In the various European countries, debates on the ransformation of administrative law are held from a national perspective and with different intensity. Given the considerable effects such discussion may have on the methods of administrative legal scholarship, an analysis of these developments in a European context promises valuable results.
For this purpose, a long term transnational exchange of ideas between administrative law scholars from England, France, Germany, Italy, Spain and Sweden has been initiated in 2005 in Dornburg castle and continued with meetings in London (2007) and Paris (2009).
This volume comprises the results of the fourth workshop of the Dornburg Research Group of New Administrative Law that took place in Dornburg in May 2012. The group scrutinized the relationship between national traditions and the evolution of common principles of European administrative law. It discussed, to what extend theoretical, dogmatic, political or historical national traditions prevent or enable the development of a European administrative law.
Matthias Ruffert is Professor of Public Law, European Law and Public International Law at the Friedrich-Schiller Universität Jena, Germany. He initiated the Domburg Research Group and is co-leading it with Pascale Gonod, Université de Paris I, Panthéon-Sorbonne, and Andrew Le Sueur, School of Law, University of Essex..
About the Authors
Chapter 1 Administrative Law in Europe: Between Common Principles and National Traditions
Eberhard Schmidt-Aßmann
1 Some Explanations to the Key Terms
1.1 Administrative Law in Europe
1.2 National Traditions
1.3 Common Principles
1.4 Ambiguities of the Question (‘Between’): Exchange and Interaction
2 Some Reflections on Possible Questions within the Subject
2.1 A Pattern of Analysis: Twelve Fields
2.2 Horizontal Processes of Exchange: The Central Role of Historically-Informed Administrative Legal Comparison
2.2.1 The Autonomy of Administrative Legal Comparison
2.2.2 Patterns of Exchange Processes: From ‘Families of Law’ to ‘Common Learning’
2.3 Vertical Processes of Exchange: National Traditions and Common Principles in EU Administrative Law
2.3.1 Creation of Law in an Association
2.3.2 Implementation of the Law Between Innovation and Conflict
‘National Traditions’: Obstacles to a Common Legal Framework? – National Perspectives
Chapter 2 ‘Tradition’ in English Administrative Law
Andrew Le Sueur
1 Defining Tradition
2 The Politics of Tradition
3 Tradition in a Fast-Changing Society
4 Communities of Tradition
4.1 National tradition
4.2 The General Public
4.3 The Executive
4.4 The Judiciary
4.5 The Legislature
4.6 The Commonwealth
5 Two Overarching National Traditions
5.1 Norms Made Through Cases
5.2 No Strong Concept of the ‘the State’
6 Preservation and Disposal of Tradition
Chapter 3 National Traditions in French Administrative Law
Pascale Gonod
1 Reference Points Traditions
2 The Subject of the Study: National Traditions in French Administrative Law
3 Telltale Cases of National Traditions in French Administrative Law
3.1 Case 1: Heritage as a Barrier to Change
3.2 Case 2: Frontal Opposition Between Two Legal Rules: ‘European Domain vs. National Traditions’
Chapter 4 German Traditions in Administrative Law. Obstacles to a Common Legal Framework?
Jens-Peter Schneider
1 Introduction and Overview
2 German Traditions in a Historical Perspective
2.1 The Founding Period During the Belle Époque of National Administrative Law in Europe
2.2 The Fundamental Crisis During the III. Reich
2.3 Re-Founding of German Administrative Law under the Basic Law
2.4 Modernisation of German Administrative Law in Reaction to New Political and Administrative Challenges
2.5 New Forms of Administrative Action: Planning Law
2.6 Codification of Administrative Procedural Law
2.7 New Standards for Administrative Intervention and Participation: Environmental Law
2.8 New Forms of Administrative Discretion: Risk Regulation and Economic Regulation
2.9 New Forms of Cooperation Between Administrative Authorities and Private Parties
2.10 Acceleration of Administrative Procedures
2.11 New Forms of Administrative Information Management and Communication
2.12 New Forms of Transnational Cooperation Between Administrative Authorities
2.13 Interim Result
3 Potential Conflicts in the Process of Europeanisation of German Administrative Law
3.1 Specific Conflicts
3.2 A General Conflict Caused by the Fragmented Nature of EU Law
Chapter 5 Cultural Traditions and Policy Preferences in Italian Administrative Law
Roberto Caranta
1 Introduction
2 Diritti Soggettivi and Interessi Legittimi
3 Discretion
4 Eccesso di Potere and Legality Review
5 Conclusions
Chapter 6 Spanish Administrative Traditions in the Context of European Common Principles
Andrés Boix-Palop
1 Methodology: How do we Define a ‘National Tradition’ in Public Law?
2 Spanish Law and Spanish Culture in the European Context
2.1 Spanish Law and Spanish Law in Europe
2.2 Spain and the European Promise
2.3 Receptivity and Resiliency of Spanish Law
3 Main Characteristics of the Spanish Legal System in Twelve Selected Fields
4 Hypothesis of Identification of Some Spanish Administrative Traditions
Chapter 7 What about Integrity? National Traditions of Registration and Transparency
Gunilla Edelstam
1 Introduction
2 Traditions and Principles
2.1 Tradition
2.2 Principle
3 National Legal Traditions of Registration and Public Access
3.1 National registration
3.2 Public Access
4 Integrity
4.1 Constitution
4.2 Ordinary Law
5 Concluding Remarks
Traditions and European Administrative Law
Chapter 8 Ius Publicum Europaeum: Divergent National Traditions or Common Legal Patrimony?
Giacinto della Cananea
1 Commonality of Private Law v. Nationality of Public Law?
2 The Frailty of the Conception of Public Law as a National Enclave
2.1 Savigny’s Thesis of Roman Private Law as the Only Common Legal Framework in Europe
2.2 Hegel and Public Law as the Product of the State
2.3 Dicey and the Antithesis between National Constitutional Traditions: Strength and Weaknesses
3 From Doctrines to Legal Realities
3.1 National Norms and Mentalités: Separation of Powers
3.2 A Parallel Development: From the Immunity to the Liability of Public Administrations
3.3 Common Constitutional Traditions (I): Audi Alteram Partem
3.3 Common Constitutional Traditions (II): Parliamentary Consent to Taxation
4 The Rediscovery of the Common Legal Patrimony Within the EC/EU
4.1 The Early Years of the Jurisprudence of the European Court of Justice (ECJ) and the Revitalization of the ‘Ius Publicum Commune’
4.2 The EU Treaty, Common Constitutional Traditions, and National Identities
5 Ius Publicum Commune: A Vital Concept
Chapter 9 EU Administrative Law and Tradition
Paul Craig
1 Introduction
2 Source and Inspiration
3 Status and Hierarchy
4 Principle and Purpose
5 Individual Protection and Administrative Efficacy
6 Geographical Reach and Administrative Diversity
7 Conclusion
Chapter 10 New Public Management: A New Common European Tradition
Athanasios Gromitsaris
1 Tradition, Reproduction and Deviation
2 New Public Management: A Stranger in the House of Public Law
3 NPM-Impact on the ‘Genetic Code’ of European Administrative Legal Systems
3.1 Administrative Law’s Autonomy
3.2 Administrative Tasks
3.3 Administrative Organisation
3.4 Administrative Legitimacy
3.5 Administrative Statutes
3.6 Criteria of Administrative Action
3.7 Legality of Administrative Action
3.8 Administrative Discretion
3.9 Forms of Administrative Action
3.10 Administrative Communication
3.11 Administrative Controls
3.12 Administrative Courts
4 Public Law as an Impediment to and a Tool for NPM-Led Change
4.1 Constitutional Law and Established State Structures
4.3 The Pendulum Experience: Privatisation and Re-Municipalisation
4.4 Re-Municipalisation and Competition
5 Efficiency as a Legal Concept
6 Culture of Assessment of Government Policy by Independent Agencies
7 NPM and Public Sector Reform in the Crisis-States of the Euro-Area
7.1 Tax Law
7.2 The Promise of Growth without Deficit Spending
8 Concluding Remarks
Results and Perspectives
Chapter 11 Common Principles and National Traditions: Which Perspective for European Administrative Legal Scholarship?
Matthias Ruffert
1 Introduction
2 National Traditions: The Heart of Administrative Law?
2.1 Civil and Public Law
2.2 Politics and Historical Contingencies
2.3 Tradition Shaping in the Long 19th Century
3 Elements of Tradition
3.1 National Traditions
3.2 Common Traditions
4 Trends against Tradition
4.1 Europeanisation
4.2 New Public Management – and the Counter Movement
4.3 Receptiveness to Foreign Influences
5 Outlook
