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See detailEU Executive Discretion and the Limits of Law
Mendes, Joana UL

Book published by Oxford University Press (in press)

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See detailFraming EU Executive Discretion in EU Law
Mendes, Joana UL

in Mendes, Joana (Ed.) EU Executive Discretion and the Limits of Law (in press)

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See detailExecutive Discretion in the EU and the Outer Boundaries of Law
Mendes, Joana UL

in Mendes, Joana (Ed.) Eu Executive Discretion and the Limits of Law (in press)

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See detailIntroduction: The Idea of Relative Authority in European and International Law
Mendes, Joana UL; Venzke, Ingo

in Mendes, Joana; Venzke, Ingo (Eds.) Allocating Authority: Who Should Do What in European and International Law? (2018)

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See detailThe EU Administration
Mendes, Joana UL

in Amtenbrink, Fabian; Curtin, Deirdre; de Witte, Bruno (Eds.) et al The Law of the European Union (2018)

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See detailAllocating Authority: Who Should Do What in European and International Law?
Mendes, Joana UL; Venzke, Ingo

Book published by Hart Publishing (2018)

The question of which European or international institution should exercise public authority is a highly contested one. This new collection offers an innovative approach to answering this vexed question ... [more ▼]

The question of which European or international institution should exercise public authority is a highly contested one. This new collection offers an innovative approach to answering this vexed question. It argues that by viewing public authority as relative, it allows for greater understanding of both its allocation and its legitimacy. Furthermore, it argues that relations between actors should reflect the comparative analysis of the legitimacy assets that each actor can bring into governance processes. Put succinctly, the volume illustrates that public authority is relative between actors and relative to specific legitimacy assets. Drawing on the expertise of leading scholars in the field, it offers a thought-provoking and rigorous analysis of the long debated question of who should do what in European and international law. [less ▲]

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See detailThe Idea of Relative Authority in European and International Law
Venzke, Ingo; Mendes, Joana UL

in International Journal of Constitutional Law (2018), 16(1), 75-100

The present contribution reacts to concerns about the legitimacy of supra- and international public authority by introducing the idea of relative authority. It argues that public authority is relative ... [more ▼]

The present contribution reacts to concerns about the legitimacy of supra- and international public authority by introducing the idea of relative authority. It argues that public authority is relative, first, in the sense that the exercise of authority by one actor always stands in relation to others and, second, that the allocation of authority should be informed by the legitimacy assets that different actors can bring into the governance process. It develops an argument in favor of a specific, articulated allocation of public authority. Like other legal approaches to global governance it is inspired by domestic legal theory and thinking. It distinguishes itself through its focus on questions of institutional choice: Who should do what in European and international law? While ideas of the separation of power face an uphill battle in the variegated institutional settings on the European and even more so international level, the core normative program embedded in this idea provides traction. The contribution offers the idea of relative authority as a core part of an argumentative framework to critique and help justify the exercise of supra- and international public authority. [less ▲]

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See detailAdministrative Discretion in the EU: Comparative Perspectives
Mendes, Joana UL

in Rose-Ackerman, Susan; Lindseth, Peter (Eds.) Comparative Administrative Law (2017)

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See detailBounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU
Mendes, Joana UL

in Modern Law Review (2017), 80(3), 443-472

Against the background of the reinforcement of the EU executive pursuant to the post-2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an ... [more ▼]

Against the background of the reinforcement of the EU executive pursuant to the post-2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body’s discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re-allocation of executive authority within the EU (sanctioned in UK v Parliament and Gauweiler). The article traces the distinction’s roots in legal conceptions that have shaped legal-administrative thinking since the early days of the Etat de Droit or Rechtsstaat. It proposes a public-interest-regarding conception of discretion where, in an institutional context in which courts’ reviewing role may be limited, discretion’s relationship to law is a matter of how legal norms may operate in the spheres of discretion that they attribute to decision-makers, rather than as a matter of how courts may review an exercise of discretion [less ▲]

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See detailExecutive Rulemaking: Procedures in Between Constitutional Principles and Institutional Entrenchment
Mendes, Joana UL

in Harlow, Carol; Leino-Sandberg, Päivi; della Cananea, Giacinto (Eds.) Research Handbook in EU Administrative Law (2017)

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See detailThe External Administrative Layer of EU Law-making: International Decisions in EU Law and the Case of CETA
Mendes, Joana UL

in European Papers (2017), 2(2), 489-517

The legal status of binding and non-binding international decisions adopted by global regulatory bodies in EU law, their authority (as acknowledged in the case law of the CJEU) and legal effects allow one ... [more ▼]

The legal status of binding and non-binding international decisions adopted by global regulatory bodies in EU law, their authority (as acknowledged in the case law of the CJEU) and legal effects allow one to characterise them as the external administrative layer of EU law-making. Mega-regional agreements, of which the Comprehensive Economic and Trade Agreement (CETA) is an instance, have the potential to expand this tier of aw. This article maps the substantive legal effects of international decisions in EU law as expounded by the CJEU, arguing that the case law the Court developed is transposable to future decisions of CETA bodies. Furthermore, it contrasts their possible substantive impact in EU law with the weaknesses of procedural controls over the exercise of public authority by those bodies. [less ▲]

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See detailParticipation in a New Regulatory Paradigm: Collaboration and Constraint in TTIP's Regulatory Cooperation
Mendes, Joana UL

E-print/Working paper (2016)

Regulatory cooperation is a core aspect of mega-regional agreements in liberalizing trade and investment, as it enables the parties to bridge their regulatory divergences beyond what is defined in the ... [more ▼]

Regulatory cooperation is a core aspect of mega-regional agreements in liberalizing trade and investment, as it enables the parties to bridge their regulatory divergences beyond what is defined in the text of the agreements. It relies on institutional and procedural structures that entail both the mutual adjustment of domestic procedures of the parties and new international fora where regulators meet to negotiate and deliberate. In the case of TTIP, regulatory cooperation will be the setting in which decisions will be prepared or made on the differences between EU and US regulation that could be usefully overcome; on the technical requirements that are unnecessarily duplicated; on the standards that should remain in place because they contend with public policy objectives in a way that would not be compatible with domestic standards; on the areas that are too distinct to justify attempts at mutual recognition or other forms of regulatory compatibility; on the standards that both parties will promote globally. This paper focuses on participation, which in addition to information exchanges and regulatory impact assessments, forms part of the trio of “good regulatory practices” that constitute the procedural basis of regulatory cooperation under TTIP. [less ▲]

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See detailThe Making of Delegated and Implementing Acts: Legitimacy Beyond Inter-Institutional Balances
Mendes, Joana UL

in Bergström, Carl Frederik; Ritleng, Dominique (Eds.) Rule-making by the European Commission: the New System (2016)

The relative power of the Commission, the Parliament and the Council in the adoption of delegated and implementing acts, including the debate on the delimitation of the scope of these acts, has dominated ... [more ▼]

The relative power of the Commission, the Parliament and the Council in the adoption of delegated and implementing acts, including the debate on the delimitation of the scope of these acts, has dominated the debate on the scheme of non-legislative acts introduced by the Lisbon Treaty. This chapter argues that approaching decision-making procedures of delegated and implementing acts only from an institutional lens is normatively insufficient, in two respects. First, it is incongruous with the Treaty provisions on democracy: not only an inter-institutional perspective is insufficient to ensure the democratic legitimacy of delegated and implementing acts, but also it ignores the relationships between the makers of legal acts and the outer sphere composed of citizens and legally affected persons. Secondly, it also overlooks core functions of procedures that are relevant to ensure the legitimacy of public acts. Procedures are a means to rationalise public action, by channeling information, weighing competing interests, and allowing scrutiny of the choices made. If designed accordingly, procedures could concretise democracy as a Union founding principle also in the making of delegated and implementing acts. [less ▲]

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See detailDiscretion, Care and Public Interests in the EU Administration: Probing the Limits of Law
Mendes, Joana UL

in Common Market Law Review (2016), 53(2), 419-452

Recent high profile judgments of the European Court of Justice (ESMA and Gauweiler) have endorsed the expansion of the EU’s executive powers, including those of its administration. Once such powers are ... [more ▼]

Recent high profile judgments of the European Court of Justice (ESMA and Gauweiler) have endorsed the expansion of the EU’s executive powers, including those of its administration. Once such powers are attributed or judicially endorsed, how far may law reach in structuring the exercise of discretion by EU administrative actors? The article analyses the way the EU courts have reviewed administrative discretion in instances where they have performed a close scrutiny thereof. It argues that the EU courts downplayed the role law ought to have in structuring the exercise of administrative discretion, by overlooking the public interests that ought to be pursued by force of legal norms. By contrast, the control of discretion by the European Ombudsman illustrates a different and normatively more demanding understanding of how law may operate in relation to discretion. [less ▲]

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See detailRegulatory Cooperation Under TTIP: Rulemaking and the Ambiguity of Participation
Mendes, Joana UL

in Pantaleo, Luca; Douma, Wybe; Takacs, Tamara (Eds.) Tiptoeing To TTIP: What Kind Of Agreement For What Kind Of Partnership? (2016)

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See detailParticipation in Rule-making: European Union
Mendes, Joana UL

in Auby, Jean-Bernard (Ed.) Droit comparé de la procédure administrative (2016)

Detailed reference viewed: 60 (6 UL)
See detailThe Democratic Foundations of the Union: Representative Democracy and the Legal Challenge of Article 11 TEU
Mendes, Joana UL

in Blockmans, Steven; Lazowski, Adam (Eds.) Research Handbook in EU Institutional Law (2016)

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See detailAdministrative Procedure, Administrative Democracy
Mendes, Joana UL

in Auby, Jean-Bernard (Ed.) Droit comparé de la procédure administrative (2016)

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See detailLa Legittimazione dell' Amministrazione dell' UE: Tra Istanze Istituzionali e Democratiche
Mendes, Joana UL

in de Lucia, Luca; Marchetti, Barbara (Eds.) L'Amministrazione europea e il suo diritto (2015)

EU administrative actors – much alike national administrative actors – claim to act legitimately on a variety of grounds: expertise, fairness, efficiency, effectiveness, legality (of which competence is ... [more ▼]

EU administrative actors – much alike national administrative actors – claim to act legitimately on a variety of grounds: expertise, fairness, efficiency, effectiveness, legality (of which competence is an important aspect). Normative judgments on the legitimacy of their actions may rely on a combination of these and other factors, thereby also combining the different values they convey, or single out one to the detriment of others. This chapter sets out to examine the broader legal constraints to the way EU administrative actors manage their legitimacy. Within the boundaries of legality, are EU administrative actors free to determine the sources of legitimacy, or a specific combination thereof, that justify their action? Possible legal bounds could derive from two sources. First, the core institutional features of these actors – their composition, functioning and formal powers – both ground their institutional capacity and allow them to relate to specific legitimacy assets to justify their decisions. Second, the Treaty defines legal principles that ought to ground and frame the actions of the Union. Here the focus will be on the implications of the Treaty provisions on democracy to normative assessments of the legitimacy of the EU administration. By examining these two aspects, this chapter will show the specific contours that the typical claims on the legitimacy of administrations ought to acquire in the institutional and constitutional frameworks of the EU. [less ▲]

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See detailLaw, Public Interest and Interpretation: Prolegomena of a Normative Framework on Administrative Discretion in the EU
Mendes, Joana UL

E-print/Working paper (2015)

It is conventionally assumed that administrative discretionary decisions are determined by political and expert-driven considerations and that law’s structuring and constraining capacity in that regard is ... [more ▼]

It is conventionally assumed that administrative discretionary decisions are determined by political and expert-driven considerations and that law’s structuring and constraining capacity in that regard is and should be limited. Law defines a space within which discretionary choices are irrelevant to law because they have the same legal value. These tenets have shaped both the ways the Court of Justice of the European Union has approached judicial review of discretion and, more generally, the way law is perceived to structure administrative discretion in the Member States and also in the EU. However, the recent expansion of the regulatory powers of the European Union justifies revisiting these basic axioms. In particular, how far should discretion be shielded from the values that EU law conveys? This paper proposes a normative elaboration of a core idea of public law to stress that law twins administrative discretion with a duty of regard to pre-determined public interests. On this basis, legal rules are able to provide a yardstick of critique of decisions that administrative officials adopt within spaces of discretion. An analysis of the Meroni judgment shows how this argument applies to EU law. But this claim only prepares the ground for a more complex inquiry: How does law operate – and how should it operate – within the spaces of administrative discretion, and how should courts review discretionary decisions? Administrative decision-makers construct the law in a specific institutional context in view of their specific tasks. Arguably, one should understand the specific processes through which they interpret the law to know how law may provide substantive criteria that guide discretionary choices. Such understanding would also be the basis to define and assess suitable degrees of judicial review of administrative discretion. One could then make a critical assessment – difficult to make at present – of the shifting boundaries between spaces of discretion and of judicial review that the dictum “manifest error of assessment, misuse of power or excess of power” conceals. This latter argument draws on the debate among US administrative law scholars on agency interpretation of statutes, but it is also mindful of conceptual distinctions that have prevailed in legal scholarship in Europe. The paper defines the prolegomena of a normative framework of a broader research project. It is work in progress. [less ▲]

Detailed reference viewed: 64 (5 UL)