Complying with EU directives' requirements: the link between EU decision-making and the correct transposition of EU provisions

Abstract

The implementation of EU policies has hardly been studied from the perspective of the actual performance of national policy-makers. The present study fills the gap of EU policy implementation research by analysing member states' correct transposition of the provisions of different EU directives. Hypotheses are formulated on the relationship between characteristics of the process and outcome of EU decision-making and the transposition performance of member states. Member states' incentives to deviate, conflict in the Council, as well as characteristics of the adopted EU decisions, such as discretion and complexity, are expected to influence compliance with different EU requirements. Hypotheses are tested on the transposition performance of 15 member states regarding 136 EU provisions. The analyses reveal that member states are likely to act upon their incentives to deviate during the implementation process, and use their freedom of manoeuvre to achieve compliance with the EU requirements.

Keywords:

• Compliance
• EU decision-making
• member states' preferences
• provisions
• transposition

ACKNOWLEDGEMENTS

I am grateful to Robert Thomson, René Torenvlied and the three anonymous JEPP reviewers for their useful comments and suggestions on earlier versions of this article.

Notes

One exception is the study by Thomson et al. (2007), who find support for the effect of states' incentives to deviate on infringement cases.

With the exception of the cases on the Framework Equality Directive, the dependent variable is coded based on reports prepared by one national expert per member state. For the Framework Equality Directive, the information provided by the reports was generally congruent. When this was not the case, the more recent report was considered to take into account changes member states' legislation.

The total number of cases on the dependent variable is less than 2040 owing to missing cases: e.g., Denmark was not bound to transpose the provisions of Directive 2001/55/EC. In addition, in few cases the information was too limited to identify whether there was a compliance problem or because the provisions were not evaluated in the reports.

Data were collected on a total of 130 documents in relation to the four directives in this study. Council of the European Union documents are available via the Public Register, at http://www.consilium.europa.eu/documents/access-to-council-documents-public-register?lang=en (last accessed 11 October 2012).

However, the Compendium lacks specific information about the legal framework of Luxembourg prior to the adoption of the Consumer Sales Directive.

The reports were published by the European Monitoring Centre on Racism and Xenophobia (2002) as part of the project ‘Implementing European Anti-Discrimination Law’.

Different model specifications showed that provision length does not significantly affect compliance if the Temporary Protection Directive is excluded from the analysis. The same analysis was also applied to each directive separately. The effects of incentives to deviate and discretion remain stable, while there are differences regarding the effects of policy complexity and conflict in the Council. The explanation could be the high correlation between provision-level variables for particular directives. One example is the Framework Equality Directive, where the number of recitals is highly correlated with conflict in the Council (r = 0.78).

I also tested whether the effect of member states' incentives is weaker if there was a change of government after a directive's adoption. However, the interaction effect was not significant. The results are similar if instead the models include the magnitude of ideological change within a member state.