This issue marks a transition point in the life of this journal. Readers who peruse the inside cover of the journal (or our website) will notice that the editorial board has been (thoroughly) renovated. Self-questioning, self-criticism and even a penchant for self-subversion have been constitutive of the identity of the European Law Journal since its foundation. The new editorial board will contribute to keep this identity alive. I am extremely happy to report that the new board is close to complete gender balance (and hopefully will be rather soon in full gender balance). The new board is also more inclusive of the different legal, political and cultural traditions that make up the European legal mosaic. This will certainly lead to new ideas, new debates and new sections, in all cases reflecting an invariable commitment to thinking law in its economic, political, historical, social and cultural context. Never before was the reporting of the content of European law an act so pregnant of radical implications. Never before so much was at stake in Europe: socially, economically and politically. Not since the end of the Second World War was the very identity of European societies as open and cooperative, democratic and socially just societies so much challenged. If the proof of the cake is in the eating, the proof of the journal is in its contents. Both Gareth Davies and Marija Bartl break new ground on subsidiarity. Both authors focus on the structural constitution of power allocation in Europe. Separately, each piece challenges not only the existing literature, but also the practice (and discourse) of European institutions. Jointly, Davies and Bartl redefine the very terms in which the debate on subsidiarity should proceed from now onwards. Tanja Ehnert draws major theoretical and constitutional lessons from the study of what is at first sight the rather specialised if not esoteric subject of nanotechnologies in food (including nanofood). She acknowledges that European institutions produce lots of expertise, but she puts forward powerful reasons to doubt that this expertise amounts to the kind of knowledge which could justify the claim to legitimacy implicit in European practice. The point she raises goes far beyond the specific subject she studies. Nanofood may be physically tiny, but after you read the paper, you will be forced to agree that its legal implications are far from small. Fabien Terpan offers a systematic and theoretically grounded reconstruction of soft law. After the inflation (and recent devaluation) of the concept, it is high time we come to terms with what exactly soft law is and with what we mean when we characterise law as soft. Terpan puts us on a promising track. Marek Szydlo revisits one of the key affirmative action policies in European law: gender equality on company boards. He makes us rethink the legal framework and suggests some reasons why we should be careful when drawing conclusions on the matter. Finally, William Phelan invites us to revisit the very first European ‘troika’, namely the trio of founding cases of European constitutional law. Phelan's work is both a piece of legal history and a very contemporary plea for a different understanding of European law.
Nico Krisch’s new book, Beyond Constitutionalism: The Pluralist Structure of Post-National Law (BC), is a major contribution to the field of legal pluralism as applied to international legal regimes.1 In clear and accessible prose, BC develops a nuanced account of the structural features of global law from a wide range of carefully considered normative positions and empirical claims, and provides detailed case studies of pluralism in action. For readers of I·CON, I would regard it as essential reading. Given space limitations, my focus will be on the main disagreements I have with BC. Krisch stakes out complex positions, often through an “on the one hand [x], but on the other [y]” style of analysis that anticipates objections. My criticisms do not always capture the subtleties of the arguments and, for the sake of debate, are sometimes more sharply drawn than warranted. I will make three points. First, Krisch’s conclusions are heavily dependent upon a theoretical construction—a supposed dichotomy between “constitutional” and “pluralist”—that is, in fact, a false one. Second, “constitutional pluralism” is a structural feature of the national legal orders to which BC pays the most attention (European), belying the dichotomy. Third, the case studies in BC provide empirical support for an alternative view: at least in some domains, a rights-based constitutional order is being constructed on pluralist foundations. Driving much of the analysis of BC is a supposed distinction between two types—the constitutional and the pluralist—which Krisch characterizes as “competing models” (p. 226) and “true alternative[s]” (p. 71). BC sustains discussion of only one mode of constitutionalism, embodied in what he labels the “foundational” and “comprehensive” constitution. In its liberal-democratic guise, the constitution constitutes state and polity, and provides the normative underpinnings for constructing and challenging the polity’s legitimacy over time. The foundational constitution is assumed to be complete: it establishes a single “overarching legal framework” (p. 23) and “comprehensively determin[es] the structure, processes, and values” of the system (p. 53). In contrast to pluralism, constitutionalism entails “clear cut hierarchies” (p. 103), stable Grundnormen, settled “rules of recognition” (pp. 11, 72, 74), and “ultimate conflict norms” and “rules” (pp. 293, 296) whose purpose is to enable a designated authority to resolve conflicts among norms and institutions effectively. Pluralism is explicitly conceptualized in opposition to constitutionalism. Whereas constitutionalism is related to “depoliticization,” and the desire “to tame politics” through legal rules (p. 69), pluralism is about “politics” and “political deliberation” but not the “rule of law” or “rule-based processes,” (pp. 23, 69, 277). What is crucial is how Krisch applies these distinctions to the relationship between treaty-based systems and national legal orders, the central topic of the book. Krisch sums up his position as follows: Constitutionalism and pluralism are distinguished . . . by the different extent to which [each] formally link[s] the various spheres of law and politics. While pluralism regards them as separate in their foundations, global constitutionalism, properly understood, is a monist conception that integrates those spheres into one. As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds (p. 242; emphasis added).2 Thus, global constitutionalism can only find its expression in a strong form of hegemonic monism.3 The resulting model is indistinguishable from federalism. “A constitutionalist setting needs to define hierarchies between the polities,” Krisch claims, in order “to integrate them into a common whole,” a task that must include the promulgation of clear rules delineating the respective competences of all levels of governance, as well as fixing the “rules for the amendment of the overall constitution” (p. 275). I reject Krisch’s constitutionalism–pluralism dichotomy on both theoretical and empirical grounds. To get to the notion of “constitutional pluralism” one must specify what is simultaneously constitutional and pluralistic about the structure of a legal system.4 When considering the interface between international regimes and national legal orders, scholars typically identify, as the basic scaffolding of a constitution, jus cogens norms, other substantive fundamental rights, standards of procedural due process, and access to justice.5 These norms find expression in multi-lateral and regional treaties, are firmly supported by opinio juris, and overlap fundamental rights inscribed in the vast majority of national constitutions.6 What makes the system “constitutional” is an overarching normative structure:7 the code of rights that judges and other officials are under a legal duty to enforce; and a set of shared techniques that national and international judges have developed to adjudicate rights, in dialogues with one another. At the same time, the distribution of authority within this presupposed constitution is pluralistic: the system is comprised of discrete hierarchies, national and treaty-based, each of which has an autonomous claim to legitimacy. Sovereignty—the authority to enforce fundamental rights—is “decentralized,”8 not least, in that no “ultimate conflict rule” or “final authority” to resolve conflicts exists. Before turning to empirics, let me clarify the nature of the disagreement. First, to my knowledge, no one in the field would contest the basic elements of Krisch’s concept of pluralism: by definition, under conditions of pluralism, there is no “single decision-maker” applying “overarching conflict rules,” who will have the final word on many important legal questions (p. 296). Understanding legal pluralism, we would presumably agree, requires the analyst to take into account multiple vantage points at once, including the respective internal legal perspectives of actors operating in autonomous legal orders. Second, Krisch argues from a position that makes “constitutional pluralism” an oxymoron, a theoretical impossibility, whereas others in this same field have staked out a rights-based version of constitutionalism that accommodates pluralism.9 For Krisch, normative authority flows exclusively from hierarchy, rather than being grounded (my view) in the intrinsic legitimacy, binding nature, and integrating properties of fundamental rights themselves. Third, I reject Krisch’s law–politics distinction. Rights politics under conditions of pluralism are today heavily structured by law, legal discourse, and other rule-like norms and procedures, and they have steadily built new legal practices that serve to manage pluralism. As the empirics in BC show, rights politics and constitutional pluralism have been co-constitutive of one another. We have not moved “beyond constitutionalism,” rather, the age of global constitutionalism has barely begun. The false dichotomy is fully exposed when we examine the formal “architecture” of rights-based constitutionalism in Europe (ch. 4).10 For Krisch, “constitutionalism” implies a focal point of “ultimate authority” (p. 103), whereas “pluralism” accepts “conflicting claims to ultimate authority” (p. 70). When it comes to rights protection, however, many domestic constitutional orders in Europe are pluralistic. Either we have to accept that these national systems are no longer, or never were, truly constitutional, or the theoretical framework of BC must be rejected. As has been extensively documented,11 not only have conflicting authority claims between national high courts not been resolved, they have generated the kind of inter-jurisdictional, and jurisgenerative, politics that Krisch associates with pluralist orders. To illustrate, Krisch (pp. 14–17) argues that three basic strategies are available to a jurisdiction (X) when it is threatened by the lawmaking and supremacy claims of an external jurisdiction (Y), when Y seeks a change in how X takes decisions and makes law. First, X can pursue “containment,” by working to “limit the impact” of Y, in order to maximize its own autonomy and minimize disruption to standard ways of doing things. Second, X can seek to “transfer” the underlying logics of its ways to Y, thus lowering the costs of adjustment. Third, X can “break” with its established repertoire and, in effect, embrace or leverage pluralism as a means of increasing its own relevance, flexibility, and capacity to constrain Y in the future. Krisch developed the framework to analyze pluralist politics but, in fact, it neatly applies to rights politics within national orders that possess multiple, functionally differentiated high courts (the majority in Europe). Consider bids on the part of constitutional courts to “constitutionalize” adjudication in the ordinary (non-constitutional) courts, through promoting the direct effect of rights. It is important to stress that this process, which is ongoing, is analogous to the Court of Justice of the European Union’s (CJEU) move to “constitutionalize” the EU through its doctrines of supremacy and direct effect. In Western Europe, constitutionalization has gone furthest in Germany and Spain, in the form of delicate accommodations forged by inter-court conflict and dialogue. Nonetheless, the supreme courts continue to marshal significant “containment” operations,12 and their “transfer” efforts often succeed. In Italy, the Italian Court’s bid for supremacy failed: a “war of judges” ended in a settlement that, in effect, codified pluralism. Under the so-called “doctrine of the living law,” the Supreme Court (Cassazione) has de facto the “last word” on statutory interpretation and application, accepting only the “persuasive authority” of the ICC’s jurisprudence.13 In France, the Constitutional Council has no formal means of imposing its rights interpretations on the Supreme Court (Cassation) or Supreme Administrative Court.14 Each of the three high courts is autonomous in its domain, and both supreme courts have positioned themselves to enforce EU rights and the European Convention of Human Rights (ECHR), even against statute. The outcome comprises a hugely important “break” with traditional separation of powers doctrine (the prohibition of judicial review of statute), while constituting a pluralist order within the French legal system. In Central and Eastern Europe, too, many national supreme courts have refused to accept the binding interpretive authority and supremacy claims of the constitutional courts.15 The Polish courts have negotiated their own version of the Italian “living law” solution; and in the Czech Republic, the Supreme Court provoked a “war of judges” when it “openly revolted” against the Constitutional Court. In his empirical study of this topic, Garlicki (a former judge of the Polish Constitutional Court and the ECHR Court) concludes: “constitutional courts appear as weaker participants . . . and, in case of conflict, they are not always able to deliver that last word.” Indeed, for constitutional judges, a strategy of “dialogue and persuasion” has been more effective than have efforts to prevail in an “open conflict” about ultimate authority.16 The development of European rights has further consolidated rights pluralism within national orders. Today, one finds multiple sources of rights that are judicially enforceable against all conflicting infra-constitutional legal norms, including statute; there are multiple high courts that enforce these rights; and often there is no agreed upon conflict rule or procedure to settle conflicts of norms and authority. In most national legal systems, three such sources of rights—the national constitution, the EU treaties, and the ECHR—overlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. Ordinary judges may seek to limit the impact of the jurisprudence of the European courts; but they may also prefer to apply it, rather than domestic constitutional case law, in order to enhance their own authority and subvert that of constitutional courts. The German labor courts, for example, have partnered with the (CJEU) to raise German standards of rights protection in employment law, regaining the authority they had lost to German Federal Constitutional Court (GFCC), which has been steadily marginalized. Indeed, the German labor courts have invested heavily in the development of EU rights, as a means of cajoling the GFCC to change its (less-progressive) positions.17 Authority conflicts between high courts within domestic systems have long been a primary source of pluralist interactions between the CJEU and national constitutional courts (a fact Krisch largely ignores in chapter 4). To take a recent, dramatic example, in 2010, the Czech Constitutional Court declared a part of the CJEU’s ruling in Landtová to be ultra vires under Czech constitutional law, a first in the EU. The ruling was an attempt to discipline the Supreme Administrative Court, which had sent the Landtová reference to the CJEU in the first place. In response, the Supreme Administrative Court denied that it was bound by the Constitutional Court’s decision, and referred the matter to the CJEU, clearly indicating that it disagreed with the Constitutional Court on both the merits and the authority claim (the case is still pending before the CJEU). This is domestic constitutional pluralism in action, as structured by the legal enmeshment of European and national systems of rights protection. Krisch analyzes such authority conflicts as if they were primarily between a European court and a national constitutional court, thus missing an essential part of the story. With respect to the ECHR, all 47 full members of the Council of Europe have now incorporated the Convention (through constitutional provision, legislative act, or judicial decision) in a form that provides for the judicial review of state acts, including statute, under the ECHR.18 In all but two states (Ireland and the UK), judges must refuse to enforce statutes judged to be incompatible with the ECHR. The domestication of the ECHR has diffused judicial review powers with respect to rights claims to all national judges, and institutionalized constitutional pluralism at the domestic level. In Belgium, the Constitutional Court has that the ECHR but infra-constitutional which the Supreme Court to that the ECHR its autonomy the Constitutional Court. courts are in their respective domains, but neither can its will on the Krisch such a “constitutional” or In the Italian Constitutional Court a strong that Italian judges are to national law in of the ECHR and, a conflict is to the matter to the ordinary judges this while their own authority to refuse to apply a on grounds of with the In the of a which is to the of the the has no means of its own case law. In France, the and the de facto of rights is the ECHR, not the national constitution, and in and much of Eastern and Europe, new of rights were on the but the point be national rights protection in Europe today is both constitutional and pluralistic. The that Krisch to the hierarchies, conflict final or to the of his In chapter Krisch a a whose on the constitutionalism–pluralism dichotomy. the were a constitutional he claims, we would to find a European rights law with the ECHR at its (p. one finds pluralism. In with his basic Krisch by national constitutional courts to supposed claims of the CJEU or the Court as against the “constitutional (pp. In fact, such in of the constitutional pluralist constitutionalist pluralist would a constitutional court to by formally the national constitutional order to the constitutional judges to their own supremacy within their own domain, and to in the politics of pluralism, including both and with the European courts and their own national supreme courts. This is, in fact, what has While Krisch he all but ignores the of “transfer” and even when has been by the same ruling Thus, he the only in of BC is on the fact that, in this same decision, the German Court a clear “break” with establishes a strong that all German judges are to apply the Court’s jurisprudence when it is on in including when is the only to a of the fundamental in the The ruling also the constitutional Individuals can now a of German basic that or to properly take into account the European Court’s case law, an by the Constitutional have further the of the Convention at The support a about European rights politics that to be with BC. Given formal in the (the of the Court’s case law within national orders will the constitutional of the overall and the pluralism of domestic systems of rights protection. This is, in fact, what is in most BC three detailed case studies of pluralism that, in my provide strong empirical support for the of constitutional The that a pluralist constitution can be built through interactions between autonomous legal orders. The claim to the the more are the rights-based interactions between different legal orders, the more it will be that a constitutional jurisprudence of pluralism will and a legal structure to these Whereas Krisch the pluralism of European rights protection in chapter it is also clear that his discussion is also about in a as Krisch (pp. constitutional stress of such as judicial and other of What about the case studies in and of BC on the that the Council developed the on the in Krisch the of are and for and that only a are to (pp. Whereas the Council had all but rights other the various rights as well as a of national courts the for to provide with due process, including the means of challenging their on the and access to an judicial authority. The chapter with an analysis of the CJEU’s which EU to review under EU fundamental rights, and the In response, the Council an to and to make formal on for The empirics of this case provide strong support for the constitutional pluralist which the structure of rights, and for rights-based conflict into constitutional Under this the of the on “constitutional” features when to it on rights grounds before and courts. courts and the CJEU fundamental rights in both national, regional, and international law, and a style to In Krisch’s judges are the central of the pluralist which he in of the and of international and national levels of (pp. as BC the extent of pluralist to be on the of rights and other constitutional Indeed, the would state that of the CJEU, at the of and to the of a and process, to the . . . of the of the BC was for of the to as Krisch had (pp. In the Court of the EU a it would in of the within the of the the and long the by the clearly to of effective judicial The the at while as the provoked by The established by the Court neither for judicial procedure for review of decisions of the nor for a to that be available to the in order to to The also the fact that an would within the that is, an to an from the In of and under from and other the Council the of the codified procedures, and with and the of the to will now prevail there is not to it, in which case states further are if the is to be than two the of the on Human Rights and While that the Council to and had due process, that the new system still not international rights standards due or to a strategy on the part of courts long as due is not at the when or as national European courts will to judicial review over the national the ended by more if by the would make it that national or European courts to the procedure of the before their jurisdiction in to the national or European To the has resulting in decisions to the one and one (the are the Council the who had the European courts as well as national This is but the now has a The is also about The how conflict the GFCC and the over supremacy claims serve to rights-based constitutionalism in Europe, the fact that supremacy conflicts were never firmly Krisch style as a for the and norms” (pp. that are for the of rights-based pluralism within when rights are not central to pluralism, the of constitutional is how in and European to and generated in response, Krisch European courts are now with law in this the fact that the CJEU had that the do not possess direct effect within the EU such interactions may take on constitutional for now they to on grounds. as in his review of most global and standard setting in such as and is today generated through that the of and state While much of is pluralist in most of it is not constitutional in BC is the most important on the development of legal pluralism at the of not international regimes and national legal orders. Given the my focus has been on the constitutional of the book. I have three main points. First, the dichotomy is a false one. now legal systems as both constitutional and pluralistic for of empirical Second, when it comes to rights protection, most domestic constitutional orders in Europe are in fact pluralistic. As Krisch legal pluralism and authority conflicts often hand in and we find both within national constitutional orders. Third, the notion of “constitutional pluralism” the in BC than the framework from the dichotomy. The provides strong support for rights-based constitutionalism when rights in fact, on the and when courts, are major as one would we find of constitutional pluralism when rights are not in and when courts are not the main
Before the Constitutional Court of Serbia, there is a pending case on reviewing constitutionality and legality of the Autonomous Province of Vojvodina's Statute. 30 MPs, one civic organization and one individual initiated the proceedings, back in 2009, right after the Statute came into force. This article, which relies on author's amicus curiae brief in the mentioned case, offers three claims. First, the author claims that Serbia is not a typical unitary state, as for example, France or Romania, since it has gained several important characteristics of a regional state. Thus, for the time being, according to a vertical division of authority, Serbia can be defined as a state that is neither unitary nor regional, but rather a state 'in between' these two forms. Second, the author argues against an idea of textual dogmatization of the Constitution employed by the initiator of the proceedings (MPs), and after a deep analysis, rejects most of the arguments aimed at invalidating the provisions of the Statute, finding them unpersuasive and unfounded. Third, starting from the citizens' sovereignty, on which the political autonomy of Vojvodina is based (Articles 12, 176 and 182 of the Serbian Constitution of 2006), the author urges safeguarding the political decentralization guaranteed by the Constitution, since it gives more power to citizens in public decision-making and strengthens the democratic principle on which the Republic of Serbia is based. It is also stressed that a potential invalidation of the statutory provisions concerning the protection of national minorities, would endanger this protection, since, in accordance with the principle of subsidiarity, the constitutional protection is the most effective if implemented by the act of the regional authority of the territory where the members of national minorities traditionally live in a great number.
The paper discusses the importance of the subsidiarity principle to the regulation of the global processes. It also analyzes the role of the subsidiary principle as a fundamental principle of the European Union legal framework in the perception of the identity of the civilizations as well as its influence on political-legal systems. Not only does the paper emphasize the importance of this principle to the European identity, but it also discloses the role of the idea of the subsidiarity, which was played in legal and social consciousness of the communities attributed to the Western and Eastern civilizations. The principle of subsidiarity is used here as a tool to disclose the identity of the civilisations and differences among them. Simultaneously, its positive role is highlighted in the global community’s solution of different kinds of conflicts (ideological, economic, religious or cultural) that arise among nations, countries or different civilisations. This article is aimed to demonstrante that reception of the principle of subsidiarity and it‘s institutionalization in the European Union and national legal frameworks are not accidental. The tools of legislative regulation based on this principle prevent global system from disregarding cultural differences. At the same time, it does not allow local identity to destroy the world unity. Thus, unified social systems can perfectly coexist with national, regional and local units, the latter ones maintaining their organizational structure and cultural traditions. Subsidiarity idea combining opposites makes sense as a principle of creating this diversity in unity, which ensures the integrity of autonomous structures making up the whole, preserving national, regional and cultural specificities of countries and people around the globe. The support of these processes provides the public with the opportunity to discover effective forms for the realization of self-organization and implementation of their needs and developing appropriate social structures and legal institutions regulating their activity. Through the examination of the concept of subsidiarity and aspects of its practical application in organizations, the article discusses the polarities of the different structure and management forms of the institutionalization of the principle of subsidiarity in the countries and its effect in the formation of the governance levels in the state, showing how balance of powers is achieved based on the subsidiarity principle, creating an effective mechanism of function distribution (determination of exclusive competencies) and their implementation (institutional interaction, their operational control). In structuring the institutional systems of the organization of the state, the subsidiarity concept is complemented with the elements of the management system decentralization, democratization, federalism and regional and local self-governments.
The literature of the last ten years contains numerous references to two opposite trends: on one hand, “the end of administrative law,” on the other, the “new administrative law.” According to the first body of literature, which is mainly of French and Belgian origins, administrative law has lost its peculiarities (thus giving rise to the increasing difficulty in defining its status and scope); it has become a hybrid, has been destabilized and destructured, and is now in ruins. This situation is—according to this narrative—the product of various, conflicting causes: globalization, constitutionalization, destatization, privatization, decentralization. As a result of the pressures stemming from these diverse trends, administrative law is slowly losing its raison d’être—its center: the state.1 On the contrary, according to the second point of view, held mainly by German observers, a new administrative law is developing, due to a process of change, modernization, and reform. This new, or postmodern, administrative law is more open than the old administrative law, and is focused on “steering” rather than on ordering. This new administrative law is—in this view—the product of the new role of the state as a promoter, as a facilitator, as a risk regulator, and as the helmsman of economy and society. It therefore requires a new, more interdisciplinary, approach.2 Should we share the view that administrative law has reached the final stage of its life, or, on the contrary, that it is undergoing a process of intense change and renewal? What prevails now: continuity and decline, or development and modernization? Before providing an answer to these questions, I shall address the more general issue of continuity and change in administrative law. For a long time, administrative law was conceived as the domain of stability and continuity. Otto Mayer, in the introduction to the third edition of his Deutsches Verwaltungsrecht, observed that it was a common opinion of his times that “Verfassungsrecht vergeht, Verwaltungsrecht besteht” (constitutional law passes, administrative law remains).3 This conclusion was strengthened by the dogmatic approach adopted by administrative law scholarship in many European countries, where the dogmatic reinterpretation of Roman law by the German scholar Friedrich von Savigny was taken for granted and imported into the study of administrative law. For instance, in Italy, the founding father of administrative law scholarship, Vittorio Emanuele Orlando, espoused the “systematic approach” developed by Savigny and by scholars of private law. Therefore, concepts and methods possessing a high degree of stability in the field of private law became familiar to administrative law scholarship. Administrative law was founded on timeless tenets or dogmas derived from private law. Continuity in paradigms of study paralleled the idea of continuity in administrative institutions. Over the last twenty years, both assumptions have become obsolete. Administrative institutions have undergone impressive changes. Consider the accumulation of these: globalization, privatization, citizens’ participation, new global fiscal responsibilities. The very idea that administrative law concepts could remain stable over time has been abandoned. The fast-developing phenomena in administrative law have rendered the field’s cultural paradigms inadequate. New concepts and ideas have penetrated the literature: new public management, governance, accountability, expert bodies, steering. But, as continuity and change go hand in hand, it is difficult to study this mosaic of contradictions using the old approaches. The purpose of this paper is to catalog and briefly review the major changes that have occurred in Europe over the last twenty years, and to mention the resulting changes produced in the methods used to study administrative law.4 Discontinuity in the realm of administrative institutions requires discontinuity in the approaches adopted for studying the new administrative law. The scholarship examining this new administrative law needs reorientation and a new framework, capable of explaining the changes that have taken place. According to Otto Mayer, “[t]he administration is the activity of the State for the accomplishment of its ends.”5 Therefore, administrative law originated as the product of the state, but has now become dependent on other powers of transnational, global, and local dimensions. Many complex phenomena are currently unfolding: the growth of ultra-national and intra-national powers; increasing “dédoublement fonctionnel” (functional splitting), in which national governments act both as sovereign powers and as “delegates” of ultra-national bodies; the development of certain basic principles of administrative law at global, national, and local levels (e.g., in Europe, the principle of “good administration”); open statehood (“offene Staatlichkeit”) and increased communication between national legal orders, thanks to which principles may circulate (e.g., the principle of proportionality, first developed in the German legal order, was then imported in the European Union, and from there into many national legal orders); development of principles that are shared by several legal orders, at the global, national, and local levels, which therefore become universal (e.g., the right to a hearing, the duty to give reasons, judicial review), and thus provide increased opportunities for popular participation, but also produce increasing conflicts; rights are not recognized only by national constitutions, but also by global rules and imposed by these on national legal orders; national governments are subject to a contradictory trend: on one hand, their sovereignty is diminished; on the other, they acquire new tasks (e.g., control of efforts against global terrorism or global warming) that they could not possibly have gained in previous times, but that they are now obliged to share with other states (for that reason, the relevant literature contains several remarks on the state’s declining sovereignty and on the need to “bring the State back in”). The most important of these developments is the growth of a global space and a global polity. These are not only arenas in which contending forces operate, but also sets of organizations claiming control not over territories and people, but over functions.6 These developments require administrative law scholarship to be denationalized. Thus far, nationalism has been the prevailing mode through which administrative law scholarship has been conducted. But, as common core principles have developed at the national, transnational, and global levels, administrative law scholarship must give up this traditional nation-based approach. Indeed, for example, to understand the European Union, it is necessary to draw inspiration from the imperial paradigm rather than the state one. Like the empires, the Union is a compound structure. Attempts to establish a common European area of research in the field of public law are already under way.7 Representative democracy and the traditional legitimacy paradigm (featuring governing bodies vs. governed) have been exhausted. In all countries, and globally, public powers and civil societies are in search of new sources of legitimacy, and new ways of holding power accountable have been tested. National and supranational legal orders are developing in two different directions. Vertical accountability is increasingly juxtaposed to horizontal accountability (inter-institutional accountability).8 National governments respond to other national governments and to supranational institutions, and independent regulatory agencies balance ministerial bodies. Power has shifted to “technocrat–guardians” who are shielded from political influence.9 Delegation of power through elections is now flanked by participation in the decision-making process: major urban planning, environmental, and regulatory decisions require public inquiries through which individuals can make their voices heard. Popular participation and deliberative democracy complement representative democracy. These constitutional developments also affect administrative law. At the global level, administrative networking and shared administration are made necessary by increased political cooperation in intergovernmental global institutions and in hybrid global regulatory bodies. At the national level, collaboration and horizontal accountability are products of the increased fragmentation of national executives into many different agencies. To enable participation, detailed procedural regulations are necessary; therefore, administrative regulation increasingly consists of regulation of procedures (freedom grows in the interstices of procedure). As a consequence of these developments, an entirely new area of study is opened up to the scrutiny of administrative law scholarship, which, in the past, developed essentially along vertical lines. This requires renewed attention to cooperation, codecision, and reciprocal accountability, as well as to procedures, disclosure, and access to information, notice and comment, hearings, and reasoned decisions. In particular, the proceduralization of administrative law makes a new approach necessary, because administrative decisions no longer take center stage and have been replaced by procedure. Administrative law was initially established as a “special” law, separate from private law. Globalization, overburdened governments, privatization, and new public management techniques have all de-emphasized and blurred the public–private divide. Private law invades the space of public law and erodes its specificity.10 In the global polity, hybrid and private bodies are as numerous as public bodies. National governments make increasing use of private law. Contracts between the state and private persons, once almost unknown (as they challenged the very idea of state sovereignty), are now a common feature of state activity. Consequently, the state becomes dependent upon collaboration with civil society. With the emergence of the enabling state, the focus of public activity has shifted toward measures aimed at financing benefits through the market. Therefore, a large part of social welfare has become a lucrative, privatized, commercial, and for-profit activity.11 Outsourcing and public–private partnerships increase efficiency and sectionalism, which in turn contribute to the fragmentation of the state. On the contrary, private institutions increasingly apply administrative law rules (two examples are the Internet Corporation for Assigned Names and Numbers (ICANN) by-laws, which contain a sort of administrative procedure act and the World Anti-Doping Agency (WADA) regulations12). As public bodies are not necessarily subject to administrative law, so too private bodies are not necessarily subject to private law. Topics such as state-owned enterprises, public–private partnerships, public incentives to private companies, and market-oriented regulation thus become crucial for the analysis of administrative law. These developments make it necessary to abandon the public law regime paradigm, to de-publicize the approach adopted by administrative law scholarship and to study the ambiguities and the richness of the interconnections between public and private law. Between the nineteenth and the twentieth centuries, Weberian-style administration was a “machine,” with linear development and linear decision-making processes. According to this mechanical form of regulation, the executive branch was ruled from above (politicians governed bureaucrats), agencies developed according to popular demand for services as interpreted by parliaments, decision-making processes ran directly from the initiator (usually a high-level politician) to the deciding officer (again a politician), through the machinery of the executive agencies. Over the past fifty years, the picture has become more complex. Administration, politics, and society now form a triangle; there is no longer a clear dividing line between administration and society; negotiation runs side by side with command and control; as soon as new services require new structures, these new structures establish links with their institutional clients and attract new clients (both internally and externally); decision-making processes are replaced or accompanied by consultation, mediation, Parliament-like procedures, or, simply, muddling through. “The old image of a hierarchical public administration single-handedly implementing well-defined policy goals set down in legislation must today compete with a vision of the administrative process as open-ended, collaborative, and networked.”13 Administrative law scholarship must adapt its paradigms and research techniques to this new reality. It must be prepared to study administrative law less as a mechanical structure than as a market, where many intersecting negotiations take place. “To capture the new reality, comparative administrative law should be framed no longer as the rules and judicial-redress mechanisms that guarantee the effective working of administration, but rather as an accountability network through which civil servants are embedded in their liberal-democratic social orders.”14 This approach requires paying more attention to the rules of change and to a different conception of administrative law, which is to be seen not as a static set of rules and mechanisms, but as a dynamic system, capable of interacting with its environment. The executive branch, which once served the elected politicians and the state-provider of a few basic services (e.g., defense, public order, tax collection), has now become society’s largest artifact. It has also become increasingly separated from politics, becoming, rather, ever more embedded in society. The state is no longer extraneous to society, as it is not extraneous to the economy. These developments are noticeable if the size of government apparatuses is measured: a century ago, public employment occupied between one to five percent of the labor force, a figure that has risen now to between 10 and 50 percent.15 The state has become the largest employer and the most important financial intermediary. Further, it is the main actor in all major social and economic events. The emergence of the administrative state has rendered regulation pervasive. Moreover, the administrative “machine” has been able, over time, to adjust to political and societal pressures, first by expanding, then by reducing, and now by re-expanding its own dimensions. The administrative structure of government has become embedded in politics, in society, and in the economy, reproducing the main features of a corporatist state, where different branches of the executive or agencies become “captured” by their constituent interests, but still “capture” a certain degree of sectorial legitimacy from them. Therefore, while constitutional law is still organized around a center (Parliament, the government, a supreme court), administrative law has lost its center and has become fragmented and multipolar. Therefore, administration and its law cannot be understood if the administrative culture of a country and its civic values are not studied. For example, the degree of industrialization and the experience of wars and the need to maintain large armies all have a significant impact on the management of government, both in terms of diffuse managerial cultures and popular attitudes of skepticism or deference vis-à-vis the state. The next task for administrative law scholarship shall be that of bringing society and politics back into the study of the administration, analyzing the many links between society and administrative agencies, in which politics often acts as an intermediary. Traditionally, administrative law was based on the bipolarity between the “administré” and the “autorité publique.” In the last thirty years, two developments have occurred. The “administré,” subject to administrative authorities, has become a citizen, fully entitled to rights vis-à-vis the government: for example, he has a right to be informed, to make his voice heard, to receive reasoned decisions, and to have administrative decisions reviewed by independent courts. The “rights revolution” has produced many major changes in the field of administrative law, as well. Broadened suffrage, organized societies, and the fragmentation of executives have replaced bipolarity with multipolarity. Today, the administrative landscape is dominated by multipolar a of public bodies and conflicting private For example, there are numerous state and agencies in the field of private that with and The state is penetrated by conflicting private interests, which, state agencies must address (e.g., and economic also an administrative and require administrative or political far, administrative law scholarship has focused on the only as an of public orders or benefits and on the between the State and New administrative law scholarship has a new It must a view of and governing administrative not only as regulations of administrative power but as of citizens’ rights vis-à-vis administrative on agencies, to the of private It must study the in which conflicting one and and in which agencies act as and is subject to the an administrative law the law not public in their are and such as and in which the executive is from legal and once are now increasingly as to the of law and to the principle of judicial therefore, a between the executive powers and social for institutions. Moreover, there are where agencies must address complex and in a or the principle of (e.g., in and cannot be by of the executive makes to For example, it and or which are These developments open up an entirely new set of for administrative law scholarship. administrative law scholarship has on the of judicial decisions, and institutional The new scholarship has a more difficult to at institutional the of and judicial decisions. It must with and of and in to study these In the past, in the European and wars the main of changes in administrative law. the of and of wars has to an This has an impact on as they are from major change, or subject to a change that more Administrative law is more dependent upon and previous therefore, institutional is the Administrative law therefore consists of and “the approaches have not Administrative law has been a process of to societal the but their has been in the Moreover, administrative institutions and are by law in state is a The that administrative development are ideas and economic constitutional social time and according to This requires of the of of their and of their of rules and institutions are regulations which changes. The study of these complex structures first an attention to and the in which they to the different to the and it requires an analysis of the between the different to establish they and which rules and institutions As become increasingly legal become more National legal orders are no longer the and of institutions, and between are open legal space national The has become a where it is to go and sets of principles from one legal to are not only legal but also and and policy are at the in administrative law have This not that national legal orders have become and a major role in institutions and from one These developments require two major changes in administrative law scholarship. On one hand, they require it is increasingly that the law of one country cannot be fully understood if it is in Administrative law scholarship cannot to one legal Moreover, at this requires a that the study of the law as in and of law in of legal legal and and legal On the other hand, these developments require and into the picture of legal and the and impact of common ideas and principles in numerous legal In other the developments require the For example, to study the between common law and legal orders, it is necessary to the state on one hand, and on the the of the of law, and and their peculiarities and institutions and as to the state and the of developed in to the German of and its the global and the many national of “new public the of administrative and of the principle of the of and in a common judicial review of administrative the of the different national and as a result of increased communication between legal As administrative law developed first in Europe, it is also important to study the common European of the national administrative scholarship developed as a to mainly and must now more than as it should also and In the past, it was a to individuals for a of legal administrative law scholarship to its own Today, the upon it have and require new techniques of and not one Indeed, it is to state that its own of is no but rather and political of the with the important that administrative law scholarship should not be by a and of certain basic that legal Administrative law must its in the field of social and and its links with it to study the role by the State in the economy, the economic approach to is there that the economic analysis of public law can to the scholars of administrative the executive branch of government is embedded in the realm of politics, and if administration is part of politics, can the study of administrative law political can political in terms of methods and to administrative law and institutional are the in the field of administrative law. Therefore, is an of analysis for administrative law In a and open in which legal orders and become “the national of legal is a legal scholarship with the to be not national, but cannot be by the and must the idea that there is only one form of legal of law not necessarily an that a and organized system, or a must be It therefore, to of on a European on a universal
Independent regulatory bodies are important economic institutes, which take on a part of classical state affairs, which generally need particular, i.e. specialized knowledge, which does not exist in state management. European countries have different experiences when it comes to bearers of public authorization, representing intermediaries between the state on one hand, and companies and citizens on the other. In those countries with a traditionally big state apparatus, there are few agencies and vice versa, where there is a large portion of state affairs decentralized, small governments, supported by a modest central state apparatus are established. In the countries of Central and Eastern Europe, along with the process of transition, there occurred the process of "agencification". Serbia is maybe the worst example, with large coalition governments, which have established almost 200 different independent institutions. The causes of independent public body boom in Serbia are to be sought in a too liberal understanding of laws regulating this area, which has created the possibility of political feudalism. Also it has created an inappropriate autonomy of institutions (inappropriate for Serbian conditions, especially when it comes to finance), with a clear debalance of quality of employees in those bodies and the system of their compensation compared to contribution given by their work. Recent political changes, "new waves" of global economic crisis and large crisis of state financing are making boom problem solving quicker, and also are putting under control the behavior of bearers of public authorization in Serbia. However, it seems that this process still lacks good and impartial methodology and argumented atmosphere for making political decisions.
The European Court of Human Rights (ECtHR) shows increasing sensitivity to issues of nondiscrimination and―as Carmelo Danisi rightly notes in his article1―the scope of the prohibition of discrimination contained in article 14 of the European Convention of Human Rights (ECHR) has definitely been extended. Not only is the number of cases decided on the grounds (or also on the grounds) of the principle of nondiscrimination growing, but―more significantly―the class of cases based on the aforementioned provision reveals that whenever a highly controversial, delicate, or questionable issue is brought before the Court, the principle of nondiscrimination is always reserved a major role in the judicial reasoning. Undoubtedly, the ECtHR is adopting a more proactive role in the fight against any kind of discrimination, and this new attitude is in part influenced by the EU institutions and other international bodies. The survey of the European jurisprudence provided by Danisi presents a self-confident Court applying severe standards even at the cost of narrowing the margin of appreciation that the ECHR accords to member states. The only notable exception is the case of same-sex marriages. On the basis of the account offered by Danisi’s article, I would like to inquire into the reasons for the expanding role of nondiscrimination in the ECtHR’s case law. I will argue that this expansion is intertwined with the liberal ideal of protecting everybody’s right to the freedom of choice on a neutral basis. Considered in this light, the case law of the ECtHR appears to be more problematic than in the picture portrayed by Danisi. Sometimes the Court’s attitude seems inconsistent and leads to unpredictable results. However, it is more important to notice that nondiscrimination judgments intrinsically lack the neutrality that is often ascribed to them. Many good reasons account for the prominence of nondiscrimination in contemporary European jurisprudence. One of these, and not a minor one, is related to the perception that prima facie nondiscrimination is a commonly shared, non-negotiable principle because it provides a neutral ground on which to settle the most hotly debated controversies of our postmodern society: gender issues, reproductive rights, bioethical problems, the notion and role of the family, law and religion, the protection of ethnic minorities in multicultural contexts, and so on. No matter what one’s personal opinion regarding these disputes may be, the solution should not result in the discrimination of any group. In a way, when a debate touches on the point of nondiscrimination, the tone changes from a judgmental to a neutral one. Whereas controversies about rights and their limitations require difficult balance among competing values and are deeply divisive, nondiscrimination is perceived as a common, undisputed goal. A good example showing the “neutralizing effect” of nondiscrimination is S.H. v. Austria,2 a recent case regarding medically assisted procreation. The case has its origin in an aspects of Austrian legislation which limits access to techniques of artificial procreation that involve the use of ova and sperm from donors. The reasons for these restrictions―as explained by the Austrian institutions and shared by other European states―were based on public values and interests competing with the individual desire to have a child, such as the protection of the biological identity of the children, the prevention of eugenic reproduction, the exploitation of women, and the commercialization of maternity. The European Court does not enter into a discussion about the legitimacy and the justification of the limitations imposed on individual rights by the national legislation. Instead, it takes a different approach: if the right to privacy encompasses “the right of a couple to conceive a child and to make use of medically assisted procreation for that end,” it must be guaranteed without discrimination, the Court says. Therefore, following the Court’s reasoning, all restrictions on medically assisted procreation should be banned because every regulation may have the effect of denying some couples the possibility of having a baby, ultimately amounting to discrimination. The issue that was brought before the Court was a veritable conundrum and did not have any easy solution. However, no matter how disputable any alternative option would be, in this case, it was clear that the arguments based on nondiscrimination worked as a discussion stopper, thanks to its aura of neutrality. As a matter of fact, according to liberal ideals, law is to be neutral in order for all personal choices to be allowed and respected. The liberal ideal wants each person to decide for oneself what one values and how one is going to live one’s life in the light of these values; one must be entitled to a set of “deliberative freedoms,” allowing one to live following one’s personal preferences. Nondiscrimination is a prominent tool for securing these deliberative freedoms3: when nondiscrimination is respected, everybody can freely accede to one of the options at stake, regardless of color, sex, race, or preferences. Liberal ideals affirm that people should not have to factor certain traits of their identity into their deliberations. Nondiscrimination is essential to the liberal project because it urges the removal of all hindrances to free choice. Although in the past liberty and equality were considered competing values, in the current postmodern liberal society freedom of choice and nondiscrimination reinforce one another: they are the twin cornerstones of contemporary legal order. Their intimate kinship is mirrored by the frequent use, in the cases brought before the ECtHR, of article 14 of the ECHR on nondiscrimination in conjunction with article 8 on the right to privacy―the very origin of the right to free choice. The interaction between nondiscrimination and freedom of choice has the ambition of squaring the circle by protecting diversity without creating inequality: differences in reality should not matter in the legal realm because nondiscrimination aims at correcting reality.4 Seen through the lens of nondiscrimination, all differences become indifferent before the law. In this perspective, nondiscrimination has a neutralizing effect; it serves the aspiration of liberal society to neutrality.5 I would like to put to the test whether or not the principle of nondiscrimination maintains its promise of neutrality in the practice of the ECtHR by looking at the examples examined by Danisi and other scholars. In the overview of the cases I will focus solely on the issue of neutrality: I am not interested here in discussing the merits of the decisions. Whether or not I agree with the results of the decisions taken into consideration is not relevant to the purpose of the present discussion. According to Danisi’s narrative, the ECtHR is increasingly developing the principle of nondiscrimination, with the relevant exception of same-sex marriages. At first sight, all recent evolution in European jurisprudence fits into Danisi’s analysis, but on closer examination the ECtHR’s case law appears to be more “unprincipled.” It is true that in numerous recent cases discrimination is given prominent attention; however, it seems occasionally to be overshadowed by other prevalent concerns, depending on the factual situation and on a case by case basis. For example, in Opuz v. Turkey,6 a case concerning domestic violence in Turkey, the discrimination issue is intentionally brought into the spotlight by the Court. The decision condemns Turkey for violating articles 2 and 3 of the ECHR because the national authorities failed to take adequate measures to prevent an aggressor from carrying out his threats against the physical integrity and the life of the victims. The Court could have stopped there, as it happens in many cases where the violation of a plurality of rights and of articles of the Convention is alleged by the plaintiffs. In the Opuz case, however, the Court went on to examine the issue of nondiscrimination and reiterated the condemnation of Turkey also on the basis of article 14. The result of the decision in this specific case was not affected by the Court’s further statement, because the violation of the right to life and personal integrity is of paramount gravity; but the insistence on the non discrimination issue gave the Court the opportunity to draw attention to the status of women in Turkey and to the many forms of discrimination to which they are subjected. To put it bluntly: the Court wanted to make a case against the discrimination of women in that society. Let us now consider the following case dealing with discrimination on the grounds of sexual orientation. Santos Couto v. Portugal7 is a decision concerning a man convicted for homosexual relations with adolescents. Since the Portuguese criminal code has two different provisions for heterosexual and homosexual relations with adolescents, the second being more severe than the first, the applicant argued that his conviction was discriminatory and based on his sexual orientation. Notwithstanding a relevant precedent,8 in which a request similar to that filed by the applicant was granted, the ECtHR issued a finding of nonviolation. Focusing on the concrete circumstances of the case, the Court showed that the man would have been convicted even on the narrower grounds of the provision envisaged for heterosexuals. Consequently, in this case, his sexual orientation was not considered a relevant feature to be taken into account. By contrast, in Kozak v. Poland,9 as Danisi says, the European Court attached great importance to the argument of sexual orientation. Despite the unclear nature and duration of the relationship between the two partners, in the Court’s opinion “the relevant element was not the question of the applicant’s residence in the flat or the emotional, economic or other quality of his relationship with [his partner] but the homosexual nature of that relationship.” Had the Court used the same “test of resistance” that was used in the previous case―i.e., had the Court inquired whether or not in that particular case the right of succession to the tenancy would have been denied even if the applicant had been in a heterosexual relationship―the result might have been different. At the same time, in the Santos Couto case, should the Court have stressed that the Portuguese criminal code had stricter rules applying to homosexual relations with minors, the decision might have been the opposite. Not only is the nondiscrimination clause susceptible to being applied inconsistently by judges, but, in most cases, the very structure of the discrimination test as such is responsible for the unpredictable outcomes of the controversies. Nondiscrimination is one of the most valuable principles of our legal civilization, one which has significantly contributed to advancing the legal treatment of vulnerable groups and to the redressing of wrongs which occurred in the past; and yet it is not, and cannot be, a neutral principle. As a matter of fact, judging nondiscrimination implies drawing a comparison between different persons and situations. Comparing people is not a mechanical activity but requires the highlighting of a specific relevant feature which has to be taken into consideration for the comparison. The trouble with determining nondiscrimination is that no two people are alike in every respect and, at the same time, all people are alike in some respect. Consequently, statements of nondiscrimination entail comparisons of two persons by reference to some criteria that determine the relevant aspect in which those persons are alike or different. The choice of the “relevant feature of comparison” governs the outcome of the judgment. Let us return to the case of Orsus v. Croatia,10 examined by Danisi, regarding Roma students who complained about being assigned to separate classes.11 Were they assigned to special classes because they lacked a sufficient command of Croatian, as the First Section decided in its judgment of July 17, 2008?12 Or were they victims of racial discrimination, as the Grand Chamber eventually decided? The choice of the comparator determined the results of the two decisions. Who are the “like” students to be compared with in this case? If the linguistic skills were the relevant feature to be taken into account, then the result would be a finding of nonviolation; if, instead, the question of race were to prevail in the analysis, then the Court would reach the opposite result. The hazy character of nondiscrimination judgments is particularly salient in cases concerning the status of the family, same-sex couples, and other types of relationship, which have frequently been brought to the attention of courts in recent years.13 Most of them involve homosexual couples claiming the same rights and privileges as those accorded to married couples. According to Schalk and Kopf v. Austria,14 European states are not obliged to extend marriage license to same-sex couples, since article 12 of the ECHR provides men and women with the right to marry and to found a family. Nevertheless, the Court says that the notion of “family life” under article 8 applies to same-sex and other de facto unions. Consequently, different forms of protection are considered consistent with the European Convention. In many European countries, but not in all of them, registered partnerships have gradually extended to same-sex couples a certain number of benefits and privileges that used to be limited to married couples. Differences between marriage and union partnership can be acceptable, says the Court, especially as far as parental rights are concerned. Moreover, at the opposite ends of the spectrum, some countries recognize same-sex marriage while others envisage neither marriage nor legal partnership for same-sex couples. Is this diversity in the domain of family life a matter of nondiscrimination, or does it have to do with the difference in values that each society attaches to marriage and family ties? The ambivalence of these controversies is made clear by an awkward request brought before the Court in the case of Burden v. United Kingdom.15 Two aged sisters, having lived together their whole life, claimed the same inheritance tax exemptions as married and civil partnership couples. They asserted to be in an analogous position to married couples or civil union partners, and affirmed that the different, unfavorable treatment applied to their situation was discriminatory. The ECtHR, of course, rejected their request. What is interesting for the purpose of our discussion is the Court’s reasoning. The Fourth Section16 justified tax exemption and its scope by evoking the peculiar value that societies attach to marriage and which, in many cases, they extend to civil partnerships: national legislation can legitimately limit fiscal benefits to the relationships most valued in that society. The Grand Chamber, on the other hand, focused on the analogy and differences between two siblings cohabiting for many years and married or union registered couples. The outcome was the same, but, in my view, the legal arguments in the reasoning of the Grand Chamber were weaker and ultimately concealed the real question under debate, namely the interests pursued by the legislature by means of the fiscal policy. It is not difficult to foresee that the Court will be called on again very soon to take sides with respect to different attitudes adopted by national legislatures towards family life, and the question to ask is whether nondiscrimination is the only appropriate grounds on which to settle these disputes. The trouble is that in these cases nondiscrimination is no more neutral than rights-oriented arguments, and it might end up concealing the value choices made. The principle of nondiscrimination proves to be a flexible and fluid benchmark whose shape derives, as we have seen in this quick overview, from the rights at stake and the class of the rights holders involved, the factual circumstances of the case, and the social and political background. In many cases discrimination assessments involve value choices to no lesser extent than any other decision concerning the scope, content, and limitations of rights. If this is true, some consequences should be taken into account by the Court. These include: (a) The burden of proof: a widespread bias about nondiscrimination was pointed out years ago by Isaiah Berlin: “the assumption is that uniformity, regularity, similarity, symmetry … need not be specially accounted for, whereas differences, unsystematic behavior, change in conduct, need explanation and as a rule, justification.”17 In legal terms, this bias translates into a general presumption in favor of equal treatment: whenever a difference in treatment is to be applied, the burden of proof shifts onto the advocates of the difference―in the cases before the ECtHR, usually onto the defendant government. This presumption, and the consequent shift in the burden of proof, must be questioned if we agree that the weight of the nondiscrimination argument needs to be modulated according to the rights and the rights holders involved in each particular case. (b) The margin of appreciation: as Danisi points out, the expansion of nondiscrimination issues has the effect of constraining the margin of appreciation of Member States to the point of rendering it meaningless. However, nondiscrimination does not necessarily imply uniformity of national legislation, as other experiences demonstrate. It can be plainly said in relation to the system of the European Convention that “the default value is autonomy of political and moral identity [of its members] which requires justification only if purposely abused.”18 This is true in all cases, and the margin of appreciation is not necessarily to be ruled out when nondiscrimination comes into play.
EU administrative law has some specific characters when compared with national administrative law. This is particularly so because of the weak democratic legitimacy of EU rules. EU administrative law however shares a number of developments with national legal orders, such as a general trend to strengthen the judicial review of individual measures, and this especially so when fundamental rights are at stake. When compared with some national legal orders, dialogue seems to be still in an early phase. This is a shame because the political circle linking the decision makers to the People through representative democracy is weak and benefits could had by supplementing it by more closely involving the civil society and the stakeholders. The little in terms of developments we have, however, is enough to confirm the role of law and courts in this different perspective as the tools «to police conditions of access to decision-making networks. A powerful incentive to dialogue for European institutions could however come – in sectors like competition policy – from a possible shift from a French administrative law presumption of legality pattern to a US adversarial adjudication model, the latter substantially imposing on EU institution a burden of proof where before was a duty to give reasons. Taken down from the high throne where traditional continental administrative law has placed it, it makes sense for the Commission to double its efforts to come at some sort of agreements with the undertaking concerned.
Some authors divide the approach of the autonomy into four categories: a group comparesthe autonomy with the right to act discretionary in some circumstances. The right is, in this case possessed by anindividual or by administrative organization. Others use the term as a synonym for independence. According to athird position autonomy is synonymous with decentralization, and a fourth opinion specifies that autonomousentities are those which have exclusive powers: legislative, administrative and judicial proceedings in specificareas. The latter is called political autonomy and it is the opposite of administrative autonomy, which is limitedto the power within the scope of the government. The hereby project seeks to answer to several questions suchas: What are the specific elements of administrative autonomy, and what are its benefits? What elements of theinstitutes declared autonomous allowed demonstrating their independence? What factors contribute to the brakedown of the existence of the concept administrative autonomy? What factors have slowed down the process ofself-governance and the decision within a certain area? What types of interest groups may affect thedevelopment of such a concept?
This article concerns the ascertainment by judges of normative facts that emanate from within foreign legal orders and must be taken into consideration in the interpretation of domestic rules. The author proposes an analytical approach which is based on three ideas. First, judges must remain in control of the process aimed at ascertaining such facts. Because the interpretation of domestic rules is at stake, they cannot remain passive and rule solely on the basis of the information adduced by the parties, as they normally do while ascertaining the contents of foreign rules under a classic conflict of laws scenario. Second, foreign normative facts are often reasonably disputable, and when that is the case the parties must be afforded the opportunity to comment on whatever information the court intends to rely on while ascertaining the contents of such facts. Finally, the assistance of experts may be necessary in some cases, but full-fledged party-appointed expert testimony will rarely be a cost-effective option. Judges and parties should consider alternative options, such as the testimony of a court-appointed expert or written statements provided by party-appointed experts.