RICERCA ITALIANA     

Research program

THE RELATIONSHIP BETWEEN EUROPEAN ADMINISTRATIVE LAW AND GLOBAL ADMINISTRATIVE LAW

University Co-ordinator

Università degli Studi di NAPOLI "Federico II" - SCIENZE DELLO STATO - ()

Research Unit Leader

Giacinto Della Cananea

Description

The research aims at studying the interactions between global law and European law under three points of view. The first is the analysis of both principles and tools established by both the EU and some global regimes, such as the UN and the WTO, but also some more specific ones, such as the Aarhus Convention and that concerning tuna fishing in the Atlantic. This is, to say so, the empirical part of the research, which requires the study of both implementing practices and, most of all, judicial enforcement. A second task is more theoretical. It consists in trying to understand the underlying rationales or values. A third task has systematic nature. The research tries to ascertain whether all this means that due process is a global principle of law, in the sense in which the statute of the International Court of Justice mentions “general principles of law recognized by civilised nations”.
Three issues will be considered with special attention:
a. The right to be heard in administrative procedures. The questions to consider are, first, whether interested parties must receive a notice concerning the procedure and whether they have the right to be heard. Another crucial point is whether such rights stem from written norms or from broader principles of law and, in both cases, which consequences derive from their infringement (annulment or nullity). Once all these questions are considered, it is possible to compare European and global rules, to see if they are coherent, at least to a certain extent.
b. Publicity, with special regard to the duty to give reasons. Does it apply to all rules and decision? Is there an essential content? Must the reasons be explicit or can they be derived per relationem? If the reasons are not provided, can the affected party seek redress judicially, including the annulment of the contested measures? It cannot be taken for granted that the solutions prevailed in the European context are shared by global regulatory regimes. A comparison looks particularly helpful with WTO rules concerning subsidies. Other obligations must be considered, too, for example the rules laid down by the EU and the WTO’s General procurement agreement regarding bids.
c. Judicial review, with specific regard to interim measures. In all Western legal orders there is a balance between the public interest to a speed execution of public decisions and the need to prevent serious harms to individual rights resulting from unlawful decisions. EC directives and the case-law of the European court of justice require interim measures to be adopted by national authorities. Other regimes, including those aiming at protecting human rights, require the adoption of such measures. The question arises whether the meaning and content of interim measures are the same or they differ. A recent study, for example, proposes to distinguish such measures on the bases of the powers expressly given to arbitral and judicial bodies, those inherent and, finally, those implicit as well as the content (typical or not) of such measure. The legal effects deriving from the infringement of the duty to comply with such measures is still another point to consider.