Public interest threatened by European freedom of discretion

25 May 2016

How far does the power of the European Union extend? Recent rulings from the European Court of Justice approved extending the executive powers of the EU, including those of its official staff. However, it is not clear where the boundaries of this freedom lie exactly. Researcher Joana Mendes concludes that the Court of Justice dismisses the role of the law, which should bring structure to the ‘discretionary powers’ as the foundation of EU decisions. Her article ‘Discretion, care and public interests in the EU administration’ was published in the journal Common Market Law Review, with NWO funding from the Talent Scheme.

Statue of Lady FortunaPhoto: Shutterstock

Thanks to so-called discretionary powers, an administrative body has the freedom, to greater or lesser extent, to take a decision according to its own insight. In many countries, including the Netherlands, that is a normal state of affairs. For example, a mayor is authorised to act if the public order is threatened. However, it is for the mayor to decide when exactly this order is disrupted or threatens to be disrupted, and that is not stipulated in a legislative text.

Joana Mendes investigated this freedom of discretion at the European level. To this end, she used several examples of cases of official self-interest that the European Court of Justice has accurately investigated. ‘EU courts were found to have relegated the role of the law in the structures of powers so low that the public interest has become threatened. And this despite the fact that the public interest should be safeguarded on the basis of these legislative standards.’

Ombudsman and Court of Justice do not share common line

Mendes also discovered that the European Ombudsman had a different and normatively far more demanding insight into the control of discretionary powers and the position of the law in relation to this. The Ombudsman's assessment therefore differs from that of the Court of Justice with respect to this point.

Mendes: ‘In cases where EU judges considered independently taken administrative decisions more critically, they often let the legitimacy depend on arguments such as accuracy, reliability, consistency and completeness of the information collected. These are the aspects that executive bodies must demonstrate when performing their duties. The relationship with the law is then limited to matters that appear to be of a procedural nature and consequently, a useful measure of assessment is lacking.’

However, Mendes discovered that the European Ombudsman acted with more consideration for the investigative role. ‘When considering complaints, the Ombudsman also takes into account aspects such as a lack of objectivity and impartiality. In doing this, he illustrates a wider role of the law that is lacking at the European Court of Justice.’

Source: NWO