The ever expanding scope of EU law means that it applies in many fields which have traditionally been part of domestic administrative law. One needs only to think of immigration and asylum law and how often EU law now arises in this area. Similarly, the law on extradition, which has always been a discrete area of public law, combining elements of criminal law, constitutional law and international law, is now dominated by the European Arrest Warrant and, therefore, EU law.
When EU law and domestic administrative law overlap, what are the grounds for judicial review which are available to challenge a decision? In particular, can national decisions be challenged on the grounds for judicial review recognised by domestic law or only on grounds available under EU law?
In this context, it is worth noting the case involving Mr. Julian Assange’s attempt to resist being sent back to Sweden from the UK to face sexual assault charges: see Assange v. Swedish Prosecution Authority  EWHC 2849 (Admin). This case is currently before the UK Supreme Court but even the Administrative Court’s decision highlights some difficulties about judicial review before domestic courts whenever EU law is involved.
EU Law and Domestic Public Law
The scope of judicial review relying on national law when the decision being challenged is ultimately governed by EU law is not a new problem. One aspect of the famous Internationale Handelsgesellschaft litigation in the 1970s concerned the insistence of the German Constitutional Court in Karlsruhe that the primacy of EU law in Germany was subject to EU law rules being compatible with the German Basic Law. The European Court of Justice (“ECJ”) did not agree, concluding that “the effects” of EU law measures could not be challenged by reference to national constitutional law: see Case 11/70  ECR 1125.
While the recognition by the ECJ that fundamental rights are guaranteed in EU law as general principles of law, and latterly by the EU Charter of Fundamental Rights, has resolved this particular issue, more recent decisions of the Karlsruhe court have continued to insist that EU law may only have supremacy over German law in so far as it is compatible with the fundamental norms of the German constitution (such as federalism): see, for example, the 1993 Brunner judgment.
In the UK, proportionality was first recognised as a ground of judicial review in cases governed by EU law. It is still not completely clear that proportionality may be relied on other than in cases governed by EU law and the Human Rights Act 1998. Be that as it may, there is English authority for the view that the general principles of EU law can only be relied on as grounds for judicial review in cases which fall within the scope of EU law: see R v. Ministry of Agriculture, Fisheries and Food, ex parte First City Trading  1 CMLR 250. . Accordingly, it is clear that EU law grounds have no relevance in purely domestic cases.
But is the converse true – that purely domestic grounds for judicial review have no relevance in cases where EU law governs? On the one hand, if national decisions pursuant to EU measures may be challenged on purely domestic grounds, there is a risk that the 27 different systems of public law in the EU could reach different conclusions on the legality of broadly similar decisions. On the other hand, domestic public law often protects fundamental rights which are not understood in the same way in the 27 different systems of public law – such as the right to a “fair hearing”. Since EU law does not aspire to harmonise all aspects of public law in the Member States, it would be surprising if the substantive rules of national administrative law have no application at all in EU cases before national courts.
Domestic Administrative Law and EU Law Grounds
Some of these issues are presented most sensitively in two types of cases: first, where the European Arrest Warrant is being relied on before national courts; and secondly, when asylum seekers challenge decisions of national authorities ordering their return to another EU Member State, so that their asylum claim can be determined there under the Dublin II Regulation.
The European Arrest Warrant is governed by EU Framework Decision 2002/584/JHA. It is transposed into UK law by part 1 of the Extradition Act 2003. In summary, where a judicial authority in one Member State issues an Arrest Warrant against a particular person who is accused of committing a crime in that state, there is a duty on the authorities in another Member State where that person now is to arrest him and return him to the requesting Member State for trial. Given the different systems of criminal procedure in the 27 Member States, and the different models of due process for criminal suspects, it is not surprising that the mandatory obligation to return an accused person for trial under an unfamiliar system has given rise to many challenges to Arrest Warrants.
Significantly, recital 12 to the Framework Decision permits Member States to apply their constitutional rules relating to “due process”. In this way, the EU legislature has both acknowledged the different criminal procedure traditions across the EU and accepted the possibility that Arrest Warrants may be challenged on at least some grounds of national law. It may be inferred that, were it not for recital 12, the default position would have been that an Arrest Warrant could only be challenged on grounds available under EU law, such as fundamental rights or proportionality. If so, then where an Arrest Warrant is not challenged on “due process” grounds, it can only be challenged on grounds available under EU law.
This approach seems to be confirmed by the Assange case. On the issue of the legality of the Arrest Warrant in that case, the Administrative Court was limited to reviewing its contents and implications for the Claimant, on the ground of proportionality. No question was raised that the Warrant was challengeable on other grounds available in domestic law, such as Wednesbury unreasonableness. On the facts of the case, the Court decided that the use of the Arrest Warrant in Mr. Assange’s case complied with the EU principle of proportionality (see paragraphs 155-158 of the Judgment).
As regards Dublin Regulation cases, the same approach must apply. Decisions of national immigration authorities under the Dublin Regulation fall squarely within the scope of EU law and can therefore only be challenged relying on grounds of judicial review available in EU law, such as human rights and proportionality. The recent decision of the ECJ in NS v. Secretary of State for the Home Department, Case C-411/10, broadly confirms this position.
In practice, many of the grounds for judicial review in domestic administrative law are similar to and overlap with those available under EU Law. But there are some important differences, not only in the terminology but also in the scope and intensity of judicial review.
EU law increasingly influences the development of national administrative law, including in the UK through the emergence of proportionality as a ground of judicial review available in English law. While EU law will not supplant domestic administrative law, it is likely that there will be more and more cases in the domestic courts which are reviewing national decisions, not on the familiar grounds of English administrative law but on the grounds for judicial review available in EU law.