Beyond legal compliance in EU multilevel implementation

Eva Thomann (European University Institute) & Fritz Sager (University of Bern)

By Eva Thomann and Fritz Sager

EU implementation research very much emphasizes member states’ legal compliance with EU law. However, as has been stated elsewhere before, implementation is more than the mere transposition of EU directives into national law. Rather, policies change while being put into practice. As policymaking continues, policy outcomes vary widely between member states and may not correspond with the original policy objectives. This has become apparent again as the asylum or austerity crises challenge the EU’s problem-solving capacity.  In our JEPP special issue “Moving beyond legal compliance: Innovative approaches to EU multilevel implementation”, we take a closer look at the implementation stage in the EU. Rather than focusing on conformance with EU policies, we  “zoom in” on implementation performance and ask how domestic actors problem-solve when interpreting EU law.

Policy implementation is a political process in which EU directives are re-interpreted and adjusted to domestic contexts and political priorities. In a multilevel system such as the EU, implementation is subject to two opposed forces: Europeanisation on the one hand, domestication on the other. Domestication results from domestic choices of non-prescribed or non-recommended policy options. This tension results in an important variety of implementation strategies that the generic category of compliance can no longer capture. Instead, there are many nuances between member states, regions, municipalities and even individual actors in how they implement EU policies. Only recently are these nuances being studied more systematically, for example, under the heading of “customization”.

The contributions assembled in the Special Issue help us understand the diversity in how EU member states put EU directives into national political practice. They analyse the interplay of domestication and Europeanization dynamics from various understudied perspectives: customized transposition, motivations and roles of individuals implementing EU policy, interactions between national, regional and municipal governance levels, the Europeanization of enforcement, and the effectiveness of different implementation strategies.

The collection offers two main findings. First, Europeanization dynamics strongly influence the direction of domestication of EU policy. Accordingly, the broad diversity of national customization practices remains hidden when only considering (non-)compliance.  Second, not all policies are equally prone to domestication. For example, the less EU directives allow for integration into national policies, the more they are domesticated – be it by legislative drafters, be it by street-level bureaucrats. This happens, for instance, if EU requirements are incompatible with national political preferences; or if the relationship between EU and national policy is ambiguous, and implementing agents have discretion. When decentralized actors are given discretion, they also need power and capacity for a successful policy performance.

Domestication dynamics are likely to influence the acceptance of distant EU directives at the local level. However, they can also lead to distributive injustice in terms of policy provision. Such questions are of direct relevance for the legitimacy of EU policies. Our collection offers new approaches to address the trade-offs between conformance and performance. Thereby, it contributes to a future study of multilevel implementation that accounts for implementation diversity between top-down and bottom-up forces.

Federal challenges and challenges to federalism. Insights from the EU and federal states

John Erik Fossum (ARENA Centre for European Studies)
John Erik Fossum (ARENA Centre for European Studies)

By John Erik Fossum

The basic question that this special issue collection (guest edited by John Erik Fossum and Markus Jachtenfuchs) addresses is: What may we learn from thinking about the EU in federal terms? Our survey of the literature shows that there are three categories of federal-type comparisons in the realm of EU-studies. These are across-systems comparisons; within EU-comparisons (member states, issues, policies and diachronically); and what we may term implicit comparisons, i.e. studies that borrow aspects from federal systems without explicit reference to the federalism dimension. A number of these are important and path-breaking analyses. But when we hold the body of literature on EU federalism up against the body of literature on EU studies, we are struck by the former’s limited and quite scattered nature. It is readily apparent that the federal dimension in EU studies is clearly underdeveloped in comparison to other fields and subfields, as a consequence of the fact that the euro-federalism perspective lost the theoretical competition to the international relations perspective. That meant that the theoretical competition between neo-functionalism and intergovernmentalism set the terms of debate. Federalism on its part has had a limited framing effect on the field of EU studies. If we look more broadly we see that this problem is amplified by comparative federalism’s relatively underdeveloped nature.

The contributions to this collection show that there are good grounds for reinvigorating the discussion of federalism in the EU context, through relying on an explicit and self-conscious approach to how such a reinvigorated effort should proceed. The issue is not simply to establish ‘how federal’ the EU is, but also to consider whether federal theory and practice may have to be adapted to take proper account of the EU and its many distinctive features, not the least its uniquely differentiated nature. In effect, we cannot usefully address the former unless we have come up with a viable answer to the latter. The contributions to this collection approach these questions through comparison and theoretical-conceptual reflection oriented along two main lines of inquiry. The first focuses on the relationship between federalism and democracy, and includes contributions from John Erik Fossum, Arthur Benz, Nicole Bolleyer and Lori Thorlakson. The second places the emphasis on the relationship among the governments of federal systems, with emphasis on intergovernmental relations, and includes contributions from Robert Csehi, Sergio Fabbrini, and Markus Jachtenfuchs and Christiane Kasack. Michael Keating ends the collection with a bird’s eye view of federalism, and highlights federalism as a set of analytical principles. He discusses this from the interesting angle of rescaling.