Discretion in EU Directives: Enhancing Political Legitimacy within the Eu's Multi-Level Legal System

38 Pages Posted: 1 Oct 2013

See all articles by Josephine Hartmann

Josephine Hartmann

Leiden University - Leiden Law School

Date Written: September 1, 2012


The effects of discretion on national implementation of European (EU) directives are a recurrent issue in implementation studies but opinions on discretion’s impact differ. Discretion is found to delay but also to contribute to successful implementation; it is found to play an important but then also a less important role in affecting Member State compliance. Remarkably, given the EU’s purported democratic deficit, discretion effects have hardly ever been linked to the legitimacy of EU directives. This paper intends to address this gap by choosing an approach across disciplines. Its main argument is that discretion provided by EU directives, referred to as legislative discretion, can be conducive to lawmaking and implementation and be beneficial for the legitimacy of these directives within Member States. First, the paper discusses the discourses on discretion in legal and political theory. Both disciplines approach discretion differently and provide relevant insights for the study of discretion and legitimacy in the context of EU lawmaking and national implementation. In a second step, these insights are linked up with the line of reasoning regarding the relationship between discretion and legitimacy. By using the concept of input and output legitimacy it is argued that discretion can, as it facilitates lawmaking and implementation, contribute to producing legitimacy within the EU’s multi-level legal system. As directives, and especially those with higher margins of discretion, represent the starting point for analysis, suggestions on how to detect and assess instances of discretion are made in the final part.

Keywords: Legislative discretion, executive discretion, legal discourse, political science discourse, legitimacy, European Union, decision-making, directive implementation

JEL Classification: D78

Suggested Citation

Hartmann, Josephine, Discretion in EU Directives: Enhancing Political Legitimacy within the Eu's Multi-Level Legal System (September 1, 2012). Available at SSRN: https://ssrn.com/abstract=2328673 or http://dx.doi.org/10.2139/ssrn.2328673

Josephine Hartmann (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA

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