To efficiently ensure that EU law will have an impact on the national level, the EU is dependent on the loyal cooperation of national administrative authorities, which has been described as a distributed administration. To further this, the CJEU has developed certain responsibilities flowing from EU law ensuring that national administrative authorities will give full effect to EU law within their respective areas of responsibility. This includes a responsibility that in many states would be otherwise reserved for courts – namely, to disapply national legislation when it conflicts with requirements under EU law. In this post, which is based on our recently published article ‘Administrative independence under EU law: Stuck between a rock and Costanzo?’ in European Public Law, we will illustrate how this may create a tension between the hierarchical structure of Member State administrations on the one hand, and the mandates and responsibilities provided to administrative authorities on the other. It may force a subordinate administrative authority to override their own government. Similar to courts, national administrative authorities thus have the invidious position of serving two masters at once, while not enjoying the same structural or legal independence towards the national government.
Interpretive independence under Costanzo and Garda
In this context, we will focus on a specific aspect of administrative independence, namely the obligation for national administrative authorities to make an independent interpretation of what the law – here specifically EU law – requires – as a means of ensuring (and thus not delaying) the effective enforcement of EU law. In the EU law setting, this obligation was established in the Costanzo case (C 103/88), but is succinctly summarized and elaborated by the CJEU in the Garda Síochána case (C-140/20):
Rules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law. […] It follows from the principle of primacy of EU law, as interpreted by the Court […] that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means.
The foundation for the rulings in Costanzo and Garda Síochána can be found in a mesh of principles under EU law, such as the primacy of EU law, the principle of direct effect, the principle of consistent interpretation, and the principle of sincere cooperation. All these principles, through Costanzo and Garda Síochána, are brought to bear on the administrative level. An opposing principle is that of national administrative autonomy, meaning that the EU should not govern how national administrations are set up to govern the exercise of EU law. However, EU law, through Costanzo and Garda Síochána, does have bearing on setups that would conflict with the full effect of the legal principles mentioned above. In other words, administrative setups that hinder national administrative authorities from effectively implementing and enforcing EU law, such as by requiring a more time-consuming or more complicated procedure, are incompatible with the principles of EU law. Of note is also that this applies even when national constitutional rules are the obstacle to effective enforcement of EU law – putting national administrative authorities in positions that within the national system may be reserved for constitutional courts.
The invidious positions of national administrative authorities under EU law
The requirement to disapply national rules that conflict with EU law will in many Member States contrast with the mandates of administrative authorities in relation to national law. However, there are examples of Member States where administrative authorities already have enjoyed a certain level of independence towards their government and other state authorities in the exercise of law or individual decision-making. In these states, the independent exercise and interpretation of the law by administrative authorities are intended to safeguard legality and prevent political discretion from side-lining legal rules. However, this necessarily challenges the ability of the government to directly control and steer formally subordinate administrative agencies within the confines of specific cases. When it comes to EU law, the government also lacks its most important method of influencing the decision-making of their administrative authorities, namely by amending the law. Meanwhile, authorities are also left in a difficult position. If the administrative authority suspects that national law has disregarded requirements under EU law, these authorities, unlike courts, lack the possibility of asking the CJEU for guidance under article 267 TFEU, and thus cannot outsource potentially controversial findings to the EU level. Instead, they are asked to directly disapply national rules, while still facing a subordinate position to the government that enacted those rules. This becomes even more sensitive in situations where the national government has a noticeably clear view of how EU law should apply in relation to national law, or on the interpretation of EU law in general.
In lieu of direct control over the interpretations of national administrative authorities, other means of guiding, or influencing, authorities in their interpretation of the law may develop, as well as other means for administrative authorities to display deference to the government. Administrative independence in this context thus highlights the tension between organizational and legal hierarchies, with the degree of administrative independence likely influencing how this tension will play out in practice. To illustrate how these dynamics may play out, Sweden is an interesting example of a Member State with far-reaching administrative independence in the national constitutional setting. Foundational to the Swedish administrative order is, namely, that national administrative authorities are constitutionally required to act independently in the application of law and in deciding individual cases, while still remaining hierarchically subordinate to the government in other situations. This differs from the requirements under Costanzo and Garda Síochána, in that EU law provides responsibilities without protection, while Swedish constitutional law also forbids direct interference from the government and other authorities in the decision-making of national authorities.
The case of the Data Retention Directive
One example of how the invidious position of national authorities may play out can be found in the case of the Data Retention Directive (2006/24/EC) following the CJEU ruling in Digital Rights Ireland (joined cases C-293/12 and C-594/12). The ruling, which found the Data Retention Directive invalid due to conflicts with fundamental rights, formally did not affect the national rules implementing the directive. It did, however, strongly suggest that, as far as they resembled the directive, those national rules (such as in Sweden) were likely to have to be set aside conflicting with EU law. Immediately following the CJEU ruling in Digital Rights Ireland, the Swedish administrative authority in charge of checking compliance with the data retention rules announced that they would stop enforcing the rules due to the conflict with EU law. This, it became clear, clashed with government policy. Both the minister of justice and the Swedish police authority clearly expressed in the media that ‘Swedish rules are in force’. As the government was constitutionally prohibited from interfering in the decision-making of the administrative authority, they instead assigned a special investigator (who had previously served as national police commissioner and later as a judge of the Swedish supreme administrative court) the task of analysing the consequences of the judgment for the Swedish data retention rules. He concluded that due to minor differences between the national legislative transposition and the directive, the Swedish rules could survive scrutiny under EU law. Following this investigation, which has little to no formal legal value, the responsible administrative authority announced they would once again start enforcing the data retention rules. As telecommunications providers refused to resume the retention of communications data, the authority issued a fine which subsequently led to a process before national administrative courts, whereby a request for a preliminary ruling from the CJEU was made. The request subsequently resulted in the Tele2/Watson ruling (joined cases C‑203/15 and C‑698/15), which clearly established that the Swedish data retention rules violated EU law. This illustrates how the government, unable to formally intervene, instead sought to provide a national interpretive resource, which – though formally having no weight – must have been intended to influence the interpretation of the consequences of the Digital Rights Ireland case already made by the national authority. It also illustrates how the administrative authority, despite having made its own assessment, backtracked in response to arguments that had no formal standing as a source of law (and definitely not as a source of EU law), rather than sticking by their initial understanding of the rather clear judgment from the CJEU.
Stuck between the devil and the deep blue sea?
As we have illustrated above, administrative authorities acting with independence against their own government in the application of law shifts discussions surrounding conflicts between national political priorities and EU law obligations further towards the legal arena, and away from the political. Member State sovereignty over its own administrative authorities is then reduced. Unlike the Swedish independent administrative order, which assumes that the application of law within administrative authorities should be independent because it strengthens parliament when laws are applied without interference, the EU legal order lacks an important legislative feedback mechanism. If the effects of the law, as mediated by the decisions of the independent administration, are unsatisfactory, the legislator does not hold the mandate to independently amend the law. The shift from the political to the legal sphere thus essentially places portions of the activities of national administrative authorities beyond the control of the nation-state to which they belong.
Moving on to the administrative level, national administrative authorities faced with a conflict between EU law and national law have a clear obligation. However, when the existence of a conflict between national law and EU law is more unclear, national administrative authorities have no recourse to interpretive assistance from the CJEU. Given the potential for political sensitivity of ‘administrative activism’, if national regulation would be set aside, they are likely to turn to the most explicit and detailed interpretive guidance on the national regulation’s conformity to EU law that they can find. This opens up for politically expedient interpretations provided by national actors rather than the CJEU, potentially undermining the point of the obligations flowing from Costanzo and Garda Síochána.
The CJEU may have acknowledged this issue in its case-law on data protection. In Schrems I (C-362/14), the Court opened for a new type of remedy. To prevent national authorities from becoming stuck in an interpretive catch-22 without access to guidance, the CJEU found that:
It is incumbent upon the national legislature to provide for legal remedies enabling the national supervisory authority concerned to put forward the objections which it considers well founded before the national courts in order for them, if they share its doubts as to the validity of the Commission decision, to make a reference for a preliminary ruling for the purpose of examination of the decision’s validity.
This finding is so far limited to the field of data protection, where the independence of the national data protection authority enjoys special protection. Given the similarly invidious position of national administrative authorities, perhaps it is time that the Court begins providing national administrative authorities with not only obligations but also some tools. This would be a step towards better realizing the intentions expressed in the Costanzo and Garda Síochána rulings.
Posted by Lena Enqvist & Markus Naarttijärvi (Umeå University)
Suggested citation: L Enqvist and M Naarttijärvi, “The Obligation and Sensitivity of Administrative Independence under EU law: Time for an updated Toolbox?”, REALaw.blog available at https://wp.me/pcQ0x2-qc