarities and dissimilarities between legal systems concerning le fond du droit.⁶⁸⁹ Thirdly, moving from the critical to the constructive side, our analysis must be an analysis of law not only as it is established by legislation, but also as it is applied.

Arguably, a factual analysis is all the more helpful in the field of administrative law for the two reasons illustrated in Part 1. Historically, the consolidation of administrative law during the 19th century was not the product of legislation, but of judges and jurists. Even when legislation has become more pervasive, during the 20th century, it rarely has had a general scope of application. An exception is the adoption of administrative procedure legislation, which is increasingly a common trait of European systems of administrative law, especially within the EU. However, there are significant exceptions concerning not only the UK and Ireland, but also legal systems where private law is codified since more than two centuries, such as Belgium, or one and a half centuries, such as Romania. A factual analysis has, therefore, been utilized in a series of workshops where hypothetical cases have been discussed to ensure they were fit for all the legal systems selected for comparison. Hypotheticals have revealed both similarities and differences, concerning the deep structures of European administrative laws.

One of the most interesting hypothetical cases is that which concerns the revocation of a license inaudita altera parte.⁶⁹⁰ A public authority decides to withdraw the license for selling a certain type of product, such as newspapers or pharmaceuticals on the grounds that certain conditions specified by the license have not been respected. The licensee claims that the withdrawal of the license without a hearing to ascertain the facts alleged by the public authority constitutes a deprivation of benefits incompatible with procedural due process of law, in terms of a fair hearing. What matters is not simply whether the licensee’s claim is likely to be successful before a court. It is also which arguments would be relevant, including constitutional provisions and those of general and particular statutes, and how they would be interpreted by the courts; for instance, whether what is required is a hearing before the withdrawal is formally decided or at some stage after the decision. The issue is whether there are similarities that could be expressed in terms of principles and standards of administrative action. Factually, a common procedural standard exists and can be formulated in terms of a requirement that the licensee be given a reasonable opportunity to be heard before the final decision is taken. Failure to comply with such requirement makes the administrative decision invalid. Operational rules differ, though, as to whether a hearing must be held. The consequence of invalidity differ, too, because in some legal systems the licensee may only obtain its annulment and a limited amount of damages, while in others these would be granted more widely.

This case confirms the general points made earlier and raises two further ones. It confirms, first, that the areas of agreement and disagreement are interlaced, often in complex ways. Accordingly, the area of agreement cannot be formulated without taking its limits into account. Second, it shows the difference between a mere juxtaposition of national solutions and a comparison, precisely because the purpose of the factual analysis is to shed light on similarities and dissimilarities. A factual analysis also differs from a compilation of judicial decisions. It concentrates on specific cases or situations, but it implies a diverse type of intellectual exercise; that is, consideration of a variety of legal formants, including governmental practice and background theories of public law. Consequently, we must guard ourselves from creating a sort of unreal courtroom atmosphere as if the courts were the only key actors in the field of administrative law. This is the implicit assumption underlying the traditional approach to judicial control of the executive. However, administrative law has a much wider ambit and is characterized by the existence of political and administrative institutions. Accordingly, it is always important to consider both political guidance, for example through circulars and guidelines. It can be helpful, moreover, to take a serious interest in the reports of non-judicial bodies, such as external audit institutions and ombudsman, especially when considering the management side of administrative law, for example in cases concerning the delivery of benefits for unemployed persons.

The further points which arise concern the limitations of factual analysis and its relationship with theory development. One thing is to say that there are good reasons to be skeptical of a legal analysis restricted to rules, because there are problems that are not covered clearly by existing rules or new problems. Moreover, rules are often not self-operative, in the sense that their application is influenced by the facts that are found, as well as the doctrines of law that are deemed to be best applicable to a given case. Another thing is to say that attention should not be directed to rules, especially those made by legislatures. This would be questionable in the field of administrative law and for the law tout court, because both officers and judges do not enjoy unlimited discretion. Moreover, parliamentary legislation, including that governing administrative procedure, plays an important part in recognizing the ideals and values that are shared within a certain society. Thus, for example, the fact that several codes of administrative procedure define general principles such as legality, due process, proportionality and transparency may be viewed as a symptom of the willingness to show adhesion to the values upon which regional organizations are based, if not as a rhetorical exercise. Concretely, a factual analysis has to be seen in proper perspective and this implies devoting adequate attention to rules.

It also implies that factual analysis and theory development should not be seen as being methodologically independent and static. On the one hand, legal theories, particularly those concerning general principles such as those just mentioned, are important for the attempts to fashion a generally acceptable framework within which facts can be evaluated. On the other hand, if we consider the standards of administrative conduct that may be inferred from general principles as testable hypotheses, a factual analysis provides us with a valuable test of both legal relevance and generality. The above indicates that a better understanding of both the common core and the limits of its extent is unlikely unless we simultaneously focus on the order of the events that are legally relevant and on the order of representations of those events; that is, legal theories.⁶⁹¹ Hopefully, this will become clearer when discussing the terms in which the common core may be delineated.

In the meantime, we shall discuss another issue, which concerns constructivism, a two-faceted topic involving related but distinct aspects. To begin with, while some deem that legal theory should simply explain how to identify the laws and customs that relate to a specific legal question, others contend that it should be acknowledged that those who construct theories also build knowledge, rather than passively ascertaining legally relevant facts. There is nothing necessarily wrong with any of these assumptions. A theoretical bias underpins each assumption, and each perspective has implications for research. That said, for the sake of intellectual clarity, assumptions should be made explicit, and their consequences must be considered.⁶⁹² In the previous chapters, this task has been accomplished, first, by observing that not only judicial doctrines but also background theories of public law are crucial to determining the solutions to both old and new problems and, second, by showing the relationship between the standards of administrative conduct and the values upon which regional legal orders are based. In brief, the argument here is that such values have implications for administrative procedure and that a theory of administrative procedure that takes into account how these standards are shaped in the real world has added value in terms of understanding the meaning and importance of values.

The other facet requires a slight digression into the literature concerning the common core. When discussing the fundamental experience gathered over more than twenty years in the field of private law, Shapiro observed that, despite every good intention, a legal comparison that was meant to be a purely scientific endeavor could turn out to be something different, i.e., that it could be used for prescriptive ends and, as a result, become involved in law ‘reform’, even without formally being a lawmaking activity.⁶⁹³ It cannot be said that there is little possibility of this happening, or none at all. However, the crucial empirical question that this essay has examined is whether there exist shared standards of administrative conduct and which are their limits, while the crucial theoretical question concerns the nature of the common core. Whether judges and other public institutions should use those standards is, of course, another important question, but a different one, because it concerns the normative sphere. In other words, a distinction must be made between the discovery that, in concrete terms, there is agreement among the majority of European legal systems concerning a certain standard of administrative conduct – lacking in only a few – and the observation that it would be desirable for either functional or equitable reasons to adopt it within the latter.⁶⁹⁴

2 The Common Core: An Overview of the Argument to Come

What are the consequences of our diachronic and synchronic comparison for the hypothesis set out at the beginning of this essay, namely that there are not only numerous differences, both old and new, between European administrative laws but also some shared and connecting elements, or a common core? Obviously, it is not sufficient to intone the expression ‘common core’, as if it provided a self-evident answer. For some, the existence of the common core should be taken for granted,⁶⁹⁵ while others are skeptical about it. There may be agreement that there is indeed a legacy from the past, from ius commune, yet this does not necessarily imply that there is anything more than a set of shared general, if not generic, ideas, such as ‘justice’. There may be agreement that, after seven decades during which ‘regional’ organizations have defined standards of administrative conduct, the common core that initially existed has changed. However, national traditions persist and must be respected. This section thus provides an overview of the argument to come.

First, the meaning and importance of the ‘common core’ of legal systems can be approached from several angles. The historical development of the concept is itself relevant. It is an interesting and instructive story. Contrary to the popular belief that in England there was no such thing as administrative law, and there could not be because it was incompatible with constitutional principles and values, England developed administrative law well before the Victorian age (1837–1901). Moreover, in the absence of extended and systematic legislation such as the laws established by the civil codes of many civil law countries, everywhere the courts developed standards of administrative conduct, with striking similarities. It may be tempting, therefore, to follow the functionally oriented literature that focuses on the ‘convergence of European administrative laws’. However, the idea of convergence is itself questionable. And so is the use of broad concepts such as the ‘common legal heritage’.

Second, it is precisely because one of the distinctive traits of the comparative enquiry, whose results are discussed in this essay, is a strong awareness of history that an evolutionary view of the common core is necessary. If there is one thing that emerges from the literature on due process, it is that ‘tradition evolves’.⁶⁹⁶ However, an adequate understanding that history does not follow a linear and progressive path is equally necessary. Recent developments concerning the relationships between civil law and common law systems must also be considered and assessed.

Third, even if a common core exists, its contours must be fixed. Schlesinger observed that while the existence of ‘some kind of ‘common core’ [was] hardly challenged’, there arose questions ‘as to its nature and extent’.⁶⁹⁷ Others added, ‘the extent to which the common core can be used as a working tool’.⁶⁹⁸ Our comparative inquiry suggests some answers to those questions. As regards the nature of the common core, it does not consist merely in ideals, such as justice, which can be said to exist in every legal system, but in a set of canons of administrative conduct.⁶⁹⁹ The extent of the common core is another important aspect for which the factual analysis has proven to be helpful because it has shown that the area of disagreement between legal systems is less significant than could be expected on the basis of the comparative study of administrative procedure legislation. There remains, lastly, the question of the use of the common core as a ‘working tool’. This is apparently a simple question in the light of the research’s intent to contribute to the advancement of knowledge. But some of its practical implications deserve further attention.

The structure of the ensuing argument is, therefore, as follows. The discussion begins with the concept of ‘common core’. The focus then shifts to its development. This is followed by discussion of the nature, extent, and uses of the common core.

3 The Common Core: Concept and Issues

There is a wealth of literature exploring the common core, but considerably less dealing with the concept itself. It is necessary, therefore, to press further and to inquire more specifically as to the nature and relevance of the common core of administrative laws in the European legal area. The argument proceeds in three stages. It is reiterated that the incommensurability issue is less problematic than had been thought by some, and that a proper appreciation of the reasons why it is not also has implications for the debate concerning the common core in our case. The second step will be a discussion of why the concept of common core is to be preferred to other analytical tools. Thirdly, it will become apparent that the concept under consideration here is not a substitute for ‘common ground’ and similar phrases; it is a concept that must have a precise definition for various reasons.

It might be contended that the hypothesis that a common core exists is implausible. Two complementary arguments might be brought to this end. The first is grounded on epistemology as it does not discuss facts or legal realities but concerns their interpretation. It is central to this argument that legal cultures are incommensurable. The other argument does not rule out that there may be commonality among certain legal systems; it is in fact admitted in relation to Continental Europe. However, it rules out that this commonality can affect common law systems. Thus, it was central to Dicey’s argument, in the last years of the Victorian age,⁷⁰⁰ that while some States had a distinct system of administrative law, others had even complex administrative machinery, but there was no administrative law as a distinct body of law governing public authorities.

These arguments will be briefly addressed in turn. To begin with, it can be observed that both are mixed arguments. Although at the heart of the first argument lies the notion of incommensurability, a closer look reveals that it is used prescriptively. As a matter of fact, the underlying assumption is that ‘comparative thought must […] address legal cultures as radically different’.⁷⁰¹ As indicated earlier,⁷⁰² there are three problems with this argument: first, the elision of the distinction between facts and perceptions; second, the juxtaposition between incomparability and incompatibility, as well as disregard for the existence of channels of communication between legal cultures; third, the fact that similar choices about legal instruments or institutions are not precluded by diversity of views about the final ends. The weaknesses of this argument are further demonstrated by the existence of similar normative preferences in the sense that it is important to preserve legal pluralism and the diversity that it permits,⁷⁰³ that do not preclude the recognition of the existence of some areas of agreement between legal systems, which are increasingly significant.⁷⁰⁴

As regards the other argument, reasoning which derives its authority from that of the author should be viewed with much caution. It is one thing is to acknowledge – as was the case previously⁷⁰⁵ – the importance of Dicey’s thought in forming a distinct mentalité. Another is to say that his account of public law was correct. Indeed, the idea that there was an extensive administration without administrative law was misconceived descriptively, and its prescriptive foundation was unconvincing. Moreover, Dicey’s harsh attack on French droit administratif did not prevent him from admitting that a comparative enquiry between England and France could, and did, reveal not only diversity but also similarity. Factually, our comparative inquiry has shown that similarities grew over the last century.

After explaining why the possibility that a common core exists and can be identified cannot be excluded a priori, it is time to trace its contours. This is more difficult than the previous analysis since the term ‘common core’ is used in various ways, sometimes as equivalent to ‘common legal heritage’, while others talk of ‘convergence’. It is important, for the purpose of conceptual clarity, to distinguish them.

Two decades ago, there was much talk of the convergence of administrative laws, as well as the convergence of European laws tout court. Both Cassese and Schwarze, among others, contributed to this body of literature. Cassese observed that, in contrast with the less recent theories about judicial review, there is a convergence of dualist and monist systems in a common pattern: judicial specialization in the supervision of administrative decisions.⁷⁰⁶ Turning from observation to prediction, he has also conjectured that a more or less unitary model of administrative might emerge.⁷⁰⁷ This change can be facilitated by European integration, according to Schwarze and others.⁷⁰⁸ But, while both parallel developments and the influence exerted by European integration are important for a better understanding of commonality, it is doubtful whether the same can be said of convergence. It can be perceived in three distinctive, albeit related, ways. First, the concept of convergence is problematic in itself because it indicates both the process of converging or moving toward uniformity, and the property of being convergent. Accordingly, clarification is required. Second, as observed earlier, the convergence of two or more systems of administrative law can be either spontaneous or favored (or, from a critical standpoint, imposed) by a third one, such as that of the EU.⁷⁰⁹ The third difficulty regarding the idea of convergence is that, symmetrically to the contrastive approach, it sheds light only on only some parts of the real, that is, those that allegedly converge. Conversely, it neglects the parts that diverge, although the reasons for divergence are important and must, therefore, be explained.

A word or two can also be said to explain why the concept of common core looks more appropriate than others to convey the meaning of the existence of an area of agreement between legal systems. There has been some discussion, before the ecj and in legal scholarship, about the existence of a common legal heritage. Thus, for example, in a pioneer case raised by a German administrative court about the proportionality of restrictive measures on economic rights, ag Dutheillet de Lamothe outlined a new perspective. He argued that the Community order included a ‘philosophical, political and legal sub-stratum common to the Member States from which through the case law an unwritten Community law emerges’ and added that ‘fundamental rights form[ed] the common heritage of the Member State’.⁷¹⁰ The Court followed his advice and famously ruled that respect for fundamental rights was inspired by the ‘constitutional traditions common to the member States’.⁷¹¹ A decade later, ag Warner referred to the existence of a ‘shared patrimony’.⁷¹² There is, of course, nothing wrong with this expression, nor with that focusing on ‘common heritage’. However, it is clear that they place emphasis primarily on respect for the past, as does the Preamble to the teu, which refers to the ‘inheritance of Europe’. Conversely, they pay less attention to the dimension of change and, consequently, to the innovative features of some standards of administrative conduct, such as openness, participation and transparency, which belong to a more recent generation of process rights.⁷¹³

A second, more important, distinction that must be made is between the common core and ‘common constitutional traditions’. Unlike the ‘common legal heritage’, the phrase ‘common constitutional traditions’ has a normative basis, as Article 6 teu makes a reference to it, as well as to the echr.⁷¹⁴ The limitation just mentioned – the focus on the past – also concerns this concept, to a certain extent. The object and purpose of ‘common constitutional traditions’ bear, additionally, a clear and exclusive relationship with the protection of fundamental rights,⁷¹⁵ while the standards of administrative conduct examined in this essay may, and often do, have other purposes. This can be exemplified by a fair hearing, a fundamental requirement that is characterized by a balancing of the needs of effective government against the necessity to protect individuals and groups from oppressive or mistaken governmental action. Balancing is a task of greater complexity for another procedural requirement; that is, the duty to give reasons, for which administrative efficiency must be weighed against the individual’s right to know the reasons upon which an adverse decision is based, also in view of an effective judicial review, as well as on parliamentary oversight on executive action.

The distance is even greater with another concept that has sometimes been regarded as equivalent to that of the common core; namely, the ‘common law of mankind’.⁷¹⁶ Even leaving aside the problematic nature of the concept itself, it is easy to observe that those who elaborated it sought to give a sense of the evolution of international law, or the organized world community, while our focus is on Europe.⁷¹⁷ Moreover, as Friedmann observed, this concept fails to acknowledge the different values upon which various legal systems are based.⁷¹⁸

That having been said, criticism of a concept is all well and good, but it must be replaced with something else. An attempt must thus be made to move from a critical perspective to a constructive one. Concepts such as common core, common ground and others all rest on the same underlying assumption; namely that between legal systems there are not only the differences on which comparative studies shed light, but also some shared and connecting elements.⁷¹⁹ However, the expression ‘common core’ is the one that best clarifies two basic features. On the one hand, it points out that between the various legal systems included in our comparison there is not simply a common ground, or an area of agreement, because what they share is their central part, as distinct from the remaining parts, and it is their foundational part, as it is related to the values, principles and standards shared by those legal systems. On the other hand, what they share is only their core because, as has been seen at the close of Chapter 10, regional legal orders are required by their founders – that is, the States – to respect national traditions and norms. The question that thus arises is how it is possible to reconcile these aspects. This question will be examined in the discussion of the nature of the common core. In the meantime we shall discuss its dynamics.

4 A Dynamic View of the Common Core

The discussion in the previous chapter about the legacy of ius commune has two ramifications. It shows that the desire to affirm that the common core of our era is grounded on that of the past should not cloud the diversity of modern legal systems and the innovative challenges our societies have to face. The other ramification of the preceding discussion concerns the development of administrative law. This does not simply mean that an understanding of the antecedents of our present set of administrative institutions is necessary. It has a more profound implication for the common core, which is not fixed and immutable but has evolved over the last two centuries. This point, one of more general importance, can be illustrated in two ways. The first is to look at the change that occurred in the last part of the Belle Époque. The second way is to point out the discontinuity that occurred after 1945, with the advent of regional legal orders, and at the same time to illustrate the reasons that advise against considering such legal orders in a linear and progressive perspective.

There is a strand in the history of institutions that highlights not simply the succession of different periods but also their differences. Demarking eras in this way can be useful in making headings for a narrative, but there is a fundamental problem with it. A period seems self-contained, characterized by ‘unique’ features, and these features obscure all the others. This problem emerges in the contraposition between the nineteenth century and twentieth centuries; the former viewed as the age of liberalism and the latter as the age of collectivism. In reality, Bismarck and other rulers took unprecedented measures to deliver certain goods and services to the citizenry, often with the aim of reducing the threat posed by socialism.⁷²⁰ The problem is equally evident in the contrast outlined by some, including Schlesinger, between a nineteenth-century characterized by a contrastive approach, as opposed to the previous period of ius commune, when the integrative approach prevailed.⁷²¹ Our diachronic comparison has shown that during the nineteenth century there was passionate parliamentary debate about administrative justice, in the same way that there were vibrant debates as to the foundational values underpinning other wide-ranging subjects, such as property and social security. It would be impossible in this section to convey the differences in focus and tone within the literature; nor is this the purpose of the present inquiry. It is the nature of these debates that interests us here as they were characterized by a polarity between legal nationalism and the idea of a common core. We have seen, in particular, that there were exchanges and transplants between England, Belgium, and Italy, as well as, at a later stage, between France, the Habsburg and German empires, and Italy. We have seen, moreover, the emergence of shared standards. These results of our research are confirmed by recent scholarship in the history of law.⁷²² Notwithstanding the rise of legal nationalism, throughout the century, the Code Napoléon spread across many European and Latin American countries. In the same period, whilst rejecting the hegemony of France, Spain, too, adopted a centralized administrative model.⁷²³ These processes of borrowings and transplants were favored by transnational intellectual circles, including the network that was built around the Société de legislation comparée, founded in 1867 and the network of international lawyers, promoted by the first sessions of the Hague conference held between 1893 and 1904. Those lawyers deemed that the legal landscape was characterized by a strong sense of belonging to a shared civilization.⁷²⁴

The other way to point out that an adequate understanding of the common core must be firmly grounded in the awareness of its development is to recall the twofold discontinuity over the years following 1945. When the first European Community – the ecsc – was founded in 1950, the bases of administrative authority had changed in all its members as a consequence of the new constitutional settlements. The common denominator was not only constitutional democracy but also that of recognizing and protecting human dignity. It was axiomatic that there had to be limits that served to keep public authorities within their assigned sphere of power, as well as controls to check whether those limits had been infringed. It is in this sense, and within these limits, that the constitutions adopted in Western Europe after 1945 could be said to express a ‘common ideology’, expressing the ‘common beliefs of the populations about the way they should be governed’.⁷²⁵ It is important to recognize that all the constitutions possessed these features to a greater or lesser degree. It is equally important to note that this ideology and rights-based guarantees are common to the countries that joined the EU after the transition from one-party States to constitutional democracies in the 1990s.⁷²⁶ Membership of regional organizations has reinforced these features. European integration after 1950 cannot be viewed solely as the business of sovereign States not dissimilar to other international treaties in the light of the transfer of functions and powers to shared institutions. Indeed, treaties granting rights to individuals, who can enforce them in their own name before domestic courts, and creating supranational courts acting as guardians of those rights, have entailed a new form of social ordering.⁷²⁷ Additionally, supranational legal systems have adopted norms aiming at ensuring coherence, such as Article 52 (4) of the EU Charter of Fundamental Rights, according to which “the meaning and scope” of the rights it contains shall be the same as those laid down by the echr. In conclusion, there is, other things being equal, a greater commonality between national systems of administrative law than there was prior to the establishment of the CoE and the EU, since, as mentioned previously, their general principles of law are binding on national authorities.

A word of qualification is, however, necessary. The growth of regional organizations has generated the expectation that the developments they have either caused or facilitated are ‘here to stay’,⁷²⁸ but it is not necessarily so. The UK case is instructive. Even before the accession took place, some argued that it would constitute an encounter between the common law tradition and the civil law tradition.⁷²⁹ The following decades saw the partial fulfilment of that expectation. The courts gradually revised old principles or their conceptions (for example, unreasonableness) and have embraced new ones, such as proportionality. There was even speculation about the retreat of the main pillar of English public law, parliamentary sovereignty,⁷³⁰ and in the same vein many studies indicating the emergence of new doctrines of rights. However, after almost five decades, Britain left the EU.⁷³¹ There has been a return of the principle of parliamentary sovereignty. The courts have not hesitated to redefine at least certain tenets of proportionality. This does not imply that it will be possible to return to the pre-accession State. Rather, it can be argued that membership of regional organizations should be regarded as a continuing process of adaptation, not without stasis and regress, as opposed to a legal bargain sealed once and for all time. The upshot of all this is that the concept of the common core provides us with a helpful vector for thinking about various issues concerning administrative law. But its contours are not fixed and immutable. Quite the contrary, they have altered over time and will most probably continue to change.

5 The Nature of the Common Core

At the beginning of this essay, we stated that the hypothesis to be tested was that there are not only differences between European administrative laws, highlighted by previous studies, but there are also some shared and connecting elements, or a ‘common core’, and that such elements relate not only to general ideals, such as justice, but can be formulated in ‘normative terms’. It is now possible to delineate the contours of the common core. There are various ways to organize the material that constitutes public law in the broad sense. This task will be accomplished in three ways, including the types of standards and the consequences that ensue from them, as well as the tools of legal thinking.⁷³²

As a first step, it is necessary to briefly clarify how the shared and connecting elements that form the common core are legally relevant and significant. It is not our intent here to give even a tentative summary of the general principles of administrative law in the current epoch. What may be usefully attempted, rather, is to outline three different types of legal requirements as they can be applied to various aspects of administrative procedure. These requirements fall into these different categories: a) requirements concerning the respect of the purposes for which public authorities are granted administrative powers and the limits cast on their exercise; b) minimum standards of procedural fairness and propriety; c) substantive principles of law which more or less directly influence the discharge of administrative powers.

In the first category is the legality of administrative action, which is beyond doubt an essential principle in modern systems of public law. It is manifest – among other things – in requiring the normative basis of each authoritative power, as well as in imposing the respect of the objectives set out in legislation; this is the source, for example, of abuse of power, or détournement de pouvoir. There is also a duty to respect any previously established procedure, in the sense that no alternative course of action may be followed; otherwise, an error in procedendo or a procedural error will arise (a détournement de procedure in the French terminology). Quite apart from their concrete manifestations, these requirements provide a yardstick, a way of measuring the discharge of administrative functions and powers, though the consequences of disregarding them may vary, as will be observed later.

Secondly, it may be said that there is another part of the common core of European administrative laws, including minimum standards of fairness and propriety, below which there is, at least, a strong presumption that administrative action does not fulfil the requisites to be regarded as valid. Among these standards are the fundamental maxims of natural justice; that is, nemo iudex in re propria and audi alteram partem. In particular, the latter implies, in addition to the right to be heard, other related rights, including to receive notification of the commencement of a procedure, to receive legal assistance, to gain access to documents held by the administration, and to submit documents and evidence. Increasing weight is given to the accuracy of the fact-finding activity that must precede any decision.⁷³³ Such minimum requirements of fair administrative procedure shape not only action that interferes with the individual’s rights, but also the positive State, including the disbursement of public money. They are completed by two other requirements. There is, on the one hand, a duty to give reasons. This duty is particularly appropriate to give a sense of the distinction between not so much a minimum requirement, but a procedural one, that is, to state the reasons for a given decision and the duty to provide adequate or sound ones, which implies converting the procedural requirement into a substantive one. On the other hand, there are duties to make the consultation and participation of both individuals and social groups not only possible but also meaningful, as has been observed with regard to the involvement of users and the reformulation of policy statements. It should, however, be noted that these standards are less clear cut than those concerning adjudication. It is one thing to hold that a procedure is unfair if the addressee of the final decision has not had any meaningful opportunity to be heard; it is another to determine how to provide equal opportunities for all those who seek to influence the adoption of new policy or rules because the procedure may become ‘terribly cumbersome’.⁷³⁴

Thirdly, it is with regard to the substantive principles of administrative law that a greater degree of uncertainty exists and, therefore the greatest amount of work remains to be done. It is in this field that further use of a factual analysis can render a valuable service to the advancement of knowledge. That being said, the use of established general principles to govern administrative conduct has been illustrated in some cases, of variable frequency in the daily management of public policies. Included among these principles, there is, first and foremost, proportionality, especially when administrative authorities exercise powers that impinge on fundamental rights, as in the case of disciplinary and sanctioning procedures. There is also a principle of transparency, which bears a strong connection with both the giving of reasons and the publication of rules. In this latter respect, there is also a connection with another principle, that of legal certainty, as we have seen with regard to partially unpublished rules.

In the light of these findings, the initial hypothesis – that is, that the common and shared elements that constitute the common core can be defined normatively, as distinct from mere ideals – can be examined at various levels of abstraction. As for values, within the CoE all legal systems can be said to respect background moral or political principles such as fairness and justice or respect for the rule of law and fundamental rights.⁷³⁵ At this abstract level, many courses of action, though not all, may appear to be justified. When we move away from values to general but still mid-level principles that serve to promote good governance, as well as the respect for rule of law and fundamental rights, such as judicial independence, due process of law and effective judicial protection, action taken by certain national authorities finds little justification or none at all. The ongoing debate, in political and judicial discourses, as well as in public law scholarship, concerning threats to judicial independence can be important in this respect. It remains to be seen whether public authorities must respect standards that have a different level of general application, though operational rules may vary.

The use of the term ‘standard’ is not without issues, both practically and theoretically. Practically, standards of broad applicability may not prove very helpful in deciding concrete cases. In legal theory, standards can be – as Hart puts it – both variable and invariable.⁷³⁶ The former translate general principles into mid-level but still general standards that decisionmakers must apply to particular cases and facts, for example by providing some type of hearing. The latter constrain exercises of power more rigidly. Thus, for example, the requirement to give reasons whenever the final decision adversely affects someone represents a minimum one, distinct from a requirement to give reasons that are adequate or even sound. What characterizes the common core of European administrative laws is precisely this: in addition to the commonality that exists at the level of values and principles, there is a set of common standards of administrative action. Their legal relevance and significance can be appreciated from three points of view.

First, general principles, standing alone, often fail to indicate the preferred course of action. They fail to specify sufficient constraints on public authorities, with the exception of ‘egregious’ cases, such as manifest and intolerable executive interference in the duration of judicial appointments.⁷³⁷ Conversely, the mid-level but still general standards of administrative conduct previously illustrated differentiate more clearly legal from illegal conduct. They do not stop government bodies from acting but require decisions to be made or actions to be taken in specific ways. Thus, for example, there is a right to be heard before a decision having unfavorable effects is taken, but the hearing can take more than one form. Likewise, there is a requirement to publish administrative rules, but the operational norms can and do differ. On the other side of the typology of legal precepts, these standards differ from precise rules. There are two reasons for this: they serve to guide administrative action as a whole, including the exercise of discretionary powers,⁷³⁸ and they reflect ideas and beliefs about the law shared by legal systems which differ in many important respects. The concept of ‘common core’ thus conveys the idea that what is common is the most basic or important part of national legal systems, in our case the mid-level standards of good administration which go beyond what is normally expressed by constitutional provisions, including the procedural constraints and requirements that serve to limit and structure the exercise of power and make it accountable.⁷³⁹

Secondly, as government action is subject to these standards, the rule of law requires public authorities to comply with these standards. As a consequence, any deviation from these standards may imply that an administrative action may not achieve the aim that it would otherwise fulfil. Corrective mechanisms are therefore available and interested parties can insist on government compliance. There are a number of options in this respect, one of which takes the form of the decision by a national court that a certain act or conduct disregarding one or more standards is either annullable or null. Another option, in the EU, is that after an infringement procedure commenced by the Commission, the ecj reaches the conclusion that a State has failed to comply with its obligations stemming from EU law. If the infringement persists, an economic sanction can be inflicted. There is yet another option in the case of conditional funding as compliance with certain standards constitutes the condition for the disbursement of Union funds.⁷⁴⁰ Lastly, within the CoE, the European Court of Human Rights has often found that national laws and practices breached the echr regarding, among other things, the impartiality of adjudicators, the right to be heard, the duty to give reasons, and the right to effective judicial protection.⁷⁴¹ There are two consequences when the Court finds that a State has failed to respect the Convention: it must revise its laws and practices and provide pecuniary compensation for unjust damage suffered by physical or legal persons.

A word of qualification is necessary, however. The consequences of disregarding these standards of administrative conduct differ. As we have just seen, more often than not, failure to respect them impinges on the validity of administrative action, on the basis of the fundamental precept that when a public body makes an invalid decision, in principle, this should be annulled, with a retrospective effect.⁷⁴² However, it is precisely because these standards of administrative conduct are procedural rather than substantive, any action that deviates from them is not necessarily invalid. Thus, for example, there are circumstances when the interested party either may not be informed of all the grounds supporting a potentially adverse decision or may be heard only after a public authority has taken certain measures to protect a collective interest.⁷⁴³ Likewise, full access to the documents held by a public authority may be postponed if an overriding public interest so requires. In this sense, and within these limits, the relevant standards of administrative conduct from the common core perspective are ‘flexible’.⁷⁴⁴ In other words, they differ from rules, although a part of administrative law scholarship holds that this may generate uncertainty and raise concern in terms of the rule of law.⁷⁴⁵

Finally, an important dimension of the common core concerns the tools of legal thinking. On the one hand, there are some basic concepts that are increasingly being shared within the European legal area. Although not all legal systems have adopted one type of administrative procedure legislation or another, as observed by Schmidt-Aßmann, the ‘idea of procedure constitutes [the] basic expression of a common European administrative law’.⁷⁴⁶ On the other hand, as national legal systems have been brought closer within the European legal area, jurists and judges have shown an increasing interest in the ways certain principles of administrative law are shaped elsewhere. Thus, for example, there has been widespread interest in the German conception of the principle of proportionality though similar precepts existed within other legal cultures. It is important to be clear, however, that this proposition does not mean that the content of particular administrative law principles is the same everywhere.

6 The Extent of the Common Core

It is equally important to be clear about the extent or scope of the common core of European administrative laws. What are important in this respect are the extent and limits of the common core.⁷⁴⁷ In other words, we are not only interested in discovering the areas of agreement between legal systems but also in examining the areas of disagreement. The areas of agreement and disagreement can be assessed both subjectively and objectively, ie, in terms of the legal systems affected and the functions and powers discharged by public authorities.

Subjectively, the findings of our comparative inquiry suggest three remarks. Firstly, the areas of agreement and disagreement between legal systems – to borrow Schlesinger’s words once more – ‘cannot be drawn in the simple terms of the traditional dichotomy between civil law and common law’.⁷⁴⁸ In fact, as we mentioned in Chapter 3, at the close of the nineteenth century there was widespread awareness that legal formants in the field of administrative law differed from private law in that principles and standards were defined, and refined, by the courts, often in conjunction with the work of rationalization and systematization being carried out by academics. Moreover, the findings of our research confirm the impression of some commentators that judicial standards were similar as early as the Belle époque. This is even more evident today with regard to the factors examined in the previous chapter: general principles, legal harmonization, and institutional isomorphism.

Secondly, and as a variation of the preceding argument, the dichotomy between civil and common law systems is untenable from the administrative procedure perspective. On the one hand, whereas in the nineteenth century the concept of the administrative act took centre stage in Continental Europe, the twentieth century has been marked by the emerging notion of administrative procedure, viewed as a central tool for limiting and structuring the exercise of power by public authorities. Interestingly, this notion has emerged in US public law, too. On the other hand, and consequently, after the codification of administrative procedure in Austria and its diffusion in some neighboring countries, the other great codification is the US apa of 1946. This suggests that the UK can no longer be regarded as exemplary of common law systems. The absence of general legislation on administrative procedure is, rather, a trait shared with other Westminster-like democracies, such as Australia and Canada.⁷⁴⁹ Incidentally, it can be observed that some of these democracies, such as Canada and Ireland, have adopted a written constitution and a Charter of rights, respectively, allowing the emergence of various judicial techniques for limiting the impact of primary legislation on rights. This seems to suggest that if there is an exceptional legal discipline in matters of public law, it is not so much that of France or Austria, but the UK.

Thirdly, the findings of our research, while confirming the initial choice to focus on the common core of European administrative laws, raise new issues. They confirm the existence of shared and connecting elements among European legal systems, although the effectiveness of the standards of administrative conduct previously outlined is weaker in some of those legal systems. The question that thus arises is whether the initial hypothesis should be subjected to further tests. Countries such as Russia and Turkey might be targeted for further testing,⁷⁵⁰ although there some problems may surround the choice of national experts. On the other hand, the research findings have shown that, if the focus of legal comparison is on administrative procedure, there is, at first sight, an important area of agreement with the legal systems of Latin America, thanks to the spread of Spanish ideas and norms. This conclusion will have to be corroborated in the course of the ongoing line of research. But another question that arises is whether a similar test should be conducted on legal systems that are geographically and culturally close to Europe, such as Egypt.

We may make similar observations when the common core is considered objectively; that is, with regard to the functions and powers discharged by public authorities. In this respect, the decision to combine history and legal comparison, in addition to including a factual analysis in the latter, has proven to be fruitful. The inquiry has shown that, although most, but not all, European legal systems have adopted some kind of administrative procedure legislation, there is a vast area of agreement between legal systems as far as the standards of administrative adjudication are concerned. It has shown, furthermore, that, although administrative procedure legislation governs rulemaking only in a few cases, there is increasing agreement on consultation, participation, and transparency. In a similar vein to what we have just said regarding the subjective dimension of the common core, the question that arises is whether the degree to which it extends into other areas should be further tested. If so, coercion by public authorities, which touches on the less recent understanding of administrative law in relation to powers, and the management of welfare benefits (eg, unemployment subsidies), which instead emphasizes the bureaucratic or managerial character of administration,⁷⁵¹ could be targeted for further testing.

7 The Variety of Uses of the Common Core

Our initial hypothesis was that a multinational ‘common core’ exists in administrative procedure, a relatively wide area of public law, noting, however, the many differences. The hypothesis was tested in several ways, including a comparison of national laws and a factual analysis. We will now add a few remarks with regard to the uses of the common core.

First and foremost, we must consider the production of knowledge about the law. This essay has argued that only a combination of history and legal comparison captures the causes and patterns of both commonality and diversity. It has shown that, for a proper understanding of the standards of administrative conduct, it is necessary to go beyond the commonly stipulated alternatives of ‘convergence’ or ‘persistence’, in order to explain their interplay. Interestingly, legal systems have adopted very similar – if not identical – invariable or variable standards, while differences in operational rules prevail, and there are even greater differences in the underlying institutional framework. With reference to the terminology employed earlier, isomorphism is more significant at the procedural level than in terms of the institutions themselves. In sum, what emerges is a pattern of ‘diversity within commonality’. Within the European legal area, if diversity is sometimes surprising, it is so because we look at it in the light of shared values, principles, and standards. As a result, it is an ‘enabled’ diversity, though it should not be forgotten that, as previously indicated, what is held in common is only the core, beyond which diversity does not merely remain, but flourishes.

There is a second possible use of the common core, as presented in this essay. It concerns legal education, namely the courses to be taught, the materials to be used, and the textbooks to be read by law students interested in the comparative study of administrative law,⁷⁵² transnational public law, and EU law, given that public law issues have an increasingly transnational dimension, and law students should be fully aware of them. Interestingly, even those who have vehemently argued against any attempt to enact a single body of rules applicable to the Member States of the EU have acknowledged that this does not exclude the possibility that a body of law common to those countries may arise through legal education.⁷⁵³ This is not to be regarded as a call for a focus on similarities rather than differences but for a better knowledge of both. Whether this can stimulate the awareness that the distinct legal systems of Europe provide legal scholars with a reservoir of solutions that are often based on the same general principles is not in contrast with the purpose of our research.

There are, third, some implications from the viewpoint of professional education in the field of public administrations, for which there is an increasing need of better knowledge about standards of conduct. The experiences of the various European countries are often considered by supranational institutions, so that the lessons of experience can be learned and, if possible, used by others. There is nothing wrong in this. However, some observers think that looking for ‘best practices’ is a questionable and often vain exercise. It is perhaps preferable, to borrow the expression used by economists, to focus on the conditions that, other things being equal, may make certain desired outcomes possible or easier. These are but possible and indirect uses of a ‘basic’ research, to use the word that is common in the natural sciences, but, as explained earlier, they have different purposes, such as legislative change, and thus require autonomous treatment.