‘Rectification’ and ‘Irrelevance’ in EU Direct Administrative Procedures: A Systematic and Comparative Analysis

Abstract

The field of EU direct administrative law is steadily growing in importance, and issues relating to the consequences of procedural irregularities on the outcome of the procedure are becoming increasingly relevant. The question of when such a violation remains inconsequential – i.e. does not lead to the act being quashed during judicial proceedings, either because the error was rectified or can be considered irrelevant – is particularly important, as it can have a significant impact on the legitimacy and acceptance of EU institutions as well as their efficiency and effectiveness and EU case law has developed a complex jurisprudence in this regard. The aim of this contribution is to systematize this case law with regard to the instruments of rectification and irrelevance of procedural irregularities. Moreover, it compares these legal instruments to their counterparts in Member States’ administrative systems. The focus is on the observation that the EU case law has developed a complex network of layers and components to decide what consequences violations of provisions relating to form and procedure entail. The comparison with the Member State administrative systems shows – despite differences in detail – that EU courts have not coopted a particular system currently in use in a Member State, but that they often use roughly similar criteria to decide whether an error leads to the annulment of the final decision. This analysis can be fruitful with regard to the recent interinstitutional as well as academic debate about the codification of administrative procedure of the EU direct administration, neither of which have yet discussed the possibility of rectification and irrelevance of procedural errors in a systematic and comprehensive way, even though the jurisprudence of the EU courts has reached a stage that makes this possible. European direct administrative law, procedural errors, consequences of procedural and formal errors, rectification, irrelevance, codification of administrative procedure