Spring Semester (March 1 - May 31, 2018)
Comparative Administrative Law
Prof. Giulio Napolitano
7 CFUs – ECTS
The course starts on Monday, March 5
Class hours: Mondays, Tuesdays and Wednesdays (except public and academic holidays) from 5.45 pm to 7.30 pm
The course provides an introduction to the study of comparative administrative law for both theoretical and practical purposes. On the one side, the course offers an intellectual framework to better understand the role of government and the different regulatory techniques existing in various jurisdictions, at national and supranational level. On the other side, the course prepares future lawyers and consultants to provide advice to companies and to individuals on investment, business and policy-making decisions, in relation to the different legal and administrative framework of each jurisdiction. The course is highly recommended to Erasmus and foreign students too.
The Course consists of lectures and case law discussions, meant to encourage active students’ participation. Each case will be examined in the context of its specific jurisdiction and through comparative overview. Students’ evaluation will be based on class work, short papers, oral presentations and comments, and a final paper. Academic papers, cases and materials will be made available in class and on the website.
The Course is divided into five sections:
- Introduction. Historical and contemporary perspectives.
- The role of government, public powers and human rights.
- Delegation, expertise and contracting out.
- The regulation of administrative action. Cost-benefit analysis, administrative procedures and transparency.
- Judicial review and administrative litigation.
Lecture (Section I) and cases discussion (Sections II, III, IV, V)
This course is part of the program "Studying Law at Roma Tre," thus, attendance is required. Students who want to attend this course must complete a pre-registration form to enroll. Usually the deadline for the submission in the second semester is 19 February. The mandatory English test will take place in the last week of February (this year on the 23th)
For further information click here: http://host.uniroma3.it/laboratori/piazzatelematica/STUDYINGLAW/nuovostudente.asp
- Schedule and calendar
Classes will take place in Room 6.
Monday, Tuesday and Wednesday: 17.45-19.30 from 05.03.2018 to 16.05.2018
Class attendance is very important. In case of clashes with other classes of Studying Law at Roma Tre, students are allowed to alternate their presence in the overlapping day.
The classes will be held according to the following calendar.
- The transformations of comparative administrative law (05.03.18).
Section I. The role of government, public powers and duties, and human rights
- Security protection and war on terror: the recognition and revocation of the refugee status in Germany (Federal Administrative Court of Germany, 7 July 2011, 10 C 26.10) (06.03.18)
- Migrant camps in France and public duties to provide minimum living standard (Council of State of France, order of 23 November 2015, Nos 394540, 394568, Interior Ministry and Calais Municipality vs. Médecins du Monde and Secours Catholique – Caritas France) (07.03.18)
- The U.S. health care reform: the individual mandate and the Medicaid Expansion (Supreme Court of the United States, June 28, 2012, National Federation of Independent Business v. Sebelius) - Again on the U.S. health care reform: tax credit and federally run exchange (The Supreme Court of the United States, 25 June 2015, King v. Burwell) (12.03.18)
- Right to water of the community and limits to governmental power in Botswana (Court of Appeal of the Republic of Botswana, 27 January 2011, Mosetlhanyane and others v. Attorney General of Botswana - Civil Appeal No. CACLB- 074-10) (13.03.18)
- Distribution of water and public service obligations in France (Constitutional Council of France, 29 May 2015, Société Saur Sas) (14.03.18)
- The right to a clean and healthy environment and the protection of natural resources in Uganda (High Court of Uganda, 13 July 2005, case n. 100/2004, Advocates Coalition for Development and Environment and others v Attorney General and National Environment Authority) (19.03.18)
Section II. Delegation, expertise and contracting out
- The mandate of the European Central Bank: different views from the German Federal Constitutional Court and the European Court of Justice Federal Constitutional Court of Germany (Bundesvervassungsgericht), 14 January 2014, Case no. 2 BvR 2728/13, OMT Ruling European Court of Justice, Grand Chamber, 16 June 2015, Case C-62/14, Peter Gauweiler and others vs. Deutscher Bundestag (OMT case) (20.03.18)
- A new standard for delegation of powers to EU agencies: the ESMA and the short-selling regulation (European Court of Justice, Grand Chamber, 22 January 2014, Case C270/12, United Kingdom of Great Britain and Northern Ireland (Esma- shortselling case) (21.03.18)
- Misuse of drugs regulation in Ireland: is delegation to Government’s orders constitutional? (Court of Appeal of Ireland, Bederev v. Ireland,  IECA 38, 10 March 2015) (26.03.18)
- The delegation of regulatory powers to public-private corporations in the US railroad system (Supreme Court of the United States, Department of Transportation, et al., petitioners v. Association of American Railroads, 9 March 2015, 575 U.S. (2015)) (27.03.18)
- The sub-delegation of licensing discretionary powers to the aquaculture industry in Canada Federal (Federal Court of Canada, Morton v. Canada (Fisheries and Oceans), 2015 FC 575, Ottawa, Ontario, May 6, 2015) (28.03.18)
- The privatization of prisons in Israel (Supreme Court of Israel sitting as the High Court of Justice, 19 November 2009, HCJ 2605/05, Academic Center of Law and Business and others v. Ministries of Finance and Public Security, A.L.A. Management and Operation (2005) Ltd, and Knesset). (04.04.18)
- Contracting out: the supply of meals to patients and staff in a Portuguese public hospital (European Court of Justice, Case C-574/12, Centro Hospitalar de Setubal EPE, Serviço de Utilização Comum dos Hospitais (SUCH)), 19 June 2014) (09.04.18)
Section III. Cost-benefit analysis, administrative procedures and transparency
- Taking costs (more) seriously. A fresh approach to cost-benefit analysis in public-health and environmental regulation in the US (Supreme Court of the United States, Michigan et al. v. Environmental Protection Agency et al., 576 U.S. , 2015, no. 14-46, 14-47 and 14-49) (10.04.18)
- Impact study, costs assessment and the precautionary principle: the declaration of public utility of works for creating an aerial electricity power line in France (Council of State of France (Conseil d’Etat), 22 March-12 April 2013, Nos. 342409 and others, Association Coordination Interregional Stop THT and others) (16.04.18)
- The right of participation in global administrative law procedures: the Mumbai Urban Transport Project case (World Bank Inspection Panel, Investigation Report, India: Mumbai Urban Transport Project, IBRD Loan No. 4665-IN; IDA Credit No. 3662-IN), 21 December 2005) – Citizens participation in environmental impact assessment in Chile (Supreme Court of Chile, 17 March 2017, Rol No. 55.203-2016, Mina Invierno) (17.04.18)
- Notice-and-comment in rulemaking: the problem of interpretative rules in the US Administrative Procedure Act (Supreme Court of the United States, 9 March 2015, no. 13-1041 and 13-1052, Perez v. Mortgage Bankers Association) (18.04.18)
- Due (administrative) proceedings and financial markets regulation in Italy (ECtHR 4 March 2014, application nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10, Grande Stevens and others vs. Italy) (23.04.18)
- Access to environmental information and duty to disclosure of privatized water companies in the UK (Upper Tribunal (Administrative Appeals Chamber) of the United Kingdom, Fish Legal and Emily Shirley v. Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd, Southern Western Services Ltd and the Secretary of State for the Environment, Food and Rural Affairs,  UKUT 0052 (AAC) – 16 February 2015) (24.04.18)
Section IV. Judicial review and administrative litigation
- The Council of State and the administrative loop: A Belgian tale on administrative and judicial efficiency vs. right of defense (Belgian Constitutional Court, 16 July 2015, n. 103/2015 H.B. and Others (02.05.18)
- The extension of judicial review on private bodies exercising a public function. Checking the legitimacy of the reprimand issued by Singapore Exchange Securities Trading Ltd (High Court of Singapore, 9 May 2012, SGHC 103/2012, Yeap Wai Kong v. Singapore Exchange Securities Trading Ltd.) (07.05.18)
- Arbitration in public procurement in South Africa: Towards an “administrativization” of remedies? (Supreme Court of Appeal of South Africa, Telkom v Mazanzi & Others (383/12)  ZASCA 14, 18 March 2013) (08.05.18)
- Standing of private parties against EU acts, internal review and the Aahrus Convention (Court of Justice of the European Union, 13 January, 2015, Cases C-401 to 403/12P, EU Council, Commission and Parliament vs. Verningin Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, of, (Grand Chambre), (09.05.18)
- Third party remedies against administrative contracts: lessons from France (Conseil d’Etat, 4th of April 2014, Department of Tarn et Garonne, judgment in respect of appeal No. 358994) (14.05.18)
- State liability in public procurement in Austria: from subjective to objective liability (Court of Justice of the European Union, Stadt Graz v. Strabag AG and Others, Case C-314/09, 30 September 2010) (15.05.18)
- Fixing the boundaries of agencies’ regulatory authority. The many dimensions of the ‘Chevron’ deference in the US. (Supreme Court of the United States, City of Arlington, Texas, et al. v. Federal Communications Commission et al., 20 May 2013, 569 U.S) (16.05.18)
For any further information and change, please check in advance on the Department Website!
In every meeting, it will be discussed a case. The materials will be downloaded through the Elearning platform before the beginning of the course. Each student is required to read in advance the cases and to prepare for collective discussion in class on the issues and questions raised in the casebook. Groups of students could be formed in class in order to defend the different positions of litigants. Each student has to submit at least two short papers during the semester (written essays 1.000-1.500 words, to be sent 24 hours before the class discussion of the case). The papers will provide an overview of the legal problem at stake in the case from another jurisdiction perspective.
- Final Exam (only for enrolled students)
Students have to submit a paper of 4.000 words on a topic of comparative administrative law previously agreed with the professor. Papers must be sent at least seven days before the day of the exam in order to receive suggestions and corrections. In the oral exam, students will present and discuss the paper with the professor.
- Grading components
- Active participation in class discussion 25%
- Short papers 25%
- Final exam 50%
- Course book and other suggested readings
- Suggested preliminary readings
Bignami, Francesca. "Comparative Administrative Law." The Cambridge Companion to Comparative Law (2012): 145-170.
Boughey, Janina. "Administrative Law: The Next Frontier for Comparative Law.", International and Comparative Law Quarterly 62.01 (2013): 55-95.
Napolitano, Giulio, “The Transformations of Comparative Administrative Law.” Rivista trimestrale di diritto pubblico (2017): 997-1003
- Required reading for the class discussion
Napolitano, Giulio, “Comparative Administrative Law. Cases and Problems.” (2018).
- Additional reading
Rose-Ackerman, Susan, Peter L. Lindseth, and Blake Emerson (editors), “Comparative Administrative Law”, Cheltenham, Edward Elgar, second edition, 2017.
The preliminary and the required readings will be available on the platform Elearning (see “Canali di comunicazione elettronica di Dipartimento”, chapter I, par. 7).
For further information contact firstname.lastname@example.org.
For any clarification and help, the professor’s assistants are available at the beginning and at the end of the lessons.
- Exam dates
Exams will be held in the following dates: Summer term
|6 June, 1.00 p.m.
||20 June, 1.00 p.m.
||18 July, 1.00 p.m.
|12 September, 1.00 p.m.
||26 September, 1.00 p.m.