Before one can truly say that a directive has been turned into practice, it has to be enforced on levels as low as local administration. The chain is logical but it puts the capacity of European public administration into a test.
The Member States, which are closer to daily life, have primary responsibility over the implementation of directives. National governments also transpose directives into national law, i.e. they legislate according to the goals of the directives. The European Commission scrutinises Member States and ultimately makes sure that common rules are respected in the Member States. If that isn’t the case, theinfringement procedure launched by the Commission can lead to a fine issued by the European Court of Justice.
The transposition rate of directives is above 90 % (page 320 of a book from 2010), which is why professor Neill Nugent doesn’t think transposition is a major issue. However, he notes that there are differences in the speed at which EU legislation is adopted to the national law. In a report published in October 2014, the European Commission cites tackling late transposition as a ”long-established priority” in its policy. Mónica Martín Roig from Durham University points out that the number of infringement procedures has lately fallen, which is good news.
While, as Neill Nugent writes, perfection can’t be reached, one can analyse the reasons for poor implementation. The complexity of EU law is one of them. Nugent argues that national administrative capacities differ and that in most cases poor implementation stems from misunderstanding or incapacity rather than revolt.
Motivation and resources
Although the reasons for failure are mainly benign, there are factors increasing the risk of intentional non-compliance with EU legislation. National interests, the concept one can rarely avoid in discussions related to international cooperation, are one. If the new directive causes overwhelming trouble to a country, it can be tempted to be soft on those disobeying the law based on the directive.
The kind of situations described above can highlight the discrepancy between the resoucing and the motivation of different institutions. The Commission, from which the original legal text emanates, is inherently committed to enforcing EU law, while national governments are ultimately constantly weighing the costs and benefits of taking the rule seriously.
What is paradoxal is the fact that the resources of the Commission are rather limited in this regard, despite its presumed motivation. The efficiency of the infringement procedure as a means of deterrence can be brought into question since most infringement cases never reach the European Court of Justice. Moreover, like Martín Roig’s text notes, the Member States can rather easily afford to pay their fines. Speaking of money, the financial resources of the Commission are also rather limited considering the scope of the tasks it is assigned carry out.
How to govern?
What kind of an institutional structure would produce the best results in the unusual European setting can be debated. A more hierarchical structure, in which the Commission would be given more power, would solve the paradox of motivation and resources.
It is important to note that the centralisation of power could provoke dissent in national capitals (as Mónica Martín Roig puts it, ”there is strong evidence that institutionally restricted governments […] have lower likelihood of compliance”), and what’s more, mainly in vain, bearing in mind that poor communication and lacking expertise seem to lie behind most problems in implementation. As a community, the European Union is after all based on trust and free will rather than authority and coercion, like the rather amicably built infringement procedure illustrates. A pluralist form of government, echoing the principle of subsidiarity, is presented as an alternative to heightened hierarchy in Martín Roig’s text.
Giving the Commission more tools to deal with cases where an EU law is simply neglected would increase the feeling that laws are there for a reason. However, since most cases seem rather mundane, radical change might be exaggerated and risky in this context.