Compliance in the Enlarged European Union

Living Rights or Dead Letters?

Gerda Falkner, Oliver Treib

• Publisher: Routledge
• Year: 2016
• Topic: Social Sciences
• eBook ISBN:
  9781351949873
• Subtopic: Social Work
• Index: Social Sciences

This book offers a rigorous empirical and theoretical analysis of an important dimension of European integration - the implementation of EU legislation and its effect in the wake of the accession of ten new member states to the EU in 2004. The authors concentrate on the key field of social policy, which is of vital interest for the viability of the welfare state and the future of labour law standards in Europe. Following on from a previous prize-winning study, Complying with Europe: EU Harmonization and Soft Law in the Member States, this new volume looks at how EU social legislation works in practice, particularly in Central and Eastern European countries. The authors offer in-depth empirical case studies of three of the most significant pieces of EU social legislation: the Working Time Directive, the Equal Treatment Directive and the Employment Equality Directive. Their analysis makes it possible for the authors to make useful generalizations for the policy field as a whole.

Chapter 1

Introduction: The Challenge of Implementation Research in the New Member States

Gerda Falkner, Oliver Treib and Elisabeth Holzleithner

This chapter begins by outlining the theme of the book: the practice of European Union (EU) social legislation in Central and Eastern European countries (CEECs). We highlight the importance of studying policy implementation as a crucial phase of the policy cycle. We outline the empirical and methodological approach we chose to shed light on how accession countries attempt to translate EU social policies into domestic practice. We also give an overview of the state of the art in EU implementation research, and of the EU legislation pertaining to our study. The chapter closes with a brief description of the structure of the book.

The Theme of the Book: How Does EU Social Law Work in Practice in Central and Eastern Europe?

On 1 May 2004, ten new member states from Central and Eastern Europe and the Mediterranean joined the European Union. They had to align their policies and their administrative and legal systems with the requirements of the acquis communautaire (i.e., the approximately 80,000 pages of EU law representing the status quo of European integration) even before joining and although their policy legacies were in some areas far behind the EU standards. Further, their legal and administrative systems were in need of major reforms to allow the proper enforcement and application in practice of the huge body of EU law.

We aim to take stock of this process. If there are shortcomings in transposition, enforcement or practical application, what are the reasons and how could they eventually be mended? The EU directives on working time, employment equality, and the equal treatment of women and men in employment will serve as our practical examples.

Implementation as Crucial but Difficult Phase of the Policy Cycle

The aforementioned questions are of vital importance for the functioning of European integration: there is no use for the EU in adopting intricate rules for a unified market, if they remain dead letter in large parts of the Union.

A recent study revealed that non-respect of jointly adopted rules and policies has already been a significant problem in the 15 ‘old’ member states of the EU (Falkner, Treib, Hartlapp and Leiber 2005, chs 14 and 15). Only 11 per cent out of 90 implementation cases studied represented correct and timely transposition into domestic law, and 69 per cent were delayed for at least two years or more. Based on these empirical data, implementation problems can certainly no longer be characterized as a ‘statistical artefact’ (Börzel 2001).

Already during the period preceding the 2004 enlargement, the European Commission made compliance with EU policies a priority (see official statements such as, for example, the Governance White Book 2001). Indeed, with Malta, Cyprus, and (most importantly, in this respect) eight Central and Eastern European countries now being part of ‘the club’, the issue of compliance with EU law is ever more pressing. The CEE Cs are transition states with a view to not only economics but also to their political and legal systems. Many of them had a long way to go to become full-fledged democratic systems with stable institutions. The early academic literature on the implementation performance of those CEECs that joined in 2004 indicated that transposition was rather dutiful during the pre-accession period. At the same time, scholars expected that ‘the absence of these incentives should significantly slow down or even halt the implementation process’ (Schimmelfennig and Sedelmeier 2005a, 226; see also Schimmelfennig, Engert and Heiko 2005, 29; 2005b, 28; Linden 2002, 371). Prospects appeared to be even worse: pre-accession studies on Europeanization in the CEE Cs highlighted failures during the phases that follow after the transposition of EU directives into domestic law. This suggests a need for post-enlargement studies on the practical effects of EU law.

The accession of Bulgaria and Romania, two countries with even graver problems in the field of court systems and the rule of law, yet again increased the exigency of compliance with EU rules. Despite vast preparatory work in the candidate countries, the European Commission had to express great concerns in its 2006 monitoring reports on Bulgaria and Romania: ‘Bulgaria needs to demonstrate clear evidence of results in the fight against corruption, in terms of investigations and judicial proceedings. It also needs to further reform the judiciary’ (European Commission 2006h, 1). The Commission also pressed for more efficient and systematic implementation of laws fighting fraud and corruption. Romania, too, was said to need to ‘demonstrate further results in the fight against corruption. It also needs to consolidate the implementation of the ongoing justice reform and further enhance the transparency, efficiency and impartiality of the judiciary’ (ibid., 3). Alarming assessments of similar nature may be found in the Commission’s progress reports on Croatia and Macedonia – the two candidate countries that currently appear to be furthest advanced in their rapprochement with the EU (European Commission 2006c, 7–8; 2006f, 7–11). Problems with the domestic fulfilment of EU legislation will thus remain a hot topic in the years to come.

To sum up, we aim to close a gap in existing literature by studying compliance in CEE Cs not only during the pre-membership phase but also following accession. Additionally, we look at the whole process of EU legislation implementation, hence including the difficult aspects of application and enforcement of laws. This is a demanding task (see below on our methods), but it is crucial to go beyond the analysis of available data on transposition rates or infringement proceedings, which prior research has all too often used as – rather poor – indicators for compliance. In the end, we believe, the analysis of different types of implementation problems and the identification of their causes can improve the situation in the new member states (in particular in Slovenia, Hungary, Slovakia and the Czech Republic) and avoid similar problems in forthcoming EU enlargements.

Policy Focus: Labour Law and Equality

For our complex study of practical implementation processes and adaptation results, it is indispensable to select a number of cases for in-depth qualitative analysis. Our specific focus will be the implementation of EU social policy, a policy area whose fate is of essential interest for the viability of the welfare state in Europe (for an overview of the EU’s social dimension, see, for example, Leibfried and Pierson 1995; Shaw 2000; Falkner 2003). Eastern enlargement has revived debates about ‘social dumping’ within the Internal Market. Many of the new member states have low corporate tax rates, low wage levels, low non-wage labour costs due to low levels of welfare-state development, and relatively flexible labour markets with little employment regulation. With their accession to the European Union, other countries, where companies have to cope with higher production costs, are potentially exposed to competitive pressures leading them to lower their tax rates and social standards in order to remain attractive for investors. One of the remedies for this ‘regime competition’ is the creation of common social standards at EU level.¹ Properly implemented, these provisions could counter social dumping tendencies, and they could significantly improve the living and working conditions of many citizens in the accession countries.

It is to be expected that the EU’s social policy directives should actually have a substantial impact in the new member states. A survey on the working conditions in the ten acceding countries plus Bulgaria and Romania, carried out by the European Foundation for the Improvement of Living and Working Conditions between 2000 and 2002, revealed that weekly working hours are on average much longer than in the EU15, with an average working week of 44.4 hours compared to 38.2 hours in the latter (Paoli and Parent-Thirion 2003, 45). Moreover, the share of workers who work very long hours is much higher than in the EU15; 38 per cent of the workers in the 12 acceding and candidate countries regularly work between 45 and 80 hours per week, whereas only 20 per cent of all workers do so in the EU15 (Paoli and Parent-Thirion 2003, 49). In addition, night and shift work are fairly widespread in the new member countries (Paoli and Parent-Thirion 2003, 52–7). This indicates that the implementation of the Working Time Directive, but probably also the other directives to be studied, will indeed make a noticeable difference there.

In addition to the Working Time Directive, a highly contested piece of EU social legislation (the Council of Ministers seemed unable to agree on its redrafting in 2006), we also study EU rules in the fields of equal treatment prohibiting discrimination between men and women, and a set of provisions fighting discrimination against individuals based on religion or belief, disability, age or sexual orientation. This is an important issue for the EU far beyond 2007, the European Year of Equal Opportunities for All. It should be added that there is, so far, hardly any reliable information at all on the fate of EU law in the fields of non-discrimination and labour law in the new member states.

Covering this wide array of sub-fields within EU social policy, we will be in a situation to draw some generalizations from our findings for the policy field as a whole. The conclusions will discuss in how far the results can be generalized across EU policies, at large. This choice of directives also allows us to link up to an existing qualitative study on compliance with EU standards. It should be mentioned that few analyses of this kind exist to date, as opposed to many recent studies of a quantitative character, based on official statistics and databases on transposition of EU directives. In any case, we can build on a study that has been praised as ‘arguably the best available information on compliance’ (Thomson 2007, abstract; von Falkner, Treib, Hartlapp and Leiber 2005) for the EU15. It included six labour law directives, most importantly also the Working Time Directive. What matters here is that choosing again cases from the social realm in its widest sense, and particularly also the working time issue, allows us to compare our new case studies from Central and Eastern Europe to the prior ones from the EU15. This was one of our concerns when choosing the policies and directives, in addition to the considerations of general policy interest and economic importance outlined above.

Our country selection includes Slovenia, Hungary, Slovakia and the Czech Republic. While it was not feasible to include all new EU members that joined the EU in 2004, these cases comprise one of the socio-economically least developed member states among the new entrants (Slovakia) as well as one that is comparatively advanced in economic terms (Slovenia). This assortment of empirical studies allows us to test whether the degree of economic development and, by implication, the expected adaptation costs for these countries, have an impact on the quality of implementation, as parts of the recent literature on the implementation of EU law suggest. Since qualitative research and, in particular, our approach aimed at evaluating implementation in its full sense demands a lot of travelling for interviews, contacts with practitioners and field research in the widest sense, it should be mentioned here that we also had to take into account the practicalities and budgetary capacities of our project.

This and considerations of the timing of membership explain why we could not include countries such as Bulgaria and Romania in our study. Part of our team is considering a follow-up project in these regions for the future.

Methods and Transdisciplinary Approach

Studying the domestic implementation of EU policies in an encompassing manner requires the accumulation of in-depth knowledge: firstly, about the conformity of national law with EU demands; secondly, about the effectiveness of domestic systems of law enforcement; and thirdly, about the quality of application of the law in practice. Therefore, complex and intricate empirical case studies were indispensable.

Our analysis proceeded in the following steps (for each country and directive studied, in turn):

1) Semi-structured interviews with the Ministry officials responsible, with experts from trade unions, employer’s organizations and NGOs, and, at times, also with politicians in the member state on the reform requirements created by the directives and the state of implementation (including collection of domestic transposition laws and statistics).²

2) Analysis of the domestic transposition law(s), statistics, and secondary literature (where available).

3) Focus group sessions involving representatives from a wide range of civil society representatives with in-depth knowledge about the cases studied. Such groups were held in each of the four countries. In order to foster conditions conducive to an atmosphere of trust and open discussion of potentially sensitive information, members were selected according to similarity of interests. In each country studied, three different focus groups engaged in a discussion, divided mainly according to the separation of interests between employers and employees but also other potential conflict lines where useful. Each focus group brought together between four and twelve local experts plus members of our research team for three to four hours. The themes discussed in the focus group sessions included the question of whether the participants considered the transposition laws satisfactory in light of the EU directive’s goals and of their own ambitions and, most importantly, whether there were problems in the application and enforcement of the transposition law in practice, and why.

Focus group discussions allow for the gathering of high quality information that is indeed very reliable evidence compared to other sources. It is not just individual knowledge and related opinions that become evident in these facilitated sessions. Interaction within the group based on the input statements and questions also reveals shared experiences and potentially conflicting views, as much as joint understandings of everyday life and relevant background information that would be almost impossible to disclose in other ways (see the path-breaking article by Merton and Kendall 1946; see also Powell and Single 1996; Morgan 1997). We chose this method to gather information particularly about the state of affairs with regard to application and enforcement. At the same time, the group discussions also allowed the participants to learn more about the legal rights and opportunities offered to them and their clientele by EU law so that they could use this information to improve their situation. Hence, the flow of information in focus groups is two-way, and both the participants and the researchers can benefit.

4) Strategy workshop: a crucial event during our project was the final transnational workshop aimed at developing concepts for improving social rights in practice. Interest groups from the countries studied and Austria, representing those negatively affected by non-implementation (unions, works councils, feminist groups, etc.), and researchers discussed remedies for implementation gaps. The best target points for relevant lobbying were shared between countries; and strategies involving the European Commission and other – multi-lateral – actors, including NGOs, were discussed.

This workshop, which involved between four and five participants from each of the four countries, lasted for one day and was divided into three specialized working groups (on our three main issue areas) for a couple of hours.

The transnational character of this workshop allowed the participants to share insights and information with one another directly, across all countries studied in this project, and to jointly formulate strategies fighting potential discrimination and non-respect of social standards.

It should be mentioned here that this book targets a specific interface between disciplines – political science, law – and between theoretically informed research and practitioner knowledge. Our research questions underline that a large number of pressing social problems cannot be tackled by individual academic disciplines separately. Rather, a joining of force...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figure and Tables
• Preface
• 1 Introduction: The Challenge of Implementation Research in the New Member States
• 2 Czech Republic
• 3 Hungary
• 4 Slovakia
• 5 Slovenia
• 6 Conclusions: The State of EU Social Standards in Central and Eastern European Practice
• References
• Index