Refining the Division of Competences in the EU: National Discretion in EU Legislation

Abstract

The understanding of how competences in the EU are divided are be enhanced by viewing how the EU legislature leaves policy discretion to the Member States (national discretion). The chapter includes, first, a typology of national discretion (minimum harmonization, elaboration discretion, 'scope' discretion). Next, it relates national discretion to constitutional aspects (the legitimacy paradox it gives rise to, the relation to the subsidiarity and proportionality principles and differentiated integration. Third, it evaluates the benefits of including national discretion in the discourse on EU competences but also a number of problems ('gold plating'; the problem of identifying national discretion; the role of the CJEU and implementing delays).