Decoupling Superficial from Substantive …...! 2!...
Transcript of Decoupling Superficial from Substantive …...! 2!...
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Notified and Substantive Compliance in an Enlarged Europe. Evidence from
Two Policy Areas
(Work in progress; comments are welcome)1
Asya Zhelyazkova and Cansarp Kaya
Abstract
This paper presents first results from an ongoing research project on compliance
with EU policies in 27 member states. The project addresses current a debate in
the literature: whereas quantitative studies show that the “new” EU entrants
from Central and Eastern Europe (CEE) are the forerunners in the legal
incorporation of EU directives into national law (Knill and Tosun, 2009;
Sedelmeier, 2008), detailed case studies indicate the existence of a gap between
legal and practical compliance with the EU rules (Falkner et al., 2008). The
project aims to reconcile these divergent findings by comparing the performance
of different EU member states regarding different forms of compliance: timely
notification, correct legal and practical implementation.
In this paper we address the following questions: Do we observe systematic
variation in compliance (a) between different EU member states, (b) between
different forms of compliance such as timely notification, correct transposition
and practical implementation? What factors account for variation in compliance
across different forms of compliance?
The presented findings are based on a dataset on member states’ notified and
substantive compliance (both legal and practical) with 20 directives from two
policy areas: Internal Market and Services (10 directives) and Justice and Home
affairs (10 directives). The preliminary results show that patterns of timely
notification are not systematically related to the correctness and the application
of domestic laws relative to the EU requirements.
1 Address for correspondence: [email protected]
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Introduction
The success of the European integration project does not only depend on the
adoption of common European policy and the Union’s expansion of its
membership. The effectiveness of European integration is also conditional on the
extent to which the EU policies are incorporated and applied by the EU member
states. Therefore, it is surprising that ten years after the major enlargement of
the Union to include eight new member states from Central and Eastern Europe
(CEE) (followed by Bulgaria and Romania in 2007 and Croatia in 2013), there is
little knowledge about member states’ implementation performance in an
enlarged Europe.
Furthermore, whereas research on implementation prior enlargement is
abundant, quantitative studies use rather imperfect proxies to describe and
explain existing patterns of compliance with the EU rules. For, example, many
studies use infringement proceedings initiated by the EU Commission against a
member state as a formal indicator for non-‐compliance (Mbaye, 2001; Perkins
and Neumayer, 2007). Infringement proceedings, however, refer to cases that
are both detected by the Commission and on which the Commission decides to
take an action. There may be many other cases of non-‐compliance that do not
show up in data on infringement proceedings (Hartlapp and Falkner, 2009).
Other studies use delays in the legal incorporation (also referred to as
transposition) of EU directives as an indicator for non-‐compliance (Mastenbroek,
2003; Kaeding, 2008; König and Luetgert, 2009). There is no guarantee,
however, that the national laws reported transpose the directives adequately.
Finally, quantitative studies exclusively focus on the legal side of implementation
outcomes and do not provide information about the extent to which the EU rules
are applied in practice by the relevant national authorities.
The present paper is part of a research project that seeks to improve our
understanding about member states’ implementation of EU policies by
addressing the following questions: Do we observe systematic variation in
compliance (a) between different EU member states, (b) between different forms
of compliance such as timely notification, correct transposition and practical
implementation? What factors account for variation across different forms of
compliance?
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In this paper, we provide some preliminary findings about existing patterns in
the legal and practical implementation in 27 member states regarding 20 EU
directives from two policy areas: Internal Market and Services (10 directives)
and Justice and Home Affairs (10 directives). Based on information provided by
various expert evaluation reports and conformity studies, we make a distinction
between legal and practical implementation. In addition, we compare our dataset
on substantive implementation outcomes (both legal and practical compliance
problems) with notified compliance to the Commission (delayed notification of
implementation measures to the Commission).2 The preliminary findings show
that patterns of timely notification are not systematically related to the
correctness and the application of domestic laws relative to the EU
requirements. Furthermore, correct transposition does not necessarily mean
that the EU rules are properly applied by the relevant national institutions, as we
still observe variation in application problems, even if directives are properly
incorporated in domestic law.
This paper proceeds as follows. We start by discussing existing insights about
compliance in both Western and CEE member states before and after their
accession to the EU. Afterwards, we proceed with a description of the types of
implementation issues and our operationalization of different aspects of
compliance with EU law, followed by both descriptive and explanatory analysis
of “substantive” compliance problems in 27 member states. We conclude with a
discussion of the findings and the next steps in developing the project.
Research on policy implementation before and after EU enlargement
The topic of policy implementation across various national and policy contexts
has been a major part of the research agenda of Europeanization scholars
(Börzel and Risse, 2007; Cowles et al, 2001; Héritier, et al., 2001; Schimmelfennig
and Sedelmeier, 2005; for overviews see Börzel and Risse, 2003; Sedelmeier,
2011). There are two sub-‐fields within the Europeanization literature that are
2 The data-set is part of a project funded by the Swiss National Science Foundation (SSNF) that aims to gather comprehensive data on the actual implementation of EU rules in 27 member states regarding directives from four policy areas: Internal Market and Services, Environment, Social Policy(employment and anti-discrimination) and Justice and Home Affairs.
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relevant for the present research project: studies of EU enlargement and studies
of member states’ compliance with EU laws. First, the influence of EU
conditionality on CEE countries’ progress in implementing the acquis has
dominated studies of enlargement (Hughes et al., 2004, Grabbe, 2006,
Schimmelfennig and Sedelmeier, 2005; Sedelmeier, 2011). This research
suggests that conditionality upsets the domestic equilibrium by introducing
additional incentives for compliance with EU rules. The finding that the external
incentive of membership was the key mechanism that led to the adoption of EU
rules by the candidates makes the question of post-‐accession compliance even
more salient (Dimitrova, 2010; Schimmelfennig and Sedelmeier, 2004: 677–679;
Sedelmeier, 2008). More precisely, after membership is granted, changes in the
incentive structure are expected to affect member states’ behavior and lead to
deterioration of the implementation performance of CEE countries. Instead,
however, we observe consistently high compliance records of CEE countries
after accession. More surprisingly, based on data on timely notification and
infringement cases, the CEE member states seem to be outperforming their
Western counterparts (Knill and Tosun, 2009; Sedelmeier, 2008).
In contrast, studies of member states’ compliance with EU rules generally focus
on countries’ implementation performance in the absence of conditionality (for
overviews of the literature, see Mastenbroek, 2005; Toshkov, 2010; Treib, 2008).
A rich body of literature has been dedicated to the study of transposition of EU
directives by the old 15 member states and infringement cases initiated by the
Commission (e.g., Börzel, 2001; Jensen, 2007; Kaeding, 2008; König and Luetgert,
2009; Mastenbroek, 2003; Mbaye, 2001; Thomson et al., 2007; Zhelyazkova and
Torenvlied, 2009). Unlike studies of conditionality, the EU compliance literature
puts most emphasis on domestic factors in explaining member states’ behavior.
Whereas this literature focuses on a multitude of factors (Toshkov (2010)
uncovers no less than 263 relationships emphasized by scholars!), most studies
analyzing country-‐level differences make a distinction between preference-‐
based and capacity-‐related explanations for implementation problems. Capacity-‐
related factors combine both country-‐level capacity limitations (e.g., government
and bureaucratic effectiveness) (Mbaye, 2001; Toshkov, 2009) and institutional
constraints on the national implementation process within member states, such
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as veto players (e.g., administrative coordination among domestic actors)
(Dimitrova and Toshkov, 2009; Steunenberg, 2006)
Preference-‐based explanations often refer to societal and government support
for the EU or government policy preferences regarding particular EU directives
(Thomson et al, 2007; Thomson, 2010). Some studies also associate member
states’ general willingness to comply with EU legislation relates to the economic
benefits that countries gain as a result of their membership in the European
Union (Perkins and Neumayer, 2007).
As regards to differences between the “new” CEE and the “old” Western member
states, the most prominent explanatory factors that influence Western member
states’ compliance with EU rules are related to low administrative capacities and
high adjustment costs. In contrast, comparative analyses of CEE countries’
transposition of the acquis show that the preferences of governments and their
general ideological orientations could explain variation in compliance before
accession (Toshkov, 2008). Recent studies comparing the implementation
efficiency in both CEE and Western member states support these findings
(Yordanova and Zhelyazkova, 2011). Whereas capacity-‐related factors such as
government effectiveness are more relevant for the old 15 member states,
preference-‐based explanations such as support for the EU seem to explain
variation in compliance in the new CEE countries.
Despite growing research on member states’ implementation with EU rules,
there are still some important challenges that EU compliance scholars currently
face. One major challenge, for instance, lies in the debate between case study
approaches that focus on the practical implementation of EU policies and large-‐N
quantitative studies that rely on data from member states’ notified measures to
the Commission. In particular, detailed qualitative studies point out to the
existence of a gap between formal and practical compliance with the EU rules
(Falkner et al, 2005; Falkner et al., 2008) that cannot be captured by the
notification records and infringement cases (Hartlapp and Falkner, 2009). These
findings suggest the need for a more systematic comparison between different
types of compliance problems across EU member states and policy areas.
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A comparative approach for studying legal and practical compliance in the
EU: challenges and research strategy
In the context of this project, we make a distinction between three forms of
compliance: timely notification to the Commission, correct legal (i.e.
transposition) and practical implementation. A common problem of standard
compliance indicators is that they only capture notified compliance and do not
distinguish between notified and substantive implementation performance on
the one hand and legal and practical compliance, on the other. Thus, current
research on compliance has primarily focused on the timing or the speed at
which the EU policies are legally incorporated by the EU member states. The
focus on timing could be easily explained by the fact that the data are readily
available in the Commission databases. A more substantive explanation rests on
the assumption that member state’s national authorities eventually incorporate
the EU directives in their national legal systems in order to avoid punitive
actions taken by the Commission and the European Court of Justice (ECJ). While
this assumption is reasonable, the timing of transposition tells us little about
how the EU rules are incorporated in national law and implemented in practice.
To address this problem, some scholars rely on data from infringement
procedures as a more appropriate indicator for substantive violations of EU law.
Infringement cases are opened by the EU Commission in response to violations
of the EU rules and generally consist of three consecutive stages: 1) letter of
formal notice (where the Commission inquires national authorities about
possible violations); 2) reasoned opinion (the Commission formally establishes
that a violation has occurred and requires that national authorities remedy the
situation) and 3) referral to the ECJ. Whereas infringement proceedings should
in theory cover problems related to both legal and practical implementation, in
reality they refer to delayed notification, at least in the majority of cases. For
example, in our dataset on the implementation of 20 directives by 27 member
states, only one infringement case was opened against incorrect practical
implementation, while the rest refers to transposition delays. There could be
many reasons why application problems (or even issues related to incorrect
transposition) do not show up in infringement data. The most obvious reason is
that the Commission does not have the capacity to actively monitor the
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implementation process in each and every member states. Even if the
Commission officials obtain information about practical implementation,
information about violations is unlikely to show up in the records, as the
Commission will try to resolve the issue before escalating the conflict to more
formal stages. Finally, the Commission may have incentives to pursue
compliance with some policies and not others. For example, cases of non-‐
transposition of major provisions of a directive may receive more attention than
cases of only partial non-‐compliance or ambiguous transposition. Nevertheless,
the latter could still cause uncertainty about the impact of the directive in the
respective member state (Zhelyazkova, 2013). In short, standard compliance
indicators cannot be sufficient to reveal patterns regarding member states’ legal
and practical conformity with EU rules.
In this research project, legal compliance is broadly defined as the extent to
which a member states’ recently adopted and pre-‐existing legal system is in
conformity with a EU directive.3 Thus, correct transposition means that national
laws are compatible with the goals of the EU directives. In addition, assessment
goes beyond simply comparing the legal texts of notified implementation
measures and EU rules. For example, some text of the EU directive may be
missing from the national law transposing the directive because it is not relevant
for that particular country. In other cases, the respective text may be covered by
existing national rules and practice, even if these haven’t been communicated to
the EU Commission. In other words, assessment of legal conformity requires
extensive knowledge about the topic covered by the directive as well as the legal
system of a member state.
Analysing practical implementation in a comparative framework is even more
daunting. Unlike legal compliance, the nature of a practical problem varies across
policy issues and domestic settings. The issue is further complicated because the
actors responsible for practical implementation are no longer directly associated
with the national government. Instead, directives target different societal actors
within the member states (e.g., bar and restaurant holders regarding smoking
3 Member states often adopt different laws regarding an EU rule. For matters of feasibility, the following project does not focus on the extent to which each particular national legal measure conforms to an EU rule, but relies on information about a member state’s legal compliance with this rule as a whole.
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ban). Because we are aware of these issues, in this research project, practical
implementation refers to the actions taken by national authorities to ensure the
proper application of EU rules by the relevant actors (Versluis, 2007). Important
aspects of practical implementation thus include 1) providing both monitory and
institutional resources for the application of a law and 2) enforcement measures
such as effective and dissuasive sanctions against non-‐compliance and efficient
court proceedings. As a result, practical implementation is defined and measured
at the member state level. Such operationalization ensures that the concept of
practical implementation is comparable across countries and policy areas and
keeps the coding of compliance manageable within the scope of the project.
Nevertheless, we are aware that by constraining the analysis to governments and
other central authorities, we are unable to capture most application problems
that occur within member states. However, at the very least, we will be able to
distinguish between domestic laws issued just as a façade to satisfy the EU
Commission and cases where national authorities actually take the effort to
enforce the EU requirements.
It is important to note that legal and practical compliance are related to one
another. Incorrect transposition also has consequences for how the EU rules are
applied in practice. However, the opposite does not hold, as the correct
transposition of a directive does not necessarily lead to effective implementation
in practice. For example, national legislation could literally mirror the provisions
of a directive, while national ministers or other relevant actors within the
government may do little to make these provisions effective in practice.
Therefore, the operationalization of practical implementation remains distinct
from transposition. To provide an example, expert evaluation reports describe a
practical problem in the Lithuanian implementation of the directive on reception
conditions for asylum seekers. Even though national legislation regulates
material reception conditions as required by the directive, national experts
evaluated the material resources allocated by the government as not sufficient to
ensure an adequate standard of living of the applicants.
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Research design
Selection of directives and sources
In this paper, we present some first results regarding the relationship between
different types compliance across 27 member states (excluding Croatia). The
dataset is based on 20 EU directives from two policy areas: Internal Market and
Services (10 directives) and Justice and Home Affairs (10 directives).
Justice and Home Affairs directives regulate the free movement of persons,
asylum and immigration in the Union. Some of these directives define the
standards for reception of asylum applicants (2003/9/EC), of refugees
(2004/83/EC), of a mass of displaced persons (2001/55/EC), and of victims of
human trafficking (2004/81/EC). Another issue regulated by the directives is
Illegal immigration. Directive 2002/90/EC defines illegal immigration, whereas
Directive 2001/51/EC lists the financial penalties imposed on persons engaged
in this act. Mutual recognition to expulsion decisions is regulated by Directive
2001/40/EC and assistance in removal by air by Directive 2003/110/EC.
Finally, the sample also includes directives concerning the general rights of non-‐
EU citizens, such as long-‐term residence (2003/109/EC) and family reunification
(2003/86/EC).
The Internal Market directives mainly address two issues: “businesses in the
internal market” and “single market for services”. Three of ten directives are
related to harmonization of businesses. They aim to regulate the takeover bids
(2004/25/EC), facilitate cross-‐border mergers (2005/56/EC) and protect the
intellectual property (2004/48/EC). The rest of the directives aim at the removal
of the barriers to services. Directive 2006/123/EC is the general framework for
services, whereas others focus on specific sectors. Directive 2008/6/EC aims to
create an internal market in postal services, whereas the other five are essential
for the integration in financial services. These directives address the
transparency of the securities market (2004/109/EC), financial risk
management systems (2006/48/EC and 2009/49/EC), payments services
(2007/64/EC), and electronic money institutions (2009/110/EC).
The focus on directives from the two policy areas is appropriate given the
objectives of the study. First, they ensure variation in compliance with EU rules.
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For example, Internal Market directives contain more technical rules compared
to other policy areas. According to the last Commission report on the application
of EU law, Internal Market has the fourth highest number of opened cases among
21 policy areas. In contrast, fewer infringement cases are opened in the area of
Justice and Home Affairs, as these contain more general rules and provide more
discretion to national policy makers. Second, both policy areas address related
topics, which have nevertheless developed differently regarding their level of
centralization at the EU level. For example, whereas market liberalization in
terms freedom of movement for goods and services has also pushed for
increased freedom of movement for persons, integration forces have been much
slower and fragmented in the latter case. It remains unclear whether the same
patterns hold for the implementation of market-‐related EU policies and
directives that touch upon national identities and values.
Table 1 presents the sources of different types of information that were used in
this paper. Information about the legal and practical implementation was
obtained from different expert evaluation reports and conformity studies. All
studies and reports share important characteristics.
Table 1: Data sources
Practical implementation Legal implementation Acts and Actors
JUSTICE AND HOME AFFAIR DIRECTIVES 10 directives Odysseus Reports (2008) INTERNAL MARKET DIRECTIVES 2004/25/EC N/A Marccus Partners (2012) IBA (2008) 2004/48/EC N/A Tipik (2012) 2004/109/EC CESR (2008), Mazars (2009) CESR (2008) 2005/56/EC N/A Lexidale (2013) 2006/48/EC N/A DLA Piper UK LLP (2009) 2006/49/EC N/A DLA Piper UK LLP (2009) 2006/123/EC Siemens Report (2008)
Eurochambers (2011), Commission Report (2012)
Milieu (2011), Eurochambers (2011), Stelkens et al. (2012), Commission Report (2012)
Milleu (2011)
2007/64/EC N/A Tipik (2011) 2008/6/EC Copenhagen (2010), EGRP
(2011), WIK (2013) Copenhagen (2010), WIK (2013)
2009/110/EC N/A Tipik (2013)
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First, they were prepared by an external agency on the request and financial
support of the Commission. Thus, the main goal of these reports was to inform
the Commission about the implementation process in the member states.4
Second, all studies and reports were based on information provided by national
experts in the particular topic covered by the directive, as well as in the national
legal system. Finally, the reports do not evaluate the directives as a whole, but
separate articles and sub-‐articles of the directives. In some cases, the reports
even provide separate assessment of individual sentences within a sub-‐article, if
these could have different implications for a member state’s implementation
performance. Information about member states’ compliance with Justice and
Home Affairs directives were obtained from the “Conformity checking of the
transposition by Member States of 10 directives in the sector of Asylum and
Immigration” study, conducted by the Odysseus Academic Network for Legal
Studies on Immigration and Asylum in Europe. Table 2a and 2b provide an
example for the information in the reports and the structure of the conformity
tables illustrating the findings of the Odysseus study.
Table 2a: Excerpt from the Synthesis report on the Qualification Directive Article 4(1), second clause, Q. 8 from the national report
NO TRANSPOSITION AT ALL Bulgaria, Lithuania LEGAL PROBLEM Czech Republic, France, Romania, Spain
PRACTICAL PROBLEM Luxembourg, Slovakia Table 2b: Example from the conformity table in the Czech Republic regarding the Qualification directive Provision of the directive
Reference to Number of Question or Sub-question
State of transposition
Evaluation National provision of transposition
Article 2(e) Q.6 Law In order Part I, Art I s 27…
Article 4(1) Second Clause
Q.8A & Q8.B Pre-existing law Problem(1) Art 49a ASA
Article 7(1) Q.14 Law Problem(2) Art 2.8 ASA Article 20(3) Q.30.C Not Not(3) (1): Transposition of this provision is incomplete (2): Art. 7 (1) QD was transposed only with regards to the refugee status. Therefore, the ASA does not contain a concept of actors of protection from serious harm (interpreted textually) (3) This provision is not transposed into national legislation and is not regulated by existing laws.
4 However, as the Commission explicitly pointed this out to us, the contracts with the external agencies do not necessarilly mean that the EU Commission shares the opinion of the authors of the reports or that it is obliged to follow their recommendations.
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Regarding the Internal Market directives, no single report exists on all directives.
Instead, each directive was evaluated in separate studies (except directives
2006/48/EC and 2006/49/EC, which were analysed in one report by the same
experts). In some cases, directives 2006/123/EC and 2008/6/EC (the services
and the postal services directives), several reports were analysed, as they
covered different parts of these directives. We additionally contacted the authors
to request further information if the existing information in the reports was
incomplete or if there were inconsistencies.5
Because we used different sources of information regarding the implementation
of the Internal Market directives in the 27 member states, the expert reports also
differ in structure. Half of the reports have similar structure where the
evaluations of each directive’s provision were presented in a table. The other
half of the directives are coded based on different types of reports: member
states questionnaires (directive 2004/109/EC transparency requirements), a
general study with country specific reports focusing on provisions
(2005/56/EC) or developments in that sector (2008/8/EC), a general study
without country specific reports (2004/25/EC), and a book on implementation
of law (2006/123/EC). To increase the quality of the data, the information was
coded by three different coders and the final results were compared. Generally,
coding decisions were identical and in the few cases of disagreement, such cases
were excluded from the analysis.
Finally, some data limitations should be also addressed and discussed. For
example, whereas all the reports provide extensive information about the legal
aspect of compliance, they differ regarding their focus on practical
implementation. Thus, whereas we have information about the practical
implementation of all 10 Justice and Home Affairs directives, the same type of
information is only available for three of the 10 Internal Market directives (the
services and postal services directive as well as the directive on transparency
requirements).
5 In the process of coding compliance problems, we identified inconsistencies regarding only one of the directives in the study: directive 2005/56/EC on cross-‐border mergers and acquisitions. However, the authors of the report helped us resolve these issues.
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Another important limitation of the project is that both legal and practical
compliance are measured at a single point in time, while in reality
implementation performance varies over time. This is especially problematic for
practical implementation, where it takes years after the adoption of a law before
application problems become apparent. Likewise, problems of incorrect
transposition could be eliminated by the adoption of new domestic laws or vice
versa. While we are unable to take into account all changes in national legislation
and practice, the time frame of the project allows us to study compliance several
years after the prescribed deadlines, at a period when member states were
expected to have transposed and applied the EU directives. Thus, all conformity
studies used in this study were prepared several years after the transposition
deadlines and cover compliance in 27 countries in the period between 2007 and
2013. This time period allows us to include in the analysis both the old 15
member states, as well as the “new” member states from Central and Eastern
Europe.
Measuring different aspects of compliance
As already mentioned, the dependent variables in this study reflect three
different forms of compliance: timely notification, correct legal transposition,
and practical implementation. Delays in notification are generally measured on
the basis of the Eurlex database, which provides the number and the
implementation dates of national implementing measures. However there are
cases where member states report very early measures that are not entirely
relevant for the directive. For that reason, we use information on infringement
proceedings that were initiated by the Commission as a result of delayed
notification. In this study we present findings on reasoned opinions, which is the
stage where the Commission has established that a country hasn’t notified a
relevant transposition measure.
Information about legal implementation is obtained from expert evaluation
reports. As already noted, these reports analysed compliance at the provision
level. In this study, we only consider provisions that require member states to
take a certain action. For example, we excluded cases where a provision was not
applicable to a member state or it was optional to implement. The number of
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relevant provisions varies between directives and between member states
implementing the same directive. On the one hand, for eight member states, the
number of non-‐optional and relevant provisions was only three in the directive
2004/25/EC on take-‐over bids (the lowest number in our dataset). In the other
extreme, Luxembourg had to transpose 775 provisions from directive
2006/48/EC.
At the provision level, legal implementation of each provision is coded into four
categories. Full and correct implementation is coded as 3. Partial implementation
is observed when a certain part of a provision is not implemented and is missing
and it is coded as 2. When national experts identified a problem with the
transposition of a provision, this case is considered as incorrect implementation
and coded as 1. If a provision is not implemented at all, it is coded as 0. To
aggregate this information to directive level, we recoded the variable as 1 if
member states experienced any problems in legal implementation (including
non-‐transposed provisions) and 0 otherwise. At the directive level, Legal non-‐
conformity is measured as the ratio of incorrectly transposed relevant
provisions in a directive from the total number of evaluated provisions.
Because the reports provide separate information about practical
implementation problems, this variable is also coded sedately from legal
implementation. In order to understand the measure better, we provide an
example from the Services Directive (2006/123/EC). For example, Article 8 (1)
of the Services Directive states “all procedures and formalities relating to access
to a service activity and to the exercise thereof may be easily completed, at a
distance and by electronic means, through the relevant point of single contact”.
According to the Commission report (2008) on the implementation of the
directive, 12 member states transposed this rule without any legal problems.
However, some years after the transposition deadline, Eurochambres (2011)
surveyed member states about the implementation of the directive and asked if
their points of single contact provide the means to fully complete formalities,
both electronically and from a distance. The results were different than the legal
implementation situation. Half of the countries that implemented the provision
correctly in legal terms had points of single contact that did not provide a
complete set of formalities yet. Problems associated with practical
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15
implementation as coded in the same way as legal non-‐conformity. Fur the
purposes of this study, the variable reflects the ratio of provisions associated
practical implementation problems within a directive.
Descriptive analysis: comparison of different forms of compliance
In this paper, we provide some first descriptive results on how timely
notification, legal conformity and practical implementation relate to one another
across 27 member states and two policy areas. Figure 1 illustrates the
distribution of the ‘substantive’ compliance indicators across member states.
Figure 1a combines legal and practical non-‐conforming provisions and presents
country-‐level average scores separately for the policy areas. Instead, in Figure
1b, a distinction is based between practical and legal compliance problems, while
the country scores are based on all relevant directives. The computations on
practical implementation problems are based on 13 directives instead of 20
because of missing information on this variable for the Internal Market
directives.
Figure 1a shows that member states experienced on average more problems
implementing the ten Justice and Home Affairs directives than the directives
related to internal market and services. This observation is not surprising, given
that the former address more sensitive issues related to immigration of third
country nationals and integration of refugees. In addition, we do not observe a
distinct pattern between “new” CEE and the “old” Western member states that
would suggest the existence of an “east-‐west” divide in EU compliance. Whereas
Bulgaria and Poland on average incur a higher ratio non-‐conforming issues,
Slovenia, Slovakia and Lithuania excelled relative to other member states
regarding the internal market directives. Nevertheless, the average country
differences seem to be negligible regarding member states’ implementation of
the internal market directives. In addition, most member states respond
differently to the requirements from the two policy areas (Bulgaria is an
exception, where the country scored high on both internal market and justice
and home affairs directives). For example, whereas Estonia and Spain
experienced relatively few compliance problems with the ten internal market
directives, the national authorities in these two countries lead the way in the
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16
ratio of problematically implemented provisions in the area of justice and home
affairs. Turning more specifically to compliance problems related to practical
implementation, we observe limited variation in the average scores across the 27
countries (see Figure 1b). Instead, there seems to be more heterogeneity in the
extent to which countries implement different directives (as seen by the wide
confidence intervals for some of the member states). The heterogeneity in
implementation outcomes is especially pronounced in Ireland. However, this is
likely due to the smaller number of observations that are relevant for Ireland.
Figure6 1a: Average ratio of conformity problems (legal and practical issues) across two policy areas (bootstrapped 95% CIs around the average score, 1000 draws)
6 Denmark, Ireland and the UK were excluded from the JHA sample of directives, as only few of the 10 directives were applicable to the three member states.
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EU M
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0 .2 .4 .6 .8Ratio of non-conforming provisions (internal market)
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0 .2 .4 .6 .8Ratio of non-conforming provisions (justice and home affairs)
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17
Figure 1b: Average ratio of practical and legal problems across 20 directives
(bootstrapped 95% CIs around the average score, 1000 draws)
Figure 1b does not illustrate the relation between the different forms of
compliance. Instead, in Figure 2 (a-‐b) member states’ average scores on the three
dependent variables are plotted against each other to check whether there are
any discernable patterns. Figure 2a compares the average country scores for
legal and practical implementation, but it also makes a distinction between
directives belonging to one of the two policy areas.
Interestingly, the two policy areas differ in their relationship between legal and
practical compliance. In the area of internal market and services, all member
states exhibit (on average) similar and rather low share of legal compliance
problems, whereas their share of application problems varies considerably
across the 27 countries. We observe the opposite relation for the Justice and
Home Affairs directives. Whereas the ratio of legal problems varies considerably
across the EU member states, the average score related to practical
implementation problems is rather low for all member states.
irptuksesiskdecydk
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EU M
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0 .2 .4 .6 .8Ratio of legally non-conforming provisions
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0 .2 .4 .6 .8Ratio of practically non-conforming provisions
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18
Figure 2a: Legal and Practical conformity across two policy areas
The differences in legal compliance corroborate general expectations that justice
and home affairs directives are more difficult to implement as they address
nationally sensitive issues. In contrast, the internal market directives often
consist of rather technical requirements. Furthermore, the Commission puts
much high emphasis on the transposition of internal market directives. The
observed differences in practical implementation are more difficult to explain.
One possible explanation relates to the way the variables for legal and practical
implementation are operationalized in this study. If provisions are generally
transposed incorrectly in national law, related practical problems will also ensue
and we are unlikely to observe many more practical problems separate from
those related to legal transposition. Still, the finding that member states
considerably vary in the practical implementation of the correctly transposed in
general internal market directives suggests that even technical policies are likely
cause implementation problems. The emphasis of the Commission on
compliance with internal market polices seem to ensure their legal conformity,
but the Commission impact does not extend to member states’ practical
implementation.
Figure 2b provides some visual comparison for member states’ average scores
on different compliance indicators computed based on all directives in the
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0 .2 .4 .6Application problems(ratio of practical problems)
Internal Market and Services Justice and Home Affairs
Legal and Practical Implementation
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19
current dataset. To capture problems with delayed implementation, we use the
ratio of infringement cases (reasoned opinions) initiated by the Commission as a
result of transposition delays. In addition, the figure also distinguishes between
Western and the new member states from Central and Eastern Europe (CEE) as
preliminary evidence regarding the alleged “west-‐east divide” regarding the
application of EU law.
Figure 2b: Comparison between legal, practical and delayed implementation
Based on Figure 2b, we do not observe any clear relationship between legal and
practical implementation problems, on the one hand, and substantive
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0 .1 .2 .3Application problems(ratio of practical problems)
Legal and Practical Implementation
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0 .1 .2 .3Legal non-conformity(ratio of incorrect provisions)
Notified and Legal Implementation
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0 .1 .2 .3Application problems(ratio of practical problems)
Notified and Practical implementation
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0 .1 .2 .3Substantive non-compliance(legal and practical combined)
Western member state CEE member state
Notified and Substantive Implementation
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20
implementation problems (legal and practical) and delayed notification, on the
other. This finding is also corroborated by simple correlation tests (e.g., Pearson
rho), which show no significant correlations between the different aspects of
compliance. Furthermore, based on our measures for legal and practical
implementation, there is no evidence for a distinct west-‐east divide. In
congruence with existing research, however, the CEE member states receive
fewer infringement cases due to delays in transposition than their Western
counterparts.
Explanatory analysis
Whereas the descriptive analysis does not illustrate any distinctive country-‐level
patterns in different forms of compliance, it still shows variation across member
states and directives in their national implementation outcomes. Even though,
we did not formulate specific hypotheses regarding the relevant factors that
could influence different types of compliance problems, it is still important to
analyze whether the same factors explain variation in the different dependent
variables. To this end, we conducted preliminary statistical tests on the
likelihood of member states’ share of compliance problems. The statistical
analysis includes both capacity-‐related and preference-‐based factors employed
in existing research on implementation.
For each directive, we defined the parties that were in office when that directive
was transposed into national law based on the database of Döring and Manow
(2010). In accordance with existing research, we assume that a member state’s
willingness to comply with a EU directive is reflected in its level of support for
EU integration. This variable was coded based on data from the “Party Policy in
Modern Democracies” project (Benoit and Laver, 2006) and the Chapel Hill data
set (Marks et al., 2006). In addition, changes in government composition before
implementation could disrupt the implementation of directives, as new political
elites may not share the views of the preceding government that participated in
the adoption of the directive at the EU level.
As regards capacity-‐related variables, we include data on a member state’s
bureaucratic efficiency. The measure was directly obtained from the World Bank
Governance indicators database (Kaufmann et al, 2005). In addition, the
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existence of veto players may negatively affect the transposition of EU law. Based
on information provided by the expert evaluation reports, we identified the
relevant domestic actors responsible for transposition and application of each
directive. The variable reflects the number of different ministries responsible for
implementing a directive.
The statistical analysis additionally compares the performance of Western
countries without communist legacies (coded as 1) relative to the “new” CEE
member states regarding different types of compliance problems. We include
another categorical variable for policy sector to check whether there are
systematic differences between Internal Market (coded as 1) and Justice and
Home Affairs directives. Finally, we control for directive characteristics such as
policy complexity (measured by the number of recitals in a directive) as well as
the number of provisions in a directive that are relevant for a member state.
Table 3 presents the results from the statistical models on the different forms of
compliance. Whereas the Model 1 applies standard logistic regression on the
likelihood of reasoned opinions against delays, the rest of the models analyze
member states’ share of substantive problems (legal and practical combined) in
a directive (Model 2), the ratio of incorrectly transposed provisions (Model 3)
and the share of practical problems (Model 4). In congruence with the
descriptive analysis, we observe significant differences between the “new” CEE
member states and Western countries only with respect to delayed notification.
In addition, the level of bureaucratic efficiency in a country is also relevant for
compliance problems associated with delayed transposition, but not for more
substantive compliance indicators. In contrast, the analysis shows that the
number of ministries responsible for implementing a directive has a positive
effect only on the share of practical implementation issues in a directive.
Regarding the effects of the preference-‐based factors, surprisingly, government
support for the EU has significant positive effect on the share of incorrectly
transposed provisions (dependent variable: legal non-‐conformity), whereas
change in government decreases the share of issues associated with practical
implementation. However, these contradictory results are driven by a couple of
outliers and the results are not robust across different model specifications.
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Table 3: Analysis of different aspects of compliance in 27 member states regarding 20 directives Infringements
RO (Delays) Substantive non-compliance
Legal non-conformity
Practical non-compliance
Variables Coef. (S.E) Coef. (S.E) Coef. (S.E) Coef. (S.E)
Western member state 2.563*** -0.249 -0.255 -0.174
(0.527) (0.228) (0.236) (0.225)
Govt. change 0.417 -0.171 -0.057 -0.541**
(0.316) (0.230) (0.230) (0.242)
Govt. effectiveness -0.800** 0.002 0.018 -0.284
(0.388) (0.187) (0.188) (0.229)
N ministries
implementing a directive
-0.023 0.020 -0.011 0.084**
(0.119) (0.020) (0.019) (0.039)
Govt. EU support 0.079 0.095* 0.103** (0.022)
(0.141) (0.057) (0.046) -0.085
Complexity (N recitals) 0.01 0.013*** 0.014*** 0.027**
(0.008) (0.003) (0.003) (0.009)
N relevant provisions -0.002** -0.003*** -0.003*** -0.024**
(0.001) (0.001) (0.001) (0.010)
Policy Area
(Internal Market=1)
-0.647 -1.094*** -0.867*** 0.190
(0.423) (0.246) (0.261) (0.548)
Constant -2.130* -1.815** -2.136*** -2.090**
(1.259) (0.622) (0.520) (0.849)
Pseudo loglikelihood -206.088 -141.952 -135.993 -55.057
N 377 409 409 290
Note: Robust Standard errors (observations clustered in member states)
Regarding the policy-‐level characteristics, the number of recitals increases the
share of substantive problems (practical and legal combined and separate), but
has not effect on infringement cases due to delays. The only variable that has the
same effect on all compliance indicators is the number of relevant provisions for
a member state. In particular, higher number of relevant provisions is negatively
associated with compliance problems. This result is not too surprising given that
the longest directives in our sample consist of many technical provisions and
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23
annexes that could facilitate transposition by providing more specific
implementation guidelines to the member states.
Finally, as shown by the descriptive analysis, Internal Market directives incur
fewer issues related to legal non-‐conformity than Justice and Home Affairs
directives. In contrast, differences in practical implementation between the two
policy areas are not statistically significant. This is likely due to the low number
of existing reports on the practical implementation of internal market directives
(only three out of ten directives).
Conclusion
The aim of this paper was to provide some first insights about member states’
legal and practical implementation across two policy areas (Internal Market and
Justice and Home Affairs) in an enlarged European Union. Whereas existing
research does not distinguish between different types of implementation
problems, we tried to discuss and describe possible ways to disentangle (both
conceptually and empirically) delayed and incorrect legal implementation as
well as practical implementation problems. Understanding these differences is
important, given that recent findings suggest the existence of a gap between
what scholars refer to as ”law in the books” and “law in action” (Versluis, 2007).
Furthermore, discrepancies between formal and practical compliance have been
specifically attributed to the “new” member states from Central and Eastern
Europe. In particular, recent studies suggest that while the CEE member states
excel in their efficiency of transposing the EU laws, these laws fail to be applied
in practice by the relevant domestic actors.
In this paper, we introduce our research approach to studying different types of
compliance problems in a cross-‐country comparative framework. We also
provide some preliminary evidence on how different compliance indicators vary
across member states and the two policy areas, and test the argument that the
“new” CEE countries are different from their Western counterparts regarding
different forms of compliance with EU legislation. Finally, we compare the link
between standard capacity-‐related and preference-‐based factors on compliance
problems associated with delayed notification and incorrect legal and practical
implementation.
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Thus, both the descriptive and explanatory analyses show that national
authorities in the CEE member states are indeed less likely to obtain
infringement cases from the Commission against delays. However, we do not
observe any systematic differences regarding substantive forms of compliance
problems such as incorrect transposition or application failures. Furthermore,
we find that the more technical Internal Market directives in our sample incur
fewer implementation problems (at least regarding legal implementation) than
directives touching upon more sensitive topics from the area of Justice and Home
Affairs. Given that internal market policy is generally more centralized at the EU
level, this finding suggests that different modes of integration go beyond the EU
decision-‐making stage.
In line with existing implementation research, the analysis also shows factors
related to member states’ capacities and domestic constraints have higher
leverage in explaining compliance problems. Whereas bureaucratic efficiency
decreases problems associated with transposition delays, the number of actors
involved in the implementation process has a negative influence on a member
state’s share of law application problems.
However, we should note that drawing more general conclusions about
compliance with EU is limited based on a data set on 20 directives. In the next
stages of the project, we will collect and code data on member states’ substantive
compliance with more directives and directives from other policy areas. We also
need to address more systematically the observed discrepancies between timely
notification and incorrect legal and practical implementation within some
countries. The next questions that this project will focus on concern finding
explanations why some member states may notify timely measures that do not
correctly meet the EU standards.
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