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At the Nice summit in December 2000, we witnessed the solemn proclamation of the Charter of Fundamental Rights of the European Union, which can be seen as the remarkable product of a revolutionary process. The Convention that drafted the Charter had adopted the approach ‘as if’ it were to be incorporated into the European Treaties. However, the question as to the final status of the Charter had not yet been decided when it was proclaimed. Instead, the issue was placed on the post-Nice and post-Laeken agenda and is currently being discussed in the Convention on the future of Europe.

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.

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