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The Coherence of EU LawThe Search for Unity in Divergent Concepts$
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Sacha Prechal and Bert van Roermund

Print publication date: 2008

Print ISBN-13: 9780199232468

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199232468.001.0001

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Discretion and Public Policy: Timing the Unity and Divergence of Legal Orders

Discretion and Public Policy: Timing the Unity and Divergence of Legal Orders

(p.291) 13 Discretion and Public Policy: Timing the Unity and Divergence of Legal Orders
The Coherence of EU Law

Hans Lindahl

Oxford University Press

This chapter views discretion not only as the scope of legal power, but also as power over the scope of the law. This sheds light on the process by which the EC and its Member States negotiate the unity and divergence of their respective legal orders in the context of the public policy exception. Section 2 considers the case law of the discretionary exercise of the public policy reserve to show that there is little hope of confirming the hypothesis of conceptual divergence. Drawing on Hans Kelsen's analysis of the indeterminacy of legal norms, Section 3 introduces the twofold sense of discretion. Section 4 situates discretion in a general theory of constituent and constituted power. Section 5 examines public policy in the light of this denser notion of discretion. Section 6 radicalizes the analysis of ‘playing for time’, suggesting that the negotiation of divergence does not merely take place in time but is also and perhaps primarily about the unity of time.

Keywords:   conceptual divergence, EU law, Grogan, Hans Kelsen, playing for time

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