Recalcitrance and Inefficiency
Why Do Member States (Not) Comply with European Law?
– Comments most welcome –Tanja A. Börzel
Free University of Berlinboerzel@zedat.fu-berlin.de
Tobias HofmannCollege of William & Mary
thofmann@wm.edu
Diana Panke
University College Dublin
diana.panke@ucd.ie
Carina Sprungk
University of Osnabrück
csprungk@uos.de

To be presented at the Keio Jean Monnet Centre of Excellence for EU Studies, July 12, 2008.

Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

Abstract
This paper seeks to explain cross-country variation in non-compliance with European law. While
non-compliance has not significantly increased over time, some member states violate European
law more frequently than others. In order to account for the variance observed, we draw on threeprominent approaches in the International Relations literature on compliance – enforcement,
management, and legitimacy. First, we develop a set of hypotheses for each of the three theories.
We then discuss how they can be combined in theoretically consistent ways and developinteractive models. Finally, we empirically test these models drawing on a unique andcomprehensive dataset, which comprises more than 6,300 instances of member state noncompliance with European law between 1978 and 1999. Our empirical findings highlight theimportance of combining the enforcement and the management approach. Politically powerfulmember states are most likely to violate European law while the best compliers are small
countries with highly efficient bureaucracies. Yet, administrative capacity also matters for
powerful member states. The UK and Germany are much more compliant than France and Italy,
which command similar political power, but whose administrations are ridden by bureaucratic
inefficiency and corruption.

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1 Introduction1
One of the major questions in the research on international institutions has been “whygovernments, seeking to promote their own interests, ever comply with the rules of international
regimes when they view these rules as in conflict with [...] their myopic self-interest” (Keohane
1984, 99). While realists argue that states simply do not comply if the costs of a rule are too high,rational institutionalists point to the role of international regimes and organizations, which entail
monitoring, sanctioning, and adjudication mechanisms increasing the costs of non-compliance.
In contrast to these enforcement approaches, management theories, assume that non-complianceis involuntary and results from a lack of resources and, therefore, focus on capacity-building andrule specification. Social constructivists, finally, stress legitimacy, socialization, and norm
internalization through processes of social learning and persuasion as mechanisms explaining
compliance behavior. Thus, different International Relations approaches provide different
explanations for why states comply. However, they have paid less attention to the question of
why some states comply better than others.
This paper inquires why some states are more inclined to comply with international norms andrules than others. The European Union (EU) is an ideal case to explore this question. As ‘mastersof the treaties,’ the member states still have a significant say on the norms and rules they have tocomply with. At the same time, EU institutions entail highly legalized monitoring, adjudication,and sanctioning mechanisms. They do not only aim at changing the instrumental calculations ofstates by increasing the costs of non-compliance, but also allow for rule specification andcapacity-building and promote processes of social learning and persuasion. Thus, all approaches
should expect a rather high level of compliance with EU law. Many students of European politics
would agree that the EU, compared to most international regimes, does not suffer from serious
compliance problems (Zürn and Joerges 2005). At the same time, the European Commission as
well as the academic literature have denounced a growing compliance deficit, which is believed tobe systemic or pathological to the EU (Krislov, Ehlermann, and Weiler 1986; Weiler 1988;
1

We thank Robert O. Keohane, Thomas Risse, Jefferey T. Checkel, Beth A. Simmons, Frank
Schimmelfennig, Bernard Steunenberg, Jonas Tallberg, Katerina Linos, the participants of the
Wheatherhead Center of International Affairs’ International Law and International Relations seminar at
Harvard, and the participants of the Niehaus Center for Globalization and Governance’s Faculty
Colloquium in International Relations at Princeton for detailed comments. Needless to say, we are solely
responsible for any conceptual, methodological, or empirical errors that may remain.

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Snyder 1993; Mendrinou 1996; Tallberg 2002). Strictly speaking, we have no data, which would
allow us to draw any valid conclusion about whether the EU has a (growing) compliance problem.
Even though the European Commission as the monitoring and enforcement authority opens
hundreds of infringement proceedings against the member states for violating EU law every year,
these cover only a fraction of all violations. Infringement proceedings are no indicator of theactual or absolute level of non-compliance in the EU (Börzel 2001). But, since infringement
proceedings constitute a random sample of all non-compliance cases that occur, they allow us tocompare relative levels of non-compliance across time, policies, and member states. Why is it, forexample, that the EU-skeptic United Kingdom, Sweden, and Denmark belong to the complianceleaders while more EU-friendly Italy, France, or Portugal are part of the group of laggards? Or,
why do centralized countries like France and Greece have equally bad compliance records asfederal Belgium and regionalized Italy?
In order to explain the varying degree of state compliance with European law, this paper draws
on a unique and comprehensive dataset. For the very first time, researchers have been granted
direct access to the infringement database of the European Commission, which is in charge ofmonitoring compliance with European law. The Commission provided us with a complete set of
all the cases it opened against the member states for violating European law between 1978 and1999. Unlike the data published in the Commission’s Official Reports, our database contains
information regarding the nature of non-compliance, the type of law infringed on, the policy
sector to which the law pertains, the violating member state, and the measures taken by EU
institutions in response to non-compliance for each of the more than 6,300 infringement cases.
The data confirm that there is substantial variation in the level of compliance among the member
states that lacks explanation.
In a nutshell, we argue that member state compliance is a function of both power and capacity.
Politically powerful member states are most likely to violate European law while the bestcompliers are small, politically weak countries with highly efficient bureaucracies. Yet,administrative capacity also matters for powerful member states. The UK and Germany are much
more compliant than France and Italy, which yield similar political power, but whose
administrations are ridden by bureaucratic inefficiency and corruption. In fact, we find aninteraction between capacity and power, where capacity conditions the relation between power

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and compliance. With increasing bureaucratic efficiency, the non-compliance promoting effects
of power are gradually reduced.
The paper proceeds as follows. After outlining the empirical puzzle, we review three prominent
compliance approaches in the International Relations literature, develop an integrated approachthat combines the most promising compliance mechanisms, and provide a comprehensive test of
its explanatory power. Enforcement approaches assume that states violate international norms
and rules voluntarily because they are not willing to bear the costs of compliance. By increasing
external constraints, international institutions can alter strategic cost-benefit calculations of states
and lead to a change of their preferences over strategies eventually resulting in compliance. By
contrast, management approaches argue that non-compliance is involuntary, i.e. is not the resultof strategic choices. States are willing to comply, but lack the necessary resources. The third
approach – legitimacy – argues similar to enforcement theories that non-compliance is intentional.
But, unlike management and enforcement approaches, legitimacy draws on socialization,
persuasion, and learning mechanisms. Compliance is not a matter of sufficient material resources
or a question of costs and benefits of rule conforming behavior, but depends on whether a rule isinternalized and accepted as a standard for appropriate behavior.
For each of the three approaches, we develop a set of hypotheses. While the literature often
treats them as competing or at least alternative explanations, there are good reasons, boththeoretical and empirical, to combine them to better account for the cross-member state variationof non-compliance (Checkel 2001; Tallberg 2002). We discuss three ways to integrate the power,
capacity, and legitimacy approaches in a theoretically consistent and meaningful way. Deriving an
additional set of interactive hypotheses, we argue that in specific constellations, power, capacity,and legitimacy interact and affect compliance beyond the sum of their individual effects.
Next, we test different models using statistical methods. The empirical findings highlight theimportance of combining the enforcement and management approach. The best compliers are
member states that have ample administrative capacity and lack the political power to resist thecompliance pressure of enforcement authorities. Conversely, the countries with the worst
compliance records are those with limited capacity, but enough power to resist the European
Commission’s enforcement efforts. Member states with weak capacity and limited power are notvery good compliers either, but they still fare better than their powerful counterparts. Finally,

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powerful member states with strong capacity comply better than powerful member states withweak capacity. In short, while power has a negative impact on compliance, it is reduced by theinteraction with capacity.
In the concluding section, we place the EU in a comparative perspective and discuss the extent towhich our findings can be applied to international regimes and organization, which possess alower degree of institutionalization and legalization. Our research shows that even highly
legalized international institutions do not completely mitigate power differences between states.
Moreover, while capacity-building by international institutions is an effective way to improve
compliance, it should combine resource transfer with measures that foster bureaucratic efficiency.

2 Non-Compliance in the European Union
2.1 Infringement Proceedings as a Measure of Non-compliance
Studies on compliance with international norms and rules face the methodological challenge ofmeasuring their dependent variable (Simmons 1998; Raustiala and Slaughter 2002). Many havedeveloped their own assessment criteria and collected the empirical information in laborious casestudies (for instance Duina 1997; Falkner et al. 2005; Mitchell 2003; Finnemore and Sikkink 1998).
Others have drawn on statistical data provided by the monitoring bodies of international regimes
and organizations, like the European Commission has done for the EU since 1984 (for instance
Reinhardt 2001; Steinberg 2002; Kaeding 2006; Linos 2007; Perkins and Neumayer 2007). Its
Annual Reports on Monitoring the Application of Community Law2 contain information on thelegal action the Commission brought against the member states. Article 226 ECT (ex-Article 169)
entitles the Commission to open infringement proceedings against member states suspected to bein violation of European law. As in any other international organization, member states have totranspose and implement European law into their domestic orders. In principle, member states
can violate European law in three different ways, which eventually severely inhibits its
effectiveness. They can fail to notify the European Commission of the national measures taken inorder to legally implement directives or regulations in due time (notification failure). Also, states
can incorrectly and incompletely transpose European law (incorrect transposition) or they can

2 Source: http://ec.europa.eu/community_law/index_en.htm, last accessed on June 30, 2008.

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incompletely implement it (incorrect implementation). Regardless of the type of violation at stake,
European infringement proceedings consist of several stages. The first two, suspected
infringements (complaints, petitions, etc.) and Formal Letters, are considered unofficial andtreated largely as confidential. The official infringement procedure (Article 226 ECT) starts when
the European Commission issues a Reasoned Opinion and ends with a ruling of the European
Court of Justice. If the member states still refuse to comply, the Commission can open newproceedings (Article 228 ECT, ex-Article 171). Article 228 ECT proceedings consist of the samestages as Article 226 ECT proceedings, but the ECJ has the possibility to impose a financial
penalty (Snyder 1993; Tallberg 2002).
The dependent variable of our study uses the Reasoned Opinions issues for suspected EU law
violations as a measure for non-compliance for two reasons. First, Reasoned Opinions constitutethe first official stage of the infringement proceedings. While the number of cases is almost threetimes as high in the previous two stages (Tallberg 2002), the Commission considers informationon complaints and Formal Letters as confidential and only provides aggregate data on the total
number of cases. Second, Reasoned Opinions concern the more serious cases of non-complianceas they refer to issues that could not be solved through informal negotiations at the previous,
unofficial stages (such as notification failures).
In order to control for the growing number of legal acts that can be potentially infringed on, we
use the relative number of Reasoned Opinions sent per legal act rather than the absolute number
per member state in a given year as the dependent variable in our study. Between 1978 and 1999,
the Commission opened almost 17,000 infringement proceedings (Formal Letters). In the sametime period, the number of legal acts in force has more than doubled from less than 5,000 toalmost 10,000. We develop a relative measure of non-compliance by putting the number of
Reasoned Opinions sent to a member states in a given year in relation to the number of legal acts
in force in that year. Moreover, we use time dummies in all our analyses to also prevent biases
caused by structural breaks, such as the completion of the Internal Market, which frequently
haunt panel analyses (Banerjee, Galbraith, and Dolado 1993).
The database, on which this paper draws, is based on a unique and comprehensive dataset
including all the infringement proceedings in which the European Commission sent a Reasoned
Opinion to member states. Since notification failures are often quickly resolved before theCompliance with EU Law | 7

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Commission issues a Reasoned Opinion, the vast majority of cases consist of transposition andimplementation problems.3 The database contains more than 6,300 individual infringement cases,
which are classified by infringement number, member state, policy, legal basis (CELEX number),legal act, type of infringement, and stage reached in the proceedings.4 The Commission gave us
access to its own database. We were allowed to download all the data available for the years 1978
to 1999 (excluding the Formal Letters).5
Using infringements as a measure for non-compliance with European law is not without
problems, though. There are good reasons to question whether infringement proceedings qualify
as a valid and reliable indicator of compliance failure, that is, whether they constitute a random
sample of all the non-compliance cases that occur. First, for reasons of limited resources, theEuropean Commission is not capable of detecting and legally pursuing all instances of noncompliance with European law. Infringement proceedings present only a fraction of all instancesof non-compliance and the 6,300 cases in our dataset might only be the tip of the noncompliance iceberg in the EU (Falkner et al. 2005). Moreover, the infringement sample could beseriously biased since the Commission depends heavily on the member states reporting back on
their implementation activities, on costly and time-consuming consultancy reports, and on
information from citizens, interest groups, and companies. Yet, whereas the monitoring capacityof member states and their domestic actors varies, there is no indication that the limited detectionof non-compliance systematically biases infringement data towards certain member states. We
have been conducting an expert survey among the legal experts of the EU 15 member states’
permanent representations to the EU in Brussels. The purpose of this survey was to analyze theextent to which the infringement data collected by the European Commission reflects themember states’ perspective, and to assess whether and where national experts perceive a bias in
the data.6 All but one COREPER expert replied, giving us a response rate of 93.3 percent. The
3 In the empirical section of this paper, we do not explicitly differentiate between failures to transpose or

implement European legislation because other international organizations do not follow the EU’stypology of norm violations. However, if we run separate regression for all types of non-compliance,
we find virtually identical results. Those results can be provided on request.
4 The dataset will be made publicly accessible at the authors’ website.
5 1978 is the first year, for which the Commission comprehensively collected infringement data. 1999 is

the last year, for which the Commission was willing to give us access to its database.
6 The questionnaire sent out to the 15 representations consisted of six questions, asking the COREPER

experts how they would assess the level of compliance of their own country as compared to other EU
countries (1), which member state they perceive as performing best and worst (2), if they think thatCompliance with EU Law | 8

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most important findings are that more than 2/3 of the COREPER experts do not think that the
infringement data contains any systematic bias towards certain member states. What is more, theexperts' assessment of which member states violate EU law most and least is in line with theCommission’s infringement data, with France, Greece, and Italy being considered the main
laggards, and Denmark, Finland, and Sweden the compliance leaders. This strengthens ourconfidence that our database does not contain a systematic bias.
2.2 Mapping Member State Non-compliance with European Law
Our data on non-compliance with European law show significant variation between and within
member states (graph 1).7 Italy, for instance, violates EU law about ten times more frequently
than Denmark as well as Sweden and Finland, which are not depicted in the graph since they only
joined in 1995. Overall, the member states can be divided into leaders, laggards, and the middlefield. Denmark, the Netherlands and the United Kingdom are good compliers and seldom violate
European law. By contrast, Belgium, France, and the Southern European countries (with thenotable exception of Spain) considerably lag behind. The remaining member states range inbetween and form the middle-field. Analyzing this pattern more closely, we also find that it isvirtually constant over time. Leaders stay leaders, while Belgium, France, Greece, and Italy always
belong to the group of member states that lag behind. Denmark and the Netherlands consistently
have non-compliance records that are much better than that of the EU 12 average, while Italy
and Greece live up to their notorious reputation throughout the period 1986-99.

the distribution of infringement data is biased towards certain member states (3), and if yes to whom(4), what factors could determine an over- or an under-representation of certain member states (5),and what determines the (non-) compliance level of their own country (6).
7 While we use non-compliance data from the period 1978-99 in the empirical part of this paper, thedescriptive analysis of our dependent variable in graph 1 is limited to the largest balanced subset ofour data, i.e. the EU 12 and the years 1986 to 1999, in order to control for the different accession
dates of the member states. The box-and-whisker plots depict the lowest and largest number of
Reasoned Opinions per year, the lower and upper quartile, and the median for each of the EU 12.
The individual box plots are sorted from left to right by the average number of infringements per
member state.

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0Infringements (Reasoned Opinions)
20
40
60

80

Graph 1: Annual Reasoned Opinions by EU 12 Member States, 1986-998

DN

NL

UK

LU

ES

IR

DE

PR

BE

FR

GR

IT

The distribution of non-compliance between member states is puzzling because, at first sight,
none of the prominent compliance approaches seems to provide an explanation thatsystematically accounts for the variance observed. Power-based theories of International
Relations should ask themselves why France and Italy yield similar economic and political powerin the EU as Germany and the UK, but are much less compliant. This becomes even morepuzzling for management theories since France and Italy comply as badly as or even worse than
Greece and Portugal, which are the two poorest countries in the EU 15. Constructivists shouldhave a hard time to understand why EU-skeptical countries like the UK, Denmark, Sweden, orFinland comply much better with European law than states which are highly supportive ofEuropean integration, such as France, Italy, or Belgium. Institutionalists generally have difficulties
in accounting for variation between countries since the level of legalization is the same for allstates within an international institution. Likewise, monitoring and sanctioning mechanisms
should affect the cost-benefit calculations of states in an equal way. Variance is much more
expected between international institutions, if they differ in their degree of obligation, delegation,
8 BE = Belgium, DE = Germany, DN = Denmark, ES = Spain, FR = France, GR = Greece, IR = Ireland, IT = Italy, LU = Luxembourg, NL = the Netherlands, PR= Portugal, and UK = the United Kingdom.

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and precision (Abbott et al. 2000; Keohane, Moravcsik, and Slaughter 2000). Of course, the costsof (non-) compliance may vary across countries. But then we need an explanation for why somestates face higher costs than others, something which institutionalist theories usually do notprovide. As we will see below, combining institutionalist reasoning with a power-based
enforcement approach is one way to solve this problem.

3 Three Prominent Compliance Approaches
To explain why there is substantial variation between member states with regard to their level of(non-) compliance with European law, we inquire into country-based explanations. International
Relations theories, such as enforcement, management, and legitimacy approaches, primarily focus
on institutional design (monitoring and sanctioning, capacity-building and adjudication, andsocialization). Consequently, they have largely been used to account for variation in complianceacross international institutions (Keohane, Moravcsik, and Slaughter 2000; Abbott et al. 2000).
However, all three approaches can be reformulated in a way to account for country-based
explanatory factors, such as power (enforcement), capacity (management), and the acceptance ofinternational rules and institutions (legitimacy).
3.1 Enforcement
Enforcement approaches assume that states choose to violate international norms and rules
because they are not willing to bear the costs of compliance that result even from technical andnarrow legal acts. Incentives for defection are particularly strong if international norms and rules
are not compatible with national arrangements as a result of which compliance requires
substantial changes at the domestic level (Cortell and Davis 1996; Checkel 2001; Risse and Ropp
1999; Underdal 1998). From this rationalist perspective, non-compliance can only be prevented
by increasing the costs of non-compliance (Martin 1992; Downs, Rocke, and Barsoom 1996;
Dorn and Fulton 1997). Increasing external constraints by establishing institutionalized
monitoring and sanctioning mechanisms can alter the strategic cost-benefit calculations of states.
The likelihood of being detected and punished increases the anticipated costs of non-compliance,
be they material (economic sanctions or financial penalties) (Martin 1992; Fearon 1998) orCompliance with EU Law | 11

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immaterial (loss of reputation and credibility)9 Such costs may finally lead to a change of strategic
preferences towards compliance. However, states do not necessarily face the same compliancecosts nor are they equally sensitive to sanctions (Abbott et al. 2000; Garrett, Kelemen, and Schulz
1998; Horne and Cutlip 2002). Drawing on power-based theories of International Relations, we
can distinguish three strands of the enforcement approach: recalcitrance, assertiveness, anddeterrence.
The Power of Recalcitrance: Power Matters at the Stage of Enforcement
The enforcement approach emphasizes adjustment costs, which each state faces for complying
with specific international rules. According to the recalcitrance branch of the enforcement school,a state’s overall cost-sensitivity crucially affects its willingness to invest in compliance. Following
the argument of Keohane and Nye on power and interdependence, (Keohane and Nye 1977)
states can be regarded as being more sensitive to reputation and material costs imposed by others
if they have less political or economic power and are more dependent on future goodwill and cooperation than other states. Powerful states by contrast can afford to be more resistant toexternal pressures, since they have more alternatives to co-operative action with a particularpartner and can more easily afford reputation or material damages. Hence, power is an indicatorof the cost-sensitivity of a state and influences states willingness to invest in compliance. With
regard to our dependent variable, we would then expect that the less powerful EU member states
are more sensitive to external constraints composed of material and immaterial sanctions and,
therefore, less likely to infringe on EU legal acts (similar Martin 1992). Its high political andeconomic weight, by contrast, allows a state to be recalcitrant with respect to the complete andtimely transposition and implementation of European law. Even if a powerful state losses
reputation vis-à-vis the European Commission or other member states due to excessive noncompliance, its political and economic power safeguards influence in EU negotiations, since big
state interests are usually accommodated (Thomson et al. 2006). A small and less powerful state,by contrast cannot rely on its big numbers of votes in the decision-making procedure and on theimportance of its domestic market for other member states. Hence, a reputation as a good citizen
and an efficient and reliable partner is all the more important in order to shape EU policies. A
similar line of reasoning applies to material sanctions for norm violations. A less powerfulmember state is less able to bear the costs for the judicial procedure before the European Court
9 Checkel calls this “social sanctioning” (Checkel 2001, 558); cf. Klotz 1995; Keck and Sikkink 1998;

Gurowitz 1999; Satori 2002; Schoppa 1999.

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008of Justice and is also more threatened by an eventual financial sanction of the ECJ. Hence, therecalcitrance variant of the enforcement approach predicts a positive relation between the powerof a state and its non-compliance record. The first enforcement hypothesis expects that more
powerful states infringe on international and European laws more often than weaker states since they are lesssensitive to the costs imposed by material and ideational sanctions.
The Power of Assertiveness: Power Matters at the Stage of Decision-making
The second variant of the enforcement approach focuses also on states, but attributes moreweight to the decision-making process in which eventually costly European laws are passed.
According to this line of argumentation, the power of a member state deploys an impact on thestage of decision-making. The political and economic weight of a member state is closely related
to its assertiveness, i.e. its ability to shape legal acts according to its preferences (Giuliani 2003;
Moravcsik 1997; Fearon 1998; Keohane and Nye 1977; Thomson et al. 2006). The extent towhich a state has managed to fulfill its preferences during negotiations determines the mismatch
between prior existing domestic policies and institutions and a European directive or regulation.
This, in turn, shapes the adaptation costs, which a state has to invest in order to comply. Finally,
the compliance costs influence a state’s willingness to comply with a European law ex post. Hence,
if power is defined as assertiveness in the decision-making process, a second enforcement
hypothesis expects that more powerful states infringe on international and European laws less often thanweaker states since they have been able to decrease the costs of compliance by shaping European
law according to their preferences.
The Power of Deterrence: Power Matters for the Enforcement Authority
The assumption of a positive impact of state power on compliance has been taken up by a third
strand of the enforcement literature which emphasizes another causal mechanism. According tothis line of argumentation, the political and economic weight of a state can translate into deterrenceof the enforcement authority, i.e. the institution, which monitors compliance and imposes
sanctions against free-riders and norm-violators (Abbott et al. 2000; Garrett, Kelemen, andSchulz 1998; Horne and Cutlip 2002). The deterrence hypothesis stresses the relation between
the non-compliant state and the enforcement authority. It explains the behavior of theenforcement authority to pursue cases against suspected non-compliant states. Assuming a
principal-agent relation, the enforcement authority (agent) ultimately depends on the states(principals) since the latter can always renounce the power of the former (Horne and Cutlip 2002,

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301; Garrett, Kelemen, and Schulz 1998; Tallberg 2000). Even within the European Union, states
are the ultimate masters of the Treaties and could, therefore, introduce changes affecting thecomposition and competencies of the European Commission or the European Court of Justice.
In addition, in particular the European Commission depends on the co-operation with member
states in the economic policy-making, in which the Commission makes initiatives but cannot
introduce new European law, without the approval of the member states in the Council of
Ministers. In particular powerful states could withdraw their co-operation with the European
Commission in using their political and economic weight in EU negotiations to substantively
alter or block policies. Hence, the asymmetrical relation may induce the enforcement authorities
to act strategically and be reluctant to pursue cases or impose sanctions on powerful states, since
they could use their political weight in international institutions in retaliation. Regarding the caseof the EU, the European Commission or the ECJ might therefore be less willing to either open
infringement proceedings or issue rulings against powerful member states, since they finallydepend on the extent to which member states are willing to delegate this authority to them. Thus,
similar to the assertiveness hypothesis, the deterrence hypothesis predicts a lower record of noncompliance cases for powerful states. In contrast to the assertiveness hypothesis, however,powerful member states might actually violate a rule, but are simply not being sanctioned for it.
In this perspective, the deterrence hypothesis only allows for predictions about the probability
with which violations are prosecuted and sanctioned, not about the actual occurrence andprevalence of non-compliance (Reiss 1984). The deterrence effect, however, should still show in
our dependent variable. The third enforcement hypothesis expects that the more powerful a state is,the less often it will face infringement proceedings since enforcement authorities are deterred.
3.2 Management
Unlike the enforcement approach, the management school of thought assumes that noncompliance is involuntary. Even if states are willing to comply with a European rule, they areprevented from doing so if the very preconditions that enable states to comply are absent. The
literature has identified three sources of involuntary non-compliance: lacking or insufficient state
capacities, ambiguous definitions of norms, and inadequate timetables up to which compliancehas to be achieved (Chayes and Chayes 1993; Chayes, Chayes, and Mitchell 1998; Young 1992;
Haas 1993; Jacobsen and Weiss Brown 1995; Haas 1998). While management approaches
attribute equal influence to capacities, precision of norms, and transposition timetables, the latter

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two factors relate to the character of individual rules and, hence, cannot account for inter-statevariation. Therefore, we focus on state capacity within this paper.
The concept of state capacity is not used uniformly in the literature and its operationalizationdiffers significantly. Resource-centered approaches define capacity as a state’s ability to act, i.e.
the sum of its legal authority and financial, military, and human resources (Przeworski 1990; Haas
1998; Simmons 1998). Neo-institutionalist approaches, by contrast, argue that the domestic
institutional structure influences the degree of a state’s capacity to act and its autonomy to makedecisions (Katzenstein 1978; Evans 1995; Evans, Rueschemeyer, and Skocpol 1985). Thereby,
domestic veto players come to the fore, which block the implementation of international rules
because of the costs they have to (co-) bear (Putnam 1988; Duina 1997; Haverland 2000). A highnumber of veto players reduces the capacity of a state to make the necessary changes to the statusquo for the implementation of costly rules (Alesina and Rosenthal 1995; Tsebelis 2002; Linos
2007). In order to do justice to both lines of argumentation, we differentiate between thegovernment autonomy and the government capacity of states. While government autonomy refers to
institutional and partisan veto players (and is the higher, the lower the number of veto players is),government capacity is geared to the financial endowment of states and their human resources.
Yet, even if a state has sufficient resources, its administration may still have difficulties in poolingand coordinating them, particularly if the required resources are dispersed among various publicagencies (e.g. ministries) and levels of government (Mbaye 2001; Larrue and Chabason 1998;
Linos 2007; Egeberg 1999). We therefore distinguish between resource endowment and theefficiency of a state bureaucracy to mobilize and channel resources into the compliance process.
Italy and France are two prominent examples of how the two types of government capacity may
diverge. Both countries command more resources than most of the other member states. Yet,their government capacity is constrained by comparably inefficient bureaucracies and serious
problems of corruption.
When it comes to the implementation of European norms, both government autonomy andgovernment capacity are necessary for the production of new as well as for the adaptation ofpreexisting national legal acts and their correct application. Based on these considerations, wederive the following hypothesis from the managerial approach: The lower government autonomy andcapacity, the more difficult it becomes for a member state to comply with European legal norms. Hence, higher
rates of infringements can be expected for states with low government autonomy and capacity

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since their veto players may block or delay vital decisions and they do not have the material
resources and/or efficient bureaucracies to comply.
3.3 Legitimacy
Constructivists draw on the social logic of appropriateness to explain compliance. States aresocialized into the norms and rules of international institutions through processes of social
learning and persuasion. They comply out of a normative belief that a rule or institution ought tobe obeyed rather than because it suits their instrumental self-interests. This sense of moral
obligation is a function of the legitimacy of the rules themselves or their sources (Hurd 1999;
Franck 1990; Finnemore and Toope 2001; Checkel 2001). There are several ways by which
legitimacy can be generated. First, the rule is embedded in an underlying institution or a legal
system, which is generally characterized by a high level of legitimacy (acceptance of the rulesetting institution) (Hurd 1999; Kohler-Koch 2000). Second, a critical number of states is alreadycomplying with an international rule. As a result, other states are ‘pulled’ into compliance because
they want to demonstrate that they conform to the group of states, to which they want to belong
and whose esteem they care about (peer pressure). (Franck 1990; Finnemore and Sikkink 1998).
Third, legitimacy can also result from certain procedures that include those actors in the rulemaking that are potentially affected and who engage in processes of persuasion and mutual
learning (procedural legitimacy) (Dworkin 1986; Hurrell 1995; Franck 1995). Both, procedural
legitimacy and peer pressure focus more on compliance with individual rules (exactly those which
result from ‘fair’ decision-making processes or those with which other states already comply).
The acceptance of the rule-setting institution hypothesis emphasizes that voluntary compliance isgenerated by diffuse support for and general acceptance of the rule-setting institutions and theconstitutive principles of law-making and standing. Since our unit of analysis are country years
and we study infringements rather than individually violated legal acts in this paper, we focus on
acceptance of and support for the rule-setting institution. The institutional legitimacy hypothesis
can itself be disentangled into two different variants, which stress different institutional aspects:
the rule of law culture in a member state and the support of member states to the EU as the rulesetting institution.
Domestic Culture of Law-abidingness and Support for the Rule of Law
Legal sociological studies refer to the relation between national legal cultures and states’
inclinations to comply with national norms (Gibson and Caldeira 1996; Jacob et al. 1996). Legal

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cultures comprise three elements: the characteristics of legal awareness, general attitudes towards
the supremacy of law, and general attitudes towards the judicial system and its values (Gibson
and Caldeira 1996). In this perspective, the degree of compliance correlates with the extent towhich rule addressees accept the legitimacy of the rule of law and consider compliance with legal
norms as demanded by a domestic logic of appropriateness. The acceptance of a rule and thesubsequent inclination to comply with it result from the diffuse support for law-making as alegitimate means to ensuring political order in a community (Easton 1965). Consequently, evencostly rules will principally be complied with. While this argument was developed for compliancewith domestic laws, it should also apply to international and European rules since they also
constitute law. This is all the more true for the EU, where European law is the law of the landbecause of its supremacy and direct effect. The corresponding first legitimacy hypothesis statesthat states with lower levels of support for the principle of the rule of law infringe on European law more often thanstates with higher levels since they generally feel a lower sense of obligation to comply with law.
Support for the EU as the Rule-setting Institution
The explanation of rule-consistent behavior due to diffuse support cannot only refer to theacceptance of law as a means of insurance of political order in a community. It can also refer tothe institution responsible for rule-setting. Rules are not only complied with because laws ought
to be obeyed, but because the rules are set by institutions, which enjoy a high degree of support(Dworkin 1986; Hurrell 1995; Gibson and Caldeira 1995). Therefore, the second legitimacy
hypothesis states that member states with high public supports for the EU as a rule-setting institution infringe
European law less often than member states with an EU-skeptic population since they feel a lower sense ofobligation to comply specifically with European law.
3.4 Towards an Integration of Approaches
So far, we have treated the three compliance approaches as alternative or competing explanationsof variation in non-compliance between member states. This is in line with most of thecompliance literature that has been rather skeptical about combining different approaches
because of their diverging assumptions regarding “how the international system works, thepossibilities for governance with international law, and the policy tools that are available andshould be used to handle implementation problems” (Raustiala and Victor 1998, 681). Yet,empirical compliance studies support explanations based on power, on capacity, and on
legitimacy (Tallberg 2002; Linos 2007; Mbaye 2001; Haas 1998; Mendrinou 1996; Mastenbroek

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2003, Steunenberg 2006; Mastenbroek 2005; Reinhardt 2001; Perkins and Neumayer 2007;
Steinberg 2002, Zürn and Joerges 2005). Therefore, we inquire now whether and in which ways
these three approaches can be integrated. We demonstrate that some of the approaches canindeed be fruitfully combined and some of the explanatory variables are causally connected, sothat they condition their respective effects on non-compliance. Due to their interaction and as
they are reinforcing or undermining their respective influences, they are more together than justthe sum of their individual effects.
Power and Capacity
Enforcement approaches conceptualize compliance as a strategic choice by actors, who weigh thecosts of compliance against the benefits. The management school, by contrast, emphasizes theimportance of capacity to make and act upon (rational) choices in the first place. If actors havethe necessary resources, they may find it easy to comply and do not see the need to exert theirpower of recalcitrance to defect on otherwise costly rules. Thus, management and enforcement
approaches can be combined, since differences in capacity affect the cost sensitivity of statesconcerning non-compliance decisions. The power of recalcitrance matters less if states have thegeneral capacity to comply, because the arising compliance costs are less severe than for stateswith low capacities. While the first enforcement hypothesis only focused on the recalcitrance
effect and stated that countries with power should be worse compliers irrespective of theircapacity, combining capacity and the power of recalcitrance should result in an interaction effect.
Accordingly, powerful member states with high capacities are less cost sensitive and will lessfrequently choose to infringe on European law even though they have the power to resist
enforcement pressures by the European Commission. Hence, we hypothesize that the positive effectof the power of recalcitrance on the number of infringements on European law is reduced with increasing capacity.
Statistically, such a relation suggests a negative and significant interaction effect of power andcapacity on non-compliance as the inclination of member states to resist enforcement pressures is‘undermined’ by the capacity to comply.
Similarly, capacity and the power of deterrence are causally connected. High capacity renders theactual execution of threats more credible. Increasing capacity makes the use of power more
efficient and reinforces the negative effect of deterrence on the propensity of the European
Commission to take actions and prosecute infringements. We argued above that the Commission
may be deterred by powerful states from opening and pushing proceedings if threats of ex-post

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sanctions are credible. This is more likely the case if the respective state has the capacity to makefull use of its political weight. Therefore, a second interactive power and capacity hypothesis canbe derived, which states that the negative effect of the power of deterrence on the number of infringements isreinforced with increasing capacity.
Finally, capacity may add to and reinforce the negative effect of the power of assertiveness on
non-compliance. Member states with both the capacity to comply and the power to shape EU
rules according to their preferences should be even better compliers than countries that lackeither both or have only high capacities to cope with the costs of compliance or the power ofassertiveness. The logic behind this argument is similar to the one on the interactive effect of
capacity and the power of deterrence on non-compliance. Fewer constraints on government
capacity should put member states in a better position to make effective use of their politicalpower. This time however, member states are supposed to use their additional edge
constructively to influence the European decision-making process in their favor and shape newlegislation according to their preferences. Therefore, we hypothesize that the negative effect of thepower of assertiveness on the number of infringements is reinforced with increasing capacity. With respect to ourempirical analysis, this implies that the negative slope of the regression line relating the power ofassertiveness to infringements on EU legislation should become steeper with increases incapacity. Therefore, we expect to find a negative and significant interaction effect, which is(ostensibly) similar to the interaction effect of the power of recalcitrance and capacity discussed
above.
Capacity and Legitimacy
The conditioning effect of capacity can also apply to the relation between legitimacy and (non-)compliance as actors, who are driven by a normative logic of appropriateness, need just as muchcapacity to do what is socially accepted as actors, whose choices are guided by an instrumental
logic of cost-benefit calculations and try to strategically maximize their self-interest. Therefore,
we can hypothesize that states, which have high degrees of government capacity, should beparticularly well equipped to comply with laws they intrinsically value and/or their making
institutions they support. Conversely, countries that feature high on support, but lack capacities
should comply just as badly as their EU-skeptic counterparts despite considering law-abidingness
a virtue and their citizens’ general supportiveness of the EU. Overall, this implies a positive
interaction effect of government capacity and legitimacy with respect to compliance, and weCompliance with EU Law | 19

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should be able to observe that the negative effect of support for the rule of law and the EU on the number of
infringements is reinforced with increasing capacity.
Power and Legitimacy
The combination of enforcement and legitimacy approaches might be more fruitful than the
combination of capacity and legitimacy, but is also more problematic than that of power andcapacity since the approaches are based on different theories of social action. Despite attempts tointegrate rationalist and constructivist reasoning, synthetic explanations of (non-) compliance arestill rare (but see Checkel 2001; Risse, Ropp, and Sikkink 1999). They tend to focus on the scopeconditions for the two different logics of social action. In a similar vein, we argue that states thathave power can do as they please, but what pleases them may well be defined by a normative
logic that makes compliance the socially expected and accepted behavior – if their population is
supportive of the rule of law and the EU, respectively. Therefore, we expect that member states
are less sensitive vis-à-vis compliance costs and, ceteris paribus, more inclined to accept themwith increasing support for the rule of law and the EU. High legitimacy should reduce the effectof the power of recalcitrance on the propensity of member states to infringe on European law.
Therefore, we test as our first interactive power and legitimacy hypothesis whether the positive effectof the power of recalcitrance on the number of infringements is reduced with increasing support for the rule of law
and the EU.

There may also be an interaction effect between the power of assertiveness and legitimacy. With
increasing support for the rule of law, the inclination of governments to exert the power ofassertiveness increases. Member states with strong support for the rule of law have highincentives to shape EU law in their favor to avoid complying with inconvenient legislation onlyout of a feeling of obligation and because of their generally high support for the rule of law.
Conversely, the effect of the power of assertiveness increases with declining support for the EU,
since EU-skeptic countries seek to avoid (demanding) EU laws. Therefore, we expect that thenegative effect of the power of assertiveness on the number of infringements is reinforced with increasing support for
the rule of law and decreasing support for the EU.

Finally, we can also hypothesize an interaction effect between the power of deterrence andlegitimacy. The European Commission feels less threatened by powerful states with high support

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for the rule of law and European integration than by equally powerful states with low support for
the two issues. This is because the Commission might assume that states with a highly developed
rule of law culture and strong support for the integration process cannot invest their power
against the Commission without violating domestic logics of appropriateness. The threat ofpunishment is simply less credible. Therefore, the third interactive power and legitimacy
hypothesis is that the negative effect of the power of deterrence on the number of infringement proceedings a state
faces is reduced with increasing support for the rule of law and increasing support for the EU.

4 Empirical Analysis
4.1 Operationalization and Data Sources
Before we can empirically test the effects of power, capacity, and legitimacy on non-compliance,
we still need to discuss the operationalization of the relevant covariates. In order to test the
influence of the power of recalcitrance on non-compliance, we incorporate two power indicators
into our analysis. These indicators are widely used in the literature and account for different
aspects of power – economic size and EU-specific political power. Gross domestic product(GDP) is a proxy for economic power (Keohane 1989; Martin 1992; Moravcsik 1998; Steinberg
2002). It influences the sensitivity towards material costs of financial penalties or the withholdingof EU subsidies. The data come from the World Development Indicators (World Bank 2005).
Direct EU-specific political power is more relevant for reputational costs. Member states, such as
Germany and France, which have significant voting power, cannot be ignored by others in EU
decision-making, even if they may have lost credibility by not abiding with previously agreed
upon rules. Thus, we use the proportion of times when a member state is pivotal (and can, thus,
turn a losing into a winning coalition) under qualified majority voting (QMV) in the Council of
Ministers (Shapley Shubik Index) as an indicator of EU-specific political power (Shapley andShubik 1954; Rodden 2002). This indicator also serves for the operationalization of theassertiveness and deterrence hypotheses. The power to shape EU rules and to deter theEuropean Commission, respectively, is strongly mitigated by the highly institutionalized context
of EU decision-making and the need for coalition-building, as a result of which power resources,
such as military capabilities, do not carry much weight. Population is relevant, but is captured byboth power indicators, GDP and the Shapley Shubik Index. In fact, the number of votes amember state has in the Council of Ministers is based on the size of its population, even thoughCompliance with EU Law | 21

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the conversion factor for population to relative voting power has changed over time due to thesuccessive enlargements of the EU.
To test the hypotheses that we derived from the management school of thought, we needindicators for both government autonomy and capacity. Government autonomy is a function of
the number of veto players in the political system of a member state (Tsebelis 2002; Immergut
1998). However, even if the number of the institutional and partisan veto players remains
constant over time, the interests of these actors – for example regarding (non-) compliance – maychange. Therefore, we use an alternative veto player index (Constraints), which allows for theinterests of veto players in such a way that interdependences between veto players and therespective political system are taken into consideration (Henisz 2002). It is based on a simple
spatial model of political interaction among government branches, measuring the number of
independent branches with veto power and the distribution of political preferences across thesebranches. They can be interpreted as a measure of institutional constraints that either preclude
arbitrary changes of existing policies or produce gridlock and so undermine the ability of thegovernment to change policies when such change is needed. 10 Two alternative indicators ofgovernment autonomy are discussed in the literature: the executive control of the parliamentary
agenda measured by the extent to which the government can successfully initiate drafts and relyon stable majorities for in the legislative branch, (Döring 1995; Tsebelis 2002) and theparliamentary oversight of government measured by the material (e.g. number of committees)
and ideational resources (e.g. information processing capacity) relevant for the oversight of thelegislative on the government (Harfst and Schnapp 2003). We do not include these two variables,
because of multicollinearity concerns. Moreover, we controlled for both in a separate study andfound that they are neither significantly nor robustly correlated with non-compliance (Authors
2003).
To test for the influence of government capacity on the distribution of non-compliance, we
include two indicators that are prominent in the literature. First of all, we incorporate the GDP
per capita (Brautigam 1996). It is a general measure for the resources on which a state can draw to
10 Some scholars argue that political variables, such as partisan preferences of the governments in power,

can explain variation in compliance with EU law (e.g. Mastenbroek 2005). This explanatory variable
can be operationalized with the frequency of government changes. However, we do not find such astatistically significant relation. If partisan preferences do matter, it is more likely that they account forvariation in compliance between specific policies than for variation between countries.

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ensure compliance. The data come from the Word Development Indicators (World Bank 2005).
Whether a state has the capacity to mobilize these resources shall be captured by the second
variable, bureaucratic Efficiency. In the operationalization, we use an index of bureaucratic
efficiency and professionalism of the public service based on work by Auer and her colleagues(Mbaye 2001; Auer, Demmke, and Polet 1996). This index consists of three components ofbureaucratic efficiency: performance related pay for civil servants, lack of permanent tenure, andpublic advertising of open positions. Bureaucratic efficiency highly correlates with measures ofcorruption, e.g. the Corruption Perception Index of Transparency International (Herzfeld andWeiss 2003). For issues of multicollinearity, we include only bureaucratic efficiency in our analysis.
Other potential indicators of government capacity – such as bureaucratic quality from theInternational Country Risk Guide and the World Bank governance indicators (Kaufmann, Kraay,
and Mastruzzi 2006) – are not used due to the fact that they cover only part of the time period
analyzed in this paper and lack sufficient variance for comparative studies of the EU member
states.
Finally, the operationalization of the rule of law hypothesis initially seems unproblematic, since
the extent of the support for the rule of law can be quantified on the basis of opinion poll data.
Yet, good data are rare. We use James L. Gibson and Gregory A. Caldeira’s opinion poll survey
data, even though the authors only retrieved data at one point in time, 1992-93 (Gibson and
Caldeira 1996). The data measure the extent of support for the Rule of law on the basis ofagreement with the following statements: “it is not necessary to obey a law which I consider
unfair”, “sometimes it is better to ignore a law and to directly solve problems instead of awaiting
legal solution” as well as “if I do not agree with a rule, it is okay to violate it as long as I pay
attention to not being discovered.” Alternative indicators used in the rule of law literature include
the ‘law and order tradition’, as it is best known from the International Country Risk Guide,
provided by the World Bank (Kaufmann, Kraay, and Mastruzzi 2003). However, not only does it
not cover the full 1978-99 time period, but leads to virtually identical results as the Gibson and
Caldeira measure of the support for the rule of law if employed in our empirical analysis. Data on
public EU support are available from Eurobarometer surveys. The acceptance of European
institutions can be quantified by the question which refers to the support of the membership of
one’s own country in the EU.

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In the following, we report the results of our quantitative tests of the effects of power (4.2),
capacity (4.3), and legitimacy (4.4) on non-compliance.11 We discuss the findings in turn, referringto the models 1-5 of table 1, which estimate the influence of each of the three theoretical
approaches simultaneously controlling for the influences of the other approaches. The models
comprise the variables for each theoretical account, which were discussed in the respective
sections on the operationalization of the covariates. While model 1 consists of the basic model
without interactions, models 2 to 4, respectively, test the three different groups of interactive
hypotheses – power and capacity, capacity and legitimacy, and power and legitimacy.12 Model 5
tests the robustness of our most promising model 2 by looking at ECJ referrals instead of
Reasoned Opinions. It checks and demonstrates whether our findings are consistent across thestages of the Commission’s official infringement proceedings. In all models, we add time
dummies to control for unobserved temporal heterogeneity and period effects that go beyond thegrowing number of legal acts, discussed in section 2.1 above.

11 The regression results were generated using the statistics software package Stata/SE 9.2. We tested forfirst- and higher order autocorrelation. None was found. Problems of heteroscedasticity werecounteracted by the use robust standard errors with clustering on member states. As to unobservedcountry heterogeneity, we decided against a fixed effect specification, which impedes the inclusion oftime-invariant covariates and disregards the cross-country information in the data (cf. Plümper,
Manow, and Tröger 2005).
12 Table 1 does not contain a model that brings all interaction effects together in one single integrated

model with or without three-way interactions of power, capacity, and legitimacy. Such an integrated
model does not lend itself to substantive interpretation due to the severe multicollinearity introducedby the sheer number of multiplicative terms. In fact, while variation inflation factors above 10 areusually considered indicative of multicollinearity, they are in the hundreds in such a model. A
correlation matrix of the covariates can be provided on request.

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Table 1: Capacity, Power, Legitimacy, and Infringements
(1)
(2)
(3)
Reasoned
Reasoned
Reasoned
Opinions
Opinions
Opinions
Power:
GDP-0.0000-0.0001-0.0000
Shapley S. Index (SSI)
Capacity:
GDP per capita
Efficiency
Constraints
Legitimacy:
Rule of law
EU support(4)
Reasoned
Opinions(5)
ECJ
Referrals-0.0001-0.0000(0.0001)(0.0000)(0.0001)(0.0001)(0.0000)

0.0336**

0.0312***0.0317*0.0370**0.0127***(0.0122)(0.0085)(0.0148)(0.0137)(0.0029)0.0000-0.0000-0.0000

0.00000.0000(0.0000)(0.0000)(0.0000)(0.0000)(0.0000)-0.2227**-0.1785**-0.2216*-0.1697**-0.1004**(0.0869)(0.0778)(0.1022)(0.0719)(0.0380)0.0176-0.0449

0.0317-0.0901

0.0766(0.2788)(0.3099)(0.3499)(0.3565)(0.0963)-0.0020-0.0063-0.0043-0.00440.0001(0.0089)(0.0075)(0.0094)(0.0074)(0.0042)0.00110.00130.00020.00240.0002(0.0023)(0.0022)(0.0021)(0.0018)(0.0010)

Interaction Effects:
SSI * Efficiency-0.0127***-0.0042**(0.0036)(0.0018)

Rule of law * Efficiency-0.0029(0.0092)

EU support * Efficiency-0.0034(0.0029)

SSI * Rule of law

0.0013(0.0009)

SSI * EU support

0.0012**(0.0004)

Constant
Year dummies
Observations
Adjusted R-squared

0.10910.13890.11000.12450.0154(0.0961)(0.0976)(0.0890)(0.0952)(0.0457)

yes
233
0.48

yes
233
0.50

yes
233
0.49

yes
233
0.52

yes
233
0.44

Dependent variables are Reasoned Opinions and ECJ Referrals per legal act in force. OLS regressions
with two-tailed t-tests. Robust (Hubert/White) standard errors with clustering on member states inparentheses. *** = p 0.01, ** = p < 0.05, * = p < 0.1.

4.2 Enforcement
The results give support to the recalcitrance hypothesis. The political weight in the Council of
Ministers (Shapley Shubik Index) has a significant effect on infringements per legal act in all models.

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Member states like France, Italy, or Germany have more Council votes and violate European law
more frequently than member states with low voting power, such as Denmark, Finland, Sweden,or the Netherlands. Greater economic power (GDP), by contrast, does not substantially affect acountries compliance record. The size of the economy does not matter when it comes toinfringements on European law. Note, however, that the recalcitrance hypothesis has difficulties
in accounting for the compliance performance of the United Kingdom, on the one hand, andGreece, Belgium, and Portugal, on the other. While the former complies much better comparedwith other ‘big countries’, such as France and Italy, the latter three have considerably less voting
power and still belong to the worst compliers.
To better understand these ‘outliers’, we should inspect models 2 and 5 more closely. The
negative and significant interaction effect of voting power and bureaucratic efficiency indicateswhat can also be read of graphs 2a and 2b. Whereas graph 2a depicts how the conditional
positive slope of voting power decreases with increasing levels of bureaucratic efficiency and thenon-interacted covariates held constant at their mean, graph 2b shows the marginal effect of thepolitical weight in the Council of Ministers on non-compliance across the observed range of themodifying variable ‘efficiency’ with 90 percent confidence intervals. Irrespective of theirdifferences, both graphs give support to the interactive power of recalcitrance and government
capacity hypothesis. Increases in capacity make the non-compliance promoting effects of power
less pronounced. This explains why the United Kingdom outperforms its powerful counterparts
when it comes to compliance with European legislation. They may have similar power ofrecalcitrance levels, but they lack the efficiency of the British bureaucracy. Also at medium levelsof political power, Belgium, Greece, and Portugal are much more recalcitrant than the
Netherlands, which feature a higher government capacity.

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Graph 2: Power and Capacity(b) Marginal Effect

0

.05
.1
.15
Shapley Shubik Index
Bureaucratic efficiency = low
Bureaucratic efficiency = medium
Bureaucratic efficiency = high

.2

-.04

-.2

Marginal effect of Shapley Shubik Index
-.02
0
.02

Infringements per legal act (in %)
0
.2
.4
.6

.04

.8

(a) Conditional Slopes

0

12
Bureaucratic efficiency

3

90% confidence intervals

The assertiveness hypothesis states that more powerful states infringe European law less often
than weaker states, since they have been able to decrease the costs of compliance by shaping thelaw according to their preferences. It is tested in exactly the same way as the recalcitrance
hypothesis above using the same indicators. The only difference is our expectation with respect
to the signs of our independent power variables. This also holds true for the deterrence
hypothesis, which predicts the same outcome as the assertiveness hypothesis, but draws on
another causal mechanism, namely the likelihood that enforcement authorities shy away fromenforcing compliance. Powerful member states would have fewer infringements than weakerones if the European Commission and the ECJ were deterred by power. This is not what we find.
As discussed above, table 1 gives strong support to the recalcitrance hypothesis and, therefore,
the assertiveness hypothesis and the deterrence hypothesis have to be rejected. One should note,however, that the rejection of the deterrence hypothesis does not suggest that the Commission
might not decide strategically on which infringement cases to prosecute. However, our expert
survey clearly indicates that if the Commission strategically enforces European law, such behavior
does not systematically disadvantage specific member states (see section 2.1.).

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The interactive hypotheses of power and legitimacy score just as bad as the assertiveness anddeterrence hypotheses. While the interaction effect between the Shapley Shubik Index andsupport for the rule of law is not significantly different from zero, the interaction effect between
political power and public support for the EU is positive. This implies that with increasing
support, the positive effect of the power of recalcitrance on the number of infringements on
European law is not reduced, but increased. In other words, the effect of power on noncompliance is not conditional on the presence or absence of the rule of law, and EU support
seems to make recalcitrant member states even more recalcitrant. Given the argument below thatbureaucratic efficiency and support for the EU are in fact interchangeable covariates (bothtapping into government capacity, cf. graph 3) this can be considered as indirect and additional
support for our interactive power of recalcitrance and capacity hypothesis, explicitly tested andconfirmed in models 2 and 5.
4.3 Management
Testing the effect of government autonomy and government capacity on non-compliance, wefind a strong relation between the government capacity of a member state and its number of
infringements in all models. While general capacity measured by GDP per capita has no
significant effect on compliance, we can see that larger bureaucratic efficiency brings about fewer
violations of European law. The coefficient for the efficiency of civil servants is negative andsignificantly different from zero, the GDP per capita coefficient is not. This is in line with otherstudies, which also find that the command of resources is less of an issue in the EU (Mbaye 2001;
Hille and Knill 2006; Steunenberg 2006). Compliance appears to depend much more on thecapacity to mobilize existing resources. This explains why France and Italy, which belong to thewealthiest member states of the EU, are as bad compliers as relatively poor countries like Greeceand Portugal.
Government autonomy, by contrast, seems to have no effect on the number of infringements.
The ‘Constraints’ coefficients are not significant in any model. In fact, they even change their
algebraic sign depending on the model specification. If anything, previous studies have revealed
that countries with several veto players commit fewer violations of European law than countries
with a small number of veto players (Mbaye 2001; Authors 2003). Both, the literature on
consensual democracies and on decision-making in the EU can offer tentative explanations forthis counter-intuitive finding. On the one hand, if domestic constrains prevent governments

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form concluding far-reaching agreements in Brussels (Bailer and Schneider 2006) there is no
good reason for veto players to blockade the implementation of European rules. On the other
hand, Arendt Lijphart (Lijphart 1999) has argued that high horizontal and vertical dispersion ofpolicy competencies fosters the inclusion of diverse societal interests into political processes andoutcomes. It forces political actors to construct broad compromises and comply with them, evenin cases in which their own interests are not fully included. In order to avoid deadlocks,
consensual democracies develop political cultures with inclinations towards diffuse reciprocity.
Yet, the group of compliance laggards, which includes unitary member states, such as Greece andFrance, as well as regionalized Italy and federal Belgium, indicates that either way government
autonomy is a poor predictor for compliance.
In a nutshell, the government autonomy hypothesis has to be rejected, while government capacity
defined as bureaucratic efficiency has a strong negative effect on the number of infringements. In
fact, and as has been discussed above, bureaucratic efficiency has an additional desirable
property: It improves the propensity of recalcitrant powerful member states to comply with
European law.
4.4 Legitimacy
The statistical analysis finds no significant correlation between the support for the rule of law andthe frequency of violations of European law. Even though four of the five coefficients point in
the right direction, there is no evidence that the rule of law hypothesis could be confirmed.
However, we need to keep in mind the data issues discussed above. We would need better data
for a more reliable statement on the influence of legal culture on the degree of compliance. As tothe question of support for the EU, our findings are also disappointing. If anything, we rather
find a positive correlation between public support for the EU and infringements of European law
than the negative effect that we would anticipate in line with our second legitimacy hypothesis.
Countries, in which the population is particularly supportive of European integration, might
infringe more frequently on legal acts than EU-skeptic countries like Denmark, Sweden, and theUnited Kingdom, which comply particularly well with European law.
This counter-intuitive finding may be explained by a strong direct and negative relation between
the covariates capacity and legitimacy themselves. Not only does this close relation bring about
multicollinearity, which increases standard errors and negates significant and meaningful findings

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

with respect to EU support and non-compliance. It also leads to the positive, albeit spurious
correlation between EU support and non-compliance that we observe. The literature has foundthat support for the EU and the rule of law, respectively, is directly linked to a lack of state
capacity. Citizens of states with weak capacities show low support for the rule of law sincedomestic legislation is hardly enforced (Putnam 1993; Levi 1998; Tyler 1998). They turn to the
EU as an institution that may be more effective in providing public goods (Sánchez-Cuenca 2000;
Lampinen and Uusikylä 1998). As a consequence, those member states most supportive of the
EU can be among the worst compliers since even if the EU produces rules for the provision of
public goods, since these member states still lack the capacity to effectively implement them on
the ground (cf. graph 3). This finding is corroborated by IR scholars, who argue that states havean incentive to delegate authority to international institutions to achieve policy outcomes thatcannot be realized at the domestic level due to powerful veto players or lacking resources(Simmons 2002; Simmons and Martin 1998, 747-748; Keohane 1984; Putnam 1988; Keohane andNye 1977; Ruggie 1983) and strongly supported by our own analysis. The empirical evidence
does not only show a clear lack of any interaction effect between legitimacy and capacity, but also
the spuriousness of the legitimacy and non-compliance correlation.
Graph 3: Capacity, Legitimacy, and Compliance–

Support for European institutions+ (spurious)–
Capacity of national institutions–+

Non-compliance with(national and) European law

Support for national institutions

In sum, while there might be some hope for the rule of law hypothesis once better data becomes
available, the support hypothesis clearly has to be rejected. The results do not support the
expected negative effect of EU support on non-compliance. However, these findings are lesssurprising if we evaluate them in light of the correlation between capacity and legitimacy depicted
in graph 3.

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

5 Conclusion
This paper explained why some member states are more likely to violate European legal acts thanothers. In a first step, we developed hypotheses based on three prominent theoretical approaches.
The enforcement approach provides three hypotheses on the importance of power for the
distribution of non-compliance (recalcitrance, assertiveness, and deterrence). The management
school of thought argues that non-compliance is not a strategic choice, but occurs wheneverstates lack the necessary government capacity and government autonomy to properly and timely
implement international rules. Researchers devoted to the study of legitimacy and complianceargue that neither power nor lack of capacity determines non-compliance, but that the acceptanceof rules as standards for appropriate behavior is the relevant explanatory variable. While there aremany ways in which legitimacy might affect (non-) compliance with rules, we focused in thispaper on testing the extent to which the support for the principle of the rule of law as well as theacceptance of the rule-setting institution explain the level of non-compliance in the member
states. Instead of merely treating the three approaches as alternative or even competing
explanations, we discussed different possibilities in which their explanations could be combinedin a theoretically consistent and meaningful way. Based on this discussion, we developed several
theoretical models from which we derived different sets of interactive hypotheses.
In a second step, we extensively tested the empirical implications of our hypotheses. Ourregression results show that capacity-, power-, and legitimacy-centered models explain asubstantial part of the variance of annual infringements per European legal act in force.
Combining the variables from all three approaches, we explain about 50 percent of the observed
variance on the dependent variable. Even though one should not overstate the informative valueof the adjusted R-squared statistic, it still highlights the substantial explanatory power of ourmodel.
Especially the combination of the power of recalcitrance and bureaucratic efficiency, as depictedin the scatter plot on predicted and actual non-compliance performance in graph 4, yields
promising results. Our quantitative analysis reveals that powerful states, such as France and Italy,
which have a great share of votes in the Council, are less sensitive to enforcement costs and,
therefore, have a higher share of infringements than weaker member states (graph 4, top versus
bottom). Countries with high capacities, such as Denmark, Finland, or the United Kingdom, haveCompliance with EU Law | 31

Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

a better compliance record than states with lower capacities, such as Greece, Portugal, or Belgium(graph 4, right versus left). By combining the managerial variable government capacity(bureaucratic efficiency) with the power of recalcitrance variable (Shapley Shubik Index) in aninteractive way, we can explain the non-compliance behavior of alleged outliers. While the United
Kingdom is as powerful as France and Italy, it complies better with European law thanks to its
higher bureaucratic efficiency. Conversely, Greece is one of the least powerful countries in theEU, but almost as bad a complier as the more powerful member states France and Italy. Whatthey share is a substantial lack of government capacity compared to Denmark and the United
Kingdom. States with high capacities and low political power infringe on European law lessfrequently than other member states. In other words, the combination of constrained
government capacity and great political power brings together the inability to comply and thenecessary political weight to be recalcitrant in the face of looming sanctions. The compliancerecord of member states should improve as we move from the top-left to the bottom-rightcorner of graph 4 and, indeed, we see considerable overlap with the actual non-complianceranking of the EU member states (cf. graph 1). Italy and Denmark mark the extremes of theinfringement spectrum. Also, most of the other countries can be found on graph 4 where wewould expect them to be located due to our interactive power of recalcitrance and capacity
hypothesis. Given their EU-specific political power and bureaucratic efficiency, Belgium, Greece,and Portugal are predicted to infringe more frequently on EU legislation than Ireland,
Luxembourg, and the Netherlands, and the Scandinavian member states, exactly as they do. Of
course, this is not to say that our integrated model is capable of fully accounting for the noncompliance behavior of EU member states. The most obvious outlier is Spain, which complies
better than graph 4 would have us believe. However, the overall predictive accuracy of the modelis remarkable.

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

Graph 4: Power, Capacity, and Predicted Compliance

Shapley Shubik Index, 1995-2004
.025
.05
.075
.1
.125

Compliance improves

France and Italy

Germany

United Kingdom

Belgium, Greece, and Portugal

Netherlands

Austria

SwedenIrelandFinlandDenmark

Luxembourg

0Compliance improves

Spain

0

1

2
Bureaucratic efficiency

3

These findings indicate some pathways for future research. First of all, our findings point to theimportance of disentangling specific variants of each approach. Within the enforcement approach,both the assertiveness and the deterrence variant had to be rejected, while the recalcitrance
approach turned out to have explanatory power for the occurrence of non-compliance. The same
holds true for the management approach, in which only the capacity of a government to mobilize
existing resources seems to be causally related to the number of infringements between member
states. With regard to the legitimacy approach, only the support for the rule of law variant might
have some potential to explain member states’ non-compliance with European law. However, allvariants are also closely related to each other and definitely not mutually exclusive.
Second, our findings demonstrate the added value of combining specific aspects of different
theoretical approaches to explain non-compliance with law beyond the nation-state. We foundinteractive effects of variables from the enforcement and management approaches on compliancebehavior. Legitimacy, by contrast, turned out to have poor explanatory power. But there may beother ways of theorizing and testing the relation between the support for EU institutions andcompliance performance than by linking it to government capacity. In other words, the legitimacy

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

approach could still have explanatory power in its own right. After all, we only tested two variantsof the legitimacy approach and did not include factors, such as procedural fairness or peerpressure.
Third, our integrated model has at least one ‘outlying’ member state whose compliance record
cannot be adequately accounted for by the combination of power- and capacity-centered models.
Spain performs better than predicted having an overall medium level of infringements.
Explaining this counter-intuitive and unexpected finding requires an in-depth qualitative analysis,
which is beyond the scope of this paper.
Fourth, while the overall fit of our integrated model is quite good, a significant amount ofvariation still remains to be explained. Part of the reason may be that the compliance literature inInternational Relations has largely neglected policy-centered explanations as developed in theearly implementation literature (Pressman and Wildawsky 1973; Mazmanian and Sabatier 1981).
International Relations approaches focus on country variables, such as power, capacity, andlegitimacy, but neglect that these variables can vary within states. Our empirical findings suggestthat there are additional important explanatory factors. Non-country-based refinements of theenforcement and management approaches highlight variables, such as policy-specific capacities(e.g. budgets of different ministries) or variation in the issue salience, which influences
governmental incentives to be recalcitrant or deter the European Commission. While they might
explain why governments violate one legal act rather than another, issue-specific variables cannot
easily be quantified. This can only be done through qualitative research that traces the processesof compliance failure in the member states. Such studies could also take a closer and more finegrained look at the role of ‘misfit’. Our analysis considered incompatibilities between national andEuropean legal act as the necessary (but not sufficient) condition for non-compliance to occur.
Hence, misfit was considered as being binary: either the need for legal and administrative
adaptations at the national level was present or absent. Qualitative case studies, by contrast, could
focus on the depth of misfit and explore the domestic cost-benefit implications of compliancewith specific legal acts in greater detail. This would allow us to inquire how many and what typesof resources a state needs to invest in order to comply with EU law. In particular, states with low
capacities might be tempted to violate those legal acts, which require extraordinary amounts ofinvestment, while they re-distribute their scare resources to comply with less costly directives andCompliance with EU Law | 34

Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

regulations. Thus, ‘bringing policy back in’ could be a fruitful way to account for variations within
individual states and between policies or specific norms (Broscheid and Coen 2006).
Fifth, this study only focused on the EC 12. Our data did not allow us to assess the compliance ofthe 15 states that have joined the EU since 1995. We can only speculate on the implications of
our integrated power-capacity model for their expected compliance performance. First of all, thisstudy demonstrated that capacities are crucial for good compliance records. The Central andEastern European (CEE) countries, which became members in 2004 and 2007, respectively, haveconsiderably less capacities than the EC 12 as well as Austria, Finland, and Sweden, which joinedin 1995. Even if we compare the newcomers with Southern member states, such as Greece andPortugal, a significant capacity gap is evident. In this respect, the CEE countries form a group of
their own. Next to their low capacities, they do not yield much economic and political power(with the exception of Poland) in the EU either. Given capacity shortcomings and the lack of
power of recalcitrance, our integrated model expects medium levels of non-compliance for the
new member states. And indeed, both the European Commission’s infringement data and recent
research suggest that the new member states do not belong to the group of compliance laggards.
They have so far been subject to fewer infringement proceedings than the old member states andhave generally been faster in settling their non-compliance cases (Sedelmeier 2006). One has tobear in mind, however, that due to the short time period of membership, the new members’
infringement proceedings can only capture the delayed or incorrect transposition of directives
into their domestic legal systems. It is too early to assess the actual application of EU law inpractice. Moreover, in the light of our model, the relatively good transposition records of new
member states are even less puzzling when one takes into consideration that pre-accession
conditionality gave the Commission a powerful tool to enforce compliance with the acquis
communautaire. Moreover, the CEE countries received financial and technical assistance – e.g. via
pre-accession funding and twinning programs – to help them cope with the burden ofcompliance. Next to a substantial transfer of resources, the EU has also put a major emphasis on
the fight against corruption and the build-up of bureaucratic efficiency more generally (Sissenich
2007). Viewed from that angle, capacity-building as a means to restore compliance has alreadybeen applied in the case of Eastern enlargement. Now, it remains to be seen to which extent our
integrated model can account for future violations of the new member states in the area ofpractical application.

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

Finally, what does the EU teach us about non-compliance in international politics? The EU isoften regarded as a system sui generis, whose unique supranational properties (e.g. supremacy anddirect effect of European law) (Alter 2001) preclude generalizations to other international
institutions. However, if we adopt a fine grained enough perspective, any political institution
ultimately appears to be one of its kind. To make fruitful comparisons, we need to climb up theladder of abstraction (Sartori 1991). While the EU is the most legalized system in the world (Alter
2000, 490), institutionalized compliance mechanisms can also be found elsewhere (Mitchell 1996,
17-20; Smith 2000, 139-140; Peters 2003). Thus, our study has three important implications forcompliance with law beyond the nation state.
First, states with both low capacities (in terms of bureaucratic efficiency) and high shares ofpower are likely to be compliance laggards and delimit the power of law beyond the nation state.
They lack the capacity to easily comply with international law and, at the same time, are notwilling to introduce major resource-redistributions and investments, but rather rely on theirability to resist enforcement pressure.
Second, the twinning of management and enforcement instruments is, indeed, an effective way torestore compliance (Tallberg 2002, 632). The combination of managerial dialogue, capacitybuilding, and penalties addresses the two major sources of non-compliance identified by ourstudy. However, two caveats remain: The managerial instrument of capacity-building is not
sufficient in restoring compliance if it merely entails the transfer of resources to non-compliant
states. Rather, it is essential to foster bureaucratic efficiency, e.g. by promoting anti-corruption
measures as part of ‘good governance’. Moreover, even highly legalized institutions do not fully
mitigate power differences between states. The very fact that the EU compliance system has acentralized enforcement mechanism, which imposes financial penalties upon governments, does
not preclude such generalizations to other international organizations, such as the World Trade
Organization (WTO) and the Andean Community, where monitoring and sanctioning powers arealso delegated to third parties (Smith 2000) but which usually recur to a decentralized
enforcement mechanism, which affects economic actors rather than governments. Actually,financial sanctions have much more frequently been invoked by the WTO than in the EU, where
member states have so far only been required to pay lump sums for non-compliance in threecases. The latter is even less significant given that the EU’s financial penalties are relatively low
and do not pose a serious macro-economic threat to member states, while the WTO penalties

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Börzel, Hofmann, Panke, & Sprungk | July 3, 2008

can be much more severe in terms of their economic impact. This would imply that thedeterrence effect of the EU’s enforcement mechanism vis-à-vis states should not be necessarily
higher than in the WTO and that the WTO member states should actually shy away more quickly
from sanctions than EU member states.
Third, there is indeed one factor that may limit generalizations from the EU case to otherinternational organizations. Even though there is a gap in capacities and power between themember states, the EU consists of a group of relatively homogenous states, which face a globallyunique level of political and economic integration. By contrast, the membership of otherinternational organizations and regional integration projects, such as ASEAN or NAFTA, ismuch more heterogeneous in terms of economic strength and financial or administrative
capacities (e.g. compare the US and Mexico within NAFTA). This applies even more to theregime types of the member states, their economic development, as well as their respect forhuman rights and the rule of law. This paper cannot explore the role of these potential
background variables since they are constant within our dataset. Future research should focus on
these economic and political factors and inquire whether they affect the explanatory value of theintegrated power-capacity model and to which extent they account for unexplained variation.

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