Working Title: When Progressive Law Hits Home: The Race and Employment Equality Directives in Austria, Germany and Spain

Transcription

1 Juan Casado-Asensio Insitute for Advanced Studies Department of Political Science Dissertation Outline Working Title: When Progressive Law Hits Home: The Race and Employment Equality Directives in Austria, Germany and Spain Context: Transposing European Union (EU) law is crucial for the effective functioning of the common market, the even application of the law in all member states, and the intensity of policy assimilation in Europe. The transposition process also determines the contents of European policies as they will be perceived by EU citizens (Dimitrova and Rhinard 2005: 1), and therefore the extent of Europeanisation. Unsurprisingly, non-transposition or untimely and/or incorrect transposition is a serious breach of European law, potentially leading to financial sanctions imposed by the European Court of Justice (ECJ). Despite the possibility of being penalised, the transposition performance of the member states is often riddled with delays and/or incorrectness. In the area of social policy, for instance, there is now evidence of various worlds of compliance (Falkner et al. 2005: 318). Similar differential transposition patterns are frequently observed in other EU policy fields (Héritier et al. 2001) across Europe. Understanding and explaining these patterns belongs to the core research interests of scholars in the field of transposition studies. The area has analysed both cases of delayed and/or incorrect transposition, and situations of correct and timely transposition. It is as important to understand why, how and when transposition fails, as to understand the conditions rendering it successful. Specifically, scholars have repeatedly asked: What explains differential transposition patterns in the EU? Why is it so often a delayed and incorrect process? Which factors delay, block or accelerate transposition? What leads to transposition correctness, change and/or over-implementation? These are also the research questions I pose in my Dissertation project. Theoretical Framework and Case Selection: A catalogue of variables potentially influencing transposition outcomes already exists (see Falkner et al. 2005: 11-40). Recent quantitative and qualitative studies, however, challenge the explanatory capacity of most of these variables (see again Falkner et al. 2005: or Mastenbroek 2005: ). Traditional approaches have neglected the level of domestic politics (Bulmer 1983, Mair 2004: 345, Falkner et al. 2005: 344-5). Moreover, these approaches seem inadequate to study the transposition processes of European Community (EC) directives with a prominent normative dimension (Dimitrova and Rhinard 2005: 3). Indeed, transposition studies have typically focused upon areas with a marked regulatory character, such as environment or transport, where material considerations prevailed over normative. The EU has even been characterised as a regulatory state (Majone 1996). Still, recent developments in EC legislation in the areas of social policy (anti-discrimination, maternity leave) or environmental and research policy (bio-technology legislation, food safety), require the use of a new set of tools better adapted to study the transposition of such instances of progressive law. A better understanding of the transposition process of such directives, taking a domestic politics perspective, can contribute to recent theoretical debates encountered in the discipline of EU studies. These debates revolve around the explanatory powers of the different variants of new institutionalism. Transposition has usually been studied using a rational choice institutionalist toolkit, better adapted to the study of highly regulatory directives and the material preferences of domestic actors. However, a rational choice approach is inadequate

2 to study the transposition of progressive law and norm-driven action. My Dissertation starts from the assumption that in such transposition cases, the differential patterns observed across the EU can be best explained using rational choice and sociological institutionalism. Both can explain more variance in transposition outcomes than when they are applied independently. To illustrate these points, I study the transposition process of two EC Anti-Discrimination Directives in three EU member states. In December 2000, the EU took an important legal step in the fight against discrimination by passing two Anti-Discrimination Directives (ADDs), Directive 2000/43/EC 1 also known as the Race Directive (RD) 2, and Directive 2000/78/EC 3 commonly referred to as the Employment Equality Directive (EED). While the RD prohibits discrimination on the grounds of race or ethnic origin in employment and access to services; the EED bans any form of discrimination in employment based on age, disability, religion/belief and sexual orientation. I study the transposition of the ADDs in Austria, Germany and Spain. Hypotheses and Methods: 1. Rational Choice Institutionalist Block I derive my first block of hypotheses from rational choice institutionalism and the concepts of power and influence in the domestic political arena. My first hypothesis focuses upon the material preferences of veto players. I compare the fit between their material preferences and objective EC requirements to see how this affected the transposition process. A greater misfit between veto players material preferences and objective EU requirements increases the likelihood of transposition delay and/or change. When several veto players are present in a polity, bargaining strategies and the need to satisfy the preferences of all veto player partners affects transposition outcomes. Depending on the direction of the mismatch this may mean a watering down of the provisions of the directive or, on the contrary, over-implementation. The intensity of the mismatch also influences the timing of transposition. Hence, H1 is: H1: The higher the mismatch between the material preferences of veto players and objective EC requirements, the higher the probability of transposition delay and/or change. To operationalise this hypothesis, I firstly look at the objective material requirements of a given directive, by analysing its contents and referring to expert documents and Commission notes. Secondly, I analyse the objective domestic level of total misfit. The most thorough operationalisation of the concept of misfit is provided by Gerda Falkner and her collaborators (2005). Thirdly, I map the number of actors involved in the process of transposition and proceed with the recognition of their material preferences. To reckon the number of veto players of a system, I resort to the operationalisation of George Tsebelis (1995, 2002). Fourthly, I look at the material preferences of veto players. To a large extent, this implies analysing their interpretation of both objective material requirements contained in the EC directive and the objective level of domestic misfit. These preferences can be identified through expert interviews and the analysis of newspaper articles, internal documents, expert documents, Commission monitoring reviews, public speeches and statements. Finally, I compare them with the objective material requirements contained in a directive to explain transposition outcomes. The possibility of veto players being influenced by other domestic actors during transposition ( open veto players ) sheds light to the role of interest groups, supranational organisations and other domestic actors, such as parliaments or parties in opposition. The influence of these actors over domestic veto players can acquire important levels. Fabio Duina (1997) 1 OJ L 180, , 22 2 The term Race Directive is commonly used in the literature and by the European Commission, despite its various shortcomings (Chopin 2000, Bell 2002, Frey 2004 or Geddes and Guiraudon 2004). 3 OJ L 303, , 16.

3 claims that transposition timing depends on the fit between the requirements of EC directives and the preferences of interest groups. Similarly, Tanja Börzel distinguishes between push and pull factors that can force a reluctant veto player to transpose a directive (2003). Among the factors pulling from below are inter alia interest groups (Börzel 2003: 36), but this analysis can be extended to other influential actors. Indeed, Christoph Knill and Andrea Lenschow (2001) refer to the possibility of having a supportive actor coalition during the implementation of a directive. Though strong domestic mobilisation in favour of correct transposition is important when veto players are reluctant; when they are willing, weak domestic mobilisation may also be an important condition for adaptation. This happens because not all influential actors facilitate transposition, some have informal blocking powers (Héritier 2001) and opposing actor coalitions (Falkner et al. 2005) also exist. Indeed, domestic influential actors may cooperate or compete for influence over veto players and to reflect their preferences in the transposed law. When veto players are open, the preferences of these influential actors are of relevance too. Veto players may pick up elements from these actors to match EU requirements and at the same time satisfy them. The second hypothesis therefore tests whether transposition outcomes were influenced by these actors. Here I look at the match between the material preferences of influential actors and objective EC requirements: H2: In the presence of open veto players, the lower the match between the material preferences of influential non-veto players and objective EU requirements, the higher the likelihood of transposition delay and/or change The possibility of delays, when mismatches are high, is higher than before when veto players and influential actors do not share the same material preferences. Similarly, transposition change can also be expected when the mismatch is high and influential actors do not share the same material preferences as veto players. The nature and number of these influential actors can be found by applying the method of process tracing. Then, I refer to the previous analysis of objective EC requirements and total misfit levels and compare them to the material preferences of influential actors, elucidated through expert interviews and the study of related documents. 2. Sociological Institutionalist Block Directives can also be regarded as sets of European norms. Norms are single standards of appropriate behaviour for actors with a given identity and with an element of shared moral assessment (Finnemore and Sikkink 1998: 891). EC directives are similar to norms embedded in international treaties and organisations (Dimitrova and Rhinard 2005: 2). EU law is conceived not as a sui generis matter, the esoteric stuff of lawyers, but as one type of institution, or normative structure that interacts with other rule systems (e.g. culture, social norms) to shape outcomes (Stone Sweet 2004: 5). In this case, the possibility of norm-driven action is neglected using rational choice institutionalism. A norm-based approach contributes to explaining transposition delay and change because the domestic norm context can be disrupted by the arrival of new European norms in the form of a directive. When norms approach the domestic norm set, they have to fit into the nested hierarchy of norms already existing within a society (Johnson 1998: 399). In other words, what is at stake is the compatibility between norms enshrined in a directive and the domestic norm context, which embodies the preferences of domestic actors. In the study of norm compatibility, the focus lies on how European norms relate and interact with different domestic norms (Dimitrova and Rhinard 2005: 2). When a directive challenges the existing domestic policy approach and how programs ought to be administered and laws to be structured, the analysis is taken to the normative level: H3: The higher the incompatibility between domestic normative contexts and the norms contained in EC directives, the more likely transposition delay and/or change

4 Here I look at the norms contained in a given EC directive, draw normative indicators and compare them to the domestic normative context. The operationalisation and identification of norms implies checking which norms are embedded in legal texts or frameworks such as constitutions, legal frameworks and policy output, as well as public debates captured through public opinion polls and echoed by the press. Depending on the normative level, as explained by Peter Hall (1993) and Antoaneta Dimitrova and Mark Rhinard (2005), the analysis is taken to different arenas. When norms are incompatible domestic actors react to the process of norm transmission, where transposition delays and change can be expected, and which is followed by a process of norm change. Consequently, the organisational capacity slows down, and the member state is likely to miss the transposition deadline set by the directive. The analysis starts with the study of the objective compatibility between domestic norms and incoming European norms. When a norm has been identified, I evaluate its robustness (Legro 1997) by looking at its specificity, durability and concordance. I focus on the relevant community or arena where the norm should play a role and study how the incoming norms are perceived by domestic actors. Of course, the main focus lies upon veto players but the presence of open veto players renders the analysis of the normative interpretations of influential actors important too. Data on normative preferences is gathered through expert interviews, the content analysis of relevant documents and the study of public discourses. The types of appropriateness arguments emerging from this analysis should be of the kind: this is not the way we do things, or this is something completely new for us. Bibliography Bell, Mark Anti-discrimination Law and the European Union. Oxford University Press: Oxford. Börzel, Tanja Improving Compliance through Domestic Mobilisation? New Instruments and the effectiveness of implementation in Spain, in Christoph Knill and Andrea Lenschow (eds.), Implementing EU Environmental Policy: New Approaches to an Old Problem, Manchester: Manchester University Press, pp Bulmer, S Domestic Politics and EC Policy-making. Journal of Common Market Studies, 21(4): Chopin, Isabelle 'Possible Harmonisation of Anti-Discrimination Legislation in the European Union: European and Non-Governmental Proposals', European Journal of Migration and Law 2: Dimitrova, Antoaneta, and Rhinard, Mark (2005). 'The Power of Norms in the Transposition of EU Directives', European Integration Online Papers (EioP)(16). Available Online at: Hall, Peter A Policy Paradigms, Social Learning, and the State. Comparative Politics 25 (3): Falkner, Gerda, Oliver Treib, Miriam Hartlapp and Simone Leiber Complying with Europe: EU Harmonisation and Soft Law in the Member states. Cambridge: Cambridge University Press. Finnemore, Martha and Kathryn Sikkink International Norm Dynamics and Political Change, International Organization 52, 4, Frey, Volker 'Antidiskriminierung: Arbeitsmarktpolitische Institutionen und Massnahmen auf dem Prüfstand', Wirtschaft und Gesellschaft 30(4):

5 Geddes, Andrew and Guiraudon, Virginie 'Britain, France, and EU Anti-Discrimination Policy: The Emergence of an EU Policy Paradigm', West European Politics 27(2): Héritier, Adrienne, Dieter Kerwer, Christoph Knill, Dirk Lehmkuhl, Michael Teutsch and Anne- Cécile Douillet Differential Europe: The European Union Impact on National Policymaking. New York: Rowman & Littlefield. Knill, Christoph and Andrea Lenschow Coping with Europe: the impact of British and German administrations on the implementation of EU environmental policy, European Journal of Public Policy, pp Legro, Jeffrey W Which norms matter? Revisiting the failure of internationalism. International Organization 51(1): Mair, Peter The Europeanization Dimension, Journal of European Public Policy 11(2): Majone, Giandomenico Regulating Europe. London: Routledge. Mastenbroek, Ellen EU Compliance: Still a Black Hole?, Journal of European Public Policy 12(6): Stone Sweet, Alec The judicial construction of Europe. Oxford ; New York: Oxford University Press. Tsebelis, George 'Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism', British Journal of Political Science 25( ). Tsebelis, George Veto Players: How Political Institutions Work. New York: Sage.