Two sides of the same coin? The effect of differentiation on noncompliance with European Union law
| Author | Ronja Sczepanski,Tanja A Börzel |
| DOI | http://doi.org/10.1177/14651165221130601 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Two sides of the same coin?
The effect of differentiation
on noncompliance with
European Union law
Ronja Sczepanski
Centre for Comparative and International Studies, ETH Zurich,
Zurich, Switzerland
Tanja A Börzel
Otto Suhr Institute for Political Science, Freie Universität Berlin,
Berlin, Germany
Abstract
Noncompliance and differentiated integration are two strategies to cope with hetero-
geneity between European Union member states. This article explores the relationship
between the two strategies of coping with heterogeneity. We start from the observation
that research has linked cross-country variation in differentiated integration and non-
compliance to similar root causes—diverging preferences and differential capacity.
Addressing the same issues of heterogeneity, we hypothesize that differentiated integra-
tion is likely to reduce member states’noncompliance. In order to test this hypothesis,
we combine novel data on differentiated integration and noncompliance. We find that
differentiation increases rather than reduces the likelihood of noncompliance. We con-
clude by discussing why differentiated integration does not serve as a strategy to prevent
noncompliance.
Keywords
Compliance, differentiated integration, EU law, implementation
Corresponding author:
Ronja Sczepanski, Centre for Comparative and International Studies, ETH Zurich, Haldeneggsteig 4, 8092
Zurich, Switzerland.
Email: ronja.sczepanski@eup.gess.ethz.ch
Article
European Union Politics
2023, Vol. 24(1) 63–80
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14651165221130601
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Introduction
The European Union’s (EU) acquis communautaire has become ever more diverse in
level and scope. Amidst the growing heterogeneity of member states, differentiated inte-
gration has served as an important tool to avoid deadlock in the integration process
(Winzen, 2016). The literature has identified two main rationales underlying differen-
tiated integration in EU law: effectiveness and efficiency. At the decision-making
stage, differentiated integration allows to escape stalemate avoiding the veto of
member states with diverging preferences against further integration. During the national
implementation of a legal act, differentiated integration helps prevent noncompliance by
alleviating the costs of adaptation or granting member states with weak capacities add-
itional time to cope with the costs (Holzinger and Schimmelfennig, 2012; Leruth, 2015).
Preference-, power-, and capacity-based approaches in EU compliance research also
tackle effectiveness and efficiency focusing on heterogeneity as a major source of non-
compliance. Member states differ in their preferences for EU law, their ability to shape
EU law according to these preferences, and their capacities to comply with EU law
(König and Luetgert, 2009; Raustiala and Slaughter, 2002; Simmons, 1998; Tallberg,
2002; Weiss and Jacobson, 2000). Despite the shared focus on heterogeneity, effectiveness,
and efficiency, the literature has hardly explored the link between differentiated integration
and (non)compliance. Zhelyazkova (2014: 728) published a pioneering study on the relation
between differentiated integration and “substantive conformity with EU legislative outputs”.
By taking violations of EU law as our dependent variable, we exclude member states that
chose to avoid the costs of adapting their domestic laws to the requirements of EU law
by completely opting out rather than evading the costs by noncompliance. Moreover, by
matching two major datasets, we provide the first large-Nstudy on differentiated integration
and noncompliance. The number of cases (21,673), which cover 892 directives in 10 differ-
ent policy areas, ensure a sufficient level of generalization of our findings, on the one hand,
and allow exploring variation across both member states and policies, on the other. This is
particularly important asthe literature has foundthat policy differences matter in explaining
the demand for differentiation (Duttle et al., 2017; Winzen, 2016).
This article starts by defining our understanding of differentiated integration and identi-
fying different causes of heterogeneity that influences the granting of deviations to member
states. Then, we show how compliance theor ies conceptualize heterogeneity to explain
member state violations of EU law linking it to preferences and capacity. Based on existing
theoretical work, we hypothesize that receiving a temporary full, or a permanent or tempor-
ary partial opt-out for a given legal act should lead to a lower probability of noncompliance.
We test our hypothesis by combining the Differentiated Integration in EU Legislation
(EUDIFF2) data on differentiated integration in secondary law and the Berlin
Infringement Database (BID) on noncompliance with EU law. Contrary to our hypoth-
esis, differentiation does significantly increase member states noncompliance. This
finding, however, is only robust for some member states. Likewise, the positive effect
of differentiation on noncompliance is driven by policy areas that are predominantly
regulatory. Based on our results, we conclude that differentiation is most likely not
responsible for the decreasing levels of noncompliance in the EU in recent decades.
64 European Union Politics 24(1)
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