Mapping the legal scope for flexible implementation in EU directives

Abstract

This paper analyses the extent to which EU directives allow for variation in the way that member states implement them. Such room for ‘flexible implementation’ may be used to overcome conflict during decision-making or to accommodate diversity in conditions within member states. The analysis is based on an original dataset of 164 directives adopted between 2006 and 2015, which are coded for the discretion they offer to member states. In addition to the overall level of discretion in directives, the paper also zooms in on five specific types of discretion. Based on these data, patterns of discretion across policy areas and different types of directives are explored.