Relative Authority of Judicial and Extra-Judicial Review

EU Courts, Boards of Appeal, Ombudsman

Michal Krajewski

• Publisher: Hart Publishing
• Year: 2021
• Print ISBN: 9781509947331
• eBook ISBN: 9781509947300
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

Do independent boards of appeal set up in some EU agencies and the European Ombudsman compensate for the shortcomings of EU Courts? This book examines the operation of EU judicial and extra-judicial review mechanisms. It confronts the formal legal rules with evolving practices, relying on rich statistical data and internal documents. It covers detailed institutional arrangements, the standard of review, the types of cases and litigants, and the activity of the parties in the process. It makes visible the diverse but complementary ways in which the mechanisms enhance the authority of EU legal acts and processes. It also reveals that scarce resources and imprecise rules restrict the scope of review and hinder independent empirical investigations. Finally, it casts light on how a differentiated system of judicial and extra-judicial review can accommodate various kinds of technical and political discretion exercised by EU institutions and bodies.

1

Introduction

I.Overview of the Book

This book investigates how extra-judicial review contributes to the authority of law-, rule- and decision-making by EU institutions and bodies. Extra-judicial review is performed at the EU level by boards of appeals, set up in certain agencies, and the European Ombudsman, as well as some other bodies and mechanisms. Most EU legal scholars and practitioners focus on the EU judicial review, which epitomises the ideal of the rule of law, despite its persistent shortcomings, such as fluctuating thoroughness and limited accessibility for private parties. This book casts light on extra-judicial review capacity to frame and constrain the discretion of EU institutions and bodies, and minimise the risk of arbitrariness, thereby supplementing the EU judicial review. It seeks to further the scholarly debate by embedding the judicial and extra-judicial review in the context of manifold institutional and procedural models for implementing the rule of law, and the empirical and normative epistemic uncertainty underlying contemporary EU law-, rule- and decision-making.

The EU Courts have been encountering difficulties in meeting elevated expectations voiced by scholars and litigators due to the expanding regulatory field of the EU and an ensuing increase in the scientific, technical and political intricacy of legal acts and decision-making processes. In reaction to that, extra-judicial review mechanisms – such as the Boards of Appeal (BoAs) and the Ombudsman – have emerged and proliferated. Over time, these mechanisms have improved their working methods and expanded their impact. However, we still know relatively little about their practical operation and their exact relation to judicial review. This book seeks to fill this gap. It collates sundry qualitative and quantitative data to confront the practical operation of EU judicial and extra-judicial review mechanisms, making visible the interplay of their legitimacy assets and weaknesses alike.

The book argues that the authority that the EU judicial and extra-judicial review mechanisms bestow upon law-, rule- or decision-making is relative to specific institutional and procedural features of these mechanisms, and their practical operation.¹ Although often idealised by lawyers, the EU judicial review’s legitimacy assets are restricted by this mechanism’s institutional and procedural design. Devised in the 1950s to ensure uniformity in the application of EU law and legal protection to a relatively narrow circle of economic operators, the EU judicial review nowadays faces growing challenges. Many scholars and practitioners argue that it should open up to claims by social actors and civil society, and that it should strive at comprehensive scrutiny of diverse, convoluted and disputable empirical and normative appraisals underlying EU legal acts. We should not overlook that extra-judicial review mechanisms can deliver surprisingly strong legitimacy assets, capable of filling some gaps in the EU judicial review. At the same time, they replicate some of the judicial review’s weaknesses. Problems are due to under-determined competences, procedural frameworks and insufficient resources.

Nowadays, significant challenges constitute legal acts underpinned by epistemically uncertain empirical and normative appraisals in fields such as the regulation of chemicals, pharmaceuticals, food safety or financial supervision. In such cases, there is often no single correct or wrong answer to a scientific or technical question (empirical uncertainty). Moreover, the applicable law does not offer clear guidance regarding a priority or balance of clashing private or public interests (normative uncertainty). Legal acts and processes entailing different kinds of epistemic uncertainty may necessitate different models of review. A prior engagement of a specialist BoA equipped with tailor-made institutional resources or a more deliberative and persuasion-oriented inquiry led by an ombudsman might achieve goals beyond the capabilities of courts. An explicit articulation by the EU law-makers of the envisaged role of extra-judicial review mechanisms, attuned to their specific legitimacy assets which add to those offered by the EU Courts, may be a viable alternative to an expansion of the one-size-fits-all judicial review.

The book examines detailed and up-to-date qualitative and quantitative data relating to the practical operation of the Article 263(4) Treaty on the Functioning of the European Union (TFEU) action for annulment brought by private parties,² and two extra-judicial review mechanisms: the Board of Appeal of the European Chemical Agency (ECHA BoA) and the European Ombudsman. It specifically explores their independence safeguards and organisational resources, review techniques, case outcomes, litigation patterns and procedural tools for interaction with the parties. The book draws from a vast array of fragmentary sources, scattered across the respective review bodies, to explore and systematically compare their practices. In particular, the analysis relies on a unique dataset relating to the litigation before the different review bodies closed in the five-year period 2014–18. It also examines a wide range of public or internal documents, the latter obtained through access-to-documents requests (preparatory works, reports, memoranda, procedural guidelines or case files). Moreover, the book draws from insights collected through a series of semi-structured in-depth interviews with EU judges and their référendaires, agency and Ombudsman staff, carried out in 2017–20 in order to enhance the author’s understanding of the day-to-day operation of the respective mechanisms. Table 1.1 provides an overview of methods and sources employed in the book, on top of the doctrinal analysis of relevant legal provisions and case law, to reveal, compare and evaluate the examined mechanisms’ practical operation.

Table 1.1 Overview of methods and sources regarding the practical operation of review mechanisms

Feature/mechanism	EU Courts	ECHA BoA	Ombudsman
Independence		Internal documents regarding administrative arrangements
Powers	Quantitative analysis of the rate of successful actions	Quantitative analysis of the rate of successful appeals	Quantitative analysis of the rate of settled cases and findings of maladministration
Accessibility	Quantitative analysis of the types of litigants and cases
Procedural activity of the adjudicators and the parties	Internal procedural statistics and guidelines	Audio recordings of oral hearings, travaux préparatoires of procedural rules	Internal procedural guidelines, case files and documents from consultations of recent procedural reforms

The book is addressed to scholars and practitioners interested in the operation and challenges encountered by the EU judicial and extra-judicial review mechanism. It offers useful material for practitioners, facilitating a deeper understanding and critical evaluation of the institutional arrangements and procedural law of the EU Courts, BoAs and the Ombudsman. Institutional arrangements and procedural law are often conceived of as no more than technicalities aimed at efficient proceedings. However, this book makes visible that they play a crucial role in enhancing the authority of legal acts subject to review and, consequently, the authority of the whole EU governance structure. This way, the book adds a theory-laden and comparative layer of analysis to voluminous and practice-oriented guidebooks of EU procedural law.³ Hopefully, its insights could prove relevant in ongoing discussions regarding the EU judicial and extra-judicial architecture.⁴

The book takes stock of the existing experiments with extra-judicial review mechanisms and provides a framework for analysing their future role. It joins an emerging scholarly discussion about the role of the BoAs,⁵ the ongoing discussion regarding the added value of the Ombudsman,⁶ and the long-standing discussion regarding the accessibility and thoroughness of EU judicial review. Thus, it seeks to further the debate on the legal protection of private parties at the EU level.⁷ The current debate seems somewhat deadlocked, reiterating the well-known arguments of the ‘rule of law’ and ‘effective judicial protection’. The postulated opening up of the EU Courts to social actors and civil society has never materialised. Inconsistencies in the intensified standard of judicial review stir doubts about the ability of generalist EU judges to review technically or scientifically complex legal acts. This book makes visible alternative ways to tackle the problems that have remained under-explored.

Finally, the book contributes to the recently revived debate in EU administrative law regarding the ability of law to frame and constrain discretionary power. This debate has been revived due to competence shifts between the Member States, the EU and other transnational bodies in the aftermath of the 2008 financial crisis, and the expanded EU regulation of risks to public health and the environment.⁸ These shifts entail decision-making in the context of ineluctable socio-economic, scientific, technical and political uncertainty. A meaningful debate about EU law’s capacity to constrain and orient political and administrative discretion cannot refrain from analysing the nitty-gritty of different institutional and procedural models of review mechanisms.

II.Beyond the Judicial Paradigm

For public law scholars, courts epitomise the rule of law, an idea which has to do mostly with constraining discretionary powers and minimising the risk of arbitrariness. Article 19(1) Treaty on European Union (TEU) ascribes the function of the ultimate arbiter of EU legality to the EU Courts: the Court of Justice (the ‘ECJ’) and the General Court (the ‘EGC’).⁹ The ideal of the rule of law at the EU level has been equated with the right of court action against potentially unlawful legal acts of EU institutions and bodies. It is no surprise that one of the most popular themes in the EU constitutional and administrative law scholarship has been the EU Courts’ legal and practical ability to supervise any typical or novel forms, instances and aspects of law-, rule- and decision-making.¹⁰

Scholars and practitioners have mostly been concerned about the inaccessibility of the Article 263(4) TFEU action for annulment.¹¹ Advocate General Kokott has proclaimed the interpretation of this article to be ‘one of the most contentious issues in EU law’.¹² The annulment action is considered to lie at the core of the EU system of legal protection.¹³ It enables private parties to trigger the judicial review of unfavourable and potentially unlawful EU legal acts.¹⁴ This avenue has always been primarily accessible to individual economic operators, notwithstanding that EU legal acts may indirectly affect a variety of third parties and society in general. The Article 267 TFEU procedure for preliminary references by domestic courts regarding the validity of EU legal acts does not in practice seem to constitute a satisfactory alternative for industry associations, trade unions, public interest organisations and other social actors. Legislative and regulatory acts of general application, in particular, may consequently turn out to be immune to judicial control.¹⁵ It is also argued that the inaccessibility of EU judicial review to social actors slows down or hinders development of common constitutional standards in certain areas, such as fundamental social rights.¹⁶

What is now Article 263(4) TFEU, governing private parties’ access to the EU judicial review, was subject to several constitutional revisions. These revisions only insignificantly broadened the direct access of private parties to the EU judicial review, at least from the perspective of the kinds of interests represented by the litigants.¹⁷ As this book will demonstrate, the EU Courts in the annulment procedure are most often requested to protect private interests of individual economic operators. They are unlikely to assume a more activist role of public interest watchdogs of EU institutions and bodies, despite the expectations of a part of legal scholarship and civil society.

Scholars and practitioners have also been concerned about the fluctuat...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• 1. Introduction
• 2. The Shortcomings of EU Judicial Review
• 3. The Bits and Pieces of Review Mechanisms
• 4. Judicial Review: Justice and Efficiency
• 5. Administrative Review: Cheaper, Quicker and More Thorough?
• 6. Ombuds-review: Justice without Binding Powers
• 7. Conclusions
• Bibliography
• Index
• Copyright Page