Cases, Materials and Text on Judicial Review of Administrative Action (Hart 2019)

Administrative law, and specifically the law concerning judicial review of administrative action, has been regarded by doctrine until the second half of the twentieth century as a product of the national history and tradition of a state, and hence, because of the different national traditions, as an area in which there was, in general, little room for convergence. Apart from notable early exceptions, – von Stein [1870] and Goodnow [1903] come to mind -, there are only a few recent systematic comparative works on administrative law (and judicial review in particular): Jacobini’s and Piras’s books need to be duly noted for their contribution to the field of comparative administrative law. Yet, the exercise is often more one of a ‘juxtaposition’ than of a comparison (G della Cananea, 2018). The only recent work, that of describing the administrative law of some legal systems in a rather comprehensive way, is organized through country reports and adds only limited comparative analysis to the national reports. This paucity of research means that since Schwarze asked the question whether a ius commune of administrative law or of judicial review was developing in Europe (in 1996 and then again in 2006), no one undertook the task to probe it further.

Cases, Materials and Text on Judicial Review of Administrative Action aims to partially fill this gap. By adopting a functional comparative approach and presenting and comparing cases and other primary and secondary materials, it aims to examine different areas of judicial review in five European legal systems, in order to identify commonalities and differences amongst these systems, to analyze the impact of EU law on domestic judicial review, to explore whether there are convergences, and to discuss whether and to what extent a ius commune might be developing in this field. This functional method, which is line with the overarching approach of the Ius Commune book series, makes it possible to search for similarities and differences in dealing with comparable situations.

Furthermore, the case-based and therefore bottom-up approach chosen in this casebook makes it possible to uncover common general principles already present in the living law. It does not endeavor to formulate (new) rules and model principles. As does the top-down approach followed by other complementary comparative projects (such as Renueal).

Our casebook includes case law and other materials (legislative materials, international materials and excerpts from books or articles, when necessary) on the EU legal system, as well as the legal systems of France, Germany, the Netherlands, and England and Wales. Those materials relate, insofar as possible, to similar problems or situations in the various legal systems under study. The materials are accompanied by short introductory and explanatory notes to contextualize them. For all the important elements of judicial review, the case law and relevant materials are presented as excerpts and subsequently compared. The excerpts have been chosen on the basis of three criteria: because they explain the traditional way in which a legal system approaches a certain issue of judicial review; because they explain patterns of deviations from the standard or traditional approach; or because they explain how the standard or traditional approach has been modified under the influence of the EU legal system. At the end of each section, a comparative overview ties together the materials and puts the emphasis, wherever possible, on the influence of EU law on the legal systems examined and any convergence trends identified.

This casebook focuses on the concepts, principles and functioning of the law in practice as opposed to mere ‘rules’ in the books, and thus examines the various legal national laws in their concrete application. The casebook demonstrates how issues in administrative law can be solved in similar or different ways, as well as how and to what extent the national systems of judicial review have adapted to the European requirements, and to what extent they have converged under the European influence. The casebook thus shows the actual application of the national rules and actual influence of European law in real cases, not merely from a theoretical point of view. It shows, for example, a clear case of convergence under the pressure of European law in the field of interim relief, while the area concerning the procedural powers of the courts (such as the possibility to raise issues ex officio) still remain very different in the various legal systems examined. This makes it easier to position the concepts and instruments of the different legal orders, and to understand which solutions were chosen in a given legal order, and for which reasons.

The process of completing this casebook was not an easy one: the path has been frowned by considerable challenges linked not only to the selection of the relevant excerpts and thus the need to keep the enterprise and the book to a manageable size, but also linked to the methodological difficulties of legal translation and the sometimes difficult understanding of foreign legal systems. The multi-country nature of the team, and its overall familiarity with comparative law has, however, smoothened the process significantly. With this book, we hope to contribute to the accessibility in English of the law on judicial review of several European legal systems, as well as to the beginning of a conversation with comparative administrative lawyers across Europe and the world on differences and similarities between systems of judicial review and the influence of EU law thereof.

Posted by M Eliantonio, Professor of European and Comparative Administrative Law and Procedure (Maastricht University).

This piece draws on the introduction to the book, which is available in clicking here :Cases, Materials and Text on Judicial Review of Administrative Action – Introduction