The European Court of Justice as an agent of Europeanization? Restoring compliance with EU law

ABSTRACT

Often, states incrementally adapt to demands stemming from the European Union. Yet, most of the prominent Europeanization approaches focus exclusively on immediate responses of states and are also static. If they theorize supranational actors as agents of top-down Europeanization at all, they do not specify scope conditions for their success. This article complements existing approaches in studying instances in which states do not meet European demands immediately (non-compliance). It analyses the role of the European Court of Justice in facilitating changes even against states' eminent resistance to top-down Europeanization. An empirical analysis shows that judgments and threats of sanctions are important for restoring compliance but are not always effective. This article theoretically accounts for this finding. Judgments create publicity and empower societal compliance proponents. This facilitates successful shaming or reframing strategies leading to catching up with Europeanization, if contested norms fit to institutionalized norms or if old policy frames are degenerating. Financial penalties are only effective if domestic societal resistance is weak and if the shadow of sanctions is intense. The hypotheses are illustrated with two environmental and social policy case studies in Germany.

Keywords:

• Compliance
• domestic change
• environmental policy
• European Court of Justice
• Europeanization
• social policy.

Notes

1. I would like to thank Tanja A. Börzel and the anonymous reviewers for helpful comments.

2. The data stem from the Annual Reports of the European Commission (first published in 1978). The dataset includes cases up to 2000 for the EU 12 states, which allows the observation of immediate and mediate domestic changes in reaction to compliance-restoring instruments.

3. The policy fields representatively cover areas in which the EU has many competencies and is very active (the environment) and areas that have been preserved predominately by states (social policy). Moreover, while environmental policy has many infringements, social policy directives are violated less frequently.

4. Most often, the ECJ sides with the Commission. However, the ECJ is not an ‘agent’ of the Commission, but is independent and restricted by rules of procedure. Empirically, the ECJ rejects 3 per cent of the complaints of the Commission for procedural reasons. Yet, since cases consist of three complaints on average, the likelihood that states lose them is still very probable.

5. The 1997 regulation (Freizügigkeitsverordnung) was close to the wording of the European Community (EC) directive. Yet, it only marginally (if at all) increased transparency and the legal certainty of foreign workers and resembled a minimalist adaptation (patching up instead of a comprehensive reform). While it ensured that states' administrations recognized the European foreign workers directive as part of the legal landscape, the decree did not increase the transparency of rights and obligations to affected individuals, because the two laws on foreigners remained unchanged. Hence, foreign EC citizens still faced difficulties in knowing their rights.

6. This case centred on an Italian guest worker family who sent sick certificates from Italy (where they went for vacations) to their German employer several summers in a row. The employer doubted that all four employees (husband, wife, and two children) became sick together again and stopped wage payments (Advocate General 1996). In 1996, a preliminary ruling of the ECJ stated that employers must generally accept sick certificates issued within the EC and that it is not lawful to deny wage payments on the basis of serious doubts on the correctness of sick certificates (European Court of Justice 1996). This ruling provoked negative sentiments in the broader German public and reinforced sceptical sentiments regarding long-term residence of foreign workers (e.g. Frankfurter Allgemeine Zeitung 1996: 17).

7. A second process contributed to an environment in which the government faced reputational losses for their too harsh policies regarding foreigners. Only three months before the ECJ ruled on the German foreign workers case, the Minister of the Interior, Mr Kanther, CDU, issued a decree that required visas for children even if they were born in Germany and had lived there ever since. This decree sought to prevent residence claims through the back door. It received great media attention and created much public feeling against the German government (Sueddeutsche Zeitung 1997c; TAZ 1997). Peak opposition was reached in spring 1997, when public demonstrations against government policy regard foreigners – especially the ‘Kanther-Verordnung’ that required visas for foreign children living in Germany – took place in several German cities (Sueddeutsche Zeitung 1997a).

8. Even then, the shadow of financial penalties would have been moderate, since there would have been two additional steps in the infringement procedure, until the ECJ would finally have issued fines.

9. The main conclusions of the ECJ were that projects of annex II are obligatory, federal and state transpositions must be notified, and the directive's scope encompasses all projects after the directive came into force (European Court of Justice 1998).

10. The SPD/Green government pursued a comprehensive reform of the German body of environmental law via an environmental code (the UGB), of which the EIA directive as interpreted by the ECJ should have been an integral element.