II. A horizontal composite procedure for export authorisation

Virtually all fields of EU law have witnessed the increasing use of regulatory structures that have come to be known as “composite procedures”. These can be defined as decision-making processes involving multiple jurisdictions participating at different moments and with different intensities.^{Footnote 11} Several of them fall under the category of so-called “vertical” composite procedures, in the sense that the preparatory measures and the final decision in the decision-making process are taken by both national and European authorities. In turn, in “horizontal” composite procedures both the preparatory measures and the final decision are taken by national authorities,Footnote ¹² and the European authorities play no formal part in the decision-making process leading to the final decision. Implementing Regulation 2020/402 designs a composite authorisation procedure that belongs to this second category.

The administrative procedure formally begins with an application made by the exporter before the national authorities of the Member State where the exporter is established.Footnote ¹³ If the personal protective equipment designated in the application is located in the territory of the Member State of the applicant, the procedure remains purely internal. In turn, if the equipment is located in one or more Member States other than the one where the export authorisation has been requested, the procedure will encompass a consultation with the administrative authorities of these other Member States.Footnote ¹⁴ It is in these cases that the administrative decision-making process turns into a horizontal composite procedure. This is reflected in the following three features.

First of all, the fact that the products are located in other Member States is important in the very first stage of the procedure, since it is the duty of the party to indicate this circumstance in the application.Footnote ¹⁵ Next, the competent authorities of the Member State to which the application for export authorisation has been made shall immediately consult the competent authorities of the other Member State or States in question. They must also provide them with all relevant information regarding the application.Footnote ¹⁶ Finally, the Member State(s) consulted shall make known within 10 working days any objections they may have to the granting of such an authorisation. Crucially, the “objections” expressed by the consulted authorities “shall bind the Member State in which the application has been made”.Footnote ¹⁷ This implies that consulted authorities enjoy a power to veto the granting of the license, which can be expressed through a preparatory opinion.

III. In search of effective judicial protection

Composite procedures have not only attracted considerable scholarly attention in recent years,^{Footnote 18} but also come increasingly often to the attention of the Court of Justice with the aim of clarifying, in particular, the judicial implications of this system of administrative governance.^{Footnote 19} Indeed, whereas the system of decision-making for the implementation of EU law is increasingly composite in nature, the system of judicial protection has remained in principle anchored to a model based on domestic jurisdiction, whereby the court competent to review a certain administrative act or action is the court belonging to the legal system in which the act or action is imputable, regardless of whether it is part of a larger multi-jurisdictional decision-making process.Footnote ²⁰ The mismatch between the high integration of decision-making processes and the strict separation of control mechanisms may lead to various accountability gaps. From a judicial review perspective, these gaps have a specific constitutional dimension, since they reduce the effectiveness of judicial protection.Footnote ²¹

In the context of the administrative procedure regulated by Implementing Regulation 2020/402, these gaps arise as a consequence of the fact that the binding opinion and the final decision are issued by authorities belonging to different Member States. This could lead to a lack of judicial protection if the application is rejected – or granted under conditions – by the competent authorities following an objection expressed by the consulted authorities.

On the one hand, private parties adversely affected by the final administrative decision should challenge it before the domestic courts of the Member State where the applicant is established. However, if the binding report issued by the consulted authorities of the other Member States vetoed the export, the competent authorities would have had no other option than abiding by it. At the same time, under national law, domestic courts reviewing the adverse final decision would have, in principle, no jurisdiction to review the preparatory measure taken by other national authorities.

On the other hand, trying to access the courts of the Member State where the products are located may provide no remedy, since the opposition to the export is expressed through a preparatory act that is part of a procedure that will be concluded by another administrative authority. Therefore, the preparatory measure is not intended to produce direct effects vis-à-vis the applicant. Indeed, in both EU administrative law and in the domestic administrative legal orders, preparatory measures – even if they are binding – are only rarely – if ever – open to direct judicial review.Footnote ²² Therefore, a direct challenge by the applicant to the opinion issued by the consulted authorities before their national courts will hardly be admitted under national law.

The Court of Justice has not dealt specifically with gaps of judicial review in this kind of horizontal composite procedures. Nevertheless, it has developed two doctrines that might be explored in order to tailor a specific solution for them. Following the first path would lead to entrusting national courts of the Member State whose administrative authorities have taken the preparatory act with the responsibility of filling the gap. The second path would in turn confer this responsibility upon the courts of the Member State where the authorisation has been requested.

In Borelli, on the one hand, the Court dealt with a composite vertical procedure, the final decision of which was in the hands of the Commission, but where the national authority issued a binding preparatory measure. The national act could not be disregarded by the European authorityFootnote ²³ and was not amenable to domestic judicial review under Italian procedural law. The Court then established three rules: first, that it had no jurisdiction to rule on the lawfulness of a measure adopted by a national authority;Footnote ²⁴ second, that any flaws of the national preparatory measure could not affect the validity of the decision taken by the European authority;Footnote ²⁵ and third – and crucially for our purposes – that national courts “must rule on the lawfulness of the national preparatory measure at issue on the same terms on which they review any definitive measure adopted by the same national authority which is capable of adversely affecting third parties, regardless of what domestic procedural law might establish in this respect”.Footnote ²⁶ This last rule was grounded on “the requirement of judicial control of any decision of a national authority reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms”.Footnote ²⁷

The regulatory setup created by Implementing Regulation 2020/402 is different from the one at stake in Borelli in that the structure of the procedure is not vertical, but horizontal. Nevertheless, the two procedures display at least two similarities: first, as in Borelli, the final decision-maker is bound by the result of the preparatory measure. Second, in both cases, restrictions imposed by internal procedural legislation regarding the reviewability of administrative decisions impede domestic judicial control of the national preparatory measure.

These features might allow an analogical application of the Borelli ruling to the binding opinion provided for by Implementing Regulation 2020/402. Domestic courts of the Member State where the goods are located should, on this basis, review the legality of the administrative opinion expressing objections or imposing conditions as if it was a final administrative decision capable of adversely affecting third parties. Therefore, they should “regard an action brought for that purpose as admissible even if the domestic rules of procedure do not provide for this in such a case”.Footnote ²⁸

On the other hand, the Court dealt in Berlioz with a horizontal cooperation arrangement between the tax administrations of two Member States.Footnote ²⁹ French authorities had sent the Luxembourg tax administration a request for information concerning Berlioz pursuant, in particular, to Directive 2011/16.^{Footnote 30} Following that request, the Luxembourg authority took a decision requiring Berlioz to provide certain information. Since Berlioz did not fully comply with the request, the Luxembourg tax administration imposed an administrative fine on account of its refusal to provide that information. According to national law, Berlioz could challenge the administrative fine (which was a measure taken by the Luxembourg authorities), but not the request for exchange of information, nor the decision requiring the requested information to be provided (which were measures issued by a foreign administrative authority). The Court of Justice established that the right to effective judicial protection enshrined in Article 47 of the Charter, and specifically the right to access to an independent and impartial tribunal, requires that “a decision of an administrative authority … must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues”.Footnote ³¹ Consequently, Luxemburg courts “hearing an action against the pecuniary administrative penalty imposed on [Berlioz] for failure to comply with an information order must be able to examine the legality” of the latter.Footnote ³² Moreover, the right to effective judicial protection also demands that, when reviewing the legality of the information order, the Court “carry out the review of the legality of the request for information”,Footnote ³³ with the limitations that also apply to the requested administrative authority.Footnote ³⁴

The regulatory arrangement designed by Implementing Regulation 2020/402 differs from the Berlioz case, since in the latter the Court was not dealing with a decision-making process, but with an enforcement measure as a form of administrative cooperation. However, there are also certain similarities that relate to relevant features in terms of whether and how judicial gaps must be filled up. In both cases, under domestic law, national courts have, in principle, no jurisdiction to review the legality of foreign administrative measures. Moreover, challenging these measures before the courts of the Member State whose administrative authorities issued them might well be precluded under national law because of their preparatory nature. In both cases, the setup leads to a severe reduction of the effectiveness of judicial protection, since the legality of the relevant preparatory measure might not be reviewed by any national jurisdiction. As the Court made clear in Berlioz, these situations are prohibited by Article 47 of the Charter.

It would therefore seem plausible to analogically apply the Berlioz solution to the judicial review of other horizontal composite procedures, such as the one established by Implementing Regulation 2020/402. Accordingly, national courts of the Member State whose authorities have rejected – or conditioned – the authorisation must be able to “carry out the review of the legality” of the preparatory act in which foreign authorities expressed their objections to authorise the export – or required the imposition of certain conditions – despite it being issued by the administrative authorities of another Member State.