The European Community (EC) considers itself a community of law.... integration is perceived primarily as "integration through law" (Cappelletti et... Dirk Peters

The European Community (EC) considers itself a community of law.... integration is perceived primarily as "integration through law" (Cappelletti et... Dirk Peters

Dirk Peters
Making European Law Work:
Why Member States (Fail to) Implement EC Directives1
- Draft 1 Introduction
The European Community (EC) considers itself a community of law. European
integration is perceived primarily as "integration through law" (Cappelletti et al. 1986).
This attempt to realize European integration by way of creating common legal norms
has resulted in an often lamented proliferation of legal acts issued by the EC2. However,
issuing legal acts alone does not advance European integration. These regulations and
directives need to be put into practice by member states if they are to have any effect at
all. National implementation of EC law, therefore, is a crucial aspect of European
integration. Yet, it also is an aspect that has attracted only little attention by European
policy makers and scholars of European integration alike. Especially the question
whether there are patterns of implementation across functional domains (is there
systematic variation in implementation rates between member states?) is a seriously
underresearched issue. Peter M. Haas has highlighted this desideratum in an article for
the Journal of European Public Policy some time ago and suggested ways of filling this
gap (Haas 1998). In particular, he proposed to use general theories of International
Relations and Comparative Politics stressing state agency to develop explanations for
the implementation behavior of EU member states.
In this article I pick up on these suggestions and develop two models to explain
variation in implementation rates of EU member states. In two respects, however, I will
depart from the path charted by Haas. First, my approach is more narrow than the
research program outlined by Haas, because I will confine myself to the exploration of
rationalist arguments about implementation behavior. I exclude constructivist
approaches mainly for practical reasons (i.e. limitations of time and space) and not to
suggest that they do not have to offer some valuable insights into the issue at hand. This
more focused approach enables me to elaborate the explanatory models in more detail.
Thus, second, I will move beyond outlining avenues for future research and instead
1
I am grateful for numerous helpful comments on earlier drafts of this article by Peter Mayer, Volker
Rittberger and Wolfgang Wagner, as well as by Rainer Baumann, Tanja Börzel, Andreas Hasenclever,
Volkhart Heinrich, Klemens Käppeler, Annette Lutz, Manuela Reichle, Regina Stegmüller and Klaus
Stodick.
2
The European Community (EC) is the first pillar of the European Union (EU). Because all binding
legal acts are issued by organs of the EC I will employ the terms "EC law," "EC directives" etc.
throughout, but speak of the "EU" when I refer to the organization as a whole.
2
elaborate the models to the point where I am able to derive hypotheses which can be
tested empirically.
Hence, in what follows, I will develop and preliminarily test two rationalist explanations
for the national variation in the implementation rates of EC diretives. The first model,
which will be outlined in section 4, is based on the assumptions of the rational
institutionalist school of thought in International Relations theory. Two hypotheses are
derived from this model which link a state’s rational self-interest to its implementation
behavior. The second model combines elements of liberal International Relations theory
and of Comparative Politics. It opens up the "black box" of the state – national decisions
about implementation or non-implementation of EC law are viewed as the outcome of
complex decision-making processes in which a variety of societal actors are involved.
From this model two hypotheses will be derived which link national decision-making
procedures to a state's implementation rate (section 5). Both models are tentatively
tested in section 6. Due to limitations of available reliable data, I will restrict the test to
the legal implementation of EC directives, i.e. to the transposition of EC directives into
national law. It will turn out that both a state's capacity to comply with EC law and the
role of domestic veto players are crucial for explaining differences in implementation
behavior. Section 7 summarizes the findings and outlines their policy implications.
Before the models are developed, however, I will first briefly describe how the
implementation of EC law works at all and also briefly review the literature on the
implementation of EC directives in sections 2 and 3.
2 The Implementation of EC Directives
While EC policies are decided on in "Brussels", i.e. at European level, they are put into
practice only at the national level. Consider an attempt to improve air quality in EU
member states. The Commission may draft a clean-air directive providing for cuts in the
emission of certain pollutants. After some intra-EC bargaining, this directive may be
adopted by EC organs (the Council and the European Parliament). However, to make
this policy work the EC depends crucially on national actors: First, the member states
need to transpose the directive into national law; i.e. the national parliament or some
other national institution has to pass a law that contains essentially the rules laid down
in the directive (transposition or legal implementation).3 Second, this national law has to
be applied by the national administration (administrative implementation). Third,
individuals need to comply with the law, i.e. producers of pollutants have to actually cut
3
In the EC context, legal implementation is unique to directives. All other binding legal acts issued by
the EC (regulations and decisions) take direct effect and need not be transposed into national law (see
Article 248 [189] TEC).
3
their emissions (compliance). Only then there is, finally, a chance for an actual reduction
in the overall emission of pollutants and thus for clean air (effectiveness).4
While the responsibility for implementation lies primarily at the national level, the
failure to implement EC law can have important repercussions on the European level. It
can "cause discontinuities in the Community’s legal system, create asymmetries among
states, and undermine the effects of Community policies." (Mendrinou 1996: 19 n. 9). In
order to avoid such detrimental repercussions, the Commission watches over legal and
administrative implementation and attempts to ensure that member states fulfill their
obligations. Yet it is difficult for the Commission to monitor implementation efforts, let
alone to actually influence implementation behavior. The only phase which can reliably
be monitored is legal implementation, because member states have a duty to report on
the measures they have taken to transpose a directive into national law (Nugent 1999:
134). Failures at administrative implementation are much harder to detect because there
are no national reports on administrative implementation and the Commission – due to
its limited resources – is by no means able to effectively ensure the correct
administrative application of more than one thousand directives in 15 member states
(From/Stava 1993: 62-64; Nugent 1999: 137). Moreover, once it has detected
implementation failure, the Commission can hardly make the respective member state
change its behavior because the Commission's ability to impose sanctions is quite
limited. Only since the Treaty on the European Union (TEU) took effect in 1993, the
European Court of Justice (ECJ) has the possibility to impose fines on recalcitrant
member states.5
3 Research on Non-Implementation
Despite the importance implementation has for European integration, there has been
little effort to systematically identify the causes of non-implementation in EU member
states. To be sure, there is a considerable number of case studies on the implementation
of individual EC directives in one or more member states (e.g. Brenner 1996, Edwards,
V. 1996, Nettesheim 1999, Schiøler Sørensen 1996). However, most of these studies are
concerned with the legal aspects of implementation only. They describe in great detail
the transposition of a single directive in one or more member states pointing out factors
that made implementation in this special case easy or difficult. They do not claim to
explain the implementation decision, that is to uncover the causes of the implementation
4
This distinction of the several phases of implementation is borrowed from Andresen et al. (1995: 27).
For details of the infringement procedure which is laid down in Article 226 [169] TEC, see Nugent
(1999: 134-138) and Oppermann (1991: 630-635). For the "new" possibility to impose fines on member
states, see Article 228 [171] para. 2 TEC.
5
4
or non-implementation of EC directives in general.6 A second group of studies attempts
to find such causes by comparing the implementation of several EC directives or the
process of implementation in general in EU member states. These studies, however,
tend to be either rather eclectic, summing up potential causes of implementation failure
and paying less attention to systematically linking causes and effects (Mosley 1996;
Siedentopf/Ziller 1988; Schwarze et al. 1990); or to focus their attention on a single
cause, e.g. involvement of national parliaments in the formulation of directives (Martin
1995). Only Peter Haas (1998) has made an attempt to systematically formulate coherent
theoretical models of implementation behavior, especially compliance with EC
directives. However, he does not formulate testable hypotheses, but only discusses
"possible elements for a research program on understanding patterns of compliance with
EU legislation, focusing on manipulable variables which may influence a state’s
decision to comply" (Haas 1998: 18).
Hence, non-implementation of EC law has not yet been systematically explained. By
developing and (preliminarily) testing two models of implementation I attempt to
contribute to such an explanation.
4 Rational Institutionalism
4.1 Basic Assumptions
The first of the two explanatory models presented here is based on the rational
institutionalist school of thought in International Relations Theory, which was
influenced most importantly by the work of Robert Keohane (1984, 1989a,b).7 Rational
institutionalists regard states as unitary, rational actors which act according to
calculations of costs and benefits. State behavior reflects primarily the conditions set by
the international system, while the internal characteristics of a state are of less
importance (Hasenclever et al. 1997: 24-26; Keohane 1984: 25f., 1989a: 1f., 7f.;
Slaughter Burley 1993: 218). Moreover, rational institutionalism posits that states (or at
least "advanced market-economy countries" (Keohane 1984: 6) which exist in zones of
"complex interdependence" and thus do not have to fear attack by their neighbors
(Keohane/Nye 2001: 23f.)) are rational egoists: They strive for absolute gains and do not
6
The only exception from this pattern which has come to my attention is Duina (1997), who attempts to
show the effect of existing domestic institutions on the probability that a directive is implemented by
analyzing the implementation of the equal pay directive in three countries.
7
Rational institutionalism also goes by the name of "neoliberal institutionalism" (Keohane 1989a). To
avoid confusion with the liberal school of thought, introduced in the next section, which rests on a slightly
different notion of "liberalism", I employ the term "rational institutionalism", which reflects the basic
assumptions of this school of thought more clearly.
5
care about the gains of other states (Hasenclever et al. 1997: 29; Keohane 1984: 27;
Krasner 1982: 195).
That states care only about their own gains and not about those of others facilitates
cooperation in situations in which states can realize joint gains. But this does not imply
that states will cooperate in every situation in which joint gains would be attainable.
Rather there are "problematic social situations" (Raub/Voss 1986: 86-88) in which
cooperation is hampered by uncertainty about the other states’ behavior. Every state
fears that the others could choose to act in a way that would – in combination with its
own behavior – prevent it from realizing any gains at all (Keohane 1989b: 64).
Therefore, a state will join the cooperation only when it can be certain (at least to some
degree) about the other states' behavior.
4.2 Cooperation in Problematic Social Situations
The most important problematic social situations in international politics are
coordination games ("dilemmas of common aversions") and prisoners' dilemma games
("dilemmas of common interests") (Stein 1982: 304-311; Snidal 1985a: 926-937).8 A
typical example of a coordination game in the EC context is the standardization of
industrial goods, for instance of certain industrial components. All states whose
industries import and export those components are interested in setting some common
standard for their size or quality in order to facilitate their exchange. Nonetheless, it
might be difficult for them to agree on one such common standard, because every state
will try to get that standard accepted as the Community standard which its own domestic
industry already applies. If it succeeds its industry will avoid the cost of adapting to a
new standard.9 Yet once the states have agreed on a common standard every state that
does not implement the agreement will only harm itself. Its domestic industry would be
able neither to export the components it produces nor to import components it needs.
Therefore, agreement in coordination games, once established, is self-enforcing. Every
8
Some authors (e.g. Zürn 1992; Martin 1993) regard two more situations as relevant for international
cooperation: assurance games and suasion games. Assurance games, however, are problematic social
situations only under conditions that arguably do not hold for the EU context (at least one actor is
uncertain about the others' preference ordering or at least one actor does not expect the others to act
rationally) (Hasenclever et al. 1997: 50). In suasion games the uncoordinated outcome is so robust that
some authors do not consider them problematic social situations at all (Stein 1982: 304; Taylor 1987: 40).
The probability that common rules are agreed upon in such instances is extremely low (Zürn 1992: 212).
Therefore it is safe to assume that only a very small fraction of EC directives, if any, regard suasion
games. I will therefore exclude assurance and suasion games from discussion.
9
To be sure, this is only a special case of a coordination game, namely a coordination game 'with
distributional conflict' (Zürn 1992: 191). There are also coordination games without distributional
conflicts (for example the standardization of a new component which is not yet produced in any of the
states involved and whose standardization therefore will cause no costs of adaptation for any of them). In
those situations the only difficulty for the participating states is to pick one common standard among
several possible ones.
6
rational state will implement it. "Thus there is no problem here of policing and
compliance." (Stein 1982: 314; see also Hasenclever et al. 1997: 48; Zangl 1994: 292;
Zürn 1992: 180).
This does not hold, however, for prisoner’s dilemma (PD) situations. Often international
environmental problems can be modeled as PD games. Take, for instance, a clean-air
directive designed to cut the emission of certain air pollutants. In this case, even after
agreement on the directive has been reached, there remain incentives for every state to
defect from cooperation, i.e. not to implement the directive. A state that does not force
its domestic industry to cut its emissions while the other countries do (i.e. a "free rider"),
realizes several advantages over the other states. First of all, the air in the concerning
state will be cleaner than before, because less emissions from neighboring countries will
cross its borders. At the same time, the state (or its domestic industry) does not have to
adjust its behavior. Thus it can avoid costs while realizing benefits. Moreover, it
achieves an advantage over the other states because it has less demanding environmental
laws and therefore may gain in attractiveness as a location for industry. All in all, this
makes for strong incentives not to implement the directive.
International institutions, that is "persistent and connected sets of rules (formal and
informal) that prescribe behavioral roles, constrain activity, and shape expectations,"
(Keohane 1989a: 3f.) may in this case be helpful to ensure implementation, because they
can alter the incentive structure for states in PD situations to some extent. For instance,
they may make a state's defection visible to the others, thus causing at least reputational
losses for the defecting state or maybe even the collapse of the cooperation altogether,
leaving the state concerned even worse off than before. However, while international
institutions might be able to reduce the incentives for defection, they cannot eliminate
them altogether, because an international institution eliminating all incentives for
defection would be quite costly to create. Rather, rational actors will attempt to design
an institution in a way that optimizes the ratio of costs and benefits. It might be perfectly
rational not to eliminate all possible incentives for all possible defectors, but to tolerate
a certain degree of non-cooperative behavior (Chayes/Chayes 1993: 197-204; Young
1979: 113-115). In the case of the EC, rules indeed do leave considerable room for
incentives to defect. While defection might be noticed by the Commission and maybe
even reprehended by the ECJ, the defecting state does not have to fear material
sanctions (at least there were no such sanctions until the TEU came into force). This
makes for considerable incentives not to implement directives regulating cooperation in
a PD situation.
7
4.3 Hypotheses about the Implementation of EC Directives
We have seen that rational institutionalism suggests that states have incentives not to
implement directives only in PD situations. As we shall see shortly, the incentives for
non-implementation are not the same across all EU member states. There are countries
with strong incentives for non-implementation and countries for whom these incentives
are weaker. Those countries for which the incentives are stronger should have lower
implementation rates than the other states. Thus, by identifying differences in the
incentives to implement PD directives we will be able to derive hypotheses about crossnational differences in implementation rates.
Implementing as well as not implementing EC directives causes costs. These costs
determine how strong the incentives for a member state are to implement or not to
implement a directive. We can distinguish at least four types of costs pertaining to the
(non-)implementation of EC directives. Consider once again a clean-air directive as an
example: First, a state that implements the directive has to bear the cost of ensuring that
the production of the concerning pollutants is cut (costs of implementation). Second, by
implementing the directive it abandons the opportunity to spend the resources needed
for implementation in a different way, e.g. for national policy programs (opportunity
costs of implementation). A state that does not implement the directive, however, runs
the risk of being punished for its deviant behavior (costs of non-implementation).
Moreover, it risks that the other states, recognizing that they are exploited by a free
rider, will also stop cooperating. The state would then have to do without the gains it
would have realized when implementing the directive, for example clean air
(opportunity costs of non-implementation).
Do these different kinds of costs create different implementation incentives for different
states, thus explaining differences in implementation rates?
(1) Costs of Non-Implementation
Until 1992 there were no material sanctions linked to the non-implementation of EC
directives. However, non-implementation caused immaterial costs, especially
reputational losses. At least the failure to transpose a directive into national law was
almost certain to be detected and made public by the Commission. Therefore, a state
could hardly afford generally not to implement EC directives, lest it wanted to earn a
reputation as "non-implementer" and thereby jeopardize the willingness of the other
states to cooperate in the future (see Keohane 1984: 105f.).
The TEU, which came into force in 1993, gives the ECJ the possibility to impose fines
on member states which attempt to evade implementation of EC legislation. Since a
8
state’s capabilities enter into the calculation of the fine10, the risk of being sentenced by
the ECJ deters both small and large member states to the same degree. Therefore, no
hypothesis about differences in the implementation behavior of member states can be
derived from the costs of non-implementation. These costs create roughly the same
incentives for all member states. Since the costs were raised considerably after 1992,
one would ceteris paribus expect the implementation rates of all states to go up after
1992.
(2) Costs of Implementation
The costs of implementation do vary from state to state. They depend primarily on a
state’s capacity to implement. It seems fair to assume that affluent states (states with a
high per capita income) in general possess a higher capacity to implement directives
than less affluent states. Less affluent countries often lack an efficient public
administration and tend to have relatively low standards of regulation (Chayes/Chayes
1993: 194; Jacobsen/Weiss 1995: 127; Mosley 1996: 28). While affluent countries may
be able to rely on existing bureaucratic resources and build on existing regulations,
poorer countries need to "catch up" first, which means they have to bear higher costs to
implement the same rules. Higher costs mean stronger incentives to avoid these costs by
not implementing directives. Thus, we arrive at the first hypothesis about differences in
the implementation rates of EC member states.
Hypothesis 1:
The less affluent a country is, the lower is its implementation rate with respect to PD
directives.11
(3) Opportunity Costs of Implementation
Implementation causes opportunity costs because the resources invested in the
implementation of a directive cannot be used to other ends, e.g. for domestic policy
programs. Non-implementation of PD directives, in contrast, enables a state to both
realize gains from implementation by others (e.g. its air will be less polluted) and to
spend its money on domestic policy programs, thus further enhancing its national
welfare.
10
This is ensured by the "factor n" by which the fine is multiplied. This factor takes into account a
country’s GDP and its number of votes in the Council (which is a measure for the size of its population)
(Official Journal of the European Communities, C 63 (28 Feb 1997)). This "factor n" is 1 for Luxembourg
and 26.4 for Germany; that is for the same infringement Germany would have to pay a fine 26.4 times
higher than that of Luxembourg.
11
The ceteris-paribus clause applies to all hypotheses.
9
This possibility to gain twice by non-implementation is more attractive for poorer
countries than for affluent ones; because the gain in welfare that can be realized through
the non-implementation of directives is more attractive for poor than for affluent
countries. This is due to the law of diminishing marginal utility (see Marshall 1961: 93):
The more an actor already possesses of a good, the less her utility will increase when she
gains an additional unit of the good (i.e. the seventh piece of cake that a person eats will
increase her utility less than the first one she had that day). In terms of utility, therefore,
an affluent state will gain less from not implementing an EC directive than a poor one.
Thus, looking at the opportunity costs of implementation we can again state the
expectation that poorer countries will have lower implementation rates with regard to
PD directives than more affluent countries (Hypothesis 1).
(4) Opportunity Costs of Non-Implementation
It will be useful for a state to avoid the cost and opportunity costs of implementing a PD
directive only if the other states continue to cooperate despite its own defection. If the
other states retreated to defective behavior themselves the original defector would be
even worse off than before: Its air would be as polluted as before and in addition the
state would have gained a reputation as "non-implementer." This would be even worse
than if the state had implemented the directive and taken on the costs and opportunity
costs of implementation.12
The risk that a state’s defection leads to the collapse of cooperation and thus to high
opportunity costs varies from state to state. Some states can anticipate that their own
defection, if detected, would lead the other states to retreat to defective behavior, too.
For other states it is fair to assume that their own defection – albeit it will not be
welcomed by the others – will not result in the collapse of cooperation.
This is due to the fact that in a multi-person PD situation not all actors have to cooperate
for the cooperation to be profitable for everyone. Rather "there is some number, k,
greater than 1, such that if individuals numbering k or more choose their unpreferred
alternative [i.e. cooperation, D.P.] and the rest do not, those who do are better off than if
they had all chosen their preferred alternatives [i.e. defection, D.P.], but if they number
less than k this is not true." (Schelling 1978: 218) Thus, in a multi-person PD situation
cooperative behavior of k actors (the cooperation of a "k-group") is enough to ensure a
gain in utility for all actors. Even if there are free riders it is rational for the members of
the k-group to continue their cooperation. The k-group, therefore, is "the smallest
disciplined group that, though resentful of free riders, can be profitable for those who
join (though more profitable for those who stay out)." (Schelling 1978: 218)
12
Otherwise it would have been irrational to agree to the directive in the first place.
10
Snidal (1985b) has demonstrated that this game-theoretic definition can be applied to
international politics. He also showed that the composition of the k-group depends on
the distribution of capabilities among the states concerned. The basic insight is that there
are states that can make substantial contributions to successful cooperation and states
that can contribute only little to the overall success. In an extreme case the k-"group"
may be comprised by a single state. Proponents of hegemonic stability theory, for
instance, argue that in the 1950s and 1960s U.S. capabilities in the world financial
system were so superior compared to those of other states that it was rational for the
U.S. to supply world trade with certain public goods (capital flow or markets for
manufactured goods, for instance) regardless of whether the other states cooperated or
not (Kindleberger 1988: 189). Although by free riding other states were able to realize
higher gains than the U.S., the utility for the U.S. was still higher than in the case of
U.S. protectionism.
If there is no hegemon in the system, the same effect can be produced by the cooperation
of a small group of big states.13 Snidal (1985b: 604-612) argues that after the decline of
U.S. hegemony in the 1970s, Germany and Japan joined the k-group. By cooperating to
supply the world market with certain public goods, these three large states were able to
produce such large gains that their cooperation was rewarding for them even if all other
states had not cooperated but acted as free riders.
Incentives to cooperate are distributed asymmetrically between members and nonmembers of the k-group. Non-members can retreat to defective behavior with relatively
low risk. Even when they drop out it remains rational for the members of the k-group to
continue cooperation. By not cooperating, non-members of the k-group can realize their
most preferred outcome in PD situations: They defect while the others cooperate.
Therefore, they have high incentives to defect. At the same time, members of the kgroup cannot afford to defect from cooperation. If they did so the cost of cooperation
would rise for the remaining members of the k-group and, by definition, these costs
would exceed the benefits from cooperation for these states. Being rational actors, they
too would stop cooperating and cooperation would collapse. Hence, the opportunity
costs of defection for every single member of the k-group are extremely high.
Which states are members of the k-group with respect to PD directives in the EC? The
exact composition of the k-group will depend on the problem a directive deals with.
13
In theory, this effect can be produced by the cooperation of a large number of small states, too.
However, the smaller the group of states that need to cooperate the more likely the k-group will actually
form. Hence, the smallest possible k-group is the k-group most likely to form (see Olson 1965). This is the
group composed of those states which by themselves can make the largest contribution to cooperation.
11
With respect to the clean-air directive cited above those states that are the biggest
polluters in absolute terms would have to be considered members of the k-group. In the
context of this article it appears justified to assume that primarily those states with large
economic capabilities will be members of the k-group. In general, they will make a
particularly important contribution to cooperation in PD situations because all EC
directives concern the economic realm. Countries which are economically less powerful
will make less important contributions and therefore tend not to be members of the kgroup. The stronger a state is economically, the more likely it will be a member of the kgroup with respect to the implementation of PD directives; and the higher will be its
incentives to implement those directives.
Hypothesis 2: The larger a state’s economic capabilities are, the higher is its
implementation rate with respect to PD directives.14
Note that what has been said about the opportunity costs of non-implementation implies
that only states which are not members of the k-group can have sufficient incentives not
to implement a PD directive. Non-implementation of a PD directive can increase a
state’s utility only if the state succeeds in free riding, that is if the other states implement
the directive nonetheless. The derivation of hypothesis 2 implied that countries with
large economic capabilities cannot reasonably expect to be successful free riders,
because if free riding of a member of the k-group is detected, cooperation will break
down. Thus, members of the k-group never can have sufficient incentives not to
implement PD directives, even if the absolute costs of implementation might be rather
high.15 Hence, the differences in implementation incentives that form the basis of
hypothesis 1 are relevant only for those states which are not members of the k-group.
Consequently, we can formulate a hierarchy of the independent variables in the
institutionalist model: Non-implementation is attractive at all only for those states with
relatively small economic capabilities (hypothesis 2). Among these small states the
14
Although hypotheses 1 and 2 seem quite similar they must, nonetheless, be distinguished. The first one
rests on the distinction between poor and affluent countries, the second one on the distinction between
countries with large and those with small economic capabilities. These distinctions are not identical. There
are, for instance small affluent countries on the one hand and small poor countries on the other,
Luxembourg being an example for the first, Portugal for the second category. These states will face
different incentives according to hypothesis 1: While the costs of implementation and thus incentives for
defection will tend to be high for poor Portugal, they will be considerably lower for the significantly more
affluent state of Luxembourg. However, both small countries are unlikely to be members of the k-group
and therefore both countries also have strong incentives not to implement directives according to
hypotheses 2. Only both hypotheses together capture the rational institutionalist model of implementation.
15
The costs of implementation will, by definition, not exceed the gains to be reaped from cooperation.
Otherwise it would not have been rational to agree to the directive in the first place.
12
incentives to defect are most pronounced for non-affluent states (hypothesis 1). We will
have to keep this hierarchy in mind when testing the model in section 6.
5 Liberalism
The institutionalist model introduced in section 4 treats states as unitary, rational actors
which consciously decide in favor of or against the implementation of a directive. To
treat the state as a unitary actor and as a "black box" whose internal structure can be
abstracted from has been a dominant approach in International Relations for decades
(Moravcsik 1997: 514). Yet for several years scholars of International Relations have
criticized this approach and demanded that a state’s internal characteristics be taken into
account when its behavior in the international system or outcomes at the international
level are to be accounted for (e.g. Haggard 1991; Milner 1992; Moravcsik 1993: 11-14).
Recently, this criticism has become common sense: "Lately no word – apart from
'rethinking' – seems to appear more often in international relations titles than
'domestic.'" (Jacobsen 1996: 93).
The second model of implementation to be presented here takes this criticism into
account and opens up the "black box" of the state. This liberal model regards
implementation not as the result of the cost-benefit calculation of rational states but as
the outcome of a more or less complex decision-making process in which a number of
societal actors participate with their individual preferences.
In order to account for the overall implementation behavior of a state by reference to its
internal decision-making procedures we need to single out those characteristics of the
decision-making process which influence the implementation decision across all
directives. Therefore, in the remainder of this section I will develop a simple model of
the decision-making process from which I will then derive two hypotheses about the
implementation rates of EC member states.
5.1 Veto Players and Decision-Making
The basis of my model is provided by the veto-player approach which George Tsebelis
(1995a, 1995b) developed to make domestic decision-making processes comparable
across democratic countries and which has been applied successfully to different issues
in comparative politics (e.g. Hallerberg/Basinger 1998; Radaelli 1997; Tsebelis 1999).16
Since the model will later be tested with regard to legal implementation I will focus on
16
The approach has also been utilized in the International Relations literature, for instance by Helen
Milner (1997: 14, 106f.).
13
legislative decision-making, but the model and the hypotheses will be applicable to
other phases of the implementation process as well.
Let us start out from a quite simple linear model of the decision-making process. The
process basically consists of three phases: In phase one, a delegation participates for the
member state in the negotiations about a directive on the European level. In phase two,
after a directive was agreed upon, the government of the member state decides whether
to introduce a bill into the domestic legislative process in order to transpose the EC
directive into national law. In phase three, the actual legislative decision-making takes
place, i.e. several actors have to consent to the bill. All actors whose consent is
necessary (in any phase) in order for the directive to be implemented will be called veto
players: "A veto player is an individual or collective actor whose agreement is required
for a policy decision." (Tsebelis 1995a: 293)
Two kinds of veto players can be distinguished: institutional and partisan veto players
(Tsebelis 1995a: 302-305). Institutional veto players are those whose veto power is laid
down in the constitution and who are the main actors in the final phase of the decisionmaking process. Depending on the constitution, they include upper and lower houses of
parliament, and/or presidents with legislative powers.17 In contrast, partisan veto
players are the main actors in what I have labeled phase two of the decision-making
process: the parties which comprise the government. Those parties do not have formal,
but they do have de facto veto power. This de facto veto power is in part due to the fact
that the government is a gatekeeper in the implementation process. It is the government
that decides which directives are introduced into the formal legislative, and hence into
the implementation process. To be sure, in West European democracies not only the
government can introduce parliamentary bills. But again, de facto most bills in these
democracies are formulated by the government (Tsebelis 1995b: 95f.); and it is certainly
plausible to assume that all bills which implement international agreements are
introduced by the government, which has been responsible for negotiating the
international agreement in the first place, and not by members of parliament.
Hence, due to its gatekeeping function, government is a veto player in the
implementation process. But it is not only the government as a whole that possesses this
informal veto power, but every single party inside a government coalition. This is
obvious for "minimum winning coalitions" (Riker 1962: 40 et passim), i.e. for coalitions
which would lose their parliamentary majority if a single member left the coalition.
17
In the legislative process there can be additional veto players, for instance courts or referenda. Even
special requirements regarding the majority with which a bill has to be passed can be regarded as veto
"players" (Tsebelis 1995a: 307). I will ignore these veto players here because they play at best a minor
role with regard to the implementation of EC directives.
14
Here, it is vital for the coalition to ensure the assent of every member to every policy
decision. Otherwise they would run the risk that the outvoted member would leave the
coalition, dissatisfied because – albeit itself a part of government – it could not
influence government policy. This would imply the loss of the parliamentary majority
for the remaining government members and thus probably the loss of governmental
power, a loss they will be eager to avoid. But also government coalitions which are not
minimum winning coalitions (i.e. oversized and minority coalitions) will seek to ensure
the assent of all their members to every policy decision. Obviously, in these cases a
coalition is not forged simply to win a majority in parliament. There must be additional
political reasons that prompt the parties to form such coalitions. Oversized government
coalitions, for instance, are a typical feature of consociational democracies (Lijphart
1977: 25-36). They can be regarded as expression of a societal consensus that
government should be formed by a majority as broad as possible (Kaiser 1997: 427).
Hence, they are not formed for the larger parties to be able to outvote the smaller
coalition partners at will but to ensure that government policies are backed by a majority
as large as possible. Therefore, even small members of an oversized government
coalition will have veto power. This also holds for minority coalitions. Even in such a
coalition it would not make sense to include a party in the government coalition only to
outvote it later with regard to specific policy decisions. Therefore, all parties in
government coalitions can be regarded partisan veto players (Tsebelis 1995a: 304).
Of course, the legislative decision-making process is not only influenced by institutional
and partisan veto players. Also a host of societal actors attempt to influence the
legislative decision formally and informally. They might indeed be very important for
specific policy decisions. Nonetheless, I will exclude them from discussion here for two
reasons. First, every societal actor will become active only with regard to specific issues.
These issue-specific activities can be excluded from an explanation of the general trend
in the implementation behavior of a country. Second, even with regard to single policy
decisions it would be difficult to decide which societal actors to treat as veto players
according to the definition, that is to judge which societal actors actually could prevent a
policy decision. Therefore I will include only those actors which have actual veto power
in every single (legislative) implementation decision, that is institutional and partisan
veto players. "The assumption is that while the number of veto players may vary by
issue or over time, these variations will cancel each other out when applied across
several issues for sufficiently long periods of time." (Tsebelis 1995a: 308)
To sum up it can be said that the liberal approach regards implementation as the result
of a decision-making process that involves several domestic actors. A directive, which
has been negotiated on the European level with the participation of a delegation from
15
each member state, will be implemented in a state if and only if all veto players give
their assent to implementation. In the legislative process, which determines legal
implementation, institutional and partisan veto players can be distinguished.
5.2 Deriving Hypotheses
Now that we have a simple model of decision-making we can start to derive hypotheses
about the results the decision-making process will produce. The implementation
decision will be determined by the preferences of the veto players. For the sake of
simplicity I will combine all veto players which hold identical preferences into a single
one, because in decision-making it does not matter how many veto players hold a certain
preference.18 One can assume that there are veto players which indeed will hold (nearly)
identical preferences across (nearly) all implementation decisions. For instance, one
might assume that in general a majority government will be supported by the
parliamentary majority (Beyme 1982: 369). In this case it would not make sense to
regard parliament as an additional veto player; because in general parliament will agree
to a decision to which the members of the government coalition have already agreed. In
these cases Tsebelis’ "absorption rule" (Tsebelis 1995a: 309-311) applies: Institutional
veto players with identical majorities are treated as one institutional veto player.
Furthermore, an institutional veto player will be regarded as a distinctive veto player
only if the parties comprising government cannot determine its decisions, i.e. if the
government parties have no majority in this institution. Partisan veto players, however,
will in general be treated as distinctive veto players, because only in very rare cases will
several parties hold nearly identical preferences over a broad range of issues (see also
Tsebelis 1995a: 306f.). Hence, in all that follows I will take into account only those veto
players which hold different preferences.
One last concept is needed to derive hypotheses from the liberal model: the concept of
the "win set." This concept, which is taken from rational choice theory, was introduced
into the International Relations literature by Robert Putnam (1988). With regard to an
international negotiation the win set of a state participating in these negotiations is the
set of those international agreements which would gain the necessary majority for
ratification in the state concerned (Putnam 1988: 437). To translate this for our
purposes: With regard to the negotiations on an EC directive the win set of a member
state is the set of all possible agreements (directives) that would be implemented in that
18
As said above, the implementation decision is not a majority decision – it is a unanimous decision to
which all veto players have to agree. Thus the number of veto players having a certain preference will not
matter as long as this preference is represented at least by one actor.
16
state, i.e. that would gain the support of all veto players.19 Consider an agriculture
directive: Germany’s win set with respect to this directive includes all possible results of
the negotiations that would gain the support of all German government parties plus the
support of the German upper and lower chamber of parliament provided the government
parties do not have a majority there.
Now we have finally reached the point where we can derive hypotheses from the model:
A directive will be implemented in a member state if and only if it is part of the win set
of the respective member state. The probability that it is part of the win set is the higher
(a) the larger the win set is; and (b) the better the national delegation negotiating the
directive at EC level is informed about the contents of the domestic win set. I will
briefly discuss this and formulate two hypotheses.
5.2.1 Size of the Win Set
The larger the win set is, the more directives it contains. Hence, the larger the win set
the more likely a directive that has been agreed upon in the Council is part of this win
set; that is the more likely is the implementation of the directive by the member state
(see also Putnam 1988: 439).
Therefore, we need to identify those factors which influence the size of the win set
across all directives in order to formulate hypotheses about the implementation rates of
EU member states. Tsebelis (1995a) considers two variables that influence the size of
the win set: the distance between the preferences of the veto players; and the number of
veto players.20
The closer the preferences of different veto players are to one another, the easier it is to
come to an agreement; the further they lie apart, the harder it is to reach agreement.
Therefore, the win set becomes larger, the smaller the distance between the preferences
of the veto players is. The distance between the veto players’ preferences, however,
depends to a large extent on issue-specific factors. Two veto players may strongly
disagree with regard to an agriculture directive but have very similar preferences with
regard to an equal-pay directive. Since this variable varies with respect to different
19
For a formal definition of the win set, see Shepsle/Weingast (1987: 90); but note that they regard
ratification as a majority decision whereas in our case the assent of all veto players is needed.
20
Tsebelis also discusses a third variable, namely party cohesion. He makes it very clear, that party
cohesion is not identical with party discipline (which can be measured by voting patterns in parliament,
for instance) (Tsebelis 1995a: 311f.), but he does not give any hint as to how to operationalize or measure
party cohesion. I do not see any possibility to operationalize this variable and, therefore, exclude it from
discussion.
17
issues, it can be excluded from a discussion of those variables that determine the general
trend of the implementation behavior of EU member states.
Yet the second factor influencing the size of the win set, namely the number of veto
players, is important for the problem under investigation. The more veto players there
are, the smaller is the win set. For the agreements that n+1 veto players can arrive at,
can only be a subset of what n veto players could agree on (Tsebelis 1995a: 297). Or to
put it differently: If three actors A, B, and C have to agree on a common denominator,
they can only agree on a subset of those positions A and B could agree on. Since the
number of institutional and partisan veto players is not issue-specific, we can directly
derive the first liberal hypothesis:
Hypothesis 3:
The larger the number of veto players is in a country, the lower is its implementation
rate.
5.2.2 Information about the Domestic Win Set
Hypothesis 3 could remain the only liberal hypothesis if the bargaining of a directive at
the European level on one hand and national implementation on the other were two
independent processes. Yet the bargaining and the implementation of a directive are not
completely independent. Rather, bargaining is a two-level process in which the national
delegation serves as a link between the international and the domestic level (Putnam
1988: 434). The delegation attempts to influence the content of the directive with a view
to what can be implemented at the domestic level. The delegation’s aim is to formulate
the directive so that it is contained in the domestic win set. The probability that the
delegation succeeds depends not only on the size of the win set; but also on how well
the delegation is informed about the contents of the win set.
The better the delegation is informed about the preferences of the veto players (which
determine the contents of the win set), the better it is able to bargain in such a way that
the resulting directive will be contained in the domestic win set. Lisa Martin (1995), for
instance, has shown that the fact that the Danish parliament is consulted before the
Danish delegation in the Council takes its position is conducive to Danish legal
implementation rates. This institutional mechanism enables the Danish government to
anticipate domestic opposition and to take it into account when it engages into
bargaining at the European level. The literature on implementation in general regards it
as conducive to implementation when those who are responsible for implementing a
18
policy decision can participate already in the making of the respective policy decision
(see Andresen et al. 1995: 54; Mosley 1996: 26).
Hypothesis 4:
The better the national delegation of a state is informed about the preferences of the
domestic veto players, the higher is the implementation rate of this state.
5.3 Putting the Hypotheses Together
The final step in building a liberal model of implementation is to clarify how the two
independent variables interact to determine the implementation behavior of a state. They
are not completely independent. Consider a country in which the national delegation
possesses perfect information about the preferences of all national veto players. Since
this delegation knows the exact contents of the win set it will agree only to such
directives in the Council that actually lie within the win set; i.e. to directives whose
national implementation is guaranteed. The size of the win set does not matter. Consider
now a country in which the delegation has no information whatsoever about the national
veto players’ preferences. In this case it is completely due to chance whether the
directive passed at the European level lies within the national win set. The larger the win
set, the more likely the directive is contained within the win set. In this case the size of
the win set is all that matters for the probability of implementation.
Hence, how well the national delegation is informed about the veto players’ preferences
has on one hand an independent effect on the probability of implementation (the better
the delegation is informed, the more likely is implementation). On the other hand, it
conditions the effect which the number of veto players has (the better the delegation is
informed the less the number of veto players matters). Two expectations result: (a) The
better the national delegation in a country is informed about the national veto players’
preferences, the higher is this country’s implementation rate (hypothesis 4). (b) The
number of veto players matters only in those countries in which the national delegation
is not well-informed about the veto players’ preferences. Among these countries
implementation rates will vary according to hypothesis 3.
6 Preliminary Test of the Hypotheses
6.1 Dependent Variable
Let us now turn to a preliminary test of the hypotheses derived in the preceding sections.
I will use data on the legal implementation rates of EC countries in the three-year period
19
immediately following 1989 (1990 to 1992). Due to limitations of space I can only
briefly give some reasons as to why I choose these data to test the hypotheses.
I will focus on legal implementation because these records are the only reliable data
readily available, as noted in section 2. Furthermore, I will pool the implementation
rates of three years, a period long enough to exclude singular events that might distort a
country’s implementation rate in a single year. Both models assume that a state has to
implement only directives to which it itself has explicitly agreed.21 This makes it
necessary to focus on the period immediately preceding the entry into force of the
Maastricht Treaty. Before the TEU came into force the Council of Ministers dominated
decision-making in the EC. Directives were passed according to the "consultation" and
"cooperaton" procedures (see Nugent 1999: 50, 360-366; Weindel 1996: 75-78). In both
procedures it is the Council of Ministers that makes the final decision. The European
Parliament (EP) is consulted and might even ask for changes in the text of a directive,
but eventually the Council can overrule the EP’s decision. Thus, until 1992 the Council
and through the Council the governments of the member states were the most important
actors when it came to deciding about EC directives. In most cases directives were
passed unanimously22 which implies, in turn, that every member state was able to
influence to a considerable extent the contents of the directives which it had to
implement later on (Edwards, G. 1996: 130). This changed after 1992, because the
Maastricht Treaty extended qualified majority voting in the Council to a wider range of
issues and also extended the rights of the EP which received veto powers with regard to
some issues (see Article 251 [189b] TEC). Therefore, until 1992 EC directives can be
regarded as intergovernmental agreements, whereas their supranational character
became more prominent afterwards. Since both models assume that national delegations
are able to influence the contents of a directive decisively, it is appropriate to test the
hypotheses with data that excludes the directives passed after 1992. Although the
national implementation rates from 1993 to 1997 cannot be used for rigorous hypothesis
testing, I will not completely disregard this data, but use it as additional evidence in
section 7.
The institutionalist hypotheses 1 and 2 apply only to PD directives. Therefore it may
seem necessary to look not at overall implementation rates, but only at the
21
In the institutionalist model this assumption makes it possible to exclude suasion games from
discussion. In the liberal model the underlying assumption is that the national delegation can co-decide on
the contents of a directive on the international level.
22
Only if the national delegations were not able to find a consensus neither in the working groups nor in
the Committee of Permanent Representatives nor in the Council of Ministers itself and if the directive was
concerned with one of those (few) issues on which the Council according to the TEC could decide by way
of qualified majority voting, a vote was taken in the Council (Hayes-Renshaw/Wallace 1997: 48; Nugent
1999: 167-170).
20
implementation of PD directives to adequately test these hypotheses. But how could one
single out PD directives from the more than one thousand directives that were in force at
the beginning of the 1990s? Fortunately, it is possible to avoid this demanding task and
to preliminarily test institutionalism using data on the implementation of all directives
without having to single out PD directives. Rational institutionalism expects variation in
implementation rates only with regard to PD directives. It expects no variation in the
implementation of coordination directives, because the incentives to implement those
directives are overwhelming for every state. Thus, from a rational institutionalist
viewpoint, overall variation in implementation rates can only be due to variation in the
implementation of PD directives. Thus we can use overall implementation rates to
assess differences in the implementation of PD directives.23
6.2 Independent Variables
There are two independent variables in each model, which have to be operationalized in
order to test the hypotheses: affluence and economic capabilities for rational
institutionalism; the number of veto players and the information the national delegation
has about the domestic win set in the liberal model.
For the operationalization of the institutionalist variables I rely on indicators that are
widely used in the literature. I measure a country’s affluence by reference to its GDP per
capita, its economic capabilities by reference to its GDP.
The operationalization of the liberal independent variables is somewhat more complex. I
count as a veto player: every party in government; every individual or collective actor
with absolute veto power in the law-making process who is not a member or whose
majority are not members of the parties in government. To determine how well the
delegation is informed about the win set I look at national decision-making procedures:
23
The effect that can be detected with regard to overall implementation rates, however, will be smaller
than the effect the independent variables have on the implementation of PD directives (see King et al.
1994: 130-132). Consider a simple numerical example: Two states A and B have to implement 100
directives, 50 coordination directives and 50 PD directives. Both of them implement all 50 coordination
directives. But while state A also implements all 50 PD directives, poorer and smaller B implements only
25 of these directives, i.e. only 50% of those implemented by A. Yet with regard to overall
implementation rates, A (100 directives implemented) has implemented only 25% more directives than B
(75 directives implemented). The smaller the proportion of PD directives in the sample, the more
pronounced is this effect. To ensure that an effect can be detected at all, there must be more than just a
negligible few PD directives among all EC directives. From a rational institutionalist viewpoint there is
reason to believe that this is indeed the case. PD is regarded as one of the most important situation
structures in international cooperation. Robert Keohane’s After Hegemony (1984) is based on this situation
type and a number of other rational institutionalist studies of international cooperation are based solely on
PD (see Grieco 1988b: 604; Hasenclever et al. 1997: 109f.). PD is especially well-suited to model
problems of collective goods and free trade (Stein 1982: 307f.), two issue areas which are particularly
prominent in the EC context.
21
The delegation has "comprehensive information" about the win set if there are national
institutions which make it possible for all veto players to voice their preferences with
regard to a pending EC decision before the national delegation formulates its position
for the negotiations in Brussels; it has "some information" if there are institutions in
which a majority of veto players can voice their preferences; otherwise it has "no
information".
6.3 Test
The data for the independent and dependent variables are reproduced in detail in the
appendix. For the preliminary test of the hypotheses I use simple tables to compare the
values of the independent and dependent variables. To assess the independent effect of
each variable, I will additionally use a multiple linear regression.
6.3.1 Rational Institutionalism
Table 1 contains the data for a test of the institutionalist hypotheses. According to the
model the countries ranking highest in the table (those with a large share of the EC
GDP) should have the highest implementation rates, because they will most likely
belong to the k-group. Countries ranking lower should have lower implementation rates;
within this latter group those countries with the lowest per capita income should have
the lowest implementation rates, according to hypothesis 1.
There are two cases that clearly do not conform with institutionalist expectations: Italy
and Denmark. Italy has large economic capabilities compared to those of the other EC
countries and it also has a fairly large GDP per capita but its implementation rate is
exceptionally low. Thus, Italy’s implementation behavior cannot be accounted for by the
institutionalist model. On the other hand, Denmark has the highest implementation rate,
although it is one of the smallest EC countries. One could argue that its large per capita
income contributes to its high implementation rate; however this cannot explain why
Denmark’s implementation rate is so much higher than that of every other small country
and even higher than those of the four big countries of the EC.
Excluding these two "outliers" for the moment, the pattern in the table conforms fairly
well with the expectations of hypothesis 2. The large countries have the highest
implementation rates (averaging 93.6%), while those of the small countries are
consistently lower (averaging 89.5%).24 The expectations of hypothesis 1, however, are
hardly confirmed. To be sure, the two small countries with the lowest GDP per capita
24
η² = .530, p = .017.
22
(Portugal and Greece) do have the lowest implementation rates. But there is no
consistent pattern for the small countries with higher GDP per capita.
Table 1: Rational Institutionalist Variables and Implementation Rates
Country
Share of EC GDP per capita Implementation
GDP
(Purchasing
rate
Power Parities
per capita)
GER
26.40%
16,732
92.7%
FRA
19.00%
16,951
93.8%
ITA
17.69%
15,743
82.4%
UK
15.52%
14,896
94.2%
SPA
8.15%
11,734
91.9%
NET
4.57%
15,499
92.1%
BEL
3.14%
16,335
90.1%
DEN
2.05%
16,172
96.5%
GRE
1.38%
9,208
87.5%
POR
1.20%
9,451
86.2%
IRE
.74%
11,555
90.3%
LUX
.17%
22,903
88.5%
avg. implementation rate of "big countries" (GER, FRA, ITA, UK): 90.8%
avg. implementation rate of "small countries":
90.4%
Thus, this more or less informal evaluation of the institutionalist model suggests that a
country’s economic capabilities do have an effect on its implementation rate, while its
affluence does not have a visible effect. That is, it is most important whether a country
belongs to the k-group or not. Italy’s and Denmark’s implementation behavior cannot be
accounted for by the institutionalist model.
6.3.2 Liberalism
Table 2 contains the data for the test of the liberal model. The expectation is that the
countries ranking highest in the table (national delegation is well-informed about the
win set) have the highest implementation rates, those ranking lowest have the lowest
rates and those in the middle take the middle ground. Within the first group, the number
of veto players should have no visible effect on implementation rates, whereas among
the countries at the bottom of the table those with higher numbers of veto players should
23
have clearly lower implementation rates. For the countries in the middle group ("some
information"), some effect of the number of veto players should be visible, too.
Table 2: Liberal Variables and Implementation Rates25
Country
Information about the
National Win Set
Number of Veto
Players
Implementation Rate
DEN
comprehensive
3.3
96.5%
UK
comprehensive
1
94.2%
FRA
comprehensive
2.6
93.8%
GER
comprehensive
2.9
92.7%
NET
comprehensive
2
92.1%
BEL
comprehensive
4.6
90.1%
POR
comprehensive
1.6
86.2%
SPA
some
2
91.9%
IRE
some
3
90.3%
GRE
none
2.1
87.5%
ITA
none
4.4
82.4%
means
comprehensive
92.2%
some
91.1%
none
85.0%
(Note: Luxembourg has 2 veto players. Since data on how well the national delegation is informed about
the domestic win set is not available, Luxembourg was excluded from the test of the liberal model.)
The only exceptional case with respect to the liberal model is Portugal. In Portugal the
national delegation is well-informed about the national win set, and there are even only
very few national veto players, but the Portuguese implementation rate is one of the
lowest in the Community. However, even if Portugal is not excluded, the overall "fit" of
the liberal model is quite astounding: Those countries in which the national delegation is
well-informed about the national veto players’ preferences, on average, have the highest
implementation rates. Those in which the delegation has no information about the win
set, clearly have the lowest implementation rates, and those in which there is only some
information about the national veto players’ preferences take the middle ground.26
25
I have discussed the values for the variable "information about the national win set" at length
elsewhere (Peters 1999: 66-89). My main sources included: Grottanelli de Santi (1992), Ioakimidis
(1994), Laffan (1991), Nehring (1992), Norton (1996), Rambaud (1993), Rometsch/Wessels (1996), and
Sørensen/Væver (1992). For details on the number of veto players, see appendix.
26
η² = .509, p = .058.
24
Furthermore, in the countries belonging to the first group, the number of veto players
seems not to systematically affect implementation rates. In the other groups, those
countries with most veto players have the lowest implementation rates.
Of course, this cannot be regarded as a final proof of the liberal hypotheses. The number
of cases in the categories "some information" and "no information about the national
win set" is simply to small. But the evidence for the liberal model is nonetheless more
convincing than that for the institutionalist model.
6.3.3 Both models
For a final assessment of the explanatory power of the variables I enter them into a
multiple regression. The multiple regression, however, does not reflect the hierarchical
relations between the independent variables as specified in the different models.
Moreover, the results can hardly be statistically significant due to the small number of
cases (n = 12) and the large number of independent variables. Therefore the regression
cannot provide a conclusive test of the models either, but it will serve to further
strengthen or weaken our confidence in the explanatory power of the two models. The
results of the regression are reported below.27
Unstandardized
Coefficient B
Std.
Error
(Constant)
83.932
6.528
Number of veto
players
-.430
1.038
Comprehensive
information
(dummy)
6.903
Some
information
(dummy)
Log GDP
27
Standardized
Coefficient
Beta
t
Significanc
ep
12.857
.000
-.119
-.414
.693
2.931
.863
2.355
.057
6.133
3.677
.615
1.668
.146
1.004
2.118
.137
.474
.652
To reduce the number of independent variables, I exclude GDP per capita from the regression.
According to the models this should be the least important of the independent variables. I use log(GDP) as
variable representing a country’s economic capabilities, because the relationship between a country’s GDP
and its implementation rate is non-linear as a scatterplot reveals which is not reproduced in this paper.
25
The results of the regression once again highlight the importance which national
decision-making procedures have: A country in which the national delegation is wellinformed about the national veto players’ preferences has an implementation rate which
is on average 6.9 percentage points higher than that of a country in which the delegation
has no information about the win set. This effect is the only statistically significant
effect in the regression. As predicted by the liberal model, the number of veto players
has (a) a much weaker, and (b) a negative effect on a country’s implementation rate. Not
surprisingly, this effect has no statistical significance in the regression. The effect of
GDP also is statistically insignificant. This underlines that the liberal variables are more
important for explaining overall implementation rates than those of the institutionalist
model. It does not imply, however, that the institutionalist model completely fails at
explaining implementation behavior. Note that, as mentioned above, the strategy to test
those hypotheses which apply only to PD directives using data on all directives produces
statistical results that might seriously underestimate the actual effect that the
independent variables have on the implementation of PD directives.
There is additional evidence which leads one to suspect that both models contribute to
an explanation of implementation behavior. Those countries which are outliers for one
model are explained, but extreme cases in the other model. This suggests that an
extreme value on one of the independent variables overshadows the effect that the other
independent variables have. Consider Italy: This country has an exceptionally low
implementation rate although its economic capabilities and its per capita income would
lead us to expect a fairly high implementation rate. From the liberal viewpoint the
extremely low implementation rate is hardly surprising: In Italy the national delegation
has no information about the national win set and on top of that, Italy has one of the
highest numbers of veto players. The exceptionally high implementation rate of
Denmark, which is the second country not accounted for by institutionalism, is also
explicable by reference to the liberal model. Denmark is the only country in which the
national delegation not only is informed about the national veto players' preferences but
in which these veto players have actual veto power before a directive is negotiated at the
EC level. The Folketing, Denmark's parliament28, has a European Affairs Committee
with exceptional institutional powers. The government has to inform the committee
about all directives which are to be negotiated at the European level. In the committee
the responsible minister explains the government position and takes notice of the
committee's position. Although de jure the committee can formulate a binding mandate
for the negotiations only in special cases (Sørensen/Væver 1992: 5), the Danish
government usually follows the position of the committee (Arter 1996: 111). Since
28
The Danish parliament acts as a veto player with respect to the implementation of EC directives
because during the period covered here Danish governments were minority governments.
26
coordination among members of government is also very strong in Denmark (Pedersen
1996: 199-202) all national veto players have de facto veto power not only when it
comes to implementing a directive but already when the Danish position on a directive
in the Council is formulated. Thus, not only is the Danish delegation well-informed
about the domestic win set, it is even obliged to negotiate in such a way that the
resulting directive will fall within this win set. This way high implementation rates are
guaranteed from a liberal point of view. Therefore, in the Danish case, as in the Italian
case, an extreme value on the liberal independent variables overrules the effect of the
other independent variables, thus making Denmark an outlier for the institutionalist
model.
Finally, Portugal cannot be accounted for by the liberal model: Although the national
delegation is well-informed about the win set (and although there are only few veto
players in Portugal), Portugal has a very low implementation rate. This in turn can be
explained by the institutionalist model. Portugal has both a very small GDP and a very
small GDP per capita relative to the other EC member states. This very unfavorable
economic situation might overrule the effect of the relatively favorable structures of
national decision-making and account for the low Portuguese implementation rate.
Taken together, there is evidence that both rational institutionalism and liberalism
account for the implementation behavior of EC member states.
7 Summary of Findings and Policy Implications
Why then do EC member states fail to implement EC directives? Interests and structures
of national decision-making account for non-implementation. To some degree nonimplementation may be explained by a state’s interests as a voluntary decision of the
state against the implementation of directives due to a rational calculation of costs and
benefits. Especially for smaller states (that is, for those states which are likely not to
belong to the k-group) there may be incentives to act as free riders with regard to certain
directives. However, the better part of non-implementation can be explained as "nonvoluntary defection" (Putnam 1988: 438f.): The national delegation negotiates a
directive with the intention to actually have it implemented later by domestic actors.
However, national veto players refuse to implement the directive because it does not
reflect their preferences adequately. This gap between the intentions of the national
delegation and the decision of national veto players is most often due to the fact that the
national delegation is not appropriately informed about national veto players’
preferences before it takes its stance in the negotiations at EC level. Where the national
delegation has no comprehensive information about the veto players’ preferences, a high
27
number of veto players has additional detrimental effects on national implementation
rates.
Now that (some of) the causes of non-implementation have been anlayzed we can return
to the opening question: How can implementation rates be improved?
Since legal implementation rates are higher than or only little below 90% some might
ask why one should aim at increasing implementation rates at all? But to infer from high
legal implementation rates that there is no need for a further improvement of the
implementation of EC legislation would be premature. EC organs have repeatedly
pointed to the need to improve implementation. Furthermore, one can assume that high
legal implementation rates mask much lower administrative implementation and
compliance rates. Since both models presented here are general enough to apply to all
phases of the implementation process, it seems worthwhile to translate the findings into
some policy advice.
According to the results presented here, there are basically two ways of improving
implementation rates: by changing states’ cost-benefit calculations and by changing the
institutional structures of the domestic decision-making process.
For the EC institutions, which can hardly influence national decision-making structures,
it will be most rewarding to focus on the first of these two possibilities, that is to
influence national cost-benefit calculations. It is true that the most important variable
affecting national calculations of costs and benefits, namely membership in the k-group
which is determined by a country’s economic capabilities in relation to those of other
EU countries, cannot be changed by European institutions. The clear differences in the
economic capabilities of the member states cannot be completely leveled. Thus, there
will always be incentives for smaller states to choose free-riding strategies with respect
to PD directives. However, the EC can counter these incentives by raising the cost of
non-implementation. Indeed, this was the main strategy employed in the past years. In
Maastricht the possibility to impose fines on states which did not fulfill their
implementation obligations was introduced into the TEC. Thus the costs for nonimplementation were raised. If states are sensitive to costs, as the institutionalist model
suggests, implementation rates should have gone up since then. Moreover, the
institutionalist model would lead us to expect that the rise was especially pronounced in
those countries which had had large incentives for free-riding before, that is for small
states not belonging to the k-group. For the members of the k-group the incentives for
non-implementation have always been very low so that they will be less affected by a
rise in the costs of non-implementation. The empirical evidence supports these
28
expectations. There are only two states whose implementation rates did not rise after the
Maastricht Treaty had entered into force, namely Germany and France, both members of
the k-group.29 Excluding Italy once again, which as we have seen above is a special case
for the institutionalist model, those countries with the lowest rise in implementation
rates after 1992 are the United Kingdom (the smallest of the three "big" states
considered here) and Spain (the largest of the "small" states). The smaller states all show
considerably larger rises in their implementation rates. This may serve as further
evidence for the institutionalist model. It also illustrates that the strategy of raising the
costs of non-implementation appears to have been successful. The Commission and the
ECJ now seem to have a more effective means at their hands to ensure that EU member
states stick to their obligations.
Yet the results of this study also suggest that such a European strategy can only be
partially successful, because a state’s utility function is only one factor among many
which influence its implementation behavior. Domestic decision-making procedures
have an even more important effect on implementation rates. To be sure, there are ways
in which European institutions could counter detrimental effects of unfavorable
domestic decision-making procedures. It would be possible, for instance, to directly
include national veto players’ preferences in the formulation of directives effectively
bypassing national delegations. For instance, there might be hearings with national
interest groups (which are important veto players in the compliance phase of
implementation) before the Commission formulates the draft directive. Also the EP
could serve as a channel for national societal veto players to influence the European
decision-making process, at least for those subject matters where the EP has an effective
co-decision power. The participation of the Committee of Regions in the European
decision-making process could have positive effects on implementation, too, because
the regions are in many countries important veto players during the phase of
administrative implementation. In these ways, European institutions could help to adjust
the contents of directives to the national veto players’ preferences. This can be expected
to have positive effects on national implementation rates.
But the most obvious way of including national veto players into decision-making
would be via national decision-making procedures that is by giving the veto players a
say already during the formulation of national positions in the Council. This cannot be
accomplished by EC institutions but is up to the member states themselves. In several
member states there have indeed been considerable changes in this respect. Especially
national parliaments were able to increase their leverage over the formulation of
national positions in the Council (see Hayes-Renshaw/Wallace 1997: 226, and the
29
See appendix for the exact figures.
29
contributions to Norton 1996). While parliaments themselves are veto players only in
some special cases (namely with respect to legal implementation if the government has
no parliamentary majority), they also serve as access channels to the national decisionmaking process for interest groups and other societal actors, so that a better integration
of parliaments into national decision-making prior to negotiations at EC level will also
serve to improve compliance rates.
The liberal model suggests that it is most important to provide the national delegation
with comprehensive information about national veto players’ preferences before
negotiations start in Brussels. If this can be achieved the number of veto players will
lose its importance and implementation rates will improve considerably even if the
number of veto players in a state is large. This will also serve to address the "democratic
deficit" in the Union. By improving the integration of those affected by policy decisions
into the formulation of these decisions (be it through European or through national
channels) democratic control over policy is improved.30
Hence, there is a multitude of possibilities to improve implementation rates and thus to
make European policies work better. Particularly promising are the use of material
sanctions against non-implementers and better incorporation of those who are
responsible for implementing a policy decision into the making of this decision. Note,
however, that there is an important trade-off with respect to the latter option. The more
veto players are involved in the formulation of a policy decision, the more difficult it is
to reach agreement about this decision. That is, by involving the veto players in the
formulation of a decision the implementation problem is shifted to the formulation
phase. The more a delegation is restricted to a certain position in the negotiations by the
domestic veto players, the less flexible it will be on the European level and the harder it
will be to strike a bargain. Denmark, which is the only member state in which
parliament can actually co-decide about the national position in the Council, is a case in
point. The Danish delegation is often the least flexible one in Council negotiations and it
often explains its inflexibility by reference to the domestic decision-making procedures
which put firm constraints on it (Hayes-Renshaw/Wallace 1997: 232). One can easily
imagine that decision-making in the Council would become virtually impossible if all
member states duplicated the Danish decision-making procedures.
Thus, there is a trade-off between improving implementation and deteriorating
efficiency of decision-making in the Council. The EC and its member states have to
strike a careful balance between a functioning European bargaining system on the one
30
This is noted by Lisa Martin (1995) with respect to the access to European decision-making through
national parliaments.
30
hand and acceptable implementation rates on the other. If they prefer to improve
implementation rates it might be necessary to accept that agreement on further progress
of European integration will become more difficult to reach.
31
Appendix
Implementation Rates
Legal Implementation Rates 1990-1997 (Percent)
BEL
DEN
FRA
GER
GRE
IRE
ITA
LUX
NET
POR
SPA
UK
1990
91.7
96.6
93.5
95.3
84.5
91.2
81.7
90.1
93.1
84.0
93.5
94.6
1991
88.0
97.0
95.0
92.9
89.6
88.6
76.5
86.9
90.0
85.5
92.0
94.7
1992
90.5
96.0
93.0
89.9
88.3
91.1
89.1
88.4
93.1
89.2
90.2
93.2
1993
90.7
95.4
89.7
88.9
88.1
88.7
88.9
90.7
92.4
89.2
90.1
92.3
1994
89.7
97.6
92.3
91.0
86.7
91.9
88.4
93.7
93.7
89.4
91.2
96.5
1995
89.5
97.9
92.7
92.9
89.8
92.8
88.7
94.2
97.2
90.0
93.1
95.1
1996
92.4
98.2
91.8
93.5
91.1
93.0
89.6
93.4
97.3
91.8
94.7
94.2
Sources: EC Commission 1991-1998
Change in Implementation Rates
Change
Implementation Implementation
Rate
Rate 1993/96 as
1990-1992
1993-1996 compared to
1990/92
(%)
(%)
BEL
DEN
FRA
GER
GRE
IRE
ITA
LUX
NET
POR
SPA
UK
90.1
96.5
93.8
92.7
87.5
90.3
82.4
88.5
92.1
86.2
91.9
94.2
90.6
97.3
91.6
91.6
88.9
91.6
88.9
93.0
95.1
90.1
92.3
94.5
.57%
.77%
-2.34%
-1.23%
1.67%
1.44%
7.85%
5.14%
3.34%
4.49%
.41%
.38%
Change
1993/96 as
compared to
1990/92
(Percentage
Points)
.5
.7
-2.2
-1.1
1.5
1.3
6.5
4.5
3.1
3.9
.4
.4
1997
91.8
97.0
93.6
93.6
92.8
94.1
92.4
94.2
96.4
93.5
95.1
94.7
32
Data for the Independent Variables of the Institutionalist Model
Gross Domestic Product (in current prices, billion ECU)
BEL
DEN
FRA
GER
GRE
IRE
ITA
LUX
NET
POR
SPA
UK
1990
152.6
101.7
941.5
1182.2
65.3
35.9
861.2
8.1
223.4
53.1
387.5
769.6
1991
160.6
104.7
971.7
1391.5
72.1
37.5
931.1
8.8
234.8
61.8
427.6
818.7
1992
171.7
109.6
1022.1
1522.3
75.6
40.4
941.7
9.8
248.9
71.1
446.0
809.3
1993
180.8
115.2
1066.8
1630.9
78.6
41.5
842.0
11.0
267.3
70.1
408.6
805.9
1994
193.6
123.1
1122.6
1725.3
82.5
45.4
855.6
12.3
284.0
71.5
407.1
857.1
1995
205.9
132.5
1176.2
1845.2
87.4
49.2
831.4
13.3
302.5
76.9
428.1
841.6
1996
208.4
137.7
1217.5
1854.0
96.8
55.3
956.5
13.8
309.2
81.9
462.7
902.5
Source: Eurostat 1997: 208
Gross Domestic Product per Capita (Purchasing Power Standards per capita)
BEL
DEN
FRA
GER
GRE
IRE
ITA
LUX
NET
POR
SPA
UK
1990
15,313
15,302
16,114
17,046
8,539
10,583
14,886
21,197
14,832
8,709
10,966
14,527
1991
16,293
16,474
17,163
16,071
9,249
11,532
15,895
22,934
15,521
9,568
12,031
14,708
Source: Eurostat 1997: 210
1992
17,399
16,739
17,575
17,080
9,837
12,551
16,449
24,577
16,144
10,076
12,206
15,453
1993
18,025
17,775
17,307
17,142
10,223
13,191
16,126
26,103
16,510
10,596
12,354
15,705
1994
18,929
19,049
17,920
18,325
10,799
14,706
17,059
28,074
17,447
11,197
12,668
16,406
1995
19,337
20,023
18,544
19,063
11,322
16,022
18,304
29,134
18,473
11,585
13,230
16,516
1996
20,424
20,889
19,307
19,656
11,773
18,106
19,075
30,639
18,990
12,252
13,971
17,958
33
Data for the Independent Variables of the Liberal Model (1990-1992)
Country
government
coalition (cabinet)
government government
majority in
majority in
lower house? upper house?
BEL
until Aug 1991:
CVP, PSC, SP, PS,
VU
since Sep 1991
CVP, PSC, SP, PS
until Nov 1990:
KF, V, RV
since Dec 1990:
KF, V
until May 1991
PS
May 1991-Apr 1992:
PS, GE
since Apr 1992:
PS, MRG
since 1982:
CDU/CSU, FDP
CDU/CSU, FDP
yes
number of
number of
partisan
additional
veto players institutional
veto players
5
0
yes
4
0
no
3
1
no
2
1
no
1
1
no
2
1
no
2
1
until Sep 1990: 2
no
Oct 1990 until 2
Dec 1990:
yes
1
CDU/CSU, FDP
yes
1
until Mar 1990:
ND, PASOK, KP
since Apr 1990:
ND
since Jul 1989
FF, PD
Jul 1989-Apr 1991
DC, PSI, PRI, PSDI,
PLI
since Apr 1991:
DC, PSI, PSDI, PLI
since Jul 1989:
CSV, LSAP
since Nov 1989:
CDA, PvdA
until Sep 1991:
PPD/PSD, CDS
yes
since Jan 1991: 2
no
3
0
no
1
1
no
2
1
3
4.4
DEN
FRA
GER
GRE
IRE
ITA
LUX
NET
POR
SPA
UK
yes
yes
number of
veto players
1990-1992
(avg.)
4.6
3.3
2.6
2.9
0
2.1
yes
yes
5
0
yes
yes
4
0
yes
2
0
2
yes
2
0
2
yes
2
0
1.6
1
0
1
1
2
1
0
1
since Oct 1991:
yes
PPD/PSD
since Nov 1989:
no
PSOE
since 1979:
yes
CP
no upper house
upper house has no absolute veto power
Sources: European Political Data Yearbook 1992, 1993, 1994; where necessary, data was amended by
reference to Ismayr (1997).
34
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