EU Executive Discretion and the Limits of Law

ISBN : 9780198826668

Joana Mendes
288 ページ
156 x 234 mm

The increase in the European Union's executive powers in the areas of economic and financial governance has thrown into sharp relief the challenges of EU law in constituting, framing, and constraining the decision-making processes and political choices that have hitherto supported European integration. The constitutional implications of crisis-induced transformations have been much debated but have largely overlooked the tension between law and discretion that the post-2010 reforms have brought to the fore. This book focuses on this tension and explores the ways in which legal norms may (or may not) constrain and structure the discretion of the EU executive. The developments in the EU's post-crisis financial and economic governance act as a reference point from which to analyze the normative problems pertaining to the law's relationship to the exercise of discretion. Structured in three parts, the book starts by analyzing the challenges to the maxim that the law both grounds and constrains EU executive and administrative discretion, setting out the concepts, problems and approaches to the relation between law and discretion both in general public law and in EU law. It progresses to analyze how these problems and approaches have unfolded in EU's financial, economic and monetary governance. Finally, it moves on from these specific developments to assess how existing legal principles and means of judicial review contribute to ensuring the rationality and legality of EU's discretionary powers.


Part One: EU Law and Executive Discretion - Concepts, Problems and Approaches
1 Joana Mendes: Executive Discretion in the EU: Between National Traditions and EU Law
2 Bernardo Mattarella: Law and Discretion: A Public Law Perspective on the EU
3 Takis Tridimas: Indeterminacy, Legal Uncertainty, and Discretion in EU Law
4 Mark Dawson: How Can EU Law Contain Executive Discretion?
Part Two: EU Law and Executive Discretion in Financial, Economic, and Monetary Governance
5 Niamh Moloney: The European Supervisory Authorities Beyond Meroni
6 Paivi Leino & Tuomas Saarenheimo: Discretion, Economic Governance, and the (New) Political Commission
7 Vestert Borger: Central Bank Independence, Discretion, and Judicial Review
Part Three: EU Discretion, Rationality, and Legality - Legal Principles and Means of Review
8 Vasiliki Kosta: The Administrative-Legislative Divide in the Application of the Principle of Proportionality in EU Law
9 Herwig C.H. Hofmann: Interdependencies between Delegation, Discretion and the Duty of Care Regarding Facts
10 Hanns Peter Nehl: Judicial Review of Complex Socio-Economic, Technical, and Scientific Assessments
Part Four: EU, Discretion, and Public Law - Conclusion
11 Joana Mendes: Conclusion


Joana Mendes is Professor of Comparative Administrative Law at the University of Luxembourg, where she teaches comparative public law and EU law. A graduate from the University of Coimbra (Portugal), she has a doctorate from the European University Institute (Italy) and has held academic positions at the University of Amsterdam. She has been a Fulbright Visiting Scholar at Yale Law School and has been a guest lecturer in different institutions. Her academic work has focused on the exercise of public authority in the EU, drawing on comparative public law