Joana Mendes

Administrative law beyond the state: participation at the intersection of legal systems

This chapter assesses, on a first approach, the impact that the reception of international or global norms by European Union (EU) law may have on participation opportunities and guarantees that would otherwise be granted to private persons at the EU level. The analysis is premised, inter alia, on the assumption that the varied forms of interaction between the European and international or global regulatory regimes intertwine procedures developed at different regulatory levels and may lead to unitary outcomes. This may require a unitary conception of the procedure when procedural guarantees – in this case participation – are at stake. The difficulties in securing participation in the realm of, in fact, intertwined procedures are explained. Three different types of interaction between international regulatory regimes and the EU legal order – direct reception, reception filtered by EU procedures specifically created for this purpose, reception following existing EU procedures – elucidate how the possible impacts of this interaction between legal systems on EU participation rules and practices may operate. This chapter concludes that the impact interactions between legal systems may have on participation is not sufficiently accounted for in EU law. The reception of rules and decisions adopted by international bodies in EU law entails risks to the very purpose of EU participation procedures. It may devoid them of sense or, at least, hinder their effectiveness. As a result, and given that procedural standards may be less developed in the international and global arena, the values and rationales of participation as endorsed in EU procedures may be compromised.

Participation and Participation Rights in EU Law and Governance

The European Courts have maintained a restrictive approach to participation rights in EU administrative procedures. The right to be heard is primarily recognised to addressees of unfavourable administrative decisions or, at any rate, to those directly and individually concerned by them. As such, its scope is limited to procedures leading up to the adoption of individual decisions. In this book chapter, it is argued that the limits set by the European Courts, in particular the principled exclusion of participation rights from rulemaking procedures, lead to a mismatch between the powers exerted by the EU administration and the procedural guarantees that are recognised to the persons affected. Furthermore, these limits are unjustifiable in the light of the rationales of participation rights, as these have been interpreted by the European Courts. In contrast to the Courts’ stance, the author puts forward criteria that may lead to the recognition of participation rights in a way that better suits the requirements of the rule of law and a paradigm of EU administrative law that is respectful of the rights and legally protected interests of the citizens. In addition, the restrictive legal approach to participation rights contrasts with the increased resort to participation in EU governance. This book chapter also highlights the contrast between the scope and meaning of more political forms of participation, on the one hand, and participation rights, on the other, and argues that a broader recognition of participation rights contributes to bridging the distance between the configuration of participation in the political realm, on the one hand, and in the legal realm, on the other. This book chapter is based on the author’s PhD Thesis - Rights of participation. A rights-based approach to participation in administrative rulemaking - defended at the European University Institute on March 16th 2009.

Executive rule-making: procedures in between constitutional principles and institutional entrenchment

EU executive rule-making, as a phenomenon distinct from law-making tout court, has been the subject of significant institutional and academic discussion in EU law. The distinction between ‘measures directly based on the Treaty itself’ and ‘derived law intended to ensure their implementation’ animated since the 1970s the debate on the legal and institutional limits of implementing acts, including on the relative competence of the Council and of the Commission in this respect. Since the Lisbon Treaty, with its new scheme of delegated and implementing acts – distinct from legislative acts in the sense of Article 289(3) TFEU – much of the discussion has shifted to the distinction between these two types of acts, an issue which recent Court judgments have not clarified. EU executive rule-making is far from being limited to the acts now recognized in the Treaty. In a broad sense, it includes all non-legislative acts of general application that produce external effects by concretizing the content of Treaty provisions or legislative acts and defining the criteria for the regulation of specific cases. Formally,

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

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 bodys 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 Council and Gauweiler v Deutscher Bundestag). The article traces the distinctions roots in legal conceptions that have shaped legal-administrative thinking since the early days of the Etat de Droit or Rechstaat. It proposes a public-interest-regarding conception of discretion where, in an institutional context where courts’ reviewing role may be limited, discretions 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 how courts may review an exercise of discretion.

The democratic foundations of the Union: representative democracy, complementarity and the legal challenge of Article 11 TEU

Democracy is, to a certain extent, a counter-intuitive principle in the context of European integration. From the outset, European integration has been an elite-driven process, and only since 1992 has the public debate on the democratic legitimacy of the Union gained clear prominence. However, legitimacy, including democratic legitimacy, has been a longstanding concern, also for the Communities that preceded the Union. The authority of the institutions carrying forth the project of European integration – anchored to a large extent in the limitation of the sovereignty of Member States and shaping the legal sphere of their nationals – ought to be underpinned by specific sources of legitimacy. Analogies with sources of legitimacy of public authority within the state were of limited use. True, the democratic structures that have developed within the state remained an unavoidable and influential reference. But such analogies also led to the inevitable verification of a ‘gap […] between the democratic foundations of the Member States and the reality of [the Union]’ that ‘allow[ed] all contestation’. If we are to claim some form of democratic legitimacy underpinning the powers the EU institutions exercise under the Treaties, what are and what can be its sources? This question has been at the core of the debate on the democratic credentials of the Union. At the Treaty level, the principle of democracy was enshrined by the Treaty of Maastricht.

Mark Dawson, "New Governance and the Transformation of European Law - Coordinating EU Social law and Policy"

Mark Dawson’s book is an innovative approach to the relationship between law and governance in EU integration. It analyses their current relationships – id est how they have evolved, how they are shaped, how they can be interpreted – and provides a basis for future research and reform, built on the identifi cation of current pitfalls. Th ese are the stated goals of the book,1 which the author fully achieves. Th ere is a wide and disparate literature that has dealt with new modes of governance in the EU from various theoretical and normative perspectives. For this reason, the author anticipates the reader’s question: why another analysis of new governance? To answer this question, Dawson separates the existing literature into two waves and proposes ‘an aspirant third wave,’2 which he delineates and where he places his book. Th e third wave the author proposes arises from the confi rmation of the insuffi ciencies of the fi rst two waves. In contrast with the fi rst one, the third wave is distinctively inductive (built on empirical analysis), critical, insofar as it is conscious of the biases inherent to the concepts of new governance, and reform oriented. Th e third wave is therefore presented as qualitatively diff erent from the approaches of the fi rst two waves, to the extent that one wonders whether still considering it a ‘wave’ is not giving in too much to the clarity of the ‘stylised account’3 of the literature. Th is introductory analysis is, in any event, a very useful tool for those who, not being engaged in this literature, are nevertheless interested in understanding the signifi cance of this ‘movement’. More importantly, it contextualizes the distinctive features of the book. I would point out three: fi rst, the author’s analysis of the theoretical implications of new governance on the nature of law in complex polities, which builds on legal theory debates and is coupled with a deep empirical knowledge and sensitivity to the reality of OMC – the focus of the book; second, the approach to new governance and to the OMC as part of the deeper ‘procedural’ transformation of EU law; third, a lawyer’s view over new governance processes, which is sensitive to the need to protect and reintegrate their political dimension. Th e focus on OMC processes is justifi ed by the very salience of OMC processes in this ‘governance movement’, but ought perhaps to have been explicitly spelt out. Indeed, as the author highlights: ‘the phrase “‘new modes of governance” already lumps together too much, confl ating processes that carry quite diff erent features, and operate in diff erent fi elds’.4 ‘Methods like OMC’ – an expression the author oft en uses