| 1. | Due to the primacy of Union law, the provisions of national administrative law are specifically reformulated and amended in the event of a conflict of law. In view of the Member States’ fundamental responsibility to implement Union law, the question of whether, and if so how, the European level may exercise a competence is crucial (par. 1). |
| 2. | Art. 5 TEU is the “key standard” for the exercise of competence at the European level: According to the European Commission’s Communication of 23 October 2018, Art. 5 TEU is to be applied in all institutions and at all levels on the basis of a common grid (par. 2–8). |
| 3. | According to Art. 5 (2) TEU, the first step is to ask whether the EU can act at all (“can-question”), i. e. whether the Member States have assigned a competence to the EU in the Treaties in accordance with the principle of conferral (par. 2). |
| 4. | The second step, related to the subsidiarity principle governing the concrete exercise of competence, involves examining whether the Union may make use of the competence it is entitled to in a specific case (“whether-question”). In this respect, in accordance with Art. 5 (3) TEU, the cross-border dimension and the European added value of a measure taken at EU level are pivotal criteria (par. 10–16). |
| 5. | In the third step of the examination according to Art. 5 (4) TEU, the planned measure must comply with a proportionality test regarding its nature, scope, and intensity. The question here is by what means the Union should act (the “how-question”). In this respect and in accordance with the European agenda for better regulation, a legislative “toolbox” should pave the way for more flexible European legislation concerning the administrative competences of the Member States (par. 18–23). |
| 6. | Depending on the type of enforcement (at EU level or Member State level) and the form of enforcement (direct or indirect), the principles of subsidiarity and proportionality establish different requirements for the exercise of competences (par. 25–32). |
| 7. | If direct enforcement of European administrative law is provided for in the Treaties (see e. g. Art. 108, 162 et seq., 170 et seq., 174 et seq. TFEU) or if the Treaties establish a competence for a certain policy area, the European legislature is allowed to adopt flanking provisions of administrative procedural law limited to the respective subject area. In addition to the possibility of such area codifications, Art. 298 (2) TFEU, which was inserted into primary law as part of the Lisbon Treaty, now also permits a general codification of European administrative procedural law (par. 38–39). |
| 8. | In this respect, the requirements arising from the principles of subsidiarity and proportionality for the codification of the EU’s own administrative procedural law are rather limited, since the relevant provisions are addressed to the Union alone and therefore do not impinge on the administrative competences of the Member States (par. 40 and 52). |
| 9. | Most scholars hold that the Treaties do not include a competence for a general codification of administrative procedural law concerning the Member States’ indirect enforcement of EU law. (par. 41–43) |
| 10. | However, where the Treaties confer on the EU the power to regulate certain policy areas (e. g. Art. 114 or 192 TFEU), the European legislature may also adopt rules to accompany the Member States’ administrative enforcement of EU law on the basis of implied powers. The principles of subsidiarity and proportionality apply to this as well as to the transfer of administrative competences to the EU and the establishment of agencies (par. 49–52). |
| 11. | As a concrete expression of the general idea of subsidiarity and proportionality, the case law of the ECJ recognises the principle of the Member States’ procedural autonomy, which limits the EU’s powers in the field of administrative enforcement, as a general principle of law (par. 44–46). |
| 12. | However, according to the ECJ’s case law, this principle, for its part, is limited by the principles of equivalence and effectiveness, which in turn are rooted in the principle of loyal cooperation (Art. 4 [3] TEU) and represent a form of procedural solidarity with a view to the European common good (par. 47–48). |
| 13. | In the context of indirect implementation, the EU depends on loyal cooperation (cf. Art. 4 [3] TEU) with the Member States. Here, the effective enforcement of Union law is dependent on functioning administrative structures in the Member States and a national administrative law open to integration (par. 47 and 56). |
| 14. | In view of the many and varied implementation deficits as well as increasingly complex administrative tasks (e. g. in the fields of financial market regulation and banking supervision, protection of external borders, and migration or cyber security) on the one hand, and improved functioning of the EU in central policy areas on the other, a tendency towards the expansion of direct implementation and EU self-administration, which is closely linked to the process of so-called “agencification”, is unavoidable (par. 51–56). |
| 15. | Therefore, within the framework of a new working method with elements of cooperative law enforcement, the principles of subsidiarity and proportionality in the sense of a graduated responsibility (Auffangverantwortung) shape the European exercise of competence: If the enforcement of EU law falls seriously short, European institutions must be able to support Member States with implementation, by means of European agencies making recommendations and offering financial, personnel, or technical resources (par. 53–58). |
| 16. | If national authorities are unwilling to cooperate in the common interest (defined by European common goods), European agencies must be able, as a last resort, to take over tasks from national administrations for a certain period of time (e. g. during a crisis situation) in order to maintain the functioning of key EU policies (par. 58–63). |
