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The Binding Unity and Divergent Concepts in EU Law project sought to establish the scope of the phenomenon of ‘conceptual divergence’ by gathering data from the daily practice and personal experience of legal professionals involved in European law. This chapter presents an account of the response to a questionnaire: how conceptual divergence is detected, perceived, and dealt with in legal practice, and how it is evaluated in the long run. According to some respondents, conceptual divergence may occur in relation to concepts such as ne bis in idem, or ‘penalty’ and ‘sanction’ (terms that are used interchangeably in EU law, much to the confusion of Dutch lawyers to whom they mean different things). Others are ‘detention’, ‘confiscation’ (a term that in Dutch legal language triggers the question of whether it is to be translated as verbeurdverklaring or onttrekking aan het verkeer) and, again, the concept of ‘goods’.

This chapter examines the meaning of conceptual divergence as it applies to EU law. Conceptual divergence is considered to be sub-optimal when it comes to upholding the unity that each and every legal order claims in order to pose as binding upon its subjects. Prima facie reasons why the EU law appears to be jeopardized by conceptual divergence are discussed. An overview of the subsequent chapters is presented.

This chapter examines some of the main points and characteristics associated with discretion. In particular, it attempts to lay bare the relations of discretion with conceptual divergence and, ultimately, how this may relate to the attainment or stimulation of unity within a legal system. It argues that discretion is a concept that relates strongly to divergence, subsidiarity, and decentralization. It could therefore be held that the granting of discretion from above by the ECJ often involves the sustenance as well as the creation of divergence, in many cases for the sake of upholding the unity of the EU system.

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.