How much discretion is too much? Requisites and strategies for legal certainty in goal-based regulation

Recent shifts away from command-and-control regulation bring particular challenges for legal certainty. Indeed, replacing detailed rules with broader standards or goals is seen as a way to increase flexibility, but is also associated with potential uncertainty (Decker 2018; Ford 2008; Tanke 2011). This is because goal-based regulation is associated with textual imprecision; when a norm asks to take adequate measures to achieve a certain goal, for example, what measure are ‘adequate’? While there is some evidence that goal-based regulation indeed contains more of such imprecise terms than rule-based regulation (Herrebosch 2026), the question is whether this is also problematic; do these unclear terms also lead to a problematic loss of legal certainty? And if so, are there no strategies to amend these potential challenges? These questions will be the focus of this paper. It starts from an analysis of the jurisprudence of the ECHR and CJEU to investigate the conditions under which the design of regulation is problematic for legal certainty. Then, a regulatory technique analysis evaluates which strategies are used within the regulation – if any – to amend uncertainty. Finally, based on these two analyses, recommendations can be formulated about how legal norms that contain imprecise language can still be designed in a way that abides to these principles of good law-making. This is an important step in finding strategies to adequately balance calls for sufficient regulatory flexibility with concerns about legal certainty.