Bounded Discretion in EU Law: A Limited Judicial Paradigm in a Changing EU

Against the background of the reinforcement of the EU executive pursuant to the post-2008 economic and financial market regulatory reforms, this article deconstructs the prevailing distinction between an executive body’s discretion to make policy choices and its discretion when conducting technical assessments. This distinction, which arises out of the current judicial paradigm for discretion, has contributed to the re-allocation of executive authority within the EU (sanctioned in UK v Parliament and Gauweiler). The article traces the distinction’s roots in legal conceptions that have shaped legal-administrative thinking since the early days of the Etat de Droit or Rechtsstaat. It proposes a public-interest-regarding conception of discretion where, in an institutional context in which courts’ reviewing role may be limited, discretion’s relationship to law is 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 an exercise of discretion