Towards a Draft Common Frame of Reference for Public Law?

Abstract

It is common knowledge that EU-harmonised substantive public law is applied and enforced by national administrative authorities. The Member States are in principle competent to determine (and responsible for determining) the applicable procedures and the way they are organised. In other words, European law does not in principle concern itself with the manner in which European law is applied within the national legal orders. This is known in European law as the principle of procedural autonomy. As an expression of the subsidiarity principle, procedural autonomy implies a degree of variation in the manner in which substantive European law is applied in the Member States of the European Union. If the European legislature considers that these differences have become too great in any particular area, it may decide to take legislative action and harmonise national legislation in that area. In such cases, it is not only the substantive law that is harmonised but also the manner in which Member States must apply it. It is against this background that I wish to comment on the need for harmonisation of non-substantive public law, what form it should take and which actors should play a leading part.