Hybrid | The EU and the Administration’s Unattainable Subordination to the Law

This lecture will be delivered by Joana Mendes, as part of the Current Legal Problems Lecture Series 2024-25

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Hybrid | The EU and the Administration’s Unattainable Subordination to the Law

28 Nov 2024, 18:00 – 19:00

UCL Faculty of Laws
United Kingdom

Speaker: Joana Mendes (University of Luxembourg)

Chair: Professor Niamh Moloney

About the lecture

The liberal democratic ideal that public law can keep within reviewable bounds the exercise of public power and that administrative powers are necessarily subordinated to the law has been, in the EU and elsewhere, an important condition of the legal and political legitimacy of the exercise of public power, an antidote to the authoritarian connotations of administrations. In the EU, it has turned the Court of Justice into a pillar of integration, as the ultimate arbiter of its law. This perspective, however, ignores that administrations can be constitutive of legal regimes that delimit their mandates by reference to the pursuance of public interests. Administrations can create their own powers while exercising their attributed competences: in given circunstances, they get to interpret key legal norms and they give content to the public interests that they were set up to pursue. In these cases, courts do not control administrative powers, they enable them. Control would mean disrupting the administrative system that supports the functions that administrations must fulfil in contemporary societies, in which they are deeply imbricated. This is not an anomaly, but a feature of those functions, which public law must accommodate.

In this lecture, Joana Mendes will argue that a more realistic understanding of the relationship between law and administrative power, commensurate with the constitutive role of administrations, requires us to abandon the assumption that legal norms establish material (and judicially ascertainable) limits to administrative action when they enable administrations, for example, to prohibit mergers that constitute a “significant impediment to effective competition” (CJEU judgment CK Telecoms on mergers, 2023), to take the necessary and suitable actions to secure “price stability” (Gauweiler, 2014, and Weiss, 2019, on the legal boundaries of monetary policy) or “financial stability” (Fundación Tatiana Perez, 2024, on the delegation of powers to EU agencies), or to authorise pesticides because they do not have “undesirable effects to the environment”. I will foreground the role of public administration in EU integration as a continuation of the political role that administrations have in contemporary societies and the ensuing tensions with liberal constitutional premise of subordination to legal norms and judicial control.

Watch the video directly on our YouTube Channel or view it below

Joana Mendes is Professor of Comparative Administrative Law since 2016, where she teaches courses in Comparative Administrative Law and EU Law. She graduated in law and obtained a master’s degree in public law (2002) at the University of Coimbra (Portugal). She has a doctor degree from the European University Institute (Italy), awarded in 2009. Before joining the University of Luxembourg, she worked at the University of Amsterdam (2009-2016), where she was Associate Professor at the Department of International and EU Law and PhD Dean. She was awarded an individual research grant (VENI) by The Netherlands Organisation for Scientific Research (NWO), between 2013 and 2016 on a project on “Unveiling EU Administrative Discretion: The Role of Law and Good Administration”.

She has been a Fulbright Visiting Scholar at Yale Law School (2014), and has taught as a guest lecturer at the University of Coimbra, the European University Institute, the LUISS Guido Carli School of Government, and the Legal and Judicial Training Centre of Macao. She is member of the editorial board of the , of the Steering Committee of ReNEUAL (Research Network of European Administrative Law) and an elected member of the Council of the International Society of Public Law (ICON.S). She has been co-editor-in-chief of the between 2018 and 2020 (with Harm Schepel). German Law Journal European Law Journal

Since 2018, she is the coordinator of the doctoral research programme on (DTU-REMS-II), a research programme encompassing 16 PhD researchers and funded by the Luxembourg National Research Fund (FNR), and, since 2020, Head of the Doctoral School in Law of the University of Luxembourg. Enforcement in Multilevel Regulatory Systems

Her publications include (OUP, 2011), (Hart, 2018, co-edited with Ingo Venzke), (OUP, 2019, edited book), and articles published in the , the , the and the . Participation in EU Rulemaking. A Rights-based Approach Allocating Authority: Who Should Do What in European and International Law? EU Executive Discretion and the Limits of Law Common Market Law Review European Law Journal Modern Law Review International Journal of Constitutional Law

Joana Mendes is Professor of Comparative and Administrative Law at the University of Luxembourg since 2016, where she teaches courses in Comparative Administrative Law and EU Law. She graduated in law and obtained a master’s degree in public law at the University of Coimbra (Portugal). She has a doctor degree from the European University Institute (Italy). Before joining the University of Luxembourg, she worked at the University of Amsterdam, where she was Associate Professor at the Department of International and EU Law and PhD Dean. She has been a Fulbright Visiting Scholar at Yale Law School (2014). She has also taught as a guest lecturer at the University of Coimbra, the European University Institute, the LUISS Carlo Guidi School of Government (summer school), and at the Legal and Judicial Training Centre of Macao. She is co-founder of European Law Open and was previously co-editor of the European Law Journal. She is a member of the editorial board of the German Law Journal, of the Steering Committee of ReNEUAL (Research Network of European Administrative Law) and was member of the Council of the International Society of Public Law between 2017 and 2022.

The Current Legal Problems (CLP) lecture series and annual volume was established over fifty five years ago at the Faculty of Laws, University College London and is recognised as a major reference point for legal scholarship.

You can attend this event in-person at UCL Faculty of Laws (Bentham House, 4-8 Endsleigh Gardens, London WC1H 0EG) or alternatively you can join via a live stream.

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