The Netherlands gets a rap on the knuckles from the European Commission. This heading in a Dutch newspaper recently caught my attention. It refers to the delay by the Netherlands of more than six months in transposing Directive 2010/63/EU on the protection of animals used for scientific purposes, in short: the Scientific Animal Protection Directive. Analysing national implementation processes and the role of legislative discretion therein, the immediate question for me was: Did legislative discretion contribute to a decrease in the Directive’s legitimacy at the national level, understood here as Dutch non-compliance with it? After all, in implementation studies it is frequently argued that discretion - the (implementation) leeway granted to Member States by the content and wording of directives - is one of the factors causing delayed transposition. And yet, the effects of discretion cannot simply be labelled as ‘bad’. In my last contribution I argued that legislative discretion appears to be a double-edged sword. Empirical evidence shows that it can have facilitating effects in the case of directive x whereas in the case of directive y it can impede national implementation. Key aspects that I mentioned back then seem to apply here as well, suggesting that the example of the Scientific Animal Protection Directive lends some empirical support to this assumption. Besides, it adds new relevant aspects shedding more light on legislative discretion and its effects on the preparation and implementation of European directives. Knowing that other factors were also at play, the focus here, however, is on legislative discretion.
The protection of animals with regard to their use for scientific purposes is not new on the EU’s regulation agenda but was already the subject of a directive in 1986. The Scientific Animal Protection Directive is an update of this and aims to “ strengthen legislation and improve the welfare of those animals still needed to be used, as well as to firmly anchor the principle of the three Rs, to Replace, Reduce and Refine the use of animals, EU legislation”.
Legislative discretion in EU negotiations
Legislative discretion takes various forms in the Directive. As a minimum harmonisation requirement, as mentioned in article 2.1, it had a facilitating impact on EU negotiations. Permitting Member States to keep their national legal standards, whether high or low, contributed to reaching compromise and mutual consent on a widely considered sensitive political issue. In the Netherlands a key concern was to maintain the traditionally high legal standards regarding the protection of great apes (chimpanzees, gorillas). On the other hand, maintaining their lower legal standards was crucial to Member States like Bulgaria and Romania, arguably to avoid costly adjustments and greater EU intervention into their own national legal practices.
Legislative discretion in national implementation
The definition of ‘project’ in article 3, ‘a program of work having a defined scientific objective and involving one or more procedures’ is one example where legislative discretion is provided through broad formulations. Granted, vagueness can, as experts also agree, contribute to smooth transposition if the flexibility in implementation it provides, fosters tailored-made rulemaking. In this case, however, it rather added to the generally poor legislative quality of the act. The definition of project, which is key here as authorisations by national competent authorities should be given to projects using animals in procedures, appeared to be so broad that it became the subject of diverse interpretations by stakeholders. Thus the question of what a project actually is, became a hotly debated issue, leading to lengthy discussions at the national level contributing to delayed transposition.
Discretion, a complex factor
What should be kept in mind from these brief remarks? Different effects can emanate from the diverse forms in which legislative discretion appears in one and the same directive. Minimum harmonisation facilitated negotiations in assuring Member States that their national legal order would largely be left untouched. Broad formulation, on the contrary, did not contribute to a smooth transposition but was an obstacle to it. Thus the picture of legislative discretion is more complex than an-either-or-story may suggest ascribing to it exclusively positive or negative effects regarding the preparation and especially the transposition of one directive. What’s more, discretion is context dependent; how it plays out may be influenced by other factors such as administrative capacity or the participation of relevant third parties. Regarding the latter, involving stakeholders at the negotiation stage in order to reach agreement on specific ranges of meanings to be ascribed to key terms used in the directive - without necessarily curtailing discretion - might have contributed to a better legislative quality of the act, reducing the likelihood of vagueness and thus difficulties in interpretation and application. It is plausible to assume that this could have strengthened the legitimacy of its transposition at the national level as well. In the study of legislative discretion, the challenge still laying ahead is not to overlook its complexity but to explore it further.