CLP - The EU and the Administration’s Unattainable Subordination to the Law

Speaker: Dr Joana Mendes (University of Luxembourg)

Chair: TBC

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.

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.

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