Year:    2008

Author:    Englisch, Joachim

Die Verwaltung, Vol. 41 (2008), Iss. 1 : pp. 99–116

Abstract

In principle, European Community Member States enjoy procedural autonomy regarding the administration of Community law. However, this principle often clashes with the fundamental requirements of uniform application and full effect of Community law. In particular, conflicts arise when administrative acts violate primary or secondary EC law but are not susceptible to challenge any more if national rules governing their annulment are respected. The focus of the European Court of Justice (ECJ) to date in this regard has been on government subsidies granted contrary to Art. 87 et seq. of the EC Treaty. But a similar problem occurs when national administrative law precludes an appeal or court action against unfavourable acts, such as the levying of fiscal duties after the expiry of certain time limits. In Germany, authorities generally have discretion as to whether to rescind such a final act if it is unlawful. They are not even obliged to consider doing so unless the administrative decision is ‘manifestly incompatible‘ with the requirements of statutory or constitutional law or if the legal situation has subsequently changed.

This article demonstrates that a subsequent ruling of the ECJ clarifying the interpretation of a Community law provision is not tantamount to a change of the legal situation. A final administrative act which turns out to have been issued contrary to EC law may also not be disregarded in reliance on the ECJ's Ciola judgment since the conflict cannot be resolved by simply resorting to the concept of primacy of EC law. Rather, the principle of legality and the legal objectives sought to be achieved must be weighed and balanced against the principle of legal certainty within the framework of Community loyalty enshrined in Art. 10 of the EC Treaty. As has been pointed out recently in the i-21 Germany case, a discretionary determination guided by these considerations does not render the exercise of rights conferred by the Community legal order excessively difficult if it ultimately gives precedence to legal certainty. EC law must respect disparities in the importance attributed to legal certainty in national legal orders. According to the principle of equivalence, however, German authorities must seriously consider rescinding an administrative decision if it is manifestly incompatible with Community law.