Derivative illegality in European composite administrative procedures

Abstract

This article considers the review of legality in composite procedures – i.e. European administrative procedures where national and EU authorities decide jointly. It explores how EU courts deal with the question of whether, and to what extent, irregularities occurring at national level are relevant for the legality of final decisions adopted at EU level. It presents two claims: first, that EU courts have developed a differentiated doctrine of “derivative illegality”, or “contamination effects” from national to European stages, depending on the level at which discretion is located. Such illegality is categorically excluded where national authorities predetermine the procedure’s outcome, and admitted under certain conditions where the EU level enjoys discretion to diverge from the national level. Second, it is argued that the case law’s rejection or limitation of derivative illegality in composite procedures allows the ECJ to observe four constitutional principles: the prohibition of EU courts to review national measures, the autonomy and uniformity of EU legal order, and the rule of law.