Differentiation through flexibility in implementation: Strategic and substantive uses of discretion in EU directives

Abstract

This article analyses the extent to which European Union (EU) directives allow for variation in domestic implementation. Such flexibility in implementation may be used to deal with heterogeneity among member states. Based on an original dataset of 164 directives adopted between 2006 and 2015, we find that the use of flexibility is associated more with efforts to accommodate differences between national policies (substantive use of discretion) than with attempts to facilitate the decision-making process in and between EU legislative institutions (strategic use of discretion). Although flexibility may be used to address some of the same concerns that drive differentiated integration (DI), the situations in which each is most likely to be used are distinct because they approach the divergences between member states differently.

Differentiated integration in the European Union: Institutional effects, public opinion, and alternative flexibility arrangements

“…Two important forms of de facto differentiation that we will also explore in this special issue are noncompliance (Andersen and Sitter, 2006;Sczepanski and Börzel, 2023) and informal cooperation between groups of member states, including the ad hoc participation in integrated policies of countries that have formally opted out (Adler-Nissen, 2009;Genschel et al, 2023). Moreover, flexibility in implementation (Zbíral et al, 2023) and "experimentalist governance" (Zeitlin and Rangoni, 2023) refer to forms of differentiation in policy implementation and policy development over time, which do without the legal exemption or exclusion of member states from EU policies.…”

“…In their case studies on EU electricity policy and banking union, Zeitlin and Rangoni (2023) argue that regulation under conditions of high international interdependence and uncertainty is well served by "diachronic experimentalism", a combination of flexibility in implementation and deliberative review processes leading to regular rule revisions. Based on a novel dataset of directives in all areas of EU policy making, Zbíral et al (2023) show that flexibility in implementation is applied primarily for legislation requiring substantial domestic policy change and in the domain of core state powers. It is also clear, however, that these two flexibility arrangements are not strict alternatives to DI-as evidenced by the fact that the banking union combines DI and experimentalist governance and that the use of DI and flexibility in the implementation of directives is positively correlated (Princen et al, 2022).…”

“…In sum, several contributions to the special issue help to put DI integration in a larger context of European governance (Genschel et al, 2023;Sczepanski and Börzel, 2023;Zbíral et al, 2023;Zeitlin and Rangoni, 2023). For one, they point out that noncompliance, experimentalist governance, flexibility in implementation, and partial reintegration pursue the same quest for efficient European governance under heterogeneity as DI.…”

Two sides of the same coin? The effect of differentiation on noncompliance with European Union law

“…In line with Schimmelfennig et al (2023), we speak of differentiation or opt-outs when a legal act or parts of it do not apply to one or several member states (see also Winzen, 2016). In contrast to general flexibility mechanisms like flexible implementation (Zbiral et al, 2023), differentiation exempts individual countries from implementing (parts of) a legal act (temporarily) (Winzen, 2016: 102). Therefore, differentiation and flexible implementation instruments are used in very different situations (Zbiral et al, 2023).…”

Differentiation in the European Union and beyond

“…The EU is a response to the following question: “How can one realize the benefits of scale while accommodating diverse communities?” The answer is to have no central language and no state religion; tax little and redistribute less; give states flexibility in implementing most laws; decide by unanimity or supermajority rather than simple majority; use soft law and benchmarking; diffuse authority vertically and horizontally; bring national governments directly into central decision making; permit enhanced cooperation by subsets of member states; allow transitional arrangements for less advanced states; and, as a last resort, allow recalcitrant member states to opt-out (Marks, 2012). Most legislation in the EU is by directive which “leaves room for member states to make their own choices, for instance, by leaving it to member states to decide on the scope of application of a specific provision or by allowing for the adoption of more stringent standards” (Benz, 2010: 220; Zbíral et al, 2023).…”