Troubles with transposition? Explaining trends in member-state notification and the delayed transposition of EU directives

British Journal of Political Science

Volumn 39, Issue 1, 2009, Pages 163-194

  König, Thomas ^a   Luetgert, Brooke ^a  

^a UNIVERSITY OF MANNHEIM   (Germany)

Author keywords

[No Author keywords available]

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EID: 57349187107     PISSN: 00071234     EISSN: 14692112     Source Type: Journal    
DOI: 10.1017/S0007123408000380     Document Type: Article

References (116)

1. Article 249 of the EC treaty specifies three types of EU binding legislative instruments: regulations, directives and decisions, as well as two types of non-binding instruments: recommendations and opinions. These instruments differ greatly with respect to their addressees, the scope of their binding force and their effect on national legal orders. For a complete discussion, please refer to Sacha Prechal, Directives in European Community Law: A Study of Directives and Their Enforcement in National Courts (Oxford: Clarendon Press, 1995), p. 15. According to Article 249 (2) EC. a regulation shall have general application and shall be binding in its entirety and directly applicable in all EU member states. A decision is addressed to a limited number of member states and/or private parties, and, like regulations, shall be binding in its entirety. In contrast to these two instruments, the directive is only binding on EU member states as to the objective to be achieved and leaves national authorities the freedom to choose the form and methods used to attain the objective (Article 249(3) EC).
2. See Thomas König, 'Controlling the Guardian' (paper prepared for the Annual Meeting of the Midwest Political Science Association, 2005). As evidenced in EU case law, directives take precedence over national law and take direct effect if the provisions are unconditional and sufficient (see Paul J, G. Kapteyn and Pieter VerLoren van Themaat, Introduction to the Law of the European Communities: From Maastricht to Amsterdam (London: Kluwer, 1998), pp. 326-31, 535-7.
3. See Samuel Krislov, Claus-Dieter Ehlermann and Joseph Weiler, 'The Political Organs and the Decision-Making Process in the United States and the European Community', in Mauro Cappelletti, Monica Seccombe and Joseph Weiler, eds, Integration through Law (Berlin: De Gruzter, 1986), pp. 3-10;
4. as well as Francis Snyder, 'The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques', Modern Law Review, 56 (1993), 19-54;
5. and Maria Mendriou, 'Non-compliance and the European Commission's Role in Integration', Journal of European Public Policy, 3 (1996), 1-22.
6. This is suggested in Tanja Börzel, 'Non-compliance in the European Union: Pathology or Statistical Artefact?' Journal of European Public Policy, 8 (2001), 803-24.
7. Ellen Mastenbroek, 'Surviving the Deadline: Transposition of EU Directives in the Netherlands', European Union Politics, 4 (2003), 371-55,
8. Enrico Borghetto, Fabio Franchino and Daniela Giannetti, 'Complying with Transposition Deadlines of EU Directives: Evidence from Italy', Rivista Italiana di Politiche Pubbliche, 1 (2006), 7-38, p. 9.
9. Prechal, Directives in European Community Law, p. 20.
10. Mastenbroek, 'Surviving the Deadline', p. 372.
11. See for example Robert Axelrod, The Evolution of Cooperation (New York; Basic Books, 1984);
12. and Clifford J. Carrubba, 'Courts and Compliance in International Regulatory Regimes', Journal of Politics, 67 (2005), 669-89.
13. Consider Axelrod, The Evolution of Cooperation, as well as Robert Axelrod and Robert Keohane, 'Achieving Cooperation Under Anarchy: Strategies and Institutions', World Politics, 38 (1985), 226-54.
14. Also George W. Downs, David M. Rocke and Peter N. Barsoom, 'Is the Good News about Compliance Good News about Cooperation?' International Organization, 50 (1996), 379-406;
15. and Jonas Tallberg, 'Paths to Compliance: Enforcement, Management and the European Union', International Organization, 56 (2002), 609-43.
16. See Carrubba, 'Courts and Compliance in International Regulatory Regimes'.
17. See, for example, Franceso Duina, 'Explaining Legal Implementation in the European Union', International Journal of the Sociology of Law, 25 (1997), 155-79;
18. Christoph Knill, 'European Politics: The Impact of National Administrative Traditions', Journal of Public Policy, 18 (1998), 1-28;
19. Christoph Knill and Andrea Lenschow, 'Coping with Europe: The Impact of British and German Administrations on the Implementation of EU Environmental Policy', Journal of European Public Policy, 5 (1998), 595-615;
20. James Caporaso, Maria Green Cowles and Thomas Risse, eds, Transforming Europe: Europeanization and Domestic Change (Ithaca, N.Y.: Cornell University Press, 2001); Peter Bursens, 'Why Denmark and Belgium Have Different Implementation Records: On Transposition Laggards and Leaders in the EU', Scandinavian Political Studies, 25 (2002), 173-95;
21. and Tanja Borzel and Thomas Risse, 'Conceptualizing the Domestic Impact of Europe', in Kevin Featherstone and Claudio Radaelli, eds, The Politics of Europeanization (Oxford: Oxford University Press, 2003), pp. 55-78.
22. Veto player theory is described in George Tsebelis, Veto Players: How Political Institutions Work (Princeton, N.J.: Princeton University Press, 2002).
23. See, for example, Heather Mbaye, 'Why National States Comply with Supranational Law', European Union Politics, 2 (2001), 259-81;
24. Marco Giuliani, 'Europeanization in Comparative Perspective: Institutional Fit and National Adaptation', in Kevin Featherstone and Claudio Radaelli, eds, The Politics of Europeanization (Oxford: Oxford University Press, 2003), pp. 134-57;
25. and Tanja Börzel, Tobias Hofmann and Carina Sprunk, 'Why Do States Not Obey the Law? Non-Compliance in the European Union' (unpublished, Leiden University, 2004).
26. See also Christian Jensen, 'Implementing Europe: A Question of Oversight' (unpublished, University of Iowa, 2005), pp. 5-6.
27. Adrienne Héritier, Dieter Kerwer, Christoph Knill, Dirk Lehmkuhl, Michael Teutsch and Anne-Cécile Douillet, Differential Europe: New Opportunities and Restrictions for Policy Making in Member States (Lanham, Md.: Rowman & Littlefield, 2001); and Christoph Knill, The Europeanisation of National Administrations: Patterns of Institutional Adjustment and Persistence (Cambridge: Cambridge University Press, 2001), as well as Christoph Knill, 'Reforming Transport Policy in the United Kingdom: Concurrence with Europe but Separate Developments', in Héritier et al., eds, Differential Europe, pp. 57-98.
28. See Richard Perkins and Eric Neumayer, 'Do Membership Benefits Buy Regulatory Compliance? An Empirical Analysis of EU Directives 1978-1999' (working paper available at http://www.lse.ac.uk/collections/ geographyAndEnvironment/last accessed on 24 July 2006.
29. See for example Risto Lampinen and Petri Uusikylä, 'Implementation Deficit: Why Member States Do Not Comply with EU Directives?' Scandinavian Political Studies, 21 (1998), 231-51;
30. Mbaye, 'Why National States Comply with Supranational Law'; and Perkins and Neumayer, 'Do Membership Benefits Buy Regulatory Compliance?'
31. Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Mass.: Harvard University Press, 1995).
32. See Chayes and Chayes, The New Sovereignty; and Tallberg, 'Paths to Compliance', pp. 611-13.
33. These studies include Giuseppe Ciavarini Azzi, ed., The Implementation of Community Law by the Member States (Maastricht: European Institute of Public Administration, 1985);
34. Heinrich Siedentopf and Jacques Ziller, Making European Policies Work: The Implementation of Community Legislation by the Member States (London: Sage, 1988);
35. Spyros A. Pappas, National Administrative Procedures for the Preparation and Implementation of Community Decisions (Maastricht: European Institute of Public Administration, 1995);
36. Knill, The Europeanisation of National Administrations; Gerda Falkner, Oliver Treib, Miriam Hartlapp and Sabine Leiber, Complying with Europe (Cambridge: Cambridge University Press, 2005).
37. See Marco Giuliani, 'EU Compliance: Macro, Meso or Not Institutions at All?' (URGE Working paper 6/2004 available at < www.urge.it>).
38. Mbaye, 'Why National States Comply with Supranational Law'.
39. See Lampinen and Uusikylä, 'Implementation Deficit'; and Mbaye, 'Why National States Comply with Supranational Law'.
40. See Jensen, 'Implementing Europe', p. 2.
41. See Mastenbroek, 'Surviving the Deadline'; and Borghetto, Franchino and Giannetti, 'Complying with Transposition Deadlines of EU Directives".
42. See Mastenbroek, 'Surviving the Deadline"; and Borghetto, Franchino and Giannetti, 'Complying with Transposition Deadlines of EU Directives'; and Bernard Steunenberg, 'Turning Swift Policymaking into Deadlock and Delay: National Policy Coordination and the Transposition of EU Directives', European Union Politics, 7 (2006), 293-319.
43. See Christer Jonsson, and Jonas Tallberg, 'Compliance and Post-Agreement Bargaining", European Journal of International Relations, 4 (1998), 371-408;
44. Tanja Börzel, 'Why There is no "Southern Problem": On Environmental Leaders and Laggards in the EU', Journal of European Public Policy, 7 (2000), 141-62;
45. U1f Sverdrup, 'An Institutional Perspective on Treaty Reform: Contextualizing the Amsterdam and Nice Treaties', Journal of European Public Policy, 9 (2002), 120-40.
46. For example, Markus Haverland, 'The Impact of the European Union on National Environmental Policies', in Kevin Featherstone and Claudio Radaelli, eds, The Politics of Europeanizaiion (Oxford: Oxford University Press, 2003), pp. 203-23;
47. Knill, 'Reforming Transport Policy in the United Kingdom"; Gerda Falkner, Miriam Hartlapp, Sabine Leiber and Oliver Treib, 'Non-Compliance with EU Directives in the Member States: Opposition through the Backdoor?' West European Politics, 27 (2004), 452-73.; as well as Falkner et al., Complying with Europe.
48. For example Mastenbroek, 'Surviving the Deadline'; and Borghetto et al., 'Complying with Transposition Deadlines of EU Directives'.
49. For example Tanja Börzel, 'Pace-Setting, Foot-Dragging, and Fence-Sitting: Member State Responses to Europeanization', Journal of Common Market Studies, 40 (2002), 193-214; and Mbaye, 'Why National States Comply with Supranational Law'.
50. Giuliani, 'Europeanization in Comparative Perspective'.
51. See also Mastenbroek, 'Surviving the Deadline'; and Steunenberg, 'Turning Swift Policymaking into Deadlock and Delay'. Ulf Sverdrup, 'Administering and Implementing European Legislation' (paper prepared for the ECPR Joint Sessions in Granada, Spain, 2005), p. 7, notes that more than half of the infringement cases are based on private party complaints and contributes this to the limited information and resources available to the Commission.
52. Prechal, Directives in European Community Law, pp. 5-6.
53. Austria notified the Commission of ninety-two transposition measures for the Council Directive 96/43/EC (CELEX Database).
54. On 30 May 1991, the Court decided in favour of the Commission against the Federal Republic of Germany regarding the nature of the measure transposing the Air Pollution Directive 80/779. In this decision, the Court condemned the use of a general administrative provision, referred to as the 'technical circular "air" of 1974', because of the absence of a general mandatory rule. The limited area of application and inability for individuals to know and be able to assert their rights led the Court to criticize the use of circulars in Germany (EUR-Lex, Case C-361/88).
55. For example, Mastenbroek, 'Surviving the Deadline'; Giuliani, 'EU Compliance'; Michael Kaeding, 'Determinants of Transposition Delay in the European Union' (paper prepared for the ECPR Joint Sessions in Granada, Spain, 2005).
56. These data have been collected within the context of a four-year interdisciplinary research project funded by the German Research Foundation (DFG) entitled 'Europäische Integration und Politische Union: Eine politökonomische Untersuchung der Unitarisierungsauswirkungen der Europäischen Union auf die Gesetzgebungen der Mitgliedstaaten im Rahmen des Schwerpunktprogramm 1142 Institutionelle Gestaltung föderaler Systeme: Theorie und Empirie',
57. We note that any reference to national implementing measures does not necessarily mean that these measures are comprehensive, in conformity with Community law or adequately enforced. The data simply list measures notified by the member states and published by CELEX.
58. See Thomas König, Brooke Luetgert and Tanja Dannwolf, 'Quantifying European Legislative Research: Using CELEX and PRELEX in EU Legislative Studies', European Union Politics, 7 (2006), 553-74.
59. Using the full-text CELEX database requires some experience, such as using a downloading technology, extracting and coding textual information, and differences in legislative statistics and legal characteristics might thus be due to user failure. For more detailed information, see König, Luetgert and Dannwolf, 'Quantifying European Legislative Research'.
60. Although detailed case studies on selected directives raise questions concerning the validity of the EU official statistics, we have no reason to suspect a systematic bias within the CELEX data. Descriptive statistics do not reveal visible country or sector specific biases. The reports over time are equally stable, suggesting that our sample is, at the very least, solidly representative of national transposition efforts. A few studies have supplemented the official CELEX data with data from national ministries and explored transposition delay within a given policy area or member state (e.g., Mastenbroek, 'Surviving the Deadline'; and Steunenberg, 'EU Policy, Domestic Interests and the Transposition of Directives'), but, while this method may improve information about a specific case or national record, we feel that introducing multiple national data sources may contribute to a bias on member-state transposition records, particularly because these resources are not equally accessible for all member states. Our research suggests that member states have established quite different standards in their documentation of legislative activities, and only a few member states provide electronic access to longitudinal data on legislative characteristics and legislators' behaviour.
61. We exclude the ten new central and eastern European member states because their accession dated only from May 2004.
62. Kaeding, 'Determinants of Transposition Delay in the European Union'.
63. Pending directives refer to those for which the stipulated deadline was later than 1 November 2004 - the day on which we last updated our data.
64. See Tallberg, 'Paths to Compliance', p. 623. Those directives lacking a documented transposition deadline in our sample include both amending legislation applicable to select countries following EU accession as well as directives with country-specific deadlines outlined in detailed appendices. For the purposes of this study, we have elected not to hand-code these special cases, but refer to the larger body of directives with clearly documented deadlines broadly applicable to all member states.
65. This definition classifies transposition measures enacted in the same year (even if they were adopted after the exact date of the specified deadline) as timely transposed measures.
66. From a total of 17, 112 observations, only 1,404 refer to national responses in the area of energy/environment. By contrast, roughly half of all observations belong to the internal market area and one third to agriculture.
67. We refer to Carrubba, 'Courts and Compliance in International Regulatory Regimes'.
68. Giuliani, 'Europeanization in Comparative Perspective'; and Mastenbroek, 'Surviving the Deadline'.
69. For more information, see König et al., 'Quantifying European Legislative Research'.
70. The EU legislative process variable allows each directive to be classified according to its title as a Commission directive, a Council directive or a Directive of the Council and EP.
71. Mastenbroek, 'Surviving the Deadline'.
72. Fabio Franchino, The Powers of the Union: Delegation in the EU (Cambridge: Cambridge University Press, 2006), pp. 286-7.
73. Franchino, The Powers of the Union, pp. 30-1.
74. Perkins and Neumayer, 'Do Membership Benefits Buy Regulatory Compliance?'
75. The preference of a coalition government can also be estimated by weighting the legislative seats held by each coalition party (as suggested in Ian Budge, Hans-Dieter Klingemann, Andrea Volkens, Judith Bara and Eric Tanenbaum, Mapping Policy Preferences: Estimates for Parties, Electors and Governments 1945-1998 (Oxford: Oxford University Press, 2001), p. 166), but using this weighted measure does not significantly alter our results.
76. Depending on the period of investigation used in future studies, an alternative to this measure may be the evaluation of 'distributional' cleavages as discussed in Christina Zimmer, Gerald Schneider and Michael Dobbins, 'The Contested Council: The Conflict Dimensions of an Intergovernmental Institution', Political Studies, 53 (2005), 403-22.
77. Mbaye, 'Why National States Comply with Supranational Law'.
78. Following the logic in Carrubba, 'Courts and Compliance in International Regulatory Regimes'.
79. This literature includes studies such as Adrienne Héritier, 'The Accommodation of Diversity in European Policy-Outcomes and its Outcomes; Regulatory Policy as a Patchwork', Journal of European Public Policy, 3 (1996), 149-76; Knill and Lenschow, 'Coping with Europe'; Maria Green Cowles, James Caporaso and Thomas Risse, Europeanization and Domestic Change: Transforming Europe (Ithaca, N.Y.: Cornell University Press, 2001); Héritier et al., Differential Europe; Knill, The Europeanisation of National Administrations; Tanja Börzel and Thomas Risse, 'When Europe Hits Home: Europeanization and Domestic Change' (EUI Working Papers (2000) RSC No. 2000/56); Borzel and Risse, 'Conceptualizing the Domestic Impact of Europe'. Mastenbroek, 'Surviving the Deadline'.
80. See Markus Haverland, 'National Adaptation to the European Union: The Importance of Institutional Veto Points', Journal of Public Policy, 20 (2000), 83-103; Haverland, 'The Impact of the European Union on National Environmental Policies'; Antoaneta Dimitrova and Bernard Steunenberg, 'The Search for Convergence of National Policies in the European Union: An Impossible Quest?' European Union Politics, 1 (2000), 201-26.
81. Steunenberg, 'Turning Swift Policymaking into Deadlock and Delay'.
82. These findings are confirmed in Mastenbroek, 'Surviving the Deadline'; and Borghetto et al., 'Complying with Transposition Deadlines of EU Directives'.
83. Giuseppe Ciavarini Azzi, 'The Slow March of European Legislation: The Implementation of Directives', in Karlheinz Neunreither and Antje Wiener, eds, European Integration after Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford: Oxford University Press, 2000), pp. 52-68.
84. Lampinen and Uusikylä, 'Implementation Deficit'; Mbaye, 'Why National States Comply with Supranational Law'; Jensen, 'Implementing Europe'.
85. Giuliani, 'Europeanization in Comparative Perspective'; Jensen, 'Implementing Europe'.
86. Arend Lijphart, Patterns of Democracy: Government Form and Performance in Thirty-six Countries (New Haven, Conn.: Yale University Press, 1999).
87. Mbaye, 'Why National States Comply with Supranational Law'; Giuliani, 'Europeanization in Comparative Perspective'.
88. Perkins and Neumayer, 'Do Membership Benefits Buy Regulatory Compliance?'
89. See Mastenbroek, 'Surviving the Deadline'; and Borghetto et al., 'Complying with Transposition Deadlines of EU Directives'.
90. For our analysis, we count the 1,388 cases of notified national measures lacking an adoption date to Category VII. Eliminating these cases from our sample does not affect the size of the coefficients estimated below. A probit analysis of the selection stage model and a separate ordered probit analysis of notification timeliness reveal that these coefficients remain significant in the reduced sample.
91. See James Heckman, 'The Common Structure of Statistical Models of Truncation, Sample Selection, and Limited Dependent Variables and a Simple Estimator for Such Models', Annals of Economic and Social Measurement, 5 (1976), 475-92;
92. and Christopher Achen, The Statistical Analysis of Quasi Experiments (Berkeley: University of California Press, 1986).
93. See William Reed, 'A Unified Statistical Model of Conflict Onset and Escalation', American Journal of Political Science, 44 (2000), 84-93;
94. Simon Hug, 'Selection Bias in Comparative Research: The Case of Incomplete Datasets', Political Analysis, 11 (2003), 255-74;
95. Anne Sartori, 'An Estimator for Some Binary-Outcome Selection Models Without Exclusion Restrictions', Political Analysis, 11 (2003), 111-38;
96. and Thomas Plümper, Christina Schneider and Vera Troeger, 'The Politics of Eastern Enlargement: Evidence from a Heckman Selection Model', British Journal of Political Science, 36 (2005), 17-38.
97. See Sartori, 'An Estimator for Some Binary-Outcome Selection Models Without Exclusion Restrictions', as well as Patrick Brandt and Christina Schneider, 'What's the Size? Does it have any Power? Questions about Hypothesis Tests in Selection Models' (paper prepared for the Annual Meeting of the Midwest Political Science Association, 2004).
98. We refer to E18-24 of the LIMDEP manual for this description of the model (William Greene, LIMDEP Version 8.0 Econometric Modelling Guide (New York: Econometric Software, 2002)).
99. In our example: number of member states notifying after the deadline or not at all, size of the EU core, Council decision rule applied, number of actors involved in the legislative process, net EU receipts minus net payments, country dummies for Austria, Sweden and Finland. Also note that the selection equation should include a constant and that, in our case, the regressors in the selection equation are not repeated in the specification equation; this eases the interpretation of our results.
100. Franchino, The Powers of the Union; Giuliani, 'Europeanization in Comparative Perspective'; and Mastenbroek, 'Surviving the Deadline'.
101. See Thomas König, 'Divergence or Convergence? From Ever-growing to Ever-slowing European Legislative Decision Making', European Journal of Political Research, 46 (2007), 417-44.
102. This effect is also visible when we include the interaction effect of a QMV dummy and EU conflict.
103. Perkins and Neumayer, 'Do Membership Benefits Buy Regulatory Compliance?'
104. Earlier results from a binomial probit model on notification as determined by the same constellation of EU level variables reveal that when the external pressure to comply declines (i.e. other member states have also failed to notify promptly), the likelihood for notification also declines. This effect is relatively strong and significant in the standard probit context.
105. Mastenbroek, 'Surviving the Deadline'.
106. Steunenberg, 'Turning Swift Policymaking into Deadlock and Delay'.
107. Mbaye, 'Why National States Comply with Supranational Law'; and Giuliani, 'Europeanization in Comparative Perspective.
108. Lijphart, Patterns of Democracy.
109. Jensen, 'Implementing Europe'.
110. Omitting the value-added shares and the federalism index did not significantly influence our results.
111. Due to the relative size of the coefficients on the country variables, future research may wish to consider alternative explanatory factors for transposition delay such as: sector-specific indicators of administrative capacity, growth or decline, previous infringement proceedings, public support for European integration, corruption or directive-specific measures of complexity or consensus.
112. Sensitivity measures the number of actual 1s (or notifications) correctly predicted. The specificity of our model (actual 0s correctly predicted) rests on 50 per cent.
113. Out of 6,279 cases of on-time (Category III) responses, 3,350 are correctly predicted, and 4,519 out of 6,626 late responses (Categories IV-VI) are also correctly predicted.
114. Falkner et al., Complying with Europe.
115. Using infringement data gathered in the Commission monthly bulletins, we find that the likelihood of receiving a formal letter is strongly negatively correlated with the notification of national measures. This trend increases with the level of the infringement proceedings, and decreases with each additional notified transposition measure.
116. See Robert Thomson, Frans Stokman, Christopher Achen and Thomas König, The European Union Decides (Cambridge: Cambridge University Press, 2006).