Antoine Vauchez on the State of Emergency in France and the Dual Role of the Conseil d'Etat as Advisor to and Judge of Administrative Action

Network member Antoine Vauchez (CNRS) has alerted us to a post on his blog Do You Law? at the Paris daily Libération.  Entitled "Le Conseil d'Etat ou le verrou du Palais royal" ("verrou" meaning "deadbolt" or "safety lock" and the "Palais royal" being the location of the CE in Paris), in this piece Antoine poses the perennial question: "Can the French administrative judge pronounce on the law and also advise those who exercise power?  The question presents itself with acuity as the government prepares to seek a new extension of the state of emergency."  A translation of the opening lines is below and the remainder may be read (in French) here.

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The state of emergency has placed the Conseil d'Etat at the forefront of the antiterrorist response. With the unprecedented expansion of administrative powers and the marginalization of the ordinary courts, the administrative judge has the delicate mission of giving voice to the demand for rights and freedoms at the heart of a counter-terrorism policy whose excesses have already been noted in many respects. With its position at the heart of the administrative machinery, however, the Conseil d'Etat seems poorly misplaced to fully accomplish this essential task.

In the current phase of the antiterrorist struggle, the members of the Conseil d'Etat occupy a pivotal position.  Placed all along the chain of state action, from its policy conception to its legal control, these members form both the state's infrastructure and its safety lock (verrou) ... 

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OMT Forum: Herwig Hofmann on the CJEU's Response to the BVerfG in 'Gauweiler'

New network member Herwig Hofmann (Luxembourg) has posted a working paper on SSRN entitled 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'. Herwig has graciously agreed to post a condensed version of the paper's argument here, as part of a forum on the OMT dispute before both the German Constitutional Court, the Bundesverfassungsgericht (BVerfG), and the Court of Justice of the European Union (CJEU). We hope to have additional contributions to the forum in the coming days.

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Do exceptional situations make exceptionally good or exceptionally bad law? This is an old question often asked anew – especially in the context of the post-2008 economic crises travails of the European Economic and Monetary Union (EMU). The legal disputes which resulted from differing opinions about how to solve the crises and also how, incidentally, to improve the EMU’s governance have reached the Court of Justice of the European Union (CJEU). The most prominent case to date is the so-called Gauweiler case, a preliminary reference procedure initiated by the German Constitutional Court, the Bundesverfassungsgericht (BVerfG). I discuss this case in more fully argued working paper available on SSRN, 'Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union'.

Gauweiler concerns the legality of the decision of the Governing Board of the European Central Bank (ECB) of September 2012 on so called ‘Outright Monetary Transactions’ (OMT). This case is significant for legal integration in the EU since, although it is the first instance in which the German BVerfG has ever taken advantage of the preliminary reference procedure (Article 267 TFEU), the reference by the BVerfG was formulated in very terse words. Essentially, the reference asks for clarification about the legality of the ECB’s OMT decision. But that reference is not formulated in terms of a dialogue between Courts, each respecting the other’s distinctive powers. Instead, the BVerfG explains why it considers the ECB’s decision to be ultra vires of its mandate and asks the CJEU essentially to confirm this interpretation warning about potential consequences in its assessment of the ‘constitutional identity’ of the Federal Republic of Germany. Inherent in the reference is a thinly veiled threat not to accept the exclusive competence of the CJEU to review the legality of EU law and, instead, to unilaterally hold an act of an EU institution to be invalid within a Member State of the EU. The BVerfG reinforced its sceptical position of the primacy of EU law over the law of Member States by recalling in its decision for preliminary reference its case-law concerning the limits it perceives are set for the Federal Republic of Germany’s integration in the European Union. In its decision, it refers to and further interprets the scope of its own case-law making reference inter alia to its judgments concerning the Treaty of Maastricht, the Treaty of Lisbon and in Honeywell, as precedent for its questions to the CJEU.

This approach to formulating the preliminary ruling, a legal obligation for any court of a Member State of the EU ‘against whose decisions there is no judicial remedy under national law’ (Article 267 para 3 TFEU) can therefore not be seen as a long overdue normalisation of the relations between the CJEU and the BVerfG. The BVerfG as one of the last remaining constitutional courts of Member States instead of simply complying with its clearly defined obligations under the Treaties to submit in adequate cases questions for preliminary reference. Rather, it is formulated as ‘last warning’ by the BVerfG after which, if the CJEU does not fall in line with its approach, it would consider to radically challenge the constitutional order of the EU and, in effect, questioning the Union’s very existence as a constitutional order.

Elgar Publishing Seeks Monographs for New Series in Comparative Constitutional and Administrative Law

Edward Elgar Publishing has announced the start of a new series, entitled Elgar Monographs in Constitutional and Administrative Law.  Network member Susan Rose-Ackerman (Yale), along with Rosalind Dixon (UNSW) and Mark Tushnet (Harvard), will serve as the series editors.  Elgar's announcement is below, along with information about proposing a project.

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Constitutions are a country’s most important legal document, laying the foundation not just for politics, but for all other areas of law. They allocate power among different levels and branches of government, record and promote a society’s shared values, and protect the rights of citizens. Countries around the world are adopting written constitutions, though what defines a constitution is evolving to include a variety of sources beyond canonical texts, such as political conventions, statutes, judicial decisions and administrative law norms. 

This cosmopolitan monograph series provides a forum for the best and most original scholarship in constitutional and administrative law, with each book offering an international, comparative, or multi-jurisdictional approach to this complex and fascinating field of research.

To discuss a project, please email Tara Gorvine: tgorvine@e-elgar.com

CFP (deadline Oct 1, 2013): Nudging in Europe: What can EU Law learn from Behavioural Sciences?

Friend of the network Alberto Alemanno (HEC-Paris), via the Comparative Administrative Law listserv at Yale Law School, has passed on the call for papers below, which we thought might be of interest to other network members.

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OVERVIEW: A growing body of evidence suggests that insights from the behavioural sciences - from psychology and behavioural economics to neurosciences - can help design public policies that work better, cost less, and help people to achieve their goals. By showing that individuals deviate in predictable ways from neoclassical assumptions of rationality, behavioural sciences may help policy makers and administrative agencies to design policies that accommodate how people really behave, not how they are assumed to behave.

Under both UK Prime Minister Cameron and US President Obama, policy makers have recently been encouraged to draw on behavioural and social sciences insights in the design or implementation of new regulations. In the UK, through a process of rapid, iterative experimentation ("Test, Learn, Adapt"), the Behavioural Insights Team has successfully identified and tested interventions that will further advance priorities of the British government, while saving the government at least £1 billion within the next five years. The US federal government has also been experimenting with the idea and is currently creating a new team that will help build federal capacity to experiment with these approaches and scale behavioural interventions that have been rigorously evaluated, using, where possible, randomized controlled trials.

Although the results of the first nudging experiments are mixed, there seems to be an emerging consensus around the idea that regulation cannot work effectively or efficiently if regulators do not consider how targeted people respond.

However, besides a few isolated initiatives displaying some behavioural consideration (e.g. revision of the tobacco products directive, consumer information regulation, behavioural advertising, behavioural remedies in competition law), the European Union has not yet shown a commitment to integrate behavioural research into its policy-making. Given the potential of this regulatory approach in attaining effective, low-cost and choice-preserving policies, such a stance seems inadequate when measured against the EU's commitment to smart regulation in the Europe 2020 Strategy.

Against this backdrop, our workshop aims to: (i) map the actual and possible uses of behavioural insights in EU policy making; (ii) explore what roles - if any - behavioural sciences may play in EU law; and (iii) discuss how they could be better integrated into EU law-making.

A New Step Towards a European Code of Administrative Procedure (Thomas Perroud)

This post, by network member Thomas Perroud (Paris-Est, visiting scholar this term at Yale), originally appeared on the Comparative Administrative Law Blog and is reprinted here by permission.

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The European Ombudsman and the European Parliament have been pushing for some time now for the drafting of a European code of administrative procedure. The project is under way and the European Parliament has adopted a Resolution with recommendations to the Commission on a Law of Administrative Procedure of the European Union (available here).

The resolution is very general. The project would take the form of a regulation and should aim at guaranteeing the right to good administration by means of an open, efficient and independent administration based on a European Law of Administrative Procedure. The scope of the Code is clearer. It is limited to direct administration and to the relations with the public: it should apply to the Union's institutions, bodies, offices and agencies (‘the Union's administration') in their relations with the public.

An impact assessment was also made. It is to be found here.

The Network on SSRN: Rose-Ackerman and Perroud, "Policymaking and Public Law in France: Public Participation, Agency Independence, and Impact Assessment"

Network members Susan Rose-Ackerman (Yale) and Thomas Perroud (Paris-Est) have a new article posted on SSRN, entitled "Policymaking and Public Law in France: Public Participation, Agency Independence, and Impact Assessment."  It is an extraordinarily comprehensive and incisive treatment of the topic, informed by history as well as current theoretical and policy-analytic debates.  The abstract is below but we urge everyone interested to visit SSRN and download the full piece.  The article is forthcoming in The Columbia Journal of European Law.  

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Policymaking in government ministries and agencies is the inevitable result of the complex and technical nature of modern policy issues. This reality creates a puzzle: How can policymaking inside the executive remain true to democratic values? We confront this question through an analysis of modern pressures on French public law. We ask if the US approach, which we call “rulemaking accountability,” has any lessons for French reformers. The primary aim of this type of accountability is facilitating public input to assure that democratic values extend into administrative policymaking.

In France, the public administration traditionally has been understood, not as a threat to democracy, but as an instrument for achieving republican ideals. Statutes set out broad frameworks, but their concrete implementation should be left to impartial, expert bureaucrats. A specialized judiciary, also composed of civil servants, oversees the administration. Three developments are now putting pressure on French public law, involving process, institutions, and substance. These call for enhanced public participation, the creation of independent agencies, and the use of new forms of technocratic policy analysis. Can these new trends produce a stronger, more democratically legitimate state, or are they in such deep tension that France will either return to old practices or experience a drastic realignment of public power and public law? The French system has begun to respond to these new pressures, but they are still frequently resisted, and reforms have not coalesced around a consensus view. However, recent decisions of the French high courts suggest a move toward more oversight of the democratic legitimacy of administrative processes. Furthermore, efforts occurring inside and outside the government are encouraging more open policymaking and the more systematic study of government programs. Future developments are by no means clear, but the elements are in place for reforms that enhance public accountability and support systematic analysis of policy impacts.

Designing Administrative Law: Free Trade vs. Accountability Networks (Francesca Bignami)

This post by contributor Francesca Bignami originally appeared on I-CONnect and is cross-posted here with permission.

In seeking to guarantee market access, international trade regimes generally include not only a substantive component, for instance a commitment to non-discriminatory product safety regulation, but also a procedural component designed to ensure that foreign firms can make themselves heard in the domestic administrative process.  In a series of high-level policy recommendations and directives issued by the United States government, this procedural agenda has taken a surprising turn:  what was once a set of legal devices tailored at stopping discrimination against American firms abroad appears to have morphed into a broad-based template for reforming administrative law worldwide.   If this indeed is the ambition, the new task of designing a fair and good model of administrative law amenable to export is likely to prove significantly more complicated than the earlier procedural agenda, and it will be important to take into account the considerable comparative law variation that exists throughout the world. 

As I have argued elsewhere, through the rules and procedures of administrative law, liberal societies seek to hold public administration accountable to a whole network of democratic actors, not only organized social and economic groups (including foreign firms), and these rules and procedures vary systematically, and legitimately, among different systems of pubic law. 

For students of multilateral and bilateral trade regimes, the procedural dimension of trade liberalization is extremely familiar.  The jurisprudence of the European Court of Justice and the WTO Dispute Settlement Body, as well as the positive law of the two organizations, is full of examples in which domestic regulatory agencies are required to revamp their administrative procedure to allow foreign firms an opportunity to be heard before taking action that would unfairly burden foreign products or services.  Bilaterally, the United States has entered into a number of agreements, most notably with the European Union, that seek to promote international trade through the harmonization of regulatory standards, the mutual recognition of domestic standards, and, most importantly for present purposes, a set of good governance principles aimed at guaranteeing foreign (American and European) participation in administrative procedure and preventing discriminatory regulation.