week 2 Flashcards
what is a ‘public body/authority’?
- generally, a state body or a body linked to the government that is expected to act in the public interest
- powers are usually defined in a statute
why does defining what a public body/authority is is important?
question of whether you can invoke … against the authority
=> fundamental rights
- public authority directly bound by them
- cannot directly invoke in horizontal relationships BUT can still have some effect
=> principles of good administration
- public authorities directly bound by them
- private bodies NOT bound
=> judicial review
- public authority: administrative court
- private body: civil court
types of public authorities?
- central governmental level
- lower governmental level
- regulatory agencies
- private organizations that qualify as public authorities
central governmental level?
entrusted with pursuit of certain public interests (ex: tax authorities)
lower levels of government?
- focused on resolving issues at a more local level
- entrusted with more typical tasks
- tasks can depend on the context in which they operate
(ex: mayors; municipal authorities…)
regulatory agencies?
oversee markets and ensure compliance with public regulation (ex: food standard agencies)
when do private organizations qualify as public authorities?
- when there is a statute to this effect
- if NO statute => 3 common cumulative criteria: public task/service; public funding (more than 50%); public supervision
private regulators: sources of authority?
- statutory mandate: statute that entrusts a private organization with the realization of a certain public task
- contractual mandate
main regulatory forms?
- self-regulation (private regulation)
- co-regulation (enforced self-regulation)
- public regulation (state or governmental regulation)
self-regulation?
agreement between the parties involved in the relevant activity to regulate their own behavior through the creation of a regulatory body entrusted with the task of adopting and enforcing a code of conduct for its conduct
strengths and weaknesses of self-regulation?
=> strengths:
- emphasis on consent and co-operation of the private sector as means through which behavior is regulated
- high level of technical and expert knowledge
- administrative costs internalized
- more efficient
=> weaknesses:
- may not always serve the public interest
- lack of democratic legitimacy
- no separation of powers
public regulation?
a set of rules adopted by government to control the operation of markets and accompanied by mechanisms for monitoring and enforcement, usually by a specialist public regulatory agency
strengths and weaknesses of public regulation?
=> strengths:
- government’s capacity to exert control over the regime in the pursuit of the public interest
- stronger enforcement
- checks and balances
- less room for the public interest to be hijacked by private interests
=> weaknesses:
- lack of sufficient expert and technical knowledge
- high administrative costs to be borne by taxpayers
co-regulation?
government ‘delegates’ the task of regulating a particular sector-profession to a self-regulatory industry body or professional associations but retains a residual oversight role
strengths and weaknesses of co-regulation?
=> strengths:
- combines strengths of self-regulation and public regulation while minimizing their weaknesses
=> weaknesses:
- government’s involvement may not be enough to ensure that the regime serves the public interest
multi-level regulation: at what level does the problem occur?
- local/regional
- national
- supranational
- global
Stricter capital requirements for banks => the interplay between soft and hard law in the multi-level system?
- non-binding recommendations by the Basel Committee on Banking Supervision (a primary global standard setter for the prudential regulation of banks)
- EU capital requirements Directive and Regulation
- National regulation of bank capital
European system of financial supervision: ESAs + ECB?
- ESAs = European Supervisory Authorities
- ECB = European Central Bank
Towards corporate social responsibility (CBS): from soft to hard law?
- UN Guiding Principles on Business and Human Rights (soft law instrument)
- OECD Guidelines for Multinational Enterprises (non-binding)
- EU Corporate Sustainability Due Diligence Directive (binding obligations)
key trends?
=> regulatory power moving away from the state and becoming less hierarchical
- regulatory standards being increasingly produced by transnational networks of inter-governmental institutions and by non-governmental institutions
- interplay between soft and hard law: non-binding standards may lead to hard law
=> towards administrative law beyond the state
what is global administrative law?
- principles and rules applicable to processes of ‘administration’ undertaken in ways that implicate more than purely intra-state structures of authority
- studies interactions between global, national and regional/local public and private actors in the pursuit of public goals
- not only global = also includes national, regional/local actors and rules
- not only administrative = also includes many constitutional and private law elements
- not only law = also includes many non-binding (soft law) instruments
sports law as global administrative law?
- institutional network that operates at both international and national level and involves both public and private actors
- administrative tasks
- quasi-judicial bodies
objections to global administrative law?
- fragmentation and lack of coherence in global regulation
- ineffectiveness due to non-binding nature
- lack of legitimacy and accountability
law’s role in global administrative law?
- mostly instrumental but its effectiveness may vary
- foundational roles only to a limited extent
=> no single homogenous community based on shared values
=> no democratically legitimate supranational institutions
=> sector-specificity and fragmentation
