In line with current tendencies of ‘new modes of governance’, this essay introduces judicial tools, which strike a balance between the respect for national autonomy in individual assessments and the effective implementation of Community law. The balance is struck through the demands of structural guarantees; administrative safeguards, which weed out arbitrary national decision-making. These administrative safeguards are particularly needed in areas where the Member States of the EU have been granted a wide margin of discretion.

Examples of demands for structural guarantees are the provision of transparent and accessible legislation and administrative procedures based on objective criteria, as well as the access to effective judicial review. Together, they create a system of checks to prevent the discretion from turning into arbitrariness. All of these demands are ultimately emanating from the principle of rule of law, on which the European Community is said to be founded.

The existence of the demands for structural guarantees, unfortunately constituting somewhat of an elusive ‘non-concept’ in legal doctrine, is firmly established in this essay – through a study of their nature, as well as their functioning. The use of structural guarantees, as a tool of judicial review, is legitimised through their umbilical cord to the rule of law. Different emanations of the rule of law; exemplified by the principle of equality, effectiveness, as well as other general principles of Community law (GPCL), are presented to give a comprehensive overview of the substantive content of the structural guarantees. As the function of the structural guaranteesrequirements in a judicial review is, inevitably, linked to that of GPCL in general, the latter is used as a starting-point for the examination of the function of structural guarantees. The case-law of the ECJ has been researched to provide a cross-section of relevant examples of how the structural guarantees work as a judicial tool, in practice. To conclude the probe into the specific function of structural guarantees, the particular importance of this judicial tool, in cases of high Member State discretion, is accentuated.

To further exemplify the introduction of structural guarantees, by the ECJ, the developments concerning compensation of services of general economic interest (SGEIs) are presented. The focal point being the structural demands of the Altmark case, which are, subsequently, examined and analysed against the intended function of structural guarantees.