Administrative Law in the European Union: The Liberal Constitutional Paradigm and Institutionalism as an Imperfect Alternative

in Harlow, Carol (Ed.) A Research Agenda for Administrative Law (in press)

EU administrative law – both as law and as a scholarly field – has, to a significant extent, suffered from a tendency to seek analogies with categories of state public law, more especially perhaps in its ... [more ▼]

EU administrative law – both as law and as a scholarly field – has, to a significant extent, suffered from a tendency to seek analogies with categories of state public law, more especially perhaps in its general legal principles and norms common to the various sectors of EU administrative power. I argue in this chapter that this normative approach, which has largely shaped its judicial and scholarly development and has contributed greatly to bringing about an administrative rule of law in the European Union, is limited. Phenomena that, while present in other legal systems, are core to the functioning of the EU legal order cannot be suitably tackled with conceptions of public law inspired by the binary logic of protecting individual legal spheres from the exercise of public authority that has largely grounded administrative law in state settings. In the final section, I propose an imperfect alternative perspective on public law, drawing on the institutionalism of the Italian jurist, Santi Romano. [less ▲]

Law and Discretion in Monetary Policy and in the Banking Union: Complexity Between High Politics and Administration

in Common Market Law Review (in press)

The controversy over the degree of judicial review of monetary policy decisions triggered by the contrasting Weiss judgments of the German Constitutional Court and of the Court of Justice of the European ... [more ▼]

The controversy over the degree of judicial review of monetary policy decisions triggered by the contrasting Weiss judgments of the German Constitutional Court and of the Court of Justice of the European Union invites an inquiry into the role of law in areas characterised by a high degree of political and technical complexity. This article singles out the structural conditions that qualify complexity in specific instances of decision-making: prognostic assessments, goal-oriented decisions, marked by uncertainty, legal indeterminacy and discretion. These traits characterise both monetary policy decisions and some regulatory decisions taken within the banking union, such as the setting of minimum requirements for own funds and eligible liabilities (MREL) and the calculation of the leverage ratios of credit institutions (Livret A judgments). Irrespective of the very distinct formal-institutional legal frameworks of these two policy fields, in those conditions legality may be determined by the discretionary choices of the decision-maker. For this reason, they impact the court’s deployment of legal principles, namely proportionality and careful and impartial examination. This cross-sector comparison sheds light on the relative specificity of monetary policy, and leads to rejecting the transposition of a distinction between ‘high politics’ and ‘ordinary administration’ to EU law, as a means of both explaining and guiding different degrees of judicial review in conditions of complexity. The different constitutional relevance of monetary policy decisions and of ‘ordinary’ banking supervision requires not a distinction that can rationalise judicial review, but a full consideration of the role that the law must have in supporting non-judicial accountability [less ▲]

The Foundations of EU Administrative Law as a Scholarly Field: Functional Comparison, Normativism and Integration

in European Constitutional Law Review (2022), 18(4), 706-736

The functional comparison of administrative laws enabled judges and scholars to establish and develop EU administrative law based on a state-matrix of general principles. They mobilised functional ... [more ▼]

The functional comparison of administrative laws enabled judges and scholars to establish and develop EU administrative law based on a state-matrix of general principles. They mobilised functional comparison to build a law and a polity and to ground a scholarly field. A meta-analysis of the work of Jürgen Schwarze examines the choices of object, objectives and method that grounded one prevailing way of approaching EU administrative law, as well as the respective assumptions and normative implications. Through comparison, the logic of protecting the private legal sphere from unilateral exercises of authority provided the conceptual framework for EU administrative law. But it largely ignored structural features of the EU administration (public-private collaboration and interpenetration between state and EU administrations), ill-fitting with the binary liberty-authority that grounded core principles of national administrative law. It ignored also the specificities of the functional polity in which it was inserted. EU administrative law remains imbued with this original liberal normativist approach, constructed by judges and scholars, who in different guises, contributed to fashioning the state-like characteristics of the EU. This legacy of comparative administrative law should be critically examined, 30 years later, at a very different stage of EU integration [less ▲]

The Principle of Transparency and Access to Documents in the EU: for what, for whom, and of what?

in Auby, Jean-Bernard; Jacqueline, Dutheil de la Rochère (Eds.) Traité de Droit Administratif (2022)

This chapter 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 ... [more ▼]

This chapter 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. {Note: Written in December 2019 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, published in 2022} [less ▲]

Democratic Legitimacy of the Single Resolution Board: Is Legality the Right Question?

E-print/Working paper (2021)

The choice to entrust EU banking resolution to an independent body opened the familiar democratic legitimacy conundrum that besets independent institutions in national and in EU law. This paper examines ... [more ▼]

The choice to entrust EU banking resolution to an independent body opened the familiar democratic legitimacy conundrum that besets independent institutions in national and in EU law. This paper examines both the conventional view on the relationship between legality control and democratic legitimacy, that the German Federal Constitutional Court endorsed in its SSM/SRM judgment, and the limits of such conception. Conceived as a “compensatory measure”, legal protection through judicial review and internal administrative review enables the Court to bring independent institutions within the (national) constitutional framework that they strain. Law’s binding character becomes a matter of ensuring not only the rule of law but also democracy. Yet, even detailed legal mandates cannot preclude administrative bodies to define the way law is completed and concretised. While the Court does not adhere to a ‘transmission-belt model’ of administrations, not surprisingly – as a court deciding on democratic legitimacy – it falls short of recognising that legality can do very little to ground the democratic legitimacy of fundamental political choices, such as those entrusted to the Single Resolution Board. [less ▲]

The Evolution of EU Administrative Law

in Craig, Paul; de Búrca, Graínne (Eds.) The Evolution of EU Law (2021)

The chapter discusses the emergence of EU administrative law and its change over time. It maps its evolution along three main axes, concerning the internal dynamics between EU and national components, its ... [more ▼]

The chapter discusses the emergence of EU administrative law and its change over time. It maps its evolution along three main axes, concerning the internal dynamics between EU and national components, its functional objectives and legitimacy foundations. The chapter, therefore, tells a story of EU administrative law as one of advances and unresolved issues, of achievements and failures in the clarification of its regulatory project. In particular, the systemic effects of administrative convergence brought about over the years remain unstable, while the constant evolution of the forms of administrative action challenges the functions of EU administrative law of power-establishing and power-checking, and the tension between the legitimacy foundations of EU administrative law continues to cause unease. [less ▲]

Constitutive Powers of Executive Bodies: a Functional Analysis of the Single Resolution Board

in Modern Law Review (2021), 84(6), 13301359

Executive bodies can acquire constitutive powers,even if subject to detailed substantive strictures. Constitutive powers give executive bodies the possibility to transform normative understandings of the ... [more ▼]

Executive bodies can acquire constitutive powers,even if subject to detailed substantive strictures. Constitutive powers give executive bodies the possibility to transform normative understandings of the meaning of norms and of the goals of public action into legal forms. These bodies thus engage in a jurisgenerative process that enables them to progressively delimit their legal mandates in reaction to socio-economic and political realities. The article illustrates this argument by examining the power of the EU Single Resolution Board (SRB) to determine the resolution of a bank in crisis. It concludes that, in view of constitutive powers, the normative demands that the EU legal system places on executive and administrative bodies must be reconsidered. On that basis and to that effect, mechanisms of accountability should be reconceptualised and reoriented. [less ▲]

At the End of the Law: A Moment of Truth for the Eurozone and the EU

Diverse speeches and writings (2020)

The Contingency of Governance in the EU (Contribution to the online symposium on Poul Kjær (ed.), The law of political economy: Transformations in the function of law (CUP 2020))

Diverse speeches and writings (2020)

https://verfassungsblog.de/the-contingency-of-governance-in-the-eu/

The Foundations of the Duty to Give Reasons and a Normative Reconstruction

in Fisher, Elizabeth; King, Jeff; Young, Alison (Eds.) The Foundations and Future of Public Law (2020)

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 ▲]