Why governments comply: an integrative compliance model that ...

Journal of European Public Policy 12:1 February 2005: 113–142

Why governments comply: an integrative compliance model that bridges the gap between instrumental and normative models of compliance Derek Beach

ABSTRACT Why do governments comply with costly rulings handed down by international courts? This article focuses upon governmental compliance with ECJ rulings. The argument is that we cannot explain compliance based solely upon the instrumental calculations of actors, but must also incorporate the normative dimension of law into our compliance model to explain why actors feel ‘compelled’ to follow ECJ rulings even in the absence of manifest instrumental incentives. At the same time we must not lose sight of the significant analytical insights of instrumental models. An integrative compliance model is therefore created based upon Giddens’ structuration theory which argues that both instrumental and normative concerns motivate governmental actors in their compliance calculations. The analytical value-added of the model is illustrated upon the Working Time Directive case, where the instrumental strategy of the British government was blatant noncompliance, but where the social costs of breaking what was perceived to be ‘the law’ weighed greater. The conclusions discuss the broader applicability of the integrative compliance model to broader patterns of compliance in the EU, and governmental compliance with the rulings of other international courts. KEY WORDS European Court of Justice; governmental compliance; social constructivism; Working Time Directive case.

INTRODUCTION Why do governments comply with the dictates of courts beyond their borders?1 Rulings by courts such as the European Court of Justice (ECJ) or the European Court of Human Rights often have high political and/or economic costs, whereas the sanctions present to enforce rulings are often neglible. Yet despite this asymmetry, we see general patterns of compliance with the rulings of both bodies.2 This article focuses upon explaining compliance by European Union (EU) governments with the rulings of the ECJ, which in many respects is a least-likely case for compliance as ECJ rulings often have high political and/or economic costs for governments. In the Commission v. France case (C-265/95), the ECJ Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online # 2005 Taylor & Francis Ltd http:==www.tandf.co.uk=journals DOI: 10.1080=1350176042000311934

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ruled in an infringement action brought against France that governments have an obligation to deal effectively with domestic riots that affect intra-EU trade – impinging upon what definitively can be called a key element of national sovereignty! In the Kohll and Decker cases (C-158/96, C-120/95), the ECJ ruled that national social security measures such as health care must be operated in a way that is compatible with EU law on the free movement of goods and services. The scope of the rulings was then further extended in, for example, Geraets-Smits (C-157/99). These rulings have given citizens the right to obtain reimbursement for certain health care services purchased in another member state without the prior approval of their national health care system. Yet the faithful implementation of the rulings has potentially extremely high costs for EU governments such as Denmark, as the doctrine can in theory undermine national attempts to contain health care costs by enabling citizens to avoid waiting lists and poor service in their home countries by seeking medical treatment abroad, with the bill being footed by the citizens’ own national heath care system. Existing theories in EU studies explain governmental compliance with ECJ rulings by looking at the instrumental interests of governments. The basic argument of the instrumental approach is that governments comply with ECJ rulings after having rationally weighed the instrumental costs of compliance against the potential costs of non-compliance, such as sanctions. Compliance is therefore explained by either the presence of effective sanctions to enforce ECJ rulings, or the self-interest of actors in preserving and strengthening the mutually beneficial EU legal system.3 Based upon this approach we should expect that as the instrumental costs of compliance with the rulings of the ECJ have often been very high, governments would routinely reject them. But despite several instances of blatant noncompliance, and while compliance is often incomplete and lacking, the general pattern has been one of governmental compliance and acceptance of ECJ rulings. We therefore cannot fully explain patterns of governmental compliance with ECJ rulings based upon the instrumentalist approach. While instrumental calculations are perhaps sufficient when analysing actor compliance with the rulings of traditional international courts such as the International Court of Justice,4 the level of embeddedness of EU law is much greater than normal international law. EU law has become embedded in national legal systems and is increasingly perceived to be part of the ‘law of the land’ in national legal orders, thereby also gaining a similar level of normative power over governmental authorities (Weiler 1991, 1994; Chalmers 1997, 2000; Joerges 1996; Wind 2001). When we attempt to explain compliance in cases where the costs of compliance are very high, there are instances such as the Working Time Directive case described in this article where the instrumental calculations of actors cannot solely explain compliance. In these instances there is evidence that actors have also been compelled to comply owing to the normative pull of what they perceive to be legitimate law.

D.J. Beach: Why governments comply

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To explain governmental compliance with ECJ rulings we therefore have to incorporate the normative power of the law into our explanations, while not losing sight of the significant explanatory power of instrumental explanations. What is necessary to move theoretical work on compliance in the EU forward is to attempt to create a theoretical synthesis that bridges this gap, building a theory that incorporates both a normative and an instrumental logic of action. This article presents a new integrative compliance theory that details the hypothesized causal mechanisms underlying actor compliance with ECJ rulings. Modernist social constructivism5 is used as the theoretical base line for the model, as it is uniquely poised to allow us to combine a rational, instrumental logic of action with a normative dimension based upon the interests and identities of actors which are created and re-created through processes of social interaction. The argument in this article proceeds in four steps. First, existing instrumental theories of compliance in EU studies are reviewed, showing that as they do not incorporate the normative dimension of compliance, they are unable to satisfactorily explain governmental compliance with ECJ rulings. Second, an integrative compliance model is developed using modernist social constructivism, creating a model that takes seriously the distinct normative logic of action within the legal sub-system. The model can be used to explain governmental compliance in cases where they are directly confronted with the choice of compliance/non-compliance by being a party to the case, and more indirectly when they have to decide whether to faithfully implement into national policy an ECJ decision given in a preliminary ruling to which they are not a party. Third, the analytical utility of the model is illustrated on a least-likely case of compliance. In the Working Time Directive case, the instrumental interests of the British government clearly pointed in the direction of blatant non-compliance with a pending ECJ ruling. Yet the government backed down from defying the ECJ and decided to comply with the ECJ ruling owing to the high normative costs of blatant non-compliance. The conclusions of the article discuss the implications of this model for broader patterns of compliance both across different types of judgments of the ECJ, between different countries and over time in the EU, and with the rulings of international courts such as the European Court of Human Rights. INSTRUMENTAL EXPLANATIONS OF THE PARADOX OF COMPLIANCE WITH ECJ RULINGS In the following I will first briefly review the existing literature on why governments comply with ECJ rulings, differentiating it into two basic explanations: the self-interest and the enforcement approaches.6 I then argue that even though instrumental calculations undoubtedly play a major role in explaining governmental compliance with ECJ rulings, they are not the whole story. To better explain the complex and multifaceted reality of compliance, we must in a theoretically consistent manner incorporate the normative dimension of compliance into our models.

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The self-interest approach The core of the self-interest argument is that governments comply with ECJ rulings when the benefits of compliance exceed costs. There are two variations to this argument. The first category focuses upon the instrumental benefits that governments gain from the existence of an effective EU legal system that ensures the functioning of the Internal Market, whereas the second category argues that the calculation of cost/benefits will fall out towards compliance, as the real impact of ECJ rulings is often minimal. The first category argues that the benefits of compliance for governments are greater than the costs of compliance. Garrett (1995) and Garrett, Keleman and Schultz (1998), for example, argue that while the short-term incentives for governments to not comply with a specific ruling are often high, governments rationally perceive that the long-term benefits of a functioning EU legal system safeguarding the gains of the Internal Market are greater. If this explanation is correct, we would expect that compliance with ECJ rulings should vary according to levels of intra-EU trade. While there are many significant sources of bias when analysing the statistics of non-compliance in the EU, they can be used to illustrate general trends in governmental compliance with ECJ rulings.7 Using levels of exports to other EU countries as a percentage of total exports as an indicator of the ‘benefits’ of the Internal Market for a member state, and the number of non-implemented ECJ rulings in enforcement actions brought by the Commission as an indicator of levels of governmental compliance, Table 1 shows that there is no clear correlation between the benefits of the Internal Market for a government and levels of compliance. France and the UK had comparable levels of exports to other EU countries, but substantial differences in the number of ECJ rulings not complied with.8 Whereas the Commission measured nine instances from 1998 to 2001 where the UK had not complied with an ECJ ruling after six months of its delivery, the number for France was fifty! These differences between France and the UK are even greater when we look at the severity of violations. While only two infringement actions for non-implementation of an ECJ ruling were raised against the UK during the period, the Commission opened twenty-two separate actions against France, and many of the French cases of non-compliance had persisted over many years!9 If we turn to look at three smaller economies that all had high levels of exports to other EU countries, we cannot explain the differences in levels of non-compliance with ECJ rulings between the Netherlands, Belgium and Luxembourg based solely upon the gains of the Internal Market. We need explanations that can explain why British and Dutch governments felt more compelled to comply, or were more unable to not comply with ECJ decisions than their Belgian, French and Luxembourg counterparts. The second category of self-interest explanations hypothesizes that compliance with an ECJ ruling in a particular case is relatively painless for a government, as the actual broader societal impact of a given judgment is generally low.

Table 1 Levels of export to other EU countries compared with levels of governmental non-compliance with ECJ rulings in infringement actions brought by the Commission (Article 228 EC), 1998 – 2001

Level of exports as percentage of total exports, 1998 – 2001 Number of nonimplemented ECJ rulings, 1998 – 2001

AUS

B

DK

FIN

F

GER

GR

IRE

I

LUX

NL

POR

SP

S

UK

62.5

75.2

66.5

55.8

61.9

56.4

48

63.4

56.1

85.5

80

81.4

71

56.7

57.8

0

0

50

16

37

6

40

15

13

24

1

9

2

27

4

Sources: Row 1, Eurostat 2003. Row 2, European Commission 1998, 1999, 2000, 2001, 2002. The figures in row 2 do not include the non-implementation of recently delivered decisions (within 6 months). Trade statistics for Luxembourg are for the period 1999 – 2001. Persistent violations are counted for every year that they continue.

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Conant has in a recent book put forward the claim that while the ECJ does rule in ways that are unwanted by governments, the actual impact of ECJ rulings is moderate, as national courts and executive agencies usually only apply a ruling to the dispute at hand (Conant 2002). For a ruling to have broader effects it must be actively supported and used by strongly organized societal actors and/ or public institutional actors in an active campaign to ensure that governments undertake the broader policy change necessary to faithfully implement the ruling (Conant 2002). This ‘contained compliance’ therefore significantly lowers the costs of governmental compliance with ECJ rulings. While Conant’s ‘contained compliance’ hypothesis does capture a significant element of the interaction between the ECJ and national authorities, it is only one side of the story. We are still left at odds explaining variations in levels of non-compliance across countries. Can ‘contained compliance’ explain why Belgium, France and Italy always top the charts for both number of infringement actions brought against them for non-compliance with EU law, and for delayed compliance with adverse ECJ rulings (see Table 3 below)?10 Can we plausibly argue that the real costs of compliance for these governments are higher than the costs of compliance in Denmark or the UK? Arguably the opposite is the case, as both Denmark and the UK are widely recognized for their relatively efficient and faithful implementation of EU law. The enforcement approach The enforcement approach argues that actors comply with ECJ rulings when effective sanctions are present (Tallberg 2002; Downs et al. 1996). Governments choose to not comply when the benefits of non-compliance are greater than the costs of the sanctions (Tallberg 2002: 611). Therefore we should expect that as the efficacy of sanctions for non-compliance with ECJ rulings increased in the 1990s, this should have led to higher levels of governmental compliance. While the presence of more effective sanctions since the introduction of fines in the Maastricht Treaty does account for the resolution of several long-standing cases of non-compliance with ECJ rulings in enforcement actions (Tallberg 2002: 629), it cannot account for the relatively stable level of non-compliance with ECJ rulings in comparison to the number of infringements declared by the ECJ in enforcement actions as depicted in Figure 1. Looking at Figure 1, the number of non-implemented rulings is relatively stable throughout the 1990s despite the increase in the effectiveness of ECJ sanctions. Further, there is a significant increase in levels of non-compliance in 2000–02 that reflects the increasing numbers of infringements declared by the ECJ since 2000. The data in the figure lend support to the contention that the effectiveness of sanctions does not per se explain variations in levels of non-compliance. And when we disaggregate the figures according to length of violation, most of the violations throughout the period are instances of non-implementation of rulings that are between six and twelve months old, after which the case is brought in order and terminated. Peaks in the numbers of infringements


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Figure 1 Number of non-implemented ECJ rulings in enforcement proceedings compared with the number of infringements declared by the ECJ in enforcement actions. Annual figures, 1987 – 2002. Sources: For the number of non-implemented ECJ rulings, the annual Commission reports on Monitoring the Application of Community Law from 1987 to 2002 were consulted. For figures on number of infringements declared, the General Report on the Activities of the European Union/Community was used for 1987 – 1997, and for 1998 – 2002 the Annual Reports of the Court of Justice were used.

declared are therefore quickly reflected in levels of non-implemented rulings, further supporting the contention that the efficacy of sanctions cannot explain variations in levels of non-compliance. Pointing in the other direction, however, is the slight decrease in the number of long-standing cases (þ4-yearold cases) since the introduction of more effective sanctions in the early 1990s. Further, when we disaggregate data on the number of non-implemented ECJ rulings by member states, the efficacy of sanctions hypothesis is unable to explain the cross-country variations in the figures (see Table 3). Why do Belgium, France, Greece and Italy systematically top the statistics in number of non-implemented rulings? These trends are also echoed in other noncompliance statistics such as number of cases opened, transposition rates for directives, and for the number of years in which compliance with adverse ECJ rulings is delayed (Bo¨rzel 2001; Conant 2002: 71). The so-called management school of compliance sheds some light on these cross-national variations. The basic argument in the management approach is that governments often would like to comply but either lack the material resources to effectively implement rulings, or are prevented from complying owing to domestic veto players (e.g. in federal systems) (Tallberg 2002; Underdal 1998). But when tested empirically, Bo¨rzel et al. find that the management school has little explanatory power in explaining these cross-country

Table 2 Number of non-implemented ECJ rulings in enforcement actions broken down by length of violation in period 1987 –2002 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 Total 6– 12 mths 2– 3 yrs 3– 4 yrs þ4 yrs

35 8 3 6

46 16 7 11

35 20 11 11

18 15 15 16

41 9 13 20

40 10 5 21

28 21 6 11

32 11 16 13

32 9 7 23

30 11 6 23

31 7 8 19

31 6 3 18

38 6 2 11

Source: Annual Commission reports on Monitoring the Application of Community Law from 1987 to 2002.

43 10 3 8

37 17 6 5

68 14 7 11

585 190 118 227

Table 3 Number of non-implemented ECJ rulings in enforcement actions broken down by member state, 1987 –2002 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 AUS B DK FIN F GER GR IRE I LUX NL P SP S UK Total

Total

6

0 14 0 0 9 5 10 0 14 2 3 0 8 0 6

0 12 0 0 9 6 11 6 14 3 2 0 3 0 4

0 18 0 0 10 6 9 2 10 2 1 0 3 0 4

0 8 0 0 7 2 10 1 10 2 1 4 9 0 4

0 6 0 0 10 5 9 1 7 4 1 5 7 0 2

0 6 0 0 16 6 9 3 11 6 1 1 4 0 1

2 7 0 0 17 3 9 1 12 3 1 3 4 1 2

4 8 0 1 22 6 12 5 20 6 2 3 5 1 5

6 190 5 1 156 112 122 33 296 40 38 16 55 2 47

72

71

70

65

58

57

64

65

100

1119

9 1

15 2

11 1

12 0

17 0

14 0

16 1

17 0

5 7 2 1 23

5 10 4 2 36

6 11 8 0 35

5 8 4 2 27

2

4

3

5

10 11 8 2 29 1 4 0 0

8 12 8 1 20 2 4 0 3

8 9 5 3 13 3 4 0 2

9 5 4 3 15 6 0 0 7

2

2

1

1

1

4

2

52

80

76

64

83

76

66

Source: Annual Commission reports on Monitoring the Application of Community Law from 1987 to 2002.

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variations, either in terms of the relative wealth of countries or by the number of veto players in the relevant political system (Bo¨rzel et al. 2003). How can we explain why some governments systematically do not comply with EU law, whereas others make extraordinary efforts to comply? The need to incorporate the normative dimension of law into explanations of compliance To understand governmental compliance with ECJ rulings we have to look beyond purely utilitarian, instrumental actor motivations to include the normative power of law as an element of actor interests and identities. If we turn for a moment to look at compliance with law in domestic legal systems, while there are (often) effective mechanisms to enforce national laws, even here we cannot explain actor compliance based solely upon the threat of sanctions or the promise of material benefits (Hart 1961; Shapiro 1981: 13– 15). While most people choose not to rob banks, we abstain from doing so not only because we rationally weigh the expected take-in versus the risk of going to jail, but also because we are socialized to believe that bank robbing is an ‘immoral’ and ‘illegal’ action. Explaining compliance based solely upon instrumental actor interests is even more problematic in the case of the EU, where effective sanction mechanisms are seldom in place, and the short-term political and economic ‘costs’ of compliance are often very large for governments (Checkel 2001; Wind 2001). While compliance with EU law in cases where it is enforced by a national court is relatively easy to explain, it is more difficult to explain compliance in cases that pit the ECJ directly against governments, and where the short-term economic and/ or political costs of compliance for governments with an adverse ruling are far greater than the long-term, often diffuse instrumental ‘benefits’ of compliance, such as not damaging the EU legal system that protects the functioning of the Internal Market (e.g. see below in the Working Time Directive case). Revealingly, many recent instrumentalist studies of the ECJ have found it necessary to mention the normative power of law as an ad hoc explanation in their attempts to account for governmental compliance. Alter discusses the domestic norms that protect national courts from governmental pressure to not comply with an ECJ ruling (e.g. Alter 2001: 194). Tallberg names factors such as ‘social pressure’ and ‘social costs’ as reasons why governments comply with EU law (Tallberg 2002: 614, 618). But neither author develops a theoretically coherent model that incorporates these normative motivations into their instrumental models. To explain compliance we have to incorporate the normative dimension of law into our model to explain why actors feel ‘compelled’ to follow EU law even in the absence of manifest instrumental incentives. Crucially, EU law has over time developed a normative dimension that in many respects is analogous to the normative pull of domestic law upon actor behaviour (Chalmers 1997, 2000; Weiler 1991, 1994; Wind 2001). This normative dimension of


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law ‘sets the standards and the forms of knowledge which will be used to adjudge whether a particular course of conduct is appropriate’ (Chalmers 2000: 16). Yet while taking account of the normative dimension of law, we must not at the same time lose sight of the significant analytical utility of actor-based, instrumentalist approaches. It is to this task that we now turn. AN INTEGRATIVE MODEL OF COMPLIANCE WITH ECJ RULINGS Using modernist social constructivism, I develop in the following an integrative compliance model that combines logics of instrumental and normative action into a single, logically consistent model. Hypotheses are then developed that detail the impact that the two types of motivations have upon governmental compliance calculations in specific cases. The argument is that when legal systems are created, they are based solely upon the instrumental interests of actors. Through processes of social interaction, normative prescriptions for complying with what is legitimately perceived as ‘the law’ are created and internalized by actors. These prescriptions then constitute a normative logic of action that supplements the instrumental motivations of actors. How then does EU law as a social institution become internalized by political actors, creating a normative logic of action that can compel actors to comply even when their instrumental interests point towards non-compliance? Modernist social constructivism offers the promise of squaring the circle by allowing us to incorporate a normative logic of action into a model that does not lose sight of the insights of instrumental models.11 Unfortunately, most existing social constructivist studies tend to become so focused upon demonstrating the valueadded of normative motivations that they neglect the instrumental aspects of actor motivations. In order to avoid this pitfall, I develop clear hypotheses in the following that detail both the normative and instrumental motivations for compliance, and the scope conditions for when the different types of motivations matter. The following discussion is based upon the theoretical foundations of modernist social constructivism; most prominently the works of the integrative sociologist Anthony Giddens. Arguing against purely individualist, rationalchoice based theories that reduce actor motivations to purely instrumental interests, Giddens points out that social institutions such as law are originally created by actors based upon functional, instrumental interests, but then subsequently form a ‘frame’ for future actor interaction, prescribing what types of future actions are acceptable (Giddens 1984). Social institutions are created and re-created by agent action in a dialectic social process of ‘structuration’. Looking at law as a social institution, when originally created a law naturally reflects the instrumental interests of actors, but over time, through actor participation and interaction with the legal system, compliance becomes an internalized social practice that makes normative prescriptions for acceptable behaviour, thereby also making behavioural claims upon actors that cannot

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simply be reduced to the instrumental interests of actors. Importantly, actors still maintain a degree of agency, as they act based both upon these normative ‘frames’, or institutionalized social practices, and their ‘rational’, instrumental interests (Giddens 1976, 1984; Sewell 1992; Cohen 1989). Therefore, the social construction of the normative power of law is not an ever-increasing process, but can be stopped and/or reversed by purposive action by actors. Further, the pull of normative concerns varies across issues and over time, and never completely determines actor behaviour, as it does in more structural approaches. The normative dimension of action included in my model is based upon the theory of structuration. EU law is seen to have been originally created to fulfil the functional, instrumental needs of member state governments – primarily ensuring the credibility of interstate commitments. Over time, however, the perceptions of political actors regarding EU law have been reconstructed through their interactions with and participation in EU and domestic legal systems. EU law has thereby become embedded within the national legal system, and political actors in many instances perceive aspects of EU law as a legitimate form of law analogous to domestic law, with a similar level of normative power. This process of embedment has not only reflected their instrumental interests in, for example, ensuring the effective functioning of the Internal Market, but also involves the internalization of a normative dimension of EU law, where normative concerns such as ‘rule of law’ and ‘government under law’ are central. When a ruling of the ECJ is then accepted by political actors as being legitimate and part of the ‘law of the land’, their compliance with the ruling is not solely based upon their instrumental calculations, but also involves normative concerns such as the social costs of being seen to be breaking the law. These social dynamics can, for example, be observed in the Danish case. During the first fifteen years of Danish European Community (EC) membership, the Danish legal profession saw EC law as a somewhat ‘exotic’ field with little importance for the Danish legal system (Hagel-Sørensen 1994: 114– 21). During this formative period EC law had little normative power over political actors, indicated by the often blatant non-compliance by Danish governments with EC law, and the lack of use of EC law before national courts. As knowledge of key doctrines of EC law spread over time, Danish lawyers, judges and politicians have come to accept EC law as part of the ‘law of the land’, with a similar level of normative power to domestic Danish law. This shift in perceptions at the political level was clearly illustrated in the early 1990s. While Conservative-led governments in the 1980s blatantly violated EC public procurement law by buying Danish, the full size of the shift in perceptions of EC law became clear in the aftermath of the Great Belt case (C-243/89), which dealt with Danish preference clauses in public contracts in the construction of the Great Belt bridge. During the enforcement action brought against Denmark by the Commission, the new Social Democrat-led government accepted that they could no longer legally promote employment through Danish preference clauses in public work contracts. What had changed between the 1980s and early 1990s was not the ‘rational’ instrumental interests


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of Danish governments. Danish governments did not, for example, have stronger material interests in gaining access for Danish firms to other public markets in the EU, or have lower interests in using public contracts to promote employment. Indeed, the new Social Democratic government in 1993 had arguably greater interests in promoting employment using public contracts than the previous Conservative government. The key change was the change in perceptions among Danish politicians and lawyers of the legitimacy of EC law and the illegality of the Danish preference clauses under EC law. Increasingly, Danish politicians and lawyers viewed EC law and the rulings of the ECJ as a part of the ‘law of the land’ in Denmark (Hagel-Sørensen 1994: 122– 4). Similar trends are seen in other member states. In the UK, for instance, politicians took little interest in Community law and ECJ judgments in the early years of UK membership (Nicol 2001: 176), and EC law was not embedded in the UK legal system. However, over the years perceptions gradually changed, first in the legal system and later in the political system. By 1990 an otherwise Eurosceptical UK government had accepted the rulings of the ECJ as legitimate law, even in controversial cases that impinged on key aspects of national sovereignty, such as the supremacy of the British Parliament in the Factortame I case (C-213/89) (Nicol 2001: 189). The theoretical challenge is, of course, to explain when different logics of action apply. When is a government most affected by the normative pull of law, and when does the government act primarily based upon instrumental self-interest? While a fully inclusive answer to this question would require solving the actor– structure problem, which has become a sociological holy grail, it is possible to develop a mid-range theory that specifies empirically measurable scope conditions for which logic of behaviour will dominate in a given decisional situation. An integrative model of compliance with ECJ rulings The integrative compliance model is designed to model how governmental decision-makers weigh the costs and benefits of complying with an ECJ ruling or not. The model can be used to analyse both: (1) ‘direct’ compliance in an enforcement action before the ECJ, where the government is the offending party in the case and must choose whether to implement the ECJ’s ruling or not; (2) ‘direct’ compliance in a preliminary reference case, where national authorities are a direct party to the ECJ case that has been referred by a national court; and (3) ‘indirect’ compliance with a preliminary reference ruling handed down by the ECJ in a case to which the government is not a party, and where a government must choose whether to undertake the necessary legislative and/or administrative reforms to faithfully implement the ruling. Governmental authorities rationally weigh the perceived instrumental and normative costs of compliance with those of non-compliance. Actors are still wilful agents, and can choose non-compliance even in a case where there is a strong normative pull towards compliance, but they do not exist independently from their social environment (Risse 2000: 5).

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The relationship between instrumental and normative logics of action is viewed as continuum where compliance is often based upon both instrumental and normative motivations (Figure 2). The relative weight of the two motivations is hypothesized to vary according to the factors given in Table 4. In some cases, compliance will be solely explained based upon instrumental actions (the far left position in Figure 2), whereas in other situations normative motivations also have an impact, but these will never fully determine actor actions. The area of application of the integrative compliance model is indicated by the shaded area in Figure 2. In my view we should not stray too far towards the normative pole in explaining compliance. If we explain compliance solely based upon normative motivations, we risk creating a theoretical model where actor agency disappears and is replaced by the determining impact of structure. One example of the theoretical consequences of purely normative explanations is March and Olsen’s ‘logic of appropriateness’ (LoA) (March and Olsen 1989, 1998). In the LoA, compliance with the law is an internalized duty and an obligation which actors are assumed to act in accordance with. But as persuasively argued by Sending, actors have no real choice regarding whether to act ‘appropriately’ or not, and agency disappears and is replaced by a deterministic and structural normative imperative (Sending 2002). The value-added of the integrative compliance model is that it combines an individualistic, means/end conception of action with the idea that normative motivations are created and re-created by actors. Compliance is not based solely on either instrumental or normative logics of actions. Normative motivations regarding compliance with ‘the law’ gradually become embedded in the political system through processes of social interaction, changing the cost/benefit calculations of actors, but they never fully determine choices regarding compliance. Table 4 illustrates the hypotheses regarding what factors determine the relative weight of instrumental and normative motivations in actor compliance calculations in a specific case. The instrumental costs of compliance for governments, or the domestic material impact of a ruling, depend upon: (1) the domestic distribution of costs and benefits; (2) the level of organization of relevant domestic interest organizations (Underdal 1998: 12; Alter 2000: 511); and (3) the level of

Figure 2 Range of application of the integrative compliance model.


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Table 4 Explaining actor compliance – an integrative compliance model Compliance with an ECJ ruling varies according to: Governmental calculations Instrumental costs of compliance

1 domestic impact of the ruling

Normative costs of compliance

1 level of conflict of ECJ ruling with key domestic norms

Instrumental costs of non-compliance

1 benefits of state from effective EU legal system 2 risk of sanctions

Normative costs of non-compliance

1 level of acceptance among political e´lites of the given part of EU law as part of the law of the land 2 level of acceptance of EU law in general in the polity 3 level of respect for the ‘rule of law’ in the political system 4 level of visibility of the potential violation

conformity of domestic law with the given part of EU law (Tallberg 2002: 627; Underdal 1998: 12). Economic impact is based upon the size of the affected sector(s) and their political importance, whereas the social impact depends on the political importance of the affected group(s). Some cases have very clear and well-publicized costs for member states, making compliance more difficult, whereas other cases are cloaked by the ‘mask of law’, where the full implications sometimes become apparent only many years later (Burley and Mattli 1993; Chalmers 2000; Beach 2001: 74). Other things being equal, we would expect that the greater the instrumental costs of compliance in a given situation are for a government, the more likely the government will decide to not comply. Both the ECJ and the member states can lessen the domestic impact of specific rulings. The ECJ can limit both the scope and the application of a ruling to reduce its domestic impact; for instance, by making prospective judgments, ruling that actors are not liable for past misdoings as the ECJ did in Defrenne II (Case 43/75), thereby making it easier for governments to comply with the ECJ’s ruling (Hartley 2003: 82– 3). Member state governments also have means whereby they can limit the domestic impacts of rulings; for example, by buying out plaintiffs in cases regarding state liability before national courts to ensure that no domestic precedent of liability is set (Beach 2001: 162). The normative costs of compliance for governments vary according to whether the given ECJ ruling conflicts with key domestic norms. Examples of strong domestic norms include the welfare state in the Nordic member states, or equality between men and women in Germany, the Netherlands and the Nordics. While the relative strengths of key norms and their impact upon actor calculations are very difficult to measure, and almost impossible to fully predict prior to a ruling, the strength of this variable can often be measured by looking at the statements and actions of key actors in the aftermath of a ruling.

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An example of a ruling that conflicted with a key domestic norm in several member states was the ECJ’s ruling in the Kalanke case (C-450/93). In Kalanke, the ECJ found in a preliminary reference case that a positive action scheme for promoting equal opportunity in hiring practices in the German Land of Bremen was not compatible with EU law. While the actual case at hand was decided by the referring Bremen court, the strong negative reaction to the interpretation of EU law by the ECJ from German, Dutch and Swedish politicians clearly indicated that Kalanke clashed with key domestic norms, and that these national authorities would be very reluctant to faithfully incorporate the necessary changes in national legislation (Beach 2001: 143– 4). In Germany, the Bremen Senator for Women went so far as to say that the ruling would call into question German acceptance of EU institutions (Financial Times, 18 October 1995, p. 16). The instrumental costs of non-compliance can be differentiated into sticks and carrots. The stick is the risk of sanctions, such as fines under the enforcement procedure in Article 228 EC, or the sanctions available to a national court against a government if the case is one brought through the preliminary reference procedure or in another type of case involving EU law before a national court. The efficacy of the ‘stick’ is a function of the size of the potential sanctions, and the perceived probability of detection and prosecution of the infringement (Tallberg 2002). The ‘carrot’ is the risk of weakening the EU legal system which ensures the functioning of the Internal Market (Garrett 1992, 1995; Garrett et al. 1998). The strength of this self-interest can be taken as a function of the gains that the government perceives they have from participating in a functioning Internal Market. We should expect higher levels of compliance when there are more effective sanctions, especially when the case is decided by a national court, and when governments have strong interests in the Internal Market. The normative costs of non-compliance, or the ‘social sanctions’ for noncompliance (Checkel 2001: 558), are a function of: (1) the political elite’s level of acceptance of the relevant part of EU law as part of the ‘law of the land’; (2) the level of acceptance of EU law in the polity; (3) the general level of respect for the rule of law in the given polity; and (4) the level of visibility of the potential violation. First, the legitimacy of an ECJ ruling is dependent upon whether the national political e´lites perceive that the ruling is legitimate law, or is seen as a product of ‘judicial creativity’ (Mattli and Slaughter 1998). When a given ECJ ruling is widely perceived in the national legal order to be faithful to the methodological constraints of legal process and substantive legal doctrine, the ECJ ruling gains procedural legitimacy, thereby also making it more difficult to ignore (Burley and Mattli 1993: 44, 73; Mattli and Slaughter 1998; Tyler 1990). For example, in an informal European Council Summit in Noordwijk, Netherlands, in May 1997, governments expressed concern about some recent judgments that they saw to be the result of judicial creativity, and not the result of proper legal reasoning.


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Second, the acceptance of a specific ruling is closely linked with the strength of the acceptance of EU law in general, and particularly the supremacy doctrine, among national e´lites. Through social processes of interaction with the EU and domestic legal systems, political e´lites gradually come to accept EU law as part of the law of the land. But this is not an ever-increasing process, and can be negatively affected by, for example, particularly controversial rulings by the ECJ. Acceptance varies both over time and across countries.12 In the UK, for instance, while national courts had accepted the supremacy of Community law for some time, the high-profile decision by the House of Lords in the Factortame I case (C-213/89) to suspend an Act of Parliament was a shock for most political actors, indicating that prior to the ruling there was a relatively low level of embeddedness of Community law in the UK political system (Beach 2001: 58). Nevertheless, after sharp debates in the Commons on the ruling, most political actors came to accept that Community law is supreme to British law (Nicol 2001).13 Further, the level of acceptance of EU law often varies domestically along party lines. In the UK there has been a greater acceptance of the legitimacy of EU law in the Labour Party than among Conservatives (Nicol 2001). Third, the strength of the rule of law norm in the domestic polity matters (Mattli and Slaughter 1998). While all of the member states in the EU are democratic states based upon the rule of law, the strength of this norm varies considerably across countries. Countries such as Denmark and the United Kingdom have strong norms regarding governmental compliance with what is perceived as ‘the law’ (Hagel-Sørensen 1994; Barnard and Greaves 1994). Finally, the fourth factor relates to the level of visibility of the particular case. The normative costs of non-compliance are much higher for a government in a highly publicized case where the government is directly pitted against the ECJ, whereas the social costs are often negligible in more ‘indirect’ cases, where a government must decide whether to implement the implications of a preliminary ruling given in a case involving a national court in another member state. In cases of direct compliance that reach the headlines, like the Working Time Directive case (C-84/94) (see below) and the Sheepmeat cases (C-232/78, 24 and C-97/80R), the normative costs of governmental non-compliance are considerable, as governments generally do not like to have their sins trumpeted on the front pages of the Financial Times or Le Monde. As with the normative costs of compliance, the social costs of noncompliance can be very difficult to measure empirically. One method of creating a measure of the social costs of non-compliance can be to undertake interviews with political e´lites in the member state, attempting to measure the level of acceptance of key EU doctrines such as supremacy among key actors. It is important that questions are framed in a manner that avoids ‘politically correct’ answers, with actors replying, for example, ‘of course we obey the law’. For example, questions can be asked on whether they would accept that an insignificant EU regulation can trump the national constitution. Other methods to measure the social costs of non-compliance are looking at the

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speeches of politicians in parliamentary debates on how they perceive key EU legal doctrines, or by looking at the reasons that actors give for compliance/ non-compliance (Hurd 1999: 391). While all of these measures will always have a strong subjective element, they can give indications about the relative strength of the normative costs of non-compliance among decision-makers. But, unfortunately, while some research exists on how national judges perceive EU law, to my knowledge no research has been undertaken on the level of acceptance by national political e´lites of EU law. In the case analysed below, interviews were conducted that attempted to measure the relative strength of the acceptance of EU law in the UK generally and in the particular case. Futhermore, the cabinet meeting minutes indicate that ministers and civil servants expressed strong concerns about taking what they perceived to be a blatantly illegal action. A DEMONSTRATION OF THE UTILITY OF THE INTEGRATIVE COMPLIANCE MODEL – THE WORKING TIME DIRECTIVE CASE (C-84/94) The utility of the integrative compliance model is demonstrated in the following on a least-likely case of governmental compliance that cannot be explained using purely instrumental models of compliance. While governmental compliance in cases brought before national courts is relatively easy to explain, the Working Time Directive case dealt with a direct conflict between the ECJ and the UK government.14 In the case, the instrumental costs of compliance, which included the very real risk of the downfall of the British government, were much higher than the potential instrumental sanctions. We should therefore have expected that the rational course for the British government would have been blatant non-compliance. Yet the government decided not to defy the ECJ. Why? The spring of discontent – potential British rebellion in the Working Time Directive case The Working Time Directive case (C-84/94) dealt with a British challenge to the legality of a directive enacted under ex-Article 118a EC,15 which was one of the social policy articles inserted into the EC Treaty by the Single European Act. Prior to its amendment in the Amsterdam Treaty, it dealt with encouraging improvements in the health and safety of workers, especially relating to their working environment. Voting under the article was to be by qualified majority (QMV). The Thatcher and Major governments felt that the social policy provisions in ex-Article 118a EC had a very narrow scope, dealing exclusively with the health and safety of workers, and that broader measures should therefore be enacted under other provisions: either articles such as Article 308 EC (ex-Article 235 EC) which required unanimity; or under the Social Policy Agreement in the Treaty on European Union (TEU), which excluded the UK (Rhodes 1995: 97 – 8; Pollack 2003: 330).


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In order to avoid the prospect that EC-level social policy adopted under the Social Policy Agreement would create a two-tiered system, the Commission with the support of several member states attempted to push forward social policy initiatives within the EC Treaty framework by playing a creative ‘legal base game’ (Rhodes 1995). One example of this was the Working Time Directive (93/104/EC), which dealt with maximum weekly working times and minimum periods of rest. The Commission combined conditions of employment with health and safety entitlements in the directive proposal to enable the legal base of the proposal to come under ex-Article 118a EC, allowing the directive to be adopted by QMV. The UK, prevented from vetoing the directive by the choice of legal base, started an annulment action against the directive before the ECJ, with the primary argument being that the directive dealt with the terms and conditions of employment, and not the health and safety of workers. The UK argued that ex-Article 118a EC had a narrow scope, and that the correct legal base for the directive should have been Article 94 or 308 EC (ex-Articles 100 and 235 EC). The opinion of the Advocate General and the threat of British rebellion Advocate General Le´ger stated in his opinion in the case in March 1996 that the UK annulment action should be dismissed in its entirety, arguing vigorously for a broad interpretation of ex-Article 118a EC. This opinion, and the likely prospect that the Court’s ruling would follow the Advocate General’s reasoning, provoked a strong reaction from the British government. The Ministerial Committee on Defence and Overseas Policy (DOP) met at the end of May.16 This was during the first flush of the BSE crisis, where the UK was blocking legislation in the Council in protest over the beef export ban imposed on the UK. Another factor that affected the government’s deliberations were the ECJ rulings in a series of sensitive cases in the mid-1990s against the British government, with the most contentious case being the March 1996 ruling where the British government was deemed to be liable for the damages incurred by a group of Spanish fishermen being denied access to British fishing waters (Factortame III, Joined Cases C-46, 48/93). In response to these judgments, Eurosceptics within the Conservative Party called for aggressive actions to curb the ECJ, including blatant defiance of ECJ rulings (Nicol 2001: 219– 20). In this charged atmosphere the DOP discussed whether the government should comply with an ECJ ruling that followed the Advocate General’s opinion, which was seen as very likely. Cabinet ministers in the meeting discussed three strategies. The first strategy was to accept an adverse decision by the ECJ and subsequently implement the directive. The two other strategies dealt with ways of getting round an adverse decision. One was to accept the ECJ decision, but attempt to get round it by negotiating with the other member states in the ongoing Intergovernmental Conference (IGC) to change voting in ex-Article 118a EC to unanimity, and by agreeing in the Council to change the legal base of the Working Time

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Directive to the Social Policy Agreement, thereby excluding the UK. The third, and most drastic, option was to unilaterally defy the ECJ’s decision by publicly refusing to implement the directive – an action not taken since France’s blatant defiance of the ECJ in the Sheepmeat cases in 1979– 80. An alliance of Eurosceptics and traditional moderates in the cabinet committee agreed on the third option, in effect deciding to break the law. There were also suggestions that the policy of non-co-operation in the Council on beef should also be extended to cover a successful resolution of the working time issue. The DOP committee met again in June after the Florence European Council Summit, in which the BSE crisis had been defused. The committee in the meeting decided to retreat from its previous decision, and decided to take the second strategy of attempting to change ex-Article 118a EC and the Working Time Directive. In the meantime, the government would obey ‘the law’ and begin the process of implementation, but would delay the actual implementation of the directive into national legislation until after the upcoming elections. The ECJ decision on 12 November 1996 broadly followed the Advocate General’s opinion, with the exception that it annulled the second sentence of article 5 of the directive. The compliance equation for the British government Why did the British government retreat from its previous decision on blatant unilateral defiance and (partially) comply with the ECJ ruling when the instrumental side of the compliance equation pointed clearly in the direction of non-compliance?17 The instrumental costs of compliance were both the economic costs of implementing the directive in the UK, which were estimated at approximately £1.9 billion/year (House of Commons 1998: 22 –3), and the political costs of the potential downfall of the Major government. While the economic costs were high, the most pressing problem for the Major government was the precarious political situation it was in. Throughout 1996 its parliamentary majority was gradually reduced to one Member of Parliament. This forced the government to rely increasingly upon Eurosceptic backbenchers, who demanded a combative stance against the EU, and particularly the ECJ.18 Conservative Eurosceptics had even introduced a bill in April 1996 to Parliament to attempt to reassert the primacy of British law over EU law.19 The bill was only narrowly defeated in the House of Commons (Beach 2001: 100). Therefore, the prospect of implementing the Working Time Directive after an adverse ECJ ruling, and in the run-up to the coming general election, raised the very real potential of a serious conflict with the Eurosceptic wing of the Conservative Party, and many in the government believed that the fall of the government was a likely result. Further, the normative costs of compliance were very high. Acceptance of the Working Time Directive conflicted with the core of Conservative policies in


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the 1980s and 1990s. Liberal social and employment policies had been at the heart of the Conservative agenda ever since Thatcher came to power in 1979. The Conservatives believed that labour markets function most efficiently with a minimum of state intervention. This agenda led both the Thatcher and Major governments to oppose vigorously further social policy integration in the 1990– 91 IGC that enacted the Treaty of Maastricht, and they secured the subsequent British opt-out from the Social Policy Agreement. The Major government believed that it had therefore achieved an effective opt-out from EC-level social policy, and felt betrayed by the other member states and the Commission when ex-Article 118a EC was used as the legal base for what was perceived to be a social policy directive. Additionally, the Major government argued that the Working Time Directive was only the ‘thin end of the wedge’, and that further social policy measures were under way, and that it was ‘what is coming down that pipeline that would be so damaging to us’. Therefore, the British government believed that it had to ‘stand on principle and to insist that, as was agreed at Maastricht, those are matters that should be decided by us and not by Brussels’ (Commons Hansard Text, 12 November 1996: column 159). The instrumental costs of non-compliance were perceived to be relatively low by the government. In the DOP meeting at the end of May, ministers were advised by their legal officers that they had no choice but to implement the directive if the legal challenge before the ECJ failed. Two main reasons were given. First, the UK risked an enforcement action brought by the Commission for nonimplementation of the directive. The second reason given was that the government in the event of non-implementation after the date prescribed by the directive would also be liable in British courts for costs incurred by individuals under the Francovich principle of governmental liability for non-implementation. But despite these instrumental costs of non-compliance, the ministers decided in the first meeting unilaterally to defy the pending ECJ ruling by publicly refusing to implement the directive. And the government did have ways in which it could ensure that the costs of non-compliance before national courts were not high, including buying out plaintiffs in cases prior to the creation of a precedent that they could be applied more generally (see Beach 2001: 162). Moreover, in the later decision to comply in June, the government had to weigh the theoretical long-term instrumental costs of non-compliance with the concrete short-term costs of compliance, including the very real risk of the downfall of the government! To explain British compliance we have to turn our attention towards the hypothesis on the size of the perceived normative costs of non-compliance. By blatantly not implementing an ECJ ruling on the legality of the Working Time Directive, the British government would be very publicly breaking what was widely perceived to be ‘the law’, going against a deep-rooted British tradition that governments are subject to the rule of law. In addition, the government would not only be violating EU law, but also the Act of Parliament which incorporates EU law into national law (the European Communities Act of 1972). The legal officers of the cabinet would, for example, not have accepted such a

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blatantly illegal decision, and there is evidence that they would have resigned en masse in protest against such a decision (personal interviews, legal officials of the cabinet). Advocates of instrumental models would argue that this interpretation of events is incorrect, and that explaining the outcome of the case is merely a matter of correctly defining the instrumental interests of the British government. One factor that could potentially change the balance of the compliance equation was the ability of the British government to lower the domestic instrumental costs of the ruling by, for example, buying out plaintiffs before precedents of liability were set in national court cases. But while the government did, for example, lower the economic costs by delaying the implementation of the directive, the government could not lower the political costs of the ruling, which as seen above included the potential downfall of the government. In addition, with any other plausible valuation of the costs of compliance versus non-compliance, we still cannot explain British compliance by solely basing our explanation on the instrumental interests of actors. Furthermore, we are at odds explaining why the British government chose compliance in the Working Time Directive case with a legal decision taken at the EU level, whereas at the same time it chose to politically defy the other fourteen member states by blocking work in the Council in protest against the BSE decision taken by the Council. The political costs of the British defiance in the BSE crisis were considerable for the government, destroying any credibility and goodwill that the Conservative government had among its European partners. Revealingly, while the UK government in the BSE crisis chose political defiance, the government also here refrained from legal defiance (Neyer 2000). Instead of choosing an illegal course of action such as blatantly flouting the export ban, as France did by maintaining an import ban in the first Sheepmeat case in 1979 (C-232/78), the UK acknowledged its acceptance of EU law by challenging the export ban in an annulment action brought before the ECJ.20 In the words of Neyer, ‘The parallelism of open political opposition on the one hand and adherence to legal procedures on the other indicates that even in cases of antagonistic interests the legitimacy of the European legal system as the basis of member state co-operation is ultimately undisputed’ (Neyer 2000: 13). The crucial difference is that while the British actions in the BSE crisis were within the political realm dictated purely by logics of instrumental action, governmental calculations in the Working Time Directive and in the BSE cases were also influenced by normative logics of action within the legal sphere, where noncompliance with ECJ rulings and EU law were perceived to be illegal actions with high normative costs. While blatant non-compliance was seriously considered in the Working Time Directive case, the government backed down in the face of the extremely high normative costs of being seen to be blatantly and publicly breaking the law. These normative costs led the British government to accept the expected adverse ruling despite the very high political costs in doing so. But the government was also a wilful agent, and the government could have chosen to follow the path of non-compliance as the DOP had done in May.


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CONCLUSIONS This article has argued that we can only explain governmental compliance with ECJ rulings by bridging the gap between instrumental and normative approaches to create an integrative model of compliance. By taking seriously the distinctive characteristics of the legal system,21 and the social dynamics of its interaction with the political system, we can incorporate a normative logic of compliance into an actor-centred, ‘rationalist’ model using structuration theory. Actors are seen as wilful agents, but they do not exist independently from their social environment. Compliance calculations are therefore based upon both the instrumental and normative interests of actors. After having demonstrated the insufficiencies of purely instrumental approaches in section 2, the relationship between the two logics was developed in the theoretical discussion in section 3. An integrative model of compliance was developed that argues that compliance calculations are based both upon instrumental and normative motivations. Hypotheses were developed that detailed the relative weight of instrumental and normative motivations in actor compliance calculations. The analytical value-added of the model was then demonstrated upon a leastlikely case for compliance. In the Working Time Directive case, the instrumental interests of the British government clearly pointed towards non-compliance with a pending ECJ ruling, as compliance was predicted to have serious parliamentary consequences, and could realistically have led to it losing its parliamentary majority. These instrumental costs of compliance overwhelmed the potential instrumental sanctions for non-compliance, such as liability before national courts. Yet the government backed down from a prior decision to defy the ECJ, and decided to accept the pending ECJ ruling. The normative costs of non-compliance tipped the compliance calculation of the government towards compliance, as key officials in the government perceived that blatant defiance of the ECJ was an illegal action and was against the rule of law. By incorporating the normative dimension of compliance with law into our compliance models, we are able to explain compliance in situations where the instrumental interests of actors should have led to non-compliance, but where they chose compliance based upon normative concerns such as obeying ‘the law’. Turning to look at the broader applications of the integrative compliance model, it can be used to explain patterns of compliance and non-compliance with ECJ rulings in the EU and with the rulings of other international courts. Looking first at the EU, based upon my model, we should expect variations in compliance according to: (1) the type of case before the ECJ; (2) the country involved; and (3) varying levels of compliance over time. First, we should expect greater levels of compliance in cases where governments are directly confronted with the question of compliance/non-compliance. In cases involving enforcement actions brought against member states by the Commission, and in cases before national courts to which national authorities are a part, non-compliance is highly visible. Based upon the model,

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we should especially expect that levels of compliance would be very high in cases involving enforcement of EU law and ECJ rulings by national courts. In preliminary ruling cases, while the ECJ rules on matters of interpreting EU law, it is the national court in question that rules on the matter at hand, i.e. whether the relevant national authority has broken the law, and what actions should be taken. Further, most of the enforcement of EU law is done by national courts in more routine cases where national courts apply existing principles of EU law to the case at hand. As is widely accepted in the literature on judicial integration, once national courts accepted key doctrines of EU law and began enforcing EU law and the rulings of the ECJ within their jurisdictions, this both allowed the ECJ to ‘borrow’ the legitimacy of national courts (Alter 1996, 1998, 2001; Mattli and Slaughter 1998) and also enabled EU law to be enforced with the sanctions available to national courts under national law, in effect giving the ECJ ‘teeth’ (Beach 2001: 293). The enforcement of EU law is much more effective through national courts, for while a national government might openly defy an ECJ ruling, it is almost unthinkable in most member states that a government will blatantly flout the decision of one of its own courts (Alter 1996, 2001). This picture of compliance is different when we look at cases involving ‘indirect’ compliance, where governments have to implement the broader implications of an ECJ ruling into national policy through legislative and administrative measures. Here we should expect much lower levels of compliance, echoing the findings of Conant (2002). In these cases, the compliance calculation will more often tip towards non-compliance. Further, the social costs of non-compliance are often much lower in ‘indirect’ cases than in the more direct confrontations between the ECJ and governments. First, governments are sometimes not even aware of their non-compliance, as the ECJ gives hundreds of preliminary rulings every year, and the full implications of rulings are often cloaked in the seemingly total insignificance of many cases, surfacing only years later when a creative lawyer draws upon a principle in a specific case (Beach 2001: 74). Second, few cases of indirect compliance become visible, as for instance the Commission does not have the resources to monitor effectively whether all of the principles in different ECJ rulings are faithfully implemented in all member states. As argued by Conant, it is often only when a broad coalition of interested actors supports the principle, and actively uses it in waves of litigation before national courts, that the broader implications of ECJ rulings are correctly implemented (Conant 2002). Turning to look at broader patterns of compliance across member states and over time, Tables 1 and 3 showed that Italy, Belgium, France and Greece had much higher levels of non-compliance with ECJ rulings. While instrumental explanations were hard pressed to explain these variations, based upon the integrative compliance model, we should expect that there are also differences in the social costs of compliance between countries such as Belgium and Denmark. While there is some evidence that backs this interpretation, existing research


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unfortunately only allows us tentatively to answer this question, and it is a promising area of research for future studies of compliance in the EU. Looking at compliance over time, based upon the integrative compliance model, we should expect that the social costs of non-compliance grow over time as actors increasingly perceive parts of EU law as part of the ‘law of the land’. When we use the distribution of enforcement actions or preliminary rulings in different policy areas over time as an indicator of levels of compliance with EU law, we see that there has been a shift in the 1990s. While levels of noncompliance in older areas of law such as the free movement of goods fell, governmental non-compliance was markedly higher in newer policy areas such as taxation, environmental policy, consumer protection and social policy (Beach 2001: 122– 3). This datum lends backing to the conjecture that the social costs of non-compliance increase over time as specific parts of EU law are increasingly accepted as ‘the law of the land’. The integrative compliance model can also be applied to the investigation of patterns of compliance with the rulings of other international courts. Here a comparison of the levels of compliance with rulings by the European Court of Human Rights and the International Court of Justice (ICJ) is highly illustrative. The rulings of international tribunals such as the ICJ are often only accepted when they reflect the instrumental interests of actors, and are often blatantly flouted. In contrast, the rulings of the European Court of Human Rights enjoy considerable normative power, as the level of embeddedness of the case law of the European Court of Human Rights in national legal orders is often similar to that of EU law. Existing studies have indicated that governments usually respect its rulings despite the high instrumental costs of compliance (Bernhardt 1994: 303). For instance, in the Open Door case brought before the European Court of Human Rights,22 the Court ruled that the Irish constitutional provisions on the prohibition of providing information about abortion were illegal. While the ruling clashed directly with a fundamental normative principle of the Irish polity, the ruling influenced the Irish government surprisingly to hold a referendum in 1992 that changed the constitution in line with the ruling (Pearce 1993). Concluding, by bridging the gap between normative and instrumental approaches by creating an integrative compliance model, we are able to explain cases of governmental compliance that neither purely instrumentalist nor purely normative models are able to do. What is now necessary is more empirical and theoretical research that takes the distinctive nature of the legal system seriously, while not losing sight of the significant explanatory power of instrumentalist approaches. More work is needed on questions such as detailing the scope conditions for the relative strengths of normative and instrumental factors, and empirical fieldwork is needed to study questions such as crossnational variations in the social costs of non-compliance. Address for correspondence: Derek Beach, Department of Political Science, University of Aarhus, Bartholinsalle, DK 8000, Aarhus C, Denmark. email: [email protected]

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NOTES 1 Earlier versions of this article have been presented to ECSA 2001, Danish ECSA 2001, the British Institute of International and Comparative Law, and the Department of Political Science, University of Aarhus. The author would like to thank the participants in these workshops for useful feedback, along with the very insightful comments of two anonymous reviewers. 2 On compliance with ECJ rulings, see the annual reports published by the European Commission on monitoring the application of Community law. For the European Court of Human Rights, see, for example, Bernhardt (1994). 3 See Hurd (1999) for a good review of these two types of instrumental motivations. Also Tallberg (2002). 4 See the articles in Brown Weiss and Jacobson (1998) for good examples of the applicability of instrumental theories in explaining compliance with international environmental law. 5 Modernist social constructivism operates with a positivistic epistemological approach but is critical of methodological individualism, distinguishing it from more reflectivist and post-positivistic inspired social constructivism. For more on this distinction, see Christiansen et al. (1999). Also compare positivistic works such as Checkel (2001) and Adler (1997) with Smith (1999). 6 A third theory is the so-called management approach, which argues that nonimplementation is mostly a product of the inability of national authorities to comply with the law owing to a lack of capacity and the ambiguity of rules (see Tallberg 2002). See in the section on enforcement in this article for more. 7 The clearest indicator of governmental non-compliance with EU law is arguably the number of non-implemented ECJ rulings in enforcement actions brought by the Commission, as governments in these cases have lost a case before the ECJ but have failed to bring their house in order despite having had sufficient time to do so. See Bo¨rzel (2001) and Bo¨rzel et al. (2003) for good discussions of some of the problems in statistically measuring non-compliance in the EU. One of the main problems of statistics in relation to the focus of this article is that we have no figures on levels of ‘indirect’ compliance of governments with preliminary rulings. While governments rarely if ever directly defy their own national courts, it is more questionable whether governments faithfully implement rulings handed down in preliminary reference cases beyond the case in hand. Conant (2002) basically argues that the answer is that governments do not undertake the broader administrative and legislative implementation of principles delivered in preliminary rulings, but her study is only a limited n case study. Another problem with statistics on non-compliance in the EU is that the Commission’s enforcement strategy has varied over time, and that the Commission sometimes does decide that the political costs of raising an enforcement case are greater than the benefits. The best example of this is the lack of enforcement by the Commission of EU law in the London taxi case. 8 Judgments delivered within the last six months are not counted in the statistics, as governments realistically need some time before they can bring their house in order. Cases where the Commission is terminating proceedings are also not counted. Non-implemented judgments that persist over several years are counted for each year, as they reflect a case of governmental non-compliance in every year. 9 Commission (1998, 1999, 2000, 2001 and 2002). 10 See European Commission Annual Reports on the Monitoring of the Application of Community Law. Also Bo¨rzel et al. (2003); Bo¨rzel (2001). 11 See Adler (1997); Checkel (1997, 1999, 2001); Trondal (2001); Wendt (1992). 12 See the chapters in Slaughter et al. (1998).


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13 That supremacy was widely accepted does not mean that Eurosceptics applauded these developments. As will be seen below, several Eurosceptics throughout the 1990s unsuccessfully attempted to reassert the supremacy of the British parliament. See also Nicol (2001: 219 –22). 14 Parts of the following draw on Beach (2001). 15 Article 118a of the EC Treaty has been deleted by the Treaty of Amsterdam, and replaced by sections in Articles 137 and 139 EC. 16 The Financial Times has an account of the negotiations within the cabinet that according to several high-level inside sources that I have interviewed ‘reflects reality’ (see Financial Times, 27 June 1996, p. 15). The following is therefore based upon the Financial Times article together with the accounts by several high-level cabinet officials who took part in the meetings, and have access to the minutes of the meetings. 17 There were some cabinet-level Eurosceptics who still talked about British noncompliance with an adverse ECJ ruling in the fall of 1996 (see Independent, 8 November 1996). However, they had been marginalized by the DOP decision in June. 18 For a good account of the British Eurosceptics’ ‘war’ against the ECJ during the early to mid-1990s, see Nicol (2001). 19 HC, 276, col. 198, 23 April 1996. 20 United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities, Order of the Court of 12 July 1996, ECR [1996] I-3903. 21 The term ‘taking the law seriously’ is borrowed from Joerges (1996). 22 Open Door Counselling Ltd and Dublin Well Woman Centre Ltd v. Republic of Ireland, ECHR 1992, Series A, no. 246.

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