Non-Compliance with EU Directives in the Member States: Opposition through the Backdoor?

Abstract

To what extent are European rules complied with, and what are the reasons for non-compliance with EU law? According to an intergovernmentalist perspective, implementation problems should occur when member states failed to assert their interests in the European decision-making process. Focusing on 26 infringement procedures from the area of labour law, we show that such ‘opposition through the backdoor’ does occur occasionally. However, we demonstrate that opposition at the end of the EU policy process may also arise without prior opposition at the beginning. Additionally, our findings indicate that non-compliance is often unrelated to opposition, and due to administrative shortcomings, interpretation problems, and issue linkage. This study is based on unique in-depth data stemming from a ground-level analysis of the implementation of six EU Directives in all 15 member states.

Notes

The term implementation refers to the transposition of European legislation into national law as well as to the enforcement of these legal provisions, both influencing proper application in the member states.

The degree of misfit refers to the match or mismatch between EU measures and domestic institutions, policy instruments, standards and problem-solving approaches. It can thus be either of qualitative or of quantitative nature.

At least, since some member states have even lower levels of internal government.

It is crucial to highlight that this ‘multi-layer’ perspective is quite different from the ‘multi-level’ governance approach (see Marks et al. 1996; Hooghe and Marks 2001).

Note that we do not focus here on the overall level of compliance in the member states (for this is another topic to be discussed in forthcoming publications).

In this study we only look into issues connected to the ‘first pillar’ of the European Union. Therefore, in a strict sense ‘European Community (EC)’ would be more accurate. Nevertheless, we will use ‘European Union’ throughout the paper because it has become a common term in everyday usage.

Which touch on issues that were previously covered by national law. By contrast, Directives on transnational issues such as the European Works Council Directive (94/45/EC) are not of interest here.

Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, OJ L 288, 18 Oct. 1991, 32–5.

Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), OJ L 348, 28 Nov. 1992, 1–8.

Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, OJ L 307, 13 Dec. 1993, 18–24.

Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work, OJ L 216, 20 Aug. 1994, 12–20.

Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ L 145, 19 June 1996, 4–9.

Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Annex: Framework agreement on part-time work, OJ L 014, 20 Jan. 1998, 9–14.

In later papers, we look at our material ‘the other way round’. Where did the EU standards demand significant adaptations, and how smooth was national change then? Also, looking at those cases with high degrees of misfit and national non-compliance, did the Commission actually initiate and pursue infringement proceedings? For further details on the project see www.mpi-fg-koeln.mpg.de/socialeurope.

The European Commission differentiates between infringement procedures for non-notification of the national transposition measures, cases with incorrect transposition and cases with incorrect application. However, for the purpose of this paper it is not necessary to follow the distinction between non-notification and incorrect transposition since here we only study cases of advanced infringement procedures, where failure of notification as the real reason (as opposed to the revealed reason for a failure to implement) is not a likely scenario. Furthermore, for the Directives under scrutiny here, no cases of infringement procedures for incorrect application exist.

The data on infringement procedures initiated by the European Commission are based on information obtained from the homepage of the European Commission, on the annual Reports on Monitoring the Application of Community Law, which are published by the European Commission and on press releases and information collected in our interviews. Note that this data does not necessarily reveal all cases of non-compliance in the member states. This can be due either to insufficient information or to a political decision taken by the Commission. This problem cannot be tackled adequately within the scope of this paper, where we chose official infringement procedures to determine our sample of non-compliance cases.

Judgment of the Court of 12 November 1996, United Kingdom of Great Britain and Northern Ireland v Council of the European Union, Case C-84/94, European Court Reports 1996, p.I-05755.

The Working Time Regulations 1998, Statutory Instrument 1998 No.1833.

Letter of formal notice for non-transposition (1997) and reasoned opinion for non-transposition (Dec. 1997 or early 1998).

Even considering that the UK had pushed through a number of far-reaching exemptions and derogations.

The Health and Safety (Young Persons) Regulations 1997, Statutory Instrument 1997 No.135.

Letter of formal notice for non-transposition (1997) and reasoned opinion for non-transposition (Dec. 1997 or early 1998), decision to stop procedure (2 Dec. 1998).

Letter of formal notice for incorrect transposition (11 Dec. 1998), reasoned opinion for incorrect transposition (6 Aug. 1999), decision for transferral to the ECJ (2000), but no seizure by ECJ, instead additional reasoned opinion (11 Oct. 2001). We are aware that non-compliance also existed for the regulation of female night work, in general, but since the whole debate about the lifting of the night work ban for women in France is more related to the equal treatment Directive (76/207/EEC) we limit the analysis to the reasons for the infringement procedure brought forward by the Commission, thus to the leave for health and safety reasons connected with pregnancy.

Ordonnance relative aux femmes enceintes au travail et au congé maternité, 21 Feb. 2001 (Journal Officiel, 24 Feb. 2001).

‘Ces dispositions devaient faire l'objet d'une transposition au plus tard le 22 juin 1996. Faute de support juridique adéquat, la France n'a pas opéré ces ajustements’ (Bulletin Officiel du Travail, de l'Emploie et de Formation Professionnelle, 20 March 2001).

Moreover, France is known for quite professional work of the coordination unit for EU policy, the SGCI (Lequesne 1996: 263–9).

Letter of formal notice for non-notification (1997), reasoned opinion for non-notification (20 Jan. 1998), transferral to the ECJ (2 Dec. 1998).

Some standards had already been transposed with the second Loi Aubry (37/2000) on 19 Jan. 2000. The remaining misfit was tackled a year later by an ordonnance on 3 Jan. 2001. The infringement procedure was subsequently stopped on 23 May 2001.

Meaning no later than six months after the end of the transposition period.

Letter of formal notice for incorrect transposition (30 Dec. 1998), reasoned opinion for incorrect transposition (6 Aug. 1999).

Of course these administrative problems can also occur in combination with other factors. If e.g. a transposition process is delayed due to issue linkage (more details see below), it is also plausible that an inefficient administration can extend the delay additionally.

Letter of formal notice for non-notification (1993), reasoned opinion for non-notification (1996).

In the literature, the Italian administration is often described as highly fragmented with overlapping competencies between old and new regulations, which may cause serious co-ordination problems (for further details see e.g. Cananea 2000; or Gallo and Hanny 2003). It has to be mentioned that the transposition of this Directive (adopted at the beginning of the 1990s) fell into a period with difficult changes in government, in particular from the Andreotti (Democrazia Cristiana) to the Amato (left-liberal) government in 1992. The period until the Directive was finally transposed saw the so-called ‘technocrat governments’ (Ciampi 1993–94 and Dini 1995–96), divided by a short interplay of Berlusconi (1994) and followed by the Prodi government (1996–98). It is clear, though, that this Directive was not sufficiently important to become a ‘politically significant issue’, which might have led to conflicts among the parties in government or parliament and therefore delayed transposition. Thus, we consider administrative problems to be the main reason for the delay in implementation.

Letter of formal notice for non-notification (1997), reasoned opinion for non-notification (1998).

The discussion on working time reduction had been very controversial during the years prior to the transposition (Interview P2: 551–73).

Letter of formal notice for non-notification (1997), reasoned opinion for non-notification (1997).

In this national reform process the ILO convention No.138 was also implemented, but earlier than the Directive. The Short Term Social Pact signed in Jan. 1996 under the initiative of the Socialist government introduced stricter regulation for child labour (Petmesidou 2001: 85).

As a reaction the Confederação Geral dos Trabalhadores Portugueses (CGTP-IN, communist trade union) critically declared that a clearer concept of what to consider light work would be needed. The Confederação do Comércio e Servicios de Portugal (CCP, service sector employers' organisation) welcomed the draft, stating that it did not require major changes to the existing regulation. Uniao Geral de Trabalhadores (UGT, trade unions) had already highlighted the problem in their 1 May celebrations. Their demands were not related to the EU Directive, but centred around a decent minimum wage to help families survive without recourse to child labour, heavier fines and more intervention from the labour inspectorate (Cristovam 1998).

Law 58/99 was approved by the Assembleia da República on 13 May 1999 and published in the Official Journal on 30 June. Later on, light work was defined by decree law 170/2001 on 25 May 2001. Law 61/99 of 30 June regulated working time for young workers, and law 118/99, adopted on 11 Aug., dealt with sanctions and punishment in cases of non-compliance with the bundle of legislation for young workers (Interviews P2: 731–1007 and P8: 672–725).

Letter of formal notice for non-notification (1997), reasoned opinion for non-notification (12 Feb. 1998), decision for transferral to the ECJ (2 Dec. 1998) and ruling in case 46/99 by the ECJ (8 June 2000) (European Court of Justice 2000).

For sure, a particular national interpretation can potentially just be another means to hide opposition. This is not what we discuss in this sub-section.

Popular examples concerning the Directives studied here are the SIMAP case (C-303/98), dealing with the question of whether time on call in hospitals has to be considered working time, or the BECTU case (C-173/99), which specified the right of short-term workers for annual leave.

Letter of formal notice for incorrect transposition (11 March 1999) and reasoned opinion for incorrect transposition (3 April 2000).

Reasoned opinion for incorrect transposition (2 April 2001).

The text of the reasoned opinion issued by the European Commission against Ireland is reprinted in Clauwaert (2000: 117–18). This document also describes the process of consultation with the European-level social partners.

For Ireland, see The European Communities (Parental Leave) Regulations, 2000, Statutory Instrument 2000. In the UK, the cut-off date was repealed by The Maternity and Parental Leave (Amendment) Regulations 2001, Statutory Instrument 2001 No.4010.

This may be due to the fact that the transposition of the Directive was linked to a whole package of employment policy measures. Compared to that the cut-off date was only a minor issue that attracted no major interest.

Therefore the case was referred to the ECJ on 9 July 2003.

Correctness, by contrast, might be more difficult to attain in these cases since there can be less room for detailed change when the added-on reform is almost finished.