Sectors at Different Speeds: Analysing Transposition Deficits in the European Union*

Sectors at Different Speeds: AnalysingTransposition Deficits in the European Union*jcms_2120 265..292

MARKUS HAVERLANDErasmus University Rotterdam, The Netherlands

BERNARD STEUNENBERGLeiden University, The Netherlands

FRANS VAN WAARDENUtrecht University, The Netherlands

Abstract

This article reports on a quantitative study of 1,117 cases of transposition of directivesin five EU Member States and eight policy sectors between 1978 and 2002. It findssignificant cross-sectoral performance differences, which complicate generalizationfrom studies of only one sector. These differences can be partly explained bysystematic cross-sectoral differences in transposition deadlines given, the shareof Council versus Commission directives, and the legal implementation measuresused.

Introduction

One of the most fundamental problems of the EU is how to build some unitywithin, among and from the diversity found in the 27 Member States, whilestill doing justice to that diversity, respecting it and maintaining enough of itin order not to lose legitimacy among the diverse population. The ‘unity indiversity’ issue is a very real one. The dismissal of the European Constitutionby the French and Dutch voters – and of the Lisbon Treaty by the Irishelectorate – has everything to do with it. The rejections indicate fear of a new

* Previous versions of this article have been presented at the ECPR General Conference, Pisa, 2007, andthe ECPR Joint Session of Workshops, Rennes, 2008. We thank the participants of these panels, MiriamHartlapp and the two anonymous referees of this journal for their helpful comments. Financial support bythe Dutch Science Foundation (NWO) is gratefully acknowledged.

JCMS 2011 Volume 49. Number 2. pp. 265–291DOI: 10.1111/j.1468-5965.2010.02120.x

© 2010 The Author(s)JCMS: Journal of Common Market Studies © 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 MainStreet, Malden, MA 02148, USA

alien superstate, fear of loss of national sovereignty, culture and identity(Aarts and Van der Kolk, 2006; Toonen et al., 2005).

The European legal instrument of ‘directive’ is meant to be a response tothis challenge. It unifies legislation across Europe, but leaves the differentMember States some discretion in choosing means and instruments, hencemediating between unity and diversity. Directives also allow for some dis-cretion in the transposition process itself, but almost all directives set adeadline, within which transposition must have happened. The EuropeanCourt of Justice considers timely transposition an extremely rigorous obliga-tion. It has argued in its case law that non-simultaneous implementation by allMember States hinders the elimination of inequalities before the law andjeopardizes the uniform application of European Union law (Prechal, 1995).Differences in transposition put companies on an unequal footing, andweaken the competitive position of those who are forced to obey – sometimescostly – policies (Van Waarden, 1999; Versluis, 2003). Reluctance in trans-posing European directives also undermines the legitimacy of common poli-cies and could have an impact on the European integration process at large(Bursens, 2002; Haverland and Romeijn, 2007).

The question is whether this norm is also empirical reality. Do MemberStates comply? Or does European diversity also manifest itself in variationsof obedience by different directives, Member States or sectors? This questionhas already attracted quite some academic attention. Most studies on trans-position and compliance performance focus on cross-national differences.While some aggregate this performance at the level of country by rating theoverall performance of countries and set out to explain that (Lampinen andUusikylä, 1998; Mbaye, 2001; Mastenbroek, 2003; König et al., 2005; alsoBörzel et al., 2007, Bursens, 2002), others compare Member State perfor-mance in specific policy fields. Examples of the latter include the study ofKnill and Lenschow (1998) on environmental policy, Heritier et al. (2001) ontransport policy and, more recently, Falkner et al. (2005) on social policy.However, apart from cross-national variation, there might also be significantvariation between policy sectors. Sector-specific features could speed up orretard transposition.

In this article we set out to investigate that question. Does transpositionperformance differ between sectors? And what could explain possible cross-sectoral differences? There is already some evidence that differences betweensectors exist and affect the transposition process. Based on a multivariateanalysis, Steunenberg and Rhinard (2005) found that the transposition of foodand social policy directives takes more time than that of transport and utilitiesdirectives. Haverland and Romeijn (2007) found differences between sub-areas of social policy. Lampinen and Uusikylä (1998) and König et al. (2005)

266 MARKUS HAVERLAND, BERNARD STEUNENBERG AND FRANS VAN WAARDEN

© 2010 The Author(s)JCMS: Journal of Common Market Studies © 2010 Blackwell Publishing Ltd

also reported significant differences between policy sectors. Berglund et al.(2006) elaborated the remarkable difference between food and utilities regu-lation further and provided some first explanations, such as the nature of legaltransposition instruments chosen by the Member States and the age of thepolicy area. Furthermore, Steunenberg (2007) argued that the context oftransposition is predominantly policy-specific rather than country-specific,which implies that, next to national factors, factors related to the context ofsectoral or sub-sectoral decision-making may affect how Member Statestranspose and implement European policy.

To make sense of cross-sectoral variation is not easy. Hence rather thanproviding a definite answer we present a first cut on the issue by exploringthrough bivariate and multivariate analyses whether directives have specificfeatures that affect transposition duration and delays; and whether cross-sectoral variation is associated with an uneven distribution of those directivefeatures across sectors. For example, whether new directives take more timethan modifying directives, and whether the ratio of new versus modifyingdirectives differs across sectors.

We find that, indeed, there are substantial differences between sectors withregard to the speed with which European directives are transposed. We alsofind an uneven distribution of directive features across sectors. Moreover,some of the features turned out to be associated with transposition delay. Yeteven after controlling for these factors we found significant cross-sectoralvariation. Telecommunications, energy and shipping especially stand out.These sectors have unidentified features that have a positive (reducing)impact on the transposition period with 50–100 days at 37 weeks after theofficial publication of a directive. This indicates that important factors speed-ing up or slowing down transposition are related to the sectoral or sub-sectoralcontext. In addition, we also find that the impact of different factors ontransposition speed, including our indicators of different sectors, is not con-stant in time, but may change over time (see, for similar findings, Steunenbergand Kaeding, 2009). The research is based on data collected by the Transpo-sition Project, a joint project of Leiden University, Radboud UniversityNijmegen, the University of Utrecht, the Free University Amsterdam and theErasmus University Rotterdam – all in the Netherlands. The database (as usedfor this article) consists of information on the transposition of virtually alldirectives adopted in four policy areas (food, social policy, transport andutilities) between 1978 and 2002. We investigated transposition in fiveMember States: Germany, Greece, the Netherlands, Spain and the UK.

We selected policy areas that differ on several dimensions: old (food, sometransport) and newer (utilities) regulation (market and social regulation)sectors concerned with market creation (utilities) or with market regulation

SECTORS AT DIFFERENT SPEEDS 267


(food, transport). Also, in our choice of countries we aimed for diversity: oldand newer Member States (prior to 2002), north and south. With such a spreadover policy areas and countries we have sought to ensure that our findings arerepresentative of Member State transposition of EU directives in general(prior to eastern enlargement).

A transposition case denotes the adoption of a first national legal instru-ment by which a specific directive is transposed in a specific country.1 Infor-mation on such transposition cases was collected in three steps. We startedwith the Commission’s database Celex, which contains references to nationaltransposition instruments. However, we checked the degree to which Celexdata were ‘incomplete or wrong’. All the references to national legislationthat we found in it were checked and the respective national legislative textswere looked up in national legal databases or libraries and collected infolders. We used these national instruments for the further data that weneeded for the database, such as the date of adoption or the date of enteringinto force of the national instrument. In a third step, we gathered informationabout national transposition instruments from other sources in cases whereinformation was lacking in Celex. Some references to national transpositionmeasures could be found in Commission reports. Other information wascollected from the individual Member States.

Using these methods we collected information for 1,832 transpositioncases and were able to find sufficient information to calculate delay for 1,213cases.2 In order to allow for a more fine-grained cross-sectoral analysis, wehave disaggregated the four areas into eight policy sectors: agriculture, food,health and safety at work, other social policies, road transport, maritimeshipping, telecommunications and energy. Not all directives could beassigned to specific sectors, and we have only included sectors with more than

1 We are aware that in many cases Member States use more than one instrument to transpose a Europeandirective. In these cases, the first instrument does not result in full transposition. We believe, however, thatfocusing on the first instrument is good proxy for the speed of the transposition process. This is becausewe would neither know whether the most recent instrument adopted was necessary to transpose thedirective, or rather an update of previous measures, nor would we know whether it was the last instrumentadopted to fully transpose the directive. Falkner and her collaborators have operationalized delay bylooking at the date at which the directives have been transposed ‘essentially correct’ (see Falkner et al.,2005, p. 266). Making such a qualitative statement can, however, only be established by intensive casestudies and not by a broad quantitative study such as ours.2 We have good reasons to assume that the distribution of missing cases in our database is random, thatfluctuations in reporting are due to administrative shortcomings by the Commission or the Member Statesrather than any theoretically relevant systematic reasons. Indicative of the latter is that for some years Celexinformation is more meagre than in others, and these years coincide with periods in which the responsi-bility for Celex was moved between directorates. One rather mundane, though interesting, reason formissing cases is that for about 200 transposition cases the respective directive did not provide a deadlinefor transposition. Hence we were able to study about 70 per cent of all cases, where directives provideddeadlines. Most probably, almost all of the remaining cases for which we did not find relevant informationconcern transposed cases. Hence almost all missing cases are not cases of not-yet-transposed cases.



60 cases of transposed directives. This implies that for all sector-based cal-culations, the ‘n’ is 1,117 rather than 1,213. Table 1 lists the number of casesper policy area and country in our data set.

The remainder of this article has three parts. Section I explores variationacross sectors by introducing a number of possible explanatory variables andrunning bivariate analyses. Section II develops a preliminary multivariatemodel based on the foregoing explorations and tests it, and the concludingsection summarizes the results and relates them to the broader literature.

I. Cross-Sectoral Variation

Sectors Matter

Our analysis reveals that there is indeed a transposition problem in the EU.We divided all cases into three categories, on time (until one day after thedeadline for transposition), delay (two until 730 days/two years after thedeadline) and extreme delay (more than 730 days).3 Only about 40 per centfitted in the first category, and 10 per cent were delayed by more than twoyears. Comparing transposition performance across eight sectors of EUpolicy-making reveals striking differences between sectors, in particularbetween telecommunications, on the one hand, and social policy and healthand safety at work, on the other. Telecommunications is, in relative terms, an

3 This categorization captures the most common notion on compliance with directives. From a legalperspective, directives need to be transposed on time, and this has regularly been emphasized in politics,such as by the Brussels European Council (2007). Nonetheless, it is sensible to distinguish modest delaysfrom more serious ones. The Member States themselves agreed at the Barcelona European Council ofMarch 2002 on ‘zero tolerance’ for directives whose transposition is two years or more overdue (EuropeanCouncil, 2002, p. 6).

Table 1: Number of Transposition Cases per Policy Sector and Country

Sector Netherlands Germany UK Spain Greece Total

Telecom 27 16 20 26 18 107Energy 24 20 18 22 17 101Agriculture 16 15 15 10 11 67Food 81 61 74 66 74 356Maritime shipping 21 30 19 26 13 109Road transport 18 22 20 21 24 105Health and safety at work 45 34 34 37 41 191Social policy 18 18 14 17 14 81Total 250 216 214 225 212 1,117

Source: Authors’ own database.



underachiever, and social policy and health and safety do relatively well(Figure 1).

Another way to capture cross-sectoral variation in transposition perfor-mance is by using the median delay (Figure 2). This measure confirms thecontrast between the sectors telecommunications and social policy. While 50per cent of our social policy cases are transposed at the latest one day after thedeadline, such a 50 per cent is reached in telecommunications only more thanhalf a year after the deadline. Considering that the creation of a single marketis much more central to European integration than social policy, it is remark-able that less than a third of the telecommunications directives are transposedon time, while more than half of the social policy directives are, and that themedian delay is also much higher for telecommunications than for socialpolicy.

One Explanation: Time Available for Transposition

A first explanation of the cross-sectoral variation in transposition perfor-mance is the time available for it. This explanation is based upon the ‘man-agement approach’ to compliance, in which scholars of international law start

Figure 1: Cross-Sectoral Variation in Transposition Performance (% on Time)

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with the background assumption that Member States that have decided to takepart in an international agreement are willing to comply with the agreement.Compliance problems are the result of policy ambiguity and/or lackingdomestic capacities. Accordingly, compliance problems can be ‘managed’:ambiguity can be removed, for instance, through guidelines or throughdispute resolution by courts, and capacity can be improved by technical andadministrative assistance (Chayes and Chayes, 1993; Tallberg, 2002). Itfollows from this that Member States want to comply, but the time frames fortransposition are too short to do so in a timely manner (Mastenbroek, 2003,p. 376; Steunenberg and Rhinard, 2005, p. 13; Kaeding, 2005, p. 236). Withinour database we found a large variation in the median time available fortransposition.4 On average, the EU grants about one year for directives inthe areas of telecommunications, energy, food and shipping; two years forhealth and safety at work measures; and three years for social policy (seeFigure 3).

4 We prefer the median to the mean as measure of central tendency as the distributions of relevant data(delay, available time, duration) are positively skewed (that is, a number of cases with extreme delay, timeavailable and duration).

Figure 2: Cross-Sectoral Variation in Transposition Performance (Median Delay)

0

50

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250

Median delay (days)

Telecom Energy Agriculture Food Shipping Road

Transport

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Sector




Considering these differences in time available, the timely transposition(in terms of median delay) in the sectors health and safety and social policyand the high score on delay in the sector telecommunications appear in adifferent light. The good performers have been granted, on average, muchmore time than the weak performer. Thus the high score on delay in telecom-munications, as compared to health and safety and social policy, might be dueto the tighter deadline.

A comparison between the time available and the time needed for trans-position (date of publication of directive subtracted from date of enforcementof directive) confirms this view (Figure 3). The time provided is being used.The transposition of health and safety at work and social policy directivestakes about twice as long as in almost all other sectors, but this ‘extra need’has been partly ‘factored in’ by granting directives in those areas more timeto implement.

Curiously enough, the generous amount of time left for transposition inhealth and safety and social policy is still not enough. On average, transpo-sition takes even more time than that, as we can see from Figure 3. In otherwords, notwithstanding plenty of time, there are still many delays.

Figure 3: Time Available and Time Needed for Transposition by Policy Sector

0

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800

1000

1200

Road

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Health and

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Total

Time available Time needed

Telecom Energy Agriculture Food Shipping Social Policy




The differences in the median duration of transposition between healthand safety and social policy and the others sectors is quite robust, even on alower level of aggregation, in the sense that it holds across all Member States.As Figure 4 reveals, with the exception of telecommunication directives inGermany, all five Member States took more time for the directives in ‘their’health and safety and social policy sectors than for those in ‘their’ othersectors. What is more, with the exception of telecommunications in Germanyand Greece, any of the five countries took more time for directives in the two‘social’ sectors than any of those countries for directives of any of the othersectors (see Figure 5). This indicates that apart from national specific factors,highlighted by research taking a cross-country perspective, there must also besector-specific factors at work. In other words, the duration of transpositionjuxtaposes the two ‘social’ sectors not only against telecommunications, butagainst all other sectors. The puzzle changes from ‘why are the two socialsectors doing so well?’ into ‘why are they doing so badly?’ As we will see,answering the question of why the two ‘social sectors’ are doing badly induration will also help in answering the question as to why telecommunica-tions cases perform so badly regarding delay.

Figure 4: Median Duration of Transposition for Policy Sectors within Countries

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Netherlands Germany UK Spain Greece




What Causes Sectors to Matter?

Having established that policy sectors matter – transposition performance interms of delay and duration differs substantially by sector – the question iswhy this is so. Why do sectors make a difference? The concept of ‘sector’ canrepresent quite a variety of variables: type and subject of regulation, length ofgovernment involvement in this policy field, legislative traditions, ministryresponsible, age and status of this ministry, administrative culture, structureof interest associations. The degree and nature of the involvement of Euro-pean authorities with different sectors could also vary. In some, the EU hasbeen involved already for a long time, in others only recently. Some sectorsmight ‘get’ more Council directives, others more Commission directives.

The latter argument indicates that it might be that variables, identified inearlier quantitative studies as affecting the speed of transposition per se, couldalso explain cross-sectoral variation if their distribution varies across sectors.

Figure 5: Median Duration of Transposition (Cross-National Variation within Sectors)

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Thus it has been argued that new directives take more time to implement thanmodifying directives. The prevalence of new directives may, however, differby sector. Some sectors could have a higher share of them, and accordinglywould need, on average, more time for transposition.

We will restrict ourselves here to investigating the effect of four variablesthat are relatively closely linked to the directives themselves and have provento be significant in earlier quantitative studies – namely (a) Commissionversus Council (and Council and Parliament) directives; (b) new versus modi-fying directives; (c) directives typically requiring transposition by nationallegislation and cabinet decrees versus by ministerial orders; and (d) directivestypically requiring the involvement of one ministry versus more than oneministry (that is, requiring inter-ministerial co-ordination).5

These variables can be either related to the management approach, intro-duced above, or to the enforcement approach. In contrast to the manage-ment approach that argues that non-compliance is involuntary, theenforcement approach argues that non-compliance is a deliberate choice ofMember State governments. This approach has been introduced by politicaleconomists and is informed by rational choice and game theory. Accord-ingly, Member States make a cost–benefit analysis to determine whethercompliance is in their interest. If they have an incentive to free ride, as isthe case in mixed-motive games, compliance needs to be ‘enforced’ – forinstance, by threatening penalties that offset the benefit of non-compliance(Downs, 1997; Downs et al., 1996; see also Börzel et al., 2007; Tallberg,2002).

For each variable, we will first clarify the theoretical approach to which itis related and the underlying causal mechanism. Then we will investigatewhether these factors do indeed retard transposition, and subsequentlywhether such retarding factors are more prevalent in some sectors than inothers. In the following analysis we restrict the dependent variable to durationof transposition rather than delay, as delay is also a function of the timeallotted for transposition.

Council versus Commission Directives

The first feature of directives that may affect transposition speed concernsthe underlying decision-making procedure. Council directives are adoptedby the Council, and sometimes together with the European Parliament,

5 Another factor that could have been taken into account is the nature of the directive in terms of regulatoryor non-regulatory policy (Majone, 1993) or market creating/negative and market correcting/positivepolicies (Zürn, 1997). We have considered this, but it turned out not to be feasible to translate these andsimilar concepts into unambiguous coding for our hundreds of directives.



depending on the decision-making procedure required (for example, consul-tation or co-decision). These directives generally concern major policyissues. Commission directives tend to be of a more ‘technical’ character andare adopted by the Commission based on its ‘implementing powers’ accord-ing to the treaties, or based on delegation powers provided by earlier EUlegislation. From the perspective of the enforcement approach it can bededuced that, given the technical character of Commission directives, theywill on average not meet the same degree of government opposition asCouncil directives and should therefore take less time to transpose (Kaeding,2005, p. 236; König et al., 2005; Mastenbroek, 2003, pp. 375–6; Steunen-berg and Rhinard, 2005, p. 13). Our analysis provides empirical evidence forthis view. On average, Council directives take much more time than Com-mission directives. This general relationship is rather robust, as it holds forall sectors with the notable exception of agriculture and shipping (seeAppendix, Figure A1).

New versus Modifying Directives

A similar logic as that distinguishing Council and Commission directivesalso differentiates new from modifying directives. New directives are more‘important’ in the sense that they regulate an issue for the first time/and orprovide a framework for further directives. Modifying directives typically fillin regulatory spaces left by new directives, and tend to be more specific andtechnical. In line with the enforcement approach it can be argued that newdirectives should cause more adaptation pressure or, in other words, shouldhave a worse fit with the status quo, than modifying directives and shouldtherefore result in more government resistance (Knill and Lenschow, 1998;Duina, 1999; Tallberg, 2002). Accordingly, it has been hypothesized thatnew directives take more time to transpose than modifying directives(Mastenbroek, 2003, p. 376; Kaeding, 2005, p. 236; Steunenberg andRhinard, 2005, p. 13; Haverland and Romeijn, 2007, p. 769). Our empiricalanalysis confirms this view. New directives take much more time than modi-fying directives. This holds for all sectors except agriculture and social policy.Yet, in agriculture, there are few modifying directives. Therefore, randomfactors may affect the median duration significantly, and the difference insocial policy is not very large (see Appendix, Figure A2).

National Instruments Used

Cross-sectoral variation may also be explained by variation in the kind oflegal instruments governments need to use to transpose directives in therespective sectors. This variable is derived from the management approach as



the kind of legal instruments indicate the degree to which the central govern-ment has the political capacity to control the transposition process (Tallberg,2002). The legislative procedure for laws usually involves political institu-tions beyond the central government and is more strictly bound by formalprocedural rules, and hence is likely to take more time to transpose than thelegislative procedures for cabinet decrees, which in turn should take moretime than ministerial orders. Thus sectors in which governments transposedirectives more frequently by laws or cabinet decrees than by ministerialorders may suffer from longer transposition periods (Mastenbroek, 2003, p.376; Kaeding, 2005, p. 237; Berglund et al., 2006, pp. 701–3; Haverland andRomeijn, 2007, p. 775). Again, our hypothesis is supported by the data. Onaverage, laws take more time than cabinet decrees, although the difference isnot very large and it only holds for four out of seven sectors (in agriculturethere are no directives transposed by laws). More substantial and robust is thedifference between laws and cabinet decrees, on the one hand, and ministerialorders, on the other. On average, ministerial orders take almost half the timeand also substantially less time than cabinet decrees. This relationship holdsfor six out of eight sectors, the exceptions being agriculture and shipping (seeAppendix, Figure A3).

Inter-ministerial Co-ordination

A fourth potentially relevant domestic factor that partly flows from the fea-tures of the directive is the need for inter-ministerial co-ordination. Thisfactor is again derived from the management approach as it taps into theadministrative capacity of Member States to transpose in a timely manner(Siedentopf and Hauschild, 1988; Chayes and Chayes, 1993; Tallberg, 2002;Mastenbroek, 2003, p. 376; Haverland and Romeijn, 2007, p. 774). Perhaps,some sectors are more prone to domestic co-ordination requirements thanother sectors and therefore suffer from longer transposition periods. But doesthe need for co-ordination retard transposition processes? Our data stronglysuggest that it does. Transposition processes that involve more than onedepartment take on average (median) about 130 days longer than processeswhere only one ministry is formally involved. This relationship holds for allsix sectors with cases of both groups (albeit to varying degrees; see Appendix,Figure A4).

In short, our analysis shows that the four (indirect) features of directivesslow down transposition processes and that this relationship holds by andlarge for all sectors. Accordingly, if retarding features of directives arenumerically more dominant in certain sectors, it could explain why somesectors are faster than others. So how are the features of directives distributed



across sectors? Table 2 summarizes the ‘mix’ per sector and indicates whethera retarding feature has a larger share than the overall average would suggest.The table shows a large cross-sectoral variation in the numerical importanceof certain directives’ features. Some sectors have almost exclusively Councildirectives, whereas others have a 50/50 mix. In some sectors almost alldirectives are new ones; in others almost all are modifications of existingdirectives. In some sectors a significant majority of directives are transposedby legislation and cabinet decrees; in others ministerial orders are mainlyused. Second department involvement is (at least formerly) absent in somesectors, but widespread in others.

Yet, at the same time, the features are not randomly distributed acrosssectors. Three sectors stand out as having an above average presence of allfour retarding factors (in addition to the factor time available): social policy,health and safety at work and telecommunications. This makes the longperiods needed for transposition in the two ‘social sectors’ more understand-able. At the same time, the median transposition duration of telecommunica-tions directives close to the total mean reads as a success story, given the largepresence of retarding factors. Hence from a perspective with a focus onduration, telecommunications is rather an over achiever. However, becausethe time available for the transposition of telecommunication directives isvery short, most of them are transposed after the deadline, resulting in amedian delay of more than 200 days.

II. Bringing Everything Together: A Multivariate Analysis

The analysis has focused so far on whether some variables, theoreticallyindicated as potential causes for delay, are indeed related to differences intransposition performance. The bivariate analysis may reveal that some vari-ables do not have a relationship with transposition performance; it does notprovide sufficient evidence that those variables, which are correlated to ourdependent variables, will continue to do so the moment other variables comeinto play. For this, we need a multivariate setting, in which all relevantvariables are taken into account.

We use a Cox regression model with time-independent covariates toanalyse the possible impact of the various variables discussed before. Weprefer this model to parametric models because the distributional form of thehazard function does not need to be specified. We focus on the determinantsof transposition duration as measured by the number of days after the officialrelease of a directive. Second, we only use cases for which we have infor-mation on the possible determinants of transposition duration, including



Tabl

e2:

Cha

ract

eris

tics

ofC

ases

per

Polic

ySe

ctor

Sect

orTi

me

need

ed(m

edia

n,da

ys)

Tim

eav

aila

ble

(med

ian,

days

)

Cou

ncil

/C

omm

issi

ondi

rect

ives

(%re

lati

on)

New

/mod

ifyi

ng(%

rela

tion

)N

atio

nal

inst

rum

ent

used

(leg

isla

tion

&ca

bine

tde

cree

/min

iste

rial

orde

r)(%

rela

tion

)

Seco

ndde

part

men

tin

volv

ed(y

es/n

o)(%

rela

tion

)

N

Tele

com

559

341

78/2

271

/29

70/3

031

/69

107

Ene

rgy

351

272

55/4

547

/53

59/4

117

/83

101

Agr

icul

ture

567

543

68/3

296

/451

/49

39/6

167

Food

412,

535

540

/60

47/5

340

/60

42/5

835

6Sh

ippi

ng38

135

745

/55

6/94

75/2

50/

100

109

Roa

dtr

ansp

ort

557

442

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characteristics of the domestic setting (like the kind of domestic transpositionprocess). Cases for which this information is not available are coded asmissing. Steunenberg and Rhinard (2005) argue that there is no reason toexpect that a lack of information on the transposition of some directives dueto absence of information at the EU or national levels would be the result ofa conscious choice. It is rather a reflection of the imperfection of administra-tive monitoring systems, which were not designed to systematically monitortransposition performance over time.

Table 3 presents the results for an equation using transposition duration asthe dependent variable.6 The independent variables are based on our explo-ration so far (see Table 2 for a summary). We use dummy variables for thedomestic transposition process, the different policy sectors discussed in thisarticle and the various countries involved. The dummy variables representingpolicy sectors regard the sectors mentioned in Table 2. For these, the socialpolicy directives are taken as the reference point in our analysis as thesedirectives have, as we saw before, a substantially longer transposition dura-tion, which differs from the other policy areas. For the country dummies, thebaseline is the Netherlands. In this country, transposition duration is relativelyshort, although comparable to the UK (here it matters whether one takes themedian or the mean as point of comparison).

The dummy variables for the national transposition process take theslower parliamentary process as the baseline. Unfortunately, the dummy forcabinet decision-making is closely (but negatively) related to the one for aministerial process. This is not surprising since we already noted thattransposition duration for laws and government decrees did not differ much.To avoid collinearity we only included the ministerial dummy variablein our equation (and thus take a cabinet or parliamentary process as thebaseline).7

The year of publication is a continuous variable we added to measure howlong ago a directive has been adopted. The reason is that we have theimpression that transposition performance has improved over time (see theCommission scoreboards and Berglund et al., 2006). Based on our period of

6 Although we initially started with 1,213 cases, we use 953 in our multivariate analysis. This is a result ofthe following: (a) for 207 cases we do not have information for one of the independent variables; and (b)83 cases belong to policy sectors we do not further distinguish, mainly since these sectors contain only avery small number of directives.7 We also explored whether the use of procedure, as distinguished in this article, depends on specificcountries. The use of ministerial procedures is highest in the UK (partly based on the European Commu-nities Act) followed by Greece and the Netherlands, while Germany has most decision-making by thegovernment or parliament. We investigated whether the impact of our ministerial dummy variable inter-acted with the UK and Greece (versus the other countries), but we did not find a significant effect.



Table 3: Explaining the Transposition Duration in Days

Days between publication of the directive andpublication/adoption of first national

implementing instrumentExpected sign Coefficient Standard error

Time until deadline - 0.031** 0.001Time until deadline ¥ ln(time) -0.005** 0.002Commission directive + 2.14** 0.93Commission directive ¥ ln(time) -0.34** 0.15New directive - -0.11 0.08Ministerial decision-making + 13.2** 1.48Ministerial decision-making ¥ ln(time) -2.02** 2.13Second department involved - 4.21** -1.06Second department involved ¥ ln(time) -0.67** 0.16Year of publication - -0.39** 0.18Telecom dummy 0 29.3** 2.25Telecom dummy ¥ ln(time) -4.43** 0.33Energy dummy 0 27.6** 2.45Energy dummy ¥ ln(time) -4.17** 0.37Agriculture dummy 0 12.8** 3.54Agriculture dummy ¥ ln(time) -1.88** 0.54Food dummy 0 22.9** 2.12Food dummy ¥ ln(time) -3.43** 0.31Shipping dummy 0 26.2** 2.06Shipping dummy ¥ ln(time) -3.99** 0.30Road transport dummy 0 22.8** 2.47Road transport dummy ¥ ln(time) -3.46** 0.37Health and safety at work dummy 0 -0.17 0.18United Kingdom 0 2.68** 1.34United kingdom ¥ ln(time) -0.40** 0.21Germany 0 16.3** 1.66Germany ¥ ln(time) -2.50** 0.25Spain 0 12.3** 1.38Spain ¥ ln(time) -1.93** 0.22Greece 0 4.16** 1.49Greece ¥ ln(time) -0.65** 0.23

Wald Chi2 1151.0df 31N 923

Source: Authors’ own database.Notes: **Significant at the 5 per cent level; * significant at the 10 per cent level. The decision-makingdummies are measured against parliamentary decision-making. The policy dummies are measured againstsocial policy directives, which take most time in our data set.



observation, this continuous variable has a maximum value of 1 if a directivewas published in 1978, decreases by each additional year, and becomes 0 if itwas published in 2002.

In applying the Cox model, we used the Breslow method for handling tiesand estimating the partial likelihood function. We tested whether our analysissatisfies a key assumption of the conventional Cox regression model – thatis, the proportional hazards assumption. We did find indications that thisassumption was violated. These violations suggest that we need to specify amodel that can deal with these non-proportional effects. We used a new modelin which we added time-dependent coefficients for the covariates involved.These coefficients are interaction terms between the original covariate and thenatural logarithm of time (that is, ln(t)). The natural logarithm is used sincethis transformation improved the overall performance of our model.

Table 4 presents the estimated coefficients for the covariates and,between brackets, their standard error. The interpretation of the covariatesthat are related to time is less straightforward than for a model withoutinteraction terms since the impact of a covariate on hazard is now a com-bination of its time-independent and time-dependent coefficients. Theimpact of a covariate for which we estimated a time-dependent coefficienttherefore depends on the values of the time-independent and the time-dependent coefficients, as well as time (see Steunenberg and Kaeding,2009). For example, the time-independent coefficient for the time until thedeadline (which equals 0.031) can be regarded as a fixed amount fromwhich the time-dependent coefficient (which in this case is –0.0047) takes asmall amount per day that has passed. After the passing of, for example, 120days, the combined coefficient is 0.031 - 0.0047 ¥ ln(120) = 0.008. In otherwords, at 120 days, the allocated time to transpose the directive has a posi-tive, speeding up effect on transposition. However, the time-dependent coef-ficient is negative, so this effect is decreasing. As we can see from Table 4,the combined coefficient becomes smaller and eventually turns into a nega-tive, delaying effect. In a similar way, the standard error of the new, com-bined coefficient also varies in time, which affects significance. We thereforepresent in Table 4 these combined coefficients and their significance fordifferent moments in time.

Other findings are that the amount of time granted to transpose a direc-tive has, as expected, a positive impact on transposition duration. However,this effect rapidly disappears as time goes by. After 270 days this effect isno longer significant. Furthermore, a Commission directive is indeed easierto transpose, at least at the beginning of the transposition process. After 290days, however, this effect disappears as the coefficient becomes insignifi-cant. From 770 days on, Commission directives have a negative, delaying



Tabl

e4:

The

Impa

ctof

Tim

e-D

epen

dent

Coe

ffici

ents

Tim

ein

days

120

260

400

540

680

820

960

1100

1240

1380

1520

Stan

dard

devi

atio

nsfr

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ean

-1-0

.75

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-0.2

50

0.25

0.5

0.75

11.

251.

5

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tilde

adlin

e0.

008*

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0.00

20.

001

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02-0

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03-0

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04(0

.002

)(0

.003

)(0

.003

)(0

.003

)(0

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.003

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56**

-0.2

97**

-0.3

34**

-0.3

67**

(0.2

38)

(0.1

35)

(0.0

87)

(0.0

70)

(0.0

73)

(0.0

86)

(0.1

02)

(0.1

17)

(0.1

31)

(0.1

45)

(0.1

57)

Min

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*0.

551*

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0.39

60.

235

0.16

20.

131

0.13

00.

143

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30.

184

0.20

40.

224

0.24

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89*

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94**

-0.6

66**

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31**

0.28

20.

169

0.11

90.

100

0.10

10.

111

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50.

140

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50.

169

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2Te

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751*

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422*

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59**

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60**

0.69

90.

466

0.34

90.

282

0.24

60.

231

0.23

10.

239

0.25

40.

271

0.28

9E

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mm

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664*

*4.

439*

*2.

642*

*1.

391*

*0.

429*

-0.3

52-1

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**-1

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**-2

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**-2

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**-2

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**0.

714

0.45

70.

335

0.27

40.

252

0.25

40.

270

0.29

20.

318

0.34

30.

369

Agr

icul

ture

dum

my

3.80

8**

2.35

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1.53

9**

0.97

4**

0.53

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0.18

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67-0

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*-0

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0.61

90.

408

0.27

80.

208

0.19

30.

219

0.26

10.

308

0.35

40.

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3.84

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2.37

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1.34

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0.55

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648

0.42

80.

319

0.25

90.

228

0.21

80.

222

0.23

30.

249

0.26

70.

286

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ping

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3.95

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2.23

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1.03

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0.11

8-0

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**-2

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**-2

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**-3

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645

0.44

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341

0.28

80.

261

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20.

254

0.26

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275

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305

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717

0.45

90.

338

0.27

90.

259

0.26

30.

280

0.30

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329

0.35

60.

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ted

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125

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462

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0.36

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220

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166

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205

0.22

50.

243

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416

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178

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10.

131

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80.

153

0.17

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191

0.20

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effect on transposition, as is indicated in Table 4. It seems also that Com-mission directives sometimes include difficult cases, which, when sometime has passed, mitigates the initial beneficial effect and leads to a slowingdown of transposition. Contrary to our bivariate analysis, however, newdirectives do not have a significant effect, so it does not seem to matterfor the domestic authorities whether they transpose a new or modifyingdirective.

We also find that a ministerial process reduces the duration of a trans-position process substantially at the beginning. If transposition is, for somereason, further prolonged, the speeding up impact of a ministerial processbecomes less and reduces to a marginal speeding up effect, which becomesinsignificant at about 640 days. However, from 800 days on, the dummyvariable has a significant but delaying effect. In other words, the speedingup impact of a ministerial process wears off compared to parliamentary orcabinet decision-making and in the end has a delaying impact on duration.

The change in impact of this variable could be a result of limited interestin some directives, at least in some countries. While cabinet or parliamen-tary decision-making involves other possible stakeholders, a ministerialprocess involves the least number of decision makers.8 As often argued,especially in the veto player literature, this can be regarded as a beneficialfeature increasing decision-making speed (Haverland, 2000; Tsebelis,2002). However, as we found in this study, limited involvement of other andespecially political actors such as leading politicians in the government orpolitical parties in parliament may also coincide with limited interest in thetransposition of a directive. And this may, in some cases, lead to substantialdelay. So the number of stakeholders as suggested by the veto player litera-ture is not a sufficient explanation for the speed of transposition and needsto be supplemented with other factors (see also Steunenberg, 2007).

The year of publication is significant and reduces transposition duration.This means that the likelihood of transposition is lower for older directivescompared to more recent ones (up to 2002). It may well be that the awarenessof the importance of transposition and/or the monitoring of the MemberStates’ performance have changed over the years producing a shorter durationof transposition. This opens a new direction for further research.

Finally, most of the dummy variables for a policy area are significant.Based on our choice of social policy directives as the reference point, thecases of transposing directives in the areas of telecommunications, energy,agriculture, food, shipping and road transport differ. Furthermore, the

8 We checked whether this dummy variable also interacts with the UK and Greece (see Note 7), but did notfind an effect.



time-dependent pattern is that these dummy variables have a strong posi-tive, speeding up effect at the beginning of the transposition process, whichdecreases and disappears in a period of about two years (approximately680–820 days; see Table 4). After some time, the dummy variables havenegative coefficients, which suggest a delaying effect on transposition. Thisis perhaps the result of the fact that all policy areas are sometimes facedwith difficulty in transposing directives, which contribute to the overalldelay in that sector. At the same time, the initial speeding up effect, whichis particularly substantial in areas such as telecommunication, energy andshipping, suggests that substantial differences in these sectors exist com-pared to the others, which cannot be explained by differences in the distri-bution of general retarding factors, such as time available, new versusmodifying and the control variable year of publication. We also note thatthe dummy variable for health and safety at work is not significant, whichsuggests that these directives are comparable to the social policy directives,which we took as our reference point. In other words, the results suggestthat there is a sector-specific impact in these areas – in contrast to theother areas including social policy – which are not captured by our generalvariables.

We also looked at the remaining impact of Member States and found thatdummy variables differ significantly compared to the Netherlands, which istaken as the point of comparison. The time-dependent patterns for the variouscountries differ somewhat. In the case of the UK, we note that it only has apositive coefficient in the first part of the transposition process (up to about500 days), which indicates that the UK is relatively faster than the Nether-lands. After 500 days this effect disappears. For Germany, Spain and Greece,a similar but less pronounced effect occurs, but these countries all are sig-nificantly slower than the Netherlands after 650 to 870 days. Especially in thecase of Greece, the coefficients rapidly decrease with time, suggesting asubstantial slowing down effect with time.

Conclusions

In this article we have presented some findings of a larger-scale study com-paring the transposition performance of five different countries in eight dif-ferent policy sectors. The analysis shows, first of all, that transposition is areal problem. In only about 40 per cent of the 1,117 transposition cases in ourdatabase were the directives transposed in time; 10 per cent were delayed bymore than two years. These cases violate the zero-tolerance objective of theEU of having no such delays.



Second, policy sectors seem to matter. The variation in duration and delaydiffers substantially between sectors, contrasting in particular the two socialpolicy sectors with the other sectors concerning duration, and social policywith telecommunications concerning delay. Our bivariate analysis suggeststhat cross-sectoral variation in duration and delay is explained first of all bya rather mundane cause: different amounts of time given for transposition bythe European authorities. Where deadlines were longer, the share of cases ontime was comparatively higher. Yet, even where deadlines were compara-tively long, as in health and safety at work and social policy, countries stillneeded even more time than the relatively ‘generous’ amounts provided.

However, third, our bivariate explorations also suggest that cross-sectoraltransposition performance differences can partly be explained by an unequaldistribution over sectors of variables that have been identified in earlierstudies to affect duration and delay. Sectors with a relatively high percentageof Council directives (as against Commission ones), new (as against modi-fying) directives and directives that required transposition by law (rather thanministerial order) need more time and experience delays more often.

Fourth, our multivariate analysis confirms that modifying directives andthe use of a ministerial decision-making process in the national arena improvethe transposition performance, if controlled for the other features of thedirective and a number of control variables. However, our multivariate analy-sis also indicates that the uneven distribution of retarding or acceleratingfeatures of directives cannot explain all of the sector variation. Based on ourchoice of dummy variables indicating the various policy sectors, we find thatthe transposition of directives in telecommunications, energy and shippingpolicies differs significantly from those in fields such as social policy andhealth and safety at work, even after controlling for the above-mentionedfeatures of directives.

In addition, we would like to draw attention to the time-dependent effectof our variables. We noted that the speeding up or delaying effect of most ofour variables is not constant over the time of transposition. The transpositionof Commission directives is indeed easier, but only for an initial period oftime. The use of ministerial processes to transpose directives also has abeneficial impact on transposition, but this effect disappears after aboutone-and-a-half years. The importance of time to transposition, which has alsobeen noted by Steunenberg and Kaeding (2009), suggests that we need tofurther explore the link between social processes and time.

Significant cross-sector variation casts doubts on the generalizability ofstudies, which focus on transposition in one specific policy area, such as thatof Falkner et al. (2005). Sectors differ systematically. They show ratherdifferent transposition performances and have different institutional and



regulatory characteristics. No single sector can be considered representativefor transposition of EU directives in general. It may be that Falkner and othershave identified different practices typical for different country clusters toexplain transpositions differences; their observations only stem from prac-tices in one policy sector. It is not clear how the inter-country differencesnoted by Falkner and others are related to inter-sectoral differences noted inthis article. Comparing different sectors, we found that social policy might beone of the least likely candidates to generalize from to national worlds ofcompliance. First, social policy directives (and health and safety ones) areoutliers, with long deadlines and, on average, even more time needed fortransposition (all Member States take more than 800 days to transpose them).Because of the longer transposition period allowed by the official deadline,social policy also scores highest on the number of directives transposed ontime, and shows the lowest median delay.

Our research, seeking to unravel the puzzle of significant variation acrosspolicy sectors, is preliminary in the sense that we have focused on the unequaldistribution of general (indirect) features of directives across sectors as expla-nation. The significance of three sector dummy variables reveals that ourgeneral variables are only able to explain variation across five of our eightsectors. More research is needed to identify remaining variables that help usto understand cross-sectoral variation.

It is important to note that both our study on cross-sectoral variation andstudies on cross-national variation operate on the macro-level of aggregation.Both types of studies provide for interesting puzzles that need to be solved bysector-specific and, inter alia, country-specific variables. However, disaggre-gating our data to the country/sector unit of analysis reveals striking variationon this meso-level as well (see Figures 4 and 5). This suggests that it is alsoimportant to look at factors specific for this unit of analysis. Promisingstarting points might be cross-sectoral variation within countries concerningadministrative traditions, dominant professions, political priorities, the natureof regulation, ministerial traditions as to involving interest associations, andthe co-ordination structures within departments and between policy and legalaffairs units.

Correspondence:Markus HaverlandDepartment of Public AdministrationSchool of Social ScienceErasmus University RotterdamPO Box 1738, 3000 DR Rotterdam, The Netherlandse-mail [email protected]



Appendix

Figure A1: Transposition Duration of Council and Commission Directives by Sector

0

200

400

600

800

1000

1200

Median duration (days)

Total Telecom Energy Agriculture Food Shipping Road

Transport

Health and

Safety

Social

Policy

Council directives Commission directives


Figure A2: Transposition Duration of New and Modifying Directives by Sector

0

200

400

600

800

1000

1200

1400

Median delay (days)


Transport

Health and

Safety

Social

Policy

New directives Amending directives




Figure A3: Transposition Duration by Legal Instrument and Sector

0

200

400

600

800

1000

1200



Transport

Health and

Safety

Social

Policy

Law Cabinet Decree Ministerial Order


Figure A4: Transposition Duration by Inter-ministerial Co-ordination and Sector

0

200

400

600

800

1000

1200



Transport

Health and

Safety

Social

Policy

More than one department involved One department involved




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Sectors at Different Speeds: Analysing Transposition Deficits in the European Union*

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