The research aims at investigating what can be labelled as the
transnational dimension of administrative law, which appears to
challenge the territoriality of public law. Furthermore,
“transnational administrative law” is as a missing piece in the
theoricization of legal globalization.
The purpose of the general research is to determine what theoretical
and practical keys can be used in order to analyze the legal issues
raised by the development, in Europe and outside, of situations,
arrangements, mechanisms, belonging to the administrative law realm,
but immersed in two or several legal systems and determined by
horizontal connections between Domestic Public Laws: cross-border
cooperation schemes, transnational administrative procedures (ad ex.
Schengen), effects of the directive on services, possible impact of
transatlantic treaties, and so on.
A product of European integration less analyzed by scholars and less visible in the European Court of Justice (ECJ)’s case law, is that of transnational administrative acts. These are administrative acts which, by reason of the authority that adopted them, the scope of their effects, their addressee, and/or their decision-making process, are “in-between” at least two national legal orders. The scope of transnational administrative acts is limited to horizontal relationships. This contribution will draw up a typology of transnational administrative acts and, on the basis of this typology, will analyze the solutions developed to enforce judicial review . The question of judicial review of transnational administrative acts is complex, because the presence of one exogeneous element may disrupt the straightforward path toward the right of access to courts—as both the determination of the competent court and the scope of the review carried out by the court seized become uncertain.
Our focus is the emergence of transnational administrative procedures, which we can define as an administrative procedure that leads to the adoption of a transnational decision or to regulate a transnational situation. Contrary to transnational administrative decisions or situations, that can emerge de facto, in order to have a transnational administrative procedure it is necessary to have an ex ante regulation of an administrative procedure. In these cases, the emergence of a transnational administrative situation is taken into account by two or more States and it is considered worth to be regulated. The regulation may occur through a bilateral agreement, an EU legal act, or an international Treaty. Transnational procedural principles can emerge de facto, and be discovered via case law. We propose to develop a taxonomy of transnational administrative procedures, taking into consideration e.g. the types of subjects involved, the source of law, and the type of cooperation established.
Global trends are fostering the spread of transnational relationships related to citizenship. Legal positions of an administrative nature exercised in legal systems other than those where the subjects are political citizens are increasing. In these situations, political citizenship affects the exercise of administrative citizenship rights. The phenomenon concerns situations regulated by supranational and global sources (cross-border health care; taxes; investments) and national (personal rights; bio-rights). The transnational enhancement of administrative citizenship weakens the role of political citizenship, the first exclusive source of attribution of state rights. But the definition of a model of “reinforced” administrative citizenship leads to the attribution of new rights that the differences in regulation between states do not allow to guarantee in a fair way. The gap could be narrowed by applying some general principles, as national and European jurisprudence is showing.