Statutory Discretion and Procedural Control of the European Commission’s Executive Functions

By delegating powers and designing administrative procedures, ministers of the Council, the legislators of the European Union, shape the boundaries of the EU administration. This article uses theories of executive politics to test the factors that affect the degree of statutory discretion delegated by the Council to the Commission in secondary legislation. It suggests that discretion increases with 1) the uncertainty facing legislators, 2) the convergence of preferences between the Commission and the pivotal legislator, 3) the use of qualified majority, and 4) policies that require limited involvement of national administrations. It also tests whether discretion is positively correlated with the stringency of procedural control. The article employs regression analysis and co-graduation tests on a sample of legislation and concludes that uncertainty, policy types and informal decision rules are statistically and substantively relevant in explaining discretion. Discretion is also significantly correlated with the stringency of control.