[Editor’s Note: In this special installment of I•CONnect’s Article Review Series, Dolores Utrilla and Guy Seidman offer separate reviews of Giulio Napolitano‘s article on Conflicts and Strategies in Administrative Law, which appears in the current issue of I•CON. The full article is available for free here.]
Review by Dolores Utrilla: Conflictual Administrative Law and the European Perspective
–Dolores Utrilla Fernández-Bermejo, Assistant of Administrative Law and Research Fellow of the Center for European Studies, University of Castilla-La Mancha (Spain)
Giulio Napolitano’s paper Conflicts and strategies in administrative law offers a highly suggestive conflictual view of administrative law. Without absolutely rejecting the traditional conception thereof as a repository of rules and principles with vocation of permanence and gained through the tension between public power and individual rights, the author proposes to complement it with a vision which best fits the current dynamics of conformation of law in general, and administrative law in particular.
In Napolitano’s view, the principles and rules of this area of law largely express the outcome of the underlying conflicts among political, institutional and economic actors. Apart from defining these conflicts, the main contribution of the author consists of identifying some patterns of action used by the agents competing against each other for obtaining legal scenarios which are favourable to their respective interests. Three of such strategies are specifically addressed: power to rule, coalition capacity and costs allocation. The result is a dynamic and flexible view of the formation of administrative law that offers a new perspective to the scientific analysis which is yet to be developed, especially within legal scholarship of continental Europe.
Indeed, the conflictual vision of administrative law is already well known in the Anglo-Saxon academic doctrine. There, a broad doctrinal discussion has taken place during the last decades on the influence of the struggle among economic agents, as well as among political actors, in the shaping of administrative law. The academic literature on regulatory capture and on conflicts between the legislative and the executive branch for the control of administrative action are far enough illustrative in this regard.
The adoption of this dynamic vision of administrative law can be particularly useful to address recent developments in the European multilevel legal system. In this sense, I will next focus on three considerations from the many raised by Napolitano’s study. The first one concerns the relevance in Europe of what the author designates as political conflicts. The second relates to the use of the strategy of the power to rule on the construction of administrative law at the different levels of the European plural legal system. The third and final consideration refers to the role of the judiciary in the conflictual conformation of administrative law.
As for the political conflicts underlying the construction of administrative law, it has been stated that they are not very significant in parliamentary democracy systems, due to the political alignment which usually exists between legislative and executive in such cases. However, this statement may be shared only in so far as political conflict is described as that which arises between different political views held by democratically legitimized public powers that are located in the same constitutional level. However, it should be taken into account that, in multilevel legal systems, political conflicts can also arise among representative public powers which are located at different constitutional levels, whenever they support opposing political views.
This is tantamount to saying that, to a certain extent, the proposed distinction between political and institutional conflicts may be somewhat artificial: a conflict between institutions belonging to different levels of the system might have a political backdrop. If accepted, this broader notion of political conflict, which perhaps describes the current functioning of multilevel legal systems in a more reliably way, would make possible to assert that, also in Europe, the rules of administrative law are sometimes produced as a result of the tensions between institutions of different constitutional levels that hold diverging political views. The clearest example is probably the tension between national parliaments of the Member States and institutions of the EU, which is usually expressed through the struggle for the power to rule. This leads us to the two other questions which have been pointed out above.
As regards, secondly, the strategy of the power to rule, its use is apparent in the construction of administrative law in the European multilevel legal system, and it serves as a tool in conflicts among the institutions of the different levels, also when such struggles are politically motivated. From the point of view of EU law, rules on administrative organization and procedure are crucial in order to ensure efficiency, uniformity and primacy of the substantive rules of the Union. Apart from the positive secondary legislation on procedural and organizational aspects (e.g., public procurement or transparency directives), the European Court of Justice (ECJ) itself, when interpreting EU primary law principles, has echoed the growing importance of administrative law for ensuring that the power to rule attributed to the European institutions remains in their hands instead of being returned to the authorities of the Member States.
From the opposite angle, national authorities may obtain the power to rule via the establishment of principles and rules on the administrative organization and procedure for the implementation of EU policies which grant them a certain margin of discretion and, therefore, of autonomy before the European institutions. Developments of EU law in recent years clearly show how the power to rule has shifted in certain spheres from the Member States to the European institutions as an effect of administrative law rules, and the impact this may have for the different political, institutional and economic actors involved, as well as for certain structural legal principles of the EU and/or of its Member States.
This leads us to the third and last of the above-mentioned considerations: the role of the judiciary in the institutional struggle that leads to the creation of administrative law. Just as Napolitano points out at the end of his paper, judges intervene also decisively in the process of creating administrative law, supporting with their interpretations the objectives pursued by political, institutional and economic actors who are victorious in the conflict, in some instances, or making them fail, in other cases. To date, in the European multilevel system the role of constitutional courts has proven to be particularly meaningful in this field, and this with respect both to the ECJ and to the constitutional courts of the Member States.
As to the former, various pronouncements of the ECJ have come to extend the scope of the power to rule of EU institutions in certain fields to the detriment of national authorities. A clear example is the extensive interpretation of the scope of application of the Charter of Fundamental Rights of the European Union as well as of the standard of protection of the rights enshrined thereon, which was initiated by the Court through its Melloni and Åkerberg judgments.
This interpretation involves that national institutions must adjust their actions to the requirements stemming from the Charter in areas of purely national law, where their implementation may be connected to a rule of EU law. Notably, the application of the relevant national administrative law may be modified by such requirements, leading to the emergence of asymmetries in the national legal treatment of EU and non-EU cases, and hence, in the long term, to a foreseeable convergence of national administrative law towards the standards imposed by EU law.
For its part, and as a precaution or reaction against scenarios as the just described, the constitutional courts of several Member States have played a prominent role as regards the monitoring of distortions in the allocation of the power to rule among the institutions of the involved constitutional levels. To cite only a few examples, the constitutional courts of Italy, Germany, Spain and France have expressly set reservations of jurisdiction against the primacy of EU law as last guarantee of national sovereignty. The activation of domestic constitutional limits to the integration may, moreover, be facilitated by the national identity clause embedded in Article (2) TEU. National constitutional courts may activate the so-called ‘counter-limits’ at the request of individuals or other legitimized stakeholders whose interests might be adversely affected by the reallocation of the power to rule in favour of the EU, even if national institutions and political majorities have endorsed such a transfer.
Perhaps the most blatant example in recent times is that of the German Federal Constitutional Court (Bundesverfassungsgerich, BVerfG), which has raised a referral for a preliminary ruling to the ECJ in the framework of a constitutional complaint procedure challenging the inaction of the German Government and Parliament before the decision of the Governing Council of the European Central Bank concerning the Outright Monetary Transactions (OMT).
According to the previous case law of the BVerfG, certain decisions involving a transfer of the decision-making power in budgetary matters to the EU may amount to an encroachment of the overall budgetary responsibility of the German parliament, and therefore can get to be understood as contrary to the principle of democracy reflected in Article 20(1) of the German Basic Law. Whenever transfers of decisional capacity in favour of the Union are not covered by the attributions contained in EU primary law, they may be regarded as ultra vires and, irrespective of this, if EU decisions infringe the intangible core of the internal constitution they cannot benefit from primacy in the domestic legal order.
The democratic concerns raised in the OMT case are similar to the ones posed in other cases triggered as a result of shifts in the power to rule on financial and budgetary matters due to the economic and financial crisis. The ECJ has now the opportunity to try to reduce the conflict in the OMT case through the judicial dialogue, but the language of the BVerfG reveals how the rationale of the judges may alter in a decisive way the building process of public law, especially in a multilevel legal system. In any event, and finally, two observations made by Poiares Maduro deserve to be brought forward here. On the one hand, that also Courts behave strategically: “motives behind [Court’s] transactions may vary greatly. Judicial criteria are not simply a result of judicial drafting but of a complex process of supply and demand of law in which the broader legal community participates”. On the other hand, that once a judicial decision is taken, its consequences escape the control of the judiciary: “the language of courts in defining what the law is does not become their exclusive property. It is taken over and used by a broader legal community with meanings that may be different from those originally intended”.
Suggested Citation: Dolores Utrilla, Conflictual Administrative Law and the European Perspective, Int’l J. Const. L. Blog, Aug. 23, 2014, available at: http://www.iconnectblog.com/2014/08/article-review-dolores-utrilla-on-giulio-napolitanos-conflicts-and-strategies-in-administrative-law
To cite just some of the most relevant studies in this area: Stigler, The Economic Theory of Regulation, The Bell Journal of Economics 2 (1971), 3 ff; Peltzman, Toward a More General Theory of Regulation, Journal of Law and Economics 19 (1976), 211 ff; Becker, A theory of competition among pressure groups for political influence, The Quarterly Journal of Economics 98 (1983), 371 ff; Spiller, Politicians, Interest Groups and Regulators: A Multiple principals Agency Theory of Regulation, or ‘Let Them Be Bribed’, Journal of Law and Economics 33 (1990), 65 ff.
Among many others, Lessig and Sunstein, The President and the Administration, Columbia Law Review 94 (1994), 1 ff; Posner, Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective, University of Chicago Law Review 68 (2001), 1137 ff.
 ECJ, judgements of 26 February 2013, Case C-399/11, Stefano Melloni v. Ministerio Fiscal, and Case C-617/10, Åklagare v. Hans Åkerberg Fransson.On both, see Sarmiento Ramírez-Escudero, Who’s afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe, CMLR 50 (2013), 1267 ff.
 Italian Constitutional Court, Case 183/1973, Judgment of 18 December 1973 (Frontini), and Case 170/84, Judgment of 8 June 1984 (Granital).
 German Federal Constitutional Court, Judgements Solange I (1974: BverfGE 37, 271, at 277 ff), Solange II (1986: BVerfGE 73, 339, at 378 ff), Maastricht (1993: BVerfGE 89, 155, at 188), Lisbon (2009: BVerfGE 123, 267, at 353 ff), Honeywell (2010: BVerfGE 126, 286, at 303 ff).
 Spanish Constitutional Court, Opinion 1/2004 of 13 December 2004. Thereon, see Castillo de la Torre, Tribunal Constitucional (Spanish Constitutional Court), Opinion 1/2004 of 13 December 2004, on the Treaty establishing a Constitution for Europe, CMLR 42 (2005), 1169 ff.
 French Constitutional Council, Case 2006-540 DC, Decision of 27 July 2006.
 See in this regard Von Bogdandy and Schill, Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty, CMLR 48 (2011), 1417 ff.
 BVerfG, 2 BvR 2728/13 of 14 January 2014.
 BVerfGE 89, 155, at 171-172 (Maastricht), subsequently confirmed by BVerfGE 123, 267, at 330 ff (Lisbon) and developed by BVerfGE 132, 195, at 239 ff.
 BVerfGE 126, 286, at 303-304 (Honeywell). On this, see Craig, The ECJ and ultra vires action: A conceptual analysis, CMLR 48 (2011), 395 ff; Payandeh, Constitutional review of EU law after Honeywell: Contextualizing the relationship between the German Constitutional Court and the EU Court of Justice, CMLR 48 (2011), 9 ff.
 On this subject, see for many Weber, Europa- und völkerrechtliche Elemente der Gewährleistung von Haushaltsdisziplin in der Währungsunion, EuR 4 (2013), 375 ff.
Poiares Maduro, Contrapuntual Law: Europe’s Constitutional Pluralism in Action, in Walker, Sovereignty in Transition, Hart Publishing, 2003, 501 ff, at 514.