Transatlantic Perspective on Judicial Deference in Administrative Law

Posted by Social Science Research Network

Transatlantic Perspective on Judicial Deference in Administrative Law Maciej Bernatt (University of Warsaw)

Abstract: The U.S. concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in the light of agencies’ superior expertise and separation of powers arguments. It may serve as an interesting point of reference for the European discussion about adequate institutional balance between administration and courts.

The paper analyzes whether there are grounds for the validity of the concept of judicial deference in Continental Europe and in what areas (law, facts or both). As a starting point it is observed that it remains generally accepted in Europe that it is a role of courts (and not administrative agencies) to interpret the law. Against this background, standards stemming from Article 6 of the European Convention on Human Rights (the ECHR) are analyzed in order to answer the question whether deferential standard of review is permissible under the ECHR principle of full judicial review. The analysis of the jurisprudence of the European Court of Human Rights (the ECtHR) leads to the conclusion that there is a space for U.S.-like judicial deference under European fundamental rights framework when it comes to the question of facts. On the other hand the ECtHR jurisprudence does not offer much guidance as to whether any deference can be accorded to administration’s statutory interpretation.

Further study on European Union courts’ review of the decisions of the European Commission in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, the EU Courts declare deference to the Commission’s complex economic assessment and defer to the Commission’s interpretation of its own soft law. When it comes to facts, standard of review seems to correspond with the U.S. substantial evidence test. On the other hand, legal questions concerning the Commission’s own soft law are reviewed in a way similar to the Skidmore standard. Further similarities between Europe and the U.S. are observed in the U.S. courts of appeal practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by the U.S. courts remains close to the EU Courts’ review of the EU Commission’s decisions.

The paper shows that differences between the U.S. and Europe — especially if one takes into account U.S. courts often non-application of Chevron — are not so significant as one would intuitively think. In the conclusion, the paper proposes three variables that may be identified in both the U.S. and European approaches to decide whether judicial deference to administrative agency decisions should be accorded or not.