European Rules as 'Law of the Land'? towards Optimalisation of EU Member State Compliance

Article excerpt


For many lawyers, politicians and policy officials in the European Union, it has always remained a glorious pipe dream to achieve and maintain a maximal effectiveness of all the rules adopted. In accordance with United States' constitutional terminology, this would denote a situation in which the laws and principles originating from the EU are no longer considered foreign and external to the national legal systems, but are regarded everywhere as part of 'the law of the land'. Such a situation, in which Member State compliance is both optimal and natural, has remained a desideratum up to the present day, however utopian it may have seemed from the outset.

In the meanwhile, an abundant literature on compliance has been steadily amassing. Especially in the past decade, scholars have been hyperactive in researching, proving and disproving the relevance of numerous parameters believed or alleged to influence Member State practises, implementation strategies, and the success ratio of various types of EU rules (for overviews, see Mastenbroek 2005; Sverdrup 2007; Treib 2008). Yet, studies on the general prerequisites and facilitating factors for successful compliance in abstracto have so far not been conducted. Moreover, the research up until now has had but two main focal points, namely 1) the transposition, implementation and execution of EU rules (treaty provisions, directives etc.), and 2) the practise of national and European administrative bodies, such as the Commission and governmental departments, decentralised offices and (quasi-) autonomous entities. By consequence, the literature at present is replete with black holes on at least two counts: first, as regards studies on the actual enforcement of EU rules, the application thereof 'on the ground', in everyday reality--despite recent calls to broaden our view and incorporate this dimension in future research (e.g. Treib 2008: 18-19; but see Versluis 2007). Second, too little is known about the conduct of the judiciary, i.e. the state of compliance with EU rules by judicial bodies, the third and supposedly 'least dangerous branch' of government (Bickel 1962). The latter gap may be due to the fact that legal scholars, after a relatively strong presence at the birth of this field of research (e.g. Krislov et. al. 1986; Snyder 1993; Weiler 1994) appear to have withdrawn in the mid-1990s, and chiefly left the debate to political scientist and students of public administration.

The present article, written from a lawyer's perspective, is a first attempt at overcoming the current dearth: by taking a comprehensive view on what constitutes a member state, encompassing all three governmental powers (legislative, executive, judicial), and also, by considering compliance as both process and output, from the adoption of the rules concerned, up to and including their factual application and enforcement. Nonetheless, the author considers as the main void to be filled an outlining of the route towards optimalisation, leaving empirical issues aside for now, and bypassing the (unresolved as ever) debate on what the decisive factor(s) might be that trigger, tempt or induce Member State authorities to comply. This approach is, to a great extent, predicated upon the author's conviction that it may well be impossible to locate the 'holy grail' and conclude that particular debate once and for all, at least on short notice. Said 'grail' might not even exist at all: for all we know now, compliance may well come down to an inchoate multitude of factors, factors which are so random and so reliant on time, space and context that it is impossible to make sound inferences valid for all other situations. This supposition is strengthened by the fact that the accession of new EU members in 2004 and 2007, rather than bringing us closer to uncovering the true and universal parameters at play, has shed less light than was originally hoped for, as evident from the clashing assertions in the recently published research concentrated on the performance of the EU-I0 and EU-2 (contrast e. …


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