Rule‐Making by the European Financial Supervisory Authorities: Walking a Tight Rope

The new European Financial Supervisory Authorities have received much attention in the literature, particularly due to their exceptional emergency decision‐making powers. By contrast, this article explicitly chooses to focus on these agencies' less explored yet equally crucial role: their (quasi‐)rule‐making responsibilities. While being less striking at first sight than their emergency counterparts, these rule‐making powers are considerable, carry significant consequences, and raise some interesting dilemmas and concerns. This article complements the previous contribution by going at a lower level of specification and zooming in on a crucial case for studying rule‐making by agencies as the Authorities constitute a culmination of agency rule‐making powers, as well as agency powers, more broadly. The article will analyse the Authorities' main (quasi‐)rule‐making powers and the relevant procedures. It will specifically investigate their role with respect to the adoption of regulatory and implementing technical standards, as well as guidelines and recommendations. The article also identifies and highlights a set of problematic issues that arise, threatening to jeopardise the legitimacy and credibility of their rule‐making.     

Delegated and Implementing Rule Making: Proceduralisation and Constitutional Design

The reform of non‐legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu) implementing acts of the Union. However, it has ignored the centrality of transparency in the Union's democracy and the role of participation as a complementary source of democracy. This article argues that the procedures leading to the adoption of delegated and implementing acts are subject to the treaties' provisions on transparency and participation, and should be shaped by them. It analyses the constitutional choices underlying Articles 290 and 291, with a view to assessing whether and to what extent the material, organic and functional profiles of delegated and implementing acts condition procedural rules on transparency and participation to be followed in their adoption.     

正当程序:滥用程序权的判断标准

在缺乏有关程序的法律依据时,行政机关对程序拥有裁量权。行政机关对程序的裁量违反正当程序原则的,构成滥用职权。正当程序原则的合法地位源自《行政诉讼法》所规定的行政行为不得滥用职权。法院审查行政行为是否存在滥用职权的判断标准之一,是正当程序原则。上述规则的确立,经历了学说借鉴、政策回应、司法实践和法律确认的发展过程。     

Impact Assessment of EU Non‐Legislative Rulemaking: The Missing Link in ‘New Comitology’

Impact assessment (IA) has gone from an innocuous technical tool typically used in the pre‐legislative phase to an instrument at the heart of the European institutional machinery. However—in deviation from its roots as a tool governing delegated rulemaking in the US—most experience with IA in the EU has been gathered in a legislative context. Against the background of the recent evolution of the EU's old ‘comitology’ system into a two‐track system of delegated acts and implementing measures, this contribution discusses in three parts the ‘whys,’ ‘whats’ and ‘hows’ of extending IA to ‘non‐legislative rulemaking.’ It explores various aspects of the rulemaking process that IA—if properly applied—could strengthen: consultation, control and quality.     

论规章制定中听证程序的完善

《规章制定程序条例》第14条确定了规章制定中的听证程序,但听证程序的适用范围、法律依据、法理内涵等都没有一个清晰的界定从而导致规章制定中听证程序极其不完善。基于此种现实我们对该问题作了较为系统的探讨,认为目前我国规章制定中听证程序在程序适用范围上的瑕疵是规章规制事项的有限适用、程序主体上的瑕疵是行政系统起主导作用、程序效力上的瑕疵是软约束力。因此,我国规章制定中听证程序必须符合下列要件：听证程序典则的法形式性、听证程序适用范围的普遍性、听证程序定位的正当程序性、听证程序效力的法强制性。     

严格行政程序 规范政府行为

本文分析了目前我国政府行政程序违法的诸多表现及给相对人和公共利益带来的危害。提出政府应增强全社会的程序意识，规范政府行政行为，严格按程序办事的对策建议，以确保政府行为公正、合理。     

论法律保留原则

从我国行政法律理论和实践出发 ,法律保留在我国确立的基本依据是民主原则、法治国家要求和基本人权 ,其适用范围理论应该采用重要性理论 ,其适用的密度应该涉及法律、行政法规、地方性法规、单行条例、自治条例、行政规章等 ,法律保留适用的领域应该包括涉及人身权、财产权、劳动权、受教育权、政治权利以及行政组织和行政程序等行政活动领域 ,而且法律保留原则还要求法律必须具有明确性 ,以保证行政权力公正合理地行使     

National Support for Film Production in the EU: An Analysis of the Commission Decision‐Making Practice

This article deals with the cultural welfare concerning cinema, a medium capable of both painting and shaping society. It aims to investigate the impact of the European integration on national film promotional law, by studying the European Commission decision‐making practice in the field of State aid to cinematographic works. The analysis shows that this practice can be understood in two main phases that are delineated by the adoption of specific criteria. These criteria are explored by highlighting the most elucidating cases. Furthermore, this analysis discloses two relevant conflicts: within the Commission itself and between the Commission and the Member States. Particular emphasis is placed on the latter, which is explored with regard to: the European national film agencies' polarisation of the conflict, the main form of dispute settlement adopted by the Commission, and the legal obligations imposed by Member States upon TV broadcasters to invest in audiovisual 1 production. The analysis ends with an evaluation of the above‐mentioned impact and a few remarks on some unresolved issues related to the conflict between the Commission and the Member States.     

Oversight of Administrative Rulemaking: Judicial Review

The role of the courts in the review of administrative rulemaking raises profound questions as to the legitimate interference of courts in the exercise of administrative activities, which are often carried out in the pursuance of a legislative mandate. In contrast to the review of administrative acts of individual application, the Union courts have shown a more hesitant approach in the review of administrative rulemaking activities. This contribution will discuss the review by the Union courts of administrative rulemaking for compliance with procedural as well as substantive standards and will explore whether a convincing rationale for their more deferential attitude to the review of administrative rules can be provided. The article will explore to what extent lessons can be learned from the jurisprudence of the federal courts in the USA, which have struggled, even after the adoption of the Administrative Procedure Act (APA), with similar problems.     

MOBILIZING FRIENDS AND FOES IN ADMINISTRATIVE PROCEEDINGS

A common justification for the use of trial-type procedures in administrative agency decisionmaking is the assertion that such procedures will help legitimize decisions or increase their acceptability. Writers who take this position often assume that members of affected interest groups have fixed attitudes toward decisionmaking procedures, that such attitudes are highly salient, and that perceptions of procedural acceptability will not be greatly influenced by the social setting. This article reports on the results of a survey administered to witnesses in federal agency rulemaking proceedings which indicate that procedural attitudes have low salience, are mobilizable rather than fixed, and are strongly influenced by the activities of intermediary organizations such as trade associations and public interest groups. These findings imply particular strategies for designing and implementing regulatory procedures.     

Soft Post‐Legislative Rulemaking: A Time for More Stringent Control

The Commission's soft post‐legislative rulemaking by way of communications, notices, codes and similar instruments has become an increasingly important tool for the adequate functioning of the system of shared administration in the EU. However, the development of its legal framework has not kept pace with this, as the Treaty on the EU nor the Treaty on the Functioning of the EU (TFEU) recognise this regulatory phenomenon. As a result, its current procedural control is of a very ad hoc nature. Given the risks this rulemaking involves for the legitimacy of the EU, its practical and legal importance for legal practice and the way in which the Treaty of Lisbon has sought to condition and control the behaviour of the Union institutions, it is argued that the time is ripe for a more stringent and consistent procedural control of soft post‐legislative rulemaking. Some options to realise this are presented for further research.     

The Reconstitution of Law in Local Settings: Agency Discretion, Ambiguity, and a Surplus of Law in the Policing of Hate Crime

An important yet poorly understood function of law enforcement organizations is the role they play in distilling and transmitting the meaning of legal rules to frontline law enforcement officers and their local communities. In this study, we examine how police and sheriff's agencies in California collectively make sense of state hate crime laws. To do so, we gathered formal policy documents called “hate crime general orders” from all 397 police and sheriff's departments in the state and conducted interviews with law enforcement officials to determine the aggregate patterns of local agencies' responses to higher law. We also construct a “genealogy of law” to locate the sources of the definitions of hate crime used in agency policies. Despite a common set of state criminal laws, we find significant variation in how hate crime is defined in these documents, which we attribute to the discretion local law enforcement agencies possess, the ambiguity of law, and the surplus of legal definitions of hate crime available in the larger environment to which law enforcement must respond. Some law enforcement agencies take their cue from other agencies, some follow statewide guidelines, and others are oriented toward gaining legitimacy from national professional bodies or groups within their own community. The social mechanisms that produce the observed clustering patterns in terms of approach to hate crime law are mimetic (copying another department), normative (driven by professional standards about training and community social movement pressure), and actuarial (affected by the demands of the crime data collection system). Together these findings paint a picture of policing organizations as mediators between law‐on‐the‐books and law‐in‐action that are embedded in interorganizational networks with other departments, state and federal agencies, professional bodies, national social movement organizations, and local community groups. The implications of an interorganizational field perspective on law enforcement and implementation are discussed in relation to existing sociolegal research on policing, regulation, and recent neo‐institutional scholarship on law.     

Towards European Procedural Primacy in National Legal Systems

Abstract: In the polycentric judicial architecture of the Community, there is a rich, constant interplay between national procedural rules and European interventions. In the making of the European legal order, EC law depends on national procedural law and therefore, substantive EC supremacy depends, existentially, on procedure. In this context, the author argues that the traditional sharply defined dichotomy of national procedural autonomy versus Community law effectiveness no longer reflects the implicit course of action laid down by the Court of Justice. Instead, the European legal order has moved, as a praxis, from national procedural autonomy to a more subtle combination of national procedural competence and European procedural primacy. The rationale behind this trend testifies both to the importance of the interrelationship between procedure and substantive law in the making of Europe and to the flexibility of procedural law; EC law depends on procedural law and procedure readily submits to the demands of a new legal order. In doing so, it also creates new choices and venues for European supremacy.     

政府横向权力配置新论——从结构功能主义角度的分析

在＂结构功能主义＂权力分立观看来,政府的立法权、司法权和行政权分别是一种政治性、法律技术性和兼具政治性与行政技术性的权力;为了实现相应的政府职能,这些权力应当由相应的政治性的机关（立法机关）、法律技术性机关（司法机关）和兼具政治性与行政技术性的机关（行政机关）来行使;为了保证各政府机关能够＂称职＂地行使相应的权力,各政府机关的组成人员、运作规则应当具备不同于其他机关和人员的制度设计。尽管当今世界各国存在国家性质和政权体制的不同,但是三种权力的性质却是永恒不变、超越国家界限和超越意识形态的。我国当前权力机关（民意机关）和司法机关（法院）的行政化倾向不利于国家职能的有效实现。     

行政诉讼目的论

目的论是人性论。它是行政诉讼法学研究的前提性理论,对它的研究不仅具有理论价值,且更具实践意义。由于行政诉讼具有多维性,它既是权利与权力的共同规则,又是从“实然”中寻找“应然”的科学,既是权利对权力说“不”的游戏,又是为权利而奋斗的机制。因此,行政诉讼之目的也就具有多元性——可分解为程序正义、利益平衡、促进合作以及道德成本最低化等若干层面。     

Regulatory beneficiaries and informal agency policymaking

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to- consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise low-level employees and supply valuable information to regulated entities regarding how an agency will implement a program. Thus far, however, the debate has largely ignored the distinct and substantial interests of regulatory beneficiaries--those who expect to benefit from government regulation of others. Regulatory beneficiaries include, among others, pharmaceutical consumers, environmental users, and workers seeking safe workplaces. When agencies make policy informally, regulatory beneficiaries suffer distinctive losses to their ability to participate in the agency's decision and to invoke judicial review. This Article argues that considering the interests of regulatory beneficiaries strengthens the case for procedural reform. The Article then assesses some possible solutions.     

Revisiting Kartar Singh v State of Punjab: Procedural exceptions and fair trial in anti-terror laws

India’s lineage of anti-terror laws—TADA, POTA, and UAPA—create wide exceptions to cardinal principles of fair trial recognised under common law, statute, and the Constitution. These were enacted as exceptional legislations to deal with national security concerns, thus justifying enhanced legal powers of coercion over investigation and prosecution. The source of these extraordinary powers is not the Emergency Provisions under Part XVIII of the Constitution, or preventive detention under Article 22, but reasonable restrictions under Articles 19(2) and (4). Without constitutional and legislative safeguards, UAPA permanently entrenches coercive State power. Unless expressly repealed by Parliament or struck down by judicial review, non-derogable Article 21 guarantees and democratic opposition remain at present the best defence of liberty. As established constitutional and statutory principles of fair trial stand abrogated in anti-terror laws, how may judges protect due process under special procedures? How may the accused effectively defend their liberty? And as members of the democratic republic, how may we evaluate whether the criminal justice system is fairly administering justice in practice? To answer these questions, this article turns to Kartar Singh v State of Punjab, one of the first Supreme Court decisions to consider the constitutionality of procedural exceptions under TADA. The article proposes an alternative orientation of the principles of fair trial, towards a theory that is rooted in separation of powers and frameworks of checks and balances within procedural law. The first section describes the right to fair trial, its relationship with ordinary procedures, and derogation under special procedures. The second section identifies a theory of fair trial through an analysis of Ramaswamy J’s dissent under Kartar Singh. The final section follows the ramifications of this theory for contemporary bail jurisprudence under UAPA.

     

Issues in Anti‐Corruption Law: How Can Code of Conduct Laws Be Drafted in Order to Reduce Corruption in a Public Sector like Romania's

International organisations, like the UN and EU, have encouraged their Member States for years to increase civil servants' compliance with particular codes of conduct. Romania represents probably one of the most advanced countries in attempting to legislate on civil servant ethics through its Code of Conduct Law. Yet, the Romanian Code of Conduct Law possesses significant weaknesses, emanating both from the inherent difficulties of using hard law in a soft law area (like civil servants' ethics) and the Law's silence as to specific procedures, which government agencies should use in implementing the Law. Given these weaknesses, Romanian government agencies should adopt regulatory instruments that compensate for these weaknesses at the legislative level. In this paper, we present the provisions—particularly related to the establishment of agency‐level ethical doctrines—which regulatory drafters can use to implement these codes of conduct in a civil law system without running afoul of the basic requirements of civil law jurisprudence for clarity and predictability. We discuss the legal basis in Romanian administrative law for the elaboration of specific ethics‐related doctrines and the ways in which such a ‘doctrinal approach’ to administrative ethics can help achieve the objectives of the flawed Code of Conduct Law. We specifically discuss the ways in which Romanian governments can adopt such regulatory instruments and the types of provisions that should be included in order to help overcome the flaws of the Code of Conduct Law.     

Medicaid program; demonstration proposals pursuant to section 1115(a) of the Social Security Act; policies and procedures--HCFA and ACF. Public notice

This public notice informs interested parties of (1) the principles the Department of Health and Human Services ordinarily will consider when deciding whether to exercise its discretion to approve or disapprove demonstration projects under the authority in Section 1115(a) of the Social Security Act, 42 U.S.C. section 1315(a); (2) the kinds of procedures the Department would expect States to employ in involving the public in the development of proposed demonstration projects under Section 1115; and (3) the procedures the Department ordinarily will follow in reviewing demonstration proposals. The principles and procedures described in this public notice are being provided for the information of interested parties, and are not legally binding on the Department of Health and Human Services. This notice does not create any right or benefit, substantive or procedural, enforceable at law or equity, by any person or entity, against the United States, its agencies or instrumentalities, the States, or any other person.     

Accountability for Delegated and Implementing Acts after the Treaty of Lisbon

The comitology regime, the committee‐based system developed as a mechanism for controlling the Commission's exercise of its powers to implement EU measures, has been subject to severe criticism on grounds of lack of accountability and transparency. The system has recently been fundamentally reformed by means of the new Implementing Acts Regulation, which came into force on 1 March 2011. This paper investigates whether the new rules are sufficient to remedy accountability deficits as regards implementing acts and concludes that as far as accountability to the Member States is concerned, their control powers have remained static. In addition, the new‐delegated acts procedure introduced by the Treaty of Lisbon grants the European Parliament (EP) more control powers, although the EP's gains are more modest than they might appear. This change has come at the cost of reduced control powers for Member States as well as lowered standards of transparency for the public.