Discretion, care and public interests in the EU administration: Probing the limits of law

Abstract

Recent high profile judgments of the European Court of Justice (ESMA and Gauweiler) have endorsed the expansion of the EU’s executive powers, including those of its administration. Once such powers are attributed or judicially endorsed, how far may law reach in structuring the exercise of discretion by EU administrative actors? The article analyses the way the EU courts have reviewed administrative discretion in instances where they have performed a close scrutiny thereof. It argues that the EU courts downplayed the role law ought to have in structuring the exercise of administrative discretion, by overlooking the public interests that ought to be pursued by force of legal norms. By contrast, the control of discretion by the European Ombudsman illustrates a different and normatively more demanding understanding of how law may operate in relation to discretion.