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Obstinate and Inefficient: Why Member States Do Not Comply With European Law
Tanja A. Brzel, Tobias Hofmann, Diana Panke and Carina Sprungk Comparative Political Studies 2010 43: 1363 originally published online 27 July 2010 DOI: 10.1177/0010414010376910 The online version of this article can be found at: http://cps.sagepub.com/content/43/11/1363

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Obstinate and Inefficient: Why Member States Do Not Comply With European Law
Tanja A. Brzel,1 Tobias Hofmann,2 Diana Panke,3 and Carina Sprungk1

Comparative Political Studies 43(11) 13631390 The Author(s) 2010 Reprints and permission: http://www. sagepub.com/journalsPermissions.nav DOI: 10.1177/0010414010376910 http://cps.sagepub.com

Abstract This article seeks to explain cross-country variation in noncompliance with European law. Although noncompliance has not significantly increased over time, some European Union member states violate European law more frequently than others.To account for the observed variance, the authors draw on three prominent approaches widely used in the compliance literature enforcement, management, and legitimacy. They develop hypotheses for each of these approaches before combining them in theoretically consistent ways. They empirically test their hypotheses using a comprehensive data set of more than 6,300 violations of European law.The findings highlight the importance of combining the enforcement and management approaches. Powerful member states are most likely to violate European law, whereas the best compliers are small countries with efficient bureaucracies. Yet administrative capacity also matters for powerful member states.The United Kingdom is much more

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Freie Universitt Berlin, Germany College of William & Mary, Williamsburg,VA, USA 3 University College Dublin, Dublin, Ireland Corresponding Author: Tanja A. Brzel, Freie Universitt Berlin, Otto Suhr Institute for Political Science, Ihnestr. 22, 14195 Berlin, Germany Email: boerzel@zedat.fu-berlin.de

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compliant than Italy, which commands similar political power but whose bureaucracy is far less efficient. Keywords compliance, enforcement, management, legitimacy, European Union

One of the major questions in the research on international institutions has been why governments, 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, p. 99). Although 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, whose monitoring, sanctioning, and adjudication mechanisms increase the costs of noncompliance. By contrast to these enforcement theories, the management approach assumes that noncompliance is involuntary and results from a lack of resources and, therefore, focuses on capacity building. Finally, social constructivists stress legitimacy, socialization, and norm internalization through processes of social learning and persuasion as explanations for compliance. Although these three approaches provide different explanations for why states comply, they have paid less attention to the question of why some states comply better than others. Member states of the European Union (EU) vary in how often they violate European law, but none of the three approaches can sufficiently explain why countries as diverse as Greece, Italy, France, and Belgium violate EU law more frequently than Denmark, the Netherlands, the United Kingdom, and Luxembourg, whose compliance records are exemplary. Against this background, we inquire into why some states are more compliant with international norms and rules than others. The EU is an ideal case to explore this question. As masters of the treaties, the member states still have a significant say in the norms and rules with which they have to comply. At the same time, EU institutions entail highly legalized monitoring, adjudication, and sanctioning mechanisms. Although all three theoretical approaches outlined above should therefore expect a higher level of compliance in the EU as compared to other international organizations and regimes, member states vary significantly in the degree to which they obey EU law. The article proceeds as follows. After outlining the empirical puzzle, we review three prominent compliance approaches in the international relations and European studies literature. For each of the three approaches, we develop

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a set of hypotheses. Although the literature often treats them as competing or at least alternative explanations, there are good reasons, both theoretical and empirical, to combine them to better account for the cross-country variation of noncompliance. Therefore, we discuss three ways to integrate the power, capacity, and legitimacy approaches in a theoretically consistent and meaningful way. Deriving an additional set of conditional hypotheses, we argue that power, capacity, and legitimacy interact and affect compliance beyond the sum of their individual effects. Next, we test our different models drawing on a comprehensive data set of all infringement cases that the European Commission opened against EU members between 1978 and 1999. The empirical findings highlight the importance of combining enforcement and management approaches. The best compliers are member states that have ample administrative capacity and lack the political power to withstand the compliance pressure of enforcement authorities. Conversely, the countries with the worst compliance records are those with limited capacity but enough power to resist the European Commissions enforcement efforts. Member states with weak capacity and limited power are not very good compliers either, but they still fare better than their powerful counterparts. Finally, powerful member states with strong capacity comply better than powerful member states with weak capacity. In short, although power has a negative impact on compliance, the impact is reduced by the interaction with capacity. In the concluding section, we place the EU in a comparative perspective and discuss the extent to which our findings can be applied to international regimes and organization, which possess a lower degree of institutionalization and legalization. Our research shows that even highly legalized international institutions do not completely mitigate power differentials between states. Moreover, although capacity building by international institutions is an effective way to improve compliance, it should combine resource transfers with measures that foster bureaucratic efficiency.

Mapping Member State Noncompliance in the EU

Our data on noncompliance with European law, which we discuss in the operationalization and data section below, show substantial variation between and within member states (Figure 1). Although all member states have to comply with the same (number of) legal acts, Italy, for instance, violates EU law more than 10 times more frequently than Denmark (almost 50 vs. only 4 violations per year). Overall, the member states can be divided into leaders,

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Annual Violations (Reasoned Opinions)

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ar et k he rla nd s Ki ng do Lu m xe m bo ur g Sp ai n Ire la nd G er m an Po y r tu ga l Be lg iu m Fr an ce G re ec e U ni te d
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Figure 1. Annual violations by member state, 19861999 The box and whisker plots depict the lowest and largest annual number of reasoned opinions, the lower and upper quartile, and the median for each of the EU 12 in the 1986 to 1999 period. We limit Figure 1 to this largest balanced subset of our EU 15 1978 to 1999 data to prevent bias because of different accession dates, length of membership, and the substantial increase in EU legislation over time. The individual plots are sorted from left to right by the average number of annual violations per member state.

laggards, and the middle field. 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 the notable exception of Spain) considerably lag behind. Analyzing this pattern more closely, we also find that it is very stable over time, with Denmark and the Netherlands having consistently much better and Belgium, France, Greece, and Italy worse noncompliance records than the EU average. The distribution of noncompliance between member states is puzzling because none of the prominent compliance approaches provides an explanation that systematically accounts for the observed variance. Power-based theories have to ask themselves why France and Italy yield similar economic and political power in the EU as Germany and the United Kingdom but are much less compliant. This becomes even more puzzling for management theories because France and Italy comply as badly as or even worse than Greece and Portugal, which are the two poorest countries in the EU 12.

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Constructivists have a hard time to understand why EU-skeptical countries such as the United Kingdom and Denmark comply much better with European law than states that are highly supportive of European integration, such as Italy, Portugal, and Belgium. Institutionalists generally have difficulties in accounting for variation between countries because the level of legalization is the same for all states 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, and precision (Keohane, Moravcsik, & Slaughter, 2000). Of course, the costs of (non)compliance may vary across countries. But then we need an explanation for why some states face higher costs than others, something institutionalist theories usually do not provide. As we see below, combining institutionalist reasoning with a power-based enforcement approach is one way to solve this problem.

Three Prominent Compliance Approaches

To explain why there is substantial variation between member states with regard to their level of noncompliance with European law, we inquire into country-level explanations. Compliance theories, such as enforcement, management, and legitimacy approaches, primarily focus on institutional design (monitoring and sanctioning, capacity building and adjudication, and socialization). Although they have largely been used to account for variation in compliance across international institutions (Keohane et al., 2000), we can reformulate them in a way to account for country-level explanatory factors, such as power (enforcement), capacity (management), and the acceptance of international rules and institutions (legitimacy).

Enforcement
Enforcement approaches assume that states choose to violate international norms and rules because they are not willing to bear the costs of compliance. From this rationalist perspective, noncompliance can be prevented only by increasing the costs of noncompliance (Dorn & Fulton, 1997; Downs, Rocke, & Barsoom, 1996; Martin, 1992). Establishing institutionalized monitoring and sanctioning mechanisms can alter the costbenefit calculations of states as the likelihood of being detected and punished increases the anticipated costs of noncompliance (Fearon, 1998; Martin, 1992). However, state power can significantly mitigate the extent to which

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states are affected by and sensitive to compliance costs (Garrett, Kelemen, & Schulz, 1998; Horne & Cutlip, 2002). The power of obstinacy: Power matters at the enforcement stage. Following the argument of Keohane and Nye (1977) on power and interdependence, states are more sensitive to reputational and material costs imposed by others if they have less political or economic power and are more dependent on future goodwill and cooperation. Unlike weaker states, powerful states can afford to be more resistant to external pressures because they have more alternatives to cooperation with a particular partner and can more easily pay for reputational or material damages. With regard to the complete and timely transposition and implementation of European law, we would then expect that high political and economic weight allows a state to be obstinate (similar to Martin, 1992). Even if a powerful state loses reputation vis--vis the European Commission or other member states, its political and economic power safeguards its influence in the EU (Thomson, Stokman, Knig, & Achen, 2006). Smaller and less powerful EU member states, by contrast, are more sensitive to external constraints imposed by material and immaterial sanctions. Not only are they less able to bear the costs of the judicial procedure before the European Court of Justice (ECJ) and are also more threatened by eventual financial sanctions, but also a reputation as good citizens and reliable partners is of particular importance to them as they cannot rely on their share of votes in the EU decision-making procedures or the importance of their domestic markets to other member states to influence EU policies. Hence, the obstinacy variant of the enforcement approach predicts a positive relation between the power of a state and its noncompliance record, and we can hypothesize that more powerful states violate European law more often than weaker states because they are less sensitive to the costs imposed by material and ideational sanctions. The power of assertiveness: Power matters at the decision-making stage. The power of a state can also deploy an impact at the decision-making stage. The political and economic weight of a member state is closely related to its assertiveness, that is, its ability to shape legal acts according to its preferences (Fearon, 1998; Giuliani, 2003; Thomson et al., 2006). The extent to which a state has managed to attain its goals during negotiations determines the costs, which a state has to bear to comply, and influences a states willingness to comply with a European law ex post. Hence, a second enforcement hypothesis expects that more powerful states violate European law less often than weaker states because they are able to decrease the costs of compliance by shaping European law according to their preferences.

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Management
Unlike the enforcement approach, the management school of thought assumes that noncompliance is involuntary. Even if states are willing to fully act in accordance with international norms, they are prevented from doing so if the preconditions that enable states to comply are absent. The literature has identified three sources of such involuntary noncompliance: lacking or insufficient state capacities, ambiguous definitions of norms, and inadequate timetables within which compliance has to be achieved (Chayes & Chayes, 1993; Chayes, Chayes, & Mitchell, 1998; Haas, 1998; Jacobsen & Weiss Brown, 1995; Young, 1992). Only state capacities can account for cross-country variation because the other variables are legal act specific. The concept of state capacity is not used uniformly in the literature. Resource-centered approaches define capacity as a states ability to act, that is, the sum of its legal authority and financial, military, and human resources (Haas, 1998; Przeworski, 1990; Simmons, 1998). Neoinstitutionalist approaches, by contrast, argue that the domestic institutional structure influences the degree of a states capacity to act and its autonomy to make decisions (Evans, 1995; Evans, Rueschemeyer, & Skocpol, 1985; Katzenstein, 1978). Thereby, domestic veto players come to the fore, blocking the implementation of international rules because of the costs they have to (co)bear (Haverland, 2000; Putnam, 1988). A large number of veto players reduces the capacity of a state to make the necessary changes to the status quo for the implementation of costly rules (Alesina & Rosenthal, 1995; Linos, 2007; Tsebelis, 2002). To do justice to both resource-centered and neoinstitutionalist arguments, we differentiate between the government autonomy and the government capacity of states. Although government autonomy refers to institutional and partisan veto players (and is 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 pooling and coordinating them, particularly if the required resources are dispersed among various public agencies (e.g., ministries) and levels of government (Egeberg, 1999; Linos, 2007; Mbaye, 2001). We therefore distinguish between two components of government capacity: resource endowment and the efficiency of a states bureaucracy to mobilize and channel resources into the compliance process. Italy and France are examples where the two components of government capacity diverge. Both command more resources than most of the other member states. Yet they are both constrained by relatively inefficient bureaucracies and serious problems

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of corruption, although France has still more government capacity than Italy (Auer, Demmke, & Polet, 1996; Nachmias & Rosenbloom, 1978).1 When it comes to the implementation of European law, both government autonomy and government capacity are necessary for the production of new and for the adaptation of preexisting national legal acts and their correct application. Based on these considerations, we hypothesize that states with lower government autonomy and capacity violate European law more often than states with higher government autonomy and capacity because their veto players may block or delay vital decisions and they do not have the material resources and/or efficient bureaucracies to comply.

Legitimacy
Constructivists draw on the logic of appropriateness to explain compliance. They assume that states are socialized into the norms and rules of international institutions. States comply out of a normative belief that a rule or institution ought to be 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 (Checkel, 2001; Hurd, 1999). There are several ways that legitimacy can be generated (cf. Dworkin, 1986; Finnemore & Sikkink, 1998; Franck, 1990; Hurrell, 1995). Because we are concerned with the explanation of cross-country variation, we focus on member states rule of law culture and their support for the EU as a rule-setting 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 & Caldeira, 1996; Jacob, Blankenburg, Kritzer, Provine, & Sanders, 1996). Legal cultures comprise three elements: the characteristics of legal awareness, general attitudes toward the supremacy of law, and general attitudes toward the judicial system and its values (Gibson & Caldeira, 1996). In this perspective, the degree of compliance correlates with the extent to which 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 the subsequent inclination to comply with it result from the diffuse support for lawmaking as a legitimate means to ensuring political order in a community (Easton, 1965). Consequently, even costly rules will principally be complied with. Although this argument was developed for compliance with domestic laws, it should also apply to international norms that constitute law. This is particularly true for European law, which is the law of the land because of its supremacy and direct effect. The

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corresponding first legitimacy hypothesis states that states with lower levels of support for the principle of the rule of law violate European law more often than states with higher levels because they generally feel a lower sense of obligation to comply with law. Support for the EU as the rule-setting institution. Rule-consistent behavior because of diffuse support is not merely a consequence of the acceptance of law as a means to ensure a communitys political order. Rules are complied with not only because laws ought to be obeyed but also because the rules are set by institutions, which enjoy a high degree of support (Dworkin, 1986; Gibson & Caldeira, 1995; Hurrell, 1995). Therefore, the second legitimacy hypothesis states that states with higher public supports for the EU as a rulesetting institution violate European law less often than member states with an EU-skeptic population because they feel a lower sense of obligation to comply specifically with European law.

Toward an Integration of Approaches

So far we have treated the three compliance approachesenforcement, management, and legitimacyas alternative or competing explanations of variation in noncompliance between EU member states. However, we already indicated that none of these prominent approaches alone can sufficiently explain why some states violate EU law more often than others. Therefore, we argue that the approaches can and indeed need to be integrated to account for the empirical pattern that we observe. As some of the explanatory variables of the three approaches are causally connected, they condition their respective effects on noncompliance. Their interaction reinforces or undermines their respective influences, and they combine into more than just the sum of their individual effects. Power and capacity. Management and enforcement approaches can interact because differences in capacity affect the cost sensitivity of states concerning noncompliance decisions. Although powerful member states can afford to resist enforcement pressures by the European Commission, those with high capacities will less frequently choose to violate European law because they can more easily afford to bear the costs of compliance than their less resourceful and inefficient counterparts that lack the capacity to comply. Hence, we hypothesize that the positive effect of the power of obstinacy on the number of violations of European law is reduced with increasing capacity. Such a relation suggests a negative interaction effect of power and capacity on noncompliance as member states propensity to resist enforcement pressures is undermined by their capacity to comply.

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Government capacity may also reinforce the negative effect of the power of assertiveness on noncompliance as it should put member states in a better position to make effective use of their political power. Therefore, we hypothesize that the negative effect of the power of assertiveness on the number of violations of European law is reinforced with increasing capacity. With respect to our empirical analysis, we expect to find a negative interaction effect, which is (ostensibly) similar to the interaction effect of the power of obstinacy 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 much capacity to do what is socially accepted as actors, whose choices are guided by an instrumental logic of costbenefit calculations. Therefore, we can hypothesize that states, which have high degrees of government capacity, should be particularly well equipped to comply with laws they intrinsically value and/or that were made by institutions they support. This implies a positive interaction effect of government capacity and legitimacy with respect to compliance, and we should be able to observe that the negative effect of support for the rule of law and the EU institutions on the number of violations of European law is reinforced with increasing capacity. Power and legitimacy. The combination of enforcement and legitimacy approaches might appear problematic because the approaches are based on different theories of social action. Attempts to integrate rationalist and constructivist reasoning focus on the scope of conditions for the two different logics of social action (Checkel, 2001; Risse, Ropp, & Sikkink, 1999). In a similar vein, we argue that states that have 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 behaviorif their population is supportive of the rule of law and the rule-setting institution, respectively. Therefore, we expect that the positive effect of the power of obstinacy on the number of violations of European law is reduced with increasing support for the rule of law and the EU. Finally, 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 of assertiveness increases because high support for the rule of law at the domestic level demands compliance with international laws, even if they are costly. Therefore, we expect that the negative effect of the power of assertiveness on the number of violations of European law is reinforced with increasing support for the rule of law.

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Operationalization and Data Infringement Proceedings as a Measure of Noncompliance

Studies on compliance with international norms and rules face the methodological challenge of measuring their dependent variable. Many have developed their own assessment criteria and collected the empirical information in laborious case studies (e.g., Falkner, Treib, Hartlapp, & Leiber, 2005; Finnemore & Sikkink, 1998; Mitchell, 2003). Others have drawn on statistical data provided by the monitoring bodies of international regimes and organizations (e.g., Linos, 2007; Perkins & Neumayer, 2007; Reinhardt, 2001). As in any other international organization, member states have to transpose and implement European law into their domestic legal orders. In principle, member states can violate European law in three different ways. They can fail to notify the European Commission of the national measures taken to legally implement directives or regulations in due time (notification failure), they can incorrectly and incompletely transpose European law (incorrect transposition), or they can incompletely implement it (incorrect implementation). Regardless of the type of violation at stake, Article 226 ECT entitles the European Commission to take legal action against member states suspected of violating European law. The infringement proceedings consist of several stages. The first two stages, suspected violations (complaints, petitions, etc.) and formal letters, are considered unofficial. The official proceedings (Article 226 ECT) start when the European Commission issues a reasoned opinion and ends with a ruling of the ECJ. If member states still refuse to comply, the Commission can open new proceedings (Article 228 ECT). Article 228 ECT proceedings consist of the same stages as Article 226 ECT proceedings, but the ECJ has the right to impose financial penalties (Tallberg, 2002). For our analysis, we draw on the European Commissions very own infringement database, which has been made available to researchers for the very first time.2 Unlike the data published in the Commissions Annual Reports on Monitoring the Application of Community Law, this comprehensive database contains detailed information on the legal basis (CELEX number), type of violation, and the stage reached in the proceedings of all the more than 6,300 individual infringement cases in which the European Commission issued a reasoned opinion to member states between 1978 and 1999.3 We use these reasoned opinions to construct our dependent variable not only because of the depth of information about this first official stage of the infringement proceedings but also because reasoned opinions concern the more serious cases of

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noncompliance, that is, issues that could not be solved through informal negotiations at the two previous stages. Relying on infringement proceedings as an indicator for noncompliance 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 and constitute a representative sample of all the violations that occur. First, for reasons of limited resources, the European Commission is not capable of detecting and legally pursuing all instances of noncompliance with European law. Infringement proceedings present only a fraction of all instances of noncompliance, and the 6,300 cases might be only the tip of the noncompliance iceberg (Falkner et al., 2005). Moreover, the infringement sample could be biased because the Commission depends heavily on the member states reporting back on their implementation activities, costly and time-consuming consultancy reports, and information from citizens, interest groups, and companies. Yet there is no indication that the limited detection of noncompliance systematically biases infringement data toward 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. This survey analyzes the extent to which the infringement data collected by the European Commission reflect the member states perspective and assesses whether and where national experts perceive a bias in the data.4 All but one Committee of Permanent Representatives expert replied, giving us a response rate of 93.3%. The most important findings are that more than two thirds of the respondents do not think that the infringement data contain any systematic bias toward certain member states. What is more, the experts assessment of which member states violate EU law most and least is in line with the Commissions infringement data, with France, Greece, and Italy being considered the main laggards and Denmark, Finland, and Sweden the compliance leaders. This strengthens our confidence that our database does not contain a systematic bias. One final concern is the number of European legal acts in force that can potentially be violated, which has more than doubled from fewer than 5,000 to almost 10,000 in the 1978 to 1999 period. To control for the substantial increase in opportunities for noncompliance over time, we use a relative rather than an absolute measure of noncompliance as the dependent variable in our statistical analysis. The reasoned opinions variable puts the number of reasoned opinions sent to a member state in a given year in relation to the number of European legal acts in force in that year.5

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Operationalizing Power, Capacity, and Legitimacy

Before we can empirically test the effects of power, capacity, and legitimacy on the frequency of noncompliance, we also need to discuss the operationalization of the relevant covariates. We use two indicators that account for different aspects of powereconomic size and EU-specific political powerto test the influence of obstinacy on noncompliance. Gross domestic product (GDP) in trillion constant 1995 U.S. dollars (World Bank, 2005) is a commonly used proxy for economic power (Martin, 1992; Moravcsik, 1998; Steinberg, 2002). It influences the sensitivity toward material costs of financial penalties or the withholding of EU subsidies. Direct EU-specific political power is more relevant for reputational costs. Member states with significant voting power cannot be ignored in EU decision making, even if they may have lost credibility by not complying with previously agreed on 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 in the Council of Ministers (Shapley Shubik Index) as an indicator of EU-specific political power (Rodden, 2002; Shapley & Shubik, 1954). This indicator also operationalizes the power of assertiveness. The power to shape EU rules is strongly mitigated by the highly institutionalized context of EU decision making and the need for coalition building (Thomson et al., 2006), as a result of which such power resources as military capabilities do not carry much weight. Population is relevant but is captured by both GDP and the Shapley Shubik Index. To test the hypotheses we derived from the management approach, we need indicators for both government autonomy and capacity. Government autonomy is a function of the number of institutional and partisan veto players in the domestic political system (Immergut, 1998; Tsebelis, 2002). However, even if their number remains constant over time, actors interests for example, regarding (non)compliancemay change. Therefore, we use an index by Henisz (2002), which allows for the interests of veto players in such a way that interdependences between veto players and the respective political system are taken into consideration. The constraints covariate is based on a spatial model of political interaction among government branches, measuring the number of independent branches with veto power and the distribution of political preferences across these branches, and can be interpreted as a measure of the institutional constraints that produce gridlock and so undermine the ability of the government to change policies even when such change is necessary for compliance with EU law.6 We operationalize

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government capacity by two indicators. GDP per capita in thousand constant 1995 U.S. dollars (World Bank, 2005) is a general measure for the resources on which a state can draw to ensure compliance (Brautigam, 1996). Whether a state has the capacity to mobilize these resources is captured by an index of bureaucratic efficiency and professionalism of the public service (Auer et al., 1996; Mbaye, 2001). This index consists of three components: performancerelated pay for civil servants, lack of permanent tenure, and public advertising of open positions.7 Operationalizing the rule of law is somewhat problematic. Although the extent of the support for the rule of law can be quantified on the basis of opinion poll data, good data are rare. We use opinion poll survey data from Gibson and Caldeira (1996), even though the authors retrieved data only for 1992-1993. These data measure the extent of support for the rule of law (in percentages) on the basis of agreement 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, and If I do not agree with a rule, it is okay to violate it as long as I pay attention to not being discovered.8 Data on public EU support (in percentages) are available from Eurobarometer surveys. Hence, the acceptance of European institutions can be quantified by the question that refers to the support of the membership of ones own country in the EU.

Empirical Analysis and Results

In this section, we report the results of our statistical tests of the effects of power, capacity, and legitimacy on noncompliance. We discuss the findings in turn, referring to Models 1 to 5 of Table 1, which simultaneously estimate the influence of each of the three theoretical approaches, controlling for the influences of the other approaches. While Model 1 constitutes the basic model without interactions, Models 2 to 4 test the three different groups of interactive hypothesespower and capacity, capacity and legitimacy, and power and legitimacy, respectively.9 Model 5 tests the robustness of Model 2 by looking at ECJ referrals instead of reasoned opinions. It demonstrates that our findings are consistent across the stages of the commissions official infringement proceedings.10 All models include year fixed effects to control for period effects that go beyond the growing number of legal acts, unobserved temporal heterogeneity, and structural breaks, such as the completion of the internal market.11

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Table 1. Power, Capacity, Legitimacy, and Violations
(1) Reasoned opinions Power GDP SSI Capacity GDP per capita Efficiency Constraints Legitimacy Rule of law EU support Interaction effects SSI efficiency Rule of law efficiency EU support efficiency SSI rule of law SSI EU support Constant Observations Adjusted R2 0.1091 (0.096) 233 .48 0.1389 (0.098) 233 .50 0.1100 (0.089) 233 .49 0.0460 (0.034) 0.0336** (0.012) 0.0001 (0.003) 0.2227** (0.087) 0.0176 (0.279) 0.0020 (0.009) 0.0011 (0.002) (2) Reasoned opinions 0.0559 (0.047) 0.0312*** (0.008) 0.0013 (0.002) 0.1785** (0.078) 0.0449 (0.310) 0.0063 (0.007) 0.0013 (0.002) 0.0127*** (0.004) 0.0029 (0.009) 0.0034 (0.003) 0.0013 (0.001) 0.0012** (0.000) 0.1245 (0.095) 233 .52 (3) Reasoned opinions 0.0340 (0.115) 0.0317* (0.015) 0.0009 (0.004) 0.2216* (0.102) 0.0317 (0.350) 0.0043 (0.009) 0.0002 (0.002) (4) Reasoned opinions 0.0597 (0.083) 0.0370** (0.014) 0.0013 (0.004) 0.1697** (0.072) 0.0901 (0.356) 0.0044 (0.007) 0.0024 (0.002)

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(5) ECJ referrals 0.0238 (0.019) 0.0127*** (0.003) 0.0022 (0.002) 0.1004** (0.038) 0.0766 (0.096) 0.0001 (0.004) 0.0002 (0.001) 0.0042** (0.002)

0.0154 (0.046) 233 .44

ECJ = European Court of Justice; SSI = Shapley Shubik Index. Dependent variables are reasoned opinions and ECJ referrals per legal act in force, respectively. Entries are ordinary least squares coefficients. Robust standard errors (clustered on member state) are in parentheses.Year fixed effects are included in all models. *p < .1. **p < .05. ***p < .01 (two-tailed).

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(a) Conditional Slopes .8 Efficiency = low Efficiency = medium Efficiency = high Marginal effect of Shapley Shubik Index

Comparative Political Studies 43(11)

(b) Marginal Effect .04 .02 0 .02

Reasoned Opinions per legal act (in %)

.2

.4

.6

.05

.1

.15

.2

.04

.2

90% confidence intervals 0 1 2 Efficiency 3

Shapley Shubik Index

Figure 2. The power of obstinacy and government capacity

Enforcement
Our empirical findings support the obstinacy hypothesis. The political weight in the Council of Ministers (Shapley Shubik Index) has a significant effect on violations per legal act in all models. Member states such as France and Italy have more council votes and violate European law more frequently than member states with lower voting power, such as Denmark and the Netherlands. Greater economic power (GDP), by contrast, does not substantially affect a countrys compliance record. The size of the economy does not matter when it comes to violations of European law. However, the obstinacy hypothesis has difficulty in accounting for the compliance performance of the United Kingdom, on one hand, and Greece, Belgium, and Portugal, on the other. Although the former complies much better compared to other big countries, the latter three have considerably less voting power and are still among the worst compliers. To better understand these outliers, we must inspect Models 2 and 5 more closely and take a look at Figures 2a and 2b. Although Figure 2a depicts how the conditional positive slope of voting power decreases with increasing levels of bureaucratic efficiency and the noninteracted covariates held constant

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at their mean, Figure 2b shows the marginal effect of the political weight in the Council of Ministers on noncompliance across the observed range of the efficiency modifying variable with 90% confidence intervals. Irrespective of their differences, both figures highlight the interaction of the power of obstinacy and government capacity with respect to violations of EU law. Increases in capacity make the noncompliance promoting effects of power less pronounced. This explains why the United Kingdom outperforms its powerful counterparts. Although they may have similar power of obstinacy levels, they lack the efficiency of the British bureaucracy. Also at medium levels of political power, Belgium, Greece, and Portugal are much more obstinate than the Netherlands, which features higher government capacity. The assertiveness hypothesis states that more powerful states violate European law less often than weaker states because they are able to decrease compliance costs by shaping European law according to their preferences. We test this hypothesis in exactly the same way as the obstinacy hypothesis above using the same indicators. The only difference is our expectation with respect to the signs of our power covariates. As discussed above, Table 1 provides strong support for the obstinacy hypothesis, and therefore the assertiveness hypothesis has to be rejected. The interactive hypotheses of power and legitimacy score just as poorly as the assertiveness hypothesis. Not only is the interaction effect between the covariates Shapley Shubik Index and rule of law not significantly different from zero, but more public support for the EU apparently increases the positive effect of the power of obstinacy on the number of violations of European law. In other words, it seems that support for the EU makes obstinate member states even more, not less, obstinate. Given the argument below that efficiency and EU support are virtually interchangeable covariates (both tapping into government capacity), this can be considered as indirect and additional support for our interactive power of obstinacy and capacity hypothesis, explicitly tested and confirmed in Models 2 and 5.

Management
Testing the effect of government autonomy and government capacity on noncompliance, we find a strong relation between the effectiveness component of government capacity and the number of violations in all models. Although resource endowment measured by the covariate GDP per capita has no significant effect on compliance, we can see that greater bureaucratic efficiency brings about fewer violations of European law. This is in line with other studies, which also find that the command of resources is less of an issue in the EU

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(Hille & Knill, 2006; Mbaye, 2001; Steunenberg, 2006). Compliance appears to depend much more on the capacity to mobilize existing resources. This explains why France and Italy, which belong to the wealthiest member states of the EU, violate EU law as frequently as relatively poor countries such as Greece and Portugal. Government autonomy seems to have no effect on the number of violations. 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 relatively few violations of European law (Brzel, Hofmann, Panke, & Sprungk, 2003; Mbaye, 2001). Both the literature on consensual democracies and that on decision making in the EU offer tentative explanations for this counterintuitive finding. On one hand, if domestic constraints prevent governments from concluding far-reaching agreements in Brussels (Bailer & Schneider, 2006), there is no need for veto players to block the implementation of European rules. On the other hand, Lijphart (1999) has argued that high horizontal and vertical dispersion of policy competencies fosters the inclusion of diverse societal interests into political processes and the construction of broad compromises. To avoid deadlocks, consensual democracies develop political cultures with inclinations toward diffuse reciprocity. Yet the fact that both unitary member states such as Greece and France and regionalized Italy and federal Belgium are included in the group of compliance laggards only emphasizes that government autonomy is a poor predictor for compliance. In a nutshell, the government autonomy hypothesis must be rejected, whereas the bureaucratic efficiency component of government capacity has a strong negative effect on the number of violations. In fact and as discussed above, bureaucratic efficiency has an additional desirable property: It improves the propensity of obstinate member states to comply with European law.

Legitimacy
The statistical analysis finds no significant correlation between the rule of law covariate and the frequency of violations of European law. Even though four of the five coefficients point in the right direction, the rule of law hypothesis cannot be confirmed. However, we must keep in mind the limitations of our rule of law data discussed above. We would need better rule of law data for a more reliable statement on the influence of legal culture on compliance. As to the question of support for the EU, our findings are also disappointing. If anything, we rather find a positive correlation between public support and

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violations of European law than the negative effect that our second legitimacy hypothesis predicts. Countries such as Italy and Belgium, in which the population is supportive of European integration, violate legal acts more frequently than EU-skeptic member states such as Denmark and the United Kingdom. This counterintuitive finding may be explained by a strong direct and negative relation between capacity and legitimacy that leads to the positive, albeit spurious, correlation between the variables EU support and reasoned opinions per legal act in force. Citizens of states with weak capacities turn to the EU as an institution that may be more effective in providing public goods (Lampinen & Uusikyl, 1998; Snchez-Cuenca, 2000). As a consequence, those member states most supportive of the EU may be among the worst compliers because even if the EU produces rules for the provision of public goods, governments still lack the capacity to effectively implement them on the ground. This finding is corroborated by international relations scholars, who argue that states have an incentive to delegate authority to international institutions to achieve policy outcomes that cannot be realized at the domestic level because of powerful veto players or a lack of resources (Putnam, 1988; Simmons, 2002). In sum, although the rule of law hypothesis might still yield some more promising results, once better rule of law data become available, the support hypothesis clearly has to be rejected. The results do not support the expected negative effect of EU support on noncompliance. However, these findings are less surprising if we evaluate them in light of the link between capacity and legitimacy.

Discussion
Our article seeks to explain why some member states violate European law more often than others. In a first step, we developed hypotheses based on three prominent theoretical approaches. Rather than merely treating the approaches as competing or alternative explanations, we integrated them in a theoretically consistent way. In a second step, we extensively tested the empirical implications of our hypotheses. The regression results show that especially a combined model of the capacity and power approach explains a substantial part of the observed variance on our dependent variable. The combination of power of obstinacy and government capacity 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 violations than weaker member states (Figure 3, top vs. bottom). Countries with high capacities, such as Denmark and the United Kingdom, have a better

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Figure 3. Power, capacity, and expected compliance

compliance record than states with lower capacities, such as Portugal and Belgium (Figure 3, right vs. left). By combining the managerial variable government capacity (efficiency) with the power of obstinacy variable (Shapley Shubik Index) in an interactive way, we can explain the noncompliance behavior of alleged outliers. Although 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 the EU but is almost as bad a complier as more powerful Italy. What they share is a substantial lack of government capacity. All in all, states with high capacities and low political power violate European law less frequently than other member states. Conversely, the combination of constrained government capacity and great political power brings together the inability to comply and the necessary political weight to be obstinate in the face of looming sanctions. Although there are outliers such as Spain, which complies much better than predicted, our interactive power of obstinacy and government capacity hypothesis is strongly supported by the data. The overall predictive accuracy of the integrated model is remarkable. These findings indicate some pathways for future research. First of all, our findings point to the importance of disentangling specific variants of each of

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the three compliance approaches. Within the enforcement approach, the assertiveness variant was rejected whereas the obstinacy hypothesis successfully explains the frequency of noncompliance. Likewise for the management approach, only the capacity of a government to mobilize existing resources, and not its autonomy to introduce domestic change, is related to the number of violations of European law. As for the legitimacy approach, support for the rule of law rather than for the EU as the rule-setting institution might have some potential to explain member states noncompliance records. Also, there are variants to the legitimacy approach that focus on norm-specific factors, such as procedural fairness or peer pressure, which we did not address in our analysis. Second, the strong interaction effects between variables from the enforcement and management approaches that we found demonstrate the added value of combining specific aspects of different theoretical approaches to better explain noncompliance with European law. Finally, what does the EU teach us about compliance in world politics? The EU is often regarded as a system sui generis, whose unique supranational properties (e.g., supremacy and direct effect of European law) preclude generalizations to other international institutions. However, if we adopt a finegrained-enough perspective, any political institution ultimately will appear to be one of its kind. Although the EU is the most legalized system in the world (Alter, 2000), institutionalized compliance mechanisms can also be found elsewhere (Peters, 2003; Smith, 2000). Thus, our study has three important implications for state compliance with international law. First, states with both low capacities (in terms of bureaucratic efficiency) and high shares of power are likely to be compliance laggards and delimit the power of international law. They lack the capacity to immediately comply and, at the same time, are not willing to introduce major resource redistributions and investments but rather rely on their ability to resist enforcement pressure. Second, the twinning of management and enforcement instruments is an effective way to establish compliance (Tallberg, 2002). The combination of managerial dialogue, capacity building, and penalties addresses the two major sources of noncompliance identified by our study. However, the managerial instrument of capacity building is not sufficient if it merely entails the transfer of resources to noncompliant states. Rather, it is essential to foster bureaucratic efficiency, for example, by promoting anticorruption measures as part of good governance. Third, there is one factor that may limit generalizations from the EU to other international organizations. Even though there is a gap in capacities and power between member states, the EU consists of a group of relatively homogenous states, which face a globally unique level of political and economic

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integration. By contrast, the membership of other international organizations and regional integration agreements, such as ASEAN or NAFTA, is much more heterogeneous in terms of economic strength and development and financial or administrative capacities. This also applies to the regime types of member states, their respect for human rights, and the rule of law. We cannot explore the role of these potential background variables because they are constant within our data set. Future research should explore to what extent these economic and political factors affect the explanatory value of the integrated power capacity model and to which extent they account for unexplained variation. Acknowledgments
We thank Andrea Liese, Katerina Linos, Brooke Luetgert, Thomas Risse, Beth A. Simmons, Bernard Steunenberg, and the editor and anonymous reviewers for helpful comments. Earlier Versions of this article were presented at the 104th annual meeting of the American Political Science Association and seminars at the European Commission, Harvard University, Keio University, Leiden Universiteit, Princeton University, University of Toronto, University of Victoria, and Waseda University.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interests with respect to the authorship and/or publication of this article.

Funding
This study is part of the project on Wenn Staaten sich nicht an die Regeln halten. Gewollte und ungewollte Verste gegen das EU-Gemeinschaftsrecht. The authors gratefully acknowledge the financial support of the Deutsche Forschungsgemeinschaft (BO 1831/1-1).

Notes
1. Regarding corruption, France scores significantly lower than all other Northern and Western European member states whereas Italy and Greece are a class of their own (Transparency International Perceived Corruption Index, http://www. transparency.de/Tabellarisches-Ranking.1237.0.html; cf. Kaufmann, 2004). 2. The data set will be made publicly accessible on the authors website. 3. We did not receive a complete list of those cases that were settled before the European Commission issued a reasoned opinion as information on complaints and formal letters is considered confidential. The first year for which the Commission comprehensively collected infringement data is 1978. The last year for which the Commission was willing to give us access to its database is 1999.

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4. The questionnaire sent out to the 15 representatives consisted of six questions, asking the Committee of Permanent Representatives experts how they would assess the level of compliance of their own country vis--vis other EU countries, which member state they perceive as performing best and worst, and whether they think that the Commissions infringement data are biased toward certain member states. 5. Of course, member states can also differ in their opportunities to violate specific legal acts. Their land-locked geographical location prevents Austria and Luxembourg, for instance, from violating European law pertaining to deep-sea fishing. However, although the large number of European legal acts and the wide range of policies they cover make determining and explicitly controlling for the individual violative opportunities of all member states and for all legal acts virtually impossible, they also allow us to assume that these varying opportunities are evenly distributed in the aggregate. 6. We controlled for alternative indicators of government autonomy in a separate study and found that they are neither significantly nor robustly correlated with noncompliance (Brzel, Hofmann, Panke, & Sprungk, 2003). 7. Bureaucratic efficiency highly correlates with measures of corruption, for example, the Corruption Perception Index of Transparency International (Herzfeld & Weiss, 2003). To avoid multicollinearity, we include only bureaucratic efficiency in our analysis. Other potential indicators of government capacity such as bureaucratic quality from the World Bank governance indicators (Kaufmann, Kraay, & Mastruzzi, 2006)lack sufficient variance among the EU member states. 8. Alternative indicators used in the rule of law literature include the law and order tradition (Kaufmann et al., 2006). When substituted for the Gibson and Caldeira measure of the support for the rule of law, it produces virtually identical results. 9. 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 a model does not lend itself to substantive interpretation because of the severe multicollinearity introduced by the sheer number of multiplicative terms. In fact, although variation inflation factors above 10 are considered indicative of multicollinearity, they are in the hundreds in such a model. 10. We also estimated separate models for failures to transpose and implement European legislation, which produced virtually identical results for both types of noncompliance. 11. As to unobserved country heterogeneity, we decided against a fixed-effect specification, which impedes the inclusion of time-invariant covariates and disregards the cross-country information in the data (cf. Plmper, Manow, & Trger, 2005).

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Bios
Tanja A. Brzel is professor of political science and holds the chair for European integration at the Otto Suhr Institute for Political Science, Freie Universitt Berlin. Together with Thomas Risse she directs the Transformative Power of Europe research college. Tobias Hofmann is visiting instructor of government at the College of William & Mary. His research interests include the political economy of international organizations and regional integration. Diana Panke is lecturer of politics at the University College Dublin. Her book The Effectiveness of the European Court of Justice: Why Reluctant States Comply, which deals with the power of judicial discourses in the European Union, has just been published by Manchester University Press. Carina Sprungk is an assistant professor at the Otto Suhr Institute for Political Science, Freie Universitt Berlin. Her research interests include European Union politics, compliance, legislative politics, and environmental policy.

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