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Discretion is not an easy concept, on which there is a considerable philosophical literature. The administrative law systems of the Member States have developed their own conceptions of discretion, as exemplified by the distinction drawn in French law between discretionary power and tied power. The discussion that follows does, however, not attempt to unravel the jurisprudential intricacies of discretion. Nor will it survey the diverse meanings accorded to the concept of discretion in the different legal systems of the Member States.
The approach adopted here is to begin with the case law of the Community courts and to identify the different senses in which discretion is employed within this jurisprudence. This has the advantage of focusing on the positive law of the EU that is most directly pertinent, while at the same time leaving room for more considered reflection about the use of the term discretion within that jurisprudence. It is clear that the Community courts have used the term discretion to cover a number of different situations. The relevant case law will be explored more fully below, but the different types of situation can be identified at this juncture.
The ECJ held that the Commission had a discretion, the exercise of which involved economic and social assessments that had to be made in a Community context. Article 34 EC stares that a common organization of agricultural markets shall be established, and in that sense imposes a mandatory duty. Article 34 EC further provides that the common organization is designed to attain the objectives set out in Article 33 EC. These objectives include an increase in agricultural productivity, a fair standard of living for the agricultural community, stable markets, availability of supplies, and fair prices consumers. The many detailed rules made pursuant to the common agricultural policy(CAP) are designed to attain these objectives within different agricultural sectors. It is, however, clear that the objectives in Article 33 that serve to guide the implementation of the common organization of markets are set out at a high level of generality and that there can be tensions between, for example, a fair standard of living for farmers and reasonable prices for consumers. What we have is an obligation to establish a common organization of agricultural markets, coupled with a broad range of objectives that are to inform the way in which this is done. It is therefore unsurprising that the Community courts have repeatedly held that the Commission and Council have discretion in balancing and determining the priority between theses objectives when making rules under the CAP, and in determining the best way that the overall objectives can be achieved.
This research is concerned with the development of a system of European Community administrative law. It focuses on the development of institutions for control of the administration; on principles of, and structures and processes for securing, accountability; and on the role and contribution of the courts, and of alternative methods of dispute resolution. What I hope in the end is, this research help koreans the discretion in the european administrative law to understand.
The approach adopted here is to begin with the case law of the Community courts and to identify the different senses in which discretion is employed within this jurisprudence. This has the advantage of focusing on the positive law of the EU that is most directly pertinent, while at the same time leaving room for more considered reflection about the use of the term discretion within that jurisprudence. It is clear that the Community courts have used the term discretion to cover a number of different situations. The relevant case law will be explored more fully below, but the different types of situation can be identified at this juncture.
The ECJ held that the Commission had a discretion, the exercise of which involved economic and social assessments that had to be made in a Community context. Article 34 EC stares that a common organization of agricultural markets shall be established, and in that sense imposes a mandatory duty. Article 34 EC further provides that the common organization is designed to attain the objectives set out in Article 33 EC. These objectives include an increase in agricultural productivity, a fair standard of living for the agricultural community, stable markets, availability of supplies, and fair prices consumers. The many detailed rules made pursuant to the common agricultural policy(CAP) are designed to attain these objectives within different agricultural sectors. It is, however, clear that the objectives in Article 33 that serve to guide the implementation of the common organization of markets are set out at a high level of generality and that there can be tensions between, for example, a fair standard of living for farmers and reasonable prices for consumers. What we have is an obligation to establish a common organization of agricultural markets, coupled with a broad range of objectives that are to inform the way in which this is done. It is therefore unsurprising that the Community courts have repeatedly held that the Commission and Council have discretion in balancing and determining the priority between theses objectives when making rules under the CAP, and in determining the best way that the overall objectives can be achieved.
This research is concerned with the development of a system of European Community administrative law. It focuses on the development of institutions for control of the administration; on principles of, and structures and processes for securing, accountability; and on the role and contribution of the courts, and of alternative methods of dispute resolution. What I hope in the end is, this research help koreans the discretion in the european administrative law to understand.
목차
Ⅰ. 들어가는 말
Ⅱ. EU에서의 행정, 행정법
Ⅲ. EU 행정법상 공동체기관의 재량
Ⅳ. EU 행정에 대한 사법심사
Ⅴ. 유럽법원의 판례를 통해 본 재량하자
Ⅵ. 맺음말
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UCI(KEPA) : I410-ECN-0101-2010-363-001995223