Legitimacy Research in Progress I: Josephine Hartmann
Josephine Hartmann is reaching the end of her PhD research at our Profile Area Political Legitimacy. She hopes to defend her dissertation in the summer of 2016 at Leiden University. Title: "A blessing in disguise…?! Discretion in the context of EU decision-making, national transposition and legitimacy regarding EU directive." We are proud to publish an abstract of her thesis.
For what reasons, under what circumstances and with what effects is discretion provided during the negotiations on EU directives and how does it affect the subsequent legal implementation at the national level, commonly known as transposition? And how does discretion relate to the legitimacy of EU directives within national law?
This dissertation project looks into these questions by applying a qualitative single country-study, focusing on the transposition of EU directives in the Netherlands, including six directives selected from three different policy areas (consumer protection, environment and justice and home affairs/migration). Combining insights from relevant sub-disciplines of law and political science/public administration, this study first explores the concept of legislative discretion in-depth, aiming to highlight discretion’s potentials for processes of law-making and implementation without, however, disregarding the downsides that have been ascribed to discretion, especially in the legal sciences.
Directives grant discretion by design (Article 288 Treaty on the Functioning of the European Union) and based on their content and wording (e.g. levels of harmonization; ‘may’ and ‘shall’ clauses). The analytical framework developed in the theoretical part of the dissertation is subsequently applied in the case study analyses, addressing the role of discretion in both EU- and national-level processes concerning the six directives chosen for further investigation. The directives’ discretion margins are determined by means of content analysis and application of a codebook. Furthermore, a comparative dimension is added to the empirical analysis to investigate the expectation that lower and higher discretion margins affect transposition differently.
All in all, this study confirms the mixed record that has been ascribed to discretion’s effects on national transposition - discretion can impede but also facilitate national transposition - while shedding light on the circumstances under which discretion unfolds impeding or facilitating effects, considering also different uses of discretion by transposition actors. Moreover, it predicts and shows empirically that discretion can be a decisive factor in EU negotiation processes on directives by facilitating compromise, adding to the EU’s capability of acting.
Next to the theoretical and empirical also a methodological contribution is made to the study of discretion: a more fine-grained approach to discretion in European directives is offered by addressing more discretion manifestations than so far identified in implementation studies.
Finally, but addressed separately from the empirical analysis, the link between discretion and legitimacy is elaborated. It is argued that discretion in national transposition processes can be used to enhance the directives’ input, throughput and output legitimacy within national law. In so doing, the dissertation additionally contributes to the discussion on proper ways of democratic decision-making related to directives. What’s more, by linking the two concepts of legitimacy and discretion, the dissertation’s subject matter also fits into the wider context of debates on the alleged democratic deficit of the European Union.
Dissertation title (provisional): "A blessing in disguise…?! Discretion in the context of EU decision-making, national transposition and legitimacy regarding EU directive."
PhD candidate: Josephine Marna-Rose Hartmann
Start of research: March 2011
PhD defense: expected in the summer of 2016
Supervisors: prof. dr. W.J.M. Voermans & prof. dr. B. Steunenberg