Why Member States (Fail to) Implement EC Directives - Institut für ...

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Why Member States (Fail to) Implement EC Directives - Institut für ...

Dirk Peters

Making European Law Work:

Why Member States (Fail to) Implement EC Directives 1

1 Introduction

- Draft -

The European Community (EC) considers itself a community of law. European

integration is perceived primarily as "integration through law" (Cappelletti et al. 1986).

This attempt to realize European integration by way of creating common legal norms

has resulted in an often lamented proliferation of legal acts issued by the EC 2 . However,

issuing legal acts alone does not advance European integration. These regulations and

directives need to be put into practice by member states if they are to have any effect at

all. National implementation of EC law, therefore, is a crucial aspect of European

integration. Yet, it also is an aspect that has attracted only little attention by European

policy makers and scholars of European integration alike. Especially the question

whether there are patterns of implementation across functional domains (is there

systematic variation in implementation rates between member states?) is a seriously

underresearched issue. Peter M. Haas has highlighted this desideratum in an article for

the Journal of European Public Policy some time ago and suggested ways of filling this

gap (Haas 1998). In particular, he proposed to use general theories of International

Relations and Comparative Politics stressing state agency to develop explanations for

the implementation behavior of EU member states.

In this article I pick up on these suggestions and develop two models to explain

variation in implementation rates of EU member states. In two respects, however, I will

depart from the path charted by Haas. First, my approach is more narrow than the

research program outlined by Haas, because I will confine myself to the exploration of

rationalist arguments about implementation behavior. I exclude constructivist

approaches mainly for practical reasons (i.e. limitations of time and space) and not to

suggest that they do not have to offer some valuable insights into the issue at hand. This

more focused approach enables me to elaborate the explanatory models in more detail.

Thus, second, I will move beyond outlining avenues for future research and instead

1

I am grateful for numerous helpful comments on earlier drafts of this article by Peter Mayer, Volker

Rittberger and Wolfgang Wagner, as well as by Rainer Baumann, Tanja Börzel, Andreas Hasenclever,

Volkhart Heinrich, Klemens Käppeler, Annette Lutz, Manuela Reichle, Regina Stegmüller and Klaus

Stodick.

2

The European Community (EC) is the first pillar of the European Union (EU). Because all binding

legal acts are issued by organs of the EC I will employ the terms "EC law," "EC directives" etc.

throughout, but speak of the "EU" when I refer to the organization as a whole.


2

elaborate the models to the point where I am able to derive hypotheses which can be

tested empirically.

Hence, in what follows, I will develop and preliminarily test two rationalist explanations

for the national variation in the implementation rates of EC diretives. The first model,

which will be outlined in section 4, is based on the assumptions of the rational

institutionalist school of thought in International Relations theory. Two hypotheses are

derived from this model which link a state’s rational self-interest to its implementation

behavior. The second model combines elements of liberal International Relations theory

and of Comparative Politics. It opens up the "black box" of the state – national decisions

about implementation or non-implementation of EC law are viewed as the outcome of

complex decision-making processes in which a variety of societal actors are involved.

From this model two hypotheses will be derived which link national decision-making

procedures to a state's implementation rate (section 5). Both models are tentatively

tested in section 6. Due to limitations of available reliable data, I will restrict the test to

the legal implementation of EC directives, i.e. to the transposition of EC directives into

national law. It will turn out that both a state's capacity to comply with EC law and the

role of domestic veto players are crucial for explaining differences in implementation

behavior. Section 7 summarizes the findings and outlines their policy implications.

Before the models are developed, however, I will first briefly describe how the

implementation of EC law works at all and also briefly review the literature on the

implementation of EC directives in sections 2 and 3.

2 The Implementation of EC Directives

While EC policies are decided on in "Brussels", i.e. at European level, they are put into

practice only at the national level. Consider an attempt to improve air quality in EU

member states. The Commission may draft a clean-air directive providing for cuts in the

emission of certain pollutants. After some intra-EC bargaining, this directive may be

adopted by EC organs (the Council and the European Parliament). However, to make

this policy work the EC depends crucially on national actors: First, the member states

need to transpose the directive into national law; i.e. the national parliament or some

other national institution has to pass a law that contains essentially the rules laid down

in the directive (transposition or legal implementation). 3 Second, this national law has to

be applied by the national administration (administrative implementation). Third,

individuals need to comply with the law, i.e. producers of pollutants have to actually cut

3

In the EC context, legal implementation is unique to directives. All other binding legal acts issued by

the EC (regulations and decisions) take direct effect and need not be transposed into national law (see

Article 248 [189] TEC).


3

their emissions (compliance). Only then there is, finally, a chance for an actual reduction

in the overall emission of pollutants and thus for clean air (effectiveness). 4

While the responsibility for implementation lies primarily at the national level, the

failure to implement EC law can have important repercussions on the European level. It

can "cause discontinuities in the Community’s legal system, create asymmetries among

states, and undermine the effects of Community policies." (Mendrinou 1996: 19 n. 9). In

order to avoid such detrimental repercussions, the Commission watches over legal and

administrative implementation and attempts to ensure that member states fulfill their

obligations. Yet it is difficult for the Commission to monitor implementation efforts, let

alone to actually influence implementation behavior. The only phase which can reliably

be monitored is legal implementation, because member states have a duty to report on

the measures they have taken to transpose a directive into national law (Nugent 1999:

134). Failures at administrative implementation are much harder to detect because there

are no national reports on administrative implementation and the Commission – due to

its limited resources – is by no means able to effectively ensure the correct

administrative application of more than one thousand directives in 15 member states

(From/Stava 1993: 62-64; Nugent 1999: 137). Moreover, once it has detected

implementation failure, the Commission can hardly make the respective member state

change its behavior because the Commission's ability to impose sanctions is quite

limited. Only since the Treaty on the European Union (TEU) took effect in 1993, the

European Court of Justice (ECJ) has the possibility to impose fines on recalcitrant

member states. 5

3 Research on Non-Implementation

Despite the importance implementation has for European integration, there has been

little effort to systematically identify the causes of non-implementation in EU member

states. To be sure, there is a considerable number of case studies on the implementation

of individual EC directives in one or more member states (e.g. Brenner 1996, Edwards,

V. 1996, Nettesheim 1999, Schiøler Sørensen 1996). However, most of these studies are

concerned with the legal aspects of implementation only. They describe in great detail

the transposition of a single directive in one or more member states pointing out factors

that made implementation in this special case easy or difficult. They do not claim to

explain the implementation decision, that is to uncover the causes of the implementation

4

This distinction of the several phases of implementation is borrowed from Andresen et al. (1995: 27).

5

For details of the infringement procedure which is laid down in Article 226 [169] TEC, see Nugent

(1999: 134-138) and Oppermann (1991: 630-635). For the "new" possibility to impose fines on member

states, see Article 228 [171] para. 2 TEC.


4

or non-implementation of EC directives in general. 6 A second group of studies attempts

to find such causes by comparing the implementation of several EC directives or the

process of implementation in general in EU member states. These studies, however,

tend to be either rather eclectic, summing up potential causes of implementation failure

and paying less attention to systematically linking causes and effects (Mosley 1996;

Siedentopf/Ziller 1988; Schwarze et al. 1990); or to focus their attention on a single

cause, e.g. involvement of national parliaments in the formulation of directives (Martin

1995). Only Peter Haas (1998) has made an attempt to systematically formulate coherent

theoretical models of implementation behavior, especially compliance with EC

directives. However, he does not formulate testable hypotheses, but only discusses

"possible elements for a research program on understanding patterns of compliance with

EU legislation, focusing on manipulable variables which may influence a state’s

decision to comply" (Haas 1998: 18).

Hence, non-implementation of EC law has not yet been systematically explained. By

developing and (preliminarily) testing two models of implementation I attempt to

contribute to such an explanation.

4 Rational Institutionalism

4.1 Basic Assumptions

The first of the two explanatory models presented here is based on the rational

institutionalist school of thought in International Relations Theory, which was

influenced most importantly by the work of Robert Keohane (1984, 1989a,b). 7 Rational

institutionalists regard states as unitary, rational actors which act according to

calculations of costs and benefits. State behavior reflects primarily the conditions set by

the international system, while the internal characteristics of a state are of less

importance (Hasenclever et al. 1997: 24-26; Keohane 1984: 25f., 1989a: 1f., 7f.;

Slaughter Burley 1993: 218). Moreover, rational institutionalism posits that states (or at

least "advanced market-economy countries" (Keohane 1984: 6) which exist in zones of

"complex interdependence" and thus do not have to fear attack by their neighbors

(Keohane/Nye 2001: 23f.)) are rational egoists: They strive for absolute gains and do not

6

The only exception from this pattern which has come to my attention is Duina (1997), who attempts to

show the effect of existing domestic institutions on the probability that a directive is implemented by

analyzing the implementation of the equal pay directive in three countries.

7

Rational institutionalism also goes by the name of "neoliberal institutionalism" (Keohane 1989a). To

avoid confusion with the liberal school of thought, introduced in the next section, which rests on a slightly

different notion of "liberalism", I employ the term "rational institutionalism", which reflects the basic

assumptions of this school of thought more clearly.


5

care about the gains of other states (Hasenclever et al. 1997: 29; Keohane 1984: 27;

Krasner 1982: 195).

That states care only about their own gains and not about those of others facilitates

cooperation in situations in which states can realize joint gains. But this does not imply

that states will cooperate in every situation in which joint gains would be attainable.

Rather there are "problematic social situations" (Raub/Voss 1986: 86-88) in which

cooperation is hampered by uncertainty about the other states’ behavior. Every state

fears that the others could choose to act in a way that would – in combination with its

own behavior – prevent it from realizing any gains at all (Keohane 1989b: 64).

Therefore, a state will join the cooperation only when it can be certain (at least to some

degree) about the other states' behavior.

4.2 Cooperation in Problematic Social Situations

The most important problematic social situations in international politics are

coordination games ("dilemmas of common aversions") and prisoners' dilemma games

("dilemmas of common interests") (Stein 1982: 304-311; Snidal 1985a: 926-937). 8 A

typical example of a coordination game in the EC context is the standardization of

industrial goods, for instance of certain industrial components. All states whose

industries import and export those components are interested in setting some common

standard for their size or quality in order to facilitate their exchange. Nonetheless, it

might be difficult for them to agree on one such common standard, because every state

will try to get that standard accepted as the Community standard which its own domestic

industry already applies. If it succeeds its industry will avoid the cost of adapting to a

new standard. 9 Yet once the states have agreed on a common standard every state that

does not implement the agreement will only harm itself. Its domestic industry would be

able neither to export the components it produces nor to import components it needs.

Therefore, agreement in coordination games, once established, is self-enforcing. Every

8

Some authors (e.g. Zürn 1992; Martin 1993) regard two more situations as relevant for international

cooperation: assurance games and suasion games. Assurance games, however, are problematic social

situations only under conditions that arguably do not hold for the EU context (at least one actor is

uncertain about the others' preference ordering or at least one actor does not expect the others to act

rationally) (Hasenclever et al. 1997: 50). In suasion games the uncoordinated outcome is so robust that

some authors do not consider them problematic social situations at all (Stein 1982: 304; Taylor 1987: 40).

The probability that common rules are agreed upon in such instances is extremely low (Zürn 1992: 212).

Therefore it is safe to assume that only a very small fraction of EC directives, if any, regard suasion

games. I will therefore exclude assurance and suasion games from discussion.

9

To be sure, this is only a special case of a coordination game, namely a coordination game 'with

distributional conflict' (Zürn 1992: 191). There are also coordination games without distributional

conflicts (for example the standardization of a new component which is not yet produced in any of the

states involved and whose standardization therefore will cause no costs of adaptation for any of them). In

those situations the only difficulty for the participating states is to pick one common standard among

several possible ones.


6

rational state will implement it. "Thus there is no problem here of policing and

compliance." (Stein 1982: 314; see also Hasenclever et al. 1997: 48; Zangl 1994: 292;

Zürn 1992: 180).

This does not hold, however, for prisoner’s dilemma (PD) situations. Often international

environmental problems can be modeled as PD games. Take, for instance, a clean-air

directive designed to cut the emission of certain air pollutants. In this case, even after

agreement on the directive has been reached, there remain incentives for every state to

defect from cooperation, i.e. not to implement the directive. A state that does not force

its domestic industry to cut its emissions while the other countries do (i.e. a "free rider"),

realizes several advantages over the other states. First of all, the air in the concerning

state will be cleaner than before, because less emissions from neighboring countries will

cross its borders. At the same time, the state (or its domestic industry) does not have to

adjust its behavior. Thus it can avoid costs while realizing benefits. Moreover, it

achieves an advantage over the other states because it has less demanding environmental

laws and therefore may gain in attractiveness as a location for industry. All in all, this

makes for strong incentives not to implement the directive.

International institutions, that is "persistent and connected sets of rules (formal and

informal) that prescribe behavioral roles, constrain activity, and shape expectations,"

(Keohane 1989a: 3f.) may in this case be helpful to ensure implementation, because they

can alter the incentive structure for states in PD situations to some extent. For instance,

they may make a state's defection visible to the others, thus causing at least reputational

losses for the defecting state or maybe even the collapse of the cooperation altogether,

leaving the state concerned even worse off than before. However, while international

institutions might be able to reduce the incentives for defection, they cannot eliminate

them altogether, because an international institution eliminating all incentives for

defection would be quite costly to create. Rather, rational actors will attempt to design

an institution in a way that optimizes the ratio of costs and benefits. It might be perfectly

rational not to eliminate all possible incentives for all possible defectors, but to tolerate

a certain degree of non-cooperative behavior (Chayes/Chayes 1993: 197-204; Young

1979: 113-115). In the case of the EC, rules indeed do leave considerable room for

incentives to defect. While defection might be noticed by the Commission and maybe

even reprehended by the ECJ, the defecting state does not have to fear material

sanctions (at least there were no such sanctions until the TEU came into force). This

makes for considerable incentives not to implement directives regulating cooperation in

a PD situation.


7

4.3 Hypotheses about the Implementation of EC Directives

We have seen that rational institutionalism suggests that states have incentives not to

implement directives only in PD situations. As we shall see shortly, the incentives for

non-implementation are not the same across all EU member states. There are countries

with strong incentives for non-implementation and countries for whom these incentives

are weaker. Those countries for which the incentives are stronger should have lower

implementation rates than the other states. Thus, by identifying differences in the

incentives to implement PD directives we will be able to derive hypotheses about crossnational

differences in implementation rates.

Implementing as well as not implementing EC directives causes costs. These costs

determine how strong the incentives for a member state are to implement or not to

implement a directive. We can distinguish at least four types of costs pertaining to the

(non-)implementation of EC directives. Consider once again a clean-air directive as an

example: First, a state that implements the directive has to bear the cost of ensuring that

the production of the concerning pollutants is cut (costs of implementation). Second, by

implementing the directive it abandons the opportunity to spend the resources needed

for implementation in a different way, e.g. for national policy programs (opportunity

costs of implementation). A state that does not implement the directive, however, runs

the risk of being punished for its deviant behavior (costs of non-implementation).

Moreover, it risks that the other states, recognizing that they are exploited by a free

rider, will also stop cooperating. The state would then have to do without the gains it

would have realized when implementing the directive, for example clean air

(opportunity costs of non-implementation).

Do these different kinds of costs create different implementation incentives for different

states, thus explaining differences in implementation rates?

(1) Costs of Non-Implementation

Until 1992 there were no material sanctions linked to the non-implementation of EC

directives. However, non-implementation caused immaterial costs, especially

reputational losses. At least the failure to transpose a directive into national law was

almost certain to be detected and made public by the Commission. Therefore, a state

could hardly afford generally not to implement EC directives, lest it wanted to earn a

reputation as "non-implementer" and thereby jeopardize the willingness of the other

states to cooperate in the future (see Keohane 1984: 105f.).

The TEU, which came into force in 1993, gives the ECJ the possibility to impose fines

on member states which attempt to evade implementation of EC legislation. Since a


8

state’s capabilities enter into the calculation of the fine 10 , the risk of being sentenced by

the ECJ deters both small and large member states to the same degree. Therefore, no

hypothesis about differences in the implementation behavior of member states can be

derived from the costs of non-implementation. These costs create roughly the same

incentives for all member states. Since the costs were raised considerably after 1992,

one would ceteris paribus expect the implementation rates of all states to go up after

1992.

(2) Costs of Implementation

The costs of implementation do vary from state to state. They depend primarily on a

state’s capacity to implement. It seems fair to assume that affluent states (states with a

high per capita income) in general possess a higher capacity to implement directives

than less affluent states. Less affluent countries often lack an efficient public

administration and tend to have relatively low standards of regulation (Chayes/Chayes

1993: 194; Jacobsen/Weiss 1995: 127; Mosley 1996: 28). While affluent countries may

be able to rely on existing bureaucratic resources and build on existing regulations,

poorer countries need to "catch up" first, which means they have to bear higher costs to

implement the same rules. Higher costs mean stronger incentives to avoid these costs by

not implementing directives. Thus, we arrive at the first hypothesis about differences in

the implementation rates of EC member states.

Hypothesis 1:

The less affluent a country is, the lower is its implementation rate with respect to PD

directives. 11

(3) Opportunity Costs of Implementation

Implementation causes opportunity costs because the resources invested in the

implementation of a directive cannot be used to other ends, e.g. for domestic policy

programs. Non-implementation of PD directives, in contrast, enables a state to both

realize gains from implementation by others (e.g. its air will be less polluted) and to

spend its money on domestic policy programs, thus further enhancing its national

welfare.

10

This is ensured by the "factor n" by which the fine is multiplied. This factor takes into account a

country’s GDP and its number of votes in the Council (which is a measure for the size of its population)

(Official Journal of the European Communities, C 63 (28 Feb 1997)). This "factor n" is 1 for Luxembourg

and 26.4 for Germany; that is for the same infringement Germany would have to pay a fine 26.4 times

higher than that of Luxembourg.

11

The ceteris-paribus clause applies to all hypotheses.


9

This possibility to gain twice by non-implementation is more attractive for poorer

countries than for affluent ones; because the gain in welfare that can be realized through

the non-implementation of directives is more attractive for poor than for affluent

countries. This is due to the law of diminishing marginal utility (see Marshall 1961: 93):

The more an actor already possesses of a good, the less her utility will increase when she

gains an additional unit of the good (i.e. the seventh piece of cake that a person eats will

increase her utility less than the first one she had that day). In terms of utility, therefore,

an affluent state will gain less from not implementing an EC directive than a poor one.

Thus, looking at the opportunity costs of implementation we can again state the

expectation that poorer countries will have lower implementation rates with regard to

PD directives than more affluent countries (Hypothesis 1).

(4) Opportunity Costs of Non-Implementation

It will be useful for a state to avoid the cost and opportunity costs of implementing a PD

directive only if the other states continue to cooperate despite its own defection. If the

other states retreated to defective behavior themselves the original defector would be

even worse off than before: Its air would be as polluted as before and in addition the

state would have gained a reputation as "non-implementer." This would be even worse

than if the state had implemented the directive and taken on the costs and opportunity

costs of implementation. 12

The risk that a state’s defection leads to the collapse of cooperation and thus to high

opportunity costs varies from state to state. Some states can anticipate that their own

defection, if detected, would lead the other states to retreat to defective behavior, too.

For other states it is fair to assume that their own defection – albeit it will not be

welcomed by the others – will not result in the collapse of cooperation.

This is due to the fact that in a multi-person PD situation not all actors have to cooperate

for the cooperation to be profitable for everyone. Rather "there is some number, k,

greater than 1, such that if individuals numbering k or more choose their unpreferred

alternative [i.e. cooperation, D.P.] and the rest do not, those who do are better off than if

they had all chosen their preferred alternatives [i.e. defection, D.P.], but if they number

less than k this is not true." (Schelling 1978: 218) Thus, in a multi-person PD situation

cooperative behavior of k actors (the cooperation of a "k-group") is enough to ensure a

gain in utility for all actors. Even if there are free riders it is rational for the members of

the k-group to continue their cooperation. The k-group, therefore, is "the smallest

disciplined group that, though resentful of free riders, can be profitable for those who

join (though more profitable for those who stay out)." (Schelling 1978: 218)

12

Otherwise it would have been irrational to agree to the directive in the first place.


10

Snidal (1985b) has demonstrated that this game-theoretic definition can be applied to

international politics. He also showed that the composition of the k-group depends on

the distribution of capabilities among the states concerned. The basic insight is that there

are states that can make substantial contributions to successful cooperation and states

that can contribute only little to the overall success. In an extreme case the k-"group"

may be comprised by a single state. Proponents of hegemonic stability theory, for

instance, argue that in the 1950s and 1960s U.S. capabilities in the world financial

system were so superior compared to those of other states that it was rational for the

U.S. to supply world trade with certain public goods (capital flow or markets for

manufactured goods, for instance) regardless of whether the other states cooperated or

not (Kindleberger 1988: 189). Although by free riding other states were able to realize

higher gains than the U.S., the utility for the U.S. was still higher than in the case of

U.S. protectionism.

If there is no hegemon in the system, the same effect can be produced by the cooperation

of a small group of big states. 13 Snidal (1985b: 604-612) argues that after the decline of

U.S. hegemony in the 1970s, Germany and Japan joined the k-group. By cooperating to

supply the world market with certain public goods, these three large states were able to

produce such large gains that their cooperation was rewarding for them even if all other

states had not cooperated but acted as free riders.

Incentives to cooperate are distributed asymmetrically between members and nonmembers

of the k-group. Non-members can retreat to defective behavior with relatively

low risk. Even when they drop out it remains rational for the members of the k-group to

continue cooperation. By not cooperating, non-members of the k-group can realize their

most preferred outcome in PD situations: They defect while the others cooperate.

Therefore, they have high incentives to defect. At the same time, members of the k-

group cannot afford to defect from cooperation. If they did so the cost of cooperation

would rise for the remaining members of the k-group and, by definition, these costs

would exceed the benefits from cooperation for these states. Being rational actors, they

too would stop cooperating and cooperation would collapse. Hence, the opportunity

costs of defection for every single member of the k-group are extremely high.

Which states are members of the k-group with respect to PD directives in the EC? The

exact composition of the k-group will depend on the problem a directive deals with.

13

In theory, this effect can be produced by the cooperation of a large number of small states, too.

However, the smaller the group of states that need to cooperate the more likely the k-group will actually

form. Hence, the smallest possible k-group is the k-group most likely to form (see Olson 1965). This is the

group composed of those states which by themselves can make the largest contribution to cooperation.


11

With respect to the clean-air directive cited above those states that are the biggest

polluters in absolute terms would have to be considered members of the k-group. In the

context of this article it appears justified to assume that primarily those states with large

economic capabilities will be members of the k-group. In general, they will make a

particularly important contribution to cooperation in PD situations because all EC

directives concern the economic realm. Countries which are economically less powerful

will make less important contributions and therefore tend not to be members of the k-

group. The stronger a state is economically, the more likely it will be a member of the k-

group with respect to the implementation of PD directives; and the higher will be its

incentives to implement those directives.

Hypothesis 2: The larger a state’s economic capabilities are, the higher is its

implementation rate with respect to PD directives. 14

Note that what has been said about the opportunity costs of non-implementation implies

that only states which are not members of the k-group can have sufficient incentives not

to implement a PD directive. Non-implementation of a PD directive can increase a

state’s utility only if the state succeeds in free riding, that is if the other states implement

the directive nonetheless. The derivation of hypothesis 2 implied that countries with

large economic capabilities cannot reasonably expect to be successful free riders,

because if free riding of a member of the k-group is detected, cooperation will break

down. Thus, members of the k-group never can have sufficient incentives not to

implement PD directives, even if the absolute costs of implementation might be rather

high. 15 Hence, the differences in implementation incentives that form the basis of

hypothesis 1 are relevant only for those states which are not members of the k-group.

Consequently, we can formulate a hierarchy of the independent variables in the

institutionalist model: Non-implementation is attractive at all only for those states with

relatively small economic capabilities (hypothesis 2). Among these small states the

14

Although hypotheses 1 and 2 seem quite similar they must, nonetheless, be distinguished. The first one

rests on the distinction between poor and affluent countries, the second one on the distinction between

countries with large and those with small economic capabilities. These distinctions are not identical. There

are, for instance small affluent countries on the one hand and small poor countries on the other,

Luxembourg being an example for the first, Portugal for the second category. These states will face

different incentives according to hypothesis 1: While the costs of implementation and thus incentives for

defection will tend to be high for poor Portugal, they will be considerably lower for the significantly more

affluent state of Luxembourg. However, both small countries are unlikely to be members of the k-group

and therefore both countries also have strong incentives not to implement directives according to

hypotheses 2. Only both hypotheses together capture the rational institutionalist model of implementation.

15

The costs of implementation will, by definition, not exceed the gains to be reaped from cooperation.

Otherwise it would not have been rational to agree to the directive in the first place.


12

incentives to defect are most pronounced for non-affluent states (hypothesis 1). We will

have to keep this hierarchy in mind when testing the model in section 6.

5 Liberalism

The institutionalist model introduced in section 4 treats states as unitary, rational actors

which consciously decide in favor of or against the implementation of a directive. To

treat the state as a unitary actor and as a "black box" whose internal structure can be

abstracted from has been a dominant approach in International Relations for decades

(Moravcsik 1997: 514). Yet for several years scholars of International Relations have

criticized this approach and demanded that a state’s internal characteristics be taken into

account when its behavior in the international system or outcomes at the international

level are to be accounted for (e.g. Haggard 1991; Milner 1992; Moravcsik 1993: 11-14).

Recently, this criticism has become common sense: "Lately no word – apart from

'rethinking' – seems to appear more often in international relations titles than

'domestic.'" (Jacobsen 1996: 93).

The second model of implementation to be presented here takes this criticism into

account and opens up the "black box" of the state. This liberal model regards

implementation not as the result of the cost-benefit calculation of rational states but as

the outcome of a more or less complex decision-making process in which a number of

societal actors participate with their individual preferences.

In order to account for the overall implementation behavior of a state by reference to its

internal decision-making procedures we need to single out those characteristics of the

decision-making process which influence the implementation decision across all

directives. Therefore, in the remainder of this section I will develop a simple model of

the decision-making process from which I will then derive two hypotheses about the

implementation rates of EC member states.

5.1 Veto Players and Decision-Making

The basis of my model is provided by the veto-player approach which George Tsebelis

(1995a, 1995b) developed to make domestic decision-making processes comparable

across democratic countries and which has been applied successfully to different issues

in comparative politics (e.g. Hallerberg/Basinger 1998; Radaelli 1997; Tsebelis 1999). 16

Since the model will later be tested with regard to legal implementation I will focus on

16

The approach has also been utilized in the International Relations literature, for instance by Helen

Milner (1997: 14, 106f.).


13

legislative decision-making, but the model and the hypotheses will be applicable to

other phases of the implementation process as well.

Let us start out from a quite simple linear model of the decision-making process. The

process basically consists of three phases: In phase one, a delegation participates for the

member state in the negotiations about a directive on the European level. In phase two,

after a directive was agreed upon, the government of the member state decides whether

to introduce a bill into the domestic legislative process in order to transpose the EC

directive into national law. In phase three, the actual legislative decision-making takes

place, i.e. several actors have to consent to the bill. All actors whose consent is

necessary (in any phase) in order for the directive to be implemented will be called veto

players: "A veto player is an individual or collective actor whose agreement is required

for a policy decision." (Tsebelis 1995a: 293)

Two kinds of veto players can be distinguished: institutional and partisan veto players

(Tsebelis 1995a: 302-305). Institutional veto players are those whose veto power is laid

down in the constitution and who are the main actors in the final phase of the decisionmaking

process. Depending on the constitution, they include upper and lower houses of

parliament, and/or presidents with legislative powers. 17 In contrast, partisan veto

players are the main actors in what I have labeled phase two of the decision-making

process: the parties which comprise the government. Those parties do not have formal,

but they do have de facto veto power. This de facto veto power is in part due to the fact

that the government is a gatekeeper in the implementation process. It is the government

that decides which directives are introduced into the formal legislative, and hence into

the implementation process. To be sure, in West European democracies not only the

government can introduce parliamentary bills. But again, de facto most bills in these

democracies are formulated by the government (Tsebelis 1995b: 95f.); and it is certainly

plausible to assume that all bills which implement international agreements are

introduced by the government, which has been responsible for negotiating the

international agreement in the first place, and not by members of parliament.

Hence, due to its gatekeeping function, government is a veto player in the

implementation process. But it is not only the government as a whole that possesses this

informal veto power, but every single party inside a government coalition. This is

obvious for "minimum winning coalitions" (Riker 1962: 40 et passim), i.e. for coalitions

which would lose their parliamentary majority if a single member left the coalition.

17

In the legislative process there can be additional veto players, for instance courts or referenda. Even

special requirements regarding the majority with which a bill has to be passed can be regarded as veto

"players" (Tsebelis 1995a: 307). I will ignore these veto players here because they play at best a minor

role with regard to the implementation of EC directives.


14

Here, it is vital for the coalition to ensure the assent of every member to every policy

decision. Otherwise they would run the risk that the outvoted member would leave the

coalition, dissatisfied because – albeit itself a part of government – it could not

influence government policy. This would imply the loss of the parliamentary majority

for the remaining government members and thus probably the loss of governmental

power, a loss they will be eager to avoid. But also government coalitions which are not

minimum winning coalitions (i.e. oversized and minority coalitions) will seek to ensure

the assent of all their members to every policy decision. Obviously, in these cases a

coalition is not forged simply to win a majority in parliament. There must be additional

political reasons that prompt the parties to form such coalitions. Oversized government

coalitions, for instance, are a typical feature of consociational democracies (Lijphart

1977: 25-36). They can be regarded as expression of a societal consensus that

government should be formed by a majority as broad as possible (Kaiser 1997: 427).

Hence, they are not formed for the larger parties to be able to outvote the smaller

coalition partners at will but to ensure that government policies are backed by a majority

as large as possible. Therefore, even small members of an oversized government

coalition will have veto power. This also holds for minority coalitions. Even in such a

coalition it would not make sense to include a party in the government coalition only to

outvote it later with regard to specific policy decisions. Therefore, all parties in

government coalitions can be regarded partisan veto players (Tsebelis 1995a: 304).

Of course, the legislative decision-making process is not only influenced by institutional

and partisan veto players. Also a host of societal actors attempt to influence the

legislative decision formally and informally. They might indeed be very important for

specific policy decisions. Nonetheless, I will exclude them from discussion here for two

reasons. First, every societal actor will become active only with regard to specific issues.

These issue-specific activities can be excluded from an explanation of the general trend

in the implementation behavior of a country. Second, even with regard to single policy

decisions it would be difficult to decide which societal actors to treat as veto players

according to the definition, that is to judge which societal actors actually could prevent a

policy decision. Therefore I will include only those actors which have actual veto power

in every single (legislative) implementation decision, that is institutional and partisan

veto players. "The assumption is that while the number of veto players may vary by

issue or over time, these variations will cancel each other out when applied across

several issues for sufficiently long periods of time." (Tsebelis 1995a: 308)

To sum up it can be said that the liberal approach regards implementation as the result

of a decision-making process that involves several domestic actors. A directive, which

has been negotiated on the European level with the participation of a delegation from


15

each member state, will be implemented in a state if and only if all veto players give

their assent to implementation. In the legislative process, which determines legal

implementation, institutional and partisan veto players can be distinguished.

5.2 Deriving Hypotheses

Now that we have a simple model of decision-making we can start to derive hypotheses

about the results the decision-making process will produce. The implementation

decision will be determined by the preferences of the veto players. For the sake of

simplicity I will combine all veto players which hold identical preferences into a single

one, because in decision-making it does not matter how many veto players hold a certain

preference. 18 One can assume that there are veto players which indeed will hold (nearly)

identical preferences across (nearly) all implementation decisions. For instance, one

might assume that in general a majority government will be supported by the

parliamentary majority (Beyme 1982: 369). In this case it would not make sense to

regard parliament as an additional veto player; because in general parliament will agree

to a decision to which the members of the government coalition have already agreed. In

these cases Tsebelis’ "absorption rule" (Tsebelis 1995a: 309-311) applies: Institutional

veto players with identical majorities are treated as one institutional veto player.

Furthermore, an institutional veto player will be regarded as a distinctive veto player

only if the parties comprising government cannot determine its decisions, i.e. if the

government parties have no majority in this institution. Partisan veto players, however,

will in general be treated as distinctive veto players, because only in very rare cases will

several parties hold nearly identical preferences over a broad range of issues (see also

Tsebelis 1995a: 306f.). Hence, in all that follows I will take into account only those veto

players which hold different preferences.

One last concept is needed to derive hypotheses from the liberal model: the concept of

the "win set." This concept, which is taken from rational choice theory, was introduced

into the International Relations literature by Robert Putnam (1988). With regard to an

international negotiation the win set of a state participating in these negotiations is the

set of those international agreements which would gain the necessary majority for

ratification in the state concerned (Putnam 1988: 437). To translate this for our

purposes: With regard to the negotiations on an EC directive the win set of a member

state is the set of all possible agreements (directives) that would be implemented in that

18

As said above, the implementation decision is not a majority decision – it is a unanimous decision to

which all veto players have to agree. Thus the number of veto players having a certain preference will not

matter as long as this preference is represented at least by one actor.


16

state, i.e. that would gain the support of all veto players. 19 Consider an agriculture

directive: Germany’s win set with respect to this directive includes all possible results of

the negotiations that would gain the support of all German government parties plus the

support of the German upper and lower chamber of parliament provided the government

parties do not have a majority there.

Now we have finally reached the point where we can derive hypotheses from the model:

A directive will be implemented in a member state if and only if it is part of the win set

of the respective member state. The probability that it is part of the win set is the higher

(a) the larger the win set is; and (b) the better the national delegation negotiating the

directive at EC level is informed about the contents of the domestic win set. I will

briefly discuss this and formulate two hypotheses.

5.2.1 Size of the Win Set

The larger the win set is, the more directives it contains. Hence, the larger the win set

the more likely a directive that has been agreed upon in the Council is part of this win

set; that is the more likely is the implementation of the directive by the member state

(see also Putnam 1988: 439).

Therefore, we need to identify those factors which influence the size of the win set

across all directives in order to formulate hypotheses about the implementation rates of

EU member states. Tsebelis (1995a) considers two variables that influence the size of

the win set: the distance between the preferences of the veto players; and the number of

veto players. 20

The closer the preferences of different veto players are to one another, the easier it is to

come to an agreement; the further they lie apart, the harder it is to reach agreement.

Therefore, the win set becomes larger, the smaller the distance between the preferences

of the veto players is. The distance between the veto players’ preferences, however,

depends to a large extent on issue-specific factors. Two veto players may strongly

disagree with regard to an agriculture directive but have very similar preferences with

regard to an equal-pay directive. Since this variable varies with respect to different

19

For a formal definition of the win set, see Shepsle/Weingast (1987: 90); but note that they regard

ratification as a majority decision whereas in our case the assent of all veto players is needed.

20

Tsebelis also discusses a third variable, namely party cohesion. He makes it very clear, that party

cohesion is not identical with party discipline (which can be measured by voting patterns in parliament,

for instance) (Tsebelis 1995a: 311f.), but he does not give any hint as to how to operationalize or measure

party cohesion. I do not see any possibility to operationalize this variable and, therefore, exclude it from

discussion.


17

issues, it can be excluded from a discussion of those variables that determine the general

trend of the implementation behavior of EU member states.

Yet the second factor influencing the size of the win set, namely the number of veto

players, is important for the problem under investigation. The more veto players there

are, the smaller is the win set. For the agreements that n+1 veto players can arrive at,

can only be a subset of what n veto players could agree on (Tsebelis 1995a: 297). Or to

put it differently: If three actors A, B, and C have to agree on a common denominator,

they can only agree on a subset of those positions A and B could agree on. Since the

number of institutional and partisan veto players is not issue-specific, we can directly

derive the first liberal hypothesis:

Hypothesis 3:

The larger the number of veto players is in a country, the lower is its implementation

rate.

5.2.2 Information about the Domestic Win Set

Hypothesis 3 could remain the only liberal hypothesis if the bargaining of a directive at

the European level on one hand and national implementation on the other were two

independent processes. Yet the bargaining and the implementation of a directive are not

completely independent. Rather, bargaining is a two-level process in which the national

delegation serves as a link between the international and the domestic level (Putnam

1988: 434). The delegation attempts to influence the content of the directive with a view

to what can be implemented at the domestic level. The delegation’s aim is to formulate

the directive so that it is contained in the domestic win set. The probability that the

delegation succeeds depends not only on the size of the win set; but also on how well

the delegation is informed about the contents of the win set.

The better the delegation is informed about the preferences of the veto players (which

determine the contents of the win set), the better it is able to bargain in such a way that

the resulting directive will be contained in the domestic win set. Lisa Martin (1995), for

instance, has shown that the fact that the Danish parliament is consulted before the

Danish delegation in the Council takes its position is conducive to Danish legal

implementation rates. This institutional mechanism enables the Danish government to

anticipate domestic opposition and to take it into account when it engages into

bargaining at the European level. The literature on implementation in general regards it

as conducive to implementation when those who are responsible for implementing a


18

policy decision can participate already in the making of the respective policy decision

(see Andresen et al. 1995: 54; Mosley 1996: 26).

Hypothesis 4:

The better the national delegation of a state is informed about the preferences of the

domestic veto players, the higher is the implementation rate of this state.

5.3 Putting the Hypotheses Together

The final step in building a liberal model of implementation is to clarify how the two

independent variables interact to determine the implementation behavior of a state. They

are not completely independent. Consider a country in which the national delegation

possesses perfect information about the preferences of all national veto players. Since

this delegation knows the exact contents of the win set it will agree only to such

directives in the Council that actually lie within the win set; i.e. to directives whose

national implementation is guaranteed. The size of the win set does not matter. Consider

now a country in which the delegation has no information whatsoever about the national

veto players’ preferences. In this case it is completely due to chance whether the

directive passed at the European level lies within the national win set. The larger the win

set, the more likely the directive is contained within the win set. In this case the size of

the win set is all that matters for the probability of implementation.

Hence, how well the national delegation is informed about the veto players’ preferences

has on one hand an independent effect on the probability of implementation (the better

the delegation is informed, the more likely is implementation). On the other hand, it

conditions the effect which the number of veto players has (the better the delegation is

informed the less the number of veto players matters). Two expectations result: (a) The

better the national delegation in a country is informed about the national veto players’

preferences, the higher is this country’s implementation rate (hypothesis 4). (b) The

number of veto players matters only in those countries in which the national delegation

is not well-informed about the veto players’ preferences. Among these countries

implementation rates will vary according to hypothesis 3.

6 Preliminary Test of the Hypotheses

6.1 Dependent Variable

Let us now turn to a preliminary test of the hypotheses derived in the preceding sections.

I will use data on the legal implementation rates of EC countries in the three-year period


19

immediately following 1989 (1990 to 1992). Due to limitations of space I can only

briefly give some reasons as to why I choose these data to test the hypotheses.

I will focus on legal implementation because these records are the only reliable data

readily available, as noted in section 2. Furthermore, I will pool the implementation

rates of three years, a period long enough to exclude singular events that might distort a

country’s implementation rate in a single year. Both models assume that a state has to

implement only directives to which it itself has explicitly agreed. 21 This makes it

necessary to focus on the period immediately preceding the entry into force of the

Maastricht Treaty. Before the TEU came into force the Council of Ministers dominated

decision-making in the EC. Directives were passed according to the "consultation" and

"cooperaton" procedures (see Nugent 1999: 50, 360-366; Weindel 1996: 75-78). In both

procedures it is the Council of Ministers that makes the final decision. The European

Parliament (EP) is consulted and might even ask for changes in the text of a directive,

but eventually the Council can overrule the EP’s decision. Thus, until 1992 the Council

and through the Council the governments of the member states were the most important

actors when it came to deciding about EC directives. In most cases directives were

passed unanimously 22 which implies, in turn, that every member state was able to

influence to a considerable extent the contents of the directives which it had to

implement later on (Edwards, G. 1996: 130). This changed after 1992, because the

Maastricht Treaty extended qualified majority voting in the Council to a wider range of

issues and also extended the rights of the EP which received veto powers with regard to

some issues (see Article 251 [189b] TEC). Therefore, until 1992 EC directives can be

regarded as intergovernmental agreements, whereas their supranational character

became more prominent afterwards. Since both models assume that national delegations

are able to influence the contents of a directive decisively, it is appropriate to test the

hypotheses with data that excludes the directives passed after 1992. Although the

national implementation rates from 1993 to 1997 cannot be used for rigorous hypothesis

testing, I will not completely disregard this data, but use it as additional evidence in

section 7.

The institutionalist hypotheses 1 and 2 apply only to PD directives. Therefore it may

seem necessary to look not at overall implementation rates, but only at the

21

In the institutionalist model this assumption makes it possible to exclude suasion games from

discussion. In the liberal model the underlying assumption is that the national delegation can co-decide on

the contents of a directive on the international level.

22

Only if the national delegations were not able to find a consensus neither in the working groups nor in

the Committee of Permanent Representatives nor in the Council of Ministers itself and if the directive was

concerned with one of those (few) issues on which the Council according to the TEC could decide by way

of qualified majority voting, a vote was taken in the Council (Hayes-Renshaw/Wallace 1997: 48; Nugent

1999: 167-170).


20

implementation of PD directives to adequately test these hypotheses. But how could one

single out PD directives from the more than one thousand directives that were in force at

the beginning of the 1990s? Fortunately, it is possible to avoid this demanding task and

to preliminarily test institutionalism using data on the implementation of all directives

without having to single out PD directives. Rational institutionalism expects variation in

implementation rates only with regard to PD directives. It expects no variation in the

implementation of coordination directives, because the incentives to implement those

directives are overwhelming for every state. Thus, from a rational institutionalist

viewpoint, overall variation in implementation rates can only be due to variation in the

implementation of PD directives. Thus we can use overall implementation rates to

assess differences in the implementation of PD directives. 23

6.2 Independent Variables

There are two independent variables in each model, which have to be operationalized in

order to test the hypotheses: affluence and economic capabilities for rational

institutionalism; the number of veto players and the information the national delegation

has about the domestic win set in the liberal model.

For the operationalization of the institutionalist variables I rely on indicators that are

widely used in the literature. I measure a country’s affluence by reference to its GDP per

capita, its economic capabilities by reference to its GDP.

The operationalization of the liberal independent variables is somewhat more complex. I

count as a veto player: every party in government; every individual or collective actor

with absolute veto power in the law-making process who is not a member or whose

majority are not members of the parties in government. To determine how well the

delegation is informed about the win set I look at national decision-making procedures:

23

The effect that can be detected with regard to overall implementation rates, however, will be smaller

than the effect the independent variables have on the implementation of PD directives (see King et al.

1994: 130-132). Consider a simple numerical example: Two states A and B have to implement 100

directives, 50 coordination directives and 50 PD directives. Both of them implement all 50 coordination

directives. But while state A also implements all 50 PD directives, poorer and smaller B implements only

25 of these directives, i.e. only 50% of those implemented by A. Yet with regard to overall

implementation rates, A (100 directives implemented) has implemented only 25% more directives than B

(75 directives implemented). The smaller the proportion of PD directives in the sample, the more

pronounced is this effect. To ensure that an effect can be detected at all, there must be more than just a

negligible few PD directives among all EC directives. From a rational institutionalist viewpoint there is

reason to believe that this is indeed the case. PD is regarded as one of the most important situation

structures in international cooperation. Robert Keohane’s After Hegemony (1984) is based on this situation

type and a number of other rational institutionalist studies of international cooperation are based solely on

PD (see Grieco 1988b: 604; Hasenclever et al. 1997: 109f.). PD is especially well-suited to model

problems of collective goods and free trade (Stein 1982: 307f.), two issue areas which are particularly

prominent in the EC context.


21

The delegation has "comprehensive information" about the win set if there are national

institutions which make it possible for all veto players to voice their preferences with

regard to a pending EC decision before the national delegation formulates its position

for the negotiations in Brussels; it has "some information" if there are institutions in

which a majority of veto players can voice their preferences; otherwise it has "no

information".

6.3 Test

The data for the independent and dependent variables are reproduced in detail in the

appendix. For the preliminary test of the hypotheses I use simple tables to compare the

values of the independent and dependent variables. To assess the independent effect of

each variable, I will additionally use a multiple linear regression.

6.3.1 Rational Institutionalism

Table 1 contains the data for a test of the institutionalist hypotheses. According to the

model the countries ranking highest in the table (those with a large share of the EC

GDP) should have the highest implementation rates, because they will most likely

belong to the k-group. Countries ranking lower should have lower implementation rates;

within this latter group those countries with the lowest per capita income should have

the lowest implementation rates, according to hypothesis 1.

There are two cases that clearly do not conform with institutionalist expectations: Italy

and Denmark. Italy has large economic capabilities compared to those of the other EC

countries and it also has a fairly large GDP per capita but its implementation rate is

exceptionally low. Thus, Italy’s implementation behavior cannot be accounted for by the

institutionalist model. On the other hand, Denmark has the highest implementation rate,

although it is one of the smallest EC countries. One could argue that its large per capita

income contributes to its high implementation rate; however this cannot explain why

Denmark’s implementation rate is so much higher than that of every other small country

and even higher than those of the four big countries of the EC.

Excluding these two "outliers" for the moment, the pattern in the table conforms fairly

well with the expectations of hypothesis 2. The large countries have the highest

implementation rates (averaging 93.6%), while those of the small countries are

consistently lower (averaging 89.5%). 24 The expectations of hypothesis 1, however, are

hardly confirmed. To be sure, the two small countries with the lowest GDP per capita

24

η² = .530, p = .017.


22

(Portugal and Greece) do have the lowest implementation rates. But there is no

consistent pattern for the small countries with higher GDP per capita.

Table 1: Rational Institutionalist Variables and Implementation Rates

Country Share of EC

GDP

GDP per capita

(Purchasing

Implementation

rate

Power Parities

per capita)

GER 26.40% 16,732 92.7%

FRA 19.00% 16,951 93.8%

ITA 17.69% 15,743 82.4%

UK 15.52% 14,896 94.2%

SPA 8.15% 11,734 91.9%

NET 4.57% 15,499 92.1%

BEL 3.14% 16,335 90.1%

DEN 2.05% 16,172 96.5%

GRE 1.38% 9,208 87.5%

POR 1.20% 9,451 86.2%

IRE .74% 11,555 90.3%

LUX .17% 22,903 88.5%

avg. implementation rate of "big countries" (GER, FRA, ITA, UK): 90.8%

avg. implementation rate of "small countries": 90.4%

Thus, this more or less informal evaluation of the institutionalist model suggests that a

country’s economic capabilities do have an effect on its implementation rate, while its

affluence does not have a visible effect. That is, it is most important whether a country

belongs to the k-group or not. Italy’s and Denmark’s implementation behavior cannot be

accounted for by the institutionalist model.

6.3.2 Liberalism

Table 2 contains the data for the test of the liberal model. The expectation is that the

countries ranking highest in the table (national delegation is well-informed about the

win set) have the highest implementation rates, those ranking lowest have the lowest

rates and those in the middle take the middle ground. Within the first group, the number

of veto players should have no visible effect on implementation rates, whereas among

the countries at the bottom of the table those with higher numbers of veto players should


23

have clearly lower implementation rates. For the countries in the middle group ("some

information"), some effect of the number of veto players should be visible, too.

Table 2: Liberal Variables and Implementation Rates 25

Country Information about the Number of Veto Implementation Rate

National Win Set

Players

DEN comprehensive 3.3 96.5%

UK comprehensive 1 94.2%

FRA comprehensive 2.6 93.8%

GER comprehensive 2.9 92.7%

NET comprehensive 2 92.1%

BEL comprehensive 4.6 90.1%

POR comprehensive 1.6 86.2%

SPA some 2 91.9%

IRE some 3 90.3%

GRE none 2.1 87.5%

ITA none 4.4 82.4%

means comprehensive 92.2%

some 91.1%

none 85.0%

(Note: Luxembourg has 2 veto players. Since data on how well the national delegation is informed about

the domestic win set is not available, Luxembourg was excluded from the test of the liberal model.)

The only exceptional case with respect to the liberal model is Portugal. In Portugal the

national delegation is well-informed about the national win set, and there are even only

very few national veto players, but the Portuguese implementation rate is one of the

lowest in the Community. However, even if Portugal is not excluded, the overall "fit" of

the liberal model is quite astounding: Those countries in which the national delegation is

well-informed about the national veto players’ preferences, on average, have the highest

implementation rates. Those in which the delegation has no information about the win

set, clearly have the lowest implementation rates, and those in which there is only some

information about the national veto players’ preferences take the middle ground. 26

25

I have discussed the values for the variable "information about the national win set" at length

elsewhere (Peters 1999: 66-89). My main sources included: Grottanelli de Santi (1992), Ioakimidis

(1994), Laffan (1991), Nehring (1992), Norton (1996), Rambaud (1993), Rometsch/Wessels (1996), and

Sørensen/Væver (1992). For details on the number of veto players, see appendix.

26

η² = .509, p = .058.


24

Furthermore, in the countries belonging to the first group, the number of veto players

seems not to systematically affect implementation rates. In the other groups, those

countries with most veto players have the lowest implementation rates.

Of course, this cannot be regarded as a final proof of the liberal hypotheses. The number

of cases in the categories "some information" and "no information about the national

win set" is simply to small. But the evidence for the liberal model is nonetheless more

convincing than that for the institutionalist model.

6.3.3 Both models

For a final assessment of the explanatory power of the variables I enter them into a

multiple regression. The multiple regression, however, does not reflect the hierarchical

relations between the independent variables as specified in the different models.

Moreover, the results can hardly be statistically significant due to the small number of

cases (n = 12) and the large number of independent variables. Therefore the regression

cannot provide a conclusive test of the models either, but it will serve to further

strengthen or weaken our confidence in the explanatory power of the two models. The

results of the regression are reported below. 27

Unstandardized

Coefficient B

Std.

Error

Standardized

Coefficient

Beta

t

Significanc

e p

(Constant) 83.932 6.528 12.857 .000

Number of veto

players

Comprehensive

information

(dummy)

Some

information

(dummy)

-.430 1.038 -.119 -.414 .693

6.903 2.931 .863 2.355 .057

6.133 3.677 .615 1.668 .146

Log GDP 1.004 2.118 .137 .474 .652

27

To reduce the number of independent variables, I exclude GDP per capita from the regression.

According to the models this should be the least important of the independent variables. I use log(GDP) as

variable representing a country’s economic capabilities, because the relationship between a country’s GDP

and its implementation rate is non-linear as a scatterplot reveals which is not reproduced in this paper.


25

The results of the regression once again highlight the importance which national

decision-making procedures have: A country in which the national delegation is wellinformed

about the national veto players’ preferences has an implementation rate which

is on average 6.9 percentage points higher than that of a country in which the delegation

has no information about the win set. This effect is the only statistically significant

effect in the regression. As predicted by the liberal model, the number of veto players

has (a) a much weaker, and (b) a negative effect on a country’s implementation rate. Not

surprisingly, this effect has no statistical significance in the regression. The effect of

GDP also is statistically insignificant. This underlines that the liberal variables are more

important for explaining overall implementation rates than those of the institutionalist

model. It does not imply, however, that the institutionalist model completely fails at

explaining implementation behavior. Note that, as mentioned above, the strategy to test

those hypotheses which apply only to PD directives using data on all directives produces

statistical results that might seriously underestimate the actual effect that the

independent variables have on the implementation of PD directives.

There is additional evidence which leads one to suspect that both models contribute to

an explanation of implementation behavior. Those countries which are outliers for one

model are explained, but extreme cases in the other model. This suggests that an

extreme value on one of the independent variables overshadows the effect that the other

independent variables have. Consider Italy: This country has an exceptionally low

implementation rate although its economic capabilities and its per capita income would

lead us to expect a fairly high implementation rate. From the liberal viewpoint the

extremely low implementation rate is hardly surprising: In Italy the national delegation

has no information about the national win set and on top of that, Italy has one of the

highest numbers of veto players. The exceptionally high implementation rate of

Denmark, which is the second country not accounted for by institutionalism, is also

explicable by reference to the liberal model. Denmark is the only country in which the

national delegation not only is informed about the national veto players' preferences but

in which these veto players have actual veto power before a directive is negotiated at the

EC level. The Folketing, Denmark's parliament 28 , has a European Affairs Committee

with exceptional institutional powers. The government has to inform the committee

about all directives which are to be negotiated at the European level. In the committee

the responsible minister explains the government position and takes notice of the

committee's position. Although de jure the committee can formulate a binding mandate

for the negotiations only in special cases (Sørensen/Væver 1992: 5), the Danish

government usually follows the position of the committee (Arter 1996: 111). Since

28

The Danish parliament acts as a veto player with respect to the implementation of EC directives

because during the period covered here Danish governments were minority governments.


26

coordination among members of government is also very strong in Denmark (Pedersen

1996: 199-202) all national veto players have de facto veto power not only when it

comes to implementing a directive but already when the Danish position on a directive

in the Council is formulated. Thus, not only is the Danish delegation well-informed

about the domestic win set, it is even obliged to negotiate in such a way that the

resulting directive will fall within this win set. This way high implementation rates are

guaranteed from a liberal point of view. Therefore, in the Danish case, as in the Italian

case, an extreme value on the liberal independent variables overrules the effect of the

other independent variables, thus making Denmark an outlier for the institutionalist

model.

Finally, Portugal cannot be accounted for by the liberal model: Although the national

delegation is well-informed about the win set (and although there are only few veto

players in Portugal), Portugal has a very low implementation rate. This in turn can be

explained by the institutionalist model. Portugal has both a very small GDP and a very

small GDP per capita relative to the other EC member states. This very unfavorable

economic situation might overrule the effect of the relatively favorable structures of

national decision-making and account for the low Portuguese implementation rate.

Taken together, there is evidence that both rational institutionalism and liberalism

account for the implementation behavior of EC member states.

7 Summary of Findings and Policy Implications

Why then do EC member states fail to implement EC directives? Interests and structures

of national decision-making account for non-implementation. To some degree nonimplementation

may be explained by a state’s interests as a voluntary decision of the

state against the implementation of directives due to a rational calculation of costs and

benefits. Especially for smaller states (that is, for those states which are likely not to

belong to the k-group) there may be incentives to act as free riders with regard to certain

directives. However, the better part of non-implementation can be explained as "nonvoluntary

defection" (Putnam 1988: 438f.): The national delegation negotiates a

directive with the intention to actually have it implemented later by domestic actors.

However, national veto players refuse to implement the directive because it does not

reflect their preferences adequately. This gap between the intentions of the national

delegation and the decision of national veto players is most often due to the fact that the

national delegation is not appropriately informed about national veto players’

preferences before it takes its stance in the negotiations at EC level. Where the national

delegation has no comprehensive information about the veto players’ preferences, a high


27

number of veto players has additional detrimental effects on national implementation

rates.

Now that (some of) the causes of non-implementation have been anlayzed we can return

to the opening question: How can implementation rates be improved?

Since legal implementation rates are higher than or only little below 90% some might

ask why one should aim at increasing implementation rates at all? But to infer from high

legal implementation rates that there is no need for a further improvement of the

implementation of EC legislation would be premature. EC organs have repeatedly

pointed to the need to improve implementation. Furthermore, one can assume that high

legal implementation rates mask much lower administrative implementation and

compliance rates. Since both models presented here are general enough to apply to all

phases of the implementation process, it seems worthwhile to translate the findings into

some policy advice.

According to the results presented here, there are basically two ways of improving

implementation rates: by changing states’ cost-benefit calculations and by changing the

institutional structures of the domestic decision-making process.

For the EC institutions, which can hardly influence national decision-making structures,

it will be most rewarding to focus on the first of these two possibilities, that is to

influence national cost-benefit calculations. It is true that the most important variable

affecting national calculations of costs and benefits, namely membership in the k-group

which is determined by a country’s economic capabilities in relation to those of other

EU countries, cannot be changed by European institutions. The clear differences in the

economic capabilities of the member states cannot be completely leveled. Thus, there

will always be incentives for smaller states to choose free-riding strategies with respect

to PD directives. However, the EC can counter these incentives by raising the cost of

non-implementation. Indeed, this was the main strategy employed in the past years. In

Maastricht the possibility to impose fines on states which did not fulfill their

implementation obligations was introduced into the TEC. Thus the costs for nonimplementation

were raised. If states are sensitive to costs, as the institutionalist model

suggests, implementation rates should have gone up since then. Moreover, the

institutionalist model would lead us to expect that the rise was especially pronounced in

those countries which had had large incentives for free-riding before, that is for small

states not belonging to the k-group. For the members of the k-group the incentives for

non-implementation have always been very low so that they will be less affected by a

rise in the costs of non-implementation. The empirical evidence supports these


28

expectations. There are only two states whose implementation rates did not rise after the

Maastricht Treaty had entered into force, namely Germany and France, both members of

the k-group. 29 Excluding Italy once again, which as we have seen above is a special case

for the institutionalist model, those countries with the lowest rise in implementation

rates after 1992 are the United Kingdom (the smallest of the three "big" states

considered here) and Spain (the largest of the "small" states). The smaller states all show

considerably larger rises in their implementation rates. This may serve as further

evidence for the institutionalist model. It also illustrates that the strategy of raising the

costs of non-implementation appears to have been successful. The Commission and the

ECJ now seem to have a more effective means at their hands to ensure that EU member

states stick to their obligations.

Yet the results of this study also suggest that such a European strategy can only be

partially successful, because a state’s utility function is only one factor among many

which influence its implementation behavior. Domestic decision-making procedures

have an even more important effect on implementation rates. To be sure, there are ways

in which European institutions could counter detrimental effects of unfavorable

domestic decision-making procedures. It would be possible, for instance, to directly

include national veto players’ preferences in the formulation of directives effectively

bypassing national delegations. For instance, there might be hearings with national

interest groups (which are important veto players in the compliance phase of

implementation) before the Commission formulates the draft directive. Also the EP

could serve as a channel for national societal veto players to influence the European

decision-making process, at least for those subject matters where the EP has an effective

co-decision power. The participation of the Committee of Regions in the European

decision-making process could have positive effects on implementation, too, because

the regions are in many countries important veto players during the phase of

administrative implementation. In these ways, European institutions could help to adjust

the contents of directives to the national veto players’ preferences. This can be expected

to have positive effects on national implementation rates.

But the most obvious way of including national veto players into decision-making

would be via national decision-making procedures that is by giving the veto players a

say already during the formulation of national positions in the Council. This cannot be

accomplished by EC institutions but is up to the member states themselves. In several

member states there have indeed been considerable changes in this respect. Especially

national parliaments were able to increase their leverage over the formulation of

national positions in the Council (see Hayes-Renshaw/Wallace 1997: 226, and the

29

See appendix for the exact figures.


29

contributions to Norton 1996). While parliaments themselves are veto players only in

some special cases (namely with respect to legal implementation if the government has

no parliamentary majority), they also serve as access channels to the national decisionmaking

process for interest groups and other societal actors, so that a better integration

of parliaments into national decision-making prior to negotiations at EC level will also

serve to improve compliance rates.

The liberal model suggests that it is most important to provide the national delegation

with comprehensive information about national veto players’ preferences before

negotiations start in Brussels. If this can be achieved the number of veto players will

lose its importance and implementation rates will improve considerably even if the

number of veto players in a state is large. This will also serve to address the "democratic

deficit" in the Union. By improving the integration of those affected by policy decisions

into the formulation of these decisions (be it through European or through national

channels) democratic control over policy is improved. 30

Hence, there is a multitude of possibilities to improve implementation rates and thus to

make European policies work better. Particularly promising are the use of material

sanctions against non-implementers and better incorporation of those who are

responsible for implementing a policy decision into the making of this decision. Note,

however, that there is an important trade-off with respect to the latter option. The more

veto players are involved in the formulation of a policy decision, the more difficult it is

to reach agreement about this decision. That is, by involving the veto players in the

formulation of a decision the implementation problem is shifted to the formulation

phase. The more a delegation is restricted to a certain position in the negotiations by the

domestic veto players, the less flexible it will be on the European level and the harder it

will be to strike a bargain. Denmark, which is the only member state in which

parliament can actually co-decide about the national position in the Council, is a case in

point. The Danish delegation is often the least flexible one in Council negotiations and it

often explains its inflexibility by reference to the domestic decision-making procedures

which put firm constraints on it (Hayes-Renshaw/Wallace 1997: 232). One can easily

imagine that decision-making in the Council would become virtually impossible if all

member states duplicated the Danish decision-making procedures.

Thus, there is a trade-off between improving implementation and deteriorating

efficiency of decision-making in the Council. The EC and its member states have to

strike a careful balance between a functioning European bargaining system on the one

30

This is noted by Lisa Martin (1995) with respect to the access to European decision-making through

national parliaments.


30

hand and acceptable implementation rates on the other. If they prefer to improve

implementation rates it might be necessary to accept that agreement on further progress

of European integration will become more difficult to reach.


31

Appendix

Implementation Rates

Legal Implementation Rates 1990-1997 (Percent)

1990 1991 1992 1993 1994 1995 1996 1997

BEL 91.7 88.0 90.5 90.7 89.7 89.5 92.4 91.8

DEN 96.6 97.0 96.0 95.4 97.6 97.9 98.2 97.0

FRA 93.5 95.0 93.0 89.7 92.3 92.7 91.8 93.6

GER 95.3 92.9 89.9 88.9 91.0 92.9 93.5 93.6

GRE 84.5 89.6 88.3 88.1 86.7 89.8 91.1 92.8

IRE 91.2 88.6 91.1 88.7 91.9 92.8 93.0 94.1

ITA 81.7 76.5 89.1 88.9 88.4 88.7 89.6 92.4

LUX 90.1 86.9 88.4 90.7 93.7 94.2 93.4 94.2

NET 93.1 90.0 93.1 92.4 93.7 97.2 97.3 96.4

POR 84.0 85.5 89.2 89.2 89.4 90.0 91.8 93.5

SPA 93.5 92.0 90.2 90.1 91.2 93.1 94.7 95.1

UK 94.6 94.7 93.2 92.3 96.5 95.1 94.2 94.7

Sources: EC Commission 1991-1998

Change in Implementation Rates

Implementation

Rate

1990-1992

(%)

Implementation

Rate

1993-1996

(%)

Change

1993/96 as

compared to

1990/92

Change

1993/96 as

compared to

1990/92

(Percentage

Points)

BEL 90.1 90.6 .57% .5

DEN 96.5 97.3 .77% .7

FRA 93.8 91.6 -2.34% -2.2

GER 92.7 91.6 -1.23% -1.1

GRE 87.5 88.9 1.67% 1.5

IRE 90.3 91.6 1.44% 1.3

ITA 82.4 88.9 7.85% 6.5

LUX 88.5 93.0 5.14% 4.5

NET 92.1 95.1 3.34% 3.1

POR 86.2 90.1 4.49% 3.9

SPA 91.9 92.3 .41% .4

UK 94.2 94.5 .38% .4


32

Data for the Independent Variables of the Institutionalist Model

Gross Domestic Product (in current prices, billion ECU)

1990 1991 1992 1993 1994 1995 1996

BEL 152.6 160.6 171.7 180.8 193.6 205.9 208.4

DEN 101.7 104.7 109.6 115.2 123.1 132.5 137.7

FRA 941.5 971.7 1022.1 1066.8 1122.6 1176.2 1217.5

GER 1182.2 1391.5 1522.3 1630.9 1725.3 1845.2 1854.0

GRE 65.3 72.1 75.6 78.6 82.5 87.4 96.8

IRE 35.9 37.5 40.4 41.5 45.4 49.2 55.3

ITA 861.2 931.1 941.7 842.0 855.6 831.4 956.5

LUX 8.1 8.8 9.8 11.0 12.3 13.3 13.8

NET 223.4 234.8 248.9 267.3 284.0 302.5 309.2

POR 53.1 61.8 71.1 70.1 71.5 76.9 81.9

SPA 387.5 427.6 446.0 408.6 407.1 428.1 462.7

UK 769.6 818.7 809.3 805.9 857.1 841.6 902.5

Source: Eurostat 1997: 208

Gross Domestic Product per Capita (Purchasing Power Standards per capita)

1990 1991 1992 1993 1994 1995 1996

BEL 15,313 16,293 17,399 18,025 18,929 19,337 20,424

DEN 15,302 16,474 16,739 17,775 19,049 20,023 20,889

FRA 16,114 17,163 17,575 17,307 17,920 18,544 19,307

GER 17,046 16,071 17,080 17,142 18,325 19,063 19,656

GRE 8,539 9,249 9,837 10,223 10,799 11,322 11,773

IRE 10,583 11,532 12,551 13,191 14,706 16,022 18,106

ITA 14,886 15,895 16,449 16,126 17,059 18,304 19,075

LUX 21,197 22,934 24,577 26,103 28,074 29,134 30,639

NET 14,832 15,521 16,144 16,510 17,447 18,473 18,990

POR 8,709 9,568 10,076 10,596 11,197 11,585 12,252

SPA 10,966 12,031 12,206 12,354 12,668 13,230 13,971

UK 14,527 14,708 15,453 15,705 16,406 16,516 17,958

Source: Eurostat 1997: 210


33

Data for the Independent Variables of the Liberal Model (1990-1992)

Country

government

coalition (cabinet)

government

majority in

lower house?

government

majority in

upper house?

BEL until Aug 1991:

CVP, PSC, SP, PS,

VU

since Sep 1991

CVP, PSC, SP, PS

DEN until Nov 1990:

KF, V, RV

since Dec 1990:

KF, V

FRA until May 1991

PS

May 1991-Apr 1992:

PS, GE

since Apr 1992:

PS, MRG

GER since 1982:

yes until Sep 1990:

CDU/CSU, FDP

no

CDU/CSU, FDP yes Oct 1990 until

Dec 1990:

yes

number of

partisan

veto players

number of

additional

institutional

veto players

yes 5 0 4.6

yes 4 0

no 3 1 3.3

no 2 1

no 1 1 2.6

no 2 1

no 2 1

2 1 2.9

2 0

CDU/CSU, FDP yes since Jan 1991: 2 1

no

GRE until Mar 1990: yes 3 0 2.1

ND, PASOK, KP

since Apr 1990: no 1 1

ND

IRE since Jul 1989 no 2 1 3

FF, PD

ITA Jul 1989-Apr 1991 yes yes 5 0 4.4

DC, PSI, PRI, PSDI,

PLI

since Apr 1991: yes yes 4 0

DC, PSI, PSDI, PLI

LUX since Jul 1989: yes 2 0 2

CSV, LSAP

NET since Nov 1989: yes 2 0 2

CDA, PvdA

POR until Sep 1991:

PPD/PSD, CDS

yes 2 0 1.6

since Oct 1991: yes 1 0

PPD/PSD

SPA since Nov 1989: no 1 1 2

PSOE

UK since 1979:

yes 1 0 1

CP

no upper house

upper house has no absolute veto power

Sources: European Political Data Yearbook 1992, 1993, 1994; where necessary, data was amended by

reference to Ismayr (1997).

number of

veto players

1990-1992

(avg.)


34

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