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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 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 ▲]

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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 detailRule of Law and Participation: A Normative Analysis of Internationalised Rulemaking as Composite Procedures?
Mendes, Joana UL

in International Journal of Constitutional Law (2014), 12(2), 370-401

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this article argues that the depletion of such ... [more ▼]

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this article argues that the depletion of such standards in processes of reception of trans- and international decisions within the EU potentially leads to situations of unrestrained authority and can constitute a challenge to the rule of law. It sets out the basis for a conceptual and normative analysis underpinning the argument that procedural standards of participation can be considered part of the rule of law. The depletion of such standards is one facet of a broader problem. Intertwined decision-making procedures that cut across EU and international levels of governance challenge the ability of law to limit executive action. The challenges that internationalized rulemaking procedures pose to law can only be apprehended if they are seen in their entirety as segments of a broader regulatory cycle. On this basis, this article proposes a re-conceptualization of the decision-making procedures that operate the substantive coordination between different sites of governance. Having a EU focus, the article contributes to analyzing the challenges and possibilities of the rule of law in the current realities of diffusion of power resulting from internationalization. [less ▲]

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See detailBook II - Administrative Rulemaking
Mendes, Joana UL; Curtin, Deirdre; Hoffman, Herwig C. H. et al

Report (2014)

Book II aims to fill a gap in the existing legal system of the EU. It links the provisions, general principles of law and values arising from primary law with the procedure for adoption of non-legislative ... [more ▼]

Book II aims to fill a gap in the existing legal system of the EU. It links the provisions, general principles of law and values arising from primary law with the procedure for adoption of non-legislative acts of general application. Progressively over the past decades, a set of constitutional values emerged as general principles of law both in the case law of the CJ and in (incremental) Treaty amendments. Such principles have until now mainly shaped the EU’s institutional structures and decision-making procedures with regard to the EU’s formalised legislative procedure. Rule-making outside of legislative procedures, the subject matter of this book, has arguably been much less influenced by these constitutional principles. The implementation of such principles is, in any event, scattered across single provisions in some but not all policy areas. The provisions of this book are designed to ensure their systematic infusion into non-legislative rule-making more generally [less ▲]

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See detailArticle 42 - Right of Access to Documents
Mendes, Joana UL; Curtin, Deirdre

in Peers, Steve; Hervey, Tamara; Kenner, Jeff (Eds.) et al The EU Charter of Fundamental Rights - A Commentary (2014)

The right guaranteed in this Article has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No 1049/2001 has subsequently been adopted. The European Convention has ... [more ▼]

The right guaranteed in this Article has been taken over from Article 255 of the EC Treaty, on the basis of which Regulation (EC) No 1049/2001 has subsequently been adopted. The European Convention has extended this right to documents of institutions, bodies and agencies generally, regardless of their form (see Article 15(3) of the Treaty on the Functioning of the European Union). In accordance with Article 52(2) of the Charter, the right of access to documents is exercised under the conditions and within the limits for which provision is made in Article 15(3) of the Treaty of the Functioning of the European Union. [less ▲]

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See detailReNEUAL model rules on EU administrative procedure
Mendes, Joana UL; Hofmann, Herwig UL; Schneider, Jens-Peter et al

Report (2014)

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See detailConsumers' Access to EU Competition Procedures: Outer and Inner Limits
Mendes, Joana UL

in Common Market Law Review (2014), 51(2), 483-521

Enforcement of competition law affects consumers' economic interests, as part of the public interests EU competition law protects. Therefore, consumers ought to be involved in the respective enforcement ... [more ▼]

Enforcement of competition law affects consumers' economic interests, as part of the public interests EU competition law protects. Therefore, consumers ought to be involved in the respective enforcement procedures. Against this normative background, we analyse consumers' access to the public enforcement by the Commission; we assess whether and how the formal role they are assigned during this procedure and the way access is defined enable consumers to protect their economic interests. We identify outer and inner limits to consumers' access to competition enforcement procedures, arising from the Commission's discretion in handling complaints and in defining access to information. We critically evaluate those limits against the contention that the enforcement of competition law rules, and the way it is pursued by administrative actors, ought to be guided by the public interests inherent in EU competition law. [less ▲]

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See detailConstitutionalising EU Executive Rule-Making Procedures: A Research Agenda
Mendes, Joana UL

in European Law Journal (2013), 19(1), 1-21

The existence or non-existence of procedural rules for executive rule-making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional ... [more ▼]

The existence or non-existence of procedural rules for executive rule-making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional principles, such as transparency, openness and participatory democracy, highlighted by the Treaty of Lisbon constitute decisive normative standards for the design of administrative procedures in the EU, with a considerable impact on substantive outcomes. We apply such principles to executive rule-making procedures in the EU, highlight the salience of this discussion and argue that systematisation of executive rule-making procedures is needed in order to implement constitutional principles in a complex and plural environment [less ▲]

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See detailDelegated and Implementing Rulemaking: Proceduralisation and Constitutional Differentiation
Mendes, Joana UL

in European Law Journal (2013), 19(1), 22-41

The reform of non-legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu ... [more ▼]

The reform of non-legislative acts introduced by Articles 290 and 291 of the Treaty on the Functioning of the European Union was guided by concerns regarding the democratic legitimacy of (lato sensu) implementing acts of the Union. However, it has ignored the centrality of transparency in the Union's democracy and the role of participation as a complementary source of democracy. This article argues that the procedures leading to the adoption of delegated and implementing acts are subject to the treaties' provisions on transparency and participation, and should be shaped by them. It analyses the constitutional choices underlying Articles 290 and 291, with a view to assessing whether and to what extent the material, organic and functional profiles of delegated and implementing acts condition procedural rules on transparency and participation to be followed in their adoption. [less ▲]

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See detailProceduralising EU Non-legislative Rules: Bridging the Gaps
Mendes, Joana UL; Curtin, Deirdre; Hofmann, Herwig UL

in European Law Journal (2013)

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See detail[Book Review] Mark Dawson, "New Governance and the Transformation of European Law - Coordinating Eu Social Law and Policy"
Mendes, Joana UL

in Maastricht Journal of European and Comparative Law (2013), 20(4), 653-658

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See detailRule of Law and Participation: A Normative Analysis of Internationalised Administrative Procedures
Mendes, Joana UL

E-print/Working paper (2013)

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this paper argues that the depletion of such ... [more ▼]

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this paper argues that the depletion of such standards in processes of reception of trans- and international decisions within the EU potentially leads to situations of unrestrained authority and can constitute a challenge to the rule of law. The first part of the paper identifies the conditions under which this may occur. It sets out the basis for a conceptual and normative analysis underpinning the argument that procedural standards of participation can be considered part of the rule of law. As such, the depletion of procedural standards emerges as one facet of a broader problem – the ability of public law to structure discretion and constrain the exercise of authority that results from internationalised procedures. These intertwined decisionmaking procedures cutting across different levels of governance challenge law’s ability to limit executive action and, hence, the rule of law premise that the exercise of public authority ought to be limited by law. In this way, and despite its EU focus, the paper contributes to analysing the challenges and possibilities of the rule of law in the current realities of diffusion of power resulting from internationalisation. This perspective requires a re-conceptualisation of the decision-making procedures that operate the substantive coordination between the sites of governance involved. The processes through which inter- and transnational rules and decisions are received in EU law are only segments of a broader regulatory cycle initiated by inter- and transnational bodies – of which the receiving authorities are either members, observers, or, otherwise active collaborating parties. Such processes can neither be fully grasped by focusing only on the segments of decision-making developed within each legal system, nor can the challenges they pose to law be apprehended from this perspective. They ought to be seen in their entirety as segments of a broader regulatory cycle. On this basis, the second part of the paper proposes two possible routes to rethink internationalised procedures [less ▲]

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See detailEU Law and Global Regulatory Regimes: Hollowing Out Procedural Standards?
Mendes, Joana UL

in International Journal of Constitutional Law (2012), 10(4), 988-1022

This article examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, in particular ... [more ▼]

This article examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, in particular participation. Illustrative examples shed light on the practical interactions between EU and global regulatory systems and their likely negative impact on procedural standards. The author argues that the current EU rules of reception of such decisions are limited in two respects. First, issues of procedural protection are decided by the system of origin, the procedural rules of which may not be as developed as those in force in the EU. Second, rules of reception do not capture the effects of the varied interconnections developed between regulatory regimes at the global and at the EU level. The possible depletion of procedural standards in the segments of EU law that result from the reception of decisions of international bodies has relevant legitimacy implications. Procedural standards that may be bypassed have become accepted standards of legitimacy of the exercise of public power within the EU. Some give effect to norms of EU law and governance now enshrined in the Treaties. To the extent that they may be weakened by effect of the reception of decisions of international organizations and bodies, the exercise of public authority is potentially unleashed in the areas of intersection of legal systems. The article finally sketches the constitutional, procedural and theoretical paths that could lead to preserving procedural standards in the areas of intersection between EU and global regulatory regimes. [less ▲]

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See detailCitizens and EU Administration: Direct and Indirect Links
Mendes, Joana UL; Curtin, Deirdre

Report (2011)

This briefing note focuses on the legal and non-legal avenues by which transparency and participation have been ensured in EU law and practice. Transparency and participation have produced the main recent ... [more ▼]

This briefing note focuses on the legal and non-legal avenues by which transparency and participation have been ensured in EU law and practice. Transparency and participation have produced the main recent changes in the way the EU administration relates to its citizens. We provide an overview of the current law and practice and their strengths and weaknesses post-Lisbon. In addition, reference is made to the European Ombudsman and the right to petition the European Parliament. [less ▲]

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See detailAdministrative Law Beyond the State: Participation at the Intersection of Legal Systems
Mendes, Joana UL

in Mattarella, Bernardo; Chiti, Edoardo (Eds.) The Relationships Between Global Administrative Law and European Administrative Law (2011)

This chapter assesses, on a first approach, the impact that the reception of international or global norms by European Union (EU) law may have on participation opportunities and guarantees that would ... [more ▼]

This chapter assesses, on a first approach, the impact that the reception of international or global norms by European Union (EU) law may have on participation opportunities and guarantees that would otherwise be granted to private persons at the EU level. The analysis is premised, inter alia, on the assumption that the varied forms of interaction between the European and international or global regulatory regimes intertwine procedures developed at different regulatory levels and may lead to unitary outcomes. This may require a unitary conception of the procedure when procedural guarantees – in this case participation – are at stake. The difficulties in securing participation in the realm of, in fact, intertwined procedures are explained. Three different types of interaction between international regulatory regimes and the EU legal order – direct reception, reception filtered by EU procedures specifically created for this purpose, reception following existing EU procedures – elucidate how the possible impacts of this interaction between legal systems on EU participation rules and practices may operate. This chapter concludes that the impact interactions between legal systems may have on participation is not sufficiently accounted for in EU law. The reception of rules and decisions adopted by international bodies in EU law entails risks to the very purpose of EU participation procedures. It may devoid them of sense or, at least, hinder their effectiveness. As a result, and given that procedural standards may be less developed in the international and global arena, the values and rationales of participation as endorsed in EU procedures may be compromised. [less ▲]

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See detailParticipation and the Role of Law after Lisbon: a Legal View on Article 11 TEU
Mendes, Joana UL

in Common Market Law Review (2011), 48(6), 1849-1878

Participation in EU governance has been largely kept outside the realm of law. Article 11 TEU has the potential to change this status quo, despite the fact that, with the exception of the European ... [more ▼]

Participation in EU governance has been largely kept outside the realm of law. Article 11 TEU has the potential to change this status quo, despite the fact that, with the exception of the European citizens' initiative, it represents more the recognition of previous institutional practices than an innovation proper. This contribution presents a normative interpretation of Article 11 TEU and analyses the implications of the distinct transformation this Treaty article postulates: the transition from participation based on a logic of participatory governance to participation that concretizes democracy as a "value" or a founding principle of the Union, and that responds to the respective normative yardsticks, such as equality and transparency. This is the main challenge posed by Article 11 TEU. While acknowledging that law is not the only way of giving effect to the prescriptions of this Treaty article, this contribution discusses the role of law in operating the normative shift mentioned. It analyses why different EU institutions may be urged to reconsider the role of law with regard to participation, in view not only of Article 11 TEU - as law may be needed to guarantee the conditions that ensure participation as a source of democratic legitimacy in the EU - but also of other Treaty provisions. [less ▲]

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See detailEU Law and Global Regulatory Regimes: Hollowing Out Procedural Standards
Mendes, Joana UL

E-print/Working paper (2011)

This paper examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, such as participation ... [more ▼]

This paper examines the effects that the reception of decisions of international organizations and bodies in EU law may have in procedural standards followed in EU law and practice, such as participation and transparency. Illustrative examples shed light on the practical interactions between EU and global regulatory systems and their likely negative impact on procedural standards. The current EU rules of reception of such decisions are limited in two respects. First, issues of procedural protection are decided by the system of origin, the procedural rules of which may not be as developed as those in force in the EU. Second, rules of reception do not capture the effects of the varied interconnections developed between regulatory regimes at the global and at the EU level. The paper argues that the possible depletion of procedural standards in the segments of EU law that result from the reception of decisions of international bodies has relevant legitimacy implications. Procedural standards that may be bypassed have become accepted standards of legitimacy of the exercise of public power within the EU. Some give effect to norms of EU law and governance now enshrined in the Treaties. To the extent that they may be weakened by effect of reception of decisions of international organizations and bodies, the exercise of public authority is potentially unleashed in those areas of intersection of legal systems. The paper further lays down the premises of a normative conception of the relationships between legal orders that would allow preserving procedural standards in the areas of interaction between EU and global regulatory regimes. [less ▲]

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See detailParticipation in EU Rulemaking. A Rights-based Approach
Mendes, Joana UL

Book published by Oxford University Press - 1st edition (2011)

The book is a critical legal analysis of the current scope of participation rights in EU law, embedded in the political and institutional contexts of European integration. Participation has featured ... [more ▼]

The book is a critical legal analysis of the current scope of participation rights in EU law, embedded in the political and institutional contexts of European integration. Participation has featured prominently in recent institutional and political developments that have been shaping the EU's constitutional framework — most intensely in the follow up of the Commission's White Paper on Governance. Yet, little attention has been paid to participation rights as a means of ensuring the procedural protection of persons affected by EU regulation in its diverse forms. Both the EU legislator and the EU Courts have largely ignored this dimension of the rule of law. This book shows why the current judicial and legislative conceptions are inadequate to ensure the legal protection of rights and interests affected by EU regulation. It defends that current conceptions reflect an excessively formalistic approach to participation rights — premised on the right to be heard in individual procedures — as well as a restrictive view regarding the relationships between the citizens and the administration. The book combines a conceptual analysis with an empirical scrutiny of three EU policy fields — food, state aid and financial services — and assesses the scope of participation rights in EU law against their rationales and underlying legal values. It makes a case for the extension of participation rights to new situations and new types of procedures, in particular those that would generally fall within the category of rulemaking. It thereby brings distinct normative insights into a crucial theme of EU administrative law. [less ▲]

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See detailThe Right to Be Heard in Composite Administrative Procedures: Lost in Between Protection?
Mendes, Joana UL

in European Law Review (2011), 36(5), 651-670

In this article, the authors examine and question the rule developed by the judiciary according to which, in composite EU administrative procedures, the right to be heard must in the first place be ... [more ▼]

In this article, the authors examine and question the rule developed by the judiciary according to which, in composite EU administrative procedures, the right to be heard must in the first place be ensured in the relationships between the affected person and the competent national administrative authority. Ensuring the possibility to be heard at the national level might be logically coherent with the institutional principles of EU law, namely with the principles of procedural autonomy and of loyal co-operation. However, the authors will argue that such principles ensure neither the procedural protection of the legal sphere of the persons affected nor the due consideration of the public interests voiced by the participants. The rule mentioned cannot be a general rule applicable irrespective of the concrete division of procedural competences between the national and EU authorities. They will further argue that, despite the fundamental nature of the right to be heard, the EU legislator has taken insufficient account of the consequences of the divided nature of composite administrative procedures for participation rights. [less ▲]

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