Signalling ‘compliance’: The link between notified EU directive implementation and infringement cases

Date01 September 2015
Published date01 September 2015
Subject MatterArticles
European Union Politics
2015, Vol. 16(3) 408–428
! The Author(s) 2015
Signalling ‘compliance’:
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The link between
DOI: 10.1177/1465116515576394
notified EU directive
implementation and
infringement cases
Asya Zhelyazkova*
Swiss Federal Institute of Technology Zu¨rich (ETHZ), Switzerland
Nikoleta Yordanova*
University of Mannheim, Germany
Research on member states’ compliance with European Union legislation often focuses
on the timing of self-reported implementation measures. It is generally assumed that the
earlier a member state adopts an implementation measure the more compliant it is.
This is problematic because early measures may only partially address the goals of a
European Union directive. We study whether and when reporting national legislation to
signal directive implementation is associated with detected non-compliance by the
European Commission. We find that unless facing strong reputational costs, member
states often do report pre-existing measures of low fit to a given directive without
making timely adjustments. Indicating compliance problems, this generally leads to the
European Commission opening infringement cases.
Compliance, EU directives, infringement cases, implementation measures
Corresponding author:
Asya Zhelyazkova, Center for Comparative and International Studies, Swiss Federal Institute of Technology
Zu¨rich, Haldeneggsteig 4, 8092 Zu¨rich, Switzerland.
*The order of authors’ names reflects the principle of rotation. Both authors have contributed equally to this

Zhelyazkova and Yordanova
The success of European integration depends on the extent to which the decisions
adopted by the European Union (EU) are implemented by its member states. It is
then not surprising that research on national compliance with EU legislation is
abundant. Many studies equate member states’ implementation performance with
the speed or timeliness of self-reported legal measures adopted at the national level
to meet specif‌ic EU requirements (see, for example, Berglund et al., 2006;
Haverland et al., 2011; Ko¨nig and Luetgert, 2009; Luetgert and Dannwolf, 2009;
Mastenbroek, 2003; Thomson et al., 2007). In particular, the member states are
expected to incorporate the EU directives into their national legal frameworks,
meeting strict deadlines but with instruments of their choice. Data on the imple-
mentation performance are generally based on the extent to which member states
notify the EU Commission of transposition measures in a timely manner. There is,
however, little knowledge about the quality of the notif‌ied measures and the extent
to which they are even relevant for the implementation of the EU directive at hand.
This is problematic because reporting measures before the deadline may not neces-
sarily mean that national authorities have fully implemented the EU requirements
and compliance problems may persist. The question that arises then is under what
conditions self-reported measures are associated with compliance problems.
To address this question, the article focuses on a particular type of implementing
instruments: domestic legal measures that a member state reported to the
Commission for the implementation of a given directive, but which entered into
force before the directive was even adopted by the EU. Member states could have
dif‌ferent incentives to report pre-existing measures. On the one hand, the estab-
lished view is that pre-existing measures ref‌lect member states’ ability to ‘upload’
their preferences during the EU decision-making stage (Kaeding, 2006; Linos,
2007; Mastenbroek, 2003). In a similar way, early measures may represent
member states’ ‘policy f‌it’ with an EU directive (Thomson et al., 2007). Based on
these assumptions, pre-existing measures are expected to increase member states’
compliance with EU law. On the other hand, research so far has not considered
that pre-existing measures are also likely to fulf‌ill only partially the compliance
requirements and member states may report them as a means to win time before an
infringement procedure escalates to later stages that involve tangible sanctions.
Specif‌ically, instead of missing the transposition deadline a member state could
notify pre-existing measures as a strategy to disguise the fact that it has not yet
(fully) transposed an EU directive and buy time to complete the transposition
process at a later point in time. Reporting pre-existing measures could also ref‌lect
the unwillingness or inability of national authorities to change their current legis-
lation to fully conform to the EU standards. These assumptions lead to the con-
trasting prediction that instead of increasing the probability of compliance,
notifying pre-existing measures is linked to actual implementation problems.
In this article, we try to disentangle these contrasting mechanisms by taking into

European Union Politics 16(3)
EU requirements, member states’ subsequent implementation measures and their
incentives to fully comply given the expected reputational costs for not doing so.
We rely on a new data set on EU directives that were adopted and had to be
transposed in the period between May 2004 and May 2010. The results suggest
that, contrary to common expectations, notifying pre-existing measures signif‌i-
cantly increases the likelihood of implementation problems and, hence, infringe-
ment cases. We f‌ind that this is particularly the case when those measures are
subsequently adjusted only after the transposition deadline has passed. We further
show that the positive relationship between early measures and non-compliance
detected by the Commission is conditional on the policy f‌it of pre-existing measures
and it ceases to exist whenever transparency in the implementation process is expli-
citly required. These f‌indings bear important implications for the usefulness of
self-reported transposition measures as indicators for compliance with the EU
directives, especially because many EU scholars focus on the earliest notif‌ied
legal instrument to estimate member states’ actual behaviour (Berglund et al.,
2006; Luetgert and Dannwolf, 2009; Thomson et al., 2007; Zhelyazkova and
Torenvlied, 2009). More substantively, we show that the EU can induce compliance
by demanding a more transparent implementation process in the member states.
Self-notified transposition of EU law and detected
Self-reported implementation measures are an important tool for signalling com-
pliance with international agreements. In particular, self-reported measures
decrease information asymmetries about states’ activities to comply with their
international obligations. However, without any external evaluation, it is not pos-
sible to know whether a government reveals truthful information or not. This
makes self-reporting informative only if a member state has incentives to comply
with its international obligations and to report correct information about its imple-
mentation activities. Instead, if the national government faces high adjustment or
political costs of complying, self-reporting may not be a useful indicator of a state’s
compliance record and national implementers could even exaggerate their imple-
menting activities. In such cases, self-reporting could be ‘cheap talk’ (Crawford and
Sobel, 1982; Gneezy, 2005), where the act of sending a signal incurs small, or no
costs on the sender and the signal could be either truthful or not. In other words, a
government could declare that it has complied with an international agreement,
while this is not the case in reality.
There could be dif‌ferent reasons why states report non-compliant implementing
measures. On the one hand, states could send such measures because they are
unable in the short run to muster the necessary resources to fully comply and
need time to fulf‌ill their obligations. By strategically sending partially relevant
measures, national governments at least signal that they have started the imple-
mentation process and, thus, could gain time to acquire suf‌f‌icient resources to fulf‌ill
their international obligations. On the other hand, governments’ implementation

Zhelyazkova and Yordanova
activities may be driven by their general willingness to conform to international
requirements. In this case, the extent to which a state government strategically
engages in ‘cheap talk’ without fully complying depends on the expected reputa-
tional losses it would incur if compliance problems were detected. Provided that
any negative consequences may take time to materialize, reporting only partially-
or non-compliant implementing measures could serve as a time-winning strategy
for short-sighted democratically elected governments to avoid the blame for non-
compliance or shift it to their successors. Even if non-compliance becomes inter-
nationally known, a wayward government may still expect low reputational losses
for agreements that its international partners do not consider very important.
In this article, we study the link between EU member states’ self-reported activ-
ities to implement European legislation and detected non-compliance by the
European Commission. The EU is a suitable case to study a state’s response to
its international obligations because national and sub-national actors are obliged
to incorporate, enforce and apply the EU adopted decisions within national...

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