Mutations to the Rule of Law: the case of the reserve of administration for the purpose of the issue denominated "legislative vacation" (Judgment of the Court of Justice of the European Union of 3 December 2009, European Commission v Federal Republic of Germany, Case C-424/07)

Abstract

On the occasion of the dictation of the Judgment of the Court of Justice of the European Union in the matter called the "legislative vacation", some of the questions that it has raised in the doctrine are examined; notably, the theory of the reserve of Administration and administrative discretion. Finally, the author proposes that this ruling responds to a progressive constitutional mutation that has been taking place in the internal legal systems of the Member States as a result, in this case, of the transfer of competences to the European Union, which entails modifying –in the matters that have been intervened by said supranational instance– the role that the traditional conception assigns to the legislative power.