While the history of European integration has always been characterised by tensions between unity and diversity and integration and national autonomy, recent years have beenmarked by attempts from the Member States to reclaim the right to have different interpretations of shared European values such as the rule of law, as well as other legal principles like proportionality, for example. This has been the case even though these values and principles were understood for decades to be part of a European jus commune, a common core of administrative institutions and principles. For instance, the Polish Constitutional Court openly challenging rule of law values together with the primacy of European Union law epitomizes this trend towards European disintegration (see Hofmann).
What happened between the optimism of the past and the bleak picture of disintegration currently painted? Analysing one specific phenomenon, i.e., transplants, offers insights into these tensions between integration and disintegration. Indeed, when ‘successful’, transplants have been a factor contributing significantly to integration and uniformization across European Member States or at least facilitating to great extent coordination between their administrative systems. On the other side, diagnosing failures in transplants and their cause helps us better unpack patterns of resistance towards such integration and increased coordination among the Member States. We, therefore, set to collect several case studies on resistance to transplants in administrative law. Together with an introduction, these case studies have been published in a special issue of REALaw that appeared in the spring of 2021 (issue 2021/1).
Our research project clearly shows that transplants have contributed positively to legal changes in the Member States thanks to ongoing discussions and cross-fertilisation. However, there have always been pockets of resistance against uniformity. It is as each administrative system has sought to make foreign ideas, techniques, and solutions their own, in some way, before fully embracing them.
Against this observation, our special issue tests the hypothesis whereby the embeddedness of legal techniques and institutions in their social context may prevent transfer from one system to another. As administrative law is concerned, this may be even more so given its intrinsic links with the prevalent power structure, ‘whether that be expressed in the distribution of formal constitutional functions or in the influence of those social groups which in each democratic country play a decisive role in the law-making and the decision-making process and which are in fact part and parcel of its constitutional and administrative law’. The aim of our special issue, however, has been to go further than broad generalisations highlighting the difficulty of legal transplants succeeding when there is a ‘lack of fit’ between the transferred rule and local conditions. Rather, all the collected case studies have explored in detail the dynamics of legal change which has resulted from an encounter between a transferred rule and the local context. In our case studies, change did not happen overnight, with resistance taking place along the way. This resistance to transplants has come from various actors: the administration but also the legislature, judges, and economic stakeholders. It has taken many forms, ranging from flat refusal to implement EU law mandated transplants to the transformation of the transplant in the process, the containment of its scope to the greatest possible extent or inertia and disengagement. Resistance could be explained by legal and non-legal factors, such as distinctive constitutional values or economic priorities.
To make sense of the complex picture emerging from this diversity present in our case studies, we have suggested dividing the process of legal changes triggered by transplants into stages that recur across our case studies and suggesting possible options that emerge over time. Our findings are summarized in the table below (table author: Yseult Marique).
In selecting our case studies, we sought to achieve a balance between Western countries (Belgium, England, France, and Germany) and former Eastern countries (Hungary, Lithuania, and Romania), testing further the idea that a post-socialist legal administrative mindset remains distinctive in the latter. We also sought a balance between Southern (France) and Northern countries (Lithuania), and between the usual suspects (England, France, and Germany) and smaller jurisdictions, usually more open to learning lessons from comparative law (Belgium, Hungary, and Lithuania). We also intended to balance importers of legal concepts (Belgium, Hungary, Lithuania, and Romania) and exporters of legal concepts (England, France, and Germany) to test whether resistance would differ depending on the traditional ‘prestigious’ status of an administrative system. Additionally, we aimed to get examples of transplants from different parts of administrative law, hence using illustrations drawn from the field of good administration (the right to be heard and ombudsmen), administrative justice (protection of legal certainty and proportionality), and the interface between the state and the market (independent economic regulators, the leniency programme, and competitive procedures).
In focusing on this resistance across our case studies (and not in comparing the transplanted technique in its original context and the host system), we hope that our special issue can offer new insights into the process of transplantation in the European administrative space itself, its possible variations, and the provisional result: it makes it possible to identify these specific items that have proved ‘transfer-resistant’, the ‘odd details’ that ‘are likely to encapsulate local traditions and experiences, social struggles, anxieties and visions’. Identifying these ‘odd details’ contributes to understanding the current process of experimentation, disruption, and disengagement going on in Europe, as well as exposing the political, social, and economic stakes underlying debates around the technicalities of the law. Furthermore, acknowledging events and facts that may have been hugely traumatising and challenging for some states and their administrations helps us understand their current position towards the political, social, and economic pressures they experience. In our view, fostering such mutual understanding could also pave the way for developing normative and enforcement strategies at the European level that are more tailor-made to the local contexts of the Member States, their administrative cultures, while also contributing to understanding the dynamics of the European administrative space, its limits, and how they can be overcome.
In the future, we hope to build on this special issue exploring resistance to legal transplants in the European administrative space. We would therefore be very grateful for any suggestion or feedback on the project and possible ways forward.
Posted by Emmanuel Slautsky (Université libre de Bruxelles)
Emmanuel Slautsky is an Associate Professor of Public and Comparative Law at the Université libre de Bruxelles (Centre de droit public) and an Affiliated Researcher at the Leuven Centre for Public Law (KU Leuven).
Suggested citation: E Slautsky, ‘Resistance to Transplants in the European Administrative Space: An Open-Ended Reading of Legal Changes’, REALaw.blog, available https://realaw.blog/?p=1077.
List of the contributions included in the special issue coordinated with Yseult Marique (available here)
- Yseult Marique, Emmanuel Slautsky, ‘Resistance to Transplants in the European Administrative Space’, 2021/1, 7-36
- Emmanuel Slautsky, ‘Independent Economic Regulators in Belgium: Contextualising Local Resistance to a Global Trend in the Light of the Belgian Economic Constitution’, 2021/1, 37-63
- Sophie Boyron, Yseult Marique, ‘Proportionality in English Administrative Law’, 2021/1, 65-93
- Emilie Chevalier, ‘The Case of Legal Certainty, an Uncertain Transplant Process in France’, 2021/1, 95-119
- Petra Lea Láncos, Írisz E Horváth, Sándor Szemesi, ‘The Failure of Leniency as a Regulatory Transplant in Hungary’, 2021/1, 121-139
- Ulrich Stelkens, ‘Judicial Protection and Competitive Award Procedures in Germany’, 2021/1, 141-165
- Agnė Andrijauskaitė, ‘Procedural Rights in Lithuanian Administrative Law – Resistance Fuelled by the Past?’, 2021/1, 167-183
- Dacian C Dragos, ‘The Romanian Ombudsman – A Legal Transplant Moulded by the Domestic Legal Culture’, 2021/1, 185-206
 J Ziller, ‘L’insoutenable pesanteur du juge constitutionnel allemand — À propos de l’arrêt de la deuxième chambre de la Cour constitutionnelle fédérale allemande du 5 mai 2020 concernant le programme PSPP de la Banque Centrale Européenne’ 2 Eurojus 151.
 O Kahn-Freund, ‘On Uses and Misuses of Comparative Law’ (1974) 37 Modern Law Review 13.
 M Graziadei, ‘Comparative Law, Transplants, and Receptions’ in M Reimann and R Zimmermann (eds), Oxford Handbook of Comparative Law (2nd edn, Oxford University Press 2019) 1252-1275, 1262-64.
 G Frankenberg, ‘Constitutions as Commodities: Notes on a Theory of Transfer’ in G Frankenberg (ed), Order from Transfer — Comparative Constitutional Design and Legal Culture (Edward Elgar 2013) 1-26, 15.