48. Theoretical Perspectives on Improving Policy Implementation
in the EU
Oliver Treib, Ellen Mastenbroek and Esther Versluis
Published in: Paolo R. Graziano and Jale Tosun, eds., Elgar Encyclopedia of
European Union Public Policy. Cheltenham: Edward Elgar, pp. 472–481
The main raison d’être of the EU is to devise collective solutions to problems that individual
member states cannot solve on their own. Recent spending programmes such as the Covid-19
recovery package “Next Generation EU” notwithstanding, the main focus of policy intervention
lies on regulation. Given that the volume of the EU budget is tightly limited, representing but a
fraction of the relative spending power of an average member state, the EU has been dubbed a
“regulatory state” (Majone, 1994). As a consequence, the lion’s share of EU policies consists
of regulatory instruments in the form of legislation.
In fact, the EU has produced an impressive array of laws regulating issues ranging from
product standards to be respected by companies that want to sell their goods in the Single
European Market or standards of environmental quality to rules impacting on core state powers
such as migration and fiscal policy.
All of these regulatory standards need to be put into practice in order to become effective-
as is the case in any political system. In the EU, however, questions of policy implementation
have become particularly important since the implementation structure of the EU is highly
decentralized. This is true for binding EU legislation, and it is even more true for the
implementation of non-binding measures adopted under the Open Method of Coordination (see,
for example, Tosun et al., 2019).
After a bill has been adopted in Brussels, responsibility for its implementation is generally
in the hands of member states: they must ensure that EU law is put into practice. EU directives,
one of two major legal instruments used by EU policy-makers, need to be incorporated into
domestic legislation before they can take effect. This process of legal implementation may also
be required for directly binding EU regulations, which may force member states to adapt or
withdraw existing laws, or even adopt implementing measures. The stage of practical
implementation, too, is mostly delegated to member states. The norms contained in EU
legislation need to be implemented in practice. This involves, first, operational specification,
comprising activities like the establishment or designation of responsible national authorities
and the development of systems and guidelines for implementation. Second, the rules need to
be applied to individual cases. Finally, societal target groups like businesses or individual
citizens need to observe the norms enshrined in EU legislation, and public authorities need to
ensure that any breaches of the norms are effectively detected and sanctioned.
These various stages of policy implementation are supervised by the European Commission
in its role of “guardian of the treaties”. The Commission has the power to initiate infringement
proceedings against member states for violating their implementation duties. These proceedings
can lead up to a ruling of the European Court of Justice and, in the case of persistent non-
compliance, to the imposition of heavy fines. However, the administrative resources and
inspection powers of the Commission are limited. As a result, problems with the
implementation of EU policy often go unnoticed or do not receive follow up by the
Commission, which calls for alternative instruments to make EU legislation work.
Since the early 1990s, research on how EU policies are being put into practice has unearthed a
wide gap between the law in the books and the law in action (for an overview, see Mastenbroek,
2005; Treib, 2014). Processes of legal implementation are often painfully long, with member
states frequently exceeding the given deadlines by years, and often enough end up in
insufficient or incorrect transposition. Target groups find ways around costly or inconvenient
rules, public authorities are frequently unwilling or unable to monitor compliance and sanction
rule violations, and individual citizens often lack the awareness or support to invoke their rights
in national courts.
In other words, the EU’s decentral system of policy implementation seems to be in dire need
of improvement. Having said this, the European Commission has implemented reforms over
the past decades that were directly or indirectly targeted at tackling shortcomings in its system
of monitoring member states’ implementation performance and enforcing breaches of EU law.
However, the literature has produced very little systematic evidence on these improvement
strategies. The core focus of academic analysis has been on understanding and explaining
implementation failure. This ‘misery research’ (Rothstein, 1998, p. 62) has brought us much
insight into what does not work, but the research field could benefit from an alternative
perspective on things that potentially do work in putting EU legislation into practice. We do not
know which strategies have been implemented. We do not know whether there are strategies
that could be employed but have not yet been tested. And we do not know how effective the
previously employed strategies have been and how effective additional strategies may be. As a
first step towards closing this gap, the current chapter presents a theoretical framework that
allows us to draw up a systematic overview of strategies to improve EU policy implementation.
The framework is informed by three different theoretical approaches: rationalism,
constructivism, and managerialism, and it considers improvement strategies to be applied in
three different arenas: the vertical arena (the Commission vis-à-vis member states), the
horizontal arena (member states among themselves), and the domestic arena (domestic
stakeholders vis-à-vis national governments).
The next section first provides a short overview of what we know, on the basis of previous
research, about the size of the implementation gap in the literature and the key driving forces.
We then present the three theoretical perspectives on how to improve EU policy
implementation. On this basis, we outline and illustrate the theoretically possible improvement
strategies in the three arenas. We conclude by discussing how the theoretical framework
presented in the chapter could inform future research on the implementation of EU policies.
What’s wrong with policy implementation in the EU?
One of the main challenges for research on EU policy implementation is that even after more
than thirty years of scholarship, we still do not have very reliable data on the size and shape of
the implementation gap. In many respects, EU legal and practical implementation are still a
‘black hole’ (Mastenbroek, 2005). Despite the availability of myriad quantitative data sources,
none of these options are without problems. There is also a wealth of qualitative case-study
research on both legal and practical implementation, but it is hard to generalize from these
studies, which often cover only a handful of directives, policy areas and/or member states.
Having said that, there is clear evidence that both legal and practical implementation of EU
legislation is ridden with major problems.
For the phase of legal implementation, especially qualitative studies have demonstrated that
member states often need years and years to fulfil their transposition duties, and the transposed
versions often enough diverge in key respects from the provisions laid down in the original
directives (for example, see Duina, 1999; Falkner et al., 2005). However, there is significant
variation across countries, between policy sectors, and over time. With regard to cross-country
variation, several studies have shown that the Nordic countries generally tend to be better
transposers than Southern and Continental countries such as Italy, Greece, Portugal, or France
(Börzel, 2021, p. 30; Falkner et al., 2005; Sverdrup, 2004). In addition, the ‘new’ Central and
Eastern European member states tend to show stronger transposition records than the ‘old 15’
(Sedelmeier, 2008; Toshkov, 2008). Furthermore, there is compelling evidence that
transposition runs more smoothly in some sectors than in others (König & Luetgert, 2009;
Steunenberg & Rhinard, 2010). For example, there are consistently more infringement cases,
relative to the number of adopted directives, in the fields of justice and home affairs,
environment, information society and media, and health and consumer protection than in any
other policy field (Börzel, 2021, p. 33). Finally, there is evidence suggesting that the size of the
transposition gap has become smaller over time (Berglund et al., 2006; Börzel, 2021, p. 31;
König & Luetgert, 2009).
For the phase of practical implementation, an abundance of case studies has unearthed a
wide range of problems in turning EU law into action. Examples show how perfectly transposed
directives do not reach the state of ‘law in action’ because they are not followed up by
appropriate steps in practical application and enforcement. Rule addressees sometimes just
ignore or circumvent EU rules that would involve costly changes to everyday practices and
enforcement actors often do not intervene since they are overburdened, lack the required
training, pursue other priorities, or openly reject the policy goals enshrined in EU law
(Dörrenbächer, 2017; Hartlapp, 2014; Schmälter, 2019; Versluis, 2003, 2007). And in those
areas where individuals could invoke their rights in court, enforcement is often hampered by a
lack of awareness, by legal or financial obstacles that hamper individuals’ willingness to
litigate, and by a lack of support and court access for civil society organizations (Falkner et al.,
2008; Slepcevic, 2009).
Even though the data that underly this diagnosis are far from perfect, there are many
indications that policy implementation in the EU suffers from many systematic flaws. Instead
of continuing to focus on the mechanisms that explain cases of implementation failure, we
suggest that EU implementation research could profit from a shift of perspective towards
analyzing ways of improving the state of affairs. In the next section we will present a theoretical
framework that helps identify possible improvement strategies.
Theoretical perspectives on how to improve EU policy implementation
How can the national implementation of EU policies be improved? To answer this question, we
first present three overarching logics of social co-ordination and control that can be used to
understand the causes of implementation problems in the EU multi-level system. We assume
that knowledge of these causes provides the key to devising suitable strategies for improving
implementation. Inspired by the main approaches to compliance in the International Relations
(IR) literature, we distinguish three modes of social co-ordination and control: managerialism,
constructivism, and rationalism. The latter two of these approaches are close to the main
insights from the broader Europeanization literature, which seeks to explain national adaptation
to EU policy inputs through a rational institutionalist and sociological institutionalist lens,
respectively (Mastenbroek & Kaeding, 2006). The next section then uses these modes to
elaborate improvement strategies to be pursued by the European Commission as the key
‘guardian of the treaties’.
The first logic of social co-ordination and control is managerialism. The main assumption of
this approach is that actors involved in implementation processes are generally willing to put
into practice a given piece of legislation. Implementation problems thus occur involuntarily.
The main reasons for incomplete, late, or incorrect policy implementation are rule ambiguity
and a lack of implementing actors’ capabilities.
This theoretical angle is inspired by the management approach to compliance in IR research
(Chayes & Chayes, 1993), but it does not subscribe to the state-centric perspective of the
original IR approach. It also aligns closely with many theoretical assumptions of the top-down
school in domestic implementation research (Mazmanian & Sabatier, 1983; Pressman &
Wildavsky, 1973), which portrayed implementation as an unpolitical administrative process
which required clearly-stated policy goals, streamlined procedures, and sufficient resources on
the part of implementing actors to be successful.
Managerialism was employed in many EU implementation studies. Among the key findings
of this line of research is that the implementation of EU legislation indeed often is hampered
by limited administrative capacities and problems with the correct interpretation of legal
provisions. Quantitative scholars, for example, have shown that more complex directives are
associated with more transposition delays (Kaeding, 2006; Steunenberg & Rhinard, 2010) and
that measures of member states’ administrative capabilities are associated with higher numbers
of infringement proceedings (Börzel et al., 2010; Mbaye, 2001; Perkins & Neumayer, 2007).
Likewise, qualitative studies have demonstrated that limited administrative resources on the
part of enforcement actors hamper the effective practical implementation of EU legislation
(Hartlapp, 2014; Schmälter, 2019).
Rationalism is the second logic used to understand domestic policy implementation. It is based
on an understanding of member states as utility maximizers. In this view, member states engage
in strategic calculation when confronted with international requirements, such as EU
legislation. Typically, they will balance new legislative requirements with their preferred course
of action, and try to minimize adaptational costs (Downs et al., 1996). Ultimately, when EU
legislation offers no leeway for aligning implementation to these preferences, this may result in
delays, reinterpretation or even outright opposition.
Although the rationalist paradigm in EU studies stems from IR rationalism, the perspective
is also consistent with ‘domestic’ theories on policy implementation such as principal-agent
models, which focus on delegation to, and policy slippage by, implementing agencies (for
example, see Huber & Shipan, 2002), or models of inter-organizational decision-making, which
conceptualize implementation as a process of interaction among networks of interdependent
agencies with effective veto power (Hanf & Scharpf, 1978). These ‘domestic’ models have
been used to understand EU policy implementation as well (see, for example, Dörrenbächer &
Mastenbroek, 2019 for principal-agent models; Steunenberg & Rhinard, 2010 for the role of
multiple veto players). A specific and more deterministic version of this argument was
introduced by the Europeanization literature, which assumes that domestic political actors do
not want to change the policy status quo (Mastenbroek & Kaeding, 2016).
The third logic relevant for understanding domestic implementation is constructivism.
Originating from International Relations theory, constructivism poses a counterweight to
rationalism and argues that rule obedience may not only be grounded in self-interest or ‘fear of
punishment’, but also in a feeling of the actor that ‘the rule is legitimate and ought to be obeyed’
(Hurd, 1999). Policy implementation then becomes the expression of an underpinning logic of
appropriateness. In line with the literature on legitimacy, such moral obligation may exist at the
general or the specific level, ranging from the entire political community or political order as a
whole, to a particular political decision (Føllesdal, 2006, pp. 450-451).
The constructivist paradigm is also congruent with a broader understanding in the domestic
literature on implementation and compliance. Various scholars have depicted policy
implementation as ‘a struggle over the realization of ideas’ (Majone & Wildavsky, 1978, p.
117). And researchers following the social psychologist Tom Tyler (1997) have argued that rule
observance by citizens is driven to a great extent by perceptions of legitimacy, in addition to
instrumental incentives. Scholars of Europeanization, finally, have argued that the presence of
deeply embedded domestic norms that clash with EU legislation, will complicate processes of
policy adaptation (Risse et al., 2001).
Although the constructivist perspective has been less prevalent in the EU implementation
literature, a number of relevant applications exist. Dimitrova and Rhinard (2005) argued that
incompatibilities between the norms embedded in EU policies and deeply-entrenched domestic
norms or ideas can cause major problems of policy delivery. Checkel (2001) demonstrated how
compliance with EU norms resulted from processes of socialization of governmental elites.
Other authors incorporated constructivists perspectives into more encompassing theoretical
accounts, also comprising rationalist and managerialist factors (Börzel, 2021; Börzel et al.,
Improvement strategies: three approaches applied to three arenas
Based on the preceding theoretical discussion, we can identify potential strategies that could
facilitate domestic EU implementation. In presenting these, we focus on the European
Commission. In its role of ‘guardian of the treaties’, it may play a direct role in stimulating
policy implementation, for instance by opening infringement cases or seeking to persuade non-
compliant governments. In its role as legislative initiator, it may entrust other EU or national-
level actors with implementation promoting powers, or even delegate powers to other EU or
domestic institutions. We aim to disentangle what strategies to improve implementation the
Commission induces in different arenas.
In doing so, we introduce a matrix of improvement strategies that combines two dimensions.
Firstly, the strategies are deduced from the three theoretical approaches discussed above: (1)
managerialism, (2) rationalism, and (3) constructivism. Secondly, we distinguish three different
arenas in which improvement strategies could be employed: (a) the vertical arena, denoting
actions to be taken by the European Commission directly vis-à-vis member states; (b) the
horizontal arena, pertaining to strategies that target member states in their relations vis-à-vis
each other; and (c) the domestic arena, which focuses on strategies that seek to elicit activities
of domestic actors vis-à vis their governments or individual implementing agencies.
Combining both dimensions results in a matrix of nine ideal-typical improvement strategies
(see Figure 7.1), which we discuss below.
Figure 7.1: Strategies to improve EU implementation
Help from above
In the vertical arena, managerialist reasoning assumes that the roots of implementation
problems lie in lacking capacity or unclear information. This leads to a strategy we call help
from above, which denotes efforts at vertical capacity building and knowledge transfer.
Potential measures include deploying EU subsidies or EU funding in order to develop
administrative capacities required for mastering the delivery of a given EU policy, issuing
guidelines for domestic implementing actors, or organizing meetings between Commission
officials and domestic implementing actors with the aim of vertical knowledge transfer. Of
these, the Commission has emphasized knowledge-related instruments. Due to the costly
character of the infringement procedure, the Commission has developed several alternative
methods, like package meetings and training sessions. Also, the EU Pilot system allows for
early discussion of cases of misapplication, enabling dialogue between the Commission and
particular member states. Capacity development, in contrast, has been less developed, which
could be due to the fact that the EU is primarily a regulatory state. However, there are examples
of such strategies, like the posting of administrators to Mediterranean countries with
overburdened migration agencies by the European Asylum Support Office.
If implementation problems reflect domestic ideational opposition, the Commission could
employ constructivist mechanisms aimed at internalization of new policy ideas and norms. This
approach results in a strategy we call sermons. Like a priest delivering a sermon to their
congregation, the Commission could try to persuade member state government and
administrations that a given policy is the right thing to do. Concrete measures could include
seminars and training sessions with implementing actors in order to explain the rationale
underlying the policy to be implemented. In reality, these strategies may overlap with
managerialist information-based strategies. There is, as yet, only little research on the actual
use of constructivist improvement strategies in the vertical arena. However, Versluis and Tarr
(2013) have shown that several of the European Railways Agency’s (ERA) activities seek to
persuade domestic regulators of certain best-practice solutions, and several representatives of
member state agencies confirmed that they view their EU-level counterpart as a source of policy
learning and socialization. In addition, the Commission has tried to enhance perceptions of EU
legitimacy amongst the member states, for instance through its Better Regulation strategy,
encompassing impact assessments, improved policy consultation and ex-post legislative
Finally, from a rationalist perspective, the Commission could focus on the strategic
calculation by national governments to implement faithfully or not. In line with principal-agent
theory, we label this strategy police-patrol oversight (McCubbins & Schwartz, 1984). In the
EU, police-patrol oversight means that the EU monitors member state implementation
activities. It has done so actively, by drawing up scoreboards of member state performance,
systematic evaluation reports on policy implementation, or Commission or EU agency
inspections of administrative practices in the member states. Furthermore, violations that are
detected through this monitoring process will have to be sanctioned quickly and effectively. To
this end, the Commission and the European Court already have far-reaching judicial
instruments to punish non-compliant member states. Measures to improve EU sanctions include
the creation or perfection of non-judicial sanctioning mechanisms such as withholding
payments from EU funds to non-compliant member states or increasing the fines for enduring
violations. In addition, we increasingly see EU agencies receiving such responsibilities, for
example, the European Securities and Market Authority being able to issue fines.
Given its lack of inspection powers and administrative capacity, the Commission is strongly
dependent on member states’ capacities for EU policy implementation. Although member states
may be the source of implementation problems, they may also serve as instruments for
improving implementation beyond their borders. This can be realized by organizing horizontal,
inter-state mechanisms for improving policy implementation.
Firstly, managerialist thinking suggests an improvement strategy we refer to as
fraternalism. In analogy to the spirit of solidarity within a group of monks, the idea is to
encourage mutual support between national executives. Concrete measures include
encouraging technical assistance between member state executives or joint inspections of
implementing actors from different member states and creating networks or meetings of
implementing actors with the goal of encouraging horizontal knowledge transfer.
Alternatively, utilizing constructivist insights, we could envisage the encouragement of peer
learning between member states, with a view to facilitating deliberation and learning. Again,
networks are a case in point. They have been presented as sites for continuous interaction
between national governmental units, enabling continuous knowledge exchange, persuasion
and learning and the development of joint operating practices (Hobolth & Martinsen, 2013).
These repeated interactions between peers may further mutual understanding, dialogue and trust
(Heidbreder, 2015) and result in socialization into shared logics and practices. A particularly
important mechanism in this respect is learning within the network, which can take place not
only vertically (see above) but also horizontally, between member state representatives
(Hobolth & Martinsen, 2013).
Thirdly, rationalist thinking suggests peer oversight as an improvement strategy in the
horizontal arena. This strategy involves measures to encourage monitoring and sanctioning
activities of member state governments vis-à-vis other member state governments. In terms of
concrete measures, this could include encouraging the usage of existing judicial enforcement
mechanisms at the horizontal level, in particular employing Article 259 TFEU, which allows
member states to bring another member state before the Court of Justice of the EU. Further
measures include making the results of Commission monitoring efforts public in order to
encourage naming and shaming dynamics among member state governments or creating
European Administrative Networks in order to stimulate peer pressure between the different
administrations. It seems that this type of strategies has been employed much less frequently
than some of the others. In particular, there is the striking underutilization of Art. 260 TFEU.
Such cases are extremely rare, and are reserved to exceptional and highly symbolic cases of
contestation between member states. Perhaps governments prefer enforcement by the
Commission over horizontal enforcement to avoid the conflicts emanating from such
confrontative procedures, but the reasons for this underutilization have not yet been studied
Finally, the European Commission can try to ‘stack the deck’ in favour of more effective
implementation at the domestic level.
Managerialist arguments, firstly, call for a strategy of burden relief. If the executive lacks
critical capabilities or knowledge, societal actors could step in in order to make up for these
shortcomings. Concrete steps to be taken in this direction include encouraging or stipulating
that societal actors need to be incorporated into implementation in order for them to have an
opportunity to feed their expertise into the process, encouraging or stipulating the devolution
of implementation tasks to non-state actors, or deploying EU subsidies to supporting societal
groups. Concrete examples are NGOs providing expertise about Natura 2000 implementation
on the ground in Hungary and Poland, which helped implementation in these countries (Cent et
Relatedly, constructivist approaches suggest an improvement strategy we dub hive-mind.
The aim of this strategy is to encourage learning and deliberation between domestic
administrative, political and non-governmental actors. This strategy could be underpinned by
policy design, i.e. inserting requirements for national governments to include societal actors
into the implementation of a given EU policy. Additionally, national stakeholders such as
NGOs could play an active role by continuously promoting certain values to the national
government, or by orchestrating continuous media reporting, and thereby influencing the public
debate and even public attitude towards a topic (McCauley, 2011). Such framing can in turn
influence governmental implementation behaviour.
Rationalism, finally, suggests an improvement strategy that principal-agent theorists have
dubbed fire-alarm oversight (McCubbins & Schwartz, 1984). It involves measures that allow
domestic administrative actors or societal stakeholders to monitor the implementation activities
of governments and file complaints against alleged non-compliant behaviour. This could
involve stipulating that non-governmental actors need to be involved in policy delivery or
specifying that member states need to create independent agencies that monitor the
implementation of an EU policy. An important example in this category are the steps to
facilitate decentral enforcement. By allowing not only individual citizens but also interest
groups to take legal action against non-compliant governments under class action regulations,
we see an increase in the number of preliminary rulings – a trend whereby the Commission
strategically outsources enforcement to actors at the national level (Hofmann, 2018).
Since the first empirical studies on implementation of EU policies in the late 1980s, we have
learned a lot about the difficulties, obstacles and challenges to ensuring that EU legislation is
actually put into practice. This chapter provided a brief overview of what we know about the
size of the implementation gap and the factors that hamper the effective legal and practical
implementation of EU legislation. In an attempt to move away from the dominant approach in
EU implementation research of focusing on failure, we propose in this chapter to shift the focus
toward what works in order to make EU policy work in practice. In doing so, we suggest that
we need more attention for the strategies employed by the European Commission to improve
implementation processes in the European multi-level system.
Based on an application of three overarching theoretical logics of social co-ordination and
control (managerialism, constructivism and rationalism) to the three main arenas in the EU’s
implementation system (vertical, horizontal and domestic), we outlined nine different
improvement strategies and provided a range of empirical examples for each strategy. In our
view, this taxonomy of improvement strategies could open up a wide range of avenues for future
First, EU implementation scholars could seek to map out systematically which individual
strategies have been employed in the three arenas. A perspective that is sensitive to specific
developments in individual policy sectors might be helpful in this regard as it is likely that more
efforts have been put into improving implementation in core policy areas of the EU such as the
Internal Market or environmental policy than in relatively peripheral sectors such as justice and
home affairs or health.
Second, more research is needed that addresses how these strategies actually work and
which conditions determine their effectiveness. In this context, an important insight is that
concrete empirical activities and reform endeavours are not always easy to connect
unequivocally to one of the three theoretical paradigms. Instead, they may serve different
purposes at the same time. A case in point are European Administrative Networks (Mastenbroek
& Martinsen, 2018). Commonly, these networks enable the exchange of information between
national contact points, which makes them a managerialist strategy. However, by exchanging
information member state representatives can also learn new ways of doing things and engage
in deliberative processes, which would turn them into constructivist instruments. Finally, at
least theoretically, networks could also serve rationalist purposes by providing the basis for peer
pressure or other types of bilateral enforcement.
Third, future research should try to disentangle the positive and negative mutual
interferences between applying the individual theoretical logics. The overlapping theoretical
logics may reinforce each other, but they could also lead to mutual disturbances. It seems
plausible, for example, that managerialist information exchange and constructivist efforts at
stimulating learning could easily co-exist harmoniously, with knowledge exchange perhaps
even forming the foundation for more far-reaching processes of deliberation. At the same time,
pursuing rationalist strategies of monitoring and sanctioning along with managerialist or
constructivist strategies may well undermine the mutual trust required for learning and
socialization, and it may even hamper knowledge exchange as information offered by some
actors might be discredited by others as serving strategic purposes. Learning more about these
preconditions and interrelations would allow us to develop a more thorough understanding of
the optimal combination of managerial, constructivist and enforcement instruments. This would
provide a further impetus to previous theoretical work on the Commission’s ‘management-
enforcement’ ladder (Tallberg, 2002). Furthermore, such work would yield a useful conceptual
basis for evaluating the combined effect of the Commission’s variegated attempts to make EU
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Acknowledgments: This chapter is based on the theoretical framework of a monograph by the three authors
under contract with Oxford University Press (working title: “How the EU makes its legislation work”).