The relation between administrative law and the Constitution is a traditional topic in Spanish public law. The paper explores three perspectives. First, the interaction among administrative law and the Constitution shall be studied. The latter has many effects on the former, but the process also operates the other way around. This is partially fostered by the long-standing tradition of codification of administrative law, which strengthens the autonomy of the latter vis-à-vis the Constitution. Secondly, the latter shapes the basic structures of administrative law. But, from a comparative standpoint, a peculiar feature lies in the fact that it also governs the substance of many administrative policies. Finally, the constitutional function of EU law shall be touched upon. EU primary law and national Constitutions reciprocally influence the manner in which they steer the development and implementation of national administrative law. This paper will focus on the top-down interaction.
After briefly introducing the concepts of constitutionalisation and europeanisation of the Italian administrative law, the paper deals with the relationship between these two processes, stressing on the one hand their substantial convergences (i.e. the europeanisation partially steers the constitutionalisation of administrative law) and on the other hand underling some problematic aspects. Moreover, the effective role of the Constitution in the current situation of Italian administrative law is discussed, in order to verify whether a trend toward deconstitutionalisation is really afoot, what is its possible scope is and what are its possible causes and consequences. Due attention is obviously paid also to the advancing weight of the European Convention on Human Rights and the jurisprudence of its Court.
This contribution aims at analysing the paths and the limits of the constitutionalizing process of French administrative law and to which extent the development of EU administrative law questions it. The peculiarity of France is that historically, administrative law used to develop outside the scope of constitutional law. Things started changing from the end of 90’s following several amendment processes of the Constitution, which led to introduce substantial provisions on local entities. Furthermore, the introduction of a new constitutional review procedure has for consequence to strengthen the promotion of fundamental rights binding on administrative authorities. In this context, the development of EU administrative law seems to have various consequences on the constitutionalizing process. Although it does not question in itself the process, it strengthens the key role of legislation, to implement important administrative policy or to regulate interactions among administrative orders.
While constitutionalisation constitutes a common phenomenon of European administrative legal orders, German administrative law may be regarded as probably the most constitutionalised administrative law system, culminating in Fritz Werner’s understanding of ‘Verwaltungsrecht als konkretisiertes Verfassungsrecht’ (‘administrative law as concretised constitutional law’). Against this background, the article in a first step not only elaborates on the phenomenon of constitutionalisation, but also qualifies the widespread constitutionalisation thesis. The latter has moreover been questioned by two megatrends impacting all European administrative legal orders, namely their Europeanisation and their alleged emancipation from the Constitution. Whether this means a deconstitutionalisation of administrative law and how these tendencies might be reconciled, will be discussed in further parts of the article.