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ID number: 0235862

The concept of European Administration


in the light of article 298 TFEU

Contents
I Introduction: A scattered administration
II The pre-Lisbon world
III The Treaty of Lisbon and the different interpretations of
article 298 TFEU
IV The post-Lisbon world
V

Conclusion: The concept of European administration in view


of article 298 TFEU

Abbreviations
ECJ (or CJEU)

European Court of Justice

EU

European Union

TFEU

Treaty on the Functioning of the European Union

ECHR

European Convention on Human Rights and Fundamental Freedoms

CFR

Charter of Fundamental Rights of the European Union

ReNEUAL

Research Network on European Union Administrative Law

I Introduction
The aim of this paper is to entangle the confusion around the concept of European administration,
first looking at the situation before the entering into force of the Lisbon Treaty and article 298
TFEU, then we will examine the possible interpretations of the latter, and finally we will take a look
at what changed after article 298 had been settled, so to have a more complete idea of the concept of
European administration according to the wording of the article in question.

II The pre-Lisbon world


In order to understand the actual meaning of European administration after the addition of article
298 TFEU to the Lisbon Treaty, we should first look at its origins. The roots of article 298 can be
traced to the Convention on the Future of Europe and the final report on complementary
competences of Working Group V1. The latter was considered together with what became article
197 TFEU regarding national administration. The final report showed a twofold dimension of
article 298, which concerned both the internal working structure of EU administration and the
external procedural effect of EU administration on those influenced by it.
The internal dimension emphasized the need to carry out protective measures in order to pursue
good administrative culture in the EU administration to increase efficiency and legitimacy 2. The
external dimension affirmed that a Treaty article should underline basic principles for good
administration of the EU institutions, e.g., service obligations, objectivity, impartiality, increased
openness, and improved anticorruption measures3. This analysis should also take into account the
legal framework in which it should feet, in relation to the general principles of law regarding good
administration according to the ECJs view, the provision of the ECHR and the advices of the EU
Ombudsman.

III The Treaty of Lisbon and the different interpretations of


article 298 TFEU
In consideration of this background, we should now turn our attention to the possible interpretations
of article 298.
A first interpretation could be that article 298 only relates to the making of regulations regarding
internal administration of EU institutions, bodies, offices and agencies. The main reason to sustain
this view is that article 298(2) is built in support of article 298(1), so as to realise the making of
regulation to create an open, efficient and independent administration; the last adjective meaning
1 Final Report of Working Group V on Complementary Competencies, CONV 375/1/02, Brussels 4
November 2002, 1718.
2 Final Report of Working Group V, supra n. 32, at 17.
3 Working Group V, Working Document 13, supra n. 34, at 3.

the non-involvement of EU institutions from external influence. Yet this may be a difficult and
narrow reading of the article, since it does not fit within the framework considered in the previous
chapter, and it would be then excessive, considering that those intentions can be achieved through
article 336 TFEU (the legal basis of the Staff Regulations).
The second interpretation of article 298 would be to read the clause open, efficient and
independent European administration, so that to cover not only the implementation of rules of
internal administration, but also procedural rules to regulate the relationship between EU
administration and those affected by it. That said, this interpretation would not cover Member state
administration in acting in the context of shared administration, given that article 298(1) specify
that it would be applicable to the institutions, bodies, offices and agencies of the Union.
However, the third and, in my opinion, more complete interpretation is built on the second one but
considers also national administration when it works in the EU law area.
The support of this argument can be found in the terminology of article 298(1), which asserts that
the institutions, bodies, offices and agencies of the Union shall have the support of an open,
efficient and independent European administration. This choice of words can include national
administration when acting within the domain of EU law as it considers the support in terms of
European and not EU administration.

IV The post-Lisbon world


The signing and entering into force of the Lisbon Treaty on 1 December 2009 brought a substantial
change in the administrative sphere of the European Union. Article 298 TFEU was considered to be
the cornerstone for a new legal basis to implement secondary legislation regarding administrative
procedures.
The CFR4 contains a series of articles concerning EU procedural law, e.g., article 41 on the right to
good administration, article 42 on the right of access to documents, 43 on the European
Ombudsman. However, after few years from the implementation of article 298 and the Charter, no
relevant facts happened that could satisfy the expectation of all after the signing of the Treaty of
Lisbon. The need for a secondary legislation at EU level, that could complement and actualise the
principles laid down in the primary legislation, gained additional strength, in the already fragmented
EU administrative structure, when considered in the context of an increasingly modern sociopolitical environment; thus requiring higher specification to accommodate the always increasing
areas of action of the Union. In addition to this, the work of the European Ombudsman and the
ReNEUAL helped raising issues concerning the codification of administrative procedures and the
conformance by the institutions, offices, bodies and agencies of the Union to the principles declared
in the Treaty and the Charter.

V Conclusion: The concept of European administration in


view of article 298 TFEU
Considered the differentiated socio-cultural and legal environment in which the European Union is
established, its objective should be to develop an ever closer union and help convergence in areas of
4 The Charter of Fundamental Rights of the European Union gained the same legal status as the Treaties
after the entering into force of the Treaty of Lisbon

common interest for the European citizens, without hindering Member states diversity. With this in
mind, we now have the necessary information to reconsider the concept of European administration,
under three basic terms that should summarise the very aim of article 298. The three Cs of
European administration Communication, Cooperation and Coordination 5 as Carol Harlow and
Richard Rawlings affirm in their book Process and Procedure in EU administration, are the super
glue of the Network of governance, which is rather similar to the scope of the creation of article
298. A more communicative intra- and inter-institutional environment would promote openness and
transparency6; cooperation and coordination between European institutions 7 would develop a more
efficient administrative standardisation and procedural system. For the time being, the fact that the
Union needs a coherent, solid and exhaustive set of rules of administrative nature, makes it difficult
for citizens to assert their administrative rights under Union law.

5 Actually in the book there is a fourth C which is Conflict. We do not mention it due to length constraint,
as it would need a more detailed discussion in order to be understood properly.
6 These two values have been matter of discussion in recent literature, since both are predicated as essential
in the Treaty, in effect, the former is believed by the EU institutions to be in conflict with efficiency, creating
a sort of trade-off between the two; while the latter is gaining strength from the ECJ, although in the
administrative area the introduction of the term General presumption of secrecy is rather inconsistent.
7 Meaning both institutions, offices, bodies and agencies of the European Union and Member states
administrations when working in the EU law field.

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