3 - EU administrative law: foundations

Summary

1 Introduction

The previous chapters considered UK administrative law, its foundations and the challenges it faces. It is readily apparent from this discussion that the challenges included the impact of EU law on domestic precepts of constitutional and administrative law. The focus in this chapter and that which follows switches to EU administrative law, the foundations of which are considered in this chapter, and the challenges faced by it in the chapter that follows.

The discussion begins with the formal foundation of EU administrative law. This was less controversial than in the UK, since the European Coal and Steel Community (ECSC) Treaty, from its very inception, contained provisions authorizing judicial review, which were taken over in amended form into the Rome Treaty that established the European Economic Community. There was nonetheless much judicial creativity required to transform this formal foundation into a body of doctrine with precepts of administrative law analogous to those found in the Member States. The development of general principles of law was central in this respect. While much has been written about such principles the story concerning their evolution as precepts of administrative law has not been fully revealed and is told in the section that follows.

The focus then turns to the substantive foundations of EU administrative law, and the way in which the rule of law has informed development of doctrine in this area. There is analysis of the nature of the political order in the emergent Community in the 1960s and 1970s, since this is essential in order to understand the imperatives underlying the development of EU administrative law. This is followed by examination of the more particular ways in which the rule of law informed doctrinal development in this area. There is analysis of judicial review in terms of its availability, its targeting, the grounds of such review, and access. The objective is not to provide detailed analysis of the grounds of review, which would require a book in itself. It is rather to consider how these were elaborated, drawing analogies with the development of principles of judicial review in the UK set out in the first chapter.