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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 ▲]

Detailed reference viewed: 167 (3 UL)
See detailComparative administrative law in the EU: the integration function and its limits
Mendes, Joana UL

in Bartl, Marija; Lawrence, Jessica (Eds.) The Politics of European Legal Research. Behind the Method (in press)

Detailed reference viewed: 19 (0 UL)
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See detailInstitutionalism and Comparative Administrative Law Beyond the Liberal State: Extrapolations from Santi Romano as seen by D’Alberti
Mendes, Joana UL

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

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See detailWhat Blanchard gets wrong: The puzzling persistence of managerialism in EU fiscal governance
Dani, Marco; Guarascio, Dario; Mendes, Joana UL et al

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 ▲]

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See detailDemocratic Legitimacy of the Single Resolution Board: Is Legality the Right Question?
Mendes, Joana UL

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 ▲]

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See detailConstitutive Powers of Executive Bodies: a Functional Analysis of the Single Resolution Board
Mendes, Joana UL

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 ▲]

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See detailThe Evolution of EU Administrative Law
Chiti, Edoardo; Mendes, Joana UL

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 ▲]

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See detailBeneath the spurious legality of the ECB’s monetary policy
Dani, Marco; Chiti, Edoardo; Mendes, Joana UL et al

Diverse speeches and writings (2021)

Detailed reference viewed: 75 (4 UL)
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See detail‘It’s the political economy..!’ A moment of truth for the eurozone and the EU
Dani, Marco; Chiti, Edoardo; Mendes, Joana UL et al

in International Journal of Constitutional Law (2021), 19(1), 309327

The article discusses the Weiss dispute from a political economy perspective. It first sets this litigation in its wider context, namely the protracted transformation of the Economic and Monetary Union ... [more ▼]

The article discusses the Weiss dispute from a political economy perspective. It first sets this litigation in its wider context, namely the protracted transformation of the Economic and Monetary Union (EMU) over the last decade, a decade which has revealed the structural flaws in its design. It then briefly sketches the changing role of central banking, from a fixation on fighting inflation to a more recent focus on combating deflation. This helps to explain the problematic character of the Weiss rulings and the commentaries they have provoked, illustrating a general failure to consider the limits of law, the result of clinging to different parts of the EMU wreckage, on the assumption that the current constitutional framework remains viable. Finally, the article emphasizes the transformative potential of the Weiss saga. The judicial conflict lays bare the unsustainability of the present arrangements, and reveals the necessity of a choice between genuinely federal integration and coordinated dismantling of EMU. [less ▲]

Detailed reference viewed: 112 (1 UL)
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See detailAt the End of the Law: A Moment of Truth for the Eurozone and the EU
Dani, Marco; Mendes, Joana UL; Ménendez, Agustín et al

Diverse speeches and writings (2020)

Detailed reference viewed: 39 (1 UL)
See detailRescuing the European Economy from COVID-19
Mendes, Joana UL

Diverse speeches and writings (2020)

Detailed reference viewed: 33 (5 UL)
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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 (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 ▲]

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See detailEU Executive Discretion: Again in Times of Emergency
Mendes, Joana UL

in Utrilla, Dolores; Shabbir, Anjum (Eds.) EU Law in Times of Pandemic. The EU's Legal Response to Covid-19 (2020)

Detailed reference viewed: 57 (1 UL)
See detailThe 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))
Mendes, Joana UL

Diverse speeches and writings (2020)

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

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See detailThe EU Administrative Institutions, Their Law and Legal Scholarship
Mendes, Joana UL

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 ▲]

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

Book published by Oxford University Press (2019)

Detailed reference viewed: 326 (19 UL)
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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 (2019)

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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 (2019)

Detailed reference viewed: 128 (5 UL)
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)

Detailed reference viewed: 260 (19 UL)
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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 ▲]

Detailed reference viewed: 107 (4 UL)