RICERCA ITALIANA     

Research program

THE RELATIONSHIP BETWEEN EUROPEAN ADMINISTRATIVE LAW AND GLOBAL ADMINISTRATIVE LAW

University Co-ordinator

Università degli Studi della TUSCIA - SCIENZE GIURIDICHE - ()

Research Unit Leader

Stefano Battini

Description

1. The research aims to discuss problems related to the participation of the European Union to global regulatory systems.
The European Union (EU), as you know, is part of several global systems, considering, for example, participation in the World Trade Organization (WTO), the International Olive Oil Council, the Food and Agriculture Organization, the Codex Alimentarius Commission. Participation involves both bodies of government and many technical offices and units of organizations themselves.
We want to consider three main issues related to this partecipation.
2. The first order of problems is the need to identify a balance between the interest of the Community and Member States which are also parts of the organization.
The question has two distinct aspects.
It is, first, to define the respective competences of the Union and the States within the organization. The matter is governed by a series of acts of the Community and has also been some rulings of the Court of Justice. One of the most common solutions is the identification of areas of exclusive, respectively, of Ue and Member States and of joint sphere of competence: an interesting example of this solution is in Annex II to the Council Decision of 17 November 2003 (2003/822/EC) on the accession of the European Community to the Codex Alimentarius Commission. In general, this determination is an explication and an indication of the provisions of the Treaty with regard to matters within the competence of the international issue. The survey may be usefully added, identifying other defined mechanisms for the coordination by the Community of member States’s actions in the international arena, in cases where the Union is not part of international organizations. An important example is provided by Regulation 1592/2002/Ec which identifies among the tasks of the European Aviation Safety Agency that supports, assists and replaces Member States on obligations to them arising from accession to the Convention of Chicago. Other interesting ideas derived from the discipline of the European Environment Agency.
The second aspect is about the formation of the Community’s role inside the multinational organization. Again, an interesting example is in the Attachment No. III of that Council decision 2003/822/Ec. It, in fact, contains a detailed coordination procedures for the preparation of meetings and interventions related to the Community of the Codex Alimentarius Commission and of the right to vote.
These two profiles are called expression of essentially internal problems with the acquis communitaire and relationships between its various components in order of external relations that the system itself is empowered to entertain.
The investigation of these aspects can apply the usual tools of legal (and therefore primarily for reconnaissance and analysis of documents of various kinds in the relevant field), but can be usefully supplemented by a kind of investigation made to verify, with the consideration of significant cases, the main problems implementing the regulations indicated.

3. A second set of issues relates to the role assigned to private individuals in foreign and commercial policy decisions adopted by the EU, especially within the international organizations.
These problems will be examined from the Trade Barriers Regulation discipline.
The reduction or elimination of tariffs, imposed or encouraged by the WTO, opens to European companies the international markets. At the same time, however, sets the rules and decisions of the various foreign authorities, which in these markets exert its jurisdiction.
The rules of the WTO, however, protect European companies also limiting foreign regulation: prevent it pursues disguised protectionist purposes; prevent that it impose unnecessary economic barriers to their freedom; impose the principles of transparency, due process , motivation, judicial review, in other words, an global administrative law to its exercise.
This global administrative law, however, does not confer rights to European firms, but only in tribute to traditional affairs, to the EU and its Member States. European companies have an interest to induce the European authorities to act in the WTO in order to obtain from other States respect of global administrative law.
This interest is recognized by national law, which also establishes appropriate regulatory instruments through which it can be satisfied. The most important of these tools is probably discipline c.d. Trade Barriers Regulation, contained in Regulation No 3286/94 of 22 December 1994, and subsequent amendments.
Under this framework, European companies and their associations may complain to the European Commission any violations of WTO rules, committed by third countries, which adversely affect them. Based on the complaint, the Commission may, if it considers that there is sufficient evidence and that it is in the Community, can open an examination procedure Community, during which may intervene stakeholders as well as representatives of the State whose acts or conduct are subject to challenge in the complaint. At the end, the Commission may close the proceedings, if you find that you do not need to take action in the Community, or, conversely, if it considers that the Community interest requires such action, took the appropriate decisions to be submitted to special Committee, including may be to require the establishment of a WTO panel.
The proposed research consists of an analytical part and part reconstructive.
The analysis will be subject to discipline not only legislation, which now exists a significant literature, but especially where it has found so far are implemented. They will be examined and discussed through the reports submitted by the Commission to TBR Committee, which reconstruct the procedure followed and the reasons for the decision taken at the end of it.
As indicated above, this survey should make it possible to develop some critical thinking, investing the more general issue of the role allocated to individuals in foreign and commercial policy decisions adopted by the EU, especially within the international organizations.
The appearance of greater interest seems to be the following. The European administrative law operates as a "transmission belt" of guarantees according to global administrative law. The rules by which the WTO defends economic freedom compared to the power of Member States take, for European companies, a different meaning depending on the attitude of European administrative law. In theory, this could set the decision to act in the WTO context against violations of administrative law as an expression of global political power of the Commission. European companies could not, in this case, assert any legal claim. In contrast, the European administrative law could provide a duty of the Commission to challenge at the WTO level measures of foreign governments denounced by European firms, which in this case would be recognized, through the European administrative law, the right to invoke the respect of the global judge.
Specifically, the European administrative law follows an intermediate solution. It confers upon the European authorities the discretion to act in the WTO arena against measures that violate the global administrative law. This is a power governed by European administrative rules and procedures that allows to European companies to influence on its exercise. Through European administrative law, European companies can achieve compliance with the global administrative law.
The consequence is significant. The management of foreign and trade policies, traditionally taken by the administrative law to allow free hand to diplomatic executive, is subjected to a penetrating discipline, which ensures the participation of private and provides control of the judge about respect it. The decisions which the EU participates in international organizations such as the WTO are, in turn, taken with the participation of the private sector.

4. A third order of problems concerns the implications of the participation of the European Union to global regulatory systems on the European administrative system.
The latter, here understood as administrative system, composed of bodies of the European Union, national administrations and offices mixed, is called in a growing number of cases to work for the care of interests and rights recognized and guaranteed by the global law.
The survey intends to rebuild the scope of the phenomenon and try an initial assessment of the effects of this process on the European administrative system.
The effects will be assessed in relation to two sets of questions relating respectively to adjust of national public administration to European and global regulatory systems and the participation of national public administrations to European and global "common systems".
First of all, the research unit will try to answer questions arising from the study of relationship between the administrative level and global level. Therefore, at the first place, will be the reconstruction plan on participatory and organizational relations and interference between the European and global economy. Only then will analyze the results obtained. In particular, we will try to reconstruct the actions through which it has been the objective pursued the adaptation of European regulators global systems involving the European Union. In terms of organization, the European offices were equipped in such a way as to allow them more effective participation in the process of formation and implementation of global decisions? The execution of tasks related to the formation and implementation of global law has required the establishment of new administrations? And what are the most frequently used? Participation in the European Union and various global regulatory systems also led to a change in the rules of government action? Which functional evaluation can be given to this process of adaptation? This is a satisfactory development or has some weaknesses?
Secondly, we will try to reconstruct the details of the European amministration on global common systems, that connect global regulatory system to States and regional bodies. On the organizational side, as was the participation of European officials in meetings bodies mixed global? And what relations are established between global and European administrations? What influence can exert Europe's public administrations? And what influence are themselves subject? As for the decision-making process, as part of composite processes, characterized by the national, European and global? What 'strategic' games are exposed European administrations? And how react? In functional terms, what are the strengths and weaknesses of the participation of European administration in a common global systems?

The results expected from the research are: information gathering and processing data useful for the study of the effects of participation of institutions to global administrative system, in order to prepare studies and articles to be published in a volume or legal reviews. It also will organize intermediate seminars and meetings, even with foreign professors and experts in order to assess the results achieved by partial.