Paper Issues of transposition and interference Table of Contents

Paper
Issues of transposition and interference
Table of Contents
Introduction: 3

1. 
   Selection of Domestic Explanatory Factors 5
   
2. 
   How do Flanders and Scotland Transpose Directives? 11
   
   1. 
      Shaping the National Negotiation Position 11
      
      1. 
         Flanders 11
         
      2. 
         Scotland 12
         
   2. 
      Transposing Directives at the Subnational Level 12
      
      1. 
         Flanders 13
         
      2. 
         Scotland 15
         
   3. 
      Infringement Procedures and Sanctions for Maltransposition 17
      
3. 
   Preliminary Findings and Expectations 18
   
   1. 
      Overall Transposition Performance and Evolutions 18
      
   2. 
      Goodness of Fit 20
      
   3. 
      Political Priority 21
      
   4. 
      Complexity of the Division of Competences 23
      
   5. 
      Cooperation and Coordination 25
      
   6. 
      Administrative Capacity: Expertise and Workload 26
      

Conclusion: Expectations and Further Course of the Research 28
References 30

Introduction:

In an ever deepening European Union, an increasingly substantial portion of national and regional legislation is in fact European, or at least in origin. One instrument of European legislation is the drafting of EU directives. These are particularly interesting because they do not have a direct effect in national law but require national implementation measures. As directives are result-oriented, they grant the governments some leeway in how to fulfill their obligations. For each transposition process the directive specifies a certain term to do so. The possibility thus arises that the provisions of a directive might not be transposed timely or not correctly (meaning not conform with other provisions of EU law or not in line with the directive’s wording or spirit). Maltransposition then, is a compound term for delayed and non-conform transpositions.
Compliance research studies causal conditions for maltransposition. A wide array of variables has been identified as either beneficial or detrimental to the transposition process. Institutional and cultural features of the transposing entity may ease the transposition or render it more challenging. Additionally, external factors -such as characteristics of the directives or the focus and control capacity of the EU institutions - undoubtedly impact the transposition processes. These external factors, however, cannot explain variation in the transposition of specific directives over different transposing entities. Consequently internal variables are key to this research.
In federal and decentralized member states subnational entities are competent to transpose EU directives according to their domestic competences. Consequently, here, multiple entities are jointly responsible for the transposition performance of the country. These entities are faced with complex institutional settings and do not have a distinct voice in the EU policy-making process. Therefore it is interesting to study how they deal with the opportunities and obligations EU directives entail, how they perform and what can explain variation between them.
This research is innovative and relevant as it approaches the question of compliance with EU law on the subnational level. Although the political profile of subnational entities in the EU has been increasing over the past decades, the issue of subnational transposition has hardly been studied. On the one hand, studies on subnational entities so far did not include analyses of transposition, but focused instead on their role in the European-level policy-making phase or on the management of European structural funds. The compliance literature on the other hand, is very much directed at the member state level, though acknowledging that decentralized states are confronted with a complex set of actors and competences and the need for streamlined coordination between all levels involved. Promisingly, Borghetto and Franchino (2010) examined the involvement of subnational authorities (also including e.g. provinces) in the transposition of EU directives and consequently hint a link between federalism and transposition delay.
A comparative study on the actual transposition performances of subnational entities within EU member states and the explanation of their variation is still lacking. This research contributes to the compliance literature by bringing the internal multilevel organization into the equation. It not only brings an innovative empirical test of factors influencing transposition success but can also theoretically expand the literature. An additional point of relevance is that many of the existing case studies need an update as the subnational entities themselves, their attention to transposition, and the EU’s infringement procedure have changed considerably over the past decade.
This study seeks to uncover the transposition performance of subnational entities over the last five years, as well as to test propositions made in the compliance literature on the subnational level. Data for this research was retrieved from academic literature on compliance and studies on the countries and regions at hand, from preliminary interviews and official and legal documents (on subnational, national and European level), including the systematic (regional) government follow-up reports on transposition dossiers.

Compliance research requires a balance between on the one hand understanding the complexity of the effects of combinations of and interactions between manifold factors, and on the other hand keeping the study and its results feasible and understandable. A selection of explanatory factors at the expense of others is inevitable. The selection of factors and the reasoning behind it, is outlined in the first chapter if this paper. In the second chapter the role of Flanders and Scotland regarding EU directives is briefly introduced. Finally, the ,explanatory conditions are explored a first time in both cases, developing expectations as to their differential organization and the impact thereof on their transposition performance. These expectations and the proposed approach for the remainder of the research are given in the conclusions.

1.