The implications of the emergence of Multilevel Administrative Networks in light of the criticisms directed at the Costanzo obligation

Through the Fratelli Costanzo case (Case 103/88) the European Court of Justice (ECJ) established an obligation, addressed to all organs of the national Public Administrations, to disapply any national provision irremediably incompatible with European Union Law[1]. What became known as the “Costanzo obligation” sparked intense debate among scholars, as it emerged with the purpose of strengthening the effective application of EU Law, but later revealed itself to be a potential threat to that same effectiveness.

Over 30 years since this ruling, European Administrative Law has vastly evolved in its organization and functioning. Intricate networks that allow the exchange of information, best practices and guidance on the application of EU Law have been developing among counterparts in different Member States; and the idea that national Administrations lack the necessary expertise to execute highly complex interpretative exercises can start to be laid to rest with the emergence of Multilevel Administrative Networks.

 

The limitations of the Public Administration under the Costanzo obligation

The body of case law produced in the early decades following the establishment of the ECJ transformed it into a platform for the promotion of the integration impetus of the EC Treaty[2]. At this time, the ECJ sought to achieve a balance between: (i) expanding EU Law within national legal orders; and (ii) safeguarding the reluctance expressed by Member-States in transferring their sovereignty to a new supranational institution.

In this context, the Fratelli Costanzo case, and the resulting Costanzo obligation, represented an opportunity to ensure that each Member State, as a whole, fulfils the obligations imposed upon them by EU Law. Yet, doubts on the success of such a solution started as early as the Opinion of Advocate-General Otto Lenz on the case, who underlined the risks of conferring such an obligation to entities who are unable to submit questions of interpretation to the ECJ relating to provisions they may have to disapply, and thus imposing them act at their own risk[3].

Indeed, the execution of highly complex hermeneutical exercises, for which, in theory, Administrative entities do not possess the required expertise – as it is a competence normally conferred to the national courts – coupled with the fact that, as a general rule, the Administration does not have access to any mechanism that would allow them to dispel arising doubts on the (dis)application of national provisions, has led many scholars to consider that the Costanzo obligation may raise serious tensions with the legal certainty of application within EU Law, as well as frictions with the principle of legality and separation of powers[4]. Nonetheless, the ECJ has been adamant of this formula, reiterating the Costanzo obligation in many subsequent judgements[5].

 

The emergence of Multilevel Administrative Networks and their effect on the Costanzo obligation

In trying to address the ever more noticeable effects of globalization and realizing the need to achieve collectively what they could no longer accomplish within their own jurisdictions[6], EU Member-States, along with the Union itself, began to seek coordinated approaches to the new concerns they were facing.

In a mostly spontaneous fashion, intricate networks of actors across the EU began to develop, allowing for the creation of sectorial platforms destined for the exchange of information, best practices and advice among counterparts that strive to achieve a uniform and consistent application of EU Law[7]. This phenomenon, hereinafter referred to as “Multilevel Administrative Networks”, reconciled the Union’s concern with the integration of the internal market with the role of national authorities in the implementation of European policies, by equipping these authorities with expert guidance that enables them to address their doubts in the course of the decision-making process and, effectively, apply EU Law.

It must be pointed out, however, that the concrete structure and functioning of Multilevel Administrative Networks is the result of the evolution of each sector where they developed[8], thus giving rise to significant differences in the role performed by the authorities that compose them, as well as the level of autonomy granted to them. Nevertheless, the collaborative and cooperative nature that is common to all sectors is at the crux of why national authorities within Multilevel Administrative Networks are equipped to fulfil the European mandate to disapply national provisions incompatible with EU Law without raising concerns in respect of the principle of legal certainty.

The emergence of such networks marks a turning point in the questions raised by the Costanzo obligation. The idea that national Administrations would be obliged to, at their own risk, make decisions for which they do not possess the required expertise is replaced by the rise of national authorities that, by being highly specialized in their sector, can readily identify incompatibilities between national and European legal instruments. They are also further supported by their European counterparts, enabling them to discuss and analyze complex issues and promote uniform implementation practices across the Union through the monitoring of the quality of information received from various other authorities.

And while Multilevel Administrative Networks cannot assure that a fully coherent and uniform application of EU Law has been attained, it appears that, in the context of the Costanzo obligation, the issues that concerned legal scholarship have, to a large extent, been addressed.

In fact, considering the evolution of European Administrative Law, the Costanzo obligation can now start to be seen as an asset for the effectiveness of European norms and policies. Since these national authorities integrated into a Multilevel Administrative Network possess the necessary experience, knowledge and access to cooperative platforms, they are in the best position to swiftly tackle any incompatibility that arises between national and European norms, rather than waiting for that conflict to be resolved by the national courts.

This was the case of the Portuguese Data Protection Authority’s (CNPD) Deliberation/2019/494[9], that determined the non-application of a significant number of provisions contained in Law n. º 58/2019 of 8 august[10], in the context of personal data processing cases that, in future, it would assess. Through its own analysis of this legal instrument, the CNPD concluded that the application of those specific provisions could restrict, undermine or reduce the effectiveness of the GDPR[11] and so, instead of waiting for the courts to eliminate them from the legal order, the Costanzo obligation was invoked in order to guarantee the effective application of that Regulation.

Despite going relatively unnoticed in recent years, cases such as this highlight the importance that the Costanzo obligation can still represent in the pursuit of a consistent and uniform application of EU Law, thus warranting its renewal as a valuable instrument in the EU legal toolbox.

 

Post by: Andreia Mendes

 

[1] Fratelli Costanzo. Case 103/88 of 22 June 1989, §31.

[2] v. Article 2 of the Treaty of Rome of 25 March 1957.

[3] Opinion of AG Carlos Otto Lenz delivered on 29 April 1989, §36.

[4] v. inter alia, Maartje Verhoeven, The Costanzo Obligation (Doctoral Thesis, Utrecht University, 2011); Rui Tavares Lanceiro, O princípio da cooperação leal e administração: a europeização do procedimento de prática de acto administrativo (Lisbon: AAFDL Editora, 2019); Joaquín Sarrión Esteve, La Administración Pública ante la Primacía y Efectividad del Derecho de la Unión Europea, Estudios de Deusto, Vol. 68, N.º 2 (2020); Edorta Cobreros Mendazona, La aplicación del principio de primacía del Derecho de la Unión Europea por la Administración, Revista Vasca de Administración Pública (RVAP), N.º 103 (2015).

[5] v. inter alia, Kampleman. Joined Cases C-253 to 258/96 of 4 December 1997, §47; Dominica Petersen. Case C-341/08 of 12 January 2010, §80; Günter Fuß. Case C-243/09 of 14 October 2010, §§61-63; Gavieiro Gavieiro e Iglesias Torres. Joined Cases C-444 e C-456/09 of 22 December 2010, §73; Rosado Santana. Case C-177/10 of 8 September 2011, §53; Amia. Case C-97/11 of 24 May 2012, §38.

[6] Slaughter and Hale, Transgovernmental Networks and Multi-level Governance in Handbook on Multi-level Governance, Henrik Enderlein; Sonja Wälti e Michael Zürn (Edward Elgar Publishing Limited, 2010), 358.

[7] Filipe Brito Bastos, Beyond Executive Federalism; The Judicial Crafting of the Law of Composite Administrative Decision-Making. (Doctoral Thesis, European University Institute, 2018), 84.

[8] Ellen Mastenbroek and Dorte Sindbjerg Martinsen, Filling the gap in the European administrative space: the role of administrative networks in EU implementation and enforcement, Journal of European Public Policy, Vol. 25, N. º 3 (2017), 424.

[9] v. Comissão Nacional de Proteção de Dados, Deliberation/2019/494 of 3 September 2019.

[10] Law n.º 58/2019 of 8 august assures the implementation, in the Portuguese legal order, of the GDPR.

[11] Comissão Nacional de Proteção de Dados, Deliberation/2019/494 of 3 September 2019, 2-11.