The background to this collection of papers is formed by the changes in contemporary society. In modern-day western societies it is thought that individualism trumps collectivism. There is change from the paradigm of hierarchy to a paradigm of cooperation. This affects administrative law, which is traditionally top-down, but is slowly accepting and incorporating mechanisms of negotiation and bottom-up involvement of stakeholders and concerned individuals. The contributors to this volume investigate these changes in administrative law and provide an assessment as to whether and to what extent they are reflected in the way judicial review of governmental action is shaped. The analysis covers the EU and a number of EU jurisdictions (France, Germany, United Kingdom, the Netherlands, Italy and Romania) representing different administrative law traditions and being differently responsive to change. To provide an outside comparison, the US administrative system is also covered.
Chapter 1 Introduction
Roberto Caranta and Anna Gerbrandy
1 A Changing Society: Changing Traditions of Judicial Review?
2 Two Models: Top-Down v. Bottom-Up
3 A Comparison Between the Two Models
4 Why Move Courts Away From Substantive Review and Let the ‘Field’ Decide the Substance?
5 The Research
6 The Contributions in this Volume
7 The Resulting General Picture
Chapter 2 Evolving Patterns and Change in the EU Governance and their Consequences on Judicial Protection
Roberto Caranta
1 Introduction
2 The EU: An Experiment in the Rule of Law without Democracy
3 The Theory and Practice of Judicial Review of Measures Taken by EU Institutions
3.1 General
3.2 Breaches of Formal and Procedural Rules
3.3 Substantive Review
3.3.1 CAP Cases
3.3.2 Competition Cases
3.3.3 Fight against Terrorism Cases
3.4 What Developing Trends?
4 Attempts at Dialogue with Civil Society, Citizens, and Market Operators
5 Judicial Review over Measures taken Following Dialogue
6 Conclusions
Chapter 3 Administrative Law and the Dialogue Model in France. The Administrative Courts’ Contribution
Anna Simonati
1 Introduction
2 Enquêtes Publiques
2.1 Elements and Legal Rules
2.2 The Administrative Courts’ Contribution
2.2.1 Breach of Procedural Rules and Protection of Interests
2.2.2 The Completeness of the Information: the Contents of the Dossier Submitted to Enquête
2.2.3 The Enquête as an Example of Dialogue?
3 Zones d’Aménagement Concerté
3.1 Elements and Legal Rules
3.2 The Administrative Courts’ Contribution
3.2.1 The Creation of a Z.A.C.: Self binding Obligation for Public Authorities?
3.2.2 The Legal Link between Public Law Decision and Convention d’Aménagement
3.2.3 The Z.A.C. as an Example of Dialogue?
4 The Préfet as a ‘Dialogue Model Promoter’
4.1 Legal Rules and Institutional Role
4.2 The Administrative Courts’ Contribution
4.3 The Préfet’s Preference for Dialogue
5 Final Observations
Chapter 4 Judicial Review of Administrative Action: Procedure vs. Substance. Germany
Margherita Poto
1 Brief Introductory Remarks
1.2 The Discretionary Powers in the Rechtsstaat
2 Social Welfare in the Constitution
3 Judicial Review and Different Techniques
4 The Influence of Private Law
4.1 Public Administration and Private Tools
4.2.1 An Example of Participative Democracy: Mediation in the Public Sector
4.2.2 Negotiations and Cooperative Administrative Activity
4.2.3 Criticism of Informal Settlements
4.2.4 The Way Forward
4.2.5 Practical Experiences with Assisted Negotiation
4.2.6 Admissibility of Negotiations
4.2.7 The Circle of Participants
4.2.8 Access to Information
4.2.9 The Use of Mediators
4.2.10 Implementation of the Consensus
5 The Judicial Review
6 Procedural Guarantees Provided Within the Traditional Model
7 The Proportionality Principle
8 Examples of Dialoguing Administration
8.1 The E-participation: A Successful Model in Germany
9 Conclusions
Chapter 5 Traditional Model vs. Dialogue Model in UK Legal System
Silvia Mirate
1 Introduction
2 What is a ‘Public Authority’ in English Law?
3 The Traditional Model: Judicial Review and the Control on the Form and the Substance of the Administrative Action
4 Procedural Impropriety
4.1 Procedural Fairness and Participation as Consultation: The Public Inquiries
4.2 Form and Substance in the Protection of the Legitimate Expectations
5 Substantive Review: the Control on the Discretion and the Ground of Illegality
5.1 Substantive Review: From the Ground of Irrationality to the Proportionality Test
6 The Growing ‘Dialogue-model’ in English Public Administration
7 Judicial Review Meets the New ‘Dialogue Model’ of Public Administration: What’s the Role of the English Courts?
8 The ‘Dialogue-model’ Outside the Judicial Review: other Ways of Controlling the Administrative Action
9 Final Remarks
Chapter 6 Traditional Variations in the Dutch Administrative Judicial System
O.F. Essens and M.J.M. Verhoeven
1 Administrative Judicial Protection in the Netherlands
2 The Preliminary Administrative Procedure
3 Proceedings Before the Administrative Court
4 Judicial Review of Discretionary Powers and Competences Liées
5 Finalising Disputes Before the Court
6 The Principle Duty of Enforcement
7 Conclusions
Chapter 7 Romanian Administrative Law between Tradition and Dialogue
Dacian C. Drago?, Bogdana Neam?u and Raluca Veli?cu
1 Introduction
2 The Romanian Administrative Law System: A Short Introduction
3 Bound Competence and Discretion – The Traditional Model in Romanian Doctrine
4 Traditional Techniques of Judicial Review
4.1 Subjective and Objective Review
4.2 Subjective Review
4.3 Objective Review
4.4 Grounds for Annulment
4.5 An Atypical Review Technique
4.6 Review by Exception. The Plea of Illegality
4.8 Motivation (Duty to Give Reasons)
4.9 Hearings
4.10 Rulemaking and Adjudication
4.11 Presumption of Validity
4.12 Parties in procedure
5 The ‘Traditional’ and the ‘Dialogue’ model
5.1 Internal Administrative Appeals
5.1.1 An Invitation to Dialogue: The Prefect as Controller/Mediator
5.1.2 An Opportunity for Dialogue: Administrative Appeals Lodged by Citizens and Legal Persons
5.1.3 Another Opportunity for Dialogue: Granting Compensation in Administrative Appeals?
5.2 Mediation and Judicial Agreements
5.3 Public –Private Partnerships as a Dialogue Tool
5.4 Participation in Decision-Making as an Instrument for Advancing the Dialogue Model
5.4.1 Procedural Transparency in Local Public Administration: An Instance of the Dialogue Model, or Merely Legal Compliance?
5.5 Zoning Agreements – Effective Dialogue or a Path to Corruption?
5.6 Associations of Community Development as a Public-Public Dialogue Model
5.7 Public Authorities that Combine to a Certain Degree the Traditional Model and the Dialogue Model in Their Activity
5.7.1 The Economic and Social Council (ESC)
5.7.2 National Council of the Audiovisual (NCA)
5.7.3 The Romanian Agency for the Assurance of Quality for Higher Education (RAAQHE)
5.7.4 Territorial Authority for Public Safety (TAPS)
5.7.5 The National Council against Discrimination (NCAD)
6 Conclusions
Chapter 8 The Dialogue Model in the Italian Legal System Silvia Mirate and Simona Rodriquez
1 The Form of Participation as Introduced by the Administrative Procedure Act No. 241/1990: An Example of the Traditional Model
2 The ‘Administration by Agreements’
3 Local Government and Dialogue Model: The ‘Negotiated Planning’ and the Tool of ‘Territorial Pacts’
4 The Voluntary Agreements (VAs) and the Environmental Policy in Italy: Introductory Remarks
4.1 The Voluntary Agreements: Brief Remarks on the Environmental Policy in the EU
4.2 Voluntary Agreements and Waste Management in Italy: from the ‘Ronchi Decree’ to the New Environmental Code
5 Final Remarks
Chapter 9 Traditional Model vs. Dialogue Model in US Legal System
Simona Rodriquez
1 Introductory Remarks on American Administrative Law: The Traditional Model
2 The Traditional Forms of Agency Decisionmaking: Rulemaking and Adjudication. Formal and/or Procedural Rules to Limit the Risk of Arbitrariness
2.1 Rule-Making
2.2 Adjudication
3 The Abuse of Discretion and the Duty to Give Reasons
4 Judicial Review on Discretion
5 The ‘Arbitrary and Capricious Test’
6 The Dialogue Model in US Legal System: Introductory Remarks
7 The Case of Negotiated Rulemaking: A Combination Between the Traditional Model and the Dialogue Model
7.1 Procedure of Neg-Reg
7.2 Judicial Review in Neg-Reg Cases
7.3 Neg-Reg and Scholars’ Opinion
8 The Case of Environmental Mediation
9 Negotiated Settlements: Forms of Regulation of Public Utilities
10 Final Remarks: Traditional Model vs. Dialogue Model
Chapter 10 Models of Judicial Review. The Search for Instances of the Dialogue-Model of Judicial Review in the USA or: USA, Part II
Anna Gerbrandy
1 Introduction
2 A Search for the Dialogue Model in the USA
3 Consent Decrees
3.1 Consent Decrees in Environmental Law
3.2 Consent Decrees in Antitrust
4 The Way of the Pontiac Radiator
5 The Administrative Law Judge
6 Conclusions
