Discretion and EU obligations
Discretion and EU Obligations: Overview
Discretion refers to the margin of judgment or choice allowed to national authorities (including governments and administrative bodies) when implementing EU law. While EU law imposes obligations on member states, it sometimes allows flexibility in how these obligations are met.
The key question is:
To what extent can national authorities exercise discretion without breaching EU obligations?
Some EU rules are directly applicable (e.g., regulations) and leave no discretion.
Others (e.g., directives) give member states a margin of discretion regarding implementation.
Even in cases where discretion exists, it must be exercised in compliance with EU law principles, such as effectiveness, non-discrimination, proportionality, and good faith.
Key Principles
Limited discretion: Member states can only exercise discretion where EU law allows.
No abuse of discretion: Discretion must not be exercised arbitrarily or to undermine EU law objectives.
Judicial review: Courts (both national and the ECJ) can review whether discretion was lawfully exercised.
Case Law Illustrating Discretion and EU Obligations
1. Cassis de Dijon (Case 120/78)
Facts: Germany tried to restrict the import of French Cassis de Dijon liquor based on minimum alcohol content rules.
Ruling: The ECJ held that while member states have some discretion to regulate, such discretion is limited by the principle of mutual recognition and the need to avoid unjustified restrictions on free movement of goods.
Relevance: This case shows that discretion in applying national rules must align with EU objectives, here the free movement of goods.
2. Berger (Case C-312/93)
Facts: Concerned the calculation of social security benefits and whether national authorities had discretion in applying EU regulations.
Ruling: The ECJ acknowledged some discretion in national procedures but insisted that such discretion must not undermine the uniform application of EU social security coordination rules.
Relevance: Discretion must be exercised without conflicting with EU obligations.
3. R (on the application of Miller) v. Secretary of State for Exiting the European Union (UK Supreme Court, 2017)
Though not an ECJ case, this UK Supreme Court judgment is relevant in understanding discretion:
Facts: The government sought to trigger Article 50 TEU (Brexit notification) by executive decision.
Ruling: The court held that the government’s discretion was limited by constitutional principles and legal obligations.
Relevance: Highlights that discretion is not absolute and must respect legal frameworks including EU obligations.
4. Commission v. Italy (Case C-336/96)
Facts: Italy was accused of failing to correctly implement environmental EU directives, allegedly exercising excessive discretion.
Ruling: The ECJ held that while member states have discretion in how they implement directives, failure to implement or inappropriate use of discretion can breach EU law.
Relevance: Member states’ discretion cannot be used as a justification for non-compliance.
5. Kücükdeveci v. Swedex GmbH & Co. KG (Case C-555/07)
Facts: National courts had some discretion in applying EU equal treatment principles to age discrimination law.
Ruling: The ECJ ruled that discretion must be exercised in conformity with the principle of non-discrimination and the fundamental rights guaranteed by the EU.
Relevance: Discretion is bounded by fundamental EU values.
6. R (HS2 Action Alliance Ltd) v. Secretary of State for Transport (Case C-411/17)
Facts: The UK government exercised discretion in environmental impact assessments.
Ruling: The ECJ stated that discretion under EU environmental law must comply with the principles of precaution and environmental protection, meaning discretion is constrained by substantive obligations.
Relevance: Shows the limits on discretion in fulfilling environmental obligations under EU law.
7. C-188/89 Foster v. British Gas plc
Facts: Concerned the scope of discretion of a public authority under EU law.
Ruling: ECJ held that discretion of public bodies must be exercised consistently with EU law obligations.
Relevance: Public authorities cannot use discretion to circumvent EU obligations.
Summary
EU obligations impose limits on national discretion.
Discretion exists only where explicitly or implicitly allowed by EU law.
Discretion must be exercised in good faith, respecting principles such as proportionality, non-discrimination, and effectiveness.
Failure to properly exercise discretion or abusing discretion can lead to infringement proceedings or annulment of national decisions.
National courts and the ECJ play a crucial role in reviewing the exercise of discretion.
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