Vol. 15 No.10 (October 2005), pp.896-899

COMPLYING WITH EUROPE: EU HARMONIZATION AND SOFT LAW IN THE MEMBER STATES, by Gerda Falkner, Oliver Treib, Miriam Hartlapp and Simone Leiber. New York: Cambridge University Press, 2005.  404 pp.  Hardback $75.00 / £45.00.  ISBN: 0-521-84994-2.  Paperback $34.99 / £19.99.  ISBN: 0-521-61513-5.

Reviewed by Dagmar Soennecken, Department of Political Science, University of Toronto. E-mail: dagmar.soennecken [at] utoronto.ca .

In COMPLYING WITH EUROPE, a group of German and Austrian political scientists present the results of an ambitious and comprehensive research project funded by the Max Planck Society on the domestic impact of a more recent “soft” style of European (EU) policymaking, namely EU Directives. In contrast to Regulations, that force member states to adopt one standard version of EU Law, EU Directives are “soft” but nevertheless binding policy-making instruments. EU Directives encourage harmonization among member states by setting only minimum standards, thereby leaving a great deal of flexibility to individual member states. States may go beyond the stated minimum or even opt out of certain aspects of a given Directive.

As is to be expected perhaps, the merits of this more recent style of policy-making for Europeanization are not yet clear, from either a theoretical or an empirical perspective. Gerda Falkner, Oliver Treib, Miriam Hartlapp and Simone Leiber dive into the debate by zooming in on EU social policy, an area of significant regulatory expansion in the 1990s, as the authors explain in detail in Chapter 3.

How successful are these Directives in bringing about the Europeanization of EU social policy, or “one social Europe?” In particular, how can we explain differences in their implementation? What discourages/encourages compliance? What role do domestic actors, the EU Commission and the European Court of Justice (ECJ) play? Have states gone beyond implementing minimal standards and why? These are some of the core questions animating this book.

The substantive chapters introduce and evaluate implementation of six representative Directives regarding labor law (which the authors deem the sub-field with the most controversial debates) across all 15 EU member states (at the time when the project started), primarily relying upon data from interviews with national experts. The six Directives discussed are: The Employment Contract Information Directive, the Pregnant Workers Directive, the Working Time Directive, the Young Workers Directive, the Parental Leave Directive, and finally, the Part-time Work Directive.

In a nutshell, the researchers conclude that non-compliance is a problem. All EU member states “misbehave” to some extent, but some states stand out as more frequent offenders than others.  The Netherlands lead the list as most [*897] compliant, with France performing worst. Portugal, Italy, Greece, Belgium, Luxembourg, and Germany are also not doing as well as they should. This overall conclusion is not necessarily new surprising, but the empirical data amassed is perhaps a more important contribution, since all member states (at the time of publication) are included in the study.  What do the authors make of these findings? Falkner, et al., offer a very thorough engagement of the theoretical literature on policy implementation and compliance. Separate chapters at the beginning and end of the book are dedicated to a discussion of the relevant literature. Questions of research design, measurement, and correlation vs. causation are discussed throughout.

The research team arrived at their final conclusion using two steps. First, they tested a number of existing hypotheses, ultimately to find that “no causal condition presupposed by existing theories is able to explain our empirical observations” (p.317). Do states fail to comply because they were unsuccessful in incorporating their own preferences into the EU Directive? Or perhaps failure to comply is an unintended consequence of domestic agency loss? Yet another explanation posits that governments may experience problems in implementing EU directives if they did not consult all relevant domestic actors in the initial EU level negotiations (the “upstream” phase). Moreover, adaptation may be simply difficult if the language of the directive is vague and unclear. Finally, implementation may depend on “the fit between rules and the policy legacy and the organization of interest groups in member states” (p.289). If there is a misfit between the directive and the principles found in a given a member state, implementation will not be easy.

The misfit explanation receives the most detailed attention in the book. Falkner and her colleagues try a number of ways to make this explanation work, but they ultimately conclude that political constellations at the national level can easily override deeply entrenched traditions or regulatory philosophies. But if there are no prior rules and procedures in place, as a counter-explanation suggests (p.294), should it not be easier for member states to implement new EU Directives? This explanation is also not supported by the evidence, say the authors.

Next, the authors re-examine their findings following the “grounded theory” approach. They suggest that member states can be grouped into three clusters of countries, “each showing a specific typical pattern of reacting to EU induced reform requirements” (p.318). The theme uniting the countries in each cluster is cultures of compliance, or more specifically modes “of treating implementation duties.” The ideal-type country clusters proposed by Falkner and her colleagues are the world of law observance, the world of domestic politics, and the world of neglect. Countries in each cluster are united by a set of internalized norms, which together form a culture of compliance. Since cultural factors are typically slow to change, Falkner and her co-authors suggest that countries can move from one world to another, yet only longitudinal studies will be able to track such shifts. Becoming more compliant is an uphill battle, according to the authors, as good compliance needs time to [*898] mature, and many small battles need to be won along the way to create a good culture of compliance (p.330).

As is apparent by the number of hypotheses briefly noted above, not to mention the fact that the analysis covers all EU member states, this book covers a lot of ground. The project brings together three doctoral theses, one postdoctoral project, plus the work of the team leader! Although I appreciate the attempt to be so comprehensive, at times I found myself wondering how else one could have balanced the theoretical findings with such a substantial amount of information.

I also wondered how exactly the three worlds of compliance differed from the misfit hypothesis. Certainly, the misfit explanation relies more heavily on historic institutionalist insights about the importance of rules and procedures, in particular policy legacies, while the explanation ultimately put forth by Falkner and her collaborators favours a cultural/constructivist angle. Still, the norms that bind the countries in the three typologies lead to institutionalized patterns, expectations and cost-benefit calculations (p.329). Why and how do these patterns differ from the ones put forth by the misfit explanation? It would have been interesting if the authors had returned to a discussion of the misfit model and spent more time detailing the differences between the two explanations beyond the obvious cultural angle.

Finally, Law & Courts readers will naturally expect a book on policy implementation, compliance and enforcement of EU law to discuss the role of domestic courts and the European Court of Justice (ECJ). The role of the ECJ is indeed discussed in most detail in Chapter 11, which details the role of the EU Commission (and by extension the ECJ) in bringing about compliance. The rest of the book, however, contains only occasional references to judgments by the domestic courts and the ECJ. The bibliography also contains relatively few references to works on courts or the ECJ. In other words, this is not a book that is interested in theorizing the role of the courts or the ECJ in bringing about EU harmonization.

The chapter on the role of the EU Commission in enforcing compliance is nevertheless an interesting read. It details the political process and negotiations before cases are even referred to (and let alone decided by) the ECJ, and subsequent member state responses in case of a judgment by the Court (usually against) the state in question. Considering that Falkner and her colleagues elsewhere discuss the participation of societal actors in the EU policy process (Ch. 12), it is surprising that this chapter only discusses cases brought to the ECJ in a very top-down fashion, i.e. by the EU Commission. The work of Karen Alter and Jeannette Vargas and others (Alter and Vargas, 2000), which is listed in the book’s bibliography, has certainly shown that societal actors, such as women’s groups, have used litigation before the ECJ to challenge national policies on gender equality. It would have been interesting to know whether the Directives discussed in this book have been subject to court challenges, and if not, why not. Are the reasons legal (i.e. the directives could not legally be challenged) or political? For example, as Falkner and her co-authors suggest, although a [*899] significant degree of variation exists among member states, social partners are overall very involved in EU policy making, even to the degree of being considered “formal co-actors” (p.229). This could be one explanation for the absence of litigation, if there is indeed none. Clearly, this could be an interesting area of future research by scholars interested in social policy litigation.

Overall, Law & Courts readers interested in EU law, especially in social policy convergence, particularly in the area of labour law, will find this an interesting addition to their library. Although it is not intended to be a book on law and the courts (or the ECJ), as mentioned above, the substantive discussion on the involvement of the ECJ in social policy harmonization is nevertheless interesting. To me, the debate about the implementation of EU law also raises interesting parallels to the debate about the implementation of court decisions. Much of the discussion concerning domestic opposition, and administrative vs. political implementation, is familiar. In other words, their discussion could be food for thought for scholars interested in the impact of court decisions. The book would also be useful to graduate students interested in debating methodology and research design, since the book explicitly discusses methodological choices, plus it tackles a large “n” comparison while relying heavily on qualitative data, albeit much of it translated into tables, figures and graphs.

REFERENCES:

Alter, Karen and Jeannette Vargas. 2000. “Explaining Variation in the Use of European Litigation Strategies: European Community Law and British Gender Equality Policy.” 33 COMPARATIVE POLITICAL STUDIES 452-82.

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© Copyright 2005 by the author, Dagmar Soennecken.