Moving the Pawns of the EU Administrative Law System, on the way to Sound Administration

Chapter I – Fundamentals of EU Administrative 
architecture 
 
1. The European Union as a tertium genus. 
Two main ideas were at the basis of the European order, dialectically confronted in the 
enlightening argumentations of eminent thinkers like, among others, Jean Monnet, Robert 
Schuman, Walter Hallstein, Altiero Spinelli, Ernesto Rossi, Eugenio Colorni. The initial 
prevalent rationale used to gravitate on federalism as the 1941 Ventotene Manifesto 
recalls
6
, striving for a revolution capable of constituting a union of federal States. The 
“constituent” approach followed by the federalist rationale was not appropriate for those 
times. On the other hand, the gradual approach, sneaking silently into the political debates 
and providing at the end the most suitable solution. The need for a political reconciliation 
went hand in hand with the economic benefit the contracting parties were looking for after 
the second world war, thus, the creation
7
 of an administrative authority composed of 
independent personalities gathered by the national governments, such as the European 
Coal and Steel Community (ECSC), pooling
8
 the coal and steel resources among its 
founding members (France, Italy, West Germany, the Netherlands, Belgium, Luxembourg) 
 
 
6
 The idea of “United States of Europe” construed on the republican constitution of all the federal 
countries, which ought to be the correct answer, <<the only conceivable guarantee>> to maintain 
peace and stability within the American-Asian axle. Istituto di Studi Federalisti “Altiero Spinelli”, Per 
un’Europa libera e unita, Il Manifesto di Ventotene, Senato della Repubblica, 2017. 
7
 About the creation of the European Community of Steel and Coal is relevant the French Foreign 
Minister Robert Schumann Declaration of 9
th
 May 1950, inscribed as a historical turning point for 
the starting of the European Union. After the 1985 the European Council decided for the 
proclamation of the 9
th
 of May as the Europe Day. 
8
 Ensuring the fusion of markets in the name of treaty based common rules and principles, among 
which free movement (no customs duty nor differential transport rates) of coal and steel resources 
between member countries, was one of the leading mechanisms. <<The movement of coal and steel 
between member countries will immediately be freed from all customs duty, and will not be affected 
by differential transport rates. Conditions will gradually be created which will spontaneously provide 
for the more national distribution of production at the highest level of productivity. In contrast to 
international cartels, which tend to impose restrictive practices on distribution and the exploitation of 
national markets, and to maintain high profits, the organization will ensure the fusion of markets and 
the expansion of production. The essential principles and undertakings defined above will be the 
subject of a treaty signed between the States and submitted for the ratification of their parliaments>>. 
Translation taken from Declaration of 9
th
 May 1950, Foundation Rober Schuman, European Issue 
no.204, 2011.
1. The European Union as a tertium genus 
 
Cainca L. 
17 
 
within an independent and supranational reality, provided with own appropriate legal 
remedies to review its decisions
9
, demonstrated a suitable combination to redress those 
perilous times. The fundamental steps taken through treaty arrangements, in addition to 
the ECSC one, signed in 1951 in Paris, must be summarily retrieved: the Treaty of Rome of 
1957, which gave birth to the European Economic Community (EEC) and the European 
Atomic Energy Community (EURATOM); the 1986 Single European Act, which introduced 
the qualified majority voting at the Council to render more difficult the veto of proposed 
legislation; the revolutionary 1992 Treaty of Maastricht, that, departing from the prevalent 
economic integration, gave shape to the “three pillars” architecture of the European 
Community (EC), introducing the co-decision procedure, the “additional” citizenship of the 
Union and moving the European Union towards a deeper political integration; then the 
Treaty of Amsterdam of 1997, that consolidated and renumbered the other Treaties; the 
one of 2001 in Nice through which was proclaimed the Charter of Fundamental Rights of 
the European Union (CFR), that entered into force as a particular primary source 
concomitantly with the Lisbon Treaty in 2009, signed in 2007, which clarified the 
competences of the Union and the Member States, the founding values, the provisions on 
democratic principles and citizenship, the equal footing of the Council and the European 
Parliament, and other provisions amending the two main “living instruments”
10
: the Treaty 
of the European Union (TEU) and the Treaty on the Functioning of the European Union 
(TFEU).  
So, overtook the federalist drawing, the European Union gave shape to a fresh tertium 
genus architecture, a public power amid an international organization and a federal State, 
that programmatically enhance its capabilities and functions towards progressive 
integration of different juridical cultures, combining elements of an international and 
supranational identity both, reinforcing its frame after every failed attempt, like the 
constitutional one of 2004, or crisis, like the 2008 economic breakdown, the migration, the 
Brexit “disintegration”
11
 and other several examples. The Union will be <<forged in crisis 
and will be the sum of the solutions adopted for those crisis>> (J. MONNET). Its ability to 
 
 
9
 <<The common High Authority entrusted with the management of the scheme will be composed of 
independent persons appointed by the governments, giving equal representation. A chairman will be 
chosen by common agreement between the governments. The authority’s decisions will be enforceable 
in France, Germany and other member countries. Appropriate measures will be provided for means 
of appeal against the decisions of the authority>>. Translation taken from Declaration of 9
th
 May 
1950, cit. 
10
 The Commission made a parallelism between the constitutional texts of the Member State and 
the EU treaties which are both living instruments. COM/2022/404/final, Conference on the Future 
of Europe, Putting Vision into Concrete Action. 
11
 J. ZELONKA, Disintegrazione. Come salvare l’Europa dall’Unione Europea, Roma-Bari, Laterza, 2015.
1. The European Union as a tertium genus 
 
Cainca L. 
18 
 
progressively morph might be considered one of the fundamental characteristics
12
 to 
recapitulate the basis for its understanding. Its dynamic soul steps on a “messianic”
13
 path 
towards integration on which the founding Treaties do not portray the zenith of the final 
product, but merely <<a new stage in the process of creating an ever closer union among 
the peoples of Europe, in which decisions are taken as openly as possible and as closely as 
possible to the citizens>>
14
 tracing a coherent line with those former premises shared by 
Schuman and Monnet, for which: <<Europe will not be made all at once, or according to a 
single plan. It will be built through concrete achievements which first create a de facto 
solidarity>>
15
. Graduality and incrementalism unfolded more and more in each step 
belonging to political and economic interdependence. The so called “spill over” effect
16
 
points out those newer interconnections that continue to transfer to the EU institutions 
broader competences in the name of a greater chance to better achieve the objectives 
underneath the various policies pursued, according to the principle of subsidiarity
17
. The 
functionalist logic depicts exactly the progressive transfer of Member States sovereign 
units, stimulating the extension of the EU branches, reaching a <<pragmatic adaptation to 
everchanging reality>>
18
 focused on a methodological choice that put at the forefront 
short and mid-term accomplishments rather than conclusive outcomes.  
 
 
 
 
12
 BATTINI S.; CHITI E.; GALETTA D.-U.; MATTARELLA B.G.; MACCHIA M.; FRANCHINI C.; DELLA CANANEA G.; CHITI 
M. P., Diritto amministrativo europeo, a cura di CHITI M. P., seconda edizione, 2018, Giuffrè Editore, 
p. 4. 
13
 J.H.H. WEILER, 60 Years since the First European Community – Reflections on Political Messianism, 
EJIL, 2011, pp. 303-311. 
14
 Article 1(2) TEU.  
15
 Declaration of 9
th
 May 1950, Foundation Rober Schuman, European Issue no.204, 2011. 
16
 BATTINI S.; CHITI E.; GALETTA D.-U.; MATTARELLA B.G.; MACCHIA M.; FRANCHINI C.; DELLA CANANEA G.; CHITI 
M. P., Diritto amministrativo europeo, a cura di CHITI M. P., seconda edizione, 2018, Giuffrè Editore, 
p. 7. 
17
 <<Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, 
the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently 
achieved by the Member States, either at central level or at regional and local level, but can rather, 
by reason of the scale or effects of the proposed action, be better achieved at Union level>>. Article 
5(3) TEU.  
18
W. HALLSTEIN, Speech at the constituent session of the Parliamentary Assembly, 19 March 1958, in 
Europaïsche Reden, 1979, pp.50-51. Hallstein was the first president of the European Commission 
from 1958 to 1972.
2. A new legal order of Member States and their nationals, the role of EU citizenship. 
 
Cainca L. 
19 
 
2. A new legal order of Member States and their nationals, the role of EU 
citizenship. 
The “betweeness”
19
 of the Union, embedding characteristics from both an international 
organization and a State, can be described through some peculiar dialectical relations. An 
international organization politically commits its contracting parties without interfering 
with citizenship, that continue to pertain to the competence of the States
20
. The Union 
jurisprudence provided with a remarkable clarification on the point in early ’60 with Costa 
v. Enel and Van Gend En Loos cases, highlighting primacy of the Union law on the on hand 
and the direct effect on the other, enlarging the scope of international mutual obligations
21
 
and establishing a straight connection with the “additional” citizenship of the Union
22
 and 
the enforceable rights of its people, that <<arise not only where they are expressly granted 
by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined 
way upon individuals as well as upon the Member States and upon the institutions of the 
Community>>
23
. The new legal order envisioned derives from the sum of each small 
portion of sovereignty that every Member States has yielded and is capable of relation 
with their nationals, simultaneously imposing obligations and conferring rights, within the 
underlying scope of granting uniform interpretation of Union law
24
. The EU citizenship, 
starting from its establishment through the 1992 Maastricht step, enabled the growth of 
the political integration, developing additional evaluations to that premises of mere 
economic actors. Article 20 TFEU recalls that the citizens of the Union shall enjoy, inter alia, 
the right to move and reside freely in the territories of the Member States; the active and 
passive electorate rights in the Member State they are residing at the same condition of 
its nationals and in the EU Parliament; the right to enjoy the protection of the diplomatic 
and consular authorities of any Member States at the same conditions as the nationals of 
 
 
19
 LAFFAN, B., The European Union: A Distinctive Model of Internationalisation? European Integration 
Online Papers (EIoP), 1997, vol. 1, n.18. 
20
 BATTINI S.; CHITI E.; GALETTA D.-U.; MATTARELLA B.G.; MACCHIA M.; FRANCHINI C.; DELLA CANANEA G.; CHITI 
M. P., Diritto amministrativo europeo, cit, p.18. 
21
 <<The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which 
is of direct concern to interested parties in the Community, implies that this Treaty is more than an 
agreement which merely creates mutual obligations between the contracting states. This view is 
confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is 
also confirmed more specifically by the establishment of institutions endowed with sovereign rights, 
the exercise of which affects Member States and also their citizens [...]>> Judgment of 5
 
February 
1963, Van Gend En Loos, C-26/62, EU:C:1963:1. 
22
 Article 9 TEU is clear: <<Every national of a Member State shall be a citizen of the Union. Citizenship 
of the Union shall be additional to national citizenship and shall not replace it.>> 
23
 Judgment of 5
th
 February 1963, Van Gend En Loos, C-26/62, EU:C:1963:1. pag. 12.  
24
 Ibidem.
2. A new legal order of Member States and their nationals, the role of EU citizenship. 
 
Cainca L. 
20 
 
that State; the right to petition to the European Parliament; to apply to the European 
Ombudsman in cases of maladministration; to address the institutions and advisory bodies 
of the Union in any official language and to obtain a reply in the same language; but also 
to exchange publicly their views in all areas of the Union and, fulfilled the conditions
25
, to 
take the legislative initiative inviting the European Commission to submit a legislative 
proposal. EU citizenship is a core element of the Union architecture, representative 
democracy through the European Parliament is one cogwheel that allows the effective 
enjoyment of the participation right in the democratic life of the Union
26
, and the right to 
initiative might be deemed as a complementing one, assumed that the public debate and 
participation in the democratic decision-making process of the Union should be fostered 
and facilitated through procedures and conditions that ought to be effective, transparent, 
clear, simple, user-friendly, accessible for persons with disabilities and proportionate
27
. 
Actually, means that in these conditions relating to the legislative initiative no re-
interpretation or political selection of the measures proposed by the citizens panels should 
be made by the referring institution (Commission)
28
, deploying EU citizenship as a tool to 
 
 
25
 Article 11(4) TEU reports <<not less than one million citizens who are national of a significant 
number of Member States>> lacking a specification that, according to that paragraph, arrived 
through the ordinary legislative procedure set in accordance with Article 24 TFEU. So the 
requirements get clearer with Article 2 and 3 of (amended by corrigendum) Regulation 2019/788 
of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative: 
EU citizens must be at least of the age to be entitled to vote; must be collected one million of 
signatories from at least one quarter of the Member States; those signatories must be at least equal 
to a minimum amount set out in Annex I <<corresponding to the number of the Members of the 
European Parliament elected in each Member State, multiplied by the total number of Members of 
the European Parliament, at the time of the registration of the initiative>>.  
26
 Article 10 TEU mentions: <<1. The functioning of the Union shall be founded on representative 
democracy. 2. Citizens are directly represented at Union level in the European Parliament. Member 
States are represented in the European Council by their Heads of State or Government and in the 
Council by their governments, themselves democratically accountable either to their national 
Parliaments, or to their citizens. 3. Every citizen shall have the right to participate in the democratic 
life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 4. Political 
parties at European level contribute to forming European political awareness and to expressing the 
will of citizens of the Union>>.  
27
 Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the 
European citizens’ initiative. 
28
 Within the means of the Conference on the Future of Europe that took place between 2021 and 
2022 (the closing ceremony on 9 May 2022), deemed as the “unprecedented pan-European exercise 
in deliberative democracy”, the Commission stressed in its communication to the other institutions 
that to ensure credibility is <<essential to stick to the spirit and the letter of what is proposed>>, 
reaching the most pragmatic approach possible, while respecting subsidiarity and proportionality
2. A new legal order of Member States and their nationals, the role of EU citizenship. 
 
Cainca L. 
21 
 
improve the democratic resilience and the public debate, giving citizens an important role 
in EU policymaking, as part of a Union based since the outset on peace and prosperity, 
fairness and progress, that <<places the individual at the heart of its activities, by 
establishing the citizenship of the Union and by creating an area of freedom, security and 
justice>>
29
. The recognition of the rights, freedoms and principles of the Charter of 
Fundamental Rights (CFR) of the EU uncover a direct connection not only with the Council 
of Europe international environment, namely within the ambit of application of the 
European Convention on Human Rights (ECHR), but also with the constitutional traditions 
common to the Member States, elevating those fundamental rights to general principles 
of Union law
30
. However, they are not directly enforceable towards Member States unless 
implementation of Union law is carried out, shading light on another difference with the 
domestic constitutional setting to which direct applicability is a hallmark. Hence, the Union 
citizenship helps assessing the peculiarity of the “in between space” the legal order floats 
around.  
Another remarkable feature relates to the portion of sovereignty the Member States yield 
to the Union. In the beginning, the intergovernmental contractual scheme was the 
mandatory solution to approach international cooperation, but in the gradual morphing 
of the structure, the pervasive evolution of Union law shifted more towards a constitutional 
validity interlaced with the general principles of law and constitutional traditions common 
to the Member States which seemed more and more unlikely to be eradicated, placing 
within brackets the Brexit exception, through which one leading country of the Euro area, 
the United Kingdom, exerted the “untouched” withdrawal procedure from the Union 
regulated by Article 50 TEU
31
. The autonomy of the EU legal order has been established 
clearly in Costa v. Enel
32
, marking a distinction with the <<ordinary international treaties>>, 
placing the law of the Treaty as an <<independent source of law>> with a <<special and 
original nature>>. However, to better grasp the differences with international 
organizations, the procedure for the review of the “constitutional charter(s)” of the Union, 
regulated by Article 48 TEU, might provide a useful example. Excluding the examination of 
the simplified revision procedure triggerable for the amendments pertaining specifically 
to the Union policies (Part Three of the TFEU, Artt. 26-197), the ordinary revision procedure 
 
 
and the competence of the Commission, for which non-legislative action might often be the 
efficient solution. Within the Conference on the Future of Europe there has been 49 proposals and 
326 specific measures divided in 9 main themes.  
29
 Preamble of the Charter of Fundamental Rights (CFR) of the European Union, OJ 2016 C202/389. 
30
 Article 6 TEU.  
31
 The procedure employs a notification to the European Council that will provide for guidelines on 
the further step, the withdrawal agreement, setting up all the arrangements and conditions 
pertaining the relation of the exiting State and the Union.  
32
 Judgment of 15
th
 July 1964, Costa v. Enel, C-6/64, EU:C:1964:66.
2. A new legal order of Member States and their nationals, the role of EU citizenship. 
 
Cainca L. 
22 
 
clearly stands out the constitutional relevance of the whole process, underlying again 
citizenship and representative democracy as key points, for the reason that is prescribed 
a Convention composed not only by the executive powers (Heads of State or Government 
of the Member States), yet by representatives of the national Parliaments, of the European 
Parliament and lastly of the Commission, disclosing a plain difference with the 
intergovernmental paradigm pertaining to international law relations. On the same line, 
the “Royal prerogative” of the U.K. executive did not suffice for the deliberation of its 
withdrawal from the Union, for the fact that structural and constitutional changes would 
have occurred, thus the Parliamentarian counterbalance would have been necessary
33
 to 
weigh the ministerial willingness.  
An additional point is on the selective adhesion typical of ordinary international treaties, 
that does not reflect one of the milestones of Union law, namely unity, for which even rules 
of constitutional nature must be disregarded if capable of jeopardizing this principle
34
. So, 
no discretional or preferential selection of EU norms may be generally applied, excluding 
the grinding exception of enhanced cooperation
35
, the whole acquis communautaire must 
be respected by each Member State, meaning the whole rules derived from the Union 
irrespective of the time of accession or hypothetical reservations possible within the 
international arrangements
36
.  
In conclusion, the intergovernmental relationships, the “ex parte principis” point of view, 
represent just a guise of the EU palace, that developed a tendency to articulate itself more 
and more on the citizenry side, “ex parte populi”, and its astounding implications
37
. 
 
 
 
 
 
33
 <<It would be inconsistent with long-standing and fundamental principle for such a far reaching 
chance to the UK constitutional arrangements to be brought about by ministerial decision or 
ministerial action alone>>. Supreme Court, [2017], UKSC 5, case ID: UKSC 2016/0196, §81. 
34
Judgment of 21 December 2021, Euro Box, C-357/19, C-379/19, C-547/19, C-811/19 and C-
840/19, EU:C:2021:1034, §251; Judgment of 6 October 2021, W.Ż., C-487/19, EU:C:2021:798, §157.  
35
 Article 20 TEU leaves, on Union’s non-exclusive competences, a priority track open to at least 
nine Member States capable of furthering the objective of the Union, protect its interests and 
reinforce its integration process, once the Council, as a last resort, established that those aims 
cannot be attained within a reasonable time by the Union as a whole, granted the authorization 
with a decision following the procedure set by Article 329 TFEU. The grinding element is 
represented by the non-inclusion of the enhanced cooperation acts within the acquis 
communautaire [Article 20(4) TEU]. 
36
 BATTINI S.; CHITI E.; GALETTA D.-U.; MATTARELLA B.G.; MACCHIA M.; FRANCHINI C.; DELLA CANANEA G.; CHITI 
M. P., Diritto amministrativo europeo, a cura di CHITI M. P., seconda edizione, 2018, Giuffrè Editore, 
pp. 26-27. 
37
 N.BOBBIO, Stato, governo, società, Frammenti di un dizionario politico, Einaudi, 2006;
3. The notion of EU Administrative Law 
Whether the notion refers strictu sensu to the relationship between the Union institutions 
and its other organs, or latu sensu to the overall complexity of the composite processes 
that functionally collect the whole subjects acting toward the realization of the Union 
general interests, it might be pointed out that the initial conception of administration “avec 
des instruments légers”
38
, working almost uniquely through national administrations, and 
perfectly aligned with the soft approach required at the beginning of the Community 
project, paved its way towards a proactive administrative model, providing for a more 
autonomous and centralized attitude composed of principles and rules able to condition 
the domestic systems, incrementally switching from those initial premises of an 
administration of quest/mission to an administration of management
39
. The executive 
authority, historically vested by the High Authority, has been assigned to the Commission; 
however, the completely independent
40
 supranational institution has always been sharing 
the administrative role with an intergovernmental body, represented by the Council, for 
this reason is fundamental to underline the inadaptability of the summa divisio between 
executive and non-executive functions traditionally envisioned at national level. The 
executive heterogeneous nature is one among other characteristics that distinguish the 
EU administration from the national ones. Eminent scholars of public law, dating back to 
the twentieth century, like Georg Jellinek and Santi Romano
41
, used to recap the 
foundation of a State within three essential elements, such as the sovereignty, operational 
within a given territory and population. The Union order clearly departs from those fixed 
terms, soaring in a more fluid ambit of competence considerable as a legal space, or 
similarly, a public arena
42
 distant from the typical domestic scheme of contraposition 
between the overarching public interest and the private one, remaining more open to a 
multipolarity composed of interactions of interests, spread over a plurality of arenas that 
answer to the call of integration, cooperation and competition
43
. The legal pluralism of the 
EU system directly involves the national administrative heritages, developing a non-
hierarchical framework of European cross-fertilization that nurtures more and more the 
 
 
38
 J. MONNET, Mémoirs, Paris, Fayard, 1976, p. 426. 
39
 D. BERLIN, Organisation et fonctionnement de la Commission, in S. Cassese (ed.), The European 
Administration, Bruxelles, IISA, 1988, p. 27. 
40
 The Commission is composed by actors whose independence is beyond doubt and shall respect 
full independency in carrying out its functions, as Article 17 TEU prescribes.  
41
 G. JELLINEK, Allgemeines Staatslehre, 1900, Teoria generale del diritto e dello Stato, Milano, 
Giuffrè,1948, p. 10; S. ROMANO, Osservazioni sulla natura giuridica del territorio dello Stato (1902), 
Scritti minori, Milano, Giuffrè, 1952, p. 206. 
42
 S. CASSESE, L’arena pubblica: nuovi paradigmi per lo Stato, 2001. 
43
 G. DELLA CANANEA, Is European Constitutionalism Really “Multilevel”?, 2010, p. 307.
3. The notion of EU Administrative Law. 
 
Cainca L. 
24 
 
development of what has been named by political scientist as a “multi-level governance”
44
, 
made of increasing functional links among the Union and its Members, rendering national 
administrative law instrumental to Community law implementation
45
, with a perspective 
that, well aware of the supranational paradigm, tries to look forward to the role of 
interactions of EU and national sources, under construction of a “composed constitutional 
system (Verfassungsverbund)”
46
: <<authority and policy-making are shared across multiple 
levels of government – subnational, national and supranational>>
47
. The building maintains 
at the basis that plurality as outcome of the separation des pouvoirs
48
, but it extends flexibly 
towards what should be better framed as institutional balance
49
, admitting interactions 
and juxtaposition of functions to reach horizontally that common and overarching 
objective of fostering effectiveness of Union law, delivering, in administrative terms, 
support, coordination and supplementation with regards to Member States actions and 
administrative capacity as Articles 6 and 197 TFEU recalls. Effectiveness results first and 
foremost as a guiding line not only for the supranational actors but for all the organs at 
the national level within their respective powers, imposing on the competent authorities a 
duty of impeding every kind of norm or practice of national vein that might be in a counter 
position to that achievement
50
. <<Effectiveness has evolved to being the gold standard, 
the overarching touchstone for determining the EU credentials of national rules and 
 
 
44
 G. MARKS; L. HOOGHE; K. BLANK; European Integration from the 1980s: State-Centric v. Multiple-Level 
Governance, J. Common Mkt. Stud. 34, 1996, 341 and seq; F. SCHARPF, Introduction: The Problem-
Solving Capacity of Multi-Level Governance, Journal of European Public Policy 4, 1997, 520 and seq. 
45
 F. MERUSI, Sentieri interrotti della legalità, Bologna, 2007, p. 34; S. CASSESE, Le basi costituzionali, 
Trattato di diritto amministrativo, Diritto amministrativo generale, I, Milano, 2003, 180 ss. 
46
 I. PERNICE, The Treaty of Lisbon: Multilevel Constitutionalism in Action, Columbia Journal of 
European Law 15, 2009, p. 352. 
47
 G. MARKS; L. HOOGHE; K. BLANK; cit.  
48
 The separation of powers (legislative, judicial, executive) is a mandatory feature of constitutional 
assets as we recall from old revolutionary chapters of our modern history. According to C. 
MONTESQUIEU (in De l’esprit des lois, 1748) the separation of powers was essential both for the 
government and to safeguard liberty of citizens, accordingly the Déclaration des droits de l’homme 
et du citoyen (approved by the French National Assembly on 26
th
 August 1789) at Article 16 
determines that there could be no constitution if separation of powers and the guarantee of rights 
are not ensured <<Toute société dans laquelle la garantie des droits n’est pas assure ni la separation 
des pouvoirs déterminée, n’a point de Constitution>>. 
49
 K. LENAERTS, Some reflections on the Separation of Powers in the European Community, CML Rev. 
28, 1991, 11 and seq; P. CRAIG, Constitutions, Constitutionalism and the European Union, European 
Law Journal 7, 2001, 128 and seq. 
50
 Judgment of 4 December 2018, Minister for Justice and Equality, Commissioner of An Garda 
Siochàna, C-378/17, EU:C:2018:979, §§54-56.
3. The notion of EU Administrative Law. 
 
Cainca L. 
25 
 
remedies>>
51
. Primacy must nevertheless be respected, it <<requires not only the courts 
but all the bodies of the Member States to give full effect to EU rules>>
52
.  
On the way of appreciation of a “multilevel constitutionalism”
53
 not anchored to 
hierarchical connotations
54
, the dimensions of post-national constitutionalism, the 
correlation among EU and national law and, lastly, citizenry, are all matters that have to be 
taken into consideration as it was already glanced in the previous paragraph. <<The 
European Union is far more integrated in the Member States than the Member States are in 
the European Union>> would have said K. LENAERTS, I. PERNICE would have admitted that 
the EU <<is not a State, but a supranational polity based upon States>>
55
, revealing the 
need of disclosing the “post-national” dimension of those “familiar categories” of which 
constitutionalism is part
56
. The growing constitutional intertwinement”
57
 depicts the 
complexity of the mutual development of constitutional traditions and the EU order. 
Observers must be sure to understand the transformational institutional processes the 
Union brings in whenever accession is formalized, sovereignty and internal structures of 
its Member States are incrementally and almost irreversibly affected. The Europeanisation 
refers to this top-bottom perspective which <<transcends specific areas of law and refers 
to the evolution, adaptation and convergence of processes, methodologies and institutional 
behavior at the national level. It is a dialectical, iterative, and dynamic process […]>>
58
. An 
enlightening case at the Court of Justice might be useful to represent the complexity of 
reverberations that the Union telluric movements give to the administrative and 
institutional settings of its Member States: in Coman and Others it is clearly visible the 
 
 
51
 T. TRIDIMAS, The ECJ and the National Courts: Dialogue, Cooperation, and Instability, in The Oxford 
Handbook of European Union Law, 2015, Oxford University Press, pp. 403-430. 
52
 Judgment of 4 December 2018, Minister for Justice and Equality, Commissioner of An Garda 
Siochàna, C-378/17, EU:C:2018:979, §39. 
53
 I. PERNICE, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-
Making Revisited, CML Rev. 36, 1999; I. PERNICE, F. MAYER, De la Constitution composée de l’Europe, 
Revue trimestrielle de droit européen 36, 2000; I. PERNICE, The Treaty of Lisbon: Multilevel 
Constitutionalism in Action, Columbia Journal of European Law 15, 2009. ;I. PERNICE, Constitutional 
Law Implications for a State Participating in a Process of Regional Integration: German Constitution 
and “Multilevel Constitutionalism”, in E. REIDEL (ed.), German Reports on Public Law, 1998, 40. 
54
 D. J. ELAZAR, Il “principio federale”: identità e differenze, in A. LORETONI (ed.), Interviste sull’Europa, 
Integrazione e identità nella globalizzazione, 2001, 44; G. DELLA CANANEA, Is European 
Constitutionalism Really “Multilevel”?, 2010, p. 308. 
55
 I. PERNICE, The Treaty of Lisbon: Multilevel Constitutionalism in Action, cit, 352.  
56
 Ibidem. 
57
 B. DE WITTE, The National Constitutional Dimension of European Treaty Revision, Walter Van 
Gerwen Lectures 2, 2004, p.4 and seq. 
58
 T. TRIDIMAS, The General Principles of EU law and the Europeanisation of national laws, in Review 
of European Administrative Law, vol. 13, n.2, Paris Legal Publishers, 2020, p.5
3. The notion of EU Administrative Law. 
 
Cainca L. 
26 
 
“boomerang” effect
59
 that compose that abovementioned intertwining. Mr. Coman and 
Mr. Hamilton would not have had the chance to question the same sex marriage 
recognition if the quarrel would have regarded as a mere internal situation, so a matter of 
sole national competence. The main target of the preliminary ruling, namely the 
interpretation of Directive 2004/38/EC
60
, provided for the right of family reunification for 
Union citizens but lacked purposely of a precise definition for the term “spouse”
61
, indeed 
at the end of the extensive travail préparatoire the co-legislators opted for leaving a 
normative gap to not restrict the scope of application of the Directive and the connected 
rights. The interinstitutional consensus among the different powers was clearly confirmed 
by the Court of Justice, that did not hesitate to assert that the term “spouse” <<is gender-
neutral and may therefore cover the same-sex spouse of the Union citizen concerned>>
62
, 
highlighting that the person’s status, for which marriage is undoubtedly relevant, is a 
matter of Member State competence, for which they <<are thus free to decide whether or 
not to allow marriage for persons of the same sex>>
63
. Nevertheless, since the matter of 
the dispute involves, inter alia, the right to move and reside freely of Union citizens, 
Member States discretion is tied to full compliance with EU law
64
. Averting the chance of 
depriving the Directive and Treaty norms of their effectiveness, Member States are thus 
obliged to refrain from the application of their own national law if that might bias the 
rights and freedom recognized by Union law, creating then a differentiated treatment from 
one Member State to another
65
. In this sense a lawfully recognized marriage in one 
Member State (Belgium in this case) has to be recognized and protected as well by other 
Member States (Romania) when free movement of Union citizens is at stake
66
, leaving 
national competences apparently unaltered, anyway, in practice, like a boomerang, 
indirectly influenced, politically forcing each Member State to provide for a normative 
remodeling to not unsettle the democratic counterpart, nor create a discriminatory or 
differentiated environment within its own territory, where, as this case portrays, the 
 
 
59
 Personal consideration of the author. 
60
 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right 
of citizens of the Union and their family members to move and reside freely within the territory of 
the Member States. 
61
 Article 2 of Directive 2004/38/EC provided in paragraph (2): “family member” means: (a) the 
spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the 
basis of the legislation of a Member State, if the legislation of the host Member State treats registered 
partnership as equivalent to marriage, and in accordance with the conditions laid down in the relevant 
legislation of the host Member State; 
62
 Judgment of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, §35. 
63
 Ivi, §37; Judgment of 24 November 2016, Parris, C-443/15, EU:C:2016:897, §59. 
64
 Judgment of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, §38.  
65
 Ivi, §39. 
66
 Ivi, §40.
3. The notion of EU Administrative Law. 
 
Cainca L. 
27 
 
recognition of the same-sex marriage and the derived right of residence has been 
inevitably reached, even in contravention to national or constitutional dispositions. Only 
solid argumentations regarding the public interest, which are proportionally and 
legitimately pursued by national law, with that displaying a genuine and sufficiently serious 
threat to a fundamental interest of society
67
, in the respect of a strict margin of 
appreciation that shall not be unilaterally determined by the Member State without any 
control by the EU institutions
68
, may justify the restriction on the right to freedom of 
movement
69
, otherwise, even tough national identity is utterly inherent to the political and 
constitutional structures of the Member States and shall be respected by the Union
70
, they 
must not contravene EU law or impair the full enjoyment of the rights stemming from it.  
 
Diving into recapitulation of the main elements of distinction with national administrative 
patterns of this complex hybrid EU organization, excessively deemed also as “governance 
without government”
71
, various elements must be recalled. One is the “bicep nature”
72
 of 
the EU executive, spread over two heterogeneous organs, namely the supranational one, 
the Commission, and the intergovernmental one, the Council. Then, the lack of autonomy 
is another remarkable feature to pin, since the EU administration, except for those areas 
of exclusive competence
73
, delivers its action within the lighthouses of subsidiarity, sincere 
cooperation and proportionality principles, which deserve to be synthesized briefly. 
According to the former, the Union action over the non-exclusive competences the 
Treaties have conferred
74
, is governed by a qualitative limit for which the Union might act 
as long as the objectives related to the proposed action cannot be sufficiently achieved by 
 
 
67
 Ivi, §44. 
68
 Ibidem. 
69
 Ivi, §41. 
70
 Article 4(2) TEU. 
71
 G. MARKS; L. HOOGHE; K. BLANK; European Integration from the 1980s: State-Centric v. Multiple-Level 
Governance, J. Common Mkt. Stud. 34, 1996, 341 and seq. 
72
 G. DELLA CANANEA; C. FRANCHINI, M. MACCHIA; I Principi dell’Amministrazione Europea, terza ed. 
Giappichelli Editore, 2017, p. 24. 
73
 Article 3 TEU disposes the exclusive competence over: (a) customs union; (b) competition rules 
for the functioning of the internal market; (c) monetary policy for the Eurozone; (d) common 
fisheries policy; (e) common commercial policy; besides the conclusion of international agreements 
when is provided for a legislative act of the Union, necessary to exercise its internal competence or 
if it may affect common rules or alter their scope.  
74
 In the personal consideration of the author of this work, the principle of conferral of the Union 
competences disciplined by Article 5 TEU stays at the EU institutions and Member States as the 
wheels stay at the bicycle.