Aim and content of the Directive

The general aim of the Young Workers Directive is to protect young workers from work involving dangerous or harmful employment conditions. To this end, it seeks to prohibit child labour, strictly to regulate and protect the work done by adolescents, and to ensure ‘that young people have working conditions which suit their age’ (Article 1). In order to achieve these goals, the Directive comprises thirteen compulsory minimum standards. They fall into standards relating to the area of occupational health and safety more narrowly understood, and into provisions belonging to the field of employment rights defined in a wider sense.

1. With regard to the former, the Directive (Article 6.1) imposes a general duty on employers to ‘adopt the measures necessary to protect the safety and health of young people’ working in their establishments.

2. More specifically, employers are required to carry out an assessment of the potential risks to young people before the actual take-up of work and each time there is a major change in working conditions.

3. If this assessment reveals any risk to young people, the employer has to provide for a free assessment and monitoring of their health at regular intervals. Such a free health check-up also has to be granted to adolescents working nights, both prior to the assignment and at regular intervals thereafter.

This book is the result of intensive teamwork over a couple of years. Funded by the Max Planck Society, a research group on 'New Governance and Social Europe: Minimum Harmonisation and Soft Law in the European Multi–level System' was established at the Cologne-based Max Planck Institute for the Study of Societies. We are grateful to the Institute's Directors, Fritz W. Scharpf (until 2003) and Wolfgang Streeck, for their support of our work. From October1999 to September 2003, the research team collaborated face-to-face in Cologne. Co-operation has been continuing ever since then, with e-mails and phone calls serving to bridge the physical gap between the team members, who have all moved on to new jobs in different places all over Europe.

Directed by Gerda Falkner, the group of collaborators included three doctoral students who wrote their dissertation theses on specific aspects within the group's common theme. In his doctoral thesis, Oliver Treib examined the transposition of EU Directives. Focusing on Germany, the Netherlands, Ireland and the UK,he sought to establish the relative significance of the amount of policy misfit vis-à-vis other explanatory factors in determining domestic transposition performance (Treib 2004). After completing his thesis, he continued to work in the project team as a postdoctoral researcher. Miriam Hartlapp's dissertation analysed the transposition process and the enforcement structures in the southern and francophone member states, and the European Commission's enforcement policy (Hartlapp 2005).

Aim and content of the Directive

Following the arrangement on parental leave, the Part-time Work Directive was the second EU social policy measure that stemmed from a framework agreement drawn up by the European-level social partners UNICE, CEEP and ETUC. Like its predecessor, the Directive rendered the social partner agreement generally binding without changing the substance.

The general aim of the Part-time Work Directive is twofold. On the one hand, it aims to ‘provide for the removal of discrimination against part-time workers and to improve the quality of part-time work’, while on the other hand it seeks to ‘facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time’ (clause 1). Hence, the agreement combines classical social aspirations (to outlaw discrimination against part-time workers and to improve their working conditions) with a wider economic objective (to improve the flexibility and performance of the labour market by stimulating the use of part-time work).

The Part-time Work Directive lays down one broad compulsory minimum standard. It stipulates that with regard to working conditions, part-time workers may not be treated less favourably than comparable full-time workers unless such unequal treatment is objectively justified. Where appropriate, the benefits of part-time workers are to be determined on a pro rata temporis basis (clause 4).

Aim and content of the Directive

The Directiveon an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship will be referred to in this chapter as the ‘Employment Contract Information Directive’. Its general aim, according to the explanatory considerations preceding the main part of the legal text, is to ‘provide employees with improved protection against possible infringements of their rights and to create greater transparency on the labour market’ (Consideration no. 2).

There is therefore a dual purpose to the Directive, one aspect being social (increasing the legal security of workers) and one economic (better flow of information on working conditions). Greater flexibility of labour markets affects not only the individual member state, but also the Common European Market: ‘in the case of expatriation of the employee, the latter must, in addition to the main terms of his contract or employment relationship, be supplied with relevant information connected with his secondment’ (Consideration no. 10; for details, see Article 4 of the Directive).

Hence the compulsory minimum standards of the Employment Contract

Information Directive comprise six specific rules:

1. that the workers are to be informed on essential aspects of the work or employment relationship;

2. that the information must be given in written form;

3. that expatriate employees should receive additional information;

4. that any change of contract is to be notified in writing;

5. that all employees who consider themselves wronged through failure to comply with the Directive may pursue their claims effectively;

In the previous chapters, we have analysed the domestic impact of our six Directives in detail and we have provided an overview of a number of other aspects of the implementation process, notably the voluntary reforms that were prompted by the Directives, the EU Commission's policy against non-compliant member states, and the effect of the Directives on domestic patterns of state-society relations. In this chapter, we will provide a cross-country, cross-Directive summary of the adaptation requirements that had to be overcome and of the implementation outcomes finally reached.

Costs and overall misfit in comparative perspective

The system of categorising costs outlined in Chapter 2 is indicative of the maximum potential costs for our six Directives outlined in Table 13.1 (with the numbers referring to the cost categories listed in Chapter 2).

The only Directive in our sample that is marked by a potential for comparatively much higher long-term costs is the Parental Leave Directive since more men might take up their right in the future. We did not take this into account in our analysis of factors that potentially affect the transposition performance, since the interviews revealed that politicians and experts either did not regard the longer-term perspective as likely to diverge significantly from the present or did not include this in their short-term evaluation.

What were the costs that our six Directives actually created in the fifteen EU member states? Table 13.2 lists the four potential levels of costs and the number of cases found in each.

This chapter discusses in detail the hypotheses on the reasons for implementation success or failure which we derived from the existing literature as well asa number of new ones which we formulated on the basis of our own theoretical considerations (see Chapter 2). We argue that the ‘upstream phase’ (i.e. features of the decision-making process which leads to the adoption of a Directive) has only a limited impact on the ‘downstream phase’ of adaptation at the national level. Furthermore, we highlight the differential impact of domestic factors in EU policy implementation. The analysis reveals that no single overriding variable may account for the transposition performance of member states, but that we need to look at the interaction of several factors. As the next chapter will show in more detail, the relevant combinations of factors and the logic of their interplay vary fundamentally in different country clusters.

Implementation problems as a result of ‘opposition through the backdoor’?

According to an intergovernmentalist view of European policy-making, the preference formation processes of the lower-level polity and the higher-level polity are clearly distinct. This implies that in cases where a national government is unsuccessful in ‘uploading’ its own preferences at the EU level as the template for the joint measure or standard, it will try to resist during the ‘downloading’ process, i.e. later at the implementation stage. Hence, in those cases where there is no national objection to a specific measure during decision-making at EU level, implementation should be unproblematic.

It is difficult to find a book on compliance that would not refer to Louis Henkin's How Nations Behave, citing his classic observation: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” A second disciplinary observation by Henkin is a bit less well known: “The student of law and the student of politics … purport to be looking at the same world from the vantage point of important disciplines. It seems unfortunate, indeed destructive, that they should not, at the least, hear each other.” Together, these two quotes point directly to the core of this book. Law and Governance in Postnational Europe: Compliance beyond the Nation-State discusses the sources of compliance and non-compliance with legal rules. It originated from an interdisciplinary project that involved both vantage points: law and politics.

And it took its time. Back in 1997, Christian Joerges, a lawyer focusing in his research on European and international economic law, asked Michael Zürn, a political scientist focusing on international relations, to join the Center for European Law and Policy (ZERP) at the University of Bremen. Since then we have been continuously engaged in comparing and discussing the perception of law by legal and political science. That co-operation led to a project submitted to the Deutsche Forschungsgemeinschaft (DFG) as part of the program on Regieren in Europa (Governance in Europe). The funds we received were used to bring Jürgen Neyer and Dieter Wolf on board this project.

Is law beyond the nation-state possible? Does compliance in horizontal settings work sufficiently well? What are the building blocks for a successful elicitation of compliance beyond the nation-state? What is special about the EU in this respect? These questions have guided our study. In this chapter we discuss the empirical findings of our study, some lessons in designing institutions to achieve high rates of compliance, and some special features of the EU as a polity. In the first section, we reject the principal hypothesis that reliable law and legal equality can be expected only within a national setting. The next section discusses in detail how different theoretical perspectives on compliance contribute towards understanding successful compliance beyond the nation-state. In addition, we argue that the interactive effects between variables from different theoretical perspectives are decisive in understanding compliance records. Finally, we discuss the practical and theoretical implications of our findings.

The winner is: The EU

The preceding chapters report the findings of three sets of comparisons. In each set, regulations are compared that are located at different political levels but are of very similar content and type. By keeping the policy type and the underlying interest structures more or less constant, we studied the effects of different political settings on rule compliance. Regulations on the control of subsidies have been formulated by the WTO and by the EU as well as within Germany. Redistribution among territorial units is institutionalized in both the EU and Germany.

Da mihi facta, dabo tibi ius? Introductory observations on an interdisciplinary agenda

“Compliance is not a legal problem.” This is the traditional view of lawyers, which is by no means simply naive. Lawyers know of course about the problems of enforcement and the risks of litigation. But they are trained to find out whether some behavior is legal or illegal and they are paid to give good reasons that militate in favor of their client's viewpoints and interests. They can act on the assumption that no one will question that the enforcement of valid law in a Rechtsstaat is a matter of course, which is not susceptible to legal arguments and is hence beyond their professional responsibility. Compliance is something policemen, bailiffs and politicians should somehow ensure.

What is true for practicing lawyers is also true in legal academia. Research on compliance problems does not concern the validity of law and its normative contents. Such research could therefore be assigned to legal sociology – not a proper legal discipline. International law, however, has a different story to tell. In the account of Koh (1997), the issue of compliance constitutes the core problem of international law. The apparent contrast with the traditional perception of national legal systems is easy to understand. What lawyers can presume to exist within constitutional states, namely an authority that is entitled and committed to enforcing the law, is not available in the international system.

Is law – understood as a normatively meaningful form of social regulation – conceivable or indeed possible beyond the nation-state? This is the guiding question that informs our inquiries in Law and Governance in Postnational Europe: Compliance beyond the Nation-State. It is based on the conviction that governance beyond the nation-state must contain elements of law if it is to be considered legitimate. The focus therefore is on compliance as an element of social order, not only as a means of effective problem-solving. We will demonstrate that a record of good compliance in multilevel systems does not depend on an agent that is generally able to enforce rules on the basis of a superior availability of material resources. Our case studies show that with respect to some regulations the EU displays better compliance records than comparable regulations in the Federal Republic of Germany. Even compliance with WTO regulations can be compared favorably with compliance with German regulations. A high degree of legalization, combined with well-functioning verification and sanctioning systems, seems to be more important. However, smart institutional designs can cause their own problems. If the intrusions into the constituent units of a multilevel system are too strong and compliance works too well, then compliance crises may result, which involve an open, normatively-driven rejection of the regulation. This is especially true if social integration lags behind and a common public discourse is absent.

Introduction: Cross-level comparison

The aim of this chapter is to prepare the dependent (section 2.2) and independent (section 2.3) variables – as identified in the introduction – for the empirical analysis conducted in the case studies of chapters 3 to 5. Our approach to the analysis of compliance differs from other research in the field. Unlike the bulk of pre-existing studies, we aim to explain compliance by comparing similar rules at different levels. The main reason for our comparative approach is that it allows us to select cases based on variations in the independent variable and thus to approach our topic in a quasi-experimental fashion. Although the comparative method promises to provide new insights by systematically focusing on the distinction between politics in the nation-state and politics above the nation-state, we are well aware that the literature advances a number of reservations to such an approach. Some argue that the EU is a too specialized polity and therefore cannot be compared to either a nation-state or an international regime. Caporaso (1997: 1) has summarized this view: “Processes of integration in Europe are specialized, and qualitatively different from processes elsewhere. The historical thrust of the EC is so novel that it truly represents a Hegelian moment, a novelty that, however prescient in terms of future developments, has no current analogies.

Risk regulation in the EU and the WTO

The trade in foodstuffs is a particularly interesting candidate for the comparative analysis of compliance with inconvenient market-correcting rules. Analyzing foodstuffs policy underlines the fact that regulatory policy involves a number of difficult regulatory issues, such as the need to integrate expertise, the problem of dealing with conflicting points of view concerning those risks attributable to foodstuffs and/or nutritional habits, the growing importance of new concerns about animal welfare and the environmental dimensions of foodstuff production, as well as the impact of cultural traditions on production and consumption. Furthermore, because of their proximity to the everyday life of consumers, foodstuff issues rank prominently on the public agenda of domestic politics and, as such, can easily become politically sensitive issues.

A comparative analysis of compliance with foodstuffs regulations, however, is difficult to conduct across all three of the levels employed in this project. Due to the increasing relevance of European and international policies to the member states, important regulations are often authored by either international or European authorities (cf. Schlacke 1998; Hilf and Reuß 1997; and Ritter 1997) without reserving many competencies for the federal level. This chapter accordingly avoids conducting a comparison across all three levels and instead concentrates on comparing compliance with the rules of the World Trade Organization (WTO) with the compliance enjoyed by the rules of the European Union (EU).

Intergovernmental redistribution

Intergovernmental redistributive arrangements have to date been largely neglected in analyzing international relations and researching questions of international compliance. Game theorists argue that the paucity of intergovernmental redistribution is explained by the fact that redistributive policies are appropriately modeled as zero-sum games in which any gain for one party corresponds to an equivalent loss for the other (Morrow 1994). Since states are taken to be self-referring agents, which “develop their own strategies, chart their own courses, make their own decisions” (Waltz 1979: 96), the emergence of a redistributive regime and compliance with it, on the part of those who have to pay into it, must be regarded as extremely unlikely. Since the enlightened self-interest of the addressees of the regulations cannot be relied upon to ensure payment, an intergovernmental central body is required which is able, in doubtful cases, to enforce compliance even against resistance. It may thus be argued that the fact that there is no significant international redistributive regime is ultimately attributable to the anarchical nature of the international system.

Alongside this state-oriented explanation, one can also find an explanation in the literature that is informed by the communitarian theoretical tradition. Miller (1988) and Goodin (1988) point out that questions of justice can meaningfully be dealt with only in the context of a political community which has a shared understanding of the content of sound policy.

Any integrating or already integrated market that encompasses several jurisdictions or states is usually confronted in one way or another by the problem of state aids or subsidies, which are handed out by governments or governmental agencies to businesses that settle or have already settled in their jurisdiction. Economic theory posits that such measures distort the markets for investment and employment because they influence the decision making of enterprises, luring them into allocating resources according to political rather than economic, market-driven reasons (Färber 1989; Zippel 1993). Other strands of economic theory, however, disagree with this assessment of the impact of political interference on market forces. Whereas Keynesian demand-side approaches favor such interventions in order to correct for market failures, as well as smooth out and stabilize the steady growth of the economy (Hall 1989; Ikenberry 1993; Franz 1992), neoclassic supply-side economics considers such financial support to be part of the problem. Significant financial support requires big government, high taxes and equally high budget deficits. These usually lead to higher inflation and unnecessarily high interest rates, which – taken together with the high taxes – reduce investment in the real economy and, hence, lead to unemployment (Siebert 1990, 1995, 2000).

As far as empirically oriented economic literature goes, it is difficult to settle this debate once and for all because the decision of an enterprise about where to locate its investment seems to be based on a very complex set of reasons, including market access, transaction costs (infrastructure, suppliers), taxes, labor costs, and the amount of state aid available (Liemt 1992; Heise et al. 1998).