References of "Mendes, Joana 50022901"
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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 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 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 detailAdministrative Procedure, Administrative Democracy
Mendes, Joana UL

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

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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)

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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 ▲]

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

Report (2014)

Detailed reference viewed: 123 (8 UL)
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 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 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 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 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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