The project “Common Core of European Administrative Law” (CoCEAL) aims at ascertaining whether, despite many differences between European systems of administrative law, there are some connecting elements, or a “common core”, and, if so, whether such ‘connecting elements’ can be formulated in legal terms, as opposed to generic idealities.

 

 1. Introduction

 The intent of the research is to examine some of the questions which arise when a comparative inquiry is undertaken, with a view to ascertaining, in an important area of administrative law, that of administrative procedures, whether and to what extent there exists a common ground or a “common core” of European administrative laws; that is, that behind and beyond innumerable differences, there are some “shared and connecting elements”, which can be formulated in legal terms, in the guise of general principles of law and mechanisms for their application.

 

 2. Comparing Administrative Laws: Some Issues in Methodology

 As observed by Schlesinger with regard to the field of private law, very often scholars coming from different jurisdictions were simply involved in the compilation and juxtaposition of the various solutions that could be found in their own legal systems, without proceeding to the further step of comparison, properly considered. It ought to be said at the outset that such critique in no way affects the quality of the research that was carried out, sometimes by some of the most distinguished specialists of administrative and constitutional law. What is at issue is, rather, the methodology followed by those works, considered as a whole.

 In addition to the prevailing tendency to juxtapose national systems of administrative law, there is another difficulty with the uses of the comparative method in traditional works. It is the over-emphasis on legislation, as distinct from other sources of law.

The main difference between the traditional approach and the comparative inquiry elaborated and conducted by Schlesinger in the 1960’s, with the intent to identify the common and distinctive elements of the legal institutions of a group of States, is precisely this: instead of seeking to describe such legal institutions, an attempt was made to understand how, withing the legal systems selected, a certain set of problems would be solved. As a result of this, the problems “had to be stated in factual terms”. Concretely, this implied that, drawing on the materials concerning some legal systems, Schlesinger formulated hypothetical cases, in order to see how they would be solved in each of the legal systems selected; his method, therefore, must not be confounded with the mere consideration of judge-made law. And it turned out that those cases were formulated in terms that were understandable in all such legal systems.

 The CoCEAL Project intends to adopt a factual approach, in the sense that some hypothetical cases are formulated and submitted to the participants. It is only if such cases are formulated in terms that are understandable in all such legal systems that the participants are requested to explain how they would be solved within each of their legal systems. Of course, there might be solutions that are not entirely explicable on the basis of existing legislation, but depend on judicial interpretation or government practice.

 

  3. The Study of the Common Core of European Administrative Laws: Basic Choices

 After dealing with these issues in methodology, the agenda which we think must be set for the study of administrative laws in Europe must be clarified in several respects. It must be clarified, first and foremost, with regard to the purposes of our study. Second, a proper justification is needed for choices concerning both the subject – administrative procedure - and the legal systems that will be studied. Finally, we must approach this exercise with a high degree of historical sensitivity. Synchronic comparison will thus be supplemented by diachronic comparison.

 

A) Purposes of the Research

 The main purpose of the study that is presented here is the advancement of knowledge about administrative law, viewed as an increasingly important element of European societies, much more than it could be in 1815 or 1915.

 This has several implications, three of which are particularly important. Firstly, our task is not so much the discovery that there exists, among the legal systems of Europe, ‘common ground’ or ‘common core’. What we intend to study is the nature and scope of such common core, which implies a series of attempts to delineate and weigh it. The method that we are proposing to adopt, therefore, does not coincide with that used by the ECJ, not only because we have not a normative purpose, but also because we must seek to provide adequate explanation for both common and distinctive traits.

 Secondly, precisely because ours is an attempt to understand both common and distinctive traits, not just to put them side by side, due attention must be given to all factors that determine them, including not only legislation and general principles of law, as elaborated by the courts, but also other factors that determine the solutions envisaged, including the theories that shape our views about a given subject.

 Thirdly, and consequently, the question to be addressed is not simply whether national systems of public law subscribe to the same standards of administrative law, such as the duty upon the public administration to give reasons, the duty to hear the addressees of its decisions, and to allow these addressees to have access to the files concerning them. It is also whether, that being the case, similarities are limited to the broad formulations of such principles or do they extend to certain mechanisms, in particular to administrative procedure, viewed as a central element of modern systems of public law, an aspect to which we will soon return.

 

B) Choice of Subject: Administrative Procedure

The topic that has been chosen for comparative exploration is administrative procedure. There are three main reasons that justify this. First, the emergence of procedures has characterized more or less all European legal systems. Second, the concept of administrative procedure is increasingly legally important. Third, the concept of procedure is not neutral, because there is not a single underlying rationale, but a variety of rationales.

 

C) Choice of Legal Systems

 Another crucial choice regarded the legal systems to be considered. In this respect, three aspects had to be considered: the focus on Europe, the choice of the national legal systems and, last but not least, the desirability of including a non-State entity such as the EU.

 From the first point of view, the choice of Europe is justified by not only by the existence of common roots and values, but also by both the similarity and diversity of solutions concerning the ways in which public authorities and other entities perform their functions and exercise their powers and, perhaps more evidently, the diversity of conceptual tools used by jurists.

 While all this confirms that the choice of Europe is particularly suited to an inquiry on the institutions covered by administrative law, it leaves open the question of which legal systems should be selected. Schlesinger’s methodological remarks provide again a helpful starting point. For a long time, he argued, the comparative study of public administrations and their laws was confined to the two main political systems of Europe, France and the UK, while more limited attention was devoted to Germany, Italy and few other countries. Of course, no research project escapes from limits of budget and workforce. But within such limits, we strongly believe that an effort must be made to go beyond the circle of more ‘influential’ legal systems. There are good reasons, general and specific, for this. From a general point of view, for all the importance of England and France, they have several important common and distinctive elements with other legal systems, including Ireland and Scandinavian countries for the former and Italy, Portugal and Spain for the latter. Moreover, even though Dicey and others have been inclined to consider the German administrative system closer to the French than to the English, it differs from the former in a variety of aspects. A word should be said, in particular, about the importance of Austrian law, in itself and for the group of countries that are traditionally included in Central and Eastern Europe. The jurisprudence of Austrian imperial courts has variably influenced the structures of public law and the significance of Austrian codification of procedures cannot be neglected.

 An effort must be made, moreover, to include countries with an adequate geographical distribution, with varying legal systems, at varying stages of development, and with a different pattern of exchanges with other systems. Consider, for example, Poland, Hungary and Roumania. A non-EU State, Serbia, with its strong influence of the law of the former Yugoslavia, is another promising example. Considered as a whole, Central and Eastern Europe is central to our study for a twofold reason. On the one hand, it is interesting to see whether certain structures and processes that pre-existed the inclusion of those countries in the area of influence of the USSR survived or re-emerged before the dissolution of socialist regimes. On the other hand, it is even more interesting to understand the choices that have been made after the fall of the Berlin Wall. For instance, did they look at their Western neighbours before codifying administrative procedure? Did they opt for a system of judicial review of administration that is entirely in the hands of ordinary courts or did they set up administrative courts? And, independently from this, which standards of review are followed by their courts?

 Finally, there is another important trait that differentiates our research from those which have been carried out in the field of private law. It is the consideration of non-State legal entities in a comparative project of this type. We have thought that a study in the field of public law in Europe could benefit from a consideration of EU law, with the caveat that we are less interested, in this respect, in the law that the EU applies to its Member States than to the law that applies to its institutions. What characterizes this ‘new legal order’ is not just the kind of distinction between public and private law that was drawn from civilian systems. It is also the fact that since the beginning the ‘new legal order’ had its own administration, with strong regulatory powers over business, and its own administrative law. This challenges the idea according to which administrative law is consubstantial to the State, and raises interesting issues about the origins and adaptations of the principles and rules that govern the conduct of EU institutions.

 

D) Synchronic Comparison: Operational Aspects

 It is important, first and foremost, to be clear about the formulation of the cases on which our synchronic comparison is based. For each of the sub-topics previously indicated, our comparative experiment does not begin with a questionnaire that is sent to the participants together with a request to follow it when writing their national reports. Concretely, after one or several editors have produced a first draft of a factual questionnaire (with a number of cases ranging from ten to fifteen), this is sent to the participants, with a view to be discussed during the seminar. The main task of the seminar is precisely to ascertain whether those cases make sense within all the legal systems selected. It is only after the cases have been discussed, and there is an agreement as to whether or not they make sense in all the legal systems to be covered, that the questionnaire is approved. It is, then, sent to all participants, who will explain how those hypothetical cases would be solved within their legal systems and the underlying reasons, which often will require them to refer not only to existing legal sources, but also to other elements (or legal formants), including doctrinal opinions, judicial trends, bureaucratic practices, and the like. This will provide a key to undestand the role played by history as well as by ideas and beliefs about public law. Finally, the national reports form the basis of the comparative report, which is sent to all participants.

 

E) Diachronic Comparison

 Finally, more than a word should be said with regard to a parallel avenue of our study; that is, the retrospective on some salient aspects of the evolution of administrative law in Europe. The underlying idea is that an adequate comparison must be not only syncronic, but also ‘diacronic’. More precisely, synchronic comparison should go hand in hand with the diachronic comparison, that is, with the study of how institutions and rules have changed through time.

 The task of confronting the development of administrative procedure across Europe is a complex task. But there is much to be learned, for example, from the development of judicial doctrines about infringements of essential procedural requirements and evident errors of fact after 1890 and in the period of the Belle époque. Furthermore, and as noted earlier, the influence of the Austrian legislation on administrative procedure in other European countries in a period of the history of Europe (1924-1958) that is generally neglected in the ‘standard’ accounts of public law can enrich our understanding of how legal cultures interact notwithstanding important political changes and differences. We may probably find not so much ‘new’ evidence, but we might be able to use such evidence to give a more interesting and more fruitful look at the interaction between legal cultures in Europe.

 It is in this sense that the method we will follow is both comparative and historical. The method employed will be comparative in the sense of confronting problems and solutions in a variety of European jurisdictions, in order to discern common and distinctive aspects, with a view to ascertain whether a sort of common core exists. Our method will be historical, not only in the sense of being rooted in the relentless dynamics of government, but also in the sense of seeking to identify the most significant exchanges between and across legal cultures.