You worked within the framework of a European collaborative research project on the comparative law book „Judicial Review of Administrative Action“. The book examines administrative law in France, the United Kingdom, the Netherlands and Germany. What was your objective?
Hermann Pünder: Anika Klafki and I were responsible for two extensive chapters: the judicial review standards and the liability issues for unlawful and/or particularly burdensome administrative actions. When I was asked to participate in this project, as a legal comparative expert, I was simply thrilled. The project is highly ambitious, and you don't come across something like this every day.
I was lucky that Anika Klafki, a senior assistant in my department (now junior professor with tenure track at the University of Jena), immediately agreed to join the project. We met a high caliber team of lawyers from the universities of Maastricht and Utrecht in the Netherlands, the Université Panthéon-Assas and the University of Limoges in France and the University of Hull in England. Jacques Ziller, from the University of Pavia, and Jean-Bernard Auby, from Sciences Po in Paris, are two reputable experts for comparative law. In discussions with foreign colleges we were able to draw directly from the sources. It was a special kind experience for comparative lawyers!
Why is a comparative examination of administrative law important in Europe?
Anika Klafki: Over the past decade, the influence of EU law on national administrative laws has continued to grow. However, the manner in which the judicial systems of the individual countries organize the control of administrative decisions still varies considerably. For example, in Germany and France, there is an independent administrative jurisdiction. The United Kingdom, on the other hand, has a uniform court system. This has a direct impact on who is responsible in proving the disputed points in court proceedings, which legal principles are used to assess the cases and also to what extent judicial control is measured. By comparing the legal systems, both similarities and differences can be identified. The book thus makes an important contribution to understanding the extent to which judicial control of administrative measures can be harmonized in Europe, as well as in which areas fundamental differences exist between legal cultures. This is truly an important aspect for the European integration process.
What were some challenges you faced while working on the book?
Hermann Pünder: We had a variety of challenges! Comparative law is always a complex undertaking. The first task is to identify the common questions. Only then can one examine which solution models exist for the legal systems examined in the comparison. This requires an intensive exchange between the experts of the different legal systems. Since 2014, while preparing for our book, all participants have met three times in Brussels and once at Bucerius Law School in Hamburg, for workshops lasting several days. Among other things, we had to agree on certain terminologies. For instance, when Germans talk about an "administrative act" (“Verwaltungsakt”), we mean something different from our English counterparts, or what the French refer to as an "acte administratif". The term Rechtverordnung – (legal regulation) is also problematic. It is almost impossible to translate into English without some kind of misunderstanding. In short: the work was very complex and demanding. However, it was all worth it. In 2018 our book was presented to a larger legal audience at the University of Maastricht. The reactions were - to put it modestly - extremely benevolent. We are optimistic that the work will sustainably enrich comparative law teaching as well as the science of administrative law.
The project and the authors
The book "Judicial Review of Administrative Action" (Hart Publishing, ed. Chris Backes, Mariolina Eliantonio) is part of the project "Ius Commune Casebooks for the Common Law of Europe" by the Walther van Gerven Institute. It was funded by the renowned Jean Monnet Programme of the European Commission. The aim is to create separate "casebooks" for all areas of law containing annotated text extracts from law, judgments and literary contributions, showing how countries in Europe organize their laws and deal with certain problems. The works are aimed at students and jurists. So far, the focus has always been on civil law – but now with the "Judicial Review of Administrative Action", for the first time public law is also being intensively examined.
Prof. Dr. Hermann Pünder, LL.M. has held the Chair of Public Law, Administrative Sciences and Comparative Law at Bucerius Law School since 2002.
Dr. Anika Klafki, LL.B (Bucerius), was a senior assistant at the Chair of Public Law, Administrative Sciences and Comparative Law at the Bucerius Law School. Since October 2019 she is a junior professor (tenure track) for public law and transnational administrative law at the Friedrich Schiller University Jena.
