Compliance with EU law in times of European disintegration
Over recent decades, the EU has been exposed to multiple crises that have sparked a process of increased Euroscepticism and disintegration. In light of this, scholars have argued that Member States’ compliance with EU law declines and that the combination of declining compliance and reduced means to enforce compliance by the European Commission eventually erode the core EU values (Vollaard, 2018: 250; Webber, 2014: 342). However, empirical evidence is scarce. In a recent study, I co-authored with Karl Loxbo, I have therefore asked: have transposition and enforcement (thus compliance) of EU law increased or decreased over time? And what are the factors that explain the compliance behaviour of Member States? We explored non-compliance with all Single Market directives enacted between 1997 and 2016 and studied the effects of domestic factors such as government efficiency, party system fragmentation, Euroscepticism, and the support for the radical right on Member States’ compliance performance.
Defining European disintegration and factors that influence non-compliance
We define disintegration as a decline in common policies and the EU’s capacity to adopt and implement political decisions and argue that one component of disintegration is the expression of political dissatisfaction by Member States in form of (partial or full) exits to the system. This can be also expressed in the form of non-compliance.
Previous studies have identified several factors that impede compliance. However, these studies focus on the era before the emerging of multiple crises. They do not take into account for example the 2008 financial or economic crisis or the increased politicisation of the EU. In our study, we focus on this time frame of multiple crises and argue that the economic crisis in 2008 and the austerity that followed led to administrative work overload and financial cuts and decreased the government capacity of certain Member States to implement EU law. Moreover, we theorise that political factors such as party system fragmentation, growing Euroscepticism, and the rising support for radical right parties in the Member States became increasingly important to explain Member States’ compliance behaviour and have made the implementation of and compliance with EU law more complex. Due to the political and economic turbulences that enhanced the economic and political asymmetries between the EU countries over this period, we also argue that the culturally induced compliance cleavages among Member States have been further enhanced.
To study the effects of increased disintegration on Member States’ compliance with EU law, we focus on the Single Market as a policy area. Drawing on the data from the European Commission as well as its Single Market Scoreboards, we created a database with all directives pertaining to and ensuring the functioning of the Single Market over a 20-year period, between 1997 and 2016 (total of 1019 directives). We model the effects of government capacity (using the World Bank measurement of ‘Government Effectiveness’), party system fragmentation and support for the radical right (Comparative Political Data Set), and party system Euroscepticism (Manifesto Project Dataset), on our two dependent variables: the transposition deficit (the gap between directives enacted at EU level and their transposition into national law by the due date) and the infringement procedures brought by the European Commission against a Member State under Articles 258-260 TFEU, and use panel regression analysis.
Increased compliance and harmonisation within the Single Market
Instead of finding a declined compliance performance by Member States over time, we find the exact opposite with regard to both the transposition deficit and infringement procedures. While our variables were related to significant variations in the transposition deficit and infringement procedures at the beginning of the time series, it is clear that these effects have declined over time. With regard to the main effects, in all 28 Member States between 1997 and 2016, our results in fact indicate that greater government capacity increases the transposition deficit and the infringement procedures. Additionally, while party system fragmentation is primarily unrelated to compliance, Euroscepticism also predicts a slightly lower transposition deficit but has no effect on infringement procedures. The only result that is somewhat in line with our hypotheses is the finding that the increased electoral strength of radical right parties yields a slightly higher transposition deficit. However, when accounting for the time dimension in our data, we find that these effects of all four variables have vanished almost completely over time.
The same tendency of convergence, rather than disintegration, is apparent when reviewing the impact of the economic performance of Member States. Our analysis shows that over time the effects of government debt and GDP growth, which were significant until the mid-2000s, have ceased to affect variations in the transposition deficit and the infringement procedures in spite of the major economic crisis in 2008. Even more so, the increased divisions between countries with different compliance cultures diminished. Thus, we find a strong trend towards improved compliance and harmonisation.
Taken together, our findings not only suggest that factors such as government debt, GDP growth/capita, government deficit, government capacity, and, above all, domestic politics become gradually decoupled from the European integration, but also that deep-rooted cultural differences have become increasingly irrelevant to explain government behaviour in compliance. Our results, in other words, sharply contradict the argument that the economic and political turbulence initiated reduced capability and willingness of some Member States to integrate. This demonstrates that the transposition of EU Single Market directives into national law has become decoupled from the political process and is largely unaffected by external events.
Overall, our results reveal a strong integration logic among countries with vastly different compliance cultures in the midst of one of the worst economic and political crisis since the existence of the EU. Therefore, our findings clearly demonstrate that the process towards increased harmonisation appears to be stronger than ever in the central field of the EU – the Single Market.
Where do we go from here: A changed enforcement culture?
While our study is limited to the Single Market, and it is possible that there may be different patterns in other policy areas, our surprising results may be explained by a profound change in the ‘enforcement culture’ of both the EU and its Member States. Several reasons for this phenomenon are discussed. First, new governance instruments, such as the EU Pilot and SOLVIT, were introduced within our investigated timeframe. While the EU Pilot (now abandoned) had been introduced to improve the problem-solving dialogue between the European Commission and its Member States prior to initiating an infringement procedure, SOLVIT is an online database that enables citizens and businesses to submit complaints to nationally based centres in case of non-compliance with Single Market rules. Second, the EU's direct enforcement powers and authorities were expanded by an increasingly number of EU enforcement authorities (Scholten, 2017). Third, the resources of the European Commission to bring actions for non-compliance decreased (limited capacity, less budget, shortage of workforce). Fourth, enforcement was ‘outsourced’ to private litigants who could bring actions challenging non-transposition of directives by a Member State directly before their national courts (Hofmann, 2018). Fifth, the European Commission has developed new instruments to strengthen Member States’ compliance capacity and lastly, the nature of EU law has changed: EU legislation has become less demanding on the Member States by amending existing legislation rather than creating new legislation (Börzel and Buzogány, 2019). This means that the amended directives require less effort to implement.
However, while these scholars find some possible explanations to the trend of increased compliance, these studies still fail to sufficiently explain our results. More importantly, these studies have further downplayed the institutional response of the European Commission to non-compliance. Even though the pursuit of non-compliance in the EU is highly dependent on the European Commission’s policies and the European Commission is a central agent of European integration, no study to date has systematically analysed its approach to member states’ compliance with EU law over time. Therefore, it is argued that future studies should focus on the European Commission’s approach to compliance and its response to Member States’ non-compliance over a long timeframe. This will be crucial to gain an understanding for this changed ‘enforcement culture’.
Author: Brigitte Pircher is an Assistant Professor in European Studies at the Department of Political Science at Linnaeus University and Postdoc at the Department of International Economics, Government and Business at Copenhagen Business School:
The full study can be found in the Journal of Common Market Studies
Pircher B and Loxbo K (2020) Compliance with EU law in times of disintegration: exploring changes in transposition and enforcement in the EU member states between 1997-2016. JCMS: Journal of Common Market Studies 58(5): 1270-1287, https://doi.org/10.1080/09644016.2019.1549772
References
Börzel TA and Buzogány A (2019) Compliance with EU environmental law. The iceberg is melting. Environmental Politics 28(2): 315-341.
Hofmann T (2018) How long to compliance? Escalating infringement proceedings and the diminishing power of special interests. Journal of European Integration 40(6): 785-801.
Scholten M (2017) Mind the trend! Enforcement of EU law has been moving to ‘Brussels’. Journal of European Public Policy 24(9): 1348-1366.
Vollaard H (2018) European Disintegration. A Search for Explanations. Utrecht: Palgrave Macmillan.
Webber D (2014) How likely is it that the European Union will disintegrate? A critical analysis of competing theoretical perspectives. European Journal of International Relations 20(2): 341-365.
