Concretised comparative law
Administrative law, so the saying goes, is concretised constitutional law (Fritz Werner, Verwaltungsrecht als konkretisiertes Verfassungsrecht, 1959). It aims to shape the everyday exercise of public power in the image of essential constitutional principles, such as the rule of law, separation of powers, or fundamental rights.
The story of European administrative law is also largely a story of concretised comparative law. The Court of Justice of the European Union (CJEU) laid down the foundations of European administrative law through what can be described as a process of creative comparison. It identified the common denominator of principles shared in the legal orders of the Member States – both substantive (such as proportionality or legality) and procedural (such as the right to be heard) – and incorporated them into the Union legal order as general principles of administrative law.
The language of European administrative law is, accordingly, a language borrowed, or better, built from the commonalities among national administrative laws. One should not underestimate the importance of such a shared language. After all, it enables communication about legal problems and their resolution between lawyers from across the Union who were trained in distinctive legal cultures. However, one should not overlook that such communication is still hampered by the appearance of consensus as to the exact meaning of that language.
Dissensus in the penumbra
Many concepts used in law – including European administrative law – are indeterminate concepts. Concepts, in a nutshell, are abstract linguistic shortcuts to describe factual or legal states of affairs. Indeterminate concepts include an area of positive certainty, an area of negative certainty, and a penumbra: some realities evidently fall within the scope of the concept, some realities evidently do not, and some are debatable. ‘Academic’, for example, is a concept. It is a shortcut to describe each of the countless individuals who conduct research and teach in higher education. It is an indeterminate concept. There is positive certainty, say, that Joseph Raz was an academic, just as there is negative certainty that Cristiano Ronaldo most definitely is not an academic. The characterisation of some individuals as “academics” will however be arguable and uncertain to differing degrees – an occasional guest lecturer who primarily works in industry, an extremely engaged Master’s student, or a practitioner who has no professional link to a university but sometimes pens law journal articles.
The European administrative law community, scholars as well as practitioners, has over time become quite effective at discussing issues lying in areas of conceptual positive and negative certainty. No lawyer, from the Algarve to Lapland, will question that an individual must have the chance to state and defend her own views before a public authority acting within the scope of Union law when it decides to impose a penalty in her regard, or that this requirement flows from the right to be heard. However, the shared language of European administrative law often proves deceptive. This is so once we step into areas which, though possibly of positive or negative certainty within our own national laws, turn out to be in a contested conceptual penumbra when scholars from different cultures argue about European administrative law.
A widely shared interpretation of a principle or concept within one national legal order might not be shared at all in another national legal order. Consequently, such differences may distort debates among Union lawyers and make them speak past each other.
In this regard, it is striking how the words of Andreas Donner, an influential early judge of the European Court of Justice, remain relevant to this day.
‘Every one of [the ECJ’s Judges] has to go through a process of disenchantment. He will start by consulting the texts and will find them reasonably clear. Perhaps during the argument he will be checked by some plea that, to him, at first view seems palpably wrong. But the argumentation is afterwards, in conference, taken up by one or two of his colleagues, and at a certain moment he discovers that they read the law in a different way. Then it will depend upon his personal and national character how long it is before he admits that his reading may be conditioned by some national preconception that should not apply in community law.
‘The problem … is not that we all chauvinistically defend our national solutions … as one more proof of the intellectual superiority of our own national law. It is simply that we have all been educated in a certain system which our professors presented to us as a well-balanced and logical precipitation of natural reason and natural justice’ (Andreas Donner, The Role of the Lawyer in the European Communities, 1968, at 43–44).
Similarly, today, the following can be said. There is no question that certain concepts and principles do exist in European administrative law, that the CJEU did play a critical role in their development, or that they do originate in national administrative laws. What remains problematic is that the very same concepts and principles of European administrative law can be understood very differently depending on the national legal tradition from which the interpreter stems. This phenomenon can be described as a “touch of stateness”.
Tacit disagreement between interpreters from different states occurs even though the concepts and principles of Union law are the same across all Member States, but also occurs especially because those concepts and principles of Union law fulfil the same basic purposes, indeed bear the same names, as the national versions from which they were built; and because jurists, given their immersion in a specific national legal culture, tend to simply assume that the Union version of a concept must mean the same as the national version that they are familiar with.
The role of comparative law: common ground and self-awareness
Comparative administrative law analysis can still serve a vital role in the development of European administrative law today. However, that role should not be confined to one of the purposes of comparative law, of identifying commonalities, however important that purpose proved to be in finding which generalisable concepts and principles in Member States’ laws.
Comparison is just as much about finding similarity as it is about finding difference. Locating and exposing differences between national and Union versions of the same concepts and principles can help cultivate self-awareness of parochial biases and assumptions that may distort communication. This is so not only in terms of horizontal comparison, i.e., of analysing how certain notions of administrative law are understood across Member States. Vertical comparison, i.e., analysing whether and how the Union and national versions of the same notion differ, may be of particular practical importance in areas of Europeanised national administrative law where both versions could potentially apply.
One can give two examples of how awareness of different versions of the same concepts and principles may impact upon arguments about European administrative law; one about horizontal differences (ie between Member States), the other about vertical differences (ie between Member States and the European Union).
On the one hand, the administrative governance of data protection offers a case study for how parochial differences in how certain concepts are understood can undermine communication; problem-solving; and, ultimately, effective enforcement. Under the General Data Protection Regulation (GDPR), national supervisory authorities are required to cooperate with one another (see e.g., Article 60 GDPR). Among other things, the lead supervisory authority must circulate a draft of the decisions it intends to take to the supervisory authorities of other Member States where individuals may be impacted by such decisions. The European Data Protection Board – the Union Agency where delegations of national supervisory authorities are represented and decide jointly – has documented numerous issues where such cooperation has been harmed by misunderstandings between national legal traditions.
Take the concept “complainant”, which is an important concept in GDPR enforcement procedures (see Article 77 GDPR). Intuitively, a “complainant” is simply a person who requests a competent authority for a remedy or correction of a specific state of affairs with which she is dissatisfied and which she deems unlawful. Yet administrative practice within the network of data protection supervisory authorities under the General Data Protection Regulation has shown that lawyers in different Member States adopt vastly different interpretations as to whether a complainant constitutes a party to an administrative procedure. The question is not purely theoretical. It may determine whether a complainant may benefit from procedural rights such as the right to be heard, possibly regardless of whether she is personally affected by the procedure’s outcome. Clarifying the status of complainants is one of many issues – others including scope and timing for the exercise of the right to be heard – which the European Data Protection Board asked the European Commission to regulate in future harmonization legislation on administrative procedure under the GDPR.
On the other hand, there are many instances where miscommunication may result from vertical legal differences. Though essentially identical in name, the same principles or concepts of administrative law can be understood differently in national and Union law. Vertical comparison is useful to detect those differences and recognise, as Donner put it, that when applying such principles and concepts our ‘reading may be conditioned by some national preconception that should not apply in [Union] law’. Indeed, self-awareness of one’s own parochial biases, knowing that national and Union versions of the same notion exist, or when one or the other should be applied has concrete practical implications.
For example, the right to be heard constitutes a general principle of European administrative law which binds national authorities when enforcing Union law.It is however not entirely clear if and when it is the national or Union version of that right that should apply when national authorities enforce Union law. The scope of that right and level of protection might differ significantly depending on the version at stake. In some legal systems, the scope of the right to be heard includes not only the right to be informed or to comment upon the factual and legal grounds that will support the final decision, but also the right to receive and comment upon the draft decision that the administration is likely to adopt at the end of the administrative procedure (see, for instance, Article 122(2) of the Portuguese Code of Administrative Procedure). This is certainly not the case in Union law, where the CJEU explicitly states that the right to be heard ‘extends to all the matters of fact and of law which form the basis for the decision-making act but not the final position which the administration intends to adopt’.
This specific issue, on the variable scope of the right to be heard, seems not to have complicated national enforcement of Union law in the same way that it has complicated cooperation between national authorities under the GDPR. What has in practice proven more problematic, , is the variable meaning of the principle of the protection of legitimate expectations. The requirements for that principle to apply are often much stricter than they are in national laws (on this issue, see Weisbrot’s 2015 analysis in the Review of European Administrative Law). Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening is such a case. The case concerned the recovery of financial aid from Union funds. The Dutch Government contended that ‘in so far as recovery takes place under the rules of national law, the national principles of legal certainty and the protection of legitimate expectations may be wider in scope than the same general principles at Community level’. Put differently, the Dutch version of the principle supposedly ought to be applied. The Court of Justice took a different view. Because national authorities are required under Union legislation to recover amounts in cases of irregularities, the Court reasoned ‘the principles of legal certainty and the protection of legitimate expectations must be applied in accordance with the rules of Community law’ (emphasis added).
Babel is in the details
The Tower of Babel is a well-known story from the Old Testament. Humans attempted to build a tower so high that they could reach Heaven (and escape a new Flood) and God prevented them from doing so by making them speak different languages and thus rendering communication impossible.
The fact that, over time, the CJEU developed a set of shared principles and concepts that European administrative lawyers can resort to, means that they need not fear a biblical curse of total mutual incomprehension. Moreover, Union Treaties and secondary legislation are also sources of law that European administrative lawyers share and can communicate about. Yet even if lawyers’ vocabulary is largely shared, the fact is that the Union’s linguistic diversity is not confined to its official languages. It also resides in the plurality of rich and contested doctrinal languages of the Member States.
The risk of miscommunication and ineffective problem-solving lies less in the absence of a shared language than it does in the subtle but meaningful differences in how distinct legal cultures understand that language. The medical sciences do refer to a similar ‘Babel syndrome’ due to the absence of transnationally uniform terminology. The Babel phenomenon resides in the fine print of Union law, around the margins where no obvious interpretive consensus exists between national doctrinal traditions.
A habit of engaging in comparative law may help lawyers evade that phenomenon and the risk of overconfidence about how shared the shared language of European administrative law is. Explicit similarities may conceal unspoken differences and obscure unspoken yet fundamental disagreements.
Posted by Filipe Brito Bastos, Assistant Professor at NOVA School of Law and researcher at CEDIS.
Suggested citation : F Brito Bastos, “Fine-Print Babel”, REALaw blog available at https://wp.me/pcQ0x2-Fv