The European legal area: beyond ‘comparative law’?

Too often the literature about ‘comparative administrative law’ considers European legal systems similarly to what may be done with regard to the legal systems of different regions of the globe. This way of looking at administrative law is questionable, first, because it neglects that the European legal area is characterized by the existence of both national and common constitutional traditions; second, because it underestimates the interaction between horizontal and vertical links between legal systems; third, because all this requires a methodological shift concerning legal comparison.

EU administrative law scholarship through the lens of comparative law

EU administrative law as a disciplinary field emerged and developed very much anchored in comparative administrative law. In this respect, legal scholarship has both mirrored and further enhanced the work of Court of Justice. The normative project to establish administrative law beyond the state was grounded on a state-matrix of general principles developed on the basis of functional comparison. While this approach led the first academic constructions of EU administrative law to ignore the specificities of the EU administrative institutions, those initial efforts have shaped the foundations of EU administrative law. They fed the scholarly efforts to give effect to an “utopia” (Chiti, 2007) of an integrated administration constitutionally framed by general principles and fundamental rights. The paper is essentially a diagnosis, examining the functions that comparative administrative law performed in different stages of EU administrative law and its current limits as a legal discipline.

European administrative law as a system

EU administrative law is an instrument aimed at steering social processes that, in its current state, presents some important flaws. This paper departs from the assumption that a way to improve it is a more system-oriented doctrinal approach. Specifically, it explores how this task should be undertaken. After describing its theoretical and methodological foundations, it identifies next some of the most relevant building blocks on which systematization of EU administrative law has to unfold. In this respect, a distinction is made between elements of a substantive nature –constitutional principles, legislative goals, and discretional criteria– and elements of a structural nature –forms of organization, types of procedure, and legal forms of action.

Cutting the national cord in European administrative law

From its inception, the academic study of EU administrative law (EAL) has relied heavily on doctrinal categories borrowed from national administrative laws. It has focused on issues such as the Europeanisation of national administrative laws, and the development of common principles of administrative law derived from them. EAL is sometimes also judged for its ability to function like national administrative laws.
These – certainly important – research agendas reflect a familiar paradox: that of the touch of stateness. While the existence of a European administration beyond the state is beyond dispute, legal doctrine tends to consider its legal problems, implicitly or explicitly, from the perspective of the administrative law of the nation-state.
The article considers, and proposes a methodological approach to address, the ways in which preconceptions and normative expectations originating in national law have conditioned, and indeed prevented, the deeper doctrinal development of EAL.