Paper Titles & Abstracts

This paper investigates the role of discretion with regard to the lawmaking and implementation of EU directives. Implementation studies have identified discretion as one important factor impacting member states' application of EU law. Discretion has thereby mostly been addressed from either a law or political science perspective, its role hardly being investigated at both EU and national levels. A different approach is taken in this paper. To better grasp discretion - why is discretion incorporated into directives by the European legislator and how is it used by implementing actors - the preparation and implementation phases regarding two directives from the field of asylum and migration as well as environmental policy are analyzed. Moreover, an interdisciplinary approach is adopted connecting insights from the sociology of law and administrative law with insights from public administration and political science to analyze discretion. It is argued that the context and actor-centered approach, which is dominant in the social sciences, represents a valuable supplement to the legal analysis of the role of discretion in the making and implementation of EU law. Emphasizing the tension between discretion and rules characterizing legal theory, on the other hand, reveals that discretionary decision-making of implementing actors is beset with legitimacy problems due to lacking democratic control. This shows the conflicting nature of discretion. Whereas discretion can contribute to political support and informed decision-making at the EU level, discretionary decision-making for implementation can be problematic from the viewpoint of legitimacy. With its interdisciplinary perspective on discretion and case study approach this paper aims to contribute to a better understanding of EU legislative politics and national implementation dynamics as well as to link up the literature on implementation with the topical issue of the EU's purported democratic deficit.