General Principles of German and European Administrative Law – A Comparison in Historical Perspective

Abstract

From the perspective of English jurists, the incoming tide of Community law still carries some suspicious pieces of flotsam onto the shores of the English legal system. It may be that the origin of certain general principles of Community law has contributed to that suspicion. The principles of proportionality1 and of the protection of legitimate expectations,2 for instance, have a reputation of being 'made in Germany. ' Their claim to acceptance in English administrative law is met with reservations.3 English lawyers may in fact think that European administrative law is the Trojan horse by which a continental tradition is about to supersede well-established English principles of administrative law and judicial review. They may also legitimately ask themselves whether their system is not particularly susceptible to change, since the Common Law tradition is the exception rather than the rule in the European context. German administrative law has acquired the reputation of being influential in the shaping of the general principles of European administrative law4 as they are being developed by the European Court of Justice and also, to a certain extent, by the European Commission and Court of Human Rights.5 Such a proposition, however, is difficult to prove or to disprove since it is frequently impossible to trace the origins of rules directly.6 In one or other form, other national systems of administrative law also know the concepts and principles which are at issue here. It is quite obvious, however, that these principles have acquired a particular significance and an extraordinary legal force in Germany. For these reasons, this article adopts an indirect approach. In Part One, some important principles of European administrative law are analysed in order to determine whether they have an equivalent in German administrative law. The relevant differences between these two systems and the system of English administrative law are also examined. Part Two attempts to explain why some of