Administrative Law in the European Union: Legitimate Expectations and Legal Certainty - Essay Example

Administrative Law in the European Union: Legitimate Expectations and Legal Certainty Introduction The ECJ has observed in its case law that the principles of safeguarding of legitimate expectations and legal certainty form “superior rules of law.” Under Articles 288 EC (ex-Article 215 EC and Article 230 EC (ex-Article 173 EC), the breach of these principles is permitted as they form part of the Community legal order. Maenpaas viewed that the safeguarding of legitimate expectations has been important in the following pretexts in particular: When an individual attempts to assess the criteria of termination of an administrative act and try to recoup payments or advantages footed on an administrative act made by the public authority. When one attempts to evaluate the grounds for the retroactive impacts of an administrative act.1 This research essay attempts to define the concept of legal certainty, the retroactive and the legitimate expectations under the EU administrative law in detail. This research essay will also make a best effort to deliberate about the European Court usage of legitimate expectations to enforce a minimal standard of treatment for individuals without infringing the public interest aims in administration. Legitimate Expectations Legitimate expectations inflict a responsibility to perform fairly, to respect reasonable expectations raised by the demeanour of a public authority. Protectable interest may demand procedural fairness since the verdict or the decision may jeopardise the applicant’s interest irrespective of the previous demeanour of the public authority. The safeguard of legitimate expectations offers consistency and certainty in administration, which is divergent from the infliction of procedural fairness to a decision which may impact an individual’s concern or interest. 2 Legitimate expectation deals with the affiliation between the individual and the public administration. It tries to solve the fundamental conflict between the desire to safeguard the individual’s faith in expectations raised by administrative demeanour and the necessity for administrators to practice changing policy objectives. This doctrine connotes the anticipations raised as a result of administrative demeanour may have legal ramifications. Either the administration must honour those anticipations or offer compelling reasons why the public interest must take precedence. This doctrine, therefore, deals with magnitude to which an individual’s anticipations may be protected in the background of a change of policy, which tends to sabotage them. Further, it is the duty of the administrative court to decide the degree to which the individual’s anticipation can be adapted within the changing policy objectives.3 The safeguard given to legitimate expectations, a standard which is the key to EU administrative law is directly linked to the concept of the legal certainty. It concerns with a scenario that participants in the market trust that a given factual constellation or legal fact remains the same or develops into a direction provided by law. Since 1970’s, the European Court of Justice has incorporated legitimate expectations into its evaluation of legality and acknowledges that it “form part of the Community legal order”. 4 For instance, in the Westzucker case, the finance court of Hesse made a request for an initial reference from the European Court requesting whether a regulation violated “a principle of legal certainty by which the confidence of concerned individuals deserves to be safeguarded. In reply, Advocate –General replied that the issue of a license could establish an anticipation which, if the administration changed the scenario, would be infringed, thereby ending in a loss for that individual. Citing to a verdict of the Federal Constitutional Court, the Advocate-General informed that the change of scenario demands a “counting upon the individual interests” since any meddling with an individual’s anticipation could only be granted if public interests predominate.5 Legitimate expectations can be well explained through the Mulder case. This case law involved a row over the scheme of milk production in the European Community. To regulate the oversupply in the milk sector, all the milk producers made to undertake to suspend the production for five years. Mulder was a Dutch farmer who made an undertaking to stop milk production for five years in 1979. At the close of this moratorium, he intended to restart the milk production and hence, applied for a “reference quality” as per the existing scheme. However, this was turned down, as he had not produced any milk in that reference year. Mulder claimed that the reference quality scheme infringed his legitimate expectations. The European Court held that a producer who had given up and later want to restart milk production could not anticipate the same market conditions as existed when he had given up the production. It was not legitimate to anticipate that such milk producer would not be subject to any structural or market policy introduced in the meantime. 6 Whether a notice or guideline has generated a legitimate expectation which have been will depend upon its wording or nature as illustrated by case law on state aids. In Jissel-Vliet, it was held that Commission guidelines which had been constructed into a Dutch aid scheme were binding upon the authorities. In CIFRS case, the ECJ was prepared to acknowledge that the Commission was committed by the terms of its policy structure.7 Legal Certainty In European administrative law, it is an essential corollary to legality that law has to be unambiguous to permit every individual to discern what his obligations or rights are. In other words, in European parlance, legal certainty connotes the prohibition of some types of decisions-making in some cases. One another significant factor in legal certainty is the requirement of time limits to legal suits for the sake of reliability of expectations. In Emmott’s case, the plaintiff cited a non-discrimination directive in social law affairs that had not been incorporated into Irish law. She footed on the directive but the suit was rejected because the time limit to bring legal proceedings had run out. It was held by the ECJ that the time period could not commence to run before the directive was reversed into internal law. It is to be observed that beneficial aspects of Community law could be prejudiced if time limits could preclude an action even before the beneficiary had the chance to comprehend their privileges.8 Non –retroactivity Non-retroactivity, like legitimate expectation, is also associated to legal certainty. A law is assumed to be non-retroactive, unless there is an unambiguous provision which would substantiate an alternate perception. However, this is not an absolute principle. Whenever, the principles of legitimate expectations are not violated, and where it is essential to accomplish its goal, a measure may be retroactive. In case, R v. Kent Kirk9, there was no such expectation. In this case, Kirk, a Danish fisherman, was fined by an English court for fishing in the English territorial waters on 6 January 1983. He appealed against the verdict on the ground that on 31 December 1982, the intermediary rules about fishing, passed in the 1972 Act of Accession when UK accessed the EU Community, had run out. It was held by the European Court that it was impossible to rely on retroactive EC measures as a way of honouring national measures that were illegal at that point of time. 10 Supreme Court of Austria is at times swift to disregard the application of ‘europeanised ‘international agreements to sets of facts, which happened before the accession of Austria into EU. A judgment of the Administrative Court is the case point here with regard to the Cooperation Agreement between Tunisia and EEC. In this case, a Tunisian student was deported for operating a taxi cab without a requisite permit. He made a request to refer the case to ECJ as it flouting the terms of Cooperation Agreement between Tunisia and EEC. The Administrative Court, however, refused to refer the case that challenged the decision dated from the point of time before accession of Austria.11 Conclusion Legitimate expectation deals with the affiliation between the individual and the public administration. It tries to solve the fundamental conflict between the desire to safeguard the individual’s faith in expectations raised by administrative demeanour and the necessity for administrators to practice changing policy objectives. In European administrative law, legal certainty is an essential corollary to legality that law has to be unambiguous to permit every individual to discern what his obligations or rights are. Non-retroactivity, like legitimate expectation, is also associated to legal certainty. A law is assumed to be non-retroactive, unless there is an unambiguous provision which would substantiate an alternate perception. Thus, legal expectations, legal certainty and retroactive are the three cardinal principles of European Union Administrative Law. Bibliography Craig Paul P& Burca Grainne De. EU Law: Text, Cases and Materials. Oxford: Oxford University, 2007. Joerges Christian & Dehousse Reynaud. Good Governance in Europe’s integrated Market. Oxford: Oxford University Press, 2002. Medhurst, David. A Brief and Practical Guide to EU Law. London: Wiley –Blackwell, 2001 Raitio Juha. The Principle of Legal Certainty. London: Springer, 2003 Thomas Robert. Legitimate Expectations and proportionality in administrative laws. New York: Hart Publishing, 2000. Wouters Jan, Nollkaemper Andre and Wet De Erika. The Europeanisation of International Law. (Cambridge: Cambridge University, 2008. Read More