European rules as 'law of the land'? Towards optimalisation of EU Member State compliance.

• Author: de Waele, Henri
• Position: Report

Introduction

For many lawyers, politicians and policy officials in the European Union, it has always remained a glorious pipe dream to achieve and maintain a maximal effectiveness of all the rules adopted. In accordance with United States' constitutional terminology, this would denote a situation in which the laws and principles originating from the EU are no longer considered foreign and external to the national legal systems, but are regarded everywhere as part of 'the law of the land'. Such a situation, in which Member State compliance is both optimal and natural, has remained a desideratum up to the present day, however utopian it may have seemed from the outset.

In the meanwhile, an abundant literature on compliance has been steadily amassing. Especially in the past decade, scholars have been hyperactive in researching, proving and disproving the relevance of numerous parameters believed or alleged to influence Member State practises, implementation strategies, and the success ratio of various types of EU rules (for overviews, see Mastenbroek 2005; Sverdrup 2007; Treib 2008). Yet, studies on the general prerequisites and facilitating factors for successful compliance in abstracto have so far not been conducted. Moreover, the research up until now has had but two main focal points, namely 1) the transposition, implementation and execution of EU rules (treaty provisions, directives etc.), and 2) the practise of national and European administrative bodies, such as the Commission and governmental departments, decentralised offices and (quasi-) autonomous entities. By consequence, the literature at present is replete with black holes on at least two counts: first, as regards studies on the actual enforcement of EU rules, the application thereof 'on the ground', in everyday reality--despite recent calls to broaden our view and incorporate this dimension in future research (e.g. Treib 2008: 18-19; but see Versluis 2007). Second, too little is known about the conduct of the judiciary, i.e. the state of compliance with EU rules by judicial bodies, the third and supposedly 'least dangerous branch' of government (Bickel 1962). The latter gap may be due to the fact that legal scholars, after a relatively strong presence at the birth of this field of research (e.g. Krislov et. al. 1986; Snyder 1993; Weiler 1994) appear to have withdrawn in the mid-1990s, and chiefly left the debate to political scientist and students of public administration.

The present article, written from a lawyer's perspective, is a first attempt at overcoming the current dearth: by taking a comprehensive view on what constitutes a member state, encompassing all three governmental powers (legislative, executive, judicial), and also, by considering compliance as both process and output, from the adoption of the rules concerned, up to and including their factual application and enforcement. Nonetheless, the author considers as the main void to be filled an outlining of the route towards optimalisation, leaving empirical issues aside for now, and bypassing the (unresolved as ever) debate on what the decisive factor(s) might be that trigger, tempt or induce Member State authorities to comply. This approach is, to a great extent, predicated upon the author's conviction that it may well be impossible to locate the 'holy grail' and conclude that particular debate once and for all, at least on short notice. Said 'grail' might not even exist at all: for all we know now, compliance may well come down to an inchoate multitude of factors, factors which are so random and so reliant on time, space and context that it is impossible to make sound inferences valid for all other situations. This supposition is strengthened by the fact that the accession of new EU members in 2004 and 2007, rather than bringing us closer to uncovering the true and universal parameters at play, has shed less light than was originally hoped for, as evident from the clashing assertions in the recently published research concentrated on the performance of the EU-I0 and EU-2 (contrast e.g. Sedelmeier 2006 and Toshkov 2008 on the one hand with Falkner & Treib 2008 on the other).

In what follows, we shall first clarify a number of terminological and methodological issues, inter alia the notion of effectiveness, the constitutive elements of compliance, the EU rules and instruments concerned, and the various actors at play. Next, we shall discuss the main sticking points encountered in earlier scholarship on compliance, and canvass the present knowns and unknowns in the field. Hereafter, we will look at the avenues and opportunities for optimalisation, addressing the main layers of authority and various branches of government in the Member States in successive order. The outmoded unitary actor approach, though still adhered to by some theorists of European integration, is thus deliberately left aside. For our purposes, it is decidedly unhelpful at any rate to regard Member States as monolithic structures, and cling to the highly fictitious idea that they possess a single drive and mindset.

During our exploration of the possibilities for optimalisation, several improvements and modifications will be suggested. Hereby, two specific topics will receive separate attention, namely a new Dutch legal framework aimed at ensuring compliance with European law by decentralised public bodies, and also, the highly topical issue of private enforcement of EU law. In the final paragraph of this paper, some limitations and negative aspects of the pursuit of optimal compliance will be sketched. Particularly, the dominant approach in the EU as regards ensuring full effectiveness will be critiqued, arguing that this approach may have many more detrimental and counterproductive effects than is commonly acknowledged.

Booting Up: Some Terminological And Methodological Issues

Effectiveness

What is meant by the term 'effectiveness' with regard to legal rules? The celebrated scholar Francis Snyder has taken it to mean the fact that 'law matters', that 'it has effects on political, economic and social life outside the law, apart from simply the elaboration of legal doctrine' (Snyder 1990:3). In the 'real world' under consideration here, that of the European Union, we may distinguish between several types of effectiveness, such as the enactment of EU policy into legislation by the European institutions, the execution of EU regulations by the Member States, the transposition of EU directives into domestic law; recourse to litigation in national courts on the basis of EU rules, or the use of EU law by economic undertakings, other organisations and individuals, in the sense, following Max Weber, that they orient their behaviour in relation to European law (cf. Rheinstein 1966:3-5).

As such, effectiveness is an issue of public policy, but it is an issue which is certainly not unique to the EU and common to most contemporary states. A main cause of ineffectiveness is generally found to be the tension (perennial, but only properly acknowledged in the modern age) between centralised steering and decentralised action (see e.g. Teubner 1983; Handler 1986). In the EU, this tension was thought to be mitigated by the principle of 'institutional autonomy', entailing that European law is principally applied and enforced through national regulatory frameworks, with only a residual role for supranational supervision, monitoring and control mechanisms. Thus, in the system of shared administration that characterises the integrated European legal order, the primary responsibility for law observance lies with the Member States themselves (Jans et al. 2007:200; see also Rideau 1985:864; Treib 2008:5). In this respect, the European multi-level system resembles the German system of co-operative federalism, in which federal legislation is carried out by the administrations of the Lander, much more than the US model of dual federalism, where each level has its own bureaucracy to put the respective laws into practise (Scharpf 1988). This absence of a strictly hierarchical, command-and-control type of relationship is thought to be beneficial to the EU rules' effects on political, economic and social life, as in the application of these rules, a considerable amount of flexibility is retained. Simultaneously, this does place a greater strain on a member state's scarce resources, which are distributed unequally across the EU, and often even unequally distributed within a single country (Shapiro 2004:255-7).

Compliance

The concept of 'compliance' is closely related to the notion of effectiveness, and denotes a state of conformity or identity between an actor's behaviour and a specified rule (Raustiala and Slaughter 2002: 539). Thus, the compliance perspective also starts from a given norm and asks whether the addressees thereof actually conform to it (Treib 2008:4). Compliance aims at achieving effectiveness. Effectiveness may however also exist without compliance proper, for example, if a practice already happens to be in conformity with what a norm requires.

The general rule on compliance in EU law is that a Member State is accountable for any deficiency or negligence, at whatever level of government it may lay. Thus, it may not plead its internal, decentralised or functional devolution of power so as to escape the obligations incumbent upon it with regard to the application and enforcement of European norms and instruments (EU Treaty: Article 4; ECJ, Konle v Osterreich, 1999, and Commission v Italy, 2002, amongst others). Under limited circumstances however, non-compliance may be tolerated: in those rare situations in which there exists an 'absolute impossibility' to meet the goals of the European rule concerned, in particular due to technical reasons (ECJ: Blackpool, 1993), when the European rules themselves allow for derogations (e.g. Directive 91/689, article 7: "In cases of emergency or grave danger, Member States shall take...