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The Common Core of European Administrative Law

Periodic Reporting for period 3 - CoCEAL (The Common Core of European Administrative Law)

Reporting period: 2018-09-01 to 2020-02-29

COCEAL is a new comparative research concerning European administrative laws. The central issue that it addresses is whether, despite the innumerable differences between the various systems of administrative law, there are not only some similarities between them, but also some “common and connecting elements” – that is, a ‘common core’ – which operate at different levels, including the values served by administrative law, the general principles of law of which the courts and other agencies must ensure the respect and, last but not least, the forms of action that are used by public authorities in the discharge of their functions and powers, including adjudication and rule-making, as well as their contractual activity.
This issue is important for society for two reasons, that related but distinct. First, especially after the rise of the ‘positive’ State almost every area of social and economic activity is subject to government action in one form or another. There is virtually no individual or collective interest that is not affected by it. It is important, therefore, to compare the powers and procedures of the administration, as well as legal remedies, in a variety of legal systems in order to ascertain their common and distinctive traits. Second, comparing administrative laws is particularly important in the European legal area because this is characterized not only by the existence of supranational organizations – the European Union and the Council of Europe – that are based on some common values, but also by the administrative system of the EU, with its particular enforcement mechanisms and procedures.
In this context, our research has two main goals. First, we seek to promote a better understanding of administrative law through a methodological shift, in the sense of moving away from the mere juxtaposition of national legal systems to legal comparison. We have thus elaborated a “factual method”, based on hypothetical cases, that partly reflects the work that has been done in the field of private law in the last twenty-five years and partly adjusts it to the field of public law. The second goal is to promote an advancement of knowledge with regard to an increasingly important part of administrative law; that is, administrative procedure.
The research project provided two main types of activities; that is, the elaboration of an innovative methodology, based on a ‘factual analysis’ of questions concerning the discharge of administrative functions and powers by public authorities, and the advancement of knowledge concerning not only the rules that that determine the solutions to such questions, but also their underlying rationales, including background theories and the various ‘legal formants’ that are relevant in this field.
Although the elaboration of the new methodology will continue for all the period (five years) covered by the research, the definition of the criteria governing the factual analysis is for sure the most evident achievements so far. Methodology has been so far discussed in a number of workshops and seminars in Europe and elsewhere, getting enthusiastic support as well as some helpful critical remarks by the academic community. As a result of this, the new framework for analysis has been illustrated in a paper written by professors della Cananea and Bussani, which will soon be published by one of the leading journals in this field, the Maastricht Journal of European and Comparative Law. Other papers have been published by other members of the research team.
Moreover, the new methodology has already been applied to an important sub-topic, that is, the liability of government officers. As far as this sub-project is concerned, all national reports have been collected and will be soon published in a volume. At the same time, the research team has undertaken a ‘diachronic’ comparison concerning how the courts defined and refined some standards of administrative conduct in the period of the consolidation of national administrative laws (1890-1910). These studies will be published in another volume. All papers and materials will be published in a new comparative series with a major European publisher.
To sum up, the innovative methodology has been elaborated and tested; it has been discussed in a number of meetings with the scholars in the project, as well as with others, including lawyers, historians of law and political scientists; it has been applied to some sub-topics and will be used for the others. All papers and materials will be published with a view to making them accessible to a wider public of scholars, as well as of other people interested in the functioning of the machinery of government.
In this respect, there are two developments that are related, but distinct. First, while traditional approaches to the comparative study of administrative laws focused either on similarities between national legal systems or on their differences, one of the innovative features of our research is that it considers both. Second, instead of describing national rules, our research is based on a ‘factual analysis’, that is, on facts-based questionnaires that are discussed in workshops with the participation of national experts, as well as some discussants. In this sense, this research is a collective enterprise, quite different from the compilation of individual national reports. The application of the factual method has given significant results so far, in the fields of government liability in tort, judicial standards for public authorities (with a focus on the period 1890-1910), and judicial review of procedural weaknesses from the viewpoint of propriety and fairness. The output of this part of the research will be published in books edited, in the next years. The method will be applied in the subsequent years for investigating further fields of administrative laws, such as procedural requirements for limitations to property rights, as well as administrative rule-making and planning.