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 ▲]

Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

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 ▲]