Constitutive Powers of Executive Bodies: a Functional Analysis of the Single Resolution Board

Abstract

AbstractExecutive bodies can acquire constitutive powers, even if subject to detailed substantive strictures. Constitutive powers give executive bodies the possibility to transform normative understandings of the meaning of norms and of the goals of public action into legal forms. These bodies thus engage in a jurisgenerative process that enables them to progressively delimit their legal mandates in reaction to socio‐economic and political realities. The article illustrates this argument by examining the power of the EU Single Resolution Board (SRB) to determine the resolution of a bank in crisis. It concludes that, in view of constitutive powers, the normative demands that the EU legal system places on executive and administrative bodies must be reconsidered. On that basis and to that effect, mechanisms of accountability should be reconceptualised and reoriented.