References of "Mendes, Joana 50022901"
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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 detailThe EU Administrative Institutions, Their Law and Legal Scholarship
Mendes, Joana UL

in Cane, Peter; Hoffman, Herwig; Lindseth, Peter (Eds.) Oxford Handbook on Comparative Administrative Law (in press)

The chapter approaches the EU administrative institutions as catalysts of the development of administrative law of the European Union. As a chapter of the Oxford Handbook on Comparative Administrative Law ... [more ▼]

The chapter approaches the EU administrative institutions as catalysts of the development of administrative law of the European Union. As a chapter of the Oxford Handbook on Comparative Administrative Law, it explains the main traits of those institutions, how legal scholarship has portrayed them and how it has addressed the core aspects of their legal regimes. Furthermore, it traces the emergence and current state of EU administrative law, characterising the different roles comparative administrative law has had at different stages. It highlights the initial dissonance between the specificities of the EU administrative institutions and the state-matrix of general principles that were developed on the basis of functional comparison; the role of legal scholarship in shaping EU administrative law, in its efforts to give effect to an “utopia” (Chiti, 2007) of an integrated administration constitutionally framed by general principles and fundamental rights; the limits of resorting to comparative administrative law in the context of EU integration and, briefly, the crossroads at which EU administrative law currently stands. [less ▲]

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

Book published by Oxford University Press (in press)

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See detailThe Principle of Transparency and Access to Documents in the EU: for what, for whom, and of what?
Mendes, Joana UL

in Auby, Jean-Bernard; Jacqueline, Dutheil de la Rochère (Eds.) Traité de Droit Administratif (in press)

Written as a chapter for the third edition of the Traité de Droit Administratif Européen, directed by Jacqueline Dutheil de la Rochère and Jean Bernard Auby (Bryulant, forthcoming), this paper ... [more ▼]

Written as a chapter for the third edition of the Traité de Droit Administratif Européen, directed by Jacqueline Dutheil de la Rochère and Jean Bernard Auby (Bryulant, forthcoming), this paper characterizes transparency as an ambivalent principle of EU law and governance, serving both a functional and a democratic rationale. The analysis focuses on the right of access to documents, a right whose scope and democratic function very much depend on who requests and on the interpretation of the exceptions to access. While the former is a matter of practice, the latter is essentially the result of the main approaches that the Court of Justice of the European Union (CJEU) has followed hitherto: strict interpretation and application of the exceptions, on the one hand, and general presumptions of non-disclosure, on the other. The paper presents both. It argues that, while much criticized in the literature as contrary to the democratic function of the regulation on access to documents, general presumptions of non-disclosure merit a more nuanced analysis. They can be, under restricted circumstances, a way to protect the democratic function of the citizen’s right to access. Yet, the uncertain and evolving criteria for the establishment of a general presumption of non-disclosure have effectively carved out whole categories of documents from the possibility of access, insulating significant sections of EU public action from the pressure of democratic claims. Overall, the right of access to documents, as ancillary to a principle of democracy, has a limited capacity to change the nature of the polity and of the system of governance in which it is embedded. [less ▲]

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See detailThe Foundations of the Duty to Give Reasons and a Normative Reconstruction
Mendes, Joana UL

in Fisher, Elizabeth; King, Jeff; Young, Alison (Eds.) The Foundations and Future of Public Law (in press)

Despite operating in highly constrained legal environments, executive actors may act in a constitutive capacity. This observation prompts a critical assessment of the role of procedural principles in EU ... [more ▼]

Despite operating in highly constrained legal environments, executive actors may act in a constitutive capacity. This observation prompts a critical assessment of the role of procedural principles in EU administrative law. As norms of conduct deployed by executive bodies during the process of norm concretization, procedural principles may have legal dimensions that, while constitutionally relevant, may not come to the fore in judicial review. The chapter develops this argument with regard to the multifaceted character of the duty to give reasons. It argues that, as a norm of conduct, the duty to give reasons ought to ensure the constitutional embeddedness of the constitutive action of EU executive bodies. Such role is consistent both with the original relevance of the duty to give reasons to the law of integration (in the context of the European Coal and Steel Community) and with the current EU constitutional framework. The latter justifies reinstituting the original constitutional function of the duty to give reasons, irrespective of its current scope in the context of judicial review. [less ▲]

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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 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 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 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 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 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 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 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 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 detailAdministrative Procedure, Administrative Democracy
Mendes, Joana UL

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