Measuring actual discretion of the European Commission: Using the discretion index to guide empirical research

Abstract

One key question in the study of the European Union has always been the extent of Commission discretion. We take the discretion index, typically used by principal–agent scholars to measure the Commission's designed discretion, to measure its actual discretion. Commission designed discretion can today be computationally generated with sufficient accuracy across all secondary acts. The study of designed discretion thus reaches considerable maturity. Therefore, we argue that scholars should prioritize studying Commission actual discretion. We present a systematic and transparent investigative technique based on the discretion index, which we use as a roadmap to guide our empirical investigation. The index facilitates the accumulation of knowledge across policy areas and time by providing exact values for Commission discretion. We illustrate our approach with the Development Cooperation Instrument.

Differentiation through flexibility in implementation: Strategic and substantive uses of discretion in EU directives

“…The approach taken in the FIEU dataset builds on the work by Franchino (2007, see also 2001, 2004) on discretion in the EU (see also Gastinger and Heldt, 2022 for recent application of the approach on discretion granted to the Commission), which in turn is based on the framework developed by Epstein and O’Halloran (1999) in the context of the US federal government. The basic idea behind this approach is to determine whether individual provisions in a legislative act grant discretion to the member states or not.…”

Concepts and measures of bureaucratic constraints in European Union laws from hand‐coding to machine‐learning

“…Indeed, scholars have veered away from this measurement strategy. Gastinger and Heldt (2022) initially follow the approach of Epstein and O'Halloran (1999) and Franchino (2004, 2007) but then they “distinguish between ‘universal’ constraints affecting the act of delegation as a whole […] and ‘specific’ constraints tied to corresponding provisions delegating authority” (Gastinger & Heldt, 2022: 545). For instance, the development cooperation instrument established by Regulation 233/2014 terminates in 2020.…”