A blessing in disguise?! Discretion in the context of EU decision-making, national transposition and legitimacy regarding EU directives

Abstract

This dissertation looks into the role of discretion granted by EU directives in EU legislative decision-making and national transposition processes. It applies a qualitative single country-study, focusing on the transposition of six directives in the Netherlands, from the policy areas of consumer protection, environment and justice and home affairs (migration). In the theoretical part the concept of discretion is explored, using insights from both the legal and political sciences. The empirical analysis then presents both EU and national processes regarding the six directives, addressed individually as well as in a comparative manner. This study contributes to clarifying the reasons and circumstances regarding the granting of different margins of discretion to Member States and the effects of discretion on EU negotiations and national transposition. It confirms that discretion can have facilitating and impeding effects on transposition, explains why, and identifies other factors affecting transposition by interacting with discretion. Additionally, a more fine-grained approach to measuring discretion is proposed than hitherto. Finally, but addressed separately from the empirical analysis, the link between discretion and legitimacy is elaborated. It is argued that discretion in national transposition processes can be used to enhance the directives’ input, throughput and output legitimacy within national law.