Constitutive Powers and Justification: The Duty to Give Reasons in EU Monetary Policy

in Dawson, Mark; Bobic, Ana (Eds.) Substantive Accountability in Europe’s New Economic Governance (in press)

The transformation of the ECB powers in the last decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government ... [more ▼]

The transformation of the ECB powers in the last decade opened fundamental questions pertaining to the judicial review of monetary policy decisions and, more deeply, to the role of law in the government of money. This chapter characterizes the powers of the ECB as constitutive and traced in this constitutive nature the roots for the difficulties of judicial review over monetary policy decisions. It argues that constitutive powers justify a shift in understanding the role of law in relation to the action of executive bodies. Law can and must operate in the absence (or irrespective) of judicial review, and support accountability outside of the courtroom. This last point is demonstrated through the analysis of the legal and constitutional scope of the duty to give reasons in EU law [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 ▲]

Institutionalism and Comparative Administrative Law Beyond the Liberal State: Extrapolations from Santi Romano as seen by D’Alberti

in VV., AA. (Ed.) Liber Amicorum Marco D’Alberti (2022)

What Blanchard gets wrong: The puzzling persistence of managerialism in EU fiscal governance

Diverse speeches and writings (2021)

The Covid-19 pandemic has prompted renewed debate over the architecture of Europe’s Economic and Monetary Union. In a recent blog post, "What Blanchard gets wrong: The puzzling persistence of ... [more ▼]

The Covid-19 pandemic has prompted renewed debate over the architecture of Europe’s Economic and Monetary Union. In a recent blog post, "What Blanchard gets wrong: The puzzling persistence of managerialism in EU fiscal governance", Marco Dani, Dario Guarascio, Joana Mendes, Agustin José Menéndez, Harm Schepel and Mike Wilkinson respond to a recent proposal to overhaul the EU’s current fiscal framework. They argue that while the EU’s fiscal rules should undoubtedly be reformed, a more radical solution is required that puts democratic politics at the heart of the EU’s fiscal governance. [less ▲]

Beneath the spurious legality of the ECB’s monetary policy

Diverse speeches and writings (2021)

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 ▲]

Rescuing the European Economy from COVID-19

Diverse speeches and writings (2020)

The EU Administrative Institutions, Their Law and Legal Scholarship

in Cane, Peter; Hoffman, Herwig; Ip, Eric (Eds.) et al Oxford Handbook of Comparative Administrative Law (2020)

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 ▲]

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 ▲]