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

Abstract

The liberal democratic ideal that public law can keep the exercise of public power within reviewable bounds and that administrative powers are necessarily subordinated to the law has been, in the EU and elsewhere, an important condition supporting the legal and political legitimacy of public power—an antidote to the authoritarian tendencies of administrations. In the EU, it has turned the Court of Justice, qua ultimate arbiter of EU law, into a pillar of integration. This perspective, however, ignores that some of the regulated activities can hardly operate under such subordination. The difficulties of judicial review in the face of technically complex and future-oriented regulatory activities, carried out under conditions of uncertainty, and having political implications, turn these challenges to the law into a matter of articulating a role for judicial review that could still provide an effective check on public power. But this discussion misses an important underlying difficulty: often, legal norms simply do not provide grounds for review that are external to the administrative activity that they are meant to constrain. In such circumstances, administrations acquire constitutive powers, determining the meaning of the law that binds them and defining the public interests that they are bound to pursue. Courts can hardly constrain such powers. In this article, I analyse such instances in the areas of EU bank resolution and pesticide authorization. Although this is not an EU law-specific problem, it has specific implications in a polity where public authority asserts itself as being fundamentally dependent on the law.