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The successful transposition of European provisions by member states: application to the Framework Equality Directive


Abstract and Figures

The present study aims to explain variation between member states in compliance with provisions of a European Union (EU) law. Predictions are derived about the effects of technical fit, discretion, Commission warnings, and conflict in the Council on the probability of member-state transposition of separate EU policy requirements. Hypotheses are tested on the level of compliance of 15 member states with 27 major provisions laid down in the Framework Equality Directive (2000/78/EC). Extensive analysis of documents and reports from key informants provided information on member-state transposition progress at the end of 2004 and 2006. Results show that the domestic adaptation costs to a provision play an important role for member-state transposition success: high levels of fit and provisions granting discretion improve member-state transposition success. Formal warnings by the Commission lead to a better compliance record, while conflict in the Council does not affect the successful transposition of provisions.
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The successful transposition of different provisions by member states: An
application to the Framework Equality Directive
Asya Zhelyazkova, Department of Sociology / ICS: Utrecht University
René Torenvlied, Department of Sociology / ICS: Utrecht University and University of
The present study aims to explain variation between member states in compliance with provisions
of an EU law. Predictions are derived about the effects of technical fit, discretion, Commission
warnings, and conflict in the Council on the probability of member-state transposition success
with separate EU policy requirements. Hypotheses are tested on the level of compliance of 15
member states with 27 major provisions laid down in the Framework Equality Directive
(2000/78/EC). Intensive analysis of documents and reports from key informants provided
information on member-state transposition progress at the end of 2004 and 2006. Results show
that the domestic adaptation costs to a provision play an important role in member state
transposition success: high levels of fit and provisions granting discretion improve member-state
transposition success. Formal warnings by the Commission lead to a better compliance record,
while conflict in the Council does not affect the successful transposition of provisions.
Key words: non-compliance, provision-level differences, transposition, goodness-of-fit,
Policy implementation is generally understood as the transmission of the outcomes of
collective decision making into implementers’ actions. Ideally, a measure of compliance
with European Union (EU) policies should include the appropriate actions by national
policy-makers, and even the behaviour by street-level bureaucrats delivering services to
citizens (O’Toole, 2000).
The present study aims to describe and explain variation in the transposition success
of member states regarding specific provisions of an EU law for different periods of time.
Transposition success is defined as the extent to which national implementation measures
are in congruence with the requirements of EU policies. Currently, studies of EU
compliance use multiple indirect indicators for member state performance in the
implementation of EU laws (Hartlapp and Falkner, 2009). Many studies use infringement
procedures instigated by the Commission as an indicator for non-compliance (Mbaye,
2001; Perkins and Neumeyer, 2007). However, this measure is subject to the strategic
behaviour of the Commission and may be biased (Börzel, 2001). Other studies use delays
in the transposition of EU directives as an indicator for non-compliance (Mastenbroek,
2003; Kaeding, 2008; König and Luetgert, 2009). However, transposition rates refer to
member states’ notification reports to the Commission regarding national laws (Hartlapp
and Falkner, 2009). There is no guarantee that the national laws reported indeed
transpose the directives adequately.
One important exception is the study by Falkner et al. (2005) on the implementation
of EU social policy by member states. The authors apply the criterion of correctly
transposed legislation to indicate the moment in time at which there exists a complete
match between the policy intent as expressed in a directive and the actions of a member
state. This approach has the advantage that the exact timing of transposition success can
be verified for each member state. However, the timing of correct transposition does not
inform us about developments in compliance before member states fully complied with a
directive. Moreover, their measure defines compliance with the entire directive. Yet, the
prescribed activities of member states are specified in the different provisions of a
directive, and member states might comply with certain provisions, while failing to
comply with others. Thus, a measure of compliance with EU provisions is more
appropriate (Thomson, 2009b).
In the present study, we introduce the concept of transposition success as a new
indicator for compliance. We build on the work of Falkner et al. (2005) about the
correctness transposition measures by: (1) moving the analysis to specific provisions of a
directive and (2) studying member states policy developments at different points in time.
We introduce a theoretical framework based on expected costs of compliance and non-
compliance with provisions of EU directives. Costs of compliance and non-compliance
do not only vary across member states and directives, but also across member states and
specific provisions within a directive. For example, member states might have established
laws and practices that are compatible with certain aspects of an EU law, but not with
others. In addition, the provisions of an EU law could vary with respect to the discretion
they grant to national implementers.
To test hypotheses, the present study combines qualitative data collection with a
quantitative research design. More precisely, we rely on elaborate content analysis of
numerous implementation reports about the transposition of the Framework Equality
Directive (2000/78/EC) by 15 member states. Case studies on the implementation of this
specific directive focus mostly on only one or few member states and their compliance
with the directive as a whole (Dimitrova and Rhinard, 2005; Falkner and Treib, 2008;
Casado Asensio, 2008). By contrast, we apply statistical analyses to a single case by
moving to a lower level of analysis: the provision level. Such a research design allows for
an in-depth comparison between different aspects of a directive and member states, while
holding constant characteristics at the directive-level – thus locating our research between
large-n and case study approaches.
Member states’ compliance record with EU requirements has attracted increasing
academic attention over the last decades (Mastenbroek, 2005), giving rise to numerous
hypotheses about possible explanatory factors. One main hypothesis, however, has
received broad scholarly acceptance: the hypothesis that non-compliance is only a
temporal phenomenon. Sooner or later member states are supposed to transpose an EU
law correctly due to supranational pressures by the Commission and the ECJ and
domestic influence by national (sub-)actors with vested interests (Héritier et al., 2001).
However, national policy-makers often experience problems when implementing
specific EU requirements, which could be left unnoticed by supra(national) organizations.
Transposition problems can become visible at the domestic level only after national court
cases result into decisions that are inconsistent with the EU requirements. Furthermore,
extensive supranational scrutiny of all national transposition measures is a time-
consuming and costly process, which depends on the resources and policy considerations
of the Commission (Hartlapp and Falkner, 2009). We view the successful implementation
of an EU rule as a function of the costs for meeting an EU rule and the expected
consequences of disobeying it. Thus, we use costs as a heuristic to introduce factors that
affect the transposition of EU provisions across member states.
One of the most widespread hypotheses on EU implementation is ‘the goodness-of fit
hypothesis’: member states’ transposition success depends on the level of compatibility
between the requirements in European directives and existing national policies and
institutional arrangements. The logic is that the goodness-of-fit affects the costs of
adaptation for member states to comply with the European requirements (Héritier, 1996).
Public authorities might not be inclined or able to bear these costs (Börzel, 2003; Falkner
et al., 2005).
The goodness-of –fit hypothesis has been criticized by scholars on the grounds that it
is under-theorized, lacks proper specification, and has limited explanatory power in
empirical analysis (Knill and Lenschow, 1998; Mastenbroek, 2005). Some scholars have
modified their theoretical arguments and claim that misfit is necessary, but not sufficient
to explain non-compliance. Thus, scholars include auxiliary factors, such as veto players
(Haverland, 2000) or the preferences of domestic decision-makers (Steunenberg, 2006).
Others have dismissed the misfit hypothesis as irrelevant (Mastenbroek and Kaeding,
2006) because of lack of empirical support.
We follow the critique that the goodness-of-fit hypothesis remains underspecified
because scholars do not clearly spell out the nature of the costs that emerge from the
incompatibility between European directives and domestic regulations. A European
directive incurs different types of costs on member states and (sub)national actors
depending on the objectives of the directive and the characteristics of member states. As
a result, costs are highly contextual, and depend on the nature of the EU directive. For
example, the implementation of EU anti-discrimination directives incurs normative costs
on domestic actors who do not identify with the norms as stipulated in a directive (see
Dimitrova and Rhinard, 2005). A different type of costs is associated with the legal-
administrative costs for public authorities to design laws that are both compliant with the
EU directive and do not disrupt related domestic structures. Such costs could be referred
to as ‘technical misfit’.
The present study focuses on such legal-administrative costs
created by the incompatibility between national legal texts and legal practices, and each
specific provision of the Framework Equality Directive.
By shifting the unit of analysis from the directive to the provision level, we further
specify the relation between ‘goodness-of-fit’ and compliance in two respects. First,
existing case studies on the relation between misfit and compliance often focus on only
few important provisions of a directive and draw conclusions about the level of misfit for
the whole directive (Haverland, 2000; Bailey, 2002). This approach is problematic as it
leads to a selection bias, since these important provisions reflect the most politicized
issues in a directive. However, directives generally consist of numerous technical
provisions that address different legal aspects and methods to achieve the goals of the
directive. These provisions are not likely to be highly politicized, but could still lead to
substantial differences in judicial interpretation.
Second, provisions contain more specific policy requirements than directives as a
whole. A focus on the provision level helps specify in more detail the nature of the costs
incurred on implementing actors. For provisions that refer to concepts and definitions of
discrimination (i.e. direct and indirect discrimination) the costs are defined in terms of
their legal compatibility with the existing definitions in domestic systems and whether
these definitions are interpreted accordingly in national courts. Even the smallest
adjustment of a definition in a national law could lead to major changes in numerous
national documents. For provisions that refer to sanctions against discrimination and
procedures fighting existing discrimination practices, costs relate to the necessary
changes in the practical implementation of directives by (sub)national actors (Bailey,
2002). These provisions might require changes in the legal procedures, practices, and
routines of (sub)national actors if sanctions and procedures are not sufficiently “effective,
proportionate and dissuasive”. In both cases, expert evaluation reports help identify the
legal consequences for member state governments to introduce laws that comply with
specific provisions. We formulate the following hypothesis:
H1: Member states are more likely to comply with provisions that are more compatible
with existing domestic legal documents, institutions and practices.
Member states’ adaptation costs are also influenced by the level of discretion laid
down in an EU provision. Executive discretion refers to the granting of discretionary
powers to national agencies charged with implementing a decision. Higher levels of
discretion increase the discretionary boundaries around the decision outcomes contained
in the directives (Epstein and O’Halloran, 1999). Thus, when higher levels of discretion
are granted to member states, wider ranges of policy performances are compatible with
the decision outcomes contained in a policy (Steunenberg, 2006; Thomson et al., 2007).
In other words, we expect that the level of discretion decreases the costs of adaptation to
a specific EU provision and consequently increases the likelihood of compliance.
H2a: Member states are more likely to comply with provisions that grant discretion to
national implementers.
Furthermore, one could expect that discretion affects the relationship between
technical fit and transposition success. More precisely, provisions that allow for a number
of implementation outcomes are expected to facilitate transposition especially because
national implementers can introduce few or no changes and, thus, preserve existing
legislation and practices. Thus, member states that lack established policies on a
provision could choose to implement an alternative that is closest to the specific national
context. As a result, discretion downplays the differences between lower and higher
levels of technical fit on member states’ transposition success. By contrast, the effect of
fit is expected to be stronger for provisions that constrain the choice of national
H2b: The difference in compliance between lower and higher levels of technical fit is
larger for provisions granting limited discretion than provisions granting extensive
discretion to member states.
Scholars generally predict a negative relation between discretion and delays in
transposition by member states (Thomson et al., 2007; Kaeding, 2008; Steunenberg and
Toshkov, 2009). The argument is that higher levels of discretion oblige member states to
choose between different policy alternatives to be implemented, which can give rise to
domestic conflict and subsequently delays in the transposition process. However, at least
in the long run, delays in transposition are not necessarily related to the correctness of
transposition measure, which is the main focus of the present study.
The Commission and infringement procedures
Theories on enforcement view compliance as a function of the expected costs from
the likelihood of detection and credible threat of sanctions. As a result, rigorous
monitoring and formal sanctions are expected to increase the costs of non-compliance. In
the European context, increased rigor in the Commission monitoring is reflected by
infringement procedures (Tallberg, 2003). The Commission has extensive powers to issue
warnings to member state governments with a questionable implementation record, and
to pursue formal infringement procedures before the European Court of Justice (ECJ) in
cases of persistent non-compliance. Given that the Commission has the power to propose
punitive fines against member states that violate EU law, court litigations increase the
costs of non-compliance for member states as the threat of sanctions becomes imminent.
Studies also report a negative relation between the instigation of infringement
proceedings and delays in transposition especially after the initial stage of sending ‘letters
of formal notice’ (Zhelyazkova and Torenvlied, 2009).
H3: Member states that received a warning from the Commission are more likely to
comply with the provisions of a directive.
Conflict in the Council
We expect that conflict in the Council affects the transposition success of national
governments. Implementation theory stresses that debated issues can result in ambiguous
and incoherent decision outcomes which constrain the efficiency of implementers (Hill
and Hupe, 1992, McCubbins et al., 1989; Torenvlied, 2000). In addition, the more
conflict exists during decision-making, the more likely it is that the interests of some
member states will not be incorporated in the decision outcome (König and Luetgert,
However, in the European context conflict in the Council increases the vigilance of
the Commission with respect to problem-prone policy issues. As a result, the
Commission could allocate resources to manage and enforce compliance by member
states through informal bargaining, dispute-settlement strategies and credible threat of
sanctions (Tallberg, 2003).
In addition, member states can commit to the transposition of controversial issues
when unequal practices can lead to negative externalities to all member states (Majone,
2001; Franchino, 2007). Based on these considerations, Zhelyazkova and Torenvlied
(2009) predict and find a positive effect of conflict in the Council on member states’
compliance with EU directives.
We, therefore, expect that conflict in the Council on a particular provision has a
positive effect on member states’ transposition success.
H4: Member states are more likely to comply with provisions that were debated during
the Council meetings.
Data collection
The dataset used in the present study was compiled on the basis of implementation
reports that evaluate the transposition success of member states with each of the
provisions of the Framework Equality Directive (2000/78/EC). This directive was
adopted with the purpose to put in place a general framework to ensure equal treatment of
individuals in the EU, regardless of their religion or belief, disability, age or sexual
orientation, as regards to access to employment or occupation and membership of certain
organizations. The Framework Equality Directive has a number of characteristics that
make it highly suitable for the present study. First, it touches upon a controversial topic
and, hence, had at least some potential to cause problems during the implementation
process. Second, it covers different policy issues related to both policy content and
enforcement mechanisms, which allows testing provision-level hypotheses.
In order to obtain information about the level of compliance of member states with
each separate provision of the directive, we first used information from three extensive
reports published by the European Trade Union Institute (ETUI) at the end of 2004. The
data in the ETUI reports are based on responses from trade unions in the member states to
a questionnaire regarding the transposition of the directive in their national contexts. In
addition, we supplemented the information with expert interviews with the authors of the
reports to ensure a proper understanding of the implementation process. The ETUI
reports and expert interviews provide an important first step to assess the transposition
performance of member states with the provisions of the Framework Equality Directive
by the end of 2004.
The second major source of information is the various publications from the
European Network of Legal Experts (ENLE). These publications consist of country-
specific and more general comparative evaluation reports on member states’ progress
with the implementation of anti-discrimination directives. The reports cover the changes
made to national law and the development of enforcement mechanisms in accordance
with the directive requirements until 7 January 2007. Based on the information provided
by ENLE, we were able to cross-validate the data collected from the ETUI reports until
the end of 2004 and supplement the existing dataset with information on member states
compliance until the end of 2006.
Dependent variable: measurement
We identified the compliance problems that member states experienced during the
implementation of the provisions of the Framework Equality Directive. In this study, a
provision is defined as an entire article or a numbered sub-article of a directive with
which member states should comply through appropriate national legislation. This
encompasses almost all provisions in the directive with the exception of the standard
provisions that relate to the deadline of transposition and the Commission report. We also
excluded one specific provision pertaining only to Northern Ireland. In total, we obtained
data on the transposition performance of 15 member states regarding 27 provisions of the
Framework Equality Directive.
Member states’ transposition performance was coded to indicate whether a member
state fully complied with each of the provisions (coded as 1). If the reports explicitly
mentioned and described a problem with the way a specific provision was transposed,
transposition performance was coded as 0. For example, one provision relates to the
partial reversal of the burden of proof, which states that “it shall be for the respondent to
prove that there has been no breach of the principle of equal treatment” and not for the
Based on the implementation reports, however, the Dutch legislation did not
apply the shift in the burden of proof in cases of victimization by the employer. In the
extreme case, Italy was criticized for failing to insert the provision on the shift of the
burden of proof in its national legislation. We coded member-state compliance with EU
provisions for both 2004 and 2006.
Independent variables: measurement
For the operationalization of goodness-of-fit we used an approach similar to Falkner
et al. (2005), who measured total misfit on an ordinal scale with three categories: ‘low’,
‘medium’ and ‘high’ misfit. In this study, the scale is reversed so that a higher value
refers to a better technical compatibility. The goodness-of-fit scale was constructed on
the basis of country reports for each of the 15 member states on anti-discrimination
legislation after the adoption of the Framework Equality Directive and before the
transposition process had started.
Based on the expert evaluations from the reports, we coded the level of fit as ‘low’ if
no policy or practice existed in a member state corresponding to a provision of the
Framework Equality Directive or the legal interpretation of the existing policy is
completely contradictory to the objective of the provision. The level of technical fit was
evaluated as ‘medium’ if one or more of the following conditions applied:
(1) Some practice exists, but no general policy;
(2) Some policy exists, but no general practice;
(3) National policies/practices have limited scope or should be reviewed to see
whether they meet the requirements of the provisions.
Technical fit was coded as ‘high’ if the country experts emphasized that few and not
substantive legal changes were necessary to fully comply with a provision. Based on the
data from the country reports, we were able to extract information on the goodness-of-fit
for 16 out of the 27 provisions (240 cases)
The measure on discretion employed in this study is based on previous research that
defines discretion as the number of provisions that grant powers to member states in the
implementation process relative to the total number of provisions in a directive (Epstein
and O’Halloran, 1999, Franchino, 2004; Thomson et al., 2007). In the present study,
however, discretion is measured at the provision level. Therefore, a distinction was made
between provisions that grant discretion to member states (coded as 1) and those that do
not (coded as 0) (Thomson, 2009). A provision grants discretionary powers if it allows
states to choose between different alternatives in the transposition process
. For example,
while the directive requires that member states should introduce legislation against age
discrimination, Art. 6 of the directive allows for differences in treatment under conditions
such as “fixing for occupational social security schemes of ages for admission or
entitlement to retirement or invalidity benefits” (Directive 2000/78/EC). We excluded
provisions that refer to delegating powers to the Commission. Thus, our measure of
discretion is based only on provisions relevant to the member states
Infringement procedures initiated by the Commission are measured at the member-
state level, since the reasons for their instigation related to the whole directive rather than
specific provisions (either non-notification or limited transposition). This variable is
coded as 1 if the Commission opened an infringement procedure against a member state.
Since we want to study the effect of infringements on the likelihood of compliance after
2004, we focused only on those infringement cases that were closed after 1
December, 2004.
Conflict in the Council is measured at the provision level. Data on this independent
variable are taken from the “Decision-making in the European Union” (DEU) dataset,
which contains information on the policy positions of member states on the issues in the
proposal for the Framework Equality Directive that were debated during the Council
meetings (Thomson and Stokman, 2003; Thomson et al., 2006). One additional report
provided information on a number of issues that were debated before the Commission
designed the proposal. We closely read the informants’ reports to match each
controversial issue that caused debates during and before the Council meetings with the
respective provision in the directive
. A provision was coded as 1 if there was conflict in
policy preferences between the member state representatives.
Controls: corporatism and government position
We controlled for member-state-level characteristics related to the context of social
and labor law. For example, the level of corporatism is an important factor that could
affect member-state compliance with EU provisions in the context of employment
relations (Falkner et al., 2005). In more corporatist systems the social partners are
strongly embedded in national policy-making and could actively participate in the
transposition process. It is generally expected that such corporatist arrangements can lead
to more delays in the transposition process, since they increase the number of actors who
can veto a policy proposal (Thomson, 2009a; Falkner et al., 2005). However, corporatist
relations are also assumed to be conducive to the creation of policy networks with stable
coordination of government and interest groups, which improve compliance (Lampinen
and Uusikyla, 1998). The present study uses Siaroff’s (1999) quantitative index of states’
degrees of corporatism. The higher the values of the index, the higher the level of
integration of employers’ and employees’ organizations into the policy-making process
within a country.
Another important factor is the position of governments on the left/right dimension.
The political ideology of a government could have an effect on transposition success, as
it is generally expected that Center-Left governments are more likely to support
employment rights policies, while Center-Right governments represent the interests of
employers’ organizations and business associations. Given that the provisions of the
Framework Equality Directive increase employees’ protection against dismissal and
discrimination, it is plausible that Center-Left governments identify with the objectives of
the directive more than Center-Right governments, which leads to better transposition
performance of the former (Treib, 2003).
The control variable left/right position of the member state government is computed
on the basis of data from the “Party Policy in Modern Democracies” project (Benoit and
Laver, 2006). For coalition governments the positions are calculated by weighting the
score for each party participating in government by its relative share of votes and adding
these scores to form the average government position.
Description of member states’ transposition of Directive 2000/78/EC
Table 1 presents the distribution of the dependent variables employed in the analysis.
It shows that member states did experience problems in incorporating the EU provisions
into national legislation in 2004, when almost half of the cases were not transposed
correctly. Little progress was made by the end of 2006 as one-third of the transposition
cases were still incorrect.
---Table 1---
Fig. 1 provides a clearer picture of the differences in transposition success across
different member states for 27 provisions of the Framework Equality Directive. It shows
the number of provisions that a member state had failed to comply with by the end of
2004 (dark) and 2006 (light-grey).
---Fig. 1---
We observe some remarkable differences between standard measures of compliance
such as transposition delays and infringement procedures, and our measure: transposition
success with separate provisions
. First, while the UK, France and Italy did not
experience any delay with respect to the initiation of the transposition process, they failed
to comply with more than half of the provisions of the Framework Equality Directive.
Second, Commission documents reported that member states had transposed all
provisions by the end of 2006 (except for Sweden, which lacked legislation on the age
provisions). However, based on Fig. 1, we observe that correct transposition of all
provisions of the directive was not achieved by any of the member states, even if they all
had notified the Commission of transposition measures.
Thus, Fig.1 clearly illustrates the advantages of using direct measures of compliance
with separate provisions of a specific directive. It also lends support to the findings of
carefully documented case studies on the difficulties experienced by national legislators
when implementing the Framework Equality Directive (Bell, 2008).
Because the dependent variables on compliance are binary, we employ a binomial
logistic regression analysis. In addition, we apply a cross-classified design to account for
the dependence in the observations at the level of the member state and the provision
level. Cross-classified design is appropriate for the analysis in the present study, because
(1) different member states are transposing the same provisions and (2) different
provisions are being transposed by the same member states. This implies that we should
estimate the variation in member states’ compliance created by the crossing of two
random factors (provisions and member states) (Raudenbush and Bryk, 2002). Thus, we
improve on most existing literature, which hardly controls for cross-classified design of
transposition data.
Table 2 reports the results from the null model that tests for random effects both at the
provision-level and the member-state level (Rabe-Hasketh and Skrondal, 2008). The
random-effect parameters show significant residual standard deviation on the dependent
variables both between provisions and between member states. We observe more
variation in the likelihood of compliance across different provisions than across member
states. This observation supports our claim that differences exist not only in the
transposition across member states, but also in the transposition of different provisions
within a directive.
---Table 2---
Table 3 presents the results from the analysis that tests our hypotheses on the
likelihood of member states’ compliance with the provisions of the Framework Equality
Directive for both 2004 and 2006. Models 1 and 2 test the effects on the two different
dependent variables, while Models 1b and 2b include the interaction effect to the
. The coefficients indicate the average change in the probability of correct
transposition of a provision due to changes in the values of a given independent variable.
A positive sign of the coefficients indicates that higher values of the independent
variables increase the probability of correct transposition of a provision, while a negative
sign shows that the probability of correct transposition decreases. The coefficients,
however, do not indicate the precise size of the effect for a change in a given variable x
since the change in the probability due to an increase in the level of this variable depends
on the levels of all factors in the analysis (Long, 1997).
---Table 3---
We observe that the level of technical fit has a significant effect on the likelihood of
correct transposition for both 2004 and 2006 (Model 1a and 2a). The categories ‘low’ and
‘medium’ fit are compared to the reference category ‘high fit’. As predicted, the
likelihood of transposition success is significantly lower for cases with low and medium
fit relative to high levels of technical compatibility with the provisions of the directive.
To assess the magnitude of the effects, we transformed the coefficients into odds ratios.
Odds ratios indicate the factor change in the odds of compliance (relative to failure to
comply) due to changes in the values of an independent variable, holding all other
variables constant
. In the present study, cases with low and medium fit had respectively
0.19 and 0.46 smaller odds of compliance than cases with high fit in 2004. At the end of
2006, the odds of transposition success were 0.24 (low fit) and 0.33 (medium fit) relative
to high fit.
The likelihood of successful transposition by member states depends also on whether
a provision grants discretionary powers to national policy-makers or not. The odds of
compliance in 2004 and 2006 are respectively 6 and 3 times greater for those provisions
that grant discretion than the provisions that do not grant discretion to member states.
Thus, member states are much more likely to correctly transpose provisions that give
implementers opportunities to choose from than provisions that constrain the choice of
implementers. This result is highly significant for both 2004 and 2006 and, thus, it is
consistent with our expectations.
Models 1b and 2b test the prediction on the interaction effect between the level of
technical fit and discretion (Hypothesis 2b). The reference category is the interaction
between ‘high fit’ and discretion. The results on both dependent variables show
significant differences between the marginal effects of ‘medium’ and ‘high’ levels of fit
on compliance when provisions do not grant any discretion to member states. We find
significant differences between low and high levels of fit when discretion is zero only on
the likelihood of compliance before the end of 2004. The coefficients in Table 3,
however, do not give information on the marginal effects of the different levels of
technical fit, when discretion is granted.
To provide a full test to the hypothesis, we computed the marginal effects and the
standard errors of low and medium levels of fit relative to high fit for discretion equal to
one. The marginal effects show that the odds of compliance for low levels of fit decrease
from 0.24 to 0.10 for 2004 and from 0.32 to 0.07 for 2006 as the discretion moves on the
scale from zero to one. This finding contradicts our hypothesis, because it suggests that
granting discretion to national authorities additionally impedes member states’
transposition success when there is a very low compatibility between national legal
structures and EU requirements. This effect is significant for compliance in 2006. When
we compare the marginal effects of medium and high fit on compliance for different
values of discretion, we arrive at the opposite conclusion. More precisely, the odds of
compliance for medium fit in 2004 and 2006 are respectively 0.37 and 0.25, when
discretion is zero, and 0.81 and 0.62, when discretion is one. This suggests that granting
discretion to national authorities increases the odds of compliance when there is medium
technical fit. The difference between the marginal effects for medium and high levels of
fit is no longer significant when discretion is granted, which is in congruence with our
One possible interpretation of our findings is that very low levels of technical and
legal compatibility are associated with lack of vital knowledge about the consequences of
implementing a particular provision. Granting discretion implies that member states have
different transposition alternatives at their disposal and some knowledge is necessary for
a national authority to be able to select an appropriate transposition measure. As a result,
if a member state must implement a provision that is completely missing in any of it
national legislation, discretion would create ambiguity about which transposition
alternative best suits the particular national legal context (Thomson et al., 2007).
To test the effect of the costs of persistent non-compliance by member states, we also
incorporated the effect of infringement procedures in the analyses on compliance by the
end of 2006. Based on the results from Table 3, the instigation of infringement
procedures by the Commission increased the probability that member states would
correctly incorporate provisions of the directive before 2007 (Model 2a and 2b). The odds
of compliance for member states, against which the Commission started formal
procedures, are three times greater than for member states, which were not confronted
with the threat of litigation. Infringement procedures seem to provide an incentive to
those member states with alleged non-compliant behavior to take measures to comply
with the provisions of the Framework Equality Directive.
Contrary to our expectations, we do not find significant differences in the
transposition of provisions that were debated in the Council and non-controversial
provisions. The non-significant coefficient could be partly due to the limited variation of
the variable, since only four of the provisions that were included in the final analysis
were controversial. Thus, in the context of the Framework Equality Directive we do not
find support for the hypothesis on the effect of the divergence of member states’ policy
preferences on the likelihood of member states’ compliance with EU provisions.
Table 3 also presents the estimates on the effects of the control variables included in
the analysis. The results show that more corporatist countries were less likely to
experience compliance problems in 2004. A change of one point in the scale of
corporatism leads to approx. 1.5 greater odds of successful transposition. However, the
effect of corporatism is not significant in the analysis on member states’ transposition
success at the end of 2006. Government position on the left/right dimension is not
significant in any of the models.
The present study was designed to test hypotheses on member-state compliance with
different provisions of an EU law. Thus, we relaxed the assumption that member states
only transpose directives as a whole. Instead, they might comply with certain aspects of a
directive while failing to comply with others. To explain provision-level variation in
compliance we formulated hypotheses on member states’ adaptation costs and perceived
consequences of non-compliance. We also focused on the correctness of transposition
measures adopted by national policy-makers instead of the timeliness of transposition.
Finally, we analyzed the transposition of the Framework Equality Directive at two
different periods of time. This directive provided an interesting case to analyze provision-
level differences due its high level of controversy and numerous policy aspects. It also
shows member-state compliance with provisions on a specific EU legislation that touched
upon a salient and politically sensitive topic.
Our analyses reveal a number of interesting findings. First, we observed great
variation in compliance both across different member states and different provisions of
the Framework Equality Directive. Our measure of compliance indicated poor
transposition of the provisions of the directive years after the deadline had passed, despite
the fact that all member states had communicated transposition measures to the
Commission. This result is in congruence with recent discussions on the methodological
problems related to commonly used data from the Commission databases (Hartlapp and
Falkner, 2009). It also supports the findings from case studies on the problems
encountered by member states in the implementation of the Framework Equality
Directive (Bell, 2008). While the majority of case studies focus on the problems
encountered by the ‘new’ member states (Dimitrova and Rhinard, 2005; Falkner and
Treib, 2008), our analyses showed that the 15 ‘old’ member states did not perform better
in transposing the provisions of the directive. We improve on existing case studies by
systematically analyzing the variation that exists across all relevant provisions instead of
focusing on only few important aspects of a directive.
Second, our findings reveal that domestic costs of adaptation to the EU requirements
play an important role in defining the choice and opportunities of national policy makers
to comply with EU provisions. Thus, member states are more likely to comply with
provisions that require only marginal changes to existing legal documents (Börzel, 2003).
Furthermore, we find evidence that provisions granting discretion to member states are
more likely to be successfully transposed than provisions that constrain the actions of
national policy-makers. This finding supports the theory that discretion facilitates
compliance (Knill, 2001).
Our expectation that discretion downplays the difference between higher and lower
levels of fit on member-state transposition success is only partially supported. We find
that discretion facilitates member states’ transposition success for medium levels, but not
for low levels of technical fit. Given the small number of observations in the present
study, future work should shed more light on the interplay between different levels of fit
and discretion on compliance with EU provisions.
Our findings show that the Commission behavior affects member states’ transposition
success. More precisely, member states that received a formal warning by the
Commission achieved a better transposition record by the end of 2006 than member
states that were not sanctioned. This finding supports theories on supranational
enforcement of EU law that the infringement procedure forces member states to correct
mistakes in the transposition process out of fear of litigation and subsequent sanctions
(Tallberg, 2003). By contrast, conflict in the Council did not have a significant impact on
member states’ transposition success.
With a view to the goals of the present study, our findings should be put into a proper
perspective. We studied member states’ compliance with different provisions of only one
directive. Ideally, it would have been better to test our predictions on different provisions
in several directives. However, given the nature of the dependent variable (transposition
success), collecting such data is a complicated and time-consuming process. On the
flipside, this research design allows us to focus on variation in compliance due to
provision-level factors, without confounding effects from directive-level factors. As a
result, our study should be seen as a first attempt to uncover the mechanisms that drive
compliance with separate provisions and the extent to which general implementation
theories can be applied to a lower level of analysis. This point has implications for future
research, since many of the common directive-level factors on compliance have no
equivalent at the provision level. Further work should shed some light on whether
alternative operationalizations of goodness-of-fit and discretion could better explain the
transposition success of member states with separate provisions. For instance, our
measure of fit excludes member state’s normative costs for implementing anti-
discrimination policies, which are very relevant for at least some of the provisions of the
Framework Equality Directive (Dimitrova and Rhinard, 2005).
Future work should, also, incorporate more precise information about member states’
policy preferences on specific provisions. This could explain the non-significant effect of
preference-based explanations in the literature once these preferences are aggregated to
the level of the directive (Thomson, 2009b).
More general indicators for adaptation costs can be derived from different
conceptualizations of ‘goodness of fit’. A distinction is made between institutional or
structural fit (Knill and Lenschow, 1998) and ‘policy fit’. Another distinction concerns
the difference between formal and informal policy fit (Falkner et al., 2005).
The reports were published by the European Monitoring Centre on Racism and
Xenophobia (EUMC) in 2002 as part of the project ‘Implementing European Anti-
Discrimination Law’.
The reports lacked information about the level of fit on the protection of disabled
persons or anti-discrimination practices on age and other related provisions.
It is important to note that provisions that grant discretion are not necessarily associated
with high goodness-of-fit. An example is the provision on positive action to favor
disadvantaged groups. In this case, the level of fit is measured as the extent to which
member states had existing practices on positive action. Greece and Finland, for instance
lacked tradition in positive action. The provision, however, gave a lot of flexibility to
member states in the extent to which they can compensate disadvantaged groups.
Since provision-level measures of discretion do not currently exist, we follow the logic
of existing directive-level measures. A binary variable should be sufficient to capture the
differences between more and less restrictive provisions.
For example, one particular point of debate concerned what approach should be adopted
to tackle discrimination against disabled persons: “a generic approach” vs. “reasonable
adjustment”. This controversial issue was matched with the provision on “reasonable
accommodation of disabled people” in the directive.
Note that transposition progress refers to the extent to which member states fully
complied with the provisions of the directive. Adjustments that partially improved the
level of compliance with an EU provision are left out of the analysis, if the informants
stated that transposition problems still existed.
We also pooled the compliance data for both time periods into a single regression to
check for the robustness of the results. The alternative analysis produced very similar
estimates to the ones reported in Table 3.
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is the estimated coefficient for the effect of a variable x from the
logistic regression model, for a change of δ in the values of x, the odds are expected to
change by a factor of exp(β
X δ), holding all other variables constant (Long, 1997)
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Tables and Figures:
Table 1: Member-state compliance with the provisions of Directive 2000/78/EC
Compliance 2004 Compliance 2006
None or incorrect transposition 174 (45%) 136 (34%)
Correct transposition 212 (55%) 261 (66%)
386 (100%) 397 (100%)
Fig. 1: Member state’s noncompliance with separate provisions at the end of 2004 and 2006
0 5 10 15 20
uk el de lu fr it es nl ir dk at se pt be fi
problematic provisions (2004) problematic provisions (2006)
Table 2: Cross-classified logistic regression: null model
Compliance 2004
Compliance 2006
Fixed effects
.350(.451) .902 (.336)
Random effects
S.d. (Provision-level) 1.800(.344) 1.321(.258)
S.d. (member-state-level) .959(.248)
Log likelihood -213.674 -224.014
The actual number of cases differs from the maximum possible number of 405 (15 X 27), because we
could not identify the transposition performance of member states in all cases. In addition, there are more
missing cases on the dependent variable for 2004 than for 2006.
Table 3: Cross-classified logistic regression on the likelihood of compliance with EU provisions
Compliance 2004 Compliance 2006
Model 1a Model 1b Model 2a Model 2b
Low fit -1.661
-1.138 (.709)
Medium fit -.779
- .987
- 1.376
Discretion 1.893
1.391 (1.239)
(.700) .753(1.108)
Infringement procedure ----- ----- 1.097
(.404) 1.226
Conflict in the Council
-1.267 (.921) -1.391 (1.239) -.998 (.768) -1.019 (.736)
Low fit * Discretion -----
-.872 (1.658)
-1.456 (1.444)
Medium fit * Discretion -----
.782 (1.094)
.903 (1.094)
Corporatism .382
(.173) .408
(.173) .204 (.145) .223 (.151)
Left/Right position .025(.073) .023(.073) .058(.060) .058(.062)
Random effects
S.d. (Provision-level) 1.442(.382) 1.410(.394) 1.164(.310) 1.094(.311)
S.d. (member-state-level) .431(.284)
Log likelihood -120.271 -119.426 -126.851 -124.934
Wald χ
N 229 234
High level of fit and High fit * Discretion are the reference categories; Random effects estimated for
16 provisions and 15 member states; *** = p < .01, ** = p < .05, * = p < .10
... There are controversial data, whether strong opposition of MS at the time of new law discussion at EU, leads to a problems with transposition (Thomson, Torenvlied, & Arregui, 2007) or, opposite, to a more smooth transposition, because all debatable issues were resolved at the time of discussion at EU (Zhelyazkova & Torenvlied, 2011). ...
... a) Position of the member state at the time of negotiation of new legislation at EU institutions, before adoption, i.e. level of conflict at EU (Falkner et al., 2004;Thomson et al., 2007); b) Level of authority of the member state at EU level (linked with economic power), (Börzel, 2002); c) Level of discretion left to member states for transposition (Thomson et al., 2007;Zhelyazkova & Torenvlied, 2011) Willingness to comply a) ideology at government/parliament -which party ideas are the leading, attitude towards healthcare and EU values in general (Falkner, 2005;Sedelmeier, 2012); b) ideology in society -public opinion regarding EU values, travel for healthcare, relations between citizens and state (Mbaye, 2001); c) level of heterogenicity of public's views (split or consolidated society); d) gap between the EU policy goals and pre-existing domestic policy -"goodness of fit" (Duina, 1997;Mastenbroek & Kaeding, 2007); e) is it a new law or amendment of an old one (amendments are less compliant) (Thomson et al., 2007); f) behaviour of people and governments in relation to infringement proceedings (Lampinen & Uusikylä, 1998;Mbaye, 2001); g) impact of interest groups (Falkner, 2005;Heritier, 2001), for example, manufacturers, patient's unions, power of corresponding Ministry. e) attitude towards the law obedience in society (Toshkov, 2007). ...
BACKGROUND Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare had a deadline for transposition into the national laws of member states, 25 October 2013. This Directive described the rights of EU citizens in case if they want to travel to another MS to receive medical care. This Directive had certain effects on the health systems of MS. OBJECTIVE AND RESEARCH QUESTIONS The goal of this study is to explore the state of knowledge (and gaps of knowledge) regarding the effects of the Directive on health systems of MS, to identify the explanations of the effects found in the literature, and to assess such effects and explanations up against Europeanization concept and implementation theory. ANALYTICAL FRAMEWORK An analytical framework was developed based on the understanding of Europeanization as a central penetration of national systems of governance and a set of implementation theories, in order to assess the findings from the literature review. Based on the readings of theoretical literature, the possible effects of the Directive were classified into three categories: structural, individual and economic effects on national health governance. Moreover, assumptions about effects were formulated on the basis of mechanisms involved in implementation. METHODS AND DATA A scoping review was performed, based on the search for relevant literature available online. Access to most of the full text sources was provided by the UiO library, the other information was taken from open Internet sources. 156 sources were identified and evaluated, effects and factors were identified in the literature, factors were matched with the assumptions from the analytical framework. RESULTS According to the reviewed literature, the following main effects were identified: • Changes in the legislation of the member states aimed at more clear definition of the patients’ rights inside the country amended the local legislation and led to the creation of special institutions (NCP) to provide information and to help individuals exercise their rights to cross-border care; • Mismatch between the Directive and the rules of national healthcare services rationing in certain countries led either to the re-structuring of financing and/or governance of the national healthcare system, or to the EC infringement procedures; • Development of healthcare technologies in EU/EEA countries, such as electronic health records creation, e-prescriptions, telemedicine associated with legal uncertainties regarding the use and payment for those services; • Question of equity and justice in the field of healthcare services for EU citizens: as per literature sources noted, currently, Directive favours CBC for the citizens from wealthy MS, who can afford to pay upfront and who know the foreign languages or can cover extra fees for translation and travel; • Creation of the ERN for the treatment of rare diseases, ~ 30 millions of EU citizens affected. Main explanations for different effects from the analytical framework have been determined as “willingness to comply” and “capacity to comply” and they match with the explanations found in the literature. Determined key factors, found in the literature suggest that the main reason of effects of the directive are linked with: • Political and social ideology in the MS; • Administrative capacity of the MS; • Distribution of welfare and other resources in MS societies. It has been additionally noted that current use of rights under the PRD is very low (only ~0,05% of EU population used in 2018) and that “impact on national health budgets arising from patients wishing to access cross-border healthcare appears marginal” (EC, 2018, p. 8), counts as ~0.004% of the annual budget of the EU for healthcare services. CONCLUSION Different effects on healthcare systems caused by the factors described in theoretical literature were identified. Further research of the impact of the Directive is needed. For the moment, it is not clear how much real impact the Directive will have on the future development of national healthcare systems. Effects depends on the extent to which the actors in the healthcare systems actually utilize these rights and opportunities.
... Theories of enforcement view compliance as a function of the expected costs from the likelihood of detection and credible threat of sanctions. Rigorous monitoring by EU institutions is expected to increase the costs of nonimplementation/compliance (Tallberg, 2002;Zhelyazkova & Torenvlied, 2011). We measure EU compliance monitoring through an indicator on the number of so-called 'reservations' issued by DG REGIO following audits of compliance. ...
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Does the quality of government improve the administrative performance of regions in European Union (EU) Cohesion Policy? This article analyses the relationship between the quality of government and multiple dimensions of administrative performance in Cohesion Policy. Using primary data on government quality combined with EU performance data for the European Regional Development Fund (ERDF) in the period 2007–13, regression analysis is undertaken for 173 European regions. The results confirm that government quality is a key determinant of administrative performance in terms of financial compliance, timely spending and outcomes. The findings support the need for capacity-building in regions with low quality of government to improve policy implementation.
... On the one hand, a high degree of discretion significantly delayed EU implementation (Kaeding 2008;Steunenberg and Toshkov 2009;Thomson et al. 2007). On the other hand, Zhelyazkova and Torenvlied (2011) observe that with discretion, the correctness of transposition increased, as Member ...
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This paper presents results of a case study on the implementation of the EU Renewable Energy Directive from 2009 (RED I) in six Member States (Austria, France, Germany, the Netherlands, Sweden and the UK). Through a theoretical lens that combines a historical institutionalist perspective with an actor-centred analysis (Knill/Lehmkuhl 2002), it is shown how Member States’ institutional arrangements, specifically their regulatory styles (Waarden 1995) vis-à-vis the regulation of the energy sector, resulted, to a large degree, in the reaffirmation and recreation of policy preferences and regulatory approaches during Member States’ implementation of the EU policy. Although all Member States under study actively reacted to EU adaptation pressure, institutional persistence was observed in all cases. Based on these empirical findings, the main argument of the paper centres around the concept of experimentalist governance (Rangoni/Zeitlin 2020; Zeitlin 2016) as a promising approach to improving the governability of the European Union, specifically in light of institutionally founded implementation challenges. In comparing the governance approach reflected in RED I and the current European Green Deal framework, I analyse to what extent the respective governance approaches are in line with the tenets of experimentalist governance. I then discuss whether an only partial commitment to experimentalist governance, e.g. the absence of an actually enforceable overarching goal, might create new pitfalls without solving old challenges.
... As more comparable data on actual discretion become available, these could be analyzed quantitatively. Second, the discretion index is usually not only interested in delegation to the Commission but also other actors such as EU member states (Zhelyazkova and Torenvlied, 2011) or EU agencies (Migliorati, 2020; see also Wonka and Rittberger, 2010). Our approach could easily be extended in these directions, thereby proving useful beyond the question of Commission discretion. ...
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One key question in the study of the European Union has always been the extent of Commission discretion. We take the discretion index, typically used by principal–agent scholars to measure the Commission's designed discretion, to measure its actual discretion. Commission designed discretion can today be computationally generated with sufficient accuracy across all secondary acts. The study of designed discretion thus reaches considerable maturity. Therefore, we argue that scholars should prioritize studying Commission actual discretion. We present a systematic and transparent investigative technique based on the discretion index, which we use as a roadmap to guide our empirical investigation. The index facilitates the accumulation of knowledge across policy areas and time by providing exact values for Commission discretion. We illustrate our approach with the Development Cooperation Instrument.
... Voting rule and voting outcome have no significant effect on noncompliance; dissent does not even take the expected sign. The result confirms the findings of previous research that majority voting and conflict in the Council do not delay transposition (Mbaye 2001;Kaeding 2006;Haverland and Romeijn 2007;Linos 2007;König and Luetgert 2009;Luetgert and Dannwolf 2009;Zhelyazkova and Torenvlied 2011). The extension of majority voting has not changed the consensual culture in the Council. ...
As a human interaction, legal discourse is directed to communicate aspects such as obligation, commands, duties, rights, permission and prohibition. These aspects are realised differently in Arabic and English and, thus, need to be translated carefully. The present paper focuses on examining prohibition in the Iraqi penal code and its English translation. This is carried out by compiling a parallel corpus of the Arabic original text and its translation to analyse whether the translation carries any divergence from the source text that can result in an incompatible message being conveyed to target audience. More precisely, parallel concordances are generated to outline the diverse prohibition-coding linguistic structures in Arabic source texts and how they are translated into English. Results are then investigated qualitatively to inspect any divergences in the translation. The corpus-based analysis yield a variety of structures used to communicate prohibition in Arabic and English. The results also indicate that albeit the regulative function is restored, there are differences between the original text and its English translation in terms of the force of imposition of prohibition.
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What does EU law truly mean for the member states? This book presents the first encompassing and in-depth empirical study of the effects of 'voluntaristic' and (partly) 'soft' EU policies in all 15 member states. it examines 90 case studies across a range of EU Directives and clarifies contemporary issues in political science, integration theory, and social policy. The study concludes that major implementation failures prevail and that, to date, the European Commission has not been able to adequately perform its control function.
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The repercussions of European integration on national policymaking have increasingly drawn scholarly attention, yet, the determinants of national adaptation to the European Union are still poorly understood. This article takes issue with evolving arguments which grant crucial importance to the ``goodness of ®t'' between European provisions and national rules and practices for explaining the degree of national adjustment to European requirements. In the case of the implementation of the Packaging and Packaging Waste Directive in Germany, the Netherlands and the United Kingdom, the country with the greatest mis®t, the United Kingdom, adapted more successfully than the country which only needed incremental adjustments, Germany. The German record was also worse than the Dutch, despite the higher adaptation pressure of the latter. The case study suggests that the number of institutional veto points that central governments has to face when imposing European provisions on their constituencies, ultimately tend to shape the pace and quality of implementation, regardless of differential degrees in the goodness of fit.
While policy implementation no longer frames the core question of public management and public policy, some scholars have debated appropriate steps for revitalization. And the practical world stands just as much in need now of valid knowledge about policy implementation as ever. Where has all the policy implementation gone? Or at least all the scholarly signs of it? And why? What has the field accomplished? Should a resurgence of attention to the subject be exhorted? And if so, in what directions? This article considers these questions as foci of an assessment of the state of the field, and the argument reaches somewhat unconventional conclusions: There is more here than meets the eye. While modest to moderate progress can be noted on a number of fronts, an initial assessment is likely to understate the extent of work underway on matters quite close to the implementation theme. Research on policy implementation-like questions has partially transmogrified. One has to look, sometimes, in unusual places and be informed by a broader logic of intellectual development to make sense of the relevant scholarship. Policy implementation work, in short, continues to bear relevance for important themes of policy and management. But some of the discourse has shifted, the questions have broadened, and the agenda has become complicated. Research on implementation, under whatever currently fashionable labels, is alive and lively.
List of tables Preface List of abbreviations Introduction Part I. Theoretical Frame of Reference and Analytical Approach: 1. The keywords: European integration, comparative administration and implementation 2. An institutional approach to administrative change 3. The analytical framework Part II. Administrative Traditions in Germany and Britain: Opposing Patterns and Dynamics: 4. The institutional foundation of German and British administrative traditions 5. Administrative reform capacity in Germany and Britain: autonomous versus instrumental administration Part III. Domestic Change and Persistence: The Implementation of EU Environmental Policy: 6. The administrative implications of European environmental policy 7. Germany: the constraints of a static core 8. Britain: the opportunities of a dynamic core Part IV. The Europeanisation of National Administrations: Comparative Assessment and General Conclusions: 9. Comparative assessment: the explanatory value of institutions 10. Towards generalisation: different mechanisms of Europeanisation References Index.