1,721,192 research outputs found
Proceduralization of EU Agencies: theory and practice
No full textThe chapter presents the overall research and focuses on the agencification of the EU executive power, with specific regard to discretion, to delegation and to procedures. Then, the theoretical issues emerging from the analysis of procedures are discussed. Thirdly, proceduralisation of EU Agencies is examined in Practice, with specific regard to its extension and goals
International Reflections on Administrative Procedure: OECD and Council of Europe
No full textSince the 90s, two intergovernmental organizations, the Organization for Economic Cooperation and Development (Oecd) and the Council of Europe, started publishing recommendations concerning national administrative procedures. In the activity of the two organizations, some common principles for national administrative procedure emerge, such as transparency, participation, and the recommendation to adopt decisions within a reasonable amount of time. However, the scope of the activity of the two organizations diverge, as well as their goal and impact. The Oecd’s activity in the field of regulatory policy dates back to the mid 90s, when the first set of Recommendations on Improving the Quality of Government Regulation was published, strictly connected with the objective of fostering countries’ competitiveness. In the following years, the Oecd published an extremely high number of documents, in which a gradual evolution in the organization’s policy can be traced. In the 2012 Recommendation on Regulatory Policy and Governance, the perspective adopted by the Oecd is no longer the one of “ad hoc” reforms, but the one of an overall and comprehensive regulatory policy, in which open government, the active participation of stakeholders and simplification have a key role. Through an extensive use of peer reviews, the Oecd influenced national governments in shaping their regulatory policies, even beyond the number of its Member States. The Council of Europe, on the contrary, appears less successful under this regard. Its Code on good administration of 2007 aims at recognizing existing best practices and at pushing States that do not align to these practices to adopt them. The lack of innovative impact, as well as the lack of tools intended to foster the implementation of the Code, has so far limited the influence of the Council of Europe in shaping national administrative procedures
Multi level administration inspections and fundamental rights: is judicial protection full and effective?
No full textIn the last decades, an increasing number of EU institutions and agencies have been given the power to conduct administrative inspections. While the legal literature has traditionally focused on the Commission’s inspection powers in competition proceedings, the European Anti-Fraud Office (OLAF), the European Central Bank (ECB), the European Securities and Markets Authority (ESMA), the European Aviation Safety Agency (EASA), and the European Fisheries Control Agency (EFCA) are also entrusted with such powers. The Commission has also been granted inspection powers in the field of Food Safety. Inspection powers can have a crucial impact on the fundamental right of the inviolability of the home, recognized by the Court of Justice as a general principle of EU law, and protected under Article 8 of the European Convention of Human Rights (ECHR) and Article 7 of the EU Charter of Fundamental Rights (ECFR). This Article argues that the current remedies do not fulfill all the criteria set forth by the Strasbourg Court for ex post judicial control vis-à vis inspections to be full and effective, in particular when these powers are used in the context of composite procedures, and suggests remedies to improve the system of review, in order to effectively protect fundamental rights
Soft law, agenzie europee e controllo giurisdizionale: le contraddizioni del caso FBF
No full textQual è il perimetro del controllo giurisdizionale sugli atti di soft law delle agenzie europee? Il caso FBF fa emergere, per un verso, le contraddizioni del rapporto tra ricorso di annullamento ai sensi dell’art. 263 TFUE e rinvio pregiudiziale ex art. 267 TFUE in relazione al controllo giurisdizionale sugli atti di soft law. Per altro verso, nel verificare se l’EBA avesse ecceduto dalle proprie competenze, la Corte mostra di voler condurre un controllo penetrante, sulla traccia di quello prefigurato come condizione di legittimità per la delega di poteri alle agenzie nel caso ESMA. Nell’adottare un criterio teleologico nell’interpretazione delle competenze dell’EBA, però, la Corte apre la strada a un’ulteriore estensione dell’ambito di azione delle agenzie.What remedy can be used under EU law, as far as agencies’ soft law is concerned? The FBF case shows, on the one hand, the contradictory relationship between the action for annulment and the indirect review via a preliminary ruling with regard to non-binding acts. On the other hand, in verifying if EBA exceeded its scope of action, the CJEU affirms its commitment to conduct an in-depth scrutiny, following the type of judicial review considered under the ESMA case as a key condition for a legitimate delegation of powers to agencies. However, in adopting a teleological approach in interpreting EBA’s competences, the Court paves the way for a further broadening of the agencies’ scope of action
Transnational Administrative Law and Climate Change in the Age of the Green Deals. Introduction to the Special Issue
No full textWhile fragmentation is all but new to the area of international cooperation in the environmental area, the adoption of regional green deals, resulting in a regulatory competition (implicit in the subsidization of national green industries) and in a geopolitical clash, risks magnifying fragmentation. This is why this special issue focuses on transnational mechanisms, as a means to overcome fragmentation. More specifically, the focus is on transnational administrative law principles, measures and forms of cooperation, both within EU and international settings
Relative authority in global and EU financial regulation: linking the legitimacy debates
No full textFinancial regulation appears as a polycentric, highly fragmented regime. At the global level, transnational regulatory networks set standards for banking, securities and insurance. Within the complex financial regulatory architecture established in the EU in the aftermath of the crisis, the public authority of EU bodies is relative not only horizontally (because of the number of EU actors intervening in financial regulation), but also vertically, as limited by global regulators. The focus on the interplay between global and EU regulation helps to address the legitimacy gaps emerging both at the global and at the EU level. First, the new EU financial architecture—as for some of its specific institutional features—can provide lessons for the global financial architecture, hence contributing to fostering its legitimacy. Second, shedding light on the impact of global regulators within the EU shifts the terms of the debate on the legitimacy of the EU bodies themselves. If the activity of the latter is effectively shaped by global regulation, then efforts intended to ensure that EU agencies’ activity is legitimate need to extend accordingly. From this perspective, the analysis attempts to complement the debate on the legitimacy of EU regulators
Adjudicating Climate Change (In)Action From Urgenda To Neubauer: Minimum Reasonableness And Forward-Oriented Proportionality
No full textThe article focuses on one aspect of climate litigation: what is the standard of review for adjudicating climate action (or inaction, or inadequacy of such action) of a State?
Comparing the legal reasonings in the cases Urgenda and Neubauer, the article argues that the Dutch Supreme Court used a ‘minimum reasonableness test’, while the German Federal Constitutional Court developed a ‘forward-oriented’ version of the principle of proportionality.
The analysis shows that these different types of standards of review entail a different use and reliance on science and involve a broader or narrower judicial review on Governments’ discretion. The transformation of the principle of proportionality, as developed in the Neubauer case, potentially drives more ambitious climate action, taking seriously the principle of inter-generational equity and paving the way for primacy of climate action over other public interests. However, this trend could face opposition from the point of view of the separation of powers principle
Transnational Climate Litigation: Emergence And Limits Of A Diagonal Protection Of Fundamental Rights
No full textThere is a growing body of climate litigation cases that are strictu sensu transnational, directed against foreign corporations or foreign governments. In some cases, courts adopted an approach open to reconsider well established principles: in the Neaubauer case, the German constitutional court did not rule out the responsibility of Germany in fulfilling its positive obligations to protect fundamental rights of foreign citizens, while the Inter-American Court on Human Rights and the UN Committee on the Rights of the Child opened to the possibility of diagonal human rights protection in climate litigation. In the recent Duarte case, the ECHR declared inadmissible the complaint directed by some Portuguese youths against States other from Portugal, limiting the recognition of the extraterritorial protection of fundamental rights. Climate transnational litigation shows how climate change continuously challenges old legal paradigms, fostering the need for adapting existing instruments and building new ones
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