Paper Issues of transposition and interference Table of Contents

particular transposition dossier receives also holds relation to the salience of European issues – or a European issue in particular. An issue that catches much attention – politically, societally or by the media – incites domestic politicians to take an active stance (Bursens & Deforche, 2008). This political priority can either boost the process or hamper it, depending on whether the domestic political priorities coincide or clash with the directives’ requirements. Where the domestic interest does not coincide with the directive’s requirements, political attention and debate will slow down transposition. More technical issues with low salience and a low political, economic, or societal impact can be reasonably thought to be transposed more easily as they are not likely to be object of vivid debates once the administrations – in cooperation with sectorial experts – have drafted a legislative proposal.

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  Complexity of the division of competences for transposition – Subnational and national authorities’ responsibilities for transposing directive provisions coincides with their domestic competence allocation. For transposition to be timely and correct all national implementing measures –without regard to the issuing authority – need to be conform the directive and notified to the European Commission before expiration of the transposition deadline.
  

Consequently, many subnational and national veto players are involved. As the visions of different actors can be at odds with each other, a large number of institutional or de facto veto players makes it more difficult to reach an agreement (Steunenberg, 2006; Mbaye, 2001, 2003; Keading, 2007; Falkner et.al. 2007). The impact of the number of veto players is considerable as they constitute gateways for political concerns which may block the transposition process (Falkner et.al. 2007).
The entirety of a directive often entails the involvement of multiple vertically (national- subnational) and horizontally (different departments on one level) linked authorities, each responsible for part of the transposition. The more entities involved in transposition, the more coordination is needed to ensure successful transposition. Additionally, it is not always clear from the outset who’s competences are invoked by the directive. Uncertainties or disagreements on who needs to transpose what are bound to delay the transposition process. Disagreements on policy competence are, essentially, highly political.

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  Cooperation and coordination in the transposition phase –Member states being viewed by the EU as unitary actors, any form of maltransposition by any of the jointly responsible transposing authorities can trigger an infringement procedure. It is thus in the best interest of both the subnational and national levels of government to cooperate. The complexity of coordination issues increases as the complexity and division of competences does. Firstly, the coordination mechanism is complex and gains importance as the different transposition measures should cover all of the territory and all of the directive without contradicting or impeding each other. Secondly, a defensive attitude towards gained competences can instigate institutional jealousy. This happens where political and administrative actors are strongly committed to their competences and do not tolerate much interference of other actors in their processes. Formalised cooperation mechanisms can help counter this tendency. Moreover, a continuous stream of information needs to be present between those actors involved in the negotiation phase and those who are charged with the transposition so that both groups understand the philosophy behind the directive and know what is desirable and manageable from a financial, political and practical viewpoint (Bursens & Helsen, 2000). This requires well-conceived mechanisms where some transposing actors are not present in negotiation.
  

The existence of one or multiple formal systems of coordination – administrative and/or political – can improve the transposition process. Such mechanisms help to distribute the necessary non-material resources, facilitating domestic adaptation. In practice they can take the form of formal or informal ‘European expert’ meetings. Here, European experts of administrative units and political cabinets follow-up the European dossiers and develop common positions (Bursens & Deforche, 2008).

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  Administrative capacity in terms of expertise and workload – Expertise here can be simply seen as a proper knowledge, first, of the European policy-making and –taking process, and second of the regulated issue at hand. The latter then includes both a good understanding of the content and intent of the directive and the more technical sector-specific expertise to translate this into the internal order. Sectorial expertise can be sought in specialized agencies, or for example through sectorial consultation. The more expertise is present at the administration itself, the better one can expect the transposition (drafting phase) to go. Also, ministries and administrations are often concerned with the transposition of multiple
  

Directives at once. The more processes run simultaneously, the longer they will take as resources are divided. If the administrations cannot swiftly draft transposition proposals, the chances of catching up lost time in order to still meet the transposition deadline shrink quickly. Therefore, governments should be attentive to capacity necessities and remedy administrative bottlenecks (Falkner, et.al., 2005). They could, however, also hide behind the argument of resource deficiency as not to openly disclose their resistance (Ibid.). Transposition strategies also affect the timeliness and correctness of the implementing measures. One can either ‘copy-out’ a directive by copy pasting its provisions in their original wording into a new internal law, or ‘elaborate’ by translating the content and spirit of the directive into the legal order using the wording and concepts of the domestic tradition and fitting it to the specific internal context. While copying out can lower the required resources for drafting legislation it can also incite non-conformity concerns by the European Commission.


Figure 1: Selection of explanatory domestic variables.

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