Differentiation through flexibility in implementation: Strategic and substantive uses of discretion in EU directives

Robert Zbiral*, Sebastiaan Princen, Hubert Smekal

*Corresponding author for this work

Research output: Contribution to journalArticleAcademicpeer-review

Abstract

This article analyses the extent to which European Union (EU) directives allow for variation in domestic implementation. Such flexibility in implementation may be used to deal with heterogeneity among member states. Based on an original dataset of 164 directives adopted between 2006 and 2015, we find that the use of flexibility is associated more with efforts to accommodate differences between national policies (substantive use of discretion) than with attempts to facilitate the decision-making process in and between EU legislative institutions (strategic use of discretion). Although flexibility may be used to address some of the same concerns that drive differentiated integration (DI), the situations in which each is most likely to be used are distinct because they approach the divergences between member states differently.

Original languageEnglish
Pages (from-to)102 - 120
Number of pages19
JournalEuropean Union Politics
Volume24
Issue number1
Early online date25 Sept 2022
DOIs
Publication statusPublished - Mar 2023

Bibliographical note

Funding Information:
Earlier drafts of this paper were presented at the InDivEU mid-term conference the 2020 UACES conference the 2021 ECPR Joint Sessions of Workshops and the 2021 ECPR General Conference. The authors would like to thank Markus Jachtenfuchs, Marta Migliorati, Bernard Steunenberg, Asya Zhelyazkova and other participants in these events for their valuable comments. The authors would also like to thank Martin Rosecký and Jakub Lysek for their statistical assistance. In addition they would like to thank Alex Hoppe, Michael Hübner and Ton van den Brink for their input and comments at various stages of the research process. Finally many thanks to Pavla Hosnedlová, Kamil Jaronczyk, Erwin de Pagter, Marek Pivoda and Sandra Zwick for their assistance in coding the directives for the dataset. The authors disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This project has received funding from the European Union's Horizon 2020 research and innovation programme under grant agreement No 822304 (Project InDivEU - Integrating Diversity in the European Union).

Funding Information:
The authors disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This project has received funding from the European Union's Horizon 2020 research and innovation programme under grant agreement No 822304 (Project InDivEU - Integrating Diversity in the European Union).

Publisher Copyright:
© The Author(s) 2022.

Funding

The authors disclosed receipt of the following financial support for the research, authorship and/or publication of this article: This project has received funding from the European Union's Horizon 2020 research and innovation programme under grant agreement No 822304 (Project InDivEU - Integrating Diversity in the European Union).

Keywords

  • Differentiated integration
  • discretion
  • EU directives
  • European Union
  • flexibility

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