European integration has brought about a multifaceted transformation of administrative law. One of its major aspects is the development of what is referred to as “European administrative law”, which is traditionally understood, in a narrow sense, as the “administrative side” of European Union law, but also, in a broader sense, as a “composite object”, which also encompasses the administrative laws of the Member States.
The very idea of European administrative law thus conveys several subversive ideas from the perspective of conventional administrative law theory. Can administrative law, which is traditionally confined to the sphere of the state, be observed beyond it, namely within the realm of international organisations? By rising to the level of international and European law, can administrative law influence European national laws in return and unify them under the banner of a “common European administrative law”?
By adopting an approach that combines an analysis of legal scholarship with the history of contemporary law in France and Germany, the forthcoming book La systématisation du droit administratif européen (Dalloz, 2026) aims to demonstrate how European administrative law and its theory gradually developed into an organized, coherent and specific system, grounded in fundamental categories and principles. By doing so, the study fills gaps in legal scholarship concerning the history of European administrative law theory in France and Germany thanks to analysing its evolution through the various stages of the process of European integration. It also identifies the significant and sometimes overlooked contributions of French legal scholarship, as well as those of German legal scholarship, which has traditionally been at the forefront of European administrative law studies.
The genealogy of European administrative Law
Many studies trace the origins of the theory of European administrative law to the 1980s, drawing on the seminal work of Jürgen Schwarze and more particularly the publication of his Europäisches Verwaltungsrecht (Nomos, 1988). However, the theory of European administrative law took shape well before the publication of this work, namely at the dawn of the European integration process. From the moment the Treaties of Rome and Paris were signed, certain elements of European Community law were identified as comprising a genuine body of administrative law. The model of the administrative law of international organisations, also known as ‘international administrative law’, played a decisive role at the time: in the very early stages of the European Integration, European Communities were initially regarded as international organisations of an essentially administrative nature ; the treaties were also often presented as ‘treaty-laws’ whose implementation involved the use of administrative instruments by the Community authorities. These ideas are particularly evident in the lectures Claude-Albert Colliard delivered on “European Administrative Law” at the University of Paris in the 1960s for example, the subject matter of which today corresponds to institutional law of the European Union.
In these early decades of European integration, numerous other works drew on the theory of European administrative law to analyze more specifically the rules governing Community acts, which were considered as administrative acts. Certain studies of the renowned French administrative law scholar André de Laubadère are characteristic of this approach (see for example: “Les actes administratifs”, in Zehn Jahre Rechtsprechung des Gerichtshofs der Europäischen Gemeinschaften, Carl Heymanns Verlag, 1965), but it is also occasionally found in German legal scholarship. This approach was largely fueled by the influence exerted by national administrative laws during the drafting of the Treaties: the typology of Community acts (decisions, directives and regulations) and their legal regime – particularly in relation to litigation – are directly inspired by the rules governing national administrative acts. The alignment with national administrative law was also strongly reinforced by the practice of the Court of Justice which, at the initiative of the first Advocates General Maurice Lagrange and Karl Roemer, regularly drew on national administrative laws to interpret the Treaties and develop general principles of law. This latter practice led Hans-Peter Ipsen for example to identify certain “principles of administrative law” in his seminal textbook Europäisches Gemeinschaftsrecht (Mohr Siebeck, 1972).
From the 1980s onwards, German legal scholarship specialized in European Law played a decisive role in the evolution of administrative law theory by prompting an expansion of its scope and changes in its structure. Driven by a desire to play an active role in European integration and influenced by the historical development of general German administrative law within a federal context, certain German legal scholars explored, with a forward-looking perspective, the question of harmonizing national administrative laws. They actively participated in the doctrinal project aimed at identifying common administrative principles in national laws through a comparative approach, which were to form the basis of a “common European administrative law”. Jürgen Schwarze’s classic work Europäisches Verwaltungsrecht is emblematic of this desire to build on the studies of the early decades, which focused on Community law, by combining them with a comparative approach.
From the 1990s onwards, the growing influence of EU Law on national administrative law led to a new shift in the theory of European administrative law. National administrative law systems were caught up in a “European turn” that fueled the development of what some called an “administrative law open to Europe”. Both in terms of positive law and legal scholarship, the growing emphasis on the reconciliation of EU Law and national administrative laws progressively supplants the conflict-oriented approach that sometimes characterized the relationship between the bodies of Law. The theory of European administrative law established itself as the framework for this new relationship between administrative Laws. In Germany, studies devoted to European administrative law – which is conceived as a body of Law evolving at both the European and national levels – have become widespread (“Deutsches und europäisches Verwaltungsrecht – wechselseitige Einwirkungen”, VVDStRl., 1994). This is also the case in France, albeit slightly later, driven most notably by Jean-Bernard Auby and Jacqueline Dutheil de la Rochère (Droit administratif européen, Bruylant, 2007). This period marks the institutionalization of the new discipline of European administrative law and paved the way for its “structuring”.
The structuring of European Administrative Law
Since the Maastricht Treaty, and even more so since the Lisbon Treaty, the maturation of Community institutional law and the new foothold gained by the theory of European administrative law within the academic field fueled a process of structuring European administrative law as well as its theory.
This process is reflected first and foremost in the analysis of the European administration, which had remained, since the eighties, overshadowed by studies focusing to the general principles of law and the Europeanisation of national administrative laws. In particular, it gave rise to the development of a genuine theory of the Union’s administrative acts. Drawing on a particular conception of the separation of powers adapted to the European institutional environment, the EU administrative acts are defined in relation to the executive power. Its main points of reference are better defined thanks to the formal recognition of legislative and non-legislative acts in EU primary law. The EU’s administrative action was thus revealed in all its sophistication through the development of typologies of administrative acts that may be adopted by both the institutions and the various bodies and agencies of the Union: legal scholarship identified not only individual decisions of an administrative nature, but also acts of general application of a regulatory nature and even EU administrative contracts. By incorporating certain atypical acts into the family of administrative acts, the theory of EU administrative acts also began to address the difficulties characteristic of soft law acts, in the same way as theories of national administrative law.
The analysis of European administration also led to a better understanding of the organization of the EU’s administration. It became generally accepted that, in accordance with the model of “executive federalism”, Member States not only have a primary responsibility for the administrative implementation of EU Law, but also have legal priority in doing so by virtue of their own powers. Furthermore, administrative cooperation, which became increasingly important in European policies, began to take on a central role in the theory of European administrative law. Under the banner of the concept of co-administration, legal scholarship undertakes to analyze the multiple forms of interwoven supranational and national administrative activities. European administrative activity thus appears as a dynamic, inter-administrative process of law-making and law implementation. These developments mark the maturation of the theory of European administrative law, which not only breaks free from traditional conceptions of administration inherited from national traditions, but also takes a leading role in reflections on contemporary administrative issues. The theories of the “composite administration” (Verwaltungsverbund), of the administrative space or European administrative governance all aim to account for the complexity of European administrative action.
Secondly, the structuring process is reflected in the analysis of the coordination of the various components of European administrative law. The theory of European administrative law is faced with a particular challenge: unlike the national systems of administrative law, European administrative law is not confined to a single legal order governed by a supreme norm that dictates the organization of the rules comprising it ; it forms a “polycentric” body of law, comprising the administrative law of the European Union (EU administrative Law) and national administrative laws, the interrelation of which remains dependent on the combination of the specific requirements of different legal orders. On the one hand, national courts set the supremacy of the constitution against the primacy of EU law and, in certain circumstances, claim the right to set aside the application of the latter within the domestic legal order. On the other hand, European administrative laws must contend with the growing influence of international law in defining the legal framework for European administrative action.
In this context, the European administrative law theory progressively moved away from the concepts of the unification and absolute hierarchy of European administrative laws. European administrative law appears instead to be governed by a principle of “coherence”, which allows for a certain degree of diversity regarding its components. The flexible coordination mechanisms employed by European judges – such as the use of interpretation in conformity with EU or national law or the different forms of equivalence – appear to be the key instruments shaping the relationship between European administrative laws and the preliminary ruling is considered as the essential procedure for ensuring their coherence. The concept of coherence even plays a decisive role in transforming the project to codify European administrative law, which is now tending towards a project aimed more at the coherence of the European administrative codes, where they exist.
The historical development of European administrative law and its theory thus bears witness to the adaptability of the science of administrative law, which has successfully reinvented itself to account for legal phenomena evolving both outside the state and at the intersection of legal systems. Starting off from models of international administrative law and domestic administrative law, European administrative law has gradually become rooted in fundamental concepts and principles that reflect the specific characteristics of the European environment. Despite certain initial differences, the study of European administrative law has progressively managed to bring together a transnational community of legal scholars whose work is broadly coordinated. Following a process of maturation, the theory of European administrative law even appears now to be at the forefront of contemporary thinking on administrative law, given that European administrative action is a field in which the difficulties arising from the emergence of new forms of administrative action are particularly challenging.
Posted by Alex Micheau (Maître de conférences en droit public – Sciences Po Bordeaux)