National enforcement regimes in the European Union: A much needed research agenda
Failure to comply with European Union (EU) law is one of the main challenges facing the EU. In 2016 infringement procedures rose to a five-year peak. Compliance deficits, that is, failures to adopt EU law standards and requirements, are not a new concern. Since 1984, the European Commission has monitored on an annual basis the performance of Member States in key areas of the application of EU law, and reports on the implementation of EU regulations and directives. The Juncker Commission 2014-2019 made compliance a political priority as part of the Commission's strengthened drive for better law making. A new strategy and measures to increase compliance with EU law were announced as a result. See earlier blog here.
The reasons to take compliance deficits seriously are many. Failures to comply with EU law damage the effectiveness of EU policies, deprive EU citizens and businesses of legally conferred rights, and undermine the trust on which the EU depends. Understanding the conditions for EU law compliance has been a scholarly concern for some time now. Different explanations for the variations in compliance with EU law exist: goodness of fit explanations, bureaucratic cultures, veto points, etc. The particular role of enforcement – that is, a public action with the objective of preventing or responding to the violation of a norm - has also been examined. Enforcement is considered to be a requisite to ensure the de facto adoption of the legislation: enforcement increases the costs of failing to meet legal requirement, so non-abidance to the rule becomes an unattractive option.
However, although ensuring the adoption of EU law is a shared responsibility of EU institutions and EU member states, scholarly attention has been paid almost exclusively to the enforcement actions of the EU Commission, the Court of Justice of the European Union and EU regulatory agencies. Far less attention has been given to the EU member states, despite the fact that they are central actors responsible for the implementation, application and enforcement of EU policy within their frontiers. In fact, we know remarkably little of the powers, the actions and the resources committed by the EU member states to ensure the enforcement of EU legislation, let alone the impact of these national enforcement variations on the degree of compliance with EU law. To address this deficit, there are three crucial research questions for this proposed research agenda:
What policy instruments are used in the different EU member states to discipline failures to comply with EU standards and legislation? The interest here is to examine and compare the disciplinary measures that national regulators may initiate against national actors that have failed to comply with EU requirements: warnings, fines, criminal actions? Cross-national variations in the type of deterring mechanisms available to national regulators may provide clues as to why certain EU countries apply EU legislation better than others.
What activities are devoted to apprehend and penalise actors who have failed to comply with EU standards in the different EU member states? The question here asks about the type and frequency of monitoring and inspecting activities to detect non-compliance on the ground. It seeks to identify the specific deterring actions that Member States enact to penalise non-compliant behaviours.
What human and budgetary resources are committed to detect compliance failures exist in different EU countries? As monitoring or disciplining all compliance failures is either inefficient or simply infeasible, Member States have to make decisions regarding the resources dedicated to enforcement. Here we ask about the resources channelled into enforcement in different EU Member States– in inspectorates, policing and justice bodies, and how it might explain the cross-national variations in compliance with EU law.
Our UACES Research Network on Effective Enforcement of EU Law and Policy is one key initiative to address the gaps in the existing academic literature. Practitioners have also established networks to share information and compare practices on how enforcement happens in different jurisdictions within the EU. In the environment sector, for instance, professionals working in different EU Member States have established European Network of Prosecutors for the Environment, the European Union Forum of Judges for the Environment, and the European Union Network for the Implementation and Enforcement of Environmental Law. The creation of these networks is the expression of a need to understand the nature of the different enforcement regimes co-existing within the EU and its implications. Furthering the development of a research agenda on the cross-national variations in the in the enforcement of EU law is necessary to provide a more solid and nuanced overview of the overview of the nature and functioning of the EU. law is necessary to provide a more solid and nuanced overview of the nature and functioning of the EU.
Monica Garcia Quesada PhD (LSE) is a researcher based in Brussels (Belgium). She has worked as Senior Researcher at the Institut de Sciences Politiques Louvain-Europe at the Catholic University of Louvain (UCL) and at the Building, Architecture and Town Planning Department at the Free University of Brussels (ULB). Her work has been published in the Journal of Public Policy, the International Review of Administrative Sciences and the Journal of Public Administration, amongst others.