Abstract

Discretionary Powers for National Authorities within EU Directives

The Interpretation of Implementation Standards in Directives using the Example of Art. 24 Para. 1 2008/50/EC (Air Quality Directive)

Harmonisation by means of directives can happen in many ways. In administrative law a considerable number of directives uses provisions which strongly resemble national provisions on discretionary powers. Examples are Art. 24 para. 1 of the Air Quality Directive 2008/50/EC (“Member States may, where appropriate, draw up such short-term action plans”), Art. 8 para. 1 of the Environmental Noise Directive (2002/49/EC) or Art. 4 para. 2 of the Environmental Impact Assessment Directive (2011/92/EU). This article asks in what way such provisions must be interpreted by the national legislators and what the consequences of a transposition by a provision on discretionary powers are.

As the EU is not competent to confer discretionary powers directly upon the national authorities (this would require an EU regulation), the national legislator has to interpret the European standard as to whether it is a minimum harmonisation clause or whether it gives the Member States leeway when transposing the directive. In the latter case, the provision can on the one hand require the legislator to introduce a provision on administrative discretionary powers into the national law and therefore leave the actual decision to the national administration. This is the case when the idea is that the goal of the directive can be best reached by a case-to-case evaluation of the most expert authority. On the other hand, the provision can be interpreted to leave wide discretion to the transposing legislator. Consequently, the legislator can concretize the provisions in the directive by legislative means and can therefore reduce the margin of discretion for the national authorities.

If the directive is transposed by a provision on discretionary powers, the application of those provisions is subject to the pertinent national law (i.e. national rules on judicial review, remedies and unlawful use of discretionary powers). However, EU law, especially goals and guidelines within the directive, applies as overriding guiding principles for the national authorities when executing their discretionary powers. This means that the individual must be enabled to take legal action when the national authority disregards in its discretionary decision individual rights conferred upon him by the directive.