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

This dissertation looks into the role of discretion granted by EU directives (Article 288 Treaty on Functioning of the European Union) in legislative decision-making and national transposition processes of these directives.

Josephine Marna-Rose Hartmann
27 September 2016
Leiden University Repository

It applies a qualitative single country-study, which focuses on the transposition of six EU directives in the Netherlands, selected from the policy areas of consumer protection, environment and justice and home affairs (migration). In the theoretical part of the dissertation the concept of discretion is explored, using insights from strands of both legal studies and political science. This is followed by the empirical analysis presenting EU- and national-level processes regarding the six directives (Blue Card Directive, Pyrotechnic Articles Directive, Waste Framework Directive, Toy Safety Directive, Return Directive, and Stage II Petrol Vapour Recovery Directive) which are first addressed individually and then 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 both EU negotiation and national transposition processes. It confirms that discretion may have facilitating and impeding effects on transposition, explains why, and identifies other relevant factors that affect transposition by interacting with discretion (e.g. the compatibility between EU directive and national law). Additionally, by subjecting directives to content analysis, 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 looked into. It is argued that discretion can be used in national transposition processes to enhance the directives’ input, throughput and output legitimacy within national law. The book concludes by putting the outcomes of the analysis into perspective and by pointing out pathways for future research.

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