![endif]>![if>
1.
Introduction![endif]>![if>
There are no legal competencies in Community law to harmonise the public
administration in the Member states, and there is as yet no policy
of national public administration at the Union level. Nevertheless
European policies impact on the national administrations. Some studies even show that the administrative
set-ups in Member States in many cases may be stronger affected
by Europeanisation than the actual policies pursued. Legal studies have long shown that there is
even a general administrative law of the EU in the making, with
harmonising effects on the Member states.
![endif]>![if>
Despite the fact of community influence, the prevailing view is still that
�the distribution of administrative powers in the European Union
rests on the presumption that EU law is administered by member
states which act autonomously� and that �interference into that
organizational autonomy is either punctual or indirect�.
![endif]>![if>
But is the influence from Community law only �punctual and indirect�? Do
not community legislative measures and the requirements of their
implementation by the member states on the contrary imply a more
coherent administrative policy? Is what can be observed the mere
restrictive and confining consequences of Community policies in
different fields on national policy, or can it be described as
the implications of a Community policy on public administration
as such? In a certain sense, this is a heretical question because
there is no community policy or competency regarding national
administrative set-ups.
![endif]>![if>
My object of study in this paper is two-fold: the development of an EU
administrative policy as a by-product of development and implementation
of union policies within other fields and the legal claims of
EU legal measures on administrative structures and procedures
within the Member states. My main theme is that lack of Union
competencies on the field of administrative policy has not precluded
the Union from drawing up measures which directly and indirectly
affect the administrative policy of the Members states. The result
is a Union policy on public administration not by comprehensive
intent, but by default. Although a universal policy within the
field is lacking, the result may be seen as a quite coherent body
of principles and rules governing the administrative institutions
and procedures of the member states.
![endif]>![if>
I will demonstrate these claims by presenting the different ways which
community law and policy instruments influences national public
administration. I place these ways in three different groups.
The first is the development of protection of individual rights
based on the treaties and on general principles of law. The second
are the requirements stemming form implementation and monitoring
of secondary legislation. The third is the influence on general
administrative law from measures within the different policy areas
of the Union.
![endif]>![if>
The method of my investigation is that of classical jurisprudence. By collecting
and systematising the fragments of legislation and case-law regarding
national administrative law, I seek to establish a coherent picture
of legal requirements at the Union level requiring harmonisation
og administrative law at the Member state level. In this I draw
upon work done by scholars of administrative law and empirical
studies of various policy fields. My contribution is the more
modest one of piecing various contributions togther and to read
them as if they were the result of a coherent policy of harmonisation.
My ambition is to show that inputs from various fields of community
law may be read in such a light. I do not claim that the different
legal requirements are products of such a policy on the Union
level. Neither do I claim that the pattern I present is the only
pattern that may be constructed by induction from the existing
legal texts, or indeed that it is necessary to establish any pattern
at all. What I do want to show is that it is possible to establish
a coherent picture that amounts to a program of harmonisation.
The legitimacy of such requirements of harmonisation of national
administrative law according to the existing distribution of competecies
and tasks within the Union, and their actual effects on national
administrative policy and set-ups I leave to future investigations.
2.
Legal background![endif]>![if>
It is said that no acquis communautaire (community legislation) exists for setting standards
of horizontal systems of governance or national public administrations. The policies of the Union or the Community do not include administrative
policy, and the Community has no powers to harmonise administrative
law in the member states. Consequently, there is no general community
legislation applicable in
the domains of public administration and administrative law.
![endif]>![if>
On the other hand it is well known that community policies and legal measures
have great implications for administrative law and arrangements
in the member states. Most
areas of government are covered or affected by acquis
communautaire. Many community initiatives in specific
sectors are driven by specific views on administrative policy
with clear targets and contents. This is clearly seen within the
competition-law driven liberalisation of previously monopolised
sectors such as communications, transportation and energy, where
community legal measures require specific, market oriented administrative
reforms in the member states. Also the development of individual
rights which currently is focused around the Charter of Fundamental
Rights has clear implications for administrative policy. The Charter
Articles 41 and 42 give the right to good administration and to
access to documents. The sum
of such influencing forces, have led some to talk about emergence
of a �European Administrative Space�, which mainly concerns basic
institutional arrangements, processes, common administrative standards
and civil service values.
![endif]>![if>
The horizontal influence of community law is not
limited to recommendations and soft law. The aquis communautaire in many ways curtails and shapes the administrative
structures of the member states. Important examples are individual
procedural rights such as the right to be heard, to be provided
with reasons and access to judicial review, substantial requirements
such as interim relief, protection of legitimate expectations,
proportionality, and state liability for breaches of community
law and organisational requirements such as separation of administrative
and commercial functions. Further requirements follow from the
prohibition against misuse of a dominant position and prohibition
against distorting competition
by favouring certain undertakings. Community law and in particular
competition and internal market rules apply regardless of the
ownership of an undertaking (public or private) and therefore
directly affect administrative arrangements as far as they have
effects on the market. In addition, many of the measures under
the specific policy areas concern administrative organisation
and procedures in the member states. This is particularly the
case in the sectors undergoing liberalisation and in sectors organising
services of general interest. Important examples are the energy,
communication and transportation sectors.
![endif]>![if>
3.
Protection of individual
rights ![endif]>![if>
![endif]>![if>
The lack of an administrative code or a body of general rules applicable
to administrative practices of the community has led the Court
of Justice to develop a protection of individual rights based
on general principles of administrative law. Initially, such rights were developed in the
context of community administration such as staff cases involving
the rights of community employees and competition law involving the right of
private undertakings. Soon, community law required individual rights
in administrative proceedings also against national administrations
when applying and enforcing community legal rules.
![endif]>![if>
The Court of Justice has another strand of cases developing individual
rights in administrative proceedings in conjunction with the freedoms
of the EC-treaty. These freedoms
i.e. free movement of goods, services, people, and capital, mean
that national public administrations of the Member States, as
key elements for ensuring and implementing them, have to work
in a way that renders effective the implementation of those Treaties
in all their respects. Protection of the right to free
movement entails for instance the obligation to give reasons for
individual restrictions of such a right and the right to legal
review, the right to a timely decision and the principle of proportionality. In this
context could also be mentioned the principle that the State is
liable for loss and damage caused to individuals as a result of
breaches of Community law that has been developed by the Court
of Justice. To a large extent, the principle of state liability
serves to protect individuals against administrative encroachments
of community rights. The principle may therefore be said to form
part of the substantial body of community administrative law and
has its counterpart in Article 288 EC that gives a right to compensation
for damages caused by Community institutions and servants.
![endif]>![if>
A third line of development has been political requirements of membership
in the EU, dating back to when countries with a more than dubious
human rights� record, such as Franco�s Spain, started considering
applying to the Communities. This has developed into requirements for the
present applicant countries in the �Copenhagen criteria�; a set
of standards based on articles TEU 6 and TEU 49. Administrative
capacity-building and normative requirements that the public administrations
of the applicant countries must fulfil are important parts of
the enlargement process. In this respect, one may speak more pertinently
of a Union policy on public administration on the state level.
4.
Implementation![endif]>![if>
4.1.
Towards an implementation
policy of administration![endif]>![if>
If we disregard special fields such as competition law and enforcement
of the treaties and EU legislation towards the Member States,
implementation and administration of community legislation is
performed by national administrations in the member states, according
to national administrative law. This means that public administration
policy is crucial for the functioning of community legislation.
Where national administrative bodies are inefficient or ill equipped
to manage community legislation, this legislation will be mismanaged.
National administrative bodies and national administrative law
must have the capacity to implement correctly. This involves questions
of organisation, resources and administrative law.
![endif]>![if>
The little that there is of a comprehensive European Union policy of administration
is tied to the question of implementation and enforcement of community
rules. To this effect, the Council has issued recommendations
to the Member States and the Commission, for instance the Council
Resolution of 16 June 1994 on the development of administrative
cooperation in the implementation and enforcement of Community
legislation in the internal market, Council Resolution of 29 June 1995 on the effective
uniform application of Community law and on the penalties applicable
for breaches of Community law in the internal market and Council Resolution of 8 July 1996 on cooperation
between administrations for the enforcement of legislation on
the internal market. So far the recommendations do not extend beyond
establishing contact points for exchange of information and to
help enterprises to deal with any intra-Community trade barriers.
The preambles to the recommendations advance further into the
realm of administrative policy. Among the topics mentioned are
�clear ground rules for the exchange of enforcement information
as a precondition for cooperation to be effective, establishing,
in each sector concerned, the type of information to be exchanged,
the stage of the enforcement process at which it is to be exchanged,
and criteria regarding confidentiality, proportionality, maximum
response times and other technical aspects of information exchange�.
![endif]>![if>
Looking towards the future, the Commission states in its White Paper on
Governance: �ultimately the
impact of European Union rules depends on the willingness and
capacity of Member State authorities to ensure that they are transposed
and enforced effectively, fully and on time.� This points towards a European policy of public
administration. Even though administrative policy lies within
the realm of the member states, the Commission endeavours upon
making suggestions of administrative reform to improve implementation,
such as setting up co-ordination units within central government
to improve the enforcement of Community law and increased review
of administrative bodies by encouraging national courts to take
a more active role in controlling the application of Community
rules. Presently, the extent to which member states co-ordinate
their EU-related policies varies considerably. They should also according to the Commission
increase the capacity for dispute settlement through networks
of ombudsmen or mediators. The Commission refers to the capacity-building
taking place in the applicant countries and states that �the existing
Member States should ensure that they too improve their performance
and make adequate resources available in this field. The Union
can effectively draw on the experience acquired with the applicant
countries, such as the �twinning arrangements�. This could be
seen as the Commission signalling an enhanced effort into shaping
administrative policy in the member states in the future.
![endif]>![if>
4.2 General legal requirements of implemetation
Despite the fact that community law is administered by national governments
according to national law, there are some general requirements
of community law as to the implementation and enforcement of community
law. Presently, the first requirement regarding transposition
of community law into national law is laid directly down in the
EC-treaty. Article 249 states for regulations that they shall
have general application and be binding in their entirety and
directly applicable in all Member States. This amounts to a delegation
of legislative powers from the member states to the Community. A directive shall be binding, as to the result
to be achieved, upon each Member State to which it is addressed,
but shall leave to the national authorities the choice of form
and methods.
![endif]>![if>
As a starting point, the member states are thus free
to choose the form and methods of transposing directives into
national law. A closer look, however, reveals that this freedom
has certain limits following from the jurisprudence of the Court
of Justice. Community law has requirements both to how the transposition
should be performed and to remedies and sanctions against faulty
transposition and implementation.
![endif]>![if>
A Member State cannot rely upon domestic difficulties
or provisions of its national legal system, even its constitutional
system, for the purpose of justifying a failure to comply with
obligations to implement community legislation. This, of course, is a consequence of the primacy
of community law, and implies that national administrative arrangements
must yield to community requirements. The obligation as to primacy
applies not only to the courts in the Member States. All administrative
bodies, including decentralised authorities, are subject to it,
and individuals may therefore rely on a provision of Community
law against them. The Community may not have competencies within
the field of administrative policy, but it certainly has within
its formal legal power to modify and substitute national administrative
law and practices.
![endif]>![if>
The Member States are bound to implement the provisions
of directives in a manner that fully meets the requirements of
clarity and certainty in legal situations imposed by the Community
legislature, in the interests of the persons concerned established
in the Member States. To that end, the provisions of a directive
must be implemented with unquestionable legal certainty and with
the requisite specificity, precision and clarity. The ECJ has
refused to accept as fulfilment of these requirements clear statements
on the interpretation of words in a statute stated in the preparatory
material to the act. It has also held that case law cannot, in any
event, satisfy those requirements of legal certainty. In both of these cases, the wording employed
in the national legislation seemed to exclude the rights embodied
in the concerned directives. The Court has further refused to
accept as sufficient the assertion from a member state that a
community conforming result follows from national law under rules
of interpretation which are specific to national law. Such a solution
is not sufficient for nationals of other Member States to determine
the exact scope of a legislative amendment and know the full extent
of their rights.
![endif]>![if>
Furthermore, the Member States must ensure the full
application of directives, not only in fact but also in law. Therefore, in the implementation of a directive,
a member state may not rely on existing administrative practices
or the tolerance which is exercised by the administration under
existing national rules, nor on administrative rules which do
not confer any right on individuals capable of being relied on
before national courts. In addition, a Member State cannot discharge
its obligations under a directive by means of a mere circular
which can be amended by the administration at will, by reference to rules of good management by
which its administrative authorities are required to observe or by a general provision in national legislation
referring to community law. This does not mean, however, that implementation
of directives necessarily requires legislative measures. Specific
implementing measures are not necessary if the national legal
system already secures the aims pursued by the directive. This
may be the case where the necessary legislation already exists
in national law, of where for instance principles of constitutional
or administrative law render specific national legislation superfluous.
The conditions for this is that the legal position arising from
such principles are sufficiently precise and clear and may be
relied upon by individuals before the national courts. A Member State may leave the implementation
of the objectives pursued by Community directives to social partners
through collective agreements. The State is still, however, responsible
for fulfilling its obligation to ensure that the directives are
fully implemented by adopting such legislative or administrative
measures as may be appropriate. In sum, we may say that the court puts emphasis
on formal measures of a legal nature in the way of implementation
meaning that implementation in actual substance is not sufficient.
Compared to the administrative practice in many Member states,
this represents a shift from substantial to formal rationality
in the competencies and means employed by the public sector.
![endif]>![if>
Secondary legislation may provide for identifying
and if necessary setting up of administrative bodies responsible
for handling cases, monitoring and control of parties affected
by community rules. In such cases one can speak of sectorial requirements
of national administrative set-up and practices. Where a Community
act does not specifically provide for any penalty for an infringement
or refers for that purpose to national laws, regulations and administrative
provisions, Article 10 of the Treaty requires the Member States
to take all measures necessary to guarantee the application and
effectiveness of Community law. This may entail institutional
arrangements in the form of organisational measures and sanctions.
For that purpose, while the choice of penalties remains within
their discretion, the Member States must ensure in particular
that infringements of Community law are penalised under conditions,
both procedural and substantive, which are analogous to those
applicable to infringements of national law of a similar nature
and importance and which, in any event, make the penalty effective,
proportionate and dissuasive.
![endif]>![if>
The obligations of the Member States are not exhausted by the requirement
to ensure analogous enforcement to national measures. National
arrangements must not render virtually impossible or excessively
difficult the exercise of rights conferred by Community law. In
instances where national mechanisms are lacking or insufficient
to secure the compliance with community rules, specific means
to enforce community rules must be made available. In Factortame
I, the ECJ ruled that a national court must �disapply� a national
rule that precludes it from granting interim relief in proceedings
brought against the government. In effect, however, the result was to create
a new institution of judicial review in United Kingdom, because
under national law, the English courts had no power to grant interim
relief in a case such as the one before it. Such relief was precluded
by the old common-law rule that an interim injunction may not
be granted against the Crown. It has been confirmed by the ECJ
in later decisions that the rule in Factortame I requires that
national courts have �to be able to grant interim relief and to
suspend the application of the disputed national legislation�. The duty to provide effective protection of
community rights may therefore necessitate innovations in national
law.
5.
Sectorial administrative requirements![endif]>![if>
Most Community law is regulatory in nature. The main parts of the EC treaty
curbs and co-ordinates the regulatory power of the Member States
concerning the common market. There
is a very large amount of community legislation regarding substantive,
sectorial administrative law provisions. The body of aquis communautaire will inevitably influence both the style and structure
of national administrations. Seen from the perspective of administrative
law, this means that Union legal measures in the different policy
areas not only curtail and harmonise sector-oriented policy instruments,
but also directly influence organisational and procedural legal
rules, in other words rules of general administrative law
![endif]>![if>
It is commonplace to distinguish between two ways in which community law
in general curtails and influences national law. On the one hand
we have the effect of excluding certain options from the range
of national policy choices as can be seen in the general prohibitions
against discriminatory measures, restrictions on the free movements
and distortion of competition. In the literature such effects
have been described as �negative integration� or �old regulatory policy�. On the other hand we have harmonising or regulatory
measures that to a lesser or greater extent specify the goals
to be reached and prescribe measures to reach them, coined as
�positive integration� or �new regulatory policy�.
![endif]>![if>
In his study of measures of integration on national policies, Trygve Ugland
has distinguished between substantive and procedural mismatches. A substantial mismatch refers to the question
of what is to be regulated. A procedural mismatch exists when
a state or a group of states have organised a political area differently
from the established member states or the EU as a whole. In the
case of a procedural mismatch, the community measure complies
the Member State to rearrange its administrative organisation,
capacities and practices. This entails that reforms in national
administrative law may be the response to the development of Union
policy in the different fields of Union competencies.
![endif]>![if>
In the case of instruments of positive integration, the determination of
mismatch depends on the measures formulated in the specific legal
act, and the scope this leaves for policy and means of implementation
to the member states. In some cases, a sector-based harmonisation
of administrative policy and law, may be the instrument specifically
chosen as part of the Union policy, e.g. when union policy requires
the Member states to have and to organise a regulatory authority
in a certain way. In the case of negative integration, the answer
is not so easily attained. The general restrictions of the instruments
of negative integration in some cases bring to an end to national
policies. Examples of this are the abolishment of customs and
border control within the single market, of policies of favouring
nationals in acquisition of property or access to rights and positions,
state subventions of national industries and all cases of overt
discrimination. In many cases, however, the effects are such that
they influence the means with which different policies are pursued,
rather the policies as such. From one perspective, one may in
such cases say that the instruments of negative integration require
of the national administration to adapt or to abandon its policy.
There are, of course, countless examples of such adaptation involving
changes in legal or administrative measures or in organisational
set-up to maintain a national policy. For this reason, it is doubtful
whether one can say that requirements of institutional change
are more strongly tied to instruments of positive integration
than to instruments of negative integration. The need for institutional change in the national
administrations follows not only from explicit requirements of
instruments of positive integration, but is often an effect of
curbs on the range of policy instruments that may be employed.
![endif]>![if>
One example from the accession of the Nordic states to the European Economic
Area and the EU are the fates that the instruments of anti-alcohol-policy
have endured. Finland, Norway and Sweden have had restrictive
policies on production and distribution of alcoholic beverages,
in particular wines and spirits. The alcohol policy is part of
the general health and social policy and State control measures
are used to minimise the harmful effects to health by restricting
the consumption of alcoholic beverages. The measures included
high taxes, restrictions on production, imports and distribution
of alcohol by the way of State monopoly systems and ban on advertising.
![endif]>![if>
Different aspects of the Nordic policy instruments have been under attack;
import monopolies, retail monopolies and regulations on advertising.
This has lead to abolishment of exclusive rights of import and
rearranging of the retail monopolies so to abolish all forms of
discrimination of foreign goods. As a result of the confrontations
with measures of negative integration, Nordic alcohol policies
have been re-categorised, that is more loosely integrated policies
and policy components have become redefined or reframed against
the background of predominant EU patterns of substantive and procedural
standards. Certain elements of the state control system have been
abolished such as the monopolies on import, export, wholesale
and production. The elimination of these monopoly functions is,
however, not likely to reduce the political capacity for an effective
intervention in the alcohol control field to a substantive degree. The Nordic states have in other words adapted
their administrative organisation and instruments in the alcohol
control field in order to sustain the policy goals. The policy
mismatch between the EU and the Nordic states has led to a levelling
out of procedural mismatches in regulatory and administrative
arrangements, although vast differences in procedure still exist.
At the same time EU�s policy on alcohol control has developed
towards regarding alcohol consumption as a public health issue.
The trend in this sector may therefor well be a development away
from a policy mismatch towards a mismatch of procedures.
![endif]>![if>
There are also other examples of requirements of community law going directly
into the question of institutional administrative arrangements
in the Member states. This is notably the case in the so-called
liberalised sectors as for example the regulatory framework for
telecommunications markets. The energy market gives yet an example.
The situation in most member states before liberalisation measures
taken in the 1980�s and 1990�s may be characterised by the following
description taken from the gas-sector: �State interests were heavily
biased by the fact that energy policy in every sector was dominated
by monopolistic companies (often state owned) and regulatory authorities
which could articulate clear and strong interests within established
national paradigms�. This situation has been under attack both by
instruments of negative and positive integration. In these sectors,
the operation of both types of integration can be observed. As
a measure of negative integration, the Commission has initiated
proceedings against Member States maintaining exclusive rights
to import and export electricity and gas, claiming they are incompatible
with the EC-Treaty. As measures of positive integration we have
EU legislation such as Council Directive 91/296/EEC of 31 May
1991 on the transit of natural gas through grids and Commission
Directive 90/388/EEC of 28 June 1990 on competition in the markets
for telecommunications services.
![endif]>![if>
In the dismantling of the old regulatory regimes, community law goes quite
far into specifying administrative policy such as how national
administrations should be organised, to what tasks they should
attend and what procedures should be followed. The Commission
explicitly states in its Communication on Services of General
Interest: �Increasing European integration in certain sectors suggests a parallel increase
in European co-ordination for monitoring the activities of regulators
and operators. The appropriate institutional arrangements will
vary depending on the degree of market integration achieved and
the potential failures to be addressed, including in the performance
of existing national regulators� and Community involvement with
services of general interest goes beyond developing the Single
Market, including providing for instruments to ensure standards
of quality, the co-ordination of regulators and the evaluation
of operations.
![endif]>![if>
In line with this, the directive on transit of natural
gas article 21 requires the Member States to designate a �competent
authority, which must be independent of the parties, to settle
expeditiously disputes� and article 22 to �create appropriate
and efficient mechanisms for regulation, control and transparency
so as to avoid abuse of a dominant position�. Few member states
plan to establish independent regulators for gas, and a few want
sector regulators for natural gas as such. The majority is likely
to leave regulatory responsibilities in the hands of general energy
or common gas/ electricity regulators.
![endif]>![if>
Sectorial administrative requirements are not confined
to areas of competition policy. Another example may be found in
the environment policy. Directive 90/313/EEC on the freedom of
access to information on the environment requires the Member states
to provide freedom of access to, and dissemination of, information
on the environment held by public authorities. It contains provisions
on the procedure in cases about access to information and on judicial
review. Although a measure of sectorial politics, it is general
in its application and affects all branches and levels of public
administration.
![endif]>![if>
Also the rules of free movement may generate secondary
legislation of a general administrative nature. Most notably in
this category are the rules concerning the co-ordination of procedures
for the award of public contracts. These rules are based on the
premise that the treaty provisions on free movement entail not
only the abolition of restrictions but also the co-ordination
of national procedures for the award of public contracts. They
provide common rules for participation in public contracts, including
rules on drafting and publication of contract notices and both
qualitative selection criteria and criteria for the award of the
contract. In addition to influencing national procedures, the
legislation also specify the treaty provisions curtailing effect
on the possibility to pursue policy objectives through the participation
of public bodies in the market. Another way of seeing this is to say that the
rules demand an adaptation by public bodies to general economic
considerations when they demand goods and services from the market.
6.
Implications for administrative policy ![endif]>![if>
The pattern that emerges is twofold. On the one hand increased formal rationality
in protection of individual rights and implementation of Union
measures. On the other hand increased economic rationality and
market orientation governed by competition rules and prohibitions
against distortion of competition and the free movement of goods,
services, persons and capital. If we compare the basic pattern
that emerges from the described measures to for example the public
administration in the Nordic countries, mismatches of procedure
and administrative policy may be observed. I will take Norway
as an example. On the organisational side, Norway has a large
public sector, with extensive participation from the public sector
into economic activities. Norway, as the other Nordic countries
has been labelled a corporate society characterised by participation
of organised interest groups, specifically trade unions and business
associations in different levels of the administration. The border
between the public and private sectors is in this way blurred.
The tendency in the last decades has been towards management-oriented
reforms of the public sector.
![endif]>![if>
On the legal side, a typical trait of administrative law has been empowering
legislation with a wide scope for administrative discretion. Judicial
interpretation and review of the exercise of administrative power
has been based on teleological interpretation of empowering legislation,
with high emphasis on political intents expressed in the preparatory
material, in many instances contrary to literal readings of the
wording of the statutes. The political management and governing
of the public administration has to a large extent been exercised
through policy formulations in parliamentary reports and internal
administrative decrees. Safeguarding of individual rights has
been achieved through emphasis on transparency, collective and
individual participatory rights and rights of administrative review.
![endif]>![if>
The division of functions between public bodies and the social partners
in regulating for instance wages and working condition is another
area affected beyond the protection of individual rights. Community
legislation may be implemented through collective agreements provided
that the state enjoys powers and responsibility to ensure full
compliance. This means that in the Nordic countries, the state
has to engage in areas that traditionally have been left to the
domain of organised interests of management and labour.
![endif]>![if>
A first observation resulting from surveying the different aspects of Union
policy and community legal requirements towards the Member states,
is that the lack of competencies to pursue administrative policy
and to harmonise organisational and procedural administrative
law, has not precluded the Union from shaping the public administrations
of the Member states to a substantial extent.
![endif]>![if>
Seen together, requirements of safeguarding individual rights, implementation
and measures of negative and positive integration form a pattern
of requirements and restrictions on national administrative arrangements.
The most invading requirements are found within different measures
of sectorial policy. Of these, requirements of competition policy
are the most far reaching. From this perspective one could speak
of competition policy not as an example of sectorial politics,
but as a general obligation for national public administrations
to conform to community competition law. Generally this entails
separation of regulatory and economic functions and dismantling
of monopolies, exclusive rights and obstacles to trade that go
further than what is required to ensure the
operation of services of general economic interest (Article 86
EC).
![endif]>![if>
It seems easier to obtain Member State consent to administrative reforms
on a sectorial basis than on a general basis. Another factor is that when it comes to directives
that are enacted to enforce competition law on public undertakings,
Article 86 (3) grants the competence on the Commission exclusively.
For such reasons, influx from community law into national policies
of public administration seems to come indirectly and fragmented,
rather than as a result of a comprehensive EU policy on public
administration.
![endif]>![if>
Even though the amount of requirements stemming from
general and specific community rules seem impressive, the effects
should not be exaggerated. The principles formulated by the Court
of Justice are general and do as such not introduce totally new
or alien elements into the administrative law of the Member states.
Their application is also limited to situations where the Member
states implement and enforce Community measures or where they
exercise competencies to derogate from Community rules such as
the right to free movement in the market. It
should on the other hand be kept in mind that formal legal requirements
are not the only factors influencing the shaping of national public
administration policy. Other sources of administrative
approximation is the constant interaction among officials of Member
States and between the latter and those of the European Commission
and framing of domestic beliefs and expectations.
![endif]>![if>
A second observation is that although the Union is
shaping the public administration of the Member States, and thus
engages in administrative policy, this is a policy by default
and not by positive intent.
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The requirements stem from three different sources
in protection of rights, requirements of efficient implementation
and sectorial requirements of reorganising and adapting to competition
policy. Nevertheless, they at certain points converge. One point
of such conversion is the protection of rights of individuals
and submission of acts of administration to judicial review. As
we have seen, many of the more specific requirements of implementation
are grounded in the need to make individuals able to effectively
attain their community legal rights. This is the reason for the
requirements of clarity and of legal enforceability. The pattern here is
clear. There is an emphasis on implementation through formal rules.
Administrative arrangements based on powers of administrative
discretion; administrative procedures and internal rules are dissuaded
and in many instances do not suffice to serve as implementation
of community rules. Procedures and solutions that are transparent
to a national observer are not accepted as clear or unconditional
from a community perspective. Requirements of judicial review
may alter the balance between the administration and the judiciary,
in some instances creating new forms of judicial review.
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The requirements of implementation have implications that go beyond the
protection of individual rights. Many secondary legal instruments
are regulatory in nature and call for national legal measures
restricting private action. A general requirement is that such
measures are effectively implemented and enforced. The general
requirements of implementation are as a starting-point not so
invasive. There is however a shift in the implication of stressing
effective implementation. When implementation was about implementing
uniform rules of market integration, the implications of implementation
could be seen basically as endowing individuals with rights against
their national governments. Presently, community legislation is
increasingly about coping with the problems and constraints that
the integration of European markets has created for the Member
States in policy areas which, so far, have not been Europeanised
themselves.
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A third observation is that even though requirements from Community law
pull in two different directions at the same time, a comprehensive
policy of public administration may be made out. On the one hand
Union measures demand an increase in market orientation by separation
of regulatory and economic functions, and by harnessing the economic
functions under the restraints of competition law. This is specifically
the case in the fields governed by the competition rules and specific
legal measures concerning public undertakings and services of
public interest. Main traits here are separation of regulatory
and service-providing functions, safeguards and prohibitions against
distorting competition and adaptation to the market.
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On the other hand they demand a higher emphasis on formal legality, a downplay
of administrative discretion and requirements towards administrative
rules and procedures. Traditional legal values of the rule of law such as separation of powers, including emphasis on judicial
review of administrative measures and rechtsstaat such as proportionality and protection of legitimate expectations
are enforced to an extent that requires adjustments in many of
the member states.
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The two separate tendencies towards on the one hand market orientation
and on the other hand emphasis on legality and individual rights
can be recognised also in a broader international context. On
the one hand there are the reform processes taking part in the
context of OECD under the label of �Public Managment Reform�. On the other hand there is the development
of individual rights towards the government under conventions
and bodies for human rights. For this reason one may ask whether
the developments we see in EU administrative policy and influence
on administrative law in the Member states is but part of larger
international developments. Due to the legislative machine of
the Union and the surveillance and control excersised by the Commission
the effects of these international trends are probably stronger
and more concerted in the Member states that they would have been
without the push from the Union. We see this most clearly in regards
to the capacity building and administrative shaping taking place
in the applicant countries of central and eastern Europe. On the
other hand, the speed of the development and influence of a union
policy in this field may well be enhanced by the fact that it
is supported by more general international trends.
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The two developments need not be in conflict. Organisational and procedural
requirements may go hand in hand. On the one side there are organisational
requirements of separation of functions, where regulatory functions
are required to be separated from provision of services and management
of economic entities. On the other side, the regulatory functions
are governed by requirements of legality and procedural safeguards
to protect individual rights. The sum effect of such measures
on administrative policy is to submit regulatory functions to
an increasingly formal legal rationality and other functions to
an economic rationality. As we see from the directives on public
contracts, this extends beyond the way the public sector is organised
into the different functions that are performed. These directives
demand of regulatory bodies to conform to the logic of the market
when they operate as purchasers on the market.
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The pattern that emerges is, however, not completely pure. The requirements
based on a legal rationality extend beyond the public entities
that undertake regulatory functions. The prohibitions that the
treaty places on the Member states extend not only to public authorities
as such, but also to any body or entity that may be deemed to
be under the control of such an authority. The same is the case
for secondary legislation such as the right to access to environmental
information. Such control may be present by financial means, by
supervision or by appointment of influential members on an administrative,
managerial or supervisory board of an entity. The effect of this
is that some economic enterprises competing in the marked may
be subject to different rules than others, due for example to
their public ownership or ties to the public sector through the
financing of their activities.