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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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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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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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.

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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

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

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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Notified and Legal Implementation

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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

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

21

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.

22

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

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.

24

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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