Recent high profile judgments of the Court of Justice of the European Union (ESMA and Gauweiler) have endorsed the expansion of the EU’s executive powers, including of its administration. Once such powers are attributed or judicially endorsed, how far may law reach in structuring the exercise of discretion by EU administrative actors? The chapter analyses the way the EU Courts have reviewed administrative discretion in instances where they have performed a close scrutiny thereof. It argues that such review downplays the role law ought to have in structuring the exercise of administrative discretion, by overlooking the public interests that ought to be pursued by force of legal norms. By contrast, the control of discretion by the European Ombudsman illustrates a different and normatively more demanding understanding of how law may operate in relation to discretion.
This chapter examines law's role in structuring administrative discretion in the EU. Based on a comparative analysis, it deconstructs a prevailing distinction between discretion to make policy choices and discretion in conducting technical assessments, which stems from a judicial paradigm of discretion. It proposes a public interest-regarding conception of discretion that, in an institutional context where courts may have a limited reviewing role, approaches law's relationship to discretion as a matter of how legal norms may operate in the spheres of discretion that they attribute to decision-makers, rather than as a matter of how courts may review discretion.