As European politicians engage in heated debates over whether and how new rules can help the European Union (EU) to get back on a path of stability and prosperity, they will inevitably have to answer the question of how they will ensure compliance with any new European rule they propose. Reaching agreement over new rules at the European level is a long and difficult process. Political Science research has long attempted to raise awareness for the fact that the adoption of EU rules does not necessarily mean that these rules will actually be applied domestically. Member states regularly ignore supranational requirements, delay their application, or divert the contents according to their national preferences. After all, in the absence of a supranational executive body with a decentralist reach, it is the member states which apply EU policies. Whether new policy provisions will be effective thus crucially depends on the national reaction to them: Will they be absorbed, delayed, ignored, or openly contested? With its focus on the initiation of judicial review by national governments against supranational administrative acts adopted by the European Commission, this study focuses on the emergence of open conflict over the application of EU policies. It investigates the reasons underlying governmentsâ decision to initiate actions for annulment and thereby accuse the Commission of wrongdoing before the Court of Justice of the European Union (CJEU). When and why do governments perceive this to be an optimal strategy or an optimal response to supranational administrative acts? What is the role of this legal instrument that has so farâand in sharp contrast to the instruments of infringement as well as preliminary reference proceedingsâreceived so remarkably little attention by Political Science scholars? This study offers several answers to these questions. It proposes that the reasons to subject acts adopted by the Commission to judicial review are often political rather than legalistic. The hope to evade policy misfit and the chance to engage in legal activism by trying to trigger judicial law-making through the Court are often more important than the actual illegality of the Commissionâs actions. This implies that when supranational requirements in the form of supranational administrative acts (a) create high adaptation costs by creating a high degree of policy misfit and (b) also offer opportunities of judicial law-making due to their reliance on rather indeterminate legal concepts, member state governments are most likely to respond by initiating annulment litigation.
Since the late 1980s, a substantial amount of research has been dedicated to this question of how member states react to supranational requirements (Treib 2008). Scholarship in this area rests on two (formerly separate) strands of research: research on policy implementation and research on the role of international law and regime effectiveness. As the EU is an entity somewhere between an international regime and a federal polity, it has become a natural meeting point for scholars with a background in Comparative Policy Analysis focusing on implementation effectiveness and scholars with a background in International Relations interested in whether or not international regimes are able to induce compliance by sovereign states.
Up until the 1970s, when researchers of public policy became interested in questions of policy implementation, translating adopted policy into practice seemed to be a fairly unproblematic issue. The challenge in effectively addressing societal problems was perceived to revolve around the adoption of committed and effective policy. Once this adoption occurred, turning effective policy into practice should be merely a technicality. Over the course of the 1960s, however, scholars observed several dedicated attempts to address societal problems that proved to be surprisingly ineffective (Mazmanian and Sabatier 1983: 3). This apparent gap between the expected and observed effectiveness of public policies prompted a number of research efforts that laid the groundwork for research on policy implementation to become a distinct branch of Comparative Policy Analysis (e.g., Pressman and Wildavsky 1973; Bardach 1977; Mayntz 1977; Scharpf et al. 1976; Lipsky 1980).
This strand of research was motivated by surprises regarding the problematic nature of policy implementation. In contrast, debates over questions of compliance within the field of International Relations were rather fuelled by the unexpected ability of several international regimes to actually induce sovereign states to comply with international rules.
When these two previously separate lines of research discovered the EU as a joint research subject, they sought to analyze how well member states actually absorbed supranational rules and requirements domestically. Pioneering studies on policy implementation in the EU discussed whether implementing EU policies was more or less problematic than implementing strictly national policies (e.g., Krislov et al. 1986; Siedentopf and Ziller 1988). Scholars with a background in International Relations were drawn to the EU as an international regime that was perceived to be unusually capable of ensuring compliance. These researchers sought to discover how this system managed to make member states absorb supranational requirements and whether this was in fact the case (e.g., Chayes and Chayes 1993; Downs et al. 1996; Abbott et al. 2000).
Against the background of these normative roots, research focusing on compliance in the EU context has attempted to find methods of reducing noncompliance. To this end, most studies have addressed the question of why noncompliance seems to be a bigger problem in some member states than in others. Finding the source of observed variance regarding implementation performance would indicate how the apparent implementation gap could be closed.
One such source receiving particular attention in this regard is the institutional and policy-specific mismatch between supranational requirements and the domestic status. For some member states, complying with EU requirements necessitates much more far-reaching adjustments than for others. Undertaking these adjustments has consequently been argued to be more cumbersome and problematic in these states (Duina 1997; Knill 1998; Knill and Lenschow 1998). This misfit between supranational demands and national arrangements has, however, not been the only factor discussed as a determinant of national compliance records. Additional determinants include the number of relevant veto players with access to the domestic implementation process (Guiliani 2003; Haas 1998; Haverland 2000; Mbaye 2001), as well as the lack of administrative capacity (Siedentopf and Ziller 1988; Steunenberg and Toshkov 2009). These explanations have accumulated one by one, resulting in a rather eclectic list of potential factors influencing national noncompliance. This list includes the domestic system of interest mediation (Lampinen and UusikylĂ€ 1998; Mbaye 2001), public opinion regarding EU integration (Bergmann 2000; Mbaye 2001), national party politics (Treib 2003), and member statesâ cultural predispositions regarding the general role of law (Falkner et al. 2005; Sverdrup 2004).
While the list of potential explanatory factors has continuously grown, the empirical scope of EU compliance research has remained restricted. Most studies in this sector have focused on patterns of implementation effectiveness in the context of the EUâs environmental, social, or transportation policy, while neglecting policy sectors more central to the European project, such as agriculture, state aid, or regional policy (Franchino 2005). This restricted sectoral scope has been widened somewhat by efforts to include areas of negative integration (Blauberger 2009a, b, c). Nevertheless, a substantial sectoral imbalance continues to prevail.
Furthermore, existing scholarship almost exclusively focuses on compliance in the context of EU legislation, primarily on compliance with directives (e.g., Mastenbroek 2003; Falkner et al. 2005; Toshkov 2008). However, relevant EU requirements often take on forms other than legislation, such as soft law, Treaty provisions, or supranational administrative acts. Only recently have studies begun to take an interest in the question of how national reactions to EU requirements depend on the specific characteristics of these requirements. One example is the study by Haverland et al. (2011) that analyzes national reactions to directives adopted through legislative procedures and to directives adopted autonomously by the Commission within the same sample. Such studies show that extending the empirical scope of compliance research beyond EU legislation can complement existing scholarship in a valuable way. Thus far, however, our knowledge of how member states typically react to EU requirements in forms other than legislative directives remains fairly restricted.
Finally, EU compliance research has had a hard time fulfilling its normative expectations. As discussed above, EU compliance research has strong normative underpinnings. Analyzing the causes of noncompliance should enable researchers to formulate recommendations for how compliance in the EU could be maximized. However, most causes of noncompliance prove to be the institutional characteristics of domestic political and administrative systems. Changing these characteristics is not only inherently difficult but also questionable from a normative point of view. This problem has recently been discussed by Toshkov as âthe quest for relevanceâ in EU compliance research (Toshkov 2011). While Toshkov suggests adjusting research designs in order to enhance the practical relevance of findings, adjusting research questions seems to be a more promising solution. Whenever studies search for the determinants of noncompliance by analyzing the sources of empirical variation regarding cross-country patterns of noncompliance, these studies will (almost inevitably) identify explanations for noncompliance that emphasize the role of institutional, economic, and political differences between member states. However, these are inherently difficult to change. Therefore, this study adopts a different strategy by turning to investigate the effect of specific aspects of the EUâs compliance system on national reactions to EU requirements. Specifically, it asks about the political role of one specific element in the EUâs compliance regime: that is, the action for annulment.
Such a focus on the link between the characteristics of the EUâs compliance regime and national behavior is not completely new. Existing research has already established that, for example, the high levels of precision and obligation in EU rules, combined with the extensive degree of delegation required to enforce these rules, have been responsible for the generally high level of compliance within the EU (Abbott et al. 2000). Similarly, the high degree of juridification of EU politics is thought to ensure the relatively low level of rule violations in comparison to other political regimes (ZĂŒrn and Joerges 2005). Other research refers to the combination of management tools that minimize the risk of involuntary noncompliance with enforcement tools that minimize the probability of conscious noncompliance in order to explain domestic compliance patterns (Tallberg 2002). A special focus on the role of CJEU proceedings has been adopted by Panke (2007) and Börzel et al. (2011). Panke (2007) shows how CJEU proceedings have helped to align member states with EU law, while Börzel et al. (2011) try to explain why some member states allow infringement proceedings to escalate further than others. These studies demonstrate that when we redirect our research questions from attempts to identify the sources of noncompliance to attempts to explain how certain characteristics of the EUâs compliance regime affect national reactions to EU requirements, our research findings permit meaningful, constructive recommendations.
This study addresses the shortcomings in existing scholarship on compliance in the EU described above by asking the question of why national governments respond to EU requirements in the form of supranational administrative acts by initiating judicial review in the form of annulment litigation.
With this empirical focus on national reactions to supranational administrative acts, this study extends the generally restricted empirical focus of mo...