When Practice Goes beyond Legislators' Expectations: Analysis of Practical Implementation Exceeding Legal Compliance with EU Directives

Abstract

Whereas most research focuses on non‐compliant implementation, we lack understanding of implementers' incentives and abilities to outperform national legislation. This study investigates a largely under‐researched question: to what extent practical implementation exceeds levels of legislative compliance with EU requirements? To explain this phenomenon, we focus on the responsiveness of implementing actors to external (participation in transnational networks) and domestic pressures (national societal attitudes) for compliance with EU requirements and the availability of additional expertise at the implementation stage (bottom‐up). Moreover, implementing actors are unlikely to respond in the same way to different types of national legislative problems (top‐down). The findings suggest that implementers often outperform the transposition of EU laws. Practical outperformance depends on the level of societal support for external policies and is a response to incomplete or ambiguous domestic formal rules.

A decade of EU law in the courts of Scotland and Ireland: national legal systems compared

“…135 They grant national policy-makers the freedom to select the most appropriate method of attaining these goals within the domestic system. 136 This decentralised method of legislative implementation with Member States, as Hubner has argued, leaves more room for manoeuvre in implementation and can lead to more complex regulatory questions arising before national courts as to the scope and application of Directives, and additionally increases the likelihood of references being made to the CJEU as to the interpretation and validity of such acts. 137 Therefore, EU legislative instruments such as Regulations, as the data appears to indicate, are less likely to be raised in legal proceedings as they leave considerably less room for differences of interpretation given their direct applicability to objectively determined situations.…”

‘I did it my way’: customisation and practical compliance with EU policies

“…Therefore, the analysis accounts for the number of sources providing information about practical implementation and the length of the reports. Despite these caveats, previous research has shown that external assessment reports are highly comparable, while offering a novel tool to analyse member states' compliance in a quantitative framework (Zhelyazkova et al, 2016(Zhelyazkova et al, , 2018.…”

“…Thus, 'a directive can be perfectly transposed into national legislation, but this does not necessarily lead to practical implementation as well' (Versluis, 2007, p. 51). Empirical studies support the conjecture that legal and practical compliance are 'decoupled' (Falkner et al, 2005;Versluis, 2007;Zhelyazkova et al, 2016Zhelyazkova et al, , 2018.…”

“…By partially transposing the EU directives, policy-makers either consciously or unwittingly delegate implementing authorities to national bureaucrats to fill in the policy gaps at the implementation stage. Recent research shows that implementers are more likely to comply with the EU directives in practice when national legislation misses important EU provisions (Zhelyazkova et al, 2018). Some omissions can even broaden the scope of national measures beyond the target groups defined in EU directives.…”

How Do Supranational Regulators Keep Companies in Line? An Analysis of the Enforcement Styles of EU Agencies

“…Our study presents a first assessment of how EU agencies have de facto taken up their role as direct enforcers. Whereas EU agencies' practices depend on the formal competences conferred on them by EU legislators, practical implementation is often decoupled from formal structures (Zhelyazkova et al ., 2018). Furthermore, we apply the Eurolegalism thesis in relation to supranational enforcement practices.…”