National Courts Implementing EU Law: Discretion as Means of Non-Compliance?

• Authors: PIVODA Marek
• Year of publication: 2020
• Type: Appeared in Conference without Proceedings
• Description: The research on the role of national courts in decentralized enforcement of EU law primarily concentrates on the preliminary reference procedure and more broadly, on the various forms of resistance against EU legal authorities. From an enforcement perspective non-implementation is more difficult to detect than non, partial, or incorrect transposition of directives by national parliaments. Similarly, it is more challenging to identify examples of national judiciaries’ pushback against EU law in cases in which national courts choose to apply or not to apply EU law without a reference to the CJEU than cases of open backlash. It has been suggested that different types of discretion may have facilitating and impeding effects on transposition of EU law by national parliaments. But is there a link between the discretion granted in the directives to the Member States and the manner of implementation by the national courts? This article inquires whether the discretions granted to the Member States in fact create wider opportunities for latent non-compliance on the successive layers of implementation beyond that controlled by national parliaments, i.e. that controlled by national courts. In other words, in aims to clarify the claim that diversity (based on the discretion) may have integrating effects among the Member States. The article is mainly of explorative nature: firstly, theoretical foundations of the link between discretion and non-implementation by national courts are presented; and secondly, the proposal of method for research is described in detail.