Paper Issues of transposition and interference Table of Contents

Selection of Domestic Explanatory Factors

A considerable share of compliance studies builds on the “misfit hypothesis” (cfr. Héritier, Knill and Mingers, 1996; Börzel, 2000, 2005, 2011; Börzel and Risse 2000; Risse, Cowles and Caporaso, 2001). This hypothesis sees the degree of misfit between the pre-existing national legislation and the European directive as an explanatory variable for maltransposition. It holds that when a European measure is compatible with the national traditions (fit) the cost of adaptation is low and the transposition unproblematic. The more they are irreconcilable (misfit), the more the adaptation cost rises - along with the chances of cumbersome and tardy transposition (Falkner, et.al., 2005). One can then expect difficulties in the transposition of directives into strongly developed national policy domains. Where, conversely, the policy domain is new to the national legal order, transposition also tends to be problematic. This is because the adaptation costs increase through the need for new structures and institutions, and the need to deal with political and interest group opposition. Adaptation costs will be lower where changes are incremental rather than profound.
Goodness of fit should, however, be understood as a necessary though not sufficient condition for adaptation. It does not bring a strict causal relationship to compliance but is mediated by domestic factors (cfr. Mastenbroek, Keading 2006, Ancygier 2013, Falkner et.al. 2005). Indeed, a complex combination of administrative, institutional and actor-based factors– through the mechanism of goodness of fit – hold explanatory power for the outcome of transposition processes. Manifold such factors have been proposed throughout the literature. The ‘worlds of compliance’-typology put forward by Falkner et.al. (2005) is a useful tool in order to select a workable and promising set of independent variables. Falkner et.al. (2005) propose an organization of EU member states into an ideal-type classification of transposition patters, namely three worlds of compliance. The membership of a member state into these worlds of compliance is based on their ‘specific national culture of digesting adaptation requirements’ (Falkner et.al 2005). This typology does not point to good, mediocre or bad transposition outcomes, but refers to the ‘typical patterns of how a duty to implement a piece of EU law in the national context is tackled procedurally’ (Ibid.). For each of the three worlds of compliance, another factor seems to determine the outcome of transposition of particular directives. They distinguish between the world of law observance where the compliance culture plays an important role; the world of domestic politics where the fit of the directive with political preferences is predominant; and the world of neglect where maltransposition is likely to come forth from administrative non-action (Ibid.). The authors place both Belgium and the UK in the world of domestic politics. Here, domestic interests tend to prevail in case of misfit with the EU directive as obeying EU rules is only a rather fragile aspiration among many other goals.
The typology distinguishes between an administrative and a political transposition phase. In the administrative phase adaptation requirements to comply with the directive are identified and the transposition process is initiated. Consequently, the involved actors are extended to include (among others) politicians and interest groups, which discuss the transposition proposal and decide on its further course. The world of domestic politics is characterized by an administrative system compelled to abide EU rules, countered by a political phase during which compliance is no longer the main goal and where transposition can be blocked or diverted into an incomplete or even flawed transposition (Ibid.). The worlds of compliance serve to filter “which explanatory factors are relevant for different country clusters and what direction their influence is” (Falkner et.al. 2007).
The predominant logic for both Flanders and Scotland is expected to be the pursuit of political interests, where lack of compromise (or compromises against the terms of the directive) would be a major determinant of non-compliance. Compliance is more likely where conflict with domestic interests, is absent, and cases of maltransposition are expected to linger a long time before being resolved (Falkner et.al. 2005). The eventual resolution of non-compliance is likely to result from a change in the domestic cost-benefit analysis of compliance, triggered for example by complaints by active domestic interest groups or pending sanctions.
Taking Falkner et. al.’s typology into account, we expect transposition performances in Flanders and Scotland to be linked to the existence of EU law-abiding administrations and political contestations of the directives’ requirements, mediating the effects of goodness of fit and adaptation pressure. A number of factors is selected according to this logic:

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  Political priority – The more political attention is given to abiding EU-obligations and to the the transposition progress, the more proficiently it will be handled (Bursens & Helsen, 2000). The priority a