Discretion, Care and Public Interests in the EU Administration: Probing the Limits of Law

Recent high profile judgments of the European Court of Justice (ESMA
and Gauweiler) have endorsed the expansion of the EU’s executive
powers, including those 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 article analyses
the way the EU courts have reviewed administrative discretion in
instances where they have performed a close scrutiny thereof. It argues
that the EU courts downplayed 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.