Structural guarantees - the Union's last best hope against national arbitrariness

In line with current tendencies of ‘new governance’, this article will introduce a novel judicial tool which strikes a balance between the respect for national assessments and the effective implementation of Union law. This balance can be struck through the demands of structural guarantees; administrative safeguards, which weed out arbitrary national decision-making. The provision of transparent and accessible legislation, administrative procedures based on objective criteria, as well as the access to effective judicial review are all specific examples of structural guarantees. Together they create a system of checks to prevent discretion from turning into arbitrariness. All of these demands are ultimately emanating from the
principle of the rule of law. They are not concerned with assessments of individual cases, but rather ensure the soundness of the legal system’s inbuilt administrative structures. Structural guarantees-requirements have proved to be a much needed complement to already existing legal tools of judicial review, such as that of proportionality. Such administrative safeguards are, as will be illustrated through the course of this article, particularly needed in areas where the Member States of the EU have been granted a wide margin of discretion.

Unfortunately, the structural guarantees have represented somewhat of an elusive ‘non-concept’. Through this article, I attempt to firmly establish the existence, nature and function of the demands for structural guarantees.