A. From direct and indirect administration to administrative cooperation

The EU relies on the Member States’ public administration for the administrative implementation and enforcement of EU law (Article 291(1) and Article 197(1) TFEU). However, the EU institutions also play a role when justified by the interests of the EU and the application of the principles of subsidiarity and proportionality (Article 291(2) TFEU). The organization of the “European Administrative Union” is thus based on a multi-level structure. One can classically distinguish between: (i) direct implementation of EU law, carried out by the EU’s own administrative bodies; and (ii) indirect implementation, when the administrative authorities of the Member States are instead entrusted to implement EU law. Beyond this dichotomy procedures emerge in which both national and EU administrations participate jointly.

The aim of this concluding piece is to tease out some of the trends that the book “Administrative Cooperation in the European Space” has identified in relation to  cooperation tools used in the field of European administrative law, touching on the sources of administrative cooperation (B), the mechanisms of cooperation (C), the actors involved in these mechanisms (D), and the principles governing them (E). Finally (F), some thoughts are provided on the future perspectives and challenges relating to administrative cooperation in the European Union.

B. The sources of administrative cooperation

The existence of cooperation duties was found in the policy areas covered in the book “Administrative Cooperation in the European Space”, although with different levels of intensity. Interestingly, there is no obvious connection between the scope of the cooperation duties and the type of policy area or the fact that an area is of exclusive competence of the EU or shared with the Member States.

The cornerstone of administrative cooperation is the principle of sincere cooperation (Article 4(3) TEU). In some of the policy areas, the principle of mutual recognition and its corollary of mutual trust also play an important role – especially in horizontal cooperation. This is the case, for example, of administrative cooperation in criminal law enforcement.

Besides, one can find specific provisions providing for duties to cooperate in legal frameworks set out in secondary EU law – both in directives and regulations. In some cases, there is also an international law framework at play – that is the case, for instance, in tax policy or climate change. Soft law sources also play an important role in several of the policy areas covered, as in the tax policy area.

C. The mechanisms of administrative cooperation

Although the task is fraught with difficulties, several chapters contribute to drawing a typology of mechanisms of administrative cooperation. A distinction may be drawn between mandatory and voluntary cooperation, such as the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), in environmental policy. One can also differentiate between formal cooperation, such as the Joint Supervisory Teams, composed of both ECB and national competent authorities staff members, and the possibility of informal cooperation, for instance, the SOLVIT mechanism, which handles complaints from citizens or businesses of one Member State concerning the application of EU law by a public authority of another Member State.

The mechanisms of cooperation may also be categorized as institutional (a body or entity is created, for instance the creation of networks, such as in the case of competition law, or the Europol or the European Public Prosecutor Office (EPPO)) or procedural (when a specific administrative process is established, for example, the consultation stage of the environmental impact assessment procedure).

Similarly, administrative cooperation mechanisms can be categorised as vertical (with the presence of the EU and national administrative level, for example, in respect of the shared management of EU funds) or horizontal (for example, in the field of tax policy through mechanisms of exchange of information).

Cooperation mechanisms may also be categorised according to the activity. First, duties of exchange of information and of notification, especially prominent in tax procedures or data protection. Alert mechanisms can be associated with the duties of exchange of information, characterised by a certain degree of urgency and, more importantly, by the existence of a potential safety or health risk, for instance in the areas of environment or risk regulation. Another mechanism of cooperation is the duty to consult different Member States and/or EU institutions or bodies, namely in the environmental policy area.

Finally, a common example of cooperation is the establishment of duties of mutual assistance, such as a duty to act according to a request made by the authorities of another Member State or the Commission.

D. The actors of administrative cooperation

With regard to the actors involved in the administrative cooperation process within the European Union, the contributions show a wide diversity, although administrative authorities, courts and individuals represent a constant “triangle” which is present across all policy fields.

First, administrative authorities understandably play a central role in administrative cooperation mechanisms. However, this category is not homogeneous, and several types of administrative authorities can be distinguished. In addition, in certain fields, such as criminal matters or defense, administrative authorities have specific characteristics due to their areas of action.

A first distinction can be made according to the legal system to which these authorities belong. The administrative authorities involved in cooperation mainly are authorities either from a Member State or from the European legal system but, in some policy also international players, such as the World Custom Organisation (in the customs policy area) or the Council of Europe (in tax matters, for example). In addition, the administrative authorities of third countries are regularly involved, such as candidate countries, or those belonging to the EEA or EFTA.

Another distinction can be drawn between administrative authorities with general competence and specialised administrative authorities. For example, each Member State is to provide one or more independent authorities responsible for monitoring the application of the GDPR.

At European level, the trend towards specialisation may also be shown by the creation of agencies. Indeed, European agencies are largely involved in the implementation and enforcement of EU law (as in the case for FRONTEX, the European Defence Agency, the European Securities and Markets Authority or the European Food Safety Authority). In addition, European networks are also important actors in administrative cooperation. An emblematic and long-standing network is the European Network of Competition Authorities (ECN).

Courts are another player who cannot be ignored in the context of administrative cooperation is the courts. While their role is to intervene after cooperation mechanisms have been implemented, they remain essential to ensuring the legality of acts and actions resulting from administrative cooperation. In the multi-level system set up by EU law, both courts of the Union and the national courts are involved.

Although the central players in administrative cooperation mechanisms remain the administrative authorities, individuals are the object and the very raison d’être of the relationships established within the framework of administrative cooperation. The individuals involved do not, however, constitute a homogeneous category. Traditionally, in the field of Union law, economic operators have played an important role but also taxpayers, migrants, consumers, or persons involved in criminal proceedings.

E. The principles structuring administrative cooperation within the European Union

To implement Union norms, the arrangements for administrative cooperation must comply with the fundamental principles of Union law.

Firstly, the mentioned principle of sincere cooperation (Article 4(3) TEU), which is the source of obligations imposed on national administrative authorities and European authorities, both vertically and horizontally.

Secondly, the principle of mutual recognition, a central principle of the EU internal market, is widely used in the various sectors. Indeed, one of the effects of administrative cooperation is the adoption of acts, whatever their classification and their circulation.

Other principles aim at guaranteeing the fundamental rights of individuals who are involved in the relations established within the framework of administrative cooperation mechanisms. First, the principle of good administration plays an important role, providing a common procedural framework for acts and actions carried out in the context of administrative cooperation (Article 41 of the Charter of Fundamental Rights). The existence of the principle of good administration makes it possible to establish a common reference for administrations in the European administrative area. This does not entail uniformity of administrative procedures within the European Union. The principle of good administration tends to limit its scope, by encouraging convergence of procedural standards. The existence of a certain degree of diversity can create difficulties, especially in areas where a double set of standards may be applicable, as in banking matters.

Finally, the right to an effective remedy (Article 47 of the Charter) also plays a central role. In this context, the judicial control of acts resulting from administrative cooperation processes may be challenging because of the composite nature of the decision-making process. The first problem is to identify which court has jurisdiction to review an administrative act: this question is resolved by reference to the principle of territoriality of administrative law. At the same time, in the context of the implementation of Union law, any solution devised with a view to reviewing administrative acts resulting from co-administration processes must respect the principle of effective judicial protection. The latter has had opportunity to intervene in several policy areas covered in this edited collection, such as tax matters, banking sector or EU funds. However, in this respect, important questions remain.

It is finally noteworthy that, in addition to the courts, other forms of control of administrative cooperation, such as the Court of Auditors, the Ombudsman or the Data Protection Officer, co-exist.

F. Perspectives and challenges

Administrative cooperation is a key element in the organisation and development of the European administrative area. While indirect administration continues to exist, co-administration has become increasingly more present, creating a horizontal and vertical web of relations involving different legal orders even beyond the EU itself. This web can be characterised as a manifestation of both regulatory diversity and regulatory complexity.

On the one hand, administrative cooperation processes are diverse and can leave more or less room to national regulatory choices. These depend on the content of EU secondary legislation, the degree of precision of the obligations formulated therein, the room for manoeuvre left to national authorities, and the place given to fundamental principles of the Union, such as the principle of mutual recognition. The use of administrative cooperation and the definition of its procedures are thus primarily the product of political choices. As the various analyses have shown, one characteristic of administrative cooperation is its flexibility and adaptability.

On the other hand, these characteristics may also be regarded as increasing the complexity of the organisation of the European administrative area, and that of the European Union more generally. Such complexity may create difficulties not only for the national administrations, but also for citizens. Sometimes it may be hard to understand which authority is competent. Admittedly, it can be argued that these mechanisms are often developed to respond to already existing transnational issues and to provide solutions to remove obstacles generated by the crossing of borders. However, regulatory complexity of the decision-making process, may slide into regulatory “opacity”, which might eventually undermine the legitimacy of the solutions which these mechanisms are meant to provide.

While the contributions have shown that administrative cooperation patterns are present in virtually all EU policy fields, the legal-doctrinal nature of our investigation has not allowed us to tackle the important questions of the practical operation and effectiveness of administrative cooperation within the European Union. Administrative cooperation can be seen as a way of strengthening the effectiveness of the enforcement of Union law, including in areas that are not characterised by supranationality. Further empirical work should seek to uncover which mechanisms of administrative cooperation seem to be better suited to foster effective implementation and enforcement of EU law, as well as the extent to which the operation of these mechanisms provides for effective judicial control and overall respect for the rule of law.

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Posted by Emilie Chevalier (Limoges), Mariolina Eliantonio (Maastricht) and Rui T. Lanceiro (Lisbon).