Transatlantic Perspective on Judicial Deference in Administrative Law

Abstract

The United States (US) concept of judicial deference in administrative law limits the scope of judicial review of administrative agencies’ actions in 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 Article analyses 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 remains generally accepted in Europe that it is the 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 (ECHR) are analyzed in order to determine whether a 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 (ECtHR) leads to the conclusion that there is space for US-like judicial deference under the European fundamental rights framework when it comes to questions of fact. On the other hand, the ECtHR’s jurisprudence does not offer much guidance as to whether any deference can be accorded to administrative statutory interpretation.

Further study of the review by European Union (EU) courts of the European Commission’s decisions in the sphere of competition law shows that judicial deference is accorded in Europe in practice. Importantly, 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, the standard of review seems to correspond with the US courts’ 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 US are observed in the US Courts of Appeals’ practice of reviewing the Federal Trade Commission’s decisions in the field of antitrust. The actual intensity of review exercised by US courts remains close to the EU Courts’ review of the European Commission’s decisions.

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

Keywords: judicial review, judicial deference, adiministrative agencies, antitrust, competition law, competition proceedings, right to fair trail, Article 6 ECHR, procedural fairness, due process

JEL Classification: L40, K21, K40, K42