Introduction

Administrative rulemaking – which roughly speaking has the function of elaborating on legislation – is a typical feature of modern legal systems and associated with developments of the 20th century such as the rise of the regulatory state in Europe or the 1930s New Deal Policies in the United States. Being no new phenomena – though some would argue to the contrary – it yet seems to have an ever-growing share in contemporary lawmaking, reflected in the delegation of decision-making powers. Delegation is a typical feature of contemporary lawmaking which takes shape in a context of ‘multi-level jurisdictions’ or ‘multi-level governance ‘ involving various levels, settings and actors. The national administrative implementation of European Union (EU) directives is a case in point. Whereas directives are adopted at EU level, their implementation is largely delegated to national administrations but may also involve the European Commission . In this chapter national administrative implementation shall be addressed in more detail by paying special attention to one of its core features, discretion , granted by legislatures to those implementing the law.

The EU legislature may have sound reasons to delegate implementing powers, including discretion , to the Member States. But delegated implementation and executive legislation resulting from it, may also contribute to the EU's alleged democratic deficit. First, implementation involves decision-making on behalf of citizens by, however, non-elected law-making agents. Second, and resulting from the latter, the delegation of discretion is likely to contribute to the blurring of lines between the legislative and executive branches of government contravening the principle of separation of powers as a result. Viewed like this, discretion is seen as ‘not merely a question of administrative practice, but in essence [as] touch[ing] on a matter of principle, namely the inter-relationship which prevails among state-authorities’.

In this volume the principle of separation of powers is largely discussed in connection to Christoph Möller's interpretation of it. According to this reading, the particular relevance of the principle of separation of powers for modern states lies in the fact that it contributes to the exercise of legitimate public authority embodying both individual and collective self-determination. Resting on the idea of three governmental branches – the legislative, executive, and judicial branch – the principle of separation of powers establishes procedures that serve to iron out differences between both forms of self-determination.