Theory of the forms of action of the EU administration
This project focuses on the legal perspective of forms of action used by the European Commission, organs, institutions, and authorities of the European Union and European Agencies (hereafter: EU Administration) when they undertake their administrative activity. Legal uncertainity relates to the binding effects – the requirements concerning the administrative procedure as well as regarding the various options of legal protection – which are connected to the choice of forms of action of the EU administration (e.g. individual decisions and administrative contracts). Thus, this research project aims to develop a theory of the various forms of action of the EU administration.
The theory of forms of action is in any case central to German administrative law. It is based on the assumption that the legal order offers differents forms of action to the administration, e.g. administrative decision, private or private-public contracts, etc., from which one could be selected in a purposeful manner because the administration is aware of the legal consequences of its different forms of action. The theory of forms of action can also help to answer to the question of the legal requirements an administration decision needs to fulfil in a concrete instance or which legal effects it has in a specific case. The theory of the forms of administrative action makes it possible, for the persons affected by specific administrative measures – citizens or other administrations or public authorities –, to foresee the legal consequences of administrative decisions taken within a legal frame of action. The requirements for the given administrative procedure, which are identified before the final decision, depend on the correspondence of administrative measures to particular administrative forms of action (in German law). Thus, both the binding effects and the validity of the measure could also depend on wheter it respects the requirements concerning the form of the administrative action. The “legal nature” of the decision defines the administrative procedure to be followed, specifying the jurisdiction of the courts to offer a legal protection or how the decision can be enforced by the administration itself (or with judicial help) towards the addressees of the decision. In general, the binding effects on the administration, the citizens and other administrative authorities depends on the form of administrative action, in which the administration has shaped its decision. This in turn helps us answer several questions: could the decision be revoked, withdrawn, dismissed or otherwise altered in the future, or is this possible only within certain limits? Which effects does an illegal decision have? Is such an illegal decision to be deemed as if it was never taken, as null, or as valid despite its illegality even if (and whether) modifications are needed?
Similar structures and thought patterns could be found in administrative legal orders of other EU member states. In principle, according to the general opinion, it is important for the EU administration to develop a general theory of forms of administrative action in order to give clarity to the decision-making process, binding effects of decisions and questions of legal protection. In fact, some forms of this theory already exist in EU administrative law. However, this theory is riddled with weaknesses that could be problematic for citizens and enterprises, i.e. those directly affected by “individual decisions” of the EU Commission or by legal contracts with the EU authorities. For the EU member states administrations, a definition of the isolated forms of action and their binding effects as well the different legal stages in the administrative procedure, are without a doubt of huge practical significance. This also applies to action of the EU administration which is strongly influenced by French administrative law and which needs to offer efficient and flexible channels for the implementation of EU law.
In earlier stages, this project focused on the contracts awarded by the EU administration. The project’s principal investigator and former researchers have taken part in the work of the volume IV of ReNEUAL Model Rules on EU Administrative Procedure (U. Stelkens, “Verwaltungsverfahren als Gegenstand von Buch IV des ReNEUAL-Musterentwurfs”, in Schneider/Rennert/Marsch [eds], ReNEUAL-Musterentwurf für ein EU-Verwaltungsverfahrensrecht, conference issue, 2016, p. 165-181), and published papers to map the research ground covered in the present project’s different phases.
In the future, besides the development of the academic bases of a theory of forms of administrative action of the EU administration, this research will focus on individual decisions of the EU administration, defined in Art. III-2 of ReNEUAL-Model-Rules as “administrative action addressed to one or more individualized public or private persons which is adopted unilaterally by an EU authority to determine one or more concrete cases with legally binding effect”. In addition, the research will explore the possibilities for the EU administration to take decisions with effects that could be defined as intermediate, falling “between” normative production and individual decisions, thereby addressing questions such as: Do decisions with global impact or the French “actes administratifs d’espèce” really exist?