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Published online by Cambridge University Press: 20 January 2017
A Law on Administrative Procedure (LAP) is an essential institutional feature of democratic and effective governments. It is a general law on executive law-making, setting out how laws and regulations should be made. The need for a LAP at EU-level is growing – to counter the EU's legitimacy deficit and to make the regulatory process more predictable and robust. At the same time, the EU regulatory “machine” faces new challenges and pressures, as it seeks to implement highly complex (risk management) regulation. Greater regulatory effectiveness depends on more transparency, evidence quality standards and participation. As such, an EU LAP appears to be the natural culmination of the EU Smart Regulation agenda. Since the European Parliament in 2013 called for the Commission to adopt a LAP-related legislative proposal, the debate has gained in visibility and political salience. This article makes the case for an EU LAP for the EU institutions, citizens and businesses – provided the Law enshrines the four key principles of good administration (transparency and consistency; public participation; public record; and accountability); it establishes clear and legally binding procedural standards; and it covers as a principle also rule-making and adjudication decisions by all EU institutions and bodies involved in the preparation, adoption, implementation and repeal of secondary legislation.
1 See for instance OECD (2009), Indicators of Regulatory Management Systems, OECD Publishing, Paris.
2 One of the most active networks of administrative law scholars is the “Research Network on EU Administrative Law” (ReNEUAL), at http://www.reneual.eu/.
3 Resolution 2012/2024(INI) of 15 January 2013, at http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2012/2024(INI)&l=en. A summary of the EP considerations is available at http://www.europarl.europa.eu/oeil/popups/summary.do?id=1243294&t=d&l=en.
4 See European Commission, “Follow up to the European Parliament resolution with recommendations to the Commission on a Law of Administrative Procedure of the European Union”, of 24 April 2013.
5 The weaknesses include (i) Absence of formal “public dockets” where all of the information relied upon by decision-makers is collected and is available for public review; (ii) Ability of decision- makers to rely on input from “experts” whose appointment is not subject to defined standards or review, and whose input is often not subject to formal public review and comment; (iii) Limited obligation by decision-makers to explain the legal and factual bases of their decisions, including responding to comments made by the public; (iv) Severe constraints on the ability of EC courts to meaningfully review such decisions because there is no clearly defined factual/technical record upon which the public has had an opportunity to comment and on which decisionmakers have relied; and (v) Formal standing to bring direct actions in EU courts remains limited.
6 In this respect, the ERF has promoted the “Innovation Principle” initiative. See http://www.riskforum.eu.
7 See European Parliament, European Added Value Assessment, Law of Administrative Procedure of the European Union, EAVA004/ 2012, of 23 October 2012, p.17.
8 Ibid., pp.21–24.