Differentiated Policy Implementation in the European Union

This Workshop is jointly organized by Sebastiaan Princen, Eva Ruffing, Eva Thomann and Asya Zhelyazkova. Context and motivation. The European Union (EU) regulatory state is designed to address shared policy problems through central steering, but largely leaves the “rowing” to the member states implementing EU law (Majone 1999). European governance is currently facing massive challenges, such as disintegration (Brexit), persistent implementation failures (asylum policy, Eurocrisis), and the increasing political mobilization of Euroscepticism (Hungary) (Dinan et al. 2017). These crises test EU integration as an unprecedented effort at jointly governing problems which increasingly cannot be resolved within the borders of a single nation state (Majone 1999). In fact, the wish to “take back control” was an often-cited reason why the British electorate voted to leave the EU. In response, there is renewed interest in allowing member states to opt in or out of EU policies, or commit to them at different paces and possibly at different levels (“differentiated integration”; Hooghe and Marks 2001; Leuffen et al. 2012). Studies of differentiated integration have exclusively focused on explaining “variations in the level and intensity of participation in European policy regimes” (Wallace 1998: 137; Majone 2009). This literature understands differentiation as the outcome of increased diversity of integration preferences and capacities of the member states (e.g. Dyson and Sepos 2010: 5-6; Majone 2009: 221; Schimmelfennig and Winzen 2014). Furthermore, attempts of the EU to integrate and regulate policy areas that member state governments, parliaments and citizens regard as salient for their identity or sovereignty have stalled treaty negotiations, led to failed referenda and, in many cases, agreement on differentiated integration (Schimmelfennig and Winzen 2014). Yet, even though differentiation appears to function as an institutional strategy to overcome heterogeneous member state preferences and capacities at the level of treaty and EU secondary law, studies of differentiation in the implementation of public policy are missing. Furthermore, there is a lack of theoretical and empirical work regarding the relationship between different levels of participation in the EU and national policy outcomes (see Zhelyazkova 2014). The aim of this workshop is to move beyond the study of decisions to commit to EU policies “on paper” (Windhoff-Héritier 1999, 2001). Rather, in order to understand what makes the EU work, we need to know how European integration works in practice (Bondarouk and Mastenbroek 2018). Differentiated intergration is not only achieved at the EU level. EU member states have a lot of discretion when applying EU Directives, but also EU soft law. This leads to an immense diversity of “practical policy solutions” in the EU. For example, some countries go much further than what is minimally required by the EU in promoting the rules to reduce air pollution. However, additional requirements can also create red tape and unnecessary burdens that hamper the competitiveness of producers in the single market (“gold-plating”, Voermans 2009). As a result, EU governance is not limited to than differentiated participation in EU policy (where different policy regimes apply to different member states) or compliance with EU law. Non-EU member states may choose to implement EU laws, even if they are not legally bound by European legislation. Member states may choose different, yet equally EU law-obiding policies, they may combine policies with different procedural rules or informal practices. In this workshop, we therefore focus on the diversity of policy implementation in the EU. The aim of the workshop is to explore the diversity of implementation practices, the drivers of this diversity, as well as its consequences. The question of EU law implementation is of great theoretical and empirical relevance as we almost completely lack theoretical and empirical knowledge about this diversity, its causes, and its implications (Falkner 2016; Fink and Ruffing 2017; Princen 2018). In addition, the question is also of great political and societal relevance as these processes of adaptation offer important opportunities for member states to make EU policies fit domestic contexts and preferences (Richardson 2012). This diversity plays a paramount role in a) how effective EU rules are in practice, and b) how citizens experience “distant” EU policies and their capacity to address important problems. State of the art. EU research tends to narrowly frame EU policy implementation as a problem of legal compliance, that is, whether national law conforms to EU Directives (Knill 2015; Treib 2014). It is implicitly assumed that the point at which a particular policy is decided upon is the one pivotal for problem-solving. Either a problem is tackled successfully at this point or problem-solving failed. However, decades of policy implementation research has proven this assumption wrong: policymaking essentially goes on during policy implementation, and this leads to better or worse solutions in practice (Hill and Hupe 2014; Winter 2012). In addition, the policy cyle may start over again, feeding experiences with implementation back into policy-making (Börzel 2002; Zhelyazkova 2014). The lesson we draw from policy research is therefore that we cannot know the implications of EU policies without studying how they come about and are put into practice. However, reliable data is very difficult to obtain on more differentiated transposition patterns or practical implementation outcomes, as opposed to datasets on legal compliance (Treib 2014). We do not know how generalizable the results of existing (comparative) case studies in selected countries and policy sectors are (Falkner et al. 2005; Thomann 2019; Versluis 2007). For example, there is limited research on causes and consequences of differentiated implementation in both EU and non-EU countries. Moreover, the potentially adverse economic consequences of differentiated implementation (“gold-plating”) for the competitiveness of local businesses (Radaelli and Meuweuse 2009; Voermans 2009) have not been systematically analysed. However, knowledge about these consequences is not only practically relevant, but would also inform research on European regulation. All in all, we lack available data to explore the dynamics of European integration in practice. Differentiated implementation: a new research agenda. In recent years, several innovations have contributed to the more systematic study of differentiated policy implementation in the EU (Thomann and Sager 2018). A new generation of EU policy implementation research “beyond legal compliance” analyses more fine-grained variation in legal transposition, such as gold-plating and customization (Falkner et al. 2005; Jans et al. 2009; Thomann 2015, 2019; Versluis 2007), or practical performance and compliance (Bondarouk and Liefferink 2017; Bondarouk and Mastenbroek 2018; Toshkov and de Haan 2013; Zhelyazkova et al. 2016, 2017, 2018) as well as the causes for differentiated implementation (Fink and Ruffing 2017). One example is the concept of “customization” (Thomann 2015) which allows the researcher to theorize and measure how EU rules change as they are being implemented. In summary, we currently observe a new generation of policy implementation research which focuses on differentiated policy implementation as a crucial aspect of European integration in practice. 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