Differentiation through flexibility in implementation: Strategic and substantive uses of discretion in EU directives
| Author | Robert Zbiral,Sebastiaan Princen,Hubert Smekal |
| DOI | http://doi.org/10.1177/14651165221126072 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Differentiation through
flexibility in
implementation: Strategic
and substantive uses of
discretion in EU directives
Robert Zbiral
Department of Constitutional Law and Political Science, Faculty
of Law, Masaryk University, Brno, Czech Republic
Sebastiaan Princen
School of Governance, Faculty of Law, Economics and
Governance, Utrecht University, The Netherlands
Hubert Smekal
School of Law and Criminology, Faculty of Social Sciences,
Maynooth University, Kildare, Ireland
Abstract
This article analyses the extent to which European Union (EU) directives allow for vari-
ation 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 situa-
tions in which each is most likely to be used are distinct because they approach the
divergences between member states differently.
Corresponding author:
Robert Zbíral, Department of Constitutional Law and Political Science, Faculty of Law, Masaryk University,
Vev eří 158, Brno, 611 80, Czech Republic.
Email: robert.zbiral@law.muni.cz
Article
European Union Politics
2023, Vol. 24(1) 102–120
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14651165221126072
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Keywords
Differentiated integration, discretion, EU directives, European Union, flexibility
Flexibility in European Union (EU) law
In recent decades, differentiation has become one of the key issues in debates on the
future of the EU. With a growing and more diverse membership, differentiation in EU
law and policies has been put forward as a way to cope with the increasing heterogeneity
among member states. In these debates, most attention has gone to forms of differentiated
integration (DI). DI occurs when only a part of all member states participate in an
EU-level policy arrangement (Dyson and Sepos, 2010: 4; Leuffen et al., 2013: 17; see
also the discussion by Schimmelfennig et al., 2023, in the introduction to this special
issue). This may relate to a specific integration project (such as the Eurozone or
Schengen) or to a single legal instrument, and may take shape through opt-outs for spe-
cific member states (Adler-Nissen, 2011; Winzen, 2016) or the participation of only part
of the member states in forms of ‘enhanced cooperation’(Kroll and Leuffen, 2015). All
these forms of DI are tied to the adoption of EU law: in the establishment of a (set of) EU
legal instrument(s), some member states are excluded from its scope.
In addition to DI, differentiation may also take place in the implementation of EU law.
EU law often leaves room for member states to make their own choices, for instance, by
allowing member states to decide on the scope of application of a specific provision or on
the adoption of more stringent standards. This is clearest in the case of directives that
unify legislation across the EU but leave the different member states some discretion
in choosing means and instruments, hence mediating between unity and diversity
(Haverland et al., 2011: 265–266). This leads to forms of flexibility, which allows
member states to implement EU law differently. If this flexibility leads to differences
in implementation practices between member states, it results in patterns of what has
been called ‘differentiated implementation’(cf. Fink and Ruffing, 2017).
DI and flexibility may serve largely the same purposes: by differentiating between
member states, they can be used to accommodate heterogeneity within the EU and to
ensure a closer fit between member state preferences and EU policies (see also
Schimmelfennig et al., 2023). In addition, they give rise to many of the same concerns,
as both DI and flexibility may lead to fragmentation and allow for shirking and cherry-
picking by member states. Although DI and flexibility both enable differentiation
among member states, their approach is distinct. Whereas under DI some member
states are excluded from a part of EU law altogether, under flexibility all member
states are subject to the same legal norms but have discretion to make choices within
the limits set by those norms. As a result, DI and flexibility strike different balances
between EU-wide harmonisation on the one hand and member state freedom to man-
oeuvre on the other.
It is therefore important to understand better under what conditions EU directives offer
flexibility in implementation. Directives do this by including provisions that offer discre-
tion (which we define as the explicit authorisation to make choices in transposing,
Zbiral et al. 103
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