Law, Public Interest and Interpretation: Prolegomena of a Normative Framework on Administrative Discretion in the EU

It is conventionally assumed that administrative discretionary decisions are determined by political and expert-driven considerations and that law’s structuring and constraining capacity in that regard is and should be limited. Law defines a space within which discretionary choices are irrelevant to law because they have the same legal value. These tenets have shaped both the ways the Court of Justice of the European Union has approached judicial review of discretion and, more generally, the way law is perceived to structure administrative discretion in the Member States and also in the EU. However, the recent expansion of the regulatory powers of the European Union justifies revisiting these basic axioms. In particular, how far should discretion be shielded from the values that EU law conveys? This paper proposes a normative elaboration of a core idea of public law to stress that law twins administrative discretion with a duty of regard to pre-determined public interests. On this basis, legal rules are able to provide a yardstick of critique of decisions that administrative officials adopt within spaces of discretion. An analysis of the Meroni judgment shows how this argument applies to EU law. But this claim only prepares the ground for a more complex inquiry: How does law operate – and how should it operate – within the spaces of administrative discretion, and how should courts review discretionary decisions? Administrative decision-makers construct the law in a specific institutional context in view of their specific tasks. Arguably, one should understand the specific processes through which they interpret the law to know how law may provide substantive criteria that guide discretionary choices. Such understanding would also be the basis to define and assess suitable degrees of judicial review of administrative discretion. One could then make a critical assessment – difficult to make at present – of the shifting boundaries between spaces of discretion and of judicial review that the dictum “manifest error of assessment, misuse of power or excess of power” conceals. This latter argument draws on the debate among US administrative law scholars on agency interpretation of statutes, but it is also mindful of conceptual distinctions that have prevailed in legal scholarship in Europe. The paper defines the prolegomena of a normative framework of a broader research project. It is work in progress