Administrative Law in the European Union: The Liberal Constitutional Paradigm and Institutionalism as an Imperfect Alternative

EU administrative law – both as law and as a scholarly field – has, to a significant extent, suffered from a tendency to seek analogies with categories of state public law, more especially perhaps in its general legal principles and norms common to the various sectors of EU administrative power. I argue in this chapter that this normative approach, which has largely shaped its judicial and scholarly development and has contributed greatly to bringing about an administrative rule of law in the European Union, is limited. Phenomena that, while present in other legal systems, are core to the functioning of the EU legal order cannot be suitably tackled with conceptions of public law inspired by the binary logic of protecting individual legal spheres from the exercise of public authority that has largely grounded administrative law in state settings. In the final section, I propose an imperfect alternative perspective on public law, drawing on the institutionalism of the Italian jurist, Santi Romano.