Administrative Law Master Quizlet | Quizlet

What is market regulation?

(perspective of scope)

- in the narrow sense, regulation is the deliberate attempts by the state to influence social behavior in the marketplace that may give rise to collective concerns by establishing, monitoring and enforcing legal rules

- in the broad sense, it encompasses all forms of social control, whether intentional or not, and whether imposed by the state or other social institutions

-- states remain central but non-state actors can also produce regulation due to decentralization and networked dynamics

Why are scandals important and what are some examples?

Scandals are important as they demonstrate a market failure (which result in a loss of trust in the system, less money, less development) and helps inform individuals about their spending and the market

-- thus regulation is needed to prevent scandals

Examples:

- Diesel Game Scandal → companies like Volkswagen led consumers to believe that their cars were more environmentally friendly than in reality, cheating emission tests

-- public interest (environmental protection, consumer protection) v private (business profits)

- Theranos → scandal where entrepreneur committed fraud by leading investors to believe she created a tiny blood test pill

-- public interest (public health, investor protection) v private (business profits)

- Sam Bankman and FTX → man promoted himself as an eccentric genius who defrauded billions of USD from investors and sentenced to 25 years in prison

-- public interest (financial stability, investor protection) v private (business profits)

What are the three core functions of regulation?

From a functional perspective, regulation is a control system with:

a. capacity for standard-setting

--- allows a distinction to be made between more or less preferred states of the system

b. capacity for information-gathering or monitoring

--- produce knowledge about current or changing states of the system

c. capacity for behavior-modification

--- change state of the system

What are the three principal issues or logic of market regulation?

1. What is the goal or outcome to be achieved?

2. What standard of conduct is required from market participants?

3. What enforcement techniques are appropriate to ensure compliance?

What different roles can law play?

→ instrumental role (facilitative)

-- law acts as an instrument for shaping social behavior so as to facilitate transactions in the market and to achieve market goals (regulatory mechanism)

→ foundational role (expressive)

-- law lays down the foundations for peaceful cooperation rooted in respect for the rule of law, shaping and constraining the power of institutions

--- acts as a constraint on market regulation like fundamental rights or principles of good administration

What are some differences between private and public law?

Public Law...

- regulates vertical relationships between state and citizens

- pursuit of public interests

- distributive social justice (socially just distribution of goods in society like taxes)

- subject to public enforcement (by public authorities through public law means) - ex ante compliance and deterrence

Private Law...

- regulates horizontal relationship between private persons

- pursuit of private interests

- interpersonal corrective justice

- private enforcement (by aggrieved private parties through private law means) - ex post compensation

*however, the public and private divide has blurred as a result of the increasing use of both public and private law as a regulatory instruments

How do constitutional law and administrative law interact?

→ constitutional law sets a general framework for the relationship between public authorities and citizens like fundamental rights or the power of institutions

→ administrative law sets more specific rules regarding these relationships

-- these often overlap in daily life and social issues concerning administrative measures and personal or civil liberties conflicting

ex: climate activists protesting in the Hague by blocking main roads which sparked concerns about restrictions on right to demonstrate

-- constitutional right may interfere with the administrative functioning of society

ex: COVID pandemic where there existed a conflict between individuals rights to bodily integrity being limited by administrative law obliging citizens to vaccinate until they can travel or return to work

What are the different public interest theories of regulation?

public interest theories suggest that regulation emerges to pursue collective goals and is justified to protect the general welfare of the community

economic public interest theory

→ regulation should pursue the public interest in an economically efficient allocation of resources

-- regulation is a response to market failures (imperfections in the market)

--- correcting market failures increases community's general welfare which justifies regulation as it pursues a public interest and does what the market cannot

**also concerned with behavioral biases like unrealistic optimism, myopia/self-control problems, cumulative cost neglect, ignoring complexity

political public interest theory

→ the collective welfare should not be defined exclusively in terms of efficient resource use but instead place emphasis on other public goals (substantive political approach)

-- regulation can also be justified from public interests such as social justice, preventing harm to future generations and paternalism

--- 'hard' (strong) paternalism - law forces individuals to avoid certain risks

**** individuals are deprived of choice

--- 'soft' (weak) paternalism - the law, without coercion, nudges individuals away from certain risks towards what is generally considered to be a preferable course of conduct

**** freedom of choice is preserved

What are the private interest theories of regulation?

→ regulation emerges to maximize the private interests of certain individuals or groups which may or may not coincidentally promote public interest (often through lobbying)

--- skeptical of public interested regulators who often benefit powerful groups in society so they seek to explain why regulation emerges and why it sometimes fails

- regulatory failure = poor performance in discharging the core tasks of regulation and collective costs of regulation outweigh its benefits

- regulatory capture = specific manifestation of market failure when officials within regulatory institutions who are charged with promoting collective welfare develop such close relationships with regulated entities that they get entangled with private interests

Here, the law plays an instrumental role for shaping social behavior but unlike public interest theories, the law is likely to be a means that undermines collective interests and doesn't benefit general welfare.

What is a market failure? And what are the central causes of them?

→ market failures is when an unregulated competitive market is inefficient as resource allocation is inefficient or prices fail consumers and producers

Four Central Causes:

1. imperfect competition/monopolies

-- monopolies exploit their dominant position by exerting control over prices + establishing profit-maximizing prices which can lead to a regulatory capture

2. externalities

- side effects of an economic activity that affect third parties who are not involved in the transaction

-- negative externality: a harmful side effect not reflected in costs

--- ex: a factory emits pollution, harming the environment and public health—costs not paid by the factory (but may encourage other companies to come up with a solution)

-- positive externality: a beneficial side effect not reflected in benefits

--- ex: a company invests in research and development which may inspire others to produce goods - benefits spread beyond the investor

3. asymmetric information

-- incomplete info = economic agent doesn't have enough info

-- imperfect info = information is not accurate or symmetrically distributed

-- information deficits and bounded rationality - companies have info advantage so regulation tries to balance this asymmetry

4. public goods

-- public goods: commodities shared by the public as a whole

--- these goods are non-rivalrous (marginal cost of providing to an additional consumer is zero) and non-exclusive (consumers cannot be excluded from their consumption)

-- another issue is free-riders who don't pay or abuse the services and goods for free

What is a public regulator and what are the different types?

public authority → no universal definition but generally refers to a state body or body linked to the government that is expected to act in the public interest (powers typically referred to in statutes or public documents)

Types:

a. central governmental level

-- ex: tax authorities, ministries

b. lower levels of government

-- focus on resolving issues at the local level that central gov cannot

-- ex: mayors, municipal authorities

c. regulatory agencies

-- oversee markets and ensure compliance with market regulation

-- ex: food standard agencies, exchange commission, data protection agencies, consumer welfare supervisor

d. private organizations

-- private orgs can qualify as public authorities when there is a statute to this fact

-- if no statute, then must fulfill the following criteria:

---i. public task/public service

---ii. public funding (>50%)

---iii. public supervision

What is a private regulator and what are the different types?

Private regulators that don't qualify as public authorities:

a. authority based on a statute

b. authority based on contractual mandates

-- collective (self-regulatory schemes which may govern public and private bodies in their operations) and individuated (provide various forms of professional services to public sector bodies like insurance companies and certification bodies)

-- private regulators carrying out contracted audits or inspections are subject to direct oversight by public bodies and more embedded in public regimes

-- ex: RSPCA, service providers like certification of compliance with standards + Grenfell Tower Fire

c. no authority but may have regulatory impact

-- impact like construction standards or public interest litigation (financial institutions, interest groups, investigative journalism)

-- this can be done through litigation (wealth), dissemination of information and deployment of organizational capacities (direct action or boycotts)

--- ex: Milieudefensie v Shell = private orgs without public authority (like environmental group) can impact regulation and pursue public interests

Why is it important to distinguish between public and private authorities?

It is important so one can outline the relevant fundamental rights that can be invoked against the authority (like right to due process)

-- public authorities also generally bound by the principles of good administration (duty to give reasons)

-- this distinction also determines judicial review, such as whether a case would be brought before an administrative court or civil one

What are the different regulatory forms?

a. self-regulation

→ agreement between the parties 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 members

-- form of soft law where companies agree to abide by the law but create their own standards and mechanisms to regulate themselves (like HR)

- strengths: high technical/expert knowledge, emphasis on consent, costs are internalized, no external regulator

- weaknesses: may not always serve public interest, lack of democratic integrity/legitimacy, no separation of powers

b. co-regulation

→ government 'delegates' the task of regulating a particular sector to a self-regulatory industry body or professional association but retains a residual oversight role (form of enforced self-regulation)

-- ex: banking association, AFM, consumer credit

- strengths: combines strengths of self and public regulation with a middle ground

- weaknesses: gov involvement may not always be enough to ensure public interest is served

c. public regulation

→ set of rules adopted by the gov to control the operation of markets and accompanied by mechanisms for monitoring and enforcement, usually by a specialist public regulatory agency

--- hard law where gov sets up a regulatory regime to make, enforce and oversee the law

- strengths: gov has more capacity to exert control and ensure achievement of public goals

- weaknesses: red tape (excessive bureaucracy), lack of technical/expert knowledge, high administrative costs of the regime to be borne by taxpayers

What is global administrative law? What is an example of Global Administrative law?

Administrative law is shifting from a centralized, state-driven model to a more decentralized and network-based approach due to privatization, globalization, and local governance

--- authority is now shared across public and private actors, with the state acting more as a facilitator and regulator in collaborative, open, and interconnected decision-making processes

-- regulatory standards are also being increasingly produced by transnational networks of intergovernmental institutions as well as by non-governmental institutions

--- soft law (like non-binding standards_ leading to hard law (standards implemented into directives, national measures, etc)

global admin law → a recent phenomenon that aims for more of a intra-state structure consisting of constitutional/private law elements with soft and hard rules, and national/international and public/private actors and their collective pursuit of public goals

***this is different from comparative administrative law (compares different national administrative law systems) because global administrative focuses less on comparison, and more on the interaction of these different levels

ex: Sports Law + Olympics

-- sports law is an institutional network that operates on both international and national level and involves both public and private actors and includesL

--- a private act (Olympic Charter) - governs organizations, actions, movement that states must comply with

--- production of norms (like anti-doping outlined in WADC and WADA)

--- quasi-judicial bodies (Court of Arbitration for Sport) - ensures uniform application of sports law

- these rules, institutions and authorities essentially amount to an autonomous legal corpus

What are the different kinds of regulatory techniques?

a. 'Command and Control' Regulation

→ specific, prescriptive and detailed, legal rules that leave little or no room for varying interpretation

→ strict admin or criminal sanctions overseen by a public authority

Strength: legal certainty

Weaknesses: excessively prescriptive and detailed that can be quickly outdated

-ex: speed limits in NL to reduce air pollution and protect nature reserves

b. New Governance:

i. 'principle-based' regulation

→ broad, general and purposive rules that may or may not be elaborated in further rules or guidance (more like self-regulation)

- principle forms 'backstop' to more detailed rules with general purpose to act as a guide to interpretation of rules

- public regulators focus on ensuring that regulatees attain the purposes or outcomes of the regulation rather than technical compliance with detailed rules

-ex: duty of care in relation to waste, general duty of care where investment firms must act honestly, fairly and professionally

ii. meta-regulation

→ 'management-based' regulation which relies on internal management of firms to achieve the public goals set by public regulator

-co-regulation as businesses create a system to comply with regulatory goals and must be approved by regulators

iii. enrollment of gatekeepers

→ public regulators involve others (commonly private actors) as gatekeepers to control whether regulatees comply with regulatory requirements

-usually in digital spaces to regulate entities with significant influence like the banning of Trump

iv. risk-based regulation

→ public regulators systematically identify different risks to objectives and focus resources and regulatory effort in addressing most critical risks

-ex: MS action in case of a serious risk to health and safety of its citizens (covid lockdown/quarantine)

What are examples of goals or interests?

- consumer/client protection

- prohibiting unfair commercial practices to ensure proper functioning of the internal market

What is European Regulatory Private Law and Public Law?

European Regulatory Private Law

→ body of EU secondary law that shapes relationships between private parties regardless of how it's implemented in member states

-- uses private law to regulate markets, pursue public goals and promote EU integration by harmonizing national laws and supporting the internal market

Harmonization is imposed to ensure:

- a level playing field for businesses

- adequate protection for consumers

- other public goals

ex: product liability directive where producers are liable for damage caused by a defect in product (like sleeping medication that resulted in babies born with deformed limbs)

-- affects private relationships between producers and consumers

European Regulatory Public Law

→ body of EU law that governs how public authorities regulate markets and enforce rules to protect public interests

-- ex: Markets in Financial Instruments Directive II, general duty of care to act honestly, fairly and professionally

---- this duty of care existed previously in private law but now incorporated and enforceable through public administrative law means

What is European Supervision Private Law?

→ body of EU regulatory conduct of business rules, that firms must follow when dealing with (potential) clients, forming part of a broader system of public market supervision and is subject to public enforcement

-- EU law acts as supervisory body through local admin agencies to protect consumers

There are some characteristics that distinguish it from private and public law:

a. regulatory nature (concerns pursuit of goals)

b. ex ante standard-setting by public authorities (provisionary standard setting before problem has occurred)

c. development outside the traditional private law system

d. monitoring/enforcement by public authorities through administrative law means (regulatory private law doesn't use local administrative bodies)

Private enforcement does not suffice to ensure compliance with EU legislation affecting private relationships, so MS must appoint a European supervisory authority. This is then transposed into national public law to ensure public enforcement by public administrative means

Why is European Regulatory Supervision Private Law important?

- they both represent hybrid models by integrating public and private law mechanisms together and combining these realms of law to create a regulatory framework

- they also both address private law matters and involve public authorities for creation, oversight and enforcement of legal standards

What is the role of public and private law in the EU? Is there a distinction made in EU law?

There is no distinction made in EU law between public and private law as both are used as regulatory tools and has led to legal hybrids

--- however, while this distinction is not recognized, this doesn't mean the EU does not implicitly follow it on occasion

ex: Payment Services Directive (PSD) and Market in Financial Instruments Directive (MiFID)

-- both have similar objectives: user protection (protect consumers for unauthorized payments) and investor protection (protect investors from fraud)

-- both oblige MS to establish public authorities entrusted with ensuring compliance

-- also require both investment service providers and payment providers to be certified (both have this public law component)

But also very different in regards to the private law component:

-- PSD → concerned with balance of interest, contains detailed liability rules (to improve consumer position), harmonizes private law

-- MiFID → focuses on harmonization of private enforcement/admin sanctions but not private law, no clear individual investor rights or duty of care, no private law remedies or civil liability

But this divide is still relevant as it is still subtly there, just not outwardly recognized or acknowledged in EU public law.

What are the different models that outline the relationship between market regulation and national private law?

a. separation model → EU regulatory private law rules form part of national public law and exist separately from national private law rules and EU order

b. substitution model → EU regulatory private law duties become part of national private law and substitute pre-existing private law duties (like duty to inform)

-- MS may not impose additional stricter standards than the EU, particularly in the case of maximum harmonization at EU level

c. complementary model → EU regulatory private law rules form part of national public law, but also influence private law rules

-- latter may impose additional structure standards than the former, regardless of the harmonization degree (maximum or minimum) at EU level

What should I know about Business-to-Consumer relations?

consumer: any natural person who is acting for purposes which are outside his trade, business or profession

business: any natural or legal person who is acting for purposes relating to his trade, business or profession

-- producers/manufacturers have an extra-contractual relationship with a consumer while distributors/sellers have a pre-contractual relationship with a consumer

these relationships need to be regulated because they can result in information asymmetries or imbalance of bargaining power between businesses and consumers

-- also to fulfill regulatory goals like consumer protection and european market integration

What are some EU regulatory tools for consumer transactions?

a. product safety standards

-- only safe products (under normal use) can be placed on the market

-- applies on an ex ante basis before product enters the market

-- general standards are a role of co-regulation where private orgs set harmonized rules within public regulatory framework

b. product liability

-- strict liability of producers for damage caused by defective goods (does not provide safety person is entitled to under EU/national law)

-- aims at both compensation (ex post) and deterrence (ex ante)

c. prohibition of unfair commercial practices

- unfair commercial practices are those which:

--a. are contrary to the requirements of professional diligence

--b. distort or are likely to materially distort the economic behavior of the average consumer

- level 1 (general clause on misleading practices) → level 2 (specific aggressive practices) → level 3 (blacklist of commercial practices)

d. info requirements

-- trader must provide consumer with vital info before bound to a contract (can also lead to info overload or lack clear remedies)

e. right of withdrawal

-- like art 9(1) Consumer Rights Directive (consumer has 14 days to withdraw from contract)

f. contract terms control

-- unfair contract terms are not binding on the consumer (like if not transparent or cause significant imbalance in rights and obligations)

g. remedies for non-conformity of goods

- in case of non-conformity, consumer can first ask for repair or replacement

-- the choice lies with consumer but the seller may refuse either if it would be impossible, disproportionate or cause unreasonable costs

-- if there is no room for repair or replacement, consumer is entitled to price reduction or contract termination

What was the global financial crisis and why is it important?

This crisis started in the US due to the collapse of the mortgage market

-- disaster for both homeowners and banks (people couldn't pay mortgages and prices dropped dramatically which led to the bankruptcy of many banks)

-- mortgage contracts lie at the roots of this global financial crisis

Thus, financial services need to be regulated to avoid global crises like when mortgages or credits are given to credit "unworthy" individuals

-- led to stricter capital requirements for banks like minimum capital to act as a buffer to financial shocks

-- crisis also lead to product development being regulated more, especially for financial products like hurtful payday loans or crowdfunding

Financial institutions need to be regulated as financial products are more difficult for consumer to grasp and there is less human interaction and communication

-- there is also a risk of negative third party effects of individual transactions like how people took mortgages out they couldn't pay which led to the crisis and collapse

Also led to third-party commission ban because investment advisers were recommending products to consumers in investment funds in which they were getting commission (conflict of interest)

-- exposed principal-agent problem

What are the characteristics of financial markets?

- complexity

- uncertainty (hard to predict how markets will respond to certain events or develop)

- fragmentation

- ungovernability

- dynamism (very dynamic)

What are the main building blocks of financial regulation?

a. prudential regulation

- concerned with the safety and soundness of individual financial institutions and with systemic risks to the financial system as a whole

- regulatory tools:

--i. requirements on authorization

--- firms require prior authorization

in order to provide financial services

--- prohibition to offer services without license is a form of command-and-control

--ii. bank capital requirements

--- regulatory standards for banks that determine how much liquid capital (easily sold assets) they must keep in hand in relation to their overall holdings in case of market failure

--iii. capital and management bodies

--- appointment of management bodies has to be approved by regulatory agencies

---fit and proper test for board members: experience, reputation, conflicts of interest/independence of mind, time commitment and collective suitability

b. conduct of business regulation

- concerned with the orderly functioning of financial markets and consumer/client protection

-- increasingly covers not only product distribution but also product development

- regulatory tools:

--i. general → prohibition of unfair commercial practices, contract terms control

--ii. specific → information requirements for lenders, lender's duty to assess the consumer's creditworthiness, consumer's right of withdrawal (soft paternalism)

What are the main types of investment services?

a. execution-only → broker has limited power, only able to execute the customer's order directly and cannot manage portfolio or offer any advice

b. investment advice → broker will use execution-only services but also offers advice in the investment market and what the customer should invest in

c. portfolio management → broker assesses the risks and values of the customer in the market and looks into incentives to guide the investments accordingly

-- portfolio manager helps improve financial portfolio/profits by managing funds

What are the main building blocks of conduct of business regulation?

a. product disclosure

- more soft paternalism

--i. info requirements

--- form, content + provision

b. distribution regulation

--i. general duty of loyalty → principle-based obligations for investment firms to act honestly, fairly, professionally in best interests of clients

--ii. info requirements → form, content + provision (info should be clear/fair)

--iii. know your customer rule → when providing investment advice or portfolio management, the firm should obtain the necessary info regarding client's knowledge, experience, financial situation, objectives

--iv. third-party commission ban → investment firm may not retain fees, commissions or benefits from third party

**difficult for crypto-currency as it can be exchanged so easily that there is little space for loyalty and professionalism

c. product regulation

- more hard paternalism

--i. ex ante product authorization

--ii. product governance → process of approval and oversight of financial instruments before marketed and distributed to clients

--iii. ex post product intervention

--- total, temporary or permanent ban on the marketing of certain products to retails investors

What are some of the limits of regulatory standards?

→ problem of inclusiveness

-- standards are generalizations and therefore, all standards run the risk of over- or under-inclusiveness

→ problem of indeterminacy

-- all standards are inherently indeterminate (particularly true for open-ended standards)

→ problem of interpretation

-- standards need a sympathetic audience (those who enforce regulatory rules should understand the goals/objectives behind those rules) and informed (understand context)

What are the different enforcement modes?

a. public enforcement → supervision and enforcement of regulatory standards by public authorities through public law means

-- works on an ex ante basis (prior to market failure) and serves a goal of deterrence

b. private enforcement → enforcement of regulatory standards by private parties through private law means (like civil liability)

-- functions ex post (often activated after individuals or groups have suffered harm from a regulatory breach)

-- seeks to provide compensation but may also have a deterrent effect due to fear of civil liability which may cause firms to adjust behavior

c. hybrid enforcement → involvement of agencies in the provision of private redress

-- minimum powers

- two models:

--i. complementarity model → agencies may facilitate private redress indirectly or bring collective action for damages before civil courts

--- institutional separation between agencies and civil courts (agencies concerned with deterrence while courts with comp)

--ii. integration model → agencies may secure private redress directly

--- compensation becomes integrated into administrative enforcement which thus serves both deterrence and compensation (no line of separation)

What are the occasions for regulatory conversations?

1. regulatory agencies may provide guidance and waivers as to the application of rules in primary legislation

-- ex: agencies may come up with guidelines to explain general duty of loyalty to firms and what best conduct entails (like ESMA)

2. supervised rule formation for a particular firm

3. monitoring and enforcement (supervisory form of conversation)

-- particularly of open-ended standards - not enforced immediately through administrative fines but can give instructions to firms on how to comply

What are the two 'ideal' enforcement styles?

1. penal style → enforcement is reflective: a matter of determining what harm was done, detecting the law-breaker and fixing the appropriate sanction

-- accusatory style and adversarial (law as a threat)

-- more punishment

2. conciliatory style → enforcement is prospective: a matter of responding to a problem and negotiating future conformity to standards

-- reliance on bargaining with regulated entities to attain compliance (more dialogue/opportunity for cooperation and more forward-looking)

-- more persuasion

What is an enforcement pyramid?

The main idea is that regulatory agencies should start with more conciliatory tools (like a warning of non-compliance) and if they don't achieve desired outcome, then the agencies can escalate and impose more penal sanctions on firms

-- exemplifies when a regulatory agency should punish the infringer and when it should try to persuade him to comply

-- focused on principle of effectiveness

However, there are some concerns regarding the pyramid:

-- in being exclusively concerned with the effectiveness of enforcement in securing public goals, the pyramid is not entirely in line with constitutional values like procedural fairness or proportionality between severity of punishment/seriousness of the offense which act as constraints on law as a threat

*rule of thumb: if you impose a fine to a legal person, its consider less penalizing than towards a natural person

-- public statement is worse bc it may reach a wider audience and may hurt the company rather than just a private, direct warning

What are the principles of EU law?

a. principle of effectiveness

→ national law should not make it practically impossible or excessively difficult to exercise rights conferred by EU law (tool must be able to perform its function)

b. principle of proportionality

→ three step test:

--1. Is it suitable for the pursued objective?

--2. Is it necessary (are there less intrusive means to attain an equivalent result)?

--3. Is it proportionate? (stricto jure)

c. principle of dissuasiveness

→ a sanction should discourage infringements and neutralize the effects of misbehavior (deterrent effect) and encourages compliance

*these principles can be found in EY secondary law, CJEU case law and Article 13(1) Unfair Commercial Practices

three respects of these principles:

-i. content of a single remedy or sanction (application of a remedy or sanction should comply with the three principles)

-ii. combination between different remedies or sanctions should also be in conformity with the principles within a particular enforcement mode (public or private)

-iii. the three principles govern the coordination between different enforcement modes (but is underdeveloped)

What are the options to ensure administrative enforcement of private law-oriented EU measures?

Option 1: to implement such directive entirely in national public law

Option 2: to implement (some) substantive rules in national private law and to include a reference to them in public law

Option 3: to implement such directives in a special legislative act combining elements of public and private laws

What are the types of private enforcement actions?

a. individual action

→ civil courts and alternative dispute resolution bodies (ensure a quick and easier access to justice for aggrieved consumers)

-- fostering ADR + special venues for cross-border disputes

-- for civil courts, claim must be below €25,000

-- alternative bodies = ombudsman, admin tribunals, mediation, arbitration

b. collective action

→ qualified entities (consumer orgs) may bring a representative (qualified entity) action before a civil court or an administrative authority to seek injunctive or redress measures

-- injunctive measures → provisional or definitive measures to cease or prohibit a certain practice (injunctions)

-- redress measures = compensation, repair or replacement (of a defective good), price reduction, contract termination, reimbursement of the price paid

-- citizens can also establish a violation and ask for an admin decision

- national courts have an ex officio obligation to apply consumer law (must enforce consumer protection rules automatically, even if consumer does not explicitly invoke them)

What are the three models of financial supervision?

a. twin-peak model → entails that prudential supervision and conduct of business supervision are in the hands of two separate authorities (NL and UK)

-- advantages: each authority can focus on different areas (more active in a particular area without behind hindered by other tasks)

b. integrated model → one authority is in charge of both prudential and conduct of business supervision

-- disadvantage: that authority will prioritize prudential concerns and financial stability over consumer concerns and protection

c. sector-based → different authorities in charge of different sectors of financial services combining prudential and conduct of business supervision

How is the coordination between public snd private enforcement?

At the moment, it is quite underdeveloped as civil courts are generally not bound by administrative decisions, with a notable exception of competition law

-- Antitrust Damages Directives (in competition law) obliges courts to follow decisions of competition authorities establishing an infringement

-- emerging that the final decision of an administrative agency or court can be used as evidence in civil proceedings

-- also in France (AMF), an admin authority can transmit the documents related to its administrative investigation to a civil court at the court's request (consumer can use to prove a violation of financial regulation by a firm)

What is administrative discretion?

Administrative discretion are the powers and abilities of administrative authorities to apply rules with a degree of latitude (public regulator obliged to apply rules provided by legislator and leeway is this discretion)

-- bodies use discretion to invoke decisions through rule application

What are some principles of good administration?

no uniform set of principles but some generally agreed upon ones are:

- principle of proportionality

- equal treatment (authorities don't make decisions based on irrelevant matters)

- efficiency (gov needs to be efficient in using resources)

- effectiveness

- transparency (to what extent do gov docs need to be published, actively or passively, request for information)

- diligence (reasonable time limit)

- absence of abuse of power

These principles can sometimes become rights if incorporated into law

-- Article 41 CFR codifies most of these principles above

-- principles can function as the legal basis to claim your rights and standards/rights can apply simultaneously at times

How does one determine whether there is good administration or not?

Three Dimensions:

1. efficiency and quality dimensions

→ Is the public interest pursued in a proper and efficient manner?

2. procedural dimension

→ What procedural guarantees are in place for citizens?

3. public interest dimension

→ What public interest is involved with the administrative action?

What are the standards of good administration?

1. getting it right

-- admin authority must act in accordance with the law and with regard for the rights of those concerned

-- provide effective services, reasonable decisions, competent staff, good practice

2. being customer focused

-- easy access to services, inform citizens/public bodies, keep to commitments, respond to needs flexibly

3. being open and accountable

-- open/clear about policies, info and procedures accurately, keeps proper records

4. acting fairly and proportionately

-- treat people impartially, respectfully, no unlawful discrimination, deal with people and issues objectively

5. putting things right

-- admin authority should apply administrative discretion in the best possible way but should be able to take accountability when wrong

-- acknowledge mistakes, apologize, put mistakes right quickly and effectively, provide clear info on how to appeal or complain, effective complaints procedure with appropriate remedies

What is an ombudsperson?

A government official who investigates complaints (by private citizens) against public entities to help resolve the conflicts

-- task is to assess if principles of good admin are being complied with

requirements: maintains independence, neutrality and respectability, high standard of democracy (individualized decision-making), media support and recognition of the Ombudsman Institution

-- should also be legally established, functionally autonomous, external to administration, independent from legislature and executive, specialists and experts, non-partisan, normatively universalistic, client-centered (but also can't be anti-administration), visible and easily accessible

How does one determine the legal standing of an individual in the case of civil procedure?

1. recipient of the individual decision (who is it addressed to)

2. if not, legal standing criteria for third party interests:

--i. individual interest (distinguishable from mass)

--ii. personal interest (act on your behalf, not someone else's)

--iii. objective interest (not merely emotional)

--iv. current interest (order of appeal is in effect, not future interests)

--v. direct interest (no involvement of intermediary, decision directly affects you)