The challenges of the new EU regulatory settlement: the case for ‘fluid administrative law’ and controls

 Over the last two decades the shape of the European public administration has changed considerably; the EU has become much more strongly involved in the regulation of very dynamic and fluid market activities. One of the consequences of that has been an increasing reliance on (EU) regulatory agencies to perform the novel administrative tasks. This research project considers the challenges of the new regulatory settlement of the European Union and identifies a tension between the structures of accountability of the liberal-democratic state (i.e. judicial review and parliamentary scrutiny) and the nature of the institutional dysfunctions which these agencies are generating. These difficulties stem, in particular, from internal capacity constraints within the agencies and as a consequence of the much more ‘liquid’ type of market with which the EU is engaging with.

In such a context, having more external and static controls on the regulatory agencies will hardly help to improve things. An alternative ‘framework’ (that of fluid administrative law) should be considered to deal with the challenges of the new administrative state. It promotes constant administrative law principles to coordinate the operation of the agencies and offers institutional tools for the dynamic application of such principles. As the ‘solutions’ for each agency should have to vary (according to the particular and identified problems) the review processes of these bodies could be used to address the required heterogeneity of the controls. Fluid administrative law is both a set of values and an institutional framework that gives ‘life’ to those values. It stands in opposition to a static vision of administrative law, accepts that there is no single set of institutional problems and solutions/controls to be applied to them, and seeks to inject dynamic controls in the public administration.