Proportionality in English administrative law: a strategy of deceptive reception

The adoption of the principle of proportionality has been at the centre of heated debates in UK administrative law since the last part of the 20th century. While proportionality is now regarded to have been adopted there as a matter of principle, the modalities of its use may tell a different story, one of resistance to this ‘foreign’ import. Furthermore, a study of the long ‘proportionality debate’ will allow us to draw out and better understand some of the resistance strategies to transplants, particularly in the public law context. Finally, the extension of this debate to other common law jurisdictions has added an unusual angle and globalized dimension to this story of resistance that is important to grasp and analyse.

Legitimate expectations and legal certainty in French administrative law

European law played a key role for developing the legal certainty principle in France. French administrative law has strong objective dimensions, based on the promotion of the general interest, rather than that of individual rights. For a long time, the French Council of State considered legal certainty as potentially contrary to the legality principle. Things changed in 1990s: the Council of State referred legal certainty and legitimate expectations in cases relating to the enforcement of European law. In 2006, it accepted legal certainty in purely domestic situations. This seems to demonstrate a gradual acclimatization of legal certainty in France. However, a story of deeper resistance can be told. First, the principle of legal certainty has been adapted to promote mainly its collective dimension. Secondly, legitimate expectations are only used in marginal cases. Thus French administrative law maintains its objective dimension, without much adaptation to more subjective concerns.

Independent regulators in Belgian public law

Inspired by the American and British experiences, the EU requires Member States to entrust regulatory powers to authorities independent from the government. Drawing on examples from the energy and the electronic communications sectors, this paper highlights how these regulators has faced resistances from the legislature, the executive and the Council of State in Belgium. Resistances have taken a variety of forms, ranging from restrictive interpretations of EU law requirements to create these regulators to straightforward violations of the powers and independence that they should enjoy. They were driven by a ideological difficulty with the very concept of regulation at arm’s length from the government and a desire to protect vested interests from powerful (public) actors. Yet, independent regulators have now become part of the Belgian institutional landscape, although it remains doubtful that they are truly embedded in Belgian political and constitutional culture.

Public Procurement and Competitive Award Procedures in Germany

The history of German public procurement law is a history of attempts by the German legislator to implement EU procurement directives as minimally as possible. Paradoxically, it is also the history of the spread of ‘competitive award procedure’ underlying the public procurement directives to other administrative procedures, often against the explicit will of German government and other ‘stakeholders’. There is a cross-fertilization between minimal standards for competitive procurement procedures and minimal standards (derived from the constitution) for competitive procedures concerning the recruitment of public servants. German case law and administrative practice develop competitive award procedures for procurement beyond the EU thresholds, for privatizations, for financial support, for gambling concessions, etc. However, these trends encounter difficulties because the German General Administrative Procedure Act is not tailored to competitive award procedures.

The failure of the leniency program in Hungary

Leniency policy is designed to enhance the effectiveness of competition law enforcement. The common EU approach to leniency is laid down in the European Competition Network (ECN) model program, a soft law measure meant to bring about convergence across Member States. Hungary has implemented such a national leniency policy. This transplant, however, may be considered a failure : whistleblowing is almost non-existent. The reasons relate first to Hungarian business culture. It is a small market where business owners and managers know that they will have to continue to operate on the same market with those they blew the whistle on. Furthermore, snitching was shunned under the socialist history of the country. Finally, the absence of link between competition law and criminal sanctions means that wistleblowing can only yield a reduction of fines under criminal law. Managers are thus deterred from bringing leniency application, since this would mean they incriminate themselves.

Romanian Administrative Law: between national pragmatism and European values

Romanian administrative law has undergone transitory challenges after the EU accession (2007) : its relationship with EU law has been at times strained. This paper showcases this relationship by analysing two instances of so-called Europeanization: (1) the setting up of a court action (remedy) for the infringement of EU law ; (2) recent attempts to codify the administrative substantive law and procedural law. The codification of substantive administrative law was used as a venue for introducing controversial provisions, while the codification of administrative procedure, which is not politically charged, has been stalled. Overall, after a period of voluntarily embracing EU law principles and visionary court rulings, administrative law went back to being prone to national pragmatism when legislating. Consequently, administrative procedures were reined in by national specificities and legislative decision making diverted from European best practices.