Abstract
This article provides an overview of the scholarship in comparative administrative law in Europe, starting with general trends in the field and then reviewing systematically the key topics covered in the scholarship devoted to public administration and judicial review of administrative action. It concludes by offering some suggestions about an agenda for future research.
Keywords
Introduction
Administrative law in Europe has been closely connected to comparison and scholarly exchanges across borders since the late 19th century, starting with administrative law giants: Otto Mayer's French Administrative Law 1 preceding his German Administrative Law, 2 Gneist with his German perspective on English administrative law 3 and the discussions between Dicey and Hauriou on the (non-)existence of administrative law respectively in England and France. 4 In those cases, foreign law was used to spark the development of new ideas in one's legal system. Comparative law understood as the exposition of different administrative systems and their laws in Europe was, at the outset, the product of an American perspective on Europe: that of Frank Goodnow with Comparative Administrative Law: An Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany (1893). After this initial interest, however, over the 20th century, comparative administrative law ebbed. 5 As the administrative state entered a period of retreat under the pressure of neo-liberal and public management discourses, comparative administrative law in Europe entered the shadows. However, since approximately 2010, scholarly works in this field have flourished anew, 6 following in particular the Yale project directed by Susan Rose-Ackerman and Peter Lindseth. 7 The publication of the Oxford Handbook of Comparative Administrative Law 8 in 2022 confirms this trend, with a section dedicated directly to a number of European traditions (Anglo-American, French and German) and chapters including a European dimension, if not a direct European comparison. The comparison between the USA and European systems is thus well alive, although it is now more one-sided in the sense that Europe-based scholars are more interested in comparing their systems with the USA 9 than the other way round. 10 In short, comparative administrative law in Europe is as lively as ever, as this contribution will illustrate.
Administrative law is a challenging field for comparison on three counts at least: first, it has been very much connected to national histories and remains very much so despite efforts in the scholarship to develop the idea of global administrative law; 11 second, it is challenging for scholars to have a detailed and up-to-date technical knowledge of a large number of administrative systems at once; 12 third, the definition (as well as existence and scope) of administrative law can be distinguished between two different approaches to the field – one revolving around public administration and one revolving around judicial review. 13 This overview will follow this distinction.
Because of the potentially endless extent of comparative administrative law in Europe, our contribution is limited to the most salient features that can be extracted from the scholarly literature mostly published in French, English and German. We have also tried our best to include literature published in Dutch, Italian and Spanish 14 – though with no guarantee of representativeness in those languages – to show the diversity and liveliness of this topic and to point towards either specific pet topics and under-researched areas or to prompt curiosity from the reader to double check the information. 15
This article starts with an overview of the general trends in comparative administrative law in Europe (section 2), and key discussions in the field of public administration (section 3) and judicial review (section 4), before closing with some suggestions for future research (section 5).
General research trends in key projects on comparative administrative law
While the study of public administration falls within the purview of political/administrative sciences in Europe, it does so less exclusively than in the USA, leaving ample scope for lawyers to embrace it, so much so that a diverse body of comparative law literature is available. Four different types of comparative law scholarship can thus be distinguished. The first type of work focuses primarily on methodological questions. 16 The second one builds on the approach already adopted in the late 19th century by Goodnow and analyses (more or less) systematically key features of a number of national administrative systems. 17 Also following the major works of the late 19th century where a foreign administrative system was thoroughly presented by an outsider expert, the third type of work features an analysis of the French system from an English perspective, 18 or of the German system from a Common Law 19 or French 20 perspective. 21 Dating back from the 1980s and often – though not always – focusing on a number of key jurisdictions, the fourth type includes comparisons across national administrative law in Europe from the perspective of the EU integration process, 22 sometimes discussing the techniques EU integration relies on, 23 and sometimes analysing the resistance to this integration. 24 This type of work asks how the EU integration process influences national administrative law, 25 or conversely how EU law can build on and learn from the commonalities 26 and differences among the administrative laws of its Member States, 27 or alternatively how far national administrative law is useful to understand the specific legal and administrative construct that the EU is. 28
Across these last three different types of scholarship, the main questions revolve more or less explicitly around changes, 29 convergence, 30 inspiration and influence, 31 the possibility of transplanting legal concepts and instruments, 32 interactions between law and society, the existence of common core principles, 33 the effects of European integration on domestic administrative systems, 34 the development of an integrated European administration from top to bottom, and thus the development of a European administrative space and methodology pertaining to European 35 or global 36 comparative administrative law.
An important driver for comparative administrative work is the need to consider administrative reforms at either the national or European level. Examples of official reports relying on comparative analysis abound. In the UK, projects leading to the establishment of the Ombudsman 37 and seeking to reform the UK civil service 38 can be mentioned. In France, the Conseil d’Etat published for a long time foreign contributions in its annual reports and now has a specific unit to proceed with comparative analysis and provide it to the judges. 39 There has been a shift of approach over the years, however: in an earlier period, as mentioned by Rivero, the use of comparative law by the Conseil d’Etat was an attempt to spread the French model; 40 now it is done more in the spirit of dialogue and information about other systems. 41 In this vein, schemes to exchange staff or organize professional visits with the French Conseil d'Etat are now developed. Parliamentary assemblies also rely on comparative studies either thanks to institutional units such as the French Senate 42 or on a more ad hoc basis such as the Dutch Parliament. 43 Moreover, reforms through the EU accession process have also relied on comparative administrative law such as the papers produced by the OECD under the Sigma capacity building programme. 44 Finally, the Reneual network 45 provided extensive comparative analysis in a – so far unsuccessful – attempt to contribute to the adoption of a Regulation on an EU administrative procedure act. 46
This lively comparative work is developing around an extended epistemic community, facilitated through specific research centres drawing doctoral students for research visits, 47 or the organization of joint doctoral events. 48 European funding has supported this thriving community, with major European Research Centre funding for the common core project led by della Cananea, building on diachronic 49 and Trento 50 methods 51 and for a public management project studying administrative tools and procedures under the lens of an American perspective and led by Radaelli, 52 for instance. Other thematic funding has supported comparative research on procurement, 53 language and administration 54 or soft law and its use by national administrations and courts. 55
This community has developed a diversity of publication channels, such as the country reports published in European Public Law or the newly launched French Yearbook of Public Law or the comparative articles published in the Review of European Administrative Law, the German Law Journal or the Italian Journal of Public Law. Particularly noteworthy is the Revue Française de droit administratif, which publishes regular overviews of developments in other administrative systems (in particular Germany and Italy) and started to publish reviews on foreign books under the coordination of Anne Jaquemet Gauché in 2023. This epistemic community gathers in some way or another at events such as the annual ICON-S meetings, the annual meetings of the European Group of Public Administration (in its stream law and administration 56 ) or the International Congress of Comparative Law every four years, with topics having ranged from public-private partnerships, 57 to regulatory powers of independent agencies 58 and to administrative silence. 59 In addition, an annual meeting of comparative administrative law has been held in Aix-en-Provence (France) since 1978, with the proceedings published in the Annuaire européen d’administration publique. It is currently organized by Delphine Costa, on a dedicated theme that is selected each year to follow key topical developments. This usually covers European countries such as Belgium, Italy, Germany, Greece, Luxembourg, Norway, Spain, Switzerland, the Netherlands, the United Kingdom and even beyond Europe, with regular representatives from China and Japan. Finally, academic networks have developed in specific areas, such as in the environment, 60 public procurement and public contracts. 61
Public administration
The comparative administrative law scholarship pertaining to public administration can be divided into five main categories depending on its main focus: key administrative organizations and organizational design; administrative tools and techniques; administrative activities; administrative principles; and policy areas.
Under the first category – that of organizational design/administrative organization 62 – one finds comparisons pertaining to the civil service in Europe, 63 to local government, 64 to regulatory agencies, 65 to externalization 66 and outsourcing 67 as well as to ombudsmen. 68
Under the second category – that of administrative tools and techniques – one finds several works pertaining to the use by the administration of its discretion, 69 how administrative procedures 70 frame this discretion, 71 their complexities, 72 deficiencies 73 and codification, 74 and how new techniques such as soft law 75 or digitalization shape and amplify administrative powers. Two specific administrative situations are also under comparative examination: administrative silence 76 and administrative sanctions. 77 A significantly under-researched area here is that of the mechanisms of revocation and withdrawal of administrative acts. 78
Under the third category – that of the economic dimensions of administrative activities 79 – one finds a wealth of research dedicated to public contracts in general, 80 and under their many dimensions of general principles, 81 public-private partnerships, 82 concessions, 83 procurement procedures, 84 contractual performance, 85 remedies in procurement, 86 corruption and conflicts of interest in contracts, 87 or liability in the course of procurement. 88 This rich literature contrasts starkly with the disappearance of comparison pertaining to public services – which was once relatively lively 89 – and the paucity of comparison in fields immediately connected to public contracts such as public finances, 90 public property 91 or the allocation of scarce resources. 92
Under the fourth category – that of administrative principles 93 – a broad array of comparative research has been carried out that can be divided into three main subject matters: first, some works focus on specific principles such as the principle of good administration either at the level of the Council of Europe 94 or within the European Union, 95 and related principles such as the duty to give reasons, 96 proportionality, 97 transparency 98 or legitimate expectations; 99 second, some works analyse the impact of new principles linked to new public management and governance (such as efficiency, audit or accountability 100 ) across national administrations; 101 and third, the pressures on the rule of law across Europe have led to more attention to the rule of law from comparative administrative law scholars 102 although twin ideas such as the principle of legality 103 and administrative liability 104 have long been thoroughly studied by comparative administrative lawyers.
Under the fourth category – that of policy areas – comparative studies are done in a quantitative manner for assessing the implementation of the cohesion policy 105 or for the internal market scoreboard (developed by the European Commission to monitor how the EU Member States implement the internal market and their enforcement tools) in some fields, such as procurement 106 or responsive administration for establishing a new venture. 107 More analytical and qualitative research is carried out for policy areas such as the economy, in particular in relation to the much-debated service directive, 108 the level of liberalization of competition and economic regulators 109 or various sub-fields of environmental policies, such as the national implementation of the Aarhus induced requirements 110 and other procedural requirements. 111 In those cases, the comparison is more specialized and does not extend to the principles of general administrative law, which can cause challenges in terms of extrapolation, but can also shed more detailed light on cultural and systemic balances specific to a given administrative system.
The main drivers for this type of research are diverse. First, it may be that a specific EU instrument has been newly adopted, is controversial or is under revision, such that a stock-taking exercise is perceived to be useful from a comparative perspective. Second, a CJEU case may trigger comparable questions under some types of administrative systems. 112 Third, a very specific problem or plans for reforms in one country may lead scholarship to appraise anew the state of things thanks to a comparative inquiry.
Five features emerge from this brief overview of the comparative research on public administration – under the understanding that there is a risk of over-generalization in seeking to identify such trends across widely different approaches and topics. First, this research is, by reason of its extent, rarely systematic across all EU Member States. This means that often smaller states – in particular Luxembourg, Ireland, the Baltic countries, Denmark, Czechia and so on – are often left outside the scope of the comparison, especially if there is no obvious expert who speaks English, French or German in those countries. For instance, the Manuel de droit comparé des administrations européennes 113 covers Spain, Italy, Germany, the Netherlands and the United Kingdom. This means that the challenges encountered by some administrations – often the smaller ones – are not included in the reflection about the development of a European administrative space and its specificities. Equally the comparative literature available in English, French or German and devoted to former Central and Eastern European systems and the Balkans is limited. 114 Second, although most of the works mentioned above have a clear European focus, they often include the analysis of non-EU member states – in particular the USA 115 – to offer a contrast, and broaden or nuance the lessons to be drawn from the comparison. Third, as systematic comparative administrative analysis is challenging, the works mentioned above can be broadly divided into two main categories – they tend to offer either a large scale / macro comparison, often relying much on the law in the books, or they tend to narrow their focus to a small scale full of intricate nuances, making extrapolation difficult. Fourth, our overview – even if only approximative – reveals some pet topics (such as public contracts) while other topics are left under-researched (e.g., the interface between administrative law and criminal law in general 116 ). Finally, there is barely any systematic comparison at the sub-national level for federal countries. 117
Judicial review of administrative action
If comparative works on administrative law in general were not abundant until the end of last century, this is even more the case when zooming in on comparative research on judicial review of administrative action in particular.
Beyond some exceptions, 118 in some cases tackling specific issues of judicial review, 119 the first comprehensive works on comparative judicial review started to appear in the 1970s. 120 Taking a true ‘comparative’ approach (i.e., beyond the mere ‘juxtaposition’ of legal systems), 121 the volume of Auby and Fromont long remained the only volume of its kind, until the Casebook on Judicial Review of Administrative Action appeared in 2019. 122 In the meantime, however, other – less comparative but more comprehensive – endeavours were undertaken, including perhaps the most extensive work on administrative justice in the last two decades of the 20th century: the collective work on Administrative Law: the Problem of Justice. 123 Nevertheless, one cannot escape the conclusion that comparative works on judicial review of administrative action remained a relatively niche topic until the turn of the millennium, even within the already rather niche branch of comparative administrative law.
With the increasing influence of EU legislation, but also, more importantly, the case law of the CJEU, a strand of comparative works related to judicial review started to emerge, with the aim of assessing the process of ‘Europeanization’ and possibly of the convergence of national systems of administrative justice in Europe. These works have remained, however, limited in terms of either the legal systems compared, 124 or the coherence in the comparison between legal systems. 125 Recently, new comparative work has been carried out on the impact of specifically Article 47 of the Charter of Fundamental Rights pertaining to the right to effective judicial protection (although the comparison is not limited to administrative courts), 126 and on the adjudication of a specific piece of EU legislation (i.e., the Habitats Directive) in several EU legal systems. 127
Meanwhile, in the last 10 years, a wealth of comparative works on judicial review has seen the light of the day. Some works have tackled ‘classic’ topics of judicial review from a comparative perspective, such as the structure of models of administrative justice, 128 standing rules, 129 the control of administrative discretion, 130 as well as rules and principles of administrative decision-making procedures 131 administrative silence, 132 the indirect review of administrative action, 133 the rules concerning the voidness or voidability of administrative acts 134 and the liability of public authorities, 135 including in a historical perspective. 136 Other comparative works are instead more general in nature but contain aspects related to judicial review. 137 Worth highlighting are several chapters in the above-mentioned Oxford Handbook of Comparative Administrative Law, 138 and Comparative Administrative Law collections, 139 which offer comparative observations on various topics of judicial review. Also the Oxford Handbook of Administrative Justice deserves a special mention, as it contains a comprehensive set of reflections on the topic, although these are not always comparative in nature. 140
Finally, although the focus of this contribution is on Europe, it should be noted that increasingly more comparative work on judicial review of administrative action is carried out to encompass non-European jurisdictions. 141
A research agenda on comparative administrative law
From the previous sections, we can conclude that, after a period of relative silence, comparative administrative law in Europe seems to have experienced a renaissance since the turn of the millennium and is an ever-expanding, broadening and deepening field of analysis. In this wealth of recent research endeavours, a positivist approach to ‘law and administration’ 142 appears to have been traditionally predominant, despite the obvious connections of administrative law with political sciences, history, sociology of organizations and to a lesser extent economics that feature in part of the works mentioned above to varying degrees.
Different avenues for future research can be signposted, although the main question remains the starting point for any comparison – why do we want to compare in the first place? For inspiration, for understanding, for importing, for exporting, for adapting to changes, for conceptualizing, for collecting information, or something else? What is the benefit of exhaustivity, selection, inclusion and diversity? How far in the past do we need to reach out to understand the current situation and how stable might the current situation remain in the future?
Bearing in mind these cautionary general questions, contemporary public administrations in Europe face numerous challenges – such that one avenue for future comparison might be called ‘challenge-led’: it would start with the identification of the most pressing challenges for administrative systems in Europe, such as threats to democratic pluralism and low social/political compromise, resistance to facing the hard social, economic, political and environmental reality and its conflicting truths, such as in the case of climate change, the ageing population, maintaining a sustainable level of healthy workers, the growing inequality among a population with very diverse needs and means, growing social injustice, threats to physical security and social wellbeing, digitalization and AI used in the administrative realm and the need for strengthening administrative coordination across countries and regions and across policy areas (e.g., taxation, social security, health care). Across those challenges, what role does administrative law play in European countries? To what extent is this similar everywhere? Why (not)? Could the answers provided be different? And how different?
All these questions lead to reflecting on the countries under comparison (including countries seen as peripheral and not core to the European project), the micro or macro level of the comparison and the interactions between constitutional and administrative law and between public administration and judicial review. Key in these questions remains the ability to communicate across linguistic communities. While translation based on AI opens new doors here, communication does not mean merely access to legal texts in a language one understands, but also properly locating the meaning of concepts and techniques within their social, economic, political and legal contexts, so that communication goes beyond formal access and extends to substantive access and respectful exchange between equals. In this respect, the identification of facilitators for comparative endeavours (places, institutions, individuals, funding etc.) is crucial. In the vein of decentring comparison, attention needs to be paid to a better understanding of regional integration and its contribution (e.g., Benelux or Nordic Association) and the EU Neighbouring policy and associated partnerships and their actual administrative reality in the respective countries. This also leads to reflecting upon the need to develop distinct methodologies for comparing EU countries engaged in administrative interactions underpinning a multi-level form of governance across the EU administrative space, for comparing the EU and individual European states with non-EU countries above and beyond general principles, and for comparing individual European states with administrations sharing a longer (even if complex) administrative tradition outside Europe. This leads back to the objectives of the comparison, where convergence and/or pluralism may have a more or less attracting force. This also opens up the entry points in comparison, not limited to a vertical top-down approach, but including various expressions of horizontal and bottom-up perspectives.
In comparing administrative answers to the current political, social, economic and environmental challenges across European administrative systems, the researcher might find that a positivist approach to the law yields only limited results. The research investigations could be enriched thanks to an ever broader and deeper dialogue across disciplines (both methodologically and substantively) 143 and an accountable collaboration between academia, state officials and citizens. Indeed, comparative work is not immune to too-cosy relationships between scholars and practitioners, 144 yet it needs to understand how things work (or not) on the ground in the different administrative systems to stay relevant. Establishing clear and reliable communication channels between scholars and practitioners, while maintaining a critical distance might require developing ethical principles of mutual expectations. The stakes are high as some administrative systems could be difficult to reach for academic outsiders. However, questions asked by outsider experts can be most helpful for insiders for reflecting upon their own systems and underpinning assumptions. In short, the future of comparative administrative law in Europe needs to be open to engaging with wider discussions, and building pathways and processes for strengthening collaboration, iteration, experimentalism and incrementalism beyond law and beyond academia, so as to provide tools to address the major political, social, economic and environmental challenges that European states currently face.
Overall, comparative administrative law has gained increasing prominence over the last 15 years or so, generating its own sub-fields and research questions. As European states, the European Union, the Council of Europe and the NATO are facing new political, social, economic and environmental challenges to their existence, organization and objectives, comparative administrative law is more than ever needed to smoothen dialogue, mutual trust and a constructive future together respectful of human dignity, pluralism, good governance and judicial protection.
