Non-compliance with EU directives in the member states: opposition through the backdoor?

NON-COMPLIANCE AS OPPOSITION: QUESTIONS AND RESEARCH DESIGN

In recent times, scholars of European integration have increasingly focused on the effects of Europeanisation on domestic systems of governance. This perspective has produced a number of studies dealing with the impact of membership in the European Union (EU) on such phenomena as national parliaments (Maurer and Wessels 2001; Dimitrakopoulos 2001 a; Raunio and Hix 2001), party systems (Ladrech 2001; Mair 2001), administrations (Olsen 2002b), state-society relationships (Schmidt 1999; Falkner 2000) or territorial state structures (Borzel 2001a). In this context, scholars have also turned their attention to the patterns of adjustment to European policies, and in particular to the national implementation of EU law. (1) With regard to implementation, Directives are of particular interest. They are not directly applicable at the national level (as Regulations are), but have to be incorporated into national law first. Therefore, the focus of this paper lies on the transposition of European Directives, and more specifically, on the meaning of transposition failures.

According to the mainstream of the more recent literature on Europeanisation, adjustment processes are expected to be more problematic if the degree of misfit (2) between European rules and existing institutional and regulatory traditions is high (Borzel 2000a; 2000b; Duina 1999; Knill 2001; Knill and Lenschow 1999; 2001). From this perspective, national governments, parliaments and administrations are expected to act as 'guardians of the status quo, as the shield protecting national legal-administrative traditions' against intrusion from the European level (Duina 1997: 157; for similar statements see Borzel 2000a: 224-5; 2000b: 147; Knill and Lenschow 2000: 261). Following this line of reasoning, deliberate opposition of national actors during the transposition phase should thus be expected if European Directives demand significant changes to the pre-existing national arrangements.

On a more general level, one could argue that whatever the degree of misfit with the new EU norms and standards, the implementation of European Directives confronts two political systems. This conforms to a view of the EU as a federal phenomenon with two (3) different levels of government (national and European). This multi-layer perspective (4) suggests that the preference formation processes of the lower-level polity and the higher-level polity are clearly distinct. It implies that in cases where a national government is unsuccessful in 'uploading' its own preferences at the EU level as the template for the joint measure or standard, it will try to resist during the 'downloading' process, i.e. later at the implementation stage (for the uploading versus downloading terminology see Borzel 2002a). Only in those cases where there is no national protest against a specific measure during EU-level decision-making, implementation should be unproblematic according to such a mainly intergovernmentalist perspective (for this perspective on European integration, see most importantly Moravcsik 1993). Non-transposition could hence be considered a means to protest against being outvoted or otherwise 'minoritised' in the EU's policy process, as 'opposition through the backdoor'.

Older contributions to the debate about implementation processes in the European context, which have received less scholarly attention in recent years, had a different focus. They expected implementation problems to be rather due to administrative shortcomings (Ciavarini Azzi 1985; Siedentopf and Ziller 1988a; 1988b; Schwarze et al. 1993). In addition, scholars have highlighted concerns about the legal quality of EU Directives (e.g. Weiler 1988; Dimitrakopoulos 2001b). Since Directives are typically the result of long discussions and elaborate compromises between the 15 member states, they argue that such texts may be less than clear and may leave room for diverse understandings. This suggests that misinterpretation can be a factor leading to incorrect or delayed transposition into national law (and to application problems, if the transposition does not provide a clear-cut interpretation itself).

Our analysis is based on a unique in-depth study in one policy area of particular political importance, i.e. social policy. This especially interesting case is seen by many as an important complement to the EU's Internal Market but is sternly opposed by others. These conflicts make non-implementation all the more interesting from a political science perspective. Our analysis will shed light on problematic national adjustment processes and will discuss the factors that explain why member states do not transpose correctly and/or in a timely or efficient manner. Is that kind of national noncompliance caused by the deliberate opposition of national actors who want to protect their 'national systems', as suggested in much of the recent misfit-oriented literature and by the multi-layer perspective on European integration?

Most research on compliance with EU law analyses data on the infringement processes initiated by the EU Commission (Ehlermann 1987; Mendrinou 1996; Neyer and Zurn 2001; Sverdrup 2003; Borzel 2002a; 2001b; 2002b). Typically, however, the Commission's enforcement policy (being a reaction to non-compliant behaviour) cannot be set as the equivalent to the implementation performance at the national level and, most importantly, the reasons for failures to comply are unknown due to a lack of knowledge beyond the statistical data offered by Commission sources. Improving on this, our in-depth empirical study identifies the reasons for 'misbehaviour' and finally looks at 'the other side of the coin'. The analysis offered in this article links the Commission data to institutional aspects of legislative and administrative structures in the member states, and to the interaction of actors involved in the implementation processes. By improving our knowledge on the reasons for non-compliance (5) and by relating concrete empirical findings to the extant theories in the field (see immediately below), this text furthers the rather broad ongoing debate on 'Europeanisation' (see e.g. Olsen 2002a).