Books by Mariolina Eliantonio
This volume analyses, for the first time in European studies, the impact that non-legally binding... more This volume analyses, for the first time in European studies, the impact that non-legally binding material (otherwise known as soft law) has on national courts and administration.
The study is founded on empirical work undertaken by the European Network of Soft Law Research (SoLaR), across ten EU Member States, in competition policy, financial regulation, environmental protection and social policy. The book demonstrates that soft law is taken into consideration at the national level and it clarifies the extent to which soft law can have legal and practical effects for individuals and national authorities.
The national case studies highlight the points of convergence or divergence in the way in which judges and administrators approach soft law, while reflecting on the reasons for and consequences of various national practices.
A series of horizontal studies connect this research to the rich literature on new modes of governance, by revisiting traditional theories on soft law, and by reflecting on the potential of such instruments to undermine or to foster rule of law values.
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This book examines the field of European and global standardisation, showing how standards give r... more This book examines the field of European and global standardisation, showing how standards give rise to a multitude of different legal questions. It explores diverse topics in regulation such as food safety, accounting, telecommunications and medical devices. Each chapter offers in-depth analysis of a number of key policy areas. These multi-disciplinary contributions go beyond the field of law, and provide cross-disciplinary comparisons.
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This book aims to draw insights into the use of different regulatory instruments and the role of ... more This book aims to draw insights into the use of different regulatory instruments and the role of the CJEU for putting them in practice in the field of EU environmental law. The books tackles two main research objectives, namely 1) to identify the regulatory approach and the main regulatory developments in a specific field of EU environmental law and 2) to identify the way in which the CJEU has tried to reach its decisions (notably: legalistic or activistic?).
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This casebook studies the law governing judicial review of administrative action.
It examines th... more This casebook studies the law governing judicial review of administrative action.
It examines the foundations and the organisation of judicial review, the types of administrative action and corresponding kinds of review and access to court. Significant attention is also devoted to the conduct of the court proceedings, the grounds for review, and the standard of review and the remedies available in judicial review cases.
The relevant rules and case law of Germany, England and Wales, France and the Netherlands are analysed and compared. The similarities and differences between the legal systems are highlighted. The impact of the jurisprudence of the European Court of Human Rights is considered, as well as the influence of EU legislative initiatives and the case law of the Court of Justice of the European Union in the legal systems examined. Furthermore, the system of judicial review of administrative action before the European courts is studied and compared to that of the national legal systems.
During the last decade, the growing influence of EU law on national procedural law has been increasingly recognised. However, the way in which national systems of judicial review address the requirements imposed by EU law differs substantially. The casebook compares the primary sources (legislation, case law etc) of the legal systems covered, and explores their differences and similarities: this examination reveals to what extent a ius commune of judicial review of administrative action is developing.
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Some 40 years after van Gend en Loos, the impact of European law on the administrative laws of th... more Some 40 years after van Gend en Loos, the impact of European law on the administrative laws of the Member States of the European Union has manifested itself intensely and in many different aspects, because of the influence of both the European Court of Justice and EC legislation. This impact is particularly striking in relation to administrative law, because, as a part of public law, administrative law had long been deemed an area of monopoly of the State and a clear outgrowth of the State sovereign powers that precluded interference from any other jurisdiction. As of today, European law influences virtually all areas of substantive administrative law, administrative organisation, decision-making proceedings and judicial protection. Amongst those areas, this book focuses on the influence of the European Court of Justice’s case law on five selected aspects of the Italian, German and English rules on the judicial review of administrative action. Taking as a starting point the ECJ's case law on domestic remedies, the book reports the results of an investigation as to whether, and to what extent, the national courts have applied the standards of protection set out in the ECJ’s case law. Furthermore, it is investigated whether, in the areas in which a process of Europeanisation has taken place, the ECJ’s case law has contributed to an increasing similarity of the three legal systems. Finally, the book discusses whether, for the purposes of ensuring an effective judicial protection of Community rights, the rules on the decentralised enforcement of EC law in administrative courts should be harmonised by the European legislator.
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In various European countries such as France, Italy, and the Netherlands, lawmakers have adopted ... more In various European countries such as France, Italy, and the Netherlands, lawmakers have adopted legislation in order to deal with the consequences of the economic crisis. These laws contain provisions aimed at speeding up administrative decision making and judicial proceedings which have an impact on various provisions of general administrative law. Alongside the aim of facing the economic crisis, these measures aim to make administrative law more up-to-date and ensure it meets the needs of contemporary society.
However, acceleration measures concerning decision-making and judicial proceedings may clash with the need to preserve the quality of these proceedings. On the one hand, swift procedures can be considered to be one aspect of high-quality decision making. On the other hand, other aspects of quality such as public participation and the thorough consideration of all relevant aspects and interests, may be at risk when the speed of decision-making is the only focus of reforms.
Quality and Speed in Administrative Decision-Making: Tension or Balance? presents six national perspectives on these issues, together with a comparative overview comparing and contrasting national approaches with regards to finding a balance between the pace of proceedings and the quality of administrative and judicial decisions.
The book is of interest to academics of European and comparative administrative law, as well as policy-makers at the national and European level.
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This book is based on a report submitted to the European Parliament, whose aim was to provide a c... more This book is based on a report submitted to the European Parliament, whose aim was to provide a comparative analysis of legal provisions, doctrine and case-law on locus standi before civil, administrative and criminal courts of some selected legal systems and before the EU courts. Apart from the EU legal system, the study focuses on the legal systems of nine Member States of the European Union (Belgium; England and Wales; France; Germany; Hungary; Italy; Netherlands; Poland; Sweden) and the legal system of one non-EU Member State (Turkey). On the basis of the findings, a conclusive chapter stresses the congruities and differences between the legal standing criteria in the Member States, on the one hand, and before the EU Courts, on the other. Moreover, the findings with regard to the different fields of law in the Member States are compared. On the basis of a thorough analysis of the status quo in the EU and Member States’ legal systems, recommendations have also been developed, including suggestions on the possible improvements to the standing requirements in the EU and national legal systems.
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Special Issues by Mariolina Eliantonio
Journal of Banking Regulation, 2021
Following the outbreak of the Great Financial Crisis, numerous reforms were conducted in all area... more Following the outbreak of the Great Financial Crisis, numerous reforms were conducted in all areas of the European Union (EU)’s Economic and Monetary Union. These reforms aimed at strengthening the resilience of Member States’ economies after they had been put under severe strain by the crisis. They included, among others, the reinforcement of the efforts towards economic coordination in the framework of the European Semester for economic policy coordination, or the creation of the European Banking Union after which competences in the areas of banking supervision and bank resolution have been transferred to the European level. More than a decade after the Great Financial Crisis however, several of these reforms are still underway. This article is an introduction to this Special Issue whose contributions examine the reforms performed to date, as well as those that are currently under discussion, from the perspectives of multilevel (administrative) cooperation and the resort to soft law instruments. Indeed, the procedures newly devised rely heavily on the effective cooperation between national and European institutions as well as on a variety of soft law instruments.
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German Law Journal, 2021
This Special Issue aims at interrogating the judicial and extra-judicial challenges that arise fr... more This Special Issue aims at interrogating the judicial and extra-judicial challenges that arise from the EU complex administrative framework, which can be characterized as both multi-level—arising from the vertical cooperation between EU and national authorities—and cross-level—arising from horizontal cooperation between national authorities themselves. It starts from the premise that there may be decisions affecting natural and legal persons which cannot be easily reviewed judicially, whereas in extra-judicial cooperation, the lack of common standards or practices across Member States may undermine the effectiveness of EU policies and objectives. This Special Issue focuses on various mechanisms of horizontal and vertical cooperation, such as regulatory patterns giving rise to transnational administrative acts and mutual recognition systems, case studies of composite procedures in the field of the genetically modified organisms regime and information sharing in asylum policy, as well as multi-level inspection activities for the enforcement of EU law. It further complements the analysis on the judicial challenges arising from those cooperative structures with an examination of extra-judicial avenues of control in the EU administrative framework, namely the “EU queries” process and the cooperation of ombud offices, as well as the audit of the EU budget. This Special Issue reflects on ways to overcome the current challenges of, and seeks to prompt further research on, the multi-layered EU system of administrative cooperation.
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European Journal of Risk Regulation, 2021
COVID-19 has been an unprecedented challenge to many legal systems around the world. In attemptin... more COVID-19 has been an unprecedented challenge to many legal systems around the world. In attempting to mitigate the devastating social, economic and political effects of the virus, governments have closed national borders, schools, cinemas and restaurants, ordered lockdowns, strongly recommended that those over 70 years old stay indoors in quarantine-like conditions, banned social gatherings, and encouraged social distancing and the use of face masks.
In addition to “normal” legislative measures (or, in some legal systems, administrative rule-making in the form of governmental or ministerial decrees), much of the regulation of COVID-19 has taken place through circulars, instructions, guidance and other soft law norms, the legal status of which is not entirely clear. The articles of this Special Issue focus on the use of such non-binding soft law guidance in dealing with COVID-19 in a comparative perspective.
To what extent have national governments and other (central or local) authorities used non-binding soft law guidance – in addition to or instead of binding rules – to stop or to slow down the spread of the virus? To what extent has soft law been used to restrict fundamental and human rights (beyond what was foreseen in binding rules)? If soft law has been used in such a way, have public authorities overstepped constitutional and legal limits? How have courts, lawyers, and the public responded to soft law guidance?
Reflecting on these questions, the articles contained in this Special Issue compare and critically analyse the uses of soft law in dealing with COVID-19 at EU level, as well as in seven EU Member States (Finland, Germany, Greece, Hungary, Italy, Spain, Sweden) and China and England.
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In this special issue, firstly, we take a fresh look at the ‘classic’ mutual recognition system i... more In this special issue, firstly, we take a fresh look at the ‘classic’ mutual recognition system in the context of free movement of goods, by considering the most recent trends and developments; secondly, we explore policy areas in which mutual recognition has been playing a role, but on which there has not yet been extensive research, such as the areas of pharmaceuticals, agriculture, social security and tax; and thirdly, by acknowledging that mutual recognition is not a peculiarly EU regulatory technique, we consider one national experience of mutual recognition, the peculiar features of which could help to shed some light on the foundations and operation of mutual recognition at the supranational level.
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This special issue sheds light on the evolving role of the principle of effectiveness in EU law i... more This special issue sheds light on the evolving role of the principle of effectiveness in EU law in recent years and its relationship between the closely related principle of effective judicial protection, the right to an effective remedy under Article 47 of the Charter of Fundamental Rights (CFR), EU secondary procedural rules, and more recently the Member States’ duty to ensure effective legal protection contained in Article 19 TEU.
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Yearbook of European Law, 2018
About 25 years ago, Francis Snyder noted that rules of conduct that have no legally binding force... more About 25 years ago, Francis Snyder noted that rules of conduct that have no legally binding force may nevertheless have legal and practical effects in the European legal order. Boosted by institutional support enshrined in initiatives such as the Commission White Paper on Governance, the Lisbon Strategy, and Europe 2020, ‘soft law’ instruments are now present in nearly every EU policy. As expected, much was written on the use of soft law by the EU, on Member States’ compliance with soft law provisions, and, most of all, on the desirability of the use of soft law instruments in the process of European integration.
The contribution of this special issue to the analysis of the way in which EU Courts engage with soft law instruments is threefold. First, it expands the ambit of research on soft law by looking at different policy areas, such as monetary, tax, environmental, consumer protection, energy and neighbourhood policy. Second, mindful that soft law comes in an ‘infinite variety,’ we made a conscious choice to deal with a representative mix of soft law forms. Third, and most importantly, this special issue contributes to the literature by further exploring substantive issues pertaining to the status and effects of soft law, as well as to its impact on rule of law values.
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European Energy and Environmental Law Review, 2018
This Special Issue explores several national perspectives on the standard of review, and access t... more This Special Issue explores several national perspectives on the standard of review, and access to scientific expertise in environmental judicial review before national courts. The examination is conducted in order to answer two overarching research questions: first, whether in the respective legal systems the EU principle of effective judicial protection is guaranteed, and second, whether the current differences in the law and the practice of the various legal systems might impair the uniform and effective enforcement of EU environmental law. At a practical level, it should stressed that the issue of access to scientific knowledge in environmental judicial review is closely linked to the standard (ie the intensity) of review which courts in environmental matters feel entitled or obliged to exercise. One might be inclined to think that the deeper the review of the facts and the scientific assessments made by the administration is in a certain legal system, the wider the powers of courts to avail themselves of help to understand those very facts and assessments. This Special Issue examines whether this assumption is correct and, specifically, the relation between the standard of review, the activity of investigation the courts exercise, and their access to scientific expertise when dealing with matters considered environmental.
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European Public Law, 2018
The collection tries to identify common trends and variations in how the dynamics of administrati... more The collection tries to identify common trends and variations in how the dynamics of administrative law change when new actors and multi-actor organizations emerge to govern the public sphere. What can still be considered as administrative authority and administrative action in this complex new reality, and how are these connected to the rest of society? To what extent are the foundational categories – discretion, powers, administrative act and procedure, judicial review – and principles of administrative law – such as legality, public accountability, proportionality, legitimate expectations, impartiality and independence, equality and the like – changing to accommodate instances in which core public functions are either co-exercised with or outsourced to other societal actors?
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Legal Issues of Economic Integration, 2017
In the light of the lack of legal research focusing specifically on the co-regulation via standar... more In the light of the lack of legal research focusing specifically on the co-regulation via standardization, the increased legislative use of European standardization and the juridification process taking place at the EU level, this special issue intends to fill the void left. To do so, the special issue presents several different perspectives with the aim to examine the wide range of concerns raised by the phenomenon of private-party rulemaking, of which European standardization is a representative example, from the perspectives of different sectors of EU law. The contributions to the special issue show that the process of EU standardization has not yet found a proper constitutional positioning in the system of European governance. All papers indeed indicate that, while being promoted as an efficient market tool, European standardization presents several legal challenges which render it hard to reconcile with the values the EU aims at protecting. Its hybrid nature is in essence what makes European standardiza- tion strong from a market perspective and weak from the perspective of compliance with several aspects of EU law
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European Journal of Law Reform, 2017
This special issue takes an interdisciplinary approach, bringing together legal and political sci... more This special issue takes an interdisciplinary approach, bringing together legal and political science perspectives. Taking stock of the literature on ‘Better Regulation’ and the latest policy developments, the collection examines the consequences of the new ‘Better Regulation’ agenda for law and policy-making in the European Union, with the aim of answering one overarching research question: is there evidence of enduring politicisation despite the emphasis on neutral evidence-based policy-making? Additionally, the papers analyse the causes and consequences of such politicisation. Furthermore, the contributions identify how politicisation and contestation limit the potential of the new ‘Better Regulation’ package to live up to its five core principles: effectiveness, coherence, participation, openness and accountability.
The contributions to the special issue investigate four central themes in the ‘Better Regulation’ package, following the policy cycle:
(1) regulatory streamlining and cleaning-up of EU legislation;
(2) stakeholder consultations and impact assessment;
(3) policy evaluation and regulatory fitness and performance checks;
(4) alternative forms of regulation, implementation and enforcement.
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This Special Issue presents, following a discussion of the Belgian rulings on the administrative ... more This Special Issue presents, following a discussion of the Belgian rulings on the administrative loop, several national perspectives on the possible implications of these judgments beyond the Belgian legal system. These contributions illustrate that all legal systems need to delicately balance efficiency and the protection of fundamental rights. Furthermore, while speedier decision-making and dispute resolution is a shared aim of the legal systems presented, the solutions found to protect individuals’ rights (and the intensity to which this is a concern at all) can vary quite significantly.
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Maastricht Journal of European and Comparative Law, 2016
This special issue presents articles that have originated from a workshop held at the Maastricht ... more This special issue presents articles that have originated from a workshop held at the Maastricht University Campus Brussels on 19 October 2015. On that occasion, legal scholars and practitioners from a diversity of backgrounds reflected upon whether and how data protection is and should be balanced with potentially conflicting rights and interests protected by EU law. Data protection and its challenges have already been extensively researched and debated, but the findings presented in this special issue are distinctive as they attempt to adopt a cross-sectional approach to data protection matters. The articles examine ‘traditional’ conflicts, such as with the freedom of expression, as well as those in less known policy fields where data protection concerns are essentially still largely neglected, such as competition law and tax law.
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Review of European Administrative Law, 2015
This ‘special issue’ of REALaw ‘Proceduralisation of EU law through the backdoor’ is the result o... more This ‘special issue’ of REALaw ‘Proceduralisation of EU law through the backdoor’ is the result of a workshop held at Maastricht University in 2014. In recent years, there has been a bourgeoning of legislative initiatives as well as legislative rules placing emphasis on judicial enforcement and remedies across several EU policies. These standards are introduced on the basis of a distinct substantive policy of the EU. The resulting procedural rules illustrate the tension between the existence of a substantive EU competence and the lack of an explicit corresponding procedural competence. Such an observation calls for two central research questions. At ‘micro’ level, are these developments coherent within a policy or across comparable EU policies? This has been examined in each of the articles submitted that focus on selected EU policies (competition, consumer protection, public procurement, environmental law, data protection and anti-discrimination).
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Books by Mariolina Eliantonio
The study is founded on empirical work undertaken by the European Network of Soft Law Research (SoLaR), across ten EU Member States, in competition policy, financial regulation, environmental protection and social policy. The book demonstrates that soft law is taken into consideration at the national level and it clarifies the extent to which soft law can have legal and practical effects for individuals and national authorities.
The national case studies highlight the points of convergence or divergence in the way in which judges and administrators approach soft law, while reflecting on the reasons for and consequences of various national practices.
A series of horizontal studies connect this research to the rich literature on new modes of governance, by revisiting traditional theories on soft law, and by reflecting on the potential of such instruments to undermine or to foster rule of law values.
It examines the foundations and the organisation of judicial review, the types of administrative action and corresponding kinds of review and access to court. Significant attention is also devoted to the conduct of the court proceedings, the grounds for review, and the standard of review and the remedies available in judicial review cases.
The relevant rules and case law of Germany, England and Wales, France and the Netherlands are analysed and compared. The similarities and differences between the legal systems are highlighted. The impact of the jurisprudence of the European Court of Human Rights is considered, as well as the influence of EU legislative initiatives and the case law of the Court of Justice of the European Union in the legal systems examined. Furthermore, the system of judicial review of administrative action before the European courts is studied and compared to that of the national legal systems.
During the last decade, the growing influence of EU law on national procedural law has been increasingly recognised. However, the way in which national systems of judicial review address the requirements imposed by EU law differs substantially. The casebook compares the primary sources (legislation, case law etc) of the legal systems covered, and explores their differences and similarities: this examination reveals to what extent a ius commune of judicial review of administrative action is developing.
However, acceleration measures concerning decision-making and judicial proceedings may clash with the need to preserve the quality of these proceedings. On the one hand, swift procedures can be considered to be one aspect of high-quality decision making. On the other hand, other aspects of quality such as public participation and the thorough consideration of all relevant aspects and interests, may be at risk when the speed of decision-making is the only focus of reforms.
Quality and Speed in Administrative Decision-Making: Tension or Balance? presents six national perspectives on these issues, together with a comparative overview comparing and contrasting national approaches with regards to finding a balance between the pace of proceedings and the quality of administrative and judicial decisions.
The book is of interest to academics of European and comparative administrative law, as well as policy-makers at the national and European level.
Special Issues by Mariolina Eliantonio
In addition to “normal” legislative measures (or, in some legal systems, administrative rule-making in the form of governmental or ministerial decrees), much of the regulation of COVID-19 has taken place through circulars, instructions, guidance and other soft law norms, the legal status of which is not entirely clear. The articles of this Special Issue focus on the use of such non-binding soft law guidance in dealing with COVID-19 in a comparative perspective.
To what extent have national governments and other (central or local) authorities used non-binding soft law guidance – in addition to or instead of binding rules – to stop or to slow down the spread of the virus? To what extent has soft law been used to restrict fundamental and human rights (beyond what was foreseen in binding rules)? If soft law has been used in such a way, have public authorities overstepped constitutional and legal limits? How have courts, lawyers, and the public responded to soft law guidance?
Reflecting on these questions, the articles contained in this Special Issue compare and critically analyse the uses of soft law in dealing with COVID-19 at EU level, as well as in seven EU Member States (Finland, Germany, Greece, Hungary, Italy, Spain, Sweden) and China and England.
The contribution of this special issue to the analysis of the way in which EU Courts engage with soft law instruments is threefold. First, it expands the ambit of research on soft law by looking at different policy areas, such as monetary, tax, environmental, consumer protection, energy and neighbourhood policy. Second, mindful that soft law comes in an ‘infinite variety,’ we made a conscious choice to deal with a representative mix of soft law forms. Third, and most importantly, this special issue contributes to the literature by further exploring substantive issues pertaining to the status and effects of soft law, as well as to its impact on rule of law values.
The contributions to the special issue investigate four central themes in the ‘Better Regulation’ package, following the policy cycle:
(1) regulatory streamlining and cleaning-up of EU legislation;
(2) stakeholder consultations and impact assessment;
(3) policy evaluation and regulatory fitness and performance checks;
(4) alternative forms of regulation, implementation and enforcement.
The study is founded on empirical work undertaken by the European Network of Soft Law Research (SoLaR), across ten EU Member States, in competition policy, financial regulation, environmental protection and social policy. The book demonstrates that soft law is taken into consideration at the national level and it clarifies the extent to which soft law can have legal and practical effects for individuals and national authorities.
The national case studies highlight the points of convergence or divergence in the way in which judges and administrators approach soft law, while reflecting on the reasons for and consequences of various national practices.
A series of horizontal studies connect this research to the rich literature on new modes of governance, by revisiting traditional theories on soft law, and by reflecting on the potential of such instruments to undermine or to foster rule of law values.
It examines the foundations and the organisation of judicial review, the types of administrative action and corresponding kinds of review and access to court. Significant attention is also devoted to the conduct of the court proceedings, the grounds for review, and the standard of review and the remedies available in judicial review cases.
The relevant rules and case law of Germany, England and Wales, France and the Netherlands are analysed and compared. The similarities and differences between the legal systems are highlighted. The impact of the jurisprudence of the European Court of Human Rights is considered, as well as the influence of EU legislative initiatives and the case law of the Court of Justice of the European Union in the legal systems examined. Furthermore, the system of judicial review of administrative action before the European courts is studied and compared to that of the national legal systems.
During the last decade, the growing influence of EU law on national procedural law has been increasingly recognised. However, the way in which national systems of judicial review address the requirements imposed by EU law differs substantially. The casebook compares the primary sources (legislation, case law etc) of the legal systems covered, and explores their differences and similarities: this examination reveals to what extent a ius commune of judicial review of administrative action is developing.
However, acceleration measures concerning decision-making and judicial proceedings may clash with the need to preserve the quality of these proceedings. On the one hand, swift procedures can be considered to be one aspect of high-quality decision making. On the other hand, other aspects of quality such as public participation and the thorough consideration of all relevant aspects and interests, may be at risk when the speed of decision-making is the only focus of reforms.
Quality and Speed in Administrative Decision-Making: Tension or Balance? presents six national perspectives on these issues, together with a comparative overview comparing and contrasting national approaches with regards to finding a balance between the pace of proceedings and the quality of administrative and judicial decisions.
The book is of interest to academics of European and comparative administrative law, as well as policy-makers at the national and European level.
In addition to “normal” legislative measures (or, in some legal systems, administrative rule-making in the form of governmental or ministerial decrees), much of the regulation of COVID-19 has taken place through circulars, instructions, guidance and other soft law norms, the legal status of which is not entirely clear. The articles of this Special Issue focus on the use of such non-binding soft law guidance in dealing with COVID-19 in a comparative perspective.
To what extent have national governments and other (central or local) authorities used non-binding soft law guidance – in addition to or instead of binding rules – to stop or to slow down the spread of the virus? To what extent has soft law been used to restrict fundamental and human rights (beyond what was foreseen in binding rules)? If soft law has been used in such a way, have public authorities overstepped constitutional and legal limits? How have courts, lawyers, and the public responded to soft law guidance?
Reflecting on these questions, the articles contained in this Special Issue compare and critically analyse the uses of soft law in dealing with COVID-19 at EU level, as well as in seven EU Member States (Finland, Germany, Greece, Hungary, Italy, Spain, Sweden) and China and England.
The contribution of this special issue to the analysis of the way in which EU Courts engage with soft law instruments is threefold. First, it expands the ambit of research on soft law by looking at different policy areas, such as monetary, tax, environmental, consumer protection, energy and neighbourhood policy. Second, mindful that soft law comes in an ‘infinite variety,’ we made a conscious choice to deal with a representative mix of soft law forms. Third, and most importantly, this special issue contributes to the literature by further exploring substantive issues pertaining to the status and effects of soft law, as well as to its impact on rule of law values.
The contributions to the special issue investigate four central themes in the ‘Better Regulation’ package, following the policy cycle:
(1) regulatory streamlining and cleaning-up of EU legislation;
(2) stakeholder consultations and impact assessment;
(3) policy evaluation and regulatory fitness and performance checks;
(4) alternative forms of regulation, implementation and enforcement.
By studying a selected sample of EU soft law measures and carrying out interviews as well as a case law analysis, this chapter demonstrates that Italian civil servants and judges use EU soft law regularly, at least in the fields of competition and State aid, financial regulation and environmental policy.
First, a very brief overview of the system of access to justice as it has developed from the Treaty of Rome until now is given. It will be demonstrated what is meant when the Court of Justice of the European Union (CJEU) makes use of its famous tenet that there exists within the EU ‘a complete system of remedies’.
Building on that knowledge, it is possible to see the relevance of two recent developments in the European legal order. One entails the changes in the Treaty of Lisbon, mainly in the primary article governing the possibility for judicial review of acts of the EU, and secondary legislation that aims to support these changes. The second is the current line that the CJEU is taking in its case law. Both of these developments need to be placed in the context of the entry into force of the Aarhus Convention, and the struggles of the EU to comply with its obligations in relation to this third pillar. For this discussion, this chapter will mainly focus on the relationship between the EU and Article 9(3) of the Aarhus Convention. Where the other paragraphs of that Article cause fewer difficulties, the implementation of the third one has been the most problematic, and thus deserving our full attention.
We will end by describing the status quo, which will show that the line of the EU and its courts that judicial protection of the environment will mostly take place at a national level, remains fundamental yet controversial. We will conclude by addressing the pressure that this places on national legal orders and explain how the complexity of implementation of environmental measures equally hinders access to justice for ENGOs in the EU.